CHAN YU CHAU v. FONG ON CONSTRUCTION & ENGINEERING CO. LTD.

HCPI 753/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 753 OF 2000

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J U D G M E N T

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1. This action arises from an accident which befell the Plaintiff, then aged 41 (now aged 45) at about 2:00 p.m. on 6th March 1998 when he was using a bench type circular saw to cut wooden boards on a construction site in Centre Street, Hong Kong. His right hand came into contact with the circular saw amputating most or all of his right thumb, index and middle fingers.

2. The Plaintiff was a formworker employed by 2nd Defendant, Yeung Kin Kong, who is now deceased and whose estate is being represented by his son, Yeung Kim Ho. The principal contractor responsible for the construction of a multi-storey building on the site was Fong On Construction and Engineering Co. Ltd, the 1st Defendant. It had subcontracted the formwork to the 2nd Defendant. It had also taken out a policy of insurance in relation to workers on the site including those of the 2nd Defendant but the insurer has gone into liquidation. The Employees Compensation Assistance Fund Board, recognising its potential liability in the event of any judgment against 2nd Defendant, successfully applied to be joined as intervenor in these proceedings on 15 April 2002.

3. The Plaintiff was one of 4 formworkers employed by the 2nd Defendant at the site. He had obtained the job through Mr Mak Kwok Wai one of his fellow formworkers. From the evidence before me , it was apparent that, following completion of the ground floor, the circular saw bench used by the formworkers had been moved to the 1st floor the day before the accident. The circular saw and the bench had been ordered by Mr Mak Kwok Wai acting on behalf of the 2nd Defendant from a metal works company in December 1997 before the work started. It had come as a set which had to be assembled before use. The set included a riving knife to which a crown guard was to be attached. This form of guard was in common use at that time, although other guards were then available (such as that exhibited as Exhibit D1) which provided greater protection in preventing any contact between a worker's body and the revolving blade of a circular saw. The Plaintiff took no part in the assembly of the bench and saw, which was done by one of his colleagues.

4. On the day of the accident the Plaintiff and his colleagues had been constructing and erecting formwork on the 1st floor. This had involved each of them cutting wooden boards and battens and hard plastic tubing as the need arose. The hard plastic tubing would be cut into short lengths and placed between the formwork boards before the pouring of concrete to provide a channel through which a bolt could be placed which would be screwed at both ends thereby enabling the formwork boards to hold the weight of the concrete.

5. The Plaintiff went for lunch at around 12:00 noon returning about an hour later around 1:00 p.m. An hour later the accident occurred. During that hour, the Defendant and his colleagues continued to use the saw bench to cut wood and plastic tubing.

6. At the time of the accident, the Plaintiff was sawing a 12" wide (3/4" thick) wooden board into half lengthwise. According to his evidence, his hands were placed on each side of the board as he pushed it towards the saw. His evidence was that it was only when the end of the board was 2-3" from the blade that he would use his hammer as a push stick to push the final part of the board towards the blade. On the day of the accident he had not yet considered it necessary to use his hammer as the blade was still around 6" or slightly less from the end of the board. It was at this point that he slipped, fell forward and his right hand came in contact with the blade.

7. In his witness statement which he adopted as part of his evidence, he said that what caused him to fall forward and come in contact with the blade was that he had accidentally stepped on a discarded plastic tube end (like those exhibited as Exhibit P1). In his evidence in the Magistrates Court during the course of the (unsuccessful) prosecution of the 1st Defendant for various statutory offences, the Plaintiff had simply said that it was "possible" that what had caused him to slip was that he stepped on a piece of plastic tube. When cross-examined about this during this trial he said that it had been a long time ago and he could not remember but that it was possible he had stepped on plastic tubes. It was his evidence and that of his colleague Mak Kwok Wai that there were many such plastic tube ends and discarded wood chips on the floor.

