TSANG KWUN CHIU v. YUEN HOI SANG AND ANOTHER

1988 No. A2703

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On the 14th April, 1985, the Plaintiff was struck on his head by a wash-basin. It had fallen from about the 18th floor level of a hoist at Block 1 of what was then the Hong Kong Gardens construction site, where he was employed as a plumber. He sustained serious injuries. He now claims damages from the Defendants. He alleges negligence on the part of the three Defendants; breach of statutory duty against the 3rd Defendant ("the Company") as the contractor responsible for the hoist, and breach of his contract of employment against the 1st Defendant ("Mr. Yuen") and the 2nd Defendant, alleging that one or both of them were his employers and in substance failed to provide for his safety. All three Defendants deny liablity and in the alternative plead that the accident was caused wholly or in part by the Plaintiff's own negligence.

2. It is not in dispute that the Company was the main contractor at the site; and that it subcontracted the plumbing work to the 2nd Defendant which in turn subcontracted it to Mr. Yuen; and that Mr. Yuen was the Plaintiff's employer.

3. The hoist itself was an open metal frame erected in an angle of Block 1, close to its side and running from the ground floor level to the 18th floor. The platform was moved up and down through a rectangular space in the centre. It was operated by an operator at the ground level, within Block 1; he was not able to see the platform once it got above the 1st floor ground level. There were sockets at each level into which a push bell button could be plugged, enabling the unloading workers at that level to signal the operator when to go up, down or to stop. The platform was a bare, unenclosed platform without any boards or fencing on the sides.

4. On the morning of the 14th April 1985 the Plaintiff was a member of a three man gang working at the ground level of Block 1 loading sanitary ware onto the hoist platform to send it up to the 18th floor, Mr. Yuen, too, was there and showed them how the sanitary ware was to be loaded. The first load went up and some 10 minutes or so later, the platform returned. Thereupon Mr. Yuen left and went off to another part of the site.  

5. The Plaintiff and his 2 colleagues loaded the platform saw it off and while it was ascending commenced fetching more items of sanitary ware from a stack close by the entrance to the hoist, where the platform would come to rest. The object was to expedite conveyance of the sanitary ware to the upper floors. When the Plaintiff was struck by a wash-basin he was knocked unconscious and taken to the Princess Margaret Hospital where he did not regain consciousness for 10 days.

6. That is a sufficient outline of the facts to enable me to proceed to the Plaintiff's claims. It is convenient to begin with that against the 2nd Defendant. The Plaintiff no longer pursues this claim. Nor did any evidence against the 2nd Defendant emerge, other than, as I have said, that the company gave to it the plumbing subcontact which it then passed on to Mr. Yuen. I need concern myself no further for the moment with the Clain against the 2nd Defendant.

7. I turn then to the Plaintiff's claim against Mr. Yuen and the Company. The issues largely overlap and so I shall deal with them together. The Plaintiff first of all alleges negligence against Mr. Yuen and the Company.

8. Second the Plaintiff alleges breach of his contract of employment against Mr. Yuen substantially in failure to take care of his safety as an employee.

9. And third against the Company for failing to comply with regulation 38(5) of the Construction Sites Safety Regulations which is in the following terms:

"The contractor responsible for a hoist shall ensure that neither loose material nor goods are carried on the platform of the hoist unless the platform is enclosed or other effective precautions have been taken to prevent the material or goods from falling from the platform."

 

10. There was some suggestion in questions put to the Plaintiff's witness by Mr. Yuen's Counsel, that Mr. Yuen had told his employees that they should take shelter while the lift was above. In the end that was not borne out by the evidence, nor did Mr. Yuen make any such claim. On the contrary the evidence clearly snows that he well knew that while the lift was going up and while awaiting its return the ground level workers moved up the next lot of sanitary ware items to get it into position to load the platform. Moreover they were firmly of the view that he would strongly disapprove if they lost the relatively substantial time involved in not doing so, and I think they had good reason for that view. I am also satisfied that Mr. Yuen knew that they would be in the vicinity of the foot of the hoist in moving up the items.

11. Mr. Yuen testifed that he showed his employees at the ground level how they were to place the first load which then went up. He told them they should load the hoist more or less in the same way. It is not in dispute that the load was neither enclosed or roped or secured in any way.

