CHAN KWOK WAI v. THE SECRETARY FOR JUSTICE

HCPI 177/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 177 OF 2005

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1.  The Plaintiff is claiming damages for personal injuries sustained in fall from height at work.  The trial is on both liability and quantum.

I.   Liability

Background

2.  The Plaintiff was a painter employed by the Electrical and Mechanic Services Department (“EMSD”) at the time of the accident.

3.  On 10 February 2004, the Plaintiff and his colleagues were assigned to paint a transmission tower situated on Kau Yi Chau  (交椅洲), a remote island of Hong Kong accessible only by helicopter.  The strong monsoon signal was issued at the time.

4.  The tower was a lattice structure consisting of 4 vertical columns interconnected by diagonal struts.  There were 6 levels of platform each about 15 ft. (5 m) high, making total height of about 90 ft. (30 m).  Guardrails surrounded each level of platform to prevent from fall.

5.  The Plaintiff was supplied with his own personal protective equipment. They included an upper chest harness, a lower pelvic harness, an independent lifeline, a 31 in. lanyard (“long lanyard”), a 9 in. lanyard (“short lanyard”), a figure-of-eight ring, and a number of carabineer hooks.

6.  The personal protective equipment provide 2 fall prevention systems.  The first was the movable anchorage on the independent lifeline.

7.  The independent lifeline was attached near the top of level 6, and the ring was looped to the lifeline to serve as an anchorage.  The chest harness would be attached to one end of the short lanyard, and the other end would be attached to the ring on the lifeline by a carabineer. The worker could abseil down the lifeline by loosening the knot in the ring.

8.  The second system was a fixed anchorage on the tower structure.  The pelvis harness would be attached to one end of the long lanyard, the other end of which would be attached to the tower structure either directly by a carabineer, or by looping the lanyard around the tower structure and attaching it back to the pelvis harness.  When the worker descended the tower on the outside, he would detach the fixed anchorage on the tower structure, re-attaching it upon reaching the next level down.

9.  At about 10 a.m. in the morning of the accident, the Plaintiff began work by climbing up to level 6 via the internal ladder, and tied the independent lifeline to a diagonal strut at level 6.  The ring was looped to the lifeline at level 6.  He then attached his chest harness to the ring with the short lanyard, and he climbed out to paint the outside of the tower. 

10.  The Plaintiff had a bucket of paint attached to his waist.  Upon reaching the top of level 5, he ran out of paint.  The Plaintiff came down onto level 5 platform and detached himself from the lifeline.  He climbed down the internal ladder to ground level to refill the paint.  He then climbed back up to level 5.

11.  The figure-of-eight ring was left high up on the independent lifeline outside level 5 and it could not be reached by the Plaintiff when standing on the tower platform.

Plaintiff’s case

12.  As to what happen when the Plaintiff proceeded to attach himself onto the ring, he gave evidence at some variance with his previous statements and declarations.   The version he adopted is as follows.

13.  The Plaintiff said he attached himself onto the tower structure at level 5 by looping the long lanyard around the upper rung of the guardrails and hooking the carabineer to his pelvis harness.  He then stepped up and straddled on the lower rung of the guardrails in an attempt to reach for the ring on the lifeline.  However, the looped lanyard was restricting his movement and he was unable to attach himself to the ring.  Therefore, he detached the long lanyard from the upper railing whilst still straddling on the lower railing, and tried to attach himself to the ring.  During this manoeuvre, he the wind became gusty, and he lost balance and fell approximately 20 m to the ground.

Issues

14.  The issues in the case are:

(1) Position of the figure-of-eight ring at the time of the accident;

(2) Whether it was necessary to detach the long lanyard from the tower structure;

(3) Whether the personal protection equipment was sufficient, and whether working platform or safety net should be provided;

(4) Whether there was failure to provide safe system of work (especially in the light of the monsoon signal);

(5) Contributory negligence.

Position of the figure-of-eight ring

15.  The Plaintiff said the figure-of eight ring was at level 5 at the time of the accident.

16.  The Defendant suggested that the ring was at level 6 at the time of the accident.  The suggestion was based on a photograph taken shortly after the accident.

