YUEN YIU KWONG v. CHAN KWOK CHUEN AND ANOTHER

HCPI 1356/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1356 OF 1999

____________

____________

_______________

J U D G M E N T

_______________

1. The Plaintiff was born on 15 October 1958. He first started his career as an air conditioning apprentice and he became an air conditioning technician. Later on, in or about the early 1980s he also learned the trade of an electrician. Since he learned his trade as electrician, he worked as an electrician until he joined the 1st Defendant in March 1996. Apparently the wage for an electrician is generally slightly higher than that of an air conditioning technician. The difference is about $40 to $50 per day. On top of that, it is physically more demanding to work as an air conditioning technician. Hence, there is little surprise that since the Plaintiff learned his trade as electrician he opted to work as an electrician rather than an air conditioning technician.

2. However, like many other jobs associated with the construction industry, the supply of work as electrician or air conditioning worker may not be very stable. Hence, after completing the work at one site, there may be gaps of days during which the Plaintiff could not find any work and hence would not be able to earn any wages. Probably because of the security of the job, the Plaintiff had decided to join the 1st Defendant in March 1996 working as an air conditioning technician. He was initially paid $500 per day. However, because of the Plaintiff's skill and ability to read plans, the Plaintiff was soon asked to head a small group of air conditioning workers and in consequence of which he was paid an additional sum of $40 per day. It would appear that the 1st Defendant was able to supply the Plaintiff constant work until the Plaintiff's resignation in 1997 in circumstances set out below. In fact during the time when he was employed by the 1st Defendant, the Plaintiff would often be asked to do overtime work. The extra income from overtime work would obviously depend on the number of hours of overtime work performed. Suffice is to say that in most instances, the Plaintiff was given the opportunity of earning an average $135 per day from overtime work.

3. In 1997, the 1st Defendant was a sub-contractor of the 2nd Defendant in relation to some air conditioning work at the site of the Convention Centre in Wanchai. There is no real dispute that the 2nd Defendant was the main contractor of the site. It is common knowledge that the work had to be ready for the Convention Centre to be used for the change of sovereignty ceremony on 1 July 1997.

4. On 8 March 1997, the Plaintiff was engaged in the installation of some air conditioning pipe work on the 7th floor of the site. The work would involve the erection of certain frames for the installation of air condition pipes. Those frames were basically made of one horizontal bar being welded onto 2 parallel vertical metal poles. The horizontal bar would act as the support of the air conditioning pipes. In order to reach the height of the horizontal bar, it would be necessary for the worker to stand on a working platform of about 2 meter high. There is no dispute that a working platform was made up of a metal framework of about 2 meters high, 2.5 meters long and 1.5 meters wide. On top of this metal framework there would be placed 2 pieces of wood in a lengthwise direction. These pieces of wood were called the "backbones". The 1st Defendant would suggest that in order to ensure that it would be safe, there should be 3 pieces of backbones for the platform. On top of the backbones there would be placed a wooden board which would form the floor of the platform for the worker to stand on to do the work. Of course there is nothing to prevent the wooden board to be replaced by a metal sheet.

5. There was no dispute between the parties that the 1st and 2nd Defendants did not supply to their workers any work platform as such. When the work concerned would require the use of platform, the workers would have to erect the platform themselves. Although there was some vague suggestion that the 2nd Defendant would provide new and suitable material for the building of the platform, on the totality of the evidence before me, I find that in fact the workers were not expected to use any new material to erect the platform. The practice had always been that the workers were expected to locate some used building materials, such as boards and planks lying around the building site to make their own working platform.

6. The Plaintiff agreed that he was the head of a small team working at the site. There is really no dispute that the size of the team would vary depending on the work involved. Sometimes, the team could consist of 6 persons, and sometimes it could be as few as 2. According to the Plaintiff, on 8 March 1997, he was merely working together with one other worker, Mr Lai Sun. At about 2:00 to 3:00 p.m. on that day, he was engaged in the work of erection of the metal frames for the air conditioning pipes on the 7th floor of the site. By that time, the parallel vertical metal poles had already been erected onto the floor, and he was trying to measure the distance between the parts of the 2 poles at the level of the horizontal bar so that he could find out the length of the metal bar that he would have to cut out to be welded onto the poles. In order to do so he would have to get onto a work platform. He said that when he got onto the platform, he put his measuring tape against one of the poles and he then started to stretch the tape to the other pole. As he was doing so one of the backbones broke and the board he was standing on tilted and he fell down from the platform hitting against the crossbar of the framework of the platform as he landed on to the floor.

7. According to the Plaintiff, the platform was built by Mr Lai Sun. However on cross examination, he also agreed that he helped Lai Sun to look for the material to build the platform. There were 2 backbones for this platform. They were about 2.75 meters long, 0.1 meter wide and 0.05 meters thick. The piece of board which formed the floor of the platform was about 2.25 meters long, 0.5 meter wide and 0.02 meters thick. The board was just resting on the backbones without anything to affix the board and the backbones together.

