LAU CHIU WAH v. KWONG KEY CONSTRUCTION AND ENGINEERING LTD. AND OTHERS

HCPI 581/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 581 OF 1998

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J U D G M E N T

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1. The plaintiff brings this claim for damages for personal injuries as a result of a fall sustained by him while working at a construction site known as CDW Building Redevelopment Project in Tsuen Wan ("the site") on 6 July 1995. The plaintiff's claim is brought against the 1st, 2nd and 3rd defendants being the subcontractor, the main contractor and the sub-subcontractor respectively at the site on the basis of negligence, breach of common duty of care as occupier of the site and breach of contract.

2. The plaintiff's case is that on the day in question, he was employed as a stone-cutter in hand-dug caisson by one or all of the defendants. He was required by his foreman to drill into certain parts of the caisson wall with a pneumatic drill for the purpose of removing protruding rocks from that part of the caisson wall. In order to reach that part of the caisson wall to be drilled, the plaintiff had to stand on top of a metal bucket filled with rocks. There was no guard rail on the metal bucket which was provided by the foreman. When the pneumatic drill slipped while the plaintiff was drilling, it caused the plaintiff to lose his balance standing on top of the metal bucket filled with rocks, and resulted in the plaintiff falling from the top of the metal bucket onto the bottom of the caisson about one metre below, landing on his buttocks and thereby causing injury to his back.

3. The defendants admit that an accident had occurred on the day in question causing injury to the plaintiff but that accident was only reported to the defendants a few days after its occurrence. The details of that accident as alleged by the plaintiff are not admitted by the defendants. The extent of the plaintiff's injuries are also not admitted. Moreover, the defence denies negligence on the part of any of the defendants. It is also alleged that the accident came about as a result of the plaintiff's own negligence, in that he had chosen a dangerous method of standing on loose sand and stone in order to reach the height whereby he had to drill, thereby failing to take proper care of his own personal safety.

The plaintiff's evidence

4. The plaintiff gave evidence that he has been an experienced caisson worker for some 15 years since 1976. At the site, he was employed as a caisson worker but more particularly, as a stone-cutter to cut stones by using pneumatic drills inside caissons. He had started working on this caisson in which the accident happened about 10 days before the accident. Before he started work on this caisson, general labourers had already dug into the top soil of this caisson for about seven metres. His work only began at this caisson when the rock level was reached by the general labourers digging into the top soil.

5. The plaintiff gave evidence that when he first started work at that caisson, he had been chasing the foreman whom he knew only by the nickname of Dah Pow Lone (now known as Kwok Siu Lung, DW3) to get the levelling workers to mark the centre point of the caisson. According to the plaintiff, the marking of the centre point of the caisson is important, in that, without the centre point being accurately marked, the full extent of the circumference of the caisson cannot be made out. Thus if a caisson is dug without the centre point being marked at different levels as the caisson is dug, the circumference of the caisson can only be guess work or a rough estimate, thus resulting in remedial work having to be done later to rectify any significant deviations.

6. According to the plaintiff, it was only on the day before the accident, i.e. 5 July 1995, after he returned from lunch that he was told by his foreman that the centre point of the caisson had been marked with red paint. He was also told by the foreman that the levelling team had also sprayed red paint marking certain areas of the caisson wall where remedial work had to be carried out, and that the plaintiff had to drill those parts of the caisson wall marked with red paint for a further 10 centimetres deep by way of remedial works. The area of the red paint on the caisson wall was about two metres from the bottom of the caisson and covered an area on the wall about two metres in width and height. He carried out this remedial work on the afternoon of 5 July and the morning of 6 July 1995.

7. The plaintiff also gave evidence that for the purpose of removing rocks and stones, cut or drilled from this caisson, two metal buckets would alternately be lowered into this caisson from the opening on top. These buckets also served as the means by which caisson workers were lowered into the caisson to carry out work. The metal buckets were each about one metre high and about 80 centimetres in diameter. When filled with rocks and stones from the bottom of the caisson, they would be pulled up to the top for disposal. The system is such that when one bucket is up on the top of the caisson, the other bucket is down at the bottom.

8. The plaintiff met with this accident at about 10:00 am on 6 July 1995. In order to reach that part of the caisson wall marked with red paint where the plaintiff had to drill, the plaintiff stood on one of these metal buckets filled with rocks, the metal bucket having been pushed close to the caisson wall. One foot of the plaintiff stood on this bucket near to the edge or rim of the bucket while the other foot of the plaintiff rested on top of a protruding rock, protruding from the caisson wall. In this position, the plaintiff used a pneumatic drill which weighed about 80 pounds and which was totally about three feet in length. The plaintiff described the accident as having occurred when the point chip of his pneumatic drill slipped while he was drilling on the caisson wall. As a result of the point chip slipping while he was drilling, the plaintiff lost his footing, and presumably his balance, and fell from the top of the metal bucket onto the bottom of the caisson thereby sustaining injuries to his back.

9. The plaintiff also gave evidence that for every metre or thereabout of the caisson dug, a cement lining should be made to the caisson wall. This is to prevent slippage of soil, mud or loose rocks and is intended for the safety of workers working inside the caisson. However, according to the plaintiff, when he started work on this caisson and up to the time of the accident, only the top five metres of the caisson had such cement lining. At the time he started work on this caisson, some 10 days before the accident, the caisson had been dug to a depth of about seven metres, thereby leaving the bottom two metres without any cement lining. At the time of the accident, a further two metres of the caisson had been dug, thereby leaving some four metres of the caisson without the cement lining.

