Shah Nisar v. Wai Kit Engineering Co Ltd and Others
Read the full judgment text of HCPI 1092/2003 on BabelCite. This High Court CFI judgment was delivered on 11 April 2005.
1. The plaintiff’s claim against the defendants is for damages for personal injuries sustained by him on 17 July 2003 in the course of employment at what was then a construction site at Olympic Station, Hoi Fan Road, Kowloon, Hong Kong (“the site”).
Cited by 10 cases
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HCPI 1092/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1092 OF 2003 ______________________ BETWEEN
______________________ Before : Hon Sakhrani J in Court Date of Hearing : 17-18, 21, 23 and 24 February 2005 Date of Judgment : 11 April 2005 ______________________ J U D G M E N T ______________________ 1.The plaintiff’s claim against the defendants is for damages for personal injuries sustained by him on 17 July 2003 in the course of employment at what was then a construction site at Olympic Station, Hoi Fan Road, Kowloon, Hong Kong (“the site”). 2.At the material time the plaintiff was employed by the 1st defendant as a steel bender at the site. The principal contractor of the site was the 3rd defendant. The 2nd defendant was the sub-contractor of the 3rd defendant. The 1st defendant was in turn the 2nd defendant’s sub-contractor. 3.The plaintiff’s case is that on 17 July 2003 in the course of his employment at the site he was instructed to carry 2 boxes of steel wires weighing approximately 30 kgs each. In the course of carrying the 2 boxes he fell when walking up a wooden plank placed on a staircase at the site causing him to sustain personal injuries. The plaintiff claims damages for negligence and breach of statutory duty. 4.Liability and the quantum of damages are disputed. Liability 5.The plaintiff was born on 2 July 1975 in Pakistan and came to Hong Kong in about 1994. He was 28 years old at the time of the accident. He is now almost 30 years old. 6.Prior to working for the 1st defendant he had worked as a bamboo scaffolder and rigger in construction sites. 7.In about June 2002 he started working for the 1st defendant. 8.The plaintiff started working at the site in or about January 2003 as a steel bender. His duties included carrying a steel bar with another co-worker to a cutting machine for the machine operator to cut the steel bar into suitable sizes. He was also required to carry boxes of steel wires from an area where they were stored to the place where they would be required at the site. 9.The plaintiff said that on 17 July 2003 he was working in a gang of 3 persons under the supervision of Ah Ping. Ah Ping is the defence witness Ng Ping. At about 5.15 pm on 17 July 2003 he and his colleague Ah Kin were asked by Ng Ping to carry boxes of steel wires from the storage area in Tower 1 to the area where they were working in Tower 9 at the site. The steel wires were required for the following day’s work and were to be used to connect reinforcing bars at suitable places. 10.The plaintiff said that he was told by Ng Ping to carry 2 boxes of steel wires each weighing about 30 kgs and he was accompanying his colleague Ah Kin who only carried one box. 11.The defendant’s case is that the plaintiff was only carrying 1 box of steel wires and that workers were not asked to carry 2 boxes at a time. This is a dispute of fact between the parties. 12.The plaintiff further said that having picked up the boxes from the storage area he proceeded to Tower 9 through Tower 3 following his colleague Ah Kin who was in front of him. The route taken was the one that he and other workers had taken and was the shortest route to the area where he was going, although there was another longer route. 13.The plaintiff said that they had to climb up a staircase which he said was depicted in the photographs at pages 318 to 320 of Bundle (2). The photographs were taken about 3 to 4 months after the accident. He said that the handrails shown in the photographs were not on the staircase at the time of the accident. He also said that there was a wooden plank on the staircase, the same as that shown in the photographs at pages 317 and 320 of Bundle (2) and the plank was in a similar position as shown in the photographs. The plank was a loose wooden plank not fixed in any way but just placed on the staircase. He said that he climbed up the plank with the 2 boxes on his shoulder and whilst he was climbing the plank it shook a little and he fell down. He said that the plank had some sand and small stones on it. The plank was also cut at an angle as that shown in the photograph at page 317 of Bundle (2). 14.The plaintiff said that when he reached the staircase Ah Kin had already reached the top of the stairs and he was 2 or 3 steps behind Ah Kin. When he reached the point about 2 to 3 steps from the top he lost his balance and fell down to the bottom of the plank. 