TAMANG, TIKARAM v. TONG KEE COMPANY LTD AND OTHERS

HCPI 19/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 19 OF 2013

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J U D G M E N T
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A. INTRODUCTION

1. The plaintiff, Tamang Tikaram (“Tamang”) claims damages for personal injuries that he suffered in an accident that took place at Flat G, 36/F, Tower 3, T200904, Che Kung Temple Station, Shatin, New Territories (“the Site”) on 23 July 2011.  At that time, he was an aluminum formwork erector.

2. The 3^rd defendant, Hip Hing Builders Company Ltd (“Hip Hing”) was the principal contractor responsible for the construction of residential buildings and ancillary facilities on the Site.  The 2^nd defendant, Chuen Kee Construction Co Ltd (“Chuen Kee”), was a sub‑contractor of Hip Hing responsible for the formwork work in relation to the residential blocks.  The 1^st defendant, Tong Kee Company Limited (“Tong Kee”), was a sub‑sub‑contractor of Chuen Kee responsible for such work in relation to two of the blocks including Tower 3. Although Tamang pleaded that Chuen Kee was his employer, there is indisputable evidence that Chuen Kee had sub‑contracted the work further to one Y & Kit Construction Company Limited; and that the work was further sub‑contracted to Lee Sam Kan and Lee Muk Tong.  It appears that these two Mr Lee directly employed a group of Nepalese aluminum formwork workers.  Apart from Tamang, they included Limbu Chandra Kumar (“Limbu”), Rai Hem Raj (“H Rai”) and Rai Bikram (“B Rai”), who have given evidence for Tamang at trial.  It appears that B Rai and another man called Rai Ganga Parsad were the gang leaders.

3. Tamang claims that he fell onto the ground while standing on a stool to erect and fix aluminum formwork at the external wall of the balcony at the Site (“the Accident”).  He sues the defendants in negligence and for breach of statutory duties, in particular, by failing to provide a safe working platform on the double layered bamboo scaffold outside the balcony.  He relies on the fact that Chuen Kee and Hip Hing were convicted of various offences in relation to the Accident.  The defendants deny liability.  They claim that the Accident was caused wholly or partly by Tamang’s own negligence, in particular, by failing to fasten the safety belt.  They further say that the convictions of Hip Hing and Chuen Kee are irrelevant.

4. As a result of the Accident, Tamang suffered injuries to his right ankle.  He claims that he still suffers from residual pain and stiffness in the right ankle and that he cannot return to work in the construction site.  Hence, he has changed to work as a security guard after the sick leave expired.  The defendants take the view that Tamang has exaggerated his disabilities, and that he should be able to return to his pre‑Accident job.

B. LIABILITY

B1. How the Accident happened

5. At the material time, Tamang and Limbu were erecting the formworks for the balcony of Flat G on the ceiling of the 36/F.  The formworks were aluminum panels.  At the ceiling level, there was a ceiling/slab formwork, a beam side formwork and a beam bottom formwork.

6. Tamang was tightening the angle channel of the beam side formwork to the flange of the beam bottom formwork.  He had to insert a pin through the aligned pre‑set holes on the angle channel and the flange of the formworks.  Then, a tapered wedge would be hammered into the hollow cavity of the pin to tighten the gap between the two formwork panels.

7. However, Tamang could not do the job by standing on the ground on 36/F because the beam bottom formwork was about 2.8 metres above the ground.  Hence, he stood on a rectangular stool consisting of a meshed wire surface and a tubular steel frame held together with pins measuring about 30 cm wide, 98 cm long and 116 cm high (“the Stool”).  The Stool was placed on the ground of the balcony close to its edge facing the outside.

8. He stood on the Stool so that he could reach the side face of the formwork to do the hammering and tightening job.  The side face refers to the side facing the outside.  To do the job, his upper body leaned outward so that his hands (with the pin and wedge in his left hand, and the hammer in his right hand) could reach out to do the work.

9. When he was working on one of the pins/wedges, he lost balance and fell off the Stool.  He landed on the curb of the balcony on 36/F.  His right ankle was injured as a result.

10. Tamang’s evidence as to how the Accident happened is supported by Limbu.  His description of the Accident was recorded in detail in the Accident Report of the Labour Department dated 6 January 2012 (“the Accident Report”). The defendants have not adduced any evidence to contradict Tamang’s evidence in this respect.  I have no difficulties in holding that the Accident happened in the manner as described by Tamang.

B2. Whether the defendants are liable

11. Although many causes of action have been pleaded and numerous allegations have been made, Tamang’s case against all the defendants boils down to one main point: whether the Stool constituted safe working platform in the circumstances?

12. In the Accident Report, the Safety Officer pointed out that as Tamang’s upper body had to lean outward to facilitate his hands to reach up for the work, he was vulnerable to lose balance and fall off from the Stool.  And to maintain his foothold on the Stool, Tamang had to be very cautious to keep his body balance when working under this posture.  The situation was even worse as he could not have a firm and continuous handhold to keep his balance bearing in mind that his left hand had to grasp the wedge/pin and the hammer in his right hand when doing the tightening job.  Further, the act of hammering the wedge into the pin would cause movement to his upper body which would make it more difficult to keep his balance.  Had Tamang not landed on the balcony after the fall, he could have fallen onto the 34/F.

