KWAN YUK LIN v. YING WAH CIVIL ENGINEERING CO LTD AND ANOTHER

HCPI 869/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 869 OF 2007

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J U D G M E N T

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I. Introduction

1.  In November 2004, Madam Kwan (the Plaintiff) was a construction site casual labourer employed by Ying Wah (the 1^stDefendant) to work at the construction site of Ngong Ping Public Transport Interchange at Ngon Ping, Lantau, Hong Kong (“the Site”). 

2.  Maeda (the 2^ndDefendant) was the main contractor of the Site, and Ying Wah was one of its subcontractors there.

3.  It is common ground that in the afternoon of 30 November 2004, Madam Kwan was crying out from the bottom of a manhole (“the Manhole).  She was found to have suffered certain injuries, and was sent to the hospital. 

4.  Madam Kwan says she fell into the Manhole while at work, when she tried to remove a plank which covered it.  She did not know that there was a Manhole underneath the plank.

5.  By way of the present action, she claims for damages in the sum of some HK$1,470,000 against Ying Wah and Maeda for negligence, breach of occupiers’ and statutory duties, which resulted in the accident and her injuries.

6.  Both Ying Wah and Maeda deny liability.  However, if found liable, both dispute quantum and say Madam Kwan was contributorily negligent.   They also claim contribution to the liability against each other. .

7.  The issues before me are thus:

(1)  Whether Madam Kwan suffered the accident in the manner as she describes it.

(2)  If so:

(a)  whether the accident was caused by the negligence or breach of duties of Ying Wah and Maeda;

(b)  whether Madam Kwan was contributorily negligent in causing the accident;

(c)  what is the apportionment of liability, if any, between Ying Wah and Maeda.

(3)  The quantum of damages.

II. The background facts

8.  Unless otherwise stated, the following are not in dispute.

9.  On the date of the accident, Madam Kwan was assigned by Mr Cheung Yuen Ching (“Mr Cheung”) of Ying Wah to work with other colleagues at the Site to apply sealants to the expansion joints between the concrete slabs on the ground.     The leader of this team of workers was Mr Chow Yin Tong (“Mr Chow”).

10.  On the same date, Ying Wah’s subcontractor was also at the Site to carry out testing works of the underground sewage system by CCTV equipments.  This involved the workers opening the manholes and going down into them.

11.  On that day, Madam Kwan and his colleagues were aware of the fact that such CCTV testing works were being carried out at the Site.

12.  In the afternoon on that day, while Madam Kwan was working at the Site, she cried out for help from the bottom of the Manhole.  Other workers came to her rescue.  She said she had fallen into it.

13.  After being helped out of the Manhole, she was sent to the Accident and Emergency Department of the Princess Margaret Hospital (“PMH”). 

14.  At the A& E Department, she was found to have suffered contusion to her chest and mid low back, minor abrasions of her right forearm and right knee, and a fractured lower sternum.  A few months later, she was also diagnosed to have suffered a compression fracture of the thoracic vertebra T12. 

15.  Madam Kwan has since the date of the accident been given a total of 24 months of sick leave. 

III. The trial of the issues

16.  There are only two witnesses who have given evidence at trial: Madam Kwan for herself, and Mr Cheung for Ying Wah.  Maeda has not called any witnesses.  Mr Cheung did not see how the accident occurred.  I will deal with the relevant parts of their evidence when I discuss each of the issues below.

Issue 1: How did the accident occur?

17.  It is for Madam Kwan to prove that the accident occurred in the way she has described.   According to her, the accident occurred in the following manner.

Madam Kwan’s case and her evidence

18.  On the date of the accident, she was assigned to work with three other colleagues.  Other than Mr Chow, there was one known to her as Kwong Chai (光仔) and another one whom she met only for the first time on that day.  She did not know the name of this worker, and for convenience, I would refer to this worker as the new worker below.

19.  The group therefore had four workers including Madam Kwan herself.

20.  This group of workers was to carry out the work of applying sealants to the expansion joints between the concrete slabs on the ground of the Site.

21.  Within this group, she and the new worker were assigned the task (by Mr Chow) to prepare the joint lines for the sealants to be applied.  The preparatory works included sweeping clean the expansion joints with a brush, applying adhesive tapes along the sides of the expansion joints, and then the liquid glue to the joints by a brush. 

