SIU LEONG CHING v. PROFESSIONAL SCAFFOLDING ENGINEERING CO LTD AND OTHERS

HCPI 70/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.70 OF 2003

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J U D G M E N T

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1. The plaintiff claims damages for personal injuries sustained by him on 25 May 2000 when the bamboo scaffold which he was dismantling suddenly collapsed, causing the plaintiff to fall from the second-floor of the external wall of the building to the ground at 41A Stubbs Road, Villa Monte Rosa, Block E, 2^nd floor (“the Site”). 

2. The claim is brought against the first and second defendants.  The first defendant was sued as the immediate employer of the plaintiff.  The second defendant was sued as the main contractor at the Site where the construction/decoration works were being carried out.

3. The plaintiff’s claim against the first defendant is put on the basis of breach of employer’s duty of care, breach of duty of care as an occupier under the Occupiers Liability Ordinance, as well as breach of statutory duty.  The claim against the second defendant is based on breach of duty of care as an occupier under the Occupiers Liability Ordinance and for breach of statutory duty.

4. The plaintiff seeks also to rely on the fact that the second defendant was, as a result of the accident, the subject matter of this claim, convicted in the magistrates court on 27 November 2000 of the offence of failing to take adequate steps to prevent a person on the Site from falling from a height of two metres or more, namely dismantling of bamboo scaffold undertaken at height at the external wall of the Site on the second-floor contrary to Regulations 38B (1), 68(1)(a) and 68(2)(g) Construction Sites (Safety) Regulations under the Factories and Industrial Undertakings Ordinance, Cap 59.

5. The plaintiff also relies on the maxim of Res Ipsa Loquitur in establishing negligence on the part of the defendants in this case.

6. Initially there was a third-party proceedings, as well as fourth party proceedings in this matter.  The Third-Party in the Third-Party proceedings was brought in by the second defendant.  In turn, the Third-Party issued Fourth Party proceedings against the Fourth Party.

7. However at the start of the trial, leave was granted to the second defendant to discontinue the Third-Party proceedings against the Third-Party.

8. As for the Fourth Party proceedings that had never proceeded beyond the stage of leave being granted to the Third-Party to bring Fourth Party proceedings.

9. As a result, the trial in this matter proceeded only on the footing of the main claim as between the plaintiff and the first and second defendants.  This judgement, therefore, only deals with that dispute.

10. The defence raised by the first defendant to the plaintiff's claim is a denial of negligence on the part of the first defendant and putting the plaintiff to strict proof of his claim.  Contributory negligence of the plaintiff is also raised.

11. The defence of the second defendant is a denial of negligence on its part.  The second defendant also denies that it was the principal contractor at the site, but that it had entrusted the decoration works at the site to the Third-Party and that the scaffolding in question was erected by the Third-Party, it’s servant or agent.  It is also alleged by the second defendant, that it did not instruct the Third-Party to dismantle the scaffold, which ultimately collapsed.

12. As for the conviction relied upon by the plaintiff, the second defendant admits such conviction, but denies that it is relevant to the plaintiff's claim.

The plaintiff’s evidence

13. The plaintiff was the only factual witness called to give evidence for the plaintiff.  His evidence was that on the morning of the 25 May 2000 he and two other workers, Tang Wing Sing (“Tang”) and Cott Ka Luen (“Cott”), both of them also employed by the first defendant, set out in the company’s lorry from the first defendant’s work place.  Their first destination was a site in central where they dismantled some scaffolding.

14. After that, they proceeded to the Site, arriving there at about 11:30 a.m.  They then began to dismantle the scaffolding at the Site.  Cott was the leader of the three of them.  Initially, the plaintiff and Tang were assigned the duties to stand on the ground to collect the bamboo handed down by Cott who alone went up to the scaffold to do the dismantling work.  However, Cott was doing the dismantling work  far too slowly.  Because the three of them still had a third site in Chaiwan to go to that day to do some more scaffold dismantling, the plaintiff, on his own initiative, decided to help Cott with the dismantling work at the Site.

