Yu Lam v. Ma Chak Yin t/a Wai Kei Engineering Co and Another
Read the full judgment text of HCPI 342/2004 on BabelCite. This High Court CFI judgment was delivered on 22 March 2005.
1. The plaintiff’s claim is for damages for personal injuries caused by an accident which befell him on 12 July 2001 at a construction site. The 1 st defendant was the plaintiff’s employer and a subcontractor on the site. The 2 nd defendant was the main contractor.
Cited by 4 cases · Cites 2 cases
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HCPI 342/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.342 OF 2004 --------------------- BETWEEN
---------------------- Before : Deputy High Court Judge Muttrie in Court Dates of Hearing : 28 February 2005, 1-2 March 2005 Date of Judgment : 22 March 2005 ------------------------ JUDGMENT ------------------------ 1.The plaintiff’s claim is for damages for personal injuries caused by an accident which befell him on 12 July 2001 at a construction site. The 1st defendant was the plaintiff’s employer and a subcontractor on the site. The 2nd defendant was the main contractor. 2.The accident happened when the plaintiff walked on to an I-beam 30 cm wide, across a trench five metres deep, in order to retrieve a portable welding clamp, and fell off the I-beam into the trench. He suffered a fracture of the left lumbar transverse process and the right tibia, fibula and medial malleolus. LIABILITY 3.The plaintiff’s claim is founded on negligence, breach of statutory duty and breach of contract of employment (against the 1st defendant). At the trial, the defendants through counsel admitted liability subject to maintaining their allegations of contributory negligence, so the only issue on liability is whether and to what extent the plaintiff’s own negligence contributed to the accident. The plaintiff’s case is that it did not. The defendants’ case is that it did, because the plaintiff should either not have walked on the I-beam at all, or if he did, should have used a safety belt, which he could have obtained from the site office. 4.In Li Tak Foon and Li Tak Fun v. Chan Chu t/a Chan Chu Kee, HCPI 468/1995 Woo J said this :
5.It is to be noted here that there was a complete failure on the part of the defendants to comply with the statutory provisions of Regulation 38B(1) of the Construction Site (Safety) Regulations in that they failed to take adequate steps to prevent any person from falling from a height greater than two metres. The 2nd defendant was convicted of breach of this and other provisions of the Regulations on 14 March 2002 at Fanling Magistracy. 6.The only oral evidence as to what actually happened comes from the plaintiff himself. He adopted his written statement and gave oral evidence. He had also made a declaration to the Occupational Safety Officer of the Labour Department, and that was before the court, as was a statement by the 2nd defendant’s safety officer, Mr Ho, and also an accident investigation report by him. Mr Ho did not give evidence. 7.The scene of the accident was an open trench exposing a water main at the side of the Kam Tin Road. The trench was 4.57 metres wide and five metres deep with metal-clad sides and cross-bracing. There was a 30 cm x 30 cm metal I-beam across the trench. To this I-beam was welded a U-shaped metal frame which supported the 1,400 mm water main pipe running along inside the trench and below the I-beam. One of the legs of the frame was connected by a metal sling to the bucket of an excavator standing at the end of the trench, but the sling was not supporting the frame leg, which had already been welded to the I-beam. There was nothing to stop a person who walked on the beam from falling into the trench and no safety netting beneath the beam. 8.Sitting in the excavator cab was the foreman in charge of the site, Mr Koo. According to the plaintiff, Mr Koo had welded the frame to the I-beam and had walked on the I-beam to do so. A portable welding clamp remained on the I-beam. Mr Koo told the plaintiff to retrieve it. There were no ladders long enough to reach up to the I-beam from the bottom of the trench. To walk on the I-beam was the only practical means to retrieve the clamp and the I-beam was wider than those normally used for pipe-laying work, because it had to support a large pipe. So he walked on to the I-beam in order to retrieve the clamp, lost his footing and fell into the trench. He does not now know why he lost his footing. 