CHAN TO NING v. TSUI YU MING t/a MING TAK ELECTRICAL CO AND ANOTHER

HCPI 849/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 849 OF 2009

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J U D G M E N T

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1. In this action, the Plaintiff, Mr Chan To Ning (“Mr Chan”), claims damages for personal injuries sustained and other consequential loss and damage suffered by him as a result of an accident (“Accident”) that happened to him in the course of work on 11 November 2008 at Workshop Unit A1, 6/F, Sunking Industry Building, 1-7 Ching Chuen Road, Tai Wai, New Territories (“Site”).

2. Mr Chan so claims against

(1)  the 1^st Defendant and his then employer, Mr Tsui Yu Ming (“Mr Tsui”) trading as Ming Tak Electrical Co (“Ming Tak”);

(2) the 2^nd Defendant and Mr Tsui’s principal contractor, Mr Cheng Shing Chau (“Mr S C Cheng”) trading as Wing Luen Air-Cond Engineering Co (“Wing Luen”).

THE WITNESSES AND ASSESSMENT OF THEIR EVIDENCE

3. A total of 5 witnesses gave evidence.  In addition to the 3 parties, Mr Cheng Tung Chau (“Mr T C Cheng”), the foreman/supervisor overseeing the works at the Site, and Mr Choy Kam Yau (“Mr Choy”), a co-worker of Mr Chan at the Site, also testified for the defence.

4. Mr Chan on the one hand and the other 4 gentlemen on the other contradicted each other, and were cross-examined, on a number of points going to different issues of liability and quantum.  Some of the points contended are relevant while some are of peripheral importance (save that a conclusion one way or another may perhaps function in generating an impression of the general credibility of the witnesses), or even immaterial, to the real questions that I have to decide.  I have reviewed and considered all points of difference pursued in cross-examination and addressed in closing submissions by Counsel.  However, to maintain the focus of this judgment, and with no disrespect to Counsel, I do not propose to resolve each and every controversy between the witnesses and will address only those having a material effect on the findings that I have to make.

5. Further, in choosing whose evidence to accept on a particular question of fact, unless otherwise indicated, it is unnecessary for me to resort to, and I have not relied on, the impression that one may form as to the overall credibility of the witnesses.  I prefer to assess the veracity of the witnesses on each issue individually insofar as it is possible.  In so doing, I have looked to and been guided by the inherently plausibility of the witnesses’ accounts and the congruity of such accounts with the undisputed/indisputable facts and circumstances of the case.

THE ACCIDENT

Chain of contractors at the Site

6. There is no dispute that:

(1)  Wing Luen was engaged by the owner of the Site (which was used as a warehouse) to renovate the same.  The scope of works (“Works”) included the removal of a cockloft (the construction of which was unauthorised building work) (“Cockloft”), internal wall plastering and painting, drainage work, installation of lighting and associated electricity work.  As shown by the invoice dated 21 October 2008 issued by Wing Luen to the owner, the total contract price was $110,000.

(2)  Wing Luen in turn subcontracted the Works to Ming Tak (“Sub-contract”).  As evidenced by Ming Tak’s quotation dated 11 September 2008 to Wing Luen, the Sub-contract price was $80,000.  Having entered into the Sub-contract, Wing Luen left the execution of the Works entirely to Ming Tak.

(3)  In performance of the Sub-contract, Ming Tak engaged Mr T C Cheng (who happens to be Mr S C Cheng’s elder brother) as foreman/supervisor and entrusted to him full responsibility for the Works, including the recruitment of workers required for such purpose and their supervision.  Having entrusted the execution of the Sub-contract to Mr T C Cheng, Mr Tsui himself ceased to be involved in the matter in any real sense.  

Mr Chan’s employment with Mr Tsui

7. It is common ground that in about mid October 2008, Mr Chan was engaged by Mr T C Cheng (acting for and on behalf of Ming Tak) to work at the Site.  He reported duty on 20 October 2008.  His working hours were from 9 am to 5 pm.  He worked under the instruction and supervision of Mr T C Cheng. 

8. Although Ming Tak admits that Mr Chan was in its employ for the execution of the Sub-contract, dispute has arisen between Mr Chan and Ming Tak as to:

(1)  whether Mr Chan was engaged as a demolition worker (清拆工人) (responsible for the demolition of, inter alia, the Cockloft) or just an odd job worker (什工) (whose main job duty was to clear the debris produced by the demolition); and

(2)  whether his daily wages was $750 (as contended by Mr Chan) or $300 (as contended by Ming Tak).

The answers to these questions will impact upon both liability and quantum and will be dealt with below.

9. In addition to Mr Chan, a Mr Wong Chi Kwong (“Mr Wong”) and Mr Choy also worked at the Site. 

The Cockloft

10. The following details regarding the structure and construction of the Cockloft are taken from an Accident Report dated 26 March 2009 by Mr Leung Chi Keung, Occupational Safety Officer of the Labour Department (“Accident Report”).  Neither Defendants have adduced any evidence to rebut or challenge the contents or conclusions of the Accident Report, which is therefore adduced as expert evidence as to liability without the need for Mr Leung to attend Court.  For ease of reference, I attach to this Judgment marked “Sketch 1” a sketch annexed to Mr Chan’s declaration dated 15 December 2008 to the Labour Department showing the front view of the Cockloft before its demolition.

11. The Cockloft measured 12.67 metres in length and 3.23 metres in width.  The headroom above and underneath the floor slab of the Cockloft (which was 0.12 metre thick and constructed of reinforced concrete) (“Slab”) was respectively 2.18 metres and 2.5 metres.  As shown by Sketch 1, the Slab was supported by 2 brick walls and an I-beam structure, which had the effect of partitioning the space underneath the Cockloft into 3 compartments which, for ease of reference, are numbered 1 to 3 (“Compartment 1”, “Compartment 2” and “Compartment 3” respectively).  The Slab was constructed on the brick walls only.

12. Focusing on that portion of the Slab that was above Compartment 3, it was about 4.48 metres wide including the left and right brick walls.  Save for the support derived from resting on the 3 vertical brick walls, i.e. the left, right and rear brick walls, this part of the Slab was not anchored to the left brick wall or any structural elements.

Evidence and findings on the occurrence of the Accident

13. The Defendants do not admit how the Accident occurred.

14. There was no witness to the Accident.  Mr T C Cheng was out purchasing materials.  Mr Choy, though present at the Site, was attending to his own work and did not pay attention to Mr Chan.  Mr Wong has not been called to testify and it is unclear on the evidence what he was doing at the material time.  That being the case, save for one particular aspect which will be dealt with in paragraphs 17 and 60 to 65 below, neither of the Defendants are in a position to advance any positive case to contradict Mr Chan’s account of the Accident, as set out in paragraphs 15 to 17 below.  Hence, I see no reason not to accept Mr Chan’s evidence in this connection, particularly when it is consistent with the observations of the Occupational Safety Officers of the Labour Department who attended the scene at 12:20 pm on the same day to investigate the Accident, as recorded in the Accident Report.

