LUNG YUI MAN v. YEE HING KEE PLUMBING WORKS CO LTD

HCPI 923/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 923 OF 1996

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J U D G M E N T

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The plaintiff was at all material times employed by the 1st defendant as a plumber on daily basis. The 1st defendant had project work at a number of sites in Lam Tin, Junk Bay, Sai Wan Ho and Tsuen Wan. The work at the Lam Tin site was in fact sub-contracted from the 2nd defendant.

2. According to Paragraph 3 of the Statement of Claim, on 6th September 1993, the plaintiff and one-co-worker Chu Lung Wong ("Chu") were assigned to fix a fresh water pipe ("the pipe") at the pump room in Hong Pak Court ("the site") in Lam Tin. At the material time, the floor of the pump room was immersed with 1 inch depth of water. The plaintiff and Chu had to work on a wooden plank of about 1.5 feet in width and about 10 feet long and placed about 2 feet above the floor. In the course of installing the pipe back to its proper position, the pipe was placed on the shoulder of the plaintiff at the front and Chu the back. During the installation, Chu lost balance and fell from the wooden plank causing the plaintiff to fall as well. As a result, the pipe hit on the plaintiff's back causing him to sustain injuries.

3. The joint defence is a rather awkward one. Paragraph 3 of the defence says that

"Save it is admitted that on the 6 September 1993, the plaintiff alone was assigned to repair a water pipe/tape (SIC) at a pump room situate at Hong Pak Court and that the plaintiff had reported that he accidentally sprained his back whilst doing the repairing work thereat, paragraph 3 of the Statement of Claim is denied." (Emphasis added).

On the face of the defence, there is admission that the plaintiff was working at the site the day on which he allegedly had his back injured. However, the defendants' real case is that there was no need for repair work at the site on that day, the plaintiff was not working on that day and Chu was working in another site on that day. On 21st September 1999, the defendants applied by summons for leave to amend the defence which would have the effect, inter alia, of withdrawing the admission made in paragraph 3 of the defence about the work of the plaintiff on 6th September 1993 and putting in issue all the circumstances of the alleged accident. Seagroatt J dismissed the summons. Thus the defence stood as it was.

4. At the onset of the trial, the defendants indicated that it would seek leave to introduce evidence to show that the plaintiff could not have had an accident on 6th September 1993 as he alleged. Mr Law for the plaintiff opposed. I told counsel on both sides that it is undesirable to have a trial on false premises. However, I should not go behind the decision of Seagroatt J who in effect tied the defendants to their admission in the pleadings. I indicated to counsel for the defendants that if they wish, I would be prepared to consider an application for appropriate amendment of the defence. Alternatively, the defendants may try to appeal out of time against the decision of Seagroatt J. But in either case the defendants may well have to bear costs thrown away as a result of adjournment of the trial. In the event, the defendants decided to proceed with the trial on the basis of the original pleadings. As can be expected, the trial became a battle on credibility even though the defendants were bound by their admission that the plaintiff was working alone on 6th September 1993, the day of the alleged accident.

Liability

5. In a nutshell, the defendants contended that the plaintiff could not have had an accident on 6th September 1993 in the manner as he alleged. Two aspects of the plaintiff's case about the accident were hotly contested.

(a) The presence or absence of Chu

6. It is indisputable fact that the pipe in question weighed about 235 pounds. It is impossible for one man like the plaintiff to handle an object weighing more than his only body weight. So if, contrary to the evidence of the plaintiff, Chu could not be working with the plaintiff, there was no way the plaintiff could be handling the pipe and the accident could not have happened.

7. The evidence relied upon by the defendants consist of one work sheet for the first half of the month of September 1993 (Bundle 5 page 39) and a series of half-monthly wages records of the 1st defendant from 1st January 1993 to 31st December 1993 (Bundle 5 pp 5-36, 41-48 and 51-60 including certified translation thereof) and a number of receipts signed by the plaintiff (Bundle 5 pp 61-78 including certified translation thereof).

8. The first half of September 1993 work sheet is all in manuscript. It purports to show the days and where three workers of the 1st defendant worked. One of the workers was the plaintiff. The second worker is Chu. The third worker is someone called "Fuk". According to this work sheet, Fuk worked on 13 days and all the time at a site in Sai Wan Ho. Chu worked for 10 1/2 days of which 5 days were in Junk Bay and 5 1/2 days in Sai Wan Ho; specifically on 6th September 1993, according to this work sheet, Chu was in Junk Bay rather than in Hong Pak Court in Lam Tin. As to the plaintiff, the work sheet shows that he worked on 2nd, 3rd and 4th of September, i.e. 3 days only. Of the three days, he was in Yuen Yuen Monastery in Tsuen Wan on 2nd September 1993 but in Hong Pak Court in Lam Tin on 3rd and 4th September 1993. For all the other days during that first half of September 1993, including 6th September 1993, the plaintiff was stated to be "off". Now, since the defendants are bound by their pleadings to admit that the plaintiff was working on 6th September 1993, I have to ignore the entries in this work sheet relating to the plaintiff. The defendants, however, relied on the entries relating to Chu which show that Chu was not working at the site with the plaintiff on the day of the accident. If I accept the entries relating to Chu as reflecting the truth, even disregarding the recorded absence of the plaintiff, the plaintiff's case must fail.

