HO NI FUK v. YIP WING KIN AND ANOTHER

HCPI 166/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 166 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. The plaintiff was a construction worker who on 12 August 1998 was working at the rooftop of a residential property at 60 Seabee Lane in Discovery Bay. In the course of dismantling a structure on the roof, he fell and injured his neck and both wrists. He now brings proceedings for personal injury damages.

2. There was no dispute that the plaintiff was employed by the 1st defendant on a daily wage of $450 to undertake construction work on the site. The 1st defendant has taken no part in the proceedings and judgment has been entered against him for liability, leaving only the issue of damages, as far as he is concerned, to be assessed.

3. The real issue in the trial arises as to the liability of the 2nd defendant. His involvement in the matter arose in the following way. He is a friend of a Mr Norman Mak who apparently owns a company called Net World Development Limited, the registered proprietor of the property at 60 Seabee Lane. The 2nd defendant operates a sole ownership business called Chi Hung Engineering Company which is engaged in the construction industry. He was approached by his friend, Mr Mak, and asked to assist in finding workers to undertake demolition and decoration works at the property. The 2nd defendant was acquainted with the 1st defendant and the 1st defendant was engaged to do the work. In the course of the work, the plaintiff was injured.

4. It is the case for the plaintiff that the 2nd defendant was the principal contractor on the job and that the 1st defendant was his subcontractor. The case for the 2nd defendant is that he was not the principal contractor but merely a friend of the owner who assisted in advising on the work in return for some travelling expenses. In essence, he says that he is in the same position as a consultant engineer retained by an owner or developer to advise on technical matters and to facilitate the undertaking of the work.

5. He has throughout represented himself and consequently the matter has not been pleaded with the precision that one would hope from qualified solicitors. Thus, on the pleadings an issue was raised as to whether the premises constituted a construction site. However, that matter was not pursued in any way by the 2nd defendant and, in any event, it is absolutely clear that the premises did at the time constitute a construction site as that expression is used in the Factories and Industrial Undertakings Ordinance and its subsidiary legislation.

6. In order to determine whether the 2nd defendant was the principal contractor or merely a consultant advisor, it is necessary to look at the facts. In the course of these proceedings and employees' compensation proceedings, he has made two witness statements and has also filed an answer to the employees' compensation claim.

7. The first witness statement was given to solicitors whom I understand were acting for the Employees' Compensation Fund Scheme Board on 10 May 2000. In that statement the 2nd defendant said that Mr Mak told him that he had demolition work and decoration work to be done. The statement says that the 2nd defendant "promised to do it for Mr Mak. I got Mr Yip to finish the work." In the statement, the 2nd defendant says that no agreement on charges was reached with Mr Mak but that he knew that Mr Yip would charge $450 per man day. The 2nd defendant says that he asked Mr Yip to finish the work in one week, knowing that the charge would be based on the number of man days undertaken.

8. Mr Mak had given the keys of the property to the 2nd defendant but it is not clear whether Mr Mak went with them to the property. In the course of the work, the 2nd defendant went to the property, he says in the statement, every two to three days to inspect the work.

9. On the completion of the work, the statement records that Mr Yip asked the 2nd defendant for payment and that the 2nd defendant liased with Mr Mak to arrange payment. He does not now recall whether the payment was by cash or cheque and, if a cheque, to whom the cheque was payable. In the statement, the 2nd defendant says he was paid a fee of some $2,000 based upon 15 per cent of the cost of the work, that being, he says, on the basis that that was the sum usually paid by Mr Mak.

10. The 2nd defendant confirmed in evidence that the statement was true but said that it was given as a result of the solicitor asking questions and his responses to those questions and so it did not set out the whole of the events but only the answers to the questions posed. In his answer in the employees' compensation proceedings filed on 25 October 2000, he said he was "purely asked to find some workers to help the owner with the maintenance work". He does not refer to the fee that he received but says that he "merely reported to the owner what had been spent and recovered the costs". This position was reasserted in his witness statement filed in these proceedings. In a letter acknowledged by the 2nd defendant to be from Mr Mak and referring to the 2nd defendant, Mr Mak describes the 2nd defendant as "the person in charge of the project".

11. Mr Law relies on a number of factors to contend that the 2nd defendant was the principal contractor. First, he says the 2nd defendant "promised to do it for (Mr Mak)". But it was not clarified exactly what the "it" was that the 2nd defendant referred to. The "it" could refer to undertaking the work or it could refer to obtaining or finding someone to do the work. The 2nd defendant was not asked to quote a price for the work. He simply found workmen at a price and did not add anything on top of that price. On the whole of the evidence, I find it more likely than not that he simply agreed to find someone to do the work.

12. Next, Mr Law says that the 2nd defendant gave directions as to the time within which the work is to be completed. However, the evidence is that the 2nd defendant asked Mr Yip to complete the work in about a week. The evidence is that a request was made, not directions given. Next, it was said that payment was made by the 2nd defendant to the 1st defendant. The sum paid apparently to the 2nd defendant was simply the sum the 1st defendant asked for. On the preponderance of the evidence, I am satisfied that the 2nd defendant was merely a conduit for payment. There is no suggestion, nor sufficient evidence, to say that he received a payment for himself from which he paid the 1st defendant.

