So Man v. So Ting t/a Fung Kee Waste Wooden & Metal Collection Co

HCPI 566/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 566 OF 2006

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BETWEEN

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Before: Deputy High Court Judge Carlson in Court

Dates of Hearing: 5-8 June 2007

Date of Judgment (Handed Down): 25 June 2007

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J U D G M E N T

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Introduction

1.The Plaintiff is the elder brother of the Defendant who operates a scrapyard at Tsueng Kwan O where the Plaintiff was employed as a foreman.  The Plaintiff’s duties included the dismantling of iron and metal objects such as air conditioning units and refrigerators in order that their more valuable parts made of copper and antimony might be removed and sold.  On 10 July 2003 when he was in the course of breaking up a part of an air conditioner by means of striking at it with a 10-pound sledgehammer he injured his back which has prevented him from working for over two years after the accident and, according to him, prevents him from returning to his old job.  This therefore is his claim for damages for personal injury, loss of earnings and other consequential losses.

Issues

2.Although the evidence has occupied three days, this is a straightforward case.  The Plaintiff complains that the system of work employed at the yard by his brother was a defective one.  Although, as is usually the case, the particulars of negligence and breach of duty are wide-ranging, in essence the case boils down to two allegations in particular.  Firstly, that the Defendant had not provided the workmen, including of course the Plaintiff, with suitable tools and secondly that the profit motive had been allowed to get in the way of safe practice because the Defendant required the work to be down unduly quickly so that the salvaged parts might be sold at the earliest opportunity and the remaining scrap also sold and moved out of the yard as soon as possible to make way for the next incoming consignments.  Whilst he required the workmen to process the scrap quickly he failed to employ sufficient labour to do the work.  This resulted in the work having to be done in haste so that the risk of accidental injury to a workman, having to work at speed, was increased.

3.As to tools, the Plaintiff has said that he and his colleagues should have been supplied with cold chisels made of good quality steel with which they could break through the retaining screws at the corners of the outer-casing of the air conditioners by using a conventional hammer to strike the chisel against the stem of the screw just below its head.  Instead of supplying such chisels, which are relatively expensive, the Defendant bought in inferior quality iron chisels which were brittle and lacked a sharp edge to snap the retaining screws.  I will describe in a little more detail the Plaintiff’s experience using these iron chisels in a moment.  The yard also had a supply of sledgehammers which the Plaintiff would use in the absence of suitable chisels and given the need to work fast.  The method he employed was to strike at the head of the screws many of which were rusting.  He would use a vertical striking motion by raising the head of the hammer above head height and bringing it down hard onto the screw.  This would shatter the rust around the screw and loosen it.  He would then remove the screw by using a screwdriver appropriate to the size and shape of the screw head to remove it.

A Discussion of the Method of Work

4.There is no doubt that this work, whilst technically uncomplicated, requires hard physical effort.  The Plaintiff and his colleagues were required to work up to 12 hours a day.  More than average strength and physical fitness is required.  Overall, this is a continuous process of physical work requiring the lifting off of the scrap items that come into the yard by lorry, although for heavier items there was a mechanical lifting device which would be used.  Once that is done the items need to be sorted into distinct categories of scrap and physically manhandled to different locations in the yard or stored just outside it either by lifting and carrying or by trolley.  The dismantling or break up process is also physically demanding and once that is completed the workmen would be required to help with the loading up of the lorries that would come to the yard and remove the processed scrap.

5.The Defendant has said that the tools that he provided were perfectly adequate and the methods used were tried and tested within the yard and found to be suitable.  The preferred method for the work that the Plaintiff was doing when he was injured was to use a chisel and hammer to strike at the screw.  All of this could be done quickly and safely.  He says that the use of the sledgehammer by vertical downward stroke was not one that would normally be used.  The sledgehammers that were available would be used from time to time with a lateral stroke, that is to say from side to side, for some tasks although he had occasionally seen a workman use a vertical up and down motion.

6.The Plaintiff has made a number of criticisms as to the inadequacy of tools and equipment.  His principal criticism relates to the chisels.  A selection of iron chisels that were in use have been exhibited as has a superior cold chisel.  The iron chisels are undoubtedly coarser and have a less sharp blade.  I accept the Plaintiff’s evidence that they are brittle and therefore are apt to have bits of them break off, whereas a cold chisel, which has also been exhibited, is sharper, harder and more effective.  It is also more expensive.

7.I accept that there were also a variety of perfectly adequate screwdrivers and smaller hammers.

The Argument

8.I have already described the essential features of the Plaintiff’s case.  It amounts to a composite complaint of inadequate tools and the requirement of having to work too quickly in the circumstances created by an insufficiency of manpower.

