CHOW SIU PING v. HOP LEE IRON WORKS AND ANOTHER

HCPI 103/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 103 OF 1999

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J U D G M E N T

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1. The Plaintiff claims damages for personal injuries arising out of his employment with Defendants on a construction site at Wang Tai Road, Lot 6115, NKIL, Kowloon Bay, Kowloon, Hong Kong, which, it is claimed, resulted from the negligence, breach of statutory duty and/or breach of contract of Defendants, or their servants, or agents.

FACTS

2. The 2nd Defendant was a construction contractor on a site at Wang Tai Road, a construction site in terms of the Construction Sites (Safety) Regulations, Cap. 59. The 1st Defendant, a steel-fixing contractor, was a sub-contractor of the 2nd Defendant. Both Defendants were responsible for the site and occupiers in terms of the Occupiers Liability Ordinance, Cap. 314.

3. The Plaintiff, aged 51 at the date of the accident, 21 January 1991, was employed by the 1st Defendant as a steel binder and had been working at the site as a permanent worker for about 3 months before the accident.

4. By 21 January 1991 the building was completed to the stage where the floor of the 6th floor was to be poured. The steel binders had completed most of their preparatory work for the pour, but as there was a minor shortage of steel they were ordered by their supervisor to go to the 5th floor to collect surplus steel left there. The bulk of the steel required by the binders had been lifted by crane, according to usual practice, to the floor where it was needed, but the shortfall was to be made up by recovering steel from the floor below.

5. The Plaintiff, who headed a team of steel binders, was directed to the floor below to recover the steel. Staircases connected the 5th to the 6th floor at various points but were not used by the team, the members of which climbed down the formwork that was in place for concreting the walls. Plaintiff followed members of his team down the formwork. They intended to pass the steel from hand to hand up to team members on the 6th floor.

6. The formwork consisted of long planks about 4 ins by 4 ins thick, fastened parallel and horizontally, at intervals of about one metre, to the wall. Vertical planks were fastened against them. The effect was as of a ladder with widely spaced rungs. Metal bolts, or screws and plates were used to fasten the structure to the wall.

7. As the Plaintiff climbed down, the top plank he held for support came away, either because it was unfastened or because the holding bolts had worked loose. As a result of losing this handhold the Plaintiff fell the remaining distance to the 5th floor, a distance of about 6 feet. Plaintiff has no real memory of what happened after that and could not say whether, or for how long, he lost consciousness. He only recalls events from the next day when he found he was in hospital. The evidence does not show whether he lost consciousness immediately after the accident, but he was not recorded as being unconscious on his entry to hospital.

LIABILITY

8. Having heard the evidence I was satisfied that there was no general or specific prohibition on the workers using the formwork for access if they wished. Although Plaintiff said that he did not usually use the formwork because he realised it could be dangerous, it appeared that his disinclination to use it had more to do with his mature years and general agility; it being a form of access more favoured by the younger workers.

9. On the day in question he followed other workers down the formwork, believing that speed was required of him in collecting the steel and that he would not be looked on with favour by the supervisor if he was seen to take the perceptibly slower staircase route.

10. The Plaintiff firmly believed that if he was seen by the bosses to be slow his job could be in jeopardy. This was also the view of Mr Yip, his co-worker (PW3) who said that it would not be alright to use the stairs because it would be slower. Whether this view had been promulgated overtly and actively by management matters little; that was clearly the perception of the workers. Both the Plaintiff and Mr Yip were well aware of the management attitude that time was money; as Mr Yip said in re-examination, 'In our trade nothing is relaxed... In our trade everything is in a hurry, the timing has to be accurate, you can't delay'.

11. There was no evidence from the Defendants as to what measures they adopted, if any, to discourage or prevent the workers using the formwork for access, whether by signs, or verbal admonitions, or through safety lectures.

