Yeung Hau Keung v. Yip Wang Kit t/a Hang Park Decoration Co and Another
Read the full judgment text of HCPI 691/2011 on BabelCite. This High Court CFI judgment was delivered on 7 May 2014.
1. This action arises out of an industrial accident which occurred on 8 May 2009 to the plaintiff in the course of work. He claims against the defendants in this action common law damages for personal injuries.
Cited by 3 cases · Cites 5 cases
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HCPI 691/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 691 OF 2011 ________________
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_______________ J U D G M E N T _______________ INTRODUCTION 1.This action arises out of an industrial accident which occurred on 8 May 2009 to the plaintiff in the course of work. He claims against the defendants in this action common law damages for personal injuries. 2.At the material time of the accident, the plaintiff, a decoration worker, was employed by the 1st defendant to work on the renovation of and/or the repair works at the G/F, M/F and 1/F of No 10 Bonham Strand, Hong Kong (“the Site”). When the plaintiff was using an “electric concrete breaker” to break up a concrete platform (“the Concrete Platform”) at the G/F staircase, an explosion and flashover occurred. As a result, the plaintiff sustained serious burn injuries. 3.The accident was investigated by the Labour Department as recorded in an Accident Report dated 24 August 2009. The accident was found to have been caused by the accidental damage of a 380V live electricity supply cable embedded in the concrete when the plaintiff was using the electric concrete breaker to break the Concrete Platform at the staircase entrance. 4.The 2nd defendant is and was at all material times the registered owner of the Site, having purchased the same in November 2008. The 2nd defendant engaged the 1st defendant to carry out the said renovation and/or repair works at the Site, including the removal of an old marble signboard at the G/F staircase entrance. The marble signboard sat on top of the Concrete Platform. 5.The 1st defendant has not taken any step in defence of the action, and was absent from all court hearings. Interlocutory Judgment on liability was entered in favour of the plaintiff against the 1st defendant on 9 March 2012. This is an assessment of damages hearing as against the 1st defendant. 6.As between the plaintiff and the 2nd defendant, both liability and quantum are in issue. 7.Trial of the related employees’ compensation claim in DCEC 386 of 2010 took place in November 2012. Judgment was delivered on 13 November 2012 awarding compensation in the sum of $690,216.48 to the plaintiff. The plaintiff has not to date received any of the compensation awarded. THE PLAINTIFF’S CASE AGAINST THE 2nd DEFENDANT ON LIABILITY 8.According to the plaintiff, the 2nd defendant, through its staff, a Madam Adeline Wong (“Madam Wong”), had actual knowledge of (i) the 1st defendant being instructed to demolish the marble signboard and the Concrete Platform; (ii) existence of cables/wires/pipes around the marble signboard and into the Concrete Platform; (iii) she ought to have known that these include electric cable(s); and (iv) there was a foreseeable risk of serious injuries to the worker who demolished the Concrete Platform. 9.In those circumstances, the plaintiff says that he (the worker who was engaged in the demolition work) was the 2nd defendant’s “neighbour” in law: he was a person who would be so closely and directly affected by the 2nd defendant’s act that the 2nd defendant ought reasonably to have him in contemplation as being so affected when the 2nd defendant was directing its mind to the acts or omissions which are called into question. 10.The plaintiff further submitted that the foreseeability of serious injuries resulting from the inherently dangerous work of demolishing the Concrete Platform in the circumstances, the proximity between the 2nd defendant and the plaintiff, with the 2nd defendant’s right to inspect the 1st defendant’s works on the Site, established a duty of care owed by the 2nd defendant to the plaintiff. 2nd DEFENDANT’S FACTUAL CASE AGAINST THE PLAINTIFF 11.Whilst agreeing that it was the registered owner of the Site, the 2nd defendant raised the following factual issues: -
EVALUATION OF EVIDENCE 12.From the foregoing, it is apparent that the only factual issue before this court that is relevant and central to the cause of action pursued by the plaintiff at trial is this: had the 2nd defendant asked the 1st defendant to remove the Concrete Platform as part of the demolition works in question? If this key factual issue is resolved against the plaintiff, there is simply no basis to find any duty of care owed to him by the 2nd defendant (see: paragraph 8 above). 13.In this regard, the 2nd defendant relies on the following unchallenged evidence to support its contention that it did not ask, and would never have asked, the 1st defendant to remove the Concrete Platform:
