SO CHUNG KWONG v. HO KUEN t/a BRILLIANT DESIGN AND DECORATION CO. AND ANOTHER

HCPI 550/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 550 OF 1995

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J U D G M E N T

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1. This is a claim for damages arising out of injuries suffered by the plaintiff in an accident.

Background

2. In July 1992 the plaintiff called So Chung Kwong (Mr So) was a man of 43. His trade was then carpentry, which he engaged in whenever work was available.

3. The 1st defendant called Brilliant Design and Decoration Company (Brilliant Design) was a sole proprietorship owned and operated by a man called Ho Kuen (Mr Ho) which carried on business as decorators.

4. That month the 2nd defendant called Aponn Interior Design Limited (Aponn) contracted to carry out certain renovation work in office premises in Kowloon. Aponn sub-contracted part of that work to Brilliant Design, and that included the construction of a conference table for the board room. Mr Ho engaged the services of casual tradesmen and workmen to work for him for the duration of the sub-contract, expected to be about one month. Mr So was one of those employed. He showed up for work on site on the appointed date 5 July. Mr So's status and daily rate are not agreed. It is his case that he was engaged as a carpenter and he was to be paid the then going rate for carpenters of $480 per month. The extent to which he was instructed what to do is also not agreed. It is his case that he and another carpenter, called Mr Choi, were assigned by Mr Ho to build the board room table. They were told to make it out of blockwood cut to size, from ten boards measuring 1,830 mm (6 feet) by 1,220 mm (4 feet) by 18 mm (3/4 inch) which had already been delivered on site and were stacked inside the premises. There was a circular saw installed in its table some thirty metres away where the table was to be made. Their first task then was to convey the boards to the saw, there to be measured and cut to size. They were not told how this was to be done, though Mr Ho was on site, nor was there any trolley or other equipment available for them to use. They decided between themselves to carry the boards one per person from the lift to the saw. Mr So carried his share one at a time on his back. He walked stooping forwards, the better to distribute the load and to avoid catching the ceiling with the top leading edge. Once they had all the boards by the saw they began marking them and cutting them to size. During this part of the work Mr So experienced a sudden sharp pain in his lower back, and was forced to stop. He was sent to hospital where he remained for observation, diagnosis and conservative treatment following which he was discharged after 10 days. But he was still in pain and this persisted over the next few months, the pain spreading down from his back to his legs. In December 1992 he was returned to hospital where he was given a CT scan and this revealed a prolapsed invertebral disc of L4-5 lumber spine. Surgery diminished the discomfort but the back pain persisted. In the event he was granted sick leave for a year and warned not in the future to lift heavy objects or engage in similar activity. He has accepted this advice which has permanently put paid to his returning to carpentry. The pain has gradually diminished with time although he is left with a residual stiffness, and he still suffers from back pain if forced to sit for lengthy periods or if he over-indulges in strenuous activity.

The Plaintiff's Claim

5. Mr So pleaded that his accident was solely caused by his employer Mr Ho in that he failed to instruct Mr So and his colleague on how they should carry the boards, and to provide them with a trolley, or equipment, or manpower for the purpose and was in breach of their contract, or in the alternative a common law duty of care he owed him as his employer. He holds Brilliant Design responsible for his pain and suffering and loss of amenities, past and future loss of income because of his no longer being able to work as a carpenter and specific expenditure arising out of the accident.

6. Originally he also joined Aponn as 2nd defendant but subsequently sought and was granted leave to discontinue his action against Aponn.

The Defence

7. Mr Ho admitted that Brilliant Design employed Mr So, but as a labour, not as a carpenter, on a much lower daily rate. Mr So began carrying the boards without attending a briefing for job allocation of all newly hired workmen. If the lifting and carrying of the boards caused his injuries then he was wholly or at least partly responsible for having chosen to do so improperly and without assistance.

The Evidence

8. When it came to trial Mr Ho did not appear to argue his defence. He had been represented but an application for legal aid was turned down and after that he acted in person. Before the trial began I was satisfied that he had notice of the trial date but had chosen to stay away. There being no explanation for his non-appearance, I proceeded with the trial in his absence.

