MOHAMMAD SHAKIL v. LAM SIU KWONG trading under the name or style of TAT LEE ENGINEERING AND ANOTHER

HCPI 610/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 610 OF 2007

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J U D G M E N T

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1. On 17 January 206, the plaintiff, Mr Mohammad Shakil, then aged 34, was injured in an accident at work.  At the time he was employed by Mr Lam Siu Kwong (the 1^st defendant), who traded under the name of Tat Lee Engineering, as a general construction site labourer.  Mr Lam had subcontracted slope work on the landward side of the South Lantau Road from the main contractor, Dix Construction & Transportation Limited (2^nd defendant).  It was at this construction site that the accident occurred, resulting in injuries to the plaintiff’s back and right thigh.

2. The plaintiff brings this action for damages against the defendants alleging negligence, breach of contract of employment and breach of duty under the Occupiers Liability Ordinance, Cap. 314, the Construction Sites (Safety) Regulations made under the Factories and Industrial Relation Undertakings Ordinance, Cap. 59, the Occupational Safety and Health Ordinance, Cap. 509 and regulations made thereunder.

LIABILITY

The plaintiff’s account

3. It was the plaintiff’s evidence that one of his principal duties was to keep the U-shaped drainage channel and manholes at the base of the slope under construction free of sludge.  In order to facilitate this work, empty oil drums would be delivered by lorry and placed at positions along the site near where he was working in order to provide receptacles for the sludge he had removed from the drainage channel and manholes.

4. On the day prior to the accident, the plaintiff had complained to the 1^st defendant and the 1^st defendant’s foreman, Ah Tai, that there were no available empty drums into which to put the sludge.  However, since he was merely removing sludge from the drainage channel and not from the manholes that day, he was able to dispose of the relatively small quantity of sludge by simply depositing it on the ground in the vicinity of the channel.

5. The following day, the day of the accident, there were still no empty drums available.  The plaintiff again spoke to the 1^st defendant and the foreman.  They told him that since there would be an inspection of the site that day, he should simply dump the sludge from the manhole he was about to clear at the back of a small slope behind the manhole.  The 1^st defendant had indicated the place to which he was referring.

6. Acting on these instructions the plaintiff started to remove sludge from the manhole.  He stood in the channel at the edge of the manhole and then used an empty paint can to carry the sludge approximately four metres from the manhole to the top of the slope where he disposed of the contents onto the slope which ran down in the opposite direction.

7. He made eight such trips before on the 9^th trip, just before he reached the top, he slipped backward on the slope which, although originally dry, had become wet from mud on his safety shoes and wet sludge which had spilled out from the paint can on earlier trips.  After slipping, his back hit the concrete edge of the manhole and he fell on his buttocks into the manhole.

8. He was found there by some official staff inspecting the site.  He was taken by ambulance to the clinic at Mui Wo and then to Princess Margaret Hospital.

9. Mr Y. L. Cheung, who appeared for the defendants in this trial, has not sought to argue that if the accident happened in the manner alleged by the plaintiff it would not have amounted to breach of the defendants’ duties to the plaintiff.

Mr Pang Long

10. The defendants did not call the 1^st defendant or the foreman, Ah Tai, to rebut the plaintiff’s allegation that he had been acting on their instructions in performing the work in question.

11. The defence sought to undermine the credibility of the plaintiff’s account by calling Mr Pang Long, a safety officer of the 2^nd defendant, who had not witnessed the accident but who, on his account, visited the site about three times per week.

12. His evidence was that the plaintiff would not have been instructed to deposit mud on the slope, not merely because it would flow back again into the channel, but because on his instructions a soil disposal area had been created in a fenced off area of the road surface approximately seven metres from the manhole.  Sand bags were positioned on one side of the soil disposal area to prevent mud flowing into the road.  A grab crane mounted on a lorry would clear the soil disposal area about once a week.  He referred to a blurred photocopy of a faxed photograph at page 431 of the trial bundle as being of this area.

13. He maintained that drums were not used to store sludge.  It would be impracticable to use them for that purpose unless they were specially adapted.  They were only used when filled with concrete as “rock-fall fencing” to prevent falling rocks reaching the road.

14. Furthermore, he maintained that at the time of the accident there had been fencing beside the manhole, one purpose of which was to prevent people climbing the slope behind.  He referred to a photograph, Exh. P2 at page 219 of the trial bundle, taken by the Labour Department at an unknown date after the accident, as being a photograph of this fence.  It had been the plaintiff’s evidence when asked about this fence that it was only erected after his accident.

