You are on page 1of 12

LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

Court of Appeal of Hong Kong

[Index] [Search] [MS Word format] [Context ] [Help]

CACV 399/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 399 OF 2007

(ON APPEAL FROM HCPI NO. 1099 OF 2006)

____________

BETWEEN

LEUNG PO CHUN (梁保春) Plaintiff


and
YAT LEE BOOTH - CONSTRUCTION CO ., 1st Defendant
LIMITED
(溢利棚業有限公司)
HANISON CONSTRUCTION COMPANY 2nd Defendant
LIMITED
(興勝建築有限公司)

____________

Before: Hon Tang VP, Yam J and Stone J in Court

Date of Hearing: 29 May 2008

Date of Judgment: 6 June 2008

_______________

JUDGMENT

_______________

Hon Tang VP (giving the judgment of the Court):

This appeal

1. This is a personal injuries appeal from a judgment of Deputy Judge Carlson handed down

1 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

on 14 September 2007.

2. In that judgment the learned judge below gave judgment in the sum of HK$679,210.00 for
the plaintiff, a scaffolder who was injured in the course of his employment at a building site at
Tai Wo Hau, Kwai Chung.

3. Two elements of the judgment of the trial judge are at issue in this appeal: first, the issue of
contributory negligence, and second, that of quantum, and in particular the multiplicand to be
applied in the damages computation.

4. We deal with each in turn.

Contributory negligence

5. The plaintiff is a very experienced dismantler of bamboo scaffolding. At the time of the
accident on 7 May 2003, he was 43 years old, and had been employed by the 1st defendant for
about 12 years. The 1st defendant was a scaffolding contractor providing services for the
erection and dismantling of scaffolding at building sites.

6. The accident occurred at a building site at Tai Wo Hau, Kwai Chung (“the Site”) where
Phase 7 of the redevelopment of the Kwai Chung Estate was taking place.

7. The 2nd defendant was the principal contractor at the Site and as such responsible for the
material and personnel hoists which were in use at the Site, which comprised tower blocks of
residential flats.

8. The accident occurred whilst the plaintiff was dismantling the ‘catch fence’ in the shape of a
fan which had been built at first floor level at the base of the material hoist. The material hoist,
which ran the full height of the tower block, was enclosed by netting whose purpose was to
prevent material carried on the platform from falling out and onto the ground below.

9. The catch fence built at the base of the hoist was there in case something got through the
netting. The material hoist was there to carry building material up and down the tower block as
it was being built. The hoist comprised a platform on which the material would be placed and
thence transported to the required level of the tower block. No person was allowed to enter
this hoist. It was used solely for the movement of materials.

10. On the day of the accident, the plaintiff, together with Mr Lee, another workman, were told
by their foreman to go to the Site in order to dismantle the catch fences at the foot of the
material hoists at Blocks 4 and 5. After they had dismantled scaffolding at Cheung Sha Wan
earlier that morning, they went to the Site, arriving there at about 1 p.m. Their foreman was not
there but they were able to find the Site foreman who told them where to go.

11. The occupation of a bamboo scaffolder is specialised and highly dangerous. It requires
scaffolders to work at great height exposed to the elements on the outside of buildings.
Scaffolders specialise in either erection or dismantling. Erection of scaffolding requires more
expertise than dismantling. The plaintiff as well as Mr Lee, were dismantlers.

12. The dismantling of the catch fence at Block 4 was uneventful. That took about an hour.
When they went to Block 5 they discovered that the catch fence itself was ‘drooping’ down,
whereas a well constructed and maintained catch fence should be level and parallel to the
ground.

13. There was dispute at trial as to whether the catch fence was indeed drooping, but the
learned judge found on a balance of probabilities that it was.

2 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

14. It is common ground that if a scaffold that is to be dismantled is in disrepair and not as it
should be, then any defects should be corrected before the dismantling process begins. In
that case the ‘droop’ should have been corrected so that the fan-shaped catch fence would
have been made level and parallel to the ground before the dismantling process was
embarked upon.

