YU PUN YUEN v. NG KWOK MAN t/a EAST MOUNTAIN ENGINEERING CO AND OTHERS

HCPI 293/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.293 OF 2002

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J U D G M E N T

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1. The plaintiff's claim is for damages for personal injuries sustained by him when he fell off a ladder while at work on 6 September 1999.

2. The claim is brought against three defendants. The 1st defendant is sued as the employer of the plaintiff. The 2nd defendant as the sub-contractor who had engaged the 1st defendant to do the air conditioning works and the 3rd defendant as the main contractor of the works.

3. All the defendants appeared at the hearing in person without legal representation. The 3rd defendant had prior to the trial been granted leave by the court to be represented at the hearing by its director. The plaintiff was the only party at the trial represented by counsel.

The accident

4. The plaintiff gave evidence as to how the accident happened.

5. The plaintiff started to work for the 1st defendant as an air-conditioning and ventilation technician on 22 August 1999. At that time the 1st defendant was undertaking an air conditioning and ventilation project at the Kam To Seafood Restaurant on the 3rd floor of Block 3, Aberdeen Centre in Hong Kong.

6. The plaintiff continued to work at that project until the date of the accident on 6 September 1999. On that day, after lunch, the plaintiff was instructed by the 1st defendant to drill holes on the 4 sides of a ventilating engine outlet located in the kitchen of the restaurant and to fix screws into the drilled holes. The engine outlet was some 9 feet from the ground.

7. For that work the plaintiff was provided with an "A" type folding ladder made of wood. The ladder was about 6 or 7 feet tall and had about 6 rungs of steps on each side of it. The steps of the ladder was about 1 foot apart. The ladder also had a piece of string attached to both of the second rung to prevent the ladder from opening beyond the length of that piece of string. Before using the ladder, the plaintiff had checked to see that the ladder was intact and not broken or defective.

8. According to the plaintiff, the floor of the kitchen was slightly sloping because there was a drainage on one side of the floor and a wall on the other side. The floor was slightly higher on the side of the wall and sloped towards the drainage on the other side so as to allow for any water on the floor to run towards the drainage. The plaintiff estimated the gradient of that slope on the kitchen floor to be about 2 inches high over a width of 5 feet.

9. The plaintiff opened the wooden ladder on the kitchen floor with one side of the ladder steps facing the wall (which has the higher level of the floor) and the other side of the ladder steps facing towards the drainage (i.e. the floor which has the lower level). He then mounted the ladder on the side nearer to the wall.

10. Before mounting the ladder to do the work, the plaintiff had told Yu Yuk Hang, one of the workers on this project, to hold the ladder for him while he was using the ladder.

11. When he first mounted the ladder to drill the first hole, the plaintiff was standing on the 3rd step of the ladder on the side nearer to the wall of the kitchen, and from there he had noticed that Yu Yuk Hang was standing by the opening of the side of the ladder on his left holding the ladder for him.

12. After the first hole had been completed, the plaintiff had to move further up the ladder to drill the other holes. For this the plaintiff had one leg on the 4th step and one leg on the 5th step of the ladder still on the side nearer to the wall of the kitchen. When he had moved up to this position in the ladder, the plaintiff held and used the electric drill in his right hand while his left hand held on to a piece of metal rod (which was hanging down from the ceiling of the kitchen) in order to steady himself while he was standing on the ladder. At this time the plaintiff did not notice Yu Yuk Hang any more as his attention was focused on the holes he had to drill which was at some 9 feet above the floor level.

13. After he had completed his work drilling the holes and inserting the screws which the plaintiff estimates took some 8-10 minutes, the plaintiff descended from the ladder. With his right hand still holding the electric drill, the plaintiff took one step down from the ladder and then let go of the metal rod with his left hand as the metal rod was not long enough. Just as he let go the metal rod, the ladder tipped over backwards of the plaintiff slowly. The plaintiff saw the ladder folding up as it tipped over backwards and the plaintiff, together with the ladder, fell backwards onto the floor of the kitchen.

