HO WAI SANG v. FOK KAI AND ANOTHER

HCPI 1330/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1330 OF 1999

----------------------

-----------------------

---------------------

J U D G M E N T

---------------------

1. This claim is brought by the plaintiff for damages as a result of personal injuries sustained by him in an accident which the plaintiff says occurred on the early morning of 28 November 1996 at the construction site in the course of the plaintiff's work there. The 1st defendant is sued as the employer of the plaintiff and the 2nd defendant as the main contractor at the site.

2. In so far as liability is concerned, the defence primarily is that the accident alleged by the plaintiff did not happen at all and that the plaintiff did not even attend the construction site for work on the 28 November 1996, alternatively the accident did not happen in the way alleged by the plaintiff.

The plaintiff's evidence

3. The plaintiff gave evidence that he was employed as a welding worker by the 1st defendant since 1 May 1996. When the accident happened on 28 November 1996 he had been working for the 1st defendant for about six months. In that time he had worked at two different construction sites for the 1st defendant.

4. The construction site at which this accident happened was situated in Jubilee Street in Central. When he knocked off work the evening before the accident, namely 27 November 1996, he was told by his supervisor that he was required to finish the welding work which he was doing the following morning before a fire service inspection which was scheduled to take place at 10:30 a.m. the next morning. As a result of these instructions, he together with a co-worker, Ah Fai, returned to the construction site the following morning at between 7:15 a.m. and 7:20 a.m. in order to complete the welding work which they had been doing on the 7th floor of the building being constructed.

5. According to the plaintiff, he had been working for no more than three minutes when suddenly a piece of L-shaped metal pipe fell from above him hitting the top of the safety helmet which he was wearing. The force of this piece of falling metal knocked the plaintiff, who had been squatting on the floor, forward so that his forehead hit against the metal frame which he was welding at the time. After his forehead hit the metal frame, the plaintiff bounced backwards and sat on the floor. According to the plaintiff he then lost consciousness and fainted for some 10 minutes. When he came to, he was assisted by Ah Fai to get up on his feet and then downstairs to the office where a report was made to the safety officer as well as a phone call to his immediate supervisor Ah Kan informing him of the accident.

6. After the report was made at the site office, the plaintiff's evidence was that he then left the site by himself and took the Mass Transit Railway from Central and returned to his home at Shek Kip Mei for the purpose of changing into some clean clothes before making his way to the Kwong Wah Hospital for the purpose of receiving medical treatment in respect of the injuries sustained during the accident. The reason given by the plaintiff for the need to go home to change his clothes before going to the Kwong Wah Hospital was because his work clothes had been soiled with mud and sand when he worked at the basement car park at the site two days before the accident.

7. Under cross-examination the plaintiff was confronted with an Accident Report. When questioned on this report, the plaintiff only admitted that he had written out on this report his name, his identity card number, the contact person in his family, his address and his occupation. Initially the plaintiff had denied that the date and time written on this report was written by him. The time of the accident stated on the report was 9:30 a.m. and date was 28 November 1996. When it was pointed out to the plaintiff by cross-examining counsel that the ink on which the date of the accident was written appeared to be the same ink that was used to fill in those information which the plaintiff admitted to be in his handwriting, and the fact that the Chinese character for "nine" was written in an identical but unusual way both in respect of the date and time of the accident as well as in the other information supplied by the plaintiff, only then that the plaintiff admit that the date and time of the accident was also written by him in the report. The plaintiff then went on to explain that when he was filling out this report, the safety officer of the 2nd defendant told him that if the time of the accident was put down as being before 7:00 a.m. then there was a possibility that the defendant company may be prosecuted by the Labour Department and suggested to the plaintiff to put down the time of the accident to be after 9:00 a.m. That was the plaintiff's explanation as to how he came to put down the time of 9:30 a.m. as being the time of the accident.

8. Evidence was also called from the mother of the plaintiff. She gave evidence that on the morning of the 28 November 1996 the plaintiff left home before she woke up. Some time later she heard somebody opening the door of the home with a key and got up to see that it was the plaintiff returning home. She thought that the time was about nine o'clock but had not consulted the clock. She was surprised to see the plaintiff at that time of the day returning home and asked him what was the matter. According to her, the plaintiff told her that he had some trouble as his helmet was hit by a falling object at the work site resulting in him spraining his neck. When she asked him why he did not go to see a doctor, the plaintiff replied that he would be going to see a doctor after he had changed into some clean clothes. The plaintiff then began to change but as he sat down he suddenly felt such a severe pain in his neck that she got scared and dialled 999 for an ambulance. The ambulance came shortly and took the plaintiff to the Kwong Wah Hospital. She went along with the plaintiff in the ambulance and stayed with him in hospital until about 9:00 p.m. that night.

