HO HO MING v. TSEPOWAH AND OTHERS

HCPI 1168/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1168 OF 2003

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JUDGMENT

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1. The plaintiff claims damages for personal injuries against all three defendants arising from an accident which occurred on 9 November 2000 when the plaintiff, while working as a scaffold dismantler at a construction site at the Olympic Station Development, Site B (Phase II), Tai Kok Tsui (“the Site”) fell from a height of over 12 metres from a scaffold at the 2^nd floor level of Tower 9 sustaining head injuries as well as multiple fractures to various parts of his body resulting in almost complete loss of use of his left arm.

2. The 1^st defendant is sued as the direct employer of the plaintiff.  The 2^nd defendant as the sub-contractor responsible for the scaffold in question and the 3^rd defendant as the principal contractor of the Site.

3. The claim is brought in negligence and breach of occupier’s duty against the defendants.  Additionally the claim against the 1^st defendant is also brought on breach of employer’s duty, while the claim against the 2^nd and 3^rd defendants are also for their breach of statutory duties.

THE ACCIDENT

4. It is the plaintiff’s case that he worked for the 1^st defendant as a scaffold dismantler and on the day in question, he was initially asked by his boss, Tse Po Wah (“Tse”) to work in another construction site in Tseung Kwan O, however, for reasons not relevant to this matter, work could not be started at the Tseung Kwan O site and so the plaintiff was taken to the Site by Tse Po Wah for work.

5. The plaintiff says that he was asked by Tse to contact Kwan Po Tim (“Kwan”) at the Site when he got there, but was not provided with any safety belt for his work by his boss.  That came about because safety belts were normally kept at the back of the van used by Tse.  However, when he arrived at the Site he could not find any safety belt at the back of Tse’s van.  He had asked Tse for a safety belt before alighting the van, but received no reply from Tse, who only told him to go up to the Site to look for Kwan.

6. When he found Kwan at the changing room where workers changed at the Site, he was given instructions by Kwan to dismantle one section of a catch fan on the 2^nd floor of Tower 9.  He did not find any safety belt at the changing room and he did not ask Kwan for any fearing that if he made a fuss of that matter, he might lose his job.

7. When he came to that section of the catch fan to be dismantled on the 2^nd floor of Tower 9, he was left to do the dismantling of that catch fan on his own without any other worker to assist him.  He found that there was much rubbish and debris which had collected on that catch fan making it wobbly and unstable as well as adding to the weight of the catch fan.

8. In those circumstances, he concluded that if he were to employ the orthodox method of dismantling that section of the catch fan by removing the bamboo poles which made up that catch fan one by one, he would need to clear away all the rubbish and debris collected on the catch fan which would take him considerable time to do on his own.

9. As a result, he called Tse on his mobile phone telling Tse of the situation with the uncleared rubbish and debris on the catch fan.  Tse then instructed him to “lum” (i.e. to collapse) the catch fan.  The plaintiff understood those words to mean that he was to dismantle the catch fan using not the orthodox method of dismantling one by one the bamboo poles of the catch fan, but to employ an alternative method commonly known in the trade as “Tong Sei Ngau” which is to sever all the ties on both sides of that section of the catch fan to be dismantled, then to also sever all the ties at the bottom of the catch fan with the main scaffold and finally to cut away the three ropes holding the outermost part of the catch fan to the main scaffold so as to let the entire section of that catch fan fall down to the ground in one piece.

10. This the plaintiff set out to do.  When he had severed all the ties on the two sides of the catch fan, he then severed all the ties at the bottom of it with the main scaffold.  After that he had to climb up several rungs of the main scaffold to cut the three ropes which attached the catch fan to the main scaffold.

11. Just as he cut the last of the three ropes, and when the catch fan started to fall down, he felt the main scaffold started to shift downwards, undoubtedly with the weight of the falling catch fan.  As he felt it was unsafe to remain on the main scaffold in such circumstances, he tried to climb down several rungs of the scaffold to reach an open window of the building and thereby to get himself into the building through the window to a position of safety.  As he attempted to climb down the scaffold, his foot stepped on a lower rung of the scaffold which broke and he lost his footing thereby falling from the scaffold down to the ground below, a distance of some 12 metres.

12. As matters happened, the catch fan which the plaintiff attempted to dismantle using the “Tong Sei Ngau” method, did not cleanly fall to the ground below, but that one side of the catch fan remained entangled with some parts of the scaffold resulting in that section of the catch fan which the plaintiff sought to dismantle remained dangling precariously from the scaffold even after the accident to the plaintiff.

13. At the time the plaintiff was doing all the dismantling work on the scaffold and catch fan just before this accident, he was not wearing any safety belt since none had been provided to him by the 1^st defendant.  Moreover, there was no independent lifeline installed for use by workers working on the scaffold to which a fall arrester attached to the safety belt could have been secured.

THE DEFENCES OF THE VARIOUS DEFENDANTS

14. There is no dispute that at the time of the accident to the plaintiff, the plaintiff was not wearing any safety belt or harness.  It is also not in dispute that no independent lifeline had been set up or installed where the scaffold was such that a fall arrester could be attached to.

15. The 1^st defendant’s defence to the plaintiff’s claim against it is a denial of the plaintiff’s allegation that the 1^st defendant did not provide the plaintiff with a safety belt for use by the plaintiff at the Site.

16. It is the 1^st defendant’s case that the plaintiff had at all times been provided with a safety belt for his own use.  That evidence came from Tse and Kwan that not only was the plaintiff provided with a safety belt, but that the plaintiff had been allowed to keep the safety belt himself bringing it home with him each day after work and taking it along to the Site (or any other construction site) the following day for use by the plaintiff.

