Yip Wai Chung v. Kwong Leung Engineering Co Ltd and Another

HCPI 162/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 162 OF 2005

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BETWEEN

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Before : Deputy High Court Judge Saunders in Court

Dates of Hearing : 14,15,16 and 17 November 2005

Date of Judgment : 28 November 2005

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J U D G M E N T

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Introduction:

1.This is an action for personal injury damages arising from an accident in the workplace.  At issue are  liability, contributory negligence, and quantum.  However, significant agreement has been reached on quantum, with the primary issue in that respect being loss of earnings.

The accident:

2.Mr Yip is a plasterer, and was employed by Kwok Leung to undertake plastering work at a building site at which Chun Wo was the principal contractor.

3.At the commencement of the trial Mr Tang, for Mr Yip was concerned to bring the action not only in negligence, breach of statutory liability, and breach of occupier's liability, but also in terms of breach of employment contract.  He accepted however that in an oral employment contract any implied term would not go further than to imply a duty on the part of the employer to comply with usual standards of care, statutory duty and occupiers duty.  Accordingly it was not necessary to consider separately the issue of any employment contract.

4.On 10 April 2003, Mr Yip was carrying out plastering work on the walls and ceiling of an open corridor on the third floor of the building.  In order to plaster the ceiling, 10 feet above the floor level, it was necessary for Mr Yip to use a working platform to gain appropriate height.  Although there were available on site suitable iron tubular frames to construct a working platform that would comply in all respects with appropriate legislation, Mr Yip chose not to use those, but to construct his own working platform.  He did this by placing wooden beams transversely across the corridor using the window frame and outer parapet wall as supports for those beams.  On those beams, which were some 4 feet above the ground, he placed two metal planks, each of which were 12 to 15 feet in length, and weighed about 30 pounds.  All of the material he used was material he apparently scavenged from the work site.

5.Before constructing the working platform Mr Yip said that he tested the strength of the transverse wooden beams by placing them at an angle on the ground, and standing on them to see if they broke.  Having tested them, he then placed them in position and then placed the mental planks on the beams.  Before using the platform he had constructed he said that he again tested it by placing his weight on the platform to ensure that it would support him.  It is not precisely clear from the evidence, but it appears that he had used this system previously on the same floor.

6.In approximately 11:15 a.m. on 10 April 2003 he stood on the constructed platform to test its strength, but one of the transverse beams broke, and the platform suddenly collapsed.  As a result Mr Yip landed on his right heel, which upon x-ray showed a fracture of the right calcaneum.

7.At the time of the accident Mr Yip was aged 43.  He is now aged 45.  He was treated with a short leg complete plaster cast, and was discharged from hospital, on crutches, on 14 April 2003.  The plaster cast was removed after two months and he undertook physiotherapy until September 2003.  Mr Yip was on sick leave continuously from 10 April 2003 to 11 March 2004.  That period is accepted as reasonable by the defendants.

8.There is a dispute as to Mr Yip’s earning capacity after 11 March 2004.

Liability for the accident:

9.The evidence from the defendants, which I accept, was that tubular frames, suitable for constructing working platforms to heights of both 1.5 and 1.9 m, were available.  The mental planks, used by Mr Yip in the construction of his platform, were suitable for use with those frames.

10.The height of the platform required, being below 6 feet, meant that the platform was one which, strictly, did not have to comply with the appropriate provisions relating to a working platforms contained in the Construction Site (Safety) Regulations.  However it is clear that a working platform was required to bring the workers to an appropriate level to enable them to plaster the ceiling, and the clear obligation on the employer is to provide a suitable working platform.  The evidence was that the tubular frames were stored on the ground floor of the site, and it was necessary for workers if they required a platform, albeit only temporarily, to go to the ground floor to retrieve the frames and bring them to their place of work.

11.The evidence from the safety officer for the defendants was that he undertook inspections of premises on a regular basis, and although he said he kept a record of those inspections, no record was produced.  There was no evidence as to how often the safety officer inspected areas, such as areas where plastering was to be undertaken, where it was plain that working platforms would be required.

12.It is not enough for the employer merely to provide the materials on the ground floor and leave it to the employees to use them.  It is not enough for occasional inspections to be undertaken, particularly where it is obvious that it will be necessary to construct a working platforms as is the case here.  It must have been obvious to the employer that a working platform would be required to enable the plastering of the ceiling, and it is not enough to provide materials on the ground floor and leave the workers to use them.  Where it is clear that a working platform is required positive steps must be taken by the employer to establish a safe and secure platform.

