CHUNG TIN SANG v. TONG TAI NAM AND OTHERS

HCPI909/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 909 OF 1997

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J U D G M E N T

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1. The plaintiff is a 49 year old unskilled construction site labourer. He injured his left hand in the course of work on 1 September 1994. The place where the injury occurred was a Government land-fill site at Tseung Kwan O in the New Territories, known as the SENT Landfill Site.

2. The 3rd defendant, Leighton Contractors (Asia) Limited, are or were, the main contractors at the site. The 2nd defendant, Max Strong Limited, was a sub-contractor of the 3rd defendant. And the 1st defendant, TONG Tai-nam, was a sub-contractor of the 2nd defendant, and the direct employer of the plaintiff. Essentially, the first defendant is a gang leader who puts together a team of labourers and hires out his own and their labour to others.

3. The site and all the injuries occurring on it, are covered by an insurance policy taken out by the 3rd defendant, Leighton. Under its terms, I am assured by Mr Neil Clough, counsel for the 1st and 3rd defendants, the insurer will indemnify the 1st, 2nd and 3rd defendants from all claims.

4. The 2nd defendant has not defended this action, and was not represented at the hearing.

5. As to the accident itself, apart from one detail, how it occurred is not substantially disputed. The 1st of September 1994 was the plaintiff's first day in the 1st defendant's employ. He was taken to the site with other employees of the 1st defendant in the 1st defendant's van, arriving there at around 9 o'clock in the morning. The plaintiff and two work-mates, Mr LAM Hei-ming, the second defence witness, Mr CHOW Shun-sang, the third defence witness, also employees of the 1st defendant, were instructed by the 1st defendant to assist in transporting two land drainage pipes from a store place to the area where they were needed to be laid in an excavation.

6. Each pipe was approximately 30 feet long, about 24 inches in diameter and is estimated to have weighed over two tons. In the pleadings, they are described as HDPE pipes. The 3rd defendant, Leightons, had hired a lorry driver and a lorry to do the moving of the pipes. This lorry had a flat bed with a wooden wall along both lateral sides and a wooden wall at the side behind the driver's cabin. At trial, this flat bed arrangement was referred to as "the tray."

7. Between the cab and the end wall of the flat bed, was a crane, or from the description given at trial, more accurately a pneumatic hoist. This was used to lift the pipes. Also at the end of the flat bed, right behind the driver's cabin, was a metal frame, H-shaped, with its lateral bar just above the height of the cabin and with its upper extremities of the vertical bars sticking up above each side of the cabin.

8. The 3rd defendant had also sent along a foreman to supervise the entire operation. This man was not named and not identified at trial. The pipes were loaded on to the flat bed with the aid of the hoist. Nylon belting was secured at each end of each pipe, and the hoist's hook lifted the pipes by lifting up the belting at a position roughly half-way along the pipe's length. The driver operated the hoist. Its controls were at the base of a central column, and he also supervised the loading operation.

9. The plaintiff and his two workmates assisted in positioning the pipes on to the lorry. Once they were loaded on to the lorry, one end of each rested on the lateral bar of the H shaped frame, and the pipe protruded some distance over the lateral bar. The other end protruded over the end of the flat bed. Each pipe was, therefore, laid at an angle on the flat bed. There was one on each side of the hoist.

10. The driver was responsible for securing the pipes. To do this, he tied nylon belts across the pipes, securing the end of the belts to fastenings on each side of the lorry's flat bed. He also lowered the jib of the hoist on to a wooden beam laid across the pipes, effectively clamping the pipes onto the flat bed. From the evidence, that was the only securing of these two pipes that was done. Once the loading and securing of the pipes was completed, the driver got into the cabin, obviously at the driver's side, and the foreman joined him in the cabin, at the passenger's side. No one at trial was able to say whether or not the lorry's cabin could accommodate two or three people. The plaintiff and his two workmates climbed on to the flat bed. There is no dispute that no one ordered them to do so. All three men, in giving evidence, spoke as if it was normal practice for general labourers to do this and travel in the bed of such lorries. The hierarchy of a construction site being such, that it is expected that the foreman will travel in some style in the cabin.

