Hang Huu Duc v. Hanbo Engineering Ltd

HCPI 172/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 172 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Muttrie in Court

Dates of Hearing : 31 October and 1 November 2005

Date of Judgment: 14 November 2005

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J U D G M E N T

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1.The plaintiff, Mr Hang, was employed by the defendant, Hanbo, as a carpenter.  On 27 March 2001, in the course of his employment, he tried to hammer a steel cement nail through a wooden plank and into an iron or steel tube.  The nail rebounded, and hit him in the left eye.  He lost his sight in that eye, and can no longer work as a carpenter.  He claims damages for negligence, breach of implied terms of employment and breach of statutory duty. 

Issues

2.Mr Hang’s pleaded case is that Hanbo failed to provide him with nails or materials which were suitable for the work he had to do; failed to provide protective equipment such as goggles; failed to give adequate information, instruction or warnings; failed to provide and maintain a safe system of work; instructed him to work in a way which Hanbo knew or ought to have known would cause risks to Mr Hang’s safety; and so on. 

3.Hanbo denies negligence or breach of statutory duty.  It pleads that Mr Hang was hammering a nail into a piece of wood, which is a common feature of construction work and that he is an experienced workman with special skills in hammering nails.  It further pleads that Mr Hang was negligent in that he inserted and/or hit the nail at an angle causing it to spring out from the plank when hit; he failed to use proper force when hitting the nail in; he failed to take any proper care when hammering the nail in; and, in the premises, he failed to take reasonable care of himself.

4.There are two issues here.  The first issue is whether Hanbo was negligent and in breach of the implied terms pleaded, which I think must be implied into any contract of employment, and whether it was in breach of the common duty of care under the Occupiers’ Liability Ordinance; and further whether it was in breach of its duty under section 6 of Occupational Health and Safety Ordinance to provide and maintain plant and systems of work that were, so far as reasonably practical, safe and without risks to health.  All these go together.

5.The second issue relates to fault on the part of Mr Hang.  There is no pleading of volenti non fit injuria.  Mr Gidwani, who appears for Hanbo argued an employer’s duty is only to take reasonable steps to prevent a worker from unnecessary risk.  A carpenter is exposed to necessary risks when hammering, of the nail flying out or of hitting his own fingers.  The employer does not have to be the employer’s nursemaid and therefore Hanbo should not be liable.  There was no statutory duty to provide goggles.  Mr Hang should have provided his own protective glasses which are cheap and easily available.  If Hanbo is liable, Mr Hang should be liable to contributory negligence of not less than one third. 

Evidence

6.All the evidence comes from Mr Hang himself.  Hanbo called no witness.  Mr Hang says that he is Vietnamese, and was born in Vietnam in 1972.  He came to Hong Kong in about 1993 as a refugee, and lived in closed camps until 1997.  Thereafter he went to work as a casual labourer on building sites.  In about March 1999 he was apprenticed to a master carpenter, and worked as apprentice for about a year; and thereafter he worked as a carpenter.  At the time of the accident he was earning $1,100 per day.  He had been working for Hanbo since 12 March 2001.

7.On 27 March 2001 in the afternoon, he was working at the Tung Chung station site.  The supervisor, Brother Keung, told him to revamp the interior of the ground floor prior to concreting and to secure the iron falseworks for supporting the ceiling. 

8.The falseworks were vertical frames made of iron tubing.  From a photograph which has been produced it can be seen that the tubing is like scaffolding tube, and further Mr Hang has produced a piece of tubing, Exhibit P1, which he says is the sort of tubing from which the falseworks were made.  The falseworks were to be connected horizontally with each other by scissor-shaped iron pieces, the ends of which were buckled on to the vertical tubes of the falseworks.  One such pair of falseworks could not be so connected, because one frame was on a surface 300 mm higher than the other, and the scissor pieces could not be buckled on.  So Brother Keung told Mr Hang to use steel nails and planks to connect the two iron falseworks.  He told him “just put the nails into it and fix the two ends, that would do”; and he told him to use cement nails.

