Yu Tim Sheung v. Secretary for Justice (for and on behalf of Director of Food and Environment Hygiene Department)

HCPI 395/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 395 OF 2006

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Before: Deputy High Court Judge Carlson in Court

Dates of Hearing: 31 March and 1-2 April 2008

Date of Judgment (Handed down): 7 May 2008

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J U D G M E N T

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Introduction

1.This is a claim for damages for personal injury sustained by the Plaintiff, Mr Yu Tim Cheung in the course of his employment with the Defendant.  The Plaintiff, now aged 57, was born on 10 February 1951.  He was injured on 21 May 2003 then aged 52.  At the time, he was employed by the Food and Environment Hygiene Department (“FEHD”) of the HKSAR Government to which he had been seconded in 2001 by the Electrical and Mechanical Services Department (“EMSD”).  The Plaintiff started his career in government service in 1970 with the EMSD and is a qualified vehicle mechanic and also holds a certificate as a gas welder.  His duties with the FEHD involve him being a team leader in charge of a number of men who would be required to demolish or break into premises for the purpose of inspection and, if appropriate, prosecution by his department.  He worked under the supervision of a Health Inspector.

2.On 21 May 2003, he and his team were required to attend the Tai Yuen Street Cooked Food Market at Kwai Chung in order to demolish a metal cage construction that had been added to stall C16 of the Market by the outgoing tenant in order to restore it to its original condition in preparation for the arrival of the new tenant.  The Plaintiff says, and I accept, that he would oversee and take part in 20 to 30 such demolitions each year.  It was in the course of demolishing the wire-mesh metal panels of the cage-like addition to the stall that he was injured when, he says, a large metal plate and a piece of wire-mesh fell onto his forehead causing an abrasion and other consequential neck injuries.  The Defendant does not accept his version of the accident by any means nor, the extent of his injuries and consequent disabilities.  Presently, I will need to consider both accounts in a little detail in order to arrive at a conclusion as to how the Plaintiff was injured and the extent of those injuries and their physical consequences.  Before doing so, I propose to describe the lay out of the premises that the Plaintiff and his team were expected to demolish and the method by which this was to be achieved.

The Work That the Plaintiff was Expected to Carry Out

3.It is helpful to look at some photographs of the premises that were due for partial demolition by the Plaintiff’s team.  Pages 68 and 69 of the bundle are photographs of the stall in question after the metal structures had been removed.  These photographs, with the Plaintiff in them, show the stall which has modest dimensions; I was told 8' x 8', bounded by two tiled walls each about 6 feet high.  Commonly tenants would then construct onto the walls, wire-mesh fencing about 4 feet in height and add a wire-mesh ceiling which would enclose the stall and keep out intruders when the Market was closed and the stalls were left unattended.  A good example of this wire-mesh fencing is shown in photograph number 6 of Exhibit P1.  The best illustration appears at page 92.6 of the bundle, this being a sketch drawn by Mr Wong Chung Yee, a witness for the Defendant, and a member of the Plaintiff’s team of workmen on that day.  What the outgoing tenant had done was to erect wire-mesh fencing onto the walls that bounded two sides of the stall.  On the other two sides, he had erected 6 foot high walls made of iron plates on top of which he had also erected 4 foot high wire-mesh fencing.  A gap, as shown, was left to serve as a doorway into the stall and a door positioned there which could be bolted shut at night.  Significantly, for the purposes of this case, the tenant had also erected a horizontal wire-mesh ceiling over the upright wire-mesh fences thereby totally enclosing the cubicle.  I was told by the Plaintiff that when he and his team attended, the cubicle was being used as basic living accommodation and that it had been furnished with a bed and a refrigerator.

4.The sketch at page 92.6 illustrates very well what the Plaintiff’s team was required to do.  The ceiling, some 10 feet off the ground, would have to be removed, as would the two metal plate walls and the four upright wire-mesh extension fences.

