NGUYEN VAN VINH v. CHEUNG YING CONSTRUCTION ENGINEERING LTD AND ANOTHER

HCPI 1173/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1173 OF 2004

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Introduction

1.  The plaintiff, Mr Nguyen Van Vinh, is claiming damages for personal injury arising out of a serious eye injury that he sustained at the 2^nd Defendant’s building site at 377, Prince Edward Road, Kowloon where a luxury residential block of flats was being built.  The 2^nd Defendant was the main contractor and the 1^st Defendant its sub-contractor to whom it had delegated the task of erecting and dismantling wooden formwork into which concrete would be poured as part of the building process.

2.  The Plaintiff, who is Vietnamese, came to live in Hong Kong in 1989.  He was born in December 1971 and is therefore now aged 36.  He was injured on 17 May 2003 then aged 32.  The 1^st Defendant had employed him as a general casual worker on the site during the day at a daily rate of $500 and after usual working hours it engaged him, as, on its case, an independent contractor, disputed by the Plaintiff who alleges that he remained its employee throughout, to remove the nuts and bolts that held the wooden formwork boards together.  As I will describe more fully in a moment, he was injured at about 11 p.m. when he was hammering at a screw as a result of which, he thinks, a concrete chip bounced up from the force of the hammering and entered his left eye as a result of which he is now, for all intents and purposes, blind in that eye which according to him has resulted in him being unable to return to any sort of employment, save for three very short spells of work, since the date of the accident some five years ago. 

3.  At the trial, he has had to represent himself, his legal aid certificate, under which he had been represented by experienced solicitors in this type of case, having been discharged some time ago.  Fortunately, when those solicitors were on the record they were able to prepare and file his pleadings, his witness statements and obtain a medical expert’s report and prepare and file on his behalf all the other documentary evidence.

4.  The statement of claim pleads the case against both Defendants based on negligence at common law and under the Occupiers Liability Ordinance for breach of the common duty of care owed to the Plaintiff as a lawful visitor.  The main complaint under these two heads of claim are a failure to provide the Plaintiff with goggles or other protective eye-wear.  Additionally, as appears in the statement of claim [Bundle 1, pages 1-13] there are other pleas based on breaches of statutory duty and at common law to provide a safe system of work and to provide adequate training and equipment.  Without in any way detracting from those pleas, the real complaint is the failure to provide goggles which must form the mainstay of the Plaintiff’s case on liability.  The case therefore falls to be considered with this allegation very much at its core.

The Issues

5.  Mr Lin, for both Defendants, has correctly identified the main issues which bear on liability.  They are these:  Firstly, whether at the time of the accident, the Plaintiff was an employee or an independent contractor of the 1^st Defendant.  If he is held to have been an employee, whether the 1^st Defendant had provided and maintained a safe system of work and a safe place of work.  Further, whether the 1^st Defendant was in breach of sections 6(1) and (2) and 7(1) of the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”).  These provisions refer to an employer’s obligation to ensure the safety and health of employees whilst at work and to ensure that the place of work was safe without risk to health.

6.  In the event that the Plaintiff was an independent contractor, then the duties of both of 1^st and 2^nd Defendants is limited to the common duty of care and the court would need to consider whether either or both of them is in breach of that duty.

7.  As to the 2^nd Defendant only, consideration would need to be given to Regulation 38A Construction Site (Safety) Regulations (Cap.59) (“CSSR”) as to whether this regulation applies to such an accident and, if so, whether the 2^nd Defendant is guilty of a breach of it.  Regulation 38A requires the 2^nd Defendant, as principal contractor responsible for this building site, to ensure that every place of work has been made and kept safe whilst the plaintiff was working there.  Additionally, consideration would need to be given to Regulation 43 of the CSSR which requires suitable goggles or effective screens to be provided for the Plaintiff’s protection.  The issue here is whether these regulations are applicable to the type of work being done at the time by the Plaintiff.

8.  Finally, if the Plaintiff succeeds in establishing liability against either or both Defendants, I would need to consider whether he has been contributorily negligent.

9.  Thereafter, Mr Lin has identified certain issues that call for resolution on quantum of damages which I will turn to presently.

Circumstances of the Accident

10.  I can take these from the Plaintiff’s witness statement [B2/159].  He says that he was working on the scaffold outside the external wall on the 8^th floor and hammering at a screw which was embedded into a formwork board, presumably to loosen it, when he felt something enter his left eye.  He believes it was a piece of concrete. This caused a sharp pain in his eye.  At first he did not think much of it.  It was just like sand entering the eye.  He was in hurry to get through the work and so he just carried on working, occasionally rubbing his eye to alleviate the pain.  In fact he worked through the night and through the next day leaving the site at about 6 p.m., in order to get through his work which should have finished by dawn and for which he had been told off by Ah Min, the foreman, for not having finished on time.

