LAI MAN v. E MAN CONSTRUCTION COMPANY LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The plaintiff claims damages for personal injury sustained on 22nd March 1980 while he was employed by the defendant as a general worker at a construction site.

Liability

2. It was not in dispute that the injury occurred while the plaintiff was shovelling concrete from a hopper located in a tower consisting of a metal framework erected adjacent to a building which was in the course of construction. A fellow worker, also employed by the defendant, operated the mechanism whereby the hopper ascended the tower to whichever floor of the building that concrete was required. The hopper operator was situated some 20 feet away from the plaintiff and had an unobstructed field of vision to the hopper and the plaintiff working at it.

3. The plaintiff was injured when without warning the hopper suddenly ascended and crushed his left hand against a metal bracing in the tower framework. As a consequence of the injury his hand was amputated on the same day.

4. Evidence disclosed that concrete was conveyed to the site in concrete mixer trucks operated by a sub-contractor and was discharged from each truck in turn into the hopper. The only real conflict in the evidence as to the events leading up to the accident concerned the nature of the instructions that had been given by the site foreman to the plaintiff as to how he should extract concrete in order to make test bricks required for the purpose of determining whether the concrete was of the correct strength.

5. The plaintiff was positive that the site foreman had instructed him to extract the concrete from the hopper and that on every occasion on which he had previously been required to obtain concrete to make test bricks, not only had he extracted it from the hopper but the metal safety grille which had been attached to all four sides of the base of the tower had been removed. The plaintiff claimed that he had not actually seen the grille being removed but that as it would otherwise have been impossible for him to gain access to the concrete in the hopper, he concluded that it had been detached in order to enable him to carry out his work. He said that the practice was that after he had shovelled the required samples of concrete from the hopper into buckets which he had placed at its side, the hopper operator would then activate the mechanism to elevate the hopper to the appropriate floor of the uncompleted building.

6. The site foreman testified that he would normally assign the task of making test bricks to any general worker at the site who happened to be available, and that as he had asked the plaintiff whether he knew how to make test bricks and had been told by him that he did, he assumed that he would know that he should obtain the concrete for that purpose from the shute of the concrete mixer truck while it was parked next to the tower and discharging its load of concrete into the hopper.

7. The site foreman was unable to recall the number of occasions on which he had earlier instructed the plaintiff to perform this task but claimed that on the first of such occasions he had pointed in the direction of the truck at the time of issuing his instruction. In cross-examination he agreed that it had been the practice that prior to the arrival of any of the trucks at the site he would direct the plaintiff to obtain samples from concrete discharged from a particular truck when it arrived, and that the plaintiff would then await the arrival of that truck and perform his task in the absence of the foreman. It seems that the object was to conduct random tests on incoming concrete. The foreman agreed that although the hopper operator was attached to the site engineering section which had its own foreman, he, the site foreman, was present throughout the working day and exercised an overall supervisory control over operations at the site.

8. He said that when concrete was being discharged from a concrete mixer truck into the hopper the metal grille "should normally" surround the base of the tower, but that when he had tended to the plaintiff after the accident he observed that it was not in situ. Although he was unable to say whether it had been there immediately prior to the accident, he maintained that one or two days before its occurrence he had noticed that it was properly attached to the tower base.

9. The site foreman also testified that it had been installed as a safety measure ''required by the Labour Department" to prevent injury to anyone who might carelessly place himself in a position of danger at the tower.

10. The defendant did not allege that the safety grille had been removed by the plaintiffs. On the contrary, the site foreman readily conceded that the plaintiff had been an obedient and responsible employee. Moreover, it seemed from the evidence that its removal was something of a mystery to the site foreman.

11. I found that on some aspects of the case the site foreman's evidence was vague and less than satisfactory. It seems strange that, being aware of what he claimed to be the danger presented by an unguarded hopper, he had not seen or come to learn of the plaintiff shovelling concrete from the hopper on any of the occasions on which he had performed the task. I consider that if the removal of the grille had been a radical departure from the accepted practice, it is unlikely that the site foreman would have remained ignorant of that fact, particularly as his job required him to exercise overall supervision of work at the site.

12. The plaintiff, on the other hand, impressed me as being a truthful and reliable witness. At no time was he given to exaggeration concerning matters on which, had he been a witness inclined to distort the truth to his own advantage, I would have expected him to tend to embroider his testimony. Indeed, he claimed, much to my astonishment, that he had suffered no pain either at the time of the accident or after the operation in which his crushed hand was amputated.

13. Where there was a conflict in the evidence of the two men I had no hesitation in preferring that of the plaintiff. I am satisfied that the site foreman instructed him to extract the concrete from the hopper and that the grille had been removed for that purpose by someone other than the plaintiff. Counsel for the defendant frankly conceded that if I were to accept the plaintiff's evidence on this aspect of the case the defendant must totally fail on the question of liability even though the plaintiff might have realised that there was an element of danger involved in the extraction of the concrete from the hopper.

Quantum

14. As a consequence of the accident the plaintiff had been hospitalised until the 3rd April 1980 On the 22nd August 1980 the defendant employed him as a watchman at a lesser salary than that which he had received as a general worker. He continued to be employed in this capacity until December 1982 when the defendant instructed him to take up duties as a watchman at another site in Kowloon. According to the plaintiff he had been given until the day following the instruction to move to that site and was told that if he failed to do so he would be dismissed in accordance with "labour regulations". Since, however, he had been unable at such short notice to transport his belongings to the new site unaided, he we s dismissed on 20th December 1982 and given severance pay.