15.The 3rd defendant’s safety officer who was stationed at the site Poon Kwan Ling (“Poon”) gave evidence that when he went up to the place of the accident after the plaintiff fell he observed that there was a plank there on the staircase in the middle. It is clear from his evidence that the plank did not cover the whole staircase but therewere small gaps on both sides of the plank. He said in evidence that the plank shown in the photograph at page 320 of Bundle (2) was more or less like the plank he saw on the staircase immediately after the accident when he went to the scene. He also saw sand on the plank at the time but not large pieces of debris. It seems that the plank had been placed on the staircase for the use of cement workers with wheelbarrows to climb up the staircase using the plank. 16.It seems to me, and I so find, that wooden planks were placed on staircases in the site from time to time. These were also used by workers at the site when climbing the staircase. The plank placed on the staircase where the accident happened is shown in the photographs taken by the plaintiff after the accident. The photograph at page 321 of Bundle (2) also shows a plank placed on another staircase, not the staircase that the plaintiff fell from at the time of the accident. The photographs show that at the time the photographs were taken 3 to 4 months after the accident there was a wooden plank placed on two different staircases at the site. 17.There can be no doubt that it was unsafe for a worker to climb up the staircase using the plank whilst carrying a heavy load. Poon himself acknowledged that it would be unsafe to walk on a wooden plank as that shown at page 320 of Bundle (2). 18.The defendants relied on a statement taken by Poon from the plaintiff on 20 August 2003. The statement is a narrative of an interview in Cantonese. There is a dispute of fact as to who was present when this statement was taken. On 20 August 2003 the plaintiff went to the site with Mohammed Amjad (“Amjad”) who is a solicitor’s clerk and an interpreter. He accompanied the plaintiff as the plaintiff wanted to get his disability payments which he had not received. On that occasion the plaintiff was told that he would get his payments after he gave a statement. The plaintiff’s case is that Amjad was not present when the plaintiff was interviewed. This is confirmed by the plaintiff and Amjad who also gave evidence. 19.Ho Chung Hung (“Ho”), the 1st defendant’s foreman at the site and Poon, however, both said that Amjad was there throughout the interview. On this dispute of fact I prefer the evidence of the plaintiff and Amjad to the evidence of Ho and Poon. I find that Amjad was not there during the interview with the plaintiff. If he had been there it would have been natural for the interviewer to ask him to sign as a witness on the document but that was not done. I do not believe them when they said that Amjad was present during the interview. 20.The interview was conducted in Cantonese as the plaintiff did not fully understand English. The plaintiff said that he spoke in broken Cantonese using hand gestures but Ho and Poon both said that he spoke Cantonese well enough to communicate with them. 21.Although I accept that the plaintiff did understand some Cantonese, I do not believe that he was fluent in Cantonese. He was there to collect his disability payments and he was told that he would be paid after he gave a statement. I find that he did as he was told and tried his best to give his account of the events in broken Cantonese and with his hand gestures. 22.The plaintiff is recorded in the statement as having told the interviewer that he and his co-worker were each carrying 1 box of steel wires at the time of the accident. I do not place any weight on this part of the statement. This is contrary to the evidence of the plaintiff and Nishan Singh whose evidence I accept. 23.However, the plaintiff did accept in evidence that he did mention what is recorded in the statement about him speeding up. The relevant part of the statement is as follows :
24.He accepted that he did mention this to the interviewer. He also said what he told them was true. 25.Ng Ping denied that he asked the plaintiff to carry 2 boxes. He also denied that sometimes workers were asked to carry 2 boxes. I have no hesitation in preferring the evidence of Nishan Singh and the plaintiff to the evidence of Ng Ping on this dispute of fact. 26.Nishan Singh also gave evidence that he himself normally had to carry 2 boxes. I believe him. 27.I find that the plaintiff was instructed to carry 2 boxes of steel wires shortly before the accident. This was a heavy load of about 60 kgs. His evidence is supported by the evidence of Nishan Singh who saw him carry 2 boxes shortly before the accident. 28.The plaintiff said that he carried the 2 boxes on his shoulder. Ng Ping confirmed that workers at the site carried boxes of steel wires on their shoulders. Both the plaintiff and Nishan Singh said that it was normal for workers to carry the boxes on their shoulder. It seems to me that this means of carrying the boxes on the shoulder instead on at waist level at the site was condoned by the supervisor Ng Ping and hence by the plaintiff’s employer namely, the 1st defendant. 