MAN SAI KUN v. LEUNG KIT KEE METAL WORKS AND OTHERS

Date of Handing Down Judgment : 5 November 1999

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J U D G M E N T

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The Plaintiff's claim

1. The Plaintiff claims damages for injuries sustained by him on 28th August 1992 in the course of his employment with the Defendants when he suffered an electric shock which caused his body to jerk upwards and forwards causing him severe pain in his back and right leg which has disabled him from working.

2. The particulars of negligence which the Plaintiff has pursued are :

1. failing to provide/maintain suitable plant/equipment to enable work to be carried out safely;

2. failing to provide welding equipment fit for its purpose;

3. failing to maintain welding equipment;

4. failing to provide a safe system of doing welding work;

5. failing to provide the Plaintiff with a separate welding earth;

6. failing to supervise.

The Plaintiff's evidence on how the accident occurred

3. The Plaintiff gave evidence that on 28th August 1992 he was employed by the 1st Defendant as a casual worker at a construction site where a temple had been constructed. He was employed as a casual metal worker. For the previous half month or so before 28th August 1992 he had been engaged in making a steel walkway running around three sides of the temple. On that day he was up on the walkway with a co-worker and he was holding a steel bar with his right hand while the co-worker was about to weld the steel bar onto the walkway which had already been built. The Plaintiff was sitting astride a cast iron pipe and bending forward. He was stretching his right arm out straight and holding the steel bar. He testified that once his co-worker did the electric welding, the electric current passed through his body and so he suffered an electric shock. The co-worker had struck the welding gun at the gap between the steel bar and the walkway and once he struck at it, the electric current passed through the Plaintiff's body. The Plaintiff said he jerked forward and he felt that his waist had broken. His right hand still held the steel bar. The co-worker came to hold the steel bar, so the Plaintiff released his grip on the bar and he took a rest. Eventually he went to the Accident and Emergency Department of Queen Elizabeth Hospital. He returned to the hospital on 1st September 1992 and was admitted. On 4th September 1992 he was transferred to the Kowloon Hospital for rehabilitation and he was not discharged until 23rd September 1992.

4. Under cross-examination the Plaintiff said the co-worker was squatting on the steel walkway opposite to him. The steel bar had one end screwed into the concrete wall and the free end was suspended and not resting on anything but was held up by the Plaintiff. During the site visit which the Court made on 29th April 1998, the Plaintiff said that while he was sitting astride on the pipe, one of his legs was resting on a steel bar which had been welded and which was parallel to the steel bar that he was holding.

5. The pipe that he was sitting on was running parallel to the catwalk and that pipe came out of a wall. On the day in question the Plaintiff was wearing gloves made of synthetic leather which the Plaintiff agreed provided insulation against possible electric currents. He admitted that he and his co-worker knew that there was danger in using an electrical welding machine. However, he said, they were only metal workers and they did not have the clothes which could guard against the risk of receiving electric shock. The Plaintiff said that after he received the electric shock, his co-worker came and held the bar that he (Plaintiff) had been holding and he (Plaintiff) then released his hand. The Plaintiff then sat there on the iron pipe for approximately half an hour. After the rest, the co-worker helped the Plaintiff down. After the Plaintiff got down, he stood for a little while, then he walked for a little while then he sat and then he went to see a doctor.

6. The following part of the Plaintiff's statement was put to him :

"After the electric shock I felt pain in lower back and in my right leg, below the knee and above my ankle. I took rest for about 30 minutes, then Cheng and I finished off the work and we climbed down the structure."

The Plaintiff denied that he did any work after the incident. He said he went down by the bamboo ladder, the same bamboo ladder that he used to get up there in the first place. He said he felt pain in his lower back and also in the outer aspect of his right calf.

7. The Plaintiff said he went to the Accident and Emergency Department of Queen Elizabeth Hospital. There he told the doctor that he received electric shock while at work and he felt pain in his right calf and both in the middle and lower part of his back and he felt as if his back was broken. However, in the first available hospital record dated 30th August 1992, it was recorded : "Sprained back when lifting heavy object at a construction site." This was put to the Plaintiff and he denied that he told the doctor that he had sprained his back. He denied that the information contained in that record had been supplied by him. He admitted that he was only accompanied by his son when he saw the doctor. He did not know who could have told the doctor that he had sprained his back when lifting a heavy object at a construction site. On 7th September 1992 the Plaintiff saw another doctor and the physiotherapy ward sheet recorded : "Back pain after lifting heavy weight on 28th August 1992." The Plaintiff denied that that was what he said to the doctor. It was then put to the Plaintiff that between 28th August 1992 and 7th September 1992 there were six clinical records made at the Queen Elizabeth Hospital relating to his condition at the time but none of them mentioned anything about an electric shock. The Plaintiff insisted that on 28th August 1992 he did tell the doctor that the injury arose from his receiving an electric shock. It was suggested to the Plaintiff that he never mentioned an electric shock to any of the doctors who saw him during that period, but the Plaintiff insisted that he did mention it. He did not know whether all of the doctors involved in preparing those documents had got it wrong. The records of 1st September 1992 mentioned : "History of sprained back recently"; that of 7th September 1992 recorded : "Back pain after lifting heavy object on 28th August 1992".