8. The Plaintiff's evidence was that after the fall, he found out that the backbone that had broken was in fact made up of 2 short wooden beams attached together by a piece of wood nailed to the top of the 2 short beams at the joint. The Plaintiff would agree that such defects in the backbone would be easily seen if he had looked at the backbone. Of course, if the platform was already erected the 2 backbones would be partially covered by the board on top and one may not be able to see the joint in the backbone without removing the board. Although in cross examination the Plaintiff would accept that he helped Lai Sun to look for the material to build the platform, he would not agree that the defective backbone was collected by him and Lai Sun together.

9. On the part of the Defence, only Mr Chan of the 1st Defendant gave evidence in relation to the issue of liability. Mr Chan did not actually witness the accident. He came to know of the accident on the date of the accident but only towards the end of the day. On that day, he did not come up to the scene of the accident to look at the place. He did however come to the scene of the accident the next day and he saw and had spoken to Mr Lai Sun. His account of how the accident took place was based on what he was told by Mr Lai Sun. As to what he in fact saw, he said that on the next day, he only saw the broken beam near the frame of the platform. He saw some boards around but they were not close to the frame of the platform. The beam was about 7 feet long, 2 inches thick and 4 inches wide, and it was broken into 2 parts in the middle. He understood that the beam was the piece of backbone that broke and caused the accident. He said that the beam was not joined up by 2 pieces of beams as suggested by the Plaintiff. According to him, if the beam was joined up by 2 beams, then he would expect the edges of the 2 parts to be rather smooth. As it was, he found that the broken edges of the 2 parts were irregular, thus suggesting to him that it should be the case that the beam was broken due to heavy impact or having weight being applied to the weak point of the beam. In his view, the beam must have been subject to some heavy impact, thus causing some inherent weakness in it before the same was put onto the frame of the platform. He said that there should be some telltales of such weakness and he would expect that there would be cracks on the beam. He would expect an experienced worker like the Plaintiff to be able to discover this because an experienced worker should check the beam before using it for the platform.

10. Mr Chan also disagreed that at the time of the accident, the Plaintiff was trying to measure the distance between the 2 parallel vertical poles. According to him, since the poles were vertical, the distance between the 2 poles at the top part should be the same as the bottom part. Hence, it would only be necessary to measure the distance of the middle part. Even if there should be some discrepancies in the distance resulting from the fact that there was deviation from the vertical in the erection of the vertical poles, the discrepancy between the distance of 2 poles at the top and in the middle should be small. If the difference was just 1 or 2 mm or even up to one finger space which I take it to mean about 1 cm, it would not have mattered at all because welding would still have to be done to affix the bar to the 2 poles. Thus, according to Mr Chan he would not expect an experienced worker like the Plaintiff to find it necessary to climb up to measure the distance to ascertain the length of the bar he would have to cut to be welded onto the poles. He said that if he had to do that, he would only be worth the wage of $200 per day instead of $500.

11. Also according to Mr Chan, from what he learnt, at the time of the accident, the Plaintiff was not standing on the board of the platform. Instead, the Plaintiff was merely standing on the beam which broke. This would mean that the platform was not properly completed. Further, his evidence was that if the platform was meant to be catered for one worker, then it would be sufficient to use 2 backbones, but if it was meant to be used for 2 workers, then there should be 3 backbones.

12. Further, the Defendant's case was that at the time of the accident, the Plaintiff was in fact engaged in the process of welding of the horizontal bars. According to the 1st Defendant, by then in fact the horizontal bars had been put in place between the vertical poles. They were held in place by some spot welding. However, the bars were not completely and securely welded and the Plaintiff was then engaged in the process of doing the final welding.

13. There was also a dispute between the parties on the question of the safety belt. On the pleadings, the Plaintiff admitted that he had been issued with a safety belt and it was the Plaintiff's case that there was no suitable place to which the belt could be anchored. However, when he gave evidence before me, the Plaintiff appeared to suggest that in fact he was not given any safety belt because the 1st Defendant had only had 8 safety belts available and that was not enough for all the workers who needed them. Mr Chan of the 1st Defendant while agreeing that the 1st Defendant had only 8 safety belts said that even if the 1st Defendant's safety belts were all taken by the workers, the Plaintiff could still have access to the safety belts provided by the 2nd Defendant. It was also said that the Plaintiff as an experienced worker should know when a safety belt was necessary and if there was not one available in the 1st Defendant's store room, he could always raise the matter with the 1st Defendant and there would be no problem whatsoever to get one from the 2nd Defendant for his use. As to the place for anchoring the safety belt, the evidence of Mr Chan was that since the horizontal bar of the metal frames for the air conditioning pipes had been spot welded in place, the safety belt could be anchored to the horizontal bar which would be at about the level of the waist when one was standing on the work platform. He said that although the horizontal bar had not been firmly welded, the spot welding which held the horizontal bar to its place would be able to support the pull of some 500 pounds. Hence according to Mr Chan, the bar would be secured enough for the safety belt to be attached to it.