22.  After these preparatory works had been carried out, Mr Chow and Kwong Chai would apply the sealants to the joints.  And later when the sealant dried up, she and the un-named colleague would tear away the adhesive tapes.

23.  The group started the works at about 8 am on that date.  They knew that there were other workers carrying out works at the manholes on the Site. 

24.  Madam Kwan said at about 3 pm on the date of the accident, while she was working at a particular spot on the Site, the new worker asked her to move a plank (“the Plank”) lying nearby (which blocked some of the expansion joints) so that they could continue with the preparatory works over the expansion joints covered by the Plank.  The Plank measured about 3 feet by 6 feet. 

25.  She therefore picked up the Plank with her hands holding respectively each of its ends, and pushed the Plank forward in front of her at one go with force.  As she did that, she suddenly fell into a manhole (“the Manhole”), which was underneath the Plank. 

26.  She fell into the Manhole with her legs down first.

27.  Madam Kwan said before the fall, she was not aware of the fact that there was the Manhole underneath the Plank.   There was no warning or sign put on the Plank showing that there was the Manhole underneath.    She also said she did not see any traffic cones or reflective tapes put around the Plank.

28.  She however accepted under cross-examination that she saw a metal manhole cover lying next to the Plank before she tried to move the Plank away.  She also accepted that with her previous experience of working on the Site in the previous days, she knew that there were a number of manholes at the Site.

The Defendants’ case and evidence

29.  As I mentioned above, other than Madam Kwan, no other person giving evidence witnessed how the accident occurred. 

30.  Mr Cheung, who worked as Ying Wah’s foreman on the Site, gave evidence as follows.

31.  At about 8 am on the morning of the date of the accident, he assigned Madam Kwan to work with two other workers.  They were Mr Chow and one Mr Lam Chow Wing.  

32.  The group had therefore only three workers including Madam Kwan.

33.  Mr Chow was the leader of the group and they were to carry out the work of applying sealants to the expansion joints. 

34.  During the morning briefing given to these workers, Mr Cheung told them (including Madam Kwan) not to work near the manholes at the Site, as there would be works carried out there by other workers.  He then specifically took Mr Chow around the Site to point out to him the locations of the manholes, so as to ensure that Mr Chow and his co-workers would not work near these manholes.

35.  At about 1pm on that day, Mr Cheung came to the area where the accident eventually occurred with some other workers for the CCTV works.   He saw the Plank and that there was one traffic cone put on top of the Plank, and another two put on its sides, with some safety reflective tapes wrapped around these three cones and tied onto a nearby lamppost.  He could still remember this now because on during that visit, the workers had to remove the cones and the Plank to look at the inside of the Manhole, and it was he who put the cones back to their original positions. 

36.  The cones and the reflective tapes were put there by one of the CCTV workers, known as Mr Lee Kwok Fong.  Mr Cheung understood that the cones and tapes were placed there to avoid any vehicles being driven into the area where the CCTV people would be working.

37.  When he arrived at the accident scene later when told of the accident, Mr Cheung found that the cones were scattered around there, and that some of the tapes were dangling loose while the others were off laying on the ground.

38.  Mr Cheung also says that before the date of the accident, he had in previous occasions warned Madam Kwan not to go down to the manholes to urinate, as there had been complaints made to him by other workers that she had been doing that.   When so spoken to, Madam Kwan denied that she had been urinating in the manholes.

39.  It is Maeda’s pleaded case that Madam Kwan suffered the fall and injuries when she herself went down to the Manhole to urinate.

Evidence not in controversy

40.  The following is what I regard to be the relevant evidence which is not in controversy between the parties:

(1)  The Manhole was situated within one of the rectangular concrete slabs at the Site.  There were four extension joints around the concrete slab where the Manhole was situated.

(2)  The distance between the two opposite expansion joint lines at the ends of the shorter side of the concrete slab was about 189cm (about 6.28 feet).  The distance between the opposite joint lines at the longer side of the concrete slab was about 205cm (i.e, about 6.75 feet).

(3)  The Plank measured 6 feet by 3 feet.