11.  In order to do the work of removing the nuts and bolts from the formwork, he and the person that he had engaged that day, a fellow Vietnamese lady, she being a late replacement because the two Vietnamese man that he had engaged let him down at the last moment were provided with hammers, spanners, a clamp and buckets.  These were provided by the 1^st Defendant who also provided safety helmets for each of them.  No goggles or protective eye-wear were provided although these were available in the 1^st Defendant’s tool room.  I will return to this aspect presently.

12.  On the following day, the pain had become so severe that he stayed at home and remained there until 21 May when he went to his local eye clinic for treatment from where he was sent to Tuen Mun Hospital.  The doctors discovered that he had sustained a large corneal abscess with extensive scarring for which he required in operation.  I will leave over his medical condition to when I come to the issue of damages.

13.  Against this background it is now possible to give specific consideration to the issues which will be determinative of the question of whether the Plaintiff has been able to prove a case of negligence and/or breach of statutory duty by either or both of these two Defendants.

Was the Plaintiff and Employee or an Independent Contractor?

14.  This is an important matter because if the Plaintiff was an independent contractor rather than an employee of the 1^st Defendant at the time of the accident then the 1^st Defendant would not have owed him the more onerous duty that an employer owes his employee, such as the duty to provide a safe system of work.

15.  There was no doubt that during the course of the ordinary working day from about 8 a.m. to 6 p.m., the 1^st Defendant and the Plaintiff were in the relationship of employer and employee, the Plaintiff being employed as a casual labourer working around the site at a daily rate of $500.

16.  As to the work of removing the nuts and bolts from the formwork, which had to be done after the usual work of the building site had ended, the 1^st Defendant’s case is that its relationship with the Plaintiff changed from a contract of service to one of a contract for services.  He became its independent contractor.

17.  The following would appear to be the evidence upon which it relies.  The Plaintiff was sub-contracted to work overnight to remove the nuts and bolts for a fee of $2,000 per floor of the building.  It was up to him how the work was to be done.  He was provided with the tools by the 1^st Defendant.  It was up to him to choose and pay for any assistance.  The usual method was to employ two other male helpers.  In this way the work would be done in about a couple of hours.  The time it took was of no concern to the 1^st Defendant provided it was all done by daybreak, soon after which the ordinary work on the building site would begin and workmen would then be able to remove the formwork boards, now no longer held in place by nuts and bolts which the Plaintiff and his helpers would have removed overnight.

18.  The Plaintiff has said that he expected to share the $2,000 by paying each of his two helpers $600, keeping $600 for himself and the remaining $200 would pay for food and drink for all three of them.  On this occasion, he had been let down by the two male helpers but had been able to find a lady called Toan to assist him.  She had done this type of work before, was competent but slower than the male workman.  Given that there were only two of them, and that she was slower, the work took very much longer and they could only complete it by working through the next day.  He would have paid her $400, but as she worked over the next day as well he paid her $800.

19.  The case therefore is put on the basis that the Plaintiff decided how the work would be done.  He organised it and employed his own staff whom he paid out of the $2,000 fee.  He could employ as many as he wished.  The more he employed the less would be left for him out of the $2,000.  The 1^st Defendant would not supervise him nor tell him how the work had to be done.  It merely provided the tools and expected the work to be finished by daybreak.

20.  The Plaintiff has, in his evidence, accepted that this was so, save that he has said, more than once, that during the course of the evening the foreman had telephoned him repeatedly to tell him to hurry up and to make sure the work was finished by daybreak.  When he found out that it was not finished he was very angry.

21.  Whether someone is an employee or an independent contractor is a mixed question of fact and law and there are many decided cases relating to this issue which bear on the test or tests that a judge needs to apply in coming to his decision.  Fortunately, since the Final Court of Appeal’s decision in Poon Chan Nam v Yim Siu Cheung (2007) 10 HKCFAAR 156 in which Ribiero PJ reviewed all the leading authorities, it is possible to, respectfully, look no further than his judgment, certainly in this case.  His Lordship had observed that in the Privy Council decision of Lee Ting Sang v Chung Chi Keung & Anr. [1990] HKLR 764 at 766G, Lord Griffiths had observed that whether a relationship of employer and employee existed in any particular case was an elusive question, he said:

“This has proved to be a most elusive question and despite a plethora of authorities the courts have not been able to devise a single test that will conclusively point to the distinction [between an employee and an independent contractor] in all cases.”

