RAI BINA v. PACIFIC CROWN ENGINEERING LTD AND ANOTHER

HCPI 338/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.338 OF 2001

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J U D G M E N T

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1. The plaintiff, a 34-year-old Nepalese lady, Madam Rai, seeks compensation for injuries which she sustained on 2 April 1998, when she fell into an uncovered manhole while she was at work at the site of the new airport.

2. The 1st defendant provided workers for its clients and employed the plaintiff to work for the 2nd defendant at that site. The 2nd defendant was the principal contractor of the Passenger Terminal Building.

3. The third party was concerned with other work. It was to construct the main runway and inter alia it was to build in the common access corridor adjacent to the Passenger Terminal Building storm water and oil interception systems, and thereafter to pave the area. Part of their construction included the manhole into which Madam Rai fell.

4. The manholes were to be inspected by the Provisional Airport Authority on the day of the accident. On the day before the accident the heavy metal lids were removed by the third party to enable the manholes to be cleaned and readied for inspection. The lids were left off the holes pending inspection but they should have been covered in the interim by heavy wooden pallets, with warning cones positioned around them.

5. The accident happened when the plaintiff, sweeping the apron area on the 2nd defendant's instructions, fell into one of the manholes, covered not by a wooden pallet but only by a thin sheet of cardboard, and with no cones in sight.

6. None of this is in dispute.

7. The defendants contend that the general safety of the apron area was the responsibility of the third party who were joined as third party to this action by order of the Registrar on 20 December 2001.

8. The 1st and 2nd defendants dispute both liability to make payment and, if found liable, the amount claimed. If found liable, they claim indemnity from the third party.

Liability

9. Madam Rai is a 34-year-old Nepalese lady, 30 at the time of the accident. She had come to Hong Kong in 1996 to join her husband, who is a permanent resident. Since her arrival she had worked firstly for a security company and then for another construction company before joining the 1st defendant in October 1997, to work as, she said, a construction cleaner. I take her to mean a cleaner on construction sites, but precisely what her job was assumes more significance when dealing with quantum. She was sent by the 1stdefendant to work for the 2nd defendant at the airport site and worked there until her accident on 2 April 1998. Her work for any given day was decided by a foreman who was employed by the 2nd defendant and passed onto her and her colleagues by a ganger employed by the 1st defendant. On 2 April she was told to work in an area immediately outside the main passenger terminal building, collecting the rubbish and sweeping the area. There were, she said, many flattened cardboard boxes and she was sweeping while her friends collected the boxes. They had been doing this for three days. It was while she was sweeping the apron area outside the terminal that she stepped on a thin piece of cardboard which was lying over an open manhole and fell into the hole. There were, she said, no signs, warning cones or barriers around the hole. There was nothing, she said when questioned by Mr Shakrani, to indicate that there was a hole under the cardboard, nor were there any wooden pallets of the sort shown in the photographs near the hole.

10. She was questioned about the safety training she had when she started the job and agreed that she had been shown a video about the dangers inherent in construction site work and had been to safety talks. She recalled that she was told not to go near to areas where cones had been placed, and that she should wear a safety hat and proper boots. She denied, however, that anyone had told her not to step on items on the floor, in case there were a hazard underneath.

11. The third party's suggestion that she was to blame for falling into the hole through the cardboard, perhaps by not looking where she was going as she swept the rubbish was an unattractive attempt to shift the blame from where it plainly lay and was soundly rejected by Madam Rai. In the event allegations of contributory negligence were sensibly not pursued.

12. I will, when I deal with quantum, make findings about Madam Rai's exaggeration of her present medical condition. Although I do not believe her evidence on that subject to be reliable, I do nevertheless, having exercised particular care in view of those findings, accept that the accident happened as she claimed. There has, indeed, been no serious challenge mounted against her account.

13. Who then is responsible for the injuries and the losses she has suffered as a result of the accident? She says it is the 1st and 2nd defendants. They say it is the third party.

14. The accident happened in an area adjacent to the passenger terminal building and much time was taken up with who was responsible for the area at the time. It was variously referred to as an "interface area", "common access area", "apron area" and "common access corridor" and a number of different contractors had worked there.