15. As a result, the plaintiff, on his own, dismantled a small piece of scaffolding, which was erected at the external wall outside the laundry room of the Site.  In the meantime, Cott had dismantled, another small piece of scaffolding.  What then remained to be dismantle was a larger piece of scaffolding erected outside the external wall of the dining area, study room and bed room of the Site.

16. When the plaintiff had finished dismantling the small piece of scaffolding on his own, he went over to assist Cott in dismantling the larger piece of scaffolding.  When he offered to assist Cott in dismantling the larger piece, Cott accepted his offer whereupon, the plaintiff climbed up on to the larger piece of scaffolding.  He found the scaffolding safe when he mounted.  He then began to dismantle it.  As he was dismantling it, he handed down two pieces of bamboo to Tang who was on the ground receiving the bamboo handed down to him.

17. Suddenly, according to the plaintiff, the scaffolding collapsed and the plaintiff fell from the second storey of the building to the ground as did Cott also.  At the time when the scaffolding collapsed, the plaintiff was wearing a safety belt, which had been provided to him by the first defendant.

18. From that fall, the plaintiff suffered a dislocation of his right elbow, fracture of his right hip and right fibula as will as a fracture of his left calcaneus.  Police and ambulance was called and the plaintiff was taken to hospital.

19. It was also the plaintiff’s evidence that at the time of the accident  he was wearing a safety belt, but that there was no proper or fixed anchorage point on the scaffold upon which he could fasten the safety belt.

20. According to the plaintiff  there was no independent lifeline, erected at the Site, to which he could fasten is safety belt.  While the plaintiff accepts that the safety belt was provided by the defendant, it is his evidence that he did not find any independent lifeline among the equipment provided by the defendant on the day of the accident.  The only other equipment that he could find, apart from the safety belt, was a drill.

21. In cross-examination, the plaintiff alleged for the first time in these proceedings that the cause of the scaffold collapsing was due to the improper method adopted by Cott in dismantling the scaffold.  That allegation had never previously been made by the plaintiff, either in his declaration given to the Labour Department during the investigation of this accident, nor in this witness statement  in these proceedings, nor in his evidence in chief given orally in the witness box.

22. Moreover when further cross examined in this matter, the plaintiff admitted that this allegation by him of the improper method used to dismantle the scaffolding by Cott was not as a result of what he had seen at the Site, but rather as a result of what he had realised after thinking the matter over when he was recuperating in the hospital.

23. The plaintiff also admitted in cross examination, that when he offered to assist Cott in dismantling the larger scaffold, he had not spoken to Cott as to what Cott had done by way of dismantling.  Nor had he looked to see what Cott had done in the dismantling of the scaffold  although that could have been seen by him before he climbed onto the scaffold.

The defendants’ evidence

24. Only one witness was called by the defendants, namely, Pang Chuen Sing (“Pang”), a director of the first defendant.

25. It should be noted at the outset that Pang was not present at the site when the accident occurred.  As such, he was unable to see what actually happened at the time of the accident but that his evidence was more of a general nature.

26. It is the evidence of Pang that normally, the defendant will provide equipment to its workers for erecting and dismantling scaffolding.  Such equipment would include safety belts, independent lifeline, fall arresters, eyebolts and drills.  The eyebolts and drills would allow the workers of the 1^st defendant to erect for themselves fixed anchorage points, where none could be found at the sites where they work.

27. The independent lifeline could also be erected by its workers to allow them greater flexibility in movement when working on scaffold, when erecting or dismantling same.

28. Pang also acknowledged that on the day of the accident.  Cott was the leader of the team of three workers including the plaintiff and that on the morning before they set off for work, he had reminded Cott to pay attention to safety aspects. 

29. Cott was a CITA certified scaffold worker, and the plaintiff was a very experienced scaffold worker.  Having provided all the necessary equipment for the safety of the workers, he (Pang) felt that he could rely on them to use such equipment to take proper care of their own safety when erecting or dismantling scaffold.

