KWAN SHEK SANG v. CHAN KAM WAH t/a WING WAH AIR-CONDITIONING ENGINEERING (a firm)

HCPI 872/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.872 OF 2000

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J U D G M E N T

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1. The plaintiff claims against the defendant, his employer at the time of the accident, for damages sustained by him when he met with an accident at work on 2 August 1997 when a piece of metal fragment flew into the plaintiff's right eye while the plaintiff was using a portable hand held metal grinder to cut off iron bars.

2. It is common ground that the plaintiff was not wearing any goggles or other form of eye protection when the accident happened. It is also not in dispute that the plaintiff was using a portable metal grinder when he met with this accident. Nor is it disputed that the plaintiff did suffer injury to his right eye as a result of a metal fragment having penetrated his right eyeball.

3. There can be no dispute that had the plaintiff been wearing goggles or some other recognized form of eye protection, that would have prevented the injury to the plaintiff's right eye.

Liability

4. The main factual issue in dispute on the issue of liability is whether goggles were provided by the defendant for use by the plaintiff. The plaintiff's case is that the defendant failed to provide any goggles or other suitable eye protection for use by the plaintiff or, for that matter, any other workers of the defendant. The defendant's case is that the defendant did provide such eye protection in the form of goggles but that the plaintiff and the other workers, for the sake of their own convenience, chose not to wear or use such goggles when grinding or cutting metal.

5. The plaintiff gave evidence that he started to work for the defendant in July 1997. For the first month, he did not work at the defendant's workshop in Chaiwan, but at an outside site and that work did not involve grinding or cutting metal so he had no need for goggles. After that first month, the plaintiff then started to work at the defendant's workshop in Chaiwan and he realised that the defendant did not provide goggles or other form of eye protection. He requested the defendant to buy some goggles but that request of his was ignored. In cross-examination, the plaintiff said that some four days before the accident, he had bought a pair of goggles for his own use costing $6, but after two days' use, the lens had become scratched by the metal fragments hitting it and the pair of goggles had gone missing from the workshop. He then had to turn his head away when grinding metal. He also thought of improvising by using his own sunglasses but found that he had left his sunglasses in Shatin the day before the accident.

6. The plaintiff also called a co-worker, Wong Ning, whose evidence supported the plaintiff's case that the defendant did not supply or provide any goggles or other form of eye protection for use by the defendant's workers.

7. Both the evidence of the plaintiff and Wong Ning was that each of the workers of the defendant had to obtain their own goggles as a means of eye protection. These goggles, made of plastic, are readily available at hardware stores at $6 per pair. However, because they are made of plastic, their lifespan are very short and after some two days of use, the metal fragments hitting the plastic lens would cause the lens to be so scratched that the goggles cannot be used any more and will have to be replaced.

8. On the other hand, the defendant gave evidence that he had provided goggles as eye protection to the workers he employed including the plaintiff but it was his experience that the workers chose not to wear goggles when grinding or cutting metal. According to him this was due to the fact that in the relatively hot working environment, the heat and the sweat from the workers will cause the goggles to mist up and required constant wiping before one can properly see through the lens. This was inconvenient to the workers who would rather run the risk of not wearing goggles.

Finding of fact

9. On that one disputed issue of fact relating to liability in this matter, it need hardly be said but that credibility between the plaintiff and his witness on the one hand, and the credibility of the defendant on the other hand is of vital importance. It is all the more so where that one disputed fact is not in any way supported by any form of written or documentary evidence but is founded solely on the oral evidence between the two conflicting versions given.

10. Having heard all the evidence I found the plaintiff and his witness to be honest and reliable witnesses. Admittedly there were some inconsistencies in their evidence but such inconsistencies come from minor details or from matters which I would not have expected them to have a clear recollection of when giving evidence of an occurrence which happened back in August 1997, well over five years ago.

11. On the other hand, I did not find the defendant to be either honest or reliable for good reasons.

12. When he was first asked by his own counsel in chief where were the goggles which he said he had provided to his workers, his first answer was that they were in the company. It took at least another two questions to elicit from him the answer that the goggles were hanging on a wooden board. Even then there was no further elaboration as to where that wooden board was in relation to the defendant's workshop. Nor were any of this ever put to either the plaintiff or the plaintiff's witness. He struck me as being clearly evasive when giving these answers.

13. The defendant's evidence was that the last time before this accident to the plaintiff when he had bought goggles for use by his workers was about one or two months before that accident, yet no receipts were produced to support that evidence. Nor did the defendant produce any goggles in evidence as being the kind of goggles which he provided to his workers for their use.