9.Mr Hang went to fix a plank to the vertical tube of the higher falsework.  He knocked a steel cement nail — a similar nail has been produced as Exhibit P2 —  into the plank and then tried to drive it through the plank and into the iron tube of the falsework, about 2 feet above the surface.  He was using a normal claw hammer to do this.  The falsework stood on an extension leg in a water pool, so he stood by the pool and swung his hammer right-handed, bending over a little to do so.  After he had hit the nail a couple of times it popped out and hit him in the left eye. 

10.Mr Hang says that he thought the nail would go into the iron tubing, otherwise Brother Keung would not have told him to do this.  It was his responsibility to do the work so he did it.  He accepted that if a nail has to go through a wood plank then into other wood, the possibility of the nail coming out is small, while if it has to go through wood and then into a metal pipe the possibility would be a lot higher.  But he was told to do it, and reckoned that it was his responsibility to do it, so he did not even think about it at the time. 

11.So far as goggles are concerned, Mr Hang said that none were provided.  There was only one pair on site which would be produced for inspection by factory inspectors.  He asked for goggles on the first day on the site and was told that there were none.  To ask again would have been pointless.  He did not think of providing his own safety glasses.  If he had had them, it would have made no difference; the nail went into the corner of his eye.

12.In a statement made for the purpose of employee’s compensation proceedings Mr Hang had said that he was hammering a cement nail through wood into concrete.  He explained that when he had tried to tell Hanbo’s safety officer that he had been hammering a nail into iron falsework, the officer had told him that the story did not match the account he had, which said that while Mr Hang was working, he suddenly got a nail in his eye; and only if Mr Hang was injured in this way would he get compensation.  Mr Hang understood that the officer did not want him to mention hammering a nail into falsework; so he had said that he was hammering a nail into concrete. 

13.In fact, in the Form 2 dated 3 May 2001 and submitted to the Labour Department Hanbo said that Mr Hang was assigned to secure steel falsework.  He was nailing a piece of timber as an additional bracing on the steel falsework.  A nail flew into his eye when he was hammering hard on the timber which was placed on the steel tube of the falsework. 

Finding of fact

14.There is no evidence to contradict the account given by Mr Hang.  His earlier inconsistent account is explained.  I believe his evidence.  I find that he was injured when he tried to hammer a cement nail through a plank into an iron or steel falsework tube, and the nail sprang out and hit him in the eye.

Negligence and breach of statutory duty by Hanbo

15.It is, I think, a matter of fundamental human experience that one cannot hammer a nail into a heavy iron or steel tube like a scaffolding tube with an ordinary hammer; not even a steel nail made to be hammered into concrete.  Everyone who has ever hammered a nail, and that means just about everyone who has ever lived, even if the only thing hammered was a picture nail into the wall, must know that there are some surfaces which will simply not take a nail.  It is necessary to drill into them, and put a screw or bolt in.  The kind of heavy gauge iron or steel which forms scaffolding tubing and the like — things which everyone in Hong Kong is bound to see, sooner or later, given the number of building sites in the city at any time — is one of those surfaces.  To try to hammer a nail into it is to attempt the impossible.  Penetration may be possible with some kind of explosive nail gun or other special apparatus, but if one tries to hammer a nail into such a surface the nail will bend, or if it is brittle, as a steel nail is, it will bounce off the surface and fly out; or it will break, and the pieces will fly out; or if one is trying to hammer it into a curved surface, it will slip sideways at the very least.  All this is not a matter of expertise, it is a matter of common experience, and I can and do take judicial notice of it.

16.It follows that when the supervisor, Brother Keung, gave instructions to Mr Hang to do this, his instructions were not safe.  He should have known that trying to hammer a steel nail into an iron tube is a recipe for disaster; it is inherently unsafe.  It was obviously foreseeable to him that one of the probable results was that the nail, or fragments of it would fly out and cause danger to Mr Hang or anyone else who happened to be near.  The system of work was not safe and there was no way to make it so. 