15. On 11 November 2008, Mr Chan started work at the Site at about 9 am.  By then, the demolition of the Cockloft had been undertaken for about 10 working days or so.  The Slab above Compartments 1 and 2 had already been completely dismantled and removed.  So had the right portion of the Slab above Compartment 3, with the reinforced steel bars also cut. So had the front upper portion of the vertical right brick wall of Compartment 3 (according to the photographs at pages 481, 487, 493, 505, 506 and 507 of the Trial Bundles).

16. As illustrated in “Sketch 2” attached to this Judgment (which depicts the front view of what was left of the Cockloft immediately prior to the Accident)[1], Mr Chan climbed up onto, and stood on, the remaining portion of the Slab and continued with the demolition of the same with the use of a large electric portable concrete breaker.  No falsework or other structure was in place to temporarily support the Slab to be demolished.  Apart from a safety helmet, Mr Chan was not wearing any other protective equipment or gear such as a safety belt or eye protector. 

17. Mr Chan started to work on the remaining portion of the Slab from the part that rested on the rear brick wall.  When Mr Patrick D Lim, Counsel for Ming Tak, questions that this was unsafe and therefore wrong, Mr Chan explains that part of the remaining Slab against the rear brick wall had already been dismantled the day before and that he was simply resuming the task from where it was left.  Mr T C Cheng disagreed. I will deal with this controversy below.  For the time being, it is sufficient to note that by 11 am, the entire portion of the remaining Slab that rested on the rear brick wall had been completely chipped away.

18. At around 11 am, all of a sudden, the whole of the remaining Slab on which Mr Chan was standing tilted and collapsed.  Mr Chan fell from the tilted Slab to the floor on which concrete fragments had spread over.  The falling distance was about 2.62 metres. Upon landing on the floor, Mr Chan was further struck by the collapsed Slab. The collapsed Slab was then turned upside-down before it rested on the accumulated concrete fragments, forming a gap inside which Mr Chan was trapped until he was rescued by the fire brigade.  For ease of reference, I attach to this Judgment marked “Sketch 3” another sketch attached to the Accident Report illustrating how the Accident happened.

Evidence and findings as to the factual cause(s) of the Accident and how it could have been avoided

19. As stated above, the Accident Report is admitted without any challenge to either its contents or conclusions.

20. On the basis of the Accident Report, I have no difficulty in finding that the remaining Slab collapsed because the right and rear brick walls at Compartment 3 no longer provided it with any support.  The remaining Slab, then a cantilever-liked structure, was supported only by the left brick wall with a short return and without any anchorage in the wall or any structure.  However, the left brick wall could not withstand the loading of the Slab, calculated to be 868 kg in weight.  As all the loading force was concentrated on the left brick wall, once the brick wall was sheared to breakage point, the Slab lost its balance under gravity and tilted to cause Mr Chan to fall from the tilted Slab to the floor.  In this regard, a row of bricks at the top side of the left brick wall were broken.  These broken bricks were detached from the wall and adhered to the left edge of the collapsed Slab.

21. I further find, again in reliance on the Accident Report, that the Accident could have been avoided by taking, and that it happened as a result of a failure to take, the following measures:

(1)  the conduct of a risk assessment to identify all the hazards involved and the development of a safe working method (incorporating precautionary measures that would guard against the risks of the collapse of the Slab and of workers falling from height in the event of a collapse of the Slab) prior to the commencement of the demolition of the Cockloft;

(2)  the provision of information, and instruction and training about such hazards and safe working method to the workers before commencing the demolition; and

(3)  the adherence to the safe working method throughout the work under the supervision of a person competent to do so.

22. More particularly, I find that, having regard to the structure and construction of the Cockloft, a safe working method for its demolition should include at least the following:

(1)  Suitable temporary structure such as falsework should be erected to support the Slab to be demolished prior to the commencement of work.

(2)  The “Top-Down” method, i.e. the removal of the Slab before the removal of the supporting brick walls, should be adopted.

(3)  Further, the concrete breaking work should be started at the mid-span of the Slab and worked towards the supporting walls.

(4)  The reinforced steel bars of the Slab should not be cut but should be kept intact at their original positions until the entire Slab has been broken up and removed.

(5)  The brick walls supporting the Slab should also be kept intact until the complete demolition of the Slab.  Only then should those walls be removed, layer-by-layer from top to bottom with each layer not exceeding 300 mm in thickness.

(6)  When removing the brick walls, workers should stand on and work from suitable working platforms.

(7)  To guard against the risk of falling despite the aforesaid precautions, workers should be provided with, and they should wear, safety belts attaching to a horizontal lifeline.

LIABILITY

Mr Chan’s case on liability

23. Mr Chan contends that the Accident was caused by:

(1)  Ming Tak’s breach of the implied terms of its contract of employment with, and/or its duties as the employer of, Mr Chan;[2]

(2)  the Defendants’ negligence;

(3)  breaches of statutory duties[3]

(A)  by both the Defendants as proprietors of the Site under ss 6A(1) and (2)(a), (b), (c), (d) and (e) of the Factories and Industrial Undertakings Ordinance (Cap 59) (“FIUO”);

(B)  by both the Defendants as the contractors responsible for the Site under regulations 38A(1)(a), (b) and (c), (2) and (3), 38AA(1)(a), (b) and (c), (2) and (3), 38B(1) and (2), 38C and 38E of the Construction Site (Safety) Regulations (Cap 59I) (“CSSR”);

(C)  by Ming Tak as Mr Chan’s employer under ss 6(1) and (2)(a), (b), (c), (d) and (e) of the Occupational Safety and Health Ordinance (Cap 509) (“OSHO”);

(D)  by both the Defendants as occupiers of the Site under s 7 of OSHO; and

(E)  a breach of the common duty of care owed by both the Defendants as occupiers of the Site to Mr Chan as a lawful visitor thereto under the Occupiers’ Liability Ordinance (Cap 314) (“OLO”).

24. The Defendants’ aforesaid breaches were put in numerous different ways by way of particulars of paragraphs 41 to 52 of the Statement of Claim which I do not need to repeat as they are based largely upon the findings and conclusions of the Accident Report,[4] which have already being set out in paragraphs 20 to 22 above.

