Ng Tim Yip Kevin v. Chan Ho Kin

CACV 285/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 285 OF 2007

(ON APPEAL FROM HCPI NO. 948 OF 2005)

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BETWEEN

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Before: Hon Tang VP, Yuen JA and Chung J in Court

Date of Hearing: 9 October 2008

Date of Judgment: 23 October 2008

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JUDGMENT

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Hon Tang VP:

Introduction

1.The plaintiff was born on 4 March 1986.  He suffered injuries as the result of an accident at work on 28 May 2003 when he was just over 17 years old.  He was at the time engaged in cutting and dismantling drainage pipes in the car parking area on Level B Lower Ground of Elite Industrial Centre in Cheung Sha Wan, Kowloon (“the Site”).

2.The plaintiff started working for the defendant in about September 2002.  The defendant was the sole proprietor of Kenny’s Engineering Company (formerly known as Kenny’s Company).  In about mid-September 2002, the plaintiff saw the defendant’s advertisement in the Labour Department for a full-time apprentice plumber and electrician.  He called the defendant and attended a job interview in the defendant’s office on 21 September 2002.  He started work on 23 September 2002.  According to the plaintiff, he was told on the first day of work that he was to work as an apprentice and that the work included plumbing and electrical work and maintenance and repair works including demolishing and installation of pipes.

3.A few days later, he was told by the defendant to sign a one-page employment contract (“the contract”).  The contract was dated 30 October 2002 but took effect from 1 October 2002.  The contract stated that he was to be “the working partner of Kenny’s Company”, as a technician for which he would be paid a service fee of $4,000 and that the time of service was from Monday to Saturday 9.00 am to 6.00 pm.

4.The contract went on to provide:

“When you offer your service to our company, (you) are fully aware that you shall not be entitled to any fringe benefits (including paid holidays, double pay, labour insurance and mandatory provident fund and others). Accordingly, you are under the category of self-employed persons. You are required to resolve the matter relating to contribution to the mandatory provident fund. Whether you intend to make contribution to the mandatory provident fund is completely your own wish and has nothing to do with our company.”

5.It was the defendant’s case at trial that the plaintiff was not his employee, the defendant was a provider of service in accordance with the terms of the contract. 

6.The learned judge found that he had no difficulty accepting the plaintiff’s evidence that he was the employee of the defendant.  The learned judge said:

“53.   In this respect I found the plaintiff to be a straightforward and truthful witness, at times even somewhat naive, but nevertheless truthful and reliable in his evidence.”

He found the defendant to be:

“54.   … wholly unimpressive …”

and

“55.   … Because of this evidence of the defendant which did not conform to the wording of the contract, the defendant had to cover up that lie with another lie …”

In para. 65 of the judgment, the learned judge said:

“65.   I find as a fact the plaintiff was employed by the defendant and was an apprentice of the defendant.  Such apprenticeship would have been for a two-year period in the normal run of things from the time the plaintiff started with the defendant in September 2002.”

7.There is no appeal from this finding by the defendant.  In any event, on the evidence, we have no doubt that the learned judge’s decision on this point is correct.

8.No employee compensation insurance was obtained by the defendant.  However, the defendant had obtained an insurance policy for the benefit of the plaintiff, the application for which had been countersigned by his mother.  It is of interest to note that in the proposal form, the name of the employer was given as “Kenny’s Company”.  The defendant claimed that he had obtained such insurance for the benefit of the plaintiff as a friend.

The accident

9.On the day of the accident, the plaintiff had been instructed by the defendant to go to the Site to cut and remove certain water pipes.  The water pipes ran both horizontally across the wall below the ceiling as well as vertically from the floor.  In order to remove the water pipe, the plaintiff had to use a cutting machine fitted with an exposed circular cutting blade.  The circular cutting blade was replaceable and cost $4.  The plaintiff’s case which was not disputed was that he started work at about 1 pm.  According to the defendant, he had instructed the plaintiff to cut the water pipes in pieces of about 2 to 3 feet in length for easy handling and for safety, and that the plaintiff was provided with a cutting machine with a circular cutting blade.  The plaintiff was accompanied by another apprentice, Ah Cheong.  It was Ah Cheong’s first day at work. 

