CHAN HONG NING v. WAI LEE SCAFFOLDING ENGINEERING LTD AND ANOTHER

HCPI 116/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 116 OF 2005

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J U D G M E N T

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Introduction

1.  The Plaintiff, who is a scaffolder specialising in the dismantling of scaffolds was, on his account, injured when a horizontal bamboo pole known as a transom that he was standing on, gave way underneath him causing its opposite end to ride up and poke him in the right eye.  This has caused permanent damage to this eye.  He now has blurred vision from that eye and suffers from a loss of three-dimensional vision and impaired depth perception.  As a result he will not be able to return to his previous occupation nor will he be able to drive.

2.  Although the Defendants have not been able to call any evidence as to the circumstances of the accident it is not accepted by them that the Plaintiff was injured in the way that he says he was.  Mr Lim, who appears for them, has sought by cross-examination of the Plaintiff and through his own witness to present an alternative basis for the Plaintiff’s injuries which would not, if correct, support a case in negligence against the Defendants.

The evidence

3.  It is helpful to look first to the Plaintiff’s case as pleaded which appears in paragraph 19 of the amended-Statement of Claim [page  81 of the bundle]:-

“When the Plaintiff was climbing down as aforesaid, he first stepped his right foot onto the Middle Part of The Bamboo Transom and then set his left foot onto the Back End of Bamboo Transom.  At that time he was standing on the Bamboo Transom with his left foot behind his right foot and facing to the direction parallel to the Bamboo Transom.  All of a sudden, the Back End of the Bamboo Transom that his left foot was stepping on gave way and caused the front end of the Bamboo Transom to bounce up thereby causing the Plaintiff to fall and lurch forward.  As a result, his forehead and right eye were hit by the rising front end of the Bamboo Transom (“Accident”).  After the accident the Plaintiff jumped to the ground.”

4.  He then provided a description of the accident in paragraph 7 of his witness statement at page 126d of the Bundle:

“The process of dismantling the scaffold was from top to bottom.  At the material time, I nearly finished my work and intended to land on the ground.  My left foot was put on a horizontal bamboo to share the weight of my body.  The function of the horizontal bamboo was used to separate the bamboo scaffold and the external wall of the first-aid building for certain distances.  That horizontal bamboo was not fixed or pitched tightly.  The horizontal bamboo suddenly gave way and caused me to lose balance and lean forward.  At the same time, another end of the horizontal bamboo hit my forehead and right eye.  I was in severe pain an my vision was blurred…”

5.  All of this occurred on scaffolding that had been put up in the courtyard of the Morrison Hill ambulance station in order that external painting work could be done.  Part of the scaffolding was built across the front of the building that was to be painted so as to support a tarpaulin or plastic sheeting that was laid over the frame of the scaffolding so as to prevent paint and debris from falling onto motor vehicles that would be parked below.  A view of the site of the accident is helpfully provided in the photographs, which have been exhibited [see Ex. P1].

6.  A brief description of the constituents of a bamboo scaffold will be helpful.  It is made up of standards, being the upright poles onto which are lashed, by nylon binding, the ledgers.  These ledgers, which are horizontal to the ground, support boards on which the workmen can walk about to perform their tasks, depending on what is being done to the building, be it repairs or painting.  The third element are the transoms which are also horizontal to the ground being, relatively speaking, shorter poles which are also lashed with nylon binding onto the standard.  Their function is to secure the standard in a vertical position and to the building itself.  A transom is horizontal to the ground and runs outwards from the building.  At one end it is secured or, at least it should be secured, to the building by means of a bracket that has been drilled into the fabric of the building and at its other end it is lashed to the standard thereby maintaining the standard in an upright position and securely held to the building.

7.  In giving his evidence in chief the Plaintiff said that what he was doing, as he stood on the transom, was dismantling ledgers by cutting the bindings when his feet slipped backwards towards the building.  Mr Lim has reminded me that this slipping was first mentioned at this, oral, stage of his evidence.  It did not appear in the pleadings nor in his witness statement.  It was only after the slip that he realized that the transom was not secured by a fixed bracket to the building, which accounted for the reason why it had tilted in the way that he described.

