Lai Keung v. Jetwell Engineering Co and Others

CACV179/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 179 OF 2010

(ON APPEAL FROM HCPI 834 OF 2003)

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BETWEEN

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Before : Hon Yuen JA, Chu and A Cheung JJ in Court

Date of Hearing : 18 March 2011

Date of Judgment : 18 March 2011

Date of Reasons for Judgment: 14 April 2011

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REASONS FOR JUDGMENT

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Hon Chu J (giving the Reasons for Judgment of the Court):

1.This is the plaintiff’s appeal against the Judgment of Deputy High Court Judge Carlson given on 30 June 2010 dismissing the plaintiff’s claim against all defendants for damages for personal injury sustained in the course of his employment. At the conclusion of counsel’s submissions, we allowed the appeal. Our reasons appear below.

The facts

2.The plaintiff was, prior to his sustaining the injury, an air-conditioning plant insulation worker.  The accident in question happened on 8 August 2000 and in the course of an air-conditioning fitting work project at Seibu Department Store in Pacific Place.  The 3^rd defendant was the principal contractor of the work.  The1^st defendant was its nominated sub-contractor.  The 1^st defendant, in turn, engaged the 2^nd defendant to carry out the air-conditioning insulation work.  The 4^th defendant was the 1^st defendant’s insurer.  

3.On the day in question, the plaintiff was working on the project.  His task was to wrap insulation material around the air-ducts of a 1.5 metres’ high ventilation unit inside the ventilation room of Seibu.  To carry out the work, the plaintiff was required to climb up a ladder and go on top of the ventilation unit.

4.At about 3:00 p.m. that afternoon, the plaintiff was at work inside the ventilation room together with another worker surnamed Fung. Mr Fung had not been called to testify at the trial.  The undisputed evidence is that Mr Fung, who was working at the floor level, noticed that the plaintiff had fallen onto the floor and was unconscious.  He gave a shout, which caused a number of people to rush into the room.  Among them were Mr. Wong, the sole proprietor of the 1^st defendant, and the 2^nd defendant.  The plaintiff was seen lying unconscious between two air-handling units and was bleeding in the head.  The 2^nd defendant gave him a tap and he came round.  He was then helped to sit up against the ventilation unit.

5.The plaintiff sustained serious head injuries, as a result of which he suffered from post-concussion syndrome and poor memory.  He is therefore unable to recall what happened immediately before the accident and how he came to be injured. 

The claim

6.The plaintiff brought these proceedings against the defendants, claiming damages for negligence, breach of common law duty of care and breach of duty under the Occupiers Liability Ordinance, Cap. 314.  The plaintiff’s pleaded case on the cause of his injuries is that at the material time, he was required to stand on top of the ventilation unit to apply a layer of insulation wrapping over an air-duct and in the course of doing so, he fell from the top of the ventilation unit to the ground and sustained injuries. The defendants disputed the claim both on liability and quantum.  With regard to how the accident happened, they put the plaintiff to strict proof of it.

The trial below

7.At the trial, the 3^rd defendant was absent.  Other than the 1^st defendant, no other witnesses were called by the defendants.        

8.The trial judge found the plaintiff was employed to work on the site by the 2^nd defendant.  He also found the manner in which the insulation work was arranged to be carried out could have given rise to breaches of duty on the part of all defendants.  Hence, had it been proved that the plaintiff fell from the top of the ventilation unit and sustained the injuries, he would hold that a case of negligence and breach of common duty of care would have been made out against the respective defendants and that there was no contributory negligence on the plaintiff’s part.  He further assessed the plaintiff’s loss and damage to amount to HK$2,931,687 excluding interest.

9.The trial judge however dismissed the plaintiff’s claim on the basis that the plaintiff had failed to discharge the burden of proving how the accident happened.  He was of the view that the evidence taken as a whole did not show that the plaintiff fell from the top of the ventilation unit in the course of doing the insulation work.

