LEE PING v HONG KONG KARTINGSPORT ASSOCIATION LIMITED

HCPI 496/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 496 OF 2008

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Before:  Hon Chung J in Court

Dates of Hearing:  19 and 20 January 2010

Date of Handing Down Judgment:  29 January 2010

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in October 2007 (in the District Court, before its transfer to the High Court in 2008) claiming damages for injuries suffered during the course of his employment.  The causes of action relied upon are:-

(a) negligence;

(b)    breach of employment contract in failing to take reasonable precautions for the plaintiff’s safety, or to provide adequate and suitable equipment and/or assistance, or exposing him to risk of injury, while at work;

(c) an occupier’s common duty of care.

2.  The defendant denies liability.  At the time of trial, the defendant also contended the plaintiff exaggerates the extent of his injuries.

Background

3.  Most of the background facts are undisputed.

4.  The plaintiff was 47 years old in April 2006.  He commenced employment at the defendant’s construction site (“the defendant’s site”) in March 2006.

5.  The plaintiff’s 15-year experience as a construction site worker has primarily been in rock-breaking work.  Such work basically involves drilling horizontal rows of holes on large pieces of rock with a heavy power-breaker as part of the process to break them up.

6.  To prevent the emission of dust thus created, the drilling spot has to be dampened with water.  A water pump and hose were used for such purpose.  The water hose was attached to the power-breaker used by the plaintiff.  The part of the slope where the plaintiff was working would be dampened by the excess water running down from the drilling spot.  Consequently, the slope surface would become wet, muddy and slippery.

7.  Since March 2006, the plaintiff has been breaking up rocks on a slope at the defendant’s site, working his way upward.  On 25 April 2006 (about one month since working there), the plaintiff carried on with his work on the slope.  At around 11:30am, he slipped and fell and felt severe pain on his back.

Liability: Disputed Facts and Findings

8.  The main factual dispute is whether the plaintiff has fallen a height of about 3 metres as a result of his slip.  According to the plaintiff’s witness statement (which he adopted as part of his testimony):-

“當本人在該斜坡上工作時，突然被該斜坡上的濕滑泥土滑倒，並跌在該斜坡的下一層約有3米高的位置” (para. 6 thereof).

The plaintiff’s witness statement also attaches a sketch showing the 3-metre “step” on the slope (but the sketch also states that it was not drawn to scale and was for reference only).

9.  For the reasons given below, I agree with the defendant this part of the plaintiff’s testimony cannot be safely relied upon.

10.  First, a medial report dated 19 August 2007 recorded that the plaintiff was examined by the doctor on 28 April 2006 (3 days after the accident).  His complaint was:-

“Fell from 1m height at work and injured lower back”.

I reject the plaintiff’s claim that the doctor misunderstood him.

11.  Secondly, the plaintiff’s co-worker, a Mr Lee Chi Hung (“Mr Lee”), also testified (for the plaintiff).  His witness statement (also adopted by him at trial) reads:-

“當本人 … 走回原先站在該斜坡的位置時，看見原告人跌坐在他打石所站的位置的後幾米。 … 他 … 並對本人說他在打石時因地面非常濕滑，從該斜坡滑了一跤，因而跌坐在地上” (emphasis supplied) (para. 3 thereof).

Further, during his cross-examination, Mr Lee described the place as only “slightly slopping”.  He never mentioned a step on the slope.

12.  Thus, the totality of the evidence suggests that:-

(1) the part of the slope where the plaintiff was standing was not steep but was “slightly slopping”;

(2) there was either no step on the slope (in view of Mr Lee’s narrative quoted above and his testimony).  Alternatively, if there was a step, it was not a very tall one;

(3) consequently, it is more likely the plaintiff only slipped and slid for a short distance, rather than having fallen vertically for 3 metres as he claims.

13.  By reason of the above matters, the factual dispute is resolved in the defendant’s favour (as summarized in para. 12(1) to (3) above).

Liability: Breach of Reasonable Duty ?

14.  The particulars of negligence (which particulars were repeated for the purpose of the other two causes of action) are set out in the amended statement of claim in 12 sub-paragraphs (para. 4 to 6 thereof).

15.  In his witness statement, the steps which the plaintiff contends should have been taken by the defendant are:-

(a) to provide him some means of restraint, such as a rope, or safety belt or harness;

(b)    to install fences on the slope

(para. 7 thereof).

16.  During final submission, the plaintiff submitted that the following steps would reasonably prevent him from slipping:-

(1) para. 15(a) above;

(2) to engage another worker whose task was to control the quantity of water coming out of the water hose;

(3) closer supervision, namely, to procure a supervisor to visit the plaintiff and warn him of the risk of slipping once about every hour.

17.  In considering the steps which the plaintiff argues should have been taken by the defendant, one should have regard to the following:-

(a) the task in question is relatively simple, namely, to stand steadily while drilling holes on the rock;

(b)    the plaintiff was relatively experienced in the work he undertook at the time (see para. 5 above);

(c) the plaintiff has been performing the same work at the defendant’s site for about a month already (see para. 7 above);

(d)    the plaintiff’s work required him to move around quite a bit (see para. 5 above);

(e) the plaintiff was aware of the risk of slipping when standing on a muddy slope; he wore safety footwear for such purpose.  In any event, such risk must have been obvious to a worker with the plaintiff’s experience and/or as a matter of common knowledge;

(f) finally, the plaintiff has undergone basic industrial safety training.