9. Mr So was called first.

10. He adopted as his evidence statements he had made and exchanged. He was born in Canton in 1949. He came to Hong Kong in 1973 aged 24. In 1976 he married. He has two children born in 1977 and 1981. The family has for years lived in a public housing estate in Shatin.

11. Mr So began working as a carpenter in 1973 when he first arrived in Hong Kong. He received no formal training, acquiring his skills by imitation and practice. He was full time in the trade until his work patterns were interrupted by an accident in 1989 unrelated to these proceedings. After a period of inactivity following the accident he returned to the workforce. But full time work was no longer available to him and then only intermittently as a carpenter. By way of example for the six months preceding the date of the accident, namely the first part of 1992, he worked on average only 15 days per month, and of those only 20, in March, as a carpenter, for which he was paid the then going rate of $480 per day. The remainder of his working days was spent as a cleaner earning $200 per day. He suffered the accident giving rise to these proceedings on his first day of working for Brilliant Design. He has no idea for how long he would have remained so employed but for the accident. Assuming that would have been for the duration of the sub-contract, being about a month, he expected to be paid $480 per day for a six day week which is standard in the trade.

12. On 5 July it was Mr Ho himself who assigned to Mr Choi and him the task of constructing the table. He gave them a plan of its dimensions and told them to get on with the job. They had no instructions on how to transport the boards to the work site and devised their own method as described as being the most efficient. Whilst accepting that carrying one board between two would have shared the load and avoided the need to stoop, Mr So said that was not a viable option. In his experience a boss who sees two people engaged in a job which could be handled by one would fire them on the spot as being wasteful of resources. As it was physically possible for one to carry a board, though not without difficulty and discomfort, it did not cross his mind to do otherwise.

13. His stay in hospital cost him $1,433 and he incurred related travel expenses of $520.

14. Since the accident and his designated sick leave of 12 months he has acceded to medical advice and not returned to carpentry or any other occupation involving heavy lifting. Now he refers to himself as a painter-decorator. He has worked on average 15 to 20 days per month at an average daily rate of $280, rising in the last three years to $300. He wants to work for as long as his health allows, to 60 or even beyond.

15. The next witness was Mr So's wife, called Ku Sui Lan (Madam Ku). She said that at the time of the accident she was working as a part time domestic helper on about $2,000 per month. For the time her husband was in hospital and a few days after that she was obliged to take some time off to look after him. By doing so she was docked about $1,300 in wages.

16. The third witness was Dr Tsoi Chi Wah (Dr Tsoi), an orthopaedic surgeon in private practice in Hong Kong. He had been invited to examine Mr So and his records relating to the injury in October 1993 and again in October 1997. He confirmed reports he prepared at the time in which he stated that it was his considered view that Mr So's prolapsed disc as diagnosed was caused by lifting and twisting and was attributable to his manhandling the boards prior to the onset of pain which disabled him. He assessed his permanent disability at 10%. Whilst further deterioration is unlikely, Mr So would definitely be at risk if he were to attempt to lift weights in excess of 30 lbs (14 kgs) or engage in heavy labour. That effectively putting paid to his ever working again at his trade of carpentry and having to accept more menial work, he assessed his loss of earning capacity at 20%.

17. Reports prepared by two doctors engaged by the defence to examine Mr So were put before Dr Tsoi for his comments. Invited to consider the assessment each made that Mr So's injury amounted to a permanent disability of 5 or 6% and loss of earning capacity of like amount, he responded that it was his view that whilst all three doctors had agreed on the injury and cause the others had failed to give proper weight to the extent of it and in particular the neurological aspects. Faced with the differences in percentage terms, he backed his own as being more accurate.

18. The plaintiff's case further relied on a report made by a Mr W A Evans, a university lecturer in engineering at Hong Kong University. Though he was not called because he is not in Hong Kong, the defendant had been served with a hearsay notice which he had not challenged.

19. Mr Evans visited the site with Mr So and in reliance on what he was told reconstructed events leading to the accident. He estimated that each board weighed 24 kgs (53 lbs). Mr So demonstrated how he carried the boards. Mr Evans paid heed to the dimensions of the boards, their weight, Mr So's height, weight and age, the distance to travel and the confined space in which the conveyance was undertaken. It was his considered view that a board of similar dimension carried by one person of Mr So's stature should weigh no more than 17 kgs (371/2 lbs) without putting that worker's safety at risk. With the boards weighing each much more than that, two men should have been deployed to convey each board or there should have been made available for them to use trolleys or other mechanical lifting devices. The weight of each board coupled with the unusual posture forced upon Mr So put an unusual and excessive stress on his back. Given the medical findings it was his considered view that this was how Mr So was injured.