The Demolition Method

5.Although the word demolition has been used in the course of the evidence perhaps the better way of describing the work is one of dismantling the tenant’s additions in order to restore the cubicle to what it had been in readiness for occupation by the next tenant.  The approved method really entails loosening the structure by welding through the metal structures at their edges and then using a rope to pull down the individual elements of the wire-mesh cage.

6.As I will describe in a moment, the Plaintiff has alleged that someone had left on top of the wire-mesh ceiling a metal sheet and some wooden planks.  The Defendant’s case is that there were no items on top of the ceiling and that it was completely free of any other debris or litter.  Had there been, a workman would have had to get onto a ladder to remove anything placed on top of the ceiling prior to the structure being dismantled.

7.The way that this task would be performed was for the wire-mesh ceiling to be cut away allowing it to fall down into the cubicle itself.  This would be done by means of a welding torch burning through the wire-mesh.  Thereafter, the torch would be used to horizontally cut through the wire-mesh fencing and metal plates on the left and right of the cubicle leaving the upright bars in place.  The final stage was to tie a sturdy length of rope at the highest point of the wire-mesh fencing, by now loosened by the horizontal cuts lower down and pull on the rope.  This would cause the metal and wire cage structure to collapse after which the various parts could be removed.

The Plaintiff’s Case and the Evidence

8.The Statement of Claim makes a number of allegations both at common law and under statute.  It alleges, amongst other things, breach of the common duty of care owed to a lawful visitor under the Occupiers Liability Ordinance, breaches of the Factories and Industrial Undertakings Ordinance, the Occupational Safety and Health Ordinance and also at common law on the basis of a failure to provide the Plaintiff with a safe system of work and a failure to provide proper training and equipment.

9.In terms of evidence, the major complaint by the Plaintiff is the presence of a 8' x 4' piece of metal, wooden planks and wire-mesh on top of the wire-mesh ceiling of the cubicle, which could not be removed by the workman due to a lack of a working platform which would have given them access to the top of the ceiling.  As a result, the Plaintiff has said that the dismantling process had to be carried out with the articles left on top of the ceiling.  The Plaintiff having cut through the metal plate of one wall, and the other having already been dismantled, then directed that the rope which had been attached to the higher part of the wire-mesh fence should be pulled on for the purpose of bring down the remaining walls together with the ceiling and the objects which were on it.  His evidence is that following a few tugs the structure still remained in tact when suddenly and without warning it started to collapse.  At the time he had been standing about 10 feet away but on seeing it come down he hurried towards it with a view to holding it and preventing its collapse because he feared that people standing nearby might be injured including a mother and child.

10.The position immediately prior to the collapse of the cage is as it has been sketched at page 92.6 by Mr Wong Chung Yee. 

11.The Plaintiff’s evidence at the trial is that he had pushed against the metal plate wall to try and hold the structure up.  Having failed to prevent the collapse, his evidence is that he was hit by something that had been lying on top of the iron-mesh ceiling which had slid down from the top of the ceiling as everything gave way.  He has told me that he was struck by a metal plate 4' x 8' x ⅛" which knocked his safety helmet off.  He says that the metal plate somehow also came into contact with his forehead causing a small laceration.  This appears to have been underneath the hairline on the left side of his head behind the temple.  He was very closely cross-examined by Mr Lim, for the Defendant, as to the precise course of events, as a result of which a number of inconsistencies became apparent, to which I can now turn.

12.As to whether he had in fact been struck by, given its dimensions, a substantial sheet of metal, Mr Lim refers to the fact that there is no mention of where this metal sheet had come from in his written account of this to his employers on 26 May 2003, just five days after the accident, nor in either of his two witness statements.  It is significant that when Mr Lo was opening the Plaintiff’s case, I asked him if he could assist me as to where the metal sheet had fallen from and all he could say, on his instructions, was that it had come from near the roof of the market.  In the course of that exchange, I had referred to the photographs of the market and Mr Lo was not able to tell me with any sort of precision where the metal sheet had appeared from.  What is of real significance is the absence of any reference to where the metal sheet had come from in the Plaintiff’s two witness statements prepared with the assistance of his solicitors.  Mr Lim rightly refers to the fact that in taking his statement, his solicitors would have been anxious to obtain from him a clear, full and accurate account of how he came to be injured.  In his oral evidence, when asked why this did not appear in his witness statements his explanation was that he had forgotten about it.