10.This is the learned judge’s summary of the plaintiff’s evidence:

“25.   [The plaintiff] knew that for cutting galvanized pipes, he was given instructions to cut them into pieces of about 2 to 3 feet in length for easy handling since the pipes were quite heavy.

26.    The last part of the galvanized pipe to be cut was a piece of pipe which was about 8 feet long running horizontally along the wall slightly above the level of his head as he stood on the ground, but which could be reached using the A-shaped ladder.  That piece of horizontal pipe also had two lengths of vertical pipes both of which were attached to the middle section of its underside.  The two vertical pipes ran vertically down to the ground.  Therefore the entire section of that piece of pipe (both the horizontal and vertical pipes) appeared to be a capital letter ‘T’ but with two downward strokes instead of one (which I will refer to as ‘the double T section of the pipe’).

27.    That section of the pipe was sketched out by the plaintiff which sketch was exhibited as Exhibit P-1.

28.    When they came to the double T section of the pipe to be cut, the plaintiff found that the circular cutting blade had already been badly worn out and damaged.  As there was no spare circular cutting blade, he tried to phone the defendant to seek his instructions as to what should be done but could not reach the defendant by phone.  The plaintiff also called Ah Tung (who was on another floor of the same building) trying to seek his assistance since Ah Tung was a more experienced apprentice than the plaintiff, but Ah Tung told the plaintiff that he had other work to do and could not help.

29.    As a final resort, the plaintiff then decided with Ah Cheong to cut the double T section of the pipe as a whole, without cutting it into smaller sections, since the worn out cutting blade would not have been able to cope with so much cutting, and for the two of them to lower that double T section of the pipe as one entire piece onto the ground (after it had been cut) from the wall.

30.    After cutting the double T section of the pipe in the way they decided, when the two of them were lowering it from the wall to the ground, the plaintiff estimated that the double T section of the pipe to be over 100 lbs.

31.    The plaintiff and Ah Cheong each took hold of one end of the horizontal part of the double T section of the pipe at the top to try to lower the entire piece of pipe onto the ground.

32.    As they were doing so, and due to the weight of the pipe as a whole, Ah Cheong suddenly let go of his end of the pipe causing the entire piece of the double T section of the pipe to fall to the ground.  The plaintiff was unable to draw back his hand in time and the pipe fell onto and crushed the plaintiff’s right hand.”

11.It was not disputed that the plaintiff had tried to contact the defendant.  Unbeknown to the plaintiff the defendant was in another part of the same building, but because the plaintiff was in the car park the transmission was poor.  There was another worker from the defendant working in the same building, Ah Tung.  Ah Tung is an experienced worker who had his own work to do in a different part of the building.  This is what the plaintiff said under cross-examination by the defendant in response to the question:

“Did you speak to Ah Tung? …

……

A.      Yes. I did tell him that there was insufficient manpower.  Ah Tung only said that he had to do his own work and that he could not help me. So I just ask him to try his best to find Mr Chan (the defendant) for me.”  Transcript at page 29T.

12.The learned judge went on to deal with the defendant’s case:

“69.   The defendant denies that the cutting blade was worn out.  In this respect, the defendant says that there was a storeroom nearby where there should have been spare blades, but even if there were no spare blades in the storeroom, it was easy enough for the plaintiff to run out of the Elite Industrial Centre to any hardware store nearby and such a cutting blade could have been bought for several dollars.

