CHAN WAI KEUNG v. LI YAU HING AND ANOTHER

HCPI 715/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 715 OF 2012

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J U D G M E N T

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1.  The plaintiff, Chan Wai Keung (“Chan”) was a plasterer. Chan encountered an accident at work on 8 October 2009 when working at a property at Kam Tin, New Territories, Hong Kong. He suffered injuries.

The employer

2.  HH Judge HC Wong in her judgment in an Employees’ Compensation case DCEC 1232/2010 handed down on 11 April 2013 (“the EC Judgment”) held, among other things, that the 1st Defendant, Li Yau Hing (“Li”) was Chan’s employer at the material time.  Li did not appear at the trial.

Chan’s evidence on the accident

3.  Chan gave evidence that he went to work for Li for the first time on 8 October 2009 at the premises. Chan had a co-worker plasterer Chan Chi Wing (“Chi Wing”).  The task of Chan and Chi Wing on that day was to plaster the internal faces of two concrete parapet walls at the front garden of a house.  The walls were about 2 metre high.  Chan and Chi Wing could not reach and plaster the upper parts of the walls from the ground.  They needed an elevated working platforms.

4.  Li did not provide any working platform for the use of Chan and Chi Wing.  There was also no safety belt or independent lifeline for anchorage of a safety belt.  Chan and Chi Wing made some trestle scaffolds for their own use so that they could plaster the upper parts of the walls.  They made the trestle scaffolds by placing a wooden plank on the 2nd rungs of two straddling wooden ladders standing at the two ends of the plank.  The wooden planks they used were old ones as there was no new plank at the site.  The planks when placed on the ladders were at about 600 mm above the ground.

5.  They finished making the trestle scaffolds in the morning.  They then worked on the internal face of a parapet wall after lunch.  Chan plastered the right side of the wall and Chi Wing worked on another side. 

6.  At around 1:30 p.m. to 2:00 p.m., Chan was working on a wooden plank of a trestle scaffold with a hand float containing wet plasters in his left hand and a trowel in his right hand. He moved the trowel from one side to another along the wall to do the plaster-filling.  Suddenly the wooded plank broke into two pieces and Chan fell and landed on the ground with his feet.  As a result, his right foot sustained a sprain and crushed onto the rocks and debris scattered on the ground.  His right leg was very painful.  Chi Wing and the owner of the premises then took him to the A & E Department of the North Hospital for treatment.

7.  Chan’s evidence is straightforward.  It is compatible with the medical evidence.  I accept his evidence as true.

The duty of care and statutory duties

8.  Chan’s amended statement of claim pleaded that the plastering work for the internal walls of the parapet walls carried out by him at the site was a construction work within the meaning of the Construction Sites (Safety) Regulations, Cap. 59I (“CSSR”). 

9.  Chan also pleaded that the site was:

(a)  an industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance, Cap. 59 (“F&IUO”) and the Factories and Industrial Undertakings Regulations, Cap. 59A (“F&IUR”);

(b)  Chan’s workplace within the meaning of the Occupational Safety and Health Ordinance, Cap. 509 (“OS&HO”) and Occupational Safety and Health Regulation, Cap. 509A (“OS&HR”); and

(c)  a construction site within the meaning of the CSSR.

10.  Since Li was Chan’s employer, Chan pleaded that Li was also:

(a)  the “contractor” and “proprietor” of the site within the meaning of F&IUO and the F&IUR;

(b)  the “contractor” responsible for the site and having direct control over the construction work in the site within the meaning of CSSR;

(c)  the occupier of the site within the meaning of OS&HO and OS&HR; and

(d)  Chan’s employer within the meaning of the OS&HO and the OS&HR.

11.  In the premises, Li had to comply with the statutory duties under the F&IUO, F&IUR, CSSR, OS&HO and OS&HR to ensure the safety and health of the plaintiff.

12.  Since Li had the care and control of the site, he was also the occupier of the site within the meaning of the Occupiers Liability Ordinance Cap. 314 (“OLO”).  He thus owed Chan the “common duty of care” under section 3 of OLO.

13.  Furthermore, there was an expressed or alternatively implied term of the contract of employment made between Chan and Li that Li had to provide Chan with a safe place and system of work at all times.

