TSANG YUEN NAM v. HUNG YUN METALWARE CO. LTD.

HCPI 602/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 602 OF 2001

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J U D G M E N T

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1. This is an action for damages for personal injury and loss following an accident on 20 July 1998 in the course of the plaintiff's employment with the defendant.

2. The plaintiff was then employed as a metalwork technician at premises in Quarry Bay to which the provisions of the Factories and Industrial Undertakings Ordinance applied.

3. The premises were of modest size and storage space was at a premium. Sheets of various metals were placed both in racks and leaned against fixtures and walls. When one of the larger sheets was required it was a three-men job to retrieve it.

4. On the day of the accident, the plaintiff's supervisor wanted to retrieve an aluminium sheet from a pile that leaned against a wall. The pile can be seen in the photograph at page B11 of the bundle. This picture was taken after the accident when the sheets had been piled up again. The sheet to be retrieved lay about 8-10 sheets in. Accordingly the supervisor and the plaintiff stood at opposite ends of the pile and the metal sheets were turned over like turning the pages of a book. The supervisor and the plaintiff held the ends of the sheets which were turned over and a wooden strut was used to take their weight. Once the right place in the pile was reached a third man would pull out the desired sheet. Since the bottom of this sheet was wedged in at its base, like a page in the spine of a book, the supervisor and the plaintiff leaned forward and pulled it up making the job of the third man easier as he pulled it sideways.

5. Whilst doing this and without warning, more than 20 or so sheets fell forward away from the wall. It was not only the sheets that had been turned over that fell but also some of those stacked against the wall. Both the supervisor and the plaintiff were caught by them. The plaintiff did not actually see how the sheets fell but he inferred that it was the strut that slipped and let fall the sheets which had been turned over and that this in turn caused others sheets, not yet turned over, to fall. Both men were injured. The fire brigade had to be called to free them such was the weight of the sheets that had fallen and the apparent instability of those sheets still standing.

6. The defendant was subsequently prosecuted and pleaded guilty to two offences based on their failure to comply with the provisions of section 6A(2)a and 6A(2)b of the Factories and Industrial Undertakings Ordinance, which provide, subject to reasonable practicability, for the provision of a safe system of work and safety in handling material.

7. Those facts I have related are not really in dispute. It is said against the plaintiff that the system he had been taught was either to use no strut when there were than less 10 sheets and one man then stood and took the whole weight in place of any strut, or to use two and not one strut to support the turned sheets when there were 10 or more to be turned, and that he should not then have stood where the sheets might fall on him. The convictions were said to be the result only of pleas of convenience. That was said in the pleadings but no evidence was led in support of that claim.

8. On these facts I have no hesitation in finding the defendant negligent and in breach of their statutory duty.

9. The system of work for storing and retrieving the sheets was unsafe. The defendant's evidence made clear that the risk of danger to workmen from falling sheets in these circumstances was well appreciated. It was reasonably practicable to devise a system that relied on bars or poles, whether fixed or moveable, to contain the sheets such that no person was exposed to the danger of having the pile fall on them. Photographs at pages B62 and 63 illustrate a simple, cheap and safe means of storage. To rely on wooden struts, whether one or two, was unsafe. That was obviously so as the end of the strut that abutted the outer sheet was not located firmly and could always slip and this would be the more likely if a perfect right angle was not obtained. Further, movement in the turned sheets was a foreseeable incident as the men strained to free the chosen sheet.

10. I need say no more about primary liability, save to add that if the cause of the accident was not the strut slipping but the collapse of the unturned sheets then liability would follow as those sheets would not have been stored safely. Specifically they must have been too near the vertical and generally no proper means was put in place for their proper restraint and control. The live issue was contributory negligence.

11. It was not in dispute that the plaintiff was acting on the instructions of his supervisor. It was the supervisor who was in charge. As far as the plaintiff was concerned, he was doing what he was told. I find no act or omission on his part that contributed to the accident.

