KHAN AMAR v. CHEUNG YING CONSTRUCTION ENGINEERING LTD AND ANOTHER

HCPI 231/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 231 OF 2005

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J U D G M E N T

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I.   Introduction

1.  On 7 July 2002 Mr. Khan fell from a stool and injured himself while installing soffit length at a construction site.  He says that his fall was due to the negligence of Cheung Ying and Hyundai.  Cheung Ying and Hyundai accept that an accident took place in which Mr. Khan hurt his left elbow and his back.  But they deny negligence.  They also say that, even if liable, the damages claimed by Mr. Khan are exaggerated.

II.   Background

2.  Hyundai was the main contractor for a residential project site at Sham Mong Road in 2002.  It sub-contracted the system form work for Towers 3, 5 and 6 at the site to Cheung Ying.  Cheung Ying started work at the site on 14 May 2002.

3.  Mr. Khan is a steel frame worker.  As at 2002, he had 3 years' experience in his work.  Cheung Ying employed him to hang soffit length to wall panels in the flat units at the site. He started working for Cheung Ying on 2 July 2002.

4.  At between 10.00 and 10.30 am on the day of the accident, a Chinese person whom Mr. Khan could only identify as “Lo Sai” or “boss” told Mr. Khan to hang steel frame erection on one of the floors in Tower 3.  According to Mr. Khan, Lo Sai told him that there was a shortage of workers and Mr. Khan had to work alone.

5.  Soffit length is a bar which is put at the top of a wall panels to keep them aligned and to provide footing for slab panels to be erected later.

6.  To fix the soffit length, a worker needed to hang a bucket of pins and wedges at a convenient position which he could reach while standing on a stool.  A stool was necessary as soffit length had to be attached to wall panels at points which were up to about 3 m from the ground.

7.  The wall panels to which the soffit length were to be attached each had 2 side leaves with holes about 200 mm apart.  There would normally be about 15 holes at the side of each panel. Pins would be inserted into 5 of the holes (evenly spaced out) on each side in order to keep the panels in place.  That would normally leave about 10 unused holes at the side of each panel. 

8.  These unused holes could be used to hang a bucket.  That might be done by using a small metal-piece in the shape of an “S”.  One end of the “S” could be hooked into an unused hole and the bucket hung on the other end of the “S”.  Alternatively, one might wedge a pin into an unused hole and then hang the bucket on the pin.

9.  Cheung Ying had specially ordered 100 stools from Hung On Metal Ltd. for the Sham Mong Road project.  The stools were made from steel bars which were bent into shape and then welded together.  Each stool was approximately 300 mm wide, 600 mm long and 900 mm high.  Each stool had 4 legs and 3 steps (including the platform on top).

10.  Before starting work on the soffit lengths in accordance with Lo Sai's instruction, Mr. Khan looked for a stool to use.  He found one but (Mr. Khan says) the stool had loose legs and was wobbly.  He apparently complained to Lo Sai about this.  But Lo Sai (according to Mr. Khan) told him to use the stool as it was the only one available at the time.

11.  Best practice requires that one hang the bucket of wedges and pins at a point about waist level when standing on a stool.  At such point one can readily reach for wedges and pins as needed to install soffit length, while standing on the stool's platform, without having to go up and down the stool repeatedly.

12.  On the day of the accident, Mr. Khan positioned the stool so that he was about 30 cm from the wall on which he was working. Mr. Khan said at trial that he hung the bucket on a tie bar protruding from a wall panel at a point just below the level of the stool.  Mr. Khan claims that this was the only place at which he could place the bucket.  He says that all the other tie bars were too short to hang the bucket on.

13.  All parties in this action agree that Mr. Khan's chosen location for the bucket was far from ideal.  This is because it required him to move up and down the stool in order to get a pin or wedge from the bucket.  Mr. Khan should have hung the bucket a much higher point on the wall.

14.  Having mounted the stool, Mr. Khan started work.  He used a hammer to put in the pins and wedges.  He held the hammer in his right hand.  When he needed a pin or wedge, he would step one rung down the stool so that he could bend and take a pin or wedge from the bucket.

15.  At one point, having stepped down one rung to get a pin or wedge, Mr. Khan attempted to step back onto the top of the stool.  But he lost his balance and fell to the ground.  On falling, he says that his left elbow hit the ground, while his back hit the wall panel.