14.  In a nutshell, Li owed Chan the following duties: -

(a)  To provide and maintain a safe place of work for Chan;

(b)  To provide Chan with adequate and proper training, instructions and supervisions as to how he should perform his work safely;

(c)  Not to expose Chan to any risk of injury of which Li, his servants or agents knew or ought to have known;

(d)  To provide Chan with suitable and appropriate equipment, tools and facilities which would assist Chan to conduct his work safely and to ensure that these equipment, tools and facilities were in good condition and maintenance;

(e)  To provide Chan with the necessary safety and protective clothing and equipment, i.e. safety shoes, safety harness, safety belt, and other facilities for body protection; and

(f)  To provide Chan with suitable and safe means of support for him to work safely at height.

Decision on liability

15.  From Chan’s evidence on how the accident happened, it is clear that the accident was caused by Li’s negligence in failing to provide Chan with a suitable working platform or other suitable means of support that would have allowed Chan to have access to the upper part of the internal walls of the parapet walls to do the plastering work.  The trestle scaffold was not a safe means of support for Chan to carry out plastering work since the wooden planks did not have adequate strength to support Chan and was liable to break when Chan was standing and working on it.  Li has thus breached the employment contract with Chan.

16.  Furthermore, there was no preventive or precautionary arrangement or safety belt and independent lifeline or fixed anchorage point for anchoring a safety belt to support, secure or prevent Chan from falling. This is another breach of the employment contract and the statutory duties mentioned below.

17.  Li has also breached sections 6A(2)(a) and (b) of the F&IUO and section 6(1) of the OS&HO which require the provision and maintenance by the proprietor of construction works of a system of work that is, so far as is reasonably practicable, safe and without risks to health.  He has failed to provide a safe system of work because of the absence of proper working platforms and safety belt to prevent Chan from falling off the platform.

18.  Chan also pleaded that Li had breached a number of other statutory duties.  But having found that Li had breached the employment contract by his negligence and that he had breached the statutory duties abovementioned, I do not think it necessary to go into those other breaches.

19.  In the premises, I hold that Li is liable to compensate Chan for the injuries and the damages flowing therefrom. 

Contributory negligence

20.  Since Li has not pleaded contributory negligence in his defence, I do not think it necessary to consider it.

Injuries, treatment, present problems and prognosis

21.  X-ray examination conducted at the North Hospital showed that Chan had a fracture of the right calcaneum. He was admitted into the Orthopaedic Ward for further medical treatment.  He was operated with internal fixation of the fracture 8 days later on 16 October 2009 and discharged on 20 October 2009.  He was given sick leave from the date of accident to 18 October 2010 or for a year and 10 days.

22.  Chan has produced an expert report by Dr Wong See Hoi on him and dated 18 October 2011.  It shows that after discharge from hospital, Chan had to attend regular follow-ups at the Outpatient Clinic of Department of Orthopaedics and Traumatology of the hospital from 27.10.2009 to 11 April 2016.  His next follow up at the clinic will be on 10 April 2017.  He also had 14 sessions of occupational physiotherapy from 12 February to 4 June 2010 and physiotherapy on dates that he could not recall. 

23.  An occupational therapy report dated 15 December 2010 gave the final assessment on the Chan’s condition as “able to walk unaided and perform full squat.”

24.  There is also a physiotherapy report dated 30 December 2010 which assessed Chan on 2 July 2010 and stated:

“Tenderness over lateral right calf

Range of right ankle movement full;

  Walked with elbow crutches non-weight bearing independently on level ground and stairs after physiotherapy.”

25.  Chan had also suffered a fall while walking in the street in July 2010 resulting in a fracture of the right mid-tibia.  That fracture healed without the need of surgery or plastic of Paris treatment. 

26.  Chan complained to Dr Wong at the examination on 12 October 2011 that he had continuous attacks of right heel pain aggravated by prolonged walking and standing for over an hour.  He could not climb up and down bamboo scaffolds.  He could not squat and had to adjust by kneeling on right knee causing right knee pain.  He also had right heel pain when lifting heavy object and only managed to lift objects of less than 20 catties.  He took analgesics on alternate day.  He also had muscle cramp of right lower limb at night about once a week.  But he had no problem in shoe ware and wore normal shoes. 

27.  Dr Wong in his physical examination of Chan also observed that Chan could sit and stand normally.  He walked with a limping gait.  He managed tip-toes walking and heels walking in a limping gait.  He also managed single leg standing but was less steady on the right side.  He could do half squatting and did not require support to stand up.

