CHOW CHEUNG CHING v. RIGHT BASE CONSTRUCTION & ENGINEERING CO. LTD. AND OTHERS

HCPI 742/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.742 OF 2000

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J U D G M E N T

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1. The plaintiff was a construction worker. His left index and middle fingers were cut by an electric circular saw at work. He sued the 1st defendant, his direct employer, and the 2nd defendant, the principal contractor. The trial was on both liability and quantum. The 1st defendant was absent at the trial.

(I) LIABILITY

The accident

2. The plaintiff was an odd job worker at the construction site of Top Slab Bay Tunnel of Airport Express Station, Kowloon ("the Site").

3. On 14 November 1996, at 8 a.m., the plaintiff started work for the day. He worked until 1 a.m. on 15 November. His co-workers were pouring concrete and the time schedule was tight. His supervisor instructed him to cut some wooden strips for his co-workers to sweep the surface of the concrete before it dried up. He used an electric circular saw fixed on a bench to cut the strips from a wooden plank. The bench on which the saw was fixed was placed on uneven ground : there were gravels, debris and iron rods on the concrete ground. The plaintiff was feeding the wooden plank into the saw. As the plank was led in by the saw, he changed his posture slightly, and also his foothold. Just as he changed his foothold, he stepped on something uneven. He lost balance and leant further forward. The glove on his left hand was caught by the moving saw and his left index and middle fingers were cut by the saw.

4. The plaintiff said that at the time of the accident, the saw blade was not guarded. He was quite tired by reason of long hours of work. He was not in the carpentry trade but had learnt to use the saw by observation and experience. The 1st defendant had given him no instructions as to operation or safety.

5. The 2nd defendant did not call any witness. There was not much dispute as to how the accident occurred and I accept the plaintiff's evidence as above.

Breach of statutory duty

6. The plaintiff alleged that the 1st and/or 2nd defendants were in breach of regulation 10(4) under Part II "Duties of Proprietors" of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations (Cap. 59G) :

"(4) The top of a circular saw shall be covered by a strong and easily adjustable guard, with a flange at the side of the saw furthest from the fence; and such guard shall-

(a) be kept so adjusted that the flange shall extend below the roots of the teeth of the saw;

(b) extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw."

7. Under section 2(1) of the Factories And Industrial Undertakings Ordinance (Cap. 59), "proprietor" means :

"'proprietor' in relation to any industrial undertaking or notifiable workplace includes the person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace and includes a body corporate and a firm and also the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier;"

8. And under the same section, an "industrial undertaking" includes any construction work.

9. The Site was a construction work, and hence an industrial undertaking. The 1st defendant was the person for the time being having the management or control of the business carried on in such industrial undertaking in which the plaintiff was engaged in. Hence, I find that the 1st defendant was a proprietor under the relevant Regulations.

10. Counsel for the 2nd defendant submitted that the 2nd defendant was not a proprietor of the Site. He referred to the judgment of To DJ in Leung Lai Yin v. Yeung Kei Chi t/a Shun Hing Furniture Decorating Construction and anor., HCPI317/1999, which held that the principal contractor was not a "proprietor" as being "the person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace", because the principal contractor did not have management or control over the business of the sub-contractor which the injured person was engaged in.

11. Counsel for the plaintiff submitted that the considerations in Leung Lai Yin were different from the present case :

(a) The decoration work in question was found not amounting to construction work.

(b) The second limb of the definition of "proprietor" i.e., "the occupier of any industrial undertaking" had not been considered.

12. Counsel for the plaintiff referred to HKSAR v. Chun Wo Building Construction Ltd [2001] 3 HKC 5, 10 per Nguyen J and submitted that "proprietor" is not defined under Cap. 59 as such and the so-called definition only tells us who can be included within the definition. Counsel submitted that the 2nd defendant was the principal contractor and an occupier of the Site. As such, it was a "contractor responsible for a construction site" under regulation 2(2)(a) of the Construction Site (Safety) Regulations (Cap. 59I). It would be inconsistent if it were not also a proprietor of the Site.

13. Counsel for the 2nd defendant submitted that "the occupier of any industrial undertaking" was in fact not a second limb of the definition, but it referred to the person for the time being having the management or control of the business carried on in such industrial undertaking who was in actual occupation of such industrial undertaking.

14. With respect, I do not think the interpretation suggested by counsel for the 2nd defendant can be right :

(a) The phrase "the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier;" was prefaced by "and also" and if the occupier only means the person having the management and control of the business, it will render the inclusion of an occupier otiose.

