HO CHONG PENG v. YUE HIN ENGINEERING CO

                                                          HCPI 1025/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1025 OF 2004

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J U D G M E N T

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1. The plaintiff who is a married man with three children brings this action against the defendant in respect of its alleged failure to provide a safe system of work.

2. The plaintiff who is now aged 41 was 37 at the time of the accident which occurred on 8 March 2002.  He was employed as a technician on a causal basis and one of his duties involved the installation of closed circuit television cameras (“CCTV”).

3. He was installing a CCTV on the day of the accident.  The accident occurred when the ladder he was on broke and he fell to the ground sustaining injuries to his left wrist.

4. The accident occurred at an area in the Ma Hang Estate at Stanley.

5. The defendant is a sole proprietorship of Madam Leung Wing Fong (“Madam Leung”).  Her husband Mr Chan Chun Fai (“Mr Chan”) assists with the operation of the business.

6. The business is a small scale business which undertakes relatively minor work relating to the maintenance of real estate property including the installation of CCTV cameras.

7. The plaintiff gave evidence that he had worked on and off for the defendant for about three years prior to the accident.

8. He had engaged in a wide variety of jobs.  He had done general work for the Kowloon-Canton Railway, and had worked as a hair stylist in a beauty parlour.

9. He had worked for a costume jewellery manufacturer and had assisted in the assembly of artificial ornaments.  He had also worked as a supervisor in a metal factory and had experience working with electrical products or matters although he had no formal qualifications in this field.  He had experience of painting and maintenance work and more particularly had quite a lot of experience working as a waiter.

10. As might be expected there is a range of remuneration payable in respect of the different jobs undertaken.  The plaintiff claims that his average remuneration was something in the order of $650 per day.  It will be noted that this is somewhat at variance with the defendant’s evidence to the effect that the daily rate of pay he received from them was nearer to $400 per day.  It should be noted that the plaintiff did work for considerable periods of time for the defendant.

11. Although the plaintiff gives detailed evidence concerning the remuneration he received for the various jobs he did there is no other evidence written or oral to support this.

12. We do however have evidence concerning what was contained in the Declaration which was made to the Labour Department shortly after the accident.

13. The plaintiff agreed that when Madam Leung had completed the requisite form he had been consulted and indeed had provided much of the information contained in the form.  This had been on account of the fact that the plaintiff had worked for other employers during the preceding year.

14. The form had contained a statement that the plaintiff’s average earnings for the preceding 12 months had been $8,950.  He accepted that this figure had been inserted in the form and that he had at the request of Madam Leung lodged the Declaration with the Labour Department.

15. He did subsequently attempt to resile from this average wage of $8,950 but I am satisfied that he did agree to this figure and that I believe that it accurately reflects his true earnings prior to the accident.

16. On the day in question arrangements had been made for him to meet Mr Chan and one of his fellow employees Mr Law Kam Chuen (“Mr Law”) in Mongkok to purchase various items which would be required for the work to be performed and then proceed in Mr Chan’s 7-seater vehicle to Stanley where the job was to be done.  Mr Ho Ki Chin (“Mr Ho”) joined the plaintiff and Mr Law in the afternoon at Stanley.  The plaintiff knew Mr Law and Mr Ho as they had worked together previously.

17. Indeed the plaintiff had undertaken work relating to the installation of CCTV cameras in carparks on about 20 previous occasions.

18. During the journey to Stanley there had been some conversation concerning tools or equipment which would be used on the job.  As the defendant had recently undertaken work at the Ma Hang Estate and the work to be done was remedial there were some tools which had been left at a storeroom there.  However, a ladder had not been left there.  Mr Chan had said that a new ladder should be purchased.

19. When they arrived at Stanley they went first to the area where the work was to be done and then to the storeroom to get the tools.  They saw that in addition to the tools there was also an eight-rung wooden ladder which the plaintiff thought could be used.

20. The plaintiff gave evidence that Mr Chan was present when the ladder was seen and had assisted in getting the ladder out of the room and placing it on a trolley so that it could be taken to the site where the work was to be undertaken.  There had been no further discussion about the purchase of a new ladder.

21. The plaintiff claims to have tested the ladder by standing on one of the rungs and shaking the ladder.  He had satisfied himself that the ladder was safe.

22. The ladder was used in the afternoon when the plaintiff started work on the CCTV camera.  This was affixed on a wall and was 12 feet 7 inches above the level of the ground.

