Lai King Yiu v. Acciona Infraestructureas, S.A. and Others
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HCPI 444/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 444 OF 2008 (TRANSFERRED FROM DCPI No. 2256 of 2006) --------------------- BETWEEN
---------------------- Before : Deputy High Court Judge Bharwaney in Court Dates of Hearing : 24, 27, 28 and 30 April 2009 Date of Judgment : 11 May 2009 ------------------------- J U D G M E N T ------------------------ 1.The plaintiff brings his action for damages for personal injuries. The claim is not based on an accident occurring at work; rather the plaintiff claims that the deafness he suffers from was caused by high levels of noise at the various workplaces where he worked as a metal worker in the employ of the 5th and/or 6th defendants for the period from December 2003 to March 2004. Liability and quantum are both in issue; although it is fair to say that the main thrust of the defence case was that the plaintiff was guilty of contributory negligence. Liability 2.The plaintiff gave evidence before me relying on three witness statements that had been served on the defendants in these proceedings. He was born on 8 May 1957 in Guangdong, China and came to Hong Kong in 1980. After coming to Hong Kong, he worked as an air-conditioner repairman and his work also involved installing and removal of air-conditioners. He did this work for a few years before becoming employed by a company carrying on the business of manufacturing and installing advertising signboards. The plaintiff had been involved in the design, the manufacture and the installation of these signboards. He worked with that particular company for some 7 years before working for another company for a few more years. In 2000, he started working as a metal worker. The reason for the change in occupation was that his employer had relocated his business to the Mainland. His work as a metal worker included basic welding work for which he did not require a specialist welder’s licence. Working on advertising signboards, although noisy work, was less severe than the noise experienced on construction sites. 3.In December 2003, the plaintiff was employed by the 5th and 6th defendants to work as a metal worker and to carry on installation works at various stations of the Kowloon Canton Railway Corporation (“KCRC”) on the newly built Ma On Shan Line. Prior to commencing work, the plaintiff had to attend a safety training seminar provided by the KCRC at Shek Mun Station. The safety training included advice to use ear muffs or ear plugs if working in a noisy environment. However, the plaintiff said that no one in his group of workers would follow that advice. He said that he did not ever wear ear plugs and that most workers did not wear ear plugs on construction sites. They believed that they were able to withstand a certain level of noise and he stated that he was not aware of anybody who had suffered a mishap or adverse consequences from working in a noisy environment in the course of his many years of work. 4.It was the plaintiff’s pleaded case that he was assigned to assist in fitting metal pipes into pre-erected metal structures at the ceilings of the platforms of the stations concerned. As these pipes were longer than the spaces into which they had to be slotted, they could only be fitted by striking one end with a mallet after the other end had been fitted into the space. Two workers were needed to achieve this. For most of the time, the plaintiff would fit one end of the metal pipe into the allocated space and rest the other end of the metal pipe on his shoulder whilst his co-worker would strike that other end in order to fit it into place. The hammering process took place only a few centimetres from his ears and produced a high level of noise. 5.The pleaded case was supported by the oral testimony of the plaintiff and by his witness statement. §11 of his 1st witness statement contained a sketch of the pre-fitted angle bars and the metal pipe that had to be slotted into place between them. The plaintiff described the metal pipe as a hollow square pipe with a 10 mm thickness and varying in lengths from 1 m to 3 m and with metal plates affixed at both ends of the hollow pipe. The plaintiff even produced two photographs attached to his witness statement showing a person carrying a similar looking pipe on his shoulder whilst the plaintiff, carrying a large hammer, was using it to strike the base of the pipe at that portion of the pipe that was protruding behind the shoulder of the person carrying it. The plaintiff described the noise produced by the hammering process as akin to a monk hammering a bell. He said that the noise was as loud as the noise produced by a pile driver. 6.Notwithstanding the clear description of the hammering process in the Statement of Claim and in the plaintiff’s 1st witness statement, the defence and the witness statements filed on behalf of the defendants are silent on the work processes being carried out at the various railway stations at the time in question. It was only in cross-examination that it was put to the plaintiff that the metal pipes that he had installed were not rectangular or square hollow metal pipes but metal bars which were bent at right angles. 