SZE SING SIN v. HIP HING CONSTRUCTION CO. LTD.

HCPI1108/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1108 OF 1997

_____________________

______________________

___________________

J U D G M E N T

___________________

THE PLAINTIFF'S CLAIM

1. The Plaintiff claims damages for injuries sustained by him whilst employed by the Defendant as a labourer on a construction site situate at the Hong Kong University of Science and Technology, Tai Po Tsai, Sai Kung, Kowloon. The Plaintiff claims against the Defendant as the principal contractor in respect of the superstructure works at the said construction site and also as the occupier of the same. On 23rd March 1990 the Plaintiff was instructed to assist in the dismantling of wooden planks which had been erected along the four sides of a newly completed water tank on the 3rd floor of a building under construction on the said construction site. The said water tank was surrounded on all four sides by iron bars which protruded vertically from the ground to a height of approximately three feet. The said iron bars were approximately six to eight inches apart. The Plaintiff was required to walk through the space between the iron bars to reach the water tank and in the course of doing so the rear of his jacket was caught by one of the iron bars and in the course of attempting to free himself the Plaintiff lost his balance and fell into the water tank which was fifteen feet deep whereby he sustained serious injuries. The Plaintiff claims that the said accident was caused or contributed to by the negligence and/or breach of contract and/or breach of the common duty of care on the part of the Defendant, its servants or agents. Alternatively, the Plaintiff claims that the said accident was caused or contributed to by the breach of statutory duty on the part of the Defendant, its servants or agents under the Construction Sites (Safety) Regulations.

2. On the first day of the trial Mr Ismail for the Defendant told me that it was not denied that the Defendant was a contractor and that the Defendant's primary case was that the system of work was safe. He said that if the Plaintiff satisfied the Court that the system was unsafe, then the Court would have to consider whether the accident was caused or contributed to by the negligence of the Plaintiff.

EVIDENCE ADDUCED ON BEHALF OF THE PLAINTIFF

3. The first witness called by the Plaintiff was Mr Sze Kwok Leung who testified that he and the Plaintiff were workers of the Defendant at the construction site in Sai Kung. In March 1990 he was earning about $8,700 per month, including overtime and bonus and allowances. On 23rd March 1990 he and a group of workers were required to go to the 3rd floor of a building which was being constructed and on the 3rd floor a water tank had been constructed. They were required to dismantle the frame. There was a working platform around the sides of the water tank and the supervisor, Lee Ching Tak, told them to dismantle all of that. The working platform was made of wood. Around the water tank were iron bars which protruded out around the four sides of the water tank and the workers had to go one step down to dismantle the frame. According to the witness, the distance between the iron bars was six to eight inches, almost one foot. The bars were almost three feet from the ground. The workers had to pull the iron bars apart so as to walk through them. The iron bars were vertical.

4. The witness testified that the Plaintiff walked in front of him and the Plaintiff was wearing an upper garment with buttons. The upper garment was similar to a shirt and at the time was not tucked in. The witness saw the Plaintiff go through the iron bars and walked one step down. His upper garment was caught by an iron bar. He could not see his upper garment being caught and he took one step back and fell down to the bottom of the water tank. The witness testified that the foreman never instructed them on how they should dress when going through the iron bars nor did he instruct them on how they could safely go through the iron bars. He did not warn them of any dangers and just told them to go down to dismantle the wooden planks.

5. Under cross-examination, the witness said that he was sure that the Plaintiff did not lose his balance while in the course of freeing himself. He said he saw the Plaintiff trying to free himself after he was caught but failed. He tried to release the garment from the iron bar with his hand and the witness said he saw the Plaintiff trying to free his jacket from the bar and then fell. He said that after the Plaintiff managed to pull the jacket off the iron bar, he fell. He did not see the Plaintiff's other hand hold on the other bars. He said he saw the Plaintiff pull apart the iron bars with both hands before walking through them. He saw the Plaintiff pull the iron bars apart to the distance of about one foot. The witness said that when the Plaintiff walked through the iron bars, one bar bounced back and caught hold of the Plaintiff's garment and when the Plaintiff tried to release the bar, he fell.

6. The witness confirmed that at the time of the accident he was earning about $8,420 per month including overtime and extended overtime payments. In re-examination, the witness confirmed that the Plaintiff was wearing a T-shirt with buttons which the witness called an outer garment.

THE PLAINTIFF'S EVIDENCE

7. The Plaintiff gave his evidence in Minnan dialect and said he was 53 years of age. He testified that he started to work for the Defendant in the middle of October 1989. He worked everyday from 8 am to 5 pm at the University of Science and Technology and in addition had to work overtime. The overtime pay was $140 per day and the daily wage $125. If he worked everyday, then by way of bonus he would get two days' wages, namely, $250 for half a month, so for one month's continuous work, he could get an extra $500. His monthly salary at the time of the accident was approximately $8,400 to $8,500 per month.

