Gurung Bhakta Bahadur v. Green Valley Landfill Ltd

HCPI 333/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 333 OF 2009

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BETWEEN

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Before : Hon Bharwaney J in Court

Dates of Hearing : 12, 13, 14 and 18 January 2011

Date of Judgment : 28 January 2011

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J U D G M E N T

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1.This is a case of manual handling resulting in back injury and giving rise to these proceedings for damages for personal injuries sustained in an accident at work. The accident occurred some 4 years ago on 11 January 2007 at a site called the South-East New Territories Landfill which was occupied by the defendant, Green Valley Landfill Ltd. The site was used for the purpose of depositing garbage and other waste materials. The work of the defendant included site clearance and formation to make the site ready to receive the waste materials to be deposited on it.

2.The defendant employed a number of skilled labourers, including the plaintiff, to carry work for the defendant.  The plaintiff was assigned to work in the “liner” department.  This department was a division of the engineering department of the defendant.  The work of the liner department was placing plastic liners on the slopes of the prepared landfill.  These liners were then “welded” and thereby rendered waterproof in order to prevent liquid from the garbage and waste materials deposited on the landfill from seeping into and contaminating the soil underneath the liners.  The plaintiff had been employed by the defendant and had engaged in this work for some 8 years prior to the accident.  When he was not carrying out this work, he would carry out other work as instructed by his supervisor, including erecting and dismantling scaffolding, lifting heavy objects and using heavy machinery.

3.The slopes of the landfill would be cleared of trees and other large vegetation, and metal scaffolding would be erected on the cleared slope in order to prepare the slope to undergo a process whereby shotcrete would be sprayed on the slope.  These scaffolds were fixed scaffolding constructed with metal tubes that were attached to each other with metal clamps forming a grid-like pattern.  The tubes ran vertically up and horizontally across the slope to be shotcreted.  An example of a fixed scaffold on the slope of the landfill can be seen at the right of photograph A on p.52 of the Bundle.  This was one of the 4 photographs produced at trial that were taken at the site on 4 December 2006, about a month before the accident.  After the work on the slope was complete, these fixed scaffolds would be dismantled.

4.A short time before the accident occurred, a mobile scaffold frame fixed with wheels and pneumatic tyres similar to those found on motor vehicles was introduced by a Mr Nick Haynes for use at the site.  Mr Haynes was employed as a construction manager by the defendant.  He hailed from Australia where such mobile scaffolds were commonly in use and he introduced such scaffolds for use on the defendant’s site.

5.The mobile scaffold can be seen in photograph A on p.52 of the Bundle.  It is also depicted on the sketch attached to the witness statement of the plaintiff at p.41A of the Bundle.  As in the case of the fixed scaffold, this mobile scaffold was also constructed of metal tubes which were attached to each other with clamps.  The wheels with tyres were attached to the vertical tubular members at the base of the scaffold.  The tyres rested at an angle in a channel at the bottom of the slope.  The channel occupied the gap between the bottom of the slope and a concrete parapet wall constructed at the base of the slope.  Those tyres resting at an angle in the channel can be seen on photograph A on p.53 of the Bundle. Part of the tyres was touching and resting against the inside of the parapet wall.  The other part of the tyres was on the floor of the channel.

6.Three more wheels with tyres were attached to the metal tubes at different parts of the mobile scaffold.  These were intended to roll across the face of the slope when the scaffold was being moved.  A wheel was attached near the centre of the mobile scaffold about a third of the way down from the top of the scaffold while two other wheels were attached to the left and right side of the scaffold about a third of the way up from the bottom of the scaffold.  These wheels can be seen in photographs A and B on p.52 of the Bundle as well as on the sketch on p.41A.  The mobile scaffold depicted in the photographs had been lifted off and separated from the face of the slope and fixed into position by metal tubes protruding from the top of the slope and from the face of the slope which were attached to the mobile scaffold.  These photographs show the scaffold fixed in place and immobile and, as can be seen particularly from photograph B on p.52 of the Bundle, the three wheels affixed to the mobile scaffold appear not to be in contact with the face of the slope.

7.Once the mobile scaffold is in place and affixed as shown in photographs A and B on p.52 of the Bundle, workers would climb on the mobile scaffold to clear away the rest of the vegetation and any rubbish remaining on the face of the slope and further prepare the slope for the process of shotcreting.  When the process of slope clearance was completed, the mobile scaffold would then be moved along the face of the slope to another location for the same work to be carried out on that portion of the slope.

