MAHMOOD TARIQ v. KINWAY ENGINEERING LTD AND OTHERS

HCPI 149/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 149 OF 2006

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J U D G M E N T

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1.  Mahmood Tariq the plaintiff was one of a number of plasterers engaged on a casual basis to work on a construction site in Aberdeen. 

2.  The 2^nd defendant Shui On was the principal contractor; Kinway Engineering the 1^st defendant was a subcontractor responsible, inter alia, for plastering.  Yau Kin Wai the 3^rd defendant, also a subcontractor, employed the plasterers, and instructed and directed them in the work they undertook.

3.  On 24 June 2004 the plasterers were given the task of spraying concrete on a ceiling of the carpark which was in the course of construction on the site.  They worked in unison, on an elevated mobile platform which was equipped with safety rails around its four sides.

4.  The work proceeded without incident.  Then Mr Yau took Mr Tariq off the platform to spray a small additional area that had not so far been covered.  The elevated platform with rails was occupied; thus Mr Tariq was told to use another.  But this had no rails or other barrier to avoid risk of a mishap.  And during the course of his work he accidentally stepped backwards off the platform, falling about two meters to the floor.  He suffered injuries to his lower back and, to a lesser extent, his right knee.

5.  This is his claim for recompense in damages, founded in the tort of negligence, in breach of his contract of employment and in breach of the statutory duty of care he was owed.

6.  Although a defence was pleaded, on the first day of trial I was told by Mr Chan, counsel representing all three defendants, that liability was admitted; in the event there was no evidence forthcoming on liability.  What remains in dispute is as to whether there was contributory negligence by the injured Mr Tariq.  Mr Chan argued that to the extent of 20 to 30%.  Miss Tsang, counsel for Mr Tariq, urged upon me that there was no contributory negligence at all.

7.  The remaining matters in dispute all go to the issue of quantum of Mr Tariq’s loss.

Background

8.  Mr Tariq is a Pakistani.  He was born in Pakistan in 1966, which made him 38 at the time of the accident.  He is now 41.  He came to Hong Kong in 1987.  He is married with three school-aged children.  His wife does not work; he has all along been the sole breadwinner.

9.  Between 1987 and 1997 Mr Tariq worked as a factory worker and security guard.  From 1997 he became a casual construction site worker.

10.  In January 1999 he met up with Mr Yau the 3^rd defendant and thereafter when work was available he came to be employed by him.  Just how much work was offered that he then undertook is at issue to which I shall return.  Suffice to say he became a plasterer so that when he was employed he was paid the daily rate of $600.

11.  Mr Tariq was assigned to the construction site at Aberdeen on 11 May 2004 and was there until the day of the accident when his injuries prevented a resumption.  During that time he earned $11,400, which equates with about $7,600 per month.

The Job Description

12.  The work that Mr Tariq was employed to carry out on the Aberdeen construction site required him to spray concrete on to the walls and ceilings of the carpark in a team of about 9 or 10 co-workers.

13.  The spraying equipment comprises a machine through which liquid concrete is pumped into a flexible pipe of several meters ending in a nozzle which is about a meter long.  The pipe is pressurized, which thus forces the concrete out and on to the designated surface.  When the ceiling was the prescribed target, each worker was required to climb on to the elevated platform bringing with him the nozzle attached to the pipe.  Part of the weight of the pipe would be carried by a tie affixed to the safety rail around the platform.

14.  The machine can be turned on and off by a switch located at or near the nozzle, and the pressure similarly regulated.  By this means the worker can spray his designated area ensuring sufficient coverage evenly spread.

15.  Mr Tariq said that with the partial support I have referred to the weight to be thus borne by the worker is about 30 kilogrammes, and 10 kilogrammes more if the pipe is not tied off to the rail. 

16.  It was not said but it goes without saying that this is a job which requires strength and stamina and concentration.  The need to ensure an even and adequate coverage whilst operating in noisy, dirty and crowded conditions would make this a taxing exercise.

