TSUI YIU CHUNG v. SECRETARY FOR JUSTICE ON BEHALF OF THE HOUSING BUREAU

1995, No. P.I.1153

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURY LIST

_______________

_______________

_______________

J U D G M E N T

_______________

1. The Plaintiff, a divorced man of forty-nine years of age, seeks damages against the Defendant for injuries sustained by him on the afternoon of 15^th December 1992 when, in the course of his employment, he was engaged in demolition work on the roof of a cooked food stall building at Pok Hong Estate in Shatin. It is the Plaintiff's case that, while working on the roof, he slipped and fell and sustained an injury to his lower back later confirmed to be a prolapsed disc.

2. It is common cause that at all material times the Plaintiff was employed by the Housing Department as the foreman of the Pok Hong Estate Tidiness Team and that on the afternoon of 15^th December 1992 he was instructed to carry out demolition work on the roof of the cooked food stall building in the estate. It is not disputed that the injury was somehow sustained during the course of that work. Indeed, on 3^rd January 1995, after Plaintiff had instituted action in the District Court in terms of the Employee's Compensation Ordinance, Cap 282, the Housing Department consented to judgment in that action which later resulted in an award being made to the Plaintiff in the sum of $448,267 inclusive of accrued interest.

3. The District Court action, of course, did not raise the issue of fault, it not being necessary for the Plaintiff in those proceedings to allege fault on the part of the Housing Department. Nor, in consenting to judgment, was there any admission of fault made by the Housing Department. In the action now before this court, however, the Plaintiff has based his claim for damages on the fault of the Housing Department, alleging that his injury was sustained by the negligence of that Department whether arising out of common law or a breach of statutory or contractual duty. It is this allegation of fault or negligence which has been denied by the Housing Department.

4. In this regard, paragraph 4 of the Plaintiff's amended Statement of Claim reads as follows : -

" On the 15^th December 1992, at or about 14.30 hours, the Plaintiff was working at the estate, in the course of his employment with the Defendant, assisting in the removal of an illegal canopy from a cooked food stall, when he fell and hit his back on the concrete roof of the cooked food stall, whereby the Plaintiff sustained serious personal injury."

In reply, the Housing Department pleaded as follows : -

" With regard to paragraph 4, it is admitted that on 15^th December 1992 at about 14.30 hours the Plaintiff was working at the estate in the course of his employment with the Defendant assisting in the removal of an illegal canopy from a cooked food stall. The Defendant has no knowledge of the remaining matters stated in paragraph 4, they are not admitted and the Defendant is put to strict proof as to those matters."

5. While, therefore, the Housing Department does not make any positive averment as to how otherwise the Plaintiff injured himself, it does not accept that he injured himself in the manner alleged and puts him to the proof thereof. In short, before any assessment of quantum, the primary issue to be resolved is one of causation.

The relevant law

6. In law, the burden on the Plaintiff in the matter of causation is clear. In this regard, for example, Lord Wensleydale in Morgan v. Sim (1857) 11 Moo.P.C. 307 at 312 stated : -

" The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party."

7. In the absence of direct evidence, there is nevertheless sufficient evidence of fault or negligence if the facts proved and the inferences to be drawn from them are more consistent with fault or negligence on the part of the Defendant than with other causes. If, however, the Plaintiff's evidence is equally consistent with negligence on the part of the Defendant, as with other causes, the allegation of negligence cannot succeed (see Charlesworth & Percy on Negligence, 9^th Ed, pages 390 and 391).

The factual background of Plaintiff's employment

8. The Plaintiff first joined the Housing Department in 1971 and in 1988 was promoted to the rank of foreman. By December 1992 he had been working for some considerable time at the Pok Hong Estate in Shatin. As foreman of the Tidiness Team, it was his duty to ensure the general tidiness and good order of that estate. This of necessity involved work from time to time of a manual or physical nature; for example, moving goods that blocked pedestrian walkways or dismantling and removing odd fixtures and fittings left in vacant apartments. As foreman, the Plaintiff was responsible for supervising the work of his team members but he too - to a more limited extent - would have had to involve himself in work of a physical nature.

