NG KOON KI PETER v. HILTI (HONG KONG) LTD AND ANOTHER

HCPI 628/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 628 OF 2002

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J U D G M E N T

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Introduction:

1. This is an action for personal injury damages. All matters are at issue, including the liability of the defendants for the injury, whether or not the plaintiff himself contributed to the accident, and the extent of any damages. Also at issue is the contribution between the two defendants.

The employment:

2. The plaintiff (Mr Ng) had been employed by the first defendant (Hilti) since 1990. Initially he was employed in a capacity which involved the collection of accounts from the customers of Hilti. Hilti is a well-known company which provides technicians to undertake anchor testing on construction sites. In 1997, Mr Ng became an anchor testing technician and from that time on was regularly required to work on construction sites carrying out anchor testing.

3. There is no evidence that he was given any particular training for this task. There is no evidence that prior to commencing this type of work, he was given any particular training in safety. The work is work which requires the technician to go on to a building site, where a building is in the course of construction, to go out on the scaffolding, usually in high places, and there undertake tests on anchor points which have been installed on the building, in order to ensure that they meet appropriate standards. The work is accordingly dangerous work which requires the technician to go on to a construction site, an inherently dangerous place, and to work at a height, on the exterior of the building, again an inherently dangerous place of work.

4. At his own request, Mr Ng attended a one-day course on construction site safety training on 8 June 1999. As a result of attending that course, he was issued a "green card" which constituted proof of having attended the course. The evidence was that Hilti's willingness that he should attend the course and obtain a green card was born, not so much out of an altruistic wish that employee's safety should be properly taken care of, but rather that in order to enable the employee gain access to construction sites, an essential element in the performance of his work, the green card was required. A review of the matters covered in the one-day course demonstrates that it was a course which was superficially comprehensive but, having regard to the short time available to deal with each of the many topics that were covered, necessarily perfunctory in the coverage of each topic. Whilst a green card is issued, it could hardly be said that it was in any way thorough or well-grounded course in construction site safety.

5. The 2nd Defendant (Condo) was the principal contractor responsible for a construction project at the China Insurance Group Building at 141, Des Voeux Road, Central.

The accident:

6. By a written contract made in March 1999, Hilti contracted with Condo to undertake anchor testing on that site. It was a specific condition of the contract that Condo would provide a working platform for the technicians at the site.

7. On 28 July 1999, the date of the accident, Mr Ng was assigned by Hilti to carry out anchor testing work at the construction site. He worked in a team of two, at that time his partner was Mr Chow Shum-kin. They were required to carry out testing at the external wall of the building on site.

8. At the site, a double row bamboo scaffolding had been erected with transoms joining the two rows. However, no working platforms had been fixed to the transoms which were void. On that day, it had been agreed between Mr Ng and Mr Chow that the physical exercise of testing the anchor would be carried out by Mr Chow, and the recording of the data obtained from the test would be carried out by Mr Ng. To undertake this work, it was necessary for both to go out along the scaffolding. When they arrived at the site there was no working platform. When asked to provide a working platform, a Condo employee (who did not give evidence) supplied Mr Ng and Mr Chow with a wooden plank that could be laid on the transoms between the double rows of bamboo scaffolding. This was to serve as a working platform. The wooden plank was used so that Mr Chow could stand beside the anchor, carry out the test, and then advise Mr Ng of the results, which Mr Ng then recorded.

9. It appears that there were a number of anchor points on each level and it was accordingly necessary to move the wooden plank along the transoms to the next position of an anchor to carry out the next test. To do this, Mr Chow and Mr Ng were required to cling to the scaffolding while they moved the plank. They were properly provided with, and were wearing, safety belts.

10. There were Condo workers in the vicinity who could have been asked to assist in the exercise of moving the plank, but neither Mr Ng nor Mr Chow requested such assistance.

11. When a time came to move the plank, Mr Ng, instead of bending and lifting the plank with his hands, in conjunction with Mr Chow carrying out the same operation, chose first to push the plank along the transoms using his foot, and then to move it by hand. As he did so, the plank, suspended by only one transom, tilted and began to fall. In order to prevent the plank falling, Mr Ng reached down and grabbed the plank with his right hand. In so doing, he twisted his back, the weight of the heavy plank being too much. Then, because of the weight of the plank, he was unable to hold it with one hand, and he dropped the plank.