8. In relation to the Plaintiff's employee compensation claim, a Form II was filed by the employers and in that form, in the description of how the accident happened, it was recorded : "Injured in removing a steel member"; the description of the nature of the injury was : "A twist"; and the description of the part of the body injured was "The back spine." The Plaintiff denied that all that information was provided by him.

9. When the Plaintiff gave evidence the second time on the question of quantum, he was asked why the doctors had recorded that he sprained his back when lifting a heavy object. He testified that he did say that he suffered an electric shock when he lifted a heavy object. He explained that the object was the iron rod which he lifted in his hand. He insisted that he definitely mentioned to the doctor that he suffered an electric shock when he lifted a heavy object in his hand when he did the welding work.

The co-worker's evidence of how the accident happened

10. The co-worker, Mr Cheng Kit-choy, was called and he gave evidence that at the time of the incident he was squatting on the bridge frame and the Plaintiff was sitting astride the pipe and supporting the metal bar for him to do the welding. He confirmed that the Plaintiff was bending forward as he sat astride the pipe. He said he himself was holding the welding holder in one hand and the shield in the other and that when he had held that bar in position he started to weld it. When he started to weld it, the Plaintiff received the electric shock and he jerked upwards. Mr Cheng said he put down the tools. He sat there and he watched the Plaintiff. The Plaintiff said "I'm feeling very unwell." Mr Cheng looked at him and he found that the colour of his face had changed. The Plaintiff said he was in great discomfort. He took a rest there for 20 to 25 minutes. He said he felt very unwell. Mr Cheng asked him to sit there while he (Cheng) fetched a ladder and asked him to come down by the ladder slowly while he was assisting him.

11. Under cross-examination after the luncheon adjournment, he confirmed that he could not see the Plaintiff's hand when he started to weld, looking through the glass filter. He said that once he started to weld, once the sparks appeared, the Plaintiff jerked upwards then he realized something was wrong. He said the Plaintiff was opposite to him, face to face with him. The Plaintiff shouted. The Plaintiff said that he received an electric shock. Mr Cheng confirmed that he was not aware that anything had happened to the Plaintiff until he heard him shout. Mr Cheng said that the Plaintiff told him that he received an electric shock right at the time, immediately when it happened. It was put to him that in his statement he never mentioned that the Plaintiff shouted, but he insisted that the Plaintiff did shout. He said at the time he gave the statement, he did say the Plaintiff shouted, but he did not know whether or not the person who recorded the statement made a record of it. When it was put to him that in evidence-in-chief he only testified that the Plaintiff said that he was feeling very unwell, the witness insisted that he did say that the Plaintiff received an electric shock. The witness said that the Plaintiff shouted that he received the electric shock, he jerked and his hand was still supporting the I-beam. The witness then said that he helped the Plaintiff support the I-beam and he welded it to the catwalk immediately.

12. In re-examination he said he did not do any welding before the Plaintiff went off to see the doctor. He said the Plaintiff's hand was still supporting the I-beam, he helped the Plaintiff to support the I-beam with his hand, but he did not weld it immediately. He just did some tack-welding on the I-beam and also on the other part of the welding. He explained that tack-welding was welding which was not very secure. He was asked to demonstrate for how long he tack-welded and the demonstration showed that he did it for six seconds.

The Electrical evidence

13. The Plaintiff relied on the evidence of Mr James Ross, the Associate Director of the Industrial Centre of The Hong Kong Polytechnic University. Mr Ross' degree was in Metallurgy majoring in welding technology. He was engaged in the welding industry for over 20 years and at the Polytechnic University he was in charge of a training division which specialised in a group of materials and process technologies which included welding. He was allowed to give evidence as an expert.