29.Ng Ping confirmed in evidence that a wooden plank had been placed along the staircase for a long time and had not been moved. However, he said that the wooden plank at the staircase was very wide covering the whole staircase completely and the steps could not be seen. He said that he had not seen wooden planks at the site as those shown in the photographs at pages 317, 318 and 321 of Bundle (2). I do not believe him. His evidence is contradicted by the evidence of Poon and the evidence of the plaintiff and Nishan Singh. 30.Ho, the foreman of the 1st defendant at the site, who also a safety supervisor gave evidence that he went to the scene after it had been cordoned off. At that time there was no wooden plank on the stairs but one placed at the side of the wall. He said that the wooden plank and the scene of the accident was not as depicted in the photographs at page 317, 318 and 320 of Bundle (2). However, the plaintiff and Nishan Singh were never challenged in cross-examination as to where the accident occurred. Ho It was never put to the plaintiff or Nishan Singh in cross-examination that the staircase in the photographs at those pages was not the staircase that the plaintiff was climbing when he fell from. On this dispute of fact, I prefer the evidence of the plaintiff and Nishan Singh to that of Ho. 31.Ho also said that he saw wooden planks on the site on many occasions. If no one was using it he would move the plank aside. If someone was pushing a wheelbarrow using the plank he would not tamper with the plank because somebody was using it. He confirmed, however, that a wooden plank should not be placed on a staircase in a slanted position because people would slip on it. 32.I find that the plaintiff fell when he was carrying 2 boxes of steel wires. He was carrying a load of approximately 60 kgs on his shoulder. That was much too heavy a load for a worker to carry safely by himself. 33.The plaintiff also said that he was not provided with safety shoes for use at the site. It seems that he had signed a document showing that he had been issued with safety shoes by the 3rd defendant but the plaintiff said that he was not provided with the same. I believe him. 34.There can be no dispute that at common law the 1st defendant as the plaintiff’s employer had a duty to provide him with a safe system of work and a safe place of work. The employer had to provide him with a safe means of access and appropriate safety equipment as well. 35.The 1st defendant, as the employer, has to provide the plaintiff, its employee, with a safe means of access. The route taken for transporting the 2 boxes of wires was the one he always took even when he was with his supervisor Ng Ping. I find that there was a wooden plank at that time on the staircase as shown in the photographs at pages 318 to 320 of Bundle (2). I believe the plaintiff and accept his evidence. I also find that there was sand on the plank at the time. Poon also said that he saw sand on the plank when he went to the scene immediately after the accident. 36.I find that the plaintiff was not provided with safety shoes despite the fact that he signed a document indicating that he had been supplied with the same. 37.I have no hesitation in finding that the means of access was unsafe as the wooden plank on the staircase was unfixed and loose. It also had sand on it. The safety officers Poon and Ho both acknowledged that it was unsafe for workers to walk on the wooden plank placed on staircases at the site. 38.The plaintiff fell because the means of access was unsafe. I find that the 1st defendant as his employer failed in its duty of care to provide a safe means of access at the site. 39.The 1st defendant as his employer also failed to provide the plaintiff with a safe place of work. 40.The 1st defendant also failed to provide a safe system of work as the plaintiff was required to carry the heavy load of 2 boxes of steel wires. 41.I find that the accident was caused by the breach of duty on the part of the 1st defendant. 42.Regulation 38A of the Construction Sites (Safety) Regulations provides as follows :
