POON CHI KWONG v. POON WING KEE (METAL WORK) AND ANOTHER

HCPI 1340/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.1340 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 when he fell some three metres in the cause of working at a construction site (“the Site”) in Shun Lee Tsuen Road, Hong Kong on 3 January 2002.

2. The plaintiff's claim is brought against the 1^st defendant, as his employer and the 2^nd defendant as the main contractor of the Site.

The accident

3. It is the plaintiff’s case that he was employed, at the time of the accident, as a welder by the 1^st defendant who is also his brother.  The 1^st defendant was a sub-sub contractor of the 2^nd defendant at the Site and was responsible for the installation of railings on the top of a cement retaining wall as well as along the steps by the side of the retaining wall.  At the top of this retaining wall there is a terrace going some distance inward from the top edge of the retaining wall.

4. The plaintiff had been working at the Site for some four or five days before the accident.

5. On the day of the accident, the plaintiff was carrying out the work of installing railings along the top edge of the retaining wall.  This retaining wall had a height of some three metres and was a sheer drop to the ground below.  By the side of the retaining wall there were steps.  In the earlier part of the day, the plaintiff and his co-workers had been installing railings along the top edge of this retaining wall and they were progressing in the installing of the railings towards the direction of the steps.  For the purpose of their installation of the railings, those railings to be installed along the edge of the retaining wall were placed lying flat along the ground at the top of the retaining wall and to be used as their work progressed along the top of the retaining wall towards the steps.

6. When the plaintiff and his team progressed in their work to almost the corner of the retaining wall, about some 10 metres or so from where that side of it adjoins the steps, the plaintiff found that the railing to be used for that part of the retaining wall, was placed in such a position as to obstruct his installation of the metal plates on the top of the cement wall.  The metal plates needed to be fixed to the top part of the wall with expansion screws, before the legs of the railings could be welded onto the metal plates so as to fix the railings on the top of the retaining wall.

7. As a result, the plaintiff and a co-worker took upon themselves to remove the railing (lying fact on the ground at the top edge of the wall) intending to relocate those railings to the side of the retaining wall where it adjoins the steps.  The co-worker carried the railings in front and the plaintiff carried the railings at the end.  When the co-worker had to negotiate the right turn at the corner of the retaining wall, and as he did so, the plaintiff’s feet slipped on the sand and stones on the top part of the retaining wall, lost his footing and fell off the edge of the retaining wall down the height of three metres landing on the ground below.

8. The plaintiff lost consciousness until he woke up again in hospital.  He was later diagnosed to have suffered multiple fractures to his left knee, right ankle, right thighbone, as well as the first and third lumbar vertebrae.  His injuries will be dealt with in greater detail when I come to deal with the issue of quantum.

The plaintiff’s claim

9. It is the plaintiff’s contention that the top of the retaining wall was unfenced and there was no work platform or safety net to prevent workers working on the terrace on top of the wall from falling off it.  It is also the plaintiff’s case that he was not provided with any safety belt, harness or lifeline which could have prevented him from falling over the edge of the wall and landing onto the ground below thereby sustaining these injuries.

10. The plaintiff claims against the 1^st defendant for negligence and breach of employer’s duty.

11. The claim against the 2^nd defendant, being the main contractor at the Site, is put on negligence, breach of occupier’s liability and breach of statutory duty.

1^st defendant’s defence

12. The 1st defendant was not represented and appeared in person.

13. As already stated, the 1^st defendant is the elder brother of the plaintiff, and perhaps not surprisingly, did not dispute any of the factual issues raised by the plaintiff.

14. In fact the only “defence” put forward by the 1^st defendant to the plaintiff’s claim was that after the accident to the plaintiff, he had spoken to the Safety Officer of the 2^nd defendant who confirmed to him that the 2^nd defendant, being the main contractor, would be lodging a claim for compensation with the 2^nd defendant’s insurers and therefore it was not necessary for the 1^st defendant to make any claim in respect of this accident with the 1^st defendant’s insurers.

15. This was indeed confirmed to be so by Mr Ho Wai Leung, the Safety Officer of the 2^nd defendant at the material time, when he was cross-examined by the 1^st defendant.

16. Be that as it may, while it may be relevant to any issue of contribution or indemnity arising between the 1^st and 2^nd defendant, strictly speaking it is not a defence to the plaintiff’s claim against the 1^st defendant in this case.

