GURUNG RUDRA BAHADUR v. WILL PLAN CONSTRUCTION CO LTD AND ANOTHER

HCPI 239/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 239 OF 2014

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JUDGMENT

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1.  This is a personal injuries action. The Plaintiff claims for injuries, loss and damage resulting from a work-related accident on 1 September 2011 at a construction site at No 59, Hing Yip Terrace, Pai Tau Village, Shatin, New Territories (“the Site”).

2.  It is common ground that, at the material time, the 2^nd Defendant was the principal contractor of the slope maintenance work at the Site.  The 2^nd Defendant sub-contracted the said work to the 1^st Defendant and the Plaintiff was a worker employed by the 1^st Defendant at the time of the accident.

3.  It is the Plaintiff’s case that he fell down from a slope at the Site (“the Slope”) when he was cutting down the trees that had grown on the Slope.  In performing the work, the Plaintiff had worn a full-body safety harness which was attached to the lifeline by a safety lanyard. However, because the safety equipments were old and defective, the ring of the harness or the snap hook connecting the harness to the lanyard disconnected when his footing on the Slope slipped, and as a result he fell down from the Slope suffering injury.  On the other hand, the Defendants deny that the safety equipments were defective, and they also dispute that the accident happened in the way as described by the Plaintiff.

Evidence adduced at the trial

4.  Only two witnesses testify at the trial: the Plaintiff and the Defendants’ witness Mr Lai Chi Man (“Mr Lai”).

5.  I first start with the evidence of the Plaintiff.  He is a Nepalese who came to Hong Kong in 1997.  He had worked as a construction labourer ever since.  He had received training relating to construction work including the use of safety harness and lifeline.  He admits that he was an experienced slope maintenance worker.

6.  He started to work for the 1^st Defendant in January 2009.  He had been assigned to work at different projects, and he started to work at the Site on 29 August 2011.  When he first arrived at the Site, the foreman Mr Lai instructed him to cut down all the trees on the Slope.  He then fastened white nylon ropes to the bases of 4 trees at the top of the Slope as lifelines.  Because of the steepness of the Slope, he used the lifelines to support his weight in order to work at the Slope, and he used the lifelines to abseil down the Slope in order to move to work in different parts of the Slope.

7.  On the day of the accident, 1 September 2011, he was cutting down the trees on the Slope.  Access was made with a metal ladder which was up the centre of the Slope. To access either side of the Slope, the Plaintiff had to wear a safety harness which was attached by a lanyard to the nylon rope lifeline strung across the Slope and tied to the tree trunk.  The lanyard was attached to the lifeline by a rope grab (a fall arrester) and to the back of the safety harness by a locking snap hook.  The harness and the hooks were quite old and rusty.  The surface of the Slope was wet and uneven with rocks, debris, trees and stumps.  The Plaintiff suddenly slipped and the locking snap hook came away from the harness and he fell and rolled down the Slope a distance of about 11 metres.  After the fall, the Plaintiff was unconscious. He was later taken to hospital for treatment.  

8.  At the trial, the Plaintiff indicates in a photograph with a “X” showing the place from where he fell onto the bottom of the Slope (“Location X”).  As shown in the photograph, that place was in the very steep part of the Slope.  According to the Plaintiff, the Slope was in excess of 60 degrees.  There was no way to walk around the Slope because it was so steep.  To work at that part of the Slope, the Plaintiff could only climb up the Slope and abseil down with the use of the lifelines and the other safety equipments.

9.  According to the medical report prepared by the treating doctor at Prince of Wales Hospital, Dr Tso Chi Yin (“Dr Tso”), the Plaintiff told him that he was attacked by wild bees and as a result he fell from the Slope.  The Plaintiff denies that he had ever mentioned such matter to the doctor or Mr Lai.  He was in a semi-conscious state after the fall.  The Plaintiff has very little understanding of English or Cantonese and he cannot even maintain simple conversations in either language.  He denies that he had spoken directly to Dr Tso after he was admitted to hospital.