20. The final witness was Ma Ching Ko (Mr Ma) who is the welfare officer of the Hong Kong Construction Industry Employees General Union, a post he has held for 30 years. He submitted tables that revealed that a carpenter joiner was earning $500 per day in 1992 and can these days expect to earn $770 per day.

21. That was all the evidence. Mr Ho having chosen not to appear there was no evidence called by the defence. But there were no admissions on the pertinent issues and it remains for Mr So to have to prove liability and, if successful in whole or in part, the level of his loss.

22. Before this I have to resolve the disputes of fact.

Findings of Fact

23. In the absence of any definitive evidence to the contrary, I accept Mr So's word that he was hired by Brilliant Design not as an ordinary workman but as a carpenter for $480 per day, anticipating a month's work for a six day week.

24. I am further satisfied that he told the truth when he said he and Mr Choi were deployed to make the conference table and were given plans by Mr Ho for the purpose. There was after all no challenge to his claim that it was whilst he was manhandling the boards on to the saw table for cutting to size that he first suffered the pain, and no ordinary workman would have been permitted to do that. Further, it is far fetched that he and Mr Choi would have started work without having been briefed on how to do the job first.

25. I find as a fact that it was left up to Messrs So and Choi as to how to move the boards, without direction or instruction from Mr Ho. I rely on Mr Evan's report and Dr Tsoi's account that the method chosen put excessive strain on Mr So's back and this caused the prolapsed disc resulting in permanent disability.

26. I am satisfied that from then on it no longer became possible for Mr So to work as a carpenter without risk of further damage and he could no longer offer his services as such on the labour market. I accept the level of disability and loss of earning capacity as assessed by Dr Tsoi. But I also pay heed to and accept Mr So's account that for six months prior to the accident he was employed on average 15 to 20 days per month and for only one period of 20 days during that period as a carpenter on $480 per day. The rest of the time he was employed as a cleaner earning $200 per day.

27. These findings lead to my rulings on the issues of liability and quantum of loss, which I now come to.

Liability

28. By virtue of the contract of service between Brilliant Design as employer and Mr So as employee at the time of the accident, Brilliant Design owed a duty of care to him, and is thus liable to meet any loss suffered by him if in breach of that duty, with or without contribution, depending on the circumstances.

29. What that duty amounts to must depend on the circumstances; there can be no arbitrary rule. I quote from Munkman on Employer's Liability, twelfth edition, page 33:-

"The duty is sometimes said to be one to take all reasonable care for his employee's health and safety; but that is hopelessly vague as a guide to the scope of the employer's responsibility.....

The duties are often analysed as a duty to provide and maintain a safe place of work and equipment; ....."

30. Within the context of this case there was, as I find, a clear obligation on Mr Ho to direct his employees, Messrs So and Choi, in the manner in which they were to undertake their duties, and this included how to convey the boards from the lift where they were stacked to the place where the circular saw was mounted. I have already found as a fact that he delegated the task of constructing the conference table to them. There was thus ample opportunity during this briefing to ensure that they carried the boards safely by directing that they share the load. I am satisfied he did not. Yet he was on site, knew the boards' dimensions and likely weight, knew such factors as the height of the ceiling relative to the size of the boards and knew or ought to have been aware of the risk of injury if they were not carried safely. This duty did not, as I find, include providing a trolley or other mechanical means to assist in the conveyance. There were, after all, only ten boards and there were two of them and the distance to travel was not especially long or restricting. But to say nothing, to issue no instruction or directive or warning was a dereliction of the duty of care he owed to his employees, putting Brilliant Design in breach of its contracts with them.

31. I turn next to the issue of whether Mr So contributed to his own downfall.

Contributory Negligence

32. It is a fundamental principle and a matter of common sense that an employee undertaking activity in the course of his employment owes a duty of care to himself and will be liable to a reduction of any award if found in breach.

