LEUNG CHUN PONG v. CHENG MAN TUNG t/a CHUN YEUNG MACHINE MAINTENANCE WORKS

HCPI 296/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 296 OF 2007

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J U D G M E N T

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Introduction

1.  This is an action for damages in personal injuries by the Plaintiff who worked as a mechanic in the Defendant’s workshop.  The Plaintiff and the Defendant were together testing a hydraulic device in the Defendant’s workshop on 29 January 2005 when a hose from the device flung.  The metal coupling attached to the hose ruptured the Plaintiff’s right eye, resulting in permanent blindness.  The Plaintiff relies on three causes of action, namely negligence, breach of employment contract and breach of statutory duty.  The Defendant’s primary defence is that the Plaintiff was an independent subcontractor to whom no duty of care was owed by the Defendant.  His secondary defences are that the injuries suffered by the Plaintiff were not caused by the Defendant’s breach of duty and that the Plaintiff was contributory negligent.

2.  The major issue between the parties is whether the Defendant owed the Plaintiff the duty of care.  This duty may arise under the broad neighbourhood principle in negligence or may be imposed by employment contract or by statute.  If the Plaintiff and the Defendant were in an employment relationship, the duty of care could be readily inferred and the standard of care would be higher.  The nature of the relationship between the Plaintiff and the Defendant is determinative of the nature of the duty of care and standard of care.  If the duty was owed to the Plaintiff, the remaining issues are whether the Defendant was in breach of the duty of care and whether the Plaintiff suffered injury as a result.

THE RELATIONSHIP BETWEEN THE PARTIES

The law

3.  The latest approach to the question whether a person was an employee, as pronounced by the Court of Final Appeal in Poon Chau Nam and Yim Siu Cheung [2007] 1 HKLRD 951, is to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.  This involves a nuanced and not a mechanical approach: painting a picture from the accumulation of detail.  The indicia include the degree of control exercised by the alleged employer; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task.

The factual background

4.  The followings are common ground.  The Defendant operated a machine maintenance business in Tuen Mun.  He provided services to many container yards and ships.  He also subcontracted works to and from other workshops including Kwok Ying Workshop.  It was under those circumstances that he came to know Mr Hung Kwok Yu (“Hung”) of Kwok Ying Workshop who introduced the Plaintiff to him.

5.  Hung is a very experienced mechanic with more than thirty years’ experience in the trade.  He had operated machine workshops under different names at different times and had subcontracted works to and from the Defendant’s workshop since 1997.  In 1997, he came to know the Plaintiff who was then employed as a mechanic in Ka Yee Ma Workshop.  Later, Hung joined Kwok Ying Workshop as a partner where the Plaintiff also happened to be employed.  In June 2004, Hung decided to terminate his partnership in Kwok Ying Workshop and suggested to form a partnership with the Plaintiff. 

6.  Hung subcontracted an item of works from the Defendant.  On the morning of 2 July 2004, the Defendant picked up Hung and the Plaintiff from Kwok Ying Workshop in his vehicle and took them to the Defendant’s workshop to work on the subcontract.  There was no discussion between the Plaintiff and the Defendant as regards the terms of the subcontract or the Plaintiff’s employment.  The Plaintiff and Hung completed that item of works and thereafter undertook various items of works separately or jointly.  After between one to three months, the Plaintiff declined Hung’s suggestion to form a partnership.  Then, Hung subcontracted works from other workshops and occasionally from the Defendant’s while the Plaintiff continued working principally in the Defendant’s workshop until the accident occurred on 29 January 2005.  Between 2 July 2004 and 29 January 2005, the Plaintiff had undertaken works for Hung on three separate occasions outside the Defendant’s workshop.

Credibility of witnesses

7.  Hung was called as a witness by the Defendant.  He was a common friend of the Plaintiff and the Defendant.  He probably knew the Defendant before he came to know the Plaintiff.  But, he probably had a closer tie to the Plaintiff than to the Defendant as he had worked with the Plaintiff for some time and proposed to form a partnership with the Plaintiff and to provide the Plaintiff’s share of the capital.  On the other hand, he would be under some pressure to side with the Defendant because of their continued business relationship.  I bear those considerations in mind.  On an objective view, most of his evidence is not disputed by the Plaintiff and is to some extent inconsistent with the Defendant’s.  On the totality of the evidence, I am satisfied that he was telling the truth.