17. On the day of the accident, it was the evidence of both Tse and Kwan that the plaintiff was carrying a bag when he went to work at the Site and they both believed that the plaintiff had brought along with him the safety belt that the plaintiff had been provided with by the 1^st defendant.

18. Indeed, Tse went as far as to say in evidence that he remembered that the plaintiff had all along been provided with a safety harness which was white in colour with black stripes on the side and he remembered that because that was the only safety harness of such a colour which the 1^st defendant had.

19. As for the lifeline, the 1^st defendant says that it was the duty of either the 2^nd or the 3^rd defendant to provide an independent lifeline for use by workers including the 1^st defendant’s workers working on the scaffold at the Site but this had not been done by the 2^nd or 3^rd defendant despite repeated requests by the 1^st defendant for same made to the 2^nd defendant.

20. Moreover, the 1^st defendant says that in so far as safety measures are concerned relating to the plaintiff working on the scaffold to dismantle the catch fan, instructions had been given to the plaintiff to attach his safety belt to the rope securing the catch fan to the main scaffold in the absence of any independent lifeline provided by the 2^nd defendant.

21. It is also the 1^st defendant’s case that no specific instructions had been given to the plaintiff to dismantle the catch fan using the “Tong Sei Ngau” or “lum pang” method, but that it was something which the plaintiff undertook himself, and in doing so failed to make the proper assessment such that the catch fan did not cleanly come off and fall to the ground thereby giving rise to the accident to the plaintiff.

22. In this respect, the 1^st defendant says that the cause of the accident was the plaintiff choosing on his own to employ the dismantling of the catch fan using the “Tong Sei Ngau” method coupled with the fact that the plaintiff had not properly assessed the situation in going about it so that the catch fan did not cleanly fall to the ground causing the plaintiff to fall from the scaffold.

23. As for the 2^nd defendant, its defence to the plaintiff’s claim is that independent lifeline had not yet, at the date of the accident, been set up or installed, because it had not as yet given any instructions to the 1^st defendant for the dismantling of the scaffold or catch fan on the 2^nd floor of Tower 9 and it had no knowledge that the 1^st defendant had told the plaintiff to dismantle the catch fan when the accident occurred.  In any event, if the plaintiff was not provided with any safety belt by the 1^st defendant, the provision of an independent lifeline would not have had any significance to the accident to the plaintiff.

24. Moreover, it was a policy of the Site that dismantling catch fans using the “Tong Sei Ngau” method was not permitted at the Site unless with the specific consent of the 2^nd defendant which had never been given in this case relating to the catch fan demolished by the plaintiff on the 2^nd floor of Tower 9.  In this respect, it is the 2^nd defendant’s case that the method chosen to dismantle the catch fan was the cause of the accident and therefore the cause also of the injuries to the plaintiff.

25. The 2^nd defendant further denies that the scaffold and catch fan was unstable and relies on the inspection and subsequent certification signed by its foreman, Leung Ping Kwan, to the effect that the scaffold was stable and sufficient.

26. As for the rubbish and debris on the catch fan, the 2^nd defendant says that despite repeated complaints and requests by it to the 3^rd defendant well before the accident, the 3^rd defendant had permitted such a situation to continue which affected the general safety and stability of the entire scaffold.

FINDINGS OF FACT

27. Having heard all the evidence in this case, I have no hesitation in accepting in its entirety the evidence given by the plaintiff in this case.  I found the plaintiff to be a simple honest and straightforward person.

28. As for the two witnesses of the 1^st defendant, I do not find them to be reliable witnesses.

29. Tse has demonstrated his unreliableness when in his evidence concerning the safety harness which he described as being white with black stripes and which he said had been given to the plaintiff and kept by the plaintiff, but when asked whether he had seen that harness after the accident to the plaintiff, his quite inexplicable answer was that that very same harness somehow reappeared at the back of his truck the day after the plaintiff was injured in the accident, at a time when the plaintiff was in hospital.

30. Kwan’s evidence was also most unsatisfactory.  His evidence that when the plaintiff met up with him at the changing room in the Site on the morning of the accident, he immediately took the plaintiff out to view the catch fan on the 2^nd floor, even before the plaintiff had changed into his work clothes, was no doubt designed to forestall having to explain why the plaintiff was not provided with any safety belt before the plaintiff started work.

31. Another aspect of both the evidence from Kwan and Tse show them to be unreliable witnesses was when they said in evidence that the plaintiff was told to secure his safety belt to the three ropes which secured the outermost edge of the catch fan to the scaffold.

32. Firstly, I am satisfied that was never said to the plaintiff since no safety belt had been provided by the 1^st defendant and secondly, as demonstrated in evidence by counsel for the plaintiff, that exercise is well nigh next to impossible since the safety belt has only a two feet rope attached to it.

33. I have little doubt therefore that the evidence given by Tse and Kwan, where their evidence contradict the evidence of the plaintiff, were made up by them in a vain attempt to eradicate themselves from liability to the plaintiff in this case.

34. As for the evidence adduced by the 2^nd defendant from Leung Ping Kuen, I have no doubt that Leung was being utterly untruthful when he said that he had never given instructions, either the night before or even on the day of the accident, to the 1^st defendant to dismantle the catch fan, the subject matter in respect this accident to the plaintiff.  On that issue, I accept the evidence of Tse that he had done so the night before by phone.

