MANDEEP SINGH v. SOUTHWELL CONSTRUCTION CO. LTD. AND ANOTHER

HCPI 575/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 575 OF 2005

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J U D G M E N T

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1. The plaintiff brings this claim against the defendants for damages for personal injuries suffered by him as a result of an accident in the course of his employment with the 1^st defendant at a construction site now known as Langham Place situated at URA Development Scheme K2, Site A, Shanghai Street, Mongkok, Hong Kong (“the Site”) on 11 February 2004 when the plaintiff fell some 15 feet from a scaffolding on which he had been working shortly before he was due to finish work for the day.

2. The 2^nd defendant was at the material time the principal contractor of the Site while the 1^st defendant was a sub-contractor of the 2^nd defendant at the Site.

The accident

3. The plaintiff started working for the 1^st defendant only on 7 January 2004 as a casual worker, just over a month before the accident happened to him.

4. On the day in question, some time in the afternoon, he was asked by the foreman of the 1^st defendant to clean the windows and to remove the aluminium strips at the 12^th floor level of the building under construction at the Site.  He carried out that work with another co-worker, Ranjit Singh.  For that work, the plaintiff and his co-worker had to work from the scaffold erected in front of the building under construction.

5. At about 5.30 p.m., he and his co-workers were told by the foreman to finish off the work of the windows that they were doing and to knock off for the day.

6. As the plaintiff was descending from the scaffold, the co-worker being below him on the scaffold, the plaintiff stepped on a bamboo pole of the scaffold which cracked.  As a result, the plaintiff lost his footing, lost his balance, fell onto his co-worker who was below him on the scaffold, and both of them then fell onto the ground for a distance of about 15 feet.

7. It is the plaintiff’s case that for the work that he was asked to do which required him to be on the scaffold, he was supplied a safety belt of the parachute harness type as well as other safety equipment such as a helmet by the 1^st defendant.  However, no independent lifeline was provided, no fall arrester and no fall arrest block.

8. It is also the plaintiff’s case that in the absence of an independent lifeline, fall arrester and fall arrest block, only a safety belt of the parachute harness type was insufficient since such a safety belt could only be locked on to a secure anchorage point at any one spot where the plaintiff was working.  But when the plaintiff was descending from the scaffold, unlike an independent lifeline and fall arrester, there was no practical way for the plaintiff to securely attach the safety belt to any safe anchorage point when he was moving along the scaffold.

9. It was on this basis that the plaintiff claims negligence against both defendants, being the occupiers of the Site.

Liability admitted by defendants

10. The allegation by the plaintiff that no independent lifeline, fall arrester or fall arrest block were provided to him at the Site for the work he was asked to do not having been disputed by the defendants, it did not come as any surprise when, at the start of the trial, counsel for the defendants formally conceded full liability in the case in respect of both defendants, the only outstanding issue in dispute being the quantum of damages.

11. In the circumstances, it is no longer necessary for me to go into any further details of the occurrence of the accident other than to deal with the issue of damages.

Quantum of damages

12. Immediately after the accident, the plaintiff, who was still able to walk on his own, was taken to the Safety Officer’s office at the Site and later advised by the foreman to seek medical treatment at the Caritas Medical Centre (“CMC”).

13. The plaintiff accordingly, made his own way to the Accident and Emergency Department (“A&E Dept.”) of CMC.

Injuries and treatment

14. Examination of the plaintiff at the A&E Dept. of CMC revealed pain and tenderness on the right lumbar region.  The plaintiff was discharged after treatment.

15. The lower back pain of the plaintiff persisted and he was referred by the A&E Dept. of CMC on one of his follow ups to the Physiotherapy Department of CMC in March 2004 receiving physiotherapy treatment there as from March 2004, but defaulted from such treatment after only one session.

