CHENG WAH MING v. TAI SHING ENGINEERING CO. LTD. and CHINA LIGHT & POWER CO. LTD. (Third Party)

1994, No. PI 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL NJURY

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JUDGMENT

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1. The Plaintiff brings this claim against the Defendant for damages as a result of an accident which occurred on 29th October 1991 when the Plaintiff, as the employee of the Defendant, was breaking up the road surface just at the kerb of Tokwawan Road with a pneumatic drill when his drill came into contact with a 11 Kv live electric cable which was buried about 150 mm underneath the road surface. That resulted in an explosion and in the words of the Plaintiff 'fire shot out' from the hole which he was drilling, burning him and throwing him onto the ground resulting in personal injuries sustained by the Plaintiff.

2. Originally the Defendant had joined China Light & Power Co. Ltd. ("CLP") as a Third Party in these proceedings. However at the start of the trial the third party proceedings was stayed by a Consent Order as a result of agreement having been reached between the Defendant and the Third Party. The action therefore proceeded only as between Plaintiff and Defendant.

The Plaintiff's case on liability

3. There is no dispute that the Plaintiff had at all material times been employed by the Defendant as a pneumatic drill operator. Neither is the occurrence of the accident in issue. It is common grounds that the Defendant was engaged by The Hong Kong and China Gas Company Ltd. ("the Gas Company") to install underground gas pipes across Tokwawan Road near the junction of Tokwawan Road, San Shan Road and San Ma Tau Street ("the job") and it was in the process of excavation works in respect of the job that the Plaintiff met with this accident.

4. As a result of this accident, the Defendant was summoned by the Labour Department for an offence under Regulation 47 of the Construction Site (Safety ) Regulations Cap. 59 that being the responsible contractor of the site it did fail to take such measures as could have prevented the workman there and then from being endangered by the cable. The Defendant pleaded guilty to that summons and was convicted on its own plea.

5. The Plaintiff puts his claim against the Defendant on the following footing:

(a) that the Defendant was in breach of its common law duty of care towards the Plaintiff;

(b) that the Defendant in breach of his duty as an employer to provide a safe place and safe system of work for the Plaintiff;

(c) as the occupier of the site where the job was carried out, the Defendant was in breach of his duty to take care under the Occupier's Liability Ordinance; and

(d) the Defendant was also in breach of statutory duty under the Construction Sites (Safety) Regulations Cap.59.

6. The Plaintiff further alleges that by reason of the conviction of the Defendant, the onus is on the Defendant to disprove negligence.

The Plaintiff's Evidence on liability

7. The Plaintiff gave evidence to the effect that he had worked for the Defendant for some 2 years before the accident as a pneumatic drill operator and he worked with a partner called Chan Hung Chor. He and his partner had been working at this site for about 10 days prior to the accident. Their work was to excavate across Tokwawan Road for the purpose of laying an underground gas pipe across the road. They had to excavate lane by lane so that traffic was not disrupted.

8. On the day of the accident, the 2nd and 3rd lanes of the east-bound carriageway of the road had already been excavated to a depth of about 1.6 metres and had been covered with thick metal sheets on the road surface so that traffic can pass over the metal sheets. The inner lane however was closed to traffic and they had just started excavating work on the inner lane. The area to be excavated was marked out by the site foreman and he, the Plaintiff, was using a pneumatic drill near to the kerb to break up the tarmac surface of the road. His drill had dug into about 150mm of the road surface when suddenly there was an explosion and fire rushed up from the hole burning him on his face and arm and causing him to fall onto the ground.

9. The Plaintiff also gave evidence that before any excavation work was done at the site, the Defendant had caused trial holes to be dug at various places to ensure that there were no obstructions along the route planned for the underground cable to be laid. According to the Plaintiff, 5 trial holes were dug by personnel from the gas company. None of the trial holes were dug by the Plaintiff or his partner. Only one such trial hole was dug in the middle of Tokwawan Road. The trial holes were 1.5 metres by 1.5 metres.

