Wong Sai Pui v. Lam Ngai Pang and Another

HCPI 391/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 391 OF 2002

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BETWEEN

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Before: Hon Barma J in Court

Dates of Hearing: 25, 27-28 May 2004 & 4 June 2004

Date of Judgment: 18 February 2005

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J U D G M E N T

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Introduction

1.By this action, the Plaintiff, Wong Sai Pui (“the Plaintiff”), claims damages against the Defendants in respect of injuries which he suffered as a result of an accident which he says took place while he was employed as a construction worker by the Defendants to carry out certain demolition works at shop premises located at Ground Floor, No. 7A-B Junction Road, Kowloon City, Kowloon (“the Shop”).

2.The Plaintiff, a construction worker, says that he was employed by the Defendants, Lam Ngai Pang (“the 1^st Defendant”) and Lam Shan Tung (“the 2^nd Defendant”), whom he alleges were demolition, decoration and renovation contractors undertaking demolition work at the Shop, on a casual basis to dismantle some fixtures and remove debris from the Shop on 1 and 2 June 1999.  According to the Plaintiff, on 2 June 1999, he was working outside the Shop, standing on a ladder about 3.2 metres in order to dismantle a spotlight which was fixed to the wall above its entrance, when the ladder suddenly toppled over, causing him to fall to the ground and to suffer a fractured right thigh.  As a result of the accident, the Plaintiff was out of work for a considerable period, and was subsequently unable to work in the construction industry, having to undertake the less strenuous work of a watchman at a considerable reduction in pay.  The Plaintiff says that the loss and damage which he suffered were due to the 1^st and 2^nd Defendants’ negligence, breach of contract and breach of statutory duty (arising by virtue of Regulation 38O of the Construction Sites (Safety) Regulations under the Factories and Industrial Undertakings Ordinance (Cap. 59) (“the Regulations”) which were in force at the time of the Plaintiff’s accident, and also by virtue of the Occupational Safety & Health Ordinance (Cap. 509) (“the Ordinance”)).

3.The 1^st Defendant did not give notice of intention to defend these proceedings, and interlocutory judgment for damages to be assessed was entered against the 1^st Defendant on 11 November 2002.  He did not appear at and took no part in the trial.  The 2^nd Defendant denies liability, principally on the basis that he was not the employer of the Plaintiff.  Mr Cheung, appearing for the 2^nd Defendant, also submitted that Regulation 38O did not apply in this case so as to impose liability on the 2^nd Defendant for a number of reasons which I shall consider later.

The parties and other persons involved in these proceedings

4.Before considering the evidence which was presented at trial, it is necessary first to identify the various persons and entities involved in this matter.

5.The Plaintiff was born in October 1945 in China, and was just under 59 years of age by the time of the trial.  He was educated up to junior secondary level in China, and from the age of 17 onwards, worked as an electrician there.  He came to Hong Kong in 1989, and was joined by some of his family here in 1994.  He has worked in a number of jobs since coming to Hong Kong, but immediately prior to the accident had worked for about a year and a half as a casual construction worker, working for a Man Ping Construction Company (“Man Ping”).

6.The 2^nd Defendant is the father of the 1^st Defendant.  He was about 51 years old at the time of the trial.  Like the Plaintiff, he was born in China, where he received his education up to the fourth year of secondary schooling, after which he worked as a tutor and also as a farmer.  He came to Hong Kong in 1980, and says that between then and about February 1998, he worked primarily in the garment industry.  From 10 April 1989 to 12 February 1998, he was employed by a company called Cheong Shun Garments Co., Ltd, leaving because he was made redundant.  Thereafter, he says that he assisted the 1^st Defendant in handling the 1^st Defendants’ business interests in Hong Kong, and that he was employed initially by the 1^st Defendant and a Ms Seah Bee Bee (“Ms Seah”) and later by a company in which the 1^st Defendant, Ms Seah and a Mr Wong Chi Ho (“Mr Wong”) were interested, called East Dragon Jewellery Manufacturing Company Ltd (“East Dragon HK”), which he says was his employer at the time of the Plaintiff’s accident.

7.The 1^st Defendant is the son of the 2^nd Defendant.  Until about late 1998, he was employed by a company dealing in crystals and jewellery called Amethyst Kingdom Company Ltd (“Amethyst”).  For most of 1998, he was working in Singapore, where Ms Seah was one of his colleagues.  It appears that in early 1998, he and Ms Seah decided to set up their own business, also dealing in crystal and jewellery, and caused East Dragon HK to be incorporated (with the assistance of the 2^nd Defendant) on 13 November 1998.  Apart from East Dragon HK, they also caused a company called East Dragon Jewellery Manufacturing Co. Pte. Ltd (“East Dragon Singapore”) to be incorporated in Singapore.  It appears that their intention was to use East Dragon HK to source crystal and jewellery from China for supply to East Dragon Singapore, which would on sell the crystal and jewellery to customers in Singapore.

8.Mr Wong was a childhood acquaintance of the 1^st Defendant.  He too was involved in the crystal and jewellery business, being a partner in a firm called Crystal Chateau Rock Stone Consultant (“Crystal Chateau”), which had its place of business at the Shop until the end of May 1999.  He was also a shareholder in East Dragon HK between its incorporation and 11 September 2000, and it appears that the Shop was also used by East Dragon HK for the purposes of its business until the end of May 1999.

9.As I have noted, Ms Seah was a colleague of the 1^st Defendant’s at Amethyst, also working for that company in Singapore, and was involved in setting up and operating the businesses of East Dragon Singapore and East Dragon HK.

10.Mr Wang Liu Qing (“Mr Wang”) and Mr Huang Zhi Jian (“Mr Huang”) were friends of the Plaintiff.  Both were Mainland residents who visited Hong Kong from time to time.  While in Hong Kong, it appears that they took up casual employment as construction and decoration workers.  Both were working with the Plaintiff at the Shop to dismantle fixtures and remove debris, and were present when the accident occurred.

11.Finally, there was Mr Liu Chak Bun, an itinerant cooked food hawker, who operated a mobile stall selling seafood soup near the 2^nd Defendant’s home.  He was an acquaintance of the 2^nd Defendant, and had known him for some 10 years by May 1999.

The factual background and the parties’ respective cases

12.The immediate background to these proceedings is that Crystal Chateau’s lease of the Shop was due to expire at the end of May or early June 1999.  As Crystal Chateau and East Dragon HK had found alternative premises in an industrial building in Hung Hom (“the Hung Hom office”), it was not proposed to renew the lease of the Shop.  As a result it became necessary for the fixtures in the Shop to be removed so that the premises could be reinstated to their original condition prior to possession of the Shop being returned to the landlord.

