CHAN WING v. CHAN WAI HUNG t/a HOLLY ENGINEERING CO

HCPI 167/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 167 OF 2012

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J U D G M E N T

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THE ACCIDENT AND THE CAUSES OF ACTION

1. This action arises out of an accident that took place on certain office premises that were under renovation.  In the afternoon of 14 October 2010, on the office premises at 16^/F, Shun Hing Centre, 8 Shing Yiu Street, Kwai Chung, New Territories, the plaintiff was found unconscious on the floor inside a room (“the Site”) following a loud noise of something falling heard from outside the Site.  A ladder was found resting on top of and parallel to the plaintiff’s body.  One of the plaintiff’s feet was protruding through the rungs of the ladder, which did not have an opening restraint device.  The plaintiff was taken to hospital, where he later underwent emergency operation to remove the blood clot caused by subdural haemorrhage.  He claims to have suffered serious head injuries as a result of falling from the ladder.

2. The defendant was the appointed contractor for the renovation project in relation to the Site as well as another room on the same premises which was to be converted from a conference room to other uses.  There was plastering and painting work left unfinished on the Site by a previous sub‑contractor that remained to be completed.  Before the accident, the plaintiff had over 30 years of experience as a plastering and painting worker in the construction industry.

3. The plaintiff claims under three causes of action, namely:

(1)  breach of employer’s common duty of care;

(2)  breach of occupier’s liability under the Occupier’s Liability Ordinance, Cap 314 (“OLO”); and

(3)  breach of statutory duty under the Construction Sites (Safety) Regulations, Cap 59I (“CSSR”).

4. The dispute on liability between the parties centered on why the plaintiff was on the Site and what he was doing there immediately before the accident.  The plaintiff maintained that he was employed by the defendant to do plastering and painting work on the Site, and he had fallen from the ladder while he was at work.  The defendant, on the other hand, denied that the plaintiff was employed to work there on that day.  He

asserted that the latter was only invited to attend the Site in the morning to inspect the Site and to give a quotation of the plastering and painting work to be completed, and that he remained on the Site only because he agreed on a friendly basis to wait for delivery of some building materials.

ISSUES ON LIABILITY

5. The following issues on liability fall to be decided:

(1) Whether the plaintiff was working on the Site at the time of the accident.  If not, the defendant is not liable.

(2) If the plaintiff was working on the Site, whether he was an employee or an independent contractor of the defendant. Subject to causation being established under (3) below, if he was working merely as an independent contractor, the defendant would be liable only for breach of occupier’s liability and breach of CSSR, and if he was working as an employee, the defendant would be liable under all three heads.

(3) Whether the injury was caused by a fall from the defective ladder at the Site.  If the injury was not caused by the plaintiff falling from or with the ladder, but by his passing out due to his own pre‑existing medical condition, the defendant would not be liable.

6. The breaches of duty alleged to have jointly caused the injuries are:

(1) The failure to provide, place and keep in position for use a sufficiently strong or suitable ladder or other means of support for the plaintiff to perform his work.  The defendant caused, permitted or required the plaintiff to work alone at height whilst the ladder provided by the defendant for standing on was unstable and shaky.

(2) The failure to ensure that suitable protective equipment, including a safety belt and/or safety helmet was provided to the plaintiff in order to carry out his duty safely.

7. No issue is taken on the applicable legal principles on employer’s common duty of care and the implied terms of the contract of employment, as set out in the plaintiff’s written closing submissions.

8. In respect of the claim under OLO, it is not disputed that:

(1) the defendant, as the contractor in control of the Site, was an occupier of the Site at the time of the accident; and

(2) the plaintiff was a visitor invited onto the Site

9. There was no dispute that:

(1) the Site was a “construction site” within the meaning of Regulation 2 of the CSSR;

(2) the construction work on the Site was managed, organized, and supervised by the defendant as the contractor for the construction project;

(3) the work the plaintiff alleged he was carrying out on the Site, namely, plastering and painting work, was “construction work” within the meaning of section 2 of the Factories and Industrial Undertakings Ordinance, Cap 59; and therefore

(4) that the defendant owed the following statutory duties under Regulation 38A of CSSR–

“(1) Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall, so far as reasonably practicable -

(a) identify the hazardous conditions of persons working at a height in the construction site;

(b) rectify any hazardous conditions of persons working at a height in the construction site; and

(c) safeguard any person working at a height in the construction site against all hazardous conditions.

(2) The contractor responsible for any construction site shall ensure that, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained.

(3) Subject to paragraph (4), the contractor responsible for any construction site shall take suitable and adequate steps to ensure that, so far as is reasonably practicable, no person gains access to any place on the site where any hazardous conditions are present.

…

(4A) For the purpose of this regulation, ‘hazardous conditions’ (危險狀況) includes the following conditions that may give rise to a risk of persons falling from a height-

(a) unprotected edge or opening at a place of work;

(b) improper design and construction of a place of work;

(c) inadequate or insecure support or anchoring of a place of work;

(d) improper maintenance of a place of work;

(e) any working platform (other than a suspended working platform) that fails to comply with the provisions of the Third Schedule applicable to it.

(5) For the avoidance of doubt, it is hereby declared that-

(a) paragraph (4A) does not prejudice the generality of paragraphs (1), (3) and (4)…”

10. For the purpose of breach of statutory duty, it is not in dispute that the extent of the liability of the defendant for breach of statutory duty will be the same whether the plaintiff is found to be an employee or an independent contractor, the defendant being the class of persons the relevant regulations were imposed to protect: see Rainfeld Design & Associates Ltd v Siu Chi Moon (2000) 3 HKCFAR 134.

11. At the trial, the defence case against the alleged breaches of CSSR was run only on the basis of lack of causation.  The defendant contends that that the plaintiff was not employed to do any work on the Site, and that if he suffered any injury while on the Site, it was due to his own pre‑existing medical condition on that day, or due to the medication he had taken for his condition.  The defendant admits the ladder was unsafe, but disputes the plaintiff fell from or with the ladder.  Alternatively, the plaintiff argues that the plaintiff could not have been reasonably foreseen to be climbing the unstable ladder, as it was not necessary for the purpose of the tasks he was invited onto the Site to perform, namely, to inspect and give a quotation for the outstanding work, and to wait for delivery of materials.

12. While contributory negligence on account of the plaintiff’s pre-existing medical condition and the medication he might have taken on that day was relied on in the Defence and briefly referred to in para 55 of the defendant’s Opening Submissions, counsel for the plaintiff Mr Shum points out that no case on contributory negligence was put to the plaintiff in cross‑examination.

13. One feature in this action that was no doubt conducive to the existence of the polarised versions of facts put forward by the parties on the issue of employment relationship is the fact that there was no effective insurance coverage for the industrial accident that took place on the Site.  I have been informed by counsel for the plaintiff that only a finding of an employment relationship will qualify the plaintiff for recovery from the Employees Compensation Assistance Fund Board in the event that the defendant fails to satisfy the judgment debt or any part thereof.  However, for the avoidance of doubt, my findings on the facts are in no way affected by the possible need of the plaintiff to resort to the Fund in the event that the defendant is found liable.

ANALYSIS ON LIABILITY

14. The three issues of fact identified above are inter‑related issues that should be examined together in that the finding on one issue could impact on the finding of another.  I would begin the examination with the evidence on how the plaintiff was discovered in the room immediately after the accident.

