WONG YAT CHIU v. CHAN KWOK WA AND OTHERS

WONG YAT CHIU v. CHAN KWOK WA AND OTHERS

The proximate cause of the accident was the defective method of rigging (canvas-to-canvas abrasion and side pull) executed by Gammon workers under inadequate supervision; Gammon and KSF breached duties to supervise and train and are vicariously liable; Fei Kow breached a non-delegable duty to provide a safe system for its operator (Wong) but did not cause the sling failure; s.25 Cap.282 construed as an indemnity provision cannot be used by an employer to recover from a third party where the employer is itself at fault; contractual indemnities were construed: Clause 12 would have indemnified Gammon except where Gammon was solely negligent and on the facts the proviso operated to defeat...

Citation
WONG YAT CHIU v. CHAN KWOK WA AND OTHERS
Parties
Plaintiff (pi 1289/97); 1st Defendant (hca 7939/97): WONG YAT CHIU; 1st Defendant (pi 1289/97); 2nd Defendant (hca 7939/97): CHAN KWOK WA and CHAN KWOK WAN t/a FEI KOW TRANSPORTATION COMPANY; 2nd Defendant (pi 1289/97); Plaintiff (hca 7939/97): GAMMON CONSTRUCTION LIMITED; 3rd Defendant (pi 1289/97): KIER HONG KONG LIMITED and SUNG FOO KEE (CIVIL) LIMITED t/a KIER-SUN FOOK KONG JOINT VENTURE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 July 1999
Case Number
HCPI1289/1997
Procedural Posture
Consolidated Actions: Personal Injuries (pi 1289/97) and Indemnity/contract Claim (hca 7939/97) / Judgment on Liability After Trial (liability Only Trial)
Outcome
PI 1289/97: judgment for plaintiff Wong on liability against Gammon, KSF and Fei Kow; primary fault attributed to Gammon and KSF (apportioned equally). HCA 7939/97: Gammon's claims for indemnity against Fei Kow dismissed on statutory and contractual grounds; judgment for defendants in HCA 7939/97.
Legal Topics
Vicarious Liability, Contributory Negligence, Statutory Indemnity Under Employees Compensation Ordinance S.25, Interpretation of Contractual Indemnity Clauses, Non Delegable Duty to Provide Safe System of Work, Apportionment Between Defendants, Rigging and Lifting Gear Safety
Source Language
EN
Tort (negligence) Contract Law (hire Agreement and Indemnity) Statutory Indemnity/workers Compensation Health and Safety/regulatory Compliance Vicarious Liability Contributory Negligence Statutory Indemnity Under Employees Compensation Ordinance S.25 Interpretation of Contractual Indemnity Clauses +3 more

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Parties

WONG YAT CHIU

Plaintiff (pi 1289/97); 1st Defendant (hca 7939/97)

CHAN KWOK WA and CHAN KWOK WAN t/a FEI KOW TRANSPORTATION COMPANY

1st Defendant (pi 1289/97); 2nd Defendant (hca 7939/97)

GAMMON CONSTRUCTION LIMITED

2nd Defendant (pi 1289/97); Plaintiff (hca 7939/97)

KIER HONG KONG LIMITED and SUNG FOO KEE (CIVIL) LIMITED t/a KIER-SUN FOOK KONG JOINT VENTURE

3rd Defendant (pi 1289/97)

Procedural Posture

Consolidated Actions: Personal Injuries (pi 1289/97) and Indemnity/contract Claim (hca 7939/97) / Judgment on Liability After Trial (liability Only Trial)

Legal Issues

  1. 1 Whether canvas slings or method of rigging caused the accident
  2. 2 Negligence and breach of statutory duties by Gammon, KSF and Fei Kow
  3. 3 Whether employer Gammon can recover under s.25 Employees Compensation Ordinance from third parties when employer was also at fault

Ratio Decidendi

The proximate cause of the accident was the defective method of rigging (canvas-to-canvas abrasion and side pull) executed by Gammon workers under inadequate supervision; Gammon and KSF breached duties to supervise and train and are vicariously liable; Fei Kow breached a non-delegable duty to provide a safe system for its operator (Wong) but did not cause the sling failure; s.25 Cap.282 construed as an indemnity provision cannot be used by an employer to recover from a third party where the employer is itself at fault; contractual indemnities were construed: Clause 12 would have indemnified Gammon except where Gammon was solely negligent and on the facts the proviso operated to defeat...

Court Disposition

PI 1289/97: judgment for plaintiff Wong on liability against Gammon, KSF and Fei Kow; primary fault attributed to Gammon and KSF (apportioned equally). HCA 7939/97: Gammon's claims for indemnity against Fei Kow dismissed on statutory and contractual grounds; judgment for defendants in HCA 7939/97.

Orders

  • PI 1289/97: costs nisi to the Plaintiff to be taxed at the Legal Aid rate if not agreed
  • HCA 7939/97: costs nisi to the Second Defendant as against the Plaintiff to be taxed if not agreed