CHOW WAI HUNG v. KING RISE ENGINEERING LTD. AND ANOTHER

CACV 213/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 213 OF 2005

(ON APPEAL FROM DCPI 964 OF 2004)

______________________

J U D G M E N T

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Hon Rogers VP :

1. I agree with the judgment of Cheung JA and the orders he proposes.

Hon Le Pichon JA :

2. I agree with the judgment of Cheung JA.

Hon Cheung JA :

The appeal

3. The plaintiff claimed damages from the defendants in the District Court for injuries he sustained during work.  His case was dismissed by HH Judge Wesley Wong.  He now appeals against the judgment.

Facts 

4. The facts are quite straightforward.  It is not disputed that on 11 September 2003 the plaintiff was employed by the defendants as a carpenter to carry out renovation work at a building situated at the Western district.  His task was to remove the false ceiling on the third floor of the building and to install a new ceiling in its place.  At the time of the accident he was removing a nail which was embedded in a concrete wall.  The nail was about 50 mm in length.  It went through a wooden panel which was attached to the wall.  He had to stand on a ladder to remove the nail.  The nail was at his eye level and he used a hammer to strike on the left and right side of the nail in order to loosen and pull it out.  As he struck the nail, it broke and a fragment of the nail hit and injured his right eye.

The two methods

5. The plaintiff carried as part of his tools a hammer and a pair of pliers.  The pliers were too small and not strong enough to pull the nail out so he used the hammer to remove it. 

6. According to the defence, there were two ways of removing the nail.  The first was to pull out the nail, the second was to hammer the nail all the way into the wall, leaving the cap exposed on the surface of the wall. 

7. The defendants conceded that there were no larger pliers available for the workers to remove the nails attached to the concrete wall.  The foreman (‘the foreman’) of the defendants said in evidence that a crowbar was available to the plaintiff to pull out the nail.  However, this suggestion was not pleaded nor put to the plaintiff during his evidence.  Hence, the first method suggested by the defendants was simply not viable. 

8. As to the second method, it is also clear that if the nail was hammered in all the way into the wall, the wooden panel which was attached to the concrete wall would be stuck on the wall when the plaintiff’s task was to remove it as well.  Hence, the only way to remove the nail was the method adopted by the plaintiff. 

Foreseeablity

9. In dismissing the plaintiff’s claim, the judge held that

‘ The occurrence of such accident is extremely remote and not reasonably foreseeable.’

10. The defence pleaded that

‘ It is foreseeable that the protruded head of the nail would break and the fragment of it would fly out if impact forces were applied on both sides of the nail’s head.’

11. It was further pleaded that

‘ it is rude (sic), unprofessional or negligent to apply impact force on both sides of the protruded nail’s head with a view to cut the protruded head of the nail.’

12. Hence, even on the defendants’ own case it is foreseeable that the nail would break and the fragments would fly out.  It is argued by the defendants that the pleading was made in response to the pleaded case of the plaintiff that he was hammering the head of the nail with impact force whereas the evidence actually showed that the plaintiff was hammering the left and the right side of the nail and not its head and that he was not using great force. 

13. It should be noted that the foreman in giving evidence was not overly concerned about whether the plaintiff was hitting the sides of the nail or its head.  He agreed that by adopting this method there was a risk that the nail would break, fly out and injure the worker.  In my view, whether the hammer hit the head or the sides of the nail would make no substantial difference to the defendants’ case.  As far as force was concerned it must be one that would loosen the nail.  As a matter of commonsense, it is reasonably foreseeable that using the method adopted by the plaintiff would break the nail, forcing it to fly off and injure someone close to the operation including himself. This being the case the judge was wrong to say that the injury to the plaintiff was not reasonably foreseeable.  The fact that the plaintiff himself had not been injured in the past (he had 15 years of work experience) does not mean that the damage was not foreseeable. 

14. If the injury was foreseeable, the next question is whether the defendants were liable as employers in failing to provide a safe system of work by causing or permitting the plaintiff to adopt the risky method of hammering the embedded nails in order to loosen them and in failing to provide suitable goggles for his use. 

15. The foreman was aware that the carpenters at the site would hammer the sides of the nails in order to remove them from the wall and he did not tell them they should wear goggles.  He said that there were about six pairs of goggles in the tool room.  There were about 70 workers on the site. 

16. The plaintiff testified that he had gone into the tool room and he could not find any goggles.  The judge did not make any express finding whether there were goggles in the tool room.  In his judgment, he said this,

‘ He, (i.e. the plaintiff) said there was a tool room but there was no pliers nor goggles there.  However, there was no evidence from the plaintiff that he ever asked the defendant for goggles nor pliers.’

