FUNG CHI HUNG v. YUN KWAN CONSTRUCTION ENGINEERING LTD AND OTHERS

HCPI 1106/2018

[2022] HKCFI 2179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1106 OF 2018

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JUDGMENT

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A.  INTRODUCTION

1.  This is the trial of a personal injuries claim brought by the plaintiff (“P”) against his employer (“D1”), the sub-contractor (“D2”) and the main contractor (“D3”) (collectively, “Ds”) of the construction site of Kowloon Inland Lot 11237, 15 Middle Road, Tsimshatsui, Kowloon (the “Construction Site”). D1 was a sub-contractor of D2 who in turn, was a sub-contractor of D3 at the Construction Site.

2.  Ms Christina Lee appeared for P. Mr Patrick Chong and Ms Terri Ha appeared for Ds.

B.  CASE MANAGEMENT

  PTR Directions

3.  Pursuant to the Order made by K Yeung J on 29 July 2021, parties were required to prepare, inter alia, an agreed chronology, an agreed dramatis personae, an agreed statement of facts and an agreed list of issues and if the parties failed to reach agreement on any aspect of the aforesaid documents, the disputed items and the nature of such disagreement should be marked on the documents concerned. These documents were directed to be filed on or before 11 October 2021.

4.  P duly initiated the process of preparation of the aforesaid documents by providing drafts to D. Eventually, P was forced into filing his own version of the aforesaid documents on 11 October 2021 because there was no reply from Ds.

5.  Save that Ds were agreeable to P’s dramatis personae, they only gave their final version of chronology, statement of agreed facts and list of issues to P in the morning of the first day of trial.

6.  The trial was therefore adjourned initially for 1½ hours for parties to work out an agreed version of the aforesaid documents. Eventually, 2 hours in total of trial time had become wasted.

7.  I invited Mr Chong to show cause as to why a wasted costs order should not be made against the Ds’ solicitors. Mr Chong reasonably submitted that he would not oppose to such an order.

8.  Accordingly, I ordered that costs wasted for 2 hours on the first day of the trial be paid by Ds’ solicitors to P, to be taxed if not agreed, on party-and-party basis and to be paid in any event.

  P’s Summons for leave to file supplemental witness statement

9.  By a summons filed on 27 October 2021, P applied for leave to file his 2^nd supplemental witness statement (“P’s 2^nd Supp WS”).

10.  Ms Lee, on behalf of P, submitted that the supplemental witness statement to be filed was a simple witness statement made by P to exhibit certain photographs that were only discovered by P at a very late stage and hence the late application. P sought to adduce the photographs in response to Ds’ claim that workers were not allowed to walk on the I-beam at the Construction Site and that there were warning signs.

11.  Mr Chong, on behalf of Ds, opposed the application. His grounds were:-

(i)  the application was made extremely late;

(ii)  there was no affidavit evidence explaining the lateness of the application;

(iii)  Ds had no opportunity to verify whether the photographs exhibited in the witness statement depicted the Construction Site or other construction sites;

(iv)  Ds needed to consider whether further discovery was needed as to when and how the photographs were taken or whether there were other photographs showing people with the safety belt fastened; and

(v)  the reason offered in paragraph 7 of P’s supporting affirmation was not a good reason for this late application.

12.  Ms Lee submitted that P was aware of the lateness of the application, but P had adequately explained why he did not come across those photographs earlier. Furthermore, P had provided these photographs to Ds’ solicitors on 20 October 2021 together with the draft witness statement and sought Ds’ consent for their production. There was however no reply from Ds. P therefore issued the summons on 26 October 2021. It was only on the night before the first day of the trial that Mr Chong informed Ms Lee of Ds opposition to the application. In this way, Ds already had 10 days to look into the matter, if there were indeed genuine need, but Ds had never asked P for further discovery. Ms Lee further submitted that the contents of P’s 2^nd Supp WS should not surprise Ds as P, in his previous witness statements, had already mentioned his stance/assertion that workers did work on the I-beam at the Construction Site and the photographs now sought to be exhibited were merely contemporaneous evidence to demonstrate the assertion.

13.  I had considered the submissions of both sides and the authorities relied on by Mr Chong. I accepted the submissions of Ms Lee. I further noted that there was no suggestion of prejudice on the part of Ds resulting from these photographs being admitted in evidence. Although the application was made at a very late stage, there was no disruption to the trial process and appropriate questions can be put by Mr Chong to P if he so wishes. I accordingly granted leave to P in terms of the summons.

C.  THE TRIAL

  Background

14.  The undisputed factual background is summarized in this section.

15.  P was born on 24 August 1963. He was employed by D1 since 2 June 2016 and was assigned to work at the Construction Site from early December 2016.

16.  Wong Hok Yau (“Wong”) was employed by D1 on and off for 4-5 years and signed a new contract on 5 July 2016. He worked at the Construction Site from around August 2016.

17.  On 8 March 2017, P and Wong were working together as a team when the accident happened (the “Accident”).

18.  On 25 August 2017, an Occupational Safety Officer of the Labour Department prepared an Accident Report (the “Accident Report”) after investigating into the Accident. The Accident Report stated that had the contractors either provided a suitable working platform or suitable fall protective measure, the Accident might have been prevented.

19.  On 5 September 2017, both D1 and D3 were summonsed by the Labour Department for failing to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more.

20.  D3 and D1 pleaded guilty to the charge respectively on 12 October 2017 and 26 October 2017 at the Kwun Tong Magistracy (the “Guilty Plea”). D3 was fined HK$22,000 and D1 was fined HK$35,000.

  Positions of the Parties

21.  The crux of P’s case is that he was assigned by D1 to carry out I-beam installation work at the Construction Site with Wong. P and Wong were responsible for rigging and setting the subject I-beam (the “I-beam”) in the correction position, which would then be welded to other I-beam on the Construction Site. The I-beam was lifted up above the bottom of the Construction Site by about 3-4 metres by an excavator to a designated location. Two chain blocks were first installed towards each end of the I-beam to suspend it from the upper I-beam. P had to install a third chain block on the I-beam to provide extra pulling force on the I-beam to facilitate fine adjustment of its position. For such purpose, P had to walk out from the working platform and stand on the far end of the I-beam. Whilst doing so, a chain block, which was used to hang the I-beam, broke. Thus, the I-beam inclined and fell onto the ground. P then jumped away from the I-beam. However, when he landed, the far end of the I-beam rebounded and hit his lower spine resulting in his injuries.

