LAM FUK PAU v. CANTON CURTAIN WALL ENGINEERING LTD AND ANOTHER

HCPI 488/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.488 OF 2004

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J U D G M E N T

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1. This is a personal injury claim.

2. The 1^st defendant was a subcontractor to the 2^nd defendant, at the latter’s construction site at No. 11—21 Cheong Lok Street, Kowloon, for the supply and installation of windows.  The plaintiff was employed by the 1^st defendant as a plasterer.  At the relevant time his job was to plaster in window frames on the external wall of the building at the site. 

3. In brief, on 5 January 2002 in the afternoon the plaintiff was plastering, or filling in around a window frame at the 2^nd floor level of the building.  He was working from outside, on a double row scaffold with a working platform of wooden planks.  Just inside the window was a temporary site office, a wooden structure about 2.4m high with a roof made of plywood boards nailed to the underside of wooden beams.  The plaintiff plastered the bottom and lower sides of the window frame but could not reach the top of it.  In order to do so, he climbed inside the window, and stood or squatted on top of the roof beams of the office, but then stepped on to the plywood boards which gave way under his weight, so that he fell through them to the floor of the office and suffered injury.

4. The plaintiff’s claim is for breach of statutory duties under the Occupiers’ Liability Ordinance, Cap. 314, the Factories and Industrial Undertakings Ordinance, Cap. 59 and the Occupational Safety and Health Ordinance, Cap. 509, and for negligence and breach of contract of employment.  The particulars are set out in the Statement of Claim and there is no need to set them out but basically the complaint is one of failure to provide a safe means of support and a safe system of access thereto.

5. The defendants deny liability and plead contributory negligence.  In particular they say that the plaintiff could have moved the working platform to a higher point on the scaffold to enable him to complete his work.  He failed to obey an instruction to work from the scaffold; he went on to the office roof when he knew or ought to have known that it was not a working platform, and was not safe; he failed to lift the working platform to a higher level on the scaffold; and he failed to anchor his safety belt to the scaffold.  The plaintiff by way of reply pleads that the platform could only be moved left to right, not up and down.

The facts

6. Evidence as to how the accident happened came from the plaintiff himself and from a statement given by him to the safety officer of the Labour Department who investigated the accident.  Various photographs taken by the safety officer were before the court, as was his report.  Of course the photographs do not necessarily show everything, and in particular the working platform, exactly as it was at the time of the accident, but some are helpful, and in particular a composite photograph taken of the roofless office and showing the window frame above it.  For the defendants, evidence came from the 1^st defendant’s foreman, Mr Wong Wing Sun, who gave a detailed description of the scaffold and what, in his view, the plaintiff should have done in order to reach the top of the window.  He also drew diagrams which were admitted as exhibits.

7. There is no real dispute on the facts and it is not necessary to set out the evidence in detail.  The plaintiff was an experienced worker and had worked as a plasterer since 1988.  He had worked as such for the 1^st defendant since about 1998 or 1999.  He was instructed by Mr Wong to go to the site and complete the plastering of two windows on the fifth floor and one on the second floor.  He first plastered the windows on the fifth floor and then proceeded to the second floor.  From Mr Wong’s evidence it does not appear that the defendant was given any very specific instruction to work from the scaffold or not to go on to the office roof; he says that he told the plaintiff that the way to plaster was to do it outside on the scaffolding, but he could not remember the exact words he had used.

8. The window at the second floor was 2.5m high by 1m wide and was fixed in an aperture 1m above the floor level.  Immediately inside the window was the site office; it had a small opening in its wooden side, looking out through the window and according to the safety officer of the Labour Department who investigated the accident, and whose report is before me by agreement it was about 8 feet, or 2.5m high overall.  The office roof was made of cross-beams with plywood boards nailed beneath them.  Mr Wong says, and I accept, that the top of the window frame was about 700mm above the roof of the office.

