Luk Wing Nin v. Chevalier (HK) Ltd. and Another
Read the full judgment text of HCPI 414/2000 on BabelCite. This High Court CFI judgment was delivered on 24 April 2006.
1. The plaintiff brings this claim against the defendant for damages in respect of the death of Luk Yim Ping (“the deceased”) who was found dead lying at the bottom of a lift shaft of the No. 2 lift, a cargo lift, on the night of 12 April 1997 in the Man Foong Industrial Building where she worked as a cleaner.
Cited by 1 case
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HCPI 414/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO.414 OF 2000 ------------------------------ BETWEEN
------------------------ Before : Hon Suffiad J in Court Dates of Hearing : 14–18 November, 12–14 December 2005 and 19 January 2006 Date of Judgment : 24 April 2006 ------------------------ J U D G M E N T ------------------------ 1.The plaintiff brings this claim against the defendant for damages in respect of the death of Luk Yim Ping (“the deceased”) who was found dead lying at the bottom of a lift shaft of the No. 2 lift, a cargo lift, on the night of 12 April 1997 in the Man Foong Industrial Building where she worked as a cleaner. Background 2.At the time of the fatal accident to the deceased, she was 22 years old. She was married in China and only came to Hong Kong (on a permanent basis) some six days before the fatal accident. 3.In China, she had given birth to her first born seven weeks before coming to Hong Kong. She came to Hong Kong alone leaving her seven weeks old baby in China together with her husband. 4.After coming to Hong Kong, the deceased lived in the Western District with her father and some of her other siblings who were already in Hong Kong. 5.Through an aunt of the deceased by the name of Law Lam Fai, the deceased was taken on as a cleaner at the Man Foong Industrial Building and started work there three days before this accident. As a cleaner of the building, she was allowed to collect scrap paper and discarded cardboard boxes from the various industrial units in the building to sell off (at a nearby scrap dealer) and to pocket the proceeds herself. This was done on a daily basis, usually towards the end of the work day since the scrap dealer normally closed at around 7.30 p.m. each day. 6.The Man Foong Industrial Building has 24 floors served by four lifts. The No. 1 lift is a passenger lift, the other three (including the No. 2 lift) are cargo lifts. The No. 2 lift serves all the floors of the building while the No. 3 and No. 4 lifts serve respectively the even numbered and odd numbered floors. All the lifts were installed in 1977. The lifts of the building were, at the time of the accident, and have for a long time before the accident been exclusively serviced and maintained by the defendant. 7.Lifts operators were engaged by the building managers of Man Foong Industrial Building to operate all the four lifts in the building. However the evidence was that between 4 p.m. and 5 p.m. each day, the lift operator, at least in respect of the No. 2 lift, takes an hour’s rest and during that one hour, no lift operators will be operating that lift. Moreover, the lift operators stop work at 6 p.m. (including Saturdays) after which time, there will again be no lift operators operating the lifts. Events on day of accident 8.12 April 1997 was a Saturday. That day, the deceased attended for work as a cleaner at the Man Foong Industrial Building as usual. It was a full day’s work for the deceased despite it being a Saturday. 9.In the afternoon of that day, the defendant had sent along two lift technicians (Fung and Lo) to carry out regular weekly maintenance work on the No. 2 lift. Service of the No. 2 lift was stopped during such regular maintenance by the technicians. 10.At about 3.50 p.m. the technicians finished their maintenance work and the No. 2 lift was handed back to the lift operator, Chan Kwok Keung, whereupon service of the No. 2 lift resumed. 11.At about 5.30 p.m. the deceased requested Chan Kwok Keung to allow her to use the No. 2 lift to transport the rubbish/scrap paper down from the upper floors in order to get the scrap paper to the scrap shop before it closed for the day. 12.At about 6.40 p.m. the aunt of the deceased, Law Lam Fai, came over to the Man Foong Industrial Building to look for the deceased and to help her with taking the scrap paper to the scrap shop for selling. She could not find the deceased in the building, but instead found some rubbish basket, and some cleaning equipment left unattended on the lift lobby of the 10th floor. When she got down to the ground floor, Law found a large metal rack with scrap paper inside left in the No. 2 lift again unattended. Law then moved the metal rack out of the No. 2 lift, took the scrap paper to the scrap shop for selling, then returned to the Man Foong Industrial Building some time after 7 p.m. When she still could not find the deceased in the building, she called the family of the deceased to see whether the deceased had returned home, but was told she had not. As a result of that phone call by Law to the family of the deceased (who lived in the Western District) the father of the deceased and several other family members went along to the Man Foong Industrial Building to help look for the deceased fearing that something may have happened to her. 13.At about 7.45 p.m. another passenger using the No. 2 lift heard loud scratching noises and saw some smoke when travelling in that lift. He reported the matter to the watchman who then called the defendant to send someone to check the No. 2 lift. 14.At about 8.45 p.m. as a result of the call by the watchman to the defendant for someone to come to check the No. 2 lift, Cheung Bo Fung, a lift technician from the defendant, arrived at the Man Foong Industrial Building to inspect the No. 2 lift. During his checking of the No. 2 lift, the body of the deceased was found at the bottom of the lift shaft of the No. 2 lift. Police was then called to the scene. Police Investigation 15.After police had been called upon the body of the deceased being found at the bottom of the No. 2 lift pit, the police conducted an investigation into her death. 16.The post mortem examination report showed that the deceased had suffered various multiple fractures including rib cage, spine and other part of her body as well brain damage. The cause of death was put down as being caused by those multiple injuries. 17.Statements taken by the police from other workers at the building also revealed that at about 5.30 p.m. the deceased and one Lo Mei Mei, a worker working in one of the industrial units of the Man Foong Industrial Building took the No. 2 lift from the ground floor to go up the building. The deceased got off on the 10th floor and Lo Mei Mei traveled up to the 18th floor getting out on that floor. As Lo Mei Mei came out of the No. 2 lift on the 18th floor, one Cheung Chok Yue and several of his colleagues entered the No. 2 lift from the 18th floor. After entering the lift on the 18th floor, Cheung Chok Yue and his colleagues experienced what can only be described as an abnormal occurrence travelling in the No. 2 lift before they finally reached the ground floor. I will come back to deal with the abnormal occurrence in a later part of this judgment. 