28.  Dr Wong also observed mild widening of right calcaneum, “L” shape scar over the lateral aspect of the right heel at 4 cm x 7 cm well healed and pigmented, tenderness along scar, medial aspect and planar, implant palpable, limitation in right ankle eversion and 50% decrease in sensation to touch over lateral aspect of right ankle.  Dr Wong also observed muscle atrophy of right calf at 1 cm comparing with 36.6 cm on the left calf and Dr Wong regarded that as due to pain.

29.  Dr Wong diagnosed Chan’s injuries as fracture right calcaneum and concluded that such was compatible with the mechanism of injury given by Chan. Dr Wong further opined that the treatment given by the hospital to Chan was standard and appropriate.  Dr Wong’s prognosis was that Chan had reached maximum medical improvement.

30.  Dr Wong further opined that calcaneum is an important weight bearing bone that bears most of the body weight.  It forms the subtalar joint with talus bone.  A good congruence of this joint is important for walking especially when walking on uneven grounds.  It is common for pain to persist around the calcaneum following a fracture.  In particular, movement of the subtalar joint, e.g. when walking on uneven ground, aggravates pain.

31.  Furthermore, with the Bohlar angle reduced to 0^o, Dr Wong expected Chan to have residual pain especially when walking on uneven grounds, climbing up and down frequently, lifting and carrying heavy objects, squatting, prolonged walking and prolonged standing.  The distortion of the subtalar joint will also accelerate the level of subtalar degeneration which affects the ambulatory state of the patient.  Chan should not perform strenuous duties with frequent heavy lifting and carrying as well as climbing up and down ladders and scaffolds to avoid deterioration of his right ankle which might affect his ambulation necessitating salvage by surgery.

Particulars of Chan

32.  Chan’s personal particulars are as follows:

1.	Date of Birth	21.03.1952
2.	Date of Accident	08.10.2009
3.	Date of Trial	09.02.2017
4.	Pre-trial length	88 months
5.	Age	57 at the time of accident, 64 at present
6.	Dominant Hand	Right-hand dominant

PSLA

33.  Chan sustained fracture right calcaneum on 8 October 2009.  He had a surgery of internal fixation of the fracture 8 days later on 16 October 2009 and was discharged on 20 October 2009.  He was given sick leave to 18 October 2010 or for a year and 10 days.  He still sustains the residual complaints and disabilities abovementioned.  I agree that his injuries and disability somewhat affect his general activities and enjoyment of life. However, I consider his case as below that of serious injury described in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

34.  Mr Lau, counsel for Chan referred to Lau Kin Wah v Lam Shu Kan formerly trading as Kuen Kee Kwok Wing Transportation & Stevedores Company,HCPI 1208/1998 (Decided by Seagroatt J on 28/2/2000).  The plaintiff suffered a fracture of the right calcaneum.  He had a surgery of open reduction, fixation by plate and screws, and bone graft.  He was hospitalised for about six weeks.  He had physiotherapy after discharge from hospital.  He suffered some loss of strength in the right limb when descending stairs and slopes.  He had difficulty in squatting.  He was given sick leave for about 2 years.  He could not pursue his pre-accident leisure activities.  He suffered cramp seizures if he swam. He could not play basketball which he used to do once or twice a week nor football. The court accepted that he could not return to his pre-accident occupation.  In the light of his persisting pain and stiffness, with degenerative change, the court found that he might have to have fusion of the subtalar joint which might result in the relief of pain but at the cost of no movement in the joint and it was likely to take place.  PSLA was awarded at HK$375,000.00.

35.  The next case relied on by Mr Lau is Tse Hing Wan v Choy Yuen Keung & Others, HCPI 889/1998 (Decided by Chung J on 24/1/2000).  The plaintiff aged 55 at the date of accident and 59 at date of trial, a construction worker, working on top of a steel mound-structure in a construction site.  He slipped, lost balance and fell down about 3 meters to the floor, resulting in the fracture of his left os calcis.  He underwent open reduction and internal fixation operation.  He was hospitalised for 12 days and then discharged for out-patient physiotherapy and follow-up treatment.  He was granted sick leave for around 2 years and attended 45 sessions of physiotherapy.  X-ray examination afterwards revealed subtalar joint post-traumatic degeneration and mild irregularity in the calcaneo-cuboid joint, flattening of the base of the calcaneus.  Loss of range of motion of the left ankle was observed and complete recovery was not expected.  The plaintiff’s expert observed that he walked with a very mild limp on the left hand side, muscle wasting of the left thigh and calf indicating disuse atrophy.  He was also diagnosed to have a possible post-traumatic subtalar joint arthritis and a possible contusion of the heel flat pad.  The court found that the plaintiff was not physically fit to resume his pre-accident employment during his sick-leave period, but he could have worked in his pre-accident job.  He would have been able to stay in the job of a construction site worker until he was 62 and then became only capable of “ground level” construction site jobs, such as delivery hand, messenger, hawker, restaurant waiter or kitchen worker.  PSLA was awarded at HK$350,000.00.