33. Each case must be founded on its own facts. But matters which will be influential will include the following:-

(a) the level of skills and experience the employee has attained; the higher the level the more he is liable to look after himself;

(b) the degree of pressure imposed upon an employee by his employer to maintain or increase output at the expense of caution; obviously the greater the pressure, the less the employee is to blame;

(c) the degree of familiarity the employee has with that activity which puts his own safety at risk.

34. On Mr So's behalf his counsel Mr Wu suggested that the burden being on Brilliant Design to prove his contributory negligence that must fail because Mr Ho did not attend court to call any evidence in support of that. He quoted from Charlesworth and Percy on Negligence, ninth edition, paragraphs 3-12:-

"Burden of proof by contributory negligence. The burden of proving contributory negligence is on the defendant; it is not for the plaintiff to disprove it. If the defendants' negligence or breach of duty is established as causing the damage, the onus is on the defendants to establish that the plaintiff's contributory negligence was a substantial or material co-operating cause. Further, as was explained by du Parcq LJ in Lewis v. Denye [1939] 1 KB 540 at 554:-

"In order to establish the defence of contributory negligence, the defendant must prove first, that the plaintiff failed to take 'ordinary care of himself' or, in other words, such care as a reasonable man would take for his own safety, and, secondly, that his failure to take care was a contributory cause of the accident."

35. But the some paragraph concludes with the following:-

"In order to discharge the burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced already on the plaintiff's behalf or from the primary facts, so found by the court, on a balance of probabilities."

36. So it is still open to me to find contributory negligence if I find it established or inferred from the plaintiff's case.

37. Mr So's evidence that it was his belief that he and Mr Choi would be sacked if they were seen to share the burden of carrying the boards because that would be time consuming and wasteful is as I find absurd in the extreme. Given the number of boards and the distance to travel it would of course have added a few minutes only to the time taken for the overall task; no employer in his right mind would be critical of that. I find as a fact that there was no pressure brought to bear on the carpenters to work so quickly that they were forced to convey the boards at one per person. Furthermore, Mr So's experience in the field would have allowed him to assess the boards' weight and recognise the risk of carrying them single handedly in a confined space. I find it established by inference that he must have been aware of the risks associated with carrying the boards as he did, took that risk and must share the blame for the consequences. He was as I find to blame for his accident to the extent that his contribution is fixed at 30%.

Quantum

38. There remains to be calculated what the cost of Brilliant Design's liability comes to.

PSLA

39. The first head of damages is commonly known as PSLA - pain suffering and loss of amenities.

40. In the leading case of Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657, the Court of Appeal stated that how much should be awarded under this head is directly related to whether the injury suffered falls into or outside the categories described, in rising order of severity, as serious injury, substantial injury, gross disability and disaster. This is to be established by comparison with other decided cases. The quantum is then determined by what has been laid down by the Court of Appeal, with due allowance to cost of living and other inflationary factors.

41. Mr Wu argues his case falls at 25% below the lower end of the serious injury category, which current indicators, he says, reflect ranges from $460,000 to $621,000. Thus the appropriate award would be $345,000.

42. Lee Ting-lam defines serious injury as covering those cases where the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim; for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.

43. Mr Wu has put before me a large number of authorities, though he has chosen to highlight only one. That is Lai Wah Wai v. Castle Tasting Centre Limited (unreported) PI 1995/422.

44. In that case the plaintiff was overcome with pain whilst engaged in making concrete blocks by pouring liquid concrete into moulds. The work involved repetitive heavy lifting; he was found to suffer a similar though slightly more severe back injury than Mr So's in this case. As with Mr So, it was permanently disabling and required him to curtail his activities to avoid a repercussion. After reviewing a number of authorities the judge awarded him $300,000 for PSLA, which amounted to 75% of the lower end of the serious injury category.

45. In the circumstances of this case, I believe that Mr So's injury falls well below the serious injury category, and is a bit less serious than that suffered by the plaintiff in Lai Wah Wai.