8. On the day of the accident, the supervisor Lee Ching Tak instructed the Plaintiff to demolish the wooden frame where the water tank was built on the 3rd floor. At the time of the accident, Sze Kwok Leung was behind the Plaintiff. The Plaintiff was wearing a denim shirt with buttons in the front which were all buttoned up. The shirt was not tucked in. The Plaintiff had to go from the outside of the vertical iron bars to the inside thereof to do the dismantling. As he went through the iron bars, he pulled apart the iron bars and he was going to step onto the wooden plank one foot below the iron bars when his shirt was caught by the iron bar behind him. He was going to release the shirt with his hand but lost his balance and fell to the bottom of the water tank about 15 feet below. When he fell, his feet, buttocks and back hit the bottom of the tank. There were no warning signs placed at the spot of the accident to tell workers what they should do when walking through the iron bars. Neither Lee Ching Tak nor any other person gave the Plaintiff any instructions on what he should do when walking through the iron bars. He received no instructions from Lee or any other person in relation to safety when demolishing the planks.

9. The Plaintiff adopted paragraphs 20 to 37 of his statement. In the statement he mentioned that after the accident he was admitted into United Christian Hospital where an X-ray revealed fracture of his L3. On 25th April 1990 he was discharged and subsequently sent to the Haven of Hope Hospital where he stayed for one month. He was granted sick leave from 23rd March 1990 to 11th November 1991, a total of 599 days. A magnetic resonance imaging study was performed on him on 16th June 1992 which revealed a fracture of L3 with severe posterior displacement and a marked compression onto the nerve roots in his spinal canal. He also suffered the following:

a. Weakness of muscles over his left ankle;

b. Numbness, pins and needles over the medial aspect of his left thigh;

c. Sexual function impairment.

10. The Plaintiff said that had he not met with the accident, he would be expecting to earn about $16,408 per month, assuming an annual increase of 10 per cent in his earnings. Presently he was suffering from:

a. Constant back pain radiating to the lateral aspect of his right thigh;

b. Inability to lift heavy objects and pain on bending;

c. Pain over the medial aspect of the left thigh with numbness, pins and needles;

d. Impaired sexual function with difficulty in having a normal erection.

He incurred $53,327 expenses which he claimed as special damages.

11. After his sick leave expired he held various jobs from 12th November 1991 until 15th April 1997 at which he earned a total of $218,326.70. As from 16th April 1997 up to the present he was unemployed.

12. He stopped the physiotherapy after some sessions because he found the treatment to be painful and because he was getting no benefit from it.

13. He was recommended by a doctor of United Christian Hospital in 1990 to undergo an operation, but he declined to have the operation for fear that he might become paralyzed if the operation was unsuccessful.

14. The Plaintiff resumed work for the Defendant on 12th November 1991. When he commenced Employees' Compensation proceedings he was assigned heavy work by the company and he therefore resigned.

15. The Plaintiff still cannot squat, carry heavy objects and stand or sit for more than one hour. He still suffers from pain in the back of his legs and has to urinate frequently. In the winter, he feels very cold especially in the lower part of his body. In the summer, he cannot sit inside air-conditioned rooms because he would feel very uncomfortable. He has tried to find a job but has been unsuccessful. He returned to China between June to September 1993 and from 11th March 1994 to 14th July 1994 because he was unemployed and the living standard in Hong Kong was high and he wanted to be with his family in China. He said that but for the accident, he would continue to work as a construction site worker until his retirement at the age of 60 and thereafter to work as a watchman until 65 to 70.

16. The Plaintiff testified that he could not pass urine smoothly and when he lifted heavy objects or coughed or felt unwell, there would be involuntary dripping of urine. When he went back to work for the Defendant, he worked as an odd job worker and took care of sanitary or cleaning duties. He also did some nailing work of wooden planks but not heavy work. In March 1992 he applied for Legal Aid and commenced Employees' Compensation proceedings. The supervisor Lee Ching Tak then arranged for him to do heavy work which he was unable to do and under those circumstances he resigned. In May 1993, ten months after the Plaintiff resigned, the Defendant's lawyers wrote to the Legal Aid Department to offer the Plaintiff another job but the Plaintiff refused the offer, because he previously resigned due to being assigned heavy work by the Defendant. The principal contractor at the site where he worked was Hip Hing Company.

17. Under cross-examination, the Plaintiff said that the Workmen's compensation he received from the Defendant was $210,000. He was asked about the particulars which were filed in the District Court in the Employees' Compensation case, where it was alleged that at the time of the accident the Plaintiff was working on the rooftop of a building, demolishing the wooden planks on top of the completed concrete water tank. The Plaintiff said these particulars were incorrect and that he did not give those particulars to his solicitor in Legal Aid and his explanation of how those particulars were filed was that perhaps the solicitor misunderstood.

18. He was asked about Dr David T. Lee's report dated 22nd June 1992 where it was recorded that the Plaintiff was doing demolishing work at the time of the accident. The Plaintiff said he did not tell the doctor he was doing demolishing works but that he was going to demolish wooden planks when his garment was caught. He said that the doctor would not normally ask about the whole course of injury, only why the injury was sustained.

19. He was asked about a two-page statement written by himself in which he had used the phrase "upper garment" and he was asked why he did not say "outer jacket". The Plaintiff said that in Fukienese, "upper garment" refers to a T-shirt and shirt. He confirmed that on the day of the accident he was wearing an upper garment.