10.  I then turn to the evidence of Mr Lai.  He was a foreman employed by the 2^nd Defendant responsible for supervising the slope maintenance work at the Site.  According to Mr Lai, he had known the Plaintiff and had worked together with him in different slope maintenance projects for quite some time, and the Plaintiff was an experienced slope maintenance worker who had a good knowledge of the details of the works involved.  He had always communicated with the Plaintiff in Cantonese.

11.  About one week before the alleged accident, Mr Lai went to the Site for an inspection.  He did not find any beehive near the Site.  He had instructed the Plaintiff to use knife or axe to clear the weeds and the loose tree branches at the Slope.  The Plaintiff was not supposed to cut the trees.  After clearing the weeds and the loose branches, the Defendants would erect a scaffold at the Slope for the carrying out of the slope maintenance work, including cutting down the trees at the Slope.

12.  On 29 August 2011, he gave instructions to the Plaintiff relating to the safety issues and the preparatory works he had to perform at the Site.  Mr Lai had also provided all the necessary tools and safety equipments to the Plaintiff for his work, including the safety harness, the fall arrester, the safety lanyard and the lifelines.  The 1^st Defendant had provided safety seminars and training to the Plaintiff as to how to use the safety equipments, and the Plaintiff had also received the necessary training himself and obtained the relevant worker card.  There were 4 to 5 lifelines attached to the trees at the Site, and Mr Lai had instructed the Plaintiff to attach the safety harness securely onto the lifelines.  He had also inspected the safety equipments two days before the alleged accident and found that there was no defect in these equipments.

13.  From time to time, Mr Lai would inspect the progress of the work and whether the Plaintiff had used the safety equipments properly.  Mr Lai had allowed the Plaintiff to work alone to carry out the preparatory works for the slope maintenance work because the Plaintiff was an experienced worker.  Further, as the Plaintiff could speak better Cantonese as compared with the other Nepalese workers, he was chosen for the preparatory work because he was able to understand the instructions given to him and Mr Lai could always check the progress of the work by speaking with him over the telephone. 

14.  Mr Lai was not at the Site at the time of the alleged accident and so he does not know how the accident occurred.  When he arrived at the Site shortly after the accident, he saw the Plaintiff sitting on the bottom of the Slope receiving treatment, and he did not notice any damage in the safety harness or other safety equipments.  When he enquired with the Plaintiff about the occurrence of the accident, the Plaintiff told him that he was attacked by a group of bees.  As he was frightened, he loosened the fall arrester and as a result he fell down the Slope.

15.  Mr Lai also testifies that when he arrived at the Site, the Plaintiff was not sitting in the area below Location X.   In fact, that part of the slope was very steep.  Because of the steepness, the Plaintiff was not supposed to do any work in that part of the Slope.  The Slope was actually about 70 metres in width and the photographs only show about one-third of the area of the Slope.  Other parts of the Slope were not that steep and the Plaintiff would have been able to work there without using the lifelines to support his weight.  As shown in one of the photographs, the Plaintiff could use the drain at one end to get up the Slope.  There was actually a relatively flat area like a terrace at the upper part of the Slope and the Plaintiff was only supposed to work at that particular area carrying out the preparatory works.

16.  Mr Lai maintains that the Plaintiff was not supposed to work at Location X.  At that location, the worker could not stand properly on the Slope and would have to rely on the safety harness attached to the lifelines to support his weight.  However, all the trained workers including the Plaintiff should have known that they should not rely on the lifelines to support their weight to carry out the works at the Slope.  The function of such safety equipments was to prevent the workers from falling in case they lost their footholds.  They were not supposed to be used to support the weight of the workers in working at the Slope.  According to Mr Lai, it was clear to the Plaintiff that he should not work at Location X and the cutting of the trees in that part of the Slope should have waited for the erection of the scaffold.