22.  P contends that the injuries sustained were the result of the negligence of Ds and breach of implied terms under P’s employment agreement with D1. In addition, it is also said[1] that Ds were in breach of duties under:-

(i)  the Occupiers Liability Ordinance (Cap. 314) (“OLO”);

(ii)  section 6 of the Occupational Safety and Health Ordinance (Cap 509) (“OSHO”);

(iii)  regulations 38A, 38B(1A) and 38C the Construction Sites (Safety) Regulations (Cap 59I) (“CSSR”) made under the Factories and Industrial Undertaking Ordinance (Cap 59) (“FIUO”);

(iv)  Regulation 18 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (Cap 59J) (“FIUR”) under the FIUO; and

(v)  sections 9 and 14 of the Buildings Ordinance (Cap 123) (“BO”).

23.  D’s position is that they were not negligent and there was no breach of duties on the part of Ds. The Accident was wholly brought about by P as:-

(a)  P (and Wong) was a very experienced rigger/welder who had had many years of prior experience in the installation of I-beams. He was also a holder of a “Green Card”; a “Construction Materials Rigger Silver Card”; and a “Welder Card”;

(b)  P had attended the trainings organized by D1 (as required by D2 and D3);

(c)  more than 50 warning signs were affixed at the Construction Site prohibiting workers from walking on any I-beam;

(d)  D1 had provided mobile elevated working platforms, as well as safety belts to P and Wong for the installation work;

(e)  if P and Wong encountered any difficulty during the course of the installation work, they were required by Ds to approach the safety officers at the Construction Site; and

(f)  despite the aforesaid, P wrongfully proceeded to leave the mobile elevated working platform and walked on the I-beam, thereby causing the Accident.

  Issues

24.  The parties dispute on both liability and quantum.

25.  I find the following broad issues between the parties which will be discussed in turn:-

(a)  How did the Accident occur?

(b)  Were Ds negligent or did Ds breach their respective duty owed to P?

(c)  If so, was P contributorily negligent?

(d)  What is the damages payable by Ds to P?

  Witnesses

26.  P called two factual witnesses: himself and Wong. P gave evidence on how the Accident occurred and the injuries sustained and his condition before and after the Accident. Wong gave evidence on how the Accident occurred and how an untruthful version of the Accident was initially reported. He then explained how he ended up revealing the truth about the Accident to the Labour Department. Wong also gave evidence about his knowledge on the alleged safety measures carried out by Ds. P also has one expert witness on liability, Prof. CW Lau, who produced an expert report and a reply expert report.

27.  P’s expert on quantum, Dr. Johnson Lam Chi Keung, produced a joint report with D’s expert on quantum, Dr. Chun Siu Yeung.

28.  Ds only called 1 factual witness, Mr Chiu Hin Fai (“Chiu”), who was the site engineer of the Construction Site. His evidence was mostly on the condition of the Construction Site and the safety measures that had been carried out by Ds. Ds also rely on an expert witness on liability, Dr. Wong Yum Yin, who produced an expert report.

D.  DISCUSSION

  D.1 How did the Accident occur?

29.  P relied on, inter alia, the Accident Report which stated that:-

“2.1 On the day the accident both I/Ps [injured persons] were assigned by responsible person of Yun Kwan [D1], Mr. FUNG (his full name was not known), to carry out installation of the I-beam on the site (Photo A refers). They were responsible for rigging and setting the I-beam in the correct position, which later to be welded to other I-beams on the site. The I-beam in question was lifted from the ground to the bottom of the site by a mobile crane (Photo B refers). After that, the I-beam was lifted up above the bottom of the site by about 3 to 4 metres by means of an excavator (Photo C refers) to the designated location (Photo D refers). Before the excavator left, both I/Ps suspended the I-beam in question by using 2 chain blocks hanging at the I-beam above the I-beam in question (Photo E&F refers).

2.2 Before welding the I-beam in question with other existing I-beams, both I/Ps tried to conduct fine adjustment of the position of I-beam by pulling the existing chain blocks. Before that, both I/Ps reached the top of the I-beam in question by means of an elevated working platform, which was controlled by I/P WONG. Then both I/Ps left the man cage of the elevated working platform and worked on the said I-beam. At the time of the accident, I/P FUNG was standing on the far end of the I-beam in question to install an additional chain block on the I-beam on the top. This chain block was used to provide extra pulling force on the I-beam in question to facilitate fine adjustment of the position of the I-beam. I/P FUNG could not find a place to attach his lanyard during the operation. I/P WONG also worked on the I-beam in question and tried to pull the existing chain block. However, before I/P FUNG successfully installed the additional chain block, the chain block suspending at the far end of the I-beam suddenly broken. Thus, the I-beam in question inclined and fell onto the ground. As soon as I/P FUNG was aware of the fall, he jumped away to the direction of the far end of the I-beam. When I/P FUNG landed, the far end of the I-beam rebounded and inadvertently hit his lower spine and sustained the aforesaid injury. I/P WONG also fell from the said I-beam to the ground and sustained minor laceration and contusion on right portion of his body. Both I/Ps fell from the I-beam to the ground by about 3 metres.”

30.  As Ds’ witness did not have first-hand knowledge of the Accident. At the beginning of the trial, I sought confirmation from Mr Chong who stated that Ds are simply putting P to strict proof and not putting forward a positive case on how the Accident occurred.

31.  However, during the course of cross-examination of P, Mr Chong suggested to P that the injuries sustained by P were caused by a “slip and fall” by P instead of the rebound of the I-beam. As rightly pointed out by Ms Lee, this has not been Ds’ pleaded case. In fact, this version of the Accident was initially given by Wong to the Labour Department[2]. Wong later explained[3] why he earlier on gave an untruthful version of the Accident. Wong then told the Labour Department the true version of how the Accident occurred. In the course of the evidence of Ds’ witness Chiu, he said this “slip and fall” version of the Accident was initially told by a staff of D2 (Ah Hung) to him. However, Chiu admitted that according to D3's subsequent investigation, they discovered and realized that what the Labour Department described in the Accident Report should be the true version of how the Accident occurred.

32.  After the completion of Chiu’s evidence, Mr Chong took instructions from his clients and informed the Court that Ds no longer take issue on how the Accident took place.

33.  In the circumstances, I find that the Accident occurred in the manner as described by the Labour Department in the Accident Report, the relevant portion of which have been set out in paragraph 29 above. The primary cause of the Accident was thus the snapping of one of the two chain blocks that suspended the I-beam from the one above it.

  D.2 Were Ds negligent or did Ds breach their respective duty to P?

  D.2.1 Site Condition

34.  On this issue, the essence of Ms Lee’s complaint is: had Ds not departed from the sequence of work anticipated in the Building Plans, installation of I-beams would be done level-by-level before excavation of the next level began. In that way, welders and riggers like P would not need to work from height at all.

35.  On this issue, I accept Mr Chong’s submissions that even if there were such departure from the original excavation method (which is disputed), such by itself would not cause the Accident so long as a safe system of work had nonetheless been provided. In other words, it merely created a site environment from which the Court should assess whether a safe system of work had or had not been provided under such an environment. In the circumstances, I find it wholly unnecessary for this Court to resolve the factual dispute as to whether such departure from the Building Plans had in fact been reported and made known to the authorities. This Court will proceed on the basis that Ds had presented a working environment which involved a risk of P and Wong working at a height of above 2 metres.