15. It appears that it was suggested on behalf of the defendant to the plaintiff and Mr Lee, and
accepted by them, that the way to dismantle, such a ‘fan’ is for the scaffolders to get onto the
fan and to cut away the ties that bind the outer poles first, so that the scaffolders will be
working inwards towards the building itself to where the fan finally was secured on to the
material hoist, and also was attached to the building itself to upright bamboo poles that had
been bolted to the building, and by ropes tied onto the building. On this issue the learned
judge said:

“10. Having dismantled the fan inwards it has been suggested to the Plaintiff that
the remaining poles could be cut away remotely by attaching a knife to a bamboo
pole, as shown in the photograph Exhibit D4, and either reaching up and cutting
the remaining ties or perhaps from above by reaching out from the adjacent
windows with the knife attached to the bamboo pole and cutting the remaining ties,
although it is accepted that this method may have fallen foul of regulations that
required workmen working at height to be strapped to life lines and/or stand behind
safety fences.”

16. This appeared to be an admission by the defendants that the plaintiff was expected to
work in a way which might have fallen foul of safety regulations!

17. It was also contended on behalf of the defendants and accepted by the plaintiff that the
safest option was to use a mobile working platform placed underneath the ‘fan’, from where
both the plaintiff and Mr Lee could have reached up and cut the ties, and then eased the
bamboo poles down to the ground.

18. Deputy High Court Judge Carlson went on to say:

“12. In fact what happened, according to the Plaintiff and Mr Lee, is that on finding
the fan to be drooping they could not safely get onto it and cut the ties working
inwards from the outside. The Plaintiff decided that in such circumstances his best
option was for him to get into the material hoist and from there to cut the inner-most
ties that bound the fan to the structure of the hoist itself. The Plaintiff says that he
assumed that the material hoist was not in use. Nobody was about and the hoist
operator was nowhere to be seen. What he did was to use a wooden plank to jam
the hoist door open at ground level. This had the effect of disabling the hoist. He
then got into the frame and using its sides climbed about 18 feet to the level where
the fan was attached to the hoist frame from where he could then proceed to cut
the ties. In the meantime, Mr Lee had walked up to the first floor and gone into one
of the flats from where he could look out onto the fan from one of the windows that
adjoined the fan in order to see where and how he could cut the guide ropes.

13. Their plan in these circumstances was to cut the fan away from the hoist
frame and by cutting away the guide ropes and ties at the sides, they would then
lower the fan to the ground as an entire structure. Once on the ground they would
then take it apart. By adopting this procedure, they would complete their task
quickly and they thought safely. They had already, according to them, cordoned off
the area below the fan by using pedestrian barriers which are also visible at pages
274 and 276.”

19. The learned judge found on the balance of probabilities that the plaintiff had not jammed

3 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

the hoist door open at ground level. What happened was that shortly after the plaintiff had
climbed to the first floor level of the hoist frame, the hoist operator returned to the Site. Having
obtained the keys from the chief mechanic, he entered the hoist operating room and he
pressed the button to send the platform to a higher floor. His evidence is that the door to the
hoist was shut, and the learned judge said:

“14. … There was no indication that anybody was in the hoist frame and in any
event there was an express prohibition that no person should enter the hoist. None
the wiser as to the Plaintiff’s presence he sent the platform on its upward journey.
The Plaintiff heard the platform coming and he shouted out to have it stopped but
to no avail. It struck him and carried him up with it for a short distance. Fortunately
his screams of pain were heard by Mr Lee and by Mr Lau who was able to shut the
system down immediately but not before the Plaintiff had sustained a serious injury
to his right knee, the particulars of which I will fully describe when I come to the
issue of the appropriate quantum of damages. Suffice it to relate that an
ambulance was called and the Plaintiff was removed to hospital.”

20. As scaffolding work is highly dangerous, the Labour Department has issued a “Code of
Practice for Bamboo Scaffolding Safety” (“the Code”). As the Code makes clear:

“1.2 This Code of Practice has a special legal status. Although failure to observe
any provision of this Code is not itself an offence, that failure may be taken by a
court in criminal proceedings as a relevant factor in determining whether or not a
person has breached the relevant safety and health legislation under the Factories
and Industrial Undertakings Ordinance.”