13. The Safety Officer opined that the Stool was not a suitable working platform; and that the Accident could have been avoided if a proper working platform had been erected on the double‑layered bamboo scaffold outside the building.

14. I am, of course, not bound by the opinions of the Safety Officer.  However, his opinions are based on good common sense, and I share the same opinions.

15. More importantly, in the light of the Accident Report, criminal prosecutions were brought against Hip Hing, Chuen Kee and Lee Muk Tong.  On 18 April 2012, they were convicted on their own plea at the Shatin Magistrates’ Courts of the following offences:

(a) In case no. STS721/2012, Hip Hing was convicted of failing to take adequate steps to prevent person from falling contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Site (Safety) Regulations (“CSSR”).

(b) In case no. STS722/2012, Chuen Kee was convicted of failing to take adequate steps to prevent person from falling contrary to regulations 38B(1A), 68(1)(a) and 68(2)(g) of the CSSR.

(c) In case no. STS723/2012, Lee Muk Tong was convicted of the same offence as that committed by Chuen Kee.

16. Mr Sakhrani, acting for the defendants, submitted that the convictions are irrelevant because they were concerned with the failure to take adequate steps to prevent a person on the Site from falling for a height of two metres or more; but Tamang fell for only about one metre.  He submitted that the risk of injury covered by the criminal offence was not the risk that had materialized.  I am afraid that the matter is not that simple.

17. The convictions are admissible under section 62 of the Evidence Ordinance (Cap 8).  Section 62(1) provides that, in any civil proceedings the fact that a person has been convicted of an offence by or before any court in Hong Kong shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence.  Section 62(2)(a) provides further that, in any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Hong Kong, he shall be taken to have committed that offence unless the contrary is proved.  The legal effect of the conviction in civil proceedings was explained in Stupple v Royal Insurance Co Ltd [1971] 1 QB 50.  The conviction shifts the legal burden of proof.  Having said that, the weight of the conviction depends on the circumstances to be decided by the judge at the civil trial.

18. Tamang pleads that the convictions are relevant to a number of issues including:

(a) Chuen Kee and Hip Hing failed to provide a suitable and proper working platform to him.

(b) They failed to take steps to prevent him from falling from a height whilst at work.

(c) They were negligent.

19. Section 62(2)(b) of the Evidence Ordinance provides that, without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complainant, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose.  In this case, the facts on which the convictions were based are set out in the “Summary Facts of Case” prepared by the prosecution.

20. At the hearing before the magistrate, Hip Hing was represented by counsel whereas Chuen Kee and Lee Muk Tong were acting in person.  It is most important that after pleading guilty to the offences, all three defendants admitted to the Summary Facts of Case, which contains the following paragraphs:

“4.4 During the accident, the Injured Person, who was inside the site at the external wall of the balcony of Flat G, 36/F, Block 3, a unit facing Flat A, was erecting the formwork on 37/F. The vertical distance of the balconies on 37/F and 36/F was 2.8 meters. And as the formwork was required to be erected on the external wall facing outside, the Injured Person was unable to carry out his work on the ground of the balcony on 36/F. He put a working platform (30 cm in width, 98 cm in length X 116 cm in height) on the balcony near the concrete edge and stood on it. The Injured Person whilst working was required to incline and lean his body out of the balcony. During which, the Injured Person fell from the working platform and landed on the concrete edge of the balcony on 36/F causing the above injury.

…

4.8 During the accident, the working platform on which the Injured Person was standing was unsafe and inappropriate.

4.9 The external wall of the building was erected with scaffoldings of double bamboos.  The internal scaffoldings extended up to 34/F while the external ones extended to 37/F.  The internal and external scaffoldings and the balcony were respectively 45 cm and 165 cm in distance.  During the accident, there was no working platform provided on the scaffoldings outside the external wall where the Injured Person was working.”

21. It does not matter that, in fact, Tamang did not fall for more than two metres.  Indeed, he was lucky because he was liable to fall and could have fallen for such a distance.  The vital point for the present purpose is that Hip Hing and Chuen Kee admitted that the Stool was unsafe and inappropriate.  Neither Hip Hing nor Chuen Kee has called any witness to explain why they made such an important admission.  The admission is contradictory to the stance taken by the defendants at this trial, namely, the Stool was safe and sufficient.

22. Mr Sakhrani submitted that it was not possible to erect a working platform because the inner layer of the scaffold had not yet reached 36/F. I agree that Tamang’s evidence in this respect is confusing and inconsistent.  It is reasonably clear that, as found by the Labour Department and admitted by Chuen Kee and Hip Hing in the criminal proceedings, the inner layer had only been erected up to 34/F.

23. As the inner layer had only reached 34/F, Mr Sakhrani is correct that, at the time of the Accident, it was impossible to build a working platform on the bamboo scaffold at the 36/F level.  But this is beside the point.  The simple answer is that Tamang should not have been asked to carry out the work in question on that floor unless and until the inner layer of the scaffold had been built up to 36/F so that a working platform could have been erected there.  In the criminal proceedings, Hip Hing’s counsel admitted in mitigation that such a working platform could have been provided.