8.  The Plaintiff received education up to Form 3.  Then he joined a one-year apprenticeship training scheme of the Vocational Training Council.  He is a simple and unsophisticated person.  He did not impress me as particularly intelligent.  He did not even have the confidence to confirm that his age as stated in his witness statement was incorrect.  He was cross-examined on his evidence given before the magistrate during the criminal proceedings against the Defendant for breaches of the Factories and Industrial Undertakings Regulations.  The magistrate disbelieved his evidence that he was an employee of the Defendant and dismissed all the summonses against the Defendant.  Mr Yeung, counsel for the Defendant, criticised the Plaintiff as being evasive and equivocal.  However, a careful reading of the transcript of the proceedings shows that he was quite consistent particularly on how the accident occurred and on his work outside the Defendant’s engagement.  As my analysis of the evidence shows, save for his assertion that he commenced his relationship with the Defendant as a casual worker, I consider his evidence credible.

9.  The Defendant is a more sophisticated and outspoken person.  He alleged that he engaged the Plaintiff as a subcontractor and remunerated the Plaintiff on a lump sum basis for works at an agreed contract fee or at a daily rate if the works would take a long or indeterminate time to complete.  However, except for the receipt for the Plaintiff’s remuneration for the month of July 2004, the authenticity of which is in doubt, all the receipts prepared by the Defendant showed that the Plaintiff was remunerated according to the number of days and overtime worked and not on a lump sum basis.  When cross-examined on this issue by counsel and particularly on why overtime had to be paid in a lump sum contract or contract at daily rate, he lost his temper like a cornered witness who had run out of explanation.  As for the receipt for the month of July 2004, it contained words which were not written there when the Plaintiff signed on the receipt.  Those words were obviously written by the Defendant to booster his case that the Plaintiff was his subcontractor.  The Defendant was concocting evidence and is not to be believed.

The nature of the relationship between the Plaintiff and the Defendant 

10.  The Plaintiff’s case is that he commenced his relationship with the Defendant as a casual worker.  He said that towards the end of June 2004, Hung, who was then his employer in Kwok Ying Workshop, enquired if he was interested to work as a casual worker with the Defendant when Kwok Ying Workshop closed down and he agreed.  He did not know the Defendant before and did not discuss the terms of his employment with either Hung or the Defendant.  On 2 July 2004, he was taken to the Defendant’s workshop with Hung and they commenced work.  The Defendant told him that his working hours were from 8:30 am to 6:00 pm.  Neither he nor the Defendant discussed about the terms of his employment.  When the Defendant paid him wages for the month of July on 5 August 2004, the Defendant told him that his wages was $500 per day with overtime pay at the rate of $60 per hour and asked if that was acceptable to him.  He agreed.  He was paid his wages in cash and he had to sign a receipt.  In like manner, he was paid his wages for the months of August 2004 until December 2004.  At some stage after 2 July 2004, Hung suggested to form a partnership with him to subcontract works, but he declined the offer within about two weeks.  His evidence before the magistrate in the criminal proceedings was equivocal.  At one stage he said the discussion about forming partnership was raised in June 2004 but at another stage he said it was after July 2004.  He explained that he was confused when he was appearing before the magistrate. 

11.  According to the Defendant, he did not employ any employee due to the fluctuating workload but he engaged self-employed mechanics as his subcontractors.  He picked up his subcontractors every morning and set them down in the various places of work where their services were required or in his workshop.  Starting from 2 July 2004, he subcontracted various items of works jointly to Hung and the Plaintiff continuously one after another.  The works were subcontracted on a lump sum basis or at a daily rate basis.  The daily rate applied where the works were difficult or were likely to take a long or indeterminate time to complete.  After the first subcontract was finished, he subcontracted further works to them jointly.  As the Plaintiff’s and Hung’s partnership was yet to be formed, the Defendant split the contract fees payable to the Plaintiff and Hung equally.  Later, as the partnership did not materialize, he engaged Hung and the Plaintiff separately and paid them separately.

12.  According to Hung, towards the end of June 2004, he discussed with the Plaintiff about forming a partnership to subcontract works and they commenced to work on a subcontract with the Defendant on 2 July 2004.  Subsequently, the partnership did not materialise despite his offer to provide the Plaintiff’s share of the capital for the partnership.  Hung could not recall exactly when the partnership agreement fell through, but said that at the latest it was three months after their first subcontract with the Defendant. 