(b) The definition of "proprietor" was inclusive rather than exhaustive and any interpretation should be liberal and purposive rather than restrictive.

15. I find the 2nd defendant was a proprietor of an industrial undertaking under the Factories And Industrial Undertakings (Woodworking Machinery) Regulations by reason of being an occupier of the Site.

16. I also find that there was a breach of regulation 10(4) by reason that the electric circular saw operated by the plaintiff was unguarded. Both the 1st and 2nd defendants were in breach of such statutory duty.

17. Counsel for the 2nd defendant submitted that even if there is a breach of regulation 10(4), it was not the cause of the plaintiff's injury because the plaintiff's fingers were dragged into the cutting edge of the saw and, ipso facto, the cutting edge itself could not be guarded.

18. Regulation 10(4)(b) provides that "the guard shall extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw" (emphasis added). The onus is on the 2nd defendant to plead and prove any case of reasonable practicability (see Bowes v. Sedgefield DC [1981] ICR 234, CA). The fact is that had there been in place such a guard in compliance with the regulation, it would have prevented the plaintiff's fingers from being cut. Hence, I find that the accident was caused by the breach of regulation 10(4).

Breach of the common duty of care

19. According to section 3 of the Occupier's Liability Ordinance (Cap. 314) :

"(1) An occupier of premises owes the same duty, the 'common duty of care', to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-

(a) ...; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

20. Counsel for the 2nd defendant submitted that the test for liability of the occupier is reasonable foreseeability (see Wheat v. E Lacon & Co. Ltd [1966] AC 552). Counsel submitted that the plaintiff said it would have taken him a relatively short time in clearing up the debris and making the ground even before he used the saw, and he did not do so because he was in a hurry to race against time before the concrete dried up. It implied that the plaintiff was aware of the unevenness of the ground. Hence, it was reasonably foreseeable by the 2nd defendant that a visitor in the capacity of a worker of a sub-contractor would clear up any danger before using the ground, and it was not reasonably foreseeable that the visitor would in fact not do so. Counsel submitted that the neighbour did not enlarge the occupier's duty to care for his safety by neglecting it himself.

21. Counsel for the plaintiff submitted that the duty of care depended on all the circumstances of the case. He referred to the dictum of Lord Wright in Caswell v. Powell Duffryn Associated Collieries [1940] AC 152, 178-9, cited by Ribeiro JA (as he then was) in Mak Woon King & Mak Lai Cheung, etc v. Wong Chiu t/a Wong Chiu Kee Timber, CACV56/2000 :

"What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what is actually doing at the costs perhaps of some inattention to his own safety."

22. I note that the above passage was said in the context of contributory negligence. But I find it helpful in considering the argument of the 2nd defendant that its duty of care was to be gauged on the premise that he could expect the plaintiff to take care of himself. With the utmost respect, I find the argument of the 2nd defendant so contrived as to shift the blame on the neighbour whom it owed a common duty of care, and I cannot accept it.

23. There is no dispute that the 2nd defendant was an occupier of the Site. The circular saw was on the Site. The 2nd defendant never imposed any restriction on anyone on using the circular saw. I find that the control of the 2nd defendant over the Site imposed on it a common duty of care towards persons coming onto the Site and using the machine within the Site. I find that the 2nd defendant was responsible for the dangerous state of the ground upon which the bench affixed with the circular saw stood, and he was in breach of his common duty of care towards the plaintiff.

Breach of employer's duty

24. The 1st defendant was the direct employer of the plaintiff. As such, he is under a duty to provide and maintain a safe system of work including adequate instructions and supervision, to provide and maintain safe and adequate plant and equipment, and to provide and maintain a safe place of work. The employer's duty to his employees is personal and non-delegable (Wilson & Clyde Coal Co. Ltd v. English [1938] AC 57).

25. One important factor in the present case is that the plaintiff was assigned to work long hours in uncongenial environment of a tunnel. Further, he was given work instruction which was normally outside his trade and he had to race against time in coordination with assignments of his co-workers. In all the circumstances including those mentioned before, the 1st defendant must be in breach of the employer's duty of care towards an employee.

Contributory negligence

26. Counsel for the 2nd defendant submitted that the plaintiff was liable for 50% contributory negligence while the plaintiff denied any such liability.

