Rai Rana Magar Pabitra and Another v. Pacific Construction (HK) Co Ltd and Others

HCPI 398/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 398 OF 2008

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BETWEEN

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Before : Deputy High Court Judge Burrell in Court

Dates of Hearing : 22‑24 February 2011

Date of Judgment : 7 March 2011

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J U D G M E N T

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1.This is a fatal accident case. The plaintiffs are the widow and eldest daughter of Rana Majar Mohan Jung (“the deceased”) who suffered fatal injuries whilst at work as a construction site worker on 12 June 2005.

2.He had been employed by the 1^st defendant as a skilled labourer to work for the 2^nd defendant who were subcontractors of the main contractor, the 3^rd defendant.  No issues of apportionment arise; all defendants are represented by Mr Ashok Sakrani of counsel.  The plaintiffs have been represented by Ms Josephine Pinto.

3.The site was the Hong Kong Shenzhen Western Corridor in the New Territories where a road bridge was under construction.

THE ACCIDENT

4.As part of the construction of the road bridge it was necessary to transport onto the site enormous pre-cast concrete sections of the bridge’s structure.

5.Initially they were moved to the site by water transport, a crane would then move them from the water to the land.  The crane would lower them onto a very large static steel “chair”.  This chair was rectangular in shape and had four legs, one at each corner.  Each leg was about 1.4 metres high.  The steel platform (chair) onto which the concrete section was lowered was about 6 metres x 4 metres.

6.Once on the steel chair the concrete section could be moved into place by a machine called a “carrier”.  The carrier could be moved by an operator who stood nearby and controlled the panel which was attached to either the front or the rear of the carrier.  The carrier was the 9 metres long, 3 metres wide and 1 metre high.  It had 24 wheels.

7.The carrier would be manoeuvred under the chair holding the concrete section.  Once in place it could be raised upwards off the ground.  The chair and the concrete could then be slowly moved to another place.

8.The carrier came from the manufacturer with a seat attached to its front.  The seat could be easily detached from the carrier.  It could also be attached to the rear of the carrier.  The seat was similar to a car seat set into a steel frame with a steel bar in front of the seat onto which a seated person could place one or both hands.

9.At the time of the accident, there was no concrete section on the steel chair. The carrier was in place underneath the steel chair.  The operator of the carrier, a Mr Rana Chandra Parker (the plaintiffs’ witness, PW2) was ready to reverse the carrier from underneath the chair.  The electric control panel was attached to the rear of the carrier where PW2 was standing.  It was after 9:00 p.m. but there was lighting on.  The carrier also had lights of its own at each corner.

10.The deceased was a skilled labourer usually engaged with a different gang of labourers at a different, albeit nearby, location.  Some minutes before he commenced the reversing manoeuvre of the carrier the operator had seen the deceased talking to another worker near the front of the carrier.  The deceased would have been about 12 metres away from the operator and on the same side of the carrier.  In other words each party was near a corner of the carrier on the same side of the carrier but 2‑3 metres away from it.

11.When the operator actually commenced to reverse the carrier the deceased and the person to whom he had been talking were no long in view.

12.The carrier had not moved very far, just a few metres at the most, when the operator saw a safety helmet roll into his view from the front of the carrier. He stopped the machine and walked forward to investigate.  He found the deceased lying on the ground parallel to the front of the carrier with his head next to one of the static legs of the steel chair.

13.He appeared to be badly injured and was in great pain.  The operator noticed injuries to his front upper body and back upper body.  He was groaning and saying “I’m dying I’m dying.”  He was taken to hospital.  Over the next 25 days he had varying levels of consciousness.  He was operated on six times but, sadly, could not be saved and died from his injuries 25 days after the accident.

FINDINGS

14.Because of the shape and size of the carrier when underneath the chair a person standing at the rear of the carrier cannot see all things on the other side of the carrier.  There is large area which is a blind spot.  It would be possible to see at least the head and shoulders of a worker standing in the blind spot. However, a person who was sitting or crouching or objects on the ground could not be seen.