Was the plaintiff working on the Site?

15. Defence witness 劉惠芬 (“Miss Lau”) was employed as a receptionist of Shun Hing, the company that occupied the office premises where the Site was.  Before the trial of this action, she was summoned as a prosecution witness in proceedings in the magistracy where the defendant faced charges under four summonses related to the accident.  The defendant was acquitted on the basis that the charges could not be proved beyond any reasonable doubt whether the plaintiff was employed. Rather unhelpfully, the transcript of her evidence, mostly in the form of cross‑examination by counsel for the defendant in those proceedings, were adopted as the contents of her witness statement exchanged in this action.  Be that as it may, her evidence tends to support the plaintiff’s case in the following points:

(1)  The Site was under decoration at the time of the accident.

(2)  The nature of the work under way was plastering or painting, although she did not detect odour of paint emitting from the room on that day.

(3)  The defendant took the plaintiff to the Site some time after 10 am on the day of the accident.

(4)  At about 1.25 pm a colleague of hers told her that a noise was heard from the Site that suggested something had fallen, and suggested that she checked inside the room.

(5)  The door of the room at the Site was ajar.  She found that the plaintiff had fallen onto the floor, with the back of his head against the floor.

(6)  One of his legs was stuck through the rungs of a five‑rung ladder, while the ladder was rested over and parallel to his body.

(7)  She immediately dialled 999 to call for an ambulance.

16. There is no dispute that on the day of the accident on the Site, there was a ladder, being one of the two shown in photo 2 in the appendix to the Accident Report prepared by the Occupational Safety Officer Chan Pui Lam.  According to the report, the ladder was:

“… not provided with suitable ‘opening restraint device’ to secure the legs of the ladder from sliding or collapsing. Instead, there was only string being tied at the second bottom rungs on both sides of the ladder. The ladder became unstable when there was not provided with a suitable ‘opening restraint device’. Plastering work had to be conducted on the wall up to the level of the false ceiling… The work could not be safely done on or from the ground… Therefore, the risk of collapse, overturning or accidental movement of the ladder for [the plaintiff] to plaster the wall at height was reasonably foreseeable.”

The Officer further stated that no safety helmet was provided.  Under cross‑examination at trial, the defendant agreed that the ladder left at the Site was unsafe, and no safety helmet or safety belt was provided to the plaintiff.

17. Defence counsel, Ms Leong, relied on Miss Lau’s evidence that she heard no noise of work being carried on and detected no odour of paint emitting from the Site on that day, nor did she notice the plaintiff holding any tools in his hands or if there were tools lying around near his body when he was discovered lying on the floor.  In answer to Mr Shum’s questions in re‑examination, Miss Lau said that when she found the plaintiff in the room, he was already unconscious, and her top priority was to find help.  She accepted that she simply did not pay attention to whether there were tools lying about in the room or near the defendant’s body.  She accepted that the reason why her statement to the labour department was that she “had no impression” of the presence of tools for plastering or painting on the floor in the room was because she did not pay attention if there were any.  In answer to the questions of Ms Leung for the defendant in re-examination, she reiterated that she did not really look at the floor at the time of discovering the injured.  She did not return to the room after calling “999”.

18. I find Miss Lau a witness who gave a truthful account to the best of recollection in order to assist the court.  At the time of the accident, she would have been more concerned about getting help for the unconscious workman in the room.  She would have had no reason to pay attention to any tools, particularly plastering tools that were not large in size, lying on the floor in the room.  If she had intended to survey the room for any articles on the floor and had made a mental note that there was none, she would have been expected to give reasons as to why she noticed their absence at all.  Instead, she had explained in cross‑examination, and repeated in re‑examination, that when she said in the statement to the labour department that she had “no impression” of seeing any tools in the room, she said so simply because she had not paid attention to whether there were any. I find her explanation convincing, and I accept it as the truth.  I also find the fact that she did not notice any smell of paint or heard any noise before the plaintiff fell is inconclusive on whether plastering works was indeed being carried out on the Site by the plaintiff at the time. Given the nature and the scale of the work said to have been carried out by the plaintiff alone, it was not surprising that paint was not smelled or noise was not heard from outside.  Accordingly, I would not give any weight to the answers she had given in this respect while under cross-examination at the trial in the magistracy of the industrial summons issued against the defendant.

19. More importantly, her evidence of the posture and the position in which the plaintiff was found on the floor, the position and orientation of the ladder in relation to his body, and the position of one of his feet in relation to the rungs of the ladder all point to a high likelihood of the proposition that the plaintiff was standing on the rungs of the ladder just before he fell with the ladder and landed on the floor.  The noise of the fall that was heard by Miss Lau’s colleague who alerted her was also consistent with the above proposition.

20. Furthermore, the type and severity of injuries suffered by the plaintiff was consistent and corroborative of the proposition that the plaintiff had fallen from height from or with the ladder.  Besides, the position of his head was not close to any wall or standing hard surface when he was found.  After he regained consciousness following his rescue, he kept complaining of a severe headache.  His condition deteriorated rapidly while in hospital awaiting examination.  His headache increased while his level of consciousness decreased.  A computerised tomographic scan done showed a right‑sided subdural haemorrhage, bruising or contusion of the brain and skull vault and facial bone fractures. Emergency surgery had had to be undertaken the same night to evacuate the blood clots.

21. On the other hand, in the light of the above evidence, I find it most unlikely that the plaintiff’s injuries were caused by the plaintiff somehow bumping his head on some hard surface in the room while standing around without doing any work.  If he was not using the tools to do plastering work as he said he was, his hands would more likely than not have been free to grab for support or instinctively to reach out against the nearest wall or window in order to prevent his head coming into a high impact collision with any hard surface.  Further, the fall was far more likely than not to be associated with the use of the ladder on the Site, as it would not otherwise be easy to explain how his feet got entangled with the rungs of the ladder as described by Miss Lau.  I shall deal with the allegation of the fall being caused by a pre-existing medical condition in a separate section below.

22. Apart from independent and objective evidence, there was the evidence of the description given by the daughters of the plaintiff’s of the state of the plaintiff at the time when they saw his arrival at the emergency ward at the hospital.  The evidence at trial was that neither PW3 Chan Yin Shan (“Yin Shan”) nor PW4 Chan Yin Yan (“Yin Yan”) had spoken to anyone from Shun Hing about how the plaintiff was discovered after the accident until much later, sometime after 4 pm, when the plaintiff’s condition visibly deteriorated.  A huge lump developed on his head and he became less alert, prompting the doctor on duty to ask the sisters to find out what exactly happened to the plaintiff before he was admitted.  In so doing, the doctor asking for the investigation to be done must have realised that what medical history that had been taken from information supplied by either the plaintiff himself doing the best he could in his state and possibly by the ambulance man delivering him to the hospital would not have been reliable as information on what in fact happened to him.

23. Upon the plaintiff’s arrival in hospital, and well before the sisters were told to find out more from those at the Site, Yin Shan recalled asking her father what he was doing that day and why he suddenly passed out.  Yin Shan was told by the plaintiff that the defendant asked him to do plastering and painting work, which was what the defendant himself confirmed to her over the phone on the same day after the accident.  I accept the evidence of Yin Shan contained in her witness statement that shortly after 1.40 pm on 14 October 2010 she was informed by the defendant who claimed to be at the scene of the accident that her father was doing plastering and painting work on the Site before the accident took place.  Yin Shan recalled her observation at the hospital that her father was covered in “dusty plastering material” (“灰”).  Yin Yan also recalled that he was dirty and covered in plastering material, and he was wearing work clothes.

