LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO LTD AND ANOTHER

HCPI 1099/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1099 OF 2006

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J U D G M E N T

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Introduction

1.  This is a claim for damages for personal injury by the Plaintiff who is aged 47.  He is a very experienced dismantler of bamboo scaffolding.  On 7 May 2003, he was in the employment of the 1^st Defendant which is a scaffolding contractor providing services for the erection and dismantling of scaffolding at building sites.  On this occasion, the 1^st Defendant was the scaffolding contractor at a building site at Tai Wo Hau, Kwai Chung (“the Site”) where Phase 7 of the redevelopment of the Kwai Chung Estate was taking place.

2.  The 2^nd Defendant was the principal contractor at the Site and as such responsible for the material and personnel hoists which were in use at the Site which comprised tower blocks of residential flats.

3.  In this case, I am concerned with the catch fence in the shape of a fan which had been built at first floor level at the base of the material hoist which, as its name suggests, was there to carry building material up and down the tower block as it was being built.  The hoist comprised a platform on which the material would be placed and transported to the required level of the tower block.  No person was allowed to enter this hoist.  It was restricted solely for the movement of materials.  There was a separate hoist, with which I am not concerned, for the movement of workmen.

4.  The bottom photograph at page 273 shows the material hoist, running the full height of the tower block, which is enclosed by netting whose purpose is to prevent material carried on the platform from falling out and onto the ground below.  The catch fence built at the base of the hoist seen at pages 274 and 275 is there as a second line of defence in case something got through the netting.  If that were to happen it would fall onto the catch fence and not onto the ground below where it might fall onto passers-by.

The Plaintiff’s Duties on 7 May

5.  The Plaintiff and his colleague were told by their foreman to go to the building site in order to dismantle the catch fences at the foot of the material hoists at Blocks 4 and 5.  That morning they had been engaged in dismantling scaffolding at Cheung Sha Wan and after they completed that job, at about noon, they made their way to the Site getting there at about 1 p.m.  Their foreman, Mr Yeung Wing Chuen, who had given them their instructions, was not there but they were able to find the Site foreman who told them where to go.

6.  It is convenient to observe at this stage that the occupation of a bamboo scaffolder is a specialised one and also a dangerous one requiring scaffolders to work at great height exposed to the elements on the outside of buildings.  In a moment, I will need to make reference to the detailed statutory regulations that govern the training of scaffolders and the methods that need to be employed both in the erection and the dismantling of scaffolds.  For present purposes, it is sufficient to note that scaffolders specialise in either erection or dismantling.  Erectors are considered the more skilled because this requires more expertise than dismantling.  The Plaintiff, as I have already said, was a dismantler as was his colleague Mr  Lee.  What I propose to do is to first recite their version of what they did before considering the relevant regulations which ought to have been complied with.  I will then need to refer to the cross-examination of both the Plaintiff and Mr Lee which is highly relevant having regard to the fact that their versions are not consistent with the accounts that they gave to the insurance company’s loss adjusters nor to the investigator from the Labour Department.  It will also be necessary to recite parts of the evidence of the witnesses from the Defendants who whilst they cannot give direct evidence of how the Plaintiff came to be injured are able to provide some relevant evidence as to the surrounding circumstances.

7.  Although the Plaintiff has no formal training as a scaffolder, in the sense of having undergone an industrial training course, he is someone of very great experience.  He has been a scaffolder for over 20 years learning from his Master as he went along.  His has been on the job training, watching and doing what his Master told him.  Mr Lee who was with him is also experienced, although less so.  He has been doing this work for about 7 years.

8.  They completed the dismantling of the catch fence at Block 4 without mishap.  This took about an hour or so.  They then proceeded to Block 5 where two things were out of the ordinary.  Firstly, they found a lot of cable trough covers on the ground in front of the entrance to the material hoist which needed to be removed by workmen who were present nearby to enable them to get access to the area below the catch fence.  Much more significantly, they discovered that the catch fence itself was drooping down, to use the expression adopted in the trial.  This is well reflected in the top photograph at page 275 as it is at page 274.  A well constructive and maintained catch fence should be level and parallel to the ground.  According to the Plaintiff and Mr Lee, this one titled as shown in the photographs.  I should say now that the Defendants do not accept this.  It is submitted on their behalf that the droop as shown in the photographs is the result of the Plaintiff and Mr Lee’s work on the fan, prior to the accident, where they had already cut some of the ties that held the bamboo poles together, which resulted in it drooping.  This is a matter that I will need to resolve in due course.