14. After the plaintiff had fallen onto the floor and when he came out of the initial shock of the fall, he noticed that Yu Yuk Hang was not standing where he had originally stood to hold the ladder, but was some 6 or 7 feet away watching other workers do other work.

15. The plaintiff then chastised Yu Yuk Hang asking him why the ladder would fold up. In reply, Yu Yuk Hang told the plaintiff that while the plaintiff was working on the ladder, the ladder was already beginning to fold up gradually and continuously. When the plaintiff asked Yu Yuk Hang why he did not inform the plaintiff of that, Yu answered, saying that he thought the plaintiff knew about it.

16. The above evidence was the evidence given by the plaintiff as to how the accident occurred. No other evidence was adduced by any other party as to how the accident occurred.

17. Basically, I found the plaintiff to be generally a truthful and reliable witness except for one part of his evidence, which is the conversation he had with Yu Yuk Hang after he had fallen from the ladder.

18. I do not accept this part of the plaintiff's evidence for two reasons. Firstly, it is inconceivable to me that the first question asked by the plaintiff of Yu Yuk Hang after having fallen from the ladder and having seen Yu Yuk Hang to be 6 or 7 feet away from the ladder was why did the ladder fold up. Instead, one would have expected the plaintiff to have asked the more pertinent question of Yu Yuk Hang as to why he (Yu Yuk Hang) was not holding the ladder for the plaintiff.

19. Secondly, this alleged conversation was never contained in the plaintiff's witness statement or supplemental statement. The contents of that conversation went directly to the cause of the accident. No explanation has been given as to why that was not stated when the plaintiff made his witness statement.

20. In all the circumstances of the case, I find that this alleged conversation was made up by the plaintiff and designed to show that the cause of the accident was due to the ladder folding up thereby detracting from the plaintiff himself as much as possible any blame for this accident.

21. Apart from this aspect of the plaintiff's evidence, I do find that the accident occurred in the way as recounted by the plaintiff.

22. I also make the further finding from the evidence of the plaintiff that at some stage while the plaintiff was working on the ladder, Yu Yuk Hang had moved off several feet from the ladder, probably when the plaintiff was perched on top of the ladder and not moving such that Yu Yuk Hang thought that the plaintiff was safe enough without the need for him to hold on to the ladder constantly. I therefore find that Yu Yuk Hang was not holding on the ladder (as he was instructed to do) at the very moment which the ladder toppled backwards while the plaintiff was descending from it.

23. I will also make the finding that the ladder fell because when the plaintiff was descending from it, the shifting weight of the plaintiff's body caused the ladder to topple backwards (i.e. in the direction of the side from which the plaintiff was descending). I reject the suggestion by the plaintiff that the ladder toppled due to the fact that the ladder started to fold up even while the plaintiff was on it doing his work.

Liability of the 1st defendant

24. As already indicated, the claim by the plaintiff against the 1st defendant was on the basis that the 1st defendant was his employer. This is denied by the 1st defendant who says that both he and the plaintiff were employed by the 2nd defendant.

25. On this issue the plaintiff's evidence is that on 22 August 1999, he was contacted and then taken by a friend to the 1st defendant's company at the Wah Lung Industrial Building in Tsuen Wan where he was introduced to the 1st defendant. He had noticed the name of "East Mountain Engineering Company" painted in red on the door of those premises. There he had discussed and agreed terms of employment with the 1st defendant, including the wages he was to receive being $650.00 daily wage and overtime calculated at $160 per hour. The working hours to be from 9.00 a.m. to 6.00 p.m. daily.

26. That same day after lunch, he started work at the 1st defendant's premises, preparing ventilation ducts which they took over to the Kam To Seafood Restaurant at Aberdeen Centre for installation in the afternoon.

27. The plaintiff also gave evidence that in all his work up to the date of the accident, he received his instructions from the 1st defendant and that the tools and equipment for those work were supplied by the 1st defendant.

28. The plaintiff also gave evidence that he had never met the 2nd defendant and only knew the 1st defendant to be his employer.