9. Outside the building there was a double row bamboo scaffold.  According to the safety officer the distance between any two standards or uprights was 70cm and that between any two ledgers or horizontal bamboo poles was 70cm.  The distance between the outer and inner layers was 70cm, and that between the inner layer and the wall was 20cm.  Mr Wong, the foreman gives slightly different dimensions; he puts the distance between the horizontal poles at 90cm.  In any event, according to him and as may be seen from the photographs, there were cross-pieces between the inner and outer scaffold layers at every second horizontal level.

10. There was a working platform outside the window at about the second floor level.  According to both the plaintiff and Mr Wong, it was below the bottom of the window.  It consisted of two parallel wooden planks, side by side on the bamboo cross-pieces.  Mr Wong gives the dimensions of each plank as 2.5m x 20cm x 30mm and its weight at about 40-50lb.

11. The plaintiff could not plaster the inside of the lower part of the frame from inside the building because of the presence of the office; he had to work outside the building on the scaffolding.  According to the plaintiff, he had to apply the cement from the inside of the frame to ensure a good seal and avoid later seepage; Mr Wong seems to disagree with this, but it does not matter because obviously, at the lower level the cement could be applied in this way by a person standing outside the window on the scaffold, for that is how the plaintiff did it.

12. It is obvious from the dimensions that the plaintiff could not have reached the top of the window frame so as to plaster it from the existing working platform, and I accept that he could not.  I also accept that he climbed in through the window frame above the office roof level, a gap of about 1m x 70cm which would be easy enough for him to get through.  He then stood on the beams of the office roof.  When he moved — he says that he stepped back — he must have stepped off the beam and on to the plywood, which could not support his weight.

13. The plaintiff says, and I accept it, that he was wearing a safety belt with a line which he secured to the scaffold while working on it.  He did not secure the line when he went on to the office roof; he says, and again I accept it, that there was nothing above him to which the line could be secured.

14. It is obvious that the planks of the working platform could have been moved up to the next level of bamboo cross-pieces, either 140cm, according to the safety officer, or 180cm, according to Mr Wong, above the existing level.  If that had been done, the plaintiff could have stood on the planks to reach through the top of the window frame so as to apply the cement from inside.  It is of course the defendants’ case that this is what the plaintiff should have done.

15. According to Mr Wong, the plaintiff could have stood on one of the planks while moving the other one up.  He would then have had to step off the plank and straddle the next horizontal pole 90cm higher, putting one foot on the horizontal pole at the level of the plank and hooking the other one around an upright.  See the drawing at Exh. D2.  He would then have reached down and lifted the second plank up to the level 180cm above.  While doing this, the plaintiff would have had his safety line attached to the scaffolding above him.  He could have done this on his own; each plank was not too heavy for one man to lift.

16. According to the plaintiff, he did not move the planks up because he was the only man working there.  The plank was too heavy; it weighed about 40 catties.  Further, it was too long.  Also the bamboo cross-pieces were rotten and it would have been dangerous to put the planks on to them.  Cross-examined, however, he said that he would have been able to lift 40 catties in his pre-accident state of health.  He also said that the planks were laid on smaller plank cross-pieces and it would have been necessary to move these to the higher level also.

17. I think some confusion seems to have crept in at this point, because it is pretty clear that the boards were laid on the static bamboo cross-pieces rather than on any moveable short plank cross-pieces.  There also does not seem to be any support for the plaintiff’s evidence of rotten bamboo cross-pieces; this does not appear in the safety officer’s report.

Liability

18. The issue on the liability of the defendants is simply whether the defendants provided a safe means of support and a safe position for the plaintiff to plaster the top of the window.  This is the effect of the various particulars of negligence, breach of contract and breach of statutory duty.  The safe means of support and position would necessarily have been on the scaffolding.  I do not think there was any duty on the defendants to make safe the top of the office as a working platform, which it obviously was not; nor do I think there was any particular duty on them to guard against the plaintiff stepping on to it.  If a safe platform had been provided, there would have been no need for him to do so.

19. Obviously the working platform and the system of using it to work at the bottom of the window frame, and up as high as a man could reach was safe.  The platform could have been raised to a higher position, but it was not.  So the plaintiff was not provided with a safe means of support or position for him to work on the top of the window frame.

