LAU KAM TAI v. UNITED SOUNDFAIR ENGINEERING CO. LTD. AND OTHERS

HCPI436/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 436 OF 1996

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J U D G M E N T

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The Plaintiff's Case

1. The Plaintiff brings this claim for damages in respect of personal injuries allegedly sustained by him when he slipped and fell in a construction site at Kai Tak Airport on 5th May 1993 while working there.

2. This claim is brought against the Defendants on the basis that the Plaintiff was, at the time of the accident, employed by the 1st and/or the 3rd Defendants, and that the 2nd Defendant was the main contractor of the construction site in question, the 1st Defendant being the subcontractor.

3. At the trial I was informed by counsel who appeared for all three Defendants that it is conceded that the Plaintiff was employed by the 1st and 3rd Defendants at the time of the alleged accident and it is common ground that the 1st Defendant was the subcontractor to the 2nd Defendant in respect of the works undertaken at the site in question.

4. In a nutshell, the Plaintiff's case as pleaded was that on 5th May 1993, the Plaintiff was pushing a trolley loaded with mixed concrete down a ramp (called a 'pavement' in the pleadings) made from wooden planks and which led from the ground up to a mound of concrete, when he slipped and fell down this ramp and sustained injuries. The alleged negligence of the Defendants, if that had not been made clear in the particulars of the Amended Statement of Claim, was made abundantly clear in the Plaintiff's reply to the Defendants' Request for Further and Better Particulars that the thrust of the Plaintiff's case against the Defendants was that the ramp was wet and slippery thereby causing the Plaintiff to slip and fall when he was coming down this ramp pushing a trolley-load of mixed concrete. In this connection, it is also alleged by the Plaintiff that the Defendants failed to take adequate measures or precautions to keep the ramp sufficiently dry and clean so as not to be slippery. In the alternative, the Plaintiff says that if the Defendants were not aware that the ramp had become slippery and therefore dangerous to those using it, it was because the Defendants had failed to exercise proper care and attention and failed to provide adequate supervision towards the Plaintiff's safety while working on site.

The Defence Case

5. Apart from the fact that the Plaintiff was working on the site on 5th May 1993 and the concession made at the hearing by counsel that the 1st and 3rd Defendants are the employers of the Plaintiff, everything else appear to be in issue between the parties.

6. The Defendants deny that there was a mound of concrete 5 to 6 feet high on site on the day in question. It is also denied that there was a ramp leading up to this or any other mound of concrete. It is denied that the Plaintiff was involved with concreting work on that day but it is alleged by the Defendants that the Plaintiff was only assigned to remove rubbish and debris from the site. Moreover the Defendants deny that the Plaintiff had slipped or fallen while working on the site on 5th May 1993. At most, the Defendants say that the Plaintiff may have sprained or twisted his waist while working that day.

The Plaintiff's Evidence

7. The Plaintiff, Lau Kam Tai, gave evidence that on the afternoon of 5th May 1993, he was working at the site. Concrete was delivered to the site by barge. The concrete was poured on the ground using the crane from the barge. This concrete formed a mound of some 5 to 6 feet high and about 8 to 10 feet in diameter on the ground.

8. The Plaintiff was given the task of transporting the concrete from this mound to various locations on the site where another worker, Tsang Kwong Tai, was filling in the concrete into what was called blinding concrete works and levelling it. These locations where Tsang Kwong Tai was doing this blinding concrete work was between 30 and 60 feet from where the concrete mound was located.

9. In order to transport the concrete to those locations for Tsang Kwong Tai to use, the Plaintiff employed the use of a wheelbarrow. Initially the Plaintiff shovelled the concrete from the periphery of the mound into the wheelbarrow for transporting. However, as the concrete on the upper part of the mound did not settle down to take the place of those shovelled off from the periphery, the Plaintiff found it increasingly more difficult to shovel the concrete on the ground level because as he came closer to the centre of the mound, the concrete on the ground was under more and more pressure, being at the bottom part of the mound. Moreover he was afraid that the concrete on top may collapse if he continued shovelling too far into the centre of the mound.

10. Therefore the Plaintiff, on his own initiative, using wooden planks which were available on the site, built a ramp with some three such pieces sloping up from the ground to a height of about 3 feet onto this mound of concrete. This ramp was supported underneath by other material and debris found on the site, and the three pieces of wooden planks were piled on top of the debris and leading up to the mound of concrete, overlapping each other at the ends but without any nails or other means of fixing the ends. With this ramp the Plaintiff was able to push his wheelbarrow up the ramp and at the top of the ramp he was able to shovel the concrete on the very top of the mound into the wheelbarrow to be transported down the ramp and to the various places on the site where the concrete is needed for concreting works.

11. In the afternoon of that day at about 4.45 pm, after he had transported about some ten odd wheelbarrow-loads of concrete using this ramp, the Plaintiff was coming down the ramp with a wheelbarrow-load of concrete when he slipped on the ramp, lost his footing and fell off the ramp onto the ground at the side of it. When he fell, his buttocks hit the ground and he felt pain at his waist at the back.

12. A while later Tsang Kwong Tai, a co-worker of the Plaintiff, came over to assist the Plaintiff. As the Plaintiff was in pain, he could not continue to work but sat there and took a rest until the motor sampan came to transport them back to the site office.

13. The Plaintiff gave evidence that when he had the accident, the boss, Ho Kam Cheong was no longer at the site, having left the site at about 4 pm that day. Nor could the Plaintiff see the foreman Keung Yau Choi on the site. He was only assisted by Tsang Kwong Tai who helped him to the seawall where the motor sampan was but he had to descend slowly by himself the vertical metal ladder going down to the sampan.

