Tsang Wai Hung v. Trustful Engineering & Construction Company Ltd and Others

Case No.HCPI 30/2015

Court

High Court CFI

Date23 Jan 2017

Judge—

Case Document

100%Judiciary

HCPI 30/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 30 OF 2015

______________

BETWEEN
	TSANG WAI HUNG	Plaintiff
	and
	TRUSTFUL ENGINEERING & CONSTRUCTION COMPANY LIMITED	1st Defendant
	LEUNG KAN and TO KWAI CHUEN	2nd Defendant
	trading as YING YIU ENGINEERING COMPANY
	邱亞細	3rd Defendant

______________

Before: Deputy High Court Judge Patrick Fung SC in Court

Dates of Hearing: 7-9 and 12-14 December 2016

Date of Handing Down Judgment: 23 January 2017

________________________________

J U D G M E N T

________________________________

1.This is an action by the Plaintiff against the 3 Defendants for damages for negligence and/or breach of statutory duties arising out of an accident during which he was injured by electrocution whilst working on a gondola in mid-air outside a building which was under renovation.

BACKGROUND FACTS

2.The building in question was known as “Prince Industrial Building, 106 King Fuk Street, San Po Kong, Kowloon, Hong Kong” (“the Building”).

3.In or about 2011, the 1^st Defendant was appointed as the main contractor for the renovation of the Building (“the Renovation Works”). The 1^st Defendant then appointed the 2^nd Defendant firm as its sub‑contractor in the Renovation Works. As far as I am aware, the sub‑contract agreement between the 1^st Defendant and the 2^nd Defendant has not been produced in these proceedings.

4.By a one-page sub‑contract agreement written in the Chinese language, made between the 2^nd Defendant and the 3^rd Defendant and dated 22 July 2011, the former appointed the latter as its sub‑contractor to carry out the following works :

“C:  乙方責任: 乙方負責工程摘要（根據標書內所述各項目完成工程）。

C1:  預備工程

C2:  大廈外牆混凝土修補工程

C3:  外牆翻新工程

C4:  其他項目

C5:  安裝冷氣機冷凝水去水喉”

It can be seen that the works included the renovation of the external walls of the Building.

5.By another one‑page sub‑contract agreement written in the Chinese language, made between the 3^rd Defendant and the Plaintiff and dated 11 August 2011, the former appointed the latter to be his sub‑contractor to carry out certain aspects of work in the Renovation Works. As will be seen later, the scope of the work under this sub-contract agreement is not relevant for present purposes.

6.Originally, the Plaintiff alleged that he was an employee of all the 3 Defendants. At the commencement of the trial, I was informed that he no longer maintained such allegation and that he would pursue his claim on the basis that he was a sub‑contractor of the 3^rd Defendant.

7.At this juncture, it is to be noted that all the 3 Defendants are acting by one set of lawyers and they have filed a Defence jointly against the Plaintiff. There thus appears to be no conflict of interests amongst the Defendants.

8.It is common ground that by the time of the accident which occurred on 6 August 2012, the Plaintiff had finished all the work under the sub‑contract agreement between the 3^rd Defendant and himself and that he had begun doing other work in relation to the Building as the 3^rd Defendant’s sub‑contractor on the basis of a new agreement made orally.

THE ACCIDENT

9.One aspect of the work which the Plaintiff had agreed to do for the 3^rd Defendant on the basis of the said oral agreement was to clear the debris from the face of the external wall of the Building on the side facing King Fuk Street and to apply sealant to the windows on that wall.

10.The Plaintiff gave an account of how the accident occurred on 6 August 2012 in paragraphs 12‑18 of his Witness Statement dated 14 September 2015. The English translation of the same reads as follows:-

“III. The Accident

12.  At 8:30 am on 6^th August 2012, I attended to the Building to work as usual.

13.  Pursuant to the instructions of the 2^nd and 3^rd Defendants, I carried out window sealing work and clearance work with another colleague Tsang Kam Fook. We had to stand on a gondola outside the external wall of the Building (‘the Gondola’) to carry out the window sealing work and clearance work.

14.  We started the window sealing work and clearance work from the 25^th floor of the Building and worked downward to the bottom floor.

15.  At around 10:30 am, we were standing on the Gondola to carry out the window sealing work on the 6^th floor. At that time there was a wire hanging from a window on the 7^th floor and it extended to the canopy and the podium on the 5^th floor. That wire hanged from the temporary office of Yau Ah Sai for the convenience of the welding work below.

16.  At that time I extended my right arm to hold onto the window frame on the external wall and intended to pull the Gondola closer to the window frame for the convenience of the sealing work. My right forearm came into contact with the rail of the Gondola. Since the rail of the Gondola was made of metal, I suddenly got electric shock and heard a sparkling noise. Then I immediately got dizziness and blurred vision. After the electric shock, I withstood the pain and assisted Tsang Kam Fook to control the Gondola. Tsang Kam Fook continued with the remaining work until we returned to the podium on the 5^th floor.

17.  Upon returning to the podium on the 5^th floor, I found that my right middle finger got blister and my right forearm was bruised. At the same time, I also found that the protective plastic of the electric wire was damages and the copper wire inside was not properly wrapped by the protective plastic. The contact position between the electric wire and canopy was charred. Since the electric wire and canopy was connected, and the canopy and metal wire of the Gondola was also in contact, I got electric shock once my right arm came into contact with rail of the Gondola when the electric wire was damaged with leaked current.

18.  Since I felt that my right arm was very painful, my right middle finger was blistered and my right forearm was charred, I immediately informed the 3^rd Defendant. Then I went to the Accident & Emergency Department of Kwong Wah Hospital in the afternoon of the date of accident.”

11.“Yau Ah Sai” referred to in paragraph 15 of the Plaintiff’s Witness Statement is the 3^rd Defendant. The 3^rd Defendant and Tsang Kam Fook (referred to in paragraph 13 of the Plaintiff’s Witness Statement) are the only two witnesses called on behalf of the Defendants.

12.As I view the evidence, the above description of how the accident occurred is by and large agreed between the parties as a general description, subject to certain revisions and amendments by the Plaintiff himself and subject to disagreement by the Defendants on some important points. I shall deal with them when I come to analyse the evidence below.

THE PLAINTIFF’S HISTORY

13.According to the Plaintiff’s Witness Statement, at the time of the accident, he was aged 53 years. He received education in the Mainland up to Form 2 in secondary school. He is a right hander. Between 1974 and 1978, he was working as a farmer in the Mainland. He came to Hong Kong in 1978 and started working as a metal worker earning $4,000 per month. In about 1980, he started working as a general labourer on building sites earning between $160‑170 per day. In 1985, he started working as a plasterer and working on gondolas. He worked sometimes as an employee and sometimes as a sub‑contractor.

14.Such evidence has not been disputed by the Defendants.

THE EVIDENCE ON LIABILITY

The Plaintiff

15.The Plaintiff was the only witness for himself.