17.Mr Hang pleads that goggles should have been supplied.  Mr Gidwani argues that the work done was not a specified process for the purposes of the Factories and Industrial Undertakings (Protection of Eyes) Regulations, and so there was no statutory duty to supply approved eye protectors.  That is no doubt right, but if, as is argued for Hanbo, there is an inherent risk to a carpenter in hammering a nail into wood that the nail will fly out, there must obviously be a duty to do what is reasonable to protect against that risk; and so it would follow that any carpenter who has to hammer nails into wood should be provided with some kind of eye protection.  A fortiori, if a the carpenter has to hammer a nail into a very hard surface, there should be a duty to provide eye protection.  In fact Mr Hang was not hammering a nail into wood, but through wood into metal so any argument of inherent or necessary risk is irrelevant. 

18.In fact, goggles are a side issue.  If one tries to hit a nail into a surface that will not take it, one does not simply need goggles, one needs all-over protection from the impact of the flying nail, or fragment of it, which is likely to result from the hammering.  But it matters little because the real point is that Mr Hang should never have been told to try to hammer a nail into metal falsework, whether he had been provided with goggles or not.

19.Hanbo did not provide and maintain a system of work that was safe and without risks to health.  No reasonably practicable steps could have been taken to make it so.  Hanbo cannot avoid liability for negligence and breach of implied terms of contract.  Nor can it avoid liability for breach of the pleaded statutory duties. 

Negligence on the part of Mr Hang

20.Mr Hang says that he did not know that what he was told to do was impossible, but in my view he ought to have known it, as any normal person ought to know it.  Further, he was a carpenter with training under a master and sufficient experience to command a wage of $1,100 per day.  He had been hammering nails for some years.  He would have every opportunity to know from experience what would take a nail and what would not.  He ought to have known that there was an inherent risk in trying to do the impossible job of hammering a nail into a metal tube.  Once his supervisor told Mr Hang to do the job, he was put in danger.  He did not see the danger; but he ought to have done so.  He went ahead anyway.  This amounts to contributory negligence. 

21.It is argued that Mr Hang did not choose to perform his task in a dangerous way; he was doing his employer’s business, according to his instructions.  As Mr Lin, counsel for Mr Hang puts it, they cannot just say that he was stupid to do it that way; therefore there is no room for a finding of contributory negligence.  Reference is made to the case of Sun Wan Co. v. Ng Kam [1988] 1 HKC 358 which applied the principle set out in General Cleaning Contractors v. Christmas [1953] AC 180. 

22.That is all very well, but here Mr Hang was not simply told to do something and left to choose how to do it; he was told to attempt the impossible.  An employee has a duty to take reasonable care of himself.  He cannot blindly follow orders and try to do something that any sensible person should know is impossible and which will put him in danger.  His duty to take reasonable care for his own safety would require him to refuse to attempt the impossible or at the very least to ask for different instructions as to how to do the job.

23.In the circumstances it seems to me that there was contributory negligence on the part of Mr Hang.  Since he was carrying out his employer’s business, according to instructions, the amount of contribution should be restricted and I will allow 25%.

Quantum 

24.Mr Hang was born on 4 June 1972.  He was 28 years old at the time of the accident, and 33 at the date of trial.  Mr Hang’s left eye was ruptured.  He had to undergo various operations.  He now says that the vision in that eye is very poor and he can only see dark shadows.  He suffers from photophobia and tearing, especially in sunlight.  He still feels pain in the eye and it gets worse when he applies strength.  He suffers from loss of stereoptic vision, depth perception and fine visual discrimination. 

25.The medical experts on both sides agree that Mr Hang can only see hand movement with his left eye.  He suffers a permanent 100% visual impairment in that left eye.  Put simply he is blind in that eye.  He cannot return to work as a carpenter.  Various types of work are however open to him, and one such is security officer. 

