TAM KAM FAI v. MICHAEL J DESIGN LTD AND OTHERS

HCPI 347/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 347 OF 2005

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J U D G M E N T

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Introduction

1.  On about 19 March 2002, by “Contract Documents for fitting out works of the Boys' and Girls' Clubs Association of Hong Kong (“the Employer”) at Sau Mau Ping Integrated Services Centre at Sau Mau Ping III Estate – G/F, Sau Lok House, Sau Mau Ping, Kowloon, HK”, the 1^st defendant contracted with the Employer to carry out “fitting out works ... at Sau Mau Ping Integrated Services Centre at Sau Mau Ping III Estate – G/F Sau Lok House, Sau Mau Ping, Kowloon, HK” for the sum of $3,670,000.

2.  On about 2 April 2002, the 1^st defendant sub-contracted part of the fitting out works, i.e. electrical, MVAV and P & D installations, to the 2^nd defendant.  The caption of the revised quotation dated 2 April 2002 is “Renovation Work for Children & Youth Integrated Services Centre at G/F Sau Lok House, Sau Mau Ping, Kln.  MVAV, Electrical and P & D System installation” and the consideration was $753,500.

3.  The 2^nd defendant sub-contracted all the works to sub-sub-contractors, one of which was the 3^rd defendant who agreed on about 3 April 2002 to install 15 duct-connecting split-system air-conditioners, 3 wall-mounted split-system air-conditioners and 4 window unit air-conditioners for the sum of $72,000.  The place of work was “The Boys' and Girls' Clubs Association of Hong Kong Sau Mau Ping Estate Phase III”.

4.  By a Temporary Contract of Employment said to be made on 1 April 2002, the 3^rd defendant employed the plaintiff as air-conditioning repairing technician” from 1 April 2002 at the monthly salary of $15,000 to work 9 hours per day and 6 days per work, except on statutory holidays.

5.  The Employer occupied part of the ground floor of Sau Lok House, a public housing estate.

6.  On 3 June 2002, the plaintiff fell from the first floor of Sau Lok House. 

7.  In 2005, he commenced this action against the 3 defendants.

8.  On 10 June 2005, judgment in default of notice of intention to defend was entered against the 1^st defendant for damages to be assessed.

9.  By Order dated 25 August 2005, Master B. Kwan ordered, among others, that:-

“2. No expert evidence as to liability shall be adduced in written or oral form save in the form of the report of Chan Yat Fat, Occupational Safety Officer dated 16th August 2002 and/or the oral evidence of the said Occupational Safety Officer;

3. The photographs taken by Department of Labour are agreed and are to be admitted in evidence at trial without calling the photographer”.

10.  At trial, counsel for the plaintiff, counsel for the 2^nd defendant and counsel for the 3^rd defendant agreed PSLA at $600,000 and 12 as the multiplier.

The Site

11.  Although the contract documents between the 1^st defendant and the Employer contained no definition of “the Site” or the place of the works, it is clear from the nature of the works, i.e. fitting out works, and the title of the contract documents that the site was the premises on the ground floor of Sau Lok House occupied by the Employer.

12.  As between the 1^st and 2^nd defendants, the caption of the revised quotation indicated that the site was at the ground floor of Sau Lok House.

13.  As between the 2^nd and 3^rd defendants, the place of work was the Employer's premises at Sau Mau Ping Estate Phase III, i.e. ground floor of Sau Lok House.  

14.  More importantly, “the Site” is defined in paragraph 1(a) of the Statement of Claim as:-

“a site of renovation work at The Boy's (sic) and Girl's (sic) Association of Hong Kong, Sau Mau Ping III Estate, G/F., Sau Lok House, Integrated Services Centre, Hong Kong”.

15.  Paragraphs 1(a) and 3 go on to allege that the 1^st and 2^nd defendants were occupiers of the Site. 

16.  By paragraph 1 of its Defence, the 2^nd defendant adopted the terms as defined by the plaintiff in the Statement of Claim.

17.  By paragraph 1 of his Defence, the 3^rd defendant adopted the terms as defined by the plaintiff in the Statement of Claim.

