CHAN KWOK PING v. HOP YICK ENGINEERING CO. and Another

1995, No.P.I.1230

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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The Plaintiff's claim

1. The Plaintiff was an employee of the 1st Defendant. The 1st Defendant was the building contractor of a building ("the building") in a construction site in Kwun Tong ("the site"). The 2nd Defendant was the principal contractor at the site.

2. The Plaintiff claims damages for injuries to his right eye while he was working on the site on 9th November 1990. He was instructed by 1st Defendant to paint the ceiling and walls of the building with white wash. A 5 foot spraygun ("the gun") was used for the work. The gun was provided by the 1st Defendant. It had a lever at one end and a nozzle at the other. When the lever was depressed, the white wash will come out from the nozzle. The hole of the nozzle was about 1 mm in diameter. The gun was attached by a rubber hose of about 100 to 130 feet to a pumping machine. The pumping machine was connected by a suction pump to a bucket of white wash. The machine was operated by electricity.

3. 9th November 1990 was the first day in which the Plaintiff started work at the building. He started work at the staircase. The pumping machine was left at about 20 feet from the staircase. On the loading platform between the two flights of steps, there were construction materials. Because of the obstruction, the Plaintiff had one foot on the platform and the other foot on the staircase which was leading upwards. Shortly after he started work, he discovered that the gun was blocked. He squatted down with the gun between his legs, inserted a pin into the nozzle in order to remove the blockage. He said sprayguns would usually be blocked 30 to 40 times a day and the blockage would usually be cleared by inserting a safety pin and twisting it around. When he was clearing the nozzle, he was facing a wall. The distance between him and the wall was about two feet. He said that if there were no obstruction on the landing, he would prefer to clear the nozzles on the landing itself instead of on the steps. He said the spraygun was powerful and he would keep a distance of two feet from the wall so that people may not come into contact with the white wash. The nozzle was about one foot length from the floor of the landing. As he was twisting the pin, white wash suddenly splashed out and his right eye was hit by the white wash. He immediately washed it with water for 15 minutes. He went to the hospital for consultation. No other person witnessed the accident.

4. The Plaintiff had brought along a spraygun for demonstration. That gun had a cover or guard around the lever at the handle. The Plaintiff said that the gun he used did not have such a guard or cover and the lever was loose. The gun he used at the time of the accident was an old gun of at least six to seven years old. The 1st Defendant did not provide him with any goggles. He said that because of the spraying work, the glass of the goggles would be misted up by white wash in three minutes and if he had to wear a goggles he had to take it off to clean it every three to four minutes. The reason why the spraygun was used was because of its speed. It could work ten times as fast as workers using brush to paint the wall.

How did the accident occur?

5. I find that shortly after the operation began, the gun was blocked and the Plaintiff proceeded to clear the blockage with the safety pin. I find that he did not turn off the pump. Although his witness statement referred to his usual practice of turning off the pump, in his testimony he was unable to say whether he had in fact turned off the pump or not. The likelihood is that the pump was not turned off because the Plaintiff could feel the vibration of the hose and the gun which was caused by the operation of the pumping machine.

6. The Plaintiff said that he was squatting on the staircase when he was clearing the nozzle. This was challenged by Miss Lau, Counsel for the Defendants, who submitted that this was a most awkward and unnatural position to carry out the clearing operation. He could easily hold the gun in an upright position. This position would best explain why the white wash was splashed out to his eye when the nozzle was cleared. Miss Lau drew my attention to the discrepancies in the Plaintiff's evidence. I agree that there may well be discrepancies in his evidence, after all the event took place many years ago but I find that the Plaintiff was basically a truthful witness.

7. The Plaintiff said that he has to put down the gun in order to balance it on a level position. I accept the Plaintiff's evidence that he was in fact squatting down when he tried to clear the gun. However, although he said he did not know why the white wash came to be splashed to his eyes, I find the likely cause was because the white wash that came out from the gun was diverted by the pin and the fingers of the Plaintiff.

8. The two experts of the parties had carried out tests which clearly demonstrated that the flow of the white wash could be diverted by the pin or fingers holding the pin. Dr Green, the Plaintiff's expert, said that when he was trying to insert the pin into the nozzle, the head of the pin caused the flow of the white wash to be splashed onto his mask. Likewise in the demonstration by Mr Law, the Defendants' expert, when his wrist was underneath the nozzle with his fingers over the nozzle, the white wash was diverted to his mask when the nozzle was pointing upwards and the diversion was sideways when the nozzle was pointing downwards.

