LI WAI MING v. TANG SIU FAT t/a HING FAT ENGINEERING CO AND ANOTHER

HCPI 512/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 512 OF 2006

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in June 2006 claiming damages for (a) breach of terms of employment contract, (b) negligence, (c) breach of common duty of care and (d) breach of statutory duty.

2.  All causes of action are founded on the same factual allegations (summarized below).

Background

3.  The following background is undisputed.

4.  The plaintiff began to work for the 1^st defendant (“Tang”) as a plastering worker since about March 2003.

5.  The 2^nd defendant (“China State Construction”) was the principal contractor of the construction site at which the plaintiff worked in June 2003.  Tang was one of the sub-contractors of China State Construction at the time.

6.  Workers should start work at 8:00 am.  Shortly before 8:00 am on 26 June 2003, the workers employed by Tang (including the plaintiff) gathered in the vicinity of a container placed inside the construction site for use by them as a storage and changing room.

7.  On 26 June 2003 some time between about 8:00 am and 8:30 am, the plaintiff’s right index finger was injured by a metal handcart or pushcart which belonged to Tang.

Cause of the Plaintiff’s Injuries

8.  While the accident on 26 June 2003 is itself undisputed, how it happened is strenuously challenged by the defence.

9.  Before discussing the different versions of the accident put forth by the parties, a few words need to be spent on the handcart (sometimes called “hand trolley” or “pushcart”) which caused the plaintiff’s injuries so as to make the discussion more easily comprehensible.

10.  The handcart involved in the incident was made of metal:-

(a)  the platform on which the load was to be placed was rectangular-shaped and formed by metal plates;

(b)  4 wheels were installed underneath the said platform;

(c)  the handcart has a foldable handle bar installed at the back of the said platform;

(d)  the handle bar was attached to, and pivoted at, both sides of the rear of the said platform.  The handle bar was shaped like a reversed-U;

(e)  when not in use, the handle bar could be folded forward;

(f)  when fully extended, the handle bar was designed to be used for pushing the handcart to roll forward (with the load on the said platform);

(g)  when the handle bar was properly and fully folded up, there was a simple metal linkage mechanism at the pivot points to prevent the handle bar from folding forward when the handcart was being pushed forward.  Also, the handle bar would be in a slanted position (slanting towards the back).

11.  The plaintiff’s version of the accident is set out in the statement of claim as follows:-

“At about 8:05 a.m. on 26^th June 2003, the Plaintiff was … moving bricks with a four-wheeled trolley to an assigned area.  The handlebar of the trolley loosened and slammed down and crushed the right index finger of the Plaintiff injuring him severely” (para.3 thereof).

12.  The accident was described by him in the witness statement as follows:-

“At or about 8:30 a.m., I filled the four-wheeled trolley with bricks with an intention to transport these bricks to the designated area in order to carry out the plastering work. … I squatted down at the lateral side of the trolley.  The bar handle of the trolley was on my left.  When I was putting the bricks onto the loading platform … , the handle bar suddenly loosened and slammed down without notice and crushed my right index finger resulting in a severe injury” (para. 6 thereof).

13.  In a pre-action letter dated 12 September 2005, the plaintiff’s solicitors enclosed 2 sketches showing the accident.  The sketches depict that:-

(1)  the accident occurred immediately next to the container inside the construction site (see para. 6 above);

(2)  at the time of the accident, the plaintiff was to the right of the handcart, with the left side of his body closer to its rear (hence, closer to the foldable handle bar).

14.  The version of the accident put forth by the defence is different.  The defence filed alleges that the plaintiff was injured when he threw the handcart to the ground out of an outburst of temper.

15.  A Mr Hui who claims to be the plaintiff’s colleague and an eye-witness to the accident says the following in his witness statement.  Shortly before 8:00 am, Tang’s workers were crowding inside the container to change to working clothes.  The plaintiff was outside the container and he suddenly lost his temper.  He lifted a handcart placed outside the container to chest level, then threw it to the ground.  His right index finger was injured in the process.

16.  The respective versions of events are so different they cannot be the result of misunderstanding or mistake.  The dispute has to be determined based on an assessment of the credibility of the witnesses’ testimony.

