CHAN KIN KA v. SIU TUNG HUNG AND OTHERS

HCPI 570/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 570 OF 1998

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J U D G M E N T

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1. This is a claim by the Plaintiff for damages for personal injuries which he sustained in the course of his employment on 24th July 1995. The claim is made in negligence and for breach of employer's duty against both Defendants.

2. It is common ground that the Plaintiff was employed by the 1st Defendant as a painter. On the day of the accident, namely, 24th July 1995, the 1st Defendant lent the Plaintiff to the 2nd Defendant to work as a painter at a construction site at the Lamma Power Station at Lamma Island, Hong Kong. The 2nd Defendant was the main contractor at the site and the 1st Defendant was a sub-contractor of the 2nd Defendant. It is accepted by Mr. Pirie, counsel for the Defendants, that there is no issue on the question of the employment of the Plaintiff. It is accepted that on the day of the accident the 2nd Defendant owed to the Plaintiff the same duty of care as employer as the 1st Defendant did.

3. I heard evidence from the Plaintiff, Siu Tung Hung ("Siu"), who is a partner of the 1st Defendant, Dr. Paul M. K. Cheung ("Dr. Cheung") and Dr. Liu King Yu ("Dr. Liu").

Background

4. The Plaintiff was born on 1st October 1945. He is now 54 years old. He is man of limited education having completed primary 5 education in the Mainland. He was married in the Mainland in 1969 and has two children aged 28 years and 23 years. He came to Hong Kong in 1980 to seek employment whereas his wife and children remained in the Mainland. He worked for about 14 years in a restaurant as a dim-sum worker until he started working for the 1st Defendant in October 1994. A friend of his, Tsang Yue Fi ("Tsang") introduced him to the job he held with the 1st Defendant at the time of the accident. He was employed by the 1st Defendant as a painter since October 1994 and his normal duties were to remove rust from iron racks and then to paint them.

The accident

5. At the time of the accident, the Plaintiff said, and I accept, that he was working at a height of about 30 feet. He was on the supporting frame of a conveyor belt at the Lamma Power Station. Siu explained that this was a framework which was enclosed. The Plaintiff's job was to remove the rust from the screws in the framework at different parts and then to re-paint them. He was in the process of removing rust at the time of the accident.

6. The Plaintiff's evidence was that he had to use a hand held grinding machine to remove the rust and this was what he was using at the time. A similar type of machine was produced in evidence. This consists of a hand held machine with a detachable rotary wire head brush. The base of the handle of the machine had a clip for a plastic tube for the air line which provided the power to operate the machine. When it was turned on, the wire head brush would spin at a high speed and when pressed against the metal surface, the rust on the head of the screws would grind away. And with increased use of the wire brush, the metal wires would get shorter.

7. At the time of the accident, the Plaintiff's evidence was that he was wearing goggles. It was submitted by Mr. Pirie that the Plaintiff was probably wearing spectacles instead of goggles at the time. I reject that submission. The Plaintiff said, and I accept, that he was wearing goggles at the time of the accident. I find that he was wearing goggles at the time of the accident. I shall come back to these goggles later on.

8. In the course of his work that day, a piece of wire from the wire head brush flew into his left eye and injured it. The Plaintiff did not report the accident on that day to his employer but he went back to the Mainland on 25th July 1995 where his wife was living. He thought that the injury was not serious and that he would try to use some herbs to treat his eye instead of seeing a doctor in Hong Kong. However, the pain was so severe in his left eye that he had to cut short his trip and came back to Hong Kong on 26th July 1995 and went to hospital. He received emergency treatment of his left eye on 26th July 1995 at Kwong Wah Hospital and stayed there for one night. Subsequently, he underwent removal of his traumatic cataract on 28th July 1995 at Queen Elizabeth Hospital and stayed there for about a week. An intra-ocular lens was implanted on his left eye on 16th August 1996 at the Hong Kong Eye Hospital.