7.Tam Chau Hung gave evidence for the defence relying on his witness statement served in these proceedings. He said that he was employed as a metal worker as well as a supervisor for this particular project of installing metal bars at railway stations on the Ma On Shan Line. It is common ground that these bars or pipes were being installed at the ceiling of the platforms of the railway stations concerned in order to affix television monitors and other advertising boards from them. 8.Mr Kumar Ramanathan, counsel for the defendants, tried to adduce evidence from Tam Chau Hung about the manner of work employed on this project. I would not let him do so as Tam Chau Hung’s witness statement was silent on the subject, as indeed was the witness statement of the other witness, Tam Chau Ming, the 5th defendant. However, Mr Y.L. Cheung, counsel for the plaintiff, chose to cross-examine Tam Chau Hung on this matter. Tam Chau Hung denied that the hammering process was employed to fit the metal pipe into the allocated space. When shown the photographs attached to the plaintiff’s witness statement, he said that he had never seen this type of pipe before and that they had never used this type of pipe during their work on this project; the metal bars being used on this project were rightangled metal bars. He said that if the space between the angle bars was too tight to fit the metal bar in question, the workers would use a jack, similar to a jack used to jack up a motor vehicle to change tyres, to pry the angle bars apart in order to fit the metal bars in question. 9.Tam Chau Ming also gave evidence relying on his witness statement which, as stated above, was silent on the work processes employed on this project. He said that, as far as their work on the Ma On Shan Project was concerned, their work did not involve the type of metal pipe described by the plaintiff as a hollow rectangular pipe. He produced a sketch he had drawn of a right-angled metal bar saying that the work had to be carried out in accordance with requirements stipulating that this type of bar had to be used. He also said that the type of pipe described by the plaintiff could not be fastened with screws and bolts onto the angle bars. In cross-examination, he said that a jack would be used to enlarge the space between the angle bars if it was found that that space was insufficient to fit the metal bar in question. He disagreed with the suggestion put to him that the square plate affixed to the ends of the hollow rectangular metal pipe described by the plaintiff had holes in that part of the plate extending beyond the hollow pipe and to which the nuts and bolts from the angle bar could be attached. 10.The debate as to the type of pipes or bars being installed at the railway stations in question turned out to be academic when, at my suggestion, the parties took photographs of these pipes and bars, which are still present at those railway stations, and produced them to me. The photographs produced to me taken separately by the plaintiff’s and the defendants’ legal advisers included photographs of Shek Mun Station, Tai Shui Hang Station, Sha Tin Wai Station, City One Station and Heng On Station. 11.The type of rectangular metal pipe described by the plaintiff, with a metal plate at each end extending beyond the pipe and into which screws and bolts were attached, was immediately apparent in the photographs taken at Sha Tin Wai Station, City One Station, Shek Mun Station, Tai Shui Hang Station and Heng On Station. The right-angled bars described by the defence witnesses could also be seen in some of these photographs. However, these photographs quite clearly demonstrated that the evidence of Tam Chau Hung and Tam Chau Ming to the effect that this type of rectangular bars described by the plaintiff was not used on this project was incorrect and had to be rejected. Their categorical denial of the existence of this type of metal bars also made me concerned about the reliability of the other evidence contained in their testimony. 12.However, the main thrust of the defence case was not so much the existence of this type of rectangular metal bars but the manner of work employed in fitting them into the allocated spaces between the angle bars. An appeal was made to me to use my common sense to reject the evidence of the plaintiff that these metal pipes were hammered into place. The point was best put, I think, by Tam Chau Hung in his evidence when he said, in answer to a question put by Mr Cheung, that “if what you assert really happened, loud noise generated several inches from the head of the worker, that worker would have died already”. I must say that I found it somewhat difficult to accept such a manner of work could have been employed on this project given the obvious and serious noise hazard posed by the hammering process to the worker on whose shoulder the pipe rested. It was also submitted that that the work process described by the plaintiff was difficult to