14. When asked in cross-examination as to the cost of a pair of goggles, the defendant could only say "about ten odd dollars each pair". He was not able to give a more precise figure for the cost of the goggles which he claims to have bought for use by his workers. In contrast, both the plaintiff and his witness had no hesitation saying that plastic goggles cost $6 per pair at any hardware shop.

15. However, the most significant piece of evidence which destroyed much if not all of the credibility of the defendant relates to a certificate written in Chinese on the letterhead of the defendant's company dated 20 September 1997 certifying that the plaintiff's daily wage to be $600 and that the plaintiff has been compensated $480 for the sick leave given for 18 September 1997. In respect of this document, the defendant's evidence was that it was signed by the plaintiff in his presence after he had written it out. This is disputed by the plaintiff. There appears on that document what appears to be the signature of the plaintiff in the form of the plaintiff's name and also the plaintiff's I.D. card number written underneath.

16. When I compared that to the signature of the plaintiff as contained in his witness statements and also the signature of the plaintiff which he was asked to make when in the witness box (Exhibit P1), it is abundantly clear that the signature on the certificate dated 20 September 1997 was not made by the plaintiff.

17. In the light of this evidence the only conclusion that I can come to is that the defendant had deliberately lied as to the fact that the plaintiff had signed that certificate in his presence.

18. I find as a fact that the plaintiff was not provided any form of eye protection by the defendant and so was not wearing any goggles or other form of eye protection when the accident happened.

19. I also accept the evidence of both the plaintiff and his witness that at times they had to get their own goggles for use in their work because they were not provided such goggles by the defendant. From this finding I can and do draw the inference (from the facts as found by me) and make the further finding that if goggles had been provided by the defendant, the plaintiff would have used them when cutting or grinding metal at the time of the accident.

20. In this respect I reject the evidence of the defendant that his workers chose not to use goggles when cutting or grinding metal in so far as that evidence relate to the plaintiff in relation to this accident.

Liability of the defendant

21. On the above findings, the failure of the defendant as the employer of the plaintiff to provide goggles or other form of eye protection to the plaintiff at the time of the accident, is a breach of statutory duty in that he had failed to comply with Regulation 5 of the Factories and Industrial Undertakings (Protection of Eyes) Regulations.

22. Quite apart form the breach of statutory duty, the defendant is also in breach of his common law duty to the plaintiff which was to ensure that not only goggles were provided but also that they were used, and if necessary, by strict orders followed by reasonable supervision.

23. The failure of the defendant in both these respects makes it such that there can be no question but that the defendant must be liable to the plaintiff in both negligence and breach of statutory duty.

Contributory negligence

24. Contributory negligence of the plaintiff has been pleaded in the Defence but has not been pursued in the final submission by defence counsel.

25. Be that as it may, I will still have to deal with it since it has not be abandoned either.

26. The defendant's duty as an employer to provide goggles or some suitable form of eye protection to the plaintiff is a duty which cannot be delegated, including delegation to the plaintiff. Therefore the defendant cannot be heard to say, by way of defence, that the plaintiff could well have obtained his own eye protection even if the defendant failed to provide same. By the same token, the defendant cannot be heard to say the same to support a case of contributory negligence. To allow that would whittle down the rule that an employer has to provide a safe system or method of work to his employees is a duty which cannot be delegated.

27. Moreover, I fully endorse that statement of Paull J in the case of Nolan v. Dental Manufacturing Co. Ltd [1958] 1 WLR 936 at 942 where he said :

"The question of contributory negligence has been raised but, in my judgment, contributory negligence does not arise in this action; no goggles having been provided, the plaintiff cannot be said to have been negligent in not using non-existent goggles."

What was said by Paull J in that case equally applies to the present case.

28. For these reasons, I do not find that there was any contributory negligence on the part of the plaintiff.

Decision

29. I find therefore that the defendant was fully liable to the plaintiff in this case.

Quantum

30. I turn now to deal with the question of damages.

Injuries and treatment

31. The accident took place some time between 1.30 p.m. and 1.45 p.m. on 2 August 1997. At that time typhoon signal no.8 was hoisted. The plaintiff and other workers stopped work at 2 p.m. Because of the typhoon, the plaintiff went back to his home in Shaukiwan by M.T.R.

32. According to the plaintiff, later that same evening, at about 9.30 p.m. when the winds became weaker, the plaintiff took a taxi to the Accident and Emergency Unit of the Eastern Hospital where he was examined by doctors for the injury to his right eye.