16.  At trial Mr. Khan said that he fell because his stool wobbled while he was standing with his left foot on one rung and his right foot on top of the stool.  Mr. Khan further blamed the fall on his holding a hammer, so that his right hand was not free to stop his fall.

17.  The accident took place at around 11.00 am.  Mr. Khan says that, immediately afterwards, he got up and then lay on the floor for 20 minutes because of the pain at his back and left elbow.  In due course he ended at the Caritas Medical Centre for treatment.

III.   Discussion

A.   Liability

18.  The circumstances of Mr. Khan's accident were hotly disputed by Mr. Kerr (appearing for Cheung Ying and Hyundai).  Mr. Kerr pointed out that over the years Mr. Khan has given significantly different accounts of what happened.  Mr. Kerr does not dispute that an accident happened.  But he contends that in all probability Mr. Khan simply lost his balance.

19.  On the other hand, Ms. Molloy (appearing for Mr. Khan) argued that Mr. Khan essentially lost his balance because he was working on a wobbly (and hence faulty) stool.  Ms. Molloy submits that in breach of duty Cheung Ying and Hyundai failed to do everything that was reasonably practical to avoid the accident.

20.  More specifically, Ms. Molloy contends that Cheung Ying and Hyundai were negligent in the following respects:

(1)     They failed to provide safe equipment.  The legs of the stool which Mr. Khan used were not of equal length.  It was unsuitable for the uneven concrete floor of the area in which Mr. Khan was working.  A much safer platform on which to stand ought to have been provided.

(2)     They failed to provide Mr. Khan with a tool belt. If he had one, he could have placed his hammer there, so that at least his right hand would have been free to help him arrest his fall and regain his balance.

(3)     They failed to provide a retractable table of some sort on which the bucket could be placed.

(4)     They failed to train Mr. Khan as to how soffit lengths ought to be installed.

(5)     They failed to have adequate supervision or inspection of workers.  Had there been regular inspection or supervision, someone would have spotted that Mr. Khan was not observing good practice.  That person could then have corrected Mr. Khan's error.

(6)     They failed to provide a co-worker for Mr. Khan.  This co-worker could have handed pins and wedges to Mr. Khan as necessary.

21.  In support of her case, Ms. Molloy relies not just on the common law duty of care, but also on the duties of a sub-contractor and main contractor under Construction Sites (Safety) Regulations (Cap. 59 sub leg.) reg. 38 to take all reasonably practical steps to make the work site safe.  She further refers to an occupier's duty to take reasonable care for a visitor's safety under the Occupiers Liability Ordinance (Cap. 314).  Lastly, she cites an employer's duties towards an employee under the Occupational Safety and Health Ordinance (Cap. 509) s. 6. 

22.  If I find Cheung Ying and Hyundai negligent, Mr. Kerr raises the issue of contributory negligence.  He contends that Mr. Khan carried out his work badly and was the author of much of his own misfortune.

A.1   What happened

23.  Mr. Khan was working alone when the accident happened.  Apart from him, no one else witnessed the event.

24.  On 12 November 2002 Mr. Khan gave the following account of his accident to an Occupational Safety Officer of the Labour Department:

“.... I hung a bucket containing metal pins on the metal panel wall about 4 feet above the ground.  I was standing on the stool with my right foot stand on the topmost step and my left foot standing on the second higher step of the stool...  I was installing metal pins on the ‘SL' [soffit length] horizontally on the wall at about 3.1 m above the ground.  I was holding a hammer with my right hand.  After I bent down my body to pick up a metal pin from the bucket with my left hand, I stood up and wanted to install the metal pin on the ‘SL'; I suddenly lost my balance and fell on the ground.  My left elbow hit the ground and my back hit the wall.  I have 3 years experience to do such metal formwork erection. I did not need any training at that time because I had good experience to do such work. The Chinese guy would come to inspect my work about 5 to 6 times a day.”

25.  On 10 December 2002 Mr. Khan clarified his previous account of events as follows:

“.... I used a metal pin to put into the hole on the metal wall panel to hang a bucket containing metal pins and metal wedges on the metal wall panel about 4 feet above the ground...  Just before the accident, I was standing on the stool with both feet.  I just finished putting a pin and a wedge ... on a hole on the side of the ‘SL' and the wall panel.  A bucket of pins and wedges was hanging nearby.  I put a pin into a hole on the wall panel so that I could hang the bucket.  When I wanted to pick up a pin and a wedge for securing another hole on the ‘SL', I moved my right leg down one step of the stool and bent my body to pick up a metal pin and a wedge with my left hand; my right hand was holding a hammer.  After that, while I was stepping my right foot back on the topmost step of the stool and was stretching my body on my way up, I suddenly lost my balance and fell on ground (I could stand on the stool with both feet and bend my body to pick up a pin and wedge but for my own ease, I like to step down one step to do so).  My left elbow hit the ground and my back hit the wall panel. No deck panel was installed yet at the time of accident.