9. Counsel for the Defendants accepted that a piece of wire flew into the Plaintiff's left eye in the course of his employment. It is not accepted, however, that there has been a breach of the duty of care by the Defendants.

The goggles

10. The Plaintiff said in evidence that he was not provided with a pair of goggles by the Defendants to protect his eyes. He obtained his goggles from Tsang, his colleague. The Plaintiff's evidence was to the effect that in the course of the time that he worked for the 1st Defendant, he had obtained two goggles from Tsang. He said that he was not given instructions by anyone as to how to use the goggles. He also said that no one told him that he had to keep the goggles in good functioning order at all times and that no one instructed him that he should stop working if the goggles were not in proper functioning order. And he said that he was never warned that he might he punished or fired if he used defective goggles. He replaced the earlier one because it had been broken; by this, he meant that the bands had reached such a state that the goggles could not be used.

11. Siu also gave evidence that it was always the practice of his firm to issue goggles to employees to use when necessary. He said that everytime a new employee was employed he would personally issue him with a safety helmet, safety belt and a pair of goggles to work with. Siu also gave evidence, which I reject, that it was he who personally issued the protective equipment to the Plaintiff including a pair of goggles which he said were not made of glass but perspex. This is in conflict with the Plaintiff's evidence that the ones he used were made of glass and that he had obtained his goggles from Tsang. I believe the Plaintiff. There is no mention in Siu's witness statement that he personally issued the goggles to the Plaintiff and this was also not put to the Plaintiff in evidence. I do not believe Siu.

12. Siu also said that he told the workers where the tools and goggles were stored and that if they wanted replacements they could go and get them. His evidence was that these were stored in the air conditioned container where workers stored their tools and clothes after each day's work. The Plaintiff said, and I believe him, that he did not see new goggles stored in the container.

13. Siu also said in evidence that every Monday morning, the 2nd Defendant's engineer assembled all the workers and gave lectures on safety to them. These included instructions on the correct way to use the goggles. I reject this part of his evidence. These matters were not included in his witness statement. They were also not put to the Plaintiff when he gave evidence.

14. I am satisfied that the Plaintiff is an honest and truthful witness. I accept him as a witness of truth. I find that he was not provided with a pair of goggles by the Defendants. I find that the goggles he used during the time of his employment with the 1st Defendant were the ones made of glass which he obtained from Tsang. I find that he was not given any instructions by anyone as to how to use the goggles. I also find that no one instructed him that he should stop working if the goggles were not in proper functioning order.

15. The Plaintiff gave different versions in his pleading and in evidence as to whether the goggles that he was wearing at the time of the accident had side pieces on. Although he has given inconsistent versions as to this, I find that what he said in re-examination represents what in fact was the state of his goggles at the time of the accident. In re-examination, he said, and I accept this as evidence of the truth, that before the accident the goggles were not equipped with the side pieces as the side pieces were missing. And that the goggles had been in that state for about one or two days before the accident. I find that the Plaintiff had been using defective goggles for about one or two days before the accident in that the side pieces were missing. I also find that the side pieces were in that state at the time of the accident on 24th July 1995 and that because of this a piece of metal wire from the wire head brush flew into the Plaintiff's left eye causing him the injuries he sustained.

16. It is settled law that the duty of an employer to his employees is to take reasonable care for their safety. This duty is personal to the employee and is non-delegable. This duty is owed by the Defendants to each of its employees including the Plaintiff. All the circumstances relevant to the Plaintiff must be taken into account.

17. The Defendants' duty in this case was, inter alia, to provide a safe system of work for the Plaintiff and to provide effective and adequate supervision of the same.