17.  Coupled with this activity the plasterer is required to move his machine around from floor to floor as may be necessary, and to carry bags of cement and other weighty material from time to time.

The Accident

18.  It was towards the end of the working day that Mr Yau directed Mr Tariq to carry out the spraying in question.  The area was small — no more than about two square meters.  Mr Tariq estimated it should have taken about four minutes.  As directed he climbed on to the available platform which had no guard rails.  He was aware of that.  He brought with him the nozzle, with the pipe snaking behind it.  As there was no rail there was nothing to tie it off on to; thus it weighed 10 kilogrammes more than before.

19.  Mr Tariq began to spray.  As he did so he was stepping backwards.  He underestimated his distance from the edge and stepped backwards into space.  He landed on the floor on his back.  He had been engaged on this job for about three minutes.

The Injuries

20.  Mr Tariq was taken by ambulance to Queen Mary Hospital.  A report reveals he complained of back, left hip and right knee pain.  There was tenderness at the left paraspinal area around the 5^th lumbar vertebra.  There was no neurological deficit.  The diagnosis was back sprain and right knee contusion.  He was held for two nights and then discharged for follow-up; this was to be with analgesics and physiotherapy.

21.  Physiotherapy was begun on 12 August.  Mr Tariq was found to have very limited extension and lateral flexion left and right.  After 15 sessions there was impaired mobility but by this time the condition was static and he was discharged on 8 November with a programme of home exercises.

22.  Mr Tariq received a series of sick leave certificates up to 5 July 2005; a period thus of 12.5 months.

Post-Accident Circumstances

23.  Mr Tariq did not attempt to return to the construction site workforce at the termination of his sick leave or at all afterwards.  He said that since the accident he has suffered from back pain with varying severity.  He cannot sit or walk for more than a short time without taking a break.  Moreover his back could not stand the physical pressures of manning a spray machine, of mounting and dismounting from the elevated platform, of lugging the machine around the site and of carrying the heavy loads a plasterer is required to bear.

24.  Instead, following his sick leave, he tried for less arduous employment, including becoming a security guard.  In the event he came to be so employed, but not until nearly a year later in June 2006, and then only for a month as it was temporary relief work.

25.  He finally became properly employed on 8 October 2006 when he joined Nam Tai Security Company Limited.  He is with them to date.  He works the night shift for a stint of 14 hours, and benefits from occasional overtime.

The Issues

26.  Those matters for resolution now follow:

(a)     Has contributory negligence been established, and if so to what extent?

(b)    What was Mr Tariq earning on average up to the date of the accident?

(c)     Could he have returned to work on construction sites after his sick leave?

(d)    Should he have been able to find work straight after his sick leave, or at least earlier than was the case?

(e)     What is a proper award for pain suffering and loss of amenities?

(f)     What is the proper level of loss of income pre-trial, and post-trial?

(g)     Should there be provision for loss of earning capacity?

Contributory Negligence

27.  This is a fact sensitive issue.  Mr Tariq said that during the brief course of his working on the unsafe platform he overlooked that there were no guardrails.  He was used to pushing back until coming into contact with the rail.  Mr Chan pointed out that the time between his climbing on to the platform and then falling from it was so short that it was obviously negligent of him to allow himself to step off it.

28.  I accept that Mr Tariq was not on the platform for long before he fell off it.  But I also recognise that he was engaged in what I have earlier described as noisy, dirty and taxing activity.  It was at the end of a long working day.  He had to bear more weight than before because his pipe was not tied off.  He was sent up on to a platform that was unquestionably unsafe if not downright dangerous.  He was doing the best he could.  I find it not established that he was negligent which caused or assisted in his fall.

29.  There will be thus no reduction for contributory negligence.

The Pre-accident Income

30.  Notoriously in cases of this sort involving a construction site accident to a casual worker there is a paucity of data to establish what sort of work history the victim had before the accident.  It is not unheard of for an exaggerated workload to be put forward.

31.  Mr Tariq said that as a casual worker on $600 per day he could work up to 26 days per month.  But he conceded that there were periods when he was not employed.

32.  Not long before the Aberdeen site stint when there had been no work he had gone to Pakistan where he stayed for about five months. 

33.  And it is pertinent that for the 44 days he was available to work on the Aberdeen site he was paid a total of $11,400, which meant he worked only 19 days, or less than half the days available.  Of course that percentage may well have been increased had he not suffered the fall.

34.  Miss Tsang submitted that a realistic estimate is that he worked on average 18 days per month, making thus $10,800 per month.  Mr Chan submitted he could not justify more than $7,600.  Tellingly, in cross-examination Mr Tariq agreed with this.  In fact that is the monthly income he was being paid at the Aberdeen site, and pays no heed to the times he was not employed at all.

35.  In my view that is a generous calculation; one which I am satisfied is as much as could be acceptable.  I find thus Mr Tariq earned $7,600 per month up to the date of the accident.

Was Construction Site Work Post-Accident an Option?

36.  In respect of this issue I turn to medical opinion for assistance. 

37.  As a pre-trial direction Mr Tariq was examined by two orthopaedic surgeons, Dr Patrick Wong (appointed by Mr Tariq) and Dr Lee Po Chin (appointed by the three defendants).  They were then asked to file a report which came to be adduced without the calling of the doctors.

38.  Mr Tariq was examined in November 2005 and the report came out a month later.

39.  The doctors noted that he still complained of back pain which affected his ability to sleep and to walk and to sit for long periods.  There was also mild right knee pain.  He told them he could not return to his former job because of the strength and agility needed to perform the concrete spraying and that the back pain would make that intolerable.

40.  He was asked to perform various tests to establish the extent of flexion, extension and other exercises in mobility.  X-rays of his back revealed a loss of normal lumbar lordosis and mild degenerative spondylosis with reduced L5/S1 disc space.  There was no bone or joint lesion in either the back or right knee attributable to trauma.

41.  Both doctors then gave their opinion.  Both noted local tenderness and reduced lumbar spine movement.  There was no significant lower limb abnormality.  Both said he “demonstrated a number of inappropriate physical signs” by which I take it he exaggerated his symptoms.

42.  Dr Lee opined that the impairment of the lower back was 3% with no further impairment associated with the knee.  Dr Wong put the back impairment at 5% and the knee at 1%.

43.  And they came to different conclusions on his ability to return to his pre-accident employment.

44.  Dr Wong said of that:

“Mr Mahmood is incapable of performing his pre-accident job as efficient as before basing on the job description supplied by him.  He may need help from other workers from time to time.  He should have no problem in performing other types of light to moderate manual jobs such as machine operator, cleaning worker or security guard.”

And Dr Lee said:

“Mr Mahmood should be able to return to his old job as a cement worker in view of the mild low back symptoms.  Change of occupation is not necessary.”

45.  It is apparent that both doctors regard Mr Tariq’s condition as relatively mild on the scale of mild to severe.

46.  Nevertheless, I wonder whether Dr Lee had sufficient information before him as to the extent of strength, stamina, fitness and mobility needed to undertake the concrete spraying that was Mr Tariq’s particular construction site activity.  And this included manhandling the machine to whatever level and carrying heavy weights such as cement.

47.  It seems to me that this is work that can only be properly and safely undertaken by a worker who is fully fit.  Mr Tariq is not fully fit.  It would be unreasonable to expect assistance from co-workers.  And the risk of a recurrence or aggravation of back pain is obvious.

48.  In the circumstances I believe returning to his former employment was not an option, and remains so.  The work he undertakes now, that of a security guard, is realistic in the circumstances.  His average monthly income including overtime is $6,600.

When Could Mr Tariq Have Returned to Work?

49.  Mr Chan submitted that to take 11 more months after the sick leave was over to find suitable employment was far too long, given particularly that Mr Tariq was returning to work as a security guard which activity he had undertaken in the past.  He invited me to hold he should have succeeded by three months after the sick leave.

50.  Ms Tsang countered with the fact that Mr Tariq’s English and Cantonese are basic (he needed a Punjabi interpreter in giving his evidence) and that would have made the task of getting work harder.  She submitted he had done enough in trying to find an alternative job.  When he did find one, it was one which requires him to work long hours and night shift, and he works overtime when he can.

51.  That said, there was no evidence to show what efforts he did make.  He admitted that he took another trip to Pakistan at this time.  My view is that he should have found an appropriate position by six months after the end of his sick leave.

PSLA

52.  Both counsel submitted copies of recent judgments in cases tried locally to assist me in reaching the right level of award under this head.

53.  Miss Tsang submitted six, with particular emphasis on three: Yeung Tai Hung v Hong Kong Baptist Hospital, HCPI 684/2004, Lung Kwong Ying v So Sai Lo, HCPI 206/2001 and Cheung Yuk Lin v Unipar Limited, HCPI 1189/1997.  In respect of these cases the awards were respectively $300,000, $250,000 and $250,000.  She proposed a figure of between $250,000 and $300,000.

54.  Mr Chan considered these awards to be too high for this case.  He put forward his selection, of which I mention the following:  Ho Kwai Hong v Chung Kok, HCPI 93/2002, Tam Kwok Man v Kowloon Motor Bus Co., HCPI 755/2001 and Lai Kam Wah v Wing & Kwong Co. Ltd, HCPI 1131/2002.  These awards ranged between $50,000 and $350,000, in the light of which he proposed as appropriate one of $150,000.

55.  I have to say I derive more assistance from the cases presented by Miss Tsang, although having regard to the extent of Mr Tariq’s disability I find her proposals to be on the high side.

56.  I fix the award under this head at $200,000.

Loss of Income

57.  I have established now that Mr Tariq’s income before the accident was $7,600 per month, that he should have been able to get employment by 5 January 2006, that his current level of income averages $6,600 per month.  It is agreed that the multiplier should be (if applicable) 12; thus I can now calculate his loss of income.

Pre-trial income:
$7,600 x 18.5 months (to 5.1.06)	$140,600
related MPF:
$140,600 x 5%	7,030
$7,600 - $6,600 x 16 months (to 4.5.07)	16,000
related MPF:
$16,000 x 5%	800
	$164,430 =======
Future loss of income:
$7,600 - $6,600 x 12 x 12	$144,000
related MP:
$144,000 x 5%	7,200
	$151,200 =======

Loss of Earning Capacity

58.  Mr Chan submitted that this should only be contemplated were I to have found Mr Tariq sufficiently recovered to have returned to the work of a construction site worker; otherwise, there is nothing to suggest that he is at risk of being dismissed from working as a security guard or similar by reason of his disabilities.

59.  I agree.  There will be no award under this head.

Remaining Matters

60.  With the disputed issues thus resolved there remains those agreed.  These include the following:

Special damages amount to $4,241; interest on the PSLA award should be 2% from the date of the writ to judgment; interest on the pre-trial loss of earnings and special damages after deduction of the payout of employee’s compensation should be half the current judgment rate (5.38%) from the date of the accident to the date of judgment.

Quantum of Loss

61.  This comes to the following:

PSLA	$200,000
Pre-trial loss of income plus MPF	164,430
Future loss of income	151,200
Special damages	4,241
	519,871
Less ECC payment	159,820
	$360,051 =======

In addition there shall be interest at 2% p.a. on $200,000 from 16 February 2006 to this date, and at 5.38% on $8,851 from 24 June 2004 to this date.

62.  There will be judgment in favour of Mr Tariq for this amount.

Costs

63.  These are nisi.  They are to Mr Tariq taxed if not agreed on the District Court scale.

64.  I do not have the benefit of knowing the amount paid in (if any).  To assist the parties I mention that if that exceeds the total award my nisi order (subject to argument) will need to be amended to reflect that.  Hopefully the parties should be able to agree that amendment.

65.  Mr Tariq is on legal aid.  His own costs are to be taxed under Legal Aid Regulations.