13.At the trial, the main evidence was given by the Plaintiff and the 2^nd Defendant.  Each of them made two witness statements, and gave oral evidence at the hearing.  As will be apparent from the summary of their evidence which follows, their respective cases as to how the Plaintiff came to be engaged to carry out the dismantling and removal work at the Shop differ in a number of respects.

14.According to the 2^nd Defendant, in about late May 1999, the 1^st Defendant was in Hong Kong, and discussed the question of moving from the Shop to the Hung Hom office with Mr Wong during a conversation at which the 2^nd Defendant was present.  The 2^nd Defendant says that the issue of reinstatement of the Shop came up, and Mr Wong and the 1^st Defendant asked him if he knew of any contractors who would be prepared to dismantle and remove the fixtures in the Shop.  The 2^nd Defendant said that he did not know of any contractors, but would ask if any of his friends knew of any.  On returning home, he met Mr Liu, and told him that his son was moving office, and needed someone to clear out the old premises - i.e., the Shop.  He asked if Mr Liu knew of anyone who might be willing to do this work.  Mr Liu said he would see what he could do to help.

15.The next day, Mr Liu told the 2^nd Defendant that he had found a contractor.  He then introduced the 2^nd Defendant to Mr Wang, but when the 2^nd Defendant discovered that Mr Wang did not have a Hong Kong identity card, he was not prepared to go further.  Mr Wang then said that he could recommend someone who was a Hong Kong resident to take up the job.  A day or two later, Mr Wang called the 2^nd Defendant and said he had found someone to do the work, and asked the 2^nd Defendant to meet him at the McDonald’s restaurant in To Kwa Wan.  At the restaurant Mr Wang introduced the Plaintiff to the 2^nd Defendant.  The 2^nd Defendant says that he told the Plaintiff about the work that needed to be done, that the Plaintiff said that it would need about three men, working for two days, and at a daily wage of HK$350 per day, the total cost would be around HK$2,100.  The 2^nd Defendant says that he told the Plaintiff that that should be alright, but that he would discuss it with the person in charge and, if everything was in order, would ask the Plaintiff to go and talk to that person about the work.

16.The 2^nd Defendant says that he then told the 1^st Defendant about the Plaintiff, and was asked to tell the Plaintiff to come and meet the 1^st Defendant.  He telephoned the Plaintiff, and told him to go to the Hung Hom office to meet the 1^st Defendant.  He says that later that day or the next day, he ran into the Plaintiff at the Hung Hom office building, and that the Plaintiff told him that everything had been arranged.

17.The 2^nd Defendant says that he went to the Shop on 1 June 1999 to do some work, clearing up crystals and papers that had not yet been moved to the Hung Hom office.  When he arrived, he saw the Plaintiff and two other men (Mr Wang and Mr Huang) waiting outside the shop.  Mr Wong then arrived and opened up the Shop, and the 1^st Defendant arrived a little later.  The 1^st Defendant and Mr Wong then had a conversation with the Plaintiff and the others, after which the Plaintiff, Mr Wang and Mr Huang started work, dismantling and removing various fixtures at the shop.  The work continued for the rest of the day.  Sometime later in the day, Mr Wong asked the 2^nd Defendant to lock up at the end of the day, and to come back the next day to open up the Shop so that the reinstatement work could be completed.

18.The 2^nd Defendant returned the next morning, 2 June 1999, and let the Plaintiff, Mr Wang and Mr Huang in.  He noticed that they had a ladder with them on this occasion.  He continued tidying up documents and collecting crystals and other stones in the Shop, and left the others to their work.  He worked until sometime after noon, when he left to have his lunch at a restaurant across the road.  He says that while he was having his lunch, he noticed Mr Wang and Mr Huang outside the shop, looking anxious.  He went to investigate, and discovered that the Plaintiff was inside the shop, injured.  He called the police, who called for an ambulance.  He then accompanied the Plaintiff to the hospital.

19.The Plaintiff’s version of events is different.  According to him, he was at a restaurant with Mr Huang on 28 May 1999 when he met Mr Wang, who told him that he had a friend who needed someone to do some decoration work, and asked whether the Plaintiff might be interested.  As he had just stopped working for Man Ping, the Plaintiff expressed his interest.  The next day, Mr Wang called and asked the Plaintiff and Mr Huang to meet at the McDonald’s in To Kwa Wan.  The Plaintiff says that he and Mr Huang were there introduced to the 2^nd Defendant (according to the 2^nd Defendant, however, Mr Huang was not present at the meeting at McDonald’s).  The 2^nd Defendant told them that he had some decorating works to be done, and asked if the Plaintiff was interested.  The Plaintiff says that he told the 2^nd Defendant that he would need to look at the site first, whereupon the 2^nd Defendant suggested that they should all go there together, and took the Plaintiff, Mr Wang and Mr Huang to the Hung Hom office, where they saw the 1^st Defendant who appeared to be moving things in, although they did not speak with him.  The Plaintiff says that he took some measurements, listened to what the 2^nd Defendant required, and told the 2^nd Defendant that he would need to work out a quotation.  He says that he prepared a quotation with the help of Mr Wang, and that Mr Wang passed it on to the 2^nd Defendant the following day.

20.The Plaintiff says that Mr Wang then telephoned him on the evening of 31 May 1999, and told him that the decorating job at the Hung Hom office was not available, but that the 2^nd Defendant had another job involving some dismantling and removal work, which would pay HK$350 per day.  The Plaintiff says that he told Mr Wang that in that case, Mr Huang should also be brought in, and that they should go and take a look at what the work involved.  Mr Wang then told him to meet him and the 2^nd Defendant at an address in Cheung Ning Street, To Kwa Wan the next morning (this was the 2^nd Defendant’s home address).  The Plaintiff says that he waited there with Mr Wang and Mr Huang the next morning, and the 2^nd Defendant came out with some tools, and took them by taxi to the Shop.  There, they met the 1^st Defendant, who explained what work needed to be done.  The Plaintiff says that he asked the 1^st Defendant about his wages, and said that he should be paid more than Mr Wang and Mr Huang.  He says that he eventually agreed with the 1^st Defendant that he should be paid HK$700 per day.  He agreed that the 2^nd Defendant was not involved in this discussion.  However, he said that after that, the 2^nd Defendant told him what to do.  He said there was another worker there that morning as well, but that this other worker was not there in the afternoon or on the next day.  He, Mr Wang and Mr Huang finished work that evening, and returned the next morning, when the 2^nd Defendant told them that the canopy and spotlights outside the Shop were to be removed (the 2^nd Defendant denies having said this).  He told the 2^nd Defendant that they would need a ladder, whereupon the 2^nd Defendant gave him HK$100 to go and buy one, which he did.  Mr Wang and Mr Huang then climbed up onto the canopy to dismantle it, while the Plaintiff set to work removing the spotlights.  While he was working on the second spotlight, the ladder toppled over and he fell.  He said that the 2^nd Defendant was watching him work when this happened, and helped him into the Shop, and called the police and an ambulance.  He says that while he was in hospital the 1^st Defendant visited him and paid him HK$1,400.