9.It appears from the plaintiff’s statement to the Occupational Safety Officer that the clamp was simply placed on the I-beam about 1.8 metres from the side of the trench. In the witness statement, the plaintiff said that the power cable of the clamp was wound round the projecting part of one of the vertical legs of the U-shaped frame. In oral evidence, he said that the insulated handle of the clamp was hooked through a hole in the leg, the power cable was attached to a welding transformer and the power was on. He could not therefore simply retrieve the clamp by pulling on the cable; he had to walk on to the I-beam to reach it and unhook it. 10.The defendant’s safety officer, Mr Chow said that safety belts were available in the site office. The plaintiff could and should have used one of these. The belt came attached to a line about four to five feet long with a snap shackle on the end; the plaintiff could have looped the line loosely around the I-beam so that it could move with him as he walked out along the I-beam. 11.The plaintiff said that he had attended safety courses organised by the defendants. He knew about safety belts, although according to him the defendants did not provide any, and he knew that it was safer to use a safety belt or harness when working at height. He knew that there was a safety officer and a site office on site. It was put to him that he should have asked for a safety belt or harness; but his answer was that, even if he had had a belt, there was nothing to which he could attach it. If he had attached it to the side of the trench, he could not have reached the clamp. He did not agree that he could have looped the line round the I-beam. In re-examination he said that he had been told to attach any safety line above, and not below him. 12.The accident investigation report by Mr Ho shows that the plaintiff was preparing to install a guardrail at the side of the trench. When he walked near the trench he suddenly lost balance and fell in. It is not clear how Mr Ho got this information, but in any event I think it must be disregarded. The 2nd defendant pleaded guilty at Fanling Magistracy to an offence of failing to take adequate steps to prevent a person on the site from falling from a height of two metres or more, and admitted facts which showed that the plaintiff had fallen from the I-beam, and the defendants’ position in this court has been the same. 13.I accept that in order to retrieve the clamp, the plaintiff had to go out on to the I-beam. That is what he was instructed to do. There was no other practical way to retrieve the clamp. He had seen the foreman himself walk on the I-beam. 14.It would not have been practical for the plaintiff to go and ask for a safety belt, even if he had thought of that; he could only have looped it round the beam and a little imagination shows that that itself would have been dangerous, because snapping the shackle to the line would have created a noose which might have jammed and hampered the plaintiff as he moved on the I-beam. The loop would have had to be at least four feet in circumference, to go round the I-beam; if the line was only four to five feet long it would have been impossible for the plaintiff to stand while wearing the waist belt. If, as counsel has suggested (for there is no evidence on this point) there was some kind of webbing extension to the belt, to which the line was attached the effect would still have been that the plaintiff would have had to concentrate on keeping the line and the loop free, and not tripping over them, with the obvious danger that that concentration might affect his balance. It was also suggested that the plaintiff should have sat astride the beam but I do not see that the plaintiff could have been expected to take that course especially since, on his own evidence, he had seen the foreman Koo walk on the beam. 15.The plaintiff was placed in danger by Mr Koo’s instruction to perform a task that was inherently dangerous. He could not have refused to do it. There was no other way to retrieve the clamp than by walking on the I-beam. There was no practical way in which the plaintiff could have made the task safer for himself, even if it was his duty to do so. I am satisfied that there was no contributory negligence on his part. QUANTUM 16.The plaintiff was born on 9 December 1954 and was 46 years old at the date of the accident and 50 at the date of trial. It is not in dispute that he had worked for the 1st defendant at this and other sites for about four and a half months, as a general labourer with a wage of $600 per day. 17.The major dispute is on the medical evidence and I will come to this below. The plaintiff's case is that because of continuing disability caused by the accident he is unable to work as a construction site worker any more. He is only fit for light work, such as that of a caretaker, watchman or filling station attendant. But he cannot find such work. The defendants agree that the plaintiff is not fit to return to his pre-accident employment, but say that this is because of a pre-existing condition. Further, a discount should be given because of the plaintiff’s pre-accident condition, caused in part by earlier injuries. There is also a dispute as to the plaintiff’s monthly earnings for calculation of pre-trial and post-trial loss. I will deal with this first. 