understand : why should the worker rest the pipe on his shoulder instead of just pushing it up into the slot with both his hands while it was hammered into place? Obviously, that would appear to be a more sensible and less hazardous way of doing it although, of course, that must depend on the height of the working platform on which the workers stood to install these metal pipes and bars and the space available to the workers. On the other hand, I found the defence suggestion, that some sort of jack was used to pry open the space between the angle bars, difficult to accept, not only because no mention was made of jacks being used in the witness statements of the two witnesses in question but also because I had some difficulty accepting the viability of using a jack when the space between the metal bars could be as much as 3 m. 13.The Statement of Claim setting out the plaintiff’s case about the hammering process used was dated 29 June 2007 and his 1st witness statement describing the hammering process was dated 29 October 2007. Had he described this hammering process any time before? When interviewed by Dr Lo Tsun Yan of the Kwun Tong Occupational Health Clinic on 14 October 2004, the plaintiff told Dr Lo that he had been working at Ma On Shan Railway Line at Tai Wai Station and Ma On Shan Station to install metal pipes of lengths of between 0.8 to 2 m. He used his shoulders to hold the metal pipes, alternating between shoulders, and the pipes were fitted by being hammered by another worker at a distance of about 5 to 10 cm from his ears. He fitted about 1,000 pipes in this way. This almost contemporaneous statement of the process of work lends credence to the plaintiff’s testimony. I found him to be a frank and honest witness and I find, notwithstanding my initial misgivings, that the hammering process described by the plaintiff was, indeed, the process of work adopted on this project. 14.Even if I had not accepted that the hammering process described by the plaintiff was the process of work adopted on this project, I would still have found that some process of work generating excessive noise caused the plaintiff’s substantial loss of hearing. 15.The plaintiff first sought treatment from Dr Cheng Suk Tung on 3 May 2004. He saw him on 3 occasions in May2004 complaining of recurrent dizziness, tinnitus in the left ear and left ear ache. He also sought treatment in Mainland China and was seen at the Beijing Tongren Hospital on 30 September 2004 complaining of ear pain, tinnitus and headache from early that year after working in a noisy environment. He was also seen by Dr Lo Tsun Yan of the Occupational Health Clinic at the Kwun Tong Jockey Club Health Centre. In his report dated 14 October 2004, Dr Lo stated that the plaintiff had worked in a construction site for 3 months where the working environment was quite noisy. He had decreased hearing for more than 6 months (from the date of his report) as well as tinnitus and vertigo. In his later report dated 19 May 2006, Dr Lo noted that there was no history of trauma of his ears at work. The pain was of insidious onset inside both ears in January and March 2004. There was tinnitus at night in April 2004. There was no ear discharge. His clinical diagnosis was hearing loss of unknown cause. Dr Au Siu Foon and Dr Lo Siu Sing expressed the joint opinion, in their report dated 14 February 2007, that the plaintiff was suffering from noise induced deafness which was not a one-off incident, the deafness being caused throughout the period from January to April 2004 at the KCRC project accumulatively. 16.In the light of this medical history, even if I did not accept that the work at the Ma On Shan Railway project involved a hammering process as asserted by the plaintiff, there must have been an excessively noisy environment causing the substantial loss of hearing that was suffered by the plaintiff during the period that he was working on the KCRC project. It was for this reason that Mr Ramanathan very fairly conceded in the course of his final submissions that the defendants were not asserting that they would not be liable if the Court found that the work did not involve the hammering process asserted by the plaintiff; rather, the defendants’ position was that these matters were relevant to the issue of contributory negligence. 17.In the circumstances, I have little difficulty concluding that the 5th and 6th defendants were liable, as employers of the plaintiff, for failing to adopt a safe system of work in that they caused or permitted work to be carried out in a manner which subjected their employees, and the plaintiff in particular, to excessive levels of noise and which caused personal injury to the plaintiff. 