CHAN CHI SHING v. TSANG FOOK METAL ENGINEERING AND ANOTHER

HCPI 224 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 224 OF 1998

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J U D G M E N T

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On 22nd March 1995, the Plaintiff had an industrial accident whilst working for the First Defendant as a steel binder on casual basis at a construction site managed by the Second Defendant. There is no doubt that both Defendants would be liable provided the Plaintiff proves negligence or breach of statutory duty.

2. How the accident happened is a major controversy fundamental to the issue of liability. There are at least six versions on paper:-

(1)	Form 2, Employers' report of industrial accident filed under Employers' Compensation Ordinance, Cap. 282 dated 27th March 1995. "Whilst working at the materials preparation workshop on the ground floor, fell to the floor due to carelessness and injured seat bone." (Original in Chinese, my own translation.)
(2)	Medical report dated 31st March 1997 by Dr. C. L. Yip, Department of Orthopaedics and Traumatology, Prince of Wales Hospital. "Seen on 30th March 1995, the above mentioned sustained an injury to his back and buttock on 22nd March 1995 when he fell onto a pile of steel rods."
(3)	Medical report by Dr. Tsoi Chi Wah dated 6th September 1997. "Date of medical examination: 4th September 1997 ..... On 22nd March 1995, while Mr. Chan attempted to lift up some heavy steel rods, he slipped and fell and sprained his lower back ....."
(4)	Particulars of Claim in District Court Employees' Compensation Case No. 161 of 1997 dated 12th March 1997. "On 22 March 1995, ..... The Applicant whilst in the course of employment was attending to and/or assisting in the loading of a roll of steel bars and was standing on a sloped and slippery wooden plank while attending to the work. As a result of inter alia the slope and the slippery surface, the Applicant lost his balance and fell from the slope plank to the grounds and sustained injuries."
(5)	Statement of Claim in present action dated 5th March 1998. "On or about 22nd March 1995, the Plaintiff whilst in the course of his employment was placing a roll of bent and/or shaped steel bars onto a specified position on the roof-top of a building under construction together with 3 co-workers. At all material times the said roof-top was covered by contoured and sloping planks. Whilst the Plaintiff was carrying the said roll of steel bars, he suddenly slipped on some oily substance on the surface of one of the wooden planks and tripped over the edges between the said wooden planks. He landed heavily on his buttocks and sustained serious injuries ....."
(6)	Witness statement by the Plaintiff made on 26th October 1998. "12. On 22nd March 1995, it was a sunny day. At about 2:00 p.m., while I , together with three fellow binders were working on the roof top level of the building under construction, we moved a roll of steel bar of about 10 to 15 metre long for a distance of about 10 or 20 metres. We shouldered the bar and walked forward to the designated place for binding works and I was the last one in the row. The bar was about 2 inches in diameter and rested on my right shoulder. 13. At the time, the building was being built up. The ground of the then roof top level had not been levelled and was covered by contoured and sloping wooden planks. I was wearing my own sport shoes. No anti- slippery footwear was provided by the Defendants. 14. As we carried the bar and walked on the wooden planks, I suddenly slipped on some oily substance on the surface of one of the wooden planks and tripped over the edges between the planks. I lost my balance, fell and landed heavily on my buttocks as the heavy bar slided off from my shoulder. I sat there and at first, I felt pain but thought I may be all right after taking a rest. But as I tried to move to get up, the piercing pain started to soar. My co-workers came to ask me if they needed to call an ambulance. I at first suggested I sit for a while to see if I should be all right. However, the pain became more severe and I found I could not move at all. I was subsequently taken to the Accident and Emergency Unit in Prince of Wales Hospital."

3. There is no suggestion that the first version in the statutory report filed on behalf of the Second Defendant is a deliberate falsehood. However, by all accounts, that version is plainly unreliable. The other five versions, all attributable to the Plaintiff, are inconsistent. They appear to be gradual "improvements" designed to enhance the chances of recovery of compensation in this action. According to Mr. Clough for the Defendants, the inconsistencies make it impossible for the court to believe the Plaintiff's testimony in court or to determine the true cause of the accident. Counsel further attacked the credibility of the Plaintiff by pointing out three untrue accounts in his witness statement. In his witness statement, he says that he was born in Hong Kong. In fact, he was born in China and came to settle in Hong Kong when he was about eight years old. He stated that (as at the time of making the statement in late 1998) he is living in Hong Kong. In fact he had re-settled in Dongguan, China by the end of 1997. The Plaintiff in his written statement claimed travelling expenses between Hong Kong and Dongguan, China for medical treatment in Dongguan. In fact he was living in Dongguan and those expenses could not have been truly incurred.