13.It seems to me that this central part of his evidence, as to how he was injured, had it occurred in the way that he described in the witness box, would inevitably have found its way in his first written account a few days after the accident and certainly in his witness statements.  The place from where a large sheet of metal came from and struck him on the head is not something which he would easily forget to record in a written statement.  In my judgment, this part of his evidence has not been truthful, and it must in the overall scheme of things reflect badly on his credit as a witness.

14.There is also much force in Mr Lim’s submission that it is inherently unlikely that he had been hit by such a substantial and, given its dimensions, heavy metal plate and yet only sustained minor abrasions.  When cross-examined on this basis, that in his statement (para.12) he had said that the metal sheet had fallen from a height of 15 feet, he then elaborated on that account by saying that the metal sheet did not actually come into direct contact with his forehead but that it had struck his helmet causing it to come off his head and that it was a piece of wire-mesh following on that had caused the abrasions.  Significantly, in neither of his witness statements nor in his initial report had he said that his helmet had been knocked off.  In his supplemental witness statement, which is in response to the Defendant’s witnesses statements he has somewhat amended the description of what it was that hit him by describing it as a “wire-mesh/metal sheet”.

15.An important part of his case as to why he was injured is that on seeing the sudden and unexpected collapse of the structure, he rushed forward to prevent it falling down because a woman and child had encroached close to the stall.  None of this appears in any of the three previous written accounts that he has provided when, it seems to me, that this, had it happened in this way, would have formed an important part of his narrative of these events.

16.In respect of the medical aspects of the case, the medical notes only reveal the two abrasions.  This being so, Mr Lim has submitted that this is entirely consistent with the Defendant’s case that he was only struck by a relatively small piece of wire-mesh that had become detached from the fencing after the welding torch had cut through it.

17.As to the circumstances of the collapse of the structure, the Defendant has called a Mr Wong Chung Yee who has drawn the sketch at p age 92.6.  His evidence is that upon arrival at the site, it was he who climbed to the top of the 6 foot wall and using the welding torch, he cut through the wire-mesh ceiling and removed it.  Whilst he cannot now specifically remember whether there was anything on top of the wire-mesh ceiling, his evidence is that had there been, this would have been removed by using a wooden ladder propped up against the upright wire-mesh walls to get access to what was on top of the ceiling.  As to whether there had been a metal sheet of the substantial dimensions spoken of by the Plaintiff, Mr Lim submits that it is highly likely that Mr Wong would have remembered that and, given the usual practice, this metal sheet would have been removed before the ceiling was cut away.

18.Mr Wong then says that he climbed down after he had removed the ceiling with the welding torch and using the same equipment he went on to demolish the wire-mesh wall and the iron plate wall below it on the left side of the stall, as he has shown in his sketch at page 92.6.  He then went to assist in demolishing the right wall.  In respect of this, the Plaintiff took hold of the welding torch and, as Mr Wong has depicted at page 92.6, he made a cut horizontally from left to right.  Having loosened it, Mr Wong’s evidence is that the Plaintiff then pushed the iron plate wall backwards and forwards to further loosen it.  Mr Wong says that whilst this was being done by the Plaintiff he then took hold of the welding torch and cut a 4" x 4" section in the wire-mesh fence above the iron plate wall.  As he was doing this, the entire right hand wall gave way.  He did not see how the Plaintiff was injured but he is able to say that the Plaintiff was only slightly injured on the forehead and that, contrary to the Plaintiff’s evidence, he remained conscious throughout and again, contrary to the Plaintiff’s evidence, the Plaintiff wore no safety helmet.  In this respect, Mr Wong says that although all of them had been provided with helmets, it was not their practice to wear them until after this incident when the Plaintiff directed all of them to wear a helmet.