(4)  The opening of the Manhole itself measured about 2.4 feet by 3 feet, and its depth was close to 9 feet.

Discussion

41.  After assessing the evidence as a whole (including the above uncontroversial evidence), I conclude that Madam Kwan’s evidence on how the accident occurred is unreliable and not credible.  My reasons are as follows.

42.  First, I find an essential aspect of Madam Kwan’s evidence on how the accident occurred inherently incredible: 

(1)  There is no dispute on the physical dimensions of the four joint lines in relation to the Manhole, the dimensions of the Manhole and the dimension of the Plank.

(2)  Given these dimensions, if the Plank was to fully conceal the uncovered Manhole (as said by Madam Kwan) before the accident, it could have at most covered only small parts of two of the four joint lines, no matter in whichever way it was placed. 

(3)  If that was the case, in order to carry out the preparatory works for the covered joint lines, all she had to do was to gently and slightly move or push the Plank a little away from the covered joint lines, instead of having to lift it up and shoved it forward as suggested by her.  

(4)  On the other hand, if the Plank was to be placed in such a way so as to cover substantially one or two of the joint lines (as also said by Madam Kwan), then part of the opening of the Manhole would have been exposed. In which case, she would have known the existence of the Manhole.

43.  Secondly, under cross-examination and repeated questions from the Court, Madam Kwan confirmed a few times that after lifting up the Plank and pushing it forward, she suddenly fell into the Manhole without taking any steps or moving forward.  I find this evidence similarly incredible, as if this were in fact what had happened, it is beyond me as to why and how she could have fallen into the Manhole. 

44.  Thirdly, I find Madam Kwan not a reliable witness, as she repeatedly changed her evidence at trial in order to suit her case on how the accident occurred:

(1)  Under cross-examination by Ying Wah’s counsel, she confirms that she could remember the accident clearly.

(2)  In the evidence before the Court, there are photographs of the accident scene taken by an inspector of the Labour Department when he carried out an investigation of the accident on 4 April 2005, about 4 months after the accident.  These photographs were taken when the inspector visited the Site in the presence of Madam Kwan and her daughter to re-create the accident scene.  Some of these photographs show the position of a plank which covered the Manhole.    It is common ground that this plank was of the same or similar size as that of the Plank.

(3)  Madam Kwan confirmed a few times with the Court and under cross-examination at trial that the position of the plank shown in these photographs was similar to the position of the Plank immediately before she moved it and fell into the Manhole.

(4)  The position of the plank in these photographs however showed that the plank only marginally covered a small part of one of the expansion joints, and therefore, in order to enable her and the other colleague to carry out the preparation works, it would not have been necessary for her to move the Plank in the way as suggested by her.  When this was pointed out to her under cross examination by Ms Lau, counsel for Maeda, Madam Kwan immediately changed her evidence and said the position of the plan shown in the photograph was incorrect.

(5)  When asked by Court if she could then show on the photograph what should be the correct position of the Plank immediately before the accident, she drew on it a new position of the Plank which covered substantively two opposite joint lines.  This position was significantly different from the one originally shown in the photograph. 

(6)  When it was pointed out to her that this position of the Plank was impossible as, given the physical dimensions, the Plank could not have covered at the same time the two opposite joint lines, Madam Kwan changed her evidence again and said the position was still incorrect.  She then drew another new position of the Plank on the photograph.

(7)  However, she was shown under cross-examination once again that, by reason of the physical dimensions, this new position of the Plank would have exposed part of the opening of the Manhole.   Then, when asked by Ms Lau as to why she had changed her evidence for at least three times, she just stopped answering questions for a long while. 

(8)  As this part of the cross-examination came close to the end of the first day of trial, at the suggestion of her counsel that Madam Kwan might have been tired in giving evidence for the whole day, the trial was adjourned to the next day so as to give Madam Kwan some rests.  

(9)  When Madam Kwan came back to give evidence the next day, she immediately said that she simply could not remember the position of the Plank as it was such a long time ago.  She also became very agitated in answering questions under cross-examination, and frequently posted questions back to counsel as to how it could be expected of her to remember all the matters.