16.He described the occurrence of the accident as set out below. By reference to one of the photographs which he took some 10 odd days after the accident which shows the side of the Building facing King Fuk Street, he showed with a red line coming out from one of the windows on the left on the 7^th floor the path of the electric cable (“the Electric Cable”) coming out from that window and leading all the way down to the floor of the podium on the 5^th floor whilst touching the edge of the metal canopy (“the Canopy”) between the 5^th and the 6^th floors at the time of the accident. He also showed by marking in green the position of his gondola just outside 2 windows in the middle section on the 6^th floor at the time of the accident. That photograph with his markings is marked as Exhibit P1. Exhibit P1 also consists of a 2^nd photograph showing an electric cable.

17.The Plaintiff produced another one of his photographs in the same batch showing the actual gondola used at the time of the accident. He pointed out and marked the 4 steel wires (2 on each side) which were used to hold up the gondola and enabled it to move up and down. That photograph is marked as Exhibit P2.

18.By using another one of his photographs (marked as Exhibit P3), the Plaintiff showed how two wooden planks were tied to the inner side of the gondola which could be slanted out for the purpose of catching and channelling the debris scraped from the face of the external wall into the gondola rather than letting it fall down to the top of the Canopy.

19.The Plaintiff said that he and Tsang Kam Fook first took the gondola from the 5^th floor up to the top of the Building and then came down again gradually stopping at various floors to do their work. He was aware of the existence of the Electric Cable coming out of the window on the 7^th floor but did not know whether it was live or not. When he got down to the 6^th floor level, his right arm touched the railing of the gondola and he felt that he had received an electric shock. He shouted out. The 3^rd Defendant who was standing some distance away on the podium on the 5^th floor heard his shout and ran over to fling away the Electric Cable. The electric shock then ceased. He said his right arm was stuck to the railing for about 10 seconds (later changed to 6 or 7 seconds) because of the electric current. He also marked on Exhibit P1 the position of the 3^rd Defendant just before the accident. He pointed out from one of the photographs taken by him and included in the Trial Bundles a burnt mark at a spot on the edge of the Canopy after he had got down from the gondola. That burnt mark was not there when he and Tsang Kam Fook first went up to the gondola to work that morning.

20.The Plaintiff was asked by the Court whether the Electric Cable was in contact with the gondola at all when he received the electric shock. He replied and said that if the Electric Cable was not then in contact with the gondola, the electricity must have escaped through the Electric Cable into the Canopy and then through the steel wires holding up the gondola (which would have been in contact with the Canopy) and onto the gondola and its railings.

21.The Plaintiff was cross‑examined in considerable detail by Mr Eric Tsoi, Counsel for the Defendants. He was asked whether he agreed that the Electric Cable was hanging down from the 7^th floor window loosely rather than being taut. The Plaintiff agreed. He was asked about the width of the wooden planks slanting out from the side of the gondola and he said that they were just over one foot wide, about the height of a box file. It was put to him that he could not have seen sparks. He was asked whether he could see any damage to the Electric Cable. The Plaintiff referred to the second photograph in Exhibit P1 showing a cable which was the only one in the storeroom when he took the photographs. He identified it as the Electric Cable and said that it did show some damage in the plastic cover at one end.

22.It was suggested by Mr Tsoi to the Plaintiff that he kept the wooden planks in a slanting out position as the gondola was descending and that somehow the Electric Cable got caught between the wooden planks and the external wall and was damaged so that there was an escape of the electric current.

23.In the course of his cross‑examination, the Plaintiff said that he might not have done his markings in Exhibit P1 accurately and that he wished to revise his evidence. He was given another photograph taken by himself on which he marked the position of the gondola at the same height as previously but with a greater length, stretching across 3 windows as opposed to 2 windows. He also re‑drew the path of the Electric Cable so as to show that it was actually in contact with the left side of the gondola.

24.The Plaintiff was cross‑examined as to his inconsistency in saying at one point that the Electric Cable did not touch the gondola and at another point that it did. He said that it was so long ago that he could not actually remember.

25.So much for the evidence of the Plaintiff.

Tsang Kam Fook

26.He was called as a witness for the Defence. He said in evidence that he could not read. In cross‑examination, he was shown Exhibit P1 and he said that the Electric Cable which came out of the 7^th floor window ran along the path of the red line in that photograph. He also confirmed that the burnt mark on the edge of the Canopy was not there when he and the Plaintiff ascended on the gondola in the morning of the accident but he noticed it when he got down from the gondola after the accident. He was asked what caused the burnt mark. He said that it was caused by the damaged Electric Cable coming into control with that part of the Canopy. He confirmed that the Plaintiff received an electric shock on the gondola and he yelled out. He also confirmed that the 3^rd Defendant was on the 5^th floor podium and that the 3^rd Defendant pulled away the Electric Cable, although he did not actually see him do it. He further confirmed that the gondola was equipped with a circuit breaker and that it did not trip that day.

27.Tsang Kam Fook was then re‑examined by Mr Tsoi. He said that when he got down from the gondola after the accident, he actually saw that the copper in the Electric Cable was exposed and that at the charred part of the Electric Cable the plastic cover had melted. He also recalled that it was the 3^rd Defendant who pulled the Electric Cable away on hearing the Plaintiff shout. He confirmed that the burnt mark at the edge of the Canopy was not there when he went up that day.

The 3^rd Defendant

28.The 3^rd Defendant filed a witness statement written in Chinese on 16 October 2015. He gave an account and an explanation of how the accident occurred in paragraphs 8‑15 thereof. The English translation reads as follows:-

“8.  On 6^th August, 2012, when the Plaintiff was carrying out the Touch‑up Works on the rear external wall with Tsang Kam Fuk, one of his employees, on a gondola, the Plaintiff claimed that he met with an accident of electric shock. Before the accident, the Plaintiff had completed the Touch‑up Works for the front external wall and one of the columns of the rear external wall. He was working on the Touch‑up Works for the 2^nd column on the rear external wall at the time of the accident. On that day on the flat roof on the 5^th floor of Prince Building, there was an iron canopy built along the external wall of the top of the 5^th floor. At that time, there was an electric wire (‘the said Wire’) hanging out onto the external wall from the window of one of the units on the 7^th floor. The said Wire ran past the canopy that was on the top of 5^th floor and was connected to a locked electricity supply box situated on at the flat roof on the 5^th floor. As it ran from the top of the canopy to the said box, the wire passed over the edge of the iron canopy.

9.  At the time when the Plaintiff claimed there was an accident, I was checking the progress of the works on the flat roof of the 5^th floor of the site and heard the Plaintiff crying out loudly that he had an electric shock. I looked up from the flat roof and saw the gondola then being used by the Plaintiff and Tsang Kam Fuk had descended onto the top of the canopy on the 5^th floor. The said Wire was pressed close to the edge of the canopy, being caught in between the said Slanting Plank tied to the side of the gondola facing the external wall and the external wall itself, and pulled tight by the pressure exerted by the descending gondola. I hurriedly ran up to the 7^th floor to check if the said Wire carried electricity. When I opened the electricity box on the 7^th floor, I saw that the safety security device connected to the said Wire was in a state of having electricity supply cut off. It seemed that when the said Wire was being pulled and there was a possibility of electricity leakage, the leakage circuit breaker was activated and already cut off the electricity supply. I asked an electric worker to remove the said Wire from the electricity box. I also told the Plaintiff and Tsang Kam Fuk that the electricity box had already cut off supply and the said Wire no longer carried electricity.