24. Tamang said that he had asked for a working platform but his request was ignored.  I agree with Mr Sakhrani that his evidence on this point is unsatisfactory in that it is inconsistent and lacking in particulars.  However, I note that, in the criminal proceedings, Chuen Kee’s representative said that the worker had asked the foreman of the Site for a working platform, and that Chuen Kee had also relayed such request to Hip Hing; however, in view of the need concerning the progress of the work, Chuen Kee did not stop the work.  Hence, there seems to be some truth in Tamang’s complaint in this respect.  However, it does not matter even if Tamang had not made any such request.  It was the duty of the defendants to take reasonable steps to protect the workers.  It must be their duty, on their own initiative, to co‑ordinate the works and to ensure that a safe working platform would have been made available for Tamang’s use when he was asked to do the work on that floor.

25. Although none of the defendants was the direct employer of Tamang, it is clear that they all owed a duty of care to him.  Quite simply, owing to their roles in the Site, they had the powers to take reasonable steps to safeguard Tamang’s safety; and it must have been reasonably foreseeable to them that if they did not exercise reasonable care in this respect, Tamang would be exposed to unnecessary risks of injury.  Even assuming that Chuen Kee and Hip Hing had not been convicted of the above offences, I have no difficulties in holding that all the defendants were negligent in failing to provide a suitable working platform to Tamang, and causing or permitting him to do the job by standing on the Stool.  This is sufficient to dispose of the issue of liability of the defendants.

26. It is unnecessary for me to consider whether the defendants are also liable under the other causes of action.  Suffice to say that Hip Hing, as the principal contractor of the Site, must be liable for breaching the statutory duty to provide a safe place of work under regulation 38A of the CSSR. And, in addition, in view of the fact that they all exercised some degree of control over the Site, they must also be liable for breaching the common duty of care as occupiers under the Occupiers Liability Ordinance (“OLO”) (Cap 314). Under section 3(2) of the OLO, the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

B3. Whether Tamang was contributory negligent

27. The defendants pleaded that the plaintiff was contributory negligent on various grounds.  However, at the trial, they focused on one ground, namely, Tamang failed to anchor his safety belt to the horizontal bar on the vertical panel of the formwork when he was standing on the Stool.  At the trial, I gave leave to the defendants to amend the Amended Defence by including such a plea because the evidence of both the plaintiff and the defendants had already touched upon this issue.  I also gave leave to the parties to lead oral evidence on this point. Mr Sakhrani submitted that, if Tamang had fastened the safety belt properly, to use the Stool would have constituted a safe system.  Hence, he argued that the Accident was caused wholly or partly by Tamang’s failure to do so.

28. Before turning to the evidence, it is pertinent to bear in mind the general legal principles in this respect.  First and foremost, the burden of proof is on the defendants to prove contributory negligence.  Second, in considering an allegation of contributory negligence against a worker or an employee, one must always have regard to Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716, where McNair J held at 721F‑G that:

“ …when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer’s business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer’s breach in providing him with the proper tackle, I am very slow to put any blame on him……”

29. Further, when a breach of statutory duties is involved (as in this case), one must remember what Ribeiro JA (as he then was) said in Mak Woon King and another v Wong Chiu [2000] 3 HKC 350 at 356I‑357A:

“ It is therefore clear that where a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that the employee contributed casually to the accident by his momentary inadvertence or lack of care, if in the context of a repetitive, distracting or fatiguing work environment, may well be regarded as an `excusable lapse’ and not as contributory negligence at all……”

30. Tamang admitted that he had worn a safety belt but he said there was no anchorage point.  The defendants claimed that it could have been fastened to the bracing, which was a horizontal bar affixed to the vertical aluminum formwork on one side of the balcony.

31. To begin with, it is unclear what type of safety belt was in fact provided to Tamang.  Tang Chi Shing (“Tang”), of Tong Kee, shown a safety belt in court and said that it was the same type provided to Tamang. That safety belt had not been shown to Tamang in cross‑examination. Nevertheless, I am prepared to assume that the safety belt provided to Tamang was similar (including the length of its lanyard).

32. The factual issue is whether there was a horizontal bracing at the time of the Accident.  If not, the defendants’ case on this point will collapse.  Tamang and his co-workers denied that there was any bracing at the time of the Accident.  Tang said that he saw the bracing one day after the Accident.  The photos taken two days after the Accident show the bracing.  The defendants relied mainly on the inherent probability of the matter.  Tang gave evidence that the vertical formwork panels needed to be firmly secured in order to support the horizontal formwork panels on the ceiling of the unit which was already there at the time of the Accident; and that it was necessary to secure the panels firmly by the bracing.  Although Limbu agreed that the vertical panels should be firmly secured, they differed on whether the bracing needed to be installed to serve such purpose.

33. Although Tang’s inference appears to be attractive, the fact remains that he has no personal knowledge whether there was any bracing at the time of the Accident.  Further, it is difficult to understand why such an important fact was not mentioned in any of his witness statements, or even in the Amended Defence.  As mentioned, it was only after the trial had commenced that the defendants made it clear that their case is that the bracing could serve as an anchorage point for the safety belt.  Bearing in mind that the burden of proof is on the defendants, on a balance of probabilities, I am not convinced that the bracing existed at the time of the Accident.