17. The judge certainly had not rejected the plaintiff’s evidence that there were no goggles in the tool room.  Had he done so, there was no need for him to say that the plaintiff had not asked the defendant for goggles.  In my view, the judgment could only mean that the judge had accepted the plaintiff’s evidence that there were no goggles in the tool room.  This is reinforced by the judge’s observation during counsel’s closing submission that other workers might have taken the goggles in the tool room even if the defendants had provided them.

18. There was certainly no evidence that had the plaintiff asked the defendant for goggles there would be goggles available for his use.  As Mr. Bharwaney, counsel for the plaintiff, submitted if the plaintiff asked for goggles, he would probably be told by the foreman to look for them in the tool room.   In any event, the clear evidence of the foreman was that he himself had never asked the carpenters to wear goggles and that he had never told them that goggles were available for their use if they needed them. 

Defendants in breach

19. In the light of the evidence, the defendants as employers were clearly in breach of their common law duty by failing to provide the plaintiff employee with a safe system of work and safety equipment such as goggles.  The defendants’ liability has been established.

Contributory negligence

20. The defendants’ case proceeded on the basis that the plaintiff was solely responsible for his own injuries by adopting this method of removing the nail.  There was no plea of contributory negligence on his part by not wearing goggles or asking the defendants to provide him with goggles.  Ms Tsang, counsel for the defendants, submitted that although contributory negligence was not pleaded, she could still rely on it because the defendants had already said that the plaintiff was negligent.  Further the plaintiff was not taken by surprise because his former counsel at the trial had addressed this issue at her opening.  The contributory negligence now relied upon by Ms Tsang is that the plaintiff should have asked the defendants for goggles and that he should have a pair of goggles himself as part of his tools.

21. In my view, contributory negligence must be pleaded in order to enable the plaintiff to respond to it properly.  The defendants’ new case of the plaintiff bringing his own goggles best illustrates the need to plead contributory negligence as a specific defence.  Evidence as to the general requirement of carpenters to bring their goggles would be relevant if the matter was raised.  It is interesting to note that the defendants’ case that was put to the plaintiff at the trial was that the trade practice for carpenters doing the nailing and hammering work was that they would not wear goggles.  On that basis I fail to see how the plaintiff could be guilty of contributory negligence by not having his own goggles.  The defendants had not pleaded contributory negligence and had not filed a respondents’ notice in this appeal.  It is too late to raise this issue now. 

22. Further when the plaintiff’s former counsel referred to contributory negligence it must be in response to the allegation of the defendants about the method adopted by the plaintiff in removing the nail and not on the issue of goggles.  In respect of the method he used, it is clear from the evidence that it was a method commonly adopted by the carpenters and he had not been told to use another method.  On this basis he could not be held to be contributorily negligent.

23. Even if this issue can be raised now, on the evidence before the court, the plaintiff could not be guilty of contributory negligence in the light of what I have said earlier about the plaintiff not bringing his own goggles, not asking for goggles and adopting the method of work which caused his injury.

Statutory requirement

24. This being the case, it is not necessary to express a view whether the defendants were also in breach of statutory duties under section 6(1) and (2) of the Occupational Safety and Health Ordinance Cap. 509 and whether the defendants were required under the Factories and Industrial Undertakings (Protection of Eyes) Regulations, Cap, 59S to provide eye protectors to the plaintiff when the work falls within item 14(d) of the specified processes, namely, breaking, cutting, dressing etc. of concrete by hand tools or other portable tools.  The dictionary meaning of ‘dress’ includes trim and smooth the surface. 

Damages

25. Although the judge dismissed the plaintiff’s claim on liability, he had also given an alternative finding on damages as follows :

1.	Pain suffering and loss of amenities (‘PSLA’)	$
2.	Pre-trial loss of earnings	50,000.00
3.	Future loss of earnings	11,025.00
4.	Special damages	0.00
5.	Future medical expenses	3,750.00
		0.00
		-----------
	Total :	64,775.00

PSLA

26. The plaintiff was admitted to the Queen Mary Hospital for treatment after his eye was injured.  He was found to have suffered from right corneal abrasion at central region.  On 13 September 2003 medical examination showed that the corneal abrasion was still present.  The visual acuity test on the same day showed that the right eye was 6/60, the left eye was 6/7.5.  The eyesight of the right eye was later improved.  The medical examination on 6 December 2003 showed that the right visual acuity was 6/6.  However, the plaintiff still complained of episodic attacks of right eye pain and persistent blurred vision on the right eye.  The attacks were controlled by lubricating eye medication.  He also complained of sleep disturbances including insomnia, concentration problems and depressive mood. 

