CHUNG TIN SANG v. TONG TAI NAM AND OTHERS

CACV 204/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 204 OF 1999

(ON APPEAL FROM HCPI NO. 909 OF 1997)

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J U D G M E N T

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Keith J.A. (giving the first judgment at the invitation of Godfrey J.A.):

Introduction

1. On 1st September 1994, the Plaintiff injured his left hand while working on a construction site at Tseung Kwan O. He brought proceedings against the three Defendants in connection with his injury. The action was tried in the Court of First Instance by Deputy Judge Lugar-Mawson (as he then was). He found that all three Defendants had failed to provide a safe system of work, but he also found that the Plaintiff had contributed to the accident by his own negligence. He assessed the Plaintiff's contributory negligence at 5%. He awarded the Plaintiff damages, which amounted to $438,869.00 inclusive of interest. The Plaintiff now appeals. He contends that he should not have been found to have contributed to the accident at all. He also contends that in various respects the judge erred in the assessment of the damages.

The liability of the Defendants

2. The accident occurred while the Plaintiff was travelling with two workmates in the back of a truck from one part of the site to another. They were taking two drainage pipes from where they had been stored to where they were to be laid. Each of the pipes weighed over 2 tons. They had been loaded onto the truck by a pneumatic hoist which was between the cab and the truck. At the cab end of the truck was a metal H-shaped frame, and once the pipes had been loaded onto the truck, they rested on the lateral bar of the frame.

3. The journey took them over rough, unformed roads. During the journey, one of the pipes became dislodged and fell onto the Plaintiff's hand. The judge expressed his finding that the Defendants had failed to provide a safe system of work in the following way:

"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 [truck] as that into which the pipes had been loaded.

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."

There is no cross-appeal from that finding.

The Plaintiff's contributory negligence

4. The judge did not criticise the Plaintiff for having travelled in the back of the truck. Everyone accepted that the ethos of construction sites is that general site workers do not sit in the cab. That especially applies when they are travelling with the foreman, as happened on this occasion. The only place for the Plaintiff and his two workmates to sit was in the back of the truck.

5. The judge's finding that the Plaintiff had contributed to the accident by his negligence was based on where in the truck the Plaintiff had chosen to squat. The evidence of the Plaintiff's two workmates was that they had been sitting under the hoist's jib. That had been the only safe place to sit. The evidence as to where the Plaintiff had been squatting was unclear, though it had been somewhere between the two pipes and close to the cab end of the truck, because he had been holding onto what the judge described as a "handhold right below the pipe which fell". The judge's conclusion was that the Plaintiff

"... must .... have been aware that the position he took .... 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."

6. The Plaintiff's failure to move from a potentially extremely dangerous position to a potentially highly dangerous one is a very refined criticism of the Plaintiff. If the position which he had not moved to had itself been potentially highly dangerous, it is a little harsh to criticise him for not having moved there, even if the position where he had remained had been potentially even more dangerous. By describing the position which the Plaintiff had not moved to as potentially highly dangerous, the judge was presumably regarding the evidence of the Plaintiff's two workmates that it had been the only safe place to sit as meaning the least unsafe place to sit. That is borne out by the judge's description of the place where his workmates had sat as "the possibly least dangerous position". Having said that, I think that it was open to the judge to find contributory negligence established even if the degree of danger between the two places had not been all that great - provided, of course that the Plaintiff knew, or ought to have known, that the place where he had chosen to squat was more dangerous than the place where his workmates had chosen to sit.

7. Mr. P.H. Wong for the Plaintiff, in a clear and persuasive submission, argued that on this issue the judge made inconsistent findings. Although in the passage from his judgment which I have quoted the judge said that the Plaintiff "must .... have known" about the danger of his own position, and about the less dangerous position of his workmates, the judge had earlier said that the Plaintiff was not "so" aware. I do not think that the judge was making inconsistent findings. I think that "so" meant "as" rather than "of that". The judge was therefore saying that, although the Plaintiff may not have been as aware as his workmates of the difference in danger between the two positions, he had nevertheless been aware of them.

