Yeung Kin Chung Joseph v. H.K. Scafform Suppliers Ltd and Another
Read the full judgment text of DCPI 1332/2005 on BabelCite. This District Court judgment was delivered on 3 July 2007.
1. The Plaintiff claims against the 2 Defendants for damages due to injuries sustained at an accident while he was working as a metal scaffolder at the warehouse of the 1 st and 2 nd Defendants in Tai Tong Road, Yuen Long, New Territories (“the warehouse”).
Cites 4 cases
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DCPI 1332/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EQUAL OPPORTUNITIES ACTION NO. 1332 OF 2005 ------------------ BETWEEN
------------------ Coram : Her Honour Judge H.C. Wong in Court Dates of Hearing : 20-21 March 2007, 26 April 2007 Date of Handing Down Judgment : 3 July 2007 ______________________ JUDGMENT ______________________ 1.The Plaintiff claims against the 2 Defendants for damages due to injuries sustained at an accident while he was working as a metal scaffolder at the warehouse of the 1st and 2nd Defendants in Tai Tong Road, Yuen Long, New Territories (“the warehouse”). 2.The 1st and 2nd Defendants are limited companies incorporated in Hong Kong with an identical registered address at Room 1909, 19th Floor, Kowloon Plaza, 485 Castle Peak Road, Kowloon. The Defendants admitted the Plaintiff was employed by the 2nd Defendant to work as a metal scaffolder at the warehouse, but both Defendants denied liability. 3.It is not disputed that the 1st Defendant signed a tenancy agreement with the registered owner of the land where the warehouse was situated in Tai Tong Road, Yuen Long, New Territories. The 1st Defendant claimed that the operations and management of the warehouse had been handed over to the 2nd Defendant H.K. Scafframe System Limited. Liability 4.It is the evidence of the Plaintiff, Mr. Yeung Kin Chung, that he had been employed to work for the Defendants for 3 years before the accident took place on 15th May 2003. He was employed as an scaffold worker in charge of loading metal frames (scaffolds) onto delivery lorries. It was his duty to secure the metal scaffolds with a metal cable and hook it onto the crane to enable the crane operator to load the scaffolds into the lorry. He was also in charge of delivery and the unloading of the metal scaffolds and other heavy goods at the warehouse. 5.On the day of the accident, 15th May 2003, at around 1:30 p.m., Mr. Yeung was working at the warehouse. As usual, he climbed on top of the piles of metal scaffolds in order to secure the metal scaffolds with the cable and hook the bound scaffolds on to the crane for delivery. Mr. Yeung claimed that he was standing about 8 metres from the ground on top of the pile of metal scaffolds. After he finished securing the cable onto metal scaffolds and the operator and driver Mr. Ko was lifting the metal scaffolds and loading them into the delivery lorry, Mr. Yeung climbed down from the pile when the metal scaffolds began to slide downwards. He let go of the sliding metal scaffold he was holding and fell onto the ground injuring his right leg. He immediately informed the driver Mr. Ko of his injuries, the driver drove him back to the warehouse office where Mr. Yeung informed the Defendant’s warehouse supervisor “Wing Kor” (榮哥) of the accident. Mr. Yeung attended the Tuen Mun clinic to seek medical assistance the same afternoon. 6.He was diagnosed by the Tuen Mun Hospital doctor to have suffered a fracture to the base of the 5th metatarsal of his right foot. He was treated conservatively with a cast and was discharged on 16th May 2003. Mr. Yeung thereafter attended regular follow-up visits to the Orthopaedic Out-patient Clinic of the Tuen Mun Hospital. His last follow-up was 17th November 2003, the X-ray taken showed Mr. Yeung’s fracture had healed. Mr. Yeung’s treatments included work assessment and work conditioning programme conducted by the Occupational Therapist at the Tuen Mun Hospital. 7.According to Mr. Yeung, he had to walk with the aid of two crutches after the cast was removed in the beginning of June 2003 until the month of August 2003. Thereafter he underwent physiotherapy treatments and occupational therapy treatments for 1½ months. He was put on sick leave until 19th October and for one day on 17th November 2003. 8.Mr. Yeung claimed he was able to take care of himself after the accident but he experienced pain on his right ankle and that the most he could walk was for 1 hour. Furthermore, he could not carry heavy weight for a distance longer than 20 feet and he could no longer jump or carry heavy weight without experiencing pain on his right foot. He claimed he experienced pain whenever the weather changes. 