15. The overall control of the building of the airport was with the Provisional Airport Authority ("the PAA"), they were the employer, and different contractors were awarded contracts to carry out different works. The 2nd defendant was responsible for the construction of the main airport building, the passenger terminal and as part of its duties under the contract the 2nd defendant was to keep the site "free of accumulated rubbish and waste at all times."¹

16. Their contract number was 302 and their responsibility was stated in that contract to include the overall management of the Terminal Building site², which is defined to include "the passenger terminal building structure and access structure, any levels or other parts thereof and the area of the ground transportation centre"³ (emphasis added). In my judgment the "access structure" would include the common access area which we are here concerned with, and indeed evidence was led of the 2nd defendant constructing a tunnel on that land as part of its contract.

17. It cannot sensibly be disputed that the common access area was part of the 2nd defendant's site, but that is not an end of the matter, for other contractors also worked on the area. Of particular importance to this case is the third party. Their contract with the PAA, contract number 401, saw them involved in major runway work but also required them to build drainage and oil diversion systems throughout the common access area and when they had finished, to pave it. The work they were to carry out on the common access area was entitled 401/48.

18. The 2nd defendant was required by its contract to allow the third party access to the area to enable it to carry out its own works. At clause 9.26.1 of contract 302⁴ :

"[the 2nd Defendant] shall provide access to the contractor for contract 401 for the installation of underground utilities and civil works within the common access corridor around the perimeter of the passenger terminal building."

And, at clause 9.26.2 :

"[the 2nd Defendant] shall provide access to the contractor for contract 401 for the construction of the apron and head-of-stand road including block paving up to the building façade.....to enable the contractor for contract 401 to complete his works prior to the commencement of the Fire Services inspection in the passenger terminal building."

And, at clause 9.26.3 :

"The works to be executed by the contractor for contract 401 will be phased requiring him to have access to areas for two or more periods for installation of utilities and the subsequent construction of apron paving and block paving. [The 2nd Defendant] shall provide access to areas progressively along the common access corridor in phases to be determined through development of the Co-ordinated Construction Programme."

19. Similarly the third party's contract indicated that access was to be provided to them to the common access area by the 2nd defendant, clause 9.17.1 and 2 of their contract with the PAA indicating :

"[The 3rd Party] will be provided access by [the 2nd Defendant] for the works within area 401/48.

[The 3rd Party] shall be given phased and intermittent access to area 402/48 for installation of utilities and the subsequent construction of apron paving, block paving and roads. The timing and phasing of such access shall be determined through development of the Co-ordinated Construction Programme."⁵

20. Timing and phasing were referred to by Mr Alan Craven for the 2nd defendant. There was a weekly meeting chaired by the PAA which was attended by the 2nd defendant and other contractors who had work to do in the common access corridor. The meeting was to coordinate the works, a sensible measure designed to enable different contractors each to carry out their own work in the common access area. The fact that it was the 2nd defendant who gave access to others, under the direction of the PAA, does not in my view necessarily mean that it retained overall control and responsibility for the area, despite the strenuous efforts of counsel for the Plaintiff and the third party to persuade me otherwise. It is, as Mr Sakhrani pointedly said, more complicated than that.

21. The plans produced, while showing where the area is, are not altogether helpful in determining who was in possession at any one time. For example a site layout plan dated November 1995 shows the common access area marked "302"⁶, while another dated April 1995 shows it marked 401/48⁷. The plans are likely to have been produced at different times for different purposes (and this is what Mr Ajaz Shafi, for the third party effectively said) and it would be wrong now for me to assume that because one plan bore the number of one particular contract, that a particular contractor controlled the site on the date of the plan. Mr Craven, the Area Manager of the 2nd defendant at the airport site at the time, produced exhibit D2 a plan which he marked to show the areas "taken out of contract 302 between 1995 and 1998". I am not sure what he meant by this phrase. If he meant that the area was no longer part of contract 302, then he cannot be right because the 2nd defendant had at the very least an ongoing responsibility to keep the site free from the considerable amount of debris which I was told was generated. Indeed when cross-examined he agreed that the 2nd defendant had overall management of the site including the area where the accident happened⁸ (it would appear so from the documents).