35. Again I find this denial of Leung to be not only not truthful, but that this untruth was a deliberate lie to extricate the 2^nd defendant from liability in this case, since there is no way that the 2^nd defendant could deny the fact that independent life lines had not been installed at the time of this accident.  Once the 2^nd defendant concede that there was no independent lifeline installed, the only possible explanation it could put forward must be that no instructions had been given for the dismantling of the catch fan.

36. However, that does not fit in with the picture that the 1^st defendant undertook to dismantle that catch fan and indeed instructed the plaintiff to do so, and which was in fact done.

37. In those circumstances, I am prepared to accept the evidence of Tse that such instructions had been given by the 2^nd defendant resulting in the plaintiff being told to carry it out on the morning of his accident.

38. I therefore find that the accident happened the way the plaintiff had described it.  Furthermore I also find the plaintiff had not been provided with any safety belt when he carried out those instructions to dismantle the catch fan.  There was no independent lifeline installed at the time and this was well known to all the defendants concerned.

39. I also accept the plaintiff’s evidence that he had communicated his difficulties to Tse before undertaking to dismantle the catch fan and had been instructed by Tse to “lum” the catch fan which the plaintiff understood to mean to use the “Tong Sei Ngau” method instead of the orthodox method.

CAUSATION

40. Much time had been spent on evidence and submission during the trial as to the cause of this accident to the plaintiff.  Causation was therefore very much in issue between the parties.

41. All the defendants have suggested that the main and direct cause of the accident was due to the “unsafe” way in which the plaintiff had gone about dismantling the catch fan in question.  In this respect, they have all concentrated on how the plaintiff came to fall off the scaffold as being the cause of the accident.

42. In my view however, there can be no doubt that such submission made by all three defendants are “red herrings” to borrow the phraseology of Ms Remedios who appeared for the plaintiff.  Although it was the fall of the plaintiff off the scaffold which led to his injuries, the real issue in this case in so far as causation is concerned must be the question “what caused the injuries to the plaintiff” rather than “what caused the plaintiff to fall off the scaffold”.

43. When the correct question is asked — namely what caused the plaintiff’s injuries — it can readily be seen that the answer to it must be the absence of a safety belt or harness with fall arrester properly attached to an independent lifeline which should have been provided to the plaintiff for his use in the work that he was doing immediately before the accident.

44. Put in another way, if everything else had happened exactly the same way as it did to the plaintiff, but that he had a safety belt or harness on him with a fall arrester properly attached to an independent lifeline secured to an independent anchorage point, then even if the plaintiff had fallen off the scaffold in exactly the same way as he did, he would not have suffered the severe injuries that he did.  Instead, if a safety belt and independent lifeline had been used, the plaintiff would have dangled from the independent lifeline after falling off the scaffold without sustaining the severe injuries which he now has.

45. For these reasons, I have little doubt that the main cause of the injuries suffered by the plaintiff in this accident was due to the fact that no safety belt or harness with fall arrester and no independent lifeline had been available for use by the plaintiff when he was asked to dismantle the catch fan.

46. In short, the causa causans was the absence of an independent lifeline to which a safety belt or fall arrester could have been attached.  The plaintiff’s fall off the scaffold was only the causa sine qua non.

47. The condition of the scaffold and catch fan, the rubbish and debris on the catch fan and the method employed for the dismantling of the catch fan, as well as the fact that the catch fan did not fall cleanly to the ground are all matters which are secondary and incidental to the accident.  Whilst I do not rule out that they may have a part to play in the overall state of things giving rise to this accident as a whole, they were not the cause or the main cause of the injuries to the plaintiff in this accident.  They may well be relevant when it comes to the apportionment of liability as between the various defendants but that will be dealt with when I come to deal with that issue.

LIABILITY

48. Having identified and made my finding on the question of causation as to the accident and injuries suffered by the plaintiff, there can be no question but that all three defendants were liable to the plaintiff for this accident.

49. The 1^st defendant as the employer of the plaintiff, must have been in breach of his duty as an employer to have allowed the plaintiff to work on the catch fan well knowing (on his own admission) that there was no independent lifeline from which the plaintiff could attach his safety belt.  It is futile for him to point his finger at any one else for the failure to have the lifeline installed since his duty to the plaintiff, being his employee, is a non-delegable duty.

50. The 2^nd defendant, on the facts as found by me, must also be in breach of duty to the plaintiff, for on the facts as I have found them, the 2^nd defendant did give instructions to the 1^st defendant for the dismantling of the catch fan on the 2^nd floor of the building.  In giving such instructions, the 2^nd defendant must have known that workers of the 1^st defendant would have to go onto the catch fan for its dismantling and yet the 2^nd defendant failed to take the necessary steps to ensure that a lifeline was properly installed, being an occupier of the site, thereby being in breach of the common duty of care to the plaintiff.

51. Likewise the 3^rd defendant, being also an occupier of the Site, must also be in breach of its common duty of care to the plaintiff for failing to provide or to ensure the provision of an independent lifeline for use by workers dismantling the catch fan.

CONTRIBUTORY NEGLIGENCE

52. In a case such as this one, and on the facts as I have found them, I am unable to find the plaintiff guilty of any contributory negligence for the following reasons.

53. The plaintiff was doing the work as he was instructed and was not taking any short cut for his own convenience.

54. He had employed the “Tong Sei Ngau” method in dismantling the catch fan in question because of the prevailing circumstances and also because he was told by Tse to do so after telling Tse of the amount of debris and rubbish which had collected and which made it difficult if not impossible for him to dismantle the catch fan using the orthodox method.