9.After the accident, he returned to work for the Defendant. He found his work efficiency had reduced due to the injuries and he was put on to lighter duties in the warehouse which involved maintenance of tools, repair and painting work. Because of his reduced work efficiency, he was dismissed on 6th January 2004. During the sick leave period, he was paid 4/5 of his monthly salary and received a total of $48,336. If not for the accident, he would have been paid the sum of $60,420 for the 159 days of the sick leave period. His monthly salary before the accident was $11,400. 10.Mr. Yeung claimed that apart from his job working as a metal scaffolder with the Defendant, he had been working at night as a cleaning worker since 1st March 2003 until 2nd October 2005 at a monthly wage of $6,000. He claimed that his cleaning job was with Swan Hygiene Services Limited and he was in charge of cleaning of the Harbour City Shopping Mall and the car park. Since the accident, he was put on sick leave and was not able to work as a cleaning worker, however, in order to retain his cleaning job, he found a replacement worker to do the work on his behalf and paid him the wages Swan Hygiene paid him. 11.Mr. Yeung claimed that after he was dismissed by the Defendants in January 2004, he had been working at various jobs since 16th June 2004. Between 16th June and 15th September 2004 he worked as a frame worker at a daily wage of $380 working 6 days a week at construction sites. From the middle of September 2004 to March 2005 he worked at construction sites earning $400 a day but he was only able to find 10 days work a month. Between April and June 2005 he returned to work for Sing Fai Construction Company at a daily wage of $410 for 6 days a week. Between July and November 2005 he worked at various construction sites earning $400 a day, working on an average of 10 days a month. Between 27th November to 14th December 2005 he worked with China Heavy Equipment and Automation (H.K.) Limited as a scaffold worker earning a total of $7,560. Between 1st February and 31st March 2006, he found work at Tung Yat Construction Co. Limited as a scaffold worker earning at a total $24,750, his duty was to check and confirm the safety of the site scaffolding. Between April and June 2006 he found work as a casual security officer earning $5,000 a month. And since July 2006 up to the day of trial he worked at Sing Fai Construction Company at $410 a day, 6 days a week. The Defence Case 12.The Defendants adduced evidence from Mr. Ko Kuen Wai, the owner and driver of lorry equipped with a hydraulic crane of 8 tons lifting capacity. Mr. Ko admitted that the two Defendants are his clients. On 15th May 2003, Mr. Ko received an order from the 1st Defendant to deliver a variety of metal scaffolds from the warehouse to the construction site at For Tan in Shatin. He started collecting the metal scaffolds at about 1:15 p.m. on that day. The Plaintiff, Mr. Yeung, was instructed by ‘Wing Kor’(榮哥) to help Mr. Ko to load the metal scaffolds onto his lorry. Mr. Ko, however, claimed that the warehouse at the time of the accident was not as full of metal frames as it is today and that the metal scaffold frames he was loading onto his lorry were not as high as 8 meters, they were stacked up to 1.5 meters in height only. He claimed that he was operating the hydraulic crane at the time and did not witness the accident. He recalled, shortly prior to the accident, he had instructed Mr. Yeung to fasten the four guard-shore scaffold frames into one bundle with cable to enable his hydraulic crane to lift the frames into the lorry. He claimed that Mr. Yeung was able to connect and tie up the first bundle of 4 guard-shore frames without climbing onto the pile of scaffolds because they were only piled up as high as Mr. Yeung’s shoulders and the frames could be fastened with the cable with Mr. Yeung standing on the ground by the side of the frames, therefore there was no need for Mr. Yeung to climb up the pile of frames. It was while Mr. Yeung was lifting the first bundle of frames that Mr. Yeung was supposed to be tying up the 2nd bundle of the guard-shore frames and therefore Mr. Ko did not pay any attention to Mr. Yeung’s action while he was concentrating on lifting the 1st bundle of frames. He claimed that he did not hear or notice any unusual noise at the time, that it was only after he had positioned the 1st bundle of frames onto the trailer of his lorry that he noticed Mr. Yeung sitting on a frame on the ground. Mr. Yeung told him he had injured his foot and Mr. Ko told him to take a rest while Mr. Ko carried on working and fastened the next bundle of scaffold frames together with the cable before loading them onto his trailer. He then informed Mr. Ng (榮哥) of the accident, Mr. Ng then instructed another worker to help him to finish loading the frames. 