9. She further gave evidence that she had never phoned the supervisor of the plaintiff at any time that day. However after she got home from the hospital she received a phone call at home from a person calling himself Ah Kan giving also his surname as Lee. This person Ah Kan enquired about the plaintiff and she told him that the plaintiff was now in hospital. She did not bother any further with the matter of the phone call.

The defendants' evidence

10. The defendants called Lee Yau Kan, the foreman and supervisor of the 1st defendant as witness. He gave evidence that he was the supervisor of the site at Queen's Road and Jubilee Street in 1996 and that the plaintiff was one of the workers working under him at the time. He said that on the morning of the 28 November 1996, at some time before 9 a.m. he was having morning tea at a nearby restaurant just before starting work when he received a phone call from the plaintiff's mother informing him that the plaintiff was having a headache and had to consult a doctor thus asking for sick leave from work for the day. He did not find that unusual and so as far as he was concerned the plaintiff had not gone to work on the 28 November.

11. Mr Lee further denied that on the evening of the previous day, namely 27 November, he had instructed the plaintiff to come to work on the site earlier than the normal time. He also gave evidence that there was no requirement for a worker entering the site to register with the guard on duty at the site entrance.

12. Under cross-examination Mr Lee admitted that he had compiled a report which he signed and dated 31 December 1996 which was a report prepared as a result of the accident/injury report made out by the plaintiff pursuant to the alleged accident, in which Mr Lee had put down the names of himself and another worker to be the witnesses to the alleged accident reported by the plaintiff. In this report the date of the "accident" was stated to be 28 November 1996. When questioned on this report prepared by him, Mr Lee acknowledged that he had not witnessed the accident complained of by the plaintiff. He also acknowledged that at the time he compiled this report he knew very well that the other worker had not witnessed the accident either. In fact Mr Lee went as far as to say that initially he had approached a worker by the name of Wong Hung Fai, a co-worker of the plaintiff doing welding works with the plaintiff in the transformer room on the 7th floor of the building, to be the witness to the alleged accident of the plaintiff. However Wong refused because he had not witnessed such an accident. It was in those circumstances that he approached the other worker who agreed for his name to be put in this report by Mr Lee as a witness to the alleged accident.

13. Furthermore Mr Lee said under cross-examination that the plaintiff had approached him asking for wage receipts to be made out by the 1st defendant to be submitted to the 2nd defendant purporting to show that the plaintiff was being paid more than he actually was by the 1st defendant.

Assessment of the evidence

14. Where the issue in dispute between the parties is as wide as it is in this case, namely whether or not the accident actually happened and/or whether the plaintiff was in fact at work on the day in question, the credibility of the witnesses must be of critical importance in resolving that dispute and determining this case.

15. In so far as the plaintiff is concerned, he has lost a great deal of his credibility as a result of the cross-examination in which he in effect admitted that the evidence he had given to this court in chief was not only untrue, but effectively a deliberate lie, when he initially denied that he had written the time of the accident on the Accident Report. Moreover, even with the explanation given by him as to why he wrote the time of 9:30 a.m. as being the time of the accident on the Accident Report that explanation causes me to have serious doubts as to its veracity because the plaintiff says that he only did that because he was told by the safety officer that if the time of the accident was put down as before 7:00 a.m.

16. There was a possibility that the 1st defendant may be prosecuted by the Labour Department. However, on the plaintiff's own version given in court, this accident took place at some time after 7:15 a.m. so that there was no valid reason for the plaintiff not to have put down the correct time of the accident in the Accident Report without fearing that the 1st defendant may be prosecuted.

17. Quite apart from that, there are other areas of his evidence which causes me to have serious doubts as to his truthfulness as a witness. They are as follows :

(a) When this accident occurred and the plaintiff hit his forehead on the metal frame, he had lost consciousness for some ten minutes before he was helped down to the office of the Safety Officer on site where a report was made to the Safety Officer and yet instead of calling for an ambulance to take the plaintiff to hospital, the Safety Officer allows the plaintiff to leave the site on his own. Even more surprising is the fact that the plaintiff then decides to go home at Shek Kip Mei to change his trousers (because the trousers were dirty) and intending to go to a hospital only thereafter.