8.  A number of matters have arisen as to precisely how the Plaintiff was injured which in turn have provided the Defendants with a number of grounds to suggest that the accident could not have happened in the way that the Plaintiff says it did.  As the evidence developed it became apparent that the transom was about 3 feet off the ground and that it protruded about 2 or 3 feet beyond the vertical standard that it was lashed to.  He says that its total length was about 5 or 6 feet and about 3.5 centimetres in diameter.  This has given rise to two comments on behalf of the Defendant.  Firstly, Mr Wong Wai Leung, an experienced scaffolder and the principal of the 1st Defendant, who employed the Plaintiff, has said that transoms do not come in these lengths.  They are 3 feet to 3.5 feet long.  This is relied on by Mr Lim as tending to show, in a general way, that the Plaintiff’s account is to be doubted.  Secondly, Mr Lim draws attention to the fact that it is highly unlikely that a transom only 3 feet off the ground would have protruded beyond the standard by 2 or 3 feet, because that would have obstructed the passage of motor vehicles and pedestrian passing, as they would have to, just beyond the outer frame of the scaffolding.  Whilst that might have been acceptable had the transom been 6 feet or more above the ground, where it would have caused no obstruction this would be inherently unlikely at a height of only 3 feet off the ground.

9.  The other matter which Mr Lim relies on strongly and which had caused me concern as the evidence was being given is just how it was that the far end of the transom that had ridden upwards beyond the standard, being only 2 or 3 feet in length, could possibly have come into contact with the Plaintiff’s eye.  This, even making every allowance for the fact that as the Plaintiff slipped backwards on the side of the transom that had tilted downwards, he had reached forward and grabbed hold of the standard to steady himself and in so doing his head had come forwards to meet the rising end of the transom beyond the standard.  What has concerned me is how a 2 to 3 foot protrusion could have struck the Plaintiff at any point higher than his shoulders.  It needs to be remembered that it is not suggested that the tilting was anything like 45 degree from the horizontal, which, if it had, would have caused him to fall off.  I will need to return to this aspect presently.

10.  He also told me that a colleague had been able to come to his assistance by holding onto his feet to preventing him coming off the transom.  A clear picture has emerged from his evidence that the transom had not tilted by a very substantial degree from the horizontal and that he had stayed on by grabbing hold of the standard and by his colleague also holding him up.

11.  The Defendants have called Mr Wong.  He has insisted that there were no transoms with a length of 5 or 6 feet.  Secondly, that there were no transoms at a level of only 3 feet above the ground.  His evidence is that there was a standard as described by the Plaintiff, which went up to the level of the ceiling.  Above that was a double scaffold and transoms were located in that area and used to fix the scaffold with brackets into the building, as they should have been.  He arrived at the scene after the Plaintiff’s removal to hospital and so he could not say what the Plaintiff had to say about the accident.

12.  As to whether the Plaintiff had given different versions as to how he came to be injured, particularly as recorded in Form 2 by Ms Cheung the 2nd Defendant’s safety officer, which the Plaintiff does not accept, I am not prepared to attach any weight to that statement because Ms Cheung has not been called to say what the Plaintiff allegedly told her.  This being the case, I need to test his credibility having regard to the accounts that I am able to have regard to these being the pleaded case, his witness statement, his evidence before me and the letter before action dated the 22 December 2004 which is in these terms:

“In the course of his work, after he stood at height on a horizontal ledger at a height of 6 foot and competed the dismantling work of a ledger at his upper side, he intended to step down onto a bamboo transom at a height of 3 foot which connected between the bamboo scaffold and the side wall of the car park.  When he stepped by one foot onto the part of the bamboo transom close to the side wall, the bamboo transom of its part which he stood subsided with the end of the other side rising up.  The Claimant was also caused to fall forwards and down from the bamboo transom with his face and right eye being hit by the rising end of the bamboo transom and thereby caused him to sustain serious injury.”

13.  Mr Clough submits that all these parts of the evidence are consistent with each other and that the account given by the Plaintiff is perfectly reasonable as to how he came to be injured.