8. But what was it that caused the judge to conclude that the Plaintiff must have been aware that the position which he had chosen to squat in was more dangerous than the one where his workmates had been sitting? The answer is that the Plaintiff had been steadying himself by holding onto the handhold. It was onto the hand which he had been using to steady himself in that way that the pipe fell. Indeed, Mr. Neal Clough for the Defendants told us that the Defendants' case at trial had been that it had been inherently dangerous for the Plaintiff to leave his hand where it had been. The basis, therefore, on which the judge must have found the Plaintiff's position to have been so dangerous was that in order to steady himself in that position he had either chosen to steady himself by holding onto the handhold under the pipe or had no other means to steady himself. What caused that to be dangerous was the very real possibility that the pipe would become dislodged during the journey, in which case it would inevitably fall on his hand.

9. I acknowledge that this was the first day on which the Plaintiff had worked at this construction site. I also acknowledge that his workmates had not told the Plaintiff to join them, nor had they made room for him where they were (though the judge found that there would have been enough room for all three of them to sit there). But I repeat the judge's finding on the issue of liability:

"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." (Emphasis added.)

In those circumstances, the judge's implicit finding that the Plaintiff must have been aware of the possibility of the pipe falling on his hand if he used the handhold to steady himself is one which cannot be faulted. And that means that the judge's explicit finding that the Plaintiff must have been aware that the place where he had chosen to squat was more dangerous than the place where his workmates had chosen to sit cannot be faulted either. The finding of contributory negligence in the circumstances is not one with which the court is entitled to interfere.

10. There are two additional points which I should make. First, the evidence was that the Plaintiff had been warned by one of his workmates that the first position he had taken in the truck was not safe, that he had moved to a second position which he had been advised was still "risky", and that that had been when he had moved to the final position where he had squatted. On my reading of the judgment, the judge did not hold these warnings against the Plaintiff - rightly, in my view, since the Plaintiff was never actually told that his final position was unsafe. Secondly, it is unusual for a plaintiff's contributory negligence to be assessed as low as 5%. Indeed, Mr. Clough told us that he had not come across a contribution of less than 10% before. I can understand why. If a Plaintiff is held to have been only one-twentieth to blame for an accident, it may be unrealistic to regard him as having contributed to the accident at all. However, this point was not taken by Mr. Wong, and on balance I have decided not to give effect to it.

The quantification of the Plaintiff's loss

11. Three elements in the judge's quantification of the Plaintiff's loss are called into question on this appeal. They relate to (1) the number of days a month when the Plaintiff could have been expected to work but for the accident, (2) the period during which he should be compensated for loss of pre-trial earnings, and (3) the extent to which he was to be compensated for loss of earning capacity. I propose to deal with each in turn.

(1) The number of working days. The Plaintiff was paid by the day. Accordingly, the judge had to decide how many days a month the Plaintiff would have worked but for the accident. Since the accident had occurred on the first day of his employment, no trend relating to his current employment could have emerged. Nor were there any records of his work pattern in his previous employments.

12. The Plaintiff's case was that he would have worked for 26 days a month but for the accident. That was supported, to some extent, by

(a) the evidence of his two workmates, who said that they worked 25-26 days a month, and

(b) the statutory form completed by the main contractor, which stated that the average number of working days per month was 26.

The latter is of some significance. I accept that it may have been a reference to the average number of days a month on which work was available, as opposed to the average number of days a month which a worker such as the Plaintiff would actually work. But the form was a statutory notice under the Employees' Compensation Ordinance (Cap. 282), and would be used to calculate an employee's average monthly earnings for the purpose of identifying the statutory compensation payable to him. And even if the 26 days' entry in the form referred to the average number of days a month on which work was available, that should have taken account of the days in the month on which work would not have been available because of the weather.

13. The judge dealt with the issue as follows:

"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."

Mr. Wong criticised this approach on the basis that there was no evidence as to the number or length of any breaks in the Plaintiff's employment, as to the number of days the Plaintiff might be unable to work through sickness or injury, or as to the number of days when the weather might prevent the Plaintiff from working. All that is true, but that is why the judge had to make the best estimate on the material he had. Bearing in mind that the Plaintiff had admitted in evidence, in addition to the matters highlighted by the judge, that he did not normally work on Sundays or public holidays, that he took extra days off at Chinese New Year, and that he took holidays at other times in the year, I do not think that there is any basis for interfering with the finding made by the judge. Although by no means generous to the Plaintiff, the judge's finding was not, in my view, outside the ambit of acceptable parameters within which the judge's decision had to come.