27. According to the dictum of Lord Denning in Davies v. Swan Motor Co. (Swansea) Ltd [1949] 2 KB 291, 326 as cited by Mortimer VP in Siu Chi Moon v. Rainfield Design & Associates Ltd [1999] 2 HKC 306, 315 :

"While causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless the amount of the reduction does not depend solely on the degree of causation. The amount of reduction is such an amount as may be found by the court to be 'just and equitable', having regard to the claimant's share in the responsibility for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

28. I also bear in mind the dictum of Ribeiro JA in Mak Woon King & Mak Lai Cheung (op. cit.) :

"It is therefore clear that where a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that the employee contributed casually to the accident by his own momentary inadvertence or lack of care, if in the context of a repetitive, distracting or fatiguing work environment, may well be regarded as an 'excusable lapse' and not as contributory negligence at all : per Lord Reid in (Stavely Iron Chemical Co. Ltd v. Jones [1956] AC 627, 642.) The above mentioned principle has been extended to apply to the process of apportioning liability where the employee is found guilty of some contributory negligence. The principle operates to lessen the percentage by which the award is reduced. This was acknowledged by Sachs LJ in Mullard v. Ben Line Steamers [1970] 1 WLR 1414, at 1818, as follows :-

'... What happened was indeed exactly of the nature intended to be guarded against by the precautions prescribed by the regulations; and when a defendant's liability stems from such a breach the courts must be careful not to emasculate those regulations by the sidewind of apportionment. Moreover, the more culpable and continuing the breach of the regulation, the higher the percentage of blame must fall on the defendant.'

Such approach has been adopted by this Court in Li Man Yuen v. Li Chung t/a VF Electric Manufacturing Co. [1991] 2 HKC 230."

29. In considering the question of contributory negligence, I shall bear in mind the following factors :

(a) There has been a breach of regulation 10(4) in relation to the failure to guard the circular saw.

(b) There has been breach of occupier's liability in relation to the presence of dangerous debris on the ground upon which the bench affixed with the circular saw was situated.

(c) The plaintiff was tired as a result of having worked long hours in the difficult environment of a tunnel.

30. I find that the slipping of the footage of the plaintiff was at most a momentary inadvertence and he should not be liable for any contributory negligence.

Apportionment of Liability between the 1st and 2nd defendants

31. According to section 4(1) of the Civil Liability (Contribution) Ordinance (Cap. 377) :

"Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

32. Counsel for the 2nd defendant submitted that the 1st defendant should bear 90% of the blame.

33. Both the 1st and 2nd defendants have responsibility as to the guarding of the circular saw as well as to the state of the premises where the sawing took place. However, the 1st defendant, being the direct employer of the plaintiff, carried the responsibility of work scheduling which resulted in the long working hours of the plaintiff and he should bear a bigger portion of the blame. Hence, I hold that the apportionment between them should be 70% to the 1st defendant and 30% to the 2nd defendant.

(II) QUANTUM

The injuries

34. The plaintiff suffered compound fracture to the middle phalanx and severing of tendons and nerves of his left index finger ("LIF") and left middle finger ("LMF"). Emergency operation for internal fixation of the fractures and repair of tendons and nerves was done. He was discharged home on 18 November 1996. He continued to receive physiotherapy and occupation therapy.

35. The recovery of the finger fractures was poor. The plaintiff had six more operations on his left hand :

(a) May 1997 - open reduction and internal fixation of fractures;

(b) November 1997 - volar plate re-attachment for hyper-extension of PIP joint of LMF;

(c) January 1998 - removal of metal implants to release persistent stiffness of the finger;

(d) March 1998 - removal of implants;

(e) October 1999 - joint transplant from 2nd toe of left foot to LMF; and

(f) March 2000 - removal of implants on LMF.

36. Notwithstanding the above, the plaintiff still suffers from the following symptoms :

(a) Numbness and stiffness of LIF;

(b) Deformity, pain and stiffness in LMF; and

(c) Pain over base of 2nd toe of left toe after standing for over 15 minutes.

37. It is suggested by the government doctors that a further operation for fusion of the DIP joint of the LMF be done to relieve pain and stiffness. The plaintiff had lost confidence in the government doctors. Private sector costs ranged from $18,000 as suggested by the expert for the 2nd defendant to $30,000 to $40,000 as suggested by the expert for the plaintiff. Sick leave of three months will be required.

Employment

38. The plaintiff was born on 20 April 1952. He was 45 at the time of the accident, and 50 now. He only had primary education. His pre-accident income was $15,500 per month.

39. The plaintiff was granted the following sick leave :

(a) 15 November 1996 (date of the ac

40. Both experts are of the view that the plaintiff cannot return to the pre-accident job on a construction site. He can take up general non-production work not requiring much exertion of the left hand. He could have resumed working as from July 2000.