12. He continued to work until 5 pm that night and then went back to the Hilti office. There he reported the accident and the fact that his right arm was in pain, and numb. The next morning, having experienced aggravated pain and numbness in his right arm, he saw his doctor and was given two days' sick leave. He was however unable to return to work, and further sick leave was granted to him after attending the Accident and Emergency Department of the United Christian Hospital for treatment. By 31 July 1999, the pain, stiffness and numbness had spread to his back causing him difficulty in getting up in the morning. He remained on sick leave until he returned to work on 11 February 2000.

The second incident:

13. The undisputed evidence, which I accept, was that when he resumed duty on 11 February 2000 he informed a supervisor of his injury and that doctors had advised him not to undertake heavy duty. He was however, still assigned to carry out anchor testing. The next day, when undertaking an anchor test at a secondary school in Ho Man Tin, he was using a spanner to tighten a screw on scaffolding and began felt back pain. He again went to United Christian Hospital for treatment receiving physiotherapy. His back pain persisted and on 7 March 2001, he was diagnosed to have a sprained back causing a prolapse of his intervertebral disc at L4/5. By 6 September 2001, he was certified permanently unsuitable for work on construction sites.

Present condition:

14. His back pain has not recovered. When he sits or walks for more than 20 minutes, or sits up from a lying position, he feels pain over his back. Feelings of stiffness and numbness radiate from his back down his buttock to his left leg. He has weakness in his back and left lower limb.

15. He has been advised to have a further operation which, it is said by doctors, may alleviate the symptoms, with good result in over 85% of cases under competent hands. He has discussed with his family whether or not he should undertake that surgery and has elected to date not to have the surgery done. He frankly conceded in evidence that the prime reason why he has not had further surgery is fear of that surgery. That is an entirely understandable emotion. However, he makes a claim for the sum of HK$65,000.00 for the cost of that surgery saying that following the completion of this litigation, he will consider again whether or not to have the surgery.

The basis of the claim:

16. The claim is made against Hilti on the basis of common law negligence, it being alleged that his employer negligently failed to provide him with a safe and proper working platform to enable him to carry out his job at a height, that his employer failed to provide adequate training on safety measures, and failed to provide appropriate equipment. It is also alleged that the employer failed to institute any adequate system of inspection to ensure that working conditions for its employees were appropriate.

17. Statutory liability is alleged against Hilti, under the provisions of the Construction Site (Safety) Regulations, Cap 59 Sub. Leg. I, alleging a breach of Reg. 38L, and the Occupational Safety and Health Ordinance Cap 398, alleging a breach of s. 6(1) of that Ordinance by failing to provide or maintain a safe system of work.

18. The claim against Condo is a claim based upon statutory liability. First, there are allegations of breaches of the Construction Site (Safety) Regulations in relation to safe access and a safe place of work and working platforms, and second, a failure to discharge the common duty of care imposed by s. 3 Occupiers' Liability Ordinance, Cap. 314.

The liability of Hilti:

19. No evidence was called for either Defendant, other than the agreed medical evidence. I accept the evidence of the Plaintiff and his witness in its entirety.

20. The evidence established that Hilti took no steps whatsoever to train its employees who were, by the very nature of the job, required to work in extremely dangerous circumstances. The undisputed evidence was that until the safety course on 8 June 1999, the only instructions given to the employees were that "You yourself must be careful". There was no evidence that Hilti had arranged any means of inspection to ensure that proper working platforms were provided or that any safety measures at all were in place on the building sites. It is right that the contract between Hilti and Condo contained a provision requiring Condo to provide safe working platforms but it is beyond question that merely imposing a contractual requirement on the occupier of the work site is not sufficient to discharge Hilti's own obligations to its employees.

21. The safety course, whilst helpful, was barely sufficient to adequately inform an employee of the risks and dangers that he faced and the steps that he should take, or ensure were taken by an employer or the occupier of the site, to ensure safety. The course was wide ranging covering, inevitably only superficially, a vast range of the matters of safety that regularly arise on a building site. That the course was undertaken does nothing to absolve the employer from responsibility for the accident.

22. I am left in no doubt whatsoever, and indeed the contrary was hardly argued, that Hilti must carry liability both at common law and under statute, for the injury to Mr Ng.