19.As to the normal method of doing this kind of work, Mr Wong says that the rope would be tied to the highest central point of the iron plate wall first.  Then the connections that attached the iron plate wall to the permanent masonry walls would be cut through with a welding torch.  Once that was done, the iron plate wall would be removed by one good tug of the rope.  On this occasion he says that the Plaintiff deviated from this procedure inasmuch he had made a horizontal cut left to right in the middle of the iron plate wall and because the plate wall was still attached to the masonry wall, it remained standing and it was for this reason that the Plaintiff had tried to loosen it with his hands by pushing and pulling at it which resulted in the wall and the wire-mesh wall above it falling down.  The use of the rope was therefore by-passed on this occasion.  The advantage of the rope, given its length, is that everybody could stand away from the iron plate wall and the wire-mesh wall as it collapsed.  And so, he says, that the Plaintiff was injured because he had not on this occasion followed the usual safe practice which he described.

20.Mr Leung Kin Ming, also a member of the Plaintiff’s team, was present.  He was able to see how the Plaintiff was injured.  He was standing 15 or 16 feet away from him at the time.  He says that he had driven the team to the site.  His evidence is that; “when the work was half finished he saw a piece of “iron net” 6" x 6" fall from the top of the installations that had been left at the stall and had to be demolished (at a height slightly taller than the top of a man’s head) and happened to drop on the forehead of [the Plaintiff].”  This he says caused two very small wounds with slight bleeding on the forehead.  He also says that the Plaintiff was not wearing a helmet at the time.

21.Whilst the evidence of both Mr Wong and Mr Leung clearly contradicts that of the Plaintiff on the all important aspects of the circumstances of his injury both of them have given brief statements to their employer at pages 214.2 and 214.3 which, contrary to their witness statements and their oral evidence in the trial, say that an iron plate had fallen onto the Plaintiff and injured him.  Mr Wong’s explanation for having done so is that a Mr Yeung Kwok Hung, a colleague and technician, informed him that he had to provide a statement about how the Plaintiff had been injured.  He did not know how to write a statement and so he merely put down what Yeung had told him.  The reason why he said that a metal sheet had fallen onto the Plaintiff is because he had not actually seen what had injured the Plaintiff and he was prepared to put down what Yeung had told him.  At about the same time, a Mr Lee, another colleague, told him that the Plaintiff had telephoned from hospital to say that he had been wearing a safety helmet at the time.  As he had seen that the Plaintiff had not been wearing one he declined Mr Lee’s suggestion to write down that the Plaintiff had been wearing a helmet.  As for Mr Leung Kim Ming, he also wrote his statement to the department to say that a metal sheet or plate had fallen onto the Plaintiff’s head, this also following Mr Yeung’s suggestion that this should be said.  His explanation for saying what he knew was incorrect is because he was not, at the time, aware of the importance of the statement.  Subsequently, he says that once the matter had to go to court and he had to give a witness statement he was not prepared to say what he knew to be untrue.

22.In this case, the medical evidence is also a useful aid to testing the Plaintiff’s credibility.  The Plaintiff has said that he lost consciousness having been hit by the metal sheet.  Nevertheless, when first seen at the hospital he told the triage station that he had not lost consciousness.  It was only later, when he saw the doctor that he told him that he had become unconscious for some minutes.  The only injury was the abrasion to the left forehead.  X-rays of his skull and neck showed no fracture.  He was given a neck collar as a precaution.  He had complained of neck pain and numbness and weakness of his right upper arm.  Further cervical X-rays and an MRI showed pre-existing cervical spondylosis and spinal narrowing at C5-6 level.  He was given physiotherapy.

