LAM HA FUK v. LUEN HOP DEVELOPMENT ENGINEERING LTD AND ANOTHER

HCPI 889/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 889 OF 2006

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J U D G M E N T

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Introduction

1.  This is an action commenced in October 2006 in which the plaintiff claims damages for injuries suffered during work on 11 April 2005.

2.  The defendants, respectively the employer and the principal contractor, deny liability.  They allege in essence that the plaintiff was injured because of his own fault (or his own pre-existing physical condition, which was not disclosed to the defendants earlier).  They also allege that, in any event, the plaintiff has recovered and his claim is exaggerated.

Background

3.  The following background is largely undisputed.

4.  The plaintiff was born in China in September 1967, and was therefore about 37 years old at the time of the accident (April 2005) and about 40 years old at the time of trial.

5.  He was a casual worker and was employed by the 1^st defendant (“D1”) to help move, push and pull electric cables by manual force.  He has been working for Mr Yu of D1 since 2003.

6.  On 11 April 2005, the plaintiff and other workers were tasked to install electric cables.  The cables were first lowered into a trench from a spool.  They were then pushed and pulled by the workers (including the plaintiff) along the trench.  The cables would go through an opening between the trench and the power station, so that one end of the cables would end up inside the power station for connecting to the electrical installations inside.

7.  In the past, a power winch would be used to pull the electric cables at the same time.  On the day in question, two dredgers (they are called “excavators” in the statement of claim) were used instead.

8.  At the time of the accident, the plaintiff was the worker responsible for pushing the cables through the opening between the trench and the power station.  Some of his co-workers were standing at other locations responsible for pulling the cables into the power station.

The Parties’ Respective Cases

9.  The causes of action relied upon are negligence, breach of statutory duty and breach the terms of the employment contract (against D1 only).  Particulars are, however, only given in the pleading as regards negligence and breach of employment contract (the same particulars are given for both causes of action and the written opening only refers to these causes of action).

10.  Irrespective of the various particulars given in the statement of claim, at trial the gist of the plaintiff’s case is that:-

(a)  inadequate manpower was arranged;

(b)    inadequate machinery was provided;

(c)  inadequate supervision or training was given;

(d)    requiring the plaintiff to stand on top of old cables inside the trench while working.

Findings

11.  Two witnesses testified at trial: the plaintiff and Mr Yu of D1.  As will be set out in more detail, their testimony differs over several aspects.

(a)  Adequacy of Manpower

12.  In his supplemental witness statement dated 24 September 2008, the plaintiff stated that the work team consisted for 12 to 13 workers initially.  The number went down to 8 on the next day.  By the date of the accident, only 6 workers (including him) were at the site.

13.  The statement of claim avers that he was working with 6 other workers on that day.  The plaintiff’s witness statement, on the other hand, states that he and 5 other workers were tasked to pull the cables (para. 11 thereof).

14.  When he was cross-examined, the plaintiff said that there were only 4 workers (including him) working in the trench.  There was also one co-worker operating the excavator and another co-worker looking after the cable spool.

15.  The plaintiff’s pleading has not made clear what he considers to be adequate manpower.  In his supplemental witness statement, he said that the work team should have at least 11 workers, and the work team must be assisted by a power winch.

16.  On the other hand, the defence contends that the number of workers required varies with circumstances.  On the relevant day, a work team of 5 to 6 workers would be sufficient to perform the job (with the help of machinery).

17.  Apart from the above shifts regarding the number of workers in the work team, this aspect of the plaintiff’s case suffers from various difficulties.

18.  The first difficulty arises from the total lack of evidence about the weight of the cables which the plaintiff himself has to handle.

19.  It is obvious that the cables in question were of substantial total weight, and probably also of considerable stiffness (they were said to be about 3.5 inches in diameter).  It is also common sense that more workers in the work team would mean less physical stress for each worker.  However, this aspect of this action is not about that, but about the reasonable level of manpower on the day of the accident.

20.  In view of the substantial total weight of the cables (the total length was said to be about 400 metres), it would very probably be beyond his physical ability if one worker were to maneuver them entirely on his own.  It is however undisputed that part of the cables was still on the spool, parts of them were resting on the trench floor and parts of them were resting on the opening.  The net result is that each worker in the team was only required to handle a relatively short stretch of the cables.  Evidence concerning the approximate weight of that stretch would thus be important to a proper evaluation of whether one worker could reasonably handle it.

21.  Closely related to the above difficulty are the fact that (1) the plaintiff was injured when he was pushing the cables (not when he was lifting or pulling them (see para. 22 below)) and (2) apart from assistance from other co-workers, pulling and lifting action was also provided by at least one dredger (this will be dealt with in more detail below).

22.  As regards para. 21(1) above, the plaintiff’s supplemental witness statement specifically states that his back was injured only at the later stage of the cable-laying process (the “stages” referred to therein were the “lifting” and “pushing” of the cables).

23.  It should also be noted that, irrespective of the total number of workers in the work team, the plaintiff has always been the one responsible for pushing the cables (see para. 4, supplemental witness statement).

24.  The fact that a work team of 8 workers managed to perform their work uneventfully (see para. 12 above) does not help the plaintiff’s case (see para. 15 above).

25.  In relation to para. 21(2) above, adequacy of manpower and adequacy of machinery/equipment are dealt with under two sub-headings.  This is only to facilitate discussion and comprehension, and does not mean that the two aspects have not been considered together.  In fact, they have been considered together because of their inter-relationship.