14. Mr Ross gave evidence that the welding plant in question consisted of the transformer and the welding torch. The transformer was connected to the mains which gave it a primary voltage of 220V or 380V. The transformer lowered the input voltage and gave out a lower output voltage. Both Mr Ross and the defence expert, Professor Francis Chan, agreed that if the Plaintiff received an electric shock, it would have been from the output voltage of the transformer which it was agreed was in the region of 60 volts. The output side of the transformer consisted of two leads, a welding lead and a return lead. The welding lead was connected to the welding torch and the return lead was connected to the work piece which had to be welded. The purpose was to establish a complete circuit when the welding torch was struck on the work piece to which the return lead was attached. When the welding torch was struck on the work piece, the electricity current flowed from the output side of the transformer through the welding lead into the work piece and then through the return lead connected to the work piece back to the transformer. This proposition was not challenged by Mr Ross when he was cross-examined :

"In order to establish a circuit, you have effectively got to bring those two into contact, the end of the electrode with some part of the metal which is connected to the return beam. Until such time that you have got a circuit, you do not actually have any current flow."

The I-bar which was about to be welded by the Plaintiff and his co-worker had one end bolted to the concrete wall and the other end 2 mm away from the welding point.

15. The gist of Mr Ross' evidence was that the circuit which started in the transformer ended in earth through the Plaintiff's body. This was what he said in his first report which was produced in evidence :

"In manual metal arc welding in order to strike the arc the 'live' tip of the electrode is brought into contact with the work piece .... When the arc was initiated at the junction between the two metal parts (and a 3.2 mm electrode would easily bridge the 2 mm gap) or if struck in error on the I-bar that the Plaintiff was holding, the said I-bar would experience a large surge in potential. Since a gap existed between the two pieces of metal and the weld joint had not yet been created there was no ready pathway for current to flow back toward the welding return; nor could the potential be released via the other end of the I-bar which was bolted to the concrete wall, for concrete has very poor electrical conductivity. In the circumstances then, and in the absence of a proper earth connection, the welding current took the path of least resistance through the Plaintiff's body to the earth potential of the pipe, causing him to sustain severe electric shock and serious injury to his lower back."

In evidence-in-chief, Mr Ross said :

"Now, at the point when the accident occurred, the catwalk was almost complete. In fact, it was the very last section that was being welded on the morning of the accident. The probability is, since there was no separate welding arc and also since the welding return was badly positioned relative to the work piece the probability is that the plaintiff's co-worker touched the welding electrode directly to the work piece being held, thereby transferring the full open circuit potential to the work piece. Because there was a gap between the work piece and the main body of the catwalk, there was no low resistance return path that the welding current could take. And, therefore, the potential discharged itself via Mr Man's body .... But nevertheless, the potential of around, say, 70 volts or so, would be transferred to the work piece, and in unfavourable circumstances, a small current could flow through Mr Man's body, taking the easiest path to earth. In other words, the earth potential of the water pipe. The current could not discharge itself to the other end of the work piece which was connected to concrete."

The "unfavourable circumstances" were "high heat, high humidity, the sweat on Mr Man's skin, dark clothing, those kind of circumstances".

16. The defence called Professor Francis Chan, who held a PhD in Electrical Engineering and who was a professor in the Department of Electrical and Electronic Engineering in the University of Hong Kong. The gist of Professor Chan's evidence was that no electric current could flow unless there was a complete circuit, in other words the current has to return to the transformer. Professor Chan produced in Court a model with which he demonstrated in Court to show that when the electrode was struck on the metal wrapped with the return lead, electricity flowed, but when it was struck on the other metal which did not have the return lead, there was no electricity. Professor Chan said that the iron pipe that the Plaintiff was sitting on was earthed, and in relation to what might have happened, he said :

"If you assume the Plaintiff somehow is touching the small piece which is supplied by the welding rod and through his body down to the iron pipe which would then go down to earth potential, there is still no complete circuit and he would not have a current through him because the current that goes down to the earth has to come back here to complete the circuit."

Professor Chan therefore concluded that even if the Plaintiff, sitting on the iron pipe, was in contact with that iron pipe which was earthed, there would still not have been a complete circuit. The evidence was that the return lead was connected to that part of the catwalk which was already fixed. The essence of Professor Chan's evidence was therefore that unless there was contact between some part of the Plaintiff's body and some part of the metal for which there was a return lead, there was no floating circuit.

17. Under cross-examination, Professor Chan said that for electricity to flow, two things would be needed : first, a potential difference in the voltage and second, a complete circuit. Professor Chan said that an earth circuit was different from a floating circuit and even with an earth circuit, the current had to come back again from the earth back to the transformer before the circuit was completed. In the present case Professor Chan said there was no evidence to suggest that there was a circuit from the earth back to the source and therefore there remained only the possibility of a floating circuit.

