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HCPI 808/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 808 OF 2012
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| BETWEEN |
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YEUNG CHEUNG CHUN |
Plaintiff |
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and |
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WING SHING CAISSON & FOUNDATION LIMITED |
1st Defendant |
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HIP HING CONSTRUCTION COMPANY LIMITED |
2nd Defendant |
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| Before: Deputy High Court Judge Burrell in Court |
| Dates of Hearing: 14, 15 and 19 January 2015 |
| Date of Judgment: 30 January 2015 |
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J U D G M E N T
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1. On 28 October 2009, Yeung Cheung Chun (“the plaintiff”), whilst carrying out his duties as a construction site worker when employed by the 1st defendant, slipped and fell and thereby sustained a fractured left wrist as he attempted to break his fall.
2. The plaintiff, who was 36 at the time of the accident, had only been employed by the 1st defendant for about four months when he fell. For the first three of those four months he had been a probationary construction labourer. His previous 20 years of working in Hong Kong had been in the textile industry. This is of some relevance because a little over two years after his fall the plaintiff decided to leave the construction industry and return to the textile industry. Much of those two years was spent on sick leave. The consequence of his decision to resign his employment with the 1st defendant, in December 2011, is significant and is considered in more detail below.
3. In these proceedings the plaintiff claims damages against the defendants (the 1st defendant being a sub‑contractor of the 2nd defendant) for pain, suffering and loss of amenity, loss of earnings up to the date of trial and up to a further 17 years thereafter plus damages for loss of future earning capacity, special damages and interest. Credit is given for EC Compensation (“ECC”) in the sum of $268,478.
4. The defendants deny liability for the accident. If found to be liable, either wholly or in part, they submit that the plaintiff’s claim for any loss after the end of his sick leave is nil due to the facts that he decided to leave the 1st defendant’s employment voluntarily, he was fit and able to perform the work that had been assigned to him (which were lighter duties than his pre‑accident work) and he was earning more than he was in October 2009.
5. Mr Charles TC Wong appeared as counsel for the plaintiff; Mr Victor Gidwani and Ms Jenny Ngai were the defendants’ counsel. The plaintiff’s total maximum claim amounts to $6,197,669; Mr Gidwani submits that even on a full liability basis nothing is due to the plaintiff after credit is given for the ECC payment.
THE ACCIDENT
6. Nobody saw the plaintiff slip. The circumstances of the fall are entirely factual issues. The evidence of it comes from the plaintiff’s own testimony, a recorded interview he had with his employer a few weeks later and a very rough sketch drawn by the plaintiff himself some time afterwards (Exh P1). There was no agreed plan of the site and no photographs of the place he fell. It is possible that the absence of contemporaneous plans and photographs is because, at the time, it was considered to be a minor incident.
7. It was agreed that the site was very muddy. It was also littered with plant and machinery. Water was constantly being sprayed on the ground to keep down the dust.
8. The plaintiff was working at a spot in the centre of the site. It became necessary for him to walk to the periphery of the site to collect a gas cylinder. There was an elevated concrete path running along the periphery of the site.
9. However, the most direct route to his intended destination, which was about 20 to 30 metres away situated on the edge of the site, was along some steel iBeams which had been laid on the muddy ground.
LIABILITY
10. The iBeams were so laid (in the direction of his intended destination) that they provided a pathway above the muddy surface of the site. According to the plaintiff’s testimony and his markings on his sketch, P1, in order to use the elevated concrete pathway he would, first, have had to walk in the opposite direction and then turn left on the concrete path which took a semi‑circular sweep around the boundary of the site. Such a journey was considerably longer than the short‑cut he chose, as Exh P1 demonstrates.
11. There is no doubt that the elevated concrete path provided a safer route to collect the gas cylinder. However, I found that the plaintiff’s choice of using the iBeams as a pathway was understandable and reasonable for the following reasons. Firstly, it was a considerably shorter distance. Secondly, he had used it as a pathway many times before without incident. Thirdly, other workers and some of his superiors had also chosen to walk along the iBeams in order to avoid the mud. Fourthly, I found that he had not been discouraged, or warned or forbidden from using the iBeams prior to the accident.
12. In submitting that no liability should fall on the 1st defendant, Mr Gidwani pointed out that it was inevitable that the iBeams would be wet along with the rest of the site, as a result of sprayed water. Therefore, no blame should attach to the 1st defendant if the plaintiff chose an unsafe short‑cut instead of a known, safe (albeit longer) concrete path.
13. I also find that the plaintiff slipped because of wetness and unsuitability of the surface of the iBeams as a walkway. At the time the plaintiff said he was unaware of the cause of his fall. This is not particularly surprising. Mr Gidwani relies on an interview he had (of which a written record was made) about two weeks later. The main reason given in that record was the plaintiff’s haste rather than the condition of the iBeams. However, there is later reference in the statement to the muddy surface and, moreover, it is logical to conclude that if the iBeams were in general use, as I find they were, they would become muddy and slippery from the boots of other workers.
14. Mr Wong, for the plaintiff, makes the additional and valid point that the 1st defendant could have done more to make the work place safe. They could have provided wooden planks as temporary walkways across the mud. It is true that such wooden planks would themselves have got wet and muddy but it would have been better than walking through several inches of mud. Even a few inches of mud, as conceded by the defence evidence, constitutes a “muddy” and therefore slippery surface. The 1st defendant also could have put up notices saying that the concrete path should always be used when walking around the site and could have put up notices or barriers preventing the use of the iBeams as access. But they did not. On the contrary, the key finding which renders the 1st defendant’s liable is that they allowed the plaintiff and other workers to use the iBeams as a passageway which was unsafe. A stack of iBeams placed randomly on the ground is prima facie unsafe. Different sides of the iBeams may be uppermost, they may be liable to movement when trodden on, there may be gaps between them and they may be uneven. Whilst such details were not specifically canvassed in evidence, it is nonetheless common sense in view of the fact that the iBeams were placed on the ground for the purpose of storage and not to create a walkway.
15. As already referred to, other workers had used the iBeams as a passageway for some time (probably since they had been put there). The evidence, which I accept, suggested the practice had been on‑going for about a month prior to the plaintiff’s fall. It was the duty of the employer to remedy this situation which they did not do.
16. Lord Reid in General Cleaning Contractors Ltd v Christmas [1953] AC 180 said:
“Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required”.
17. Mr Gidwani has provided a number of other cases where workmen have fallen and injured themselves. Such cases can provide some assistance and guidance by way of comparison. However, they all turn on their own facts and all apply basic and general principles to their own facts. Likewise in the present case.
18. Having thus established on the evidence that the 1st defendant had failed to provide a sufficiently safe system or place of work I consider it unnecessary to make further findings in relation to the defendants’ duties as an occupier or in relation to breaches of statutory duty pursuant to the Occupational Safety and Health Ordinance and Regulations (Cap 509). More so because I find this not to be a case where contributory negligence applies, a matter to which I now briefly turn.
CONTRIBUTORY NEGLIGENCE
19. Mr Gidwani submits that the plaintiff’s choice in ignoring the concrete path and taking the short‑cut amounts to contributory negligence of at least 40%. He further submits that the plaintiff should have been more careful in the circumstances and should have put his own safety ahead of his own convenience.
20. In my judgment the contributory negligence in this case is nil. Other than choosing the short‑cut, the plaintiff did nothing out of the ordinary. He walked normally, he was carrying out his duties in daylight and wearing appropriate footwear for his job. As his choice of the short‑cut was not a one‑off by this particular plaintiff and as there was sufficient evidence in support of a month’s prior use by fellow workmen and senior staff, I see nothing in the plaintiff’s conduct which could constitute contributory negligence. In the same case as cited above (“General Cleaning”), Lord Denning said:
“You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened.”
21. In short, in the circumstances of this case, no blame should attach to a man doing his job even where that involved choosing a less safe route than was otherwise available where that choice had been relatively commonplace and impliedly condoned by conduct. The fact that the unsafe choice was available to him forms the basis of the plaintiff’s case.
CREDIBILITY
22. Before turning to the crucial and key issue of quantum, I make this observation on the question of credibility. The only oral testimony for the plaintiff was from himself. I felt able to rely on his evidence in some respects but not in others. The two most important disputed issues in the case turned out to be (a) his chosen route to collect the gas cylinder and (b) the reasons for resigning his job in December 2011. I relied on his evidence concerning (a) but not (b). It is not unusual for a witness to be impressive on some matters but not on others. The plaintiff, I found to be a classic example.
23. His evidence on (a) has resulted in a finding in his favour on liability. However, I was not able to find in his favour on matters surrounding issue (b) which seriously impacted on his entitlement to damages (particularly future loss) to which I now turn.
QUANTUM
(i) Pain suffering and loss of amenity (PSLA)
24. It was agreed that the plaintiff suffered a fracture of the distal radius of the left wrist. He is right handed. He was discharged from hospital the same day after a plaster cast had been applied. This was removed five weeks later on 3 December 2009. Subsequent physiotherapy and occupational therapy was largely successful and the two orthopaedic experts (Dr Lam for the defence and Dr Fu for the plaintiff) were able to agree on a number of matters.
25. They agreed that the fracture had healed in “good bony alignment” and the plaintiff had reached “maximal medical improvement”. There was residual mild weakness in the left arm and slight muscle wasting resulting in “mild permanent adverse effect” in his daily activities.
26. The doctors agreed that 395 days of continuous sick leave was reasonable. Prior to returning to work on 26 November 2010 the plaintiff complained of moderate level of pain which caused some difficulty with his day to day activities.
27. The final pre‑trial assessment was done in April 2012.
28. Dr Lam described the bony alignment as “excellent”. He doubted the plaintiff’s claim of a 40% deterioration suggesting it was not genuine. He felt it was inconsistent with his otherwise stable recovery progress and was not supported by contemporaneous clinical records.
29. Dr Fu considered that residual pain, weakness and stiffness was “as expected” and there was a risk of osteo‑arthritis in the future.
30. For these injuries Mr Wong seeks compensation for PSLA in the sum of $300,000. Mr Gidwani submits that a maximum of $180,000 should be awarded. Both counsel produced case reports of other wrist injuries for the purposes of comparison. I need not refer to them individually. They have provided the court with some assistance in concluding that this injury, which was a relatively mild example of its type, merits an award of $200,000.
Loss of earnings
(a) Sick leave
31. The first period of sick leave (395 days) is agreed by the expert doctors. The court is not bound to follow this period but in this case I see no reason not to. The defence accepts that his pre‑accident average earnings were $15,280 per month. Including MPF payments this produces a figure of $211,246 for the agreed period of sick leave.
32. Later intermittent sick leave (a total of 92 days) between 27 November 2010 and 8 June 2011 is challenged by the 1st defendant. The doctors also do not agree. Balancing the plaintiff’s own evidence about his discomfort and reasons for this sick leave and Dr Fu’s opinion on the one hand and Dr Lam’s assessment on the other, I consider this to be a situation that some of the leave was, on balance, acceptable but not all of it. The plaintiff’s claim for the extra 92 days sick leave is a further $49,201. He should be awarded half this sum $24,600.
(b) From 8 June 2011 to resignation in December2011 (effective from 31 January 2012) and thereafter
33. Two factual matters require consideration hereafter, before making calculations. They are:
(1) the extent, if any, to which the plaintiff was financially disadvantaged as a result of the accident; and
(2) his reasons for resigning in December 2011.
34. Regarding (1) above, I am satisfied that this employer treated the plaintiff well and fairly following his return to work. It was accepted that some aspects of his pre‑injury work put a strain on his left wrist which he found painful to cope with. He was given lighter duties without any deduction in pay, although overtime opportunities may have reduced as a result. He also received a pay rise during this period. I do not accept the suggestions from the plaintiff that even these lighter duties were sometimes too difficult for him. Having considered the testimony from both sides I am satisfied that the work scenario from 8 June 2011 can be described in the following straightforward way. He was not expected to do some of the heavy labour that he had done before the accident; he was given manageable lighter duties; the 1st defendant was willing to keep the same pay level which they would have continued to do had he not retired; his job was not in jeopardy and his future employment was secure.
35. However, he was nonetheless slightly worse off in his revised job than he would have been had there been no accident and had he stayed in the construction industry.
36. To assess this loss Mr Wong has pointed to the relative earnings of two fellow workers who did the same job as the plaintiff before the accident and were still so employed at the time he returned to work. In simple terms the plaintiff earned $17,627 when he resigned, the average wage of the two comparable workers was $21,094 at the same time. Mr Gidwani submits that a number of other factors should be taken into account which would reveal that in fact there was no loss whereas Mr Wong submits that the above figures are merely a starting point and the true realistic figure is in fact higher. In my judgment the safest, fairest and most logical approach is to stick with the starting figures without adjustments up or down. In round terms he found himself $3,500 a month worse off because of the accident.
37. Regarding (2) above, the least impressive part of the plaintiff’s evidence concerned his reasons for resigning in December 2011. In brief he contended that it was due to a combination of factors. These were that he felt uncomfortable being paid the same as general labourers when only carrying out lighter duties, he found that his wrist was painful when carrying out some of those duties and he received unfair treatment (such as being teased, humiliated and cold‑shouldered) by fellow workers who were performing more arduous work than he for the same or similar pay.
38. On the other hand the defence evidence suggested that he was not happy in the construction industry, he preferred the textile industry where he had worked for the first 20 years of his working life since coming to Hong Kong. He believed that he would earn as much or more by returning to the textile industry. Moreover, the defence submit that it was at least suspicious that he left at about the time his compensation claims began and had he remained with the 1st defendant his future loss claim would have been minimal due to the generous treatment he had received from them. I also accepted the evidence from his foreman at the material time that he told the plaintiff that his job would still be available for him in the future should he wish to return. Whilst it is true that his foreman may not have had the authority to say this, he would have carried some influence should the matter have arisen in the future and, in any event, it illustrates the 1st defendant’s good will towards the plaintiff.
39. In support of the submission that the plaintiff was justified in leaving when he did due to “humiliation and harassment” Mr Wong cited the case of Wigan Borough Council v Davies [1979] IRLR 127. The facts of the harassment in that case were very much more serious than the plaintiff’s allegations in the present case. Other than recognizing a ground for constructive dismissal it is of little assistance.
40. In any event, I find the plaintiff’s evidence on the issue to be exaggerated. He may not have been enjoying his new role and may not have been enjoying the company of his fellow workmen but I accept that the dominant reason for his resignation was a desire to return to the textile industry and forego a future in the construction industry. It is noteworthy that in June 2012 his Construction Workers Registration Card expired and he did not renew it.
41. As things turned out his earnings after February 2012 dropped significantly. He worked for a number of employers in both the textile industry and the restaurant business. Details are unnecessary. Suffice it to say that Mr Wong’s “best scenario” calculation is based on a monthly loss in the region of $20,000 and further argues that the plaintiff could have continued, but for his “constructive dismissal” up to the age of 65. The total claim on this basis comes to $6,466,147.
42. It should be said forthwith that this assessment and this “best” scenario is wholly unrealistic. Bearing in mind the plaintiff had worked in the industry for four months (less than 2% of his working life), suffered a relatively minor injury which healed well and was treated with fairness by his employer thereafter, it is fanciful to think that such a large sum is the proper level of damages.
43. Mr Wong has helpfully submitted two further scenarios, each with figures for retirement at 60 or 65. The second scenario is that the plaintiff worked for the 1st defendant for three more years after his return to full time work. The third is based on a court finding that his resignation was unreasonable.
44. All three scenarios calculate a figure with a multiplier for future loss of earnings up to either 60 or 65. Mr Gidwani on the other hand submits that if the court finds his reason for resignation is unreasonable then there is no future loss claim. He chose to leave, he could have stayed, he took a chance on his future earnings but it did not work out. There can be no liability on the 1st defendant in these circumstances.
(c) The court’s approach
45. The facts of this case, particularly regarding the plaintiff’s voluntary resignation, are unusual. In consequence, in order to reach a reasonable assessment the court has not adopted a conventional approach. It is fair to say that the plaintiff’s negative attitude to his work was, in part, due to his accident. Had he not sustained his injury it is more likely than not that he would have stayed in the industry longer than he did. The question is how much longer?
46. In the unusual circumstances of this case I consider the fair approach is to assess the likely length of his employment had he not been injured. After the expiration of that theoretical period the 1st defendant’s liability should stop. Assessing such a period is not entirely guesswork. Factors to be taken into account would be the plaintiff’s previous employment history, his age, his experience in the job, his demeanour as a witness and the average length of time comparable workers had worked for the 1st defendant. Evidence in answer to the final factor suggests a period of about three years.
47. In my judgment a fair calculation of damages would be based on the plaintiff’s suffering a monthly shortfall in wages of $4,000 for a period of four years from his resumption of full time work in June 2011: a total of $192,000. I have allowed a slight increase from the monthly figure of $3,500 in paragraph 36, supra, to allow for a modest widening of the difference over the ensuing years.
(iii) Loss of future earning capacity
48. Mr Wong invites the court to award $100,000 under this head. Again, I find this to be an over optimistic assessment.
49. I think the injury will have had a slight impact on his position in the labour market. The fact that he has had frequent changes of jobs since February 2012 may provide some support for this assessment. Both doctors opined that there was minor permanent impairment of the upper extremity. Dr Lam said 2%, Dr Fu said 4%.
50. $40,000 should be awarded under this heading.
(iv) Special damages
51. $7,000 is claimed. $5,000 is allowed.
(v) Interest
52. I invite the parties to calculate and agree the appropriate interest due on the court’s findings which are as follows:
| (a) |
PSLA |
$200,000 |
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| (b) |
Sick leave |
$235,846 |
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| (c) |
Loss of earnings |
$192,000 |
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| (d) |
Loss of future earning capacity |
$40,000 |
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| (e) |
Special damages |
$5,000 |
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$672,846 |
plus interest |
53. Minor differences between the parties on the calculation of interest should be resolved with common sense and costs savings in mind. The parties should be slow to return to court for a resolution of such differences.
54. The sum therefore due to the plaintiff is $672,846 plus interest less ECC of $268,478. There will be judgment to the plaintiff in such a sum.
COSTS
55. I make a costs order nisi in the plaintiff’s favour, to be taxed if not agreed, in accordance with Legal Aid Regulations.
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(M P Burrell)
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Deputy Judge of the Court of First Instance |
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High Court |
Mr Charles TC Wong, instructed by K Y Woo & Co, assigned by Director of Legal Aid, for the plaintiff
Mr Victor Gidwani & Ms Jenny Ngai, instructed by Tsui & Co, for the 1st and 2nd defendants
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