TAM HON LEUNG v. NG WAI HING AND OTHERS

HCPI 1176/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1176 OF 2003

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J U D G M E N T

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Introduction

1.  On 29 April 2002 the Plaintiff Mr Tam Hon Leung, who was engaged in the repair of sea-going containers at Zone 4 of the River Trade Terminal (“RTT”), Tuen Mun, was injured when a container that was being moved by a large capacity front loader was accidentally lowered onto him resulting in serious hip and knee injuries.  He has brought this action against the three Defendants to recover damages for personal injury and for other consequential losses.

2.  Given the issues that I will need to resolve it will be helpful if I begin by describing the situation of each of the Defendants in relation to the place where the Plaintiff suffered his injuries and the nature of their relationship with reference to the work that he was engaged to do.  For reasons of convenience and clarity I will take them in reverse order.

The 3^rd Defendant

3.  This Defendant was the principal contractor at the site which is operated by RTT Limited.  It is a very substantial area where containers are variously stored, loaded and, as necessary, repaired.  This case is only concerned with the repair and maintenance of the containers which is done within an area at the site known as Zone 4.  The work had been sub-contracted to the 3^rd Defendant by RTT who in turn sub-contracted it on to the 2^nd Defendant.  The various containers that need to be repaired are transported by a front loader.  There were a number operating at Zone 4 and these were owned and maintained by the 3^rd Defendant but operated by drivers employed by the 2^nd Defendant.

4.  A photograph of a front loader of the type used when the Plaintiff sustained his injuries is at Bundle 1 page 172.  It is immediately apparent that this is a very substantial, as it needs to be, mobile lifting vehicle which attaches and secures a container to its hoist, lifts it above the height of the drivers’ cabin and moves it to whatever location it is next required to be.  The precise mechanics of its operation I propose to leave over to when I come to the evidence of how the Plaintiff came to be injured.

5.  The work of maintenance and repair of containers is essentially manual labour performed by workman skilled in carpentry and metal work, who also need to have welding skills.  It is this work that the 3^rd Defendant was contracted by RTT to provide and which the 3^rd Defendant in turn sub-contracted to the 2^nd Defendant, who in performing the sub-contract, used the 3^rd Defendant’s front loaders.

The 2^nd Defendant

6.  This Defendant sub-contracted on to the 1^st Defendant the part of the contracted work which required skilled labour to carry out the repair and maintenance of the containers, retaining for itself the provision of the drivers, who it employed, for the operation of the front loaders.  The 2^nd Defendant would therefore transport and put into position the containers for repair and, once repaired its drivers would remove the containers to a location from where they could be driven away by container lorry and put back into use for transporting cargoes as part of the Pearl River trade.

The 1^st Defendant

7.  It supplied skilled labour to the 2^nd Defendant for the repair and maintenance work on the containers.

The issues

8.  The first issue that falls to be resolved is the question of the contractual relationship between the Plaintiff and the 1^st Defendant.  He says that he was its employee.  The 1^st Defendant contends that he was an independent contractor.  The significance of the issue is that this will, in turn, decide the extent and nature of the 1^st Defendant’s duty of care towards him.  If the relationship was one of employer and employee then the 1^st Defendant’s duty would be a more substantial one.

9.  The next issue concerns the question of whether the Plaintiff can show a breach of the 1^st Defendant’s duty of care towards him, be it as employer or independent contractor.

10.  Parallel to that is the question of whether the Plaintiff is able to demonstrate that the 2^nd and 3^rd Defendants’ have also been in breach of their duty of care to him having first considered the nature and scope of that duty.

11.  In dealing with the question of liability I will also be required to address the plea of contributory negligence that has been raised by the Defendants’.

12.  Lastly, should it arise, I will need to consider damages.  Even if the Plaintiff were to fail in his action, in the event of an appeal, I will indicate the amount of damages that the Plaintiff would have been awarded had he succeeded.

Was the Plaintiff and employee of the 1^st Defendant?