21.Put simply, the 2^nd Defendant’s position is that he was not a decoration or construction contractor, and that he did not employ the Plaintiff to do the work which the Plaintiff was doing when he suffered his accident.  He was, he says, an employee of East Dragon HK, and was simply assisting the 1^st Defendant and Mr Wong, who were shareholders of that company, by finding a them contractor, the Plaintiff, to carry out the work of removing the fixtures and debris from the Shop, which had been occupied by Crystal Chateau and East Dragon HK.  His case was that it was the Plaintiff who was the contractor carrying out the work at the Shop, and that any contract that the Plaintiff had entered into was not with him, but with the 1^st Defendant (and also Mr Wong), or perhaps East Dragon HK.

22.As to his employment, the 2^nd Defendant said that he was employed first by the 1^st Defendant and Ms Seah, and later (after its incorporation in November 1998) by East Dragon HK.  He said that he received a salary of HK$8,000 (later increased to HK$9,000) plus a travelling allowance of HK$900 per month.  He explained that until November 1998, the 1^st Defendant arranged for him to be paid his salary by directing his own employers, Amethyst, to make payments to the 2^nd Defendant.  He produced his savings passbook with the Dah Sing Bank, from which regular payments of HK$8,900 and later HK$9,900 appeared.  Payments of HK$8,900 were made into this account on 2 March, 4 April and 2 May 1998, and payments in of HK$9,900 were made on 3 July, 5 August, 1 September, 5 October and 10 December 1998.  No payments into this account in June or November 1998.  The Plaintiff said that there were payments for these months, but that they were made into a different savings account with the Hongkong & Shanghai Banking Corporation Ltd (“HSBC”), which had since been closed, and for which he had not retained the records.  These payments were said to cover the period from February 1998 until November 1998.  The Plaintiff said that he continued to be paid until September 1999, but that thereafter, he did not receive any further payments.  However, the payments for December 1998 onwards were not made on a regular basis, but were made irregularly, as and when the 1^st Defendant (who was based in Singapore) visited Hong Kong.  He pointed to a number of payments into the Dah Sing Bank savings account as constituting payment of his salary for this period, although they did not correspond exactly in terms of timing or amount with a monthly salary of HK$9,900.

The other witnesses

23.Apart from the Plaintiff and the 2^nd Defendant, Mr Wong, Ms Seah and Mr Liu gave evidence at the trial.

24.Mr Wong said that so far as he was aware, the 2^nd Defendant was not an employee of East Dragon HK, of which Mr Wong was a shareholder.  However, he accepted that the 2^nd Defendant did assist in the carrying on of the business of East Dragon HK in various ways, including making arrangements for the shipment of goods by East Dragon HK to East Dragon Singapore, although he said he was not sure whether the 2^nd Defendant’s role extended to other matters such as liaison with Mainland suppliers and purchasing or collecting crystal and gemstones from the Mainland.  He said that he did not know whether or not the 2^nd Defendant was remunerated for what he did, but that he might have been so remunerated by the 1^st Defendant.

25.So far as the work for which the Plaintiff was engaged was concerned, Mr Wong confirmed that it was necessary to reinstate the Shop premises before returning them to the landlord, and that he had had a discussion about this with the 1^st Defendant and the 2^nd Defendant.  He said, however, that the 2^nd Defendant had offered to carry out the work for some HK$4,000 to HK$5,000 odd, and claimed that he had in fact paid this amount to the 2^nd Defendant over two occasions some two or three months after the work had been done.  However, in cross-examination, he appeared to modify this evidence, saying that the gist of what the 2^nd Defendant said was that he would see if his friends in the decorating trade could introduce someone who could do the necessary work, and that the sum of HK$4,000 to HK$5,000 was simply the 2^nd Defendant’s estimate of what the work might cost, rather than a proposed charge by the 2^nd Defendant.  He accepted that he did not actually know whether or not the 2^nd Defendant was a decoration contractor by trade, saying that he had been told this by the 1^st Defendant.  So far as the employment of the Plaintiff, Mr Wang and Mr Huang was concerned, he said that he did not know who actually employed them.

26.As for the Hung Hom office, Mr Wong said that it was substantially fitted out by the end of May 2000, with only air conditioners and some glass partitions remaining to be installed.  He also agreed that he was at the Shop on 1 June 1999, but said that he was concentrating on the removal of the airconditioners, which were to be disconnected and moved to the Hung Hom office, where they were to be re-installed.  This work was being done by a friend of his who was in the business of supplying and installing air conditioners.  He said that the 2^nd Defendant was present at the shop, but he thought that the 2^nd Defendant did not have any tools with him, whereas he thought that the others were carrying tools.

27.Ms Seah gave evidence for the 2^nd Defendant.  She confirmed that he was employed to assist in the business of the East Dragon companies.  Although she was not very clear about this, she said that she thought he was formally employed by East Dragon HK, but that his salary was paid out of East Dragon Singapore for tax reasons, as the Hong Kong company did not make significant profits (as it charged the Singapore company a modest mark up on the cost of the goods which it supplied), whereas the Singapore company was expected to make more substantial profits, since it was the one effecting the sales to customers.  She said that his salary was paid by East Dragon Singapore in Singapore dollars, and that it was set at a level of $$2,200 per month (which was roughly equivalent to HK$9,900).  She produced copies of accounting vouchers of East Dragon Singapore, which she had prepared, showing payments of S$2,200 per month to the 2^nd Defendant, up to and including December 1999.  She confirmed that the amount of S$2,200 was paid every month, being paid to the 1^st Defendant, whom she believed then made payments to the 2^nd Defendant in Hong Kong when he visited Hong Kong.

28.Finally, Mr Liu gave evidence essentially confirming the 2^nd Defendant’s evidence as to his dealings with Mr Liu in relation to this matter.  He confirmed that the 2^nd Defendant had told him that the 1^st Defendant needed someone to do some dismantling and clearing works, and said that the 2^nd Defendant did not say anything about work needing to be done at the new Hung Hom office.

29.Apart from the witnesses, there were also two statements from Mr Huang, which I admitted as hearsay evidence.  These statements were largely confirmatory of the Plaintiff’s evidence, although Mr Huang suggested that the meeting at McDonald’s took place on 30 May 1999, rather than 29 May 1999 as both the Plaintiff and 2^nd Defendant had said.  Mr Huang also said that he was subsequently paid HK$700 by the 2^nd Defendant through Mr Wang, after he had returned to China.