12. Knowing that his employees would be moving sanitary ware below, that they would be doing so as part of a regime that the encouraged or at least permitted, he was clearly negligent in causing the platform to go up with its load unenclosed and without any fastening or precaution whatsoever against slippage or falling. That he was clearly alive to the danger of the load and other objects falling is clear from his evidence that he took shelter undercover in Block 1, and that the hoist vibrated a great deal and caused bottles, planks, bamboo and debris to fall.

13. Likewise the foregoing constituted a clear breach by Mr. Yuen of his duty to the Plaintiff as his employee to take all reasonable precautions for the safety of the Plaintiff while working at the construction site, not to expose him to risk of injury of which he knew, and to provide and maintain a safe system of work and adequate and suitable plant to enable him to carry out his work.

14. As to the Plaintiff's claim that the Company was in breach of regulation 38(5), it is not in dispute that the Company was the contractor responsible for the hoist by virtue of the Construction Sites Safety Regulations. Clearly on the evidence, the Company failed to ensure that the sanitary ware which manifestly was loose material or goods, was only carried on the platform of the hoist while the platform was enclosed or other effective precautions were taken to prevent the load from falling from the platform. It is plainly no defence to say that the control of the hoist was given to Mr. Yuen or some other subcontractor, or that the subcontractors were advised to rope or other rise secure the loads (particularly when the Company well knew that was rarely if ever done) or that the Company would enclose the platform or provide rope if asked.

15. But the Plaintiff has in addition to show that the negligence or breach of statutory duty was a cause of the injury or damage and this emerged as the major issue in respect of liability. I was referred by Miss Juliana Chow for the 2nd Defendant to Cummings (or McWilliams) v. Sir William Arrol & Co. Ltd. and Another [1962] 1 All E. R. 623, 628H which is clear authority that a causal connection must be established between a breach by an employer of his duty at commom law or under statute and the damage suffered by his employee. Lord Reid at page 631G put it this way:

"If I prove that my breach of duty in no way caused or contributed to the accident, I cannot be liable in damages. And if the accident would have happened in just the same way whether or not I fulfilled my duty, it is obvious that my failure to fulfil my duty cannot have caused or contributed to it."

 

16. That however is not to say that the burden is on the Defendants of disproving the causal connection (see per Viscount Kilmuir Lord Chancellor at page 628H; also see Bonnington Castings Ltd. v. Wardlaw [1956] AC 613).

17. Turning then to the evidence, it most certainly does not establish that even if Regulation 18(5) had peen complied with, the wash-basin would not have fallen and caused the damage as contended by Miss Juliana Chow for Mr. Yuen, and Mr. Thomas Lai for the Company. In the ordinary way the breach of regulation 38(5) and of the employer's duty of care would clearly and without any involved mental processes be recognized as the cause of the damages sustained by the Plaintiff. How then does the fact that the wash-basin was dislodged by an "odd piece of nylon netting" change that? I think not at all as demonstrated by Lord Devlin's analysis at page 633F of Cummings (or McWilliams) v. Sir Willaim Arrol & Co. Ltd. and Another in the circumstances of that case. By analogy, the immediate cause of the Plaintiff's injuries was the dislodging of the wash-basin by the netting, but the effective cause of the Plaintiff's injuries was the Defendant's breach of the relevant duty.

18. In any case I am satisfied on all the evidence that the probability is that the wash-basin fell because of the failure to enclose the platform or to take other effective precautions required. I do not think the fact that it was an "odd bit of netting" that dislodged it undermines that conclusion. Given the nature of the enclosure or other effective precautions required i.e. to prevent the materials or goods carried from falling from the platform, I consider there must be a clear probability that the odd bit of netting would not have dislodged the wash-basin had section 38(5) been enclosed or effective precautions been taken as required. Furthermore, on the evidence, the danger from the netting in question seems not to have been at all exceptional, and the netting itself was not of a particularly substantial sort or of the sort that would have e.g. overcome the tying down of the load with ropes. Moreover there were suggestions that the netting was of a sort that was blown down by the wind and easily torn.

