LUNG KWONG YING v. SO SAI LO AND OTHERS

HCPI 206/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 206 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. This is a claim by a Steel Fixer who suffered injuries whilst working on a construction site inside Stanley Prison on 27 August 1998. He was employed by the first Defendant. The third Defendant was the main site contractor. The work of steel-bending on the site had been sub-contracted by the third Defendant to four sub-contractors of which the first and second Defendants were but two. This is clear from the sub-contract itself which is to be found in the trial bundle at pages 56 a-b of section D.

2. The first Defendant has taken no part in this trial. Originally one firm of solicitors acted for all three Defendants so at that stage there was no issue between them in relation to liability. A Defence was filed and served on behalf of all three Defendants. But then in a manner which characterises much of Hong Kong's personal injury litigation, first one Defendant was abandoned, and then the second, leaving only the main contractor to follow the litigation through to its bitter end using another firm of solicitors and relying on contribution and indemnity notices against the first and second Defendants. The second Defendant conducted his own case and gave evidence essentially on the contractual issue. He had no knowledge of the circumstances of the accident.

3. The Plaintiff's case was quite simple. He was working on the steel bending machine with two colleagues. The machine in question appears to have been of the usual moveable type. The photographs produced by the third Defendant are not of the actual machine but they illustrate the basic mechanisms and features common to most if not all of these machines. The bar cutting section is clearly shown. On top of the machine are the standard fittings for steel bending. One of the Plaintiff's colleagues operated the bar-bending mechanism.

4. The Plaintiff with another had positioned a number of bars or rods on the machine and fed them through between the two vertical pillars or stanchions on top of the revolving drum. These bars or rods were also positioned against a third pillar, the function of which was to provide stability to the bars as the drum revolved to effect the bending. Without it, the force exerted by the drum would simply carry the bars around without achieving the bending. Therefore the bars had to be held in that position. Whilst this process was being carried out the Plaintiff's job was to steady the bars and in effect supplement the function of the third pillar. He was standing sideways onto the machine and from the top photograph on page 35 one can easily envisage the process as he described it.

5. The Statement of Claim is far from being a clear statement of what then happened but his evidence was clear enough. As the bending was taking place with the drum revolving causing, inevitably, great pressure to be exerted on the length of the bars, the third pillar lifted out of its slot thus no longer holding the bars in position and the bars whipped or lashed, knocking the Plaintiff over and causing him to fall down, his back striking other steelwork and woodwork on the ground.

6. The pillar in question fits into a recess. In view of its purpose it should not be liable to come out. If it is able to do so the machine is clearly defective. The risk of injury is obvious. It is clearly foreseeable that once the bars have been deprived of the restraint provided by the third pillar the force thus freed will pose a hazard for anyone in immediate proximity and logically for anyone holding the bars.

7. That then is the evidential picture. There has been no examination of the machine in question to tell me how the third pillar came to be ejected from its position or even how it should fit into its recess, nor whether there is any limit to the number of bars which can or should be bent at the same time.

8. On the Plaintiff's evidence he must succeed. The third pillar failed to fulfil its function. Prima facie that failure is due to a defect in the machine, possibly through poor maintenance, damage or improper fitting of the third pillar. There is, evidentially, no other explanation. I accept the Plaintiff's version of events.

9. The Plaintiff was not cross-examined on the basis that he did anything that was negligent so as to contribute to the accident. The amended Defence of the third Defendant alleged, as contributory negligence, that he was involved in bending 5 to 6 bars in a single operation. His case was that he was not operating the bending mechanism. It also alleged that he should have ensured that the immediate vicinity was free from metal and wooden material on the ground. No doubt the pleader had in mind the foreseeability of the Plaintiff's fall as a consequence of some failure in the machine or the system. Finally it is pleaded that he ought to have noticed that the third pillar was loose, that he should have tightened it and that knowing that it was loose, he should not have continued to take part in the steel-bending process.

10. None of these matters was put to the Plaintiff. He was not therefore challenged upon his version of events and since Mr Walker Sham for the third Defendant had no statements to support the pleaded allegations of contributory negligence, he was unable to put those to the Plaintiff. I should make it clear that the pleaded Defence of the third Defendant was not settled by him so he bears no responsibility for it.

11. The first Defendant being absent, the second Defendant gave evidence next. He said he did not supply the machine in question but that it was supplied by the first Defendant, the Plaintiff's employer. He also added that in or about mid-July he ceased to be involved with the steel-bending and was engaged on other work. There was some dispute between him and the third Defendant concerning a contract at Sai Kung. It was difficult to see what relevance this had to the subcontract at the Stanley Prison save that it appeared that the second Defendant was saying that because of some dispute or misunderstanding over the Sai Kung contract, he withdrew from work at Stanley Prison.