14. Back at the site office, he found the 1st Defendant's office, which is situated in a container, locked and his boss could not be found. He was also unable to find the 3rd Defendant, his other boss. As a result he did not report the accident to anyone in charge on that day. He, Tsang Kwong Tai and another worker then changed inside another container which is used by the workers as a changing room and again Tsing Kwong Tai helped him walk out from the site to take transport home.

15. The next morning, i.e. 6th May 1993, the Plaintiff came to the site office but did not see his boss, Ho Kam Cheong, there. He took the sampan to the site. At 10.00 am or so he saw Ho Kam Cheong, the boss, arrive at the site. He immediately informed his boss of his accident and that he was in pain and could not work. Ho then called for the sampan and took the Plaintiff back to the site office where Ho wrote a letter for the Plaintiff to bring along with him to the Queen Elizabeth Hospital for medical treatment. At the hospital the Plaintiff was given sick leave by the doctor attending him.

16. Under cross-examination the Plaintiff said that on the day of the accident, that was the first time on that site that a ramp was used to go up a mound of concrete. The reason was because the barge used to deliver the concrete on that day was smaller than the one normally used to deliver concrete and the arm of the crane on this smaller barge was not long enough to reach all the different areas on the site requiring the concrete.

17. The Plaintiff also conceded that there was no worker sprinkling water on the mound of concrete at the site despite the fact that in his witness statement he had said that there was.

18. When questioned as to why he did not go to a hospital or consult a doctor in the evening of 5th May after he had had the accident and was feeling pain, the Plaintiff answered that he had to report to his boss and ask the boss' permission to go to see a doctor therefore he did not consult a doctor on the evening of 5th May since he could not find his boss after the accident.

19. When it was pointed out to the Plaintiff that the letter given to him by his boss states that he had sprained or twisted his waist while at work, the Plaintiff was adamant that he had told his boss on the morning of 6th May that he had slipped and fallen and had hit his buttocks on the ground. He said in evidence that when he told this to his boss, the boss did not know the Chinese character for "hitting his buttocks on the ground" and had asked another person present there by the name of Yuen Yau how to write that character in Chinese. As Yuen Yau also did not know how to write it, he, the Plaintiff, did not know what his boss had written down on the letter which was subsequently given to him by his boss.

20. When confronted with two Notices of Request for Employee's Compensation dated 28th July 1994 and 8th August 1992 (both counsel agree that the second Notice of Request for Employee's Compensation could not correctly be dated 1992 as the accident took place in 1993 but that the date '1992' must be a mistake by whoever wrote it) the Plaintiff agreed that both these Notices bore his signature, saying that he was asked by somebody from his employers to sign these forms but that he did not know the contents that were written there when he signed as he was unable to read, being almost illiterate. He denied he had ever told anyone that he had twisted his waist as was stated in both these Notices.

21. The Plaintiff called as his witness Tsang Kwong Tai. Tsang gave evidence that from October 1992 he and the Plaintiff worked for the 3rd Defendant at this site doing the night shift but at the end of April 1993, both of them were transferred to the day shift for which Ho Kam Cheong was the boss.

22. On the day of the accident he and the Plaintiff were doing blinding concreting work at the site. He was responsible for filling in and levelling the concrete while the Plaintiff had to transport the concrete to him by wheelbarrow. Some time during that afternoon the Plaintiff did not appear for a long while with his wheelbarrow of concrete, so he turned around to look for the Plaintiff and saw the Plaintiff squatting by the side of the wooden planks. Tsang went over to where the Plaintiff was squatting. The Plaintiff told him that he had fallen down and was in pain. Tsang described the planks as a bridge built by the Plaintiff about 12 feet long leading up to the mound of concrete which was about 5 to 6 feet high, but could not say to what height of this mound the bridge led up. The other end of the bridge was on the ground.

23. Tsang also told the Court that at the time the boss Ho Kam Cheong was not at the site although he had been at the site that day until about 3 pm.

24. Tsang then helped the Plaintiff up and told the Plaintiff to go to one side to rest. Tsang then continued to work himself and when he finished his work at 5.30 pm that day, he assisted the Plaintiff to the sampan and later assisted the Plaintiff to go home after they had changed clothes. At no time did he see the boss around in the vicinity of the site office.

25. In cross-examination Tsang said that for the first two hours in the morning of the day of the Plaintiff's accident, there was no need to use wheelbarrow to transport concrete but later on that morning, as the concreting work was farther away from the seawall, he saw a mound of concrete deposited by the barge which was 5 to 6 feet high. In the afternoon the barge again deposited another mound of concrete, also about 5 to 6 feet high. Tsang also said that at about the time the Plaintiff had the accident, he was working some 50 to 60 feet away from where the Plaintiff had the accident.

26. He disagreed with counsel's suggestion that he Plaintiff never told him that the Plaintiff had slipped and fallen. He also disagreed with the further suggestion that he and the Plaintiff had concocted this story of the Plaintiff slipping and falling.

The Defendants' Evidence

27. All three Defendants were jointly represented by the same firm of solicitors and the same counsel at trial. Three witnesses of facts were called on behalf of the Defendants. They were Ho Kam Cheong, a director of the 1st Defendant and the person referred to by the Plaintiff as his 'boss'; Chan Ah Kwai, a worker employed by the 1st Defendant working in the night shift; and Keung Yau Choi, the foreman of the day shift also employed by the 1st Defendant.

