TAM YUEN HOI v. 陳牧成 AND OTHERS

HCPI 983/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 983 OF 2001

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J U D G M E N T

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INTRODUCTION

1. This is an action for personal injuries suffered by the Plaintiff in an accident on 4 December 1998 in the course of his employment with either the 1st Defendant or the 2nd Defendant in premises under the control of the 3rd Defendant. The Plaintiff was a carpenter aged 36 at the time of the accident. The accident occurred while he and another worker were removing a wooden work-table from the Banquet Hall on the first floor to the Coffee Shop on the ground floor of the Regal Airport Hotel, where decoration works were being carried out. He fell and hurt his back as he was descending a marble staircase leading to the ground floor. There is no dispute that the 3rd Defendant was the principal contractor of the hotel where the accident took place and that the 2nd Defendant was its nominated sub-contractor. The 1st Defendant's defence is that he was a co-worker of the Plaintiff and both of them were under the employment of the 2nd Defendant. The 2nd Defendant's case is that the Plaintiff was not its employee but an employee of its sub-contractor, namely, the 1st Defendant.

2. The issues to be determined in this case are: (1) who was the Plaintiff's employer; (2) how the accident occurred; (3) whether it occurred as a result of any breach of the employer's duty to provide a safe system of work or of statutory duty; (4) whether the 3rd Defendant was in breach of its duty of care under the common law and under the Occupiers Liability Ordinance, Cap 314 and regulation 38A(2) of the Construction Site (Safety) Regulation, Cap 59; (5) whether the Plaintiff was contributory negligent; and (6) the quantum of damages.

THE IDENTITY OF THE PLAINTIFF'S EMPLOYER

3. The Plaintiff first came to know the 1st Defendant as a co-worker of a contractor in 1996. Towards the end of 1997, the 1st Defendant recruited him to work together in the 2nd Defendant's construction site. There is no dispute that on that occasion, the 1st Defendant was a co-worker and recruited the Plaintiff, in the capacity of an agent, commonly called a "snake head", for and on behalf of the 2nd Defendant. In November 1998, the 1st Defendant told the Plaintiff that a site in Chek Lap Kok was recruiting workers and invited him to join. The 1st Defendant did not say who the employer was. When the Plaintiff started working, he saw the foreman of the 2nd Defendant, Fong Kwan Hop, whom he met before. Thence, he knew the site was under the control of the 2nd Defendant. The 1st Defendant gave him a work-permit issued by the 3rd Defendant with a code "SK", identifying him as an employee of the 2nd Defendant working for the 3rd Defendant. On the day of the accident, Fong instructed the 1st Defendant who in turn told the Plaintiff to remove a wooden work-table from the Banquet Hall to the Coffee Shop. After the accident, the Plaintiff presented his sick leave certificates to the 1st Defendant who told him to give them to the 2nd Defendant and took him to the office of the 2nd Defendant for that purpose. The 1st Defendant told the Plaintiff to go after the 2nd Defendant for compensation and not him.

4. The 1st Defendant's case is that he began working for the 2nd Defendant as a sub-contractor in June 1998 and the works under the sub-contract were completed in mid November 1998. The 2nd Defendant then invited him to find a few temporary workers for doing modification work and repairs on the works which had been completed and for clearing up the sites. Hence, he worked as a "snake head" and recruited the Plaintiff and two other workers to work for the 2nd Defendant.

5. According to the 2nd Defendant, the 1st Defendant had been his sub-contractor in a site in Taipo in 1997. Towards the end of 1997, he sub-contracted the decoration works in respect of the Regal Airport Hotel from the 3rd Defendant for about $11 million and he sub-sub-contracted all carpentry works to the 1st Defendant for about $3 million, inclusive of materials and labour. He produced payment records signed and acknowledged by the 1st Defendant in respect of works in Siu Sai Wan, Taipo and the Regal Airport Hotel. He produced photocopies of crossed cheques made payable to the 1st Defendant which corresponded with those payment records. The cheques were for substantial and sometimes round sums. It is extremely unlikely that these were payments to a "snake head" for distribution to workers recruited by the "snake head". These payments covered a period from September 1997 to March 1999. There are also invoices issued by the 1st Defendant covering period up to February 1999. All these contemporaneous documents support the 2nd Defendant's case that the 1st Defendant was his sub-contractor at the time of the accident.

6. The 2nd Defendant's director, Mak Sang Kay, said a few days after the accident, the 1st Defendant together with the Plaintiff went to his office and asked if the 2nd Defendant could claim compensation for the Plaintiff as the 1st Defendant had not taken out any insurance policy for his workers. This was denied by the 1st Defendant, while the Plaintiff's evidence was that he could not recall such conversation. Mak agreed to the 1st Defendant's request and referred the claim to his insurance agent, AIU. As a result, a completed form ("Form 2") signed by Mak on behalf of the 2nd Defendant reporting the accident and admitting to be the Plaintiff's employer was filed with the Labour Department.

