TSE HOI CHEUNG v. HIP HING CONSTRUCTION CO. LTD. and Others

A. No. 7930/88 and 5903/89

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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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 injuries arising out of an accident which occurred on 11th January 1986. At the time the Macau Ferry Terminal which included the Victoria Hotel and Shun Tak Centre (the site) was under construction. The 1st defendant (D1) was principal contractor. The 2nd defendant (D2) was the plumbing and drainage sub-contractor. The 3rd defendant (D3) was the air-conditioning sub-contractor. The plaintiff was employed at the site as a plumber by D2.

2. On the day of the accident, the plaintiff went to the 7th floor of the site to help adjust an overhead waterpipe which had not been properly installed. The pipe was in a recess, about 2.6 meters above the floor. The recess was fully occupied by what turned out to be the top end of an air conditioning duct (the duct) measuring 0.65 by 1.47 meters and protruding 1.35 meters from the floor. There were some planks on top of the duct. The plaintiff stood on these planks to carry out his work. When he was about to get down, one of the planks slid and the plaintiff fell through the resulting gap. In the event, he fell some 20 meters because the duct rose vertically from the first floor passing through gaps left in the intermediate floors.

3. Against D2, the plaintiff asserts breach of an implied term of contract of employment to take all reasonable precautions and to care for the safety of the plaintiff. Against all 3 defendants, the plaintiff pleads negligence and breach of statutory duty imposed by the Occupiers Liability Ordinance, Cap. 314 (the Ordinance), and the Construction Sites (Safety) Regulations, Cap. 59 (the Regulations). Each defendant denies liability, asserts that the accident was caused at least in part by the plaintiff himself, and seeks to place the blame on the other 2 defendants.

4. The plaintiff, in evidence in chief, said that he came to Hong Kong in 1981 and underwent a 3-year apprenticeship in plumbing. After he qualified, he undertook a number of different jobs for a period of 12 months until he started work for D2 on about 15th December 1985 at a daily wage of $173. He was introduced to D2 by a friend who was already working for D2 on the site. He was engaged without any interview or enquiry about his experience, D2's attitude apparently being that if he could carry out the work he was asked to do, he would remain employed; if not, he would be discharged. He was given no instructions about safety, and no safety equipment such as a safety belt or helmet was provided.

5. On 11th January 1986, the plaintiff began his day's work upon piping on the ground floor. After finishing that work, he was told by one Fong Sing, who was D2's foreman, to rectify a waterpipe on the 7th floor. Another employee, Ah Chuen took the plaintiff to the 7th floor, showed him what was to be done and then went to search for something. The plaintiff saw what he thought was a metal box, which he described as properly covered in planks, with some bricks scattered on the planks. There were other bricks on the floor which he used to climb onto the planks covering the metal box. He said there was no other way to approach the pipe which required his attention. When he finished the work he was required to do, the accident occurred in the manner already mentioned.

6. The plaintiff said he did not use and did not think that a safety belt was necessary for the work which he had to do. He said that he was inside the building and was not working at too high a level. He thought that if he fell, he would only fall a few feet. However, Fong Sing came to see him while he was in Queen Mary Hospital and told him that if someone asked about the accident, he was to say that he had a safety belt as it was a serious matter. Subsequently, when a Factory Inspector from the Labour Department interviewed him, the plaintiff told the Inspector that he had used a safety belt although in fact he had never done so.

7. In cross-examination of the plaintiff, two general matters emerged. First, that construction sites often have recesses for plumbing and other services, including air conditioning ducts, and that these services extend up through the building through holes left for that purpose in each floor. The plaintiff did say, however, that in his experience air conditioning ducts were not generally so close to the plumbing. Second, the plaintiff was fully familiar with working platforms which are required when it is not possible to reach pipes, on which work has to be done, from the floor. Further, he was experienced in making such platforms for lower positions.

8. The circumstances leading up to the accident also emerged in more detail. The work required was on the water pipe where it emerged horizontally from the recess. In particular, a short length of right angle

piping required slight realignment. This involved chipping out the cement which had been used to seal the joints at each end of this length of pipe. The joint within the recess faced towards the back of the recess. In order to gain access to this joint, it was necessary to stand on top of the air conditioning duct.