20. He was asked why in that statement he did not say that he lost his balance while attempting to free his garment and only said that he lost his balance when the iron bars hooked onto the back of his garment. The Plaintiff explained that the statement was written in the Defendant's office and a lady staff member of the insurance company had asked him to briefly write about the course of the accident as she was hardpressed for time. He said that he did not write that he lost his balance while trying to free himself because he was asked to hurry up and he felt that the most important thing was to write down that his garment was caught by the iron bar.

21. He was asked why in the statement of claim and in his witness statement, it was not mentioned that he himself had pulled apart the iron bars. The Plaintiff explained that the area of the tank was very big - 20 feet by 15 feet - and each worker approached it from a different angle, some went through the space already pulled apart by others, whereas at the place where he went through the bars had not been pulled apart so he had to pull them apart to walk through. He said that perhaps the staff of the Legal Aid Department who prepared the statement for him omitted to mention that last fact. He was asked why he said in the statement "I assessed the space between the iron bars was wide enough for me to walk through." The Plaintiff denied having said that. The Plaintiff said that he was sure that he did tell the Legal Aid Department clerk that he had to pull apart the bars to walk through. He was asked why in the statement he said "As I was in the course of walking through the space between the iron bars which were manually pulled wider apart (about 10 inches) by workmen" and he said that he did say that he had to pull apart the iron bars before he could go through but he did not know how that was put in the statement.

22. He was asked why he said in the statement "I tried to balance myself and placed both of my feet on the wooden planks but lost balance and fell into the said water tank". He was asked why he did not mention that he tried to release his shirt from the bar, lost his balance and fell. He said that he had to pull apart the iron bars, walked through the space, his shirt was caught and he tried to release it and all that happened in a short while. He said that he remembered he did mention it but he did not know if the person who wrote the statement omitted it. The Plaintiff denied that the reason why he gave evidence that he pulled apart the bars and tried to release his shirt from the bar was because his witness, Sze, had given evidence about these things.

23. The Plaintiff confirmed that around April 1990 a medical officer of United Christian Hospital recommended that he should undergo the operation and in 1997 it was mentioned again. On 25th April 1997 he refused the surgery. The Plaintiff said he did have discussions with doctors and asked them how risky the operation would be. They said they could not guarantee the safety and said that after he got the compensation he could seek help from doctors with advanced technology and the risk would be decreased but the money involved would be $200,000, so the Plaintiff thought it would be safer and less risky if he were to seek help from a specialist doctor. He was asked if he had done that and he said he had no money. He was asked why he did not have confidence in the doctors and he said firstly he was not told in detail of the reports of the doctors in the same way that he was told in Court, to enable him to have confidence in the doctors, and secondly he saw that a patient became wheelchair- bound after a minor bone operation. He said that another reason was the language barrier which did not enable him to fully understand what the doctors were saying. He said there might be communication problems because he was speaking Putunghua. He agreed that if the operation was 100% successful then he would have the operation and if there was no guarantee then he would not consent. He said that he then chose conservative treatment at the Haven of Hope Hospital. He was asked if he attended the physiotherapy treatment prescribed at the hospital and he said at first he did but he was given traction treatment which caused him pain so he returned to China and saw a herbalist. However, from January 1997 to April 1997 he returned to the physiotherapy treatment as he felt that his condition had worsened so he returned for the doctor to check. It was in October 1991 that he decided he would no longer have the physiotherapy. From October 1991 to January 1997 he did not attend physiotherapy at United Christian Hospital. The Plaintiff said that the physiotherapist had told him that since there was no improvement he could rest. He also said that in Government hospitals, if the patient said there was no improvement, the doctors would not bother about it.

24. He was asked about why he refused the Defendant's offer to re-employ him and he said that if he was told that Lee Ching Tak would not be his supervisor he would consider the offer. He said that there were other reasons such as when he was in hospital, no one from Hip Hing visited him and he was not paid the wages due to him. Whenever he needed money he had to go to the Defendant's office to borrow. He could not walk properly. The application for the loan had to await approval, so he had to go back a second time. He agreed that even before Employees' compensation was awarded to him he was paid $58,000 by the Defendant. He agreed that when he was employed by the Defendant after the accident, he was paid as a heavy load labourer but he was only given light duties. He was asked how much he earned after his sick leave expired and he said it was not as much as $250,000 but he would accept the figure of $230,000.

25. In answer to the Court, the Plaintiff said that none of the doctors told him how the operation would be done.

DR TSOI CHI WAH DANNY

26. Dr Tsoi was called and his three reports dated 17th March 1997, 10th July 1997 and 22nd December 1997 were marked exhibits P2, P3 and P4 respectively. Before preparing the first report Dr Tsoi had examined the Plaintiff on 15th March 1997 for 35 minutes. He found the following to be the present complaints of the patient:

a. Severe back pain even at rest, worse upon back bending, coughing, and sneezing;

b. Numbness over medial aspect of left thigh;

c. Weakness over left leg;

d. Weakness and stiffness over lower back, difficulty in lifting up heavy objects;

e. Stress urinary incontinence when coughing or lifting heavy objects;

f. Impaired sexual function.