10. The main complaint of the plaintiff is that the metal bucket, even when filled with rocks, was not a proper piece of equipment for the purpose of the plaintiff reaching that part of the caisson wall where he had to drill. If he had been provided with the proper kind of platform, then he would not have lost his balance and fallen even if the point chip of his drill had slipped off the wall while he was drilling.

The defence evidence

11. Evidence was called by the defence from three defence witnesses. They were, firstly, Chow Chi Ming, the project manager employed by the 2nd defendant in relation to the site (DW1); secondly, Tam Yiu Keung, the proprietor of the 3rd defendant (DW2); and thirdly, Kwok Siu Lung, the foreman of the 3rd defendant on the site (DW3). All three defence witnesses acknowledged that they did not witness how the accident to the plaintiff occurred. That, however, did not stop them from giving evidence which effectively disputed the way in which the plaintiff says this accident occurred. I shall deal with each of their evidence in turn.

12. Chow Chi Ming is the project manager employed by the 2nd defendant, and at the material time of this accident, he was full time on site. He acknowledged that he had no personal knowledge of this accident to the plaintiff nor had he even attended the caisson where this accident occurred. Indeed, he accepted that he was not even aware of this case brought by the plaintiff until November 1999 when he was given instructions to locate certain documents, the subject matter of a discovery application by the plaintiff before trial. It was only then that he came to know of this case.

13. Mr Chow gave general evidence that the excavation of caisson is carried out layer by layer, each layer being between 900 millimeters to one meter deep. Although he has not seen the caisson where this accident occurred, based on this, he gave evidence that if the plaintiff had been requested to drill into the caisson wall because of protruding rocks, the part that the plaintiff was requested to drill would more likely to have been between 900 millimeters to one meter above the bottom of the caisson. He also gave evidence that if the hole-drilling method had been properly adopted by the plaintiff, then there should have been no necessity for any of the defendants to have requested the plaintiff to drill into a protruding rock along the caisson wall.

14. Furthermore, Mr Chow says that it would have been quite impossible for the plaintiff to have been standing on top of the metal bucket and holding the pneumatic drill which is quite heavy to drill on a spot of the caisson wall which was about two metres above the bottom of the caisson as he does not believe that the plaintiff could have lifted up the drill over his shoulders to such a height to carry out the drilling works.

15. Mr Chow, when he came into the witness stand, supplemented his evidence contained in his witness statement by saying that a cement lining to the caisson wall is constructed after each layer excavated, and that cement lining is checked by the consultancy firm of Scott Wilson (HK) Limited. He also gave evidence that the cement lining is only required up to the rock level. When the rock level is reached and the rock is strong enough, a caisson lining will not be constructed. He also gave evidence that in respect of this caisson, there was no rush for the work to be constructed in July 1995. The reason given by him was that, by that time, more than 90% of the caisson work had already been completed and since the urgent work had already been completed, there was no need for further rush.

16. Under cross-examination, Mr Chow conceded that there was no site safety officer appointed in respect of this site, but that all the site agents and site supervisors, as well as the foremen on site were all responsible for seeing to the safety of workmen on site. It was also made apparent that Mr Chow had no personal knowledge even as to which caisson it was that this accident occurred but that he was told this by others. Nor did he have any knowledge as to this accident taking place despite the fact that a standard From 2 relating to the plaintiff's accident had been filled in by someone at the head office of the 2nd defendant and submitted to the Labour Department. According to him, he only became aware of this case in November 1999 when he was asked to locate documents as a result of a court order for discovery against the 2nd defendant. The explanation given by Mr Chow was that although he was the project manager on site, he did not concern himself with every accident on site which was reported to the Labour Department but only those that were considered serious would be discussed at project meetings. What is considered to be a serious accident are those accidents where the injured person is not in a position to go by himself to seek medical treatment as, for instance, where he becomes unconscious or where the injured person has to be carried off to hospital by an ambulance.

17. Mr Chow was aware of the government ban on hand-dug caisson which came into effect by the Buildings Amendments Ordinance in January 1995 but which gave a grace period of 12 months for construction sites employing such caissons at the time the Ordinance came into effect. He said this would have been circulated and he would have seen it at the time. However, despite the fact that this accident took place inside one such caisson, it would have been followed up by the managers of the insurance department, and this accident was not reported to him.

18. The 2nd defence witness, Tam Yiu Keung, is the sole proprietor of the 3rd defendant. His evidence was that the plaintiff was his direct employee and was employed as a stone-cutter working in caissons. Again, he also acknowledged that he did not witness the accident but that the plaintiff handed to him a sick leave certificate one or two days after the accident. He gave evidence that when the plaintiff together with his co-worker, named Lee Ah Yau, recounted the accident to him shortly after the accident, the plaintiff said to him that the plaintiff had stood on some loose stones and sand so as to gain height to cut stones by the wall of the caisson. This was something that the plaintiff was not supposed to do and had been told by him not to do so before. The reason was that the plaintiff was supplied with the metal bucket to step on when he needed to reach height to cut stones by the caisson wall. It is also clear from his evidence that this metal bucket is the same one used for lifting the workers down into the caisson and up from it as well as used for transporting the loose sand and stones, generated in the course of drilling, away from the caisson. Mr Tam's evidence was that if the metal bucket was filled up with sand and stones, it could provide a steady and stable flooring for the workers to step on and work when they needed to reach for height. He gave the diameter of this tank or bucket to be about three feet.