43.I am satisfied that the 3rd defendant as the contractor responsible for the site was also in breach of Regulation 38A. It failed to ensure that every place of work on the site was kept safe. It also failed to ensure adequate safe access to and egress from every place of work. The wooden plank placed on the staircase from which the plaintiff fell was unsafe as it was a loose plank with sand on it. Despite the presence of safety officers at the site the 3rd defendant failed to ensure that there was suitable and adequate safe access to and egress from every place of work. 44.Although there was an allegation that the staircase in question was inadequately lit this was not pursued. 45.I also find that the plaintiff fell because of the breach of statutory duty on the part of the 3rd defendant resulting in the injuries he sustained. 46.I find that the 1st and 3rd defendants are liable for the injuries caused to the plaintiff. 47.No evidence was adduced to show the 2nd defendant’s role at the site. It was accepted by Mr. Pirie, for the plaintiff, that there should be no liability on the part of the 2nd defendant. Liability has not been established on the part of the 2nd defendant. Contributory Negligence 48.It was submitted by Mr. Wright, for the defendants, that the plaintiff should be held up to 50% to blame for the accident as he was hurrying to catch up to his co-worker. 49.It seems to me that there must be a certain degree of contributory negligence on the part of the plaintiff. The plaintiff told Poon when he was interviewed by him on 20 August 2003 that he tried to catch up with his co-worker and he speeded up. He said that what was recorded in the statement about that was true. I find that the plaintiff tried to catch up with his co-worker and speeded up to catch up to him. With that heavy load on his shoulder and with the loose plank there placed on the staircase, I find that he failed to take adequate care for his own safety. I find that there was contributory negligence on his part but, in my view, this was nowhere near the suggested 50%. I find that his contributory negligence was to the extent of 25%. The 1st and 3rd defendants are liable to the extent of 75%. Quantum The injuries 50.The plaintiff was unconscious after he fell down the wooden plank. He regained consciousness at the Caritas Medical Centre. 51.According to the reports dated 4 September and 28 October 2003 from the Caritas Medical Centre he fell landing on his buttock with back pain. There was pain and tenderness along the spine area, cervical, thoracic and lumbar areas on examination. No abnormality was shown on X-rays. The spines(cervical, thorax and lumbar) showed normal alignment. There was no fracture. He was diagnosed with neck and back injury and admitted to Orthopaedic and Traumatology Department. Physiotherapy and analgesics were given to him and his condition improved. 52.He was discharged on 22 July 2003. 53.The plaintiff was hospitalized again on 29 July 2003 because of persistent pain over the lumbar region of the back. He required a stick for walking. There was no neurological deficit on both lower limbs. 54.He was discharged on 4 August 2003. 55.Regular follow-up, physiotherapy and analgesics were arranged for him. CT scan of the lumbar spine was done on 15 September 2003 and no focal destructive lesion of the spine or significant spinal stenosis was seen. 56.He was discharged from physiotherapy on 17 October 2003. His back pain improved. Analgesics were continued. 57.Dr. Johnson C K Lam (“Dr. Lam”) and Dr. Richard Lau Man Tsang (“Dr. Lau”), both of them specialists in Orthopaedics, gave evidence. Dr. Lam gave evidence for the plaintiff and Dr. Lau for the defendants. There is a divergence of opinion between them. Their findings and opinions are set out in detail in their medical reports in the Bundle. 58.I have also considered the reports of the physiotherapists Ms Janice Morton and Mr. Alexander Woo. 59.In his first medical report dated 17 November 2003, Dr. Lam said that he examined the plaintiff on 10 October 2003. His findings are set out in the report. On examination he found that there was tenderness over the back over the lumbosacral junction. There was guarding and spasm over the lumbar region and mild guarding over the thoracic region. There was mild decrease in the range of motion of the back. At the time of the examination he still had considerable pain, and had not reached maximal medical improvement. He recommended a period of 6 to 9 months further investigation and treatment. 60.Dr. Lam was of the view that the plaintiff should not be able to return to his pre-accident occupation as a steel bender. With further treatment he should be able to return to work requiring light to medium physical demand. 61.In his supplementary report dated 17 March 2004 Dr. Lam said that he examined the plaintiff again on 16 March 2004. He walked into his clinic with normal gait and his general condition appeared satisfactory. He found mild tenderness over the thoracic and lumbar region. There was guarding and mild paraspinal spasm and mild guarding over the lower thoracic region. 62.Dr. Lam found that the pain had improved slightly with physiotherapy and exercises. The pain had improved slightly but the progress was static. He was of the view that his back condition had reached maximal medical improvement. He was still of the view that he should not be able to return to his pre-accident job. However, he should be able to perform a job requiring light to medium physical demand, like a cashier, a toll-collector or worker in a gas filling station. 63.Dr. Lam wrote a further report dated 15 February 2005. By that time Dr. Lam had been referred to MRI reports and scans taken at the Caritas Medical Centre on 7 April 2004 and Hong Kong Sanatorium and Hospital on 21 October 2004. 