Rashad Muhammad v. Gurung Amrit Singh t/a Fewa Co and Another

HCPI  531/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 531 of 2009

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Before:  Hon. Wright, J.

Date of Hearing: 6 and 7 July 2010

Date of Handing Down of Judgment: 16 July 2010

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J U D G M E N T

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1.The plaintiff, a 31 year old male of Pakistani origin, was employed by the 1^st defendant as a rigger on a construction site known as MTRC West Kowloon station. On 26 March 2008 he sustained an injury to the tip of his left thumb whilst at his place of employment. It is admitted that the plaintiff was employed by the 1^st defendant and that the 2^nd defendant was the principal contractor at the site.

2.The plaintiff's case as pleaded is that as a consequence of the injury he experienced pain and suffering and is now prevented from carrying on his previous occupation; that the injury which gave rise to that condition was caused by the 1^st defendant's negligence or by the breach of the duty of care which it owed to him as his employer, or by the 2^nd defendant’s breach of its statutory duty of care, which breaches have been particularized in 15 different ways; and that the likelihood of harm to him was foreseeable.

3.The defendants dispute that either was negligent or in breach of any duty of care and that any injury was foreseeable. In the alternative, they contend that there was contributory negligence on the part of the plaintiff.

The Facts     

4.The plaintiff asserted in his witness statement, which stood as his evidence in chief, that since arriving in Hong Kong in 1997 he had worked in the construction industry as a general labourer for a number of subcontractors. In the year 2006 he changed jobs and on 1 August 2006 he took up employment with the 1^st defendant on the introduction of a friend, Nassar Khan, who, on the date of the incident, was his immediate superior. Although he was employed by the 1^st defendant as a general labourer he was already in possession of a rigger's certificate which had been issued to him in 2005.

5.He was promoted by the 1^st defendant from the post of general labourer in October 2007 to that of rigger: in cross-examination he accepted that he had been performing the duties of a rigger from August 2006 to the date of the incident and had received his promotion as a consequence of having performed those duties satisfactorily. He testified that it was a part of his duties as a rigger to ensure that loads placed on vehicles for transportation were safe and secure.

6.On the day of the incident he had been instructed by his supervisor to load a metal drum on to a crane truck and to unload it at Jordan Ferry pier. He was accompanied by two general workers from the site. This task was carried out without mishap whereafter the truck, its driver, the two general workers and the plaintiff returned to the site.

7.After returning to the site he was to supervise the loading of steel frames onto the same truck and transport them, one by one, to the ferry pier. He placed hooks into the first metal frame structure and the truck driver/crane operator commenced hoisting the frame on to the flatbed of the truck. The two general workers were present whilst this was being done, assisting. Whilst the frame was still being hoisted and before he had seen that it was placed safely and securely onto the truck the plaintiff left the scene to go to the toilet.

8.It was not disputed by the defendants that after leaving the toilet the plaintiff returned to the truck to find that the driver/crane operator and two general workers were nowhere to be seen. The frame had been loaded onto the truck.

9.It is at this stage that there is considerable contradiction in the plaintiff's versions of events as to just how it was that the injury came to be sustained by him.

10.In the plaintiff's statement made to the Labour Department on 8 July 2008 he says:

"I found the four legs of the metal frame structure were unevenly cut. Although a wooden block was inserted to the shorter length of the metal frame to keep it in position, I had to test if the arrangement was stable. I used my left hand to hold the wooden block and my right hand to shake the leg. All of a sudden, my left thumb was trapped between the bottom of the leg and the wooden block."

11.He was asked a number of questions subsequent to making his statement of which the following are relevant:

"Q5:    Why don't you use both hands to grip the metal frame?

Ans 5: When my right hand was shaking the leg of the metal frame, my left hand could push the wooden block further. At time of accident, the leg of the metal frame suddenly slipped, hence, my thumb was trapped.

Q6: How many time you use this method for testing the stability of the metal structure?

Ans 6: It was the first time to use this method because the loading was not under my presence. ...

