CHOI SIAU BON v. CHEVALIER CONSTRUCTION (HONG KONG) LTD. AND OTHERS

HCPI 913/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.913 OF 2000

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J U D G M E N T

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1. This is a claim for damages for personal injuries sustained by the plaintiff in the course of his employment, on 24 October 1997.

2. At the time of the accident the plaintiff fell from a movable platform to the floor. The height of the platform was not agreed. In evidence, Mr Tsang, the 3rd defendant said it was 2 metres high. In his written statement he said it was 2.7 metres. The plaintiff said it was 3 metres. I find that it was at least 2.7 metres high.

3. The platform was square and had guard rails 1 metre from the platform surface on three of its four sides. The open side was the side at which the plaintiff was working. He was using a pneumatic drill at the time and was facing the unguarded side of the platform. The drill was suspended from the ceiling. His job was to drill and demolish a beam in the ceiling. In so doing, his drill became stuck in the beam. In his attempt to dislodge the drill from the beam he lost his balance and fell through the unguarded side of the platform and sustained injuries to his hip and back.

4. All three defendants were represented by Ms Alice Tsang. The 1st defendant was the principal contractor, the 2nd defendant was its sub-contractor. The 3rd defendant was either a sub-sub-contractor or the 2nd defendant's employee. There was no conflict between defendants but it is nonetheless necessary, as a preliminary issue, to determine the status of the 3rd defendant. Apart from a doctor, the 3rd defendant was the only witness for the defence.

5. According to the 3rd defendant, the 2nd defendant gave the 3rd defendant the plaintiff's wages to be handed over by the 3rd defendant to the plaintiff. It was also the 3rd defendant who gave instructions to the plaintiff. On the other hand, it was the 2nd defendant who paid the 3rd defendant's sick pay. The "Form 2" declared the 2nd defendant as the plaintiff's employer. There was no written contract between the plaintiff and either the 3rd defendant or the 2nd defendant.

6. For the purpose of these proceedings I find that the 2nd defendant was the true employer of the plaintiff. The 3rd defendant merely recruited him on the 2nd defendant's behalf, because extra manpower was needed. The pay which the 3rd defendant merely handed over was, in reality, wages paid by the 2nd defendant to the plaintiff.

7. The claim for the plaintiff is based on allegations of breaches of common law duty of care by the employer and breaches of the common duty of care and statutory obligation by the principal contractor. Ms Tsang for the defence does not deny liability entirely. Her case is that there ought to be a significant finding of contributory negligence against the plaintiff.

8. Her case for contributory negligence is based, inter alia, on the following contentions, all of which are denied by the plaintiff :

(a) The plaintiff should not have accepted the task of using a pneumatic drill as he was not employed as a driller;

(b) The plaintiff carried out his work incompetently and should have ceased drilling when instructed to do so by the 3rd defendant;

(c) The plaintiff refused to stop but continued to drill; and

(d) The drill became stuck as a result of the plaintiff's incompetence and his subsequent fall arose as a result of his own carelessness when trying to dislodge the drill incompetently.

Liability

9. I prefer the plaintiff's account of the accident. I accept his evidence that he was employed as a driller and had many years experience in working with both small drills and bigger pneumatic drills. I accept that he was capable of doing the job that was assigned to him. If the 3rd defendant was dissatisfied with the plaintiff's efforts I consider it more likely that he was dissatisfied with his rate of progress rather than his ability to do the work. I do not accept the contention that the plaintiff insisted on carrying on with the job inspite of being instructed to stop.

10. I am also satisfied that the plaintiff was not provided with a safe place of work. In my judgment there were clear breaches of statutory regulations. The platform was over 2 metres high yet it was not properly guarded by guard rails when it easily could have been and should have been. The purpose of the platform was to enable a worker to carry out drilling at height. There were guard rails 1 metre above the working surface on three sides. The fourth side should have been guarded as well. This particular platform was for drilling from waist level upwards. The only reason given for not having the fourth guard rail was that it would have prevented a worker from drilling below waist level. This falls woefully short of an adequate reason. On the other hand, the plaintiff's explanation for not wearing a safety belt attached to the frame is entirely understandable. The only practical place to attach a safety belt would have been to the guard rail. If he had done so and if he had fallen, the whole frame would have toppled over as well, and possibly on top of him.

11. In short, I find the 1st defendant to be in breach of regulations 38A and 38P of the Construction Sites (Safety) Regulations, Cap 59. Further, the plaintiff has established that his employer was in breach of his duty of care to provide the plaintiff with a safe system and place of work. I find there to be no contributory negligence by the plaintiff.

Quantum

12. Both the plaintiff and the defendants called medical evidence. Dr Tsoi for the plaintiff and Dr Chiang for the defence. In fact there was a substantial measure of agreement between them.