The claims advanced by the Plaintiff

30.As I have indicated, the Plaintiff puts his claim against the 2^nd Defendant in a variety of ways.  These are:-

(1)	negligence;
(2)	breach of contract, on the basis that the 2nd Defendant was the employer of the Plaintiff and as such owed the Plaintiff various contractual duties to take care for his safety, which were breached;
(3)	breach of Regulation 38O of the Regulations;
(4)	breach of the duty under section 6(1) of the Ordinance to ensure the safety and health at work of the Plaintiff.

31.So far as negligence is concerned, I did not understand Mr Lee, appearing for the Plaintiff, to suggest that this claim added anything to the claim based on breach of contract.  It therefore does not need to be considered separately from that claim.

32.So far as breach of contract is concerned, Mr Cheung accepted that if it were proven that the 2^nd Defendant was the employer of the Plaintiff, liability would be established.  He submitted, however, that the evidence clearly showed that the 2^nd Defendant was not the employer of the Plaintiff, and that the 2^nd Defendant’s role was simply to bring the Plaintiff and the 1^st Defendant together so that they could conclude an arrangement between themselves.

33.As for the alleged breaches of Regulation 38O, Mr Cheung submitted:-

(1)	that the 2nd Defendant was not liable under Regulation 38O (which imposes duties on “the contractor responsible for a construction site” or “the contractor for a construction site”) because he was not a contractor, let alone the contractor responsible for the site where the ladder from which the Plaintiff fell was in use;
(2)	that the Shop was not a construction site within the meaning of the Regulation; and
(3)	that the type of ladder used, which was a folding A-shaped ladder, was not covered by Regulation 38O(2) on which the Plaintiff relies.

34.Finally, as for the alleged breach of the Ordinance, it was submitted that if the 2^nd Defendant was not the employer of the Plaintiff, he was not liable in respect of any breach of the Ordinance having regard to the definition in section 2(2) of the Ordinance of “person responsible for a workplace” on whom the duties under the Ordinance are imposed.  This would appear to be correct, since section 2(2) defines such a person as “the employer of the employees who are employed to carry out work there, or if the employer does not exercise any degree of control over the relevant part or aspect of the workplace, ... the occupier of the workplace”.  Mr Lee did not suggest (and I do not think that it could realistically be suggested) that the 2^nd Defendant could be regarded as the occupier of the Shop, and it therefore follows that if the 2^nd Defendant was not the employer of the Plaintiff, he would owe the Plaintiff no duties under the Ordinance.

The principal issues arising

35.The first issue that arises for determination, therefore, is whether or not the 2^nd Defendant was the employer of the Plaintiff.  If he was not, he will not be under any liability in negligence, breach of contract, or breach of statutory duty under the Ordinance.  If he was, liability will, as Mr Cheung accepted, be established.

36.If the 2^nd Defendant was not the employer of the Plaintiff, it will be necessary to consider whether or not he was a contractor, and if so, whether he was the contractor responsible for the dismantling and removal work being carried on at the Shop.  If so, it will be necessary to go on to consider Mr Cheung’s other arguments in relation to the Regulations, which I have set out in sub-paragraphs 33(2) and (3) above.

Was the Plaintiff employed by the 2^nd Defendant

37.I turn therefore to consider whether or not the 2^nd Defendant employed the Plaintiff.  In this regard, the following factors are, to my mind, of greatest relevance:-

(1)	The role of the 2nd Defendant vis-a-vis East Dragon HK and the 1st Defendant and Mr Wong.
(2)	Whether the 2nd Defendant was a decoration or construction contractor by way of trade.
(3)	What transpired at the meeting between the Plaintiff and the 2nd Defendant at McDonald’s on 29 May 1999 and thereafter.
(4)	What happened on 1 June 1999, in terms of how the Plaintiff got to the Shop, who provided the tools for carrying on the work and what discussions there were, and with whom, about the Plaintiff’s remuneration.
(5)	The manner in which the Plaintiff and his co-workers received payment for the work which he did.

The 2^nd Defendant’s role in relation to the East Dragon companies

38.So far as the 2^nd Defendant’s role in relation to East Dragon HK, and the 1^st Defendant and Mr Wong is concerned, it was the 2^nd Defendant’s case that he was employed by East Dragon HK, having previously been employed by the 1^st Defendant and Ms Seah to assist in their intended business of purchasing crystal and gemstones in China and Hong Kong for sale in Singapore.  The 2^nd Defendant described his role in this business as being broadly that of a merchandiser, in which he would visit suppliers on the Mainland, make some purchases, inspect goods supplied and make arrangements for the goods to be shipped to East Dragon Singapore.

39.The 2^nd Defendant produced a name card on which East Dragon HK’s name appeared along with his own, and pointed to the regular payments of HK$8,900 and later HK$9,900 into his savings account with Dah Sing Bank, together with the later less regular payments into that account as evidence of such employment.  He also produced a letter signed by Ms Seah confirming that he was employed by East Dragon HK.  Ms Seah also confirmed in her oral evidence that the 2^nd Defendant was employed by East Dragon HK, although she said that payments of his salary were effected by East Dragon Singapore for tax reasons.  Although Mr Wong said that he was unaware that the 2^nd Defendant was employed by East Dragon HK, he accepted, I think, that there might have been some arrangement between the 2^nd Defendant and the 1^st Defendant of which he was not aware.  He also accepted that the 2^nd Defendant did perform some work in connection with the business of East Dragon HK, although he suggested that it was not as extensive or substantial as the 2^nd Defendant made out.

40.In considering the evidence on this aspect of the matter, I have had little hestitation in accepting Ms Seah as an honest witness.  She had no particular interest in the outcome of this matter, and I considered that she was genuinely trying to assist the court with her evidence.  So far as Mr Wong was concerned, the impression that I had was that while his evidence was by and large truthful, he was somewhat concerned to minimise his involvement in the matter.  He had previously been made a party to employee’s compensation proceedings by which the Plaintiff had initially made a claim against the 1^st Defendant and Mr Wong, amending the claim to include a claim against the 2^nd Defendant in the light of an affirmation which Mr Wong had made in those proceedings, suggesting that the 2^nd Defendant might have been the Plaintiff’s employer in connection with the dismantling and removal works at the Shop.  As for the 2^nd Defendant himself, my view was that for the most part, he was an honest witness, although he may have slightly exaggerated the extent of work which he undertook in connection with the business of East Dragon HK.