20. The defendants say that it was up to the plaintiff to raise the working platform himself.  I can accept that would have been safe for the plaintiff to do this, if he had not been working alone.  However it appears to me from the description given and diagrams drawn by Mr Wong that it was inherently dangerous for the plaintiff to attempt to do it himself.  The plaintiff would have had to straddle a horizontal bamboo pole, then reach down to foot level, while twisting sideways and anchoring himself by one foot hooked round a vertical pole.  He would then have had, in this twisted position, to raise the plank — even if only one end at a time — to about head height.  To me this appears to be a recipe for some kind of back injury.  It would not have been safe, and the plaintiff should not have been expected to do it.

21. I conclude therefore that liability is established for failing to provide the plaintiff with a suitable safe position to carry out the work of plastering the window frame, as required by the Occupiers’ Liability Ordinance; failing to provide and ensure the use of a scaffold or other means of support, which was safe for the purpose, having regard to the work to be done, as required by Regulation 38C of theConstruction Site (Safety) Regulations; failure to comply with section 6 of the Occupational Safety and Health Ordinance as pleaded; and for negligence and breach of contract of employment.

Contributory negligence

22. It is pleaded that the plaintiff failed to obey an express instruction to work from the scaffolding.  I do not see that this is made out, in the absence of clear evidence of what Mr Wong told the plaintiff.  It is also pleaded that he should have raised the working platform, and I have dealt with this above. 

23. However, to my mind the plaintiff was obviously negligent of his own safety when he went on to the office roof.  He knew or ought to have known that it was not placed there as a working platform and was not safe to use as such.  The beams would no doubt be strong enough, but it must have been obvious that what was below them was just plywood board which would not support a man’s weight.  There was, furthermore, nowhere for him to attach his safety belt line.

24. The plaintiff should not have gone on to the office roof.  Rather he should have contacted Mr Wong so that some steps could be taken to provide him with a safe working platform.  He must, I think, be taken as equally to blame and I assess his contribution at 50%.

Quantum

25. As a result of the accident, the plaintiff was found to have suffered a fracture of the right transverse processes at the L2, L3 and L4 vertebrae.  Conservative treatment was given.  He was later found to have suffered a small subdural haematoma, but this did not require surgery.  He was also diagnosed with blepharadenitis.  He remained in hospital until 4 February 2002 and on sick leave until 4 December 2002.  He did not return to his pre-accident work. In about November 2003, he took a course of training as a security guard and commenced employment as such with one Megastrength Security Services Co. Ltd on 30 December 2003 at a salary of $5,982.00 per month.

26. The plaintiff says that he is unable to return to his pre-accident occupation.  He currently suffers from numbness in the thigh, pain at the waist, dizziness, forgetfulness and bad temper.  He cannot lift heavy weights such as a bag of concrete and his recurrent dizziness would make it dangerous for him to work at height.

27. The plaintiff’s orthopaedic expert, Dr Wong See Hoi, says that he is unfit to return to heavy manual labour and recommends that he change to moderate work such as that of a security guard, messenger or car park attendant.  The neurologist, Dr Edmund Woo, says that from the head injury perspective the plaintiff could return to work as a construction site worker, and he is also suited to be a security guard.

28. The defendant’s orthopaedic expert, Dr Danny Tsoi, says that the plaintiff will have difficulty but is not absolutely precluded from resuming his pre-injury job and that jobs with a light demand are more suitable to him.  Those include security guard, car park attendant, messenger, office assistant, storekeeper, waiter, etc.

29. I have not dealt with the medical evidence at any length, because the figure for pain, suffering and loss of amenity is agreed by the parties at $330,000.00.  As to whether or not the plaintiff is able to return to work as a construction site worker, on his evidence and that of both orthopaedic experts I am satisfied that he is not.

Pre-trial loss of earnings

30. The experts agree that the sick leave period up to 4 December 2002, i.e. 11 months and there is no dispute that the plaintiff is entitled to the full loss of earnings for this period.  It is agreed that the plaintiff’s pre-accident earnings were $17,250.00 per month.  There is a dispute over the period from 4 December 2002 to 30 December 2003 during which the plaintiff was unemployed.  It is argued for the defendant that the plaintiff should have found work in this period and that he should be allowed no more than three months to find work.