(10)  I find this part of Madam Kwan’s evidence unreliable, as there are no good reasons to explain why she had to change her evidence on the position of the Plank so many times.  This is particularly so in light of her initial evidence that she could remember the accident clearly, and her initial confirmation that the position of the plan recreated by the inspector was correct.   It must be noted that it is inherently more likely that she could better remember the position of the Plank 4 months after the event (when the photographs were taken) than now.

(11)  Coupled with her demeanour in answering question as described above, I find Madam Kwan not a credible witness.

45.  Mr Charles Wong for Madam Kwan submits that the Court should not reject Madam Kwan’s evidence by reason of her inability to give detail accounts as to the circumstances surrounding the accident, and her inconsistency in giving the above evidence. Mr Wong says the inability of Madam Kwan to give clear and coherent evidence should be looked at against, and could be explained by, her low educational background, illiteracy, inability to understand her own evidence and the effect of her evidence on her pleaded case, and the fact that she is suffering from medically confirmed post-concussion syndrome with memory loss and psychiatric disability.

46.  With respect, I do not accept Mr Wong’s submissions:

(1)  In answering the questions put to her in relation to the position of the Plank, Madam Kwan’s did not initially say that she could not remember it.  As I said above, she confirmed that she could remember the accident clearly, and that it was only on the second day of the trial that she started to say that she could not remember any of the details of the accident, as it happened a long time ago.   Looking at her evidence as such, I do not accept Mr Wong’s submission that the lack of memory in relation to how the accident occurred is a likely explanation to Madam Kwan’s inconsistency in her evidence.

(2)  Further, Mr Wong’s submission that Madam Kwan was clearly unable to understand her own evidence, as the evidence given by her adversely affects her case, is premised on the assumption that her case is a correct one in the first place.  There is no basis for such assumption to be made. One of the purposes of the trial is to see if her case is credible and proved.

(3)  Moreover, the medical evidence does not go so far as to suggest that her memory is so affected that she would be unable to recall the details of how the accident occurred.  As I said above, she initially confirmed under cross-examination that she could remember the accident clearly.  Further, there is no evidence to suggest that her memory was already materially affected 4 months after the event when she went to the Site with the Labour Department inspector to re-create the accident scene

(4)  Finally, Madam Kwan’s case on how the accident occurred is a simple one.  It involved no complicated allegations. I do not think her low educational background and illiteracy should have any material impact on her ability to tell the court how the accident occurred.

47.  For the above reasons, I find Madam Kwan’s evidence under this issue unreliable and not credible, and I reject it.  I therefore find that she has failed to prove that the accident occurred in the manner as described by her.

48.  Although I do not think Mr Cheung’s evidence is relevant to my above finding, insofar as necessary, I would accept Mr Cheung’s evidence and prefer his evidence to Madam Kwan’s whenever there is a conflict between them.  I find Mr Cheung a credible witness.  He gave evidence in a straightforward manner, and was not in any way shaken under cross-examination.  Thus, I find also the following:

(1)  Mr Cheung had on previous occasions told Madam Kwan not to go down to the manholes to urinate, but Madam Kwan denied the same when she was so spoken to.

(2)  On the date of the accident, Madam Kwan was assigned to work with two colleagues in a group of three to carry out the work of applying sealants to the expansion joints. 

(3)  One traffic cone was put on top of the Plank and another two on its sides with reflective safety tapes wrapped around them and the nearby lamppost to prevent vehicular traffic at the area.

49.   On the other hand, notwithstanding my acceptance of Mr Cheung’s evidence, I am however not satisfied there is sufficient evidence before me to prove that Madam Kwan went down to the Manhole on that day to urinate before she suffered the accident as suggested by Maeda.

Issue 2(a): whether the accident was caused by the negligence or breach of duties of Ying Wah and Maeda

50.  Madam Kwan’s pleaded case on the particulars[1] of the negligence or breach of duties on the part of Ying Wah and Maeda are referable and based on the accident having occurred in the way as described by Madam Kwan. 

51.  Since Madam Kwan has failed to prove that the accident occurred in the way she describes it, she has also failed to show that the accident occurred by reason of the negligence or breach of duties on the part of Ying Wah and Maeda as pleaded.