9. The plaintiff said that he learned from Ah Chuen that Ah Chuen and a team of plumbers had installed the piping the day before. Because of that and because of the bricks on the planks covering the duct, he assumed people had worked on the planks, that the planks were a working platform, and did not take any steps to check whether the planks were firmly fixed or sufficient to bear his weight.

10. Later, the plaintiff expanded upon the instructions which he had been given by Fong Sing. He said he was told that there was already a structure available at the location and he was to go straight there and do his work. Accordingly, believing that the planks had been supplied by and the platform made under the supervision of D2, he took no precaution. He repeated that Fong Sing and also Ah Chuen told him that a platform had already been constructed so, although he agreed that it would have been possible to build a safe working platform on the duct and indeed gave details of how this might be done, he said he did not do so because he trusted D2's people and their work and he expected it to be safe before anyone was allowed to work on it.

11. He conceded, however, that as an experienced plumber it was not sensible to have got on the platform without examination. He said an experienced plumber would have tested the stability and strength of the platform first.

12. The plaintiff said that in fact both he and Ah Chuen got on the planks to see how to do the work. After that, Ah Chuen said he was going to get something and, when he had gone, the plaintiff commenced the work.

13. It was not clear by the end of cross-examination at what stage the plaintiff fell into the duct. In chief, he had said it was when he finished the work. In cross-examination, however, he said he had not finished the work. It may have been that he meant when he was about to finish work for the day or even while he was still doing the work. Whatever the position, I do not think it matters greatly. Plainly, the planks moved and the plaintiff fell into the duct.

14. The plaintiff admitted that he lied to the Factory Inspector in two respects. First, in saying that he was wearing a safety belt when he was not. Second, in making reference to a metal duct which he knew to be part of the air conditioning system when in fact he did not appreciate that. He made the assertion about the safety belt because of what he had been told by Fong Sing. However, when the Factory Inspector who took the statement read it back to him, he realised he had not mentioned the safety belt. Therefore, he told the Inspector to cancel the statement and made a second statement in which the two lies were contained.

15. The statement taken from the accident file kept in the Labour Department was sought to be put to the plaintiff. After initially agreeing that it was his statement, he suddenly protested that in fact it was a fabrication by D2 and that his signature had been photocopied. As photocopies of the statement had initially been used, I explained to the plaintiff that the photocopies could be disregarded and he should concentrate only upon the original placed before him. In spite of this explanation, the plaintiff maintained that the statement was fabricated. Unfortunately, the Factory Inspector who interviewed the plaintiff and allegedly took the statement was no longer available to prove the statement. I was asked on behalf of the defendants to infer that the statement was in fact the one taken from the plaintiff having regard to the evidence of Mr. Wong Kwok Kuen, a Divisional Factory Inspector, who produced the accident file and who had supervised the Factory Inspector who carried out the investigation. I do not think it necessary to make any pronouncement upon the statement. The plaintiff clearly admitted in cross-examination that he had indeed told the Factory Inspector about using a safety belt and about realising that the box was in fact an air conditioning duct although he said that these were lies.

16. On behalf of the 1st defendant, Mr. Cheung Yuk Sui, a Safety Officer, gave evidence. I say at once that Mr. Cheung was an excellent witness whose evidence I accept without hesitation in its entirety. His evidence was important in two respects. First, he said that he and two colleagues between them patrolled the whole site everyday. He was on the look out for infringements of safety rules and for any dangerous situations which might need correction. He made notes of such matters in a note book. Before the accident, he had had occasion to make complaints to D2 about one or two workers not wearing helmets or safety belts.

17. Accepting that evidence as I do, it contradicts the evidence of the plaintiff that he never was provided with safety equipment by D2. Plainly, if he had not been so equipped, he would quickly have come to the attention of Mr. Cheung or his colleagues.

