RASHAD MUHAMMAD v. GURUNG AMRIT SINGH t/a FEWA CO AND ANOTHER

CACV 165/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 165 OF 2010

(ON APPEAL FROM HCPI NO. 531 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Tang VP:

1.  I have had the advantage of reading Fok JA’s judgment in draft. I agree with it and have nothing to add.

Hon Cheung JA:

2.  I also agree.

Hon Fok JA:

Introduction

3.  By his judgment dated 16 July 2010, Wright J dismissed the plaintiff’s claim against the defendants for damages for personal injuries.  He held, at paragraph 31 of the judgment:

“In my judgment there was no failure at all on the part of either defendant: neither was negligent, neither was in breach of its duty. I am satisfied that the defendants had taken all such reasonable precautions as were necessary. The injury sustained by the plaintiff was solely the result of his own negligent conduct.”

4.  So far as quantum was concerned, the Judge dealt with this because he believed it “appropriate to say a little because the plaintiff’s assertions in support of quantum are interwoven with the issue of his credibility” (Judgment §33).  He would have assessed damages for pain, suffering and loss of amenities at $50,000, pre-trial loss of earnings and MPF at $76,360.20 and other special damages at $3,552.  He would not have awarded any damages for post-trial loss of earnings and MPF or for disadvantage in the labour market.

5.  From this judgment the plaintiff now appeals. He is acting in person in this court, having been represented by counsel and solicitors below.  No doubt because of the fact he is acting in person, his notice of appeal is not in proper form, since it omits to stipulate the order which he seeks from this court by way of substitution for the order of the Judge against which he is appealing.  However, it is clear enough from the grounds of appeal advanced that the plaintiff is seeking an order that judgment be entered in his favour on liability and that the quantum of his damages should be greater than the sum assessed by the Judge.

The facts giving rise to the plaintiff’s injury

6.  The Judge found that, since arriving in Hong Kong in 1997, the plaintiff had worked in the construction industry as a general labourer for a number of subcontractors.  In 2006 he changed jobs and took up employment with the 1^st defendant on 1 August 2006.  He was introduced to this job by a friend, Nassar Khan, who was his immediate superior on the day of the accident.  He was employed as a general labourer by the 1^st defendant but was in possession of a rigger’s certificate issued to him in 2005.

7.  In October 2007 he was promoted from general labourer to rigger, although he had been performing the duties of a rigger since August 2006, working on the MTRC West Kowloon station construction site, on which the 2^nd defendant was the principal contractor.  It was the plaintiff’s evidence that part of his duties as a rigger was to ensure that loads placed on vehicles for transportation were safe and secure.

8.  On 26 March 2008, the plaintiff was instructed by his supervisor to load a metal drum onto a crane truck and to unload it at the Jordan Ferry pier.  He accomplished this task with the assistance of two general workers from the site, after which the truck, its driver (who was apparently also the crane operator), the two general workers and the plaintiff returned to the site.

9.  The plaintiff was then required to supervise the loading of steel frames onto the same truck and to transport them, one by one, to the ferry pier.  In order to load the first of the steel frames onto the truck, the plaintiff placed hooks into the metal frame structure and the crane operator hoisted the frame onto the flatbed of the truck.  The two general workers were present and assisted with this.  Whilst the frame was still being hoisted and before the plaintiff saw it safely placed and secure on the truck, he left the scene to go to the toilet.

10.  When he returned from the toilet, the plaintiff found the frame had been loaded onto the truck but the crane operator and two general workers were no longer there.  It appears that they had left for their lunch break.

11.  The Judge noted that there was considerable contradiction in the plaintiff’s version of events as to how he came to sustain his injury.  He considered the plaintiff’s statement made to the Labour Department dated July 2008, an accident report dated 24 July 2008 and the plaintiff’s witness statement.  The Judge said those accounts were broadly consistent with one another, namely that on his return from the toilet, the plaintiff found that one of the legs of the metal frame was shorter than the others so that the workers had inserted a wooden block or chock for support and that he had tried to test if this support was stable by holding the wooden chock with his left hand and shaking the leg of the metal frame with his right hand.  When he was doing so, the wooden chock gave way and the leg of the metal frame came down, catching the plaintiff’s left thumb between the bottom of the leg and the wooden chock.

12.  In contrast, the Judge recorded that in his cross-examination, the plaintiff asserted that he had not attempted either to push the wooden chock or to move the leg of the metal frame.  The Judge did not accept this new version propounded by the plaintiff, namely that he was merely standing with his hand on the wooden chock when the frame dropped onto him (Judgment §16).