13.  A curious feature in this case is that the engagement relationship, to use a neutral term, between the Plaintiff and the Defendant commenced without any negotiation between them about the terms of their engagement.  Yet, the Plaintiff worked for slightly over a month without asking about his terms of employment in particular, his wage rate and overtime rate.  In the light of these evidence and in particular the total silence about the Plaintiff’s term of engagement, I have no difficulties in accepting the Defendant’s and Hung’s evidence that Hung and the Plaintiff jointly commenced their relationship with the Defendant as the Defendant’s subcontractors.  That explains why the terms of their engagement which were discussed only between Hung and the Defendant were acquiesced by the Plaintiff without any question as to his own terms of engagement.  That relationship lasted for two weeks according to the Plaintiff or at most three months according to Hung, when the Plaintiff unequivocally declined the offer to form a partnership with Hung.  The question then is what was the nature of the relationship between the Plaintiff and the Defendant when he and Hung no longer subcontracted works from the Defendant as one entity.  It appears that in the criminal proceedings the magistrate unfortunately concluded that the Plaintiff was not the Defendant’s employee at the time of the accident without investigating the true nature of their contractual relationship after the undisputed evidence that the partnership between the Plaintiff and Hung fell through.

14.  There is no dispute that both Hung and the Plaintiff continued to be engaged by the Defendant, though Hung’s engagement was sporadic while the Plaintiff’s was regular.  According to Hung, he continued his engagement as a subcontractor.  According to the Plaintiff, he continued his engagement as a casual worker.  However, a striking difference between Hung’s and the Plaintiff’s term of engagement was that Hung was not paid any overtime though he might have to work overtime if the circumstances required, but the Plaintiff was paid overtime at the rate of $60 an hour.

15.  The Defendant claimed that he paid the Plaintiff as a subcontractor at a lump sum contract fee or a daily rate depending on the nature of the works.  The Plaintiff claimed that he was remunerated as a casual worker at a daily rate with additional payment for overtime work.  The Defendant relied on the receipt for the month of July 2004 signed by the Plaintiff in which the payment was stated to be for “26天工程費” (i.e. 26 days contract fee) as evidence that his relationship with the Plaintiff was subcontractual and not employment.  He also relied on the receipt for the month of December 2004 in which the payment was stated to be for “04年12月份工程費26天7小時” (i.e. contract fee for December 2004 of 26 days and 7 hours).

16.  There is no dispute that the receipts were prepared by the Defendant in sets of two copies.  The Defendant kept one copy and the Plaintiff kept the other.  The Defendant produced six copies of receipt for the months from July 2004 to December 2004.  The Plaintiff produced five.  He was unable to produce the one for the month of December 2004.  Except for the Defendant’s copy of receipt for July 2004, the contents of the receipts produced by the Plaintiff and the Defendant were similar, though the receipts in each set were written separately.  The amounts of payment acknowledged were identical.  The purpose of the payment was stated to be for the number of days and overtime worked.  The only exceptions were the Defendant’s receipts for the month of July 2004 and December 2004 in which the payments were stated to be contract fees.  According to the Plaintiff, the amount he was paid and the purpose of the payments were all written down in his copies of receipt before he was given them, but the corresponding entries in the Defendant’s copies were blank when he signed them.  There was no challenge on that evidence.  I have no reason to doubt that the Defendant wrote those particulars on the copies of receipt kept and produced by the Plaintiff, as the four other receipts kept and produced by the Defendant contained similar particulars.  The only reasonable inference I can draw is that there was an agreement between the Plaintiff and the Defendant that the Plaintiff would be paid at a daily rate with overtime.  The further inference I can draw is that the Defendant’s copy for the month of July 2004 was indeed blank when the Plaintiff signed on it and the Defendant dishonestly wrote down “26 days contract fee” to boost his case that the Plaintiff was his subcontractor.  This finding impacts adversely on the Defendant’s credibility.  Accordingly, I find that the Plaintiff was remunerated at a daily rate plus overtime, whatever the nature of his contractual relationship was with the Defendant.  The contract between the parties could be a contract of employment or a contract for supply of labour, though a contract for supply of labour from a particular individual only is very rare.  The term of this contract as regards remuneration is strongly suggestive of its nature as a contract of employment than a contract for services.

17.  According to the Plaintiff, he had to observe regular working hours which was from 8:30 am to 6:00 pm.  According to the Defendant, his subcontractors were only required to report work at 8:00 am and he was unconcerned as to when they would go off work, which was a matter solely for his subcontractors.  He was only concerned to pick up his subcontractors in the morning and despatch them to various sites where their services were required.  Such evidence does not sit well with his case that the Plaintiff was solely paid at a daily rate with overtime for the entire seven months of engagement.  He was unable to give a logical explanation why an item of works was subcontracted for a number of days and yet he had to pay overtime in addition to the contracted number of days.  He was utterly confused when cross-examined on why he paid at a daily rate without requiring his subcontractor to work the required number of hours and why he subcontracted an item of works for a number of days and yet had to pay additional overtime.  He burst into temper like a cornered witness who had run out of explanation and he simply made a blunt assertion that the Plaintiff was his subcontractor.  I reject his evidence.  I find that the Plaintiff was engaged to work at fixed hours at a daily rate of $500 plus overtime at the rate of $60 per hour.