14. There was really no dispute that on the day in question, the Plaintiff did fall from the platform and did injure himself. Having heard the evidence of the Plaintiff and Mr Chan, I am of the view that it was unlikely that the work platform was built by the effort of Mr Lai Sun alone. Even the Plaintiff would admit that at the relevant time, he was the leader of the team consisting of himself and Mr Lai. He also agreed that he assisted Mr Lai in the collection of material used for the erection of the platform. Although he denied that he was responsible for the selection of the piece of beam which was later found to be defective, I have little doubt he also played a part in the erection of the platform. In the absence of any evidence from him as to what he was doing after the material for the erection of the platform was gathered, it would be unlikely that it would then simply be the task of Mr Lai Sun, his subordinate to select the beams and put them together without his participation or without his supervision. In these circumstances, I would consider that it was high likely that the Plaintiff was at least also present supervising Mr Lai in erecting the platform if he did not actually participate in the work himself. Hence, I am of the view that the Plaintiff should at least be aware that one of the beams to be used as the backbone was defective. Indeed, if this defective beam was in fact joined up by 2 separate beams as suggested by the Plaintiff in evidence, there was even more reason for the Plaintiff to be able to find out that the beam was defective and should not be used as the backbone. Even if the beam was simply defective in the sense that there was a weakened part in the middle as suggested by Mr Chan of the 1st Defendant, then there would at least be cracks which should also be visible to someone who took part in the erection of the platform or who supervised the erection of the platform. As the leader of the small team, it must be the duty of the Plaintiff also to make sure that the platform erected for the work of the team was safe. After all, the 2 of them worked as a team, and it must be either he or Mr Lai or may be both, who had to work on that platform.

15. I am however not convinced that at the time of the accident, the Plaintiff was merely standing on the defective beam. In this aspect, I accept the evidence of the Plaintiff that he was standing on the board of the platform. Although I was generally impressed by Mr Chan as a truthful witness, Mr Chan did not in fact witness the accident. His evidence on this point was merely based on what he was told by Mr Lai Sun and also the inference he drew from seeing only a broken beam near the platform the next day after the accident. For reasons not explained to me, Mr Lai Sun was not called to give evidence by the defence. It must also be remembered that the accident took place between 2:00 to 3:00 p.m. and after the accident, Mr Lai Sun and perhaps other workers would still continue with the work until the end of the working day. Hence, it was not improbable that the position of the working platform would be moved after the accident so that when Mr Chan saw the platform the next day, it was no longer at the same position as at the time of the accident. Accordingly the fact that there was only one piece of broken beam next to the platform did not warrant the conclusion that there was no other beam and board being used for the platform. It would also follow that the piece of broken beam he saw might not be the one used as the backbone of the platform.

16. As to the progress of the work, I would accept the evidence of Mr Chan that by the afternoon of 8 March 1997, the horizontal bars of the metal frames were already spot welded in place. Although Mr Chan was not at the 7th floor in the afternoon of 8 March 1997, I accept his evidence that with the exception of days when he had to go to the 2nd Defendant's office to collect the wages for his workers, he would see the leaders of all the small teams asking them about the progress of the work on the day before. He would also give instructions to the team leaders as to what work should be done. If his own work schedule would allow, he would also go round to look at the progress of the work done by his workers. Hence, although he had not actually inspected the work at the 7th floor in the afternoon of 8 March 1997, I am satisfied that he had a clear understanding on the progress of the work. Furthermore, I agree with the view expressed by Mr Chan that there was really little reason for the Plaintiff wanting to measure the distance between the 2 poles at the level of the horizontal bar. There were levelling tapes which could be used to make sure that the poles were vertical. However, apart from the issue of whether the Plaintiff should have worn a safety belt at the time of the accident, I do not consider that the question of whether the horizontal bars were already spot welded in place is relevant to this action. This is because whether at the time of the accident, the Plaintiff was doing the final welding or was merely trying to take measurement of the distance between the 2 poles, it is clear that he was then acting in the course of his work.

17. On the issue of the safety belt, I have already held that I accept the evidence of Mr Chan that safety belts were available to the Plaintiff. The Plaintiff being employed as a skilled technician and also a team leader was well aware that if he was to work at height, he should use a safety belt. However, in the circumstances of the present case, I do not think that the Plaintiff could be properly criticized for not using a safety belt even though I am of the view that by the time of the accident, the horizontal bars of the metal frames had already been spot welded in place. In the absence of any supportive expert evidence or at least corroborative evidence, I am unable to accept the view of Mr Chan that a spot welded bar would be able to withstand the pull of 500 pounds. The purpose of the spot welding was merely to temporarily hold the bar in place to allow further welding to be done to secure it to its position. How secure the spot welding was may thus vary from bar to bar. It would appear that so long as it was secured enough to hold the bar to its position temporarily, the purpose of the spot welding was served. Hence, the bar may not be secured enough to support the sudden pull by the weight of the body of the Plaintiff when he fell from the platform. In short, I am not satisfied that had the Plaintiff secured a safety belt to the bar which was just spot welded, the injuries he would suffer from the fall would be less.