70.    After the plaintiff had sketched Exhibit P1 and was asked to indicate on that sketch which part of the double T section of the pipe he had cut before attempting to lower that double T section of the pipe to the ground manually between the two of them, the plaintiff indicated on that sketch (Exhibit P1) that he had cut the two outstretched arms of the horizontal part of the pipe as well as the very bottom part of the two vertical pipes.  According to the plaintiff that was done with the worn out cutting blade.

71.    When further asked why he did not cut the top part of the two vertical pipes where they joined with the horizontal part of the pipe, instead of cutting the bottom of part of the vertical pipes (which would have the effect of separating the horizontal pipe from the two vertical pipes thereby lessening the weight of the dismantled pipes), the only answer that the plaintiff could give was that he did not think of that at the time.  That answer I found to be wholly unsatisfactory.

72.    There was no evidence from the plaintiff that the plaintiff had attempted to seek a spare cutting blade from the storeroom allocated to the defendant in the vicinity of the Site.

73.    There was also no evidence from the plaintiff that either he or Ah Cheong had tried to obtain a replacement cutting blade from a nearby hardware store (bearing in mind that the Elite Industrial Centre being in Cheung Sha Wan Road, it should not have been difficult to seek out such a hardware store nearby in that area of Kowloon).

74.    The plaintiff’s evidence was that it became obvious to the plaintiff that the cutting blade was worn out even before he attempted to cut the double T section of the pipe.  In such circumstances, it would have been reasonable for either the plaintiff or Ah Cheong to have either looked for a spare cutting blade from the storeroom nearby or go out of the building to buy a replacement blade while the other of them was cutting the double T section of the pipe.

75.    There being no such evidence, I do not accept the plaintiff’s evidence that the cutting blade which he was supplied with by the defendant was so worn out that he could not have used it to further cut down the double T section of the pipe into smaller pieces or sections which would have been less heavy than the entire double T section of the pipe, and therefore easier for the two of them to handle when taking it down to the ground.

76.    I further find that there was no good reason for the plaintiff to have disregarded the instructions given to him by the defendant to cut the water pipe into smaller sections before lowering such sections of pipes onto the ground.

77.    In so doing, the plaintiff and Ah Cheong was likely trying to take a short cut for their own convenience and to minimize or lessen the work they had to do.”

13.On the basis of such finding, the learned judge found that the plaintiff was wholly to blame for the accident and dismissed the plaintiff’s claim.  It appears that the learned judge’s decision depended to a large extent on his finding that the cutting blade was not worn out.

14.In para. 69, the learned judge said:

“69.   The defendant denies that the cutting blade was worn out. …”

15.With respect to the learned judge, it does not appear that the defendant had denied that the cutting blade was worn out.  The defendant had made and produced a witness statement for the purpose of the trial.  In that statement, he had not denied that the cutting blade was worn out.  At the time that statement was produced (17 October 2006), he was represented by Messrs Raymond Chan, Kenneth Yuen & Co., solicitors.  It is to be noted that in the plaintiff’s witness statement of 30 June 2006, in para. 13, the plaintiff had clearly stated that the cutting blade was worn out, that there was no replacement available and he was unable to contact the defendant.  So, if the defendant had wished to say that the cutting blade had not worn out, one would have expected him to say so in his own witness statement.

16.In fact there was an earlier statement dated 31 October 2005, prepared in response to the Employee Compensation claim DCEC 809/2004 brought by the plaintiff.  At that time, the defendant was represented by Messrs Lam, Lee & Lai, solicitors.  In that statement, there was also no denial that the cutting blade was worn out.  Again, in DCEC 809/2004, in the plaintiff’s earlier statement of 31 October 2005, he had also made it clear (in para. 13) that the cutting blade was worn out and that there was no replacement. 

17.Nor had the defendant said otherwise in his oral evidence.  The defendant was unrepresented at trial and on appeal. However, it is clear from the transcript and his submission before us that, he is an alert, intelligent and articulate person.  Under cross-examination, he had apparently said that the cutting machine was working properly when the plaintiff began work.  The plaintiff’s evidence was that starting from 1 pm the plaintiff had used the cutting blade to cut through thick galvanized water pipes and then the cutting blade wore out.  But I cannot find any denial by the defendant that the cutting blade might have subsequently become worn out. 

