WONG KIM HUNG by his next friend HIU SJU PHIN v. WONG WING KONG t/a 613 DECORATION WORKS AND OTHERS

HCPI 421/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 421 OF 2010

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J U D G M E N T

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Introduction

1.  The plaintiff (Mr Wong Kim Hung) fell from height whilst working at a suspended ceiling.  He sustained serious personal injuries which turned him into a mentally incapacitated person (“MIP”).  Through his wife as next friend, the plaintiff claims damages for personal injuries.

2.  The 1^st defendant was his elder brother, employer and a sub-contractor of the 2^nd defendant.  The 2^nd defendant was the main contractor.  The 1^st and 2^nd defendants (collectively “the defendants”) have since March 2013 failed to appear in these proceedings. The 3^rd defendant (“the Board”) has stepped in since 20 March 2013.

3.  Notices of trial have been served on the last known addresses of the defendants which have not been returned.  I therefore proceeded with the trial in their absence.

4.  The Board has come to terms with the plaintiff, which will be set out in paragraphs 39 and 40(4) below.  Accordingly, this hearing is only for the plaintiff to strictly prove his case against the defendants.

Findings of fact

5.  The plaintiff has not made a witness statement.  At this hearing, his wife and 3 co-workers gave evidence, confirming their witness statements and interview records to the Labour Department respectively, which I accept as truthful.  The plaintiff also relies on the judgment of Deputy Judge Lo in DCEC 872/2009 (“the DCEC judgment”) involving the plaintiff and the defendants.  Since the defendants are absent, the witness statements they have filed in the present action will be disregarded.

6.  I am satisfied from the statements of the plaintiff’s witnesses, the DCEC judgment and documentary evidence placed before me (including the defendants’ statements to the Labour Department) that the facts are as follows.

7.  On 13 August 2007, the plaintiff was working at a construction site at the 2^nd floor, Memberside Grandstand I of the Shatin Racecourse (“the site”).  He was supposed to dismantle and remove an LED display board from a suspended ceiling and/or metal platform (“the suspended ceiling”) on top of a betting counter at the site.

8.  The LED display board consisted of several LED display panels which were mounted on a metal frame structure on the suspended ceiling, which was about 2.07 metres above ground level.

9.  The LED display panels had already been detached from the metal frame structure and were being placed on the floor.

10.  The plaintiff and his co-workers were to dismantle the suspended ceiling, the dimensions of which were 3.96 metres in length, 0.35 metre in width and 0.76 metre in height.  Owing to the bulky size of the subject matter, the plaintiff was crouching on the suspended ceiling, intending to turn it from a vertical to horizontal position and cut the same into smaller pieces.  It required him to exert certain degree of force on the suspended ceiling.  In the course of so doing, the plaintiff lost balance and fell from a height of about 2.07 metres together with the metal frame structure, which in turn hit the plaintiff’s chest, mouth, nose and head.  He lost consciousness.

11.  The report of the Labour Department summarized the situation at the time of the accident as follows:

(i) There was no guard rail and/or safety fence at the top of the betting counter.

(ii) Only simple portable tools were found at the scene and there was no working platform but only folding ladders.

(iii) There had been no risk assessment and safety measures for the subject dismantling work.

(iv) The workers were not informed as to the measurements and weight of the LED display and the method and procedure to dismantle the same, nor were they told of relevant safety measures and precautions. 

(v) There was no one to supervise the operation and the workers were left to decide on their own.

12.  As disclosed from the evidence of PW1 Wong Ka Pong and PW3 Chan Ming, there was a tool shed inside of which were working tools and materials for setting up a working platform.  The workers could freely enter to fetch the tools they needed.  A working platform could be easily set up.  It would only have taken one to two persons about 10 minutes to transport the working platform from the car park by cart and then by elevator to the site.  However, at the time of the accident, the plaintiff had not used a working platform. Nor had he worn a safety belt.

13.  As a result of the accident, the plaintiff sustained multiple injuries. He was rushed to the hospital.  He had deep laceration of about 8 cm on his forehead and multiple bruises on his right chest.  Intracranial haemorrhage was found on computerized tomography of his head.  He was put into the neurological ward.  He stayed in the intensive care unit for 3 days and had lost consciousness for 4 weeks.  He remained hospitalized until he was discharged 4 months later on 14 December 2007.  He was granted sick leave for about 3 years from 13 August 2007 up to 30 July 2010.  He has become an MIP and is wheelchair bound.  He has lived in an old age home since discharge from the hospital.

Liability

14.  The plaintiff sues in negligence, breach of implied employment terms, breach of statutory duties and/or breach of common duty of care.

15.  The defendants aver that that a safe working platform had been provided to the employees at the site.  The 1^st defendant has provided proper and necessary equipment for the workers to perform the dismantling work in question.  The plaintiff was an experienced worker and had sufficient training and experience to handle the dismantling work.  The 1^st defendant has deployed 4 workers to assist him.  In the premises, the 1^st defendant has provided a safe system and safe place of work for the plaintiff.  The defendants aver that the plaintiff has contributed to the negligence.