18. Second, Mr. Cheung said that he had passed the scene of the accident only the day before when he saw two wooden planks placed on the duct side by side with a gap of between eight and ten centimetres at either side of the duct. He did not know who had put these planks on the duct. However, he said that it is common practice on construction sites that when an air conditioning duct is being installed and installation stops, planks will be placed on the top of the ducting to prevent things falling in. The same is done with pipes which are often covered with newspaper to prevent objects from entry.

19. Mr. Lau Pak Choi gave evidence on behalf of D2. At the time of the accident, he was an assistant foreman on the site. He, too, was an excellent witness who gave careful thought to the questions put to him and was clearly doing his best to recall, accurately and honestly, things that happened some nine years ago. Again, I accept his evidence. He said that he was responsible for allocation of work up to the 23rd floor in the Victoria Hotel. He gave instructions to workers including the plaintiff. When a worker commenced a new piece of work, he went with the worker to show him what was to be done and to ensure that all necessary safety precautions were taken. Every morning, he reminded workers in general terms of the need for safety precautions. He adopted this practice in relation to the plaintiff.

20. Mr. Lau was familiar with the need for working platforms. He made it plain that there was no difficulty for him in obtaining either ready-made platforms, or the materials necessary to make such platforms, from D1 by asking D1's foreman.

21. When a plumber or gang of plumbers had finished a particular piece of work, Mr. Lau would check that work within a day or two. If he was satisfied with the work, there would be no reason for any plumber to return to do any further work there. He said that the water pipe where the accident occurred had in fact been installed one or two weeks before the accident. At the time the duct was not there and the hole in the floor slab had been properly covered by boards. He checked the work and was satisfied with it. He himself had given no instructions for the plaintiff, Ah Chuen, or anyone else to return to carry out remedial work.

22. Mr. Lau did not know whether Fong Sing had given instructions for any work to be done on the pipe. He said, however, that it was fair to assume that the plaintiff and Ah Chuen would not have gone to do work there unless they had received instructions (D2 was in some difficulty over this because, during cross-examination of the plaintiff, it was put that Fong Sing had never given any instructions for work on the pipe. This was not pleaded and was at variance with the way in which the case had been conducted up to that stage. Mr. Thomson for D2, after taking instructions, declined my invitation to seek an amendment. It was, therefore, not surprising perhaps that Fong Sing was not called to give evidence).

23. Mr. Lau also said that no one outside of D2 would have known that the work in question was going to be carried out. He said he realised the need for a special working platform in order to carry out this work and would have approached D1's foreman about this, as indeed he would have approached the person in charge of the site for permission to use the air conditioning duct.

24. One other witness gave evidence, Mr. Shahbundri Jufri, who was called as an expert on behalf of the plaintiff. I am unable to attach very much weight to his evidence for two reasons. First, although Mr. Jufri has apparently given evidence on a number of occasions in an expert capacity, this was one of the first, if not the first, cases in which he had been involved in an expert capacity. He was, therefore, not fully familiar with the way in which to conduct himself. Accordingly, he based his report and evidence solely upon the somewhat brief report of the Factory Inspector and the statement made by the plaintiff to that Inspector. Mr. Jufri made no other enquiries although he conceded it would have been better had he done so. Second, Mr. Jufri was insistent that D1, as principal contractor, was responsible for all accidents that occurred on the site. He made this assertion upon the basis of a combination of D1's contractual responsibility for construction to the employer and some general responsibility imposed upon D1 by virtue of the Factories and Industrial Undertakings Ordinance, Cap. 59 and the Regulations. D1's contractual responsibility to its employer is of no relevance. While the statutory responsibility placed upon D1 is wide, it does not, by any means, impose an absolute liability on a principal contractor for all accidents however they may occur.

25. Mr. Jufri did, however, say that working platforms must be made by a competent person working under competent supervision because of the provisions of Regulation 38C. Someone competent in his own field, e.g. a plumber, may not necessarily be competent in relation to working platforms. In contrast, he said, the plaintiff showed his incompetence by accepting some loose boards or planks placed on top of the duct.