8.The use of the mobile scaffold clearly results in increased productivity as it eliminates the need to erect and then dismantle a fixed scaffold and to erect it again at a new position.  However, the use of the mobile scaffold carries with it other risks, including the risk that arises from manual handling.  The scaffold was heavy, about 1.5 tonnes in weight, and the tyres at the base of the scaffold were at an angle resting partly against the base of the parapet wall and partly on the channel floor.  At such an angle, the face of the tyres did not have even contact with the floor of the channel, thereby making it more difficult for the mobile scaffold to be moved.

9.However, according to Mr Yau Chi Keung, the Safety Officer in the employ of the defendant who was called to give evidence before me, the mobile scaffold could be moved in this slanting position.  When Mr Nick Haynes introduced this mobile scaffold for use on this site, Mr Yau had requested him to conduct a demonstration of how it could be moved, and this was conducted with the participation of a civil engineer.

10.Mr Yau explained that the wheels were attached to the base of the mobile scaffold on its two sides together with a wheel attached to the base at the middle of the scaffold. There were three wheels in total at the base.  The size of the tyres was similar to the size of tyres seen on private cars.  The mobile scaffold was smaller than a fixed scaffold and was to be used for clearing of the slope, but it was not used for the application of shotcrete.  Two to three workers would normally climb on the mobile scaffold and work from it after it had been moved in place.

11.Five workers were involved in the experiment of moving the mobile scaffold over a distance of 10 to 15 metres.  They did so in his presence and in the presence of Mr Haynes and the civil engineer.  In addition to moving the mobile scaffold, three workers also climbed from the base of the scaffold to the top, then back to the base in order to see if there was any movement on the scaffold.  After that experiment, some modifications were made.  The position of the wheels on the scaffold was changed and the scaffold was made smaller. These changes were made to make the mobile scaffold move more easily.  There was no alteration to the height of the scaffold, but its width was reduced from 6 grids to 4 grids.  After the alterations were completed, the scaffold was in the same condition as the scaffold shown on photographs A and B on p.52 of the Bundle.  The experiment of moving the smaller mobile scaffold was conducted after the alterations were completed.  They paid attention to whether or not the workers had to exert a lot of effort to move the scaffold.  After the experiment, the workers were questioned about it, and they said that it was not very difficult to move the mobile scaffold, and that it was rather easy to push it.

12.They had done the calculations before assigning 5 persons to perform the experiment of moving the mobile scaffold.  The scaffold weighed about 1.5 tonnes or 1,500 kgs.  It was about the same weight as that of a private car.  The force of 1/10 of the weight of a car is required for pulling the car.  However, someone pushing the car from behind only requires half of that force.  1/10 of 1,500 kgs was 150 kgs and 50% of that was 75 kgs.  On the basis of those calculations, 5 persons could easily generate greater force than that required to move the mobile scaffold.  Therefore, they assigned three persons to stand at the top of the slope and to push the scaffold sideways, and two persons at the base inside the channel, one to pull the scaffold and the other to push the scaffold at the other end.  These two persons did not use straps to do so, but used their hands to pull and push the scaffold.  There could also be two persons pushing at the top and three pulling and pushing at the bottom, but the practice they had adopted, which was the way it was done every time that he was able to see the mobile scaffold being moved, was that there were three persons at the top and two at the bottom.  It was difficult to position three persons at the bottom, as it was difficult to stand in the channel in the middle of the scaffold.  It was easier to have just two persons at the bottom, one pulling at one end of the scaffold and the other one pushing at the other end.

13.When the mobile scaffold had to be moved, the metal poles at the top of the slope and protruding from the face of the slope, which kept the mobile scaffold in place, would be removed. When this was done, the scaffold would fall closer to the face of the slope, and the weight of the scaffold would press the wheels with tyres onto the surface of the slope, enabling those tyres to make good contact.  According to Mr Yau, moving the scaffold along an uncleared portion of the slope was a smooth operation, because even if the tyres were lifted off by reason of a bump or other obstacle on the uneven slope, this would be for a very short moment. Mr Yau did not agree with the suggestion put to him that the uneven surface of the slope posed a risk in moving the mobile scaffold.

14.Mr Yau said that they did not compile a written risk assessment report after the experiment, but they were satisfied that the mobile scaffold could be used safely on site.  They recognized the risks associated with its use, including the risk of working in the open in inclement weather and exposing the workers to the risk of being struck by lightning.  There was also the risk that the workers might fall off from the top of the slope if they stood too close to the edge.  Also, if there were not enough people to move the mobile scaffold, there might be problems, but they were satisfied that 5 persons were sufficient to move the mobile scaffold.