10. The Plaintiff also gave evidence that no device were used by the Defendant to locate the presence or the depth of underground cables nor any other action taken by the Defendant for that purpose and that he was not warned by the site foreman or anyone from the Defendant of the presence of underground cable in the area. Neither was he shown any plans by the Defendant. However, when he was excavating the 3rd and also the 2nd lane of Tokwawan Road, on one side of the excavated trench was exposed a concrete duct and because certain parts of that duct was broken, people from the Defendant including the site foreman could see that the concrete duct contained live electric cables. Since that duct was on the side of the trench about 600mm deep, it would not obstruct the laying of the gas pipe by them.

The Defence

11. The Defendant, on the other hand, raises the defence of inevitable and unforeseeable accident saying at the same time that the plea of guilty to the summons was a commercial decision intended for the purpose of saving legal costs and not an admission of negligence.

12. Linked to the defence of inevitable accident the Defendant further contends that while a conviction may shift the burden to the Defendant in respect of breach of duty, in so far as causation is concerned the burden still rests with the Plaintiff to satisfy the court that the injuries to the Plaintiff was as a result of the Defendant's breach of duty. Put another way, the Defendant says that even if all reasonable care had been taken by the Defendant, it still would not have prevented the accident from happening. This because no amount of human ingenuity could reasonably have foreseen that a live electric cable would be only 150 mm beneath the road surface.

The Defendant's Evidence on liability

13. The Defendant called a total of four witnesses in respect of liability. The general manager of the Defendant, Titney Leung Tit Bong, gave evidence that the Defendant was contracted by the Gas Company to undertake the job for laying of gas pipes across Tokwawan Road and the gas pipe to extend all the way to the jetty at Ma Tau Kok South Gas Works. For the job, the Defendant was provided with sketch plans by the Gas Company which showed the rough locations of underground cables belonging to CLP which were at or near to the site of the excavations. What the sketch plans do not show is the depth of those cables underground. Each of these plans are stamped with 3 chops put there by CLP which contain the following words:-

"Transmission cables and equipment are present"

and also

"Locations of cables are approximate and should not be scaled and assumed accurate. Extreme care must be exercised when working in close proximity to our equipment. Please contact our District Manager Tel. No. 363 4238 Kowloon South"

and also

"All locations, measurements, dimensions and distances are for China Light and Power Company Limited's internal use only. They should not be assumed to be scaled and accurate and China Light and Power Company Limited accepts no responsibility in the event of any inaccuracy"

14. Mr. Leung also gave evidence that as a general practice trial holes would be dug to ascertain the depth of cables which are not known as well as to ascertain their exact location, but that in 1991, the Defendant company did not have any cable detector and his understanding of cable detectors is that it can only detect the rough locations of underground cables but not their depth. The only way to ascertain the depth of underground cables was by digging trial holes. The normal practice is that if they did not find any obstructions after two trial holes had been dug, then, according to Mr. Leung, it would be reasonable to expect that there would be no obstruction for the whole length between the two trial holes and it would be normal to excavate a trench between the two trial holes.

15. In the present case, Mr. Leung said three trial holes were made in San Ma Tau Street and one trial hole made right in the middle of Tokwawan Road. After the trial holes had been made and the trench had started on the 2nd and 3rd lane of Tokwawan Road, he had visited the site and had seen the concrete duct by the side of the trench. The concrete duct was about 3 feet deep and because part of it was broken, he could see that electric cables were contained in the duct.

16. The plans provided by the Gas Company had shown 3 underground electric cables running across Tokwawan Road and the Defendant had intended to lay the gas pipe parallel to the cables, just by its side.

17. Mr. Leung said that although the plans did not show the depth of the cables, the Defendant did not ask the Gas Company or CLP for assistance in the matter because it was the Defendant's experience in the past that even if they asked, they would not be given any reply.

18. In cross examination, Mr. Leung agreed that in 1991, the Defendant did not have a cable detector although he had heard of such a device since the eighties. He also added that it was only in 1997 that the Defendant had purchased a cable detector for about $50,000.00. However it is not reliable to pinpoint the exact location of a cable. After purchase of the cable detector they still rely on trial holes as being the reliable method to locate the exact position, particularly the depth of an underground cable.