23. He mounted the ladder which was A shaped and commenced work on the CCTV.  He needed to use both hands to undertake the necessary work on the CCTV.

24.  He did not move the lower part of his body or legs.  Suddenly he felt the ladder falling apart and he fell face downwards.  He used his left hand which was his dominant hand to attempt to protect his head.  His left arm hit the ground first and he realised that it appeared to be “deformed”.  He called out and Mr Law and Mr Ho came to his assistance and summoned help from the Emergency Services.

25. He was taken by ambulance to the Pamela Youde Nethersole Eastern Hospital and an operation was performed upon him under general anaesthetic to treat the fractured bones in his left wrist.  He was discharged from the hospital the following day.

26. He experienced very considerable pain and movement of his left wrist was restricted.  Later the pain extended to his left arm and shoulder.

27. He returned to the hospital on 24 April for pins to be removed and received physiotherapy twice weekly from 26 May to 8 November.

28. From December 2002 until July 2003 he underwent occupational therapy.

29. Throughout all this time he experienced varying degrees of pain which to an extent was alleviated by pain killing medication.

30. Also the use of his left hand was considerably restricted as he was unable to lift any heavy object with it.

31. In September 2003 he attended a course lasting 10 days for training as a security guard.  Thereafter he obtained employment as a security guard with Urban Property Management Ltd but this only lasted until 7 November 2003 as he found the duties he had to perform were unduly onerous having regard to his medical condition.

32. He underwent further physiotherapy in early 2004.

33. He claimed that his wrist was still weak and the amount of movement of his left arm was still restricted.

34. His doctor had recommended that he should be granted sick leave up to 10 July 2003.

35. He had made a number of attempts to obtain employment which would not necessitate the lifting of heavy weights with his left hand.

36. He had tried to secure employment as a cashier in an electronic games centre and had made numerous attempts to work as a waiter.  All his efforts had been unavailing.

37. The main lines of questioning in Mr Sakhrani’s cross-examination related to whether Mr Chan had authorised the use of the ladder in question on 8 March and on the extent of his employment since the expiration of the sick leave in July 2003

38. At the commencement of the cross-examination a video was played in court which had been taken of the plaintiff.

39. In it the plaintiff is shown to be working as a waiter.  He is serving noodles and tea to a customer and he is holding the tray upon which these are placed in his right hand.  There is also a sequence where he is sitting down eating food and using chopsticks with his right hand.  This might be indicative that the plaintiff is to an extent ambidextrous.

40. In addition to this there is a scene which shows him lifting with another person an advertising signboard and placing it in another position.  In this picture he uses both hands.

41. The plaintiff was asked whether this had been the only day when he had worked as a waiter and he said that it was. 

42. To obtain a balanced picture it is necessary to bear in mind that attempts were made on a number of occasions to video him working but he was only found working on that one occasion.

43. The plaintiff did not give any plausible explanation why he had not registered with the Labour Department for work.

44. The plaintiff was not a very convincing witness.

45. I generally accept his evidence that the accident occurred in the manner he described it.  I also accept that he did experience considerable pain and suffering as a consequence of the accident.

46. However, I have definite reservations concerning other important aspects of his evidence.

47. I do not believe that Mr Chan entered the storeroom on the morning of 8 March nor do I believe that he either expressly or impliedly sanctioned the use of the ladder in question that day.

48. On the balance of probabilities there was no reason why Mr Chan should go into the storeroom.  The plaintiff and Mr Law were both experienced employees and would have been perfectly capable of taking whatever equipment was necessary from the storeroom to the site where the work needed to be undertaken.  There was no need for there to be any input from Mr Chan.

49. More important than this, as will be seen later in this judgment, I found Mr Chan to be a much more credible and reliable witness than I did the plaintiff.

50. I am by no means satisfied that the plaintiff did not work for periods of time after the period when his sick leave expired.

51. I found the evidence of the contents of the video tape to be helpful and convincing.

52. It appears that the plaintiff had no difficulty whatever in performing the work of a waiter and that he was able to lift the sort of weights likely to be encountered in work of this nature.

53. Also the manner in which he was able to manipulate chopsticks is indicative that he could easily do the work required in a number of the trades in which he has experience.

54. What also needs to be borne in mind is the medical evidence which will be analysed later in this judgment.  It appears to be the evidence of the doctors that subsequent to the expiration of the sick leave granted to him the plaintiff could physically resume working albeit that there were some limitations.

