TSANG TAI FAT v. KINGLAND CONCRETE DRILLING CO LTD

HCPI 566/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.566 OF 2001

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. The plaintiff claims damages for personal injuries sustained by him when he fell from a height of 1.5 metres while working at a construction site at Laguna Verde in Hung Hom on 27 July 1998.

2. The claim is brought against the defendant being the employer of the plaintiff at the time the accident occurred.

PLAINTIFF'S EVIDENCE OF THE ACCIDENT

3. The plaintiff gave evidence as to how the accident happened. The defendant called two witnesses, but neither of them saw how the accident happened. I am therefore only left with the evidence from the plaintiff as to how the accident happened.

4. The defendant is, as its name suggests, a concrete drilling company and also carries out concrete demolition works. The plaintiff was employed by the defendant as a concrete breaker and started to work for the defendant around 10 July 1998.

5. At the material time of this accident, the defendant was engaged as a sub-contractor to demolish a concrete transfer plate (or podium) at the construction site in Laguna Verde which had been wrongly constructed and needed to be demolished so that after its demolition, the proper transfer plate could be erected in its place. The plaintiff was one of the workers engaged to demolish the concrete transfer plate using a hand-held pneumatic hammer.

6. The plaintiff came to Hong Kong in 1979 and since that time he had been working on construction sites. It is also his evidence that he had about 10 years experience in using a pneumatic hammer.

7. On 27 July 1998, a large portion of the concrete transfer plate which the defendant was required to demolish at the site had already been cut away to a depth of some 1.5 metres but leaving some concrete pillars still standing.

8. At about 11 a.m. the plaintiff was on top of one such concrete pillar which had a diameter of 1.5 metres. The floor surrounding that concrete pillar on three sides of it had already been cut away to a depth of some 1.5 metres. There the plaintiff intended to use his pneumatic hammer to cut off the concrete from that pillar with a view to demolishing the entire pillar. He had already demolished one such pillar earlier that morning using the same method. This was the second pillar he was to demolish on that day.

9. The plaintiff had intended to break off small pieces of concrete by drilling it off the pillar starting from the outside edge on top. Suddenly, however, an unexpectedly large piece of concrete broke off from the outside edge of the pillar as he was drilling it and, at the same time, that part of his hammer which he had drilled into the concrete got caught in the reinforcement steel bars inside the pillar. He could not free the hammer from the large piece of concrete which broke off from that pillar. He did not let go of the hammer and was pulled down falling some 1.5 metres to the ground. As a result the plaintiff hurt his lower back.

10. Then a supervisor came over to see what happened and asked the plaintiff to take a taxi to go to the hospital himself.

11. According to the plaintiff, he then made his way to the Accident and Emergency Department of Queen Elizabeth Hospital and was there seen by a doctor. He told the doctor that he had fallen from a height of some 1.5 metres and had hurt his back. He was examined by the doctor, given an injection and painkillers to relieve his pain and was told to return the following day when the result of the X-ray would be available. When he returned the next day, he was told that the X-ray showed that he had sustained a severe injury to his back and he was referred to a Specialist Outpatient Clinic of the North District Hospital.

12. The plaintiff also gave evidence that the pneumatic hammer used by him weighs about 100 pounds and that he estimated the very large piece of concrete which broke off from the pillar that he was drilling to have weighed about 200 pounds. He also admitted in his evidence that he knew that there were reinforcement steel bars inside the concrete pillars which he was asked to demolish. Some of the steel bars, the vertical ones, could be seen sticking out of the pillars. He knew there were other horizontal reinforcement steel bars inside the pillars which could not be seen until the concrete has been chipped off or cut away.

13. In cross-examination, the plaintiff said that the reason why he could not let go of the pneumatic hammer after it got caught in the very large piece of concrete which broke off from the pillar as he was drilling was because he feared that if he let go, the hammer would fall onto another colleague who was working on the ground immediately below where the plaintiff was standing on top of that pillar.

14. He said in cross-examination that when he was pulled down by the combined weight of the hammer and the large piece of concrete which broke off from the pillar, he fell head first from the pillar and landed on his hands, legs and knees on the ground some 1.5 metres below. The ground below was full of debris and small pieces of concrete as a result of the demolition work which had been going on before the accident. The plaintiff also said that after he had landed on his hands and knees, his shoulders came into contact with some steel rods on the ground below but that his head did not hit the ground. He agreed that it was a painful landing but said that there was no bleeding and no bruising on his body but only just some marks.

15. The plaintiff agreed that the doctor at the Queen Elizabeth Hospital diagnosed a sprained back as being the only injury found on him. When he was asked in cross-examination what other injury he had suffered apart from the sprain to his lower back as a result of the fall, the plaintiff answered that after he was discharged from Queen Elizabeth Hospital that same day, in the evening when he was taking a shower at home, he had noticed that the skin had been scratched off from his elbow and which he did not noticed until he was taking his shower that evening.