9. The direction of the diverted white wash depends on the position of the hand and palm, a point which was accepted by Mr Law. Miss Lau submitted that the distance of the splash was short when the nozzle was pointed downwards. The distance of the diverted white wash must depend on the circumstances when the clearing took place. Mr Law's demonstration did not conclusively prove that the white wash could only travel the distance as shown in the demonstration and no more. I find that when the Plaintiff was unblocking the gun with his pin, the pin or his fingers caused the white wash to be diverted and splashed to his eye. I do not find that the Plaintiff was pointing the nozzle to himself when he cleared the gun. This is a dangerous move and I accept the Plaintiff was aware of such a danger.

10. The idea that the white wash hit the wall and then rebound to the Plaintiff's eye can be discounted. Although this allegation was raised in Statement of Claim, it was not pursued by the Plaintiff in his evidence.

What was the cause of the accident?

The blockage

11. Regarding the blockage of the nozzle, Dr Green's view is that the gun should be cleared after use because materials may be deposited inside the gun causing it to be blocked. Mr Lam, Counsel for the Plaintiff, argued that since the blockage occurred shortly after the gun was used on its first day, this was an indication that the gun might not have been cleaned after its previous use. The gun was provided by the 1st Defendant. However, the white wash on the day of the accident was mixed by the Plaintiff or by his father who was assisting him. The blockage of the nozzle may well be caused by the presence of particles in the white wash. As such, I do not consider that the blockage of the nozzle could be attributed to a failure of duty on the part of the 1st Defendant.

The lever and the valve

12. I have already found that the pump was still on when the Plaintiff proceeded to clear the nozzle. The lever of the gun was used to control the valve. When the lever was depressed, the valve would open allowing white wash to come out from the tip of the nozzle. I am satisfied that the Plaintiff had not depressed the lever either by using his hands or his foot while clearing the gun. Mr Law in his cross-examination said that in his 15 years' experience as a safety consultant he had once seen a worker using his foot to depress the lever while clearing the nozzle. It is not suggested that the Plaintiff had in fact adopted such an approach and I do not find that this had happened.

13. The next question is whether the lever might have been accidentally depressed. The experts agreed that one would require two pounds of force to depress the lever. Dr Green said that the lever might have been accidentally depressed when the end of the gun was wedged between two objects. Mr Law, however, said that because of the presence of the rubber hose connected to the end of the gun, the lever was unlikely to be depressed even if the end of the gun found its way to the gap between two objects. While I accept the Plaintiff's evidence that the gun did not have a guard, I think the chance of the lever being depressed in such a manner was so remote that one can discount this suggestion. Even if the lever was loosened, I accept Mr Law's evidence that one would have to apply the lever to a greater length before the valve can be opened.

14. If the opening of the valve was not caused by the depression of the lever, Dr Green suggested that the valve could only have been kept open by an obstruction between the tip of the ball and the seat inside the valve. This would prevent the valve from closing but would at the same time allow the white wash to continue to flow. This is an extremely remote possibility. The obstruction between the ball and the seat of the valve would preclude white wash from going through the valve. I would discount this possibility.

Res Ipsa Loquitur

15. This is a case where res ipsa loquitur applies. Megaw L.J. in Lloyde v. West Midlands Gas Board [1971] 2 All ER 1240 held that :-

"I think it is (i.e. res ipsa liquitur) no more than an exotic, though convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where : (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety."

16. Chau Chak Hung v. Lok Kwok Sum and others (High Court Action No.A6355 of 1987) is an illustration of how this principle was applied.

17. In the present case, even if the pumping machine was still on, the white wash would not have come out if the valve had remain closed. The Plaintiff cannot prove precisely what was the cause of the opening of the valve, but the evidence is more likely than not that it was the 1st Defendant's act or omission which caused the valve to remain open and hence resulting in the white wash coming out from the nozzle - the gun belonged to the 1st Defendant, it was kept by Mr Yeung, the supervisor, in his goods vehicle, the Plaintiff only used the gun on the day of the accident and there was no evidence that the Plaintiff had in any way tampered with the gun.

The duty of an employer

18. The standard of an employer's duty towards its employee is to see that reasonable care is taken; the scope of that duty extends, inter alia, to the provision of safe equipment and a safe system of work. I find that the Defendant had failed to provide a safe equipment to the Plaintiff.