7. After about two years, the Plaintiff, the 1st Defendant and another sub-contractor went to the 2nd Defendant's office and told Mak that the insurance company refused to pay compensation to the Plaintiff. After some negotiation, they entered into a tripartite written agreement in which the 1st Defendant acknowledged he was a sub-contractor of the 2nd Defendant and the Plaintiff undertook not to claim compensation from the 2nd Defendant until the compensation has been paid over by the insurance company. The 1st Defendant admitted knowing the contents of the agreement and that the Plaintiff had told him to think carefully before signing. He explained that he was not the 2nd Defendant's sub-contractor but he signed the agreement in order that the Plaintiff may obtain compensation. It is difficult to see how that acknowledgement could help the Plaintiff. At the time, the 2nd Defendant must have known that the insurance company had declined liability as the 2nd Defendant's insurance policy did not cover injuries suffered by employees of its sub-contractors. Obviously, the 1st Defendant was tricked by Mak into signing this agreement as evidence that the 1st Defendant was the Plaintiff's employer and not the 2nd Defendant.

8. I find the 1st Defendant's evidence utterly incredible. It is contradicted by the invoices and payment records which show clearly that the works he sub-contracted were still progressing even as late as early 1999. His evidence that he had completed his sub-contract in mid November 1998 could not be believed. His evidence is also contradicted by the Plaintiff who said that there were more than 10 workers working in the Business Centre, the Banquet Hall and the Coffee Shop for which the 1st Defendant was responsible. Thus the 1st Defendant's evidence that he was employed by the 2nd Defendant as a "snake head" with three other workers doing modification and repair work is incredible. Even though I find Mak dishonest in colluding with the 1st Defendant in attempting to deceive the insurance company into paying compensation for an uncovered risk, I am satisfied on the totality of evidence that the Plaintiff was an employee of the 1st Defendant who in turn was a sub-contractor of the 2nd Defendant.

HOW THE ACCIDENT OCCURRED

9. The 3rd Defendant disputed that the accident had occurred. Its foreman, Ng Kwok Sun, responsible for marble work in the ground to second floors, testified that he was not aware of any accident on 4 December 1998 and if an accident had occurred he would have been notified. The 3rd Defendant's safety officer, Leung Ting Man, also confirmed that no report of any accident involving the Plaintiff had been received, though a few days later, the 2nd Defendant's foreman, Fong Kwan Hop told him about the accident.

10. According to the 1st Defendant, he was informed of the accident while he was working in the Coffee Shop on the ground floor. He went to the staircase and saw the Plaintiff sitting on the floor. Similarly, Fong said he was informed of the accident by a foreman of the 3rd Defendant. He went to the scene and saw the Plaintiff sitting on the floor. Someone called for the ambulance and the Plaintiff was taken to hospital. I do not think on the basis of such evidence, it could hardly be disputed that the accident had occurred. Unless there was a conspiracy among the Plaintiff, the 1st Defendant and Fong to defraud the insurers, there is no reason why the 1st Defendant and Fong would have so testified. The 1st and 2nd Defendants might stand the risk of having to indemnify the 3rd Defendant or the insurers in respect of any compensation paid to the Plaintiff. On the other hand, there were a number of foremen responsible for various trades, including in particular carpentry work, who could have been aware of the accident, informed Fong and called for the ambulance without informing Ng or Leung. Despite I have certain doubts about the credibility of the Plaintiff, I am satisfied that an accident had occurred. The question is how.

11. The Plaintiff said that the marble staircase where the accident occurred was covered by wooden plywood boards as a form of protection for the marble surface. When he stepped onto the step, the plywood board skidded and came off. As a result, he lost balance and fell. His waist and back landed on the staircase first and he skidded for four to five steps, causing injuries to his waist and back.