12. The third Defendant was not able to elicit anything which saddled the second Defendant with any liability for the steel-bending process on the day of the Plaintiff's accident. In answer to questions from the Plaintiff's counsel, Mr Lawrence Ng, he said that an advance payment by the third Defendant of $150,000.00 enabled the first Defendant to purchase (or hire) the machine for the steel-bending on site.

13. The evidence concluded early in the afternoon of the first day, Mr Sham for the third Defendant having closed his case without calling any evidence. I acceded to his request that I adjourn the trial until the next morning for him to prepare written submissions. I was aware that he had been instructed on behalf of the third Defendant only the late afternoon or early evening of the preceding day.

14. The following morning Mr Sham applied for leave to re-open his case so as to call evidence. Unusual though this turn of events was, particularly since I had discussed with counsel the state of the evidence and those conclusions which inevitably flowed from it in order to assist their submissions on the following day, I allowed his application. He called the third Defendant's employee, Mr Chong Cho Hung.

15. This witness was the site manager. He had made a written statement which was in the trial bundle. It was dated the 29 October 2001 and so it was far from contemporaneous. The accident had not been investigated by the Department of Labour despite the fact that it concerned a defective machine.

16. In speaking of the steel-bending machine he said that it was of the normal type for a construction site. He and Mr Ho Chi Shing, the third Defendant's safety officer, inspected the machine to ensure that it complied with all requirements so as to avoid the Labour Department's interest if its inspector came on site. The electrical wiring in particular was checked to ensure that the power supply was satisfactory. The machine was, he said, supplied by the sub-contractor though he did not identify which sub-contractor. At some stage he said that the main contractor regarded itself as responsible for the condition of such machinery brought on site in order to meet the Labour Department's requirements or code. Ho Chi Shing was, he added, responsible for safety on the site including all equipment. Of course, as he said to Mr Ng, the main contractor does not certify the condition of the equipment, that was for the sub-contractor who brings it on site but "we give warning signals."

17. The import of his evidence, which was consistent with the contents of his statement, was that the main contractor regarded itself as answerable to the Labour Department. That was an aspect of its statutory duty. Through its agent, a sub-contractor, it had caused such a machine to be brought on site for which it had overall responsibility. Hence, of course, the extent of its and Mr Ho Chi Shing's interest in and concern about certain aspects of the steel-bending machine. It is worth setting out two sentences from paragraph 3 of his statement:

" Before the commencement of the project, I and Ho Chi Shing, the Safety Officer of the third Defendant would examine the machines used by contractors as to whether they complied with the relevant safety rules and regulations."

and

" Mr Ho had examined the said machine and confirmed that it was equipped with the safety facilities under the law."

18. Upon the completion of this evidence, Mr Walter Sham in fact closed his case. In his submissions he did not pursue a pleaded contention that because the third Defendant had brought sub-contractors on the site for the purpose of the steel-bending, it was not responsible for that part of the site on which that sub-contract work was carried out. That would have been quite untenable. The main contractor does not thus divest itself of liability under the Occupiers Liability Ordinance or any other ordinance. Occupier's liability has no real relevance in a case such as this. Other statutory liability and common law duty of case are directly applicable.

19. There is no evidence to challenge the Plaintiff's version of events. Mr Sham contended that there were other reasonable explanations for the Plaintiff's accident but, as I pointed out, there is no evidence of explanation other than that given by the Plaintiff, and no other explanation was put to him. The third Defendant had had the opportunity of examining the machine to see what defect, if any, it had. The work continued on the site for some time after the accident. Form 2, notification of the accident to the Department of Labour, was completed by or on behalf of the third Defendant in the November 1998.

20. The third Defendant was in my judgment unarguably responsible for the safety of the site in general and for the safety and proper functioning of the equipment in particular. Mr Sham argued that there was no evidence to show that the machine was defective at the time, or whether, if there was a defect, whether it was patent or latent.

21. The Plaintiff's evidence is sufficient to raise a prima facie case of defect. The pillar should not have come off during the operation. There is no evidence to rebut this. If it is to be contended that the nature of the system of work was such as to put abnormal strains on the pillar which it was not designed to withstand, then there has to be evidence of such. There was none.

22. There was a breach of duty of care on the part of the Plaintiff's employer, the first Defendant. This is non-delegable. I find that the machine was brought onto the site by the first Defendant with the third Defendant's approval. Without such a machine the work could not be done. I make no specific finding as to whether the third Defendant gave money to the first Defendant with which to purchase or hire the machine. The point is immaterial. For the reasons I have set out earlier, the third Defendant as main contractor on site had responsibility for the condition of the machine as was clearly manifested by the concern of its safety officer.