The Accident Report and the cause of the scaffold collapse

30. An Accident Report prepared by an investigator from the Labour Department in its investigation of this accident, was adduced into evidence.  The contents of the report, including the findings and recommendations by the Labour officer has not been seriously challenged by either party.  Indeed, the Labour officer was not required to give oral evidence and was not required to be cross-examined.

31. The findings in that report can be summarised as follows :

32. It was the longer part of an L-shaped scaffold which collapsed.  This longer part of the L-shaped scaffold had four load-bearing points, namely two metal brackets mounted on the external wall and two short bamboos tied by two metal wires to an existing horizontal metal pipe installed on the external wall.

33. The procedures of dismantling the entire L-shaped scaffold (both the longer and shorter parts) were as follows :

(a)      The shorter part was dismantle by Cott firstly;

(b)     The brackets supporting the shorter part were removed and put inside the premises;

(c)     Cott then removed the guardrails of the longer part and also a metal bracket with a standard above the longer part;

(d)     Cott detached a long bamboo from the base structure of the longer part;

(e)      Cott cut a metal wire located in the middle of the scaffold;

(f)      at this point, the plaintiff came to join Cott in the dismantling;

(g)     the plaintiff dismantle two long bamboo from the base structure of the longer part;

(h)     the plaintiff then cut a metal wire located near the end of the scaffold.  (At this material time, only one load-bearing point for the longer part remained).  It was at this point in time, that the scaffold collapsed.

34. It was the observation of the investigator in this accident that at the material time of the accident three of the four load-bearing points had been removed.  The cause of the collapse of the scaffold was probably that the remaining one load-bearing point could not maintain the longer part of the scaffold on the external wall.  Thus, it collapsed and fell to the ground.

35. It was also the findings of the investigator that when Cott and the plaintiff was on the scaffold before it collapsed, neither independent lifeline, nor anchorage points were provided for them, although the safety belt had been worn by one of them.  Moreover, there was no safety net installed.  Therefore, when the scaffold collapsed, both of them fell from the second-floor level to the ground for a distance of some 10 metres.  This accident could have been prevented if suitable and adequate safety nets and belts, which were attached continuously to a suitable and secure anchorage, were available.

Assessment of the evidence and findings of fact

36. In so far as the cause of the collapse of the scaffold in question is concerned, and the fact that neither party has disputed the findings, observations and recommendations contained in the Accident Report prepared by the Labour Department in respect of this accident, I accept the entire report and the findings contained therein as part of my factual findings in this case.

37. As for the factual dispute contained in the evidence from the plaintiff and that of Pang, it relates only to a very narrow compass, namely, whether there was provided in the tool box of the lorry (which transported them to the Site) equipment which could be used to fix anchorage points such as eyebolts and also an independent lifeline.

38. Having seen and heard the plaintiff give evidence from the witness box, and while I accept that he is not an untruthful witness in the sense that he is deliberately lying on important or material issue, I find him to be not a wholly credible and reliable witness.

39. I do not accept his evidence that the collapse of the scaffolding in question was due to the improper method of demolition adopted by Cott.  That evidence given by him was not from something that he had seen at the time of the accident, but was, as admitted by him, a conclusion that he had reached when thinking over the matter whilst recuperating in hospital.

40. Had it been the case that Cott had in fact adopted an improper method of demolition of the scaffold, it is quite inconceivable that this was not mention by the plaintiff in his Declaration to the Labour Department when the investigation into this accident was conducted by them.  Indeed as pointed out by counsel for the defendant the plaintiff had every opportunity to have said so when in Question 9 of his Declaration he was asked by the investigating officer for his point of view as to why the bamboo scaffold collapsed while it was under demolition and yet not a word of such improper method used by Cott was mentioned by the plaintiff.

41. As to whether or not an independent lifeline was provided on the day of the accident at the site, the evidence of the plaintiff directly conflicts with that of Pang.

42. The plaintiff does not specifically say that there was no independent lifeline in the lorry.  He merely says that he did not see any on the lorry.  Bearing in mind that he is not the most reliable witness, the only other piece of evidence which can assist in resolving this conflict is contained in the Declaration of Cott to the Labour Department where in Answer 5 thereof, Cott says that he can recall that an independent lifeline was brought to the Site by the lorry (on the day of the accident).

43. I accept that Cott was not a witness in these proceedings, but his Declaration having been agreed to be put in as evidence by the parties, it can support the evidence given by Pang that generally there would be included in the equipment provided by the 1^st defendant an independent lifeline.

44. For these reasons I accept the evidence of Pang that there was an independent lifeline provided.  It follows that I would also accept his evidence that eyebolts were also provided and was contained in the tool box of the lorry.

45. However, at the same time, it is clear from all the evidence in this case as well as from the findings in the Accident Report, that the independent lifeline, if provided, was not erected or installed for use by the workers including the plaintiff in the dismantling of the scaffold in question.  Equally clear is that no eyebolt was attached to the external wall of the Site where the scaffold was such, that it could be used as a secure anchorage point for safety belts worn by those dismantling the scaffold.

46. I therefore make the following finding of facts in this case :

(1)     The sequence of events which took place leading up to the collapse of the scaffold were as stated by the investigators in the Accident Report;

(2)     No independent lifeline, safety net or secure anchorage points for safety belts were erected or installed at the site where the scaffold was when the scaffold was dismantled although independent lifeline and eyebolts were provided by the 1^st defendant and carried on the lorry;

(3)     On the plaintiff’s own admission in cross examination, the plaintiff had not ascertained from Cott what Cott had done by way of dismantling the scaffold in question before the plaintiff mounted that scaffold to assist Cott in the dismantling of it.

Liability

47. In dealing with the issue of liability, it should be kept in mind that the immediate cause of the collapse of the scaffold is but one of the causes of the accident and the resultant injury to plaintiff.  In the present case, the absence of a safety net, an independent lifeline as well as secure anchorage points to which safety belts could be fastened at the site where the scaffold was to be dismantled were also causes of the accident and the resultant injury to the plaintiff.

48. There can be no dispute that the first defendant, as employer, owes a non-delegable duty to its workers, including the plaintiff, to provide a safe place of work and a safe system of work.

49. Upon the facts as found by me, although the first defendant had provided an independent lifeline as well as eyebolts, it remains a fact that the first defendant had failed to provide a safe place of work or a safe system of work  in that there was no safety net, independent lifeline, or secure anchorage points erected at the Site when the scaffold was dismantled.  That duty of the first defendant is not discharged simply by Pang instructing the foreman (Cott) to pay attention to safety and by the provision of the necessary equipment.

50. Neither can that duty be discharged by the first defendant delegating it to Cott.  Having delegated it to Cott, the failure of Cott to see to it that the duty is not breached falls back upon the first defendant vicariously, both because Cott is the servant or agent of the first defendant and also because that duty of the first defendant is non-delegable.

51. Accordingly and for the reasons given above, there can be no question but that the first defendant, as employer, is liable to the plaintiff in negligence  for this accident.

52. As for the second defendant, no witness has been called to give evidence on its behalf.  The conviction relied upon by the plaintiff has been admitted by the second defendant.  From that conviction  it is clear that the second defendant was the main contractor for the decoration works undertaken at the site.  The scaffold was erected as part of those decoration works.  Its dismantling must also therefore be part of those decoration works.

53. As the main contractor, the second defendant was under a statutory duty to ensure that reasonable precautions be taken to ensure the safety of workers falling a distance of over two metres.  On the facts as found by me, there was a failure to take such reasonable precautions.  That formed the very crux of the conviction of the second defendant.  No evidence having been led to negative negligence on the part of the second defendant, it must follow that the second defendant is liable to the plaintiff in respect of this accident for negligence from his breach of statutory duty based on such conviction.

Contributory negligence

54. I accept that the demolition of the scaffold in question was not by any yardstick a major Project.  Relatively speaking, it was a small project.  The scaffold was only erected outside the site on the external wall of the second floor of the building.  The bamboo making up the scaffold did not rest on the ground level but was only secured to the external wall by four load-bearing points.

55. It may be because it was a relatively small project that insufficient attention was paid to the safety aspect by all concerned, including the plaintiff.

56. Whilst I accept that the plaintiff did take the trouble to wear a safety belt, there is absolutely no evidence that the plaintiff had at any time raised any concern with Cott, being the foreman, as to the absence of any secure anchorage points or independent lifeline or even safety net before he (the plaintiff), mounted the scaffold to carry out the demolition of it.  That in itself may not result in a large degree of contributory negligence, albeit that the plaintiff is an experienced scaffold worker.  The reason for that is because such failing in this respect, applies to all who stands ahead of the plaintiff, including Cott being the foreman, the first defendant being the employer, and also the second defendant being the main contractor.

57. There is however, another aspect, which I must have regard to and which underlines to a greater degree  the failure of the plaintiff to take proper and reasonable regard for his own safety.  In this, I refer to the failure of the plaintiff to properly ascertained either from Cott or from his own observations all that had been done by Cott in the dismantling of the scaffold in question before the plaintiff proceeded to carry out the further dismantling of the same scaffold when he came to assist Cott.

58. Had the plaintiff taking the pains to do so, it must have been obvious to the plaintiff that Cott had already dismantle or removed two of the four load-bearing points to which the scaffold was attached to the external wall.  This would have alerted the plaintiff as to whether it would be safe to cut the wires of the third load-bearing point bearing in mind that there was only one other load-bearing point on which the scaffold rested.  This was something which the plaintiff, as an experienced scaffold worker, ought to have done on his own.  It must also have been obvious to an experienced scaffolder like the plaintiff that failure to take such a basic step would likely lead to risk and even danger for him to then proceed to dismantle the scaffold without knowing what had already been done by Cott.

59. For these reasons I am driven to the conclusion that the plaintiff had failed to take reasonable care of himself in failing to do what he should have done in all the circumstances of this case.

60. Taking into account all those circumstances referred to above, the amount of contributory negligence of the plaintiff in this matter in my view ought to be assessed at 25%.

Quantum

61. I turn now to deal with the quantum of damages.

Injuries and Treatment

62. After the accident, the plaintiff was taken by ambulance to Queen Mary Hospital where he was admitted.  He was diagnosed to have suffered the following injuries :

(a)      fracture of trochanter of right femur (the upper part of the thigh bone);

(b)     fracture of right talus (bone in hind foot);

(c)     fracture of right fibula;

(d)     fracture of left calcaneum (heel bone)

(e)      fracture of left inferior pubic rami (front pelvic bone); and

(f)      dislocation of right elbow joint.

63. On 27 May fixation of the hip fracture was performed.  A second operation was carried out on 5 June for fixation of the calcaneus, fixation of the fibula and fusion of right subtalar joint.  On 26 June closure of the ankle wound was performed.  On 24 November, revision fixation of the hip fracture was carried out.  On 9 January 2001 a right ankle arthroscopy was performed for the open release of the right ankle and foot.

64. The plaintiff was transferred from QMH to the Maclehose Medical Rehabilitation Centre on 27 June 2000 for rehabilitation and therapies.  He was discharged from hospital on 31 May 2001.  Whilst at the Maclehose Centre, he was readmitted to QMH on five occasions for orthopaedic treatments.

65. Sick leave was granted to the plaintiff from 25 May 2000 to 10 August 2001.

66. On 15 November 2002 the plaintiff was examined by the plaintiff’s orthopaedic expert, Dr Au Ka Kau who found the plaintiff to have suffered the following permanent impairments to various part of his body resulting from the accident :

(a)      stiffness of the right hip joint;

(b)     right patello-femoral joint tenderness with crepitation;

(c)     stiffness of right ankle joint; and

(d)     stiffness of left ankle joint

67. From his examination, Dr Au found that the plaintiff’s right elbow had recovered satisfactorily but he still had residual right hip pain and stiffness and bilateral ankle pain and stiffness.

68. Dr Au also found no deformity of the upper limbs.  However the movements of the right hip joint was limited, there was right patello-femoral joint tenderness and crepitation on bending of the right knee.  He also found the right knee joint movement and both ankle joint movements limited and there was decreased motor power in the right leg.

X-ray had showed secondary osteoarthritis in the right ankle joint.

69. Dr Au assessed the impairment to the whole person of the plaintiff at 18%.

70. On 26 May 2003, the plaintiff was examined by the defendant’s expert, Dr Lau Man Tsang, Richard.  Dr Lau found the plaintiff to be suffering from pain and stiffness in his right hip and right ankle, has some little complaint of his left heel but no complaint of his right elbow.  He found the plaintiff’s disabilities to be as follows :

(a)      unable to squat down;

(b)     cannot walk fast due to right hip and right ankle discomfort;

(c)     walking tolerance is limited to 30 minutes of walking in leisure;

(d)     cannot undergo his sporting activities as swimming, hiking, cycling, and bowling;

(e)      requires the help of railings when going up or down stairs.

71. Dr  Lau assessed the total impairment to the whole person of the plaintiff at 14%.

72. Both experts agreed that the plaintiff could not return to his pre-accident work as a scaffolder but would be restricted to sedentary jobs.  They also agreed that the sick leave period granted to the plaintiff was appropriate.

73. Both experts were also agreed that the injuries of the plaintiff have reached maximal medical improvements but that as there were already extensive osteoarthritic changes in the right ankle, it is very likely that the condition will deteriorate.  When pain becomes unbearable, a fusion of the right ankle joint may be necessary, the cost of which in the private sector costs $30,000.00.

74. The only difference between the two experts was that Dr Lau did not share the opinion expressed by Dr Au that the plaintiff had right patello-femoral joint tenderness with crepitation.

75. This one difference is almost negligible in the light of what was agreed between them.

Pain suffering and loss of amenities

76. I have been referred to a number of local cases in respect of past awards for PSLA.  Those cases referred to are contained in the written closings of both counsel for the respective parties.  It is not necessary for me to go into the details of those past awards save to say that they serve as a useful guideline for making the award which should be assessed under this head of damage.

77. In the present case, the injuries and treatment of the plaintiff for those injuries have already been dealt with.

78. In assessing the proper award under this head, I also take into account the fact that the plaintiff was hospitalized for a prolonged period and that he had a number of surgical operations to deal with the multiple injuries sustained by him.  I also note that he had to be re-admitted to QMH from the Maclehose Centre on at least five occasions during his stay there for further orthopaedic treatment.

79. The plaintiff was an active young man before the accident.  He is now unable to take part in many of the sporting activities which he had enjoyed before the accident.

80. In all the circumstances of this case, I take the view that the proper amount of damages to be assessed for PSLA should be $480,000.00.

Loss of Earnings (Pre-trial)

81. Initially there was some dispute as to the daily wage of the plaintiff before the accident.  It is now accepted by the plaintiff’s counsel that $800 should be used as the daily wage of the plaintiff before the accident for the calculation of loss of earnings, which is the amount put forward by the defendants.

82. The plaintiff says he worked 26 days a month before the accident.  This is disputed by the defendants.  Pang’s evidence was that a scaffolder generally will average 14 to 16 days of work each month.

83. I do not accept the plaintiff’s evidence that he works 26 days a month on average.  It is generally accepted that since the economic downturn in Hong Kong from late 1997 onwards, the construction industry has been one of the industry which has been hard hit by it.

84. On the other hand, the evidence of Pang may well apply to workers engaged by him.  However, the plaintiff is a casual worker and works for the 1^st defendant as well as for other contractors wherever work can be found.  Taking all the circumstances into account, it seems more likely that 20 work days a month on average paints a more accurate picture in so far as the plaintiff’s working month is concerned.

85. The plaintiff was granted fourteen and a half months of sick leave.  Both experts agree that was appropriate.  However, considering that after the expiry of his sick leave, the plaintiff was not able to return to his pre-accident work but would have to find alternative form of employment, and taking into account the present market climate for work, it would not be unreasonable to allow a full 20 months for full loss of earnings.  This comes to $320,000 on the basis of a 20 work-days month.

86. For the remaining 33 months (pre-trial), there will be partial loss of earnings on the plaintiff.  The evidence from the plaintiff is that since December 2002, the plaintiff was able to secure work as a receptionist at a karaoke lounge in Shenzen earning $5,000 per month.  That evidence of the plaintiff has to be looked at with some circumspection.  He started off saying he earned $5,000 per month.  In cross examination he said that it was all commission calculated at 28% of the customers’ bill.  When further cross examined, he said $5,000 was the maximum he would get in a month, at times he got as little as $2,000 or $3,000 a month.

87. It is also his evidence that he did not get any tips in his job and that the payment record given to him by the karaoke was not kept by him but thrown away.  It never occurred to him to keep such record as evidence despite the fact that he was represented by solicitors all the time in this matter.

88. There is also evidence that before the plaintiff became a scaffold worker, he had worked as a silk screen printer in a factory in Mainland China earning some $9,000 per month.  That was between 1985 to 1994.  In that work, the plaintiff was a master in silk screen printing.  There was however, no evidence from the plaintiff that he could not go back to working as a master silk screen printer.  The only evidence from the plaintiff in this respect was in re-examination when he said that silk screen printing work was manual work and one worked standing up all day.

89. I take into consideration also that the present job which the plaintiff has, working in a karaoke in Shenzen, may be convenient to him since he now lives with his present girlfriend and his elder son (by a former girlfriend) there.

90. There is also evidence from Government statistics that the job of a watchman in Hong Kong ranges from between about $7,000 odd and $9,000 odd.

91. All this evidence leads me to the conclusion that it was more than likely for the plaintiff to have obtained suitable alternative employment in Hong Kong after his sick leave has expired where he would be able to earn at least $7,000 per month.  On this basis therefore I find that the partial loss of earnings of the plaintiff for the remaining 33 months pre-trial to be at $9,000 per month.  This gives $297,000.00

92. The total loss of earnings for the pre-trial period comes to $617,000.00.

Future loss of earnings

93. For loss of future earnings, the plaintiff suggests a multiplier of 14 to be adopted.

94. However, there is evidence given by Pang for the defendant, which I accept, that a scaffold worker normally works up to between 45 and 50 years of age.  The rationale for that is not difficult to see since it is extremely strenuous work and requires both agility and strength climbing up and down a scaffold at height.  Based on this evidence, the defendant submit that a multiplier of 8 would be adequate in this case.

95. Although I accepted that evidence of Pang, there is nothing to prevent the plaintiff from taking up a less demanding job within the construction industry even after age 50, albeit that it may not pay as well as the job of a scaffolder.

96. Once this is recognized, it is not the multiplier that should be adjusted, but the multiplicand.

97. Taking account of all the circumstances in this case and especially the fact that the plaintiff is now 34 years old, the proper multiplier to adopt would be 13.

98. As for the multiplicand, although $9,000 was used as his partial loss of earnings for the pre-trial period, when it comes to future loss of earnings, and for the reason given above, I would use a multiplicand of $7,000.

99. This gives the future loss of earnings to be $1,008,000.00.

Loss of MPF

100. The loss of MPF will be calculated from December 2000 onwards since MPF started only at that date.

101. For the pre-trial period it works out to be :

102. 5% of $16,000 x 14 moths (from December 2000) + 5% of $9,000 x 33 months which gives $26,050.00.