12. Despite some misunderstanding by the 3rd Defendant as to on which staircase the accident occurred, it is the 3rd Defendant's case that all staircases paved with marble were covered by plywood boards as a means of protection for the marble surface and as an anti-skid measure for people walking on the staircase. The steps were first covered by bubble plastic sheets of two feet in width and affixed to the marble surface by adhesive tape running diagonally and from one side to the other. The plastic sheet provided traction to the interface between the plastic sheet and the marble below and between the plastic sheet and the plywood above. The plywood was eight feet long and the steps were more than ten feet in length. Thus two plywood boards making up the total length of the step were placed on the step and affixed to plastic sheets by adhesive tapes. One end of the tape was affixed to the adjacent wall on one side, while the other end was affixed to the plastic sheet not covered by the length of the plywood board. A second piece of board of appropriate size was used to pave the uncovered area of the step and secured by adhesive tape affixed to the adjacent wall and the other piece of plywood board. The horizontally placed board and the vertically placed board were affixed together by adhesive tape running along the entire edge where they met. The boards were further secured by two adhesive tapes running, one on each side of the staircase, all the way from the top step to the bottom step of the staircase. After the staircase had been covered up, it was checked by Ng to make sure that the boards were properly secured and safe to walk on before others were allowed to walk on the staircase. Ng was in charge of marble work from the ground to the second floors and had to walk on the staircases on numerous occasions everyday. Whenever he discovered any adhesive tape had been worn out or plywood boards were loosen, he would arrange for them to be fixed. In the opinion of Leung, the safety officer of the 3rd Defendant, such measures were appropriate and widely adopted in the trade as a safety measure for workers and protection for marble staircase. Leung also inspected and walked on the staircases everyday. He was satisfied that the plywood cover was secure and the staircase was safe to walk on.

13. It is unfortunate that there was no inquiry by the Labour Department. The other witnesses who were present at the scene immediately after the accident were unhelpful. They confirmed that the staircase was covered by plywood and did not notice anything unusual. In fact, none of them had directed their attention to the condition of the plywood covering on the staircase. I place no weight on their evidence as to the condition of the staircase. On the other hand, neither Ng nor Leung were informed of the accident at the time and they could not offer any evidence as to the condition of the plywood covering shortly after the accident. I am thus left with the Plaintiff's evidence that the plywood covering was insecure and the total lack of supporting evidence on the one hand, and the 3rd Defendant's evidence that the plywood covering was reasonably secured on the other. So the Plaintiff's case stands or falls on his evidence and his credibility.

Credibility of the Plaintiff

14. The Plaintiff has impressed me as being an unreliable and exaggerating witness. Upon admission to Princess Margaret Hospital after the accident, he told the doctor that he slipped and fell with his buttock landing on the ground while lifting heavy object and complained of low back pain and left buttock pain. The Plaintiff's account to the doctor is utterly inconsistent with his evidence in court. What he said in court was that he fell on the staircase with his waist and back landing, instead of the buttock, on the staircase first and then skidded for four to five steps causing injuries to his waist and back. With his back hitting the staircase and skidding for four to five steps, one would expect some redness or abrasion on his back; but there was no such finding by the doctor and no such account given to the doctor as well. The doctor's examination merely revealed tenderness over the Plaintiff's lower back and left buttock with restricted movement of the back. The doctor found no neurological deficit. The X-ray of the spine and pelvis was normal. While some allowance must be given to a patient in distress, the discrepancies are so great and his evidence in court is so unsupported by the doctor's finding that these suggest his evidence in court is an exaggeration not to be believed.

15. Thereafter, the Plaintiff repeatedly complained of low back pain. On 4 January 1999, he was admitted to Pamela Youde Nethersole Eastern Hospital ("PYNEH") for pain at the level of the third and fourth lumbar vertebrae (L3/L4) and sciatica. But radiological examination showed a perfectly normal spine, though magnetic resonance imaging (MRI) showed a postero-lateral disc protrusion at L4/L5 vertebral disc with no compression on the nerve roots or cauda equina. It was highly unlikely that the doctor would have misidentified L4/L5 for L3/L4 and in any event, the disc protrusion at L4/L5 has not caused any compression on the nerve roots as to give rise to any pain. His complaint of pain at L3/L4 is not supported by any medical evidence.

16. But just two months before the accident, the Plaintiff attended PYNEH and complained of on and off back pain for one year and back and left leg pain for three days. Medical examination revealed essentially normal finding. The Plaintiff explained that he had no back pain before the accident. He said his father died of liver cancer and he was worried that he might develop a similar condition so in order to obtain a thorough examination for himself he made a false complaint to the doctor. I find this explanation incredible. Firstly, on his own evidence, after his father's death, he had been called to attend an examination in Prince of Wales Hospital in connection with his father's disease. So the Hospital Authority had taken the initiative to check out his liver condition and there was no need for another check by PYNEH. Secondly, during the examination in PYNEH, he refused treatment but insisted on a referral to the orthopaedic clinic. Indeed the parties common expert, Dr Lau Hoi Kuen, opined that the degeneration of the Plaintiff's spine and mild protrusion of the L4/L5 disc took a long time to develop and should have existed before the accident. Hence, the Plaintiff was symptomatic before the accident on 4 December 1998. Clearly, his visit to PYNEH on 3 October 1998 was out of concern for his orthopaedic problem than his liver problem. He was aware of the problem of his back before the accident. His explanation in court was just to cover up his already existing orthopaedic problem which he dishonestly attributed to the accident.

