Leung Fun Hing v. Extreme Good (Asia) Construction Co. Ltd.

HCPI000057/2001

HCPI 57/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.57 OF 2001

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Coram: Hon Burrell J in Court

Dates of Hearing: 12, 13, 16 and 17 September 2002

Date of Judgment: 24 September 2002

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J U D G M E N T

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1.This is a claim for damages for personal injuries sustained in an accident whilst at work. The plaintiff was injured on 29 May 1998 whilst employed as a steel bender by the 1st defendant. The 1st defendant was sub-contractor of the 2nd defendant.

The accident

2.In the course of the plaintiff's employment bundles of steel bars were delivered to the site where he worked. The steel bars were 12 metres long and each bundle comprised 140 bars. Each bundle was tied up by steel wire so that it was in the form of a cylinder of rods weighing over two tons each. The bundles were delivered by crane and deposited on the ground.

3.The first task required of the plaintiff and his workmate, Ho Wai Kin (who also gave evidence on the plaintiff's behalf) was to move the bundles to a place where the steel bending and cutting was to take place. It was in the course of moving the bundles that the accident occurred.

The plaintiff's case

4.The plaintiff's version of what occurred, which was supported by Mr Ho, was as follows.

5.A crane would be used to move the bundles. The lifting appliance dangling from the crane was a thick chain divided into two limbs. When in place and ready to lift the chain formed an inverted Y-shape. Each limb of the chain had a hook at the end.

6.In order to loop each limb of the chain around the bundle of rods lying on the ground, the plaintiff and Mr Ho had to lever up the bundle with a metal rod, then place a wooden support underneath and then feed the chain underneath the bundle and hook the chain back onto itself at the top of the bundle. This was done at both ends of the bundle and when the arms of the chain were in the correct position along the length of the bundle, the signal to lift was given.

7.On this occasion the above procedure was followed, the signal to lift was given. The plaintiff had hooked up one of the chains and Mr Ho had hooked up the other one. When the bundle was about two metres off the ground and parallel with the ground, the hook that the plaintiff had been responsible for became detached. One end of the bundle crashed to the ground and the detached chain swung over and hit the plaintiff on the side of the head causing him injuries.

8.It was further alleged by the plaintiff that the hooks did not have safety catches and the steel wires which tied up the bundle were tightly wrapped around the steel rods and did not break when the bundle crashed to the ground. The bundle remained in tact.

9.The Statement of Claim, as amended, makes familiar and unremarkable allegations of negligence and breaches of statutory duty against both defendants in paragraphs 4 and 5. It is not necessary to make any particular mention of them.

The defence case

10.There was no defence witness who witnessed either the accident itself or the state of affairs immediately afterwards. The defence case rests on an accident report dated 10 June 1998 by a Mr Chow Siu Hung, who did not give evidence. The plaintiff agreed that his signature appeared on both the pieces of paper which formed the document but maintained that when he signed it only the details of, for example, name, address, time of accident etc., were on the form. He said that the narrative describing the accident was not there and must have been added later. The account which appeared in the accident report differed from the plaintiff's account in a number of important respects as follows. The report stated that :

(i)	the crane hook was hooked under the steel wires which tied the bundle together (not underneath the bundle);
(ii)	the bundle fell to the ground when one end was being lifted up to put the wooden support underneath (not when it was airborne and two metres up); and
(iii)	the cause of the fall was the snapping of the steel wire (not the slipping of the chain hook).

11.In addition, it was the defence case that the chain hooks did have safety catches.

Court's findings concerning the accident

12.For the following reasons, I accept the plaintiff's version.

