Wong Ching Wa Bangi v. East Asia Entertainment Ltd and Others
Read the full judgment text of HCPI 1165/2004 on BabelCite. This High Court CFI judgment.
1. The Plaintiff, who is now aged 35, was employed by the 3 rd Defendant as an audio-visual technician when on the 2 nd May 2002 he was injured in the course of his employment with the 3 rd Defendant for which he now claims damages for personal injury and other consequential losses. What had happened was that the 3 rd Defendant, who is in the business of hiring out and installing audio-visual equipment, had been contracted by the 2 nd Defendant, who is a pop concert organiser, to hire and insta
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HCPI 1165/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1165 OF 2004 ____________ BETWEEN
____________ Before: Deputy High Court Judge Carlson in Court Dates of Hearing: 23rd, 24th and 25th January 2006 Date of Judgment (Handed Down): 9th February 2006 _______________ J U D G M E N T _______________ Introduction 1.The Plaintiff, who is now aged 35, was employed by the 3rd Defendant as an audio-visual technician when on the 2nd May 2002 he was injured in the course of his employment with the 3rd Defendant for which he now claims damages for personal injury and other consequential losses. What had happened was that the 3rd Defendant, who is in the business of hiring out and installing audio-visual equipment, had been contracted by the 2nd Defendant, who is a pop concert organiser, to hire and install a range of sound and video systems for a series of Sandy Lam concerts, that it was organizing at the Hong Kong Coliseum from the 3rd to the 6th May 2002. The accident 2.Most of the installation had been done by the Plaintiff and his two colleagues when it was discovered that part of the CCTV system, that had been set up and placed close to the stage on a raised platform that was about 9 or 10 feet above the ground, was malfunctioning. The TV monitor was not showing a picture. The Plaintiff was asked to climb onto the platform to check that the leads were properly plugged into the TV monitor. 3.The platform’s dimensions are highly significant. It measured 2 feet by 6 feet. Placed on it was a trestle table measuring 1 foot by 5 feet upon which was placed the 29-inch TV monitor, a mixer and a table lamp which was there to illuminate the mixer for the assistance of the operator during the course of the concert. Exhibit P1 shows the layout of the platform and the table with what was on it. The accident occurred at just after mid-day. The Plaintiff had lifted himself onto the platform by climbing up the metal frame that supported it. The lighting at the time was dim. The ‘house’ lights of the auditorium were not switched on. Some daylight was coming in from a few of the exit doors that were open and the lamp on the table was also on, but its light was narrowly focused down towards the mixer. The TV which was placed at the top left corner of the table (as depicted in Exhibit P1) was at a 45° angle so that it faced the bottom left corner of the table. The Plaintiff has said that he was slightly beyond the position marked with a triangle on Exhibit P1 on the right of the table, where he was able to pick up the signal cable and leaning over towards the TV monitor he was able to securely insert it into the back of the TV. He had to ensure that the TV was functioning properly. He says that what he had to do was to make his way back down towards the bottom right corner of the table and work his way round the bottom right hand corner of the table so as to face the screen, before he could see it sufficiently full-on to ensure that all was functioning properly. 4.It is important to have a clear picture in one’s mind of the cramped situation on top of the platform, most of which was taken up by the trestle table which, as with most tables of this sort, would tend to wobble slightly at its corners. He says that he leaned slightly forward against the edge of the table placing his hands lightly on the surface of the table. The front of his feet were under the table and from such a position he began to shuffle sideways taking short steps down towards the bottom right corner of the table. Once he had got there and as he was to work his way round the corner to the left, his leading left foot stepped off the platform, he lost his balance and fell off onto the hard floor some 9 or 10 feet below. 5.The platform was not fenced. It should be observed that it had not been erected by the 3rd nor indeed any of the Defendants. Presumably, this had been done by one of the other sub-contractors brought onto the site to prepare for the concerts. There were no safety belts, but even if there were, it would have been quite impracticable for the Plaintiff to have attempted to use one as any anchorage point would have been below the platform surface. The 3rd Defendant says that it had supplied the Plaintiff with a torch to light his way. The Plaintiff denies this, but even so, it would have been unreasonable to expect the Plaintiff to try and use it whilst he felt his way round the table. The Defendants 6.The situation of the Defendants as between themselves and in relation to the Plaintiff is important. Its importance lies in the fact that the Plaintiff has sued each of them, inter alia, as co-occupiers of the site where he was injured and therefore as owing him the common duty of care as imposed by the Occupier’s Liability Ordinance. For the sake of convenience, I take the 3rd Defendant’s situation first because, of the three Defendants, its potential liability is straightforward. As the Plaintiff’s employer, it required him to mount the platform to do what he was doing when he fell off and was injured. As such it is capable of being held liable in negligence in the various ways that employers’ can be in failing to discharge their duties to their employees, as well as for breach of statutory duty including under the Occupier’s Liability Ordinance. 