The oldest of the modern cases to which much respect has been accorded is the decision of Cooke J in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 where at 184-185 he proposed the following as the fundamental test:

“… the fundamental test to be applied is this” ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’  If the answer to that question is ‘yes,’ then the contract is a contract for services.  If the answer is ‘no,’ then the contract is a contract of service.  No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.  The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

In the case of Hall v Lorimer [1992] 1 WLR 939 at 944, Mummery J (as he then was) considered that:

“In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity.  This is not a mechanical exercise of running through items on a clerk list to see whether they are present in, or absent from, a given situation.  The object of the exercise is to paint a picture from the accumulation of detail.  The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole.  It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.  Not all details are of equal weight or importance in any given situation.  The details may also vary in importance from one situation to another.”

For his part Ribiero PJ at page 167 supra analysed the situation in this way:

“The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked.  It involves a nuanced and not a mechanical approach, …”

22.  Applying this approach to the facts of this case, I have come to the conclusion, in this unusual case, that whilst the Plaintiff was an employee by day, he was an independent contractor of the 1^st Defendant when doing this work, in the course of which he suffered his very unfortunate injury.  It seems to me that the Plaintiff had been engaged to be his own man, in terms of how to do this work within the parameters that it should be finished by daybreak.  He was provided with the tools and told to get on with it in his own way for an all-in payment of $2000.  He could employ as many persons as he wished to assist who he would have to pay out of the $2000.  Two other workmen were considered the ideal, balancing profit with effectiveness in completing the task in good time.  It was up to him to organise how the work would be done.  Accordingly, I intend to proceed on the basis that he was an independent contractor. 

Should Goggles have been Provided?

23.  It seems to me that the nature of the work is not such that goggles ought to have been provided.  This type of work is not caught by the provisions of Regulation 43 of the CSSR which circumscribes the type of work for which protective eye-wear should be provided.  The Plaintiff himself, who has some experience of this kind of work — he has done it many times before — has said that he did not see the need to wear goggles.  When he had undergone safety training he had been told that goggles were only required when things might fly off such as when chiselling.  He said that, “so far as I am concerned I did not see the need to wear goggles when removing nuts and bolts”.  Whilst this comment from an experienced workman like the Plaintiff is by no means conclusive it is something to bear in mind, as is the fact that a requirement to wear protective eye-wear does not appear for this kind of task in Regulation 43 CSSR. Regulations such as these have been devised with the reasonable safety of the workman in mind having regard to past experience and what might be a reasonably foreseeable risk in the course of this type of work.  The draftsman of such Regulations look to establish what might be properly described as best practice for the industry.

24.  Whilst each case needs to be decided on its own facts, it seems to me that much assistance is to be derived from the remarks of Sears J in the case of Keung Wai Ming v Yew Chow Anr. (1987) A 3270 and applied by me on very similar facts in the case of Mo Po v Yat Fai Engineering Ltd, HCPI 405/2005 (unreported 10 April 2006).  In that case I referred to Charlesworth and Percy on Negligence 10-44 at page 781:

“Provision of protective device or clothing with or without advice, warnings or orders.  If the nature of the work is such that a reasonable employer would provide his workmen with some protective device or clothing while doing the work, there is a duty to provide it and to take reasonable care to see that it is used.  The extent of such a duty necessarily depends on a number of factors, which include: (i) the risk of injury; (ii) the gravity of potential injury; (iii) the difficulty of providing protection; (iv) the availability of protective clothing; (v) the distance which an employee may have to go to fetch such clothing; and (vi) the employee’s skill and experience.”

and also from the speech of Lord Reid in the Wagon Mound as referred to by Keith JA (as he then was) in Wong Wai Ming v The Hospital Authority, CACV 86/2001:

“8.   An employer is under a duty to its workforce to take reasonable care for their safety.  Where one employment happens to be more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk of danger, it is required to take reasonable precautions to reduce the risk as far as possible: see Charlesworth & Percy on Negligence, 9^th ed., para. 10-83.  However, an employer is not required to take reasonable precautions to remove every risk which might confront its workforce.  In a classic statement of the relevant principles, Lord Reid said in the Wagon Mound (No.2) [1967] AC 617 at pp. 642E-643A”

‘… it does not follow that, no matter that the circumstances may be, it is justifiable to neglect a risk of … a small magnitude.  A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk.  He would weigh the risk against the difficulty of eliminating it.  … [T]he general principle [is] that a person must be regarded as negligent if he does to take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.  …[I]t is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his negligence, would think it right to neglect it.”