19. As to why the Defendant pleaded guilty to the summons arising from this accident, he gave as explanation the fact that enquiries revealed that it would cost the Defendant a lot more money to engage lawyers to contest the summons in court than if the Defendant were to plead guilty and pay the fine. Therefore it was more a commercial decision to plead guilty than to hire lawyers to contest it. At the same time he also added that there was also "a little feeling that the company was negligent" so it was better to plead guilty. However, in re-examination he said what he meant was that since a workman was injured in the course of work, he felt sorry and the company should be responsible for his injury.

20. In cross examination he also agreed with counsel for the Plaintiff that the Defendant did not have an industrial safety officer in 1991 and still do not have one today. He also agreed that the Defendant did not provide any safety guidelines to pneumatic drill operators the reason for that, says Mr. Leung, is because all the workmen employed by the Defendant are experienced workers.

21. The foreman of the Defendant, Chan Chi Kau, also gave evidence. He was the foreman on site for the job which commenced on 20th September 1991 but he was not at the site for the first seven days when the site manager took over his duties for him. He confirmed the evidence of Mr. Leung about being provided with the sketch plans by the Gas Company for the job as well as not using cable detectors but relying on trial holes to ascertain the exact location and position of underground cables. He also confirmed the evidence of Mr. Leung that before work commenced three trial holes at San Ma Tau Street and one trial hole in the middle of Tokwawan Road had been dug.

22. On 29th October, excavation work had already been completed on the 2nd and 3rd lanes of the east-bound carriageway of Tokwawan Road and they had permission from the Highways Department to close off the inner lane on that carriageway to start the excavation on that lane. He had to leave for another site at 1.00 p.m. and he instructed the three workers there, including the Plaintiff, to start the breaking work before he left the site. He was not present when the accident occurred later in the day.

23. He gave evidence that in normal circumstances, no cable would be laid at a depth as shallow as 150mm below the surface of the road and he had never seen a cable laid in such a shallow level without any protective cover and embedded inside the concrete kerb of the road, therefore he considered the accident to be totally unforeseeable.

24. In the middle of his evidence it became clear that what he referred to as the trial hole made in the middle of Tokwawan Road was in fact the trench which had been excavated along the 2nd and 3rd lanes of the east-bound carriageway of Tokwawan Road. His explanation for saying this is that whatever was revealed from the trench so dug served the same purpose as a trial hole.

25. In this respect he was cross examined by counsel for the Plaintiff who confronted this witness with a Declaration made by him on 26th November 1991 (and not 1996 as appears in the translation thereof) to a Factories Inspector of the Labour Department after this accident. In that document when he was asked whether any trial holes had been dug on the eastbound traffic lane he had answered in the negative. His explanation for that answer was that at the time the declaration was made, the Inspector of the Labour Department was asking him whether any preparatory work was done before the trench was excavated and so he had concentrated on such preparatory work when answering that question.

26. Mr. Chan also gave evidence that in 1991 cable detectors were rather primitive device but that he had seen the people of CLP using such detectors. From what he saw he had the feeling that these detectors could only give a rough location of where a cable was underground. After the rough location of the cable was found with the detector, the CLP people would still have to dig a trial hole and by using pliers in the trial hole ascertain the exact location of such cable.

27. In the present case, Mr. Chan agreed that it was possible to dig trial holes on the pavement situated on that side of the eastbound carriageway of Tokwawan Road but this had not been done because the Defendant was simply following the normal practice which was to extend the trench from the one trial hole made in the middle of Tokwawan Road.

28. The next witness called by the Defendant was Ha Yau Yee, the site manager of the Defendant. He confirmed the evidence of the earlier witnesses called by the Defendant as to the commence of work for the job and the fact that the Defendant had been provided with the sketch plans by the Gas Company indicating the rough location of the underground cables.

29. He also confirmed the evidence given by Mr. Chan that for the first seven days from the commencement of works for the job, this witness took over the duties of Mr. Chan who was not at the site but when Mr. Chan returned to the site this witness left the site and he was not present when the accident happened on 29th October 1991.

30. He also gave evidence that since 1997, after the Defendant had acquired a cable detector, he had a chance of using it. He said that the cable detector could only give the rough location of an underground cable - within a 300mm difference.