13.I am satisfied that liability for the accident must lie with the defendants.  No issue of contribution between the defendants arises.

Contributory negligence:

14.Mr Yip knew that the tubular frames were available.  His primary reason for not using them was that it was inconvenient to him.  His evidence was that if he used the tubular frames it was time consuming and difficult to move them along the corridor each time he had completed a section of plastering.  He said further that it would be difficult for other workers and himself to move along the corridor with the tubular frames in place.  Neither is a satisfactory reason for not using the secure working platforms that were provided.  Inconvenience is never a reason for not following a safe working practice.

15.Mr Yip had extensive safety training and ought to have known of the risk in using the working platform he designed himself.  While it is right that he tested the strength of the wooden transverse beams he did so merely by standing on them.  The first test he undertook it did not take into account the weight of the metal planks that were to be placed on the beams, and so was an unsatisfactory test.  The second test he undertook, in situ, was itself risky and dangerous as there was no provision to support him if the test failed and the platform collapsed, as it did in this case.

16.This is a clear case in which a significant proportion of the responsibility for the accident must lie with a trained worker who has elected to construct his own working platform and not to use the materials provided by the employer.

17.I have had regard to the authorities cited by Mr Wong for the defendants.  They are essentially cases on their own facts.  Looking at the matter broadly, as I must, I fix contributory negligence against Mr Yip in the amount of 50%.

Mr Yip’s present condition:

18.Mr Wong suffered a painful injury to his right heel.  He required hospitalisation, and it is accepted that it is appropriate that he should have been off work for 337 days.

19.There were before me reports from two orthopaedic surgeons, one instructed by the plaintiff, one by the defendants.  Both are agreed that the fracture has healed without trace, in anatomical position with no displacement, and that there is no osteoarthritic change.  Mr Yip has suffered mild wasting of the calf muscle and has mildly reduced ankle movement consequent upon the injury.  Both doctors are agreed that he can walk steadily without aid, and that he can now not squat completely, with squatting for a long time producing discomfort around the right ankle and heel origin.

20.It is the view of the defendants’ surgeon that Mr Yip is capable of resuming his preaccident occupation, while at the same time acknowledging the squatting difficulty.  He assesses permanent physical impairment at 5 to 8% of lower limb impairment, equivalent to 2 to 3% whole person impairment, with loss of earning capacity in accordance with the Employees Compensation Ordinance at between 4 to 6%. The plaintiff’s surgeon is of the view that the heel pain and stiff ankle joint will mean that Mr Yip is not able to resume his preaccident occupation.

21.I was shown a covert surveillance video taken of Mr Yip, over a number of days, at the request of the defendants.  It is apparent from the video that Mr Yip’s gait is mildly impaired.  As I saw the video, the stride he takes with his right leg is slightly shorter than that with his left leg, thus producing a barely perceptible limp.  Contrary however to the assertion of his orthopaedic surgeon, the video did not demonstrate any reduction in Mr Yip’s ambulatory ability.  Notwithstanding the barely perceptible limp, Mr Yip moved freely on his way to the MTR, up and down stairs and across streets.  He did not need to use the hand rail on stairs, and other than the limp, showed no impairment at all.

22.Against that however it is clear from the medical reports that he has suffered muscle wasting.  Further, both doctors are agreed that he has suffered whole person impairment, although they are not agreed as to the extent of that impairment.  Dr Cheng, for the defendants, was of the view that Mr Yip was capable of resuming his preaccident occupation but he may suffer discomfort, and should not work frequent over-time.  Dr Wong, for the plaintiff, was of the view that Mr Yip was fit only for light manual work such as a casual worker, car park attendant or watchman and should be given the opportunity to set intermittently.

23.In the video Mr Yip is seen entering a construction site, the redecoration of Lane Crawford at Pacific Place, where undoubtedly plastering work was being undertaken.  He said that he was working as a supervisor and not undertaking physical plastering at all.  There was however no other evidence as to the nature of the work he was undertaking.  In the video Mr Yip is seen carrying heavy bags of water from a supermarket to the entrance of his home a period of some six minutes or so.

24.Having viewed the video, heard Mr Yip, and considered the medical reports, I have come to the conclusion that Mr Yip is capable of working in the plastering trade, although there will be some limitations on his ability to undertake that work.  He will be able to deal with those limitations, but in doing so his work capacity will be slightly restricted.  Limitations brought about by a restriction on squatting can be overcome by sitting or bending.  I accept that those limitations will mean that he will not be able to work in the capacity of a “senior master plasterer”, and that he must accept work at a lower level, and accordingly with a restriction on his earnings.  I am satisfied that this is not a case where he should be restricted to the most menial of tasks, that of a watchman.  In short, I am of the view that he has not recovered in the way the defendants’ surgeon says, but is not as bad as his own surgeon says.