9. The members of the Tidiness Team had access to a limited supply of basic tools, however, neither the Plaintiff nor his team members had any special training in demolition or removal work.

10. In October 1992 a new housing manager was posted to Pok Hong Estate. He was Mr Yau Sai Tung. Although Mr Yau was not prepared to concede the point, the preponderance of the evidence shows that he wished at an early stage to stamp his mark of authority on the estate. It was he, for example, who initiated the action to ensure that the licensed cooked food stall holders on the estate did not exceed the bounds of acceptability in the sort of unauthorized canopies that they erected and it was he who gave the order to proceed on 15^th December to dismantle the canopy of one of the offending licensees.

11. The Plaintiff came into conflict with Mr Yau and was censured by him for such things as allegedly arriving late at work and not wearing the prescribed uniform. By mid December therefore, when the work of dismantling the unauthorized canopy took place, it is apparent that there was some tension between the two men. The matter came to a head some two weeks after the day on which the canopy had been dismantled when, on 29^th December 1992, Mr Yau gave a verbal warning to the Plaintiff for misconduct which, in addition to the matters noted above, included use of foul language and being rude to senior officers. Whether that warning by Mr Yau was merited or not I cannot say. I make no finding on the matter. I am satisfied on the evidence, however, that from early December 1992 through until late January 1993 the Plaintiff became increasingly aggrieved at what he perceived to be the injustice of the manner in which he was being treated.

12. For the Plaintiff sadly much worse was to come in the months ahead. In September 1993 he was charged with the criminal offence of using deception to obtain overtime payments; he pleaded guilty to these charges and was sentenced to four months imprisonment. Thereafter he was dismissed from the Service with the consequent loss of pension benefits.

13. By the time the Plaintiff issued his writ of summons in this matter his prison sentence had been served. Nevertheless, having heard him give evidence, I am satisfied that he continues to harbour a sense of grievance in respect of this matter too, believing that he was selected to be punished for what was prevalent conduct among housing estate workers, conduct sanctioned (if only by turning a blind eye) by their more senior officers.

The architectural design of the cooked food stalls

14. Before considering the evidence of how the Plaintiff came to injure himself when dismantling an unauthorized canopy, it is necessary to say something of both the design of the cooked food stalls themselves and, in general terms, of the unauthorized canopies erected by the licensees of those stalls.

15. In the heart of Pok Hong Estate there are gardens, shops, a community hall and two adjacent buildings that house cooked food stalls. These two buildings are open-sided allowing the operators of the cooked food stalls to spread their tables out from under the roofs of the buildings into the open air. Each building houses four cooked food stall operators.

16. As for the roofs themselves (the 'main building roofs'), they may be described as being pyramid-shaped; that is, each of them rises from a square base at an angle accepted in the pleadings of about 45 degrees to an apex at the centre top. I confess, however, that when I viewed the angle of those roofs at a site visit they did not appear to rise so steeply. At the apex of each main building roof is a chimney. The main building roofs are each made of concrete. On the top side, as protection against the elements, each is covered in small grey-coloured building tiles. During the course of the trial no evidence was given as to the distance from the chimney at the apex of each roof down to the outer edge of the roof. However, the photographs placed into evidence and a visual study during a site visit make it plain that the roofs are relatively large structures. Each houses four separate kitchen and serving sections, room for tables and chairs in each section and space of course for public access.

17. It is not disputed that at various times all of the cooked food stall operators, in order to give themselves more sheltered space, have erected canopies that extend out from the main building roofs into the open spaces that surround the two adjacent buildings. Invariably these canopies have to be supported by vertical poles and some sort of framework attached to the roof. Invariably these canopies are made of canvas which can be rolled back against the main building roof or a little onto it. Although these extensions are unauthorized, it appears that they have been tolerated by the housing estate authorities provided they do not present a hygiene risk and are not too substantial and/or permanent in nature. Indeed, such unauthorised structures are still to be seen today.

18. On 15^th December 1992, however, in what appears to have been a unique operation in the Pok Hong Estate (certainly one that has not been repeated) the order was given to dismantle the canopy which had been erected by the licensee of Stall No.6. The team chosen by the estate management officers to carry out the work was the Tidiness Team headed by the Plaintiff. The demolition/dismantling work carried out by the Plaintiff and his team members that day related only to this one canopy and to no other.