19. Moreover, Mr Tam's evidence was to the effect that if the plaintiff had used this bucket, the plaintiff failed to use it in a proper way, in that the plaintiff had one foot on the bucket and another foot resting on a rock protruding from the caisson wall. Mr Tam points to a statement given by the plaintiff to loss adjusters, McLarens, on 17 July 1996 in which the plaintiff stated that with his two feet in the positions as described above, the plaintiff lost his balance and fell when the protruding rock from the caisson wall came loose. Mr Tam also stated that the slipping of the pneumatic drill was totally new to him and he was only aware of that during these proceedings, something which was not stated by the plaintiff in his statement of 19 July 1996 to McLarens.

20. Another aspect covered by Mr Tam in his evidence was that the plaintiff had failed to follow the instructions given by him and also by his foreman that only the proper method (the hole-drilling method) should be used in the excavation of the caisson. This method involved the drilling of holes all along the circumference of the caisson. Had this method been used by the plaintiff, it would have created a very smooth caisson wall without any protruding rocks or stones so that there would be no necessity to further drill the caisson wall to cut out such protruding rocks or stones. According to Mr Tam, the plaintiff, instead of following this procedure, although an experienced stone-cutter, had chosen his own method by breaking the rocks and stones on the surface of the bottom of the caisson with heavy equipments and breakers in excavating the caisson and thereby leaving much uneven surface on the wall of the caisson. Time and again, Mr Tam together with his foreman had asked the plaintiff to use the proper method of excavation but the plaintiff had refused to follow those instructions. The reason given by Mr Tam as to why the plaintiff preferred to use the improper method was because that method saved energy for the plaintiff. According to Mr Tam, in the present case, it was because the plaintiff had chosen to use the improper method of excavation which resulted in the fact that there were uneven surface created on the caisson wall with protruding rocks and stones, thus necessitating the plaintiff to further drill and cut away the protruding rocks and stones.

21. Lastly, he gave evidence that after the accident, he had checked the caisson in which this accident occurred and found that the protruding rocks and stones which the plaintiff had to drill off was less than one metre from the bottom of the caisson. As such, says Mr Tam, it was not necessary for the plaintiff to stand on or use the metal bucket to do this work, and that the metal bucket should only be used by workers to stand on if the protruding rocks, which were to be drilled off, were really high up on the caisson wall.

22. When Mr Tam came into the witness box, he supplemented the evidence contained in his witness statement. He agreed that the plaintiff started work on this caisson after other caisson workers had dug a depth of seven metres when the rock level was reached. He disagreed with the plaintiff that the centre point inside the caisson was not marked. He said that after each layer of the caisson was excavated, the centre point inside the caisson would be marked fresh. This would be done by using a piece of string attached to a metal weight which, when lowered into the caisson, would pinpoint accurately the centre point on the bottom of the caisson. Since the metal weight tied to the piece of string would ensure a vertical line from the centre point at the top opening of the caisson straight down to the bottom of the caisson. Workers on the bottom of the caisson would then mark that centre point with red paint. He also gave evidence that on occasions, when he passed by the caisson and looked down from the top, he saw the plaintiff and his co-worker working inside the caisson but not excavating in accordance with the marked centre point. He then shouted down to them that they should excavate by using the hole cutting method and both of them replied "Alright". He then left the caisson.

23. Mr Tam also gave evidence that it was not possible for the plaintiff to do what the plaintiff said he did, namely, standing on top of the metal bucket holding a pneumatic drill which weighs about 80 pounds and which he has to hold up and drill into the wall of the caisson.

24. Mr Tam also admitted to having signed Exhibit P2, a letter to the Social Welfare Department dated 12 August 1997, in which he certified that the plaintiff had worked 26 days a month and was paid a monthly salary of $26,000. However, despite what was contained in that letter certified by him, his evidence was that the plaintiff in fact worked on an average of only 20 days a month. His evidence was that this form was brought to him by the plaintiff who told him that the Social Welfare Department required Mr Tam to certify the plaintiff's monthly salary. He then asked the plaintiff if writing it in the way that it was written will satisfy the Social Welfare Department and the plaintiff said "Yes", therefore he wrote what was contained in that letter.

25. Under cross-examination, Mr Tam admitted that he had deliberately made a false entry in Exhibit P2 despite the fact that he knew that there was a warning contained in that form - warning of the commission of an offence if a false entry was made. He further admitted that it was his own decision to fill in that form wrongly because he knew that by so doing, he would assist the plaintiff. He also admitted that when he filled in the letter to the Social Welfare Department, he had not checked his tax records or any other records kept by him as to the plaintiff's salary but that he had simply filled in the figure of $26,000 as the monthly salary for the plaintiff.

26. Mr Tam also said in cross-examination that he was not on site on 6 July 1995 but that he came to the site on 7 July and did not see the plaintiff there. However, he did not enquire from the plaintiff's co-worker at the caisson where the plaintiff was but simply assumed that the plaintiff had not turned up for work since they were paid on a daily basis. On 8 July, after the plaintiff had handed him the sick leave certificate, he then came to know of the accident and he took the plaintiff to see a Mr Fu of the 1st defendant, and left all the formalities of reporting the accident to Mr Fu. He also said that the Form 2 submitted to the Labour Department in respect of this accident was not filled up by him.