17.  Upon being cross-examined, the Plaintiff said that if the ring were at level 6, he could have gone up to level 6 and pulled it up for attachment. 

18.  I prefer the Plaintiff’s version on this point.  Not only was the Defendant's suggestion unsupported by evidence of non-interference with the ring after the accident, it would have made the Plaintiff’s manoeuvre somewhat like the animated “spiderman”.   It is too far-fetched.

Necessity to detach the fixed anchorage

19.  The Plaintiff conceded that his previous explanation of detaching the long lanyard because of fear of tripping over it was mistaken.  He said he was in a confused state after a coma when giving the statement.

20.  The Plaintiff was asked why he did not go up to level 6 and pull up the ring and attach the short lanyard to it and climb out.  He said he had just painted the platform of level 6, and it would be wet with paint and was dangerous to tread on it.

21.  However, when cross-examined earlier on whether the ring was at level 5 6, the Plaintiff said that if the ring were level 6, he could have gone to level 6 and pulled it up.  There was no suggestion of wet paint.

22.  In any event, the Plaintiff painted the inside of level 6 first, and then climbed out to paint the outside.  Hence, the paint on the platform would have dried to some extent and not be too slippery.

23.  Even if the paint were not thoroughly dry, the risk and consequence of falling on the platform would be substantially lower than that of falling off the tower without an anchorage.

24.  The Plaintiff mentioned the possibility of smearing the paint when climbing out at level 6.  However, that was a consideration of convenience rather than safety.

25.  The Plaintiff said the long lanyard was restricting his movement.  However, he agreed he could double its length by attaching the lanyard onto the handrail rather than looping it around and attaching to his pelvis harness.  He did not do so because he wanted the carbineer to be closer to him.  Again, that was a matter of convenience rather than safety.

26.  The Plaintiff agreed that there was no hurry for him to finish the job.  He agreed that with hindsight, there was no need to stand on handrail and detach the lanyard, but he just never thought of it at the time.

27.  In the event, I rejected the proposition that the Plaintiff had no choice but to climb out of the tower any anchorage.

Safe system of work, equipment and supervision

28.  Earlier allegations in pleadings and/or statements that there was no provision of continuous anchorage and/or suitable abseiling and/or fall arresting device are no longer relevant as they were based on different factual scenarios at variance with the evidence.

29.  The Plaintiff said the wind suddenly became gusty and caused him to fall.

30.  The Plaintiff admitted that he was familiar with the personal protection equipment.  He was provided with the EMSD’s Occupational Health and Safety Instructions and knew at least one of the lanyards must be attached before working at height.   He knew he should not be detached from tower structure unless he was attached to the independent lifeline.

31.  Mr. Leung, for the Defendant, submitted that use of either one of the safety systems (of fixed anchorage or independent lifeline) would have been sufficient to prevent the fall of the Plaintiff.

32.  Mr. Yau, for the Plaintiff, nevertheless submitted that the mere provision of personal safety equipment was insufficient.   There should be other measures to ensure safety.

33.  He referred to Rainfield Design & Associates Ltd v Siu Chi Moon [2000] 2 HKLRD 226, 231C where Ching PJ said that it is often more important to give experienced workman instructions because their familiarity breeds contempt.

34.  Mr. Yau submitted the following particulars of negligence:

(1) Failure to provide a safe system of work;

(2) Failure to take reasonable precautions for the Plaintiff;

(3) Exposing the Plaintiff to known or foreseeable risks;

(4) Failure to undertake planning in relation to the tower in question;

(5) Failure to take into account the factor of strong wind;

(6) Failure to provide safe ingress and egress to the tower;

(7) Failure to provide safety net;

(8) Failure to provide supervision;

(9) Failure to require the Plaintiff to use personal safety equipment;

(10)   Failure to provide assistance to the Plaintiff.

35.  Mr. Yau referred to the Labour Department’s Guidance Notes on Classification and Use of Safety Belts and Anchorage Systems which stated that the use of personal protection system should be considered as last resort and should only be adopted after careful planning. 