17. During the examination by Dr Lau Hoi Kuen, the Plaintiff demonstrated severe limitation of the straight leg raising of both legs, severe motor weakness and severe sensory deficit of both lower limbs. But when tested in the supine position without the Plaintiff's notice, Dr Lau found that his severe limited straight leg raising improved dramatically. Dr Lau concluded that he was exaggerating his symptoms and that the extensive motor and sensory deficit of his legs does not fit in with the anatomical arrangement of the nerves in the lumbar region of the spine. I do not think Dr Lau's evidence could be doubted. The Plaintiff is an exaggerating witness. His evidence has to be taken with the greatest caution.

18. The Plaintiff complained of severe pain during the early stage of his recovery. At present, he complained of weakness of his waist and back and stiffness and numbness of his left leg. He complained of severe pain after standing or walking for more than 10 to 15 minutes and he had to do forward bending exercise to relieve his spine. However, a surveillance video tape taken by the 3rd Defendant's detective in May 2002 showed that the Plaintiff conducted his activities in a normal manner. He was seen carrying two large and bulky schoolbags, one on each side of his shoulders when he escorted his two children to and from school. He exhibited no difficulties during the journeys which lasted 10 to 30 minutes, though on one occasion he was seen performing a bending exercise for less than one minute. He walked with a normal gait which suggests he was not having the discomfort or weakness or pain he described in court. He stood up every now and then in court to do exercise at irregular intervals. Dr Lau's opinion is that in the average cases with such back sprain, symptoms should subside within a few months, certainly not more than a year. It is now four and half years after the accident, yet the Plaintiff still complained he was unable to return to work. I think he was only exaggerating his condition. I think his bending exercises in court are also exaggerations.

19. I find the Plaintiff a very exaggerating witness. His account of the accident given to the doctor in Princess Margaret Hospital is inconsistent with his evidence in court. He was exaggerating the seriousness of the accident when saying that his back hit the staircase and he skid four to five steps. His complaint of pain at L3/L4 is inconsistent with objective medical evidence. He attempted to deceive Dr Lau Hoi Kuen by exaggerating the extensive motor and sensory deficit of his legs. He concealed his pre-existing low back problem and dishonestly attributed it to the accident. I find the Plaintiff an unreliable witness who has the propensity of exaggerating in order to achieve his own ends. I cannot be sure if he was not exaggerating when he said he fell because the plywood board covering the staircase came off. If the accident was indeed caused by the loosen plywood board, it would be strange that he did not make an immediate complaint to the 1st Defendant or Fong.

Plaintiff failed to discharge burden of proof

20. On the evidence of Ng and Leung, I am satisfied that the 3rd Defendant had in place a system for covering up the marble staircases and for checking if the plywood cover was secure and safe to walk on. I am satisfied that the plywood boards were reasonably secured for the purpose. Ng and Leung inspected the staircases every day. Ng, in particular, was the foreman in charge of marble works and responsible for the ground to the second floors. He walked those staircases many times during the day. Whenever he noticed any worn out adhesive tapes and plastic sheets he ordered them to be replaced and made sure that the boards were secure. Mr Shum, for the Plaintiff, suggested that there were other means of securing the plywood boards. I do not have to consider them here, as the issue at this stage is whether the accident occurred in the way the Plaintiff described and not whether the measures taken by the 3rd Defendant were adequate.

21. Though there is no evidence from any of the Defendants to rebut the Plaintiff's account as to how the accident occurred, the burden of proving how it occurred rests on the shoulders of the Plaintiff. Given the very unfavourable view I formed of the Plaintiff's credibility on the one hand, and the very credible evidence of Ng and Leung as to how the plywood boards were secured and the system in checking the plywood cover on the other, I find it was unlikely that the board had come off as alleged by the Plaintiff. The boards were secured by strong adhesive tapes to the side wall, to the plastic sheets below and along the edge with one another. It was difficult if not practically impossible for any piece to come loose by walking on it, unless those who installed the boards did not do so properly. As against that likelihood was the evidence of Ng and Leung who inspected the staircases and walked on them many times every day. I cannot be satisfied even on a balance of probability that the accident occurred because one of the plywood boards came off as the Plaintiff described. This is not a case where the doctrine res ipsa loquitur can assist the Plaintiff as the accident was the Plaintiff's slipping and falling which could be caused by a multiplicity of reasons in isolation or in combination, including the Plaintiff's own carelessness in not watching where he was going, the existing weakness of his back, his failure to cope with the speed of his co-worker while descending the staircase, the presence of loose materials, such as sand or newspaper and other debris or as the Plaintiff alleged, the loosen plywood board. This is not the classic case of an object falling from height and the plaintiff did not know how that occurred but in normal course of event it would not have occurred had it not been for negligence of the party responsible for the object. If I were satisfied that the plywood board was not properly secured and came off when the Plaintiff stepped on it, then the irresistible inference is that those who covered up the staircase had not exercised proper care and skill and the 3rd Defendant might be vicariously liable for their negligence. But even then, the maxim res ipsa loquitur does not apply as the cause of the accident was ascertained. Suffice it to say, the Plaintiff bears the burden of proving how the accident occurred and unfortunately he has failed to discharge that burden. This must necessarily mean that he failed to discharge the burden of proving breach of duty on the part of any of the Defendants.