18.  Mr Yeung submits that the system of remuneration under the subcontract was fair and was all about controlling risks which is no different from the concept of laytime and demurrage in the law of shipping.  He referred me to Schofield, Laytime and Demurrage, 3^rd edition, pages 1 to 6.  Laytime is the period of time agreed between the parties during which the shipowner will make and keep the vessel available for loading or discharging without payment additional to the freight.  Voyage charters are divided into two principal types depending on the laytime provisions they contain.  There are those with customary laytime and those with fixed laytime.  Mr Yeung compares those respectively as lump sum contract and daily rate contract.  If loading or unloading is not completed within the laytime allowed, the shipowner is entitled to be compensated for the extra time taken.  The compensation may either take the form of liquidated damages, demurrage, or unliquidated damages.  Mr Yeung compares the demurrage with the overtime pay under the subcontract.  He argues that as most of the Defendant’s works were carried out in ships, these aspects of shipping law should be applicable to the subcontract in like manner.

19.  With all respect to his industry in research in shipping law, I fail to see how the risk control in charters have any bearing on the risk control in the contract between the Plaintiff and the Defendant.  On the evidence, the Defendant bore all the risks of loss and prospect of profit.  The Plaintiff did not have any risk of loss or prospect of profit beyond his daily remuneration and overtime pay.  He did not have any responsibility for management and did not benefit from his good management.  He would not receive any benefit for finishing his task earlier, nor would he suffer any loss if he was unable to finish his assignment in time.  He would be paid overtime at the expense of the Defendant if an item of works took him longer to finish.  By way of contrast, Hung who was indisputably engaged as a subcontractor at a daily rate without overtime or at a lump sum contract, had the benefit of good management if he could finish his work early and could perform other assignments from the Defendant or others or bore the risk of having to incur more of his own time and at his own cost if he could not.

20.  The Defendant said that the Plaintiff was a qualified mechanic and worked on his own without supervision and control.  For skilled workers and technician, the lack of supervision and control has little bearing on the nature of the contractual relationship between him and his employer.  However, on the evidence, it shows that the Defendant exercised close supervision and control over the Plaintiff’s work.  In particular, on the day of the accident, the Defendant was working with the Plaintiff.  He directed the Plaintiff to perform painting work before testing the hydraulic device.  He gave directions to the Plaintiff as to his role in the testing.  He approved the size of the container and the length of the hose to be used.  Those were the equipments he provided to the Plaintiff.  The Defendant retained the more important function of monitoring the pressure gauge and switching on the pump to himself.  I find that the Defendant exercised close supervision and control on the Plaintiff.

21.  Mr Yeung argues that there were occasions when the Plaintiff subcontracted works from Hung instead of working for the Defendant which supports the Defendant’s case that the Plaintiff was just one of his subcontractors.  The Plaintiff admitted there were three such occasions when he worked otherwise than with the Defendant.  On one occasion, he assisted someone in re-shaping the blade of a fan after he had finished work for the Defendant.  It was a simple task and he did not charge anything for his services.  On another occasion, he worked with Hung’s son on a project of Hung in the morning, after which he returned to work for the Defendant.  He also worked for Hung on another occasion.  However, throughout the six months’ period, he worked 26 days every month for the Defendant.  I find that the Plaintiff’s engagement on outside work was insignificant and has no bearing on the nature of his contractual relationship with the Defendant.

22.  The followings are common ground.  The Defendant provided all tools which were required by the Plaintiff to carry out his work in the Defendant’s workshop.  The Defendant assigned work to the Plaintiff and directed him as to where he was to perform his work.  The Defendant provided him with transport to the workplace outside the Defendant’s workshop and provided him with lunch.

23.  Remuneration for the work done in the month of July, August, September, October, November and December 2004 were paid on 5 August 2004, 13 September 2004, 11 October 2004, 11 November 2004, 9 December 2004 and 14 January 2005 respectively.  Mr Yeung submits that the payments were made well into the following month, unlike wages which would normally be paid at the beginning of each month.  Under sections 22 and 23 of the Employment Ordinance, wages are due on the expiry of the wage period, which is usually the end of the calendar month, and shall be paid not later than seven days thereafter.  Mr Yeung submits that the time of payment of the remuneration is inconsistent with the provision of the Employment Ordinance.  I think this has little bearing on the nature of the payment as wages or as contract fee.  If the payments were for wages, the fact that the payments were late and constituted breaches of provisions of the Employment Ordinance did not alter the nature of the payments. 