18.It would appear from statements taken by the police from other people including occupiers and tenants of Man Foong Industrial Building, that the deceased was last seen at around 7 p.m. to 7.15 p.m. by a tenant of the building collecting waste paper alone at the 3rd floor lift lobby. 19.Further police investigation into the circumstances of the death of the deceased found nothing to indicate foul play or suicide. The evidence of Cheung Chok Yue and the abnormal occurrence of the No 2 lift on 12 April 1997 20.On the day of the accident, Cheung Chok Yue and four other collegues, having finished work at 5.30 p.m. got into the No. 2 lift on the 18th floor (after Lo Mei Mei had got out). They pressed the button for the “G” floor intending to go down to the ground floor to leave the building. Then they pulled closed the landing door and the lift car door. However the lift did not move but the direction indicator indicated “Up”. Suspecting that the landing door may not have been properly closed, one of the colleague of Cheung pulled open the lift car door to try to pull open the landing door so as to close it again properly. But before he could pull open the landing door, and whilst the lift car door was still open, the lift suddenly started to move upwards. The lift travelled all the way up to the 24th floor with the lift car door open. 21.When the lift stopped on the 24th floor, the occupants in the lift did not open the landing door on that floor and nobody entered the lift from the 24th floor. Cheung and his colleagues then closed the lift car door, pressed the “G” floor button again and the lift then went down to the Ground floor. 22.That in a nutshell was the evidence given by Cheung Chok Yue who was called as a witness by the plaintiff in this matter. 23.Cheung Chok Yue had previously given a statement of similar effect to the police when the police investigated this matter after the accident to the deceased. 24.The only slight difference between his evidence given in court and what was stated by him in his witness statement given to the police shortly after the accident in 1997 was that he had stated in his witness statement to the police that the “G” floor button when it was pressed by those in the lift after they had entered did not light up and continued to remain unlit all the way up to the 24th floor. However, in his evidence given in court, he was unable to remember that when asked about it. 25.One further piece of evidence which came from Chueng Chok Yue under cross-examination, when he was asked by counsel for the defendant whether he had come across any other abnormal behaviour of the No. 2 lift apart from what he had experienced on the day of the accident to the deceased, drew from Cheung the further answer that some six months before 12 April 1997, he had witnessed one occasion when the No. 2 lift stopped far below the floor landing and that the occupants inside the lift had to be rescued by being pulled up to the landing after the lift door and landing door was opened. 26.I have no difficulty accepting the evidence given by Cheung as to the abnormal occurrence which he had experienced on the day of the accident. The fact that he could not remember whether the “G” floor button lit up or not when asked about that in court does not in any way change my view of his evidence. That he could not remember one small detail when asked about it some eight years after the incident does not surprise me in the least. 27.I also accept his evidence as to witnessing the account of what had happened some six months before the accident. Investigation by EMSD 28.Immediately after the accident to the deceased matter was then investigated into (in particular the No. 2 lift) by the Electrical & Mechanical Services Department (EMSD). That investigation resulted in a Report by the EMSD dated 16 August 1997 prepared by Wong Lap Chi, an Engineer of the EMSD who had arrived at the scene at 11.30 p.m. on the night of the discovery of the deceased’s body at which time a preliminary inspection of the site had been made by him in the company of police officers as well as a Ma Kam Shing, a registered lift engineer of the defendant. 29.In conducting a full investigation by the EMSD, site investigations were also carried out on 13, 14 April 1997, 1 May 1997, 24 June 1997 and 4 July 1997 by both EMSD and the defendant jointly. 30.The findings of the EMSD as contained in its report can be summarised as follows :
31.As for the possible scenarios and causes, it was stated in the report by EMSD that :
32.The report by the EMSD went on to list out from the findings made, the possible ways for the deceased to have entered into the lift shaft which are :
33.As a result of what was found by the EMSD in their investigation into the matter and the lift, the conclusion reached by the EMSD was that it was not possible to establish how the deceased had entered the lift shaft in order for her to fall into the lift pit of the No. 2 lift, although the damage to the counterweight screen and the “clean” marks on the surface of the travelling cables would suggest that the deceased had fallen from the middle floor level of the building into the lift shaft. 34.The landing door locks, car door switch were found to be working properly. The lift car could not be set or kept in motion unless all the landing doors and car doors were properly closed and locked (except when the lift was at the re-levelling zone). 35.There was no evidence to suggest that any of the landing door locks had been deliberately tampered with, nor anything to suggest that the deceased had climbed onto the roof of the lift car and falling into the lift shaft from the roof of the lift car. 36.Finally, it was expressly stated in the report that the report has not considered the possibility of criminal acts such as robbery, attack or murder which is beyond the scope of EMSD’s investigation. 37.By way of recommendation, it was suggested by the EMSD that :
Investigation by the defendant 38.The defendant also carried out its own investigation into the matter and came out with a report dated 26 July 1997 signed by K.M. Tse, the General Manager of the defendant which was addressed to the EMSD. 39.In that report, the factual findings of the defendant were no different from that of the EMSD and they do not bear repeating here. 40.The defendant’s report concluded that there were three possible ways in which the deceased could have entered the lift shaft of the No. 2 lift. 41.Firstly, through an open landing door with the lift car not at that landing, but that would not be normal since the landing doors could not be pulled open when the lift was not within the unlocking zone at that landing. Moreover, the investigation had shown that all the landing door locks were operating normally and effectively. Therefore this possibility was ruled out. 42.Secondly, that the unlocking mechanism of a landing door had been interfered with by someone. However, this possibility was also ruled out since the investigation had shown that once a landing door was opened, the lift would not move and there was no report on the day of the accident that the lift service had been stopped or suspended, which would have been the case had a landing door been so opened by any means. Moreover, there was nothing found during the investigation to suggest such unauthorized interference. 