13.  Much of the evidence has been directed to this issue.  The answer is very much a question of fact to be determined on the evidence, having regard to the relevant features of the relationship between the parties.  The decision of Cooke J. in Market Investigations v Minister of Social Security [1969] 2 QB 173 approved, as it was, by the Privy Council in the Hong Kong case of Lee Ting-Sang v Chung Chi Keung and Anr. [1990] 1 HKLR 764 established the factors that are to be taken into account, remembering always that in the particular case before the court some factors will weigh very heavily, others less so and some not at all.  Lord Griffiths in giving the Board’s Opinion in Lee Ting-Sang’s case was content to cite from Cooke J’s judgment at pages 184 and 185 for the matters that need to be looked to.

“	This fundamental test to be applied is this:
	‘	Is the person who has engaged himself to perform these services performing them as a person in business on his account?’
		If the answer to that question is ‘Yes’, then the contract is a contract for services.  If the answer is ‘No’, then the contract is a contract of services.  No exhaustive list has been compiled and perhaps no exhaustive list can be complied of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.  The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

14.  Inevitably, there are features that point both ways in what appears to be, in this case, a finely balanced issue.  Mr Y. L. Cheung has drawn attention to 7 features of the evidence, most of which, he submits, favour his case.  They are these:

(i)	The Plaintiff had worked on this site for the 1st Defendant for 25 months before he met his accident.  Whilst this is by no means conclusive the continuity of relationship is more consistent with a master/servant arrangement than that of an independent contractor who is more likely to move around from job to job;
(ii)	Mr Cheung points to the Tax Return filed by the 1st Defendant as the Plaintiff’s employer, [431-1; 432-434].  This might be considered impressive evidence although again not conclusive given the fact that at this level, government forms have been known to baffle employers.  The 1st Defendant says that this form was used as a convenient means of making the firm’s tax declaration and no more than that;
(iii)	The Form 2 was filled in and returned to the Labour Department by the 1st Defendant referring to the Plaintiff as its employee;
(iv)	The 1st Defendant’s foreman Mr Wu Siu Hung told the Occupational Safety Officer (Mr Lam) of the Labour Department that he thought that the Plaintiff was a long term casual worker of the 1st Defendant, working regularly for the company 26 days a month.  He did not have a fixed salary and voluntarily took part in the MPF Plan but that the 1st Defendant contributed to providing employee insurance for him for which it had claimed compensation from the insurance company on his behalf;
(v)	The Plaintiff worked regular hours from 8:30 am to 6:30 pm and performed the work that was set for him by the 1st Defendant complying with instructions set out in worksheets.  He was also provided with tools and equipment as well as materials for the job which were replaceable and maintained by the 1st Defendant;
(vi)	The Plaintiff and the other workers were under the control and management of Mr Wu, the 1st Defendant’s foreman;
(vii)	The workman’s pay was determined by the 1st Defendant.

15.  Mr Colin Wong who appears for the 1^st Defendant has also referred to several features about the relationship which he says suggest that the Plaintiff was engaged as an independent contractor.  He draws attention to the more specific indications that can be elicited from the case law appearing in the current edition of Chitty (27^th Edition) Vol II para 37-008 page 703:

“	Recent case law suggests that the factors relevant to the process of identifying a contract of employment may usefully be listed as follows:
	1)	The degree of control exercised by the employer;
	2)	Whether the worker’s interest in the relationship involved any prospect of profit or risk of loss;
	3)	Whether the worker was properly regarded as part of the employer’s organisation;
	4)	Whether the worker was carrying on business on his own account or carrying on the business of the employer;
	5)	The provision of equipment;
	6)	The incidence of tax and national insurance;
	7)	The parties’ own view of their relationship;
	8)	The traditional structure of the trade or profession concerned and the arrangements within it.”

