LAU KAM TAI v. UNITED SOUNDFAIR ENGINEERING CO. LTD. AND OTHERS

CACV 181/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 181 OF 1999

(ON APPEAL FROM HCPI NO. 436/1996)

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J U D G M E N T

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Hon Rogers JA :

Introduction

1. This is an appeal and cross-appeal against a judgment of Suffiad, J. dated 13 April 1999 and a ruling of 8 May 1999.

Background

2. The plaintiff was employed by the 1st and 3rd defendants who were sub-contractors of the 2nd defendant in respect of work which was being carried out at the Kai Tak Airport. The work was in connection with part of the Airport apron which was on the north side of a taxiway bridge linking that part to the runway. The plaintiff claimed in respect of an accident which had caused injury to his back on 5 May 1993. There was no dispute between the parties that if the plaintiff was entitled to recover in these proceedings, all three defendants were liable.

Judgment

3. The Judge found in favour of the plaintiff and made a total award of HK$470,988.90 together with interest.

The facts

4. It was the plaintiff's case that on 5 May 1993, he was moving a mound of wet concrete which had been dumped onto the site. He had to move it about 60 feet to a place where his colleague, Mr. Tsang Kwong-tai, was carrying out blinding work, that is, making an under-layer of concrete. It was the plaintiff's case that in order to be able to reach the concrete at the centre of the mound, he constructed a ramp out of planks which were available. Unfortunately, after he had been using the ramp for some time, as he was pushing his wheelbarrow down the ramp, he slipped on the wet surface, fell and suffered the injury of which he complains.

5. The defendants disputed each one of those allegations. In the first place, it was disputed that there was a mound of concrete and in particular, that the defendant was engaged in moving it. It was said that the plaintiff was simply moving broken lumps of concrete. The defendants did not admit that the plaintiff had constructed a ramp or that he had fallen off it. As regards the plaintiff's injury, the defendants did not concede that the plaintiff had suffered any injury and certainly, if he did, it was not to the extent claimed. They had instructed private investigators to follow the plaintiff. The investigator not only observed him but took films of him to show that whatever injury he might have had, it was very much less than he claimed.

Findings of Fact by the Judge

6. The Judge made the following findings of fact in respect of which it is only necessary to mention that Mr. Ho Kam Cheong was a director of the 1st defendant and, in effect, in the position of a supervising employer.

"(1) On the afternoon of 5th May 1993, a mound of mixed concrete of the type referred to by both experts to a height of some 5 to 6 feet high was on site.

(2) Tsang Kwong Tai was carrying out blinding concreting works at a distance of some 60 feet away from this mound and the Plaintiff had to convey concrete from this mound to the place where Tsang Kwong Tai was working by using a wheelbarrow.

(3) When it got to a stage that the Plaintiff found it difficult to load concrete from the periphery of this mound at ground level into his wheelbarrow for the purpose of conveying it to where Tsang was working, the Plaintiff decided on his own initiative to construct a makeshift ramp using wooden boards which were available at the site in order to reach the top of this mound to load the concrete into the wheelbarrow. The ramp was constructed by the Plaintiff and led up from ground level to some 3 feet or so onto the mound.

(4) After the ramp was constructed it was used for quite some time -- by the Plaintiff himself on no less than 10 odd times -- to reach the top of the mound for loading and conveying concrete. Because of this usage, the ramp had become more slippery than at the outset due to the wet concrete being spilled on it from the wheelbarrows transporting concrete down from this mound.

(5) When the ramp was constructed and used for this purpose, Ho Kam Cheong was at the site and could have seen the use of this ramp to reach the top of the concrete mound for himself. However no steps were taken to put a stop to the use of this ramp. Ho Kam Cheong left the site at around 4 pm.

(6) At about 4.45 pm while transporting a barrow full of mixed concrete down the ramp, the Plaintiff slipped, lost his footing and fell down the ramp hitting his buttocks on the ground beside the wooden planks.