9. The testimony relating to the work sheet is this. During cross-examination, the plaintiff at first agreed that the whole document was in his own handwriting. Later, he corrected himself by saying that he did not fill out the whole work sheet. He only initialled the entries for his only work on 2nd, 3rd and 4th September 1993. Mr Law for the plaintiff pointed out that in correspondence between solicitors those acting for the plaintiff had denied that this work sheet was in the handwriting of the plaintiff. Thus there was no reason for the plaintiff to admit under cross-examination that he filled out the document. The fact that he did so under cross-examination, Mr Law suggested, was due to a slip of the tongue or misunderstanding of the question from Mr Luk, counsel for the 1st defendant. However, it is not disputed that the plaintiff did initial on the work sheet three times and Mr Law quite fairly conceded that he cannot dispute the authenticity of the document. His reservation is about the accuracy of the document.

10. If the plaintiff himself filled out the work sheet, he cannot deny the accuracy of the record that Chu was not working with him on 6th September 1993. The plaintiff's own testimony during the trial ruled out the possibility of Chu having been transferred from another work place to Hong Pak Court during the course of the day of 6th September 1993. So, if the record is accurate, all his evidence about having an accident whilst working with Chu must be false. There is no expert evidence on handwriting. Given the duty to determine whether the plaintiff filled out the work sheet, I can only compare the handwriting apparent in the work sheet with that of the signatures and a few extra characters written by the plaintiff in a number of receipts (Bundle 5 pp 61-78). It does appear to me that there is a uniform distinctive style of beautiful calligraphy on the whole work sheet that is the same as the other undisputed handwriting of the plaintiff in the receipts. Thus, I believe the plaintiff did fill out the whole of the work sheet.

11. Mr Law for the plaintiff urged me not to reject the plaintiff's case on handwriting when there are, to use his term, only "flimsy" materials for comparison of handwriting. I am grateful for the counsel of caution.

12. There is another reason for believing that the plaintiff filled out the work sheet. The defendants alleged that the plaintiff was a de facto foreman. The plaintiff denied that he was the foreman. It is true that he was paid at the same rate as other workers. It is also true that he did not have the title of foreman. But that is why he is regarded as a de facto foreman. From his own evidence, the plaintiff admitted that he was treated more equal than the other workers paid at the same rate. He said in evidence that he recruited the two workers posted to Yuen Yuen Monastery in Tsuen Wan and he had to go to that monastery to oversee the work there. He was also given sub-contract work at the airport, by the 1st defendant. There can be little doubt that the plaintiff was given more responsibility than the other workers and was rewarded indirectly for his extra responsibility. It is, thus, more likely that he was the person who filled out the work sheet.

13. Moreover, the crucial issue is whether Chu was working at Hong Pak Court in Lam Tin on 6th September 1993. In other words, the plaintiff has to prove on the balance of probabilities that Chu was working in Hong Pak Court in Lam Tin on the day in question. Towards this end, there is only the oral evidence of the plaintiff. None of the parties can produce Chu for he cannot be located. On the other hand, there is evidence of a series of wages records for the months of January to August 1993 inclusive (Bundle 5 pp 5-36) which show that the number of workers assigned to Hong Pak Court in Lam Tin had dropped from the highest of 14 in February 1993 to just one (the plaintiff alone) in the second half of June 1993. Since the second half of June 1993, the plaintiff had been the only worker assigned to Hong Pak Court in Lam Tin. Although the plaintiff's side did not agree the wages records, the receipts signed by the plaintiff for his wages covering the period are agreed evidence. The wages signed for do tally with those wages records. And witnesses from the 1st defendant testified that they personally certified the wages records. It would be perverse to reject these historical wages records by simply saying that they may not be accurate.

14. The reason for the reduction of workers for Hong Pak Court in Lam Tin since June 1993 is simple and cannot be disputed. The work for Hong Pak Court in Lam Tin had completed in March 1993. Thereafter it was the maintenance period. The 1st defendant's responsibility during the maintenance period was to rectify defects. By late June 1993, obviously, there were not so many defects (if any) for the 1st defendant to incur the costs of posting more than one worker to Hong Pak Court in Lam Tin. It is thus more than likely that the plaintiff was the only plumber assigned to Hong Pak Court in Lam Tin.