29. On the other hand, the 1st defendant's evidence was that he had no project from June to August 1999, so he approached the 2nd defendant and was employed as a casual worker being given the post of foreman. At the end of August, the 2nd defendant asked him if he could find extra workers to help out and that was how he recruited the plaintiff to work but it was on behalf of the 2nd defendant.

30. The 1st defendant does not dispute that he had given all the instructions to the workers including the plaintiff but that he says those instructions were given by him in his capacity as the foreman of the 2nd defendant.

31. According to the 1st defendant, the tools and equipment for the work at the Kam To Seafood restaurant was provided by the 2nd defendant.

32. In so far as the evidence between the plaintiff and the 1st defendant differs on this issue, I prefer the evidence of the plaintiff who struck me as a reliable and honest witness.

33. I reject the evidence of the 1st defendant for two basic reasons. Firstly, there was no evidence from him that he had ever informed the plaintiff that the plaintiff was recruited by the 2nd defendant nor even mentioned the name or company of the 2nd defendant to the plaintiff. I would have expected no less than that if it was indeed the case that the 1st defendant had recruited the plaintiff on behalf of the 2nd defendant. Secondly, when cross-examined, the 1st defendant initially agreed with counsel for the plaintiff that he had provided the ladder (from which the plaintiff fell) for use by the plaintiff. However, just a few questions later, and almost as an afterthought, he changed that evidence to say that the ladder was newly bought by him and that he would be claiming reimbursement from the 2nd defendant. If that was true, I would not have expected the 1st defendant to have agreed with counsel that the ladder was provided by him when he was first asked that question. For clearly in those circumstances there could be no doubt but that the ladder was provided by the 2nd defendant.

34. I therefore find on this issue that the plaintiff was the employee of the 1st defendant and not employed by the 2nd defendant as suggested by the 1st defendant.

35. Having made that finding, it follows that the 1st defendant was under a duty to provide a safe system of work for the plaintiff. I further find that in all the circumstances of this case, the provision by the 1st defendant of only a folding ladder for the plaintiff to drill holes at some 9 feet above the ground without any suitable work platform was a breach of that duty by the 1st defendant. Accordingly I find the 1st defendant negligent towards the plaintiff.

Liability of the 2nd defendant

36. As for the 2nd defendant, there is no dispute that he was the sub-contractor of the 3rd defendant and who had further sub contracted the works to the 1st defendant, no evidence having been adduced by either the 2nd or the 3rd defendant.

37. The plaintiff's claim against the 2nd defendant is that the 2nd defendant is vicariously liable for the negligence of Yu Yuk Hang, being the employee of the 2nd defendant.

38. While the plaintiff, in his evidence, said that he believed Yu Yuk Hang may have been employed by the 1st defendant, he was not in a position to know the actual situation. There was however direct evidence from the 1st defendant, which I accept, that Yu Yuk Hang was employed by the 2nd defendant. In the absence of any other evidence to the contrary, I find, from the evidence of the 1st defendant, that to be the case.

39. Once again, based on my earlier finding as to how the accident happened, it is abundantly clear that Yu Yuk Hang was negligent towards the plaintiff when he moved away from holding the ladder before the plaintiff had completely descended from the ladder. That omission by him to hold on to the ladder to steady it before the plaintiff had fully descended from the ladder was a major cause of the accident.

40. Having found that Yu Yuk Hang was employed by the 2nd defendant, it follows accordingly that the 2nd defendant is liable vicariously to the plaintiff for the negligence of its employee Yu Yuk Hang.

Liability of the 3rd defendant

41. The 3rd defendant is a limited company and the main contractor for the ventilation works at the Kam To Seafood Restaurant.

42. Initially, when the case was opened by counsel for the plaintiff, liability of the 3rd defendant was put on the footing of occupier's liability. Counsel sought to argue that occupier's liability came about because the floor of the kitchen where the accident occurred was not entirely level but sloped at a slight angle towards the drainage.

43. When it was pointed out to counsel that the slope on the floor had neither been pleaded nor particularized in the Amended Statement of Claim as being the basis of the occupier's liability alleged against the 3rd defendant, no application for amendment of the pleadings was made.

