LAM PO WAI v. I-CABLE COMMUNICATIONS LTD

HCPI 695/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 695 of 2008

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J U D G M E N T

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1.  The plaintiff, who is an experienced electrician, claims damages against the defendant in respect of an accident which took place on 19 October 2005.  The defendant denies liability and denies that the plaintiff’s existing condition is as a result of injuries caused by the accident.

2.  The plaintiff was, at the time, employed by the defendant.  He worked as a lighting engineer in the defendant’s television studios.  On the day in question, 19 October 2005, he was working in studio D on the 13^th floor (or possibly the 12^th floor, as there may be some doubt as to the exact floor but not as to the studio) of the defendant’s premises.  At about 12.20 pm he had an accident.  He says that he was working in a narrow passage between a fixed backdrop and a movable backdrop.  There is no doubt that it was a cramped space, filled with lighting equipment, socket boards and wiring.  The lighting equipment had been set up some 3 weeks or so earlier by an outside contractor.

3.  The plaintiff says that he had adjusted the lighting in accordance with instructions he had been given and was clearing up, trying to make the place tidier.  He demonstrated in court how he had been moving along, quite slowly.  He said that he had not yet turned on the lights and he had unplugged the wire from the socket board.  He was bent, or crouched, down to a level that was about the height of the bar table i.e. about 3 feet high.  Whilst he was moving along, in that rather cramped condition, he says he trod on a socket board, which was about 2½ inches thick, he lost his balance, fell forward, his right foot tripped over something, which I take to have been a wire, and he fell.  In the process his hand came in contact with the movable backdrop and although he tried to grab something with his left hand he landed on the back of his right hand and wrist.

4.  Although he suffered a crescent shaped cut on the back of his hand, it was described as being 1.5 cm long and superficial.  Nevertheless it was bleeding.  He also complained that it was painful and the defendant’s witness, Mr Lo Wah Shum, confirms that not only did the plaintiff say so at the time but he could see that was so.  The plaintiff was taken by ambulance to the Yan Chai Hospital and the doctor there recorded that he was complaining of tenderness but, apparently, he could not find any focal point for the tenderness.  At that stage the plaintiff had full movement in his wrist.  A week later he returned to the Tuen Mun Hospital where it is recorded that he had sustained an injury to his right hand and right wrist on 19 October.  The laceration wound had by then healed and there was no sign of infection.  However, the report shows that there was local tenderness at the ulnar region of the right wrist and increased pain with dorsal flexion, that is when the wrist was extended backwards.  He was given an anti-inflammatory medication and another medication of the type which is generally used to protect the stomach from the effects of the anti-inflammatory drug.

5.  The plaintiff was given sick leave and he continued to complain of loss of grip and pain in the right wrist.  Then on 7 September 2006 he had an arthroscopy of the wrist under general anaesthetic.  There were three incisions and the operation record shows that there was lunotriquetral longitudinal instability, that the dorsal capsule was avulsed from the dorsal aspect triquetrum and that there was scar tissue around the lunotriquetral interval there was a small central triangular fibro cartilage capsule tear.  Dr Lam Yan Kit, who gave evidence on behalf of the defendant, told me in answer to a question I put to him, that the condition which the arthroscopy revealed would have given rise to the existence of symptoms which would have justified the plaintiff in having an arthroscopy in the first place.

6.  The plaintiff was given sick leave, apart from a short period, until 7 June 2008.  He then returned to work with the defendant but he found that he could not cope with the work due to his injury and he ceased work again.  He has not worked since the beginning of October 2008, although he says that he has looked for work that he felt he could do.  He tried to gain employment as a driver and as a salesperson but his efforts had proved unsuccessful.

7.  The defendant challenges the suggestion that the accident happened in the way the plaintiff has described.  It is the defendant’s case that the accident occurred in the manner described in the accident report form which is dated 20 October 2005.  That states that the plaintiff was in the process of adjusting and focusing one of the lights in the gap between the backdrops because its position had shifted.  It goes on to state:

“Because the position of the light was on the floor inside the Gap, (he) had to kneel down and extend (his) hand inside the gap to adjust the light.  (He) inadvertently (touched the light).  The light was very hot, (he) instinctively withdrew (his) hand, and hit against the bottom part of the backdrop.  Some unknown sharp object lacerated the dorsum of (his) hand.”

8.  That accident report form has the following notation at the bottom:

“(Note: This application should be submitted to Human Resources Department via Department Manager within 48 hours after the injury.

Incident Report for Employees must be submitted together with the original sick leave doctor certificate and leave application form.”

9.  It would seem from the wording of that form that it was, presumably, intended that it would be submitted by the person injured when he submitted his sick leave certificate signed by the doctor.  However it was not.  It was signed by Mr Lo Wah Shum.  Mr Lo appears to have been a person of similar grade to the plaintiff.  He gave evidence that he had not been present when the plaintiff had been injured.  He had been in the office on the sixth floor and had come up when he was informed of the plaintiff’s injury.  He said that by that time the plaintiff’s hand was being bandaged by the security guard and the bleeding had stopped.  There were a number of people around at the time and the ambulance had been called.  While still waiting for the arrival of the ambulance he had asked the plaintiff how the accident had happened.