31. In cross examination he said he had attended a seminar held by the Gas Company where it was indicated by the Gas Company that in future the Defendant would be required to use a cable detector. That was the reason why the Defendant purchased one last year. He accepted, however, that the cable detector could do what was required of it, namely to indicate the rough location of underground cables, both as to position and depth. However, trial holes had still to be used to ascertain the exact position of such cables. Mr. Ha did agree with counsel for the Plaintiff that a cable detector narrowed down the location of a cable to within 300mm of where the cable is actually located underground.

32. He further said in cross examination that trial holes were dug manually to see if any obstruction was in the way of the intended route of the excavation and when a trial hole is made, it is assumed that what is laid underground is laid in the normal position because before a trial hole is made, there is no way of telling what is below the ground. He disagreed with counsel that in 1991, the Defendant had ignored other methods apart from using trial holes for this purpose.

33. The last witness called by the Defendant on liability is Lai Ming Jun, a Work Control Engineer of CLP. He has been with CLP since 1967 rising to his present position from an apprentice electrical engineer. The effect of his evidence is that CLP has vast amount of cables of varying voltage all over Kowloon and the New Territories, most of which are underground. However CLP cannot guarantee that every cable will always be laid at its correct depth or remain at its original depth after it is laid as a result of interference by third parties excavations and it frequently happens that such cables are moved by third parties.

34. CLP also frequently receives requests from companies proposing to carry out excavation works regarding the whereabouts of CLP cables proximate to such planned excavation works. The party making such requests will have to provide CLP with a plan or map of the area of the proposed works and CLP will then mark the location of any cables proximate or near to such proposed works. The plans will then be returned to the requesting party. In fact this is a condition before the Highways Department will issue excavation permits to such a third party. These plans, marked by CLP to indicate the locations of their cables, are invariably chopped with warning notices (i.e. the words already set out above in quote in this judgement).

35. Moreover, according to Mr. Lai, even if the Defendant in this case had reverted to CLP to ask for the depth of the cables shown and marked by CLP on such plans, CLP would not have been able to comply with such requests for the reason that CLP could not have known the exact depth of all of its underground cables. CLP could do no more than provide the plans with its cables marked on them. It is not in a position to warn the public as about shallow cables or even provide information as to cable depth beyond what is on such plans.

36. Mr. Lai also gave evidence that neither could CLP accede to requests by third parties in such circumstances to de-energise CLP underground cables to facilitate excavations by such third parties since this would put additional burden on other circuits in the area and jeopardise the security of supply to CLP customers.

Conviction of the Defendant

37. The Defendant was convicted on his own plea of guilty of Regulation 47(1) of the Construction Sites (Safety) Regulations. That regulation reads:-

"(1) Where workmen employed at a construction site are liable to come into contact with any live electric cable or apparatus, the contractor responsible for the site shall, both before the commencement of the work at the site and during its progress, take such measures (whether by rendering the cable or apparatus electrically dead or otherwise) as will prevent them from being endangered by the cable or apparatus.

38. By reason of Section 62 (2) of the Evidence Ordinance, the Defendant shall be taken to have committed that offence unless the contrary is proved.

39. In the case of Stupple v Royal Insurance Co. [1971] 1 QB 50 Lord Denning MR sitting in the Court of Appeal held that where a conviction was proved, the Civil Evidence Act did not merely shift the evidential burden but it shifted the legal burden of proof to the defendant and it was for the defendant to disprove negligence. That case dealt with a conviction for careless driving.

40. Applying the principle laid down in Stupple's case, the Defendant in our present case is guilty, upon its own plea, of failing to take such measures as will prevent its workmen from being endangered by the cable. Prima facie, therefore, the Defendant is guilty of negligence and the burden is on the Defendant to disprove, on balance, that it was not negligent.

41. Having said that, I accept that it is always upon the Plaintiff to prove, conviction or no conviction, that the negligence (assuming it be proved) of the Defendant caused the injury and the resultant loss and damage to the Plaintiff.

