Chan To Wai v. Rigid Plumbing Ltd. and Another

PI 1334/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is an action by the Plaintiff against the Defendants for damages arising out of an industrial accident which occurred at a construction site at Hoi Bun Road, Ngau Tau Kok, Kowloon owned by the second Defendant. The first Defendant was the contractor responsible for the work at the construction site and the second Defendant was the principal contractor. At about 2:10 p.m. on 14 September 1990, the Plaintiff was assigned by the first Defendant to work at the construction site and whilst he was cutting a long pipe into installation lengths, the grinding plate or disc of the cutting machine suddenly broke, causing fragments to enter the Plaintiff's right eye. He was admitted to the United Christian Hospital and was found to suffer a rupture of his right eyeball which was repaired surgically under general anaesthesia. His right eye later became totally blind and had to be removed. Within a few months of the accident, the Plaintiff showed mental symptoms which developed into schizophrenia.

The causes of action against the Defendants are: -

- breach of implied terms of contract of employment;

= negligence;

= breach of statutory duty, i.e. duties under Regulation 43(a) and (b) of the Construction Sites (Safety) Regulations and Regulations 7 and 8 of the Factory and Industrial Undertaking (Abrasive Wheels) Regulations;

= breach of common duty of care under the Occupiers Liability Ordinance, Cap. 314.

2. The Defendants in their defence put the Plaintiff to strict proof of all the allegations in the statement of claim both on liability and on quantum. They deny that they were the employer of the Plaintiff and say that he was employed by one Wong Wai Hung, a subcontractor of the first Defendant. They are not responsible for the psychiatric illness suffered by the Plaintiff after the accident. Further or in the alternative, they say that the accident was caused or contributed by the negligence of the Plaintiff and if the Defendants are adjudged to be liable to the Plaintiff they will seek to deduct from the award the sum paid to the Plaintiff by way of employees' compensation in ECC Case No.592. They also contend that the tax liability of the Plaintiff under the Inland Revenue Ordinance must be taken into account for damages awarded to the Plaintiff in respect of loss of earnings.

3. At the commencement of the hearing of the action, I allowed an application by the Plaintiff to strike out that part of the witness statement of Wong Wai Hung asserting that the Plaintiff was employed by him. I also ruled that the first Defendant was estopped from denying that the Plaintiff was its employee because the first Defendant consented to judgment in the claim for employees' compensation in the District Court.

4. With these observations on preliminary matters, I come to the evidence and witnesses called by both sides.

5. The Plaintiff gave evidence regarding his education and training which eventually led to his obtaining a "Certificate in Plumbing and Pipefitting (Apprentices) in 1985. Between 1985 to 1990 he was employed by a number of employers to work in the field of plumbing and pipe-fitting. He started working for the Defendants at the construction site on 30 August 1990. His work involved installing and fitting heavy metal pipes. He was paid on a daily basis at $350 and he worked almost every day in each month. He earned about $10,500 a month.

6. On or about 11 September 1990, Mr. Tsang Tat Kwan, a plumber or technician senior to himself working at the site, showed him how to operate a portable grinding machine fitted with an abrasive disc to cut through a steel pipe, which he had not used before although he had used large floor mounted cutting machines to do this type of work during his training. During his employment with previous employers, he had used smaller portable grinding machines which were always fitted with safety guards which partially enclosed the rotating discs. Mr. Tsang's demonstration only lasted about five minutes. On 14 September 1990, he was working with two "masters" at the site and he was instructed by one of them to get the portable grinding machine from the storeroom, which was in fact an office, to cut a long pipe into shorter lengths to be installed underneath the ceiling and used as water mains pipes. He says that there was no formal procedure governing the use of tools and no one was assigned to look after the equipment and tools on the site. A employee was allowed to walk into the storeroom and take what he wanted without having to notify the supervisor or any person. There was only one portable grinding machine in the storeroom. He says that there were no safety goggles available for use in the storeroom or elsewhere. During his training, he had learned to wear safety goggles while working on grinding machines but he had never used safety goggles since he finished his training because standard safety goggles were uncomfortable to wear over his prescription spectacles. He had not seen anyone working at the site involving in similar operations wore safety goggles.

7. He says that no information or instruction had been given by Mr. Wong Wai Hung or anyone else on the site about changing the abrasive disc on the grinding machine. He was not told that anyone was responsible for that job. He had seen others using the grinding machine change the disc when necessary and thus he believed that the person who used the grinding machine was expected to change the disc himself. A few minutes after applying the rotating abrasive disc to the metal pipe and before he had completed cutting through the pipe, the disc disintegrated and pieces of the broken disc were rejected. A piece of the damaged disc hit through his spectacles and the fragment entered his right eye which caused his right eyeball to rupture, causing extensive damage. Immediately his right eye became blind and bleeding. He experienced severe pain. He was later taken and admitted to United Christian Hospital. He underwent a number of surgical operations and had his right eyeball removed seven months after the accident. He was given medicine to reduce pain and attended follow-up treatment until 1995. From June 1991 he has had employment of various kinds at reduced wages. Currently he is working as a cleaning worker at the Lions Club Centre earning $2,500 to 2,800 a month. He is still receiving medical treatment.