26. Mr. Jufri also said that if the plaintiff knew that the planks were resting on an air conditioning duct and not a box, but failed to ensure there was a safe working platform and instead insisted on working on it, then he was at least contributorily liable.

27. In spite of the admitted lies and what was plainly a false assertion about safety equipment, I find myself able to accept much of the plaintiff's evidence. I do not, as I was invited to do, reject it in its entirety. Apart from his outburst about the statement, the plaintiff was a composed witness who was on the whole trying to remember what occurred many years ago. He made no attempt to exaggerate his injuries. He had made impressive efforts to rehabilitate himself.

28. I am, however, unable to accept that the plaintiff did not know that what he said was a metal box was in fact the top of the duct. I reject this evidence because of the admitted lies told by the plaintiff and because of the plaintiff's nearly six years of experience in and around construction sites which would have left him in no doubt as to the nature of the structure on which he climbed.

29. I find the following facts. The plaintiff was instructed by Fong Sing to assist Ah Chuen in rectifying the alignment of the water pipe on the 7th floor. That water pipe had been installed a week or two previously and the installation had then been passed as satisfactory by Mr. Lau. The plaintiff realised that the metal work at the scene was the top of an air conditioning duct and not some nondescript metal box. The duct was covered by two planks. The two planks were not a working platform as defined in and required by the Regulations. Neither D3 nor D1 knew, nor could they have been expected to know or anticipate, that D2 would carry out further work on the water pipe which had been previously installed. D1 had provided on site sufficient and satisfactory material for the construction of working platforms when required.

30. In the light of my findings, what liability if any has the plaintiff established against the defendants. I can deal with D3 very shortly. Mr. Clough for D3 made a submission of no case which at the time I rejected. It was conceded by Miss Lee for the plaintiff that D3's liability, if any, arose only by virtue of the Ordinance. There was and still is no dispute that all the defendants were occupiers and that the plaintiff was a visitor for the purposes of the Ordinance. It was Mr. Clough's argument that if D3 was not liable at common law or by virtue of the Regulations, no greater liability attached to it by virtue of the Ordinance. Mr. Clough argued that the Ordinance identified the persons by whom or to whom a duty of care is owed but did not change the standard of that duty of care. Consequently, he said, if D3 was conceded not to be liable at common law, it could not be liable under the Ordinance.

31. It was Miss Lee's argument, in essence, that D3 as occupier of the duct should in some way have warned or protected against the danger constituted by that duct because of the long drop within. However, if, as she conceded, D3 was not required to discharge any such duty at common law, I am satisfied, having now had an opportunity closely to consider the Ordinance, the authorities and the evidence, that there could be no such independent duty attaching to D3 by virtue of the Ordinance alone. The issue for the court, whether considering breach of the common duty of care under the Ordinance, or a remedy at common law, will always be one of fact, namely, has the duty to take reasonable care been broken? If, in this case, D3 was not in breach of its duty at common law, it could not be in breach under the Ordinance. Accordingly, the plaintiff's claim against D3 must be dismissed.

32. The plaintiff's claim is first based on negligence. At common law, the duty of an employer to his servant is take reasonable care for his safety. That duty is discharged by, amongst other things, supplying safety equipment and establishing a safe system of work. In the present case, as I have found, D2 did provide safety equipment and took steps to ensure that it was used by its employees. Further, it had established a safe system of work because, on Mr. Lau's evidence, the assistant foreman accompanied workmen to a new piece of work to ensure that safety precautions, including the provision of proper working platforms, were in place. Working platforms, if not immediately available, could be obtained by reference to D1's foreman.

33. Unfortunately, on the day of the accident it is plain that the system failed because no one in a supervisory capacity from D2 had checked that a proper working platform had been provided on or above the duct; alternatively, had signally failed to assess the merits of two loose planks or boards lying on top of the duct as a working platform. There are, of course, situations where the taking of safety precautions and the selection of working platforms can properly be left to an employee who is known to be of suitable skill and experience. This was not such a situation. The position of the water pipe above the duct and the difficulty of gaining access to it clearly called for a proper assessment of the situation by someone in a supervisory capacity, such as Mr. Lau or Fong Sing, who had the necessary skill and experience to determine what sort of platform was required, how it should be constructed and what steps should be taken to ensure that no damage would be done to the work of another sub-contractor, i.e. D3.