36.  The third case relied on Mr Lau is Wong Woon Hei v Dickson Construction Co. Ltd. & Others, HCPI 521/2000 (Decided by Deputy High Court Judge Muttrie on 3/7/2001).  The plaintiff, 47 years old at date of trial and a painter, stood on a platform made of a plank standing on two ladders in order to paint the ceiling of a corridor within Central Market but fell from the platform. He suffered a fracture of left calcaneum.  He had a surgery by open reduction, bone grafting and internal fixation and was hospitalized for around 24 days.  He was re-admitted for removal of the surgical implant from his left ankle.  He received physiotherapy and out-patient treatment thereafter.  He was granted sick leave for around 2½ years.  He still complained of pain and swelling in the left ankle and there would be 20% chance of his suffering degenerative arthritis in the subtalar joint which would require further surgery.  Loss of earning capacity was assessed at 20%.  The court concluded that he could not return to his work as a painter and would in future be restricted to working as a watchman, shop assistant or car park attendant because he could suffer sharp pain on inversion or eversion of the foot. In allowing the award of the PSLA agreed between the parties, the court also considered the authorities and acceptedthis.  PSLA was awarded at HK$400,000.00(agreed between the parties).

37.  The last case on PSLA relied on by Mr Lau is Wong Wing Chow v Lee Wing Hang Patrick & Others, HCPI 244/2002 (Decided by Deputy High Court Judge To on 24/10/2003).  The plaintiff, a construction site worker, suffered a displaced intra-articular fracture of the calcaneum of his right foot.  He had an operation involving open reduction and internal fixation and was hospitalized for 18 days.  The court found that he exaggerated his condition and suffered residual pain.  He was able to walk unaided and could squat for two minutes and sustained carrying objects of 24 pounds for 60 feet.  PSLA was awarded at HK$200,000.00.

38.  Mr Lau submitted that Chan’s case is similar to the cases of Lau Kin Wahand Tse Hing Wan and the amount to compensate Chan’s PSLA should be about $350,000.  I consider that all four cases referred to by Mr Lau are more serious than Chan’s case.  However, those cases were decided in early 2000 to late 2003.  I should have regard to the effect of inflation since then.  I think it is fair and just to give the PSLA compensation at $350,000.

Can Chan resume work as a plasterer?

39.  HH Judge HC Wong said in §53 of the EC Judgment:

“Mr Chan also admitted he had returned to work as a plasterer after the expiry of sick leave. On the basis that he had only started work as a security guard 10 days before the trial, and he may return to work as a plasterer when his health condition improves, the Hong Kong Paper Mill formula is not applicable.”

40.  The above statement was a conjecture by the learned Judge of what Chan could do if his health improved.  The learned Judge also did not assess any compensation for Chan under s. 9(1)(b) of the Employees’ Compensation Ordinance, Cap. 282 because she did not regard that Chan had suffered any injury that was not specified in the First Schedule of the ordinance for which such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury.  Reading §53 as a whole including the statement of conjecture, I do not think that the learned Judge was making a finding of fact that would have the effect of res judicata that would prevent me from finding that Chan suffered some loss of earning capacity to the extent that he cannot resume work as a plasterer.   

41.  I also accept Chan’s evidence that after the expiry of sick leave, he had resumed work as a plasterer but doing light duties only and was paid about 2/3 of the normal pay of a plastered.  He remained in that job for some nine to ten months and could not thereafter find any light duty plasterer job.  He had tried to look for a job of casual worker in a restaurant.  But he was not employed as he had to walk with a walking stick.  He had also tried to obtain a job as a security guard but without success.  I accept Chan’s evidence and find that he cannot resume working as a plasterer as a result of the accident.

Pre-trial Loss of Earnings

42.  HH Judge HC Wong found in the EC Judgment that Chan was earning a monthly sum of HK$16,000.00 in 2009 (HK$800.00 per day for 20 days per month) (see: § 52 of the EC Judgment).