27. Dr Tsoi found that after a lapse of seven years, persistent back pain and lower limb neurological impairment over the patient's left lower limb was still observed. On physical examination, there was a definite local tender spot over L3 level of the lumbar spine, which should be caused by the post-traumatic degeneration of L2-L3 level. He was of the opinion that an operation for decompression plus anterior spinal fusion from L2-L4 would be the best choice of treatment for pain relief and neurological improvement. The success rate should be about 80% but it carries certain operative risks, such as injury to the major blood vessels and nerves, infection and most importantly, non-union of the graft. If left untreated, the patient's present condition would be permanent and the chance of spontaneous recovery was remote. He found that the injury has rendered the Plaintiff to suffer from 19% permanent impairment of the whole body. If the Plaintiff received surgical intervention and the result was satisfactory the impairment would be reduced to about 15%. Until then, the Plaintiff would be unfit to perform any jobs that require weight lifting and carrying more than 20 pounds or prolonged back bending. Loss of earning capacity is estimated to be 30% which may be reduced to 20% if he chooses surgical treatment which is operated successfully.

28. In his report dated 22nd December 1997 Dr Tsoi expressed the view that it was not unreasonable for the Plaintiff to refuse surgery during his course of treatment in Queen Elizabeth Hospital.

29. In his evidence Dr Tsoi confirmed that the Plaintiff would suffer from continuous back pain and would have difficulty with heavy loads. He said that if the Plaintiff worked on a construction site, more stress and pain would persist. He could work as a watchman on a construction site provided he did not lift heavy objects. He would be advised not to lift objects weighing 10 to 15 pounds.

30. Under cross-examination, Dr Tsoi said that in the Plaintiff's case, at this point of time he would recommend surgery. When he was asked if damage to the vessels in the event of an operation was very rare, he said he knew of one case recently when that happened resulting in death. He said that every now and then he would hear of such a case. When he was asked about non-union of the attempted fused segments, he said he had seen it happen in 10% to 20% of the cases. He said that if the surgery to the Plaintiff was successful the back pain could be relieved. However he would advise the Plaintiff not to carry 30 - 40 pounds because it would cause stress to other sectors. Theoretically he would be able to carry 30 to 40 pounds but this would not be recommended. His assessment of impairment of the whole person was 15%.

31. In re-examination he said that a lot of patients refused surgery and would bear the pain and perform light duties.

MRS TSANG LAU KIT PING

32. This witness was called and she said that this was the tenth time she gave evidence in the High Court and she had written more than 1,000 reports. She is a registered occupational therapist and her occupational therapy evaluation report was produced as exhibit P5. The report is dated 28th April 1998 and showed that the Plaintiff attended on 21st April 1998 and 24th April 1998 for a total of eleven hours at the Hong Kong Occupational Therapy Clinic at 911 Champion Building, 301 Nathan Road, Kowloon. The report states the present complaints as follows:

a. Lower back pain which was stated to be constantly present and associated with right lower limb discomfort. He stated that there would be aggravation of symptoms upon:

(i) sneezing and coughing - pain in posterior aspect of both thighs (being slightly more severe on the right lower limb). Occasional bladder incontinence during sneezing and coughing.

(ii) when managing heavy loads. He stated that he could not manage loads more than 10 pounds - 20 pounds and often suffered bladder incontinence upon exertion.

(iii) when turning suddenly.

(iv) pain would sometimes be increased during the night, sometimes leading to insomnia.

b. He found that he would easily sprain his back such as during housework or during cold weather.

c. Reported that he was generally weaker and showed tendency to feel dizzy upon exertion.

d. Reported mild urinary incontinence.

e. Bowel incontinence.

f. Poor tolerance of prolonged sitting. When sitting with back support, he stated that he was able to sit for half hour and would then experience numbness at both lower limbs and tightness at the back.

g. Poor tolerance of continued prolonged walking, stating that he was only able to tolerate for half hour if walked in slow speed. There would be increase in back pain if he had to walk fast.

h. Poor tolerance of cold weather, fan and air-conditioning with increase in lower back pain.

i. Slight increase in back pain when walking slopes.

j. Needed to hold onto banister when walking stairs. Walking downstairs would be more painful than going up.

k. Poor tolerance of squatting for prolonged session.

l. Subjective reduction in strength of both lower limbs and he stated that the right lower limb was slightly weaker.

m. Numbness and diminished sensation of touch at medial aspect of both thighs.

n. Reduced agility of lower limbs.

o. Reduced endurance during sexual intercourse.

33. In the report it was noted that the Plaintiff was fairly deconditioned, probably due to fear of pain and inadequate education on his residual capability. It is considered that some improvement would be possible with work reconditioning programme. However, even with work reconditioning, he would still not be able to achieve his pre- injury level. If implemented in the private sector, estimated cost of such reconditioning programme would be $57,600.

34. Mrs Tsang considered that the Plaintiff would be able to do light casual work on a construction site but his current state of unemployment was probably due to the insufficient supply of jobs that he could cope with, due to the present poor economic climate. In the report it was stated that it was possible that he might have difficulty coping with a continuous full-time job and would require slightly increased rest days even if he was able to find a job. Endurance would be expected to be higher with work reconditioning, or "on-the-job reconditioning" with gradual increase in workload. The Plaintiff's loss of earning capacity was considered to be in the region of 50% - 60% at the current condition and may be reduced to 30% - 40% with successful reconditioning.

