PANG KWAN v. LUEN HING CONSTRUCTION & ENGINEERING LTD AND ANOTHER

HCPI 334/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 334 OF 2005

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 J U D G M E N T

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1. The plaintiff claims damages for personal injury sustained by him as a result of a fall from a scaffold structure which he was assisting in dismantling at his place of work, a construction site at Penny’s Bay, Lantao on 22 January 2003.

2. At the time of the accident he was aged 41 and employed as a general worker by the 1^st defendant, a subcontractor of the 2^nd defendant, the principal contractor at the site.  The plaintiff’s claim is based on an allegation of negligence, breach of his contract of employment and breach of the defendants’ common duty of care as occupiers of the construction site.

3. It is not in dispute that the only significant injuries suffered by the plaintiff were fractures of the os calcis ( heel bone) of each foot.

4. He was admitted to Princess Margaret Hospital (“PMH”) on the day of the accident and five days later, after the swelling had subsided, he underwent surgery, namely open reduction, internal fixation and autogenous iliac graft on both fractures.  On 19 February 2003, he was transferred to the rehabilitation ward at Lai King.  After his condition improved so that he could walk unaided with the assistance of weight bearing calipers, he was discharged home on 15 March 2005.  Thereafter he attended 32 sessions at the Occupational Therapy Department of Prince of Wales Hospital (“PWH”).

5. On 23 May 2005, he underwent surgical removal of the implants at PMH.

6. There is no dispute that the plaintiff was granted sick leave from 22 January 2003 until 13 April 2004 and then from 20 May 2005 until 12 July 2005.

7. The plaintiff’s case is that at about 4.45 p.m. on the day of the accident, he had finished his work in the pump room at the site and then, on the instruction of the foreman of his employer (Brother Chun), had gone to assist in the dismantling of the scaffolding structure around the pump room.

8. On the plaintiff’s account, the structure had originally had four levels of working platforms above ground level.  The basic components of the scaffolding structure on each level were referred to by the safety officer as “goal frames” which were yellow coloured and secured to each another and rendered stable primarily by horizontal metal pipes and criss-cross bars known as “scissors” and by the metal “stepping boards”, which had hooks at each end and formed the working platform at each level.

9. There has been no dispute as to the correct order for dismantling the components of each level.  The essential principle is that the whole structure and each level should be dismantled from top to bottom.  Insofar as a particular level is concerned, this would require the dismantling worker standing on the stepping board of that level, firstly to unhook the stepping boards of the level above, then dismantle the horizontal pipes, before proceeding to dismantle the scissors and then finally the yellow goal frames of that level.  He would then proceed to the level below and repeat the process.

10. The plaintiff’s evidence was that when he arrived at the structure, the 4^th level had been dismantled leaving only the stepping boards of that level remaining.  He accordingly started work on the 3^rd level to dismantle that level.  His case is that whoever had been dismantling the structure at that location before he arrived had improperly dismantled the horizontal metal pipes and the scissors on the 3^rd level without removing the stepping board of the 4^th level.  He claimed that as a result there was nothing upon which to attach his safety belt.  When he came to unhook the 4^th level stepping board above his head, the yellow goal frames at each end of the stepping board no longer had the stability which would have been provided by the horizontal pipes and the “scissors”.  No serious problem had arisen when he unhooked the left end of the overhead stepping board, because he allowed the weight of the board still to remain on the goal frames.  When he unhooked the right side, the two goal frames at each side leant outwards causing the stepping board to slide to one side and causing him to lose his balance and fall with the stepping board.  He said he had fallen about 8 metres but based on the evidence which he gave about the height of the goal frames, it can only have been about 6 metres.

11. There were no eye witnesses to the incident, but the plaintiff called a co-worker, Chan Kai Chu, who said that he had been to the scene after hearing that someone had fallen and had seen the plaintiff on the ground.  He claimed that the plaintiff had been asked by one of his other workmates from where he had fallen, and the plaintiff had pointed upwards saying that he fell from the 3^rdlevel.  He said he remembered that he and fellow workers had dismantled the two goal frames on that level the following day.

12. The defendants’ dispute that the accident occurred in the manner alleged by the plaintiff.  They mainly rely on the inconsistencies between the plaintiff’s present account and what he told the 2^nd defendant’s safety officer Mr Alex Lo Yiu Lun and the medical staff at PMH shortly after the accident.  They also rely on Mr Lo’s evidence of the stage the dismantling had reached when he arrived at the scene.