55. In short he was put into this position due to the fault of others, not himself.

56. However, the greatest factor which leads me to the conclusion that the plaintiff could not be said to be contributory negligent was that on the plaintiff’s evidence, he was taking every step to take care of himself.  He was in fact trying to move down the scaffold when it began to move in order to reach the safety of a window behind him.  Unfortunately, just at that time he stepped on a piece of broken bamboo or on a piece of bamboo which broke thereby causing him to lose his footing.

57. This part of the plaintiff’s evidence was not even challenged.  That evidence, which I accept, showed that the plaintiff was attempting as well as he could to take reasonable care of his own safety.

58. That he fell and injured himself was really due to the fact that he had not been provided with safety belt or independent lifeline, a matter that could not have been within his control.

59. For these reasons, I do not find contributory negligence on the part of the plaintiff in this matter.

APPORTIONMENT OF LIABILITY AS BETWEEN DEFENDANTS

60. Contribution Notices having been served as between all the defendants inter se, I am bound to apportion their share of liability between them.

61. On the facts as found above, the main cause of the accident to the plaintiff must be the absence of the independent lifeline.  That was something known to all the defendants in this case.  While each of the defendants may have a different role to play in causing this accident, I cannot really see any great difference in culpability between each of them.

62. The only discernable difference may be that the 1^st defendant, being the employer was under a more onerous duty to the plaintiff than the other two, whose liability springs from the fact that they are the occupiers of the Site.

63. As for the 3^rd defendant, it is clear from all the evidence adduced in the case, that the 3^rd defendant, being the main contractor of the Site had permitted or allowed far too much debris and rubbish to be strewn on the scaffold and the inner parts of the catch fan including the aisle or passageway used by workers.  This had been the subject of complaint long before the accident by the 2^nd defendant but little was done to improve the situation by the 3^rd defendant.

64. Accepting that the debris and rubbish on the scaffold and catch fan were not the direct cause of this accident, nevertheless, such rubbish and debris formed the circumstances which led to the plaintiff being told to use the “Tong Sei Ngau” method to dismantle the catch fan.

65. Moreover, the 3^rd defendant being the main contractor will normally have to face the music at the forefront when the safety system of a site is at fault, which is the case here.  The main contractor is usually the one with the overall control of a construction site.

66. For the above reasons, I find the 1^st and 3^rd defendants each 35% to blame and the 2^nd defendant 30% to blame for this accident to the plaintiff.

QUANTUM

67. I now turn to deal with Quantum.

INJURIES AND TREATMENT

68. Immediately after the accident, the plaintiff was sent to the Accident and Emergency Department of Kwong Wah Hospital by ambulance.

69. On physical examination, his physical condition was found to be serious, though he was conscious.  There was a 4 cm long laceration wound over the left parietal region of his head, swelling and tenderness over his left shoulder with associated dilated left upper limb veins, tenderness over chest wall and abrasion over his right knee.  X-rays showed fractures of left clavicle and fractures of 2^nd to 6^th ribs.  Bleeding into the left chest required chest drain management.

70. There was complete loss of movement and sensation of left arm, and the arterial pulses of his left arm were absent (both brachial and radial pulse).  An arteriogram showed a tear of the left axillary artery.  CT scan of brain showed tiny left parietal contusion.

71. Emergency surgery, carried out by vascular surgeon on the same day as the plaintiff was admitted, revealed complete avulsion of neurovascular bundle to the left arm.  Vein graft was done for repairing of the torn axillary vein.

72. The plaintiff was then transferred to Prince of Wales Hospital on 20 November 2000.

73. As examination confirmed that there was no movement in the left arm, and sensation was grossly diminished, an arteriogram for the left arm was repeated on 27 November 2000 which showed acutely truncated left axillary artery with 3^rd part of axillary artery reconstituted by collaterals.  The distal arteries were markedly narrowed.

74. An ultrasonogram of the brachial plexus of the left arm was done on 6 December 2000 and an MRI of the cervical spine done on the following day.

75. Clinical diagnosis at this stage was a severe injury to the nerves of the left arm at the shoulder region (the brachial plexus) and injury to the artery of the left arm at the shoulder region (the axillary artery).  This caused the plaintiff severe neuralgic pain of his left hand.

76. Surgical exploration of the left shoulder was carried out on 14 December 2000 and it was found that there was a severe injury to the left brachial plexus with rupture of all the three main trunks of the plexus.  Nerve grafting procedure was then carried out to the musculocutaneous nerve, the radial nerve and the medial nerve.

77. Vascular grafting procedure was also carried out at the same operation to repair the left carotid artery and the distal end of the brachial artery.

78. The plaintiff was discharged on 23 December 2000.

79. A further surgical procedure was carried out on 18 January 2001 at the Prince of Wales Hospital to transfer intercostals nerves for grafting to the muscles around the shoulder region.

80. The plaintiff was discharged on 23 January 2001 and continued with outpatient rehabilitation programme intensively.

81. Follow up by the plaintiff in May 2002 showed some recovery of movements of the left upper limb.  Although it was thought at that time that the plaintiff may recover some movement of his left hand by the end of 2002, nevertheless, there will still be a significant degree of permanent disability of his left hand which includes wasting of the limb, poor sensation or complete absence of it, poor grip or total inability to grip and severe weakness.  There will also be a permanent form of neuralgic pain which may show some improvement with time.  His headache will be a form of post concussional syndrome.

82. The plaintiff continued a steady improvement of his left upper limb function and by July 2004, had a grade 4 shoulder abduction and elbow extension power, grade 5 elbow flexion, grade 1 wrist extension, grade 3 wrist flexion and grade 2 finger flexion power.