  D.2.2 Lifting Gear Issue

36.  The nub of Ms Lee’s submission is that the Accident occurred because the chain block used to secure one end of the I-beam broke. As Ds no longer dispute how the Accident occurred, I adopt Paragraph 2.2 of the Accident Report[4] and find that the immediate cause of the Accident was the breakage of a chain block (the “Chain Block”).

37.  It was Chiu’s evidence that the Chain Block was provided by D2. It was axiomatic that D1 as employer of P and Wong in turns provided the Chain Block to them for their work.

38.  According to Chiu, visual inspection on chain blocks was conducted by Ds on a monthly basis, and D2 was responsible for updating the inspection certificate after each visual inspection. Such visual inspection was conducted by all 3 Ds together. The last inspection prior to the Accident was conducted in mid-February 2017 and the inspection certificate should be kept by D3. Chiu said he remembers that the Chain Block and the inspection certificate were given to the Labour Department after the Accident. However, Chiu said he does not know who gave the Chain Block and the inspection certificate to the Labour Department.

39.  Nonetheless, paragraph 3.7 of the Accident Report clearly stated that the Labour Department could not locate the Chain Block nor the elevated working platform in question. Neither did the Accident Report mention having received inspection certificate concerning any chain block. I do not find Chiu’s evidence of his “recollection” reliable at all. It is inconceivable that the Labour Department would say the opposite if the Chain Block was indeed provided to the department. In fact, P was subsequently able to locate a photograph of the Chain Block which was circulated in a Whatapp group amongst the workers of D1[5]. It is clear from the evidence of Wong and Chiu that both Ah Hung of D2 and Ah Kit of D1 tried to hide the true cause of the Accident by describing it as a “slip and fall” incident. There must have been an attempt to hide the subject Chain Block and hence it was not located by the Labour Department.

40.  I further reject Chiu’s evidence for the following reasons:

(a)  His evidence about his alleged “recollection” was extremely vague. He could not even remember who gave the Chain Block and the inspection certificate to the Labour Department. In any event, even if the Chain Block could no longer be found, D3 could locate its records or copies of the inspection certificates pertaining to the Chain Block by cross-checking the serial number of the remaining chain blocks with the inspection certificates that are still in D3’s possession. However, Ds have failed to produce such relevant inspection certificate and no reason was given.

(b)  It is also incredible for the Labour Department not to have mentioned the relevant inspection certificate if they were indeed provided by Ds to the department. Furthermore D2, who was responsible for updating the inspection certificates, provided no such evidence and no explanation for such failure was given. Visual inspection was said to have been conducted by all 3 Ds together. None of Ds produced any record of such alleged inspection and no explanation for such failure has been offered.

(c)  The Labour Department would not have specifically stated that they could not locate the Chain Block if the same was indeed given to them by Ds as suggested by Chiu.

41.  From the photographs of the Chain Block, I am of the view that the Chain Block would not have snapped if it had been maintained in good condition. I am also of the view that defects could have been detected if Ds had in fact carried out regular and responsible safety inspections. Ds have however provided no evidence about such inspections other than the vague evidence of Chiu which I have found to be unreliable.

42.  In the circumstances, I find on the balance of probability that Ds have failed to ensure that the Chain Block was in good condition, of sound material, of adequate strength, free of patent defects and/or safe to use.

  D.2.3 Specific Instructions and Supervision

43.  P and Ds gave conflicting evidence in this respect.

44.  It is Chiu’s evidence that:-

(a)  he had personally instructed all of the riggers at the Construction Site (including P and Wong) to:-

(i)  use the mobile elevated working platform (“MEWP”) and stay inside the MEWP to carry out the task of attaching an additional chain block to the I-beam in order to enable fine adjustment for welding;

(ii)  if the task could not be completed without walking along the I-beam, seek assistance from the persons in charge;

(b)  warning signs were placed around the Construction Site, warning the workers not to walk on I-beams;

(c)  the induction training course specifically instructed attendees that they were prohibited from walking on I-beams and P had attended the induction training course 2 months prior to the Accident;

(d)  Chiu personally interviewed P when he showed up at the Construction Site and gave P a “reader digest’s version” of the induction training course at the spot;

(e)  there were daily morning briefings to the workers, reminding them of the safety measures to carry out assigned jobs, in particular, working in the MEWP and the prohibition on walking on I-beams; and

(f)  workers that were caught walking along I-beams would be penalized by D3.

45.  P disagrees with most of Chiu’s assertions, in particular, it is P’s evidence that:-

(a)  he never talked to Chiu personally and Chiu never personally instructed him or the workers at the Construction Site as he would not have contact with normal workers and would only talk to Kit Lo (“Kit”) (D1’s person in charge);

(b)  Kit simply asked P and other workers to get their work done. He did not teach P or other workers what to do as he knew they were experienced;

(c)  in making alignment of I-beams, workers would sit on the I-beam. They would not stand because that would be dangerous and they could sit down since they were hooked with safety belt;

(d)  no one has ever told P not to carry out alignment works by sitting on I-beams;

(e)  no one has told P not to sit on the I-beam when MEWP was provided;

(f)  as no one had told them otherwise, P and Wong had been doing the work in the same manner since they joined the Construction Site;

(g)  there was a simple induction training course in which workers were told not to drink or gamble and they had to wear safety helmet, reflective vest, safety shoes and safety belts. However, there was no training about rigging or the use of MEWP;

(h)  there was never any “daily morning briefing”. Instead, every Monday there was a session where workers were gathered to do some stretching exercise together prior to start of work and some general safety reminders would be given;

(i)  he had seen the warning sign at the Construction Site warning him not to walk on I-beams. Whilst accepting walking on I-beams was prohibited, P alleges that working on I-beams was not prohibited by Ds;

46.  Wong’s evidence collaborated with that of P. In particular:-

(a)  he does not know Chiu personally;

(b)  whilst he accepts that he was required to attend a safety lesson on the first day of work, he does not remember if he was given a leaflet or a book;

(c)  he remembers that during the safety lesson, workers were taught that they should not walk below something which was hanging, but he does not remember workers being told not to walk or work on I-beams;

(d)  there was no daily morning briefing. Instead, workers were gathered to do exercise together once a week;

(e)  no one told him about the safety measures of working at height and at MEWP and not to work on I-beams;

(f)  he did not see warning signs warning workers not to walk on I-beams, but he remembers seeing signs reminding workers to wear safety belt.

