TSEUNG TSAN FAI v. TANG SHUI CHING t/a LEUN HOP

HCPI 172/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 172 OF 2006

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J U D G M E N T

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1.  In this action, the plaintiff claims against the defendant for damages in respect of injuries he sustained during an industrial accident that occurred on 4 March 2003.

The undisputed facts

2.  The defendant was a decoration works contractor. The plaintiff had since 1999 worked for the defendant on a causal basis.   

3.  In March 2003, the defendant was engaged to demolish an illegal structure annexed to the premises at the rear of the mezzanine floor of a building at No.24 Luen Cheong Street, Luen Wo Market, Fanling, New Territories, and also the remedial and plumbing works incidental thereto (collectively referred to as “the Works”). The plaintiff was one of the workers employed by the defendant to carry out the Works.

4.  Before the commencement of the Works, there was access to the mezzanine floor from within the building. By 3 March 2003, the brick walls of the illegal structure had been demolished leaving the concrete floor exposed. The previous internal access had also become sealed off with the erection of a metal frame. The only access to the concrete floor of the illegal structure was by means of a wooden ladder that was placed against the external wall of the building and resting on the ground of the back alley abutting the building.

5.  At about 9:30am on 4 March 2003, when the plaintiff was using the ladder to get down from the concrete floor of the illegal structure, fell from it to the ground. As a result, he was injured and taken to hospital.

The action

6.  On 23 February 2006, the plaintiff commenced this action against the defendant, claiming damages in breach of the implied duty of care under the employment contract, breach of common law duty of care and negligence as well as breach of statutory duty.

7.  The defendant was legally represented when he filed the Defence, which denies both liability and quantum.  He became unrepresented on 22 December 2006 and has since taken no active step in the proceedings. He was absent at all the subsequent checklist review hearings. He has not filed any list of documents or witness statements. He was also absent at the trial, despite being served with notices of the hearing.

Employees’ compensation proceedings

8.  Apart from this action, the plaintiff had also brought employees’ compensation claim in the District Court (DCEC 92 of 2005). The defendant admitted liability and judgment was entered against him by consent on 18 December 2006. The hearing for assessment of damages took place on 7 June 2007. The defendant was absent. An award of $355,924 together with interest was made. The plaintiff has in total received the sum of $418,099 under the employees’ compensation claim.

The accident

9.  The only witness called at the trial of this action is the plaintiff, who essentially adopted his witness statements. There are also documentary evidence, including the accident report of the Labour Department and photographs of the scene of accident taken on the day of accident. There are medical reports of the plaintiff from government hospitals, which were ordered to be adduced as agreed evidence, and the medical report of Dr Fu Wai Kee, which was ordered to be admitted without the need to call the doctor.

10.  On the basis of the plaintiff’s evidence, which I accept, and the photographs he adduced, I find that the accident happened as follows:

(1)	The demolition of the illegal structure had completed on 3 March 2003. Works to install new piping were to commence the following day.
(2)	After the demolition work was finished, the plaintiff was instructed to and he did seal off the opening leading from the illegal structure to the flat below. As a result, the previous internal access to the mezzanine floor became sealed off.
(3)	Some time in the evening of 3 March 2003, the defendant’s son brought a wooden ladder to the site. This was the only means of access to and from the mezzanine floor and the exposed concrete floor, where piping works were to be done.
(4)	The wooden ladder was placed against the side of the building and was not tied to the wall or fixed to any piping. It was also shorter than the height of the mezzanine floor.
(5)	In the morning of 4 March 2003, it had rained a little. The ground was wet and muddy and also not completely level. There were also debris and other objects lying on the back alley near where the ladder was placed.
(6)	After climbing up the ladder to inspect the existing drainage system, the plaintiff was descending from the mezzanine floor when the ladder swayed. The plaintiff lost balance and fell on to the ground.
(7)	At the time of the accident, neither the defendant nor his son, from whom the plaintiff took instructions, was present at the site.

11.  Additionally, the accident report compiled by the safety officer of the Labour Department, which also contained photographs of the scene of accident, show and confirm the following facts:

(1)	The building where the Works were being carried out is a seven-storey residential building. The mezzanine floor (referred to as the flat roof in the report ) was 3.2 m above the ground.
(2)	The wooden ladder is 2.8 m high and is therefore 0.4 m shorter than the height of the mezzanine floor.
(3)	As at 4 March 2003, the wooden ladder was the only access to and from the mezzanine floor.
(4)	The floor edge of the mezzanine floor had no guardrails for the plaintiff to hold on and to maintain balance when leaving the mezzanine floor to climb down the ladder.
(5)	The wooden ladder was just leaning against the wall and was not secured either at the top or bottom part.
(6)	There were debris and objects lying on the ground near to where the ladder was placed.

