WONG WING CHOW v. LEE WING HANG PATRICK t/a WING SHUN CONSTRUCTION CO AND ANOTHER

HCPI 244/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 244 OF 2002

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J U D G M E N T

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INTRODUCTION

1. This is an action for damages for personal injuries suffered by the Plaintiff as a result of an accident which arose out of and in the course of his employment with the 1st Defendant on 29 March 1999. The Plaintiff was a construction site worker and was aged 58 at the time of the accident. The 2nd Defendant was the principal contractor responsible for the construction site where the accident occurred and the 1st Defendant was its subcontractor. There is no dispute that the Plaintiff fell and hurt his right ankle while descending a ladder into a ditch where he was to work. The Plaintiff's claim against the Defendants is based on the Defendants' breach of statutory duty imposed under Regulations 38A, 38O, and 38P of the Construction Sites (Safety) Regulations, Cap 59 and section 6 of Occupational Safety and Health Ordinance, Cap 509, negligence, breach of employer's duty under implied terms of his contract of employment and breach of duty of care owed by them as occupiers of the construction site. The Defendants denied liability and, in the alternative, pleaded contributory negligence on the part of the Plaintiff.

The Accident

2. The parties disputed how the accident occurred. The Plaintiff's case is as follows. On 29 March 1999, he was instructed to do overtime work in excavating a ditch where he had worked before. After having meal, he proceeded to the ditch which was about 4 metres deep and 3 metres wide. The only access to the ditch was by an aluminium ladder of 4 metres in length. The rungs of the ladder were round in shape and each rung was spaced approximately 1 foot apart. There were no handrails on the ladder. The ladder was not secured to any support and protruded only by a few inches above ground level. At the time, it was drizzling and the site was wet and muddy. The ditch was also wet inside due to the presence of underground water. The Plaintiff was wearing boots and gloves but was not holding anything in his hands. He descended the ladder in the normal manner with his back away from the ladder. His hands were on the ground with his body bending forward while descending. He put one foot on the first rung which was about 1 foot below the ground level. As his other foot stepped onto the second rung, he slipped, lost his balance and fell to the bottom of the ditch to a depth of about 4 metres. He slipped because the rung was wet and slippery. His two colleagues, including Law Mou Sun ("Law") who were inside the ditch hoisted him up to the ground level. He was taken to Caritas Medical Centre. As a result of the accident, he suffered a fracture in the calcaneum of his right foot.

3. The Defendants gave a different description of the access to the ditch and a different account of how the Plaintiff fell. The ditch was flanked on all sides by H-shaped steel sheets to prevent mud from collapsing into the ditch. As the excavation progressed to a depth of about 3 metres, a platform was built. Access to the platform in the ditch was by way of an aluminium ladder of about 4 metres long which protruded by more than a foot above ground level. The ladder was secured to the steel sheets by ropes. Access from the platform to the bottom of the ditch was by a wooden make-shift ladder, which was basically made of two wooden poles with wooden rungs in between. Additional rungs were added to this ladder as the excavation progressed in depth. Law watched the Plaintiff as he descended the ladder. Initially, the Plaintiff descended with his back against the ladder. Then as he tried to turn around, he lost balance and fell.

4. In the light of the evidence from both parties, the internal configuration of the ditch, the length of the ladder protruding above ground level, whether there was just one ladder or two ladders and even whether the ladder was secured are immaterial, except as regards the credibility of the respective parties' witnesses. The real issue is how the Plaintiff descended. This case stands or falls on the credibility of the witnesses, especially the Plaintiff, as he bears the burden of proof.

5. According to the 1st Defendant, he attended the construction site and inspected the ditches every day. He inspected the ditch from ground level by looking into the ditch and talking to the workers. There was a platform in the ditch and access to the ditch was by way of two ladders. On the day before the accident, he saw the ladder secured to the H-shaped steel sheets. He could not recall if the ladder was so secured on the day of the accident. He impressed me as an honest and sincere witness. He did not exaggerate. If he wished, he could easily have said that he saw the ladder so secured on the day of the accident, but he did not. I accept his evidence.