47.  I prefer the evidence of P and Wong on this point. P and Wong answered questions in a direct, clear and forthcoming manner, making concessions where appropriate. Whilst on the other hand, Chiu, was at times evasive during his cross-examination and gave new and inconsistent evidence on important matters which were not covered in his 2 witness statements.

48.  For example, it was revealed only during his cross-examination that he was at the Construction Site at the time of the Accident and was notified of the Accident immediately after it took place. According to his evidence, he went to the location of the Accident immediately and saw P sitting on the ground. Despite the fact that P was sitting right in front of him, he asked Kit instead of P what had happened and Kit told him his worker (P) was injured and could not walk up to the ground level. Chiu then went up to the ground level and personally called for an ambulance. On 9 March 2017, the day following the Accident, Chiu asked Ah Hung, another safety supervisor, about the Accident. Ah Hung told Chiu that P slipped when he was moving a chain block and when he slipped, his coccyx hit against the I-beam. When Chiu was asked why the aforesaid matters were not mentioned in his witness statements, he said because he later knew that the “truth” was not as told by Kit. I then asked Chiu what was the “truth” that he learnt. It was only at that point when Chiu revealed that pursuant to an investigation conducted by D3, Ds were of the view that the findings made by the Labour Department in the Accident Report reflected the true situation of the Accident. Again, this was not mentioned in his witness statements.

49.  I was further astonished by Chiu when he said that 2 other I-beams had been installed at the CS6 level (same level as the subject I-beam) prior to the Accident and that he personally supervised the installation of these 2 I-beams. Chiu said that on those 2 occasions, the workers had remained in the man cage of the MEWP at all times. When I asked him why such important evidence was not mentioned in his witness statements, Chiu said he could not provide any reason.

50.  I also accept Ms Lee’s submission that Ds’ case had always been that there was a “blanket prohibition” against walking on I-beams at the Construction Site, until Chiu was shown photos capturing D3’s own foreman standing on an I-beam. It was only at that point when Chiu said that instead of a strict prohibition not to walk on I-beams, the prohibition only applied to I-beams above 2 metres from the ground and he had taught the workers at the Construction Site about this “2 metres concept” at the induction training course. I agree with Ms Lee that this qualification given in his oral evidence was inconsistent with paragraph 29 of his witness statement. There is no documentary evidence adduced to support his assertion that he had made this “2 metres concept” known to P and other workers at the Construction Site. Chiu originally sought to rely on a Safety Manual[6]. I then pointed out that there was no reference to this concept of “2 metres” in the document. Chiu then retracted and said he had orally instructed the workers about this concept during lessons that he gave them.

51.  I find it inherently improbable that Chiu would omit the above important matters from his 2 witness statements if such evidence were indeed truthful. All in all, I do not find Chiu to be a credible and reliable witness. In areas of conflict between Chiu’s evidence and the evidence of P and Wong, I have no hesitation preferring the evidence of P and Wong.

52.  I further accept Ms Lee’s submission that the photographs exhibited in P’s 2^nd Supp WS have proven the existence of a rampant practice at the Construction Site where foremen and workers alike were allowed to get onto the I-beams when their work so required. I find that Ds did not actively impose or enforce the “blanket prohibition” or the “2 metres concept” as alleged by Chiu.

53.  I also observe that there is no documentary/contemporaneous evidence to show that Ds had instructed or warned P not to work on I-beams. Although I am prepared to accept that some warning signs were put up at the Construction Site, they were merely signs prohibiting workers to use I-beams as walkways, instead of prohibiting workers to carry out works on I-beams.

54.  Accordingly, I find that Ds have failed to provide reasonable training and supervision to P on his safety while performing the rigging work at the Construction Site.

  D.2.4 Safe System of Work

55.  On this issue, I again accept P’s evidence as I find him to be an honest and credible witness. Mr Chong pointed out various discrepancies between P and Wong in respect of their evidence on the scope of work involved and what exactly were they doing whilst on the I-beam. In my view, those discrepancies were mostly on points of fine details which the witnesses could have honestly held different perception and recollection. They do not in my view affect my assessment of P’s credibility and reliability. I accordingly accept P’s evidence that :-

(a)  only 1 MEWP was provided to P and Wong. As there was only 1 man cage for each MEWP, it was impossible for P and Wong to work at the 2 ends of the I-beam at the same time;

(b)  as P did not know how to operate the MEWP, he could not have used the MEWP to get to the fishtail end of the I-beam when Wong was out of the man cage carrying out his task on the I-beam nearer to the centre. In any event, the MEWP could not be moved to the fishtail end because there was a vertical king post on the right side. The vertical king post, the right chain block and the hanging chain made the space too narrow for the MEWP to pass through;

(c)  I agree with P that he could not have finished the alignment/adjustment work inside the man cage, for the reason that:-

(i)  the clearance between the I-beam in question and the I-beam above was 1.47m. The man cage was about 1.2m high;

(ii)  considering the position of the lifting arm of the elevated platform that was connected to the man cage, it was not possible for the man cage to reach the area between the said 2 I-beams;

(iii)  even if the man cage was able to be squeezed into the space between the 2 I-beams, it would then be wholly impracticable for P to carry out the pulling and alignment task since he could not stand up at all;

(iv)  if the man cage were to be positioned at a distance and hence an angle from the I-beams due to the obstructions (by the king post, the right chain block and the hanging chain), P would have to carry out the adjustment work with his upper body leaning out of the man cage whilst exerting forces. In that case, there would be a considerable risk of P falling out from the man cage;

(v)  In the circumstances, P had no practical alternatives other than to carry out his works on the I-beam;

(d)  he did anchor the lanyard of his safety belt on a chain block when he first got onto the I-beam. However, at the time of the Accident, he had to undo the short lanyard of his safety belt to get another chain block from the MEWP as the safety belt was not long enough. And when he was carrying the chain block to a position towards the far end of the I-beam, he had no free hand to secure his safety belt to any anchor again.

56.  P’s manners of work and why he carried out his work in such ways were recorded in the Accident Report[7]. The maker of the Accident Report was one Mr. Chan, an Occupational Safety Officer. In giving his observations, Mr. Chan apparently did not regard P’s manners of execution, namely not staying at all times inside the man cage, as in any way unreasonable or uncalled for.

57.  Ds’ contention is that the installation work ought to be done from the working platform and P should have carried out his task within the man cage. Mr Chong submitted that, inter alia:-

(a)  P raised the complaint for the first time during his cross-examination that it was difficult to carry out the adjustment of the I-beam by tightening or pulling the lifting chain from inside the man cage;

(b)  it was Chiu’s evidence that the pulling could be done inside the man cage. He said that the MEWP should be stopped when it became parallel with the I-beam and that it should be stopped right next to the I-beam. In this way, the pulling could be done from an angle and it should not be heavy since the I-beam had already been hung. Ds thus submitted P and Wong had exaggerated the difficulty of adjusting the I-beam inside the man cage.