16.  In a careful submission, Mr Wong has referred to the detail of the evidence.  I am invited to consider the Plaintiff’s own system of work.  Each morning the containers needing repair would be laid out in two lanes by the 2^nd Defendant.  The Plaintiff would then fetch the worksheets to see what needed to be done on the containers.  These worksheets would be prepared by the container owners.  The day’s work would be distributed amongst the Plaintiff’s group of three workmen, including the Plaintiff.  When the work was completed the Plaintiff would go and fetch a quality controller from the 3^rd Defendant to see that the work had been done to a satisfactory standard.  If it had been, then the containers could be removed and replaced by others requiring repair.

17.  Mr Wong submits that the 1^st Defendant, through its foreman, was not concerned with the distribution of work, nor the work that needed doing, nor quality control.  This was very much in hands of the 2^nd and 3^rd Defendants as well as the container owners who would specify, in the worksheets, what needed to be done.  The 1^st Defendant’s role was limited to ensure that sufficient labour was available and that sufficient safety measures were in place as best as it could arrange.  The 1^st Defendant’s foreman was also there to advise on the quality of the work to ensure that the 1^st Defendant would perform its contractual obligations with the 2^nd Defendant.  Continuing with his theme, that very little control was exercised by the 1^st Defendant over the Plaintiff and his colleagues, Mr Wong has pointed out that it did not concern itself with who was working on which particular container.  Its only care was to ensure that there were enough people to cope with the workload.  The Plaintiff and his colleagues would organize themselves as they wished provided they got through the work by the end of each day.

18.  In 2001, Mr Wu suggested to the Plaintiff that he should hire more workmen.  The Plaintiff had to consider whether he should do this because this would reduce the profit that could be obtained from the fixed sum that was payable to him.  Nevertheless, a failure to do so would have meant that fewer containers could be repaired daily which would also affect earnings and profit.  Ultimately, the Plaintiff employed another person a Mr Ho Kin Yung.  Mr Cheung says that all the Plaintiff was doing was employing another employee for the 1^st Defendant at Mr Wu’s request.  Nothing more should be read into this.  Mr Wong, on the other hand, submits that the contrary is the case because the Plaintiff, who was in business on his own account, hiring out his labour, had to evaluate the financial consequences of hiring an extra man, which he did in order to be able to repair more containers each day and thereby maximise profits.

19.  Another feature, according to Mr Wong, which points away from a master/servant relationship is how the Plaintiff dealt financially with his fellow workmen.  He would keep a record of how much work each workman had done and the Plaintiff would pay out accordingly from the amount that he had received from the 1^st Defendant.  This was of no concern to the 1^st Defendant who would pay a global sum to the Plaintiff reflecting all the work done by the team, leaving the individual payments to be distributed by the Plaintiff.  This is more consistent with a contract for services.  One would have expected an employer to have far more control and knowledge of the individual wages of each of its workman had an employer/employee relationship existed.  In this case it dealt with the Plaintiff at arms length as one would with an independent contractor providing labour.

20.  Payment was essentially calculated by the number of containers that were repaired within the designated hours of work.  More containers done translated into more pay.

21.  Another feature of the work which Mr Wong refers to is that the Plaintiff and his colleagues were assigned to these two particular lanes of containers.  He and his colleagues only worked on these two lanes.  If the work there was completed early none of them would go to help other workman on any of the other lanes.  This says Mr Wong tends to show that the Plaintiff and his team were independent contractors engaged to do these two lanes and that the other lanes were the exclusive area of responsibility of other workmen engaged by the 1^st Defendant or other similar sub-contractors. An employee on the other hand might be expected to work through the day on his employers containers in whatever lane they stood.

22.  Attention has also been drawn to the fact that the Plaintiff purchased his own MPF policy, as a self-employed person, and that no holiday benefit was paid to him.

