Personal Injuries — Both High Court and District Court recently find claimants unable to prove liability in an industrial accident and a commercial premises slip-and-fall accident respectively
Personal Injuries
Imran case – an industrial accident
In Imran v Intrafor Hong Kong Limited [2023] HKCFI 2032, the Defendant successfully contested the claim of the Plaintiff who was its employee and alleged to have suffered an industrial accident when he worked in a construction site in 2019. The Plaintiff was involved to conduct ground drilling work by using a Standard Penetration Test hammer to be fixed to a drill casing of a drill rig machine. The operation involved first attaching the head of the hammer to the drill rig machine by a hoisting rope/wire. The operator would operate the drill rig machine to hoist the hammer by its head up and vertically to where it would be fixed to the drill casing. To keep the hammer stable without swinging while hoisted above the ground, the Plaintiff would stray a canvas band around the tail of the hammer, and then hold the two ends of the band with his hands to guide the tail while it was being hoisted. The Plaintiff alleged that while doing so, the canvas band which he strapped around the hammer tail came off causing him to lose balance and fall.
The High Court found that there was no suggestion or independent evidence that the manner of keeping steady the hammer tail by way of strapping the canvas band around it was not reasonably safe. Nor was there evidence to suggest any risk that the canvas band would come off the hammer tail easily or suddenly. Further, the Plaintiff was responsible for strapping the canvas band around the hammer. The Court found no breach of duty on the part of the Defendant, and dismissed the Plaintiff’s claim with costs.
Read the judgment here.
Yen Peter Pak Van: a slip-and-fall accident
In Yen Peter Pak Van v Nisilk Limited & Anor [2023] HKDC 1445, the Plaintiff slipped and fell on a flight of staircase inside a commercial building. He complained that the treads of the subject staircase were too short; and there was a lack of colour contrast between different treads of the staircase, so it was difficult for him to distinguish one tread from another. At trial, the Plaintiff relied on certain publications which advised certain best practices in design consideration of staircases, and contended that the design and construction of the staircase was in breach of those rules and fell below a reasonable standard.
The District Court found that the staircase was designed by architects, certified to be safe, and the design was well approved by the Building Authority. Even though the treads might not be enough to accommodate the length of the Plaintiff’s feet, they were wider than the statutory requirement, and common experience tells that people are able to walk safely up and down a staircase with part of their soles outside the treads. The Court further emphasised that it is one thing to lay down better standards, but another thing to define what is reasonably safe in a particular case. In the circumstances of the case, there was nothing to suggest that the Defendants ought to have done something more to see the visitors would be reasonably safe.
As to the complaint about colour contrast making the Plaintiff unable to see the treads clearly, the Court agreed that it was a non-starter, as the Plaintiff accepted under cross-examination that he did not even look at the steps before he fell. Hence, the presence or absence of colour contrast was irrelevant to his slip. Accordingly, the Court found no breach of duty on the part of the Defendants, and dismissed the Plaintiff’s claim with costs.
Read the judgment here.
Take-away
The above cases illustrate a well-established principle: the occurrence of an accident alone is insufficient to prove negligence on the part of the defendant. The claimant must demonstrate that the accident resulted from a breach of duty by the defendant. It is important to approach this question with caution, avoiding the use of hindsight. When considering methods or systems that could have been employed, the key inquiry should be whether it was reasonable for the defendant to implement the measures that were adopted or not to implement those that were not, but not whether it would have been better had certain measures been taken.
Simon Wong, instructed by Deacons, acted for the successful Defendant in Imran, and instructed by Winnie Leung & Co, acted for the successful Defendants in Yan Peter Pak Van.
Simon Wong
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Simon is qualified to practise law both in Hong Kong and California USA. He specializes in personal injury litigation and commercial dispute resolution. In his personal injury practice, he has been instructed in more than 500 personal injury and medical negligence cases and has extensive experience in representing claimants as well as defendants. Simon’s commercial litigation experience includes company matters, shareholders’ disputes, banking disputes, insolvency matter and contract claims.
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This article was first published on 19 October 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.