Wong Kit Chun v. Wishing Long Hong
Read the full judgment text of CACV 168/2000 on BabelCite. This Court of Appeal judgment was delivered on 17 November 2000.
1. This is an appeal against the judgment of Deputy Judge S Kwan handed down on 15 March 2000 in a fatal accident action whereby she dismissed the plaintiff's claim against the defendant . She assessed the damages to be $2,402,000 if 100% liability was established against the defendant.
Cites 1 case
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CACV000168/2000 CACV 168/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL APPEAL NO. 168 OF 2000 (ON APPEAL FROM HCPI NO. 349 OF 1996) -----------------------------
----------------------------- Coram: Hon Rogers VP, Woo JA and Burrell J Dates of hearing: 9 and 10 November 2000 Date of handing down judgment: 17 November 2000 ----------------------- J U D G M E N T ----------------------- Hon Woo JA (delivering the judgment of the Court): Introduction 1. This is an appeal against the judgment of Deputy Judge S Kwan handed down on 15 March 2000 in a fatal accident action whereby she dismissed the plaintiff's claim against the defendant . She assessed the damages to be $2,402,000 if 100% liability was established against the defendant. 2. The facts that gave rise to this action are quite exceptional. The plaintiff's late husband, Mr Cheung Chung Wai ("the deceased"), was employed as the personal secretary to Mr Zai Chung Ling ("Mr Zai"), the sole proprietor of the defendant. On 18 October 1993, Mr Zai took an 8-day trip to the Mainland, including a visit to Huangshan, the Yellow Mountain. Mr Zai wanted to make a geographical inspection of the Mountain as a reference for future investment. The last day of the trip was 25 October 1993 when there was to be a visit to the White Goose Ridge of the Mountain to view the sunrise there. 3. There were six persons in the travelling group, Mr Zai and his wife Madam Lu Tsi Yen ("Mrs Zai"), Mr Pang Kam Choi (a free-lance photographer invited by Mr Zai to take photographs of the trip), Mr and Mrs Ho Lai Chiu (Mr Zai's friends) and the deceased. Mr Zai paid for all the expenses for the whole trip for the entire party. Mr Zai was 80 years old, Mrs Zai about 68, Mr Pang also about 68, whereas the Hos and the deceased were in their mid-forties. None of the six had been to the Mountain before. 4. On 24 October 1993, the group was lodged in a hotel at the foot of the Mountain, and they were to rise early to go up the Ridge to view the sunrise. At dinner at about 6:00 pm, the driver of the group mentioned that it was necessary to bring electric torches on their way up the Ridge because it would be dark before sunrise. 5. It is not disputed that when the party set off from the hotel sometime before sunrise on 25 October 1993, there were only 3 torches available to them. Mr Zai used one of the torches, Mr Pang was given one torch by the deceased, and the remaining torch was with Mrs Zai. However, the torch that Mrs Zai carried was somewhat defective, giving less than the lighting intensity of other torches. 6. The path going up the Ridge consisted of flights of steps with lengths of platforms in between. The steps and platforms were constructed with stones that were irregularly shaped and the edges between the stones were cemented. The surface of the steps and platforms was not entirely flat. The width of the path varied from place to place. Some parts were about 8 feet wide, whilst generally it was wide enough for 2 to 3 persons to walk abreast. Every now and then along the platforms there were gaps in between horizontal lines of stones, used as ditches to drain rain. The path was lined on both sides with shrubs, bushes and trees. On the way up the Ridge, Mr Zai and Mr Ho were ahead in front and the deceased was with Mrs Zai at the tail of the group, while Mr Pang and Mrs Ho were somewhere in between. The deceased all of a sudden fell because he had stepped into one of the rain ditches, measuring about 4 inches wide and 4 inches deep. He sustained injuries. Arrangements were made for taking him back to the hotel while the rest of the party proceeded up the Ridge so as not to miss the sunrise. 7. At about 10 am, the deceased was taken to a local hospital. He decided to come back to Hong Kong for treatment. The whole party returned to Hong Kong on the same day as scheduled and the deceased was immediately admitted into the Queen Mary Hospital. The main injury he had suffered was to his spinal cord and an operation was carried out to treat that injury. Unfortunately, due to complications after the operation, he died on 10 November 1993. There is no dispute that his death resulted from the accident. 