18. The Plaintiff made his claim against the Defendants on 3 bases.

19. First, he based his claim on the ordinary law of tort of negligence. As an ancillary part of this claim, the Plaintiff would also claim against the Defendants under the Occupiers' Liability Ordinance for failing to take such care as was reasonable to see to that the Plaintiff was reasonably safe in using the site and carrying out his duties.

20. The second alternative basis of the claim was on breach of an implied term of the contract of employment that the 1st Defendant should take all reasonable precautions for the safety of the Plaintiff while he was engaged in carrying out his duties, and not to expose the Plaintiff to any risk of injury or damage of which the 1st Defendant knew or ought to have known and to provide and maintain the Plaintiff a safe system of work. It was also pleaded that the implied term would also extend to an obligation on the part of the 1st Defendant as employer to provide the Plaintiff with proper instructions to carry out his duties. However, in the circumstances of the present case, I am unable to see what instructions the 1st Defendant should have given to the Plaintiff which would have avoided the accident or the Plaintiff's injury. It would appear to me that the claim under contract could only be directed against the 1st Defendant as the Plaintiff's employer. As there was no contract between the Plaintiff and the 2nd Defendant, the 2nd Defendant could not be liable to the Plaintiff under any claim on contract.

21. It would appear to me that the implied term pleaded was in fact co-extensive with the duty of care in tort in the present circumstances, and so the claim on contract must likewise rise and fall with the claim in tort.

22. The third basis was on breach of statutory duties under the Regulation 38L of the Construction Sites (safety) Regulations. This regulation was in force on the date of the accident but has since been replaced by regulations 38B(4) & 38D. At the material time, regulation 38L was in the following terms :

"Construction of working platforms, gangways, runs, etc.

The contractor responsible for a construction site shall ensure that -

(a) every working platform, gangway or run from any of which a person is liable to fall a distance of more than 2 metres is either closely boarded, planked or plated, or is a platform consisting of open metal work having interstices none of which exceeds 3800 square millimeters in area;

(b) every board or plank forming part of a working platform, gangway or run is -

(i) of sound construction, adequate strength and free from patent defect;

(ii) of a thickness capable of affording adequate security having regard to the distance between the supports and be not less than 200 millimetres in width and not less than 25 millimetres in thickness or not less than 150 millimetres in width when the board or plank exceeds 50 millimetres in thickness;

(iii) rests securely and evenly on its supports;

(c) no board or plank which forms part of a working platform, gangway or run projects beyond its end support to a distance exceeding 150 millimetres unless it is sufficiently secured to prevent tipping."

23. I am of the view that the 2nd Defendant was a contractor responsible for the construction site in question. Indeed in the final submission of the Defendants, no point was taken that the 2nd Defendant was not a contractor responsible for the site. However, it was contended that the "platform" from where the Plaintiff fell was not a "platform" within the meaning of regulation 38L.

24. On the first and main issue in this case of whether the 1st Defendant was negligent, I am of the view that the 1st Defendant was negligent. Although one cannot say that the 1st Defendant was negligent in asking or requiring the Plaintiff and his co-workers to erect their own working platform, in my view, the 1st Defendant was under a duty to supply his workers suitable materials to build the platform required. It would not be a safe system of work to ask the workers to hunt around from used building materials to build the platform. At least it would not be safe without any special direction on the choice of the materials to be used. Furthermore, on the facts as I found, the platform which was undoubtedly defective because of the defective backbone, was built by the joint effort of the Plaintiff and Mr Lai Sun. It was clearly negligent on the part of the builders of the platform in using the patently defective beam as one of the 2 backbones of the platform. In this regard, I am of the view that Mr Lai Sun was clearly also negligent in constructing the platform and the 1st Defendant was vicariously liable for the negligence of Mr Lai Sun.

25. Because of the failure to provide suitable materials for the platform and a safe system of work and because of the negligence of his employee Mr Lai Sun, the 1st Defendant was also in breach of the implied term of the contract of employment with the Plaintiff in failing to take all reasonable precautions for the safety of the Plaintiff and in exposing the Plaintiff to injuries for which the 1st Defendant ought to have known and in failing to provide and maintain a safe system of work.

26. In relation to the claim for breach of statutory duties, I am of the view that the "platform" in question was clearly within the meaning of "platform" in regulation 38L of the Construction Sites (Safety) Regulations. The Defendants relied on cases like Buist v Dundee Corporation (1971) S.L.T. 76 and Regan v G & F Asphalt (1867) 2 KIR 666 and sought to argue that a single beam could not be considered as a platform. It is not necessary for me to decide whether the cases cited would go to the full extent in supporting such contention or not because on the facts as I find, the platform from which the Plaintiff fell was made up of 2 backbones resting on a metal frame and with a piece of board resting on the 2 backbones. It is plain and obvious that it was a platform for the purpose of regulation 38L.