Findings of Fact

42. It should be noted that from the photographs produced at the trial, the cable which the Plaintiff's drill came into contact with was not housed inside the concrete duct that was exposed when the trench was dug across the 2nd and 3rd lane of the eastbound carriageway of Tokwawan Road, but that it was one of three cables shown on the plans provided to the Defendant by the Gas Company. The damaged cable ran parallel to the concrete duct that was exposed inside another duct but which had been completely broken off leaving the cable totally unprotected at a distance of some 3 metres from the kerb where the accident occurred. Moreover from the sketch attached to the supplemental statement of Chan Chi Kau, the Defendant's site foreman, this unprotected cable took an upward direction turning to the right as it approached the kerb where the accident occurred thereby coming into line with where the proposed excavation in respect of the job was intended.

43. Much of the dispute of facts in this case has revolved around the use or the worth of a cable detector in detecting an underground cable in 1991. Obviously that would be a major factor to decide whether or not it would have been reasonable to expect the Defendant to have used such an instrument in 1991 and whether or not by using it this accident could have been prevented.

44. It is unfortunate that no experts in the use of a cable detector was called to give expert evidence in this respect. It would certainly have been of great assistance for the determination of this issue.

45. As it is I am left with the evidence of witnesses which, at best, would have been no better than hearsay evidence as to what a cable detector could or could not do in 1991. Bearing in mind that modern technological advancement is such that in the short space between 1991 and 1997, a cable detector could have changed so considerably that I feel unable to make any findings of what a cable detector could do in 1991 based on Chan Chi Kau's evidence of his personal knowledge of a cable detector in 1997.

46. Counsel for the Plaintiff has suggested that I do not accept the evidence of the Defendant's witness in relation to cable detectors in 1991. On the other hand he seeks to rely on one statement in the report of the Factory Inspector that the Defendant had failed to use a cable detector in this case. I am afraid that one sentence alone is not good enough for me to come to the finding that a cable detector, if used by the Defendant in 1991, would have ascertained the position and depth of the cable and could thereby have prevented this accident to the Plaintiff.

Liability

47. Even granted that the Defendant could not be faulted for not using a cable detector and also could not be faulted for not contacting CLP or seeking its assistance to determine the depth of the cable other than what is shown in the Plans provided them by the Gas Company, the question that must be asked in this case is whether the Defendant has done all that is reasonable in the circumstances.

48. In this respect, I note firstly that the plans are stated not to give an accurate position of the cables. Secondly it is quite apparent from the plans that the cables abruptly ended at the pavement on the side of the eastbound carriageway of Tokwawan Road with no indication whether it turned right or left or go straight on. Thirdly the plan does not indicate the depth of the cables.

49. Moreover I note that the Defendant was well aware that the minimum depth of cables when underneath the pavement was less (by about half) than those underneath a road. With this knowledge, it is already surprising that no trial holes were dug at the pavement on the side of the eastbound carriageway.

50. However, when the Defendant came to know through its site foreman that the concrete duct, exposed at the side of the trench dug on the 2nd and the 3rd lane of the eastbound carriageway, was broken in various places, the Defendant ought to have been put on notice that there was every possibility that the underground cable closer to the kerb of the eastbound carriageway may be unprotected as was the case. Yet no action was taken by the Defendant to cater to this possibility. Action that could have been taken included the digging of a trial hole, even at that stage, on the pavement of the eastbound carriageway where the route of the intended excavation was intended; or else the excavation in respect of the inner lane could have commenced from that side of the inner lane nearer to the 2nd lane excavating towards the pavement and kerb rather than to have stated the excavation of the inner lane from where the kerb was.

51. The advantage of digging in from the outer part of the inner lane towards the kerb would be so that the path of the exposed cable duct could be observed as the excavation moved towards the pavement. Had this been done, it would have been clear to all that the path of the cables, as it neared the kerb took a turn towards the right as well as rising sharply upwards as they neared the kerb as well as the fact that these cables were no longer protected by the concrete duct some 1.5 metres from the kerb. If this had been done this accident to the Plaintiff could have been avoided.

52. In all the circumstances of this case, it was not reasonable for the Defendant to assume, as they did, that because the concrete duct exposed on the 2nd and 3rd lanes were at the proper depth, that it must continue to be so all the way to the pavement. If that was a reasonable assumption to make, it would defeat the purpose of trial holes which is to make sure cables, inter alia, are in their proper depth and location and thus would not pose a danger or hazard to unsuspecting workers such as the Plaintiff.

