Lau Chok Ting v. Chun Wo Construction and Engineering Co Ltd and Others
Read the full judgment text of HCPI 1169/2004 on BabelCite. This High Court CFI judgment was delivered on 11 June 2007.
1. The plaintiff had been working as a material handler for the past 18 years up to the end of 2001 since his coming from the Mainland to Hong Kong 20 years ago. In mid-December 2001 he was introduced by one Mr Wong to work at a site in Tin Shui Wai. He met one Tung Yung Wo (董用和) of the 3 rd defendant (董是國), who was his supervisor.
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HCPI 1169/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1169 OF 2004 ----------------------------- BETWEEN
Before : Hon Yam J in Court Dates of Hearing : 18-20 April 2007 Date of Judgment : 11 June 2007 ------------------------ JUDGMENT ------------------------ The story 1.The plaintiff had been working as a material handler for the past 18 years up to the end of 2001 since his coming from the Mainland to Hong Kong 20 years ago. In mid-December 2001 he was introduced by one Mr Wong to work at a site in Tin Shui Wai. He met one Tung Yung Wo (董用和) of the 3rd defendant (董是國), who was his supervisor. 2.On 31 December 2001, he started the afternoon work at about 1:00 p.m. By 2:00 p.m. he was instructed by Tung Yung Wo to transport concrete slabs to the site lift to be used in the upper floors. He was assisted by a co-worker whose name according to him is張國榮. (Tung Yung Wo said the co-worker’s name was葉國榮, but nothing would turn on the actual name of the plaintiff’s co-worker. My impression is that the plaintiff probably confused his name with the name of the late popular singer.) They discussed as to how to put the concrete slabs down from 2 stacks on wooden pallets. 3.According to the plaintiff, his co-worker was standing on the other side of the second wooden pallet and pushed the concrete slab towards him. The concrete slab was about 3½ feet x 2½ feet and 2½ inches thick. The stack was about seven to eight feet high. When the co-worker pushed the concrete slab towards him he would hold it and balance it on the stack first whilst his co-worker would climb down and come to him. The two of them would take the concrete slab onto a wheelbarrow. They have succeeded in unloading a few concrete slabs until the stack was about five to six feet high. 4.However, by about 2:30 p.m., when his co-worker pushed a slab towards him the slab slid down. Since it was very heavy in the order of about 150 pounds, he could not hold it before his co-worker came down to assist him and he therefore fell to the ground. He said his back was injured and he felt very painful. 5.He was then taken to the safety officer of the site. Thereafter he apparently went to the hospital by taxi himself after the incident was reported to the safety officer of the site. The issues 6.In this action the plaintiff claimed against the three defendants for negligence and/or breach of duty under the common law and also under three statutes, namely :
7.In this case in respect of liability the following issues are relevant :
How did the plaintiff injure his back? 8.Only the plaintiff himself gave evidence for the plaintiff and the defence only called the said Tung Yung Wo. He turned out to be the supervisor of the plaintiff although he did not say so in his original witness statement. He was related to the 3rd defendant Tung Shih Kwok as clansman only. He himself was also employed by the 3rd defendant. 9.According to Tung the two stacks of concrete slabs was not more than four to five feet high and the safety officer would not allow material to be placed higher than that any way except perhaps for very light materials like insulation boards. That afternoon he told the plaintiff to move slabs with his co-worker by the name of葉國榮. However the slab was only about 1½ feet x 2½ feet. But he said that the slab was about 5 inches thick. In any event he agreed the slab was about 150 pounds in weight. 10.At the beginning, he actually had observed the plaintiff and his co-worker unstacking and moving several slabs before he went to another part of the site. He said that they did so by taking the slab down on the same side, and he later on explained that he meant that each of them were to take one side of a slab and slide it off the stack and place it on a wheelbarrow. At the site there was a forklift available and it was operated by one Uncle Hung (洪叔). However he said no forklift would be needed to move the slabs as it would be a waste of labour because the slabs would have to be tied to the forklift and then untied. Later on he was informed that the plaintiff was injured. 