Safe system of work

19. Apart from providing safe equipment, an employer must provide a safe system of work to the worker. In this case, the 1st Defendant must give proper instructions to the Plaintiff as to how the gun should be cleared when blocked. The Plaintiff said that the Defendant had never given him any instructions as how to operate the gun or how to clear the blockage. The Plaintiff said that the practice was to clear the blockage by a pin. He also said in his evidence that if this was not successful then he would remove the nozzle and wash it in water.

Mr Chow's Evidence

20. Mr Chow of the 1st Defendant said that he left to Mr Yeung, the supervisor of the site, to instruct the workers on the safety instructions of the use of the gun.

21. Although Mr Chow initially stated that the standard procedure for clearing the blockage of the gun was to remove the nozzle and use a pin to remove the blockage in clear water, he conceded that one could use the pin to clear the blockage after the pump was turned off, and it was only after this was unsuccessful then the nozzle should be removed and cleared. He retracted from his earlier suggestion that it was a lazy worker who would adopt this particular method.

Mr Ceung's Evidence

22. Mr Ceung said that on the day before the Plaintiff started work, he and the Plaintiff took to the site the gun and other equipments including goggles, nose mask and a straw hat which was used to shield the mist shower of the white wash. On the next day, when he met the Plaintiff at the site, he gave him 1½hours of instruction and demonstration as to how to use the gun. He also instructed the Plaintiff how to clear the blockage, namely by stopping the machine, removing the nozzle, then clearing the blockage. He claimed that the work was to be carried out in the middle part of the floor. He denied that he had instructed the Plaintiff to work in the staircase.

23. I do not find Mr Ceung to be a credible witness. His evidence is not satisfactory. The impression one gets from his evidence in chief is that the demonstration and instruction were given on the same day of the accident. In his evidence-in-chief, Mr Ceung said that he left the Plaintiff around lunch time after the demonstration and instruction and on the next day he heard of the accident. On the second day of his evidence, Mr Ceung said, under cross-examination, that he did not meet the Plaintiff on the day of the accident. The Plaintiff had the accident one day after the instruction and demonstration and he heard of the accident on the next day of the accident. In his first witness statement filed in January 1996, Mr Ceung appeared to have said that the accident occurred on the same day as he gave the instruction and demonstration to the Plaintiff.

24. At one stage I had considered that this discrepancy may well due to a matter of forgetfulness as a result of the lapse of time. However after reviewing the whole of Mr Ceung's evidence and in the light of what the Plaintiff said, I come to the conclusion that the unsatisfactory nature of Mr Ceung's evidence was not due to mere forgetfulness but rather a deliberate attempt of not telling the truth. If the events took place as suggested by Mr Ceung, I have no doubt that the Plaintiff would be cross-examined on this issue, namely he was given instruction and demonstration of up to 1½ hours by Mr Ceung. Despite the very lengthy cross-examination of the Plaintiff, no such suggestion was ever put to the Plaintiff. Furthermore, Mr Ceung had seen the Plaintiff used the gun before and according to him, the Plaintiff's work was acceptable. I find it extremely odd that he should use 1½ hours to do the demonstration and instruction. I find that no instruction or demonstration was given to the Plaintiff.

Goggles

25. The Plaintiff said that no goggles were provided during the operation. He had never seen any painting worker wearing goggles.

26. Mr Ceung maintained that he had provided goggles to the Plaintiff and he said that on previous occasions when the Plaintiff used the spraygun, the Plaintiff would use goggles. Apart from using a straw hat with a wide brim which would shield off the misty shower of the spray, the workers would wear goggles unless they wear spectacles.

27. In this regard, I accept the Plaintiff's evidence that on the day of the accident he was not provided with goggles, all that he had used was a straw hat. Although he did not explain the purpose of the straw hat, it is clear from the evidence that the straw hat was worn to shield off the misty showers.

28. The parties carried out a testing of a spraygun in the course of the trial. Mr Ceung purchased new goggles and nose mask for the testing. He said when the pumping machine was taken from the storeroom of the 1st Defendant, he did not see any goggles in that storeroom. I think the point is simply that the 1st Defendant had not taken into regard the safety of wearing goggles. Goggles were not provided to the workers and they had not instructed the workers to wear goggles.