34. But even assuming that the bracing was already there at the time of the Accident, one must go on to consider how the safety belt could have been fastened to the bracing so as to prevent the Accident. One should bear in mind that Tamang fell for about one metre only.  In view of the length of the lanyard of the safety belt, one wonders how fastening the safety belt to the bracing could have prevented the Accident.  The answer given by Tang in court is that Tamang could and should have looped the lanyard several times around the bracing to reduce its length.  To prevent a fall of about one metre, one would have to loop the lanyard around the bracing many times.  I have serious reservations in practice, this was how the safety belt was supposed to be used; and that it was practicable to do so at all.  As Mr Wright pointed out, to do so would seriously restrict the range of movement of the workers.  Tang admitted that he had not instructed Tamang to fasten the safety belt in such manner; and he did not know whether the other defendants had done so.  But he said he had seen the Nepalese workers doing so.  I have serious doubts whether what he said is true.  In any event, in the absence of any evidence that Tamang had been provided with clear instructions to fasten the safety belt in such manner, even assuming that some workers did so in practice, I would not put any blame on Tamang for not doing so on this occasion.

35. Furthermore, it is crucial to note that in §4.7 of the Summary of Facts concerning the criminal conviction, Hip Hing and Chuen Kee admitted that:

“ … During the accident, the Injured was wearing a safety belt. But there were no ‘anchor’ provided at or near his working position to get his safety belt buckled.”

36. This admission is contradictory to the case run by the defendants at trial.  No evidence has been adduced to explain why Chuen Kee and Hip Hing saw fit to make such an important admission if their present argument is true and sustainable.

37. For these reasons, I am not satisfied that Tamang was negligent in not fastening the safety belt.

38. As a fall‑back position, Mr Sakhrani submitted that, even if Tamang could not fasten the safety belt, he could and should have sought assistance from his co‑workers to hold him securely while he was standing on the Stool.  There were 11 workers in the same team working on the same floor at that time, though it is unclear how many worked in or near Unit G.  In theory, it would have been possible for Tamang to ask for assistance.  But I am not satisfied that assistance was readily available in practice.  It is clear that each of them was engaged in his own work.  It is wrong to put any blame on Tamang for not asking his co‑workers to help in those circumstances.

39. Lastly, it was suggested that Tamang could have done the hammering from the opposite direction so that he did not have to lean his body out of the balcony; and could have stood in a more or less upright position.  Tang said he saw the workers doing the hammering from both directions.  What he said is contrary to the admission of Hip Hing and Cheun Kee to §4.4 of the Summary Facts of Case:

“The Injured Person whilst working was required to incline and lean his body out of the balcony.”

40. Further, even assuming what Tang said is true, if the defendants took the view that the hammering should only be done from one direction only, it must be their duty to give clear instructions to the workers.  As admitted by Tang, he had not done so personally and he did not know whether any of the other defendants had done so.

41. Mr Sakhrani stressed that Tamang was a very experienced worker. He had about 12 years’ experience in erecting aluminium formwork.  However, in Rainfield Design & Associates Ltd v Siu Chi Moon [2000] 2 HKC 418 at 424F, Ching PJ agreed that “it is often more important to give experienced workmen instructions of this sort because their familiarity with their work may tend to leave them contemptuous of safety precautions”.

42. All in all, I am not satisfied that the defendants have proved that the Accident was caused or contributed by Tamang’s own negligence.  In other words, I hold that the defendants are wholly liable for the Accident.

C. QUANTUM

C1. Injuries, treatments and disabilities

43. Tamang was born on 7 April 1975.  He was 36 years old at the time of the Accident, and will be 40 years old soon.

44. As a result of the Accident, he suffered a minimally displaced fracture of the right medial malleolus.

45. The treatments that he has received may be summarized as follows:

(a) He did not undergo any operation.  He was given a short leg dynast (which he worn for about seven weeks) for the ankle fracture.

(b) He was hospitalized for 3days.

(c)` He received 19 sessions of physiotherapy between 22 September 2011 and 10 January 2012.

(d) He received 17 sessions of occupational therapy between 30 January 2012 and 2 April 2012.

(e) He ceased to attend any follow up after 3 April 2012.

46. Tamang claims that he still has chronic pain in his right foot; he has difficulties in prolonged standing and walking or lifting heavy objects, running, jogging, walking fast or playing soccer.

47. Tamang was examined by Dr Wong Chin Hong (“Dr Wong”) and Dr Chun Siu Yeung (“Dr Chun”) on 11 June 2013.  The master has ordered that the joint report of Dr Wong and Dr Chun dated 29 October 2013 be adduced without oral evidence.

48. Tamang told the orthopaedic experts that, in respect of his right ankle, he had morning stiffness with associated pain, the pain increased in cold temperature and when going up and down stairs, carrying things (8 to 10 kgs) to walk, walking on uneven ground or for over 15 minutes. He carried an umbrella in his right hand saying that he used it as walking aid.

49. During the physical examination, he could walk at normal pace without aid; but he could not manage tip‑toe walking, heel walking; he could only squat down half‑way; he could not stand single legged on the right side but could do so on the right side.  Examination of his right ankle showed no discoloration, scar, deformity, swelling or CRPS I.  There was diffused tenderness over the right lower limb.  Sensation was normal.  However, the range of movement of the right ankle (active) was reduced.  The power of the right ankle was 4/5 (complained of pain and giving away).  The reflexes were normal.  There was no muscle wasting.  X‑ray showed that the facture healed in anatomic position, the joint was normal; and no other abnormality was noted.