10.  Thereafter the gondola moved upwards again the Plaintiff and Tsang Kam Fuk stopped it at a higher level on the external wall and continued with their work. About half an hour later, the workers stopped work to go for lunch.

11.  The said Wire was hanging out onto the external wall from one of the windows on the 7^th floor and connected to a locked electricity box situated on the flat roof on 5^th floor for supplying electricity to the lights on the scaffolding at the external wall at night for security purpose. Although the scaffolding had been dismantled at the time of the incident, as construction works had not yet been fully completed, the said Wire was kept to supply electricity in case it was needed. At that time the said Wire was neither connected to any hand tools nor supplying electricity to other areas.

12.  As to the long wooden plank (‘the said Slanting Plank’) which was tied by thin ropes to the bottom and along that side of the gondola which faced the external wall, I knew that it was tied there by the Plaintiff and Tsang Kam Fuk before they started working. The said plank slanted towards the bottom of the gondola and was used to catch the bolts removed from the external wall or dried‑up concrete debris chipped off therefrom so that they may slide onto the gondola. The said Slanting Plank may be pulled in or let down at any time. Pull the ropes tight and the plank would be pulled in and held tight against the barrier of the gondola facing the external wall; loosen the ropes and the upper edge of the said Slanting Plank would be released from the side of the gondola to lean against the external wall of the building, and it would be possible to collect the dried‑up concrete debris etc that has been chipped off from the external wall at the bottom of the gondola instead of letting it fall onto the ground.

13.  However the loosening of the slanting plank must be handled with care and only carried out when the gondola is stopped at a position where work is prepared to be carried out. When ascending or descending, the said Slanting Plank must be pulled up tightly because the distance between the gondola and the external wall would be very much shortened when the said Slanting Plank is loosened to a slanted or even horizontal position, which may lead to the gondola hitting a window, window frames or other obstacles ono the external wall when ascending or descending and cause the gondola to swing and possibly meet with danger.

14.  My view is that this suspected electric shock accident was caused by the said Slanting Plank not having been pulled up when the gondola was moving. I saw with my own eyes that the said Wire was pressed against the external wall by the gondola and the edge of the said Slanting Plank which was let down to a horizontal position. The pressure exerted by the descending gondola further pulled the said Wire tight causing it to stay close to the edge of the canopy. Rubbing between the said Wire and the edge of the canopy may lead to the former’s insulation protective skin being damaged and in turn the danger of electricity leakage.

15.  If the said Slanting Plank had been pulled up, a distance of at least its width would have been kept between the edge of the gondola and the canopy, sufficient to allow the gondola to pass along without touching the said Wire which was hanging out onto the external wall from the 7^th floor downwards. The gondola was parked on the flat roof on the 5^th floor before the commencement of work everyday. The Plaintiff and Tsang Kam Fuk would first hoist the gondola up to the 25^th floor after trying on the said Slanting Plank. When the gondola was being hoisted upwards the said Slanting Plank was pulled up to avoid hitting window frames or other obstacles on the external wall. Then work would be carried out from top to bottom. Therefor when the gondola was first hoisted upwards it must have passed over the canopy and the said Wire which had all along been hanging out on the external wall from the window on the 7^th floor. At that time there was no incident of touching the wire. My view is that this accident would have been avoided if only the Plaintiff had pulled up the said Slanting Plank before moving the gondola. The Plaintiff was a contractor and also licensed operator of the gondola. He had the responsibility of making a risk assessment and working out a suitable method of handling the situation.”

29.In examination in chief, he said that there was no dispute that the Plaintiff had suffered an electric shock as a result of the accident. He also confirmed that he was standing on the 5^th floor podium when it happened.

30.In cross‑examination, he gave the following evidence. The Electric Cable was for the purpose of the security lighting on the scaffolding outside the external wall facing King Fuk Street. It ran from the switch box on the 7^th floor out of the window down to the 5^th floor and ran along the top of the Canopy for some distance before being connected to a switch box with a timer on the 5^th floor podium. The scaffolding had been demolished about two weeks prior to the date of the accident. He had given instructions for the Electric Cable to be removed but the electrician had not gone to remove it. He said that he and his other staff were not qualified to remove it because they were not licensed electricians. He agreed that he was the person who was responsible for the connection of the Electric Cable from the 7^th floor to the 5^th floor podium. He was asked to look at the cable shown in the 2^nd photograph in Exhibit P1. He said that the Electric Cable was similar to the one in the photograph but that he was not sure whether it was the same one. He admitted that it was against the rules of safety to have a live electric cable hanging out of a window when not in use. He said that he had not known before the accident whether the Electric Cable was live or not. If he had known it was live, he would have removed it a long time ago. He also admitted that there was a simple switch in the switch box on the 7^th floor which could be used to turn off the current in the Electric Cable easily. He said that the principal contractor had a safety officer appointed on site who would visit the site about once a week but he did not know whether the safety officer was aware of the existence of the Electric Cable or its condition.

ANALYSIS OF THE EVIDENCE

31.Having seen and heard the Plaintiff, although there is some inconsistency in his evidence regarding the path of the Electric Cable going down from the 7^th floor to the 5^th floor, I believe that he is an honest witness and was trying his best to remember what actually happened. He is basically an uneducated person. I take that factor into account in viewing the way in which he has given evidence. I can well understand that he was actually not in a position to observe and remember clearly what happened because he was being electrocuted and felt dizzy. He was adamant however that the Electric Cable was never caught between the wooden planks and the face of the external wall.

32.The evidence of Tsang Kam Fook by and large confirms that of the Plaintiff. His evidence is that the Electric Cable ran along the red line as shown in Exhibit P1. In such circumstances, I do not see how the Electric Cable could have become caught up between the wooden plank and the face of the wall. I accept his evidence.

33.I do not accept the evidence of the 3^rd Defendant about the Electric Cable being caught between the wooden planks and the face of the external wall.

34.It is to be remembered that Mr Tsoi put to the Plaintiff in cross‑examination that the Electric Cable was hanging down loosely from the window on the 7^th floor and not being taut and the Plaintiff agreed that that was so. Furthermore, Mr Tsoi did not put to the Plaintiff as to how the Electric Cable hanging down loosely from the 7^th floor window to the left of the gondola could suddenly have become caught between the wooden planks and the face of the external wall. The Defendants have also not produced the Electric Cable to prove their theory that the Electric Cable was caught and damaged as alleged by them.

35.In all the circumstances and on the balance of probabilities, I find the following facts:-

(i) When the gondola reached the position as shown by the Plaintiff in Exhibit 4, there was a sudden minor explosion in the Electric Cable which damaged its plastic covering.

(ii) Alternatively, the plastic covering of the Electric Cable was already damaged and there was an escape of electricity through the damaged part to the edge of the Canopy which caused a minor explosion.

