KAMAL RANA v. AOKI CORPORATION

HCPI 1404/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1404 OF 2000

____________

____________

_______________

J U D G M E N T

_______________

1. This is a claim for damages for personal injuries and consequential loss arising out of an accident at work. Both liability and quantum are in issue. The Plaintiff is a Nepalese man aged 30, married with one child. He was born in Hong Kong while his father was serving here as a Gurkha soldier. He grew up in Nepal, and then returned to Hong Kong in 1995. He has permanent resident status here. His language is Nepalese. He left school at the age of about 12 and he can speak and read a little English but not any Chinese. Following his return to Hong Kong, he worked for two other employers before starting to work for the Defendant. In October 1996 he took up employment with the Defendant as a scaffolder, and he was in the course of his employment with the Defendant when he met with the accident giving rise to this case. At that time he was, as he had been ever since he started working for the Defendant, a scaffolder working on an MTRC station and tunnel construction project.

2. The accident happened on 5 January 1998. It happened in a tunnel where the Plaintiff was erecting a steel scaffolding platform. The platform consisted of steel frames supporting steel planks. Two frames and one set of planks resting on them constituted one section of one level. The second level would sit on top of the first level. The Plaintiff had completed the first level of four adjoining sections. He was standing on the platform of the first level of the first section trying to slot in the frame for the second level of that section. This was made more difficult by the fact that the frame was somewhat warped. While he was attempting to slot it in, he fell forward and landed on the ground, taking the main impact of the fall on his right knee.

LIABILITY

3. The Plaintiff's case on liability is put on two bases. Under one basis the question is: was the accident caused by negligence on the Defendant's part in failing to discharge the duty of care owed at common law by employers to employees? Under the other basis, the question is: was the accident caused by a breach on the Defendant's part of any statutory duty actionable by employees? If either question is answered in the Plaintiff's favour, then he will succeed on liability subject to the question of contributory negligence.

4. At common law, employers owe employees a duty to take reasonable care for their safety. As is well known, Lord Wright said in Wilsons and Clyde Coal Co. v English [1938] AC 57 at p. 78 that this duty involves "the provision of a competent staff of men, adequate material, and a proper system and effective supervision". It has been said that there should be added: "a safe place of work": see Charlesworth and Percy on Negligence, 10th ed. (2001), p. 688, para. 10-02, footnote 7. Whether a safe place of work is something separate or is something implicit in a safe system of work does not matter. Either way the duty includes the provision of a safe place of work.

5. As for breach of statutory duty, "a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that [the legislature] intended to confer on members of that class a private right of action for breach of the duty": per Lord Browne-Wilkinson in X (Minors) v. Bedfordshire C.C. [1995] 2 AC 633 at p. 731D. In the present case, the statutory duties relied upon by the Plaintiff are those under the Construction Sites (Safety) Regulations (Cap. 59), and in my view it is plain that under Lord Browne-Wilkinson's test the breaches of the statutory duties relied upon are actionable by a person like this Plaintiff. Indeed there is direct authority on the point. In Rainfield Design & Associates v. Sui Chi Moon (2000) 3 HKCFAR 134, a case decided by the Court of Final Appeal, the plaintiff there succeeded in an action based on a breach of reg. 38A(a) of those Regulations dealing with safe access to and egrees from every place of work on a site. In that case the plaintiff had not been provided with a ladder, and had to get up and down the scaffold on which he was working by climbing up and down the bars of the scaffold. While he was climbing down those bars he fell and was injured.

6. In the present case, the platform on which the Plaintiff was working did not have any guard-rails or anything else to prevent his falling onto the ground. He had been provided with a safety belt, and he was wearing it at the time. But it was not attached to anything because there was nothing for it to be anchored to so as to prevent the wearer from falling onto the ground.