(b) In a statement dated 12 March 1998 given in Chinese by the plaintiff to Lawrence & Wong Ltd, loss adjusters, in relation to this alleged accident, the plaintiff stated that on the day in question, namely, 28 November 1996, he arrived at the construction site at 8:50 a.m., the accident happened at 9:15 a.m. and after he was helped downstairs and his boss was informed of the matter, he left the site alone for Kwong Wah Hospital.

(c) On two claim forms produced as evidence by the plaintiff in this trial, when the plaintiff submitted claims to National Mutual claiming insurance arising from this alleged accident, being Exhibit P2 and P3 which are dated 12 December 1996 and 15 July 1997 and signed by the plaintiff, it is stated in those claim forms that this accident happened at the site at about 3 p.m. on 28 November 1996.

(d) In his witness statement given to his solicitors in this case dated 3 June and signed by the plaintiff, he stated that after the accident at the site, he was helped down to the office by a colleague where he notified Ah Kan by phone and then was admitted into Kwong Wah Hospital with no mention of his returning home first. Times were not stated in this statement.

(e) In a supplemental statement to his solicitors dated 11 January 2001, the plaintiff stated that he arrived at the site at about 8:00 a.m. and that after the accident and after reporting the matter to Ah Kan by phone he went home first (arriving at home about 9:00 a.m.) to change intending to go to hospital after changing. This was the first mention by the plaintiff of going home to change.

18. In so far as the mother's evidence is concerned, having observed her in the witness box and in the way she gave evidence, she strikes me as a person who dotes on her son and was prepared to support him at all costs. One piece of evidence from her which I find somewhat surprising is her evidence relating to the phone call she received on the evening or night of 28 November after she had returned home from Kwong Wah Hospital. Her evidence was that after telling the caller that her son was still in hospital, she bothered no more with that phone call, yet over four years later, she is able to remember not only such a phone call but also that the caller told her that he was Ah Kan and his surname was Lee.

19. As for the defence witness, Lee Yau Kan, I have formed the view that of the witnesses, he has probably come closest to the truth in his evidence, but even so he is still withholding the full picture from the court in that in his evidence, he tries to distance himself from personal involvement when he admits to being asked by the plaintiff to provide or submit inflated wage receipts to the 2nd defendant by saying that this was handled by other staff in the 1st defendant's office.

20. From his admission made by him under cross-examination relating to the report compiled and signed by him and dated 31 December 1996 and which I have already dealt with above, I am left in little doubt that both the plaintiff and this witness (i.e. Lee Yau Kan) were together involved in attempting to falsely claim either insurance or employee's compensation from the 2nd defendant or their insurers by falsely claiming that such an accident had happened to the plaintiff and also by inflating his wage receipts for that purpose.

21. Lee Yau Kan, most probably with the realization that he can no longer continue this charade, has made an about turn, albeit that he still tries to distance himself from the preparation of the inflated wage receipts. In so far as his other admissions are concerned, he has no alternative but to make those admissions when confronted by the documents.

22. As for the plaintiff, he has seen fit to continue his deception even in the courtroom. I am further convinced from all the circumstances of this case and from the totality of the evidence, that the plaintiff has come forward with a story in court which is quite different from what he had stated in the Accident Report, his statement to the loss adjusters and in his claims to National Mutual where the time of the accident is concerned because at some time before the trial of this matter, the defendants were able to secure evidence (by way of a letter from the Fire Services Department dated 20 November 2000 addressed to the solicitors for the defendants and which letter was disclosed by the defendants in their supplemental list of documents dated 22 December 2000) showing that as a result of a request for ambulance made to the Fire Services Communication Centre at 8:24 a.m. on 28 November 1996, ambulance service was provided to the plaintiff's address at Shek Kip Mei with the ambulance arriving at the plaintiff's address at 8:24 a.m. and from there going to and arriving at Kwong Wah Hospital at 9:12 a.m.

23. As a result the plaintiff's supplemental witness statement given less than one month after the disclosure by the defendants of the letter from the Fire Services Department as well as his evidence given in court, particularly as to the time of the accident, was designed to cater to such evidence from the Fire Services Department relating to the times pertaining to the ambulance service provided. However, in doing so, that version necessarily came into conflict with the earlier versions of times given by the plaintiff in the Accident Report, his statement to the loss adjusters and in his two claim forms to National Mutual. It also gave rise to his incredible explanation as to why he had to return to his Shek Kip Mei home instead of going straight to the hospital from the site.