50. Dr Chun opined that this was a simple low energy fracture.  Normally, the fracture heals within six weeks, then a rehabilitation of two to three months is usually adequate.  Here, the course was exceptionally long and the stiffness at the ankle was much more limited.  The possible reason was the ankle swelling noted after the cast removal.  The medical notes recorded that Tamang had complained that the cast was too tight.  Dr Chun agreed that there might be some residual limitation of active motions at the ankle, but the motions presented by Tamang at the examination were inconsistent with those reported by the physiotherapist or the attending doctors.  Tamang’s range of movement had apparently become worse.  However, once a range of motion is achieved through rehabilitation or by natural healing process, regression from better state back to worse state is highly unusual.  Hence, Dr Chun opined that the much limited range of ankle motions could not be genuine.  He also referred to the objective finding of absence of muscle wasting of the right lower limb, which indicated that Tamang’s pain and stiffness in the right ankle should not be of significance and that he should not require any walking aid.  He should be able to manage tip‑toe walking, walk on heels, and stand single leg on the right side.  The diffuse tenderness from right hip down was inappropriate, and grossly magnified and expanded his pain.  In short, Dr Chun opined that Tamang had exaggerated his symptoms and disability at the examination.

51. Surprisingly, Dr Wong did not make any comments on Dr Chun’s above opinions at all.  I must say that his assessment of Tamang’s impairment is unhelpful because it appears that he simply accepted Tamang’s subjective complaints without any objective and critical analysis.

52. Mr Wright sought to criticize Dr Chun’s opinions on various grounds including that they were inconsistent with the contemporaneous medical notes.  I take the view that, if the defendants wished to run those points against Dr Chun, they should have invited the experts to make a supplemental report on those specific points; and if there were material disagreements which could not be resolved on paper, they should have sought leave to cross examine the experts.  For the above reasons, I prefer Dr Chun’s opinions.

53. The defendants have obtained surveillance evidence on Tamang (as summarized in the report of Secret Eye Investigation Co Ltd dated 15 July 2014). It shows that in July 2014, he was apparently able to walk normally.  I agree with Mr Wright that Tamang was not observed performing any strenuous activities.  I also note that he held the handrail when walking on the staircase.  However, it does not necessarily mean that he did so because of any problem in the right ankle.  Tamang has not been asked to give any oral evidence on the surveillance evidence.  I do not find such evidence to be particularly useful.

54. I agree with Mr Wright that pain is subjective.  However, Tamang’s subjective complaints are unreliable because, as mentioned, he had exaggerated his disabilities at the examination by the experts.  It is difficult to assess the actual degree of his pain in these circumstances.  Further, there is little or no objective evidence supporting that he is still suffering from any significant pain or other problems with his right ankle.  Having said that, even Dr Chun has not excluded the possibility that he might still have some residual problems.  I take the view that he might have some residual problems with his right ankle, but I am not satisfied that such problems will be frequent or serious.

55. I shall now turn to the individual heads of damages.

C2. PSLA

56. Mr Wright submitted that an appropriate award should be $350,000.  He relied mainly on Lam Kam Fai v Yau Shing Scaffolding Co Ltd, HCPI 894/2011 (31 October 2013, unreported) in which DHCJ Hartmann awarded $325,000.  Mr Sakhrani submitted that $150,000 would be sufficient.  He cited Li Chi Sing v Equal Link Ltd, DCPI 1930/2011 (6 March 2013, unreported) and Cheung Kwong Hon v Nixon Cleaning Co Ltd and others, DCPI 1876/2009 (22 February 2011, unreported).

57. I have drawn the parties’ attention to a more recent precedent. In Ching Yuk Yee v Furniss Jacqueline Elizabeth and another, HCPI 127/2012 (24 October 2014), the plaintiff suffered a left ankle fracture.  She underwent a surgery for open reduction and internal fixation, and another subsequent operation to remove the implant.  She still experienced left ankle pain, left lower limb stiffness, right lower limb pain and stiffness.  She was also diagnosed with post‑traumatic stress disorder and depression.  DHCJ Wilson Chan awarded $250,000.

58. Each case must depend on its own facts.  I take the view that a fair and reasonable award in this case should be $200,000.

C3. Loss of earnings and MPF benefits

59. The first issue is how much Tamang earned at the time of the Accident. Tamang and his then co‑workers were cross‑examined vigorously by Mr Sakhrani in this respect.

60. Tamang claimed that he earned about $19,550 a month before the Accident. This is based on a daily wage of $850, and an average number of working days of 23 a month.

61. The defendants pleaded that, according to an employment contract signed between Tong Kee and Tamang, his daily wage was $500 only; and for the 7 months before the Accident, from December 2010 to June 2011, he worked 16.7 days on average a month.  Hence, his monthly earning was $500 x 16.7 = $8,350 only.

62. I shall consider Tamang’s then daily wage first.  There cannot be any serious dispute that Tong Kee was not in fact Tamang’s employer.  Tang said that $500 was the agreed daily wage as stated in the employment contract dated 10 December 2010 signed between Tamang and Tong Kee.  However, he did not know how much Tamang was actually paid.  Further, Lee Sam Kan stated in his statement to the Labour Department that Tamang’s daily wage was $850.  I have no doubt that his daily wage was indeed $850.