8. Wong Wai Hung was called to give evidence for the Defendants. He was the subcontractor of the first Defendant. He recruited the Plaintiff to work at the site about two weeks before the accident. The Plaintiff told him that he was a very skilful worker in plumbing engineering and requested the witness to give him some big job to do. But he made it clear to the Plaintiff that the Plaintiff was only permitted to work alone on easy and simple jobs or under the supervision of experienced workers; he was not permitted to use cutting machines to cut pipes. On the first day the Plaintiff started work, the witness says that he personally gave him oral instructions as regards the use of safety equipment including goggles, safety helmet and safety belt which were kept in the storeroom on the construction site. He says that all the workers had been instructed to wear goggles to protect their eye when they used portable cutting machines and there were three pairs of goggles in the storeroom which he himself had brought along. They were hung up behind the door of the storeroom. He was not present at the construction site when the accident happened. This witness was evasive under cross examination. When he was asked whether he knew that the portable grinding machine had no protective guard, he replied that it used to have but he did not know why it was not there and then said he subsequently found it in the storeroom. Despite the fact that he would only allow the Plaintiff to do easy and simple work, the Plaintiff was shown how to operate the portable grinding machine on 11 September. The answer of the witness was that he had no idea and he also had no idea who Tsang Tat-kwan was. If indeed that he had given instructions to the masters to assist the Plaintiff on the very day the accident occurred, it is most unlikely that no assistance at all was given to the Plaintiff when he operated the portable grinding machine. Although these two masters have been identified as Ah On and Ah Shing, neither of them was called to give evidence, and there is no evidence that any effort had been made to call them.

9. Having carefully weighed and evaluated the evidence and despite what Mr. Wong Wai Hung claimed in his evidence, I come to the conclusion that there was no clear or sufficient instruction given to the Plaintiff on how and when he should use the portable grinding machine, nor was there any clear or sufficient instructions given to the masters to supervise or assist the Plaintiff in this regard. To put it plainly, Mr. Wong was simply not interested and not caring what might happened. There was no clear indication or direction where a particular equipment was placed and could be found. I find that no clear instructions or information had been given to the Plaintiff in regard to the use and whereabouts of the safety equipments nor was the portable grinding machine guarded as it should have been.

10. On the evidence that has been adduced before me, it is sufficient for me to find and I do find that the Defendants were negligent and in breach of their statutory and common law duties. The first Defendant as the contractor carrying out the work at the construction site and the second Defendant as owner of that site are both liable jointly and severally to the Plaintiff for the injuries that he suffered in the course of his work.

11. I move to the question whether the Plaintiff's mental or psychiatric disorder was caused by the accident. This involves causation. Different opinions were given by Dr. Wong Chung-kwong and Dr. Siu Wang-chin. Both are qualified and experienced psychiatrists. Dr. Wong was of the opinion that the accident and its physical sequalae directly caused the schizophrenia whereas Dr. Siu took the view that the accident or injury was not the sufficient cause of schizophrenia and that it only acted as a non-specific stressful life event to precipitate the disorder in a predisposed individual. Dr. Wong used the terms "direct cause" and "necessary cause" to describe the causative effect of the accident on the psychiatric condition of the Plaintiff. Dr. Wong concluded that the Plaintiff's psychiatric condition was the "much more probable" consequence of the accident. Dr. Siu, on the other hand, said that the accident could not be the direct cause of the Plaintiff's mental condition, but was only "a cause" or "a manifested cause" of the Plaintiff's psychiatric condition. Dr. Siu further said that the underlying cause of the Plaintiff's psychiatric condition was his genetic predisposition and that the accident was only "a minor contributing cause" and "not the substantial contributing cause" of the Plaintiff's mental condition. Both doctors referred to medical literature and writings of eminent psychiatrists in support of their opinions. Without going into details or any specifics, suffice to say I prefer the opinion of Dr. Wong and his conclusions to those of Dr. Siu. I find, on balance of probabilities, that it is more probable than not that the mental illness of the Plaintiff was caused by and the result of the accident. There are other disagreements between Dr. Wong and Dr. Siu, but I will deal with them later as the other disagreements only concern the quantum of damages, not liability.

12. Before I part with liability, it remains for me to deal with the question of contributory negligence raised in the defence. Mr. Hingorani relies on Regulation 43(b) which provides that the contractor responsible for the construction site shall ensure that the workman uses the goggles. He submits that this is not one of the cases of breach of statutory duty where the Defendants can say "I am in breach of the regulations only because (or even partly because) of your default." I do not agree with this submission. The Plaintiff was a trained and qualified plumber and had been engaged in the field of plumbing and pipe-fitting for seven years before the accident. He noticed that there was a rotating disc fitted to the cutting machine and he agreed that the rotating disc was the most dangerous part of the machine. As a trained and qualified plumber, he must have foreseen the obvious risk of using the machine without taking protective measures. The Plaintiff was aware of the danger of not wearing goggles when operating a grinding machine. But it is his evidence that even there were goggles at the site, he would not use them because of the discomfort and he also thought that the prescription spectacles he was wearing could protect him. Even if goggles were available at the construction site, the Plaintiff would not have used them. It does not mean that the accident would be avoided if the Plaintiff had put on goggles but at least the extent of the injuries could have been reduced.