7. In my judgment, the Defendant was, for the reasons which I am about to give, in breach of the common law duty of care which it owed the Plaintiff. It failed to take reasonable care for his safety. In particular, it failed to provide him with adequate material, a safe system of work or a safe place of work. The safety belt provided was inadequate because there was no place for it to be anchored to so as to prevent the wearer from falling onto the ground. That left both the system of work and the place of work less than reasonably safe. Plainly these failures of the Defendant's were causative of the Plaintiff's accident.

8. I am also of the view that the Defendant was, for the reasons which I am about to give, in breach of its statutory duties under regs 38N and 38Q which are among the regulations relied upon by the Plaintiff. Plainly the Defendant was a contractor within the meaning of regs 38N and 38Q. The evidence shows, and I find, that the platform was over 2 metres above the ground.

9. Headed "Guard-rails at working platforms and places", reg 38N reads:

"(1) The contractor responsible for a construction site shall ensure that every side of a working platform, working place, gangway, run or stair being a side from which a person is liable to fall a distance of more than 2 metres is provided with a suitable guard-rail or guard-rails of adequate strength to a height between 900 millimetres and 1,150 millimetres.

(2) The guard-rails required under paragraph (1) may be removed or remain unerected for the time and to the extent necessary for the access of persons or the movement of materials.

(3) None of the requirements of this regulation shall apply to-

(a) the platform of a ladder scaffold if a secure handhold is provided along the full length of such platform;

(b) the platform of a trestle scaffold when the platform is supported on folding trestles, split heads or similar devices or folding step-ladders;

(c) the platform of a bamboo scaffold if such platform is protected by not less than 2 horizontal bamboo members of the scaffold spaced at intervals between 750 millimetres to 900 millimetres."

10. Regulation 38Q is headed "Prevention of falls and provision of safety nets and belts", and it reads:

"(1) Where by reason of the special nature or circumstances of any part of the work or of the access thereto or the egress therefrom it is impracticable to comply with all or any of the requirements of regulations 38A, 38B, 38L, 38M, 38N and 38P so far as they relate to the falls of persons, the contractor responsible for a construction site shall erect and keep in such positions as to be effective to protect persons carrying on that part of the work or using the said access or egress suitable safety nets or safety belts or other suitable and sufficient equipment of such a design and so constructed and installed as to prevent so far as practicable injury to persons:

Provided that such safety nets may be removed or remain unerected for the time and to the extent necessary for the access of persons or the movement of materials or other purposes of the work, but shall be replaced or erected as soon as practicable.

(2) Where the use of a safety belt is required pursuant to paragraph (1) the contractor shall provide each workman employed on the site with a suitable safety belt.

(3) Where a safety belt is provided under this regulation the contractor shall also provide a suitable and sufficient anchorage and suitable fittings therefor; and each such safety belt, anchorage and fitting shall be of such a design and so constructed as to prevent serious injury in the event of a fall to any person using it.

(4) The contractor shall ensure that all safety nets, safety belts and other equipment provided pursuant to this regulation are properly maintained.

(5) The contractor shall take all reasonable steps to ensure that no workman remains on any dangerous place on the construction site without wearing a safety belt provided to the workman in pursuance of this regulation."

11. I will assume in the Defendant's favour that it was impracticable to provide guard-rails or the like. If so, a suitable and adequate safety net or safety belt should have been provided. But no safety net at all was provided, and the safety belt provided was neither suitable nor adequate since there was no place for it to be anchored so as to prevent the Plaintiff from falling onto the ground. The Defendant seems to suggest that it was impossible to provide an anchorage until the second level of the platform was completed and the safety belt could be anchored to that level. If so, that alone would show that the system was inherently unsafe and made a breach of statutory duty inevitable. In any event, I do not accept that no anchorage other than the second level could have been devised.

12. Was there any contributory negligence? In my view, no contributory negligence has been made out against the Plaintiff. As I see it, the right thinking in this sort of situation is reflected in reg. 38R which is headed "Duty to wear safety belt" and reads:

"Every workman employed on a construction site who has been provided with a safety belt shall wear it and keep it attached to a secure anchorage whenever the use of the belt is necessary for his own or any other person's safety."