34. I am satisfied in the circumstances and so find that D2 was in breach of its duty of care to the plaintiff.

35. D1 did not employ the plaintiff. It, therefore, owed no duty of care to the plaintiff by virtue of that relationship. Any duty owed by D1 arose essentially by virtue of its position as occupier. I propose, therefore, to deal with its liability under that head.

36. The plaintiff next claimed under contract for breach of implied terms in his contract of employment with D2. Insofar as it might be necessary, I would be prepared to find that in the somewhat casual relationship which existed between the plaintiff and D2, there was indeed an implied term that D2 would take care for the safety of the plaintiff. For the reasons which I have already given, I would also find that D2 was in breach of that duty.

37. In relation to the Ordinance, the plaintiff's submission is this. D3 had constructed an air conditioning duct which it knew had a vertical drop of twenty metres inside. This created a dangerous situation. D3 was therefore under a duty to warn those lawfully working at that place of the danger. Kimber v. Gas Light & Coke Co. [1918] 1 KB 439 was relied upon, that being a case where it was found that gas fitters should have warned a visitor to a house that a floorboard had been removed upstairs where the lighting was not good. The need for a warning in those circumstances is obvious. The need for a warning in the circumstances of this case is less obvious. The top of the duct was sufficiently high above the floor to prevent any casual fall. Only if someone chose to climb up or perhaps sit on the duct would any danger arise. There was no reason on the part of D3, or indeed D1, to think that anyone would climb on the duct other than for the purpose of reaching something overhead. There was, however, no reason for D3 to believe that this was likely to happen. On the evidence, not even Mr. Lau knew that work was to be done on the pipe by employees of D2. A fortiori, D3 would not know. Further, it was the practice for a sub-contractor to be consulted by another sub-contractor before work was carried out which would touch or possibly damage the first sub-contractor's work. D3 could have expected to have been approached if D2 or anyone else intended to use the duct for access to overhead work.

38. In the circumstances, I do not find a warning to have been necessary. Accordingly, no liability can attach to D1 or D2 under the Ordinance. Nor indeed to D3, had I been wrong about dismissing the action against it upon the basis of Mr. Clough's argument.

39. Finally, the plaintiff relied upon breach of certain of the Regulations. Miss Lee abandoned Regulation 38P, which requires the railing or covering of an opening where a person is liable to fall a distance of more than two metres, and Regulation 40 which relates to the fencing of excavations in the ground. She relied, therefore, upon Regulations 38A and 38L which read as follows :

"38A. General

Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that -

(a) there is, so far as is reasonably practicable, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works, which access and egress shall be properly maintained; and

(b) every place on the site at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there. ...

38L. Construction of working platforms, gangways, runs, etc.

The contractor responsible for a construction site shall ensure that -

(a) every working platform, gangway or run from any of which a person is liable to fall a distance of more than 2 metres is either closely boarded, planked or plated, or is a platform consisting of open metal work having interstices none of which exceeds 3 800 square millimetres in area;

(b) every board or plank forming part of a working platform, gangway or run is -

(i) of sound construction, adequate strength and free from patent defect;

(ii) of a thickness capable of affording adequate security having regard to the distance between the supports and be not less than 200 millimetres in width and not less than 25 millimetres in thickness or not less than 150 millimetres in width when the board or plank exceeds 50 millimetres in thickness;

(iii) rests securely and evenly on its supports;

(c) no board or plank which forms part of a working platform, gangway or run projects beyond its end support to a distance exceeding 150 millimetres unless it is sufficiently secured to prevent tipping."

40. The words "the contractor responsible for any/a construction site" mean, where there is more than one contractor at work, the principal contractor. Accordingly, it is at D1 that these regulations are aimed.

