Ho Foon Cheung v. Shun Yip Engineering Co Ltd

CACV 33/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 33 OF 2011

(ON APPEAL FROM DCPI NO. 1973 OF 2009)

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Before: Hon Tang VP, Fok JA and Sakhrani J in Court

Date of Hearing: 26 October 2011

Date of Judgment: 7 November 2011

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JUDGMENT

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Hon Tang VP:

Introduction

1.The Plaintiff was a painter employed by the Defendant.  On 12 October 2006, he was engaged to touch up the paint on a wall on the roof of the Centre for Health-Protection Building in Kowloon.  Two parallel cylindrical air conditioning pipes laid across the roof.  In order to do his work, he had to get over the pipes to go from one side of the roof to the other.  The top of the pipes were 750 mm above the floor and the diameter of each was 500 mm.  So effectively, the obstacle he had to overcome was 750 mm high and over 1 m in width.  After he had finished his work, he had to re-cross the pipes.  Whilst re-crossing, the Plaintiff stepped onto the convex surface of the pipe.  He was holding a painter roller which was about 1.1 meter long in one hand, and carrying a bucket of paint weighing about 0.5 kilograms in the other.  He fell and his left femur was fractured.  This is what he said in his Declaration given on 12 January 2007 to the Labour Department ("the Declaration"):

"… I stepped on the surface of the 1^st pipe with my left foot. … Then I stepped on the same surface of the pipe with my right foot as well.  After that I raised my left leg and intended to land on the ground.  At that time, only my right leg stepped on the surface of the pipe and I lost my balance suddenly.  I then fell onto the ground on my side."

2.He sued the Defendant for negligence.  His claim was dismissed by Deputy District Judge Victor Dawes. 

3.The learned judge dismissed his claim for these reasons:

"13. For the following reasons, I am unable to accept that there was any  breach of duty on the Defendant’s part in failing to warn the Plaintiff of the existence of the Pipes and the danger created by their presence:

(1)   As accepted by Ms. Lee (for the Plaintiff), there was nothing that was inherently dangerous about the roof in question and the Pipes themselves did not create any hazard.  It is also not uncommon for there to be pipes and other utilities on roof tops of multi-story buildings. 

(2)   What the Plaintiff was asked to do was straightforward and the assistance of others was not required.  This was admitted by the Plaintiff when he was interviewed by the Site Safety Supervisor of Yau Lee after the accident.  Prior to the accident, the Plaintiff went to the roof everyday to change his clothes.  He was familiar with the environment in question.  It is difficult to imagine what instructions or warning his employer could have given to an experienced painter like the Plaintiff in respect of the Pipes. 

(3)   There is no duty on the part of an employer to decide on every detail of the system of work or mode of operation.  When the operation is simple, it is reasonable to leave the decision on how the work should be done to the workman to be decided on the spot.  See: Winter v. Cardiff Rural District Council [1950] 1 All ER 819 at 822-823.  I cannot see anything wrong with leaving the Plaintiff to work on the roof on his own on such a simple job.

(4)   In the statement given by the Plaintiff to the Labour Department after the accident, he suggested that he could have crossed over the Pipes by sitting on them and swinging his legs across.  Alternatively, he could have put down his tools so as to obtain better balance when crossing over.  As explained by the Plaintiff himself, there were other ways which would allow him to cross over the Pipes safely but he simply failed to do so.  

(5)   Further, it was clearly stated in the Plaintiff’s witness statement that when he was going over the Pipes, he was pre-occupied by other works which he had to finish on the day.  He admitted under cross-examination that his mind was somewhere else.  The Plaintiff was an experienced painter and there was no suggestion that he was overloaded with work on the day in question.  The Defendant cannot be responsible for the lack of concentration on the Plaintiff’s part."

The Appeal

4.This is the Plaintiff's appeal.  The appeal has been reduced to a simple point, namely, whether the employer should have warned the Plaintiff against stepping onto the pipes.

5.Mr Ashok Sakhrani, for the Defendant, submitted that the Defendant was under no obligation to do so.  Further, that such warning would not have prevented the accident.

6.Mr Sakhrani relied in particular on what the Plaintiff said in the Declaration:

"Q1: At the time of accident, why you chose to step on the surface of the pipe and then went to the working location as shown in photo 2?

A1: Before choosing to step on the surface of the pipe to reach the working location, I had investigated and considered that the width of pipes were 500mm in diameter, the pipes covered by a lay of cement, no watermark and oil stain.  Further, the height (of the pipe) was not high that about 750 mm.  I am 164cm and (it was) not slippery.  Therefore I thought stepping on the surface of pipe was safe. Thus I chose to step on the surface of pipe and went to my working location."

7.Mr Sakhrani submitted that it is clear from the above, the pipes posed no danger.  And that is why the Plaintiff chose to cross the pipes by stepping on to them.