18.The plaintiff’s claim is laid on the basis that he was earning $14,400 per month, i.e. working 24 days per month. The defendants’ case is that a proper estimate of the days worked, taking into account public holidays and inclement weather causing work to stop, is 20 days per month. 19.It is not in dispute that the defendants’ employees worked every day except Sundays, public holidays and days when work could not be done because of inclement weather. According to Mr Chow the employees would have, in addition to the statutory holidays at the Chinese New Year, a further five to seven days off. 20.The real dispute relates to the time off for inclement weather. The plaintiff accepts that this did affect his working days. He says in evidence that he would normally have worked 22 or 23 days per month, taking this and the public holidays into account. If he turned up for work, and the work was “rained off” and did not start, he would only be paid travelling expenses for the day; if the work was rained off after it started, he would get half a day’s pay and if it was rained off in the afternoon he would get the full day’s pay. However, ultimately under cross-examination he answered counsel saying “if you say it was 20 days, it was 20 days.” 21.Attendance records for the Kam Tin Road site for the month pre-accident show very few days worked; but the plaintiff says, and there is no evidence to contradict him, that he also had to work for the defendants at a site at Repulse Bay Road on the days when he was not working at the Kam Tin Road site. 22.The 2nd defendant in its Form 2 showed the plaintiff’s wages for the month before the accident as $14,400 but the average days worked by the plaintiff as 22 per month and the average for the past 12 months, or the total period of employment if less, as $13,800 per month, which would equal 23 days per month worked. 23.The 2nd defendant produced, at the last minute, records of extensions of time granted for inclement weather at the Kam Tin Road site by the employer, the Highways Department (Exhibit D1). Mr Wong for the defendant has calculated, and I accept it, that figures given would equate to an average of 4.13 days off per month for inclement weather. This does not particularly assist the defendants, however, because as I have indicated there is nothing to contradict the plaintiff’s evidence of working at Repulse Bay Road as well as at Kam Tin Road. Further the figure has to be looked at in the light of the plaintiff’s evidence that he could still be paid, if only for half a day, on days when the work was rained off after it started. 24.Accepting that the defendants’ employees worked no Sundays and had 11 days’ statutory holidays plus a further six or seven days at Chinese New Year, that would give an average working month of a little over 24 days. This agrees with what the 2nd defendant certified in Form 2, before applying a reduction of one day for inclement weather so as to show the plaintiff’s earnings as $13,800 per month. The best evidence comes from the Form 2. There is no very cogent evidence that the days worked would be less than 23 or the wages less than $13,800. The plaintiff’s own rather despairing admission of “if you say it is 20, then it is 20” really only shows uncertainty. I will take the days worked by the plaintiff per month as 23 and his monthly wage, for the purposes of calculating loss of earnings, as $13,800. MEDICAL EVIDENCE 25.The plaintiff was admitted to Northern District Hospital on the 12 July 2001. X-rays showed new fractures of the right tibia and fibula and old fractures of the same bones at a more distal location with the plate and screws that were used as fixation devices for that injury still in situ. There was also evidence of fractures of the left transverse process of the L3 vertebra, and the right medial malleolus. The plaintiff underwent an operation on the same day. He was transferred to Tai Po Hospital on 2 August 2001 and discharged home on 22 August 2001. He had a further operation on 6 September 2002 for removal of the locking screws of the right tibia fracture. At this stage it was found that the L3 transverse process had healed. The plaintiff was granted sick leave from the period from 12 July 2001 to 25 August 2003. He underwent physiotherapy between November 2001 and December 2002. 