11. The lorry then set off from the storage area to the part of the site where the two pipes were needed to be laid. No witness, according to my notes, was able to say exactly where on the site that place was, but all appeared to agree that the lorry drove across the site on rough ground, not over formed site roads. It was expected that the plaintiff and his two workmates would assist the driver in unloading the pipes from the lorry with the aid of the hoist, and manoeuvre them into place in the excavated trench at the site of the excavation.

12. There is some divergence as to where in the lorry the three men were. The plaintiff says that he was, and I quote from my notes, "somewhere between the two pipes at the front part of the tray, near to the cabin." He said that his hand was holding onto a handhold right beneath the pipe which fell. This, he said, was the second position he had taken on the flat bed. All he could say about the first was that it was at the front part of the tray, near to the cabin. He said in cross-examination that he believed his two workmates were on the other side. I understand that to be the right-hand side of the pipe, between the right-hand lateral side of the pipe and the right-hand side of the wall of the flat bed.

13. His workmates, Mr LAM and Mr CHOW, said that they were between the two pipes, sitting down under the arm or jib of the hoist, as this was the only safe place on the flat bed. Both said that there was enough room beneath the jib for all three men to sit. Both of them said that the two of them steadied themselves by holding on to the jib of the hoist.

14. The plaintiff admitted that one of his workmates had warned him that his original position was not safe, and that in consequence of that warning, he had moved to the second position. He also admitted that he had, again, been warned that the second position was, again I quote from my notes, "risky".

15. Both Mr LAM and Mr CHOW said that they had given warnings to the plaintiff. The plaintiff said that no one had instructed him where to position himself on the flat bed, or where a safe spot was there. Not even his two workmates had advised him where a safe place was. Mr LAM Hei-ming said that the defendant had originally been under one of the pipes. He had warned him to move to the centre. The plaintiff did so, but still had his hands near to the front. Mr CHOW said that the defendant had moved position two times, but had remained at the front of the flat bed. He had moved only slightly to the left after the first warning.

16. Somewhere on the journey from the storage site to the excavation site, one of the pipes became dislodged. Its front end slipped off the lateral bar of the H shaped support, and it fell on to the bed of the lorry. In falling, it hit the plaintiff's left hand, injuring it.

17. The injury that the plaintiff suffered was a de-gloving injury of his left hand. There was a deep laceration of his left hand, with a peeling off of the skin and underlying tissue. There was no fracture of any bones in this hand. He received emergency treatment at - I believe - the United Christian Hospital. The muscles to the thumb were damaged, and a branch of the median nerve was cut. The damage was repaired under operation. Post-operatively, the left hand was supported and the plaintiff received nine months' physiotherapy.

18. His recovery was slow. The plaintiff experienced numbness in his left hand, and a weakness in pinching objects. A second operation was performed on the hand on 17 November 1995, in which a tendon of the plaintiff's left hand ring finger was transferred to the thumb to produce thumb opposition. The plaintiff received further post-operative physiotherapy. Even after the second operation, the power of his left hand remained weak, with only slight improvement in the numbness of the left hand's index finger.

19. On 17 November 1997, the plaintiff again injured his left hand at work. At this time he was working at the airport construction site, when a pneumatic drill he was helping steady for its operator, hit his hand. He was admitted to the Tuen Mun Hospital and underwent an operation fixing a K-wire to the left hand's thumb. Again, regrettably, this operation was not a success and a second operation, this time on 29 October 1998, led to a wire loop fixation of the thumb. In layman's terms, he cannot now flex the thumb of his left hand.

20. As to liability, there is no doubt in my mind that each defendant failed to provide a safe system of work. It was inherently dangerous to transport two large heavy drainage pipes in such a position as was done here, particularly when the only means used to secure them was a lashing by two nylon belts and the clamping effect of the hoist's jib. That danger was exacerbated when it was expected, as it clearly was, that the workmen responsible for manoeuvring those pipes would have to travel in the same area of the lorry as that into which the pipes had been loaded.