44. When it came to final submission, counsel for the plaintiff informed the court that she had abandoned any argument or submission on occupier's liability as against the 3rd defendant. Instead she indicated that she will found her claim against the 3rd defendant on the common duty of care.

45. While I accept that a principal contractor in the position of the 3rd defendant would be under the common duty of care vis-à-vis a worker in the position of the plaintiff, there is but minimal evidence before me as to how the 3rd defendant was in breach of that duty of care.

46. The only relevant evidence adduced in this trial relating to the 3rd defendant, apart from the fact that it was the main contractor in relation to the ventilation works sub-contracted to the 2nd defendant and in turn sub-contracted by the 2nd defendant to the 1st defendant, is the evidence of the 1st defendant when he was cross-examined by counsel for the plaintiff. During that cross-examination, the 1st defendant was asked whether he had seen representatives of the 2nd and/or 3rd defendants on the site between 22 August and 9 September 1999. To this question, the 1st defendant said that he had seen a Mr Yip and a Mr Wong, both of them from the 3rd defendant, on site on one or two occasions. The 1st defendant further said that Mr Yip was responsible for drawing plans and Mr Wong was responsible for the works but that he had no idea as to their posts in the 3rd defendant.

47. This was the sum total of the evidence relating to the 3rd defendant in this case.

48. On this evidence, counsel for the plaintiff submitted that the 3rd defendant ought reasonably to have foreseen the danger to the plaintiff caused by the use of the ladder in the kitchen of the Kam To Seafood Restaurant on the afternoon of the 9 September 1999, and was therefore in breach of its common duty of care to the plaintiff.

49. Counsel for the plaintiff further sought to rely on the cases of Lai Chi Pon v. Toto Steel Iron Works Ltd, HCPI No.1149A/1995; Wong Woon Hei v. Dickson Construction Ltd, HCPI No.521/2000 and Ng Wah Chun v. Cheng Wing Chung and ors, HCPI No.164/2001 to support her contention that the 3rd defendant in this case, being the principal contractor, was in breach of his duty of care to the plaintiff.

50. In Lai Chi Pon, where the plaintiff there, without supervision by his employer, had to construct a somewhat elaborate but unsafe scaffold and working platform which ultimately fell injuring the plaintiff, Cheung J (as he then was) came to the conclusion that the inadequacy of the scaffold and the working platform was or ought to have been obvious to the principal contractor on site or its foreman.

51. However in the present case, in the absence of any evidence that someone from the 3rd defendant or its foreman was present in the kitchen of the Kam To Seafood Restaurant for the 10 minutes or so that the plaintiff performed the work on the ladder, it is quite impossible to say that the 3rd defendant obviously knew or ought to have known of the unsafe system of work that was being employed by the plaintiff and his co-worker.

52. In the case of Wong Woon Hei v. Dickson Construction Ltd, Deputy High Court Judge Muttrie found on the facts of that case that it was a situation involving a special risk of damage by falling and relied on the law as stated in para.2-314 of Charlesworth and Percy on Negligence, 9th Edn relating to special risk of damage to say that a principal contractor cannot escape liability by engaging an independent sub-contractor in those circumstances.

53. In the present case, the evidence does not reveal any special risk of damage and that principal of law has no application here.

54. In Ng Wah Chun, Recorder Wong not only followed the decision in Wong Woon Hei, but in that case, liability of the principal contractor was not disputed.

55. None of the three judgments relied on by the plaintiff assist the plaintiff in showing that the 3rd defendant was in breach of its common duty of care to the plaintiff.

56. In the absence of any evidence showing that the 3rd defendant knew or ought to have known that such an unsafe system of work was being used (for those 10 minutes or so that the plaintiff was using that ladder in the kitchen), I am of the view that the plaintiff has failed to prove negligence on the part of the 3rd defendant.

Contributory negligence

57. Contributory negligence was relied on by all the defendants. However only the 1st defendant gave evidence.

58. Factually the 1st defendant gave evidence that there was available a working platform at the site which was about 6 feet in height but that it was his experience that the workers would rather use a ladder for convenience. That was particularly so in this case since that work performed by the plaintiff on the ladder took only about 8 or 10 minutes as told by the plaintiff.