26.The plaintiff had a history of fractures of the right tibia and fibula with operations done in the United Christian Hospital about 10 years before the accident which gave rise to these proceedings. He also suffered a back sprain in about 1999; he told the expert witnesses about this. THE PLAINTIFF’S EVIDENCE 27.The plaintiff’s own evidence of his condition after the accident is that he still suffers pain and swelling in the right leg and pain in the back. He cannot endure the periods of standing, heavy lifting, carrying and squatting, which construction site work requires and so he is unable to return to his pre-accident occupation. He has not tried to get work as an office assistant because he cannot speak English. He once asked for work at a filling station without success. He has obtained a watchman’s card and has tried to get work as a caretaker or watchman but was asked, since he is quite a big man, why he wanted to work as a caretaker; and when he explained that he had been injured, he was told that there was no work for him. 28.The plaintiff says that he came to Hong Kong in 1980. Before that, it he worked as a farmer. After half a year in a factory, he worked in construction sites in Hong Kong as a general labourer up to 1987 when he suffered an accident at work. He was off work for two years and was assessed as having about 20% disability. He could not remember the exact figure. He received compensation but he could not remember the money figure either. From 1989 onwards the plaintiff worked as an odd-job worker in a factory, sweeping floors and boiling water. He thought that he earned about $7,000 or $8,000 per month in this period. He returned to construction site work in 1998 and in the course of this work he suffered a sprained back in 1999. As a result of this injury he was assessed as having 3% or 4% disability by the Assessment Board (he was not sure of the figure) and received compensation of about $40,000. He was able to return to work and did return to work as a construction site labourer after that. EXPERT EVIDENCE 29.The plaintiff’s expert was Dr David Cheng. He saw the plaintiff in December 2003. His opinion was that the fracture had healed with a slight valgus deformity of the ankle joint. There was also wasting of muscles and stiffness of the ankles. Whilst these complaints may improve with time, there was likely to be residual impairment. The plaintiff’s continuing complaints of pain and swelling in the right leg after walking, and back pain and paraesthesia were justified. The fracture of the L3 transverse process was likely to cause some residual aches and pains. 30.Dr Cheng suggested a 12% lower limb impairment and 7% whole person impairment. For the spinal fracture, he suggested a 3% whole person impairment, giving a total of 10% whole person impairment. These figures are, of course, taken from the American Medical Association guidelines. He also gave figures for loss of earning capacity but they are not relevant here. Dr Cheng said that although the plaintiff had sustained a fracture of both legs in 1987, he had recovered well and it would be fair to say that as of 1997, when he resumed work as a construction worker, and certainly in July 2001 the plaintiff was in a good state of health and fully capable of working as a construction site worker. The accident was probably the sole cause of his present condition. There was no medical reason for apportionment for the 1987 injury. 31.Dr Cheng said that the sick leave period of two years was reasonable. The plaintiff wanted to have the implants removed. This should cost about $35,000 and require a month off work. 32.Dr Cheng said that it was not advisable for the plaintiff to resume pre-accident work. He is not fit for heavy manual work. He suggested work of a light to moderate nature such as a filling station worker, messenger, caretaker, watchman etc. It may be possible that after some time the plaintiff would feel fit enough to resume some heavy work as he had done after his injury in 1987. 33.The defendants’ expert was Dr Chun Siu Yeung. He saw the plaintiff in June 2004. His diagnosis was similar to that of Dr Cheng but he took the view that the residual stiffness of the ankle was partly related to the old fracture and partly to the fractured medial malleolus. The right side leg muscle wasting was partly related to the old and partly to the new fractures. X-rays showed advanced degenerative changes in the lumbar spine but an anatomic union of the fracture of the L3. The plaintiff’s continuing back symptoms were more likely to be related to his degenerative changes in the lumbar spine rather than to the healed fracture at L3. The impairment related to that healed fracture was insignificant. 34.Dr Chun assessed the plaintiff as having a 10% impairment of the right lower limb arising from the new leg fractures. He said that a reasonable period of sick leave would have been about 14 months. The L3 fracture should have healed in about six weeks and the requirement for physiotherapy for back pain thereafter should be related to the degenerative lumbar spine rather than the fracture. The degenerative changes were not caused by the fracture. Dr Chun agreed with Dr Cheng that the plaintiff should not return to construction site work. However, his view was that if it were for the leg fractures alone, without considering the degenerative lumbar spine, the plaintiff should be able to return to work as a construction site labourer. The healed fracture at L3 does not impair him from work. However in view of the marked degeneration of the lumbar spine, frequent heavy manual labouring is not suitable and not advisable. The plaintiff should take lighter work such as casual construction site work, or that of a cleaner, filling station worker, watchman or office assistant. 