CHAN SAI CHIU v. CHING YAN CHEUK t/a EDEN CONNECTIONS DESIGN & ENGINEERING CO

DCPI 2336/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2336 OF 2011

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JUDGMENT

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CASE SUMMARY

1.  This is a personal injury claim.  The plaintiff’s case was that at the material times he was employed by the defendant as a general labourer and was assigned to work at 2^nd Floor, No 18 Fenwick Street (the “Site”). His left index finger was injured by an electric saw when he was working at the Site on 10 April 2009 (the “Accident”).

2.  The plaintiff commenced a claim under the Employees’ Compensation Ordinance (Cap 282) against the defendant in DCEC 15 of 2010 (the “EC Action”).  Judgment in the EC Action was entered against the defendant for the plaintiff’s claim on 25 October 2011.

3.  The plaintiff commenced this action on 24 November 2011 to claim against the defendant for negligence and/or breach of common duty of care and/or breach of employment contract and/or breach of the Occupational Safety and Health Ordinance (Cap 509) (the “OSHO”).

4.  The plaintiff filed his statement of claim and statement of damages herein both on 24 November 2011.  He filed his revised statement of damages on 26 September 2012.  The defendant filed his defence on 24 May 2012 but had not filed any answer to the plaintiff’s statement of damages or revised statement of damages.

5.  The court had on 25 April 2012 granted leave for the parties to adduce expert evidence from orthopaedics specialist.  Leave was subsequently granted for the plaintiff to rely on the medical report dated 23 November 2012 prepared by Dr Lam Yan Kit (“Dr Lam”) without calling Dr Lam to testify at the trial.

6.  The court had also on 25 April 2012 directed the defendant to inform the court and the plaintiff on or before 23 May 2012 as to the defendant’s stance on adducing medical expert evidence.  The order specifically provided that if the defendant did not notify the court and the plaintiff within the prescribed time of his stance on adducing medical expert evidence, he would be deemed to have given up the right to adduce medical expert evidence.  Until the trial, the court had not received any notice from the defendant informing the court that he would adduce expert evidence.

7.  The defendant did not attend further hearings after the hearing of 25 April 2012.  The court had on 14 August 2012 made various unless orders against the defendant in respect of filing and serving of list of documents, witness statement and answer to revised statement of damages.  The court had subsequently extended the time for the defendant to file and serve the answer due to the plaintiff’s late filing of his revised statement of damages and the bankruptcy of the defendant.  However, until the trial the defendant had not filed any of the aforesaid documents with the court. 

8.  The defendant was adjudged bankrupt on 18 September 2012.  Leave was granted by the High Court on 31 December 2012 for the plaintiff to proceed with this action.

9.  In a letter dated 17 December 2012 from the official receiver to the plaintiff’s solicitors, the official receiver stated that by virtue of section 58 of the Bankruptcy Ordinance (Cap 6), the property of the defendant including his cause of action had been vested in the official receiver on the making of the bankruptcy order.  The defendant should no longer have any locus standi to proceed with the proceedings.  The official receiver further stated that he had decided not to adopt the case and for saving costs would not attend any hearings in respect of this action. 

10.  On 8 February 2013, the court fixed the trial of this action for 30 April 2013.  The plaintiff filed his application to set a case down for trial (the “Application”) on 11 April 2013.

11.  The Application was served to the defendant on 12 April 2013. Affirmation of service was filed on 29 April 2013.

12.  The defendant did not take any further step in these proceedings after filing of his defence on 23 May 2012.  The defendant also did not attend the trial.

13.  The official receiver had previously advised that he would not attend hearings in this action.  Notice of the trial hearing date had been given to the defendant in the Application.  They are the choices of the official receiver and the defendant not to attend the trial.  In the premise, I proceeded with the trial in this case in the absence of the official receiver and the defendant.

14.  Only the plaintiff testified at the trial.

LIABILITY ISSUE

The plaintiff’s case and evidence

15.  The plaintiff had filed a witness statement dated 3 July 2012.  He adopted his said witness statement as evidence-in-chief at the trial.

16.  The plaintiff’s case was that he worked as a casual general labourer in decoration industry for many years.  His daily wages was $750.  He worked 30 days every month and earned in average not less than $22,500 per month.