83. The plaintiff underwent yet a further operation on 29 July 2004 which included transfer of both medial and lateral head of triceps muscle to the wrist extensor, 1^st carpo-metacarpal joint fusion and split distal FPL tenodesis to improve lateral pinching ability, together with rerouting of biceps tendon to improve forearm pronation.  The operation was uneventful.

84. As a result of the tendon transfer, at a follow up after the July 2004 operation, the plaintiff was found to have grade 3 wrist extension power.  Lateral pinch pattern and forearm pronation also improved.

85. A yet further operation, initially scheduled for March 2005, expected to include a free microvascular transfer of gracilis muscle to augment his hand grip by performing neurotization using nerve to brachialis muscle.  That operation however, had to be postponed and was not carried out until February 2006, just shortly before the trial of this matter began.

ORTHOPAEDIC ASSESSMENT

86. The plaintiff was examined by his own expert in orthopaedics, Dr David Cheng in March 2004 and by the defendants’ orthopaedic expert, Dr Chun Siu Yeung in June 2004.

87. Both experts expressed very similar views as to their assessment of the plaintiff’s orthopaedic condition.

88. They are both agreed that :

(a) the plaintiff suffered a complete brachial plexus injury with limited recovery after surgical intervention with a view to salvaging;

(b) the treatment given was appropriate, adequate and satisfactory which enabled the limb to be saved;

(c) the plaintiff’s condition is static and no further active treatment is required except symptomatic treatment of the neurotic pain of the left upper limb;

(d) further significant neurological recovery is unlikely;

(e) the progonis is poor for the left upper limb;

(f) the injury constitutes 90% impairment of the upper extremity or 54% impairment of the whole person;

(g) the plaintiff will not be able to return to his pre-accident job as a scaffold dismantler but sedentary job is suitable for him; and

(h) reasonable period of sick leave is 2 years.

NEUROLOGICAL ASSESSMENT

89. Dr Edmund Woo, was instructed jointly by the parties as an expert neurologist to examine the plaintiff.

90. The examination took place on 23 January 2003 in Dr Woo’s clinic.

91. In his report dated 27 January 2003, Dr Woo was of the opinion that the plaintiff :

(a) sustained a mild to moderate head injury at the time of the fall in November 2000 when he was rendered unconscious and had no recollection of the events of the first few hours of his hospitalization;

(b) there was radiological evidence of a tiny cerebral contusion;

(c) he had sustained a near complete damage to the left brachial plexus predominantly affecting its lower trunk and there was no improvement despite surgical repair, nerve graft and physiotherapy;

(d) he has residual headache as a result of the head injury and since more than 2 years have elapsed after the accident, further improvement in his neurological functions is not expected;

(e) the near-complete injury to the left brachial plexus accounts for a 90% impairment of the left upper extremity corresponding to a 54% impairment of the whole person;

(f) there is no specific treatment available apart from the use of analgesics for the relief of the headache and left upper extremity pain;

(g) the plaintiff will not be able to resume his pre-accident job but suited for non-manual labour; and

(h) most recovery of neurological functions after nerve trauma occurs during the first year of the accident, although some further minor improvement can continue up to 2 years.  In the plaintiff’s case he should have recovered sufficiently by November 2002 to be able to resume gainful employment.

PSYCHOLOGICAL ASSESSMENT

92. The plaintiff’s treatment for severe neuropathic pain of the left arm, chronic headaches as well as symptoms of depression, adjustment problems and Post-Traumatic Stress Disorder is stated in the report of Dr Lim Huey Sing of the Prince of Wales Hospital.

93. The plaintiff’s treatment for pain and psychological symptoms are stated in the report of Dr Tony Wong, clinical psychologist at Prince of Wales Hospital and also by Dr Calais Chan also with the Prince of Wales Hospital.

94. The plaintiff was examined by Professor Peter Lee, the plaintiff’s expert in psychology, in March and April of 2004.

95. In his report dated 23 April 2004, Professor Lee stated the plaintiff’s psychological condition and his assessment of it to be :

(a) while the plaintiff no longer presents any full blown symptoms of a post-traumatic stress disorder, he still suffers from a moderately severe adjustment disorder with mixed depressive and anxiety features of a chronic nature;

(b) he has low self esteem, sees a bleak future ahead of him and is totally lost in that he has little sense of direction and no aspiration whatsoever, which is a result of his physical disability and resultant psychological aftermath;

(c) his current daily life quality is filled mainly with gloom, sadness, fearfulness and deep insecurities; and

(d) the plaintiff however, is assessed to have generally intact cognitive and memory functioning.

96. Professor Lee further states in his report that he considers the ongoing psychological treatment which the plaintiff is still receiving from the public sector to be inadequate in that it is only on a monthly basis.  In his opinion, the plaintiff needs more intensive psychological treatment to help him work out concrete and attainable plans and to put them into action.

97. In this respect, Professor Lee proposes an additional course of psychotherapy of 20 sessions which in the private sector will costs around $30,000.

98. Additionally Professor Lee further advocates the plaintiff to join a day hospital rehabilitation training place for a three to six months’ period in a Hospital Authority rehabilitation setting which will be of benefit to him.

99. The plaintiff was also examined by the defendant’s psychological expert, Dr Anita C. Leung in August 2004.  In her report dated 23 August 2004, Dr Leung came to the following opinion :

(a) his physical conditions, which have not stabilized yet at the time of her assessment, will have a significant bearing on the plaintiff’s psychological conditions;

(b) at the time of her assessment, the plaintiff still suffers from symptoms of Post-Traumatic Stress Disorder and Adjustment Disorder with Mixed Anxiety and Depressed Mood.  However, the severity and extent of such symptoms do not meet the diagnostic criteria of a mental disorder; and

(c) his cognitive functioning ranges from average to below average.  The cognitive impairment is mild.  His global psychological functioning is assessed to be moderately impaired and such psychological impairment is assessed to be about 30% of the whole person.