15. In assessing the credibility of the differing accounts when considering the issue of liability, I bore in mind the view of both doctors examining the plaintiff that there were signs suggesting exaggeration of his complaints.  However, in so far as his account of how the accident occurred, I found nothing to suggest that it might be untrue.  Bearing in mind that he would have given his account through an interpreter, there were no significant inconsistencies between what he told the Occupational Safety Officer who compiled the official accident report on 14 June 2006 and what he told the court.  I believed his evidence.

16. In contrast I found Mr Pang Long an evasive and unconvincing witness, who gave the impression of being more concerned to deny anything that he considered might assist the plaintiff’s case rather than be frank with the court.

17. In his capacity as a Safety Officer of the 2^nd defendant, Mr Pang prepared an accident investigation report the day after the accident, 18 January 2006.  He described the accident in the following terms :

“While the injured person cleaning soil on the invert level U-Channel at top of slope, he lost his balance and fell down. ….”

18. It is apparent therefore that he was aware that the accident occurred when the plaintiff was disposing of soil at the top of the slope.  It is very surprising if his evidence is true, bearing in mind that in the same report he had to state his recommendations and action to be taken to prevent recurrence, that he made no mention in this report that the plaintiff had had no need to dispose of the soil at the top of the slope because of the presence of the alleged “soil disposal area” very close to the accident scene and he made no mention of the presence of the fence which on his account had been present, partially at least, to prevent people climbing the slope.

19. His only recommendation in that report was “two men gang may be considered while clearing soil on the U-Channel”.  His explanation in court for that recommendation, that if one man slipped the other might be able to support him before he fell, was in my view unworthy of belief.  I am satisfied that the reason he made that recommendation, which corresponds with a later recommendation made by the Occupational Safety Officer of the Labour Department, is that he believed that one of the causes of the accident was that the plaintiff had not only to remove the mud from the manhole or channel thereby rendering his feet wet and muddy, but had to subsequently dispose of the sludge with his feet in that condition.  His explanation in court was simply to avoid admitting anything that could amount to fault on the part of his employers.

20. Bearing in mind his position as a Safety Officer, that he knew how the plaintiff was alleging the accident had occurred and that the plaintiff had commenced proceedings prior to making his first witness statement on 18 December 2007, I am satisfied that he would have referred to the absence of need to dispose of the mud at the top of the slope because of the soil disposal area and the presence of the fencing if it had been true.  He did not.

21. In his evidence about the railing, I found him evasive.  He was unconvincing in his reluctance to admit that it would have been an easy matter to dismantle the railing.  Having insisted that he knew the railing had been erected at the site from the start of the project, he then in my view became evasive when it was put to him that it had not been.  He resorted to saying that he had asked the foreman who was the general manager at the time who had told him that it was there.  When it was put to him that he did not know whether the foreman was telling the truth or not, he said that according to past inspection records the railing was there at the time.  However when questioned later about those records he claimed that they had been thrown away after completion of the project.

22. I found similar difficulty in accepting his evidence about the fact that empty drums were not used to contain sludge and that he could be sure of the existence of the soil disposal area at the time of the accident.

23. If there had been a soil disposal area as close to the manhole as Mr Pang suggested, I believed that the plaintiff would have used it rather than unnecessarily climb a slope.

24. I found Mr Pang’s evidence regarding the photocopy of the faxed photograph at page 431 of the bundle unsatisfactory.  While it may well depict a soil disposal area at one of the 2^nd defendant’s sites on a particular date, I am not satisfied that it is a photocopy depicting the situation near the scene of the plaintiff’s accident on 17 January 2006.  Mr Pang agreed that he faxed the photograph to the 2^nd defendant’s solicitors the day before his 2^nd witness statement of 5 July 2008 having just discovered it, yet he did not convincingly explain why if it depicted the scene of the accident he did not specifically refer to it in the statement.  He gave conflicting accounts of where he found the photograph.  Initially he said that he found it loose, not bearing any caption, among the inspection records of a number of sites.  Later and without explanation he said it had come from papers from a file opened in relation to this accident.

25. Even though he admitted that he was aware that the plaintiff had alleged that he had been previously using oil can as receptacles for sludge before he made his 2^nd statement, Mr Pang made no specific reference to this not being the case in that statement.

26. In so far as he gave evidence about the difficulties and impracticability of lifting oil drums containing sludge onto lorries, he admitted that it was possible to adapt oil cans so that they could be lifted.  In any event it was never suggested to the plaintiff when he gave evidence that the drums could not be lifted onto lorries so he had no opportunity to explain how it was done.

27. In so far as there were differences between the evidence of the plaintiff and that of Mr Pang, including as to safety training, I preferred the evidence of the plaintiff.