33. However, according to the medical report of Dr Choi Sing Yim of the Pamela Youde Nethersole Eastern Hospital, he examined the plaintiff at 12.12 hours on 3 August 1997 at the A&E Department of that hospital.

34. No point has been taken by the parties as to the apparent difference in time as to the initial examination of the plaintiff at the Accident and Emergency Department and I take that to be as a result of faulty memory as to date and time.

35. On examination, the plaintiff was found to have a metallic foreign body embedded on the left half of his right cornea. The plaintiff was then urgently referred to a specialist eye clinic for treatment.

36. Next there is a report from Dr C.C. Wong of the Tang Chi Ngong Ophthalmic Clinic stating that examination showed the plaintiff to have right corneal foreign body and removal of that foreign body was done. It goes on to state that when the plaintiff was last seen on 30 April 1999, examination revealed a right corneal paraxial scar and the vision of the right eye was 6/12. The permanent visual impairment of the right eye was 15%.

37. The plaintiff was examined by Dr Patrick C.P. Ho on 9 March and 14 March 2000. In his report dated 7 April 2000, Dr Ho stated that the plaintiff suffered a corneal opacity in his right eye resulting from that accident.

38. His examination indicated that the plaintiff's impaired right eye central vision to be 20/80 best corrected. The impaired peripheral vision of the right eye suggests that half of the left visual field was missing in the right eye. There was also impaired colour vision in the right eye. The plaintiff's left eye was found to be normal in all respects.

39. However, at the same time Dr Ho, by a normal fundus angiographic study, ruled out largely the presence of any lesion in the macula area which could impair the plaintiff's central vision or colour vision. An MRI (Magnetic Resonance Imaging) of the plaintiff's brain and optic nerves also ruled out lesions in the central nervous system and other extra ocular lesions which could possibly account for such a level of visual dysfunction.

40. In giving his opinion on the matter, Dr Ho states that in his experience, it is very unusual that a corneal scar of the size detected in the plaintiff's right eye can result in such poor central vision, loss of colour vision and a visual field defect. Such dysfunctions are quite incompatible and cannot be accounted for by the presence of a corneal scar alone. Dr Ho further states that the plaintiff's corneal scar "is more compatible with a vision around 6/12 or 20/40 or 0.5 which was what Dr C.C. Wong found on 30 April 1999 according to his medical report dated 30 April 1999."

41. Dr Ho also expressed his opinion that the corneal scar is permanent in nature.

42. That on the basis of the small paraxial scar alone, the plaintiff should be able to return to his pre-accident employment and the sick leave of two to three days would be reasonable.

43. However, if one takes account of the basis also of a corrected vision of 6/12 or 20/40 in the right eye, then Dr Ho was of the opinion that the plaintiff would be suitable for any job which requires only good vision in one eye, namely, jobs not involving depth perception, distance judgment and a full view of vision.

44. There is also a medical report from Dr Paul M.K. Cheung, an ophthalmologist instructed by the defendants. He examined the plaintiff on 7 March 2001.

45. The report of Dr Cheung starts off by stating that the plaintiff was co-operative when examined on his left eye, but was not doing his best when examined on the right eye.

46. In conducting the examination, Dr Cheung in his report states that the plaintiff was asked to look at the chart with both eyes open through lenses. However, unknown to the plaintiff the lens for the plaintiff's left eye was deliberately blurred but the plaintiff was made to believe that he was using his left eye (the good eye) when in fact he was reading the chart with his right eye (the injured eye). From such an examination, Dr Cheung came to the finding that the plaintiff's best corrected visual acuity in his right eye was 6/6 or 20/20 which is normal vision.

47. Dr Cheung came to the conclusion that while the plaintiff did have a very faint scar on his right cornea, that would not have any adverse effect on the plaintiff's vision in the daytime. At night or in dark places, the scar may cause a mild degree of glare but the eyesight would still be good. Moreover, he states that the plaintiff's complaint of floaters (dark clouds) in the right eye was not substantiated in the examination conducted.

48. Dr Cheung further states that the working ability of the plaintiff is not affected by his disability and can return to his pre-accident job. Moreover, he considers that the condition of the plaintiff's right eye is now stable and permanent. No deterioration is expected and no further treatment required.

49. There is no dispute as to the injury sustained by the plaintiff in the form of a paraxial corneal scar. The dispute between the parties is only as to the degree of disability resulting from such a scar.

50. I have no hesitation in preferring in full the opinion expressed by Dr Ho as opposed to that of Dr Cheung. Dr Ho has fairly and accurately assessed the medical circumstances relating to the plaintiff in the way that an expert witness is supposed to without allowing the plaintiff to dictate to him any of the opinion which he has expressed.