Defence of 2^nd defendant

17. The 2^nd defendant raised a number of factual issues in its defence.

18. Firstly, it called into question how the accident occurred despite the fact that it had no factual eyewitness who could contradict the evidence of the plaintiff as to how the accident occurred.  In this respect the 2^nd defendant seeks to rely on a signed statement given by the plaintiff to its Safety Officer on 7 January 2002 in which it is alleged that the plaintiff had given a rather different version as to how the accident came about.

19. The body of that statement states that the plaintiff was constructing an iron handrail which was the last step of the project after all slope procedures on the Site was finished.  When the plaintiff and a colleague went to tidy up the material at about 4.30 p.m. the day of the accident, they used the steps on the slope to transport a railing when suddenly the plaintiff’s foot slipped and lost balance.  The plaintiff fell several steps down the steps and then fell down the slope surface then down onto the ground.

20. There followed some questions and answers and when asked what was the environment like where he slipped and fell, the plaintiff was recorded in that statement to have answered that “there was no puddles or odds and ends accumulated”.  When further asked whether machinery or human factor was involved, the plaintiff answered that it was due to his carelessness.

21. Reliance is also placed by the 2^nd defendant on differences between the plaintiff’s witness statement and his oral evidence in that in his witness statement, the plaintiff stated that he and his colleague were intending to move the railing they were carrying down the staircase (steps) on the slope while in his oral evidence he said they did not intend to move the railing down the steps but only to place it by the side adjacent to the steps on the terrace.

22. The 2^nd defendant also challenge the veracity of that part of the plaintiff’s oral evidence that there were piles of debris and rubble near the slope at the inner part of the terrace on top of the retaining wall on the basis that there was no mention of debris or rubble in the witness statement of the plaintiff, but that this evidence of the plaintiff was only mentioned by him for the first time when giving oral evidence.

23. It is therefore submitted by the 2^nd defendant that because of such major discrepancies, the real reason why the plaintiff fell was due to his tiredness and carelessness, and not because of any slippery sand or debris on the ground causing him to slip.  Moreover, if the plaintiff had fallen on the steps, then it is doubtful whether the main contractor would be liable at all.

24. There is another factual issue raised by the 2^nd defendant, namely, whether at the material time of the accident, the plaintiff was in fact an employee of the 1^st defendant or whether he was a partner.  It is contended by the 2^nd defendant that while this factual issue does not affect the question of the 2^nd defendant’s liability in this case, it nevertheless has a bearing on the question of contributory negligence in that if the plaintiff was a partner of the 1^st defendant, then the plaintiff would be under a greater duty to provide a safe system of work for his workers including himself.

25. This last factual issue whether the plaintiff was a partner of the 1^st defendant is raised by the 2^nd defendant notwithstanding that the 1^st defendant has at all times admitted that the plaintiff was an employee of the 1^st defendant at the time of the accident albeit that the two of them had been partners since March 1989 until the end of December 2001.  In other words, their partnership ended just three days before this accident happened.

Assessment of the evidence and Finding of Facts

26. In so far as the first factual issue is concerned, the statement given by the plaintiff to the Safety Officer and dated 7 January 2002, it was the plaintiff’s evidence that the statement had been prepared and written out by Mr Ho and taken to the hospital where the plaintiff was simply asked to sign it at a time when he had just had an operation and was not feeling well enough to even bother with its contents.  He was simply told by Mr Ho that he had to sign it for the purposes of getting insurance compensation for the accident.  As a result the plaintiff signed the statement as told without even bothering to read it.

27. The plaintiff denies that the contents of the statement came from him.

28. When Mr Ho gave his evidence, he said that he had visited the plaintiff twice in hospital.  On the first occasion, which he thought was some two to three days before 7 January, he had obtained an oral account from the plaintiff as to how the accident occurred.  He had made some notes of it and then went back to his office where he had prepared this statement based on what the plaintiff had told him.  On the second occasion, namely 7 January, he returned to the hospital where he explained the contents of the statement to the plaintiff and showed the statement to the plaintiff but the plaintiff declined to read it himself.  The plaintiff then signed the statement.

29. In assessing these two different versions of the evidence, I am greatly troubled by the fact that when the plaintiff was cross examined, none of this evidence from Mr Ho (namely that he was at the hospital on two occasions and had obtained an oral account from the plaintiff on the first occasion, then later prepared a statement based on that oral account given by the plaintiff for the plaintiff to sign on the second occasion) was put to the plaintiff in cross-examination when the plaintiff in his evidence had made it quite clear that the plaintiff was denying that the contents of the statement had come from him.

