KWAN WING SANG v. CHI CHIU ENGINEERING CO LTD

IN THE SUPREME COURT OF HONG KONG

CASE NO. P.I. 1045 OF 1995

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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1. The plaintiff is a driver and delivery worker employed by Yin Hing Construction Ltd.

2. On 14/5/1991 accompanied by an assistant he drove a truck and delivered a load of pipes to the defendant's premises. As instructed they unloaded the pipes on the pavement outside.

3. The plaintiff then looked around for someone to sign the receipt. He was told "to go up to the office". The defendant's office is a converted cockloft on the

1st floor reached by a set of stairs.

4. The plaintiff went up, got his receipt, and turned to go down again. At the top of the stairs, as he was about to descend, he says he thought he heard someone call him. He is not sure what happened, he thinks he had one leg outstretched towards the top step when he was distracted and half turned to look behind him. He lost his footing and tumbled to the bottom of the staircase.

5. After he fell the plaintiff sat stunned for a few moments whilst he composed himself. No-one of the defendant company appeared to notice he had fallen. His colleague from the lorry eventually came looking for him and helped him up.

THE STAIRS

6. There are photographs of these, with dimensions. The angle of the stairs is very steep. The steps have open treads. Their steepness and narrowness is such that they are in the nature of a fixed step-ladder enclosed by two walls. There is a secure handrail on one side wall. When one ascends one's feet and toes naturally step inside below the tread above. There is some slip resistant rubber material on the edges of the treads which appears in the photographs to be in a worn condition.

7. The descent of the stairs is the problem. Their extreme steepness leaves only some two inches of each tread protruding beyond the one above on which to place one's heels. It is very easy to lose one's footing as the plaintiff did.

8. No doubt conscious of this the defendant painted a warning notice at the top of the staircase "Staircase is Narrow - Be Careful". The use of the word "narrow" is curious - I would have thought "steep" more appropriate - but in any event it is a warning notice. The plaintiff says he did not notice it.

9. The defendant argues that the staircase was intended for staff only and the plaintiff therefore was a trespasser. I do not accept this. It may have been the intention that the staircase was for staff but the reality is that others from time to time would use it. There were several staff employed upstairs in the office who would have occasional outside visitors. The local postman for example, who gave evidence for the defence, found it necessary to go up occasionally when no one on the ground floor received the mail. Certainly it was necessary to pull open a spring loaded door to gain access to the staircase but this door was never locked.

10. I accept the plaintiff was told to go up and someone gestured him to the door where he was to go. In those circumstances he was not a trespasser.

LIABILITY

11. If one misses ones footing at the top of normal stairs the usual consequence is that one sits down clumsily on the spot.

12. But these were no ordinary stairs. They were exceptionally steep. Having missed his footing it is not surprising to me that the plaintiff tumbled all the way down to the bottom.

13. Despite the warning notice I consider in all the circumstances these steep stairs were in an unsafe condition for which the defendant must be liable.

14. I also consider the plaintiff was contributorily negligent. He had just ascended those stairs and had an opportunity to see how steep they were. On descending he failed to ensure he had a sure footing and a firm group upon the handrail.

15. I assess the contributory negligence at 50%.

THE MEDICAL EVIDENCE

16. When he recovered from the fall the plaintiff could not have been too distressed because he drove his truck back to his place of employment. He did tell his employer he had fallen. Then he had lunch. In the afternoon he decided to go to Tang Shui Kin Hospital and he walked there as it was not far from where he worked.

17. At the Hospital an X-ray showed a chip fracture of a vertebrae and he was admitted for a week. This was followed by out-patient physiotherapy and more intensive treatment at Margaret Trench Rehabilitation Centre.

18. The X-rays and MRI scans show that he has degenerative changes of the spine which would have caused him trouble eventually anyway. He now complains of persistent back pain and pain in the legs, that he is unable to sit or stand in the same position for long periods. Both doctors agree upon the degenerative changes, but Dr Lau called by the plaintiff places greater emphasis upon the accident as a triggering or causative factor than does Dr Tsoi called by the defence. I have observed the plaintiff closely and do not think he was malingering or exaggerating. He was in no hurry to obtain medical advice at all at the outset.

19. I am satisfied he now has genuine back and leg pain which affects his daily work and life to some extent and this was caused by the fall.

DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITIES

20. The plaintiff has suffered inconvenience and pain and can expect periodic exacerbation of this. He can look forward only to temporary relief.

21. I assess this at just below the "serious injury" category in Chan Pui Ki and award $300,000.

LOSS OF EARNINGS

22. Tables of the plaintiff's pre-accident and post-accident earnings are agreed. These are supplied from the employer's records and appear to be precise because they particularise figures down to cents.

23. Beyond knowing that he was paid $200 per day at the time of the accident, subsequently increased to $220 per day and recently further increased to $240, the plaintiff himself had only the slightest idea how the "extras" were computed.

24. These extras were a "bonus" - generally $400 but more or less at discretion - and a "commission" which was calculated on a formula the plaintiff could not explain either except to say it depended upon the firm's sales and the number of days he worked.

25. The plaintiff still holds the same position he had before the accident but now rarely drives vehicles because of his back discomfit and his emloyer is flexible about that.

26. He is still paid at the same rate and according to the same formulas as before the accident but he does not earn as much because he takes more days off to rest.

27. That is occasioned by his back pain but the situation is aggravated by reason of the fact that he now lives at Tin Shui Wai which is some 1 1/2 hours from his work. Previously he lived in Wanchai close nearby. Whereas previously he might have had half a day off work at a time to rest now he takes a full day, partly because he cannot face the long journey to and from work simply to work for half a day.

28. As to why he moved his residence so far from his work after the accident when he did I accept his explanation that he had a once in a life-time opportunity to be allotted a government unit and little opportunity to select the area, and a government unit had numerous other advantages.

CALCULATIONS

29. The plaintiff earned $5,033 per month over the 11 months immediately prior to the accident. Assuming an increase of 10% per annum his earnings would now be $8,916 and his average earnings to date would be $6,975.

Loss of earnings

14/5/91 - 28/2/93

$ 6,975 x 21.5 months	=	$ 149,963
Less payments received		$ 70,599
Balance		$ 79,364

1/3/93 to 30/6/97

$( 6,975 - 6,769) x 52 months	=	$ 10,712
Total pre-trial loss		$ 90,076

30. The plaintiff is now 37 and for post trial loss I adopt a mulitiplier of 14 . That leads to the calculation -

$( 8,916 - 8,439) x 12 x 14

=

$ 80,136

LOSS OF EARNING CAPACITY

31. Although he is still employed in the same post by his sympathetic employer the medical evidence is that the plaintiff is unable to carry heavy weights or drive for long periods. He is therefore at a disadvantage in the labour market should he lose his present job.

32. Although there is no suggestion of that at present he is only 37 and there is no guarantee his employer will continue to employ him until retirement. For loss of earning capacity I award $60,000.

SUMMARY

P. S.L.A.	$300,000
Pre-trial loss of earnings	90,076
Post-trial loss of earnings	80,136
Loss of earning capacity	60,000
Special damages (agreed)	20,949
Total	$551,161

33. The appropriate adjustment of course has to be made for the plaintiff's contributory negligence.

34. Interest awarded at 2% p.a. from date of writ on the PSLA award and at 5.75% p.a. on pre-trial damages from the date of the accident.

35. The plaintiff must give credit for amounts received as Employees' Compensation which I am told total $113,942.

36. There will be an order nisi for costs to the plaintiff with certificate for counsel. Liberty to apply.