Ans 10:   I usually checked the legs of the metal frame before loading. If I found the legs were uneven I would suggest to cut them to the same level or cut the structure into smaller pieces before they were loaded onto the truck. However, this metal frame structure was loaded on to the track in my absence."

12.In an accident report dated 24 July 2008 prepared by the Labour Department the description of how the plaintiff contended the incident occurred is recorded in these terms:

"1.3 He found that under the right front leg of the metal frame structure was wedged with a wooden block. To test the stability of the wedge arrangement, he used his right hand to hold and shake the right front leg of the structure and his left hand to push the wooden wedge. In the course of the said testing, the right front leg suddenly slipped unexpectedly. [The plaintiff’s] left thumb tip was inadvertently lacerated by the bottom edge of the right front leg.”

13.In his witness statement the plaintiff describes the circumstances in these terms:

"16. When the steel frame was still being hoisted, I went to the toilet. When I returned from the toilet I found that the steel frame structure had already been loaded onto the crane truck with lifting cable detached. The driver had closed down the crane and left for lunch. The supervisor was not present and had apparently gone to his lunch. It was also my lunch hour.

17.  I noticed that the legs of the steel structure were unevenly cut and the workers had inserted a timber chock underneath the shorter leg of it so that it did not move in the course of transportation. The width of the steel frame structure was also wider than the truck platform and overhung on both sides.

18.  It was my duty to ensure roads will not fall off from the crane truck during transportation by road to its destination. I was afraid the crane driver would return from his lunch before everyone else and drive away. Therefore I had to check whether the arrangement was stable. I used my left hand to hold the timber chock and used my right hand to shake the leg of the steel structure. As I was doing so the piece of timber chock gave way the steel leg moved down and my left thumb was caught between the bottom of the leg and the timber chock. I took off the cotton gloves and my left hand was bleeding. I went to the site office which was about two minutes walk. I was given first aid and later the safety officer arrived and looked at my wound and called the main office."

14.Those accounts may be thought to be broadly consistent with one another. When, however, it came to cross-examination the plaintiff asserted that he had not attempted either to push the wooden chock or to move the leg of the structure. He said that he "just had [his] left hand" on the chock and was testing whether weight was on it or not whilst he  was "just holding the leg" which was “too heavy” for him to try to shake. He was quite clear that he was not attempting to move either the chock or the leg and that as he "touched the chock" it fell down: he had "just kept his hand" on the chock and the frame fell onto him. He had "applied no force at all to the chock".  

15.His attention was invited to question and answer number 5 set out in §11 above and he was asked which account was true - that appearing in that answer or that in his oral testimony. He said that, contrary to his testimony, answer 5 was correct elaborating, later, that he was in the process of pushing the chock attempting to "insert it properly". He denied that he was being untruthful and said that he was simply confused.

16.I do not accept this new version propounded by the plaintiff, that he was merely standing with his hand on the wooden chock when the frame dropped onto him.

17.Realistically, Mr Clough, who appeared for the plaintiff, accepted that he “appeared” to give evidence different to that pleaded. I was not impressed with the plaintiff as a witness: he was evasive during cross-examination, especially after the mid-morning adjournment. He was questioned in regard to answers which he had provided on previous occasions as to whether he was right-handed or left-handed and sought to take refuge behind the fact that his answers had been provided by way of an interpreter. I do not accept that there was any issue with interpretation. The questions which he had been asked were simple. He claimed unconsciousness in hospital after being given an injection: the hospital records show to the contrary. In his witness statement he says that the frame overhung both sides of the flatbed of the truck: he accepted in cross-examination that the frame in fact was within the limits of the edges, which appears consistent with the photographs exhibited.

18.He realised the difficulty that he was in when being cross-examined and tried to avoid the consequences of truthful answers. His lack of candour and propensity to say what he believes will be in his interests is further illustrated by his claimed inability to return to his previous employment despite compelling medical evidence to the contrary.