43.The third possible way for the deceased to have found her way into the lift shaft was, while in the lift car, to have stopped the lift car cage at about 800 mm below a landing level (i.e. within the unlocking zone), then opening the car door and landing door, climbing up onto the landing and then onto the top of the lift car. This possibility was also ruled out because unless the deceased was familiar with the design and operation of the lift and willfully wanted to interfere with the lift in such a manner, such possibility was considered to be very low. 44.The defendant’s report therefore concluded that it could not identify the cause and the course of that incident of the deceased falling into the lift shaft, even though it was probable that (if the deceased had fallen into the lift shaft through an open landing door) it would not have been at one of the lower floors. 45.The report further stressed in its conclusion that the investigation had shown that the lift car could not move or continue to move once the car door or any one of the landing doors (or both) were open. The lift will only run when all the doors are closed (and locked) except during levelling. 46.The recommendations made in that report are as follows :
The plaintiff’s claim 47.Initially, the plaintiff’s claim was brought against both Chevalier (HK) Ltd., as well as against the Incorporated Owners of the Man Foong Industrial Building. However, before the trial of this matter, the plaintiff had discontinued its claim against the Incorporated Owners, thus leaving only Chevalier (HK) Ltd, being the only defendant proceeded against. 48.The claim brought by the plaintiff against the defendant is based on negligence, negligence in the proper maintenance of the No. 2 lift. 49.In this respect, the plaintiff also prays in aid res ipsa loquitur to substantiate his claim since the cause of the accident cannot be established from the various investigations made both by the EMSD as well as by the defendant themselves. 50.The defendant on the other hand denies negligence on their part in their maintenance of the lift as well as the fact that res ipsa loquitur is not applicable in the present case. 51.The main area of contention between the parties at the trial related to the expert evidence relating to liability called by the plaintiff and the defendant respectively. 52.I shall turn now to deal with the expert evidence called by the parties respectively on the issue of liability. The experts on liability 53.The plaintiff had instructed as expert witness, Dr Cheung Kie Chung, an Associate Professor in Electro-mechanical Engineering in the Engineering Department of the Faculty of Science of the University of Hong Kong, as well as being a member of the Institute of Mechanical Engineer and a Chartered Mechanical Engineer. 54.The defendant instructed as its expert, Dr Albert T.P So, a qualified engineer and an Adjunct Professor of the Department of Building and Construction of the City University of Hong Kong. 55.The expertise of both the above expert witnesses were not challenged and I accept both of them to be experts in the relevant field of expertise in giving their evidence in this case. 56.Both experts, Dr Cheung and Dr So, having been instructed and appointed by the parties in this matter, jointly inspected the lift system of the No. 2 lift of the Man Foon Industrial Building on 4and 23 April 2003, jointly interviewed Cheung Chok Yue (relating to his experience of the abnormal behaviour of the lift in question on the day of the accident to the deceased) on 30 April 2003, and jointly conducted a further inspection of the lift on 2 August 2004. 57.Thereafter both experts prepared a joint report in written form setting out their respective views and opinions which report was signed by Dr Cheung on 3 December 2004 and signed by Dr So on 20 December 2004. Their joint report formed the basis of their expert opinion in this matter. 58.The report starts off by giving a chronology of events which took place in relation to the No. 2 lift and the movements of the deceased (or so much of it as known) on that fateful day. 59.It goes on to record the abnormal occurrence experienced and recounted to them by Cheung Chok Yue. 60.Next it dealt with the safety devices in lifts upon which both experts agree that the first objective is to prevent passengers in a lift from falling out of it, whilst the second objective is to ensure that the occupants of the building do not fall into the lift shaft through one of the landing doors. In this respect, both these objectives are achieved by the use of limit switch in the lift car door to detect the proper closure of the lift door as well as limit switches in each of the landing door to detect the proper closure of the landing doors. Both types of limit switches form an important part of the control circuit for the lift to move. In short, for the proper operation of the control circuit for the lift, all the landing doors as well as the lift car door must be properly closed (and locked) before the lift will move. The corollary to that is that when a lift is in motion, each of the landing doors are locked by a latch. The lock of a particular landing door will only be disabled when the lift car is almost level with the floor level of that landing, and only then can the landing door be opened with the lift in place, i.e. the unlocking zone. 61.For Man Foong Industrial Building, the control circuit of the lift is relay-based. 62.It then describes the workings of a relay and I can do no better than cite what is stated in the report in that respect :
63.The possible faults with relays can be due to one of four things, namely, the coil (damaged insulation on the coil winding which weakens the attractive force); the spring (which may lose its stiffness after prolonged use); the contact surfaces (due to pitting of the contact surfaces after prolonged use); or the crank pivot (from wearing out due to prolonged use). 64.Dealing firstly with the opinion expressed by Dr Cheung, he relies heavily on the abnormal behaviour of the lift as experienced by Cheung Chok Yue on the day of the accident when the lift moved up to the 24th floor from the 18th floor with the lift car door opened. 65.In this connection, Dr Cheung takes the view that such unusual behaviour of the lift is due to some fault with the relay within the control circuit. According to Dr Cheung, the fault with the relay which can cause the unusual behaviour of the lift to move with the lift car door open was unlikely due to fault of the coil or the spring within the relay because a damaged or worn out coil or spring in a relay will not recover and can be easily detected later. However, if the fault was due to the contact surface of a relay being pitted, thereby causing occasional welding, it’s switching behaviour becomes erratic and unpredictable, but at the same time may not be consistently so. 66.Based on the above view taken, and also the fact that cleaning equipment were found on the 10th floor lift lobby unattended as well as the metal rack full of scrap paper which was found in the No. 2 lift at the Ground floor, also unattended, Dr Cheung paints the scenario that what likely happened to the deceased resulting in her body being found at the bottom of the lift pit would be along the lines that the deceased had taken the cleaning equipment up to the 10th floor as well as the metal rack to collect scrap paper there. She then called for the No. 2 lift intending to go down to the Ground floor with the scrap paper in the metal rack. Due to the fact that the metal rack had a width almost as wide as the opened lift door, he surmised that the cleaning equipment was put to one side on the lift lobby. 