15.The 5 workers who took part in the experiment were informed that, in future, there should be 5 workers performing the job of moving the scaffold.  Mr Yau was not sure whether the plaintiff was present at the time of the experiment, but he said that Mr Nick Haynes supervised the movement of the scaffold on subsequent occasions and had to give instructions to all the workers.  Mr Yau was not present on such occasions, but he did see the mobile scaffold being moved by the workers when he made the rounds at the site in the course of his work as the Safety Officer.  The mobile scaffold had been used on the site for a few months before the time of the accident.  Although the plaintiff might not have been present when he had conducted the experiment, in the course of his patrols at the site, Mr Yau had seen the plaintiff present on other occasions when the mobile scaffold was being moved and he had seen the plaintiff move this mobile scaffold before the date of the accident.

16.There was a flat cut-out area at the top of the slope which was about 3 metres wide on which the workers at the top would stand to push and move the mobile scaffold. Mr Yau had once tried himself to move the mobile scaffold standing at the top of the slope, and he demonstrated to me how he extended both his arms and held the vertical tubular section at the top of the scaffold which reached about the height of his chest.  The scaffold was about a foot away from the edge of the slope, where he was standing, and the scaffold extended above him to a height of about 1.3 metres above the flat cut-out area.  On another occasion, he had seen the plaintiff at the top of the slope holding onto the vertical tube of the scaffold with both hands and pushing the scaffold sideways in the direction of the intended travel of the scaffold.  He had seen the plaintiff move the mobile scaffold two or three times before the date of the accident.  However, he was not present at the location of the mobile scaffold on the day the plaintiff complained of having suffered back injury.

17.The plaintiff gave evidence stating that he had worked for the defendant for eight years up to the time of the accident and that he was a skilled and experienced labourer in the areas of work in which he was engaged.  He usually worked with his crew in the liner department performing the work of climbing and welding liners made of plastic. On the morning of 11 January 2007, he was assigned to work with 7 co-workers to move a mobile scaffold at the site.  He was standing at the top of the slope at one side of the mobile scaffold.  Another co-worker was standing at the other side of the mobile scaffold.  6 other co-workers were working below in order to pull and push the mobile scaffold from left to right as depicted in the sketch on p.41A of the Bundle.

18.That sketch depicts the mobile scaffold and the position of the plaintiff and his co-worker at the top of the scaffold.  It also shows the base of the mobile scaffold with five wheels, one wheel fixed to each vertical member of the scaffold, with two workers pushing the scaffold with their hands and two pulling it by pulling on a strap tied to the wheel attached to the outer vertical tube at the base of the scaffold.  Presumably, they were standing in the channel where the wheels were resting.  They are shown pushing and pulling the mobile scaffold from left to right.  The plaintiff said that there was an error on the sketch as only one person was pushing the scaffold at the base of the scaffold and not two persons, as wrongly depicted on the sketch.

19.The sketch also shows, at a position slightly higher up from its base, one person pushing and two others pulling on a strap attached to the outer vertical tube of the scaffold.  The plaintiff explained that there was a platform, at the same level as the top of the concrete parapet wall that is shown on the photographs, that these workers stood on in order to push and pull the mobile scaffold.

20.The height of the mobile scaffold is described on the sketch as 38’ and its width as 16’.  An apostrophe is usually used as an abbreviation for “feet”.  Mr Yau agreed that the mobile scaffold was over 30 feet high and some 16 feet wide.  Judging by the appearance of the mobile scaffold as depicted on photograph A on p.52 of the Bundle and of the person depicted on the right of the same photograph, I find that the dimensions given on the sketch on p.41A of the Bundle are a correct approximation of the actual size of the mobile scaffold and that the plaintiff was mistaken when he referred to those dimensions as being “metres” instead of “feet”.

