Sit Loi Sang v. C & H Engineering Co Ltd and Another
|
HCPI 637/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 637 OF 2009 ------------------------
------------------------
------------------------- J U D G M E N T ------------------------- BACKGROUND 1.On 14 December 2006, the plaintiff was seriously injured in a fire which broke out inside a modified container (“Container”) located within a construction site at No 59, Shui Chuen Au Street, Shui Chuen O, Shatin (“Site”). He claims damages for the injuries he has suffered as a result. 2.The 2nd defendant was the main contractor of the Site at the material time. 3.The 1st defendant was a sub‑contractor of the 2nd defendant. The 1st defendant admits that the plaintiff was its employee, although its case at trial is that the fire occurred on the plaintiff’s first day at the Site and before he formally started work. The plaintiff’s case is that he had been working at the Site since around early November 2006. 4.A number of material facts are undisputed.
THE ACCIDENT 5.The crux of the issue between the parties is how the accident happened. 6.The plaintiff gave three different versions of how it took place. The plaintiff’s pleaded case 7.The plaintiff’s pleaded case is that he had been working at the Site since early November 2006. He was working under a Mr Lee Cheong Loi (“Mr Lee”), a supervisor employed by the 1st defendant. 8.According to the plaintiff, his job on the Site was to make explosives. The plaintiff’s witness statement explained how he made the explosives. This was supplemented by demonstration in the course of his evidence in chief.
9.The plaintiff claims that he had been making such explosives from August to October 2006 at a construction site in Macau, under a Mr Wong Ki Leung who was working for the 1st defendant. According to him, it was at the Macau construction site that he was instructed to make the explosives in the manner that I have just described. At first he did not know what the tubes were for, but later on he found out when he saw how the explosives were used at the Macau site for blasting rocks. 10.The plaintiff’s work in Macau came to an end when he, together with his friends Mr Fong Kwong Ming (“Mr Fong”) and Mr Poon Kwong Chung (“Mr Poon”) (both of whom gave evidence on the plaintiff’s behalf) and a number of other workers, were arrested by the Macanese authorities for working there without immigration permission. 11.After returning to Hong Kong, in early November 2006 the plaintiff joined Mr Lee to work at the Site. He was instructed to make the explosives inside the Container. This was his primary task on the Site. According to the plaintiff, the explosives were not used at the Site; they were taken away by car but the plaintiff did not know where. 12.The plaintiff says that at the time of the accident, there was a female co‑worker Mdm Choi Tsin Ngor (“Mdm Choi”) who was working with him inside the Container. Mdm Choi was also making the explosives at the time. The plaintiff said that just before the fire, Mdm Choi’s mobile phone rang, and when she got up to answer the phone, the Mixture in front of him suddenly burst into flames. It was a big and terrifying fire. He instinctively raised his arms in front of his face. His head and his clothing also caught fire. 13.The plaintiff and Mdm Choi immediately ran out from the Container, and Mdm Choi helped him to remove his top which was burning. By that time the sleeves had already been burnt away. He himself removed the burning jeans he was wearing. 14.The two of them went to the Site office, which was another container, nearby. An ambulance was summoned and took the plaintiff to the hospital. Version 2 – Hiking 15.In terms of time, this was the earliest version. 16.The plaintiff told the paramedics attending him at the Site that he was hiking nearby and was injured when the fire caught him. This version was recorded in the contemporaneous medical reports. 17.There is no dispute that this version was untrue and the plaintiff was in fact on the Site as a worker. 18.According to the plaintiff, he had told the paramedics that he was a hiker because a supervisor, who was known to him as “Ah Day”, instructed him to say so. The plaintiff said that immediately after he and Mdm Choi ran out from the Container, Mdm Choi made a phone call to “Ah Day” and passed the phone to him. Over the phone, Ah Day told the plaintiff to say that he was hiking nearby at the time. He did not question Ah Day and did as he was told. 19.According to the plaintiff, he had met Ah Day since he attended the Site for work in early November 2006, and had seen Ah Day at the Site a number of times. Ah Day gave him a lift on one occasion. He knew Ah Day was a supervisor of the 1st defendant, although he did not work under Ah Day and did not know what was Ah Day’s area of responsibility. The defendants deny that there was this person “Ah Day”. Version 3 – Air‑Conditioner 20.The third version of events given by the plaintiff was in a statement he gave on 30 March 2007 to the loss adjuster acting for the defendants’ insurers. 