Each storey of the building was about 3.3 m but I am not sure. I am 1.78 m tall.  When I was standing on the metal stool before the accident, the lower part of the ‘SL' ... was at my eye level.  Depending on the length of the ‘SL' (2 to 5 feet), pins and wedges are put into the holes on average 3 to 5 pins into holes.  I was wearing safety shoes, safety gloves and safety helmet at time of accident.  The stool was not slippery.  I just lost my balance and fell on the ground.

I have 3 years experience to do the same type of metal formwork erection.  I did not need any training at that time because I had good experience to do such work.  The Chinese guy would come to inspect my work about 5 to 6 times a day; sometimes he worked with me too.

I think at time of accident, the ground surface where the stool was placed was not smooth; the length of each stool leg was not the same but it was very minor difference because when I was standing on the stool and working with my movement, the stool used to move; the difference was very minor (about 5 mm); it would not cause my falling on the ground.  There were many metal stepping stools in each floor (similar size and shape to the one shown to me in photo 1); there were 3 to 4 stools in each flat for us to use for metal formwork erection.  These stools were provided by [Cheung Ying].  It was not unusual that the stool moved a little.  I used the stool (on which I lost my balance and fell) for about half an hour before the accident happened.”

26.  On 29 November 2003 Mr. Khan gave the following statement to loss adjusters investigating his accident:

“.... At about 11.00 am, I was working on the stool.  At the material time, I came down from the stool and got some pins.  I walked up again to that stool.  Unfortunately, after I stepped up 3 to 4 steps, I found the stool lost balance and I also fell down from the stool.   I landed on the ground with my back and left elbow smashed to the panel wall ....

Q1:      Did you attend any safety course at the construction site?

A1:      No.

Q2:      Who provided that metal stool to you?

A2:      My employer, [Cheung Ying].

Q3:      Did you find the metal stool was in good condition?

A3:      No, before I used that stool, I found the footlegs of stool were not balance.  I have complained this to ‘Lo Sai' but he said that there was no other stool.  So I had to use that one for work on that day.

Q4:      Did you use that stool before?

A4:      No, that was the first time I used the stool.

....”

27.  By the time of the trial, Mr. Khan's evidence was as already noted in Section II of this Judgment.

28.  There are obvious discrepancies (some substantial) in Mr. Khan's accounts.

29.  For example, in November and December 2002, Mr. Khan's case was that he stuck a pin into a hole on the metal panel and hung his bucket over that pin.  In November 2003 Mr. Khan was suggesting that he placed the bucket some distance away from the stool, so that he had to dismount from the stool entirely in order to get a pin or wedge.  At trial in March 2006, Mr. Khan's case had become that he had hung the bucket over a protruding tie bar and there was no alternative place over which to suspend the bucket.

30.  At trial, Mr. Khan largely attributed the discrepancies to a lack of communication.  His native language is Punjabi.  He speaks some Cantonese and English, but is far from articulate in those languages.  He claimed that much of what he wanted to say must have been lost in translation, especially since on occasion only Urdu interpreters were available to translate his statements and he did not always understand what was being said to him in Urdu.

31.  I can accept that interpretation may account for minor differences in Mr. Khan's accounts (such as which foot (left or right) was on the middle rung and which on top of the stool just before the accident).  But I do not think that the language barrier alone can explain the significant differences between the 2002, 2003 and 2006 versions of events.  This must especially be the case since (as Mr. Kerr pointed out to Mr. Khan in cross-examination) the November 2002 and November 2003 accounts and Mr. Khan's witness statement were all interpreted by Mr. Khan's friend, Mr. Mohammad Shaukat, a Punjabi speaker.

32.  I should therefore approach Mr. Khan's accounts with caution.  But this does not mean I should ignore them altogether.

33.  It will be noticed that Mr. Khan's more recent accounts have become more embellished.  This is contrary to what one might expect.  The more time elapsing since an accident, the more likely that one's memory of the precise course of events will have dimmed. 