17.  In short, I disbelieve the plaintiff’s testimony and believe the testimony of Mr Hui.

18.  One, as stated in para. 10(f) above, the design of the handcart was such that its handle bar, when properly lifted up, would be used to push the handcart to move forward.  Thus, the handle bar needs to be firm enough to withstand a forward-pushing force.  It is the plaintiff’s own case the handle bar was properly lifted up (the allegation of contributory negligence is denied).  With this in mind, it is difficult to conceive how the handle bar could have slammed down suddenly.

19.  Two, when cross-examined, the plaintiff claimed that the handle bar of the handcart he used on the day of the accident:-

(a)  was in a more upright position (even when fully extended) than the ones shown in the photographs in the trial bundles;

(b)  was loose and prompt to drop down accidentally.

I find both claims to be untruthful.  They were not made in any court documents, nor in examination-in-chief.

20.  Three, the photographs in the trial bundles also show that the handle bar can be folded down to a horizontal position.  In that state, it is parallel to the edge of the platform.  However, there is still a space of at least 2 to 3 inches between the handle bar and the edge of the platform.  If the handle bar had dropped down accidentally, a finger placed on the edge cannot be crushed by the handle bar; the gap is too wide for that to happen.

21.  Four, the plaintiff’s left shoulder and left arm were closer to the handle bar.  If the handle bar had dropped down as asserted, the plaintiff could have prevented the drop with his left hand.  The plaintiff could not satisfactorily explain why he did not do so.  At one stage, he claimed that he was about to place another brick onto the handcart and so did not notice the handle bar falling.  But when questioned about how the handle bar could drop when the handcart was stationary, the plaintiff claimed that the ground was uneven and the handcart moved slightly.  The handle bar dropped just when he used his right hand to hold the handcart steady.  If that were true, the plaintiff should be able to notice the falling handle bar.

22.  Besides the above, there are also discrepancies in the plaintiff’s testimony regarding:-

(1)  where the accident occurred.  In one of the sketches attached to the pre-action letter, the accident was depicted as next to the container.  But in his testimony, the plaintiff claimed that it occurred about 1 to 2 minutes’ walking distance from the container;

(2)  the time of the accident.  In the statement of claim, it was said to be around 8:00 am.  Both the plaintiff’s witness statement and testimony put the time at about 8:30 am.  But the medical records contradict the latter claim.  The record from the Accident and Emergency Department shows the admission time to be 8:16 am while that from the Orthopaedics and Traumatology Department shows an admission time of 8:47 am.  The plaintiff admits the travelling time from the construction site to be about 5 to 10 minutes.  If some waiting time is included, it is most probable the accident took place around 8:00 am (if not earlier).

23.  The discrepancies may appear to be insignificant when looked at in isolation.  But when they are considered in the context of the version put forth by the defence (see para. 14 to 15 above), they become important.  The proximity of the accident to the container and the earlier accident time do not sit well with the plaintiff’s case that he was injured some time after he has already commenced work on 26 June 2003.

24.  On the other hand, I accept the testimony of Mr Hui to be truthful and reliable.  In coming to that conclusion, I have already taken into account the criticisms levied against him in cross-examination and closing submission.

Conclusion on Liability

25.  Having rejected the plaintiff’s claim that he was injured in the course of his employment (rather than his own temperamental act), I find that he has not been able to establish any cause of action, be it in contract, negligence, occupiers’ liability or breach of statutory duty.

26.  The statutory provisions relied on as creating a statutory duty are s. 6A, Factories and Industrial Undertakings Ordinance (Cap. 59), s. 6, Occupational Safety and Health Ordinance (Cap. 509) and rr. 23(2), 24(1), 27(1), 29(1) and 31, Occupational Safety and Health Regulations (Cap. 509A).

27.  There is no need to go into the details concerning those provisions save to say that none of them has created a duty on the employer’s part to prevent injuries caused by an employee’s own emotional or temperamental outburst.

28.  The plaintiff’s argument that the defendants should still be liable because their duty under the statutes is strict does not address the important issue of the scope of that duty.  In order to succeed, the plaintiff needs to establish that those provisions are intended to create a duty the scope of which includes that set out in para. 27 above.

Quantum

29.  It is strictly unnecessary to deal with this issue.  I shall do so for completeness.

(a)  Pain and Suffering and Loss of Amenities

30.  The plaintiff seeks damages of $150,000 while the defence opines that damages should only be $80,000.

31.  He was aged 46 years old at the time of the accident.  Right hand is his dominant hand.

32.  Because of the injuries to the plaintiff’s right index finger, the distal portion of the index finger has to be amputated.  He was discharged from hospital the following day and underwent physiotherapy treatment and occupational therapy from July 2003 to October 2003.