100. Dr Leung further states that with intensive psychological treatment, the plaintiff’s symptoms of PTSD and his anxious-depressive moods can be alleviated.  She advocates a course of some 20 sessions for such treatment.

PAIN SUFFERING AND LOSS OF AMENTIES

101. The plaintiff claims $750,000 under this head of damages.

102. The defendants on the other hand submits that $500,000 to be reasonable compensation.

103. Given the injuries and resultant disabilities suffered by the plaintiff as stated above, there can be little doubt that the plaintiff’s injuries would be in the region somewhere at the bottom end of the “Serious Injury” category or the top end of the “Substantial” category as it is understood in the case of Lee Ting Lam.

104. Taking into account the pain that the plaintiff has had to suffer and endure as well as the four operations that he had to undergo in December 2000, January 2001, July 2004 and in February 2006, I am of the view that the sum of $750,000 is the correct amount of reasonable damages for PSLA and the same will be awarded.

PRE-TRIAL LOSSES

A.  Earnings

105. It is the plaintiff’s case that before the accident he worked 26 days a month on average and was paid a daily wage of $1,000 per day by the 1^st defendant.  On that basis, the plaintiff’s claim under this head is based on pre-accident monthly earnings of $26,000.

106. The defendants, on the other hand, relies on the 1^st defendant’s wage records relating to the plaintiff to say that for the 12 months prior to the accident, such records show that the plaintiff received on average monthly earnings of $17,666.66.

107. In this respect, the plaintiff accepts that he did not work all the 26 days in a month for the 1^st defendant, but would at times work for other employers when there is no work for him from the 1^st defendant.  It is the plaintiff’s evidence that on average he would work between 15 to 20 days for the 1^st defendant in any given month.  The 1^st defendant’s records of the plaintiff’s earnings from the 1^st defendant would therefore support that evidence of the plaintiff as to his working for the defendant between 15 to 20 days in a month.

108. It is also the plaintiff’s case that a record of his number of days of work was kept by his girlfriend before the accident.  That record (which was produced in evidence) however, did not support the plaintiff’s evidence that he worked 26 days a month including other employers other than the 1^st defendant.

109. The explanation given by the plaintiff for such discrepancy in the record kept by his girlfriend was that he did not give to his girlfriend the full account of all of the days that he had worked (especially on days when he was working for employers other than the 1^st defendant) because he did not want to hand over to his girlfriend all of his earnings but wanted to keep some for himself.

110. The girlfriend was not called as a witness for reasons not told to the court.

111. In view of the fact that the plaintiff did not keep any record himself of the days that he did work before the accident, and could only rely on his memory in giving that evidence, although I do not think that the plaintiff was telling a deliberate untruth, however, that evidence of his as to working an average of 26 days in a month before the accident must, given all the circumstances of this case, be viewed as unsatisfactory.

112. Moreover, I must also take into account the plaintiff’s evidence that when he worked for others such as “Sai Ngan Chung”, he would only be paid $800 per day, and not $1,000 as was paid to him by the 1^st defendant.

113. On the evidence therefore, I find that it was more likely to be the case that the plaintiff worked between 20 and 26 days a month on average before the accident happened.

114. Therefore taking a mean, I would use 23 days a month as being the average number of days which the plaintiff worked.  Further taking into account that at times he would be paid only $800 per day, I find that the average monthly earnings of the plaintiff to be $22,000 per month before he met with the accident.

115. The plaintiff was given sick leave up to 18 November 2003.  Whilst I have not lost sight of the fact that all the experts agree that two years’ sick leave would be reasonable in this case, I bear in mind that the actual sick leave granted to the plaintiff was granted to him by his treating doctors at the time when the plaintiff was treated.  Therefore they had the benefit of seeing the plaintiff and the condition he was in when they granted the sick leave.  That was not the case with the experts engaged in this case since the experts only examined the plaintiff much more than two years after the accident.

116. On that basis alone, I would have awarded the plaintiff full loss of earnings for the three years after the accident for which he was granted sick leave.

117. Even if it should be thought that the experts were correct in assessing two years as being reasonable for the sick leave period in this case, for the plaintiff in this case, whose pre-accident job was that of a scaffold dismantler and who did not have a great deal of formal education, to suddenly be told that due to his injuries he could not continue in his pre-accident job, but will have to switch to some form of sedentary work, he must necessarily be given sufficient time not only to adjust but, in the condition that he has been put in due to the injuries, to seek out and secure alternative employment of a wholly different nature from that which he was familiar with before the accident.

118. That would be a further reason to assess full loss of earnings for a period longer than the two years suggested by all the experts.

119. Therefore the loss for the first three years after the accident comes to $22,000 x 36 months giving $792,000.

120. For the balance of the 34 months of the pre-trial period, there would be partial loss of earnings on the basis that all the experts share the view that even in the current condition that the plaintiff is in due to his injuries and resultant disabilities, he should be able to do work of a sedentary nature.

121. I accept that such alternative work will not pay much and likely would be in the region of about $5,000 per month.  I therefore make the finding that the partial loss for the balance of the pre-trial period will be $17,000.

122. That will give $17,000 x 34 months giving $578,000.

123. Totally, the pre-trial loss of earnings comes to $1,370,000.

124. MPF came into force one month after the accident.  It would be calculated as 5% of $1,370,000 less one month of full loss of earnings of $22,000 which gives $67,400.