CONTRIBUTORY NEGLIGENCE

19. I turn then to the defence of contributory negligence. As I understood it, this related to the Plaintiff's participation in the loading and sending up of the particular load without an enclosure or other effective precaution against the load falling or slipping. I think the matter falls to be resolved on the question of blameworthiness and that in the particular circumstances no questions of causation fall to be addressed. One looks at what the Plaintiff is accused of. It is precisely what the 3rd Defendant, the Company was required to do by regulation 38(5) of the Construction Site Safety Regulations. The matter of blameworthiness in these circumstances is dealt with in paragraphs 343 to 345 of the 7th Edition of Charlesworth and Percy on Negligence. Other authorities were also referred to me. I do not find it necessary to refer to them or to set them out in extenso. Without reproducing the guidance afforded I will mention only that I must be "careful not to emasculate the protection given by the regulations by a sidewind of apportionment."

20. The relevant factors, as I see them, are these. Not only is the statutory duty placed squarely upon the Company but in addition to doing nothing to discharge that duty, it well knew that the subcontractors and their employers were not enclosing the loads, nor taking effective precautions to prevent loose items falling off. Indeed one of the subcontractors, Mr. Yuen, was able to operate a system of work in which he demonstrated loading without any enclosure or precaution and told his employers they should in effect do likewise.

21. In relation to Mr. Yuen's breach of his duty of care as the Plaintiff's employer, there is the matter of the Plaintiff not having taken shelter while the platform was above him. Most significantly in the way the point emerged at the trial. Mr. Yuen aid not claim that he instructed his employees or the Plaintiff to take shelter, although he stated that he himself did so while the first load was going up. I must say, that I am inclined to doubt the truth of the latter statement. However that may be, it is clear that he was aware that his employees moved up sanitary ware while the hoist platform was above them, to keep up the rate of delivery to the upper floors. I am satisfied on the evidence that Mr. Yuen expected that and would not have tolerated the relatively very substantial drop in the rate of conveyance had the ground level team stopped moving up the next load while awaiting the return of the platform.

22. In these circumstances I do not think that I could be justified in finding contributory negligence of anything more than a nominal amount or contributory negligence of so low a percentage that it would be derisory. In the result I hold that there was no contributory negligence on the part of the Plaintiff.

23. I turn then to the quantum of damage. It is helpful to commence by recording briefly the nature of the Plaintiff's injuries and the disability that flowed from them. As I have already said, the Plaintiff was knocked unconscious. He was taken to Princess Margaret Hospital where he remained unconscious for 10 days. An emergency craniectomy was performed on him and a burr holes operation was carried out for compound depressed fracture of the skull bone that he had sustained. He sustained cerebral lacerations and some loss of brain substance from the right anterior lobe. There was also an injury to his left leg. He sufferer some post traumatic amnesia.

24. On the 9th of May he was transferred to Caritas Medical Centre for convalescence and was discharged on the 3rd April 1985. He received follow-up treatment at regular intervals at Princess Margaret Hospital, and thereafter at the South Kwai Chung Poly Clinic he recieved some physiotherapy. He was granted sick leave until June 1986. In April 1987 he was readmitted to Princess Margaret Hospital for another operation on the brain. He was hospitalized for 4 days, transferred to the Caritas Medical Centre where he stayed for 2 days. That suffices to describe his injuries.

25. He sustained the following disabilities. First of all weakness and a feeling of fatigue in the right leg, resulting in cramp or numbness if he does not stretch or move it frequently, and an inability to squat for long. Also he is only able to climb stairs very slowly. He has persistent feeling of fatigue, of heaviness on the right side of his head, he has impairment of memory, inability to lift heavy weights and to stand vibration e.g. of a drill. He suffers from dizziness.

26. I turn then to address the matter of quantum and the first head of damages I address is the claim for Pain Suffering and loss of Amenities. This issue has resolved itself into a dispute between the parties as to whether it falls within the lowest category of serious injury or the next higher one of substantial injury as propounded by the Court of Appeal in Lee Ting-Lam v. Leung Kam-ming an infant by his next friend Leuny Shu-wing (1980) HKLR 657. I have given careful consideration to the nature of the injuries and the disability. However I do not overlook what Cons Ag. C. J., as he then was, said in Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. (1988) 2 HKLR 650, 653:

"This Court did not by Lee Ting-lam intend to confine damages in a straight jacket. If the sartorial analogy is to be pursued, this Court hoped rather to provide them with what in earlier days would have been referred to as a good foundation garment, a garment upon which all other dresses appropriate for particular occasions would sit comfortably."

 

And at P.654 that:

"The categories were not intended to be mutually exclusive.''