59. The plaintiff on the other hand disagreed with the 1st defendant that any work platform was available at the site.

60. I accept the evidence of the plaintiff in this respect and reject the evidence of the 1st defendant because two reasons were advanced by the plaintiff as to why he would have used a platform if one was available.

61. The reason given by the plaintiff was that, firstly, he had found the floor of the kitchen to be sloping with a drainage nearby and therefore considered that a work platform would be much more steady on that floor as opposed to a folding ladder. Secondly, the plaintiff in his evidence-in-chief had already told the court that he had to clear off a pile of bricks from the floor of the kitchen before he could open the folding ladder for use. When it was suggested to him in cross-examination by the 1st defendant that there was a platform available but that the plaintiff chose not to use it, the plaintiff's reply was that he was not so stupid to have to clear off the pile of bricks in order to use the ladder, but if there was a platform available he would not need to clear that pile of bricks since those bricks could remain underneath the four legs of the platform. This in my view is a very cogent reason given by the plaintiff as to why I preferred his evidence to that of the 1st defendant on this issue.

62. However, that is not conclusive of the issue of contributory negligence. From the plaintiff's own evidence, I find that there is evidence of contributory negligence by the plaintiff. It comes about in this way.

63. The plaintiff's evidence was that when he was working initially on the third step of the ladder drilling the first hole, he was able to see Yu Yuk Hang holding onto the ladder for him. But when he moved further up the ladder to drill the other holes, his attention was no longer on Yu Yuk Hang but that he assumed Yu Yuk Hang would still be holding on to the ladder to steady it. So far, I can still accept that to be reasonable and it cannot be expected of the plaintiff, while his attention was focused on his work, to have checked every other minute that Yu Yuk Hang was doing what he had been told to do.

64. However, it was also the plaintiff's evidence that when he finished all his work after about 8 to 10 minutes and decided to descend from the ladder he did not check again to see that Yu Yuk Hang was still holding the ladder before he descended.

65. That in my view was pure carelessness on the part of the plaintiff for these reasons. Firstly, from the start, the plaintiff knew that the circumstances of that kitchen with its sloping floor and nearby drainage made it unsafe for the use of a ladder and it was due to such knowledge that he instructed Yu Yuk Hang to hold on to the ladder when he was using it to steady it for him. Secondly, the plaintiff, with some 30 years of experience in this type of job, often needing to reach high places using a ladder, conceded in the witness box that he was aware that the shifting weight of a person descending such a folding ladder would normally cause the ladder to be less steady as opposed to when the person is simply perched on the ladder and not moving. Thirdly, in the present case, the plaintiff also gave evidence that normally after finishing his work on a ladder with an electric drill, he would lower the drill down to a colleague by the electric cord before descending from the ladder. However, in this case, the electric cord had been caught by one of the legs of the ladder and he could not do so but instead had to hold the drill in his right hand while descending.

66. These are all reasons why in the present case the plaintiff ought to have checked to see that Yu Yuk Hang was in fact holding on to the ladder when the plaintiff had finished his work before descending. All it would have taken was a sideways glance downwards and by then the plaintiff did not have to focus his attention on his work anymore. His failure to do so, in my view, clearly amounted to carelessness and amounted to contributory negligence in that he had failed to take reasonable care for his own safety.

67. I would assess the plaintiff's own contributory negligence at 20%. The reason is that despite such contributory negligence, the primary cause of the accident was undoubtedly the failure of the 1st defendant to provide a safe method or system for the plaintiff to carry out his work and also the failure of Yu Yuk Hang to ensure the ladder to be steady by holding on to it at all times that the plaintiff was on the ladder.

Quantum

68. I turn now to deal with the amount of damages in this case.

Injuries and Treatment

69. After the accident, the plaintiff was admitted to the Queen Mary Hospital where X-ray revealed a fracture of the distal right radius and ulna (i.e. the wrist). He was admitted to the orthopaedic unit and the fracture was managed with plaster of paris cast after closed reduction.