27. The judge described the plaintiff’s injury as a minor injury.  In coming to his finding the judge had ignored two matters which in my view affected his assessment.  The first which is a more important one is that the judge had completely ignored the evidence from a psychiatrist.  The plaintiff had since 27 October 2004 been attending the psychosomatic clinic of the Caritas Medical Centre (‘Caritas’) for treatment.  He was referred to that clinic for assessment of depressive mood by the general practice clinic of Caritas where he had received treatment of his eye injury.  The medical report of Dr. Chau of 15 April 2005 stated that,

‘ During assessment, symptoms of post-traumatic stress disorder including reliving of the scene of injury in the form of flashback and nightmare, avoidance behaviors in work related to metal pins, hypervigilance, irritability, impaired concentration, insomnia were found.  In addition, depressive features like low mood, inability to enjoy, social withdrawal and poor appetite were present. 

The impression is that he is suffering from post-traumatic stress disorder.  Antidepressants and hypnotics were started.  He was also referred to clinical psychologist for psychological treatment.  His drug compliance was reported to be satisfactory and he was less irritable, sleeping better and had fewer nightmares after drug and psychological treatment.  He had five follow-up attendances so far.  When he was last seen on 23 February 2005, his mood remained low with residual symptoms like nightmares, avoidance, low mood, inability to enjoy, social withdrawal, poor sleep and poor appetite.  Fluoxetine 40 mg daily and Valium 5 mg at night were prescribed.

28. Dr. Chau concluded :

‘ Mr. Chow still suffers from mild residual symptoms of post-traumatic stress disorder, with moderate risk of decompensation under stressful conditions.  Accommodation or different job would not significantly attenuate psychological impairments.  Continuing treatment and support are likely.’

29. Second, the judge had not considered the possibility that the plaintiff was suffering from a condition called recurrent cornea erosion.  This means the cornea surface healed after the injury but is not secured enough and it can be broken up easily resulting in pain and blurred vision occasionally.  Although the plaintiff’s own expert, Dr. C C Liang, could not confirm this diagnosis when he examined him on 8 September 2004 because as he put it ‘I have to see a broken-up surface on his right eye cornea during his attack’, he did say such condition is not uncommon after an injury and the history of the plaintiff is compatible to the diagnosis.  Further, according to the defendants’ expert, Dr. Tsui Chung Wan, although the vision in the plaintiff’s right eye was normal ‘there is a possibility that Mr. Chow can suffer from recurrent corneal erosion, which is a known complication of abrading injury to cornea’.  This possibility may account for the eye problems experienced by the plaintiff after the initial injury had been healed.

30. While the injury sustained by the plaintiff is below the ‘serious injury’ category, the amount of damages should definitely be more than $50,000 awarded by the judge.  While the injured eye has healed, the psychiatric problem experienced by the plaintiff is a real one.  The fact that the plaintiff only sought treatment one year after the accident does not mean his problems are not genuine.  Very often in psychiatric cases, there is a long time gap for a patient to seek medical help after he had experienced psychiatric problems.  In my view the PSLA should be at $150,000.

31. Mr. Bharwaney relied on Ho Yee Mui v. Liu Hon Loong and others HCPI 649 of 1999, judgment dated 20 July 2000 in which $250,000 was awarded for PSLA to a plaintiff who had suffered minor physical injuries as a result of a traffic accident but had also suffered post-traumatic stress disorder as a result of the accident.  Ho Yee Mui was a more serious case where the plaintiff’s disorder was described to be mild to moderate.  She also had suicidal tendencies.  In this case the plaintiff had mild psychiatric symptoms.

32. Ms Tsang relied on Nam Cheuk Yin v. Ng Yim Hing t/a Best Choice Beauty Centre DCPI 357 of 2001 in which a plaintiff was awarded $8,000 for corneal abrasion and infected conjunctiva.  The plaintiff claimed that while she was receiving beauty treatment from the defendant the facial cream escaped into her eye and the defendant had rubbed her eye causing injuries to her eye.  This is a trivial injury as compared to a nail flying to the plaintiff’s right eye causing him to lose almost completely his eyesight before it was healed later on.

Pre-trial loss of earnings

33. The plaintiff claimed that after the injury, his ability to work was reduced.  His daily earning was reduced and the number of days he could work was also reduced.  He claimed that it was because of the episodic pain and persistent blurred vision he was not able to attend to minute and dedicated wood crafting work which required constant intensive eye attention. 

34. If the injury was merely that of the eye, one may of course be rightly sceptical of his claim.  However, with the psychiatric problem he also experienced at the same time, this could well explain his reduced ability to work.  The claim for pre-trial loss of earnings is justified. 

