CHEUNG KAI CHI v. CHUN WO CONTRACTORS LTD AND ANOTHER

HCPI 572/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 572 OF 2004

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J U D G M E N T

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1.  The Plaintiff was the eldest son of the Deceased.  He claimed damages for the benefit of the dependents of the Deceased pursuant to the Fatal Accidents Ordinance, Cap. 22 and of the Deceased’s estate pursuant to the Law Amendment And Reform (Consolidation) Ordinance, Cap. 23. 

2.  The Deceased died in a construction site at Choi Hung Park and Ride Development at Clearwater Bay Road (“the Site”).  The Plaintiff claimed that the Deceased died because of the negligence, breach of contract and breach of statutory duties of the Defendants. 

3.  The Deceased was a welder ganger employed by the 2^nd Defendant.  The 1^st Defendant was the principal contractor of the Site.  The 2^nd Defendant was a specialist contractor engaged by the 1^st Defendant to undertake foundation and piling work at the Site.  The 1^st and 2^nd Defendants were and are companies in the same group and insured by the same insurer.  There is thus no need to apportion the blame, if any, between them.

4.  There was an earlier employee compensation claim brought by the Plaintiff.  His Honour Judge To adjudged on 25 October 2004 that the Deceased died in the course and out of his employment with the 2^nd Defendant.  The learned Judge awarded $1,295,000.00 employee compensation and $35,000.00 funeral expenses under the Employees Compensation Ordinance.

The accident

5.  The Deceased had been employed by the 2^nd Defendant as a welder for 7 years prior to the accident.  On 13 March 2002, the Deceased started working at 8:30 am at the Site.  A few days earlier, he had been asked to do some welding repair a drill head and to erect some metal hoarding.  The drill head was to be used for bore pilling at the Site.  It was placed upside down behind a crawler crane in the Site.  It was circular in shape and had a diameter of 1.42 metres and a height of 1.37 metres.  The width and height of the rear of the carriage of the crawler crane were 2.5 metres and 1.35 metres respectively.

6.  At about 10:30 am, the Deceased asked the crawler crane signaller to direct the crane to transport an electric generator from a truck and place it at the right front of the crane.  He needed the generator for the welding repair to the drill head.  After that, the crane operator Mr Lee Tai Wai continued to operate the crane for other tasks.  The Deceased then went to the drill head and asked his two fellow welders to stop their repair work at there and to erect some railing at the hoarding.

7.  Between 10:45 and 11:05 am, the foreman instructed the crane operator to hoist a sand pump from one spot in the Site to another spot near the Site entrance.  In performing this task, the carriage of the crane had to turn from one side to another. 

8.  At about 11:05 am and after performing the above task, the foreman was alerted by a fellow worker who saw the Deceased lying on the ground between the rear of the crane and the drill head.  The Deceased was wearing protective clothing and welding gloves.  His helmet, cap and a pair of broken goggles were found in the vicinity.  Ambulance was called to sent him to the hospital but he was certified dead upon arrival. 

9.  The autopsy report reviewed extensive abrasions and bruises on the upper part of his body and his upper limbs.  There were also extensive internal soft tissue bruising on the front and back of his chest, fracture of his right scapular near shoulder joint and fracture of the bones forming the ribcage.  There were also fracture separation between the 5^th and 6^th cervical vertebra with complete transaction of spinal cord and multiple fractures of the individual vertebrae.  The cause of death as shown by the autopsy appeared to be neck and chest injuries.

10.  His Honour Judge To said in his judgment of 25 October 2004 the following:

“	6.	According to the investigation of the Labour Department, while the crane was being operated for hoisting purposes the rear carriage of the crane would travel in a slewing motion creating a trapping area between the rear carriage of the crane and the drill head.  During the rescue operation of the Deceased, the crawler crane had to be moved forward.  A re-construction of the scene of the accident showed that a clearance between the dead end of the rear carriage of the crane and the drill head was about 15 centimetres.
	7.	The severity and multiplicity of the injury which resulted in the complete separation of the cervical vertebrae and severance of the Deceased’s spinal cord suggests that the injury was caused by mechanical force.  The location where the Deceased was found, the trapping area between the rear carriage of the crane and the drill head, the fact that at the material time the crawler crane was being operated which created a slewing motion all point to one and only one inference, that is the Deceased was crushed to death by the slewing motion of the crawler crane while he was trapped between the crane and the drill head.”