34.  However, there is also a converse phenomenon.  With the passing of years, a victim (especially one engaged in litigation over his accident) may naturally, perhaps sub-consciously, colour his recollection in a way which might favour prospects at trial.

35.  In my judgment, Mr. Khan's earlier statements of November and December 2002, made relatively soon after the accident, are a more reliable guide to what actually happened.  I am inclined to place significant weight on these 2 early statements because they apparently contain remarks which are against Mr. Khan's interest. I am thinking, for instance, of the acknowledgment by Mr. Khan in December 2002 that, despite the stool legs being of different length, “the difference was very minor” and, at least with him standing on the stool top with both feet, “would not cause my falling on the ground”.

36.  What then happened on 7 July 2002?

37.  In all likelihood, Mr. Khan placed his bucket at a point about 1.3 m (4 feet) above the floor of the unit in which he was working.  He suspended the bucket over a pin wedged into a hole in a wall panel.  There were other wall panel holes higher up that Mr. Khan could have used.  But he chose to hang his bucket at a low level. 

38.  I reject Mr. Khan's more recent evidence that he used a protruding tie bar to hang the bucket.  This is inconsistent with the 2002 accounts and is perhaps a false memory that has developed over the intervening years between accident and trial. 

39.  Mr. Khan then positioned his stool nearby and stood on the top of the stool.  He started to work on the soffit length.

40.  The stool wobbled.  Its legs were uneven or, at any rate, one leg was short by some 5 mm.  But, so long as Mr. Khan stood with both feet on top of the stool, he could maintain his balance without difficulty.

41.  Unfortunately, the position of the bucket was such that from time to time Mr. Khan had to descend and ascend the stool by one rung to reach a pin or wedge from the bucket.  It is immaterial whether Mr. Khan descended or ascended with his left or right foot.  The point is that, in so moving up and down, the stool would wobble.  Mr. Khan's weight no longer bearing down and stabilising the stool from the centre of its top platform, there was an increased risk that Mr. Khan would lose his balance.

42.  At some stage, about half an hour after he started work, Mr. Khan lost his balance.  This was because the stool wobbled as he was going up from the middle rung to the top platform.  Given that Mr. Khan was holding a hammer in one hand and a pin or wedge in the other, it was difficult for Mr. Khan to regain his balance or arrest his fall.  Mr. Khan thus fell on his left elbow and back.

43.  To this reconstruction of what happened, I would make 3 observations.

44.  First, Mr. Kerr queried whether Mr. Khan could first fall to the ground on his left elbow and then roll against the wall panel with his back.  But there is no expert evidence to the effect that Mr. Khan's account of hitting his left elbow and back is a physical impossibility.   Given that no one disputes that on 7 July 2002 an accident of some sort happened and that on the same day Mr. Khan showed signs of injury to his left elbow and back, I think the natural conclusion is that Mr. Khan hurt his left elbow and back as a result of the accident which I have just described.

45.  Second, on a superficial reading of the November and December 2002 statements, one might think that Mr. Khan himself dismissed the possibility of the stool's instability being the cause of his fall.  But, carefully read, it will be seen that the December 2002 account was simply stating that the stool was fine, so long as one stood at the top with both legs.  I therefore do not think that Mr. Khan's December 2002 statement eliminates the probability that the accident happened as I have summarised.

46.  Third, Mr. Lam Siu Fung (Cheung Ying's assistant foreman) gave evidence as follows:

“After hearing of [Mr. Khan's accident] I immediately inspected all the metal stools on the site to check that they were safe.  I did not find any that was not safe.”

47.  Mr. Kerr suggests that such evidence rules out any possibility that Mr. Khan used a wobbly stool.  Mr. Lam (Mr. Kerr submits) checked all stools after the accident and found that there was no wobbly stool. 

48.  Mr. Kerr relies on the fact that in Court Mr. Lam was invited to inspect a stool similar to one that Mr. Khan used (Exhibit D2).  Mr. Lam was asked to say whether the stool was or was not defective.  Mr. Lam said that he would have rejected D2 as unsafe, because it had a bent rung and its legs were uneven. The likelihood then (Mr. Kerr argues) is that, much as Mr. Lam would have rejected D2, so he would have rejected Mr. Khan's stool as unsafe if upon inspection Mr. Khan's stool had been found to have uneven legs.

49.  I cannot accept Mr. Kerr's submission.  Mr. Lam's statement about having inspected “all the metal stools on the site” is too general and vague for me to attribute much weight to it. 

