CHAN TUNG v. LIU WAI SHAN

HCPI 524/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 524 OF 2007

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J U D G M E N T

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The claim:

1.  Mr Chan’s employer, Mr Liu, was a subcontractor of Hop Shing Tong Kee Construction Co Ltd which was in turn a sub contractor of Penta-Ocean Construction Co Ltd, (Penta-Ocean), on a construction site at Pak Shek Kok, Tai Po, New Territories.  Mr Liu’s particular subcontract involved the erection of a metal mesh chain-link fence on the boundary of the construction site.  He and Mr Chan were engaged in the erection of the fence.  In the course of the work Mr Chan suffered an accident, and he now seeks personal injury damages.

2.  There was no dispute that Mr Liu owed the usual duty of care and statutory duties to Mr Chan.  The real issue before the court was whether the accident took place as described by Mr Chan.

The work being done:

3.  The fence comprised metal posts placed approximately 1.825 m apart, vertical to 1.8 m, then with an angled top section upon which were to be fixed three parallel strands of barbed wire.  The metal mesh, chain-link fencing was attached to the posts by a 25 mm metal strip, bolted on to the steel post, with the mesh chain-link fixed between the metal strip and the post.  Once the steel mesh was fixed to the posts, three steel wires were threaded, parallel to the ground, through the mesh chain-link, to give further support to the fence.  One wire was at the top of the chain-link fence, and one at the bottom, and an intermediate wire in the middle, this being approximately 1 m above the ground.

The Plaintiff’s pleading:

4.  Mr Chan pleaded the accident in the Amended Statement Claim in the following way:

“3. On the date of the accident (4^th October 2005), the Plaintiff was working at the said site as a metal worker in the course of his employment with the Defendant.  At all material times, the ground of the construction site was uneven.  Whilst the Plaintiff was using a pliers to straighten the intermediate steel wire of the chain link fencing, the steel wire was suddenly loosened from the pliers.  The Plaintiff lost his balance and fell backwards onto the ground.  As a result of the said accident, the Plaintiff sustained serious injury to his lower back.”

The Defendant’s pleading:

5.  In the Amended Defence a specific averment was made, asserting that Mr Chan had already put the steel wire through the chain-link fence, at the top and intermediate levels, and that the wire at the bottom level had, with the exception of about 1 m, not yet been put through.

Mr Chan’s evidence:

6.  In his witness statement, adopted as his evidence in chief, Mr Chan described the construction of the fence and the accident in the following way:

“2. On the day of the said accident, that was 4^th October 2005, my employer (the Defendant) and I, arrived at the site is about 8:10 a.m. On that day, I was responsible for the job of straightening steel wire of chain-link fencing (the said chain-link fencing) near the entrance of Pumping station No 1.  The said chain-link fencing was about 6 feet high and there were a total of 3 steel wires from the bottom to the top level.  The procedure of straightening steel wire was to first straighten the bottom steel wire, then straighten the intermediate steel wire and straighten the top steel wire at last.  The purpose of installing steel wire was to provide support to the body of the chain-link fencing.  Therefore after getting to steel wire to pass through the body of the chain-link fencing the steel wire must be straightened.  On the day of the accident, the steel wire required to be straightened was about 20 m long and with a diameter of 2 to 3 millimetres.  Before the said accident, I had finished getting the said steel wire passing through the said chain-link fencing and had straightened the bottom steel wire.  At about 9:15 a.m., I was taking up the job of straightening the intermediate steel wire (the said steel wire).  The said steel wire was about 4 feet above the ground level which was about the position of my chest.  At the time of the accident, I rotated the front part of the steel wire (i.e. the far end) once around a pair of pliers in the position of its teeth and held the pair of pliers tightly with both hands.  Upon standing firmly, I turned sideway to pull the said steel wire with force.  However, when I was pulling the said steel wire forcefully, the said steel wire was suddenly loosened from the pliers.  I lost my balance and fell backwards onto the ground.  As a result of the said accident, I sustained serious injury to my waist.”

7.  Immediately after the accident Mr Chan walked to where Mr Liu was working on a different task, a position some distance away from the fence, and informed him of the accident.  The accident was immediately reported to the safety officer of the principal contractor, and then Mr Chan was driven to Yan Chai Hospital for treatment.

8.  Mr Chan reasserted his description of the accident, and the procedure used, when, on 10 October 2005, six days after the accident, he was interviewed by a safety officer from Penta-Ocean.  He described the accident in the following terms:

“There were a total of three steel wires from the bottom to the top level and I used a pair of pliers to straighten them.  I would first straighten the bottom steel wire, then the intermediate one, and the top one at last.  Before the said accident, I had finished getting steel wire of over 10 m passing through the said chain-link fencing and had finished straightening the bottom steel wire.  About 9:15 a.m., while I was taking up the job of straightening the intermediate steel wire, the said steel wire was suddenly loosened from the pliers.  I lost my balance and fell backwards (on to the ground) and sat down on the ground.  When I wanted to get up, I felt that the waist was painful.”