21. Para. 4.3.1 of the Code provides:

“Safe working methods and practices on site should be ensured as follows:

(a) Preparation and use of a detailed method statement

The extent of detail in a detailed method statement will depend upon the size
and/or complexity of the work, with a simple job requiring a simple method
statement and repetitive tasks being covered by standard sheets. Preliminary
method statement produced at the planning stage should be developed into a
detailed method statement that should be incorporated into a detailed scaffolding
plan. The whole method statement should be reviewed and updated as necessary so
that it remains current. It should be distributed to all those concerned with the
supervision of scaffolding work.” [Emphasis added]

22. In relation to para. 4.3.1, the learned judge said:

“16. … I am satisfied that this particular task would fall to be described as a


‘simple job’. Nevertheless, there was a complete absence of any sort of method
statement, even a ‘standard sheet’. 4.3.2(h) [page 159] says that documents such
as:

‘the method statement … should be made available to all parties concerned in good
time.’”

23. Para. 4.3.1(a) should be read together with the following:

“4.5.2 Regular records on the safety conditions of the scaffolding should be kept.
Such records should consist of detailed information on work hazards, precautions
taken, accident analysis and recommendations and these records should be

4 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

constantly reviewed for hazard identification and improvement.

4.5.3 Workmen’s feedback on the safety conditions of the site should be


encouraged and as far as possible documented.”

24. The dismantling of a catch fence indeed may be relatively simple. But here, the relevant
catch fence was ‘drooping’. With respect, when the learned judge described the particular task
as a “simple job” he understated its potential danger. However, as the learned judge has
pointed out, there was not any ‘standard sheet’, much less one dealing with a drooping fence.
Moreover, para. 4.5.2 quoted above shows that condition of the scaffold should be kept under
constantly review.

25. The learned judge went on to say:

“16. … Regulation 6.2 which deals with dismantling of bamboo scaffolding [page
172] requires that this work should be done by trained workmen under the
immediate supervision of a ‘competent person’. 6.2.3 requires that the scaffold to
be dismantled should be checked for its strength and stability beforehand. 6.2.8
says that if the scaffold is defective it should be made good before dismantling
commences. 6.2.7 requires the dismantling sequence to be planned and that the
sequence of dismantling should be logical and determined with due consideration
for the scaffolders safety.

17. A ‘competent person’ referred to inter alia in 6.2 (supra.) is defined in 2.3 as
somebody of substantial training and practical experience. 2.3.2 indicates that such
a person is one:

‘(i) who has satisfactorily completed a formal training in bamboo


scaffolding work such as the 3-year Bamboo Scaffolder Apprenticeship
Scheme (under the Apprenticeship Ordinance, Cap.47) operated by the
Vocational Training Council or the 1-year full-time training course in
Bamboo Scaffolding of the Construction Industry Training Authority
(CITA), or other similar bamboo scaffolding training
courses/programmes, or has satisfactorily passed the Trade Test on
Bamboo Scaffolding of the CITA;

(ii) who has possessed an experience of 10 years or more in bamboo


scaffolding work (inclusive of experience under the formal training
period); and

(iii) who has the ability to read and understand the scaffolding plan,
design drawings, specifications and method statement of the scaffolding
work in order to competently supervise the scaffolding work and certify
that the scaffolding is in safe working order. He should also be capable
of identifying existing and predictable hazards in the surroundings or
working conditions that are unsanitary or hazardous to employees.

(b) A competent person should be appointed in writing and should have


authorisation to take prompt corrective measures to eliminate existing and
predictable hazards mentioned above.’

18. It is accepted that no such person was present. It is also worth observing that
2.4 refers to a trained workman who is defined as follows:

‘A trained workman in respect of bamboo scaffolding refers to a scaffolder who is


responsible for on-site erection, addition, alteration and dismantling of bamboo

5 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

scaffold under the immediate supervision of a competent person, and has


satisfactorily completed a formal training in bamboo scaffolding work equivalent to
any of those mentioned for a competent person and possessed at least 3 years of
experience in bamboo scaffolding work (inclusive of experience under the formal
training period).’