15.The operator, Mr Rana, agrees that when he commenced the reversing of the carrier he had not walked to the front to see if the blind spot was clear.  He may have thought it unnecessary because he was about to move the carrier backwards towards himself and not forwards.  He did not shout out that the carrier was about to move.  There is no specific requirement that he should. It is merely a fact that he did not.

16.It is overwhelmingly probable that the deceased had, for reasons unknown, sat in the seat at the front of the carrier when it was still stationary.  There is no other sensible explanation for the accident.  Had he been merely standing in front of the carrier near to where he was later seen on the ground, the carrier would have reversed away from him.  Had his foot become trapped under a wheel he would have sustained injuries to his foot but little else.

17.However, he had severe injuries to his front and back upper body.  The steel bar in front of the seat was lightly buckled.  All the available evidence points to him sitting in the seat.  Perhaps he assumed it was going to go forwards.  However it started to go backwards.  His helmet would have first collided with the stationary steel chair frame, then his body would have been thrown forward towards the steel bar in front of the seat.  In the seconds that followed he would have been crushed while extracting himself and falling to his right onto the ground, his helmet came off and the carrier stopped.  He had been fatally injured.

LIABILITY

18.I find that the plaintiff has established negligence and breach of statutory duty against the defendants.  I also find that the deceased by his own negligence contributed to the happening of the accident which ultimately caused his death.

(a) Negligence

19.Taken together the following matters constitute negligence on the part of the defendants.  I find that the operator was not trained to check all around the carrier on every occasion regardless of the direction in which it was about to travel, to ensure that it was safe to move.  On this occasion the operator did not check at the front of the carrier before he started to move it.  Either the operator himself or an extra worker should have established that the area of the blind spot was free of any obstructions prior to moving the carrier.

20.The seat at the front of the carrier could have and should have been removed from the carrier.  Such a task could have been easily done.  Bearing in mind that workers on site had been instructed not to sit on the seat there was no reason to have it attached to the carrier at any time.  Alternatively, tape or rope should have been put around the seat making it impossible for anybody to sit on it.

21.Having seen two workers in the close vicinity of the carrier and the seat at the front of the carrier a very short time before the carrier started to reverse the operator should have checked where they had gone before starting to move heavy machinery. It was reasonably foreseeable that they had gone somewhere in the blind spot and thereby into a position of potential danger.

22.No indication by sound, signal or otherwise was made to indicate that the carrier was about to move.

23.In starting to move the carrier when he did so, the operator’s conduct fell short of the standard expected of a reasonably competent operator of heavy machinery.

(b) Breach of statutory duty

24.I am satisfied that in the context of this case when machinery the size of this particular carrier is moving by virtue of power supplied by a separate power unit which is itself controlled by a remote control device in the hands of a nearby operator the prevailing conditions constitute ‘hazardous conditions’ within the meaning of Regulation 38A(3) of the Construction Sites (Safety) Regulations, Cap. 59.  Causing or permitting the deceased to gain access to such a site is therefore in breach of this Regulation.

25.Further, matters above referred to under the heading of ‘negligence’ are also capable of constituting breaches of sections 6(1) and 7 of the Occupational Safety and Health Ordinance, Cap. 509 which provide for a worker’s safety at work and the safety of the place where he works.

(c) Contributory negligence

26.The deceased must, just before the carrier moved, have decided to sit on the seat. I am satisfied that in the short time he had worked on site he had attended induction and safety meetings at which instructions not to sit on the seat at the front of the carrier would have been given.  Having sat on it, it was his misfortune that the carrier moved backwards not forwards.  His conduct must constitute some negligence on his part. 

27.Had there been no breaches of statutory duty I would have assessed the contributory negligence at one-third.  In the circumstances however I think it appropriate to assess the contributory negligence against the deceased less severely, namely at one quarter.  The principles discussed in Mullard v Ben Line Steamers (C.A.) [1948] 1 WLR at p.1417 apply :

“ More difficult, however, is the question of apportionment. When considering the approach of a court to the questions of whether an employee has been guilty of contributory negligence, Lord Tucker, in a much-cited speech in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627, said, on the issue of liability, at p. 648 :

‘in Factory Act cases the purpose of imposing the absolute obligation is to protect the workman against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute.’