11.  It was arguable whether the doctrine of res judicata would apply to these findings as the 2nd Defendant in the proceedings before Judge To only took issue of whether the Deceased died in the course and out of his employment and did not contest the exact cause of death.  However, the Defendants in this trial chose to accept these findings.  From the evidence available, I also accept these findings as the cause of death.

Liability

12.  The Defendants did not contest liability.  Their negligence was in fact obvious.  The gap between the drill head and the rear part of the carriage of the crane was too narrow and the inescapable conclusion is that the Deceased was crushed to death by the rear of the carriage and the drill head.  There was no fence or railing at the rear of the crane to guard against approach by anyone.  There was no guard or signaller posted at the rear to ensure safety when the crane was in operation.  The rear wheel mirror of the crane could not show the operator what was at the rear.

13.  The Defendants have breached Regulations 38A and 38AA of the Construction Sites (Safety) Regulations in failing to ensure that every place of work was safe.  They were also in breach of Regulation 8(1) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations in failing to maintain an unobstructed passageway of not less than 600 mm wide between any movable part of the crane and any nearby guardrail, fence or other structure.  The 2nd defendant had thus breached the contract of employment as well.

Contributory Negligence

14.  Since the trap was obvious and the risk apparent, the Defendants therefore contested that the Deceased was guilty of contributory negligence.  They submitted that the Deceased should not have gone to the place of accident.  He was the ganger of the welders.  He had ample experience in working in construction sites and had received a lot of safety training.  He knew that the crane was in use and the drill head was placed at the back of the crane.  But he still went there and turned his back to the crane.  There was no evidence that his schedule of work was tight in that morning.  He knew how the crane would move when it was in operation.

15.  The Defendants also submitted that the Deceased was in breach of Regulation 20 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations which prohibits any workman, who works on or near any lifting appliance, from wilfully and without reasonable course does anything likely to endanger himself or others.  However, I do not think there is sufficient evidence to support this last contention.

16.  The Defendants referred to me to several decisions of this Court on contributory negligence.  In Yeung Yiu Kwong v Chan Kwok Chuen and Others, HCPI 1356/1999, the Plaintiff, a team leader of air-conditioning workers, fell from a wooden platform because the backbone of the platform was defective.  The backbone was not made of a strong wooden beam, but was made of 2 short beams attached together by a piece of wood nailed to their tops at the joint.  It was the breaking of this defective backbone that caused the Plaintiff’s fall.  Mr Recorder Edward Chan, SC, found that the Plaintiff was present and had at least supervised, if not actually taken part in, the construction of the platform.  The Plaintiff should at least be aware that the backbone in question was defective as the defect was patent.  As leader of the team, the Plaintiff had the duty to make sure that the platform was safe.  On the basis of these findings, the learned Recorder held that the Plaintiff was liable for 50% contributory negligence.

17.  The next case is Lam Fuk Pau v Canton Curtain Wall Engineering Limited and Another, HCPI 488/2004.  The Plaintiff there was a plasterer.  He was plastering a window frame at the 2^nd floor level of the building.  He was then working from a platform.  The platform was not high enough for him to reach the top of the frame.  There was a temporary site office on the other side of the window and the roof of this office was high enough for him to plaster the top of the frame.  He therefore climbed to the other side of the window and stood or squatted on the beams of the roof of the office.  The roof was made of plywood nailed to the wooden beams.  The Plaintiff then stepped onto the plywood which gave way.  He fell and got injured.  Deputy High Court Judge Muttrie found that the Plaintiff was obviously negligent of his own safety when he went over to the roof of the office.  He knew or ought to have known it was not a working platform and was not safe to use it as such.  He should have instead asked his supervisor for the provision of a safe working platform.  The learned Deputy Judge accessed the contributory negligence at 50%.