It strikes me that neither the Plaintiff nor Mr Lee conform to this definition because
neither had undertaken the formal training courses referred to in 2.3.2 supra. Both
had learned their trade under their Master. Be that as it may this aspect has not
been put in issue and so I propose to ignore it.

19. The parts of the Code of Practice to which I have made reference clearly
demonstrate the seriousness that is attached to the safety aspects of this
occupation and the work associated with it. In addition to which the Defendants
also face pleas that they failed to provide and maintain a safe system of work as
well as a failure to provide adequate and suitable plant, equipment and assistance
to ensure that the Plaintiff could carry out his work safely.

20. Notwithstanding this clear failure by the Defendants to provide a competent


person to oversee these operations nor a method plan of any sort the Defendants’
attitude to the allegations of negligence and statutory breaches is best reflected in
the evidence of Mr Yeung, the 1st Defendant’s foreman, who instructed the Plaintiff
and Mr Lee to carry out this work. His evidence, and I paraphrase it, is that both of
these workmen were highly experienced in this type of work, they had done it time
and again and they could very safely be left to their own devices. That attitude is
not one which is to be approved of as the authorities to which I will presently make
reference amply demonstrate.”

26. As for the defendants, the learned judge said:

“27. … Mr Yeung, the foreman’s evidence reveals a particularly laisse faire


attitude. The Plaintiff was very experienced — he could safely be left to his own
devices.

28. This evidence, in addition to the absence of a method plan and a competent
person who would undoubtedly have prohibited the Plaintiff from entering the hoist
frame to do this job serve to completely undermine the Defendant’s cases on
liability.”

27. After referring to the dicta of Lord Oaksey at 189-190 and Lord Reid at 193-194 in General
Cleaning Contractors Ld v Christmas [1953] AC 180, the learned judge concluded:

“30. It seems to me that these considerations are entirely applicable to the facts of
this case and they apply to both Defendants. The fact is that no system of work had
been laid out for these two men, let alone anything that approached a safe one.
Given his vast experience the Plaintiff had, it seems to me, developed this system
whereby he would get into the hoist frame and, relatively speaking, quickly snip the
fan off in one piece from the hoist frame. The dismantling would then be done on
the ground. It was quick. Unfortunately, it also produced a set of circumstances
that resulted in an accident waiting to happen which is what occurred on this
occasion. Had the 1st Defendant and the 2nd Defendant, as the principal
contractor, seen to it that the Code of Practice was adhered to this would not have
happened. A method would have been devised to dismantle the fan by cutting the
ties from outside the hoist by use of a working platform, as was eventually done
after the accident, in combination perhaps with a knife attached to a bamboo pole to

6 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

reach up where necessary. The process would undoubtedly have been a longer
one but it would have been a safe one. I find both Defendants liable in the ways
pleaded against them in the Statement of Claim. This being the case, I now need
to decide whether the Plaintiff ought to suffer a reduction in his damages by virtue
of any negligence on his part in going into the hoist frame.”

28. Then, after stating the law on contributory negligence set out in Charlesworth at 3-28, the
learned judge disposed of the issue of contributory negligence in one paragraph:

“32. The factual basis for this relates to the Plaintiff having entered the hoist frame
without jamming the door open and having put up a warning sign to the effect that
work was in progress in the hoist frame. The Plaintiff and Mr Lee say that they had
cordoned off the area with a couple of pedestrian barriers but in my judgment that
was wholly insufficient. It strikes me that in approaching the issue ‘by way of an
overall appreciation of [the Plaintiff’s] blameworthiness, taken with the causative
potency of whatever he did’ that he must bear half the blame for what happened to
him. There must therefore be a 50% discount for contributory negligence. It really
was asking for trouble to do what he did notwithstanding the Defendants’ failure to
provide any safe system of work. I am afraid that the Plaintiff must have realised
the risk that he was running and despite it all decided to take it simply because this
was the quick way of doing things.”

29. Earlier in his judgment, the learned judge had concluded that the plaintiff had not jammed
the door open. In our view, the learned judge was wrong to have regarded that as significant.