6. The safety officer of the 2nd Defendant gave evidence about the configuration of the ditch, the platform and the two ladders. He was informed of the accident and made an inspection on the following day. But he had no recollection of what he saw. I give no weight to that part of his evidence.

7. The Plaintiff's co-worker, Law, said in his evidence in chief that there was a platform inside the ditch and access to the ditch was by way of an aluminium ladder to the platform and from there by a wooden make-shift ladder to the bottom of the ditch. He saw the Plaintiff descended in the wrong way with his back to the ladder and fell as he tried to turn around while he was stepping on the second and third rungs. Under cross-examination, he agreed that he could not recall whether there were two ladders or just one. He also agreed that when the Plaintiff fell he was digging with his head looking down. He then corrected himself in answer to the subsequent questions that in fact he had descended to the ditch shortly, had not yet started to work and was looking up watching the Plaintiff descend into the ditch. Probably, he misunderstood the question put to him. Towards the end of the cross-examination, when counsel put to him that he was digging and did not witness the accident, he appeared confused and agreed with the suggestion. But he reverted to his original evidence under re-examination. The accident occurred on 29 March 1999. Law gave his statement three and half years later describing the accident and gave his evidence a year after the making of that statement. At the time he gave his witness statement, he had ceased to be in the employ of the 1st Defendant. There was neither pressure nor reason for him to take side with the Defendants. He gave an account in his witness statement which is consistent with his evidence in court. He adhered to that account until towards the end of the cross-examination. I have watched his demeanour carefully. He obviously became confused after being repeatedly asked of the same question. He looked and probably felt sympathetic towards the Plaintiff and felt uneasy giving evidence against him in this unfortunate event. He was a simple and unsophisticated person. I find that the blemish in his evidence under cross-examination was due to confusion and not because he was concocting evidence. I find he was a truthful witness and accept what he said in chief and under re-examination.

8. On the other hand, I find the Plaintiff an unreliable witness. He was working in a large construction site. The 1st Defendant inspected the site every day and the site was under the regular supervision of a safety officer employed by the 2nd Defendant. I have no doubt that the Defendants would see to it that when excavation progressed to depth of about 3 metres, a platform would be erected. The use of a make-shift wooden ladder to access the bottom of the ditch from the platform makes good sense, from safety point of view and for operational reason so that the hoist for removing excavated material from the ditch could operate with minimum obstruction. There was no reason why the configuration of a platform and two ladders was not adopted. Though Law admitted in cross-examination that by reason of time and the fact that he had worked in many ditches, he could not recall whether there were two ladders in the ditch at the time, the fact that excavation had progressed to the depth of 4 metres made it more likely than not that the configuration of a platform and two ladders must have been adopted. The Plaintiff's evidence that there was only one ladder must be untrue. This is obviously not a case of an honest mistake on the part of the Plaintiff but his deliberate concoction in order to build his case that the ladder was of inadequate length or design as a result of which he had nothing to hold on when descending. I do not find him credible.

9. I also find the Plaintiff exaggerating about his physical condition after the accident. He said since the accident, he could not walk or stand continuously for more than 5 to 10 minutes and had to use an umbrella as a walking aid. He attended court throughout with his umbrella. He said he could not squat because of pain in his ankle. His evidence is apparently supported by the expert evidence of his doctor, Dr Chan Chi-king, a specialist in orthopaedics and traumatology. On 28 June 2001, Dr Chan Chi-king examined the Plaintiff as to the restriction of his right ankle movement. The Plaintiff demonstrated 5 degree dorsiflexion and 25 degree plantar flexion. Dr Chan Chi-king assessed him to have suffered 6% permanent impairment of the whole person and 10% loss of earning capacity.