52.  I also do no think this is a case where the doctrine of res ipsa loquitur (as pleaded by Madam Kwan) applies.  The mere fact that Madam Kwan was injured in the Manhole does not in my view necessarily mean that there were faults on the part of Ying Wah or Maeda.   

53.  In the premises, I hold that it has not been proved to my satisfaction that the accident was caused by the negligence or breach of statutory duties on the part of Ying Wah or Maeda.

If Madam Kwan had proved her case on how the accident occurred

54.  However, if I were wrong above, and that the accident did occur in the way as described by Madam Kwan, subject to the issue of contributory negligent, I would have held that it was caused by the negligence and breach of the occupiers’ and statutory duties on the part of Ying Wah and Maeda.   My reasons are as follows.

55.  I accept Mr Charles Wong’s submissions that, Ying Wah (as employer and as occupier of the Site) and Maeda (as occupier of the Site) were negligent in failing to take effective measures to prevent workers from falling into the Manhole, in particular, in failing to properly and securely cover the Manhole and to provide sufficient instructions, warnings and notices to the workers regarding the risk of filling into the manholes.

56.  Ying Wah and Maeda, in discharge of their duties, should have ensured that the Plank covering the Manhole was fixed, firmly secured or heavily weighted to prevent its easy removal by workers or others.  They should also ensure that sufficient warning was placed there to alert the workers of the opened Manhole underneath the Plank.  

57.  In my judgment, the morning briefing given by Mr Cheung that the workers should not go near the manholes on the Site, and the mere fact of placing the Plank to cover the Manhole, even with the cones and reflective tapes put on top of it (as suggested by Mr Cheung, whose evidence I accept) were insufficient in giving adequate warnings and safeguards to the workers to reasonably prevent them from falling into the Manhole.  In this respect, I accept the authorities relied on by Mr Wong in support of these submissions: Wong Chi Wing v Chun Wo Building Construction (unrep., HCPI 1476/2000, Seagrott J, 2 November 2001) at para 45;Rai Bina v Pacific Engineering Ltd (HCPI 338/2001, Deputy High Court Judge Day, 26 February 2003).

58.  Similarly, I would have also found that Ying Wah and Maeda were in breach of their statutory duties respectively under Regulation 38B(1A) and 38B(1) of the Construction Sites (Safety) Regulations[2], in causing the accident.  Both counsel for Ying Yah and Maeda have not sought to contend otherwise.  These regulations provide as follows:

“(1)  subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the site from falling from a height of 2 metres or more.

(1A)  Subject to paragraphs (2), (3) and (4), any contractor who ahs direct control over any construction work shall take adequate steps to prevent any person on any place where the construction work is being carried out from falling from a height of 2 metres or more.

(2)For the purposes of paragraphs 91) and (1A), ‘adequate steps’ shall include the provision, use and maintenance of one or more of the following:-

(c) covering for openings.

(4)Every…covering for an opening… provided for the purpose of paragraphs (1) and (1A) shall comply with the provision of the Third Schedule applicable to it”

The Third Schedule provides that every covering shall be so constructed as to prevent the fall of persons, materials and articles, and be clearly and boldly marked to show its purpose or to be securely fixed in position.

59.  I would have also found that Ying Wah and Maeda were in breach of Regulation 6(1) of the Occupational and Safety Health Regulations (Cap 509A) in causing the accident.  Under this regulation, they were under a responsibility to ensure that a platform, pit or opening located within a workplace, which could be a danger to the safety of persons, is securely fenced, to a height of 900mm. 

Issue 2(b): Is Madam Kwan contributorily negligent

60.  If Madam Kwan had proven liability, I would have however also held that she was 30% contributorily negligent in causing the accident.  This is so because it is her own evidence that she saw the metal cover of a manhole lying near to the Plank.  Coupled with her acceptance that she knew there were manholes situated around the Site, she should have realised the possibility and the risk that the Plank was used to cover a manhole, and therefore she should been careful in removing the Plank and looked underneath to see if there was a manhole.  If she had done that, the accident could have been avoided.

Issue 2(c): The contribution as between Ying Wah and Maeda

61.  If Madam Kwan had proven liability, I would have further held that the liability should be split between Ying Wah and Maeda in 75/25 proportions.  The following are my reasons.