8. Following the accident, the Plaintiff was taken to Queen Mary Hospital. He was found to have sustained amputation of the right thumb at the proximal phalangeal joint, amputation of the right index finger at the metacarpo phalangeal joint and amputation of the right middle finger at the proximal phalangeal joint. An emergency operation was conducted in an attempt to restore the severed digits but subsequently they became gangrenous. A further operation was conducted on 17 March 1998 to remove the amputated digits. He was discharged home on 21 March 1998. Thereafter he received the physiotherapy and occupational therapy. He was given 9 months sick leave until 3 December 1998.

9. The medical evidence as to the Plaintiff's treatment was agreed. The specialists' reports which primarily related to the Plaintiff's working capacity were not agreed, but the reports of the makers (Mr Steven Tam Chi Wan (occupational therapist), Dr Brian Chan Kwok Pui (orthopaedics) for the Plaintiff and Mrs Alice Tsang Lau Kit Ping (occupational therapist) and Dr Chung Siu-yeung (orthopaedics) for the Defendant) were admitted into evidence without the makers being called.

10. Although the Plaintiff's reports differed from those of the Defendants as to whether the Plaintiff could return to his pre-accident employment, they have to be read in the light of the fact that the Plaintiff had not disclosed to the examining doctors that he had resumed working as a formworker at the time of the respective examinations.

11. The findings of the doctors were unsurprising given the nature of the Plaintiff's injuries to his dominant right hand.

12. In particular, since the thumb is the key component in making a power grip, the absence of all but a very small stump of the Plaintiff's thumb has meant that his right hand has only about 1/3 of the power grip of the left hand. He cannot make a pincer grip for fine finger manipulation of an object with his right hand.

13. From the point of view of a carpenter his ability in hammering and nailing is affected as he cannot hold a hammer tightly during hammering. Because he is dependent on the stumps of what is left of his right thumb and middle finger for grip, he has to raise his forearm to place these stumps at an appropriate angle of approach.

14. He can no longer use chopsticks with his right hand. The injuries seriously affect his ability to write but this is of limited significance in this case in view of his illiteracy.

15. He complains of not being able to tie his shoelaces and of embarrassment when people look at his right hand when he walks in the street. He says that the use he now makes of his right hand is to assist his left hand with which he performs all major tasks.

16. He has received a total of $1,330, 572 in respect of Employees Compensation.

17. The Plaintiff's claim against both Defendants is for negligence and breach of occupiers liability. In so far as the 1st Defendant is concerned he also alleges various breaches of statutory duty and in so far as the 2nd Defendant is concerned breaches of an employer's duty under the contract of employment.

Breach of Statutory Duty (D1)

18. The statutory duties which the Plaintiff claims were breached by the 1st Defendant include Regulations 6, 10(3), 10(4) and 11 of the Factories and Industrial Undertakings (Woodworking Machines) Regulations, Cap. 59 and Regulations 52(1) and 44 of the Construction Site (Safety) Regulations, Cap. 59.

19. The Factories and Industrial Undertakings (Woodworking Machinery) Regulations places duties on the "proprietor". "Proprietor" is defined in s. 1 of the Factories and Industrial Undertakings Ordinance, Cap. 59 to include:

"The person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace...... and also the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier."

By virtue of the same section "industrial undertaking" includes any construction work and the premises or site where such construction work is carried out.

20. I am satisfied that the business which was being carried on was construction work and that the 1st Defendant as the principal contractor at this construction site did have the management of such business. Furthermore, I am satisfied that as the principal contractor he was occupier of the site where the construction work was being carried on.

21. The situation is quite different from that in Ma Kam Yeung v Fu Hay Kin [1998] 2 HKLRD 615 where the Defendant was the owner and occupier of a private apartment.