17.  He was working for the defendant on the date of the Accident.  He had been working for the defendant for one to two years prior to the Accident.  The defendant would pay his wages in cash most of the times.

18.  He was assigned to do some demolishing works at the Site in early April 2009.  He was asked by the defendant to find three more workers for the works and to supervise the workers.  The defendant agreed to pay him extra $100 for each worker per day on top of his own wages.  The defendant also agreed that the plaintiff might sell the demolished materials and keep the proceeds as meal allowance for the workers.

19.  The plaintiff started working at the Site with three workers on 7 April 2009. The defendant paid wages to the three workers everyday whereas the wages of the plaintiff would be paid twice a month.

20.  In the evening of 9 April 2009, the defendant instructed the plaintiff to demolish a wooden door frame on the next day, ie 10 April 2009.  The plaintiff asked the defendant to provide him with the necessary tools.  The defendant told the plaintiff that the defendant would arrange for an electric saw at the place of work for him.

21.  On 10 April 2009, the plaintiff found a home-made electric saw (the “Saw”) at the place of work.  It was modified from a grinder and without any protective cover.  The plaintiff found it dangerous to use an electric saw without protective cover.  He called the defendant who confirmed that this was the tool for the plaintiff to do his work.

22.  The plaintiff testified at the trial that when he was using the Saw on 10 April 2009, he was trapped by the power wire of the Saw and lost his balance.  His left index finger was injured by the Saw.  The plaintiff informed the defendant of the Accident over the phone.  He was told by the defendant that the defendant did not have any employees’ compensation insurance cover. The plaintiff proposed to the defendant that either (1) the plaintiff would report the matter to the Labour Department; or (2) the defendant would paid him wages during the sick leave and he would still supervise the workers during the sick leave; or (3) the defendant would pay him a lump sum of $20,000.  The defendant said that he needed time to consider.

23.  However, when the plaintiff met the defendant at the Site on 11 April 2009, the defendant told the plaintiff that he had not employed the plaintiff and he had nothing to do with the plaintiff’s injury.  The defendant even accused the plaintiff of thief at the Site.  The defendant did make a report to the police on that day but the plaintiff was not charged.

24.  The plaintiff reported the Accident to the Labour Department on 14 April 2009.

25.  After the Accident, the plaintiff had received treatments at the Accident & Emergency Department (“A&E”) of the Ruttonjee & Tang Shiu Kin Hospitals (“TSKH”) and the Shek Kip Mei General Out Patient Clinic (the “Clinic”).  Sick leave from 10 April to 31 May 2009 was granted to the plaintiff.

The defendant’s case and evidence

26.  The defendant had filed the defence but submitted no evidence whether documentary or otherwise to substantiate the defence.  He did not attend or testify at the trial.

27.  The defendant’s case as I could understand from the defence filed was that he was appealing against the decision against him in the EC Action.  The defendant alleged that the plaintiff was not his employee and the plaintiff was injured when he was committing thief at the Site.  The defendant referred to the plaintiff’s criminal records and his last conviction on 14 May 2012 after the trial of the EC Action.

Discussion and Ruling

28.  The defendant had lodged an appeal in the EC Action in CACV 248/2011 relying on criminal records of the plaintiff discovered after the trial.  The defendant also relied on Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 to challenge the ruling on the employer-employee relation made by the learned judge in the EC Action.

29.  The said appeal was dismissed by the Court of Appeal on 8 February 2013 after the court had considered the official receiver’s letter which stated that the defendant no longer had any locus standi to proceed with the appeal and the EC Action and the official receiver had decided not to adopt the said two proceedings.  The defendant’s defence relying on his appeal against the EC Action ceased to exist. 

30.  In respect of the defence of the defendant on the alleged thief and no employer-employee relation, the defendant had raised similar defence in the EC Action.  In paras 4 to 5 of his judgment in the EC Action, the learned judge said as follows:-

“4. On the other hand, the Respondent [the defendant] maintained that he had only employed the Applicant [the plaintiff] once in November 2008 to work at a construction site at the Ocean Terminal and engaged him as a subcontractor for a project at No. 68 Hennessy Road in March 2009. Regarding the project at the Site, he said that he only asked the Applicant to introduce workers to him and he would pay the Applicant HK$100 per day of work of the workers as reward. The Applicant was never asked or authorised to work at the Site.