53. For the above reason, I have come to the conclusion that the Defendant were negligent and in breach of their duty to the Plaintiff. Put another way, the Defendant have failed to disprove negligence on balance. Further, for the same reasons given and in particular my finding that had the Defendant taken those precautions, the accident to the Plaintiff could have been avoided, I also reach the conclusion that in so far as causation is concerned, the Plaintiff have satisfied me on balance that his injuries and resultant loss and damage was caused by the negligence of the Defendant.

Contributory Negligence

54. Contributory negligence, though pleaded in the Defence, has not been pursued in argument, and quite rightly so, by counsel for the Defendant. In all the circumstances of this case, I cannot see how the Plaintiff could have been guilty of contributory negligence even if it had been argued. Accordingly I find that there was no contributory negligence on the part of the Plaintiff.

Quantum

55. I come now to deal with the question of quantum. As there is a disputed issue between the medical experts called by both sides relating not to the Plaintiff's burn injuries but rather to his resultant visual disability, I shall start by dealing with the Plaintiff's injuries and treatment.

Injuries and treatment

56. After the accident, the Plaintiff was admitted to the Queen Elizabeth Hospital. The medical report of Dr. Ada Wong shows that the Plaintiff suffered first degree burns mainly on the face and left arm, less than 10% of total body area. He was given regular dressing and responded well to conservative treatment. When followed up on 14th November 1991, the Plaintiff complained of poor vision of the left eye and was referred to ophthalmologist.

57. The Plaintiff was seen at the Argyle Street Ophthalmic Centre on 9th December 1991 and complained of blurring of the left eye. At that time his visual acuity was found to be 6/36 in the right eye and 2/60 in the left. Examination revealed grossly constricted visual field affecting both eyes. Otherwise the eyes were normal. Dr. Yu from the Ophthalmic Centre came to the conclusion that his visual disability was due to concussional brain injury. His corrected visual acuity as tested on 10th October 1992 was found to be 6/12 in the right eye and 6/24 in the left. His visual field was constricted to about 15-20 degrees in the right eye and to 5 degree in the left. His visual acuity together with the constricted visual field was assessed as 78% ophthalmic disability in the right eye and 97% in the left.

58. Dr. Chow Pak Chin, an ophthalmologist was called on behalf of the Plaintiff. He had examined the Plaintiff on 30th May 1995 and also on 20th March 1998. After the first examination he came to the conclusion that the Plaintiff was suffering 78% ophthalmic disability in each eye but despite that he was of the view that the Plaintiff should be able to perform his pre-accident job as a pneumatic drill operator. After the second examination he concluded that the eye injury of the Plaintiff had remained stable since the last visit and was of the view that the Plaintiff was still suffering a 78% ophthalmic disability in each of his eyes.

59. The Defendant called 2 medical experts also. Dr. Paul Cheung, also an ophthalmologist after examining the Plaintiff on 5th August 1993 was steadfastly of the view that the Plaintiff was malingering. He based this conclusion on firstly, the fact that when he tested the visual acuity of the Plaintiff's eyes at different distances different results emerged. This led Dr. Cheung to conclude that the Plaintiff was not performing the tests honestly. Secondly, Dr. Cheung was of the view that the only possible causes of the Plaintiff's visual fields constriction are bilateral occipital lobe infarction and functional non-organic visual loss. But since there is no disease affecting the eye or the visual pathway, Dr. Cheung concluded that the visual loss is due to malingering or hysteria. Thirdly, Dr. Cheung gave evidence that he had deliberately placed objects in his consultation room to obstruct the Plaintiff's path but had observed the Plaintiff to have no difficulty avoiding these objects when coming into his consultation room and walking a distance of 3 meters up to the chair. This, said Dr. Cheung, further showed the Plaintiff to be malingering.