30. Even if the plaintiff had jammed the door, the hoist operator on returning from lunch, might
think that the door had been jammed by labourers to facilitate the loading or unloading of the
hoist. If so, he might have unjammed it and started the hoist. So ‘jamming’ the door was
hardly an adequate of proper safety measure.

31. That which is significant in our judgment, and a matter which, with respect, the learned
judge attached insufficient significance, was that the plaintiff should not have been left
personally to improvise.

32. On the facts it is quite clear that the defendants were totally unmindful of their obligations
as employer, or as contractor responsible for the Site, regarding the hazardous job of the
dismantling of scaffoldings, and a ‘drooping’ one at that.

33. The learned judge has referred to para. 6.2 of the Code, and noted that:

“… dismantling of bamboo scaffolding requires that this work should be done by


trained workmen under the immediate supervision of a ‘competent person’.”

34. There was no such competent person. The learned judge expressed doubt that the
plaintiff or Mr Lee could even be regarded as a “trained workman” under the Code, but even
assuming that they could be, there was flagrant disregard of para. 6.2. The Code was there to
protect workmen just like the plaintiff.

35. The learned judge said the evidence of the 2nd defendant’s foreman revealed “a
particularly laisse faire attitude”. With respect, we agree. They had completely ignored the
Code. The 1st defendant was no better. The plaintiff was sent to work or allowed to work
without the required supervision. The learned judge said had he been properly supervised,
there would have been no accident. Again we agree. The defendants simply left it to the
plaintiff to fend for himself. Mr Lee was no help, he was less experienced than the plaintiff.

7 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

36. Accordingly, having left the employee in such an unenviable position, the defendants then
claimed that the employee was guilty of contributory negligence because he had not fended for
himself well enough. Such a proposition has only to be stated to be rejected.

37. In Christmas, op. cit., a window cleaner was standing on a sill 6¼ inches wide outside one
of the windows, which had an automatic locking device on closing. Holding onto 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 meters 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. It was suggested that the accident might have been avoided if
the plaintiff had put in a block to prevent the bottom sash coming right down as it did. It was
held that in the circumstances there was no contributory negligence. The headnote neatly
summed up the position thus:

“In leaving it to the initiative of individual workmen to take precautions against a


common danger, the employers failed to discharge their duty.”

38. So even if the plaintiff could have been faulted for not jamming the door, we would not
regard that as contributory negligence. It is common sense that the requirement of a trained
supervisor to provide immediate supervision was to ensure that even trained workman is not left
to improvise. It should be noted that the supervisor was required to:

“… be capable of identifying existing and predictable hazards in the surroundings or


working conditions that are unsanitary or hazardous to employees.” Reg.
2.3.2(a)(iii)

39. In Christmas, at p. 187 Earl Jowitt quoted Denning LJ in the Court of Appeal as follows:

“… You cannot blame the man for not taking every precaution which prudence
would suggest. It is only too easy to be wise after the event. He was doing the work
in the way which the employers expected him to do it and, if they had taken proper
safeguards, the accident would not have happened.”

40. We are mindful of the limited basis upon which this court can interfere with a judge’s
apportionment of liability. See, for example, the judgment of Sir Thomas Eichelbaum NPJ in
Wishing Long Hong v Wong Kit Chun [2001] 4 HKCFAR 289 and Tsoi Yau-ya v Chan
Kwok-hung and Anor, unreported, CACV 317/2002, dated 24 April 2003.

41. Each case must depend on its own facts. Here we are concerned with the hazardous job
of scaffolders. As the Code shows, they were required to work under supervision of a qualified
supervisor. There was no qualified supervisor. The fact the plaintiff had 20 years of experience
as a scaffolder is irrelevant. He should not have been allowed to work unsupervised.

42. We have been referred to other authorities. But each case turns on its own facts, and it is
unhelpful to pay excessive attention to what happened in other cases under quite different
factual situations.

43. The facts in Mak Woon King and Anor v Wong Chiu [2000] 2 HKLRD 295 can be taken
from the headnotes:

“X was employed by D as a sawyer at D’s saw mill. As X was feeding a piece of


wood past a circular saw, a defect in the wood caused the wood to split. One part
came free and was flung backwards over the guard. It pierced X’s chest, causing
his death. The accident happened because the safety devices on the saw had not

8 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

been properly adjusted. The saw was under the immediate control of X, who was
responsible for making adjustments to the safety devices. D’s employees were paid
on a piece rate basis and this provided a temptation to adopt unsafe work practices,
in order to avoid restricting the flow of work. D had a dismissive attitude towards
safety. It gave no instructions as to safety, did not adequately supervise the work
and was aware that its employees were adopting unsafe practices. The Judge at
first instance found that D was liable for breach of his statutory duties concerning
the fencing of circular saws under reg.10(3) and (4) of the Factories and Industrial
Undertakings (Woodworking Machinery) Regulations (Cap.59, Sub.Leg.). He also
found that X was contributorily negligent to the extent of 40%, on the basis that he
was an experienced sawyer who must have been aware of the dangers; and he had
not made the necessary safety adjustments, thereby breaching reg.19, which
imposed such duties on employees using woodworking machines. Ps appealed
against the assessment of contributory negligence.”

44. Ribeiro JA (as he then was) said at 304:

“There is nothing in the present case to suggest that any attempt was made
by the employer to secure compliance with the statutory duty by the deceased or
that the deceased insisted on working in an unsafe manner in defiance of
instructions. On the contrary, the finding is that safety instructions were never given
and that the employees were, to the employer’s knowledge, left to work as they
pleased.

In such circumstances, bearing in mind the statutory objective of protecting


workers from their own lapses in a dangerous working environment, it is our view
that only a minor reduction for contributory negligence is justified. In our judgment,
such reduction should not have exceeded 15% on the Judge’s findings. We would
therefore allow the appeal on this first point, varying the Judge’s order so that the
award of damages be reduced by 15% for contributory negligence instead of by
40%.”

45. In that case, however, Ribeiro JA also cited the following from the judgment of Sachs LJ in
Mullard v Ben Line Steamers Ltd and Anor [1970] 1 WLR 1414 at page 1418 which we
regard as apposite here:

“To my mind, as indeed Mr Forrest conceded, the principle enunciated in the


passages [inter alia from the Stavely Iron and Chemical Co Ltd v Jones] cited
applies not only to assessing the question of liability - in other words, whether a
man is negligent - but also to assessing culpability - in other words, how one
apportions blame as between a plaintiff and a defendant, even if a plaintiff has been
held to overstep the boundary between inadvertence and negligence. …

What happened was indeed exactly of the nature intended to be guarded


against by the precautions prescribed by the regulations; and when a defendant’s
liability stems from such a breach the courts must be careful not to emasculate
those regulations by the side-wind of apportionment. Moreover, the more culpable
and continuing the breach of the regulation, the higher the percentage of blame
that must fall on the defendant.”

46. We also note the following dicta from Hutchinson v London & North Eastern Railway Co
[1942] 1 KB 481:

“I will call attention to one matter which is of great importance in dealing with the
breach of a statutory rule which is made as much to protect the men against their

9 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

carelessness as it is to protect men who are careful.” Per Lord Greene MR at p.485.

“… It is only too common to find in cases where the plaintiff alleges that a
defendant employer has been guilty of breach of a statutory duty, that a plea of
contributory negligence has been set up. In such a case I always directed myself to
be exceedingly chary of finding contributory negligence where the contributory
negligence alleged was the very thing which the statutory duty of the employer was
designed to prevent. The real incentive for the observance by employers of their
statutory duties … is not their liability to substantial fines, but the possibility of
heavy claims for damages. Such legislation would be nugatory if, in every case,
employers could disregard the statute, and allege that … the plaintiff could see the
danger and, therefore, ought to have ceased working, which in many cases might
mean dismissal, or to have taken some extra precaution which was not taken.” Per
Goddard LJ at p.488.

47. For the above reasons, in our judgment this is one of the rare cases where we feel able to
interfere with a finding of contributory negligence. On the facts of this case, no such finding
should have been made.

Quantum

48. The learned judge found that the plaintiff was earning $16,000 a month before the
accident. The learned judge held that he could not return to scaffolding. The question is what
multiplicand should be applied.

49. The learned judge said:

“42. I have been shown a Government generated list of jobs and pay. I would
have thought that these days the Plaintiff, who can more probably than not, read to
a basic level could work as a waiter, delivery man or general worker and on the
statistical evidence command a salary of, doing my best, $7,500 a month which will
be the basis of my assessment.”

50. But the same publication stated:

“4.7 Reliability of wage rates of individual occupations With a total sample size of
only 2 000 establishments in the wage enquiry of the LES (see paragraph 7.19 in
Part VII), the detailed statistics of wage rates by individual occupation by sex as
shown in Tables 7 to 10 are subject to relatively large estimation errors. These
wage rate statistics are therefore published for rough reference only and should
therefore be interpreted with caution.”

51. However, there was evidence that between January 2005 and 17 August 2006, a period of
19 months, the plaintiff had worked roughly for 15½ months with 4 different employees, as
cleaning worker, store keeper, casual worker, or delivery worker earning between
$4,000-$5,000 a month.

52. The learned judge did not deal with such evidence in his judgment. In our view there is no
reason why such evidence should not have been accepted. Having regard to the evidence of
the work he was able to obtain and what he was actually earning, we do not believe that the
learned judge was justified in placing total reliance on the government statistics to the
exclusion of evidence regarding what the plaintiff actually had been earning.

53. That being the case, we believe that we should adopt $11,000 as the multiplicand. The
award for loss of future earnings thus should be:

10 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

$11,000 x 12 x 6.5 years $858,000


5% MPF $42,900
Total $900,900
The learned judge
($696,150)
awarded
The difference $204,750

54. As for loss of earnings from the expiry of sick leave, a period of 38 months during which,
as we have said, he had worked for 15½ months earning a total of $66,750, Mr Pang rightly
accepted that it would be reasonable to proceed on the basis that the plaintiff could have
earned $5,000 a month. On that basis, therefore, the award should as follows:

$16,000 x 38 $608,000.00
Actually earned ($66,750.00)
$541,250.00
Add 5% MPF $27,062.50
$568,312.50

Deduct amount awarded $323,000.00


by the learned judge (5% MPF) + $16,150.00 ($339,150.00)
Difference $229,162.50

55. The other items of the compensation assessed by the learned judge have not been
challenged. Accordingly, items (iii) to (vi) in the learned judge’s calculation will be revised as
follows:

Loss of earnings from expiry of sick leave to


(iii) $541,250.00
trial
(iv) MPF at 5% on (ii) (i.e. $16,000 x 14 months
= $224,000.00) and (iii) above $38,262.50
( v
Future loss of earnings $858,000.00
)
(vi) MPF on ( v ) $42,900.00

56. In the circumstances, therefore, we would allow the appeal, and hold that there was no
contributory negligence.

57. The amount of damages to be awarded, in accordance with the above calculations,
together with the other unchallenged figures, this will be $1,969,412.50, from which the
employee’s compensation award of $177,080 should be deducted. Thus the amount payable
by the defendants to the plaintiff will be $1,792,332.50, with interest as follows:

“(i) 2% on general damages from writ to judgment.

(ii) ½ judgment rate from date of accident to date of judgment on special


damages and accrued loss of earnings.”

The costs of the appeal

58. The defendants are to pay the plaintiff’s costs of the appeal. The plaintiff’s costs, if not
agreed, to be taxed in accordance with Legal Aid Regulations.

11 of 12 20/11/2008 22:22
LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., L... http://www.hklii.hk/cgi-hklii/disp.pl/hk/jud/eng/hkca/2008/CACV000...

(Robert Tang) (D. Yam ) (William Stone)


Vice-President Judge of the Court of First Judge of the Court of First
Instance Instance

Mr. Robert Y. H. Pang, instructed by Messrs Christine M. Koo & Ip, assigned by Director of
Legal Aid, for the Plaintiff.

Mr. Patrick D. Lim, instructed by Messrs Krishnan & Tsang, for the Defendants.

12 of 12 20/11/2008 22:22