5. It was also the case of the Respondent that the Applicant was at the Site on the material date removing debris for sale, without his permission.  And actually, the Respondent has made a report to the police soon after the Accident alleging that the Applicant has committed theft in misappropriating the debris. However, the Respondent has withdrawn such allegation in a subsequent interview with the police.”

31.  After carefully analysed the parties’ evidence, the learned judge found the plaintiff an employee of the defendant at the time of the Accident and the plaintiff injured his finger in the course of employment.

32.  Whether there was an employer-employee relation between the defendant and the plaintiff was an issue which had been adjudicated by the court in the EC Action between the same parties.  The appeal in the EC Action has now been dismissed.  The principle of res judicata applies.  It is not opened for the defendant to re-litigate the same issue in this Action.

33.  In respect of the defendant’s alleged thief against the plaintiff, the learned judge had also dealt with similar allegation made by the defendant in the EC Action.  In para 20 to 22 of his judgment, the learned judge had the following to say:-

“20. In his witness statement filed in this action, as mentioned above, it was stated that the Respondent was informed by the police that no charge would be brought against the Applicant due to insufficient evidence. However, in his statement to the police dated 9^th May 2009, it was stated that the Respondent has chosen to resolve privately with the Applicant regarding the lost properties and follow-up by police is not necessary. In other words, it was actually the Respondent himself who told the police not to investigate further on the matter.

21. When asked about the above inconsistency on his evidence in cross-examination, the Respondent was unable to give any reasonable explanation. At one point, he put the blame on the police officer who helped writing his police statement but such allegation has never been put forward before.

22. I do not find the Respondent a credible witness and in my view, the version given by him is inherently improbable.” 

34.  It is noted that the defendant was legally represented in the EC Action.  The defendant withdrew his complaint against the plaintiff to the police on the alleged thief and sought to raise the same again in this action. No evidence was adduced in this action to substantiate the defendant’s allegation.  I reject the defendant’s unsubstantiated defence.

35.  I accept the plaintiff’s evidence and find that the plaintiff was injured by the Saw provided by the defendant when he was working for the defendant.

36.  The Saw provided by the defendant to the plaintiff to work on was without a protective cover.  This was a piece of unsafe work tool.  The defendant was negligence in providing an unsafe equipment to the plaintiff for his work and exposing the plaintiff to danger which caused injury to the plaintiff.

37.  An employer is under a duty to take reasonable care in the selection and provision of plant, tools and appliances to be used by his workers.  He owes his employees a duty of care to provide to them a safe system of work, effective supervision and a safe place of work.  This includes the provision of safe equipment (see Wong Woon Hei v Dickson Construction Co Ltd & Anor (unrep, HCPI 521/2000, Deputy High Court Judge Muttrie, 3 July 2001)).  An employer is guilty of negligence if he fails to do so.  This is also a term which will be implied in an employment contract.  I find that the defendant was in breach of such duty and such implied term of the employment contract with the plaintiff.  The defendant was also in breach of various provisions of the OSHO which require an employer to ensure the safety and health of his employees at work.  The defendant was in breach of his statutory duties.

38.  I find the defendant liable to the plaintiff’s claim.

QUANTUM

39.  In the revised statement of damages filed herein on 26 September 2012, the plaintiff claimed the following heads of damages against the defendant:

(1) general damages for pain, suffering and loss of amenities in the sum of $180,000;

(2) loss of pre-trial earnings in the sum of $32,077;

(3) loss of earning capacity in the sum of $234,000;

(4) costs of future medical expenses in the sum of $9,000; and

(5) special damages in the sum of $2,902.

The plaintiff’s medical treatments

40.  After the Accident, the plaintiff attended A&E of TSKH for medical treatment on 10 April 2009.  Examination showed that an irregular dirty wound associated with tissue and skin loss was noted over the pulp of his left index finger.  X-rays of the left index finger did not show any fracture.  He was treated conservatively and discharged with sick leave.  He attended several follow-up treatments at TSKH and sick leave was granted up to 31 May 2009.  He was considered fit to resume duty on 1 June 2009.