Conclusion on this issue

23.  It is essential to have regard to the real substance of the matter and not be unduly deflected by matters of form, such as the description of the Plaintiff in Form 2 as the employer or the Tax Return describing him as an employee.  These features of the evidence undoubtedly have their place in the assessment but not to the extent that matters on the ground would have, such as the control that the 1^st Defendant exercised, the method of payment and the provision of tools.  I have decided that the reality of this situation was that the Plaintiff was an independent contractor of the 1^st Defendant.  The working set-up of the 1^st Defendant was that it provided its services to the 2^nd Defendant by engaging skilled workman like the Plaintiff to carry out the work.  He and his fellow workers were left very much to their own devices.  They were provided with the opportunity to earn their income by the provision of this work by the 1^st Defendant which is, after all, a very small organisation.  The sub-contract came to it from the 2^nd Defendant through its contacts in this business and it, in turn, engaged independent skilled workman to do the work paying them an amount less than it would receive from the 2^nd Defendant, thereby turning a profit for itself.

24.  In performing this work the only supervision by the 1^st Defendant’s foreman was very much of a liaison type between itself and the 2^nd and 3^rd Defendants as to quality control in the event of any difficulty over this.  If anything, the Plaintiff and his team had the most direct contact with the quality controllers from the 3^rd Defendant.

25.  The fact that the Plaintiff was asked to recruit additional workman himself, by the 1^st Defendant, also gives a relevant insight into the relationship between the two of them.  He was viewed as providing the labour services content for carrying out this work and he would gather his team of skilled colleagues.

26.  The fact that he would be paid the sum in gross by the 1^st Defendant, based on the number of containers that were repaired, is also significant particularly, when one has regard to the fact that it was he who would then distribute payment amongst his colleagues according to the number of containers that each of them had repaired.  This shows that the Plaintiff had his own, albeit small, organisation operating beneath the umbrella of the 1^st Defendant.  This tells very much against an employer/employee relationship.  The fact that they each paid their own MPF contributions provides some confirmation of this as well.  It shows that they were not part of the 1^st Defendant’s organisation but that each of them was doing business on their own behalf.

27.  I have taken into account the fact that the Plaintiff was supplied with tools by the 1^st Defendant which can be an indicator of employment rather than self-employment.  Nevertheless, this being only part of the overall picture that emerges it has not changed the general landscape so as to persuade me to come to the opposite conclusion.  Neither has the fact that in two, albeit important, forms the Plaintiff has been described as an employee.  It often happens at this level of relatively unsophisticated form filling that the wrong forms are used and/or mis-descriptions are entered and in my judgment this is what has happened here.  Similarly, for the foreman’s description of the Plaintiff to the Safety Officer as “a long term casual worker”.  There is no doubt that the Plaintiff was “long term” which is not really significant of itself reflecting only the Plaintiff’s good fortune in having found work that was of long duration.

28.  Therefore, in all the circumstances I have come to the conclusion that this is a case of the Plaintiff having been engaged as an independent contractor and I propose to assess the matter on that basis.

How the accident occurred?

29.  Before I can sensibly consider the various duties that have been pleaded and the denials of such duties by the various defendants it is essential to establish just how the accident occurred and the reasons why it occurred.  It is only then that I can begin to apply my findings of fact to the various pleas that have been tendered by the parties in their pleaded cases.

30.  The operation that was being carried out when the Plaintiff was injured was one that was performed several times a day fortunately without mishap until this occasion.  The procedure can be briefly explained.  The object of the exercise was to remove containers that had been repaired so that they could be reclaimed by their owners and put back into service and then to replace those with containers in need of repair.  The containers were all placed in well-defined and orderly rows and were systematically worked on by the workmen who were designated to their particular rows.

31.  The large front loaders that were used to do this are referred to as “Eagles”.  They are powerful pieces of equipment driven by skilled operators, in this case a Mr Cheuk Chi-Wing who was employed by the 2^nd Defendant and who had done this job for 16 years.  He held a valid permit to operate such a front loader and he had also attended a Safety Training Course for the Container Handling Industry and held a valid certificate to that effect.  The front loader that was being used on this occasion had been inspected and was in proper working order.