15. The only evidence in conflict with this testimony was that given by another foreman employed by the defendant who testified that the plaintiff had been transferred to the new site by a clerk and that it "seemed" that the plaintiff had indicated that he would not work at that site because he had found a new job. This vague testimony did not cause me to doubt the truthfulness of the plaintiff's account of the matters. Since his dismissal by the defendant the plaintiff had attempted without success to find alternative employment. It seems that because of his physical handicap and lack of any skill which would be of advantage to him in the labour market his only realistic prospect of employment has been as a watchman.

16. After a number of unsuccessful attempts to find work he sought the assistance of the Labour Department. In 1983 the department found a job for the plaintiff as a watchman at a site in a rural area far from any urban centre and to which no electricity or water was supplied. The plaintiff declined to take up the position because of the lack of water and electricity for cooking and washing purposes and requested the department to find him alternative employment. Ultimately he was referred to another prospective employer but his application was rejected. Notwithstanding attempts to find other employment the plaintiff remains out of work. He attributed his failure to obtain work to the reluctance of employers to engage a person with his disability.

17. Apart from his physical handicap the plaintiff claims that he is in good health. He appears to be quite robust and there is no evidence to the contrary in the medical reports or from any other sources.

18. I accept the plaintiff's evidence and consider that it was by no means unreasonable for him to reject the offer of employment at the remote location without water or electricity. I do not think that it was incumbent on him to accept any job however bad the working conditions might have been. He was entitled to hold on and wait until a position with reasonable living conditions presented itself. The fact that the labour Department kept him on its books and later referred him to another employer suggests that his attitude was not considered to be unreasonable.''

19. The parties have agreed that the plaintiff's loss of wages from the date of the accident to 19th December 1982 amount to $10,893. What I have to determine is how long the plaintiff, had he not suffered the loss of his hand, could reasonably have expected to have continued in his employment as a general labourer at a construction site and thereafter as a watchman.

20. The site foreman testified that it was his duty to employ labour whenever the necessity arose and that general labourers are not freely available. He agreed that at the beginning of 1983 such workers were earning $2,100 a month and that nowadays the figure would be $2,400. As far as he was concerned this type of labourer was employable in active work until the age of 65 and that thereafter he could obtain a position as a watchman until the age of 72 or 73. According to him, a watchman would earn between $1,200 and $1,800 a month depending on the employer.

21. The chief site superintendent of the defendant company testified that general labourers would only be employed as such by the defendant until they reached the age of 60 but that they would be employed as watchmen until the age of 65. He agreed however that the site foreman has a free hand in employing workers, that his recommendations would invariably be accepted by the company and that if he specially recommended a healthy worker over 60 years of age the company would accept that worker.

22. There was no evidence that this policy of retiring workers at the age of 60 had been adopted by other construction companies. Indeed, the witness agreed that it was only when the site foreman recommended to the defendant that a particular worker be retired at the age of 60 that the company would require him to retire.

23. I am satisfied on the evidence before me that the plaintiff could. reasonably have expected to have been employed as a general worker until the age of 65 and as a watchman until the age of 72. In the light of past experience there does not seem to be any realistic chance of the plaintiff finding employment in the future. However I must take into account the vicissitudes of life and the lump sum payment.

24. I have come to the conclusion that the multiplier in respect of the assessment of loss of future earnings as a site worker should be two. The multiplicand should be (12 x 2400) = 28,800. The total loss under this sub-head is therefore $57,600.

25. As to the loss of future earnings as a watchman the multiplier should be three and the multiplicand (12 x 1500) = 18,000. Thus the total under this sub-head is $54,000.

26. On the basis that the monthly earnings of a general worker have increased from $2,100 a month in early 1983 to $2,400 a month at present, there must be added to the agreed figure of $10,893 in respect of loss of past earnings the sum of $63,000 which is calculated at the rate of $2,250 a month to reflect the gradual increase in wages over the period of 28 months from 20th December 1982 to the date of judgment. This is based on the evidence of the site foreman both as to the wages paid to general workers at construction sites over that period of time and the availability to general workers of work at such sites.

27. Physiotherapy expenses in the sum of $500 and a sum of $95,000 in respect of pain and suffering and loss of amenities have been agreed.

28. Since I have found that the plaintiff obeyed his site foreman's instructions to extract cement from the hopper and that there is no evidence that in doing so he performed his task negligently, it follows that the plaintiff must wholly succeed on the subject of liability.

29. I therefore give judgment for the plaintiff in the sum of $248,623 being the total of the general and special damages reduced by $36,870 workmen's compensation already paid by the defendant to the plaintiff.

30. I award interest on the special damages at the rate of 7% p.a. from the date of the accident until the date of judgment and interest at the rate of 2% p.a. from the date of service of the writ to the date of judgment on the award for general damages in respect of pain and suffering and loss of amenities less the sum of $36,870. There will be no interest on the sum awarded for loss of future earnings.

31. The plaintiff will have his costs which will be taxed in accordance with Legal Aid Regulations.