(7) I also make the finding that because the Plaintiff was in pain after the accident, he could not continue his work for that day but rested on site. At the end of the day he was assisted back to the site office by Tsang and then assisted home.

(8) After the Plaintiff had his accident, neither the foreman nor Ho Kam Cheong could be found either on site or at the site office. It was due to this and the Plaintiff's own belief that he had to report the accident to his boss in order to get medical treatment that he waited until the following morning before obtaining medical treatment after informing Ho Kam Cheong of his accident.

(9) On the following morning i.e. 6th May 1993, the Plaintiff informed Ho Kam Cheong that he had slipped and fallen and hit his buttocks on the ground the day before on site.

(10) I also find that when the Plaintiff signed on the Request for Employee's Compensation forms, the form had been filled out by someone other than the Plaintiff and that the Plaintiff had signed it without fully appreciating the contents of it, particularly in relation to how the accident occurred because his educational standard was such that he could not fully understand what had been put down."

This Appeal

7. On this appeal, Mr. Leung, on behalf of the defendants, took the primary point that even on the Judge's findings of fact, the defendants should not have been held guilty of negligence.

The Plaintiff's change of case in the court below

8. Before turning to that, however, it is necessary to consider whether it was open to the plaintiff to put his case as it eventually was put and whether it was open to the Judge to hold negligence proved on that basis. Mr. Leung pointed out that there had been a radical change in the plaintiff's case. The re-amended Statement of Claim alleged, amongst other things, that the defendants had been negligent in failing to take any, or any sufficient, measures or precautions to ensure that the plaintiff would be reasonably safe while he was working on the site and would not slip or fall while he was pushing the trolley on what was termed "the slippery pavement". However, when particulars were asked for, they revolved around an allegation that the planks had become slippery because other employees had been sprinkling water on the concrete which had splashed onto the planks. That, together with sand which had fallen from the trolley, or wheelbarrow, had made the planks slippery. That allegation was maintained right up until the cross-examination of the plaintiff. When the plaintiff was asked about it, he very quickly admitted that there had been no water splashed on the concrete or the planks.

9. Quite apart from the considerable lengths to which the defendants were put in having to secure evidence to show that there was no water supply at the site which could have been used, the complaint was that this admission now amounted to a radical change in the plaintiff's case. It was said that the defendants would have conducted and prepared their case quite differently had they been aware that the plaintiff's allegations were not based upon the ramp becoming slippery from the splashing of water. In particular, it was said that further expert evidence might have been sought with a view to showing that a mound of the height which the plaintiff claimed existed on 5 May could not have been present. Furthermore, the question would then have been whether the ramp was slippery without the presence of water.

10. Our attention was drawn to a number of cases including Lloyde v. West Midland Gas Board [1971] 1 WLR 749 and Qualcast (Wolverhampton) Ltd v. Haynes [1959] AC 743. It was argued that the departure by the plaintiff from his pleaded case was such that the trial was, at the very least, unfair to the defendants and that there should, at the minimum, be a new trial. In my view, there was a significant departure from the plaintiff's original case. Nevertheless, in the circumstances of this case, I do not consider that the defendants have been prejudiced to the extent that judgment could not still be given in the plaintiff's favour or that there should be a new trial.

11. As Mr. Leung confirmed, the defendant's stance at trial as well as in this Court had been that there was no mound of unset concrete. Although, perhaps, further evidence could have been prepared in that respect, the Judge did have evidence as to the type of mound which could be created with a "grade 10/20 and 50 slump" concrete. He had preferred the evidence of Dr. Chan, called on behalf of the plaintiff, as being far more reliable than that of Dr. Lau, the defendants' witness. Dr. Chan had said that concrete as dry as a 50 slump mix could have an angle of heap as much as 70o, although he would expect it to be more in the region of 45o. On the basis of the evidence which he accepted, the Judge came to the conclusion that a mound of unset concrete could have been formed in much the way the plaintiff said.