Analysis of the evidence  

17.  Having carefully considered the evidence in this case, I reject the Plaintiff’s evidence for the following reasons.

18.  First, I do not accept that the accident occurred in the way as described by the Plaintiff.  If the Plaintiff did fall from Location X, there was no way that the Plaintiff could have a secure foothold when he worked at that part of the Slope.  He had to rely on the lifeline to support his weight.  Furthermore, as described by the Plaintiff himself, he had to use the lifeline to abseil down in order to move around different places at the Slope.  However, it should have been clear to the Plaintiff himself that he should not perform the work in such dangerous manner. The lifeline was not supposed to support the Plaintiff’s weight whilst he worked at the Slope.  As mentioned above, the function of the lifeline and the safety harness was to prevent the fall of the Plaintiff in case that he lost his foothold.  That is also the reason why the fall arrester and the hooks were not designed for the Plaintiff to abseil down the lifeline.  If the Defendants required the Plaintiff to work in such manner, he should have raised objection to such dangerous way of doing his work, or at the very least, he should have made such protest after the accident.  Yet none was made in the present case.

19.  According to Mr Lai, the Plaintiff was not supposed to work at Location X.  The Plaintiff was only required to carry out some preparatory works to facilitate the erection of the scaffold, and the cutting of the trees and the removal of debris at Location X could have waited for the erection of the scaffold.  In my judgment, this makes much more sense and so it was unlikely that the Plaintiff was working at Location X at the time of the accident.

20.  Secondly, the Plaintiff’s evidence is contradicted by the contemporaneous record made by the treating doctor shortly after the accident.  According to the record made by Dr Tso at 1 pm on the day of the accident, the Plaintiff was “chased by a group of bees at work”, and that was why the Plaintiff fell from the Slope.

21.  The Plaintiff denies having told anyone about such matter.  If that was the case, how did Dr Tso obtain such information? Obviously, the treating doctor was an independent professional and so I have no reason to doubt the accuracy of his record.  The only possible explanation is that someone might have made up a story and provided such false information to the treating doctor.  The only person who remotely might have done so would be Mr Lai.  However, Mr Lai used to enjoy a good working relationship with the Plaintiff before the accident, and I do not accept that Mr Lai is the type of person who would fabricate evidence against his former co-worker just for the purpose of advancing the interest of his employer in this dispute.  Further even according to the Plaintiff’s own testimony, Mr Lai was not present at the hospital at 1 pm when such record was made, and so it was unlikely Mr Lai provided such information to the treating doctor.

22.  One should also note that Dr Tso made such record together with the other personal data about the Plaintiff such as his past health condition and whether he is a smoker or a left-handed or right-handed person.  It was most unlikely that Mr Lai also provided such information to the treating doctor, and the only logical inference is that all such information was provided by the Plaintiff himself.  Hence, just like what he told Mr Lai, I find that the Plaintiff had told the treating doctor that he was attacked by bees shortly before the accident.

23.  In order to support his case that he did not provide such account to the treating doctor, the Plaintiff has kept on telling the court that he was unwell and unconscious at least most of the time after the accident.  Further, he has very little understanding of Cantonese or English, and he cannot maintain simple conversations with others in either of these languages.

24.  However, the record made in the nursing station showed that the Plaintiff was “conscious and alert” when he was admitted to the hospital at around 12:30 pm on the day of the accident.  Obviously, that does not sit well with the Plaintiff’s evidence.

25.  Further, the Plaintiff is evasive about his ability to communicate in either English or Cantonese. The Plaintiff was one of the more experienced slope maintenance workers, and the Defendants had to give instructions to him from time to time.  In particular, he was the only person working at the Site at the time of the accident.  One of the ways for Mr Lai to check the progress of the preparatory works was for him to talk with the Plaintiff over the telephone.  If the Plaintiff could not even maintain simple conversations in either language, I doubt very much whether the Defendants or Mr Lai would have allowed him to work at the Site alone, because the Plaintiff did not even understand what he had to do at the Site.

26.  According to the medical record dated 7 September 2011 contained in the Progress Sheet, the Plaintiff “speaks and understands English”.  Further as mentioned above, the medical record made on the day of the accident contained a lot of information about the past health condition and personal data of the Plaintiff.  If he cannot communicate in simple English or Cantonese, I wonder how the treating doctor could have obtained all such information.  Again, there is no reason for me to doubt the accuracy of these records made by the treating doctor about the Plaintiff.