70. Further clinical diagnosis was made and which showed a rotator cuff tear of the right shoulder. On 4 October 1999, an MRI of the right shoulder was taken and showed complete disruption of the subscapularis tendon and partial tear of supraspinatus tendon. The plaintiff underwent four sessions of occupational therapy at the David Trench Rehabilitation Centre in October 1999. He was then referred to the Yung Fung Shee Memorial Centre for further occupational therapy and attended a further 6 sessions there.

71. On 8 December 1999, arthroscopy of the right shoulder showed complete rupture of long head biceps and interval tear between the subscapularis and supraspinatus tendon. Open repair of the right shoulder rotator cuff was performed on 25 January 2000.

72. Between January and November 2000, the plaintiff was given 68 sessions of physiotherapy, after which the symptoms in his right wrist subsided but his right shoulder was still painful and stiff with weakness.

73. A further MRI of the right shoulder was taken which suggested focal disruption of the anterior part of the supraspinatus tendon. The plaintiff was offered a further operation to repair the tendon but declined to accept it.

74. For the injuries sustained by the plaintiff, he was given sick leave totalling 686 days from the time of the accident until 24 August 2001.

75. The plaintiff was examined by Dr Richard Poon in June 2002 and again in October 2002. In so far as the fractured right distal radius and ulna was concerned, Dr Poon concluded that the fracture had healed with mild radial deviation and dorsal tilt. The range of movement has remained near normal except for some loss of wrist flexion. The disability to the right wrist was mild but there was some weakness of the right grip due to the pain from the right shoulder.

76. As for the right shoulder, Dr Poon opined that the plaintiff had sustained a rather extensive rotator cuff tear in his right shoulder involving a complete rupture of the long head of the biceps and an interval tear between the subscapularis and supraspinatus tendon. Physical examination of the range of right shoulder movement showed that his main disability was the inability to abduct (sideways movement) or flex (forward extension) his right shoulder joint past the horizontal without flexing the elbow, or to hold the flexed position above the horizontal for more than a few seconds due to the tear in the supraspinatus tendon.

77. The examination in October 2002 was jointly conducted with the defendants' medical expert, Dr Chun Siu Yeung. Dr Chun does not differ greatly from the opinion of Dr Poon as regards the condition of the plaintiff. Dr Chun opines that the plaintiff's rotator cuff tear was probably due to :

(a) acute or chronic rupture, where the rotator cuff tendons were degenerated, a minor trauma may cause the abnormal degenerated tendon to rupture; or

(b) chronic rupture, which are pre-existing and were not generally symptomatic, and the soft tissue contusion might aggravate or precipitate the symptom of the pre-existing chronic tear.

78. Both doctors are agreed that the injuries and resultant disabilities of the plaintiff from them effectively prevent the plaintiff from going back to his pre-accident work as an air conditioning and ventilation technician, but that he will be able to take on alternative employment which will not require strenuous demand of the right hand.

Pain suffering and loss of amenities

79. The present complaint of the plaintiff is still related to his right shoulder. He still has pain, stiffness and weakness in the right shoulder as well as weakness of the right hand in gripping. The range of movement of the left shoulder is still rather limited and quite noticeably the plaintiff, when in the witness box, keeps his right arm very much to his side with little movement.

80. In so far as an award under this head is concerned, I was referred to a number of local awards relating to both shoulder injury and wrist injury by counsel for the plaintiff.

81. The awards relating to the shoulder injury as cited by counsel for the plaintiff ranged between $300,000 and $400,000, and the awards cited for wrist injuries were in the region of around $200,000.

82. What I have to do in the present case is to look at all the injuries and disabilities suffered by the plaintiff and to arrive at a global figure taking into account all the pain, suffering and loss of amenities in one go. It would be wrong for me to assess an award for the shoulder injury and then add to it another assessment for the wrist injury.