27. It was plain from the facts I find that the platform was not of sound construction, and there were the patent defects in one of the backbones on which the board rested. Accordingly there was a breach of regulation 38L(b)(i). Furthermore, the board acting as the floor was not affixed to the 2 backbones which in turn were not affixed to the metal frame. In this regard, I am also satisfied that there was a breach of the provision of regulation 38L(b)(iii) because the board and the backbones did not rest securely on the supports. It is not necessary for me to consider whether there were other breaches of other provisions in regulation 38L as the only breach relied on was regulations 38L(b)(i) & (iii). The patent defects in the backbones and the unsecured way of the resting of the board and the backbones had no doubt caused or contributed to the collapse of the board and the Plaintiff's injury.

28. The Defendants contended that in the circumstances of this case even though the Defendants may be guilty of negligence or breach of statutory or contractual duties, the Plaintiff's injuries and damages were caused wholly or in part by the Plaintiff's own negligence. I agree. As I have indicated above, I find that the platform was constructed by the joint effort of the Plaintiff and Mr Lai Sun. The Plaintiff as the team leader was under a duty to supervise the worker, Mr Lai Sun. The defect in the beam was patent and the Plaintiff should not have used or allowed Mr Lai Sun to use this beam as the backbone of the platform. In the circumstances, I am of the view that the Plaintiff was liable for 50% contributory negligence.

29. After the accident, the Plaintiff stopped work and took a rest at the site for the remainder of the day. He left slightly earlier for the day having told Mr Chan of the 1st Defendant of the accident. He took leave on the next day. He had back pain and went to consult a general medical practitioner on 10 March 1997. He did not recover, and on 1 April 1997 he was admitted to St. Teresa's Hospital for examination and treatment. Physical examination showed that he had spasm of paraspinal muscle without neurological deficit. X-ray of the lumbar spine was unremarkable. MRI of the lumbar spine performed on 4 April 1997 showed prolapsed intervertebral disc at L4/5 and L5/S1 levels. He was treated with physiotherapy and analgesics. His symptoms improved and he was discharged on 4 April 1997.

30. The Plaintiff's condition must have improved a lot. As it could be seen later, after his discharge, he was able to go back to work albeit as an electrician only. He did not return to the hospital for follow-up until 6 December 1997 when he returned and complained of recurrence of back pain for 2 days. Physical examination then showed that he had positive nerve tension sign with radiculopathy of S1 nerve root. He was admitted again to St. Teresa's Hospital on 8 December 1997. His symptoms improved with physiotherapy and he was discharged on 9 December 1997.

31. After the treatment, the Plaintiff's condition must have improved. Again, after discharge, the Plaintiff was able to resume work. However, the Plaintiff had not fully recovered. His condition went bad again in May 1998. On 19 May 1998 he went to consult Dr Lam Yuk Yee Paul, again complaining of back pain and numbness of left leg which increased with prolonged walking. Physical examination showed positive nerve tension sign with weakness of right big toe dorsiflexion. He was advised to undergo surgical decompression. He accepted the advice and was admitted to the hospital on 18 June 1998. Magnetic resonance scan done on 19 June 1998 revealed that he had prolapsed intervertebral disc at L4/5 and L5/S1 levels. Fenestration and discectomy at both levels were performed on 20 June 1998. He was discharged on 28 June 1998.

32. His symptoms improved after the operation. He had a few follow-ups in the clinic of Dr Lam. His last visit was on 8 March 1999. His general complaint was mild back pain and weakness of back muscles and numbness of left leg. He also complained that he could not lift heavy objects.

33. According to the certificate of compensation assessment made by the Commissioner of Labour under the Employees' Compensation Ordinance, since the accident, the Plaintiff had been granted 65 days sick leave between 10 March 1997 and 1 August 1998, excluding 8 days of no pay rest day and 2 days statutory holidays. His sick leave fell between the following periods :

	Period	No. of Days	No Pay Days
(a)	10 Mar 1997 - 13 Mar 1997	4	0
(b)	31 Mar 1997 - 08 April 1997	9	2
(c)	06 Dec 1997	1	0
(d)	08 Dec 1997 - 15 Dec1997	8	1
(e)	19 May 1998 - 22 May 1998	4	0
(f)	2 Jun 1998 - 5 Jun 1998	4	0
(g)	18 Jun 1998 - 1 Aug 1998	45	7

34. In fact by the time of the accident, the work undertaken by the 1st Defendant at the site was towards the completion stage. Soon after the accident, the 1st Defendant completed the job at the site and arranged its workers to work at a site at Mongkok. The Plaintiff also went over to work at Mongkok but only for a very short while. According to him, he found that he had difficulty to cope with the demand of the work of an air conditioning technician. This was because as an air conditioning technician, sometimes he would be required to lift and pull heavy air conditioning pipes. He thus resigned from his job on 1 April 1997. According to Mr Chan of the 1st Defendant, at the time when the Plaintiff tendered his resignation orally to him, the Plaintiff was still dressed up in the patient's clothes of the hospital.

35. In fact, whether he suffered from any injury or not, the Plaintiff had planed to have a holiday in Canada in April 1997. He had this plan at least since the end of 1996. Hence, as soon as he was discharged from the hospital, he went to Canada for the rest of the month of April. From one point of view, it would appear that he would have to resign or to apply for leave from the 1st Defendant anyway to enable him to take this trip. On the evidence available, I am prepared to find that he would have left for Canada on or about 7 April, 1997 which was the next day after his discharge from the hospital. In other words, I would be prepared to find that if there was no accident, he would have worked until 5 April 1997, the 6 April 1997 being a Sunday.