23. The main contractor, the third Defendant also had a common law duty of care to workmen on the site. That extends to ensuring that they are not at risk of harm from machinery brought onto the site. That duty is also encapsulated in statutory form in Regulation 38A of the Construction Site (Safety) Regulations (Cap.59). The Statement of Claim does not identify breach of this regulation specifically but sets out the duty in general statutory, and common law terms.

24. I am unable to find on the evidence that the second Defendant was negligent or in breach of duty to any extent. I accept Mr Li Man Yim's evidence that as far as the machine and the steel-bending operation was concerned it fell with the area of contractual responsibility of the first Defendant. Accordingly I dismiss the claim against the second Defendant and the third Defendant's claim for contribution indemnity against him.

25. However the third Defendant's claim against the first Defendant succeeds. There is clear evidence to support this although the lack of precise detail makes it difficult to assess the extent of such contribution or indemnity. Given the degree of responsibility of the main contractor I assess it as 50 percent.

26. There will therefore be judgment for the Plaintiff with costs against the first and third Defendants, and judgment for the third Defendant with costs against the first Defendant for 50 percent of the damages and costs to be paid to the Plaintiff.

Quantum.

Pain, suffering and loss of amenity.

27. There are three reports from the government hospitals relating to this man's treatment with a physiotherapy report, a report from Dr David Cheng dated 29 February 2000 and one from Dr Lee Po Chin dated 20 November 2000.

28. Having seen and heard the Plaintiff it is absolutely clear to me that he is in no way exaggerating his condition. On the contrary, he is refreshingly candid and if anything makes light of the continuing problem.

29. He is 52 years of age now, and had been a steel fixer for 25 years. When he attended hospital on the day of the accident it was diagnosed that he had suffered a contusion to his lumbar spine. There was decreased range of movement and muscle spasm. At one stage there was thought to be a deformity at S4 level on X-ray. This was not confirmed. He received physiotherapy and attended the clinic until 2 January 1999. He tried to return to work on 3 January but after three days the pain became intolerable. His work was of course of a heavy nature and involved lifting.

30. The Caritas Medical Centre, which he attended, noted diminished trunk flexion, with diffuse lower back tenderness and paraspinal muscle spasm. Some pre-existing degenerative change at L 4/5 area was shown on the MR1 scan. This factor has excited the Defendant's attention to the extent that it has formed the basis for an argument that the Plaintiff would have had only a few years of working life left in him at the time of the accident.

31. The two consultants who examined the Plaintiff early and late in 2000 are substantially agreed in their findings and prognoses. By the time of their examinations the Plaintiff had in fact made substantial progress but was nonetheless left with a significant degree of disability.

32. Dr Cheng found residual back pain and confirmed his conclusion that there was a back sprain on top of the degenerative change. There was no neurological deficit. Although fit to work he had to avoid heavy work, particularly heavy lifting. He was capable of returning to work as a steel binder, but there was a risk of further injury. In sensible terms this means he cannot return to his pre-accident job. Light occupations were identified, as usual.

33. Dr Lee described slight residual pain nine months after Dr Cheng's examination. He also referred to the ability to return to work but acknowledged the restriction in the lifting of heavy weights. He identified alternative occupations but some of them are clearly not realistic alternatives since they are likely to involve heavy lifting or other heavy work on occasions i.e. plasterer and form-worker.

34. I have to approach this case on the basis that it would be very unwise for him to return to his pre-accident work. The risk of a recurrence of injury and pain is obvious. No sensible employer with knowledge of this would expect him to be able to carry out such work.

35. Since the accident he has been able to obtain periodic work as a mapping worker on construction sites. This is essentially a site office job with quasi-supervisory responsibility. It involves giving steel workers on site the plan or map setting out where and how the construction is to be carried out. It is a job of some responsibility but its duration is uncertain. He is able to do it only on contracts where about 25 to 30 steelworkers are used. When contracts including such work have finished he is more or less redundant.

36. He has been deprived at a relatively young age of a remunerative job requiring a degree of fitness. Having done it for 25 years he obviously found it satisfying. Although the periodic employment calls for more skill and responsibility it is more sedentary and it does not require a high level of physical fitness. To that extent it is less satisfying. It does not provide security either.

37. He is left with a degree of disability which continues to manifest itself in intermittent discomfort. The condition of a man's back is more often than not a barometer of his sense of well-being. He is also now more vulnerable. Nonetheless, Mr Lawrence Ng's contended figure under this head of damage is much too high but Mr Sham's is somewhat on the low side. Awards in other cases are of little value. One has to apply all the factors in relation to the injury, its prognosis and incidental problems to the person in question. In my view the proper figure is one of $250,000.00.

Loss of earnings.