16.  As found by Deputy Judge Lo in the DCEC judgment, the plaintiff was working in the course of employment by the 1^st defendant.  The 2^nd defendant was the main contractor. 

17.  Notwithstanding the availability of a working platform, there was complete lack of supervision of work by the defendants.  Merely oral general reminders were given to the workers to beware of safety.  Although 4 workers (apart from the plaintiff) were available, the 3 witnesses of the plaintiff were only summoned to assist after the plaintiff had started the dismantling work.  That could not have been a safe system of work.

18.  The 1^st defendant has been convicted of the offences of failure to ensure the safety of his employee and failure to provide systems of work that are safe and without risks to health, contrary to sections 6(1), 6(2)(a) and 6(3) of the Occupational Safety and Health Ordinance, Cap 509.

19.  I am satisfied from the totality of the evidence, in particular the summary of findings of the Labour Department, that the defendants were negligent and breached the common duty of care and statutory duty for which the 2^nd defendant is also liable.  The defendants have not come forth to establish contributory negligence and I take no account of this part of the defence. Liability is established against the defendants.

Quantum of damages

20.  The plaintiff was born on 20 September 1950 and was aged 56 years at the time of the accident.  He is now aged 63.  He used to be a construction worker before the accident.

Medical findings

21.  The single joint expert (Dr Yu) has prepared a report for the plaintiff and the defendants (while they were represented) on 17 August 2011. Subsequently, Dr Yu and Dr Woo for the Board have prepared another medical report on 19 June 2013.  

22.  The experts are agreed that the plaintiff had severe head injury with loss of consciousness for about 4 weeks.  He had intracranial haemorrhage and multiple fractures of the skull.  Intracranial pressure monitoring and intensive care was required.  As a result he experienced dizziness, neurocognitive and neurobehavioural impairments, mild dysarthria and weakness and clumsiness of both upper limbs and right lower limb.

23.  Dr Yu assessed the permanent impairment of the whole person at 35% and Dr Woo at 33%.  The plaintiff’s loss of earning capacity is 100%.  He is a MIP incapable of managing or administering his own properties and affairs.

24.  The plaintiff still suffers from numbness of the right limbs, pain in the left side of the neck, slow response, bad memory and dizziness.  It was not appropriate for him to stay alone at home; he would not be able to summon help if there was an accident at home.

25.  The combined effect of the doctors’ views is that since the plaintiff has been seizure free for 6 years, the risk of developing post-traumatic epileptic seizures is small.  There is no further treatment indicated unless he develops seizures.

26.  Dr Woo is of the view that life expectancy of the plaintiff will be reduced, on the bases of his age, severity of head injury and co-morbid medical diseases, to not more than 75% of the normal population, ie 14 years from mid 2013.

27.  The views of the doctors, which I accept, are not far apart and the differences do not have impact on the final outcome of this case.

PSLA

28.  Mr Szeto seeks the amount of HK$700,000, which is the sum the Board agrees to pay.

29.  I have considered the medical findings and the wife’s evidence.  The plaintiff is now living in an old age home.  He has further follow up at the neurological ward and outpatient clinic.  He is able to walk with aid on level ground.  He can perform feeding and toileting by himself but he requires assistance in dressing and bathing.  He can no longer read the news on horse racing and place bets on horses as he did before the accident.  At the old age home, he still played majong and chess with his inmates.

30.  I have considered the following cases:

(i) Hui Yiu Wing v Regional Council, HCPI 31 of 1998, Chung J, 24.2.2001: the plaintiff, aged 12 at the time of the accident, was injured when a basketball post board collapsed striking his head.  He sustained fracture of skull base, traumatic subarachnoid haemorrhage and intracranial air.  He developed hyponatraemia and convulsion, with verbal and intellect impairment.  He suffered 20% of impairment of the whole person and another 2% impairment for the risk of epilepsy.  His loss of earning capacity was at least 50%.  He was awarded $800,000.

(ii) Ngan Man Yuk v Lau Kwan Him, HCPI 1263 of 2003, Master Hui, 28.2.2005: the plaintiff, aged 43 at the time of the accident, was knocked down by a public light bus.  CT scan of brain showed left acute subdural haematoma and left fronto-temporal contusion.  Emergency right burr hole for ventricular drainage, and emergency craniotomy were done for abscess drainage.  She suffered from subsequent epileptic attacks and severe impairment of cognitive functions, perception, memory, thinking and language as a result of her brain injury.  He had impaired speech and headaches.  She could not manage her own affairs.  She was awarded $800,000 for being in the substantial injury category.

(iii) Law Ping Leung v Ng Sze Pong [2009] 5 HKLRD 426: the plaintiff was knocked down by a public light bus whilst walking.  He regained consciousness only after about 10 days’ hospitalization.  He had contusion over the right temporal region with traumatic subarachnoid haemorrhage, skull base fracture, a fractured right clavicle and bilateral lung contusion with pneumothorax. He stayed in ICU for 2 weeks.  The plaintiff’s thinking process and memory had been substantially impaired and responses to verbal communication was slow.  He had mild dysphagia (difficulty in swallowing) and mild left hemiparesis (weakness of one side of his body). He had personality change.  His neurocognitive and neurobehavioural impairment made it unlikely that this mental capacity was sufficient to manage his personal and financial affairs.  He was awarded $1.1 million for being in the gross disability category.