 

27. I accept Miss Lau's submissions that the categories of serious injury and substantial injury are formulated in terms of mobility. Having regard to the guidance of the Court of Appeal in Lau Che ping, it seems to me that the injuries and disabilities, which Dr. Wu testified will not now improve, are severe enough to bring the claim into the bottom end of the higher category i.e. substantial injury. The effects are quite serious in terms of the Plaintiff's employability. I do not think I need enlarge upon that. As to the actual amount, bearing in mind the new levels in Lau Che-ping which for the category of substantial injury was $180,000 to $225,000, and allowing 20% for inflation in the approximately 2 years that have elapsed since that judgment was delivered on 22nd July 1988, I would award $220,000 under this head.

28. I turn next to the loss of earnings and begin first with the pretrial loss of earnings. In my finding the Plaintiff was earning $4,200 per month i.e. on the basis of $154 per day on an averaged 28 working day month, rounded off as Miss Lau was prepared to concede. He was clearly not able to work from the date of the accident i.e. the 14th April 1985 to June 1986 when a doctor suggested that he should try and get work. He did not do so and said he did not feel up to it. Bearing in mind the nature of his disability and the actual psychological effect, which the doctor who advised him to get work may not have appreciated as well as Dr. Wu, I think, taxing all matters into consideration, that it would be reasonable to allow him a further period of 3 months within which to have found work. That brings me to the beginning of 1987. In respect of the earnings that the Plaintiff received from his work at the Hop Loon Grocery store for 1987 and the first and early part of 1988, I accept his evidence and the supporting evidence of his employer which produces a total, in my finding of $19,476 for the year 1987 and that part of 1986 during which he worked at the grocery store; likewise, that thereafter while he worked at the cooked food store that his earnings were $8,250 on the basis contended for by Miss Lau. And finally for the period from mid-November 1988 to 30th June 1990 a total of $48,750, on the basis of a daily rate of $100 at 25 days per month. I will not deal with the calculation of those amounts at this stage, having given the particular figures.

29. I will proceed to the Plaintiff's post trial earnings. In my finding he would currently be earning $360 per day including the travel allowance which his fellow worker Mr. Lee Shuet-ping testified to, and which I see no reason to deduct; it would have been a part of his remuneration. Also on all the evidence I find that he would have worked for 26 days a month.

30. It is agreed that the appropriate multiplier should be 9 years.

31. From the product of those factors must be deducted the amount he would earn during the relevant period. The best evidence of his current rate of earnings would ordinarily be that which he actually earns. I have not had any evidence presented which persuades me that any other basis should be adopted. I therefore accept that amount as the earnings he receives currently and that he may be expected to earn. I decline Mr. Lai's invitation to take a leap in the dark and assess his current earnings at some $5,690 per month as an unskilled labourer or as a watchman or whatever. Certainly 1 doubt whether he would be able to work on a sustained basis as a labourer, if at all.

32. Accordingly I accept as his current earnings the amount of $100 per day that he currently earns and that he works and may be expected to so work for 25 days per month. As I have said, I reject the alternative suggestions.

33. I turn then to the Plaintiff's claim for loss of future earning capacity. Mr. Lai, if I understood him correctly, opposes this entirely on the basis that an award is already being made for the loss of future earnings. Such a submission, in the context of the present circumstances, must be based upon a misconception of the nature of this head of damages. The nature was authoritatively explained by the Privy Council in Chan Wai Tong and Another v Li Ping Sum [1985], 1 AC 446; 460A:

"A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk: see Hoeliker v. A Reyrolle & Co. Ltd. [1977] 1 W. L. R. 132, 140 where Browne L. J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter age the claimant's aye and the nature of his employment."

 

34. The claimant is presently employed as a sort of construction site general help by his younger brother who himself operates as a subcontractor when there is work, and as an employee when there is not. That can hardly be the basis of secure employment, Having regard to the nature of the Plaintiff's disabilities and to his post-injury employment, if he ceases to be employed by his younger brother, a possibility which is not unlikely, then he is likely to go through several periods of unemployment. Clearly he is at a disadvantge in the labour market and, on the medical evidence of Dr. Wu, will continue to be. I would accordingly assess this head of damages at $50,000; neither the $60,000 claimed nor the nominal or nil amount Mr. Lai suggests. Looking at the amount awarded in one way, at the Plaintiff's existing monthly wages at the rate of $2,500, it will provide the Plaintiff with over 50 months of unemployment benefit. Viewed in that way, it seems not unfair or inappropriate.