67.When the lift arrived on the 10th floor, the deceased opened the landing door as well as the lift car door, then pushed the metal rack inside the lift car. Just as the deceased was between or near the lift doors, the lift car unexpectedly moved up (with both the landing door and lift car door still open) causing the deceased to lose her balance and fall into the gap left between the rising lift car and the landing. 68.After the deceased had fallen into the bottom of the lift pit, the lift car later returned to the Ground floor and that was where Law Lam Fai later found the metal rack with the scrap paper still in the No. 2 lift. 69.In painting that scenario described above, Dr Cheung had this to say :
70.Dr Cheung goes on to deal with the possibility of the deceased having found her way into the lift shaft by either climbing up to the roof of the lift car either from the landing or through the trap door inside the lift (and then falling over the rear side of the lift roof). This possibility was ruled out by Dr Cheung for the same reasons that the EMSD report gave. 71.Dr Cheung also question the competency of the lift mechanic, Fung Wing On, employed by the defendant to carry out regular maintenance of the lift based on the answers given by him in the death Inquest carried out in respect of the deceased which seemed to indicate that Fung was not fully aware of the mechanism controlling the lift movement and the safety mechanism. 72.Finally Dr Cheung also takes the view that having been told by the maintenance staff of the defendant that they do not test each relay for proper switching during their maintenance visit but that relays would only be replaced when fault is detected that such practice is dangerous due to the fact that the failure of the relay could be intermittent. 73.Turning now to deal with the opinion given by Dr So who was instructed as the expert for the defendant, his opinion on many controversial matters are diametrically opposed to that expressed by Dr Cheung. 74.In so far as the abnormal experience encountered by Cheung Chok Yue was concerned, Dr So did not view the failure of the lift to move initially as anything abnormal because it could be explained by the door not having been properly closed. Neither did the “G” floor button not being lit when pressed seemed to him to be abnormal as it could also be explained in that the call was not properly registered when the button was pressed. However, Dr So accepts that when the car door was open, the fact that the lift moved up to the 24th floor was abnormal. 75.Dr So also accepts in theory those possible faults with relays as stated by Dr Cheung. However, Dr So takes the view that it is very unlikely for an electro-mechanical relay to be rendered faulty one moment, and then returns to working normally the next moment (i.e. the intermittent or erratic behaviour stated by Dr Cheung). Dr So states that electro-mechanical relays have been confirmed to be the most reliable control devices in that industry relating to electrical devices. When contacts in a relay become heavily pitted such that it becomes welded, it will not separate by itself automatically without leaving any trace behind. 76.Therefore according to Dr So, if the fault was with the relay, such fault should persist and the faulty relay will be discoverable later when investigation is carried out. It is most unlikely that there will be such intermittent fault with a relay in the way theorized by Dr Cheung which is not susceptible to discovery when the mechanism is examined later. 77.Therefore says Dr So, Dr Cheung’s theory linking both the abnormal experience of Cheung Chok Yue with the accident to the deceased to faulty relay or relays in the lift system must be a flawed theory since no fault with any of the relays were discovered when the entire system was examined and investigated into immediately after the accident by both EMSD together with the defendant’s qualified personnel. If there was a badly worn relay in the lift system, that should have been discovered by the EMSD investigation, but that was not the case. 78.Moreover, according to Dr So, for such an accident to have happened in the way Dr Cheung theorized it to have, there needed a “double fault” condition in respect of the relays to allow the lift car to move when both the lift car door and the landing doors were open. Such “double fault” condition is so rare in engineering that it can be considered impossible. Here there was not even evidence to show even a single fault with the relays, let alone a double fault. 79.Initially in the joint report prepared by both experts, Dr So had proposed three possible scenarios by which the deceased could have found her way into the lift shaft. However, by the time of the trial, Dr So had abandoned the first two possible scenarios suggested by him, probably because both of them were too far-fetched. He was therefore left with only the third possible scenario to explain how the deceased could have found her way into the lift shaft which was that she was murdered by some persons unknown. Response by Dr Cheung to Dr So 80.In response to the point made by Dr So relating to the “double fault”, Dr Cheung states that from the circuit sketch supplied by the defendant as to the lift system, it does not take a “double fault” to energise the Up or Down contactor. One faulty relay (in the manner already described, namely being pitted thereby causing intermittent welding) at the output of the Up/Down Selective circuit will cause the lift car to move irrespective of the door closure status; in other words irrespective of whether it was just one or more of the landing doors and/or lift car door which remained open. Since the fault with the relay is intermittent, it may not appear during the investigation by EMSD and the defendant’s maintenance staff after the accident. 81.Moreover, some relays could have been replaced after the accident. Assessment and Findings on the expert evidence 82.I have no difficulty with accepting the fact that both Dr Cheung and Dr So are very experienced and well qualified professionals in their field of engineering and therefore both are well qualified to speak as experts giving their expert opinions in this case. 83.However, the fact that their expert evidence, in particular the opinions they have expressed in this matter are so far apart is itself a testimony to the difficulty which faced not only counsel but also the experts in this matter in that what has happened resulting in the death of the deceased is something which, under normal circumstances, could not and should not have happened. Yet after a long and searching investigation carried out by the EMSD together with the maintenance staff of the defendant, no one is any the wiser as to how it came about that the deceased could have fallen into the lift shaft. 