14.The Concrete Platform was part of the common area of the Building. It simply did not belong to the 2nd defendant. This is apparent from the Ground Floor Plan of the shop premises owned by the 2nd defendant, and the undisputed evidence of Madam Wong and Mr Timmy Chau (“Mr Chau”), the manager employed by the management company in charge of the Building at the material time. The Concrete Platform was used to house the common facilities, viz. the electric and telephone cables. The Concrete Platform was not removed (although it was trimmed down to make room for the new fire safety system) even during the renovation of the Building in 2010. The plaintiff’s theory that the 2nd defendant had required its removal to “straighten out” (“拉直”) the staircase in order to make it look better is unsupported by any evidence. Even though the Concrete Platform had no structural significance to the Building, it nevertheless served a useful function and it is quite inconceivable that any individual owner of the Building would have contemplated its removal. 15.Further, under cross-examination, Madam Wong testified that after the accident she immediately contacted the 1st defendant to try to find out why the accident happened. The 1st defendant replied that he did not know why the plaintiff would remove the Concrete Platform. It was not put to Madam Wong that this conversation did not happen or that her recollection of what was said by the 1st defendant was incorrect. The reasonable inference to be drawn on the balance of probabilities is that even after the accident, neither the 1st defendant nor the 2nd defendant had any clue as to why the plaintiff would attempt to remove the Concrete Platform. 16.Further still, the Buildings Department’s removal order only required the removal of, among other items, the “show windows” at the G/F staircase. The removal order did not touch upon the removal of the Concrete Platform at all. Madam Wong’s undisputed evidence is that all the quotations from the 1st defendant to the 2nd defendant have already been produced. In none of these quotations was the 1st defendant required to remove the Concrete Platform. The only quotation that relates to the staircase at the G/F is the one dated 30 April 2009 [page 139 of the Trial Bundle]. The plaintiff tried to suggest that “樓梯位” refers to the Concrete Platform, but it was repeatedly stressed by Madam Wong that it meant the display cabinet only (meaning the marble signboard as described by the plaintiff). She did not find it necessary to specify the display cabinet because it was what the parties understood. 17.Madam Wong also emphasised that the removal of the display cabinet was entirely incidental (“順手”) to the demolition works covered by the quotation because the 2nd defendant’s predecessor-in-title had put it in the common area of the Building. I agree with Mr Samuel Chan, counsel for the 2nd defendant, that it is inconceivable that Madam Wong would have further asked the 1st defendant to remove part of the common area of the Building (ie the Concrete Platform) without the authority of the IO, and notwithstanding that the entire Building was to be renovated. 18.The plaintiff tried to rely on a particular answer given by Madam Wong on 28 September 2010 in the Eastern Magistracy proceedings against the 1st defendant under regulation 47(1) of the Construction Sites (Safety) Regulations, Cap 59 to show that she had indeed asked the 1st defendant to remove the Concrete Platform. This part of the transcript must however be read in its proper context. Madam Wong was asked: “你同恆佰裝修公司嘅工程範圍係包唔包括清拆呢一嚿咁嘅磚頭或者石屎嘅物體?”, to which she answered: “…拆走嗰啲雲石嗰啲咁樣”. Bearing in mind it is also the plaintiff’s case that the area below the display cabinet was pasted (“黐上去”) with marble, I agree with Mr Samuel Chan that Madam Wong’s evidence in the Magistracy proceedings should be understood to meanthe marble affixed onto the Concrete Platform, but not the Concrete Platform itself. 19.Relevant to the central factual dispute is the issue of whether Mr Chau had heard the 1st defendant saying, shortly before the accident, that all the demolition works had been completed by the afternoon on 8 May 2009 and the 1st defendant and his employees were only there to clean up. The fact that the “side” roller-shutter gate had not been removed pursuant to the direction of the Buildings Department does not mean that the 1st defendant’s demolition works on the G/F had not been completed. As Madam Wong explained, the 2nd defendant had intended to submit building plans for lowering the elevated level of the ground floor of the shop premises which was eventually granted. This explains why at the time of the accident, the 2nd defendant had neither engaged the 1st defendant to remove the “side” roller-shutter gate nor reinstate the front entrance. 20.In cross-examination, Mr Chau testified that he understood the 1st defendant to be referring to the G/F, when the 1st defendant told him that the demolition works had been completed. This is because the works there involved the common area of the Building and that was what Mr Chau (as part of the management of the Building) would be concerned with. Mr Chau did not know whether the works at the M/F or 1/F had been completed, because he was not concerned with works carried out in privately owned areas of the Building. Madam Wong also confirmed that Mr Chau relayed the same conversation to her after the accident and she was adamant that it was so under cross-examination. 21.The plaintiff also tried to run the case that since the removal of the display cabinet had rendered the area around it unpresentable, the 2nd defendant must have also asked the 1st defendant to remove the Concrete Platform. This allegation must however be evaluated against the background of the intended renovation of the entire Building (eventually commenced in early 2010):