63. As to the actual number of working days, the indisputable evidence is the site in and out computer records kept by Hip Hing.  They show that from 10 December 2010 (when he started to work in the Site) to 23 July 2011 (when the Accident happened) (say 7.5 months), he worked 130 days.  This means, during his period, he worked on average 17.33 days a month.  This figure matches well with Tang’s evidence that, to his knowledge, an aluminium formwork erector like Tamang usually worked for about 18 days a month.  On the assumption that Tamang worked 18 days a month at the daily wage of $850, his average monthly income should be $850 x 18 = $15,300.

64. Here comes the most controversial issue in this respect. Tamang and his then co‑workers gave evidence that they received more because, since around January 2011, their direct employer agreed with them that they would receive five days’ wage for doing four days’ work.  Hence, if Tamang worked 18 days in fact, he would and should receive $850 x 22 (18 + 4) = $18,700.

65. Tamang and his then co‑workers said that their employers agreed to pay more because they worked longer hours each day.  Usually, the working hours were between 8am to 6pm; there would be a one hour lunch break and a half an hour afternoon tea break.  They said that, in fact, they worked for about three hours more each day: they would work from 7am till 7pm; they would take a very short lunch break of 5 to 15 minutes and they had skipped the afternoon tea break.

66. Tamang and his then co‑workers were paid in cash.  The only documentary evidence that they managed to produce to support their actual incomes are three salary forms for the month of April, May and June 2011.  They suggest that Tamang received $18,000, $20,400 and $19,550 in those three months respectively.  Mr Sakhrani’s cross‑examination demonstrates that these figures do not tally with his evidence that he was paid by reference to what Mr Sakhrani described as a “cycle” system: five days’ wage for four days’ work.  According to those figures, and based on the daily rate of $850, he was paid for 21.18, 24 and 23 days’ work in those three months.  The figure for April 2011 is not even a round figure.  Further, according to the site in and out records, in fact, he worked for 9, 19 and 18 days in those three months.  If one applies the rule of five days’ wage for four days’ work strictly, he should have received $9,350 ($850 x 11 days), $19,550 ($850 x 23 days), and $18,700 ($850 x 22) in those three months.  The figures shown on the salary forms are different and suggest that he received more.  There are similar discrepancies in relation to the figures shown on the salary forms concerning his then co‑workers.  Tamang and his then co‑workers were unable to explain the discrepancies satisfactorily.  The site in and out records also show that they did not in fact work strictly in accordance with a four day cycle from 7am to 7pm every day.  On some occasions, they left early.

67. B Rai said that their direct employer would pay him and Rai Ganga Parsad, the two leaders of that group of Nepalese workers, by a fixed amount per floor, which was around $48,000 which had been later increased to $49,500.  It is unclear how these sums were linked to the daily wage of the individual workers (which actually differed; for example, H Rai said his daily wage was $900).  B Rai said he and Rai Ganga Parsaid would be responsible for distributing the amount that they received from their employers in accordance with the daily wage of the individual workers and the rule of five days’ pay for four days’ work.  The two of them would divide the balance equally (if any).  He said he asked his daughter to prepare the salary forms, which were signed by the workers in advance.  The figures representing the amounts actually paid to the workers would be inserted every month.

68. I have considered all the criticisms made by Mr Sakhrani against the evidence of Tamang and his then co‑workers in this respect.  However, one needs to bear in mind that Tamang only needs to prove his case on a balance of probabilities.  Tang, the only witness who gave evidence for the defendants, does not know how much Tamang and then co‑workers actually received.  However, it is telling that he stated in his statement that the practice of paying five days’ wage for four days’ work is “uncommon”, which implies that such practice did exist.  In court, he said such practice was seldom but he did not know whether such practice was adopted in this particular site.  Further, there is no suggestion that the three salary forms are false documents.  I am satisfied that, on a balance of probabilities, they are contemporaneous documents recording accurately how much Tamang had received.  Tamang was actually and invariably paid more than simply by multiplying the daily wage of $850 by the actual number of working days.

69. It is also important not to lose sight of the inherent probability of the matter.  The site in and out records do support that Tamang and his then co‑workers did start working shortly after 7am and up to about 7pm.  There is no evidence to rebut their evidence that they had a very short lunch break and had skipped the afternoon tea break.  While I agree that it was most unlikely that they worked exactly for an extra three hours a day, I accept that they did work much longer hours than usual.  In usual circumstances, a worker who works beyond the normal working hours would be entitled to receive overtime pay.  It was inherently improbable that they would agree to work longer hours at the same daily wage.  The rule of getting five days’ wage for four days’ work provided the plausible answer why they agreed to do so.  Such system also provided the incentive to the workers to speed up with the work, which was of course beneficial to their employers and the defendants.

70. For the above reasons, I hold that, on a balance of probabilities, Tamang did in principle receive five days’ wage for every four days’ work.  As he worked actually for about 18 days a month, this would mean that he would and should receive an extra four days’ wage.  His average monthly income should be $850 x 22 = $18,700.

71. Tamang was granted sick leave from 23 July 2011 to 18 April 2012.  Dr Chun opined that sick leave should only be granted up to 3 April 2012 when the doctor arranged him to attend the Medical Assessment Board.  The difference of 15 days is insignificant.  Tamang should be entitled to claim a complete loss of earnings for the sick leave period.

