POON HAU KEI v. HSIN CHONG CONSTRUCTION CO. LTD. AND OTHERS

HCPI 1333/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1333 OF 1998

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J U D G M E N T

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1. The plaintiff was a scaffolding worker. He is claiming damages for injuries sustained as a result of falling from height while working at the KCRC Kowloon Station, Hung Hom on 5 January 1996. The 1st defendant was the principal contractor of the construction site. The 2nd defendant was the fire services sub-contractor engaged by the 1st defendant. The 3rd defendant was the scaffolding sub-sub-contractor engaged by the 2nd defendant. The 3rd defendant denied having employed the plaintiff. There was also dispute as to how the accident had happened. The trial covers both liability and quantum.

I. LIABILITY

Background

2. The site in question was Railway Platform No.5 of the Kowloon Station. Fire services system was to be installed at the ceiling above the railway platform. The ceiling was 8.15 m or 26.7 ft above the railway platform. At some stage, two suspended scaffold platforms were constructed above Platform No.5. They were constructed with bamboo poles overlaid with wooden planks and suspended by steel wires from the ceiling. The upper scaffold platform was constructed by the 3rd defendant at the instruction of the 2nd defendant.

3. As at January 1996, the upper scaffold platform had been dismantled, leaving only the steel wires hanging from the ceiling. The 3rd defendant sent workers to have such wires removed. The lower scaffold platform was still being suspended from the ceiling. The distance between the lower scaffold platform and the ceiling was 3.75 m or 12.3 ft., and it was 4.4 m or 14.4 ft above the railway platform. Along the edge of the railway platform was a line of fluorescent light trough hanging 2.5 m or 8.2 ft above the railway platform (see photographs in Agreed Bundle (AB) p.20). The light trough was about 1 ft in width. The distance between the fluorescent light trough and the lower scaffold platform was 1.9 m or 6.6 ft (see sketch in AB p.606). The fluorescent light trough extended beyond the edge of the lower scaffold platform (see photographs in AB pp.21-22).

Plaintiff's case

4. The plaintiff was born on 28 August 1961 and was aged 34 at the time of the accident and aged 39 at trial. He was a master scaffolder of over 15 years standing. He said in mid-1995, he had worked for the 3rd defendant at the Ho Tung Lau Railway Depot. A few days prior to the accident, he was recruited by a fellow worker Leung Kwong Choi to work for the 3rd defendant on Platform No.5. He was in a team of four, with Leung Kwong Choi, Fung Wai Chuen and "Ah Pun". The other three workers went up to the lower scaffold platform via a fixed metal ladder on the railway platform to remove the wires from the ceiling. They first threw the wires down to the scaffold platform, then gathered and took them to the edge of the scaffold platform, and threw them down to Platform No.5. He remained on the railway platform to act as a look out when the wires were being thrown down, so that passers-by might be warned off the landing area. He stood about 10 ft from the landing area. The co-workers would throw down some wires at a time, and to throw down some more after a while. During the interval, he would pull the wires from the landing area to one side and bundle them up with binding strips.

5. The plaintiff said each steel wire was about 10 ft long, 1/2 inch in diameter, and 4 to 5 catties in weight. They were hung 3 to 4 ft apart on the two sides of the scaffold platform.

6. The plaintiff said the four of them started work at 10 a.m. on 5 January 1996. Before they started work, Tsang Lee Ming ("DW3"), site foreman of the 2nd defendant gave them the work instructions. DW3 also said the movable aluminium working platform was not available for them to use on that day. The plaintiff said he had not used this working platform on the days before the accident, but his co-workers had.

7. After working for about one odd hour, the plaintiff saw a few steel wires resting and dangling down from the protruding bamboo poles at the edge of the scaffold platform. He wanted to remove them from the bamboo poles. He thought he ought to remain on the railway platform to act as a look out. Hence he did not go up the scaffold platform to dislodge them. Instead, he borrowed a 11 to 12 ft A-shaped folding ladder nearby, and placed it close to the perpendicular drop of the dangling steel wire. He climbed up to the second rung of the ladder, straddling his feet across the pivotal point of the ladder, facing the dangling wire. He stretched his right hand in a bid to pull the wire. Before he touched the wire, he lost balance and fell from the ladder onto Platform No.5, and then down to the railway track itself.

8. At the time, the plaintiff was wearing a safety belt. But there was no suitable point for the anchorage of the safety belt.

9. The plaintiff was sent to the Queen Elizabeth Hospital. He suffered the following injuries as a result of the accident :

(a) Subtrochanteric fracture of left femur;

(b) Fracture of left zygoma;

(c) Bilateral fracture of calcaneum; and

(d) Fracture of the L-1 vertebra.

10. He was treated at the Accident and Emergency, and was transferred to the general ward later in the day awaiting surgical operation of the left femur.

11. On 5 January, the plaintiff was visited by DW3, who left a name card and asked the plaintiff to contact him if in need. Later that day, he was also visited by the 3rd defendant.

12. On 6 January, the plaintiff was visited by Yuen Chi Kwong ("DW1") and a Mr Chan, who introduced themselves as safety officers of the 1st defendant. DW1 asked the plaintiff how did the accident happen and he briefly told DW1 in the way he had told the court. DW1 recorded a statement down on paper (AB p.190) and the plaintiff signed it without knowing its content.