15. Further taking into account doubts over the general credibility of the plaintiff explained below, bearing in mind the burden of proof on the plaintiff, I am not satisfied on the balance of probabilities that Chu was working in Hong Pak Court in Lam Tin on 6th September 1993. It follows that the plaintiff's story about an accident whilst working with Chu on the day in question is wholly incredible.

(b) The circumstances of the accident

16. The site of the accident is a pump room on the ground floor of a block of flats. It is in fact one big room divided into four chambers: the anterior chamber, the posterior chamber and side chambers on the left and right of the anterior chamber. The chambers are created by partition walls. There are no doors between the chambers, just openings in the partition walls. Upon entering the anterior chamber through the main and only door of the pump room, there is a partition wall on the right which extends from the street side boundary wall towards the partition wall of the posterior chamber. This wall stops short a few feet from the partition wall of the posterior chamber because there are two large salt water pipes painted in blue ("the blue pipes"), slightly raised from the floor level, that run parallel to the partition wall of the posterior chamber and through the space where the right chamber partition wall could have been. There are smaller pipes that hang overhead above the blue pipes.

17. Along the partition wall for the right chamber, on the side of the anterior chamber, there is the pipe (a six inches cast iron fresh water pipe). This fresh water pipe has a valve with one end connected to the outside mains. The other end of the fresh water pipe after the valve, called the lower end, turns ninety degrees up along the partition wall and then another ninety degrees turn left towards the edge of the partition wall. At the edge of the partition wall, by a number of connected elbow elements, the pipe turns round to the other side of the partition wall and, after a short length along the other side of the partition wall, it turns left to be perpendicular to the partition wall to mate with a joint on the opposite side that is on the outer boundary wall of the right chamber. That last mentioned joint is called the upper joint.

18. Altogether, the pipe from the lower joint to the upper joint consists of six components, one straight and five elbow fittings, weighing in total some 106.5 kilograms (235 pounds). According to the plaintiff, it was the joint between the first and second elbow fittings that burst resulting in gushing out of fresh water. In order to repair, the lower joint and the upper joint had to be disconnected so that the pipe between these two joints could be taken out of the pump room for the fittings to be taken apart and re-assembled to water-tight condition. The re-assembled pipe was then taken back inside the pump room and re-connected to the joints.

19. Since some of the evidence of the plaintiff were obviously difficult to accept, I ordered (with the support of all counsel) a site visit so that the plaintiff may refresh his memory and demonstrate how the accident happened. After demonstration during the site visit and further evidence given by the plaintiff thereafter, the circumstances of the accident became more murky. Counsel for the defendants in their joint closing submissions listed a catalogue of over 20 inconsistencies in the plaintiff's case. Counsel for the plaintiff quite fairly acknowledged that there are inconsistencies requiring explanation and if these explanations are not accepted the plaintiff's case should fail.

20. According to the Statement of Claim, as a result of the pipe bursting, the site was flooded by one inch deep water. I am not sure what is the point of introducing such fact. Perhaps it is to lead the court to believe that there was bursting of the pipe requiring repair. During cross-examination by Mr Luk, counsel for the 1st defendant, before the site visit it was pointed out to the plaintiff that the floor level of the site was actually higher than the ground outside the pump room. The point was that it was impossible for water, even if the pipe burst, to have accumulated to a depth of one inch. Without actually removing the point of doubt, the plaintiff insisted that the floor of the pump room was only 3" above the level of the ground outside. After the site visit, he acknowledged that the actual measurement was 6" but denied that the difference had been so great at the time of the alleged accident. Eventually when pressed by counsel, he claimed that the floor of the pump room at the material time was "almost level with the ground outside". Mr Kwan, a director of the 1st defendant at all material times and must know the design and actual conditions of the site as well as the plaintiff, gave evidence that the pump room had a floor drain as a matter of statutory requirement. This witness also stated that the floor level was the same all the time. There was no question of the floor level having been raised higher by a further three inches to six inches after the accident. Granted that the pump room floor may be uneven, even that was designed to make water flow towards the floor drain, it is very difficult to believe the site was flooded to one inch deep. This allegation of flooding, in my judgment, is a counter-productive embellishment by the plaintiff.