41.  The plaintiff attended the Clinic several times for wound dressing.

Evidence of medical expert

42.  Dr Lam is the plaintiff’s expert.  As stated above, the defendant had not submitted any expert report.

43.  Dr Lam examined the plaintiff on 15 September 2010 and prepared his report dated 23 November 2010.

44.  The plaintiff told Dr Lam that there was persistent numbness and pain over his left index finger and he was unable to resume work after the sick leave.  He eventually returned to work in November 2009 but could only work on average six days per month because of left index finger pain and numbness.

45.  Dr Lam’s diagnosis of the injury was deep laceration of left index finger pulp.  Physical examination showed atrophy of the left index finger pulp and decreased sensation over the pulp.  There was slight decrease in range of motion of the left index finger joints.  There was also mild decrease in grip strength but a significant decrease in pinch grip with left index finger.  Dr Lam was of the view that a course of occupational therapy with desensitization program should be able to decrease the pulp hypersensitivity to a tolerable level.

46.  Dr Lam estimate the whole person impairment caused by the injury to the plaintiff at 2% and loss of earning capacity at 3%.  He expected that the plaintiff was able to return to his pre-accident job with moderate degree of reduction in working efficiency expecially in doing fine works after the course of rehabilitation treatment recommended by him.

Evidence of the plaintiff

47.  The plaintiff still complained about pain, numbness, hypersensitive and stiffness at his left index finger.

48.  He said that he spent about $702 on medical expenses, $200 on travelling expenses and $200 on tonic food but he had lost the receipts for these expenses.

49.  He said that he had been in custody since early 2011.

Findings

50.  I accept Dr Lam’s diagnosis of deep laceration of left index finger pulp.

51.  I accept that the plaintiff still suffered residual pain which would be improved after the course of occupational therapy recommended by Dr Lam.

52.  Dr Lam was of the view that the plaintiff should be able to return to his pre-injury job.  He expected that the plaintiff’s working efficiency would be reduced in doing fine works.  The plaintiff worked as a general labourer.  I do not expect that he will be required to do a lot of fine works in his job.

53.  The impact of the residual symptoms on his work capacity will be minimal.

Pain, suffering and loss of amenities

54.  In the revised statement of damages, the plaintiff claimed $180,000 under this head.  Mr Lau, representing the plaintiff, in his submissions conceded to claim only $100,000.

55.  Mr Lau cited the following cases to support his contention:-

(1) In Wong Yun San v Cheung Yue Yiu trading as Radio Engineering Co (DCPI 1909/2007, unrep, 21 July 2008, Deputy District Judge Richard Khaw), the claimant’s left index and middle fingers were injured in the accident by a circular saw.  He was found to have sustained a crush injury to his left middle and index fingers.  There was pulp loss in his left index finger and a deep laceration in the middle finger exposing extensor tendon over proximal interphalangeal joint.  X-ray showed communited intra-articular fracture of the condyle of the proximal phalanx of the left middle finger.  He had undergone two surgical operations.  He was granted sick leave for more than seven months.  There was residual stiffness in the left middle finger, numbness in the pulp of the left index finger and nail deformity in the left index finger.  Power grip of the left hand was weakened.  There was also a skin nodule over the wound of his left middle finger.  He was unable to return to his pre-accident job.  He was awarded $150,000 under this head.

(2) In Chan Hung Hang v Fat Kee Marine Repairing & Engineering Co Limited and Anor(DCPI 2328/2007, unrep, 3 September 2008, HH Judge Marlene Ng) the claimant welder injured his right middle finger in the accident.  He was found to have suffered crush injury to his right middle finger.  Physical examination revealed bruise and tenderness over the tip of the right middle finger and subungal haematoma over nail.  The active range of motion was decreased although flexion and extension mechanism was intact. X-ray showed fracture of the tuft of distal phalanx of the right middle finger.  He had undergone various sessions of physiotherapy and occupational therapy treatment.  There was still mild deviation of the distal interphalangal joint.  He was granted sick leave for just less than four months.  He was able to return to his pre-accident job but could not work as fast as before.  His right middle finger was still painful upon change of weather, exertion and when pressed lightly.  The court awarded $100,000 to the claimant under this head.

56.  The injuries suffered by the claimants in the aforesaid cases were more serious than the plaintiff in this case.

57.  Having regard to the aforesaid cases and the opinion of Dr Lam, I consider that an appropriate award under this head shall be $60,000.

