KO KAM WAI v. SZE HAK FUNG t/a CHUNG FUNG CO AND ANOTHER

HCPI 292/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 292 OF 2005

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J U D G M E N T

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The accident

1.  The plaintiff, now aged 45, was a master interior decoration worker.  He had over 20 years’ experience in the trade when the accident that this action is concerned with took place on 30 March 2002.  He specialised in internal partition and false ceiling work.  The accident happened whilst the plaintiff was renovating a boutique shop in the shopping mall of Taikoo Shing Phase II.  The renovation job belonged to the 2^nd defendant as principal contractor, and the plaintiff’s own employer, the 1^st defendant, was a partition/ceiling work sub-contractor at the site.  The plaintiff was injured while he was moving or trying to move a pile of plasterboards stacked on the site.  The pile of boards toppled over the plaintiff onto the floor.  The plaintiff was injured at the back and left knee.

2.  In this action, the plaintiff sues his former employer for breach of contractual and tortious employer’s duty, breach of statutory duties under the Construction Sites (Safety) Regulations (Cap. 59I) and the Occupational Safety and Health Ordinance (Cap. 509), as well as occupiers liability.  He also sues the principal contractor, the 2^nd defendant, for negligence, breach of statutory duties as well as occupiers liability.

3.  The 2^nd defendant, a limited company, was throughout represented by lawyers until shortly before trial, when its solicitors ceased to act.  The 2^nd defendant has not instructed a new firm of solicitors to represent it, nor has it applied to the Registrar for leave to act in person.  No representative of the 2^nd defendant turned up at trial.  The trial thus proceeded in the absence of the 2^nd defendant, not only in respect of the plaintiff’s claims against the two defendants, but also in respect of the 1^st defendant’s contribution proceedings against the 2^nd defendant.

4.  According to the evidence, the 1^st defendant was a sub-contractor with a small-scale operation.  Only he and the plaintiff worked at the site in Taikoo Shing.  He had two other projects at hand at the time, also involving the plaintiff.  About a week before the accident, the plaintiff and the 1^st defendant had already done some work at the site for 2 days.  Amongst other things, plasterboards had been delivered to site by the 1^st defendant’s supplier for the purposes of erecting partitions and installing false ceilings.  The plasterboards, rectangular in shape, measured 8 feet x 4 feet.  Each weighed about 60 pounds.  They came in pairs by way of packing.  There were sealing tapes binding each pair of plasterboards at the shorter edges.  The purpose was to keep the inner surfaces of the pair of boards intact and free from accidental scratching or damage.  When they were first delivered on site, the boards were piled flat on the floor of the shop.  By the time the plaintiff and the 1^st defendant finished the first stage of the sub-contract work which lasted only two days, ten odd pieces of boards had been used.  They then left the site to enable other sub-contractors to carry out their works.  As the 1^st defendant had another project in Kowloon, he and the plaintiff worked on the other side of the harbour during the intervening week before resumption of work at the Taikoo Shing site on 30 March 2002, the date of accident.

5.  On that day, the plaintiff alone returned to the site for work.  The 1^st defendant was still busy completing some work at the Kowloon site.  He sent the plaintiff back to the Taikoo Shing site to resume work first, intending to join him, according to the 1^st defendant’s evidence, later on that day.

6.  It is common ground that when the plaintiff returned to the Taikoo Shing site, he found that the remaining plasterboards that had previously been left stacking flat on the floor had already been moved to enable tiling work to be done.  When the plaintiff returned to site, the tiling work had already been completed.  Furthermore and this is not in dispute, he found that the remaining plasterboards had been piled and were standing long side up at the site.

7.  According to the plaintiff’s evidence, the pile of about 18 pieces of plasterboards was leaning against a glass wall within the shop.  On the other hand, according to the evidence of a carpenter (Mr Cheng) employed by another sub-contractor who was also working at the site, the pile of plasterboards were resting partly against a strip of glass frame at one side and partly against a wooden framework at the other side.

8.  Anyway, according to the plaintiff, the plasterboards were leaning against their support (using a neutral description), long side up, in an almost vertical manner.  The distance between the foot of the innermost plasterboard in the pile and the foot of the support against which the boards were leaning was only about 5 inches.  In other words, the gradient of the boards was about 87 degrees.

9.  According to the plaintiff’s evidence, when he returned to site, the foreman employed by the 2^nd defendant, the principal contractor, to supervise and co-ordinate works at site, instructed him to move the pile of plasterboards elsewhere, as the boards were obstructing work to be carried out to the glass wall.  Pausing here, it is common ground that the 1^st defendant had previously instructed the plaintiff to follow the instructions of the foreman of the principal contractor whilst working at the site.

10.  That being the case, according to the plaintiff, he therefore started moving the boards elsewhere.  As the boards were taped in pairs as already mentioned, the plaintiff said he first used a ladder to climb up to the top of the pile and removed the sealing tape that had been placed on the upper edges of the outermost pair of boards.  After doing that, he squatted down by one side of the outermost pair of boards, used his hand to lift up slightly that side of the pair of boards, and removed as much as possible the sealing tape that had been placed on that side of the bottom edges of the outermost pair of boards. He repeated the exercise at the other side of the outermost pair of boards, thereby removing completely the sealing tape that had been placed at the bottom edges of the outermost pair of boards.

11.  According to the plaintiff, having thus successfully removed the sealing tapes at the top and bottom edges of the outermost pair of boards, he grabbed the outermost piece of plasterboard with both hands and moved it elsewhere.

12.  He explained that given the weight of the boards, he could not move the boards in pairs and had to remove the sealing tapes in the way described so as to be able to move them one by one.

13.  According to the plaintiff, the accident happened whilst he was trying to move the second piece of board in the pile.  He said that as he was doing so, the whole pile of boards overturned suddenly and fell on him.  He was injured as a result.