27. When asked by defence counsel when he had spoken with the plaintiff, Mr Tam said that two days after the plaintiff had commenced work, he had spoken to the plaintiff telling the plaintiff what he should do and apart from that occasion, although he had returned regularly to inspect the caisson works, he did not speak to the plaintiff again.

28. Lastly, Mr Tam agreed with defence counsel that standing on a bucket or metal tank filled with rocks to drill with a pneumatic drill is a dangerous thing.

29. The 3rd witness called by the defence is Kwok Siu Lung, the foreman of the 3rd defendant and the person directly responsible for supervising the plaintiff in his work at the material time. Once again, his evidence came in the form of a witness statement. The content of that witness statement is so similar to that given by the previous witness, Tam Yiu Keung, it would not be necessary for me to repeat those contents here.

30. When Mr Kwok took the witness stand, he gave the following further evidence. He disagreed that the plaintiff had carried out his work for some 10 odd days at the caisson without the centre point being marked. He also disagreed that during that time the plaintiff had chased after him to have the centre point marked.

31. In cross-examination, Mr Kwok agreed that the metal bucket was to serve as a lift to transport workers as well as rocks and stones up and down the caisson well. He also agreed that the bucket was not meant for people to stand on to work. Although he did say that the bucket could serve as a safe platform when filled with rocks and stones, he also agreed with defence counsel that it would be dangerous to stand on this bucket using a pneumatic drill to drill.

32. He agreed that it was only in 1999 that he was asked for the first time to recall matters which happened in July 1995 in relation to the plaintiff's accident. He said that on 6 July 1995 at about lunch time, he had found the plaintiff missing from the caisson where the plaintiff was supposed to be working. However, he did not ask the plaintiff's co-worker because the co-worker was working down inside the caisson. He only asked the female worker who was working on ground level by the side of the caisson, but she said she did not know where the plaintiff had gone. It was only on the next day that he was able to ask the plaintiff's co-worker. The plaintiff's co-worker replied to him saying that the plaintiff would not come back to work as he had twisted his back. At the time he thought this was an excuse by the plaintiff to quit working at the site. It was only on 8 July when the plaintiff returned to the site and handed in his sick leave certificate that Mr Kwok came to know that the plaintiff had in fact injured his back. He said the plaintiff did not hand in the sick leave certificate to him, and thereafter nobody from the 1st or the 2nd defendant had asked him anything concerning the accident to the plaintiff but that he had only talked with his boss, Tam Yiu Keung, about this matter.

Findings of fact

33. Of all the witnesses called to give evidence in this case, the plaintiff was the only one who was in the position to give direct evidence as to how the accident occurred. Although a person of little education, the plaintiff gave his evidence in a straightforward and truthful manner. The answers given by the plaintiff in cross-examination had a ring of truth about it. In one particular exchange between the plaintiff and counsel for the defendants, counsel for the defendants suggested to the plaintiff that the protruding rock which had to be drilled from the caisson wall was less than one metre from the bottom of the caisson, the plaintiff answered that if the protruding rock was less than one metre high, there would have been no need to stand on the metal bucket. When counsel for the defence then persisted by suggesting that if the protruding rock was one metre high, the plaintiff could still have stood on the metal bucket for the purpose of drilling, the plaintiff then answered this question by saying "Would somebody be so stupid to stand on the tank and have to bend his body instead of standing straight".

34. The one part of the plaintiff's evidence where an apparent discrepancy appears is that in his statement given to McLarens on 17 July 1996, the plaintiff had said that he lost his balance when the protruding rock from the caisson wall, on which one of his feet was resting, came loose. However, in his evidence, he said that he had lost his balance when the point chip of the drill slipped while he was drilling.

35. Subject to this apparent discrepancy which I shall deal with later in this judgment, I have no hesitation in accepting the plaintiff's evidence in all other respects.

36. On the other hand, all three witnesses called by the defendants did not impress me as reliable witnesses. Chow Chi Ming, the project manager on site, of his own admission, had no knowledge of this accident until November 1999. He had no knowledge as to which caisson it was that the accident happened nor did he inspect that caisson himself, yet he tried to give evidence as to the situation with that caisson in an attempt to pluck up the evidence of the other two witnesses called by the defence. That evidence of his could only have been hearsay and, as such, worthless. The sum total of his evidence left me with the distinct impression that workers' safety did not rank in a high priority at the site.

37. As for the sole proprietor of the 3rd defendant, Tam Yiu Keung, his credibility as a witness was seriously dented when he admitted to having deliberately, on his own initiative, made a false statement to the Social Welfare Department in certifying the salary of the plaintiff in Exhibit P2. Moreover, there were so many inconsistencies between his witness statement (which stood as his evidence-in-chief) and the answers he gave under cross-examination that when finally, he was asked in cross-examination why there were so many mistakes in his witness statement, he was unable to give any answer at all. In the circumstances, apart from the admissions made by him, I find his evidence to be wholly unreliable.

38. Furthermore, I have serious doubts about the evidence of Mr Tam that the plaintiff had employed a method to excavate the caisson which is not the hole-drilling method that the defendants had instructed him to use. The reason given by Mr Tam was because the plaintiff's own method saved energy for the plaintiff. However on the evidence before me, this does not appear to be correct because the plaintiff would still have to carry out remedial works by drilling on the caisson wall after each layer. In fact it seems to me on the evidence such remedial works would be more troublesome if not more difficult for the plaintiff than simply drilling holes along the circumference on the floor of the caisson.

39. A further reason which causes me to disbelieve Mr Tam on this aspect of his evidence is the fact that in cross-examination, Mr Clough had got him to say that two days after the plaintiff started working at the site, he had spoken to the plaintiff telling the plaintiff what he should do, and apart from that occasion he did not speak to the plaintiff again although he had returned regularly to inspect the caisson works. In so saying, Mr Tam had clearly forgotten that in his evidence-in-chief, he had stated that he had time and again, before the accident, together with the foreman, asked the plaintiff to use the proper method of excavation but the plaintiff had refused to follow his instructions. The only reason that I could think of for Mr Tam to have forgotten what he had said in chief was because he was not telling the truth.

40. One admission made by Mr Tam which in my view strongly supports the plaintiff's evidence was that after he had learnt of the plaintiff's accident, he had inspected the caisson in question and found red paint markings on the wall of the caisson which indicated those parts of the wall that the plaintiff had to drill or cut away. These marks indicated that the earlier excavation by the plaintiff was not precise so that some more of the caisson wall had to be drilled away. If the centre point had been consistently marked on each layer of the caisson excavated, there can be no good reason why the earlier excavation by the plaintiff was such that parts of the caisson wall had to be marked out in red paint for further drilling.

41. Lastly, the foreman, Kwok Siu Lung, again did not impress me as a reliable witness. Being the foreman of the 3rd defendant, he had a purpose of his own to serve in backing up the evidence of his boss, Mr Tam. His evidence that when at about lunch time on 6 July 1995, he found the plaintiff missing from his work, he only asked the female worker working by the side of the caisson and when she replied to him that she did not know where the plaintiff was he made no further enquiries, is wholly unconvincing. Similarly, his evidence that on the next day, he asked the plaintiff's co-worker and was only told by the co-worker that the plaintiff would not return to work as he had twisted his back is quite unbelievable. I could not imagine that Mr Kwok would not ask, and the co-worker would not have supplied him with more details as to how the plaintiff twisted his back, bearing in mind that Mr Kwok was the foreman. Even more unbelievable was his evidence that he thought what the co-worker had said to him was merely an excuse by the plaintiff to quit his job. I take the view that all this evidence was designed to play down the accident suffered by the plaintiff in an attempt to show that the injury to the plaintiff was caused by the plaintiff's own carelessness. This explains their evidence that the accident was not reported until two days later.

42. Accordingly, I accept the plaintiff's evidence where it differs from that given by the witnesses called by the defendants. From all the evidence, I make the following findings of fact :-

1. The plaintiff was at the material time directly employed by the 3rd defendant as a stone-cutter working in caissons on the site. The plaintiff started work at the site on or about 6 June 1995. Some 10 days before 6 July 1995, the plaintiff began to work with one Lee Ah Yau in caisson no.CR7.

2. For those 10 days or so, while the plaintiff was working in caisson no.CR7, the plaintiff had been chasing the foreman Kwok Siu Lung to have the centre point marked in this caisson.

3. On 5 July 1995, during the plaintiff's lunch break, the centre point was marked in this caisson by persons responsible for doing it. Furthermore, parts of the wall of this caisson were marked with red paint to indicate that protruding rocks needed to be further drilled and cut away. Those parts marked with red paint on the caisson wall was about two metres high from the bottom of the caisson. The plaintiff undertook this work of cutting away the protruding rocks by using a pneumatic drill on the afternoon of 5 July, as well as the morning of 6 July.

4. On the morning of 6 July while undertaking this work, and in order to reach the height of some two metres from the bottom of the caisson, the plaintiff stood on the metal bucket filled with rocks and stones and pushed to the side of the caisson wall where the plaintiff had to drill. The plaintiff had one foot on the edge of the metal bucket while his other foot rested on another piece of protruding rock protruding from the caisson wall, and in that position, the plaintiff was using a pneumatic drill to drill into those parts of the caisson wall marked with red paint.

5. The metal tank was provided by the 1st, 2nd or 3rd defendant on the site, for the purpose of transporting the caisson workers down into and up from the caisson, as well as for transporting the loose rocks and stones out of the caisson. The plaintiff was however also expected by the defendants to use the metal bucket as a make shift platform if he should need to reach a higher level of the caisson wall for the purpose of drilling. No other equipment such as a proper platform was provided to the plaintiff.

6. When the plaintiff was drilling the caisson wall in the manner described above by standing on top of the metal tank, the plaintiff lost his footing on the protruding rock and his balance, thereby falling from the top of the metal tank onto the bottom of the caisson.

Liability

43. Based on my findings above, I am of the view that the main cause of this accident was the failure of the defendants to provide the plaintiff with the necessary and suitable equipment, such as a suitable and proper platform, from which the plaintiff could reach the height which he had to drill at and be able to firmly plant his feet on the platform for that purpose. The issue is not, as was thought by the defendants, whether or not the plaintiff had adopted the correct method of excavation in the caisson. Even if the plaintiff had not adopted the correct method of excavation, as long as the plaintiff was required to drill off protruding rocks from the caisson wall, the plaintiff should have been provided with the suitable equipment, namely, a proper platform from which to work. Instead the plaintiff was only provided with this metal bucket to be used as a make-shift platform when filled with rocks and stones.

44. Moreover, having stated in the foregoing paragraph what in my view was the cause of the accident, it is irrelevant whether the plaintiff lost his balance because the protruding rock on which he had one foot came loose or whether it was because the point chip of his drill slipping. The reality of the matter was that the plaintiff found himself in a precarious position having to balance himself with one foot on the edge of the bucket and another on a protruding rock in order to drill because the defendants had failed to provide him with a proper and suitable platform to work with.