8. This action was brought by the deceased's wife, for herself and for the dependants, the two children of the family. The claim is based on negligence and breach of employer's duties towards the deceased. There is no dispute that the deceased was acting in the course of his employment when the accident occurred, and employee's compensation in the sum of $591,902.39 had been paid to the plaintiff. The action was brought to seek damages under the common law. 9. After a four-day trial in March 2000, the Judge handed down judgment on 15 March 2000 dismissing the claim with costs, as she found that the plaintiff had failed to prove either negligence or breach of employer's duty towards the deceased. She also assessed the damages to be $2,402,000, but this sum was not recoverable because of her finding of no liability. The plaintiff now appeals. The grounds of appeal 10. The grounds of appeal challenge the findings made by the Judge in various aspects, namely, the Judge's refusal to accept the plaintiff's evidence of what she had been told by the deceased, various inferences drawn by the Judge, her finding that walking on the path up the Ridge without a torch to the walker was not inherently dangerous, her ruling that the defendant was not in breach of his employer's duty and was not negligent, and her views as to causation. We shall deal with each aspect according to order in dealing with the grounds in the written skeleton of Mr Yau, counsel for the plaintiff. Even though at our invitation Mr Yau decided to drop the ground against the Judge's rejection of the plaintiff's evidence we shall shortly state our views. Rejection of the plaintiff's evidence 11. This could have been an important aspect of the appeal because had the plaintiff's evidence been accepted, the factual basis upon which the Judge could have decided the case would have been entirely different. The plaintiff did not participate in the trip and her evidence was based on what she was told by the deceased on 17 October 1993 before the trip commenced, over the telephone on 24 October 1993 and after his admission into the Queen Mary Hospital. The Judge apparently took note of the fact that this hearsay as to what the deceased had said remained substantially the same in the plaintiff's witness statement and her evidence at the trial, 7 years after the incident. She said at p 5P-6B of her judgment:
12. She proceeded to examine the plaintiff's evidence and came to rejecting it. We are asked to reverse the Judge on the basis that the reasons given by the Judge are not satisfactory or because it unmistakably appears from the evidence that she had not taken proper advantage of her having seen and heard the witnesses: see Watt v Thomas [1947] AC 484 at 488. Mr Yau also relies on the Court of Final Appeal decision in ADS v Brothers [2000] HKC 511 where at 531G-532B, Lord Hoffmann NPJ reversed the finding of the Court of First Instance as affirmed by the Court of Appeal that the appellant Mr Brothers acted fraudulently in concealing a cash flow projection during negotiations for refinancing. One of the reasons Lord Hoffmann gave is that Mr Brothers was never given a fair opportunity to explain on two vital points about his state of mind on which the trial judge based to make the finding against him. The complaint is that the Judge had not given the plaintiff the opportunity to remove the Judge's doubt or reservation over the plaintiff's ability to recall the incidents recounted to her by her husband so clearly after 7 years, and therefore it was unfair for the Judge to express her scepticism to the plaintiff's evidence in its entirety. 13. While it would be beyond criticism had questions been put to the plaintiff in this regard, we do not think that the situation is the same as that in ADS v Brothers. There the Court was considering whether the finding of fraudulent concealment was proper, and concluded that a fair opportunity should have been accorded to Mr Brothers for his explanation of his state of mind relating to his act or omission at the material time. In the instant case, the Judge was assessing the credibility of the plaintiff. She had the advantage of observing the witnesses when they were giving evidence before her, and we are only examining the evidence in the transcript without that advantage. The Judge did not say that she did not believe the plaintiff because the latter was able to remember the utterances of the deceased so clearly in her statement and similarly in her evidence. What she said was that the plaintiff claimed to be able to give a faithful account of all the things the deceased had told her on various occasions 7 years ago. Her rejection of the plaintiff's evidence was based on her assessment of all the evidence before her, resulting from the care with which she dealt with the plaintiff's evidence. We are not persuaded that the Judge erred in this respect. Is the path inherently dangerous? 14. The plaintiff challenges the Judge's holding that the path up the Ridge was not inherently dangerous. The Judge said at p 12M-13F of her judgment:
15. At the invitation of Mr Yau, we viewed the two video tapes taken by Mr Shum that had been received in evidence before the Judge. Mr Yau also relies on the evidence of Mr Pang, called by the plaintiff, who described "the stone steps were very difficult, very steep and not very even". Mr Pang agreed that it was by no means an easy walk, saying "without a torch, you just couldn't do so." It was Mr Pang who asked the deceased to provide him with a torch for himself, because he would be carrying a lot of photographic equipment. Mr Yau relies on the advice given by the driver during dinner to carry torches, and on the fact that in 1996 some of the ditches were covered to demonstrate that they in an uncovered state posed hazards for path-users. He also challenges the weight apparently placed by the Judge on some tourists going up the path without torches, for that should be a matter of no consequence. 16. While we agree with Mr Yau that the fact that some trekkers went up the path without artificial lighting in the dark by no means allows a reasonable inference to be drawn that walking in that fashion was reasonably safe, we must say that the condition of the path as one views the tapes with some imagination was not far from that described by the Judge, that it was not so dark that one could not see the path. Mr Pang wanted a torch for himself, and described the steps were very steep and not very even and that one could not be able to go up without a torch. His evidence must be examined in the light of the fact that he was carrying his photographic equipment. On the other hand, the driver's advice must be correct, for it would certainly assist the trekkers if sufficient lighting was available. We are not persuaded that the Judge was wrong in her finding that "the path was not easy, and that one must be careful in walking on it especially before daybreak", in particular in view of her observations relating to the eye being able to get used to the dim surroundings and the contrast between the ditches and the surface of the path. There are however, two questions to be answered. The first is whether the path was inherently dangerous. Despite Mr Yau's submissions, we cannot say that it was. The second question is whether the path was dangerous in the dark. The question must be answered in the positive, because not only does the evidence from Mr Pang cited above support that answer, but also that torches were acquired for the trekking confirms it. The path was with steps and platforms not entirely flatly paved and not regular in shape or on surface, horizontally lined at various places with wide rain ditches while on both sides were shrubs, bushes and trees, casting shadows and making the surface of the path less visible depending on circumstances, and without illumination it would surely be dangerous to walk on it. Moreover, the group had never been to this area or up that path before; darkness would certainly have posed problems to them. Indeed, Mr Lai for the defendant does not even attempt to gainsay. The risk involved would be much reduced if the trip was carried out in broad daylight, and alleviated if torchlight was available in the dark. Who bought only 3 torches and why? 17. It is common ground that only 3 electric torches were available to the party on that unfortunate day. The Judge found as a fact that
18. Mr Yau complains about the Judge's findings that it was not at the insistence of Mr Zai that only 3 torches were bought for the party, and that the duty of the defendant towards the deceased stopped when he left the deceased to decide whether or not torches were required and if so, how many. He also submits that the Judge erred in dealing with causation. 19. Since the Judge did not accept the evidence of the plaintiff, the only evidence in this respect was from Mrs Zai, Mr Pang and Mr Ho. None of them could say positively who made the decision to buy just 3 torches or who went to buy them. Mrs Zai did not hear any discussion on the topic. Mr Ho said that at dinner time, when the driver mentioned that torches should be bought for the next morning everyone expressed agreement, but there was no discussion as to who should buy the torches or how many should be bought. Mr Pang said that in the discussion, the deceased said that as they were setting out so early, it was so dark without a torch. The rest is the opinion evidence from the plaintiff and Mrs Zai. On the one hand, the plaintiff said that if the deceased were given a free hand, he would have bought 6 torches, and on the other hand, Mrs Zai testified that on the basis of Mr Zai's generous character, Mr Zai would not have purchased insufficient number of torches for the walk. Mr Yau challenges the inference drawn by the Judge that there would be no reason for Mr Zai to economise on 3 torches if he had spent so much on the trip. He argues that if Mr Zai was unlikely to economise on torches or