35. At the time of the accident the plaintiff was earning $700 per day for 26 days a month at a monthly earning of $18,200 per month.  Between 11 September 2003 to 25 September 2003 he was granted sick leave of 15 days.  The loss of wage was $10,500.  From 26 September 2003 to end of October 2003 he was unable to obtain gainful employment because of his injuries and disabilities.  Between November 2003 and March 2004 he worked as a renovation worker performing general carpentry work.  His salary was about $7,000 per month.  Since April 2004 he worked as a general carpentry worker on an irregular basis with a daily salary of about $550 per day and working an average of 22 days per month.  His average monthly income was about $12,100 ($550 x 22 days).

36. According to the plaintiff’s Revised Statement of Damages the claim for pre-trial loss of earnings was $170,100.  This is made up of $10,500 plus $364,000 ($18,200 x 20 months) less $35,000 (5 months’ wages from November 2003 to March 2004) and $169,400 (14 months’ wages at $12,100 per month from April 2004 to date of trial).

37. The plaintiff’s counsel at her closing submission revised the figure by claiming an average loss of $10,000 per month as the pre-trial loss of earning.  This was based on the evidence of the plaintiff that his pre accident wage including overtime payment was about $20,000 per month and his average income after the accident was between $8,000 and $10,000.  The $10,000 was also adopted by Mr. Bharwaney in his claim for partial loss of earning from 26 September 2003 to trial. 

38. In my view it is more appropriate to make the assessment based on the figures contained in the Revised Statement of Damages which was formulated about 3 months before the trial.  It did not include any overwork wages mentioned by the plaintiff in his evidence and the judge accepted $700 per day as his daily wage.  The award under this head is $170,100.

Future loss of earnings

39. The plaintiff was 32 years of age at the time of the accident.  He is now 34.  The plaintiff’s counsel conceded at the trial that the plaintiff would only seek a 3-year loss of future earning instead of the original multiplier of 12.

40. In my view this period of time is consistent with the nature of the injury sustained by the plaintiff.

41. The loss of earnings claimed by the plaintiff in the Revised Statement of Damages was $3,900 per month which was the difference of $18,200 wages as a master carpenter and $14,300 as wages of the plaintiff doing general carpentry work.

42. In my view a more realistic approach is to use the actual earning of the plaintiff at $12,100 for the substantial period between April 2004 and June 2005 as the basis of calculation.  The difference of $18,200 and $12,100 is $6,100. 

43. The award under this head is $6,100 x 12 months x 3 years = $219,600.

Loss of earning capacity

44. At the trial, the plaintiff was seeking a sum of $80,000 for loss of earning capacity.  He is now only 34 years of age.  He has a lengthy working life ahead of him of at least another 26 years.  This sum of $80,000 represents a very modest compensation of about $3,000 per year or 6.6 months of his current monthly earning of $12,100.  He is not a completely healthy man and in all probabilities would suffer some handicap in the labour market.  In my view this sum is justified. 

Mandatory Provident Fund

45. There shall also be a loss of the mandatory provident fund at 5% based on the total award of the pre-trial and future loss of earnings. 

The award

46. The total amount that the plaintiff is entitled to is as follows :

	$
PSLA	150,000
Pre-trial loss of earnings	170,100
Loss of pre-trial MPF benefits	8,505
Other special damages	3,750
Future loss of earnings	219,600
Loss of future MPF benefits	10,980
Loss of earning capacity	80,000
	---------
Total :	642,935

Interest

47. There shall be interest of 2% per annum on damages for PSLA from the date of service of the writ to the date of judgment and at half of the current judgment rate at 4.123% per annum on pre-trial special damages, pre-trial loss of earnings and pre-trial loss of MPF benefits from the date of accident to the date of the judgment.

New evidence

48. The plaintiff has asked for leave to rely on the certificate of assessment issued pursuant to the Employees’ Compensation Ordinance by the Employees’ Compensation (Ordinary Assessment) Board (‘the Board’) on 1 September 2005 in which the Board assessed the loss of earning capacity of the plaintiff at 22.5%.  The annex of the certificate also showed the plaintiff’s absence from duty necessary as a result of the injury from September 2003 to August 2005. 

49. Clearly the relevance of this certificate is for the purpose of calculating the employees’ compensation benefits that the plaintiff is entitled.  In the circumstances I will not admit the certificate as new evidence.  In any event, there was sufficient evidence before the judge which justified the finding that I have just made.

Conclusion

50. The appeal is allowed.  There shall be judgment for the plaintiff as stated above with an order nisi that the plaintiff is to have the costs below and of the appeal and plaintiff’s own costs is to be taxed in accordance with Legal Aid Regulations.