LAI CHING v. WONG CHIU KWAI t/a WING LAI and/or WING LAI ARTS JEWELLERY (a firm)

1996, No. PI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. The Plaintiff's claim is for damages for personal injuries suffered by him in the course of his employment with the Defendant. The Plaintiff's case is that since the mid-1980's he has been working for the Defendant as a jewellery worker, punching holes in wooden beads to be strung together. In this business operated by the Defendant, a total of four workers, including the Plaintiff, were engaged. The Defendant operates her business from a small factory situated at 28A1 Wo Yi Hop Village which also serves as the residence of the Defendant and her family. Sometimes when it rains, the roof of these premises leaks and in the past the Defendant would enlist the help of the four workers employed by her to help repair the roof to stop the leakage of water.

The Plaintiff's case

2. The Plaintiff gave evidence that in about November of 1993 the roof of the factory started to leak again. Because of this all the workers together with the husband of the Defendant transported metal sheets up to the roof some time in December using a ladder supplied by the Defendant. Several days before 1st January 1994, which was a Sunday as well as being New Year's day, the Defendant had requested the Plaintiff (who also lived in Wo Yi Hop Village, a short distance from the factory) to put the metal sheets in place on the roof of the factory on New Year's day. The Plaintiff said he had requested the Defendant to arrange for some more workers to help him with the work of putting the metal sheets in place on the roof but this was declined by the Defendant. A further reason given by the Plaintiff why he and not someone else was asked to do this work was because he was the lowest paid (calculated by hourly rate) of all the workers working for the Defendant.

3. After he was refused any extra help to assist him in putting the metal sheets in place on the roof of the factory premises, the Plaintiff alone went back to the factory on New Year's day 1994 to do that work. He was given the use of the ladder with which he had to ascend to the roof to carry out the work. This ladder given to him by the Defendant for this work was about 5 or 6 feet tall while the roof was about 8 to 10 feet from the ground. The ladder was the 'A' type of ladder which opened out at the bottom. There was no other way of gaining access to the roof than by climbing onto it with this ladder. Because he was alone for this work, there was no one else standing at the bottom of the ladder to hold it steady. After climbing to the top of the ladder, the Plaintiff had to manoeuvre himself onto the rooftop by using both his hands to press his body up to the roof there being a difference of some several feet between the top of the ladder and the roof. When he had got his body and one foot onto the roof, his other foot still on the top of the ladder lost its footing causing the ladder to fall as well as the Plaintiff. Both he and the ladder fell to the ground, a distance of some eight to ten feet. His right lower back landed on the ground with a loud noise. This attracted the Defendant and her husband who were inside. They came out and saw the Plaintiff on the ground and realised what had happened. The Defendant asked the Plaintiff if he was hurt and the Plaintiff replied that he did not know yet. He was able to get up and after a short rest, he went on with his work thinking or believing that he was none the worse off for it although he was feeling some pain.

4. Even after the New Year holidays, the Plaintiff was able to return to his normal duties at the factory of the Defendant on 3rd January. When he resumed work at the factory after the New Year, he told the other workers there, in particular Chan Ting Yuen, about the accident to him falling from the ladder. He also gave evidence that his back pain gradually increased. On 11th January 1994, the pain had gotten to such an extent that the Defendant's husband recommended a Dr. Mui at Chung On Street in Tsuen Wan to the Plaintiff. The Plaintiff consulted this doctor the same day but the pain did not subside and the Plaintiff could not return to work after the 10th January because of the pain.

5. On 15th January the Plaintiff was at the Rural Committee Office of Wo Yi Hop Village and at about lunchtime of that day he met up with one of the other workers of the Defendant, a male by the name of Chan Kwok Hei. Suddenly the Plaintiff's back became so painful that the Plaintiff could not move and requested Chan to phone for an ambulance. This Chan did and the Plaintiff was taken to Princess Margaret Hospital then transferred to Yan Chai Hospital and still later to United Christian Hospital.

6. The Plaintiff was diagnosed to be suffering from a disc prolapse. He was hospitalised until 31st January when he was discharged from hospital. He was put on out-patient physiotherapy for the next 10 months. In January 1995 he under went an operation and some of the pain was relieved for the next 5 months following but after that it recurred again. It is for this injury and the resultant disability that he now claims against the Defendant for damages.