21. In his evidence in chief, the plaintiff gave the impression that he was paged by Mr Kwan in the afternoon on 6th September 1993 about a burst water pipe requiring urgent repair. It was only during cross-examination by Mr Bedford, counsel for the 2nd defendant, that the plaintiff claimed that he was paged by Kwan at 11 am. During subsequent cross-examination, upon receiving the page and instructions from Mr Kwan, the plaintiff said in evidence that he went to turn off the fresh water mains switch in the street to stop the gushing of water inside the pump room and then went to lunch. He did not start repair work until some time about 2 p.m. and he injured his back about 2 hours later. As counsel for the defendants pointed out, this leisurely approach to repair work contrasted with the apparent urgency of the work which the plaintiff tried to impress the court when giving evidence in chief. Mr Kwan who gave evidence flatly denied that he paged or instructed the plaintiff to do repair work at the site on the day in question. Even if one is bound to ignore this part of Mr Kwan's evidence because the defendants have admitted by pleadings that the plaintiff was assigned to do repair work on that day, there is serious doubt that water said by the plaintiff to be one inch deep on the floor had not dissipated after more than two hours over lunch which is the period between the time he turned off the street water mains and the time he began repair work.

22. The plaintiff in his written witness statement stated that Mr Kwan told Chu to get tools from a store room to repair the burst pipe. In his oral testimony, the plaintiff said that he and Chu together went to the store room because they needed many things. Mr Kwan, of course, denied that he gave instructions to Chu. Even ignoring the evidence of Mr Kwan, the plaintiff contradicted himself. He did not even enumerate the "many things" required for the job. As far as I know from my own experience of household maintenance changing water pipes and taps and from trying another case involving fixing large diameter fire fighting water duct, the plaintiff needed only a spanner to undo the nuts and bolts at the upper and lower joints, a pair of chain pliers to turn loose and tighten the fittings making up the pipe, some hemp strands and oil based paste for sealing the couplings. Even assuming two sets of hand tools, there were not a lot of things requiring two persons to fetch.

23. The Statement of Claim alleges that the plaintiff and Chu "had to work on a wooden plank of about 1.5 feet in width and about 10 feet long and about 2 feet above the floor". During evidence in chief, the plaintiff introduced for the first time that he had at the time of the accident also used various lengths of wood each measuring 2' - 3' wide. In cross-examination by Mr Luk, he further elaborated that these lengths of wood were three in number, approximately 6 feet in length and about 1" thick. The relative positions of the one long and three smaller planks were drawn by the plaintiff on photographs in Exhibit P1 before the site visit. When asked to demonstrate during the site visit how the planks were positioned, the plaintiff indicated that the long plank provided for demonstration (10' x 1'6" x 3/8") was approximately 3" too wide. When asked at the site to place the long plank in the alleged material position at the time of the accident the plaintiff placed it in a way quite different [see new Photo 03 at 3:074.1] from what he had indicated during oral testimony by drawing on photograph 7 of Exhibit P1. The plaintiff also placed the three short planks in different positions [see new Photo 9 at 3:074.3] to those he had indicated in court on the photograph. It should be pointed out that the plaintiff was given complete free hand to place the wood in whatever position he wanted. When he said the long plank was too wide to fit into a particular space, the plank was twisted to allow it to fit into the space indicated by the plaintiff.

24. Accepting for the moment that the plaintiff may have difficulty in accurately drawing on two dimensional photographs the position of the planks in a three dimensional real environment, the very idea that the plaintiff and Chu had to use the long plank in the manner described is mind boggling. The long plank was placed on top of the blue pipes as a kind of cat walk. It was placed in a kind of slanting position extending sideways from the end of the blue pipes inside the right chamber to rest on a horizontal beam of a metal frame around a big chunk of machinery in the anterior chamber. In such position, this long plank serves no useful function at all. The pipe could not be carried from the point where the big chunk of machinery is situated; the pipe had to be taken around that chunk of machinery to reach the blue pipes, then over the blue pipes to the edge of the partition wall and then up to mate with the upper and lower joints. For the short distance over the blue pipes which are about 2 feet above ground level, the long plank covers the gap between the blue pipes. But the so-called long plank of 3/8 inch thickness is just a flimsy wood board. Every one at the site visit who had occasion to walk on this long plank (without need to carry any load) had to walk gingerly for fear of sinking one's foot through the long plank. Given the job of moving the pipe weighing 235 pounds over the blue pipes, it is difficult to image a person could carry one end of the pipe on his shoulder, climb onto the blue pipes so that that end of the pipe becomes more than 7 feet above the ground whilst immediately behind there is another person also using his shoulder to hold up an elbow segment of the pipe which is geometrically level with the end being raised by the first person to 7 feet above ground level. It is the most awkward if not impossible way of moving the pipe. The simplest, natural and safe way to go about it is to place the pipe on the blue pipes once it is carried to the blue pipes and shift or slide the pipe along the blue pipes. In this way, not only manual energy for lighting the pipe up 7 feet is saved, the blue pipes do not have to support the weight of two persons and the pipe and the risks of any person helping to carry the pipe losing his foothold or balance whilst walking on the blue pipes are greatly reduced.