10.The evidence at the trial on how the accident happened comprise of the evidence of the plaintiff and several statements or documents made by the 1^st to 3^rd defendants.  In his witness statement dated 11 September 2004, which was adopted as the plaintiff’s evidence, the plaintiff stated as follows (at para.15):

“According to the 2^nd defendant, on the date of the subject accident, I was working with another worker called Fung Sai Kwong inside one AHU room of the said air-conditioning construction site. I was responsible for wrapping pipes. Since the pipes extended from the air-handling unit to the ceiling, I had to stand on top of the air-handling unit in order to wrap the pipe. At the material time, Fung Sai Kwong was squatting on the ground doing some other work. Suddenly, he saw me lying prostrate on the ground. He screamed and asked people outside the said AHU room, including the 2^nd defendant, to come and assist.”

11.In his evidence-in-chief, the plaintiff said he knew he was working on air-conditioning unit and applying insulation wrapping, but he could not remember anything that happened immediately before or after his fall. He further agreed in cross-examination that he could not recall how the accident happened.  

12.As to the documentary evidence, there was firstly a statement given on 20 November 2000 by the 2^nd defendant to the loss adjuster of the insurance company. In it, the 2^nd defendant said the following about the accident:

“On 8^th August 2000, at around 3:00p.m., I was working at the entrance of the AHU room on the 1/F of Seibu Department Store at Admiralty. Lai Keung was working with another worker, Fung Sai Kwong in the room. I knew that Fung Sai Kwong was squatting down between the air pipes and headroom, so as to wrap the fibre glass wool while Lai Keung was wrapping the fiber glass wool by standing on the top of the AHU. While outside the room, I heard Fung Sai Kwong shouting suddenly. I immediately went into the room and saw Lai Keung lying unconscious on the ground between 2 AHUs. …”

When asked by the statement taker whether he knew why the plaintiff fell from the AHU, the 2^nd defendant replied:

“No. I asked Fung Sai Kwong about that afterwards, (he said that) he was working and therefore did not know why Lai Keung fell from the AHU.”

13.Also in evidence at the trial was the minute of a meeting on 1 October 2002 at a seafood restaurant attended by the 1^st defendant and his engineer and the 2^nd defendant and one of his employees working on the site.  All four of them had signed to confirm the minute.  In the opening paragraph of the minute, it was stated that the purpose of the meeting was to discuss the accident that happened to the plaintiff and to make a record of it for production to court in future.  The minute recorded as follows:

“Lai Keung was instructed directly by Yun Hoi Yue and was responsible for the thermal insulation of the air pipe in the AHU room. Lai Keung was working on top of the AHU (i.e.) doing thermal insulation work of air pipes.”

14.A third document that was in evidence at the trial is a notice of the accident given to the Commissioner for Labour (Form 2) dated 20 September 2000. It was completed and signed by the manager of the 3^rd defendant.  Under section D “Description of accident”, the 3^rd defendant reported as follows:

“The Accident happened on 08/08/2000 at 3:00p.m., [the plaintiff] was working in the AHU room on the 1/F of Seibu Department Store at Admiralty. When [the plaintiff] was wrapping the air pipe for thermal insulation on the top of the AHU, [he] fell from there and [his] head was injured.”

15.The trial judge’s conclusion on the evidence as to how the accident happened appears at paragraphs 14 to 19 of the Judgment.  After noting that as a result of his injuries, the plaintiff was unable to say why or how the accident had come about, he dealt with the 2^nd defendant’s statement to the loss adjuster and the minute signed by the 1^st and 2^nd defendants as follows (at para.15):

“The only “evidence”, and I have deliberately put this in inverted commas, is the 1st and 2nd Defendants’ statements to the loss adjuster and the minute [B1/293] at the seafood restaurant of the interested parties discussion of the accident. Not one of them was in the ventilation room so there is no way by which I can gauge how they came about their knowledge that the Plaintiff had arrived on top of the unit and was working there when he fell off it.”