41.Mr Lee made a number of criticisms of the 2^nd Defendant’s evidence as to his employment by East Dragon HK, and suggested that he was not an honest or reliable witness.  Mr Lee drew attention to the fact that the 2^nd Defendant had, on his own admission, little or no prior experience of the jewellery trade prior to starting work for the 1^st Defendant and Ms Seah, and later for East Dragon HK.  He suggested that in the light of this inexperience, it was improbable that East Dragon HK would have employed the 2^nd Defendant as a merchandiser.  Mr Lee also relied on the evidence of Mr Wong as to the work which the 2^nd Defendant undertook as indicating that he was not employed by East Dragon HK as a merchandiser.  He pointed out also that the name card produced by the 2^nd Defendant post-dated the events with which I am concerned, and in any event did not contain any description of his position within the 2^nd Defendant.

42.While the point as to the 2^nd Defendant’s lack of experience is a valid one, I do not think that it goes so far as to destroy the 2^nd Defendant’s case as to his having been employed by East Dragon HK.  At most, it indicates that the 2^nd Defendant may have overstated his position to some extent.  To my mind, the evidence of Ms Seah and Mr Wong, while perhaps not going so far as to establish that the 2^nd Defendant was a merchandiser in the sense in which that is generally understood, as someone performing the function of sourcing and obtaining goods for supply to the business by which he is employed, clearly showed that the 2^nd Defendant was involved in assisting with the business of East Dragon HK, although the extent of his services may have been slightly less extensive than he suggested.  Given that the 1^st Defendant and Ms Seah were both in Singapore, and that Mr Wong did not suggest that he did a great deal in connection with the business of East Dragon HK, it does not seem to me to be particularly surprising that the 1^st Defendant should have asked his father, the 2^nd Defendant, to assist in whatever way he could with the operation of the business of East Dragon HK, particularly when the 2^nd Defendant had recently been made redundant, and would therefore have been in need of work and available to do it.  Bearing in mind the relationship between the 1^st and 2^nd Defendant, it does not seem to me that the relative inexperience of the 2^nd Defendant would have been a matter that would have weighed particularly heavily with the 1^st Defendant.  I therefore do not regard this point as being a particularly strong point against the 2^nd Defendant’s case.

43.Mr Lee also argued that Mr Wong’s evidence was clear - that East Dragon HK had not employed the 2^nd Defendant.  However, as I have said, in cross-examination, Mr Wong did accept that he did not know what arrangements might have been made between the 1^st and 2^nd Defendant.

44.Criticisms were also directed at the quality of the evidence as to payment of salary to the 2^nd Defendant.  My attention was drawn to the fact that two of the payments that should have been made in the period prior to the formation of East Dragon HK could not be matched to entries in the 2^nd Defendant’s Dah Sing Bank account.  The 2^nd Defendant’s explanation that these were probably paid into another bank account was the subject of sceptical comment given his failure to obtain records for that other account.  While the evidence might have been more complete had the 2^nd Defendant done this, it seems to me that the evidence which is available does tend to bear out the 2^nd Defendant’s case.  The payments appear to have been made regularly, and were paid in consistently at the beginning of each month.  Although Ms Seah’s evidence that she understood that the 1^st Defendant was effecting payment of the 2^nd Defendant’s salary by directing their then employer to pay part of his salary to his father was also the subject of criticism on the basis that she was evasive, I do not think that criticism was justified.  As I have said, I found her to be an honest witness, who was trying to assist the court to the best of her recollection.  I do not think that the suggestion that she was not giving truthful evidence, made on the basis that it was unlikely that she would not have shared in the payment of any salary to the 2^nd Defendant, was justified.  In my view, her explanation, which was that it was envisaged that the 1^st Defendant would (as between himself and Ms Seah) have the substantial share in East Dragon HK appears to me to be a reasonable one.

45.Criticisms were also made of the evidence of salary payments after East Dragon HK was established.  My attention was drawn to the irregular nature of such payments, the fact that the amount of the payments did not match the salary and allowance which had allegedly been agreed, and the fact that Ms Seah said that the salary agreed was S$2,200 rather than HK$9,900.  However, it seems to me that Ms Seah’s evidence as to the manner of payment of the 2^nd Defendant’s salary, namely, that it was paid by way of regular monthly payments of S$2,200 to the 1^st Defendant at the end of each month, does fit in with the 2^nd Defendant’s case that he received payments from his son from time to time, when his son was in Hong Kong.  Given that the 1^st Defendant was based in Singapore, it is, I think, not particularly surprising for such an arrangement to have been adopted.  Given the arrangement, which I accept existed, I do not think that much can properly be made of the fact that the payments were received at irregular intervals, or that there might have been payments in advance, or earlier than strictly necessary, from time to time.  I is, I think, necessary to remember the relationship between the Defendants, and the fact that payments were being made at longer intervals.  Bearing this is mind, it is not particularly surprising that there was some element of advance payment.  As to the difference in the amount of the payments, it is true that there was usually an element of overpayment.  The 2^nd Defendant attributed this to his son reimbursing him for other expenses which he had incurred, in relation to mobile phone and long distance call charges, and other miscellaneous expenses, and I accept this explanation.  Even if this was not part of his salary, I see nothing surprising in the 1^st Defendant reimbursing the 2^nd Defendant in respect of expenses which he incurred in relation to the business of the East Dragon companies.  I do not think much turns on the difference between the currencies in which the salary was paid according to Ms Seah.  The Singapore dollar amount was, I think, the approximate equivalent of the Hong Kong dollar amount which the 2^nd Defendant said he was to be paid.  Given that the payments were being booked to East Dragon Singapore, it is not surprising that the amount would be booked in Singapore dollars.

46.Mr Lee also sought to cast doubt on the truth of the 2^nd Defendant’s account by reference to the fact that one of the payments (of HK$21,500 on 7 May 1999) was said by the 2^nd Defendant to have been made by his son directly into his account, apparently by cheque, whereas he had said in his witness statement that all these payments were paid in by himself.  I do not think that this minor discrepancy is particularly significant.

47.Finally, the fact that Ms Seah said that payments of salary in the amount of S$2,200 were made in October, November and December 1999, whereas the 2^nd Defendant said that he was only paid until September 1999 was also the subject of comment.  However, this only indicates that the 1^st Defendant did not make the corresponding payments to the 2^nd Defendant, as he should have done.

48.Mr Lee also pointed out that there did not appear to be any tax returns or employer’s returns issued by East Dragon HK.  That would appear to be the case, but I do not think that it outweighs the rest of the evidence, which to my mind does indicate that there was an arrangement by which the 2^nd Defendant was paid a salary and allowance for assisting with the business of the East Dragon companies.  At the end of the day, it is necessary to bear in mind the relationship between the 1^st and 2^nd Defendants, and the fact that the businesses in question appear to have been on a relatively small scale.  In these circumstances, it is not, I think, particularly surprising for matters to be handled in a relatively informal way, with less than complete documentation and records.  Although there might be some uncertainty as to by which company precisely the 2^nd Defendant was employed, I am satisfied that the 2^nd Defendant was at the material time employed under an arrangement whereby he was paid a salary of some HK$9,900 per month, to undertake various items of work on behalf of the East Dragon companies.  That being so, and given that the Shop premises appear to have been used in part at least for the business of those companies, it seems to me that he is more likely to have introduced the Plaintiff to the 1^st Defendant with a view to enabling the Plaintiff to enter into a contract with the 1^st Defendant or East Dragon HK (whether as a casual employee or an independent contractor in business on his own account), as opposed to having employed the Plaintiff himself.