18.In para. 75, the learned judge said he did not accept that the cutting blade had become:

“… so worn out that he could not have used it to further cut down …”

The learned judge did so for the reasons given by him in paras. 72 to 74 of the judgment quoted in para. 12 above.  With respect, it does not follow, because there was no evidence that the plaintiff had tried to obtain or buy a replacement cutting blade, that the cutting blade had not worn out.  Moreover, the learned judge had ignored the evidence that the plaintiff had tried to contact the defendant. One might ask why would the plaintiff try to contact the plaintiff for half an hour if the cutting blade was working properly.  Furthermore, in reaching his conclusion, the learned judge must have been influenced by his earlier erroneous belief that the defendant had denied that the cutting blade was worn out.  It had not been put to the plaintiff by the defendant or by the learned judge that the cutting blade had not worn out.  Having regard to the fact that the cutting blade only cost $4, it is not surprising that it might wear out on use.  On the evidence before him, the only reasonable conclusion was that the cutting blade was worn out. 

19.Since the learned judge’s finding of no liability was made on the basis (erroneous in my view) that the cutting blade had not worn out, his conclusion that the defendant was not liable cannot stand.

20.Furthermore, with respect, the learned judge has failed to have any or any proper regard to the duty of care which an employer owes to his employee, especially an apprentice employee.

21.There is a convenient statement of such duty in para. 145.052 of Halsbury’s Laws of Hong Kong, Volume 10(2), 2005 reissue:

“At common law, an employer is under a duty to take reasonable care for the safety of employees in all the circumstances of the case so as not to expose them to an unnecessary risk … The duty may vary with the employee’s particular circumstances which are known, or ought reasonably to be known, to the employer.

An employer’s duty to take reasonable care to carry on operations so as not to subject employees to unnecessary risks is a single and continuing duty, applicable in all the circumstances.  For convenience, in applying the principle in particular cases, however, the employer’s obligation has long been recognised as threefold in character, that is to say, to provide (1) a competent staff of employees; (2) adequate material; and (3) a proper system and effective supervision.  In addition, it is the employer’s duty to take reasonable care to provide and maintain a reasonably safe place of work for employees and reasonably safe access to it.” 

22.The duties most relevant to the present case are the duties to provide competent fellow employees, supervision and proper equipment.  The extent of the responsibility of the employer will depend on all the circumstances, including the skill and experience of the employee. Here we are concerned with an apprentice who was just over 17 years old.  As was pointed out in Munkman on Employer’s Liability 14^th Ed:

“2.78     … an employer should take account of individual weaknesses of its employees of which it knows or ought to know …  More care is owed to an employee who is inexperienced than one who is fully experienced.”

23.Here, the plaintiff, an apprentice, had the help of another apprentice.  They had been working on the site from about 1.00 pm in the afternoon and the accident happened at about 4.00 pm.  They were engaged in the cutting and removal of heavy water pipes with cutting machines with an exposed (according to the plaintiff and not disputed) cutting blade.  There was no supervision by the defendant or at all.  That the work was potentially dangerous could be seen from the plaintiff’s injuries, which included amputation of his right thumb, and part of his index finger. 

24.The evidence of the plaintiff was quite clear. He had not worked on overhead cutting of pipes before.  There was no supervision.  Although there was another experienced worker Ah Tung in the employ of the defendant at the Site, that employee was engaged in his own work.  Ah Cheong who was there to help the plaintiff was new to the job.  The plaintiff had tried to contact the defendant by telephone for about half an hour without success.  The plaintiff then decided that the only option available was to bring down the water pipe manually.  He said at page 31I:

“Basically if [the defendant] were there I would have known what to do. As you were not there I was not able to make the decision myself. Even if I had made a decision, the decision I’d made would not be the correct one. I did not know what to do.”