21. The danger of one or both of the pipes slipping off the lateral bar during the course of the journey from the storage site to the excavation site should have been blatantly obvious to anyone.

22. As to contributive negligence; from the evidence it is clear that the plaintiff, Mr LAM and Mr CHOW, accepted as a matter of course that they, as general labourers, had no option but to travel with the pipes in the lorry's flat bed. That is what labourers do, no one had to give them instructions to climb on to the flat bed, they did it as a matter of course. Regardless of whether or not there were two or three seats in the lorry's passenger cabin, the ethos of construction sites is such that workmen do not travel with foremen. The plaintiff said in answer, I believe, to one of Mr Clough's questions, that he didn't believe the foreman would "welcome him" in the cabin.

23. Mr LAM and Mr CHOW were aware of the danger. They took the only possibly safe position on the flat bed, under the arm of the hoist.

24. The plaintiff, obviously, was not so aware and took what clearly was a very dangerous position. LAM and CHOW, mere workmen and fellow employees of the plaintiff's with no supervisory powers, were under no duty to provide him with a safe position or, indeed, to warn him that his position was unsafe. Given that it was expected that the plaintiff should travel in the flat bed, I don't accept that contributive negligence can attach to him by reason of his climbing in there #`~PIELA45>58$1$PIWPI]A44>65~`#with the pipes, despite the obvious danger that travel in the flat bed presented to anyone.

25. He must, however, have been aware that the position he took on the flat bed was a highly unsafe one and he failed to seek out the possibly least dangerous position, that under the hoist's jib. By failing to do so, he escalated a potentially highly dangerous situation into a potentially extremely dangerous one, and he must bear some responsibility and some measure of blame for this. However, I agree with Mr P H WONG, his counsel, that given that the defendants had put him into a highly dangerous situation in the first place, his own lack of care within that situation can only have contributed very slightly towards the accident. Taking all these matters into account, I assess his contributing negligence at no more than five per cent.

26. On liability, I find for the plaintiff against all three defendants and find that the plaintiff, through his own lack of care for his own safety in the highly dangerous situation the plaintiffs placed him, must bear responsibility for five per cent of the damages he suffered.

27. I turn now to the question of damages. On the issue of loss of earnings, the defendant's date of birth is 11 July 1949; he is now 49. At the time of the accident on 1 September 1994, he was 45. He has been a construction site labourer, a general labourer, almost all his working life. He is right handed, though he suffers from an old injury to that hand which occurred when he was a youngster. In evidence, Dr CHIANG, Arthur CHIANG, said that the plaintiff may in the past have transferred some right hand functions to his left hand, and because of the two injuries that he has suffered to his left hand in the past four years may now have to transfer some of those functions back to the right hand.

28. The plaintiff was to pay him $420 a day. There was no written contract. He was found medically fit to return to work on 18 September 1996. The plaintiff claimed in his evidence and in the pleadings that he was to be paid for 26 working days a month. He accepted in evidence that he would not have been paid for any day on which he didn't work for whatever reason, including public holidays, days he was sick and days when bad weather, including heavy rain, rendered work at the site impossible.

29. Mr LEE and Mr CHOW, his workmates, said in their evidence that they worked 25 to 26 days a month, and 26 days a month was the description of the plaintiff's terms of employment in the accident report, which the 3rd defendant's office staff compiled. As I've said, the day of the accident was the plaintiff's first day in the 1st defendant's employ, and he had no records of his work pattern in previous employments. As I understand it, he was paid in cash, and it would appear that he filed no tax returns as his income, presumably, was below declarable levels.

30. Considering the evidence as a whole, I'm of the view that 26 paid days work a month is more of a target figure than an accurate description of the number of days the plaintiff could realistically have expected to have worked a month for the 1st defendant. He is a casual labourer, who is employed as and when his labour is needed. He conceded that there are breaks between periods of employment. At his age, 45 at the time of the accident, 49 now, human frailty will mean that his risk of sickness is higher than that of a man in his 20s or early 30s. A knowledge of Hong Kong's weather pattern tells me that, particularly in the summer months, there will be a considerable number of days when heavy rain closes down an outdoor construction site. Mr Clough argued that 20 days work a month was a more realistic figure. I believe that is probably less than generous. I accept that, on average, the plaintiff could have reasonably expected to have worked 22 days a month in his employment with the 1st defendant.