41. Mr. Hingorani, for D1, argued that the planks on the duct did not constitute a working platform. I disagree. Whether or not something constitutes a working platform must depend upon the facts of the case. The facts as I have found are that the plaintiff and Ah Chuen were told by Fong Sing to go and work on the 7th floor where everything was ready. There is, of course, a confusion as to who placed the planks on the duct and whether they were wooden planks or pieces of fibre board. Miss Lee, for the plaintiff, did not ask me to make any finding as to who placed what on the duct. I agree that it is not necessary. Plainly, D2, through Fong Sing, either placed planks or boards on the duct, or adopted planks or boards which had already been placed there by someone else, as a platform from which the plaintiff and Ah Chuen could work on the pipe. It is no more than common sense that those planks or boards constituted a working platform, however inadequate it may have been. That platform did not conform with the requirements of Regulation 38L.

42. In A.G. v. Shun Shing Construction and Engineering Co. Ltd. [MA 1985, No. 511], the Court of Appeal, in its judgment delivered on 18th September 1985, held that the word "ensure" in what was then Regulation 37(1), meant what it says, namely, if the prohibited act occurs, there has been a failure to ensure that it did not occur. The court pointed out that the word was not qualified by words such as "take reasonable care to".

43. Accordingly, I find that, very technically, D1 was in breach of Regulation 38L.

44. In relation to Regulation 38A, Miss Lee relied upon paragraph (b). She said that the issue was whether it was reasonably practicable for the place where the accident occurred to be made and kept safe for any person working there.

45. Assistance as to what is "reasonably practicable" is to be found in Munkman, Employers' Liability, 11th edition, page 224 where, on the authorities, it is shown that "practicable" means that which is feasible or which can be done. Something does not become impracticable merely because it is inconvenient. At page 225, Munkman deals with the qualification "reasonably" and says,

" If, instead of saying that 'all practicable measures' are to be taken (as in the Factories Act 1961, s. 63)2 the statute limits the obligation to what is reasonably practicable (as in s. 29(1) of the same Act), this introduces a qualification : nevertheless, something more than reasonable care is still required (see the remarks of Tucker LJ in Edwards v National Coal Board [1949] 1 KB 704 at 709, [1949] 1 All ER 743 at 746 and Marshall v Gotham Co Ltd [1954] AC 360, [1954] 1 All ER 937, passim). ...

In Edwards v National Coal Board, supra, which concerned the duty of a mine-owner to support the roof, the guiding principle was stated as follows by Asquith LJ at pp. 712, 747 :

' "Reasonably practicable" is a narrower term than "physically possible", and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are : (a) What measures are necessary and sufficient to prevent any breach of s. 493 ? (b) Are these measures reasonably practicable ?'

This passage was referred to with approval in Marshall v Gotham Co Ltd [1954] AC 360"

46. The latter case involved the support of the roof of a mine. The House of Lords held that it was the known risk which had to be taken into account and balanced against safety measures. At page 373, Lord Reid said,

"... if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable. ... The danger was a very rare one. The trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable. The precautions would not have afforded anything like complete protection against the danger, and their adoption would have had the disadvantage of giving a false sense of security."

47. Miss Lee said it was necessary for D1 to keep the place safe for everyone, not just the workers involved in this incident. She said there was a deep drop and therefore a danger. That danger was made worse by the planks or boards placed on top, whatever their purpose, because they masked the danger. She said it was reasonable to expect that someone might sit on those boards for convenience. At the very least, a notice warning of the danger should have been affixed to the duct.

48. The risk attaching to this duct, I am satisfied, was minimal. A warning of the long drop inside, however, would have caused little trouble and expense and would have alerted anyone minded to sit or stand on or over the duct of the possibility of a long fall. I find, in the circumstances, that D1 was also in breach of this regulation and of its statutory duty towards the plaintiff.