125. Totally the damages under this head including MPF comes to $1,437,400.

126. In assessing the damages under this head of damage in the way that I have, I have rejected the submission of the 1^st defendant that the plaintiff would suffer no loss of earnings after July 2004.

127. That contention by the 1^st defendant is based on the premise that despite losing the use of his left arm, the plaintiff will nevertheless be able to work as a sub-sub-contractor (following the footsteps of his father in the trade) after the award of the Certificate in Vocational Studies (Technical) in July 2004 and the earnings which can be generated will not be less than his pre-accident earnings.

128. Such contention by the 1^st defendant either ignores or overlooks the fact that a sub-sub-contractor (of which the plaintiff’s father is one and so too the 1^st defendant for whom the plaintiff works) carries out his work by being one of the worker himself as well as by mustering up a band of good workers who can jointly with him work quickly to finish off the piece work entrusted to him.  The quicker they can complete the job, the more the sub-contractor stands to profit.  But by and large, the sub-contractor himself takes part in the work as much as if not more than the other workers engaged by him.

129. In the condition the plaintiff is in, there can be no question of him being such a sub-sub-contractor.

B.  Medical expenses

130. The initial claim by the plaintiff for medical expenses incurred in Hong Kong as pleaded in the Revised Statement of Damages in the amount of $13,611 was not disputed by the defendants.

131. Due to the fact that medical treatment of the plaintiff was continuing right up to the trial, the updated figure put forward by the plaintiff in the amount of $18,738 cannot be in dispute between the parties.

132. What is in dispute between them is the claim by the plaintiff of an additional $51,660 which represents medical expenses incurred by him in Mainland China when he spent some 9 months in China receiving physiotherapy at the Wah Kiu Hospital in Guangzhou (starting from the early part of 2005 and continued for some 9 months until November or December the same year) in the form of electric treatment given to his left arm.

133. The claim is made up of $10,800 for the 9 months of physiotherapy received, $23,400 being the costs of accommodation for the 9 months in China, $4,500 being the costs of engaging a domestic helper for those 9 months in China and $12,960 being the costs of travelling to and from Hong Kong for those 36 weeks at $360 per week.  The explanation given for the 36 weeks of travelling was that he had to return to Hong Kong each week to visit his girlfriend who was working here.

134. The plaintiff said in evidence that he had no medical report from the Hospital in Guangzhou and no documents to show his attendance there.  The explanation given by the plaintiff as to why he had to go to Guangzhou for such electric treatment was because he had a friend who also received physiotherapy treatment in Guangzhou and had his arms healed therefore he wanted to give it a try.

135. It is also the plaintiff’s evidence that such electrical treatment did alleviate some of the pain he was feeling in his left arm.

136. I accept the plaintiff’s evidence that he did go to the Wah Kiu Hospital in Guangzhou to receive such treatment although there was no documentary proof for it.

137. I also find that it was not unreasonable for the plaintiff to have tried such physiotherapy treatment which took place in 2005, about half a year after his fourth operation in July 2004.  By that time the plaintiff would have realized that the treatment given to him in Hong Kong was not achieving a great deal for him and cannot be blamed for wanting to try some other treatment which he knew had helped a friend of his.

138. I am therefore prepared to allow the claim for the costs of 9 months of physiotherapy treatment in Guangzhou.  The costs of the accommodation and domestic helper must necessarily be directly related to such treatment which was given to him from Mondays to Fridays each week.

139. However, the costs for the 36 weeks of commuting between Hong Kong and Guangzhou will not be allowed as those were incurred on account of the plaintiff wishing to visit his girlfriend at the weekends for those 9 months and not reasonably necessary for receiving the treatment.

140. I therefore assess the pre-trial medical expenses to be $57,438

C.  Travelling expenses

141. Travelling expenses claimed at the updated figure of $3,960 is not seriously disputed and will be allowed.

D.  Tonic food

142. The plaintiff claims $43,200 for tonic food.

143. The defendants are only prepared to accede to $10,000 under this head.

144. Considering the number of operations undergone by this plaintiff, the length of time of his rehabilitation and the severity of the injury upon the plaintiff, I am prepared to, on a rough and ready approach, allow a slightly higher figure than would normally be the case for the claim for tonic food.

145. Accordingly, an amount of $30,000 will be a reasonable sum for this head of claim.

E.  Past value of services/loss of earnings and travelling expenses of carers

146. In so far as this head of claim is concerned, the carers of the plaintiff comprise of the plaintiff’s girlfriend, her mother as well as both parents of the plaintiff.

147. The claim for the plaintiff’s girlfriend is made up of $8,850 for her services rendered during the plaintiff’s initial hospitalization for two months, and also for $2,124 for her travelling to the hospital during the same period.

148. The claim for services rendered by the girlfriend will not be allowed since the services rendered by her comprised of helping the plaintiff to wash and bathe, bringing breakfast and food to him and providing him with clean clothes and underwear.  Those are services which will be provided to him by the nursing staff in a hospital.  No doubt the girlfriend did all that because she was his girlfriend and wanted to care for him over and above the services provided by the hospital staff.  In short it was not reasonably necessary.

149. Her claim for travelling is not disputed by the defendants and will be allowed.

150. As for the mother of the girlfriend, the claim for her services and travelling amounting to $2,414.40 are not disputed by the defendants and will be allowed.

151. The claim in respect of the plaintiff’s father is for $7,670 being taxi fares incurred (at $130 per day) visiting the plaintiff daily in hospital during the time of his initial hospitalization.

