HO AH LOOK v. NAM KIN SCAFFOLDING LTD. AND ANOTHER

HCPI156/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.156 OF 1996

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J U D G M E N T

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The Plaintiff's Claim

1. The Plaintiff claims against the 1st Defendant as a subcontractor of the 2nd Defendant and as the party responsible for the erection of a bamboo scaffold at the site of the accident, namely, the south side of China Ferry Terminal, China Hong Kong City, 33 Canton Road, Kowloon ("the site"). The Plaintiff claims against the 2nd Defendant as the principal contractor responsible for the replacement of glass curtain wall at the site. The Plaintiff was employed by the 1st Defendant as a skilled scaffolder.

2. On 24th February 1993, at about 1 p.m., during the course of his employment with the 1st Defendant in the erection of a bamboo scaffold at the site, the Plaintiff slipped and because he had not been provided with any safety belt or any securely anchored safety belt or any safety measure, he fell from the scaffold at a height of about 4.6 metres to the ground and thereby sustained head injury, fracture of the right femur and fracture of the superior pubic ramus of the pelvis.

3. The Plaintiff claims that the said accident was caused by the negligence and/or breach of contract of employment of the 1st Defendant, their servants or agents, and/or breach of statutory duty of the 2nd Defendant, their servants or agents.

4. On 20th August 1993, the 2nd Defendant was convicted of the offence of failing to provide a suitable and sufficient anchorage and suitable fittings for the safety belt provided, contrary to Regulation 38Q(3) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59.

5. The Plaintiff claims that as a result of the accident, he suffered a laceration on the forehead, abrasion on the nasal bridge, subtrochanteric fracture of the right femur and fracture of the superior pubic ramus of the pelvis. He was admitted to Queen Elizabeth Hospital where an operation was performed on 26th February 1993 for reduction and fixation of the right femoral fracture with intra-medullary nail. On 5th March 1993, a second operation was performed to revise the screws used for fixation of the fracture. Two further operations were performed on 17th and 24th March 1993 due to wound infection. He was discharged on 18th May 1993. He attended regular follow-up treatment at a specialist clinic. He was re-admitted to Queen Elizabeth Hospital on 20th December 1993 for a further operation to remove the intra-medullary nail, to debride the wound, to ream the femur and to insert gentamycin beads and was subsequently discharged on 31st December 1993. A small amount of discharge from the wound continued until March 1994 and did not cease completely until June 1994. The Plaintiff is able to walk independently but there is pain whilst walking. The range of movement at the right hip was restricted to just 30(. His right lower limb was shortened by 3 cm and he has to wear special shoes and walk with a mild limp. He has been advised not to return to his pre-accident work since this requires climbing heights. He is handicapped on the labour market.

The Defence

6. In the Defence filed on behalf of the 1st and 2nd Defendants, the accident was admitted. It was denied that there was any negligence or breach of statutory duties. The Defendants also averred that the accident was caused or contributed to by the negligence on the part of the Plaintiff.

History

7. On 25th November 1998, the solicitors acting for the Defendants were given leave to cease to be their solicitors upon compliance with the requirements of O.67, r.6(1). On 7th December 1998, it was ordered by Seagroatt J that the 1st Defendant should have leave to be represented by one of its directors, namely Mr Tang Fan Yuen in the proceedings. On the hearing before me on 27th May 1999, the 2nd Defendant was absent and was not represented by lawyers. The 1st Defendant was represented by Mr Tang Fan Yuen. On 11th September 1998, Master Woolley had made an order ordering exchange of witness statements. However, no witness statements were filed by the Defendants at all. Under O.38, r.2A(10) where a party fails to comply with a direction for the exchange of witness statements, he shall not be entitled to adduce evidence to which the direction related without the leave of the Court. This matter was put by me to the representative of the 1st Defendant and he then indicated that he would wish only to cross-examine the evidence to be adduced by the Plaintiff but would not seek to call any evidence to support the Defence case.

The Evidence

8. The first witness called by the Plaintiff was Dr Arthur Chiang Si-chung. He produced two medical reports dated 14th April 1995 and 5th January 1999 which confirmed the averments of the injuries as pleaded in the Statement of Claim. Dr Chiang confirmed that he examined the Plaintiff on 22nd March 1995. By way of a summary of the injuries suffered by the Plaintiff, Dr Chiang said that the Plaintiff suffered a comminuted fracture of the right thigh bone (femur) and that this was initially fixed by an implant of a nail into the whole femur. Complications arose because of infection in the wound, in the hip joint and inside the cavity of the femur bone. That required a number of operations to clean up the infections. Removal of the implant was done. Dr Chiang said that the Plaintiff's hip became stiff and the movement of the hip was reduced substantially. A mal-union resulted in the right leg being shortened by 3 cm. The right foot was now left in an outward pointing position. There is also a narrowing of the hip joint space. The fracture of the superior and inferior pubic ramus of the pelvis is now reasonably healed. However, Dr Chiang said that there was a possibility of the infection recurring. Dr Chiang gave evidence that the total percentage of whole person impairment was 35%. The Plaintiff would not be able to return to his pre-injury job as a scaffolder, and so Dr Chiang assessed the percentage of loss of earning capacity to be at 50%. Dr Chiang examined the Plaintiff again on 18th December 1998 and found that the permanent impairment and the loss in his earning capacity as suggested in the previous examination remained about the same. He said that the Plaintiff's capacity for daily activities and his endurance has been much decreased. If the Plaintiff were to walk for a long period of time, he would suffer pain. He confirmed in cross-examination that the pelvis of the Plaintiff was originally problem-free.