10.  I regret to say that having seen Mr Lo in the witness box, from the manner in which he appeared to understand and answer the questions my impression was that Mr Lo was not very bright.  In contrast to the plaintiff, whose evidence was given in a very clear and unexaggerated way, I have no hesitation in accepting the plaintiff’s explanation of how he came by his injury.  I do not attribute any malice to Mr Lo or any intention to ingratiate himself with his employer or otherwise.  On the contrary I can easily understand how, when a person has been injured and, as Mr Lo said, was in pain and waiting for an ambulance to come and take him to hospital, there may be miscommunication between him and those around him who were asking how he injured himself.  At the time the important matter was not how he came by his injury but how bad it was; whether he was in pain and whether he needed to go to hospital.  What he said to Mr Lo at that time was not the equivalent of giving evidence in court.  There were other people around and they have not come to support Mr Lo’s version and contradict the plaintiff.

11.  Unfortunately, the matter does not end entirely there.  Nearly 2 years after the accident, on 19 September 2007, solicitors on behalf of the plaintiff wrote to the defendant and, using words which very closely replicated the accident report form, claimed employees’ compensation on behalf the plaintiff.  Indeed the application for employees’ compensation was filed on 3 October 2007 but in the following month there was a consent order dated 8 November 2007 whereby the defendant agreed to pay employees’ compensation and the wording of the clause 3(c) of the application was amended.  Originally it had, again, replicated what was said in the accident report form but it was amended and was consistent with the evidence of the plaintiff in this case.

12.  I consider that the plaintiff’s solicitors should themselves have given evidence to explain the original application and that how it came about that the correction was found to be necessary.  However, having given very careful consideration to that, I accept that the time for filing the employees’ compensation was fast drawing to a close by the time the letter before action was written and the compensation claim was put in.  Furthermore, for the purposes of employees’ compensation the manner in which the accident took place, provided it took place at work, was, perhaps, considered not to be of prime importance.  Nevertheless, the solicitors action in this regard was clearly something less than desirable and could, in other circumstances, have resulted in the plaintiff’s claim failing.

13.  Another matter relied upon by the defendant is the fact that the early medical reports do not refer to the plaintiff having fallen.  It was said that the earliest medical report in which there is a specific reference to a fall, namely an occupational therapy note was some 6 months after the accident.  In this respect I do not place any reliance on that.  The reports relate to a wrist injury and the wrist having been hit by something wooden.  Medical reports are not accident report forms nor are they pleadings in court as to the way in which an accident happened.

14.  The plaintiff said that he did see the accident report form sometime later and he considered that the report was “unimaginable”.  He says that he had told his supervisor Mr Chui that the report was wrong.  Whereas I consider it bad practice for the someone other than the person who was injured with to complete the accident report form and the injured person not be asked to confirm it or sign it, I can understand that as Mr Lo said in evidence it was something required by the Human Resources Department, it had to be filed and, no doubt, if it were to be corrected it would cause some consternation.  I can easily imagine that someone in the position of Mr Chui, might well have considered it a matter of relative unimportance as to exactly how the accident happened and have considered it undesirable to make sufficient fuss to have the matter changed.

15.  Having taken all the matters into consideration, I have no doubt whatever that the plaintiff did come by his injury in the way he described in court.

16.  The next point taken by the defendant is that the plaintiff’s injury to his wrist did not occur on 19 October 2005 must have occurred later.  The defendant’s attempt to construct a case in that regard was, in my view, an attempt to make bricks without straw.  Dr Johnson C.K. Lam, who gave evidence on behalf of the plaintiff said that what was recorded in the medical notes was consistent with the plaintiff’s injuries having occurred at the time of the accident.  I consider that any speculation that somehow the plaintiff came by his injury on another occasion is groundless

Liability

17.  The plaintiff’s case is put upon the basis both of negligence and breach of statutory duty.  In respect of the statutory liability reliance is placed upon two ordinances.  First is the Occupational Safety and Health Ordinance Cap. 509.  Under section 6(1):

“ (1)  Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

  (2)  The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following-

(a)    the failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;....................

(e)    a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health.”

18.  In so far as reliance is also placed on the Occupiers Liability Ordinance Cap. 314 section 3, I do not consider that it advances the matter any further.

19.  I consider that there has been a clear breach, particularly of the Occupational Safety and Health Ordinance.  The passageway, which it is clear that the plaintiff had to use in order to adjust and focus the lights, was not only cluttered with lighting equipment but appears to have had socket boards and wiring which were loose and on the floor.  According to the evidence, these could have been put at the side, they could have been covered and secured with ducting such that they would not have presented the danger which they clearly did.

20.  As regards the breach of the common law duty of care, I consider, again, that the defendant was at fault in leaving the equipment and installations in the way in which the outside contractor had left them, in a place where the plaintiff was required to go in order to adjust and focus the lights as necessary.