12. Thus, in the first place, I am not convinced that the defendants have not had an adequate opportunity of presenting their case in respect of the mound as regards the technical evidence. In the second place, I doubt very much that expert evidence would have assisted the Judge in considering whether, if a sloping plank were contaminated with concrete slurry which had fallen from the wheelbarrow, it was slippery to the extent that a worker might slip on it. But in any event, the defendants clearly conducted their case at trial on the basis that the plaintiff's case was bogus start to finish. In those circumstances, if the defendants had wished to run some further argument, it would have been very much a tentative case of confession and avoidance.

The attack on the Judge's findings

13. In this Court, Mr. Leung, at first tentatively but then substantially, challenged the finding that there had been a mound of unset concrete. Reference was made to the unlikelihood of that being so because such records of the work being carried out at the site as existed would indicate that it was unlikely and unnecessary for the concrete which was delivered to the site from a barge to have been left in mounds. Furthermore, it was said that because of the quantities in which the concrete was delivered, a sufficient quantity of concrete would not have been delivered for a mound of the size alleged by the plaintiff to have been present.

14. It must, however, be noted that Mr. Leung based his argument upon the premise that the Judge's finding was against the weight of the evidence. In this respect, the obvious must be stated, that the Judge saw and heard the witnesses. This is of particular importance in this case because it would seem that the witnesses and, in particular, the plaintiff and Mr. Tsang, were not of a high educational standard. Nevertheless, the Judge clearly formed a favourable impression of Mr. Tsang and it was, to a large extent, based upon his evidence that the Judge came to the conclusion that he should accept the plaintiff's version in relation to the existence of the mound and the ramp. In contrast, the Judge clearly viewed the evidence of some of the defendants' witnesses in particular, Mr. Keung with some concern. After hearing his evidence and in particular the cross-examination, the Judge came to the conclusion that Mr. Keung's evidence was "wholly unreliable".

15. In my view, it is impossible for this Court to disturb the Judge's finding as to the existence of a mound of unset concrete and the fact that the plaintiff had constructed a ramp out of planks to gain access to the top of it.

Whether there was negligence

16. On the Judge's findings, it would be apparent that the nub of the plaintiff's case was that the defendants failed to provide the defendant with a safe system of work, namely a safe system for the plaintiff to transport the concrete from the mound to the place where Mr. Tsang was working. The plaintiff was, in effect, provided with no system of work and was left to his own resources to devise such system as he could. In the event, he devised an inadequate system which eventually led to his injury. In these circumstances, it seems to me, that the Judge's basic finding of negligence was correct.

17. In coming to his findings of fact, the Judge took into account the fact that the plaintiff had exaggerated his claim, both in respect of the way the accident happened and in respect of his injuries. The Judge did so, having seen the plaintiff give evidence for some time. He assessed the plaintiff and was not blind to the plaintiff's faults in this respect. He also assessed the other witnesses. I do not consider that the Judge can be faulted, having approached the case in that manner, when he accepted that part of the plaintiff's evidence, which, he felt, had sufficient corroboration from Mr. Tsang's evidence. It was open to the Judge to consider, for example, that a person with a good claim may, nevertheless, be tempted to embellish his story, perhaps to try and make it sound more plausible or believable.

The defence of volenti non fit injuria

18. Mr. Leung put the defendants case that they should be absolved from liability on the simple basis that the plaintiff had voluntarily encountered a risk of which he was fully aware. As Mr. Leung pointed out, the plaintiff claimed to be an experienced concrete worker and had put his case on the basis that the "ramp method" of constructing a ramp by planks which could then be used as a walkway was a recognised method of working.