62.  Although Maeda had also provided a foreman on the Site to overlook the entire project, Ying Wah as the employer of Madam Kwan had a direct duty to ensure that proper and reasonable safety measures had been put in place to prevent the accident from happening.  It was also the person who had caused (through the CCTV works subcontractor) the Manhole cover to be removed and to be temporarily covered and the inadequately marked and secured Plank.

63.  Further, as a matter of contractual responsibility as between Ying Wah and Maeda, the subcontract between them provided that Ying Wah shall comply, and cause its employees to ensure that the subcontract works to comply, with all respects of the laws, statutes ordinances and regulations.  It also provided that Ying Wah shall comply with the relevant statutory regulations and to provide all necessary personal protective equipment for all its own workers.

64.  In the case of Go Yu Liong v Bonntile Industries (HK) Ltd v China State Construction Engineering Corporation (unrep., HCPI 144/1997, 21 July 2000), a painter employed by the subcontractor fell from a height of 15 feet.  Seagrott J found that the fall was attributable to the failure to provide scaffolding.  Seagrott  J also found that it was an implied term of the subcontract that, as between the subcontractor and the main contractor, the responsibility for providing scaffolding was that of the main contractor.  He therefore apportioned liability between them as two-thirds to the main contractor and one-third to the subcontractor.

65.  In my view, in light of the fact that Ying Wah as the employer and under the subcontract had a direct duty to provide all proper and reasonable safety measures to Madam Kwan on the Site, including the provision of a safely secured and properly signed cover to the Manhole, and/or a properly installed fence around the uncovered Manhole, I would apportion liability between Ying Wah and Maeda as 75% and 25%.

Issue 4: quantum

66.  If liability were proved by Madam Kwan, my ruling on the quantum of damages would have been as follows.

Madam Kwan’s injuries and the medical reports

67.  Madam Kwan was 42 at the time of the accident.

68.  As a result of the accident, Madam Kwan was taken to PMH’s A&E Department.  She was found to have a 2 cm laceration over her left forearm, some minor abrasions over her right elbow and right knee.  There was also pain over her lower sternum and mid-lumbar spine.  X-ray revealed a fracture sternum.  She was treated conservatively and discharged from the hospital with 2 weeks’ sick leave.

69.  Thereafter, and until 2^nd December 2006, Madam Kwan had gone to the A&E Department of Tuen Mun Hospital (“TMH”) a number of times for consultations on her complaints of persistent pain over the chest and back.  She had also gradually started to complain about headache, dizziness and vertigo.  On each occasion she was treated and discharged.

70.  She was given follow-ups at the Tin Shui Wai General Out Patient Clinic, from where she was referred for physiotherapy, occupational therapy, and to the Department of Orthopaedic & Traumatology of TMH.

71.  In May 2005, when Madam Kwan was seen by the orthopaedic surgeon at THM’s O & T Department, it was noticed for the first time she had also suffered from fractured T12.  By August 2005, the surgeon was of the opinion that the T12 fracture had healed and her orthopaedic condition had stabilised and become static.

72.  Madam Kwan received a total of 8 sessions of physiotherapy between February and April 2005, and 12 sessions of occupational therapy between May and September 2005.    Her occupational therapist was of the view that Madam Kwan’s physical conditions were fair, and that her functional work performance limitation was due principally to her complaint of dizziness and her high blood pressure.

73.  Given her complaint of psychiatric symptoms such as low mood and insomnia, she was referred to and first seen by the psychiatrists at the Castle Peak Hospital on 17 October 2005.  Madam Kwan was diagnosed to have post-concussion syndrome (“PCS”) with symptoms of headache, dizziness, blurred vision, decreased memory and depressed mood.  It was reported that her mood improved after treatment, and by the time she was last seen in September 2006, her mood was described as euthymic (i.e., mentally peaceful and tranquil) with no suicidality or agressivity.   The treating medical officer was of the view that the prognosis of Madam Kwan’s condition was good, and that there was no evidence that her mental problems had any major lasting effect on her daily functioning or work capacity.

