WONG LEUNG CHI v. LUEN FAT CIVIL ENGINEERING LTD AND ANOTHER

HCPI975/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 975 OF 2002

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J U D G M E N T

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Background and parties

1. This action for personal injuries arises out of an industrial accident which occurred on 18 November 1999.

2. Mr Wong Leung Chi, (Mr Wong), sustained personal injuries whilst working on a construction site at Fortune Street Phase 2 & 3, Shumshuipo, Kowloon. At the time he was working he was employed by Leun Fat Civil Engineering Limited, the 1st Defendant (Leun Fat), as a drainage worker. Leun Fat was a sub-contractor to the main contractor, Yiu Wing Construction Company Limited (in liquidation), the 2nd Defendant, (Yiu Wing). Trifairco Engineering Company Limited, (Trifairco), who have been joined them to the proceedings as a third party by Leun Fat, is the supplier of gondolas used on construction sites to enable workers to work at a height on the exterior of a building.

3. Mr Wong was born on 10 January 1938. He was aged 61 at the time of the accident and is now 66 years old. He is married and has four adult children. In 1992, Mr Wong moved from the Mainland to Hong Kong where he has resided since. His four children and his elderly parents, all of whom are supported by him, remained in the Mainland.

4. As between Mr Wong on the one part, and Leun Fat and Yiu Wing, on the other part, liability is not in dispute. Leun Fat and Yiu Wing accept liability for the accident. The only issue between them is that of quantum. Leun Fat however say that Trifairco should carry a substantial portion of the responsibility for the accident. Trifairco seeks a contribution from Yiu Wing. The question of contribution between Leun Fat, Yiu Wing and Trifairco must therefore be considered.

The accident:

5. On 18 November 1999 at around 4 pm Mr Wong was working in a squatting position, constructing formwork at ground level adjacent to a building which was under construction. He was wearing a safety helmet at the time. A heavy sheet of plywood, measuring some ten feet by four feet, and to which was attached a galvanised iron sheet, fell from the building and struck him on the head, rendering him instantly unconscious. I am satisfied that the plywood sheet had, prior to the accident, formed part of a canopy, two storeys above the ground level.

6. The falling plywood sheet struck Mr Wong on the head and left shoulder. Fortunately, he was wearing his safety helmet, which was seriously damaged in the accident, but prevented what probably would have, in other circumstances, been a fatal accident. He was rendered immediately unconscious but revived shortly thereafter. He was taken to hospital in a taxi by a co-worker where a skull laceration was sutured. He was discharged later that night after observation.

7. Ever since the accident he has suffered and continued to suffer neck pain, left upper limb numbness and persistent dizziness. In the 4 months following the accident he attended consultations and physiotherapy treatment. He suffered paraesthesia over his left upper limb. An x-ray of his cervical spine shows spondylosis features. He was diagnosed to be suffering from cervical spondylosis with cervical radiculopathy.

8. He continued to suffer persistent dizziness and was referred to the Department of Neurosurgery of Kwong Wah Hospital for investigation and treatment. A test conducted on 21 March 2000, showed prolonged latencies of the upper limb, with somatosensory evoked responses bilaterally, which could be related to the cervical injury. He was diagnosed as, and treated as, a case of post-concussional syndrome until July 2000.

9. Mr Wong stopped attending treatment at Government hospitals after August 2000, as he found that the residual symptoms he was suffering of headache dizziness and neck pain were not being relived by the lengthy follow-up he had undertaken. He has thereafter resorted to treatment by bonesetters and Chinese herbalists in China, initially at a frequency of two to three times a month, but less frequently, due to his limited means, until the present time.

10. He was granted sick leave by the Government Doctors until 13 August 2000, but apart from two brief periods, has not returned to work following the accident. For the purposes of the Employees Compensation Ordinance, Cap 282, he was assessed by the Medical Board to be suffering 1% permanent loss of earning capacity in respect of the head and neck injury resulting in post-concussional syndrome. That assessment was increased to 4% upon review, in respect of head and neck injury resulting in post-concussional syndrome, neck pain and numbness of upper limb.