36.  He also referred to the Accident Report of EMSD recommending maintenance works at height for tower to be temporarily suspended pending risk assessment, and to the Supplemental Report that subject to technical feasibility, permanent working platform or bamboo scaffold should be erected.

37.  Mr. Yau submitted that no consideration was given to the erection of working platform or safety net before the work began, hence failure to discharge the duty. 

38.  He further submitted that EMSD should have called off work because of the monsoon.  He was asked to consider submitting further evidence on the monsoon signal by comparison with the velocities of typhoon signals and the usual stop work warning, but decided not to do so after lengthy consideration.

39.  Mr. Lam pointed out that the Accident Report concluded the suspected cause of accident was the failure on the part of the Plaintiff to attach to the figure-of eight ring, and no unsafe environment was detected.

40.   Mr. Tse Chi-ho, EMSD Safety Officer (DW1), said there was the very need for the Plaintiff to climb out of the tower platform to paint the outside, and he disagreed with the recommendation in the Accident Report of erection of permanent working platform on the tower. 

41.  Mr. Lam also submitted that the suggestion to erect safety net was subject to the proviso of reasonable feasibility, and there was no evidence at all to show what was reasonably practical in terms of erection of a safety net on the tower. 

42.  What is reasonable required of the employer in terms of duty of care must be looked at in the context of the job requirement, the work environment, and the knowledge and skill of the employee.

43.  The Plaintiff was a painter of 28 years experience.  He had painted similar towers before although not the one in question.  What can be said as peculiar to the tower in question is perhaps tits exposure to strong wind.  The video taken on location after the accident showed strong wind, but not such that one would fall from the platform.

44.  The Plaintiff is 5 ft. 2 in. tall   The figure-of-eight ring was above him while standing on the platform, and still above him when straddling on the lower guardrail.  He had to lift himself up to attach the short lanyard at the chest harness to the ring.  Leaning out to reach for the ring out when straddling on the guardrail was inherently dangerous, with or without a monsoon.

45.  Mr Lam submitted that notwithstanding the wind condition, there would not have been a fall had the personal protection equipment been engaged.  I agree.  The Plaintiff could have gone up to level 6 to pull up the ring but he did not do so due to consideration of convenience.

46.  The risk of straddling on the guardrail and leaning out is all too obvious.  The Plaintiff knew he should be safely anchored.  I query whether anything short of a buddy system shadowing the Plaintiff could have spared him from a moment’s aberration (or impromptu bravado as Mr. Lam called it).  I do not think that such assistance or supervision is reasonably expected of the Defendant in the circumstances.

47.  I find that the personal protection equipment actually provided to the Plaintiff was reasonably sufficient.  I do not find any liability on the part of the Defendant.

Contributory negligence

48.  Mr. Yau submitted contributory negligence of 15 to 20%, and Mr. Lam submitted the same for residual liability of the Defendant if any.

49.  For reasons stated above, it is not necessary to deal with the matter.

II.    Quantum

50.  Notwithstanding my finding on liability, I shall nevertheless proceed to assess quantum.

51.  The Plaintiff was born on 15 February 1952.  He was almost 52 at the time of accident, and 56 at the time of trial.

52.  The Plaintiff suffered severe injuries as a result of the accident, and the parties agreed that he can no longer return to gainful employment.

53.  He was sent to PYN Eastern Hospital, with fractures at L-1 vertebra (and compression), pelvis, right ankle, and both calcaneus (heels).  He had serious internal bleeding from the pelvis with haematuria (blood in urine), and hypovolaemic shock (from loss of blood plasma).

54.  The Plaintiff has undergone numerous operations for the next 7 months.  As to orthopaedic surgeries: (1) open reduction of pubic bone, (2) spinal fusion, (3) open reduction and fixation of right heel,  (4) and (5) debridement and removal of ankle/pubic implants due to infections, (6) skin graft for right heel.  He received physio and occupational therapy.