55. As indicated earlier I had reservations concerning his evidence in relation to his pre-accident earnings.

56. The plaintiff did not call any witnesses to support his testimony.

57. The defendant called two witnesses, Mr Chan and Madam Leung.

58. Mr Chan gave evidence concerning the duties he performed relating to the defendant’s business.

59. Although the plaintiff had worked on and off for some time for the defendant Mr Chan had been reluctant to engage his services to do the work at Ma Hang.

60. This was partly due to the fact that the nature of the work had been remedial and that it appeared to make more sense for this to be undertaken by the men who did the original work Mr Law and Mr Lee Chun Hong (“Mr Lee”).

61. The only reason why he had agreed to employ the plaintiff was that Mr Ho had pleaded with him and urged him to employ the plaintiff as he was in pressing financial need.

62. Mr Chan was insistent however that he would be remunerated at the same rate as Mr Lee, namely $400 per day.

63. Arrangements were made for Mr Chan to pick up the plaintiff and Mr Law and to proceed in his 7-seater van to Stanley.

64. He said the plaintiff and Mr Law were familiar with the type of work which was to be performed and were well aware that some of the work would be undertaken above ground level thus necessitating the use of a ladder.

65. He had been aware of the fact that at the conclusion of the work originally done at Ma Hang the ladder belonging to the defendant had been removed and that accordingly it would be necessary to obtain another ladder.

66. He informed the plaintiff and Mr Law that a ladder must be purchased.  This should be a seven-rung ladder and not an eight rung one as claimed by the plaintiff.

67. The defendant had transferred moneys to Mr Law’s bank account to enable the purchase to be effected.  In this connection it was the defendant’s practice to provide employees they knew well with a financial float to enable them to purchase items or pay other workers at the conclusion of their services as the needs may require.

68. Mr Chan drove to the site where the work had to be performed and explained what had to be done and the necessity of safe work practices being adopted.

69. He then drove on to the carpark which is in close proximity to the storeroom where the tools and equipment belonging to the defendant were being stored.

70. The key to the storeroom was obtained and given to Mr Law and when he had been satisfied that access to the storeroom had been obtained he departed in his van.

71. He was adamant that he had not himself entered the storeroom on this occasion and that he was unaware that there had been a ladder in the storeroom.  He did however say that he had seen the men emerging from the storeroom with the trolley.

72. It was also his evidence that he had reminded the men of the necessity of purchasing a ladder and that this should be done in Aberdeen.  He agreed with the plaintiff’s evidence that the total cost of going to Aberdeen purchasing an appropriate ladder and transporting it back to the Ma Hang Estate would only be about $220.

73. Mr Chan accepted that even when a new ladder was required it would still be necessary to test that it was not defective by inspecting whether there were any cracks, whether the rungs were secure and the hinge at the top was in order.

74. In addition to this it was necessary to consider how the ladder should be used.

75. This would need to be considered in the context of the area where the work was being undertaken and in particular the height where the worker would be performing his work.

76. Where the work was being undertaken at considerable height he accepted that it may be necessary to require another worker to secure the ladder and ensure that it did not slip out of place.

77. He also accepted that there may be situations where it would be desirable for a work platform to be constructed rather than using a ladder.

78. Mr Chan said that he had been informed of the accident in the afternoon.  

79. Mr Chan said that he was aware of the evidence his wife had given concerning what had happened after the accident and that to the best of his knowledge this evidence had been accurate.  The defendant had not been prosecuted by the Labour Department as a result of the accident.

80. I found Mr Chan to be a truthful and reliable witness.  Where his evidence conflicts with the evidence of the plaintiff, I prefer the evidence of Mr Chan.

81. I find as a fact that Mr Chan did not go into the storeroom on the morning of 8 March and that he did not either expressly or impliedly authorise the plaintiff to use the defective ladder which was found in the storeroom.

82. In general terms I accept the remainder of the evidence he gave.

83. Madam Leung gave evidence concerning the way the defendant firm conducted its business.

84. Because it was a small business it was their practice to engage the services of casual workers.

85. She and her husband would organise the way the work would be done and who would be required to do it.  Mainly, there were four causal workers, Mr Law, Mr Lee, Mr Ho and the plaintiff.  They would all work from time to time as may be required.

86. On account of complaints received by the other men the plaintiff did not work for the defendant from April to September 2001 and he ceased working in February 2002.  He came back in March in the circumstances described by her husband.