trivial matters, there was no good reason why the deceased his personal secretary should have done the contrary which would not do justice to the image of Mr Zai as a generous person in the eyes of his business friends. Moreover, if the deceased had to do his job properly and if his boss would not be bothered on such a trivial matter, the best or least unacceptable option was to buy 6 torches. The deceased also had much more experience trekking in mountains; he would have been more aware of the need to be safely equipped for the trip than Mr Zai. Mr Yau draws our attention to the plaintiff's opinion of Mr Zai as an employer and philanthropist in her position as one of the defendant's employees for a period. She described Mr Zai as stingy and behaved generously only because he wanted to show off. Mr Yau submits that in all probabilities, it is inherently more probable that Mr Zai's view (to buy only 3 torches) permeated into the ultimate decision to buy the number of torches eventually acquired. 20. We are not disposed to hold the Judge wrong in arriving at the conclusion that it was the deceased who bought 3 torches instead of 6 torches. The evidence was that there were only 3 torches for the party when they set off in the morning of 25 October 1993 before daybreak. As the deceased was the personal secretary to Mr Zai and the rest of the party were Mr and Mrs Zai and their friends, it was not unreasonable to infer that more likely than not it was the deceased who went to buy the torches. As to the reason why only 3 torches were bought, one enters into the realm of speculation rather than inference because on all the evidence as raised by Mr Yau and relied on by the Judge, who rejected the plaintiff's version and opinion, no single inference was more probable than the other. How about the deceased, relying on the younger age and fitness of himself and the Hos, decided to buy 3 torches instead of 6? Might he not think that 3 torches were sufficient for a pair of persons each? Could it be that there were not more than 3 torches available in the shops and that was why he only obtained the whole lot of 3? There seems to us to be no sound basis for our interfering with the conclusion reached by the Judge that it was the deceased who bought the 3 torches, but the state of the evidence is such that no reason can be found as to why he only acquired 3 torches and not more. The Judge's reasoning on causation 21. On the other hand, we are persuaded by Mr Yau that the Judge's reasoning on causation of the accident is flawed. While she rejected the plaintiff's evidence that the deceased had received instructions from Mr Zai to look after Mrs Zai, she used this evidence as the basis for analysing whether the lack of a torch was the cause of the deceased's fall. She said "the deceased was trying to save Mrs Zai from falling that he stepped into a ditch inadvertently in agony of the moment" and concluded that "it seemed ... unlikely that the deceased would not have tripped over if he had been holding a torch." This must be wrong, because the Judge's finding was that "Mrs Zai was walking on her own when she heard a sound and turned to discover that the deceased had fallen on the path." On the basis of this finding, the deceased was walking behind Mrs Zai. While he tripped over a ditch, he did not have a torch in his hand, the "agony of the moment" in trying to save Mrs Zai was simply irrelevant and should not have been relied on by the Judge as a basis for making a finding on causation. The Judge did not make any other finding on causation. At that time, Mrs Zai's torch, on the basis that it was on, did not provide full lighting intensity as the other torches. The cause of the accident could only have been either that the deceased was not careful to notice the ditch over which he tripped or that he could not see the ditch clearly in the absence of a torch in his hand or because there was insufficient lighting from Mrs Zai's torch, or her torch was not shone on the path in front of the deceased, or indeed a mixture of all these. We consider that the Judge was wrong to find that the deceased would still have tripped even if he had been holding a torch. The standard of care 22. On the standard of care, the submission of Mr Yau runs as follows. Once it is accepted that the deceased was then acting in the course of employment, the defendant owed him a duty to take reasonable care of his safety. The deceased was at work to see the sunrise and he should be given proper equipment, so that he could do so safely. The standard of care is always imposed on an hypothetical ordinary employer of reasonable prudence and competence. The standard of care may vary from case to case depending on the circumstances. Factors in determining the standard of care include magnitude of the risk, likelihood of the occurrence of the risk and the cost required to reduce or extinguish