84.Because of the lack of any positive findings or evidence which could throw light on how it could have happened, both experts were put in the most difficult position having to explain something which defies explanation. 85.Opinions of experts are only as good as the factual basis upon which those opinions are founded. 86.Quite understandably therefore, the lack of any factual findings after the investigation conducted by EMSD and the defendant in this case led both experts into theorizing and hypothesizing how the deceased could have ended up at the bottom of the lift pit, at times even crossing over into the realms of speculation. 87.The weak point in the opinion evidence of Dr Cheung was that his theory of welding due to a heavily pitted contact in a relay could not be replicated upon testing and examination of the lift in question by the experts. No doubt it was due to this failure to replicate such phenomenon that led Dr Cheung to the view that such a fault must necessarily be intermittent. 88.From this there emerges a second weak point in the opinion expressed by Dr Cheung. 89.Even if it was accepted that the fault of the relay due to welding of the contacts caused from being pitted, it remains a fact that no faulty relay was found by the EMSD during their joint investigation with the defendant immediately after the accident to the deceased which could support his theory that the accident occurred as a result of a faulty relay. 90.From the evidence of Dr Cheung, it must be quite apparent that a heavily pitted contact in a relay which would result in welding between the contacts is a matter which is readily discernable even to the naked eye when the relay is examined. That point is also made by Dr So. 91.Confronted with this point, Dr Cheung’s only fallback position was that some relays could have been replaced after the accident. This can only be pure speculation on the part of Dr Cheung because there just is not one iota of evidence that any relays had been replaced by anyone, let alone the defendant. 92.Indeed this theory of faulty relay came only from Dr Cheung after he was instructed in this matter as the expert for the plaintiff. There was no suggestion of faulty relays by anyone before that therefore it is quite inconceivable that the defendant would have replaced any of the relays after the accident but before the investigation by the EMSD. In any event, there is no such evidence before me of that taking place. 93.Thirdly, when Dr Cheung gave evidence in court, he brought along with him a model made by himself to illustrate his theory of how a relay fails to work properly when welding occurs due to pitting. 94.However, the model used for such an illustration, does not show the occurrence of contacts welding due to pitting but that a relay with welded contact was used for that purpose (as opposed to one with heavily pitted contact). Accepting that the model was not to illustrate the frequency of welding when there is pitting in the contact, but only to illustrate the consequence flowing from the welding, nevertheless the model, in the way constructed by Dr Cheung, was far too much an over-simplification of the control circuit in the lift system of the No. 2 lift. In that sense, the model could not be representative of the circuit control of that lift system in question but could only be used to illustrate the “theory” propounded by Dr Cheung, but not in relation to the circuit control system of the lift in question. 95.As for the dispute between the experts whether there was a single fault with the relay or a double fault with the relay when the lift moved up with both the lift car door as well as the landing door open, that necessarily involved some element of speculation from both experts since the circuit sketch referred to by them in Figure 9 of their report is a sketch of the car and landing door interlock circuit. What that sketch does not show are the presence, role and relationship of the different relays in the car and landing door interlock circuit system. 96.Therefore their evidence as to the roles of the relay, and whether one or more relay had to be at fault, was not only theoretical, but must involve some element of speculation in the absence of any such relay shown on the circuit sketch. 97.Turning now to deal with the evidence of Dr So, while it is appreciated that as the expert of the defendant, he is, unlike Dr Cheung, not obliged to prove anything or to put forward any positive case to assist his clients, the sum total of his evidence can be said to dispute and contradict each and every theory or hypothesis that Dr Cheung has seen fit to make in an attempt to advance the case of the plaintiff. 98.This can immediately be seen in that while he accepts that the abnormal experience encountered by Cheung Chok Yue was abnormal in that the lift did move up when the lift car door was open, he does not attempt to explain how that could have happened when the lift system was inbuilt with double fail safe system to ensure such abnormality not happening. The closest he comes to explaining that was to say that it must have been due to the car door cam lock which permitted that to happen. 99.As for the possible scenarios which could have allowed the deceased to be in the lift shaft in order for her to fall all the way down into the lift pit, Dr So was singularly unhelpful. His first two possibilities contained in the joint report had to be abandoned no doubt due to its inherent improbability. He was therefore relegated to only relying on his third possibility which was that she was murdered. This was advanced by him as the only explanation he thought possible despite the fact that intensive police investigation into the matter have led them to conclude that there was no evidence of any type of foul play in the case. That was supported by the verdict returned at the coroner’s inquest into the deceased’s death. 100.I therefore find myself in a rather curious position which does not often occur in a civil matter in that I am unable to give sufficient weight to the evidence of either of the two experts called by the parties on the issue of liability so as to feel comfortable in accepting the evidence of one of them over the other. 101.I therefore conclude that I cannot accept the evidence of either Dr Cheung nor that of Dr So as to how this accident could have come about to the deceased. Decision on Liability 102.The main thrust of the plaintiff’s case on liability is based on res ipsa loquitur. 103.The Court of Final Appeal has said in the case of Sanfield Building Contractors Ltd v. Li Kai Cheong [2003] 6 HKCFAR 207 that res ipsa loquitur did not denote a doctrine but merely a “mode of inferential reasoning”. The mode applied only to accidents of unknown cause. It did not matter that the immediate cause of an accident was known, as long as the cause on which the issue of liability actually turned was unknown, the accident was regarded as one of unknown cause. 104.The mode came into play where an accident of unknown cause was one that would not normally happen without negligence on the part of the defendant. In such a situation the court was able to infer negligence on the defendant’s part unless he offered an acceptable explanation consistent with his having taken reasonable care. The essence of this was “an event which in the ordinary course of things was more likely than not to have been caused by negligence was itself evidence of negligence.” 