72. It is reasonable to give a person some time to find a new job after the sick leave expires.  In this case, Tamang started to work as a security guard from July 2012.  It took less than three months for him to return to work after the sick leave expired.  I am satisfied that he should be entitled to a complete loss of earnings from the date of the Accident to the end of June 2012, say 11.25 months: $18,700 x 11.25 = $210,375.

73. From July 2012, he started to work as a security guard, making $8,000 a month.  His monthly salary was increased to $10,000 later.  He said he maintained access control of the incoming and outgoing vehicles in a site, and was not required to stand or walk for a long time.

74. The most critical issue is whether Tamang can and, therefore, should return to work in the construction site as before the Accident.  Tamang claimed that, in respect of his pre‑Accident job as an aluminum formwork erector, he had to do works such as lifting, transporting, assembling and dissembling of heavy aluminum panels at the construction site, which he can no longer do due to his present disabilities.

75. The occupational therapist of Tuen Mun Hospital said that his job required constant standing and walking, lifting and carrying, frequent crouching and occasional climbing.  At the initial assessment, he was ranked as below his job requirement for inadequate work endurance.  After completing the occupational therapy, he was still ranked as not matching his previous job demand.  The medical notes show that, at one stage, the occupational therapist opined that he had the potential to return to his previous job with further training but it turned out that he lacked confidence and felt subjectively that he could not resume his previous job.  The opinion that he did not match the previous job demand was due to “persistent pain with inadequate lifting capacity and endurance”.  It appears that such opinion was based on the performance of Tamang during the assessment and an assumption that he had tried his best.

76. More importantly, both Dr Wong and Dr Chan had given their opinions on this issue.  Dr Wong opined that the tenderness and pain in Tamang’s right ankle would improve but would not resolve completely; his ability to work as a construction site worker which demands repeated exertion, walking on uneven surfaces and climbing will be compromised; he would be better suited for alternative jobs which do not involve repeated walking or movement of his right ankle.  In contrast, Dr Chun opined the degree of pain is unlikely to be significant; X‑ray showed no post‑traumatic osteoarthritis of the ankle; the prognosis is good; and that Tamang should be able to return to his previous job.

77. Dr Wong’s opinion is equivocal: he merely said that Tamang’s ability to return to his previous job will be compromised and there are better jobs for him; but he did not say in clear terms that Tamang cannot return to his previous job.  Further, his opinion in this respect is based substantially on the subjective complaints of Tamang, which, as mentioned, he had not examined critically at all.  Although Dr Chun did not rule out the possibility that Tamang may still suffer some residual problems, he took the view that he should be able to return to his work.  His opinion is based on a more objective and critical analysis of Tamang’s complaints.  The burden of proof is on Tamang to prove that he cannot return to his previous job due to the residual disabilities caused by the injuries.  I am not satisfied that he has discharged the burden of proof in this respect.

78. Having said that, Dr Chun opined that Tamang should be able to work at the construction site “by this stage”, which means the time when he set out his opinions in the joint report.  The examination took place on 11 June 2013 and the report was dated 29 October 2013.  Dr Chun did not say that Tamang could return to his previous job before he had the chance to examine Tamang.  In addition, in practice, it is reasonable to give some time to a plaintiff to regain his or her confidence to return to the previous job gradually. In this case, it was reasonable for Tamang to resume working as a security guard, which was less strenuous, immediately after the sick leave expired.  For these reasons, I am prepared to award to Tamang a partial loss of earnings from 1 July 2012 to the end of October 2013, say 16 months: ($18,700 – $8,000) x 16 = $171,200.

79. By the time of the joint examination, as mentioned, I hold that he should have been able to return to his previous job.  Further, the period of 16 months since he resumed working after the injury should be sufficient for him to regain his confidence.  During this period, there is no evidence that he experienced any ankle problem which required any form of medical treatments.  Further, after the joint report was made available, he should be aware of Dr Chun’s opinion.  There is no evidence that, up to date, he has tried to return to his previous job.  For all the above reasons, I will not award to Tamang any further loss of earnings after the end of October 2013.

80. Tamang is entitled to claim loss of MPF benefits calculated at 5% of his loss of earnings.  His total loss under this head should be ($210,375 + $171,200) x 1.05 = $400,653.75.

C4. Loss of future earnings and MPF benefits

81. For the above reasons, I am not satisfied that Tamang is entitled to any future loss of earnings.

C5. Loss of earning capacity

82. Mr Sakhrani reminded me that the burden is on Tamang to adduce evidence to prove that there is a real or substantial risk that he will lose his employment in the future, and that there is a real or substantial risk that he will suffer financial loss because of his disadvantage in the labour market (Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B‑D).

83. Tamang is now working as a security guard on a contractual basis.  He is not employed on a permanent basis.  More importantly, as I have held that he should be able to return to his previous job, it is pertinent to consider, if he has returned to such previous job, whether there is a real or substantial, rather than a fanciful, risk that he might lose such job in the future.  It is important to bear in mind that, in such scenario, he will not work for the same employer continuously.  As what happened before the Accident shows, which is common to most, if not all, construction site workers, it is most likely that he will work for different sub‑contractors; and after the job in one particular site finishes, he will need to ask the same employer or look for another employer to give him another job in another site.  In addition, it is also necessary to bear in mind that, as a construction site worker, he will probably be paid by a daily wage and he will not receive any income if he does not or cannot work for any reason.