74.  She was similarly diagnosed to be suffering from Post Traumatic syndrome by the Department of Neurosurgery of TMH.

75.  In the joint neurological report by Drs Y L Yu and Kan Yiu Ting, both concluded that Madam Kwan suffered from PCS which included headache, dizziness, fatigue, irritability, difficulties in concentration, impaired memory, insomnia and reduced tolerance to stress or emotional excitement which included feelings of depression and anxiety.

76.  In the joint psychiatric report by Dr Lo Chun Wau and Dr K Singer, both were of the view that Madam Kwan suffered from PCS but of a mild degree.  They found that Madam Kwan had normal cognitive functions and that she was independent in all activities of daily living, and able to cope with most household chores.  Both experts also agreed that, from the psychiatric point of view, Madam Kwan could perform manual labour including construction site work but should avoid heights.  

77.  However:

(1)  Dr Singer opined that her condition was permanent and would continue indefinitely.

(2)  Dr Lo’s view was that her condition should wholly resolve after a further of 2 years of treatment. 

78.  Madam Kwan was seen by the joint orthopaedic experts Drs Au Ka Kau and Arthur Chiang on 15 May 2007.  In their joint report and supplemental report, both surgeons agreed that the fractured sternum and T12 were caused by the accident, and that Madam Kwan’s back was still significantly painful.  Both were of the view that she could not return to work as a construction site worker.

79.  However:

(1)  Dr Chiang was of the opinion that she had exaggerated her symptoms in relation to her lower limbs.  He was of the view that Madam Kwan should have no problem to perform daily activities and moderate manual activities but with a decreased endurance for heavy manual work.  He was of the opinion that Madam Kwan could work as a cleaner or domestic helper.

(2)  Dr Au was of the view that Madam Kwan was only fit for jobs with lighter duties such as those of a cashier and car park attendant.

General damages

PSLA

80.  Madam Kwan claims HK$500,000 under this head.

81.  However, in light of the above medical evidence, in particular the above common views on her conditions (both orthopaedic and psychiatric) by the various experts, I am of the view that her injuries and conditions do not fall into the lower end of the serious injury category defined in the Lee Tim Lam case, as suggested by Mr Charles Wong. 

82.  She has never been hospitalised for reasons of her conditions, and she could carry out most of her daily activities.  Her PCS psychiatric conditions are considered to be mild.  As such her conditions are similar and closer to that suffered by the plaintiff in Lai Kam Wah [2003] HKLRD Yrbk, para 418 (HCPI 1131/2002, 28 November 2003, whereSakhrani J awarded the sum of HK$350,000 for PSLA), but are of a milder and lesser degree compared with the plaintiffs in the authorities[3] cited by Mr Charles Wong.

83.  In my judgment, an appropriate award under this head should be HK$350,000. 

Pre-trial loss of earning/MPF

84.  It is common ground that she was given sick leave for 24 months after the accident until 29 November 2006. 

85.  However, she continued to rest herself until August 2007. Since then, she had worked as a casual odd job worker.  Her average pre-trial monthly salary is said to be no more than HK$3,3000.

86.  Madam Kwan says her pre-trial monthly income was HK$10,473, and thus claims pre-trial loss of earnings and MPF in the total sum of HK453,570.07 as follows:

(4)  Sick leave from 30 November 2004 until 31 July 2007: HK$10,473 x 32 months = HK$335,136.

(5)  Loss of earning from 1 August 2007 until notional date of judgment of 15 October 2008: (HK$10,473-HK$3,300) x 13.5 months = HK$96,835.50.

(6)  Loss of pre-trial MPF:      HK$21,598.57.

87.  However, Maeda says:

(1)  Although her last earning salary for the month of November 2004 was HK$10,473, Madam Kwan’s salary record shows that Madam Kwan’s pre-accident average monthly salary in the 6 months period immediately before the accident was only HK$8,862.  This should be adopted for the purpose of assessing the pre-trial loss of earnings.

(2)  As confirmed by the medical opinions, she should be able to take up full time job doing moderate manual work such as a cleaner or cashier upon the expiry of the sick leave.  The average wages for cleaners should be in the region of HK$5,000 per month[4].

88.  Ying Wah adopts Maeda’s above submissions[5]. 

89.  I accept Ms Lau’s submissions.  Madam Kwan’s pre-accident monthly salary should be calculated based on the average of her income obtained in the previous 6 months as shown in the earning record provided by her.  Moreover, given that all the experts were of the view that she could at least return to moderate manual labour work such as a cleaner, I also accept that, for the present purpose, she should be notionally taken to have returned to such a work after the expiry of the sick leave.

