LAW HOI CHUEN v. GRANDEUR CONSTRUCTION CO

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff claims damages from the defendant for personal injuries sustained as the result of a fall from a height while he was engaged as a carpenter by the defendant at a construction site in Kowloon City on 12th September 1978.

The accident

2. Unfortunately the nature of the plaintiff's injuries is such that he was unable to testify at the trial. The only witness to the accident was a fellow carpenter, Mr. Wong Sum, who was working at the site with the plaintiff.

3. Mr. Wong testified that the plaintiff had been working at a height of two storeys dismantling a raking shore which had been used to shore up the wall of a building on an adjacent site. The raking shore consisted of several rakers which were held together as one unit by groups of timber braces. Each group consisted of three horizontal braces and each brace was approximately 4 inches wide.

4. At the time of the accident the plaintiff had been standing on one brace and was using a crowbar to prise the other braces in that group from the rakers. According to Mr. Wong the defendant had not supplied the plaintiff or himself with safety harnesses or safety helmets nor had he provided a scaffolding from which a worker engaged in the dismantling process could perform his work.

5. In order to preserve balance while standing on his precarious perch, the plaintiff had secured one end of a rope to a water tank on the roof of the adjacent building to which the raking shore was attached, and had tied the other end to the raker next to the position at which he was working. He then held onto the rope with his left hand while he prised off the braces with a crowbar held in his right hand.

6. While this work was progressing, Mr. Wong, who had been working at ground level beneath the plaintiff, suddenly heard a thump. He looked over and found the plaintiff lying unconscious on the ground some ten feet away. It is therefore unclear as to precisely how the plaintiff had come to lose his footing.

7. The defendant, who did not appear at the trial either personally or by legal representative, had filed a defence in which he alleged that safety belts had been provided at all material times at the site and that he had erected a bamboo scaffolding adjacent to the rakers in order to provide a foothold for the workers while they were dismantling the braces.

8. He alleged, further or alternatively, that the accident had been caused either wholly or in part by the negligence of the plaintiff in that he had failed to wear a safety belt which had been supplied and had not ensured his safety either by securing a firm foothold while ascending the bamboo scaffolding or by seeing to it that it was safe to stand on the bracing.

9. I have no reason to entertain any doubt as to the evidence given by Mr. Wong. He impressed me as being a truthful and reliable witness. Moreover, there was no evidence to contradict his testimony.

10. Mr. Barcham, a civil engineer and a director of Vallentine, Laurie and Davies (Hong Kong) Limited and a registered structural engineer under the Buildings Ordinance, testified that in the type of operation in which the plaintiff had been involved it was necessary for safety reasons that an independent access scaffolding should be provided, that safety harnesses should be worn and securely attached to the scaffolding and that ordinary construction hats should be worn by all workers. According to Mr. Barcham, if the plaintiff had been wearing a safety harness at the time at which he lost his footing he would have fallen only two metres and have dangled in the air unharmed.

11. In the light of the evidence before me I am entirely satisfied that no safety precautions had been taken by the defendant for the protection of his workers and that the plaintiff had been left to his own devices to take such measures as he could for his own safety. I have no reason to believe that the plaintiff had been guilty of any contributory negligence. However it may have been that the plaintiff came to lose his footing, I am satisfied that had a safe system of work been provided by the defendant, the plaintiff would not have fallen and injured himself. Accordingly the plaintiff must succeed completely on the question of liability.

Medical evidence

12. Dr. Ng Hon-shing of the Yaumati Psychiatric clinic testified that as a direct consequence of his fall the plaintiff is suffering from post traumatic dementia resulting in intellectual impairment and that he displays symptoms of disorientation, dullness, apathy and depression. The head injuries also brought on post traumatic epilepsy which Dr. Ng said is entirely consistent with the progress of his disability.

13. According to Dr. Ng, the plaintiff's intellectual functions have stabilised and there is little prospect of any future improvement. He is of the view that the epileptic fits will probably persist and that because of his condition he may, unless closely supervised, cause harm to himself or to other people during aggressive episodes.

14. Tests conducted by clinical psychologists revealed that the plaintiff's full scale IQ was 42, thus placing him in the range of moderate grade mental deficiency, that there was a general cognitive intellectual deficiency as a consequence of which the plaintiff is incapable of new learning, of abstract thinking and of living independently of others.

15. In Dr. Ng's view, the plaintiff is a person under disability by reason of mental disability within the meaning of the Mental Health Ordinance and is so incapable of managing and administering his property and affairs that it had become necessary to appoint a next friend to conduct these proceedings on his behalf. When first examined psychiatrically in January 1981 the plaintiff's permanent impairment in respect of his head injury was assessed at between 50% and 80%. Since then the plaintiff has shown little improvement and although he is able to attend to self care and perform simple tasks, he requires constant close supervision.