(b)  Adequacy of Machinery / Equipment

26.  As stated above, the plaintiff accepts that two dredgers were in use on the relevant day.

27.  The plaintiff does not allege that the power generated by two dredgers (or even one dredger) would not be sufficient to move or lift the cables.  His case is that dredgers are not the most appropriate tool to do such work (a power winch is the appropriate tool).

28.  The statement of claim does not state clearly why dredgers were inappropriate.  Nor has this been explained in the plaintiff’s witness statement or supplemental witness statement.  The explanation was only given when the plaintiff testified.  He alleges that the dredgers’ pulling force caused the cables’ literal movement to be jerky.

29.  The set-up involving the dredgers needs to be outlined to assist comprehension of this aspect.  The cables were placed inside the trench which was several feet deep.  The dredgers were at ground level (and hence several feet above the bottom of the trench).  They were driven to somewhere near the trench.  One end of a rope would then be tied to the dredger(s) and the other end would be tied to the cables (one at a time).  When the dredger(s) started to move away from the trench, the cables would be pulled forward by the rope.  The workers inside the trench (and inside the power station) would use manual force to guide the cables and to push/pull them into the power station (depending on where the workers were located).

30.  Bearing in mind the above set-up, and that the assertion of jerked movement only appeared in his court testimony, I do not find the assertion to be truthful.

31.  The defence submits that, because of the level difference between the dredgers (ground level) and the cables (trench bottom), the dredgers would also provide a lifting force, apart from a pulling force.  This is denied by the plaintiff.

32.  I also do not accept the denial and find that lifting force was also provided by the dredgers.

(d)  Adequacy of Supervision / Training

33.  There is no merit in the allegation of inadequacy of supervision.

34.  The operation was a relatively simple one involving the laying of cables, which essentially involved physical strength only.  It is undisputed the plaintiff has had quite some experience in performing such work (nor is there any allegation that his co-workers lacked experience).  In fact, when specifically queried by the court, the plaintiff was unable to specify what he considers to be adequate supervision.

35.  The allegation of inadequate training is likewise unmeritorious.  It is common ground the plaintiff has undergone training organized by D2 in 2004.  The training was directed towards working at sites of the China Light and Power Co. Ltd. (“CLP”), and included training on the lifting of heavy objects.  He has also attended safety training course organized by the Labour Department.

36.  The plaintiff argues that there should be training directed specifically at the pushing/pulling of cables, but cannot explain what that additional training would entail.  Defence witness explained that no such course had been offered by CLP (which was where the cables needed to be laid).

(e)  Other Matters

37.  Para. 10(d) above concerns requiring the plaintiff to step on the existing cables while working.  The defence explains that wooden boards were provided to the plaintiff for use as platform.  In any event, the plaintiff has not stated that (nor explained how) the lack of a work platform caused the injury.

Conclusion on Liability

38.  By reason of the above matters, I am not satisfied the plaintiff has established any negligence or breach of employment contract on D1’s part.  For the same reason, I do not find D2 to be liable either.

Quantum of Damages

39.  I will also deal with quantum for completeness.

40.  After the injury, the plaintiff was taken to the accident and emergency department.  After medical examination there, he was discharged.  Sick leave was recommended for 449 days (between April 2005 and June 2006).

(a)  Pain and Suffering and Loss of Amenities of Life

41.  The plaintiff’s medical expert, Dr Johnson Lam, while agreeing:-

“[the] presence of these ‘inappropriate signs’ suggests an element of exaggeration”,

relies on muscle guarding and spasm, disc protrusion/extrusion and inflammatory changes in support of his conclusion of genuine pain on the plaintiff’s part.  The “inappropriate signs” are those stated in the report of the defence medical expert, namely:-

“in the treatment examination, there are hardly any positive, subjective [probably a tying error for “objective”] signs to explain such symptoms. … there is no prolapse disc or nerve root compression, as clearly shown clinically and on the MRI scan. … there are signs of inappropriateness, especially the SLR tests in the lying and sitting position”.

42.  The difficulty with the conclusion of the plaintiff’s medical expert arises from the plaintiff’s age (of about 39 years at the time of examination).  At such age, degeneration unrelated to injury is commonly found.  Further, it is undisputed the plaintiff suffered a back injury earlier in 1998.  Bearing in mind the physical examination by the plaintiff’s medical expert took place about 1-1/2 years after the accident (the accident was April 2005 and the examination was November 2006), whether protrusion/extrusion and inflammatory changes were caused by the 1998 injury or later cannot be reliably ascertained.

43.  The defence medical expert opines that the plaintiff has only suffered a simple sprain of his back involving the soft tissue.  Because of the lack of relevant pathological findings, he concludes that the plaintiff has exaggerated his symptoms.

44.  In short, I prefer the opinion of the defence medical expert to that of the plaintiff’s.

45.  I therefore reject the claim of $350,000 and consider an award of $80,000 put forth by the defence to be more appropriate.

(b)  Loss of Earnings

46.  I also accept the defence submission that the plaintiff’s monthly income was only $11,735 and the appropriate sick leave period should be one year instead.

47.  For this reason, the award for pre-trial loss of earnings should be $147,861 ($11,735 x 12 months x 1.05).

48.  There is no loss of future earnings.

(c)  Loss of Earning Capacity

49.  There is no loss of earning capacity either.

(d)  Medical Expenses

50.  The proper award should be $5,000.

Costs Order

51.  The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendants to be taxed if not agreed.

52.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap. 91A).