The structure of the unauthorized canopy at Stall No.6

19. There has throughout the trial been a dispute as to the true structural nature of the canopy that the Plaintiff and his men were ordered to dismantle as well as the extent of their orders concerning what parts of that structure should be dismantled.

20. It is agreed that the roof of this unauthorized canopy was constructed essentially of angle irons. These irons projected out from the main building roof and were crossed at right angles by other irons making for a form of square-shaped lattice work. Wooden boards were laid on top of this lattice work, secured by being bolted into the angle irons. A number of vertical iron poles set into the ground acted as pillars to hold up the canopy. On the evidence, I am satisfied that the canopy roof itself was built so that it sloped outwards and downwards. But this slope was not as steep as the slope of the main building roof. To ensure water-proofing, a canvas (or nylon) sheet was laid over the canopy roof. It was, therefore, a structure of some permanence and solidity. But that essentially is where agreement as to the structural nature and extent of the canopy ends.

21. The most fundamental point of disagreement concerns the manner in which the canopy roof was secured to the main building roof and, resulting from this, the extent to which it extended up and onto the main building roof.

22. In broad terms, it is the defence case that the unauthorized canopy was secured to the main building roof by being bolted to some form of iron framework that stretched along the edge of the main building roof. This framework, which was attached to the tiled surface of the main building roof, sat no more than two or three feet from the outer edge of that roof. The framework rose approximately one foot into the air and had the canopy bolted to it. While the canvas covering which acted as a water-proofing agent may have stretched a further distance up the slope of the roof, perhaps as much as a third of the way up or even a little more, the framework beneath did not.

23. Contrary to this, it is the Plaintiff's case that the framework, far from being purely linear in design and running along the outer edge of the main building roof, in fact extended right up the slope of the main building roof to within close proximity of the chimney at its apex, covered at all times in canvas for water-proofing. This framework extended out to cover most of the surface of the outer roof that housed Stall No.6. This framework indeed was not merely a structure for supporting and anchoring the unauthorized canopy that jutted out into open space but was more properly an extension of that canopy because it too consisted of angle irons set in the same square-shaped lattice work as the canopy and it too had wooden boards laid on top and bolted to those angle irons. During the course of his testimony, the Plaintiff drew a diagram to describe what he had been describing orally and that diagram leaves no room for doubt.

24. The question of course is what turns on this disputed difference?

25. In essence, it is the Plaintiff's case that, because of the nature of the construction that he had to dismantle, he was forced to make his way up the slope of the main building roof to a spot near the apex. He did not therefore work at the edge of the main building roof and on the canopy extension, the slope of which, from the evidence, was not as steep as the main building roof. Nor did he work in an area where, if there were difficulties, he could work from underneath, standing on a ladder, as one of the other members of the Tidiness Team testified that he had done. Instead, he was forced to work at a greater height and on a steep sloping surface without any safety precautions being provided. His predicament was made worse by the fact that it had been (or was still) raining which rendered the work area wet and slippery. It is the Plaintiff's case that, when attempting to prise free a wooden board from on top of the highest portion of the framework, one of the bolts or screws suddenly broke making him lose his balance. With no safety measures to assist him, he had fallen and hit his back.

26. Against that, it is the defence case that there was no framework as high up the main building roof as the Plaintiff has alleged. Therefore, he could not have had the accident in the geographical location and in the manner that he has alleged, those two factors being essentially intertwined. It follows that the pleaded allegations of negligence and/or want of care must fail. It is further the defence case that there has been no evidence from any third party that the Plaintiff was seen to fall during the time when he was on the roof; in fact, the evidence of third parties is that they did not witness the Plaintiff in any form of physical distress at any time when he was on the roof.

27. What then are my findings as to the true nature and extent of the unauthorized canopy? Having considered all the evidence, there is no doubt in my mind that the unauthorized canopy was essentially the structure described by the defence and did not extend up the slope of the main building roof in the manner alleged by the Plaintiff. In short, I reject the Plaintiff's evidence in this regard. I say this for a number of reasons.