14.  The carpenter (Mr Cheng) who eye-witnessed the accident from the top of a ladder at about 8 to 9 feet away from the pile of boards said in evidence that he did not see the plaintiff using a ladder near the pile of boards immediately before the accident.  Nor did he see the plaintiff moving any board away from the pile before the accident occurred.  He said that what he saw was that the plaintiff walked to the front of the pile and held the outermost board or boards by the sides with both hands, with the obvious intention of moving the board(s).  Apparently, he had difficulty in moving the board(s), and he started ‘swinging’ the board(s) sideways as well as up and down, with the apparent intention to loosen, as it were, the outermost board(s) that he was holding from the rest of the pile.  Mr Cheng said that the plaintiff ‘swung’ the board(s) with force.  All this happened within several seconds before the whole pile of boards overturned and collapsed, face down, onto the plaintiff who tried to escape from the falling boards but failed.

15.  Mr Cheng said in evidence that the collapsing boards hit the ladder that he was standing on and he had to jump from the ladder onto the ground.  In doing so, both he and the ladder bumped against a partition on the other side of the shop.

16.  Anyway, he and other workers (in the employ of some other sub-contractors) all rushed to remove the fallen boards that were on top of the plaintiff’s body, trapping him.  As they were removing the fallen boards that were trapping the plaintiff, they noticed that there was a piece of brown kraft tape amongst the boards.  One end of the kraft tape was attached to the first plasterboard (i.e. the outermost plasterboard which was directly on top of the plaintiff’s body), and the other end was not attached to anything.  The side of the plasterboard on which the tape was attached was the topside of the outermost plasterboard before it collapsed with the rest of the pile of boards.

17.  According to the carpenter’s surmise, someone had placed the tape at the top part of the outermost board at one end, and on and over the upper edges of the pile of boards at the other end prior to the pile’s collapse, so as to bind the boards together and prevent them from falling over.  However, so Mr Cheng inferred, the ‘swinging’ actions of the plaintiff, which were done forcefully, caused the whole pile of boards, which were standing on their own weight and were kind of held together by the kraft tape in the manner described, to fall over him.

Liability

18.  During evidence as well as final submission, much effort and time was expended on debating about whose version of how the accident actually happened was the correct one:  Did the plaintiff really climb up a ladder to remove the sealing tape on the top edges of the outermost pair of boards?  Had he really moved the first board away and was he trying to move the second board when the whole pile collapsed on him?  Or had he really ‘swung’ the board(s) with force which caused the collapse of the pile?  Were the boards really taped together by the brown kraft tape, as was the deduction of the carpenter?

19.  On mature reflection, whilst I will in due course resolve the factual disputes and make appropriate findings, I think all this had the unintended effect of clouding the more important issue in the present case, namely whether the boards, piled long side up against their support, whether it be the glass wall or the strip of glass panel plus the wooden framework, were properly and safely stacked at site.  In my judgment, Ms Alice Tsang, counsel for the plaintiff, got it right when she emphasised during final submission that the boards were improperly and insecurely stacked.  She focused her argument on the almost vertical manner in which the boards were stacked.  In this regard, she stressed on the plaintiff’s unchallenged evidence that the distance between the foot of the innermost plasterboard in the pile and the foot of support was a mere 5 inches.  The angle of elevation was, as described, about 87 degrees.  The boards were standing on their own weight almost vertically.  There was nothing to secure the pile nor was there any anchorage.  The pile comprised 18 pieces of board.  They weighed over 1,000 pounds.  The boards were liable to overturn at the slightest disturbance.

20.  Even if one were to accept the carpenter’s version, which was put forward by the 1^st defendant in the context of a plea of contributory negligence, the boards were only restrained at the top edges by a brown kraft tape.  Needless to say, the kraft tape was wholly insufficient in strength in restraining the boards from collapsing.  At most, and there was indeed no evidence, the tape could reduce the risk of one or two pieces of boards toppling over.  But the other side of the same coin is that, on the assumption that the kraft tape had the effect of holding the boards together to a certain extent, when the outermost boards should topple, the tape would easily cause the rest of the pile to fall over as well.  And of course in the present accident, the whole pile of boards toppled over and fell on top of the plaintiff.

21.  The plaintiff’s evidence about the distance between the foot of the innermost plasterboard in the pile and the foot of the support was not challenged during cross-examination.  Nor was any evidence led from the carpenter who eye-witnessed the accident regarding the gradient of the pile.  Despite the criticisms made below relating to the credibility of the plaintiff’s evidence, having considered the entirety of the evidence, I have no hesitation in accepting this aspect of his evidence.  In other words, I accept and find that the pile of boards had been stacked against its support in an almost vertical manner.  There was nothing to restrain the pile, apart from the kraft tape (see below).

22.  This, in my judgment, essentially decides the case on liability, subject to the question of contributory negligence to be dealt with below.  For it is in my view quite wrong to have allowed the pile of boards to be improperly and insecurely stacked, long side up, in such a manner.  The plasterboards were liable to overturn at the slightest disturbance.  It is plain that the manner in which the plasterboards were stacked was a material cause of their collapse.

23.  The 1^st defendant as employer owed to the plaintiff a non-delegable duty of care in respect of the plaintiff’s safety at work.  That duty comprised, amongst other things, an obligation to provide and maintain a safe place of work as well as a safe system of work.  Cathay Pacific Airways Ltd v. Wong Sau Lai [2006] 2 HKLRD 586.  I do not consider the site a safe place of work in that the plasterboards, which actually belonged to the 1^st defendant, were not properly and securely stacked on site.  The system of work was also unsafe in that materials yet to be used and therefore stored on site were not properly and securely stored or stacked and that notwithstanding, the workman was instructed, albeit through the foreman of the principal contractor, to handle those materials. The fact that the instructions came from a foreman in the employ of the principal contractor does not make any difference because it is common ground that the 1^st defendant had asked the plaintiff to follow the instructions of the foreman on site.

24.  As regards the 2^nd defendant, as principal contractor responsible for the site, by allowing the plasterboards to be insecurely and improperly stored/stacked on site, it breached regulation 52(2) of the Construction Sites (Safety) Regulations, which by its then wording required the contractor responsible for any construction site where materials were being kept or stored to ensure that they were not insecurely stacked in a place where they might be dangerous to workmen employed at the site.  Furthermore, by instructing the plaintiff to move the improperly and insecurely stacked boards through its foreman, the 2^nd defendant was negligent towards the plaintiff and, in my judgment, was also acting in breach of its common duty of care as occupier of the site.