28. Ho Kam Cheong gave general evidence as to the workings at the site in the day shift including how concrete was delivered by barge to the site. He said that if the panels requiring the concrete was near enough to the seawall, the barge would simply pour the concrete onto those panels using the crane on the barge. However if the panels requiring the concrete were out of reach of the barge, the concrete would be poured onto lorries from the barge and then transported by the lorries to those panels requiring the concrete. (The suggestion being that there would never be a heap of concrete on site which needed to be transported by wheelbarrows to the panels requiring them.)

29. It was also Ho Kam Cheong's evidence that he was not on site for the whole of 5th May 1995, but he was in the Wanchai office of the 1st Defendant all of that day.

30. He also gave evidence that the Plaintiff together with several other workers, including Tsang Kwong Tai, were transferred from working in the night shift to the day shift for the purpose of clearing up the debris on site in preparation for the joint sealant works.

31. According to Ho Kam Cheong, the blinding concreting works were being carried out by Tsang So, an independent subcontractor and workers engaged by Tsang So at the site on 5th May 1993 and that neither the Plaintiff nor Tsang Kwong Tai was involved with concreting works on that day.

32. In the morning of the following day (i.e. 6th May 1993), inside the 1st Defendant's office the Plaintiff complained to him that the Plaintiff had sprained his back the day before. He then reprimanded the Plaintiff for not having informed either him or the 3rd Defendant before going off work the day before, and warned the Plaintiff that the 1st Defendant may not treat the Plaintiff's injury as having been sustained in the course of his employment due to late notification.

33. According to Ho, the Plaintiff then told him that he had sprained his waist while pushing a trolley of concrete pieces. He was quite certain that the Plaintiff had said "concrete pieces". At no time did the Plaintiff inform him that the Plaintiff had slipped and fallen.

34. He then wrote a piece of paper in Chinese along the lines of what had been told him by the Plaintiff and gave that piece of paper to the Plaintiff for the Plaintiff to see a doctor.

35. He also gave evidence that the Form 2 under the Employee's Compensation Ordinance submitted to Labour Department and dated 11th May 1993 was filled in according to what the Plaintiff told him had happened.

36. In cross-examination, Ho Kam Cheong said he was not on site on 5th May 1993. Supervision was left to the foreman, Keung Yau Choi on site. He had no idea who the foreman had assigned to do what work on that day. Nor did he know the exact number of workers working on site on that day. He also agreed with counsel for the Plaintiff that the site record for 5th May 1993 showed that no truck or lorry was engaged to work on the site that day.

37. When cross-examined on the Form 2 submitted to the Labour Department in respect of Employee's Compensation, he agreed that the Form 2 was signed by him but said that the contents were filled out by a colleague of his in the office, not by him. He admitted that he had related to his colleague what the Plaintiff had told him as to how the matter had occurred and then his colleague had filled out the Form 2.

38. In answer to questions from the Court, Ho Kam Cheong said that on the morning of 6th May 1993, when the Plaintiff was relating to him how the Plaintiff was injured the day before, the Plaintiff had told him that the Plaintiff was pushing a trolley loaded with "broken pieces of concrete" and was adamant that those were the Plaintiff 's own words.

39. He also said that the Cantonese word (transliteration 'DUN') meaning to fall on one's buttocks is a word that can be said in Cantonese but cannot be written out.

40. The defence also called a witness Chan Ah Kwai who was at all time a night shift worker at the site. As such it is common grounds that this witness was not present on site in the day time of 5th May 1993, the day the alleged accident happened.

41. Chan gave evidence of a course on safety precautions on site held in the office of the 2nd Defendant shortly before he and other workers including the Plaintiff started work on the site in October 1992 and the course was attended by himself and other workers including the Plaintiff. One of the requirements told to them was that the workers should always be wearing rainboots on site which is to prevent slipping on wet surfaces. Thereafter all workers were provided with rainboots among other accessories for use on site.

42. He also gave general evidence about the use of and the operation of skips for pouring concrete on site. The kind of skips used on site is termed a 'satellite skip'. In his experience on site, he had never poured two skipful of concrete onto one and the same mound because the height of such a mound would make it difficult to work on. Moreover if there is already one skipful of concrete on the ground, it would be difficult to stand at that spot and operate the skip in order to pour a second skipful of concrete on top of that mound.

43. Keung Yau Choi, the foreman of the day shift on the site also gave evidence for the defence. He said that he was on duty at the site on 5th May 1993. He was responsible for assigning work to the workers and supervising them. He saw the Plaintiff working that day, and the Plaintiff was assigned the duty of clearing out the rubbish on site.

44. Concreting work that day was assigned to Tsang So and his workers. The concreting work that day involved the filling of concrete for four panels which were only two rows from the seawall. Each panel being 6 metres x 6 metres.

45. He did not see any pile of concrete on the site about 5 feet to 6 feet high and there was no need for such a pile of concrete. Neither did he see anyone using wheelbarrow to transport concrete on site. He also did not see anyone going up a ramp to transport concrete.

46. He was provided with a walkie talkie with which he could contact either the motor sampan or the site office of the 2nd Defendant, i.e. the main contractor. Throughout that day the Plaintiff did not complain to him of any injury or accident, nor did anyone else. After 5th May 1993 he had not seen the Plaintiff working at site any more, he only saw the Plaintiff when the Plaintiff came back to collect his wages.

47. In cross-examination he said that he was approached some two to three months earlier by the solicitors for the Defendants and asked to give a witness statement, and that between 5th May 1993 and the time he was approached by the Defendants' solicitors, he had not been asked nor had he discussed with anyone else the matters which occurred on 5th May 1993 concerning the Plaintiff. He went on to say that he did not keep any record himself as to occurrences on site and he did not know if the Defendants had any such record but when he was asked for a statement by the solicitors for the Defendants, he gave his statement without referring to any such records. He only relied upon his own memory.