49. The question that remains is whether the plaintiff contributed towards the accident. The plaintiff was acting, as I have found, upon instructions which included an assurance that everything was ready. Having regard to the system of work instituted by D2, it was reasonable for the plaintiff to have assumed that a safe working platform awaited him. The plaintiff, however, at the time of the accident had had nearly six years experience in the plumbing trade, in and around construction sites. He professed himself to be familiar with and indeed to have constructed working platforms. It must, therefore, have been obvious to him that some boards or planks simply laid upon the top of the duct hardly constituted the sort of safe working platform to which he was accustomed. He did not, as might have been expected, take any precautions whatsoever to check that the platform was secure. He was, as I have found, aware of the duct and he might reasonably have been expected to appreciate that inside there would be a drop of some distance. I find the plaintiff, therefore, to have been contributorily negligent. I assess his contribution at 30%.

Quantum

50. The fall down the duct unsurprisingly rendered the plaintiff unconscious for some minutes. He received a cut on the chin which was stitched. He had a fracture of the left femur, a fracture of the left ankle bone, dislocation of the right ankle and a compression fracture of the fifth lumbar vertebra. The dislocation was treated with plaster of Paris. The left leg had an assortment of plates, pins and screws inserted. On 4th February 1986, the plaintiff was transferred from Queen Mary Hospital to the MacLehose Rehabilitation Centre where he underwent physiotherapy and other treatment. He was discharged from the Centre in July 1986 when he was walking with a stick. He continued to have physiotherapy treatment three times a week as an out-patient until May 1987, at which time, he was readmitted to hospital for a few days because the pain killers with which he had been treated had caused ulceration of the stomach.

51. The plaintiff's sick leave ended in April 1988. He took up work as a watchman but after two months was dismissed because he was taking too much sick leave. In July 1988, he returned to hospital for one month when the plates and screws were removed. He was able to resume employment in March 1989 again as a watchman. He was and still is unable to return to work as a plumber. He still feels pain from time to time and has to consult a doctor. He last saw a doctor in September or October 1994.

52. Before the accident, the plaintiff was an active man who enjoyed basketball, swimming, cycling, jogging and other such activities. He is now unable to take part in these and is called unkind names, such as "Crippled Cheung" which embarrasses and upsets him.

53. Since March 1993, the plaintiff has been employed as a boiler room technician at Lai Sun Garment (National) Ltd. He had to qualify for such a job by taking a course for a boiler operator and another course involving electricity and water.

54. Save as to the percentage of permanent disability caused by the accident, the medical reports were agreed with two exceptions. First, Mr. Thomson said that the lumbar fracture was not discovered until some months after the plaintiff's initial admission to hospital when he was extensively X-rayed. He tentatively suggested that this fracture could have been caused after the accident. Dr. Philip Mao, who prepared a number of reports concerning the plaintiff, in his first report dated 21st June 1988 observed that the fracture was probably not seen initially after the injury. He appears to have seen nothing sinister in this. I am satisfied on the balance of probabilities that this injury occurred when the plaintiff fell down the duct.

55. Second, Mr. Thomson said that Dr. Mao, in his report dated 28th November 1988, observed that if a bony spur growing on the plaintiff's left foot was removed there was no reason why the plaintiff should not be able to resume work as a plumber. I can only say that, until this final submission, the case had proceeded on the apparently unanimous basis that the plaintiff could not return to work as a plumber. In any event, there is no evidence to suggest that this possibility has ever been pursued by anyone. Certainly, there is no evidence that the plaintiff has rejected the suggestion. In my judgment, it is far too late now for D2 to take this point.

56. Special damage has been agreed between the parties as follows :

57. Pain suffering and loss of amenities. It is agreed that the plaintiff's injuries fall into the serious category as laid down by the Court of Appeal in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. The Court of Appeal in Chan Yat Nam v. A.G. [1994] No. 92 (Civil), in a judgment dated 23rd December 1994 increased the level of awards for the various categories laid down to take account of inflation. The scale of award for serious injury now ranges from $250,000 to $335,000. Miss Lee seeks an award of $350,000 to take into account the increased expectation of life in Hong Kong for which an allowance was made by the Court of Appeal in the latter case.

58. Mr. Clough, whose approach was adopted by Mr. Hingorani, contended that the plaintiff's injuries fall at the top end of the serious category and suggested that $280,000 is an appropriate award. Mr. Thomson argued for an award of $250,000.