24. In respect of the type of apparel the plaintiff was wearing when he was taken into the ambulance, there was support to Yin Yan’s evidence from none but the defendant himself.  Under cross‑examination, he admitted that plaintiff was carrying a backpack on the day, which he returned to retrieve from the Site a few days after the accident.  He had admittedly searched the backpack and saw some medicine inside.  Other contents included clothes and shoes.  The defendant agreed that when attending 16/F of Shun Hing Centre with him on the day of the accident, the plaintiff was carrying with him a change of clothing.  When counsel for the plaintiff suggested to him that the plaintiff was wearing working clothes when he left him at the Site that morning, the defendant said he did not pay attention to what type of clothing he was wearing.  When asked to explain why he thought the plaintiff would carry a change of clothing in his bag if he were not going to be working on the Site but only to inspect the Site to give a quotation, he answered saying the plaintiff had always carried clothes and shoes in his bag wherever he went.

25. The defendant also gave evidence on the nature of the work required to be done in the two rooms on the premises.  His evidence was that the work that he intended to ask the plaintiff to give a quotation for was the removing old wall paper (“起舊牆紙”) and plastering and painting work known as “base work” (“做底”) to smoothen and prepare the wall for new wallpaper to be mounted.  The work to be done on the Site (the new conference room) was almost completed by other workers working under a previous sub‑contractor, whereas that to be done in the old conference room had yet to commence.  Under the quotation submitted to and accepted by Shun Hing, the entire cost of the work (including purchasing wall paper) was $32,000.  When asked what figure he had in mind to give to the plaintiff to finish what remained to be done, the defendant accepted that it was under $10,000.  He further agreed that the value of the base work in the old conference room (Room 2) was around $5,000, and what remained to be done in the new conference room (the Site) required one man no more than three to four days to complete.  Adopting the higher end of the range of daily rates for plastering and painting worker suggested by the parties in this action, the value of the work in respect of the Site was no more than $3,200 (4 x $800 per day).  In his witness statement, he also stated that the base work to be done was urgently required, and it was not complicated.  Even on the evidence of the defendant, it was a small and straight forward job that he needed done quickly.

26. It is common ground that the plaintiff and the defendant were friends going back several decades.  The plaintiff had been engaged as plasterer and painter on many occasions in the past.  According to the defendant, on each of these occasions in the past, it was expressly agreed that the plaintiff worked as a self‑employed worker.  They met by chance on 13 October 2010 at the neighbourhood dim sum restaurant, where the defendant told him of the work to be done at Shun Hing, and invited him to inspect the construction site in order to give a quotation.  However, the appointment to inspect only took place on the following day, ie the date of the accident.  They arrived together at the Site some time after 10 am, having earlier met for dim sum breakfast and tea.  The time required for the defendant to explain the work to be done and for the plaintiff to inspect the two rooms for the alleged purpose of giving a quotation took no longer than half an hour.  The defendant agreed under cross-examination that the discussion between the two parties would have been over by 10.40 am.  When asked why the plaintiff was not asked to give a quotation there and then, the defendant insisted that it was not unreasonable to give the plaintiff more time to come up with a quotation as he would have needed to find out the cost of workers.

27. According to the plaintiff’s evidence, he was requested to go and work on the Site when he met the defendant by chance on 13 October 2010 while having tea at the neighbourhood restaurant.  As he had already planned to take his grandson out that day, he said he would start work on the next day.  They made arrangement to meet on the following morning in the same restaurant for tea before heading off together to Kwai Chung where the Site was.

28. Against the above evidence, I am to assess the likelihood of the plaintiff having been asked to attend the premises on the day of the accident just to give a quotation for the remaining work, or if he was requested to start doing the work himself.  In my view, the evidence on the nature and the scale of the work required to be done at the premises casts the evidence of the defendant in serious doubt.  It was inconceivable that the defendant himself as an experienced contractor working under the constraints of a small budget to complete this item of work would not have seen the job was a small job that needed to be finished as soon as possible, and would have directly employed plastering and painting workers amongst his contacts to finish up the work.  Had he seen fit to sub‑contract the small job to the plaintiff, I find it inconceivable that he would not have either asked him to render a quotation on the spot, which a reasonable sub‑contractor would not have found himself unable to do in the circumstances.

29. Further, I find that the extra change of clothing found inside the backpack of the plaintiff that he carried with him on that day a compelling piece of evidence in support of what the plaintiff said he was expecting to do and was in fact doing on the Site on the day of the accident.  I find that he prepared a change of clothing to carry with him because he knew he was doing plastering work on that day, and he did indeed carry out such work at the Site.  This evidence is further supported by the evidence of the daughters of the plaintiff who saw he was covered in dusty plastering material when they saw him in hospital.  I accept their evidence.  I reject as inherently improbable the evidence of the defendant that he had always known the plaintiff to carry clothes and shoes around in his bag wherever he went.

30. On the medical evidence before me and the evidence of Miss Lau, I find it overwhelmingly more likely that the plaintiff had fallen from a ladder rather than having somehow bumped his head badly while inside a relatively empty room without using the ladder.  I could not think of any plausible reason why the plaintiff would have climbed up the ladder had he not been carrying out plastering work inside the room.  I do not accept it was likely that he had lingered on the Site for hours after Chan had left sometime after 11 am only to give himself time to assess the sum to quote for the work and to wait for delivery of the materials as requested by Chan because “he had nothing to do” as alleged by Chan.  I find that it was inherently more likely that he was asked to finish up the plastering and painting work on the Site, and Chan had requested him to take delivery of building materials and pay the delivery worker since he would be working in the room in any event.

31. The plaintiff called a fellow worker and friend陳湛德 (“PW5”) as a witness.  PW5 was working together with關健元 (Mr Kwan) on a site in Taipo when the plaintiff called Mr Kwan to chat while working at the Site on the day of the accident.  He overheard the telephone conversation in which the plaintiff told Mr Kwan that he was “working for Chan Wai Hung”, referring to the defendant, who was known to both of them as he had engaged both of them to work in Shun Hing Centre between 2001 to 2003.  When the telephone conversation was over, Mr Kwan related the conversation to PW5, reporting the fact that the plaintiff was employed by the defendant to work on that day.  I find the evidence credible and supportive of the plaintiff’s evidence that he was engaged by the defendant to do plastering and painting work on the day of the accident.  I find PW5 a truthful witness with a calm and relaxed demeanour.  He answered questions spontaneously and did not exaggerate at all on what he knew or heard on that day through Mr Kwan.  I accept his evidence that the plaintiff did call Mr Kwan on that day and reported about his employment on that day, and that this was what workers like them including the plaintiff would do as part of networking for social purposes, to exchange information on the construction labour market, and to facilitate job seeking.

32. I accept the evidence of the wife of the plaintiff, Madam Ng, (“吳惠貞”) that she was informed:

(1) By her husband on 13 October 2010 that he was requested to do work for the defendant at the rate of $800 per day on the following day.