4. In fairness to the Plaintiff, his evidence in court is broadly consistent with the Statement of Claim filed on his behalf in this action and his written witness statement prepared for the purpose. I have no doubt that at the time of the accident he was employed as a casual steel binder. He was working on the highest level of the building being constructed. It was not the roof or top floor of the finished building, but the highest floor at that stage of construction. Since work had just commenced at that floor, it was the first day he worked on that floor. Just before the accident, he was moving a 15 feet long steel rod to a designated position on that floor. That rod will be a member of a matrix of steel bars and rods which will eventually be buried in cement concrete to form re-inforced cement concrete as part of the load bearing structure of the building. The rod was about 2 inches in diameter. It had to be carried by all four persons constituting the Plaintiff's gang. These four workers, including the Plaintiff, had placed the rod on their shoulders and were walking towards the designated position. So far, these facts are supported by evidence from the Defendants side.

5. According to the Plaintiff, the floor they worked on was covered by wooden boards, each measuring 4 feet by 8 feet, placed along side one another but not flush as a smooth horizontal plane. I do not think the Defendants dispute this state of conditions. As the Plaintiff and his co-workers carrying the steel rod on their shoulders moved towards the designed position, the Plaintiff stated under oath, he walked over a board which had a patch of oil stain and slipped. When he slipped, because the boards on the floor were not flat flush, he tripped at the edge of a board and fell with his buttocks landing first thereby injuring the back bone in the lumbar region. It is this part of the account of the accident that the Defendants deny or do not admit as true.

LIABILITY

6. Although there must be eye-witnesses to the accident, none has been called by either side to give evidence. So the account given by the Plaintiff is uncontradicted but for the Plaintiff's own prior inconsistent versions. Now, essentially, all the inconsistent accounts can be taken as one or the other of two different versions. The earlier accounts say that the Plaintiff was in the process of or attempting to lift or load a roll of steel bars. The later accounts say that the Plaintiff already had one steel rod on his shoulder and he was well on the way of moving it to the designated position. In my view, the so called inconsistencies reflect differences in the use of diction only. Whether the Plaintiff was carrying one steel rod or a roll of steel bars has no bearing at all to his claim. There was and is no reason for him to be shifty about what he was carrying. The discrepancy is most probably due to a misunderstanding. The Plaintiff does not speak English. When he told the doctors and his solicitors in Cantonese that he was carrying a steel rod, he might well have described the one steel rod as yaat luk tit chee (一碌鉄枝) which was mistaken by his audience as一轆鉄枝。In other words the rod became a roll. Since there is seldom the distinction between the singular and the plural in Cantonese, the audience naturally assumed that a roll would contain more than one piece; so one rod became plural bars. Also, the "roll of steel bars" based on hearsay obviously cannot be true because the thick steel bars or rods used by steel binders cannot be rolled up and if a quantity of them is rolled up people cannot possibly lift or carry them. As to the lifting or loading, again in Cantonese carrying is tok (托) which can easily be mistaken as toi (抬)。

7. If one were to look for more inconsistencies, it may be said that the Plaintiff failed to mention in his earlier accounts that he was carrying the steel rod with 3 co-workers. Again, there was no reason for him to deliberately conceal this fact.

8. One has to understand that doctors are not accident investigators. Their primarily concern does not usually extend beyond events before the physical impact causing injury. I am satisfied that the versions recorded by the doctors are incorrect due to misunderstanding in communication.

9. The facts stated in the Particulars of Claim in the Employees' Compensation claim before the District Court and the witness statement for this action are the work of the Plaintiff's solicitors. They appear to be inaccurate partly, as I have explained, due to language problem. There is an additional language problem in that the solicitors cannot even write a complete grammatical sentence in the Particulars of Claim. Notice too the use of the word plank instead of board. A plank gives the impression that the Plaintiff was walking on a long strip of wood resting on solid support at its two ends only. Actually, the Plaintiff was walking on boards placed on the floor. Thus I have every reason to believe that solicitors for the Plaintiff are unable to translate the Plaintiff's account of the accident accurately into English.