Statutory duties

29. Under the Factories and Industrial Undertakings (Protection of Eyes) Regulations, the 1st Defendant, (Miss Lau conceded that the 1st Defendant was a proprietor within the meaning of the Regulations) must "provide approved eye protectors to the Plaintiff" (Regulation 5) and "take all reasonable steps to ensure that every person for whose use he so provides eye protectors or a shield or a fixed shield, as the case may be, makes full and proper use of the same." (Regulations 7(b)). The operation of the Plaintiff fell within Item 6 of the Schedule which was the handling or manipulation of alkalis or dangerous corrosive materials which were injurious to the eyes. No goggles were provided and the 1st Defendant was in breach of the Regulations.

Causal connection

30. It was argued that the employer was not in breach of any duty of care because the Plaintiff himself knew of the danger of clearing the nozzle while the pump was still on and no useful purpose would be achieved by the employer instructing the Plaintiff to turn off the pump before he clear the nozzle. The same argument was raised in relation to the provision of goggles to the Plaintiff.

31. Miss Lau, relying on McWilliams v. Sir William Arrol & Co. Ltd. [1962] 1 WLR 295, submitted that the Plaintiff must establish not only the breach of duty but also the causal connection between the breach and the injury. In that case, arguments were raised that the employer had not provided the employee with safety belt or instructed him to do so. Viscount Simonds held that :-

"Let it be assumed that they were in breach of their duty in not providing a safety belt on the day of his accident and, further, that if he had then been wearing one, the accident would not have occurred. Yet there is a missing link : for it was not proved that the deceased was not wearing a belt because it was not provided; and alternatively, if any question of onus of proof arises, it was proved that if one had been provided, the deceased would not have worn it."

32. On the question of instruction Lord Hodson at page 307 held that :-

" 'Instruct' is an ambiguous word. It may mean provide information or it may mean give orders. Here it is admittedly intended to mean exhort or encourage. It was quite unnecessary to give the deceased information : the device was not new, he was no novice, and the work he was doing was his ordinary work."

33. In Bux v. Slough Metals Ltd. [1974] 1 All ER 262 an employee claimed damages for breach of the employer's statutory duty to provide suitable goggles and for negligence. The Court of Appeal held that in every case it was a question of fact whether the statutory duty was co-extensive with, or more or less extensive than, the common law duty. Stephenson L.J. held that :-

"I also agree with the judge that, on a balance of probability, the absence of any such system caused the accident - in part. The burden of proving that the employers' breach of duty caused his accident is, of course, on the plaintiff, whence it follows that he must prove that he would have worn goggles and so prevented the accident if the employers had done their duty. Though the Plaintiff was not asked whether he would have worn them, he could hardly have been expected to answer, 'No', if he had been asked; and the judge, who saw and heard him and rejected much of his evidence, found that he was not the type of man who would have disregarded instructions if they were given personally and in a reasonable and firm manner, and were followed up by supervision. If this Pakistani had been told, in anything like the terms which I have already suggested would have complied with the employers' duty, that the law of the strange land in which he was working was that he must wear them, this finding by the judge leads inevitably to the conclusion that the plaintiff would have worn them."

In that case, goggles were provided to the employee who try them for a few days but found that they hampered his work because they misted up every three to four minutes. The Court of Appeal find that the employer was 40% to blame for his own breach of statutory regulations which required an employee to wear the protection equipment.

34. In Boyle v. Kodak Ltd. [1969] 1 WLR 661 argument was raised that if the employer had given instructions pursuant to statutory duty, the employee would not have observed them and therefore failure to give instructions was not a cause of the accident. The House of Lords held that there was no evidence to show that the appellant would have disobeyed any instruction given to him. That was a case where no negligence was proved and the issue was simply on the breach of the statutory duty. At page 667, Lord Reid stated that :-

"It may be that neither the respondents nor their foreman knew that the work was being done in this way. But ought they to have realised, if they had given thought to the matter, that there was a substantial risk that a skilled workman would not be sufficiently familiar with the regulations to know that this method involved breach of the regulations? If they ought to have realised that, then it was plainly their duty to instruct the man as to what he ought to do in order to avoid a breach. They would be quite entitled to trust him to do what he had been told to do."

The liability was apportioned at 50/50.

35. In the present case, the Plaintiff was no doubt an experienced painter and had used sprayguns before. However, his method of clearance may well be wrong. The evidence clearly showed that no one from the 1st Defendant had instructed him how to deal with the clearance or to wear goggles. If the instruction was clearly that the pumping machine must be turned off first before the nozzle was to be cleared and that goggles must be worn and if the Plaintiff expressly disobeyed this instruction, then the 1st Defendant's liability could not have arisen. In the absence of such evidence, the 1st Defendant must have failed in its duty of providing a safe system of work for the Plaintiff.