21.In his witness statement, the plaintiff stated that to move the mobile scaffold, he had to stand next to the top of the scaffold and bend down slightly in order to position the horizontal tube of the scaffold on his shoulder and lift up the scaffold so that the co-workers at the bottom could move the scaffold by pulling and pushing it.  In the course of doing so, when he placed the vertical tube of the scaffold on his left shoulder and lifted up the scaffold, he felt great pain on his lower back and he screamed and sat down where he had stood before.  In his evidence he explained that without lifting the scaffold it could not move because it was rested on the slope.  The scaffold was slanted at 60°.  If the scaffold at the top was moved from a slanting position to a straight position, there was a balance and the wheels would move easier.  Unless lifted, the scaffold would not move because the wheels were slanted.  By lifting, he meant moving the scaffold to a straight position, not lifting the scaffold so that the wheels were lifted off the floor of the channel.  He was facing outward and he pushed the scaffold and shuffled 1 to 2 steps to the left when he felt his back was hurt and he sat on the ground.  He was pulled down because of the heavy weight and that is why he had to sit down.  The supervisor had assigned him to work at the top but he did not tell him what to do.  He was told how to move the scaffold by his co-workers.  They told them to stand on both ends of the scaffold at the top and to lift up the scaffold and wait for the signal before moving with the scaffold.  The location of the accident was the first time that he had seen a mobile scaffold like this and the first time he had moved this mobile scaffold.

22.The plaintiff was cross-examined about his witness statement in which he had said his job duties included making scaffolding, dismantling scaffolding, moving scaffolding and any other works he was instructed to perform by his supervisor.  He agreed that he was listing his general duties prior to the date of the accident in his witness statement but he failed to give a satisfactory explanation why he had stated that his duties included “moving scaffolding” when the first time he had done so was on the date of the accident.  Although, in his evidence in chief, he had claimed that he had never seen it before the date of the accident, the plaintiff conceded that he had seen the mobile scaffold at the site 3 to 4 days before the accident and even agreed that he was one of the members of the team who had erected the mobile scaffold under the supervision of Mr Nick Haynes.  He then corrected that statement and asserted that he had helped to construct the fixed scaffold at the site but not the mobile scaffold.  He evaded and refused to answer straight forward questions.  These aspects of the plaintiff’s evidence make me doubt his reliability.

23.The plaintiff had given a demonstration during his evidence in chief of how he bent forward to push against the mobile scaffold.  However, during his cross-examination, he insisted that he could not bend his back in order to demonstrate the posture he had adopted when he was moving the scaffold.  Given the joint medical evidence to the contrary, I am wholly unable to accept his claim that his back was completely stiff and rigid.

24.He said that the flat cut-away at the top of the slope was 1 m wide and that the gap between the mobile scaffold and the edge of the slope was also 1 m.  The plaintiff said that the gap should be more than 1 m because “it has to be wider at the top in order to give balance to the wheels at the bottom”.  Given the plaintiff’s obvious mistake regarding the dimensions of the mobile scaffold, IA have no difficulty preferring the evidence of Mr Yau who said that the flat cut-away at the top of the slope was 3 m wide and that the gap between the mobile scaffold and the edge of the slope was 1 foot.  If the gap between the mobile scaffold and the edge of the slope was as much as 1 m, it would have been quite difficult for the workers at the top of the slope to stretch out and hold on to the vertical metal tubes of the mobile scaffold.

25.Mr Yau did not agree with the claim of the plaintiff that he had to position his shoulder against a horizontal tubular pipe of the scaffold at the top of the slope in order to lift up the scaffold.  Mr Yau agreed that if the scaffold could be straightened, the tyres at the base would have better purchase on the floor of the channel and move more easily, but he explained that the scaffold was very heavy and, as it could still be moved with the tyres at a slant as shown on the photographs, it was not necessary to lift up or straighten up the mobile scaffold.  Moreover, had that been done, the tyres attached to the upper parts of the scaffold would be lifted off the face of the slope and could not provide traction along the face of the slope.  Further, if the slanting mobile scaffold was straightened up, the scaffold would be out of reach of those workers at the top of the slope and those workers could not hold onto it and move it.  He had never seen workers, including the plaintiff, attempt to move or carry the mobile scaffold with their shoulders.  I accept the evidence and explanation of Mr Yau and find that the suggestion by the plaintiff that he had to position his shoulder against a horizontal tubular pipe of the scaffold at the top of the slope in order to lift up or straighten up the scaffold was an exaggerated gloss that he put on his evidence in order to give the impression that he suffered a severe injury to his lower back in the course of using his left shoulder to push up the mobile scaffold.