22. Of central importance in this case is the question of who were the principal contractors in charge of the common access area at the time of the accident. Was it the 2nd defendant by virtue of contract 302, or was it the third party carrying out works on manholes it had constructed pursuant to contract 401. The answer seems to me to be plain. At different times they both were.

23. Counsel have referred me extensively to Mr Justice Hooper's decision in AG v. John Lok and Partners and others⁹. The court was there concerned with a magistrate's findings under the Factories and Industrial Undertakings Ordinance, Cap. 59 and the Construction Sites (Safety) Regulations, Cap. 59 and in the course of his decision the judge said¹⁰ :

" Although the term "principal contractor" is not defined in the ordinance, nevertheless it must mean at law the head contractor, or the one contractor from whom the other contractors derive their contracts, whether directly or through other contractors. It is analogous to a tenancy. Just as you may have a principal tenant from whom sub-tenants derive their tenancies, so you may have a principal contractor from whom sub-contractors derive their contracts. In this case the respondent was the only contractor with a direct contractual relationship with the employer."(emphasis added)

And¹¹ :

" the regulations do not appear to envisage more than one contractor being responsible for a particular site from the commencement of the construction work until its ultimate conclusion."

24. The present case is however markedly different from John Lok. Here it is not a case of the third party being a subcontractor of the 2nd defendant, nor is it a case of different contractors being responsible for a particular site. Both parties have their own contracts with the PAA, they are each principal contractors, and each have their own work to do on their own sites, as specified in their contracts. The construction of the new airport was a huge task and several contractors were involved. Inevitably their work on occasion overlapped as did their sites. They were each responsible for their own sites and where the sites overlapped they were each responsible for their own work on their own sites.

25. By the time of the accident, the 3rd defendant had largely completed its work at the common access corridor. Mr Craven conceded that the paving would have been finished in January or February 1998 and what would have remained would have been the completion of the paving of awkward areas, inspection, cleaning and line marking. Mr Shafi, the site agent for the 3rd defendant until the weekend before the accident thought that all remained was line marking.

26. On any account the work the third party still had to do on the common access corridor was limited. It had obtained permission for its workers to clean the manholes a few days before the accident and on 1 April they were ready. Inspection by the PAA was to be on 2 April, the day Madam Rai fell into one of them.

27. Equally, however, the 2nd defendant still had work to do at the common access area under it's own contract, at the very least cleaning away the large amounts of debris generated daily. Indeed it was whilst performing these duties for her employer that Madam Rai fell into the manhole left insecurely covered by the 3rd defendant.

28. It is however, in my opinion to simplistic to say that the manholes were part of the 3rd defendant's site, that they were the responsibility of the 3rd defendant and that therefore the 2nd defendant had no responsibility for Madam Rai toppling into one of them. The 3rd defendant does indeed have its own responsibility for the works it has on its own site, but similarly the 2nd defendant has responsibility for work done on its own site. The sites, as I have suggested earlier, overlapped. Each contractor had works to do on their own sites and on occasion the sites were in part physically the same. The 2nd defendant had not built the manholes but it had sent its ladies out to work on its site to clean the common access area which included on 2 April, two uncovered manholes. The 2nd defendant in doing so bore a number of responsibilities (as indeed did the third party, but it has not been sued).

29. It is with these facts in mind that I have approached the plaintiff's claim. Her claim is brought under a number of headings.

Common Law and contractual duty of care

30. The 1st defendant, as the plaintiff's employer, owed a non-delegable common law duty of care to provide a safe place and system of work. The 2nd defendant owed a common law duty of care to staff it sent to clean the site. These duties are to take reasonable care and do not impose an absolute liability.

31. Mr Shafi was the site agent for the third party until the weekend before the accident. And when cross-examined agreed that it was the responsibility of the third party's foremen to see that when the heavy metal covers were taken off the manholes, in readiness for inspection, sturdy wooden pallets were in place. He accepted that responsibility for the safety of the manholes was with the third party. He is right.

32. Nevertheless, the 2nd defendant knew that the third party was carrying out some works in relation to the manholes. As Mr Shafi said, his employers had to get access from the 2nd defendant to do the work and they would have known the third party wanted to do some work there. He could not say with any certainty however that the 1st or 2nd defendant knew what the works were.