28. I found that the accident occurred while the plaintiff was following express instructions from his superiors to dispose of sludge at the back of the slope behind the manhole.  I found that this was an unsafe system to dispose of the sludge.  It involved him climbing a slope in shoes which themselves were wet and muddy as a result of having to remove the sludge from the manhole.  The slope itself became progressively more slippery and unsafe as he repeated the journey with wet and muddy shoes, and the almost inevitable spillage of sludge as it was carried up the slope.  I found negligence and breach of statutory duty on the part of both defendants and breach of contract by the 1^st defendant.

29. In the light of the fact that he was acting on express instructions there is no question of any contributory negligence on the part of the plaintiff.

QUANTUM

30. On the day of the accident the plaintiff was admitted into the Department of Orthopedic and Traumatology at Princess Margaret Hospital complaining a back pain and right thigh pain.  Physical examination revealed tenderness over the lumbar spine.  There was no definite neurological deficit.  No fracture was detected.  He was treated with analgesics and physiotherapy.  One week later, on 25 January 2006, he was transferred to the Caritas Medical Centre for rehabilitation.  He was discharged after another 12 days in hospital, on 6 February 2006, and followed up in the Outpatient Department at Princess Margaret Hospital where he continued to complain of persistent low back and right thigh pain.  He continued to receive physiotherapy until 27 July 2006 and underwent occupational therapy until 4 September 2006.  Sick leave was granted until 1 December 2006.

31. He continues to complain of back pain and inability to lift weight heavier than 7 to 10 kilogrammes.  

32. A joint medical report by Dr Lee Po Chin and Dr Lam Kwong Chin dated 17 January 2008 was before the court.

33. The doctors agreed that the objective findings at the joint examination showed “possibility of residual back pain, but there were multiple inorganic signs that suggested exaggeration or functional overlay of complaints.”  They found that the plaintiff probably had a back contusion with soft tissue involvement.  They agreed that his present condition should be stable.  They stated :

“We agreed that Mr. Mohammad should be able to return to work in the construction site as a general worker with some loss of work efficiency and endurance based on his back symptoms.  There will be some impairment in his ability to fit weights.  Dr. Lee opines that the current job of security guard in a warehouse is also an appropriate alternative.”

Pain, suffering and loss of amenities

34. It is not suggested that this case falls within the serious injury category.

35. The plaintiff has essentially suffered back contusion and soft tissue injury. 

36. In deciding the appropriate amount under this head, I bore in mind that the plaintiff was on sick leave for 10½ months, and during initial months had limited walking tolerance and his pain and discomfort would have been more severe than it is at present.  While bearing in mind the doctors’ evidence that he has exaggerated his complaints, I accepted he is now prone to intermittent low back pain and is unable to lift heavy weights.

37. I have taken into account the cases referred to me by counsel, in particular Lai Hon Chiu v. Choy Kam Tin, HCPI 260/2007, Lam Kei Fung v. Incorporated Owners of Yue Tin Court, DCP1237/2005, Chan Chung Keung v. Greenroll t/a Conrad Hong Kong, HCPI 275/2005 and Ng Lai Fan Fanny v. The Hong Kong Golf Club, HCPI 511/2005.

38. I have also considered the defence submission that as there were degenerative changes in the plaintiff’s spine, the award should be no more than $120,000 relying on the case of Lau Chi Wah v. Kwong Kee Construction Ltd, HCPI 581/1998.  I accepted Mr Lim’s, counsel for the plaintiff’s, submissions that the facts of Lau Chi Wah’s case differ from the present case.  There the plaintiff had a pre-existing degenerative condition which would have manifested itself even without the accident.  In the present case there is no evidence that the plaintiff’s condition would necessarily become symptomatic.

39. In my view the appropriate award under this head is $200,000.

Pre-trial loss of earnings

40. It is not disputed that the plaintiff’s monthly average pay in his employment with the 1^st defendant was $11,500 per month.  I am satisfied that the plaintiff is entitled to his full loss of pay during the period of his sick leave.

41. I accepted the plaintiff’s evidence that the approximately a week after the end of his sick leave he obtained employment at a construction site in Tsing Yi but within 1½ hours had to stop work as a result of back pain resulting from the need to carry heavy bags up a hill.

42. On 31 January 2007, he obtained a job as a security guard with Southern Services Limited earning on average a total of $7,000 per month for working 14 hours per night, every night without rest days.

43. On 14 March 2008, he left Southern Services Limited and obtained a job with China Overseas Security which had shorter working hours but only paid $5,900.  After a short period with another employer when yet again he had no rest days, he joined his present employer City Transport Building Management where he works 12 hours a day and has one rest day a week.  He now earns $6,500.