22. The above is sufficient to dispose of the matters before me, but for the sake of completeness, and in the event of an appeal, I shall also consider the questions of contributory negligence, quantum of damages which I would have awarded if I had found any of the Defendants liable and apportionment as between the three Defendants. This would necessitate a consideration whether the measures taken by the 3rd Defendant in covering the marble staircase were sufficient in discharging its duty of care owed to its visitors at common law and under section 3(2) of the Occupiers Liability Ordinance, Cap 314 and regulation 38A(2) of the Construction Sites (Safety) Regulations, Cap 59.

3RD DEFENDANT'S LIABILITY AS OCCUPIER AND PRINCIPAL CONTRACTOR RESPONSIBLE FOR THE CONSTRUCTION SITE

23. The 3rd Defendant's duty under the Occupiers Liability Ordinance and the common law was a duty to take such care as in all the circumstances was reasonable to see that the visitor would be reasonably safe in using the premises for the purposes for which he was invited or permitted to be there. At the same time, as the principal contractor responsible for the construction site, he was under a statutory duty to ensure so far as was reasonably practicable suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained. The 3rd Defendant's duty as an occupier must be wider than the statutory duty under Regulation 38A of the Construction Site (Safety) Regulations as the former covers all aspects of the premises the visitor was invited or permitted to be on while the latter covered only access to and egress from place of work on the site. So far as the staircase was concerned, the duty under Regulation 38A must be more onerous than its duty as an occupier. The duty to do what was reasonably practicable must be a more onerous duty than taking reasonable care in all the circumstances. In the circumstances of the present case, if the 3rd Defendant had discharged its duty under regulation 38A(2), it would have discharged its duty under the Occupiers Liability Ordinance and at common law.

24. In construing a similar provision under section 63 of the United Kingdom Factories Act 1961 in relation to a mine-owner's duty to support the roof of a mine, Asquith LJ said in Edwards v National Coal Board [1949] 1 KB 704 at 712 and 747:

"'Reasonably practicable' is a narrow term than 'physically possible', and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s.49? (b) Are these measures reasonably practicable?"

25. This passage was cited with approval by Lord Reid in Marshall v Gothan Co Ltd [1954] AC 360 at 373, where he said:

"... if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable. ... The danger was a very rare one. The trouble and expenses involved in the use of the precautions, while not prohibitive, would have been considerable. The precautions would not have afforded anything like complete protection against the danger, and their adoption would have had the disadvantage of giving a false sense of security."

26. By a similar analysis, I think the duty imposed by regulation 38A(2) is not an absolute duty of taking all measures of ensuring safe access to and egress from every place of work in the construction site. The duty is to ensure suitable and adequate safe access and egress so far as is reasonably practicable. To determine whether a contractor responsible for the site has discharged its obligation under regulation 38A(2), two questions have to be asked: (1) whether the measures adopted by the contractor were suitable and adequate and (2) whether there were no other reasonably practicable, suitable and adequate measures which the contractor could have been adopted. What is suitable and adequate depends on all the surrounding circumstances of the construction site. What is reasonably practicable involves the balancing of risk on the one hand against the costs and inconvenience in providing the measures necessary for averting the risk on the other.

27. While public policy would impose on the employer an obligation to ensure that his employees work under as safe an environment as possible, and on an occupier of premises to ensure that it is reasonably safe for his visitors, one cannot lose sight of the reality of the conditions in a construction site, the contractor's usual obligation to progress with works diligently and in accordance with programme and the fact that those who work there must be aware of the inherent danger of working in a construction site. By this, I do not mean the contractor responsible for the construction site may be at liberty to cut corners and sacrifice safety for cost and progress of work because there should be no compromise when human lives may be at stake. But the very much higher standard of care required to ensure, for instance, the safety of the general public walking in a busy MTR station undergoing renovation work may not be applicable to workers working in a construction site because the danger is not an usual one which the general public would be alert to and the risk of accident is high due to the volume of traffic.