48. When asked by counsel for the Plaintiff what had happened on site on 4th May 1993, he could not remember. When pressed by counsel for the Plaintiff for an explanation as to why he could, relying solely on his memory, remember so clearly what had happened when asked by the solicitors for a witness statement over five years later, Keung Yau Choi said it was because on the night of 5th May 1993, he had an appointment with his wife for dinner, but went on to say that there was nothing special about that dinner with his wife.

49. When questioned further by counsel for the Plaintiff, he was unable to remember what Tsang Kwong Tai did on 2nd, 3rd and 4th May 1993 on the site. He was also unable to remember what the Plaintiff did on site on 2nd and 3rd May, nor could he remember if the Plaintiff was at the site on those days at all.

50. When questioned about Tsang So, he could not say if Tsang So did any work on site between 1st to 7th May 1993 but could only remember that Tsang So was working on the site on that one day, i.e. 5th May 1993. When it was finally put to him by counsel for the Plaintiff that Tsang So was not working on site on 5th May 1993, he said he cannot remember.

51. Lastly he agreed that no truck or lorry was operating on the site on that day and also agreed that when the Plaintiff was switched from night shift to day shift, no specific work was assigned to the Plaintiff for his day-shift work.

52. At the end of his evidence in answer to questions by the Court, he said that when he finished work on 5th May 1993, he returned to the site office in the same motor sampan as the Plaintiff, Tsang Kwong Tai and two other workers. At that time the Plaintiff appeared normal to him and did not require any assistance from anyone. The Plaintiff did not complain to him about being injured and did not appear to be in pain.

Evidence of the Experts

53. The Plaintiff called an expert on chartered, civil, structural, environmental and materials engineer, Dr Sammy Y.N. Chan to give evidence while the Defendants called James Lau, a registered professional engineer in civil, structural and geotechnical engineering.

54. In the reports given by both these experts, the major part of their reports dealt with matters of facts arising from the statements of the parties and the witnesses in this case. Both experts attempted to deal with these matters of facts and to arrive at a conclusion based on those facts as to liability as well as whether such facts given by a particular witness is or is not believable. I should say here that as has been reiterated so many times by these courts it is never within the province of an expert to even attempt to decide question of facts, let alone liability, which are matters for the court to determine. Experts should confine their opinions to specialised fields such as science or technology etc. which requires specialised knowledge gained from studies or experience.

55. In the present case, the only area of dispute which requires expert evidence is indeed confined to a very small area, namely, whether the concrete used at the site on 5th May 1993 could have been heaped up to a height of 5 to 6 feet high.

56. In this respect, both experts based their evidence on the fact, which was common ground, that the concrete used on site on the day in question was "grade 10/20 and 50 slump concrete". Neither expert saw for themselves the actual concrete used. This fact was information provided to them from documentary records of the Defendants.

57. Dr Sammy Chan gave evidence that for "10/20 and 50 slump concrete", 10 indicates the strength of the concrete, i.e. 10 newtons per metre square and 20 is the nominal sign of large aggregates used. This is a low strength concrete generally used for blinding layers. All this is agreed to by Dr James Lau and there is no dispute between the experts here.

58. Where they differ concerns the 50 slump. According to Dr Chan, 50 slump is a very dry mix, with very low flowability. But according to Dr Lau, 50 slump is a very workable and highly fluid mix of concrete which would settle easily.

59. Dr Chan's evidence is that the fluidity of concrete is measured by a slump cone test, the height of the cone being 300 mm. Concrete is then poured into the cone and compacted to fill up the whole cone. The cone is then removed and the compacted concrete is allowed to flow, settle and spread. The drop in height (when it is left to flow and spread) is measured and is recorded as the "slump" of the concrete mixture. For normal concrete mixture the workability is usually between 50 mm and 100 mm slump. Therefore the concrete used on site on 5th May 1993 being of 50 slump (meaning 50 mm slump when carried out with the cone test) denotes it to be a rather dry mix of concrete. With such a dry mix of concrete, a concrete heap could easily be several feet high.

60. Dr Chan went on to say that with concrete as dry as a 50 slump mix, the angle of the heap could be as much as 71°. However generally he would expect the angle of a heap made form 50 slump concrete to be in the region of 45°.

61. On the other hand, Dr James Lau said in evidence that 10/20 concrete is a very weak concrete and that means the angle can be very small. Less than 45°, since the concrete is very workable, and it will settle by itself very quickly on the ground. In his opinion the angle of the heap would be about 25°.

62. Both experts were cross-examined. Dr Chan's evidence was not in the least dented in cross-examination but the same could not be said of Dr James Lau.

63. Under cross-examination, Dr Lau agreed and accepted the cone test as a test of the fluidity of concrete as described by Dr Chan in his evidence. However Dr Lau was not able to say what was the angle of the cone used to carry out such test to determine the fluidity of a concrete mixture.

64. When asked how he had arrived at the angle of the heap of such concrete being about 25°, Dr Lau said he had based that on the diagram of the concrete heap attached to the Plaintiff's witness statement. Although he was aware that that diagram was not drawn to scale, he thought the diagram was about right showing the angle of the concrete heap to be about 25°. From that he had calculated the base of that concrete heap to be about 25 feet in diameter.