23. Mr Sakhrani, in a superficially attractive argument, contended that as the accident did not occur, either because a worker fell off the plank, or a tool fell from the plank because of the absence of toe boards, there was no evidence that the admitted breach by Condo to provide a proper working platform was the cause of the type of accident which the legislation was passed to prevent.

24. The law is that if the type of damage is outside the scope of the legislation the injured person cannot make a claim based upon breach of statutory liability. For example, in Close v Steel Company of Wales Ltd [1962] AC 397 the House of Lords held that the duty to fence "every dangerous part of any machinery" was confined to preventing the operator himself from coming into contact with the machinery, and thus did not give rise to liability if a fragment of the machine or of the material on which it was working flew out and struck the operator. In the same way, Mr Sakhrani contends that the requirement for a safe working platform is to enable the workmen to move along the scaffold safely, as he says, they had done that morning and previously without incident, and to prevent tools from falling from a height, an event which did not occur in this case.

25. The relevant provision of the Construction Sites (Safety) Regulation in force at the time of the accident was Regulation 38L (the regulations have subsequently changed). The regulation provided at the time:

"The contractor responsible for a construction site shall ensure that-

.....

(b) every board or plank forming part of a working platform, gangway or run is-

.....

(iii) rests securely and evenly on its supports;

(c) no board or plank which forms part of a working platform, gangway or run projects beyond its end support to a distance exceeding 150 millimetres unless it is sufficiently secured to prevent tipping."

There is a specific provision that the working platform must "rest securely and evenly on its support" and be "secured to prevent tipping". The inference that I draw from those provisions is that the security of the working platform is designed not only to ensure that the platform itself does not shift thereby permitting a worker to fall from it, but that it is secured in position in order that the platform itself may not fall, either hitting someone or causing injury to an employee on the platform who endeavours to prevent falling for safety reasons. I reject Mr Sakhrani's argument.

26. Other than the causation point, it was not seriously argued that Condo was not liable. I am satisfied that liability for Mr. Ng's injuries must fall as well on Condo.

Contributory negligence:

27. Both defendants say that the plaintiff contributed to the accident himself. The evidence was that Mr. Ng called to Mr Chow to assist him in moving the plank but that Mr Chow apparently did not hear him and offered no assistance. Mr. Ng then endeavoured to move the plank, first with his foot by himself, and then by hand. It was contended that as Mr Chow was only 10 to 15 feet away, it was unbelievable that he would not hear Mr Ng's request for assistance. While the submission may have merit in the quiet and serene confines of a court room, it has no merit when regard is had both to the generally high ambient noise level in Central and the high noise level usually present on a building site. In the absence of evidence to the contrary I accept that the plaintiff called for assistance but, not having obtained that assistance because Mr. Chow did not hear him, only then elected to move the plank by himself.

28. The manoeuvring of the plank was an inherently dangerous operation. The men were working at a height and over open void spaces. The danger of the plank falling in the course of being moved was relatively obvious. Mr Ng ought not to have moved the plank himself and by electing to do so must share in the responsibility for the accident. Primary responsibility for the accident however must lie with Hilti and Condo.

29. In the circumstances, having not been provided with a proper working platform, Mr Ng was simply doing what a worker would reasonably do in the circumstances in order to get on with his duty. I have regard to the fact that Mr Ng was not a skilled worker in terms of working on bamboo scaffolding and that he had received, to all intents and purposes, no instruction, training or warnings from his employer about the risk of working at a height. In particular, I am satisfied that the one-day training course was not for the specific purpose of training workers how to deal with such a perilous situation. It was a moments inadvertence on the part of Mr Ng, that resulted in the accident. In the circumstances, I think that Mr Ng must be a 10% of the responsibility for the accident.

30. Both defendants contended that this was a case where the maxim volenti non fit injuria ought to apply. The issue was simply not arguable. There was no basis whatsoever upon which it could be said that there had been any proper, fully informed, acceptance by the plaintiff of the risk. I reject the argument.

The contribution between the defendants:

31. Mr Lin for Hilti argued that Hilti's liability should not exceed 10% of the total. Mr Sakhrani said that Hilti's share should be 70% and Condo's share should be 30%.