18. Although there was a complaint in the pleadings that the hand held grinding machine used by the Plaintiff was in a dangerous condition, there was no evidence as to the state of the wire head brush at the time of the accident. There was no evidence to the effect that the hand held machine or the wire head brush used at the time of the accident were, by themselves, dangerous. However, having seen a similar type of grinding machine which was produced in evidence, it is plain to me that the process involved was a highly dangerous process. The Plaintiff worked on different parts of the framework at different heights. The Plaintiff operated the hand held machine with the wire head brush rotating at high speed a few feet from his eyes. By pressing the wire head brush which was rotating at high speed against the metal screw heads there was, in my view, a very high risk of wires from the wire head brush or rust from the screw heads flying into his eyes. It was imperative, in my judgment, that suitable protective goggles be worn by the Plaintiff. Goggles with side pieces missing were wholly unsuitable as these would not prevent the risk of injury to his eyes.

19. It was not enough, in my judgment, to simply provide him with goggles with instructions to wear them and to obtain a replacement when necessary. In any event, I have found that Siu did not supply the Plaintiff with goggles but that it was Tsang. Tsang was not a foreman but just a co-worker of the Plaintiff. The Plaintiff was a relatively inexperienced painter having only worked as a painter for about 9 months before the accident. He is a man of limited education as well as, according to my observations, of limited intelligence.

20. In my judgment, the Defendants should have given strict orders and carried out reasonable supervision to ensure that suitable goggles were worn by the Plaintiff. This they failed to do in breach of their duty to the Plaintiff.

21. Siu said that he visited the site everyday and saw the workmen including the Plaintiff there. Apart from seeing them in the morning, he went around the site with personnel from the Hong Kong Electric Co. Ltd. The purpose of this was to see if the work that had been performed by the workers was acceptable. Apart from him, his partner was also on the site. At the time of the accident, there were also two foremen supplied by the 1st Defendant at the site. I accept this part of his evidence. Siu also said in evidence that if he saw a worker wearing defective goggles without an eye piece, he would certainly ask him to get a replacement. Unfortunately, neither Siu nor his partner nor the two foremen at the site noticed that the Plaintiff was wearing defective goggles with the side pieces missing for a period of about one or two days before the accident. There was, in my judgment, a failure of reasonable supervision of a safe system of work. I find that the Defendants have been in breach of their duty of care to the Plaintiff and that the injuries to his left eye were caused as a result of this.

22. A number of authorities were cited including Bux - v - Slough Metals Ltd. [1973] 1 WLR 1358 and Qualcast (Wolverhampton) Ltd. - v - Haynes [1959] AC 743. Both these cases as well as the other authorities cited are all distinguishable on the facts. Nolan - v - Dental Manufacturing Co. Ltd. [1958] 2 All E. R. 449 is a useful illustration of a case where the court held that it was insufficient to discharge a duty of care simply by providing goggles. It was held in that case that there was an obligation on the defendants not only to provide goggles but also to give strict orders that they were to be used and to supervise workmen to a reasonable extent to see that the orders were obeyed.

23. Each case, of course, depends on its own facts and the circumstances of each case are different.

24. In the circumstances of this case, I am satisfied that the Defendants have failed to discharge their duty of care to the Plaintiff and are liable to the Plaintiff.

Contributory Negligence

25. Although the Plaintiff is entitled to succeed in his claim against the Defendants, he must, in my view, bear some responsibility for the injuries that he sustained. Mr. Yau, counsel for the Plaintiff, accepts this and submitted that contributory negligence should be no higher than 25%. I disagree. I think that it should be higher than that.

26. I do not think that the cases cited provide any useful assistance as each case depends on its own facts. In my judgment, the Plaintiff knew that he was using a defective pair of goggles at the time of the accident and been doing so for one or two days before the accident. There would have been no difficulty for him to go up to a foreman or to Siu who were at the site to obtain a replacement even though he did not know where replacements were kept. He did not do so but carried out his work wearing defective goggles. He failed to take reasonable care for his own safety.

27. In the circumstances of this case, I am of the view that contributory negligence on the part of the Plaintiff should be assessed at 40%.