105.This however did not put the onus on the defendant to disprove negligence. 106.These therefore are the legal principles which need to be applied in the present case in determining liability. 107.It is clear from those parts of the experts evidence which were not in dispute between them, and also from the EMSD investigation report that the system of operation of the No. 2 lift in Man Foong Industrial Building was designed in such a way that if the lift had operated properly, there could not be any way for anyone to have entered into the lift shaft accidentally and in a non-deliberate way thereby falling to the bottom of the lift pit. 108.It is equally clear in this case that that the deceased had somehow entered the lift shaft and fallen to the bottom of the lift pit where her body was found. 109.Whilst I have not been able to put any weight on those parts of the opinions of the two experts which are disputed between them, I am able to, from all the evidence in this case, in particular from the investigation report and findings by the EMSD come to the finding that the deceased did not in any deliberate way find her way into the lift shaft. There could be no reason for her to do so. It follows from such finding therefore that the deceased could only have entered the lift shaft in some accidental manner not of her design. As to how that happened nobody is the wiser. 110.That however, is something which could not and should not have happened if the lift was working and operating properly. 111.That the lift was not operating properly on the day of the accident is further supported by the abnormal occurrence of it as experienced and told in evidence by Cheung Chok Yue. An abnormality which the defendant’s expert Dr So had to acknowledge, namely the lift moving up to the 24th floor with the car door open. 112.That abnormality occurred just hours after regular maintenance works had been carried out by the defendant’s technician that same afternoon on that very lift. 113.For these reasons and findings, I am able to infer that the only way in which the deceased could have gotten into the lift shaft was due to the fact that the lift did not operate properly. Exactly how that came about is something that will probably never be known by anyone other than the deceased. This therefore must be the unknown cause of the accident as it was explained in Sanfield’s case. 114.It was submitted in argument by Miss Lee, appearing for the defendant that res ipsa loquitur has no application in this case. It was argued by her on this basis. For res ipsa loquitur to apply, it needed to be shown that the cause of X is unknown, but Y was under the management of the defendant and X is such that in the ordinary course of things does not happen unless the defendant was managing Y negligently. From that it can be seen that X must be a function of Y and must be something that happened to Y. 115.In the present case, Miss Lee says that the plaintiff is effectively saying that the cause of the deceased falling down the lift shaft is unknown but the lift was under the management of the defendant therefore there is no causal relationship at all between the deceased falling down the lift shaft and the management of the lift. 116.Very simply, as I have endeavoured to demonstrate above, the fallacy with that argument of defendant’s counsel is that the unknown cause of the accident (which is the issue on liability) is how it came about that the deceased entered the lift shaft which is a precedent to her falling down the lift shaft. That is something which could not ordinarily have happened if the lift was operating normally since the whole system according to all the experts were designed to safeguard just such a situation from happening, and it could not have happened unless the lift was not operating normally. 117.Once that is established, the occurrence of the deceased being able to enter the lift shaft must, per se, be evidence of the negligence of the defendant in the absence of any explanation put forward by the defendant as to how the deceased could have entered the lift shaft consistent with them not being negligent. 118.In this respect, the only possible scenario advance by the defendant’s expert, Dr So was that the deceased was murdered, having abandoned the two other scenarios as to how the deceased could have entered the lift shaft. 119.I have no hesitation in rejecting that postulation in the light of the police investigation into the deceased death to the effect that there was simply no evidence of foul play in this case. 120.I therefore find the defendant liable to the plaintiff for the death of the deceased. Quantum 121.In so far as quantum is concerned, there are four items of claim which have been agreed between the parties as follows :
The above items will be allowed. 122.The main dispute between the parties relate to dependencies and loss of accumulation of wealth. Dependencies 123.The dependents of the deceased are :
124.There is no dispute that at the time of her death, the deceased was working as a cleaner at the Man Foong Industrial Building, a job which she had just acquired and in fact was at that job for only three days when the accident happened. 125.She was paid $6,000 per month for that job and was allowed to pocket the moneys she could obtain from selling scrap paper collected by her from the various industrial units at that building which her job required her to clean. 126.The evidence showed that she was able to make on average $100 per day (the amount varied from day to day) selling scrap paper which I have no reason to disbelieve. 127.The defendant dispute this on the basis that they were in no position to verify her earnings since the defendant has no knowledge, and is not in a position to know of such matters. 128.However, it would seem that the selling of scrap paper was a perk to her which was recognized and agreed to by her employers and furthermore was designed to be of mutual benefit both to the deceased (who could pocket the extra money made from selling off the scrap) and the people she serviced (by her disposal of such scrap paper and cartons for them). 129.The defendant also disputes the fact that the plaintiff says that the deceased was promised 13 months of basic salary. I am not the least surprised by such a term bearing in mind that such was almost a standard term of employment in Hong Kong at the time the deceased obtained that job in April 1997, before the economic downturn which occurred towards the latter part of that year. 130.I therefore find that at the time of the accident, the average monthly earnings of the deceased would be [$6,000 x 13 + ($100 x 26 x 12)] ÷12 giving $9,100. 131.There is also evidence from the plaintiff that the deceased was thinking of moving on to work as a worker at a construction site where she hoped to earn a higher income than from her job as a cleaner. That was supposed to be arranged by a relative with connections at working in construction sites. However the accident overtook matters in this respect. 