21.  I have considered whether the plaintiff was guilty of contributory negligence.  In this respect I bear in mind that contributory negligence can apply not only to the common law duty of care but also to the statutory duty.  Nevertheless, Mr Lim, who appeared on behalf of the plaintiff, was correct in drawing my attention to what Fuad J said in the case of Ng Kam v Sun Wan Company CACV 38 of 1988, 25 October 1988:

“The Plaintiff was that way, not performing his task in a dangerous way to save himself trouble. He was doing it in that way to get on with his employer’s business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer.  There were safer systems available but they were not ones which, in practice, were used.  Indeed as I have mentioned, the chief foreman himself had employed the same method on the evidence accepted by the judge.  In these circumstances, I do not think that an employer can be heard to say that this employee was being negligent in carrying out the work in that manner.  It seems to me that the approach of Denning, L. J. in the Court of Until (Appeal) hearing of the General Cleaning Contractors case which I have read is applicable.”

22.  The reference there was to what Denning LJ had said in the case of Christmas v General Cleaning Contractors Ltd. and Caledonian Club Trust Ltd [1952] 1 KB 141 at 150:

“At the hearing of the appeal it was suggested that the accident might have been avoided if the man had put in a block to prevent the bottom sash coming right down as it did.  This was, in effect, a suggestion of contributory negligence.  This was negatived by the judge, and I agree with him.  You cannot blame the man for not taking every precaution which prudence would suggest.  It is only too easy to be wise after the event.  He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened.  It was suggested also that the man voluntarily took the risk of injury on himself.  The judge negatived this, and I agree with him.”

23.  There was no evidence from the chief foreman as such, but it did appear to me that the plaintiff was in the process of carrying out work in the manner he was intended to do.  It was suggested that he could have moved at least part of the moveable backdrop.  Certainly, on the evidence, a substantial part of the backdrop could not have been moved without disturbing the wiring at a high level, since it was looped into the backdrop.

24.  I have considered carefully, whether the plaintiff should be considered to have been contributory negligent.  Had I been disposed to attribute some contributory negligence to him, it would only have been at a minimal level and I do not consider that in the circumstances of this case it is right to do so.

Damages

25.  Under the various heads of damages, there is some dispute as to amount which the plaintiff is entitled to claim.  In respect of pain, suffering and loss of amenities I consider that an appropriate award would be in the region of $220,000.  No exactness can be extracted from the authorities but it seems to me that the injuries suffered by the plaintiff would merit that.  He is able to ride a bicycle on level ground.  He is able to take other exercise such as swimming.  But he is not in a position to lift heavy weights, particularly with his right hand.

26.  It is agreed that up until 7 June 2008 the plaintiff has suffered loss of earnings of $721,846.91.  The major dispute between the parties is as to the amount which the plaintiff could be expected to earn and the date from which that should be calculated.  In this respect I accept entirely that the plaintiff is unable to return to his former work.  He has suffered a significant loss of capacity in his right hand and he is clearly unable to handle the sort of equipment which his former employment would require.  He could not be expected to handle safely heavy lighting equipment and the like.  Similarly, I do not consider he is equipped to be an electrician.  Although many functions which an electrician must undertake do not require heavy work, clearly, some, such as pulling heavy wires, would require strength in the right hand which he no longer possesses.

27.  Dr Johnson Lam stated in the joint medical report that he considered that the plaintiff should be able to work in a job which required light physical demands and he gave as an example a sales person selling light goods or a watchman.  It is true that Dr Y K Lam considered that the plaintiff should be able to return to the pre-accident work.  However, I am satisfied that he is not able to do so.

28.  Various examples were given to me drawn from the tables produced by the Hong Kong Government of average monthly salaries.  Some of the examples would appear to relate to very specialised sales staff.  I consider that it is reasonable to approach the matter on the basis that the plaintiff should have been able and should now be able to command a salary of about $12,000 per month in respect of the period up until trial and continuing.  I consider that it should be calculated that the plaintiff should have been able to work after 1 October 2008.  It has been agreed that the damages should be calculated on the basis that the plaintiff would have earned $21,317 per month had he not suffered the accident.  The damages must be calculated on the basis of the agreed multiplier of 13.

29.  I would therefore calculate the loss as follows in respect of pre-trial loss of earnings $209,635.50.  In this respect it is agreed that that figure should do 105% of that figure should be taken into consideration to take into account the loss of provident fund and in respect of the Mandatory Provident Fund, making a figure of $220,114.12  By my calculation, the loss of future earnings that would be $1,526,124.60.   The loss of earning capacity would be $120,000.  I would award the sum of $50,000 a special damages allowing for $5,000 in respect of the extra tonic food in place of the amount claimed.

30.  I would therefore make a total award of $2,858,085.63 in damages.  To that must be added interest and from that must be deducted the payment in respect of Employees’ Compensation.  That parties can agree the final computation.  I would make an order nisi of costs in favour of the plaintiff.  I give liberty to apply in case there is any miscalculation of the amounts involved.