WONG WOON HEI v. DICKSON CONSTRUCTION CO., LTD. AND OTHERS

HCPI 521/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.521 OF 2000

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J U D G M E N T

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1. On 22 September 1997 the plaintiff was employed as a painter by the 2nd defendant which was a painting sub-contractor of the 1st defendant, in relation to painting works at the Central Market. The plaintiff was standing on a platform made of a plank standing on two ladders, in order to paint the ceiling of a corridor within the Market. He fell from the platform to the ground and suffered injuries for which he now claims damages.

Evidence

2. The plaintiff gave evidence. He said that he was a master painter with some 20 years' experience and at the relevant time was working for $750 per day. He had been working on the job at the Central Market for about 21 days before the accident. The 2nd defendant provided him with tools and paint, wooden ladders and a wooden platform. They did not provide any safety harness or line, or any safety shoes. No safety officer had talked to him about the work to be done.

3. At the relevant time he was working in a corridor of the Market, outside a fish stall. The floor was then made of concrete and not the tiles shown in the photographs produced to the court. The floor was uneven, and there was water on it.

4. In order to paint the ceiling, he used two A-shaped wooden ladders about 12 or 13 feet high, with a plank between them. They were simple wooden ladders with no rubber stops on the feet. They each had a nylon rope tied between the lower rungs to control the distance between their feet. This would stop the feet from going too far apart but there was nothing to hold the ladders apart in a fixed position. The plank was 10-14 feet long, 8 inches wide and about 2 inches thick. It lay on the top rungs of the ladders which measured about 16 inches by 8 inches. There was nothing to secure the plank to the top rungs. The plaintiff had to climb up the ladder with his bucket of paint and his brush and stand on the plank. The plank wobbled, because of the weight of the person standing on it and because the floor was wet and slippery.

5. At the time of the accident, the plaintiff had placed his bucket on a horizontal bar which supported the fluorescent light tubes in the corridor. With his right hand, he held on to the vertical bar which suspended the horizontal bar from the ceiling. His bucket was at about the same level as his feet or a little lower. He had to reach down and a little bit forward to charge his brush and then bring it up above his head, to paint the ceiling. As he was raising his charged brush he felt the platform shake. He fell off it. He was unable to maintain his grip on the vertical bar, but because he had been holding it with his right hand, he fell to the ground on his left side. He does not know what caused the platform to shake. He did not see anyone underneath it before he fell.

6. The plaintiff said that he had used this type of ladder and plank arrangement before. In some sites he had been provided with aluminum ladders, with a horizontal bar to keep the two ladders a fixed distance apart, rubber feet and a flat platform at the top. He had seen tubular steel platforms before but nothing of that sort was available at the Central Market. He had sometimes been provided with a safety harness before, when working at height, but this depended on the employer at the time.

7. As to the wet floor he said that he had not looked for or asked for a mop, because mopping up was a job for the odd-job worker, not the master painter. He did not know if there was an odd-job worker on site.

8. This is the only evidence. There is no evidence from the defendants.

Causation

9. It is clear from the plaintiff's unchallenged evidence that he felt the platform shake. No one was seen close to it. There is no evidence that the rope between the ladders broke. The floor was wet. The most likely cause of the shaking was the movement of the foot of the ladder or ladders on the wet floor, caused by the motion of the plank as the plaintiff moved on it.

Liability

10. The plaintiff alleges against both defendants breaches of statutory duties, breach of the common duty of care under section 3 of the Occupiers' Liability Ordinance, Cap. 314 and negligence. The allegations of breach of statutory duties are no longer pursued because there is no evidence that 20 or more people were employed in the construction site so as to invoke the relevant regulations.

11. There now seems to be no real dispute that both the defendants are liable; the issue is rather whether there was contributory negligence on the part of the plaintiff.

12. So far as liability under the Occupiers' Liability Ordinance is concerned it is obvious that the duty of reasonable care which it imposes required that the floor on which the plaintiff had to work was kept reasonably safe. This would have included the provision by the defendants of some person or persons - the plaintiff refers to an "odd job man" - to keep the floor dry so that there would be no danger of the ladders slipping.

13. So far as negligence is concerned, the 2nd defendant, as the employer of the plaintiff, was required to provide a safe system of work, effective supervision and a safe place of work : Wilson and Clyde Coal Co. v. English [1938] AC 57. This also includes the provision of safe equipment. Here the system of work was quite obviously unsafe. It is common enough to see painters working on this kind of ladder and plank platform but while that may be safe enough in the context of domestic decoration work under low ceilings, it was in no way safe here.

14. The plank was on the top rungs of the ladders; there was nothing to stop it from slipping off. The plank was narrow; the painter had to get up on to it with a full bucket of paint, which the plaintiff says weighed 20lb., and a paintbrush, and he had to balance on it. There was nothing to keep the extension of the double ladders fixed. They would have to be moved about, to reach different parts of the ceiling; it would be easy when moving them to place them so that they were not at the full extension allowed by the rope, in which case they might move out to that full extension as the painter moved about on the plank. Worst of all the plank was 12 or 13 feet above the floor. There is an obvious danger of falling. Safe equipment and a safe system of work would have required the provision at the very least of a stable platform, with guard rails, and a safety line and harness. Also necessary was the giving of proper instructions. No instructions were given here.

15. The 1st defendant was the principal contractor on site. The plaintiff had been working there, as had other painters, using this ladder and plank system for about 20 days. It was or should have been obvious to the 1st defendant or its foreman that the system of work was unsafe.

16. Further, this was a situation involving a special risk of damage by falling. The 1st defendant as principal contractor owed a duty of care to the individual worker which it could not avoid by employing an independent contractor. See Charlesworth and Percy on Negligence, 9th Edn, paras. 2-314.

17. There can be no doubt that both the defendants were negligent. I turn to the question of contributory negligence.

18. Counsel for the defendants says that the plaintiff was an experienced painter who was well aware of the dangers inherent in his work. He knew that the floor was wet and uneven and he knew that the platform was not completely still as he worked on it. He did not take any steps to mop the floor. Once on the platform he put the paint bucket on the light bracket, where he had to lean forward a little to charge his brush. He admits that he did not think, when he leaned forward and down to charge his brush that this movement would expose him to the risk of falling. Therefore, he failed to take reasonable care for his own safety.

19. I do not see that it was the plaintiff's duty to mop the floor. As he says that is work for the odd-job worker. I do not see how he could be expected to leave his painting work, go looking for a mop and mop the floor. As to his action in placing the bucket on the horizontal light bracket it was much safer for him to put it down somewhere when it was full, either there or on the plank. If he tried to hold it as he balanced on the 8-inch plank that would be even more precarious. There would be no particular extra danger in his having to lean over a little to get to the bucket and he could and did steady himself by holding the vertical light bracket.

20. I cannot see that there was any failure on the plaintiff's part to take reasonable care for his own safety. In any event, he had been provided with unsafe equipment and an unsafe system of work. In Machray v. Stewarts and Lloyds Ltd [1964] 3 All ER 716, 721E McNair J stated :

"...... when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put any blame on him ....."

I think the same consideration applies here. One must be slow to put any blame on a man who is forced, by reason of no better equipment and system being supplied to him, to work on an unsafe ladder and plank arrangement like this one.

Quantum

21. The plaintiff suffered a fracture of the left calcaneum. He was admitted to Queen Mary Hospital on 22 September 1997. He was treated surgically by open reduction, bone grafting and internal fixation. He was discharged on 15 October 1997.

22. He was re-admitted on 1 March and discharged on 2 March 1999. Then on 25 March he was again admitted for removal of the surgical implant from his left ankle.

23. On 1 April 1999, the plaintiff was discharged from hospital and transferred to the Maclehose Medical Rehabilitation Centre from which he was discharged on 2 July 1999. From October 1997 to October 1998 he received physiotherapy twice weekly. From November 1997 to January 1999 he received out-patient treatment at the specialist clinic of Queen Mary Hospital. He was granted sick leave from the date of the accident to 19 April 2000.

24. The plaintiff says that he now has pain and swelling in the left ankle, and that every step he takes is painful. He has to walk with a stick. Also the ankle is not strong enough to support him when he has to squat over a lavatory basin. He does not feel able to resume his work. He has been advised that he could have a fusion operation, which will remove the pain, but he would not be able to climb ladders any more and it would be very difficult for him to walk or walk up a slope.

25. The plaintiff's medical expert was Dr. Lau Hoi Kuen, an orthopedic surgeon. The defendants' expert was Dr. Fali J. Shroff, a general surgeon. The main difference between them is as to what work the plaintiff can now do. Dr. Lau says that he is not fit to resume work as a painter, but is fit for "lighter but not necessarily very sedentary jobs such as watchman, shop assistant and car park attendant". Dr. Shroff says that he can return to work as a painter. They disagree about the level of pain which the plaintiff suffers. Pain is of course subjective. Dr. Lau accepts that the plaintiff's complaints are genuine but Dr. Shroff says that by now there should be no pain. Further Dr. Shroff says that he observed the plaintiff walking quite normally, without limping, into the lift in the court building on the morning of the second day of the trial.