35. In Court the witness agreed that on the whole Sze's complaints were consistent with the history. He was able to tolerate more than half-an-hour sitting. She found that generally his performance was consistent and she equated that with genuineness. She was of the opinion that his complaint of his back injury was genuine. The test showed that he was able to manage to lift about 20 pounds of loads at various levels including elevated level. In relation to the Plaintiff being able to work on a construction site as a light casual worker limited to light load at the moment and possibly increasing to medium load in the future, Mrs Tsang said it would be difficult to find a job at construction sites at this level. In practice the Plaintiff may have difficulties because chances are he would be given heavy duties, consequently he may need more rest days than two in a week. Even though he was suitable for light load jobs, employers were likely to employ someone who could do the full range.

36. In cross-examination she agreed that the Plaintiff would have no difficulty with part-time light work, working for three to four days a week, and from 8.30 am to 6 pm each day. Whether he can work full time three to four days a week would depend on his condition. She said that constant pain at one level would be easier to control, but if the pain was chronic and at different levels, that would be more difficult to cope with. In the Plaintiff's case, the pain was up and down and the level of pain was not constant.

37. Before the Plaintiff's case was closed, a list of earnings prepared by the Census and Statistics Department was produced as exhibit P6.

EVIDENCE ADDUCED ON BEHALF OF THE DEFENDANT

DR. BRIAN CHOA

38. This witness, a neurologist who has practised for 14 years, was called and produced two reports dated 28 April 1993 and 7 May 1993 marked Exhibit D1 and D2 respectively. In his first report, Dr. Choa said 揟he first thing to say is that Sze has a condition which should be treated surgically and which is likely to respond favourably to this treatment. With successful treatment, and there is a high chance of this, Sze may be left with minimal permanent disability in the form of perhaps light restriction of movement to the spine and intermittent discomfort. Without this treatment, nerve root compression will not improve and may indeed deteriorate with the onset of arthritic or even ischaemic changes if the blood supply to these nerve roots is progressively compromised. Without treatment, Sze's disability is equivalent about 20% of his whole person with a corresponding loss of earning capacity. With best treatment, there is a chance of his permanent impairment may be reduced to 1-2% with a zero to five per cent loss of earning capacity." In his second report, Dr. Choa said that if the operation was successful, there was every chance that Sze's disability could be diminished to "almost 0" in 3 to 6 months.

39. In Court, he said that if the treatment was successful, there was a good chance of recovery of the sexual function and a good chance Sze would regain bladder control. As regards pain, he said the best result would be that the pain would be abolished, otherwise ameliorated. Dr. Choa expressed the opinion that there was an 80 to 85% chance Sze would improve after an operation and there would be partial improvement to complete cure. He said there was no chance of it being made worse. He said the operation would not be risky in terms of mortality. He said if Sze lost his incontinence and regained power in his leg, then he could return to his original work.

40. Dr. Choa was asked about Dr. Danny Tsoi's report and said that he had never seen damage to the vessels and injury to the nerve roots was quite remote. He said the nerve roots were behind the bones and the surgeon would be approaching from the front and would not have to touch the nerves. As regards non-union of the attempted fused segments, he said in his experience this was very uncommon. He said it only happened with old people or people with diabetes or the tissues were not clean. He said the operation could be re-done, the patient would still improve and from the neurological point of view, the patient would still be improved. He said that without the operation, there was no hope of recovery. He was of the opinion that Sze was a fit candidate for the operation.

41. In cross-examination, he agreed that an orthopaedic surgeon would perform the operation and that an assessment of the risk involved could best be done by the orthopaedic surgeon. He agreed that when he said in his report that there was a chance of the permanent impairment being reduced to 1% to 2%, he was basing it on a neurological point of view. Anything assessed by another expert would have to be taken into account and would be complementary to Dr Choa's assessment. He did not dispute Dr Danny Tsoi's opinion that if the Plaintiff received surgical intervention and the result was satisfactory, the permanent impairment of the whole body might be reduced to about 15%. Nor did he dispute the assessment by Dr Arthur Chiang that the total final percentage of impairment of the whole person was estimated to be at 16%. He agreed that when he said that there was no chance of Sze's condition being made worse by the operation, he was talking from the neurological point of view.

DR ARTHUR CHIANG SI CHUNG

This witness who was an orthopaedic surgeon since 1984, was called as the last witness for the Defendant. He produced five reports dated 19th January 1996 (Exhibit D3), 28th February 1996 (Exhibit D4), 29 September 1996 (Exhibit D5), 21st September 1997 (Exhibit D6), and 24th March 1998 (Exhibit D7). In his first report, he said that the anterior spinal fusion operation had a high success rate in Sze's situation and would be most beneficial for the symptomatic improvement for Sze. In Court he explained that high success meant an 80% success rate. In that report, Dr Chiang said that after the spinal surgery, as two motion segments would be fused, Sze might not be suitable for very heavy manual work, but he would be able to do a manual job which required the handling of moderately heavy objects.

