CHEUNG HEI KWONG v. KWONG KEY CONSTRUCTION & ENGINEERING LTD

HCPI 1260/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1260 OF 1999

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J U D G M E N T

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The plaintiff's claim

1. The plaintiff's claim is for damages for injuries sustained by him on 25 November 1996 when he was working at a site known as Land Lot no.1779 situated at Cheung Chau Island. The plaintiff was engaged in conveying bags of plaster with each carrying an approximate weight of 50 kilogrammes on the ground level at the site. He tripped over a piece of loose jute rope which was lying on the surface of the said ground and he lost his balance and fell, sustaining the following injuries :

(a) fracture of left ankle; and

(b) abrasions over abdomen and chest wall.

2. The defendant admitted that the plaintiff met with the accident and sustained the injuries at the time and place indicated but the defendant averred that the accident was caused solely or contributed to by the negligence of the plaintiff.

3. The plaintiff's claim was that he was employed by the defendant as a plaster remover or alternatively he was employed by one Ngan Yiu Ming who was a sub-contractor at the construction site. His claim against the defendant was based mainly on a breach of the Construction Sites (Safety) Regulations, Cap.59 ("the Regulations") and in particular Regulation 38A which provides that the contractor responsible for any construction site shall ensure that every place of work on the site is, so far as is reasonably practicable, made and kept safe for any person working there. The plaintiff also alleges a breach of Regulation 52 which provides that the contractor responsible for a construction site shall ensure that all places on the site used as passageways are kept clear of any loose materials which are not required for immediate use.

The plaintiff's evidence

4. The plaintiff gave evidence that on the day in question, he was working at the site in question. The project was to build 26 villas, each of which was three to four storeys high. As there were no roads on Cheung Chau Island, the cement had to be shipped to the Island. The bags of cement were taken off the ship by a crane and then transported by a dilapidated lorry with an open compartment at the back to a spot which was some distance from the ship and which was about 50 feet from the site where the villas were being built. At that spot, the bags of cement were taken off the lorry by a crane which was hooked onto the eight leather straps, each 4 inches wide, of the sack which contained 50 bags of cement. Each bag weighed 50 kilogrammes. When the sack was removed from the lorry, it was placed on the roadside. Each sack measured 2 by 2 metres while each bag measured 40 by 60 centimetres. Six or seven sacks were put together. Each strap of the sack was about 2 metres in length and the 50 bags of each sack were stacked up, one on top of another, to a height of 1 metre.

5. The plaintiff had been working since November 1985 until the date of the accident as a plaster remover at the rate of $700 per day. He said he worked 30 days in a month. He had been working at that particular site since April 1996 and he was familiar with the site at the time of the accident. He was aware that the loose straps were lying around and he said that everybody was extremely careful because they were aware of the danger. He agreed that before he picked up a bag, if there was a strap in his way, he would move the strap away. On the day in question, he had to bend down a bit to pick up a bag. This particular bag was inside the sack but was at ground level. He lifted up the bag and put it on his shoulder. When he bent down, he could see loose straps on the ground. After he placed the bag on his shoulder, his right foot then stretched out and that foot was on the ground when his left foot was about to move. It then tripped on a strap which was on the ground and in contact with the ground. He said the earth was very loose at that time. There was a down slope a bit further from the spot where he was. He then lost his footing and fell and the cement bag fell and landed on his abdomen. He did not agree with the suggestion that he fell because he lost his footing and slipped and that his fall had nothing to do with the strap.

6. When the plaintiff was cross-examined as to how the accident happened, he said that while his right foot was off the ground and when his left foot was stepping onto straps lying on the ground, that caused him to lose his balance. He confirmed that his left foot stepped onto straps and the canvass. He confirmed that the sole of his left shoe was on top of the strap. He said his left foot came into contact with the strap when he was about to lift his left foot and the strap slipped into his ankle. He said that they had a break for afternoon tea and at 3:30 p.m. they resumed their work. When the accident happened at 4:15 p.m., he had made about seven to eight trips carrying these bags of cement.