26.Mr Yau also did not agree with the plaintiff’s statement that there were two workers, including the plaintiff himself, at the top of the slope, and 6 or 7 workers at the bottom.  The channel at the bottom of the slope was small and could not accommodate so many persons.  He also said that there was no platform above the floor of the channel on which the workers could stand to pull and push the mobile scaffold.  There should have been five workers, including the plaintiff, pushing the mobile scaffold on the day of the accident, and that was a sufficient number to move the mobile scaffold.  I accept the evidence of Mr Yau in this regard.  I find it very difficult to accept that there was a platform fixed along the face of the slope a short distance from its base on which workers could stand to push and pull the mobile scaffold as asserted by the plaintiff.  If there was such a platform, it would have obstructed the movement of the mobile scaffold.  I also find that there were three workers at the base of the scaffold pulling and pushing it at the material time of the accident and not six workers as asserted by the plaintiff.

27.I also find that there were three wheels fixed at the base of the scaffold, one attached to the two vertical tubes at each end and one attached to the vertical tube at the centre and that the sketch, which had been prepared presumably by his legal representatives for the plaintiff’s use in these proceedings mistakenly depicted five wheels at the base of the scaffold.  The photograph A on p. 53 of the Bundle clearly shows the central wheel and the outer wheel attached to the vertical tube at the end of the scaffold but there is no wheel attached to be vertical tube between the central and outer tubes of the scaffold.  The plaintiff himself conceded that from where he was at the top of the slope, he could not see the wheels at the base of the scaffold.  I also find, as stated by Mr Yau, that the direction of intended travel of the mobile scaffold on the day of the accident was from was from right to left which is consistent with the state of the slope a month before the accident as depicted on photograph A on p.52 of the Bundle.

28.Mr Yau said that he had worked with the plaintiff for about 8 years and would speak to the plaintiff in English about his work.  He disagreed that the plaintiff only spoke a little English.  I accept Mr Yau’s evidence in this regard. He also conducted some of the safety courses which the plaintiff participated in, including a course on manual handling, which was about the danger of lifting things manually.  During that course, he had advised his class to take precautions to protect their lower back, the most important of which was to keep the waist upright and to use the force of the legs to lift objects.  The plaintiff had attended a number of these safety training courses, which were provided by the defendant, including a course on metal scaffolding and falsework safety training conducted by an association which was recognized by the Labour Department.  Mr Yau conducted a similar course at the Polytechnic University.  However, his course did not deal with mobile scaffolds.  The mobile scaffold in question had only been introduced and used on the site for a few months before the date of the accident.

29.Mr Nick Haynes has already left the employ of the defendant and has returned to Australia.  However, he was present at the time of the accident and compiled an Incident/Accident Report which appears at pp.49-50 of the Trial Bundle.  He recorded the time of the incident as 8:30 a.m.  The time he made his report was 9:30 a.m.  He described the nature of the injury to the plaintiff as “sprain”, and the location of the injury to be at the lower back. He provided the following description of the incident :

“[The plaintiff], whilst assisting in scaffold movement, was pushing the frame of the scaffold up and away from the slope. After the frame had been moved, he climbed down from the top of the scaffold where he had been working and advised that he had hurt his back and requested to see a medical doctor.”

Mr Haynes drew a sketch of how the plaintiff was pushing the mobile scaffold at the top of the slope.  His sketch is consistent with the description of how the work of moving the scaffold should be performed provided by Mr Yau in that the sketch shows the plaintiff standing straight with his two arms extended and holding one of the vertical tubular members at the top of the mobile scaffold.  Mr Haynes also drew an arrow on the sketch to indicate the direction of travel.  However, being a two-dimensional sketch, the arrow could either be an indication of the plaintiff pushing the mobile scaffold sideways in the direction of the intended travel, or it could indicate the plaintiff pushing the mobile scaffold “up and away from the (face of the) slope”.

30.Mr Ashok Sakhrani, who appeared for the defendant, accepted that the description contained in the Incident Report must have been provided to Mr Haynes by the plaintiff, namely, that he was pushing the scaffold up and away from the slope, and that this was a wrong movement because the proper way of moving the scaffold was to push the mobile scaffold sideways.  The plaintiff said in his evidence that he had told his co-worker everything about the accident and that the co-worker had reported the same to Mr Haynes.  He accepted that this was what the plaintiff said he was doing, but he submitted that this version was not consistent with the nature of the act required.  Although there was no express evidence that, at a certain time and date and place, the plaintiff was given specific instructions on how to move this mobile scaffold, Mr Sakhrani submitted that the evidence adduced showed that the plaintiff was aware of the safe method of pushing the mobile scaffold, namely, to push it sideways and not up and away from the face of the slope, and that he had applied the safe method in the past to move the mobile scaffold and had done so without incident. Mr Sakhrani provided the analogy of a person pushing a metal shutter sideways in order to open it.  The evidence of Mr Yau was that Mr Nick Haynes supervised and observed the movement of all the workers when they were moving the mobile scaffold and that, if he had seen anything wrong, he would have corrected it.