27.  In my judgment, the Plaintiff has not been frank with the court about his ability to communicate in either English or Cantonese. The whole point in doing so is that he seeks to avoid the fact that he had been giving conflicting accounts about the occurrence of the accident.  Under such circumstances, it is very difficult for the court to know when the Plaintiff was telling the truth, and so it would be dangerous for the court to rely on any version of events given by him about the occurrence of the accident.

28.  Thirdly, one of the key facts in support of the Plaintiff’s case is that the safety equipments were old and defective at the time of the accident, and that was why the hook in the lanyard came off from the safety harness causing the fall.  If the accident did in fact occur in such manner, it would be very difficult for me to understand why the Plaintiff had not mentioned this important fact to the police, Mr Lai or the treating doctor on the day of the accident.  If he had done so, I am sure that there would have been some follow-up investigation.

29.  The Plaintiff maintains that he was unwell and unconscious after the fall.  However, the Plaintiff is able to recall most of the events after the accident.  If he is able to do so, I have serious doubt as to why he did not tell any persons about the defective safety equipments on the day of the accident.  Further, the treating doctor was able to obtain a lot of information about the Plaintiff himself, and so I do not accept that he was so unwell on that day to the extent that he could not tell anyone about the faulty equipments.  In my judgment, the Plaintiff’s omission to mention such important fact casts serious doubt on the credibility of his evidence.

30.  On the other hand, I find Mr Lai to be an honest and truthful witness.  His evidence has remained unshaken despite the vigorous cross-examination by the Plaintiff’s counsel.  His evidence, in particular about the version of events given by the Plaintiff to him about the occurrence of the accident (i.e. the attack by bees), is collaborated by the contemporaneous record made by the treating doctor, and so I accept Mr Lai’s evidence as the truth.

31.  Mr Hingorani, counsel for the Plaintiff, submits that the accident could have occurred at Location X.  As the Plaintiff was given instruction to carry out the clearing work on the Slope from “top to bottom and from left to right”, the work should have covered every part of the Slope including Location X.  Further, Mr Lai’s evidence about the clearing work at the terrace is not believable.   First, that area was a small one and it would be incredible that the Plaintiff would have required 3 days to carry out the work there.  Second, the Defendants should have produced some photographs showing the location of the terrace.  Further, Mr Hingorani submits that if Mr Lai, as claimed by him, had taken photographs about the lanyard, the safety harness and the fall arrester, the Defendants should have produced the same to the court.  In fact, the Defendants ought to have produced the very harness and lanyard the Plaintiff used on the day of the accident.  Finally, he submits that the Plaintiff could not have been attacked by bees at the time of the accident.  First, there was no medical finding of any bites by bees.  Second, according to the Plaintiff, it would be impossible to disconnect the lanyard from the fall arrester while there is weight or tension on the lanyard, and so he could not have detached the hook at the arrester when he was attacked by the bees at Location X.

32.  I do not find that these arguments can advance the Plaintiff’s case any further.  According to the evidence of Mr Lai, of which I fully accept, the Plaintiff was an experienced slope maintenance worker and he should have known about the details of the work procedures.  Some of the works had to wait until the erection of the scaffold.  One thing should have been clear to the Plaintiff: the lanyard and the lifeline were not supposed to support the weight of the Plaintiff for him to carry out the work at the Slope.  That was simply too dangerous, and I wonder why the Plaintiff would have accepted such assignment without any protest.  Hence, I do not accept the Plaintiff’s evidence that he actually fell down from Location X.

