LI YUK CHU v. NG CHUN MING t/a CHUN MING ENGINEERING CO AND ANOTHER

HCPI 705/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 705 OF 2006

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J U D G M E N T

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1. The plaintiff is suing the defendants for personal injuries she suffered while working on a construction site on 2 August 2004.

2. The 1^st defendant who was her employer was a sub-contractor on the site at Shek Pak Wan Estate and the 2^nd defendant was the principal contractor.  It is now in liquidation.

3. The plaintiff comes from Mainland China.  She was aged 54 at the time of the accident.

4. Her education was quite limited and, as a result of this, her opportunities for employment are restricted.

5. She was aged 40 when she came to Hong Kong and initially worked in a garment factory.  Since 1995 she has undertaken manual work on construction sites.  The plaintiff suffers a further disadvantage in that her first dialect of the Chinese language is Minan which is not widely spoken in Hong Kong.

6. The plaintiff gave evidence of the circumstances surrounding the accident.

7. She was requested to perform cleaning duties from the working platform on the 6^th or 7^th level of the building which was being constructed. 

8. There was a pathway outside the building which was used by workers to undertake their duties.  This is referred to as a “working platform”.  As the construction proceeded, this working platform was moved up the building as was required.  On the outside of the working platform, there was a fence or railing, approximately waist high, to protect workers from falling off.

9. The plaintiff said that she gained access to the working platform by way of stairs not shown on the sketch plan forming part of the proceedings.

10. She collected water hose piping.  As it was heavy she walked backwards dragging the hose piping.

11. Unfortunately she failed to notice that the cover over an opening or hole on the floor of the working platform had not been replaced over the opening and she fell through onto the next lower level of the building.

12. She said that she had been aware of the presence of the opening but had not been particularly concerned about it because on all previous occasions she had been on the working platform the hole had been covered by a metal cover.

13. She had assumed that the cover would have been in place as usual.

14. The plaintiff was subjected to cross-examination concerning this accident by Mr Cheung, for the defendants, and he put it to her that she should have checked that the opening had been covered before dragging the water hose along the working platform. 

15. She said that she had had no reason to suspect that the cover was not in place and, indeed, there was no evidence that even if she had looked it would immediately have been apparent that there was an open space in the working platform.

16. The opening in the working platform was used by skilled workers partly to gain access and partly to perform their work.  It would have been incumbent upon them to ensure that the cover was replaced over the opening when it was not being used.  The plaintiff said that she never herself gained access to the working platform through the opening.

17. The plaintiff was taken to the Accident and Emergency Department of the Queen Mary Hospital where it was noted that she had a laceration at the back of her scalp, abrasion wounds on the upper left part of her back and an injury to her right knee and calf such that even now she suffers pain if any weight is placed upon her right leg.

18. She was hospitalised until 29 October 2004 and has received outpatient treatment up to the present time.

19. Perhaps more to the point, it appeared to be accepted by the parties that there was no reasonable prospect that the plaintiff would be able to resume undertaking manual work of the type she had been performing.

20. The plaintiff gave details of the restrictions and inconvenience she suffers consequential upon her injuries.

21. At this stage it is perhaps relevant to refer to the fact that no evidence has been filed giving particulars of any investigation which may have been undertaken by the Labour Department notwithstanding the quite serious nature of this accident.

22. I formed a favourable impression of the plaintiff.  I believe that she was a truthful and reliable witness and she did not exaggerate the nature and extent of the injuries she has sustained.

23. She was the only live witness to give evidence before me on her behalf.

24. The only witness to give evidence for the defendants was Mr Ng Siu Lun.  He was a Contract Director of the 2^nd defendant and had qualifications as a Safety Officer.

25. He was able to describe to the court how a working platform should have been constructed.  However he was not in the 2^nd defendant’s employ at the time of the accident and had no direct knowledge of the site where the accident occurred.  Also, of course, he was unable to assist the court concerning the circumstances of the accident.