16. The plaintiff was also seen at the Department of Orthopaedics & Traumatology of CMC starting from March 2004 due to the persistent back pain.  He complained of lower lumbar back pain radiating down to his right thigh, but was able to walk without aid, albeit with a limp.  The plaintiff attended further follow ups there until August 2004.

17. The plaintiff was granted some 6 months of certified sick leave from the date of the accident until August 2004.

18. The plaintiff was examined by Dr Arthur Chiang, the orthopaedic expert appointed jointly by both the plaintiff and the defendants in this matter, in January 2005.

19. In his report which was dated 12 June 2005, Dr Chiang stated that he found mild decrease of the lumbar lordosis in the lumbar spine, but there was no significant narrowing of the intervertebral disc spaces in the lumbar spine.  No significant X-ray features of degenerative changes were noted.

20. As for the cervical spine, Dr Chiang found mild loss of cervical lordosis

21. The further findings by Dr Chiang from the MRI examination taken on 23 April 2005 showed posterior extrusion of L5/S1 disc.  The herniated disc was compressed on the right S1 nerve root causing moderate compression of the right anterior part of the thecal sac, which was suspected to be the lesion for the plaintiff’s right lower limb symptoms.

22. Posterior extrusion of L4/5 disc was also seen.  There was also slight posterior bulging of L1/2, L2/3, and L3/4 discs which are causing minimal indentation on the anterior part of the thecal sac.

23. Decreased signal intensity seen in L4/5 and L5/S1 discs indicated disc degeneration and dehydration.

24. Minimal change of spondylosis was seen in the lumbar spine and no significant degenerative change is seen in the lumbar facet joints.

25. From such findings, Dr Chiang came to the following opinion :

(a)  the MRI report showed findings of posterior herniated L5/S1 disc compressing on the right S1 nerve root and causing moderate compression on the right anterior part of the thecal sac;

(b)  also from the MRI report it showed moderate posterior herniation of the L4/L5 disc caused moderate compression on the anterior part of the thecal sac;

(c)  there were also slight posterior bulging of the L1/2, L2/3 and L3/4 discs and minimal lumbar spondylosis;

(d)  the more significant pathology appeared to be at the L5/S1 level since the L4/5 disc prolapse appeared not to be compressing on the nerve root, especially on the right side;

(e)  it was therefore difficult to tell if the L4/5 disc prolapse arose from or was related to the injury;

(f)  the posterior bulging of the L1/2, L2/3 and L3/4 discs were of slight bulging and unlikely to be giving rise to more significant symptoms and unlikely to be contributing to the plaintiff’s current complaints;

(g)  the presence of several levels of slight posterior disc bulges would likely represent degenerative disc disease, albeit asymptomatic prior to the accident;

(h)  likely the plaintiff had suffered from a prolapsed L5/S1 disc at the early stage, but by the time (of Dr Chiang’s examination) had improved to a reasonable level although some residues might still be present;

(i)  the plaintiff would have a reasonable capacity for performing the daily activities but would be required to avoid a continuous and prolonged type of heavy manual work or prolonged stressful posture, the avoidance of which would help to avoid a late future relapse of the prolapse;

(j)  it was noted that the plaintiff had only received about 10 sessions of physiotherapy which was relatively short course of treatment for prolapse lumbar discs;

(k)  Dr Chiang suggests about 40 to 50 sessions of treatment the average costs for each session being about $350;

(l)  with the recommended further treatment, there could be further improvement to the plaintiff’s back condition, but surgery is unlikely to be required;

(m)  the permanent impairment to the plaintiff from his condition was assessed to be 10% of the whole person and he should be able to take up work of a less heavy type than before;

(n)  Dr Chiang found it difficult to conclude definitely whether the plaintiff had a pre-existing degenerative condition which was aggravated by the accident, but the absence of any history of back problem and his ability to perform heavy manual work before the accident would suggests that even if he had a pre-existing degenerative condition before the accident, that degenerative condition would have been asymptomatic;

(o)  if such degenerative condition was present before the accident, the plaintiff may have had to change to work of a light duty in about 5 to 10 years time counting from the time when the MRI was taken in April 2005; and

(p)  the sick leave (which ended in August 2005) was adequate and acceptable.