13. The plaintiff was discharged from hospital on 2 March 1996. He was granted sick leave until 7 April 1998.

14. In September 2000, the plaintiff went to his solicitor's office and read the statement dated 6 January 1996 (AB p.190) for the first time. He was shocked to find out that it recorded that he had climbed up the fluorescent light trough and had fallen therefrom :

"... I was responsible for receiving the removed wires and reminding others not to get close to the working area. Afterwards, I climbed up the fluorescent light hanger for the sake of convenience when receiving the wires. At that time, there was another colleague up there being responsible for removing the wires. Because I just concentrated on receiving the wires, (I was) careless and stepped into empty space and fell onto the station platform and fell further onto the tracks..."

15. The plaintiff denied ever climbing onto the fluorescent light trough or having told DW1 so. He said at the time of giving the statement, he was yet to receive the operation on the fractured femur and was in great distress and discomfort. He did not read the content nor was it read over to him before he signed the statement. He also remembered either DW1 or Mr Chan had told him words to the effect of "not to pursue the claim against the company".

16. During his sick leave period, the plaintiff had received the following payments from the 3rd defendant :

(1)	16 February 1996	$10,000
(2)	2 March 1996	$3,600
(3)	17 April 1996	$5,000
(5)	24 May 1996	$7,000
(6)	13 June 1996	$7,000
(7)	July 1996	$7,000
(8)	August 1996	$7,000

17. The plaintiff said that the $3,600 was reimbursement of his hospital expenses, and the others were advanced part payment of his monthly wages.

18. From September 1996 onwards until December 1997, the plaintiff received monthly payment from the 2nd defendant. Initially, the sum was at $7,000 per month as before. On 14 March 1997, the 2nd defendant adjusted the monthly payment based on a daily wage of $700 x 26 days x 2/3 and back paid the plaintiff the balance of what he had hitherto received from both the 2nd and 3rd defendants. On 14 June 1997, the 2nd defendant adjusted the January to March 1997 monthly payment based on the ratio of 4/5 instead of 2/3 and back-paid the balance to the plaintiff.

1st defendant's case

19. In the Re-Amended Defence of the 1st defendant, it was pleaded as an alternative that the plaintiff had climbed up to the fluorescent light trough and had fallen therefrom.

20. DW1 was a Safety Officer of the 1st defendant. There were a number of safety officers to ensure the safety of workers on the site. DW1 said that he visited the plaintiff in the hospital on 6 January 1996 to find out the course of the accident. The plaintiff was in quite good condition. The plaintiff told him the following account :

"The Injured person told me that he was responsible for collecting wires at the (railway) platform. He saw some wires landed on the fluorescent light trough. He then climbed up to the fluorescent light trough to remove those wires. Because there were still other colleagues up there to remove the wires, so to facilitate him to remove those wires, he remained on the fluorescent light to remove the wires. At that time I asked the injured person how he had fallen down, the injured person said that he was pre-occupied with recovering the wires, he had been careless and stepped into the air and fell down."

21. DW1 recorded the gist of the account in the statement dated 6 January 1996 (AB p.190). DW1 admitted that the statement omitted the part where the plaintiff initially climbed up to the fluorescent light trough to remove the wires, and only recorded the part that the plaintiff remained on the light trough to receive the wires for the sake of convenience. DW1 read the statement to the plaintiff once and the plaintiff also read it once. Then the plaintiff signed it.

22. After returning to the office, DW1 drew a sketch purportedly showing what he understood to be the position of the plaintiff before the accident (AB p.192). The sketch showed a worker straddling on a fire service pipe close to the ceiling of railway platform, passing down a wire to the plaintiff who was standing on the light trough and raising his both arms. It contained the description that "The injured said (he) was removing wires at this position when (his) hands slipped, (he) lost (his) balance and fell (?)". DW1 admitted that the plaintiff never told him how he received the wires from above when standing on the fluorescent light trough, nor that his hands had slipped. He imagined what could have happened based on the plaintiff's account. The sketch was never shown to the plaintiff.

23. DW1 said the fluorescent light trough could support the weight of an adult.

2nd defendant's case

24. The Defence of the 2nd defendant denied providing the ladder for use by the plaintiff. Instead, it alleged that a working platform was provided for the plaintiff to use and he was guilty of contributory negligence in failing to use it. The plaintiff was put to the strict proof of the occurrence of the accident.

25. DW3, the site foreman of the 2nd defendant said he gave instructions to the four workers employed by the 3rd defendant including the plaintiff before work began on 5 January 1996. He instructed them to use a movable aluminium working platform when working at height and also to wear safety belt. On the day in question, there was only one such working platform and at the material time, it was being constructed on the railway track of Platform No.5. It was to be of such height to reach the ceiling from the track (see sketch Exh.D3). DW3 denied there was any hanging scaffold platform around Platform No.5, and hence the workers could not be working on such scaffold platform.

