KWAN YIU YAM v. RICH GLOBAL ENGINEERING LTD AND OTHERS

HCPI 1086/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1086 OF 2004

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J U D G M E N T

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1.  Until 27 December 2001 Kwan Yiu Yam, then aged 50, earned his living as an accredited welder with about 10 years experience.  As such he was employed from time to time to undertake casual work on construction sites by contractors or sub-contractors, for which usually he was paid a daily wage.

2.  For the month of December 2001 he was so engaged.  Work was being undertaken to renovate and extend a stone building, designated a laundry, within the Correctional Services facility on Hei Ling Chau.  Mr  Kwan undertook his welding uneventfully until 27 December when, during the course of his work, he fell and hurt himself, fracturing bones in both wrists and suffering a cut to one of his eyelids.

3.  As it transpired the most serious injury was to his right wrist.  It has not fully healed and he has now lost a significant amount of mobility and strength; he says, to the extent that he can no longer carry the sort of heavy loads that is an essential feature of his job.  So, now he is only good for menial activity and a much lower level of income.

4.  Claiming negligence, breach of contract and breach of statutory obligations owed him on the part of the three defendants, Mr  Kwan has brought this claim.

The Defendants

5.  It is pleaded and not contested that the 3^rd defendant was at the time of the accident the principal contractor on site and the 1^st and 2^nd  defendants were sub-contractors.  Although liability of any sort is denied, because Mr Kwan was the author of and fully responsible for his own misfortune, no point has been taken that any of the defendants should not have been joined.

The Work being Done

6.  The laundry is rectangular in shape and has one storey and a pitched roof.  The main work to be carried out was the construction of an extension along one of the long sides of the building designated on plan a Sheltered Works Area.  Mr Kwan was hired to construct by welding of iron bars a framework to which would come to be affixed prefabricated cladding to form the roof of the extension.  According to the plans, this required him to work at a height of up to 2.4 metres.

The Accident

7.  During the course of his welding these iron bars Mr Kwan fell from a height and suffered the injuries I have referred to.  No one saw him fall; thus, apart from his own account, there was no direct evidence put up as to how it happened.  But it is not disputed that he was not working from a working platform or other recognized safety device.  He was wearing a hard hat and safety harness but the harness was not anchored.  So it was that when he lost his footing there was nothing to impede the fall and his resultant injuries.

8.  What is significantly in dispute is as to whether there was a working platform on site which Mr Kwan could have made use of but chose not to.  A secondary issue is whether Mr Kwan could have anchored his safety harness.

The Evidence on Liability

9.  Mr Kwan was the sole witness in support of his claim. A director of the 1^st defendant, which I should call for short Rich Global, named Fung Chi Wah, was called for the defence.  The third and final witness of fact, surprisingly, was a Labour Department safety officer called Sun Wang Fai; surprising, because he had no direct knowledge of what happened.  Yet as I shall come to, his evidence is crucial as to the outcome.

10.  Mr Kwan confirmed his credentials and experience.  He came to the site on 1 December, having been recruited by a foreman of Rich Global called Cheung Mo.  He worked continuously through to 27  December.  On that day he began welding at rooftop level from about 9  a.m.  He climbed to that position by an A ladder and thereafter remained there continuously for more than 2 hours.  During this time he supported himself by standing and squatting on the framework and a wooden plank which he had put up there for the purpose.

11.  As it transpired, his evidence about whether or not there was on site a working platform was inconsistent.  In the witness statement which he adopted from the witness box he had stated:

“As Cheung Mo urged (me) to complete the works quickly (and) there were no working platform at the site or any other apparatus for me to work on top of the iron frame-work, I had no alternative but to use an A-shaped wooden folding ladder for climbing up to work on top of the square iron tubes in order to complete the works in the earliest time.”

And from the witness box he said: “when I was asked to do the job, there was no working platform available for me to use.  I made use of a wooden ladder.”

12.  But then he went on to state that he had in fact played a part in assembling an apparatus out of tubular steel and timber whose description, as it happened, broadly speaking matched that of the device Mr Fung of Rich Global was subsequently to say was on site for use by the workforce, including Mr  Kwan.

13.  Having thus spoken of the existence of the working platform Mr Kwan went on to say that on the day in question he could not have used it; partly because he was put under pressure to finish his work as quickly as possible, but more specifically because of the surface of the ground immediately below where he was welding.  Others of the workers on site had dug ditches and channels for the installation of waterpipes, conduits and the like.  So, the surface was quite unable to provide a stable foothold for the platform.

14.  As to the harness, it was not anchored because there was no suitable bracket or series of brackets to which it could be attached.  He was not asked why he bothered to put it on if that was the case.