25. In support of his case on liability, Mr Chan also pleads reliance on the following convictions (“Convictions”) of:

(1)  Mr Tsui trading as Ming Tak on his own guilty pleas of the following 4 offences:[5]

(A)  failure to provide and maintain a safe system of work for the demolition of the Cockloft contrary to ss 6A(1), (2)(a) and (3) of the FIUO;

(B)  failure to provide necessary information, instruction and training for the health and safety at work of Mr Chan at the Site contrary to ss 6A(1), (2)(c) and (3) of the FIUO;

(C)  failure to take adequate steps to prevent a worker carrying out demolition work on the Slab from falling from a height of 2 metres or more contrary to regulations 38B(1A), 68(1)(a) and 68(2)(g) of the CSSR;

(D)  failure to provide approved eye protectors for the use of every person employed in the breaking of concrete by means of a electric portable tool contrary to regulations 5 and 9(1) of the Factories and Industrial Undertakings (Protection of Eyes) Regulations (Cap 59S) (“FIU(PE)R”); and

(2)  Mr S C Cheng trading as Wing Luen on his own guilty pleas of the following 2 offences:

(A)  failure to take adequate steps to prevent a person on the Site from falling a height of 2 metres or more contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the CSSR; and

(E)  failure to provide approved eye protectors for the use of every person employed in the breaking of concrete by means of a electric portable tool contrary to regulations 5 and 9(1) of the FIU(PE)R.

26. Mr Chan relies on the Convictions and the facts admitted by the Defendants in support thereof to establish that the Defendants were the proprietors/contractors of the Site; that Mr Chan was Ming Tak’s employee at the Site; that the Accident occurred at the time and place and in the manner recalled by Mr Chan and that it was caused by the negligence and/or breaches of the relevant statutory duties of the Defendants.

27. In this regard, the admitted facts included the following:

(1)  that Mr Tsui was the contractor who had direct control over the Site as well as the proprietor of an industrial undertaking, i.e. the Works, where concrete breaking work was in progress;

(2)  that Mr S C Cheng was the contractor responsible for the Site as well as the proprietor of an industrial undertaking, i.e. the Works, where concrete breaking work was in progress;

(3)  that Mr Chan was a demolition worker;

(4)  that Mr Chan was assigned to demolish the Cockloft and had been doing so for 10 days;

(5)  that on the day of the Accident, Mr Chan continued with the demolition of the remaining portion of the Slab at Compartment 3;

(6)  that Mr Chan did not wear a safety belt and no anchorage device or fall arrestor was found;

(7)  that no eye protectors were provided to Mr Chan;

(8)  that no risk assessment had been conducted or safe working method devised before the commencement of the demolition of the Cockloft;

(9)  that Mr Chan had no information on the structure of the Cockloft, nor had he received any work instruction or specific training in safety precautions before he started the demolition work.

28. For the sake of completeness, Mr Chan also prays in aid the doctrine of res ipsa loquitur. This can be disposed of very shortly.  This maxim only applies in cases where the precise cause of the incident is unexplained or cannot be shown but it is more probable than it was the result of an act or omission of the defendant that amounted to a failure to take proper care of the plaintiff.  In view of the matters set out in paragraphs 20 to 22 above, this is not such a case at all.

The grounds of defence on liability

29. In defence on liability, Ming Tak contends on pleading and in evidence (given by Mr T C Cheng and Mr Choy) and closing submissions that:

(1)  Mr Chan was in fact not employed as a demolition worker at the Site.  Instead, he was an odd job labourer whose job duty was not to demolish the Cockloft, but to attend to the clearance of the debris generated by the demolition work handled by others.  Hence, insofar as Mr Chan was concerned, it was not necessary for Ming Tak to provide him with any information, training, instruction or safety equipment or protective device reasonably required for the demolition of the Cockloft.

(2)  Mr T C Cheng had, on the day before the Accident, given specific instructions to the workers at the Site that the demolition of the Cockloft should halt temporarily on the following day.  Therefore, Chan was acting in disobedience of his supervisor’s order in undertaking the demolition of the remaining Slab at Compartment 3 on 11 November 2008.

(3)  The manner in which Mr Chan demolished the remaining Slab at Compartment 3 on 11 November 2008 was unsafe and causative of the collapse of the same.

(4)  Mr Chan was therefore at the very least contributorily negligent.

30. Insofar as its aforesaid criminal convictions and the facts admitted by it in support thereof are inconsistent with these grounds of defence, Ming Tak applied for leave to adduce Mr Tsui’s Supplemental Witness Statement dated 24 February 2012 to the effect that he pleaded guilty without a proper understanding of the contents of the summonses or the facts in support of the same and with to view to avoiding any further trouble entailed by a trial.  I granted leave because such late evidence had already been foreshadowed by paragraph 28 of Ming Tak’s Defence so that Mr Chan was not taken by surprise and thereby prejudiced.

31. On liability, a similar attempt to neutralise its aforesaid convictions was made on behalf of Wing Luen, but eventually not followed through upon objection.  Unlike Ming Tak, Wing Luen simply asserts (without putting forward any explanation or positive case) in paragraph 21 of its Defence that the convictions are irrelevant to the issues in this action.

Analysis of and conclusions on liability

32. By virtue of s 62(2)(a) of the Evidence Ordinance (Cap 8), the Convictions shift to the Defendants the legal burden to disprove the offences in respect of which the Convictions were entered. 

33. In deciding whether the Defendants have discharged such burden, I have to review all the relevant facts and circumstances.  In this process, the Convictions are themselves also probative evidence, the precise weight of which I have to assess having regard to the circumstances in which they were entered, including any explanations that the Defendants may give as to why they pleaded guilty.  See Stupple v Royal Insurance Co. Ltd. [1971] 1 QB 50 at 72 per Lord Denning MR, applied by, e.g. Cheung J in Lau Ka Po v Man Cheuk Ming, HCPI 584/1996, unreported, 10 March 1997 at pp 4-5.

34. That said, I believe it is unnecessary for me to spend time on Ming Tak’s explanation for its guilty pleas and its impact (if any) on the weight I shall give to Ming Tak’s convictions as it will become apparent from the discussions on liability below that my conclusion on liability does not turn on the incidence of the burden of proof at all.

35. On this note, I turn to discuss each of the matters raised by the Defendants in dispute of liability.

Nature of Mr Chan’s work at the Site

36. On one hand, Mr Chan claims to be an experienced demolition worker, having been engaged in that capacity at numerous construction sites since the early 1990’s.  More specifically, according to paragraph 57 of his Chinese Witness Statement dated 30 June 2010, Mr T C Cheng telephoned him in mid October 2008 to tell him that his employer had secured a demolition job but had not found suitable demolition workers and asked if Mr Chan would be interested.  However, Mr Chan subsequently clarified in his evidence in Court that there was in fact no mention by Mr T C Cheng of the type of workers that he was looking for.  He simply inquired with Mr Chan if he would be interested in working in that job.

37. On the other hand, Mr T C Cheng initially stated in paragraphs 5 and 6 of his Chinese Witness Statement dated 23 July 2010 that in about October 2008, Mr Chan approached him to inquire about work opportunities, to which Mr T C Cheng replied that he could arrange casual work (散工) for Mr Chan.  However, Mr T C Cheng later elaborated in his oral testimony that when they spoke before 20 October 2008, he did not specify the type of work for which he was engaging Mr Chan although he intended to assign Mr Chan to odd job duties（什工）, which assignment he then spelt out to Mr Chan when they arrived at the Site on the first day of work (i.e. 20 October 2008).