58.  I disagree with Mr Chong’s submissions. The issues here are:-

(i)  whether P and Wong could have carried out the installation work (including wrapping, hooking and alignment/adjustment work) all inside the man cage; and

(ii)  if not, whether Ds have provided a safe system of work for P to work on the I-beam.

59.  P and Wong were assigned to install the subject I-beam which would undoubtedly include the alignment/adjustment work. It has always been P’s case that it was impossible for P to install the I-beam within the man cage, and that would also undoubtedly include the alignment/adjustment work. P was thus not putting forward a new case. P was merely responding to a specific proposition put by Counsel in cross-examination which he disagreed and further explained his reasoning.

60.  Furthermore, I have found Chiu not a credible and reliable witness and therefore I rejected his evidence on this point. In particular, I have rejected his evidence that he had actually supervised or witnessed other workers carrying out the same task whilst staying in the man cage at all times.

61.  I have no hesitation preferring P’s evidence on this point. I agree with P that if he were to carry out the alignment/adjustment work inside the man cage in a position envisaged by Mr Chong, he would have to lean his upper body out of the man cage and exert force downwards, which could be dangerous as he would risk falling out from the man cage. P had provided a rather similar explanation to Mr Chan to explain why he could not install the third chain block whilst staying inside the man cage[8].

62.  In the circumstances, I reject the evidence of Chiu and the submissions of Mr Chong that P could and should have carried out his work inside the man cage at all times. I also reject the evidence of Chiu about having instructed workers (including P and Wong) to work at all times inside the man cage of the MEWP.

63.  In the Accident Report, Mr Chan gave the following observations:-

“4.5 I/P Fung further explained the reason of working on the I-beam involved in the accident instead of staying inside the elevated working platform for installation of the additional chain block. The clearance between the I-beam in question and the I-beam above was 1.47 m. The man cage was about 1.2 m high. Considering the lifting arm of the elevated platform that was connected to the man cage, it was not possible for the man cage to reach the area between the said 2 I-beams. If I/P Fung worked within the man cage, he had to hold the chain block of about 40 pounds with both of his hands and had his upper body leaning out of the platform. In that case, I/P Fung could not balance himself and might fall out from the man cage.

4.6 In view of personal safety protection, I/P Fung recalled that he wore safety helmet, safety boots, reflective vest, leather gloves and safety harness with a lanyard of 1.2 m long (Photo H refers). Since the location where I/P Fund tried to hang the additional chain block was far away from the man cage, he could not attach his lanyard to the man cage. Therefore I/P Fung could not attach the lanyard to any place while he was working on the I-beam. I/P Wong also wore a safety helmet and safety harness with a lanyard. I/P Wong attached his lanyard to the chain block in question. However, neither independent lifeline nor eyebolt was provided. No safety net was provided underneath the I-beam in question. The chain block in question could not serve as a suitable anchorage point because its purpose was to suspend the I-beam underneath. In addition, it could not serve as an independent and continuous fall protection. No other suitable anchorage point could be found. Thus, both I/P’s fell from the I-beam to the ground by about 3 metres. Had the contractors either provided a suitable working platform or suitable fall protective measure, the accident might have been prevented.

5. Prevention Recommended

5.1 Contractors should provide and ensure the proper use of a suitable scaffold such as double-row bamboo scaffold or tubular scaffold with working platforms to prevent any person from falling from a height of 2 metres or more.

5.2 Where the provision of working platform is not reasonably practicable, set up a fall arresting system by providing every worker/employee with a suitable safety harness which should be continuously attached to a suitable and secure anchorage point, any independent lifeline or a fall arresting system from a safe place throughout the work; and take all necessary steps to ensure that the fall arresting system is properly used by every worker/employee concerned.” [emphasis added].

64.  P sought to rely on the Guilty Plea to prove negligence on the part of D1 and D3. Both D1 and D3 were charged with the offence of failing to take adequate steps to prevent person from falling in contravention of Regulations 38B(1), 68(1)(a) and 68(2)(g) of CSSR and FIUO.

65.  In entering into their Guilty Plea, D1 and D3 respectively agreed to the brief facts[9] which:

(a)  set out a summary of how the Accident occurred in line with what was set out in paragraph 29 hereinabove;

(b)  recited the investigation conducted by Mr Chan of the Labour Department;

(c)  recited the findings of Mr Chan, in particular that:

(i)  when Wong and P used the MEWP to where the I-beam was suspended, they climbed up to the I-beam to conduct their work. The reason was because the MEWP could not reach the gap between the two I-beams for such work to be conducted;

(ii)  there was no safety net installed below the said I-beam;

(iii)  Wong and P wore safety belt. However, there was no independent lifeline, eyebolt or other suitable harness provided at the Site;

(iv)  Mr Chan (an expert of the Labour Department on industrial safety) gave the following opinions in respect of the Accident:

(I)  no suitable working platform, fencing (圍欄), protective barrier (護欄) or fall arresting system (繫穩裝置) had been provided to Wong and P for the execution of the aforesaid I-beam installation work; and

(II)  when Wong and P worked on the suspended I-beam, they could fall to the ground from a distance of about 3 metres.

(d)  set out the fact that D1 and D3 failed to take adequate steps at the Site to prevent persons, i.e. Wong and P, from falling from a height of no less than 2 metres.

66.  Pursuant to section 62 of the Evidence Orinance (Cap 8), the convictions are admissible evidence in these proceedings. It is trite law (see Lee Yam Kan v. Ng Pui Kuen & ors [2016] 6 HKC 318 at §§12-15) that the criminal convictions shift the legal burden of proof. Hence, the legal burden is on Ds to prove that they had not breached the statutory duties. Furthermore, the weight that should be given to the criminal convictions must depend on the circumstances to be decided by the judge at the civil trial. It is however helpful to note the dictum of Rhind J in Lam Yin Mee & oths. [1985] HKC 437, at 440I-441B:-

“…Lord Diplock has remarked in Hunter v. Chief Constable of West Midlands [1981] 3 All ER 727, at 735h-736a the uphill struggle in practice faced by those seeking to overcome the presumption raised by a conviction. That uphill struggle is bound to be at its most arduous for those who have unqualifiedly admitted their guilt.” [emphasis added]

67.  Mr Chong accepted that the burden is on D1 and D3 to prove that the convictions were erroneous. It suffices for me to say that D1 and D3 have utterly failed to discharge their burden of proof for the following reasons:-

(a)  Chiu was the only factual witness called by Ds. In his witness statement[10], Chiu said that “it was D1’s and D3’s mistaken belief that from the economic point of view, it was better to be fined several thousand dollars than to pay for high costs of obtaining legal advice and engaging legal representatives to defend their respective charges in court. In fact and in law, D1 and D3 had not contravened the Regulations.”. Chiu admitted that he was not the representative of either D1 or D3 at the time they pleaded guilty at the Kwun Tong Magistracy. Chiu’s evidence of why D1 and D3 chose to plead guilty and agreed to the brief facts could only be hearsay evidence based on what he heard from others; and

(b)  No hearsay notice has been filed in respect of this evidence and there was no explanation offered for such failure. Neither has D1 or D3 offered any explanation as to why their representatives (who pleaded guilty for them and agreed to the brief facts) could not and should not have been called as witnesses in the light of their desire to challenge the convictions and their legal effects. In the circumstances, I refuse to exercise my discretion to admit the hearsay evidence of Chiu on this matter and in any event would not place any weight on this aspect of Chiu’s evidence.