13.The 2nd Defence witness was Mr. Kam Kwok Keung. He and his wife are the directors and shareholders of the 1st and 2nd Defendants. He confirmed that Mr. Yeung joined his employ on 3rd July 2001 and was put in charge of loading and unloading of metal scaffolds onto delivery lorries. Mr. Kam claimed that on the day of the accident Mr. Yeung was employed by the 2nd Defendant, he also admitted that Mr. Yeung was employed by the 1st Defendant until 31st March 2003. This was supported by the employer’s return to the Inland Revenue Department filed by the Defendant (page 189 of the bundle). Mr. Kam further admitted that on the day of the accident, Mr. Yeung was doing work for the 1st Defendant. Liability 14.The evidence of the employer’s return to the Inland Revenue Department clearly showed that Mr. Yeung was employed by the 1st Defendant up to 31st March 2003. According to Mr. Yeung’s evidence he was never informed of a change of employer; at one time, he was asked to sign a self employment agreement, he had refused and rejected it. It was not disputed that on the day of accident Mr. Yeung was working on the 1st Defendant’s project supplying frames to a construction site. From the evidence of Mr. Kam, the shareholder and director of both the 1st and 2nd Defendants, even though he had tried to differentiate the business of the 1st Defendant and the 2nd Defendant, so far as the employees are concerned, the employment record of Mr. Yeung specified he was working for the 1st Defendant up to 31st March 2003. Mr. Kam admitted it was the 2nd Defendant who was on the day of accident the employer the Plaintiff. It is therefore clear the 2nd Defendant cannot escape liability as the employer. On the other hand, the 1st Defendant was the occupier and the tenant of the warehouse and owner of the scaffold frames. Mr. Yeung, though employed by the 2nd Defendant, was put to work for the 1st Defendant, in which case he became an employee on loan to the 1st Defendant on the day of the accident, therefore the 1st Defendant is liable as in the example given in Clerk & Lindsell on Torts, 19th Edition, para. 6-23 at page 332:
The author cited the case of Mersey Docks and Harbour Board v Coggins and Griffith [1947] AC1 where the House of Lords held:
15.As the 2nd Defendant admitted to be the employer of Mr. Yeung, it is liable as such. As to the 1st Defendant, it being an occupier therefore must be liable under occupier’s liability and further liable under vicarious liability. 16.There was a dispute as to the height of the frames when Mr. Yeung fell and injured his foot while working on connecting and fastening the frames with cable and hooking it onto the crane. Mr. Yeung claimed he had to climb onto the frames to perform the work while Mr. Ko claimed the frames were not as high as 8 metres. 17.It is quite clear that Mr. Yeung did sustain injury to his right foot when he was performing the work at the warehouse. Mr. Yeung produced photographs taken over 1 year after the accident of the warehouse which showed the metal frames were piled up to a height of 8 metres or above. The Defendants, on the other hand, produced photographs showing frames piled up to 1.5 metres only and the Defendants claimed that at the time the warehouse was relatively new and had not collected as many frames piled up to 8 metres which obviously did happen in later months. The Defence photographs were plainly taken for these proceedings, they showed Mr. Ko smiling into the camera sitting on a frame. 