KHAN AMAR v. CHEUNG YING CONSTRUCTION ENGINEERING LTD AND ANOTHER

CACV 153/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.153 OF 2006

(ON APPEAL FROM HCPI 231 OF 2005)

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R E A S O N S  F O R  J U D G M E N T

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Hon Stone J (giving the judgment of the Court) :

The appeal

1.     This is a personal injuries appeal.

2.     The defendants herein sought to disturb the Judgment of Reyes J delivered on 14 March 2007 wherein the learned judge entered judgment in favour of the plaintiff against the 1^st and 2^nd defendants in the sum of HK$1,799,945.50, together with interest and costs.

3.     At the conclusion of the hearing this court dismissed this appeal, with reasons for such dismissal to be handed down.

4.     This we now do.

The background

5.     The plaintiff, Mr Khan, is a construction site worker; more precisely at the relevant time he was a steel frame worker.

6.     On 7 July 2002 Mr Khan was working on a construction site for a residential project at Sham Mong Road.  He was employed by the 1^st defendant, Cheung Ying, a subcontractor of the 2^nd defendant, Hyundai Engineering, to hang soffit lengths to wall panels within the flat units which were being erected on the site.  A ‘soffit length’ is a bar which is affixed to the top of wall panels to keep them aligned and to provide footing for the subsequent erection of slab panels.

7.     On the day of the accident, a Chinese supervisor identified by the plaintiff merely as “Lo Sai” or “boss” had instructed Mr Khan to hang soffit lengths on one of the floors of Tower 3; at that time it appears that there was a shortage of workers, and thus Mr Khan had to work alone.

8.     To do the job in question and to affix the soffit length, a worker needed to hang a bucket of pins and wedges at a convenient position which he could reach whilst standing on a stool; such a stool was necessary because each soffit length was to be attached to wall panels at points which were up to 3 metres from the ground.

9.     It seems that the subcontractor, Cheung Ying, had ordered the supply of some 100 such stools for use on the Sham Mong site; these stools were rudimentary in form, and were made from steel bars which were bent into shape and welded together.  Each stool had four legs and three steps, including the platform at the top, and was approximately 300mm wide, 600mm in length, and 900mm high.

10.     The learned judge found that on that day Mr Khan had looked for a stool to use in order to carry out his instructions.  He had found one, but noted that the stool had loose legs and was “wobbly”.  Mr Khan says that he complained about this to “Lo Sai”, but was told to use the stool as it was the only one available at the time.

11.     In the event it was this wobbly stool, together with the uneven ground, which was to cause this unfortunate accident.

12.     On the day in question Mr Khan had mounted the stool and started his work, which required him to use a hammer to insert pins and wedges, which he would take from a bucket suspended over a pin wedged into a hole in the adjacent wall panel; he told the judge that this was the only place on which he could place the bucket.

13.     The problem in this particular instance arose when, having stepped down a rung to get a pin or a wedge from the bucket, Mr Khan attempted to remount the top of the stool; the stool wobbled, he lost his balance, and he fell to the ground.

14.     In that fall, Mr Khan landed on his left elbow, whilst his back struck the adjoining wall panel.

15.     This accident took place at about 11am on 7 July 2002.  After lying on the floor for some 20 minutes, Mr Khan went to Caritas Medical Centre for treatment.

16.     In this litigation, the plaintiff asserted that his injuries were caused by the negligence and breach of statutory duty of the defendants.

17.     This claim was hotly disputed, and was tried before Reyes J, who, in a detailed and carefully considered judgment, evaluated the evidence and the arguments before him, and in due course found in the plaintiff’s favour; he said (at paragraph 86 of his Judgment) :

“The defendants breached their statutory and common law duties of care.  They failed to ensure that an adequate system was in place to prevent defective stools from being used on the uneven floor of the site.  That failure directly led to Mr Khan using a wobbly stool.  The stool’s lack of stability then caused Mr Khan’s fall.”