64.Dr. Lam said that the 1st set of MRI scans taken on 7 April 2004, about 9 months after the injury, revealed 3 disc protrusions at L3/4, L4/5 and L5/SI levels with mild compression of the anterior thecal sac. This was compatible with severe back contusion injury, the physical findings of muscle guarding and spasm and the relatively wide zone of tenderness in the plaintiff’s case. He said that the multiple disc protrusions would explain the plaintiff’s back pain and difficulty in returning to his pre-accident occupation. 65.Dr. Lam said that the 2nd set of MRI scans taken on 21 October 2004, about 6 months after the 1st set, revealed mild disc bulging and protrusion at L4/5 level. There was no longer any disc protrusion at L3/4 and L5/S1 levels. He explained that in time all or part of the protruding portion may shrink and be absorbed by the body. But the damage to the disc had been done. 66.Dr. Lam said that the fact that the previously shown protrusions in the 1st set of MRI scans seemed to have shrunk by the time of the 2nd set of MRI scans provided further evidence in support of the multiple disc protrusions being fresh injuries rather than pre-existing lesions. 67.He maintained his previous view that the plaintiff should not return to his previous occupation as a steel bender but should be able to return to an occupation requiring light to medium physical demand. 68.In evidence, Dr. Lam referred to the Medtronic reference book ‘Basic Anatomy and Pathology of the Spine’ at page 118 with 4 illustrations. Dr. Lam said that the plaintiff’s injuries fell within the Type B Disc Protrusion illustrated there. Disc protrusion is also known as a bulging disc. Of the 4 Types depicted there, Type D was the most serious. As is mentioned at page 118 of the said medical reference book, a prolapsed disc is synonymous with protrusion or bulging. Dr. Lau’s opinion was that the plaintiff’s injuries fell between Type A and Type B. 69.Dr. Lam also said in evidence that the fact that the plaintiff could not pass urine at the time of his admission to hospital was rare for a young man like the plaintiff. He had to have a Foley’s catheter inserted to drain out the urine. The fact that there was urine retention on admission suggested that there was injury to the nerve supplying the bladder or that the pain was so severe making it difficult to pass urine. 70.Dr. Lam also said that the 1st set of MRI scans did not reveal any spurs but in the 2nd set of MRI scans taken 6 months later, spurs were found at L2, L4 and L5 vertebral bodies as shown in the report of the MRI scans by Dr. Gladys Lo dated 21 October 2004. Dr. Lam said that this signified the onset of degeneration of the discs. 71.Dr. Lam was cross-examined but he maintained his views. He maintained that the most likely cause of the disc protrusions at 3 levels as shown in the 1st set of MRI scans was a single trauma rather than degeneration due to the nature of his job. Dr. Lam said that for this type of injury where 3 disc protrusions were involved Government hospitals would give sick leave for at least a year. It seems to me on his evidence the 3 disc protrusions was the result of the fall he had when he had his accident which must have caused him severe pain at the time. 72.Dr. Lau examined the plaintiff on 23 April 2004. His findings are set out in his report dated 3 May 2004. He was of the view that it was likely the plaintiff has exaggerated his suffering. He was of the view that soft tissue injury did not cause any significant permanent disability. The injuries that he sustained without bony injury, neurological deficit or intervertebral disc injury, were minor injuries to the soft tissues of the back. He was of the view that no further treatment or investigation was necessary. 73.Dr. Lau was also of the view that the plaintiff may have difficulty in resuming the heaviest category of work in construction sites but he could do less strenuous work of a general labourer at construction sites. He said that he should have been able to do this 6 months after the injury. 74.In his report dated 7 February 2005 Dr. Lau reviewed the 1st set of MRI scans. He said that there was degeneration of the spine and that the reports had disproved the presence of a prolapsed disc. 75.In evidence Dr. Lau said that the plaintiff had tightness of the back which could be caused by soft tissue injury. 76.Dr. Lau said that from his examination of the 1st set of MRI scans he did not see any disc protrusion. The plaintiff’s case fell between Type A and Type B of the 4 Types depicted at page 118 of the said medical reference book. He also said that he did not think that it was likely that the small spurs on L2, L4 and L5 vertebral bodies as shown in the 2nd set of MRI scans had grown since the original trauma in the accident. He thought that they would already have been growing before the accident because the plaintiff was a heavy manual worker and had repeated stress on his back. 77.Dr. Lau agreed with Ms Morton’s view that the pain the plaintiff was experiencing was purely postural pain associated with loss of flexibility of his lumbar spine. 