11.I am afraid that certain parts of Mr Tung’s evidence were not in his original statement. He had never said that he was the supervisor. Instead, he put forward the version that he was as much a material handler himself as the plaintiff. He did not say that at the material time the plaintiff was instructed by him to unload the concrete slabs. Exactly how the plaintiff and his co-worker took down the slabs from the stack, as Mr Tung put it, was never put to the plaintiff in cross-examination. 12.I do not find Mr Tung’s evidence credible at all. Insofar as his evidence was in contradiction to the plaintiff’s, I prefer the plaintiff’s evidence except on one point, and that is, the height of the two pallets of concrete stacks. 13.It is quite difficult to imagine that the concrete stacks could be as high as seven to eight feet when the two of them started to unload them. As demonstrated in court, the plaintiff could only reach a height of seven feet by extended hand. Therefore it is quite impossible for him to hold concrete slabs of that weight from the other side, albeit that it was slanting a bit after his co-worker pushed it to slide down a little bit. There might well be an exaggeration due to faulty memory of the plaintiff and, in this respect, I prefer Mr Tung’s evidence that the stack was about five feet high. However it did not change a bit as to how the accident occurred since it is common ground that the plaintiff had injured his back whilst he was taking down the concrete slabs. 14.Since his co-worker was not injured at all, I prefer the plaintiff’s evidence that it was his co-worker who pushed the concrete slab towards him, and that is why he bore the whole weight of the slab alone and injured himself when the slab slid down towards him. Was the plaintiff self-employed or employed by the 3rd defendant? 15.The defence was trying very hard to find a case that the plaintiff was an independent contractor and not employed by the 3rd defendant. However, even Tung (董用和) for the 3rd defendant said that both the plaintiff and he himself were employed by the 3rd defendant董是國, and董用和himself had been working at the site for a few months already. That should put an end to the matter. 16.Further, the plaintiff was receiving cheques by way of salary from董是國directly. It is evident from his savings account. Although in the past for the years 1999/2000 he declared that he has an income of more than $1 million and said that he was asked by the sub-contractor to declare that amount which in fact he received not only for himself but a number of other co-workers. However that was in respect of a different site at a different time. Circumstances of those dealings were not fully disclosed. Even though that incident might be a sub-contracting dealing rather than an employment, this does not mean he was also an independent contractor in this incident. He was introduced to work for 董是國 and received a salary at about $680 a day. All the surrounding circumstances indicated that he was employed by the 3rd defendant and therefore he was an employee working at the site. Were the defendants liable? 17.I find that the defendants are all liable for negligence and/or breach of duty under those particulars pleaded in paragraph 10 of the Statement of Claim from (a) to (j). They are as follows :
18.Further, I also find that according to the facts as presented by the plaintiff, the defendants are liable under section 6A of the FIUO by failing to ensure the health and safety at work of the plaintiff employed by the 3rd defendant at the site. 19.Further, the 3rd defendant, as the employer of the plaintiff, failed to ensure the plaintiff’s safety and health at work in that they had failed to provide system of work that was safe and without risk to health. 20.They have also failed to maintain the work place in a condition that was safe and without risk to health, contrary to sections 6 and/or 7 of the OSHO and regulations 24, 27, 28, 29, 30 and 31 of the OSHO. 21.Further, the accident was caused by the negligence of the 1st and/or 2nd and/or 3rd defendants in that they themselves or their servants and/or agents were in breach of their duty of care under the OLO. Was the plaintiff liable for contributory negligence? 22.I do not find the plaintiff liable by way of contributory negligence at all. The fact that forklift was available at the site was neither here nor there. Even his supervisor董用和said that it would be troublesome to use the forklift and he had never instructed the two workers to use the forklift. Of course the plaintiff said that his impression was those forklifts could not be used by them as they belonged to the main contractor or its sub-contractor. 