18.     Mr Justice Reyes specifically rejected the submission urged upon him by the late Mr John Kerr, then counsel for the defendants, to the effect that Mr Khan had been substantially to blame for his injuries, since he had not followed “best practice” in terms of the positioning of the bucket, and had he done so he would not have had to have moved up and down on the stool with the attendant risk of falling off; the judge also declined to accept the contention that all that had happened on that day was that Mr Khan had “simply lost his balance”.

19.     The learned judge held that he was not satisfied that it was Mr Khan’s positioning of the bucket which was the effective cause of his injury, and, after reviewing the evidence, concluded (at paragraph 89 of his Judgment) :

“In my view, had the stool been stable, Mr Khan should have been able to mount and dismount as he did without incident.  The real problem was not the bucket’s placing but the fact that the stool was wobbly.  Any shifting of weight by the person standing on top of the stool would then pose a risk of falling.”

20.     In light of this finding the learned judge also took the view that Mr Khan’s positioning of the bucket had not contributed significantly (or at all) to his fall, and thus rejected the submission of contributory negligence.

21.     The judge then proceed to consider quantum, and in due course after surveying the medical evidence he arrived at the figure of HK$1,799,945.00, in which composite figure there was a ‘future loss of earnings’ component of HK$1.26 million.

22.     The defendants (or more properly their subrogated insurers) appeal against the first instance findings upon both liability and quantum.

The argument

23.     At the hearing of this appeal Mr Neal Clough, now appearing for the defendants, took three main points, two relating to liability and one relating to the assessment of quantum.  We take them in turn.

(1)     Repeated and manifest ‘imperfections’ within the plaintiff’s evidence

24.     Mr Clough categorized this as the “main plank” of his appeal.

25.     In propounding this argument, Mr Clough was gracious enough to acknowledge that “at first blush” it might appear that the defendants were seeking to overturn a primary finding of fact by the trial judge, but asserted that this ambition was justified in the particular circumstances.

26.     This was because, he said, there were within the plaintiff’s various versions of that which had happened to him “four different accounts that were contradictory and inconsistent as to material particulars”, including, for example, whether or not the stool from which the plaintiff said he fell was defective.

27.     At bottom, Mr Clough’s thesis was this: that the learned judge below had made a fundamental error in approach in that, in finding as he did as to what factually had happened on that morning on that site, he had effectively ‘cherry picked’ from the various accounts which the plaintiff had given, both at trial and prior thereto, and thus, in effect, the judge had speculated or “pieced out the imperfections in the plaintiff’s case” in order to produce a coherent account of that which had occurred – and this, regrettably, was an account which attributed liability to his clients.

28.     Counsel submitted that in the circumstances this course was one which was not open to the judge in light of the fact that the plaintiff’s manifestly contradictory accounts to-date meant that Mr Khan’s evidence “was impugned to the extent that he could not be relied on at all” absent independent verifying evidence – of which there was none, since Mr Khan had been working alone in that room on that floor; in other words, said Mr Clough, the learned judge had not been entitled to accept one account of events (and a judicial reconstruction at that) to the exclusion of other versions which had been given by the plaintiff.

29.     This struck us as a somewhat ambitious approach, and we did not accept its underlying premise.

30.     True it is that Mr Khan had proffered differing details at different times as to the precise sequence of events which had resulted in his accident and, if we may say so with respect, the learned judge was clearly alive to the lack of consistency of detail of which complaint now is made; indeed he specifically directed himself on this aspect of the case.

31.     At paragraph 28 of his Judgment, for example, Reyes J specifically notes that “there are obvious discrepancies (some substantial) in Mr Khan’s accounts”, whilst at paragraph 31 the judge observes that he did not think that “the language barrier alone can explain the significant differences between the 2002, 2003 and 2006 versions of events”, and at paragraph 32 he directs himself that whilst he should approach Mr Khan’s accounts “with caution”, albeit this “did not mean that I should ignore them altogether”.

32.     In this connection Reyes J recognised that Mr Khan’s more recent accounts had become more “embellished”, and referred to the phenomenon of a victim engaged in litigation “colouring his recollection in a way which might favour prospects at trial”.