28. First, the Plaintiff's evidence that the extension of the framework extended up the slope of the roof to the near vicinity of the chimney was not supported by those members of his Tidiness Team who had gone up onto the roof with him. They spoke only of the unauthorized canopy that extended out from the main building roof having wooden boards bolted down onto the angle iron framework. They did not speak of such boards being bolted to any framework that continued a substantial way up the slope of the roof. For example, Mr Siu Hei Lok spoke of the wooden boards being fixed to some sort of 'joint' to the edge of the main building roof and extending outwards away from that roof. At first, he said, he stood on top of the canopy to try and prise the boards loose but then abandoned this approach and worked from below the boards using a hammer to try and hit them from underneath upwards. This, he said, was more successful. This work he carried out by standing on a ladder below the unauthorized canopy. He did not speak of any boards extending up the slope of the roof which, of course, could only have been removed from above.

29. One of the Tidiness Team members did say something of the iron framework extending up the slope of the roof but he was one of the team members who had not at any time gone up onto the roof itself and, in my judgment, it was patently clear that he was attempting to reconstruct what he believed should have been the case by looking at various photographs rather than relying on his memory. At one stage even Plaintiff's own counsel was constrained to accept that this was what the witness was doing.

30. Second, if Plaintiff is correct, for the kind of framework he described to be secured to the main building roof, it would somehow have to be bolted into the roof. Indeed, Dr S. Rowlinson, an engineer called by the Plaintiff as an expert witness, placed into evidence a diagram which represented his understanding of the Plaintiff's description of the framework and that diagram showed that the angle irons upon which the wooden boards were placed were bolted into the roof in such a manner that the bolts were imbedded into the concrete. This obviously would have meant that the tiles sitting on top of the concrete would have been pierced. With the framework sub-structure consisting, as I have said, of a square-shaped lattice work of lengths of angle iron, there would have been a fairly regular pattern of such bolts being imbedded into the concrete covering a substantial part of the roof above Cooked Food Stall No.6. However, a photograph of the main building roof taken by the Plaintiff on 17th January 1993, just a month after the dismantling of the unauthorized canopy, shows no signs of any such bolts having been removed from the roof leaving regular indentation marks or of such bolts remaining in situ and appearing as regular small-sized extrusions. I appreciate, of course, that photographs can be deceiving. However, the uncontradicted evidence during the trial was that the main building roof has not been renovated or re-tiled since December 1992 and therefore appears today as it was immediately after the dismantling work had taken place. During the site visit, from an elevated vantage point, it could be seen that the tiling on the relevant part of the main building roof was essentially undisturbed. Certainly there was no sign of the regular indentations or extrusions that would have supported the Plaintiff's allegations.

31. Third, bearing in mind the evidential burden on the Plaintiff, there was no convincing evidence of who must have removed that extensive sub-structure of angle irons bolted to the slope of the roof. The members of the Tidiness Team spoke only of being instructed to remove the wooden boards bolted onto the angle irons. This, they said, is what they did. They made no mention of removing any of the angle irons or of attempting to do so or even of being initially instructed to do so. Contrary to this, the Plaintiff said that they had the obligation to do so but were unable to carry out that work because, with their available tools, it was too difficult. He could only say that the stall holder himself did it. But, if so, that would have constituted a fairly major operation in itself. The angle irons bolted to the roof almost up to the chimney, after the removal of the wooden boards, would have presented a very obvious eyesore. Nothing, however, was produced in the relevant housing estate file (which was examined by both counsel during the course of the trial and certain minutes exhibited) to show that the estate management had brought in a better equipped team or issued any directive to the stall holder to do the work himself or had at any later time ensured that such removal work had taken place.

32. Fourth, there was no evidence as to why the operator of Cooked Food Stall No.6, in building what was essentially nothing more than a canopy extension to the main building roof, would have found it necessary to extend the framework of the canopy not simply two or three feet onto the main building roof in order to anchor the canopy securely but a much more substantial distance up the slope of the roof itself. Such work, if the Plaintiff's evidence is accepted, would have entailed bolting the angle irons into the concrete roof at regular intervals and placing boards upon those irons which again had to be bolted down to secure them. Photographs of the main building roofs taken by the Plaintiff in January 1993 show no such extensive structure erected by any other stall holder in either building and none were seen during the Court's site visit, indeed nothing was seen that came anywhere close to matching the dimensions of the structure described by the Plaintiff.