13.  The Judge found that what the plaintiff had said on previous occasions before coming to court more accurately reflected what occurred on the day of the incident.  His material findings as to the mechanism of the injury are these:

“19. … He was fully aware of the fact that a frame was being loaded on to the crane truck and that it was his responsibility to ensure that it could be safely transported yet, despite this, he chose to absent himself from the loading process before it was complete. I note his evidence that it was his lunchtime, as well is that of the driver/crane operator and the general workers.

20. I accept that upon his return neither the general workers nor the driver/crane operator was present at the crane truck. The plaintiff plainly did approach the truck and then manipulate the frame, the wooden block or both in some manner or another so as to cause the tip of his thumb to be pinched between the wooden block and a part of the frame. That it was what may properly be described as the tip of his thumb being ‘nipped’ is evident from the fact that he was able to withdraw his hand, apparently without any difficulty, from the glove which can be seen in photographs exhibited as having the very tip of the thumb portion caught between the wooden block and the frame.”

The grounds of appeal

14.  The Judge clearly understood the basis on which the plaintiff’s claim was advanced. His summary of the plaintiff’s case in paragraph 2 of the Judgment accurately reflects the Amended Statement of Claim:

“2. The plaintiff’s case as pleaded is that as a consequence of the injury he experienced pain and suffering and is now prevented from carrying on his previous occupation; that the injury which gave rise to that condition was caused by the 1^st defendant’s negligence or by the breach of the duty of care which it owed to him as his employer, or by the 2^nd defendant’s breach of its statutory duty of care, which breaches have been particularized in 15 different ways; and that the likelihood of harm to him was foreseeable.”

15.  As noted above, the Judge found in favour of the defendants on the issue of negligence and breach of duty.

16.  The first ground of appeal in the notice of appeal is that:

“The learned Judge was plainly wrong to made [sic] certain comments as to his own impressions as to the merits of this case during counsel’s opening. Judge’s views were expressed in such strident terms.”

17.  There is nothing unusual in a judge expressing provisional or preliminary views on the strengths or weaknesses of a party’s case in the course of opening submissions.  The practice of providing trial bundles and written opening submissions in advance of the hearing saves considerable time by enabling a judge to understand in advance the facts, evidence and issues in the case.  If, in the course of having read the relevant materials before the hearing, the judge forms provisional or preliminary views about any particular aspect of the evidence or issue arising in the case, it is perfectly proper for him to indicate this to counsel in the course of the opening submissions.  The purpose of his doing so will generally be to assist the parties by focusing their attention on the real issues and areas of the evidence which may need particular attention when the witnesses are giving their oral evidence.  This expression of provisional or preliminary views by a judge is entirely consistent with the more active case management role which he is expected to discharge under the Civil Justice Reform.  Thus, although it may be disquieting for a litigant to hear a judge expressing provisional or preliminary views on the merits of his case at the stage of the opening, there is nothing objectionable about this providing of course the judge retains an open mind on the evidence and submissions that are then put before him in the course of the trial.

18.  We have not been provided with a transcript of the proceedings below and so we do not know precisely what was said by the Judge, and how he might have expressed himself, in the course of the plaintiff’s counsel’s opening.  There is therefore no proper basis on which to accede to the plaintiff’s first ground of appeal.  I would add, however, that it is amply clear from the Judgment itself that the Judge in the present case took care to identify the issues in the action, to identify the relevant evidence which went to those issues, to consider the arguments advanced by the plaintiff in support of his case and to explain his reasons for coming to the conclusions he did on both liability and quantum.

19.  In the circumstances, I reject the plaintiff’s first ground of appeal.

20.  The second and third grounds of appeal go to the issue of liability.  In the second ground of appeal, the plaintiff contends that the system of work was unsafe and that, when he returned from the toilet to find the metal frame already loaded on a flatbed truck with the wooden chock being used to support the shorter leg of the frame, he found himself in a quandary as to what to do because, he contends, if the driver had returned before everyone else came back from lunch and started to drive away to the ferry pier, the chock might have given way during transit and caused a serious accident.

21.  By the third ground of appeal, the plaintiff contends that the Judge did not address the claims for breach of statutory duty at all.