9.  It is accepted by the Plaintiff and Mr Lee that if a scaffold that is to be dismantled is in disrepair and not as it should be, then any defects should be corrected before the dismantling process begins.  If that is right then in this case the droop should have been corrected so that the fan would have been made level and parallel to the ground before the dismantling process was embarked on.  The Plaintiff and Mr Lee also accepted that the way to dismantle a fan is for the scaffolders to get onto the fan and cut away the ties that bind the outer poles first so that the scaffolders will be working inwards towards the building itself to where the fan was finally secured on to the material hoist and also attached to the building itself to upright bamboo poles that had been bolted to the building and by ropes tied onto the building.  This is shown in the photographs at pages 274 and 275.

10.  Having dismantled the fan inwards it has been suggested to the Plaintiff that the remaining poles could be cut away remotely by attaching a knife to a bamboo pole, as shown in the photograph Exhibit D4, and either reaching up and cutting the remaining ties or perhaps from above by reaching out from the adjacent windows with the knife attached to the bamboo pole and cutting the remaining ties, although it is accepted that this method may have fallen foul of regulations that required workmen working at height to be strapped to life lines and/or stand behind safety fences.

11.  Although the case has largely been contested by the Defendants on the basis that I have just described, Mr Lim, who appears for them, has also submitted that they should have adopted what would have been the safest option of all which was to use a mobile working platform placed underneath the fan from where both the Plaintiff and Mr Lee could have reached up and cut the ties and then eased the bamboo poles down to the ground.

12.  In fact what happened, according to the Plaintiff and Mr Lee, is that on finding the fan to be drooping they could not safely get onto it and cut the ties working inwards from the outside.  The Plaintiff decided that in such circumstances his best option was for him to get into the material hoist and from there to cut the inner-most ties that bound the fan to the structure of the hoist itself.  The Plaintiff says that he assumed that the material hoist was not in use.  Nobody was about and the hoist operator was nowhere to be seen.  What he did was to use a wooden plank to jam the hoist door open at ground level.  This had the effect of disabling the hoist.  He then got into the frame and using its sides climbed about 18 feet to the level where the fan was attached to the hoist frame from where he could then proceed to cut the ties.  In the meantime, Mr Lee had walked up to the first floor and gone into one of the flats from where he could look out onto the fan from one of the windows that adjoined the fan in order to see where and how he could cut the guide ropes.

13.  Their plan in these circumstances was to cut the fan away from the hoist frame and by cutting away the guide ropes and ties at the sides, they would then lower the fan to the ground as an entire structure.  Once on the ground they would then take it apart.  By adopting this procedure, they would complete their task quickly and they thought safely.  They had already, according to them, cordoned off the area below the fan by using pedestrian barriers which are also visible at pages 274 and 276.

14.  What they had not counted on was the arrival, shortly after the Plaintiff had climbed to the 1^st floor level of the hoist frame, of Mr Lau the hoist operator.  He says that he returned having obtained the keys from the chief mechanic.  His evidence is that the door to the hoist was shut and so to this very important extent he contradicts the Plaintiff.  He then entered the hoist operating room and as required he pressed the button to send the platform to a higher floor.  There was no indication that anybody was in the hoist frame and in any event there was an express prohibition that no person should enter the hoist.  None the wiser as to the Plaintiff’s presence he sent the platform on its upward journey.  The Plaintiff heard the platform coming and he shouted out to have it stopped but to no avail.  It struck him and carried him up with it for a short distance.  Fortunately his screams of pain were heard by Mr Lee and by Mr Lau who was able to shut the system down immediately but not before the Plaintiff had sustained a serious injury to his right knee, the particulars of which I will fully describe when I come to the issue of the appropriate quantum of damages.  Suffice it to relate that an ambulance was called and the Plaintiff was removed to hospital.