(2) By her husband calling from the premises of Shun Hing that he had just finished lunch and had yet to resume work on the Site.

(3) By the wife of the defendant, Madam Cheng (“鄭三妹”), that the plaintiff was working for her husband on the day of the accident.

(4) By the defendant shortly after the accident that he would return to Shun Hing to clear out the Site before the Labour Department was to visit the Site.

(5) By the defendant that she should hold off reporting the plaintiff’s injury to the Labour Department as insurance cover had expired and this would land him in trouble.

33. I find Madam Ng an impressive witness.  She was able to give clear accounts of the events within her knowledge and appeared to have a good recollection of those events.  She readily admitted that certain evidence was what she had learned from her daughters, giving a clear and convincing explanation on how they had kept one another informed of their respective conversations with the defendant or his wife.  On matters requiring her explanation she was able to give firm, convincing and spontaneous answers.  On matters that she did not know or was not sure of, she was always ready to admit her lack of knowledge or certainty.  In so far as her evidence conflicts with that of the defendant and Madam Cheng, I accept her evidence instead of the defendant’s or Madam Cheng’s.

34. In respect of criticisms of certain points of identity between the witness statement of the Madam Ng and her two daughters, I find that Madam Ng has given a perfectly plausible explanation that did not begin to reflect impropriety.  The witness statements referred to a number of communications amongst the three of them, and to instances of communication between one of them with either the defendant or his wife.  I find it natural that the daughters would have reported to their mother what was said by the defendant.  On the other hand, the defendant had on occasions requested the plaintiff’s family members to delay reporting to the Labour Department for employee compensation.  He also accepted in oral evidence that he did mention to one of the daughters that there was no insurance coverage for her father.  His words could be construed to mean that he was worried about attracting personal liability.  In the circumstances, it was not unreasonable for them to have made a record of all the conversations any of them had had with the defendant or his wife, apart from reporting to one another what had been said at the time, given the perceived risk of the defendant denying liability as an employer.  These records would reasonably have been used to jog their memories when they were required to make witness statements in this action.  

35. Madam Ng in cross-examination frankly explained that she had relied on a record they shared of the events and conversations that took place.  Upon such disclosure, there was no application on the part of the defendant for discovery of the record to test the existence or reliability of this aspect of her testimony, or of the record.  There was no suggestion that their witness statements were tailored by their draftsman to corroborate one another.  Their evidence has been tested separately in cross‑examination and had stood unshaken.  In the circumstances, I do not find any application of the comments of Saunders J in Ho Sin Ying v Chan Yiu Ling, the Administratrix of the estate of Tsang Kwong Lik ( HCA 90/2010, judgment dated 13 July 2012 at paras 57 to 65) in this case.

36. The plaintiff’s evidence on this issue is further attacked by defence counsel based on her cross‑examination of the plaintiff.  His credibility was questioned mainly based on whether he did any plastering work “on the ceiling” and “the upper part of two adjoining walls” as he said he did.  The gist of the defence argument is that if he made a mistake on doing plastering work on the false ceiling (which was not possible and not necessary), and two adjoining walls as he indicated on p 202 of the bundle that he coloured on (which was not possible either, as there were no two adjoining walls on the Site both with upper parts that were not windows) he must have been untruthful about doing any work at all on the Site.

37. Having reviewed the evidence of the plaintiff I did not find the criticism entirely fair.  It has to be remembered that the defendant has been a plastering and painting worker almost all of his adult life, and his level of literacy is not high.  He was also of advanced age at the time of giving evidence even without taking into account the disabilities that he had suffered as a result of the accident.  He appears to be slow in grasping finer points, and did not appear to be able to search his memory for greater details when called for.  His answers were imprecise at times, and he was unable to explain how the answers to some of the earlier statements taken from him came about.  Given his condition at the time of the taking of the previous statement and his present condition, and the lapse of time of 3½ years since the accident, I am unable to brush aside any discrepancies and imperfections in his evidence as signs of untruthfulness. I am more inclined to view them as a combined result of imprecision in expression and failing memory.

38. While the defendant may be criticised for being confused and self-contradictory at times as to which surfaces it was that he was doing plastering work on, he did qualify his answers by saying that “he did not remember very well”.  What was clear was that he used the ladder to reach the higher portion of the surfaces of the walls that required plastering, both in the morning and in the afternoon.  As to which walls these were, he was not unable to give clear evidence.  The Accident Report prepared by Occupational Safety Officer Chiu Pui Lam included his finding that the plaintiff was working on the wall between the window side and the door at the time of the accident.  As seen in a photograph taken on 1 December 2010 of the room that was the Site, there is a portion of wall above the door that was indeed a portion of wall adjoining the wall in front of which a white board on wheels was placed.  Regardless of whether that could be the upper part of the adjoining wall that the plaintiff recalled at one point in the trial that he was working on, the available evidence shows that there were upper parts of walls on the Site apart from a full wall that needed plastering.  I am unable to accept that if he made mistakes on which surfaces he was working on, he was more likely to have made up the fact that he was working in the room altogether.  As it is not a matter of dispute that he did inspect the room, there is no convincing reason why he should choose to fabricate plastering work on the false ceiling or adjoining walls if his case could be driven home merely by his working on the ladder on one of the walls of full height.

39. I find it more likely that he was genuinely confused and was unable to remember well which of the surfaces he was doing plastering work on, apart from the fact that it was at a level that required the use of the ladder.  The photos annexed to the report clearly shows such wall surfaces, and the position on the Site where he was found lying corroborates the Occupational Safety Officer’s finding that he was working on the upper portion of the wall between the door and the window side of the room.

40. It follows that my finding on this issue is that the plaintiff was indeed working on the Site as a plastering and painting worker at the time of the accident, and he did so at the request of the defendant.

Was the plaintiff working as an employee or an independent sub‑contractor?

41. In considering this issue, I bear in mind the evidence on the nature and scale the work required to be done, as set out under the previous sub-heading.  I also bear in mind the evidence of the plaintiff in his witness statement paras 4, 8, 13 and 14.  My analysis of the evidence on the rendezvous of the plaintiff and the defendant and the arrangement they made for 14 October 2010 has been analysed under the preceding sub‑heading.  The evidence reflects that the plaintiff has been working on and off as a casual worker for the defendant’s construction contracting business for over 10 years. He had always been paid as a worker on a daily wage.  At least for the job required to be completed in Shun Hing on this occasion, I find that no good reason has been put forward by the defence to justify why he had chosen to have the plaintiff intervene as a sub‑contractor for such a small job rather than to ask him to go ahead and take on the work (or such part of it as the defendant pleases) as a worker on a daily wage.  Further I do not accept his evidence that the defendant was unable to give him a quotation on the spot after he allegedly inspected the premises for that purpose.  I am driven to conclude that it was a mere excuse put forward in an attempt to explain why he stayed on for hours into the afternoon and was agreeable to doing so just as a good friend so he could wait for some delivery to arrive.

42. The fact that the work on the Site is expected by the defendant to be completed by one worker within three to four days is also a factor that militates against the idea of sub‑contracting. While the defendant asserts that he had been sub‑contracting each aspect of the construction works in the project in question, and the “base work” (“造底”) for changing the wall paper was only one of the items contracted out, this assertion is not borne out in any documentary evidence which is expected to exist and in the possession of the defendant.