(a)	When giving their accounts of the accident, both the plaintiff and Mr Ho gave credible evidence which, on the balance of probabilities, I considered to be reliable evidence. On occasions the plaintiff's evidence was somewhat confused. However, I was satisfied that the reason for this was his inability to express himself clearly. At the end of the day I was content that he had a clear and accurate recollection in his mind of what had happened - which was the account he gave to the court.
(b)	There was no defence witness to contradict their version.
(c)	The narrative in the accident report, whether written in the plaintiff's presence or not, was a mistaken version of the events. The mistake probably arose because of some confusion in the terminology between chains and wires. It transpired that on some other occasions and on other sites, thick wires and shekels and not chains dangling from the crane were used to do the lifting which would have added to the confusion.
(d)	The fact that the Employer's Compensation Claim ("ECC") statement and the original Statement of claim also refer to the defence version of the accident does not take the matter any further because the plaintiff did not see those statements. They would have been merely taken from the accident report thus repeating and continuing the same mistake without realizing it. No negligence need be shown in the ECC case and so the significance of the difference would have gone unnoticed. The ECC case was settled by a consent summons. The plaintiff had no further input into it.
(e)	The plaintiff's witness statement in these proceedings (and Mr Ho's statement) makes no reference to the chain hooks being hooked under the steel wire ties. To this extent the plaintiff's version has been consistent since the filing of his witness statement.
(f)	The defence version is inherently unlikely :

(i)	The purpose of the steel wire was to bind up the rods tightly, so that they would not slide and slip out during transit. The plaintiff said it would be impossible to hook the bulky hook underneath the wire. I accepted this contention. The defendant's witness, Mr Cheuk Yuk Ko, a director of the 1st defendant, said in his witness statement that the bundles were tied up tightly, although he resiled from this in evidence, saying that sometimes they were lose. I rejected this part of his evidence.
(ii)	There was no evidence or suggestion that the method of hooking the hook underneath the wire had ever been used before. There was simply no reason to use such a method on this occasion. This occasion was no different to any other occasion when the plaintiff's method had always been the method adopted.
(iii)	If the defence method had in fact been adopted, there would have been no need to lever up the bundle. It would not have been required because the method did not involve feeding the chain underneath the bundle. Both versions, namely the plaintiff's version in court on the one hand and the accident report on the other, refer to wooden planks being inserted underneath.
(iv)	A competent crane operator would have refused to lift the bundle by the steel wires. The plaintiff gave evidence to this effect. It would have been an inherently dangerous thing to do.

13.Having decided the issue of liability on the basis that the plaintiff's version is reliable, I do not think that any question of contributory negligence arises. I find the hook did not have a safety catch and the absence of such a catch resulted in the chain failing to remain in a secure position after it was lifted.

14.I therefore find both defendants jointly 100% liable for the accident. It is accepted by Mr Lim, who represents both defendants, that it is necessary neither to determine which defendant is liable for which particular form of negligence or breach of statutory duty nor to apportion blame between them.

Quantum

15.One important head of damages has been agreed. $350,000 has been agreed for pain, suffering and loss of amenity. It is unnecessary therefore to consider his short term injuries in any detail. He sustained a severe blow from the hook on the side of his head. His right ear drum was damaged. He now suffers from tinnitus and moderate right sided deafness.

16.However, there are four main areas of dispute concerning quantum issues :