31.Although there was no evidence that the plaintiff received specific instructions on how to move the mobile scaffold on the day of the accident, Mr Sakhrani submitted that the evidence showed that he had previously done the task in a way that Mr Yau and Mr Haynes had approved.  If he had done it before properly, he need not be instructed over and over again.  The task was easy and not difficult or awkward such that the workers had to be instructed every time the mobile scaffold had to be moved.

32.In the light of this evidence, Mr Sakhrani submitted that the only reasonable inference I should draw is that the Plaintiff had been instructed and knew that he had to move the mobile scaffold by pushing it along sideways.  He was skilled and experienced and did not need a renewal of those instructions.  The risk of sprain injury was inherent in the work of construction labourers and could happen in many ways including the cumulative effect of earlier stresses on the lower back.

33.Mr Sakhrani has made, in his usual fashion, very compelling and eloquent submissions.  He submitted that this was a simple task which did not require repeated instructions, and that I should infer from the totality of the evidence that the plaintiff had been properly instructed at some time in the past, prior to the accident in question.  However, there are certain aspects of this case which take it out from the ordinary work that skilled and experienced labourers are expected to do safely without specific or repeated instructions.  It was accepted by all concerned that the mobile scaffold was a very heavy structure and a novel one, which was used for the first time on the site in Hong Kong, just some months prior to the time of the accident in question.  It was also accepted by Mr Yau that if the mobile scaffold could be straightened, the tyres would have better purchase on the floor of the channel and move more easily.  It should therefore have been reasonably foreseeable that a labourer like the plaintiff, albeit skilled and experienced in his usual area of work, who had no experience of working with a mobile scaffold of this nature, might mistakenly attempt to push the frame of the mobile scaffold “up and away from the slope” in order to facilitate its movement across the slope.  Having heard the evidence of the plaintiff and Mr Yau, and notwithstanding the exaggerated gloss placed on his evidence by the plaintiff, I find that, on the day of the accident in question, he did exactly what was told to and recorded by Mr Haynes, namely, that he was pushing the frame of the scaffold up and away from the face of the slope.  For the reasons given in his evidence by Mr Yau, I agree with Mr Sakhrani that the attempt to push the frame of the mobile scaffold “up and away from the slope” was a wrong manoeuvre to perform.  However, the fact it was the wrong thing to do does not lead me to conclude that he did not do it.  The injury he suffered at that time is consistent with him performing this wrong manoeuvre.

34.Further, in the absence of direct evidence of express instructions given to him not to do so, my finding that he carried out this wrong action on the day of the accident leads me to infer that he had not been properly instructed on how to move the mobile scaffold. I cannot discern any good reason why he would push the mobile scaffold up and away from the slope if he had been instructed to push it sideways. I also find that the plaintiff sprained his back in the course of performing this wrong manoeuvre, and that the injury was caused by the negligence of the defendant in failing to instruct the plaintiff how to move the mobile scaffold properly.  I accept the submission that it was not necessary to repeat those instructions, but I find that he was not properly instructed in the first place.

35.I accept the evidence that Mr Haynes was supervising the work of moving the mobile scaffold, but he would have been doing so from some distance away, and whilst he would have been able to make out the plaintiff at the top of the slope pushing the scaffold, he might not have noticed the wrong manoeuvre adopted by the plaintiff of attempting to push the frame of the scaffold up and away from the face of the slope.  I also accept the evidence of Mr Yau and find that he had seen the plaintiff move the mobile scaffold on previous occasions. I also conclude that if he had seen the plaintiff adopt the wrongful manoeuvre of pushing the mobile scaffold away from the face of the slope, he would have stopped him and instructed him how to perform the task of moving the mobile scaffold properly.  I conclude that he did not notice the plaintiff performing the wrongful manoeuvre.  However, the fact that he did not notice the plaintiff do so does not mean that the plaintiff did not do so.