13. The plaintiff sustained two fractures of the hip and an L2 wedge fracture of the lower spine. Happily these injuries healed well after numerous sessions of physiotherapy. He used a walking stick for 2½ years after the accident. Some symptoms remain, such as a mild underlying back pain and some numbness in the legs. Generally, however, his recovery has been good. He was 57 at the time of the accident. He is 61 now.

14. Such differences of opinion that there were, between the doctors, related to the degree of the plaintiff's pre-existing degenerative condition of his spine. In my judgment the defence made too much of this. It was agreed that such a condition existed. However, the defence submission that it was of such a degree that the court should conclude that the plaintiff would have been unfit to continue his pre-accident work in any event, is, in my judgment unsustainable. Both doctors agreed that it would be difficult to speculate when this plaintiff would have had to give up his pre-accident work because of his pre-existing back condition. The plaintiff himself seemed to be a resilient type who would have carried on working as long he be reasonably could, in order to maximize his earning potential. I accept that the time would have come when he would have had to stop heavy manual work. However I cannot say when. The way in which this issue should be reflected in quantum is to assess a discount from the usual multiplier when assessing future loss.

15. I now turn to each head of damage :

1. Pain, suffering and loss of amenity

16. Both counsel have cited cases as comparables. I have considered them and gleaned some assistance from them. The adage that "every case depends on its own facts" is particularly true under this heading. The injuries to the hip and back can be assessed separately. I think $150,000 is appropriate for the back injury and $100,000 for the hip fractures. $250,000 in total.

2. Loss of earnings

(a) Past earnings

17. The plaintiff said he worked 26 days a month. The 3rd defendant said 20 days would be more appropriate. The plaintiff's earnings at the time were 18 days at $600 a day plus 8 days at $800 a day, which totals $17,200. I calculate that his present earnings would have been at the rate provided by Government statistics, namely $905 a day for 22 days a month (I accept that there is less work available now than in 1997 in the construction industry), namely $19,910. The median figure is $18,555.

18. The time since the accident is 51½ months. Thus the maximum figure for his loss of earnings to date would be $955,582. However, his sick pay stopped after 29 months, I therefore think his total loss should be limited to this period. Thereafter I would discount a sum to represent what he could have earned. I was not impressed with his efforts concerning his attempts to get some work once his sick pay had stopped. He was undoubtedly fit for light work. In my judgment the evidence does not satisfy me that he has remained unemployed reasonably, since being declared fit for work. I therefore discount his loss of wages by $5,000 per month for the period since he stopped receiving sick pay.

19. The defence has submitted that I should say that 18 months only should be the appropriate period for sick pay not the 29 months that he was in fact paid. Both doctors who gave evidence said that 18 months was a reasonable period. However both doctors only saw him for the first time after his sick pay had stopped. I do not propose to look behind the decision of those actually responsible for deciding whether he should have got sick pay or not. I will therefore limit the discount to 51½ months less 29 months, namely 22½ months. $5,000 a month for 22½months is $112,500.

20. The final figure for past loss of earnings is therefore $843,082. To this I add his loss of Mandatory Provident Fund which was introduced 14½ months ago, as follows :

$18,555 x 5% x 14½ = $13,452.

Therefore I award $856,534 under this head of damages.

3. Future loss

21. I accept, first of all, that but for the accident the plaintiff would still be capable of doing his pre-accident drilling job. For a man of his age the normal multiplier for calculating future loss would be 3. However, I am satisfied that his pre-existing degenerative condition would have caused him to cease this work earlier than he would have liked. Common sense also dictates that a susceptible back would be more vulnerable to further degeneration by virtue of the very nature of drilling work, namely heavy vibration.

22. In all the circumstances I think a multiplier of 1.5 is appropriate for a 61 years old driller with a bad back. His future loss therefore should be :

$905 x 22 x 105% x 18 = $376,299.

From this I deduct the same figure of $5,000 per month for 18 months ($90,000) which results in a figure of $286,299. To this I add a modest figure for loss of earning capacity to make the final figure of $325,000.

23. The only special damages which the plaintiff has been able to prove is $4,656.

4. Interest

(i)	On pain, suffering and loss of amenity $250,000 x 2% x 18½ months (date of writ to date)	=	$7,708
(ii)	On past loss of earnings $856,534 x 4.36% x 51½ months	=	$160,549
(iii)	On special damages $4,656 x 4.36% x 51½ months	=	$870
	Total		$169,127

Total damages (by categories)

1.	$250,000
2.	$856,534
3.	$325,000
4.	$169,127
	$1,600,661

24. From this figure I deduct the Employees Compensation award of $582,280. The final figure is $1,018,381.

25. I enter judgment for the plaintiff in the sum of $1,018,381. I make a costs order nisi against the 1st and 2nd defendants. The claim against the 3rd defendant is dismissed with costs. The 3rd defendant's costs, if any, to be included as part of the plaintiff's costs against the 1st and 2nd defendants.