23.In due course, he was jointly examined by the parties’ medical experts, Dr Lam for the Plaintiff and Dr Yeung for the Defendant.  Their diagnosis was a laceration of the forehead and contusion of the cervical spine.  He also complained of weakness and numbness of both the right upper and lower limbs, urinary and fecal incontinence and an inability to maintain an erection.  The Plaintiff said that he needed a walking stick and was provided with crutches by the hospital on his discharge, this notwithstanding a Dr Joe Yu at the hospital having recorded that he was able to walk independently before he had been discharged.  When examined by the two experts, he wore a diaper on which there was no stain of urine or faeces nor any smell which might be associated with the double incontinence that he was complaining of.  The scar on his forehead had by now, over three years after the injury, disappeared.  There was no wasting of the upper right limb.  The right calf measured less than the left one by 1.7cm.  No deformity was observed at the neck and no spasm detected of the paraspinal muscles, although he complained of pain at the end range of all movements.  Muscle power of both upper and lower right limbs was less than on the left.  The cervical spondylosis was pre-existing and not caused by the accident.  Dr Yeung for the Defendant considered that the Plaintiff had been exaggerating his symptoms as to his physical disabilities.

24.In this regard, the evidence of both Mr Leung and Mr Wong is very pertinent.  They have said that the Plaintiff would direct them to drive to a source of mountain water where they would fill up large bottles with a capacity of 18.9 litres.  This water was said to have therapeutic qualities.  Both have said that the Plaintiff would then carry these 18.9 litre bottles up flights of stairs to his home without difficulty.  This the Plaintiff denies and he says that Mr Leung in particular is deliberately doing him down because they have had disagreements in the past.  If the evidence of the Plaintiff’s ability to carry heavy water bottles in this way is true then this serves to corroborate Dr Yeung’s opinion about symptom exaggeration.  Added to this, Mr Leung has said that he had seen the Plaintiff standing at a urinal lowering his trousers and that he was not wearing a diaper on that occasion and also, that he had filmed the Plaintiff who was speaking on his mobile telephone whilst walking about perfectly happily without a walking stick.  This had upset the Plaintiff so much that he called the police who deleted the film clip.  Mr Leung’s evidence, supported by Mr Wong is that the Plaintiff is perfectly well and that he is playing-up his disability.

25.Also related to symptom exaggeration is that at the trial the Plaintiff abandoned his claims for the cost of diapers and for Viagra pills which he had claimed for to help him with his erection problems.  He has explained that he has done so because the medical evidence did not support these claims.  Mr Lim counters by saying that despite this, these are claims that he was prepared to make which he has now withdrawn and which therefore must have some impact on his credibility.

Conclusions

26.It seems to me that one must approach the evidence from a broad perspective, taking in all of it on the issue of liability.  Mr Lim is right that ultimately this turns into a test of the Plaintiff’s credibility and I am afraid to say that in doing so, I have come to the certain conclusion that on this matter the Plaintiff has been prepared to lie and lie hard to get damages for what fortunately was a very minor injury from which he fully recovered very soon afterwards.  In coming to this view, I have not lost sight of the agreed evidence that the Plaintiff is a very competent and valued employee of the FEHD.  There is an excellent report on him by a Miss Leung Ka Wai dated 15 March 2004 which speaks very well of him.

27.It seems quite inconceivable that a large metal sheet measuring 8' x 4' x ⅛" fell on his helmet and at such speed from a height of some 15 feet knocking off his helmet and only causing a small abrasion.  If such a momentous thing had happened, I have no doubt that the metal sheet would have been preserved as part of the investigation.  The fact is that there was no metal sheet and it is very significant that the policeman who arrived at the scene was told by the Plaintiff that he had been hit by an “iron net” [see page 203.1].  Had the Plaintiff been struck by such a metal sheet his injuries would have been far more severe. 

28.This is supported by Mr Leung’s evidence and by Mr Wong as well.  It seems to me that what has happened is that once the Plaintiff, who had been prepared to be frank about things at the scene saying that he had not been rendered unconscious and that he had been hit by an iron net (meaning a piece of wire-mesh), later decided that he would exaggerate the matter with a view to getting as much compensation as possible and in doing so he has, I am afraid to say, been dishonest.