18.The 1st, 2nd and 3rd defendants, trading in the name of Nesco-China State-Hip Hing Joint Venture, was the principal contractor of the Ma On Shan Rail project and had sub-contracted a part of the project to the 4th defendant. As such, the 1st to 4th defendants were persons responsible for the workplaces where the plaintiff had worked and were in breach of statutory duty to the plaintiff for failing to ensure that the said workplaces were safe and without risk of health to the plaintiff, contrary to section 7 of the Occupational Safety and Health Ordinance, Cap. 509. CONTRIBUTORY NEGLIGENCE 19.As stated above, the plaintiff acknowledged that he had been instructed during the safety talk given by KCRC’s staff to wear ear muffs or ear plugs if working in a noisy environment. However, he said that no one in his group followed that advice. He himself had never used ear plugs in the course of his work. He had heard of ear plugs and was aware of their safety benefit in protecting his ears against damaging high noise. The workers did not wear ear plugs, or at least most of the workers did not wear ear plugs, on construction sites and he did not wear them. He had always thought that exposure to noise was a trivial matter and he was not aware of its dire consequences until this incident. He believed that people were able to withstand a certain level of noise and as far as he was aware, nobody had suffered a mishap from exposure to high noise. He realized, from the first week of working at the KCRC project, that he was being exposed to a high level of noise but he thought that his ears would recover after the completion of the project and after he had had some rest. He was aware that the noise level was terrible but he had not realized that it would damage his ears. Indeed, he had started to suffer from pain and discomfort within 2 weeks of working there but he did not realize that the consequences would be so dire. However, he did have the presence of mind to get hold of some tissue paper and to insert them into his ears as a means of reducing his exposure to noise. Clearly, this was not effective, as the joint experts reported. However, the plaintiff apparently did not have the presence of mind to ask for ear plugs or ear muffs or to take any steps to obtain ear plugs or ear muffs. In this regard, I note that the plaintiff had no difficulty getting ear plugs, at a cost of $6, which he used when he worked for the 5th and 6th defendants again in November 2005 at a nearly completed residential complex at Tseung Kwan O where he did some welding works. 20.Surprisingly, the lackadaisical attitude displayed by the plaintiff to exposure to high levels of noise was replicated by Tam Chau Hung who was the supervisor at the site. 21.Tam Chau Hung said that the only work being carried out at the Ma On Shan Rail project which required the use of ear plugs was work carried out by another group of workers using pneumatic drills. When asked where he obtained these ear plugs, he answered that they brought the ear plugs themselves, either other workers or he himself brought them. Later on in his evidence, he said that they were carried in a large tool box, 1 m by 1 m and about the height of the witness table, which they brought to the work place. The tool box contained basic safety equipment, such as safety belts, goggles, gloves, safety lines and the ear plugs. Although the Joint Venture maintained a converted shed as an equipment room at the Shek Mun Station, he confirmed in cross-examination that he had been to that room himself. As such, he could not give evidence of what was or was not in that equipment room. It is also clear to me that the plaintiff had only been to that converted shed once or twice in the 3 months that he worked on this project. He was not aware that the converted shed contained any ear plugs or ear muffs. In any event, that converted shed at Shek Mun Station was quite a distance away from many of the other stations where the plaintiff had to work. 22.Although Tam Chau Hung said in his evidence in chief that the only occasion which required him to wear ear plugs at the Ma On Shan Railway project was when other workers were using pneumatic drills, under cross-examination, he gave another example of the use of ear plugs, namely, when cutting machines were used to cut metal bars. However, he said that although the noise was unbearable, some of the workers did not wear ear plugs while others did. According to him, wearing of ear plugs was optional, not compulsory, and it all depended on whether the noise was acceptable. In his case, he wore ear plugs not because of the metal cutting work but because workers next to him from another team were using pneumatic drills. As a supervisor, he would only advise workmen to use ear plugs when cutting machines were used. It was disadvantageous to wear an ear plug because construction sites were hazardous, and the worker might endanger his own life by wearing an ear plug because the ear plug might prevent him from hearing a warning. If a worker was involved in cutting a large number of metal bars, he would wear an ear plug, but he would not wear them if he was just cutting one or two bars. 23.I asked specifically Mr Tam Chau Hung whether the plaintiff had participated in cutting work at the Ma On Shan Railway project. He answered that that the plaintiff did do so but he did not pay much attention to him; sometimes, the plaintiff was wearing ear plugs and sometimes he was not. He then went on to say that when he saw that the