33. Even the Plaintiff's expert witness, Dr Rowlinson, an engineer by profession, found it puzzling why such a framework should be fixed so far up the slope of the roof that, as he understood his instructions, the framework went 'almost up to the chimney'. When asked by the Court what reason there would be for extending the framework that distance when it did no more than follow the line of the roof, he replied : 'That's a question I tried to work out but I was unable to get an answer that I could understand from the Plaintiff. The only reason I could think of is, if you actually abut it to the chimney itself and screw the plastic sheeting onto there [the chimney], then that can waterproof it....' However, the Plaintiff in the course of his testimony stated clearly that the framework did not abut against the chimney but stopped a little before reaching it and Dr Rowlinson himself, in the course of his testimony, accepted that his understanding of the Plaintiff's instructions may well have been that it stopped a little short and to that extent his diagram may have been inaccurate.

34. I accept, of course, that the incident of the 15^th December 1992 happened a good many years ago. The passing of time can warp the best of memories. Proceedings in this matter were only issued in 1995 while Dr Rowlinson's report was dated July 1996. But, whatever the cause of the Plaintiff's most serious injury, it has always been his case that his injury was sustained that day. The evidence shows that he carried out the work on the roof of the cooked food stall building with reservations and within days was in communication with his superiors concerning his accident. His mind, therefore, would have been focused on what happened and how it happened at a very early stage.

A study of Plaintiff's varying allegations of how the accident occurred

35. In his amended Statement of Claim, the Plaintiff's accident was pleaded as follows : -

" In order to dismantle the canopy, the Plaintiff had to stand on the sloping concrete roof of the cooked food stall [the main building roof]. At the time of performing the clearance work, it was raining slightly. The accident occurred when the Plaintiff was using a crow-bar to remove a nail from part of the canopy when he slipped and fell backwards hitting his back on the concrete roof of the cooked food stall."

36. These pleadings indicate that the injury was caused by falling back and hitting the concrete roof. It is, however, the defence case that the Plaintiff has been so inconsistent in his allegations concerning his injury that it simply cannot be known on a balance of probabilities how in fact it was caused.

37. What then is the history of the Plaintiff's complaints?

38. It was the Plaintiff's oral evidence that, when he fell and hurt himself, he was working on the roof with two members of his Tidiness Team. After he had fallen, he said he was in great pain but did not cry out or summon the help of either of his two colleagues. He said that he sat for about minute; when the pain eased he climbed to his feet again and continued with his work. He said that one of his colleagues (he did not name the man) asked him what had happened and he replied he was alright. However, none of the five members of the team, each of whom was called to give evidence, spoke of seeing the Plaintiff fall or of being in distress and enquiring of him what had happened.

39. Once on the ground, the Plaintiff said that he reported to his superior, Mr Yan Wai Chee, that he had hurt himself. Mr Yan, who now lives overseas, was not called to give evidence. However, his witness statement was placed into evidence. In that statement he said that he supervised the work (albeit from the ground) and did not see Plaintiff fall. His statement said as follows : -

" There was no accident throughout the whole course of the demolition. I did not notice that foreman Tsui Yiu Chung [the Plaintiff] had sustained any injuries on site and he did not show any sign of discomfort immediately after the demolition work. Neither foreman Tsui Yiu Chung nor any other team members had reported injury to me... after the operation."

40. I accept, of course, that this witness was not called to give oral evidence and was not as a result subject to cross-examination. So, in isolation, I can give only the most limited weight to that statement.