The Regulations

15.  I have already referred to the expertise required of a scaffolder and of the attendant risks of this occupation.  Unsurprisingly therefore, this is an activity that is strictly regulated and the Occupational Safety and Health Branch of the Labour Department has devised a “Code of Practice for Bamboo Scaffolding Safety”.  The relevant edition is dated March 2001.  It has been issued by the Commissioner for Labour under S.7A of the Factories and Industrial Undertakings Ordinance (Cap.59) providing practical guidance for the compliance of the requirements set out in Sections 6A and 6B of the Factories and Industrial Undertakings Ordinance and the requirements of the Construction Sites (Safety) Regulations.  So much appears from the Introduction to the Code [page 144].

16.  Mr Robert Pang, for the Plaintiff, has made specific reference to a number of paragraphs of the Code of Practice.  Paragraph 4.3 [page 157] includes a requirement for the preparation and use of a detailed method statement as to how a scaffold is to be erected or dismantled, as may be the case.  As expected the extent and detail of such a statement:

“	… will depend on the size and/or complexity of the work, with a single job requiring a simple method statement and repetitive tasks being covered by standard sheets.”

I am satisfied that this particular task would fall to be described as a “simple job”.  Nevertheless, there was a complete absence of any sort of method statement, even a “standard sheet”.  4.3.2(h) [page 159] says that documents such as:

“	the method statement … should be made available to all parties concerned in good time.”

Regulation 6.2 which deals with dismantling of bamboo scaffolding [page 172] requires that this work should be done by trained workmen under the immediate supervision of a “competent person”.  6.2.3 requires that the scaffold to be dismantled should be checked for its strength and stability beforehand.  6.2.8 says that if the scaffold is defective it should be made good before dismantling commences.  6.2.7 requires the dismantling sequence to be planned and that the sequence of dismantling should be logical and determined with due consideration for the scaffolders safety.

17.  A “competent person” referred to inter alia in 6.2 (supra.) is defined in 2.3 as somebody of substantial training and practical experience.  2.3.2 indicates that such a person is one:

“		(i)	who has satisfactorily completed a formal training in bamboo scaffolding work such as the 3-year Bamboo Scaffolder Apprenticeship Scheme (under the Apprenticeship Ordinance, Cap.47) operated by the Vocational Training Council or the 1-year full-time training course in Bamboo Scaffolding of the Construction Industry Training Authority (CITA), or other similar bamboo scaffolding training courses/programmes, or has satisfactorily passed the Trade Test on Bamboo Scaffolding of the CITA;
		(ii)	who has possessed an experience of 10 years or more in bamboo scaffolding work (inclusive of experience under the formal training period); and
		(iii)	who has the ability to read and understand the scaffolding plan, design drawings, specifications and method statement of the scaffolding work in order to competently supervise the scaffolding work and certify that the scaffolding is in safe working order.  He should also be capable of identifying existing and predictable hazards in the surroundings or working conditions that are unsanitary or hazardous to employees.
	(b)	A competent person should be appointed in writing and should have authorisation to take prompt corrective measures to eliminate existing and predictable hazards mentioned above.”

18.  It is accepted that no such person was present.  It is also worth observing that 2.4 refers to a trained workman who is defined as follows:

“

A trained workman in respect of bamboo scaffolding refers to a scaffolder who is responsible for on-site erection, addition, alteration and dismantling of bamboo scaffold under the immediate supervision of a competent person, and has satisfactorily completed a formal training in bamboo scaffolding work equivalent to any of those mentioned for a competent person and possessed at least 3 years of experience in bamboo scaffolding work (inclusive of experience under the formal training period).”

It strikes me that neither the Plaintiff nor Mr Lee conform to this definition because neither had undertaken the formal training courses referred to in 2.3.2 supra.  Both had learned their trade under their Master.  Be that as it may this aspect has not been put in issue and so I propose to ignore it.

19.  The parts of the Code of Practice to which I have made reference clearly demonstrate the seriousness that is attached to the safety aspects of this occupation and the work associated with it.  In addition to which the Defendants also face pleas that they failed to provide and maintain a safe system of work as well as a failure to provide adequate and suitable plant, equipment and assistance to ensure that the Plaintiff could carry out his work safely.

