WONG KWOK TUNG v. TSANG HIN PING, PARTICK t/a KAM PANG CONSTRUCTION CO. (a firm) AND OTHERS

HCPI 725/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.725 OF 1997

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J U D G M E N T

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1. This is a claim for damages arising out of an accident which occurred on 6 August 1994. The plaintiff, aged 30 at the time of the incident, was employed by the 3rd defendant as a scaffold worker. The 1st defendant is the principal contractor of a building site located at No.223, Seymour Terrace. The 2nd defendant carried on a business as a scaffolding works contractor and was the sub-contractor of the 1st defendant. The 3rd defendant was the sub-contractor of the 1st and 2nd defendants.

2. On the day of the accident, the plaintiff and a number of other workers were directly employed by the 3rd defendant and they were entrusted with dismantling the bamboo scaffolding erected at the site. In the course of his work, the plaintiff fell from height and suffered injuries to his abdominal region. He was treated at Queen Mary Hospital where emergency operations were performed. He was discharged on 10 August 1994.

3. As a result of the accident, the 1st defendant was charged with and convicted of failing to provide workmen employed at the construction site with suitable safety belts, contrary to regulation 38Q(2) of the Construction Site Safety Regulations. The plaintiff was not provided with any safety belts or other means of harness by his employer at the time when he was dismantling the scaffolding.

4. Interlocutory judgment on liability was entered against the 1st and 3rd defendants on 12 June 1998. The 2nd defendant contested the plaintiff's claim and denied liability. He also alleged contributory negligence on the part of the plaintiff. The 2nd defendant did not appear at the trial.

5. Based on the evidence of Mr Choi Kai Yip, a factory inspector with some eight years' experience and the evidence of the plaintiff as contained in his witness statement, I have no difficulty in finding that the 2nd defendant was an occupier of the site within the meaning of the Occupiers' Liability Ordinance, Cap.314, and that it was the contractor responsible for the scaffolding within the meaning of the Construction Site Safety Regulations. I also find that the 2nd defendant was negligent and was in breach of an occupier's common duty of care towards the plaintiff. He is also in breach of his statutory duty to provide the plaintiff with safety belts or other adequate means of harness.

6. I find the 2nd defendant to be liable to the plaintiff in respect of his accident and the injuries sustained therefrom and the plaintiff had not contributed to his injuries in any way.

Quantum

7. The plaintiff was born on 22 September 1963 and was 30 years of age at the time of the accident. Prior to the accident, he was a scaffold worker with over 10 years' experience. At the time of the accident, he was working an average of 15 days a month with a daily wages of $700. The average monthly earnings was therefore $10,500.

8. Immediately after the accident, he received emergency operation on the same day at the Queen Mary Hospital. He was discharged on 10 August 1994 after which he attended follow-up out-patient treatment.

9. There are two medical reports prepared by Dr Arthur Chiang, dated 23 October 1997 and 26 July 1999 respectively. According to the doctor, the plaintiff's abdominal injury had shown satisfactory recovery and any mild residual symptoms experienced previously had improved. The permanent impairment of the whole person was assessed at 1%. Further, the doctor was of the opinion that the plaintiff should be able to perform the work activities of the pre-injury job.

Special damages

10. The claim for special damages as set out in the revised Statement of Damages is allowed in full : $7,844.

Pre-trial loss of earnings

11. The current monthly of a scaffolding worker is stated to be $15,373, which is calculated on the basis of a 10% per annum increase from August 1994 up to August 1998. There is also assumed that there has been no increase thereafter. If it is calculated on the basis of a 15 working-day month, the total pre-trial loss of earnings is :

($10,500 + $15,373)÷2 x 66 months			$853,809
Less:	(1)	$12,750 (15 days scaffolding work since May 1995)	12,750
	(2)	($4,000 + $7,500)÷2 x 61 months (casual labourer since January 1995)	350,750
		Total :	$490,309

Loss of future earnings

12. In the light of Dr Chiang's medical report, there is no award under this head.

General damage PSLA

13. In Chan Pui Ki [1996] 2 HKC 657, the award in the serious injury category has been revised to start at $400,000. The plaintiff's injury in the present case is nowhere near that degree of seriousness. I would award a sum of $180,000 under this head.

Summary of damages

Special damages	$7,844.00
Pre-trial loss of earnings	$490,309.00
PLSA	$180,000.00
Total :	$678,153.00

14. The plaintiff is entitled to interest on PSLA at 2% per annum from the date of the writ and half judgment rate from the date of accident on pre-trial loss of earnings and special damages. I would also award costs in favour of the plaintiff against the 2nd defendant and the plaintiff's own costs will be taxed in accordance with Legal Aid Regulations.