18.  The third case is Yip Wai Chung v Kwong Leung Engineering Company Limited and Another, HCPI 162/2005.  The Plaintiff was a plasterer.  Just before the accident, he was working on the wall and ceiling of an open corridor on the 3^rd floor of a building.  The ceiling was 10 feet high.  He needed a working platform.  There were available on the site suitable iron tubular frames to construct a proper platform.  They were however stored on the ground floor of the site and the workers had to go there to fetch them if they wanted to construct a platform.  The Plaintiff did not spend the effort of going to the ground floor to fetch the necessary iron frames.  He instead constructed his own platform with scavenged materials he found from the site.  This platform broke and he fell and was injured. 

19.  Deputy High Court Judge Saunders held that the Defendants were negligent as it was insufficient simply to make available the materials on the ground floor and leave it to the employees to use them.  The occasional inspection of the site by the safety officer was also insufficient.  The employer must have been aware of the need of a platform. 

20.  However, the learned Deputy Judge also found that the Plaintiff knew that the iron frames were available on the ground floor, but he chose to make his own platform for convenience.  He also had extensive safety training and ought to have known of the risk in using the platform he made.  He also did not test the materials properly for the platform.  The learned Deputy High Court Judge thus fixed the Plaintiff’s contributory negligence at 50%.

21.  The last case on contributory negligence is Ma Kam Yeung v Fu Hay Kin and Others [1998] 2HKLRD 615.  The Plaintiff there was an employed carpenter.  He was engaged in the decoration of an apartment.  On the date of the accident, he was working alone.  He used a bench-mounted circular saw which was without a guard and was larger than necessary for the work required.  When he used the saw to cut a knotty piece of timber, his left thumb got in contact with the saw and was almost amputated.  Deputy High Court Judge Gill found the Employer’s negligent in supplying the Plaintiff with a substandard unguarded saw for use by the Plaintiff when it was unsafe to do so. 

22.  He however also found that the Plaintiff was an experienced carpenter and would have been aware of the potential risk of ripping a small piece of knotty timber with his hands proximate to the blade of a saw more powerful then necessary and unguarded, but he chose to proceed.  He was therefore found the Plaintiff to have 30% contributory negligence.

23.  Whilst it is useful to be enlightened on these decisions, each case must depend on its own facts.

24.  The Defendants also referred me to page 632 of Ma Kam Yeung where Deputy High Court Judge Gill had stated a number of factors for consideration of an employee’s contributory negligence.  These factors are pertinent to cases of employees being injured by the machines they operate.  To a certain extent, they are also useful for the facts of this case.  The factors are:

“	(a)	Whether the employer's liability included a breach of statutory obligations to safeguard his employees; if there is such a breach it is generally found to reduce the level of care the employee owes to himself;
	(b)	The level of skills and experience the employee has attained; the higher the level the more he is liable to look after himself;
	(c)	The degree of pressure imposed upon an employee by his employer to maintain or increase, output at the expense of caution; obviously the greater the pressure, the less the employee is to blame;
	(d)	The degree of familiarity the employee has with the machine, if it be one, which gave rise to the accident; the greater the familiarity the more the liability falls on the employee to protect himself.”

25.  Coming back to the facts of this case, it is not known why the Deceased should have gone to the location of the accident.  If he was facing the drill head, it was likely that he was examining it or the repair previously done on it by his subordinates.  It was less likely that he was just walking pass.  If he were walking pass, he would have been aware of the motion of the crane and would have taken some avoidance action.  It was also unlikely that he was facing the rear of the crane, as he would also have taken steps to escape from the impact.  I hold on a balance of probability that he was examining the drill head when the crane carriage slew around and crushed him at the back.  Otherwise, there was no cause for him to be there with his back to the crane.