30. Moreover, although photographs of the Site where the plaintiff says the accident occurred were produced at trial, no attempts had been made by the 2^nd defendant to show where it was that the accident happened if the account given in the statement of 7 January was true.  It is not entirely clear that the steps mentioned in the statement of 7 January are the same steps referred to by the plaintiff as being adjacent to the terrace on top of the retaining wall from which he fell off.  This is important because the account given in the statement of 7 January seem to suggest that the plaintiff fell down several steps first, then fell down the slope before hitting the ground for as far as could be seen from the photographs produced, the steps adjacent to the retaining wall from which the plaintiff fell lead straight down to the bottom without there being any slope in between.

31. Thirdly, the injuries sustained by the plaintiff being fractures of the ankle, knee, thigh bone and two of his lumbar vertebrae would tend to suggest that the fall was a heavy one, such as falling a sheer drop of three metres off the top of the retaining wall, rather than a fall down several steps, then down a slope and onto the ground.

32. Indeed that much was conceded by Dr Richard Lau, the defendants’ expert when at paragraph 3 of his comments in his medical report dated 24 March 2004, he stated that the injuries sustained by the plaintiff was compatible with the accident; and the accident as told to Dr Lau (stated under “History” in the same report) being that the plaintiff slipped and fell from about six metres high.

33. Given all the circumstances stated above, I am not disposed to believe the account given by Mr Ho for the 2^nd defendant.  I prefer the evidence given by the plaintiff where they differ on this first issue.

34. Turning now to deal with the second disputed factual issue, namely the difference arising from the witness statement of the plaintiff and his oral evidence.

35. Firstly, it should be noted that the difference relied on by the 2^nd defendant is not such a significant difference because in both the version given in the plaintiff’s witness statement and in his oral evidence, they were consistent to the extent that it was in making the turn when rounding the corner at the top of the retaining wall that the plaintiff came close to the edge of the retaining wall, slipped and fell of that edge.

36. The difference therefore only relates to whether the plaintiff had intended to place the railings which he and his colleague was carrying on the side of the terrace adjacent to the steps (as per his oral evidence) or whether they had intended to carry the railing down the steps after making that turn (as per his witness statement).  In any event, that stage was never reached since the plaintiff fell down from the edge of the retaining wall when making that turn.  The difference really goes to what they had intended to do with the railing which they were carrying at the time the accident happened.

37. As such this is a matter which really goes to credit.

38. Under cross-examination, the plaintiff explained that there were several pieces of railings that had been placed on that part of the terrace and that some of those railings would not be used in the work.  The reason for that was because when they started, it was prudent for them to have placed a bit more railing than was necessary, in case they were needed, on the terrace on top of the retaining wall.  Therefore there were some excess railings which ultimately would have to be taken back down to the lorry parked at the bottom of the retaining wall and for which they would have to be taken down via the steps.

39. However, it was also the evidence of the plaintiff that when the accident happened to him, all that he and his colleague intended was to relocate the railings onto that side of the terrace adjacent to the steps in order to facilitate them fixing the metal plates onto the ground where the railings had been lying.

40. I accept the explanation so given by the plaintiff and in light of that explanation, it is easy to see how the differences in his witness statement as opposed to the version given by him in oral evidence came about.

41. In my view, that difference in the two versions does not in the least affect the credibility of the plaintiff in his recounting how the accident occurred.

42. I turn now to deal with the plaintiff’s evidence as to the debris and rubble piled on the inner part of the top terrace.  The top part of the retaining wall which is really a terrace, was at times referred to as the cement platform in the evidence at trial.

43. The 2^nd defendant complains that in his witness statement, the plaintiff had never mentioned about the debris and rubble, which, in his oral evidence he said caused the narrow passageway of some six to seven feet width from the edge of the retaining wall that was left to him and his workers from which to work.

44. Whilst it may be true that no direct reference was made in his witness statement as to the rubble and debris piled there, however, it was always implicit in his witness statement that they had only a narrow passageway left to them to make the turn when they were carrying the four metre long rail when he stated in his witness statement as follows :

“There was a turn, and as the rail was about 4 m long, when we reached the turn, we needed to turn around slowly in order to go down the narrow stairs.  There was no rail or other safety equipment on the top of the slope nor was there any on the turn.  We needed to try very hard to transport the rail and to make the rail pass through the turn.  There were a lot of small sandstones on the ground we walked on; but at the same time, we needed to hold the long and heavy rail.  Suddenly, I slipped and lost balance, I fell down on the ground which was 3 m high.”