(c)  Mr Chong argued that the convictions were equivocal by reason of the mitigations put forward after the convictions. First of all, in respect of D1, the only mitigation put forward was: “after the accident, our company had immediately employed additional safety officers to ensure site safety”[11]. With respect, there is nothing equivocal about D1’s plea of guilty and its agreement to the brief facts.

(d)  Secondly, in respect of D3, it was said[12]: “at the time of the accident, we had provided an MEWP to the workers…we had provided relevant trainings about safety in work at heights…Everyday, our person in charge of management supervised the site… We had previously issued written warning to [D2]…the two workers had chosen a convenient method to execute their work by climbing outside the man cage.”. When the learned magistrate ascertained from D1’s representative whether D1 would admit that there was flaw in their supervision, the said representative gave an affirmative answer. In my view, again there was nothing equivocal about D1’s admission that they had failed to take adequate steps to prevent person from falling in contravention of the Regulations. Failure to exercise proper supervision is one form of failing to take adequate steps to prevent such incident. It is true that D1 mentioned the provision of an MEWP. Yet, it was also stated in the agreed facts that P had to work on the I-beam because the MEWP could not reach the gap between the two I-beams. D1 certainly did not dispute that when it agreed to the brief facts. In any event, I have found P and Wong to be credible and reliable witnesses and have preferred their evidence on this issue. Furthermore, no evidence of the alleged written warning to D2 had been adduced.

(e)  In the circumstances, I reject the submissions of Mr Chong and find that D1 and D3 have failed to discharge the legal burden of proving that D1 and D3 had not breached the relevant statutory duties.

68.  I accordingly find that D1 and D3 did breach the statutory duties imposed on them by Regulations 38B(1), 68(1)(a) and 68(2)(g) of CSSR and FIUO. The essence of contravening these Regulations lies in their failure to take adequate measures to prevent workers from falling from heights. This is one facet of how D1 and D3 had failed to provide a safe system of work for P. There is no evidence adduced to show that D2 had provided another system of work for P. Accordingly, I also find that D2 had failed to provide a safe system of work for P. In making these findings, I did not consider expert evidence necessary to assist me to decide on the issue of liability. I am satisfied and in fact, have disposed of the question of liability basing on my understanding and assessment of the general factual evidence. As such, I do not consider it necessary to dwell into Ds’ complaints in relation to expert evidence. Neither do I consider it necessary to resolve the differences in opinion expressed by the parties’ experts on liability.

E.  CONCLUSION ON LIABILITY

69.  On the basis of the aforesaid, I find that Ds were negligent in failing to:-

(i)  ensure the Chain Block was in good condition and/or free of latent/patent defects and/or safe to use;

(ii)  provide reasonable training and supervision to P on his safety while performing the work at the Construction Site; and

(iii)  provide a safe system of work to P.

70.  I am also of the view that P’s injuries were sustained as a result of the negligence on the part of Ds.

71.  Given my finding on negligence, there is no need for me to analyse Ds’ breach of statutory duties one by one. It suffices for me to say that:-

(a)  Ds are not liable under the OLO as it is trite that the common duty of care under the OLO is limited to dangers arising from the state of premises, but not dangers arising from activities on land;

(b)  I have found that D1 and D3 have failed to discharge the burden of proving that they had not breached those Regulations set out in their Guilty Plea;

(c)  Given my finding that Ds have failed to ensure the Chain Block was in good condition, sound material, adequate strength, free of patent defects and/or safe to use, Ds are further in breach of Regulation 18 of the FIUR;

(d)  P’s reliance on the BO is misplaced as the departure from the original excavation method or the Plans was not a cause of P’s injuries.

F.  CONTRIBUTORY NEGLIGENCE

72.  Ds invite the Court to find P’s act to be i) a novus actus convenien and 100 % contributorily negligent; or ii) at least 75% contributorily negligent, referring to Jayes v IMI (Kynoch Ltd) [1985] ICR 155; So Chung Kwong v Ho Kuen & Anor [2000] 3 HKLRD 241; Ng Tim Yip Kevin v Chan Ho Yin CACV 285/2007, unrep., 23 October 2008; Poon Hau Kei v Hsin Chong Construction Co Ltd [2004] 2 HKLRD 442; and Wong Wing Chow v Lee Wing Hang Patrick [2003] HKLRD (Yrbk) 414.

73.  I am of the view that it would be unjust to find any contributory negligence given my finding that Ds failed to provide a safe system of work and rejected Ds’ case of having provided adequate training, instructions and supervision. As explained by Recorder H Wong SC in Gurung Krishna Jang v Precious Swine Ltd (HCPI 486/2009, unrep., 16 November 2010) at §43:

“In this regard, it is important to emphasize that the duty on the part of the employer is personal to him and it does not lie in his mouth to say that the employee could equally have foreseen the risks associated with the unsafe system of work, and could have designed for themselves a safe system of work.”

74.  In any event, I have found that the primary cause of the Accident is the breakage of the defective Chain Block. Ds were solely responsible for maintaining a good condition of the Chain Block and for providing safe tools to the workers.

75.  It is also trite law[13] that once a material breach of statutory duty is found in addition to liability for negligence, the plaintiff’s contributory negligence is to be judged at a less exacting standard that that for ordinary negligence.

76.  Accordingly, I find that Ds did not make out a case that P is liable for any contributory negligence.

G.  QUANTUM

77.  The parties have reached agreement on special damages in the sum of HK$29,720. The main issues in dispute are therefore (i) pain, suffering and loss of amenities (“PSLA”); (ii) pre-trial loss of income and MPF; (iii) future loss of earnings and MPF; and (iv) loss of earning capacity.

  Treatments and assessment by the experts

78.  P consulted the Accident & Emergency Department of Queen Elizabeth Hospital (“QEH”) immediately after the Accident. X-ray examination showed collapse of L1 lumbar spine with no obvious fracture on the chest and pelvis. Physical examination showed tenderness over the lower back.

79.  The orthopaedic experts Dr Lam Chi Keung Johnson for the Plaintiff and Dr Chun Siu Yeung for the Defendants agree with the referral letter from QEH that P had a wedge fracture of L1 and contusion of coccyx from the Accident.