10. On the contrary, according to the report of Dr Chan Sai Keung of Caritas Medical Centre, the Plaintiff was able to walk unaided on 24 September 1999, 21 months before the examination by Dr Chan Chi-king. Not only that, according to the senior physiotherapist of United Christian Hospital, his right ankle movement upon his discharge on 3 November 1999 was 25 degree dorsiflexion and 45 degree plantarflexion. Half a year later, upon his discharge from occupational therapeutic treatment on 24 May 2000, the occupational therapist reported as follows:

"On discharge on 24/5/2000, he could act against almost maximum resistance at right knee flexion and extension, and right ankle dorsiflexion and plantar flexion. Under tolerable pain and tenderness at around the lateral aspect of right ankle and heel, he could sustain squatting position for 2 minutes. He could sustain carrying 24 lbs objects for 60 feet." (My emphasis)

11. There could only be two explanations for the discrepancies between these reports and the findings of Dr Chan Chi-king. One is that the Plaintiff's condition deteriorated further since May 2000. The other is that the Plaintiff exaggerated his condition before Dr Chan Chi-king. According to the Plaintiff, his condition improved since discharge from all these treatments and he could stand and walk longer without pain. That excluded the innocent explanation, leaving his exaggeration as the only explanation for the discrepancy. When a person squats, his ankle performs a dorsiflexion. 25 degree dorsiflexion is consistent with his ability to squat. That together with 45 degree plantarflexion is consistent with his ability to walk normally. He may have some residual pain but may perform these activities under tolerable pain conditions. The occupational therapist's and the physiotherapist's findings are consistent. I find that the Plaintiff was exaggerating his physical condition when he demonstrated 5 degree dorsiflexion and 25 degree plantarflexion before Dr Chan Chi-king.

12. That a person exaggerates the extent of his injury in the hope of obtaining more compensation does not necessarily mean his evidence as to how the accident occurred should be rejected. But on the totality of the evidence, I find the Plaintiff unreliable and I reject his evidence on both issues. I find that the accident occurred in the way as described by Law. I find that the configuration of the ditch was of one platform and two ladders, that the ladder from the ground level to the platform was secured by rope to the H-shaped steel sheets protruding at least one foot above the ground level, that the Plaintiff descended the ladder with his back to the ladder and that he fell as he tried to turn his body around. I give no weight to the expert medical opinion of Dr Chan Chi-king as he had been misguided by the Plaintiff.

Negligence and breach of contractual duty to provide safe system of work

13. The central issue in this case is whether the 1st Defendant was in breach of his duty to provide a safe system of work including a ladder which is safe and suitable for the purpose. On the facts as I have found, the 1st Defendant adopted a configuration for the ditch which included a platform at a level of about 3 metres below ground. Access to the platform was by a 4 metre long aluminium ladder with round rungs. Allowing for the inclination, part of the ladder would protrude above ground level, which, according to Law, was about one foot. The ladder was secured by ropes to the H-shaped steel sheets driven into the ground. Access from the platform to the bottom of the ditch was by a wooden make-shift ladder with additional rungs to be added as the excavation progressed. According to the safety officer, whose expertise was not disputed, this was the correct configuration to be used for working at such depth. There is no evidence to suggest otherwise.

14. Mr Wong, counsel for the Plaintiff, criticised that the ladder was not fitted with handrail as suggested in the 2nd Defendant's safety handbook for a worker to hold onto as he was ascending or descending the ladder. He even suggested a movable staircase similar to the ones used by passengers when alighting from aeroplanes should be used so that a worker could descend or ascend with his face towards the direction he was moving. The Safety Officer has not seen such a ladder or staircase being used in construction sites, though he seemed to agree that the former could be used. I think reference to handrail in the handbook referred to handrails on working platform and passageway on which a person is exposed to the risk of falling from a height of more than two metres and not to a ladder. The fact that a ladder with a handrail has not been used does not mean that such a ladder should not be used. However, the ditch is a confined space. The use of such a ladder would be unnecessarily obstructive to other work processes to be performed in the ditch at the same time, for example, hoisting of excavated material from inside the ditch to the ground. The handrail could even be a potential hazard as tools carried on the body of a worker or attached to his belt may be caught by the handrail. As a result the worker would lose balance and fall. On balance, I do not consider a ladder without handrail as being unsafe. The use of a movable staircase inside the confines of a ditch is obviously impracticable.