19.I am satisfied that what the plaintiff has said on previous occasions before coming to court more accurately reflects what occurred on the day of the incident. He was fully aware of the fact that a frame was being loaded on to the crane truck and that it was his responsibility to ensure that it could be safely transported yet, despite this, he chose to absent himself from the loading process before it was complete. I note his evidence that it was his lunchtime, as well as that of the driver/crane operator and the general workers.

20.I accept that upon his return neither the general workers nor the driver/crane operator was present at the crane truck. The plaintiff plainly did approach the truck and then manipulate the frame, the wooden block or both in some manner or another so as to cause the tip of his thumb to be pinched between the wooden block and a part of the frame. That it was what may properly be described as the tip of his thumb being "nipped" is evident from the fact that he was able to withdraw his hand, apparently without any difficulty, from the glove which can be seen in photographs exhibited as having the very tip of the thumb portion caught between the wooden block and the frame.

21.That being my finding as to the mechanism of the injury, the question then is whether either defendant was either negligent or in breach of its respective duty.

22.Whilst, of course, an employer owes an employee a duty of care the Court of Final Appeal observed in Cathay Pacific Airways Ltd v WONG Sau Lai (2006) 9 HKCFAR 371 @ §1:

"Being a duty of care, it is not absolute. But the standard of care demanded is naturally a high one since personal safety is at stake. Breach of this duty resulting in injury to or the death of an employee affords a cause of action against the employer in the tort of negligence... What does it take to prove a breach of this duty? Such a question is necessarily a broad one since the detailed answer in each case must depend on its facts."

and, @ 24, that it is:

“...a single duty to take reasonable care for .. employees’ safety.”

23.It is helpful to recall the words of  Lord Oaksey in Winter v Cardiff Rural District Council [1950] 1 All ER 819 @ 822H, itself a case concerning injury to an employee resulting from movement of an unstable load on a vehicle:

“In my opinion, the common law duty of an employer of labour is to act reasonably in all circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foreman and workmen must exercise theirs...”

and of Lord Macdermott @ 823F:

“The test throughout is, I think, that of what is reasonable and proper to be done for the safety of the workman in the circumstances of the particular case.”

24.Of note is the plaintiff's answer to Q10 asked by the factory inspector. He asserted in that answer that he usually checked the legs of a frame before it was loaded onto a truck and, if he saw that the legs were of unequal length, he arranged for them either to be evened up or for the entire frame to be cut up. This is in contradiction of his response during cross-examination, and contrary to commonsense, that when a structure is on the ground one cannot see whether it is unstable, but that this becomes visible once hoisted.

25.It will be recalled that it was his evidence that it was he who had secured the ties necessary to enable the frame to be lifted onto the truck and that the lifting had commenced when he went away - albeit that he also contradicted this latter aspect in response to a question by his own counsel. He does not suggest at any stage in his evidence that he had checked the frame prior to it being loaded onto the truck, despite his earlier assertion that this was his practice.

26.When he returned to the scene and found nobody else to be present the fact that he decided to check the stability of the frame shows, of necessity, that he appreciated that there was a prospect of it being unstable. He confirmed this in cross-examination when he said that he realized that the structure may “fall off” the truck if it were driven. Despite this appreciation he then chose, having consciously absented himself from the lifting and loading process, to use a method to check the stability of the frame and chock which he had never used before - and to do so without reference to his supervisor whom he accepted he could have contacted.

27.He claimed that the reason he acted as he did was because he was concerned that the “driver would return from his lunch before everyone else and drive away”. That evidence does not sit comfortably with his testimony that both he and the general workers were required at the ferry pier to assist in the offloading process and that, as a matter of course, travelled in the truck - although he did say that the journey was short enough to permit of them having followed on foot.

28.Even so, there simply was no necessity for the plaintiff to have interfered with the chock and frame at that stage: he needed to have done nothing as there is no suggestion in the evidence that, at that time, the arrangement posed any danger to the plaintiff or to anyone else. On the plaintiff’s evidence the worst case scenario was that there was a potential danger which would only be realized, if at all, once the truck was moved.