33.  The plaintiff still feels pain, tingling discomfort, numbness and sensitivity at the amputation site.

34.  In support of this part of his claim, the plaintiff relies on Ho Shu Yau v. Lo Siu Ling formerly t/a Chi Wo Civil Engineering Co. and Another, HCPI 1336/2000 (31 January 2002).

35.  The plaintiff in Ho Shu Yau was 43 years old at the time of the hearing, and appeared to be working as a construction site casual worker.  His dominant hand was also the right hand.  As a result of work injury, the distal phalanx of his left ring finger was amputated.

36.  Subsequent examination showed a 10-degree drop of flexion power of his distal interphalangeal joint.  Sensitiveness of the finger tip was within the normal range.  He still complained of stiffness and tenderness.  Impairment of the whole person was assessed at 2%.

37.  After reviewing a number of decisions, the master awarded $120,000 under this head of claim.

38.  In brief, I do not consider the loss suffered by the plaintiff to be any less than that suffered by the plaintiff in Ho Shu Yau.  If anything, the plaintiff here lost a portion of the index finger of his dominant hand.  Taking that, and the award in Ho Shu Yau was made about 6 years ago, into account, I agree with the amount contended for by the plaintiff.

(b)  Pre-trial Loss of Earnings

39.  The total sum claimed is $242,438.10.  The defence contends the proper award should only be $23,625.

40.  Sick leave was given from 26 June to 8 October 2003, 20 May, 11 August, 5 to 6 September, 22 September and 17 November 2005 and 10 January and 11 March 2006.

41.  The plaintiff claims his pre-accident income was about $700 per day (para. 24, plaintiff’s written opening), which means a monthly income of $18,200 for 26 working days.

42.  The defence asserts the amount of daily wages was only $450.  A month with 26 working days will mean an income of $11,700.

43.  The plaintiff has not been able to produce any documents to support the claimed daily income of $700.  I do not consider there is sufficient evidence to support the amount claimed.

44.  Both parties accept the multiplier to be 105 days.  Hence, the amount of award should be $47,250 ($450 x 105).

45.  Because I agree with the defence that the plaintiff should be able to return to his pre-accident work (see para. 46 to 50 below), no other award will be made under this head of claim.

(c)  Loss of Future Earnings and Loss of Earning Capacity

46.  The claimed sums are $516,720 (future earnings) and $100,000 (earning capacity).  The defence argues that the plaintiff can return to his former work; hence, no award should be made.

47.  The plaintiff says he has to handle tools such as chisel, putty knife, hammer and spade as a plastering worker.  He claims to be unable to do so.  Further, because his right hand is weakened, he cannot handle heavy objects.

48.  The plaintiff’s medical expert, Dr Au, recorded in his report dated 8 July 2006 the plaintiff had returned to his pre-accident job as a plasterer (para. 8.5 thereof).

49.  The defence medical expert, Dr Cheng, also recorded that in his report dated 26 October 2006.  Dr Cheng also opined that the plaintiff should be fully capable to resume his pre-accident occupation, and there is no need for job restriction or job change on medical grounds.

50.  By virtue of the above, I am not satisfied the plaintiff will suffer any loss of future earnings.

(d)     Special Damages

51.  The total claim is 14,393.  It is consisted of:-

(a)  medical expenses ($2,273);

(b)  tonic food ($10,000);

(c)  travelling expenses ($2,120).

52.  The defence only agrees to an award of $6,773 consisting of $2,273 for medical expenses, $3,000 for tonic food and $1,500 for travelling expenses.

53.  In short, I agree with the defence that only a small sum should be allowed for tonic food (see para. 52 above).  There is no documents in support of the travelling expenses claim; only $1,500 should be allowed.

Conclusion

54.  The plaintiff’s claim is dismissed.

Other Matters

55.  The defence relied on a surveillance video recording during trial.  The plaintiff objected to its use on the ground an unrelated male was shown in the video recording.

56.  To everyone’s surprise, the plaintiff’s objection turned out to be fully justified: the male seen in the surveillance recording was not the plaintiff.  Defence counsel fairly (and correctly) conceded the mistake made by those responsible for the video recording.

57.  The parties agree the amount of employees’ compensation ($119,400) should be set-off against any award made herein.

Costs Order

58.  The parties agree that costs of this action should follow the event.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendants to be taxed if not agreed.