15. The Plaintiff also complained that the rungs were round and slippery, especially as it was wet and covered with mud. I think it was likely that water and mud might have been left on the rung as the ditch was wet with underground water. There is nothing to suggest that round rungs were any less suitable than flat rungs because water and mud are less likely to accumulate on round surfaces than on flat surfaces.

16. On the facts as I have found, the ladder was well secured to the H-shaped steel sheets driven into the ground. The ladder protruded above ground by one foot which provided adequate hold for a worker descending the ladder. Assuming that there were water and mud on the rungs, it is impracticable for the employer to ensure that the rungs are cleaned and free from mud and water at any moment. One cannot lose sight of the reality of the conditions in a construction site. The standard of safety to be applied in a nursery cannot be applied to a construction site. Water, mud, building debris are the usual things to be found in a construction site. Those who work in a construction site must be aware of these obvious, usual and inherent dangers of working in a construction site. I am quite unable to find the effect of the absence of a handrail, the round rungs and the presence of mud and water on the rung, whether by itself or in combination, made the work system unsafe.

17. On the facts, I find that the Plaintiff fell because he descended the ladder in an inappropriate manner with his back to the ladder. I do not think it needs an expert to say that the proper manner to descend a ladder is to do so with one's body facing the ladder and with one's hands reaching forward and upward to hold the sides of the ladder. The centre of gravity of his person would be resting on the ladder. If one is to descend with his back to the ladder he could not have a firm hold of the side of the ladder. His centre of gravity would be away from the ladder and he is prone to fall. It is difficult to understand why the Plaintiff descended with his back to the ladder but that was the way he did for reason best known to himself. He realised it was inappropriate, or even unsafe. He tried to turn round while he was on the ladder, lost his balance as he manoeuvred and fell. That has nothing to do with the system of work provided by the 1st Defendant being unsafe or the ladder being unsuitable or that the 1st Defendant failed in his duty of ensuring the safety of the Plaintiff. In the circumstances, I am not satisfied that the Plaintiff has satisfactorily discharged the burden of proving negligence or breach of an employer's duty of care on the part of the 1st Defendant.

Breach of Regulations 38A, 38O and 38P of Construction Sites (Safety) Regulations

18. Regulation 38A, then in force, imposed a duty on an employer to provide practicable, suitable and adequate safe access to and egress from the worker's place of work and that the place of work is safe. In view of my finding above, there is nothing to suggest that the configuration of the ditch was unsafe, the use of the ladder inappropriate and the ladder unsuitable. I am not satisfied that there was a breach of this regulation by the 1st Defendant.

19. Regulation 38O, then in force, imposed a duty on the employer to ensure that a ladder was not used unless it was of good construction, or suitable and sound material and of adequate strength for the purpose for which it was used and that it was secured. The Plaintiff's case is that the ladder was not suitable as there was no handrail and the rungs were round and that it was not secured. I have rejected the Plaintiff's evidence that the ladder was not secured. I have considered the other issues in connection with the 1st Defendant's duty to provide a safe system of work and equipment. There is no substance in this complaint.

20. Regulation 38P imposed on the employer a duty to guard every edge or other dangerous place from which any person on the site was liable to fall a distance of more than 2 metres high with a suitable guardrail. The Plaintiff's evidence did not actually address this point. His complaint was not that he fell because there was no guardrail but because there was insufficient ladder for him to hold while descending. The guardrail is to prevent people from falling over the edge from height and not to prevent a worker from descending from height. Whether there was breach of this regulation or not is immaterial to the Plaintiff's case.

Breach of Section 6(1), 6(2)(a), 6(2)(d)(i) and 6(2)(d)(ii) of Occupational Safety and Health Ordinance

21. Section 6(1) imposes on an employer the common law duty of ensuring safety and health at work of his employees. Section 6(2)(a) specifically imposes a duty to provide or maintain plant and systems of work that are so far as reasonably practicable, safe and without risks to health. Section 6(2)(d)(i) and 6(2)(d)(ii) respectively impose a duty to maintain a safe work place and safe access to and egress from the workplace. These issues have been canvassed above and resolved in favour of the 1st Defendant.