Liability of the 2nd Defendant

36. The 2nd Defendant was the main contractor responsible for the construction work at the site. Regulation 43 of the Construction Sites (Safety) Regulation provides that :-

"The contractor responsible for any construction site, where there is carried on any process which results in particles of material or dust being produced in such a manner as to be likely to enter or damage the eyes of any workman engaged in the process, shall ensure that :-

(a) suitable goggles or effective screens are provided for the protection of the workman; and

(b) the workman uses the goggles or screens, as the case may be."

37. The spraying operation of the whitewash is a process which results in particles of material being produced in a manner to be likely to enter or damage the eyes of the employee. I find that no goggles were provided to the Plaintiff. Furthermore, under Regulation 43, the 2nd Defendant's responsibility is more than merely to provide goggles, it must ensure that the worker uses the goggles. There is no evidence adduced that steps have been taken by the 2nd Defendant to ensure that the Plaintiff would use goggles.

38. Mr Lam further relied on Regulation 52 which provides that :-

"Materials kept on construction sites

(1) The contractor responsible for a construction site shall ensure that all platforms, gangways, floors, or other places on the site used as passageways are kept clear of any loose materials which are not required for immediate use.

(2) The contractor responsible for any construction site where materials are being kept or stored shall ensure that they are not -

(a) insecurely stacked in a place where they may be dangerous to workmen employed at the site; or

(b) stacked in such a way as to overload and render unsafe any floor or other part of a building or structure on the site."

39. I find that there were materials in the staircases as described by the Plaintiff. The material obviously obstructed his work. However, having found that the 2nd Defendant was liable under Regulation 43, it is not necessary for me to form a concluded view on the application of Regulation 52.

Contributory negligence

40. I find the Plaintiff was contributory negligent in failing to turn off the pump before he cleared the nozzle. It is plain that he realised the consequence of not turning off the pump. If the pump had been turned off, even if the valve was kept open, static pressure would not be built up in the gun by the blockage of the nozzle and there would not be a great outflow of whitewash with force when the blockage was cleared. Mr Lam relied on Lam Fong v. So Hoo Yuen trading as Wui Loong Scaffold & Watched Builders (High Court Action No.7572 of 1984, Judgment dated 8th June 1990) in which Bokhary J. (as he then was) held that :-

"True it is that the deceased was still at least at some fault for not wearing one, but - in addition to the absence of such instructions - there is this consideration : By not providing safety belts of a type and in numbers which would have enabled each and every worker to wear - and make proper use of - one, the 1st Defendant must have lowered safety consciousness in general - and 'safety belt consciousness' in particular - on site."

The degree of contributory negligence depends on the facts of a case. Recognising the failure to instruct the Plaintiff to turn off the pump may have lowered the safety consciousness of the Plaintiff, I find that the appropriate apportionment of liability in the present case to be 40% by the Plaintiff and 60% by the Defendants. Miss Lau did not seek apportionment of liability between the Defendants.

Employment

41. There is a matter I need to deal with. Mr Yeung said that the painting work was sub-contracted to the Plaintiff and hence he (Mr Yeung) was not required to supervise the Plaintiff's work. The Notice by Employer lodged by the 1st Defendant pursuant to the Employees' Compensation Ordinance clearly stated that the Plaintiff was an employee of the 1st Defendant. The Defence admitted that the Plaintiff was an employee of the 1st Defendant at the time of the accident. Mr Chow, one of the partners of the 1st Defendant, confirmed that the Plaintiff was the employee of the 1st Defendant both in his witness statement and in his evidence. During the cross-examination of the Plaintiff, Miss Lau asked the contractual relationship between the parties, and she sought leave to withdraw the admission of employment relationship. The proposed amendment did not put forward a positive case of some other relationship but merely not admitting that the Plaintiff was an employee of the 1st Defendant. No reason was advanced why the admission was made in the first place and the application to withdraw the admission was refused by me. Despite what Mr Ceung said about the work being sub-contracted to the Plaintiff, this remained to be a non-issue in this case.

Injury

42. The white wash contained alkaline which was a corrosive substance. The medical evidence showed that on 9th November 1990 the Plaintiff was found to have a large corneal ulcer. The ulcer was subsequently healed resulting information of a vascularised corneal scar. The visual acuity of the right eye is 3/60. When he was examined by Dr Tsui Chung Wan on 9th October 1992 it was found that :

"Slit Lamp examination revealed in right cornea, there was diffuse anterior stromal opacity, obscuring the visual axis. The over-laying corneal epithelium was intacted on fluorescein staining but showed out mild irregularity. Vascularized pannus was present, especially over the superior part of the cornea and limbus. The anterior chamber was deep and quiet. The fundus examination was normal. The left eye examination was normal.