65. When it was put to Dr Lau that Dr Chan had said in evidence that 50 slump concrete is a rather dry concrete and would not be as fluid as 100 slump concrete, Dr Lau said that 50 slump is very commonly used in Hong Kong whereas very few people would use 100 slump any more. He added that even with 50 slump concrete he had never seen the angle of a heap greater than 25°. However, when further told that Dr Chan had said that with 50 slump concrete the angle of a mound would be normally around 45°, Dr Lau somewhat changed his stance and agreed that it is not impossible for such a concrete mound to have an angle of 45°.

66. From this cross-examination it can clearly be seen that as between the evidence of these two experts, that given by Dr Chan is by far the more reliable and I have no hesitation accepting and preferring Dr Chan's evidence in so far as it conflicts with that of Dr Lau.

Findings of Fact

67. The Plaintiff has been shown to be a person who exaggerates -- particularly in relation to the extent and/or severity of the injuries he had suffered as I shall be dealing with that aspect later on in this judgment. In so far as the issue of liability is concerned, he has also been shown to exaggerate by stating in his witness statement that there was a worker who was splashing water on the concrete mound at the site on 5th May 1993 thus making the ramp wet and slippery. However at the trial, the Plaintiff readily conceded (once he was asked in cross-examination on this aspect of the case) that there was no one splashing water on the concrete.

68. Despite such exaggeration which has been quite clearly shown of the Plaintiff, I have, nevertheless, come to the conclusion that I can accept as true the Plaintiff's account of the accident. This is mainly because I have reached the conclusion that Tsang Kwong Tai is a wholly truthful and reliable witness in this case and his evidence supports to a great extent the Plaintiff's account of what happened. I say to a great extent because it remains a fact that Tsang Kwong Tai did not actually witness the Plaintiff slipping and falling when coming down the ramp. All Tsang could say in evidence was that when he looked up, he saw the Plaintiff squatting by the side of the planks which made up the ramp, and the wheelbarrow was nearby the Plaintiff, on the ground partly overturned with some of the cement spilled on the ground.

69. I have also taken the view that both the Plaintiff and Tsang Kwong Tai, being of low educational standard, and being inarticulate with words, this had a bearing on the manner and the effectiveness with which they had answered questions in cross-examination. This had been taken into account in my assessment of them as witnesses.

70. On the other hand, in so far as the witnesses called by the Defendants are concerned, I have no hesitation whatsoever in finding that the foreman Keung Yau Choi's evidence to be wholly unreliable as has been demonstrated by the cross-examination of him. His witness statement was dated August 1998 (some eight months before the trial) and yet under cross-examination he was under the mistaken belief that it was only two to three months before the trial that he was approached by the solicitors for the Defendants to give a statement. If he cannot remember that it was about eight months ago when he gave his witness statement, how could he be expected to remember a very normal work day on site well over five years ago with nothing to aid his memory for in his own words "nothing special" happened on 5th May 1993.

71. Apart from the evidence of Keung Yau Choi, there is no other direct evidence called by the Defendants to show what actually happened on site on 5th May 1993 because both the other two witnesses, namely Ho Kam Cheong and Chan Ah Kwai, by their own evidence, were not on site on that day.

72. It was alleged by the Defendants that Tsang So and his workers were doing the concreting works on 5th May 1993, but Tsang So was not called as a witness.

73. The Defendants also say that there was not or would not have been a mound of concrete 5 to 6 feet high on the day in question. While there is evidence from both the Plaintiff and Tsang Kwong Tai that there was such a concrete mound, the barge operator and the skip operator were not called to contradict the Plaintiff's evidence.

74. The Defendants also sought to rely on the Site Diary for 5th May 1993 together with a Layout Plan for the Pavement Arrangement to show that whatever concreting work was being done on 5th May 1993 on site, they were done in relation to panels which were close enough to the seawall such that there was no need to use wheelbarrows to transport any concrete to them. The Site Diary, although agreed as admissible evidence by the parties, were in fact made up by personnel from the 2nd Defendant, i.e. the main contractor. No witness was called who had actual knowledge of the entering of this diary. Whilst the diary states that concreting blinding was carried out along two rows of panels closest to the seawall, there is no evidence to show that this diary is a complete record of the works that went on on the day in question and nothing in the diary to indicate that blinding concrete works did not take place anywhere else other than those two rows of panels closest to the seawall. In the absence of such evidence, I am not prepared to draw any inference from this diary sufficiently to counter or offset the evidence of Tsang Kwong Tai that he was doing concreting works at a spot some 60 feet or so further inland from where the mound of concrete was heaped.

75. In so far as what the Plaintiff told Ho Kam Cheong the next day is concerned, I find it extremely strange, that if Ho Kam Cheong's version is to be believed, there is absolutely no evidence from either Ho Kam Cheong or from Keung Yau Choi, the foreman, that Ho Kam Cheong had made any enquiries from Keung Yau Choi as to whether or not the Plaintiff did have an accident on site the day before and/or whether the Plaintiff had reported such an accident to Keung. Instead the evidence from Ho was that at the site office on the morning of 6th May 1993, once the Plaintiff told him of the injuries which the Plaintiff sustained the day before, Ho had criticised the Plaintiff for not reporting the matter to him the day before when, on his own evidence, he was at the Wanchai office of the 1st Defendant for the whole of 5th May 1993. There is no evidence that Ho had even asked the Plaintiff if he had reported it to the foreman Keung Yau Choi, nor is there any evidence that Ho had made any enquiries from Keung before writing the chit to the Plaintiff for him to see a doctor. Yet Ho's evidence was that he had warned the Plaintiff that this may not be treated as an accident at work because of the Plaintiff's delay in reporting it.