22. The 1st Defendant was accordingly under a duty to comply with these regulations.

23. Regulation 10(3) relates to riving knives. The Plaintiff alleges that the 1st Defendant failed to maintain the riving knife as close as practicable to the circular saw at the level of the bench table and so positioned that the distance between the front edge of the knife and the teeth of the saw did not exceed 15 mm contrary to this Regulation. Even if there had been a breach of the regulation, I do not regard it as having any relevance to the accident sustained by the Plaintiff. The place he sustained his injury was on the opposite side of the circular saw to the riving knife where the wood to be cut was pushed towards the blade.

24. Regulations 10(4) and Regulation 6 are much more significant.

25. The relevant part of Regulation 10(4) provides:

"The top of a circular saw shall be covered by a strong and easily adjustable guard, with a flange at the side of the saw furthest from the fence; and such guard shall:-

(b) extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw."

Regulation 6 provides:

"The floor surrounding a woodworking machine shall be maintained in good and level condition and as far as practicable, free from chips and other loose material and shall not be allowed to become slippery."

26. Whether the 1st Defendant was in breach of these duties calls for an evaluation of the evidence. Unfortunately no investigation of the accident at the site was conducted by an occupational safety officer until 25 May 1998, two and a half months after the accident. By that stage, the circular saw was not available for inspection. The Court has therefore to rely on the recollection of the Plaintiff as to the nature of the saw and the guard which protected it. Inevitably measurements cannot be exact. He took photographs of what he says is a similar circular saw protected by a riving knife and crown guard. Bearing in mind the evidence that similarly guarded circular saws were common in the industry at that time, I accept that the photographs probably give a fair picture of the saw and guard on which the Plaintiff met his accident.

27. The Plaintiff's evidence was that from the point of view of the workman the guard could not be adjusted. The riving knife was fixed to the table. The screw by which the crown guard was fixed to the riving knife was not for the purpose of adjustment by the worker but to fix the position of the crown guard when it was installed. There was in any event a limit to how low the crown guard could be fixed because of a protrusion on the riving knife which prevented it being positioned any lower. It could not be lowered to a position whereby the front of the guard was less than 2" odd from the table.

28. The saw and level of the guard had not been installed and fixed by him.

29. It follows from the Plaintiff's evidence that the blade at the front of the saw must have been exposed to a height of at least 2" because amongst the items the formworkers needed to saw were battens 2" square. The Plaintiff himself seems to have regarded the crown guard more of a device to prevent wood chips flying up into the face of the worker than a means of preventing the body of the worker coming in contact with the saw.

30. In considering the evidence I do not have to be satisfied to the same high standard as the Magistrate who acquitted the 1st Defendant of inter alia Contravening Regulation 10(4). I simply have to determine where the probabilities lie. Having considered the evidence I am satisfied that the guard provided to this circular saw once installed was not adjustable in the sense that it could be adjusted to lessen the aperture between the table top and the bottom of the guard at the front. Although there was some evidence from the Plaintiff in the Magistrates Court which might be interpreted as suggesting that the position of the riving knife could be moved, it is not clear to what the Plaintiff was referring and in particular whether he was referring to the possibility of installing the riving knife in different positions.

31. His statement to the Occupational Safety Officer which appears in the Accident Report is that the riving knife was fixed to the bench by two nails. This is consistent with his evidence in court that its position was fixed. I consider that he is probably mistaken in saying that the riving knife was nailed to the bench. I preferred the evidence of Mr Mak Kwok Wai, who ordered the equipment on behalf of the 2nd Defendant, that the riving knife was bolted using holes in the angle bars which form the metal framework beneath the table top. In any event the riving knife was in a fixed position.

32. Bearing in mind the Plaintiff's evidence that he was sawing a plank 3/4" thick at the time of the accident and the fact that the guard must have left at least 2" of the circular saw blade exposed at the front of the machine, I consider it probable that in the course of slipping the Plaintiff's hand came in contact with the more than 1 1/4" of exposed blade above the plank he was sawing and the bottom of the crown guard.