55.  The Plaintiff developed renal failure and gastrointestinal bleeding and was put under intensive care with 2 endoscopic operations.  He also had bladder rupture and urinary tract infection and received catheterization (tube insertion) and conservative treatment.

56.  He was discharged home in September 2004.

57.  There is no sensation over the right foot dorsum and impaired sensation in the right foot sole.  Sensory function of left lower limb is intact.  There was occasional cramps and spasms on both limbs while walking.

58.  The Plaintiff suffers from double incontinence, nocturnal enuresis (involuntary urination) and unpredictable faecal soiling during the day.  He has to wear diapers.

59.  He also suffers from erectile dysfunction, loss of genital sensation and sexual impotence.  His wife divorced him after a 10 year marriage.

60.  The Plaintiff can walk for 10 to 20 minutes with aid (either a 4-prong walking stick or quadripod walking frame).  He needs a wheelchair to travel longer distance.

61.  It is agreed that the Plaintiff is completely disabled as to future employment.  He cannot do cooking or laundry, cannot bend down to tie shoe laces and needs a special shoe spoon for footwear.

62.  The Plaintiff is currently living in a 840 sq. ft. flat with 5 other relatives.  The flat was bought by his mother who had since passed away.  The Plaintiff claims a beneficial share of the flat.  His wife moved out upon divorce.  The Plaintiff now shares a room with his brother, and he sleeps on the lower bunk while his brother on top.  His sister and her husband occupy another room, his niece occupies the third, and the nephew sleeps in the sitting room.

63.  The Plaintiff goes to the park near the flat with his brother in the morning, then to have breakfast in a local café.  His brother has quitted job to look after him.

64.  The needs claim includes a full-time domestic helper (who will need his/her own living quarters), aids and equipment (which will take up more space), and alternative accommodation.

Pain and suffering and loss of amenities (PSLA)

65.  The Plaintiff claims $1,050,000 under the gross disability category.  The Defendant agrees to $700,000.

66.  Mr. Yau cited the cases of Lam Yin Fong v Tsang Kam Cheong [2003] 3 HKLRD 501 (PSLA of $900,000: fractured pelvis and right femur and head wound, at least 5 operations for open reduction and internal fixation, urology complications and catheterization, right foot drop (with leg splint) and limping, extensive scars and psychological problem); Lau Chung Nam v Au Wai Mun [2004] 1 HKLRD 57 (PSLA of $800,000: sever head injury, fractured cervical spine and left leg (tibia and fibula), multiple operations, and recovery in quite independent daily life, but with epilepsy); Lee Kim Fung v Lok Lun Keung & Anor HCPI 1063 of 2000 (PSLA of $792,000: fractured left ribs, left upper arm (humerus) and right hip (actebulum) with hip replacement and walking with stick, urethral stricture and sexual dysfunction).

67.  The Plaintiff’s injuries, operations and resulting conditions are more substantial than Lam Yin Fong.  There is also a possibility of future operation.  I shall award $1,050,000 for PSLA as claimed.

Pre-trial loss of earnings

68.  It is agreed at $468,000.

Post-trial loss of earnings

69.  The multiplicand of $17,014 (without promotion) and multiplier of 3 is agreed.  The issue is promotional prospect.  I shall assess whether the chance of promotion is high, small or nil.

70.  The Plaintiff finished Form 1 and joined the Public Works Department as Labourer in 1971.  He claimed to have studied Form 2 in evening school, but there was no record of it.  He was an Artisan (Mechanical) with EMSD at the time of the accident. 

71.  In theory, the Plaintiff was eligible to apply for the higher grades of Senior Artisan, and also Works Supervisor II (before 2008 when the entry qualification was raised to Form 3).  In 2008, the promotional ratio for Senior Artisan was 23/165.

72.  The Plaintiff once applied for promotion in 1990’s and failed, and had never applied again.  He once acted as Works Supervisor II for 4 months.

73.  The Plaintiff’s overall performance appraisals were generally “good” (3^rd out of 6 grades), and “likely to be fit for promotion in time” (4^th out of 5 grades).