25.  I regard all this as trite, requiring no further elaboration.

Contributory negligence

26.  Turning to contributory negligence, it is necessary to resolve the factual disputes between the plaintiff and the carpenter regarding how the accident actually happened.

27.  Having considered the entire evidence, including of course the oral evidence, I accept the carpenter’s version.  I was much impressed by the demeanour of Mr Cheng, the carpenter.  He was straightforward, sincere and (so far as possible) accurate.  He was careful in answering questions – ‘careful’ in the sense that he was obviously trying his best to assist the Court and state the facts as accurately as he could.  Despite the very vigorous cross-examination that he had undergone, his evidence remained unshaken.  He was an independent witness, although he readily admitted that he had known the 1^st defendant through work over the years for more than 10 years.  It should be remembered that the 1^st defendant and the carpenter did not work in the same trade and there was no evidence nor suggestion that the carpenter had any financial or other interests in the outcome of this litigation.

28.  Mr Cheng stood at the top of a ladder at the time of accident and was in a good position to observe what was happening.  No doubt he was on the ladder to carry out work of his own (some drilling work), but he explained convincingly that due to previous accidents at work, he was particularly watchful whilst he was working at height regarding works that were being done in his immediate vicinity.  He explained that as he was working at height, he was particularly vulnerable to the carelessness of others.  For instance, with reference to moving long objects like plasterboards, Mr Cheng explained that if the workman carrying the board did not pay attention, its long ends could easily hit his ladder, causing him to fall from height.

29.  Mr Cheng explained that that was why he had been paying attention to the action of the plaintiff immediately before the accident.  He realised, almost from instinct, what the plaintiff was trying to do – i.e. to move the boards.  He observed the rather peculiar movements of the plaintiff, i.e. ‘swinging’ the board(s) sideways and up and down.

30.  In my judgment, he had good reasons to remember what had happened, particularly bearing in mind that the falling boards actually hit his ladder causing him to jump and hit against a structure at the other end of the site.

31.  I further accept his evidence that while he and other workers were removing the boards to free the plaintiff, he saw the tape with one end attached to the front of the outermost board.  I accept that he therefore drew the inference that the pile of boards had been held together by the kraft tape at their top edges.  He therefore solved the mystery – subjectively in his own mind – as to why the plaintiff needed to ‘swing’ the outermost board(s) with force.

32.  I have not forgotten that the 1^st defendant, who only arrived the site sometime after the accident and when the plaintiff had already been sent to hospital, said that when he was examining the fallen boards, he found several pieces of kraft tape amongst the boards.  Having considered the evidence of Mr Cheng and the 1^st defendant, I do not find the two versions regarding the kraft tape to be irreconcilable.  Put shortly, Mr Cheng’s version does not exclude the possibility of there having been other pieces of kraft tape that had been used to tape the heavy boards together.  Nor does it exclude the possibility of the piece of kraft tape seen by Mr Cheng to have been broken into several pieces during the process of removing the boards in the rescue of the plaintiff.  In any event, I have not overlooked this discrepancy and have given this fact its due weight in my deliberation of the entire evidence.

33.  On this aspect of the case, I do not accept the plaintiff’s assertion.  In terms of demeanour, the plaintiff’s performance in the box was less impressive than Mr Cheng’s.  Furthermore, as Ms Corinne Remedios, counsel for the 1^st defendant, has convincingly pointed out during final submission, the plaintiff has been shown to be less than candid in many areas, such as the filing of tax returns, the reluctance to make discovery of his tax returns, the ‘positive inorganic signs’ that were observed by the doctors in a joint examination (see below) – a polite medical way of saying he feigned pain when a certain test designed to elicit malingering was administered (Waddell’s test) during the joint examination, and his demeanour and claim in the witness box as to upper back, leg, shoulder, arm and head pain, despite that he only suffered contusion injuries to his left knee and low back during the accident.

34.  Having considered the entire evidence, as I said, I prefer the eyewitness account of Mr Cheng to the version given by the plaintiff regarding how the accident happened.

35.  Lest there should be any misunderstanding, I make this finding – not believing the plaintiff’s version in this aspect, without losing sight at all of my other finding regarding how the pile of boards had been stacked (i.e. in an almost vertical manner) – thus accepting the plaintiff’s evidence in that particular aspect, and vice versa.  In other words, in making those two findings, one accepting and the other rejecting the plaintiff’s evidence, I have borne each other firmly in mind.  And in making each finding, I have borne the entire evidence in mind.  I think it is trite that the fact that a witness has been untruthful in respect of one aspect of his evidence does not necessarily mean that all other answers of his given in relation to other aspects of the case must also have been untruthful or were lies.  No doubt any untruthful answer or lie would affect a witness’ credibility in general.  But at the end of the day, each material dispute of fact must be decided by the application of the appropriate burden and standard of proof on the entire evidence.

36.  As I said, based on the entire evidence, I have come to those two particular findings.

37.  Returning to Mr Cheng’s version that I accept, not only do I accept Mr Cheng’s evidence on how the accident actually happened, I also accept and find that he did find the kraft tape as he has described in Court whilst removing the fallen boards.  Furthermore, I accept his deduction and find that prior to the collapse, the tape had been placed on the upper end of the first board and across the top edges of the pile of boards so as to stick them together.

38.  In fact, with or without Mr Cheng’s own deduction, the Court also comes to the same conclusion and draws the same inference.

39.  In my view, the deduction/inference was a very natural one to draw, which was consistent with the known facts.  In particular, one can easily understand, though not necessarily agree with, why somebody would have wanted to place the tape (or more than one tape) across the upper edges of the boards, having stacked them against their support in an almost vertical manner.  The deduction/inference could also explain the rather strange motions of the plaintiff, i.e. his ‘swinging’ the boards sideways as well as up and down.  Quite plainly, he was seeking to loosen the board(s) from whatever that was/were holding it/them to the rest of the pile.