14.  Mr Lim has relied on what he says is the inherently unlikely account of a 2 to 3 foot protruding transom coming up as high as his face to cause this injury.  He has sought to support that submission by asking me to consider the nature the injury itself.  The medical evidence is that the injury consisted of a small skin abrasion above the right eye-brow and a transverse full thickness corneal laceration at the centre of the right cornea.   The Plaintiff agrees that he suffered no injury to the upper or lower eyelid.  There was no bruising or cuts to the eyelids.  Mr Lim invites me, notionally, to stand back from this account and ask myself whether it is likely that this very restricted area of damage to the eye could have occurred if a 3.5 centimetre diameter transom pole had struck his eye at what must have been some speed.  He suggests that the area of damage would have been much greater involving the eyelids and quite likely the area below and above the eyeball.

15.  In view of this Mr Lim has postulated an alternative version which he has canvassed in cross-examination with the Plaintiff which is that he injured his eye when he inadvertly caused his face to come too close to the nylon binding which held together the pole that he was standing on with the standard and that this nylon binding flicked his eye-ball causing these injuries.  I have been shown a length of this binding which is rigid and it can be made to spring back and forth.  Mr Wong has also said that in the industry he has come across a number of eye injuries caused by scaffolders getting hit in the eye by these bindings as they move about on the scaffolding doing their work.  The Plaintiff denies that this is what had happened to him.

How did the accident happen?

16.  It is of course incumbent on the Plaintiff to prove, on a balance of probabilities, that the accident happened in the way that he says it did.  If he fails to do so his case must go.  Mr Clough submits that this is a perfectly plausible account which has been consistent from the letter before action through to the oral evidence in the course of trial.  There is nothing inherently improbable about it.  The Defendants who cannot gainsay it by direct evidence of their own has sought to “theorise” about what might or might not have occurred.

17.  It has to be said that Mr Lim, who has had to make his bricks without straw, has put forward a number of propositions which require close examination.  Of all of these the one that has called for the closest examination is whether it is likely that the end of the pole that hit the Plaintiff was long enough to come into contact with his face, bearing in mind that the pole had not tilted very much and, in any event, certainly less than 45 degrees from the horizontal.

18.  I have also had regard to the other considerations that Mr Lim has referred to and which I have drawn attention to.  In coming to a conclusion on this all-important aspect of the case it has to be borne in mind that accidents such as this happen in an instant and that one should not try to rehearse the matter by some sort of notional ex post facto slow motion examination of what might or could have happened.  Whilst I have to keep a firm grip on reality I must not examine the accident by applying precise milli-metric measures.  Approaching the matter in perhaps a more all-embracing general way I have come to the conclusion that it is more probable than not that the Plaintiff was injured in the way that he says.

19.  Firstly, I am satisfied that when the pole dropped at his end it would have done so unexpectedly and sharply.  This would have called for an instinctive reaction from the Plaintiff.  He says, perfectly reasonably, that he grabbed forward for the standard and that in doing so his head also came forward and as it did his eye came into contact with the other end of the pole.  Whilst not a long pole, and this has caused me to hesitate, because I am satisfied that it was only 2 or 3 feet beyond the standard, it is perfectly probable that in the speed and force of the incident this end hit the Plaintiff’s right eye.  The other matter that I have borne in mind is that the Plaintiff is not a particularly tall man.  I estimate, having seen him, that he is no more than 5 feet 6 inches tall.  It follows of course that in accepting this account I am satisfied that there was such a transom in that position.  Mr Wong says no, but he cannot give any firm evidence as to this which is capable of negating the Plaintiff’s evidence about this.  Mr Wong was not present at the time.

20.  As to the relatively restricted area of damage and injury to the eye it should be remembered that used bamboo poles do splinter and although I was shown a brand new transom in court with smooth edges at its end, I can readily imagine that a used pole would soon lose its smoothness and develop splinters and sharp ends which could cause the injury that the Plaintiff sustained.  Even with a new pole a glancing blow could easily cause the injuries that the Plaintiff received.  It is also in this regard that I need to bear in mind that this would have happened in an instant and that the rather more measured minute examination that Mr Lim has applied is inappropriate.  For these reasons therefore I am satisfied that the Plaintiff has given an accurate account of how the accident happened.

Does this disclose a case of negligence and breach of statutory duty?