The Defence

7. The Defendant appeared in person before me although the Defence was drafted and settled by her former Solicitors then acting for her. So too were the witness statements of the various defence witnesses prepared and filed by her former Solicitors.

8. The defence both pleaded and run at the trial was that the accident alleged by the Plaintiff never happened; that the Plaintiff was not at the factory working on the roof on New Year's day 1994, that the Plaintiff was never asked to work on the roof by himself and that there was never an occasion when the Plaintiff fell from a ladder while climbing onto the roof of the factory either on New Year's day 1994 or any other day. Contributory negligence was not pleaded in her Defence.

9. The Defendant herself gave evidence to the effect as stated above. It was implied in her evidence that the Plaintiff had made up this whole story of being injured at work, having fallen from the ladder, because the Defendant had scolded the Plaintiff for gambling when the Plaintiff requested the Defendant for a loan of $5,000.00 in early February 1994. The Defendant's evidence was that the Plaintiff had all along had back pains during the time he was working at the factory and that the Plaintiff had suddenly stopped working at the factory after 10th January 1994 saying that he was going back to China.

10. In so far as liability is concerned, the Defendant called the other three workers. Chan Ting Yuen and Kwong Kam Kwong both gave evidence that 1st January was a holiday and that they did not have to work therefore they did not return to the factory in Wo Yi Hop Village and could not say what did or did not happen there. Both of them also gave evidence that between the 3rd and 10th of January 1994, they saw the Plaintiff at work and the Plaintiff appeared to them to be normal. Both said the Plaintiff did not mention anything about falling down from a ladder during that period of time.

11. Chan Ting Yuen also told the Court that when the Plaintiff was at Yan Chai Hospital, he had visited the Plaintiff once there. During this visit he had asked the Plaintiff what had happened. In reply the Plaintiff told him that he had hurt himself but did not say how he had injured himself. Chan did not ask the Plaintiff any further.

12. The third witness called by the Defendant on the issue of liability was Chan Kwok Hei. He also gave evidence that he was not back at the factory on 1st January 1994 and therefore could not say what had happened at the factory. He also gave evidence that on 15th January 1994 at about lunchtime he went to the Rural Committee Office of Wo Yi Hop Village as was his usual practice during lunchtime. There he saw the Plaintiff. At the time the Plaintiff was experiencing severe back pains, so bad that he could not move. The Plaintiff requested him to phone for an ambulance which he did but he did not remain there after phoning for the ambulance but returned to the factory to work. In cross examination he said that when he visited the Plaintiff in hospital the Plaintiff had mentioned to him that the Plaintiff fell from a height and had injured his back although the Plaintiff did not say when or where it was that he fell from, nor did he ask.

Findings of Fact

13. Having heard the Plaintiff as well as the evidence of the Defendant and the various defence witnesses I am quite sure that what the Plaintiff had told me was true as to how and when the accident occurred. The Plaintiff's account is supported in various ways by other evidence. First and foremost the medical evidence shows that the Plaintiff in fact suffered the injury he complained of. Secondly the evidence shows that the Plaintiff was indeed the lowest paid of all the four workers in the Defendant's factory. The Plaintiff was paid $140.00 a day while Chan Ting Yuen said he was paid $240.00 per day and Kwong Kam Kwong's evidence was that his daily wage in January 1994 was $400.00 per day. This supports the reason given by the Plaintiff why he, and not any of the others were asked to work on the roof of the factory premises on New Year's day 1994 despite the fact that it was a public holiday. Thirdly the evidence of Chan Kwok Hei was that the Plaintiff did mention to him that his back pains was because of a fall from a height. This according to Chan was told to him by the Plaintiff when he (Chan) visited the Plaintiff in hospital several days after the 15th January 1994. That was at a time well before the occurrence in early February which, according to the Defendant, sparked off the Plaintiff making up such a story against her.

14. On the other hand I find certain aspects of the defence evidence incredible and unbelievable. I cannot believe that Chan Ting Yuen and Kwong Kam Kwong were never told and never asked the Plaintiff how his back injury came about, even after he was admitted to hospital. Moreover I find it quite unreal that between the 3rd and 10th January, a time when the Plaintiff's back pains must have been gradually worsening, that the Plaintiff would have just kept quiet about it and not say a word of it to his fellow workmates at work, yet the evidence of the two of them were that the Plaintiff appeared normal and had not said anything about having fallen or was experiencing back pains.