152. The only reason given for the father having to take a taxi was because he was busy with his work.

153. In my view that is hardly a sufficient reason to justify taking a taxi throughout the time of the plaintiff’s stay in hospital to visit him.

154. The defendants are agreeable to $2,030 based on the father’s travelling by public transport and that amount will be allowed.

155. The claim in respect of the mother’s travelling at $2,029.60 is agreed by the defendants and will be allowed.

156. The major claim under this head, which is a claim for 18 months’ loss of earnings by the plaintiff’s mother who, at the time, was working as a cashier with “Fu Yu Coffee Shop” earning $6,000 per month, in order to take care of the plaintiff after his discharge from hospital, is disputed by the defendants who only agreed to an amount of $30,000.  The 18 months relate to the time the plaintiff stayed at home after discharge from hospital until he moved out to live with his girlfriend in mid-2002.  The plaintiff’s mother only resumed working in October or November 2003.

157. I have no doubt that due to the condition the plaintiff was in, he had to be wholly dependent on his mother to take care of him while he was recuperating at home for those 18 months.  It was therefore not unreasonable for the mother to give up her work for that period of time and the claim will be allowed as claimed at the amount of $108,000.

158. The total amount assessed under this head of claim comes to $116,598.

FUTURE LOSSES

A.  Earnings

159. For the assessment of pre-trial partial loss of earnings the multiplicand used was $17,000.  This had only taken into account the difference between the plaintiff’s pre-trial earnings as a scaffold dismantler and what he could earn in his alternative employment in the condition that he is now in after the accident.

160. That multiplicand had not taken into account what the plaintiff could have earned later in life had the accident not happened.

161. There is ample evidence before me that had it not been for the accident, the plaintiff would likely have followed his father’s footsteps and become a sub-sub-contractor himself.  That would likely have increased his earnings somewhat from being simply a scaffold dismantler.  However, it would also have been likely that it would have taken the plaintiff some more years to establish himself as a sub-sub-contractor.

162. Taking this into account, I would adopt a multiplier of $20,000 for the calculation of future loss of earnings.

163. As for the multiplier, the plaintiff suggested 18 while the defendants submit 11 in their Answer to the Revised Statement of Damages.

164. The 1^st defendant has subsequently, in its Amended Answer, further revised that down to 10.

165. The plaintiff is now 29 years old (his date of birth being 26 June 1977).

166. Whether he continued as a scaffold dismantler or whether he becomes a sub-sub-contractor doing essentially the same type of work of scaffold dismantling, that line of work would be in the upper range of manual labour and is the type of work that is physically demanding.  Scaffold dismantlers rarely continue such work after 50 or 55 years of age since it is so physically demanding having to climb up and down scaffolds.

167. Accordingly, and with a view to the cases cited in argument, I am of the view that a multiplier of 14 would be appropriate.  On that basis, the assessment for future loss of earnings comes to $3,360,000.  To this amount will have to be added 5% to take account of the lost MPF.

168. The total future loss of earnings together with MPF therefore comes to $3,528,000.

B.  Loss of earnings capacity

169. Having rejected the contention by the 1^st defendant that the plaintiff did not suffer any loss of earnings after July 2004 for the reasons already given above, it follows that I must necessarily also reject the further contention by the 1^st defendant that the plaintiff, for those same reasons, suffer no loss of earnings capacity.

170. The other defendants have agreed with the plaintiff that loss of earnings capacity be assessed at $90,000, that amount will be awarded.

C.  Future medical expenses

171. It is agreed between all concerned that the future costs of psychological treatment will be $30,000.

172. The disputed items under this head of claim are the future costs of :

(a) Occupational Therapy/Physiotherapy for which the plaintiff claims $120,000;

(b) Rehabilitation in the amount of $86,400; and

(c) a claim for the costs of Viagra at $312,000

173. The claim for occupational therapy/physiotherapy was based on the advice of Dr David Cheng that periodic follow up treatments were necessary.  Dr Cheng considered that 10 days’ treatment once every six months at a cost of $6,000 per year in the private sector to be appropriate.

174. I accept that advice of Dr Cheng and using a life multiplier of 20 in view of the age of the plaintiff, the claim for $120,000 will be allowed.

175. The amount of $86,400 claimed for rehabilitation was based on the advice of Professor Peter Lee that the plaintiff will benefit from a course of rehabilitation.  The costs estimated was $1,200 per session at three sessions per week for six months.

176. Again, I accept that recommendation of Professor Lee and the amount claimed at $86,400 will be allowed.

177. Although there is some evidence that the plaintiff has suffered some loss of libido, the claim for future costs of Viagra is not based on any medical recommendation.  In the absence of any medical evidence or recommendation for such treatment, this claim will not be allowed since this has not been proved to be reasonably necessary.

178. The total amount for future medical expenses is therefore assessed at $236,400

INTEREST

179. Interest on PSLA will be awarded at 2% p.a. from the date of the Writ.

180. Interest on all pre-trial damages will be awarded at half judgment date from the date of the accident.  In view of the fact that the amount of ECC payment ($2,525,662.78) exceeds the total amount of pre-trial damages, interest on all pre-trial damages will only be awarded up to 9 December 2004, the date on which the ECC payment was made.

SUMMARY

182. From this sub-total amount will have to be deducted the sum of $2,525,662.78 being the ECC payment already received by the plaintiff.

183. The final figure comes to $4,134,099.22.

CONCLUSION

184. There will be judgment to the plaintiff in the amount of $4,134,099.22 against all the defendants herein.

COSTS

185. There will be a costs order nisi that the defendants do pay the plaintiff his costs of this action to be taxed if not agreed.

186. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.