28. The staircase where the accident occurred was covered by plywood boards in the manner as I have described above. The purpose of installing the boards was to protect the marble surface from damage and as a safety measure because the marble surface would be slippery if water was spilled on it or if people walk on it wearing wet shoes. In my view, covering the marble steps was a necessity and the way the steps were covered with bubble plastic sheets and then plywood board was reasonably safe and secure for people to walk on, even if they were carrying heavy objects. The measure adopted by the 3rd Defendant were suitable and adequate.

29. There were other measures, as suggested by Mr Shum, which could have made the plywood board more secure. For example, thicker wooden boards could have been used so that the vertical and horizontal boards could be fixed together by nails. Alternatively, a tooth shaped wooden plank cut into the shape of the steps and nailed to the adjacent walls could be used to keep the plywood boards in position. Mr Leung considered these not reasonably practicable. The use of nails might damage the marble surface and even worse would be a potential danger if the nails exited through the boards or otherwise became exposed. The tooth shaped wooden plank method could not be used because the adjacent walls would have to be marbled as well and glass panels would be installed by the wall for aesthetic purpose. If the planks were not to be nailed to the marble, they would have to be secured one metre away from the wall leaving little room in the staircase for people to walk on resulting in a even greater hazard than the danger they were intended to prevent. Not only were these measures unsuitable, they were very costly in terms of materials and workmanship. In terms of costs, they were out of proportion with the risk, especially in view of the availability of the equally, if not more, effective measures of using plywood. In my view, these alternative measures were neither suitable nor reasonably practicable.

30. There were many other alternatives that could be considered, including leaving the side wall to be marbled after all works had been completed or closing the staircase to any traffic altogether. Such measures were impracticable and would delay the progress of work. Workers in a construction site are aware of the inherent danger of their employment. They are expected to be alert to usual dangers. The risk of the plywood boards secured in the manner as adopted by the 3rd Defendant coming loose was very low but the costs and impracticality of alternative measures were out of proportion with the risk.

31. In my view, the measures adopted by the 3rd Defendant was suitable and adequate and there were no other reasonably practicable measures which were suitable and adequate and which the 3rd Defendant could have adopted. I am satisfied that the precautions taken by the 3rd Defendant were sufficient to discharge its duty under both the Occupiers Liability Ordinance and regulation 38A(2) of the Construction Sites (Safety) Regulations and under the common law. This conclusion is premised on my finding that the Plaintiff was unable to discharge the burden of proving that the accident occurred as a result of the plywood board coming loose. If on the facts I were satisfied that the accident was indeed caused in the way as described by the Plaintiff, the irresistible inference must be that those who were responsible for installing the boards had not exercised proper skill and care and the 3rd Defendant would be in breach of its duty of care under common law or the Occupiers Liability Ordinance or in breach of regulation 38A(2) of the Construction Site (Safety) Regulation.

LIABILITY OF THE 1ST AND 2ND DEFENDANTS AS EMPLOYER AND SUPERIOR SUB-CONTRACTOR RESPECTIVELY

32. The Plaintiff's case against the 1st Defendant as his employer is that he was in breach of the employer's duty to take reasonable care of the safety of his employee while at work, namely that he failed to provide the Plaintiff with and/or maintain a safe place of work and/or means of access thereto or egress therefrom.

33. The extent of an employer's duty of care in respect of the safety of his employees depends on the particular circumstances of the site where work has to be carried out. The 1st Defendant contracted to execute works in the Business Centre on the second floor, the Banquet Hall on the first floor and the Coffee Shop on the ground floor. The Plaintiff was required to remove a work-table from the Banquet Hall on the first floor via some common area into the Coffee Shop on the ground floor. The staircase where the accident occurred was clearly in the common area of the hotel which could not be regarded as part of the work place. The staircase was under the control of the principal contractor, i.e. the 3rd Defendant. The 1st Defendant had no control over the staircase and could not improve on the condition of the staircase.

34. The principal contractor responsible for the construction site would have more resources, manpower and expertise than its sub-contractors. The principal contractor is required by law to employ a safety officer. It is the person in overall charge and the occupier of the construction site. Unless a sub-contractor has reason to suspect that the principal contractor is adopting an unsafe system of work or is in breach of statutory duty or otherwise incompetent in looking after the safety of the construction site, it might well be reasonable for the sub-contractor to expect or even to assume that the principal contractor is competent in discharging its duty of ensuring that the common area in the construction site would be safe for its workers as well as those of his sub-contractors. The employer's duty of care in respect of the safety of his employees over common area of the construction site over which he has no control would be discharged if he warns his employees of dangers which he is aware of and brings that to the attention of the principal contractor or contractor responsible for the site so that any unsafe condition can be rectified.