33.     It is thus clear that the learned judge seized with the conduct of this trial not only had the full panoply of evidence before him, but also that he was well aware of the potential pitfalls contained therein; he also had the signal advantage of seeing and hearing the plaintiff, Mr Khan, give his evidence (including being forcefully cross-examined by Mr Kerr, who at one stage went so far as suggest, incorrectly on the judge’s findings, that the evidence ruled out the possibility of the use of a wobbly stool).

34.     The short point is that, having had everything of relevance placed before him, the judge did precisely what was required of him and judged the case on its probabilities.  In this regard we agree with the contention of Mr Sakhrani (upon whom we did not call), but whom in his written submission had submitted that it is simply fallacious to suggest that, in light of the existence of prior inconsistencies, the court is not entitled to accept anything that the plaintiff says, regardless of the inherent probabilities.  

35.    We appreciate that the defendants (or their insurers) are not enamoured of the conclusions to which the judge came, but in the circumstances we are quite unable to see why it should be thought that the judge should not have been entitled to adopt the approach, and to take the view, that ultimately he took.

36.     There may perhaps be some scope for a submission of the type mounted by Mr Clough if, and only if, there was any real doubt that an accident had occurred to the plaintiff at all, with the result that in light of prior inconsistent accounts there may have been some judicial inclination to seek objective verification of such primary fact, but this is far from the present case.

37.     In his address Mr Clough fairly accepted that he could not argue that there had been no such accident, nor that the plaintiff had not fallen from a stool with uneven legs mounted upon an uneven surface, thereby suffering injury, and whilst we appreciate that at one stage the plaintiff (who is non-English speaking, and whose various statements had required Punjabi translation) appeared to havre suggested that the stool had not been a causative factor in the accident, in our judgment the learned judge was perfectly entitled to come to the view (at paragraph 45 of his Judgment) that this particular account simply had meant that “the stool was fine so long as one stood at the top with both legs”, and thus he decided that Mr Khan’s December 2002 statement “had not eliminated the probability that the accident occurred as I have summarized.”

38.     At the end of the day, therefore, the attempt on the part of the appellants completely to negate that which seems to us, on the available evidence, to be an almost unstoppable finding as to primary liability, was destined to fail, and we so concluded.

39.     However, on the issue of liability Mr Clough had another string to his bow, albeit one which, if successful, would have provided the appellants with a measure of relief only.

(2)     Contributory negligence

40.     Mr Clough’s fall-back position was that the plaintiff was an “experienced worker” who in the circumstances as revealed on the evidence clearly had failed to take reasonable care for his own safety.

41.     As earlier observed, the learned judge at trial specifically had rejected the contention that the plaintiff had been contributorily negligent, although it appears that the focus of this element of the argument as then mounted had been the wrongful placing of the bucket containing the pins and wedges, which had meant, it was said, that the plaintiff had had to descend too far in order to get that which he needed to do his job.

42.     However, perhaps recognizing that he would not get very far in disturbing a specific finding of fact on this issue, on this appeal Mr Clough’s contributory negligence submission focused on the proposition that Mr Khan had not taken reasonable care for his own safety in proceeding with his work with a faulty stool with uneven legs which was prone to “wobble”.

43.     In this connection Mr Clough did not seek to uphold the suggestion of counsel at trial that this was a 50% contributory negligence case, but rather he trailed his coat along the lines of 25-30% as a not unfair dimunition to acknowledge the lack of care on the part of the plaintiff.

44.     The main difficulty with this approach, and the change of factual tack underpinning this contributory negligence submission, is that it is unsupported by the evidence before the judge.

45.     It is true that the judge made no specific finding as to the specific availability of an alternative stool or stools, but the plaintiff’s evidence on the point was tolerably clear and specific: Mr Khan said at trial, when it was put to him in cross-examination that he could “easily have swapped” his stool for another “which wasn’t wobbly” :

“How could I?  There was only one.  I told my “lo sai” and he said, “You only use this one because other are all…occupied.”,

and subsequently, in answer to the suggestion that there were “plenty of stools on site”, Mr Khan further responded :

“May be, but I did not see”.