23.It is quite clear that in Hong Kong, manual labour are exposed to this kind of industrial hazard when they were asked to lift heavy objects, albeit that the plaintiff was in possession of a safety card after training and had attended the seminar at the outset of his work at the site. It is one thing that the site safety officer was trying to maintain the safety of the site and the guidelines were clear that labour should not lift heavy objects, and in case they do they should exercise certain precautions and safety postures. It is another thing that they were instructed to do manual labour at a quicker pace with no regards paid by the supervisor as to what they should or should not do. The plaintiff was just instructed to unload those heavy concrete slabs with another co-worker and they just obeyed the order when they were asked to do so. One cannot blame the plaintiff for not asking for more assistance from co-workers or to ask Uncle Hung to use the forklift to unload the slabs. He was simply not instructed to do so. Quantum Medical history 24.After the accident the plaintiff went to the A&E Department of the Tuen Mun Hospital (“TMH”). He had low back pain. However the x-rays were normal and the doctors just diagnosed his injury as a back sprain. He was treated and discharged on the same day. 25.The plaintiff continued to experience back pain and attended TMH on subsequent occasions. He was eventually referred to the Orthopaedic Clinic where he underwent a number of tests and received various forms of therapy. 26.His back pain persisted and an MRI scan was done only as late as 8 December 2002, i.e. nearly a full year later. It was only by then that the MRI scan showed degenerative changes of discs at L2 to S1 levels, with mild posterior prolapse (disc bulging) at L4/5, dural sac and nerve roots free from impeachment with mild posterior bulging of the disc at L5/S1. Doctors were of the opinion that the pain over the left side of his back was caused by the accident. This was subsequently confirmed also by Dr Lau Hoi Kuen for the plaintiff and Dr Danny Tsoi for the defendants. 27.The plaintiff continued to receive physiotherapy until June 2002 and occupational therapy until January 2003. In April 2004 he was checked by Dr Lau for the plaintiff. Dr Lau was of the opinion that the accident had left the plaintiff with tenderness over the left paraspinal muscles of his lower back and he was under constant pain because of the prolapsed L4-5 disc. He could walk and squat normally and there was no evidence of nerve root compression affecting his lower limbs. 28.Further Dr Lau was of the opinion that the plaintiff’s injury was more significant than was diagnosed by the MRI report and there was definite and significant disc pathology. Whilst the degenerative changes of the L3-4, L4-5 and L5-S1 may have been due to natural degeneration and the stresses of a physically demanding job, the disc prolapse at L4-5 was related to acute trauma suffered during the accident. Thus, the accident was considered to be the sole cause of the persistent pain in the plaintiff’s back. 29.It may be conveniently stated here that in the law of tort, a tortfeasor must take a victim as he finds him. This has been described as the “thin skull rule”. The fact that the plaintiff had already had degenerative changes of his spine at the lumber position is not open to the defence to say that his traumatic injury was not caused by the accident or it was partly due to his degenerative condition. In other words, the tortfeasor must acknowledge that the degenerative changes could not have resulted to his present condition unless there was this traumatic accident which had caused his condition to the extent as it is now. 30.However it is another thing if the plaintiff had other unrelated medical conditions which has aggravated his health and caused his mobility to degenerate. That would be another consideration in assessing the amount of the quantum of damages which I shall consider in a moment. 31.The plaintiff was later on jointly examined by Dr Lau and Dr Tsoi at the instructions of the defendants. In their joint report, both Dr Lau and Dr Tsoi made similar physical findings during their respective examinations, and that the cause of the plaintiff’s back pain was the accident. 32.Both Dr Lau and Dr Tsoi agreed that the sick leave granted to the plaintiff from the date of accident to 6 February 2003 was reasonable and that he had suffered 5% impairment of the whole person. 33.Further Dr Lau felt that there was no evidence to indicate that the plaintiff was exaggerating his injuries and the back pain was most likely a result of the prolapsed L4-5 disc. In Dr Lau’s opinion the plaintiff could not return to his pre-injury job and should take up lighter jobs, such as a decoration or factory worker in the future. 34.However, Dr Tsoi thought he could return to his pre-injury work with limitations, in a sense that he was not fit to perform heavy physical jobs and required assistance in lifting heavy objects. 