18.  There is no allegation in the Statement of Claim that the 2^nd defendant was an occupier of the canopy, or any part of the canopy, on the first floor.  All that is alleged in respect of the canopy is that the plaintiff was instructed to work there and that he fell when walking along it, see paragraphs 3 and 5 which read as follows:-

“3. On 3rd June 2002, the Plaintiff was in the course of his employment with the 3rd Defendant and was instructed to work at canopy on 1st Floor of Sau Lok House facing Sau Mau Road of the Site (‘the Canopy').  The Plaintiff's duty was, inter alia, to install electrical cable and cable duct for the air conditioning system of the Site.”

“5. At about 5:00 p.m. of the same day when the Plaintiff was walking along the Canopy to the Exit, he slipped and fell from the Canopy through a distance about 4.9 metres to the ground (‘the Accident').”

The canopy and the place of accident

19.  According to the Accident Report prepared by the Labour Department, there was a canopy on the first floor of Sau Lok House facing Sau Ming Road.  The width of the canopy was 1.5 metres.  The edge of the canopy was totally unfenced, with only a short parapet of about 20 cm in height at its edge.  There was a door opening fitted with a metal gate at the end of the canopy.  There were some metal pipes and metal racks “found laying” across the canopy.  Some pools of water covered with mosses were also found on the surface of the canopy.  The plaintiff's working position was at the other end of the canopy, about 25 metres away from the exit of the canopy.  The plaintiff and his co-worker had been installing electrical cable and cable duct for air-conditioning systems from about 1:00 pm to about 5:00 pm on 3 June 2002.  After the appellant and his co-worker “had almost finished the electrical work”, they “tidied up their tools and walked away from their working position along the edge of the canopy to the exit, which was located at the opposite end of the canopy”.  None of the legal teams took the trouble of seeking from the Labour Department a coloured or better copy of the photographs attached to the report to show with clarity and greater precision the working position, the pond of water with moss and the position where the plaintiff fell.  It is barely sufficiently clear from the 1^st floor plan and the black and white copy photographs attached to the report that the place where the plaintiff fell was:-

(a) not his working position;

(b) quite some distance away from his working position; and

(c) not at the narrowest strip where the metal pipes and racks and heat exhaust units of split-type air-conditioners were.

20.  In his Declaration dated 16 July 2002, he indicated on photograph 1 that his working position was at one end of the canopy and that he fell from a position after he had passed the narrowest strip.

21.  In his Declaration dated 26 July 2002, he indicated on photograph 1 that his working position was at one end of the canopy and stated that he “did not need to work there” (there meaning the position where he fell from the canopy to the ground) and that he would pass there only when he entered and exited the canopy.

22.  In his testimony, the plaintiff insisted that the place where he fell was at the narrowest strip.  I reject his testimony because it is contradicted by his earlier Declarations and the Accident Report and also because he was not a credible witness. 

23.  In answer to the question why he was on his way out at about 5:00 pm when his hours of work were from 9:00 am to 6:00 pm, he said that he had finished work for the day.

24.  Based on the Accident Report and the plaintiff's 2 Declarations and the plaintiff's own testimony that he was on his way out at about 5:00 pm because he had finished work for the day, I find that the plaintiff had finished work on the day of accident and was on his way to the exit when he fell from a position which:-

(a) formed no part of his place of work;

(b) was quite some distance away from his working position; and

(c) was not at the narrowest strip where the metal pipes and racks and heat exhaust units of split-type air-conditioners were.

Claim against 2^nd  defendant

25.  The plaintiff sued the 2^nd defendant under the Occupiers Liability Ordinance, Cap. 314, and in negligence.

26.  The simple but fatal objection to the claim under the Ordinance is that there is no allegation in the plaintiff's Statement of Claim that the 2^nd defendant was an occupier of the canopy or any part thereof. 

27.  In any event, I am not satisfied that the 2^nd defendant was an occupier of the canopy at the place of fall which was not within the plaintiff's place of work.  All the witnesses testified that they had to get keys from the management office before they could access the canopy.