33.  There is also no serious dispute that the photographs produced by the Plaintiff do not show the whole width of the Slope. The Plaintiff has not put to Mr Lai specifically about the time that would be needed to complete the clearing work at the terrace, and so Mr Lai does not have the opportunity of addressing this particular issue.  I also do not accept that the absence of supporting photographs undermines the credibility of the defence case.  It must be borne in mind that the Defendants have no idea as to how the accident occurred, and so one should not criticise the Defendants for not taking photographs of the terrace.  Further, it is common ground that the Plaintiff did not make any complaint relating to the alleged defects in the safety equipments on the day of the accident and there has been no follow-up investigation carried out by any authorities.  In such case, I would not be surprised that the Defendants have not paid any attention as to the whereabouts of the safety equipments actually used by the Plaintiff and the related photographs. Finally, in view of the conflicting accounts given by the Plaintiff, it is still uncertain as to the exact location from where the Plaintiff fell from the Slope and how the accident actually occurred.  Hence, the Plaintiff’s evidence about the impossibility of detaching the hook with weight on the lanyard and the absence of bee bites cannot take the Plaintiff’s case any further.

34.  There is no dispute that the Plaintiff fell on the day of the accident.  But since I reject the evidence of the Plaintiff, the court is not certain as to how the accident actually occurred.  The accident could have happened in a lot of ways without the negligence on the part of the Defendants.

35.  Mr Hingorani relies on Poon Hau Kei v Hsin Ching Construction Co Ltd[1] and argues that even if the Plaintiff fell down because of the attack by the bees, which he says was the alternative scenario, the Defendants are still liable for the accident.

36.  In my judgment, there is no room for the court to find liability against the Defendants based on the alleged alternative scenario. First, as the Plaintiff has been giving conflicting accounts about the occurrence of the accident, the court is not certain that the Plaintiff had in fact been attacked by bees at the time of the accident.  Further, unlike the facts in Poon Hau Kei, the Defendants do not know the case that they have to meet under the alleged alternative scenario.  According to the Defendants, they do not know how the accident occurred.  Even if the Plaintiff were in fact attacked by the bees, there is nothing in the pleading to show how the Defendants would be liable under such circumstances.  All the possible arguments and evidence relating to the alternative scenario have not been canvassed at the trial, and so it would be grossly unfair on the Defendants if the Plaintiff is permitted to run such pleaded case at the trial.  Hence, the principles in Poon Hau Kei are not applicable here and there is no room for the court to find liability against the Defendants based on any alternative scenario.

37.  For the above reasons, the Plaintiff has failed to prove his case on negligence or breach of any statutory duties against the Defendants and I therefore dismiss the Plaintiff’s claim against them.

Quantum

38.  I will also give my ruling on quantum.  In case that this case is going elsewhere and a contrary view is taken about the liability issue, my ruling on quantum may save the trouble of conducting another hearing on the assessment of damages.

39.  The Plaintiff was born in 1967.  He is married with 2 children.  The family is living in Hong Kong.

40.  It is common ground that the Plaintiff suffered a fracture of the right humerus.  However, I would make the following observations about the Plaintiff’s evidence on quantum.

41.  First, the Plaintiff told the experts engaged by the parties (“the Experts”) that he is right-handed.  However, according to record made by Dr Tso on 1 September 2011, the Plaintiff is left-handed.  In other words, the injury was actually to the Plaintiff’s non-dominant hand. Such conflict in the evidence has remained unresolved.

42.  Second, the Plaintiff complained in his witness statement that he cannot lift heavy weights, and yet he had not made such complaint in the earlier medical examination by the Experts.  This is an important complaint because it affects the working ability of the Plaintiff. The Plaintiff maintains that he had mentioned such complaint to the Experts, but had he done so, I find it surprising that the Experts had not included such complaint in their joint report.

43.  According to the medical records made by the doctors at the public hospital, the Plaintiff’s recovery was prompt and effective. On 9 September 2011, the Plaintiffs only complained of “mild [pain] upon movement of arm”.  On 28 September 2011, there was only “mild stiffness at right shoulder”.  During the joint examination, the Experts found no muscle wasting or spasm.  They agree that the fracture has “well healed with no residual tenderness”.  They also agree that the shoulder pain and stiffness are due to the frozen shoulder, which is probably the result of the operation, i.e. not as a result of any structural damage or permanent injury to the surrounding tissue. Even the Plaintiff’s Expert accepts that the post surgical capsulitis may improve with further mobilization.