(iii) The minor explosion caused the burnt mark at the edge of the Canopy which was not there when the Plaintiff and Tsang Kam Fook first went up on the gondola on the morning of the accident.

(iv) There was an escape of electricity from the Electric Cable to the Canopy, the steel wires supporting the gondola which were in contact with the Canopy and through to the railings of the gondola.

(v) The Plaintiff was electrocuted because his right arm was in contact with the railing on the inner side of the gondola.

(vi) The Plaintiff shouted on being electrocuted. On hearing his shout, the 3^rd Defendant ran over and removed the Electric Cable from contact with the Canopy.

(vii) In the process, the circuit breaker of the switch box on the 7^th floor tripped.

(viii) The Electric Cable at no time got caught between the wooden planks and the face of the external wall.

(ix) The Electric Cable was not damaged in the manner suggested by the Defendants.

FINDINGS ON LIABILITY

Negligence under the Common Law

36.In all the circumstances stated above, I find that the 3^rd Defendant has been in breach of his common duty of care owed to the Plaintiff in that:-

(i) he caused or permitted a live electric cable (the Electric Cable) to be hanging out loosely from the 7^th floor window down to the 5^th floor, especially when he knew that there would be workers, including the Plaintiff, working on the external wall in the vicinity of that electric cable;

(ii) he did not give any sufficient warning to the workers, including the Plaintiff, that the Electric Cable was live;

(iii) he permitted the removal of the Electric Cable to be delayed when it had served its purpose;

(iv) he failed to cut off the electricity supply to the Electric Cable when he could easily have done so by using the switch in the switch box on the 7^th floor;

(v) he failed to check whether the Electric Cable which was hanging out in open air was intact and undamaged.

37.Assuming that I am wrong in my finding on the facts regarding how the accident occurred as set out in paragraph 36 above, I would still find the 3^rd Defendant liable on the basis of the maxim res ipsa loquitur.

38.The 3^rd Defendant was clearly in control of the Electric Cable. The Plaintiff was admittedly and clearly electrocuted by an escape of electricity therefrom. Even if the exact cause for the escape of electricity is unknown, unless the 3^rd Defendant is able to adduce some convincing evidence showing how it was caused without fault on his part, he should still be liable because he was in control of the object.

39.The law is succinctly summarised by Bokhary PJ in the case of Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 @ 211 as follows:-

“2.  The expression res ipsa loquitur (the thing speaks for itself) features prominently in the judgments of the courts below in this case. It is an expression that some lawyers [prominent among them Hobhouse LJ (as he then was) in Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170] prefer to avoid. But some lawyers still find it convenient. For my own part, I think that using it is convenient sometimes. The important thing to remember — and make clear — is that the expression does not denote a doctrine but merely ‘a mode of inferential reasoning’. The words which Ihave put within quotation marks are those used by Gleeson CJ and McHugh J in their joint judgment in a recent decision of the High Court of Australia, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at p 141.

3.  This mode of inferential reasoning applies only to accidents of unknown cause. But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause. The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care. The ‘essence’ of this was identified by Lord Radcliffe in Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at p 403G. It is, his Lordship said, that ‘an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence’.

4.  None of this is to be analysed as putting an onus on the defendant to disprove negligence. In the famous case of the falling bags of sugar, Scott v London and St Katherine Docks Co (1865) 3 H & C 596 at p 601; 159 ER 665 at p 667, Erle CJ, giving the judgment of the majority in the Court of Exchequer Chamber, said that:

‘...where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ (Emphasis added.)”

40.As I have found that the accident was not caused by the Electric Cable having been caught between the wooden planks and the face of the external wall, there is no other explanation which can relieve the 3^rd Defendant, the person in control of Electric Cable, of liability.

Occupiers’ Liability Ordinance, Cap 314

41.I next deal with liability under the Occupiers’ Liability Ordinance, Cap 314 (“Cap 314”).

42.Section 3 of the Cap 314 reads as follows:-

“3.  Extent of occupiers’ ordinary duty

(1)  An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)  The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3)  The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases —

(a)  an occupier must be prepared for children to be less careful than adults; and

(b)  an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4)  In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) —

(a)  where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b)  where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5)  The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

(6)  For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.”

43.The word “occupier” is not defined in the Ordinance. An explanation was given by Deputy High Court Judge Muttrie in the case of Chan Yan Nam v Hui Ka Ming (HCPI 1169/2000, unreported judgment dated 8 July 2002) by reference to a case in the Court of Appeal in England:-

“23. ‘Occupier’ is not defined in the Ordinance. A useful explanation of its meaning was given by Lord Denning in Wheat v Lacon 1966 AC 552 at 577 and 558 :

‘In the Occupier’s Liability Act, 1957, the word “occupier” is used in the same sense as it was used in the common law cases on occupiers; liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises...

Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor”; and the “occupier” is under a duty to his “visitor” to use reasonable care. In order to be an “occupier” it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be “occupiers”. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.

In SALMOND on TORTS (14^th Edn, 1965) p 372, it is said that an “occupier” is ‘he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons’. This definition was adopted by Roxburgh J, in Hartwell v Grayson Rollo and Clover Docks, Ltd, and by Diplock LJ., in the present case. There is no doubt that a person who fulfils that test is an “occupier”. He is the person who says “come in”; but I think that that test is too narrow by far. There are other people who are “occupiers”, even though they do not say “come in”. If a person has any degree of control over the state of the premises it is enough.’”

44.In my judgment, the 1^st Defendant, the 2^nd Defendant and the 3^rd Defendant were all “occupiers” of the site where the accident occurred because they were in control of the premises. They left or permitted a live electric cable hanging loosely from out of a window on the 7^th floor. It was clearly a source of danger to any “visitor”, including the Plaintiff, on the premises. The premises were rendered dangerous. The Plaintiff was injured by this source of danger. They have clearly breached their common duty of care towards the Plaintiff under the Ordinance.

45.I do not agree with the submission of Mr Tsoi that this case involves an “activity duty” as opposed to an “occupancy duty”.

46.I therefore hold that all the Defendants are liable to the Plaintiff under Cap 314.

Factories and Industrial Undertakings Ordinance, Cap 59

47.In the Statement of Claim, the Plaintiff has alleged breaches of statutory duty by the Defendants under Sections 6A and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“Cap 59”) and under Regulations 38A, 38AA and 47 of the Construction Site (Safety) Regulations (“the CSS Regulations”) made under Section 7 of Cap 59.

48.Section 19 of Cap 59 provides as follows:-

“19. Civil liability

This Ordinance does not —

(a) confer a right of action in civil proceedings in respect of a failure to comply with section 6A, 6B or 6BA; and

(b) affect the extent (if any) to which breach of any other provision is actionable.”

49.Thus, even if all the Defendants had contravened Section 6A of Cap 59, the Plaintiff would still not be able to have a civil claim against them based on their contravention of that subsection.

50.Section 13(1) of Cap 59 is a provision relating to penalty and is irrelevant for present purposes.