78.Ms Morton was of the view that the plaintiff had not been given any lumbar extension exercises aimed at restoring normal lumbar flexibility. She was confident that had he been treated with individual passive joint mobilization and given appropriate lumbar mobility exercises, she was confident that normal range of lumbar movement would have been achieved within a short time. She was also of the view if he were given appropriate physiotherapy treatment and practices the same at home he is unlikely to suffer residual back pain and should be able to resume his former employment as a construction site worker. Alexander Woo, however, in his report expressed the opinion that it is not likely that the plaintiff would show further subjective improvement with any kind of further physiotherapy treatment program. 79.Dr. Lau said that the plaintiff should be able to go back to work as a steel bender with some limitations. He did not agree with Ms Morton that he was unlikely to suffer from residual back pain. 80.Having considered the evidence, I prefer the opinions of Dr. Lam to that of Dr. Lau and Ms Janice Morton where their opinions are at variance with Dr. Lam’s. The plaintiff was in general good health before the accident. He did not suffer from any back pain. It was only after the accident that he had 3 disc protrusions as shown in the 1st set of MRI scans and degeneration of the discs as evidenced by the presence of spurs at L2, L4 and L5 vertebral bodies. This is the firm opinion of Dr. Lam which I accept. 81.I prefer the opinion of Dr. Lam that the mild disc protrusions were most likely caused by the accident and I so find. Pain suffering and loss of amenities (PSLA) 82.Prior to the accident the plaintiff was in good health. He was 28 years old at the time and he is now almost 30. He used to be active in sports such as football, hockey and cricket. Because of his back injury he can no longer enjoy these. 83.He feels pain when he walks for more than 30 to 45 minutes and when he stands for more than 45 minutes or sits for more than 2 hours. He can no longer lift heavy objects. Because of his back injury he had difficulty in having sexual intercourse but his condition has improved. I do not believe that the plaintiff has exaggerated his injuries. He said that he still has pain in his back in the lower lumbar region. After working for 1 or 2 hours in his job as a kitchen worker he has to sit down. He is not able to lift heavy weights and is unable to play active sports as he used to. He is also unable to lift his daughter who is now 2 years old. 84.The injuries are below the serious injury category. It seems to me that a reasonable award for PSLA would be $300,000 and this is the sum I award under this head. Pre-trial loss of earnings 85.The plaintiff said that he went for an interview for a security job but the job was not suitable as he did not speak Cantonese well and it involved too much walking. I believe him. I am satisfied that he should not be working in his pre-accident occupation as a steel bender in construction sites. He was only able to get an employment as a kitchen worker and that is his employment at this time with monthly earnings of $4,750. 86.At the time of the accident the plaintiff earned $630 per day. He was a casual labourer and was only paid for each day he worked. 87.The plaintiff relies on the information contained in Form 2 dated 31 July 2003 under the Employees’ Compensation Ordinance Cap. 282 filled in by the 3rd defendant. The basic salary of the plaintiff for the month immediately preceding the date of the accident was stated to be $16,120 calculated on the basis of 26 days at $620 per day. The average monthly earnings for the past 12 months preceding the accident were recorded as $16,380. The plaintiff’s case is that he was earning on average this sum at the time of the accident. 88.Ho gave evidence that he supplied the information to the 3rd defendant who filled in the Form 2 and he believed at the time that the figures were accurate. 89.The plaintiff also relies on the letter dated 26 March 2003 from the 1st defendant certifying that the plaintiff’s salary then was $600 per day and about $15,600 per month. It seems that this together with an earlier letter was required by the plaintiff for Immigration or visa related purposes. 90.The defendants’ case is that the plaintiff earned less than that as stated in Form 2 and in the said letter dated 26 March 2003. 91.Ng Lam Wah, the managing director of the 1st defendant, gave evidence that he prepared handwritten notes of the wages and time records of the employees at the site including the plaintiff. The information was then put into a computer and a record of the wages and time records was kept. He said that the computer printouts exhibit D1 were an accurate record of the wages and time records of the employees including the plaintiff. 