24.  Mr Yeung submits that it is unusual for employees to issue receipts to their employers for works done and it is more common for subcontractors to issue receipts for contract fee to those who engage them.  I am not prepared to accept that submission on its face value.  Everything must be considered in its proper context.  The receipts were prepared by the Defendant.  They were not prepared and issued by the Plaintiff as if he was a subcontractor billing his own clients.  The receipts could well be interpreted as an employee’s acknowledgement of his wages, which are records an employer is obliged to keep under the Employment Ordinance.

25.  Mr Yeung submits that the Plaintiff did not ask the Defendant for contribution to the Mandatory Provident Fund (“MPF”) or for wages during his certified sick leave period.  These are consistent with the Plaintiff considering himself as an independent subcontractor than as an employee of the Defendant.  The Plaintiff explained that he was unaware of his rights.  Incredible as it may be, probably he considered himself as a self-employed person not eligible to those employment benefits.  But what he considered himself to be is irrelevant.  The question is what the law says is the true nature of his engagement with the Defendant.

26.  The Defendant had control over the Plaintiff’s work.  He gave directions on how the Plaintiff performed his work.  He provided the Plaintiff with tools and equipments.  He had full responsibility for the management of his workshop in which the Plaintiff provided his services.  He had the prospect of profiting from good management and the risk of financial loss.  On the other hand, the Plaintiff offered nothing but his labour.  He had to present himself for work at fixed working hours.  He was entitled to overtime if required to work beyond those hours.  He had no business risk and no financial profit for good management beyond his remuneration.  Looking at all the features of the contractual relationship between the Plaintiff and the Defendant against the background of these indicia of employment, I find, as a matter of overall impression, that the relationship was one of employment. 

27.  Furthermore, the Defendant filed a Form 2 with the Labour Department indicating that he was the employer of the Plaintiff.  The Defendant explained that he had received repeated demands from the Labour Department to file the form.  Eventually, he received a warning that unless he filed the form he would be prosecuted.  He said it was under the threat of prosecution and in the absence of legal advice that he filed the form.  He only stamped the form with his company chop and did not sign it as he did not consider himself as the Plaintiff’s employer.  However, under cross-examination, he admitted that he knew he had no obligation to file the form if he was not the Plaintiff’s employer.  In the circumstances, whether he had legal advice is immaterial as he well knew that he did not have to file the form if he was not the Plaintiff’s employer.  Likewise, he could have filed the form denying to be the Plaintiff’s employer and stating that the Plaintiff was only his subcontractor.  However, with full knowledge of his rights, he filed the Form 2 stating that he was the employer and giving details of the Plaintiff’s employment.  I must give full weight to his admission.

The accident

28.  According to the evidence of the Plaintiff, which I accept, he and the Defendant repaired the hydraulic device and tested it together.  They made all necessary hose connections, including connecting the device to a pump via a hose to the valve of the device and affixing a hose for discharging hydraulic fluid.  Then the Defendant assigned the Plaintiff with the duty of holding the discharge hose and directing it at a collecting container.  The Defendant positioned himself at the switch of the pump and monitored the pressure gauge.  According to his own evidence in the criminal proceedings, the Defendant had used a longer discharge hose and a bigger collecting container when testing similar devices before.  He knew that using a longer hose and a larger container would be safer.  On this occasion, he saw the Plaintiff using a shorter discharge hose and a smaller container.  He permitted the Plaintiff to do so because he thought the quantity of hydraulic fluid to be discharged was less, just about 18 litres.  The Defendant knew the discharge hose would fling.  He told the Plaintiff to hold fast to the hose and be careful.  He knew the pressure to be applied to the hydraulic fluid in the device would be 200 pounds which was what he was watching the gauge for at the time.  Then he switched on the pump and the discharge hose flung hitting the Plaintiff in the right eye.

29.  Mr Yeung submits that the Plaintiff was the subcontractor for the servicing the hydraulic device, had the conduct of the testing procedure and that the Defendant was only assisting the Plaintiff in the testing by switching on the pump.  I reject that submission for two reasons.  Firstly, on my finding of fact, the Plaintiff was not the Defendant’s subcontractor.  Secondly, even if he were, the evidence shows clearly that it was the Defendant who had the conduct of the testing procedure.  The Defendant had control of the testing procedure and decided what role the Plaintiff took.  He had the important function of monitoring the pressure gauge.  His function was not just to switch on the pump at the instruction of the Plaintiff.  On his own evidence, the Defendant briefed the Plaintiff about safety and about precautions.  I find that the Defendant had the conduct of the testing procedure and the Plaintiff was only taking instructions from the Defendant, be him an employee or a subcontractor.