15.  After more than 2 hours of continuous work he lost his footing and crashed to the ground. 

16.  He was taken by boat and helicopter to QMH where he was examined and treated for his injuries later that day.

17.  Mr Fung said that the second defendant, called for short Rich Source, was the sub-contractor from the main contractor, the 3^rd defendant, and had itself sub-contracted part of the work to Rich Global.  Mr Kwan had been recruited by Chung Chuen Kwan.  It was Chung’s responsibility to instruct Mr Kwan and to supervise his work.  On site was a working platform of a sort typically in use on construction sites in Hong Kong, made available for use by any of the workers who from time to time was required to work at a height.  This work included tiling and panelling on the pitched roof, whose height according to the plans would have been up to 5 metres from ground level.  Aided by a photograph of an apparatus made of tubular steel and timber planks, he said this was a typical working platform and similar to that on site.  It comprises 4 vertical pipes which are connected and braced, with pipes fixed horizontally to support planks at varying heights from which the workmen can undertake their tasks, protected also by horizontal guard rails.  Access is by ladder.

18.  He confirmed also that there were available for use helmets and safety harnesses; further, that there was ample opportunity for Mr  Kwan to anchor his harness.

19.  Asked about the condition of the ground around where Mr  Kwan was working, he said there were miscellaneous pieces of equipment and the usual detritus one would expect on any building site, but the surface of the land was not so disturbed as to have prevented the use of the platform.

20.  When asked whether there was a particular need for urgency in completing the work, he said Mr Kwan was close to finishing, and there was no such need.

21.  I come now to the evidence of Mr Sun, of the Labour Department.  On 21 March 2002 he was assigned to investigate and report on an industrial accident the particulars of which were sent out in a statutory document known in the Department as a Form 2.  He confirmed that the Form 2 he received was dated 6 February 2002, that the injured party’s name and particulars were those of a Mr Kwan, and that the accident referred to was one suffered on 27 December 2001 in the vicinity of the laundry hut on Hei Ling Chau.

22.  What Mr Sun said he did first was to write to Mr Kwan, inviting him to come in for an interview on a specific date and time.  But he did not hear from him, and he did not turn up.  A copy of the letter confirmed that the addressee and address matched that in the Form 2. 

23.  The next step Mr Sun took was to telephone Mr Kwan, using the mobile number in the Form 2.  Whether he got through first time he is no longer certain of, but his notes reveal that the phone was picked up on 27  May, by a man who answered the description of the Mr Kwan in the Form 2.  Mr Sun said he made notes of what was said; not verbatim, but with sufficient detail to assist him in the report he was to make.  The call lasted about 15 minutes.  In the normal course he would invite an accident victim to come to his office and provide details of the accident in a statement.  On this occasion, he formed the view that Mr Kwan was not prepared to come in; this consistent with his apparent failure to respond to the written invitation.  So it was he chose to ask Mr Kwan to tell him what had happened over the phone.

24.  This is what he said.  He was welding iron bars at a height of 1.5 metres from ground.  For the purpose he was working from a working platform of a sort commonly found on construction sites.  Having completed that work to a certain point he returned to ground level.  But reviewing from there the welding he had already done, he noticed there was a need to make good some of the welds, and he returned to height to do this.  But he did not do so by the working platform, choosing to balance instead on the metal frame.  It was when he was stationed there that he lost his balance and fell.

25.  From his notes and recall of the conversation Mr Sun compiled a report.  The report is dated 17 June, but he believes he prepared it on the day of the conversation, 27 May.  In any event, he deposed that his memory was fresh when he wrote it.  I repeat verbatim the pertinent part.  I/P refers to the injured person, Mr Kwan.

“At the time of accident, I/P just completed the welding work for a certain portion of the frame.  He got down from the working platform to ground level.  However, after examined some welding joints, he found some welding defects for the joints.  Thus, he hastily climbed up to the metal frame, without the use of access ladder and working platform, so as to carry out touch-up work for the joints.  While he was working on the metal frame, his feet suddenly slipped and lost his balance.  As a result, I/P fell down for 1.5 metres to the ground level below and sustained the above mentioned injuries.

Observations

I/P claimed that there were suitable working platforms and ladders on the site for him to carry out welding work for the metal frame.  In addition, he also claimed that he had used the working platform for the welding work before the accident.  However, he chose another unsafe method of access and working on the metal frame (without the use of any suitable working platform).  It was clear that this accident could have been avoided if I/P used the suitable working platforms which he previously used.”

26.  I should mention that Mr Sun said he did visit the site in April  2002.  But by then the work was largely finished and nothing material was revealed by that visit.

27.  In cross-examination he was unshaken as to the truth and accuracy of his account of what he had done and what had taken place. 

28.  So, how did Mr Kwan react to this evidence, which was clearly damning to his prospects of success?

29.  Having confirmed that Mr Sun’s Form 2 contained accurate details of his address and phone number, yet he denied having received the letter inviting him to attend his office on the given date.  Had he been invited he would surely have attended; it would have been in his interests to do so.  He also confirmed that the telephone number in the Form 2 was that of his mobile phone and that he was the sole user and guardian of the telephone.  But he denied that he spoke to Mr Sun over the telephone on 27  May or at any time about the accident.  The conversation did not take place, at least not with him.  And whatever his source, Mr Sun’s version of events was not true.  He had not been using a working platform.  He had not climbed down from it and then returned to height and then fallen.  His account, not that given by Mr Sun, was how the accident happened.