45. I have no difficulty in coming to the conclusion that the metal bucket was not the proper or suitable equipment to be used by the plaintiff as a platform when drilling, since both Mr Tam and Mr Kwok agreed in cross-examination, that it would be dangerous for someone to be drilling while standing on top of the metal tank. Accordingly, I find that all three defendants liable to the plaintiff in negligence in that they have failed to provide a safe system or place of work being the occupiers of the site.

Contributory negligence

46. Even accepting in this case that the plaintiff was an experienced stone-cutter, I would be slow in finding contributory negligence on his part by reason of the fact that he was supplied with inadequate equipment for him to carry out his work. Here the plaintiff had to get on with his job despite the inadequate equipment supplied to him by the defendants. A situation quite different from one in which the plaintiff embarks upon an unsafe method of work to take a shortcut or for his own purposes. In the present case, even if the plaintiff was aware that it would not be safe for him to drill standing on top of the metal tank, he was left with little alternative, short of stopping work altogether. For these reasons, I am not prepared to find that the plaintiff was guilty of contributory negligence.

QUANTUM

Injuries and treatment

47. The plaintiff fell from a height of about one metre at about 10:00 am on 6 July 1995 inside a caisson and landed on his buttocks injuring his back. Immediately after the fall, the pain not being too severe, the plaintiff had tried to continue working. However, by about lunch time on the same day, his back pain became such that he realized he needed medical attention. Even then the plaintiff was able to find his own way to the Accident and Emergency Department of the Princess Margaret Hospital. Initially, at the Accident and Emergency Department of the Princess Margaret Hospital, the plaintiff was treated and discharged, but he was also referred to and seen at the South Kwai Chung Specialist Clinic three weeks later.

48. Pausing here, it should be noted that the plaintiff has a precondition. It is common grounds and not disputed by the parties that the plaintiff had suffered a back injury in 1989, whereby he suffered back pain but without any pain radiating to his lower extremities. As a result of that injury in 1989, the plaintiff was given physiotherapy for one year and put on sick leave for 19 months. Ultimately, he was assessed for the 1989 injury to have 13% loss of earning's capacity by the Employees' Compensation Board. He recovered sufficiently from the 1989 injury and returned back to work in mid 1993 as a general construction site worker. By the end of 1993, he was able to resume his former work as a caisson worker.

49. Returning to the plaintiff's 1995 injury, when he was referred to the South Kwai Chung Specialist Clinic, the plaintiff was experiencing pain, not only at his back but also radiating down to the left lower limb, as well as weakness of his left big toe. After three months of physiotherapy, the pain in the plaintiff's left leg had subsided but his back pain continued. An MRI scan was performed in 1996 which showed a mild disc bulging in the 3rd, 4th and 5th lumbar vertebrate, as well as the 1st sacral vertebra.

50. The plaintiff was examined by Doctor Arthur Chiang in December 1997. At the time of this examination, the plaintiff complained of developing back pain with prolonged walking, prolonged standing, climbing stairs or lifting heavy weights. He could manage to sit for only 50 to 60 minutes. There was back pain when he sneezed or coughed. He had to keep his back straight when squatting and there was more back pain in the mornings. Upon examination, Doctor Chiang found that there was some limitation as to the range of movement of the plaintiff's back, but that the muscle power of both lower limbs, as well as reflexes were normal. Doctor Chiang further found that there was no obvious evidence of compression fractures. Doctor Chiang came to the conclusion that the injury sustained in July 1995 by the plaintiff was a soft tissue contusion injury to the lower back.

51. As for the plaintiff's precondition, Doctor Chiang was of the view that the plaintiff had degenerative changes in the lumbar spine which were likely to be present before the accident in July 1995. Without the 1995 accident, Doctor Chiang was of the opinion that the degenerative changes in the plaintiff would have manifested itself with on and off low back pain which may be aggravated by a period of prolonged and heavy manual labour work. Doctor Chiang was also of the view that insofar as the plaintiff's back injury in 1989 was concerned, some residue of that injury might still be present in the lower back. He concluded that because of the pre-existing condition, namely the degenerative changes and the residues from the previous back injuries sustained in 1989, the contusion injury of the low back in 1995 might have required more time to improve and this, therefore, accounted for the prolonged rehabilitation period required.

52. Doctor Chiang further concluded that the present back condition of the plaintiff could allow for satisfactory daily activities and moderate amount of manual work, but that prolonged heavy manual work or remaining in a stressful working postures could well bring on the painful symptoms. Doctor Chiang assessed the permanent impairment of the whole person for the current back condition to be about 10%, of which 4% would be due to the 1995 injury. He was also of the view that the plaintiff would not be able to return to his pre-accident job as a caisson worker, but that the plaintiff would be able to perform odd jobs in the construction site, light duty jobs in the interior decoration and as a cleaner or security guard. He further assessed the plaintiff's loss of earning's capacity as a result of the July 1995 accident to be about 10%.

53. The plaintiff was also examined by Doctor Lam Kwong Chin in September 1998. The findings by Doctor Lam did not significantly differ from the findings by Doctor Chiang. Doctor Lam accepted that at the time of his examination in September 1998, there was indeed a certain degree of discomfort in the plaintiff's left lower back and that the plaintiff was not fit to return to heavy manual labour but could have a sedentary job or most light to moderate manual work.