21.  The starting point to this must be the fact that this pole was not fixed to the wall, as it should have been, by a bracket.  This being so it was entirely foreseeable that, if a scaffolder stood on it as the Plaintiff had, and it was entirely foreseeable that a scaffolder or other workman would have stood on it, it would have given way in the way that it did and that this would have caused an injury to such a person in the way that actually happened on this occasion.  This was a deficiently constructed scaffolding at that point.  Once that finding is made the rest of the Plaintiff’s case must fall into place.  The place of work was unsafe as was the system of work.  It is suggested on behalf of the Defendant that there was a ladder nearby and that the Plaintiff should have used that ladder rather than attempting to stand on the pole in order to dismantle the overhead ledgers.  The Plaintiff denies that such a ladder was available and in this regard I accept his evidence.  In all the circumstances, I hold that the Defendants are guilty of the allegations that have been pleaded against them having regard to their respective roles, the 1^st Defendant as employer and as the company in charge of the scaffold and the 2^nd Defendant as the main contractor at the site.  There must therefore be judgment for the Plaintiff against the 1^st and 2^nd Defendants.  Mr Lim has addressed an argument that by virtue of having slipped on the pole that he was standing on the Plaintiff must suffer a considerable reduction in any damages that he may recover having regard to his contributory negligence.  Nevertheless, Mr Lim has very properly not pressed this issue to any great extent.  For my part I am satisfied that these facts disclose no contributory negligence and that the Plaintiff must therefore recover in full.

Quantum

Pain, suffering and loss of amenity

22.  The Plaintiff claims an award of $500,000 as pleaded in the statement of damages on the basis that the injury to his eye places him within the category of “serious injury”.  Mr Clough has referred to two cases which he says are comparable being Hang Huu Duc v Hambo Engineering Limited HCPI 172/04 and Ho Yam Pan v Tse Tak Ming HCPI 91/96 both of which relate to the loss of vision in one eye with awards of $550,000 and $450,000 although it is right to say that Mr Clough now accepts in this case the award will be less than in those two cases.  In both of those cases there was a total loss of vision whereas in the case before me the Plaintiff has blurred vision rather than total loss of his sight in that eye.  Nevertheless, it is accepted that he cannot go back to his pre-accident employment.  He has also had to undergo an operation for the surgical removal of a traumatic cataract and its replacement with an intra-ocular lens.  This is a case where, for all intents and purposes, the right eye is useless and although Mr Lim has put in the case of Kwan Shuk Sang v Chan Kam Wah (2003) 2 HKLRD 967, where the Plaintiff was awarded $280,000 for a very severe injury to one eye resulting in loss of visual acuity to 20:40 this Plaintiff’s injury is, I would have thought, somewhat more serious where he also had to undergo surgery.  In my judgment, under this head, the proper award should be $330,000.

Pre-trial loss of earnings

23.  The difficulty here is to arrive at the correct figure for his average loss of earnings.  The Plaintiff was not in receipt of a regular wage.  He was a casual worker and so his monthly earnings depended on how many days he worked each month.  Both counsel have attempted an ex post facto re-construction of what his likely monthly average was based on the MPF contributions paid by his various employers.  The difficulty about this is that the record is incomplete and this is compounded by the fact that it is by no means certain that the employers paid all of the contributions that they were required to.  It is also clear that his days of employment varied from month to month.  During SARS, from January to August 2003, there were no contributions and then after this period when work picked up he was very much busier.  Some reliable indication comes from Form 2, when, for the purposes of his claim for Employees Compensation, he declared average earnings for the previous 12 months of $10,500 a month.  He appealed against the LOEC percentage given by the Medical Assessment Board but did not complain about the average earnings figure $10,500.  Mr Clough invites me to ignore this because he says that the Plaintiff did not have proper representation at that stage and had he been well advised that average figure would have been much closer to $20,000 which is what is now said to be the basis of calculation.  Mr Wong, the defence witness, suggests that scaffolders that he employs earn $800 a day and that they would usually work 8 to 10 days a month.  So he is really contending for earnings of $8,000 to 10,000 a month.  During my best, I propose to take the figure put forward in Form 2 as the best evidence of his average earnings and calculate the loss based on $10,500 a month.  Sick leave was from 28 September 2003 to 21 January 2004 being a 4-month period.  The loss of earnings for this period is therefore $42,000 [$10,500 x 4].