31. The next question is how long was the plaintiff put out of the labour market as a result of the accident on 1 September 1994? In the amended schedule of damages, as corrected at trial, the sum of $721,731.40 is claimed. This is based on a 26-day working month. It is calculated up to 1 September 1999 as the notional day of trial, a notional 60 months from the date of the accident. It includes a notional 10 per cent cumulative annual increase in wages, and gives credit for $133,472.00 the plaintiff has been able to earn since 1 September 1994 to the notional date of 1 September 1999.

32. The defendants say that this is an inflated claim. Mr Clough argues that liability pay for the plaintiff's loss of earnings ended on 17 September 1996, the day before the doctors certified the plaintiff fit to resume work. Mr Clough does not contest a 10 per cent per annum increase in wages to take account of wage inflation.

33. Since the day of the accident, and again I repeat that was on 1 September 1994, to 15 March of 1999, the first real day of this trial, the plaintiff has spent his time this way: From 1 September of 1994 to 17 September 1996, he was on sick leave. From 18 September 96 to 16 October 96, he was unemployed. He worked one day as a waiter on 17 October 96. As I understood it, he stood in for a friend, taking on that friend's job as a waiter in a restaurant. From 18 October 96 to a date in January 97, he was unemployed. From February 97 to June 97, he was a construction site worker, with total earnings of $65,000. He was unemployed in July of 97. And from 1 August 97 to 19 November 97, he was a general construction site worker in the employ of Cheong Shing/Wah Keung (Brothers) Engineering Company on the airport site, earning a total of $62,400. As I understand it, he was paid at the rate of $650 a day for that employment, and for the employment between February 97 and June 97, he was paid, I believe, at the rate of $520 a day. Following his accident at the airport site on 19 November 97, he is now on sick leave as a result of that accident. Mr Clough, in his argument, pointed out the plaintiff was twice able to find work as a construction site general labourer at a higher daily wage than he earned in his employment with the 1st defendant. As I've said, in his last employment at the airport site, prior to the accident on 19 November 97 he earned $650 a day.

34. The plaintiff was questioned about how he went about finding work. His answer was that, in effect, he doesn't, he waits for it to find him. Friends in the trade tell him about working opportunities and he waits for the gang leader, a gang leader such as the 1st defendant is, to contact him with a job offer. He admitted in cross-examination, that on 17 September 96, he was found fit to return to work, but he took no job, apart from the one day's relief waiting work, as he was in Shenzhen with his wife. Likewise, he was Shenzhen with his family while unemployed in June and July of 1997.

35. He explained that this was his usual way of finding work. He said, "People know where to contact me in Shenzhen. They have my phone number." In reply to his own counsel's, Mr WONG's, questions in re-examination, he said this: Question: "How could you look for work if you were in Shenzhen?" Answer: "Many people live in Shenzhen. I can meet him in the street and have tea with him. 'Him' is my friend." Question: "Is that your usual way of looking for work?" Answer: "Most of us with wives in China live in Shenzhen and seek jobs in the construction industry this way." Question: "If there was work, could you be contacted easily?" Answer: "Yes, I had a phone."

36. From the evidence, I am satisfied that on 18 September 1996, the plaintiff was fit to return to work as a construction site general labourer and that he chose not to do so until February of 1997. In 1997, as the evidence shows, when he put his mind to the matter he had little difficulty in finding work. I see no reason why the defendants should pay for pre-trial loss of earnings past the day the plaintiff was able to resume work, which is 18 September 1996.

37. The sum, therefore, allowed under this head of claim is $239,425 made up as follows. The period from 1 September 1994 to 17 September 1996 is two years and 11 days. For the first year, on a 22 day a month working basis at $420 a day, the figure is $110,880. For the second year, on a 22 day working month at $462 a day, allowing for a 10 percent increase, the figure is $121,968 and for the final 17 calendar days, on a working month of 22 days, calculated on the basis that he would have worked 13 days at $508 a day, including a 10 percent cumulative increase on the second figure, the figure is $6,604, making a total, as I've said, of $239,452.