7.The position of the 2nd Defendant is also, relatively speaking, uncomplicated as against the Plaintiff, notably because judgment in default has already been obtained against it with damages to be assessed. That having been said, the position of the 1st Defendant vis-à-vis the 2nd Defendant and, consequently the Plaintiff as well, needs to be carefully examined. The relationship between the 1st and the 2nd Defendants 8.The 1st Defendant defends this matter on two bases. Firstly, that by virtue of its position in relation to the organisation of these concerts, it owed the Plaintiff no duty of care. If it fails on this ground, it denies negligence and/or breach of statutory duty. It is essential therefore to determine whether it owed the Plaintiff a duty of care. This must be answered by considering its proximity to the organisation of the concerts having regard to its relationship with the 2nd Defendant which was entirely contractual. The contract is at pages 88 to 91 of the Bundle. 9.The 2nd Defendant, through a Mr Yeung, who is well-known in local show business circles is an organiser of pop concerts. It is also the ‘sole and exclusive’ agent of the popular female canto-pop singer Sandy Lam. Under the contract made in January 2002, the 1st Defendant, as promoter of the concerts by Sandy Lam, engaged the 2nd Defendant (“the Agent”) to organise the concerts at the Hong Kong Coliseum. This is expressed in paragraph B of the preamble of the contract in these terms:
It is this expression of intention that informs and drives the terms of the agreement between the two companies. 10.Mr Paul Liu who was a director of the 1st Defendant and closely involved in the bringing into effect of this agreement between these two companies has sought to explain the matter on the basis that all the 1st Defendant was doing with the 2nd Defendant was to ‘buy a package’ from the 2nd Defendant, whereby the 2nd Defendant was organizing the concerts for which the 1st Defendant was providing the finance and for which it would hope and expect a profit based on the profit made from ticket sales. That profit being calculated on the basis of gross ticket sales less the cost of putting on the concerts such as the hire of the auditorium, the artiste’s fee, technical expenses and so forth. As such, Mr Liu says that the 1st Defendant’s involvement was at a distance, financial only, and everything else involved with the logistics of the organisation of the concerts was with the 2nd Defendant. It was not until June 2004 that the 1st Defendant had learnt, for the first time, of this accident and of the Plaintiff’s claim. Its position is far too remote to attract any legal liability towards him. It was not an occupier of the site and it had no relationship with the Plaintiff. 11.The correctness of this contention needs to be examined by reference to the contract with the 2nd Defendant. A number of its terms point to the correct conclusion. Clause 1 sets out the terms of engagement under which the [1st Defendant] ‘irrevocably appoints the [2nd Defendant] as its sole and exclusive manager to plan, supervise and manage the concerts … and to negotiate and conclude all contractual commitments as Agent of the [1st Defendant].’ By Clause 1.2 subject to the [1st Defendant’s] performance of its obligations under the agreement the [2nd Defendant] ‘shall procure the performance of [Sandy Lam] at the concerts and at all planned and approved publicity appearances for the promotion of the concerts.’ 12.Clause 2, with its various sub-clauses sets out the [2nd Defendant’s] obligations to the [1st Defendant]. It is instructive to set out these in full:
13.It is plain therefore that all the ‘leg-work’ was to be done by the 2nd Defendant who was required to put it all together. 14.The production budget at Clause 5 is also worth noting:
It is plain from these provisions that the parties are to agree the production budget with cost-overruns being to the 2nd Defendant’s account. 15.Thereafter, at Clause 6 comes the payment schedule by which the 1st Defendant will pay the 2nd Defendant three payments, one on the signing of the agreement, another on or before the 1st April 2002 and a final one on or before the final concert, these payments being the Performance Fees and the Production Budget subject to Sandy Lam and the 2nd Defendant performing their respective obligations under the agreement. 16.There then comes an important Remuneration Clause 7:
It seems very clear from this and from certain miscellaneous provisions in Clause 8, to which I will make reference presently, that the 1st Defendant has in reality ‘employed’ the 2nd Defendant, not in a master/servant sense but as principal and agent for which the 2nd Defendant will get 10% of the net profit and the 1st Defendant, as the concert promoter, the remaining 90%. The 1st Defendant bears the production costs as budgeted and the cost of Sandy Lam’s services. 17.This interpretation is reinforced by certain Clause 8 miscellaneous provisions which are these:
18.It is very plain that the 1st Defendant, who has had to bear all the production costs, has the right to have a say in the planning, execution and management of the concerts and will therefore have the right to inspect the books and records of the 2nd Defendant as they relate to the concerts. 19.There is no doubt in my mind that these were very much the 1st Defendant’s concerts. He was paying to put them on, as a promoter does, and he engaged the 2nd Defendant to do this for it, for which it would be paid a 10% fee. The agreement, not surprisingly, has given the 1st Defendant close control over the 2nd Defendant’s activities and the right to dismiss it should there be a shortfall in the expected performance of its obligations. Conclusion on this issue 20.This being my view, I have no doubt that the law will impose the duties of an occupier of the site on the 1st Defendant. All the necessary elements of control that the Occupier’s Liability Ordinance requires are present in the 1st Defendant’s case. He and the 2nd Defendant were joint occupiers of the site. The Plaintiff was doing work in preparation of the concerts – which was work being done on the 1st Defendant’s behalf as the promoter of the event. It is not good enough for Mr Liu to say, as he does on this occasion, that ‘we merely purchased a package from the 2nd Defendant’. That is not the reality in both fact and law. These were the 1st Defendant’s concerts and it had engaged the 2nd Defendant to organise them on its behalf, whilst retaining a very firm control over the way that the 2nd Defendant went about organising the concerts. It is this clear and ever present element of control that establishes the 1st Defendant’s presence as a joint occupier with the other two Defendants. This being the case, I must now have regard to the evidence in order to decide the case on the merits in terms of whether negligence and/or breaches of statutory duty have been proved by the Plaintiff. Was the 3rd Defendant in breach of its duty to the Plaintiff? 21.To require a workman to climb up a platform of this dimension about 9 or 10 feet above the ground in dim light and to expect him to manoeuvre about on it is really asking for trouble. The hackneyed expression ‘an accident waiting to happen’ is entirely apt. This was not a safe place of work. The Plaintiff was entitled to expect either a more substantial platform in relation to the size of the table so that there would be more room for him to walk about on and fencing around it. The suggestion is that he had a torch to overcome the dim ambient light. He denies this, but I am persuaded on all of the evidence, including his pleaded case (the reply) and what he told the loss adjuster’s representative, that he was provided with a torch. Nevertheless, I do not believe a torch would have been of any assistance to him. He really had very little room to move about on and the torch would not have helped one bit. He had to feel his way round the table and I cannot imagine how a torch could have been usefully deployed by the Plaintiff just before he stepped off the platform. I am in no doubt that the 1st Defendant was guilty of negligence and breach of statutory duty as is pleaded against it in the amended Statement of Claim. This being so, there must be judgment against the 3rd Defendant. The case against the 1st and 2nd Defendants 22.Judgment has already been entered against the 2nd Defendant. The situation here is one covered by the duty owed by an occupier to a lawful visitor to discharge the common duty of care to that visitor. Where both of these Defendants were occupiers of this site, they have singularly failed in that duty. They have permitted the situation to occur whereby this workman was required to work in such precarious circumstances. The pleaded case against them has also been amply made out and there must therefore also be judgment against them. Contributory negligence 23.All three Defendants submit that if the Plaintiff were to succeed, as he has, in establishing liability, then there should be a finding that he has contributed to his injury through his own negligence in failing to take sufficient care for his own safety. In my judgment, it lies ill for a defendant who has put a plaintiff in this obviously unsafe situation to then say that he has been negligent himself. I can detect no basis for a finding of contributory negligence. If anything he was being as careful as he could by shuffling sideways along the platform when he accidentally stepped off. There is nothing in his behaviour which can be said to be negligent in the circumstances that he found himself in. He must therefore recover in full. Contributions between the Defendants 24.Before I deal with quantum, I can conveniently dispose of this issue. The Defendants have served each other with contribution notices. Mr Charles Wong for the 3rd Defendant says that I can fairly dispose of this by saying that each Defendant should bear a third of the blame. I do not agree. It seems to me that the employer should contribute 50%. It behoved the 3rd Defendant to ensure a safe place and system of work and it directed the Plaintiff onto the platform which was wholly unsuitable in the circumstances which I have already described. 