35.After the plaintiff’s sick leave period had expired, he tried to work in his friend’s house in February 2003. However only after two hours he was unable to cope with lifting objects and stocks. 36.He went back to work on 28 May 2003 as a casual worker with a sub-contractor of Hong Kong Construction (Holdings) Limited. He was working part-time as a material loader but he said that he could not cope with this vigorous job and left on 30 September 2003, i.e. he had tried but had to give up when he could not endure any more. He said in evidence that sometimes he could not do full-time daily work and had to take an afternoon off when he experienced back pain after working in the morning. 37.The timing of his cessation of work by the end of September 2003 coincided with his other serious medical conditions and they had no causal connection with the accident. This will be dealt with later on in this judgment. Pain, suffering and loss of amenities 38.Counsel for the plaintiff submitted that the plaintiff is entitled to $250,000 by way of PSLA whereas counsel for the defendants suggested the amount of $100,000. 39.In my view, the plaintiff is entitled to $150,000. 40.Before the accident the plaintiff was an active person who used to enjoy a variety of sports and in particular jogging and practising Tai Chi. Since the accident his physical activities are limited to light exercises and Tai Chi with certain limitations. 41.In the case of Ho Moh v. Tam Yiu Keung t/a Yiu Sun Construction Engineering Co. and Another, HCPI 1251/1998, the plaintiff was injured at a construction site and a subsequent MRI revealed a small disc prolapse at L3-4 level and there was a suggestion of a defect in the pars interarticularis of the L5 vertebra. It was held that the case did not fall within the serious category and the plaintiff was awarded $150,000 for PSLA. This is the most similar case to the plaintiff herein. 42.In the other case of Woo Wai Kuen v. Li Siu Keung t/a Alex's Kitchen, DCPI 309/2001, the plaintiff suffered a back injury when she slipped and fell at work. At the hospital, the X-ray revealed a small fracture of the sacrum. This was a minor injury although she was advised not to perform heavy work and continued to experience persistent pain especially in cold weather. The award for PSLA was $150,000. 43.In Lee Yuk Lan v. Royalette International Ltd, HCPI 187/1995, the court decided that an injury resulting in diffuse back pain with no fracture only entitled the plaintiff to damages of $150,000 for PSLA. The injured plaintiff was able to stand for only about an hour at a time and had difficulty in carrying more than five pounds of weight. The neurological examinations revealed no neurological deficit in her lower limbs and the straight leg raising tests were normal. Permanent disability was assessed at 3% and she was awarded $150,000. 44.I consider that the aforesaid three cases were similar cases whereas the other cases cited by counsel for the plaintiff with PSLA award at $200,000 to $300,000 were more serious cases involving root compression and other more serious medical considerations. The average monthly salary of the plaintiff 45.There is a grave dispute as to the monthly earning of the plaintiff before trial. Several documents were perused but I find that the plaintiff was bordering on exaggeration in stating his past earnings. 46.To start with, the plaintiff produced the Inland Revenue tax demand for the year 1999/2000 and the total income was $300,900. This would amount to an average monthly salary of $25,075 and on the usual 26 days of work, this will amount to about $965 a day as a plasterer. The plaintiff had never said that his daily wages would be as high as nearly a thousand. 47.In fact the total income stated in the tax demand note was $1,900,000. The plaintiff said that several hundred thousand was attributable to salaries paid to other workers through him from his employer. Thus, much would depend on the credibility of the plaintiff’s oral evidence. 48.For the year 2000/2001, the tax demand showed an annual income of $592,500 with one company and $41,783 with another. The plaintiff said his own salary was only $191,783. Again when it is divided by 12 months, the monthly salary would be $15,982 a month. He said, however, there were some months that he did not work and his monthly salary for the year was $20,000 odd per month for those months he had worked. Again the documentary evidence would depend on the plaintiff’s oral evidence. 49.In the year of the accident, i.e. for 2001/2002, the tax document showed that the plaintiff had an income of $69,700 whilst he was working for Union & Construction Limited. The plaintiff said he earned an additional $25,000 during this fiscal year making his total income $94,700. However, he had an accident and did not work for the last three fiscal months and thus his monthly income for nine months would only be $10,522. 