19. Whilst it is true that the plaintiff did, on his own admission, construct the ramp himself on his own initiative, I do not consider that this puts the case within the category of those in which the plaintiff has wholly taken upon himself the risk. The plaintiff was an employee and on the Judge's findings, it was his task to move the mound of concrete as best he could. It has to be borne in mind that, of course, the concrete had to be moved before it set. Although the plaintiff may have chosen a method which was not ideal, it could not be said that he had knowingly and voluntarily taken a risk upon himself. The Judge commented in his judgment that the plaintiff was of low educational standard and inarticulate and it would be quite wrong for this Court to substitute its own finding for that of the Judge that a person such as the plaintiff, who had been engaged in concreting work, should have taken the full responsibility upon himself for the likelihood of any accident.

Contributory negligence

20. Both the plaintiff and the defendants appeal in respect of the Judge's finding that the plaintiff was 1/3 to blame for the accident. For the defendants, it was said that the Judge failed to take into account a number of factors, in particular, the control which the plaintiff had over his own actions specifically in constructing the ramp and in continuing to use it at a time when perhaps he might not have otherwise needed to use it because the mound had decreased in height.

21. For the plaintiff, it was said that the Judge's finding of contributory negligence was based upon a failure to turn over the planks when the plaintiff realised or should have realised that the surface had become wet and slippery by reason of cement spilling from the wheelbarrow. It was said that this aspect had not been explored in evidence and it was wrong for the Judge to come to such a conclusion in the absence of the matter being fully explored in the evidence.

22. The apportionment of blame for the purposes of assessing contributory negligence is by no means easy. It is a matter, however, in respect of which the trial Judge almost invariably has a considerable advantage having heard the witnesses and made his own assessment as to the nature of the dangers; the apportionment of blame is often a matter dependent upon impression. Mr. Lam, for the plaintiff, is correct in saying that it does not seem that the question of turning over the planks was explored in the evidence. It might have been, for example, that nails were protruding from the underside of the planks and the planks could not have been turned over. It may also have been that the material upon which the undersides of the planks had been resting had caused those sides of the planks to become just as potentially dangerous as the top surface.

23. In my view, however, the Judge's approach to the question of apportionment was really an assessment that, at some stage, it should have become obvious to the plaintiff that the planks had become so soiled with wet cement that he was liable to lose his footing and he should have taken steps to avoid using those planks. It might have been, for example, that he could have used other planks. Again, this is pure surmise. It might have been, as the defendant suggested, that he no longer needed to use the ramp at all but could have tackled what was left of the mound from ground level. Whatever it be, the Judge's finding, in my view, is, in essence, that by the stage when the accident occurred, the danger, which the plaintiff should have appreciated in the circumstances, was such that he should bear a substantial portion of the blame. I do not consider, however, the Judge under-estimated the plaintiff's own responsibility in the matter and I do not consider that there is cause here for this Court to interfere with the Judge's apportionment of blame. In this respect, I would reject both the defendants' and the plaintiff's contentions in respect of contributory negligence.

Quantum

24. The Judge recorded that the medical examination of the plaintiff in June 1993 showed that there was a restriction in the neck movement, tenderness at the lower back and a slightly diminished height of the intervertebral disc between the third and fourth lumbar vertebrae. The plaintiff was admitted to hospital for 4 days and in September 1993, a myelogram and CT examination revealed essentially normal findings. As it subsequently transpired, the plaintiff was granted sick leave up to 12 March 1996. MR1 revealed disc desiccation but apparently no spinal stenosis or nerve root compression. There was evidence that he would suffer permanent impairment of approximately 8% of the whole person, that he could not return to his pre-accident job as a concretor because it involved heavy manual work but he was not precluded from moderate manual work.

25. The Judge also took into consideration that the plaintiff appeared to be uncooperative with the defendants' expert medical witness, Dr. Louis Hsu. He took into account the fact that the plaintiff was exaggerating his medical symptoms but, nevertheless, considered that in view of Dr. Hsu's acceptance that there was some pain in the lower back that it was likely that that would continue. Importantly in this case, as referred to above, the surveillance of the plaintiff showed in more graphic form that the plaintiff, in everyday life, was less handicapped than he was prepared to concede.