14. I should add that Mr. Wong referred us to a number of cases in which the damages of workers injured on construction sites were calculated on the basis of more than an average of 22 working days a month. I do not think that these cases help. We do not know what the evidence in those cases was. Moreover, Mr. Wong told us that the cases were collated by his researcher, and it is possible, I suppose, that despite her instructions from Mr. Wong, her collation of the cases might have been selective or incomplete. In other words, there may be other cases in which a lesser average was adopted. Indeed, Mr. Clough told us that he knew of at least one comparable case in which an average of 22 working days a month had been taken.

(2) Period of loss of pre-trial earnings. The Plaintiff was certified fit to resume work on 18th September 1996. The judge concluded that the period for which the Plaintiff should be compensated for loss of pre-trial earnings should end on that date, even though there were periods of unemployment after that date. The crucial question which the judge had to decide was whether those periods of unemployment had been caused by the accident or whether they had occurred for other reasons, for example, the Plaintiff's decision not to look for work. The judge found as a fact that the periods of unemployment were not the result of the accident. The two particular findings which the judge made were that (a) the Plaintiff did not resume working until February 1997 because he had chosen not to do so, and (b) when the Plaintiff put his mind to it, he had little difficulty in finding work.

15. If these findings are to be set aside, the Plaintiff must show that they were against the weight of the evidence. The only evidence as to how the Plaintiff looked for work came from him. His evidence was along these lines. Prior to the accident, he had been living in Hong Kong, visiting his wife in Shenzhen whenever he could. After the accident, he lived with his wife in Shenzhen. He continued to do that even after he had been pronounced fit for work. It was cheaper for him to live there than in Hong Kong. He claimed that he could find work in Hong Kong just as easily if he continued to live in Shenzhen. That was because of the way construction site workers get work. His evidence on that topic was described by the judge as follows:

"Friends in the trade tell him about working opportunities and he waits for the gang leader .... to contact him with a job offer."

The Plaintiff said that he could always be contacted by phone if work was available.

16. For my part, I do not think that this was a sufficient evidential basis for the judge to find that the Plaintiff had chosen not to work until February 1997, or that when he put his mind to it, he had little difficulty in finding work. As far as I can see, there was no reason why the judge should not have taken the Plaintiff's evidence at face value. It would have been different, of course, if the judge had found, for example, that work could be obtained by simply turning up at construction sites without having been recruited as a member of a gang leader's work force. Again, it would have been different if the judge had found, for example, that recruitment as a member of a gang leader's work force required the would-be construction site worker to inform gang leaders of his availability and if the Plaintiff had admitted, or it had been found, that he had not done that. But the judge did not make such findings and the evidence on the topic, as far as I can tell, was simply what I have summarised.

17. There are two additional points which I should add. First, the judge said that the Plaintiff had admitted that he took no job prior to February 1997 "as" he was in Shenzhen with his wife. That was not the Plaintiff's evidence. His evidence was that although he had been in Shenzhen with his wife, and although he had not obtained work prior to February 1997, that had been because he had not been able to find any. Secondly, the judge's finding that the Plaintiff had had little difficulty in finding work when he had put his mind to it was said by the judge to have been what the evidence showed. I have not discerned any evidence of that at all. The only evidence on the topic was that by February 1997 the Plaintiff had found work. That did not mean that he had put his mind to it only recently.

18. I should also add that even if I had concluded that there was a sufficient evidential basis for the judge to conclude that the Plaintiff had chosen not to work until February 1997, the judge should have addressed the question whether, even if the Plaintiff had looked for work as soon as he was pronounced fit for work, he would have found work immediately. If the judge had addressed that question, he is likely to have concluded that it could have taken him at least a few weeks to find work. That is especially so when one takes into account the award made by the judge for loss of earning capacity, which recognised that to some extent at least the Plaintiff was disadvantaged on the labour market.

19. For these reasons, the Plaintiff's damages for loss of pre-trial earnings should be increased by what he would have earned from 18th September 1996 to 31st January 1997, on the basis of 22 days a month at $508.00 a day (which was the sum per day which the judge took for the Plaintiff's daily earnings immediately before 18th September 1996). I do not think that it could be said that his unemployment in June 1997 was attributable to the accident (it being attributable to the fact that his then job had come to an end), and it is common ground that the period of unemployment from 19th November 1997 until the trial was attributable to a second injury to his left hand.