18.I find Mr. Yeung a reliable witness. I also accept he was a conscientious worker. I accept his evidence that he had been working on top of the pile of frames and he did injure his right foot after tying up the frames with the cable and hooking it onto the crane for loading. Mr. Ko admitted he did not witness the accident because he was lifting the frames into his trailer. He admitted, however, to have seen the condition of Mr. Yeung after the accident. There is no doubt in my mind the accident did happen and it was not contributed in any way by Mr. Yeung. I am satisfied Mr. Yeung did have to climb onto the pile of frames to secure the cable onto the crane. Further, even if the frames may have been only 1.5 metres high, he would have to lean over in order to connect the 4 metal frames with the cable to tie them up and hook them onto the crane, this meant he would have to lean out to tie up the frames due to the width of the 4 metal frames bundled together; in order to do so, I am satisfied he would have to climb up the stack of frames. It was when he was descending the pile of frames that he injured his right foot. I further find the Defendants had failed to provide a safe system of work to their employees at the warehouse. The Defendants have also failed to supply safety equipments such as safety belts and ladders etc. to ensure the employees’ safety. Quantum Medical expert opinions 19.The Plaintiff was examined by Dr. Au Ka Kau and Dr. Wong See Hoi on 20th August 2005 and 26th September 2006 respectively. Both experts agreed that the Plaintiff’s fracture at the base of the 5th metatarsal had united solidly. The differences in the two experts’ evidence are as follows:-
Both experts agreed that the Plaintiff suffered from 1% permanent impairment. Dr. Au’s assessment was based on the muscle wasting of the right calf while Dr. Wong’s assessment was based on the residual right foot soreness and weakness after the accident. Dr. Au recommended that the tenderness over the base of the 5th metatarsal on the right foot may improve with 20 sessions of physiotherapy; Dr. Wong did not recommend any further treatments. Pain, suffering and loss of amenities (PSLA) 20.Mr. Yeung suffered from a fractured base of 5th metatarsal right foot. He was admitted into Tuen Mun Hospital on 15th May 2003 and treated with a cast and was discharged on 16th May 2003. The cast was removed in early June but he had to walk with the assistance of two crutches up to the month of August. He received 7 occupational therapy treatments between 19th August to 30th September 2003 which provided him with work assessment and work conditioning programme. The record also showed Mr. Yeung had attended bonesetter treatments for about 10 times. 21.Mr. Yeung resumed duty on 20th October 2003 after his sick leave terminated on 6th October 2003. He was dismissed by the Defendant on 6th January 2004 because of his reduce work efficiency. Mr. Yeung complained that though he was basically able to take care himself including washing, bathing and ordinary daily activities, his right ankle still suffered from pain when he walked and the right ankle was not as flexible as before. Since the accident, he would not dare run and he could not carry heavy weight for a distance of over 20 feet or walk for more than 1 hour. Whenever he jumped and lifted heavy weight, his right foot would be painful; he further experienced pain during changes in the weather. 22.Mr. Wong, Counsel for the Defendants, referred me to the case of Lee Sze Wai v. Law Chi Kin DCPI 44 of 2001 where the plaintiff suffered a fractured 2nd metatarsal on the left foot. There was no external wound and no hospitalization and the plaintiff was given 5 weeks sick leave before he returned to work. The plaintiff there suffered from mal residual stiffness of his left ankle. He was awarded $150,000 under PSLA. Mr. Wong submitted that authority to be the closest to the present case. Mr. Wong recommended an award under PSLA of $80,000 only because he considered the $150,000 award in the Lee Sze Wai case to be high compared to other cases where the plaintiffs had suffered more serious injuries. Mr. Lam, Counsel for the Plaintiff, referred me to the case of Chow Tai Loi v. Leung Kam Hung HCPI 320 of 2002, where the plaintiff suffered a fracture of the 2nd metatarsal and a chip fracture of the base of the 1st metatarsal on the left foot with minor injury to his chest. The plaintiff was treated with a soft plaster cast for 3 weeks; subsequently, the chest injury which was minor healed quickly and the foot injury also healed well; but the plaintiff complained of residual pain in the left foot. There was a 2% impairment of the whole person found. The PSLA awarded by Master Jeffries was $225,000. 