92.Both Ng Wai Lam and the plaintiff were cross-examined about the wages and time records of the employees. Having considered their evidence, I am satisfied that exhibit D1 is an accurate record of the wages and time records of the employees including the plaintiff. I believe Ng Wai Lam on this matter. That being so, it seems to me that the information in Form 2 was incorrect as it overstated the plaintiff’s earnings at the time of the accident. 93.I am also satisfied, as Ng Wai Lam said, that the records also show the deductions, representing repayment of loans made to employees, before payments were made to the employees. I accept his evidence on these matters. I prefer his evidence to that of the plaintiff on this. 94.I am satisfied that exhibit D1 is an accurate record of the wages and time records kept by the 1st defendant. As the 1st defendant is no longer in business it is not surprising that Ng Wai Lam has lost the original handwritten notes from which the information in the computer printouts was taken. Ng Wai Lam also explained, and I accept, that a reason for the discrepancy in the figures between the records and the MPF contributions was because for every half day of work, one full day of MPF contributions was made. 95.I am satisfied that the plaintiff was earning $630 per day at the time of the accident. This included the $30which was deducted as his contribution for MPF. 96.Mr. Wright submitted that according to his calculations for the first 6 months of 2003 taken from exhibit D1 the plaintiff earned an average of $12,031.60 per month. I accept Mr. Wright’s calculations. However, the plaintiff gave evidence that in January, February and March 2003 he worked less than he normally would have as his wife was having a baby and she was not feeling well during her pregnancy. He had to take care of her and did not work for some of the time during those months. His wife gave birth in February 2003 and he also took time off in February and March 2003 to look after his family. In April 2003 he also took a few days off. I accept his evidence on this. It seems to me that at the time of the accident his average earnings should, therefore, be more than $12,031.60. It is difficult to be precise about this. Doing the best I can on the material available, it seems to me that his average earnings at the date of the accident should be taken at $13,000 per month. 97.The plaintiff was granted sick leave which expired on 22 April 2004. He should be entitled to full loss of earnings for the period from 17 July 2003 to 22 April 2004 namely, for 9 months. Thereafter from 22 April 2004to trial he should be entitled to 10 months partial loss of earnings as he should have been able to do some work after 22 April 2004. He managed to get employment earning $4,750 per month as a kitchen worker. That is his present employment. 98.The pre-trial loss of earnings are assessed as follows :
Pre-trial loss of MPF 99.He is entitled to an award for pre-trial MPF. This should be assessed as follows :
Special Damages 100.These are agreed at $4,000. Loss of future earnings 101.The plaintiff is entitled to an award for loss of future earnings. He is presently earning $4,750 per month as a kitchen worker. Mr. Pirie submitted that I should adopt a multiplier of 16 for the plaintiff’s loss of future earnings. Mr. Wright suggested a multiplier of 14. In my view it would be reasonable to adopt a multiplier of 15 in this case. 102.The award for loss of future earnings is $1,485,000 ($8,250 x 12 x 15). Loss of future MPF 103.This is assessed at $74,250 ($8,250 x 5% x 12 x 15). Loss of earning capacity 104.It does not seem to me that there is a real risk that the plaintiff would lose his present employment as a kitchen worker earning $4,750 per month. I do not propose making any award under this head. Interest 105.The plaintiff is also entitled to interest on pre-trial loss and special damages at 4% p.a. from date of accident to judgment (22 months) and interest and on PSLA at 2% p.a. from date of writ to judgment (19 months). Conclusion 106.The total damages and interest are as follows :
107.The plaintiff is only entitled to 75% of the said sum in view of his contributory negligence namely, $1,573,409.85. However, from this sum must be deducted the periodical payments received by the plaintiff amounting to $125,505 as agreed. 108.I give judgment to the plaintiff against the 1st and 3rd defendants for damages in the sum of $1,447,904.85. 109.The claim against the 2nd defendant is dismissed. 110.I also make an order nisi (a) that the 1st and 3rd defendants do pay the plaintiff his costs of the action and (b) that the plaintiff do pay the 2nd defendant its costs of the action.
Mr. Nicholas Pirie, instructed by Messrs John M. Pickavant & Co., for the plaintiff Mr. John Wright, instructed by Messrs Krishnan & Tsang, for the defendants |
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