26. All these factors the Judge noted in his judgment. Having assessed the situation, he came to the conclusion that the case did not come in the same category as the prolapsed disc injury cases to which he had been referred and he assessed the damages at $250,000. In my view, this is within the range of figures for a back injury of the type which the Judge found that the plaintiff had suffered and hence, the award is not one which should be interfered with by this Court. In so saying, the difficulty which the defendants faced because of an uncooperative plaintiff, is something which undoubtedly dictates that caution had to be adopted.

Pre-trial loss of earnings

27. In making his assessment as to the pre-trial loss of earnings, the Judge calculated on the basis that the plaintiff would have been earning $500 per day. He also calculated on the basis that the plaintiff would have worked a 24-day month.

28. On behalf of the plaintiff, it is said that too low a figure had been selected as the daily wage and no allowance had been given for the undoubted increase in wages for concretors after 1993. It would seem that the Census and Statistics Department put the average daily wage for a concretor in May 1993 at HK$560.80. By March 1996, the equivalent figure was HK$713.80. It was also said that the number of days of work per month which the Judge used to calculate the damages was too low.

29. In fixing the daily wage at $500 per day, the Judge was following a rough and ready submission which had been made in the plaintiff's own skeleton argument at the close of the trial. It would seem that that figure was arrived at by dividing the figure of $70,340, given in the Employer's Return of Remuneration for the year ended 31 March 1993, by a potentially high number of days per month. To that extent, it seems to me that an injustice may have been occasioned to the plaintiff by reason of the fact that the Judge then proceeded to calculate the likely wages on the basis of a lower numbers of working days per month, namely 24 days per month.

30. In this Court, the plaintiff sought to rely on other documents, for example, the Form 2 notice under the Employee's Compensation Ordinance which put the average monthly wage at $14,000 per month, and the defendants' own records of employment. As was pointed out, however, by Mr. Leung on behalf of the defendants, no hearsay notice had been served in respect of those and, in my view, it would not be right at this stage for this Court to try to analyse or rely upon those documents when they do not appear to have been relied upon either in argument or otherwise below.

31. The figure of $500 per day came, as I have mentioned, from a rough and ready calculation made on behalf of the plaintiff, based upon the figures and the Employee's Return of Remuneration form. That document seems to have been the basis for the Judge's calculation. In my view, another and, perhaps the more accurate, way of approaching it would have been to consider that the period covered by that return was 159 days, making an average per day of the whole period of $442.138 or taking the figure at a 31-day month, $13,448.375 per month. It might also be noted that if the figure of $13,448.375 were divided by 24 as being the average number of working days per month, the average daily wage might be estimated to have been $560.35 which is remarkably close to the Census and Statistics Department's average.

32. I therefore consider that the Judge's estimate of the current earnings of the plaintiff was low and, in view of the fact that it seems to have been the intention to have based it upon the plaintiff's earnings up to the end of March 1993, it requires adjustment. In averaging out those figures, I would also point out that it would be by no means over-generous to the plaintiff since the period of 159 days undoubtedly covered Chinese New Year, when it might be supposed that the plaintiff was not gainfully employed, it would also have covered a comparatively lengthy period in March after the date of the accident when presumably, the plaintiff was not receiving wages.

33. The matter of the increase in wages for concretors is a matter of some speculation but nevertheless, it is a factor which should have been, in some way, worked into the calculation. In my view, taking into account the Census and Statistics Bureau figures for concretors, the fair figure to have taken for a daily wage averaged over the whole period, taking into account the increase in wages, would have been in the order of $650 per day. This was a figure achieved for a concretor at least by the end of 1994.

34. I would not alter the figure of 24 working days per month which was used by the Judge. It might not have been overly generous but it seems a reasonable estimate in view of the plaintiff's family circumstances.

35. Taking this as a whole this would have given a total figure of $530,400 in respect of 24 working day-month for 34 months and would therefore increase the award referred to on page 4 of the ruling of 8 May from $408,000 to $530,400, an increase of $122,400.