9.  If the accident had happened as described there would have been an arguable case that the employer had failed to establish a safe system of work and Mr Chan might have succeeded in his claim.

10.  However, Mr Chan’s description of the accident, both in the Amended Statement of Claim, and in his witness statement, to which he adhered in giving evidence, was quite inconsistent with the objective evidence.

The Defendant’s evidence:

11.  Immediately following the report of the accident, and before he was given full details of the circumstances of the accident, other than that Mr Chan had sprained his waist while pulling the steel line wire of the chain-link mesh near Pumping Station No. 1., the safety officer employed by the principal contractor, Penta-Ocean, went to the scene of the accident and took a series of photographs.

12.  The fence upon which Mr Chan was working at the time of the accident, was approximately 20 m long, and began adjacent to an indentation in the concrete curb, approximately 1 m square.  It is convenient in describing the circumstances to refer to the end of the fence which began at the indentation as the left end of the fence, and the other end as the right end.

13.  It was Mr Chan’s evidence in chief, unshaken in cross-examination, that the accident had taken place at the right end of the fence while he was straightening the intermediate wire.

14.  The photographs taken at the scene, approximately 1 hour after the accident, and without anything having been disturbed, showed the fence with the top and intermediate steel wires in place.  On the ground, and lying to the left side of left-hand side of the left end of the fence is a coil of wire, its right hand end, that is the end adjacent to the left end of the fence, having been threaded through the chain-link mesh the distance of approximately 1 m. the remainder of the coil of wire, spread over a number of metres, is plainly ready to be threaded through the chain-link mesh.  A pair of pliers are inserted in the chain-link fence by the handles, approximately 10 cm above ground.  The pliers and the coil of wire appear to be attached to a red nylon rope.

15.  In his second witness statement Mr Chan described the technique of threading the steel wire through the chain-link mesh in the following way:

“3. In fact, the method of getting steel wire to pass through (the chain-link fencing) is to tie a plastic rope at the front end of the steel wire and lead the steel wire to pass through the rings of the chain-link fencing by means of the plastic rope.” (sic)

16.  Mr Chan’s evidence had been that the bottom steel wire was straightened first, then the intermediate wire, then the top one.  If the accident had occurred as he described, the bottom steel wire would have been in place, and straightened and fixed tight, the intermediate wire would have been in place, fixed at the left-hand end, but not yet straightened, and not fixed at the right end.  The top wire would either have not been yet threaded through, or would have been threaded through, but not straightened or fixed in place.

17.  When asked to explain why the photographs showed the bottom wire not yet in place, Mr Chan could offer no explanation.

18.  On the plain face of the photographs, the bottom steel wire had not yet been fully inserted in the chain-link mesh. Further, it appeared that both the top and intermediate wires had not only been inserted, but had been straightened, and fixed into position

The medical evidence:

19.  The medical records from Yan Chai Hospital showed that Mr Chan was seen at triage at the Accident and Emergency Department at 10:10 a.m.  The provisional diagnosis was given as “low back injury”.

20.  At 11:45 a.m. Mr Chan was seen by Dr Lee Chun-hing, a Medical Officer with some 10 years experience.  Dr Lee took a history from Mr Chan recording the following, (certain abbreviations were used, this description amplifies the abbreviations):

“Construction worker.

Past health good.

Injury on duty today.

Squatting down, pulling thing.  Sprained right low back sit on ground.

Pain present.  Lower limbs, no weakness no numbness.

Physical examination walking with limping.

Lower limbs no numbness no weakness.”

21.  Dr Lee was carefully cross-examined by Mr Ng.  I have had full regard to that cross-examination.  I am satisfied that in his description to Dr Lee, Mr Chan said that at the time of the accident he was squatting.  I am quite satisfied that Dr Lee would not have used the expression “squatting” unless it had been used by Mr Chan. 

22.  If, as he now asserts, Mr Chan was attempting to straighten the intermediate wire, he simply could not have done so from a squatting position, that wire being, on Mr Chan’s evidence 4 feet above the ground, or, according to the technical drawing for the fence, a little over 900 mm above the ground.  If, on the other hand, he was in the process of threading the bottom steel wire through the chain-link steel mesh, he would have been required to squat to undertake his work.

23.  When, six days after the accident, Mr Chan was interviewed by the Penta-Ocean safety officer, he was asked to mark on a scale plan the location of the accident.  He marked the plan with the letter “X”, placing that mark directly adjacent to the right-hand side of the indentation in the curb, at the left-hand end of the fence.  That marking, made only six days after the accident, was at the opposite end of the fence to where Mr Chan now asserted he was working, and was directly adjacent to the point in the fence where the photographs demonstrated that the process of threading the bottom steel wire had been taking place.