59. I am quite satisfied that the plaintiff's injuries fall at the top end of this category and that a proper award is $335,000. I do not make an award for an increased expectation of life. The Court of Appeal declined to lay down fresh guidelines to reflect such an expectation until full argument had been heard. The Court of Appeal noted that the plaintiff in that case was a member of the Police Golf Team and played the game regularly, something that would have been virtually impossible for a police constable in the 1970s or even early 1980s. The plaintiff in this case, however, came to Hong Kong from China in 1981. He left his wife and children in China and visits them very occasionally. It was his assertion that he works on average 30 days per month so that he had little time to devote to the activities which he said he used to enjoy before the accident. Those activities, any way, were not anything out of the ordinary. It seems unlikely that the plaintiff would significantly change his life style in later years.

60. Future loss of earnings. It was agreed that, if the plaintiff had been able to return to work as a plumber, he would now be earning $600 per day. Miss Lee submitted that it would be appropriate to quantify future loss of earnings on the basis of 28 working days a month. Mr. Clough, supported by Mr. Hingorani and Mr. Thomson, said that taking into account public holidays, the uncertainties in the construction industry, that the plaintiff would have to change job from time to time and visits to his family in China, it would be more realistic to approach the quantification upon the basis of 26 days per month. I note that 26 days per month is the figure upon which Government's statistics seem commonly to be based.

61. The plaintiff gave evidence to the effect that he prefers to work during public holidays, particularly Chinese New Year, because of the extra pay that is available. He said that visits to his family are limited, perhaps only twice in three years when he would go back for ten odd days. Notwithstanding that evidence, which I do not reject, I am of the view that in the long term it would be more realistic to expect the plaintiff to have worked on average 26 days per month. I, therefore, adopt that figure which would produce monthly earnings of $15,600.

62. In 1994, the plaintiff's average monthly earnings appear to have been about $10,500. The monthly loss of future earnings is therefore $5,100.

63. Miss Lee produced a table of multipliers, used between 1983 and 1991, taken from the Hong Kong Law Journal. She suggested that for the plaintiff, who is now 41, a multiplier of 12 would be appropriate.

64. Mr. Clough said that a multiplier of 7 would be proper. He said that an assessment of damages is designed to produce proper compensation from the date of the accident. He said that I should take into account the lapse of time - nine years - since the date of the accident, as a result of which it has been possible to calculate accurately the loss of earnings incurred over that period, a substantial sum which the plaintiff will shortly receive.

65. I entirely accept that the court's task is to determine what compensation a plaintiff should receive for injury and loss incurred as a result of and since an accident. I accept that if a significant period of time has elapsed since the accident, then the multiplier to be used by the court will necessarily be diminished. I do not accept, however, that because the plaintiff will receive a sum which reflects loss of earnings already incurred, that should diminish a multiplier which the court thinks to be appropriate having regard to the age of the plaintiff at the time of the assessment, the period for which he would have gone on working in his particular occupation and the uncertainties attendant upon that occupation. The multipliers which have been used for plaintiffs of approximately the same age as the plaintiff in this case and engaged in manual work of the type previously undertaken by the plaintiff range from 7 to 13. In my judgment, the correct multiplier to be used in this case is 11. That produces the following result,

$5,100 x 12 x 11 = $673,200.

66. I am not minded to make an additional award for a possible handicap in the labour market in future. The plaintiff is, if anything, better qualified now than he was before the accident. It is greatly to his credit that he has made such efforts to mitigate his damage. He is now employed in a job which is much less vulnerable to the sort of uncertainties that beset the construction industry and the casual employment conditions met there. There is no indication nor reason to believe that the plaintiff's job is under threat or that the plaintiff is likely to be cast on the market again. Consequently, there is no basis for an award for this hand.

Total damages are therefore,

 

67. The plaintiff has to give credit for payment of an employees' compensation award and other benefits, totalling $250,077. Net compensation is therefore $1,384,562.95.

68. After taking into account, the plaintiff's contribution of 30%, I give judgment for the plaintiff against D1 and D2 for $969,193.00.

69. I will hear the parties further on the question of contribution, interest and costs.