Visual acuity test revealed vision right eye 3/60, left eye 6/6 unaided, with no improvement on pinhole or spectacles. Near vision of left eye was normal while right eye was very poor."

Visual disability was assessed at 90% in the right eye.

43. The Plaintiff was further examined on 18th July 1995. Dr Tsui's finding was :

"Ophthalmic examination shows no obvious scars and eyelid abnormality. Slit Lamp biomicroscopy reveals in right cornea diffuse anterior and middle stromal opacity involving visual axis. The corneal epithelium shows irregularity with patches of calcification lying horizontally, indicating presence of band keratopathy. Vascularized pannus is present, especially over the superior part of cornea and limbus. The anterior chamber is deep and quite. The fundus examination is essentially normal. The left eye is normal."

There was no improvement over the past three years, but band keratopathy developed gradually on the diseased cornea. The Hospital Authority of Ophthalmic Unit had suggested the Plaintiff to undergo a cornea transplant, but he was reluctant to have the operation.

44. Dr Tsui in his latest report of 18th December 1996 explained that the Plaintiff has been suffering from right eye recurrent cornea epithelial erosion, which is a well known complication after any kinds of cornea injury. Basically the cornea is composed of five layers. The superficial layer, cornea epithelium and the second underlying layer, Bowman's membrane is connected by cellular connections - desmonsomes. These connection are broken down during the cornea injury so that the cornea epithelium can be more easily scratched away from the underlying layer. This usually occurs in the morning because when one sleeps, the eyelid will cover the cornea, and if adhesion between eyelid and cornea epithelium occurs, and when one opens eye, the eyelid will scratch away cornea epithelium from the Bowman's membrane, which then causes pain, tearing, redness and discomfort. The situation is made worse in the Plaintiff's case since the band keratopathy and the irregularity of the cornea epithelial surface are more prone to recurrent cornea epithelial erosion.

45. Dr Tsui also said that the most unfavourable prognostic factor in the Plaintiff's case is the presence of vascularized panus in the cornea. Cornea transplant normally fails because of rejection. This is caused by cellular mediated immune response. In the presence of blood vessels, the antibodies and white cells will be more easily to reach the donor cornea so that rejection is more prone to occur. This makes the successful rate of cornea transplant as low as 40%.

46. The Defendants have not argued that the Plaintiff should mitigate the damage by the transplant. In any event, in view of Dr Tsui's evidence, I find it reasonable for the Plaintiff not to undergo the transplant.

Pain, suffering and loss of amenities

47. In the Schedule of Damages, the Plaintiff claimed damages for pain, suffering and loss of amenities in the sum of $420,000. This will make the damage fall within the serious category of injury. This sum was conceded by the Defendant. Mr Lam now claims that the Plaintiff's injury lies in the top end of the serious statutory and a sum of $540,000 is appropriate. He relied on the case of Wong Wan Tak v. Suen Yiu Pan trading as Chiu Kee Sawmill (Civil Appeal No.61 of 1991).

48. My view is that if the Plaintiff has particularised the damage in the Schedule of Damages which was accepted by the Defendant, in general the Plaintiff should not be allowed to seek a higher sum. Certain consequences will flow from the quantification of the Plaintiff's damages and the Defendants' response to it such as the payment into court by the Defendants. Unless special circumstances exist which will justify the Plaintiff seeking a higher sum, the figures set out in the Schedule of Damages should be observed. In any event, I do not find that the injuries in the present case fall within the top end of the serious injury category. The injury in the Wong Wan Tak case was far more serious.

Loss of earning

49. Prior to the accident, the Plaintiff had been working as a painter and plasterer at construction sites for 11 years. He worked 26 to 28 days a week. At the time of the accident his earning was $400 per day. After the accident, he was granted sick leave from the date of the accident to 7th February 1991 and from 1st March 1991 to 22nd March 1991, totalling 113 days. About half month after the sick leave, he resumed work as a painting worker in interior decoration work in domestic and office premises. On average, he could only manage 15 working days per month. This is because he find it difficult to work as much and as efficiently as before the accident. He described that his right eye would become painful at around 4 p.m. each day, he said the pain was like being bitten by ants, he could not see with his right eye. He could not work in construction sites because nobody would employ him by reason of his injury. Whereas a painter would be required to do all types of painting work such as painting white wash or emulsion paint and also fixing wall paper, he could only now do the basic work such as cleaning the wall and plastering the wall. He could not fix the wall papers because he could not match the patterns. In respect of the use of emulsion paint, because of his eye sight he could not give quality work, materials were left on the wall like tear drops and he would leave gaps between the brushes.