50.  By his own account, Mr. Lam did not learn of the accident until the following day.   

51.  He does not say when thereafter he inspected all metal stools.  Nor does he give any details about how he ensured that “all” metal stools were inspected.  He does not (for instance) specify what steps (if any) he took to ensure that the stool which Mr. Khan had used was among the stools inspected.

52.  By the expression “site”, Mr. Lam seems to mean the whole of the Sham Mong Road site.  I bear in mind that Cheung Ying ordered 100 stools for the site.  How long did it take for Mr. Lam to examine all the stools on site?  Precisely when did he inspect the stools used in Tower 3?  What sort of inspection (a quick glance or something longer) did he perform?

53.  I note further that there seems to be no record or inventory of Mr. Lam's inspection.

54.  Mr. Kerr says that Ms. Molloy did not challenge Mr. Lam's evidence as to having inspected the stools.  But in my view Ms. Molloy was entitled to regard Mr. Lam's bland statement as being of little probative value on its own without more.  In any event, Ms. Molloy did suggest to Mr. Lam that Mr. Khan could have used a defective stool.

55.  Consequently, I do not think that Mr. Lam's evidence militates against my conclusion as to what happened on 7 July 2002.

A.2   Whether breach of statutory or common law duties of care

A.2.1   Failure to provide safe stool for use on uneven floor

56.  Given my finding that the stool was unstable, there is at least an evidential burden on the Defendants to show that they nevertheless had in place a safe system of work.  In other words, the Defendants must show some evidence that they took all reasonable steps to ensure that such a stool would not be used by Mr. Khan.

57.  On this, the weight of evidence is against the Defendants. 

58.  Mr. Lam's evidence was that defective stools would only be replaced upon receipt of a complaint.  But by then it could well be too late.  A worker might not be able to make a complaint until after he had used an unsafe stool and risked injury. 

59.  The Defendants had to be more pro-active.  For example, there was no evidence of any regular system of inspecting the stools at (say) the end or beginning of each working day or at any interval to ensure that they remained safe for use.  It seems to me that a safe system of work would at least entail such element of regular inspection, especially given the “uneven” floor of a construction site.

60.  A system of dealing with defective stools only upon complaint would hardly prevent a worker from using an unsafe stool.  But the Defendants appear to have had no other system in place in relation to the 100 stools used on site.

61.  There was some debate among the parties as to whether the floor of the site was even or uneven.  The floor on which Mr. Khan worked was made of concrete.  The Defendants' witnesses accepted that the floor was not smooth like a mirror, but maintained that it was nevertheless flat.  I was provided with photos of the floor.

62.  I do not think that the floor can be described as even.  The concrete (as is apparent from the photos) is rough in finish. Further, just as in any construction site, the floor at the time of the accident would inevitably be littered with at least some debris.  It is perfectly likely that there would be uneven random patches throughout the work floor. These patches would exaggerate the wobble of a defective stool and thus render unsafe even a stool with only one leg shorter than the rest by 5 mm.

63.  There being a lack of an adequate regular inspection system for stools, I am not satisfied that the Defendants did all that was reasonably practical to prevent workers from using wobbly stools.

64.  Mr. Kerr argued that the stools were brand new.  The accident having happened in July, just under 2 months after Cheung Ying entered the work site, the probability (Mr. Kerr suggests) is that the stools were still in pristine condition on 7 July 2002.

65.  I cannot accept this argument.  It only takes one rogue stool to lead to an accident.  Even within a relatively short period of time, stools subjected to frequent or heavy use in the course of several days, may exhibit faults or defects.  I do not think anything can be deduced from the time between May and July 2002 as to the likely condition of the stools at Tower 3.

66.  On this ground of complaint, I would find that the Defendants have breached their respective common law and statutory duties of care.

A.2.2   Failure to provide tool belt

67.  Ms. Molloy argues that, if a tool belt had been provided, Mr. Khan could have suspended his hammer on the tool belt and thus freed his right hand.  Mr. Khan would then at least have one hand to steady himself when ascending or descending the rungs of the stool.

68.  To make good this head of claim, Ms. Molloy accepted that she must at least show causation.  Whether or not it was reasonably practical to provide a tool belt, I am not satisfied that its absence was causative of Mr. Khan's injury.

69.  It seems to me that, if the stool had been more stable, it may well have been feasible for Mr. Khan to move up and down without unduly risking a fall.  I am not convinced on the evidence that, even with the right hand free and the left hand holding a pin or wedge, Mr. Khan would have been able to arrest his fall from the unbalanced stool and prevented injury.