51. Moreover, that assessment by Dr Ho is supported by a similar assessment of Dr C.C. Wong, the government doctor at Tang Chi Ngong Hospital, a wholly independent witness.

52. In so far as Dr Cheung's opinion is concerned, I cannot accept, no matter how faint or small the corneal scar may be, that it cannot have any adverse effect on the plaintiff's normal daily vision.

Pain, suffering and loss of amenities

53. The plaintiff claims for $350,000 in final submission under this head of damage. On the other hand the defendant suggests in final submission that $100,000 would be reasonable on the basis of the medical report given by Dr Cheung.

54. Whilst I accept the opinion given by Dr Ho and Dr C.C. Wong as opposed to that expressed by Dr Cheung, at the same time I take the view that such disability of the plaintiff, while it may have some effect on his everyday life, in that he will have difficulty in perception of depth and judging distances, it is not sufficient as a disability to put the plaintiff into that category of "Serious Injury" as it is defined in the case of Lee Ting Lam.

55. Having considered the range of awards contained in those local authorities to which I have been referred, I am of the view that the disability to this plaintiff resulting from the injury to his right eye would be towards the lower end of the range of awards made in the eye injury cases cited to me in submission.

56. A reasonable award to this plaintiff for his injury and disability would be $280,000.

Pre-trial loss of earnings

57. The first dispute between the parties is the pre-accident monthly earnings of the plaintiff. It is common ground that the plaintiff's daily wages was $600. The plaintiff claims to work 30 days a month while the defendant alleges that he only worked 26 days a month.

58. There is however evidence before me in the form of a certificate signed by the defendant and dated 28 June 1999 to the effect that for the month of July 1997, the plaintiff (who started work with the defendant on 7 July 1997) worked throughout the whole of that month except from 7 July to the end of the month except for the 20th and 21st of the month. That is indicative of the fact that the plaintiff worked, as he claimed, on Sundays as well. But it also shows that the plaintiff did take a couple of days off that month.

59. From this evidence, I draw the inference that on average, the plaintiff would work 28 days in a month. That gives the pre-accident earnings of the plaintiff to be $16,800.

60. The second matter in dispute between the parties is as to whether the plaintiff was dismissed by the defendant in September 1997 after he had this accident, as claimed by the plaintiff. I accept the evidence of the plaintiff in this respect. I also accept the plaintiff's evidence that he was dismissed was that after returning to work for the defendant, there was an occasion when he nearly fell into a hole after tripping over some angled iron. This confirms the medical opinion of Dr Ho that there was some defect in the plaintiff's vision.

61. It is the plaintiff's case (as pleaded in the Revised Statement of Damages) that the plaintiff, after he was dismissed by the defendant, was able to work as a casual manual labourer between September 1997 and April 1998 but thereafter was not able to work due to his poor vision.

62. That is not entirely consistent with the medical opinion expressed in this case. That medical opinion says that the plaintiff can carry out work which did not require depth perception and judgment of distance.

63. I find as a fact that while his pre-accident work probably involved depth perception and/or judgment of distance, especially if he had to use grinders and cutters to grind and cut metal, the plaintiff was able to obtain casual manual labour which paid $450 per day even as early as September 1997 which was within the same month as his dismissal by the defendant. On this basis, I find that there was partial loss of earnings by the plaintiff for the pre-trial period at $150 per day.

64. While I accept that the plaintiff did work 28 days a month before the accident, in the light of the downturn in the construction industry, it would not be reasonable to assume that 28 work-days a month to continue to present. For present it would more likely be a 24 work-day month. The average monthly loss for the pre-trial period comes to $3,900.

65. Since his dismissal by the defendant to date, a period of 68 months has elapsed. Therefore, the pre-trial loss of earnings comes to $265,200.00 totally.

Future loss of earnings

66. The plaintiff is now 45 years old.

67. The medical opinion suggests that the injury and disability to the plaintiff would be permanent. As such he will undoubtedly suffer loss of future earnings.

68. For the calculation of future loss of earnings, I shall continue to adopt a daily loss of $150, and on the basis of a 24-day month, I make out the multiplicand to be $3,600 per month.

69. As for the multiplier, taking into account his age and the nature of his pre-accident work, I am of the view that a reasonable multiplier, having regard to multipliers adopted in previous assessments for claimants of a similar age group as the plaintiff here and similar nature of work, would be 9. This will give the total future loss of earnings to be $388,800.00.