8.I do not accept that the pipes posed no danger.  The pipes were not designed or meant to be used as steps. Apart from the convex surface, they are too high and too broad.  It is not difficult to visualise how difficult it is to cross the pipes, which as I have said were 750 mm high and over 1 m in width. 

9.Mr Sakhrani emphasized that the Plaintiff thought it was safe to step onto the pipes in order to cross them.  But that is precisely why he should have been warned otherwise. 

10.In my view, the fact that both the Plaintiff and Mr Sakhrani thought that it was safe to step on the pipes confirm my view that the employer ought to have warned the Plaintiff not to cross the pipes by stepping onto them.  What measures a reasonable employer should take in the circumstances may have to await adjudication in another case.  So far as the present case is concerned, it is accepted that the Plaintiff had not been trained to handle such situation nor told that on no account should he attempt to traverse the pipes by stepping onto them.  That is sufficient in my view to ground liability.  Nor do I accept that had the Plaintiff been properly warned, it would have made no difference.

11.Mr Sakhrani relied on Chalk v Devizes Reclamation Co. Limited, unrep, The Times 2^nd April 1999.  There the plaintiff (a labourer) was working in a scrap yard together with the foreman.  They were to unload some pallets of lead, weighing at between 300 cwt and 400 cwt.  While unloading one of the pallets from the back of the lorry by a forklift truck, one of the pallets broke and a lump of lead fell on to the ground partly on the weigh bridge and partly underneath the lorry.  It was necessary to move the piece of lead so that it could be lifted again by the arms of the forklift truck.  The plaintiff fell down, took hold of one of the bolts, slewed the piece of metal round and felt a sudden pain in his back.  There were steel bolts on the lump which enabled it to be moved or slewed.

12.On appeal, reversing the judge, the plaintiff's claim for damages against his employer was dismissed.  Swinton Thomas LJ said:

"As I indicated earlier, the recorder did not at any point identify the training or instruction or advice that ought, according to the plaintiff and his advisers, to have been given. If the plaintiff was expected to lift and had lifted, or attempted to lift, this heavy piece of lead the position might well be different.  It might be said that he should have been instructed not to lift heavy objects or when lifting to bend his legs before doing so and so on.

The plaintiff in this case was on his own initiative slewing round this piece of lead by getting hold of it with one hand and then slewing it around.  One poses the question, 'What instruction or training could possibly have been given which would have been relevant to an operation of that nature?'.  This was a one-off incident and I cannot for my part see how any advice or training could be given in relation to it.  That was why no doubt the learned recorder did not identify the instructions or training which he thought ought to have been given.

The task, as described by both the plaintiff and Mr Crannis, was a relatively simple one and the piece of lead, as appears from the passages in the evidence which I have read, moved quite easily.  The plaintiff himself considered that there was no risk in doing what he did and there was no reason why the two men should have anticipated any such risk either."

13.With respect to Mr Sakhrani, I do not believe Chalk helps him.  Quite the contrary, the present case is analogous to the situation dealt with in the first paragraph relied on by Mr Sakhrani.  In other words, the Plaintiff should have been warned of the danger.  The learned Lord Justice said "the position might well be different" if he had been expected to lift and had lifted or attempted to lift this heavy piece of lead.  In that case, he said:

"… It might be said that he should have been instructed not to lift heavy objects or when lifting to bend his legs before doing so and so on."

14.Mr Sakhrani sought to compare the painting job with what the workman in Chalk was doing.  We are not concerned with the actual painting job on the roof.  The pipes which laid across the roof was a hazard which the Plaintiff had to overcome.  As I have said, in a suitable case in the future, a court may have to consider what an employer has to do in such circumstances to make the place of work safe.  One possibility is that he should provide a stile.  Here the Plaintiff complained about lack of instructions and warning, and I would confine myself to such complaint.

15.Mr Tim Kwok, for the Plaintiff, relied on General Cleaning Contractors Ltd v Christmas [1953] AC 180.  In that case, an experienced window-cleaner who stepped out onto the sill 6¼ inches wide outside one of the windows which had an automatic locking device on closing.  Holding on to the bottom cross-piece of the top and outer sash with his right hand, he pushed it up to the top of the window frame, the lower sash being raised a few inches from the bottom of the frame.  This sash was liable to move at the slightest touch, though no complaint had been made about it, and there was evidence that similar defects were not uncommon.  In consequence of this sash closing so that the woodwork at the top of it came down on the employee's finger, he lost his balance, fell and was injured. 

16.It was held that the employers had negligently failed in their obligation to devise a reasonably safe system of work providing for an obvious danger, since they neither gave instructions to ensure that the windows should be tested before cleaning nor provided any apparatus, such as wedges, to prevent the windows from becoming closed.  In leaving it to the initiative of individual workmen to take precautions against a common danger, the employers failed to discharge their duty.