43. The plaintiff’s evidence that he was employed on a daily wage was supported by the evidence of his wife, whose evidence I accept based on the analysis contained under the preceding sub‑heading.

44. I also take into account the evidence of PW5, who gave evidence to the effect that he and the plaintiff were between 2001 to 2003 employed as workers by the defendant at a daily wage, although their wages were only payable monthly but not necessarily promptly.  Under cross‑examination, it was suggested to him that the plaintiff in the capacity of a sub‑contractor may have employed him to work, which he firmly denied.  In so far as PW5’s evidence conflicts with the evidence of the defendant on the employment relationship between the plaintiff and him with the defendant in 2001 to 2003, I accept PW5’s evidence on the basis of the same evaluation of the credibility of him as a witness as set out above.  I reject the evidence of the defendant in this regard.

45. The question is not whether the plaintiff has ever worked as a sub‑contractor, or whether he had only ever worked as a worker on a daily wage in the past, but whether he was employed as a worker on a daily wage on the day of the accident.  The evidence of the records of the number of days he had worked over some periods in the past was evidence of limited value, but it serves to demonstrate it was not out of the ordinary for the plaintiff to have been invited to work as a worker for a daily wage.  On the other hand, counsel for the defendant suggests that the fact that the plaintiff called fellow worker Mr Kwan on the day was indicative of his intention to recruit workers for the intended sub‑contract.  That theory is not only speculative but requires me to ignore or reject the evidence of PW5, which I am not prepared to do.

46. The defence case is not advanced on the basis that the defendant was working on the Site as a self‑employed sub‑contractor on that day, but that he was not asked to work there at all.  My finding under the preceding sub‑heading inevitably impacts upon my finding under the issue of whether he was working as an employee or as an independent sub‑contractor.  My rejection of the defendant’s evidence in the preceding sub‑heading likewise impacts upon my finding against the defendant hereunder.  Taking into account the evidence as a whole, including those analysed under the preceding sub‑heading, I find on a balance of probabilities that the plaintiff was working as an employee of the defendant at the Site on the day of the accident.

Was the plaintiff’s injury caused by a fall from the defective ladder?

47. In the light of my findings under the two preceding sub‑headings, that the plaintiff was probably requested by the defendant to do plastering and painting work on the Site, it was the latter’s duty to plaintiff to provide him with a sufficiently strong and stable ladder for the defendant’s use while he was working alone on the Site.  The ladder in question having been agreed by the defendant to be unstable and unsafe, breach of duty would be the only reasonable conclusion to be drawn.

48. I reject as highly improbable the suggestion that the injury suffered by the plaintiff was not caused by a fall from the ladder.  The circumstantial evidence and the medical evidence all point to the conclusion.  The inference is irresistible.  Against the force of this inference, the defence seeks to attack causation by reference to two main points.  The first point is that the injury was caused by the plaintiff’s pre‑existing medical condition, which necessitated medication that had a sedative effect.  The second point is that part of the records of the Accident and Emergency (“A&E”) Department of PMH gives rise to the inference that the plaintiff had informed the doctor that he had been feeling dizzy even before he was injured, and that he did not mention that he was injured by having fallen from a ladder. It was not until his daughters were asked to find out how he was injured from the staff who were at the scene of the accident that Yin Shan called to speak to Shun Hing’s staff, after which the doctor was supplied with the information that he had fallen from a ladder.  That piece of information, according to the defence case, was only an inference drawn by the sisters, and not what she was told.

49. The pre‑existing medical condition the plaintiff suffered from on the day was said to be upper respiratory tract infection, or a sore throat, as the plaintiff himself put it.  He was prescribed three days of medication by Dr Arthur Mah on 12 October 2010.  The plaintiff’s evidence was that he took the medication five times on the first day despite he was told to take it four times daily.  He said he wanted to get better more quickly, and in fact he felt much better after doing so.  On the second day, he said he took the medication four times.  On the third day, which was the day of the accident, he did not take any medicine before he went to work, but intended to take medicine only after work.

50. Pursuant to the order of Mimmie Chan J, the parties’ joint medical expert Dr Brian Choa was asked to comment in a supplemental report on the effect of the medication upon the plaintiff on the day of the accident.  His comments were as follows:

“The prescription is a standard one for simple coughs and colds.”

“The Methorsedyl and the Allersan could cause mild sedation especially if taken in excess. Patients are often warned to take precautions if driving or using potentially dangerous machinery. However, the use of these drugs in a course of cold treatment is not an absolute contraindication to such activities as their effect is usually mild. A man of CHAN’s age will almost certainly have taken similar drugs in the past.

It is noted that [the plaintiff] stated that he did not feel unwell immediately prior to his fall. For the medication to be a significant factor in the accident, he would have felt dizzy or weak; in other words, the drugs do not have a hidden effect that the patient might not be aware of.

The other four things prescribed have no relevant side effects.  It is therefore my opinion that these medications did not contribute to the accident.”

51. Madam Ng was also cross‑examined on the condition of the plaintiff on the days preceding 14 October 2010, and in the morning prior to his leaving to meet the defendant to go to work.  Her answer was that he was fine but for the sore throat.  She said she had asked if he was feeling “okay” before he went to work, and he said he was feeling “okay”.  Towards the end of her evidence, in answer to the case of the defence put to her on this point, she reiterated that that he was only recovering from a sore throat, and that his condition was otherwise fine.  Apart from the above evidence, I also take into account the evidence from Madam Ng that the plaintiff did call her after lunch before resuming work.  There was no evidence that he had any complaint of feeling unwell.  The fact that he called his fellow workmen to chat middle of the morning also suggests that he was not feeling unwell or dizzy that day, as the defence case suggests he was.

52. I note that this part of the defence case relying on the medical condition of the plaintiff in refuting causation is not pleaded on any alternative basis (see paras 3 to 6 of the Defence).  In other words, the defendant maintains that the plaintiff had no business working or climbing a ladder on the Site.  On this basis, if the plaintiff were merely asked to attend the premises to give a quotation, as the defendant said he was, but was feeling dizzy that day, there was no reason why he would not have called off the inspection.  Furthermore, if he was feeling unwell or dizzy any time after he arrived at the Shun Hing premises to inspect the site only to give a quotation, he would most unlikely have agreed to stay around on a construction site for hours to wait for delivery that was to arrive at an uncertain time, all because he was a friend of the defendant and he had nothing to do, as the defendant would have this court believe.  The evidence indicates that there was no furniture on the Site at the time, not even a chair to sit on.  Even if he had felt dizzy only after the defendant had left him, it was still more likely that he would have called to inform the defendant to make other arrangements for taking delivery, so he could excuse himself.  If he was feeling dizzy or unwell in any way at all, I find it even less likely that he would have climbed up any ladder of his own accord when he was not asked to do any work as the defendant suggested.