11. Mr Wong has been examined by Dr Brian Choa, at his own solicitor's request, and by Dr Edmund Woo, for the Defendants. Neither Dr Woo nor Dr Choa challenged the genuine nature of the symptoms Mr Wong now suffers. Both concluded that Mr Wong suffered a mild head injury, as shown by the short period of post-traumatic amnesia, and both concluded that he suffers from post-concussional syndrome. The subjective symptoms of neck pain and dizzy spells are not challenged by either Doctor, and are accepted as genuine. The only difference between the Doctors is that Dr Choa recognises the effects of the consequential post-concussional syndrome, pointing out that until his symptoms have responded to treatment he would not be fit enough to return to the construction industry, and then only in a reduced capacity. I accept that evidence.

12. Dr Choa points out that Kwong Wah Hospital has "regrettably given up on him, presumably because he has no structural damage to show". It is Dr Choa's view, which I accept, that Mr Wong's depression, chronic pain and dizziness, all of which are readily treatable, have been neglected. Dr Choa says that to make progress Mr Wong needs treatment from a neurologist in the private sector for a period of three to six months at a total cost of $12,000 for consultations and medication.

Assessment of Mr Wong:

13. I find Mr Wong to be a simple straight-forward person and I am satisfied that he was not exaggerating his symptoms and that he was genuine in his complaints. The diagnosis of post-concussional syndrome is entirely consistent with a situation where a man losses consciousness as a result of an accident, and has difficulty in recovering full health, notwithstanding apparently only mild physical injuries. When genuinely existing, and there is no suggestion as it does not in this case, it is debilitating and may result in near total loss of earning capacity if not properly treated.

14. Following the determination of his sick leave certificate in August 2000, Mr Wong attempted to go back to work. He worked on construction sites for two brief periods of one to two weeks, first immediately after he was taking off sick leave, and again in April 2002. He found, and I accept that he was genuine, that after working for a short period his dizziness and neck pain rendered him unable to cope with heavy duties or work at height. That is entirely consistent with Dr Edmund Woo's findings. Dr Woo recognised that memory loss may limit Mr Wong performance of work and then made the somewhat unrealistic comment that "the giddiness and neck pain may compel periodical rest during the day". I say unrealistic, for I think it is highly unlikely that any construction company in Hong Kong would take on a formworker, at the current salary in the order of $22,000 per month, if that formworker says to the employer "look from time to time I get giddy and I am going to have to stop work and take a rest until I recover".

15. I am satisfied that Mr Wong has suffered a permanent neurological impairment and that he has developed a post-concussional syndrome which has prevented him from recovering for capacity. His headache and neck injuries, although rather mild in physical terms, have rendered him feeling regularly dizzy and he is unable to resume his pre-accident high paid job in the dangerous environment of a construction site. He suffers continuing pain, and his circumstances are aggravated by the emotional burden of being unable to take care of his family in the way in which he would have intended.

PSLA:

16. His injuries fall below the bottom end of the serious injury category, but the consequences of those injuries are very real and will stay with Mr Wong for a considerable time. In the circumstances, in my view a of sum of $400,000 for PSLA is appropriate.

Pre-trial loss of earnings:

17. Miss Loh for Mr Wong contented for a pre-accident earning rate of $20,800 per month. A proper analysis of his pre-accident earnings shows that his average monthly wages were more in the nature of $18,000 per month.

18. Although aged 61 at the time of the accident Mr Wong enjoyed a good health, and there was no suggestion that he had suffered any other injuries that in any way prevented him from continuing to work. He is a relatively tall, slim and otherwise healthy looking man. I accept his assertion that he intended, with the family burden he carried, to continue to work in the construction industry until age 70. I accepted that working in the construction industry involves an element of strength which might not normally be found in a 70 year old man, but it is not uncommon in Hong Kong for man of that age still to be working at hard physical tasks. Mr Wong has 20 years' experience in the industry as a formworker and I am satisfied that he would have continued to earn at his pre-accident rate until age 70.

19. It is evidence of Dr Choa, which I accept, was that neurological treatment for a period of six months as the total cost of $12,000 might well return Mr Wong to at least 50% earning capacity. Mr Wong received that advice in November 2001. He decided however not to undertake that treatment but to go to China for treatment. Notwithstanding that he now seeks the sum of $12,000 as part of his claim and said that he will, if he receives that sum, undertake the treatment.