21.In that statement, given in his home, the plaintiff claimed that the accident took place on the first day he started work at the Site. He had met Mr Lee on the previous day and was instructed by Mr Lee to go to the Site for an interview. Mr Lee had instructed him beforehand that if he (Mr Lee) had not yet arrived, he should clean up the place while waiting for Mr Lee. 22.The plaintiff thus attended the Site the following day as agreed. Since Mr Lee was not there when he arrived, he did as he was told and began to clean up the Container. While he was doing so, the air conditioner inside the Container suddenly started to catch fire. He attempted to put out the fire with some rags he had found inside the Container, but the fire grew bigger and got out of control. The sleeves of his top caught fire and he escaped from the Container and was later taken to hospital by ambulance. 23.The plaintiff accepted that he did tell the loss adjusters this (chronologically second) version of events. He explained that boss of the 1st defendant, Mr Tang Man On (“Mr Tang”) and Mr Lee had told him to say this. DEFENDANTS’ CASE 24.The defendants strongly deny liability. Their case is that there was no explosive‑related activity at the Site. None of the projects that the 1st defendant had been working on at the material time, including the Site, required use or handling of any explosives and it had no approval for such work. The 1st defendant never had projects outside Hong Kong, let alone a project in Macau which required the use of explosives. 25.However, the defendants do not have any positive case as to how the fire broke out or how the plaintiff got injured. The defendants claim that the fire broke out when the plaintiff was alone, and they did not know what he was doing at the time. The Container was used as a staff storage/resting area and did not contain any combustible material. 26.The defendant’s version of events is, in essence, as follows. The plaintiff was at the Site because he had been told by Mr Lee, who was working for the 1st defendant, to attend the Site on the day of the accident for an interview. The defendants say that no one from the defendants knew what had happened and they had no idea how or why the fire broke out. 27.Specifically, the defendants deny that Mdm Choi was making explosives with the plaintiff as alleged by him. In this connection, the defendants rely heavily on Mdm Choi’s police statement given on the day of the accident, in which she stated that she was not with the plaintiff, and she was not in the Container, when the fire broke out. However, Mdm Choi has not provided any witness statement for this case and did not give evidence. The defendants have not explained her absence. 28.The defendants also rely on the letter dated 7 March 2011 from the Fire Services Department, who confirmed that, although the fire was believed to be of “Suspicious Circumstances” and categorised as “Undetermined” pending further investigation by the police, there was “no evidence to support that the fire was caused by ‘the chemical ammonium nitrate, or the mixture of ammonium nitrate and sugar.’” 29.The defendants naturally submit that the plaintiff’s case is incredible, given the different versions of events given by him as well as the lack of any concrete objective evidence of the presence of ammonium nitrate or other combustible substance. 30.The defendants also called Mr Tang, Mr Lee and Miss Tang Pui Ki (“Miss Tang”) to give evidence in support of their contention that the plaintiff had not been working at the Site before 14 December 2006. ISSUES 31.Mr Osmond Lam (counsel for the plaintiff) and Mr Kumar Ramanathan SC (appearing for the defendants) agreed that the main issue that I have to decide is the cause of the fire. 32.In view of the different versions of events given by the plaintiff, the defendants strongly dispute liability and challenge the credibility of the plaintiff’s case. Mr Ramanathan also emphasised, and I accept, that the claim must stand or fall on the basis of plaintiff’s pleaded case; and if I am not satisfied that the fire occurred in the manner pleaded and that the occurrence was a result of a breach of duty on the defendants’ part, the claim must fail. 33.As may be expected, a number of collateral issues were canvassed in the course of the trial which do not go directly to that central issue but mainly to credibility. This is not to undermine the importance of these issues; in a case like this credibility is of considerable importance. 34.These collateral issues (or “peripheral issues” as Mr Ramanathan puts them) include:
DISCUSSION Plaintiff’s employment 35.I start from the undisputed facts. The defendants admit in their Defence that the plaintiff was its employee at the time of the accident. 36.The 1st defendant also acknowledged this fact when it filed the Form 2 dated 30 December 2006 with the Labour Department. The defendants were able to state in this Form the personal particulars of the plaintiff including his identity card number and date of birth. But the defendants have not been able to explain where the information came from. 37.There is no dispute that the plaintiff’s identity card was lost in the fire and no one from the defendants had talked to him (who was still in hospital, probably still comatised or in the intensive care unit) by that time. Nor is there any evidence that anyone from the defendants had contacted his family members. 