28.  I do not think the claim in negligence takes the plaintiff's claim against the 2^nd defendant any further.  As Mr Anthony Houghton, counsel for the 2^nd defendant, pointed out, it is not part of the plaintiff's pleaded claim that the 2^nd defendant came under a duty when it “became aware of a danger” in the access route.  The place of fall formed no part of the “work site” or the plaintiff's place of work.  The 2^nd defendant had sub-contracted the air-conditioning installation works to the 3^rd defendant, an ostensibly competent sub-contractor whom the 2^nd defendant had been using since 2000.  No authority has been cited to support the proposition that the employer of an independent and ostensibly competent sub-contractor owes the same duty of care to employees of the sub-contractor as the sub-contractor employer does.   The authorities which counsel drew my attention to suggested the contrary, see Chong Yiu Tat v Fong Man Chi, unreported, Reyes J., HCPI 742/2001, 24 December 2003, at paragraphs 14-20; Wheat v Lacon [1966] AC 552; D & F Estates Ltd v Church Commissioners for England [1989] AC 177 at p. 209 (contrary to Practice Direction 5.5 paragraph 5, counsel cited another report instead of the Law Reports); and Makepeace v Evans Brother (Reading) [2000] BLR 287 at pp. 289-290. 

29.  The plaintiff's claim against the 2^nd defendant fails and must be dismissed.

Claim against 3^rd defendant

30.  The 3^rd defendant was the plaintiff's employer.  His duty of care to the plaintiff extended to activities incidental to work such as leaving the workplace at the end of the work period, see Clerk & Lindsell on Torts, 19^th edition, paragraph 13-02 and the Scottish case of Bell v Blackwood Morton & Sons, 1960 S.C. 11 where the pursuer was injured while she was leaving her place of work on the 6^th floor via a staircase to go home after the end of the work period. 

31.  The 3^rd defendant realised the danger of passage along the canopy; chose to take up sub-contracting works; simply ignored the danger which he had actual knowledge of and sent the plaintiff to work on the canopy.  In my judgment, the 3^rd defendant is liable to the plaintiff. 

Plaintiff's contributory negligence

32.  In his testimony, the plaintiff came up with a new assertion.  He alleged that he told his boss that as there was some water and moss, it was quite dangerous and that his boss said “be a bit careful”.  If what the plaintiff asserted was true, this showed that he knew about the danger and that he had been told by his boss to be careful.  The canopy was on the plaintiff's pleaded case 1.5 metres wide.  With actual knowledge of the danger, he should have taken the greatest precaution about his own safety; should have taken care to see that the foot he put forward was resting on something solid before putting his weight on it; and should have walked slowly and carefully along the edge of the building block as far away from the parapet as possible, cf Wheat v Lacon at pp. 570 and 576.  The plaintiff made no allegation of having taken any care of himself.  He did not even walk as far away from the parapet as the geography permitted.  He simply ignored the known danger.

33.  I do not think his assertion was true but this does not help his case.  Any person taking proper of himself and having passed and re-passed the canopy a number of times before the accident would have realised the obvious danger presented by the water pond(s), the moss(es), and the absence of any fencing at the parapet.  Such person should have taken the greatest precaution about his own safety. 

34.  In my judgment, there was contributory negligence on the plaintiff's part.

35.  The only ratio put forward was 50:50.  In the absence of any argument against this ratio, I accept it.

Date for resumption of work

36.  The plaintiff was examined by Dr Yu Yuk Ling, the plaintiff's neurological expert, and Dr Edmund K. W. Woo, the 3^rd defendant's neurological expert, on 15 October 2004. 

37.  In Dr Yu's report dated 25 October 2004, Dr Yu opined that the plaintiff did not put on his best performance and that he should be able to resume his pre-accident employment:-

“17.   There were discrepancies between Mr. Tam's claimed disabilities and objective findings during examination (see Section 15).  He did not put in his best performance in the higher mental function tests.  He gave approximate answers to certain questions in the MMSE, partly accounting for the relatively low score.  Monocular diplopia is in general considered as non-neurological.  He did not exert fully when motor power of his right upper limb and left lower limb was tested.  The simultaneous contraction of agonist and antagonist muscles when elbow flexion and extension movements were tested is a sign of under-performance.”

“23.   Mr. Tam is currently unemployed.  As far as his neurological impairments are concerned, he should be able to resume his pre-accident employment as an electrician and air-condition technician, with work capacity mildly compromised.”  

38.  In Dr Woo's report dated 19 October 2004, Dr Woo opined that there was a strong suspicion that the plaintiff's deficits were either feigned or grossly exaggerated and that the plaintiff should have recovered sufficiently by June 2003 to be able to resume gainful employment:-

“2. He complains of residual headache, giddiness, impaired memory and weakness of his right hand and of his left leg.  His neurological examination, however, demonstrated many unusual features.