PSLA

25.The parties were agreed on PSLA in the sum of $200,000.

Loss of earnings:

26.Prior to the accident Mr Yip was earning $750 per day as a senior master plasterer.  For the reasons I have given above I am satisfied that he will not be able to earn at that rate in future.  From November 2004 to June 2005 he has had work at $300 per day, with the number of days were varying from 10 to 22.  The evidence did not indicate that the restricted months were as a result of Mr Yip’s injuries, and I draw the inference that they relate solely to availability of work, a matter for which the defendants are not responsible.

27.There have been occasions in the past when Mr Yip has worked not as an employee but as a subcontractor himself.  In this capacity he employs and supervises the men.  The evidence establishes that when he worked as a subcontractor his earnings exceeded $750 per day.

28.I am of the view that Mr Yip is capable of working 22 days per month and averaging, taking into account his continuing ability to act as a subcontractor himself, $500 per day, or $11,000 per month.  Mr Yip chose to go back to work as a lower paid supervisor.  There was no evidence that he could not have undertaken some sub-contracting work and earned more than the $300 per day he received as a supervisor.

29.It is not in dispute that prior to the accident Mr Yip was earning $750 per day.  At 22 days per month that is an income of $16,500 per month.  I am satisfied that it is an appropriate average upon which loss of earnings shall be assessed.  The daily wage loss is assessed at $250 per day.

30.The parties are agreed on the period of sick leave and Mr Wong was content with a period of three additional months to look for alternative employment after the expiration of sick leave.

31.The appropriate calculation for pre-trial loss of earnings is accordingly:

10.4.2003 – 11.6.2004     ($16,500 x 14 months)	$231,000
12.6.2004 – 14.11.2005   ($250 x 22 x 17 months + 2 days)	$94,000
Total pre-trial loss of earnings	$325,000

Future loss of earnings:

32.The parties are agreed that the appropriate multiplier is 10.  The appropriate calculation therefore is: $250 x 22 x 12 x 10 = $660,000

Loss of MPF:

33.Mr Yip’s evidence was that he was responsible for his own MPF, and that his employer did not provide any MPF for him.  Mr Wong contended that Mr Yip was evasive on the question of MPF.  There was no evidence of any record of contribution by Mr Yip to the MPF fund.  While that is right, it is clear that, while in employment, Mr Yip’s employer is legally obliged to pay MPF.

34.The fact that previous employers might have been in breach of their obligations under the MPF scheme is, in my view, not an appropriate basis to deny Mr Yip his legal entitlement to MPF payments on his pre-trial and future loss of earnings.

35.At 5% the appropriate sum is $16,250

Future loss of earning capacity:

36.I accept Mr Wong’s submission that this is not an appropriate case for an award of future loss of earning capacity.

Special damages:

37.Sensibly, both parties were agreed on special damages in the sum of $10,000.

Interest:

38.I fix interest on PSLA at 2% to the date of the trial.  Interest on pre-trial loss (earnings and MPF) and special damages totalling $351,250 is fixed at half judgement rate from the date of the accident to the date of trial.

39.Mr Yip must give a credit for advance payment and Employee’s Compensation in the sum of $209,000 already made to him.

40.I now set out a summary of the sums that I have awarded:

PSLA:	$200,000
Pre trial loss of earnings:	$325,000
Future loss of earnings:	$660,000
Loss of MPF:	$162,250
Special damages:	$10,000
Total:	$1,211,250

This sum must be discounted by 50% for contributory damage bringing the damages awarded to $605,625. After credit for Employee’s Compensation the net sum is $396,625.

41.There will accordingly be judgement for the plaintiff in the sum of $396,625, with interest at judgement rate from the date of judgement.  There will be an order nisi for costs on that sum, on the District Court scale, that order to be absolute in 14 days.  If required the plaintiff’s costs will be taxed on Legal Aid Regulations.

42.Leave is reserved to apply the event of any error of miscalculation arising.

Mr Daniel S H Tang, instructed by Messrs George Tung, Jimmy Ng & Valent Tse for the Plaintiff

Mr C K Wong, instructed by Messrs T H Koo & Associates, for the 1^st and 2^nd Defendants