17.Mr Kwok relied on the following passages from the judgment of Lord Oaksey at page 189:

"In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen.  It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.  Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers.  Their duties are not performed in the calm atmosphere of a board room with the advice of experts. …"

18.Mr Kwok submitted that it would be to reverse the burden to require a workman to devise a safe system of work.  I agree.  Even if a hazard is obvious I do not believe an employer is entitled to leave his employee to fend for himself.  If a workplace contains an obvious hazard but the danger could be removed or reduced, by training, warning or otherwise it is the duty of the employer to do so. 

19.Mr Sakhrani said that the Plaintiff is a skilled man and is well aware of the dangers involved and relied on what Lord Reid said in General Cleaning Contractors Ltd at page 198:

"The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out. On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions.  That may be so but, in my opinion, it is not a sufficient answer.  Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions.  It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing.  No doubt he cannot be certain that his men will do as they are told when they are working alone.  But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do. In this case the appellants do not appear to have done anything as they thought they were entitled to leave the taking of precautions to the discretion of each of their men.  In this I think that they were in fault, and I think that this accident need not have happened if the appellants had done as I hold they ought to have done.  I therefore agree that the appeal should be dismissed."

20.The Plaintiff was not aware of the danger of stepping on the pipes.  Quite the contrary, he thought it safe to do so.  Nor is it the Defendant's case that the Plaintiff could be faulted in that respect.  It is true the Plaintiff is an experienced painter, but there is no evidence that he is experienced in dealing with the danger posed by the pipes.

21.Nor does it matter that the Plaintiff was aware that there was a "safe" or "safer" way to get over the obstacle.  Mr Sakhrani relied on the fact that the Plaintiff said he could use "one leg to cross the pipe and then sitting on the top of the pipe and then raise the other leg".  Transcript 14R.  But the Plaintiff was not told that that was a safe way (if it is indeed safe) to get over the pipes. More importantly, he was not warned that it was unsafe to cross by stepping onto the pipes.

22.I return to para. 13 of the judgment.  So far as para. 13(1) is concerned, after looking at the transcript, it is quite clear that Ms Rebecca Lee, then appearing for the Plaintiff, had not accepted that the pipes did not pose any hazard.  It is true that it is not uncommon for there to be pipes and other utilities on rooftops of multi-storey buildings, but that does not necessarily make them any less of a hazard.  Nor render it unnecessary for an employer to at least devise a safe system whether by warning, training or otherwise.

23.Para. 13(2) – It is true that what the Plaintiff had to do, namely, touching up the paint on a wall, was straightforward.  And that he was familiar with the roof.  But the accident shows that at least the employer should have told the Plaintiff never ever to step onto the pipes, and to warn him of the danger of doing so.

24.Para. 13(3) made the point that there is no duty on the part of an employer to decide on every detail of the system of work or mode of operation.  The learned judge said the job was simple.  The painting job may be simple.  I have already said it is not acceptable for the employer not to warn the Plaintiff against the danger of stepping onto the pipes.

25.Para. 13(4) – It is true that the Plaintiff could have crossed over the pipes by sitting on them and swinging his legs across.  He should have been told to do so (assuming that it is safe to do so). He should have been told that it was dangerous for him to step onto the pipes. He was not told.  He did what he thought was safe.  It was not the Defendant's case that that was not a reasonable decision.

26.Para. 13(5) - It is said that the Plaintiff was preoccupied because he was thinking of his other unfinished work when he was crossing the pipes.  Preoccupation and momentary inattention are to be expected from a workman especially when they thought they were doing something which was safe.  The Plaintiff got over the pipes the first time without any incident. On the return journey, he fell.  He said he was thinking about other work he had to do.  It is not an excuse for an employer to say that the accident resulted from momentary inattention on the part of an employee.  The employee should not have been put by the employer into the unsafe position in the first place.

27.So for the above reasons, I would allow the appeal on liability.

Quantum

28.The Plaintiff also sought to appeal against quantum, namely, the award for pain and suffering and loss of amenity (PSLA) of HK$200,000.  That appeal was not pressed by Mr Kwok.  Quite rightly so, in my view, because on the finding of the learned judge that the Plaintiff had exaggerated his conditions, we could not possibly interfere with the award.  I dismiss the appeal against quantum. 

Disposition

29.I would allow the appeal, set aside the judgment, and award the Plaintiff the sum of $257,986.67 (with interest, on the usual basis), namely, the amount which the learned judge would have awarded had liability been established, with costs in favour of the Plaintiff below.  So far as the costs of the appeal is concerned, the Plaintiff should be paid 90% of his costs by the Defendant to be taxed if not agreed.  The Plaintiff's costs should be taxed in accordance with the Legal Aid Regulations.

Hon Fok JA:

30.I agree with the judgment of the learned Vice-President and there is nothing I can usefully add.

Hon Sakhrani J:

31.I agree with the judgment of Tang VP.

Mr. Tim Kwok instructed by Messrs Yeong & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr. Ashok K. Sakhrani instructed by Messrs. W. K. To & Co. for the Defendant