Pre-trial loss of earnings

58.  The plaintiff clamed $32,077 under this head in his revised statement of damages.

59.  Mr Lau submitted that in the EC Action, the court found that the plaintiff should have worked 26 days per month at the daily wages of $750.  His monthly earning was $19,500.  The plaintiff had been granted sick leave from 10 April to 31 May 2009.  The plaintiff claimed lost of pre-trial earnings for 47 days in the sum of $32,077 (inclusive of mandatory provident fund contributions).

60.  I find the plaintiff’s claim for this head reasonable and allow $32,077 to the plaintiff under this head.

Loss of earning capacity

61.  The plaintiff claimed $234,000 equivalent to one year earnings of the plaintiff under this head.

62.  Mr Lau submitted that as it was expected the plaintiff’s working efficiency would be reduced even if he had undergone the rehabilitation treatment suggested by Dr Lam, a claim under this head in the sum claimed should be allowed.

63.  An award for loss of earning capacity would be appropriate if there is evidence that there is a substantial risk that the claimant will at sometime before the end of his working life lose his job and be thrown on the labour market in which he is disadvantaged.

64.  Browne LJ stated inMoeliker v Reyrolle & Co [1977] 1 WLR 132 (CA)at 140 that:-

“This head of damage generally only arises where a plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job.”

65.  Dr Lam opined that the plaintiff’s work efficiency would be moderately reduced especially in doing fine works.  In para 3 of his witness statement, the plaintiff stated the nature of his work as follows:-

“本人從事裝修散工多年，主要做泥水，油漆，拆牆和木工。… 本人的工作性質主要包括在工地提取或搬運重物，用各種電動工具，包括電鑽及電鋸等。本人亦需要上落棚架及上落工作梯等。”

66.  It can be seen that there are not many fine works for the plaintiff to do as a general labourer.  His earning capacity will only be nominally affected.

67.  The plaintiff was not in employment at the time of trial.  Furthermore, in view of the aforesaid opinion of Dr Lam, I do not agree that the residuary mild impairment which the plaintiff may suffer will cause material disadvantage to the plaintiff in securing employment as a general labourer in future.  I do not consider that this is an appropriate case for the court to award damages under this head.

Future medical expenses

68.  The plaintiff claimed $9,000 under this head in the revised statement of damages.

69.  Dr Lam recommended the plaintiff to undergo a course of occupational therapy with desensitization program.  Dr Lam recommended a six weeks course of treatment with three sessions per week.  He estimated that the cost was about $500 per session in private sector.  The total costs will $500 x 3 x 6 = $9,000.

70.  I allow this head of the plaintiff’s claim at $9,000.

Special Damages

71.  The plaintiff claimed $2,902 under this head which included claims for medical expenses ($702), travelling expenses ($200) and tonic food ($2,000) in the revised statement of damages.

72.  The plaintiff had lost the receipts in support of these expenses. According to the medical reports issued by TSKH and the Clinic, the plaintiff had attended altogether 13 treatments.  His claim for medical expenses and travelling expenses in the sum of $702 and $200 are reasonable and are allowed as claimed.

73.  His claim for tonic food is not supported by any documentary evidence and at the high side.  I will allow a reasonable amount of $500 for this item in view of the nature of his injury.

74.  The total amount of special damages allowed is $1,402.

Summary of monetary award

75.  I assess that the damages payable by the defendant to the plaintiff in this action is $102,472.  Particulars are as follows:

(1)             PLSA	$60,000
(2)             Pre-trial loss of earnings	$32,077
(3)             Future medical expenses	$9,000
(4)             Special damages	$1,402
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Total	$102,479

76.  The court has awarded $32,162 to the plaintiff in the EC Action.  Such sum shall be deducted from the damages awarded in this action.  The net amount payable by the defendant to the plaintiff shall be $70,317 together with interest as set out below.

Interest and costs

77.  I make an order nisi for the defendant to pay to the plaintiff interest at 2% per annum on the award for PSLA in the sum of $60,000 from the date of writ to the date of judgment and interest on other heads of damages awarded but less the employees’ compensation at half judgment rate from the date of the Accident to the date of judgment.  Interest on the aforesaid sums after the date of judgment shall run at judgment rate until payment.

78.  I also make a costs order nisi against the defendant in favour of the plaintiff for this action, including all costs previously reserved and costs incurred for obtaining the aforesaid leave from the High Court to proceed with this action, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

79.  The above orders nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.