40.  This brings me conveniently to the question of whether the plaintiff was aware of the presence of the kraft tape.  On the entire evidence before me, I conclude and find that the answer is in the negative.  For one, Mr Cheng said that whilst he could not tell from what he observed whether the plaintiff was aware of the presence of the kraft tape when he ‘swung’ the board(s), he also said that at the position of the plaintiff, it would not be easy to discover the presence of the kraft tape which was placed at the upper part of the outermost board and across the upper edges of the pile of boards.  Mr Cheng said that the plaintiff had not used a ladder to climb up to the top of the pile of boards.  Moreover, according to what he saw, the plaintiff simply walked straight to the front of the pile with the intention to move the boards elsewhere.  He then ‘swung’ the board(s) with force as he encountered difficulties in moving it/them.  The pile then collapsed onto him.  All this took place within a few seconds.  Given that description and that sort of timeframe, the likelihood is that the plaintiff did not notice the presence of the kraft tape or realise what was hindering his moving job.

41.  Furthermore, as a matter of common sense, if the plaintiff had been aware of the presence of the kraft tape, the easiest thing for him to do would have been to climb up to the top of the boards and remove or cut loose the kraft tape.  All he needed to do was to fetch a ladder or chair and maybe a pair of scissors or cutter.  It would not have taken more than half a minute.  Why should he have preferred to use force (– much force – according to Mr Cheng’s evidence) to ‘swing’ the heavy board or boards?  What he actually did was potentially dangerous and foolish – if he had been aware of the presence of the kraft tape.

42.  As I said, having considered the entire evidence, I have come to the conclusion that the plaintiff was not aware of the presence of the kraft tape.  More likely than not, out of natural instinct, when he tried to move the outermost board and experienced difficulty, he ‘swung’ the board to loosen it from whatever that was holding it back, without realising that what he did, in the circumstances, was highly dangerous, particularly given the presence of the kraft tape which sort of bound the boards together so that if one should fall over the rest would likely follow suit.

43.  I say all this and make all these findings despite the plaintiff’s evidence to the contrary in this regard.  For reasons of his own, the plaintiff chose not to reveal the entire truth as to how the accident happened to the Court but instead decided to proceed on a version which apparently he thought would be more advantageous to him.  As I said, having considered the entire evidence, I do not accept what he said.

44.  This brings me conveniently to a pleading point, which has proven to be an academic one given my findings. Put shortly, the pleading concern that I raised with counsel during final submission was whether the plaintiff could seek to pin the defendants on liability according to a version of accident that had not been pleaded by the plaintiff himself, but by the 1^st defendant in the context of contributory negligence.  A similar question has arisen in the case of Poon Hau Kei v. Hsin Chong Construction Co. Ltd (2004) 7 HKCFAR 148, which went all the way up to the Court of Final Appeal.

45.  Having heard counsel’s helpful submissions and reflected further on the matter, I do not think such a pleading difficulty arose in the present case.  First, on my reading of the plaintiff’s statement of claim, his case has been pleaded in such a way that it sufficiently encompasses the findings made by this Court.  As Ms Tsang has correctly pointed out during final submission, the factual dispute involved here only goes to details of the accident’s happening.  The broad outlines of the plaintiff’s case have remained the same, i.e. the pile of boards collapsed when he tried to move them.  The only disputes were whether he had swung the board(s) before their collapse, and whether the boards had been taped together and if so by what.  All this goes to details of the accident’s happening.  Unlike the facts in Poon, the plaintiff here is not seeking to capitalise on a version of accident that is wholly different from the version that he put forward in his pleadings and at trial.  In my view, our facts are quite far removed from the rather controversial situation faced by the courts in Poon Hau Kei.

46.  Moreover, it is important to bear in mind what I said at the outset, namely the liabilities of the defendants in the present case do not really turn on the precise manner in which the plaintiff sought to move the boards or the presence or absence of the kraft tape.  They turn primarily on the improper and insecure manner in which the boards had been stacked in the first place.  The manner of moving the boards, the presence or absence of the kraft tape, the knowledge or ignorance of the plaintiff of the presence of the kraft tape – all this only goes to the issue of contributory negligence.  Indeed, the 1^st defendant’s version (i.e. Mr Cheng’s version) of how the plaintiff tried to move the boards was only pleaded in the context of contributory negligence.  And in my view, rightly so.

47.  For the sake of completeness, I should also point out that the plaintiff’s knowledge or ignorance of the presence of the kraft tape has not been specifically pleaded by the 1^st defendant.  But in my judgment, it was implicit in the 1^st defendant’s plea that the plaintiff knew or ought to have been aware of the presence of the kraft tape.  Without such an implicit assertion, the plea of contributory negligence simply could not stand.  That being the case, the issue has been squarely placed before the Court and the Court is quite entitled to make a finding on it based on the entire evidence that has been adduced.  As I said, I have found that the plaintiff was ignorant of the presence of the kraft tape.

48.  In short, I do not think any pleading difficulties are present in this case.  Speaking at a more general level, the Court should decide the case according to the true facts and substantive merits, provided that this can be achieved without unfairness, undue prejudice or surprise to any of the parties.  I do not find any such vitiating elements here.  The absence of the 2^nd defendant at trial does not alter my view of the position.

49.  I now move on to deal with the issue of contributory negligence based on the facts as I have found them.  On the findings made by me, particularly my finding that the plaintiff was ignorant of the presence of the kraft tape, I reject the 1^st defendant’s argument that the plaintiff ought not to have moved the boards without first removing the kraft tape and he ought not to have ‘swung’ the board(s).  As I have already indicated, given his ignorance of the presence of the kraft tape, what the plaintiff did was understandable.  With the benefit of hindsight, he could have paused and carefully inspected the boards to find out what was hindering his attempt to move the outermost board before he did anything.  But that would only be hindsight.  On the circumstances as a whole, I do not think what he did could be regarded as contributory negligence, particularly when momentary carelessness on the part of a workman should generally not be regarded as contributory negligence in the context of work-related accidents:  General Cleaning Contractors Ltd v. Christmas [1953] AC 180.  This is especially so when a breach of statutory duty is involved (at least vis-à-vis the 2^nd defendant):  Li Man Yuen v. Li Chung I [1991] 2 HKC 230.