10. There is nothing to be gained for the Plaintiff to claim falsely in his statement that he was born in Hong Kong. He could not have told his solicitors that he was born in Hong Kong. I think solicitors simply assumed that the Plaintiff was born here and put it in the statement for him. As to the Plaintiff's residential status, he stated in his statement that he had separated from his wife in October 1997 and thus, by inference, he could not be living in the matrimonial home given as his address in the same statement. Had solicitors thought about it they should have noticed the discrepancy but instead they assumed that the Plaintiff's address had not changed. On the same assumption, they put down the normal travelling expenses for trips between Hong Kong and Dongguan which never took place. Of course the Plaintiff should be careful about what he signed. But he cannot read the statement in English. I have mentioned during the trial I do not like to criticise solicitors or indeed any lawyer. I do not think solicitors for the Plaintiff tried to mislead the court or to dishonestly inflate the claim; but, I regret to say, solicitors for the Plaintiff put in shoddy work. If the Plaintiff loses this common law claim for doubts on his credibility generated by solicitors who do not take care to represent his case accurately, he might well have a claim against his solicitors. It is very important to ascertain and put down one's client's case fully and correctly.

11. Returning to the cause of the accident, there is nothing inherently unbelievable in the description of the accident given by the Plaintiff in court. He was working at the location as instructed. The work procedure accords with the knowledge I have gained through sitting in the Labour Tribunal dealing with construction workers wages claims and in the Coroners' Court inquiring into fatal accidents at building sites. The Plaintiff was walking on wooden boards placed on the floor. That cannot be disputed. The boards, if they had been used for formwork, would have oil on them to ease separation from set concrete. This is admitted by the Defendants' witness. I do not find that the Plaintiff actually walked on any formwork. The floor supporting the wooden boards were already formed otherwise the Plaintiff and scores of other workers could not walk on it. They were working on that floor as the platform to build the next floor. If they were walking on formwork, they would be on the exposed side of the formwork which does not need greasing. Besides, if the boards on which the Plaintiff walked were part of a formwork, they would have to be flush with one another for acceptable molding effect. I believe wood boards from dismantled formwork were used as floor boards. When the inner side of boards removed from formwork was placed upwards, it would show oil stain. The Plaintiff might well have walked over such oil stained boards.

12. Taking all factors and circumstances into consideration, I believe the Plaintiff told the truth in court. He was carrying a long, heavy steel rod with 3 co-workers. He walked on a wooden board that was slippery due to oil stain left there. He slipped and then tripped on the edge of another wooden board placed on top of one side of the first board. He fell and suffered injuries as a result.

13. Had care been taken to ensure that wooden boards taken from dismantled formwork were placed with the greased side facing downwards and arranged flush to form a smooth horizontal plane, the Plaintiff would not have slipped or tripped. There was clear common law negligence and breach of statutory duty to provide a safe system of work on the part of the Defendant. Primary liability has been established.

14. Mr. Clough contended that there was contributory negligence. The Plaintiff knew that he would be walking on greased formwork boards. He should have taken precaution. He should have watched his steps. He did not and so he himself is at least 50% to blame. With respect, the charge against the Plaintiff is not borne out by the facts. It was the first day the Plaintiff walked on that floor. He had no reason to expect that those responsible would not take care to ensure that the greased side of wooden board would be placed downwards. Any one having had experience of carrying a heavy load with other people knows that one is bound to be dictated by collective motion. The Plaintiff was carrying a long, heavy steel rod with 3 co-workers. His freedom of movement was restricted. He was at the tail end of the rod. He had to follow the direction of the co-workers in front. His steps had to be in co-ordination with his 3 co-workers. He was pushed and pulled along the way. He could not check every direction, up and down, before making one stride. In these circumstances, I cannot possibly attribute any blame to the Plaintiff. The Defendants are one hundred per cent liable.