22.The intended major renovation was discussed at owners’ meetings before the accident and both Madam Wong and Mr Chau were present. The fact that this topic had been discussed at owners’ meetings and the common intention was to carry out the renovations was not challenged by the plaintiff. 23.Having carefully considered all the evidence on the factual matrix regarding the accident and the inherent plausibility of the respective cases of the parties, on the balance of probabilities, I find as a fact that the 2nd defendant had not asked the 1st defendant to remove the Concrete Platform as part of the demolition works in question. 24.As I have found against the factual case of the plaintiff for the reasons set out above, I hold that the plaintiff has failed to establish any duty of care owed to him by the 2nd defendant. QUANTUM 25.I proceed to assess the amount of damages payable by the 1st defendant to the plaintiff under the Interlocutory Judgment entered on 9 March 2012. 26.The plaintiff was born on 10 April 1974. He was aged 35 at the time of the accident on 8 May 2009. Injuries and treatment 27.As a result of the accident, the plaintiff suffered extensive burn injuries to many areas of his trunk and arms. He was admitted to the Accident & Emergency Department (“A&E”) of the Queen Mary Hospital (“QMH”), and was immediately transferred to the Burn Unit Ward of the Department of Surgery (“DS”) for further management. 28.Initial examination revealed that about 15% of the plaintiff’s body surface area was affected with second degree burns. Further examination revealed that he suffered from 23% total body surface area mixed superficial and deep dermal burns to his anterior and posterior trunk, as well as bilateral arms and forearms. He received conservative treatment of daily wound dressing and analgesics. He was hospitalised until 23 May 2009, ie just over two weeks, before he was discharged home. He continued to attend daily wound dressing at government clinics. 29.The wounds gradually healed but the plaintiff developed hypertrophic scars secondary to the burn injuries. He continued to attend follow-ups at the DS of QMH. The scars on his chest wall and left upper limb remained active and problematic. He was prescribed with pressure garment therapy. He also applied topical steroid creams to the wounds. The plaintiff was hospitalised again for a day on 10 October 2009. In around April 2011 to June 2011, he received intralesional steroid injections to treat the scars. 30.The plaintiff was granted sick leave from the day of the accident to 26 December 2011, ie about 31½ months. 31.Although the plaintiff was noted to have active hypertrophic scars when he was seen at the QMH’s specialist out-patient clinic on 14 June 2011, which were still present when he was seen by the single joint expert, Dr Daniel Lee, in June and November 2012, Dr Lee’s latest opinion was that the scars “should have improved with reduction of the symptoms” such as pain and itchiness. 32.The plaintiff was referred for “work hardening” program at the occupational therapy unit of QMH starting on 4 August 2009. Pressure garment therapy was given. He was assessed by occupational therapists at the QMH on 21 October 2009, 11 May 2011 and eventually on 29 February 2012. 33.During the last assessment on 29 February 2012, the plaintiff only complained of “mild” pain and itchiness over his scars and expressed that he would only put on his pressure garment at night. No abnormality in his range of motion was detected. The plaintiff was “confident to resume work” though he was unemployed. The occupational therapist in-charge of the case concluded that pressure garment therapy be “weaned off”. 34.The above recommendation was made by the occupational therapist about 2 months after the expiry of the plaintiff’s sick leave which ended on 26 December 2011. Assessment by the joint medical expert 35.On 4 June 2012 and 24 November 2012, the plaintiff was examined by Dr Daniel Lee, the medical expert jointly appointed by the plaintiff and the 2nd defendant. 36.Dr Lee gave, inter alia, the following opinion as set out in his report dated 30 November 2012: -
37.On the joint instructions of the plaintiff and the 2nd defendant dated 15 April 2013, Dr Lee was asked to prepare a supplemental report, in particular, on the question as to when the plaintiff could return to his previous job. 38.In his Supplementary Report dated 23 April 2013, Dr Lee stated in clear terms that the plaintiff’s scars and symptoms were expected to have improved by the date of the second report, and the plaintiff “should now be able to return to his previous job doing cement work, plastering work, carpentry and demolition of internal decoration” (original emphasis). Dr Lee did notqualify his latest opinion with any need to put on pressure garments. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”) 39.In support of his claim for PSLA, the plaintiff referred to the following cases: -
40.On the other hand, the 2nd defendant referred to the following cases as comparables: -