Pre-trial expenses

41. The claim for hospital, traveling and tonic food expenses is agreed at $24,698.

Pain, suffering and loss of amenities

42. Counsel for the plaintiff submitted the injuries fell within the top end of the substantial injuries category and suggested the award of $650,000. Counsel for the 2nd defendant submitted the bottom end of the serious injuries category and suggested $400,000.

43. Counsel for the 2nd defendant referred to Leung Lai Yin (op. cit.). There, the plaintiff suffered near amputation of his left index and ring fingers and amputation of the middle finger. He had five operations and was able to return to his original occupation of a carpenter, though at a disability. The injuries were found to fall just below the serious category and an award of $400,000 was allowed.

44. Counsel for the plaintiff submitted there were the following aggravating factors :

(a) The plaintiff also suffered the amputation of the 2nd toe of the left foot and felt some pain upon standing for over 15 minutes.

(b) The plaintiff still suffers from residual pain and stiffness and he requires a further operation for the fusion of the joint of the LMF.

45. I note from the two expert reports that the amputation of the toe only adds marginally to the disability of the LIF and LMF. The plaintiff remains fully mobile. Taking into account the above additional factors, I hold that the plaintiff's injuries fall within the upper range of the serious category and I shall allow an award of $540,000.

Pre-trial loss of earnings

46. There is some dispute as to the pre-trial median wage. Counsel for the plaintiff submitted that the statistics showed that the average daily wage of a casual construction worker had risen from $500 in 1997 to $614.5 today. On the other hand, counsel for the 2nd defendant submitted that the under-employment rate for construction worker had risen from 5.6% in 1998 to 12.5% at the end of 2001.

47. From general experience, I find that a construction worker could hardly expect to work 28 days in a month now. Bearing in mind the rise in the under-employment rate, I consider an average monthly wage of $15,000 at present will be a fair and generous estimate. The pre-trial median shall be ($15,500 + $15,000)÷2 = $15,250.

(a) 15 November 1996 to 14 May 1998

48. This was the first sick leave period. There should be full compensation of $15,250 x 18 months = $274,500.

(b) 15 May 1998 to 20 July 1999

49. This period was before the plaintiff had the toe transplant and was not covered by any sick leave certificate. There was dispute as to how long the plaintiff had worked. Counsel for the 2nd defendant only sought to deduct any actual earnings by the plaintiff. There was no argument for notional deductions.

50. At first, the plaintiff said he had never worked after the accident because he was not able to find any job. However, he was caught out lying upon cross-examination on his previous statements :

(a) In his statement dated 28 May 1999 in support for objection out of time to the amount of Employee's Compensation assessed by the Commissioner for Labour on 26 August 1998, the plaintiff stated that he was unable to object to the assessment earlier because he was busy working.

(b) In his Affirmation filed on 12 October 2000 in support of the application to issue the writ of summons after the limitation period, the plaintiff said he was able to find a job doing light work at construction site in March 1999 and was paid $500 per day but had difficulties in coping with the duties and could only work 13 or 14 days per month and stop working in April or May 1999.

51. The plaintiff said what was stated in his Affirmation was true. Counsel for the defendant criticized that the plaintiff was evasive in disclosing his employment, and invited the court to draw the inference that the plaintiff had been working for the entire period.

52. I find that the plaintiff was not forthcoming with his post-accident employment. However, he was in between two periods of long sick leave. I shall only find that he had worked for two months between March and May 1999, earning $6,750 per month.

53. Hence, the amount for this period shall be ($15,250 x 14 months) - ($6,750 x 2 months) = $200,000.

(c) 21 July 1999 to 6 July 2000

54. This was the period covered by the sick leave for the toe transplant. Counsel for the plaintiff submitted that two more months should be allowed for job hunting. I find that is reasonable. The amount shall be $15,250 x 14 months = $213,500.

(d) 1 October 2000 to 4 June 2002

55. Counsel for the plaintiff conceded that the plaintiff could have worked as a general non-production worker from 1 October 2000. The range of monthly wages for such workers was between $6,000 to $9,000. Counsel for the plaintiff suggested $6,000 and Counsel for the 2nd defendant suggested $8,000. Bearing in mind the plaintiff was able to earn $6,750 per month in March 1999, and his finger conditions had improved though not completely, I shall adopt the notional wage of $7,000.