24.  In re-examination Mr Chan was asked about the position of the pliers, which the photographs showed were at the left end of the fence.  The re-examination went this way:

“Q.    You have been give a number of photographs to look at, for example photograph 57 of the bundle, and you said this photograph more or less represents the situation at the time of the accident, except, except the pliers.  You said also, when His Lordship questioned to you whether the pliers were the ones you used that day, you said yes.  And you also told us the last moment you were with the pliers was at the indented place.

A.  Yes.

Q. And would you please tell us have you ever left the company of this pliers after the accident.

A.  I left this pair of pliers after the accident when I went up to see a doctor.  I left the scene.

Q.  Where did you leave the pliers?

A.  When I left it was left in the same position.

Court.    As in the photograph?

A.  The place where I was injured.  The indented area.”

25.  Not surprisingly, in the light of Mr Chan’s final remark, Mr Ng then reminded Mr Chan that in his evidence in chief, and in cross-examination, he had said that he was injured at the far end of the fence, that is the right end of the fence, not in the indented place.  When asked to explain his answer Mr Chan said:

“I did not follow, because I was injured also there and I got up and walked to the indented place.”

26.  A Freudian slip is described as an unintentional, especially spoken, error that seems to reveal subconscious feelings.  It may also describe an unintentional spoken error that reveals the truth.  Mr Chan’s response in re-examination, that he was injured at the indented area, is a classic Freudian slip.  It was the truth. 

27.  That he was injured there is entirely consistent with the marking he made on the plan six days after the event.  It is entirely consistent with his statement to the doctor at Yan Chai Hospital that he was squatting when he was injured.  It is  entirely consistent with the objective photographic evidence.  That evidence demonstrates that it is more likely than not that the last work undertaken on the fence, and prior to the taking of the photographs, was at the left end of the fence,.  That work plainly involved the threading of the bottom wire through the chain-link mesh of the fence, prior to that wire being straightened.

Conclusion:

28.  Having regard to the whole of the evidence I am satisfied that Mr Chan has failed to establish that the accident occurred, either as pleaded, or as described by him in evidence in chief.  To the contrary, I am satisfied, on the balance of probabilities, that the injury to Mr Chan occurred, as pleaded in the Amended Defence, while he was squatting by the left end of the fence, threading the bottom steel wire through the chain-link mesh.

The rule in Poon Hau Kei:

29.  Where an accident occurs, on the basis of a scenario that is not pleaded by the plaintiff, but is pleaded by the defendant, and it can be established that negligence or breach of statutory duty arises on the defendant’s scenario, provided it does so in a fair manner, the court may, in those circumstances, find liability for the plaintiff against the defendant: see Poon Hau Kei v Hsin Chong Construction Company Ltd Taylor Woodrow International Ltd Joint Venture (2004) 7 HKCFAR 148, [2004] 2 HKC 235.

30.  The fairness required is that the court must be satisfied that the other party was made fully aware of the case he had to meet and had been given a full opportunity to deal with it.  Where, as in the present case, the alternate scenario has been fully and clearly pleaded, then usually there will be nothing unfair to either plaintiff or defendant in the court proceeding to find for the plaintiff on the basis of the defendant’s scenario.

Does liability arise on the defendant’s scenario:

31.  It is not sufficient to establish liability, either in negligence or breach of statutory duty, merely to establish that the accident occurred as pleaded by the defendant.  There will be occasions when if the accident occurs as pleaded by a defendant there will be no liability at all, but also occasions when even on a defendant’s scenario, the defendant may have been negligent or have been in breach of statutory duty.

32.  The only submission that Mr Ng was able to make to assert that liability arose on the part of the defendant was to argue that there was a failure to properly instruct or train Mr Chan in the work, and that it was reasonably foreseeable that to maintain a squatting posture to do the work might result in a sprained back injury.

33.  The act of threading steel wire through a chain-link mesh is a perfectly simple and straightforward action.  It requires no particular instruction or training.  It is perfectly normal for Hong Kong workmen to squat when they are undertaking work close to the ground.  Mr Ng argued that the guiding process must take some time and the worker would remain squatting for some time.  However he would not remain in one place, but would be constantly moving as he threaded the steel wire through the chain-link mesh.

34.  I am satisfied that there is nothing particularly dangerous about this work nor is there any obvious or foreseeable risk that a workman squatting to undertake his work might result in a sprained back injury.  No special training was required, nor was any warning to the workmen required.

35.  Of all the circumstances I am not satisfied that the defendant has been either negligent or in any way in breach of any statutory duty in relation to the system of work.

36.  Consequently the claim must fail, with an order nisi that Mr Chan must pay the defendant’s costs in the action.  Mr Chan’s costs will be taxed in accordance with Legal Aid Regulations.