80.  P was hospitalized in QEH up to 14 March 2017. Upon finding no lower limb neurological deficits, P was given a thoraco-lumbar brace which he wore for a couple of months. P was then referred for physiotherapy at the Yan Chai Hospital (“YCH”) and had physiotherapy treatment from 21 March 2017 to 17 October 2017, at which point P reported 40% improvement. P still had tenderness and tightness at the lumbar spine upon palpation and his range of trunk flexion and extension had improved to 2/3 of normal from 1/2 of normal. P had to walk with a stick at that time.

81.  P was given sick leave from 3 August 2017 to 26 November 2017 by the Orthopaedic and Traumatology Department of the QEH.

82.  In addition to seeking treatment at QEH and YCH, P made 120 visits to various clinics, including the Lady Trench General Out-Patient Clinic (“GOPC”), the Mrs. Wu York Yu GOPC and the Princess Margaret Hospital (“PMH”) occupational therapy department and orthopaedic department.

83.  In April 2018, a CT scan of the lumbar spine was conducted on P and he had a compression fracture of the L1 extending to the left lateral aspect of the superior end plate with no retropulsion of the fractured vertebral body. The spinal canal was patent and there was no perivertebral soft tissue swelling.

84.  Physical examination showed that P walked slowly with a stick, but lumbar flexion, external/lateral rotation were all normal. There was tenderness at the L1 with paraspinal muscle spasm and trigger points. Tenderness was also elicited more on the left at the sacrococcygeal region and bilateral sacroiliac joint region. There was no lower limb neurological deficit at this examination.

85.  Between 20 November 2018 and 20 December 2018, P received occupational therapy at QEH.

86.  P started seeing a clinical psychologist of PMH from 1 February 2019. A brief report stated that he had adjustment reaction with mixed anxiety and depressive features. His mood was reactive to physical symptoms and psychosocial sequelae after the injury.

87.  X-rays conducted on P by orthopaedic experts showed that the wedge fracture L1 had healed with a compression ratio of 43%. The X-rays also showed that there were some degenerative changes in the lumbar spine.

88.  On physical examination, tenderness was reported at L1 and the lower lumbar spine, sacrum to the coccyx (worst pain), bilateral buttocks and bilateral paraspinal areas with guarding and tightness. For the lower limbs, the straight leg raising test was 70° both sides while the flip test was 80° bilaterally. Sensation, power, tendon reflexes of the knees and ankles were all normal bilaterally. There was no muscle wasting in the lower limbs. P tested positive for 2 Weddell’s simulation signs.

89.  A joint medical report dated 8 August 2019 (the “Joint Medical Report”) was prepared by the two experts after their examination of P on 21 May 2019. Dr Chun advised that P should have reached maximum medical improvement when he completed his physiotherapy on 24 October 2017. The fracture should have healed in 6-8 weeks or up to 3 months at the most. Dr Chun found the posterior portion of the L1 intact and concluded that the spinal mechanics are not significantly altered. He apportioned 30% of P’s current impairment to the pre-existing condition.

90.  Dr Lam disagrees and stresses that the compression fracture resulting in a 43% compression ratio meant a change in the spinal mechanics, resulting in moderate to severe pain from the L1 area. He advised that P would not be able to return to work as a rigger but would nevertheless be able to do lighter duties with his back condition.

  Degeneration

91.  P suffered from a low back sprain back in 2014. However, there is no further information of how clinically and functionally significant was the sprain.

92.  In the Joint Medical Report, Dr Chun notes and opines as follows:

“134. For the L1 wedge fracture healed, without neurological deficit and the coccygeal contusion there is 10% impairment of the whole person. The loss of earning capacity is 10% for the parties’ reference. Apportionment of 30% due to prior low back injury should be appropriate from the 10% whole person impairment and loss of earning capacity i.e. 7% due to the alleged injury.”

93.  I note that Mr Chun further opines that for back pain specifically, “the degenerative process is continuing”, and “is a recurrent condition that comes and goes over one’s life time being influence by a multitude of factors”.

94.  However, Ms Lee pointed out and I accept that Dr Chun did not pinpoint any progress of the degeneration from the X-ray records of P taken at the time of the Accident and the time of the joint examination when there was gap in time of more than 2 years. This would tend to suggest that degeneration, though pre-existing, was not advancing rapidly thus casting doubt on Dr Chun’s projection that low back pain would have appeared at any time.

95.  On the other hand, Dr Lam notes and opines as follows:

“139. The subject accident itself should account for about 70% (if the 2014 injury was serious, and patient had significant, symptomatic (e.g. needing frequent medical attention) and rather disabling (e.g. need to take frequent sick leaves) degeneration of low back in the period, say 1-2 years before the subject accident) to 90% (if the 2014 injury was mild with good recovery, and patient was quite asymptomatic/minimally symptomatic clinically (e.g. no need for medical attention) and functioning well (e.g. cope with job well, without need to take rather frequent sick leaves) in the period, say, 1-2 years before the subject accident);

The pre-existing conditions should account for about 30% (if the 2014 injury was serious, and patient had significant, symptomatic (e.g. needing frequent medical attention) and rather disabling (e.g. need to take frequent sick leaves) degeneration of low back in the period, say, 1-2 years before the subject accident) to 10% (if the 2014 injury was mild with good recovery, and patient was quite asymptomatic/minimally symptomatic clinically (e.g. no need for medical attention) and functioning well (e.g. cope with job well, without need to take rather frequent sick leaves) in the period, say, 1-2 years before the subject accident)”

96.  Further as Dr Lam advised it was important to have clinical and functional correlations for the pre-existing degeneration (original emphasis). There was no medical record showing that the Plaintiff needed to have active treatment for his back condition prior to the accident. Functionally he was able to do the heavy duties of a rigger.

97.  Ms Lee invited me to find that no apportionment is necessary whilst Mr Chong invited me to adopt the advice of Dr Chun and apportion 30% to P’s pre-existing condition.

98.  P’s spinal problem is not uncommon especially amongst labourers and construction workers. In view of his age, the nature of his job and the severity of the degeneration, I am of the view that it is very likely that P, had the Accident not occurred, would nonetheless suffer some back-related disability in his late-50s. I find that P’s pre-existing conditions fall within the second category as described in the leading authority of Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523. However, in the present case, the evidence is less certain than in Chan Kam Hoi as to when P’s pre-existing condition would have suffered deterioration in any event. Therefore, I am of the view that a discount of 25% is appropriate.

  PSLA

99.  Ms Lee submits that the injuries should fall within the “serious” injury category, and seek an award of HK$600,000, relying on Choi Wing Chai v Li Bing t/a Shun Lee Building Material Co. [1997] HKEC 393; Yuen Siu v Lau Choi Ha v Anor [2003] HKEC 685; Ha Kit Ying v Ng Ka Ki [2009] HKEC 325; Wo Chun Wah v Chau Kwei Yin [2018] 3 HKLRD 897.

