LIN CHI LAMv. IP’S ENGINEERING CO LTD AND ANOTHER

HCPI 446/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 446 OF 2005

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J U D G M E N T

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I.     INTRODUCTION

1.  Ip’s Engineering Co. Ltd. (IECL) was a sub-contractor responsible for drainage work at a construction site in Tin Shui Wai.  IECL employed Mr. Lin Chi Lam as a casual worker at the site.  Chun Wo was the project’s principal contractor. 

2.  The site comprised 10 blocks.  While pushing a wheelbarrow on a muddy path from Block 10 to Block 7 of the site, Mr. Lin fell.  He says that this was because the wheelbarow “stumbled” over one of a set of wooden planks laid out as flooring for part of the path.

3.  In falling, Mr. Lin hit his left knee on an unused pipe lying to the side of the path.  The result of the injury (Mr. Lin says) is that he cannot resume his previous work as a construction site worker.

4.  Mr. Lin claims that the Defendants were negligent in failing to implement a safe system of work that might have prevented his accident.  He seeks damages of $801,855.40 (after giving credit for employees compensation of $190,000).

II.    BACKGROUND

5.  In the afternoon of 29 June 2002 Mr. Lin was working with Mr. Lam Yam Kan (a drainage master) at a manhole near Block 7.  Mr. Lam was attending to the concrete work around the manhole.  Mr. Lim was transporting concrete from a mixing truck parked near Block 10 to Mr. Lam at the manhole.  Mr. Lin used a wheelbarrow to carry the concrete.

6.  Mr. Lam needed 3 barrow loads of concrete to complete his work at the manhole.  Mr. Lin had already transported 2 loads.  He was conveying a third along the path from the mixing truck when his accident happened.  According to Mr. Lin, each barrow load weighed approximately 200 catties (about 100 kilos).

7.  Block 7 was around 50 to 60 metres away from Block 10.  The mixing truck at Block 10 was parked at the end of a paved drive running from the entrance of the site.  But from the end of the drive to the manhole there was only a dirt path which was about 50 cm wide.  The path sloped down towards the manhole at which Mr. Lam worked.

8.  The path was bounded on either side by mounds of soil which were about 10 cm high.  The ground on top of those mounds was strewn with waste material and miscellaneous objects.

9.  Through constant use, the soil at the end of the path closest to the drive was closely packed.  In contrast, being at a lower level, the other end of the path was apt to become muddy from rain and frequent flooding.  To provide greater traction and facilitate the pushing of wheelbarrows along that far end of the path, a set of 2 to 3 wooden planks had been placed.  Each plank was about 180 cm long and 0.60 cm thick.

10.  On the day of the accident, the planks were covered with mud and the ground underneath them was soft from rain.

11.  Mr. Lin proceeded carefully as he was pushing the third load of concrete to Mr. Lam at the manhole.  He was wearing safety shoes.  He was aware that the ground along the path could be rugged and uneven.  He knew that there were planks at the lower end of the path.  It could not have escaped his attention that the path was muddy.

12.  It is not clear precisely how Mr. Lin’s accident happened. Mr. Lm gave evidence that he was watching Mr. Lin approaching the manhole.  Unfortunately, all that Mr. Lam can say was that he saw Mr. Lin “fall down”.

13.  Mr. Lin described the accident in his witness statements as occurring because the wheelbarrow “stumbled over” a plank.  He suggested in re-examination that the planks were slippery from the mud and that he himself may have slipped.  But it is far from clear from his evidence if he “slipped” because the wheelbarrow “stumbled” or if he “slipped” independently of any “stumbling” by the wheelbarrow.

14.  In all probability, the wheel of Mr. Lin’s barrow “stumbled” over the edge of a wooden plank.  It may have been that, due to underlying softer soil, a wooden plank had sunk slightly lower into the ground than the plank placed immediately after it. Thus, in moving from the slightly lower to the higher plank, the barrow may have failed to mount smoothly over the edge of the higher plank.  The barrow’s wheel may have run against the edge of the higher plank causing the barrow to jolt and become unbalanced.

15.  Mr. Lin, most probably caught off-guard by the sudden jolt, did not let go of the barrow in time and fell to the left with it.  In falling Mr.Lin hurt his knee on an unused pipe lying on the mound bordering the left side of the path.