49.Even if I had come to the conclusion that no formal employment relationship between the 2^nd Defendant and East Dragon HK (or either of the East Dragon companies, or the 1^st Defendant and/or Mr Wong and Ms Seah) had been made out, it seems to me that this would not have made a great deal of difference.  Whatever the precise nature of his relationship with them, the evidence clearly established that the role of the 2^nd Defendant in relation to the business of the East Dragon companies was not that of a principal, or owner or shareholder, of the businesses, but more of the nature of an employee’s role.  It seems clear that he was engaged in assisting with various administrative type jobs, whether liaising with suppliers, or making arrangements for shipments, and that he had a relationship similar to that of a servant or agent for the principals of the businesses.  That is a relationship which suggests the same conclusion as I have indicated in the previous paragraph, even in the absence of a proper employment contract.

50.I therefore consider that the 2^nd Defendant’s role in relation to the East Dragon businesses tends to support his contention that he was not himself an employer of the Plaintiff.

Was the 2^nd Defendant a decoration or construction contractor?

51.As for the question of whether or not the 2^nd Defendant was a decoration or construction contractor by trade, it seems to me that there is simply no evidence to suggest that he was.  Nothing in his employment history while in China suggests that he had any experience in this field.  Nor is there anything in his employment history after coming to Hong Kong to suggest that he had any experience of decorating or construction work.  It appears that from shortly after his arrival in Hong Kong, he worked continuously in the garment industry (with a brief interval when he returned to China for six months or so to try to start his own business in that industry), until his redundancy in February 1998.  Thereafter, he seems to have been mainly occupied with assisting the 1^st Defendant to set up East Dragon HK and thereafter in its business.

52.The only suggestion that the 2^nd Defendant might have been a contractor came from Mr Wong.  However, as I have noted, his evidence was only that this was something that he was told by the 1^st Defendant, and it was not something of which he had personal knowledge.  Moreover, although he suggested in his affirmation filed in the earlier employee’s compensation proceedings that the 2^nd Defendant had offered to undertake the dismantling and removal works at the Shop on his own account, he modified this evidence in cross-examination by saying that the gist of what was discussed was that the 2^nd Defendant would try to help by finding a contractor to carry out the work.  His suggestion that he actually paid something to the 2^nd Defendant was wholly unparticular and vague, and unsupported by any documentation, and I reject it.

53.Moreover, Mr Liu’s evidence, which I accept, was that the 2^nd Defendant had to ask him to introduce a contractor to carry out the work.  This supports the 2^nd Defendant’s case that he only assisted by looking for and introducing a contractor to the 1^st Defendant.  Moreover, if the 2^nd Defendant were in the trade himself, he would have no need to have approached Mr Liu for assistance in locating a contractor, since he could have taken up the work himself, or at any rate should have been in a position to locate a suitable workman for the task.  I also note that Mr Liu, who had known the 2^nd Defendant for some 10 years, said that the 2^nd Defendant was, so far as he knew, employed in a garment factory.

54.In these circumstances, I have no hesitation in finding that the 2^nd Defendant was not a contractor by trade.  This, I think, also tends to support the 2^nd Defendant’s case that he did not employ the Plaintiff.

What happened on 29 May 1999?

55.Turning to the events of 29 May 1999, there are, as I have noted, a number of differences between the accounts of the Plaintiff and the 2^nd Defendant.  Perhaps the major difference relates to the Plaintiff’s suggestion that the Defendant said that he had a decoration job to be done at the Hung Hom office, and that they went there together with Mr Wang and Mr Huang to take measurements to enable a quotation to be prepared.  This version of events was denied by the 2^nd Defendant, who said that he never mentioned any such job to the Plaintiff, but only mentioned the dismantling and removal works that were eventually undertaken, and that he asked the Plaintiff to meet the 1^st Defendant to sort out the details about this work, which the Plaintiff did.

56.I bear in mind that both the Plaintiff and the 2^nd Defendant are interested in the outcome of these proceedings.  However, I am satisfied, for the reasons explained below, that the version put forward by the 2^nd Defendant is to be preferred.

57.To my mind, the most important factor is the suggestion by the Plaintiff that the 2^nd Defendant did not mention any dismantling or demolition work at the meeting at McDonald’s but only mentioned a decoration job at the Hung Hom office.  I do not accept this version of events.  It seems clear that there was in fact no decoration work to be done at the Hung Hom office at that time.  Mr Wong confirmed that this was the case.  He said that the fitting out of the Hung Hom office had been substantially completed, with the exception of the installation of air conditioners and some glass partitioning, which was to be brought over from the Shop.  Mr Wong also said that on 1 June 1999, he had another contractor (a friend who dealt in air conditioners) at the Shop dismantling and removing the air conditioners there, and that they were taken to the Hung Hom office for installation there.  That being so, it is difficult to see what work there was to be done at the Hung Hom office that could have been offered to the Plaintiff.  If there was, as I find, no such work, it makes little sense for the 2^nd Defendant to have mentioned a non-existent job to the Plaintiff, but not to have mentioned the job which was in fact available.

58.Moreover, Mr Liu’s evidence was that when the 2^nd Defendant approached him for assistance in finding a contractor, the 2^nd Defendant mentioned only that his son’s company was moving, and that there were some dismantling and removal works to be done.  In cross-examination, he confirmed that nothing was mentioned about the new Hung Hom office.  This tends to confirm that there was no work to be done at the Hung Hom office that could have been offered to the Plaintiff.  Further, given that the 2^nd Defendant indicated the nature of the work that was available to Mr Liu for the purpose of enabling Mr Liu to look for someone to take it up, I would expect that when such a person was found, the 2^nd Defendant would tell him the same thing.  I can see no reason why the 2^nd Defendant would have told Mr Liu that the work involved dismantling and removals, but then tell the Plaintiff something completely different when he met him.

59.Further, the Plaintiff’s evidence as to the visit to the Hung Hom office was that another man, the 1^st Defendant, was there, moving things in.  It seems unlikely that the 1^st Defendant would have been in a position to move things in if there was still any significant fitting out work to be done.  The Plaintiff did not give any details as to what the work to be done at the Hung Hom office was, saying only rather vaguely that he took some measurements, and that the 2^nd Defendant mentioned his requirements, without giving details as to what those requirements were.