50.  As regards the suggestion that the plaintiff ought to have asked for assistance from those also working on site, I also reject it as a basis for saying that the plaintiff was contributorily negligent.  First, the plaintiff was instructed by the foreman to move the boards.  For all practical purposes, the foreman was equivalent to the plaintiff’s employer on site. The foreman asked him and no one else to move the boards.  He duly complied with the instructions and tried to move the boards by himself.  When he encountered difficulties, he did what was natural to him, i.e. ‘swinging’ the board(s) to see if he could free the same from the rest of the pile.  Before he could do anything else or summon help, the pile collapsed.  Indeed according to Mr Cheng’s version, this happened on the plaintiff’s first attempt to move the boards.  Under that version which I accept, there was simply no opportunity for the plaintiff to summon help.  To suggest that the plaintiff ought to have asked someone on site, who was not in the employ of his own employer, to help him hold the boards whilst he was moving them is, in my judgment, quite unrealistic in the context of the works that the plaintiff and the other workmen were involved in at the site.  As for the 1^st defendant, he was still working at the Kowloon site at the time.  I do not accept that the plaintiff can be criticised as being contributorily negligent in not waiting for his employer to arrive before starting to move the boards.  To suggest otherwise is simply hindsight.

51.  The fact that under Mr Cheng’s version (which I accept), the boards were leaning partially against a strip of glass panel and partially against a wooden framework does not reflect well on the standard of supervision on site.  It reinforces my finding that the boards had been improperly and insecurely stacked in a dangerously vertical manner.  Whoever did the stacking did not, in my view, have safety in the forefront of his mind.  Moreover, supervision of safety on site, which was no doubt the responsibility of the 2^nd defendant through its foreman, was below standard.  One only needs to look at the sketch drawn by Mr Cheng depicting how the pile of boards had been placed against the glass panel and wooden framework (i.e. exhibit ‘D1’) to realise how improperly and insecurely the boards had been stacked.  In my judgment, to say that the plaintiff ought to have realised the dangerous state in which the boards had been stacked and taken greater care in respect of his own safety when attempting to move the boards turns matters upside down.  It was, in my view, the duty of the principal contractor as well as the direct employer of the plaintiff to ensure the safety of the plaintiff at work.  A safe place of work had to be provided and maintained, and a safe system of stacking and moving not-yet-used materials had to be provided and put in use.  Proper supervision had to be provided.  To ignore all this and simply leave it to the workers to look out for their own safety do not, in my judgment, reflect the standard required by law.

52.  I have fully borne in mind the experience of the plaintiff as a master decoration worker.  I do not think that factor, whether alone or considered together with the rest of the evidence, is sufficient to support a finding that the plaintiff was contributorily negligent in the present accident, on the facts as found by me.

53.  All in all, I reject the plea of contributory negligence.

Apportionment of liability between the defendants

54.  As regards apportionment of liability between the two defendants, I bear in mind that the 1^st defendant as employer had a non-delegable duty in respect of the plaintiff’s safety at work.  On the other hand, the 2^nd defendant was the principal contractor responsible for the site.  It had a foreman at site with full authority to coordinate and supervise works there and give instructions to the workmen of the sub-contractors.  The pile of boards had been stacked in the way that the plaintiff found them when he returned to the site to work on the day of accident after a short period of suspension.  They were not stacked by the 1^st defendant but apparently by someone working on site – who was or ought to be under the supervision of the 2^nd defendant’s foreman.  The 2^nd defendant through its foreman had had every opportunity to rectify the situation before instructing the plaintiff to handle the boards.  Nothing was done.  Instead, the plaintiff was asked to move the boards.  No assistance was supplied.  Apparently, no safety check was done before the plaintiff was asked to move the boards.  The plaintiff was not told about the presence of the kraft tape.  He was literally asked to walk into a trap.

55.  Bearing all relevant considerations – including causation and blameworthiness – in mind, I have come to the view that the 2^nd defendant should bear a greater responsibility for the accident.  As between the 1^st and 2^nd defendants, I apportion liability at the ratio of 25% and 75% respectively.

Findings on the plaintiff’s condition

56.  The plaintiff was born on 29 November 1959.  He suffered contusion injuries to his back and left knee in the accident.  There was no neurological deficit at the back and there was no fracture of bones.  A MRI done in April 2003 showed left knee medial meniscal injury as well as a haemangioma over the lumbar region of his back which was not related to his injury.

57.  The treating doctors advised the plaintiff to undergo operative intervention to treat his knee problem, but he declined and preferred to be treated conservatively with a brace.  He said in Court that the doctors could not promise him that after surgery, his knee would recover to 80% of its pre-accident condition.  The doctors also told him that his post-operation condition might even be worse than before.  He therefore declined the suggestion.

58.  According to a joint medical report written by Dr Lau Hoi Kuen and Dr Lam Kwong Chin, orthopaedic experts retained by the plaintiff and the defendants respectively, the experts agreed with the diagnosis of left knee medial meniscal injury.  As regards surgical intervention, this is what they wrote in their report dated 2 February 2005:

“(7) We agree entirely with the Orthopaedics colleagues of PYNEH that operative intervention should help to improve the condition of Mr. Ko’s left knee.  The operation should be arthroscopic partial meniscectomy of the medial meniscus.  Good result can be expected in about 90% of the cases and the risk of complication should be quite low.

(8) On the other hand, Dr. Lau considers it completely reasonable for Mr. Ko to have declined the operative treatment.  It has been many patients’ concern about the risks of operative treatment and also because good result after surgery cannot be guaranteed.  Consideration has been made for the fact that he is not a trained person in western medicine.  He has no knowledge of what can be achieved with operative intervention to his left knee.  He should not be blamed for his decision of preferring not to have operative treatment.

(9) Dr. Lam points out that for a person with a chronic disability which had prevented him to return to work for over 2 years, if there is a treatment method which could offer such a high successful rate, it would be irrational to refuse.  Mr Ko’s decision was made at the expense of others’ loss, and he should bear part of the responsibility for the present disability.”