FINDING OF FACT

16. In the absence of any evidence contradicting the account given by the plaintiff as to how the accident happened, I am prepared to accept the evidence of the plaintiff except for one matter which I have grave reservations upon. That matter is to do with the fall as alleged by the plaintiff.

17. Although there is no evidence from the defendant as to how the accident happened, there is before me two medical reports. The first one from a Dr Hui Tze Leung who attended the plaintiff at the A&E Department of QEH at 14.08 hours on 27 July 1998, and the second report from a Dr Ngai Wai Kit who saw the plaintiff at the Specialist Clinic of North District Hospital on 11 August 1998.

18. In neither of these two reports were there mention by either of the doctor that the plaintiff had suffered a fall despite the plaintiff's evidence that he had told both these doctors of his fall and the height from which he fell.

19. Dr Hui in his report states that "He (the plaintiff) sustained injury while on duty on 27 July 1998. He sprained his back while drilling ground with a machine."

20. Dr Ngai in his report states "He (the plaintiff) twisted his back during work on 27 July 1998 while he tried to catch a falling drilling machine."

21. I am aware that very often doctors when compiling their medical reports focus on the injury rather than on the cause of the injury.

22. However in the present case, quite apart from the two doctors not having mentioned any fall by the plaintiff in their medical reports, there are further matters which cause me to have serious doubts as to whether or not the plaintiff did have a fall as suggested by him in his evidence.

23. In the report of Dr Hui when the plaintiff was examined in the A&E Department of QEH, the findings on examination of the plaintiff was stated to be tenderness on the 5th lumbar spine and that X-ray showed degenerative changes in the lumbo-sacral spine. The clinical diagnosis was back strain. There were no findings of any other injuries suffered by the plaintiff. In fact the doctor found the general condition of the plaintiff to be good. Certainly no mention of any laceration or skin scratched off from his elbow as stated by the plaintiff in evidence.

24. I would be very surprised that had the plaintiff fallen from a height of even 1.5 metres (just under 5 feet) and landed in the way described by the plaintiff that he would not have any other injuries other than only a back strain.

25. For these reasons, I accept all the evidence given by the plaintiff with the exception of the fall. I accept further that the sprain to his lower back likely took place when he tried to retrieve the pneumatic hammer which had been caught in the steel reinforcement bar of the unexpectedly large piece of concrete which broke off from the pillar that he was drilling and the combined weight of the hammer and the large piece of concrete most likely caused the strain to the plaintiff's lower back.

26. I do not however accept that the plaintiff could not or did not let go of the pneumatic hammer and as a result fell some 1.5 metres with it. In such circumstance as described by the plaintiff, it would almost have been instinctive for him to have let go, perhaps not immediately (else he would not have sprained his back) but once he realised he was no match against the combined weight of the hammer and the large piece of concrete.

LIABILITY

27. The case of the plaintiff as pleaded and particularized was that the defendant had exposed the plaintiff to unnecessary risk in the way that the plaintiff was asked to carry out the demolition work.

28. However, it is interesting to note immediately that when the plaintiff was asked in-chief by his counsel what the defendant, being his employers, should have done to prevent the accident from happening, the reply from the plaintiff was that it was difficult to say since he did not expect what happened to have happened. The plaintiff then went on to say that he could have avoided the accident if he had gone about breaking the concrete from that pillar from down below, but in that case he would have gotten the dust from drilling the concrete all over his body.

29. The plaintiff's counsel continued in that exchange by further asking the plaintiff if the steel reinforcement had been cut away (before the concrete was broken by him using the pneumatic hammer) would the accident have happened. That drew the further reply from the plaintiff that it would be difficult to say because it was only after the concrete had been broken that the reinforcement steel rods which were imbedded inside the concrete became exposed.

30. These answers from the plaintiff highlights the very dispute on liability in this case, namely what is the act or omission of the defendant which the plaintiff complains of as showing negligence on the part of the defendant in causing the accident when the accident happened in the manner as found by me.

31. Counsel for the plaintiff pitched his case on the basis that firstly there was an unsafe system of works, secondly that the plaintiff had not been given adequate training and thirdly that the defendant had failed to give any or any adequate warning to the plaintiff as to the hazards which may be caused by the steel reinforcement bars inside the concrete which the plaintiff was to cut away.

32. In support of each of these contention, evidence was adduced from the plaintiff that he had been supplied with no training by the defendant in relation to the cutting of the concrete pillar and he had not been warned by anyone as to any hazards relating to his work. However this evidence from the plaintiff was in respect of training and warning generally in his work and not directly as regards the accident.