35. I come finally to the special damages. The medical expenses of $2,165 are agreed. Travelling expenses claimed are $3,509. Of this $1,509 is agreed being the travelling expenses of the Plaintiff but the $2,000 of the Plaintiff's brother are disputed. I must say that that amount does seem to me to be a bit high. Although a taxi might sometimes have been justified, perhaps when liquid nourishment was being conveyed, I do not think that $2,000 would be justified and I reduce this without saying more to $1,200.

36. The next item is the loss of wages for the elder brother of $14,000. Indeed more might have been claimed at the rates at which he was remunerated in Xian. But properly viewed this is really a claim by the Plaintiff and must, I think, reflect the value of the service or care he needed. I find it impossible to accept that he needed the constant attention of his brother for over two months. I think it reasonable to accept, given his critical condition to start with, that he would have needed the attendance of a near relative for the period he was in a coma, which I will take as about 1 week, and perhaps a week after that. But beyond that, it must be borne in mind, that he was to begin with under full-time medical care in a hospital and has not demonstrated the need for further full-time care. In the circumstances, I think I am perhaps not being ungenerous, particularly in relation to the second week, in allowing him his wages for two weeks. 1 do that on the basis of the wages he was earning in Xian which I take at $240 per day for 14 days and assess at $3,360.

37. I will proceed to the nourishing food. This is agreed at $3,200, and other losses and expenses, being the walking aid and special shoes, are agreed at $440.

38. Finally the Plaintiff has to give credit for the sum of $260,211 received as employee's compensation. There will be judgment accordingly. It remains for me only to deal with the Notice of Contribution served by the 3rd Defendant. Now the material criteria is that the contribution should be ordered where it is just and equitable. I will first deal with the application for contribution by the 2nd Defendant. The Plaintiff's claim against the 2nd Defendant was not pursued, in effect it was abandoned. In those circumstances it was not possible to examine that claim or to assess it, nor was evidence led upon it. I therefore cannot see how it can be right for me to make an order for contribution and I feel bound to decline to do so. I do not say that the 3rd Defendant is not entitled to an order, simply that I am not at this point able to make an order. If it is possible for the 3rd Defendant to pursue this matter in some other way, so be it.

39. I proceed to what remains, which is the claim for contribution against the 1st Defendant, Mr. Yuen. Now I have found it a matter of considerable difficulty to apportion causation and blameworthiness which I think would be the bases upon which I would be able to determine what was just and equitable. I am not sure what other basis I could use. If one looks at the entire matter, it seems to have originated in the breach by the 3rd Defendant of its very clear duty to have enclosed the platform or otherwise ensured that adequate precautions were taken. It may be thought that if that had been done none of the matters I have been dealing with would have arisen. Perhaps that is a simplistic way of viewing it. On the other hand Mr. Lai suggests that the 1st Defendant, Mr. Yuen is liable in his neglect and breach of his duty of safety to his employee and that in addition to that he is also liable in his breach of common duty of care, that the former alone could be equated with the 3rd Defendant's duty of statutory care.

40. I confess that I do not see it that way. As I say, I am unable to say that the 1st Defendant is to blame in any greater degree notwithstanding that he had control of the loading. I bear in mind also that the 3rd Defendant knew exactly what was going on. In all the circumstances the best I can do, and what I think would be just and equitable, is to ensure that if the 3rd Defendant, the Company, in some manner pays more than 50% of the damages, that there is a contribution to it in respect of the excess so that a 50/50 apportionment of the damages would be achieved. There will be judgment accordingly. I will now hear Counsel upon the accuracy of the calculations I have made and upon interest and costs.

(Short adjournment followed by submissions on interest and costs)

41. There will be judgment to the Plaintiff in the sum of $1,111,817.00 (i.e. net of the deduction of $260,211.00 Employee's Compensation already paid) together with interest at the rate of 5% per annum on the special damages from the date of the accident (14th February, 1985) to the date of this judgment (29th June, 1990) subject to the agreed deduction of $25,914.16 being interest at 5% per annum on the $260,211.00 employee's compensation from 30th June, 1988, to the date of judgment; and interest on general damages at the rate of 2% per annum from the date of service of the writ to judgment.

42. Costs to the Plaintiff to be taxed if not agreed and to be apportioned equally between the 1st Defendant and the 3rd Defendant. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.