50% is the correct contribution in its case. The co-occupiers being the 2nd and 3rd Defendants will bear the remaining 50% jointly and severally. This, in my view, is a fair apportionment of blame as between the three Defendants. Quantum of Damages Pain, suffering and loss of amenity 25.The medical history can be conveniently found at page 267, being part of Dr Poon’s report, he having been retained by the Plaintiff’s solicitors. Having fallen to the ground, the Plaintiff landed on his back and hit his head, briefly losing consciousness. When he came to he was able to get up and walk. His right shoulder and left wrist were painful and his left knee was bleeding. He went to the Accident and Emergency Department of the nearby Kwong Wah Hospital and was found to be fully conscious. His right shoulder was mildly tender but he had a full range of movement. There was an abrasion on his left fore-arm and a 2-centimetre laceration on the left knee. He was given an anti-tetanus injection and the laceration was sutured and he was then sent home. A sick note was given to him. He was next seen 9 days’ later on the 11th May when the doctor has recorded that the wound had healed and his stitches were removed. He was given pain-killers and further sick leave. An MRI examination of the right shoulder confirmed an injury to the superior labrum and a SLAP lesion of the right shoulder was diagnosed. He underwent 19 sessions of physiotherapy from the 13th June to the 28th August 2002. On the 23rd February 2003, he underwent arthroscopic surgery on the right shoulder to repair the SLAP lesion. After the operation, physiotherapy was resumed as from the 13th March 2003 and he received 46 sessions of physiotherapy and was finally discharged on the 19th December 2003. He also received occupational therapy from the 5th June 2003 to the 27th November 2003. In February 2004, he underwent arthroscopic surgery to his left shoulder for a similar SLAP lesion to the left shoulder, but that falls to be ignored for the purposes of the assessment because the agreed medical evidence is that the left shoulder damage is wholly unrelated to this accident. 26.Dr Poon examined the Plaintiff on the 30th August 2004 for the purposes of his report. He has observed that the Plaintiff was in good general health. Dr Poon comments that the main injuries relating to the accident were the soft tissue injury to the cervical spine and the SLAP lesion to the right shoulder. The injury to the cervical spine, he describes, is not unlike that from a whiplash injury causing mild soft tissue injury to the discs and the rear facet joints of the cervical spine. He expresses the view that the treatment for the right shoulder was appropriate. As to further treatment and prognosis, he has come to the view that the right shoulder injury has properly reached maximum medical improvement and that physiotherapy is unlikely to significantly improve the present range of movement, pain and weakness, the Plaintiff having complained to him (page 268) of stiffness and feeling of heat in the neck, an inability to relax the muscles of his shoulders, tightness in the right shoulder muscle on trying to reach out with his right arm and a decreased power of the right shoulder. He is not able to vertically lift loads of more than 30 pounds nor to push loads more than 25 pounds. As to the Plaintiff’s ability to return to his pre-accident work, Dr Poon suggests that provided he does not have to handle loads of more than 25 pounds, he should be able to return to his pre-accident employment. If this is not possible, then he agrees that the Plaintiff will have to look for other, less physically demanding jobs. 27.Dr Lau, the Defendants’ expert, is in broad agreement with Dr Poon. He says (at page 281) that the Plaintiff’s shoulder should have improved after the operation and subsequent rehabilitation and that having regard to the right shoulder injury alone, that he should be able to return to his pre-accident job provided he avoids lifting heavy objects especially above shoulder height. 28.Of relevance to this head of damages is the fact that the Plaintiff says that he is unable to return to his very serious hobbies of shooting guns at a registered gun club as well as playing the drums and the saxophone both of which gave him much pleasure. As to his musical skills, he had reached a standard where he was able to play in bands. His rifle shooting is now not possible because of the recoil of the weapons that he uses, such as sub-machine guns and rifles. In respect of his drum playing, he says that he can only play for about 30 minutes after which he experiences shoulder pain so that it is impossible for him to continue. 29.By way of general comment, in relation to the overall assessment of damages and now with reference to the loss of amenity in terms of his inability to indulge in what were, for him, highly enjoyable hobbies, I have formed the view that the Plaintiff has not really tried as hard as he reasonably could. Whilst I have formed a favourable impression of him as a pleasant and undoubtedly able individual, he has come over as someone who has tended to give up without any really good reason. There is no doubt that he is possessed of a pleasant personality and that, at all events, before the accident, he was someone who enjoyed life to the full. He successfully completed his secondary education and then spent a considerable period of time in Europe living in France, Belgium and Spain where he was able to work part-time and enjoyed the many advantages of living in those countries. That is an experience which, I have no doubt, he has found life-enhancing. Apart from being a talented musician and no doubt a competent shot he was able to secure employment for over 6 years working for GAP, as a merchandiser, working in various aspects of that company’s extensive garment business. I have no doubt he is someone of considerable ability. He then gave that up, perfectly reasonably, to take up work as an audio-visual technician because this is what he wanted to do. He was very interested in the music and show business industry and he wished to break into that industry in a serious way. I shall return to this aspect to the evidence presently when I consider the claim for future loss of earnings. 