25. The plaintiff put three shorter but thicker pieces of wood on top of the long plank. Quite apart from the problem that these three pieces were placed differently by site demonstration from the positions marked on photograph before the site visit, there is no apparent purpose for using these three pieces. They are thicker and thus better for foothold but only if one stands on them at any point in between the blue pipes. If that is the purpose, the long plank is redundant.

26. The plaintiff in evidence in chief said that at the very moment just before the accident Chu was standing on the long plank. At the site demonstration, the plaintiff showed the position of Chu having his left foot on the long plank, right foot bent (thus not possible to give support) resting on a metal frame, the right arm wrapped around the pipe on his right shoulder and the left arm resting on his left trousers pocket. The evidence and demonstration by the plaintiff about the position and posture of Chu the moment just before the accident is inherently unbelievable because at that moment he the plaintiff himself was actually behind the wall and had his back towards Chu and he the plaintiff must have got round the wall quite a few moments before the accident occurred. When challenged about his imagination, the plaintiff said he just knew.

27. The plaintiff's own position at the moment the accident occurred changed several times during the course of the trial. In chief, he said he was standing on the long plank with his shoulder holding the upper end of the pipe which was in position to mate with the upper joint. In fact, the upper joint to mate with the pipe is, horizontally, at least 6 feet from anywhere from the long plank. There is no way he could be in such position. During the site demonstration, as a subtle reminder, I directed that a piece of string be tied to the upper end of the pipe where the plaintiff had marked on photograph before the site visit as the actual position of his right shoulder at the moment of the accident. Despite this, the plaintiff demonstrated at site that at the time of the accident he was standing not on the long plank, but on the nearer blue pipe and at that location his right shoulder could touch a part of the pipe which is at least two feet from the position he has already marked on photograph which position I had caused to remind him by the string. See new photos 33 and 34, Bundle 3, page 74-11. Quite apart from the glaring discrepancies, the demonstrated position means even by stretching his hand to the utmost he could not be able to fix the nuts and bolts of the joint which he said he was just about to do at the time of the accident.

28. After the site visit, when questioned by counsel for the defence, the plaintiff changed his evidence and said that at the moment of the accident he was in fact standing on a plank, another one hitherto not mentioned, which was placed with one end on the blue pipes and the other end on a rung of a short wooden ladder (also hitherto not mentioned). According to this third version, the plaintiff would be in the appropriate position. The question is, why should the court believe this third version? Mr Law for the plaintiff explained, I note that this is not evidence from the plaintiff himself, that during the site visit there was no more wood plank for him to show how he made use of a plank and a short wooden ladder to get to the appropriate position. And, counsel said, probably the plaintiff was too timid to ask for opportunity to give proper demonstration. Really, I have to reject the explanations. There are two points here. First, the plaintiff had had plenty of opportunities to tell the court before the site visit that he used a ladder and an additional plank. He never mentioned them in the Statement of Claim, his witness statements or his oral testimony before the site visit. Yet he was very specific about what wood planks he used, giving precise measurements of the pieces (which happened not to fit the physical environment) and the number of pieces used. Secondly, if he felt unable to show the true position, he should not have proceeded to show a position he knew was false!

29. About the ladder, it is very difficult to accept that the plaintiff forgot about it. It is a special piece of equipment he used. According to his evidence after the site visit, the ladder was there at all times in 1993. In his subsequent evidence, he said that in fact he stood on the very ladder itself when he was dismantling the pipe for repair. Even accepting that he forgot this piece of useful equipment at some stage after the accident, photographs taken in 1997 in the presence of the plaintiff show that the ladder was right next to the spot where he said he used it. Then during the site visit, one sees the ladder again at that location. He had been reminded of the ladder twice. I cannot help thinking that the plaintiff realized during or after the site visit and demonstration that he had placed himself in an incredible position and so, in order to relocate himself into the appropriate position, he requisitioned ex post facto the ladder which he noticed from the photographs and the site visit.

30. The Statement of Claim at paragraph 3 states that the "water pipe consisted of 2 sections, a straight pipe and an elbow fitting, weighing about 100 catties, measuring about 8 feet in length and 6 inches in diameter". The site visit and the exhibited photographs revealed that the water pipe consisted of 6 sections: 5 elbows (each weighing 17 kg), one short straight section (weighing 6 kg), and 2 French joints (weighing a total of 15.5 kg). The total weight of the pipe was therefore 106.5 kg (approx. 234.3 lbs. or 176 catties). The plaintiff explained during cross-examination by Mr Bedford for the 2nd defendant that he told his solicitors that the pipe consisted of 2 sections, one elbow and one straight piece, because he was unsure of the exact number of elbows. This is difficult to believe. The plaintiff is a plumber. He would be the first person to have noticed how many elbow fittings making up the pipe especially if he had had to dismantle them and put them back.