Evidence of two friends

50. In 1991 and 1992, the Plaintiff had asked for work from two friends, namely Mr Chung and Mr Chan, who have known the Plaintiff when they were living in China. Mr Chung and Mr Chan confirmed that the work performed by the Plaintiff was not satisfactory. In relation to wall papering, there were gaps between two pieces of paper, the pattern did not match. In respect of painting work, there were omissions and uneven paint. Both of them only asked the Plaintiff to handle only the coarse work such as chipping or plastering which were done at the initial stage of the painting work. Mr Chung said that for each unit of work the Plaintiff could only work for three to four days. The work deteriorated in the evening when there was insufficient light. The Plaintiff had to take afternoon off because of the problem with the eye. Mr Chan also confirmed that the Plaintiff could only work for three to four days or four to five days in a project.

Mr Yeung's evidence on employment

51. Mr Yeung said that after the accident, in the year 1991 to 1992, the Plaintiff worked for him in many projects. Mr Yeung was very busy at that time and the Plaintiff worked on average 24 days in a month. When the Plaintiff was doing the Yaohan Project in Macau, he also worked 24 days a month. He claimed that the injury of the Plaintiff had no effect on his work.

Wages

52. From March 1991 to October 1991, the Plaintiff's daily wage was $400. From November 1991 to October 1992, the daily wage was $450. From November 1992 to October 1993, the daily wage was $500. From November 1993 to October 1994, the daily wage was $550. From November 1994 to October 1995, the daily wage was $600. From November 1995 to October 1996, the daily wage was $550, the current wage was $70 per day.

Working days

53. In the original Statement of Claim filed on 3rd February 1994, it was pleaded that the Plaintiff's sick leave expired on 22nd March 1991 and the Plaintiff returned to work thereafter. The Plaintiff took work as a painter in decoration works earning $400.00 per day but was only able to work for approximately 15 days per month. Since around July 1992 the Plaintiff's daily wage was increased to $450.00 and the Plaintiff worked for approximately 20 days per month.

54. On the first day of the trial, the Plaintiff substituted 15 days instead of 20 days in respect of his working days. The Plaintiff was cross-examined on the number of days he worked after the accident. It was suggested that he had continued to work for Mr Yeung in various projects. He agreed that he had worked for Mr Yeung in a decoration project in Macau. It was a job given to him by Mr Yeung as a gesture of goodwill. He said that he came back to Hong Kong for weekends and took sick leave in Macau. He maintained that he worked for 15 days per month and he denied that he had given instructions to his lawyers that he had worked for 20 days per month.

Solicitor's evidence

55. Mr Steve Wong the Plaintiff's solicitor was called to give evidence. The attendance note of 6th April 1992 stated that the number of working days of the Plaintiff dropped from 26 to 15-16days since he worked as decoration worker and not on construction sites. He said that the Plaintiff gave him instructions on 14th September 1992 that he was working for 20 days. Under cross-examination, he was asked to refer to his attendance note which recorded that the Plaintiff was then engaged in a project in Macau. He worked for 20 days per month and previously he worked for 15 days. The Plaintiff complained that his right eye was still having pain and getting tired. On 30th April 1993, Mr Wong saw the Plaintiff again and according to his attendance note the Plaintiff said that he had returned from work from Macau, he was doing odd job labourer in construction sites earning $8,000. He was working 15 to 16 days per month. On 19th August 1994 the Plaintiff said that he could only work 10 to 15 days per month since the accident. When he was looking for a job he would be refused by the employers. On 26th July 1995, the attendance note stated that the Plaintiff was earning $600 a day, 15 days a month. The attendance note of 7th August 1995 stated that the Plaintiff worked for 15 days per month. On 30th April 1993, the Plaintiff informed him that he was working for 15 to 16 days per month and subsequently the Plaintiff said that he worked for 15 days. Mr Wong said that the Plaintiff also provided some notes to him. The notes stated that between 27th March 1991 to 30th October 1991, he was earning $400 per day at 15 days per month, totalling eight months. 1st November 1991 to 30th October 1992, $450 per day, 15 days per month, totalling twelve months. 1st November 1992 to 30th October 1993, $500 per day, 15 days per month, totalling 12 months. 1st November 1993 to 31st October 1994, $550 per day, 15 days per month. 1st October 1994 to 31st October 1995, $600 per day, 15 days per month.