26. Both the experts say that the plaintiff has a 20% chance of suffering degenerative arthritis in the subtalar joint requiring further surgery. Both estimate a loss of earning capacity at 20% Dr. Shroff explains this by saying that although the plaintiff can resume work as a painter will have to take sick leave for 20% of the time because of his disability. Both agree that it was reasonable for him to be granted sick leave up to December 1999. Dr. Shroff seems to think that the grant of sick leave certificates up to April 2000 might have been done uncritically by junior hospital doctors; Dr. Lau puts it down to a difference of medical opinion.

27. Dr. Lau examined the plaintiff twice. The most recent examination was on 9 February 2001. He found that the plaintiff walked with a limp but could squat fully. He found restricted dorsiflexion and plantarflexion of the left foot and also restricted inversion and eversion to less than five degrees. He also found some muscle wasting in the left leg. I understand his reason for that to be that the plaintiff would keep the weight off that leg because of pain. He said that the plaintiff's main problem is pain in the sub-talar joint during weight bearing. Any small degree of movement in the joint could cause pain. Pain and stiffness in the ankle joint, i.e. the joint between the upper surface of the talus and the ends of the tibia and fibula can be explained by soft tissue involvement coming from the sub-talar joint injury. The plaintiff would have problems in walking but particularly on inclines or ladders; in climbing a ladder there would be a lot of inversion and eversion of the foot. These movements also allow the foot to adjust to irregularity on the ground. For these reasons the plaintiff would not be able to work as a painter on building sites.

28. Dr. Shroff's says that there is no damage to the ankle joint, which is indicated by the fact that the plaintiff was able on examination to stand on tiptoes (involving plantarflexion) and squat (involving dorsiflexion). In his view soft tissue tightness in the ankle was unlikely, and if the plaintiff complained of pain in his ankle he probably meant pain in the subtalar joint which is only one inch below the ankle. As to muscle wasting he said that this would be caused by inactivity, not pain, and strength could be recovered by exercise.

29. Dr. Shroff said that the plaintiff could resume work but would have to be careful. Also he would have to take sick leave perhaps 20% of the time. Dr. Shroff would not expect the plaintiff to suffer pain now, after the removal of the implant, though it might happen in five years because of degenerative arthritis. He did not think, when he examined the plaintiff, that the plaintiff had genuine pain. As I have indicated he also referred to his observation of the defendant outside the court. It also appears from the report that he took the plaintiff's refusal to have a fusion operation to indicate that he was not suffering any significant pain.

30. Cross-examined, however, Dr. Shroff accepted that there could be soft tissue damage following on a sub-talar (calcaneal) fracture an such damage would cause stiffness. He thought that the plaintiff, if he resumed work as a painter on construction sites, would probably have to be more careful than the average person.

31. Most significantly, when it was put to Dr. Shroff that a sudden subconscious inversion or eversion moving the sub-talar joint would cause sharp pain, he agreed.

Can the plaintiff return to work as a painter?

32. The experts are largely agreed about the extent of the plaintiff's injuries but what they do not agree on is the pain which he should now be suffering. Dr. Shroff seems to think it is either feigned or of psychological origin. Pain is of course subjective and it can be genuinely exaggerated in the mind of one who is not simply malingering.

33. The plaintiff did not give any impression of dishonesty. He was a tiresome witness in that he found it difficult to give a simple answer without expanding on it at length and repeating whatever aspect of his case it touched on. He was very much concerned to put his case forward and it may be that the whole thing has built up in his mind so as to cause him to dwell on it too much and exaggerate what he feels. However, I think it must be accepted that the plaintiff suffers from continuing pain. The most likely reason for muscle wasting is keeping weight off the limb and the most likely reason for that is pain.

34. It is most significant that Dr. Shroff accepts that the plaintiff could suffer sharp pain on inversion or eversion of the foot. Dr. Shroff also says that the plaintiff would have to be careful if he returned to his usual work.

35. Dr. Lau says, and I accept it, that there would be a lot of inversion and eversion involved in climbing a ladder. Now even if the plaintiff were to work in the most excellent conditions in future, on fully stable platforms surrounded by secure guard rails, and always in a safety harness, he would still have to climb ladders with a bucket of paint in his hand. A man who is liable to suffer a sharp pain in his ankle while doing that is simply unsafe to himself and others. The same would apply though perhaps to a lesser degree on an uneven surface.

36. It has been suggested that the plaintiff could continue as a painter if he always worked on the ground level. That may be but it seems most unlikely that he would ever get work on that basis. No one is going to take on a painter who can only do part of a painter's work.

37. I conclude that the plaintiff cannot return to his work as a painter and would in future be restricted to working as a watchman, shop assistant or car park attendant.

Pain, suffering and loss of amenity

38. Counsel agreed by reference to the various authorities that the award should be $400,000. Having considered the authorities I accept this and will not go into a lengthy exposition of those authorities.