25.As for whether or not there was a spare cutting blade available on site or that he could have bought a new blade, the defendant said under cross-examination at transcript 52R:

“… If there was any damage to the cutting blade he knew where to buy it. It only cost him $4.  I think it would not be noble (sic) for him to say that he found the cutting blade not in working order, and yet he went on to use the cutting machine.”

26.I am conscious that I am disagreeing with the learned judge who has substantial experience in this type of cases.  I am also conscious that we cannot overturn the learned judge’s decision unless we are satisfied that he was plainly wrong.

27.The defendant had advertised for an apprentice.  The plaintiff became his apprentice.  He was given little training.  The defendant’s attitude could be gathered from his evidence, he said since the defendant had attended a technical school:

“… He knew what the procedures were.  Well, he was not an innocent young person who knew nothing.  He had learned about it at school.”  Transcript 52D.

Earlier, as part of his evidence in chief he said at T39R:

“Well, earlier Mr Ng said he had no idea about safety. He had no knowledge about safety. But the school that he attended would provide him with sufficient training. And he had got very high marks for his knowledge.”

Indeed, it is clear from the contract that the defendant never regarded the plaintiff as an apprentice.  The relevance of that is that it is clear that he never treated the plaintiff with the degree of care which one would expect a master to treat his apprentice.

28.The defendant said he told the plaintiff to cut the pipes into lengths of about 2 to 3 feet for easy handling.  But there was no evidence that the plaintiff was told that trying to move longer lengths of pipes manually could be dangerous.  I do not believe it was sufficient for the defendant to simply tell the plaintiff what to do.  He should have also told the plaintiff what he should not do and why not.  To tell an apprentice simply what to do is insufficient, especially when the apprentice is left unsupervised, because the apprentice might think that there is an easier way of doing it.  Nor is it sufficient to tell him to do something in a particular way and not to do it in some other way, because young apprentices may be prone in their youthful exuberance to think that the other way is better without being conscious of the risk involved.  That is why I believe if a master wishes to tell his apprentice not to work in a particular way because it is dangerous, he should explain to the apprentice where or how it is dangerous.

Contributory Negligence

29.I turn to the question of contributory negligence. 

30.Since the learned judge decided liability against the plaintiff, there was no finding of contributory negligence by the learned judge. 

31.On the facts of this case, I do not believe any contributory negligence should be found against the plaintiff.  The burden of proof of contributory negligence is on the defendant.  I do not believe it is fair in the case of an apprentice who was left to do a job for which he had not received any proper training, no supervision, insufficient support or proper equipment that the apprentice should be found guilty of any contributory negligence.

32.I would hold that the defendant is liable in full to the plaintiff.

Damages

33.The damages awarded by the learned judge were:

34.The learned judge had deducted the payment of $145,500 received by the plaintiff from the insurance company being compensation for this accident.  He allowed the deduction on the basis that the premium for the insurance policies was paid by the defendant.

35.I would enter judgment in favour of the plaintiff in the sum of $1,947,595.  Interest at half judgment rate will be awarded on special damages from the date of the accident (28 May 2003) to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for general damages from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Conclusion

36.The appeal is allowed.  The defendant is adjudged liable to pay to the plaintiff the sum of $1,947,595 with interest as aforesaid.  The plaintiff is to have the costs here and below.

Hon Yuen JA:

37.I agree that this appeal should be allowed.  It is an act of negligence by an employer to provide an employee with an inadequate tool.  A cutter with a blunted blade is obviously an inadequate tool.  The Plaintiff was thus left to perform his work with a tool that was no longer fit for the purpose.  As the tool became of limited use, he was forced to reduce its use by cutting the pipes into larger sections instead of smaller ones, and he injured himself  when dismantling the larger sections.  That is a clear case of injury suffered as a result of an employer’s negligence in failing to provide adequate tools, and I have no doubt that the learned judge would have found the Defendant negligent had he not erred in rejecting the Plaintiff’s evidence that the blade had become blunted.  