132.In view of the fact that no such arrangements had as yet been finalised by the time of the accident, it would not be right for me to assess damages on the basis as though such arrangements had been made in the way suggested by the plaintiff. 133.It would appear however, that the deceased being the hard working person and mother she is and who was more than eager to make money for her new born baby left behind in China before her baby and husband could join her in Hong Kong, I should adjust the figure of $9,100 being her average total monthly earnings at the job of a cleaner in the Man Foong Industrial Building, to a marginally higher and rounded off figure of $10,000 per month by taking into account the lost chance of the deceased working at a construction site and thereby possibly earning more than as a cleaner. 134.Therefore I propose to use $10,000 as the basis for calculating the loss of dependencies. 135.There is some evidence that the deceased who arrived in Hong Kong (on a permanent basis) just shortly before her death from the accident, had every intention to apply for immigration visas for both her husband and her new born son to come to Hong Kong permanently to join her. It was anticipated that would have taken about seven years to achieve, during which time she would be earning money in Hong Kong to support both of them in China since her husband would have to be almost full time looking after the baby in China. 136.There is also evidence from the plaintiff which I accept that from her earnings each month, she would support her husband and son in China by sending them $3,500; support her parents to the extent of giving them $1,000; pay them $500 for her food and lodging and spend about $1,000 for her other use. (a) Pre-trial loss of dependencies 137.In so far as the husband of the deceased is concerned, it was agreed by the defendant in their Answer to the Revised Statement of Damages that the husband will likely be able to join the deceased in Hong Kong some seven years after the deceased arrival in Hong Kong, the implication being that the husband of the deceased will be a dependent of the deceased for such time as he remained in China before joining her in Hong Kong on a permanent basis. 138.Should that be the case, even after he succeeded in coming to Hong Kong to stay, it would likely take some time for him to adjust and to find work in Hong Kong before his dependency on the deceased will end. 139.The pre-trial period from the death of the deceased is now nine years. Given the above, it is not unreasonable to expect the husband’s dependency to have continued for the whole of that pre-trial period. Therefore the pre-trial loss of dependency of the husband of the deceased can be worked out as : $3,500/2 x 12 x 9 which gives $189,000. 140.Likewise the pre-trial loss of dependency to the deceased son will also be the same figure of $189,000 worked out in the same way as the husband’s. 141.The pre-trial loss of dependencies to the parents of the deceased on the assumption that for the entirety of the pre-trial period of nine years, the deceased would have continued to give them $1,000 per month : $1,000 x 12 x 9 giving $108,000, thus $54,000 to each the mother and the father respectively of the deceased. 142.Total pre-trial dependencies therefore comes to $486,000. (b) Post trial dependencies 143.Given that the dependency of the husband of the deceased on the deceased will cease and not continue upon his arrival in Hong Kong and having adjusted to life here and likely finding work, there will be no post trial dependency for the husband after the pre-trial period and none will be assessed for the husband. 144.As for the son of the deceased who was two months old at the time of death of the deceased, he will be nine years old after the pre-trial period by which time he too would likely have joined his mother in Hong Kong had she not died in that accident. 145.The likely scenario for the son would be that he would continue his schooling in Hong Kong after arriving here. It would also be likely that the deceased would have continued to support him, possibly together with her husband if he could find work, until he would have finished his education and become independent financially. 146.There is evidence before me that the deceased, before her death, had high hopes for her son to be educated to the highest possible level that he could achieve. In current day Hong Kong, it is not difficult to reach tertiary level of education. Very often that means a young person will not finish his education until around age 24 or 25, sometimes even beyond. 147.Giving effect to that, I would take a multiplier of 8 to calculate the post trial dependency of the son. 148.As for the multiplicand, when the deceased could have been joined by her husband in Hong Kong, and the husband finds work here, he will no longer be dependent on the deceased. That would suggest that the deceased would be able to use more of her earnings on her son. Moreover, there would be also a necessity to increase the amount of the dependency for her son not only because he has come to Hong Kong where the financial support will have to be greater than if the son was in China, but also as he progress as a student, he would likely need greater financial support. 149.I would therefore use a multiplicand of $2,500 to calculate the son’s post trial dependency. This would give : $2,500 x 12 x 8 giving $240,000. 150.For the parents, they would both be 60 years old after the pre-trial period. 151.Traditional Chinese thinking would likely lead the deceased to continue to support her parents even if the support was nominal. Therefore with her family to take care of, likely the deceased would continue giving $1,000 to both her father and mother as a token support for them. However it is also likely that such support, though token, would continue right through their old age. I would therefore adopt a multiplier of 7 for the parents of the deceased to calculate their post trial dependencies. This would come to : $1,000 x 12 x 7 giving $84,000 to both of them, thus $42,000 to each parent. 152.Total post trial dependency therefore comes to $324,000. Loss of Accumulation of Wealth 153.In the case of Lam Pak Chiu v. Tsang Mei Ying [2001] 4 HKCFAR 34 loss of accumulation of wealth was explained by the Court of Final Appeal to mean “the amount which a deceased would have saved during his working life, not spent during his retirement and died possessed of”. Moreover, in that case, the Court of Final Appeal, recognizing the difficulty of finding a multiplicand (if the multiplier/multiplicand method was to be adopted), suggested that those calculating such an award would be well advised to make global awards, but that there must be an underlying process of ratiocination. 154.Loss of accumulation of wealth in the case of the deceased here was calculated and submitted by counsel for the plaintiff on the basis of pre-trial loss of accumulation of wealth and pos trial loss of accumulation of wealth. That calculation was made almost as though it was an assessment of loss of earnings, both pre-trial and post trial. In that respect, loss of accumulation of wealth was claimed at $573,000 (alternatively $165,060) up to 2004 and a further sum of $1,405,404 (alternatively $648,450) from 2004 onwards. The alternative claim there was based upon the deceased working as a cleaner as opposed to a construction site worker. 