Findings of fact

24. From what I have stated above, I do not believe the plaintiff when he said he was told by Lee Yau Kan the night before to start work early the next day (i.e. 28 November 1996). I do not accept his evidence that he had gone back to the site at about 7:15 a.m. to finish off the remaining work so as to be ready for the Fire Inspection later that morning. I find as a fact that the plaintiff did not attend the site at all on the morning of 28 November 1996.

25. In making this finding I have noted that in all the various statements given by the plaintiff in which the time of this accident given conflict with each other and with the plaintiff's evidence given in court, counsel for the plaintiff had been at pains to point out that the plaintiff had been consistent in his account as to how the accident occurred. Be that as it may, once the plaintiff has brought his case on the footing that the accident, the subject matter of this claim, happened on 28 November, he has nailed his colour to the mast and once the above finding is made, the plaintiff's claim must fail.

Issue estoppel

26. In the course of the trial, the point was taken by the plaintiff the the defendants are estopped from denying that the plaintiff was at work on 28 November 1996 because in the ECC case between the same parties, the defendants had admitted that. Both parties were agreed that this point should be dealt with by me de bene esse when I deal with the overall determination of this matter. I do so now.

27. The basis of the plaintiff's submission on this point is that in paragraph 6 of the Respondents' (i.e. the present defendants) Answer in ECC Case No. 811 of 1998, it was admitted by them that the plaintiff was, at the time of the alleged accident (i.e. 28 November 1996) working at the construction site in question. That Answer was dated 12 January 1999. That ECC case was compromised by the parties by a Consent Application made on 3 August 1999 which resulted in a Consent Order on 5 August 1999.

28. The fact that the ECC claim was settled and did not fall to be determined on its merits would not, per se, prevent issue estoppel from arising because what is relied on by the plaintiff as the basis of the estoppel is the admission by the Respondents in paragraph 6 of the Answer and not a finding of fact by the tribunal.

29. However, from the facts that I have found above, in particular the fact that at one time Lee Yau Kan was colluding with the plaintiff into deceiving the 2nd defendant and/or its insurers of insurance payments or employees' compensation leads me to the conclusion that because of that deception, the 2nd defendant or its insurers may well have been misled by the Accident Report from the 1st defendant, which was in fact compiled and signed by Lee Yau Kan, into wrongly believing that the plaintiff was actually at work on 28 November 1996 which explains that admission in paragraph 6 of the Answer. Noting also that that Answer was dated 12 January 1999 and the ECC case was settled by 5 August 1999 but that the witness statement and supplemental witness statement of Lee Yau Kan filed in this present proceedings (in which he denied that the plaintiff was at work on 28 November 1996) were dated 1 September and 14 December 2000, I take the view that there are special circumstances here upon which it would be unjust for me to rule, on these peculiar facts, that the defendants are estopped in the way contended for by the plaintiff (see Keith J (as he then was) in Chak Hung v. Mo Tak Yau & anr., HCPI 797 of 1996 citing Arnold v. National Westminster Bank PLC [1991] 2 AC 93).

30. I take comfort that in so holding, the plaintiff cannot be disadvantaged in this trial since Mr Yau had conceded that even before the trial started he was fully aware from the statement of Lee Yau Kan that this was the stance of the defendants and it was on that basis that both counsels agreed for me to rule on this submission of issue estoppel de bene esse.

Conclusion

31. For the reasons given above, and as already indicated, the plaintiff's case is dismissed.

32. However, in the event that I am wrong in so finding, I shall deal briefly with the question of quantum.

Pain suffering and loss of amenities

33. On admission to Kwong Wah Hospital, the plaintiff was found to have local tenderness over the cervical spine region and the range of movement of the neck was found to be reduced on the left side due to pain. No definitive neurological deficit was detected in his arms. X-ray of the cervical spine showed no fractures. He was discharged on 2 December 1996 to be followed up at the orthopaedic outpatient department.

34. In early February a myelogram was carried out. A DSEP (to test the nervous system) was also carried on 20 March 1997. It was then confirmed that the plaintiff had a prolapsed intervertebral discs of C3/C4 and C5/C6. In early June the plaintiff agreed to having an anterior spinal fusion which was carried out on 18 June 1997. Post operative course was uneventful and the plaintiff was discharged on 3 July 1997. Sick leave was granted until 6 March 1998 when he still had some residual pain over the right iliac crest.