...

6. All the above discrepancies and inconsistencies defied neurophysiological principles and they raised the strong suspicion that his deficits were either feigned or grossly exaggerated for the purpose of the examination.  They cast serious doubt on the genuineness and integrity of his complaints.

...

9. Most recovery of neurological functions after a head trauma occurs during the first year of the accident, although some further, minor improvement can continue up to 2 years.  With Mr. Tam's moderate head injury, he should have recovered sufficiently by June 2003 (i.e. 1 year after the accident) to be able to resume gainful employment.”

39.  The plaintiff was examined by Dr Arthur Chiang Si Chung See-yuen, the plaintiff's orthopaedic expert, on 13 November 2004.  In his report dated 2 January 2005, Dr Chiang opined that certain complaints were unlikely to be related to the accident; that there would be a satisfactory capacity for prolonged walking and standing; that injuries had stabilised; and that the plaintiff could work in selected jobs:-

“11). Mr. Tam currently described of neck pain, back pain and pelvic pain.  In the medical reports available, these were not noted to be present.

These complaints were unlikely to be related to the accident.

The examination of the neck and back had suggested that the painful symptoms were mainly arising from the soft tissues and there was no obvious evidence of more significant back or neck pathologies, e.g. prolapsed cervical or lumbar discs.  A course of physiotherapy mainly in the form of manual therapy would have a reasonable chance of helping the neck and back symptoms to improve or resolve.

12).   With respect to the left knee and left ankle condition, the more objective part of the examination findings had suggested that a cane might not be required for outdoor travelling.  The left lower limb condition as reflected by the more objective part of the examination findings had suggested that there would be a satisfactory capacity for prolonged walking and standing, as well as some on and off manual work.

The combined residues from the stiffness of the right wrist, as well as the ulnar and median nerve injury would be compatible with a reasonable capacity in performing the daily activities.

However, the capacity for the use of the right hand to perform repeated heavy object lifting, continuous use of heavier tools, and repeated forceful manoeuvres with the thumb and fingers would be moderately reduced.  The capacity for fine work manoeuvres requiring the repetitive fine use of the fingers and thumb of the right hand may also be decreased because of the residual weakness and numbness in the thumb and fingers.

13).   The current right wrist, left knee, and left ankle condition should have reached the stabilized stage and further treatment is not required.

...

15).   Orthopaedically, with respect to the pre-injury job activities which required the handling of heavy air conditioners, Mr. Tam should not be able to return to the pre-injury job, mainly being limited by the residual stiffness of the right wrist, as well as the weakness and residual numbness in the right hand.

         With respect to the orthopaedic injuries, he could work in selected light duty repair jobs, or as a messenger, shop keeper, security guard, delivery worker for lighter goods, and in selected cleaner's or waiter's jobs.”

40.  The plaintiff was examined by Dr Chung See-yuen, the 3^rd defendant's psychiatric expert, on 28 September 2005.  In his report dated 25 October 2005, Dr Chung opined that the slightly unsatisfactory test results are due to inadequate effort and that the plaintiff was mentally fit to work in some jobs:-

“23. There were no hallucinations and delusions.  He was orientated in time, place and person.  Tests on his concentration, orientation, abstract reasoning, simple mental arithmetic, knowledge on general information, intellectual and memory functions were administered.  The test results were slightly unsatisfactory.  His intelligence was assessed to be within normal limits and his memory function was intact based on his overall performance in the interview.  The slightly unsatisfactory test results are due to inadequate effort.

...

25. Objective signs of cognitive impairment, anxiety or depression were not elicited during the assessment.  I believe he is suffering from mild mental problems currently.  Some symptoms of post-concussional syndrome, anxiety and depression are consistent with the circumstances of the injury.

26. The appropriate period of sick leave from a psychiatric point of view is one year from the date of the accident.  He is mentally fit to return to the pre-accident job as an air-conditioning technician.  I note that he has difficulty working on height due to his eye symptoms and lifting height objects due to his orthopaedics problems.  I believe he is mentally fit to work as a car-park attendant, security guard, shop assistant or other jobs appropriate to his physical condition and background should he need to change occupation.  The adverse effects of the mental problems on his working efficiency would be mild.”