46.     We suspect that the learned judge made no specific finding on the issue because the contributory negligence argument did not take this form below; but in any event on this point he appears to have accepted (or, at the least, not rejected) the plaintiff’s account as to the lack of availability of alternative stools.  We are bound to say, also, that Mr Khan’s account of the response of the ‘lo sai’ to his request for a replacement stool has the unmistakeable ring of truth; construction sites in general are not havens of grace and politesse, and the overwhelming probability is that Mr Khan’s request was dealt with perfunctorily by a supervisor with little interest in Mr Khan’s difficulty.

47.     At the end of the day, therefore, we concluded that the contributory negligence submission as now mounted simply could not be justified; the matter may have been different if, for example, the untrammelled evidence had been that there were serried ranks of new stools available for use, and that the plaintiff nevertheless chose to continue with his own wobbly stool, but with characteristic fairness Mr Clough recognized that this was not the case, and that he was circumscribed by the available evidence on the point.

48.     So this other argument on liability failed also.

(3)     Quantum: Incorrect future loss of earnings basis

49.     This was the third and last string to Mr Clough’s bow.

50.     He submitted that in the quantum calculation – in the context of future earnings loss – the learned judge had substituted his own view in place of an agreed medical report, and thus that it was not open to the judge to make this element of his assessment on the basis that the plaintiff would be in difficulty in returning to work on a construction site but would, for example, have to find work of a less physically demanding nature, such as that of a security guard.  Whilst Mr Clough accepted that it may have been open to the judge to have adopted this stance in relation to pre-trial earnings loss, nevertheless he was not entitled “to extrapolate this finding so as to provide the basis of a calculation for future loss.”

51.     The agreed medical report which formed the underpinning of this submission was that of a Dr Patrick Wong Kwok Shing, an orthopaedics specialist, dated 22 December 2004.  The passage therein to which Mr Clough drew the court’s attention was that at paragraph 9 thereof, and read :

“Return to work:  Mr Khan should be able to return to his pre-accident job as a construction site worker but with reduction in efficiency at work.  Alternatively he may elect to work on other light to moderate manual work such as security guard, car part attendant or machine operator.”

52.     Mr Clough did his best with this point, but we do not think that he invested this submission with his usual conviction.

53.     For our part we did not read this passage as evincing the proposition that in spite of his injuries Mr Khan would be able to revert to the level of physicality of his previous construction site work.  We consider that that which was being suggested within the rubric ‘with reduction in efficiency at work’ was that whilst he may be able to work in some capacity on a construction site, he was not in a position to return to the type of more physically demanding work that he had been doing prior to his accident; or, in other words, that he was not as able a worker as before his accident.  Dr Wong also was saying that henceforth Mr Khan could reasonably be expected to a perform light to moderate manual work; this was precisely what he did, and it was on this basis that the learned judge assessed loss of earnings.

54.     Having read the learned judge on the point, we considered that his rejection at trial of the defendants’ submission that “the loss of future earnings should be nil because Mr Khan can resume his previous work” to have been entirely justified, and unable to be faulted; in the event the learned judge, after considering the evidence, took the view that future loss of earnings was to be evaluated by reference to a monthly average earning of HK$13,000, which he reduced by $6000 to take account of Mr Khan’s present reduced salary (as a security guard), to which resultant figure he then added a 15 year multiplier, yielding a sum of HK$1.26 million.

55.     The learned judge rightly observed that loss of future earnings “is at best a rough and ready calculation”, and with respect, we think that his estimate in this regard was about right.

56.     Accordingly, we rejected this line of attack also.

Order

57.     At the conclusion of this appeal we thus made the following Order :

(1)     The defendants’ appeal be dismissed;

(2)     That the costs of and occasioned by this appeal be to the plaintiff, and that the plaintiff’s costs be taxed according to the Legal Aid regulations.