50.The aforesaid evidence indicated that the income of a material handler or a plasterer fluctuated a lot especially during those years after 1998 when the construction industry had plummeted a lot up to the SARS period in 2003. 51.The plaintiff’s last rate of salary for a short period or a few months whilst work was available before the accident was $680 per day. At 26 days a month his salary would be about $17,680 per month. 52.According to the defendant witness Tung, he said that his daily wage in 2005 was $550 and he was working for 25 days a month, giving him $13,750 per month. Mr Tung and the plaintiff were doing the similar job. Accordingly, for the pre-trial period from January 2002 up to the trial, I will take the average salary of the plaintiff at $14,000 per month. This had already taken into account the fact that on one side there would be a higher salary of $680 per day and sometimes with overtime, but on the other hand there will be unemployment during certain periods in between. 53.The plaintiff also accepted that since the expiration of sick leave, he would be able to do some lighter job and would find one after about seven months. 54.Accordingly the pre-trial loss of earnings of the plaintiff would be :
The plaintiff’s other unrelated sickness 55.In December 2003, the plaintiff was found to have diabetes mellitus. He is also a Hepatitis B carrier. Further he was suspected to have tuberculosis and he was on TB treatment since then. By March 2004, his diabetes mellitus was found not to be in full control. In July 2004, it was reported that he refused to have insulin treatment whilst he was having anti-TB treatment. By that time he was found to have a two-week history of jundice which no doubt was related to his poor liver function. At the same time gall stone was detected in his gall bladder. His liver was deteriorating with confluent necrosis and cirrhosis. 56.Fortunately, a donor liver was available and liver transplant was done on 27 July 2004. He was discharged from QMH on 8 August 2004. It should be noted that for this period of eight months even without the accident he should not be able to work, at least not as fully as he had been before. Thus his loss of pre-trial earnings should be less 8 months at ($14,000－$6,000), i.e. $64,000 and the total should then be :
57.Further because of the deterioration of health due to the onset of the aforesaid illness, the working life of the plaintiff is expected to be diminished considerably as a manual worker even without the accident. 58.Accordingly the post-trial loss of earnings would have to take into account his post-trial unrelated illnesses. Loss of future earnings 59.In respect of loss of future earnings, Dr Lau is of the opinion that the plaintiff could not go back to his original work as a manual labour. Dr Tsoi however is of the opinion that the plaintiff would be able to return to his pre-injury job albeit with reduced capacity to work. 60.I prefer the evidence of the opinion of Dr Lau. It is true that the plaintiff was only suspected of having TB and this treatable disease would not have affected the plaintiff’s employability after treatment. After all, it has never been confirmed that the plaintiff actually was infected with TB. 61.However, Dr Lau also said that the same could apply for his condition of diabetes. It is however common general knowledge that a person suffering from diabetes and especially one whose condition was for some time uncontrollable and had deteriorated (as in the case of the plaintiff), one would be more prone to hypoglycaemia. That means the plaintiff could easily get tired after working for a short while. He would have to take carbohydrates from time to time in order to keep him going. He would surely suffer the risk of not being employed when it is open to a potential employer to engage other people of younger age and stronger build. 62.This is particularly so when the plaintiff is now suffering from low back pain as a result of the accident. As counsel for the plaintiff submitted, this kind of job was not a type of job that could be performed at less than full capacity because it was physically intensive and no employer would waste money employing the services of a physically deficient worker when he could replace him with healthy worker who could perform all aspects of the job more efficiently. No employer of a construction site would hire a material loader if he knows that the incumbent only could handle objects up to 40 catties. 