13. It is right that the 2nd defendant made several inspections during the course of the work but it appears from his statement and his evidence that Mr Mak usually paid 15 per cent for a management fee for his services and that the type of work he has done and the inspections he has undertaken are part of a course of conduct between himself and Mr Mak. His receipt of the modest fee of $2,000 and his inspections are entirely consistent with a person in the position of a consultant engineer.

14. Weighing all of these matters, I have come to the conclusion that the 2nd defendant was retained by Mr Mak as a consultant to liase between Mr Mak and the contractor, Mr Yip. Consequently, he is neither a principal contractor, nor an occupier of the premises, and is not liable to the plaintiff for the unfortunate injuries the plaintiff suffered.

15. There will accordingly be judgment for the 2nd defendant in the action. As he represented himself, no issue as to costs arise. I would hope that he would see from the predicament that he has got himself in that unless he is careful about organising his affairs, he may be in some difficulty in the future.

16. I turn now to assess the damages as a result of the injury.

17. The plaintiff was born in March 1943 and is now aged 591/2. He was 55 years old at the date of the accident. As a result of the accident, he sustained a fracture of the odontoid process of the C2 vertebrae, a bilateral Colles' fracture and a scalp laceration at his forehead. He was treated conservatively with close reduction and application of plastercast for the wrist fractures and a halo body jacket immobilisation for the neck fracture. He was in hospital until 27 September 1998 and was on sick leave until September 1999. He was required to wear the halo jacket for I think some three months, during which time he could not take a proper shower and was only able to sleep in a sitting position in a chair.

18. The wrist fractures have repaired reasonably well and he has a reasonable range of motion in both wrists but there is limitation. His neck too has healed well but he still suffers mild stiffness, particularly during weather changes. He is a man of limited education and has been confined to physical labouring tasks to support him through his life. The wrist fractures have severely limited him. Prior to the accident, he could lift weights in excess of 100 pounds. Now he can only lift around 50 pounds. For a man who must undertake physical work to support himself, particularly in the construction industry, this is a severe limitation.

19. Prior to the accident, he was a building labourer earning $450 a day. Mr Law contended for 26 days a month work but I think it was more likely to be in the range of 24 days, if overtime is taken into account, giving him a monthly income in the order of $10,800 per month. He was on sick leave until November 1999 but was not able to find work until August 2000. The difficulty in finding work was directly attributable to the accident for, as the Labour Department sent him to potential jobs, he was rejected by employers when they discovered the limitation on his physical abilities.

20. The work that he had obtained is as a security guard in the construction industry at a wage of initially $7,000 per month, now reduced to $6,300 per month. I take his median earnings at $6,650.

Pain, suffering and loss of amenities of life

21. A neck fracture, even one which is recovered to the extent this plaintiff's has, will always be a problem for a person. That, together with his physical abilities with his arms being restricted, will result in a general loss of ability and amenity of life. He has had to undergo surgery and the requirement to wear the halo jacket for the period it was worn and the restrictions that were carried with it was a severe restriction and discomfort.

22. Having regard to the extent of his injuries, the consequence of the injuries and the general effect of them on his life now, I am satisfied that he falls at the bottom end of the serious injuries category in relation to pain, suffering and loss of amenities of life. I award the sum of $400,000 on this head.

23. The appropriate periods are first from the date of the accident to August 2000 when he obtained work as a security guard. He is entitled to full compensation for the 25 month period at the rate of $10,800 per month, a sum of $270,000. For the second period of pre-trial, his loss of earnings, having regard to his median earnings, has been $4,150 per month times 26 months, a total of $107,900.

Future loss of earnings

24. Mr Law seeks a multiplier of 3 which is appropriate having regard to his age. With his income now at $6,300 per month, the monthly earnings loss is $4,500 per month. Using a multiplier of 3, I award a sum of $162,000. I calculate loss of MPF contribution on the following basis: a) 1 December 2000 - 10 months x $10,800 x 5% = $5,400; b) 13.5 months at $10,800 - $6,300 = $4,500 x 5% = $3,037; c) post-trial - 36 months x $4,500 x 5% = $8,100. I award $16,537 on loss MPF contributions.

25. The following special damages have been sufficiently proved: hospitalisation - $396 and occupational therapy - $308. Those sums are allowed.

26. He claims travel expenses for himself and his family to visit him of $1,333, tonic food of $2,000 and damaged clothing of $240, a total of $3,573. There is no proof of these items but they are reasonable and not disputed and accordingly will be allowed.

27. There will be interest at the rate of 2 per cent and the pain and suffering and loss of amenities damages from the date of service of the writ to date of the judgment. There will be interest at the rate of 4.0625 per cent on the pre-trial loss of earnings and other special damages from the date of the accident to the date of judgment.

28. The 1st defendant must pay the plaintiff's costs which are to be taxed in accordance with legal aid regulations.

29. Leave is reserved to apply in case I have made any mistake in the arithmetical calculations.