Occupier's liability

22. There is no dispute on the parts of the 1st and 2nd Defendants that they were occupiers of the ditch and owed the common duty of care to the Plaintiff to take such care as in all the circumstances of the case was reasonable to see that the Plaintiff would be reasonably safe in using the ditch for the purposes for which he was invited or permitted by the Defendants to be there. This raises the same issue as to whether the 1st Defendant has breached his duty of ensuring a safe system of work, providing safe and suitable equipment and maintaining safe access to and egress from workplace. These issues have been canvassed above. For the same reasons, I am not satisfied that the Defendants were in breach of their common duty of care as occupiers owed to the Plaintiff.

Contributory negligence

23. The above is sufficient to dispose of the matters before me, but for the sake of completeness, and in the event of an appeal, I shall also consider the questions of contributory negligence and quantum of damages which I would have awarded if I had found any of the Defendants liable. If I am wrong to have come to the conclusion that the Defendants were not in breach of their duty, it could only be because I erred in finding that the 1st Defendant was not in breach of his duty by providing a ladder without handrail. In those circumstances, I would have found the Plaintiff equally to blame for descending the ladder with his back against the ladder and find him to be 50% contributory negligent.

Quantum - Pain suffering and loss of amenities

24. The Plaintiff was 58 years old at the time of the accident. He suffered a displaced intra-articular fracture of his right calcaneum. He had an operation by open reduction and internal fixation and was hospitalised for 18 days. He was given physiotherapy and occupational therapy treatment until 24 May 2000. He complained of weakness and had to walk with the aid of an umbrella. He could not walk for more than 15 minutes and could not squat. Dr Chan Chi-king assessed him to have suffered permanent impairment of the whole person of 6% and a loss of earning capacity of 10%. I have considered his evidence about his condition after the accident. For reasons which I have already explained, I reject his evidence. Though Dr Chan Chi-king's report was admitted as to truth of its contents, it is inconsistent with the reports of Dr Chan Sai Keung, the physiotherapist and occupational therapist which were also admitted as to truth of their contents. For reasons as I have explained, I find that Dr Chan Chi-king's opinion was based on exaggeration by the Plaintiff as to his condition. I give no weight to his opinion as expressed in his report.

25. I accept that the Plaintiff suffered residual pain. I find that the Plaintiff's right ankle movements are 25 degree dorsiflexion and 45 degree plantarflexion, which would permit a reasonable range of movement for a person's daily activity and work under tolerable pain conditions. I accept Dr Chan Sai Keung's report that the Plaintiff was able to walk unaided, subject to the qualification in the occupational therapist's report that he could squat for two minutes and sustain carrying objects of 24 pounds for 60 feet.

26. For pain, suffering and loss of amenities, Mr Wong suggested an award of $400,000 based on Siu Wai Man Ada v Lee Chi Chong [1999] HKLJ 159. The plaintiff in that case suffered a fracture of the left ankle resulting in 5% permanent impairment for whole person. Having rejected Dr Chan Chi-king's opinion, I consider Siu Wai Man Ada v Lee Chi Chong not a suitable comparable. I think the Plaintiff's condition is closer to the plaintiff in Chan Ming v Wayfine Investment Ltd [2001] HKEC 372, where the plaintiff suffered a fracture in his left ankle. He had similar treatment, but including bone grafting as well. He was able to walk unaided but experienced stiffness and pain after prolonged periods of walking or standing. He was awarded $200,000 for pain, suffering and loss of amenities. In Ng Wah Chun v Cheng Wing Chung and Others [2002] HKCFI 1101, the plaintiff suffered a fracture of the right calcaneum. His award was reduced from a starting point of $200,000 to $150,000 because of his failure to mitigate. In the circumstances, I consider an award to the Plaintiff in the amount of $200,000 appropriate for this head of damage.

Pre-trial loss of earnings

27. The Plaintiff earned on the average $22,500 per month at the time of the accident. He was in good health and intended to work to the age of 60 as a heavy duty construction worker and then continue to take on lighter duty work, for example as a light manual worker or a caretaker, for as long as one would hire him, say up to the age of 70.