33. When questioned about the system used, Mr Craven for the 2nd defendant told me that a supervisor employed by the 2nd defendant would delegate to a ganger employed by the 1st defendant the work to be done on any given day. The ganger would pass this on to Madam Rai and her colleagues. He agreed that both the ganger and supervisor would look at the area before the labourers went to work and accepted that (of course) when the cleaners swept the area the 2nd defendant had "some" duty to ensure they were safe. That is what should have happened. He could not, however, tell me if anyone had in fact checked the common access area before Madam Rai went to work. The area looked much as it does in the photographs and having heard the evidence and seen the photographs I am satisfied that they should have checked the site, a reasonable requirement for those supervising the work in the circumstances of this case. If they had done so, they would have discovered that the metal covers had been removed from the manholes and replaced with thin sheets of cardboard. They did not and sent Madam Rai into a dangerous workplace. What happened to her was foreseeable. They were in breach of their duty of care.

Regulation 38P(1) of the Construction Site (Safety) Regulations, Cap. 59I

34. The 2nd defendant is liable, she says, under Regulation 38P of the Construction Sites (Safety) Regulations, Cap. 59I. This particular Regulation no longer exists, but it was in force at the date of the accident. It read :

"(1) The contractor responsible for a construction site shall ensure that every opening, corner, break, edge or other dangerous place through or from which any person on the site is liable to fall a distance of more than 2 metres is provided with either

(a) a suitable guard-rail or guard-rails of adequate strength to a height of between 900 millimetres and 1150 millimetres above the surface across which persons are liable to pass so erected as to prevent as far as possible the fall of persons; or

(b) a covering so constructed as to prevent the fall of persons, materials and articles; any such covering shall be clearly and boldly marked to show its purpose or be securely fixed in position.

The plaintiff relies in particular on Regulation (1)(b) and to do this she has to establish that the 2nd Defendant was the contractor responsible for the construction site where the accident happened."

35. By Regulation 2(2)(a) :

"... a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principle contractor working there..."

And under the ordinance section 2(1)(a), "construction work" includes external cleaning.

36. I have earlier indicated that in my view when the 2nd defendant was working on the site it was the principal contractor and accordingly bore the obligations of the Regulations. Regulation 38P is mandatory (shall ensure) and imposes a strict liability on the contractor responsible for the construction site. The manhole was not sufficiently covered or marked.

37. The 2nd defendant was in breach of that statutory duty.

Occupational Safety and Health Regulations, Cap. 509

38. Regulation 6(1) states as follows :

"If a platform, pit or opening located within a workplace could be a danger to the safety of persons, the person responsible for the workplace must ensure that the platform, pit or opening

(a) is securely fenced to a height of 900 mm (measured from the upper surface of the platform, or of the edge of the pit or opening); or

(b) where it is not so fenced, is sufficiently well protected to the satisfaction of the Commissioner."

And section 3(2) indicates that :

"For the purposes of this Ordinance, the person responsible for a workplace is the employer of the employees who are employed to carry out work there, or if the employer does not exercise any degree of control over the relevant part or aspect of the workplace, means the occupier of the workplace."

39. Madam Rai's employer was the 1st defendant but it was a supplier of labour and had no control over what the 2nd defendant instructed the workforce to do. As I have earlier indicated however, the 2nd defendant, was the occupier of the workplace when it's workers were carrying out it's contractual obligations.

40. The regulations are again impose a strict liability duty which the 2nd defendant was in breach of.

Duty of care under Occupiers Liability Ordinance, Cap. 314

41. In view of my earlier findings liability of both defendants under this heading must follow.

42. I find that liability is established against the 1st and 2nd defendants.

Indemnity

43. The 1st and 2nd defendants contend that if they are liable to the plaintiff they should receive an indemnity from the third party.