41. The first written record of the Plaintiff's injury emanating from the Plaintiff himself was a short note written by him to Mr Yan on 8^th January 1993, some 24 days after the accident. This note was obviously related to sick leave and in respect of the injury said only : "...I sustained sprains in the lower back while working in the cooked food pavilion." When asked in cross-examination why he had not mentioned the fact that he had fallen and injured himself that way, the Plaintiff replied that he did enquire of Mr Yan if he should state the cause of the injury but was told that, as he had obtained his sick leave, there was no need to write it, just a few words would suffice. That was why he had said nothing of falling and injuring himself as a result of that fall. What must be remembered, however, is that by 8^th January 1993, the Plaintiff was clearly suffering from his injury and was in addition aggrieved at what he considered to be the unjust and high-handed attitude of the Housing Manager, Mr Yau, who had given the order for him and his Tidiness Team to carry out the demolition work in what the Plaintiff considered to be unsafe conditions. He had, in fact, at the end of December or in early January 1993, written a long letter to complain of his treatment and answer allegations made against him. In my judgment, those two matters; that is, the continuing pain of his injury and his sense of grievance, would have focused the Plaintiff's attention not simply on the injury itself but also the cause of it and it does seem perhaps strange that if he had in fact slipped and fallen while working in dangerous conditions that he should not have made at least some brief reference to it, even if it was a note related only to sick leave.

42. The letter written by the Plaintiff on 17^th January 1993, nine days later, was, however, much longer and more detailed and, in my opinion, did deal more directly with the reason for the injury. Indeed, this letter in its opening passage said : "It's heard that (somebody) asked why the report came so late. Now I want to tell the truth. Please excuse me. The cause of the accident is that..." Further down in the letter he wrote as follows : -

" The manager said that dismantling work had to be carried out at once. If no dismantling was carried out, (it) would be treated as disobedient to a senior officer. Though I was not a skilled worker, I dared not disobey when I heard that I had no alternative but to take the crow-bar and members of the T.T. Team and went to the top of the stall to dismantle a large canvas canopy, several tens of wooden planks of size 4' x 6' and to carry out welding work at several tens of places. As we worked when it was raining, (we) were in great peril. But there was no alternative. Whether due to the use of excessive force at that time, the old wound in my lower back pained me again. Because of the work, I had to do (it) despite the pain. Afterwards, (also) because of the work, I did not see the doctor at once." [my italics]

43. Further on in that letter on two occasions the Plaintiff wrote only that he had suffered a sprain (or sprains) in his lower back during work. Despite the fact that the Plaintiff spelt out the dangerous conditions in which he was forced, under the unfair pressure of the orders of a superior, to carry out the work on the roof, nothing was said of any slip and fall.

44. During the course of the trial, when asked to explain why he had not written that he had slipped and fallen and banged his back against the roof, the Plaintiff - in what appeared to me to be an unconvincing invention - said that he had used the wrong characters in Chinese and had meant to use the character for head instead of back as he had meant in that passage to say only that the over exertion had brought on an old migraine problem.

45. The first time that the Plaintiff mentioned a fall in writing came four days later in a letter of complaint concerning his conflict with the Housing Manager, Mr Yau, and his desire to be transferred to another housing estate. This letter, dated 21^st January 1993, was addressed to the then Chief Secretary. In it he wrote : -

" It was raining at that time and the top of the cooked-food pavilion was 30 feet high i.e. about 2 storeys above the ground and it was inclining steeply. Being forced to carry out the work, despite the danger, with the T.T. Team I unfortunately slipped and fell and sprained the old wound in my lower back when dismantling the canopy. In spite of the great pain, I still carried on with my work." [my italics]

46. From this time, the Plaintiff remained firm in his allegation that he had suffered a slip and fall brought about by the steep incline of the roof, the wet and slippery conditions and the lack of adequate safety precautions. However, during the trial more than one account of that slip and fall was given.

47. The Plaintiff's expert witness, Dr Rowlinson, in the course of his evidence, adopted a comprehensive written report prepared by him. In that report, he gave a detailed account of the accident which he said had been recounted to him by the Plaintiff with the assistance of an interpreter. That account was recorded by him as follows : -

" Mr Tsui [the Plaintiff] was attempting to remove the board marked 'A' on Appendix 1 with a crow-bar (which was about 3' long). He was levering the board free with the crow-bar in his right hand and he was holding a screwdriver in his left hand. During this process he slipped on the wet boards and fell down the slope of the roof, hitting a metal frame at the edge of the roof and thus sustaining his injuries. This metal frame was an angle iron used to support the canopy. Mr Tsui ended up half on and half off the roof structure; he did not fall to the ground below."