155.Given the explanation by the Court of Final Appeal in Lam Pak Chiu’s case as to what is meant by “loss of accumulation of wealth”, that approach by counsel for the plaintiff is wholly misconceived. There simply cannot be pre-trial loss of accumulation of wealth and post trial accumulation of wealth. 156.Under this head of claim, what I have to do is to assess what amount, if any, which this deceased would have saved during her working life, not spent during her retirement and died possessed of had it not been for this accident and untimely death to her. 157.This task is made all the more difficult by the fact that the deceased was only 22 at the time of her death, and had shortly before her death given birth to her first born. There was every intention by her and her husband for the husband and the son to join her in Hong Kong when she could successfully apply for them to come to Hong Kong on a permanent basis. 158.A large part of her life was therefore still ahead of her to be lived in the way that she had planned it and whether those plans would materialize still remained to be seen. 159.Again in her work life in Hong Kong, she had started on the job of a cleaner at the Man Foong Industrial Building only three days before the fatal accident and there is evidence before me that this job of a cleaner was only a temporary job as far as the deceased was concerned. That she had every intention to go to work at a construction site and was waiting for a relative to introduce her or secure for her work at a construction site where the wages would be higher than as a cleaner. 160.All these circumstances relating to the deceased before her death makes it difficult if not impossible to have to calculate what she would have saved at the end of her natural life had it not been for the accident. However, difficult though the task may be, I will still have to do the best that I can given the circumstances. 161.There is evidence before me that before coming to Hong Kong, the deceased had worked for some five years in China and had succeeded in building a village house in a village in China which was valued at some RMB30,000 the valuation being contained in a certificate from the Village Committee. There is also evidence from her family members that the deceased had amassed jewellery worth about $20,000 in China and also evidence that she had saved some RMB7,000 in a bank in China. 162.This evidence has been hotly disputed by the defendant in cross examination, albeit they have no direct evidence to challenge it, which would not be surprising since it was not something they would have been privy to. 163.Having heard all the evidence and cross examination, I accept that the deceased and her husband did have a village house in China valued approximately as per the certificate and that she did have RMB7,000 in the bank in China. However, I have some reservations as to the value of the jewellery kept by the deceased. 164.From all the evidence before me, I find that the deceased is a hard working and frugal person, one who would not shirk from hard work for the good and betterment of her family and her son. All her plans in her life aimed for that one goal. 165.On the assumption that at some stage, her husband and son will be able to come to Hong Kong to stay and re-unite with the deceased, the husband will likely find work in Hong Kong and thereby become the dominant provider for the family. Even so, I have little hesitation in coming to the conclusion that the deceased will likely continue in her work earning for the good of the family as a whole. 166.While there is some background as to her savings pattern and ability in China before she came to Hong Kong, I bear in mind that was at a time before her son was born. The ability to save with the addition of extra member or members to the family must necessarily change. I must also keep in mind that had the deceased not died, there may possibly be other children after the first born. 167.For assessment of loss of accumulation of wealth, I can conveniently split the chronology into three phases; firstly the first seven years or so when the husband and son remains in China, this will probably be the time when the deceased will not be able to save much from her earnings since she will be the main support earning in Hong Kong to support her family in China. Secondly, after she is joined by the husband and son in Hong Kong and when the husband finds work in Hong Kong, the deceased will then be able to save more with the husband either assisting and contributing or being the main provider. Thirdly, when the son becomes independent, the deceased will then be able to save up much more from her earnings. 168.When her son reaches 24 or 25, i.e. when the son can become independent, the deceased will only be 46 or 47 years old. She will then still have quite a few years to continue working, earning and saving for her old age. 169.Given all these circumstances, in coming to assess the loss of accumulation of wealth on a global lump sum basis, I am of the view that it would not be unreasonable to think that an assessment of $500,000 as being the loss of accumulation of wealth to be wrong. Interests 170.Interests for the award of bereavement will be awarded at 2% from date of the Writ. 171.Interests on Funeral expenses and Special damages and pre-trial loss of dependencies will be awarded at half judgment rate from the accident up to end of 1998 (when the ECC compensation was paid to the plaintiff in respect of the death of the deceased). Summary of Quantum
172.From this sub-total amount will need to be deducted the amount of $555,000 already received by the plaintiff by way of ECC compensation. 173.The final figure comes to $980,755. Conclusion 174.There will therefore be judgment to the plaintiff in the amount of $980,755 against the defendant. Costs 175.Admittedly, judgment given in this case falls just below the District Court jurisdiction after its jurisdiction was increased to $1,000,000 in December 2003. 176.However, I take account of the fact that when this case was started in the High Court in year 2000 the jurisdiction of the District Court was only then $600,000. I also take into account the fact that the final judgment sum (after deducting ECC compensation) was so close to the jurisdiction level of the District Court after its jurisdiction was increased, that it must have been reasonable for the plaintiff to have continued the case in the High Court and not have it transferred to the District Court. 177.For these reasons, there will be a costs order nisi that the defendant pays the plaintiff the costs of the plaintiff’s claim at the High Court scale, to be taxed if not agreed. Payment into Court of judgment sum 178.In view of the fact that infant’s interests is involved in this case, namely the son of the deceased who is a minor, the judgment amount assessed is to be paid into court by the defendant pending application for orders as to payment out by the plaintiff.
Mrs Dora K.H. Chan, instructed by Messrs Jesse H.Y. Kwok & Co., for the Plaintiff Miss Christina Lee, instructed by Messrs Tsang, Chan & Wong, for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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