9.The Defendant’s case is that all the tools that were supplied were perfectly adequate for the tasks that the workmen had to undertake.  The chisels, although not necessarily of the best quality, are after all perfectly good chisels of the type one commonly finds in use for this type of work.  As to the precise method that an experienced workman like the Plaintiff would employ to break up an air-conditioner’s outer-casing, this would be determined by the workman as he carried out the particular task.  He had chisels, small hammers, screwdrivers and a sledgehammer to chose from.  The preferred and most frequently used method, according to the Defendant, was by a combination of chisel, small hammer and screwdriver.  Nevertheless, he has also seen a sledgehammer used, mostly by lateral stroke but also by a vertical motion.  The Defendant says that it must be left to the workman how best to do each particular task.  This Plaintiff was highly experienced and had been doing this work for a number of years.

10.The Plaintiff has demonstrated in court what he was doing with the sledgehammer when he put his back out.  There are also photographs which show him “in action” addressing an air conditioning unit of the type that he was dismantling when he was injured.  The unit was placed on the ground and was just over a foot high so that the head of the sledgehammer had to travel some distance from above his head down to its destination a foot above the ground.  He has also suggested that the ground was uneven and that a flat surface should have been provided upon which the unit could be placed before being hammered open.  The point that he was making was that on uneven ground the unit would wobble so that it was not always possible to achieve a clean strike on it.  He has also suggested, having learnt of this recently, that he and his colleagues should have been provided with a proprietary product such as WD40 which could be sprayed onto the rusting screws which would loosen the rust and enable the workman to unscrew the screw without the need for any more vigorous methods.

Conclusions

11.Miss Lau, for the Defendant, has rather pinned her case on chisels.  She has put to the Plaintiff and addressed me on the basis that the Plaintiff had no reason to be exerting himself in the way that he was by using a sledgehammer.  The chisels were perfectly adequate and he could have used them together with a light hammer and then a screwdriver.  Mr Shum, who has conducted the Plaintiff’s case in a very focused and economical way, has attacked the Defendant’s working practices.  Firstly, he has suggested that there really was no discernable system of work.  This was a case, he says, of “here are some tools now get on with it and do it quickly”.  The Defendant has a non-delegable duty to provide a safe system of work which includes the provision of adequate tools and some instruction as to how they were to be used.  In this regard, Mr Shum is, of course, absolutely correct.

12.For my part, I do not believe that this was a situation of every man for himself.  I am satisfied that the more usual method employed by the workmen was by chisel, hammer and screwdriver.  As the man in charge, the Plaintiff was aware of that.  I do not accept his evidence that the workmen were expected to use a sledgehammer, as he was, as a matter of routine.  I accept, as the Defendant has told me, that from time to time workmen would use a sledgehammer with a downward stroke through a vertical plane.  The chisels provided, although by no means of the best quality, were of industry standard, which is what the Defendant was trying to tell me although not using this particular expression.  There were plenty available and, although being of softer material than cold steel were liable to have bits fall off from time to time, were very much equal to the task.  I find as a fact that it was reasonable of the Defendant to have provided this type of chisel rather than the more expensive steel manufactured type exhibited in the evidence.

13.The Plaintiff had decided that he would not use the chisels and as a matter of routine use a sledgehammer which he found quick, only a few blows were needed on the various retaining screws to loosen them, which he could then unscrew.  He found this method the most convenient.  For my part, I find that there was nothing wrong in his using this method to do this part of his job.  He was very experienced and he knew what he was doing.  He had been able to get through the work effectively in this way for a number of years.  Unhappily, probably because he had a pre-existing degenerative back condition, which I will refer to when I come to the medical evidence, on this occasion the particular blow that he struck injured his back.

14.I do not believe that in the circumstances there was a duty on the Defendant to prohibit the Plaintiff and his colleagues from using sledgehammers in this way.  In an occupation such as this, which is undoubtedly physically rigorous and technically uncomplicated, experienced individual workmen will do the job in their own way in the light of their experience in the work, making use of the available tools.  This sledgehammer method was highly effective, the Plaintiff has said so, and in my judgment not inherently dangerous.  Individuals will sustain back injuries in a wide variety of ways and in unexpected circumstances.  This technique was, in my judgment, perfectly sensible for a physically fit man such as the Plaintiff.  The force used, although significant, was not one that would have put an obviously dangerous strain on the back.  The head of the hammer would provide the destructive force onto the top of the screw so as to loosen it.  From his description and demonstration in court of how he wielded the hammer, I am satisfied that the strain on the back would not have been so risky so as to require the Defendant to embargo its use.

15.As to the speed which the work needed to be done, I prefer the Defendant’s evidence.  Whilst I have no doubt that the work needed to be approached conscientiously and steadily, the workmen did not have to hurry such that this made what they had to do more dangerous.  There were a variety of tasks that needed to be got through in the course of a day which I have already described.  The dismantling would be done at the end.  The Plaintiff was not engaged in the constant use of a sledgehammer for hours on ends although, I accept that he would be required to break up a number of units each day.  Overall, as I have already observed, this was hard physical work, but in no way physically hazardous for a fit man like the Plaintiff and his colleagues.