15. Moreover, having seen the Plaintiff in the witness box, I have formed the view that he is not a person possessed of such mental intelligence to be able to make up such an intricate story as what he told the Court in evidence. Quite the contrary, there is a ring of truth in what he said happened.

16. I therefore find that the Defendant had requested the Plaintiff to repair the roof of the factory premises on New Year's day and for that work he was supplied a ladder by the Defendant which was several feet short of reaching the roof. I further find that the Plaintiff's request for some more person or persons to help him in carrying out the work on the roof was turned down by the Defendant. When the Plaintiff tried to climb onto the roof from the top of this ladder he lost his footing and fell some 10 feet to the ground causing the disc prolapse. This fall after it had occurred was well known to the Defendant and her husband who came out of the premises to find the Plaintiff lying on the ground having fallen.

17. Despite the initial pain caused to the Plaintiff he was still able to endure it and return to work the following week or so until it became so severe that he was recommended by the Defendant's husband to consult a Dr. Mui at Tsuen Wan. That did not help and the pain continued until he was hospitalised on 15th January 1994. It was because of this injury and the escalating pain suffered by the Plaintiff that caused him to stop work at the factory on or about the 10th January 1994. After his discharge from hospital, the Plaintiff never resumed his former work at the Defendant's factory.

Liability

18. It is trite law that an employer is under a duty to provide a safe place of work to his/her employees. This includes the plants and equipment provided by the employer. Furthermore this duty of the employer is non-delegable.

19. In the present case, the Defendant, on the facts as I have found, is in breach of her duty to the Plaintiff in firstly providing him with a ladder to reach the roof but which was some several feet or so short of the roof; and secondly failing to provide the Plaintiff with any other form of assistance so as to enable another person to hold onto the ladder to steady it while the Plaintiff was climbing from the top of the ladder onto the roof.

20. In the circumstances I find the Defendant liable to the Plaintiff in negligence. I have not considered the issue of contributory negligence since it had neither been pleaded nor had it been relied on by the Defendant at the hearing before me.

Injuries and treatment

21. The Plaintiff was admitted to the Accident and Emergency Unit of Princess Margaret Hospital on 15th January 1994. From there he was transferred to, first, Yan Chai Hospital and then to Caritas Hospital. He stayed in Caritas until he was discharged on 31st January due to lack of hospital bedspace. While in hospital he was given physiotherapy treatment and the pain in his lower back which was radiating all the way down to the toes of his right leg improved somewhat. After discharge from hospital he was put on outpatient physiotherapy for the next 10 months with little change. A myelogram was performed in Princess Margaret Hospital in November 1994 which showed a prolapsed disc at L4-5 level with compression of nerve root. An operation was performed on the Plaintiff on 12th January 1995 and he was discharged from hospital on 17th January. After the operation, there was a further improvement by some 20-30% of the pain suffered by the Plaintiff for 5 months and then the pain recurred.

22. The Plaintiff was examined by Dr. Chun Siu Yeung in July 1997. At the time of examination the Plaintiff still complained of low back pain occurring with prolonged sitting of over 2 hours, pain of the right leg aggravated by walking or sitting of over 2 hours and weakness of the right foot and toes. Dr. Chun came to the conclusion that it was likely that the L4-5 disc was degenerated before 1994 but remained asymptomatic until the fall which then caused the prolapse of the L4-5 disc producing symptoms of pain at the low back and right sciatic pain. Dr. Chun further concluded that the Plaintiff suffers a total impairment of 24% of the whole person and his loss of earning capacity is in the region of 35% and that no further surgical treatment would be likely to improve his condition.

23. Dr. Chun was of the opinion that the Plaintiff could still work as a craftsman without having to lift heavy objects provided he could get up from time to time for short periods of back exercises.

Pain suffering and loss of amenities

24. For this head of damage I have been referred to a number of recent Hong Kong awards relating to disc prolapse and back injuries due to previous degenerative changes which was asymptomatic. The range of awards in those cases varied between $210,000.00 and $300,000.00. In the present case I take the view that the injuries suffered by the Plaintiff falls short of the 'Serious category' laid down in Lee Ting Lam's case. Accordingly there will be an award of $300,000.00 as compensation to the Plaintiff for pain suffering and loss of amenities.