23.Mr. Lam further referred to the case of To Ying Wa v. Cargo-land (Warehouse) Development Limited HCPI 441 of 2000, an assessment of damages by Master de Souza on 22nd January 2001. The plaintiff there sustained fractures to his 4th and 5th metatasals in the right foot and had a plaster cast installed. The plaintiff was granted 77 days of sick leave and was assessed to suffer from 1% permanent impairment of the person. Master de Souza awarded $200,000 under PSLA. 24.Mr. Leung submitted that when compared to the aforesaid cases, the injuries and disabilities of the Plaintiff are similar to the plaintiff in the To Ying Wa case. He submitted $180,000 under PSLA to be appropriate. 25.After considering the authorities cited to me by both the Plaintiff’s and the Defendants’ counsel, I further take into account the injuries and the pain and loss of amenities suffered by Mr. Yeung and the159 days of sick leave granted to him. The defence accepted Mr. Yeung had sustained a 1% impairment of the whole person and Dr. Au had assessed Mr. Yeung to suffer from a 2% loss of earning capacity. I find Mr. Yeung is entitled to an award under PSLA in the sum of $180,000. Loss of earnings Past loss of earnings 26.The Defence challenged Mr. Yeung’s earnings at his night time cleaning job. Mr. Yeung claimed that since 1st March 2003 (about 2½ months before the day of the accident) he had commenced working as a night time cleaning worker for Swan Hygiene Services Limited at Harbour City Shopping Mall and the car park at a monthly pay of $6,000. He claimed that since the accident he had been paying a substitute worker to work in his place at the Harbour City Shopping Mall every night during the sick leave period. He therefore claimed a loss of $6,000 p.m. for a period of 159 days which is equivalent to $31,800. 27.The defence challenged his hiring of a substitute worker during the 159 days of sick leave. Mr. Yeung in cross-examination admitted that his hiring of replacement worker during the sick leave period was permitted by his employer Swan Hygiene Services Limited and he had informed the foreman 「章哥」who had consented to the arrangement. The Defence produced correspondences with Swan Hygiene Services Limited (page 218 of the bundle) that Swan Hygiene did not require cleaning workers to hire substitute workers. It is highly possible that officially the cleaning company would not require its cleaning worker to find a substitute but the foreman in charge or sub-contractor in charge of the cleaning workers may wish to give the cleaning worker a chance to retain his job pending his recovery from injuries by getting a substitute worker to cover for him during the sick leave period so long as there was no complaint from the employer and the usual operation of the cleaning services was uninterrupted. I am satisfied that Mr. Yeung is an extremely diligent worker, he wanted to retain his night time job in spite of his injuries. I am satisfied he did obtain the permission of the foreman 「章哥」to allow him to find someone to cover the work for him on a daily basis until he fully recovered from his injuries. Under the circumstances, Mr. Yeung did retain the cleaning job until 2nd October 2005. I accept that during the sick leave period, he had paid substitute workers to work on his behalf and I accept he did suffer a loss of income in his night time job during the 159 days of sick leave in the sum of $31,800. Pre-trial loss of earnings of full time employment 28.The Plaintiff claims a loss of a total $280,579, the Plaintiff’s calculation is as follows:
29.The defence does not dispute the Plaintiff’s earnings was $11,400 a month while he was employed by the Defendants. The defence however disputed the loss of earnings after his dismissal on 6th January 2004. It was Mr. Wong’s submission that although the Plaintiff was not able to secure continuous employment after he was dismissed by the 2nd Defendant, the Defendants should not be held responsible for the alleged loss of earnings. He submitted it is likely that the Plaintiff’s loss of the employment was due to the lack of the jobs in construction sites and the labour market in general. The Defence was willing to concede to 3 months of loss of earnings which the Defence claimed had been awarded by consent at $48,000 at the Labour Tribunal. 30.What had happened in the Labour Tribunal and the settlement in the Labour Tribunal does not affect the present claim. The settlement by consent at the Labour Tribunal should not affect the present proceedings for common law damages. 