12. I found that no special safety instructions were given to the workers to prevent, or discourage them from using the formwork. The Plaintiff said that workers used the formwork when going to and coming from work, at meal breaks and in the course of working. To his knowledge no one forbade the practice and no one cared about it. Mr Yip said that he had not heard anyone forbid the practice. He agreed that the workers seldom used the stairs, although what he termed 'white hats', (presumably executive or engineering staff), may have done, and although he himself did not always use the formwork to get to and from the working level, he had done so, ahead of the Plaintiff, on the day of the accident.

13. The Plaintiff and Mr Yip agreed that although staircases existed they were often difficult or impossible to use, either because the approaches were blocked with debris, equipment or construction material, or because the stairwells were obstructed, incomplete or poorly lighted. When, on 21 January 1991, the steel binders were ordered to the lower floor, no one in authority stopped them using the formwork for access and as preparation was being done at speed for a concrete pour, it is unsurprising perhaps that no attempt was made to stop the workers using the formwork as a convenient ladder. Both Plaintiff and Mr Yip stated that the steel could not have been carried up the stairs because it was too long; Mr Yip said the condition of the staircases were such that it would not be possible to get through with the steel.

14. No doubt anyone, whether worker or manager, questioned about the practice would have agreed that it was not safe or to be encouraged, but the evidence showed that the exigencies of work and time constraints, combined to ensure that any prohibition (assuming such existed) against workers using the formwork for access, was ignored routinely and a blind eye turned to the consequences of any breach whenever necessary.

15. To avoid liability for negligence, or breach of duty of care an employer would have had to prohibit the practice, ensure that such prohibition was made known to the workers and provided some form of penalty for breach. That could have been accomplished by a combination of the following measures;

1) Issuing prohibitions orally and in the form of site notices to the workers.

2) Ensuring that supervisors, foremen and safety officers repeated the prohibition and exercised vigilance against the practice while work was being carried out.

3) Ensuring that penalties for breach were put in place in the same manner as penalties e.g. dismissal, have been adopted for failure to wear safety helmets.

16. Prohibition alone would be insufficient. What was needed in addition were convenient alternatives to the temptation of the simple and quick access offered by the formwork. On some buildings lifts could be provided. Where staircases existed they would have to be kept free of obstructions and well-lighted to provide viable alternative access. If site restrictions, or the stage of building reached, made use of staircases impossible, scaffolding, or fixed ladders could be installed so workers could reach the working area safely.

17. Where ladders or scaffolding were impracticable and access was only possible via the formwork, such formwork should be safely secured and adapted for access, for as short a time as necessary.

18. Both the 1st and 2nd Defendants must have known of the practice as they were in control of the site to a significant degree and, from the evidence, must have been aware of it. The 1st Defendant, as employer, failed to meet the standard expected of a reasonably prudent employer as no steps were taken to forbid the practice, or to provide suitable alternative access.

19. The 2nd Defendant, as occupier, failed in its duty to the Plaintiff as a lawful visitor to the site, in not taking proper steps to ensure his safety while working on the site. No effective prohibition was in place, nor was a truly viable alternative means of access provided. I find the 2nd Defendant in breach of its common duty of care under s.3 of the Occupiers Liability Ordinance.

20. I also find that the 1st and 2nd Defendants were in breach of Regulations 38 and 51 of CSSR Cap.59, in that being contractors responsible for the site they failed to provide safe and suitable access, failed to maintain such access, failed to make and keep a safe place of work and that such breaches contributed to the accident.

CONTRIBUTORY NEGLIGENCE

21. I have considered defence arguments that Plaintiff was contributorily negligent for the accident by using the formwork when he must have known it to be a dangerous practice, but find that he was not. He had not disobeyed safety instructions because none existed, and although he recognised an element of risk in using the formwork it cannot be said that he acted with reckless disregard for his own safety in so doing. The formwork appeared secure and had been used by others before him without any mishap. The risk of a fall was reduced if the formwork was secure. The Plaintiff did not lose his balance climbing down; rather he fell because the plank he used as hand-hold came away, because it was not secured, or had worked loose.