46. Allowing for inflationary trends for PSLA, I fix on $320,000.

47. I come next to the estimated loss of income.

Loss of Earnings

48. Mr Wu to his credit readily conceded that calculations under this head submitted on behalf of Mr So were wildly optimistic because they were based on his having worked a 26 day a month as a carpenter prior to the accident, with anticipation that but for the accident that would have continued. In fact, on his own account, for the first six months of 1992 just prior to the accident (and he did not submit employment details going back any further) he worked for no more than 15 to 20 days per month on average. For 20 of those, in March, he was employed as a carpenter on $480 per day. For the balance he worked as a cleaner, earning $200 per day. The day of the accident was the first day of an expected month long stand as a carpenter. So, had he not been injured and worked out that contract, he would have been employed for no more than about 140 days in seven months and only 46 of those as a carpenter, about one third of that time.

49. Given that, following his sick leave, Mr So was pronounced fit to work and has worked at the same tasks and for the same remuneration and for the same average of 15 to 20 days per month that occupied his time for the six months before the accident, save as to carpentry, it becomes immediately apparent that the calculations of his pre-trial and future loss of earnings put forward on his behalf have to be adjusted drastically.

50. Those suffered before the trial come first.

Pre-trial Losses

51. On his own calculations, which I accept in the absence of any challenge to the contrary, Mr So was fit to return to work in August 1993 as a watchman and then painter as and when he could averaging 15 to 20 days per month at $170 per day rising to $300 per day for a total, as at November 1998, of $216,600. Projected to the date of trial, namely March 2000, this comes to $284,100 for a period of 7 years 8 months. But for the accident he could, as I find, have been able to maintain his pre-accident schedule of working 18 days per month on average, making a total of 1,656 days in all. One third of his work time would have been as a carpenter, on $480 per day, rising to $770 per day, at a median of $625 per day. The remainder of his work time would have been spent as a painter or similar earning $200 per day, rising to $300 per day, at a median of $250 per day. His income would have totalled (552 x $625) + (1,104 x $250) making $621,000; but he earned only $284,100.

52. His pre-trial losses thus come to $336,900.

53. I now come to assess his losses post-trial.

Future Loss of Earnings

54. My first task is to establish the appropriate multiplier, which bears to his age now and his expected age of retirement. He is 50 now and hopes to work for at least 10 more years. I believe the appropriate multiplier is 8.

55. Allowing for the same work pattern as pre-trial, Mr So can expect to earn $300 per day, 18 days per month. That comes to $5,400 per month for a grand total of $518,400. His loss can be calculated on the basis that for one third of his working days he could have expected to work as a carpenter and earn $770 per day, being $4,620 per month, and $8,220 in total; $2,820 more per month then he will actually make. Overall this difference comes to $270,720, representing his future loss of income.

56. There remains for consideration Mr So's claim for loss of earning capacity and special damages.

Loss of Earning Capacity

57. Under this head Mr Wu asks for $72,000 but frankly concedes he cannot mount an argument to support the claim. On the basis that it is designed to compensate a disabled person's prospective difficulty in the labour market, I find that Mr So cannot justify a further award over and above that dealt with under the previous head.

Special Damages

58. Actual expenditure Mr So says he has incurred are the following:-

hospital fees	1,433
travelling expenses	520
wife's loss of income	1,300
	3,253
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59. In the absence of any challenge to what are modest demands, I allow this claim in full.

Interest

60. There will be an award for interest at 2% per annum on general damages from writ to trial (6 years) and at 6% per annum on the pre-trial loss of earnings and special damages from the date of the injury to trial (7 years 8 months). These come to $38,400 and $132,665 respectively.

61. The allowable claims are as follows:-

PSLA	320,000
Loss of income to trial	336,900
Loss of future income	270,720
Special damages	3,253
	930,873
Interest at 2% on $320,000 (6 years)	38,400
Interest at 6% on $340,153 (7 years 8 months)	156,470
	1,125,743
Less 30% contributory negligence	337,722
	788,021
Less ECC award	350,000
	438,021
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Judgment

62. Judgement is for the plaintiff in the sum of $438,021 against the 1st defendant.

63. Costs of the plaintiff, taxed if not agreed, shall be met by the 1st defendant.

64. The plaintiff's own costs shall be taxed under Legal Aid Regulations.

65. The costs order shall be nisi at first instance with liberty for either party to restore for argument on notice given within or by 14 days of this judgment.