20. As Mr Law correctly pointed out there are procedures in place whereby, if funds are required for treatment, an application can be made to the court. This was clearly a case when such an application should have been made. Although $12,000 is a very substantial sum to Mr Wong, it is not a substantial sum in the context of personal injury litigation, and to undertake that treatment would have been proper mitigation of damage. Dr Choa's view was that Mr Wong's symptoms should respond to well treatment and he may be fit enough to return to the construction industry and a reduced capacity. Had he taken the treatment he should have been fit to return to some work by the end of May 2002. Weighing all of these matters I allow full loss of earnings until May 2002, thereafter at 50% of pre-accident earnings. Mr. Wong must give credit for the earnings made of $11,500.

The calculation is as follows:

Loss of MPF benefits:

21. Mr Wong claims loss of MPF benefits and the Defendant accepted this should be payable. The MPF scheme began on 1 December 2000. Mr Wong is entitled to 19 months at $900.00 per month, $17,100.00, and 26 months at $450.00 per month, $11,700.00, a total loss of $28,800.00

Future loss of earnings:

22. Mr Wong is currently 66 years old. For the reasons I have already given I am satisfied that he would work until the age of 70. I accept Miss Loh's submission that a post trial multiplier of 3 is appropriate in calculating loss of future earnings. The four cases cited fully justify such a multiplier. As an award it made for loss of future earnings there was no award from loss of earning capacity. The loss is 36 x $9,000 = $324,000.

Special damages:

23. Special damages in relation to medical treatment, travelling and medication expenses in the sum of $29,696 were agreed. Mr Wong said that he has incurred a further $4,500 by way of medical treatment and medication expenses in China, and travelling expenses of $2,200 go into China for treatment from early 2003 until the date of trial. He produced no receipts to justify these figures. That is entirely to be expected. The bureaucracy in China is simply not equipped to provide the evidence required for a personal injury claim in Hong Kong. Some allowance must be made but in the absence of receipts, I am not prepared to make full allowance. Under this head I allow a further $5,000.

24. Mr Wong intends to take the medical treatment recommended by Dr Choa and Mr Law does not challenge the appropriateness of the payment of $12,000 which is awarded.

Liability as between the defendants and the third party:

25. Counsel were agreed that by virtue of the provisions of Section 4 of the Civil Liability (Contribution) Ordinance Cap. 377, (the Ordinance), it was not necessary to engage in a discrete mathematical exercise involving an apportionment of liability between the Luen Fat and Yiu Wing, and assessment of the contribution of the Trifairco to the Luen Fat by virtue of the Third Party proceedings, and then a determination of the contribution Yiu Wing must make to Trifairco. The effect of Section 4 (1) of the Ordinance, is that in assessing contribution the court will, in effect, take an overall view, and determine the amount of the contribution to be made to an award of damages from any person liable to contribute, having regard to what is just and equitable, and having regard to the extent of that persons responsibility for the damage in question.

Construction and design of the canopy:

26. Yiu Wing was responsible for the construction of the canopy. The canopy was a canopy designed to prevent objects falling from the building to the ground injuring workmen in the near vicinity. Very commonly in Hong Kong buildings on construction sites are enclosed in a bamboo scaffolding and a canopy is erected, also bamboo, but covered with a nylon sheet to catch any falling object. Such a bamboo and nylon sheet canopy is plainly not designed as a working platform and a responsible employer would not reasonably expect workmen to use it as a working platform stop.

27. The canopy in this case is quite different. It is constructed of a steel framework bolted to the side of the building, on to which sheets of plywood, approximately 10 feet by 4 feet in size are fixed, and on top of those, a galvanised iron sheet has been placed. At the far outside the edge of the platform, additional horizontal iron bars had been placed, angled slightly upwards, again with plywood sheets covered with galvanised iron, placed on the bars. These are a further protection from falling objects.

28. A superficial examination of this canopy would in my view easily lead a worker to believe that he could use it as a working platform. A worker, properly instructed in safety procedures, would know however that it was not a proper working platform, because the worker would be exposed to a fall from a height, and no guard rails are constructed on the platform.

