Wong Tang Keung v Lee Wai Engineering
Court of Appeal
Civil Appeal No 165 of 2012
Yuen, Chu and Lam JJA
Personal Injury
25 April, 13 May 2013

Falling from wooden ladder while fixing ceiling light — failure by employer to properly supervise — loss of earning capacity

In 2004, the plaintiff, a 61-year-old plumber/electrician, (“P”) and employed by the first defendant (“D1”), was injured while stationed at a shopping centre (the “Plaza”) managed by the second defendant (“D2”). P was assigned to attend to a faulty ceiling fluorescent tube above an escalator. He then fell from the ladder during the repair work. P resumed work for D1 in 2005 upon recovery. The next year, D1 terminated P’s contract.

Despite registering with the Labour Department, P could not find another job as he could not lift heavy objects and had no other skills or experience. He then sued Ds for negligence and breach of the Occupational Safety and Health Ordinance (Cap. 509) and the Occupiers Liability Ordinance (Cap. 314).

The judge in the lower court held that D1 had failed to provide a safe system of work and adequate supervision. P was held 50% contributorily negligent in inter alia misjudging the potential risk of injury and using the wrong method for the repair work. Further, P was refused damages for loss of earning capacity on the ground that, at 67, he was beyond retirement age at the time of trial. P appealed, arguing partly that he was entitled for loss of earning capacity for the period between his termination and the age of 65.

Held, that, inter alia:

The primary cause of the accident was D1’s failure to properly supervise P, and D1’s breach of statutory duty. However, as P carried out the works wrongly for the sake of convenience, he was contributorily negligent. But the apportionment of 50% for contributory negligence far exceeded the reasonable range, and should be replaced with 25% instead.

It was too late for P to claim for the first time on appeal loss of earnings between termination and the retirement age of 65. Still, the judge had failed to consider the loss P suffered before he had reached 65. As he was almost 63 years old when he lost his job, even if he had been not injured, his competitiveness was very limited. Thus, an award of HK$72,000, equivalent to six months’ earnings was made for pre-trial loss of earning capacity.

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