18. The Plaintiff was granted leave to recall Mr Ross to reply to or deal with the matters raised by Professor Chan in his evidence. When Mr Ross was recalled he gave evidence of visiting the scene of the accident on 24th March 1999 and 17th May 1999. He also produced a report dated 24th March 1999 (exhibit P.4A). The gist of Mr Ross' evidence when he was recalled was, as it was described by the Defendants' Senior Counsel, a stray path theory, in other words an unforeseen accidental connection by a tool. The evidence he gave when he was recalled was intended to support the theory of a complete circuit through earth. In his report dated 24th March 1999, he claimed that such contact could be established by (a) inadvertent bridge formed by any discarded metal bar; (b) the contact between the flanges of the water pipe and the catwalk; (c) a conduit pipe running from the end of the bar that the Plaintiff was holding, alongside the water pipe back to the catwalk further away from the welding point. He also measured the electrical resistance between the catwalk and the pipe to support his observation of contact. The contact between the flanges of the water pipe and the catwalk mentioned in (b) above was shown to be non-existent by Professor Yung, instructed by the Defendants, when he gave evidence that he was able to put pieces of paper through between the flanges and the catwalk.

19. Mr Ross gave evidence that there were two ways in which the Plaintiff could still receive a shock : one, if another part of his body was in contact with the catwalk by becoming part of the general circuit; two, if the Plaintiff was sitting on a pipe which is earthed, the catwalk would be earthed in the normal course of events. He said that if the electrode then touched the loose piece to be welded, there would be a general circuit and current could flow. The current could go from the electrode to the loose piece through the Plaintiff's body to earth, then through earth, returning to the fixed piece of the catwalk then back to the welding return. He claimed that on 17th May 1999 at the site he discovered evidence to illustrate that a section of the electrical conduit pipe was in intimate contact with some part of the catwalk and that this conduit was already in place at the time of the accident. He said that the conduit was already there when the catwalk was built because the catwalk was raised 20 mm above the conduit. He claimed that that supported his scenario two above that the fixed work piece (part of the catwalk) must have been earthed. He therefore opined that the floating circuit as postulated by Professor Chan was no longer floating. What was happening at the time of the accident, according to Mr Ross, was no longer a floating circuit but a "grounded" circuit. Electricity flowed from a high potential to a low potential. The floating circuit might not be able to find a path to earth, but at the site there was a path in the two scenarios that he mentioned.

20. In support of his theory, Mr Ross had to rely on there being an entry and an exit point in the Plaintiff's body and the entry point was said to be the Plaintiff's hand and the exit point his right foot which, according to Mr Ross, was placed on the I-bar welded to the catwalk right next to the water pipe he was sitting on. The Plaintiff's bare skin had to be in touch with the metals that conducted electricity and the resistance of the gloves which the Plaintiff was wearing had to be reduced completely because of their wetness caused by perspiration in the Plaintiff's hands. There was, of course, no direct evidence of this from either the Plaintiff or his co-worker. Reference to it was made by Mr Ross in his reports :

first report -

"some parts of his damp skin must inevitably have been in intimate contact with the metal I-bar and the pipe";

second report -

"with his buttocks, thighs and abdomen all in intimate contact with the surface of the pipe";

"he held the metal in an underhand grip with his gloved right hand, his right palm in contact with the offside of the beam with his fingers clutching the underside";

"in this position there is every likelihood that his right wrist and the inner part of his bare right forearm came into direct contact with the work piece he was holding".

21. According to Mr Ross, the Plaintiff was wearing shoes with rubber soles. Rubber is a good insulator against electricity. There was just no evidence of where the Plaintiff's shoes were placed and whether the soles or the canvas materials of the shoes were in contact with the I-bar. There was also no evidence of whether the gloves that the Plaintiff wore were wet at all and if they were, how wet they were. Similarly, there was no evidence that any part or parts of the Plaintiff's body were in contact with the water pipe that he was sitting on or with the I-bar that he was holding.

22. Mr Ross also relied on the so-called earth to earth theory. He relied on the resistance readings of the catwalk, water pipe, the conduit pipe and the reinforcement bars to come to the conclusion that effectively all these metals were at earth. If they were, the electricity could have flown from the water pipe down to the earth and from earth back to the catwalk where the return was. The resistance readings taken by Mr Ross were figures obtained in 1999 - 7 years after the accident. There is just no evidence of what these figures would have been if they were taken at the time of the accident. That the water pipe could have served as an earth potential was seriously doubted by Dr Yung in his report produced in evidence.