The operating system of the gondolas:

29. It is clear from the evidence that both Yiu Wing and Trifairco knew that the platform was being used as part of the operating system for the installation and removal of the gondolas. The system was that the gondolas were lifted to the platform, and placed there, and the cables and power supply then attached to the gondolas in order that it might operate. It must have been obvious to all that this procedure would be necessary because the mere existence of the canopy prevents the gondolas from being placed on, or lowered to, the ground. The existence of the canopy prevents the operation of the gondola in any normal way until it is lifted up on to the canopy. That being the case, there was a plain duty on both Yiu Wing and Trifairco to ensure not only that the working platform was secure and properly constructed for the purpose, but that it was safe for workmen to stand on.

30. I am accordingly satisfied that had Mr Wong included Trifairco as a Defendant in the action there is no doubt that he would had obtained judgment against Trifairco. Mr Lee, Trifairco's employee, in order to supervise the lifting of a gondola onto the canopy, went out onto the canopy. In doing so he made no check of the suitability of the canopy as a working platform and dislodged an unsecure plywood sheet from the canopy. That sheet fell and struck Mr Wong. when on the platform in preparation for the lifting of the gondola, Mr Lee should not have gone onto the platform without being sure that it was safe to use and that part of the platform would not fall from the canopy to the ground.

31. No warning was given to Mr Wong or other workers in the vicinity that work would be going on above them. They should have been warned and cleared from the area before anyone went onto the canopy.

Conclusion as to liability:

32. Mr Hung submitted that the responsibility of the Third Party in the accident should be treated on a de minimis basis and that no liability should be found against the Third Party at all. It is right that fine distinctions should not be drawn in finding of negligence and that a very small or slight level of negligence may result in a finding of de minimis and that negligence be put to one side: see e.g. Capps v Miller [1989] 1 WLR 839. But that is plainly not the case here.

33. Primary responsibility for the accident must fall on Yiu Wing because they are primarily responsible for the construction of the canopy and ought to have foreseen that in constructing a canopy of the nature used in this case it would also be used as a working platform. They were certainly aware that it was being used as a working platform, and as a working platform in the operation of the installation of the gondolas, for it had been used in that way for many months prior to the accident.

34. Trifairco took on the duty of installing the gondolas and in undertaking that duty had devised a system of work or operating system for the installation of the gondolas and their continued operation. The system they designed was that the gondolas would be lifted by a crane from a truck onto the canopy, where the wires and power supply would be attached to the gondola. It is plain that in order to use the canopy for this purpose men would be required to work on the canopy.

35. Trifairco knew that the canopy would be used as a working platform, yet took no steps whatsoever to ensure that it was safe to be used as a working platform. Three particular steps were required to ensure that it was safe. First, there ought to have been a fence around the platform. Second, the construction of the platform itself must be stable, secure and not liable to fall. Third, men working below the canopy should have been warned and cleared form the area before any work was undertaken on the canopy. None of these steps was taken by Trifairco. The canopy continued to be used, to the knowledge of Trifairco and Yiu wing, by workmen using the gondolas both as a means of access and egress to and from the gondolas, and to store the gondolas overnight.

36. Yiu Wing have constructed and permitted to be used a canopy as a working platform that was, in the circumstances entirely unfitted for the purpose.

37. Weighing all of these matters, I accept Mr. Law's submission that Luen Fat and Yiu Wing should bear 75% of the responsibility for the accident and Trifairco 25% of the responsibility.

Summary

38. The summary of the damages awarded is as follows:

PSLA	$400,000.00
Pre-trial loss of earnings	$780,500.00
Pre-trial loss of MPF	$ 28,800.00
Future loss of earnings	$324,000.00
Agreed special damages	$ 29,686.00
Further special damages	$ 5,000.00
Total	$1,567,986.00

Costs

39. The question of contribution arose through the Third Party proceeding, issued by Luen Fat against Trifairco, and a contribution notice issued by Trifairco against Yiu Wing. As between the Defendants and the Third Party, I am satisfied that each should bear their own costs on the question of liability. That will be an order nisi that there be orders no costs between the Defendants and the Third Party, that order to be absolute at the expiration of 14 days. Leave is reserved to apply in the event of an arithmetical or other error in calculation.

40. It remains only for me to thank counsel for the very sensible approach they took to this matter. I was able to express my views through the course of trial, those views were taken on board by counsel, as a result the scope of the evidence was greatly reduced, and matter disposed of very efficiently.