18.  The provision of a rope could not reasonably have prevent the plaintiff to slip.  The plaintiff’s case is that the rope would be tied to his waist and to one of the trees at least 3 to 4 metres away from him.  But because he needed to moving around, it would have been necessary for the rope to have a slack.

19.  The presence of a co-worker whose task was to “water” the drilling spot was not pleaded (save perhaps in the form of unparticularized averments, such as a safe system of work, or adequate measures for safety), and more importantly, was not dealt with in evidence.  Hence, it is unknown what would have been the “reasonably adequate” amount of water (“adequacy” will have to be judged in the light of the matter set out in para. 20 below).

20.  In any event, such measure cannot reasonably prevent the plaintiff’s slip.  Anyone who has seen the amount of dust which a small domestic electric drill can produce when drilling a concrete wall can infer the amount of dust which the plaintiff’s power-breaker can produce must have been enormous.  The amount of water required to reduce the dust will have to be substantial.  The fact that a water hose was required at the time also speaks for itself (see para. 6 above).

21.  The “closer supervision” contention was again not pleaded, nor was it dealt with in evidence.  That the supervisor should visit the plaintiff once every hour or so to remind him of the risk appears to be an after-thought.  Bearing in mind slipping could not have been the only risk in rock-breaking work, logically any need for reminder should cover all such risks.  It would be too stringent a legal duty if an employer were obliged to constantly remind his workers about all possible risks.

22.  It can be inferred the plaintiff has abandoned the contention set out in para. 15(b) above, and rightly so.  In view of the matters set out in para. 17 and 18 above, such measure would not be an effective means of preventing the plaintiff’s slip.

23.  It is common ground an employer’s duty of care (whether couched in terms of a cause of action in negligence, breach of implied contract term or occupier’s common duty of care) is only a reasonable duty, and not an absolute duty: see for example Charlesworth & Percy on Negligence (2006) 11^th Ed., para. 10-11.

24.  To conclude, I am not satisfied there has been any breach of the duty of reasonable care on the defendant’s part.

Conclusion

25.  The plaintiff has not been able to establish his case in liability.  This action is accordingly dismissed.

Quantum of Damages

26.  The gist of the plaintiff’s injuries has been summarized in the joint medical report dated 12 March 2008.  The plaintiff’s earlier complaint was that his back pain did not improve but actually became worse after the accident.  By December 2007 (the time of joint examination), the plaintiff complained:-

“… of constant back pain, worse at night … [He] can walk for about 30 minutes, then there is back pain and left sciatica. … [He] needs a stick.  He is worse off without the stick.  He sits for about an hour, and then there is pain all around.

[He] cannot perform any sexual activities.

He can perform activities of daily living such as toilet, bathing etc.

Wife says his temper has become bad”;

On physical examination, it was found:-

“He appears depressed.

…

He walks with stick [in] right hand in a very slow manner.

Without the stick, he can only manage a few steps.

He cannot support himself on any one leg.

He cannot squat, saying there is back pain” (emphasis supplied).

The doctors found stiffness of the spine (that is, very limited flexion and side-bending, but no extension at all).  However, they found no muscle wasting.

27.  Both medical experts accepted that there was pre-existing spine degeneration caused by aging (multiple disc degenerations were found).  There was otherwise no neurological deficit or bony injury.  Their opinion differed as follows.  The plaintiff’s medical expert opined that the pre-existing condition, which was asymptomatic, became symptomatic as a result of his accident at work.  The defence medical expert opined that the plaintiff may have some residual discomfort, but overall the symptoms should not affect the plaintiff’s work (there is a possible work efficiency reduction during the first 3 or 4 months).

28.  A surveillance video has been taken of the plaintiff in January 2009 (less than 3 years from the date of accident and about a year after the joint medical examination) and it was shown at trial.  When he testified, the plaintiff said there was not much improvement between December 2007 and January 2009.

29.  I agree with the defence the video shows several discrepant matters:-

(1) the plaintiff’s walking speed was not much different from other pedestrians.  There were no noticeable signs of discomfort (compare para. 26 above);

(2) he could stand on one leg.  Despite the presence of a fence nearby, apparently the plaintiff did not find it necessary to make use of it when doing so;

(3) at times, his walking stick was not in contact with the ground.  Even when it was, it does not appear the plaintiff relied on it in any substantial degree;

(4) the plaintiff did not look depressed in some of the close-up shots;

(5) the plaintiff bent down without apparent difficulty;

(6) the plaintiff could walk up and down staircases with no apparent difficulty.

30.  With the above in mind, I agree with the defence the plaintiff is not a reliable witness and there are signs of quite obvious exaggeration.

31.  By reason of the above matters, if it were necessary to assess the quantum of damages, the amounts awarded would not have been more than:-

(a) $150,000 for pain and suffering and loss of amenities of life;

(b)    $192,780 for pre-trial loss of earning (being a period of sick leave of about one year at an average monthly income of $15,300  ($850 x 18));

(c) $8,000 for special damages.

Costs Order

32.  The parties agree that the usual rule that costs should follow the event is applicable.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendant to be taxed if not agreed.

33.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap. 91A).

Mr Albert Yau, instructed by Messrs Rita Law & Co, assigned by the Legal Aid Department, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Winnie Leung & Co, for the Defendant