38.With respect to the learned judge, he rejected the Plaintiff’s evidence that the blade had become blunted on the ground that there was no evidence that he had attempted to obtain a replacement blade either on-site or off-site (paras. 72-75).  However it was never put to the Plaintiff that he could have done so.   Although the possibility of obtaining a replacement blade was referred to in the Defendant’s witness statements, it was not necessary for the Plaintiff to pre-empt the point in his evidence-in-chief.  He was entitled to see if (and how) the Defendant put the point to him.  As events transpired the Plaintiff was not cross-examined at all on the point, and as such he could not have dealt with it in re-examination either.  And yet it was assumed against the Plaintiff in the judgment that:

(1)     he had a key to the store-room and that there was a replacement blade there, or

(2)     he knew that a replacement blade could have been bought in the vicinity and how much it would have cost, and

(3)     he knew how to replace it in the cutter. 

With respect to the judge it was unfair to make those assumptions against the Plaintiff when they had not been put to him at all – and more importantly, on the basis of those assumptions to reject his unchallenged evidence on the state of the blade.

39.In respect of the employer’s negligence in providing an inadequate tool, I appreciate that it was not the Plaintiff’s evidence that the blade was already blunt when he started work and it only became worn during the afternoon.  However an employer’s duty to his employees includes a duty to maintain tools in a proper condition.  This is a continuing obligation (Charlesworth and Percy on Negligence 11^th ed §10-44, quoting Wilsons & Clyde Coal Co v English [1938] AC 57, 84).  The Defendant claimed he had checked the tools that morning, but if so he had obviously failed to notice that the blade was nearing the end of its working life.  Alternatively if the blades were prone to become blunted by use for a few hours only, the Defendant should have instructed the Plaintiff what to do when the blade became unfit for the purpose in the course of work.  The Defendant had not done so.  In failing to do so, the Defendant was negligent in not providing a safe system of work.

40.Accordingly it is clear that the Defendant had been negligent in failing to provide or maintain adequate tools and in not providing a safe system of work.

41.As for contributory negligence, the burden is on the Defendant.  In the course of the appeal, the Defendant specifically declined to address the  court on the issue of contributory negligence even though the concept was clearly explained to him.  His position was that the Plaintiff was entirely to blame and that he was not at all to blame.  Accordingly as contributory negligence did not form part of his case, it is not necessary for us to consider it.  In any event as noted earlier, it was not put to the Plaintiff that he could have obtained a replacement blade on-site or off-site and that he knew how to replace it.  And as for the criticism in the judgment that the Plaintiff failed to cut the vertical pipes at a higher level to lessen the weight of the sections to be brought down (para. 71), it must be remembered that the Plaintiff was trying to reduce the use of the blade.  If the Plaintiff had cut the vertical pipes at a higher level, he would have had to cut them again at the lower level before they could be dismantled – and that of course would have required more use of the very tool which had become restricted.

42.For these reasons, I would allow the Plaintiff’s appeal and there being no cross-appeal from the Defendant on the issue of damages, I would make the same order for damages set out in Tang V-P’s judgment. 

Hon Chung J:

43.I agree with the judgments of Hon Tang VP and Hon Yuen JA, and would like to add a few words about an employer’s duty of care towards his employee and contributory negligence.

Duty of Care

44.The law is trite with regard to the employer’s duty of care; it is to take reasonable care of the employee’s safety.  In more detailed terms:-

“… The obligation is threefold … [i.e. ‘the provision of a competent staff of men, adequate material, and a proper system and effective supervision’]” (Charlesworth & Percy on Negligence (2006) 11^th Ed., para. 10-02 quoting Wilsons & Clyde Coal Co. Ltd. v. English [1938] AC 57, 78.  The learned authors added to the above “a safe place of work”).