59.  As regards the plaintiff’s condition as found during the examination and the prognosis of his condition, the two doctors had the following comments:

“Present findings

(10) Both doctors agree that Mr. Ko was observed at this joint examination to have positive inorganic signs for his back pain.  Mr. Ko complained of severe increase in his back pain with pressure on the vertex of the skull as well as rotation of his trunk in one piece.

(11) We agree that the above finding suggests the possibility of functional(?) basis for Mr. Ko’s complaints.  Dr. Lau further opines that this type of exaggerated response at the joint examination can often be seen in patients suffering from chronic pain.

(12) Dr. Lam opines that the condition of Mr. Ko’s low back injury should have much improved.  This is evidenced by the lack of muscle spasm over his low back, as well as the preservation of the lordotic curvature of his lumbar spine.

Further treatment & prognosis

(13) We agree that Mr. Ko’s back injury has reached the stage of maximal medical improvement.

(14) Since he has decided not to have operative treatment for his left knee meniscal injury, his left knee injury can also be considered as having reached the stage of maximal medical improvement.  No further treatment, apart from taking analgesic for his pain, is indicated.

…

Working capacity & Sick Leave

(20) In working as a decoration worker dealing with installation of partition and ceiling, Mr. Ko had to climb ladders and scaffolds frequently.  He also had to squat for long periods of time.  Because of the persistent pain in his back and the damaged medial meniscus of his left knee, he also needs to avoid carrying heavy manual lifting.  Dr. Lau opines that Mr. Ko cannot resume his pre-injury job as decoration worker.  He may work as a light cleansing worker, watchman, waiter or shop assistant in dealing with lighter goods.

(21) Dr. Lam opines that the knee pain and back pain would cause some inconvenience at work, but they are not severe enough to prevent him from working as a decorator.  There should be no difficulty with climbing of ladders, while the requirement to squat could be tackled by placing the painful leg forward during squatting.  For a partition worker, the lifting weight should not be too strenuous.  Dr. Lam opines that Mr. Ko should be able to return to work, but with a diminish in working efficiency and tolerance.  Dr. Lam further remarks that Mr. Ko has to bear part of the responsibility for the present knee condition.”

60.  The plaintiff said in his witness statement and at trial that he had pain in his left knee, which affected his sleep.  He could only walk or stand for about 30 minutes.  He had difficulty in climbing stairs and in squatting down.  He had to take painkillers and he had consequential stomach-ache.  He could not lift heavy objects.  His left leg was weak.  There was pain at his back.  His sexual life had been affected.  He could not enjoy sports that he used to enjoy prior to the accident.

61.  Having observed the plaintiff’s demeanour in Court, and having considered his own evidence as well as the medical reports that have been placed before me (there having been a pre-trial direction that no oral expert evidence be adduced at trial), I have come to the conclusion that the plaintiff has exaggerated his present condition.  I do not believe his claim in the witness box about upper back, leg, shoulder, arm and head pain.  As Ms Remedios observed, he virtually claimed pain all over his body.

62.  Nor do I accept Dr Lau’s more benevolent interpretation of the ‘positive inorganic signs’ regarding his back pain that were observed during the joint examination when the Waddell’s inorganic test was performed on him.  Again out of abundance of caution, I should expressly point out that in determining liability and making findings, I have already taken into account this aspect of the plaintiff’s evidence and credibility.

63.  In short, I believe the plaintiff’s present condition is less serious than he would have this Court believe.  Regarding his limping gait, I do not doubt that he is suffering from some residual pain and disability in his knee, but likewise I think he has exaggerated his gait.  As I say, I am of the view that the plaintiff has exaggerated his condition and complaints.

Mitigation: refusal to undergo surgery

64.  In relation to surgical intervention, I fully bear in mind that the burden of proof lies with the defendants:  Geest v. Lansiquot [2003] 1 All ER 383 (PC).

65.  On the evidence given by the plaintiff and the medical evidence available, I have no doubt that the 1^st defendant has failed to discharge the burden to show that the plaintiff’s refusal to undergo surgical intervention when it was first suggested to him by his government treating doctors in 2003 was unreasonable.  The plaintiff has given evidence at trial on his reasons for refusal.  I have no reason to doubt those reasons given, particularly when the treating government doctors were not called to give evidence to contradict the plaintiff’s evidence on what he had been advised.  On those reasons, I do not think a case of unreasonable refusal to undergo surgical intervention has been made out.

66.  In this regard, Master Woolley’s robust observations in Luk Yee Lam v. Livasiri HCPI 394/2002 (27 November 2003), paras. 9, 11 and 12 are pertinent:

“9. The test as to reasonableness was further considered by Brown J in Morgan v T. Wallis Ltd [1974] 1 Lloyd’s Rep. 165, where he said:

“…But in deciding whether the defendants have proved that he has unreasonably refused to have the investigation and operation in question here, it seems to me clear from the authorities to which I have referred, that I must apply an objective test, in this sense would a reasonable man in all the circumstances, receiving the advice which the plaintiff did receive, have refused the operation?”

...

11. The next question then is whether it was the action of a reasonable man to refuse the operation in the light of the advice he had received.  With great respect to Brown J. in the case cited above, I do not consider it is as simple as merely placing an objective test on the matter.  What, after all, is a reasonable man?  It seems to me that I have to consider what is reasonable for a man with the plaintiff’s background, education an experience, rather than the fictional man on the Clapham omnibus.  To that extent the test must be, at least partly, subjective.  Here we have a 40 year old man who was only educated up to Form 3 in China, who must have had some training as a mechanic, although I do not know the extent of the mechanical expertise required for his previous employment in bus repair and maintenance.  He is not highly educated, and clearly relies heavily in matters outside his sphere of knowledge on others with specialist skills.  Even then, where the information he receives from them is not wholly in favour, or wholly against, he has to weigh that information and advice himself, and in the light of his own knowledge, experience and education.  Inevitably he will also rely on advice from others, family and friends, to whom he relates the information he receives, but who may be in no better position than himself to advise.