38. Leaving aside the disagreement as to who approached the other first (which is to my mind insignificant), it is clear from Mr Chan and Mr T C Cheng’s evidence in Court that the former was just told by the latter to attend work at the Site without any prior agreement as to the capacity in which, or the type of work for which, Mr Chan was engaged.  Indeed, it cannot be disputed that Mr Chan and Mr T C Cheng were merely casual acquaintances and that the circumstances in which Mr T C Cheng came to know Mr Chan would give the former no clue that the latter had worked at construction sites, not to mention the type of work that he specialised in or was capable of doing.

39. However, this is not the end of the matter.  In my opinion, what really matters is what work Mr Chan was in fact assigned or permitted to carry out at the Site. 

40. In this regard, according to Mr Chan, he performed demolition duties, alternating with Mr Choy in dismantling the Cockloft as it was tough work and there was only one large electrical concrete breaker at the Site fit for the purpose.  In contrast, Mr T C Cheng has asserted in his said witness statement that Mr Chan was not responsible for demolition or required to use the electrical concrete breaker.  The demolition was entrusted to Mr Wong with the assistance of Mr Choy.  He had prior to the Accident repeatedly instructed Mr Chan that he should only clear debris.  Mr T C Cheng has gone so far as saying in rather absolute terms that he had never seen Mr Chan use the electrical concrete breaker or undertake the demolition of the Slab.  Mr T C Cheng’s last-mentioned statement is corroborated by Mr Choy who says the same in paragraph 12 of his Chinese Witness Statement dated 26 July 2010.  My Choy adds that to his knowledge, no one (including Mr Choy himself) had instructed Mr Chan to use the electrical concrete breaker or demolish the Slab.  Since Mr Chan was responsible for clearing debris and not demolition, Mr Choy did not understand why he took it upon himself to use the electrical concrete breaker to demolish the Slab on the day of the Accident.  

41. The evidence given on this issue by Mr T C Cheng in his said witness statement in this action is, in my view, much compromised:

(1)  Firstly, by what he is recorded to have told the Labour Department in his declaration dated 6 January 2009 when he was asked to give a precise description of how he assigned the workers to demolish the Cockloft and the method, sequence of work and precautionary measures that had been adopted:

“本人安排三名工友到上述地盤開工(包括傷者陳道寧) 進行清拆工作，在開工前，本人給與他們所需要的工具包括電炮、手搥及安全帽等，然後就吩咐他們到閣仔處進行清拆的工作，之後，他們就自行做清拆的工作，在清拆的時侯，本人大部份時間也在地盤現場一同工作，也同時親自做監督的工作。”

This answer suggests to me that all 3 workers (including Mr Chan) participated in dismantling the Cockloft.  Mr T C Cheng has not, in his evidence in this action, explained this prior inconsistent statement to the Labour Department.

(2)  Secondly and more importantly, by his admission under cross-examination, in contradiction of his own clear written statement, that he did assign Mr Chan to demolition duties for the first few days on site with a view to testing his skills as a demolition worker and that he would have asked Mr Chan to continue with such work had he proved adequate. 

42. As in the case of Mr T C Cheng, Mr Choy also retracts from his witness statement.  He now recalls having seen Mr T C Cheng instruct Mr Chan to use the electrical concrete breaker to do demolition work (but only once in a while on the first few days).  Upon being read paragraph 12 of his said witness statement (which is inconsistent with his evidence in Court), Mr Choy says that he had just skimmed through the document and did not study it in detail.  This explanation is hard to accept.  The Court expects a witness to take the preparation and signing of his witness statement seriously.  

43. I prefer the evidence of Mr Chan. 

44. For the avoidance of doubt, I do not believe Mr T C Cheng and Mr Choy when they say that Mr Chan was put back on strict debris clearing and odd job duties after the initial attempts at demolition.  Mr T C Cheng claims that such efforts proved unsatisfactory.  Mr Chan showed himself to be inexperienced in demolition.  He was not up to the job.  And he adopted the wrong work procedure.  However, Mr T C Cheng has not given any particulars to support such criticisms.  Mr Choy would not comment on Mr Chan’s skills as a demolition worker.  One can be forgiven for being sceptical.

45. I find that although Mr T C Cheng and Mr Chan had not agreed beforehand on the precise work for which Mr Chan was to be engaged at the Site, Mr Chan was in fact deployed by Mr T C Cheng to do demolition work (including the removal of the Cockloft) since they started work at the Site on 20 October 2008.

Was Mr Chan acting in disregard of Mr T C Cheng’s order to temporarily halt the demolition of the Cockloft?

46. I also reject Mr T C Cheng’s evidence (which is disputed by Mr Chan) that he had, before they left work on 10 November 2008 (i.e. the day before the Accident), ordered the workers at the Site not to continue with the demolition of the remaining Slab the next day.

47. The reason given by Mr T C Cheng for such a direction is that he had throughout the course of work at the Site provided the workers with, inter alia, working platform from which they could work as well as falsework and other temporary support (made from I-beams that could be found at the Site) underneath the Slab in case they had to stand on the Slab.  These were temporarily removed from the Site on 10 November 2008 because the owner of the Site required the space underneath the Cockloft to be cleared to move goods into the Site (which as said earlier was used as a warehouse) for storage.  However, he had made arrangement for the working platform to be moved back to the Site so that the removal of the Slab could be continued.  Hence, on 10 November 2008, he orally notified Mr Wong and Mr Choy to stop the demolition of the Cockloft and to deal with the other matters on site on the following day.  As for Mr Chan, he instructed him to clear the debris that had accumulated.

48. In short, the reason put forward by Mr T C Cheng for suspending the demolition of the remaining Slab is the removal of the temporary structure(s) that he had put in place underneath the Cockloft to support it.

49. I have no hesitation in rejecting this part of Mr T C Cheng’s evidence because I do not believe that he had provided the workers with any working platform or falsework underneath the Slab so that their temporary removal from the Site on 10 November 2008 would warrant him to suspend work on the remaining Slab on 11 November 2008. 

50. In taking this view, I have reminded myself that Mr Choy also says that Ming Tak had provided, inter alia, working platform and temporary support (in the form of falsework) at the Site before the commencement of work and he further describes a working method and procedure that involved the use of a working platform and the installation of temporary support under the Slab when it was impracticable to work from the working platform and the workers had to stand on the Slab.  It goes without saying that I do not accept this part of Mr Choy’s evidence either.

51. The answer to the Labour Department quoted in paragraph 41(1) above was immediately followed by this further exchange:

“問(10):在清拆進行時，閣仔石屎地台的下方，有否架設臨時的支撐樁頂來承托被拆下來的石屎樓板?

答(10): 閣仔石屎地台的下方原本是有工字鐵及鐵通貨架來支撐石屎地台，但在清拆工程進行時，即打電炮工程展開前，鐵通貨架已經被移走，以及工字鐵也被續一拆除，而在清拆工程進行到尾段，即附件二相片一的階段，地屎地台下方是沒有任何支撐樁頂。”

52. I understand this answer to mean that:

(1)  Prior to its demolition, the Slab was supported by H-beams and good shelves made of iron bars.