20.  Notwithstanding this clear failure by the Defendants to provide a competent person to oversee these operations nor a method plan of any sort the Defendants’ attitude to the allegations of negligence and statutory breaches is best reflected in the evidence of Mr Yeung, the 1^st Defendant’s foreman, who instructed the Plaintiff and Mr Lee to carry out this work.  His evidence, and I paraphrase it, is that both of these workmen were highly experienced in this type of work, they had done it time and again and they could very safely be left to their own devices.  That attitude is not one which is to be approved of as the authorities to which I will presently make reference amply demonstrate.

The Plaintiff’s and Mr Lee’s Cross-examination

21.  There is a factual dispute between the parties, really, as to two issues to which Mr Lim’s cross-examination has been directed and to which I need to refer.  The first and perhaps least important is whether the fan was in a state of ‘droop’ when they came to dismantle it and so preventing them from getting onto it in order to dismantle it from the outside inwards.  It has been put that the drooping had been caused by the preliminary cutting of the ties by the Plaintiff and Mr Lee.  Following the accident they have both had access to the photographs showing the drooping fan and it has been put to them by Mr Lim that they have decided to say that this was the state of the fan when they came to it so as to provide some justification for the plaintiff going into the hoist frame to cut the fan down.  In this regard, Mr Lim has referred to interviews of the Plaintiff and of Mr Lee by the loss of adjuster and of Mr Lee by the Labour Department officer.

22.  The Plaintiff’s interview with the loss adjuster starts at page 258a.  There is no mention there of the fan drooping down.  Mr Lee’s interview is at p.261a.  This statement also has no reference to the drooping fan.  Mr Lee was also interviewed by the Labour Department.  The Plaintiff was not.  Mr Lee’s statement is at page 249a.  There is no reference there to this state of the fan.  These statements were given in 2003 and 2004.  It is not until early 2007 when the witness statements were prepared for trial that reference is made to the state of disrepair of the fan [page 91] which prompted the Plaintiff to decide not to dismantle in the conventional way but to climb into the hoist frame and to cut it down as an integral piece and to do the dismantling once it was on the ground.  Mr Lee’s witness statement is to the same effect.

23.  The other much more important issue concerns the question of whether the door to the hoist had been jammed open by the Plaintiff using a plank or batten.  Mr Lim points to the absence of any reference to this in any of the statements, including the witness statements.  The first reference came in the course of the Plaintiff’s examination in chief.  Mr Lim’s point is that this aspect is the main aspect of the Plaintiff’s case and yet he never told the loss adjuster, nor apparently his solicitors when they came to draft his statement.  This, says Mr Lim, must be a recent invention on the part of the Plaintiff.

Findings of Fact

24.  It is convenient of this stage to indicate my view of what occurred.  As to whether the fan was drooping or not, it seems to me that this does not really matter because it is quite plain that the Plaintiff and Mr Lee had decided that whatever the state of the fan they would cut it down to the ground in one piece by the Plaintiff climbing into the hoist in order to do so.  It strikes me that, if anything, the fan was on a balance of probabilities, drooping and the absence of any mention of this to the loss adjuster and to the Labour Department official (by Mr Lee) is not significant because the state of the fan was never a real consideration for either of them hence the failure to refer to it.  Whatever its state they were going to cut it down in one piece from inside the hoist.

25.  What is much more significant is whether the hoist door had been jammed open by the Plaintiff.  Mr Pang has done his best to try and demonstrate from the interviews that by necessary implication the Plaintiff and Mr Lee were saying that the door was open.  He also rightly points to the fact that the Plaintiff is a simple and inarticulate man.  Despite Mr Pang’s excellent efforts to the contrary, it seems to me that one needs to be hard-headed and realistic on this issue.  What the Plaintiff is now saying, for the first time, he never mentioned this to his solicitors, is that he had jammed the door open to disable the hoist and to provide a warning to anybody wishing to operate it that someone was inside.  It is inconceivable that if he really had jammed the door open that he would not have wished to have made this absolutely clear to the loss adjuster and certainly to his solicitors.  This is after all his main point.  It simply will not do for Mr Pang to try by nuance and implication to suggest that in a very oblique way this is what the Plaintiff was saying to the loss adjuster as was Mr Lee.