Loss of earnings capacity

70. Taking into account all the circumstances of this case and in particular the disability faced by the plaintiff and the kinds of job to which he is now limited, I am of the view that the loss of earnings capacity can only be minimal, albeit that I do accept there will be some loss of earnings capacity.

71. I would assess a reasonable compensation to the plaintiff under this head to be $30,000.00

Special damages

72. Medical expenses and travelling expenses are agreed at $1,625.00 under this head.

73. The one item of special damages in dispute is that of tonic food. In that respect, the plaintiff $7,000 but counsel in final submission says that the plaintiff is ready to accept a lower sum of $5,000. The defendant says that $2,000 should be reasonable.

74. No receipts have been produced by the plaintiff for tonic food.

75. Taking into account the fact that the plaintiff was not hospitalized nor had he to undergo any kind of rehabilitation or recuperation period, and doing the best I can in the circumstances, I shall make an award of $3,000 for tonic food.

76. The total of special damages therefore comes to $4,625.00

Interests

77. In so far as interests is concerned, there is an application by the defendant that the plaintiff not be entitled to interests for a two-year period between 1 February 2001 to 3 March 2003 on the basis that there was a delay in setting down the case for trial.

78. On 1 February 2001 Master Cannon had ordered that this case be set down for trial within 72 days in the Running List not to be warned before 1 May 2001. That was not done and it was only on 3 March 2003 (pursuant to a summons taken out by the plaintiff) that Master Kwan gave leave to the plaintiff to set down out of time which led to the trial before me.

79. The plaintiff oppose this application to be deprived of interests for that two years of delay by submitting that the cause of such delay sprung from the defendant for when the defendant served his witness statement on the plaintiff's solicitors on the afternoon of 1 February 2001 shortly before the checklist hearing before Master Cannon that same afternoon, unknown to the plaintiff's solicitors, the contents of that witness statement of the defendant disputed the accident to the plaintiff such that after the order for setting down given by Master Cannon, the plaintiff's solicitors, on the advice from counsel, had to seek out the witness Wong Ning. It was not until July 2002 that Wong Ning was located and a statement taken from him.

80. The plaintiff's solicitors also attempted to explain away a further delay by saying that in October 2002 the plaintiff's expert, Dr Ho, having been appointed to the post of Secretary for Home Affairs of the HKSAR Government indicated to the plaintiff's solicitors his unwillingness to give evidence as an expert witness (although he had prepared the medical report). This led to a further delay which was finally resolved when Master Kwan ordered that the expert reports from both parties be adduced into evidence without calling the makers thereof.

81. Firstly, I do not accept the reasons advanced by the plaintiff for the delay in either case. Looking at the pleaded Defence, paragraph 3 clearly admitted the accident to the plaintiff. I cannot see how the witness statement of the defendant can change an unequivocal admission made in the Defence.

82. As for the unwillingness of Dr Ho to give evidence for the plaintiff, that could easily have been overcome by issuing a subpoena.

83. On the other hand, the application of the defendant for the delay in setting down does not hold water either. The complaint by the defendant of delay relates to the plaintiff's failure to set the case down as ordered by Master Cannon. However Order 34, rule 2(1) clearly gives the defendant the right to set the case down if the plaintiff fails to set it down within the period fixed for setting down by Master Cannon. Alternatively the defendant may apply for the case to be dismissed for want of prosecution. In this case, nothing was done by the defendant along these lines when the plaintiff failed to set it down as ordered by Master Cannon. The defendant cannot now be heard to complain of delay.

84. In my view both parties (or more correctly their legal advisors) were to blame for the delay in bringing this matter to trial. As such it would be wrong for me to accede to the defendant's application thereby penalizing the plaintiff.

85. Interests would accordingly be awarded at 2% p.a. for general damages for PSLA from the date of the Writ. As for special damages and pre-trial loss of earnings, they will carry interests at half judgment rate from the day of the accident.

Conclusion

86. In summary the damages assessed are as follows :

PSLA	$280,000
Pre-trial loss of earnings	$265,200
Future loss of earnings	$388,800
Loss of earnings capacity	$30,000
Other special damages	$4,625
Interests on PSLA	$16,333
Interests on Pre-trial loss and special damages	$62,959
Sub-total :	$1,047,917

From this amount of $1,047,917 will have to be deducted the amount of the employees' compensation already paid and received by the plaintiff in the sum of $221,984. That gives a final figure of $825,933.

87. Accordingly, there will be judgment to the plaintiff in the amount of $825,933.

Costs

88. There will be a costs order nisi that the defendant do pay to the plaintiff the costs of the plaintiff's action to be taxed if not agreed and that the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.