36. Since his return from Canada, he started looking for work as an electrician. Between May 1997 and August 1997, he managed to find job as a casual electrician earning about $700 to $800 per day. In term of wages, that would be higher than what he could earn as an air conditioning technician. However from his witness statement, which he confirmed on oath, he only managed to earn about $35,000 between May and August 1997. This would mean that during the period of May, June and July 1997, there must be quite a number of days that he could not get work.

37. Between 1 August 1997 and 19 December 1998, the Plaintiff was employed by Balfour Beatty Ltd as an electrician-foreman. There was no documentary evidence to show his earnings between the period of 1 August 1997 to 15 February 1998. However, the general evidence of the Plaintiff was that he was earning on average $25,000 per month. Since 15 February 1998, his terms of employment were varied so that he would be paid a daily wage of $1,100 per day. His employment with Balfour Beatty Ltd was terminated on 19 December 1998 when he was served with a notice of termination with 7 days pay in lieu of the 7 days notice required by the terms of employment. However, there was also another letter of employment dated also 19 December 1998 (the very day of the letter of termination of service) issued by Balfour Beatty purporting to employ the Plaintiff as an electrician. On the face of this letter of employment the Plaintiff's employment would commence on 21 December 1998 and he would be paid $827 per day for Monday to Friday and $413.5 per day for the Saturdays. There would still be separate pay for overtime. For sick leave, he would be entitled to 80% of his normal daily wages. In the circumstances, I take it that there was some sort of re-organization of his employment with Balfour so that he was dismissed and immediately re-employed. On his evidence he finally left Balfour Beatty in December 1999.

38. According to the Plaintiff, since he was dismissed by Balfour Beatty Ltd in December 1999, he ceased working for about 2 months because despite his efforts, he was unable to get any job. He resumed working on and off as an electrician or casual worker for contractors since February 1999 till now. The length of period of work with each contractor or employer varied. For the time he worked as an electrician, he earned about $780 per day, while for the time he worked as a casual worker, he earned between $400 to $600 per day. However, the wages of electrician seemed to have gone down since May 2001 from $780 per day to $650 to $700 per day. Since leaving Balfour Beatty Ltd in December 1999, the Plaintiff did not have any long term employment. There were gaps between periods where he did not get work.

39. The Plaintiff's evidence was that even during the time he was employed by the 1st Defendant, he would ask for leave to work as electrician for some other friends who urgently needed his service. He might even do so on some Sundays. However, there was no clear evidence as to whether this was done on any regular basis. Of course, as I have pointed out before, the average wages of electrician were higher than that of air conditioning technician. This is borne out by the fact that from the wage records of his workers disclosed by the 1st Defendant, at all times even up to date, the highest paid worker was only paid a daily wage of $600 per day. That was paid to someone who was employed as a technician on short term basis between March and May 1999 and in January 2000.

40. The Defendants had employed the service of a private investigation company, Take Result Ltd to carry out surveillance on the Plaintiff on 7, 8 & 9 August 2002. The investigating agent had also recorded the Plaintiff's movement on video. Having seen the video myself, I am of the view that the Plaintiff's movement was normal. In fact the Defendants' medical expert, Dr Chun, having seen the video commented that the Plaintiff had appeared to have fully recovered and his disability would be minimal. Dr Lau, the medical expert called by the Plaintiff also agreed with this view.

41. On the question of the general damages of pain and suffering and loss of amenity, I have to bear in mind the injuries suffered by the Plaintiff. Examinations by both Dr Lau and Dr Chun in April and May 2000 revealed that the Plaintiff was still complaining about stiffness of his back, back pain increasing after standing or walking for a long time, and some mild numbness of the left leg. It was also said that because of the accident, the Plaintiff would suffer increased risk of having back problems in the future. However, from the fact that at all times since the accident he was able to work and the number of days that he was certified to be not fit for work was only 75 days, I am of the view that the pain he suffered was not too severe. Furthermore, from the video taken of him in August 2002, it also appeared that he had fully recovered now. In all these circumstances, I would assess the general damages for his pain and suffering and loss of amenity at $200,000.

42. Regarding his loss of earning, the Plaintiff's counsel submitted that I should award the pre-trial loss of earning by first ascertaining the total earning of the Plaintiff since the accident, and then I should ascertain what the Plaintiff should have earned. As to the figure of the sum which the Plaintiff should have earned, it was submitted that I should take the figure of the average monthly earning of the Plaintiff before the accident and on top of that add 5% or 6% to reflect the average increase of wages which the Plaintiff's counsel would submit that he would get for the period since the accident until judgment. It was submitted that I should award the difference between the 2 figures as the pre-trial loss of earning.