22. Clearly Plaintiff felt under some pressure to complete the work. Added to that was an understandable anxiety that he not be seen to be working at a slower pace than younger workers. Plaintiff in evidence said that in his work one had to be quick and asked rhetorically 'who dared to go by the staircase?' Plaintiff believed that if a worker was seen to use the staircase at a stage when time was money, he would be asked not to come back next day. Mr Yip agreed with this as a likely reaction of the supervisor to the workers using the staircase for gathering steel; he said that it would not be alright as it would be slow.

23. I do not find any contributory negligence on the part of the Plaintiff.

MEDICAL EVIDENCE

24. Plaintiff was in hospital for about seven weeks and on sick leave for over two years. He had fractures of the first lumbar vertebra and the left distal radius. He had badly impaired hearing of both ears from shortly after the accident which has persisted until now. He complained to the examining doctors of incidents of giddiness and headaches; stiffness, aching, weak grip and shortened radius of the left wrist; back pain which meant discomfort when he was sitting or standing for prolonged periods and episodes of pins and needles over his left leg.

25. In evidence he complained of continued headaches, occasional dizziness and tinnitus. Before the accident he had no problems with his hearing; the loss of hearing and tinnitus manifested themselves soon after the accident. At present his right ear is better for using the telephone than his left and he has tinnitus, which is ever-present, in both ears. Before the accident Plaintiff had no back problems, but after it he had continuing back pain or discomfort. He said that at present he had slight pain if he stood or sat for too long.

26. Although there was a lot of medical evidence gathered for the purposes of trial, the medical evidence in its final form showed that there was in fact little difference in the assessments of residual disability.

27. The sum of the Plaintiff's injuries was:

1. Fractured lumbar spine (at L1 and L2)

2. Colles fracture of left wrist

3. Impaired hearing/tinnitus

4. Post concussion syndrome

ORTHOPAEDIC FINDINGS

28. Dr Au Ka Kau, an orthopaedic specialist, confirmed that the Plaintiff had suffered a fracture of the L1 and L2 vertebrae; that he had prolapsed discs at multiple levels and a fracture of the left distal radius with a malunion. On examination he found a "dinner-fork" deformity of the left wrist; limitation of left wrist movement and weakness of the left hand grip. There was tenderness of the lumbar spine and limitation of the lumbar spinal movement. There was impaired pinprick sensation in the left leg.

29. Dr Au was satisfied that the fractures resulted from the fall and that the prolapsed discs were compatible with the injury sustained. The impaired pinprick sensation suggested nerve impingement from the prolapsed disc.

30. He found the percentage of total body impairment was 26% (taking a combination of left wrist impairment 7% - lumbar spine 20%). Loss of earning capacity was assessed at 52%.

31. Dr Au considered the impairment permanent and confirmed that Plaintiff could not work again as a steel binder. He thought that in future sedentary work was suitable for Plaintiff and considered that Plaintiff had attained maximum improvement of his disability.

32. In evidence he said that although some pre-existing degeneration of the spine could not be ruled out, given Plaintiff's age and the nature of his employment, as it was asymptomatic prior to the accident, that such degeneration could have been triggered by the accident. Without the trigger of the fall such degeneration need not have caused any problem for Plaintiff throughout the rest of his life.

33. Dr Cheng, the Defendants' orthopaedic specialist, assessed Plaintiffs wrist impairment as follows:

Loss of 30 flexion - 5% upper limb impairment

Loss of 20 extension - 2% upper limb impairment

Total = 7% upper limb impairment, which is 4% whole person impairment

34. The residual back pain and subjective paraesthesia of the Left lower leg was assessed at 15% whole person impairment.

35. Total whole person impairment was assessed at 15% and loss of earning capacity was 25%.

36. Dr Cheng's physical findings were very close to those of Dr Au. There was a slight difference in the formula the two doctors used to assess the percentage of disability.

37. Dr Au explained that he and Dr Cheng had adopted the same reference in assessing spinal disability, but he had based his assessment on X-ray, whereas Dr Cheng had based his on assessing functional disability. Dr Au said it was recommended medical practice that a patient be given the benefit of whichever method gave the higher category of disability. However even with the difference of assessment Dr Au's and Dr Cheng's percentages of disability were fairly close.