16.The trial judge then evaluated the evidence as follows (at para.16):

“I have not heard from anybody that the Plaintiff had made it to the top of the ventilation unit and therefore that he must have fallen off it. This is the minimum requirement that needed to be proved. On the present evidence such a finding by me would have amounted to a victory for assumption and speculation over direct evidence or logical inference drawn from proven primary facts. All I have is evidence, which I accept, that the Plaintiff had been tasked to get on top of the ventilation unit and that sometime after he entered the ventilation room with his co-worker to carry out insulation work on the air-ducts on top of the unit, Mr Fung his co-worker shouted out and that the other witnesses ran in to see what had happened to the unfortunate Plaintiff who was on the ground bleeding and unconscious. Much as I would have liked to have concluded that he fell off the top of the unit, the state of the evidence does not permit me to arrive at that conclusion. For one thing, I was not told how long the Plaintiff had been in the room before Mr Fung had shouted out. Had it been some time then it might have been possible perhaps to draw some comfort from that fact and conclude that he must by then have got to the top of the unit and was working there. There simply is no evidence about how long he was in the room. Secondly, one needs to properly evaluate the assumption that all those outside the room have made that the Plaintiff had been working on top of the unit. At best, this has been arrived at on the basis of what Mr Fung had, I assume, told those who rushed into the room on hearing him shout. Nevertheless, there is nothing from Mr Fung and no explanation why the most important witness has not given evidence nor given a statement to the loss adjuster or to one of the parties’ solicitors. The fact is that the fall and consequent injury could have happened in other ways including as the Plaintiff was climbing the ladder to get to the top of the unit he fell off it and was injured or even that he tripped whilst still on the ground and hit his head.”

17.The trial judge considered that it was not possible to infer from the primary facts that the plaintiff fell from the top of the ventilation unit.  He said (at para.17):

“The failure in the Plaintiff’s case to get beyond an assumption that he fell off the unit is, I very much regret, fatal to the claim. Even if it is to be improved on by elevating it to an inference to be drawn from all the circumstances that he must have fallen from the top of the ventilation unit, I do not believe that it is possible to say that this is the only inference that can be drawn from the very sparse evidence that is available as I have sought to demonstrate. ”

18.The trial judge had made no reference to the Form 2 that the 3^rd defendant filed with the Commissioner for Labour.   

The grounds of appeal

19.Three main grounds are advanced by the plaintiff in this appeal.  First, the plaintiff contends there is sufficient material to satisfy the court on a balance of probabilities that the plaintiff fell from the top of the ventilation unit and sustained injures.  Second, it is said that the plaintiff does not have to show that this is the only inference to be drawn from the evidence.  Third, the plaintiff says there is no evidential basis for the trial judge’s conclusion that the plaintiff’s fall and injuries could have happened in other ways, including falling off the ladder that led to the top of the ventilation unit or tripping over while he was on the ground.

Discussions

20.Due to his head injuries, the plaintiff is unable to recall the circumstances immediately before the accident.  The only other person who could speak to the events immediately before the accident is the plaintiff’s co-worker, Mr Fung, but he did not give evidence at the trial.  There is therefore no direct evidence as to how the plaintiff came to fall.  There are, however, several pieces of undisputed evidence on the circumstance surrounding the accident.  Firstly, the accident occurred when the plaintiff was at work inside the ventilation room. To carry out the insulation work that he was instructed to do, the plaintiff was required to get on top of the ventilation unit to work on the air-ducts, which were close to the edge of the unit and there was no fencing to prevent a fall.  Secondly, the plaintiff was found to be lying prostrate in a gap between two air-handling units.  There is no evidence that the ladder that led up to the top of the ventilation unit was nearby.