Pain suffering and loss of amenities

26. Under this head of damage, the plaintiff claims an award of $350,000 to $400,000 on the basis that there should be a finding by the court that there was no pre-existing degenerative condition to lumbar spine of the plaintiff, being a young man of 24 at the time of the accident.  The plaintiff also seek reliance on the Shah Nisar case in support of its contention for PSLA award.

27. On the other hand, the defendant submit that the award under this head should be $100,000 relying on the awards as guideline in following locally decided cases :

(a)      Shek Kam Ching v. Po Kee Construction Engineering Ltd (HCPI No. 434 of 2001);

(b)     Yip Piu v. Chung Kam Fei Catherine (HCPI No. 1168 of 1999);

(c)     Yeung Sze v. Win Art Design & Decoration Co. Ltd (HCPI No. 6 of 2000); and

(d)     Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523.

28. On the evidence contained in the report and the findings made by Dr Arthur Chiang, I am unable to accede to the plaintiff’s suggestion that there should be a finding that the plaintiff was not suffering from any pre-existing degenerative condition of the lumbar spine.  I note that Dr Chiang found it hard to conclude definitely whether there was pre-existing degenerative condition, however the standard of proof in a civil case as this need only be on balance. 

29. Bearing in mind that Dr Chiang was a jointly instructed expert, and that none of his findings contained in his report was or indeed could be challenged by the parties, it is clear from the totality of Dr Chiang’s report that he was of the view that the multiple levels of disc bulging in the lumbar spine of the plaintiff “would likely represent degenerative disc disease” (paragraph 8 of Dr Chiang’s report refers).  That is further supported by what is stated by Dr Chiang in paragraph 19 of his report where he states :

“In the presence of multiple levels of degenerative lumbar disc disease as noted in the MRI, if without the accident, and if (the plaintiff) continued to work in the pre-injury type of job, there existed the likelihood that back symptoms may arise in the future.”

30. Accordingly, far from making the finding as suggested by the plaintiff, that finding, based on the undisputed report of Dr Chiang, must be in the opposite direction, that there was sufficient medical evidence before me that the plaintiff, although at the young age of 24, was likely having a pre-existing degenerative condition of his lumbar spine at the time of this accident.

31. Taking into consideration the cases cited by the defendant in support of the defendant’s contention relating to the award of PSLA, and using those previous awards cited as guideline, it would appear that the range of awards for a plaintiff suffering the condition as this plaintiff would be from $150,000 to $200,000.

32. Taking further into account the pre-existing degenerative condition of the plaintiff’s lumbar spine as stated by Dr Chiang, albeit asymptomatic up to the time of the accident, and the fact that Dr Chiang states that there may yet be further improvement in his condition given the further treatment suggested by Dr Chiang, I would assess the award for PSLA in this case to be $170,000.  That is the award that I make under this head of damage.

Loss of earnings (pre-trial)

33. The pre-trial period since the accident has been 31½ months.

34. The plaintiff was given sick leave for 6 months after the accident.  That sick leave period was considered to be reasonable by Dr Chiang.

35. Both these matters are not in dispute between the parties.

36. What is disputed between them in this case relating to the issue of loss of earnings is the monthly earnings of the plaintiff prior to the accident.

37. It is the plaintiff’s pleaded case that he was earning $10,450 per month before the accident.  It is common ground that the plaintiff only started working for the 1^st defendant in this case as from 7 January 2004 and that the accident happened on 11 February 2004, just over one month after he had started working for the 1^st defendant.

38. It is the plaintiff’s evidence that he was paid $350 per day by the 1^st defendant.

39. It is also stated by the plaintiff in paragraph 19 of his witness statement that he believed his average monthly earning would have been about $9,935 after deducting MPF.  That would suggest that he was working for something like 30 days in a month.