44. As I have related, the third party was the principal contractor responsible for the construction of the first runway, aprons and other works under contract 401 including the construction and maintenance of storm water and interception systems. The manhole into which the plaintiff fell was part of such a system and was constructed by the third party. The third party had completed construction of the manhole and had cleaned it out on the day before the accident pending inspection by the PAA. That inspection was to take place on the day of the accident. The third party had, I am satisfied, removed the heavy metal cover from the manhole pending that inspection. There was, indeed another, similarly uncovered manhole nearby. Mr Cuta, who appeared for the third party told me that the hole should then have been covered by a substantial wooden pallet and marked by cones until the metal covers could be replaced. He was unable to tell me what had in fact happened. Mr Shafi's later evidence was to the same effect that the holes should have been covered but that he did not know if in fact they were. Given Madam Rai's evidence I have no doubt that no wooden pallet was placed over the hole as it should have been, nor were warning cones in place. Mr Craven could think of no reason why any contractor would need to remove them and neither can I. I find as a fact that the third party was responsible for the manhole being covered by no more than a thin sheet of cardboard when Madam Rai stepped on to it. Mr Shafi accepted as much.

45. The defendants were in breach of their common law and statutory duties to the plaintiff and of course must bear a proportion of the blame, but one cannot escape the fact that the primary cause of this accident was the negligence of the third party. The site was, as its name suggests, a common access point to the Passenger Terminal Building. Any number of workers would have passed across it daily and this perhaps emphasises the seriousness of the third party's conduct. The contractual duty to ensure those manholes were safe lay with the third party alone, in general terms both sides were responsible for the safety of their works. As I have indicated, had the third party been sued it would doubtless also have been liable to the plaintiff for breach of a number of duties

46. The third party must indemnify the defendants and will pay the majority of the damages. The defendants will pay 20% of the damages and the third party 80%.

47. The 2nd defendant claims recovery pursuant to section 25(1)(b) of the Employees' Compensation Ordinance, Cap. 282, of the amount of $154,336 paid to the plaintiff.

48. This issue was recently considered by Deputy High Court Judge McMahon¹² where he reviewed the relevant legislation and cases in Hong Kong, the UK and Australia. He concluded that the benefit of section 25 was not available to an employer who was contributorily negligent, a conclusion which obtains in both the UK and Australia. The point has not been argued before me at length, but I am bound to say, having carefully read Wong Yat Chiu, that I respectfully agree with the learned judge's reasoning. I decline the 2nd defendant's claim for recovery of $154,336 from the third party.

Quantum

49. Madam Rai is 34 now and was 30 at the time of the accident. She is married and has three children. She lives in Hong Kong with her husband who holds a permanent identity card. Her husband is a construction site worker. The family are all Nepalese and the children live in Nepal.

50. She had not worked in Nepal apart from running a small shop for a while, her time since she left school was spent bringing up her children. She arrived here in 1996 and from October 1996 until April 1997 she worked for a security company and was paid $6,000 per month. She left that job to work for a construction company, where she stayed until October 1997. That job paid her $10,400 per month and finished when the project was completed. She described her work as "smoothing concrete", which sounds like a labouring job of some sort.

51. On the 24 October 1997 she started with the 1st defendant who contracted her labour out to the 2nd defendant to work at the Passenger Terminal building at the airport. Her job was, she said, as a "construction cleaner", and involved cleaning the site, picking up debris and taking it to the rubbish collection points outside the building. She said she did whatever work was assigned to her and this included picking up stones, shovelling soil, moving planks and metal.

52. She worked for the 1st defendant from October 1997 until April 1998. October and April were both short months for her she started on 24 October and her accident was on 2 April and she therefore worked for five full months. Her average wage for those months was $10,649 per month according to figures provided by the 1st defendant.

53. When she stepped on to the uncovered manhole she fell some 3.3 metres, landing heavily and suffering fractures of the first and second lumbar vertebrae and of her left superior and inferior pubic rami. An ambulance took her to Princess Margaret Hospital where she was "treated conservatively with TLSO brace" and analgesics¹³. She was kept in hospital for precisely two weeks and received regular outpatient treatment and physiotherapy until 15 July 1998. She wore the brace for about one month, walked with a frame for two months after she left hospital and used a walking stick for some months. She was granted sick leave until 15 June 1999.

54. Her first job thereafter was in September 1999 when she went to work in a garment factory earning $180 per day. This job however only lasted for 15 days. She left complaining of back pain. She did not work for the next 12 months and opened the small shop she still runs in September 2000. Explaining her lack of work for that 12 months, she said that she tried to get a job but could not. Having said that, however, she next told me that she did not in fact apply for any work after she left the garment factory, believing that her back would prevent her from working.