35.Dr Chun took the view that the implants in the bones could be left alone. There was no specific medical reason warranting their absolute need for removal. He agreed however that the estimate of costs given by Dr Cheng for such an operation was reasonable. 36.Dr Cheng in September 2004 commented on Dr Chun’s report. He noted that he had himself got the fractures the wrong way round, i.e. had assumed the new fractures to be lower on the limb, rather than higher, but said that this made no difference to his opinion. He did not entirely agree with Dr Chun that, but for the back injury, the plaintiff could return to work. As to the L3 fracture he said that it initiated and aggravated the back to become symptomatic. He could not separate the back and leg injuries for the purpose of the assessment. 37.Dr Chun in a further report dated 1 February 2005 undertook a rather complicated assessment of percentages referable to the different fractures in his first report with particular reference to loss of earning capacity. This was of little assistance. So far as the back was concerned he said that it was quite clear that the plaintiff had symptomatic low back injury after 1999 with residual symptoms and permanent impairment otherwise he would not have been assessed with 4% disability. He said that even if the new injury had not occurred the plaintiff would have had intermittent symptoms and would sooner or later have had to change to lighter work, following the back sprain in 1999. Dr Cheng further commented on this report and disagreed that the back had to be symptomatic after 1999. 38.The experts gave oral evidence and largely maintained their views. They agreed that everyone degenerates with age and that it is common for manual workers of the plaintiff’s age to have degenerative changes to the spine. They agreed that in some cases those changes could be asymptomatic. Dr Cheng, based on what the plaintiff told him, thought there was nothing clinically wrong with the plaintiff’s back before the subject accident. Dr Chun however did not believe the plaintiff’s story on this. 39.Dr Chun explained that he used the terms “disability” and “permanent loss of earning capacity” interchangeably, as did all Assessment Board doctors. He had taken the view he did of the plaintiff’s back injury, and had not believed the plaintiff that his back was asymptomatic before the accident, because of the Assessment Board figure of 4% reported by the plaintiff. He had, however, not commented in his report that he did not believe the plaintiff. He ultimately agreed that if a plaintiff with degenerative changes suffered an accident like that of the plaintiff it might trigger back pain, which was not there before. In that case it would be fair to accept that the back pain, and hence the physiotherapy treatment given for it, had been caused by the accident. Evaluation 40.The major dispute between the experts relates to the causation of the plaintiff’s present disabilities, particularly the back pain. Having heard the experts I prefer the view taken by Dr Cheng. There is a degree of inconsistency in what Dr Chun says about the back pain. In his original report he never commented that the plaintiff must have had a disability caused by the 1999 sprain; that only came later; and if he had really disbelieved the plaintiff’s history he would surely have mentioned that in the first report. 41.There is nothing in the plaintiff’s evidence to suggest that he had any difficulty in working as a construction site labourer before 12 July 2001, arising from the deformity caused by the earlier leg fractures, or from the back sprain in 1999 or from the degenerative changes to the lumbar spine. He did not give either expert any history of such difficulties. Dr Chun’s assumption that there must have been symptoms seems to be based entirely on the fact of the Board assessment in 1999. There is no doubt that in fact the accident has caused the plaintiff’s current medical condition and inability to do heavy work. Nevertheless there was a pre-existing condition and allowance must be made for this. 42.In Chan Kam Hoi v. Dragages et Travaux Publics, [1998] 2 HKLRD 958 at 965 E-F, Mortimer VP said :
