Widsom Newsletter - Personal Injury (Issue 31)

Personal Injury

A COMMON INDUSTRIAL ACCIDENT WITH VALUABLE INSIGHTS FOR EMPLOYERS

Lau Ting Keung (P) v. Chan Wai Ying trading as Wai Shun Engineering Co. (D1) and Kin Shing (Leung’s) General Contractors Limited (D2), HCPI No. 284 of 2015, Deputy High Court Judge Keith Yeung SC, 18 April 2019.

This is a PI claim by an experienced welding worker who fell from an A-shape ladder and suffered injury at work. D2 was the main contractor of the construction site where P met the accident. D1 was P’s employer. P claimed for damages against D1 and D2 on the grounds that, inter alia, they failed to provide a safe working platform for P to work at height and to ensure that the ladder was safe to use. It was alleged that D1 and D2 were accordingly in breach of Regulations 38B, 38C and 38D of Construction Sites (Safety) Regulations (Cap. 59I).

 Fact

In this case, the dispute over liability turned on (1) how the accident took place and (2) the suitability of the use of the ladder at the time of the accident.

P’s pleaded case was that he was instructed to conduct dismantlement work in a fire pump room at the construction site with a co-worker. There was no safety platform in the fire pump room. D1 instructed him to use an A-shape ladder which was allegedly unstable and unsafe. Although D1 asked the co-worker to hold the ladder steady when he was on the ladder, D1 had in the afternoon told P to work on his own without the co-worker’s assistance.

D1 denied that he had instructed P to work on his own without the co-worker’s assistance. In the record of interview, P confirmed that the ladder used did not have any problem or irregularity. As the floor of the fire pump room had pumps and pipes, there was no safe place to set up a working platform. A risk assessment was conducted by D2’s safety officer. The assessment result was to recommend the use of the ladder to gain height and the ladder had to be held by someone before work could be done.

Judgment

The Learned Judge did not find P to be a credible witness. He could not tell the Court how and why the accident occurred. He did not even recall from which step of the ladder he fell. In his supplemental witness statement, P for the first time alleged that the ladder was unstable and unsafe, which was inconsistent with what he said in the record of interview. His Lordship did not accept that the content of the record of interview was not completely true because P was suffering from severe headache and dizziness during the interview. P ought to understand the importance of the interview. It was difficult to accept that P would have agreed to continue if he was indeed in the state he described.

The Court, on the other hand, found D1 to be a credible witness. His evidence was not contradicted in any material aspect. His Lordship refused to draw an adverse inference against Ds for not calling the co-worker to give evidence. D1 had not been silent and an explanation had been given as to why the co-worker was not called.

When deciding whether the ladder could safely be used, the Learned Judge was of the view that the nature of work which P had to undertake and the nature of the ladder were the two main areas that needed to be considered. His Lordship found that in P’s evidence, the exact nature of P’s work and the height he had to reach were unclear. The burden was on P to prove that the ladder was unsafe in light of the height he had to reach and the work he had to undertake. P had failed to so.

Lastly, the Court accepted that under Regulation 38C of Cap 59I, a ladder could be used so long as its use was safe for the purpose having regard to the work to be done. D1’s evidence suggested that it was not inappropriate to use the ladder inside the pump room. Indeed, there was no safe place to set up a working platform in the pump room, and the system that D1 instructed P to follow was recommended by the safety officer employed by D1 after risk assessment. In the absence of any expert evidence from P which suggested that the use of the ladder inside the pump room was inappropriate or otherwise unsafe, P had failed to establish his case as framed. Accordingly, P’s case was dismissed.

Comments 

This case has conveyed several important messages to employers. It is not uncommon that by the time the proceedings commence, a co-worker who can be a useful witness to an employer may have already left the company. It is important, however, that an explanation for not calling that witness be given in order to avoid an adverse inference be drawn against the employer. Practical steps should be taken to try to locate that co-worker. Also, it is always useful to keep a proper record of the risk assessment conducted at the construction site. As seen in the present case, it can be a powerful shield against a claim of unsafe system / method of work.

Furthermore, it is of paramount importance for the defence to take a statement from the injured employee shortly after the accident. The version of statement given by the injured employee at the start has been repeatedly proven to be more reliable than he or she gives in the course of the legal proceedings. The preliminary statement may even serve as a leverage to push for a good settlement without the need to go through the entire trial.