87. Madam Leung was responsible for obtaining work and for its internal administration and her husband assisted her with external matters.

88. She said that it was the firm’s practice to repose a large measure of trust in the workers she had referred to and in some respects they acted as supervisors would.

89. Madam Leung gave evidence that her husband had dealt with the way that the Ma Hang Estate work should be performed.

90. She said that when the plaintiff resumed work in September 2001 his average wage was somewhere between $400 to $500 per day.  She rejected the plaintiff’s claim that it had been $600 per day as such a wage would only be paid to a qualified electrician.

91. Madam Leung said that the plaintiff’s income from the defendant from September 2001 to March 2002 was as follows :

Month/Year	Amount (HK$)
September 2001	3,750.00
October 2001	2,500.00
November 2001	7,000.00
December 2001	0.00
January 2002	0.00
February 2002	1,000.00
March 2002	400.00
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Total	14,650.00

92. Madam Leung did not know what other income the plaintiff received as he refused to divulge this notwithstanding her requests to him to do so.

93. Madam Leung was informed of the accident on the afternoon of 8 March and that the plaintiff had been admitted to hospital.

94. She had informed the Labour Department and her insurers.

95. She had, with the assistance of the plaintiff, completed Form II and the plaintiff had taken this to the Labour Department.

96. Because the plaintiff had worked for other employers in the year preceding the accident she had had to place reliance upon information provided by the plaintiff.

97. She had subsequently been advised by a representative of her insurers that she should not have proceeded in this way.  It was for this reason that she had submitted the amended form to the Labour Department.

98. She accepted that the information provided was unsatisfactory on account of the fact that the plaintiff had not cooperated with her.  On the advice of the Labour Department she had attempted to reconstruct the position by reference to comparables of Mr Lee.

99. The firm made periodic payments to the plaintiff up to June 2003.  The total of these payments had amounted to $94,229.

100. The firm paid the plaintiff $274,229 under the provisions contained in the Employees Compensation Ordinance.

101. Since the time of the accident the firm had ceased to employ casual workers as the cost of obtaining the necessary insurance cover had increased significantly.

102. The firm now sub-contracted work and work was on a much smaller scale.

103. I found Madam Leung to be a truthful and reliable witness and I accept her testimony.  In particular I accept her evidence that the plaintiff agreed when the declaration was made to the Labour Department that his average monthly earnings for the 12 months preceding the accident had been $8,950.

104. Both counsel placed reliance upon the medical reports which comprised part of the agreed bundle of documents.

105. Mr Cheung who represented the plaintiff relied upon the report prepared by Dr Johnson Lam and Mr Sakhrani for the defendant relied upon the report of Dr David Cheng.

106. The relevant part of Dr Lam’s report reads :

“Mr. Ho was admitted to the Department of Orthopaedics & Traumatology Pamela Youde Nethersole Eastern Hospital on 8 March 2002.  Physical and radiological examination revealed fracture of the left distal radius.  An emergency operation was performed on 9 March 2002 with close reduction, external fixation and K-wire fixation.  Mr. Ho received follow-up treatment at the outpatient clinic.  Radiological examination showed the fracture healed gradually.

However, there were signs suggestive of reflex sympathetic dystrophy of the left distal forearm, and subsequently, Mr. Ho also developed left frozen shoulder.  Mr. Ho received a course of rehabilitation in Kwong Wah Hospital including physiotherapy and occupational therapy for about 6 months.

Because of severe left shoulder pain, Mr Ho was then referred to the plain clinic and had received about 10 sessions of acupuncture treatment in Kwong Wah Hospital.  There was mild improvement.

According to the occupational therapy report prepared by Selina L.Y. Wan of Kwong Wah Hospital, Mr. Ho was unable to manage the pre-accident job based on the assessment dated 13 May 2003.  Sick leave was issued till 10 July 2003.  Mr. Ho then changed occupation as a security guard in late September 2003.  He experienced difficulties in putting up posters, changing ceiling lights and other duties requiring good left shoulder and upper limb function.  He resigned about one month later.