DUTY OF CARE

Duty of care at common law

30.  Quite apart from the duty of care imposed by the contract of employment and by statute, i.e. even assuming that the Plaintiff were the Defendant’s subcontractor, the circumstances were such that the Defendant must owe a duty of care to the Plaintiff under the neighbourhood principle at common law.  Such duty can be readily inferred from the classic statement of Brett MR in Heaven v Pender (1883) 11 QBD 503 at 509:

“… whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

An improved and more often quoted dictum is that of Lord Atkin’s in Donoghue v Stevenson [1932] AC 562, HL at 580, which is the neighbourhood principle I mentioned above:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour?  The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

31.  The Defendant is a mechanic with more than thirty years of experience.  He was far more experienced than the Plaintiff.  He knew he was going to apply pressure of approximately 200 pounds to the hydraulic device.  He knew hydraulic fluid would be discharged from the hose and the hose would fling.  It was under those circumstances that he instructed the Plaintiff to hold the hose.  The Plaintiff, whether he was an employee of the Defendant or just a subcontractor responsible for repairing the device, must be the Defendant’s neighbour who was so closely and directly affected by his act that he ought reasonably to have him in contemplation as being so affected when he was switching on the pump exerting pressure to the hydraulic device.  The Defendant must be under a duty of care to see to it that in holding the hose the Plaintiff was safe in all the circumstances.  He was not instructing the Plaintiff to hold a garden hose but a hose to which tremendous pressure was going to be applied.  The risk that the hose would fling out of the hold of the hand was very real.  The Defendant owed the Plaintiff the duty of making sure that the hose would not fling by having it properly secured.  Mere warning was not enough. 

Duty of care under contract and statute

32.  The Plaintiff pleads various duties of care in negligence.  I think I only need to refer to one, i.e. the duty to provide safe plants, equipments and a safe system of work.  This duty is similar to the common law duty I mentioned above.  The Plaintiff also pleaded various statutory duties under the Occupational Safety and Health Regulation.  No submission has been made in respect of breaches of those statutory duties.  I do not intend to rely on those alleged breaches.

Breach of duty of care

33.  Having found that the Defendant was under a duty of care to make sure that the hose would not fling and that in holding the hose the Plaintiff was safe in all the circumstances at common law and under a duty of care in contract to provide a safe system of work, the next question is whether there was a breach of such duty.  There were lots of simple and effective measures which the Defendant could have taken to discharge that duty of care.  In answer to my question, the Defendant agreed with me that the hose could be easily secured by a hose bracket and two screws, which was by no means an onerous operation.  He could have insisted on the Plaintiff using a longer hose or a bigger container.  There is nothing to suggest that such equipments were not available in the workshop as they had been used before.  He could have used a container with a receptacle to which the metal coupling on the hose could be screwed.  He could have increased the pressure in the pump gradually, if the pump is capable of such a function, to reduce the fling.  None of these measures was taken.  The Defendant was clearly in breach of the duty of care.

Causation

34.  Mr Yeung referred to the case of Bux v Slough Metals Ltd and submits that the Defendant has a complete defence in accordance with that authority.  He quoted the following dictum of Stamp LJ at 1371H:

“The burden of proving that the employers’ breach of duty caused his accident is, of course, on the plaintiff, whence it follows that he must prove that he would have worn goggles and so prevented the accident if the employers had done their duty.”

Mr Yeung submits that the Plaintiff never wore any goggles in his whole career life prior to the accident and that the Plaintiff considered safety helmet and reflective vests were the only safety equipments he required.  Mr Yeung also referred to the Plaintiff’s evidence that he would not have worn goggles even if so provided.  Hence, Mr Yeung submits that the Plaintiff has failed to discharge the burden of proving that the Defendant’s breach of duty caused his accident.

35.  With respect to Mr Yeung, the dictum in Bux v Slough Metals Ltd was quoted out of context.  In that case, the plaintiff was a die-caster employed in the defendants’ foundry.  The defendants provided goggles for use by their employees under regulation 13(1)(c) of the Non-ferrous Metals (Melting and Founding) Regulations 1962.  The plaintiff told his supervisor that he stopped using goggles because the goggles misted up and he found them useless.  The plaintiff did not use the goggles.  An accident occurred as a result of which the plaintiff lost the sight of one eye.  He claimed damages for personal injuries alleging the defendants’ breach of regulation 13(1)(c) of the Non-ferrous Metals (Melting and Founding) Regulations 1962 and of common law duty of care by failure to instruct him to wear goggles and to ensure that they were worn.  The judge found that the defendants had been negligent.  The duty of care referred to in Bux v Slough Metals Ltd was the employers’ common law duty to instruct their employees to wear goggles and to ensure that goggles were worn.  Thus, when Stamp LJ held that the plaintiff must prove that he would have worn goggles, it was in the context that the employer had provided goggles under circumstances when the law required the employers to provide goggles and to ensure that they were worn but had failed in their duty to instruct the employees to wear them and to ensure that they were worn.  That dictum was not intended to be an escape for negligent employers who did not provide goggles to avoid liability by saying that the employees would not have worn them anyway.