36.Overall, I accept the evidence of Mr Yau as being truthful although there were some aspects of his evidence which I considered to be defensive and less reliable, such as the double hearsay evidence he gave that, after the accident, his supervisors had asked other workers about the accident and they did not speak of any wrongful occurrences on that occasion.  I accept that Mr Yau saw the plaintiff some time after the accident had occurred, and that the plaintiff did not complain to him of any wrongful instructions being given.  However, he would not complain of wrongful instructions being given if he did not appreciate that he was carrying out a wrongful manoeuvre.

37.I do not find that there was any contributory negligence on the part of the plaintiff. Notwithstanding that he was a skilled and experienced worker, his experience with moving the mobile scaffold was extremely limited.  Although, as the plaintiff well knew, the scaffold was clearly a very heavy structure, its wheels were resting at a slant at the base of the channel wedged against the concrete parapet wall.  The plaintiff’s action of pushing the frame of the scaffold up and away from the face of the slope was instinctive and not unreasonable, as even Mr Yau agreed that doing so would enable the tyres at the base to have better purchase on the floor of the channel and allow the mobile scaffold to be moved more easily.  In the absence of evidence of express instructions given to the plaintiff on how to move the mobile scaffold properly, the defendant has failed to establish that the plaintiff did not have sufficient regard for his own safety when he pushed the frame of the scaffold away from the face of the slope on the date of the accident in question.

Quantum

38.The Plaintiff was 36 years old at the time of the accident on 11 January 2007 and is now 40 years old.  He was previously married and has one son aged 13 and one daughter aged 10.  He came to Hong Kong in 1998 and his very first job here was with the defendant.  He had worked with the defendant for 8 years as a skilled labourer up to the time of the accident.  In the course of attempting to move the mobile scaffold, he felt great pain on his lower back and sat down there and then.  His co-worker at the top of the slope became aware of his discomfort and informed the others to stop work.

39.He was taken to and seen by a doctor at the Tseung Kwan O Clinic.  Later that morning, he was taken to the Accident and Emergency Department of the Tseung Kwan O Hospital shortly after 11 a.m.  He gave a history of back pain after lifting heavy objects at 8:30 a.m.  The physical examination was unremarkable.  He was walking normally without limping.  There was no back deformity and no neurological deficit.  He was diagnosed to have suffered from a sprained back and discharged with analgesics.  He was treated conservatively by medication and a course of physiotherapy and hydrotherapy for about 3 months.  He was granted sick leave certificates from the date of the accident up until the end of May 2007.  A Medical Board was convened and assessed his loss of earning capacity at 0.5%.  The plaintiff subsequently received employees’ compensation in the sum of $118,588.25.

40.Before me is a joint medical report of Dr Wong Chin Hong, instructed by the plaintiff’s solicitors, and Dr David F.C. Cheng, instructed by the defendant’s solicitors, dated 23 December 2009.  The doctors in question are specialists in orthopaedics and traumatology, and they conducted a joint examination of the plaintiff on 17 November 2009.  Dr Wong had previously examined the plaintiff in February 2008 and had prepared a medical report in respect of that examination.  During the joint examination, the plaintiff complained of on and off back pain.  He said that his pain was worse in the morning, gradually getting better.  He complained of pain after walking, sitting from 20 to 30 minutes after which he needed to stretch out.  He complained of more pain during change of weather.

41.The plaintiff gave evidence before me saying that he did not have the same pain that he used to have before, but pain occurred when there was a change of weather, and when he woke up in the mornings.  The pain would slightly reduce after he warmed up for a while.  It was variable; sometimes it was painful, sometimes it was not, and sometimes the pain was slightly reduced.  He could no longer pursue his former hobbies, which included volleyball, badminton, football and dancing.

42.At the joint examination, the plaintiff walked, stood and sat normally and could support himself on any one leg, on his toes and heels.  He could only squat halfway, complaining of back pain.  There was no deformity of the back and tenderness was elicited at the lower back.  There was no muscle spasm and the range of motion was good: flexion (bending forwards) was 40º, extension (bending backwards) 30º, side-bending 30º on each side and rotation 40º in each direction. Straight leg raising test was 45º bilaterally in the lying down position, with complaint of back pain.  In the sitting position, the straight leg raising test was 70º bilaterally without pain.  His reflexes were normal.  There was no muscle wasting and there was normal lower limb power.  Sensation was normal.

43.Waddell’s test was positive.  This test is often used to detect malingering in patients with back pain.

44.X-ray of the lumbar spine taken at the time of the joint examination showed slightly reduced lumbar lordosis and osteophytes were seen over L2 and L3.  The disc space was normal, and there was no evidence of any bone injuries.