13. A reasonable approach has to be adopted in interpreting Regulation 43(b). The words "shall ensure" does not mean, in my view, that the employer has to be present every time the workman works and actually sees that the workman picks up the goggles and puts them on. The statutory duty would be discharged if the employer provides goggles for the workman with instructions of how to use them and a sufficient warning of the danger of not using them. The Plaintiff was a qualified plumber and he should have known the danger of not wearing goggles but chose to expose himself to the risks which were so obvious to him. There is no excuse for the Plaintiff not to wear goggles. Comfort is certainly not the most important consideration nor his mistaken belief that his prescription spectacles would protect him. What is important is his safety. In the circumstances of this case and taking all the evidence into account, I consider that the Plaintiff had contributed to the accident and hence his injury. I assess his liability to be 20%.

14. I turn now to quantum.

Special damages

15. The claim for special damages consists of pre-trial loss of income less sick leave payments from the Defendants totalling $45,480.90; medical expenses; travelling expenses; expenses for glasses and nourishing food. The Plaintiff puts the total figure at $727,207.70 and this is fully set out in the amended revised statement of damages. The pre-trial loss of income of $685,001.70, on which tax liability in the agreed sum of $131,278.80 must be deducted, comes to $553,722.90. To this sum, the Plaintiff's claim for medical, travelling, nourishing food and the expenses for a pair of glasses, which I allow, amounting to $42,206 must be added. Together, the award under this head i.e. $533,722.90 + 42,206 = $595,928.90 is arrived at.

Damages for pain and suffering and loss of amenities

16. Since I have found that the Plaintiff's mental illness was caused by the accident, his injuries fall under the category of 'gross disability.' This comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. After having considered arguments and the decisions in Lee Ting Lam v Leung Kam Ming (1980) HKLR 657 and Chan Pui Ki v Leung On & Another, Civil Appeal No.263 of 1995, I award damages in the sum of $800,000.

Loss of future earnings

17. This by far involves the largest amount. Having considered submissions from counsel and the authorities cited, I accept that a multiplier of 16 is reasonable. The Plaintiff is now 30 years old and could, but for the accident, look forward to a long and fruitful working life. His future is now in complete ruin. It seems that he can from now on only work in enclosed environment without much exposure and at very low wages. He will not be in a position to compete with others to find employment in times when business is bad. In these circumstances, I also accept the multiplicand of $19,592 suggested by the Plaintiff and this produces an equation of $19,592 x 12 x 16 = $3,761,664. Tax liability in the agreed sum of $435,532.80 will be deducted and this results in an award under this head the sum of $3,326,131.20.

Future expenses

18. The first and second items are for a new prosthesis fitted once every 6 to 8 years and visits to an Ophthalmologist 2 to 3 times a year. The third item for psychiatric treatment throughout the life of the Plaintiff did not appear at the statement of claim or the amended and re-amended statement of claim. It was only put into the amended revised statement of damages which was filed at a very late stage after Dr. Wong had written his second report. Thus far, the Plaintiff has been receiving treatment at public hospitals or clinics and it appears that the treatments he received were satisfactory and were of a high quality. He has not made any complaints about those treatments. On this issue, I agree with Dr. Siu that there is no need for the Plaintiff to receive both private and public treatment at the same time. Confidence between doctor and patient is most important in this type of situation. Different opinions and conflicting advice from different doctors may undermine that confidence and produce more harm than good. I would disallow the claim for expenses for future psychiatric treatment, but allow the claim for the other two items at $48,000 + 48,000 = $96,000.00.

19. In summary, the Plaintiff is entitled to the following damages subject to the deduction of the amount which he has already received under the Employees Compensation Ordinance and the total sum to be further reduced by 20% on account of his contributory negligence:

Special damages	$ 553,722.90
Pain, suffering & loss of amenities	800,000.00
Loss of future earnings	3,326,131.20
Future expenses	96,000.00
	$4,775,854.10

20. The final calculation is, therefore, $4,775,854.10 - 20% ($955,170.82) - $319,069.10 (Employees' Compensation) = $3,501,614.20.

21. Judgment is entered for the Plaintiff against both Defendants for the sum of $3,501,614.20. Special damages will carry interest at the rate of 5.84% from the date of the accident to the date of judgment and general damages for pain, suffering and loss of amenities in the sum of $800,000.00 will carry interest at 2% from date of writ, also to the date of judgment. The Plaintiff will have his costs. The Plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.

(Michael Wong)

Judge of the Court of First Instance