26.  I find as a fact that the Plaintiff had not jammed the door open.  What happened, when one looks at the record of interviews as a whole is that once they got there these two gentlemen watched the workmen remove the trough covers and seeing no one about assumed that the hoist lift would not be used for the short period that the Plaintiff expected to be inside the hoist frame.  I accept Mr Lau Kam Cheung’s evidence, he being the hoist lift operator who started it, that the door was not open.  I appreciate that he has an interest to serve in this matter in order to protect himself from the suggestion that he shut the open door without ensuring that anybody was in the hoist frame, but when one considers the evidence as a whole I am convinced that the Plaintiff had not jammed the door open.

27.  From these findings of fact, I need to briefly consider the remaining evidence called by the Defendants.  It is clear from the 2^nd Defendant’s Safety Officer, Mr Lau Ka Wai that, save for basic safety training, no specialized scaffolding training had been provided by the 2^nd Defendant to the Plaintiff nor to workmen like him.  Mr Yeung, the foreman’s evidence reveals a particularly laisse faire attitude.  The Plaintiff was very experienced — he could safely be left to his own devices.

28.  This evidence, in addition to the absence of a method plan and a competent person who would undoubtedly have prohibited the Plaintiff from entering the hoist frame to do this job serve to completely undermine the Defendant’s cases on liability.

29.  Mr Pang rightly draws attention to the case of General Cleaning Contractors Ltd v Christimas [1953] AC 180.  Lord Oaksey’s speech at pages 189-190 is entirely apposite:

“

In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen.  It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.  Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves.  Workmen are not in the position of employers.  Their duties are not performed in the calm atmosphere of a board room with the advice of experts.  They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.”

Lord Reid’s speech 193-194 is to the same effect and bears repetition here:

“

The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out.  On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions.  That may be so but, in my opinion, it is not a sufficient answer.  Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it.  Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions.  It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing.  No doubt he cannot be certain that his men will do as they are told when they are working alone.  But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.  In this case the appellants do not appear to have done anything as they thought they were entitled to leave the taking of precautions to the discretion of each of their men.  In this I think that they were in fault, and I think that this accident need not have happened if the appellants had done as I hold they ought to have done.  I therefore agree that the appeal should be dismissed. ”

30.  It seems to me that these considerations are entirely applicable to the facts of this case and they apply to both Defendants. The fact is that no system of work had been laid out for these two men, let alone anything that approached a safe one.  Given his vast experience the Plaintiff had, it seems to me, developed this system whereby he would get into the hoist frame and, relatively speaking, quickly snip the fan off in one piece from the hoist frame.  The dismantling would then be done on the ground.  It was quick.  Unfortunately, it also produced a set of circumstances that resulted in an accident waiting to happen which is what occurred on this occasion.  Had the 1^st Defendant and the 2^nd Defendant, as the principal contractor, seen to it that the Code of Practice was adhered to this would not have happened.  A method would have been devised to dismantle the fan by cutting the ties from outside the hoist by use of a working platform, as was eventually done after the accident, in combination perhaps with a knife attached to a bamboo pole to reach up where necessary.  The process would undoubtedly have been a longer one but it would have been a safe one.  I find both Defendants liable in the ways pleaded against them in the Statement of Claim.  This being the case, I now need to decide whether the Plaintiff ought to suffer a reduction in his damages by virtue of any negligence on his part in going into the hoist frame.

Contributory Negligence

31.  The law in this regard is succinctly set out in the current edition of Charlesworth at 3-28:

“	Share in the responsibility for the damage.  The claimant’s share in responsibility for the damage is approached by way of an overall appreciation of his blameworthiness, taken with the causative potency of whatever it is he did.
	‘	Whilst causation is the decisive factor is determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation.  The amount of the reduction … involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.’
	In Stapley v Gypsum Mines Ltd, Lord Reid said:
	‘	A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but ‘the claimant’s share in the responsibility for the damage’ cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his balmeworthiness.”