23. The conduit pipe that Mr Ross discovered on his site visit on 17th May 1999 was in contact with both the I-bars. Therefore if current entered the I-bars which was being welded, the closest return path would have been across the electrical circuit and then back down the right hand I-bar to the return. That would have been the shortest route back to the transformer and if that was the shortest route, then that would have been the route that the current would select and it would not go through the Plaintiff's body. Mr Ross agreed with that proposition. That there was contact between the conduit pipes and the I-bars was established by Dr Yung in his report.

24. Dr Yung in his evidence said that the bituminous coating on the water pipe provided a high resistance of two to three M ohms which together with the minimal resistance from the Plaintiff's wet skin would permit only 0.0226 - 0.0337 mA passing through the Plaintiff. His evidence was that any current below 1 mA would be undetectable by human beings. Mr Ross in his evidence said that he found the coating to be patchy and was therefore unreliable as an insulator. This was ascertained by Mr Ross 7 years after the accident. The coating at the time of the accident would have been new and would have afforded high resistance to the electricity current. In addition, Professor Yung in his random measurement of the pipe at various spots where the Plaintiff should have been sitting recorded consistently high resistance readings.

Assessment of the evidence

25. I have considered all the evidence adduced in the trial, in particular that of the Plaintiff and his co-worker, the three electrical experts and that of the medical witnesses. I was able to observe the demeanour of all the witnesses who gave evidence and I take that into account as well. In relation to the evidence given by the Plaintiff and his co-worker, I make the following observations and findings :

1. The Plaintiff was evasive in his answers and quite often prevaricated or paused a fairly long while before answering, or in some instances, asking a question in answer to a question;

2. the Plaintiff was extremely evasive and non-committal about what happened in 1982 as a result of which he suffered low back pain and having seen a private doctor twice was then referred to Queen Elizabeth Hospital where a mylelogram was done on his back. The criteria for doing a mylelogram were agreed by all the medical witnesses and it is clear that the Orthopaedic Department of Queen Elizabeth Hospital would not have undertaken such an invasive procedure on a patient if there were not good reasons for doing it. Dr Savage, one of the Plaintiff's witnesses, said in his report dated 29th January 1999, in relation to the mylelogram,

"I do not know the indications in this man but the symptoms must have been significant."

The Plaintiff in his evidence said that one evening in 1982 he felt pain in his back and so he went to see a private doctor in Lam Tin. He said that the pain had started for no apparent cause. He said the pain prevented him from going to work so he went to see the doctor. He went back to see the doctor a second time because the pain recurred. He denied that he still had the pain when the mylelogram was done. He said that after he attended the private doctor, he did not suffer any particular pain. However, he was advised by the doctor to go to hospital for a special investigation so that he could find out why all of a sudden he suffered from pain. He said he subsequently went to Queen Elizabeth Hospital on three occasions, and on none of those occasions did he have any pain of the back. The Plaintiff claimed that after he had the mylelogram, he did not suffer from pain during the next 10 years. Mr Michael Smith, a specialist from Harley Street, who was called as a defence expert, gave evidence that looking at the history of the Plaintiff, he thought it likely that the process of degeneration (of the Plaintiff's back) started at the time of the accident in the early 1980s. He was also of the opinion that it was very surprising that the Plaintiff had no symptoms between 1982 and 1992. He pointed out the significance of the Plaintiff's manual work history and said :

"We know from medical literature that up to 80% of patients who have had a hospital admission with significant back pain will have a recurrence in the following year."

I find that the Plaintiff was not telling the whole truth about what had happened in 1982 and about whether he experienced any symptoms between 1982 and 1992.

3. After the accident occurred on 28th August 1992, and the Plaintiff went to the Accident and Emergency Department of the Queen Elizabeth Hospital, and thereafter in all encounters he had with doctors of the said hospital, it did not appear that he told any of them that he had received an electric shock on the day of the accident. In none of the available records of the hospital is there any reference to an electric shock. What the QE Orthopaedic Unit record on 30th August 1992 recorded was "HPI (history of present illness) : sprained back when lifting heavy object at construction site." The referral letter dated 28th August 1992 did not mention any cause of the Plaintiff's back problem; the A & E admission record did not refer to any cause of the Plaintiff's back problem (his condition was classified as orthopaedic under the non-traumatic category); the treatment sheet on 1st September 1992 referred to "history of sprained back recently". Dr Chan Tai Kin who made the record of the Orthopaedic Unit of 30th August 1992 gave evidence and confirmed the contents of that document. He also said that he would have made a record of all matters significant and relevant to the diagnosis. I find that that record accurately recorded what the doctor was told by the Plaintiff. I find also that the subsequent hospital records either recorded what the maker of the document was told by the Plaintiff or reproduced what appeared in the earlier records and that if on any occasion the Plaintiff had said he received an electric shock on the day of the accident, that would have been recorded. The record of 1st September 1992 recorded that the patient had been suffering low back pain for one week which working backwards, would take one not to 28th August, the day of the accident but to 26th August, two days before that.