Plaintiff's Injuries

28. Dr. Emily Leung in her medical report dated 17th June 1997 stated that the Plaintiff received an emergency repair of his left eye on the same day as he went to hospital, namely 26th July 1995. He subsequently underwent removal of his traumatic cataract on 28th July 1995. A secondary intra-ocular lens was implanted on 16th August 1996. According to Dr. Emily Yeung, he sustained 10% ophthalmic disability to his left eye.

29. Dr. Cheung in his medical report dated 26th February 1999 set out the medical history. He also said that after the surgery for the implantation of a secondary intra-ocular lens was performed on 16th August 1996, there was some improvement in his eyesight. Although the Plaintiff had good eyesight in both of his eyes before the injuries, he complained of blurring of vision in his left eye. The Plaintiff's evidence, which I accept, was that he occasionally used reading glasses before the accident but now he has to wear them all the time.

30. According to the said report of Dr. Cheung, the visual acuity was 6/24- which is 50% of normal. This could be corrected to 6/9- (88% of normal, or 12% disability) with lens of power -0.50-2.50x20°i.e. myopia of 0.50 dioptre and astigmatism of 2.50 dioptre. A scar was seen at the time of Dr. Cheung's examination on 24th February 1999 measuring about 1mm x 2.5mm at the para-axial area of the cornea at around 1 to 2 o'clock position. This was probably the site of the original foreign body injuries. There was a very small scar of about 0.2mm at para-axial area at 6 o'clock position with some pigmentation on the scar. There was a well healed wound of previous cataract surgery and there were still 3 stitches at the wound. There was also a pterygium at the nasal conjunctiva covering about 2mm of the peripheral cornea. This was, as Dr. Cheung explained, not injury related. A similar condition was found in his right eye and was the kind of degeneration found in middle aged or elderly people.

31. Dr. Cheung explained that after the injury there was a development of cataract which meant that the lens became opaque. This resulted in a marked blurring of vision. Surgery was performed to remove the lens and subsequently replaced by an intra-ocular lens. Unlike the normal lens of the eye, the intra-ocular lens was rigid and therefore had no auto-focusing capacity. This meant that the patient could only see things far away but required reading glasses for close objects.

32. The left eye was pseudophakic i.e. the crystalline lens had been removed by surgery and replaced by an intra-ocular lens. There was also mild thickening of the posterior capsule. There was persistent blurring of vision in the left eye.

33. According to Dr. Cheung, the corrected visual acuity in the Plaintiff's left eye could be corrected to 6/9 - which is usually considered to be 88% of normal in ordinary phakic eyes i.e. eyes with normal crystalline lens. However, according to Dr. Cheung, pseudophakia is considered to be an additional impairment in visual acuity. The visual activity is decreased by 50% in pseudophakic eyes according to the 4th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association ("the AMA Guide"). Dr. Cheung explained in evidence that the reason for this is that despite an apparently good visual acuity on a test chart performed in a clinic where there is a bright background with clear solid letters, this has no relation to what a person with a pseudophakic eye can see in the outside world because of different colours. Ophthalmologists accept that for people who are pseudophakic, the visual function of the eye is only half of what they can see. In other words, a man with a normal crystalline lens would have 2 times as good visual function as a man with an intra-ocular lens. The reason for this decrease in a pseudophakic eye is that there is more light scattering and a greater likelihood of glare, diminished contrast sensitivity and spherical aberration than with a normal phakic eye.

34. Dr. Cheung was of the opinion that the best corrected visual acuity of the Plaintiff's left eye was 6/9- which in normal phakic eyes is considered to be equivalent to 88% of normal. Since the eye was pseudophakic, the visual acuity of the left eye was considered to be 44% i.e. half of 88% of normal and the permanent disability is thus 56%. Although in his original report dated 26th February 1999, he was of the opinion that there was an additional 4% disability of the left eye because of the scar covering part of the pupil, Dr. Cheung revised this subsequently by agreeing that this additional 4% disability should not be included after having read Dr. Liu's report dated 19th April 1999.