74.  As the Plaintiff is a civil servant, promotion is regulated by rules and procedures.  Although only the 5^th grade was categorized as unfit for grater responsibilities, his chance of promotion is (and pardon for sparing any euphemistic delicacy) practically nil.  There is no evidence that his potential contestants are worse so that he will be promoted in any event.  Hence, I shall assess the loss of chance of promotion as nil.

75.  On the basis of no promotion, post-trial loss (pension deducted) is agreed at $465,610, and pension loss is agreed at $167,825.

Aids and equipment

76.  The agreed items (including consumables) amount to $198,000.

77.  The disputed items are:

(1) Manual wheelchair with reclining feature (x 4)

(2) Powered wheelchair (x 1)

(3) Anti-decutibus (pressure ulcers) cushion for wheelchair (x 5)

(4) Hospital bed with elevating sections (x 2) and mattress (x 5)

(5) Anti-decubitus mattress (x 5)

(6) Adjustable over-bed table (x 3)

(7) Geriatric chair (x 3)

(8) Standing frame (x 2)

(9) Get up hoist (x 1)

(10)   Commode/Shower chair (x 1)

(11)   Computer (x 2)

78.  It is not disputed that the Plaintiff needs wheelchair.  The dispute centred around: (1) items catering for patients with substantial loss of bodily movements; (2) anti-decubitus features in some items.

79.  Ms Shelly Chow, the Plaintiff’s occupational therapy expert, accepted that the Plaintiff can stand and walk with walking aid, but queried whether the standing tolerance might deteriorate over time.  However, she accepted that there is no objective evidence for such postulation.

80.  Ms Chow noted loss of sensation from umbilicus to toes:

(1) reduced sensation over pelvic/perineum area;

(2) no sensation from right knee to toes;

(3) satisfactory sensation on left leg, but some cramping/spasm in left great toe on walking.

81.  She suggested that reduced sensation may lead to prolonged sedentary or recumbent postures without notice, which may lead to bed  sores or pressure ulcers, hence, the anti-incubitus items.

82.  Dr. Cecilia Lee, the Defendant’s occupational therapy expert, noted that the Plaintiff did not lose bodily movement altogether and can stand and walk, and there was no loss of sensation in the sacral region (buttocks).  She said only total or substantial sensory loss will lead to pressure sores.  But the Plaintiff is neither bed or wheelchair bound.  He does not sit or sleep for prolonged period, and there is no indication of pressure ulcers. 

83.  I find Dr. Lee’s opinion better reasoned and well supported by the facts.  The Plaintiff sustained pelvic and spinal factures resulting in partial sensory and motor loss.  It is traumatic in nature and hence non-progressive.  The condition has plateaued after slight improvement.

84.  In the premises, I shall deal with the items as follows:

(1) Wheelchairs

It is accepted that the Plaintiff will need 4 wheelchairs during the rest of his life.  But the reclining feature designed for loss of bodily movement is not necessary.  As the Plaintiff approaches old age, his strength may decrease, and may need a powered wheelchair.  Hence, I shall allow 3 manual wheelchairs at the average unit cost of $3,500 making $10,500, and a powered wheelchair at $76,800.  The total is $87,300.

(2) Standing frame and get up hoist

There is no loss of get up or standing function.  The items are disallowed.

(3) Hospital bed, anti-decubitus mattress and over-bed table

The Plaintiff is not bed-ridden.  The items are not necessary.

(4) Anti-decubitus cushions

The Plaintiff is not wheelchair bound and there is no sensory loss in the sacral region.  The items are not necessary.

(5) Geriatric chair

The Plaintiff is not chair bound.  He has no problem with sitting on sofa and dining chair.  The item is disallowed.

(6) Commode/shower chair

The item is allowable in principle, but without the reclining function for patient with loss of bodily movement.  A basic version is allowed.  As the cheaper version is less well built, I shall allow 3 units in total.  The amount is $6,000.

(7) Computer

The Plaintiff is not computer literate.  But he plays games on his nephew’s computer.  Considering the restrictions on his activities, I shall allow $6,000 as claimed.