38. Of the two I consider that applied by Dr Au the more appropriate and I accepted his assessment. Dr Cheng agreed with Dr Au's view of likely pre-existing degeneration, that as long as it was asymptomatic there need be no problem with it in the absence of a triggering event such as the fall and the Plaintiff could expect to lead a symptom-free life.

NEUROLOGICAL EXAMINATION

39. Drs Woo and Ho examined Plaintiff neurologically. Dr Ho considered Plaintiff had sustained a moderate closed head injury associated with a period of post-traumatic amnesia, as a result of the fall. He said this would account for Plaintiff appearing to be conscious post-accident, but not remembering anything about events.

40. Impairment of the whole person was assessed at 3% and loss of earning capacity was around 10%. These assessments related only to the neurological disability.

41. Dr Woo considered Plaintiff's mild cognitive dysfunction was 3% impairment of the whole person. He believed the loss of earning capacity should not exceed 5%.

HEARING ASSESSMENT

42. As for the hearing disability, Dr Michael Tong assessed it at 60% of overall hearing, which was equivalent to 20% impairment of the whole person. His view was that the loss of hearing was attributable to the accident. I took into account the Plaintiff's evidence that his hearing was normal before the accident; Mr Yip's evidence supported that account. I was satisfied that it was more likely than not that the Plaintiff's hearing loss was caused by his fall and that it was not attributable to any pre-existing condition as Defendant suggested.

43. I have had various comparable cases referred to me by counsel and have noted them when putting a figure on each injury.

44. I assess the individual injuries as follows:

45. Back injury is assessed at about $300,000.00 being 60% of the lower end of the serious category.

Ho Chi Ming v. Union Life HK Ltd PI No. 1204/96 [1998] 3 HKLJ 440

Liu Ching v. Wong Chiu Kwai PI No. 1192/96 [1998] 3 HKLJ 440

46. Wrist injury is assessed at $100,000.00, being 20% of the lower end of serious. Tsang Chin Keung v. Lo Tat Kong PI No. 806/95 [1997] HKLJ 107

47. Loss of hearing is assessed at $500,000.00 being the top end of serious category. The Plaintiff has lost and will lose familial and social contact and is hampered in his already limited choice of jobs because of his hearing problem.

Yip Wan Chun v. Jim Han Tak & Ors HCA 11640 of 1982

48. Neurological deficit occasioned by post concussion syndrome is not at a level where a separate figure can be assessed reliably, but taken in conjunction with Plaintiff's other injuries brings Plaintiff's cumulative condition into the substantial category. I award $900,000.00 for PSLA.

Loss of Earnings - Pre-trial

49. Plaintiff's pre-accident income was agreed at $570 x 26 = $14,820.00 per month. There was agreement that at the date of trial a steel-binder's daily wage was $1,247.00 - the pre-trial median daily wage would be $908.00.

50. It was submitted that but for the accident the Plaintiff would have continued to work as a steel binder, although given the deterioration in the economy, job availability would be affected for the period since the end of 1997.

51. Having considered the evidence I found that for the period from January 1991 to the end of 1997 (84 months) the Plaintiff was likely to work a full 26 days per month, but because of the economic downturn there would be significantly less work available from the end of 1997. That takes into account the evidence of Mr Yip, who was out of work for 7 months from August of 1998, as a result of the downturn. For the period from the beginning of 1998 to the date of trial (21 months) it would be more realistic to halve the number of days worked per month.

52. Plaintiff's earnings would thus be calculated as follows:

$908 x 26 x 84 + $908 x 13 x 24 = $2,266,368.00

Mitigation of Loss

53. Plaintiff tried to find work after the accident but without success. Only one interview, for a watchman's job, resulted from a Labour Department introduction and he did not get the post. He worked for a few hours as an odd-job worker in a restaurant, but could not manage heavy loads of dishes. Work delivering documents and mail for a courier company lasted half a day. He attended other job interviews without success.