29.I reject his account of how he was injured.  What actually happened has been described by Mr Leung and in this regard he has been almost completely corroborated by Mr Wong although he, very frankly, has said that he did not see how the Plaintiff was injured.  I am in no doubt that this injury would not have happened had the Plaintiff adopted the usual method of demolition by cutting away the metal wall from its supports at its edges and pulling at the rope which would have brought down both the iron-mesh fencing and the metal wall through which a horizontal cut had already been made.  By standing at the metal wall and pushing it back and forth to further loosen it, the Plaintiff also loosened a piece of wire-mesh above measuring 6" x 6" and it is this which fell onto his forehead fortunately only causing a minor injury.

30.I find as a fact that there was no debris such as a large metal sheet and planks of wood lying on top of the wire-mesh ceiling.  I accept Mr Wong’s evidence in this respect.  I also accept the evidence of Mr Wong and Mr Leung that the Plaintiff was not wearing a helmet at the time as indeed, none of the others were.  I am also satisfied that given the minor nature of his injury, the Plaintiff never lost consciousness which is what he told the police and the nurses at the triage station on admission to hospital.

31.I also find that the Plaintiff has not been frank as to the extent of his injuries and in this respect I accept the evidence of Mr Leung about the Plaintiff’s ability to carry 18.9 litre bottles of spring water up flights of stairs in the circumstances that Mr Leung described and that the Plaintiff was able to walk freely without a walking stick and that he wore no diapers.  This latter fact is confirmed by the abandonment by the Plaintiff at the trial of this part of his claim.  In accepting Mr Wong’s and Mr Leung’s evidence, I have had regard to the initial statements that they gave reciting the fact that a piece of metal had fallen onto the Plaintiff.  I have listened to their explanations for this and I accept those explanations.  The fact is that after he entered hospital, the Plaintiff appears to have tried to orchestrate a false case about the way that he was injured by the untruthful introduction of a piece of metal having fallen on him when that was never the case.

32.Despite the fact that I completely reject the Plaintiff’s account of how he was injured, which would be sufficient to dismiss the action, it seems to me that it would right to go on and see whether the system of work and the training and equipment was sufficient to adequately protect the Plaintiff and indeed his colleagues from injury.  Having regard to the evidence of Mr Wong and Mr Leung as to how the work should have been done, as I have already described, there should have been no risk of injury.  The loosened structure would be pulled down by the rope and would collapse well short of where the workman would be standing, the rope being at least 10 feet long.  I find that the system of work was perfectly safe and effective, the training completely sufficient for this purpose and the equipment, being a ladder to get to the ceiling, a welding torch, the rope, a helmet (not worn on this occasion) and other miscellaneous equipment) quite enough to carry out the task efficiently and safely.  The injury was caused by the Plaintiff’s failure, on this occasion, to follow the usual procedure as I have already described it.

33.For all these reasons therefore the case must stand dismissed and there must been judgment to the Defendant with costs.  If the Plaintiff has a legal aid certificate, there will be legal aid taxation of his costs.  The order for costs will, in the usual way, be an order nisi.

34.For the safe of completeness, I propose to briefly indicate the damages that I would have awarded the Plaintiff which are broadly reflective of Mr Lim’s submission.  This was a very minor injury, being an abrasion and nothing else.  The award for pain and suffering would have been $5,000.  The FEHD has been a very accommodating and generous employer.  The sick leave granted was for 7 months and a further 6 months on light duties which was far more than was necessary.  As a result, the Plaintiff lost a monthly allowance of $2,311.  For my part, I need to be loyal to my findings and where I have found that he has feigned his disabilities I would have allowed, at most, a month of sick leave giving a loss of earnings of $2,311 being the loss of allowance.  Travel expenses for him to get to hospital for this minor injury would at best be $500 and tonic food a further $500 for this kind of injury.  This would be the extent of the damages that I would have awarded had I find the Defendant liable.

Anthony Lo, instructed by Messrs Wat & Co., for the Plaintiff

Patrick Lim, instructed by Department of Justice, for the Defendant