21.At the same time, each of the 1^st, 2^nd and 3^rd defendants had, not long after the accident, made written statements touching on the circumstances of the accident.  Specifically, the 2^nd defendant told the loss adjustor that he had been informed by Mr Fung that the plaintiff fell from the top of the ventilation unit.  Further, it was mentioned during the discussions at the restaurant that the accident occurred when the plaintiff was working on the top of the ventilation unit.  This was reduced into writing and both the 1^st and 2^nd defendants signed the minute in confirmation and in the contemplation that the minute would be used in court proceedings.  As for the 3^rd defendant, it gave a similar description of the accident in the statutory form that was provided to the Commissioner for Labour. 

22.When they made and signed the statement, minute and statutory form, all three defendants were prepared to accept that the plaintiff sustained the injuries as a result of a fall from the top of the ventilation unit.  Effectively, they had by these documents admitted that the plaintiff sustained injuries as a result of falling off the top of the ventilation unit in the course of his work.

23.Although none of the defendants witnessed the plaintiff’s fall, this is only relevant as to what weight is to be placed on their admissions.  In our view, given the serious nature of these documents, it is most unlikely that the 1^st to 3^rd defendants would make them without first establishing how the accident occurred.  On the contrary, it is more probable that not that they had made enquiries with Mr Fung to find out how the plaintiff came to fall onto the floor.  Indeed, when being cross-examined as to whether he had conducted investigation to find out the circumstances leading to the plaintiff’s fall and injuries, the 1^st defendant stated he had spoken to the 2^nd defendant and people who were present at the scene (Transcript p.65B-D).  We also note that there was no evidence which may throw doubt on the reliability of the cause of the accident as related by the 1^st to 3^rd defendants in these documents.  None of the defendants had offered evidence to explain what caused them to state or accept in these documents that the plaintiff fell from the top of the ventilation unit.  It is, for example, not said that they were merely guessing or assuming that the plaintiff fell from the top of the ventilation unit.          

24.In these circumstances, there is no basis for not affording weight to what was stated and admitted by the 1^st to 3^rd defendant in these documents as to how the accident occurred.  On the strength of these documents, an inference can reasonably be drawn that the plaintiff fell from the top of the ventilation unit and sustained the injuries in question.   

25.This brings us to the trial judge’s findings that it is not possible to say that this is the only inference that can be drawn from the evidence and that the plaintiff’s injuries could have been caused by a fall from the ladder as he was going to the top of the ventilation unit or that he tripped while still on the ground.  With respect, we do not agree that the plaintiff needs to show that the only inference that can be drawn is that he fell from the top of the ventilation unit.  What he is required to prove is that upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood: Holloway v.McFeeters (1956) 94 CLR 470, 480-481 cited in Jones v. Dunkel & Another [1958-1959] 101 CLR 298, 305; see also Jones v. Great Western Railway Company [1930] All ER Rep Ext 830. 

26.As to the two possible causes of the accident alluded to by the trial judge, there is no evidential basis.  There is no evidence that the ladder leading to the top of the ventilation unit was in the vicinity of where the plaintiff was found lying.  The photographs that were in evidence do not show that the floor was in such a condition that the plaintiff could have tripped over.        

27.For these reasons, the trial judge ought to have found for the plaintiff on the cause of the accident.  We therefore allowed the plaintiff’s appeal.  As there is no cross appeal on the trial judge’s assessment of the plaintiff’s loss and damages, we will enter judgment for the plaintiff on the claim in the sum of HK$2,931,687 together with interest and an order nisi for costs here and below; the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.  As directed at the hearing, the plaintiff’s solicitors shall draw up a draft order setting out the details of the terms of the judgment, including the calculations on interest, and provide it to the defendants for comments.  There is liberty to apply for further directions, if so required.   

Mr Ashok K Sakhrani instructed by Messrs Simon Si & Co assigned by the Director of Legal Aid for the plaintiff.

Mr Kumar Ramanathan SC leading Mr Kamlesh Sadhwani instructed by Messrs Krishnan & Tsang for the 4^th defendant.

The 1^st, 2^nd and 3^rd defendants, unrepresented, absent.