40. On the other hand, the defendant’s record of earnings relating to the plaintiff shows that the plaintiff was paid $5,337 for the entirety of the period that the plaintiff worked for the 1^st defendant, which was just over one month.

41. On such evidence, it is the contention by the defendant that $5,337 should be the amount used as the plaintiff’s pre-accident earnings and the basis for calculating the pre-trial loss of earnings in this case.

42. I am not persuaded by either submission put forward by the plaintiff and the defendants respectively.

43. Even accepting the plaintiff’s evidence that he was paid a daily rate of $350 by the 1^st defendant, it is unreal to calculate the plaintiff’s pre-trial earnings at a full 30 days month, especially when there is evidence from the defendants that the plaintiff was only paid total wages of $5,337 for the time between 7 January and 11 February 2004.  That would tend to show that the plaintiff, at least for that month, did far less than 30 days of work in a month.

44. On the other hand, it is just as unreal to pin the plaintiff’s pre-accident earnings on the amount of $5,337 being what was paid to him by the 1^st defendant.  The reason for that is that the plaintiff is a casual worker and may well have worked for other employers other than the 1^st defendant during some parts of that one-month or so.  Moreover, there is some evidence from the plaintiff that one of his children was sick at the time and that may have prevented him from going to work on some of the days.

45. Indeed, there is some evidence in this case that for a part of the time between 7 January and 11 February 2004, the plaintiff was doing night time work for a laundry shop and no doubt being paid for it.

46. The better course in my view would be to base such finding on the evidence given by the plaintiff in cross-examination upon the documentary evidence produced in evidence showing the plaintiff’s earnings and also documentary records of MPF payments in relation to other employers during the several years before this accident, which evidence counsel for the defendants has helpfully summarized into Appendix I attached to his written Closing Submission.

47. That evidence shows the plaintiff to be earning between $6,000 and $7,000 on average per month for the few years prior to this accident.

48. However, that analysis only focused on how much the plaintiff earned from each employer that the plaintiff has worked for.

49. Since there is evidence in this case which I accept that at times the plaintiff may work for more than one employer in a given month, solely focusing on just one employer alone at a time as the analysis does, will not paint a true enough picture of the plaintiff’s actual earnings.

50. In those circumstances, I am prepared to use $7,000 as being the nearest mark to what the plaintiff could have been earning in a month but for the accident.  I choose the higher figure of $7,000 both for the reason given and also the fact that the plaintiff is married with three young children and likely he will be doing as much as he can to provide for his children.  That fits in with the evidence that at times he will be working at more than one job in order to provide for the family.

51. I should also say at this stage that much evidence had been adduced and cross-examination made as to what was called ‘comparables’ between the plaintiff’s earnings with the earnings of Ranjit Singh and other Indian workers who worked at the Site with the plaintiff at the time of this accident.

52. In my view there can be no comparison between the monthly earnings of casual workers at a construction site.  All that can be compared is the daily rate paid to workers doing the same type of work.  The reason for that is for casual workers, it is very much an individual matter how many days a casual worker decides to work at a construction site, therefore at the end of the month, different casual workers will receive different amounts of monthly wages.  That would also apply to overtime work.

53. However, in this case, there is evidence from the plaintiff that while he was paid $350 a day, Ranjit Singh was paid $375 a day.  In the light of that evidence which I accept, there can be no other useful purpose to compare the monthly earnings between the two of them for the assessment of the plaintiff’s loss of earnings.

54. Coming back to the assessment of the plaintiff’s loss of earnings, for the 6 months of sick leave granted to him, there will no doubt be full loss of earnings.

55. I am also prepared to give a further 3 months for full loss of earnings in that the plaintiff ought to be entitled to some margin to enable him to look for alternative employment where the medical evidence suggests that he would need to seek alternative employment of a less heavy type of work when throughout the plaintiff has been engaged in the more heavy type of manual work.