29.There were obvious, commonsense avenues open to the plaintiff to prevent that happening, none of which would have involved exposing himself to a situation in which he might be injured. Instead, the plaintiff made a conscious decision to act, unnecessarily, as he did.

30.The plaintiff accepted that he had supervised the loading of lorries in situations like this many times before: he was an experienced rigger, well-familiar with the working practices of his employer which, until then, he had followed without incident. This was his first departure from those practices. He was, he said, trusted to do his job properly and safely.

31.In my judgment there was no failure at all on the part of either defendant: neither was negligent, neither was in breach of its duty. I am satisfied that the defendants had taken all such reasonable precautions as were necessary. The  injury sustained by the plaintiff was solely the result of his own negligent conduct.

32.The mere fact that the plaintiff was injured at work, of itself, does not entitle him to compensation from his employer.  He has received employee’s compensation: to obtain additional compensation from either of the defendants, he has to prove his claim, on a balance of probabilities, against either or both of  them. He has singularly failed to make out any of the particularized grounds of negligence.

Quantum

33.In the light of my finding that the defendants are not liable to compensate the plaintiff it is not necessary for me to deal with the issue of quantum in any detail. I believe it appropriate to say a little because the plaintiff’s assertions in support of quantum are interwoven with the issue of his credibility.

34.The plaintiff has claimed in his Revised Statement of Damages an aggregate of $3,194,653 computed as follows:

PSLA	$125,000
Pre-trial loss of earnings and MPF	$464,100
Post-trial loss of earnings and MPF	$2,457,000
Disadvantage on the labour market	$100,000
Other special damages	$3,552

35.In their answer the defendants submit that  PSLA should not exceed an amount of $80,000. For my part, I would have thought $50,000 to be the appropriate amount. The defendants contend on the medical evidence available, correctly in my view, that the plaintiff would only be entitled to pre-trial loss of earnings for a period of four months which, on the now-agreed monthly earnings of the plaintiff of $18,181 per month, amounts to $72,724 +5% for MPF of $,3636.20 making an aggregate of $76,360.20. They also appropriately acknowledge the claim in respect of other special damages. The real issue if future loss of earnings

36.As the plaintiff says in his witness statement, it was not necessary for an ambulance to take him from the scene of the incident to hospital. He went there in a private vehicle and was accompanied by a third party. When he arrived at the Queen Elizabeth Hospital he was seen in the Accident and Emergency Department. He was referred to the Orthopaedics and Traumatology Department. Debridement of the wound and repair of the nail bed was performed . The procedure took 25 minutes. The injury was described in the medical notes as "A crush injury of the left thumb with avulsed nailplate and laceration over nail bed". He was discharged the following day with the instruction to return after 15 days: he was provided with antibiotics and dressing for the wound, as well as analgesics, for that period.

37.He returned to the Orthopaedic and Traumatology Department on 10 April 2008 when the sutures were removed and the condition of the wound noted to be "satisfactory". He was started on physiotherapy which he attended on 16 occasions up to 16 July 2008.

38.One medical report prepared on behalf of the Accident and Emergency Department indicated that on the day of the accident the left hand and wrist had been x-rayed which showed no definite fracture. Similarly, a report prepared for "Department of  GOPC clinic" confirmed that an x-ray arranged that day had a result of "no abnormality detected". However, a report prepared on behalf of the Department of Orthopaedics and Traumatology indicated that radiographs performed on 26 March 2008 showed a comminuted fracture of the distal phalanx of the left thumb. The plaintiff, of course, bears the onus: it cannot be said that he has satisfied me on the balance of probabilities that he actually sustained a fracture to his left thumb in addition to the soft tissue injury.

39.That, however, may be largely of academic interest because the overwhelming evidence is that the plaintiff has made full recovery from an injury which one of the orthopaedic surgeons whose evidence was available in this matter has described as being "similar to many simple domestic lacerations".