55. Her shop clears about $3,000 each month she says, although she has not been able to produce any documentation to confirm this. Mr Sakhrani is critical of the lack of documentation confirming the income from her shop but I think that is harsh. I have seen the shop on the surveillance video. It is a small shop in an arcade of similar stalls, selling bangles, saris and the like. The lack of books of account is unfortunate but not surprising. It is, she said, a cash business. Her rent is shown to be $7,000 each month and I am prepared to accept that after her expenses she would not be likely to earn much more than $3,000 each month.

56. Her back is to this day, she says, continuously painful, worse in cold weather, and were it not for the accident, she claims, she would still be working on construction sites.

57. Clearly I had to look carefully at Madam Rai's evidence, she was after all seeking a good deal of money from the defendants. Before she started in chief I was invited to watch a surveillance tape filmed in September last year. Her evidence that she is continuously in pain, that she cannot sit without pain for longer than half an hour, that she cannot walk down stairs without pain and cannot lift heavy objects was, frankly, not confirmed by the tape which showed her sitting down happily for 20 minutes eating lunch with her husband, carrying plastic bags of shopping including a decent sized carton of beer and walking down 35 steps, all without obvious signs of discomfort. I was careful not to form early and perhaps unwarranted conclusions from a brief viewing of such a tape but what I saw confirmed my view that care must be taken with her evidence.

58. As it turned out there was good reason for my caution.

59. Her carefree posture at the restaurant contrasted markedly with her appearance in court where she constantly sought to ease her sitting position, noisy endeavours marked by sighs and exaggerated movement.

60. That is perhaps not so remarkable and would not of itself cause me to doubt her evidence about her condition. Cross-examination both of her and of Dr Chiang did.

61. Her evidence that her condition was so poor that she could not even do the housework, did not sit easily with Dr Chiang's assessment of her condition. It was another example of exaggeration. For 12 months after her employment at a garment factory she sought no job, not even one involving light work when she was, on Dr Chiang's findings, well able to do so. She agreed that she been to Nepal for one month for personal reasons in this period.

62. She had opened her shop some twelve months or so after her job in the garment factory. Despite only clearing $3,000 per month she has continued with it to this day. She agreed when cross-examined that her shop is in an arcade peopled by Nepali shopkeepers and that she works a short day from about 12 noon until 5 or 6 p.m. She agreed that this was not demanding work and that she was working with members of her own community. Cross-examination was designed to show that this might well be a job which suits her but she nevertheless claimed that she would prefer to work at a construction site for the extra money. Having said that, however, she admitted that she had not in fact applied for any jobs since her short lived experience in the garment factory.

63. Cross-examined about her pain she claimed that she was in pain all the time, a plain contradiction compared with what she had told Dr Chiang¹⁴.

64. I was not persuaded that Madam Rai was being entirely straightforward with the court. I was satisfied, indeed, that she significantly exaggerated her present condition.

65. Dr Chiang was the agreed medical witness and he examined her some 10 months ago. His evidence was based on his examination of Madam Rai, recent x-rays and his study of earlier medical reports.

66. He acknowledged that back pain is a difficult area to diagnose and that it is an area in which the reliability of the patient is particularly important. Cross-examination then proceeded to demonstrate a number of areas in which Madam Rai had not shown herself to be a reliable patient.

67. His report¹⁵ noted that :

"Diffuse tenderness was described on palpitation of the upper lumbar spinal processes, ..."

In court he agreed that this was not the area of injury and when asked if this was a reliable complaint from Madam Rai he diplomatically conceded that he would "not put weight on it."

68. His report¹⁶ went on to describe two tests he carried out on Madam Rai. The "straight leg" test asked her to raise her legs from the supine position and both sides were limited to 30 degrees where 70 to 90 is normal. It is designed to look for nerve root pressure in the back. This was followed however by the Laseque's test, a test to examine exactly the same function but more objectively. It is a cross check performed without the patient being aware of that. In this test she achieved a normal result which, he agreed, called into question her reliability in the straight leg test.

69. A vertex compression test was carried out pressing down on the head of a sitting person. In this case, said the doctor, it should not have caused any pain and yet Madam Rai complained of mild to moderate pain in her back. He agreed that again, her complaint was unreliable.