54. The main difference between Doctor Lam and Doctor Chiang is that Doctor Lam was of the view that the 1995 injury was a recurrence of the previous back injury suffered by the plaintiff in 1989. He also took the view that the 1989 injury was a much more severe injury and accounted for most of the plaintiff's present impairment. He therefore assessed that the 1995 injury only resulted in a 1% impairment of the plaintiff. In line with this assessment, Doctor Lam took the view that the two years' sick leave granted to the plaintiff by the Medical Assessment Board was excessive and wrong.

55. The difference in views expressed by the two medical experts, Doctor Chiang and Doctor Lam, although small, nevertheless it falls upon me to resolve that difference for the purpose of deciding the question of quantum. I prefer the view and the assessment of Doctor Chiang to that of Doctor Lam for two reasons as follows. Firstly, in challenging the Medical Assessment Board's granting two years' sick leave to the plaintiff, no good reasons have been advanced by Doctor Lam apart from his own assessment of the plaintiff's impairment. Moreover, the Medical Assessment Board is an independent body entrusted with assessing the extent of injuries. Secondly, Doctor Lam's own acceptance of the fact that the plaintiff was suffering some degree of discomfort in his left lower back even in September 1998 seems to go against his challenge of the two years' sick leave.

56. Evidence was also put before me by the plaintiff that he had consulted a private doctor, Doctor Ma Ming Shing, in 1999 because of his back pain and was granted sick leave (several days each visit) totally from 10 September until 9 October 1999. Doctor Ma gave evidence that the plaintiff's back pain only subsided after pain killing injection was administered. I have no reason to disbelieve Doctor Ma's evidence.

Pain suffering and loss of amenities

57. In coming to an assessment under this head, I take into account the fact that the plaintiff had never been hospitalized nor underwent any operation. On the other hand, it is clear that the plaintiff has been suffering pain in his back for a long time. No doubt it was this pain which caused the Medical Assessment Board to have granted him two years of sick leave.

58. It would also be necessary for me to consider the pre-existing condition in the form of the degenerative changes to his lumbar spine and also the back injury suffered by the plaintiff in 1989 in arriving at a reasonable figure for damages under this head.

59. Doctor Chiang took the view that the degenerative changes in the plaintiff's lumbar spine would have caused him on and off back pain even without the 1995 injury. Moreover, I would also need to take into account the 1989 back injury for which the plaintiff had been compensated. Doing the best I can in these circumstances, I am of the view that $100,000 would be reasonable compensation to the plaintiff for pain suffering and loss of amenities.

Pre-trial loss of earnings

60. 571/2 months have elapsed since the accident on 6 July 1995. The plaintiff's evidence that he was earning $26,000 per month before the accident as a stone-cutter is supported not only by the Form 2 which was signed by a Mr Lam from the 2nd defendant, but also supported by the letter signed by Mr Tam Yiu Keung to the Social Welfare Department (Exhibited P2). I have no hesitation in accepting the plaintiff's evidence in this respect. The $26,000 per month was calculated on the basis of the plaintiff being paid $1,000 per day, working for 26 days in a month.

61. There is also evidence before me which I accept from a witness called by the plaintiff, Cheung Yau Han (PW3) who has been working in construction sites for some 20 years. His evidence was that before late 1996, he had worked as a plasterer for about one year and was paid $900 a day. In late 1996, he changed to become a concrete worker in construction sites and was paid $800 a day. Presently, he still works as a concrete worker and is still being paid $800 a day. No explanation was given by him as to why he had changed from a plasterer, being paid a higher daily wage, to a concrete worker receiving $100 less per day.

62. It is also common grounds between the parties and not in dispute that hand-dug caissons was banned, at the latest, in February 1996. The Ordinance banning hand-dug caisson became operative in 1995 but a grace period of 12 months was given to those construction sites using hand-dug caissons when this Ordinance took effect. What it effectively means is that after February 1996, the plaintiff could no longer continue as a stone-cutter working inside the caisson but would have to take on some other form of work whether or not this accident had happened.

63. I also accept that the plaintiff was granted two years' sick leave by the Medical Assessment Board as a result of this accident in July 1995.

64. Due to the various complexities in this case affecting the plaintiff's loss of earnings in different ways, I propose to deal with the pre-trial period in different stages.

65. For the first eight months after the accident up to February 1996, when hand dug caisson was banned, I would award the plaintiff's loss of earnings at the full amount of $26,000 per month. For those eight months, therefore, the plaintiff's loss comes to $208,000. This is because I take the view that had it not been for his fall in July 1995, the plaintiff would most probably have continued for those eight months doing the same job that he was doing, namely, a stone-cutter working in caissons prior to his accident. I have taken this view despite the presence of his degenerative changes as well as his previous back injury in 1989 because after he returned to work as a caisson worker at the end of 1993, there is nothing in the evidence to suggest that up to the time of his accident in July 1995, the plaintiff was unable to perform the work of a stone-cutter inside a caisson due either to the degenerative changes or his earlier back injury.

66. The second stage would be from February 1996 up to the end of his two years' sick leave period, namely, the following 16 months. During these 16 months, the plaintiff will most certainly not be able to work as a stone-cutter in caissons because of the ban on hand-dug caissons. Chances are, however, he will still be working in construction sites but doing a different kind of work, and probably receiving less wages than before the accident in July 1995. Based on the evidence of Cheung Yau Han, I find the plaintiff could still earn about $800 per day. There is no reason to think that the plaintiff would work less than 26 days a month because he has a wife and children to support, and on that basis the loss therefore to the plaintiff for these 16 months comes to $332,800.