45. The only significance of the pile of debris and rubble was that that pile had created a situation which left the plaintiff and his colleague with a passageway of some six to seven feet wide counting from the edge of the retaining wall in order for them to negotiate a turn at the corner when carrying the railing.

46. There is therefore no inconsistency in the plaintiff’s version given in his witness statement and in his oral evidence that they were left with a narrow passage to negotiate the turn when carrying a four metres long and heavy rail between the two of them.

47. Indeed, there is to be found in the Accident report of the Safety Officer, Mr Ho in paragraph 4 of that report under “Cause of Accident” a reference to “limited working space” which tends to support the plaintiff allegation of the narrow passageway left to them caused by the pile of debris and rubble.

48. Given all the circumstances, I do not see that the failure of the plaintiff to specifically mention the pile of rubble and debris in his witness statement affects his credibility or his account of how the accident happened in the slightest.

49. Lastly, I now deal with the issue whether the plaintiff was a partner or an employee of the 1^st defendant.

50. It is the evidence of the plaintiff that he had been a partner with his elder brother in the 1^st defendant company since March 1989, but because of constant disagreement between them, and in particular an argument that they had in the latter part of 2001 when fees owed to the partnership could not be recovered in respect of another project the partnership had undertaken, the two of them fell out and the partnership ceased at the end of December 2001 when the plaintiff withdrew his shares in the partnership, just three days before the accident to the plaintiff.  After the partnership came to an end, the plaintiff remained with the 1^st defendant company but only as an employee.  At the time therefore of this accident on 3 January 2002, the plaintiff was therefore an employee of the 1^st defendant.

51. This was confirmed by the 1^st defendant, Poon Chi Wah.

52. The 2^nd defendant, despite the fact that it had adduced no direct evidence to challenge the evidence of the plaintiff and the 1^st defendant in this aspect of the case, does not accept that to be the position.

53. The 2^nd defendant points to the fact that notification was only given by the 1^st defendant to the Business Registration as to the cessation of the partnership only some 11 months after the date of cessation of the partnership.  The 2^nd defendant seeks also to rely on the fact that Kwong Chi Choi, the person in charge of Nam Fung Engineering Co., a sub-contractor of the 2^nd defendant and who had sub-sub-contracted the welding works to the 1^st defendant, said in evidence that he had always regarded the plaintiff to be a partner of the 1^st defendant and had no knowledge of the cessation of that partnership.

54. On the other hand, there is also documentary evidence from the Inland Revenue Department before this court that the Inland Revenue Department had computed taxation in respect of the 1^st defendant and the plaintiff for the year 2001/2002 on the basis that the partnership between them in the 1^st defendant company had ceased at the end of December 2001.

55. The explanation given by both the plaintiff and the 1^st defendant as to the delay in notifying the Business Registration Section of such cessation of partnership rested with the accountant engaged by the 1^st defendant.

56. Looking at all the evidence relevant to this issue in the case and having heard the explanation given for the delay in notifying the Business Registration Section of the cessation of the partnership between the plaintiff and Poon Chi Wah in the 1^st defendant, I do accept the evidence of the plaintiff that the partnership was ended on 31 December 2001.  I also accept his evidence that he continued to work as an employee with the 1^st defendant after he withdrew from the partnership and it was in that capacity with the 1^st defendant when this accident happened.

57. In coming to this finding, I have placed very little weight on the evidence of Kwong Chi Choi for the simple reason that it was quite apparent from his evidence that his belief that the plaintiff was all along the person in charge of the 1^st defendant relates to their past dealings when the plaintiff was in fact a partner of the 1^st defendant.  Kwong further admitted that he had no actual knowledge of the internal arrangements between the plaintiff and his brother Poon Chi Wah as to the ownership of the 1^st defendant.  There being no evidence that Kwong was either at the Site or had even spoken to the plaintiff on the few days before the accident, it was not surprising that he held the belief which he did, due to their past dealings, which belief related to the time when the plaintiff was a partner in the 1^st defendant company.

58. Having heard the evidence of the plaintiff and having seen him give evidence from the witness box, I have no hesitation in accepting his evidence.  He is a simple, straightforward and honest witness.  

59. I also accept the evidence of the 1^st defendant, albeit that the evidence which he adduced does not really make out any defence to the plaintiff’s claim.

60. As for Mr Ho, quite apart from the statement alleged to have been taken by him from the plaintiff on 7 January 2002 which I have already dealt with above, there are some other areas in his evidence which causes me great misgivings as to his credibility.

61. The provision (or non-provision) of safety belts and harness to the plaintiff at the Site while working on top of the unguarded retaining wall was and had all along been a main issue in the plaintiff’s case.

62. Quite apart from the fact that there was total silence as to safety belts, harness or lifeline in his Accident Reports in respect of this accident, it was stated in paragraph 16 of his witness statement (which he adopted as his evidence-in-chief) that he was fully aware that a full body harness anchored to an independent lifeline had been provided to the plaintiff and other workers by Nam Fung Engineering Co.

63. In his oral evidence, he elaborated on this aspect saying that the 2^nd defendant did not provide such safety equipment but left it to Nam Fung Engineering Co. to do so because there is an agreed term in the sub-contract between the 2^nd defendant and Nam Fung Engineering Co. that Nam Fung was to provide such safety equipment.

64. That sub-contract between the 2^nd defendant was not produced into evidence and furthermore, that evidence of Mr Ho was contradicted by the evidence of Kwong Chi Choi of Nam Fung, who was a witness called by the 2^nd defendant, that he was not aware of such a term between the 2^nd defendant and Nam Fung whereby Nam Fung had to provide the safety equipment including body harness, safety belts or lifeline to the workers sub-contracted by Nam Fung working at the Site.

65. Furthermore, Mr Ho also gave evidence that when he made an inspection of the Site at about 10 a.m. on the morning of the day of the accident, he did not see any of the metal workers engaged to install the railing on top of the retaining wall wearing safety belt or harness because they had not yet started work at that time but was still doing the preparation prior to starting their work.  At the time he even reminded the foreman of Nam Fung that the metal workers should put on safety belts when they start work on top of the retaining wall installing the railings.

66. I have much difficulty accepting Mr Ho’s evidence.  That evidence of his was designed to exculpate himself and/or the 2^nd defendant from responsibility in the matter when it must have been quite apparent that the plaintiff was not wearing any safety belt or harness else he would not have sustained such severe injuries when he fell of the top edge of the unguarded retaining wall.

67. I find it quite inconceivable that if Mr Ho had done his work properly as a Safety Officer on the Site and carried out his inspection with sufficient care that he could have failed to notice that the metal workers including the plaintiff was not wearing the necessary safety belts, harness or lifeline when working atop the unguarded retaining wall.

68. In all the circumstances in this case, I do not accept his evidence.

Liability

69. In so far as the 1^st defendant is concerned, he is the employer of the plaintiff.  He has a non-delegable duty to ensure that the plaintiff is reasonably safe in the system of work as well as the place of work.

70. On the facts of this case as I have found it, the 1^st defendant was clearly in breach of that duty and must be liable to the plaintiff in his claim herein.

71. In my view, the matters put forward by the 1^st defendant, namely that he was told by the 2^nd defendant that the 2^nd defendant would be making a claim for compensation to their insurers in respect of this accident to the plaintiff, and therefore there was no need for him to make a similar claim to his (the 1^st defendant’s) insurers, cannot be an answer or a defence to the plaintiff’s claim against the 1^st defendant for negligence and breach of employer’s duty.

72. That may only be relevant to any question of contribution or indemnity as between the 1^st and 2^nd defendants.  That question does not arise in the present case, there being no Contribution Notice served as between the defendants.

73. As for the 2^nd defendant, being the main contractor on Site, there can be no question but that the 2^nd defendant is an occupier of the Site within the meaning of the Occupier’s Liability Ordinance (“OLO”).  It therefore owes to the plaintiff, being a visitor on the Site, the common duty of care.

74. In so far as the OLO is concerned, the 2^nd defendant submits that it has a defence under section 3 (3)(b) which reads :

“(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 a proper case –
	(a)	….
	(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.”

75. Relying on these wording of the sub-section, the 2^nd defendant says that the plaintiff, in carrying out his work on top of the retaining wall ought to have appreciated and guarded against the way he saw fit by the 2^nd defendant.

76. It was further submitted by the 2^nd defendant that if the risk arose out of the way in which the plaintiff and his co-worker took upon themselves to carry the railing when the accident happened, then it was due to the system of the work and not due to any fault or liability on the part of the occupier of the Site.

77. On the facts as found by me above, the accident was not caused from any special risk ordinarily incidental to welding works for which the plaintiff was engaged.  The risk from which this accident arose came about because of the unguarded top edge of the retaining wall, the narrow passage left to the plaintiff and the other metal welders to work from and the failure to provide them with the necessary or adequate safety belts, harness or lifeline to prevent falling off that unguarded edge when working there.  It therefore goes as much to the condition of the Site where the plaintiff was working as to the system of work in the way that it was carried out.