76. A further piece of evidence from Ho Kam Cheong which causes me to doubt the veracity of his evidence is that he said in evidence that when the Plaintiff was relating to him how the Plaintiff sustained his injury, the Plaintiff said to him that the Plaintiff was conveying "broken pieces of concrete". He was quite adamant that these were the Plaintiff's own words. However, time and again, when the Plaintiff was giving evidence in the witness box, I had noticed that the Plaintiff, perhaps because of his inarticulateness or of his imprecision with words, would simply use the word "concrete" without making any distinction as to whether he was referring to mixed concrete or concrete pieces. This was particularly noticeable when he was cross-examined on this aspect of the case by the Defendants whose case was that the Plaintiff was only given the task of clearing concrete pieces off the site on 5th May 1993. On all those occasions when he was in the witness box, the answers by the Plaintiff had to be made clear by a further question eliciting from him whether he was referring to mixed concrete or concrete pieces.

77. I therefore have grave doubts as to whether the Plaintiff would have been so precise in his choice of words when relating the incident to Ho Kam Cheong as alleged by Ho in his evidence.

78. In all the circumstances of this issue, I prefer the Plaintiff's evidence to that of Ho Kam Cheong's on balance. Moreover the Plaintiff's evidence on this issue accords with my accepting Tsang Kwong Tai's evidence which, amongst other things, is to the effect that the Plaintiff had told Tsang that the Plaintiff slipped and fell.

79. For the reasons stated above I make the following findings of facts in this case :-

(1) On the afternoon of 5th May 1993, a mound of mixed concrete of the type referred to by both experts to a height of some 5 to 6 feet high was on site.

(2) Tsang Kwong Tai was carrying out blinding concreting works at a distance of some 60 feet away from this mound and the Plaintiff had to convey concrete from this mound to the place where Tsang Kwong Tai was working by using a wheelbarrow.

(3) When it got to a stage that the Plaintiff found it difficult to load concrete from the periphery of this mound at ground level into his wheelbarrow for the purpose of conveying it to where Tsang was working, the Plaintiff decided on his own initiative to construct a makeshift ramp using wooden boards which were available at the site in order to reach the top of this mound to load the concrete into the wheelbarrow. The ramp was constructed by the Plaintiff and led up from ground level to some 3 feet or so onto the mound.

(4) After the ramp was constructed it was used for quite some time -- by the Plaintiff himself on no less than 10 odd times -- to reach the top of the mound for loading and conveying concrete. Because of this usage, the ramp had become more slippery than at the outset due to the wet concrete being spilled on it from the wheelbarrows transporting concrete down from this mound.

(5) When the ramp was constructed and used for this purpose, Ho Kam Cheong was at the site and could have seen the use of this ramp to reach the top of the concrete mound for himself. However no steps were taken to put a stop to the use of this ramp. Ho Kam Cheong left the site at around 4 pm.

(6) At about 4.45 pm while transporting a barrow full of mixed concrete down the ramp, the Plaintiff slipped, lost his footing and fell down the ramp hitting his buttocks on the ground beside the wooden planks.

(7) I also make the finding that because the Plaintiff was in pain after the accident, he could not continue his work for that day but rested on site. At the end of the day he was assisted back to the site office by Tsang and then assisted home.

(8) After the Plaintiff had his accident, neither the foreman nor Ho Kam Cheong could be found either on site or at the site office. It was due to this and the Plaintiff's own belief that he had to report the accident to his boss in order to get medical treatment that he waited until the following morning before obtaining medical treatment after informing Ho Kam Cheong of his accident.

(9) On the following morning i.e. 6th May 1993, the Plaintiff informed Ho Kam Cheong that he had slipped and fallen and hit his buttocks on the ground the day before on site.

(10) I also find that when the Plaintiff signed on the Request for Employee's Compensation forms, the form had been filled out by someone other than the Plaintiff and that the Plaintiff had signed it without fully appreciating the contents of it, particularly in relation to how the accident occurred because his educational standard was such that he could not fully understand what had been put down.

Liability

80. On the facts as I have found them, there is no evidence before me that the Plaintiff was given any specific directions or instructions by his employers, the 1st and 3rd Defendants, the means whereby he should load and convey the concrete to where it was needed. It appears from the evidence that the Plaintiff was left to load and convey the concrete as he saw fit. I note also that at the outset the Plaintiff conveyed the concrete from the periphery of this mound at ground level by shovelling it into the wheelbarrow and did not use the ramp at the initial stages. It was only when it became more and more difficult to shovel the concrete as the periphery of the mound became increasingly smaller that the Plaintiff then took to the idea of building a ramp in order to reach the top of the mound.

81. It is always the duty of an employer to provide not just a safe place of work, but also a safe method whereby the workers can carry out their work. This duty is not delegable -- not even to the workers themselves.

82. In the present case there is evidence from the experts that in the case of mixed concrete which is wet, the longer it takes the harder the concrete becomes and is therefore less workable. What it amounts to is that in this case the Plaintiff had to get on with the work before the concrete hardens. Left to himself, he had to devise the system of the ramp, possibly not the best method to go about it, but the best that he could devise in the circumstances.

83. In leaving it to the Plaintiff to find his own way to reach the top of the mound by the use of the ramp which ultimately proved to become slippery because of the spilled concrete, the 1st and 3rd Defendants were in breach of their duty to the Plaintiff. They were further in breach of their duty by failing to take any adequate steps to ensure that the ramp, after it was built and when it was being used, was free from spilled concrete such that it became slippery and therefore dangerous to those using it.