42. In his second report, Dr Chiang said that the percentage loss of earning capacity was suggested to be at 15%. As regards the suggested operation, because of the fusion of the mobile spinal segment, the permanent impairment would not reduce to 1% or 2%. Because of the presence of a certain degree of permanent impairment, Dr Chiang did not think that the percentage of earning capacity would be as low as 0 to 5%.

43. In his last report, Dr Chiang said in decompression and fusion surgery of the spine, the chance of fatal complication was very low and the chance of injury to the nerve root and non-union of the fusion was present, but would be low in a carefully planned operation.

FINDING ON LIABILITY

44. The Defendant through its counsel has submitted that the Plaintiff has failed to prove his case on a balance of probabilities because there are a number of different and inconsistent versions of how the accident happened based upon the pleadings, documents, the witness statements of the Plaintiff and Sze Kwok Leung and their oral evidence. It was submitted that such inconsistencies preclude any finding that the accident occurred as a result of the negligence and/or breach of the common duty of care and/or breach of statutory duty.

45. I have considered carefully the evidence of Sze Kwok Leung and that of the Plaintiff and I have considered the alleged differences in the alleged five versions of how the accident happened. There was no evidence adduced by the Defendant on how the accident occurred and it is incontrovertible that the accident did occur and the Plaintiff did suffer injuries as a result of the accident. The Plaintiff in his evidence was asked about these alleged differences and has given explanations therefor. The various accounts of how the accident occurred were given by the Plaintiff to different people at different times and different levels of details were requested. Most of these accounts were recorded in English which the Plaintiff did not understand and the Plaintiff was a speaker of the Minnan dialect and so there would have been a lot of scope for misunderstandings and/or misinterpretations. Clearly the accident occurred as the Plaintiff was making his way through the iron bars and clearly as the Plaintiff walked through the iron bars his upper garment was caught by one of the iron bars and thereafter the Plaintiff fell into the water tank. I find that it was in the course of attempting to free himself that the Plaintiff lost his balance and fell into the said water tank whereby he sustained serious injuries. I find that this is not inconsistent with the Plaintiff losing his footing as he was about to take one step down and losing his balance and falling a split second later when he managed to unhook his upper garment. Neither the Plaintiff's witness nor the Plaintiff himself gave evidence that he ever attempted to place both his feet on the wooden plank one foot below the iron bars.

46. Criticism was also made of the fact that it was only in the Plaintiff's evidence in Court that he mentioned that he himself had pulled apart the iron bars before walking through them. The Plaintiff said in his evidence that he was sure that he did mention that fact to the staff of the Legal Aid Department who prepared the statement for him but perhaps they omitted to mention that in the statement. The Plaintiff's evidence on this matter was supported by his witness and I find that he did pull apart the iron bars before walking through them.

47. Both the Plaintiff's witness and the Plaintiff himself gave evidence that neither the supervisor nor any other person gave them any instruction on how they should dress when going through the iron bars or how they could safely go through the iron bars. They also received no instructions from Lee, the supervisor, or any other person in relation to safety when demolishing the planks. In General Cleaning Contractors Ltd v Christmas [1953] AC180 Lord Oaksey said at page 189,

"In my opinion it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen."

48. Lord Oaksey also said that it was well known to employers that workpeople are very frequently careless about the risks which their work may involve. At page 189 he continued,

"It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a Boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition."

49. At page 194, Lord Reid said,

"Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing. No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do."

50. It was also submitted by the Defendant that the means of access and egress and system of work were safe. It was the employer's duty to provide safe access and egress. The fact that it was common in construction sites to have iron bars closely placed making access difficult does not mean that it was safe and it does not excuse the employer's breach of duty. In Lai Chi Pon v Toto Steel & Iron Works Ltd & ORS [1997] 2 HKC 195, Cheung J. following Wilsons and Clyde Coal Co v English [1938] AC 57 and General Cleaning Contractors Ltd v Christmas (supra) held that an employer was required to provide, inter alia, a safe system of work, effective supervision and a safe place of work. Cheung J. also held that an employer could not expect his workmen to lay down and operate a system for themselves. Nor could he rely on the skills and experience of his workmen in discharging his duty of care.

51. In the instant case, access to the water tank was only through the iron bars and because the iron bars were so closely placed together, access could only be had by pushing apart the iron bars. Even when that is done, the access was limited. I find that it was foreseeable that a workmen's foot could get caught between the iron bars or his clothing could be caught by one of the bars which were three feet high, as in fact happened in this case. The risk was increased because of the probability of the bars bouncing back after being pushed apart. I find that it was also foreseeable that the workmen would be preoccupied with getting through the iron bars as quickly as possible so as to get on with their work. I find that the Defendant failed to provide a safe system of work and failed to exercise effective supervision over the Plaintiff. As the Court of Appeal in Law Wing Shing v Chung Fat Mechanical Works Co and Another [1988] 1 HKLR 435 said many cases indicated a principle that a workman should not be judged too harshly for momentary inattention to his own safety where the employer is basically at fault. I therefore find that the Defendant qua employer was in breach of its common law duty and its duty qua occupier. I also find that the Defendant was also in breach of its statutory duty under Regulation 38A of the Construction Sites (Safety) Regulations. In Larner v British Steel plc [1993] 4 AER 102 the Court of Appeal in England considering Section 29(1) of the Factories Act 1961 which is similar to our Regulation 38A of the Construction Sites (Safety) Regulations held that in a claim for a breach of statutory duty under the 1961 Act, the Plaintiff had to allege and prove injury from working at a place at which he had to work which was not made or kept safe, and the Defendant had to plead and prove that it was not reasonably practicable to keep the premises safe if he was to escape liability. It also held that reasonable foreseeability did not arise in considering under S. 29(1) whether a workplace was safe since the Section contained no reference to foreseeability and to imply such a test would reduce the protection afforded by the 1961 Act by limiting the success of a claim for breach of statutory duty to circumstances where a claim in negligence would also succeed.