(a)	There is conflicting medical evidence. It is agreed that his long term complaint is Post Concussional Syndrome (PCS). The reports from the government doctors who treated him are more sympathetic than the two reports from the doctors whose opinions were requested by the solicitors for both the plaintiff and the defendants. By direction of the court no medical evidence was called. The latter reports suggest that the plaintiff was reasonably off work for 9-12 months. The government doctors however suggest a 2 1/2 year period. Counsel for the defendants concedes that the shorter figure may be somewhat ungenerous. I agree and consider 18 months to be a reasonable period.
(b)	There is also an issue between the parties as to his ability to work since. At one stage he tried to resume his pre-accident steal bending job but because of symptoms related to PCS he only lasted two days at that work. He suffered from dizziness and fatigue. In evidence he said he has made effort to get work since but has been unsuccessful and now works in China for a meagre $650 a month. When he goes to China he stays with his mother. I take into account the relatively high unemployment figures at the present time but I do not consider it proper to use a mainland income of $650 a month as his present earning capacity for the purposes of calculating pre-trial and future loss. I accept the plaintiff's submission that he cannot return to his former work. I accept he genuinely could not manage to do steel bending work when he tried to do so for two days. However, I also accept the medical evidence which suggests he is capable of lighter duties. I treat him as being fit for and capable of getting some work in Hong Kong. In his Witness Statement he estimates that a watchman would earn $5,500 a month in Hong Kong. This is the only evidence available on the subject and is the figure I think it fair and proper to use for the purpose of these calculations. His home and family is in Hong Kong and he is able to do light work. I do not accept that the only employment available is a job which requires him to travel to the mainland and earn $650 a month or that he makes that journey because it is the only work he can get.
(c)	There was an evidential conflict about his pre-accident level of earnings. He stated he worked 26 days a month for $1,200 a day. The wage records did not bear this out. There was considerable evidence and argument at trial about the way to resolve this conflict. The plaintiff's case relied on his own evidence being true and reliable and the wage records being falsely manipulated. I had no doubt that the most reliable evidence was the wage records. An illustration of their reliability came from the evidence of Mr Ho, the plaintiff's witness. At first he said he had been working with the plaintiff for four months before his accident on 29 May 1998. However the wage records only showed his name from one month before the accident in April 1998. Further examination revealed that in fact he had worked at that site for a total of four months at the time he left, not at the time of the accident. He left in July 1998. He had therefore started in April which the records showed and confirmed. The records were correct and reliable in this, and I am satisfied, all other material respects. Moreover, the plaintiff's claim that the wage records were false and had been tampered with were, in my judgment, plainly untrue and designed to bolster his level of damages. He could have earned 26 x $1,200 had he worked every available day but he did not. The records show that from 1 June 1997 to 29 May 1998 he earned $230,900 which is an average of $20,990 per month. (He worked 11 months, not 12, during this period). $20,990 represents about two-thirds of what he would have earned had he worked every available day. For pre-trial loss of earning I will use this figure as the starting point. Now however the situation is slightly different. His evidence is that now, about 24 days a month could be worked at $1,200. A maximum per month would be $28,800. Assuming his pattern of work continued, he would work for, on average, 16 out of the 24 days, totalling $19,200 a month. I shall use this figure as the starting point for calculating future loss of earnings.
(d)	There is also disagreement as to the appropriate multiplier when assessing future loss. He is now 51. A multiplier of seven is claimed on the basis that he would have been in full time work to the age of 60, then lighter duties to 65. The defence, on the other hand submits that in the particular circumstances of this case a multiplier of three years would be correct. Having seen the plaintiff I consider the plaintiff's projection of his future employment is slightly rose tinted. A multiplier of six will be used.

17.The individual head of damages are therefore as follows :

			$
1.	Pain Suffering Loss of amenity (agreed)		350,000.00
	Plus interest at 2%		11,667.00
2.	Pre-trial loss of earnings
	(i)	For 18 months whilst off sick
		$20,990 x 18	377,820.00
	(ii)	Balance to date
		(51.8 months - 18 = 33.8 months
		$20,990 - 5,500 = $15,490
		$15,490 x 33.8 =	523,562.00
	(iii)	Loss of MPF (agreed)	21,500.00
	(iv)	Medical and travel expenses (agreed)	7,722.00
3.	Interest to be calculated at 4.0625% (agreed)		?
4.	Future loss
	(i)	(19,200 - 5,500) x 12 x 6	986,400.00
	(ii)	Loss of MPF (agreed)	84,000.00
	(iii)	Future medical expenses (agreed)	20,400.00
	(iv)	Loss of earning capacity
		(The defence had agreed a figure of $200,000 on the basis that there was no other award for future loss. The plaintiff on the other hand submits that $200,000 should be awarded on top of his future loss. In this particular case I do make an award for loss of earning capacity because of the uncertainty he has experienced in getting "light duties" work so far. I think a reasonable sum is one year's wages at his present potential level)
		12 x 5,500	66,000
	(v)	Future travel expenses	Nil ________
	Less ECC compensation (agreed)		2,449,071
			1,013,000
		Final award	1,436,071

18.Subject to an adjustment after the interest on special damages has been added there will be judgment for the plaintiff in this sum.

19.There will be an order nisi that costs shall be to the plaintiff, to be taxed if not agreed and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Ashok Sakhrani, instructed by Messrs George Tung, Jimmy Ng & Valent Tse assigned by DLA, for the Plaintiff

Mr Patrick Lim, instructed by Messrs Tsang, Chan & Wong, for the Defendants