32.  The Plaintiff has given evidence as to how he came to be injured.  He was 35 at the date of the accident and began doing this kind of work in 1988.  He was therefore an experienced workman and well aware of what goes on in this kind of work place and working environment.  The accident occurred at about 6 pm, towards the end of the working day.  He had finished part of the two lines of containers that he had been assigned to work on.  The Eagle arrived at the place where he had been working and removed some of the containers.  Whilst this was being done he had stood between the two lines of containers close to where his tools had been placed.  After the containers had been removed he noticed that waste material and other rubbish had been left close to or under where the containers had been located.  Part of his duty was the removal of this rubbish which he had to put into waste bins located nearby.  This was all in order to keep the area clean and tidy and presumably therefore more safe for workmen who would have to walk about there.

33.  As he went to remove the rubbish an Eagle which was being driven by Mr Cheuk appeared from nowhere, so far as he was concerned, and lowered a container onto him causing serious injury to the lower part of his body.  As this was happening he was able to shout out loudly and, fortunately, the driver was able to reverse the lowering process and he was rescued by persons who were happened to be nearby.  His case is that he thought that the Eagle had driven away and would not be coming back for some time.  In fact what had happened was that Mr Cheuk had to carry out a number of manoeuvres at this time.  He had seen the Plaintiff waving to him to take away one of the containers but then noticed this particular container had not been passed.  It still requires further repairs.  He confirmed this with the control room by walkie-talkie.  This being the case he had to move this container out of the way and place it in the next row where the remaining repairs would be done to it before he could get at the next container that needed to be removed following its repair.  Page 171 (Bundle 1) shows what Mr Cheuk was required to do.  Having engaged this container and lifting it clear of the ground he reversed away and then forwards again to the next row to his left.  He drove forward to the position where he was to lower the container.  As he lowered it he observed that it would not sit on the ground in a horizontal position and then realized that someone was underneath the container.  It was the Plaintiff.  He immediately raised it so that the Plaintiff could be rescued.

34.  Mr Cheuk’s evidence is that when he was carrying out these manoeuvres with the container he could not see anybody in the immediate vicinity of the Eagle.  He considered that it was safe to move the container.  The evidence is that the Eagle is a very noisy piece of equipment when it is in operation and that it has flashing lights when it is in motion.  Anybody nearby would be very conscious of its presence and anxious to stay well clear of its path as it moved about.  A particular feature of the evidence is that when the Eagle is carrying a container the driver has a very significant blind spot or area in front of him.  There is no doubt therefore that Mr Cheuk would not have been able to see anybody approaching the spot where he was proposing to deposit the container that he was moving.  He could judge the correct position by reference to the sideways view that he had but not by looking ahead.

Who is to blame?

35.  Before I consider the position of each of the parties I propose to answer the question posed by the sub-heading to this part of the judgment.  The burden of course lies with the Plaintiff to prove his case based as it is on negligence and breach of statutory duty.  Essentially, where a large and potentially dangerous piece of equipment is being moved about in what is a reasonably confined space, I say confined in relation to the manoeuvres required to pick up the containers and re-position them in the lanes where they would be kept in order that they might be repaired, it becomes vitally important for the driver to have somebody on the ground to be his eyes and ears where so much of the area in front of him is in his blind spot.  He cannot be expected to safely carry out what can be fairly fine manoeuvring when he cannot see in front of him.  Because of this a person is usually positioned on the ground to tell him what is going on in the vicinity and to keep people away.  That is a basic necessity for this type of activity to be done safely and efficiently.

36.  On this occasion there was no such person, leaving Mr Cheuk to his own devices.  This is the main reason why the accident occurred.  Given that no such person was present it also seems to me that Mr Cheuk should have called for such a person to attend before he proceeded to do what he was doing when he injured the Plaintiff.  Further, it is also clear that Mr Cheuk in failing to call for that assistance should have at least taken added care to see that nobody was in the area before he proceeded with his task.

37.  I will also need to say something in due course on the issue of contributory negligence given the fact that the Plaintiff knew that these operations were on-going at that time albeit, that he thought the Eagle had moved away with its load and as to whether he should have heard the very loud noise made by the Eagle and seen its flashing lights and therefore kept away.  There is also the issue of whether the 1^st Defendant had provided him with a reflective jacket and if it had, whether he should have been wearing it and whether, if he had been wearing it, Mr Cheuk would have seen him.