26.  I accept the Defendants’ submissions that the Deceased had ample experience in working in construction sites.  He had been with the 2^nd Defendant for 7 years, not to mention his previous experience.  He was also the ganger of the welders.  He knew that the crane was being used.  The crane and the drill head had been in their positions for a few days prior to the accident.  He had received ample training on safety.  He therefore knew or ought to have known that the gap between the rear of the crane and the drill head was a risky place.  If it was really necessary for him to inspect the drill head at that time, he should have told the crane operator to stop working for a while and not to resume until he had finished with his inspection.  An employee whilst discharging his duties to the employer also owes a duty of care to himself.  I find that the Deceased had breached this duty and I fix his contributory negligence at 25%.

Quantum

27.  The widow of the Deceased Madam Leung Kwai Lin is entitled to HK$150,000.00 under section 4 of the Fatal Accident Ordinance.

The Deceased’s Earnings

28.  The average monthly earnings of the Deceased for the 12 months before the accident was HK$23,994.80.  His daily allowance was reduced from HK$100.00 to HK$50.00 in September 2001.  However, the reduction seemed to have been set off by overtime pay in the later months.  I would thus adopt HK$23,994.80 as the pre-accident monthly earnings.  Taking away HK$1,000.00 for his MPF contribution, he would have available about HK$23,000.00 per month.

Multiplier

29.  Previous decisions for construction workers suffering an accident have used 8 and 9 as the multiplier, with more occasions for 9.  Bearing in mind that the Deceased had been employed by the 2^nd Defendant as the ganger.  He was obviously a hard working person with an ability to lead.  I suppose he would prefer a longer working life if given the option.  I know that he would have to retire at 60 if he remained with the 2^nd Defendant.  But he might change employer before retirement or get a new job after retirement.  I therefore choose 9 as the overall multiplier.

30.  For the younger son, I would choose a multiplier of 7.  He is in the first year of a 2-year diploma course in the Polytechnic University.  After completing this course, he can enrol into the 2^nd year of a 3-year degree course.  This is his aspiration and I believe he can make it given the fact that he had done well in Forms 6 and 7 and had obtained a scholarship or a waiver of school fees. 

31.  For the Deceased mother, I would choose a multiplier of 6.

Dependency

32.  The bank statements showed that, subject to some very occasional fluctuation, the Deceased had been transferring HK$15,000.00 to his wife every month.  He also paid HK$2,660.00 insurance premium for the family every month.  The insurance policies included a life policy for himself and medical policies for all the members of the family.  His life insurance should have a small savings element but there is no evidence on how much it was.  In any case, the insurer has already paid the amount insured upon the Deceased’s death.  In addition, the Deceased was making a regular payment of HK$780.00 per month.  He was a frugal man.  I assume that this was a payment for the benefit of the family.  So, he would have (HK$23,000.00 – HK$15,000.00 – HK$2,660.00 – HK$780.00 =) HK$4,560.00 left for himself every month.

33.  According to the widow’s oral evidence, he also paid for the dinning out of the family at about HK$500.00 per month, pocket monies to the children at about HK$750.00 per month, maintenance to the widow’s mother at HK$1,000.00 per month, tuition fee for the younger son at HK$440.00 per month, savings to the widow at HK$2,000.00 per month and reserved HK$3,000.00 for his own use.  The total expenditure and savings as recounted by the widow exceeded the Deceased’s income by more than HK$2,000.00 per month.  I therefore do not accept the widow’s oral evidence on these payments and savings.

34.  The Plaintiff and his younger sister were already in gainful employment and making contributions to the family when the accident happened.  They both claimed that they intended to pursue further studies and the Deceased had promised to set aside HK$5,000.00 every month as an education fund.  But they did not appear to have done anything to prepare themselves for such academic pursuit.  There was also no evidence of any fund having been set-aside for such purpose.