22.  There is no doubt that the Judge properly had in mind the question of whether the system of work was safe.  In paragraph 23 of the Judgment, the Judge cited part of the speech of Lord Oaksey in Winter v Cardiff Rural District Council [1950] 1 All ER 819 at p. 822H in which one of the common law duties of an employer was specifically identified as being a duty to give adequate directions as to the system of work or mode of operation.

23.  The Judge noted (Judgment §24) the plaintiff’s answer to a question asked by the factory inspector in which he asserted that he usually checked the legs of a frame before it was loaded onto a truck and that, if he saw that the legs were of unequal length, he would arrange for them either to be evened up or for the entire frame to be cut up.  He also noted the plaintiff’s evidence that it was he who secured the ties necessary to enable the frame to be lifted onto the truck (Judgment §25).

24.  There was no suggestion in the evidence that the plaintiff had checked the frame prior to it being loaded onto the truck (Judgment §25) and the Judge noted that, when he returned to the scene and found nobody else present, he chose to use a method to check the stability of the frame and chock which he had never used before and to do so without reference to his supervisor whom he accepted he could have contacted (Judgment §26).

25.  The issue of whether the plaintiff was put in a quandary was addressed by the Judge (Judgment §§27 and 28) who noted that the suggestion the driver might drive away immediately without waiting for the other workers and the plaintiff is inconsistent with the requirement that they also be present at the ferry pier to assist in the offloading process.  The Judge held:

“28. … there simply was no necessity for the plaintiff to have interfered with the chock and frame at that stage: he needed to have done nothing as there is no suggestion in the evidence that, at that time, the arrangements posed any danger to the plaintiff or to anyone else. On the plaintiff’s evidence the worst-case scenario was that there was a potential danger which would only be realised, if at all, once the truck was moved.”

26.  The Judge went on to hold:

“29. There were obvious, commonsense avenues open to the plaintiff to prevent that happening, none of which would have involved exposing himself to a situation in which he might be injured. Instead, the plaintiff made a conscious decision to act, unnecessarily, as he did.

30. The plaintiff accepted that he had supervised the loading of lorries in situations like this many times before: he was an experienced rigger, well-familiar with the working practices of his employer which, until then, he had followed without incident. This was his first departure from those practices. He was, he said, trusted to do his job properly and safely.”

27.  On the question of whether a safe system of work was provided, I find myself in complete agreement with the Judge.  On the mechanism of the injury as found by the Judge, which is not challenged on this appeal, this is a case in which the plaintiff failed to ensure the legs of the frame were of even size before it was lifted onto the flatbed of the truck.  For whatever reason, the plaintiff absented himself from the loading operation and failed to oversee it as he ought.  There was no need for the plaintiff to handle the metal frame and wooden chock in the risky and therefore unsafe manner in which he did without seeking advice from his supervisor or assistance from his co-workers.  There was no immediate danger at the time and the plaintiff simply brought the accident upon himself.

28.  In the circumstances, I accept the submission of Mr Ashok Sakhrani, counsel for the defendants, advanced in his skeleton that the defendants were entitled to rely on this experienced plaintiff to exercise some care for his own safety.  Given the plaintiff’s confirmation that he had never previously used this method to check the stability of a metal frame, there was no reason for the defendants to foresee or think that he would act in this way on this occasion.

29.  I therefore reject the second ground of appeal and now turn to the third ground of appeal, alleging failure on the part of the Judge to address the claims for breach of statutory duty.

30.  In my opinion, there is nothing in this ground of appeal.

31.  The Amended Statement of Claim alleged breach of statutory duties under the Construction Sites (Safety) Regulations (Cap. 59) and the Occupational Health and Safety Ordinance and Regulation (Cap. 509).  Specifically, breach of regulation 52(2)(a) of the CSSR and breaches of sections 6(2)(a), (b), (c) and (e) of the OHSO and regulations 24(1), 27(1)(a) and 27(1)(c) of the OHSR were alleged.

32.  It is not necessary to set out the various provisions of the OHSO and OHSR relied upon at length.  The requirements of those provisions are, in summary: to provide or maintain plant and systems of work that are so far as reasonably practicable safe and without risk to an employee’s health; to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to the health of an employee in connection with the use, handling, storage or transport of plant; to provide such information, instructions, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employee; to provide or maintain a working environment for an employee that is, so far as reasonably practicable, safe and without risks to health; to avoid, so far as reasonably practicable, the need for an employee to undertake manual handling operations which may create safety and health risks; to ensure that appropriate steps are taken to reduce risks to the safety and health of an employee whilst he is undertaking manual handling operations to the lowest level reasonably practicable; and to provide an employee with such mechanical aids or mechanical equipment as to secure his safety and health whilst undertaking manual handling operations.