38.Moreover, in this Form 2, the defendants stated that the plaintiff’s average working days per month was 26. This seems strange when the defendants claim that the plaintiff was injured on his first day of work. 39.Mr Tang, who was the boss of the 1st defendant and signed the Form, was unable to explain how the defendants were able to obtain the plaintiff’s particulars. Miss Tang, who is Mr Tang’s daughter and who was responsible for the accounts on behalf of the 1st defendant, was not able to assist either. 40.Turning to the reason why the plaintiff was inside the Container at the time of the fire, the defendants contend that the plaintiff was told to go the Site for an interview. Mr Lee so stated in his witness statement. However, Mr Lee was unable to say whom the plaintiff was supposed to see. Mr Tang, who was the boss of the 1st defendant, said in evidence that he had not been told that anyone was attending the Site for an interview, nor indeed what interview. 41.When questioned why the 1st defendant accepted that the plaintiff was its employee, when on its case he was only there for an interview, Mr Tang’s explanation was that he had been told by the main contractor (ie the 2nd defendant) that that was the case. But no one from the 2nd defendant gave evidence. When questioned who of the 2nd defendant had told him that, and when did that happen, Mr Tang vaguely said that it would probably have been the safety officer but he could not remember. I find his explanation difficult to accept. 42.I also note that in a Notification of Change to the Labour Department dated 30 January 2008, again signed by Mr Tang, the 1st defendant stated that the plaintiff’s earnings per month immediately before the accident was $14,300 (ie $550 for 26 days), while the average monthly earnings of the plaintiff for the 12 months before the accident was “about $15,000”. I find it strange that the 1st defendant would provide such information if the plaintiff had not been working for the 1st defendant before the date of the accident. 43.In the course of the police enquiry into the fire, the 2nd defendant provided a photograph taken on 8 December 2006 during a “Reverse Driving Incident Emergency Drill”. The plaintiff was seen in the photograph, wearing a helmet and reflective clothing, together with a number of other workers listening to the 2nd defendant’s instructor. 44.The defendants are unable to offer any satisfactory explanation as to why the plaintiff took part in the safety drill on 8 December 2006 if he was not already working at the Site. The attendance record for the drill was produced but the plaintiff’s name did not appear on it. That may be so, but it does not negate the fact that the plaintiff was present. 45.The plaintiff claims that he was present at the drill because he was asked to “make up the numbers”, when his work did not involve vehicle manoeuvres at all. This is a possible explanation although I do not think I need to make any specific finding on why the attendance list did not include the plaintiff. The fact remains that he was present at the drill as a worker. 46.The defendants also rely on the lack of any record of the plaintiff being a worker at the Site. The plaintiff claims that Miss Tang had told him a few months after the accident that his records (such as copy of his “safety card”) had been destroyed. Miss Tang and the defendants deny the meeting and the alleged destruction of records. I do not think there is sufficient evidence to enable me to make a finding on this point, nor is such a finding necessary. 47.Another episode relating to the plaintiff’s employment is the payment to him of $4,400 on 12 December 2006 by the 1st defendant’s cheque. The cheque was in a series of cheques made out on 12 December 2006 to the 1st defendant’s workers and there is evidence that it was cashed on 13 December 2006. The plaintiff claims that the cheque was for payment of his wages for part of November 2006. 48.The defendants rely on the cheque stub to argue that the cheque had nothing to do with the plaintiff’s employment. The description written on the cheque stub was “10下 (澳門)”. The stub also had written on it the words “for account of Lai” (拉數) – Lai (拉) is Mr Lee’s nickname. The defendants claim that this cheque was given to the plaintiff at Mr Lee’s request to pay for an amount outstanding in respect of the plaintiff’s previous work in Macau, which had nothing to do with the 1st defendant. 49.Mr Tang said in evidence that Mr Lee had asked him to help him (Mr Lee) pay the plaintiff this outstanding sum because he was in financial difficulties at the time. However, Mr Tang was unable to give a credible reason why he had decided to use the 1st defendant to pay the plaintiff on behalf of Mr Lee, when he admittedly had other (including personal) accounts. Nor was Miss Tang, who drew the cheque, able to explain why this cheque happened to appear in a series of cheques drawn in favour of the 1st defendant’s employees. She could not explain why she wrote “10下” if the payment was unconnected with the 1st defendant. She claimed that she might have been told by Mr Tang as to how to record the payment, but Mr Tang did not say that in his evidence. 50.The plaintiff argued that the words “Macau” (“(澳門)”) were written over “11 upper” (11上) which was originally written, indicated that the cheque was for the second half of October/first half of November wage period. 