(c) The general credibility of the plaintiff

31. The plaintiff insisted throughout his evidence that no one was living at Hong Pak Court in Lam Tin at the time of the accident. Mr Kwan for the 1st defendant, however, said that residents had moved in from the beginning of April 1993, five months before the time of the accident. Starting from April, the 1st defendant and the plaintiff as its employee was at Hong Pak Court for maintenance only. There is also clear documentary evidence from architects and so on that Hong Pak Court was ready for occupation by the end of March 1993. Bearing in mind that Hong Pak Court is a Housing Authority development, one must believe that it would not be left vacant for so many months to September 1993. The plaintiff himself let slip of his tongue when questioned by the defence on how he got instructions from Mr Kwan. At first he said, after getting the page call, he used the telephone of the residents upstairs to speak to Mr Kwan. Later, he changed his evidence to say he borrowed a portable phone from a decoration worker because there were no residents.

32. During examination in chief, the plaintiff asserted that his claim for acupuncture treatment in Mainland China included the cost of travelling to and from the acupuncture sessions. Shortly afterwards, the plaintiff contradicted himself by saying that his claim for travelling expenses ($1,000.00) included the cost of travelling to and from his acupuncture sessions.

33. Furthermore, as a matter of general credibility, even the plaintiff's own medical expert, Dr Chiang, confirmed the suspicious (based on a number of reasons) of the medical expert for the defendants that the plaintiff magnified his symptoms. When doctors on both sides agree, one cannot discount their observations as mere suspicions. Thus there is expert evidence against the plaintiff not just on his medical condition, but also on his integrity.

34. There are other instances one can cite as casting doubt on the credibility of the plaintiff. Mr Law for the plaintiff, doing the best he could, tried to explain away all the inconsistencies by conceding that the plaintiff was incapable of giving evidence on exact details. Counsel urged the court to give allowance to the plaintiff for his presumed relative lower education and timidity in court. I should not make any assumption on the plaintiff's level of education. I do, however, observe that the plaintiff was quite capable of reacting to adverse circumstances. As counsel for the defendants pointed out, the plaintiff changed his evidence time and time again in attempts to improvise a more credible case for claim. Of course a trial is not a test of memory, but there are so many inconsistencies. The evidence of the plaintiff on what he did, how he did it and with what he did it simply defy common sense and circumstances. I am driven to the irresistable conclusion that the evidence of the plaintiff cannot be based on actual experience.

Estoppel or Inference

35. Mr Law for the plaintiff asserted that by filing the statutory Form II to report an industrial accident wherein it is stated that the plaintiff sprained his back on the 6th September 1993, the 1st defendant cannot deny that the plaintiff suffered injury during the course of employment under the 1st defendant on the day in question. With respect, neither the filing of the form nor the payment of compensation under the Employees Compensation Ordinance, Cap. 282 can operate as estoppel or admission against the 1st defendant. See Ho Mui v Gammon (Hong Kong) Limited and another [1975] HKLR 195 and Li Kwai Fong Ah Pat v Bachy Soletanche Group and another, Civil Appeal No 3 of 1989.

36. As to admissions in the pleadings, all that the defendants have admitted in their joint defence is that the plaintiff worked at the site on 6 September 1993 and that he reported injury by accident. There is no admission of actual accident or injury on the day in question. It is true that the plaintiff had a medical condition in the lower back in September 1993 when he was seen by doctors. But, according to Dr Chiang who gave evidence for the plaintiff, the medical condition may be caused by acute trauma or chronic development. The plaintiff said he went alone by taxi to Kwong Wah Hospital Casualty Department for treatment on 6th September 1993 after work. Not only is there no record of such attendance, there is in fact documentary evidence from a Dr Abeysuriya of Kwong Wah Hospital suggesting that the plaintiff first went there in late August 1993. I cannot determine how the medical condition in 1993 could have arisen otherwise than as alleged by the plaintiff. It could be the result of an earlier accident at home, at play or at work. It could also be due to years of labour. In any case, I cannot on the meagre materials before me, having rejected the plaintiff's evidence, put a temporal connection between the medical condition and his work (by admission) on 6th September 1993. Even if one finds that injury was suffered on 6th September 1993, one is in complete darkness as to how the injury was caused. For arguments' sake, the plaintiff might have finished the repair work and was having an afternoon nap lying on a make shift bed in the pump room and fell off the bed!

37. For the purposes of this case, all I find is that the plaintiff has not discharged his burden of proof that he had been injured during the course of employment under the 1st defendant in the manner as be described. On such finding, the plaintiff's claim must fail.