70. On testing the muscle power of her legs¹⁷ she showed "significant and diffuse" weakness and yet the muscle tone was good and suggested that the power of both legs was normal. The doctor's objective observation again demonstrated that her complaint was unreliable.

71. She had listed eight complaints to the doctor. I do not now propose to go through all the doctor said about these in court, suffice it to say that after his examination he did not accept that they were all as extensive or severe as she claimed.

72. I acknowledge that pain and its tolerance is a subjective matter but I was satisfied, having heard the doctor's evidence in court that Madam Rai is now exaggerating her complaint. The fracture of her pelvis is "well healed"¹⁸ and should cause no further problems. So far as the two fractured vertebrae are concerned there is now a "mild compression of the vertebral body of the L1 and L2, with about 10 to 20% loss in the anterior vertebral height"¹⁹. The doctor would expect in this case a "more satisfactory functional recovery." There was, he said, no evidence of instability and no compression of neural tissues. He thought the fractures had achieved a reasonable recovery²⁰.

73. On the other hand there was some limitation in the end range of movement "mainly localised at the thoracolumbar area", but nevertheless "the general range of movement could still be considered as reasonable"²¹. There was some mild stiffness.

74. Having considered the present condition of the pelvis and vertebrae the doctor concluded that Madam Rai is capable of "on and off manual work activities, or on and off type of heavier object lifting", with a "likely decrease in the end range capacity of handling of heavy objects and heavy manual work"²². Further regular treatment is not necessary.

75. Asked in court about the weight she could now manage, she could, he thought, lift the same weight as before the accident, but not as frequently. This, I think, encapsulates her situation neatly and having heard all the evidence and seen what it was based on, I accept it entirely.

76. His written report concluded among other things that :

"Taking into consideration the job activities in the pre-injury job, she might not be able to return to the job.

She should be able to working jobs with some manual activities but less than that required in the pre-injury job. She could work in casual jobs, i.e. those involving cleaning type of work in the construction site and in interior decoration. She could also work as a shopkeeper and a cleaner."

But it soon became clear as he was questioned in court that these conclusions were based on a mistaken premise.

77. Her duties at the airport site may briefly but fairly summarised as cleaning a construction site, a job which would involve lifting objects which on occasion might be heavy or unwieldy, but which did not involve continuous lifting. That is pretty much what the doctor said she could now do. He concluded that she "might not be able to return" to her former job because he was under the impression that her former job also involved "drilling and managing" concrete. When further questioned it appeared that he thought she would have to regularly hold a large drill horizontally in both hands to work concrete. Not a roadside pneumatic drill, but hardly a domestic Black and Decker either.

78. The work he recommended she could now do "cleaning type of work in the construction site" - is in fact what she was doing when she was injured. Mr Craven talked of the cleaners at the site clearing away off-cuts of boards, ducts, wire and such like none of which is heavy unless in quantity. If an item were heavy, the cleaning ladies would lift it together.

79. Madam Rai's evidence of her inability to do such work must be seen in the light of the doctor's evidence.

80. For the reasons I have given, I am satisfied that she is exaggerating and that she could indeed go back to the job she was engaged in at the time of the accident. There is some residual disability, as the doctor acknowledged, but it is clearly limited and would not prevent her working as she was at the airport.

PSLA

81. She claims $350,000 under this head, with the defendants conceding $200,000. The plaintiff refers me to two cases and the defendants to four (one of which was common to both) Char Sai Siu v. International country School Club & Anor, HCPI 522 of 1998, Tang Shau Tsan v. Wealthy Construction Co. Ltd, CACV 58 of 2000, Lee Yuk Lam v. Royaltelle International Ltd, HCPI 187/95, Chan Siu Lun v. Hui Cho Yee, HCPI 120/97 and Yeung Sze v. Win Art Design & Decoration Co. Ltd, HCPI 6/2000. While such cases are instructive, they are of course all based on their own particular facts, none of which will be the same.