83. In going about the assessment of a reasonable award in this matter, apart from the injuries and treatment to the plaintiff as stated above, I will also take into account the fact that the plaintiff was aged 52 at the time of the accident and is right handed.

84. Counsel for the plaintiff urged upon me to make the award under this head on the basis that the injuries and resultant disabilities of the plaintiff from them should come within the category of "serious injuries" as it is used in the case of Lee Ting Lam.

85. However, having seen the plaintiff give evidence in court and having taken note of all the evidence, in particular the medical evidence, I am unable to say that the injuries and disabilities of the plaintiff in this case can be said to be such as would "mar general activities and enjoyment of life" for the plaintiff although I do accept that his injuries would hinder him to some extent. As such, I am of the view that his disabilities fall just short of this category.

86. I take the view therefore that an award of $450,000 would be a reasonable amount of compensation under this head of damage.

Loss of earnings (pre-trial)

87. There is no dispute that the plaintiff's earnings came to $18,500 per month before the accident. Indeed that was the finding of the District Court in Employees' Compensation Case No.358 of 2001 in which all the present defendants were parties.

88. There was no evidence before me as to the present earnings of an air conditioning and ventilation technician in the position of the plaintiff had the accident not happened.

89. However, I note that the pre-accident monthly earnings was calculated on the basis of $650 for a 28 days month and adding on a further $300 for overtime.

90. I can and do take note that the air conditioning and ventilation industry being part of the construction industry will have its set backs since the economic recession. It would be unlikely that at present time there will be overtime work or even a 28 days of work in a month. The normal working days in a month will be 26. On the basis of a normal 26 work days without overtime, even assuming the daily wage has not changed, the present month earnings of a person like the plaintiff had it not been for the accident will come to $16,900.

91. Using that figure and taking a mean for the pre-trial period, it comes to $17,700. That is the figure I propose to adopt as the average earnings for the pre-trial period.

92. The plaintiff claims for full loss of earnings pre-trial for 44 months.

93. While the medical evidence was that the plaintiff could not resume his pre-accident work, at the same time all the doctors were of the view that the plaintiff could take on alternative employment. His sick leave ended at end of August 2001.

94. I am of the view that the plaintiff ought to be compensated for full loss of earnings for the entire duration of the sick leave period. After the expiry of the sick leave, it would be reasonable to allow a further six months for the plaintiff to secure alternative employment since the plaintiff would by then be 54 years old. Totally, therefore, the plaintiff will be compensated for 30 months full loss of earnings. Thereafter, it would not be unreasonable to expect the plaintiff to be able to earn around $5,000 per month in some form of alternative employment which he will be able to perform given his injuries and disabilities. Indeed that suggestion came from the plaintiff's counsel, albeit in relation to the calculation for future loss of earnings. For my part, I can see no good reason why notional alternative employment should only be taken into consideration for future loss and not applied to the period six months after expiry of the sick leave as well.

95. On this basis therefore, the pre-trial loss of earnings is worked out as : ($17,700 x 30 months ) + ($12,700 x 14 months) = $708,800.

Future loss of earnings

96. For future loss of earnings, I shall use the notional figure for present earnings of an air conditioning and ventilation technician as worked out above which is $16,900.

97. Accepting that it would not be unreasonable to expect the plaintiff to find some form of suitable alternative employment which would pay him in the region of $5,000 per month, the multiplicand comes to $11,900.

98. In so far as the multiplier is concerned, counsel for the plaintiff has proposed using a multiplier of 7. In so submitting, she relies on three decided cases.

99. In Law Yim Kwan v. King Man Industrial Co Ltd [1986] HKLD 419, the plaintiff there was a casual manual worker before the accident whose hand was injured when it came into contact with the unguarded dangerous part of a plastic injection moulding machine. That plaintiff was 51 at the time of the accident and 56 at the time of trial. A multiplier of 6 was used to calculate future loss of earnings.

100. In Liu Sheung Lok v. Wah Wah Travel Services Ltd [2000] HKLRD H12, a multiplier of 6 was used to calculate loss of future earnings for a private bus driver aged 54 at the time of the accident and 58 at trial.