33. I find that the accident to the Plaintiff would not have occurred had it not been for the 1st Defendant's breach of Regulation 10(4) in failing to provide an easily adjustable guard which should extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw. There were such guards available. One such type was exhibited as Exhibit D1. Another type was depicted in an illustration produced in the Magistrates Court.

34. In the light of my findings in relation to this regulation as to fencing, it is not strictly necessary for me to decide whether the circular saw was "machinery for which" D1 was "responsible" in order to render it liable by virtue of Regulation 44 Construction Sites (Safety) Regulations, Cap. 59 for failure securely to fence it. Although there can be no doubt that the saw was purchased and installed by those acting on behalf of the 2nd Defendant, I am satisfied that the 1st Defendant was responsible for the construction site. (see Regulation 2(2) Construction Site (Safety) Regulations Cap. 59). Indeed the 1st Defendant admitted as much in the Magistrates Court. I find the circular saw fell within the definition of "Plant" in Regulation 2 of the Regulations and that by virtue of Regulation 2(2)(b) the 1st Defendant was responsible for it. In the circumstances of this case I find that 1st Defendant failed to ensure that the dangerous parts thereof were securely fenced to the satisfaction of the Commissioner.

35. The 1st Defendant was responsible for the duty imposed by Regulation 6 of the Factory and Industrial Undertakings (Woodworking and Machinery) Regulations, Cap. 59 in respect of floors and in particular chips and loose material thereon.

36. In view of the evidence of the Plaintiff and Mr Mak Kwok Wai as to the state of the floor around the machine at the time of the accident and the Plaintiff's evidence that the accident occurred when he slipped forward, I consider it more probable than not that he did so because of the state of the floor on which there were many tube ends, wood chips and other discarded items.

37. In my view the absolute duty imposed by Regulation 6 not to allow the floor to become "slippery" does not relate to the circumstance in which the floor may become hazardous because of the presence of "chips and other loose material". The proprietor's duty in respect of "chips and other loose debris" is to keep the floor free of those items "so far as practicable".

38. The evidence of the Plaintiff was that it was the usual practice of formworkers, a practice which he himself had followed in the 20 years he had been involved in the trade, to sweep remaining loose debris from the circular saw table onto the floor before starting to use the circular saw table themselves.

39. Dr James Lau Chi Wang, the Managing Director of the 1st Defendant, gave evidence which I accepted without hesitation, that his firm had engaged Mr Chan Po Ming of the Ming Kee Decoration Engineering Corporation to keep the site clean and that six workers were employed cleaning the site. He said that the flooring at the 1st floor level must have been clean the previous day because that was the first day work had commenced on the newly laid concrete. Mr Chan Po Ming was not available to give evidence at the trial but had given evidence in the Magistrates Court. That evidence was admitted in this trial. His evidence was that the floor beneath the circular saw table would normally be cleaned at least 3-4 times per day. He was able to say the floor was clear at lunch-time on the day of the accident (presumably between 12:00 and 1:00 p.m.) because he himself had checked it.

40. I find that Mr Chan Po Ming's evidence that the floor was clear at lunch-time, is not necessarily inconsistent with the evidence of the Plaintiff and Mr Mak Kwok Wai as to its state at the time of the accident. The Plaintiff and his 3 colleagues had been using the table for the hour between 1:00 p.m. and around 2:00 p.m. when the accident occurred. Following the normal practice, they would have swept wooden chip, tube ends and other debris onto the floor during that period.

41. In his witness statement the Plaintiff said that the ground had been littered with such debris for one or two days before the accident and that no one had cleaned it. In view of Dr Lau's evidence that the floor would have been clean the previous day when the workers first started working at that level, I find that floor cannot have been in that condition for 2 days prior to the accident. In any event the condition of the floor is unlikely to have remained the same since the previous day as the accumulation of debris on the floor would have been progressive. In court the Plaintiff appeared less sure about the length of the time the debris had been on the floor. He said he "did not think so" when asked if the premises had been cleaned before he commenced work that afternoon. On balance I find that the Plaintiff has failed to prove that the floor was not cleared at lunch-time that day. Accordingly the debris on the floor is likely to have accumulated there during the hour since the lunch break.