45.The provision of adequate material, a proper system and effective supervision are the duties engaged on the facts of this appeal.

46.On the former, Charlesworth & Percy says:-

“… the provision of proper plant is ‘especially within the province of the master rather than of his servants’.  The employer’s duty as to appliances has been stated to be one of ‘taking reasonable care to provide proper appliances, and to maintain them in a proper condition’ … ” (para. 10-44).

The duty is also said to be a continuing one.

47.It is unnecessary for an employer to tell an experienced, skilled workman about matters of which he is well aware, or about precautions that ought to be adopted when using plant and appliances.  But he is liable where the employee is young and inexperienced is provided with equipment which is potentially dangerous without instruction as to how to handle it (even if the employee appreciates the risk): Charlesworth & Percy, para. 10-46, text to nn. 73 and 74.

48.On the latter (that is, the duty to supervise, etc.), Charlesworth & Percy says:-

“… the employer owes a duty to give adequate supervision and, where necessary, to give proper instruction.  In many instances, particularly in the cases of the less skilled or of younger employees, it is insufficient merely to supply adequate plant or appliances, then leave them to their own devices, either to try to find out how they work or how to use them properly” (para. 10-43).

49.The facts of this appeal have been helpfully and succinctly set out in the judgment of Hon Tang VP.  On those facts, the defendant was in breach of the above duties:-

(a)      no replacement cutting blade was made available, where it was reasonably foreseeable that the original cutting blade would become worn.  A worn equipment, which made the plaintiff’s work difficult, is likely to cause the plaintiff to adopt an unsafe method (as happened in this instance);

(b)     although instructions were given with regard to how to cut the pipes, there is no evidence the defendant has explained the risks of not following them;

(c)     not only was there a lack of supervision on site, the defendant has failed to put in place a system whereby the plaintiff could obtain advice as to his work.

The plaintiff’s youth and relative lack of experience (which were clearly known to the defendant) are relevant when considering whether there was a breach of the above duties.

Contributory Negligence

50.The law on this aspect is again trite.

51.Charlesworth & Percy says:-

“[Contributory negligence] means that there has been some act or omission on the claimant’s part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence.  For these purposes ‘negligence’ is used in the sense of careless conduct rather than in its sense of breach of duty … It connotes a failure by the claimant to use reasonable care for the safety of either himself or his property …” (emphasis supplied) (para. 3-03).

Hence, by way of example, a pedestrian who crosses the road without due care for his own safety will be contributorily negligence, even though the lack of care results from mere carelessness.

52.But the law on this aspect is different when it is applied to employment cases.  It was summarized in Charlesworth & Percy:-

“The view was taken that ‘some carelessness or inattention to his own safety’ was not contributory negligence and that ‘the jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins …

In effect a different standard of care was imposed than if the court had been considering the employee as someone for whose want of care towards a third party the employer was vicariously liable” (emphasis supplied) (para. 3-65);

“… a distinction has to be drawn between the situation where there has been momentary inattention on the part of an injured employee and the conscious acceptance of a risk by an employee.  If the employee is skilled and the precaution which would have avoided the accident complained of is a simple one, it has been said that the claimant can properly be required to bear the greater responsibility” (emphasis supplied) (para. 11-66).

53.There is no need to labour the point; considering the plaintiff’s young age and relative lack of experience, there was no contributory negligence.

54.Although the plaintiff failed to act according to the instructions given by the defendant (and cut the pipes into a much longer length), the estimated weight of the pipe was not such that it obviously could not be handled by the plaintiff and his co-worker.  They could well have safely dismantled the pipe had the co-worker not suddenly let go of his end of the pipe.

55.On these facts, the accident was more the result of “mere thoughtlessness or inadvertence” than a “conscious acceptance of a risk”.

The Plaintiff, in person, present.

The Defendant, in person, present.