24.  The next element which is from the end of sick leave until the present time is a little more complicated.  Mr Lim is relying on the average earnings for the months of June to August 2004 which were $8,800.  From this he submits that this is a reliable indicator of what the Plaintiff would have earned as a scaffolding dismantler but for the accident.  Mr Clough contends that he would have been very much busier than that.  For my part, I find it difficult to arrive at anything like a precise figure.  The fact is that since the end of SARS the economy has gradually improved as has activity in the building industry of which scaffolding is an integral part.  I propose to say that but for the accident it is more likely than not that his earnings would still be $10,500 and calculate his loss on that basis.

25.  Unsurprisingly, Mr Lim says that after the expiry of his sick leave he should have found employment effectively straightaway earning about $7,000 a month which is what he is currently earning as a joiner and carpenter installing false ceilings.  Mr Lim says that he should have mitigated his loss and so I should deduct $7,000 from whatever figure I find he would have been earning but for the accident up to the point that he actually resumed work, save for a period of re-training between 1 February 2005 and 30 April 2005 when he earned nothing, during which period it is conceded that he should be compensated in full.

26.  I consider that it is somewhat harsh to expect the Plaintiff to resume work as soon as that.  The loss of effective sight from one eye will undoubtedly cause a person in the Plaintiff’s position to suffer a considerable loss of confidence and I would have thought generous allowance needs to be made for a time of reflection and adjustment.

27.  The Plaintiff has put his pre-trial loss of earnings claimed on the basis that he should be compensated in full, until the start of his present employment on the 1 May 2005, save for 3 months work as a scaffolder in June, July and August 2004 after which he realised that he was not able to do this work given his disability.  It is accepted by the Defendants that he is unable to resume this type of work.

28.  In my judgment, this is the proper basis for compensating him.  I am of the view that he should not have deducted from his damages some sort of notional earning capacity from the end of his sick leave.  Compensation will therefore be as follows:

1.	1 February 2004 to 31 May 2004		[4 months x $10,500]
			$42,000.00
2.	1 September 2004 to 30 April 2005		[8 months x 10,000]
			$84,000.00
3.	1 May 2005 (when he resumed employment at $7,000 a month to 16 September 2005 being the date of trial)		[10,500 – 7,000 = 3,500 x 4.5 months]
			$15,750.00
plus as aforesaid,
4.	sick leave period		[10,500 x 4 months]
	28 September 2003 to 21 January 2004		$42,000.00
			$183,750.00
	Total pre-trial loss of earnings		$   9,187.50
	Loss of MPF contribution $183750 x 5%		$192,937.50
	Total		==========

Future loss of earnings

29.  As is usual this element of the claim is the largest and the most sharply contested.  Mr Clough submits that a multiplier/multiplicand approach is appropriate.  The multiplier should be 15 years having regard to the fact that the Plaintiff is now 35 and could be expected to work until he is 65.  The claim on this basis would exceed 2 million dollars.

30.  Mr Lim’s approach is to say that the Plaintiff will have a claim of limited duration because after about 3 years the Plaintiff can expect to become a master carpenter and as such can earn $600 a day giving a monthly income of $15,600 on a 26 day month.

31.  By way of general approach I favour Mr Lim’s assessment.  I am satisfied that the Plaintiff, given time, will get himself up to his pre-accident earning capacity and thereafter the future loss claim will be extinguished.  I propose to give him a more generous time frame than that proposed by Mr Lim having regard to his disability.  I think 5 years is appropriate.  The loss under this head is therefore:

$10,500 – $7000 = $3,500 x 5 x 12 =	$210,000.00
loss of MPF on $210,000 =	$ 10,500.00
	$220,500.00

Handicap in the labour market

32.  This is a very valid claim.  I will award his current salary multiplied by 12 months     $ 84,000.00.

Special damages

Summary

1.	Pain and suffering	$330,000.00
2.	Pre-trial loss of earnings	$192,937.50
3.	Future loss of earnings	$220,500.00
4.	Handicap in labour market	$  84,000.00
5.	Special damages	$  10,580.00
	Total	$838,017.50
	Less EC award	-$348,010.00
	Total Damages	$490,007.50
		=========

Interest

34.  On general damages at 2% from the date of service of the writ until judgment and on special damages at half the judgment rate from the date of the accident until judgment and thereafter at the judgment rate until payment.

Costs

35.  There will be an order nisi that the Plaintiff will have his costs but, having regard to the size of the award only on the District Court scale only to be taxed on a party and party basis, with legal aid taxation if he is in receipt of a legal aid certificate.