16.  Mr. Lin referred in oral evidence to the wheel of the barrow becoming caught in the gap between planks.  But it is difficult to see how this could have been the case.  According to Mr. Lin, the gap between planks was only some 2 to 3 cm (one inch).  The wheel of a barrow would have been significantly larger than such a gap and should normally have progressed smoothly over the gap.  I am therefore not persuaded that the mere presence of a gap caused the accident.

II.    DISCUSSION

A.    Liability

17.  Between them, IECL and Chun Wo controlled the site area.  Mr. Lawrence Ng (appearing for Lin) suggests that they were negligent in not rendering the path sufficiently safe for the passage of a wheelbarrow carrying heavy concrete.

18.  In his opening, Mr. Ng submitted that the wooden planks ought not to have been placed on the path at all.  The planks only served as obstructions (Mr. Ng contended) for someone pushing a wheelbarrow.  The path was accordingly not a safe one.

19.  I am unable to agree. 

20.  As Mr. Lin himself pointed out in his statement, the planks were there to facilitate the passage of a wheelbarrow over ground that (left to itself) would periodically become muddy and slippery from flooding.  The wooden planks would give added traction to the barrow’s wheel as it was moving across the latter half of the path.  Consequently, far from being an unwarranted obstruction, the planks actually made the path safer.

21.  In his closing submissions, Mr. Ng changed his case.  The path (he contended) was unsafe because of a combination of the following circumstances:-

(1)     There were gaps between the planks.

(2)     The ground underlying the planks was soft.

(3)     The planks were muddy and slippery.

22.  Despite the foregoing conditions, workers (Mr. Ng points out) were expected to carry a barrow load of 200 catties over the path.  In tolerating such system of work, the Defendants (Mr. Ng contends) were unreasonable and negligent.  Mr. Ng accepts that a barrow load of 200 catties is not dangerous in itself.  But he asks that the Court look at the circumstances as a whole. 

23.  Again I am unable to agree.

24.  It would have been far more dangerous if a single long plank had been used, instead of several shorter lengths of board with gaps in-between.  The ground beneath the planks was prone to become soft from rain to differing degrees.  The greater the number of planks laid over the muddy soil, the better the chance of the planks hugging the contours of the path as the ground beneath settled or subsided.

25.  In contrast, a long plank would not readily flex with the uneven contours of muddy land.  Parts of the long plank could end up unsupported by ground (whether hard or soft) underneath.  Running a barrow and its load over such unsupported parts may lead the long plank to snap at some point with possibly disastrous effect.

26.  Thus, far from being an undesirable element of the path, the gaps between planks were more likely a safety feature.

27.  It is true that the underlying ground was soft from heavy rain.  But this is a fact of life in construction sites.  The laying out of planks was a simple, effective measure to counteract this softness.

28.  A corollary to the ground being soft from rain is that mud would be omnipresent, even on the planks.  This would be unavoidable on a project site.  If anything, mud on a wooden surface of a plank would probably be less slippery (that is, be capable of generating greater friction) than a surface of mere mud.  The presence of the wooden boards would help to combat slip, rather than contribute to it.

29.  Apart from criticising the use of planks, Mr. Ng could not suggest any other system which the Defendants ought to have implemented to make the path safer.  Since I have rejected Mr. Ng’s contentions on the planks, it follows in my view that the Defendants were not negligent.

B.    Quantum

30.  My conclusion in Section III.A of this Judgment is sufficient to dispose of this case.  In this section, I will assume that I am wrong in my conclusion.  In that case, what quantum of damages would I have awarded Mr. Lin?

31.  As a result of the accident, Mr. Lin suffered a sustained contusion to his left knee.  Being in pain, he rested for a while and then went home early. 

32.  Mr. Lin did not immediately report his accident to the site safety officer.  This was because (according to Mr. Lin) he did not initially think that the injury was serious.  Being the only bread-winner for his family, he also did not want to risk losing his job.  Instead, he merely rubbed some ointment over his left knee.

33.  On 2 July 2002, the pain and swelling in his left knee having become worse, Mr. Lin sought treatment at Tuen Mun Hospital.