45.The doctors found the plaintiff’s back to be in a good state in their joint examination.  There was good range of motion, good muscle power and normal neurology.  They found little physical impairment.  There was low back tenderness.  There were also positive Waddell’s signs, suggesting a certain degree of inconsistency and symptom magnification, which however was understandable in cases of this nature.  They agreed that the plaintiff had reached a state of maximum medical improvement for his injury, and that his prognosis was good.  Dr Cheng assessed the plaintiff’s impairment of the whole person at 1-2%, whilst Dr Wong assessed it at 2% on account of persistent low back pain and tenderness. I accept the opinion of the orthopaedic experts.  The plaintiff himself said that he no longer suffered from persistent back pain and that his back pain was variable, being worse in the mornings and inclement weather.

46.I am guided by the authorities cited to me in respect of the proper award for PSLA in cases of this nature, particularly Ali Shoukat v. Hang Seng Bank Limited HCPI 3 of 2003 and Ernest Poon Kwok Wing v. Airport Authority of Hong Kong HCPI 305 of 2004.  I award $150,000 as damages for PSLA.  Whilst the Plaintiff has suffered a back sprain resulting in residual pain and discomfort, he has clearly exaggerated the extent of his disability.  He asserted to me that he was unable to bend his back at all when the joint report clearly showed that back flexion (i.e. bending the back forwards) was 40º degrees, and he could perform the straight leg raising test in the sitting position up to 70º bilaterally without pain.

Loss of earnings

47.The plaintiff is entitled to claim loss of earnings up to the end of his sick leave period.  I am prepared to allow him another 2 weeks in order to prepare himself to return to gainful employment.  Therefore, I award full loss of earnings for a period of 5 months.  There is no dispute that the plaintiff earned $13,800 per month at the time of the accident.  The award of pre-trial full loss of earnings comes to $69,000.  An additional 5% on account of loss of MPF benefits increases that award to $72,450.

48.I see no basis to award the plaintiff any partial loss of earnings thereafter, either for the pre-trial or post-trial periods.  I accept the evidence of Dr Cheng that his injury was a simple sprain without any complications.  The joint examination showed that there was little physical impairment.  Dr Cheng was of the opinion that the plaintiff should have been able to resume his pre-accident job of a construction site worker, and that there was no need for job change or job restriction.  I am wholly unable to accept the evidence of Dr Wong which is not supported by the findings made at the joint examination. Dr Wong expressed the opinion that the Plaintiff’s ability to carry and lift heavy loads was compromised and that he would need to modify his work to reduce heavy exertion and lifting, and that in the absence of such modification, he would need to search jobs of lighter nature, such as car park attendant and office worker.  Certainly, the occurrence of this sprained injury has made the plaintiff more vulnerable.  A future occurrence of back injury may render him more seriously impaired and unfit to continue heavy manual work. However, I must assess damages in this case based on the actual injury suffered by the plaintiff and its current impact on the plaintiff’s earning capacity, and I find that, apart from the period covered by his sick leave certificates, he is able to return to his pre-accident employment but with this added vulnerability, which might impact on his future earning capacity.  In my judgment, this is a classic case for an award of damages for loss of earning capacity.  The plaintiff is under a continuing duty to mitigate his loss and he has to be more conscious of his back problem.  He must perform exercises to strengthen his back and to reduce the risk of re-injury.  Having said that, however, it is reasonably foreseeable that he is at risk of spraining or injuring his back some time in the future at which point in time the cumulative effect of the present and the future injury may to impact adversely on his future earning capacity.  Mindful of these considerations and the difference in the level of his pre-accident earnings and the earnings that he could procure in suitable less arduous employment, such as working as a security guard for example, I assess damages for loss of earning capacity on a global basis in the sum of $100,000.

Special damages

49.These are agreed in the sum of $3,000.

Employees' compensation.

50.The amount of employees' compensation received by the plaintiff in the sum of $118,588.25 must be deducted from the total amount of damages assessed above.

Interest

51.I award interest on general damages for PSLA at the rate of 2% per annum from the date of service of the writ up to the date of judgment.  I award damages on pre-trial loss of earnings and special damages at the rate of 4% per annum from the date of the accident up to the date of payment of employees' compensation.

Costs

52.I make an order nisi as to costs of the action in favour of the plaintiff to be taxed, if not agreed, on the District Court scale.

Miss Katharine Chan, instructed by Messrs Lim & Lok, for the Plaintiff

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