51.In this connection, I notice that the left bracket of “(澳門)” appears to have been written in two strokes, which may suggest that there was an attempt to write a bracket on top of “1”. Additionally, there appears to be a horizontal stroke below the left side vertical stroke of the character “門” which was crossed‑out by zigzags. It would be an unusual mistake when one writes the character “門”. 52.However, I warn myself against “playing expert” without expert evidence on the matter. I think it is not necessary to make a finding of deliberate overwriting and I refrain from doing so. Nevertheless it seems to me that the defendants’ explanation of this cheque and the writing on the stub questionable, and I proceed on the basis that it is unclear on the evidence what was the purpose of this cheque. Circumstances of fire 53.It is undisputed that the fire was intense. The plaintiff was very seriously burnt within a very short time. 54.Miss Tang in her witness statement as well as oral testimony confirmed that the fire was very intense. She said that she heard a noise while working in her office, which was located inside another container nearby. She felt the container shaking slightly, which may suggest that there was some sort of explosion. When she got out of her container to take a look, she saw fire and lots of smoke billowing out from the Container. She was still in shock when her colleague Mr Ip took her away and they escaped down a slope nearby. 55.The Fire Service Department found the circumstances of the fire unusual, although the cause remained undetermined. The police arrested Mr Tang, Mr Lee and Mdm Choi but I understand that they were released without charge. 56.The defendants’ evidence is that there was nothing combustible inside the Container. I find that difficult to accept given the extent of the fire. Of some significance is the evidence of the owner of the Container, Mr Ho Lau Man, who visited the Site and inspected the Container after it had been placed there about two months before the accident. He mentioned in his police statement that he saw (amongst other things) PVC tubes, wires and “two to three packs of substance marked sugar” inside the Container when he visited it. The presence of packs of sugar inside the Container would be unusual. The defendants did not call Mr Ho to give evidence, nor did they attempt to explain why there were packs of sugar inside the Container, which, of course, is consistent with the plaintiff’s claim. 57.I do not find the Fire Service Department’s letter particularly helpful. There is no evidence before me as to whether any residue of the Mixture would have remained or detectable after the fire. Indeed, there is no positive evidence that the white powder was ammonium nitrate: it is the plaintiff’s belief from subsequent enquiries that the substance was probably ammonium nitrate, but there is no evidence that it is the only substance which could have been used. Hence the confirmation that there was no evidence of presence of ammonium nitrate does not negate the plaintiff’s case that he was making explosives inside the Container. Plaintiff’s evidence 58.The plaintiff convincingly demonstrated in Court how to make the explosives. There can be no doubt that he had been making them before, and I find that that was what he was doing when he was working in Macau. It is unnecessary to make any positive finding as to whether he was working for the 1st defendant in Macau. 59.I bear in mind the different versions given by the plaintiff at various stages. I find the Hiker version difficult to explain other than as claimed by the plaintiff. Regrettably I am not helped by the absence of Mdm Choi. On the whole, I accept the plaintiff’s explanation as to why he gave this version to the paramedics. 60.There is no suggestion by either side that the Air‑Conditioner version was true. The question really is why the plaintiff chose to tell the loss adjuster this version of events. He claimed that he was told/coaxed into saying this. Given that the authorities were investigating into the fire, there was reason why the 1st defendant would not want the plaintiff to tell the loss adjuster the true version of events. The defendants, as one would expect, deny that. 61.I can see no logical reason why the plaintiff should deliberately tell the loss adjuster this version and none has been suggested. The plaintiff’s explanation, that he gave this version as he was instructed at a time when he was receiving employee compensation and depending on Mr Lee/the 1st defendant for his livelihood, and when he was expecting further compensation for his injuries, is in my view credible. 62.The same explanation would be consistent with the plaintiff’s refusal to assist the police. I find it extremely unlikely that the plaintiff would of his own volition refuse to assist the police, but for the fact that he would not want to cause any trouble to the 1st defendant, on whom he depended for his livelihood and compensation. CONCLUSION AND FINDING ON CAUSE OF FIRE AND PLAINTIFF’S INJURIES 63.Taking into account all the evidence, the more salient of which I have set out above, I am satisfied on the balance of probabilities and find that the plaintiff was injured while he was working for the 1st defendant at the Site making explosives as claimed. The Mixture caught fire and caused him the serious injuries he has suffered. 