33. Counsel for the plaintiff, when cross-examining Lai Kwok Kwun, the first witness called by the defendant, being the ganger who had engaged the plaintiff to work for the defendant and who himself also worked for the defendant at the material time, obtained the following evidence from him :

(a) neither the foreman of the defendant nor the defendant provided any training to the workers;

(b) he had not seen the foreman of the defendant informing the workers of any safety measures; and

(c) he does not know if the foreman had assessed the risk of demolishing the transfer plate (or podium) before such demolition work started.

34. Accepting all that evidence from both the plaintiff and Lai Kwok Kwan, it is still difficult to see how this accident came about due to the lack of training, or lack of warning given or was due to any unsafe system of work.

35. The plaintiff, in his own evidence, was well aware of reinforcement steel bars imbedded inside the concrete of the pillar which he was to break up. He also gave evidence that he had intended to break up the concrete by small pieces using the pneumatic hammer. Despite that it was out of all expectation that suddenly this large chunk of concrete broke off from the outside of the pillar. Nor could he have foreseen the hammer getting caught in the reinforcement steel bar on this unexpectedly large piece of concrete.

36. In my view all that suggests that this was a freak accident which came about due to a combination of a number of unforeseeable occurrences.

37. This would still be the view which I would hold even if I had found that the plaintiff did fall as he said in evidence. The finding by me that the plaintiff did not fall does not change anything in so far as the cause of the accident was concerned.

38. In all the circumstances of this case I do not find that the defendant was in breach of any of its duties to the plaintiff as an employer and was not negligent to the plaintiff by reason of this accident.

39. Accordingly the plaintiff's claim is dismissed with costs (being a costs order nisi) to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

40. In the event that I am wrong in my conclusions above on liability, I shall go on to deal with the question of quantum. In doing so I shall assess quantum theoretically on the basis of full liability.

QUANTUM

Injuries and treatment

41. The plaintiff was 49 years old at the time of the accident and 54 at trial.

42. On the day of the accident, the plaintiff went by himself to the A&E Department of QEH where he was diagnosed to have suffered tenderness of the 5th lumbar spine. He was given an injection and also medication to relieve the pain and discharged.

43. After the result of his X-ray showed degenerative changes in the lumbo-sacral spine, he was referred to the Outpatient Specialist Clinic at North District Hospital. He attended North District Hospital from 11 August 1998 and received physiotherapy there for two months.

44. When the back pain persisted, a Magnetic Resonance Imaging ("MRI") was performed on the plaintiff on 25 June 1999 confirming such degenerative changes. On 24 September 1999 an operation was performed on the plaintiff for anterior spinal fusion on L5/ S1. After that operation, the plaintiff attended a course of post-operative physiotherapy and home exercise.

45. Apart from the back pain, the plaintiff now complains also of weakness and numbness in his lower limbs which came about after the anterior spinal fusion operation.

46. The plaintiff was examined by his own expert, Dr Au Ka Kau, in this matter on 6 June 2002. He was also examined by the defendant's expert, Dr Lam Kwong Chin on 23 August 2002.

47. Both experts are agreed that the plaintiff has a sprained lower back with persistent back pain. They are also agreed that the MRI and X-rays taken of the plaintiff show pre-existing degenerative changes at L4, L5 and S1 level albeit such degenerative changes were asymptomatic before this accident. Both experts are also agreed that the total disability of the plaintiff when he was examined by them amount to 20% impairment of the whole person.

48. The two experts however differ in that Dr Au is of the opinion that although the plaintiff did have pre-existing degenerative changes in his lumbo-sacral spine, it was asymptomatic and it was the injury in this accident which made it become painful. In that sense Dr Au attributes the present disability of the plaintiff entirely to the accident.

49. On the other hand, Dr Lam is of the view that the injury caused to the plaintiff was only a sprain to the soft tissue and that it was impossible for the sprain or the fall in this accident to have caused the multiple level of disc degeneration. He therefore is of the opinion that only 5% (out of the 20%) impairment was attributable to the injury caused in the accident. Dr Lam was further of the opinion that even without the present accident, the degenerative changes in his back would have deteriorated such that it would have stopped the plaintiff from working in another two to three years' time.

50. Dr Lam was able to point to the fact that the plaintiff had indicated to him that the back pain had partially improved after the operation in September 1999 for the spinal fusion of L5/S1 but it had deteriorated again in the recent half year (before his examination). If true, Dr Lam takes the view that this is illustrative that the plaintiff was suffering from spontaneous degeneration of his spine and that the recent symptoms is likely due to the L4/L5 degeneration. Dr Lam further points out that this degeneration in L4/L5 is ongoing despite the fact that the plaintiff has not returned to any kind of work at construction sites since his accident in July 1998.

51. Even Dr Au is of the view that after the spinal fusion at L5/S1, the movement and stress occurring at L5/S1 will be shifted to L4/L5 and may aggravate the degeneration at L4/L5.