60. Dr. Gordon Chau, another ophthalmologist, gave his opinion after examining the Plaintiff that the most likely cause for the Plaintiff's visual field loss is a functional non-organic one. He also opined that there is no evidence to support the claim that the blast accident has produced any physical damage in the Plaintiff's visual system to account for his sub-normal visual acuity which he found to be 70% of normal in each eye. This was based largely on the fact that there was no apparent head injury or obvious ocular injury to the Plaintiff from the blast accident, and no organic cause can be identified to account for the Plaintiff's symptoms. In the witness box Dr. Chau said that he suspected malingering because he encountered inconsistencies which should not be there. This conclusion of his was formed when he heard the evidence given by other doctors and by looking at the reports of other doctors.

61. After hearing the evidence given by all the medical experts, I preferred the evidence of Dr. Yu and Dr. Chow Pak Chin that the Plaintiff was not malingering but was in fact suffering from the symptoms complained of. I came to this view for two reasons.

62. Firstly, I accept the evidence of Dr. Chow Pak Chin that from his examinations of the Plaintiff, he found no indication that the Plaintiff was either exaggerating or malingering. Furthermore, the results of his examinations of the Plaintiff, although 3 years apart, produced the same results such that if the Plaintiff was malingering, the Plaintiff had to produce the same malingering on both occasions when he was examined which is quite difficult for a layman to achieve.

63. Secondly, I note from the sick leave certificate (contained in the Agreed Bundle of Documents) that the Plaintiff was given sick leave after the accident for a continuous period of up to 12th November 1991. Despite this, it is common ground that the Plaintiff returned to work at the Defendant on 5th November 1991. This, in my view, shows the kind of man the Plaintiff is - certainly not a malingerer.

Pain, Suffering and Loss of Amenities

64. Insofar as this head of damage is concerned, I accept the evidence of Dr. Chow Pak Chin that the Plaintiff's ophthalmic disability would take about half a year to stabilise, and then it would be permanent for the rest of his life. He now suffers a visual disability of 78% in each eye. I also accept the Plaintiff's evidence that there was nothing wrong with his vision before the accident.

65. In the case of Chan Kwok Ping v. Hop Yick Engineering Co. PI No. 1230 of 1995 where whitewash was sprayed into the plaintiff's right eye from a spray gun resulting in a large corneal ulcer which subsequently formed a vascularised corneal scar and the plaintiff's visual disability was assessed at 90% and was found to be suffering from recurrent cornea epithelial erosion, Cheung J. awarded $420,000.00 for pain, suffering and loss of amenities in January 1997.

66. In Ho Yam Pan v. Tse Tak Ming PI No. 91 of 1996 where the plaintiff, a construction worker, sustained serious injuries to his right eye when the cutting blades of a machine he was using broke into pieces and struck his eye, permanent disability in the right eye was assessed at 100%, and the plaintiff's eyeball had to be removed by operation, Master Chung placed the plaintiff's injuries within the lower end of the 'serious injuries' category and awarded $450,000.00 for pain, suffering and loss of amenities in April 1997.

67. While the injury to the Plaintiff in our present case may not be as serious as those in the two cases cited above, I take into consideration that the Plaintiff suffers from visual disability in both his eyes which no doubt will result in long term discomfort and inconvenience to him although it may not be so serious as to mar his general activities and enjoyment of life. In this respect I am of the view that the injuries suffered by the Plaintiff falls outside the 'serious injuries' category and an award of $350,000.00 would be sufficient compensation to the Plaintiff in respect of pain, suffering and loss of amenities.

Pre-trial Loss of Earnings

68. The documentay evidence shows that the Plaintiff returned to work with the Defendant on 5th November 1991 ( not 14th November as the Plaintiff himself thought) being paid at the same rate (i.e. $400 per day) as before the accident. He continued working for the Defendant until the end of June 1992 when he said he could not continue in his work because of the discomfort from his eyes especially during hot weather, and when he was working in the open underneath the sun which causes his eyes to water. I accept his evidence and I find that the Plaintiff is no malingerer, not only for the reason already given above (i.e. that the Plaintiff chose to resume working with the Defendant on 5th November when he was given sick leave up to 12th November), but also because the Plaintiff was the sole breadwinner of his family where he had one wife and four children to feed. Another piece of evidence which led me to this conclusion is the evidence from the Plaintiff that during the period from July 1992 to October 1994, staff of the Social Welfare Department had visited him but he refused assistance from them.