13. Mr Lo’s evidence was that he arrived at the scene at about 5.15 p.m. (i.e. within half an hour of the accident).  His evidence was that the plaintiff was sitting on the ground and that photograph B34(b) depicts him with the plaintiff at the time.  He said that he personally spoke to the plaintiff about how the accident had happened, and that the plaintiff had indicated that he had fallen down the stairs from the first level staircase while he was carrying a stepping board.  He said that there was only one level of scaffolding above the ground at the time he attended the scene and  it would have been impossible for the higher levels to have been dismantled between the time of the accident and the time he arrived.  The plaintiff’s account to him that he had slipped while descending the stairs from the 1^st level formed the basis of the Form 2 (Notice of Accident to an Employee) which was submitted to the Labour Department, the Accident Report of 30 January 2003 and the Injury Report Form of 29 January 2005, all of which had been prepared by him.

14. A nurse at the triage station at the Accident & Emergency Department (“the A & E Department”) of PMH had recorded that the plaintiff himself had made a complaint of “jumping from 6 foot height at 1645 today”.  The doctor who examined the plaintiff in the A & E Department had recorded the history as “Jumped down one flight of stairs”.  The time he had registered at the A & E Department was 1730 hours.  Apart from the reference to “jumping”, both these histories are consistent with the account Mr Lo said that the plaintiff had given him at the scene in terms of the distance the plaintiff had fallen.

15. Subsequently, the plaintiff was admitted to the hospital at 1921 hours when a House Officer in the orthopaedic ward noted the history as “S/F jump down from 4 metres”.  It is agreed that S/F is shorthand for “slipped and fell”.

16. At 2130 hours that night, the doctor who saw him on that occasion made a note of the history as “Loss of balance and fell from a height 4 metres.”

17. It is argued on behalf of the defendants that the inconsistencies between the accounts given by the plaintiff at various stages and the inconsistency between those accounts and the account he has now given the court render the plaintiff’s present account wholly unreliable.

18. It is suggested that the changing description he gave to medical staff at PMH reflect the plaintiff focusing on compensation after having had a discussion with his brother who had arrived to visit him at the hospital and whom he insisted should make a report to the Labour Department.

19. I am unable to dismiss the account which Mr Angus Lo Yiu Lun says that the plaintiff gave him of the accident as a fabrication, a misunderstanding or as a result of mental confusion by the plaintiff.

20. Mr Lo impressed me as an honest and reliable witness.  I am satisfied that he would not have taken or caused to be taken the two photographs of the stairs leading from the ground to the 1^st level of the structure which have been produced in evidence had that not been the place the plaintiff had alleged that the accident had occurred.

21. His evidence of what the defendant had told him about the place from which he had fallen, is supported by the notes of the nurse at the triage station and the doctors in the A & E Department at PMH.  I do not consider it mere coincidence that the nurse should have recorded that the plaintiff had fallen “6 foot” and that the doctor had referred to “one flight of stairs”.

22. I have borne in mind the caution with which medical histories recorded by medical staff should be treated.  They are recorded in circumstances in which the patient is in pain and the priority is the treatment of the injuries.  On their own they would not be a reliable guide as to how the accident occurred, but in the circumstances of this case, they do provide support for Mr Lo’s evidence which cannot be ignored.  The different histories recorded by the nurse and the three doctors indicate that they were not simply relying on a prior history recorded by someone else.  Moreover, I am satisfied that they were not recording a history provided by someone other than the plaintiff.  The nurse specifically records that the history was provided by the plaintiff.  Insofar as the doctors are concerned, the plaintiff’s evidence is not that he had not told them how the accident had occurred.  He insisted that he had given each of them an account of the accident consistent with the account which he has given this court, in particular, that he had fallen with a board from a height of about 8 metres.  I am satisfied that the doctors would not have recorded the histories that they did had this evidence been true.  While the plaintiff would have been in pain following the accident, there is no suggestion that the plaintiff was suffering mental confusion.

23. I find that I can safely exclude the possibility that the plaintiff gave Mr Alex Lo the account of having fallen from the staircase to the 1^st level as a result of having been told to give a story to that effect by the foremen of the 1^st and 2^nd defendants.  At one stage in his evidence, the plaintiff did say that he had been told by them to tell the safety officer when he arrived that he had “rolled” from the 1^st level staircase rather than fallen from the 3^rd level.  This was not something that he had mentioned in his witness statement made prior to the trial.  In any event, his evidence was not that as a result of what he had been told to say he had given a false story to the safety officer.  His initial account was that he had simply told the safety officer that he had fallen from above without mentioning from what level.  Later, he appeared to be suggesting that he could not remember if he had ever spoken to a safety officer.  He was insistent, however, that he had never told Mr Alex Lo that he had fallen down the stairs.  Indeed, he maintained that he was sure that he had never seen Mr Lo at the scene, despite being shown a photograph with a figure bearing the name “Alex Lo” on his back squatting beside him.  I did not find the plaintiff’s evidence credible in this regard, I formed the impression that he was often making up his evidence to suit his own account.