40.The report from the Department of GOPC Clinic shows that by 15 October 2008, when the plaintiff's condition was considered by the Medical Assessment Board, the "wound over left thumb was well healed" and, more significantly, "Range of movement of left thumb was nearly full”. For the purposes of this action the plaintiff was examined and a joint report prepared by two orthopaedic surgeons, Dr. Johnson CK Lam on behalf the plaintiff and Dr. Daniel K H Yip on behalf of the defendants. They assessed the plaintiff on 25 February 2009 and had available to them records from Queen Elizabeth Hospital.

41.Amongst the complaints expressed to them by the plaintiff were, first, his left thumb could not bend/move fully because of pain at interphalangeal joint and, secondly, he could not play basketball because he was unable to hold the ball with his hand. He asserted that he was unable to return to his previous as a rigger because of disability caused by residual stiffness of and pain in his thumb.

42.Their examination of the plaintiff "... revealed mild deformity of the nail, and mild loss of soft tissue". They continued "The active ranges of motion of the thumb as demonstrated to us were measured. In the measurement of active flexion of the thumb, there was a wriggling movement of the IPJ which [the plaintiff] said was uncontrolled. This made measurement of active management difficult and did not reflect the true disability." There was no obvious wasting in the arms or forearms, which Dr. Yip opined "...further contradicts [the plaintiff's] current complaints.” Three radiographs which were taken were described as "unremarkable."

43.Dr. Lam described the examination for active range of motion of the thumb as having "... some wriggling/inconsistent movement of the IPJ - suggestive of an element of submaximal effort in testing, and this had made estimation of the degree of stiffness more difficult. On testing of passive range of motion, the range of motion was actually better, and the 0 to 70° of IPJ flexion probably better reflected the true degree of stiffness". When cross-examined about this the plaintiff denied that he had sought to worsen the extent of the claimed stiffness during the examination: I reject that evidence. It is clear from the medical reports that this is precisely what happened.

44.Dr Lam, the plaintiff's own orthopaedic surgeon , expressed the "overall view... that [the plaintiff] should be able to perform [duties which the plaintiff previously claimed to have performed as a rigger], but if he did return to such duties, he needed to do these actions more slowly and carefully and some reduction in efficiency and endurance would be expected due to pain and some sensory impairment." He took the view that "duties that requires less heavy manual labour would be more appropriate."

45.Dr Yip, however, expressed the view that the residual deformity had no functional relevance and that "The medical evidence is clear that he does not have stiffness. He may have a tiny amount of wound sensitivity but this is short term. It is similar to many simple domestic lacerations."  Dr Yip was unequivocal: the plaintiff "... is able to return to his pre-injury employment as a rigger if he is motivated."

46.I have had the benefit of seeing photographs of the plaintiff's hands taken at the time of the examination by the orthopaedic surgeons as well as the radiographs and, in addition, of observing the plaintiff in court. I reject, as being without any foundation, the submission made on behalf of the plaintiff that Dr Yip shows bias in comparing the plaintiff's injury to a simple domestic laceration. I accept his evidence in this regard.

47.I also accept that the plaintiff is able to return to his pre-injury employment: this is the view of both orthopaedic surgeons, albeit that Dr. Lam’s view is mildly qualified. I reject the plaintiff’s assertions to the contrary which are subjective and unsupported, indeed contradicted, by the evidence.

48.It follows that, in my judgment, the plaintiff has failed to prove any future loss of earnings post-trial at all, or any disadvantage in the labour market.

49.In assessing the plaintiff’s credibility generally I have taken into account his attempts to exaggerate the nature and consequences of his injury which is relevant to his overall honesty and reliability as a witness.

Conclusion

50.The plaintiff’s claim is dismissed and there will be judgment for the defendants. Costs of the defendants, as taxed or agreed, to be paid by the plaintiff. The costs order shall be an order nisi with liberty for either party to restore for argument on notice given within 14 days of this judgment.

Mr Neal Clough, instructed by Massie & Clement, for the Plaintiff

Mr Ashok Sakhrani, instructed by Deacons, for the Defendants

Plaintiff's appeal to Court of Appeal dismissed. Please refer to CACV165/2010 dated 8 July 2011