38. I turn now to the question of loss of future earning capacity. There is no doubt that as a result of the damage to the plaintiff's left hand on 1 September 94, his ability to manipulate tools and objects as a general construction site labourer has been impaired. The degree of impairment as a result of the 1 September 94 injury is overlaid by the exacerbation of his injury caused by the accident on 17 November 97, where he injured the same left hand. The fusion of the joints of the thumb was as a result of the second accident, that much is clear from the medical evidence. As I understand the House of Lords decision in Barker v Willoughby AC [1970] 467, the supervening accident cannot absolve the defendants from liability for the plaintiff's loss of future earning capacity arising out of the 1 September 94 accident. Neither, of course, can the defendants be charged with a greater liability to compensate the plaintiff for his future loss of earning capacity, which may have been made worse by the second accident.

39. On behalf of the defendants, Mr Clough accepted that as a result of the 1 September 94 accident, the plaintiff is put at some disability on the labour market. Dr Arthur Chiang-Si CHUNG, the defendant's medical expert, in his report of 10 January 1999, said at paragraph 6 of his conclusions that, and I quote: "If not including the disability from the second accident, the residues of the left hand and the median nerve injury would decrease the endurance and efficiency of the left hand in the prolonged use of heavy tools and equipments, and he may have to rely on the right hand. Mr CHUNG will be suitable for the lighter form of the general construction site jobs."

40. Dr Danny TSOI Chi-way, the plaintiff's medical expert, in his second report of 11 November 98, said this: "As discussed in my previous report, Mr CHUNG will encounter difficulty in resuming his pre-injury job as a construction site casual worker. General duty jobs that do not require grasping of heavy objects or handling of fine objects are preferred. Examples are security guard, cashier, messenger, cleaning worker, warehouse attendant, storekeeper and restaurant waiter."

41. Mr WONG argued that I should assess the plaintiff's loss under this head on a multiplier-multiplicand basis, if I understand his argument correctly, by taking 50 percent of his monthly earnings before the accident, calculating the annual rate and applying a multiplier of 10, which would reflect the plaintiff's current age of 49 and likely retirement age of between 60 and 65, Mr Clough argues that this is no more than a wild-guess approach. He again stressed that, in reality, the plaintiff suffered no loss of earning capacity, as he twice secured work at a higher rate than that at which the 1st defendant had employed him, and he contended that the Hong Kong approach is to take a compensatory figure.

42. Having considered both approaches, I see the strength of Mr Clough's argument. The combined effects of the fact the plaintiff returned to work in the same capacity, and at a higher wage, and the unfortunate second accident which exacerbated his injury, make it impossible for anyone to attempt a mathematical approach to calculating what the plaintiff's future earnings loss from 1 September 1994 injury could be. The most one can say is that on the job market on construction sites in Hong Kong a 49 year old right-handed general labourer with an injured left hand, must be at a disadvantage if his rival for a job is a 49 year old right-handed general labourer with an uninjured left hand. The plaintiff is entitled to be compensated for that disadvantage. The $50,000 offered by Mr Clough on behalf of the defendants, to my mind, is the right figure, and that is the amount I award under this head. That is, of course, before deductions for contributory negligence.

43. I turn now to the claim for pain and suffering and loss of amenities. Half a million dollars is claimed under this head. Mr WONG says that the plaintiff's injury falls into the "serious" category identified by the Court of Appeal in CHAN Pui-kee v LEUNG On & Another, (1996) 2 HKLR 401, and even if I find that it falls at the lower end of the serious classification, allowance must be made for inflation since CHAN Pui-kee was decided. He also pointed out that the fact the plaintiff had to undergo two operations on his left hand to correct the damage caused by the 1 September 1994 accident and was off work for two years and 17 days, shows that although at first sight his injury may not appear to have been a "CHAN Pui-kee serious" one, to this plaintiff it was a very serious one.

44. Mr Clough countered this argument by saying that the injury comes nowhere near the CHAN Pui-kee classification of "serious", and that an automatic increase for inflation was doubted by the Court of Appeal in CHENG Sun-tak v Secretary for Justice & Another, (1998) 2 HKC 551. Mr Clough suggested that the amount to be awarded under this head should be no more than $350,000.

45. Neither party put before me any figures to support or counter an argument that there has been or has not been inflation in Hong Kong. Neither did they put before me any figures to show the general movement of general purchasing power since CHAN Pui-kee was decided in 1996. I note that, in fact, that in CHENG Sun-tak, Rogers JA observed as follows, at page 558: "I would caution that any estimate inflation should be based on approved official figures, and not on a rough estimate." However, and perhaps at the expense of throwing Rogers JA's caution to the winds, no one who has lived in Hong Kong since late 1997 can fail but to be aware that the economy is in recession, that wages are static or reducing, and that price increases are generally low.

46. The Court of Appeal in CHENG Sun-tak observed that the CHAN Pui-kee ranges allow for variation to take account of inflation within each range. In this particular case, I see no need to increase the figure for pain, suffering and loss of amenity to take account of whatever inflation there may have been since 1996. I am of the view that in assessing the figure for the plaintiff's award for pain, suffering and loss of amenities, I must have regard not only to the injury from an objective point of view, that is, would a third party, armed with a CHAN Pui-kee definition of "serious" injury, grade the plaintiff's injury as a serious one? I should also have regard to how this injury has affected the plaintiff himself. Here the effects clearly are serious. He was medically unfit for work for two years and 17 days. He had to undergo two surgical operations, neither of which was entirely successful. In any man's terms, those were serious consequences to this plaintiff, and he is entitled to compensation for them. I allow the sum of $400,000 under this head, before reduction for contributory negligence.

47. I turn now to the issue of special damages. $4,740 is claimed for medical expenses, treatment and operations, and that claim is not challenged. Neither is the claim for $970 for the plaintiff's travelling expenses to attend his medical appointments. He made a claim for $10,000 for tonic food, and that is disputed. The plaintiff said that his wife in Shenzhen, on the advice of a herbalist, prepared for him each week when he went home to her in Shenzhen, a herbal broth, and that he took it during his period off work. He said he is not sure what the ingredients of this broth were, but it was supposed to aid his recovery and he, in fact, felt that it did him some good. The ingredients, he says, cost his wife about $100 a time, and he says that $10,000 is a reasonable estimate of the cost of buying all the ingredients over the period he took the broth. The ingredients, he says, were bought in the market and, obviously, no receipts were given by the market traders for them.

48. Considering this claim, I accept that the plaintiff regularly took this broth, and that he took it for medicinal purposes, genuinely believing that it was doing him some good. However, I have difficulty in accepting that the ingredients cost as much as $10,000. I award the sum of $5,000 under this particular sub-head of claim.

49. The amounts, therefore, awarded for a reduction of five per cent to take account of the plaintiff's contributory negligence are as follows: For pain, suffering and loss of amenity, $400,000. For loss of earnings, $239,452. For loss of earning capacity, $50,000, and special damages, $10,710, a total of $700,162. All figures are to be reduced by five per cent to take account of what I find to be the plaintiff's contributory negligence, and credit is to be given to the defendants for the sum of $305,581, paid to the plaintiff by way of compensation in an Employees Compensation Case No. 514 of 1996. That sum, I am informed, includes amounts paid to the plaintiff under Section 10 of the Employees Compensation Ordinance, by way of sickness benefit.

50. Interest at the rate of two per cent is allowed on the damages awarded for pain and suffering and loss of amenities from the date of the writ, 29 August 1997 to the date of assessment, that is, today's date - 7 May 1998. Interest on the special damages, including the loss of earnings, is awarded at half the prevailing judgment rate of 11.94 per cent, that is 5.97 per cent, from the date of the accident, 1 September 1994, to today's date of assessment, 7 May 1999.

51. I will now hear from counsel on the question of costs.