51.The relevant parts of Regulations 38A, 38AA and 47 of the CSS Regulations read as follows:-

“38A.  Duty of contractor responsible for construction site of ensure safety of places of work

(1)  Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall, so far as reasonably practicable —

(a)  identify the hazardous conditions of persons working at a height in the construction site; and

(b)  rectify any hazardous conditions of persons working at a height in the construction site; and

(c)  safeguard any person working at a height in the construction site against all hazardous conditions.

...

(4A)  For the purpose of this regulation, ‘hazardous conditions’ (危險狀況) includes the following conditions that may give rise to a risk of persons falling from a height —

(a)  unprotected edge or opening at a place of work;

(b)  improper design and construction of a place of work;

(c)  inadequate or insecure support or anchoring of a place of work;

(d)  improper maintenance of a place of work;

(e)  any working platform (other than a suspended working platform) that fails to comply with the provisions of the Third Schedule applicable to it.

(5)  For the avoidance of doubt, it is hereby declared that —

(a)  paragraph (4A) does not prejudice the generality of paragraphs (1), (3) and (4);

...

38AA.  Duty of other contractors to ensure safety of places of work

(1)  Without prejudice to the other provisions of this Part, any contractor who has direct control over any construction work shall, so far as reasonably practicable —

(a)  identify the hazardous conditions of persons working at a height in the construction work;

(b)  rectify any hazardous conditions of persons working at a height in the construction work; and

(c)  safeguard any person working at a height in the construction work against all hazardous conditions.

...

(5)  For the purpose of this regulation, “hazardous conditions” (危險狀況) includes the following conditions that may give rise to a risk of persons falling from a height —

(a)  unprotected edge or opening at a place of work;

(b)  improper design and construction of a place of work;

(c)  inadequate or insecure support or anchoring of a place of work;

(d)  improper maintenance of a place of work;

(e)  any working platform (other than a suspended working platform) that fails to comply with the provisions of the Third Schedule applicable to it.

(6)  For the avoidance of doubt, it is hereby declared that —

(a)  paragraph (5) does not prejudice the generality of paragraphs (1), (3) and (4);

...

47.  Use of electricity on construction sites

(1)  Where workmen employed at a construction site are liable to come into contact with any live electric cable or apparatus, the contractor responsible for the site shall, both before the commencement of the work at the site and during its progress, take such measures (whether by rendering the cable or apparatus electrically dead or otherwise) as will prevent them from being endangered by the cable or apparatus.

(1A)  Where workmen employed in carrying out any construction work are liable to come into contact with any live electric cable or apparatus, any contractor who has direct control over the construction work shall, both before the commencement of the work at the site and during its progress, take such measures (whether by rendering the cable or apparatus electrically dead or otherwise) as will prevent them from being endangered by the cable or apparatus.

....”

52.Regulation 2(1) of the CSS Regulations defines “construction site”, “direct control” and “workman” as follows:-

“‘construction site’ (建築地盤) means a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work;

‘direct control’ (直接控制), in relation to any construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, means control over the way the construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, as the case may be, is carried out;

‘workman’ (工人) means a person engaged in construction work.”

53.Regulation 2(2) of the CSS Regulations provides as follows:-

“(2)  For the purposes of these regulations —

(a)  a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;

(b)  a contractor is responsible for any plant referred to in these regulations if it is located at a construction site for which he is responsible.”

54.Section 2 of Cap 59 defines “construction work” and “contractor” as follows:-

“construction work (建築工程) means —

(a)  the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in Schedule 3;

(b)  any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of foundations;

(c)  the use of machinery, plant, tools, gear, and materials in connexion with any operation referred to in paragraph (a) or (b);

contractor (承建商), in relation to construction work, means any person or firm engaged in carrying out construction work by way of trade or business, either on his own account or pursuant to a contract or arrangement entered into with another person, including the State or any public body;”

55.In my judgment, the 1^st Defendant was “the contractor responsible for any construction site” within the meaning of Regulation 38A of the CSS Regulations and the 2^nd and 3^rd Defendants were “the contractor(s) who had direct control over any construction work” within the meaning of Regulation 38AA of the CSS Regulations in relation to the Building and the works carried out thereon. The existence of the Electric Cable which was live and hanging out of the 7^th floor window created a hazardous condition for all persons, including the Plaintiff, working at a height.

56.I therefore find that the 1^st Defendant has breached its statutory duty owed to the Plaintiff under Regulation 38A of the CSS Regulations.

57.Likewise, I find that the 2^nd and 3^rd Defendants have breached their statutory duty owed to the Plaintiff under Regulation 38AA of the CSS Regulations.

58.In relation to Regulation 47 of the CSS Regulations, I take the view that despite the use of the expression “workman employed”, all workmen working on the site, even in their capacity as contractors, are protected.

59.I find that the 1^st Defendant has breached its duty owed to the Plaintiff under Regulation 47(1) of the CSS Regulations and that the 2^nd and 3^rd Defendants have breached their statutory duty owed to the Plaintiff under Regulation 47(2) of the CSS Regulations.

60.They are not exempted from liability under Section 19 of Cap 59.

61.I therefore hold that all the Defendants are liable to the Plaintiff for breach of statutory duty under the CSS Regulations made under Cap 59.

Occupational Safety And Health Ordinance, Cap 509

62.In the Statement of Claim, the Plaintiff also sues for breach of statutory duty under Section 6(2)(d)(i) of the Occupational Safety and Health Ordinance, Cap 509.

63.It is quite clear that Section 6 of that Ordinance applies to protect only employees of an employer. Since the Plaintiff no longer claims that he was an employee of any of the Defendants, this Ordinance has no application in this case.

CONTRIBUTORY NEGLIGENCE

64.In light of my findings above, I rule that there is no room for finding contributory negligence against the Plaintiff at all.

QUANTUM OF DAMAGES

Medical Evidence

65.Part of the personal history of the Plaintiff has already been stated in paragraph 13 above. The Plaintiff is now just under 58 years of age.

66.A Joint Medical Report written by Dr Ko Put Shui Peter for the Plaintiff and Dr Chun Siu Yeung for the Defendants and dated 27 June 2015 (“the Joint Orthopaedics Report”) has been adduced in evidence.