43.There is really nothing to suggest any likelihood that if the subject accident had not happened, the plaintiff would have had to change to lighter work before the date of the trial. As to whether the plaintiff’s working life would have been shortened by the degenerative changes in any event if the accident had not happened, it seems likely that it would. The difficulty lies in knowing by how much. Dr Chun’s view was of course that the plaintiff, even without the accident, would have been well advised to seek lighter work, so as to protect his degenerated back. As to when the plaintiff would actually have to stop doing heavy work Dr Chun said that this was difficult to assess, but put it at age 55 or 60. Dr Cheng did not disagree when this was put to him because, as he put it, there was simply no way to know. In the circumstances, I will take it that the plaintiff would, but for the accident, have been able to continue as a general labourer in a construction site up to the age of 60 and will apply a multiplier in respect of post-trial loss of earnings on that basis. Special damages 44.The plaintiff’s claim for medical expenses is $7,822, and that for travelling expenses is $7,147.20, and these figures are agreed. 45.There is a claim for tonic food of $25,000. This was reduced to $5,000 at trial. In the light of the judgment in King Light Industrial Ltd v. Lo Wai Keung [1994] 3 HKC 54, this is the correct figure and will be awarded. Loss of earnings 46.The plaintiff has been unable to find work, although I accept that he can now do light work such as that of a watchman, messenger or filling station attendant. His notional possible earnings are assessed by his counsel at $5,500 per month. The only figures which might assist, are the figures of the average monthly salaries obtained from the Census and Statistics Department. These give figures for a general worker in September 2003 of $7,427 and in September 2004 of $7,226. At the bottom end of the scale income was the general cleaner who, at those periods, would have earned respectively $5,141 or $5,209. There is nothing to contradict the plaintiff’s evidence that he has sought but has been unable to find work. He says that he is turned down every time, once the potential employer finds that he has been injured. So his inability to find work must, to some extent, be caused by the accident. I think that, at the most menial end of the market, the plaintiff should be able to find work even though a potential employer knows of his injuries. I will therefore take it that he is now able to earn, and has since August 2003 been able to earn $5,500 per month. Pre-trial loss of earnings 47.I take the pre-trial period as 45 months. I have accepted the monthly earnings at $13,800. The total for the pre-trial months is therefore $621,000. To this falls to be added MPF at 5%, i.e. $31,050. I accept Dr Cheng’s evidence that the sick leave period of 25½ months granted to the plaintiff up to August 2003 was appropriate. This means that notionally, for a period of 19½ months the plaintiff could have earned $5,500 per month and this amount, i.e. $107,250 plus 5% in respect of MPF, i.e. 5,362.50 must be deducted. The total pre-trial loss is therefore $539,437.50. Post-trial loss of earnings 48.The plaintiff has put forward a multiplier of seven to take into account the likelihood that the plaintiff would not work past the age of 60. The defendants appear to accept that figure for working until that age subject to counsel’s submissions as to discount for pre-existing condition. I accept the multiplier of seven. The post-trial loss will therefore be $1,159,200 plus MPF of $57,960 minus the notional earnings at $5,500 plus MPF for the same period, i.e. $486,315; this gives a total of $730,845. Loss of earning capacity 49.This is agreed at $35,000.00. Cost of future surgery 50.While Dr Chun says that there is no medical necessity for this, the metal pins are in the plaintiff’s bones because of the accident, and in nature they should not be there. I do not see why they should not be taken out. I will allow this and the necessary sick leave at a total of $42,500. PSLA 51.The plaintiff argues that there should be a starting point of $500,000 and accepts that there should be a small discount of $50,000 for the existing disability. The defendant starts at $300,000 and argues for a much greater discount. I think that the higher figure is more appropriate given the seriousness of the injury and the continuing disability but more regard must be had to the pre-existing condition of the leg. The deformity caused by the earlier injury was rather greater; 10% as against 4% for this injury. It seems to me that there should be a discount of 20%. I will award $400,000 for PSLA. 52.The final award is as follows :
JUDGMENT 53..There will be a final judgment in favour of the plaintiff for $1,382,323.70 with interest at 2% on the figure of $400,000 for pain, suffering and loss or amenity from the date of the Writ to the date of judgment and on the special damages and pre-trial loss of earnings at half the judgment rate from the date of the accident, and costs to be taxed if not agreed. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. Since the judgment is to be handed down the costs order will be nisi.
Mr Neal Clough, instructed by Department of Justice, assigned by Director of Legal Aid, for the Plaintiff Mr Charles Wong, instructed by Messrs Y.C. Lee, Pang & Kwok, for the 1st and 2nd Defendants |
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