Findings on liability

12.  On the basis of the above facts, I am of the view that the plaintiff has proved that the defendant was negligent and/or in breach of his duty of care both under the employment contract and the common law. Specifically, I find that the wooden ladder was not a suitable and safe means of access to and from the mezzanine floor in that:

(1)	The ladder was not long enough to reach the concrete floor of the mezzanine floor such that the plaintiff might have to feel for the top rung of the ladder with his feet when descending from it.
(2)	The ladder was not secured either at the top or bottom.
(3)	There was no one to assist the plaintiff or to foot the ladder or to hold the ladder in position when the plaintiff was ascending or descending it.
(4)	The ground on which the ladder was resting was uneven with debris and other objects lying around. The ladder could easily become displaced or dislodged or unstable.
(5)	The ladder was not equipped with any handrail or means to enable the plaintiff to maintain his balance while climbing up and down.

13.  The defendant, as an employer, had therefore failed to take reasonable steps to ensure the safety of the plaintiff in the discharge of his duties in that:

(1)	He did not provide a safe means of access to and from the mezzanine floor where the plaintiff was to carry out his works.
(2)	He did not provide a safe place of work and a safe system of work.
(3)	He did not provide sufficient manpower to assist the plaintiff so that he could carry out his work in a safe manner.
(4)	He had not given proper warning or supervision to the plaintiff with respect to the condition and use of the ladder.

14.  I am further satisfied that the defendant was an occupier of the work places relating to the Works, namely, the mezzanine floor (including the concrete floor), the wooden ladder and the part of the back alley where the ladder was resting and that the plaintiff was a lawful visitor on the site. On the findings set out above, the defendant had failed to take reasonable care for the safety of the plaintiff when he was working on the site.

15.  Moreover, as a contractor, the defendant was under a number of statutory duties in relation to the safety of his workers under the provisions of the Construction Sites (Safety) Regulations, cap.59I. Under Regulation 38A(1), a contractor responsible for a construction site is required to ensure the safety of any person working at a height in the construction site. Under Regulation 38A(2), the contractor is further required to ensure that, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained. A contractor is also required by Regulation 38C to provide safe means of support, including a ladder, where work cannot be safely done on or from the ground or from part of a permanent structure. On the facts as found, the defendant had failed to comply these statutory duties.

Contributory negligence

16.  The defendant had raised the defence of contributory negligence in the Defence. It was pleaded that the wooden ladder was secured at the top by a rope that was tied to a water pipe and that the defendant’s son had given the workers, including the plaintiff, instructions on the proper use of the ladder. It was also pleaded that the plaintiff was not acting within instruction when he went up and down the ladder and that he did so in a dangerous manner, contrary to the safety instructions given by the defendant’s son.  All these were in direct contradiction to the evidence adduced by the plaintiff. Given that the defendant was absent and no evidence was adduced by him, there is nothing to support the allegations in the Defence.  The plea of contributory negligence is thus not made out.  

The plaintiff’s pre-accident employment and earnings

17.  The plaintiff was born on 15 August 1952. He was 50 years old at the time of the accident and is 55 at the time of the trial. He received education in Mainland China up to primary school level. He came to Hong Kong in 1974 and had since been working as a construction site worker. He had taken apprenticeship as a welder. He mostly worked as a welder at construction sites and also on interior renovation works. He is married with no children.

18.  In the employees’ compensation claim, the court has found that the plaintiff was paid $600 a day by the defendant and that he worked on average 21 days each month in the 12 months prior to the accident. The plaintiff accepts these findings as the basis for the calculation of his damages in this action.

The injuries

19.  As a result of the fall, the defendant lost consciousness for about 10 minutes. He regained consciousness after being transported to the ambulance. He suffered injuries to the head and the left elbow. There were bruises and swelling in the left peri-orbital region. There was bleeding from the left elbow. X-ray showed compound fracture left ulna bone and fracture dislocation left radial head. There was no bony lesion.              

 Medical treatments and expenses

20.  The plaintiff was taken to North District Hospital and later admitted to the orthopaedic unit. He underwent five operations in total. The first was on 10 March 2003 during which his left elbow was treated with open reduction and plating. Later, the peri-orbital swelling subsided. He was discharged home on 19 March 2003. 

21.  The plaintiff had a second operation on 3 April 2003 to remove a bony fragment in the left elbow joint, which was discovered during follow-up treatment. He was discharged on 7 April 2003. The elbow was immobilized with brace. He attended follow-up and physiotherapy treatments.

22.  As the plaintiff complained of numbness in his left elbow, he was re-admitted into hospital in August 2003. An arthroscopic release of the left elbow was performed on 29 August 2003 to reduce the stiffness. He was discharged on 4 September 2003.  The plaintiff continued to complain of numbness in his left hand. He was later diagnosed of ulnar nerve neuritis.  A fourth operation was done on 30 September 2003 and anterior nerve transposition was performed. He was discharged home on 10 October 2003.