31.Since the Defence did not deny Mr. Yeung was dismissed by the 2nd Defendant on 6th January 2004 and that he had only been able to obtain employment intermittently, it is clear to me that but for the accident, Mr. Yeung would have remained in the employ of the Defendants up to the present. The Defence admitted that Mr. Yeung was employed to work in the Defendants’ warehouse because he had the necessary qualifications and licences to work at a warehouse of this kind. Mr. Yeung had since his dismissal from the Defendant’s employment continued to look for work. Furthermore, he made use of the opportunity to take up further studies and had since obtained other licences to prepare for better employment opportunities. This shows Mr. Yeung is a hard working and industrious person. I accept his evidence on the intermittent employments between 2nd January 2004 up to April 2007. I further accept his claim for loss of past earnings due to the disability he suffered from the injuries sustained while working for the Defendants. The loss of earnings suffered by him but for the accident was $11,400 x 39 months x 1.05 = $466,830. As he earned $260,936 in wages during the period, his actual loss of earnings comes to $205,894. 32.During the 159 days of sick leave Mr. Yeung was only paid 4/5 of his monthly salary; therefore, he suffered a deficit of $12,688. Consequently his loss of past earnings for the daytime job was $218,582. Adding the aforesaid to the loss of night time earnings of $31,800, the total is $250,382. Loss of earning capacity 33.The Plaintiff is not claiming any loss of future earnings, he is asking instead for compensation for loss of earning capacity in the sum of $100,000. Mr. Wong submitted that the loss of earning capacity is designed to cover the risk at some future dates during the Plaintiff’s working life if he should lose the employment he has at the time of trial and he would then suffer financial loss because of the disadvantage in the labour market due to his injuries. This is the basis and rationale of the loss of the earning capacity claim in the case of Chan Wai Tong v. Lee Ping Sum [1985] HKLR 176. 34.I agree with Mr. Wong’s submission that damages for loss of earning capacity should be awarded if the Plaintiff is facing a substantial or real risk that he may lose his present employment before the end of the estimated length of his working life because of the disadvantage in finding comparable employment (Moeliker v Reyrolle & Co. [1977] 1WLR 132) After considering Mr. Yeung’s age, length of his remaining working life, the prejudice in the labour market by reason of his injuries and the prospects of obtaining alternative employment and the potential earnings of the Plaintiff had the accident not occurred, I have come to the conclusion that Mr. Yeung does suffer a loss of earning capacity because of his reduced working efficiency. Mr. Yeung is now 55 years old, he is separated from his wife and living with 3 teenage children who are still in school. Looking at his post-accident employments, it is highly likely that Mr. Yeung would work as long as he can physically afford to do so and bring home income from his labour. Unfortunately, due to the accident, his work efficiency has been reduced which has also placed him in an unfortunate and unfavourable position so far as employment prospects are concerned. I would therefore award the sum of $100,000 for his loss of earning capacity. Special damages 35.The Plaintiff’s claim under this head of $4,040 has been accepted by the Defendant, I therefore allow the claim $4,040. Future medical expenses 36.It is unlikely that Mr. Yeung would take up any further physiotherapy treatments in spite of the advice of Dr. Au, if he has not done so before, I would therefore disallow this item. Summary
Interest 37.2% per annum on PSLA from the date of accident to the date of judgment. Special damages of $4,040 and the pre-trial loss of earnings of $250,382 at half judgment rate from the date of writ to the date of judgment and thereafter at judgment rate. Costs 38.Cost nisi to the Plaintiff with certificate for Counsel, the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. The order will be made absolute should there be no application on costs within 14 days of this judgment.
Parties : Mr. Simon H.W. Lam instructed by Messrs. Andrew Chan & Co. assigned by D.L.A. for the Plaintiff. Mr. Eddie Wong instructed by Messrs. K.Y. Lo & Co. for the 1st and 2nd Defendants. Application for leave to appeal out of time by the defendants granted by Court of Appeal. Please refer to DCPI1332/2005 dated 16 September 2009 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCPI 1332/2005