16.I also accept the Defendant’s evidence that he employed an adequate number of workmen to reasonably cope with the workload.  I am afraid that what the Plaintiff has indulged in, now that he has injured his back, is to try and seek out every little imperfection in the work routine and then exaggerate it by some measure.  He has not been entirely frank in his description of what actually went on in the course of working day.  

17.This has included his criticism of the uneven ground.  I have seen the photographs.  Part of this yard is cobbled which would have provided an adequate surface to hammer onto.  One cannot expect a billiard table surface in a scrapdealer’s yard, similarly, given the chisels and hammers available and the sledgehammers it would be asking too much to expect WD40 to be supplied for the workman to spray the screws before removing them. 

18.The work practices at this yard were perfectly adequate and safe.  The Plaintiff had all the tools that he reasonably required.  He eschewed the chisels when he need not have done so.  His preferred sledgehammer method, although not expected to be used by the Defendant’s workmen, was also perfectly reasonable, safe and effective.  It is very regrettable that the Plaintiff suffered this injury but no blame can be attached to the Defendant nor, in my view, to the Plaintiff.  This was an unfortunate accidental injury that will happen in this type of job from time to time for which no one is to blame.  Accordingly, the claim must stand dismissed and there must be judgment for the Defendant with costs.  The order for costs will be an order nisi and there will also be an order of legal aid taxation of the Plaintiff’s costs.

Quantum

19.For the sake of completeness, I will briefly indicate what damages I would have awarded the Plaintiff had I found the Defendant culpable.

Pain, Suffering and Loss of Amenity

20.The Plaintiff suffered a sprain injury to his back.  The MRI scan showed a disc prolapse with bilateral nerve root compression at L4/5. In 2000 and 2002, he had also sprained his back but on each occasion it recovered following a period of rest.  Both Dr Lau and Dr Wong, the orthopaedic specialists retained by the parties, agreed that unsurprisingly for a 47-year old, the Plaintiff suffers from a pre-existing degeneration of the spine.  On this occasion, he was treated by means of physiotherapy and painkillers.  On examination, both doctors felt that the Plaintiff was exaggerating his symptoms.  His back has largely recovered although he still has intermittent pain.  His range of movement is reasonably full.  Dr Wong, for the Defendant, says that the Plaintiff’s pain is mild to moderate, 4 to 5 on a scale of 10.  Dr Lau, for the Plaintiff, does not disagree with this assessment.  The Plaintiff has now reached the point of maximum recovery.  Neither doctor would recommend him to return to his pre-accident employment on the basis that this might be asking for trouble.  Mr Shum has submitted that $300,000 should be awarded.  Miss Lau says it should be $100,000.  In my judgment, Mr Shum is too high and Miss Lau too low.  I would have awarded $180,000 under this head.

Past Loss of Earnings

21.I accept that the Plaintiff was earning $31,250.  He was given 31 months’ sick leave.  This would have produced a sum of $968,780 loss of earnings for that period.  Additionally, there is a claim for total loss of earnings from the expiry of sick leave up to judgment due to the Plaintiff’s inability to find work despite having gone to the labour department and attended job interviews.  This is predicated on the basis that he can only do light work as a messenger, car park attendant or security guard.  I do not accept that this injury has been so incapacitating as to leave the Plaintiff with such a reduced earning capacity.  Both doctors say he has exaggerated his symptoms and that he is able to do a fair degree of physical work short of hard labour.  In my view he could earn $15,000 a month doing lighter work on building sites or in factories.  On that basis, this would have produced a partial loss of $16,250 a month from the expiry of sick leave until judgment.  That would come to ($16,250 x 16 months) $260,000.  The pre-trial loss of earnings would have come to ($968,750 + $260,000) $1,228,750.  Additionally, the loss of MPF would have had to be added giving ($968,750 x 5%) and ($260,000 x 5%) $ 61,437.50.                  .

Future Loss of Earnings

22.These would have continued at $16,250 but given his pre-existing back degeneration, I would have applied a multiplier of 5 years because he would have been forced to give up this hard work anyway.  Mr Shum has taken a multiplier of 10 years but that is too generous in my view.  The figure would therefore have been ($16,250 x 12 x 5) $975,000 .  To this I would have added 5% loss of MPF giving a total of $1,023,750               under this head.  I would not have given a further award for loss of earning capacity given a comprehensive award for future loss of earnings which fully takes into account his reduced earning capacity.

Miscellaneous

23.I would also have awarded the Plaintiff his claimed amounts for tonic food, travel and swimming expenses.  Interest would have been added to these amounts at the conventional rates and periods.

Erik Shum, instructed by Messrs Leung, Tam & Wong, for the Plaintiff

Selina Lau, instructed by Messrs Lau, Chan & Ko, for the Defendant