Finding of the Plaintiff's working days

56. My finding from the evidence is that apart from a period of three months when the Plaintiff worked in Macau, he was working 15 days per month. I accept his evidence that because of his injury to the eye he was no longer able to work in construction sites, namely sites where a building was under construction. Instead he had to work on decoration projects. I accept his evidence that he could not perform quality work because of the eye problem. I have no doubt that this reduced the number of days in which he could work. During the three months period when he was working in Macau, I find that he was working 20 days per month. This is consistent with his instructions to Mr Steve Wong. The pre-accident average working day per month is 27 (i.e. median of 26 and 28 days).

Loss of past earnings

57. The Plaintiff's loss of earnings from the date of accident 9th November 1990 to the last date of trial 14th January 1997 is calculated as follows :-

9.11.1990 - 31.3.1991	HK$400 x 27 days x 4 2/3 months = HK$48,600
1.4.1991 - 30.10.1991	HK$400 x (27-15) days x 7 months = HK$33,600
1.11.1991 - 30.10.1992	HK$450 x (27-15) days x 12 months = HK$64,800
1.11.1992 - 30.10.1993	HK$500 x (27-15) days x 12 months = HK$72,000
1.11.1993 - 30.10.1994	HK$550 X (27-15) days x 12 months = HK$79,200
1.11.1994 - 30.10.1995	5 HK$600 x (27-15) days x 12 months = HK$86,400
1.11.1995 - 30.10.1996	HK$650 x (27-15) days x 12 months = HK$93,600
1.11.1995 - 14.1.1997	HK$700 x (27-15) days x 2.5 months = HK$21,000

The Plaintiff's pre-trial loss of earnings is in the total sum of HK$501,036. Credit must be given of the 20 working days of the 3 month period in 1992. The difference between 12 (27-15 days) and 7 (27-20 days) is 5 days.

$450 x 5	=	$2,250
$450 x 5	=	$2,250
$500 x 7	=	$3,500
		$8,000
		======
($501,036 - 8,000)		$493,036

Loss of future earning

58. In view of his handicap, I find that the Plaintiff can work on average of no more than 15 days a month in the future. The Plaintiff is now aged 36. A multiplier of 12 is agreed between the parties. The multiplicant is HK$700 x (27 - 15) days x 12 months = HK$100,800. The Plaintiff's future loss of earning is $100,800 x 12 = HK$1,209,600.

Loss of earning capacity

59. The Plaintiff in his Schedule of Damages seeks loss of earning capability in the sum of $100,000. This sum is agreed by the Defendant. The Plaintiff now seeks loss of earning capability representing two years of his employment or $252,000. In Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650, it was held that an award for loss of future earnings on a partial basis did not preclude an additional award for loss of earning capacity where there was evidence to show that it would take the plaintiff as a disabled man longer to find replacement employment than an able-bodied man. An award of HK$15,000 was made.

60. Although an award for loss of earning capacity was disallowed in King Light Industrial Ltd. v. Lo Wai Keung [1994] 3 HKC 54 where the trial judge also gave an award for partial loss of future earning, it is clear from Lau Che Ping that it is not wrong in principle to award damages for handicap in the labour market to a Plaintiff who is awarded damages for future loss of earnings, see also Frost v. Palmer [1992] PIQR p.14. In the present case, as the Defendants agreed $100,000 should be awarded for loss of earning capacity, this is awarded accordingly.

Conclusion

PSLA	$420,000
Past loss of earning	$493,036
Future loss of earning	$1,209,600
Loss of earning capacity	$100,000
Special damage (agreed)	$8,068
	$2,230,704
60% thereof	$1,338,422.40
Less Employee's Compensation	$176,651
	$1,161,771.40
	===========

 

61. There shall be judgment to the Plaintiff in the sum of $1,161,771.40. Interest at 2% per annum for pain, suffering and loss of amenities is awarded from the date of the service of the writ to the day of judgment. Interest at 6% per annum from date of accident, namely 9th November 1990 to date of judgment in respect of past loss of earnings and special damages. There shall be cost nisi of the action to the Plaintiff.