84. Both orthopaedic experts agreed that Tamang will suffer a small degree of physical impairment and loss of earning capacity.  In practice, as mentioned, one must not exclude the possibility that he will suffer from some ankle problems in the future.  Such possibility will be increased if he returns to work in the construction site, which is a more strenuous job.  It is not fanciful to take the view that he may be prevented from working from time to time because of such ankle problems; and that, as a result, he will suffer financial loss.

85. For the above reasons, I am satisfied that there is sufficient evidence to support an award for loss of earning capacity.  It is impossible to quantify the extent of the risk in monetary terms.  In Lam Kam Fai v Yau Shing Scaffolding Co Ltd, HCPI 894/2011 (31 October 2013), §§98‑100, DHCJ Hartmann awarded $245,000 after a 30% discount (which would have been $350,000) under this head although he found that the plaintiff should have been able to return to work in the construction site.  In Yu Kwok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 313C‑D, Keith JA acknowledged that the assessment is highly speculative; but doing the best he could, he would estimate that the plaintiff would experience 15 days’ unemployment a year as a result of his reduced capacity.  Each case must depend on its own facts.

86. Doing the best I can in the light of the totality of the evidence, I take the view that a lump sum of $250,000 is a fair and reasonable award in this case.  I have cross checked the reasonableness of this sum in the following manner.  Assuming that Tamang is entitled to claim a future loss of earnings on a multiplier/multiplicand approach, the multiplier should be 15.54 (adopting a discount rate of 2.5% and assuming that he will retire at the age of 60).  Applying such a multiplier, a sum of $250,000 will mean $16,087.52 a year.  According to the government statistics and evidence given by Tamang’s then co‑workers, the present daily age of an aluminum formwork erector is now around $1,500 a day.  A sum of $16,087.52 will represent about 11 days’ wages at such daily rate.  In other words, the sum of $250,000 means that Tamang’s risk of financial loss due to his reduced earning capacity is assessed on the estimate that he will lose about 11 days’ wage a year if he returns to work as an aluminum formwork erector in the future up to his retirement.  Such an estimate appears to be reasonable.

87. Hence, I reject Mr Sakhrani’s submission that no award should be made under this head.  I note that Mr Wright suggested that a sum of $120,000 should be awarded under this head on the basis that Tamang should be entitled to future loss of earnings on a multiplier/multiplicand basis.  For the above reasons, I conclude that a fair and reasonable award shall be $250,000.

C6. Other special damages

88. In their closing submissions, Mr Wright sought $9,600 whereas Mr Sakhrani offered $9,200.  The difference is negligible.  I shall award the sum of $9,600.

C7. Deduction for employee compensation received, interest and summary

89. Pursuant to a consent order dated 24 December 2012 in DCEC 1166/2012, Tamang has received $277,000 (by a cheque dated 10 January 2013 payable to the Director of Legal Aid) as employees’ compensation.  He must give credit to this sum.

90. Excluding interest, the damages that I decide to award to Tamang may be summarized as follows:

Head of damages	Amount (HK$)
PSLA	200,000.00
Loss of earnings and MPF benefits	400,653.75
Loss of earning capacity	250,000.00
Other special damages	9,600.00
	_______________
Gross Total:	860,253.75
Less employees’ compensation received	(277,000.00)
	________________
Net Total:	583,253.75
	===============

91. Interest on general damages for PSLA in the sum of $200,000 should be awarded at 2% per annum from the date of writ whereas interest on special damages totalling $410,253.75 (ie loss of earnings and MPF benefits plus other special damages) should be awarded at half the judgment rate from the date of Accident up to the date of the employees’ compensation payment (ie 10 January 2013), and after at the same rate on the same items but less the amount of the employees’ compensation paid (ie a net balance of $133,253.75).  The amount of interest shall be calculated and agreed by the parties’ lawyers.

D. ORDERS

92. For the above reasons, I order that:

(a) The defendants do pay to the plaintiff the sum of $583,253.75.

(b) The defendants do pay interest on the sum of $200,000 at 2% per annum from the date of writ to date of judgment, and after that, at the judgment rate until payment.

(c) The defendants do pay interest on the sum of $410,253.75 at half the prevailing judgment rate from the date of Accident (ie 23 July 2011) to 10 January 2013; and on the sum of $133,253.75 at half the prevailing judgment rate from 10 January 2013 to date of judgment, and after, at the judgment rate until payment.

(d) The defendants do pay the plaintiff’s costs of this action (including all costs reserved) to be taxed if not agreed on the High Court scale.

(e) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

93. I should mention that although I have awarded a net sum which is less than $1,000,000, I will not say that it was unreasonable for Tamang to commence these proceedings in the High Court.  The joint report was only made available in October 2013.  Further, although I have rejected his claim on future loss of earnings, I would not go as far as saying that it was not reasonably arguable.

94. The costs orders made above are orders nisi. Any party who wishes to vary the costs orders nisi shall file a written submission not exceeding 5 pages on A4 paper in no smaller than 14 points (with supporting documents, if any) within 7 days after this judgment is handed down; and the other party who opposes the application shall file a written submission not exceeding 5 pages on A4 paper in no smaller than 14 points (with supporting documents, if any) within 7 days thereafter.  I shall then determine the application on paper.  If there is no application to vary the costs orders nisi within 7 days after this judgment is handed down, they shall become orders absolute.