4. In Dr David Cheng's, a medical expert called by the Plaintiff, report of 14th September 1994, it is recorded by Dr Cheng that the Plaintiff said that he had had an accident in 1982 and injured his back. I find that this was in fact what was said to Dr Cheng by the Plaintiff and I therefore find that this affects the credibility of the Plaintiff as a truthful witness.

5. Mr Smith's report of 30th July 1998 points out the discrepancies between the Plaintiff's complaints of sensory disturbance and the source of the medical problem. Dr John Silver, another medical expert called by the Plaintiff who gave evidence to the Court by video-link, conceded that the Plaintiff's pain did not conform to the accepted distribution.

6. Mr Smith demonstrated by reference to Waddell's Test (postulated by Dr Silver in his evidence and his report of 22nd March 1999) that the Plaintiff fell foul of five of the criteria which were designed to test the genuineness of a patient's complaints.

7. For the previous half month or so before the accident, the Plaintiff had been engaged in making a steel walkway running around three sides of the temple. The list of works produced in evidence where the Plaintiff had negotiated with the 1st Defendant the rates for work to be done showed that the bulk of those works were for welding work. The co-worker admitted that he and the Plaintiff had worked together on welding jobs for a number of years and that they had done a number of welding jobs in the same site where the catwalk was. The two of them had built the whole catwalk. In the face of all that evidence, the Plaintiff was still not prepared to admit he was a welder and insisted that he was only a metal worker. He said that to do metal work, just to have some ordinary knowledge or experience of welding was sufficient. He said he and his co-worker knew that there was danger in using an electrical welding machine, but insisted they were only metal workers and did not have the clothes which could guard against the risk of receiving electric shock. I find that the Plaintiff was deliberately playing down his experience as a welder so that no blame could attach to him for failing to take steps to prevent the accident from happening.

8. As regards where the exact spot was when the accident happened, there was a lot of confusion created which was caused partly by the inconsistent descriptions given by the Plaintiff and his co-worker. They were the only persons present at the scene and they had constructed the entire catwalk according to sketches and plans provided to them. A lot of confusion was created over whether there was one pipe or two pipes at the place of the accident or whether the catwalk was running directly over and above a concrete beam. The Plaintiff in his statement said that at the place of the accident, there were two pipes running along two long sides of the temple. The co-worker in his statement said there was only one pipe. The diagram in his statement showed one pipe and the pipe was twice referred to as a concrete pipe. The Plaintiff in his evidence at first confirmed the truth of his witness statements. When he was shown the two diagrams in his statement, the diagram in the co-worker's statement and the photographs of the scene attached to Mr Ross' first report (which were in fact photographs of the opposite end of the catwalk where the accident occurred), he did not say any of them was incorrect. He had at first said that concrete beams ran along all four sides of the temple; as the evidence progressed, he changed his evidence and said that the catwalk was not resting on top of the concrete.

After the Plaintiff had given evidence for the whole day, a site visit was made by the Court at the request of the parties. During the site visit, the Plaintiff said there was only one big pipe and not two pipes at the place where the accident occurred. In Court after the site visit, he reaffirmed that there was only one pipe at his left hand side sloping down towards and into the wall. On the following day, however, the Plaintiff denied what he had said the previous day and said it was the right hand side pipe that he was sitting on at the time. He also said that at the place of the accident, there were a number of pipes.

9. As regards the positions of the Plaintiff and his co-worker at the time of the accident, the Plaintiff in his statement had said that they both sat astride one of the pipes. He said he sat astride one of the pipes and his co-worker sat opposite him, also astride the pipe. He said they both had to use their legs to balance and cling onto the pipe. However, in his evidence, the Plaintiff said that the co-worker was squatting on the catwalk. In relation to the diagram attached to his statement, the Plaintiff at first said that it was not fully explained to him but later on in his evidence he said that the diagrams were not there when he signed his first statement.