A safety regulation directly on point can shed useful light on the question of contributory negligence on an employee's part both in relation to breach of an employer's duty of care at common law and in relation to breach of an employer's statutory duty.

13. Here the problem did not arise out of any failure on the part of the Plaintiff to wear a safety belt. The problem was that the safety belt was not attached to a secure anchorage because no anchorage at all was provided. In all the circumstances and bearing in mind the respective positions of the parties, I do not think that it would be realistic or fair to condemn the Plaintiff as contributorily negligent. Theoretically at least, he could have flatly refused to do the work unless and until a secure anchorage for his safety belt was provided. But it would be neither realistic nor fair to fault him for not doing so and therefore to reduce his damages. It lies ill in the mouth of an employer in breach of common law or statutory duty to say that his employee should have downed tools because of his i.e. the employer's breach of either or both of these duties.

14. For the forgoing reasons, I find the Defendant 100 per cent liable for the Plaintiff's accident.

QUANTUM

15. Having found for the Plaintiff on liability, I turn to quantum, and I begin with an outline of his medical history from the time of the accident until the present time.

16. On the day of the accident, 5 January 1998, the Plaintiff was taken by ambulance to Queen Mary Hospital where he was examined, given analgesics, X-rayed, given an appointment to attend Sai Ying Pun Clinic on 10 January 1998 and then sent home. He kept the appointment at the clinic, and he was given another appointment. This one was to attend Queen Mary Hospital on 12 January. He kept that appointment too. During that appointment, he was diagnosed with obvious haemarthrosis of right knee and admitted into hospital. He remained at the Queen Mary Hospital until 23 January. During that stay he underwent arthroscopy of the right knee which was performed under anaesthesia. During this operation, which was performed on 13 January, a large loose chondral fragment was removed.

17. On the day of his discharge from Queen May Hospital on 23 January 1998, he was admitted to the MacLehose Medical Rehabilitation Centre where he remained for about two months, undergoing intensive physiotherapy. Following his discharge from this centre where he had undergone physiotherapy as an in-patient, he underwent physiotherapy there as an out-patient. But because he still complained of pain over his right knee medial compartment instability, he was re-admitted to Queen Mary Hospital on 25 November remaining there until 30 November. During this stay at Queen Mary Hospital, high tibial osteotemy of his right knee was performed under anaesthesia. This operation was complicated by peroneal nerve injury resulting in right big toe drop and numbness over the dorsum of the right foot.

18. Upon his discharge from Queen Mary Hospital, he was re-admitted to the MacLehose Medical Rehabilitation Centre where he received in-patient physiotherapy until 6 May 1999. Thereafter he received out-patient physiotherapy at that centre until August 1999.

19. At the present time, it would appear that he is still being followed up at the hospital and he is still on painkillers on a "need" basis.

20. As to the Plaintiff's employment or lack of employment from the time of the accident until now, the position may be summarised as follows.

21. He did not do any work after the accident until 1 July 2001. However from the time of the accident until 3 September 1999, he was on sick leave. As to the work he took up on 1 July 2001, it was as a doormen at a disco being paid $8,000.00 a month plus 5% being credited into his account by his employer under the Mandatory Provident Fund scheme. He went on leave to Napal on 30 October this year returning on 9 November when he was informed by his employer at the disco that his services were no longer required because business was bad. So he did not return to work at the disco. There is no evidence that he received any payment in lieu of notice. He has been unemployed since ceasing to work at the disco and he is unemployed at present.