43. In the circumstances of this case, I am unable to accept the Plaintiff's counsel's submission on this point. This is because the suggested method was based on the assumption that the Plaintiff would have full employment had he not suffered from the accident. This is simply not true. Say for instance, it is the Plaintiff's evidence that he would have gone to Canada for his long holiday in April 1997 in any event. Hence, even if there was no accident, it is by no means certain that he would not have to resign from his job with the 1st Defendant. By the end of March 1997, the 1st Defendant's job at the Convention Centre was completed and the labour demand of the 1st Defendant might not be that acute. Mr Chan of the 1st Defendant's evidence which I would accept was that he was in fact a bit unhappy with the Plaintiff's being absence from time to time to take up jobs for other persons but because he was in short of suitable persons at the time, he would have to put up with the Plaintiff. Also his evidence was that even if the Plaintiff did not have the accident; he would not have kept him until the day of the trial. Thus, I am of the view that in all probabilities, even without the accident, the Plaintiff would not have been able to continue with his employment with the 1st Defendant until the trial. The overwhelming probabilities would be that even on the scenario of there being no accident, the Plaintiff would still have to start looking for some new jobs sometime after the completion of the project at the Convention Centre, and that there were bound to be gaps in between periods when the Plaintiff would be working for different employers.

44. Furthermore, I am unable to accept the contention that had the Plaintiff stayed on as an air conditioning technician with the 1st Defendant, he would receive an increase in his wages. To support his contention that the Plaintiff would receive an increase in his wages, the Plaintiff's counsel referred me to the increase in wages of the Plaintiff's colleagues, Messrs Fung Tak Ming and Koo Dao Fan. However, it has to be borne in mind that when the Plaintiff was employed by the 1st Defendant, he was employed and paid on the basis of his being a master technician and also a team leader. His pay was the highest of all the workers employed on long term basis. Before the Plaintiff's resignation, Mr Fung Tak Ming was only paid $460 per day as opposed to the Plaintiff's $540. Throughout Mr Fung was still improving and gaining experience. He was made a team leader in 2000 and was paid $520 per day since November 2001. It is plain that his increase in wages was not due to any overall increase in wages for every employee, but rather due to the improvement of his skill and his importance to the 1st Defendant. In the case of Mr Koo Dao Fan, he was paid $450 per day in November 1997 and was paid $500 per day in 2002. He had not reached the level of being made a team leader yet. Thus, although his wages had increased, this was again not due to a general increase of wage level but was due to the improvement of his skill and experience. On the other hand, in the case of the Plaintiff, he had reached the maximum of the pay scale of the 1st Defendant. The Plaintiff was unable to suggest why he should have obtained any increase in his wages had he stayed on with the job.

45. Furthermore, it is common knowledge that since the financial crisis in late 1997, the general trend of the wages in Hong Kong was not on the increase. Rather there was every sign in the construction and connected industries that the wages were going down. For instance, the Plaintiff's daily wage with Balfour Beatty Ltd had been revised down from $1,100 per day to $827 per day in December 1998.

46. I am however prepared to accept that the Plaintiff must have suffered from loss of income on those 65 working days which he was granted sick leave. On this basis, I am prepared to award the loss of income for those days at the rate of his probable income for those days. The total amount of loss of income awarded for these 65 days would be $67,168 ($8,888 + $7,680 + $50,600 = $67,168). The details of the break down of this item of award are as follows :

(a) For 11 days sick leave during the period between 10 March 1997 and 8 April 1997, I find that his average wage per day during that period was $808. Hence, there was a loss of income of $8,888. The figure of $808 was worked out on the basis that from the record of the 1st Defendant for the 2 wage periods of 18 March and 3 April 1997 the 1st Defendant worked for a total of 17 days earning a total sum of $13,743 and this would work out to be about $808 per day.

(b) For the 8 days during the period between 6 December 1997 and 15 December 1997, I found that the Plaintiff daily wage would be $960 per day, thus making a total of $7,680. The figure of $960 per day was worked out on the basis that the Plaintiff was then being employed by Balfour Beatty Ltd earning about $25,000 per month and on the basis of 26 working days for a month.

(c) For the rest of the 46 days sick leave between 19 May 1998 and 1 August 1998, I assess his loss of income at $1,100 per day as evidenced by Balfour Beatty Ltd's letter of 7 March 1998. On this basis, his loss of income would be $50,600.

47. Apart from the 65 days of working day sick leave, I am not prepared to award any loss of income (other than as an element of loss of income capacity as will be considered later). As I have pointed out I am not satisfied that other than the sick leave, there was any actual loss of income. I have pointed out why I would not adopt the contention of the Plaintiff's counsel on this aspect. But even if I were to adopt the approach suggested by the Plaintiff's counsel, it is plain that there is still no loss of income. This is demonstrated by the analysis set out below :

(a) From the figures submitted by the Plaintiff, between the period of August 1997 and mid July 2002, the Plaintiff had in fact earned $1,077,263. The calculation would have to stop in mid August 2002 because there was no evidence to suggest how much he earned since mid August 2002 although it is clear that he must still be in employment. On top of this, from the evidence contained in his witness statement, he also earned $35,000 since his return from Canada and before he joined Balfour Beauty Ltd. Hence, his actual income between May 1997 to mid August 2002 would be $1,112,263.