3rd defendant's case

26. The 3rd defendant (DW4) denied employing the plaintiff. Earlier, he sent the four workers Leung Kwong Choi, Fung Wai Chuen, Wong Kam Por and "Ah Pun" to build the upper scaffold platform. By 5 January 1996, it had been dismantled, leaving behind the handing wires. On 4 January 1996, he told Leung Kwong Choi to get the three co-workers to remove the hanging wires. After the accident had happened, he was told by Leung Kwong Choi that Wong Kam Por was not available on the day and the plaintiff was asked to work instead. The 3rd defendant said the plaintiff's skill was lower than Wong Kam Por and should not have been asked to work.

27. The 3rd defendant admitted making the payments to the plaintiff. However, he denied it had anything to do with the part-payment of the plaintiff's wages during sick leave period. He lent the money to the plaintiff out of kind heatedness. He said the plaintiff had promised to repay him once he received compensation for injury at work from the 2nd defendant.

Assessment of the evidence

(1) Whether the plaintiff was employed by the 3rd defendant

28. The 3rd defendant denied having employed the plaintiff because he had intended Wong Kam Por and not the plaintiff to do the job. However, he agreed that Leung Kwong Chi was acting on his behalf in recruiting workers and Leung was paid the same daily wage as the co-workers. Hence, I find the plaintiff was recruited to work for the 3rd defendant.

29. Further, the 3rd defendant would not have made the monthly payment of $7,000 to the plaintiff except in fulfilment of his obligation for periodic payment during the sick leave period under the Employees' Compensation Ordinance (Cap.282). Although most of the receipts stated the amount to be borrowing by the plaintiff, they were all in the letterhead of Keung Kee Scaffolding Eng. The last receipt dated 12 September 1996 for the payment for August 1996 was stated to be advanced payment of employee's compensation (AB p.38). In a fax dated 8 May 1996 sent by the 2nd defendant to the Employee's Compensation Division of the Labour Department, the 2nd defendant listed out the payments by the 3rd defendant to the plaintiff to date as payment in respect of the injury at work on 5 January 1996. The 3rd defendant agreed that he had given DW3 such information and had given him the relevant sick leave certificates of the plaintiff. Hence, it also supported the fact that the plaintiff was an employee of the 3rd defendant.

(2) How did the accident happen

30. The dispute was whether the plaintiff had fallen off the top of a 11 to 12 ft A-shaped ladder, or whether he had fallen off the fluorescent light trough as stated in his statement dated 6 January 1996 to DW1. There is no eye witness to the accident. The issue is one of credibility of the plaintiff against DW1.

31. The plaintiff was criticised as having given inconsistent versions of how the accident had happened apart from the statement dated 6 January 1996 :

(a) Declaration to Factory Inspector dated 29 May 1996 (AB pp.44 to 48)

This was broadly in accordance with the evidence of the plaintiff except he stated therein that he could have gone up to the scaffold platform to remove the wires, and never mentioned that he had to remain on the railway platform to act as a look out and hence, he could not go up the scaffold platform. Further, the plaintiff said in chief that he did not know from where his three co-workers had climb up the scaffold platform. When cross-examined on this declaration, the plaintiff added that he had gone up to work on the scaffold platform before sometime in mid-December 1995.

(b) Statement of Claim dated 29 December 1998

The original Statement of Claim stated that the plaintiff was provided with a wooden ladder to remove the hanging wires from the ceiling. He stood on the top of the ladder to remove the wires and he threw them onto the ground. After working for 30 minutes, he lost balance and fell. Upon cross-examination, the plaintiff said this account was incorrect as it was not his job to remove hanging wires directly from the ceiling.

(c) Plaintiff's 1st Witness Statement dated 20 January 2000

According to this statement, the three co-workers were responsible for removing the wires from the ceiling whilst the plaintiff was to catch the wires dropped on to the scaffold platform and then to throw them onto the railway platform. Since the mobile platform was not available, he had to place an A-shaped ladder next to the scaffold platform and climbed onto it to work. After 30 minutes, he lost his balance and fell down. Under cross-examination, the plaintiff said this account was also incorrect as it was not his job to remove the wires thrown onto the scaffold platform.

(d) Plaintiff's Supplemental Witness Statement dated 5 September 2001

The plaintiff revised his 1st Witness Statement by giving an account consistent with the declaration dated 29 May 1996, except that he claimed there was no alternative means to remove the wires but to climb up the wooden ladder.

32. It is interesting to note that the 1st Statement of Leung Kwong Choi dated 22 January 2000 contained a similar account as the plaintiff's 1st Witness Statement, which also turned out to be incorrect and was supplemented by his 2nd Statement dated 5 September 2001 which was consistent with the plaintiff's Supplemental Witness Statement of the same date. Under cross-examination, the plaintiff was asked whether he had discussed with Leung Kwong Choi before they made their first statements. The plaintiff said no. It was submitted that since both of them had given a similar but incorrect version, the only conclusion was that they must have discussed the matter beforehand.

33. As to the statement dated 6 January 1996, under cross-examination, the plaintiff admitted that he had told DW1 the preliminary matters which appeared in the statement. However, when it came to the damaging part that he had climbed up the fluorescent light trough, his mind was blank and he did not remember what he had told DW1 about the accident. When asked whether he had told DW1 that he had climbed up a ladder to retrieve the wire, his answer was "I don't know".