How do these findings translate into liability and against whom?

38.  I am satisfied that the 3^rd Defendant had sufficient control of the site as a whole to have imposed upon it the duty of an “occupier” within the Occupier’s Liability Ordinance and, as such, it owed a common duty of care to somebody like the Plaintiff who was lawfully present.  The added feature is that it was the owner of the Eagle although, I appreciate, that it had made over its use to the 2^nd Defendant who employed the driver, Mr Cheuk.  In such circumstances it owed a duty to the Plaintiff to ensure that he was reasonably safe by virtue of the operations that it permitted on this part of the RTT.  This being the case it was incumbent upon the 3^rd Defendant to ensure that the Eagle was only permitted to carry out these tasks when somebody was on the ground guiding the driver and keeping bystanders at a safe distance, away from the vicinity of operations.  It should either have provided that person itself or ensured, by demand of the 2^nd Defendant and supervision, that the 2^nd Defendant provided such a person at all times.  Clearly, it had not and as a result the accident occurred.  I am satisfied therefore that the Plaintiff has made out his case both in negligence and for breach of the Occupier’s Liability Ordinance against the 3^rd Defendant.

39.  Almost, a fortiori, the case against the 2^nd Defendant must also succeed.  It should, most certainly, have always had a person on the ground whilst the Eagle was performing this kind of operation.  It failed to do so and in so doing was guilty of a most basic obligation.  Plainly, it too was a concurrent “occupier” within the Occupier’s Liability Ordinance and I have no doubt that in failing to establish what should have been an immutable system of having a “checker” on the ground it is also in breach of the common duty of care that it owed to the Plaintiff, as well as, in negligence.  It is additionally guilty by virtue of its employee’s Mr Cheuk’s negligence in driving the Eagle without somebody on the ground to guide him and also for attempting to drive the Eagle when no such person was available and present.  Additionally, he is culpable for taking insufficient care himself to ensure that nobody, such as the Plaintiff, was about when he was carrying out this operation.  He had failed to observe the Plaintiff when he should and would have done had he taken the appropriate amount of care.

40.  This being my view there must be judgment for the Plaintiff against both the 2^nd and 3^rd Defendants in the way that I have just indicated.

41.  The position of the 1^st Defendant vis a vis the Plaintiff is a little more difficult.  Firstly, I have no doubt that it too was a concurrent “occupier” of the site having regard to the fact that it was carrying out, through its independent contractors, lawful work there.  Mr Cheung submits that the 1^st Defendant owed a significant duty of care to the Plaintiff even if he was not its employee.  In this regard, he has drawn attention and relied upon the decision of the Court of Final Appeal in Rainfield Design and Associate Limited v Sui Chi Moon (2000) 2 HKC 419 per Bokhary P. J. at 425g-1:

“

I say at once that the mere fact of Mr. Siu having been an independent contractor rather than an employee makes no difference.  It is true that usually the person injured or killed would have been the employee of the person owing the statutory duty.  But I can see no reason why it makes any difference merely because the person injured or killed was an independent contractor rather than an employee.  Neither in terms of corrective justice nor in terms of distributive justice does there appear to be any reason in situations of this kind for distinguishing between employees and independent contractors.  There is no authority, principle or policy consideration calling for any such distinction.  Physical safety is plainly the paramount element of the law’s policy in this sphere.  The only concern is whether the person injured or killed as a result of non-compliance with a statutory duty was within the class of persons which such statutory duty was imposed to protect.  As a person working on a construction site, Mr. Siu was clearly within the class of persons which the statutory duty here in question was imposed to protect.”