32. The primary obligation for a safe system of work must lie with a workman's immediate employer. If he is to send his workman to other places to undertake the work that he has contracted to do, he must have in place a proper system of inspection to ensure that working conditions for his employees are safe. He must have in place a proper system of training for his employees to ensure that they know when they are encountering unsafe working conditions. His employees should have been instructed that if the working conditions are not safe, they should decline to undertake the work until such time as working conditions are made safe. Hilti did none of these. The only step that it took was to make a contractual provision for the contract on the site to provide a safe working platform. The fact that the provision was in the contract is a clear indication that Hilti was aware of its responsibility to provide a safe working platform. The provision of the safety course was not for the purpose of instructing the man in safety but simply to obtain a green card to enable the man to have access to the sites.

33. The obligation on a head contractor to provide a safe working system on a construction site is obvious. That is particularly so, where it is clear that man will be working at a height and required to work on scaffolding outside the building. Here, there was a complete failure on the part of the head contractor to provide any working platforms whatsoever. The rudimentary platform provided by the provision of a plank came no where near meeting the contractor's proper obligation to those who would have come onto the side.

34. In all of these circumstances, I am satisfied that the two defendants should share responsibility for the accident equally between them.

The second event:

35. As I have described, Mr Ng returned to work on 11 February 2000. On 12 February 2000, while using strength to turn a spanner, he again experienced pain. I accept the evidence of Dr David Cheng that the symptoms that Mr Ng now faces are as a result of a disc prolapse. It is the opinion of Doctor Cheng that the accident on 28 July 1999, was the cause of a sprain injury with disc damage which later evolved in a disc prolapse. His opinion is that the second event on 12 February 2000 was not a second accident or incident, but no more than a triggering effect, serving to show that Mr Ng had not yet fully recovered and had returned to work too soon. I am satisfied that there was no new accident and that consequently both defendants must bear liability for Mr Ng's condition now. This is a view that is supported by Dr Lam Kwong-chin.

The need for further surgery:

36. All of the doctors have recommended that Mr Ng should undergo surgery to relief his symptoms. They are in agreement that the chance of success is high and the benefit will be an improvement in Mr. Ng's condition. The only reason he offers for not having undertaken that surgery is his fear of surgery, and emotion that I have described is entirely understandable. However, he takes the rather conflicting position, that the cause of that surgery ought to be borne by the defendants. The surgery is likely to reduce the level of pain from which Mr. Ng suffers. But I find that it will not, to any great extent, restore him to the level of mobility that he had as a fully fit man. While it will relieve his pain and suffering and loss of enjoyment of life, as I understand the medical evidence, it will not to any great extent improve his working ability.

37. Whilst I find his fear of the surgery understandable, it is not in the circumstances a reasonable position to adopt, that is particularly so when he seeks payment for the surgery. I propose to allow as part of the damages, the cost of the surgery and to assess the plaintiff on the basis that he has had that surgery undertaken and that there is an 85% chance that the surgery has been successful. Although the surgery is likely to be successful it will not completely alleviate the back problems suffered by Mr. Ng. Because of this, and because the chance of success cannot be put at 100%, I propose not to discount the damages on the basis that surgery has been completely successful but, in fixing the sum of general damages, make an allowance for the risk that the surgery may not succeed and to recognise that the surgery, even if successful, will not completely cure Mr. Ng.

PSLA

38. In the usual way counsel for all parties provided me with a wide range of comparables in relation to this aspect of damages. I do not propose to recite them all. Mr Ng has suffered from an acute prolapsed disc with nerve root impression. He has back pain when rising up from a lying position and back pain after sitting or walking for more than 20 minutes. The pain radiates down from his left buttock to his heel and associates with numbness over the back of the calf and the sole of his foot. He has weakness in his back and lower limb and will be unable to perform heavy manual work. His back pain will be triggered by frequent bending which will prevent him from climbing activities. These symptoms will be relieved to an extent by surgery but will not be completely relieved.

39. Weighing the comparables and all relevant matters, having considered the extent of the plaintiff's injuries and disabilities as disclosed by his testimony and that of the medical experts, I have concluded that the plaintiff's injuries reach the first level of severity as described in Lee Ting-lam v Leung Kam-ming [1980]HKLR 657 CA, and, allowing for the benefits of future surgery, fix general damages at the sum of $350,000.00.