(b) The Plaintiff's earning from the 1st Defendant during the period between 2 April 1996 and 3 March 1997 was $155,870. I have not taken into account his wage period since 3 March 1997 because he suffered from the accident on 8 March 1997 and thereafter his earning would be affected by the sick leave. Thus, his average income from the 1st Defendant before the accident would be about $14,170 per month only and this amount would have included all the overtime work. Of course, the Plaintiff would contend that he was in fact earning more than $155,870 during the 11 months because he had taken leave to do other jobs for his friends as electrician. I accept the evidence that the Plaintiff had in fact taken leave to do other jobs. However, there was no clear evidence as to the number of days of his other employment. The Plaintiff's evidence was that sometimes he worked for 2 to 3 days for his friends and for some months he did not work for his friends at all. On the basis of the Plaintiff's evidence that since his return from Canada in May 1997 he worked as an electrician earning $700 to $800 per day, I assess that his pre-injury average earning as electrician for his friends to be $750 per day. On this basis and on the assumption that he worked on average 2 days a month for his friends as electrician earning $750 per day, he would have an extra income of $16,500 during this period between 2 April 1996 and 3 March 1997. Thus, his total income for the 11 months before the accident would be $172,370, and his average monthly income would be $15,664. On this basis, the income he would have earned had there been no accident and the Plaintiff staying on with the job during the period between May 1997 and mid August 2002 would be $994,664($15,664 x 63.5 = 994,664). I cannot adopt the suggestion of the Plaintiff's counsel that there should be 68 months loss because I have to stop at the same point of time when evidence of the Plaintiff's actual income ceased to be available.

(c) Thus even if the Plaintiff's wages as an air conditioning technician would be increased by 5% or even 6% since the accident, his notional income for the period up to mid August 2002 would still be not more than $1,054,344 ($994,664 x 1.06 = $1,054,344)

48. Of course, if I were to accede to the method of calculation of loss of earning proposed by the Plaintiff's counsel, I ought not to make any separate award for loss of income for the days of sick leave.

49. As to the award of damages for loss of earning capacity, I note that there was in fact no loss of actual income suffered by the Plaintiff since the time of the accident. This is largely due to the fact that the wages for being an electrician would be higher than that of an air conditioning technician. However, I am also satisfied that there must be some real disadvantage suffered by the Plaintiff because of the fact that hitherto he could have obtained a job as either an electrician or an air conditioning technician but as a result of the accident, he could only be employed as an electrician. This would definitely affect his chance of getting employment, and this would affect his income at the time when there was no full employment and the period between jobs for which he would be unemployed would be longer. In other words, I am satisfied that the Plaintiff definitely has suffered a handicap in the labour market for which he should be compensated.

50. As to the amount of the award, I am bound to take into account that both the work of an electrician and air conditioning technician which the Plaintiff was capable of performing are heavily related to the construction industry. Although there appears to be no reason why the Plaintiff could not apply his skill in these fields to the small consumer or household market, it is plain that the Plaintiff's primary target for jobs was directed towards construction sites or factories. In this sense, the availability of work as an electrician and air conditioning technician would both be tied up with the market condition of the construction industry. Hence, if the job available as an electrician is scarce, the job available as an air conditioning technician is unlikely to be in abundance. Hence, the loss arising from the handicap suffered in the labour market by the Plaintiff is not likely to be large. The Defendants in their Answer to the Revised Statement of Damages are prepared to concede to an award of $100,000 under this head if liability for loss of earning capacity is established. I think this is a generous concession. This concession might well have been made without the benefit of the full evidence now available before me. However, there was no application to amend the figure and the Defendants' counsel in fact also adopted the same figure in his final submission. On the basis of the concession, I am prepared to award $100,000 as damages for loss of earning capacity.

51. I am not prepared to award any damages for loss of future income as I am of the view that any element of loss of future income would have been taken into account by the loss of earning capacity.

52. As to the other items of special damages, I am prepared to award $79,830 as damages for medical expenses; $4,000 as traveling expenses and $7,000 for tonic food.

53. Thus to conclude, the damages awarded on the basis of full liability are :

(a)	General Damages, pain and suffering and loss of amenity	$200,000
(b)	Loss of earning capacity	$100,000
(c)	Loss of income	$67,168
(d)	Other items of special damages under paragraph 50 above	$90,830

54. There will be judgment against both Defendants. There will be interest at the rate of 2% per annum on the amount of $200,000 general damages from the date of the writ until the day of handing down of judgment. There will also be interest at half of the judgment rate on the amounts of $67,168 and $90,830 from 8 March 1997, until the day of handing down of judgment. I do not propose to award any damages for loss of earning capacity. The amounts awarded and where appropriate interests thereon are to be reduced by 50% on account of the Plaintiff's contributory negligence. The Plaintiff had received $228,488 as employee compensation and this amount would have to be deducted from the net amount of my award.

55. I will make a costs order nisi that the Plaintiff is to have the costs of this action and the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.