42. In such circumstances, had the 1st Defendant failed in his duty to keep floor clear "so far as practicable"?

43. I find that 1st Defendant had not discharged its duty simply by employing a contractor who inspected the premises three or four times a day including an occasion an hour before the accident. The hazard occasioned by debris on the floor was not an unusual occurrence. It would have been readily apparent to the 1st Defendant that the formworkers' system of work created such debris more or less continuously in the course of their work. The 1st Defendant's duty was not discharged simply by cleaning the floor from time to time knowing that debris would accumulate in the meantime. Its duty to keep the floors clean "as far as practicable" included if necessary a duty to ensure that the system of work adopted by the employees of its subcontractor did not result in such a hazard. I find that the 1st Defendant was in breach of its duty under Regulation 6 and that on the balance of probabilities without such breach the accident would not have occurred.

Regulation 11 Factory and Industrial Undertakings (Woodworking Machinery) Regulations, Cap. 59

44. I find no breach of Regulation 11. There was no complaint by the Plaintiff that there were nothing suitable to be used as a push stick. Indeed his evidence was that he used his hammer for that purpose but he did not think the time had come when it was necessary to use it.

Regulation 52(1) Construction Sites (Safety) Regulations

45. I find that this regulation is inapplicable to the scene of this accident being confined to areas which are used as passageways. There is no suggestion that the area where the accident occurred was used for that purpose.

Occupier's Liability/Negligence

46. In the light of my findings as to breach of statutory duty by the 1st Defendant I do not propose to go into detail regarding the allegations of breach of the 1st Defendant's duty as occupier under the Occupier's Liability Ordinance, Cap. 314 or in negligence beyond saying that I regard the 1st Defendant as having breached its duty to take such care in all the circumstances as reasonable to see that the Plaintiff was reasonably safe in using the premises for which he was invited or permitted to be there. It was foreseeable that the presence of debris on the floor would create a hazard. This was not a "special risk" ordinarily incident to formworking but a normal and obvious risk. Moreover from its experience on that site if not from others, it would have been apparent to the 1st Defendant that the formworkers were not appreciating and guarding against the risk arising from discarded debris on the ground.

Breach of duty by the 2nd Defendant

47. No breach of statutory duty was alleged against the 2nd Defendant, the Plaintiff's direct employer, but simply allegations of negligence, breach of duty as an occupier and under the contract of the employment with the Plaintiff.

48. There can be no doubt that the 2nd Defendant was in breach of his duties to the Plaintiff.

49. The circular saw, its guard and incidental equipment were purchased and installed by those acting on behalf of the 2nd Defendant. Amongst other matters, it was foreseeable that in the absence of a guard such as that in Exhibit D1 or an otherwise easily adjustable guard, an accident such as that in which the Plaintiff was involved might occur.

50. Moreover, it was also foreseeable that the system of work that the 2nd Defendant permitted its workers to adopt without objection or instruction as to safer practices resulted in a hazardous accumulation of debris on the floor surrounding the circular saw.

Contributory Negligence

51. In the course of cross-examination having been questioned about the general practice of formworkers to sweep tube ends and wood chips to the floor the Plaintiff was asked about his practice of carrying on working with those items underfoot. He agreed that he was at least partially responsible for the accident.

52. Bearing in mind that he was only one of four formworkers working at the time, each of whom was using the circular saw table and brushing debris onto the floor, it cannot be shown who was responsible for brushing the particular debris to the floor on which the Plaintiff slipped. He can, however, be held partially responsible for continuing to work with such debris present and failing to clear it away.

53. In my view the contributory negligence attributable to such failure must be limited, because even if he was negligent in that way and had slipped, an adequate guard would have prevented his hand coming in contact with the revolving blade.