41.Taking into account the above cases cited to the court; the nature and extent of the plaintiff’s burn injuries and scarring; the fact that the plaintiff did not have to undergo any operation; that there is no permanent impairment to the function of his limbs; and that there is no suggestion or evidence of any psychological disability, I would assess the award of PSLA for this case at $350,000. PRE-TRIAL LOSS OF EARNINGS AND MPF BENEFITS 42.The plaintiff’s evidence on pre-accident earnings as stated in his witness statement is that he earned on average no less than $16,900 per month ($650 x 26 days) in the 12 months prior to the accident. 43.This is supplemented by his evidence given at trial as follows: he had been working as a plasterer for six to seven years since he came to Hong Kong in 2002. He worked on average 26 days a month. His daily wage was $600 to $700, plus $50 for meals. When working for the 1st defendant, he was paid $700 + $50 per day. Sometimes he worked more than one shift (“一工”) in a day. He worked for different employers. When work was not available from one employer, he would work for another. Sometimes he even worked for different employers in a day, ie one during the day and the other at night when overtime work was available. In the one year prior to the accident, he worked often for the 1st defendant (who paid him in cash). He normally only deposited money in his bank account when he received cheque payments. He kept cash payments for his use. 44.On the above evidence, I agree with Ms Phillis Loh, counsel for the plaintiff, that for the purpose of this assessment, average pre-accident monthly earnings should be taken to be: ($650 x 26 + $750 x 26)/2 = $18,200. 45.Sick leave granted to the plaintiff from 8 May 2009 to 26 December 2011 is accepted by Dr Lee to be reasonable. 46.The plaintiff made numerous attempts but without success to find light work after sick leave had expired in December 2011. He finally found light work towards the end of April 2012. He earned a daily wage of $400 (plus $50 for meals). He worked 15 days per month on average as there was no sufficient light work. Monthly earnings were therefore $6,750 ($450 x 15 days). As from January 2014, the daily wage was increased to $450, ie $500 per day inclusive of $50 for meals. He therefore currently earns $7,500 ($500 x 15 days) from the light work. 47.Pre-trial median residual monthly earnings (from April 2012 until now) are taken to be: ($6,750 + $7,500)/2 = $7,125. 48.The plaintiff’s evidence is that but for the accident, he would have become a “sifu” plasterer one or two years after the accident. His current daily wage would have become $1,000 to $1,200. 49.The increase in earnings in the past few years is supported by government statistics. The daily wage of a plasterer had increased from $823.10 in May 2009 to the most recent figure of $1,056.80 in September 2013, ie an increase of 28% in the past 4½ years. 50.Adopting the same percentage increase, the plaintiff’s notional current monthly earnings would have increased to $23,296 ($18,200 x 128%). Pre-trial monthly median earnings are therefore: $20,748 ($18,200 + $23,296/2). 51.I accept the opinion of Dr Lee that the plaintiff should by April 2013 be able to return to his previous job doing cement work, plastering work, carpentry and demolition of internal decoration. I hold that on the totality of the evidence, there is no medical or factual basis for him not to return to his pre-accident job thereafter, and there is no basis for the plaintiff to claim any loss of earnings beyond April 2013. 52.On the basis of the above, I would award the sum of $949,654 for pre-trial loss of earnings and MPF benefits, calculated as follows: -
FUTURE LOSS OF EARNINGS AND MPF BENEFITS 53.For the reasons stated in paragraph 51 above, I am not prepared to make any award under this head of loss. LOSS OF EARNING CAPACITY 54.I accept that although the plaintiff is able to return to his pre-accident job, his permanent scars and cosmetic deformity may to a certain degree affect his work capacity. The plaintiff may well be disadvantaged in the labour market and have difficulty in finding and retaining employment. In the circumstances, I accept that the sum of $150,000 is an appropriate award under this head. MISCELLANEOUS EXPENSES INCURRED AND PAID 55.I would award a total sum of $35,054 for miscellaneous expenses, made up as follows: -
CONCLUSION ON QUANTUM 56.I would assess the total amount of damages payable by the 1st defendant to the plaintiff as follows: -
INTEREST 57.Interest should be awarded at 2% per annum on general damages for PSLA from the date of writ until judgment. Interest on special damages should be awarded at half the judgement rate from the date of the accident to the date of judgment. ORDER 58.Failing on liability, I dismiss the plaintiff’s claim against the 2nd defendant in this action. 59.The amount of damages payable by the 1st defendant to the plaintiff under the Interlocutory Judgment entered on 9 March 2012 is assessed to be $794,491.52. The 1st defendant is to pay such sum together with interest as aforesaid 60.I see no reason why costs should not follow the event. Accordingly, I make the following order as to costs between the parties: -
61.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same. 62.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.
Ms Phillis L P Loh, instructed by Au Yeung, Cheng, Ho & Tin, for the plaintiff The 1st defendant was not represented and did not appear at the hearing Mr Samuel Chan, instructed by Hastings & Co, for the 2nd defendant |
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