23.  On 16 July 2004, the plaintiff underwent a 5^th operation to remove the implants. He was discharged home on 17 July 2003.

24.  The plaintiff continues to receive outpatient follow-up treatments.  His sick leave expired on 30 April 2005.

25.  In June 2006, the plaintiff was admitted into hospital to remove a brain tumour, which was unrelated to the accident.           

26.  The defendant had reimbursed the plaintiff’s medical expenses incurred up to July 2004.  After July 2004, the Hospital Authority has waived the plaintiff’s medical expenses on account of his being a recipient of comprehensive social security allowance (CSSA). It is anticipated that he will cease to be eligible for CSSA upon receipt of the compensation herein, in which case he may not be eligible for waiver of medical expenses.

Present medical condition and future medical needs

27.  The plaintiff now has scars and tenderness over the left elbow and wasting of left forearm and hand. The bone fractures had united. There is, however, post-traumatic degeneration of the left elbow and deformity of the radial head. There is also decrease in the range of movement and power of the left upper limb joints and decrease in sensation of left forearm and head. He complains of constant pain in the left elbow and arm, especially when there is a change in the weather. He also experiences weakness, numbness and stiffness in the left upper limb. He also has epilepsy and memory problems.   

28.  Dr Fu Wai Kee, who examined the plaintiff in July 2005 predicts that osteoarthritis of the plaintiff’s elbow will further deteriorate with increase pain and stiffness. He is of the view that in about five years’ time, the plaintiff will have to undergo surgery to have fusion of the elbow joint, followed by three months of physiotherapy.  The cost of surgery in private sector is estimated to be around $50,000 to $60,000 and that of the physiotherapy is around $10,000. He further indicates that the plaintiff will also require to undergo manipulation of the shoulder under general anaesthesia to improve the range of movement. The cost for this in the private sector is about $15,000.    

Pain suffering and loss of amenities (PSLA)

29.  The plaintiff claims to come under the serious injury category for PSLA. In light of the medical evidence, I accept that the claim of $450,000 is appropriate.

Loss of earnings and working capacity

30.  The plaintiff has not been able to return to his pre-accident employment as he has difficulties doing manual lifting. He has since the expiry of the sick leave been receiving CSSA. According to the plaintiff, he had tried to look for employment as a watchman or security guard, but without success. In Dr Fu’s assessment, however, the plaintiff will be able to do some lighter duties. For the purpose of quantification of his claim, the plaintiff is prepared to assume he can find a sedentary job with a monthly income of $5,000.

31.  For his pre-trial loss of earnings, the plaintiff has properly excluded from the calculation, a three months period representing the period of his hospitalization to remove the brain tumour. 

32.  As for future loss of earnings, the plaintiff says that but for the accident, he should be able to work until 65 years old. I agree that a multiplier of 7 is appropriate. On the basis of Dr Fu’s assessment, it is proper to assume that the plaintiff will be able to find a sedentary job earning $5,000 per month.  Mr Clough had initially sought to include a 5% employer’s MPF contribution in the claim. As there is no evidence that the plaintiff had ever joined the MPF scheme, there is no evidential basis for the claim.

33.  Mr Clough further included in his quantification a claim for loss of earning capacity. I accept that because of the injury and the age and education level of the plaintiff, he will probably be handicapped in the labour market. I however consider that the amount of $90,000 claimed (representing 18 months of earnings) is on the high side having regard to the plaintiff’s remaining working life. There is also not much evidence on his attempts to find jobs after the expiry of the sick leave period and the difficulties experienced by the plaintiff. I consider the amount of $45,000 (i.e. 9 months x $5,000) to be appropriate.    

Summary of calculation of damages

34.  Accordingly, the calculation of the damages is as follows:

Pain suffering & loss of amenities
Award	$450,000
Interest at 2% p.a. from date of writ	$15,750	$465,750
Special damages
Medical expenses	nil
Travelling expenses	$2,938
Pre-trial loss of earnings :
($600 x 21days x 954-3) months)	$642,600
Interest at 5.375% from date of accident to date of trial	$162,625	$808,163
Future losses
Future loss of earnings :
($600 x 21days - $5000) x 12 x 7	$638,400
Loss of earning capacity	$45,000
Future medical expenses :
($55,000 + $10,000 + $15,000)	$80,000	$763,400
Total award
$465,750 + $808,163 + $763,400	$2,037,313
Less : employees’ compensation claim award	$418,099	$1,619,214

Conclusion

35.  For the above reasons, I enter judgment for the plaintiff for the amount of HK$1,619,214, together with interest at judgment rate and

the costs of this action, to be taxed if not agreed. The plaintiff’s own costs are to be taxed under the legal Aid Regulations.