32.  The factual basis for this relates to the Plaintiff having entered the hoist frame without jamming the door open and having put up a warning sign to the effect that work was in progress in the hoist frame.  The Plaintiff and Mr Lee say that they had cordoned off the area with a couple of pedestrian barriers but in my judgment that was wholly insufficient.  It strikes me that in approaching the issue “by way of an overall appreciation of [the Plaintiff’s] blameworthiness, taken with the causative potency of whatever he did” that he must bear half the blame for what happened to him.  There must therefore be a 50% discount for contributory negligence.  It really was asking for trouble to do what he did notwithstanding the Defendants’ failure to provide any safe system of work.  I am afraid that the Plaintiff must have realised the risk that he was running and despite it all decided to take it simply because this was the quick way of doing things.

Quantum

33.  I now turn to the assessment of his damages.  There is a joint medical report dated 28 October 2006 [page 121] from Dr H K Lau for the Plaintiff and Dr Richard Lau for the Defendants.  The main injury was an osteochondal fracture of the right knee.  This was treated conservatively by daily cleaning of the wound.  He was admitted to hospital on 7 May and discharged on 12 May 2003.  He was readmitted on 19 May for debridement of the wound and discharged on 22 May.  On 2 June he was readmitted when an arthroscopy was performed and loose osteochondal fragments were removed.  He was discharged on 5 June after which he was referred for physiotherapy.  The Medical Assessment Board held on 22 July 2004 assessed a 3% loss of earning capacity which was revised to 4% on review on 11 November 2004.

34.  His complaints on examination in October 2006 were that his right knee was painful when descending stairs, squatting and when attempting to run for a short distance, for example when hurrying across a pedestrian crossing.  The right knee will ache after walking for 15 minutes.  The knee does not hurt when at rest.  There was also numbness radiating down his left forearm and hand and fingers.  The symptom was persistent but decreases with exercise.

35.  On examination the doctors found that the Plaintiff could walk normally without the need for a stick.  He could not squat fully.  He could walk on tiptoe but not on his heels.  He could not stand in a stable manner on his right leg alone.  Dr H K Lau considered that the significant muscle wasting over the right thigh was good objective evidence supporting the complaint of severe residual pain in the right knee.  Both doctors agreed that the Plaintiff had now achieved maximal recovery and no further medical intervention could assist him.

36.  Dr W K Lau felt that there was a risk of increased pain and stiffness of the right knee.  He therefore needed to avoid heavy manual lifting, prolonged squatting, frequent climbing of stairs, slopes and ladders.  Dr Richard Lau was far more optimistic about the future but Dr H K Lau felt another operation may be needed in due course.  Dr H K Lau felt that he was only fit for relatively sedentary jobs such as a car park attendant, petrol station worker or toilet attendant.  Dr Richard Lau added security guard, salesperson or messenger to that list.  Sick leave from 7 May 2003 to 19 May 2004 was considered reasonable by both of them.

37.  The Defendants’ insurers had the Plaintiff placed under filmed surveillance later in October and November 2006.  This bore helpful results.  The filming has showed that the Plaintiff could walk very well subject to perhaps the merest limp.  It is barely noticeable.  Nevertheless, what he could do was to squat fully for five minutes, apparently perfectly comfortably and to be able to rise from a full squat only using the power from both legs.  He did not need to push up or balance himself with his hands.

38.  He was seen eating in a restaurant, standing at a bus stop looking at a newspaper and the general impression was one of contentment.  He was also seen going into a building site — more of which presently.

39.  The two Drs Lau were shown the film.  Both agreed that the Plaintiff had exaggerated his disability to them.  Dr Richard Lau now felt able to say that the Plaintiff could in fact return to scaffolding work but Dr H K Lau said that this would be too physically demanding although he conceded that the Plaintiff could do more active work.  He was able to work as a security guard, salesperson, waiter or messenger.

Is the Plaintiff Completely Illiterate?

40.  The Plaintiff, who originates from Mainland China, says that he received no education and cannot read.  The film shows him apparently reading a newspaper just like everybody else.  He says he was only reading the racing form by referring to the horses by their number.  I cannot accept that.  It is simply not possible to study form by referring to numbers only.  One needs to be able to read the name of horse.  Mr Pang says that he could getter that information by listening to radio and watching television programmes.  I do not think that this is how the Plaintiff gets his information.  Looking at him ‘read’ the newspaper on film, it seems to me that he must at least be able to read sufficiently well to inform himself of the horses names, jockey, and other basic information beyond just reading numbers.  I find that he has exaggerated his inability to read.