10. The Plaintiff said that he had an ECG on the day of the accident when he attended the A & E department of Queen Elizabeth Hospital. This is mentioned in Dr David Cheng's first report, but there is no record of any ECG in any of the clinical notes of the hospital. The referral letter of 28th August 1992 refers to an X-ray but does not mention an ECG. The Plaintiff's case was that he had an ECG done on him because he told the doctor that he had received an electric shock. However, in his evidence, he could not describe the equipment used in the ECG and only said he was wired up after I had asked him if wires were attached to his limbs. He obviously knew the importance of having an ECG in the case of a person receiving an electric shock because he said in evidence "In my mind, since I suffered from electric shock so they wired me up to check". I find that this part of the Plaintiff's evidence is at least suspect.

11. The Plaintiff was clearly refusing to co-operate with the Occupational Therapist instructed by the defence when he attended the clinic on 8th June 1995. He had said to the two therapists that after he felt pain at the site he assisted his co-worker to finish the job. He did not try very hard the test of gripping of the hand, he complained hard grips gave him pain in the back. He refused to squat as requested. He was unwilling to stand on one leg as requested. He refused to use a ladder or to stand or walk on tiptoes. He would not stand or walk on heels. When he left the clinic, he walked slowly and rubbed his back; however, when he was on the road, he walked normally. That was the evidence of Mrs Shelley Chow which I accept. On 23rd and 30th August and 2nd September 1996, he attended at the clinic of the therapist instructed by his solicitors and he squatted as requested and he did the things that he was not prepared to do in 1995. During the site visit in April 1998, the Plaintiff was able to climb up the ladder which led to the area of the accident and was able to squat on the pipe for a fairly long period of time.

12. In the Plaintiff's statement, he said that he was dismissed from his job as a car park attendant when he presented his sick leave certificate for sick leave on 9th June 1995. He also gave evidence to the same effect. On this, he was contradicted by Mr Lee Kwok Cheung, the supervisor of the company, whose evidence I accept. Mr Lee gave evidence that the Plaintiff did not ask for leave but instead tendered his resignation to the company.

13. I find that when the Plaintiff said in his evidence that after he received the electric shock, his co-worker came and held the bar that the Plaintiff had been holding and the Plaintiff then released his hand and sat on the iron pipe for approximately half an hour before being assisted down by his co-worker, he was contradicted by his own statement that after he rested for 30 minutes, he and Cheng then finished off the work and then climbed down the structure.

14. I find that when the Plaintiff gave evidence the second time on the question of quantum, he knew he would be cross-examined on one of the hospital records recording a back pain after lifting heavy weight on 28th August 1992. He tried to get around that by saying that he did suffer an electric shock when he "Lifted a heavy object" and that the object was the iron rod which he lifted in his hand. The I-bar that the Plaintiff held on the day of the accident cannot, in my view, be described as a heavy object and when the Plaintiff held it up in his hand, he was certainly not "lifting" it. I find that answer by the Plaintiff most contrived and that it irreparably damaged his credibility as a truthful witness.

15. I find that the co-worker contradicted himself when he said in cross-examination, after the luncheon adjournment, and for the first time in his evidence, that the Plaintiff immediately after receiving the electric shock, shouted that he received an electric shock. In evidence-in-chief, he had said that after the incident, the Plaintiff said "I'm feeling very unwell" and after he (Cheng) looked at him and found the colour of his face had changed, the Plaintiff said he was in great discomfort. In Cheng's statement, he never mentioned that the Plaintiff shouted, but he insisted in Court that when he gave his statement, he did say that the Plaintiff shouted. When it was pointed out to him that in chief, he only said that the Plaintiff said that he was feeling unwell, Cheng insisted that he did say in chief that the Plaintiff received an electric shock.

16. The Plaintiff was most equivocal on the question of whether after he received the electric shock, he still did any work. When his statement was put to him where he had said "Then Cheng and I finished off the work and we climbed down the structure", he said "Not finished yet; incorrect." He was asked why he said that in his statement, and he said "Not all was finished completely or properly." He was asked if he finished off the work after he received the electric shock and before he went off to see a doctor. His answer was "No, I did not work, I did not." He was asked twice why he said that in his statement if it was not true, and on both occasions he just said "After I received electric shock, I took a rest and then I went down." When he was questioned about what happened when he went in 1995 to see the two occupational therapists employed by the defence, the following question was put to him :

"Before the assessment began, you were asked some questions and you told the ladies that after you felt the pain at the site, you assisted Cheng to finish the job then you got down by yourself."

and his answer was :

"Not completely finished the job."