The Plaintiff's Evidence

9. The Plaintiff gave evidence and adopted the contents of his witness statement dated 30th November 1998. In the statement the Plaintiff said he was born in 1931 and at the date of the statement was 67 years of age. He had worked for about 40 years as a scaffolder. He was employed by the 1st Defendant and was paid HK$500 per day. He normally worked 26 days a month and earned on average about $13,000 a month. On 24th February 1993, while he was erecting the said bamboo scaffold at the site, he slipped and fell from the scaffold at a height of about 4.6 metres to the ground. He had not been provided with any equipment by the 1st Defendant except for a safety helmet which he was wearing at the time of the accident. He was never told by the 1st Defendant and/or 2nd Defendant that any other safety equipment, especially safety belt, was available for use and he was never told by the Defendants about possible anchorage points for the safety belt. He had to bring and use his own pair of scissors and knife for carrying out the works to erect the said bamboo scaffold at the site. He was not given any specific instructions by the 1st Defendant nor any warnings of the risks.

10. After the accident, the Plaintiff was granted sick leave until 31st December 1995. In about early 1996, he tried to find suitable jobs in order to resume his work again but was unable to find a job because of his poor education and his disabilities suffered as a result of the accident. Later he registered himself with the Labour Department to try and find a job but no suitable jobs were found and up to the date of the trial, he was still unemployed. In his evidence he confirmed that he had been working for the 1st Defendant for seven to eight years, but throughout his employment with the 1st Defendant he was never provided with a safety belt by his employer.

11. He had five operations but these did not include the operation he had in January 1999 which was necessitated by the infection of his wound. He said that sometimes at night after he had walked for a long time, he would feel pain. In bad weather, especially on rainy days, he would feel pain on his right side from his hip to his toes. He said that before the accident he was very healthy. He said that if it were not for the accident, then he expected to retire as a scaffolder at the age of 70 or 70 odd. He said it was very common for a scaffolder to work up to the age of 70. In cross-examination, he said that on the day of the accident, he had gone to the site in a lorry carrying bamboo poles. He did not go to the site in the company van. He knew that there was some equipment in the company van but he denied having seen any safety belts in the van. He was asked if he had other jobs apart from the job with the 1st Defendant and he denied that he had. He was asked about his tax return form where there was an item of $39,882 under the heading "Other Income" and he said he did not know what this income was because his son had filled out the tax return form for him. He said he would be able to work until 70 odd years. When asked if he had to take some blame for the accident, he said "yes" and that the extent of his blame should be 10%.

Finding of Liability

12. At common law, the duty of an employer to his employees is to take reasonable care for their safety. In Wilsons and Clyde Coal Company Limited v English, the general nature of the duty owed by an employer to an employee was described by Lord Wright as follows :

"I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company and whether or not the employer takes any share in the conduct of the operations. The obligation is threefold as I have explained (i.e. the provision of a competent staff of men, adequate material, and a proper system and effective supervision)." (Charlesworth and Percy on Negligence, 9th Ed., para.10-02)

At para.10-26, the learned author said that it has now been firmly established by the House of Lords that the general duty of an employer to his employee to take reasonable care for his safety does not come to an end merely because the workmen has been sent to work at premises which are occupied by a third party and not by the employer. At para.10-44, it is said that if the nature of the work is such that a reasonable employer would provide his workmen with some protective device or clothing while doing the work, there is a duty to provide it and to take reasonable care to see that it is used.

13. I find that because of the inherent dangers involved in the work of erecting bamboo scaffolds, there was a duty on the part of the 1st Defendant to provide a safe system of work to the Plaintiff and in so providing a safe system of work, it was incumbent on them to provide the Plaintiff with the necessary equipment to ensure that the work would be carried out without any dangers to the Plaintiff. In addition to providing the Plaintiff with a safety helmet, I find that it was incumbent on the 1st Defendant to also provide the Plaintiff with other equipment necessary to render the work safe and this equipment must include the most basic items such as a safety belt and suitable anchorage points on the scaffold or on the building where the renovation works were to be carried out so that the safety belt provided could have been anchored to enable the Plaintiff to work in safety so that he would not fall from a height to the ground thereby injuring himself.

14. I find on the evidence that the 1st Defendant only provided the Plaintiff with a safety helmet but failed to provide him with a safety belt and failed to provide either on the scaffold or in the adjoining building suitable anchorage points for the safety belt. I therefore find the 1st Defendant to be negligent towards the Plaintiff to whom they have a clear duty of care. I find that the 2nd Defendant was in breach of his statutory duty to provide the Plaintiff with suitable nets or safety belt or other suitable and sufficient equipment so as to prevent, so far as practicable, injury to the Plaintiff and in particular, that he failed to provide suitable and sufficient anchorage and suitable fittings, contrary to the regulations under the Factories and Industrial Undertakings Ordinance. I find that the conviction of the 2nd Defendant of the offence under Regulation 38Q(3) is sufficient evidence for me to make the finding that the 2nd Defendant was in fact in breach of this statutory duty on the day in question. I therefore find that both Defendants are jointly and severally liable to the Plaintiff for the injuries sustained by the Plaintiff. I find that the Plaintiff did not contribute to or cause the said accident by any negligence on his part.

Finding on Quantum

15. I give judgment for the Plaintiff against both Defendants in the sum of $2,081,328.08 and costs to be taxed if not agreed. I also award interest on the sum of $2,081,328.08 at judgment rate from date of judgment to date of payment. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.