33.  It will be apparent from the summary of those obligations that they are co-extensive with the employer’s common law duty of care to an employee and, to that extent, add nothing in the context of an action for damages for personal injuries arising out of an accident to an employee in the course of his employment.  I agree with the view expressed by Deputy High Court Judge Fung (as he then was) in Lam Wai Chi v Project Concern Hong Kong, unrep., HCPI 78/2002, 10.4.03 at §48 that:

“… the considerations under the Occupational Safety and Health Regulations and the tort of negligence are co-extensive”.

34.  So far as regulation 52(2)(a) of the CSSR is concerned, this provides:

“(2) The contractor responsible for any construction site where materials are being kept or stored and any contractor who has direct control over any construction work which involves the use of the materials that are being kept or stored in the site shall ensure that they are not –

(a) insecurely stacked in a place where they may be dangerous to workmen employed at the site; …”.

35.  It is, in my opinion, self-evident from this provision that it is directed towards materials that are stored or stacked in place on a construction site and not to materials, like the metal frame in the present case, which was being transported individually from one part of the construction site to another.  In short, the regulation in question does not apply on the facts of this case.

36.  I have already set out the Judge’s concluding paragraph on liability (Judgment §31).  I am satisfied that he was mindful of the allegations of breach of statutory duty advanced on behalf of the plaintiff and that he reached the view, correctly in my judgment, that there was no breach of any such duty.

37.  The last ground of appeal, ground 4 of the notice of appeal, concerns quantum.

38.  Given my conclusions on the three grounds of appeal which go to the issue of liability, it is not necessary to deal with ground 4 in any detail or indeed at all.  However, I am quite satisfied that there is no merit whatsoever in this ground of appeal.

39.  It is clear that the Judge formed an adverse view of the plaintiff’s credibility so far as his injury was concerned.  He plainly considered the plaintiff had tried to exaggerate the nature and consequences of his injury (Judgment §49).

40.  The Judge considered and weighed the evidence of the parties’ respective orthopaedic experts, who had produced a joint report. Their examination suggested sub-maximal effort in testing and poor co-operation when testing the range of movement of the plaintiff’s left thumb.  There was an objective absence of muscle wasting which contradicted the plaintiff’s complaints.  The defendants’ expert’s unequivocal view was that the plaintiff could return to his pre-injury employment as a rigger if he were motivated to do so.  Even the plaintiff’s expert considered he could be able to perform the duties he performed as a rigger, although added the qualification that he needed to do these actions more slowly and carefully and some reduction in efficiency and endurance would be expected.

41.  Having set out the respective views of the experts, the Judge concluded:

“46. I have had the benefit of seeing photographs of the plaintiff’s hands taken at the time of the examination by the orthopaedic surgeons as well as the radiographs and, in addition, of observing the plaintiff in court. I reject, as being without any foundation, the submission made on behalf of the plaintiff that Dr Yip [the defendants’ orthopaedic expert] shows bias in comparing the plaintiff’s injury to a simple domestic laceration. I accept his evidence in this regard.

47. I also accept that the plaintiff is able to return to his pre-injury employment: this is the view of both orthopaedic surgeons, albeit that Dr. Lam’s [the plaintiff’s orthopaedic expert] view is mildly qualified. I reject the plaintiff’s assertions to the contrary which are subjective and unsupported, indeed contradicted, by the evidence.”

42.  For these reasons, the Judge held that the plaintiff had failed to prove any future loss of earnings post-trial at all or any disadvantage in the labour market (Judgment §48).

43.  This court will only interfere with an assessment of damages if the trial judge is found to be in serious error or acting on a wrong principle of law or if the amount awarded is so high or so small as to make it, in the judgment of this court, an entirely erroneous estimate: Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 at §§70-72.

44.  In my judgment, there is no question of the Judge having been in serious error having acted on a wrong principle of law in his assessment of damages in the present case.  Nor do I consider the amount he would have awarded to be so small as to make it an entirely erroneous estimate.

Disposition and costs

45.  For the above reasons, I would dismiss this appeal.

46.  There is no reason why costs should not follow the event and I therefore make an order nisi that the plaintiff pay the defendants’ costs of this appeal, to be taxed if not agreed.