48. On this account, it is no wonder that Dr Rowlinson spoke of the need for crawl ladders and other safety devices. For, on this account, the Plaintiff had slipped down the greater length of the roof and had then, at about the edge of the roof, come into collision with an angle iron which to a material degree, while it caused his lower back injury, must also have been the obstacle which prevented him falling off the roof to the ground.

49. When asked to explain the discrepancy between his evidence and that of his own expert witness, the Plaintiff said that Dr Rowlinson must have misunderstood him. Such a misunderstanding, cannot of course be discounted but, if it was a misunderstanding, it was a most fundamental one.

50. What then of the Plaintiff's own evidence? Initially, he said that, while prising a screw loose from a board, suddenly the screw had broken and he had fallen backwards. He said that he had fallen onto an angle iron which was fixed onto the concrete roof. This impact caused him severe pain in his back. He said that after the fall he skidded down a little, a foot or two, but held onto some object to stop him slipping further. The Plaintiff's pleadings of course spoke of no impact with an angle iron but only of hitting his back on the concrete roof. Later in his evidence, however, the Plaintiff did not speak of hitting an angle iron. He spoke rather of his back hitting the chimney or the very top of the roof or perhaps that part of the roof structure where the roof and the chimney came together. In short, later in his evidence, he spoke of hitting what could properly be called the roof in accordance with his pleadings.

51. While there was a dispute as to whether it had been raining or not at the time when the dismantling work was done, in my judgment the probabilities support the evidence that there would have been some wetness on the roof. I am further satisfied that the work on the unauthorized canopy required a good deal of caution; it was not a stable structure and was sloping too. In short, the probabilities support the contention that the roof and canopy extension was not a safe workplace. But in my judgment it is not enough simply to show that an injury was occasioned in or on an unsafe workplace. There must be a causal connection between the lack of safety and the injury. I confess, however, that the shifting versions of how the Plaintiff injured himself made it impossible for me to decide on the balance of probabilities how the accident occurred. Indeed, I go so far as to say that, by the end of the hearing, I was left with a real doubt in my mind that the Plaintiff had fallen at all that day.

52. While I have the greatest sympathy for the Plaintiff's present disability and also for the many personal crises which he has had to endure over the past ten years, I did not find him to be a credible witness. I appreciate that he must have been under great emotional stress, I accept that he suffers from abiding depression. Nevertheless, on several occasions I am satisfied that, when in difficulties, he resorted to overt displays of emotion requiring brief adjournments or, more seriously, to making up answers. I have already spoken of one vivid example of the latter. There were several others.

The injury

53. What then of the nature of the injury itself, does this assist the Plaintiff? In my judgment it does not.

54. It was the uncontested medical evidence that the Plaintiff sustained a prolapsed itervertebral disc at the L3-4 level. Such an injury is often preceded by some degeneration but is brought on invariably by a sudden trauma. However, that trauma, which consists of some kind of abnormal force; that is, a force beyond the normal daily physical motions of walking and sitting, need not be brought about by a fall or some sudden forceful impact. A prolapsed disc may be caused by any movement of the torso such as attempting incorrectly to lift a heavy object or pushing against such an object. It is not possible to measure the force required by any standard, objective scale. The force (or trauma) required will always be relative to the individual.

55. In the present instance, therefore, the plaintiff's injury may have been sustained on 15th December in any number of ways that accord more with his first detailed letter dated 17^th January 1993, perhaps in lifting one of the wooden boards that had been removed from the canopy or loading those boards onto the trolley for removal. It is possible to speculate on any number of plausible scenarios that are not explained by the pleaded negligence of or lack of care on the part of the Defendant.

Conclusion

56. Despite the considerable personal sympathy that I have for the Plaintiff's disability, in my judgment he has not been able to show, on the balance of probabilities, even in the most general terms, how his injury was sustained. In fact, as I have already said, I harbour the gravest reservations as to the validity of the account given by him in evidence. It flows from that, in the circumstances of this case, that he has been unable to show that his injury was caused by the negligence, lack of care or other wrongful act of the Defendant alleged in his pleadings. His claim must therefore be dismissed. There will be an order nisi for costs in favour of the Defendant with liberty to apply within thirty days of the date of this judgment.