A.2.3   Failure to provide a retractable table

70.  The table (according to Ms. Molloy) would hold the bucket at a convenient height so that Mr. Khan would not have to move up and down the stool.

71.  I am not satisfied that it was reasonably practical to provide such a table.  Here I accept the evidence of the foreman (Mr. Cheung Chi Keung of Cheung Ying) that within the narrow confines of the alcoves in the flat units of Tower 3 such a table would be inconvenient.  This is because the table might simply not fit in the available space.

72.  Given that even on Mr Khan's own evidence he was working in an alcove at the time of his accident, I reject this ground of complaint.

A.2.4  Failure to provide training

73.  Ms. Molloy says that the Defendants failed to train Mr. Khan as to the best practice for installing soffit length at the project site.  Every site (Ms. Molly argues) is different, so that the Defendants could not simply assume that (because Mr. Khan had prior experience) he would know how best to proceed at Tower 3.

74.  Had there been proper training, Mr. Khan (Ms. Molloy submits) would have used best practice and would not have placed his bucket at a position which necessitated moving up and down the stool.

75.  Mr. Cheung Tat Fai, a director of Cheung Ying, said that:

“Workers working at the Site were provided with both induction training and toolbox training by [Hyundai].”

76.  But (Ms. Molloy points out) Mr. Cheung Tat Fai could not describe the sort of training received.  He had no personal knowledge of what was involved (for example) by way of “induction” training.

77.  Here I accept Mr. Kerr's submission that the work which Mr. Khan had to do on 7 July 2002 was not complex.  It was not any more hazardous than other routine jobs to be conducted on site.  Since Mr. Khan claimed to have 3 years' experience in steel frame installation, it is hard to see what further training in the installation of soffit length was called for. 

78.  In my view, the Defendants were entitled to rely on Mr. Khan's claimed expertise.  They were entitled to consider that he knew what he was doing and would exercise a degree of competence commensurate with his experience.

79.  I accordingly reject this ground of complaint.

A.2.5   Failure to supervise or inspect workers

80.  Ms. Molloy complains that there was not enough supervision or inspection of workers.  Had there been proper supervision, someone on routine inspection would have spotted the fact that Mr. Khan was not using best practice.  That person could then have stopped Mr. Khan and insisted that he position his bucket at a higher level.  That (Ms. Molloy suggests) might have prevented the accident.

81.  The evidence was that at least once a day Mr. Lam would go around the site looking at how workers were carrying on their jobs.  Mr. Cheung the foreman would make spot checks from time to time.

82.  As we have seen, however, according to Mr. Khan, “Lo Sai” (whoever he might have been) inspected how work was proceeding 5 or 6 times a day.

83.  In my view, given that the attachment of soffit length is neither complex nor especially dangerous, the degree of supervision or inspection was adequate and reasonable.

84.  I note that the accident happened within about a half hour of Mr. Khan starting work.  Ms. Molly suggested that half-hourly or hourly rounds by an inspector or supervisor were needed.  But I think such a requirement would be excessive and impractical.

A.2.6   Failure to provide a co-worker

85.  I do not think that it would be reasonable to expect the Defendants to provide a co-worker.  The evidence (especially of Mr. Cheung the foreman) indicates that the work which Mr. Khan was doing could safely be performed by one person.

A.2.7   Conclusion on negligence

86.  The Defendants breached their statutory and common law duties of care.  They failed to ensure that an adequate system was in place to prevent defective stools from being used on the uneven floor of the site.  That failure directly led to Mr. Khan using a wobbly stool.  The stool's lack of stability then caused Mr. Khan's fall.

A.3   Whether contributory negligence

87.  Mr. Kerr urges me to find that Mr. Khan was substantially the cause of his own injury.  Had he followed best practice in the positioning of the bucket, then (Mr. Kerr submits) he would not have had to move up and down the stool and so increase the risk of falling off the stool.

88.  I am not persuaded by Mr. Kerr's submission.  I am not satisfied that it was Mr. Khan's positioning of the bucket that was the effective cause of his injury. 

89.  In my view, had the stool been stable, Mr. Khan should have been able to mount and dismount as he did without incident. The real problem was not the bucket's placing, but the fact that the stool was wobbly.  Any shifting of weight by the person standing on top of the stool would then pose a risk of falling.

90.  In those circumstances, I cannot conclude that Mr. Khan's placement of the bucket contributed significantly (or at all) to his fall.

91.  I therefore reject the submission of contributory negligence.

A.4   Conclusion on liability

92.  The Defendants are liable to Mr. Khan for breach of their duties of care at common law and under statute.  Mr. Khan was not contributorily negligent.

B.   Quantum

B.1   General matters

93.  Mr. Khan was born on 11 December 1979.  At the time of the accident, he was earning an average of about $13,000 per month.

94.  The agreed medical report of Dr. Patrick Wong Kwok Shing dated 22 December 2004 2003 concludes as follows in relation to Mr. Khan's condition:

“7.     Assessment of Permanent Impairment:  According to American Medical Association's Guides to the Evaluation of Permanent Impairment (5th ed), there is no objective sign detected for any ratable impairment of elbow and lumbar spine, I will estimate 2% whole person impairment for his left elbow residual pain and 3% whole person impairment for his low back residual pain.  Therefore, he has a total of 5% whole person impairment as a result of the injuries he sustained during the captioned incident.

8.      Evaluation of Loss of Earning Capacity (LOEC): Referring to the Hong Kong Employees Compensation Ordinance CAP 282 (1st schedule), there is no specific percentages assigned to the type of injuries sustained by Mr. Khan.  Considering that his injuries contribute 5% whole person impairment for daily activities and he performed mainly heavy manual work before, I will estimate the work accident contributes 8% LOEC.

9.      Return to work:  Mr. Khan should be able to return to his pre-accident job as a construction site worker but with reduction in efficiency at work.  Alternatively, he may elect to work on other light to moderate manual work such as security guard, car park attendant or machine operator.”

B.2   Special damages

95.  These are agreed at $5,536.

B.3   Loss of earnings

96.  The parties agree $195,000 for sick leave.

97.  Mr. Khan additionally claims $63,950 in respect of time spent looking for employment following his accident.  The Defendants say that $39,000 is adequate.  The former figure represents 5 months of looking for a job (less $1,050 earned on odd jobs), while the latter represents 3 months.

98.  Mr. Khan's unchallenged evidence is that he tried hard to find new employment after his accident.  He contacted several friends and went to many sites to try to secure light construction-related work.  But he was unable to do so.  According to him, “[n]obody wanted to employ [him] when they knew [he] had an accident and could only do lighter work”.

99.  In the circumstances, I do not think that it is unreasonable to compensate Mr. Khan for 5 months' search for alternative employment.  I would award $63,950.

100.  On 17 March 2004 Mr. Khan found work as a security guard for Yeoman Guards Co. Ltd.  He was then paid $5,000 per month.  He remained on the job until 30 May 2004.  He visited Pakistan (from where he comes) for about 6-7 weeks.  He returned to Hong Kong in late July 2004 and resumed work with Yeoman until 17 February 2005.  He was back in Pakistan between late February and 24 June 2005.  This was apparently to sort out family affairs die to his wife's illness.  He went back to working for Yeoman on 4 July 2005 when his salary was increased to $5,800 per month.  At trial Mr. Khan said he was still working for Yeoman.

101.  Mr. Khan thus claims the difference between his previous monthly earning of $13,000 and his salary at Yeoman for the period from 17 March 2004 to trial.

102.  The Defendants say that, since (according to Dr. Wong) Mr. Khan is able to resume his previous work, Mr. Khan is not entitled to any compensation for lost earnings from mid-March 2004.  In any event, Mr. Khan's time in Pakistan should be excluded from any pre-trial compensation because Mr. Khan would not have earned anything while away from Hong Kong.

103.  Although Dr. Wong says that Mr. Khan may return to his pre-accident occupation.  Dr. Wong accepts that there is likely to be a reduction in Mr. Khan's efficiency.  Accordingly, especially in times of a weak or competitive construction market, the reality is that Mr. Khan will experience difficulty in finding work.  Companies will prefer to hire the more able-bodied before considering someone with reduced efficiency.  Dr. Wong's reference to Mr. Khan electing to work as a security guard strikes me as tacit acknowledgement of this reality.

104.  Consequently, I do not think that Mr. Khan should be penalised by a nil allowance for lost earnings, merely because of a theoretical possibility that he could return to his previous line of work.  I think that it is reasonable and just to award damages for lost earnings from mid-March 2004.

105.  I agree, however, that Mr. Khan's period in Pakistan should be excluded from the calculation for the reason given by the Defendants.