Pre-trial.

38. Prior to his accident he was earning $31,200.00 per month. This is the figure set out on Form 2. It is the figure accepted by the Defendants as the basis for their calculation.

39. Although he is currently employed in the capacity referred to he has only been in that job for a few weeks. He is not yet sure of his actual wage. He has had several such jobs of varying duration. The proper approach is to take the full period between the date of the accident (27 August 1998) and the date of judgment (9 August 2002), multiply the number of months by the pre-accident wage figure, and deduct the actual earnings received over that period. I am quite satisfied that he has made every effort to obtain work. The argument that over the other unemployed periods he should have obtained work as an ordinary labourer on a construction site (this is just not tenable in view of his condition) or as a watchman, security guard etc. (assuming there were such interim vacancies) does not stand the test. He is entitled to search for a job which recognises his skill and experience and provides a reasonable level of remuneration. He has done this. Taking up a more menial job in these circumstances whilst looking for the mapping clerk's job on construction sites, is just not feasible. He would in any event be unable to give a long-term commitment to any such menial work when the prospect of the better-paid, more skilful and satisfying work, emerges from time to time.

The loss is:

$31,200.00 x 47 1/2 = $1,482,000.00

From this figure there must be deducted the earnings to date, and any interim payments. A figure of $120,000.00 was mentioned. It is not clear if this is part of or in addition to the employee's compensation payment.

Future Loss of Earnings.

40. The first factor to be determined is the multiplier to represent the period over which this is to be calculated.

41. I shall assume that he would have retired at the age of 65. It is argued that in view of the nature of the heavy work involved he would not have been able to maintain it until that age. But against that is the consideration that he may have been able to so organise the nature of his work as to reduce, to some extent, the heavier aspect. It is important to note that he did not suffer the injury because of the heavy work and there is no history of back injury as a result of heavy work.

42. The argued factor of his pre-existing degenerative change as reducing his likely working career has no real substance. It was previously asymptomatic. Neither doctor has regarded it as likely to reduce his working life. I do not think it should feature as anything other than a matter to be considered as part of the general vicissitudes of life. We are told by orthopaedic consultants that at such a stage of life, we all have a degree of degenerative change in our cervical and/or lumbar spines. Of course one must have regard to the prevailing economic climate. There are times when it is more difficult to find work and this is one such time. Nonetheless even today, Hong Kong's construction work is substantial.

43. The suggestion by counsel for the Defendant that the multiplier should be 3 does not in my view fairly reflect the overall picture. He is now 52 years old. The appropriate multiplier is 7.

44. The multiplicand is more problematic. Should I approach it on the basis of a full continuing loss, discounted by a reduction in the multiplier to take account of the chances of periods of temporary employment as a mapping clerk, or should I reduce the annual loss of earnings as a steelfixer by the average of his annual receipts as a mapping clerk over the last 2 1/2 years?

45. The actual agreed total figure for these earnings is $269,725.00. It represents four periods of work. They are of varying lengths. I accept that he will continue to have such jobs from time to time in the future but no consistent pattern or regularity will emerge. On these past figures the average earnings over the period since he commenced that work is about $8,500.00 per month. An annual figure would be about $102,000.00. If I were to apply the latter approach his continuing future loss would be about $273,000.00 per annum.

46. I have concluded, not without some difficulty because of necessity each involves an arbitrary approach, that I should take the loss of earnings as a steelfixer reduced by the average of the earnings as a mapping clerk viz. $31,200.00 less $8,500.00 per month = $22,700.00 x 12 = $272,400.00 per annum. Applying the multiplier the figure will be $1,906,800.00.

Loss of earning capacity.

47. Since I have applied a notional average earnings figure to reach a partial continuing loss, I have to have regard to the risk that, because of his limited work/earning capacity, there will still be periods when he will not even be able to obtain the temporary work as a mapping clerk. This risk can never satisfactorily be measured on a mathematical basis. It has to be, again, on an arbitrary basis. I consider that the proper figure is $300,000.00.

Loss of Mandatory Provident Fund.

48. I have to bear in mind the accelerated receipt of any such payment to represent future loss. Doing the best in what is still an uncertain area despite the legislation, the figure I allow is $50,000.00.

Special Damages.

49. The Defendant contends for a reduction on the amount claimed for tonic food. I think that is a reasonable stance. I allow the adjusted figure of $7,109.00.

Summary.

From this figure there falls to be deducted any interim payments, and the payment made under the E.C.O. provisions which I understand to be $394,504.59.

50. Interest is to be calculated on those items which rank for interest at the relevant rate for the appropriate period. This is for the parties to agree.

51. There will be judgment for the Plaintiff for $3,728,184.00 damages with interest, and costs to be taxed if not agreed.