17. The co-worker Cheng Kit-choy in cross-examination said that after the Plaintiff received the electric shock, he (Cheng) put down the shield then he supported the I-beam instead, and then he welded it to the metal. He said :

"He shouted, he received the electric shock, he shouted, he jerked and his hand was still supporting the I-beam and I helped him supporting the I-beam and I welded it to the catwalk immediately."

26. In re-examination, he said that he did not do any welding before the Plaintiff went off to see a doctor, but he did some tack-welding on that I-beam and also on the other part of the welding. He said :

"When Man Sai-kun was supporting the metal bar, I did the tack-welding ..... I helped him supporting the metal bar and then I did the tack-welding."

I find that the co-worker's evidence of what happened after the Plaintiff received the electric shock is at variance with the Plaintiff's evidence that after he received the shock, the co-worker came to hold the steel bar and he (Plaintiff) released his grip on the bar and took a rest.

27. In respect of the evidence relating to whether the Plaintiff did receive an electric shock, I make the following findings :

1. I find on a balance of probabilities that there was no complete circuit and therefore no electricity flowed at the time of the alleged accident. I prefer the evidence of Professor Chan and Professor Yung to that of Mr Ross. I do not accept the theories advanced by Mr Ross and the reasons relied on by him in support of those theories. I find that the Plaintiff did not receive an electric shock on the day of the accident as he claimed and I find that he did not on any occasion, mention to any doctor at Queen Elizabeth Hospital that he did receive such a shock. Even if there was a complete circuit, I further accept the evidence, which was accepted by Mr Ross that the current would have bypassed the Plaintiff's body because of the presence of the conduit pipe.

2. In making the above finding, I have had regard to the medical evidence adduced during the trial. Dr Cheng agreed that a very simple movement of the "wrong category" could trigger symptoms in a previously symptom-free degenerative back. That movement could be from bending and weight sometimes may not play that important a role. Mr Smith also made the point that a symptom-free degenerate back could suddenly develop symptoms without trauma, especially when such symptoms had surfaced previously.

Conclusion

28. Taking into account the observations/findings I made in respect of the Plaintiff's evidence and that of his co-worker and those that I made in respect of the evidence relating to whether the Plaintiff did receive an electric shock, the conclusion I come to is that the Plaintiff has failed to discharge the burden of proof on him of proving that at the time of the alleged incident, he did receive an electric shock. The Plaintiff's claim is therefore dismissed with costs, to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

29. In the event that I am wrong in my finding on liability, I now proceed to make findings on quantum of damages, as follows :

A. Damages Claimed Until Trial

1.	Loss of Earnings until issue of Writ (23rd August 1995)

	Accident earnings, including overtime :	$15,000.00 per month
	Projected but for the accident earnings :	$20,800.00 per month

		Median wage : $17,900.00 per month
		$17,900.00 x 36 months	$644,400.00
		Less earnings as carpark attendant	$13,200.00
			$631,200.00

2.	Loss of Earnings from Writ to Trial

	(a)	Period of total loss
		(Sick Leave until 17th October 1996)
		$17,900.00 x 12.86 months	$230,194.00
	(b)	Period of partial loss
		(18th October 1996 to 31st May 1999)
		$17,900.00 - $5,200.00 x 31.58 months	$401,066.00
		Total of earnings loss to trial	$1,262,408.00

3.	Medical Expenses

	(a)	Hong Kong Hospital treatment	$8,223.00
	(b)	Further Hong Kong Hospital treatment	$1,232.00
		Total	$9,455.00

4.	Travelling Expenses

	(a)	Family members	$2,000.00
	(b)	Follow up and physiotherapy in Hong Kong	$7,010.00
		Total	$9,010.00

5.	Special Foods	$5,000.00
	Total of Expenses in 3 to 5 above	$23,465.00
	Total of Pretrial Losses and Expenses	$1,285,873.00

B. Future Losses and Pain, Suffering and Loss of Amenity

1.	Loss of Future Earnings
	The Plaintiff is now 49 years old. But for the accident he would now be earning $20,800.00 per month. He is capable of earning as a watchman $7,500.00 per month. The appropriate multiplier is seven.

	$20,800.00 - $7,500.00 x 84 =	$1,117,200.00
2.	Pain, Suffering and Loss of Amenity	$248,857.00
	Total of future losses and PSLA	$1,366,057.00
	The Plaintiff gives credit for Employee's Compensation of	$286,500.00

30. Interest will accrue at an average rate of 6% on special damages from accident to judgment and 2% on PSLA from writ to judgment. On the total claim interest will accrue at the judgment rate until payment.