25.  In applying what Lord Reid had said (supra) about the evaluation of risk, it seems to me that for the kind of work the Plaintiff was performing, an injury of this kind was simply not foreseeable or at best only “a mere possibility, which would never influence the mind of a reasonable man”.  This being my view, I conclude that there was no need and, therefore no duty, on the 1^st Defendant, nor the 2^nd Defendant to provide the Plaintiff with goggles.

26.  In the end, this very sadly, given the seriousness of the injury to the Plaintiff, was an accident for which nobody is to blame.  The equipment provided was adequate to the task, the place of work was safe and, even if the Plaintiff had been an employee, the system of work devised was perfectly safe for the type of work being performed.

Conclusions on Liability

27.  In such circumstances, I can discover no basis for finding either of these Defendants culpable in the various ways that the case has been pleaded against them.  There has been no negligence nor any breach of statutory duty by either of them and accordingly, the action must fail and there must be judgment for both Defendants.  Given my reasoning, it is not appropriate nor helpful for me to say, had I found the Defendants’ negligent, whether the Plaintiff should suffer a discount in his damages for being contributorily negligent.  Such an exercise, given my finding on liability, would be meaningless.

Quantum

28.  In the event of an appeal, I hope that it would be found helpful if I provide an indication of the damages that I would have awarded the Plaintiff had he succeeded.

Pain, Suffering and Loss of Amenity

29.  The Plaintiff has effectively lost the sight in one eye.  Mr Lin has provided me with some comparables which he suggests indicate an award of $400,000.  I would have thought that the cases of Hang Huu Duc v Hanbo Engineering Ltd, HCPI 172/2004 and Ho Yam Pan v Tse Tak Ming, HCPI 91/1996, which involved the total loss of one eye are the best comparables, where awards of $550,000 and $450,000 respectively were made.  The Plaintiff’s left eye is effectively useless to him.  I would have awarded $500,000 under this head.  I would not have taken account of the Plaintiff’s alleged present complaints, unsupported by any medical evidence of recurring severe pain and resulting depression, requiring psychiatric and psychological intervention up to the present and continuing.  Although I appreciate that the Plaintiff has been unrepresented for some time, he ought to have taken the trouble to obtain some medical note to substantiate what he says.  He has not and so I am not prepared to and indeed cannot attempt reliably to have regard to these complaints by him.

Loss of Earnings

30.  I prefer the 1^st Defendant’s evidence that comparable workmen to the Plaintiff would have worked 21 days a month when employed by it, rather than 26 and so I take his pre-trial earnings at $10,500 a month.  From the medical evidence, it is agreed that he should have been able to return to a less well-paid job earning about $7,500 a month giving a continuing loss of $3,000 a month.  A proper multiplier, given his age, would be 13 years.  I take loss of earnings from the date of the accident to the expiry of sick leave to be $87,885 being $10,500 for 7 months sick leave which is agreed by both medical experts plus $10,200 for irregular overnight work plus MPF.

31.  Thereafter, partial loss of earnings at the rate of $3,000 a month from 11 December 2003 when his sick leave expired, to the date of trial [May 2008] being 53 months plus MPF, which come to $166,950. 

32.  Further loss of earnings would have been $491,400 calculated as 156 months (13 years) multiplied by $3,000 a month plus loss of MPF.  I would not have made an award for loss of earning capacity.  Firstly, he is not at present in employment and, there is no evidence that he will be at risk of losing any employment on the basis of any disability, in circumstances where I have not accepted the Plaintiff’s reasons for not being able to return to work based on his claim of severe recurrent pain and resulting psychiatric and psychological treatment which I have not accepted in the absence of medical evidence to support such a claim.

Other Special Damages

33.  These are as the Plaintiff has claimed them in the total amount of $14,060.

Summary

PSLA	$500,000
Loss of Earnings	$746,235
Special Damages	$14,060
Less Employees Compensation	$302,000

To this, interest would have been awarded at the appropriate rates and for the appropriate periods.

Costs

34.  I award the Defendants, their costs of the action to be paid by the Plaintiff.  There will also be legal aid taxation of the Plaintiff’s costs for the period when he was in receipt of a legal aid certificate.  In the usual way, this order for costs will be an order nisi.