43.  Chan’s pre-trial loss should be divided into two periods; namely the sick leave period and the period from the expiry of sick leave to the trial.  

44.  The sick leave period was from 8 October 2009 to 18 October 2010.  The data of the Census & Statistics Department (p. 384) shows that the daily wages of a plasterer increased from about $860 to about $885 per day during this period.  The average figure is $872.50 per day.  The amount of loss during the sick leave period of one year and 10 days on a 20 working day per month basis is at:

$872.50 x 20 x 12 ¹⁰/₃₁ = $215,029.

45.  For the remaining pre-trial period from 19/10/2010 to 9/2/2017 or 75 months & 22 days, the data of the Census & Statistics Department (pp. 384 and 402) shows that the daily wages of a plasterer increased from about $885 to about $1,350 per day during this period.  The average is $1,117.50 per day or 22,350 per month on a 20 working day per month basis.  Mr Lau accepts that Chan could have worked as a security guard earning an average of $10,000 per month during this period.  The monthly loss is at $12,350. The amount of loss during this period is:

$12,350 x 75 ²²/₂₈ = $935,954.

46.  The total pre-trial loss of earnings is at:

$215,029 + $935,954 = $1,150,983.

Loss of future earning

47.  Chan is aged 64.  Mr Lau suggests and I agree that the multiplier should be 1.  The future loss is at:

($1,350 x 20 - $10,000) x 12 = $204,000.

Loss of MPF

48.  Effective from 1^st December 2000, employees are entitled to an MPF contribution at 5% of his monthly earnings by their employers.  In the present case, the MPF entitlement for Chan is 5% of the pre-trial loss and the future loss of earnings.  The sum is:

($1,150,983 + $204,000.00) x 5% = $67,750.

Loss of earning capacity

49.  Mr Lau referred to Dr Wong’s opinion that Chan is expected to suffer from considerable inconvenience on prolonged walking, especially when walking on uneven grounds, squatting and ascending and descending stairs or slopes.  His endurance on heavy lifting and carrying heavy objects is also affected.  Hence, it is reasonably expected that he would have reduced working efficiency and capacity and would have a substantial risk of losing his job in the future.  It would also place him at a disadvantage in the labour market.  Hence, Mr Lau proposes an award under this head at around $60,000.

50.  I do not think I can award such sum to Chan just for his potential future loss bearing in mind that the multiplier is just 1. However, the pre-trial loss has been assessed on the basis that Chan was in continuous employment throughout the period from the expiry of sick leave.  Since Chan was suffering from the disadvantage in the labour market since the expiry of his sick leave, some compensation for loss of earning capacity for this period should be given.  I therefore allow him compensation under this heading at $60,000.

Future medical expenses & loss of future earnings on sick leave for undergoing recommended operation

51.  Dr Wong recommended the removal of the implant in his right calcaneum which could reduce the irritation over the surrounding area of the implant.  The operation would costs about $30,000 to $40,000 and would require 2-3 weeks for recovery.  Mr Lau proposes that the loss of wages be compensated at $7,500.  I agree that this is a reasonable claim totalling $47,500.

Special damages and expenses

52.  Chan also claims the following special damages and expenses which are either supported by documents or are reasonable and I allow them: 

a)	Medical Expenses	$3,720.00
b)	Traveling Expense	$2,967.70
c)	Crutch	$350.00
d)	Tonic Food	$5,000.00
		$12,037.70

EC Compensation

53.  Mr Lau confirmed that up to now Chan has not received any EC compensation from Li or any organisation and I make no deduction for that.

Quantum summary

54.  The summary of the quantum of damages is as follows:

1)	PSLA	$350,000
2)	Pre-trial Loss of Earnings	$1,150,983
3)	Future Loss of Earnings	$204,000
4)	Loss of MPF	$67,750
5)	Loss of Earning Capacity	$60,000
6)	Future Medical Expenses	$47,500
7)	Other Special Damages	$12,037.70
Total:		$1,892,270.70

Interest

55.  Interest is awarded at 2% per annum for general damages for PSLA from the date of writ until judgment.  Interest on pre-trial loss of earnings and special damages will be awarded at half the judgment rate from the date of accident to the date of judgment.

Costs order nisi

56.  I also make a costs order nisi that Li do pay Chan the costs of this action to be taxed.