69. After he left the Defendant, from July 1992 until October 1994, the Plaintiff only worked occasionally and on a casual basis. For this period of 27 months he earned a total of $22,050.00.

70. From 2nd October 1994 onwards, he was able to work on a more permanent basis and from that date until the end of January 1998, the Plaintiff was able to earn $544,637.00. He was doing work in construction sites, but not as a pneumatic drill operator. By January 1998 he was earning at the rate of $800 a day which is about $34 less per day what a pneumatic drill operator would be earning according to the wage statistics provided by the Government. The reason given by the Plaintiff as to why he was working but not as a pneumatic drill operator was because he 'suffered mental agony'. Although he could work, he was scared that because of his blurred vision he might fail to see a cable and drill into it again.

71. In this respect I note that Dr. Chow Pak Chin, after his first examination of the Plaintiff in May 1995 was of the opinion that the Plaintiff could return to his pre-accident work as a pneumatic drill operator. In giving this opinion, Dr. Chow undoubtedly based it on the ophthalmic condition of the Plaintiff and he is quite right when only that context is looked at because even the Plaintiff agrees that physically speaking he could go back to work. However, what Dr. Chow did not take into consideration when giving that opinion of his was that the Plaintiff, after experiencing the explosion from this accident had a fear of using a pneumatic drill in case he should drill into another cable. The fact that his eyesight became blurred after the accident may have contributed to his fear of coming into contact with another cable.

72. When all the circumstances of the case are considered, that the explosion happened right under his feet, he has a wife and four children at home all dependant on him, and that his blurred vision does not allow him to see as clearly as before, it is not unreasonable of the Plaintiff to fear that a similar accident might happen to him if he returned to his pre-accident work. On the other hand, fear is something which can be overcome in time and it would not be reasonable for the Plaintiff, after a reasonable time has been given him to adapt and to overcome his fear of using a pneumatic drill, not to return to his pre-accident work but continue in other less paying work and claim for loss of earnings.

73. The Plaintiff resumed regular work (albeit not as a pneumatic drill operator) in October 1994. By January 1998, after some 3 years and 4 months of resuming work, that should have been a sufficiently reasonable period of time for the Plaintiff to shed off the terrible memories of his frightening experience of the accident.

74. Accordingly I calculate the Plaintiff's pre-trial loss of earnings as follows :-

(a) For the 7 days immediately following the accident when he was off work, there would be a loss of $2,800.00;

(b) For the period 5th November 1991 to end of June 1992 when he returned to work for the Defendant, being paid the same daily rate, there is no loss of earnings.

(c) From July 1992 to October 1994, the average earnings of a pneumatic drill operator is about $530 per day (as per Government statistics for wages), which gives $13,780.00 per month (assuming a 26 working day month). His loss of earnings would come to $13,780.00 x 27 months - $22,050.00. This gives a loss of $350,010.00.

(d) From October 1994 to January 1998 (40 months), the average earnings of a pneumatic drill operator is about $707.00 per day (as per Government statistics for wages), which gives $18,382.00 per month (26 working day month). His loss of earnings would be $18,382.00 x 40 months - $544,637.00. This gives a loss of $190,643.00.

For the reasons given above, there should be no further loss of earnings after January 1998.

Total pre-trial loss of earnings therefore comes to $2,800.00 + $350,010.00 + $190,643.00 giving the sum of $543,453.00.

Other Special Damages

75. This has been agreed between the parties at $3,000.00, and it shall be awarded accordingly.

Loss of Future Earnings

76. It follows from what I have found above that there will be no award for loss of future earnings.

Interests

77. Interests will be awarded at 2% p.a. for general damages from the date of Writ (18th October 1994) to date of judgment and at 6.03 % p.a. for all special damages from date of accident to date of judgment. The interests for general damages comes to $28,000.00 and the interests on special damages comes to $227,912.00

Conclusion

78. The total amount for all the damages and interests comes to $1,152,365.00. From this sum will have to be deducted the amount of $150,000.00 paid to the Plaintiff in respect of employee's compensation. This gives a final figure of $1,002,365.00. Accordingly there will be judgment for the Plaintiff in the sum of $1,002,365.00.

79. I shall make the usual costs order nisi that costs of this action be to the Plaintiff and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.