34. It was submitted that the plaintiff's charge of framing up by DW1 is a very serious one. Yet, he never sought to explain the circumstances of signing the statement dated 6 January 1996 until he filed his Witness Statement dated 3 December 2001 after the commencement of the trial. It was submitted that the plaintiff's complaint against DW1 was a recent fabrication.

35. Counsel for the 1st defendant also sought to discredit the plaintiff by comparing the height of the dangling wire and the height of the plaintiff. The scaffold platform was 4.4 m or 14.4 ft high. The wire was 10 ft long. When dangling from a protruding bamboo pole of the scaffold platform, the shortest segment should be about 5 ft long, and hence the lowest part of the wire should be 91/2 ft or at most 10 ft above the ground. The plaintiff was 5 ft 4 in. tall, and when he stretched his arm, he could reach a height of 6 ft 3 in. It was submitted that the plaintiff needed only gain height of 4 ft to reach the dangling wire instead of climbing to the top of a 11 to 12 ft ladder. When asked why it was necessary to do so, the plaintiff said that it was only natural that the higher one climbed, the easier to pull the wire.

36. Counsel for the 1st defendant submitted that if the plaintiff did fall when trying to pull the wire with his right hand, the impact injuries would probably be on the right side of the body. However, the plaintiff's injuries were on both heels, left thigh and the left cheek. The plaintiff's expert Dr Lau agreed that the injuries suggested a heavy landing on the left.

37. In the premises, it was submitted that the plaintiff did not fall off the ladder.

38. On the other hand, DW1 was criticised in having made conjectures and inconsistent records of how the accident had happened :

(a) Statement dated 6 January 1996 (AB p.190)

DW1 admitted that there were material omissions of the account given by the plaintiff in the hospital.

(b) The sketch (AB p.192)

DW1 admitted that the purported theory of how the accident had occurred was based on his conjecture.

(c) Accident Report dated 8 January 1996

(Exhibited to DW1's Witness Statement dated 15 July 2000)

In explaining why did the unsafe condition exist, DW1 stated that :

"The scaffolder climbed to the fluorescent tube hanger as a shortcut without using suitable ladder to remove some wire ropes and bamboo bandage which was dropped on it."

Under cross-examination, DW1 admitted that the plaintiff never mentioned bamboo bandage. DW1 added this himself since he saw some on the railway platform.

(d) DW1's Witness Statement dated 15 July 2000

In para.11(c) of the Witness Statement, DW1 stated that :

"[The plaintiff] found a steel wire fallen onto the fluorescent tube hanger which was at a height of about 2.5 m above the platform. He climbed to the fluorescent tube hanger and walked on it in a bid to reach the steel wire. Whilst he was walking on the hanger he lost his balance and fell onto the platform and then to the track sustaining injuries."

DW1 agreed that on 6 January 1996 the plaintiff did not say he had ever walked on the fluorescent light trough and lost balance in doing so.

39. Counsel for the plaintiff submitted that the 1st defendant's theory that the plaintiff had fallen off the fluorescent light trough as improbable :

(a) DW1 never investigated how the plaintiff had climbed onto the fluorescent light trough;

(b) If the wire has fallen onto the fluorescent light trough, given that the light trough was only 1 ft wide, chances are that the wire will be dangling down. And given that light trough was only 2.5 m or 8.2 ft high, there is no need to gain height but simply to pull the wire down;

(c) There is no reasonable explanation as to why the plaintiff had to remain on the light trough to receive the wires. The theory that the plaintiff was receiving the wire passed down from above was quite untenable in that the wire was not rigid like a bamboo pole. Once the worker above released the grip, the wire would become floppy and might collapse on to the worker below. DW1's superior had put a question mark on the sketch to query this theory. DW1 admitted that it was only his conjecture.

40. I daresay DW1's investigation into the accident left a lot to be desired for. The Statement dated 6 January 1996 was admittedly incomplete. To a certain extent, the omission was post-recorded in the Accident Report. The theory of the accident in the sketch was based on his imagination. DW1 was honest in admitting so in court. What remained was that the plaintiff had signed the statement dated 6 January1996.

41. The plaintiff said he was in great discomfort and was not aware of the contents when he signed the statement. Both DW1 and the 3rd defendant who had visited the plaintiff in hospital on 6 January 1996 said the plaintiff was fully alert at that time. Under cross-examination, he was able to remember giving the account of matters preliminary to the accident in the statement up to the point of climbing up the fluorescent light trough, whereupon his mind became blank. He could not remember what he had told DW1 about the accident, not even whether he had mentioned climbing a ladder. The plaintiff is simply incredible in his explanation on the giving and signing of the statement dated 6 January 1996. I also accept the criticism against him by counsel for the 1st defendant mentioned above. I do not accept that the plaintiff is a credible witness as to how the accident had happened.

42. I find that DW1 is an honest witness in relation to the circumstances of the taking of the statement dated 6 January 1996. I find that the plaintiff did sign it while fully aware of its content. I find what was recorded in the statement was true to the plaintiff's own knowledge. I also accept DW1's oral evidence as to what the plaintiff had told him as the course of the accident. Hence, I find that the plaintiff had climbed onto the top of the fluorescent light trough to retrieve a dropped wire and had fallen therefrom as opposed to falling off the ladder.