16. Dr. William Green, who examined the plaintiff on 20th November 1981 and 1st May 1985, generally confirmed Dr. Ng's findings. He testified that the plaintiff was suffering not only from parietal lobe impairment manifested by perservation and dysphasia but from damage to his frontal lobe resulting in self neglect, disinterest in events in the surrounding environment, irascibility, mood changes, poor concentration and a rapid "fall off" in task performance.

17. At the examination on 1st May 1985 Dr. Green found that the plaintiff had made no significant improvement since the 1981 examination, that all his mental processes were gravely reduced and that he was incapable of independent existence and would always require supervision if he were to continue to live outside an institution. Dr. Green expressed the view that the plaintiff should be placed in an institution because he presents a risk both to himself and others. The fact that he has been able to remain living at home is due solely to the loving care shown to him by his loyal wife. However, it is inevitable that he will ultimately be required to live in an institution.

18. Dr. Green agreed that the evidence of the plaintiff's wife that the plaintiff was given to sudden outbursts of temper and violence was consistent with his condition. The damage to his frontal lobes has impaired his powers of self control and when he becomes frustrated he is inclined to behave like an animal. Fortunately, however, the plaintiff can perform his toilet and is able to dress himself. This ability distinguishes him from the purely vegetative patient. According to Dr. Green these skills are learned early in life which explains why the plaintiff has been able to recall them. Other skills which he acquired later in life have been completely forgotten. He is able to pick up pieces of debris at a building site where his wife works and carry them to where he is directed much like a trained animal. If, however, he is left to his own initiative to clear a site of debris he is unable to do so. He would simply stand and look.

19. Dr. Green was unable to say whether the plaintiff's life expectancy has been reduced as it is not known how much damage has been done to the arteries of his brain. It is therefore impossible to say what likelihood there is that the plaintiff may suffer a stroke. However, Dr. Green is of the opinion that the plaintiff's epileptic condition will deteriorate and that his irritability which has already manifested itself in violent behaviour will also worsen.

20. The plaintiff's wife testified that after the accident the plaintiff underwent a change of personality. He became irascible and unduly sensitive to innocuous remarks, and frequently threatened to strike or kill his children. There was evidence that on two occasions he had taken up a chopper and had to be restrained by a co-tenant. After one such occasion the plaintiff had then attempted to hang himself in the toilet by using the cord of a rice cooker. The police were called in and the plaintiff was taken to hospital for five days.

21. According to his wife the plaintiff no longer reads newspapers but simply passes his days by wandering around Shamshuipo. He does not appear to enjoy any activities. When spoken to he exchanges a few sentences and then becomes very ill tempered. Often he talks nonsense and his wife is unable to know whether he understands what she is saying. Social life is out of the question due to the plaintiff's frequent violent outbursts. Although he is able to perform toilet functions he occasionally urinates in the sitting room.

Quantum

Special damages

22. The plaintiff's wife testified that she had incurred travelling expenses totalling $65 in visiting the plaintiff in hospital and that a further sum of $2,400 had been spent in providing him with nourishing food during his stay in hospital and for a period of a year after his discharge. I am satisfied that these sums were expended and are reasonable.

23. I accept that at the time of the accident the plaintiff was earning $130 a day and that he worked an average of eighteen days a month. If it had not been for the accident he would now be earning $170 a day for same number of days a month.

24. Since he has been out of work for 83 months his loss of earnings based on the mean figure of $150 is $224,100 (150 x 18 x 83).

25. Thus the rounded off total award for special damages is $226,560.

Loss of future earnings

26. The plaintiff is aged 37. I consider that the appropriate multiplier is 12. The award under this head is therefore $440,640 (170 x 18 x 12 x 12).

27. Counsel for the plaintiff concedes that there is no evidence as to any expenditure that might be incurred in the event that the plaintiff is ultimately placed in an institution. He therefore expressly abandoned any claim in this regard.

Pain and suffering and loss of amenities

28. Counsel submitted that the plaintiff's disability brings him somewhere within the disaster category defined in the Lee Ting-lam case. I do not think that the plaintiff quite meets the criteria for this category. However, I am satisfied that his disability places him at the top end of the bracket of awards in the gross disability category. Since the Lee Ting-lam case the level of awards has increased by 60%. The award under this head should therefore be one of $240,000.

29. Accordingly I give judgment for the plaintiff in the sum of $907,200. Interest on the general damages for pain and suffering and loss of amenity will be at the rate of 2% from the date of service of the writ until the date of judgment, and on the special damages at the rate of 7% from the date of the accident to the date of Judgment. There will be no interest on the sum awarded for loss of future earnings. I further order that the defendant pay the plaintiff's costs.