At the time of this assessment, Mr. Ho still complained of left shoulder pain and stiffness as well as upper limb weakness.  He had a recent increase in left shoulder pain and stiffness and was referred for a further course of physiotherapy.  Physical examination revealed stiffness of the left should with mild wasting of the girdle and deltoid muscles.  For the left wrist, there was mild stiffness, but there was significant decrease in handgrip power.  Physical examination still revealed tenderness at the triangular fibro-cartilage area of the wrist.  There was also decrease of radio-density of the left wrist and hand compatible with history of reflex sympathetic dystrophy or disuse.  Clinically, although it was over 2 years after the injury, in view of the deteriorating condition in his left shoulder as well as persistent pain in the left wrist (despite union of the fracture), further investigation and treatment would be useful to optimise the left shoulder and left wrist conditions.  For the left shoulder, a further course of physiotherapy including strengthening exercises would be advised.  For the left wrist, in view of the persistent pain in the ulnar aspect of the wrist, it would be worthwhile to perform an MRI scan to rule out major tears in the triangular fibrocartilage or other soft tissue structures.  It would also be useful to continue on a course of physiotherapy to that area.  The cost of such treatment would be listed in the appendix.  After a further course of treatment and investigation, if there is no major tear in the soft tissue that necessitate surgery, then Mr. Ho’s orthopaedic conditions had reached maximal medical improvement and should be ready for assessment of permanent impairment.

In the assessment of permanent impairment, reference should be made to the ‘Guides to the Evaluation of Permanent Impairment, 5^th Edition’ published by the American Medical Association.  At the time of this assessment, the left shoulder stiffness should carry 12% upper extremity impairment equivalent to 7% whole person impairment.  With further treatment, some further improvement was expected, and the expected amount of permanent impairment at the time of maximal medical improvement should be in the region of 6%.  For the left wrist fracture, based on the degree of stiffness, the amount of impairment should be 3% upper extremity impairment equivalent to 2% whole person impairment.  However, this would under-estimate the degree of ulnar wrist pain as well as the significant weakness.  Based on the moderate weakness in handgrip, the wrist fracture should carry 20% upper extremity impairment equivalent to 12% whole person impairment.  With further treatment, further improvement would be expected, and the amount of permanent impairment at the time of maximal medical improvement should be in the region of 6% whole person impairment related to the wrist condition.  At the time of maximal medical improvement, the total amount of permanent impairment causally related to this injury should be in the region of 12%.

In the assessment of the amount of loss of earning capacity, reference should be made to the Employees’ Compensation Ordinance.  Consideration should also be given to other factors including the educational background of the patient (Form I education in Macau), and the pre-accident occupational demand (for example, as a renovation working, frequent lifting heavy objects, and duties involving heavy physical demand; as a waiter, frequent duties requiring good left shoulder function).  Taking all factors into consideration, the expected amount of loss of earning capacity should be in the region of 16%.

Mr. Ho should not be able to return to his pre-accident occupation as a renovation worker that required frequent lifting of heavy objects; raising his left arm up to paint and to perform over-head electrical work; and changing the light bulbs or fluorescent light tubes.  He should not be able to return to his previous part-time job as a waiter, as this required good left shoulder function including holding a tray over the left shoulder, and placing the plates into the centre of table in good manner when serving meals.  With further training, he should be able to return to occupations requiring less functional demand on the left shoulder and wrist.  Examples included a cashier, a toll-collector, a worker in a gas-station, and possibly a security guard.

Concerning the duration of sick leave , in view of the severe injury, the complication of reflex sympathetic dystrophy, and the occupational demand of Mr. Ho’s pre-accident jobs, a period of sick leave of up to 2 years would be appropriate.”

and the relevant part of Dr Cheng’s report reads :

“Comments

1.    On the 8.3.2002, Ho sustained injuries to his left wrist in an accident at work.  The diagnosis was a fracture of the distal part of the radius bone at the left wrist.

2.    Ho described his fell landing on to the left wrist.  The accident was probably the sole cause of the injury.

3.    From the review of the medical reports, Ho was treated with reduction and external fixation, followed by physiotherapy.  The method was standard.

4.    However, complication of post-traumatic adhesive pericapsulities of the left shoulder appeared about three or four months, leading to pain and stiffness of the shoulder.  In spite of more aggressive therapies, the symptoms remained until now.

5.    One of the complications of fractures of the upper limb is the development of a post-traumatic capsulitis of the corresponding shoulder.  Some people like to call it reflex sympathetic affection because the injury was somewhere else in the upper limb, and the shoulder itself is not injured in the first place.  The likely explanation is that because of the initial pain on movement of the limb after injury, patients tend to tuck in their shoulder, and keep the limb still to avoid pain.  This usually occurs in the older patients, say above 60 years old.  Thus, it is of paramount importance that in the post-operative rehabilitation, physiotherapy should be advised or the whole limb.  Moving the unaffected shoulder and/or elbow joint is of utmost importance.