60.Given these factors, I am unable to accept the Plaintiff’s version of events.  Rejecting, as I do, his suggestion that the 2^nd Defendant mentioned only decoration works at the Hung Hom office, I also reject his suggestion that he visited the Hung Hom office for the purpose of taking measurements with a view to preparing a quotation for such work.

61.I therefore prefer the 2^nd Defendant’s version of what happened at the McDonald’s meeting.  Although Mr Lee suggested that this was made up, I do not agree.  The fact is that the only work available, for which the 2^nd Defendant was trying to find a contractor or worker on behalf of the 1^st Defendant and/or Mr Wong or East Dragon HK, was the work that was to be done at the Shop, and I can see no reason why he would not have told the Plaintiff about the work that was in fact available.  I also accept his evidence that the Plaintiff told him the approximate cost involved - although Mr Lee suggested that it was unlikely that the Plaintiff would have put forward a sum based only on a daily wage if he had to provide tools, I see nothing particularly surprising about this.  The Plaintiff was a construction worker, and it would not be surprising for him to have acquired tools of his own, which he would have available for use if necessary.  I further accept his evidence that he suggested that the Plaintiff should meet the 1^st Defendant to finalise the details, and that this was why the Plaintiff attended at the Hung Hom office.

62.Mr Lee suggested that the 2^nd Defendant’s version was unreliable, since he had not stated in his witness statements that he told the Plaintiff of the nature of the work to be done, although he said at trial that he did.  I do not think that this is a particularly major discrepancy.  In any event, the 2^nd Defendant had told this to Mr Liu, who would no doubt have mentioned it to Mr Wang, who brought in the Plaintiff.  Mr Lee also pointed out that the 2^nd Defendant did not mention having told the Plaintiff of the address of the Shop at this meeting, although he said at trial that he did.  Again, this is a relatively minor discrepancy, when set against the unlikelihood of the Plaintiff’s version of events, having regard to the underlying fact that there was simply no available work at the Hung Hom office.

63.Although Mr Huang’s statement does, in general terms, support the Plaintiff’s version of events, I attach little weight to it, given that he was not available to be cross-examined.  Moreover, it would in any event suffer from the same problem in relation to the fact that there was in fact no work to be done at the Hung Hom office, and thus no reason for the 2^nd Defendant to have suggested that there was.

64.Given that I accept the 2^nd Defendant’s version of events, it follows, I think, that the 2^nd Defendant was not the employer of the Plaintiff, having made it clear to the Plaintiff that the decision on whether or not to employ the Plaintiff was a matter for the 1^st Defendant, whom the 2^nd Defendant described to the Plaintiff as “the boss” of his company.

The events of 1 June 1999

65.It seems to me that the events of 1 June 1999 also support the 2^nd Defendant’s case.  Accepting, as I do, that the 2^nd Defendant was not a decorator by trade, it seems to me unlikely that he would have had the tools available to supply to the Plaintiff, as the Plaintiff claims.  More importantly, however, the Plaintiff’s own evidence is that when everyone was at the Shop, he discussed the question of his own remuneration solely with the 1^st Defendant, without the 2^nd Defendant taking any part in the discussion.  This seems to me to be a strong pointer against the 2^nd Defendant having been the employer of the Plaintiff.

Payment of wages to the Plaintiff by the 1^st Defendant

66.Finally, the fact that the Plaintiff actually received payment from the 1^st Defendant also tends to suggest that the latter, or East Dragon HK, was the employer of the Plaintiff rather than the 2^nd Defendant.  Although Mr Huang says in his statement that he was paid by the 2^nd Defendant through Mr Wang, he does not explain why he believes that any payment received through Mr Wang originated from the 2^nd Defendant, and I therefore do not put much store by this statement.

Conclusions in relation to employment of Plaintiff by 2^nd Defendant

67.For the foregoing reasons, I am satisfied that the 2^nd Defendant was not the employer of the Plaintiff in connection with the works which the Plaintiff was carrying out at the Shop.  While it may be that the Plaintiff was not an independent contractor, as he was working for a fixed wage, it does not follow that he must have been employed by the 2^nd Defendant, as opposed to the 1^st Defendant.  It follows from this finding that the claim against the 2^nd Defendant, insofar as it is based on negligence, breach of contract of employment, or breach of statutory duty under the Ordinance, fails.

Whether 2^nd Defendant liable for breach of the Regulations

68.So far as breach of statutory duty under the Regulations is concerned, it seems to me to follow from my conclusions as to the 2^nd Defendant not being the employer of the Plaintiff, and as to his not being engaged in the construction business by way of trade that he is not to be regarded as a “contractor” for the purposes of Regulation 38O of the Construction Sites (Safety) Regulations, since that term is defined in section 2 of the Factories and Industrial Undertakings Ordinance (Cap. 59) as “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 ...”.  In this case, I have found that the 2^nd Defendant was not engaged in carrying out such work by way of trade or business.  Nor did he carry out such work pursuant to a contract entered into with any other person.  All that he did was to locate the Plaintiff and introduce him to the 1^st Defendant, with whom the relevant contractual arrangements in relation to the carrying out of the work appear to have been made.  It also follows from the conclusions which I have reached that the 2^nd Defendant, not being a contractor, could not be regarded as being “responsible for the site” constituted by the Shop.

69.I therefore conclude that the claim against the 2^nd Defendant based on breach of the Regulations must also be rejected for these reasons.  I do not think it necessary to further lengthen this judgment by going on to consider the further arguments against liability under the Regulations advanced by Mr Cheung, which I have identified at paragraphs 33(2) and (3) above.  Nor is it necessary for me to consider how precisely the accident occurred, although on balance, I would have been prepared to accept the Plaintiff’s case on this.  However the accident occurred, it seems to me that the employer of the Plaintiff would be liable in respect of his injuries and losses arising therefrom.

70.The Plaintiff’s claim against the 2^nd Defendant is therefore dismissed.

Quantum

71.However, since interlocutory judgment has been entered against the 1^st Defendant, it remains necessary to quantify the Plaintiff’s loss and damages, and I propose to go on to do this as briefly as possible.

72.The Plaintiff was aged just under 54 years old at the date of the accident, and is now a little over 59 years of age.  As a result of the accident, he suffered a fracture of his right thigh.  He was admitted to Queen Elizabeth Hospital on the day of the accident, and underwent surgery for fixation of the fracture on 4 June 1999, in the course of which a screw was inserted in his thigh.  Following the operation, he was transferred to Kowloon Hospital for further treatment, until his discharge on 5 July 1999.  He received physiotherapy treatment at Kowloon Hospital, and after his discharge, had to use crutches for some eight months.  He continued to attend for physiotherapy between 2 August 1999 and 17 April 2002 at Queen Elizabeth Hospital.  He was given sick leave certificates to cover the period from 2 June 1999 until 10 May 2000, a period of just over 11 months.