78. The 2^nd defendant seek also to rely on section 3(5) of the OLO which reads :

“The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

79. It was submitted that when the plaintiff carried out the work in the way that he and his colleague chose to, with full knowledge of the edge at the top of the retaining wall being unguarded, he therefore chose to accept that risk willingly and no obligation is imposed on the 2^nd defendant by the common duty of care.

80. However, in this respect, the evidence from the plaintiff was that firstly, if he had been provided with safety belt, harness or lifeline, he would have used those safety equipment when working on top of the retaining wall, and secondly, that if he had gone to the Site office to ask for such safety equipment, he felt that he would likely have been ignored and told that he need not continue working there any more.  Given that evidence reflected the mental state of the plaintiff, I cannot see that it is open to the 2^nd defendant to say that the plaintiff had willingly accepted the risks of falling off the edge at the top of the retaining wall.  It was more a case that the plaintiff felt he had to accept such risks because there was little else he could do without running the risk of losing the job.

81. In all the circumstances, and for the reasons given, I do not accede to the submissions of the 2^nd defendant that either of the two sub-sections in the OLO referred to above assists the 2^nd defendant on the issue of liability.

82. I come to the conclusion upon all the evidence in this case and on the facts as found that the 2^nd defendant was in breach of its common duty of care to the plaintiff under the OLO in failing to reasonably safeguard the plaintiff when working along the unguarded top edge of the retaining wall from falling over that edge.  The unguarded top edge was a potential hazard and the risk of falling over was always there and therefore reasonably foreseeable to the 2^nd defendant.

83. No steps at all were taken to minimize that risk by the 2^nd defendant.

84. Even granted that it may not have been reasonable for the 2^nd defendant to erect scaffolding for that purpose on the basis that the cost of scaffolding may be so exorbitant that it would not be proportionate to the risk, some other less expensive form of safeguard could and should have been employed such as a safety net, or safety belts, harness with proper lifeline anchorage.

85. Where no such safety precautions were taken or even attempted to be taken by the 2^nd defendant, it must, in my view, bear the responsibility and be liable to the plaintiff for breach of the common duty of care.

86. I therefore find the 2^nd defendant liable to the plaintiff in this matter.

Contributory negligence

87. Contributory negligence is based on fault of the plaintiff.

88. On the facts as I have found, the only basis for contributory negligence would be the way in which the plaintiff and his co-worker decided to move and carry the railing given the circumstances within which they had to work and the fact that they were fully aware of the narrow passageway, the unguarded edge at the top of the retaining wall and that there was a sheer drop of some three metres down to the ground below.

89. In those circumstances fully known to them, they decided to pick up the railing (which was lying flat on the ground) and to carry it in the same position, i.e. in the flat position.  According to the plaintiff the dimensions of the railing was four metres long, about one metre in width.  Not surprisingly therefore, when they had to negotiate the bend, both the length and the width of that railing made it such that when the co-worker in front began to turn right, the plaintiff, who was carrying the rear of the railing was push to his left, i.e. towards the edge of the retaining wall, bearing in mind that he only had a passageway of about six feet.

90. In cross-examination, the plaintiff was asked why they decided to carry the railing in the flat (or horizontal) position and not vertically so that the width of the railing would not have contributed to their difficulty when negotiating the bend thereby giving them more room to manoeuvre.  To this question the plaintiff answered that since they had to put down the railing in a flat position after negotiating the bend, it was more convenient for them to carry the railing in the flat position so that when it came to putting down the railing, they could just do so.  In other words, if they had carried the railing in a vertical position, it would involved more work since they would have to tilt it to the vertical position after lifting it up and then after negotiating the bend, they would again have to tilt it back to the flat position when setting it down.

91. In my view this is a classic case of contributory negligence where the worker (the plaintiff) takes a short cut at the sacrifice of his own safety.

92. On this basis therefore I find there to have been some contributory negligence on the part of the plaintiff.

93. In so far as having to apportion the plaintiff’s contributory negligence, I take the view that the failure of the 1^st and 2^nd defendant to provide the necessary safety equipment to be by far the primary cause of the accident.  Such safety equipment would have been the primary measures in keeping the workers working there reasonably safe.