(2)  The iron bar shelves were removed before they started to break the Slab with the use of the electrical concrete breaker.

(3)  The H-beams were dismantled one by one as the demolition of the Cockloft progressed.

(4)  By the stage of work shown in the photograph numbered 1 at annex 2 to Mr T C Cheng’s declaration, what remained of the Slab was not supported from underneath at all.  The said photograph shows Compartment 3 after the collapse of the remaining Slab.

Contrary to Mr T C Cheng’s evidence in this action, there was no reference whatsoever of any work platform or falsework or other supporting structure that were in place at the Site at any phase of the work in question.  Mr T C Cheng would have been aware that the Labour Department was interviewing him and taking his statement as part of its investigation into the Accident and that one aspect with which the department would be particularly concerned would be whether the work in question had been carried out in a safe manner.  To my mind, had Mr T C Cheng taken steps to provide for support for the Slab (in addition to just taking advantage of what pre-existed at the Site), it is inconceivable that he would have failed to mention the same to the Labour Department, even upon being asked the specific question quoted in paragraph 51 above.

53. The only explanation that Mr T C Cheng can give, upon being questioned about this prior inconsistent statement, is that he did not express himself clearly to the Labour Department.  However, what Mr T C Cheng had told the Labour Department seems to me to be very clear and leaves no room for misunderstanding.

54. I thus find that Mr T C Cheng had not prior to 11 November 2008 put in place any working platform or falsework or other supporting structure underneath the Slab that were removed from the Site on 10 November 2008 but were to be moved back to the Site later; that he therefore had no reason to order the suspension of the demolition of the remaining Slab on 11 November 2008 and that he did not do so.

55. It follows that Mr Chan was not disobeying order when he continued with the demolition of the remaining Slab in the morning on 11 November 2008.

Did Mr Chan work on the remaining Slab in an unsafe manner? 

56. As stated in paragraph 17 above, Mr Chan worked on the remaining Slab by starting at the back portion that rested on the rear brick wall. 

57. In view of my above findings as to the cause of the Accident based on the Accident Report, there is no question that Mr Chan had thereby removed the support provided by the rear brick wall and contributed to the remaining Slab becoming a cantilever-liked structure supported only by the left brick wall with a short return and without any anchorage in any structure.

58. I therefore agree with the defence that it was unsafe for Mr Chan to begin break the remaining Slab at its rear end. 

Was Mr Chan contributorily negligent?

59. However, it does not necessarily follow that Mr Chan was therefore guilty of contributory negligence. 

60. According to Mr Chan, he started at the back portion of the remaining Slab that rested on the rear brick wall because that part had already been broken open the day before. 

61. Mr T C Cheng disagrees as he recalls that the whole of the remaining Slab was intact when they started work on 11 November 2008.  

62. For the sake of completeness, although Mr Choy has not dealt directly with the state of the remaining Slab at the beginning of work on 11 November 2008, he has said in paragraphs 6 to 8 of his said witness statement that:

(1)  They removed the Cockloft compartment by compartment, beginning from the right to the left (i.e from Compartment 1 to Compartment 3).

(2)  They would dismantle the Slab over a compartment from the outside and then gradually moved inside so that the Slab could retain as much support as possible from the vertical walls upon which it rested.

(3)  They would only dismantle a supporting brick wall only after the Slab over a compartment had been completely removed.

Mr T C Cheng shares Mt Choy’s recollection. Implicit in these gentlemen’s said description of the sequence of work for the demolition of the Cockloft is the suggestion that no portion of the Slab would have been broken open at the back end first, thereby contradicting Mr Chan’s statement that when he started work on 11 November 2009, the back portion of the remaining Slab had already been dismantled. 

63. There is not much direct objective evidence upon which the Court can make any independent finding on this matter, if viewed in isolation.  Confronted with the choice between Mr Chan’s evidence on one hand and Mr T C Cheng and Mr Choy’s evidence on the other, I take into account my rejection of the latter gentlemen’s evidence on the other factual questions that I have determined.

64. I further note that Mr T C Cheng and Mr Choy’s evidence that they had followed work procedure described in paragraph 62 above is not borne out by, and is inconsistent with, these indisputable facts:

(1)  The Slab above Compartment 3 had in fact not been demolished entirely from the outside to the inside.  Otherwise, one would have been left with a 1.57 metre wide Slab attached only to the rear and left brick walls, as shown in Sketch 2.

(2)  The right brick wall of Compartment 3 had been partially destroyed as shown in the photographs identified in paragraph 15 above.

65. I favour Mr Chan’s testimony. 

66. Even if I am wrong on the state of remaining Slab at the beginning of the day on 11 November 2008, I do not think Mr Chan should be blamed for starting where he did.  Mr T C Cheng admittedly did not investigate the structure and construction of the Cockloft before the commencement of its demolition.  That being the case, Mr Chan had not been briefed about, and had no knowledge of, such matters, without which he would not be able to appreciate the hazards involved in the procedure that he had adopted.

67. For the sake of completeness, it has also been suggested to Mr Chan that he had failed to wear a safety belt which could have been attached to the horizontal pipe that ran across the ceiling above the Cockloft.  This has not been pursued in closing submissions.  In any event, I find that Mr Chan was not provided with any safety belt despite Mr T C Cheung and My Choy’s evidence to the contrary.  There was no mention of safety belts in the answer given by Mr T C Cheng to the Labour Department.  None had been found at the Site by the Labour Department after the Accident.

Conclusions on liability

68. For the above reasons, I reject the Defendants’ arguments against liability and find both of them liable for the Accident.  I absolve Mr Chan of any contributory negligence.

69. I have not been asked to apportion liability between Ming Tak and Wing Luen.

QUANTUM

Mr Chan’s date of birth & present age

70. Mr Chan was born on 18 November 1957 and is now aged 56.

The parties’ respective positions on quantum

71. I begin my discussion on quantum by setting out the respective positions on quantum adopted by the parties in closing submissions for 100% liability:

Head of Damages	Mr Chan	Ming Tak	Wing Luen
PSLA	$650,000.00	$550,000.00	$500,000.00
Pre-trial Loss of Earnings	$720,000.00	$114,704.75	$165,000.00
Future Loss of Earnings	$932,400.00	$69,300.00	Nil
Loss of MPF	$82,669.50	Already included in calculating loss of earnings	Nil
Loss of Earning Capacity	$30,000.00	$30,000.00	$30,000.00
Special Damages	$5,984.00	$5,984.00	$5,984.00
	$2,422,042.80	$769,988.75	$700,984.00
LESS Employees’ Compensation	$413,091.20	$413,091.20	$413,091.02
	$2,008,951.60	$356,897.55	$287,892.80

Injuries, treatment, residual complaints & prognosis

72. As a result of the accident, Mr Chan sustained multiple injuries namely, fracture of the left acetabulum; sub-trochanteric fracture of the left femur (neck of femur to sub-trochanteric region); fracture of the bilateral anterior upper ribs (mainly right side); fracture of the bilateral posterior lower ribs; atelectasis of the upper lobe on right side; multiple fracture of the left side lumbar transverse processes; left eye injury (being fracture of the left lamina papyracea with no muscle entrapment); left hand skin abrasion and facial laceration.