22. A number of medical reports on the Plaintiff have been placed before me. These include one by Dr Tsoi Chi Wah who gave oral evidence for the Plaintiff and four by Dr Lau Man Tsang who gave oral evidence for the Defendant. On the Plaintiff's condition, the matters which I am concerned with include not only his actual condition and prognosis but the question of how far they are affected by the consequences of an injury which he had sustained prior to the accident on which the present case is based. On all these matters, I have given careful consideration to all of the evidence and arguments, and have come to the conclusion that wherever the testimony given by Dr Tsoi called by the Plaintiff differs from the testimony given by Dr Lau called by the Defendant, it is the testimony of Dr Tsoi which is to be preferred. On the strength of Dr Tsoi's testimony, which I accept, I find as summarised below. The evidence on which I base my findings includes of course the Plaintiff's own testimony. But he has exaggerated a number of matters and my findings discount what he has exaggerated.

23. As to the treatment which the Plaintiff has undergone and the pain, discomfort and inconvenience which that would probably have involved, I need not repeat what I have already outlined earlier in this judgment.

24. As to the Plaintiff's present condition, his present problems put in ordinary terms are: pain over the right knee after prolonged standing; sensations of instability over the right knee, which easily gives way and lacks control; loss of confidence in climbing, jumping and hopping; weakness of the right lower limb; hypersensitivity to touch of the right foot; numbness over the dorsum of the right foot; and sensation of click and locking over the right knee.

25. His general condition as found upon physical examination may be summarised as follows. He is in good health; walks with a normal gait; is able to perform heel and toe walking; is able to squat down and rise up without difficulty; and has good balance when standing on the right leg alone.

26. His right knee as found upon physical examination shows: mild valgus malalignment of the right knee; a number of scars; muscle wasting; restricted range of motion; ligamentous laxity; click and crepitus but no tenderness; reduced muscle strength; and complaint of impaired touch and pain sensation over the dorsum of the right foot. Further details as to these matters are as set out in Dr Tsoi's medical report dated 2 March 2002, which he adopted in the witness-box and which I find accurate.

27. Radiological examination of the right knee revealed that high tibia valgus osteotemy has been performed with solid union of the osteotomy site; that mild valgus alignment has been achieved; that degenerative changes over the medial compartment with narrowing of the medial joint space has taken place; and that the patellofemoral joint appeared normal.

28. The Plaintiff had injured his right knee when he was about 10 years of age and that injury resulted in surgery. Despite that earlier injury, the plaintiff was able to play football to a very high standard as a forward. So much so that he had played in a district team in Napal. Also despite that earlier injury, he had managed to perform all kinds of extremely heavy manual work and to climb scaffolding. All that has changed as the result of the accident upon which he sues. As far as football is concerned, he can no longer do much more than play a little bit as a goal-keeper with children. As far as work is concerned, he can no longer be a scaffolder or do any heavy work. He is confined to work such as that of a security guard, cleaning worker, or other type of ground level worker. He cannot do any work which involves climbing, jumping or squatting. Had it not been for the accident, he would have been able to do scaffolding or other heavy work until the age of about 45 when he would then have been confined to the sort of lighter work which, as a result of the accident upon which he sues, he is now confined.

Pain and suffering and loss of amenities

29. As far as pain and suffering and loss of amenities ("PSLA") is concerned, Mr Wright for the Plaintiff submits that the present case falls within the lower end the "serious" category laid down in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. This is the category described these terms (at page 659) in Lee Ting Lam:

"those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain."

30. Mr Wright argues for a PSLA award of between $400,000 to $460,000. Mr Chan for the Defendant submits that this case does not reach the "serious" category of Lee Ting Lam. He says that the award for PSLA, even ignoring the previous injury, should be no more than between $280,000 to $300,000. Relying on the decision of the Court of Appeal in Chan Kam Hoi v. Dragages et Travaux Publics [1997] HKLY 437, Mr Chan says that there should be a reduction for the earlier injury so that the award for PSLA should be no more than $200,000.

31. In my view, this case does come somewhere below the "serious" category in Lee Ting Lam. Moreover it is a fact that the lack of strength and dexterity from what the Plaintiff now suffers would eventually have been brought on by the earlier injury. This would have been when the Plaintiff reaches the age of 45. On the other hand, I think that the figures put forward by Mr Chan are altogether too low. Doing the best I can, I assess the award for PSLA in the sum of $350,000.