44.  Both Experts agree that the Plaintiff’s residual symptoms are mild.  Insofar as they affect the working ability of the Plaintiff, it seems that the main complaint is the stiffness of the right shoulder.  However, the Defendants’ Expert observed that the range of motion of the right shoulder on discharge from hospital was better than that found in the joint examination.  It is difficult to explain such deterioration and so he takes the view that that the Plaintiff has exaggerated his symptoms in the joint examination.  Together with the other observations I have made about the Plaintiff’s evidence relating to the liability issue, there is certainly some truth in such observation.  I therefore find that the Plaintiff has exaggerated his symptoms, in particular the complaint about the frozen shoulder.

45.  After considering the cases referred to me by the parties, in particular the cases of Lai Wing Sun v High Link Technology Ltd & Ors[2] and Limbu Jas Maya v HK Scafframe System Ltd[3], I assess the quantum for pain, suffering and loss of amenities in the sum of $150,000.

46.  I then turn to the claim for loss of earnings. In ascertaining the monthly income of the Plaintiff at the time of the accident, I agree with the Defendants’ counsel, Mr Sakhrani, that the court should take the average figure for the past 12 months rather than the Plaintiff’s income for the month immediately preceding the accident.  As the Plaintiff’s income would fluctuate from month to month, it would be more accurate to adopt the average income in assessing the Plaintiff’s loss of earnings.  There is no serious dispute between the parties that the average monthly income at the time of the accident was $12,034.17.

47.  As mentioned above, the Plaintiff has exaggerated his permanent symptoms.  Since the Plaintiff only took the first easiest job, the Plaintiff has simply failed to discharge the burden of proving that he cannot cope with better paying work.  He has not shown that he is only suited to work as a security guard.  Because of his failure to mitigate, the court can only proceed on the basis that the Plaintiff can resume his pre-accident work.  That is also the opinion of the Defendants’ Expert.

48.  The Experts agree that the sick leave given up to 31 October 2012 is reasonable.  The Plaintiff made no attempt to find work until he got the job of a security guard in July 2013.  Assuming that he should have taken, say 2 months, to find work, he should have found job by 1 January 2013.  The quantum for loss of earnings can therefore be assessed as follows: $12,034.17 x 105% x 16 months = $202,174.

49.  As the Plaintiff has failed to discharge the burden of proving that he cannot resume his pre-accident employment, I disallow any claim for future earnings.  However, in view of some mild residual symptoms which may still improve in the future, the Defendants accept that the Plaintiff is entitled to have an award of loss of earning capacity in place of a loss of future earnings award.  In this regard, I agree that the sum of $72,000, which is roughly 6 months of wages, is a reasonable sum for such award and I therefore so assess.

50.  The Plaintiff claims the sums of $3,000 as travelling expenses, $9,508 as medical expenses and $5,000 as tonic food expenses.  In the absence of any receipts to support the claim for these expenses, I only award a convention sum of $8,000 for all these expenses.

51.  In respect of the claim for future medical expenses to remove the implants, both Experts agree that the surgery is optional.  The Plaintiff has not given evidence that he intends to have the surgery to remove the implants, and so there is no evidential basis for the claim.  Further, there is no basis for claiming the costs of surgery in the private sector when he has all along received treatments and his records are all kept in the public sector.  The Plaintiff has not explained why if he were to have surgery it should be in the private sector.  Hence I disallow the claim for future medical expenses.

52.  There should be interest on the PSLA award at the rate of 2% per annum from the date of the writ and interest on loss of earnings and other special damages at 4% (half of the judgment rate) from the date of the accident to the date of the receipt of the employees’ compensation award.  However, credit must be given to the sum of $233,765 received by the Plaintiff as employees’ compensation award.

Conclusion

53.  Since I find against the Plaintiff on the issue of liability, I dismiss the Plaintiff’s claim.  I also make a costs order nisi that the costs of the action be to the Defendants and the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations, which shall be made absolute 14 days after the handing down of this Judgment.