73. Mr Chan was hospitalised at the Prince of Wales Hospital from 11 to 21 November 2008 when he was transferred to the Tuen Mun Hospital where he stayed for postoperative management of the factured left femur, left acetabulum and transverse process of multiple lumbar vertebrae until his was discharged on 4 December 2008 on crutches.  He was re-admitted to the Tuen Mun Hospital from 23 to 28 March 2009 for surgery because of difficulty to urinate.

74. The left face laceration was sutured on 11 November 2008.  The lumbar transverse process fracture was treated conservatively.  His left orbital fracture was managed with systemic antibiotic cover and ice pack to the affected area on 12 November 2008.  He underwent open reduction and internal fixation of the left acetabular fracture and closed reduction and fixation of AFN nail for the left hip fractures on 13 November 2008.

75. Mr Chan attended 16 sessions of physiotherapy treatment from 23 February to 22 June 2009 and 18 sessions of occupational therapy from 5 February to 22 June 2009.

76. Mr Chan was granted sick leave from 11 November 2008 to 18 January 2010.

77. On 13 January 2010, Mr Chan was jointly examined by Dr Tsui Chung Wan (appointed by Mr Chan) and Dr Cheung Sek Hong (appointed by Ming Tak), both specialist in ophthalmology.  At this examination, the best corrected visual acuity of both his eyes was 20/30+.  Save for very mild cataract in both eyes (which developed independent of the Accident), the ophthalmic examination is normal and reveals no clinical evidence of direct injury to Mr Chan’s left eye globe and no restriction of eye movement with binocular diplopia, which usually occurred in orbital fracture with extraocular muscle entrapment.  An appropriate period of sick leave for the resolution of the left eye periorbital swelling and bruise would be about one to two weeks.  Both doctors are of the opinion that the eye injury has not affected Mr Chan’s work capability.

78. Mr Chan was jointly examined by, Dr Wong See Hoi (“Dr Wong”) (appointed by Mr Chan) and Dr Arthur Chiang Si Chung (“Dr Chiang”) (appointed by Ming Tak), both specialists in orthopaedics and traumatology, on 16 March 2010 by which time Mr Chan was still complaining about:

(1)  intermittent attacks of left hip, thigh and back pain about 3 to 4 times a week;

(2)  left lower limb weakness; and

(3)  poor sleep because of pain at night; and

(4)  blurred left eye vision.

79. The physical examination by the orthopaedic experts reveals, inter alia, that Mr Chan

(1)  walks in a trendelenburg gait with external rotation of the left hip;

(2)  has a left leg that is shorter by 2 cm compared to the right side;

(3)  is unable to do tip-toe or heel walking, single leg standing or squatting;

(4)  has difficulty, and needed assistance in, turning in the supine position;

(5)  has diffuse tenderness over his lower back and left buttock;

(6)  has mild muscle wasting of his left thigh (1 cm as compared to the right side);

(7)  has nerve tension on the left side as straight leg raising is limited to 30^o as a result of pain in the left hip, as compared to 70^o for the right side; and

(8)  has decreased range of movements in his left hip.

80. Radiological examination shows that the fracture of the multiple left side lumbar transverse processes, the sub-trochanteric fracture of the left femur and the fracture of the left acetabulum have all healed with satisfactory alignment (but with abundant callus over the sub-trochanter for the left acetabulum); that the nails and screws implanted are in situ and that there is narrowing of the left hip joint.

81. Dr Wong notes that the treatment, though standard and appropriate, has failed to satisfactorily relieve the symptoms over the left hip, left thigh and back.

82. On the other hand, Dr Chiang views the subjective complaint of pain in hip flexion and hip abduction and in performing the left sided straight leg raising test as less accurate than the objective findings.  With respect to the objective findings, Dr Chiang notes the mild decrease in muscle bulk of the left thigh and the preservation of the left calf circumference, which suggest that there would likely be a reasonable use of the left lower limb.  Dr Chiang states that whilst there is a 2 cm shortening of the left leg and presence of a degree of stiffness and weakness of the left lower limb, it is likely to be mild.  The lower back is also likely to be in a satisfactory condition as the traverse process fractures have united with satisfactory alignment.  All these suggest to Dr Chiang that a reasonably satisfactory result has likely been acquired by the surgeries and the subsequent physiotherapy and occupational therapy.

83. As for prognosis, Dr Wong is pessimistic in that for severe trauma that involves fracture acetabulum, there is a high chance for development of degeneration over the hip joint.  He expects Mr Chan to have significant residual pain and weakness over the left hip and left thigh despite the satisfactory alignment of the left acetabulum and femur fractures.  Dr Chiang, however, anticipates post-traumatic arthritis (if developed) to be mild.  Some degree of pain and weakness could be present but would be mild to moderate.

84. According to both Dr Wong and Dr Chiang, Mr Chan is independent in activities of daily living including self-care and self-hygiene.  However, with poor ambulation, Mr Chan is expected to have difficulty with prolonged walking, stair climbing, heavy lifting as well as getting on and off public transportation and is unable to perform any form of vigorous exercises. 

85. The doctors agree that Mr Chan is no longer able to work as a construction site worker but should be able to manage employment of a sedentary nature such as car-park attendant or cashier.  Dr Wong assesses impairment of the whole person and loss of earning capacity to be 16% to 21% whereas Dr Chiang suggests 16%.

86. Both experts agree that the sick leave granted to Mr Chan was reasonable.

87. In my view, the most objective and reliable demonstration of Mr Chan’s current conditions is what he could be observed to be doing and capable of doing under discrete surveillance which was conducted on 17 January 2012.  Mr Chan was shadowed from 11:57 am when he stepped out of the building at which he resides to 18:05 pm when he returned.  During those 6 hours, Mr Chan, while using a walking stick in his right hand and walking with a slight limping gait, did manage to go out and about, get on and off buses, travel up and down escalators and stand for prolonged periods of time.  I particularly note that he spent over 4½ hours at a Jockey Club betting centre (where there was no seating) from 12:34 pm to 17:10 pm.  Apart from the few minutes (2:44 pm to 2:48 pm) when he went outside and sat down for a cigarette, he was on his feet during the whole he was in the betting centre. He did not appear to be in any difficulties either when he left the betting centre at 17:10 pm after these prolonged periods of standing.

