AU WAH v. TSANG HIN PANG, PATRICK t/a KAM PANG CONSTRUCTION CO. AND OTHERS

1997, No. PI 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. On 6 August 1994, the scaffolding at a construction site on which the plaintiff was working collapsed, the plaintiff fell and was injured. The first defendant was the principal contractor on the site. The second defendant was the scaffolding sub-contractor and the third defendant was the scaffolding sub-sub-contractor. The plaintiff has instituted action against all three defendants claiming damages arising out of the injuries suffered by him.

2. On 4 July 1997, judgment in default was entered against all three defendants, with damages to be assessed, but, on 18 June 1998, the first defendant was given leave to file and serve a defence. The judgment against the second and third defendants stands. Accordingly, I have to decide the question of liability as against the first defendant and assess damages.

3. The first defendant, as the principal contractor, recognises his responsibility to the plaintiff for ensuring the general safety of the workers on the site, but he says that the other defendants must bear a share of that responsibility, as must the plaintiff. He says that the plaintiff must share responsibility because safety belts were available, and, just before it collapsed, he told some of the workers at the foot of the scaffolding to use the safety belts and he also told these workers that "there should not be too many people" on the scaffolding.

4. The evidence is that the scaffolding had been in position for about one year and its condition had deteriorated. The first defendant says that he instructed one of his employees to inspect the scaffolding and, if there was any problem, to tell him so that he could tell the second defendant to put this right. No such report was made to him. The first defendant concedes that there was no life-line from the roof for the safety of the scaffolding workers, and no anchorage points on the building to which safety belts could be secured.

5. On the evidence, I am satisfied that the first defendant failed to take reasonable steps to ensure the safety of the workers on the scaffolding as it was his duty to do. It is clear to me that the condition of the scaffolding had deteriorated over the period during which it stood there, and the first defendant should have ensured that it was safe for workers to be upon it. This he failed to do. Accordingly, I am satisfied that the first defendant is liable to the plaintiff.

6. There is no satisfactory evidence that the plaintiff failed to take reasonable precautions for his own safety, and I reject this allegation.

7. As to damages, the plaintiff claims $1,213,050 as loss of pre-trial earnings. I am satisfied that the figures used to calculate this sum are acceptable, but I think there should be some allowance made for the periods during which the plaintiff would not have worked. The plaintiff is a casual worker, getting work when and where he can. It is likely that there would have been times, especially in the existing economic climate, during which the plaintiff would not have been able to obtain work. There is no scientific basis on which one can calculate this deduction but I think it fair to allow only $1 million under this head.

8. The plaintiff claims $1,037 as medical expenses and $312 as travelling expenses. There is no reason not to accept these amounts.

9. Under the head of future loss of earnings, the plaintiff claims $2,350,080. This is based on a loss of $19,584 a month, being $235,080 a year, and using a multiplier of 10. I am satisfied that the basis of this calculation is reasonable, but, again, I feel that there should be a reduction to take account of periods when the plaintiff would have been out of work. For this reason, I award $2 million under this head.

10. The plaintiff also claims $150,000 for loss of earning capacity because of his injuries. This figure seems reasonable.

11. To compensate himself for pain and suffering and loss of amenities, the plaintiff claims $530,000. The evidence of Dr Chun Siu-Yeung indicates to me that the plaintiff's injuries are towards the lower end of the serious injury category. On this basis, I think this claim is far too high. I assess the general damages under this head at $300,000.

12. In the result, I assess the plaintiff's damages at a total sum of $3,451,349. I grant judgment in this sum against all three defendants, together with interest on the sum of $1,001,349 at half the judgement rate from 6 August 1994 to the date of this judgment, and interest on the sum of $2,450,000 at 2% per annum from 8 January 1997 to the date of this judgment. The full amount will bear interest at the judgment rate from today until payment. The plaintiff is also entitled to his costs of suit against the defendants, and I award this.

13. Any amount received by the plaintiff from the Employees Compensation Assistance Fund must go to reducing the amount recoverable under this judgment.