67.In paragraph 10 of the Joint Orthopaedics Report, a summary of the injuries sustained and the treatments received by the Plaintiff up to about the end of 2014 as referred to in various medical reports is set out. It is helpful to set out such summary below:-

(i)   Medical report prepared by Dr Man King Hung of AED KWH dated 1 September 2014 and 17 September 2014

“-  Patient attended AED on 6 August 2012 for right upper limb injury by electric current whilst at work on day of attendance

-  Examination showed numbness over right upper limb and blisters over right hand

-  He was arranged for admission to medical ward but he discharged himself against medical advice

-  He attended again on 10 August 2012 for right upper limb numbness after the above mentioned injury

-  He was admitted into medical ward for further management

-  He attended again on 17 August 2012 for right shoulder pain, treated and discharged

-  He attended again on 29 October 2012 and requested medical report for his injury”

(ii)   Discharge summary of KWH dated 10 to 11 August 2012

“-  Shoulder X‑Ray: no fracture dislocation

-  Chest X‑Ray on 6 August 2012: clear

-  Emergency admission for electric shock over right arm on 6 August 2012

-  Improving power since 6 August 2012 during work, high voltage, no sensory problem

-  Decreased range of motion over right shoulder abduction due to weakness and pain

-  No burn mark, no other neurological symptoms, no chest pain/palpitation

-  Impression: electric shock, IOD

-  Progress: CK around 400, RFT normal, condition same, still cannot abduct right shoulder, request physiotherapy”

(iii)   Medical report prepared by Dr Kwong Ying Yui of the Department of Medicine and Geriatrics of KWH dated 3 October 2014

“-  History of haemorrhoid and colonic diverticulosis, admitted to KWH for electric shock over right arm on 10 August 2012

-  Presented with decreased range of motion of abduction over right shoulder due to pain and weakness, no sensory involvement

-  X‑Ray showed no fracture dislocation

-  Creatinine kinase level was 477 IU/L

-  He was referred to physiotherapy

-  Follow‑up on 24 August 2012, complained of persistent limited range over right shoulder

-  He was referred to O&T

-  Case closed for medical”

(iv)   Medical report prepared by Dr S H Yung of O&T PWH dated 24 December 2013

“-  First seen on 29 August 2012

-  Complained of right shoulder pain after sustaining electric shock on 6 August 2012

-  Subsequent clinical and radiological (MRI & Ultrasound) confirmed massive rotator cuff tear of right shoulder and bicep tendon tear

-  Pain and weakness with limitation persisted despite physiotherapy

-  Operation with arthroscopic repair of rotator cuff, tenotomy of the bicep tendon, and decompression of shoulder was performed on 25 April 2013

-  Had been receiving regular physiotherapy after operation

-  Latest follow‑up on 6 December 2013, progressively increasing range of motion and power of right shoulder but still residual pain and weakness

-  Not able to resume work

-  Sick leave granted from 29 August 2012 to 4 April 2014”

(v)   Physiotherapy report prepared by Leung King Ho of the Physiotherapy Department of PWH dated 16 May 2014

“-  Initial assessment on 29 October 2012 for diagnosis of right shoulder massive rotator cuff tear

-  After 6 months of treatment, reported 60% decrease in pain. Objectively regained near full elevation but residual tenderness and weakness with muscle wasting. Treating stopped after 22 April 2013 and he was planned for operation

-  Referred again for physiotherapy and treatment started again on 3 May 2013

-  After 12 months of treatment reported 50% improvement in both pain intensity and mobility

-  From record, he regained near full right shoulder mobility with residual pain and tightness

-  Significant improvement in right shoulder power noted but still weaker compared to the left

-  Treatment stopped after last session on 25 March 2014”

(vi)   MRI report prepared by Dr Wong Yik of HKBH dated 19 November 2012

“-  Large full thickness rotator cuff tendon tear noted in subscapularis and supraspinatus tendons. High grade undersurface tear is also noted in infraspinatus tendon

-  Medial displacement of tendon of long head of biceps seen due to full thickness tear of subscapularis tendon. Interstitial tear is also noted within the torn tendon of long head biceps proximal to insertion at superior glenoid labrum

-  Occult fracture noted in the posterior osseous glenoid extending into the articular surface. Moderate amount of joint effusion is noted in glenohumeral joint

-  Type III acromion, acromial spur indenting surface of supraspinatus tendon

-  AC joint hypertrophy with synovial thickening”

(vii)   Medical report prepared by Li Ching Anna of AED PWH dated 3 November 2014

“-  Patient attended on 12 March 2014, reported low mood and poor sleep after injury in 2012

-  He was referred to Psychiatry Department urgently in view of persistent symptoms and fleeting suicidal ideas”

(viii)   Medical report prepared by Dr Wong Ka Yee Lydia of the Department of Psychiatry of PWH dated 25 November 2014

“-  First known to OPD on 24 March 2014, referred from AED PWH for mood problem for 2 months after IOD on 6 August 2012

-  Had insomnia, poor appetite and suicidal thoughts, low mood crying spells, low self‑esteem and motivation, could not cope with work

-  Diagnosed to suffered from depressive disorder

-  He was given antidepressant and hypnotics

-  In summary, he suffered from depression after IOD, further psychiatric treatment is required

-  Last assessed on 7 October 2014”

(ix)   Ultrasound report prepared by Dr Liu Kim Hung of Radiology Department of PWH dated 21 September 2012

“-  Long head of bicep not visualized in the bicipital groove, could be due to complete tear, severe atrophy or dislocation

-  Significant thinning of supraspinatus tendon and mild thickening of subscapularis and infraspinatus tendon, this may represent a trophic change

-  Features are typical and suggested MRI for further investigation”

(x)   Consultation summary of orthopaedic clinic PWH dated 6 December 2013

“-  IOD

-  Right shoulder arthroscopic repair done on 25 April 2013

-  Torn subscapularis, long head bicep intrasubstance tear, complete full thickness tear of supraspinatus tendon

-  Arthroscopic repair, subscapularis and supraspinatus repair with bio‑corkscrews

-  Unable to return to previous work, suggest to change job

-  Right shoulder forward flexion and abduction: 150/150

-  Passive: 160/160

-  External rotation: 75

-  Supraspinatus power: Grade 4/5

-  Infraspinatus power: Grade 4/5

-  Subscapularis power: full power

-  Referrred to MAB

4 April 2014

-  IOD, but due to self‑employed cannot hold MAB, on legal proceedings, depression, follow‑up psychiatry

-  Active forward flexion: 170

-  Abduction: 160

-  External rotation: 60

-  Supraspinatus: 4+/5

-  Infraspinatus: full

-  Subscapularis: 4/5

-  Impingement: negative

15 August 2014

-  Post-operation 1+year, residual pain and weakness

-  Forward flexion : 110

-  External rotation : 40

-  Supraspinatus power : 4/5

-  Booked MRI to rule out re‑tear

-  SL to 10/10/2014”

(xi)   Operation record of PWH dated 25 April 2013

“-  Operative findings:

-  Gleno-humoral joint:

•  Torn superior 2/3 of subscapularis tendon

•  Common sign +ve

•  Long head biceps quite degenerative, with intra‑substance tear of intra‑articular part, & totally subluxed from the bicipital groove

•  Complete full thickness tear of supraspinatus tendon with severe retraction of fibre, exposing the whole under surface of acromion

-  Subacromial space:

•  Mild subacromial bursitis

•  Type III shape acromion

•  Complete full thickness tear of supraspinatus tendon, with severe retraction of tendon medial to the edge of glenoid, leaving a big hole of about 5cm diameter

•  Supraspinatus muscle tendon a bit atropic”

68.The Plaintiff was jointly examined by Dr Ko and Dr Chun on 19 March 2015. They set out in paragraphs 8 and 9 of the Joint Orthopaedics Report the result of their examination as follows:-

“8.  Physical examination

General

-  Sitting 30 minutes, get up from chair normally

-  Lower limb normal

-  Taking off jacket, mainly use left upper limb movements

Range of motion of upper limbs Left Right

Flexion 170° 75° Active
125°Passive (limited by pain)