54. I do not find that any contributory negligence can be attributed to the Plaintiff in respect of the circular saw and its guard. It was not purchased or installed by him. Bearing in mind that this was a type of guard regularly in use at that time (although safer alternatives were available) the Plaintiff cannot be held responsible for failing to complain about the guard which was provided by his employer and tolerated by the principal contractor at the site.

55. I have found that the guard was effectively not adjustable so the Plaintiff cannot be held responsible for breach of Regulation 19 Factory and Industrial Undertakings (Woodworking Machinery) Regulations, Cap. 59.

56. It has been suggested that had the Plaintiff used a "pushed stick" or a hammer as a "push stick" that and not his hand would have come in contact with the blade. In my view this is pure speculation. It has not been demonstrated that there was anything unreasonable in the Plaintiff not using a push stick or a hammer as a push stick at the time the accident occurred. Bearing in mind the need to control the board being sawed it may well have been entirely reasonable for the Plaintiff to continue to use his hands to control the board until the blade was closer to the end of the board.

57. I have been referred to a number of authorities which relate to contributory negligence on the part of those using circular saws. It has to be borne in mind that this case is distinguishable from the circumstances to which I have been referred by the fact that the Plaintiff was not disregarding instructions (as for instance occurred in Denwood v Harrod unreported CA 22 October 1997) nor was the guard even partially adjustable (as in Cakebread v Hopping Brothers (Whetstone) Ltd [1947] KB 641).

58. In assessing the degree of contributory negligence attributable to the Plaintiff continuing to work with debris underfoot, I have borne in mind the general principle restated by Stephen Brown LJ in Denwood v Harrod (Supra):

"When the accident is held to be caused primarily by a breach of statutory duty it has to be borne in mind that the protection afforded by the statutory requirement is one which is intended to cover inadvertence and even negligence and that it is important not to judge the actions of an honest workman too harshly."

59. I find the Plaintiff contributorily negligent to the extent of 15% in this case.

Quantum

Pain Suffering and Loss of the Amenity

60. I find that the Plaintiff's injuries come within the "serious injury" category set out in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

61. I have been referred to a number of previous decisions relating to hand injuries. I would refer in particular to Wong See-mo v Lam Nam Fui and Others [1991] 1 HKLR 361. In that case, the Plaintiff suffered less extensive amputation of three fingers (not his thumb) of his non preferred hand. The Court of Appeal found that his injuries fell within the lowest end of the "serious injury" category.

62. In my view, there is a significant difference between such an injury to a person's dominant hand (as in this case) and a person's non-dominant hand. The injury affects almost all activities of general living. Quite apart from the effect on his earning capacity it is particularly distressing for someone like the Plaintiff who was and is a vigorous and hardworking man and whose self image is closely connected to his physical abilities. The loss of his thumb is also a particularly aggravating factor in his injury.

63. I take into account the inconvenience the injury has occasioned to his everyday activities and the embarrassment he sometimes feels and that it affects his mood leading him to lose his temper more easily. I regard his injuries as coming within the upper half of the "serious injury" category. I award him $550,000 under this head.

Loss of Earnings

64. Assessment of the Plaintiff's pre and post accident loss of earnings is rendered particularly difficult in this case because of unsatisfactory aspects of the evidence as to the Plaintiff's earnings at the time of the accident and subsequently.

65. The report made by Madam Lau Wai Ling of the 1st Defendant on the Form 2 submitted to the Labour Department (which I accept was made on the basis of information given to the 1st Defendant by the 2nd Defendant) was that the Plaintiff was earning $84,000 per month inclusive of overtime on the basis of an average number of working days per month of 28 days (i.e. an average of $3,000 per day).

66. I am persuaded by the evidence of Dr James Lau of the 1st Defendant, who gave evidence of the amounts the 1st Defendant paid the 2nd Defendant based on work completed, that the Plaintiff was unlikely to have received such a sum as if the 2nd Defendant had paid its four formworkers equally, such wages would exceed what the 1st Defendant was paying to the 2nd Defendant in respect of the work.