30.The comments that I have just made do have a bearing on the claim for loss of amenity. The shoulder injury and the difficulties with his neck, whilst giving rise to the undoubted pain and discomfort, need not necessarily put an end to the Plaintiff’s hobbies had he been made of sterner stuff. In my view, he can still indulge in his hobbies albeit on a more restricted basis, and I propose to assess damages under this head in this way. 31.It seems to me that Mr Gidwani, who appears for the Plaintiff, has pitched the claim under this head too high in suggesting an award in the region of $400,000.00, In my judgment, this is not that sort of case. I have been shown a number of authorities which tend to support a figure in the order of $200,000.00 to $250,000.00. I propose to award $225,000.00 for pain and suffering. Pre-trial loss of earnings 32.There is not much between counsel in this regard and I would have thought that the 21 months’ sick leave, supported by Dr Poon, up to the 28 February 2004, although erring on the side of generosity is acceptable. The Plaintiff’s pre-accident earnings I take to be $10,100.00 and so that will need to be multiplied by 21 months which comes to $212,100.00. In addition I consider it fair to allow him a further 6 months in which to find employment providing a further amount of $60,600. The total under this head should therefore be $272,700. Future loss of earnings 33.As so often happens, this represents the major part of the claim. It is under this head that the comments that I have already made about the Plaintiff in respect of his claim for loss of amenity are particularly pertinent under this head. Since his recovery, he returned for a brief period to office work, but since that he has remained unemployed and is currently living on the proceeds of his employee’s compensation award. He has made contact with friends in the audio-visual production industry to see whether work is available and he has been disappointed. Mr Gidwani, on his behalf, has put the case on the basis that he really can’t do anything more than rather menial work which would earn him $5,000.00 a month and this part of the claim is calculated on that basis. I cannot accept this submission. As I have already observed this is an able individual who is highly presentable and well-educated. He has advantages, given to him through travel and living overseas, which most Hongkongers do not enjoy. There is no doubt in my mind that following the expiry of his sick leave very nearly 2 years ago that he should have found employment enabling him to earn in the order of $10,000.00 which is what he was earning at the time of the accident and as a result I make no award for future loss of earnings. Loss of earning capacity 34.In my judgment, there should be an award under this head. The Plaintiff claims $200,000.00. I have to have regard to the nature of his disability which although real, is not so severely disabling. This is always a difficult assessment to make, but doing my best, I would have thought the appropriate award under this head is $150,000.00. Special damages This is for tonic food, travelling expenses to and from hospital and for a hospitalization fee of $218.00. The largest part of the claim is for the tonic food in the sum of $6,800.00. As so often happens, this is not supported by receipts nevertheless, I am prepared to allow for this in full having regard to the fact that the period of sick leave was for as long as 21 months. A reasonable amount, in my judgment, is $11,000.00. Future medical expenses 35.The medical evidence is agreed to the effect that the right shoulder injury has reached the stage of maximal improvement, and that being so, there can be no justification for any award under this head. Summary
Interest 36.The plaintiff will be awarded interest on general damages at 2% from the date of the writ to the date of judgment and on special damages from the date of the accident to the date of judgment at half the judgment rate and thereafter at the judgment rate until payment. Costs 37.The plaintiff having succeeded, there will be an order nisi that he should recover his costs of the action from the Defendants together with an order for legal aid taxation of his costs if he is in receipt of a legal aid certificate. Having regard to the size of the award, the costs must be on the District Court scale only.
Mr Victor Gidwani, instructed by Messrs C.Y. Chan & Co., for the Plaintiff Mr Carl Yuen, instructed by Messrs Vincent T.K. Cheung, Yap & Co., for the 1st Defendant Mr Charles Wong, instructed by Messrs Waller Ma Huang & Yeung, for the 3rd Defendant |
Cases cited in this judgment
Further hearings and rulings under HCPI 1165/2004