What Jobs Can the Plaintiff Do?

41.  Even on the evidence of the film, I do not believe that the Plaintiff could safely return to scaffolding.  This is physically demanding and dangerous work.  The job that he was doing when he was injured was dismantling at its most basic and as close as one could get to ground level.  Much of this work is done at great height.  With a less than perfect knee, it is demanding too much of the Plaintiff to say that he could return to his pre-accident employment.  I appreciate that he was seen entering a building site on an isolated occasion and although his explanation of collecting back wages that pre-dated the accident is very suspicious, I am unable to say that he can work on building sites on what is a paucity of evidence.  Had he been followed for more days and seen entering building sites repeatedly then that might have suggested a different conclusion.

42.  I have been shown a Government generated list of jobs and pay.  I would have thought that these days the Plaintiff, who can more probably than not, read to a basic level could work as a waiter, delivery man or general worker and on the statistical evidence command a salary of, doing my best, $7,500 a month which will be the basis of my assessment.

Pain, Suffering and Loss of Amenity

43.  Mr Lim suggests this should attract an award of $180,000.  Mr Pang says it is in the order of $300,000.  In my view, this is not a particularly disabling injury on a day-to-day basis.  As I here already said the overall impression gained from the film is one of contentment and of a man getting on with life.  I am not convinced that he will need further surgery in the future.  The proper award under this head is $220,000.

Loss of Earnings

44.  I must first determine his pre-accident earnings.  He says it was $22,000 a month although originally claimed at $17,000.  The average from the 1^st Defendant for the previous 12 months was $10,363.  The Plaintiff’s case is not at all well documented but it would be doing him an injustice to restrict him to the documentary evidence.  I accept that he worked for other companies when the 1^st defendant did not have work for him.  The daily pay for a scaffolder like him is $1,000.  This I accept.  I am afraid I must do my best on sparse evidence.  I accept that some employers will keep better records than others.  I propose, doing my best, to assess his average pre-accident earnings at $16,000 a month and this figure will also form the basis of my assessment.

Loss of Earnings During Sick Leave

45.  The Medical Assessment Board in July 2004 extended his sick leave to 9 July 2004 that is to say for 14 months.  I accept this as correct, so loss of earnings during this period will be $16,000 x 14 months which comes to $224,000.

Loss of Earnings from Expiry of Sick Leave

46.  This will be $16,000 less $7,500 which comes to $8,500.  This amount will run for 38 months from 9 July 2004 to the date of trial.  The amount will be $8,500 x 38 months which comes to $323,000.  To these two amounts I need to add the loss of employer’s contribution for MPF at 5%.  The calculation is as follows: ($224,000 + $323,000) x 5% = $27,350.

Future Loss of Earnings

47.  The multiplicand will be $8,500.  Mr Lim’s multiplier of 6.5 years is correct given that the Plaintiff is now 47 and would have retired as a scaffolder at 56.  The resulting total is $663,000 being $8,500 x 12 months x 6.5 years.  To this I propose to add 5% for the employer’s MPF contribution which is $33,150.  The total for future loss of earnings will therefore be $696,150.

Loss of Earning Capacity

48.  I have fully compensated him for future loss of earnings and where I am content to say that he will not struggle in his alternative future employments, I propose a modest amount of $30,000.

Tonic Food and Medical Expenses

49.  These are agreed at a total of $15,000.

Totals
(i)	PSLA	$220,000
(ii)	Loss of earnings during sick leave	$224,000
(iii)	Loss of earnings from expiry of sick leave to trial	$323,000
(iv)	MPF at 5% on (ii) and (iii) above	$27,350
(v)	Future loss of earnings	$663,000
(vi)	MPF on (v)	$33,150
(vii)	Loss of earning capacity	$30,000
(viii)	Tonic food and medicals	$15,000
	Total	$1,535,500
	Less EC award	$177,080
	Total	$1,358,420
	Less 50% for contributory negligence	$679,210
Interest
(i)	2% on general damages from writ to judgment.
(ii)	½ judgment rate from date of accident to date of judgment on special damages and accrued loss of earnings.

Costs

50.  There will be an order nisi that costs will be to the Plaintiff on the District Court Scale together with legal aid taxation of his costs.