41.  Feigning continued at the time when the plaintiff gave evidence.  He claimed that he had difficulty standing or walking for a long time which he explained meant 15 – 20 minutes and that he would feel numbness, dizziness, pain and might fall down and that was why he used crutches.  His allegations were contradicted by the report of his own orthopaedic expert.  He said he had been to the Labour Department and some employment expos to look for jobs.  Although he had produced a registration card with the Labour Department, he could not be specific about the job(s) he was looking for.  His allegations about visits to expos were, with one exception, vague.  The only thing specific was his ludicrous statement which he repeatedly made that he was looking for cleaning jobs, domestic helper jobs and jobs distributing leaflets.  He said distributing leaflets required standing in streets for 8 hours when he would have me believe that he had difficulty standing or walking for 15 – 20 minutes.  In my judgment, he was not a credible witness and he was feigning discomfort and weakness when he was giving evidence.

42.  Bearing in mind the medical evidence and the medical evidence of the plaintiff's experts in particular, I accept the submission of Mr Daniel K K Chan, counsel for the 3^rd defendant, that the plaintiff would be able to resume work by 2 January 2005 in jobs such as messenger/office assistant or building attendant/guard earning no less than $7,500 per month.

Quantum

43.  PSLA was agreed at $600,000.

44.  Pre-trial loss of earnings is $594,225, comprising loss of earnings from 3 June 2002 to 2 January 2005 of $465,000 [$15,000 x 31] and loss of earnings from 3 January 2005 to 9 June 2006 of $129,115 [($15,000 - $7,500) x 17.23].

45.  Future loss of earnings is $1,080,000 [(15,000 - $7,500) x 12 x 12].

46.  Loss of MPF benefit is $83,711 comprising pre-trial loss of $29,711 [$594,225 x 5%] and future loss of $54,000 [$1,080,000 x 5%].

47.  The 3^rd defendant agreed the plaintiff's claims for medical expenses and travelling expenses as set out in paragraph IX(1) and (2) of the Revised Statement of Damages in the total sum of $10,478.  I accept Mr Chan's submission that as there was no documentary evidence or justification for the plaintiff's claims for the disputed items which were neither reasonable nor necessary, miscellaneous items of special damages should be assessed at $25,000 which I do.

48.  I reject the plaintiff's claim for dental prosthesis because it was not supported by any receipt or documentary evidence.

49.  I also reject the plaintiff's claim for $60,000 as future medical expenses for possible fusion operation of the right wrist because of the plaintiff's own orthopaedic expert's opinion that it was likely that the avascular necrosis had resolved at some stage and that the plaintiff needed no further treatment.

50.  As for the plaintiff's claim for $117,000 for future psychiatric treatment, Dr Chan did not appear to have considered the question of exaggeration or feigning on the part of the plaintiff.  I prefer the estimate of $20,000 by Dr Chung and I so assess.

51.  There is no interest for pre-trial loss which is less than the amount of employee compensation received.  Interest should be awarded on $600,000 at 2% per annum from the date of service of writ to the date of judgment.

52.  These sums add up to $2,402,936 [$600,000 + 594,225 + $1,080,000 + $83,711 + $25,000 + $20,000]. 

53.  Reducing it by 50% on account of the plaintiff's contributory negligence gives the figure of $1,201,468. 

54.  Giving credit for the amount of $1,133,802 being the amount of employees compensation received by the plaintiff, the final award to the plaintiff is $67,666.

Apportionment

55.  Mr Chan submitted that liability should be shared equally among the defendants held liable to the plaintiff.  No other ratio has been suggested and there was no argument against the equal share suggestion.  I hold that as between the 1^st and 3^rd defendants, they are equally liable.

Orders

56.  I order that:-

(a) the plaintiff's action against the 2^nd defendant be dismissed; and

(b) judgment in the sum of $67,666, with interest on 50% of $600,000 at 2% per annum from the date of service of writ to the date of judgment, be entered for the plaintiff against the 1^st and 3^rd defendants.

Costs nisi

57.  I make an order nisi under Order 42 rule 5B(6) of the Rules of the High Court, Cap. 4, that the plaintiff pay the 2^nd defendant its costs of the action to be taxed if not agreed and that the 1^st and 3^rd defendants pay the plaintiff his costs of the action to be taxed on the scale and in the amount as if the proceedings had been brought in the District Court, with certificate for counsel.  There shall be legal aid taxation of the plaintiff's own costs.