plaintiff was not wearing ear plugs, he would call after him to come down from the working platform and wear ear plugs first and that the plaintiff followed his instructions. I find that the latter evidence is difficult to accept. I got the distinct impression that that Tam Chau Hung was making things up as he went along in the course of his cross-examination. The suggestion that he had specifically instructed the plaintiff to wear ear plugs while he was doing work on a cutting machine is inconsistent with his earlier evidence that it was optional for the worker concerned whether or not to wear an ear plug. I also find his evidence in relation to the use of cutting machines difficult to accept given the fact that the metal bars and pipes being installed at these stations, as can be seen from the photographs produced, were all pre-fabricated according to specifications. Indeed, Tam Chau Ming confirmed during his testimony that it was not necessary to use cutting machines for the work being carried out on the Ma On Shan Railway project, although it was necessary to do so for general construction site work. 24.Mr Cheung for the plaintiff made the point eloquently : if ear plugs were easily available for the use of the workers employed by the 5th and 6th defendants, why did the plaintiff have to purchase his own ear plugs when he worked at the Tseung Kwan O site? 25.In the end, the critical question I have to ask myself in the context of the issue of contributing negligence was whether or not it was proved to my satisfaction that the tool box which was brought to the places of work contained ear plugs or ear muffs. 26.I am not satisfied, on the evidence I have heard from Tam Chau Hung and also from Tam Chau Ming, that the tool box contained ear plugs or ear muffs for the use of the plaintiff. 27.Even so, I conclude that the plaintiff, as a reasonable man, could have taken steps to obtain ear plugs for his own use in the very noisy environment he faced in which he suffered not only discomfort but actual pain in his ears. Stuffing tissue paper into his ears is clearly a step in the right direction but certainly not enough. Notwithstanding the attitude of workers towards noise exposure, including the attitude of Tam Chau Hung, the supervisor, and the plaintiff, I have to apply an objective standard to the facts of this case. Applying that standard, I conclude that the plaintiff failed to have sufficient regard for his own safety. Even if ear plugs were not available on site, he should have taken positive steps to obtain them. The one aspect of his evidence that I found difficult to accept, and do not accept, is his assertion that he complained about the noise to Tam Chau Hing. If he had done so, ear plugs could easily have been obtained. However, having considered all the circumstances of the case, including the unsafe system of work adopted and the culture of not wearing ear plugs, I also conclude that the plaintiff’s fault was minimal and I assess his contributory negligence at 15%. QUANTUM Plaintiff’s injuries 28.After the project was completed, the plaintiff sought treatment from Dr Cheng Suk Tung on 3 May 2004, 5 May 2004 and 10 May 2004. Dr Cheng carried out some tests to rule out nasophyaryngeal carcinoma. The plaintiff then sought treatment at the Peking University Shenzhen Hospital and later at Beijing Tongren Hospital. On 14 October 2004, he attended for an examination by Dr Lo Tsun Yan of the Kwun Tong Occupational Health Clinic. In his report dated 19 May 2006 in respect of the October 2004 examination, Dr Lo noted that physical examination showed intact ear drums. He could hear whispers at 1 m and conversation at 3 m. An audiogram showed moderate hearing loss. 29.The joint examination carried out by Drs Au and Lo on 25 January 2007 revealed that the plaintiff’s left eardrum was normal and his right eardrum was scarred. He did not suffer from any conductive deafness. His hearing capacity was symmetrical and he did not suffer from imbalance, nystagmus, cranial nerves abnormality or cerebellar signs. A Pure Tone Audiogram performed on the same day showed by bilateral 35 to 70 dB sensorineural hearing loss. 30.The doctors expressed the joint opinion that the plaintiff suffered from noise induced deafness which could have been prevented or minimized by using an appropriate ear muff. Tissue paper inserted into the ears by the plaintiff was not effective. They concluded that most of the damage on the plaintiff’s ears had been caused accumulatively during the period of 3 months when he worked on the Ma On Shan Project. 31.The doctors concluded that there was no effective treatment for sensori-neural hearing loss and tinnitus. The condition of the plaintiff’s ears was stable since 3 years had passed since the KCRC incident up to the time of their examination. The plaintiff had no problem of communication in his daily life. Hearing aid was not required at his level of hearing loss. The plaintiff’s hearing loss would not prevent him from performing his previous job as a metal worker but he had to wear hearing protection when the noise level was high. The doctors were also of the view that damage to the inner ear could cause hearing loss and tinnitus. Although it did not usually cause actual ear pain, one might experience ear discomfort when exposed to loud noise due to the phenomenon of “recruitment”. They therefore concluded that it was possible that the plaintiff experienced “pain” in his ears when exposed to loud noise. 32.According to the Pure Tone Audiograms, the average hearing loss of the plaintiff’s ears at various frequencies was :