12. In such a case, and for such a man, it is inevitable that the risks of any surgical procedure offered are uppermost in his mind.  And, unless it has been clearly impressed on him, by a doctor he trusts, that those risks are minimal, and the advantages outweigh them to a large degree, as may be clear to an educated man, I cannot say that it is unreasonable that he should decide not to take those risks...” 

67.  But at trial, I have raised with counsel for the plaintiff the possibility of finding the plaintiff unreasonable in refusing to undergo surgical treatment after the joint medical report was prepared, in which both experts agreed with the recommendation for surgical intervention made by the treating doctors.  Both experts took the view that the chances of success of surgical intervention were as high as 90%.  Moreover, the surgical intervention proposed is microscopic surgery, a non-invasive procedure.  At least as a matter of principle, I do not see any difficulty in finding that a plaintiff had been reasonable in refusing to undergo surgical intervention at a particular point of time, but also finding him unreasonable in refusing to undergo the same surgical intervention at a subsequent point of time when circumstances had changed.  Here, the changed circumstances that I have in mind were the availability of the joint medical opinion given by two eminent experts in the field – I say so with due respect to the treating government doctors who first made the recommendation.  Moreover, by 2005 when the joint medical report was obtained, the plaintiff had already been receiving legal advice, which would or should cover the plaintiff’s duty to mitigate his loss.  As has been pointed out in Goldrein & De Hass, Butterworths Personal Injury Litigation Service (loose-leaf ed.) vol. 1, para. 1962, footnote 2, refusal of a procedure at a given time may not be unreasonable but could later become unreasonable, citing Thomas v. Bath District Health Authority [1995] PIQR Q19 as an example.

68.  In McAuley v. London Transport Executive [1957] 2 Lloyd’s Rep. 500, 505, Jenkins LJ actually said that

“if [a plaintiff] received advice to the effect that an operation will have a 90% chance of success and is strongly recommended to undergo the operation and does not do so, then the result must be, I think, that he has acted unreasonably, and that the damages ought to be assessed as they would properly have been assessable if he had, in fact, undergone the operation and secured the degree of recovery to be expected from it.”

69.  Of course, this is a highly fact-sensitive area and one cannot simply apply a hypothetical example given in another case to decide the case in hand without a detailed examination of the facts involved in that case.  I think Butterworths Personal Injury Litigation Service (at para. 1962) gives a useful list of factors (non-exclusive) that the court should consider in deciding the question of mitigation:

“· The nature of the treatment (and in particular whether or not it involves any invasive procedure).

· The likely duration of the treatment.

· The pain and discomfort involved in the suggested procedure.

· The risks associated with the procedure.

· Whether the treatment is conventional or experimental.

· The inconvenience involved in undergoing the treatment (is it something which can be done at home or does the claimant have to have inpatient treatment in hospital, and will the claimant be likely to lose his or her job by submitting himself or herself to the treatment?)

· The likely outcome of the procedure.

· The likely rehabilitation/recoupment period following the treatment.

· The timing of the treatment.

· The cost of the treatment if it is not available on the NHS and no interim payment is available to cover it.”

70.  However, I do not think, on the facts of the present case, I should pursue this line of inquiry any further against the plaintiff.  I say so for this reason:  I have already mentioned that the Judicial Committee of the Privy Council has taken the opportunity in Geest v. Lansiquot, supra, to restate the law by placing the burden of proving unreasonable refusal to undergo treatment squarely on the shoulders of the defendant.  As pointed out by Kemp & Kemp, The Quantum of Damages (loose-leaf ed.), vol. 1, para. 6-012,

“The burden of proof was on the defendant to show that the claimant had acted unreasonably and had thereby failed to mitigate her loss.  Further, the defendant must plead this with sufficient particularity to enable the claimant to meet the allegation.”

71.  Here, no such pleading, based on the plaintiff’s failure to undergo surgical intervention in light of the 2005 joint medical opinion, is present.  To allow this argument to be pursued in this case would be highly unfair to the plaintiff.  In the absence of such pleading, the plaintiff simply did not know that he had to meet such a case at trial.  Indeed, as has been mentioned above, counsel for the plaintiff told the Court from the bar table that the plaintiff’s legal advisers had not even advised the plaintiff of the possibility of changing his mind in the light of the joint medical opinion.  Their focus was on whether the plaintiff’s previous decision not to undergo surgical treatment despite the advice of the treating government doctors was a reasonable one or not.

72.  Furthermore, the plaintiff was not really cross-examined on this line of argument on mitigation whilst he was in the box.

73.  For all these reasons, I reject the 1^st defendant’s arguments on mitigation.  I will quantify the plaintiff’s claim on the basis that he has reasonably refused surgical intervention.

The plaintiff’s pre-accident income

74.  As regards the plaintiff’s pre-accident income, again I do not accept the plaintiff’s evidence on his average number of working days in a month.  In my view, he has grossly exaggerated the figures.  (Again I have fully borne this in mind in assessing the plaintiff’s credibility and making findings that are relevant to liability.)  The plaintiff claimed in Court that he was able to find work and indeed worked each and every day from February 2001 to March 2002, with the exception of 7 days (which comprised 3 Chinese New Year holidays and 4 other days).  He said that because he had worked in the trade for so long, he had good contacts and managed to find jobs without a break, even when others could not.  He also said that he and his wife had 3 children to support and they worked very hard.

75.  The plaintiff, rather incredibly, claimed that he had discarded all the actual records of wages after he had reconstructed his “calendar” of work for the purposes of claiming employees’ compensation.  His reconstructed calendar suggested that for over a year, he had worked on each and every day without a break, save for a mere 7 days.

76.  As I say, I do not accept the plaintiff’s claim.  His claim is contradicted by documentary evidence, including his tax returns.  While I do not doubt his own confession that when filling in the tax returns, he did not include all his incomes in the returns, that does not mean that he had as much work as he claimed in Court.  The claimed amount of work that he had with a sub-contractor (Kam Hang) simply does not tally with the employer’s return filed by that sub-contractor in respect of the plaintiff’s income.