103. For future loss of MPF it is calculated at 5% of the future loss of earnings which gives $50,400.00.

104. Totally it comes to $76,450.00.

Other Special Damages

105. Medical and traveling expenses have been agreed at $25,503 and the same will be awarded.

106. Tonic food is claimed at $10,000 by the plaintiff.  The defendant agrees to a sum of $5,000 in the absence of any supporting documentary evidence for such claim.

107. In dealing with this claim, I take into account the prolonged hospitalization of the plaintiff and therefore also the longer time taken for his rehabilitation.  In those circumstances it would be reasonable to award $8,000.

108. The total amount assessed under this head therefore comes to $33,503.00.

Loss of earnings capacity

109. This is claimed at $244,800 by the plaintiff.  The amount so claimed is based on 12 months wages as a scaffold worker at $20,400 per month (i.e. a 24 work-day per month).

110. The defendant takes the stance that there is no reason to assume that the plaintiff will suffer a loss of earnings capacity in light of the absence of any evidence that he presently faces any handicap in his job.

However, what I have to consider is the plaintiff’s handicap in the labour market as a result of his disabilities and not any handicap in his present job.

111. That the plaintiff will suffer a handicap in the labour market is quite obvious from the report of both experts that he is fit only to take up alternative employment of a sedentary nature as a result of his disabilities.  On the other hand, the method adopted by the plaintiff in assessing the amount under this head of claim is in my view incorrect.  The basis for the calculation should not be the wages of a scaffold worker since the plaintiff has already been compensated for loss of earnings, both pre-trial and future loss.  It should instead be based on the amount that he would be able to earn in future in the condition that he is in.  I have already stated in an earlier part of this judgment that in my view the plaintiff should be able to earn $7,000 per month.  I shall take that as a base.  There are some authorities to suggest that loss of earnings capacity be calculated roughly to be one month for every year of the multiplier used for future loss of earnings.  In the absence of a better formula, that is the one I propose to adopt.  That gives $91,000 which is the amount I assess under this head.

Future medical expenses and further sick leave

112. $30,000 is claimed for future medical expenses being the cost in the private sector for fusion of the right ankle joint when the pain becomes unbearable due to the onset of osteoarthritis as advised by Dr Au.  The possibility of the right ankle fusion having to be carried out appears to be quite high from what has been said by both experts in their reports.  For such fusion of the right ankle joint, Dr Au further advises that sick leave of three months would be necessary, therefore the claim is also for a further $15,000 being three months of the present monthly earnings of the plaintiff.

113. In so far as this head of damage is concerned, there is no good reason put forward why the plaintiff should resort to the private sector for the right ankle fusion when the time comes for it to be performed.  As the plaintiff had resorted to public government hospitals for all his previous treatments relating to all his injuries sustained in the accident, it seems likely that he would in all likelihood have the right ankle fusion done in a government hospital the cost of which is minimal.

114. Accordingly, there will only be awarded the three months further sick leave claimed at $15,000.

Interests

115. Interests will be awarded at 2% p.a. for general damages for pain suffering and loss of amenities from the date of the Writ to the date of judgment.

116. On pre-trial loss of earnings and other special damages, interests will be awarded at 4% p.a. (being half judgment rate) from the date of the accident to the date of judgment.

Summary

Conclusion

118.  The sub-total amount of $2,452,675.00 will be reduced by 25% to take account of the plaintiff’s own contributory negligence.  This comes to $1,839,506.25.  From this sum will be deducted the sum of $616,196 being the EC award already received by the plaintiff.

119.  The final figure thus arrived at is $1,223,310.25.

120.  Accordingly there will be judgment to the plaintiff for $1,223.310.25 against both defendants.

Costs

121.  There will be a costs order nisi that the defendant do pay the plaintiff his costs of this action to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.