6.    Ho, at the time of the injury and rehabilitation, was 39 years old.  Ho was assigned physiotherapy promptly after surgery.  It is most unusual that such a complication should have developed.

7.    The present condition is that the left wrist fracture has healed up completely well with little impairments.  There is, however, pain stiffness and weakness of the left shoulder which is due to the complication of adhesive pericapsulitis.  The prognosis is fair to good.  The natural development is that with time, resumption of daily activities, there should be gradual improvement in the symptoms.  There is no point in continuing with any more therapy.

8.    The assessment of permanent physical impairments is as follows:-

(i)    fracture left wrist, with minimal residue pain and a slight reduced 1^st web space: 3% upper limb impairment

(ii)   left shoulder impairments due to adhesive pericapsulitis: 12% upper limb impairment

The total is 15% upper limb impairment equivalent to 9% whole person impairment.

9.    The loss of earning capacity, in accordance with the ECO, is computed as follows:-

Schedule 1 of the ECO stipulates that the loss of the dominant upper limb carried a 80% loss of earning capacity, LOEC.  He suffers a 15% upper limb impairment, the LOEC is therefore (15 x 80) = 12%.

       (Ho says he is left-handed.)

10.  Ho’s physical impairments are such that me may find it difficult to work in a position with the arm above the shoulder.  As such, his work as a worker of interior decoration, or electrician/maintenance worker may be affected.  In other kind of jobs, where work does not require work in an elevated position, Ho should be quite capable.  Alternative jobs are gas station worker, watchman, security guard, messenger, office attendant etc.

11.   Taking into consideration the time of development of the complication and the need for subsequent management, sick leave of up to 1 year is reasonable.”

107. The descriptions of the injuries received and the treatment given to the plaintiff are, for the most part, agreed by the two doctors.

108. Where there is a difference in the opinions expressed is in  relation to the future prognosis of the plaintiff.

109. Dr Cheng appears to be of the view that to a large extent the plaintiff has recovered from the injuries whereas Dr Lam considers that the plaintiff’s use of his left hand is still restricted and that it would be desirable for a further operation to be performed upon him.  The total cost of this being $71,000.

110. Where there is a difference of opinion between these doctors I am inclined to favour the evidence of Dr Lam.  My reason for this is that it was definitely my impression on reading all of the reports prepared that Dr Lam considered the plaintiff’s condition in greater detail and subjected him to more extensive tests than Dr Cheng did.

111. The consequence of this is that I accept that the plaintiff should be compensated on the basis of the further operation recommended by Dr Lam being performed upon him.

LIABILITY

112. As will have been noted I have held on the evidence before me that the defendant did not authorise the use of the ladder, the subject matter of this accident.

113. Mr Sakhrani asked the rhetoric question — what more could the defendant reasonably have done?

114. Mr Cheung’s answer was that they should have provided a safe system of work.

115. I am satisfied that the requirements laid down in the relevant legislation are stringent particularly in relation to work being undertaken at a height.

116. Although every case is dependent upon its particular facts it is clear from the case law that there are some functions which can properly be delegated and others which cannot.

117. After giving this matter careful consideration I have come to the conclusion that the purchase of an appropriate ladder enabling a worker to work at a height is not a decision which is amenable to delegation.

118. Indeed the facts of this case would seem to lend support to this conclusion.

119. If Mr Chan had himself purchased a new ladder this accident in all probability would not have occurred.

120. The consequence of not doing so led to the risk that the worker, even though experienced, might purchase an unsuitable ladder or one in which there were patent defects.  In his evidence Mr Chan did agree that even if a new ladder was purchased it would still be necessary to test it and examine it.  

121. I hold that the plaintiff has established that the defendant did not provide a safe system of work and that, accordingly, his claim succeeds.

122. However, I am also satisfied that the plaintiff is guilty of contributory negligence.

123. I say this because he should not, in my opinion, have deviated from the instructions which Mr Chan gave that a new ladder should be purchased.

124. More important than this I do not believe that the plaintiff who had extensive experience working at a height, sufficiently tested the ladder which was used to satisfy himself that it was suitable for the required purpose.