Contributory Negligence

38. In case I am corrected on findings of fact and the plaintiff's evidence as to how the accident occurred is held to be credible, there is no serious dispute that the 1st and 2nd defendants would be jointly and severally liable for breach of common law duty of care, breach of common duty of care as occupier and breach of statutory duty under the Construction Sites (Safety) Regulations, Cap. 59. Mr Bedford for the 2nd defendant did argue that the Construction Site (Safety) Regulations, Cap. 59 do not apply to the site because it was no longer under construction. With respect, repair work is defined as construction work and so the site must be treated as construction site. One is then obliged to consider contributory negligence pleaded in defence or in mitigation.

39. I have already mentioned earlier that the plaintiff, assuming his version is believed, went about carrying the pipe on his shoulder and walking on the blue pipes was doing it in the most awkward if not impossible way. He and Chu could have shifted or slid the pipe on the blue pipes. However, the accident allegedly did not take place at this phase of the work. The accident happened when the plaintiff and Chu held the pipe up to mate with the joints for fastening. At that stage, according the plaintiff's third version, he was no longer standing on the blue pipes.

40. There is evidence from the plaintiff himself that he and Chu could have used another method to haul up the pipe to the height and position to mate with the upper joint. According to him, after he injured his back and rested for 40 to 45 minutes, he told Chu to carry on with the work whilst he would give the little help he could manage. Chu, allegedly, found a thick wooden plank about 4 feet long and placed it on top of the boundary wall of the right chamber and on top of a metal frame in the anterior room. The plank then became an overhead beam. From this beam, Chu allegedly hung a rope one end of which is tied to the pipe and the other end is pulled by hand by Chu. In this way, the pipe was hoisted up to position and the plaintiff, injured he was, fastened the nuts and bolts to the upper joint.

41. Counsel for the defendants suggested that this part of the plaintiff's evidence is also incredible because the distance between the boundary wall and the metal frame on which the overhead beam was supposed to have rested measured at the site visit was about 9 feet. The plaintiff and Chu could not have used a 4 feet long wooden plank for such overhead beam. The estimate of the length of the plank is so vastly unrealistic that he must have made up this part so that the job was done and no one can dispute there was no repair. The other problem is that the top of the boundary wall is considerably higher, so the overhead beam could not be horizontal. The slant is quite considerable and it is quite doubtful whether the rope round the beam could stay in one position as it was pulled to hoist the pipe. It is quite likely that the rope would have slid down the overhead beam towards the metal frame thereby shifting the pipe out of place. Furthermore, since no pulley mechanism was used, Chu could not hoist 230 pounds by simply pulling with his bare hands.

42. Anyway, assuming that the plaintiff is believed about how Chu used an overhead beam to hoist the pipe safely, one must find that the plaintiff and Chu should have used this method in the first place thereby avoiding the accident. The plaintiff was an experienced plumber and the idea of using the overhead beam was demonstrably within his and Chu's intelligence without prompting or instruction from any supervisor. He has himself largely to blame for not using a safer method he could master. For this reason, I would assign at least 75% contributory negligence to the plaintiff and so damages to be assessed must be reduced accordingly.

Quantum

43. At the request of counsel for both sides, assuming liability is imposed on the defendants, I assess damages under the following separate headings.

PSLA

44. The plaintiff suffered no external injury. No surgery was required. There was never any hospitalization. It is true that the plaintiff was granted sick leave from time to time but this was on ground of alleged pain. According to the report of Dr Au, the defendants' expert, the plaintiff exaggerated his complaint of pain. The complaint was contradicted by both the plaintiff's prompt and swift movements and his inappropriate responses to tests that should have evoked no pain reaction. Dr Chiang, the plaintiff's own expert, agreed that the plaintiff magnified his symptoms. In the premises, the plaintiff's injury cannot be placed in the "serious" category. Counsel for the plaintiff suggested awarding 70% of the lower end amount for serious injury, i.e. $480,000.00 x 70% = $336,000.00. Counsel for the defendants suggested at most $100,000.00 having regard to Chan Kwai Ngor v Leung Fat Hang [1992] 1 HKC 408.

45. I accept that Chan Kwai Ngor is a good reference but not in terms of absolute figure. At the time Chan Kwai Ngor was decided, the lower end figure for serious injury was $200,000.00 and $80,000.00 was awarded to a plaintiff who suffered comparable back injuries but made a good recovery. The plaintiff in that case, like the plaintiff here, exaggerated her symptoms. $80,000.00 is 40% of $200,000.00. Even though Mr Law for the plaintiff says that courts in recent years have not known to have awarded less than 50% of the lower end of the serious injury, I think it is just to allow only 40% in this case if appropriate. Hence the award under this head should be $480,000.00 x 40% = $192,000.00.