Post trial loss of earnings:

40. The plaintiff's own evidence was that he believed, having regard to the extent of his disability, that he was capable of undertaking the type of job that he had been doing prior to becoming an anchor testing technician. Having regard to the medical evidence, I think that he was being overly confident. I find he will suffer some reduction in income were he to undertake employment such as an indoor office, assistant messenger or office assistant, work that I find he could undertake, for which I find he could earn an income in the order of HK$9,000 a month.

41. Mr. Ng was given sick leave until 11 December 2001. I think it is reasonable as he was looking for other employment that he should have a further four months in which he sought that other employment. I fix the pre-trial loss of earnings from 28 July 1999 to 11 April 2002, being the notional date at which he could have returned to work at $402,210.20, calculated as follows:

From 28.7.1999 to 11.2.200: 6.5 months x $12,491	$ 81,191.50
From 21.2.2000 to 11.12.2001: 21.7 months x $12,491	$271,054.70
From 12.12.2000 to 11.4.2001: 4 months x $12,491	$ 49,964.00
Total:	$402,210.20

42. His pre-trial earnings were $12,491.00 a month. I have found that he is fit to undertake work which would earn him $9,000.00 a month giving him a post-trial loss of earnings of say $3,500.00 per month. On this basis his loss of earnings for the period from when he should notionally have returned to work, 12 April 2002 to the commencement of the trial on 3 March 2004 is $3,500 x 22.7 months = $79,450. Thus the total pre-trial loss of earnings amounts to $481,660.20.

Future loss of earnings:

43. The Plaintiff was born on 2 March 1959. He was 40 years old at the time of the accident and is now 45 years old. He contends for a post-trial multiplier of 11. Hilti contends for a post-trial multiplier of 8, and Condo for 10. Weighing in all matters, including the result of future surgery, I think 10 is the appropriate multiplier. His future loss of earnings therefore are $420,000.

Future loss of earning capacity:

44. The Plaintiff claims a lump sum of $100,000.00 for future loss of earning capacity. I accept that the evidence is not such that I can say on the balance of probabilities that the plaintiff will at some future time during his working life lose his employment and that accordingly there should be no award under this head.

Loss of MPF:

45. I accept that the submission of the plaintiff that he is entitled to a sum for loss of MPF.

Pre-trial loss of MPF is calculated as follows:

$12,491 x 32.2 months x 5%	$20,110.50
$3,500 x 22.7 months x 5%	$ 3,975

Future loss of MPF:

$420,000 x 5%	$21,000
Total Loss	$45,085.51

Special damages:

46. The only dispute in respect of the special damages was in relation to travelling expenses and tonic food. Mr Ng was not able to produce any receipt in respect of these items. I am prepared to allow some travelling expenses and a sum for tonic food but they will be greatly reduced having regard to the absence of receipts. For travelling expenses, Mr. Ng is allowed $1,500.00; for tonic food he is allowed $5,000.00. In all other respects I allow the especial damages as claimed. The sum allowed for special damages is therefore $19,724.00.

Further surgery:

47. As I have previously indicated as I have assessed damages on the basis that he will have the future operation, I allow the additional sum of $65,000.00 for future care and attention in order that he might undertake the surgery.

Interest:

48. I fix interest on PSLA at 2% x 17.5/12 months at $10,208.33. Interest on pre-trial loss and special damages totalling $516,281, is fixed at 4% x 45/12, a sum of $77,442.15. Total interest to the date of trial is $87,650.48.

49. I now set out a summary of the sums that I have awarded:

PSLA:	$350,000
Pre trial loss of earnings:	$481,660.20
Future loss of earnings:	$420,000.00
Loss of MPF:	$ 45.085.51
Special damages:	$ 19,742.00
Future Surgery:	$ 65,000.00
Interest:	$ 87,650.48
Total:	$1,469,138.19

This sum must be discounted by 10% for contributory damage bringing the net damages awarded to $1,322,224.37.

50. There will be judgement for the plaintiff in the sum of $1,322,224.37 with interest at judgement rate from the date of judgement. There will be an order nisi for costs on that sum, that order to be absolute in 14 days. If required the plaintiff's costs will be taxed on Legal aid Regulations.