Extension 60° 55° Active
60° Passive (limited by pain)

Abduction 180° 85° Active
110° Passive (limited by pain)

Adduction 50° 45° Active
45° Passive

External rotation 90° 70° Active
70° Passive (limited by pain)

Internal rotation 80° 70° Active
90° Passive

-  Obvious right shoulder muscle wasting, shoulder girdle including supra and infraspinatus and deltoid

-  7 surgical portals for arthroscopy, anterior and posterior well healed, mild pigmentation, every portal scar about 1cm

-  Glenohumeral joint diffuse tenderness, anterior and posterior and deltoid

Girth (cm) Left Right

Forearm 26.3 25.5

Arm 26.5 26.5

Motor Power (Grade 0‑5)

-  Left upper limb: grade 5;

-  Right shoulder: grade 4;

-  Right wrist: grade 5;

-  Right elbow: grade 5

-  Right side sensation normal

-  No CRPS I

-  Circulation normal

-  No excessive sweating

-  Normal hair distribution

9.  Radiographic examination

X-ray right shoulder taken at this examination:

-  Upper migration of the humeral head towards the acromion.

-  Sclerosis at the acromial edge.

-  Osteophyte formation at inferior articular margin of the humoral head.

-  OA change AC joint.”

69.In paragraph 11 of the Joint Orthopaedics Report, it is stated that both Dr Ko and Dr Chun are agreed on the above findings.

70.It can be seen from the above account of the treatments received by the Plaintiff that the injury he suffered has been giving him a lot of trouble both physically and mentally for the past 4 years.

71.Indeed, both Dr Ko and Dr Chun agree that:-

(i) the Plaintiff had sustained injury by electric shock;

(ii) he has suffered a right shoulder massive rotator cuff tear, including a supraspinatus, infraspinatus and subscapularis and occult position glenoid fracture extending into the articular surface and

(iii) he has suffered some psychiatric disorder as a result of his injury.

72.Dr Ko’s opinion is that all the injury and disabilities he has suffered have been caused directly by the electric shock he received during the accident. On the other hand, Dr Chun is of the opinion that, prior to the accident, the Plaintiff had already had a pre-existing condition of degenerative changes in his bones and joints as a result of the nature of his work over many years. Such a condition pre-disposed him to having problems with his rotator cuff irrespective of the accident and that the accident merely trigged off the pre-existing condition.

73.Broadly speaking, Dr Chun based his opinion on the following factors:-

(i) The Plaintiff suffered no severe convulsion/cramp/twitch of his right shoulder.

(ii) The sclerosis at the acromion edge of his right shoulder showed that the degenerative changes must have existed for a long time.

(iii) He had a type III acromion which would have been inborn and would make him more prone to the kind of injury suffered by him.

(iv) Thus even without the electric shock, his condition would have manifested itself quite soon.

74.Dr Ko on the other hand reasoned as follows:-

(i) The fact that the Plaintiff continued working for half an hour after the electric shock was consistent and compatible with the electrocution injury causing rotator cuff tear as an injured person in the first half hour or so might still have an adrenaline surge and some of the symptoms could have been masked.

(ii) The Plaintiff had continuously been working as a heavy manual worker for more than 15 years up to the time of the accident. He could not possibly have done that if he already had a massive rotator cuff tear just before the accident.

(iii) From the studies he conducted, prevalence of non-symptomatic full thickness rotator cuff tear would only be a minority in the general population in the age group of 50‑59. Bleeding from a rotator cuff tear resulting in the tracking of blood and causing bruises was not a typical feature of rotator cuff tear, whether it was caused by an acute trauma or a chronic tear, and was not a clinical sign which was reliable for diagnosis of any rotator cuff tear or rupture.

(iv) If there had not been a significant trauma to the right shoulder, the Plaintiff could not have suffered a glenoid fracture.

(v) The degeneration changes including the AC joint hypertrophy type III acromion and the stenosis in the acromion edge could have been pre‑existing in the Plaintiff but such degenerative changes would be quite common and prevalent in people in his age group. There would not have been a high chance of the same causing a massive rotator cuff tear without some serious trauma.

75.Both Dr Ko and Dr Chun are very well‑known and well respected in their profession. I have no doubt that both of them were doing their best to give their honest opinion in order to assist the Court. Having considered the Joint Orthopaedics Report and their evidence in the witness‑box as well as the evidence of the Plaintiff and on the balance of probabilities, I prefer the opinion of Dr Ko to that of Dr Chun.

76.I find as a fact that the injuries and disabilities suffered by the Plaintiff are the direct result of the accident and not caused by any pre-existing degenerative condition in any significant way.

77.In the Joint Orthopaedics Report, Dr Ko has given an assessment of 11% impairment of the whole person and 15% of loss of earning capacity, whilst Dr Chun has given an assessment of 10% impairment of the whole person and 2% of loss of earning capacity attributable to the accident. On the basis stated above, I prefer the assessment by Dr Ko.

78.As a result of the accident, the Plaintiff has also suffered some psychiatric problems. He was jointly examined by Dr Kwan Ka Lik for the Plaintiff and Dr Wong Chung Kwong for the Defendants on 31 August 2015. They have produced a Joint Psychiatric Report dated 5 May 2016 (“the Joint Psychiatric Report”). The parties are content that I should deal with this aspect of the case on the basis of such report without the two experts being called to give evidence as the differences between them are not so serious.

79.I have read through the Joint Psychiatric Report. At the end thereof, the experts summarise their agreements and differences as follows:-

“(VII) Our Main Points of Agreement and Disagreement

107. We agree on the following:

(i) Background personal and family history;

(ii) Psychiatric history after the accident;

(iii) Mental state examination findings in general;

(iv) The psychiatric diagnosis of Major Depressive Disorder;’

(v) That he is currently only suffering from mild symptoms of Major Depressive Disorder;

(vi) That he is able to return to his previous job on psychiatric grounds;and

108. We disagree on the following:

(i) Mental state examination findings: Dr Wong reports detailed findings of Mr Tsang’s exaggeration of mental symptoms;

(ii) Permanent impairment of functioning on psychiatric grounds: Dr Kwan thinks it is 5% whereas Dr Wong thinks it is 1%;

(iii) Permanent loss of earning capacity: Dr Kwan thinks it is 5% whereas Dr Wong thinks it is 1%;

(iv) Further psychiatric treatment: Dr Kwan recommends further psychiatric treatment whereas Dr Wong recommends treatment up to six months after the closure of this litigation; and

(v) Sick leave: Dr Kwan thinks he should be only granted sick leave for attendance of psychiatric follow‑ups if necessary whereas Dr Wong thinks that there is no need to give him further sick leave on psychiatric grounds.”

80.Psychiatric assessment is of course not an exact science. It is to be noted that in relation to his assessment of 1% permanent impairment on psychiatric grounds suffered by the Plaintiff, even Dr Wong says that there is no straight forward reference for assigning such a percentage figure.