67. In December 1997, the plaintiff was examined by Doctor Arthur Chiang who was of the view that the plaintiff would not be able to return to his pre-accident job as a caisson worker, but would be able to perform some lighter duties. This was just five months after the two years sick leave period ended. Probably that opinion of Doctor Chiang would be equally applicable to those five preceding months as well.

68. I have also considered the plaintiff's evidence that he found work as a security guard with Golden Knight Security Limited at the salary of $5,300 per month. He started this job at the end of August 1999, however that job was short lived for when he was granted sick leave starting 10 September 1999 by Doctor Ma, his employment with Golden Knight Security Limited was terminated.

69. I accept this evidence of the plaintiff which is supported by documentation from Golden Knight Security Limited. However I take the view that his back pain which led to the termination of that employment in September 1999 to be a manifestation of his pre-existing condition rather than a direct consequence of his 1995 injury.

70. Thus for the 331/2 months from the end of the sick leave period until trial, and on the basis that the plaintiff would have been doing some light or sedentary work which would pay $5,300 per month instead of construction site work paying $800 per day, for 26 days, the loss to the plaintiff would come to $15,500 per month. However from this figure, an adjustment would have to be made to take into account the pre-existing condition of the plaintiff. Relying once again on Doctor Chiang's assessment that the impairment of the plaintiff in respect of his current back condition is 10% of which 4% would be due to the 1995 injury, I would assess the plaintiff's monthly loss of earnings for these 331/2 months to be 40% of $15,500 being $6,200 per month. This would give a total sum of $207,700.

71. On the above workings, the total pre-trial loss of earnings comes to $748,500.

Future loss of earnings

72. For calculating future loss of earnings, I would adopt the same multiplicand as was used for the last 331/2 months in respect of the pre-trial loss of earnings, namely $6,200. As for the multiplier, I take into consideration the fact that the plaintiff is now 49 years old at trial. An appropriate multiplier for a man of the plaintiff's age would be "9". I am fully aware that a reduced multiplier is the usual and most accurate way of giving effect to a pre-existing condition in a plaintiff (see Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523). However, in the present case, due to the different complexities in quantifying the plaintiff's loss and also the fact that the multiplicand adopted is one which has already taken into account, the pre-existing condition of the plaintiff, I am of the view that the multiplier of "9" should not be further reduced. On that basis, total future loss of earnings would come to $6,200 x 12 x 9 which gives $669,600.

Loss of earning's capacity

73. Under this head, the plaintiff claims $180,000. On the other hand, the defendants say that the plaintiff is not entitled to anything. Doctor Chiang, whose assessment I have accepted, assesses the plaintiff's loss of earning's capacity as a result of the accident on 6 July 1995 to be about 10%. It seems clear enough that the injuries suffered by the plaintiff as a result of the 1995 accident, which causes him low back pain, will cause him to suffer a real handicap in the labour market. The position is further complicated by the fact that the plaintiff has a pre-existing condition which in time will adversely affect his working life and which does not arise out of the 1995 accident. Moreover, the plaintiff has been compensated for future loss of earnings on the basis that he will be able to secure alternative employment of a lighter nature worth $5,300 per month. Therefore, his handicap in the labour market ought to be looked at in the light of this alternative employment so as to prevent any overlap in compensation. I am of the view that 12 months of the salary in his alternative employment should be sufficient to compensate the plaintiff under this head of damages. I therefore award the amount of $63,600 for loss of earning's capacity.

Special damages

74. Special damages claimed in the total amount of $6,500 are not disputed by the defendants and are allowed.

Interests

75. Interests will be awarded at 2% per annum for general damages for pain suffering and loss of amenities from the date of writ until the date of judgment. Interests on pre-trial loss of earnings and for special damages will be awarded at half judgment rate (5.97%) from the date of accident to the date of judgment.

Deduction of ECC compensation award

76. From the total amount of damages and interests, the amount of ECC compensation already awarded to the plaintiff in the sum of $467,000 should be deducted.

Summary

PSLA	$100,000
Pre-trial loss of earnings	$748,500
Future loss of earnings	$669,600
Loss of earning's capacity	$63,600
Special damages (agreed)	$6,500
Interests on general damages	$3,833
Interests on special damages and pre-trial loss of earnings	$217,440
	$1,809,473
Less ECC compensation	$467,000
	$1,342,473
	========

Accordingly, there will be judgment to the plaintiff in the sum of $1,342,473.00.

Costs order nisi

77. I can see no reason to depart from the usual rule that costs to follow the event. I therefore make a costs order nisi that the costs of this action be to the plaintiff, to be taxed if not agreed.

78. The costs of an application by the plaintiff by Summons dated 20 October for specific discovery of contract documents including plans, drawings relating to excavation of caissons at the site (which application was heard and granted by Seagroatt J. not long before the trial of this action) was reserved to the trial judge to decide whether the documents discovered were relevant and necessary at the trial. However, despite the application being granted, no such plans, drawings or diagrams were produced by the defendants. This was because the defendants did not have such plans, diagrams or drawings in their possession. Without seeing the documents sought to be discovered, it would not be possible for me to decide whether such documents sought were relevant or necessary for the trial of this action. I can only fall back on the fact that Seagroatt J. granted that application. On that basis, I will order the costs of that application to be the plaintiff's.