Pre-trial loss of earnings

32. I have not found pre-trial loss of earnings at all easy to assess. There is evidence, which I accept, that by July 1998 the Defendant had laid off all its Nepalese workers. But there is also evidence, which I also accept, that Nepalese workers were able to find scaffolding work elsewhere. How much the Plaintiff would have earned as a scaffolder is not easy to decide. There are some government statistics which tend to suggest that their level of earnings had not gone down since the Plaintiff's accident in July 1998, when he was earning an average of $23,000 odd including overtime and bonus. On the other hand, there is evidence which suggests that scaffolders' earnings have gone down. Doing the best I can, I would say that if the Plaintiff had been working as a scaffolder the whole time from when his accident happened at the beginning of 1998 until the present time, he would have earned an average of $19,000 including overtime and bonus and taking into account Mandatory Provident Fund contributions by the Defendant. Mr Wright asks for a separate award in respect of such contributions. Mr Chan opposes that. I make no separate award, but have taken such contributions into account in arriving at that monthly figure of $19,000.

33. The pre-trial period up to today works out to be 59.84 months. At $19,000 a month, what the Plaintiff would have earned as a scaffolder during this pre-trial period would have been ($19,000 x 59.84) $1,136,960.

34. However, he had been earning $8,000 from 1 July 2001 until 3 October 2002, and Mr Wright accepts that the Plaintiff should be taken as able to earn that kind of money even after 3 October 2002. Moreover, I think that the Plaintiff was able to resume work earning about $8,000 a month much earlier than 1 July 2001. I think that he would have been able to return to work earning that kind of money by about the beginning of the year 2000, even taking into account the time needed to find work after being fit to resume work. So, as far as pre-trial loss of earnings are concerned, I propose to award $19,000 per month for a period of (59.84 - 36) 23.84 months and ($19,000 - $8,000) $11,000 per month for a period of 36 months. That gives ($19,000 x 23.84) $452,960 plus ($11,000 x 36) $396,000, which comes to $848,960.

35. The Plaintiff received employee's compensation in the sum of $616,464.45. I will deduct this sum from the sum of $848,960 to which I have just referred so as to arrive at $232,495.55. Therefore, rounding up the 55 cents, I award $232,496 by way of pre-trial loss of earnings.

Post-trial loss of earnings

36. The Plaintiff is now 30 years old. In view of my findings as set out above, it follows that I think that he would have worked as a scaffolder for another 15 years starting from now if it had not been for the accident he sues upon. For the reasons which appear from what I said when dealing with pre-trial loss of earnings, I take an annual multiplicand of ($19,000 - $8,000) x 12=$132,000. As for the appropriate multiplier on the basis of 15 years of working, Mr Wright suggests 9 or 10 while Mr Chan suggest 8. In my view, the appropriate multiplier is 9 in all the circumstances. I therefore award ($132,000 x 9) $1,188,000 by way of post-trial loss of earnings.

Loss of earning capacity

37. Mr Wright asks for $200,000 for loss of earning capacity. Mr Chan says no award should be made under this head. I agree with Mr Chan on this. The factors which would otherwise be relevant under this head have already been taken into account by me in arriving at my award for post-trial loss of earnings.

Special damages

38. Special damages have been agreed at $19,180. I make an award accordingly.

Total award of damages

39. The total award of damages is therefore $1,789,676, made up as follows:

a)	PSLA	$	350,000
b)	Pre-trial loss of earnings	$	232,496
c)	Post-trial loss of earnings	$	1,188,000
d)	Agreed special damages	$	19,180
			------------
		$	1,789,676
			========

Interest

40. I award interest on the award for PSLA at 2 per cent from the date of the service of the writ to the date of judgment and at 4.0625 per cent on the award for pre-trial loss of earnings and the award of agreed special damages from the date of the accident to the date of judgment.

Costs

41. I make an order nisi for costs in favour of the Plaintiff against the Defendant.