Cheng Wai Li v. Far East Aluminium Works Co Ltd and Others
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CACV 115/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 115 OF 2008 (ON APPEAL FROM DCPI NO. 441 OF 2006) -------------------- BETWEEN
-------------------- Before: Hon Tang VP, Yuen JA and Lam J in Court Date of Hearing: 20 November 2008 Date of Judgment: 12 December 2008 ------------------------ J U D G M E N T ---------------------- Hon Tang VP (giving the judgment of the Court): Introduction 1.On 29 June 2004, the plaintiff was injured as he was climbing up the cat ladder to the roof of the kiosk at gridline D5 on Level 4 of Langham Place (“the site”), when the trapdoor of the hatch suddenly closed and hit him on the head. 2.On one side of the roof there were smoke vent windows. There were 4 rows each of 4 marble slabs on the windowsill of the smoke vent windows. Each marble slab weighed around 80 lb. The smoke vent windows opened at an angle of about 45°. 3.The smoke vent windows were part of a smoke control system for the grand atrium at L4 of the retail tower. When the fire alarm system was actuated, the smoke vent windows would open automatically for ventilation. The smoke vent windows could also be opened manually solely by the smoke vent manual switch. It would take the smoke vent windows 48 seconds to open properly. 4.At the time of the accident, for reasons unknown, the smoke vent windows opened, as a result the marble slabs which had been resting against the smoke vent windows fell off the windowsill and some of them fell on the trapdoor closing it. 5.The marble slabs were meant to be on the windowsill temporarily but before they were removed, the accident occurred. 6.The 1st defendant was the subcontractor who was responsible for the installation of curtain walls including smoke vent windows. The plaintiff was the 1st defendant’s site supervisor whose job was to arrange and supervise the installation work on the site. 7.The 2nd defendant was the main contractor responsible for the construction of the two buildings, namely, the Office Tower and the Retail Tower on the site. 8.The 3rd defendant was the sub-subcontractor of the 2nd defendant and was responsible for the marble work on the site. 9.The learned judge held that the 1st defendant was liable to the plaintiff because, for example, it had failed to provide the plaintiff with a safe working environment. He also held that the 2nd defendant was liable to the plaintiff in negligence because it had, for example, failed to put warning signs on the smoke vent windows to warn people against putting objects against them or on the windowsill, and that such negligence resulted in the plaintiff’s injuries. As for the 3rd defendant, he was held by the learned judge to be negligent and liable to the plaintiff because the 3rd defendant’s employees had put the marble slabs against the smoke vent windows and on the windowsill. 10.The learned judge held that all three defendants were jointly and severally liable for the plaintiff’s injury. He awarded damages in the total sum of $631,020 from which he deducted the amount of $335,169.80, being the employee compensation already paid by the 1st defendant to the plaintiff. 11.Notice of contribution or indemnity had been issued by the 1st defendant against the 2nd and 3rd defendants respectively under the Civil Liability (Contribution) Ordinance, Cap. 377 (“CLCO”):
12.However, the learned judge held in para. 28 that because the defendants were severally as well as jointly liable no question of contribution can arise. The learned judge said:
The appeal 13.This is the 1st defendant’s appeal against the learned judge’s refusal to order contribution. 14.Having regard to the amount involved, the parties agreed that should we be of the view that the learned judge was wrong in relation to the question of contribution, we should apportion liability ourselves instead of remitting the matter to the learned judge. 15.With respect to the learned judge, we are of the view that precisely because the defendants were jointly and severally liable for the plaintiff’s injury, the learned judge should have gone on to consider the question of contribution. Section 3(1) of CLCO provides
16.A short citation from Winfield and Jolowicz on Tort, (17th ed), 2006 at p. 921 illustrates the point:
17.Mr Wong appearing for the 1st defendant suggested equal apportionment of responsibility. Mr Lee appearing for the 2nd defendant agreed that an apportionment of one-third to each of the defendants would be reasonable. The 3rd defendant, who appeared in person, submitted that he should not be held liable for more than 20% of the loss. He submitted so because according to him, he was just a subcontractor for the installation of the marble slabs and that the marble slabs did not belong to him. But he accepted that it was his own workers who had left the marble slabs on the windowsill. In such circumstances, we believe an equal apportionment to be appropriate. 18.A major issue between the 1st and 2nd defendants is whether the amount in relation to which contribution could be sought should be confined to the net amount of $295,850.20 after deduction of the employees compensation of $335,169.80, or whether the 1st defendant is entitled to contribution in respect of a total sum of $631,020. 19.As we understand Mr Lee’s submission, he seemed to have submitted that because the 1st defendant was liable to pay and had paid compensation to the plaintiff under the Employees’ Compensation Ordinance (“ECO”), Cap. 282 and that under section 25(1)(b) of the ECO, the employer would only be entitled to an indemnity if he was faultless, but as the 1st defendant was not faultless, the 1st defendant was not entitled to an indemnity in respect of the compensation paid under the ECO – even though the 1st defendant has not made any claim under that Ordinance. Mr Lee, however, seemed to have accepted that the 1st defendant would be entitled to contribution under section 3(2) of CLCO. So he submitted the contributions should be limited to the difference between the common law damages and the ECO compensation. 20.Mr Lee relied on Yardway Motors Ltd and Tam Siu Lun [2005] 2 HKLRD 118 in particular on what Yuen JA said at para. 60:
21.As the judgment at first instance in Yardway shows, the plaintiffs who were the employer of the deceased mechanic had paid compensation under ECO of $1,230,494 to the dependants of the deceased. The plaintiff’s claim for contribution was brought under both section 25 of ECO and the CLCO. The amount claimed was in respect of the total sum paid under the ECO which presumably was taken to be:
22.The deceased died when he was hit by the front of the defendant’s lorry, which lurched forward when the defendant turned on the ignition as it was in gear. 23.The learned trial judge held that:
but that the learned trial judge also held that:
24.The learned trial judge held that the plaintiffs were entitled to contribution both under section 25 of ECO and the CLCO, and ordered the defendant to pay 7/8ths of the damages. 25.The defendant appealed. In this court the majority view was that the plaintiffs were not entitled to contribution under section 25 of ECO, since the plaintiffs were partly responsible for the accident. Per Le Pichon JA at para. 41 and Yuen JA at para. 60. 26.More importantly for our purpose is that this court was unanimous in Yardway in affirming the learned trial judge’s conclusion that the plaintiff were entitled to a 7/8th contribution from the defendant under CLCO in respect of the entirety of the plaintiffs’ claim against the defendant which, it will be recalled, was the employee compensation paid by the plaintiffs to the deceased’s dependants. 27.Nor would Rogers VP’s judgment support Mr Lee. Rogers VP held the minority view that an employer who was partly responsible for the accident was entitled to contribution from the third party under section 25(1)(b). 28.Mr Lee also relied on the judgment of Deputy Judge McMahon (as he then was) in Wong Yat Chiu and Anor v Chan Kwok Wa and Others [1999] 2 HKLRD 849. There the learned deputy judge was of the view that only a faultless employer is entitled to an indemnity under section 25 of ECO from a tortfeasor. It is clear from Deputy Judge McMahon’s citation from the judgment of Barwick CJ in the High Court of Australia in Public Transport Commissioner of New South Wales v. J. Murray-More (NSW) Pty Ltd. [1975] 132 CLR 336, that the Australian equivalent of section 25 of ECO would not preclude the employer who was partly at fault from claiming contribution under the equivalent of CLCO (p. 870). 29.For the above reasons, we are of the view that the 1st defendant is entitled to contribution from the 2nd and 3rd defendants in respect of the full amount awarded by the learned judge without any deduction. The deduction ordered by the learned judge was made against the plaintiff only so that the plaintiff should not be over compensated and has no relevance to the 1st defendant’s right of contribution. 30.Accordingly, assuming the 1st defendant has paid the plaintiff the full amount of $631,020, we order the 2nd and 3rd defendants to each contribute one-third of the amount paid by the 1st defendant to the plaintiff, inclusive of the payment made under the ECO. The 2nd and 3rd defendants must also pay the costs of the 1st defendant in the appeal, such costs to be taxed unless agreed. As for the costs below, the 1st defendant is entitled to costs from the 2nd defendant in relation to its claim for contribution against it, such costs are to be taxed unless agreed.
Mr Wong Chi Kwong, instructed by Messrs Deacons, for the 1st Defendant. Mr Lee Pak Chau, instructed by Messrs Reimer & Partners, for the 2nd Defendant. The 3rd Defendant, in person, present. |
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