35. Dr. Cheung was of the opinion that the Plaintiff was suffering from a 56% disability in the left eye which was equivalent to 30% loss of earning capacity and 28% loss of the whole person.

36. Dr. Liu in his first report dated 3rd October 1998 found in his examination of the Plaintiff on 30th September 1998 that the left eye suffered 15% loss of vision as he had 6/12 vision in the left eye. He found that the corneal scars together with the cataract operation would have induced about 2 D astigmatism in the left cornea.

37. There is no dispute on the injuries sustained by the Plaintiff. However, Dr. Liu estimated that as a result of the accident, the Plaintiff had a 20% overall permanent loss of visual function in the left eye. The permanent disability of the whole person was 10%. The loss of earning capacity was also 10%. Both doctors agreed that the reduction in the Plaintiff's left eye vision was permanent and further surgery would not improve his vision. However, Dr. Liu was of the opinion that the Plaintiff should be able to return to his pre-accident job as a construction site worker. It was also agreed by both doctors there was a high chance that the Plaintiff would develop thickening of the posterior capsule in the left eye in which case a YAG laser capsulotomy was required which would cost about $5,000.

38. In his second report dated 19th April 1999, Dr. Liu expressed the view that the Plaintiff had a 55% loss of central vision in the left eye. He also expressed the view that according to the AMA Guide, the Plaintiff had a 14% permanent impairment of the visual system, and a 13% permanent impairment of the whole person. He estimated that the Plaintiff had a 13% permanent loss of earning capacity. When he gave evidence, however, Dr. Liu pointed out that what was contained in his first report was his opinion but that what was in his second report was not his opinion but only his comments on Dr. Cheung's report. In evidence he maintained his views as set out in his first report that the permanent disability of the whole person was 10% and that the loss of earning capacity was also 10%.

39. I accept the evidence of Dr. Cheung and reject the evidence of Dr. Liu where the two doctors disagree. I was impressed with Dr. Cheung's testimony and accept his evidence. On the question of the loss of central vision in the left eye of the Plaintiff, the loss of earning capacity and the permanent disability of the whole person, I accept the evidence of Dr. Cheung and reject the evidence of Dr. Liu.

40. Dr. Cheung explained, and I accept this, that most opthalmoligists in Hong Kong would not follow Table 6 and Table 7 of the AMA Guide and that he disregarded those two tables in arriving at his opinion. I am satisfied that Dr. Cheung was not, as was suggested by Mr. Pirie, confused with the loss of earning capacity set out in the Employees Compensation Ordinance in arriving at his conclusions.

41. I am satisfied on the evidence of Dr. Cheung, which I accept, that the Plaintiff's loss of earning capacity was 30% and that he had a 28% loss of the whole person.

42. I find that the Plaintiff's loss of earning capacity was 30% with a permanent disability of the whole person at 28%.

43. I also accept the evidence of Dr. Cheung that it would be dangerous for the Plaintiff to work at heights because of his impairment of judgment of distance due to the defective left eye. It was also dangerous for him to work outdoors in sunny conditions as the sun may cause glare causing transient blurring of vision. Dr. Cheung was of the opinion that it was dangerous for him to work from heights or operating any potentially dangerous machinery. Dr. Liu said that the Plaintiff could go back to his pre-accident job as a construction worker. However, I prefer the evidence of Dr. Cheung to that Dr. Liu and find that the Plaintiff could not have gone back to his pre-accident occupation as a construction worker doing painting work.

Pain, suffering and loss of amenities ("PSLA")

44. Both counsel submitted that the injuries fell below the "serious injury" category. I agree. Mr. Pirie at first suggested that the sum of $350,000 would be sufficient under this head but later revised that down to $300,000. Mr. Yau, suggested that the figure should be $420,000. I assess damages under this head at $350,000. The Plaintiff should get corrective lenses and change his spectacles as soon as possible so as to improve his vision in the left eye. He said that he was still using the same pair of spectacles as he did before the accident.