52. Finally, it is submitted that the Plaintiff failed to take reasonable care for his own safety and therefore contributed to the accident. I am satisfied that the Plaintiff was not guilty of any contributory negligence because the Defendant, as I found above, did not provide him with a safe system of work thus requiring him to improvise to render the work safe. In Machray v Stewarts and Lloyds Ltd [1964] 3 AER 716, 721E where McNair J. stated:

" ... here I am dealing with a man who is skilled in this kind of operation, a man who, by his own admission, knows the right way to do the work and who would not expect in this rigging operation to be told by his charge-hand how to do the work. Nevertheless, he does use a method which, as I put to him, must have been plainly a method which, if not palpably or obviously dangerous, was quite obviously less safe than the method which he would have preferred to use. On the other hand, when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put any blame on him and I do not feel that, although the dangers of what I have called the make-shift arrangement become very apparent ... they were or ought to have been so apparent to the skilled rigger at the time as to necessitate that I should visit him with any responsibility for the accident. ... accordingly, in my judgment, the Plaintiff has succeeded in establishing a 100% liability."

FINDING ON QUANTUM

PLAINTIFF'S DUTY TO MITIGATE LOSS

53. The Plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the Defendant's wrong, and, if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided - paragraph 1193 of Vol. 12, Halsbury's Laws of England, 4th Edition.

Plaintiff's failure to undergo spinal fusion operation

54. In Marcroft v Scruttons, Ltd. [1954] 1 Lloyd's Rep. 395, Singleton LJ said,

" A man who is in an anxiety state may have difficulty in making up his mind, but on a question as to the treatment which he should have his mind is, or ought to be, made up for him by his own medical advisers. That is one of the purposes of having medical advisers. The patient would not know what he ought to do; the patient takes medical advice, and the patient ought to be guided by his medical advisers."

55. In McAuley v London Transport Executive [1957] 2 Lloyd's Rep. 500 Jenkins LJ said,

"Was the advice, and were the prospects of success of the proposed operation or treatment, clearly put to the Plaintiff, so that he, as a reasonable man, would appreciate that he was being advised that this treatment or operation would put him right."

56. In Richardson v Redpath Brown & Co. Ltd. [1944] AC 62 at page 72 Viscount Simon L.C. put the same question this way,

" ... the question whether a workman is unreasonable in refusing to undergo a surgical operation is not to be determined by considering whether the best medical opinion would think such an operation advisable or safe, but by judging whether it is proved that the workman, having regard to all the circumstances (including medical advice offered to him against the operation) was unreasonable in so refusing."

57. The Plaintiff was first told on 3rd April 1990 by a Dr Wong of the United Christian Hospital who recorded "the condition had been explained to the patient. Patient preferred conservative treatment rather than operation." In a note called the OPD Sheet of the United Christian Hospital dated 18th April 1997 the following is recorded, "he may be benefit from surgery for decompression. Patient has to discuss with family about the surgery." This note was made when the Plaintiff resumed follow-up treatment after a lapse of nearly five years. In the same sheet dated 25th April 1997 there is the note that the patient refused surgery. The Plaintiff said in his evidence that he declined to have the operation for fear that he might become paralyzed if the operation was unsuccessful. He said that he did have discussions with doctors and asked them how risky the operation would be. They said they could not guarantee the safety and said that after he got the compensation he could seek help from doctors with advanced technology and the risk would be decreased but the money involved would be $200,000.00, so the Plaintiff thought it would be safer and less risky if he were to seek help from a specialist doctor. When asked why he did not have confidence in doctors, he said firstly he was not told in detail of the reports of the doctors in the same way that he was told in Court, to enable him to have confidence in the doctors, and secondly he saw that a patient became wheel-chair bound after a minor bone operation. He said that another reason was the language barrier which did not enable him to fully understand what the doctors were saying. In answer to the Court, the Plaintiff said that none of the doctors told him how the operation would be done.

58. Subsequent to the institution of the present proceedings, the parties obtained reports from Dr David Lee, Dr Arthur Chiang and Dr Danny Tsoi, all basically recommending surgery apart from Dr Tsoi who mentioned certain possible complications and then said in the light of those complications it was not absolutely unreasonable for the Plaintiff to refuse surgery. Dr Tsoi in Court said that there were common misconceptions about the risks involved in such surgery and therefore there was the widespread preference of industrial workers to bear the pain and do light work where this was possible. The evidence of the Plaintiff was that the nature of the surgery, the chances of success and the low risk were never explained to him. His evidence was that Dr Tsoi's opinion that there was an 80% chance of success was never explained to him. In respect of the opinions of the three doctors which were obtained after the institution of the present proceedings, the Plaintiff said in evidence that the female clerk of the Legal Aid Department would simply telephone him to say that the reports had been furnished but the contents of the reports were not explained to him. He explained that the contents were never explained to him in the same way as they were in Court.