Past Loss of Earnings

25. Since his hospitalisation on 15th January 1994, the Plaintiff was granted sick leave up to the end of December 1995. The evidence from the Plaintiff is that since the accident he has not worked because he still experiences pain in his lower back. He had tried to look for work on 2 occasions - one selling vegetable at a stall and the second selling miscellaneous items. On both occasions he was not hired because the owner of the stall did not want the trouble of having to engage another worker in case the Plaintiff had to leave the work due to his back pain. The Plaintiff also said that he did not approach the Labour Department for jobs.

26. In this respect the Defendant called 2 witnesses in an attempt to show that the Plaintiff was capable of working and did work at some time before the trial. Tam Kam Yuen's evidence was that in November 1996 he had paid the Plaintiff $700.00 to carry 10 bags of cement (45 kg. per bag) and 40 bags of sand (40lbs per bag) down a hillpath near Wo Yi Hop Village. However he did not stay around to see the Plaintiff doing the work but that he came back later to see the work completed. The Plaintiff does not dispute that this had happened but said in evidence that he did not do the work personally but had paid over the $700.00 to another person, Kam Ho, who did all the work of carrying the 50 bags downhill.

27. Ching Kam Hei also gave evidence that in mid-1994 when he went to a bus stop to wait for a bus near Shing Mun Road, he saw the Plaintiff working nearby re-surfacing a path. Again the Plaintiff does not deny such an occurrence but says that he was not working on that occasion but merely distributing spades to others to lay the path.

28. Having heard all this evidence and taking into account the evidence of Dr. Chun, I find that after the end of December 1995 the Plaintiff was certainly capable of some form of light work which did not require him to lift heavy objects or to sit for long periods.

29. For the 2 years sick leave period up to the end of December 1995 the Plaintiff will be awarded full loss of earnings calculated at the daily wage of $140.00 plus $20.00 meal allowance working 25 days a month on average giving a monthly income of $4000.00. The total amount of lost earnings for the 2 years comes to $96,000.00

30. For the period from 1st January 1996 until trial, doing the best I can in the circumstances, I will quantify his loss of earnings for that period to be $2,000.00 per month. The loss for a period of 2 years and 5 months up to trial comes to $58,000.00.

31. The total past loss of earnings is therefore $154,000.00

Special Damages

32. The other special damages claimed by the Plaintiff are in respect of medical fees of $688.00 as an in-patient and $468.00 as an out-patient. These are supported by receipts from the Hospital Authorities and have not been disputed by the Defendant. They will be allowed totalling $1,156.00

Future Loss

33. There is no claim for future loss of earnings. The only claim for future loss is a claim for handicap in the labour market for which the Plaintiff claims $200,000.00. Mr. Cheung appearing for the Plaintiff in this case fairly concedes that $200,000.00 under this head is on the high side and difficult in the circumstances of this case to justify. He suggest a sum for this head of damage to be calculated based on 2 years loss of earnings to be more appropriate.

34. In the circumstances of the present case there is a real risk that the Plaintiff will suffer a disadvantage in the labour market as has been demonstrated by his earlier failed attempts on two occasions to secure work - in particular the reason given why he was not employed.

35. In calculating the amount to be awarded under this head, I am in full agreement with Counsel's suggestion. Two years loss of earnings will come to $48,000.00 and that will be the award under this head.

Interests

36. Interests will be awarded on general damages of $300,000.00 at the rate of 2% p.a. from the date of Writ to date of judgment. This will come to $9,500.00. Interests will be awarded on special damages of $155,156.00 at the rate of 5.75% p.a. from the date of accident to the date of judgment. This will come to $39,775.00. Total interests up to trial will therefore be $49,275.00.

37. In the circumstances, the total quantum including interests up to date of judgment will come to $552,431.00. Form this sum will have to be deducted the sum of $249,024.00 being the amount already received by the Plaintiff under the provisions of the Employees' Compensation Ordinance. There will therefore be judgment to the Plaintiff in the amount of $303,407.00.

38. There will be the usual costs order nisi in favour of the Plaintiff and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.