PSLA

88. In view of the medical and surveillance evidence, I disagree with Mr Steven Lau, Counsel for Mr Chan, that Mr Chan’s injuries fall within the “serious injury” as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at 659-660 (i.e. an injury which “leaves a disability which mars the general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

89. Taking into account the various previous awards put forward by the parties as comparables, I believe $575,000 would be an appropriate award.

Loss of earnings

90. The controversy that separates the parties on the award for loss of earnings stems from their markedly different positions as to Mr Chan’s earnings at the time of the Accident, what he would otherwise have been earning had the Accident not occurred and the notional earnings for which he should give credit once sick leave has expired.

91. There is no dispute that Mr Chan and Mr T C Cheng did not agree on Mr Chan’s wages when Mr T C Cheng employed him on Ming Tak’s behalf.  By the time of the Accident, Mr Chan had only worked at the Site for 20 days or so and had not yet received any payment of wages save that he was advanced on account of his wages a sum of $2,000 after the 3^rd or 4^th day and another sum of $2,500 on 29 October 2009 when he and Mr T C Cheng went to the races together.

Mr Chan’s case on what he earned at the time of the Accident and what he would have been earning had the Accident not occurred

92. Mr Chan’s case on loss of earnings is premised upon his having been an experienced demolition worker in construction sites and being employed as one by Ming Tak and upon his being able to continue to work as such.

93. With regard to his earnings at the time of the Accident, Mr Chan initially claimed damages for loss of earnings based on a monthly income of $14,040 at the time of the Accident.  This figure was arrived at by adopting a daily rate of $540 multiplied by 26 days of work per month.  Of the said daily rate, $500 was wages and $40 was the cost of a free lunch provided by the employer.  Mr Chan put forward a daily rate of $500 at first because:

(1)  Firstly, in the absence of an agreement on his wages, Mr Chan refers to and relies on the market rate for a demolition worker at a construction site in 2008 which, he says, was between $500 and $700 per day. But, as he was then out of work, he was prepared to take $500 per day.

(2)  Secondly, he subsequently struck an agreement with Mr T C Cheng when he visited him at the Tuen Mun Hospital that his wages would be calculated at $500 per day. 

94. By his Amended Revised Statement of Damages filed on 7 January 2011, Mr Chan revised his calculation of earnings at the time of the Accident to $20,540 per month by adopting the increased figure of $750 for daily wages. 

95. This change is said to have been prompted by the discovery by Mr Chan at home on 13 December 2010 of a note handwritten and given by Mr T C Cheng to him at a meeting at a Chinese restaurant in July 2009, which reads as follows:

“明德電業鋁窗裝飾工程公司

代公司聘請顧(sic)員陳道寧先生由08年10月20日上班至08年11月11日因工作意外損傷、直至09年8月20日醫生病假證明書

已支付薪金港幣四萬二仟元正

人工已支付薪金港幣一萬伍仟元正

代支經手人鄭棟就”

96. Mr Chan seizes on the words “人工已支付薪金港幣一萬伍仟元正”.  He takes the figure of $15,000 to be a reference to his total wages for the 20 days that he had worked for Ming Tak, yielding a daily rate of $750.  He therefore puts forward this document as an acknowledgment by Mr T C Cheng on behalf of Ming Tak that his daily wages at the time of the Accident was $750.  Mr Chan then adds to this daily rate $40 for the daily free meal and then multiplies the sum by 26 working days to arrive at $20,540 per month.

97. Mr Chan further claims that but for the Accident, he would have continued to work as a demolition worker, making the same amount of money every month.

98. Notwithstanding the expiry of sick leave, Mr Chan has admittedly not made any efforts to look for gainful employment because he has no confidence that he would secure any as he has to walk with a stick and a limping gait.  However, he is prepared to give credit for a notional income of $5,000 per month.

The Defendants’ case on Mr Chan’s loss of earnings

99. The Defendants hotly contest Mr Chan’s claim that he was experienced in construction site demolition work or that he was employed as a demolition worker at the time of the Accident.

100. As stated above, Ming Tak obtained the Sub-contract at a price of $80,000.  According to Mr Tsui, he had budgeted as follows which would give him a profit of $17,000:

Wages of foreman/supervisor (i.e. Mr T C Cheng)
($600 per day x 30 days)	$18,000
3 workers (each at $300 per day x 30 days)	$27,000
Miscellaneous expenses	$18,000
	$63,000

101. Mr Chan was one of the 3 workers to be paid $300 a day.

102. With regard to the Accident, Mr T C Cheng had, on behalf of Ming Tak, filled in a Form 2 in which it is asserted that Mr Chan’s earnings for the month preceding the Accident was $8,460 a breakdown of which is as follows:

Basic salary/wages	$7,260
Food allowances/value of free food provided by employer	$600
Travelling subsidy	$600

Although Mr T C Cheng disowns these figures[6] and is unable to give any sensible explanation as to why he put them down in the first place, I note that $7,260 per month divided by 22 days (which was given in the same form as the average number of days worked by Mr Chan in a month) gives $330 per day which is close to what Ming Tak says to be Mr Chan’s daily pay.

103. Mr Choy (who on Mr Chan’s own evidence was doing similar work at the Site as Mr Chan) has given evidence that he was paid $300 a day for the job for Ming Tak and that as a casual worker, he has only been able to secure work for, on average, about 20 days per month.

104. Ming Tak has further produced 2 salary receipts in respect of Mr Wong for the months of February and March 2009.  These documents show that Mr Wong earned $300 per day and he worked 26 day for the first month and 25 days for the second.

105. As for what would have been Mr Chan’s present day earnings had he not been injured in the Accident, Ming Tak suggest $330 per day (without the free lunch), representing a 10% increase from 2008. 

106. The Defendants also dispute the number of days factored in by Mr Chan in his calculations.  Ming Tak/Wing Luen take the respective views that Mr Chan would not have got more than 20/22 days of work every month at the time of the Accident and at any stage thereafter.

107. As for the notional earnings for which Mr Chan should give credit after the expiry of sick leave, Ming Tak welcomes the concession of $5,000 per month but makes the point that minimum wage legislation came into effect on 1 May 2011 from which time Mr Chan should be able to earn $5,500 per month (according to Mr Lim).

Discussions and findings on Mr Chan’s earnings

108. Leaving aside what Mr Chan might have done for a living in the past and notwithstanding that he did perform demolition duties at the Site to the extent found in this Judgment, I am unable to accept his claim that he was generally working, and employed, as a construction worker specialising in demolition work at construction sites at the time of the Accident or that he would have been able to continue in the same situation had he not been injured in the Accident.

109. My reasons are that:

(1)  On Mr Chan’s own evidence, since 1997, there was such a shortage of work in the construction industry that he had to supplement his income by selling cooked food as an unlicensed hawker (which he did for a few to 10 days a month).

(2)  Since June 2008, he operated a cooked food stall at Affluence Gardens in Tuen Mun on a full time basis.  He closed down such business in October 2008 because he could not obtain the requisite licence.