26.Mr Hang had sick leave until 25 December 2003.  He is now working as a security officer, since 1 November 2004.

PSLA

27.Mr Lin, counsel for Mr Hang says that the figure for pain, suffering and loss of amenity should be in the region of $550,000.00 and he refers to the cases of Ho Yam Pan v. Tse Tak Ming, HCPI 91/1996 and Sze Ping Chui v. Lau Ching Wai, HCPI 1051/2001.  Mr Gidwani for Hanbo agrees that an award of around $500,000.00 would be appropriate.  I will award $550,000.00.

Pre-trial loss of earnings

28.Mr Hang says he earned $28,600.00 per month, i.e. $1,100 per day for 26 days per month.  Mr Lin relies also on the Government statistics which show a that a formwork carpenter would in 2005 earn about $1,070 per day and he applies a mean between the two figures in his calculations.  Mr Hang insisted in evidence that he worked for 26 days per month; there is nothing to contradict him and I accept what he says; so I will take the pre-trial loss of earning as $28,210.00 per month from the date of the accident to 31 October 2004, i.e. 43 months.  The figure for that period is $1,213,030.00.

29.From 1 November 2004 to the date of trial, 31 October 2005, Mr Hang has been working as a security officer and has earned $64,463.00 so the loss of earnings for the period is (12 x $28,210.00) - $64,463.00 = $247,057.00.

30.The total pre-trial loss is therefore $1,213.030.00 + $274,057.00 = $1,487,087.00.

Post-trial loss of earnings

31.The multiplicand is $22,167.00 per month.  A multiplier of 15 is claimed.  There was no serious argument and I will accept this.  Accordingly the future loss will be $22,170.00 x 180.00 = $3,990,060.00.

Loss of earning capacity

32.Mr Hang says that he has not told his current employer that he is blind in one eye.  I doubt that he would have been able to get this kind of work otherwise.  Normally there is some fitness requirement for a security officer.  There is obviously a real risk that he will lose his employment in future and will be handicapped in the labour market.  He claims $150,000.00 under this head.  I think this is reasonable, and will award it.

Loss of MPF

33.This is 5% of the post-trial loss, or $273,857.00.

Future medical expenses

34.Mr Hang’s expert, Dr Tsui, says he needs ophthalmic treatment every three or six months for relief of intra-ocular pressure at a cost of $400 – $600 per month.  Accordingly there is a claim of $10,000.00, being five years of such treatment at $2,000.00 per annum.  This seems reasonable.  According to Dr Tsui there is a possibility of extra-ocular muscle surgery at a cost of $20,000.00, but Hanbo’s expert, Dr Cheung, does not mention it.  The requirement is not clear and I do not think an award should be made.  I will allow $10,000.00 for future medical expenses.

Special damages

35.The claim is for $17,465.00 under various heads and there is no particular dispute over them.  I will allow this figure. 

Total award

36.I have allowed for a 25% reduction for contributory negligence.  Credit must also be given for the employee’s compensation award. 

PSLA	$550,000.00
Pre-trial loss of earnings	$1,487,087.00
Post-trial loss of earnings	$3,990,060.00
Loss of earning capacity	$150,000.00
Loss of MPF	$273,857.00
Future medical expenses	$10,000.00
Special damages	$17,465.00
Total quantum	$6,478,469.00
Less 25%	-$1,619,617.25
Less ECC award	-$1,762,251.00
Final award	$3,096,600.75

Judgment

37.There will be judgment in favour of the plaintiff for $3,096,600.75 with interest on the PSLA at 2% per annum from 28 February 2004 and on the pre-trial loss of earnings, including MPF, and special damages at 4% per annum from 27 March 2001 until payment, and costs to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. 

Mr Kenny C.P. Lin, instructed by Messrs Y.C. Lee, Pang & Kwok, for the Plaintiff

Mr Victor Gidwani, instructed by Messrs Cheng, Yeung & Co., for the Defendant