Again, Sellers L.J. in the later case of Quintas v. National Smelting Co. Ltd. [1961] 1 W.L.R. 401, said, at p. 408 :

‘It has often been held that there is a high responsibility on a defendant who fails to comply with his statutory duty, which is absolute and has penal sanctions. A workman is not to be judged so severely.’

To my mind, as indeed Mr. Forrest conceded, the principle enunciated in the passages cited applies not only to assessing the question of liability—in other words, whether a man is negligent—but also to assessing culpability—in other words, how one apportions blame as between a plaintiff and a defendant, even if a plaintiff has been held to overstep the boundary between inadvertence and negligence.

Here, as already stated, the plaintiff did overstep that boundary as he was going through the aperture. He should have realized the risk earlier. He should have paused and should not have gone on. What he did, however, when stepping from a lighted into a dark compartment, with all the difficulties that can ensue when one goes from one state of light to another, was a momentary error, not to be judged too harshly when balanced against the defendants’ flagrant and continuous breach of statutory duty. What happened was indeed exactly of the nature intended to be guarded against by the precautions prescribed by the regulations; and when a defendant’s liability stems from such a breach the courts must be careful not to emasculate those regulations by the side-wind of apportionment. Moreover, the more culpable and continuing the breach of the regulation, the higher the percentage of blame that must fall on the defendant.”

DAMAGES

28.There are six heads of damages to be considered.

(i) Pain suffering and loss of amenity (PSLA)

29.The defence submit $50,000 would be appropriate under this heading because the deceased was unconscious for much of the time between the accident and his death 25 days later.  The plaintiffs seek $200,000.

30.The medical evidence does not give a clear picture of how long the deceased was unconscious and what was his level of consciousness when not unconscious.  The accident itself must have been terrifying and the pain suffered considerable. The 1^st plaintiff visited him constantly and gave some evidence of her ability to talk to him and comfort him when he was not unconscious.  Whilst in this state of uncertainty and semi consciousness he was taken to the operating theatre six times.  I consider $150,000 to be a fair award in all the circumstances.

(ii) Bereavement

31.This has been agreed at $150,000.

(iii) Loss of dependency

32.The deceased and his wife came to Hong Kong from Nepal in 1996.  Their four children joined them two years later aged 14, 12, 10 and 8 at the time.

33.At the time of the accident he was 44 years old and the children were 21, 19, 17 and 15.

34.His earnings at the time of his death were approximately $13,300 a month.  His wife also worked from time to time.  At the time of the trial, for example, she was earning $7,000 a month but said that this employment was due to end in a month’s time.  The 1^st plaintiff’s evidence was, briefly, that she was given $6,000 a month by the deceased from his earnings.  Their primary focus, as far as finances were concerned, was to provide as good an education as possible for their children.  From time to time he gave her extra money for specific purposes but no examples were given.  He also sent $3,000 a month to other family members, such as brothers and sisters, in Nepal to assist with their respective families.

35.When calculating the value of the dependency Ms Pinto and Mr Sakhrani take different approaches.  Mr Sakhrani proposed a detailed approach.  Each child’s educational progress, work history and living accommodation was considered and to a lesser degree so were the similar circumstances of the relatives in Nepal.  A figure was proposed to represent the proportion of the wife’s dependency which would have been spent on her husband before he died. Adjustments were made for periods when he might have been out of work on visiting family in Nepal.  Mr Sakhrani’s final figures were, in the court’s opinion, unrealistically low.