94. The method by which the plaintiff and his co-worker chose to go about transporting the rail came a long way second.  I say that because that risk, arising from carrying the railing in a flat position would only be a risk to the person carrying the rear of the railing and also would arise only when they were negotiating the bend at the corner.  As such it is more an error of judgment in that they failed to think ahead as to the consequence of that manoeuvre in transporting the railing the way they did.

95. Given all the circumstances and the reasons stated above, I am of the view that the plaintiff’s contributory negligence should be assessed at 10%.

96. Lastly, although contributory negligence was only pleaded and relied on by the 2^nd defendant, but not the 1^st defendant, the finding of contributory negligence will benefit both defendants in so far as the quantum of damages will be reduced by the amount of the contributory negligence of the plaintiff.

QUANTUM

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

Injuries and Treatment

98. After the accident, the plaintiff was taken by ambulance to the United Christian Hospital in an unconscious state.  He was diagnosed to have sustained fractures in the left knee, right ankle and right thighbone.  There were also spinal fractures at the first and third lumbar vertebra.

99. The fractures in the lower limbs were treated by operation while the fractures in the lumbar vertebra and the right pilon crack fracture were treated conservatively.

100. Open reduction and Russel Taylor Nailing was performed for the fractured right femur, and external fixation was performed for the left tibial plateau and fibula on 4 January 2002.  Open reduction and internal fixation were performed for the right medial malleolus on 30 January 2002.

101. The plaintiff was discharged from hospital on 13 April 2002 after hospitalization for some 100 days.

102. The external fixator for fixing the left knee fracture was removed in June 2002 and the hardware for fixing the left ankle fracture was removed in September 2003.

103. The lumbar fractures were treated with bed rest for nine weeks, then a rigid corset for two to three weeks which was then replaced with soft corset for one to two months.

104. The plaintiff received physiotherapy from May 2002 onwards.  He also received occupational therapy up till November 2002.  After discharge from hospital, the plaintiff continued to receive outpatient treatment regularly.

105. The plaintiff was examined by Dr Au Ka Kau, an orthopaedic expert instructed by the plaintiff, on 23 December 2003.

106. In his report, Dr Au stated that there was a gibbus at L1 level of the lumbar spine.  There was pounding over the mid lumbar spine and spinal movement was limited.  There was no leg length discrepancy but the plaintiff could not squat fully.  The left knee joint movement was limited.  There was tenderness over medial and lateral facets of the left patello-femoral joint with significant crepitation on bending of the left knee.  There was no laxity of the left knee ligaments.  The right ankle joint movement was limited.  As a result of the injuries the plaintiff has right ankle pain, left knee pain and back pain.

107. According to D Au, the impairment is permanent and the plaintiff will have on and off exacerbation of his back pain with exertion.  Dr Au assessed the total body impairment to be 27%.

108. The plaintiff was also examined by Dr Richard Lau, an orthopaedic expert instructed by the 2^nd defendant, on 11 March 2004.

109. Dr Lau stated in his report that the injuries were compatible with the accident that occurred.  All the plaintiff’s fractures have solidly united.  There was no muscle wasting in the lower limbs.  He has reached maximal medical recovery and no further treatment is necessary.  The plaintiff has residual pain in his back.  There was also residual pain and stiffness of the left knee, as well as the right ankle.  Dr Lau assessed the permanent impairment to be 23%.

Pain Suffering and Loss of Amenities

110. The plaintiff claims $700,000 for PSLA.

111. The defendant on the other hand suggests that $450,000 would be sufficient compensation to the plaintiff for PSLA.

112. I am of the view that taking account of all the injuries and disabilities to the plaintiff resulting from those injuries, and although the plaintiff is still left with residual pain and stiffness from those injuries, the fractures from which those disabilities resulted have solidly united and his medical treatment has reached maximal.  Those injuries, being multiple fractures leaving recurrent pain, puts the plaintiff fairly within the “Serious Injury” category as it is understood in the case of Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

113. In the light of the injuries suffered and the resultant disabilities to the plaintiff, the compensation for PSLA is assessed at $550,000.

Pre-trial loss of earnings

114. It is common grounds that the plaintiff’s pre-accident earnings as a welder was $18,443 per month.

115. There is also no dispute that the plaintiff was given sick leave by government doctors from the date of accident until April 2004, some 28 months.

116. After the sick leave period expired, the plaintiff tried to resume his pre-accident work as a welder with the 1^st defendant but after seven days of working, found that he could not cope with the work as his disabilities prevented him from (inter alia) squatting.

117. Between then and until the trial, the plaintiff had tried a host of other jobs but was not able to hold down any one job for long because of his disabilities resultant from the accident injuries.