34.  Later, laxity of his knee joint was detected. An MRI investigation of 9 October 2003 showed:-

(1)     osteochondral contusion at left lateral femoral condyle;

(2)     small crack features over the left medial tibial plateau;

(3)     a sprain injury to the left anterior cruciate ligament; and,

(4)     myxoid degeneration of posterior horn of medial meniscus.

35.  Mr. Lin obtained sick leave certificates for the periods from 2 to 25 July 2002; 22 to 29 October 2002; and 1 November 2002 to 31 October 2003.

36.  Mr. Lin resumed work intermittently between July and August 2002.  He was dismissed by IECL on 5 September 2002.  On 4 November 2003 the Medical Assessment Board certified him as having suffered a 5% loss of earning capacity.

37.  Mr. Lin was examined by his medical expert Dr. Johnson C. K. Lam on 17 August 2004.  Dr. Au Ka Kau (the Defendants’ medical expert) saw Mr. Lin on 13 August 2005.  On 28 October 2005 Dr. Lam and Dr. Au both examined Mr. Lin and produced a joint report dated 23 November 2005.

38.  At the joint examination in October 2005, Mr. Lin told Dr. Lam and Dr. Au the following:-

(1)     He needed to rest after walking for 30 minutes on level ground.

(2)     He needed support to climb stairs and could at most ascend 1 or 2 flights of stairs at a time.

39.  Previously, at his examination in August 2005, Mr. Lin had mentioned to Dr. Au that he could only carry up to 8 kilos with both hands.

B.1    Pain, suffering and loss of amenity (PSLA)

40.  Mr. Ng accepts that Mr. Lin’s injury falls at the lower end of the serious injury category.  He suggests a PSLA award of $150,000.

41.  Mr. Wright (for the Defendants) submits that no more than $80,000 to $100,000 can be justified under the PSLA head.

42.  Mr. Wright relies in particular on a surveillance video.  The latter shows Mr. Lin moving about various locations in Hong Kong between 8.45 am and 10.08 am on 2 August 2005; between 9.01 am and 10.53 am on 4 August 2005; and between 12.50 pm and 13.02 pm on 5 August 2005.

43.  The video shows Mr. Lin walking relatively briskly from place to place.  He is seen carrying a folded-up trolley (obviously weighing more than 8 kilos) up a flight of steps in one sequence.  He appears to have little difficulty ascending staircases in MTR or train stations.

44.  Mr. Wright argues that Mr. Lin has grossly exaggerated the extent of his injury.  For that reason, any generous PSLA should (Mr. Wright submits) be ruled out.

45.  I think that Mr. Ng’s figure of $150,000 should be about right. 

46.  The video shows Mr. Lin walking with a slight limp.  He visibly favours his right leg in just about every sequence recorded.  My observation is supported by that of the medical experts.  In their joint report, they state (at §8.6):-

“Both Dr. Au and Dr. Lam noted that Mr. Lin habitually weight-bore on the right leg -- without notice that we were observing him.”

47.  I believe that this favouring of the right leg is consistent with impairment of the left leg due to the accident.

48.  Dr. Au and Dr. Lam differ among themselves in 2 principal respects. 

49.  First, both doctors notice some degeneration in Mr. Lin’s left and right knees.  Dr. Au attributes this wholly to age, Mr. Lin having been born in December 1949.  Dr. Lam suggests that the injury to the left knee contributed to degeneration in the left knee.

50.  Second, Dr. Au thinks that Mr. Lin can resume his previous employment.  Dr. Lam believes that Mr. Lin can only take on less physically demanding work, such as being a cashier, watchman or petrol station attendant.

51.  The video resolves neither point of difference.  It does, however, show that Mr. Lin can probably walk or carry to a greater extent that what he reported to Dr. Au and Dr. Lam. 

52.  But, if I am right about the limp, the video also indicates that on the balance of probability Mr. Lin has been perceptibly affected (and continues to be so affected) by the injury to his left knee. 

53.  Accordingly, I do not think that an award of $150,000 can be excessive.  This is especially so where the cases show that typically $250,000 has been awarded for PSLA where a knee accident falls within the lower end of the serious injury category.