44. The plaintiff impressed me as a person who is anxious to work, evidenced by the fact that he obtained a job shortly after his sick leave ended and with only short breaks has remained in employment ever since.  I accepted that if he felt able to do so he would have gone back to his old job in a construction site.

45. The doctors’ opinion about his ability to return to work as a general construction worker subject to some loss of efficiency and endurance and restricted ability to lift weight does not mean that he would be able to return to his pre-accident employment.  Indeed I accept the plaintiff’s evidence that in his experience a general labourer in a construction site is always required to carry heavy weights.  I accept he cannot now do that.  It is speculative that he would never be able to obtain employment as a labourer in a construction site with his limitations.  Even if he was able to find employment he could manage for a short period, I consider that there would be long periods when he would be unable to obtain such employment.

46. I share the view of Dr Lee that the plaintiff’s current employment as a security guard is an appropriate alternative in the circumstances and one which would provide him with continuity of employment.

47. I regard the proposal by Mr Lim to take the median between the plaintiff’s highest wage since the accident ($7,000 per month) and his current wage ($6,500 per month), namely $6750 per month, provides a fair figure for calculating his pre and indeed post accident loss of earnings.

48. In so far as what his current earnings would have been if he had remained a general labourer in a construction site, I have no reason whatsoever to doubt the evidence Mr Kwok Yat Wah of the 2^nd defendant that he had discussed with the 1^st defendant the daily rate of $450 paid to workers on the South Lantau contract and had been informed by the 1^st defendant that they were at that level because of the remoteness of the place of work rather than the $350 or $400 per day paid on other contracts.

49. I have no reason to question the rates of pay of $350 to $400 per day recently paid to labourers on slope work by another of his company’s subcontractors, but, as Mr Kwok himself admitted, wages can vary from one subcontractor to another and he is not able to say that the plaintiff would not be able to earn $500 per day with another subcontractor.  The statistical tables produced by the Census and Statistics Department showed that the average daily wage of workers engaged in public sector construction projects as reported by main contractors showed daily wages ranging between $580 and $566 in 2007 and 2008.  Those daily rates do not however necessarily mean that such work would be available 26 days per month.

50. In the circumstances I consider it fair to take a figure of $12,000 per month as representing the wages that the plaintiff could have expected to earn if he had remained in employment as a general labourer.

51. His pre-trial median wage would therefore be $11,750 (i.e. $11,500 + $12,000 ÷ 2).

52. I calculate his pre-trial loss of earnings as follows :

(a)	17 January 2006 to 30 January 2007(12 ½ months at $11,500 per month)	$143,750
(b)	31 January 2007 to present($11,750 – $6,750) x 18 months	$90,000
	Total :	$233,750

Post-trial loss of earnings

53. The plaintiff is now 36.  He is a strongly built man but has up and till now symptomless, degenerative changes in the lumbar spine.  These changes may have remained symptomless throughout his working life, but bearing in mind the heavy nature of his previous work should be borne in mind in assessing the appropriate multiplier which, in my view, in the circumstances should be 14.

54. I assess his future loss of earnings as : ($12,000 – $6,750) x 12 x 14 = $882,000.

Loss of MPF

55. The plaintiff’s loss of MPF would be : ($233,750 + $882,000) x 5% = $55,787.

Loss of earning capacity

56. I have assessed the plaintiff’s loss of future earnings on the basis that he continues to be employed as a security guard/watchman.  I find no reason to suppose he would be disadvantaged in obtaining such employment in the future, or that that employment is any more precarious than that of a construction site labourer.  I decline to make an award under this head.

SUMMARY OF QUANTUM

57. The defendants are liable to pay the following damages to the plaintiff :

(1)	PSLA	$200,000
(2)	Pre-trial loss of earnings	$233,750
(3)	Loss of future earnings	$882,000
(4)	Loss of MPF benefits	$55,787
(5)	Loss of earning capacity	Nil
(6)	Agreed special damages :
	Hospitalization expenses and medical expenses	$4,256
	Travelling expenses	$800
	Tonic food	$3,000
(7)	Less : Employees’ Compensation received	($158,100)
	Total :	$1,221,493

Interest

58. I award interest at the usual rate of 2% on general damages from the date of service to writ until judgment and at half judgment rate from time to time on pre-trial loss of earnings and special damages, but less Employees’ Compensation received, from the date of accident until judgment.

COSTS

59. I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 14 days.  The plaintiff’s costs are to be taxed and paid by the defendants.  The plaintiff’s own costs to be taxed under the Legal Aid Regulations.