such risk. The torch only cost RMB 18 each. It is difficult to justify saying that as the deceased was then going out for sight-seeing as opposed to working properly-so-called that the standard of care of the employer would be lowered to such an extent that the deceased had to walk on the path under shared illumination or no illumination. Mr Yau also urges us to look at the situation of the deceased sympathetically: it is difficult for the deceased as the personal secretary to Mr Zai to tell his boss that he would not go up the Ridge if he did not have a torch of his own, so that his participation in the trek that morning should not be used as contributing towards his eventual misfortune (see Pead v Furness, Withy & Co, Ltd [1956] 2 Lloyd's Rep 149, @ 155-156). We accept these submissions. Analysis of the facts as found by the Judge and the evidence 23. We now turn to analyse the facts found by the Judge. We start from the undisputed basis that the deceased was acting in the course of employment at the material time, and that the defendant owed him a duty to take reasonable care of his safety. Disregarding the evidence rejected by the Judge, the most relevant findings of fact and evidence are as follows:
24. The parties do not raise any objection to the finding that the number of torches available to the party was 3. Since the Judge did not accept that it was Mr Zai who instructed the deceased to buy only 3, one has to draw inference from the facts as found why there were only 3 torches for the party. As everyone seemed to have agreed at dinner that torches were required for the trekking the next morning, and the deceased being the personal secretary to Mr Zai, the reasonable inference that can be drawn is that it was probably the deceased who bought the 3 torches. That was the finding of the Judge. Why the deceased bought only 3 torches? In the state of the evidence, as we said before, no reasonable finding can be made. Whatever the reason, the fact was that the deceased did not have a torch. In the circumstances, was it the duty of the boss to ensure that the deceased was reasonably safe in the course of employment? There are several matters that are most relevant. The path going up the mountain was dangerous though not inherent dangerous, as any path not entirely flatly paved in any mountainous area in the dark would be. The advice of the driver at dinner was that torches were necessary and that advice was accepted. The time of going up the Ridge was before sunrise and therefore quite dark. 25. A strange phenomenon which must be reasonably explained is the fact apparently accepted by the Judge that the deceased was at the tail of the party together with Mrs Zai. Bearing in mind his relative young age, fitness and experience in mountain trekking as compared with the rest of the party, why should he have remained at the back? Two reasonable inferences can be drawn: (1) he was requested or instructed by the boss to look after Mrs Zai, or (2) he himself took the initiative of looking after Mrs Zai or keeping her company as she was walking the most slowly amongst all in the party. (1) had been rejected by the Judge, and (2) seems to be the only other reasonable inference open to this Court. It would not be reasonable to attach any blame to the deceased for acting in this manner. 26. The situation would therefore be as follows. The deceased was without a torch, and Mrs Zai's torch did not work effectively. The deceased was keeping Mrs Zai company when both of them only had the lighting from the somewhat defective torch to shine on the path in front of them. Mr Zai was in front and he might not know of the circumstances at the back. But he being about 10 stone-steps in front and knowing that only 3 torches were used by the party of 6, as a reasonably careful person he should have either slowed down or waited to make sure that the lighting from the 3 torches would be shared amongst all. That he did not do. Mr Ho's evidence was that Mr Zai was walking quite fast; he did not stop or slow down not because time was short but perhaps because he wanted to give the impression that he was energetic for his age. He even called out to those behind him to hurry up. 27. Moreover, when the party set off that morning, Mr Zai would have known that there were only 3 torches available to the whole party. He himself got one of the torches, he should know that Mr Pang had one and his wife also had one. So, Mr and Mrs Ho as well as the deceased did not have any. These three were in their forties and were the youngest and presumably the fittest amongst the group. Should Mr Zai be under a duty to remind them to walk carefully? We do not think so, because any sensible adult would appreciate the risk involved. However, the deceased being an employee, Mr Zai as his employer owed him a duty to provide him with sufficient lighting in the circumstances even if the