101. In Chan Pui Kuen v. Lee Oi Wah [2001] HKLRD113, a multiplier of 7 was used to calculate loss of future earnings for a female domestic helper aged 53 at the time of the accident and 55 at trial.

102. In the present case, the plaintiff was 52 at the time of the accident and 56 at the time of the hearing. His pre-accident work as an air-conditioning and ventilation technician required him to drill holes at a height overhead about 70% of his work for which he would have to work on either a work platform or a ladder. It also required some heavy manual work in transporting the ventilation ducts.

103. In the light of the nature of that work and the age of the plaintiff, I am of the view that a multiplier of 5 would be reasonable in this case.

104. The loss of future earnings therefore comes to : $11,900 x 12 x 5 = $714,000.

Loss of benefit under Mandatory Provident Fund

105. MPF became mandatory as from 1 December 2000 in Hong Kong.

106. The loss of pre-trial earnings for the period from 1 December 2000 I work out to be $443,300. The loss of MPF benefit for the pre-trial period therefore comes to 5% of that figure which is $22,165.

107. The loss of MPF benefit for the future loss of earnings is simply a 5% of the amount of future loss of earnings which comes to $35,700.

108. The total loss of MPF benefit therefore comes to $57,865.

Loss of earnings capacity

109. There is a claim by the plaintiff for loss of earnings capacity worked out as 12 months of the notional earnings of the plaintiff in the post-trial period. The amount claimed is $60,000.

110. In the light of the plaintiff's injuries and disabilities coupled with the medical opinion expressed by the doctors that such disabilities are likely to be permanent, such injuries and disabilities would put the plaintiff at a real disadvantage in the labour market, that claim for loss of earnings capacity is not unreasonable and will be allowed in the amount claimed.

Other special damages

111. Special damages claimed by the plaintiff in the total sum of $24,984.70 are made up of hospital and medical expenses, travelling expenses and the cost of tonic food.

112. All these items claimed were admitted by the 3rd defendant in its Answer to the Revised Statement of Damages when the 3rd defendant was legally represented.

113. None of the items claimed has been challenged or disputed by the other defendants. All the items claimed appear to be reasonable to me and they will be allowed in full.

Future cost of operation

114. The plaintiff claims an amount of $100,000, being the cost of future operation for repairing his supraspinatus tendon as recommended by Dr Poon. This was the operation which the plaintiff has previously declined to receive.

115. In evidence, the plaintiff said that he does not intend to undergo that operation in future as recommended by Dr Poon due to the traumatic experience which he had when he underwent the last two operations.

116. In the circumstances, this claim will not be allowed.

Interests

117. Interests will be awarded at 2% p.a. on general damages for PSLA from the date of the Writ. Interests will also be awarded at half judgment rate for special damages and pre-trial loss of earnings from the date of accident.

ECC compensation

118. Credit will have to be given for the amount of ECC compensation received by the plaintiff in the amount of $758,233.33.

Summary

PSLA	$450,000.00
Pre-trial loss of earnings	708,800.00
Future loss of earnings	714,000.00
Loss of MPF benefit	57,865.00
Loss of earnings capacity	60,000.00
Special damages	24,984.70
Interests on PSLA	9,500.00
Interests on Special and Pre-trial loss of earnings	110,783.00
	---------------
Total:	$2,135,932.70

Conclusion

119. This final amount of $2,135,932.70 which represent full liability will have to be reduced by 20% to take account of the contributory negligence of the plaintiff. That will give a figure of $1,708,746.20.

120. From this figure will be deducted the ECC compensation in the amount of $758,233.33 which will give a final figure of $950,512.87.

121. Accordingly, there will be judgment for the plaintiff against the 1st and 2nd defendants in the amount of $950,512.87.

122. The claim against the 3rd defendant is dismissed.

Costs

123. Cost of the plaintiff's claim be borne by the 1st and 2nd defendants, to be taxed if not agreed.

124. The plaintiff to pay the costs of the 3rd defendant in the defence of this action to be taxed if not agreed.

125. Legal aid taxation for the plaintiff's costs.