Pre-trial loss of earnings

39. There is some dispute over what the plaintiff earned. He says it was $750 per day for 26 days, i.e. $19,500 per month. He agrees that his employers reported in a Form 2 to the Labour Department that he earned $700 per day, and reported in a later adjustment form that his earnings would only have increased later to $750. However there is no real evidence from the defendants' side about his earnings and nothing to confirm the figures they gave to the Labour Department. In other words, there is nothing to contradict the plaintiff's evidence and I accept it.

40. The experts agree that the plaintiff should have had sick leave until December 1999. It is true that the plaintiff obtained sick leave certificates up to April 2000 and while it may be that these could be handed out fairly uncritically in a busy clinic, Dr. Lau says that there could be a difference of medical opinion. I do not think I can assume that the clinic doctors were negligent. I will allow loss of wages at $19,500 per month for the period to 19 April 2000, i.e. 31 months which is $604,500.

41. I accept that the plaintiff tried to mitigate his loss by looking for work. He has had several unsuccessful job interviews. I accept on the basis of the documents relating to those interviews that the sort of work he might now do would pay on average $5,775 per month. His loss for the period from 19 April to the date of trial (14 months) would therefore be ($19,500 - $5,575) x 14 months = $194,950.

42. The total for pre-trial loss will therefore be $799,450.

Future loss of earnings

43. Counsel for the plaintiff says that the plaintiff may have to undergo an operation and would need another three months before he could get a job. The experts agree that there is a 20% probability of the need for a further operation. I take this to mean the fusion operation which the plaintiff has so far refused. I do not think it is possible to quantify a figure under this head.

44. The plaintiff is now 47 years old. He says he would have wanted to keep on painting until he was 68 and that other painters have gone on into their 70s. The normal retirement age is said to be 60. Counsel refers to Tsang Hing Yuen v. Nishimatsue Kumagai Joint Venture [2000] 1 HKLRD 796 where a multiplier of nine was applied to a carpenter aged 41 at the time of his accident and 46 at trial. This plaintiff was 44 at the time of his accident and is now nearly 48. There is no real evidence as to how long painters generally work or how long they might work. I think a multiplier of nine is appropriate here.

45. I accept the plaintiff's evidence that his union is talking about a 3% wage increase this year. In view of the recently announced civil servants' pay increase of, I believe, 2.8% for lower ranking officers this seems probable. A 3% increase on the pre-accident wage (which probably would not have increased since the time of the accident, given the economic slump) would give a figure of $20,085. One would also have to apply the same 3% increase to the notional wage of $5,775 which would produce a figure of $5,948. I accept on this basis that the loss of earnings per month will be $20,085 - $5,948 = $14,137. This will give a figure for future loss of $14,137 x 12 x 9 = $1,526,796.

Loss of earning capacity

46. I accept that there will be a disadvantage in the labour market and that if the plaintiff gets work, he might lose it and find it difficult to get another job. A 12-month delay in finding work seems reasonable. I will allow a figure of $5,775 x 12 = $69,300.

Loss of MPF contribution

47. This should be 5% on total loss of earnings from December 2000 which I calculate as follows:

On post-trial loss of earnings:	$76,339
On loss since December 2000:	$4,873
Total :	$81,212

Special damages

48. I accept the medical expenses and cost of crutches and walking stick put at $1,075.

49. The claim for travelling expenses for the plaintiff and his family during his hospitalisation is $16,054. There is no documentary evidence to support it; one would not expect that; but it sounds like a lot of money for a 3-month hospitalisation. The defence will concede $5,000 which sounds much more reasonable and I will allow that.

50. The claim for tonic food is for over $50,000. The plaintiff does not now pursue that but says that following Yu Ki v. Chin Kit Lam [1981] HKLR 419 where a plaintiff was allowed $10 per day in 1980, an appropriate figure here would be $150 per day to allow for inflation, for 114 days, i.e. the hospital stay. The defence concedes $10,000.

51. This claim is always a vague one. In Yu Ki it was held proper "to allow a nominal sum where relatives have spent this on food which the injured person or relative reasonably believed to be helpful to the patient's recovery." I have no evidence of the rate of inflation since 1981 but to allow $150 per day for 114 days seems to go beyond the "nominal". It seems to me that $10,000 is reasonable as a nominal sum under this head and I will allow that figure.

52. The total of special damages will be $16,075.

53. The award will therefore be :

PSLA	$400,000
Pre-trial loss of earnings	$799,450
Post-trial loss of earnings	$1,526,796
Loss of earning capacity	$69,300
Loss of MPF contribution	$81,212
Special damages	$16,075
Total	$2,892,833

54. There will be judgment in favour of the plaintiff against the defendants for $2,892,833, with interest on $400,000 at 2% from the date of the writ, and at half the judgment rate on $799,450 from 22 September 1997. Costs (nisi) to the plaintiff to be taxed if not agreed. Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.