35. In the present case, the 1st Defendant was entitled to rely on those measures taken by the 3rd Defendant as adequate for the safety of his employees. There is nothing to suggest that the 3rd Defendant was incompetent in discharging its statutory duty and common law duty. In fact, I have found the measures taken by the 3rd Defendant sufficient to discharge those duties. There was no danger for the 1st Defendant to warn the Plaintiff of. Accordingly, I find that the 1st Defendant was not in breach of any duty of care owed to the Plaintiff. The 2nd Defendant was the superior contractor to the 1st Defendant. The duty it owed to the Plaintiff could not be higher than that owed by the 1st Defendant or the 3rd Defendant. The 2nd Defendant is therefore likewise not liable for any breach of duty to the Plaintiff.

LIABILITY OF THE 1ST AND 2ND DEFENDANTS AS JOINT OCCUPIERS WITH THE 3RD DEFENDANT

36. Mr Shum submitted that the 1st and 2nd Defendants were joint occupiers of the staircase with the 3rd Defendant. In view of my conclusion above, it is not necessary for me to consider this issue. However, that argument is plainly wrong. Though the word "occupier" is not defined in the Occupiers Liability Ordinance, it has been judicially defined by Lord Denning in Wheat v Lacon [1966] AC 522 where Lord Denning said at 577 and 578:

"In the Occupier's Liability Act, 1957, the word 'occupier' is used in the same sense as it was used in the common law cases on occupiers; liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises........

Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his 'visitor'; and the 'occupier' is under a duty to his 'visitor' to use reasonable care. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be 'occupiers'. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.

In Salmond on Torts (14th Edn., 1965) p. 372, it is said that an 'occupier' is 'he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons'. This definition was adopted by Roxburgh, J., in Hartwell v. Grayson Rollo and Clover Docks, Ltd., and by Diplock, L.J., in the present case. There is no doubt that a person who fulfils that test is an 'occupier'. He is the person who says 'come in'; but I think that that test is too narrow by far. There are other people who are 'occupiers', even though they do not say 'come in'. If a person has any degree of control over the state of the premises it is enough."

37. As for the position of independent contractors, Lord Denning said at page 595:

"Fourthly, where an owner employed an independent contractor to do work on premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty towards all those who might lawfully come there."

38. On the fact, there is no dispute that the 1st or 2nd Defendant had no power of control over the staircase. Neither of them could control how the staircase might be used. They had no power to exclude others from using the staircase or to improve on its safety. It could not be said that they had sufficient degree of control over the staircase as to put them under a duty of care towards those who use the staircase. The argument of joint occupier must fail.

CONTRIBUTORY NEGLIGENCE

39. It was the 3rd Defendant's defence that workers were prohibited from using the staircase. However, even according to the evidence of Ng and Leung, there was no such prohibition. What the 3rd Defendant did was to advise its sub-contractors during monthly site meetings not to use the staircase but this advice was not even communicated to the 1st Defendant or his workers. There were no notices of the advice posted up in the site or near to the staircase. The advice was not mandatory. Ng did not expect it would be followed and would not prevent workers from using the staircase either, unless while work was being carried out on the staircase. Thus, the prohibition as a defence or as a claim for contributory negligence must fail.

40. Mr Leung submitted that there were other alternative and safer or even shorter routes from the Banquet Hall to the Coffee Shop and the Plaintiff was contributory negligent in not using those alternative routes. These include the rear staircases or fire exit staircases and cargo lifts. The Plaintiff said he was unaware of these alternatives. Even if that was not credible, I think in the absence of express prohibition a worker was free to use any route he chose. The rear staircases were about four and half feet wide. Though not impossible, they were obviously too narrow for two persons to carry a work-table of that dimension and the workers would have to travel through narrow passages to access the staircase or cargo lifts. On the other hand, the marble staircase, if properly covered, was a much safer route to use when carrying large bulky objects. I do not think the Plaintiff liable for contributory negligence.

QUANTUM

Pain suffering and loss of amenities

41. The Plaintiff was 36 years old at the time of the accident. He complained of severe pain at the time of the accident and now of residual pain after walking for more than 10 to 15 minutes. He complained of weakness and stiffness of his back and numbness of his left leg. He said he could not sleep or enjoy playing basket ball, swimming and cycling which he used to enjoy. He said he had problem having sex also. An MRI of his lumbar spine showed degeneration and mild protrusion of the L4/L5 disc, which Dr Lau Hoi Kuen opined was a pre-accident condition. Dr Lau found he was exaggerating the condition of his legs and back. I also found the Plaintiff exaggerating and do not accept his evidence about the pain he is suffering now and at the time of the accident. The surveillance video tape taken in May 2002 showed he had no difficulties carrying out his daily activities. Dr Lau assessed the Plaintiff to have suffered 5% impairment of the whole person because of the condition of his back and attributed 2% of his impairment to the accident.