52. Dr Au however does not agree with Dr Lam's opinion that the plaintiff's pre-existing degenerative condition of his spine will become symptomatic in about 2004 to 2005 even without any aggravating injury. That, according to Dr Au is only a possibility.

53. Both experts are agreed that in his present condition, which is permanent, the plaintiff will not be able to return to his pre-accident work at construction sites where he frequently has to lift weights of some 120 pounds. They are also agreed that the plaintiff will be able to take up some form of light or sedentary work.

Pain, suffering and loss of amenities

54. I have little hesitation in accepting the opinion of Dr Lam where it differs from that of Dr Au. When looked at in its entire context, this accident is merely the trigger for the plaintiff's pre-existing degenerative spinal condition to turn symptomatic. In view of the kind of work performed by the plaintiff at construction sites and in particular the kind of heavy weights which he has to cope with daily, had it not been for this accident, then it would be just some other occasion which would trigger off his degeneration and turn it symptomatic thereby making it painful.

55. His degenerative state was like a time-bomb waiting to go off at the slightest excuse. This accident provided that excuse and resulted in his persistent back pain.

56. On the basis of the permanent disability suffered by the plaintiff as manifested by his persistent low back pain, and using the local awards cited to me in submissions by both counsel, I would have assessed the damages for pain suffering and loss of amenities at $450,000.00. However, in view of the pre-existing degenerative condition of the plaintiff's spine, that figure would need to be reduced by 50% as to give a figure of $225,000.00 as being the damages under this head.

Loss of earnings (pre-trial)

57. The Form 2 filled in by the defendant gives the plaintiff's pre-accident earnings to be $20,800.00 per month based on 26 work-days at $800.00 per day. Government statistics show little change in the average daily wage today. However, due to the downturn in the economy affecting the construction industry, it is not unreasonable to expect the number of work-days in a month to have declined. There is evidence from Banna Mak (DW2) that workers similar to the plaintiff can obtain work from between 20 to 25 days a month which I accept.

58. Based on that evidence I shall assess the present notional monthly income of the plaintiff to be $800.00 x 22 days which gives $17,600.00. Therefore the average monthly income for the pre-trial period comes to ($20,800.00 + $17,600.00)/2 which gives $19,200.00. Since the accident, 60 months have elapsed. The total loss of earnings (pre-trial) therefore comes to $1,152,000.00.

59. MPF came into force in Hong Kong in December 2000. Loss of MPF to the plaintiff for the pre-trial period would be $19,200.00 x 5% x 32 which gives $30,720.00.

60. In assessing the pre-trial loss of earnings as I have, I accept the submission of plaintiff's counsel that once the plaintiff is unable to return to his pre-accident work as a construction worker, it is unreal to expect the plaintiff to have any prospect in seeking some light or sedentary form of employment due to his age and his low level of education.

Special damages

61. Medical expenses of $5,230.00 and travelling expenses of $5,685.00 have been agreed and will be allowed as reasonable.

62. There is a claim for tonic food in the amount of $10,000.00. The defendants are only agreeable to $5,000.00 for tonic food. In the light of the persistency of his back pain and the accident being three years ago, that amount claimed by the plaintiff for tonic food is not unreasonable and will be allowed in full.

63. The main dispute between the parties is the plaintiff's claim for $96,000.00 being one year's loss of earnings for the plaintiff's wife who had to give up her job as a dim sum waitress at a monthly salary of $8,000.00 to look after the plaintiff after his operation for spinal fusion.

64. There is evidence from the plaintiff as to why his wife had to give up her job as a dim sum waitress. That evidence was not seriously challenged by the defendant and I accept that evidence. I note also that the claim was for giving up her job only after the plaintiff had his operation in September 1999, not post-accident.

65. In my view that claim is a reasonable one and will be allowed.

66. The total special damages assessed therefore comes to $116,915.00.

Loss of future earnings

67. Having accepted Dr Lam's opinion that the plaintiff's working life as a construction site worker would unlikely go beyond 2005 due to the degeneration in his spine, I should use a multiplier of 2 for the loss of future earnings. The multiplicand would be $17,600.00. That gives $422,400.00. The loss of MPF in relation thereto would be $21,120.00. I use 2 as the multiplier because there is no magic in the year 2005 which is but an estimate by Dr Lam.

Loss of earnings capacity

68. There will be no award made for loss of earnings capacity by reason of the fact that the plaintiff had already been awarded full loss of earnings limited to the estimated remaining working life of the plaintiff in the opinion of Dr Lam.

Interests

69. Interests for general damages for pain suffering and loss of amenities at 2% p.a. from the date of the Writ.

70. Interest for special damages and for loss of pre-trial earnings will be at 4% p.a. (being half judgment rate) from the date of the accident.