Special Damages

45. This has been agreed in the total sum of $5,015 consisting of medical expenses, travelling expenses and tonic food. Special damages are, therefore, assessed at $5,015.

Pre-trial loss of earnings

46. It was agreed that the Plaintiff was paid $390 per day and that he worked 26 days per month at the time of the accident. The Census Statistics figures were also agreed which show that a painter earned $617.50 per day in July 1995 and $815.10 per day in September 1998. It was, however, disputed that the Plaintiff was entitled to any pre-trial loss of earnings.

47. It was submitted by counsel for the Plaintiff that the pre-trial loss of earnings should be assessed on the basis that the Plaintiff's earnings as a painter would have been increased in line with the general body of workers practising in the same trade. On this basis, the Plaintiff would have been able to earn, at the time of trial, a daily wage of $514.80 or a monthly sum of $13,384. There was no real dispute on these figures. The Plaintiff found work as a caretaker from March 1996 and is in still in employment with the same company. He has been a caretaker since 3rd March 1996. He has had an increase in wages, at first from $4,510 to $5,400 per month and since May 1999, to $6,250 per month. The actual amount earned after the injury was a total sum of $211,531.20. There is no real dispute about this either.

48. I am satisfied that the Plaintiff is entitled to the full pre-trial loss of earnings claimed. I am satisfied that he could not return to his pre-accident work as a construction worker doing painting work. It was reasonable, in my judgment, for him to find work as a caretaker. The pre-trial loss of earnings calculated up to 30th June 1999 therefore amount to $552,814. ($13,384, his monthly earnings on 30th June 1999 + $10,140, his pre-accident monthly earnings, divided by 2 to arrive at the median figure of $11,762 per month. Over 47 months, this comes to $552,814). From this sum should be deducted the sum of the actual earnings of $211,531.20 making an award under this head of $341,282.80.

Future loss of earnings

49. I assess future loss of earnings as follows: $13,384 being the monthly earnings he would have been earning at the time of trial as a painter, less $6,250 per month which he was actually earning at the time of trial to arrive at a multiplicand of $7,134. Mr. Pirie submitted that the multiplier should be 6 but Mr. Yau submitted that it should be 8. In my judgment, a reasonable multiplier to adopt in this case is 7, bearing in mind that the Plaintiff is now 54 years old and that he would have continued working as a construction worker until he was 65 years, which I accept. I award future loss of earnings in the sum of $599,256.

Future loss of earning capacity

50. The Plaintiff has not informed his employer of his impairment and he is afraid that he will lose his job. Because of his age, he anticipates that there will be difficulty in finding alternative work. There is no evidence that he has been in and out of work in different jobs since the time he started working for his present employers. However, I accept that on the evidence there is a real risk that he may lose his job during the rest of his working life. I am of the view that he is entitled to an award for future loss of earning capacity. Mr. Pirie submitted that the figure should be under $50,000 whilst Mr. Yau submitted that $150,000 was reasonable. Doing the best I can, I award $80,000 under this head.

Conclusion

51. The total damages are as follows:

PSLA	$350,000.00
Special Damages	$5,015.00
Pre-trial loss of earnings	$341,282.80
Future loss of earnings	$599,256.00
Future loss of earning capacity	$80,000.00
	$1,375,553.80 ==========

52. This is to be reduced by 40% because of the Plaintiff's contributory negligence making an award of $825,332.30. It has been agreed by Counsel that credit should be given to the Defendants by deducting from the said award the sum of $77,480 being the Employees' Compensation payment to the Plaintiff together with interest thereon from 24th March 1998 to date of judgment at the rate of 5% per annum. Judgment is given to the Plaintiff for the said sum of $825,332.30 less the sum of $77,480 plus interest thereon from 24th March 1998 to date hereof at 5% per annum. There will be interest on general damages at 2% per annum from date of writ to date of judgment and on special damages at 5% per annum from date of accident, namely, 24th July 1995, to date of judgment.

53. There will also be an order nisi for costs in favour of the Plaintiff. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.