43. I note that the plaintiff has only pleaded falling off a ladder and not falling from the fluorescent light trough as an alternative as it has been denied vehemently. Nevertheless, it has been the pleaded as an alternative in the Re-Amended Defence of the 1st defendant. The matter was fully canvassed in evidence and submissions by the parties. There is no prejudice to any one. The fact that the plaintiff did not explain how he got onto the fluorescent light trough was entirely of his own making. I shall proceed to consider the liability of each of the defendants on this basis.

(3) Whether a movable working platform was available

44 . DW3 said the only movable aluminium platform was being constructed on the tracks to reach the ceiling. Although DW3 said the plaintiff and his co-workers should all be working on that working platform, he was merely dogmatic in stating the theoretical. His denial of the existence of the scaffold platform when it was common ground between the parties made his evidence unworthy of consideration.

45. I accept the plaintiff's evidence that at the commencement of work on 5 January 1996, DW3 told him that the movable working platform was not available. I find that there was no suitable working platform at the level of the fluorescent light trough for use by the plaintiff on the railway platform.

Liability of the 3rd defendant

46. The 3rd defendant was the direct employer of the plaintiff. As such, he is under a duty to provide and maintain a safe system of work including adequate instructions and supervision, to provide and maintain safe and adequate plant and equipment, and to provide and maintain a safe place of work. The employer's duty to his employees is personal and non-delegable (Wilson & Clyde Coal Co. Ltd v. English [1938] AC 57).

47. The plaintiff had to retrieve a wire on the top of the fluorescent light trough, which was 2.5 m or 8.2 ft above the ground. There was a scaffold platform but it was 1.9 m or 6.6 ft above the fluorescent light trough, and hence not a suitable platform to reach the light trough. The fact that the plaintiff had to climb up the fluorescent light trough means that he had to gain sufficient height to carry out his work.

48. The 3rd defendant did not attend the site on the day in question, but left his four workers to the site foreman of the 2nd defendant, DW3, for work instructions and the necessary working platform. There was no suitable working platform to reach the height of the fluorescent light trough. An alternative safe means should be provided for the plaintiff to gain height. Neither the 2nd nor the 3rd defendants provided the plaintiff with any ladder and helping hand to secure it. At any rate, a site foreman or a supervisor should have warned the plaintiff against climbing on top of the fluorescent light trough. I find the 3rd defendant was negligent in failing to discharge the duty to provide suitable equipment to reach the top of the fluorescent light trough and/or to supervise or warn the plaintiff off climbing on top of the fluorescent light trough.

Liability of the 2nd defendant

49. On the day in question, DW3, the site foreman of the 2nd defendant was in charge of the platform No. 5 and directly gave instructions to the four workers including the plaintiff in relation to the removal of the hanging wires before work commenced. Hence, it was foreseeable to the 2nd defendant that the plaintiff was required to gain height, and unless suitable and safe equipment was provided to enable him to do so, there was a danger of falling from height. It was the 2nd defendant's case that they never provided any ladder, but instead, a working platform was provided. As I have found against them as to the provision of the working platform, I find them in breach of the duty of care towards the plaintiff.

50. The plaintiff has also pleaded the breach of common duty of care under section 3 of the Occupiers Liability Ordinance (Cap.314) against, inter alia, the 2nd defendant. Under section 3(2) :

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

51. The site foreman of the 2nd defendant, DW3, was in charge of the Platform No.5. Hence, I find that the 2nd defendant was in control and hence an occupier of the site. DW3 knew or ought to have known that the plaintiff was lawfully invited on to the site to carry out a dangerous activity, namely the removal and/or collection of the hanging wires. He should supervise and warn the plaintiff off climbing on top of the fluorescent light trough, a dangerous part of the premises by reason of its narrow width of 1 ft. Hence, I find that the 2nd defendant was in breach of the common duty of care towards the plaintiff.

Liability of the 1st defendant

52. The 1st defendant was a contractor responsible for the site in question under the Construction Sites (Safety) Regulations (Cap.59 Sub. Leg.I) ("the Regulations"). Under regulation 2(2)(a) of the Regulations :

"... a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there; ..."

53. A contractor responsible for a construction site was under the following statutory duty where work cannot be done from the ground:

Regulation 38A of the Regulations (relevant version as at the date of the accident) :

"Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that-

there is, so far as is reasonably practicable, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works, which access and egress shall be properly maintained; and

every place on the site at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there."

Regulation 38B (relevant version as at the date of the accident) :

"Without prejudice to the other provisions of this Part, where work cannot safely be done on or from the ground or from part of a building or other permanent structure, the contractor responsible for the construction site concerned shall provide, place and keep in position for use and properly maintain either scaffolds or, where appropriate, ladders or other means of support, all of which shall be sufficient, strong and suitable for the purpose."