81.Having observed the Plaintiff giving evidence in the course of which he broke down in the witness‑box at one stage and doing the best I can, I make the following assessment:-

(i) Permanent impairment of functioning on psychiatric grounds: 2%;

(ii) Permanent loss of earning capacity on psychiatric grounds: 2%

(iii) Sick leave: he should be given sick leave for attendance of psychiatric follow‑up sessions.

Heads of Claim

82.I now deal with the individual heads of claim below.

(1) Pain, Suffering and Loss of Amenities (PSLA)

83.The Plaintiff claims $450,000 under this head. The Defendants suggest that the figure should be no more than $350,000.

84.Mr Clough for the Plaintiff has referred me to the following cases:-

(i) Kong Koon Man Harriman v Phil Advertising Ltd

(Unreported, HCPI 517/2012, 20 May 2015)

(ii) Yu Pun Yuen v Ng Kwok Man

(Unreported, HCPI 293/2002, 9 May 2003)

(iii) Lee Kam Lin v Full Wise Ltd

(Unreported, DCPI 2354/2014, 27 November 2015)

(iv) Singh Inderjeet v Ho Chun Bong

(Unreported, HCPI 874/2007, 11 May 2009).

85.Mr Tsoi for the Defendants has referred me to the following cases:-

(i) Chan Hau Yu v Li Wing Kwai

(Unreported, DCPI 673/2013 & DCPI 1883/2012, 5 September 2014)

(ii) Kong Koon Man Harriman (supra)

(iii) Li Kwok Lo v Cafe de Coral Holdings Ltd

(Unreported, HCPI 804/2001, 5 November 2002)

86.I assess this head of PSLA at $400,000.

(2) Pre‑trial Loss of Earnings

87.The Plaintiff claims under this head the sum of $1,650,146.16. That sum is arrived at by applying an alleged monthly income of $31,733.58 for a period of 52 months (6 August 2012 to 6 December 2016).

88.The Plaintiff claims that his average monthly earning before the accident was $31,733.58. In his Witness Statement, the Plaintiff says that he was paid a total of $1,499,213 for the contract works. Out of that sum, the total sum of $1,118,410 was paid to other workers. Hence, the amount which he personally made from out of the contract works was $380,803. In cross‑examination by Mr Tsoi, the Plaintiff said that he arrived at the said figure of $31,733.58 per month by dividing the said figure of $380,803 by 12 (months).

89.The Plaintiff has also produced a number of documents, including some returns to the Inland Revenue Department setting out what he and other workers had received from out of the contract works relating to the Building. In cross‑examination, Mr Tsoi put to the Plaintiff that the evidence in support of his claim that his average earnings of $31,733.58 per month before the accident was too flimsy and insufficient to discharge his burden of proof. Mr Tsoi referred to one document filed by the Plaintiff with the Inland Revenue Department showing receipt of the total sum of $509,120 by 16 workers, including himself, and receipt by himself out of that the sum of $115,580 for the period between 1 August 2011 and 31 March 2012. Mr Tsoi suggested that, since the period of work during that one financial year was 8 months, the said figure of $115,580 should be divided by 8 and yield the figure of $14,447.50 which would be the average earnings per month of the Plaintiff before the accident.

90.Mr Clough referred to the Answer to Revised Statement of Damages filed by the Defendants which said that, assuming that the Plaintiff were an employee, he would be earning $980 per day or $25,480 per month (consisting of 26 working days). Thus, even on the Defendants’ own showing, the average earnings per month of the Plaintiff would be $25,480 and not $14,447.50.

91.Mr Clough very helpfully compiled a calculation sheet based on various documents, including bank statements and formal receipts, in the Trial Bundles showing that the average earnings of the Plaintiff by doing work in relation to the Building was $31,733.58 per month. I find that convincing. I annex hereto as Annexure 1 a copy of that calculation sheet.

92.I find as a fact that prior to the accident the average earnings of the Plaintiff were $31,733.58 per month.

93.I now deal with the question of sick leave.

94.Dr Ko suggests that sick leave should be granted to the Plaintiff up to 31 July 2015, subject to revision if there was going to be further re‑operation on the Plaintiff. There was none. Dr Chun suggests that sick leave should be granted up to only the end of 2014.

95.In my judgment, it is reasonable to grant sick leave up to 31 July 2015. After that, the Plaintiff should have obtained a job of a lighter nature, for example, as a watchman in some housing estate. According to the average monthly salaries of selected occupations as at June 2016 published by the Census and Statistics Department, such a job would have commanded a salary of $11,845 plus 5% MPF contribution per month, ie, $12,437.25.

96.I assess total loss of past earnings for 36 months from 6 August 2012 to 31 July 2015 as follows:-

$31,733.58 x 36 (months) = $1,142,408.88.

97.I assess partial loss of past earnings for 18 months from 1 August 2015 to the end of January 2017 as follows:-

$19,296.33 ($31,733.58 - $12,437.25) x 18 (months)

= $347,333.94

(3) Loss of Earning Capacity

98.The Plaintiff claims a sum equivalent to 6 months of his pre-accident earnings for loss of earning capacity, whilst the Defendants agree to 3 months. I assess the same at 4 months:-

$31,733.58 x 4 (months) = $126,934.32

(4) Loss of Future Earnings

99.The Plaintiff has asked me to apply a multiplier of 7.09 and the Defendants suggest that the multiplier should be 3 on the basis that the Plaintiff would have retired as a worker in the construction industry. Considering the nature of the Plaintifff’s work and the length of time he had been in the industry, I tend to agree with the Defendants. I apply a multiplier of 3. I therefore assess loss of future earnings as follows:-

$19,296.33 x 12 (months) x 3 = $694,656

100.As I have assessed the pre-accident earnings on the basis that he was a contractor rather than as employee, I do not think MPF would come into consideration.

(5) Special Damages

101.The Plaintiff claims $7,898 under this head which is agreed by the Defendants.

(6) Future Medical Expenses

102.The Plaintiff claims $20,000 under this head and the Defendants agree to $2,000. I assess this item at $10,000.

(7) Interest

103.The Plaintiff claims interest as follows:-

(i) on PSLA at 2% per annum from the date of the Writ and

(ii) on accrued special damages at half of the judgment rate from the date of the accident until the date of judgment and thereafter at the judgment rate.

104.The Defendants agree to the rates of interest suggested by the Plaintiff but make no admission on the period or periods for calculating interest.

105.I assess interest as follows:-

(i) on PSLA at 2% per annum from the date of the Writ and

(ii) on accrued special damages and pre‑trial loss of earnings at half of the judgment rate from the date of the accident until the date of judgment.

I do not need to say anything about interest on the judgment sum after the date of judgment which is automatic.

(8) Summary

106.I set out my award on the various items in summary form:-

(i) PSLA $ 400,000

(ii) Pre-trial loss of earnings (total) $ 1,489,742.82

(iii) Loss of earning capacity $ 126,934.32

(iv) Loss of future earnings $ 694,656

(v) Special damage $ 7,898

(vi) Future medical expenses $ 10,000

Total: $ 2,729,231.14

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