53. Further, I find the reading of the words “dizziness today” on the A&E Records of PMH by defence counsel unconvincing.  Ms Leong’s theory is premised upon the assumption that “the question of prime importance” posed to the patient under emergency consultation was “how did [the patient] get injured”.  I do not agree.  The medical officer was not an accident investigation officer.  He would have been concerned, first and foremost, with the condition of the patient at the time of examination.  He would have been concerned with finding out what physical condition he was in, apart from what he could observe, that required immediate medical attention in the A&E ward.  Notes would have been taken as the patient spoke.  Upon more probing questions asked, a better understanding of his answers would have been developed, and notes taken may need to be amended.  In the case of the plaintiff, when in the course of time his apparent condition (growing lump on the head, increasingly severe headache and rapid deterioration in degree of consciousness) suggested something more serious had happened to him than some ailment with a symptom of dizziness, the doctor probed into what had in fact happened to him.  It was then that Yin Shan and Yin Yan and the doctors focussed on the cause of his deteriorating condition.  In the circumstances I am not prepared to give any significant weight to the fact that neither the plaintiff nor his daughters (in so far as they had the opportunity to) mentioned anything about falling from a ladder before the plaintiff’s condition deteriorated.

54. More importantly, the plaintiff did not have any obvious injury on him at the time apart from a 2 cm haematoma.  I do not find it surprising at all that the first questions asked were not how he got injured.  There was no open wound or bleeding to be seen.  The lump on his head grew in size only over the hours he spent in the A&E ward.  His complaint was of dizziness and headache.  In the course of probing into how the plaintiff came to be taken to the A&E ward, it was hardly surprising that clarifications would have led to deletion and correction of the notes.  I do not find any significant weight could be attached to the deletion of the words “sudden dull looking & sit on floor at work” and the substitution of the words “found lying on floor at work (noted by colleague)”. While the plaintiff was outwardly observed to be conscious and alert, his skull was fractured by then and there was internal bleeding.  He could hardly be regarded as being in the same normal state as an uninjured person.

55. In so far as the notes may suggest that he was understood to have complained of dizziness all day, I find it likely that the plaintiff had not expressed himself well as to when he began to feel dizzy, or he could have been misunderstood as to when that condition began.  The significance of since when did the patient feel dizzy might not, in those circumstances, have been regarded as crucial, and certainly would not have assumed the same degree of significance as it has at this trial.  The medical examination took place 3½ years ago.  I considered any attempt to summon the doctor on duty at the Accident and Emergency Ward into court to give evidence on what exact questions he asked and what exact answers this patient gave 3½ years ago to be futile.  I disallowed the defendant’s application made in the middle of the trial to call the doctor to give evidence.  In the circumstances, I find myself unable to rely on this piece of evidence alone to draw any conclusion even on a balance of probabilities without reference to other evidence.

56. The words “sudden dull looking & sit on floor at work” does not help advance the defence’s theory either.  If the plaintiff had suddenly lost consciousness and was sitting on the floor before he was taken to hospital, he could hardly have injured himself the way he did, and he could hardly be expected to be able to give that account to the first doctor that examined him, just as he would not have known how he was discovered.  Thankfully, as regards how he was found, there is only one version of unchallenged evidence—that of Miss Lau, which I find points to a clear and irresistible inference that the plaintiff did fall together with the ladder while standing on it.

57. In the light of my findings in the preceding paragraphs on the likely physical condition of the plaintiff on the day of the accident, and on the notes of examination, I do not find that the notes on the PMH Report regarding “uri symptoms x a few days” add any strength to the theory of the defence.

58. It was pointed out that in none of the previous declarations given to the Labour Department on 8 January 2010 and 14 February 2010, his witness statement in this action, nor his testimony in the magistracy proceedings did the plaintiff mention that the ladder shook.  I am not satisfied that the absence of such a reference points to an inference that he did not fall from or with the ladder.  The reason the ladder was unsafe, as admitted by the defendant, was because it had no opening restraint device.  Whether the defendant was able to feel the sensation of shaking immediately prior to the fall takes nothing away from the strong circumstantial evidence pointing to his fall from the ladder.  With the crash happening in the flash of a second, it is also highly questionable whether he can be expected to register and remember how exactly he came to have landed on the floor with a severe head injury.  For the same reason, there was no evidence on which part of his body first landed on the floor either, but it would be unnecessary to go into such an investigation.  His injuries speak louder than any purported recollection from him or conjecture from others. I find it unnecessary to rely on the plaintiff’s evidence of what happened in the moment of his fall, and I find the point made on the inconsistency of his evidence of little assistance.

59. For completeness, I would deal briefly with the evidence on the general health condition of the plaintiff prior to the accident that the defendant had placed some reliance on, namely a medical history with hypertension, ischemic heart disease and diabetes mellitus.  For his ischemic heart condition, the plaintiff has admittedly undergone balloon angioplasty to widen his narrowed coronary vessels in March 2010.  There was no complication arising from the procedure.  According to the evidence of Madam Ng, the plaintiff was able to resume work about a week after the procedure, and did resume work whenever invited to.  Madam Ng testified that between August to October 2010, the plaintiff did work on a number of days as plastering and painting work, although she could not remember how much he worked between March to August 2010.  The fact that the plaintiff worked as usual between August to October 2010 is supported by contemporaneous record in the form entries made in a book produced in court as Exhibit P1.  The evidence of Dr Choa confirmed that he had had no symptoms since the procedure.  His heart function was normal and so was his blood sugar level.  He found no evidence that his prior medical problems caused his fall.

60. To sum up, I find that on 14 October 2010 the plaintiff did fall with the unsteady ladder while standing on its rungs in the course of his employment by the defendant to do plastering work on the Site.

CONTRIBUTORY NEGLIGENCE

61. The burden of proof is on the defendant to prove that the plaintiff did not take reasonable care of himself and was negligent, thus contributing to his own injuries.  The plaintiff would only be guilty of contributory negligence if he ought reasonably to have foreseen that he might hurt himself in acting the way he did: Nance v British Columbia Electric Rly Co Limited [1951] AC 601 at 611.

62. If the plaintiff was simply getting on with the work he was told to perform with the inadequate equipment he was provided with, the court would be slow in putting any blame on him even if he is aware of the potential danger the inadequate equipment might cause.  He would have had little choice but to get on with the work, short of stopping work altogether: Lau Chiu Wah v Kwong Kee Construction and Engineering Ltd, HCPI 581/1998 (Suffiad J, 28 April 2000), at para 46.

63. In the light of the obvious legislative purpose of the CSSR being to protect the workman, I find it appropriate to follow the approach adopted by Recorder Ronny FH Wong SC in Ng Wah Chun v Cheng Wing Chung & ors, HCPI 164/2001, 27 September 2002, where he adopted the dicta of Stephen Brown LJ in Denwood v Harrod:

“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”.

64. The particulars of negligence pleaded under para 4 of the Defence against the plaintiff are as follows:

“(i) Allowing himself to climb up the ladder when he knew or ought to have known that he himself had health problem.

(ii) Causing himself to climb up the ladder knowing that he did not have authority and/or consent with the Defendant.

(iii) Exposing himself to a danger when he knew or ought to have known.

(iv) Failing to take reasonable step to ensure his own safety when he was looking around at the Site.”

65. Given the defendant had insisted that the plaintiff did not fall from or with the ladder, it was hardly surprising that the allegations in (i) and (ii) above were never put to him.  The defendant’s reliance on pre‑existing health problem was limited to supporting the allegation that the plaintiff has passed out without falling from height. I do not accept that the defendant can now rely on an alternative case as suggested in para 55 of defence counsel’s closing submissions, that if he had climbed up the ladder, he knew or ought to have known that it was unsafe to do so as he was feeling dizzy “on that day”.