67. Even the Plaintiff conceded in the course of his evidence that he was earning less than that but said he would not remember how much he was earning.

68. He did say however that such workers working at the airport would get $1,500-$2,000 per day. The figure of $1,500 is given some weight by Dr James Lau who said that according to his knowledge, which he would acquire for the purpose for tendering for contracts, the basic daily wage of a formworker carpenter in around March 1998 was between $1,200-$1,500 per day. That would not of course include overtime. The Plaintiff was very experienced and treated as a "Master" and as demonstrated by his conduct after the accident, a hardworking man. I consider it reasonable to infer he was earning at least $1,650 per day inclusive of overtime on the Centre Street project and taking into account Dr Lau's evidence of the demanding nature of the job for four formworkers, that he would have worked 28 days per month until the project was completed in December 1998 (i.e. averaging $46,200 per month).

69. The Plaintiff was given sick leave for 9 months up until 3 December 1998 and did not start work until January 1999. I assess his loss of earnings during that period as $450,000 (i.e. ($46,200 x 9) + $34,200).

70. The Plaintiff has not been frank in the past about the fact that he resumed work as a formworker. He now maintains that while he could and can work as a "formwork miscellaneous worker", he can no longer work as a "formwork Master". While treating his evidence with caution in view of the history of the matter, I consider that his evidence is probably accurate when he says that formworkers are paid at different rates even though working on the same project. Having seen his capacity to work on video film (which is impressive considering his disability), I consider that he is likely since the accident only to be able to command a wage at the lower end of the wage scale for formworkers and to be unable to take on contracts himself or with others.

71. We know from the Mandatory Provident Fund figures submitted by one of his subsequent employers that his average monthly earnings for the 10 months between March and December 2001 amounted to approximately $17,000. In the absence of convincing contrary evidence I infer that he has been capable of continuing to earn such wages until the date of trial.

72. In so far as the 26 months between January 1999 and March 2001 are concerned, I consider that the Defendant's estimate of average wages of $4,000 per month (on the basis of wages of $400 per day x 10 days per month) is likely to be underestimate taking this period as a whole. While accepting that he was able to find work on average about 10 days per month during that period, I find he is likely to be able to earn about $1,000 per day making average earnings of not more than $10,000 per month.

73. For the purpose of calculating his actual pre trial earnings for the period of 1 January 1999 until trial (39 months), I assess his actual earnings as no more than $481,000 (i.e. $260,000 (i.e. $10,000 x 26) + $221,000 (i.e. $17,000 x 13)).

74. If he had not sustained the injury, I consider it fair to assume that he would have been capable of earnings 20% more than the average daily wage for carpenters and joiners to reflect his expertise as a "master" and the fact that from time to time, he would work on a percentage basis having taken on a project himself with fellow workers.

75. I take the average daily wage of a formworker over the period from 1st September 1999 to have been $1,200. That is the figure given by the Hong Kong Construction Industry Employees Union for the years 1999, 2000 and 2001. The average wage appearing in the Table of Average Daily Wages of workers engaged in Government Building and Construction Projects in respect of carpentry and joiners for the same years is similar, namely $1,213 per day. I, therefore, have assumed that the Plaintiff would have earned $1,440 per day on an average of 17 days per month over that period ($24,480 per month).

76. Over 39 months he would have earned $954,720 when in fact he earned no more than $481,000 resulting a loss of $473,720. That figure together with his loss of earnings of $450,000 during his sick leave, results in a loss of pre trial earnings of $923,720. His tax liability in respect of earnings over that period would have been marginal bearing in mind he had a wife and 4 children and I decline to make any deduction in respect of tax in respect of pre trial loss of earnings.

Post trial loss of earnings

77. For the purpose of calculating the multiplicand in respect of post trial loss of earnings, I consider it appropriate to take $24,480 per month representing average earnings over the past 3 years if he had not met with his accident and deducting from it the $17,000 per month he was capable of earnings during March and December 1991 resulting in a monthly loss of earnings of $7,480.