42. The starting point for serious injury category is around $460,000: see Yu Kwok Wing [2001] 2 HKLRD 306 and Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture CACV 3/2002. The injuries suffered by the Plaintiff fell far short of the "serious injury" category. The injury he suffered was a minor one and he had a good recovery. He did not suffer any disc prolapse or bone fracture as a result of the accident. According to Dr Lau, any pain the Plaintiff suffered should be of a mild degree and would have subsided in a few months. Essentially the Plaintiff was exaggerating his pre-injury condition. I consider an award of $50,000 for pain, suffering and loss of amenities adequate.

Pre-trial loss of earnings

43. The Plaintiff was a carpenter earning $800 a day. It was Dr Lau's opinion that in the average cases with such back sprain, symptoms should subside within a few months and certainly not more than one year. Dr Lau's opinion is that the Plaintiff is now fit to return to his work as a carpenter. The Plaintiff claimed loss of earning from the date of accident until 1 August 2002. Based on Dr Lau's opinion, the claim is grossly exaggerated. Nine months' earning is the maximum I would be prepared to award to him and that included an allowance for the time needed for him to find new employment after returning from sick leave. The Plaintiff said he was in full time employment before the accident. Hong Kong has witnessed a downturn in the property market and the construction industry since 1997. Though there is no evidence as to what the labour market was for carpenters, I think it would not be inappropriate to give a notional reduction of 4 days from the usual 26 days month for manual labourers in 1999. As I consider the Plaintiff exaggerating, I would not award him any loss of earning in respect of any period of sick leave given beyond this nine-month period, i.e. beyond 3 September 1999. There is no reason why any of the Defendants should be responsible for his not returning to work when he could. Accordingly, I would award him $158,400 ($800 x 22 x 9) as total accrued loss of earnings. The Plaintiff was not entitled to any mandatory provident fund payment during that period of nine months.

44. As for loss of earning from 4 September 1999 until the date of trial, I would allow for a further notional reduction of work to 20 days a month due to the downturn in economy and would award him loss of earning based on his loss of earning capacity of 2% attributable to this accident. Accordingly I would award him $14,803 ($800 x 20 x (46 + 8/31) X 2%) loss of earning and a further amount of $502 ($800 x 20 x (31 + 11/31) x 2% X 5%), being the employer's contribution to the Mandatory Provident Fund with effect from 1 December 2000. The pre-trial loss of earning and contribution to MPF would therefore be $173,705.

Loss of future earning

45. As the Plaintiff is now 41 years old. I consider a multiplier of 12 appropriate. For the purpose of assessing future loss, I assume work will be available for 24 days in a month. I would assess his loss of future earning inclusive of employer's MPF contribution as $58,061 ($800 x 24 x 12 x 12 x 2% x 105%).

Special damages

46. I would allow the Plaintiff medical expenses of $8,800 and traveling expenses of $6,400 for his 400 visits to the hospital for treatment. The Plaintiff's claim for tonic food would be disallowed. The amount of special damages would therefore be $15,200.

Interest

47. In addition, the Plaintiff would be awarded interest in the amount of $1,667 ($50,000 x 20/12 x 2%) on the award for pain, suffering and loss of amenities at 2% per annum from 1 December 2001 until judgment and interest in the amount of $43,210 (($173,705 + $15,200) x (55 + 28/31)/12 x 4.91%) on the award for pre-trial loss of earnings and special damages.

Summary of assessment on quantum

48. In summary, my assessment on quantum would be $341,843, which is arrived at as follows:

(1) Pain, suffering and loss of amenity:	$ 50,000.00
(2) Pre-trial loss of earnings:	$ 173,705.00
(3) Loss of future earnings:	$ 58,061.00
(4) Special damages:	$ 15,200.00
(5) Interest for general damages:	$ 1,667.00
(6) Interest for special damages:	$ 43,210.00
Total:	$ 341,843.00
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CONCLUSION

49. For the above reasons I find that no liability can be established against any of the Defendants and the Plaintiff's claim must be dismissed. The Plaintiff should be left to his remedy in a no fault liability claim under the Employees Compensation Ordinance, Cap 282. There is no need for me to consider the issue of contribution, indemnity or apportionment as between the Defendants. I make an order nisi that the Plaintiff pay the costs of the Defendants to be taxed, including the costs of the 3rd Defendant's notice of contribution and indemnity. The Plaintiff's own costs shall be taxed in accordance with Legal Aid Regulations.