42.  The 1^st Defendant’s case really amounts to this.  The operation of the Eagle and the removal of the containers was within the exclusive sphere of activity and responsibility of the 2^nd and 3^rd Defendants.  This being so it could do very little about how this work was to be done.  In such circumstances it did all it could by the provision of reflective yellow jackets which the Plaintiff and his colleagues should have worn to make them visible.  Beyond that there is nothing more that it could reasonably do to ensure the safety of person’s like the Plaintiff from suffering an accident in this sort of circumstances.  This is particularly so in the case of an experienced workman like the Plaintiff who should have been acutely aware of the dangers of being injured by an Eagle when it was carrying out this sort of operation.

43.  In this regard I get assistance from the case of McArdle v Andmac Roofing Company (1967) 1 All ER 583 where the court held that a defendant engaging sub-contractors was under a duty to see that reasonable safety precautions were taken for the sub-contractors.  The defendant should have foreseen that a failure to take precautions would endanger a sub-contractor but they have left it entirely to others (in this case the 2^nd and 3^rd Defendants) to take the necessary precautions and did nothing themselves.  In such circumstances they too must be liable to the Plaintiff.  This is further elaborated on in Munkman on Employer’s Liability, 13^th Edition para 4.40, 4.42 and 4.46–4.48 (pages 103–108).  In such circumstances, I am satisfied that the 1^st Defendant’s failure to take sufficient steps to ensure that “a checker” was on the ground when this operation was going on would put it, as well, in breach of its duty both under the Occupier’s Liability Ordinance and in negligence.  It is not sufficient in such circumstances for it to say that this was somebody else’s responsibility.  Given the fact that I have found it to be a concurrent occupier carrying out the most important work that was being done on this site by providing the repair and maintenance services, it was incumbent upon it to take proper steps to ensure that its sub-contractors were not subjected to these sort of dangers and to sufficiently liaise with the 2^nd and 3^rd Defendants for the provision of somebody on the ground to ensure safety whilst the Eagle was being operated.  Accordingly, I am satisfied that the Plaintiff has discharged the onus of demonstrating both negligence and breach of the Occupier’s Liability Ordinance against this Defendant as well.  This being so, there will be judgment for him against the Plaintiff.

44.  I had enquired of counsel for the Defendants as to whether I would need to indicate the extent of the Defendants’ contributions as between themselves in the event of my finding all three of them liable.  I was told that this would not be necessary.  In the circumstances, I do not propose to embark on that exercise, save to say, if it helps, that of the three of them I would have thought that the greater share of the blame for this accident should lie with the 2^nd and 3^rd Defendants although having regard to my findings all three are of course jointly and severally liable to the Plaintiff.

Contributory Negligence

45.  It is said against the Plaintiff, by all three Defendants, that he failed to take proper care for his own safety.  Here he was, potentially in harm’s way, in the immediate vicinity of a large and dangerous piece of equipment that was moving very substantial containers.  His evidence is that he thought, wrongly in the event, that the Eagle had moved away albeit for the time being, so that he was perfectly safe for him to try and remove the rubbish from where the container had originally been.  Nevertheless, I accept the evidence that once it is in motion, the Eagle is very noisy indeed.  Added to this is the fact that it comes with flashing lights which make it even more visible quite apart from the fact that, as the photographs show, it is a very substantial piece of machinery.  One could hardly miss it.  I am satisfied that the Plaintiff should suffer a significant reduction in his damages for contributory negligence.  In my judgment, he simply failed to take sufficient care for his own safety by not making sure that the Eagle had actually moved away from the vicinity of where he was working.  Had he taken even the most basic precautions, I am satisfied that he would have heard it, let alone seen it.  This was a culpable lapse of concentration on his part and I consider that his damages should be reduced by 25% to reflect his negligence in this matter.

Quantum of Damages

46.  These were clearly seriously disabling injuries.  It is fortunate that the fracture has united in a satisfactory position.  Dr Lam, the Plaintiff’s medical expert, has drawn attention to the intermittent hip pain which gets worse with squatting and prolonged walking.  There is also left knee pain if he were to walk from more than 30 minutes and numbness over the left inside thigh.  There is also moderate weakness of the hip and knee muscles and the Plaintiff is unable to fully squat.  As a result, Dr Lam is of the opinion that it would not be possible for the Plaintiff to resume his pre-accident employment. 