26. None of the evidence given to me by Mr Ng caused me to have any doubts concerning the veracity of the plaintiff’s evidence.

27. During the trial Mr Cheung, quite realistically, conceded that an uncovered opening on a working platform absent sufficient warning to the workers on site would constitute a breach of duty to provide a safe system of work.  I would add that in my opinion it would also constitute a sufficient hazard to amount to a breach of the 2^nd defendant’s requirement to provide a safe working environment.

28. It was however Mr Cheung’s contention that the failure of the plaintiff to check where she was going with the water hose amounted to contributory negligence.

29. I agree with Mr Gidwani, for the plaintiff, that this contention cannot be maintained. 

30. What is clear is that the plaintiff was performing duties in accordance with the instructions of her superiors and that the water piping was heavy thus necessitating her pulling it backwards.

31. As on previous occasions she had observed that the opening had been covered, there was no reason for her to suspect that there was any hazard.

32. I am satisfied that the plaintiff was not guilty of contributory negligence.

33. I am, however, satisfied that the 1^st and 2^nd defendants have been proved negligent as claimed in the Statement of Claim.

34. That then leaves the question of the quantum of damages to be awarded.

35. Both counsel have been able in large measure to agree the relevant heads of damage.

(1) Pain, Suffering and Loss of Amenities

36. Counsel have agreed these at $400,000.

(2) Loss of earnings

37. Counsel have agreed the multiplicand at $10,000.  Pre-trial period is 50 months.  Hence pre-trial earnings amount to $500,000.

38. Post trial earnings have not been agreed as there is dispute over the multiplier to be adopted.  Mr Gidwani contended that it should be seven years and Mr Cheung contended for 30 months. 

39. A number of factors have to be weighed in the balance.  Prior to the accident the plaintiff enjoyed good health.

40. The nature of the manual labour she performed was relatively light consisting of such duties as cleaning.

41. The plaintiff gave evidence that she would have been able to work up to the age of 70.  I consider this to be unduly optimistic.

42. Taking everything into consideration, I am of the view that Mr Cheung’s assessment of the position is unduly pessimistic.  

43. However I also consider that Mr Gidwani’s submission that the multiplier should be seven years is excessive.

44. Although the plaintiff was in good health I consider that the prospects of employment for a female employee over the age of 54 would increasingly become more difficult.

45. I hold that a multiplier of five years would be appropriate in this case and I so order.  The amount for post trial loss of earnings is therefore $600,000.

(3) Special damages

46. The parties have agreed special damages which include medical expenses, travelling and tonic food at $30,000.

(4) Loss of earnings of the plaintiff’s husband

47. A claim is included for the plaintiff’s husband’s loss of earnings consequent upon his caring for her.

48. This included taking time off to accompany her to hospital when she was receiving medical treatment.  The amount claimed is $52,000.

49. This was not agreed by the parties.

50. I have no doubt that it is proper to make an award under this head.

51. Although there were numerous attendances at hospitals over a protracted period of time, I am of the view that the amount being claimed is on the high side.  I consider, in all the circumstances, that an appropriate award would be $40,000, and this is the amount I order.

(5) Employees’ Compensation

52. A deduction of $248,470 must be made as the plaintiff has received this amount in respect of an award under the Employees’ Compensation Ordinance, Cap. 282.

SUMMARY

53. The summary of compensation is as follows :

(1)	Pain, suffering and loss of amenities	$400,000
(2)	Loss of earnings
	(a) Pre-trial	$500,000
	(b) Post trial	$600,000
(3)	Special damages	$30,000
(4)	Husband's loss of earnings	$40,000
	Sub-total :	$1,570,000
	Less : Employees' Compensation deduction	- $248,470
	Total :	$1,321,530

54. Judgment will enter for the plaintiff in this sum.

55. The plaintiff will have interest on the damages awarded at the appropriate rate for the relevant periods applicable.

56. I make an order nisi that the plaintiff is to have her costs, and the costs will be taxed in accordance with the Legal Aid Regulations.