Discussion

30.  That which is most compelling in resolving the dispute of facts is as to whether or not there was the conversation between Mr Sun and Mr Kwan on 27 May.  If it did take place, and Mr Sun’s account of it is accurate in material aspects, it amounts to an admission by Mr Kwan that he was the author of his own misfortune; that he could have made use of the working platform from which he had been safely welding moments before but had chosen not to; had he done so, he would not have fallen and not have hurt himself.  Of course, I have to consider Mr Kwan’s denial, under oath, that there was ever such an admission made, and the contrary version he put up.  But this would mean that Mr Sun, a Labour Department man with no interest in the case, had apparently made up that he had spoken to Mr Kwan when he had not, and had then concocted a damaging version of events.  I cannot and do not accept that he stooped to that.

31.  Nor could it sensibly be possible that someone else answered the telephone, masqueraded as the victim, and then misled Mr Sun as to what had happened.

32.  Further, I have to pay heed to Mr Kwan’s evidence from the witness box that there was, after all, a device on site for use as a platform, he having stated the contrary in his witness statement.

33.  And there is this further feature; how could the roofers have managed to carry out work on the roof if there was no working platform on site?

The Result

34.  The inevitable conclusion I come to, adverse to the interests of Mr Kwan, is that Mr Sun did speak to him, and did get from him the account that he reproduced in his report and confirmed from the witness box.  That was an admission by Mr Kwan that he could have used the working platform but chose not to and fell as a result.

35.  I make no finding on the issue of whether Mr Kwan could have been anchored by his safety belt.  In the event, that is no longer material.

36.  Mr Kwan has failed to prove liability; his claim for damages is dismissed.

37.  There will be an order accordingly with costs, nisi at first instance, to the defendants.  The plaintiff’s own costs are to be taxed under Legal Aid Regulations.

Quantum

38.  In case it is of assistance to the parties or becomes a necessary feature of the case, I come now to deal with what Mr Kwan could have expected to win had the defendants been found wholly liable, jointly and severally.

PSLA

39.  This has been agreed at $220,000.00.

Loss of Earnings

40.  Mr Kwan was earning $700.00 per day.  He claimed he worked on average 26 days per month.  The counter proposal is 22 days per month.

41.  Given that on most sites work would not have been possible on Sundays, the 26 days per month would have to be the maximum possible.  But it would be unrealistic to expect a casual worker to get work so regularly.  There must be allowance for days between projects, for holidays and for weather, for he would only have been paid when on site and working.  22  days is to my mind much the more realistic version and I adopt it.

42.  Mr Kwan was given sick-leave until March 2004, amounting in all to 27 months.  A further 2 months would have been warranted to enable him to return to the market.  That is not in issue.  What is, is the nature of the work Mr Kwan was thereafter capable of undertaking.

43.  Each side engaged the services of an orthopaedic surgeon.  Mr  Kwan sought the assistance of Dr Johnson Lam, and the defence appointed Dr KC Lam.

44.  Dr Johnson Lam reviewed the extent of disability in the right forearm, and opined that the deformity, stiffness and weakness rendered not possible Mr Kwan’s return to pre-accident employment, with its demands on carrying around heavy objects, and other strenuous physical activity.  Dr KC Lam did not find the disability to be so serious.  He was influenced by the apparent lack of muscle wasting.  He was of the view that Mr Kwan could return to undertake welding work, with some limitation in efficiency and tolerance.

45.  My view is to prefer and adopt the conclusions of Dr Johnson Lam.  Although the doctors could not agree on the severity of disability it is apparent that there has resulted significant loss of dexterity and strength.  Whilst Mr Kwan might be as capable a welder as he was pre-accident, it would not be feasible for him to continue to perform and command such income as a fully fit welder might expect to receive. 

46.  Welders do not have assistants to carry out the heavy work.  Invariably they have to work alone, carrying their equipment, and manipulating the iron sheets and other material they are working on.  Mr  Kwan was so engaged, working alone, on Hei Ling Chau.  Now, as I find, that would be beyond him.  Realistically, it would be hard to imagine an employer agreeing to hire him if he could only do light work unaided, even if paid a lesser income.

47.  I accept that Mr Kwan must now be limited to menial activity, which I fix at $8,000.00 per month.

48.  For the period post-trial, the agreed multiplier is 5.

MPF

49.  I fix this at the statutory figure of 5% on the income pre and post-trial.

Loss of Earning Capacity

50.  This is agreed at $18,000.00.

Future Medical Expenses

51.  The injuries are now stable.  I allow for no further expenses.

Special Damages

52.  These are agreed at $21,606.00.

Interest

53.  This is fixed at 2% on the PSLA from the date of the writ to the date hereof and at 3% on the special damages and pre-trial loss of earnings to the date hereof.

The Remainder

54.  Of course there must be an allowance for the Employee’s Compensation paid; further, the costs order would have to be reversed.