84. The defence of volenti non fit injuria was put forward, seemingly for the first time at final submission stage by counsel for the Defendants. I say this because it was not pleaded as a defence in the pleadings and even when it was raised in final submission, no application was made for leave to re-amend the Amended Defence. The judgment in James v. Wellington City [1972] N.Z.L.R. 978 is authority to say that this defence should be specifically pleaded if it is sought to be relied on.

85. Quite apart from the fact that it was not pleaded, there is clear authority contained in the judgment of Goddard L.J. in Bowater v. Rowley Regis Corp. [1944] KB 476 that in employer employee cases based on common law negligence, the defence of volenti non fit injuria must be applied with extreme caution. The reason for this can be found in the words of Hallett J in Merrington v. Ironbridge Metal Works Ltd. [1952] 2 All ER 1101 at 1103 :

"... a real assent to the assumption of the risk without compensation must be shown by the circumstances ... If, however, a man acts under the compulsion of a duty, such consent should rarely, if ever, be inferred, because a man cannot be said to be 'willing' unless he is in a position to choose freely."

Even if this defence had been pleaded, on the facts as I have found them, the Plaintiff would not, in my mind, have been in the position to make a free choice such that he could be said to have been willing to undertake the risk involved and to have waived his rights of action against the Defendants in respect of their breaches.

86. In my judgment, therefore, the defence of volenti non fit injuria fails.

87. The injuries suffered by the Plaintiff being a direct result of the breaches by the 1st and 3rd Defendants as employers to the Plaintiff, I find them liable in negligence to the Plaintiff.

88. In so far as the 2nd Defendant is concerned, he is the main contractor and is also liable to the Plaintiff for all the reasons aforesaid in that it is in breach of Regulation 38A of the Construction Sites (Safety) Regulations, Cap.59.

Contributory Negligence

89. In cross-examination the Plaintiff conceded that before he met with the accident, he knew that the ramp was wet and slippery, a reference no doubt to the spilled concrete on the ramp which must have been apparent to everyone present. However the Plaintiff continued to say that even though with such knowledge that the ramp was wet and slippery, they still had to complete the work and complete it quickly or else the concrete would harden.

90. There is also evidence from the Plaintiff that the wooden planks used to construct this ramp were simply laid thus with their ends overlapping each other but without any kind of fixation.

91. It would have been quite simple for the Plaintiff, bearing in mind that it was he who constructed the ramp, to have turned the planks over when he realised that the ramp became wet and slippery from the spilled concrete. That would not have taken very much time or effort but would have reasonably ensured that he did not have to tread over the wet and slippery surface of the ramp on which cement had been spilled after having been used for some time. There is no evidence before me that the Plaintiff took this simple step.

92. In my judgment failure to turn the planks over when he realised that the surface had become wet and slippery indicates that the Plaintiff had unreasonably and improperly exposed himself to the risk of slipping and falling. On this basis therefore I find the Plaintiff guilty of contributory negligence.

93. In assessing the extent of this contributory negligence, I take into account the fact that in the Plaintiff's own mind, he was wanting to get the job done as quickly as possible, before the concrete hardens and that he may well have been led into a false sense of security by wearing rainboots provided to him by his employers, having previously been told at the induction course on safety that rainboots would prevent slipping as can be seen from the evidence of Chan Ah Kwai.

94. In all the circumstances of this case I find the Plaintiff one third to blame for the accident.

Quantum

95. I turn now to deal with the question of quantum.

96. The medical evidence shows that when the Plaintiff was referred to specialist out-patient clinic of Queen Elizabeth Hospital in June 1993 radiological examination revealed a slight restriction of neck movement, tenderness at lower back and a slightly diminished height of the intervertebral disc between the third and fourth lumbar vertebrae. Due to the severity of the pains, the Plaintiff was admitted into hospital for four days for investigation. Upon discharge on 28th June 1993, his condition had improved a lot.

97. The Plaintiff complained of deterioration again in September 1993, but myelography and CT examination revealed essentially normal findings.

98. When last seen by the specialist clinic in February 1995, the Plaintiff was still complaining of severe back pain and stiffness and there was found to be a lot of muscle spasm at the lower back region. Sick leave was granted to the Plaintiff for a full two years and one month until 6th June 1995.

99. He was examined by Dr A. Chiang in October 1995 who found a slight disc protrusion at L5/S1 but without compression on the choral sac or nerve root. Dr Chiang also indicated that this disc protrusion is not a sizable one and did not require operative treatment at that stage.

100. Dr Chiang formed the opinion that the Plaintiff's permanent impairment amounted to 8% of the whole person and that while the Plaintiff could not return to his pre-accident job as a concreter because it involved heavy manual work, he is not precluded from moderate manual work.

101. The Plaintiff was also examined by Dr Louis Hsu in October 1998. Dr Hsu, who was instructed by the solicitors for the Defendants, came to the conclusion that the Plaintiff was trying to exaggerate his symptoms and his pain during the examination and because of that he is unable to accurately assess the extent of the pain. However he does accept that the Plaintiff has some pain in his lower back.

102. Dr Hsu also took the view that the Plaintiff suffers from structural scoliosis and which probably has been there since childhood. This was not a view taken by any other doctor save that Dr A. Chiang did mention in his report the fact that the Plaintiff did have a mild left sided lumber scoliosis.

103. I have no hesitation coming to the conclusion that the Plaintiff was exaggerating his disabilities and pain, for not only did Dr Hsu take that view but also Dr Shen from the Queen Elizabeth Hospital as well as Mrs Alice Tsang, a physiotherapist instructed by the Legal Aid Department acting for the Plaintiff, were also of the view that the Plaintiff was exaggerating his condition. However all were agreed that the Plaintiff did have some back pain -- but not as much as he himself claimed.