106.  This means that pre-trial lost earnings should be assessed at $140,800, calculated as follows:

(1)     From 17 March 2004 to 30 May 2004: ($13,000 - $5,000) x 2.5 months = $20,000.

(2)     From late July 2004 to 17 February 2005: ($13,000 - $5,000) x 7 months = $56,000.

(3)     From 4 July 2005 to present (March 2006) = ($13,000 - $5,800) x 9 months = $64,800.

B.4   Future loss of earnings

107.  Mr. Khan asks for $1,382,400.  This is calculated as follows: ($13,000 - $5,800) x 12 months x 16 years (multiplier). Ms. Molloy accepts that a multiplier of 15 years may be appropriate.

108.  The Defendants say that future loss of earnings should be nil because Mr. Khan can resume his previous work.  For the reasons explained above, I disagree with this submission.

109.  Mr. Kerr says that there is no evidence of Mr. Khan earning an average of $13,000 per month before his accident.  However, as Ms. Molloy notes, according to Cheung Ying itself, Mr. Khan stood to earn some $15,000 per month while working for Cheung Ying.  This is apparent from the form filled out by Cheung Ying in connection with the employees compensation claim brought by Mr. Khan.

110.  Mr. Kerr also submits that, if Mr. Khan has been left impaired by the accident, it is because Mr. Khan repeatedly failed to attend scheduled therapy sessions.  Mr. Khan made no real effort (Mr. Kerr says) to mitigate his loss and improve his physical condition.

111.  I am not satisfied on the medical evidence that this is the case.  There is nothing (for instance) in Dr. Wong's report to suggest that Mr. Khan's failure to attend therapy (as opposed to the accident itself) is the reason for his present impairment.

112.  I therefore think that it is right to evaluate Mr. Khan's future loss of earnings by reference to an average earning of $13,000.

113.  Because the assessment of future loss of earnings is at best rough and ready calculation, I think it would be appropriate to use rounded figures.  I would round up Mr. Khan's present salary of $5,800 to $6,000 and assess his future loss of earnings at ($13,000 - $6,000) x 12 months x 15 years.  This yields a figure of $1,260,000.

B.5   Loss of provident fund

114.  It follows from the foregoing that this head of damage would be as follows:

(1)     Pre-trial: $399,750 x 5% = $19,987.50

(2)     Post trial: $1,260,000 x 5% = $63,000.00

B.6   Loss of earning capacity

115.  Mr. Khan's Revised Statement of Damages asks for $180,400. The Defendants' Answer proposes $156,600.  Ms. Molloy in submission suggested $234,000.

116.  Here it seems to me that the Defendants' figure is probably the more appropriate.  That is based on $870 per month (equivalent to 2 working days' rest per month) x 12 months x 15 years.

B.7   PSLA

117.  Mr. Khan's Revised Statement of Damages proposes $300,000. The Defendants Answer suggests $200,000.  Mr. Kerr, however, submits that I should consider an award as low as $50,000.

118.  In my view, the damage here is at the lower end of the serious injury category.  I believe $200,000 would be reasonable.

B.8   Miscellaneous matters

119.  Credit must be given for $304,928 paid to Mr. Khan under the Employees Compensation Ordinance (Cap. 282).

120.  Interest is to accrue on the award for PSLA at 2% from the date of writ to date of judgment.  Interest will accrue on special damages at half the judgment rate from the date of accident to date of judgment.

B.9   Summary of quantum

121.  The Defendants are liable to pay the following damages to Mr. Khan:

1.	Special damages	$5,536.00
2.	Loss of earnings	$399,750.00
3.	Future loss of earnings	$1,260,000.00
4.	Loss of provident fund	$82,987.50
5.	Loss of earning capacity	$156,600.00
6.	PSLA	200,000.00
	Sub-total	$2,104,873.50
	Less: Employment Compensation	($304,928.00)
	TOTAL	$1,799,945.50 ==========

IV.   Conclusion

122.  There will be judgment in favour of Mr. Khan against Cheung Ying and Hyundai, jointly and severally, for the sum of $1,799,945.50.  Interest will run on particular amounts as stated in Section III.B.8 of this Judgment.  Interest will run on the final judgment sum from today's date until payment at the judgment rate.

123.  There will be an order nisi that Cheung Ying and Hyundai pay Mr. Khan's costs, such costs to be taxed if not agreed.  Mr. Khan's own costs are to be taxed in accordance with Legal Aid Regulations.