deceased chose not to buy a torch for himself or at least to give him a choice whether he should go up the Ridge. In all the circumstances of this case, it having been proved and as the Judge had found that there were only 3 torches available to the party of 6, and the deceased not having the use of a torch either on his own or was only able to share a somewhat defective one with Mrs Zai at the material time, Mr Zai would have been duty-bound as an employer to ensure his safety, by either instructing him to acquire more torches or by not requiring him to go up the path until daybreak or at all. Mr Lai argues that there is no evidence to show that the lighting from sharing the 3 torches was insufficient. We do not agree. Mr Lai's argument has ignored the fact that Mr Zai and Mrs Zai each had a torch, which is indicative that sharing the light from the 3 torches was not sufficient to make them feel safe in walking up the path. Otherwise the Zais would not have bothered to carry their torches; the younger participants could hold them instead. Further, Mr Lai's argument does not take into account the evidence of Mr Pang who demanded to have a torch for himself. Sharing of a torch would not be satisfactory as the person without a torch would have no choice as to the direction of the beam the torch used by another person provided. The risk that the deceased was subjected to was reasonably foreseeable by a reasonably prudent employer. 28. On the way up the path, since the lighting from the 3 torches would have to be shared by 6 persons, Mr Zai should also have ensured that the deceased had sufficient lighting to walk safely. Mr Zai's age would not be relevant in the consideration of the standard of his duty, which is the standard of an objective reasonable employer (see Nettleship v Weston [1971] 2 QB 691, at 699E-H per Lord Denning MR), and the Judge was wrong in this respect. We therefore find that the defendant was in breach of that duty towards the deceased. The deceased had his foot caught in a ditch 4 inches wide and 4 inches deep, causing him to fall and sustain severe injuries. Had there been sufficient lighting, this accident could well have been avoided. There is evidence that the deceased was an experienced mountain trekker: he had gone up mountains in Xiamen in order to buy timber for the defendant. In our judgment, in view of all the evidence the reasonable inference to be drawn is that the deceased's fall was caused by insufficient lighting. This inference is far more probable than that he was careless in getting his foot trapped in the ditch. 29. How about contributory negligence on the part of the deceased in that his fall on the path was caused by his own carelessness? The burden is on the defendant to prove contributory negligence, but of course contributory negligence can be based on all the evidence before the court, not necessarily only that adduced by the defendant. There is no evidence that it was due to the deceased's own carelessness that he fell. Based on all the findings made by the Judge and the evidence we have recounted, we consider that the deceased should have realised that he was taking a risk in going up the mountain in the circumstances. We are, however, of the view that not a substantial share of blame should be attached to the deceased for his failure to ensure his own safety either by acquiring a torch for himself or for delaying or giving up the trekking that morning. As to how to apportion damages appropriately, what Lord Denning said in Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 326 is instructive:
30. The deceased as an experienced mountain trekker should have appreciated and foreseen the risk involved in going up the path without adequate illumination. Knowing that he did not have a torch for himself, he could have expressed his wish not to go up the path or given an excuse for not participating. When faced with inadequate illumination on his way, he should have been extremely careful to look after his own safety. He has failed to take sufficient care of himself in one or more of these ways. In all the circumstances, we think the contributory negligence in this regard should justly be assessed at 20%. The appeal therefore succeeds to the extent that the defendant is liable to the plaintiff for 80% of the damages as assessed by the Judge, which must be reduced by the employee's compensation received by her. We also make an order nisi under Order 42 rule 5B(6) of the RHC that the plaintiff should have her costs here and below, and her own costs be taxed in accordance with the Legal Aid Regulations.
Representation: Mr Albert K C Yau, instructed by Messrs W K To & Co, for the plaintiff Mr Thomas Lai, instructed by Messrs K F Wong & Co, for the defendant Appeal to Court of Final Appeal by the defendant dismissed. Please refer to FACV7/2001 dated 10 September 2001 |
Cases cited in this judgment