Based on the 5th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, this was equivalent to 28.8% of binaural hearing impairment, which could be converted to a 10% impairment of the whole person. The doctors estimated an additional impairment of 1.5% of the whole person in respect of the plaintiff’s tinnitus, which affected sound discrimination, making a total of 11.5% impairment of the whole person. This was the total effect of the noise exposure from his previous work and his KCRC work. However, the majority of his hearing loss and tinnitus was caused by the KCRC job. 33.The experts are to be congratulated on reaching agreement in this case. It is refreshing to see a joint report with joint views being expressed, as opposed to what one often sees these days, namely, a joint report with completely disparate views expressed by the two experts preparing the so-called joint report. 34.The plaintiff also gave evidence that he suffered a great deal of pain and swelling in his eardrums in a noisy environment. He gave examples of the levels of noise he could not cope with which included the sound of an ambulance siren, and loud music being played, such as one would hear inside a music store. 35.The plaintiff has suffered a substantial loss of amenity. He speaks loudly to compensate for his lack of hearing and that in turn, must adversely affect his social skills. He has suffered and will suffer pain when he is accosted with loud noises, which is likely to occur often in the noisy urban environment of Hong Kong. PSLA 36.Counsel’s researches could not locate helpful comparables on awards of PSLA to reflect the extent of the hearing loss suffered by the plaintiff in this case. My own researches have located awards by Madam Justice Beeson in Chow Siu Ping v. Hop Lee Iron Works (HCPI 103 of 1999, 22 December 1999) and of Deputy High Court Judge Longley in Chan Shin Shun v. Yau Sin Chung (HCPI 90 of 2005, 28 March 2006). 37.In the former case, the plaintiff suffered, amongst other injuries, 60% loss of overall hearing which was equivalent to a 20% impairment of the whole person. Madam Justice Beeson awarded $900,000 as damages for PSLA for all the injuries he had suffered including $500,000 for his loss of hearing which she placed at the top end of the serious injury category. She found that the plaintiff had lost and would lose familial and social contact and was hampered in his already limited choice of jobs because of his hearing problem. In the latter case, the plaintiff suffered from serious injuries when the defendant struck the right side of his face with a spade. As a result of the head injury, he suffered from persistent headaches and dizziness, complete loss of smell and taste (anosmia), irritability and impaired concentration and memory. He had significant loss of hearing in his right ear. He had suffered fracture of the temporal bone and, according to Dr Au Siu Foon, who was also the expert in that case, fracture of the temporal bone could result in facial paralysis, loss of taste, hearing loss, tinnitus and vertigo. The plaintiff had difficulty tolerating noise. The learned deputy judge was satisfied that the injuries suffered by the plaintiff put him into the serious injury category and awarded $500,000 as damages for PSLA and an additional $100,000 as aggravated damages for injury to the plaintiff’s feelings. 38.A total impairment of 11.5% of the whole person would put the plaintiff’s injuries and disability within touch of the serious injury category. I would assess damages for PSLA in this case in the sum of $400,000. However, I would discount that award to $350,000 on account of the fact that some of that hearing loss was pre-existing. Loss of earnings 39.There is no question of discounting the other losses and damages claimed on account of pre-existing hearing loss as all of these losses and damages have been caused as a result of the substantial hearing loss of hearing suffered by the plaintiff when he worked on the Ma On Shan Railway project. 40.The parties are in agreement that the plaintiff earned $13,000 per month when employed to work on the Ma On Shan Railway project. Mr Ramanathan submits that an award of 6 months’ total loss of earnings is reasonable. The 6-month period, starting from the end of March 2004 when the project was completed, would have expired at the end of September 2004. However, the plaintiff had been seeking treatment on the Mainland and was only seen by Dr Lo Tsun Yan of the Occupational Health Clinic in mid October 2004. In the circumstances, I think it is reasonable to and I would award total loss of earnings for a period of 8 months, up to the end of November 2004. This amounts to $109,200 inclusive of loss of MPF benefits ($13,000 x 8 months x 105%). 