54. In January 1994 he was hired as a part-time relief security guard and managed to work for 14 months. He was paid $240.00 p.d. Plaintiff did not reveal his hearing problem and answered complaints about his not hearing by claiming he was merely inattentive. It is unlikely he would have been hired if the company had known of the hearing problem. Eventually he resigned because he had to be on his feet for 12 hours a day which caused him leg and back pain.

55. Further interviews followed, but Plaintiff did not work again until May 1999, when he found work as a factory watchman. He worked there until August 1999, earning $5,000.00 p.m. Again the reason for his quitting the job was that he had pain in the back and leg.

56. I was satisfied that the Plaintiff had done what he could to mitigate his loss and accepted his account of the difficulties he had in finding suitable employment. The Defendant had not adduced any evidence of availability of suitable jobs which could establish Plaintiff's failure to take reasonable steps to mitigate his loss.

57. Plaintiff's age would not have told against him if he had sought work as a steel binder. His lengthy experience meant an employer would take little heed of his age, as long as he was fit. On the general job market the Plaintiff's age would deter employers. Further, his physical disabilities were only manageable in certain job settings. The most serious disability was Plaintiff's impaired hearing, which, if known or discovered by a prospective employer, would have ensured that he was not hired. Few employers would wittingly hire a caretaker, or security guard or watchman with a hearing deficiency such as Plaintiff's.

58. Plaintiff's pre-trial earnings amount to

$2,266,368.00 - $110,570.00 = $2,155,798.00

FUTURE LOSS OF EARNINGS

59. Plaintiff had lengthy experience as a steel binder and said he had intended to work as long as he was fit enough; how long would depend on his own health and the needs of his children. He envisaged a time when he had fewer family commitments and could work on a part-time basis.

60. Because steel binding is a skilled job done in a team he expected any failing strength would be compensated for by the practice of younger steel binders doing the lifting, allowing an older steel binder to concentrate on the binding. Mr Yip who was of a similar age to Plaintiff, also believed that this was the way in which steel binders could continue working, albeit they might not be as strong and agile as formerly. Clearly there was a high premium on skill in this trade which, with the trade of formwork carpenter, was the highest paid in the construction industry. Plaintiff said he had encountered steel binders in the 60-70 age bracket and that appears to coincide with the views of Mr Yip, although he put the high mark at 60-65 years.

61. The Plaintiff is now aged 60 years. I accept from the evidence that but for this accident the Plaintiff would have continued to work as a steel binder until he was aged 65, albeit he might have chosen to work less frequently as his children became independent. On that basis I accept the multiplier of 4 put forward by the Plaintiff is the correct one to adopt.

62. It is not realistic to apply any notional earning to the Plaintiff in view of his age and the nature of his disabilities. Any suitable work that he might find is likely to be of short duration and/or poorly paid.

63. In assessing future loss of earnings I take into account a likely slow revival of the economy and that with lessening family commitments the Plaintiff would be unlikely to work as frequently even if suitable work was available. According I retain 18 days p.m. as the likely period Plaintiff would work per month.

Future loss of earnings amount to

1247 x 18 x 12 x 4 = $1,077,408.00

Special Damages

64. Special damages were agreed prior to trial as $20,804.00. Agreement was reached that the wife's loss of earnings should be $2,450.00

65. The total amount of special damages is $23,254.00.

SUMMARY

PSLA	$900,000.00
Pre-trial Loss of Earnings	$2,155,798.00
Post-trial Loss of Earnings	$1,077,408.00
Agreed Special Damages	$23,254.00

66. Interest to run at 2% p.a. on PSLA from date of writ to date of judgment.

67. Interest to run at 5.75% p.a. on award for pre-trial loss of earnings, from date of accident to date of judgment.

68. Credit to be given to the Defendant for the E.C. award of $533,497.33, made on 18 March 1996.

69. Costs of the action to the Plaintiff to be taxed if not agreed.

70. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulation.

71. Liberty to apply.