Interest

36. On behalf of the plaintiff, the complaint is made that although credit was given for the sum of $495,160 which was paid to the plaintiff as employee's compensation, no credit was given for the fact that interest was also paid on that sum in consequence of the award in the employee's compensation proceedings. The point was taken in the defendants' Reply to the plaintiff's further revised Statement of Damages. That was dated 27 February 1999. Under paragraph 13 it was stated :-

"The interest rate on special damage should be 6% per annum and the amount of EEC award in the sum of $495,196 should be deducted from computation of interest."

Whereas that might be condensed, in my view, it was a clear statement that $495,196 should be deducted from the amount when interest was calculated.

37. Mr. Lam, on behalf of the plaintiff, argued strenuously that the defendants had changed their stance in this regard and that previously, all that had been said was that the amount of $495,160 should be deducted, but that they had not made the claim which they had now more precisely identified. In my view, the point which the appellants make in this regard is correct. It is one which, it seems to me, was made in their pleading and, although it appears to have been misunderstood by the plaintiff, is one which this Court must observe. In my view, the defendants' appeal in this regard should be allowed. I would leave it to the parties to agree the calculation, giving them liberty to restore in the event and agreement not being reached.

Costs of the action

38. The defendants complained that the Judge awarded the plaintiff the full costs of the action, notwithstanding that the plaintiff had failed to prove his pleaded case, in particular, in regard to the allegations that other workers were splashing water on the concrete. It was stressed that that allegation had been a fundamental part of the particulars which had been provided. The other matter which the defendants said the Judge should have taken into account was the plaintiff's exaggeration of his symptoms.

39. In respect of the first matter, it was pointed out that the defendants went to considerable trouble to prove the lack of water supply. Whereas it is appreciated that a great deal of work outside Court may well have been involved in preparing the evidence, it is clear that at the trial, little time was spent upon that. A great deal of time, however, was spent upon the defendants' case that the accident could not have happened in the manner in which the plaintiff alleged, for example, calling of witnesses in an attempt to prove that the plaintiff was wheeling concrete lumps and not unset concrete.

40. Faced with this slightly unusual scenario for a personal injuries case where so much was in conflict, I do not consider that this is a matter in which this Court should interfere with the Judge's discretion as to costs.

Costs of the hearing of the 8th May 1999

41. We have also been addressed by both parties in respect of the costs order made by the Judge at the further hearing on 8th May. This was a further hearing in which the Judge considered matters arising out of the judgment, which had been handed down and had contained a costs order nisi. One of the matters which the defendants wished to raise was the costs order for the Action and in particular the trial. They were unsuccessful in their application. It could be said that had the Judge not handed his judgment down, the costs of the 8th May would have been incurred in any event. For my part, I am reluctant to interfere with a Judge's discretion as to costs he has awarded. Where the award of costs in the Court below has clearly been within the discretion which the Judge had, and in my view it was, this Court should not interfere with his award of costs; it is very much in the Judge's discretion having regard to the way and importance in which matters were raised in front of him at the hearing. It is not for this Court to re-assess the importance of those. In any event, in a hearing such as that on the 8th May, it would also have been likely that an order would have been made that the costs order would follow the costs order at the trial.

Cost of the Appeal

42. In the result I consider that the Appeal and cross-appeal should be allowed in the respects indicated above. As to costs, a significantly greater amount of time was spent in considering questions of liability and apportionment than the other questions arising on the appeal. I would propose that an order nisi be made that the plaintiff should receive two-thirds of his costs and that there be an order for legal aid taxation of the plaintiff's costs.

Hon Keith JA :

43. For the reasons given by Rogers JA, I agree that the appeal and the cross-appeal should be allowed to the extent which he has identified, and that the orders proposed by Rogers JA should be made.

Hon Godfrey JA :

44. I have found this a difficult case but, in the end, I agree with all the conclusions of Rogers JA and with the orders he proposes.