82. The four categories set in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657 have been revised since that date and in Leung On & Anor v. Chan Pui Ki [1996] 2 HKC the court thought the "serious injury" category might warrant awards in the band $400,000 $540,000, but this, although the lowest category, envisaged :

"... a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain."²³

83. Madam Rai's condition does not approach this, as she accepts. I do not propose to rehearse the evidence again. I have no doubt the injury was painful and that her time in a brace was uncomfortable. Four years after the accident she has residual symptoms in her back involving mild compression of two vertebrae and some limitation in the end range of movement. Her back shows some mild stiffness. Her fractured pelvis is healed and no further treatment is required. She may yet suffer mild pain, particularly in cold weather.

84. I shall allow $250,000 under this head.

Pre trial earnings

85. There is no dispute as to her earnings at the time of the accident. She was paid a basic wage of $350 per day but her earnings in fact averaged $10,649 per month including overtime.

86. The airport was finished in July 1998 and work at the site ended then. Madam Rai's accident happened on 2 April and her sick leave extended until June 1999. I am prepared to assume in her favour that, but for the accident, she would have found similar work after the airport site closed at a similar wage. She will receive a sum to compensate her for lost wages from 2 April 1998 to September 1999. I shall make no reduction for the one month's holiday which she took in Nepal. I accept that was a trip she might well not have made had she been working.

87. It took her until September 1999 to find work after her sick leave finished. Given her lack of English or Cantonese, that is perhaps not surprising and it would perhaps be unfair to expect her to march successfully back into employment on the day her sick leave ended.

88. In view of my findings about her medical condition and her ability to work there will be no award for loss of earnings thereafter.

89. It may be that the job at the garment factory involved continual heavy lifting and it may not have been suitable for her, but I am satisfied on the evidence I have heard that her injury did not stop her finding work of the sort she had at the airport. Madam Rai was a construction cleaner, not a labourer and had no specialist skills. Her work involved lifting discarded material, but as Mr Craven told me it was not heavy, unless in quantity when assistance would be available. I have referred to Dr Chiang's findings. There is no reason why she could not return to work equivalent to her pre injury job when her sick leave finished.

90. The period from 2 April 1998 until September 1999 comprises 17 months. 17 months at $10,649.33 = $181,038. I award this sum for her pre-trial loss of earnings.

Future loss of earnings

91. The evidence did not support a finding for future loss of earnings. There is no award under this head.

Special damages

92. She claims a total of $6,258 for hospital charges, outpatient charges and travelling expenses. These are reasonable and will be awarded.

Loss of earning capacity

93. Although not pleaded counsel for the defendants and third party agree to $50,000 under this head. This amount will be included.

Summary

94. In sum I award the following :

PSLA	$250,000
Pre-trial loss of earnings	$181,038
Special damages	$6,258
Loss of earning capacity	$50,000
	$487,296
Less : ECC claim	$154,336
	$332,960
	=======

95. There will also be interest on PSLA at 2% from the date of the writ and interest on pre-trial earnings and special damages at half the judgement rate from the date of the accident.

96. On the plaintiff's claim there will be judgement for the plaintiff in this sum with costs against the defendants.

97. In the third party proceedings there will be judgement for the defendants against the third party with costs of the third party proceedings and I order that the third party indemnify the defendants in an amount equal to 80% of the sum payable to the plaintiff including her costs together with interest pursuant to section 48 of the High Court Ordinance, Cap. 4.

98. The costs orders are orders nisi.

1 12.9.1, see page 424 of bundle 5

2 see page 525 of bundle 5 and 12.1.2 of contract 302, at page 421 of the bundle

3 12.1.3 of contract 302, see page 421 of bundle 5

4 see page 417 of bundle 5

5 page 265 of bundle 4

6 page 103, bundle 4.

7 page 123, Tab 2 of bundle 1

8 and see page 525 of bundle 5, where the 2nd defendant's contract confirms this

9 [1986] HKLR, 325

10 at page 336

11 at page 334

12 Wong Yat Chiu & Anor v. Chan Kwok Wa & Ors [1999] 2 HKLRD 849 at pages 867 to 872

13 Dr Ho in his report dated 8 August 1998

14 see page 3 of his report

15 see page 4 of Dr Chiang's report of the 5 June 2002

16 again at page 4

17 page 5 of Dr Chiang's report

18 page 8 of Dr Chiang's report

19 page 7 of Dr Chiang's report

20 page 8 of his report

21 page 8 of his report

22 page 9

23 Lee Ting-Lam v. Leung Kam-Ming