31.  The plaintiff’s injuries fall into the gross disability category, ie “injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes.”  See Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.  The claimed sum of $700,000 is acceptable having regard to the age of the plaintiff.

Pre-trial loss of earnings

32.  The plaintiff seeks 72 months of loss with MPF.  I am satisfied from his salary returns and findings in the DCEC case that his average monthly income was $12,320 (ie $560 per day x 22).  I am satisfied that the amount of $931,932 (ie $12,320 x 72 months x 1.05) is appropriate.

Future loss of earnings

33.  The plaintiff is now aged 63.  According to the joint medical reports, he has completely lost his earning capacity.  I am satisfied that an award of future loss of 12 months with MPF is appropriate and I award the sum of $155,232 (ie $12,320 x 12 months x 1.05).

Wife’s loss of earnings

34.  The wife has worked in a bakery as odd job worker between June 2007 and December 2008 at a daily rate of $23 (about $4,663 per month).  She had to quit her job in December 2008 to take care of the plaintiff and relied on comprehensive social security allowance.  She plans to resume her work since the plaintiff has settled down at the old age home.  The current rate for a similar worker at her former employer’s is $32 per hour.  She seeks loss of earnings based on a monthly average of $5,800 with MPF, ie $45,674 (ie $5,800 x 7.5 months x 1.05).  I consider that to be reasonable.

Future accommodation

35.  It is expected that the plaintiff will continue to reside in an old age home in the years to come.  With government subsidy, he will be paying $2,400 per month (including residential and miscellaneous expenses).  An award of $374,400 (ie $2,400 x 12 months x 13) is appropriate.

Special damages

36.  The wife has spent money on tonic food and travelling allowance to and from the hospital claimed at $11,600 and $5,000 respectively.   Based on the receipts, and travel cost per person per trip to hospitals, I am satisfied that an award of $92,177 as claimed is appropriate.

37.  I summarize the award as follows:

	HK$
PSLA	700,000
Pre-trial Loss of Earnings	931,932
Future Loss of Earnings	155,232
Wife’s Loss of Earnings	45,674
Future Accommodation	374,400
Special Damages	92,177
Gross Total	2,299,415
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38.  For the avoidance of doubt, credit should be given for any employee’s compensation received by the plaintiff but I understand that the amount of $688,185.50 awarded in the DCEC judgment has not yet been paid.

The claim against the Board

39.  The Board has agreed to pay a round sum of $2,250,000 to the plaintiff should he apply under section 20A of the Employees’ Compensation Assistance Ordinance, Cap 365 when he is unable to recover the damages awarded from the defendants.

Conclusion

40.  I order as follows:

(1) Judgment for the plaintiff in the sum of HK$2,250,000 be entered against the 1^st and 2^nd defendants.  For the avoidance of doubt, credit shall be given for employees’ compensation awarded in DCEC 832/2009 and received (if any) by the plaintiff in respect of the subject accident.

(2) The 1^st and 2^nd defendants shall pay costs of the whole action (including all costs reserved and inclusive of costs of setting up a committee under the Mental Health Ordinance Cap 136 if applicable) to the plaintiff, such costs are to be taxed if not agreed on common fund basis.

(3) The 1^st and 2^nd defendants shall pay costs of the whole action to the 3^rd defendant, such costs are to be taxed if not agreed.

(4) Without prejudice to paragraphs (2) and (3) hereof, the 3^rd defendant shall pay to the plaintiff costs of the action (including all costs reserved) inclusive of costs of setting up a committee under the Mental Health Ordinance Cap 136 (if applicable) only from the date of joining-in (ie from 20 March 2013), such costs are to be taxed if not agreed on common fund basis.

(5) The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

(6) There be liberty to apply.

Others

41.  I urge the profession to make copies of only those documents that are necessary for the resolution of the dispute.  This will be costs saving and environmentally friendly.  In this case, I have specifically asked the plaintiff’s solicitors to re-use the set-down bundle with necessary updates and use double sided printing.  In the end, this was not properly done.  The defence of the defendant was placed in another bundle.  The supplemental witness statement of the wife was not put together with her original witness statement.  The bundles have to be re-done, costs were wasted and the court’s reading of the papers before the hearing was hindered.  In addition, there had been indiscriminate copying of useless documents, eg 35 pages of an amended writ of summons containing the blank forms for acknowledgement of service and Form 16C which are entirely useless except perhaps the first 2 pages of the amended writ, 2 sets of Labour Department investigation report duplicated, empty pages with only pagination, duplicate black and white copies of photos with blur images.  The taxing master will of course take all these into consideration.

42.  I thank Mr Szeto and Ms Loh for their assistance.