31. The defendant says that he tried to find a re-training programme to fit him for work as a security guard but none was available until November 2003.  As soon as he was offered such work, he took it.  He did not register with the Labour Department because he could not do heavy work.  He looked for work as a waiter or warehouseman but was unable to take up such work because he would have had to lift weights or stand for long periods.  He applied for work as a clerk but to no avail because he cannot read English.  He says that he is not a lazy person, and is the breadwinner of his family.

32. It is not clear when the plaintiff first tried to find a re-training programme but I accept that he went into such a programme in November 2003.  Of course once he had decided on taking the course, his choice of interim work would be limited to something which he could do until the course started.  Having heard his evidence, I accept that he did try to find other work but could not find anything suitable.

33. It is argued for the defendants that the plaintiff should have been able to get work paying about $8,000.00 per month but I cannot see that there is any basis for this.  He was advised medically on the work suitable for him; he chose one of the occupations suggested.

34. Having regard to the above, I accept the calculations put forward by counsel for the plaintiff.  He should have the full loss of pre-accident earnings for the period from the accident up to 29 December 2003 and thereafter should be compensated up to the date of trial at the difference between pre-accident earnings and the present salary.  The final figure for pre-trial loss of earnings is $585,204.00.

Post-trial loss of earnings

35. The multiplicand is $17,250,00 — $5,982.00 i.e. $11,268.00 per month.  The multiplier is agreed by the parties at 7.  The figure is accordingly $11,268.00 x 12 x 7 = $946,512.00.

Loss of earning capacity

36. The plaintiff claims $71,784.00, equivalent to 12 months’ post-accident earnings.

37. In Moeliker v. Reyrolle & Co. Ltd [1997] 1 WLR 132, it was said that this head of damages should be considered in two stages.  First, the court must ask if there is a substantial or real risk that the plaintiff will lose his present job at some time before the estimated end of his working life.  If there is, the court must quantify the present value of the risk of financial damage which he will suffer, having regard to the degree of risk, the time when it may materialise, and the factors, favourable and unfavourable, which will or may affect his chances of getting a job at all, or an equally well-paid job.

38. The plaintiff says that there is “always a risk” of losing his job as a security guard but gives no real basis for that statement.  There is no real evidence to show how far his earning capacity would be affected by his disability if he were to lose his present job.  In fact it seems unlikely that there would be any real effect given the medical evidence that the transverse process fractures have healed well with good alignment.  If the plaintiff loses this job there is nothing to suggest that he would be at a disadvantage in finding an equivalent one.  I do not therefore see that an award for loss of earning capacity is appropriate here.

Loss of mandatory provident fund

39. This is 5% of the pre- and post-trial loss of earnings, i.e. $76,585.80.

Other special damages

40. Medical and travelling expenses and the cost of tonic food and a walking aid are agreed.

Calculation

41. The award is calculated as follows :

PSLA	$330,000.00
Pre-trial loss of earnings	$585,204.00
Post-trial loss of earnings	$946,512.00
Loss of MPF	$76,585.80
Tonic food	$5,000.00
Travelling expenses	$1,542.00
Medical expenses	$164.00
Walking aid	$50.00
Total	$1,945,057.80
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42. This falls to be reduced by 50% on account of the contributory negligence.  The final award is accordingly $972,528.90.  The defendant must also give credit for employee’s compensation of $235,980.00 so the final figure is $736,548.90.

43. There will accordingly be judgment in favour of the plaintiff against the 1^st and 2^nd defendants for $736,548.00.  Interest is ordered on the award for general damages at 2% per annum from the date of the Writ to the date of judgment and thereafter at the judgment rate.  Interest is ordered at half the judgment rate from the date of the accident until the date of payment of the employee’s compensation, i.e. 17 June 2003 on the total award in respect of the pre-trial loss of earnings and special damages, i.e. $295,980.00; and from that date to the date of judgment at that total figure minus the employee’s compensation figure of $235,980.00, i.e. $60,000.00; and thereafter at the judgment rate until payment.  Costs of the action be (nisi) to the plaintiff, to be taxed if not agreed.