28. The Plaintiff is certainly entitled to his full loss of earning for the period of his sick leave of 20.5 months, i.e. $461,250 ($22,500 x 20.5) Thereafter, he has a duty to mitigate his loss by taking up such employment as he was capable of. He said he could not work because of the pain. He said he did not look for work as no one would employ him. Later, he said he had tried looking for work by making enquiries with the management office of his building, but in vain. He was exaggerating. His condition is not such that he could not work under tolerable pain condition. He gave inconsistent answers under cross-examination. In my view, it was his choice not to work. Perhaps there was no incentive to as he could not return to his original work and working as a watchman or car park attendant would earn him less than the public assistance he was receiving since his daughters arrived from China. He would have been able to work as a security guard or car park attendant or in other similar employment and earn about $7,000 as per the list of Average Monthly Salary of Selected Occupations produced by the Hong Kong Government Census and Statistics Department. He was born on 1 January 1941. He intended to change to a lighter job upon reaching 60 which was half a month from the expiry of his sick leave. Accordingly, he can recover the difference between his income as a construction worker and that of a security guard, i.e. $8,500 (($22,500-$7,000) x 17/31). He suffered no loss of pre-trial earning after his 60th birthday as he could have worked as a security guard which was the type of work he intended to take up at that age had the accident not occurred but he chose not to. Thus his loss of pre-trial earnings is $469,750 ($461,250 +$8,500).

29. The Mandatory Provident Fund scheme ("MPF") did not come into force until 1 December 2000 and is calculated at 5% of monthly earning subject to a maximum of $1,000. I assess his pre-trial loss of MPF to be $933.06 ($22,500 x 14/31 x 5% + $8,500 x 5%).

30. The Plaintiff is three months short of age 63 at the time of trial. He has not provided any evidence that he would have secured a new job at this age or that it would have paid him anymore had it not been for the accident. He could have worked but he chose not to. I do not think he has proved he suffered any post-trial loss of earnings and MPF.

31. The Plaintiff is not in employment, has made no efforts towards becoming employed and has past the usual age of retirement. He has not provided any evidence of any prejudice which he has or might suffer in respect of his ankle, as opposed to his age in securing a new job, particularly a sedentary or light manual work which he allegedly intended to take up after 60. In the circumstances, I do not consider it appropriate to make an award for loss of earning capacity.

32. As for special damages, medical, travelling and tonic food expenses in the sum of $13,020 was agreed between the parties.

33. I allow him interest on general damages for pain, suffering and loss of amenities at the rate of 2% per annum from the date of the writ (27 March 2002) until trial. The interest is assessed to be $6,000 ($200,000 x 2% x 1.5). I assess his interest on pre-trial loss of earnings, MPF and special damages at half judgment rate from the date of the accident (29 March 1999) until trial to be $87,066.55 (($469,750.00 + $933.06 +$13,020.00) x 8% x 0.5 x 4.5).

Summary of assessment on quantum

34. In summary, my assessment on quantum would be $776,769.61 which is arrived at as follows:

(1) Pain, suffering and loss of amenity:	$200,000.00
(2) Pre-trial loss of earnings:	$469,750.00
(3) Pre-trial loss of MPF:	$933.06
(4) Loss of future earnings:	$0.00
(5) Special damages:	$13,020.00
(6) Interest for general damages:	$6,000.00
(7) Interest for special damages:	$87,066.55
Total:	$776,769.61
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35. After discounting for 50% contributory negligence and the award under the Employees' Compensation Claim of $440,778.93, the Plaintiff would not be entitled to any award in this action.

CONCLUSION

36. For the above reasons I find that no liability can be established against any of the Defendants and the Plaintiff's claim must be dismissed. The Plaintiff should be left to his remedy in a no fault liability claim under the Employees Compensation Ordinance, Cap 282. There is no need for me to consider the issue of contribution, indemnity or apportionment as between the Defendants. I make an order nisi that the Plaintiff shall pay the costs of the Defendants to be taxed, if not agreed. The Plaintiff's own costs shall be taxed in accordance with Legal Aid Regulations.