56. Hence, the amount shall be ($15,250 - $7,000) x 21 months = $173,250.

57. The total pre-trial loss of earnings shall be :

(a)	15 November 1996 to 14 May 1998	$274,500
(b)	15 May 1998 to 20 July 1999	$200,000
(c)	21 July 1999 to 6 July 2000	$213,500
(d)	1 October 2000 to 4 June 2002	$173,250
	Total :	$861,250

58. The claim of 5% MPF entitlement is also allowed. The amount is $861,250 x 5% = $43,063. The total amount shall be $904,313.

Future loss of earnings

59. Counsel for the plaintiff suggested the multiplier of nine and counsel for the 2nd defendant suggested seven.

60. According to Mortimer VP delivering the judgment of the Court of Appeal in Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523, 530B :

"Twelve years is the appropriate multiplier for a man aged 45 for future loss of earnings to the age of 65. For a man aged between 53 and 54 the appropriate multiplier on the same basis would be about seven. However, for a man in the plaintiff's position, doing heavy work on construction sites, a reduction of the multiplier is appropriate to account for inherent risks apart from those associated with his back. In our judgment, the appropriate multiplier in the circumstances of the case is not less than five."

61. The plaintiff in Chan Kam Hoi was a carpenter. His work was the construction and dismantling of formwork. It was heavy work. The plaintiff here was an odd job worker on construction sites. The fact of working in a construction site would expose the plaintiff to a certain degree of physical exertion. I consider a multiplier of seven for his present age of 50 appropriate in the circumstances.

62. I shall adopt the multiplicand of $15,000 as arrived at above, and the notional deduction of $7,000 for the alternative employment. The amount shall be ($15,000 - $7,000) x 12 months x 7 = $672,000.

63. The claim of 5% MPF entitlement is also allowed. The amount is $672,000 x 5% = $33,600. The total amount shall be $705,600.

Loss of earning capacity

64. Counsel for the plaintiff suggested $90,000 and counsel for the 2nd defendant suggested $48,000. Considering the plaintiff is now aged 50, I consider an award of $60,000 appropriate.

Loss of services

65. Under section 20C(4) of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) :

"Where injury is caused to any person by any wrongful act, neglect or default which entitles him to maintain an action and recover damages in respect thereof and which causes any dependant of the injured person to be deprived of his gratuitous services, the action may include a claim for damages by the injured person for impairment of his ability to render such services."

66. The plaintiff said his finger injuries affected his use of a hammer and changing a light bulb. Counsel for the plaintiff submitted a modest sum should be awarded to mark the inconvenience in DIY jobs.

67. I note that the injured fingers are in the non-dominant left hand. I am not satisfied that the injuries were to such an extent as affecting simple maintenance work at home. I shall disallow the claim.

Future medical treatment

68. The dispute is whether the plaintiff should undergo the joint fusion operation in public or private hospital. Counsel for the plaintiff submitted that the plaintiff had had seven operations in the government hospital and it was not unreasonable that he had lost confidence in them for the eighth one and was asking for the alternative. I am satisfied that the claim is made out.

69. There is some disparity in the costs quoted by the two experts. I shall allow the costs of $30,000 as recommended by the expert for the plaintiff. I shall also allow the sick leave pay for three months in the sum of $21,000. The total award shall be $51,000.

Summary

(a)	Pre-trial expenses	$24,698
(b)	Pain, suffering and loss of amenities	$540,000
(c)	Pre-trial loss of earnings	$904,313
(d)	Future loss of earnings	$705,600
(e)	Loss of earning capacity	$60,000
(f)	Future medical treatment	$51,000
	Total :	$2,285,611

70. The plaintiff has received Employee's Compensation in the sum of $332,305. That should be deducted from the damages. The net award is $1,953,306.

Interest

71. Counsel for the 2nd defendant submitted that the interest on special damages should run from the date of the writ instead of the date of the accident because the plaintiff had delayed in bringing the action after the expiry of the limitation period.

72. Counsel for the plaintiff submitted that the plaintiff had not been guilty of any inaction nor was the delay inordinate :

(a) There was only a delay of seven months after the expiry of the limitation period.

(b) At all material times, the plaintiff had been in contact with the Legal Aid Department in pursuance of the Employee's Compensation claim and the delay in the issue of the writ was not due to any fault on his part.

(c) As at the expiry of the limitation period in October 1999, the plaintiff was undergoing the toe transplant.

73. I find that the plaintiff has not been guilty of any inordinate delay and in the exercise of my discretion, I shall not deprive him of the interest from the date of the accident to the date of the writ.

74. I order that interest at half judgment rate be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

75. Subject to costs ordered made previously, if any, the 1st and 2nd defendants shall pay the costs of the action to the plaintiff.

76. The plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations.