CHAN CHUNG CHUEN v. W. HING CONSTRUCTION CO LTD AND ANOTHER

HCPI 941/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 941 OF 2005

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D E C I S I O N

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1.  This is an application by the plaintiff under section 30 of the Limitation Ordinance, Cap. 347 to disapply the three-year limitation period stipulated under section 27 of the same ordinance.  The plaintiff was a casual worker employed by the 2nd defendant to work in a hotel.  The 2nd defendant was the subcontractor of the 1st defendant.

2.  On 3 January 2002, the plaintiff and his co-workers were carrying a heavy bathtub from the 15th floor of the hotel to the basement.  The plaintiff said that he had three co-workers for the task but the defendants said that he had five.  When the tub was delivered to the ground floor, they found that the cargo lift or what the defendant called the hydraulic platform, which was for delivering articles from the ground floor to the basement, was out of service.  They then carried the tub by their hands down a narrow and steep staircase on the side of the platform.  The plaintiff was one of those who carried the tub at the lower end.  One of the workers had a slip and the heavy tub slipped downwards.  It then crushed the plaintiff’s left index finger against an I-beam installed at the end of the stairs. 

3.  The plaintiff was immediately taken to Queen Elizabeth Hospital.  He had gone through altogether three operations and had been given sick leave until 5 December 2002.  A medical report by Dr Fong Sin-tak, senior medical officer of the Department of Orthopaedics and Traumatology of Queen Elizabeth Hospital, dated 11 November 2005 stated the following:

“The above gentleman was admitted to our hospital on 3 January 2002 after a crush injury to his left index finger.  Physical examination revealed pulp loss with bone and flexor tendon exposure over his left index finger.  Operation with debridement of wound and reattachment of defected pulp skin was performed on 4 January 2002.  Post-operatively uneventful, he was discharged home on 7 January 2002.  He had regular follow-ups in our specialty clinic.  There was gangrene over left index finger pulp.  Operation with debridement and cross finger flap was suggested on 6 February 2002, but patient did not want operation at that time due to some family issue.  He later agreed for operation, and he was admitted into our hospital on 28 February 2002.  Operation was performed on the same day and he was discharged home.  Another operation for insetting of the flap was performed on 14 March 2002.  He had regular follow-up in our specialty clinic.  There was some partial necrosis of the flap, and the wound healed after dressing.  He was referred to physiotherapist for rehabilitation.  There was stiffness, persistent numbness and hyperesthesia over his left index finger, and he could not resume duty.  He was last seen on 5 December 2005, the condition was similar, and he was referred to the medical assessment board.”

4.  The plaintiff then attended medical assessment on 22 January 2003 for the purpose of employee’s compensation.  On 5 February 2003, the assessment board assessed that he had suffered from crushed left index finger resulting in tip loss, ankylosis of distal interphalangeal joint and scarring of doner sites.  The board also assessed his sick leave as from 3 January 2002 to 5 December 2002 and his permanent loss of earning capacity at 7.5%. 

5.  He was not satisfied with the assessment and applied for a review.  On 19 February 2003, the assessment board reviewed the assessment and increased the permanent loss of earning capacity to 8.5%. 

6.  On 29 July 2003, the Commissioner for Labour certified for him the total amount of employee’s compensation at $250,796.  He received from the 1st defendant the balance of the compensation at $140,635 on the same day.  No lawyer was involved in the processing of his employee’s compensation.  The Commissioner for Labour did all the work.

7.  In January 2004, he returned to Fujian province where his family was residing.  He came back here in August 2005.  On 14 September 2005, he consulted a solicitor on his common law rights.  He then applied for legal aid.  A writ was issued for him on 14 October 2005 for damages for personal injuries.

8.  He claimed against the 1st and 2nd defendants for negligence and breach of statutory duties.  The particulars of negligence included failure to provide him with any or any adequate training, failing to give him any or any adequate instructions on how to carry out the work, failure to give him any or adequate supervision, and failure to provide him with any or adequate equipment. 

9.  The defendants in their joint defence denied any negligence or breach of statutory duty.  They further alleged that the plaintiff was contributorily negligent.  The particulars included failure to report to the defendants that the cargo lift or platform was out of service, failing to obtain further instructions from the defendants after noticing that the platform was out of service, failing to break the unwanted bathtub into smaller pieces for removal purpose, carrying the tub with bare hands, failing to seek help from other workers before carrying the tub down the staircase, and failing to take sufficient precaution for his own safety or failure to pay heed to his own safety generally.

10.  The defendants also pleaded that this claim has been barred by section 27 of the Limitation Ordinance; hence, the plaintiff made this application.

11.  The plaintiff filed an affirmation on 30 March 2006 to support this application.  He said he was educated to junior secondary level in the Mainland.  He then worked as a construction worker.  He came to Hong Kong in 1995 and worked in installing air-conditioning systems.  In 1999, he changed to work for a ganger, one Mr Hung.  In December 2001, Mr Hung told him to work in the hotel.  He then became employed by the 2nd defendant and worked under the direction of Hung.

12.  The 15th and 16th floors of the hotel were then being decorated.  He and his fellow workers were to clear the construction/decoration debris.  On 3 January 2002, at about 3.10 pm, he was instructed to transport an unwanted metal bathtub from the 15th floor to the basement.  The tub weighed about 400 pounds and was of 3 feet wide by 6 feet long.  The rest of the incident leading to his injury has been referred to above.

13.  After he was sent to the hospital, Mr Hung went to see him and told him that the security department of the 1st defendant had been to the scene of the accident to take photographs and to investigate into the matter.  Mr Hung also told him that the accident had been reported to the Labour Department.

14.  On his return to Fujian province, he said that he at once looked for medical treatment for his left index finger from the Second Affiliated Hospital of Fujian Medical University.  He said he received intensive treatment there which ended in March 2005.  He also said in a second affirmation filed on 25 May 2006 that he had to stay in Fujian province to attend to the regular follow-up treatments.  He further said that he was advised by the doctors to stay in Fujian to see whether he would respond to the medicine and treatments prescribed by them, and if there was any problem, he could immediately go to consult them in the hospital to change or adjust the treatment.  Thus, he could not come back to Hong Kong.

15.  However, the medical record from the Fujian hospital as produced by him did not support what he said.  The record showed that he had only been to the hospital on 20 January 2004, 3 March 2004, 15 March 2004, 21 July 2004, 17 November 2004, 15 January 2005 and 3 March 2005.  On each occasion, he was only given some medicine and there was no surgery. 

16.  I cannot see any reason why the doctors should have asked him to stay in Fujian and not to come back to Hong Kong.  I am not inclined to accept this bare assertion.  I think the more likely reason for him to have stayed in Fujian province was because his family was there. 

17.  He further said in his affirmation that he came back here in August 2005 and heard from his friends that in addition to employees’ compensation, he had a common law right to claim compensation.  He then consulted a solicitor in early September and then applied for legal aid.  Legal aid was granted to him on 4 November 2005.  An orthopaedic expert, Dr Au Ka-kau, then examined him on 5 January 2006 as arranged by his solicitors. 

18.  Dr Au provided an assessment report dated 2 February 2006.  The report referred to his previous employment as a construction worker and the tasks in his job and that he had not resumed the job because of pain and impaired sensation of his left index finger.  He is left-handed.  The report also said that he had received 47 sessions of physiotherapy and his condition became static and he was discharged on 10 October 2002 from physiotherapy.  This further shows that there was no need for him to have stayed in Fujian province on medical ground.

19.  He complained to Dr Au of index finger pain for seven to eight hours a day which was particularly severe at night.  The pain woke him up two nights per week.  There was also stiffness of this finger and loss of sensation of the pulp.  He said he was in a low mood after the injury.  He also complained of difficulty in using chopsticks or spoons to feed himself.

20.  Dr Au found that the pulp of the left index finger was slightly colder than the right side.  Left index finger had limitation on its movement.  Its nail was deformed.  The left hand grip was weaker than the right, and there was loss of sensation over the distal segment of the left index finger.  Dr Au opined that the plaintiff had received the appropriate treatment and there would be no further improvement.  The impairment would be permanent.  Dr Au concluded that the plaintiff was fit to return to his previous job as a general labourer in construction sites but with reduced efficiency.  Dr Au also endorsed the sick leave as assessed by the medical assessment board and did not recommend any further sick leave.

21.  The defendants filed two affirmations to oppose this application.  The first affirmation was by one Chan Sui-tong, a site agent of the 2nd defendant.  He said he would go to the hotel to inspect and supervise the workers once every morning.  On 3 January 2002, he was informed by the foreman that one of the workers had been injured when removing a bathtub and had been sent to the hospital.  He knew that the accident had been reported to the safety officer of the 1st defendant; hence, the 2nd defendant did not do any investigation or take any statement from any witness.  The foreman had also left the 2nd defendant’s employ. 

22.  Mr Chan further said that due to the time lapse and the casual employment nature, the 2nd defendant would have difficulty in contacting the plaintiff’s then fellow workers.  He also said that even if the 2nd defendant could locate these general workers who were working with the plaintiff at the material time, their memories might have faded with time. 

23.  From these statements of Mr Chan, it seems that the 2nd defendant had made no attempt to locate those who were present at the scene of the accident.

24.  On the happening of the accident, Mr Chan said that since the hydraulic platform had been out of service for two days prior to the accident, he had not instructed any worker to remove the bathtub.  He also said that he had given the workers, including the plaintiff, a safety briefing before they started working at the hotel and all workers had been provided with gloves and tools.  The plaintiff and his fellow workers could have broken the bathtub into smaller pieces or sought instructions from the foreman on what to do.

25.  The other affirmation was made by the safety officer of the 1st defendant.  He said he went to the hotel to investigate the accident after it was reported to him.  He was told by the plaintiff’s two fellow workers about the accident.  He referred to their names.  He then took photographs of the scene and of the bathtub in question.  He then asked a fellow employee to prepare an accident report for reporting the matter to the Labour Department. 

26.  After the plaintiff was discharged from hospital, he also obtained confirmation from the plaintiff on the circumstances of the accident as already provided by his two co-workers referred to above.  He then prepared an accident investigation report dated 14 January 2002.  He did not regard the accident as serious and did not take any statement from the plaintiff’s co-workers or conduct any further detail investigation. 

27.  The 1st defendant also made no attempt to locate the co-workers who were present at the accident. 

28.  The accident report referred to the circumstances of the accident and contained the recommendations of the safety officers as follows:

“	Circumstances
	At the abovementioned time, the injured was assigned to move the bathtubs from the 15th floor to the rubbish container on B1.  The bathtubs, usually, were transported by a hydraulic platform from the working floor to the car park floor (both on B1).  But on the day of accident, this hydraulic platform was out of order and the injured accompanied with five other workers transported the bathtub through the metal staircase aside.  They, totally six of them, were divided into two groups, three of them positioned on the upward side of the bathtub and the others (include the injured) positioned on the downward side.  While they were moving along the staircase, suddenly one of them got a slip and made the bathtub fell down along the staircase.  Consequently, the injured’s left index finger, which was grasping on the edge of the bathtub, was entangled in between the bathtub and the I-beam aside.  As a result, his left index finger tip was being amputated.  He was accompanied to the hospital by a taxi for treatment.  He stayed in the hospital until 8-1-2002.
	Recommendation
	1.	Suspend the transport work until the hydraulic platform is repaired.  The bathtub should be temporarily stored in another available area.
	2.	Avoid to transport any heavy material by manual handling especially in some awkward environment.
	3.	Arrange chain block and chains to transport the bathtub.”

29.  The report also contained the dimensions of the metal bathtub and of the metal staircase.  It also recorded the plaintiff’s opinion that the stair was narrow and that it was difficult to move the bathtub from its top to its bottom.  It also mentioned that the hydraulic platform had been out of service for two days prior to the accident.

30.  Section 30 allows the court to disapply the three-year limitation period provided under section 27.  Section 30(1) states:

“	(1)	If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
		(a)	the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and
		(b)	any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
	the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

31.  Section 30(3) requires the court to have regard to all the circumstances of the claim and in particular six factors.  They are:

“	(a)	the length of, and the reasons for, the delay on the part of the plaintiff;
	(b)	the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;
	(c)	the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
	(d)	the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
	(e)	the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
	(f)	the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

32.  I have also been referred to the cases of Bhimrai Sunwar v Le Cheong Engineering Company & Maeda-Kumagai Joint Venture HCPI1492/2000 and Leung Tai Sang v Hospital Authority,HCPI481/2004. 

33.  I now consider these factors.  The delay is over nine months.  Though it is not unduly long, I would not think that it is very short. 

34.  The plaintiff appeared to be a person who was keen about his rights.  This is demonstrated by his objection to the first medical assessment and his application for review.  If he was aware of his common law right, I doubt whether he would have done nothing to preserve and make full use of it.  I in particular refer to the period after he had received the balance of the employees’ compensation.  He received it on 29 July 2003, but he remained in Hong Kong for another five months before returning to Fujian province in January 2004.  If he was then aware of his common law right, I cannot see why he would have done nothing during this period. 

35.  Though I do not prefer his explanation for his long stay in Fujian province and tend to think that the true reason was his attachment to his family, there is, however, nothing wrong about that.  Of course, if he was somehow detained in Fujian province by his injured finger, then that would have added to the merits of this application.  However, the fact that he stayed there for sentimental reason should not put this application to disadvantage so long as he was then not aware of his common law right.

36.  Mr Au-Yeung for the defendant submitted that he had been working in Hong Kong for six years and it was inconceivable that he was so ignorant about his common law right.  However, as I have stated above, if he was aware of such right, he would not have done nothing before returning to Fujian province.  For this reason, I accept that he was not aware of his common law right until he was told the same in August 2005 in Hong Kong.

37.  On the cogency of the evidence, it was a simple accident not involving the operation of any machine or any vehicles running in the street.  The safety officer of the 1st defendant had investigated into it and had compiled a comprehensive report recording how it happened.  He had also given his recommendations to prevent recurrence.  There is thus no question that the defendants’ evidence is likely to be more cogent if this claim had been brought within time.

38.  I also note that no attempt has been made by the defendants to locate those workers who were present at the scene, and I would not accept that it would be difficult to locate them or their memories have faded.  The workers may or may not be within reach and their memories may or may not have faded.  Evidence is required before a conclusion can be drawn.

39.  On the conduct of the defendants, the plaintiff has not made any submission. 

40.  I also do not think that the plaintiff has suffered any disability since the expiration of his sick leave.  I do not accept that he returned to Fujian province primarily for medical treatment.  I think that was just the incidental purpose when he was staying at home.

41.  On the fifth factor, I think the plaintiff has acted promptly after having been told about his common law right.

42.  On the last factor, the evidence also suggests that the plaintiff had resort to legal advice as soon as he was told about his common law right. 

43.  Mr Au-Yeung also raised questions on the prospect of success, whether a fair trial is possible and the likely quantum of the plaintiff’s claim.

44.  On the prospect of success, he mainly relied on the particulars of contributory negligence.  I do not think I should comment on the likely finding on these particulars, but they do appear to be arguable.  However, the recommendations in the accident investigation report also showed the plaintiff’s case to be arguable.  I do not think there is at present sufficient material for me to say that the plaintiff has only a slim chance of success.

45.  On the question of a fair trial, the 1st defendant has conducted a proper investigation into the accident.  In the light of the contents of the accident investigation report, I think the defendants will be able to have a fair trial of the matter. 

46.  The plaintiff has already received $255,635 employee’s compensation.  The claims for pre-trial and future loss of earnings are based on total unemployability.  In the light of the conclusion of Dr Au Ka-kau that the plaintiff can return to his previous job though with reduced efficiency, such claims are obviously exaggerated.  The claims for PSLA and loss of earning capacity are stated at $250,000 and $100,000 respectively in the statement of damages.  The plaintiff’s wages for the 11-month sick leave were at $185,900. 

47.  Mr Au-yeung thus submitted that if there should be a finding of a significant degree of contributory negligence, the award may be very small or there may not be any award at all.  However, it is still open to the trial judge to find some pre-trial and future losses of income.  There is not enough evidence at present for any conclusion to be drawn.  I also repeat my observation above on the likely findings of negligence or contributory negligence.  I cannot say at present that the award, if any, would be very small. 

48.  However, on the basis of the materials available, I am of the view that there is no real likelihood that the award, if any, would exceed the jurisdiction of the District Court.  Mr Sakhrani for the plaintiff also accepted that this is a matter that requires consideration if I should allow the matter to go ahead.  Weighing all the factors and all the circumstances of this case, I would allow the plaintiff’s application.  The action will move ahead, but I also transfer it to the District Court for the above reason.

49.  Finally, I also make an order nisi that the defendants do pay the plaintiff the costs of this application in any event.

(Discussion re checklist review hearing)

50.  I also vacate the Checklist Review hearing in High Court scheduled before Master B. Kwan on 16^th June 2006 at 9:30 a.m. so that no further step need be taken in this court for this action and everything should be dealt with in the District Court.