B.2    Pre-trial loss of earnings

54.  Mr. Ng calculates this at $367,849.90.  Mr. Wright thinks that the correct figure should be between $45,560 and $148,070.

55.  The differences between the 2 calculations arise because of the following matters:-

(1)     Mr. Wright takes a lower figure for Mr. Lin’s monthly average earning.  Mr. Wright uses an average of $11,390.  In contrast, Mr. Ng takes an average of $12,415.75, based on actual monthly earnings grossed up by a factor of   1.05 to take account of MPF.

(2)     Mr. Wright suggests that loss of earnings should not be awarded for the entire of Mr. Lin’s sick leave period.  Mr. Wright says that 4 months should be sufficient since Mr. Lin would probably have had to give up heavy construction work by now even if the accident had not happened.  On the other hand, Mr. Ng suggests that there should be sick leave pay to cover 14 months.

(3)     Mr. Ng suggests that the Court should award Mr. Lin loss of earnings for 2 to 3 months to cover a period of seeking employment following the end of his sick leave period.

(4)     Mr. Ng gives credit for Mr. Lin’s employment as a security guard at a Chinese restaurant between January and August 2004.  There Mr. Lin earned $6,300 per month.  He apparently resigned because his employer did not think          that he was physically capable.

56.  I prefer Mr. Ng’s reasoning and calculations.  On an assumption of liability, I would have awarded $367,849.90 to Mr. Lin.

B.3    Post-trial loss of earnings

57.  Mr. Ng submits that a multiplier of 5 is reasonable.  He calculates a figure of $366,945, on the basis that Mr. Lin should be able to find light employment at $6,300 per month. 

58.  Mr. Wright thinks that no award should be made, as Mr. Lin should likely have retired from construction work by now.  Alternatively, Mr. Wright suggests that a multiplier of 2 is appropriate.

59.  Here I accept Mr. Ng’s case. I would have awarded $366,945.

B.4    Loss of earning capacity

60.  Mr. Ng proposes $55,041.75, taking the difference between Mr. Lin’s monthly salary before the accident and $6,300 and then multiplying that difference by 9 months. 

61.  Mr. Wright thinks that, if there is an award, it should be no more than $25,000.  Mr. Wright says that, at 56 years of age, Mr. Lin should have been doing lighter work now regardless of the accident.  Mr. Lin (Mr. Wright submits) should have little difficulty in finding light work.

62.  I think that Mr. Ng’s figure is probably too high.  On the other hand, I believe that Mr. Wright’s suggestion may be a little low.  An award in the order of $30,000 would probably be more appropriate.

D.5    Loss of MPF

63.  Mr. Wright says that there is no evidence that Mr. Lin has paid MPF contributions.  Mr. Ng submits that there is evidence of MPF payment and that $36,739.75 should be awarded.  I think that Mr. Ng is right on this head of damage.

D.6    Miscellaneous expenses

64.  Mr. Lin claims the following additional amounts:-

(1)     Pre-trial medical expenses: $671.

(2)     Travelling expenses for treatment during the pre-trial period: $408.

(3)     Post-trial medical expenses: $2,400.

(4)     Tonic food: $1,200.

I believe these expenses should be allowed as reasonable.

D.7    Summary of quantum

65.  Had I found for Mr. Lin on liability, quantum would have been as follows:-

(1)	PSLA	$150,000.00
(2)	Pre-trial loss of earnings	$367,849.90
(3)	Post-trial loss of earnings	$366,945.00
(4)	Loss of MPF	$  36,739.75
(5)	Loss of earning capacity	$  30,000.00
(6)	Miscellaneous expenses	$    4,679.00
		---------------
	SUB-TOTAL	$956,213.65
	LESS: EC Payment	($190,000.00)
		===========
	TOTAL	$766,213.65

66.  I do not regard Mr Lin as having himself been careless.  I would not have reduced the quantum on account of contributory negligence.

IV.     CONCLUSION

67.  Mr. Lin having failed to establish liability, his claim is dismissed.

68.  There will be an Order nisi that:-

(1)    the Defendants are to have their costs of the action, such costs to be taxed if not agreed; and,

(2)     Mr. Lin’s costs are to be taxed as between himself and the Director of Legal Aid in accordance with the relevant Legal Aid regulations.