77.  I have also considered the evidence called by both sides regarding how much work interior decoration workers in general had and have.

78.  Bearing everything in mind, I think the average number of working days in a month at the time of accident as well as now for an experienced interior decoration worker (master) like the plaintiff should be in the region of 20 days.

79.  There is no dispute that the plaintiff’s daily rate was $600.  That remains the current rate.

Post-accident sick leave and employment

80.  As for the plaintiff’s sick leave period, I do not read the joint medical report’s endorsement of the period of sick leave given by the medical assessment board (i.e. up to 31 July 2003) as a rejection of the subsequent sick leaves granted by the plaintiff’s treating doctors.  Apparently, the two experts had not been supplied with the further sick leave certificates.  I do not think there is sufficient evidence for this Court to reject these further sick leave certificates.  The 1^st defendant has not required the treating doctors to attend trial for cross-examination, nor has he asked the experts to specifically comment on their sick leave certificates.

81.  The plaintiff has been working as a security guard earning $6,500 per month since 28 July 2004.  His salary was increased to $6,800 as from July 2005.  I do not agree that in his present condition (which is permanent), the plaintiff can resume his previous job as a partition and false ceiling worker.  I think Dr Lam has under-estimated the physical demands of the plaintiff’s pre-accident job.  Notwithstanding the plaintiff’s exaggeration of his condition and complaints, I do not think his real condition reasonably allows him to return to his previous trade.  I accept his current job as a security guard is one that he could reasonably take up after expiry of his sick leave.

82.  I would therefore quantify the plaintiff’s loss and damage as follows.

PSLA

83.  On pain, suffering and loss of amenities, I would quantify damages at the figure of $200,000.  I have borne in mind the authorities cited by counsel during final submissions.  It is plain that the plaintiff’s present condition falls outside the serious injury category.

Pre-trial loss of earnings

84.  The plaintiff’s pre-trial loss of earnings is computed as follows:

$600 x 20 x 51.33 months - $6,500 x 11 months - $6,800 x 12.33 months = $460,616

Post-trial loss of earnings

85.  As for post-trial loss of earnings, the plaintiff will be 46 in November this year.  Having borne in mind the cases cited by counsel and considered the facts relevant to the plaintiff’s case, I would adopt a multiplier of 9 (post-trial).  The future loss is:

($600 x 20 – $6,800) x 12 x 9 = $561,600

Loss of earning capacity

86.  As for loss of earning capacity, I do not think there is sufficient evidence before me to justify a finding that the plaintiff has suffered a loss of earning capacity in terms of his ability in keeping his present job and in finding alternative jobs in the event of his losing the present one, given his condition (disregarding all exaggerations).  See Chan Wai-tong v. Li Ping-sum [1985] HKLR 176, 183 (PC); Moeliker v. A. Reyrolle & Co. Ltd [1977] 1 WLR 132, 140.

Special damages

87.  As for special damages, there was not much dispute by the time of final submission.  I would award the sum of $14,284 as claimed.

Future expenses

88.  Given my view on surgical intervention, there is no question of any award for future medical and related expenses.

MPF

89.  Loss of MPF is computed at 5% of the actual and future losses of earnings.  They come to $23,031 and $28,080 respectively.

Summary

90.  In summary, my quantification is as follows:

(a)	PSLA	$200,000
(b)	Past loss of earnings	$460,616
(c)	Further loss of earnings	$561,600
(d)	Loss of earning capacity	Nil
(e)	Special damages	$14,284
(f)	Future medical and related expenses	Nil
(g)	Loss of MPF	$51,111

91.  The gross amount is $1,287,611.  Employees’ compensation in the sum of $224,000 has been received.  Therefore the net amount is $1,063,611.

Judgment in main action

92.  In other words, this is the principal judgment amount to be awarded in favour of the plaintiff against the two defendants, together with interests.  Interest on PSLA is awarded at 2% per annum from the date of writ (22 March 2005) to the date of judgment (and thereafter at the judgment rate).  Interest on past loss of earnings, past loss of MPF and special damages is awarded at half the current judgment rate from the date of accident (30 March 2002) to the date of judgment (and thereafter at the judgment rate).

Judgment in contribution proceedings

93.  As for the contribution proceedings, I give judgment in favour of the 1^st defendant against the 2^nd defendant in respect of 75% of the following items:

(1) the common law damages (together with interests and costs) awarded to the plaintiff in the present action;

(2) the 1^st defendant’s own costs in defending the common law action (to be taxed);

(3) the agreed employees’ compensation ($224,000);

(4) the agreed costs of the plaintiff/applicant in the employees’ compensation proceedings ($46,230); and

(5) the costs of the 1^st defendant in defending the employees’ compensation proceedings as the 1^st respondent therein (to be taxed).

94.  Notwithstanding that the 1^st defendant as employer is partially responsible for the accident, he is entitled to claim contribution from the 2^nd defendant in respect of the employees’ compensation and related costs pursuant to the Civil Liability (Contribution) Ordinance (Cap. 377): Yardway Motors Ltd v. Tam Siu Lun [2005] 2 HKLRD 118.

95.  In my judgment, the amounts of award and costs agreed in the employees’ compensation proceedings are reasonable, in light of the documentary evidence that has been placed before the Court.

96.  On top of the principal items, I also award interests in favour of the 1^st defendant against the 2^nd defendant in relation to 75% of the agreed employees’ compensation and costs and the 1^st defendant’s own costs in those proceedings (i.e. items (3), (4) and (5) in paragraph 93 above), from the respective dates of payment to the date of judgment (herein) at the judgment rate, and thereafter until full payment also at the judgment rate.

Costs orders nisi

97.  As regards costs, I make the following orders nisi: (1) the defendants shall pay the costs of this action to the plaintiff, to be taxed if not agreed; (2) the 2^nd defendant shall pay the costs of the contribution proceedings to the 1^st defendant, to be taxed if not agreed; (3) there be legal aid taxation of the plaintiff’s own costs; (4) unless an application to vary the costs orders nisi is made within 14 days after this judgment is handed down, the same shall become absolute upon expiry of the 14 days period.

98.  I thank counsel for their assistance.