12. The significant factual dispute was whether there was in place a system whereby once 10 sheets were to be turned over two struts were to be used. I was satisfied that the plaintiff told me the truth in this regard. He said that the sheets were of different dimensions and weight and that no limit of 10 was sensible. He said that they always used one strut to take the weight. I believed him. He was a straightforward witness whom I judged answered questions directly with a disarming lack of guile. Mr Wong, the defendant's managing director, I judged to be telling me in his witness statement what he would have liked the situation to be rather than what it actually was. In his evidence he did not come up to proof about issuing instructions to the plaintiff to use two struts.

13. I thus reject the suggestion that the plaintiff ignored instructions to use two struts. I find that there was only one strut available. I reject the suggestion that the plaintiff was negligent. I find that all he did was at the behest of his supervisor and that they did the job in the way it was customarily done, using one strut and standing in the position habitually taken, which was the natural one to enable them to do the job I have described.

14. As a result of the accident the plaintiff, then 23 and now 27 years old, sustained a crushing injury to his right knee rupturing both front and back cruciate ligaments.

15. He was in a plaster cast for three weeks. The knee thereafter continued painful and unstable. Arthroscopy in August 1998 revealed the ligamental damage. Forty sessions of physiotherapy followed but the symptoms persisted. Following a further arthroscopy in April 1999 and more physiotherapy, he underwent an operation to reconstruct the ligaments in June 1999. He was on walking sticks for a month and a half thereafter. He had trouble with the donor site in his left knee and was an inpatient for over three weeks. Thirty-eight more sessions of physiotherapy followed.

16. He suffers residual laxity in the anterior cruciate ligament. This leaves him with a permanent instability in his right knee. Muscle wasting in the right thigh was good evidence that his complaints were genuine. Those complaints included weakness, instability and stiffness in the knee and pain on walking more than modest distances and after prolonged standing and getting up after long sitting and on squatting.

17. The result of the instability is that he is faced with difficulty in working in the squatting position and he needs to avoid heavy work. His previous job is only open to him if it precluded the lifting and moving of heavy objects.

18. Prior to the accident the plaintiff was a fit young man who played sport. The loss to the recreational side of his life is significant.

19. General damages for pain suffering and loss of amenity I put at $400,000. I was helped in this assessment by counsel, both of whom had this figure in their range for damages under this head.

20. The plaintiff was unfit for work from the date of the accident until 28 August 2000. I judge that the overtime element in the figure claimed on his behalf would have been vulnerable to the economic downturn, notwithstanding that he was working overtime up to the date of his accident. Mr Wong told me that the overtime fell off in 1999. I will therefore take a figure that includes the overtime for the first 12 months of this period but excludes it thereafter. I allow one month from the date he became fit for work for him to have found a job. So the loss from the accident until 30 September 2000 comes to some $380,071.

21. At the end of September 2000, I judge that the plaintiff was in a position to earn a wage in the region of that which he actually commenced to earn in January 2001. After allowing for some small sums earned which amounted to $2,020, his partial loss of wages from the end of September 2000 to trial comes to a further $169,055. The total pre-trial loss of wages is thus $547,106, and that has been based on a figure of $14,658 which included the year end bonus as the greatest figure and from that, as I have indicated, has been deducted the overtime payments for the period as specified.

22. As to the other items of special damage, these were not the subject of challenge and I award the sum of $25,599 in this regard.

23. There is a continuing partial loss here. The evidence satisfies me that the plaintiff is unable to follow his previous skilled employment which involved heavy lifting. His present wage is some $6,500 per month. Figures from the Census and Statistics Department show that men doing his pre-accident job have suffered no reduction in wages since the time of the accident. I will take a multiplier of 15. The multiplicand I take to be $14,083, a figure which excludes the previous overtime. The award here thus comes to $1,364,940.

24. The defendant lead evidence that their business declined after the accident and that all the employees were dismissed on 30 November 2000 and this included the man who had been taken on to replace the plaintiff. This man then chose to work as an independent contractor, and did so until July 2001 when there was no more work for him, but the others declined the new terms and chose to go elsewhere to earn their livings. They had earned their wages without reduction until this date.

25. It was thus argued that the plaintiff would have had no job and that he should therefore have no award for continuing partial loss of earnings. I reject this. The argument would only hold good if the defendant provided the sole opportunity for the plaintiff to sell his skills. This was clearly not the case. Whilst it may be the fact that some such businesses will have relocated over the border in recent years, the plaintiff roundly rejected the suggestion that he would have difficulty in finding similar employment. He pointed out that he earned more than the average in his field. The government figures revealed such workers had not suffered any significant loss of wages. No figures were available to support any significant lay offs in this area.

26. Mr Wong painted a gloomy picture of the trade in general. I was not prepared to act on his general assertions based as they were on chit chat and hearsay. If the picture he painted was an accurate one then one would expect that the average wage for craftsmen in the trade would have suffered. The figures said otherwise. His explanation that this was because there were still good wages to be had for such metal workers in the construction industry was not one that impressed me. Cross-examination on the figures suggested that he was wrong. Even if he were right the plaintiff's injury would have ruled him out for such work and there is no reason to think that he would not have turned to such work if there was no factory employment for him. This was a matter raised late by this witness and not something investigated in depth. He agreed that the plaintiff, if unfit for the factory, would be unfit for the construction site.

27. I judged that Mr Wong was very much an advocate in his own cause rather than an objective witness. His assertion that the sacking of his employees on the 30 November 2000 was only caused in part, a 10% part, by the coming into force of the mandatory provident fund the next day was one that stretched credibility. His claim that only his father now worked in the factory was undermined by his assertion that the materials were still stacked in the roughly the same manner as before as counsel for the plaintiff was able to ask how could one man alone do what had been a three-man job.

28. Thus the attempt to limit the loss of the plaintiff by reference to what occurred in just one factory and not the market place for his skills as a whole failed; the attempt to describe the market place in terms at odds with the government figures also failed.

29. On the evidence available to me, I was satisfied that the plaintiff would have been able to sustain his pre-accident earnings, less the overtime element.

30. There was a claim for loss of earning capacity. It was said that if he were to lose his present job then he would, by reason of the condition of his knee, be disadvantaged in competing for further employment. The award for the continuing partial loss of earnings compensates the plaintiff for being unable to earn at the rate of his skill. It is said that in the unskilled area he now moves in he is further disadvantaged and that there is here a separate loss. I agree. However, I judge that the extent of that loss is not too significant as for the most part his disability should not hamper him too much in the competition for jobs that do not require heavy lifting or stress on his leg. His present job is not one that carries any great security, as is witnessed by his recent employment history there. I do not pretend there is any great science in awarding six months wages at the unskilled rate for this head of damage. All I can say is that I judge that the sum of $39,000, which is thereby produced, adequately and fairly compensates the plaintiff in this regard. I exclude the overtime element from the continuing partial loss of wages on the basis of current economic woes. The same considerations lead me in part to find a risk that the plaintiff might lose his current employment and face stiff competition from fit men for further work. Given his age and the nature of his present job I judge that there was an identifiable risk that he would have to compete in his working life for other employment with fit men.

31. To be deducted from the damages I have thus far awarded was an ECC award of some $427,016 and interim payment of $250,000 and something for salaries tax. The position as regards the salaries tax is this, that if the plaintiff remains as he is now, single, then his maximum liability over the full future period would amount to some $47,880. However, if he were to get married, then that tax liability would be expunged completely because of the increase in his personal allowance. In the evidence, no one actually thought to ask him what his prospects of marriage were and I have no evidence about it. On that basis, I shall reduce the full amount to cater for the probability that he does get married, and counsel for the plaintiff very realistically says just halve it, and that is what I am doing. So, I will take half of $47,880 and make that the deduction in respect of the salaries tax.

32. It is agreed that interest be awarded on the basis set out in the Schedule which I shall annex to a copy of this judgment. The total interest comes to $113,701. I ought to have said that consequent to the findings and awards I have made, there is a loss in respect of mandatory provident fund benefit that had been set out in the Schedule and I award those as well. The amount to be deducted for the salaries tax is $23,940. The grand total awarded therefore is $1,865,432.

[Discussion on Costs]

33. Costs will follow the event and the defendant will pay the plaintiff's costs. There will be a legal aid taxation for the plaintiff.

HCPI 602/2001

COMPUTATION OF DAMAGES