Reg.38Q (relevant version as at the date of the accident) :

"(1) Where by reason of the special nature or circumstances of any part of the work or of the access thereto or the egress therefrom it is impracticable to comply with all or any of the requirements of regulations 38A, 38B, 38L, 38M, 38N and 38P so far as they relate to the falls of persons, the contractor responsible for a construction site shall erect and keep in such positions as to be effective to protect persons carrying on that part of the work or using the said access or egress suitable safety nets or safety belts or other suitable and sufficient equipment of such a design and so constructed and installed as to prevent so far as practicable injury to persons :

Provided that such safety nets may be removed or remain unerected for the time and to the extent necessary for the access or persons or the movement of materials or other purposes of the work, but shall be replaced or erected as soon as practicable.

(2) Where the use of a safety belt is required pursuant to paragraph (1) the contractor shall provide each workman employed on the site with a suitable safety belt.

(3) Where is a safety belt is provided under this regulation the contractor shall also provide a suitable and sufficient anchorage and suitable fittings therefor; and each such safety belt, anchorage and fitting shall be of such a design and so constructed as to prevent serious injury in the event of a fall to any person using it.

(4) The contractor shall ensure that all safety nets, safety belts and other equipment provided pursuant to this regulation are properly maintained.

(5) The contractor shall take all reasonable steps to ensure that no workman remains on any dangerous place on the construction site without wearing a safety belt provided to the workman in pursuance of this regulation."

54. The fluorescent light trough was hanging 2.5 m or 8.2 ft above ground and there was no permanent structure to allow safe access to or egress from it. There was a scaffold platform but it was 1.9 m or 6.6 ft above the fluorescent light trough, and hence not a suitable platform to reach the light trough. No suitable ladder or movable working platform or other means of support was provided to the plaintiff. The light trough itself was only 1 ft wide and itself was not a suitable platform. Although a safety belt was provided, there was suitable anchorage point on top of the fluorescent light trough. Hence, I find that the 3rd defendant was in breach of the statutory duty as mentioned above.

55. Initially, counsel for the plaintiff submitted that the 1st defendant was also under the statutory duty to provide and maintain a safe system of work, safe plant, adequate instructions and supervision, etc. under section 6A of the Factories and Industrial Undertaking Ordinance (Cap.59). However, in view of the provision of section 19 of Cap.59 that the Ordinance does not confer a right of action in civil proceedings in respect of a failure to comply with, inter alia, section 6A, the argument was not pursued vigorously.

56. The 1st defendant was the principal contractor in overall control of the site and had sent safety officers to ensure the safety of the workers on the site. No doubt it was also an occupier of the site. I also find it in breach of the common duty of care towards the plaintiff.

Contributory negligence of the plaintiff

57. Counsel for the 1st defendant submitted that that fact that the plaintiff was an experienced worker, the acrobatic fit of climbing onto the fluorescent light trough was an act of serious disregard of danger. It was submitted that the plaintiff had contributed to the accident to the extent of 75 to 80%.

58. Counsel referred to Storey v. National Coal Board [1983] 1 CR 156. There, the plaintiff was an experienced mineworker. He rode on the conveyor against clear warning and prohibition of the defendant of the danger of such a practice sanctioned by a deduction of wages. The plaintiff was found to be 75% contributory negligent.

59. In Uddin v. Associated Portland Cement Manufacturers, Ltd [1965] 2 AER 213, the plaintiff was a machinery attendant in a cement grading and packing factory. He wanted to catch a pigeon sitting behind the revolving shaft of a machine. He ascended a vertical steel ladder to a platform where he knew he was not authorised to be. He stood on the top of a machine with a horizontal revolving shaft with projecting studs on it. The shaft was a dangerous part of machinery and was not fenced in contravention of the Factories Act, 1937. While the plaintiff was leaning over the shaft in an attempt to catch the pigeon, his clothing was caught in the revolving shaft and he was injured. The judge held that the employer was in breach of statutory duty, but the plaintiff's act was an incredible folly and apportioned 4/5 responsibility for the accident to the plaintiff. Such apportionment of the trial judge was affirmed by the Court of Appeal.

60. I find that the plaintiff was in serious disregard of danger in climbing on top of the fluorescent light trough, and is liable for contributory negligence. However, the cases referred to by counsel for the 1st defendant are not directly relevant as those workers have disobeyed express prohibitions of the employers.

61. I have found the 1st defendant in breach of statutory duty. I keep in mind that the standard of contributory negligence is less exacting where the defendant is in breach of statutory duty (Li Tak Foon & Anr v. Chan Chu t/a Chan Chu Kee, HCPI No.468 of 1995, unreported, 13 December 1995 per Woo J, citing Li Man Yuen v. Li Chung I t/a VF Electric Manufacturing Co., Civ. App. No.91 of 1991, [1991] HKLY 429). In the premises, I hold that the plaintiff is responsible for 25% contributory negligence.

Contribution

62. The 1st defendant has served notices for contribution against the 2nd and 3rd defendants. Neither 2nd nor the 3rd defendants has done so. For the avoidance of ambiguity, I shall make apportionment in respect of all 3 defendants.