56. Therefore 9 months of full loss of earnings comes to $63,000.

57. The remaining 22.5 months will be assessed as partial loss of earnings.

58. As for the earnings that the plaintiff can make in alternative employment, the evidence from the plaintiff is that he had been looking for work since his sick leave ended but he was not successful until December 2005 when he obtained work as a labourer with Kiran’s Provision Store earning $4,100 per month.

59. On that evidence, I am prepared to accept that amount which the plaintiff was paid at Kiran’s Provision Store to be what he could get by way of alternative employment since he suffers a distinct disadvantage in language, being an Indian.

60. The partial loss of earnings would therefore be assessed at ($7,000 - $4,100) x 22.5 months giving $65,250.

61. The total loss of earnings for the pre-trial period comes to $128,250.  A further 5% of that figure will have to be added to take account of the loss of MPF contribution by the employer.  The final figure comes to $134,662.50.

Other special damages

62. Other special damages for medical expenses, travelling and tonic food claimed totally at $3,350 is not in dispute and will be allowed.

Future loss of earnings

63. For the assessment of future loss of earnings, I will adopt the $2,900 partial loss in respect of pre-trial loss of earnings as the multiplicand.

64. As for the multiplier, the plaintiff has suggested 16 due to the young age of the plaintiff, being 24 at the time of the accident.

65. However, there are two matters which I have to also take into account in selecting the correct multiplier.

66. Firstly, there is the evidence of Dr Chiang that with the suggested 40 to 50 sessions of physiotherapy, there should be further improvement to the plaintiff’s condition albeit not total.

67. Secondly, Dr Chiang’s evidence that the plaintiff had a pre-existing degenerative condition of his lumbar spine which, although asymptomatic before the accident, would, even without the accident, likely in 5 or 10 years time be such that the plaintiff would have had to take up some lighter job than his pre-accident work.

68. Giving full effect to the above two matters, I am of the view that the proper multiplier to adopt in this case would be 12, and not 16 as suggested by the plaintiff.

69. The loss of future earnings therefore comes to $417,600.  To this figure will be added 5% to take account of the loss of MPF being the employer’s contribution.  This gives the total figure of $438,480.

Loss of earnings capacity

70. The plaintiff claims $100,000 for loss of earnings capacity.

71. The defendants dispute such claim on the basis that it has not been shown that the plaintiff has suffered a real handicap in the labour market.

72. I have little doubt that the plaintiff has indeed suffered a real handicap in the labour market.  That is amply shown by the fact that the plaintiff has been unsuccessful in getting any work after his sick leave period has expired until November 2005 when he secured work at Kiran’s Provision Store earning a much reduced salary of $4,100.

73. Even so he has lost that job in April 2006.

74. Having said that, the amount of $100,000 claimed under this head is excessive given that the plaintiff’s alternative employment is taken to be at $4,100.

75. In my view, a proper and reasonable amount to compensate the plaintiff for loss of earnings capacity would be $50,000 which would be just over 12 months wages of his alternative employment and ought to compensate him in all the circumstances of this case for loss of earnings capacity in the labour market, averaging out to be one month for each year of the multiplier used.  

Future medical expenses

76. The amount of $17,500 claimed under this head is not disputed by the defendants and will be allowed.

Interest

77. Interest will be awarded for general damages for PSLA at 2% from the date of the Writ.

78. Interest will also be awarded for all pre-trial losses at half judgment rate from the date of the accident.

Deduction

79. Credit will have to be given by the plaintiff for the sum of $46,260 being the amount of ECC payment already received by the plaintiff for this accident from his employers.

Summary

Conclusion

81. There will be judgment to the plaintiff against the defendants in the amount of $791,762.50.

Costs

82. There will be a costs order nisi that the defendants pay to the plaintiff his costs of this action to be taxed on the District Court scale if not agreed.