47.  On behalf of the Defendants, Dr Cheng, is in broad agreement with Dr Lam, but despite this, has come to the rather surprising, in the circumstances, view that the Plaintiff should be able to resume his pre-accident employment which he should be able to do by perhaps sitting on a stool if necessary whilst he was doing his work.  For my part, I consider this to be an unrealistic assessment.  I do not believe that the Plaintiff will be able to return to physically demanding work of this sort which requires full fitness and agility.  This is physically demanding work and this Plaintiff simply could not now carry out these sort of duties.  This must reflect itself particularly in relation to future loss of earnings.

Pain Suffering and Loss of Amenity

48.  The parties are agreed that the award under this head should be $350,000.00.

Special Damages

49.  This is also agreed in the sum of $10,200.00 being medical expenses of $7,550.00, travelling expenses of $1,650.00 and tonic food of $1,000.00.

Pre-trial Loss of Earnings

50.  It is accepted that the Plaintiff is entitled to his full loss of earnings for the period of sick leave from 29 April 2002 to 5 August 2003.  The Plaintiff says that his earnings were $18,500.00, whereas the defence say on a proper analysis of the tax assessment, his earnings were in fact $17,342.25.  I accept that this is the accurate amount consequently pre-trial loss of earnings during this period will be $17,342.25 multiplied by 15.23 months which equals $264,122.47.  Credit must be given for the sum of $46,800.00 paid to the Plaintiff by the 1^st Defendant during this period which therefore give a net amount of $217,322.47.  That is the total extent of the allowable full pre-trial loss of earnings.  The Plaintiff has put forward an additional claim until 1 May 2005 when the Plaintiff was able to secure work as a watchman earning $5,296.00 on the basis that as he had continued to experience pain after the end of his sick leave, he was not able to resume any form of employment.  For my part, it seems to me that there is no reason why he should not have found employment of this sort immediately following his sick leave and I decline to award any additional amount on this basis.  I am satisfied that the only reasonable employment that the Plaintiff could have obtained is doing work such as a watchman.  I propose to award a further amount for partial pre-trial loss of earnings from 6 August 2003 to the date of trial, being 5 November 2005, a period of 27 months at the rate of $17,342.25 minus his earnings as a watchman being $5,296.00 which is $12,046.25 multiplied by 27 months which comes to $325,248.75.  The total of full and partial pre-trial loss of earnings therefore is $542,571.22.

Post-trial Loss of Earnings

51.  I am satisfied, as I have already indicated that the Plaintiff will only be able to do the sort of work that he is currently doing having regard to the fact that he is now physically incapable of going back to his pre-accident employment.  Having regard to his age, now 40, it is reasonable to adopt a multiplier of 12.  This being so, the award for future loss of earnings will be $17,342.25 minus $5,296.00 equals $12,046.25 multiplied by 12 multiplied by 12 which equals $1,734,660.00

Loss of Mandatory Provident Fund Benefits

52.  I am making no award under this head, because on the evidence, it is clear that the Plaintiff was making his own payments as an independent contractor and under this head an employed plaintiff would be seeking to recover his employer’s contributions.  Therefore, no loss can arise here.

Summary

PSLA	$350,000.00
Pre-trial Loss of Earnings	$542,571.22
Future Loss of Earnings	$1,734,660.00
Special Damages	$10,200.00
Loss of MPF Benefits
Total	$2,637,431.22
Less 25% for Contributory Negligence	$659,357.81
Net Award of Damages	$1,978,073.41

53.  Accordingly, there will be judgment in this amount against the Defendants together with interest at 2% on general damages from the date of the writ to the date of judgment, and half of the judgment rate on special damages and pre-trial loss of earnings at half of the judgment rate from the date of the accident until the date of judgment.

Costs

54.  The Plaintiff will have his costs against the Defendants to be taxed on a party-and-party basis together with legal aid taxation of his costs in the event that he is in receipt of a legal aid certificate.  This order will be at order nisi in the usual way.