36.  In the present case, the Defendant did not provide goggles, not to mention that he did not instruct the Plaintiff to wear them or to ensure that they were worn.  Whether goggles are necessary protective gear depends on the circumstances of the case.  For employees working in foundries or working with abrasive machines or pneumatic machines which produce flying particles, injury to the eye is foreseeable.  Under such circumstances, an employer would be in breach of his duty of care, and probably statutory duty as well, for failing to provide goggles and to ensure that they are worn.  The flinging of the hose is not a risk which would make it necessary for goggles to be worn.  If it were, an employer would have to provide helmet and protective armour to prevent injury to other parts of the body.  Unlike flying particles which could not be controlled or eliminated, the flinging of the hose could be easily prevented.  What was necessary to ensure the employee to be reasonably safe in the circumstances was to ensure a safe system of work, which really amounted to securing the hose to the container.  I do not think the Plaintiff’s answer that he would not have worn goggles would defeat his claim in law or in fact.

Contributory negligence

37.  Mr Yeung submits that the Plaintiff being an experienced and qualified mechanic with previous experience in handling hydraulic pumps should have taken adequate measures to ensure his own safety.  He said that the Plaintiff selected a short hose and a small container and adopted a “couldn’t care less” attitude.  He argued that for the above reasons and because the Plaintiff would not have worn goggles even if provided, his damages should be reduced to two thirds.  The Plaintiff was working at the instruction of the Defendant who was his employer and supervisor and who was much more experienced than the Plaintiff.  The Plaintiff was entitled to rely on the Defendant in providing him with a safe system of work and to advise him that it was not safe to use a short hose and small container.  In my view, it was the Defendant who adopted a “couldn’t care less” attitude in wanton disregard of the safety of his employee or person whom he put at risk.  No fault could be attributed to the Plaintiff’s intention not to wear goggles when they were not even provided by the Defendant who did not instruct the Plaintiff to wear them or ensure that they were worn.  I dismiss Mr Yeung’s argument of contributory negligence.

QUANTUM

38.  For the above reasons, I find the Defendant was negligent and is liable to the Plaintiff for damages for personal injuries.

39.  The Plaintiff is now nearly 36 years of age.  He was 32 years and 4 months old at the time of the accident.  He suffered the lost of the use of his right eye.  He was hospitalised for ten days.  He is still suffering from residual headache.  He had injuries to some of his teeth and has difficulties in swallowing large pieces of food.  He was assessed to have suffered permanent partial incapacity of 52.5%.

Pain suffering and loss of amenities (“PSLA”) 

40.  Mr Wong, counsel for the Plaintiff, referred me to Chan Shui Ying v HYFCO Travel Agency Ltd [2008] HKLJ 288 and Hang Huu Duc v Hanbo Engineering Limited [2005] HKLJ 762 and suggests a sum of $600,000 for PSLA appropriate.  In the first case, the plaintiff had a traffic injury in Hunan in China.  She suffered injuries to her head and left eye.  She was repatriated to Hong Kong for treatment.  She was hospitalised for over a month. She sustained severe lacerations of occipital scalp, left eye orbit fracture, nasal bone fracture and subarachnoid haemorrhage.  She suffered aches and pains in multiple parts of her body and numbness and hyperesthesia of the left cheek.  She was awarded $800,000 for PSLA.  Her injuries were more extensive than that of the Plaintiff.  In the second case, the plaintiff lost his left eye which was hit by a rebounding nail.  He suffered from photophobia, tearing, pain and the usual loss of depth perception and fine visual discrimination.  He was awarded $550,000 for PSLA.

41.  Mr Yeung referred me to the case of 陳自豪 與 關文偉，傷亡訴訟案件2001年第356號.  In that case, the plaintiff was born in 1972 and educated up to Form 3.  He was a cook earning $12,000 per month.  His personal circumstances were similar to the Plaintiff’s.  He lost his left eye and was assessed to have suffered permanent incapacity of 25.5% and loss of earning capacity of 51%.  He was awarded $450,000.  Mr Yeung suggests that the plaintiff in that case had to give up his sporting activities as a result of the injury while there is nothing to suggest that the Plaintiff suffered such loss of amenity.  Hence, Mr Yeung suggests a figure of $400,000 for PSLA.