63. Under section 3(1) of the Civil Liability (Contribution) Ordinance (Cap.377) :

"Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

64. The 3rd defendant was the direct employer of the plaintiff. The presence and nature of work of the plaintiff ought to have been known by him. Although he was the smallest of the three contractors, he was the scaffolding contractor. His trade was concerned with working at height, which was the very subject matter of the accident. It cannot be said that he is such a small contractor who must take his lead on safety from the main contractor as in In re Lau Chuen Fat, deceased [1994] 2 HKLR 173. Hence, I find that the proper apportionment of liability for the 3rd defendant is 50%.

65. The 1st defendant was the principal contractor with primary responsibility under the Regulations. On the other hand, the 2nd defendant's site foreman actually gave work instructions to the plaintiff prior to the accident, and was in immediate control of the plaintiff. Hence, I apportion their respective liability as 25% each.

II. QUANTUM

The 2nd and 3rd defendants, being unrepresented, adopted the submissions and agreements of the 1st defendant on the issue of quantum.

Medical and surveillance evidence

67. The plaintiff sustained the following injuries as a result of the accident :

(a) Subtrochanteric fracture of left femur;

(b) Fracture of left zygoma;

(c) Bilateral fracture of calcaneum; and

(d) Fracture of the L-1 vertebra.

68. The plaintiff still complained the following symptoms at present :

(a) Pain over left face, disturbing his sleep;

(b) Low back pain after prolonged sitting or standing more than 30 minutes or lifting more than 20 to 30 lbs. of weight, acerbated by change of weather;

(c) Numbness and pain over left hip when walking for over 30 minutes;

(d) Pain in both heels, more severe on the left side.

(e) The plaintiff also complained pain and discomfort when engaging in sexual intercourse with his wife, resulting in a reduction from two to three times a week before the accident to about once a month. That has caused some strain in the marital relationship.

69. The plaintiff was examined by Dr Lau Hoi Kuen, expert appointed by his solicitor, on 5 December 1988 and 1 December 2001; and Dr Lee Po Chin, expert appointed by the 1st defendant, on 24 February 2000.

70. The medical evidence are not in serious dispute. The agreed points are :

(a) The fracture of the left femur had been treated well with intramedullary nail fixation. The fracture has united solidly. The nail was removed in September 1999. There was slight limitation in the left hip movement, but not being a significant disabling factor. He should have little problem squatting. Mild pain would persist.

(b) There was a fracture of the L-1 vertebra (Dr Lau measured the reduction of the anterior cortical height of 50%, and Dr Lee measured it as 30%). It was inadvisable for the plaintiff to lift heavy objects.

(c) There was permanent damage of the subtalar joints and deformity of the calcaneum of both ankles. There was a 50% reduction for inversion and eversion of both ankles (Dr Lee found 100% reduction for eversion in the right ankle).

(e) The thigh girth was 1 cm less for the left leg.

(f) Both experts agreed that the plaintiff could not return to the work of a scaffolding worker as the deformity of the ankles caused a severe reduction of the balancing ability.

(g) Both experts agreed that the plaintiff could take up sedentary jobs as from November 1998 (except for September and October 1999 where he was granted sick leave for the removal of the intramedullary nail). Dr Lau's suggested list was : assembly line factory worker, office assistant or cashier. Dr Lee's list was: construction site warehouse assistant, manufacturer worker or shop keeper.

71. The disputed points are :

(a) In February 2000, Dr Lee observed minimal muscle spasm at the low back, and agreed there was then some residual pain. In December 2001, Dr Lau detected no more muscle spasm, but still considered the residual low back pain was of a significant degree and to persist. Dr Lee said in the absence of muscle spasm, there was no objective sign to confirm residual back pain.

(b) After viewing the surveillance tapes, Dr Lee further suggested at the trial that the plaintiff could also take up the work as a waiter in a restaurant.

72. The 2nd defendant instructed a private investigator to make surveillance tapes of the plaintiff's activities in the months of August, September and October 2000.

73. On 25 August 2000, the plaintiff was seen walking from his home in Tai Po to the local shopping centre and back for about 20 minutes. He was seen to have a white bandage on his left heel. The plaintiff said he needed to put it on when he felt pain in the heel. He could walk up and down staircases without holding onto handrails. He carried two plastic back full of groceries with either one or both hands. I observed him to be walking quite leisurely without resting or showing signs of discomfort.

74. On 22 September 2000, the plaintiff was seen walking from his home to the local hardware store. There was no more bandage at the left heel and he was walking faster. He was seen walking up the escalator when it was ascending. The plaintiff agreed that he carried two bags of building materials, weighing 5 catties and 3 catties each. He was seen squatting to tie the bags. The plaintiff said he had no problem of squatting up to 10 odd minutes. Later in the evening, the plaintiff was seen walking for long distances and visiting different shops and buildings in the local areas. Occasionally, he was seen touching his low back, which he said was thumbing his back to relieve the pain. The journey lasted about 1 hour 20 minutes.

75. On 14 October 2000, the plaintiff was seen walking to a hardware store and purchased two boxes of ceramic tiles, admittedly each weighing 10n odd lbs. On the way back home, he was pulling a trolley carrying the two boxes for about 20 minutes.