100.  Mr Chong contends that the injuries fall below the “serious” injury category and should only attract an award of no more than HK$300,000, referring to Chong Ko Chuen v Joint Well Metal Co Ltd [2019] HKCFI 827; Lai Jianxing v Sakoma (HK) Ltd [2011] 5 HKLRD 329.

101.  After having considered the above authorities and counsel’s submissions, I consider the injuries sustained by P fall below the “serious injury” category. I consider that the appropriate award should be HK$300,000. After discounted by 25% to reflect the pre-existing condition, I award HK$225,000.

  Pre-trial Loss of Income & MPF

102.  The average monthly salary of P before the Accident was HK$38,802.83. This was admitted by Ds at paragraph 22(b) of the Amended Defence. I note that Ds are trying to put forward another figure at this stage. However, they are not entitled to retract from their admission in the pleadings without proper application to the Court.

103.  The average monthly salary of P before the Accident has reached the maximum mandatory contributions of MPF, i.e. HK$1,500 per month.

104.  In respect of the period of sick leave, it is well-established that the Court is not bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms, such as pain, reported to the doctors by the P: Lee Kai Yu v Hong Kong Kwong Tai Builders [2020] HKCFI 157 at paras 49-50 per DHCJ Dawes SC.

105.  In the present case, P was given intermittent sick leave from 8 March 2017 to 29 August 2019, i.e. 28 months and 21 days. In this regard, Ms Lee submitted that sick leave from 8 March 2017 to 8 November 2019, i.e. 32 months, would be appropriate to allow P to seek alternative employment, considering P’s age, education level and past working experience. On the other hand, Mr Chong submitted that sick leave of 32 months is wholly excessive in the present case.

106.  At paragraph 110 of the Joint Medical Report, Dr Chun opines that:-

“110. Dr. Chun: His condition had reached maximal medical improvement on 24/10/2017 and he had completed his PT by mid-October 2017. Thus the DOT clinic arranged MAB. And the sick leave given to 26/11/2017 should be well adequate. His 120 times GPOCs attendance were most likely for sick leave shopping and the subsequent sick leave not warranted and not justified and inappropriate…”

107.  On the other hand, Dr Lam endorsed the sick leave given by the treating doctors:-

“141. Dr. Lam: Regarding the duration of sick leave, Dr. Lam opines that considering the severity of injuries, presence of L1 fracture, need for rehabilitation…the duration of sick leave issued by Mr. Fung’s treating specialists/doctors who assessed him from time to time is appropriate and should be endorsed.”

108.  I agree with Mr Chong’s submission and prefer Dr Chun’s opinion on this point. I find a sick leave of 32 months sought by P excessive. However, considering P’s background, whilst noting Dr Chun’s opinion that sick leave until 26 November 2017 was adequate, I would allow slightly more time as a reasonable buffer and to cater for adjustment and fining a new job.

109.  I add to the 8 months and 2 weeks an additional 2 months and 16 days. In conclusion, I allow sick leave of 11 months, at the monthly salary of HK$38,802.83.

110.  After the sick leave period, P is expected to take reasonable steps in finding alternative employment to mitigate his loss.

111.  Again, Dr Chun and Dr Lam gave conflicting opinion in this regard. Whilst Dr Chun was of the view that P could return to work as a rigger, Dr Lam opined that P would not be able to return to work as a rigger but would nevertheless be able to do lighter duties with his back condition.

112.  On the totality of the evidence, I am of the view that P would not be able to return to his previous job as a rigger. However, I agree with Mr Lam’s opinion that P could work as a security guard.

113.  I accept Mr Chong’s submission that there is no reason why P would not be able to work full-time as a security guard and P has not suggested any medical opinion his claim that he could not return to full-time employment.

114.  I take it from Mr Chong that the monthly wage of the 50^th percentile of full-time security guard is HK$14,000 (this was not opposed by Ms Lee). MPF would therefore be HK$700, and the total earnings would be HK$14,700 per month.

115.  Therefore, the total amount under this head (inclusive of MPF) would be:-

Sick Leave	(HK$38,802.83+HK$1,500) x 11 =  HK$443,331.13
8 February 2018 to 5 November 2021	(HK$40,302.83 – HK$14,700) x 44.93 =  HK$1,150,335.15
Total	HK$1,593,666.28

  Post-trial Loss of Earnings & MPF

116.  Mr Chong submits that according to Average Wages of Workers Engaged in Public Sector Construction Projects as Reported by Main Contractors, the average daily salary of a rigger in March 2017 was HK$1,690 and in March 2021 was HK$1,491. There is a 11.8% decrease in wages and this should be reflected in the post-trial salary of a rigger.

117.  Whilst accepting the accuracy of the statistics relied on by Ds, Ms Lee, on behalf of P, submits that statistics refer to a general condition, and when there is actual evidence from D1, the former direct employer of P, such evidence should be preferred.

118.  I accept Ms Lee’s submissions. I observe that the daily wage of a rigger working for D1 in October 2020 is very similar to the daily wage of P prior to the Accident. Therefore, I would continue to adopt HK$38,802.83 as the post-trial salary of a rigger.

119.  Since P is now age 58 the multiplier at 1% discount rate would be 6.61 according to Table 9.

120.  P’s post-trial loss of earning would therefore be:

(HK$38,802.83+HK1,500-HK$14,700) x 12 x 6.61 x (1-25%) = HK$1,523,112.35

121.  I do not consider it appropriate to award loss of earning capacity in the present case.

  Summary on Quantum

122.  In summary, I assess damages for the personal injury claim as follows:

(1)	PSLA		HK$225,000.00
(2)	Pre-trial loss of earnings and MPF		HK$1,593,666.28
(3)	Post-trial loss of earnings and MPF		HK$1,523,112.35
(4)	Special damages		HK$29,720.00
		Subtotal:	HK$3,371,498.63
Less	Employees’ Compensation		(HK$637,038.00)
		Total:	HK$2,734,460.63

123.  There will be an award of interest on damages on PSLA at 2% from the date of the writ to the date of judgment. For damages for pre-trial loss of earnings and MPF and special damages, interest will be awarded at half judgment rate from date of the Accident until the date of judgment. Interest on the final award shall run from judgment until full payment at judgment rate[14].

H.  CONCLUSION

124.  In the premises, I order that Ds do pay P the sum of HK$2,734,460.63 by way of damages with interest as per paragraph 123 above.

125.  I also make a costs order nisi that Ds do pay P’s costs, to be taxed if not agreed. P’s costs shall be taxed in accordance with the Legal Aid Rules.

126.  The costs order nisi shall become absolute unless an application is made to vary the same within 14 days.