66. As regards (iii) above, it is not clear what danger was relied on. In so far as the meaning of (iii) may be stretched to mean the plaintiff exposing himself to the danger of inspecting the premises and staying there at length when he was not feeling well or feeling dizzy whether as a result of medication or otherwise, it has not been put to the plaintiff for his response.

67. As for (iv), it was never suggested what reasonable steps the plaintiff could have taken to ensure his own safety, and no case was put to him under this allegation.

68. I find that contributory negligence is not proved.  Even if I were to allow an alternative case to be run on the basis that the plaintiff did climb up to work on the ladder, in the light of findings in the preceding section, I would still have found insufficient evidence to prove (i) above, and I would have no hesitation in finding against (ii) above.

QUANTUM OF DAMAGES

Medical evidence on the injuries

69. As a result of the accident the plaintiff suffered a severe head injury.  Upon admission to PMH, CT brain showed right acute subdural haemorrhage (ASDH), cerebral contusion and skull fracture.  His Glasgow coma score (GCS) dropped from 15/15 to 8/15. Craniotomy for clot evacuation was done on the same day.  He developed chest infection and respiratory failure.  Tracheostomy was done on 20 October 2010.  He gradually recovered to GCS 15/15 and remained left side hemiparesis. He was discharged on 11 January 2011 and arranged follow up in Shatin Hospital.  At his last follow up at the neurosurgical outpatient clinic on 2 February 2011, his left limb power was about grade 1/5 to 2/5.  The neurosurgical diagnosis was head injury with ASDH, cerebral contusion and skull fracture.  The plaintiff underwent craniotomy for clot evacuation on 14 October 2010, but he developed chest infection and respiratory failure after the operation.  Tracheostomy was done on 20 October 2010.  He was an in-patient at the neurological ward of PMH from 14 October 2010 to 11 January 2011.

70. After discharge, he received follow up treatments in various clinics and hospitals, including physiotherapy treatments at Shatin Hospital (Geriatric Day Hospital) and the neurological out-patient clinic of PMH.  Shortly after going home, the plaintiff suffered his first epileptic fit.  He was taken to PWH where he was kept under observation overnight.  He was not put on antiepileptic medication then or later, even though he continued to have generalised fits approximately twice per month.  It was only when he consulted Dr Fung Ching Fai, the private neurosurgeon in about June 2012 that such medication was started.

71. According to the report of the joint expert Dr Choa, although he was conscious on arrival at hospital, expanding blood clots inside his skull and brain caused his level of consciousness to deteriorate and emergency surgery had to be done.  In spite of this being successfully accomplished, the plaintiff was left with left sided weakness.  This amounts to a complete paralysis of his left arm and hand and what is now a mild weakness of his left leg.

Symptoms ad Medical Status

72. The following symptoms and medical status were recorded by Dr Choa:

(1) Epileptic seizures: Between February 2011 and May 2012, he had frequent generalised convulsions that showed no particular pattern, except that they never occurred during sleep; since starting treatment under Dr Fung, he has been seizure‑free.

(2) Speech and language: The plaintiff is able to express himself well and to understand the spoken word.  He is said by his family to be a little slow in his reactions.  His speech is also slightly slurred.

(3) Mood: Early in his period of recovery, the plaintiff became depressed.  Now that he is more mobile and showing improvement, he is no longer subject to depression, but he is still a little more irritable than before.

(4) Left upper limb: This has remained totally paralysed but sensation is intact.

(5) Left lower limb: His left leg has improved to the point that he can walk using a quadripod device, although he still sometimes scuffs his left foot and he has tripped a few times going to the bathroom at home.

73. He remains dependant on his family for dressing, baths, shopping and cooking.  He can now get up from his bed or chair without help and can feed himself.  He never goes out on his own but is capable of using money in the nearby shops. An Indonesian helper has been engaged since the accident to help look after him.

74. The plaintiff’s own evidence is that the injuries have greatly affected his daily life and left him dependent on help in his daily activities.  He needs to use a quadripod walking aid when he walks.  He can only walk slowly and cannot climb steps without help.  He also has difficulty taking public transportation, and cannot go out on his own.

Residual disabilities, work capacity and assessment of impairment

75. The plaintiff has been left with a useless left arm and hand and a weak left leg.  He walks slowly with a quadripod walking stick and cannot climb.  His head injury was also complicated by post‑traumatic epilepsy.  His seizures have apparently come under control in the past month before the date of the report since medication was started; it was, however, too early to state whether he would continue to have some seizures for an indefinite period into the future.  These disabilities also mean that he still needs some help in the home for his activities of daily living, such as dressing and baths.

76. His permanent disabilities, namely, his left hemiparesis with total paralysis of his left upper limb, Dr Choa considered he would not be fit to do work of any kind.  His loss of earning capacity is 100%.  The total impairment of the person is assessed at 43%.

Life expectancy

77. In his Further supplemental Report, Dr Choa gave his opinion on the impact of the plaintiff’s injuries on his life expectancy.  He reckoned that the plaintiff, currently 65 years old, is expected to live to the age of 79, and that his life expectancy is reduced by 27% by reason of his injuries.

PSLA

78. The plaintiff submits an award of $1,000,000 under this head would be reasonable.  In support of the argument the plaintiff relies on a number of comparable cases involving skull fractures, amongst which I regard Cheung Wai Ping v Chan Yuen Yee, HCPI 668/2005, per DHCJ Muttrie as being of particular relevance.  The plaintiff suffered severe head injuries and had to undergo two successive craniotomies.  The plaintiff suffered a disputed 15% to 20% impairment of the whole person, with left hemiparesis, cognitive impairment and risk of post‑traumatic epilepsy.  PSLA was awarded in the sum of $1,000,000 in 2007 as a case under the “gross disabilities” category.  I also take into account for comparison the cases of Leung Kwok Leung v Leung Iu Wa [2004] 3 HKLRD 421, a case of mild impairment of intellectual ability and memory function as well as some personality change, for which PSLA was awarded in the sum of $800,000 in 2004, and Lam Mo Bun v Hong Kong Aerosol Company Limited and Ors [2001] 1 HKLRD 540 where an award was made in 2001 for $800,000 for permanent disabilities including right hemiparesis and global cognitive dysfunction, psychomotor retardation, and impaired left visual acuity that left him with a total lack of earning capacity.  Siu Leung Sing v Wong Fook Wing, HCPI 1096/1999 per Seagroatt J, 8 November 2002 is a case where the plaintiff suffered injuries to a similar degree as in Lam Mo Bun, with a total loss of earning capacity and dependence on the help of family members for life.  An award of PSLA was made in 2002 at $900,000.

79. I also find the case of Law Ping Leung v Ng Sze Pong [2009] 5 HKLRD a comparable case.  The plaintiff suffered serious head injuries including skull fracture and contusion over the right temporal region.  Permanent impairment of the whole person was assessed at 35% by plaintiff’s expert.  After the accident he could only perform menial tasks instead of carrying on as a lorry driver.  His injuries were held to come within the gross disability category, for which an award under PSLA of $1,100,000 was made in 2009.