36.Ms Pinto adopted a simpler method.  She firstly observed that some English authorities favoured the approach of simply taking, as a starting point, the deceased’s monthly income and reducing it by say, 25%, to reflect the amount which would have been spent on himself.  Whenever possible a straightforward and fair approach should be preferred whilst also following the principles set by Seagroatt J in Tsang Mei Ying v Lam Pak Chiu [1999] 3 HKC 59 :

“ (1) The starting point in assessing dependency was to calculate the value of dependency as at the date of death, usually as a percentage of the income of the deceased. It was then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency was to set out item by item where possible, the value annually (or monthly) of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit of the deceased. The modern practice was to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. Harris v Empress Motors Ltd [1984] 1 WLR 212 and Owen v Martin & Anor (Court of Appeal, 15 April 1992, unreported, (1992) PIQR 151) (at 60I‑61I).

(2) It was not appropriate to calculate dependency on a simple equal mathematical division amongst all dependents of the sums given by a husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This was a wholly artificial approach and was a practice to be deprecated. It was not conducive to a calculation which was fair to either party.”

37.The family in the present case was a hard working and close family.  They had come to Hong Kong to improve their circumstances, to provide a better life and education for the children and to support members of the extended family back in Nepal. 

38.The courts approach will be similar to that proposed by Ms Pinto.  $6,000 a month is the amount which was no longer provided to the 1^st plaintiff as “housekeeping”.  I see no need to reduce it to reflect the deceased’s share of the expenses because (a) it is only about 50% of his earnings (b) most household expenses, except his food, would have been incurred in any event (c) I believe the 50% “housekeeping” was on the low side because he wanted to send money to Nepal on a regular basis and (d) he sometimes did give more than $6,000.  If a reduction were made to the $6,000 it would result in a figure that did not fairly reflect the family’s true circumstances.  Further, taking such a starting point renders it unnecessary to embark on a detailed and individualized analysis of each family member’s dependency which, in any event, is an artificial approach.  Taking a broad view I think therefore that the unadjusted figure of $6,000 a month is a fair starting point.

39.In addition $3,000 should be added.  I regard the family ethic to be strong in this case and the deceased would have continued with this expense.  It is not appropriate to analyse when and to what extent the need for support in Nepal might have varied in the future.  The deceased’s sense of responsibility for his family in Nepal is unlikely to have diminished.  Families tend to get larger rather than smaller.  I am satisfied that this commitment would have continued.  The total dependency is therefore $9,000 which represents approximately two-thirds of his gross income.

40.With that figure it is now necessary to calculate the multiplier, the pre-trial loss and the post-trial loss.

(a) Multiplier

41.The difference between the parties on this issue is 15 years and 10 years.

42.Ms Pinto’s figure of 15 years is based on 13 years for a man retiring at 65 plus two more for a man who would have wanted to work on to 70, albeit at a lower wage, and would have succeeded in doing so.  I regard the final two years as too speculative but I agree with the 13 years.

(b) Pre-trial

43.67 months have passed since the accident.  (That in itself is worthy of critical comment.  No explanation for the plaintiff’s long wait was given).

67 x $9,000 = $603,000.

(c) Post-trial (based on 13 years)

44.The calculation is as follows :

156 x $9,000 = $1,404,000

Less pre-trial = 603,000

$801,000

(iv) Loss of accumulation of wealth

45.I am satisfied that the deceased would have had sufficient income to make modest savings.  I award $100,000.

(v) Loss of services

46.This is agreed at $30,000.

(vi) Special damages

47.This is agreed at $37,505.

The total sum is :

(i)	$150,000
(ii)	$150,000
(iii)	$1,404,000
(iv)	$100,000
(v)	$30,000
(vi)	$37,505
	$1,871,505
Less 25% contributory negligence	$1,403,629
Less EC payment	$935,908
	$467,721

48.There will be judgment for the plaintiffs in the sum of $467,721.  This calculation does not take account of any interest considerations upon which no submissions have been made.  The legal representatives indicated that they should be able to agree on interest

matters.

49.There will also be a costs order nisi in favour of the plaintiff to be taxed if not agreed.

Ms Josephine Pinto, instructed by Messrs Krishnan & Tsang, for the 1^st and 2^nd Plaintiffs

Mr Ashok Sakhrani, instructed by Messrs Deacons, for the 1^st, 2^nd and 3^rd Defendants