(3) Loss of earning capacity. The judge decided not to award the Plaintiff any sum for loss of post-trial earnings by reference to an appropriate multiplier or multiplicand. Instead, he awarded the Plaintiff the sum of $50,000.00 for loss of his future earning capacity. The assessment of this head of loss was complicated by the subsequent injury to the Plaintiff's left hand. The judge rightly held that that injury could not absolve the Defendants from liability for the Plaintiff's loss of earning capacity as a result of the original accident. He also rightly held that the Defendants could not incur a greater liability to compensate the Plaintiff for his loss of earning capacity as a result of the subsequent injury. However, the Plaintiff was right-handed, and the judge assessed the Plaintiff's loss on the following basis:

"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 without an injured left hand. The plaintiff is entitled to be compensated for that disadvantage."

I note Mr. Clough's point that the Plaintiff had twice secured work at a higher rate of pay than that at which he had been employed at the time of the accident, but that did not prevent the judge from making an award for loss of earning capacity.

20. The award is attacked by Mr. Wong on one ground only. Although the Plaintiff was right-handed, he had injured his right hand when he was young, and as a result he may have transferred some of the functions which would normally have been carried out by his right hand to his left hand. Mr. Wong complains that, from the judge's own description of the basis on which this head of loss was to be assessed, that factor was not taken into account. It was put succinctly in Mr. Wong's skeleton argument as follows:

"Because of the Defendants' negligence the Plaintiff has injured the hand on which he most relied. When he is looking for work he is a person with two partially disabled hands, not just a right-handed person with an injured left hand."

21. It is true that the judge was aware of the weakness in the Plaintiff's right hand. He had referred to it elsewhere in his judgment. He had also referred to the medical evidence that, as a result of the two occasions on which the Plaintiff had injured his left hand, the Plaintiff may have transferred some of his functions back to his right hand. But if the language which the judge used in that part of his judgment in which he identified the basis of his assessment is anything to go by, the judge overlooked the weakness in the Plaintiff's right hand when he came to consider the extent to which the Plaintiff would be disadvantaged in the labour market. That omission entitles the court to decide the size of the award for itself.

22. There was some evidence from the Plaintiff that it was known that he was "disabled", which was, according to him, one of the reasons why, although pronounced fit to resume work, gang leaders may have been reluctant to recruit him to their teams. Taking into account the Plaintiff's total "disability", but bearing in mind that the loss of earning capacity has to be assessed by reference to the extent to which the original injury to his left hand (for which the Defendants were responsible) contributed to the effect of the pre-existing weakness in his right hand (for which the Defendants were not), I have concluded that the correct sum to award the Plaintiff under this head of loss is $100,000.00.

Conclusion

23. For these reasons, I would allow the appeal, and I would order that the award made by the judge be set aside. I would leave it to the parties to agree what sum the judgment should be for in the light of this judgment, and I would give them liberty to apply in the event of agreement not being possible. The order for costs made by the judge below leads me to conclude that this would not be an appropriate case to make an order nisi as to costs, but I would give the parties liberty to apply in the event of there being no agreement as to the costs of the action or the appeal.

Rogers J.A. :

24. I have had the advantage of reading in draft the judgments of Godfrey and Keith JJ.A. I agree with them. I too have had reservations as to whether an award of 5% contributory negligence is indicative that the degree of blame was so low that no award should have been made. On balance, I agree that that finding should remain undisturbed.

Godfrey J.A. :

25. I have had the advantage of reading in draft the judgment prepared by Keith J.A. I agree with it and with the course he suggests this court should now take. I add only this; that although I accept that we cannot disturb the judge's finding that the plaintiff was one-twentieth to blame for what happened to him, I do find this finding surprising. If "the plaintiff's own carelessness is in effect either in no sense a cause of his injury or of trivial import, there is no contributory negligence": see Clerk & Lindsell on Torts, 17th edition (1995) at 3-11. Cases in which the plaintiff's carelessness is said to be only one-twentieth part responsible for the accident would usually, as it seems to me, be cases in which that carelessness was of no more than "trivial import". But such apportionments are best left to the trial judge, and this court will only rarely interfere with them.