118. At the time of the trial, the plaintiff was doing casual work of a light and sedentary nature with Chuen Tat Construction Company earning about $3,500 per month.  He had been engaged in this work since mid-September 2004.

119. For the 28 months of sick leave, the plaintiff’s loss of earnings will be assessed as total loss.  This works out at $18,443 x 28 months giving $516,404.

120. For the remaining 20 months after the sick leave period, I accept that the plaintiff has done as much as he could to try to obtain alternative employment in the various jobs that he had tried out, albeit unsuccessfully.  His loss of earnings for those 20 months will be assessed as partial loss at $18,443 per month less what the plaintiff has actually been able to earn during this period from the various jobs he was engaged in.  This comes to $18,443 x 20 – ($4,900 + $2,500 + $4,150 + $1,200 + $49,000) which gives $307,110.

121. Total pre-trial loss of earnings therefore comes to $823,514.

Future Loss of Earnings

122. The plaintiff was 49 at the time of the accident, and now 53 years old.

123. Mr Wong for the 2^nd defendant suggests a multiplier of 5 relying on the Table of Multiplier wherein a multiplier of 5 was used in the case of a steelbinder aged 54 at trial and also in the case of a skilled electrician aged 53 at trial.

124. Mr Pedruco for the plaintiff accepts that the pleaded multiplier of 8 is probably too high in this case, but says a multiplier of 7 would be appropriate.  In so saying Mr Pedruco has not come out with anything to support that suggestion.

125. In all the circumstances of this case, especially taking into account the work of a welder is heavy manual work, I accept the suggestion of the defendant that the multiplier to be used in this case should be 5.

126. As for the multiplicand, it will be the pre-accident earnings less the amount of his present monthly earnings with Chuen Tat Construction Company $18,443 - $3,500 = $14,943.

127. Future loss of earnings therefore comes to $14,943 x 12 x 5 = $896,580.

Loss of MPF

128. Loss of pre-trial MPF comes to 5% of $823,514 = $41,176.

129. Loss of future MPF comes to $896,580 x 5% = $44,829.

Loss of Earnings Capacity

130. The 2^nd defendant is prepared to concede an amount of $84,000.  Based on the present amount the plaintiff is capable of earning in his present condition, namely $3,500, that sum conceded by the 2^nd defendant translates to represent two full years of his present earnings.

131. That would be a reasonable amount to compensate the plaintiff for this head of claim and will be awarded.

Special damages

132. Medical expenses and traveling expenses claimed by the plaintiff amounting to $19,544 totally is disputed by the defendants and will be allowed.

133. The 2^nd defendant disputes the claim for tonic food claimed by the plaintiff at $10,000.

134. No receipts having been provided by the plaintiff for this item, on a rough and ready approached, I accede to the suggestion of counsel for the 2^nd defendant that $5,000 will be a reasonable amount to award for tonic food.

135. Total special damages therefore comes to $24,544.

Future medical expenses

136. The plaintiff’s claim $30,000 as being the future costs of operation for removal of the implants and nails in his fractured right thighbone.

137. This amount is the costs of such operation if done in the private sector.

138. No good reason has been put forward why such an operation, if it should become necessary, should be performed in the private sector when those operations fixing the implants and nails in the fractured thighbone of the plaintiff was performed in government hospitals.

139. In my view such an operation, if it should become necessary, can and should be carried out in government hospitals and accordingly I decline to make an award as claimed under this head.

Interests

140. The usual rates of interests should apply in this case, namely, 2% p.a. for general damages for PSLA from the date of the Writ and 4.617% p.a. (being half judgment rate) for loss of pre-trial earnings and pre-trial MPF as well as all special damages.

Summary of Loss

141. The summary of loss is as follows :

PSLA	$550,000
Pre-trial earnings loss and MPF	$864,690
Future earnings loss and MPF	$941,409
Loss of earnings capacity	$84,000
Special damages	$24,544
Interests on PSLA	$25,208
Interests on Pre-trials and Specials	$162,855
Total :	$2,652,706

Conclusion

142. This total amount of quantum will be reduced by 10% to take into account the contributory negligence of the plaintiff in this matter.  The final figure therefore comes to, after taking account of contributory negligence, $2,387,435.40.

143. There will therefore be judgment to the plaintiff against both defendants (jointly and severally) for the sum of $2,387,435.40.

Costs

144. There will be a costs order nisi that both defendants do pay the plaintiff’s costs of this action against them, to be taxed if not agreed.