76. The plaintiff said that in 1999, he made three attempts to seek employment :

(a) He registered with the Labour Department and a scaffolding job was offered to him which he turned down;

(b) He looked for job as a shop keeper but the job was filled; and

(c) He looked for job as a waiter in a café but the job was filled.

77. I find the plaintiff can no longer return to the job as a scaffolding worker. As at November 1998, he could return to a sedentary job. He may not be able to handle the job of office assistant or job of some clerical skills as his educational level is low. On the other hand, one may add the job of car park attendant. At any rate, the plaintiff's job finding effort was simply inadequate. He had failed to mitigate his loss by obtaining alternative employment.

78. As for the future, I accept Dr Lee's opinion that in addition, the plaintiff is able to handle the job as a waiter in a café. This is supported by both the observation of the plaintiff's movements and activities in the surveillance tapes, as well as the plaintiff's own evidence that he did try to find a job as a waiter. I accept that he may have some residual pain in the heels and low back upon a change in weather, but that should not materially affect the job as a waiter.

Special Damages

(1) Expenses

79. (a) Medical Expenses

(i) The sum of $5,536 was agreed for the hospital and out-patient expenses incurred in Hong Kong.

(ii) The plaintiff also claims $71,820 in respect of bone setting and related X-ray expenses incurred in Hong Kong and Shenzhen for the period after his discharge from hospital until early 1998. There are no receipts in respect of the expenses incurred in Shenzhen. The plaintiff said that the effect of the bone setting was only marginal. The defendants agreed to pay $6,720 for this head. In the absence of expert evidence on the point, I find that the plaintiff's claim is extravagant and I shall only allow the sum of $10,000.

(iii) The plaintiff further claims $1,900 in respect of herbal dressings at the Foshan Chinese Medicine Hospital in the Mainland. No receipts have been produced. I shall also disallow them.

(b) Travelling Expenses

(i) The sum of $3,480 has been agreed in respect of travelling expenses incurred by the plaintiff and his wife in Hong Kong.

(ii) The plaintiff further claims $5,620 for travelling expenses in respect of bone setting and herbalist consultation in the Mainland. The defendants offered $500. I shall allow $1,000.

(c) Tonic Food

The sum of $1,500 claim has been agreed.

(2) Pre-trial Loss of Earnings

80. The parties agreed to the median monthly wage of $18,200 as the multiplicand for the pre-trial period. The plaintiff did not work during the period. I have found that the plaintiff has failed to mitigate his loss for finding a sedentary job as from November 1998. The reasonable figure for the average income for such jobs was $6,000. There should be a notional deduction from the multiplicand save for the sick leave pay for September and October 1999. The pre-trial loss of earnings are :

(a)	January 1996 to October 1998 $18,200 x 34 months	$618,800
(b)	November 1998 to November 2001 (except for September and October 1999) ($18,200 - $6,000) x 35 months	$427,000
(c)	September to October 1999 $18,200 x 2 months	$36,400
		$1,082,200
		========

General Damages

(1) Pain and Suffering and Loss of Amenity

81. The plaintiff submitted that injuries falls into the substantial injury category and claimed $600,000. The defendant submitted that the appropriate category should be serious injury and suggested the sum of $500,000.

82. The plaintiff referred to Ho Ah Look v. Nam Kin Scaffolding Limited & Anor, HCPI No.156 of 1999, unreported, 28 May 1999, per Nguyen J [1999] 2 HKLRD F15. There, the plaintiff was a male, 61 at the time of the accident and 67 at the time of trial. He fell 4.6 m to the ground and suffered laceration to the forehead, abrasion to the nasal bridge, subtrochanteric fracture of the right femur, fracture of the superior and inferior ramus of the pelvis. Operation was carried for the reduction and fixation of the right femoral fracture with intramedullary nail. Further operation was carried out to remove the intramedullary nail, debride the wound, ream the femur and to insert gentamycin beads. Mal-union resulted in his right leg which became 3 cm shorter, and the right foot in outward pointing position and a narrowing of the hip joint space. His injuries were placed within the serious injury category and the award of PSLA was $564,000.

83. I find that the plaintiff's injuries was comparable to Ho Ah Look and was of the serious category. I shall allow an award of $540,000 for PSLA.

(2) Future Loss of Earnings

84. The parties also agreed to the monthly median wage of $18,200 as the multiplicand for the future and the multiplier is agreed to be 12. I have found that to the list of sedentary jobs, one may now add the job of a waiter in a café. Counsel for the 1st defendant submitted that the average monthly wage notionally earnable should be adjusted to $8,000. Considering that the choice of sedentary jobs will still be wider than waiting, it will be reasonable to only adjust the monthly average earnable income to $7,000. Hence, the award for future loss of earnings should be :

($18,200 - $7,000) x 12 x 12 = $1,612,800.

(3) Loss of Earning Capacity

85. The parties agreed to the award of $100,000.

Summary of Award

87. The plaintiff has been awarded the sum of $935,336.20 under the Employees' Compensation Ordinance. Such a sum shall be deducted from the damages assessed by virtue of section 26 of the Employees' Compensation Ordinance.

III. INTEREST

88. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

COSTS

89. As I have found the plaintiff liable for contributory negligence, I shall hear parties as to costs.