104. Moreover the Plaintiff's exaggeration of his own condition is clearly demonstrated by a video taken of him crossing the road in Central on 20th November 1996. The video was taken by investigators instructed by the Defendants. It showed the Plaintiff, after crossing the road, to then bend down with ease and go though a railing in order to reach the pavement. Obviously this video was shot without the Plaintiff's knowledge. What was shown on this tape contradicted the Plaintiff's complaint that he could only bend forward very slightly because of the severe back pain which he still suffers.

Pain, Suffering and Loss of Amenities

105. For general damages under this head, whilst I have found that the Plaintiff has exaggerated his own conditions and disabilities, nevertheless all the medical experts are agreed that he does have some back pain. The fact that Dr Hsu examined him in October 1998 and also accept that he has some back pain, well over five years after the accident, suggest that the back pain, however small, will in all probabilities remain with the Plaintiff for good.

106. I have been referred to a number of local authorities concerning prolapse disc injury (which is somewhat more serious than what the present Plaintiff has suffered). In all those cases the injury was categorised at the lower end of the "Serious Injury Category" as laid down in Lee Ting Lam's case.

107. The injury suffered by the Plaintiff in the present case does not, in my view, even come within that category and an award of $250,000 should be reasonable compensation in all the circumstances.

Pre-trial loss of earnings

108. At the time of accident, the Plaintiff was paid a daily wage of $500. He was granted sick leave up to early June 1995, i.e. two years and one month. During this period of sick leave, he was paid totally $144,000 by his employers as sick leave payment. This can be seen from the "Sick Leave Payment Record" agreed into evidence by the parties.

109. Taking into account the fact that the Plaintiff, on his own evidence, travelled to China about three to four times each year to visit his wife and children there, each time spending about two weeks there, I shall calculate his loss of wages based on a 24-day working month.

110. His loss for the sick leave period up to end of May 1995 should come to :

24 days x $500 x 25 months = $300,000

Less the $144,000 already paid gives $156,000

111. The pre-trial loss for the period from June 1995 to date will be partial loss in view of the evidence from all the medical experts that the Plaintiff can take on some form of employment which does not involve heavy manual work. The difficulty here is that up until trial the Plaintiff has not taken on any form of work on the excuse that his back pain prevents him from working as well as the fact that he cannot find any work despite having tried to look for work. He says he has registered with the Labour Department but could not produce the registration card in evidence.

112. I am of the view that the Plaintiff did not try as hard as he could reasonably have to secure post-accident employment. If he did in 1995 and 1996 it should not have been difficult to secure work of a moderate manual type. It may have been more difficult in the last two years. Yet his evidence is that he had not worked at all since the accident.

113. Before the accident he was engaged as a concreter, a semi-skilled type of work and was paid $500 per day. After the accident, he could have worked as a general construction site worker doing moderate manual work or other forms of work not requiring heavy lifting or exertion. The statistics provided shows that as a general construction site worker he would be getting $100 less per day and with other forms of non-heavy manual work as much as $200 less per day. With no indication as to the kind of work he might have taken after the accident, I shall use the mean of those two figures, i.e. $150 less per day as a basis for his loss. From June 1995 until date of trial covers a period of three years nine months or 45 months. The Plaintiff's loss for this period is :

$150 x 24 days x 45 months = $162,000.00

The total pre-trial loss of earnings comes to $318,000.00.

Special Damages

114. These are agreed at $13,653.00.

Loss of Future Earnings

115. Under this head of damage the parties have agreed a multiplier of 10. In the absence of any evidence as to what his loss will be for the future, I will adopt the same multiplicand which I used to calculate the pre-trial loss, namely $150 loss per day based on a 24 day working month. Future loss of earning therefore comes to :

24 days x $150 x 10 x 12 = $432,000.00

Loss of Earnings Capacity

116. The Plaintiff claims for loss of earnings capacity. However the law is clearly that it is for the Plaintiff to show a real risk of handicap in the labour market before any award is made under this head (Moeliker v. Reyrolle [1977] 1 WLR 132). In the present case the Plaintiff has not secured any form of employment since the accident in May 1993. There is nothing to indicate that he will be at a handicap in the labour market because of his injuries or disability and I refrain from making any award under this head.

Future Medical Expenses

117. The claim for $6,000.00 being future medical expenses in respect of 20 sessions of therapy at a cost of $300 per session as advocated by Dr A. Chiang has not been challenged but is agreed by the Defendants and will be awarded accordingly.

Interests

118. Interests will be awarded upon the general damages under pain, suffering and loss of amenities at 2% p.a. from date of Writ until judgment and for pre-trial loss and special damages at 5.75% from date of accident until judgment.

Total Quantum

119. The total quantum therefore comes to :

PSLA	$250,000.00
Pre-trial loss of earnings	$318,000.00
Agreed special damages	$13,653.00
Future loss of earnings	$432,000.00
Future medical expenses	$6,000.00
Interests on PSLA	$15,000.00
Interests on pre-trial loss and agreed special damages	$112,831.00
Total quantum :	$1,147,484.00 ==========

Final Award

120. From this total quantum amount of $1,147,484 one-third will be deducted to take account of the Plaintiff's own contributory negligence. This will leave $764,989.30. This sum will be further reduced to take account of the amount of Employee's Compensation award of $495,196.00 which according to the Plaintiff he has already received. The final figure arrived at is $269,793.30.

121. Accordingly there will be judgment for the Plaintiff in the sum of $269,793.30.

Costs

122. I shall make the usual costs order nisi that the costs of this action be to the Plaintiff, to be taxed if not agreed and the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.