80. The defendant argues that the reasonable award should be $500,000.  Of the precedents relied on as comparables, I was convinced that $500,000 would be far too low an award particularly in light of the award in Yeung Tung Sang v Jamsart Cleaning Service Co Ltd,HCPI 826/2001, an award for head injury that left the plaintiff with mild cognitive impairment while retaining most of his pre‑accident functions, for which the plaintiff was awarded $450,000 in 2003.  The severity of injury and the 50% impairment of the whole person in Leung Kai Sun v Triple Luck Ltd trading as Golden Jade Seafood City HCPI 914/2006 is more compatible with the present case, in which the plaintiff was awarded $850,000 in 2008.  In Chan Wai Ming v Leung Shing Wah, HCPI 591/2012, the 60 year‑old plaintiff was awarded $850,000 in 2013 for residual weakness in his right arm and leg after suffering serious injuries in a traffic accident.  He was however able to conduct his life independently with the use of a stick.

81. In the light of the above, I consider the award of $1,000,000 under this head claimed by the plaintiff is a fair and reasonable sum.

Pre-trial loss of earnings and MPF

82. The plaintiff’s claim for pre‑trial loss of earnings for the period of 14 October 2010 to 10 March 2014 is $10,500 x 41 months = $430,500.  This is on the basis of a total loss of earning capacity opined by Dr Choa, and the plaintiff’s evidence that he was doing less work at the time as he was semi‑retired due to his age.

83. The plaintiff submits that 15 days should be taken as the average number of days he was working during that period.  Given the lack of evidence of any steady employment in the year of 2010 except for the months of August to October, I find it unlikely that the plaintiff would have been entrusted with jobs requiring sustained periods of daily work, like the 45‑day project that PW5 was taking on in Taipo at the time of the accident.  With the plaintiff only left with employment opportunities in small jobs offered to him, I take the view that 15 days a month is still on the high side as an average number.  I would take 10 days as the fair figure.

84. The defendant gave evidence that the market rate of an average plastering/painting worker (without the status of a “大工”, ie master level) was about $700 per day at the time of the accident in 2010.  The plaintiff is content to take this figure as the daily wage, where the defendant argues that it should be $650.  Given the experience of the plaintiff in the field, I accept that he would have commanded a rate of $700 per day.

85. My computation under this head is therefore: $700 x 10 days x 41 months = $287,000.

86. The pre‑trial loss of employer’s contribution to MPF is: $287,000 x 5% = $14,350. 

87. The total pre‑trial loss of earnings is $301,350.

Future Loss of Earnings

88. The plaintiff makes no claim under this head, as he considers the loss already subsumed into the pre‑trial loss.

Pre-trial gratuitous service by wife and cost of helper

89. The plaintiff claims $5,000 per month for gratuitous services provided by Madam Ng (his wife) during the pre‑trial period of 14 October 2010 to 28 February 2011 (4.5 months) before the domestic helper arrived: $5,000.00 × 4.5 months = $22,500.

90. The plaintiff further claims $3,850 per month for costs of a foreign domestic helper during the pre‑trial period of 1 March 2011 to 10 March 2014 (36.5 months): $3,850.00 × 36.5 months = $140,525.  The rate takes into account the increase of the minimum wage limit of foreign domestic helpers in Hong Kong during this period of time.

91. I find that this claim is justified on the factual evidence, and is supported by the expert evidence of Dr Choa.  I am prepared to follow the approach in Fung Kwok Ki v Wing Sang Construction Company Limited [2003] 3 HKLRD 201 and differentiate the rate between the service of the wife and that of the domestic helper.  Neither do I accept that I should apportion the value of the service of the domestic helper of the purpose of the award.  I accept the evidence of Madam Ng that prior to the accident, the need for a domestic helper did not arise.

92. The award under this head is $163,025.

Special damages

93. Special damages are as follows:

(A) The claimed items come to a total sum of $52,271 comprising the following items: Medical, travelling, tonic food and other expenses in the sum of $31,021, which is agreed by the defendant.

(B) Travelling expenses for attending medical treatments in hospitals in the sum of $5,000.

(C) Tonic food including fish maw to assist recovery in the sum of $5,000.

(D) Other expenses incurred as a result of the accident supported by various receipts, totaling $11,250.

94. Of the above sums, items (B) is disputed as to amount, and (C) and (D) as to need and amount.  Most of the expenses claimed under (B) are supported by receipts.  On the authority of Tsang Hing Yuen v Nishmatsu Kumagai Joint Venture & Anor [2000] HKLRD 796, I am satisfied that it is not unreasonable to allow a reasonable sum for tonic food given the age of the plaintiff and the seriousness of his injuries. I do not find the sum claimed under (C) unreasonable.  As regards item (D), these are expenses incurred in the course of rehabilitation, and have arisen out of the accident.  I am prepared to accept that they are reasonable and necessary expenses.

95. I would award the sum of $52,271 under this head.

Future cost of a domestic helper

96. The plaintiff’s claim under this head is supported by the evidence of the joint expert Dr Brian Choa. The defendant disputes the claim as to need and amount.  I have already dealt with the pre‑trial claim of this head of expenses, and will only deal with the future cost of this item in this paragraph.

97. According to the expert evidence of Dr Choa, the plaintiff’s expected lifespan has been reduced by 27% to 14.1 years as a result of the accident.

98. Following Chan Pak Ting v Chan Chi Kuen [2013] 1 HKLRD 634 (2^nd Judgment) [2013] HKLRD 1, the appropriate discount rate to be applied to the multiplier in the present case is 2.5%.

99. I consider the appropriate table to be referred to in calculating the applicable multiplier is not Table 1: Multiplier for Pecuniary Loss for Life (Males) of the Personal Injuries Tables Hong Kong 2013, as submitted by plaintiff’s counsel Mr Shum, but Table 28: Multipliers for Pecuniary Loss of Term Certain of the same edition of the Tables.  According to Table 28, given the reduced life expectancy of 14.1 years and the discount rate of 2.5%, the correct multiplier is 11.84.

100. The plaintiff should be awarded $4,010 x 12 x 11.84 = $569,740.80, rounded off to $569,741.

Future medical and travelling expenses

101. The plaintiff claims $10,000 for future medical expenses and $5,000 for future travelling expenses for seeking medical treatment.  The defendant disputes the amount and contends that future medical expenses should be $1,000.  I do not accept the lesser sum is reasonable or otherwise justified.  As for future travelling expenses, the defendant disputes the quantum but suggests no reasonable sum. I regard the claimed sums under these heads as both reasonable and make an award as claimed.

Interests

102. The plaintiff is entitled to interest at 2% per annum for general damages from the date of the writ to date of judgment or payment, and interest at half the current judgment rate for pre-trial loss of earnings and other items of special damages from the date of the accident to the date of payment.

SUMMARY OF QUANTUM OF DAMAGES

103. The award I shall make before interest is summarized as follows:

A.	Pain, suffering and loss of amenities	$1,000,000
B.	Pre‑trial loss of earnings and MPF	$301,350
C.	Pre‑trial gratuitous service by wife and cost of helper	$163,025
D.	Misc. items of special damages	$52,271
E.	Future cost of a domestic helper	$569,741
F.	Future medical and travelling expenses	$15,000
		___________
	TOTAL:	$2,101,387
		==========

CONCLUSION

104. Accordingly, judgment will be given in favour of the plaintiff in the sum of $2,101,387.00 against the defendant.

COSTS

105. There will be a costs order nisi that the defendant pays the plaintiff his costs of this action to be taxed if not agreed. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

106. It remains for me to thank counsel for both parties for their thorough research and able assistance at the trial.