Pre-trial Loss of Earnings

46. The defendants deny pre-trial loss. In the light of clear evidence of exaggeration of symptoms and inflated claim for special damages, the defendants' position is not surprising. However, it is undisputed fact the plaintiff was given sick leave for nearly 25 months for which period he had only two-thirds of his normal earnings.

47. The plaintiff's reported earnings during the pre-trial period are:-

a.	a short period of about 2 months working as a watchman earning $3,000.00 a month i.e. $6,000.00;
b.	a number of daily wages from D1 (September - December 1993) $7,850.00 [2-66];
c.	in end 93 and early 94, as a sub-contractor earning about 20% as "commission": $37,313.00 [2-66] x 20% = $7,462.60 or $7,500.00;
d.	for the year 1997, doing light duty casual work in construction site $26,000.00;
e.	for the year 1998, light duty work $7,000.00;
f.	April to May 1999, as casual worker in construction site at $450 per day, say $13,500.00;
g.	December 1999 onwards, as plumber in Sha Tin residential flats handling PVC pipes at $400.00 per day $9,200.00 per month. Total: $18,400.00;
h.	total: (a) + (b) + (c) = $21,350.00.

But, again, the plaintiff may very well have under-reported his earnings or failed to mitigate his loss. There is further clear evidence that the plaintiff made earnings as a sub-contractor whilst receiving employee compensation allowance for sick leave.

48. All parties seem to be content that the plaintiff worked about 23 days per month at $500.00 to $550.00 per day before the accident. Documentary evidence shows that he actually earned $11,150.00 per month then. By the time of trial, it is common ground that the wages of a plumber like the plaintiff should be $770.00 per day. Thus the pre-trial median earnings per month should be:-

($11,152.00 + $770.00 x 23) /2 = $14,431.00

49. Dr Chiang, expert for the plaintiff, assessed permanent loss of earning capacity at 25%. As a matter of common sense, the loss of earning capacity during the pre-trial can be higher. But experts for the plaintiff tend to be generous. I think I cannot be far wrong by treating the plaintiff's loss of earning capacity as 25% throughout.

50. Taking all factors and circumstances into consideration, I would reject the plaintiff's alleged loss of earnings before trial. I believe the plaintiff would be justly compensated, if he succeeds on 100% liability, for pre-trial loss of earnings being one-third reduced income during sick leave period and one-quarter of notional median income for the remainder pre-trial period. The actual figures are:

$14,431.00/3 x 25	= $120,250.00
+ $14,431.00/4 x 51.50	= $234,455.00
sub-total	$354,705.00

Post-trial Loss of Earnings

51. For the same reasons aforesaid, the defendants contend that the plaintiff is not entitled to any future loss of earnings.

52. The plaintiff said in evidence that he currently works as a residential plumber making $400.00 a day and, apparently, he is fully occupied. But there is no real documentary proof that his present earnings are as low as $400.00 per day. In any event, even if the plaintiff cannot find work, I think it is more due to the present sorry state of the economy in general rather than the plaintiff's condition.

53. I would approach loss of future earnings in this case on the basis of assessed loss of earning capacity which I take as 25%. For multiplier, the plaintiff is now aged 52. Counsel for the plaintiff suggested a factor of 6 whereas counsel for the defendants said 4. I would use a middle figure of 5. Thus I calculate post-trial loss of earnings as

$17,710.00 4 x 12 x 5 = $265,650.00

Loss of Earning Capacity

54. Counsel for the plaintiff suggested a sum under this head equivalent to 5 months of present earnings. Counsel for the defendant said nothing should be awarded. There is no hard and fast rule that a sum must be awarded under this head. I think I am already being generous by using loss of earning capacity at 25% assessed by the expert for the plaintiff to calculate the plaintiff's loss of earnings before and after trial. In the special circumstances of this case, I make no award for loss of earning capacity.

Special Damages

55. The plaintiff claimed $1,000.00 for travelling expenses, $10,000.00 for bone-setter's fees and $5,000.00 for tonic food. No receipt has been produced. The defendants said the plaintiff's claim for special damages is suspect and refused to agree any sum.

56. I accept the plaintiff must have incurred some expenses that qualify as special damages even though the sum may not be as much as claimed. Relying on intuition, I would award a round sum of $10,000.00 only.

Interest

57. This is hardly controversial. I simply adopt the defendants' case that interest on PSLA should be 2% from 30th August 1996 to the date of judgment and half judgment rate for pre-trial loss of earnings and special damages from date of accident to date of judgment.

Discounts

58. The aggregate of damages, if to be awarded, should be discounted by 75% for contributory negligence and then credit should be given for $198,999.71 agreed and paid as employees compensation.

Order

59. Since the plaintiff has not come up to proof on liability, the action is dismissed with costs to the defendants to be taxed if not agreed. The plaintiff's own costs is to be taxed in accordance with Legal Aid Regulations.