59. I find that the proposed operation or treatment and the prospects of success were never clearly put to the Plaintiff to enable him to come to a decision about what was clearly a matter of the greatest importance. I find that, having regard to all the circumstances, the Plaintiff was not unreasonable in refusing to undergo the operation.

60. As regards the allegation that the Plaintiff during the treatment period failed to wear a body jacket, the Plaintiff in cross-examination denied that suggestion that he had failed to wear the brace. He said he would wear it because it was "essential equipment to help me stand upright". As to physiotherapy, the Plaintiff explained that he had undergone this for about 20 months. The physiotherapy caused him pain and did not improve his condition. He spoke to physiotherapist who told him that since there was no improvement he could rest. Dr Tsoi said that in his opinion physiotherapy for more than 15 months would not be beneficial and that it was very common for patients to give up after 15 months. His opinion was that physiotherapy was only useful in the short term to reduce pain but in the long term it has no effect on the end result. I find that by giving up physiotherapy after 20 months when it caused him pain but did not improve his condition, the Plaintiff was not acting unreasonably.

61. After the accident the Plaintiff agreed to return to work for the Defendant and did in fact work for about eight months. I accept his evidence that the reason why he resigned was because after the commencement of the Employee's Compensation proceedings, the supervisor of the Defendant only assigned to the Plaintiff heavy duties which the Plaintiff was unable to perform.

62. I also find that the Plaintiff was not acting unreasonably in rejecting the Defendant's offer of employment. The Plaintiff had had to resign previously from the employment of the Defendant because he could not perform the duties assigned to him. The offer of further employment was only made after the parties were engaged in litigation and was made only after the lapse of ten months after the Plaintiff resigned.

THE PLAINTIFF'S PRE-TRIAL LOSS OF EARNINGS

63. I accept the evidence of Sze Kwok Leung that at the time of the accident he was earning about $8,420.00 per month including overtime and bonus and allowances. I also accept the evidence of the Plaintiff that his monthly salary at the time of the accident was about $8,400.00 to $8,500.00. Form 2 used in the Employee's Compensation case gave the Plaintiff's monthly earnings as $7,568.40. However, this form did not include allowances which the Plaintiff was entitled to. I accept the Plaintiff's evidence that but for the accident he would have continued working in the construction field until about 60 years of age, that is for another seven years, and then work for five to ten years as a watchman. As regards his post-accident earnings, I find that these come to about $230,000.00.

64. I find the pre-trial loss of earnings as follows:

	$8,420.00	salary + bonus + allowance
+	$16,755.00	salary as at September 1997
÷	2
x	98	months
minus	$230,000.00
TOTAL	$1,003,575.00

SPECIAL DAMAGES

65. There was no evidence as regards the advisability or suitability of bonesetter's fees and tonic food or that in fact they were incurred, so I allow only a nominal sum of $10,000.00 - Yu Ki v Chin Kit Lam [1981] HKLR 419 followed in King Light Industrial Ltd. v Lo Wai Keung [1994] 3 HKC 54. So for special damages I allow:

a.	Hospital fees	$ 2,767.00
b.	Physiotherapy	$ 280.00
c.	Traveling expenses	$ 280.00
d.	Bonesetter's fees and tonic food	$10,000.00
	TOTAL:	$13,327.00

THE PLAINTIFF'S POST-TRIAL LOSS OF EARNINGS

66. I allow a multiplier of five and therefore the future loss of earnings are:

67. $16,755.00 x 12 x 5

68. TOTAL     $1,005,300.00

Loss of earnings after 60 years of age

69. Taking the average monthly earnings of watchmen/guards in the different industries as provided by the Census and Statistics Department's figures for September 1997 I arrive at the average of $8,117.00, and upgrading it for inflation at 8%, the monthly salary is $8,766.00. From the age of 60, I find that the Plaintiff should be able to work for another five to ten years. However, because of the early lump sum payment, which this award would give him, I would use a multiplier of 3. Therefore under this head I award the Plaintiff the sum of $8,766.00 x 12 x 3 = $315,576.00. There will therefore be no award for loss of earning capacity.

PAIN AND SUFFERING AND LOSS OF AMENITIES ("PSLA")

70. Having regard to the injuries sustained by the Plaintiff and the fact that he still suffers from some of the consequences of these injuries, I award for pain and suffering and loss of amenities the sum of $485,000.00.

SURGERY AND REHABILITATION

71. I accept the Plaintiff's evidence that he would have the operation if it is the opinion of the specialist with whom he would discuss his case that he should have the operation. He also said in his witness statement which was adopted as his evidence-in- chief that he would undergo the physiotherapy recommended. I allow $110,00.00 for the surgery and $57,600.00 for rehabilitation.

SUMMARY

72. I therefore give judgment for the Plaintiff for the sum of $3,326,796.00 and the costs of the action to be taxed in accordance with the Legal Aid Regulations.