35.  The Deceased indeed had a saving account with a bank into which he had to deposit HK$5,000.00 per month.  The monthly savings together with interest accrued would matured after 18 months.  But in the 12 months prior to the accident, 8 out of the 12 deposits came from previous savings kept in another savings account.  Only 4 deposits or a total of HK$20,000.00 came from his income.  That HK$20,000.00 appeared to be the only significant savings of the family in those 12 months.  I do not accept that the Deceased had been putting aside HK$5,000.00 every month for the further studies of the Plaintiff and his sister overseas.  This claim is unsupported by evidence.  I find that they were no longer dependent on the Deceased.

36.  The Defendants asked me to deviate from the normal rule of apportionment at 25% and apportion at 30%.  They argued that 30% of HK$23,000.00 or HK$6,900.00 would represent the amounts spent by the Deceased.  They were HK$3,000.00 for his travelling and daily expenses, HK$500.00 for family dinning out, HK$500.00 for his mother, HK$1,000.00 for credit card payments and HK$2,000.00 for savings to his wife.  However, I have already said that I do not accept the oral evidence of the wife which was the only evidence on the HK$2,000.00 savings.  It is unsupported by the banking evidence.  I therefore do not accept the Defendants’ suggestion for apportionment. 

37.  I am satisfied that the evidence shows the Deceased only had HK$4,560.00 for himself.  The rest were all for the family including HK$500.00 for his mother and HK$1,000.00 for the widow’s mother.  The Deceased’s mother has made a claim for dependency but the widow’s mother has not.

38.  The dependency of the Deceased, his wife and the younger son would be (HK$23,000.00 – HK$4,560.00 – HK$500.00) = HK$17,940.00.  This sum is very close to the total of the transfer of HK$15,000.00 and the HK$2,660.00 insurance premium.  Of this sum, I would deduct HK$3,000.00 to represent the Deceased’s share of food, insurance premium, utility and sundry expenses.  I would further deduct HK$2,000.00 as family savings.  This is a frugal family.  There is a long history of savings.  In fact on 2 February 2000, the couple had bought from the Housing Authority their flat at HK$213,000.00 and they paid the price in a lump sum.  There were also many banking documents proving a saving habit.

39.  At the time of the accident, the Plaintiff and his sister were already working and not dependent on the Deceased.  The family also had a net savings of HK$20,000.00 in the 12 months before the accident.  The balance left for the widow and the younger son would thus be HK$12,940.00.  I agree with the Defendants that there should be no compensation for DIY odd job.  The evidence on this is flimsy, it is not clear as to how much work there was that had to be done by the Deceased.  In any case, the children were all grown ups, and whatever work there was would be shared by all.

Calculation

40.  Loss of dependency of widow and younger son per month is: HK$12,940.00 / 2 = HK$6,470.00.  Loss of dependency of the Deceased’s mother per month is HK$500.00.  The dependency of the widow’s mother is included in that of the widow.  Pre-trial loss of dependency for the widow and the younger son are HK$6,470.00 x 45 x 2 = HK$582,300.00.  Pre-trial loss of dependency for the Deceased’s mother is HK$500.00 x 45 = HK$22,500.00.  The total pre-trial loss of dependency are HK$604,800.00. 

41.  Future loss of dependency for the widow is HK$6,470.00 x (9 x 12 – 45) = HK$407,610.00.  Future loss of dependency for the younger son is HK$6,470 x (7 x 12 – 45) = HK$252,330.00.  Future loss of dependency for the Deceased’s mother is: HK$500.00 x (6 x 12 – 45) = HK$13,500.00.  Total future loss of dependency are HK$407,610.00 + HK$252,330.00 + HK$13,500.00 = HK$673,440.00.