63.Dr Tsoi also stated that the plaintiff would not have been able to work as a plasterer by the time he was 50 years old even if he had not been injured because of his degenerative changes in his back. 64.Dr Lau however disagreed with Dr Tsoi and said that it would be impossible for a physician to accurately predict when and how the degeneration in the plaintiff’s spine would have affected his future employability. 65.According to the case cited by counsel for the plaintiff, normally for a person similar to the age of the plaintiff when he was injured, a suitable multiplier would be about 9. Counsel for the plaintiff then considered that a labour intensive job such as the plaintiff’s before the accident would probably lead to a reduction in the multiplier to 7 for the loss of future income. 66.However, due to the condition of the plaintiff before the accident and the unrelated medical condition and his medical condition after the accident, i.e. the onset of diabetes, suspected TB, and liver transplant, and in the ordinary course of things, the plaintiff would have a shorter working life span and the multiplier should be further reduced. In my opinion an appropriate multiplier should be about 3, taking all the vicissitudes of life into consideration and in view of the plaintiff’s condition and his nature of work. 67.For the post-trial period the plaintiff should be able to work on a lighter job at about $6,000 per month as aforesaid. Accordingly, the plaintiff’s loss of future earnings would be :
Loss of future earning capacity 68.It is predictable that the plaintiff will lose his employment from time to time because of his disadvantage in the labour market as aforesaid. It is therefore necessary to evaluate the present value of that future risk. I accept the submissions of counsel for the plaintiff that there is a real likelihood that the plaintiff will suffer handicap in the labour market in the future. His reduced capacity will occasionally prevent him from obtaining casual work of a kind which he would have been able to get if he had not been injured during the accident. I further accept that he will most likely experience about 30 days of unemployment a year as a result of his reduced capacity. By adopting the same multiplier of three years, the award for loss of earning capacity will be : $550 (daily wage) x 30 x 3 = $49,500. Loss of mandatory provident fund 69.According to the award as aforesaid, the amount of damages under this heading would be :
Future medical expenses 70.Dr Lau opined that the plaintiff will need to pay attention to back care in future and will require medical consultations and treatments during periods of severe pain. The estimated costs of such care would be around $9,000 per year. 71.Counsel for the defendants submitted that since the plaintiff had only gone to bone-setters in China on a few occasions in the past years, he would not need any future medical care. However, in my view the plaintiff who had suffered from unemployment in the past and was living under social assistance would obviously save up as much as possible when he had no assurance that he would recover medical expenses at the end of the day. It is therefore understandable that the plaintiff conducted himself in a frugal manner whenever he had back pain. It does not mean that he will not require medical consultations and treatments which predictably will be more and more required by him as his condition will be getting worse. 72.In the end I find $9,000 per year as a reasonable amount and here I will take 7 years for the multiplier as claimed : the total amount will be $63,000. Special damages 73.The defendants agreed with the plaintiff’s claim of the following damages, the items of damages, namely :
74.The plaintiff also claimed $9,000 for tonic food which was disputed by the defendants. However, according to the background of this plaintiff, it is understandable to assume that he would believe the importance of tonic food and $9,000 is, in my opinion, a reasonable amount he would have spent on this item. 75.Accordingly the total amount of special damages would be $17,484. Summary on quantum 76.I would have awarded the following items by way of damages, and make judgment for the total amount, namely :
INTERESTS 77.For damages of PSLA, the plaintiff is entitled to be awarded an interest at a rate of 2% per annum from the date of the writ to the date of judgment. 78.For pre-trial loss of earnings and other special damages, the plaintiff is awarded with interest at half of the judgment rate from the date of the accident to the date of judgment. COSTS 79.There should be an order nisi of costs to the plaintiff, to be taxed if not agreed and the plaintiff’s own costs be taxed accordingly to Legal Aid Regulations.
Mr Hylas Chung, instructed by Messrs Laracy Gall, for the Plaintiff Mr John Wright, instructed by Messrs Tang & So, for the Defendants |
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