42.  I think the injuries suffered by the Plaintiff is similar to but slightly more serious than those suffered by the plaintiff in陳自豪in that he suffered injuries to his teeth as a result of which he could not swallow large pieces of food.  His injuries are less serious than those suffered by the plaintiff in Chan Shui Ying v HYFCO Travel Agency Ltd.  I think Hang Huu Duc v Hanbo Engineering Limited is a suitable comparable.  Having regard to the nature of the injuries and the time the awards were made, I assessed the Plaintiff’s PSLA at $600,000.

 Pre-Trial loss of earnings and MPF

43.  Prior to the accident, the Plaintiff was earning on the average $13,405 per month.  He was given sick leave until 14 July 2005.  He resumed work in January 2006 as a casual transportation worker for about $4,000 a month.  His earning was increased to $6,000 from January 2008.  Allowing him a month to look for and obtain employment, he should have resumed work on 16 August 2005.

44.  The Plaintiff’s pre-trial loss of earnings from the date of the accident on 29 January 2005 to 15 August 2005 was $87,132.50 [i.e. $13,405 x 6.5].  His partial loss of earnings from 16 August 2005 to 31 December 2007 was $268,042.50 [i.e. ($13,405 - $4,000) x 28.5].  His partial loss of earnings from 1 January 2008 until trial in May 2008 was $37,025 [i.e. ($13,405 - $6,000) x 5].  His total pre-trial loss of earnings was $392,200 [i.e. $87,132.50 + $268,042.50 + $37,025].

45.  His pre-trial loss of MPF was $19,610 [i.e. $392,200 x 5%].

46.  His pre-trial loss of earnings and MPF was $411,810 [i.e. $392,200 + $19,610].

Loss of future earnings and MPF

47.  The Plaintiff is nearly 36 now.  An appropriate multiplier should be 14: see Kot Yik Kam v Kwok Kam Hung [2005] HKLJ 758 and Phoon Ka Wai v Wong Ka Chung [2005] HKLJ 760.

48.  Adopting a multiplier of 14, the Plaintiff future loss of earning is $1,244,040 [i.e. ($13,405 - $6,000) x 12 x 14]. 

49.  His loss of future MPF is $62,202 [i.e. $1,244,040 x 5%]. 

50.  His total future loss of earnings and MPF is $1,306,242 [i.e. $1,244,040 + $62,202].

Loss of earning capacity

51.  Mr Wong referred me to the case of Lai Wah Wai v Castco Testing Centre Ltd [1996] 2 HKC 44, in which Cheung J, as he then was, awarded $200,000 for loss of earning capacity for a construction worker suffering a prolapsed disc.  Mr Yeung submits that there is no evidence adduced by the Plaintiff of such loss and no award should be made.  I respectfully disagree.  The Plaintiff’s loss could be readily presumed as arising as a matter of course from the injuries.  The Plaintiff lost one eye.  He must necessarily suffer photophobia and loss in depth perception which must necessarily result from loss of the sight of one eye.  That would affect his work and his acceptability by employers who know of his disability.  He may not suffer the sort of disadvantage as would the plaintiff in Lai Wah Wai v Castco Testing Centre Ltd.  He might not need transport with seats available which might affect his punctuality at work or ability to work in China.  Some disability could readily be presumed.  I assess his loss of earning capacity at $100,000.

Other items of special damages

52.  The Plaintiff claims special damages in the total sum of $27,230.  This is not disputed by the Defendant.  I make this award accordingly.

Interest

53.  I award interest on the general damages at 2% per annum from the date of writ (i.e. 10 April 2007) to the date of trial and interest on the pre-trial loss of earnings and MPF and other items of special damages at half of the judgment rate (i.e. 9.398% per annum) from the date of accident (i.e. 29 January 2005) to the date of trial.  Accordingly, interest on general damages is $13,500 [i.e. $600,000 x (13.5 ¸ 12) x 2%]; and interest on special damages is $68,768 [i.e. ($411,810 + $27,230) x (40 ¸ 12) x (9.398% ¸ 2)], totalling $82,268.

CONCLUSION

54.  I enter judgment in favour of the Plaintiff and award him damages in the sum of $2,527,550 which is calculated as follows:

PSLA	$ 600,000.00
Pre-trial loss of earnings and MPF	$ 411,810.00
Loss of future earnings and MPF	$1,306,242.00
Loss of earning capacity	$ 100,000.00
Other items of special damages	$ 27,230.00
Interest	$ 82,268.00
Total	$2,527,550.00

The award shall be with interest at judgment rate from the date of judgment until payment.

55.  I also make a costs order nisi that the Defendant shall pay the Plaintiff’s costs of the action and the Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.