41.Thereafter, the plaintiff should have obtained some gainful employment. Although he was able to resume employment as a metal worker, he could not work on noisy construction sites without wearing ear plugs. I accept the plaintiff’s evidence that his loss of hearing prevented him from working safely on construction sites which evidence was echoed by Tam Chau Hung who said that it was disadvantageous to wear an ear plug on construction sites and that the worker might endanger his own life by wearing an ear plug when working on construction sites because the ear plug might prevent him from hearing a warning. Although he was able to perform welding work at the tail end of the Tseung Kwan O project, when the site was no longer noisy, I accept the plaintiff’s evidence that he could not pick and choose such work and that working on construction sites meant that he had to work at every or any stage of the project, not just during the quieter part of the project, when it was nearly completed. I also find that he could not obtain gainful employment as a metal worker making and erecting advertising signboards as the industry has relocated to the Mainland and because employers prefer to employ younger persons to perform the installation work. 42.After the Ma On Shan Railway project, the plaintiff only worked as a casual decoration worker earning about $4,000 a month until November 2005 when he worked for the 5th and 6th defendants performing welding work on the nearly completed residential complex at Tseung Kwan O. 43.Thereafter, he obtained employment as a security guard earning $6,500, and currently $7,000, a month. I find that he could have and should have obtained such work from December 2004 and that his personal reasons which precluded him from such work, namely, that he had to look after his 7-year-old son who came to Hong Kong in 2005, cannot justify his increased claim for partial loss of earnings. 44.There has been a reduction in the work available to persons employed by the 5th and 6th defendants and they earn about $10,000 a month today. I find that the substantial reduction has only occurred in the past 12 months. On that basis, the pre-trial partial loss of earnings, inclusive of loss of MPF benefits, for the remaining pre-trial period of 53 months from December 2004 to April 2009 (61 months – 8 months) can be assessed as follows. The earnings from the Tseung Kwan O project from November 2005 to January 2006 must also be deducted. Those earnings amounted to $30,600 or $10,200 per month. The latter figure is lower than the notional earnings of $13,000 because he did not work a full month in November 2005 and in January 2006.
45.The total award for pre-trial full and partial loss of earnings amounts to $421,470. Other special damages 46.There is no dispute under this head and I award $9,160 as special damages. Future loss of earnings 47.The plaintiff is now 52 years old and claims a modest multiplier of 5 years for future partial loss of earnings, which I allow. I assess the award for future partial loss of earnings, inclusive of MPF benefits, as follows :
Loss of earning capacity 48.The plaintiff has accomplished much in his life given the fact that he suffered an injury at the age of 8 as a result of which he lost the middle, fourth and little finger of his right hand. He has managed to train his himself to use his half hand and has displayed surprisingly good dexterity with his right hand. Even so, the prejudices of the labour market are well known and, as Tam Chau Hung remarked, he had been kind to the plaintiff and paid him as a master worker even though his hand was crippled. 49.I conclude that there is a real risk that the plaintiff will suffer a handicap in the labour market, should he lose his current job, given his loss of hearing and obvious hand disability. I would award 9 months’ loss of earnings as a security guard in the sum of $63,000 ($7,000 x 9 months) to compensate for that risk. Interest 50.I award interest on damages for PSLA at 2% per annum from the date of service of the writ until the date of Judgment and on pre-trial loss of earnings and special damages at half the current judgment rate from 1 April 2004 until the date of judgment. I do not award any interest on the awards for future loss of earnings or loss of earning capacity. Reduction on account of contributory negligence 51.The above awards have to be reduced by 15% on account of the plaintiff’s contributory negligence. COSTS 52.The above awards exceed $1,000,000, without taking into account the reduction on account of the plaintiff’s contributory negligence. Therefore, I make a costs order nisi that the defendants do pay the costs of action to the plaintiff on the High Court scale, to be taxed if not agreed.
Mr Cheung Yiu Leung, instructed by Messrs Leung, Tam & Wong, assigned by the Legal Aid Department, for the Plaintiff Mr Ramanathan Kumar, instructed by Messrs Winnie Leung & Co., for the Defendants |
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