125. I find that the plaintiff’s contributory negligence amounts to 20% of the claim.

QUANTUM

Pre-trial loss

126. As already indicated, I am satisfied that the plaintiff’s average wage prior to the accident were $8,950 per month.

127. It is a more difficult exercise to calculate his earning capacity after the accident.

128. It can be seen that he has performed a large range of jobs in the past and he has many skills.  I do however accept, largely on the basis of Dr Lam’s report, that the plaintiff is still restricted in several ways in the scope of the employment he will be able to undertake.  I accept that for the foreseeable future he will not be able to lift heavy weights nor will he be able to work at heights.

129. The employment which may well prove to be suitable may be work as a waiter.

130. I was invited to consider the quarterly report of Wage and Payroll Statistics issued by the Census and Statistics Department of the Hong Kong Government for June 2005.  It is stated in the report that the wage of a male waiter is $8,639.

131. While I accept that the figures contained in the report are very approximate figures they do give some sort of guidance on the wages payable for the employment referred to.

132. Also it can be said that the wages payable in a number of the other types of employment of which the plaintiff has experience are not totally dissimilar to the wages payable to a waiter.

133. Before arriving at a figure it is necessary to take cognisance of the contents of the medical reports and bear in mind first, the disabilities the plaintiff suffers from and secondly, the fact that anyone with a disability such as the plaintiff suffers from is likely to find it more difficult to obtain employment than an able bodied person.

134. It is also necessary to take into account the fact that it is likely that the plaintiff will continue to be a casual worker and that there may well be periods when he has no work.

135. Doing the best I can I find that a fair estimate of the plaintiff’s post accident earnings is that he could earn $5,500 per month.

136. The next question which has to be considered is the period when the plaintiff should be deemed to have been able to work.

137. I agree with Mr Sakhrani’s submission that a fair date would be 31 December 2003.

138. This leaves a calculation of $8,950 x 21.75 minus $7,713 being the amount of salary he received for his work as a security guard in September 2003.  This gives a total of $186,950 to which must be added 5% being the Mandatory Provident Fund contributions which would have been payable, giving a total of $196,298.

139. It is then necessary to calculate loss of earnings form 1 January 2004 to the date of the trial, 14 November 2005, i.e. 22.5 months.

140. The loss of earnings during this period will be $8,950 minus $5,500, i.e. $3,450 x 22.5 = $77,625.  To this must be added the MPF contribution of 5%, i.e.$3,881, bringing up a total of $81,506.

141. The total altogether is $196,298 + $81,506 = $277,804.

142. To this must be added interest at 4.617% for 44.25 months = $47,327 making a total of $325,131.

143. Special damages have been agreed at $3,879 and interest at 4.617% for 44.25 months must be added to this, i.e. $4,540.

Post-trial loss of earnings

144.  Having regard to all of the circumstances of this case I agree with Mr Cheung that an appropriate multiplier would be 12 years.

145. Post-trial earnings will therefore be $3,450 x 12 x 12 = $496,800.  Added to this will be 5% for the MPF, which is $24,840, making a total of $521,640.

146. There is also the cost of the operation recommended by Dr Lam of $71,000, making a grand total of $592,640.

Pain suffering and loss of amenities

147. The consequences of this accident were quite serious.  As I have already indicated, the plaintiff suffered considerable pain and loss of amenities.

148. It was not only his wrist which was affected.  He went on to suffer what is colloquially referred to as a frozen shoulder.

149. It is apparent from perusing the medical reports that the plaintiff has suffered pain over a protracted period.  There is no suggestion in the reports either that he was exaggerating his condition or that he was malingering.

150. Doing the best I can on the material available I award $400,000 under this head.  To this will be added interest at 2% for one year (the date of the issue of the writ) = $8,000.

151. The summary of the award is as follows :

Pre-trial loss of learning including MPF and interest	$325,131.00
Special damages and interest	4,540.00
Post-trial loss of earnings + MPF	521,640.00
Cost of operation	71,000.00
PSLA including interest	408,000.00
	--------------
	1,330,311.00
Less 20% reduction in relation to the plaintiff’s contributory negligence	266,062.20
	--------------
	1,064,248.80
Less employees compensation award	274,229.00
	--------------
	$790,019.80

152. Judgement will enter in this sum.  The plaintiff will be entitled to his costs and costs will be assessed in accordance with the Legal Aid Regulations.

153. In conclusion I would like to express my thanks for the considerable assistance I have received from counsel.