24. I have considered the evidence of Mr Chan Kai Chu, the plaintiff’s witness.  Like Mr Alex Lo he did not witness the accident.  It is highly unlikely that the plaintiff would have given one version of how the accident occurred to Mr Chan and then a completely different version to Mr Lo a few minutes later.  I consider it more likely that Mr Lo has an accurate recollection of what occurred that day than Mr Chan.  Mr Lo being the safety officer of the 2^nd defendant, would have been concerned to establish the cause of the accident in order to compile an accident report and a Form II to be supplied to the Labour Department.  Mr Chan on the other hand had only been approached by the plaintiff to be a witness in April 2006, more than three years after the incident.  He frankly admitted that he and the plaintiff had gone over and discussed what had happened that day.  I consider that, probably inadvertently and perhaps as a result of his conversation with the plaintiff, he has misremembered the events of that day.  A minor matter but perhaps indicative of the state of his recollection is his evidence that when he arrived at the scene, he recollected the plaintiff looking upwards and at that time somebody was applying a bandage to the plaintiff’s feet.  Photographs B33(a) and (b) suggest that the plaintiff’s feet had not been bandaged even some minutes later when a safety officer had arrived.

25. I have considered the submissions that the plaintiff’s injuries are not consistent with a fall or a jump from the 1^st level.  I do not find that to be the case, particularly if he was jumping and carrying a metal stepping board.  

26. As I have already indicated I did not find the plaintiff a reliable witness as to what occurred that day.  In assessing his reliability, I also bore in mind his evidence relating to matters of quantum.  There was one matter that caused me particular concern and went beyond mere exaggeration of symptoms.  After hearing the evidence, I concluded that the 12 hospitals receipts (Exh. P4(1)-(12)) in respect of alleged hospital treatment on the Mainland are not genuine.  Those receipts were allegedly obtained by him monthly and were dated from 1 March 2003 to 1 February 2004.  They were very unsophisticated in appearance.  Each one bore a fee not only for a CT scan, but also an MRI scan and an X-ray.  It is very surprising that a hospital would utilize all three of these investigative resources for an injury such as that suffered by the plaintiff, not simply on one occasion but every month.  I found the fact that there was a fee for a laboratory examination on eleven of the twelve receipts very suspicious, bearing in mind the nature of the plaintiff’s injury.  I did not find the plaintiff’s explanation convincing.  What appeared to me conclusive evidence that these were not genuine documents were their serial numbers.  The proximity of the serial numbers bearing in mind that this was a hospital sophisticated enough to have an MRI machine and a CT scan machine was implausible enough, but the serial number on the receipt dated 1 October 2003 was earlier than the number on the receipt dated 1 March 2003.

27. I find that the plaintiff must be aware that these were not genuine documents.  He is, therefore, someone whose credibility as a witness is seriously impaired.

28. Bearing in mind all the circumstances to which I have referred, the plaintiff has not satisfied me on the balance of probabilities that the accident occurred in the manner he has alleged.  His claim must therefore fail.

29. For the sake of completeness and since I have heard evidence and submissions on these matters, I will briefly state my findings in relation to contributory negligence and quantum, had I accepted the plaintiff’s account of how the accident occurred.

30. I would not have found any contributory negligence on the part of the plaintiff by reason of the fact that he had not affixed his safety belt to the structure at the time of the accident.  On his evidence, he had been instructed to dismantle a structure which had been negligently partially dismantled by a fellow worker.  He could not have been expected to attach his safety belt to the “goal frames” which would themselves have become unstable as soon as he removed the stepping board above them.  There is no suggestion that it would have been appropriate for him to attach the safety belt to any other part of the structure.  On his evidence, there was no foreman or safety officer in the vicinity to whom he could point out his difficulties, nor is there any evidence that there was some other part of the structure nearby which he could commence to dismantle until a foreman or safety officer appeared.  In my view, he could not have been held responsible for endeavouring to comply with the instructions he had received in a situation not of his own making.

Quantum

31. Insofar as damages for pain, suffering and loss of amenities (“PSLA”) are concerned, I would have found that the plaintiff’s injuries fell below the “serious” category.

32. Having seen the video films of the plaintiff I consider there is exaggeration in his evidence that he would feel pain after walking or standing for more than 20 minutes.  On most of the occasions he was filmed, he was walking at a fairly brisk pace for relatively long distances with a barely perceptible limp.  He appeared to have no difficulty in climbing stairs.  However on the last occasion he was filmed, his pace was somewhat slower and limp slightly more pronounced.  I find that while in normal circumstances, his injuries caused him little discomfort or handicap, there are occasions when the injuries do cause him some mild pain and discomfort.  The principal residual disability is restricted eversion and inversion and mild limitation in dorsiflexion and planter flexion of both ankles.