78. I adopt a multiplier of 10 years. In reaching that figure I have taken into account changes in the formworking industry but also the fact that the Plaintiff is a hardworking man with young children who was and is likely to work to support them as long as possible. On an income of $24,480 per month with allowances for a wife and 4 children liability for tax does not arise. I award him $897,600 in respect of post trial loss of earnings ($7,480 x 12 x 10 years).

Mandatory Provdient Fund

79. The Plaintiff is claiming loss of contributions to the Mandatory Provident Fund on future earnings. I award him $44,880 under this head (i.e. $897,600 x 5%).

Loss of Earnings Capacity

80. This is the case in which there is a particularly significant loss of earning capacity.

81. Although the Plaintiff has shown remarkable determination in overcoming his handicap, it is a factor that will probably result him finding it increasingly difficult to find work as he gets older and as his physical strength declines. His evidence is that formworkers tend to go on working until no further work is offered to them. I consider it almost certain that his handicap will hasten that time for the Plaintiff. In addition, and in particular having seen film of him hammering in nails using his right hand to hold the hammer while holding a nail with his left, I agree with the comment of occupational therapist Mr Stephen Tam Chi Wai that he has a higher risk of injury than a normal worker.

82. These facts lead me to award him an additional 12 months notional earnings (at $24,480 per month) in respect of loss of earning capacity. I award him $293,760 under this head.

Hospital and Medical Expenses

83. Hospital and Medical Expenses in the sum of $2,948 are agreed. I award him that sum.

Travelling Expenses

84. Travelling expenses of $1,760 are agreed. I award him that sum.

Tonic Food

85. The Plaintiff claims $20,000 in respect of tonic foods. The Plaintiff's wife was unable to produce receipts in respect of this expenditure. She said that the particular foods were recommended by relatives and visitors to her husband. They were not given on medical advice. When it was put to her that she would not have expended $100 per day on these foods during the 2 months she gave them to her husband she said that she could not recall. I consider the figure of $5,000 suggested by the 1st Defendant to be reasonable in the circumstances and award that sum.

Loss of Society

86. The Plaintiff claims for loss of society to his wife resulting from the injury.

87. It is not appropriate to award anything under this head in respect of an injury of this type. I have taken into account relevant matters under damages for pain, suffering and loss of amenities.

Summary

88. In summary, I assess damages as follows:

I give judgment against both Defendants in the sum of $981,145. The Defendants are to pay interest on general damages at 2% per annum from the date of writ to judgment and on special damages at half judgment rate from the date of accident to the date of judgment, after deduction of any interest paid in respect of the Employees Compensation. After judgment interest will be paid at judgment rate until payment.

Apportionment of liability between the Defendants

89. There was nothing to contradict the evidence of Dr James Lau that as between the Defendants, the 2nd Defendant was solely responsible for the provision of the equipment and accessories for formworking including the circular saw and work bench and also for the hiring and dismissing of the regular and casual formworkers including the Plaintiff, devising his own system of work for his own workmen including the Plaintiff and supervision of his own workmen.

90. It follows that as between the Defendants the greatest responsibility for this accident must lie with the 2nd Defendant.

91. What cannot however be overlooked is the position of the 1st Defendant at the site. By reasons of its greater resources, it was expected to and was in a position to employ a supervisor and safety officer with greater experience of safety equipment currently available and the requirements of the current regulations and whose duty it was to monitor work practices on the site.

92. In the circumstances, I regard the appropriate apportionment of liability between the parties as the 1st Defendant 25% and the Defendant 75%.

93. I make the following order as to costs which will take effect unless any party applies to be heard on the question of costs within 14 days. The Plaintiff's costs to be taxed and paid by the 1st and 2nd Defendants. The Plaintiff's own costs to be taxed under Legal Aid Regulations.