64.Mr Ramanathan very fairly does not contend that if I hold in favour of the plaintiff on the cause of the fire, there was still no breach of duty on the part of the defendants. The plaintiff’s claim therefore succeeds. 65.In the circumstances, it is unnecessary to come to a firm view on the plaintiff’s alternative case of res ipsa loquitur. Nevertheless, I would observe that given the defendants’ admission that the plaintiff was the 1st defendant’s employee, and the unexplained eruption of what was on any account an unusual and very intense fire within the Container, there is much to be said that there is a strong prima facie case of failure to maintain a safe place or system of work on the part of the defendants. QUANTUM 66.I turn to quantum. I need not repeat the plaintiff’s injuries and treatment in detail here. The only issue that I need to decide is the average number of days of work per month for the purpose of determining loss of earnings. 67.I have already mentioned that the defendants stated in the Form 2 and the Notification of Change that the plaintiff worked for an average of 26 days per month at the time of the accident at the rate of $550 per day. This is the basis of the plaintiff’s claim. 68.The plaintiff’s evidence in cross‑examination is that work was erratically since July 2005 and he had been unemployed for the first 6 months of 2006. He accepted that he went to work in Macau because of lack of work in Hong Kong. In re‑examination, he explained that he was unemployment in the first half of 2006 because he was ill over that period of time. 69.Additionally, Mr Fong and Mr Poon accepted in cross‑examination that they were unemployed over similar periods as well. 70.Mr Ramanathan accordingly submits that the evidence is consistent with a general lack of work in the construction industry. He submitted that the average number of days for which the plaintiff would have worked had there not been the fire would have been much lower than 26. He proposed 15. 71.I am unable to agree with Mr Ramanathan. The evidence is that the plaintiff was fully employed since at least August 2006 up to the time of the fire. The defendants themselves accepted that in the formal documents supplied to the Labour Department, and that was the basis on which employee compensation had been paid to the plaintiff. Of course the construction industry may have ups and downs. But there is no evidence to suggest that the plaintiff would not have continued to be fully employment had he not been injured. 72.I further accept the plaintiff’s evidence that he had not been able to find work after his recovery. I need not recount the evidence here, suffice to say that I find it credible. 73.The plaintiff has been employed since October 2011 at $8,800 per month. The plaintiff explains that he was only able to get the job through the generosity of a friend. I accept this evidence. Pre‑trial loss of earnings 74.On the basis of the evidence, I find that the plaintiff would have continued to be fully employed had he not been injured. However, the nature of his work was such that he would probably not be able to maintain a 26‑day month all the time. I would think 22 days on average would be about right. 75.The defendants accept that the plaintiff would be out of work during the period of sick leave (14 December 2006 to 1 June 2008) plus six months thereafter until the end of 2008. Thus his loss of earnings during this period would be $550 x 22 x 24 = $290,400. 76.From January 2009 to September 2011 the plaintiff was unable to find work. During this period, his loss of earnings would be $550 x 22 x 33 = $399,300. 77.From October 2011 to the present the plaintiff has been earning $8,800 per month. Taking 31 August 2012 as the cut‑off date, the loss of earnings during this period would be [($550 x 22) - $8,800] x 11 = $36,300. 78.Accordingly, total pre‑trial loss of earnings is $290,400 + $399,300 +36,300 = $726,000. Future loss of earnings 79.The parties agree that the multiplier should be 6. Therefore future loss of earnings is [($550 x 22) - $8,800] x 12 x 6 = $237,600. Loss of earning capacity 80.Given the plaintiff’s current conditions, it is not difficult to see that he would be extremely vulnerable if he, for whatever reason, were not able to continue his current employment. I am therefore persuaded that a general award for loss of earning capacity should be made. 81.Mr Ramanathan suggests $50,000. He has not explained why that figure is proposed. The plaintiff claims $184,000 on the basis of the plaintiff being out of the labour market for 1 year. I agree with this basis and would make an award of $150,000 on the basis of a 22‑day month and rounded up. RESULT 82.Total quantum is as follows:
83.Obviously, employees compensation already received will have to be deducted. Interest for PSLA at 2% from date of writ and at half judgment rate from date of accident on special damages are agreed. 84.I also make a costs order nisi that the costs of the action be to the plaintiff, to be taxed if not agreed. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations. 85.Finally, I thank counsel for their valuable assistance.
Mr Osmond Lam, instructed by Lau & Chan (assigned by Director of Legal Aid), for the plaintiff Mr Kumar Ramanathan SC, instructed by Leung & Lau, for the 1st and 2nd defendants | ||||||||||||||||||||||||||||||||||||||||||