QUANTUM

15. Both Mr. Clough and his learned friend Mr. Cheung for the Plaintiff have given me much needed assistance in this area. I am indebted to them. Now, quantum can be broken down into the following heads:-

1.	Pain and Suffering and Loss of Amenities Mr. Clough suggests $250,000.00 under this head. The agreed medical evidence is that the Plaintiff suffers 15% permanent total disability. Even treating the Plaintiff's case as at the lower end of the "serious injury" category, the minimum should be $460,000.00 as advised by Mr. Cheung. So I am fixed on $460,000.00.
2.	Pre-trial Loss of Earnings Mr. Clough divides the time from the date of accident to the date of trial into two periods - sick leave period and post sick leave to trial period. Normally this would be correct but in this case the evidence shows and I believe that the Plaintiff had not been able to get normal work, indeed almost no work at all. So I accept Mr. Cheung's formula of (X+Y)÷Z x 50 months when X is the agreed daily wages at the time of accident at $870.00 times Z which is the number of work days, Y would be present daily wages at $1,252.00 in the same capacity times Z, and 50 months is the length of time between accident and trial. Clearly it is the value of Z that is most significant and most controversial for quantum. I will deal with it in a separate paragraph.
3.	Future Loss of Earnings The standard formula is (Y x Z - N) x 12 x M where Y and Z are already defined as above, N is the monthly salary the Plaintiff should be able to earn with his disability and M represents the notional remaining working life in number of years. For N, Mr. Clough suggests $10,630.50 being the earnings of a statistical employee in the non-productive or service sector. Mr. Cheung says a lower figure of $7,000.00 for the statistical cleaner should be used because Dr. Tsoi has given the opinion that the Plaintiff is able to take up the job of a cleaner which does not require lifting heaving load. Having seen the Plaintiff, I doubt very much if he can easily get employment of any kind. He appears to suffer from backache after sitting for an hour and he has to move about with measured pace and stiffness. I therefore take the figure for N as $7,000.00. Mr. Clough suggests a multiplier of six. I think he has difficulty justifying that knowing full well the Plaintiff is now aged 44. Mr. Cheung shows me a number of comparable Hong Kong cases which support a range of 10 to 12. I therefore take the middle figure of 11 from Mr. Cheung for M.
4.	Loss of Earning Capacity Mr. Clough contends that an award for loss of earning capacity should not be made if there is already an award for loss of future earnings. Mr. Cheung says that I can make an additional award under this head. The award usually amounts to one to two years future earnings or a similar lump sum. As I have already noted that the Plaintiff might well have difficulty getting post accident employment, I would allow a sum equal to two years of post accident employment earnings.
5.	Special Damages The Revised Statement of Damages show a total of $32,708.71 for miscellaneous items. However, quite a few of the major items such as medical expenses in China are not supported by documentary proof as they should be. On the other hand, there are bound to be numerous small items for special damages not claimed because it is just too tedious to list or to keep note of. Therefore, I would allow a round sum of $32,000.00.

16. On the question of Z, viz the number of work days in a month for the Plaintiff as a steel binder, the Plaintiff's own evidence is that he could earn the equivalent of 28 days wages in a month taking into account overtime pay. There are, however, no wages records to support this. The witness called for the Defendants pointed out that the Plaintiff had worked at the construction site where the accident occurred for no more than ten days. In general, casual construction site workers cannot possibly expect to get work for the full 26 days in a month. Besides, the building trade suffers from economic downturns. A lot of steel binders cannot get sufficient work in 1999. 1998 was not much better.

17. The earnings of construction workers are notoriously difficult to assess because work for the building trades fluctuates from season to season in a year and from good years to bad years depending on the economy as a whole. There are so many variables at play, from the weather to personal connection. I do not profess to have any innate or cultivated wisdom to come to an accurate assessment. Doing the best I can, I think I am already generous to hazard 20 as the number of days' earning in a month for this Plaintiff. Let the value of Z be 20.

18. In the premises, there is judgment with costs to be taxed if not agreed for the Plaintiff as follows:-

(1)	PSLA interest thereon at 2% p.a. from the date of the writ to the date of judgment	$460,000.00
(2)	Pre-trial loss of earnings = ($870.00 + $1252.00) x 20 ÷2 x 50 months	$1,061,000.00
(3)	Future Loss of earnings = ($1252.00 x 20 - $7,000.00) x 12 x 11	$2,381,280.00
(4)	Loss of earning capacity = $7,000.00 x 12 x 2	$168,000.00
(5)	Miscellaneous special damages	$32,000.00
(6)	Interest on (2) and (5) at 5.97% p.a. from the date of accident to the date of judgment

Credit must be given for Employees' Compensation already paid at $778,000.00.