35. His present complaints as stated by Dr Lam Kwong Chin in his report of 21 February 2001 are as follows :

(a) Arching at left neck and shoulder region, especially during movement or poor weather. Radiating pain to the head on movement, especially with flexion;

(b) Stiffness of neck;

(c) Weakness and numbness of left upper limbs, especially at the hands. Gradually improving after operation, and subjectively better than the last interview;

(d) Residual pain at iliac crest bone donor site, but much improved in past year.

36. The plaintiff is assessed to suffer a 25% impairment of the whole person as set out in the AMA Guides.

37. Based on the above injuries and resultant disabilities I am of the view that they fall just outside the "Serious Injury" category as it is understood in the case of Lee Ting Lam. Accordingly the amount of damages awarded under this head will be $400,000.00

Loss of earnings (pre-trial)

38. There is a major dispute between the parties as to the pre-accident earnings of the plaintiff. In view of my findings already made which goes to the credibility of the plaintiff, not only in respect of liability but also on account of the inflated wage receipts, I am unable to accept the evidence of the plaintiff that his total pre-accident earnings with the 1 defendant as a welder came to $46,000 per month inclusive of overtime wages and based on a daily wage of $750. I am also not prepared to place reliance on the wage receipts produced for the same reasons.

39. On the other hand, I also do not accept the evidence of Lee Yau Kan that the plaintiff was only paid at a daily rate of $600. That evidence contradicts with an earlier witness statement of his that the plaintiff's daily wage with the 1st defendant was $700.

40. I do accept the evidence of Lau Kai Tung that in 1996 to 1997 the wage range of welding workers were between $650 to $750. In the circumstances, I will take the mean of that range to be the pre-accident daily wage of the plaintiff.

41. On the basis that in 1996 to 1997 there was a building boom and much overtime work, I assess the plaintiff's monthly wages before the accident to be $25,000 inclusive of overtime.

42. As the plaintiff was given sick leave for slightly over 15 months after the accident, the loss during the sick leave period comes to $383,250.

43. There remains a further period of just over 41 months pre-trial. Dr Lam Chin Kwong stated in his medical report dated 8 July 1999 that the plaintiff would not be fit to return to heavy manual work but could take on light to moderate work. In the circumstances, I would assess his loss of earnings for the rest of the pre-trial period to be $12,000 taking into account also that by then the boom time in the building industry had ended and the downturn in the economy had started. This gives a further loss of $499,920. The combined total comes to $883,170. From this amount I would further discount it by 8% to take account of tax (using a mean tax rate). The final figure for loss of earnings pre-trial comes to $812,516.

Other special damages

44. Medical expenses claimed in the sum of $7,930 and travelling expenses of $2,000 have been agreed and will be awarded.

45. $20,000 has been claimed for tonic food by the plaintiff. The defendants are prepared to concede only $5,000. In view of the length of time between the accident and the trial when the plaintiff is still not fully recuperated and the length of the sick leave granted, I am of the view that $10,000 would be a reasonable sum to award for tonic food.

Future loss of earnings

46. I shall use the $12,000 used to assess pre-trial loss of earnings after the sick leave period as the multiplicand.

47. The plaintiff was 37 at the time of the accident and now 42 years of age. Taking account of his age and the nature of his pre-accident job which is one requiring heavy manual labour, I shall use the multiplier of 10. This gives the amount of $1,440,000. Once again deducting that amount by 8% to take account of the tax incidence, the final figure for future loss of earnings comes to $1,324,800.

Loss of earnings capacity

48. Initially there was a claim for loss of earnings capacity, but this was not pursued at the trial of this matter and in counsel's final submission. In those circumstances, I do not propose to make any award under this head.

Interests

49. The usual interests will be awarded, namely 2% p.a. for general damages from the date of the Writ and at half judgment rate for all pre-trial damages from the date of the accident.

Summary of quantum

		$
PSLA		400,000
Loss of earnings (pre-trial)		812,516
Other special damages		19,930
Future loss of earnings		1,324,800
	Sub-total :	2,557,246
Interests on PSLA		14,667
Interests on pre-trial losses		223,111
	Total :	2,795,024
Credit for ECC payment
		516,829
	Final figure :	2,278,195

Had the plaintiff succeeded against the defendant for full liability, I would have awarded him the figure of $2,278,195.00.

Costs

In view of the fact that I had dismissed the plaintiff's claim, there will be a costs order nisi that the plaintiff pays to the defendants their costs to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.