(3)  Between the time when he closed his said business and his contact with Mr T C Cheng in mid October 2008, he had not secured any employment in construction.

(4)  The job at the Site was the first one that came by.

(5)  By the time of the Accident, Mr Chan had already worked at the Site for 20 days.  Mr Tsui had estimated that the completion of the Sub-contract would take about 30 days.  Mr Chan would have to move to a new job soon.  However, he had not found any as at the date of the Accident.  He has not even mentioned anyone who had reached out to him or to whom he had tried to reach out for this purpose.

(6)  Mr Chan held a “Green Card” from 30 December 2003 to 29 December 2006.  He had not renewed it after 30 December 2006.  The mandatory requirement of a “Green Card” came into force on 1 May 2011.  Each card is issue for a period of 3 years.  Had Mr Chan obtained a “Green Card” with effect from 1 May 2011, he would not have had to get one that commenced on 30 December 2003.  This suggests that Mr Chan had ever held only one “Green Card”.  Mr Chan, however, says that after 29 December 2006, no one asked to see his “Green Card” and that was the reason why he did not realise that the card had expired.  He further explained that it was only at construction sites that one has to show a “Green Card” to gain entry to work at the site, which suggests to me that he had not worked at a construction site at all after 29 December 2006.  Indeed, when pressed as to how he knows the practice at construction sites to require the production of a “Green Card”, he refers to an occasion when he went to a construction site in Portland Street, Mongkok and the worker in front of him was unable to gain entry because his card had expired.  It is noteworthy that Mr Chan does not explain this with reference to his own experience of using his card to gain entry to construction sites during the validity of his card.

(7)  Indeed, what is most striking is that all the past employers in construction whom Mr Chan has named in his witness statement were from over 10 years ago.  He is not able, when cross-examined by Ms Amanda Lee, Counsel for Wing Luen, to name any more recent employers in construction after he started working part time as a hawker.

110. Turning then to Mr Chan’s income at the time of the Accident, I find that he was earning $7,480 per month based on a daily wages of $300 plus a $40 free meal and 22 working days per month.

111. In so finding, I have had regard to the matters set out in paragraphs 110 and 111 above as well as the following facts and circumstances:

(1)  The document quoted in paragraph 95 above does not actually specify what the sum of $15,000 was made up of in terms of daily wages and number of working days.  I see no basis for treating it as conclusive evidence that $15,000 was paid just for the 20 days that Mr Chan had worked, without regard to other relevant facts and circumstances.

(2)  The Sub-contract was, on any view, a small project on a tight budget.  Mr Lau cannot and does not seek to dispute the authenticity of Ming Tak’s said quotation to Wing Luen or the receipts showing collection of sums totalling $80,000 by Ming Tak from Wing Luen.  The payment of wages to Mr Chan at $500 per day or $750 per day, if made, would have left Ming Tak with very little profit or even a loss on the Sub-contract.

(3)  Mr Chan does not dispute Ming Tak’s evidence that Mr T C Cheng, as foreman/supervisor, was paid $500 to $600 per day only.

(4)  On Mr Chan’s own case, Mr Choy was doing similar work as he did at the Site.  Mr Choy’s evidence that he was paid $300 per day only by Ming Tak is not challenged.

(5)  In these circumstances, it seems to me inherently improbable that Mr T C Cheung would agree to give Mr Chan $500 per day, not to mention $750 a day and more probable for Ming Tak to pay Mr Chan at the same rate as Mr Wong and Mr Choy.

(6)  As for the number of days that Mr Chan should be regarded as working monthly at the time of the Accident, I am mindful that the wages receipts of others in Ming Tak’s employ (showing 25-26 days of work) cover only a couple of isolated months which may not be representative of the general market condition.

(7)  In this regard, on Mr Chan’s own evidence, he was able to secure construction work for up to 20 days or so in a good month.  Ming Tak has put down 22 days (indeed twice) in the Form 2.  I think it should be held to such figure, which Wing Luen also adopts in its calculation of loss of earnings.

112. I further find that but for the Accident, Mr Chan should have been able to work in the same or a similar line of work as he was doing at the time of the Accident and at more or less the same level of market to the same extent.  

113. As for whether and, if so, how his earnings should be adjusted on such basis for the assessment of damages for his loss of future earnings, there is very little evidence.  The 10% increase (on $300 per day without taking into account the value of the free meal) suggested by Mr Lim seems to me to be entirely arbitrary.  Doing the best I can, Mr Choy (whose duties at the Site were similar to Mr Chan and who has remained in the market but doing a somewhat greater variety of works) has given the figure of $400 odd per day for similar work at present time.  I shall use this rate plus $40 for the free meal.

114. Lastly, I agree with Mr Lim that Mr Chan should give credit for a notional income that is not less than the mandatory minimum wage which, Mr Lim submits, should be $5,775 per month inclusive of the employer’s 5% MPF contribution.  I accept Mr Lim’s figure.

Pre-trial loss of earnings

115. Mr Chan was on sick leave for a total of 434 days.  I believe it is fair to allow him 2½ months thereafter (i.e. up to 31 March 2010) to find gainful employment.  Mr Chan’s pre-trial loss of earnings should therefore be $290,613.40, a breakdown of which is as follows:

(1)  $150,150, i.e. ($340 + $440)/2 x 22 days x 105%[7] x 16²⁰/₃₀ months, for the period from 11 November 2008 to 31 March 2010;

(2)  $140,463.40, i.e. [($340 + $440)/2 x 22 days x 105%) – $5,775 per month] x 43¹³/₃₀ months, for the period from 1 April 2010 to the date of this Judgment.

Future loss of earnings

116. Mr Chan and Ming Tak agree on a multiplier of 5 years as at the date of trial.  Wing Luen has not proposed any multiplier for post-trial loss as it has submitted that there will be no such loss (with which I disagree). 

117. To take account of the lapse time since the trial, I apply a multiplier of 3½ years.  Mr Chan’s future loss of earnings is therefore $184,338, i.e. [($440 per day x 22 days x 105%) - $5,775] x 42 months.

Conclusion on quantum

118. In summary, all items of damages add up to $672,844.20, which I break down as follows:

Head of Damages	Amount
PSLA	$575,000.00
Pre-trial Loss of Earnings + MPF	$290,613.40
Future Loss of Earnings + MPF	$184,338.00
Loss of Earning Capacity	$30,000.00
Special Damages	$5,984.00
	$1,085,935.40
LESS
Employees’ Compensation	($413,091.20)
	$672,844.20
	=========

Order

119. I give judgement for Mr Chan against both the Defendants for $672,844.20 with interest on damages for PSLA at 2% per annum from the date of service of the Writ of Summons herein to the date of judgment and interest on pre-trial loss of earnings and special damages at half judgment rate from the date of the Accident to the date of judgment.

120. I also make an order nisi that the Defendants should pay Mr Chan’s costs of this action, to be taxed if not agreed.  Mr Chan’s own costs should be taxed in accordance with the Legal Aid Regulations.