Alternative accommodation

85.  It was mooted at some stage that I should deal with domestic help first before alternative accommodation as a lived-in helper may have bearing on accommodation need.  For reasons that will become apparent, I shall deal with accommodation first.

86.  The parties agreed the costs of the alternative accommodation should be calculated as the annualized costs of providing the required space (at $3,000 per sq. ft.) at the internal rate of return of 4.5% and life multiplier of 15.

87.  The Plaintiff claims a separate 600 sq. ft. flat for him and his brother.  Ms Chow premised it on the need for the equipment, helper’s living quarters, and safety space for the Plaintiff.  The annualized costs amount to $1,215,000.  Mr. Yau also added the alteration costs of $275,000.

88.  The Defendant’s primary position is that the present accommodation is sufficient.  Dr. Lee noted the present building has good wheelchair access.  Of course, much of the equipment are disallowed.

89.  Alternatively, Mr. Lam suggested an addition of 150 sq. ft. to the current flat on the basis of the bedroom and toilet space for the Plaintiff as stated in Ms Chow’s report.  The family could trade up a bigger flat, and the Plaintiff could continue to live with them, which has so far worked out well with no contra-indication of discord.

90.  I find Mr. Lam’s alternative approach accord reasonably necessary space for the Plaintiff.  I also take into account the Plaintiff’s claim of a beneficial share in the present flat and it is not reasonable to accord him entirely separate accommodation on top of the present flat.

91.  The annualized costs for alternative accommodation of 150 sq. ft. amount to $303,750.  The alteration costs claim rateably reduced will be $68,750.  Making allowing for some element of fixed costs, I shall allow the reasonable alteration costs of $100,000.

92.  As the family could get accommodation of about 1,000 sq. ft., common experience will tell that there should not no difficulty in finding a flat with living quarters for the domestic helper.

Domestic helper

93.  The Plaintiff has been taken care of by his sister and brother.  His brother quitted job to do that, and also attends to his toiletry needs.  The sister cooks the meals and work the chores after work. 

94.  It is agreed that the Plaintiff should be provided with domestic help.  The difference lies in whether lived-in or part-time help.

95.  The Plaintiff claims the costs of foreign domestic helper at $1,114,700 at the life multiplier of 15.

96.  The Defendant is willing to offer a part-time helper for 6 hours per day, which works out to be $1,375,740.

97.  A lived-in domestic helper does not mean he/she is on duty round the clock.  In any event, it is not suggested that the Plaintiff needs such care and attention.  He may need help to go to the toilet at night, but the suggestion is that his brother will continue to live with him in any case.  What is needed is someone to help him to go out and cook lunch for him

98.  Be that as it may, given what I have said about helper’s quarters in the alternative accommodation, the issue is somewhat academic. I shall allow $1,375,740 as suggested by the Defendant. 

Special damages

99.  The sum of $37,302 is agreed.

Service rendered by the sister

100.  The sum of $283,970 is agreed.

Future medical expenses

101.  The sum of $671,220 is agreed save as to the costs of future operation.  This sum is allowed without such costs.

102.  The Plaintiff is a retired civil servant, and is entitled to treatment in public hospitals.  Mr. Yau agreed that future operation is more a consideration for PSLA than expenses.

Summary

(1)	PSLA	$1,050,000
(2)	Pre-trial loss of earnings	$   468,000
(3)	Post-trial loss of earnings	$   465,610
(4)	Loss of  pension	$   167,825
(5)	Aids and equipment	$    291,300
(6)	Alternative accommodation	$   403,750
(7)	Domestic helper	$1,375,740
(8)	Special damages	$ 37,302
(9)	Service rendered by the sister	$   283,970
(10)	Future medical expenses	$   671,220
		$5,214,717

and due credit should be given for Employees’ Compensation received.

Interest

103.  Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for non-pecuniary loss from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

104.  In view on the judgment against the Plaintiff on liability, I make an order nisi that the Plaintiff do pay the costs of the action to the Defendant.

105.  Lastly, I thank Mr. Yau and Mr. Lam for their helpful submissions, and the extensive agreement which substantially narrowed down the issues.