33. Having taken into account the authorities cited to me by counsel, in particular Tse Hing Wan v. Choy Yuen Keung and others, HCPI 889/1998 (where the plaintiff suffered fracture of the os calcis of one foot) I am of the view that the appropriate award for PSLA in this case would have been $400,000.

34. The plaintiff’s pre-trial earnings of $14,715 were agreed.  The plaintiff was given sick leave from 22 January 2003 until 13 April 2004.  I find that thereafter the plaintiff should have been able to return to gainful employment albeit not his pre-accident employment.  The occupational therapist, Miss Casie Chan in a report dated 30 June 2004 referred to the plaintiff as having attended 32 sessions of a work rehabilitation programme which ended on 13 November 2003.  She reported :

“Functionally, his standing and walking tolerance were improved after training that was reasonable to fulfill his work demands.  Mildly improved lifting and carrying abilities were also demonstrated after the training program though only medium dynamic lifting level was achieved for his strength and endurance in our dynamic lifting assessment (Work sample Valpar 19).

As progress became static as shown in the latest assessment results, we had stopped the work hardening program and lighter duties were recommended if he planned to resume work.” 

35. The plaintiff’s own orthopaedic expert Dr Li Wing Kin saw the plaintiff later in that year on 9 December 2004 and confirmed that although the plaintiff would not be able to return to his pre-accident job as a construction site worker, he was capable of working in jobs that did not require prolonged continuous walking or standing, such as a watchman, cashier, salesman in a shop which permitted sitting, operating computers or office assistant.  This opinion coincided with that of the defendants’ orthopaedic expert Dr Arthur Chiang who saw him on 4 November 2005.

36. I accept Miss Lau’s submission that it would have been reasonable to expect the plaintiff to take up this sort of employment by 1 July 2004.  The initial period when he sustained full loss of earnings should therefore be 17.5 months.

37. I agree also with Miss Lau’s submission that although the plaintiff was only granted a second period of sick leave from 20 May 2005 to 12 July 2005 when the implants were removed, it would have been reasonable for him to have been off work for 3.5 months at this time.

38. The period during which he suffered full loss of earnings would therefore be 21 months.

39. His loss of earnings during that period would therefore be (21 x $14,715) = $309,015.

40. The total period between the accident and the commencement of trial on 15 November 2006 was 45.36 months.  I find that during the balance of 24.36 months when the plaintiff was not suffering full loss of earnings, he was capable of earning $7,500 per month.

41. His loss of earnings during that period would have been ($14,715 - $7,500) x 24.36 = $175,757.

42. His total loss of pre-accident earnings were therefore $484,772 ($309,015 + $175,757).

43. His loss of mandatory provident fund (“MPF”) contributions of 5% during that period would therefore have been $24,238.

44. Insofar as his post-trial loss of earnings are concerned, a multiplier of 10 was agreed.

45. His post-trial loss of earnings are therefore ($14,715 - $7,500) = $7,215 x 10 x 12 = $865,800.

46. His loss of MPF contributions on those earnings would be $865,800 x 5% = $43,290.

47. I accept the submissions of Miss Lau that since the plaintiff has made very little attempt to obtain employment since the accident, there is little evidence upon which to assess any loss of earning capacity he may have suffered.  I would nonetheless have been prepared to allow $50,000 under this head.

48. The following special damages were agreed :

Hospitalization fees	$3,536
Follow-up treatment (PMH)	$840
Occupational therapy	$1,960
Dr Chau Yat Sang	$1,390
Travelling expenses
(1)   for PMH follow up treatments	$336
(2)   for PWH treatments	$704

49. For reasons I have referred to previously, I would have disallowed the plaintiff’s claims for out-patient treatment in China and travelling expenses for such treatment.

50. I would have allowed the claim for tonic food to the extent of $3,815 which is admitted by the defendant.  I was not persuaded that the remaining receipts (Exh. P5) produced by the plaintiff were genuine, particularly as one of them bore a date when the plaintiff was not in the Mainland.

51. I would have allowed the claim for interest on general damages at 2% from the date of service of the writ until judgment.  I would have allowed the claim for interest on special damages, pre-trial loss of earnings and MPF at half the judgment rate from time to time from the date of the accident until judgment.

52. I would have given the defendants’ credit for the sum of $293,756.68 received by the plaintiff by way of employees’ compensation.

53. In view of my findings that the plaintiff’s claim must fail, I dismiss the plaintiff’s claim.

54. I make the following order nisi as to costs that unless either party applies within 14 days to be heard on the question of costs, the defendants’ costs be taxed if not agreed and be paid by the plaintiff, save that any costs occasioned by the early adjournment at 4.10 p.m. on 28 February 2007 be paid by the defendants.