CHENG YUK CHUN v. WINSON CLEANING SERVICE COMPANY LIMITED & OTHERS DCPI 629/2006

S’s words:-
This is a slipped and fell case of which the Plaintiff fell and injured in the Staircase that the 2nd and 3rd Defendants were the occupiers and the 1st Defendant being the management company.
The Plaintiff failed her claim due to the fact that the Court was not convinced that the accident was taken place as she did have mentioned.
However, if the accident happened due to the oily and slippery condition of the Staircase, the Judge did have expressed his view that the 1st Defendant (but not the 2nd and 3rd Defendants) would be wholly liable for the accident.
The issue of contributory negligence (if found the 1st Defendant being liable due to the oily and slippery condition) was also considered. Ng Siu Cho v the Incorporated Owners of Jardine Court, unrep., DCPI 976/2005, 6/7/2006’s case was relied on but the Court took the view that the Plaintiff could have done much to avoid the risk of slipping on the Staircase when having to understandably hurry with her work.
So, we have to be careful as to how to distinguish Ng Siu Cho’s case (if for the Plaintiff) or rely on Ng Siu Cho’s case (if for the Defendant) in future. The first version of how the accident being taken place given by the Plaintiff is critical.

---

Date of handing down judgment : 6 July 2007

"In this action, the 43-year-old lady cleaner claims against the Defendants for personal injuries sustained during work in 2004. At the material time, the 1st Defendant was her employer. The 2nd Defendant was the management company of the property which contracted the 1st Defendant for cleaning service. The 3rd Defendant was the owners’ incorporation of the property.

It was part of her morning routine to collect the garbage from the back staircases of each floor of the Block. She would put the garbage into one of the wastebaskets, which she brought for such purpose, and then move the basket of garbage to the Ground Floor. The garbage collected would be centralised on the Ground Floor and would be collected by a garbage truck.

The Plaintiff started work at about 7:00 am that day. At about 7:45 am, she started collecting garbage from the 29th Floor of the Block downwards floor by floor. At about 8:30 am, she was moving a basket filled with garbage and descending along the staircase from the 6th to the 5th Floor (“the Staircase”). In the course of that, she fell and injured, among other parts, her right wrist.

The Plaintiff claims against the 1st Defendant for breach of the implied contractual duty of employer. She claims against the 2nd and the 3rd Defendants as the occupiers of the scene of the accident. Against all Defendants, the Plaintiff also alleges breach of statutory duties as well as the general duty not to be negligent.

Except for the alleged statutory duties on the part of the 2nd and the 3rd Defendant, the existence of the various kinds of duty on the respective parties was not in real dispute. The dispute was essentially whether any of them was in breach and whether the accident was contributed to by the Plaintiff’s own negligence.

Nevertheless, considering all the evidence including those specifically analysed above, I am not satisfied that the Plaintiff fell because she slipped on wet or oily surface of the Staircase at the material time. I find Mr. Chan, the occupational safety officer, to be a reliable witness. I find that on the balance of probabilities, the accident did happen in the way as Plaintiff told him and was recorded in her declaration and the accident report.

In view of my finding of how the Plaintiff came to fall on the Staircase, there is really no sufficient factual basis for finding fault in the 1st Defendant’s system of work.

The 2nd and the 3rd Defendant, which were undeniably occupiers of the staircase, should not be to blame either in the circumstances.

Assuming breach
For completeness, I proceed to consider whether any of the Defendants should be liable and the apportionment of liability if I am wrong above. In other words, what if the accident happened due to the oily and slippery condition of the Staircase at the time as alleged.

Mr. Cheung for the 1st Defendant submitted, and I agree, that the 1st Defendant should not be liable for the accident to the extent as being caused by some known and ordinary risk in the course of the Plaintiff’s carrying out her basically simple and routine duty in this case. The cases of Mawson v Unilever [1963] 2 Lloyd’s Rep. 198, Winter v Cardiff Rural District Council [1950] 1 All ER 819 and Cheung Suk Wai v AG [1996] HKC 288 illustrate this. This however would not have addressed all the Plaintiff’s allegations.

I mentioned above the Plaintiff’s complaint about having to work under great time pressure. The garbage removal should be completed by 9:00 am as specified by the service contract between the 1st and the 2nd Defendant. The garbage truck would first stop by the Block at about 9:00-9:30 am to collect the garbage before proceeding down slope to the other blocks of the Estate. She had effectively less than 2 hours to remove all the garbage from the 29 floors of the Block by herself. She also explained her experience of having missed the truck. Not calling any witness at the trial, the 1st Defendant had nothing to effectively contradict this part of the Plaintiff’s evidence. Though there was dispute over whether the Plaintiff could have used the residents’ lift, it sounds credible that priority had to be given to residents during the morning rush hours which were indeed the hours of the Plaintiff’s work. The Plaintiff effectively had to hurry with her work along the Staircase by herself. Unlike Cheung Suk Wai, the Plaintiff had to work under a tight time schedule and would not really have been in a position to regulate her own pace and to decide her manner of work. This effectively deprived her of real alternative to avoid the risk of slipping and falling due to the condition of the Staircase.

Therefore, had I found that the accident was caused by the alleged wet and slippery condition of the Staircase; I would have found the 1st Defendant liable.

The Plaintiff was not a mere outside visitor to the Staircase but the very servant of the 1st Defendant responsible for cleaning it. She did admit in her evidence that she was responsible for cleaning the Staircase in question after collecting the garbage. There was no evidence to support that the risk associated with the condition of the Staircase was so exceptional that it was not reasonably incidental to the Plaintiff’s cleaning work. I agree with Mr. Gidwani that the 2nd and the 3rd Defendants could have justifiably relied on section 3(3)(b) of the Occupier’s Liability Ordinance, Cap. 314 in respect of the discharge of their common duty of care.

Even if the 2nd or the 3rd Defendant was somehow liable to the Plaintiff, I am of the view that the ultimate responsibility should in the circumstances still have lied with the 1st Defendant. The 2nd and the 3rd Defendants would have been entitled to full indemnity from the 1st Defendant against any of their liabilities to the Plaintiff due to the accident.

Contributory negligence
Mr. Gidwani for the 2nd and the 3rd Defendants submitted that contributory negligence in this case should be 25%, referring to the case of Ng Siu Cho v the Incorporated Owners of Jardine Court, unrep., DCPI 976/2005, 6/7/2006. I assume that Mr. Cheung for the 1st Defendant adopted that submission. I do not see that the Plaintiff could have done much to avoid the risk of slipping on the Staircase (which is assumed to be wet and slippery) when having to understandably hurry with her work. The circumstances simply differ from those in Ng Siu Cho. I would have found no contributory negligence."