Loss of Accumulation of Wealth

42.  Before September 2004, the Deceased and his wife should be able to save up HK$24,000.00 per annum.  The savings up to September 2004 should be HK$24,000.00 x 2.5 = HK$60,000.00.  There would be no savings from September 2004 to June 2008 when the younger son studies in the Polytechnic University.  The tuition fees for the Diploma Course is at HK$33,000.00 per annum.  When he enters the degree course it will be at HK$43,000.00 per annum.  However, there will again be savings after the younger son has completed his degree course.  Initially the savings should be at HK$2,000.00 per month, which should be from the resumption of savings.

43.  By April 2009, the younger son should be able to find a job and the multiplier also ends there.  The saving should then be increased to HK$8,500.00 per month because of the elimination of the younger son’s dependency.  The total savings would be at HK$60,000.00 + HK$2,000.00 x 10 + HK$8,500.00 x 12 x 2 = HK$284,000.00.  There would also be the MPF contributed by him and his employer.  The principal of which will be at HK$2,000.00 x 12 x 9 = HK$216,000.00.

44.  Although the children have said in evidence that they would continue to make substantial contributions to the family, I however take the view that once they get married, they will have to raise their own families and save up some money to buy their own homes.  It is more likely than not that part of the savings would have to be used for the maintenance of the Deceased than his wife but for the accident.  There would however be income to be generated on these savings too.  Taking a rough and ready approach, I would award HK$450,000.00 under this head.

Special Damages

45.  The HK$1,000.00 claim for damaged clothing was agreed.  The Plaintiff also claimed HK$120,000.00 as funeral expenses.  Of this sum, HK$85,667.80 were covered by receipts.  They included small sacrificial items of soft drinks and rice wine.  The balance of HK$34,332.20 were not supported by any receipt.  Of the sum supported by receipts, HK$7,340.00 were spent on meals and taxi and coach fares for the mourners.  On the reasoning of Lau Tak Lung v Ngan Guen Min and Another [1998] 2 HKC 75, Hung Oi Mui (Intended Personal Representative of the Estate of Hung Tin Kai, Deceased) v Lam Kwok Leung and Another, HCPI 205/1998; Wong Kam Ying and Another v Man Chi Tai [1967] HKLR 201 and Wong Sau Wah and Another v Leung Kam Chung, HCA 46/1982, I will not allow this sum. 

46.  Regarding the sum of HK$24,322.20 that were not proved by receipts, the Plaintiff said that about HK$12,500.00 were paid in lucky packets to about 50 mourners at HK$250.00 per packet.  The Plaintiff said he had been advised by his elders to pay such money to the mourners for them to buy some banana leaves to wash away the bad luck and to buy some new clothing.  He was told to do this because the Deceased did not die a natural death.  I would not allow this sum as it was unreasonable and was paid for sheer superstition.

47.  For the balance of HK$21,832.20, since the expenses as supported by receipts covered all the items big and small that were reasonably necessary for a decent funeral, I do not accept that there could still be this substantial sum of HK$21,832.20 spent but not accounted for by any receipt.  I therefore disallow this sum as well. 

48.  There is an established practice to pay mourners a lucky packet containing a candy and a dollar coin.  The Defendants are prepared to pay HK$2,000.00 for this. 

49.  The net amount of special damages would thus be (HK$1,000.00 + HK$85,667.80 – HK$7,340.00 + HK$2,000.00 =) HK$81,327.80.

Interest

50.  I order interest on the award for bereavement at the prevailing rate of interest payable on the suitors’ funds from the date of death to today.  I also order interest on the accrued loss of dependency and special damages at half of the judgment rate from the date of death to today. 

51.  The total sum after deduction for contributory negligence is ($150,000.00 + HK$604,800.00 + HK$673,440.00 + HK$450,000.00 + HK$81,327.80) x 75% = HK$1,469,675.85.  After deducting HK$1,295,000.00 employees compensation and $35,000.00 funeral expenses awarded under the Employees Compensation Ordinance, the net sum payable by the Defendants is HK$139,675.85.

52.  I also make an order nisi that the Defendants do pay the Plaintiff the costs of this action.