73.Following the accident, the Plaintiff says that he was unable to return to his former occupation, as he could not lift heavy weights, and experienced pain in his right leg after standing or walking for any length of time.  The medical report of Dr Au Ka Kau confirms that he is now only capable of sedentary work, such as that of a watchman or clerk.  The Plaintiff says that he tried, through friends, to obtain a job as a watchman, but was unable to obtain any work until 1 November 2001, when he obtained a job as a watchman with Colliers Jardine Management Ltd, at a total monthly salary of HK$6,100.  He remained at this job until 12 June 2002, when he returned to China to look after his ailing mother.  He returned to Hong Kong in early December 2002, and was able to get another job as a watchman from 4 December 2002 onwards, at a lower salary of HK$5,000.  By contrast, the Plaintiff says that while he was working for Man Ping, his income averaged HK$15,200 per month, as he worked about 20 days a month at a daily wage of HK$720 (made up of a wage of HK$480 and overtime of HK$240 per day) and received a 13^th month payment of HK$9,600 each year.

74.So far as damages for pain, suffering and loss of amenities are concerned, I was cited a considerable number of cases as to the appropriate level at which the injury to the Plaintiff should be assessed.  Mr Lee submitted that it should be placed at the bottom end of the serious injury category, meriting an award of some HK$400,000.  Mr Cheung submitted that it fell below that category.  In a number of the cases cited by the Plaintiff (Yang Yi Chai v Cheng Kam Shing HCA No. 1788 of 1984; Ng Kam Chiu v Lai Yat Hung HCA No. A7735 of 1985, Tsang Yuk Ming v Choi Wing Hing [1991] 2 HKC 322 and Lee Ching Por v Ban Wu HCA No. A1524 of 1990), in which the injuries were assessed as falling at the bottom end of the serious injury category, the injuries appear to have been more severe and required bone replacement by stainless steel devices to be performed, or resulted in some deformity.  On the other hand, the authorities cited by Mr Cheung suggest that an injury of this nature falls below that category.  In my view, the Plaintiff’s injury falls slightly below the bottom end of the serious injury category, and I would award the sum of HK$375,000 under this head.

75.As for pre-trial loss of earnings, the Plaintiff produced no evidence to substantiate the level of earnings that he claimed to achieve when employed by Man Ping.  Those earnings, of some HK$720 per day, seem slightly on the high side, compared with the average wage of a worker in the construction industry, which according to the statistics produced by Mr Cheung was approximately HK$600 per day.  Doing the best that I can, I would be prepared to accept that the Plaintiff was earning approximately HK$650 per day, working (as he says) 20 days a month.  That gives a monthly income of HK$13,000.  As the Plaintiff was working on a casual basis, I see no reason why any annual bonus or double pay should be included.

76.The Plaintiff was awarded sick leave until 10 May 2000.  Thereafter, he says that he made efforts to obtain alternative employment, having attended about 8 to 10 job interviews before finally obtaining employment with Colliers Jardine Management Ltd on 1 November 2001.  I would agree with Mr Cheung that it would not be reasonable to award the Plaintiff full loss of earnings for a period of 16.5 months after the expiry of his sick leave, and that he could reasonably have been expected to obtain alternative employment before he eventually did.  However, I would be prepared to allow a period of some six months after expiry of the sick leave as a reasonable period within which the Plaintiff should have obtained alternative employment.  On this basis, the Plaintiff is entitled to full loss of earnings until 10 November 2000, a period of some 17.25 months.   This gives rise to an award of HK$224,250 (HK$13,000 x 17.25). 

77.Thereafter, there will be an award for partial loss of earnings, on the basis of a notional salary of HK$6,100 per month (the amount he earned with Colliers Jardine Management Ltd) until judgment, save for the period from 13 June 2002 until 3 December 2002 while he was away in China.  In my view, there is no basis for making any award for this period, during which the Plaintiff chose (although no doubt for good reasons) not to work.  The fact that he had no earnings during this period was caused, not by the accident, but by his decision to return to China to tend to his ailing mother.  Looked at in another way, even if the accident had not occurred, he would have earned nothing during this period.  As for the basis on which loss of earnings should be calculated after 4 December 2002, it seems to me that by the same reasoning, the cause of his having to take up lower paid employment was also his decision to leave his employment with Colliers Jardine Management Ltd to return to China, and this is not a matter that can be attributed to the accident.  I am therefore of the view that for this period too, partial loss of earnings should be calculated by reference to a notional salary as a watchman of HK$6,100.  This gives rise to further awards of HK$131,790 for the period to 13 June 2002 (19.1 months x (HK$13,000 - HK$6,100)) and HK$182,850 for the period from 4 December 2002 to the date of judgment (26.5 months x (HK$13,000 - HK$6,100)).

78.The total pre-trial loss of earnings will therefore be HK$538,890 (HK$224,250 + HK$131,790 + HK$182,850).

79.As for future loss of earnings, having regard to the fact that the Plaintiff is now aged a little over 59 years, I consider that a multiplier of 4 would be appropriate, having regard to the fact that construction work tends to be heavy work, and there must be some doubt as to whether he could actually have carried on working into his mid-sixties.  This gives rise to an award of HK$331,200.

80.So far as the cost of a future operation for the removal of the screw is concerned, I accept that the Plaintiff would undergo such an operation if he could afford it, and I am therefore prepared to award the sum of HK$12,000 for this item.

81.Finally, so far as the miscellaneous items of special damages are concerned, the only item in respect of which might be any debate is the claim for some HK$3,650 in respect of tonic foods, consisting of pork bones for making soup.  On balance, I would be prepared to award this item to the Plaintiff, and I therefore award the Plaintiff the additional sum of HK$7,056 in respect of these items.

82.I therefore quantify the damages to which the Plaintiff is entitled as against the 1^st Defendant as follows:-

(1)	Pain, suffering and loss of amenities	HK$375,000
(2)	Pre-trial loss of earnings	HK$538,890
(3)	Future loss of earnings	HK$331,200
(4)	Cost of future operation	HK$12,000
(5)	Other special damages	HK$7,056

Interest and costs

83.Interest will run on the award for pain, suffering and loss of amenities at 2% per annum from the date of the writ to the date of judgment, and on the pre-trial loss of earnings and other special damages at half the judgment rate from the date of the accident until the date of this judgment.  Thereafter, interest will accrue on the total sum payable at the judgment rate.

84.So far as costs are concerned, I make a costs order nisi that [to complete].

Mr Paul T T Lee instructed by Legal Aid Department, for the Plaintiff

Mr Earnest W H Cheung instructed by Messrs Lam & Partners, for 2^nd Defendant