90.  In the premises, taking 1 December 2008 as the notional date of judgment, her pre-trial loss of earning and MPF should be HK$320,644.80 which is calculated as follows:

(1)  Pre-trial notional earnings with MPF: HK$8,862 x 48 months x 1.05 = 446,644.80.

Less

(2)  Notional earnings and MPF as a cleaner at the rate of HK$5,000 per month from 1 December 2006 to 1 December 2008: HK$5,000 x 24 x 1.05 = 126,000.00

91.  I therefore award HK$320,644.80 as Madam Kwan’s pre-trial loss of earnings and MPF.

Post-trial loss of earnings and MPF

92.  Madam Kwan seeks a multiplier of 8 under this head. 

93.  Given my ruling under the head of pre-trial loss of earnings, the future loss of earnings and MPF should thus be:  (HK$8,862 - HK$5,000) x 1.05 x 12 x 8 = HK$389,289.60.

Loss of earning capacity

94.  Madam Kwan claims HK$200,000 under this head.

95.  Given the medical evidence set out above, I am satisfied that Madam Kwan would be less competitive in the job market by reason of his conditions.   Having taken into the relative mild degree of her conditions, I would make an award of HK$100,000 under this head.

Special damages

96.  Madam Kwan claims special damages in the total sum of HK$40,700 as follows:

(1)  HK$20,200 for medical expenses already incurred.

(2)  HK$20,500 for future medical expenses to be incurred for psychiatric treatments.

97.  Ying Wah and Maeda have not made any submissions to dispute these damages.

98.  I also find them to have been proved and reasonable.   I therefore would allow them in full.

Total damages

99.  Thus, taking into account of the 30% contributory negligence of Madam Kwan, and the ECC payment of HK$300,272, the total quantum I would have awarded to her had I found liability established would be:  (HK$320,644.80 + HK$389,289.60 + HK$100,000 + HK$40,700) x 0.7 – HK$300,272 = HK$295,172.08.

IV. Conclusion

100.  For the above reasons, I am not satisfied that Madam Kwan has proved liability against Ying Wah and Maeda.  I therefore dismiss her claim. 

101.  I further make an order nisi that costs of the action be to Ying Wah and Maeda to be taxed if not agreed.  Unless any of the parties applies to vary it in writing, the nisi order shall become absolute 14 days from today.

102.  Finally, I thank counsel for their assistance in this matter.

[1]  At paragraphs 6, 7, 8 and 9 of the Amended Statement of Claim.

[2]  They have been previously convicted for breach these regulations in October 2005 at the Eastern Magistracy.

[3]  They are:  Yu Heung Yuk v Ho Man [1999] HKLD I16 (HCPI 57/1998, 12 August 1999, Deputy Judge Longley) where HK$440,000 was awarded under PSLA; Tsoi Kwong Ming v Green Valley Langfield Ltd [1999] HKLD J13 (HCPI 407/1997, 30 September 1999, Deputy Judge Woolley) where HK$560,000 was awarded under PSLA; and Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture (unrep., HCPI 1241/1999, 26 October 2001, Master de Souza) where HK$450,000 was awarded under PSLA.

[4]  This is not challenged by Madam Kwan.

[5]  Although Ying Wah initially adopted in its answers to the Revised Statement of Damages and closing submissions its calculation of the pre-trial loss based on the pre-accident earning of Madam Kwan being at HK$10,473, after hearing Maeda’s submissions, Mr Lam for Ying Wah sought to adopt Maeda’s position on the pre-accident monthly earning as well.  Mr Charles Wong for Madam Kwan opposed to Ying Wah’s said effective admission  on Madam Kwan’s pre-accident monthly earning.  However, given that it is open to Maeda to run this argument, and that Maeda and Ying Wah are sued jointly and severally, I do not see any real prejudice to be caused to Madam Kwan to allow Ying Wah to withdraw from its admission and adopt Maeda’s submission as well.  Thus, insofar as necessary, I would grant leave to Ying Wah to withdraw this admission.