Finding on liability

7. It was properly agreed by the defence that the site in question was a "construction site" within the meaning of the Construction Sites (Safety) Regulations, Cap.59. Having considered the evidence of the plaintiff, I am satisfied on a balance of probabilities that on the day in question, the plaintiff was injured as a result of an accident at the site and the accident was caused by the plaintiff's loss of balance due to his left foot coming into contact with a loose leather strap lying on the ground. That leather strap was one of numerous straps lying about on the ground in the vicinity where the plaintiff was working. Because of the presence of the straps on the ground, I find that the defendant, as the main contractor responsible for that site, failed to ensure that the place of work was, so far as was reasonably practicable, made and kept safe for any person working there. This was a breach of Regulation 38A of the Regulations mentioned above. I do not find that it was because of the plaintiff's carelessness or total lack of attention which caused him to lose his balance and have a fall. Even if there had been a slight departure from paying full attention to what he was doing, I find that that did not absolve the defendant from liability as the contractor responsible for the site. Lord Oaksey said in General Cleaning Contractors Ltd v. Christmas (1953) AC 180 at 189 :

"It is ... well known to employers ... that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve."

I find that the defendant failed to have in place any measures which would have ensured that the ground was cleared of these leather straps which by themselves could have been a source of danger to the people working thereat.

Contributory negligence

8. Did the plaintiff's conduct in not pushing the straps aside before walking or not paying complete attention to what he was doing amount to contributory negligence? Sellers LJ in Quintas v. National Smelting Company (1961) 1 AER 630, at 636E said :

"It has often been held that there is a high responsibility on a defendant who fails to comply with his statutory duty which is absolute and has penal sanctions. A workman is not to be judged so severely."

In Flower v. Ebbw Vale Steel, Iron and Coal Co. Ltd [1936] 1 AC 206, Lawrence J said :

"The tribunal of fact has to take into account all the circumstances of work in a factory, and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence."

In Casewell v. Powell Duffryn Associated Collieries Ltd [1939] 3 AER 722, Lord Atkin at page 731 agreed with the statement of Lawrence J quoted above when he said :

"I am of opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of factory or mine."

In Ryan v. Manbre Sugars Ltd [1970] 114, Solicitors Journal 492, the Court of Appeal in England held that the fact that the plaintiff knew of the danger and of the need for caution did not prove that he had been guilty of contributory negligence and the fact that the plaintiff did not put his foot right over the step was inadvertence but not contributory negligence. In Hopwood v. Rolls Royce Ltd (1947) 176 LT 514, the Court of Appeal in England held that contributory negligence did not mean mere error of judgment or a degree of inattention which a workman in a factory may in the ordinary course of his work be expected to show in circumstances that are familiar to him. I, therefore, find that in the circumstances of this case, the plaintiff should not be held guilty of any contributory negligence.

The plaintiff's injuries

9. On the day of the accident, the plaintiff was examined by Doctor Karen Fan at the Queen Mary Hospital and her findings were : an inversion injury of left ankle; the left ankle was grossly swollen and tender; X-ray showed a fracture of distal fibula. In a report dated 22 June 1998, Dr Samson Chan of the Department of Orthopaedic Surgery, Queen Mary Hospital, wrote :

"He still has significant pain in his left ankle. One and a half years after the injury, an X-ray showed the fracture has healed. An MRI of his ankle and foot did not confirm any significant soft tissue injury. At present, he is unable to perform his construction site work."

10. The plaintiff was examined by Dr Arthur Chiang on 12 June 2000 and Dr Chiang noted the following complaints :

(1) There is left ankle swelling with increased activities, for example, after playing sports. He has to wear a soft ankle support to reduce the ankle swelling.

(2) The left ankle would start to feel tired after walking for about 10 minutes. He cannot walk for longer than half an hour.

(3) There is pain in his left sole when he starts to bear weight after getting up in the morning, and his left ankle feels stiff.

(4) Stiffness and weakness are noted in the left ankle on squatting.

(5) The left ankle feels symptomatic after walking for about two flights of stairs.

(6) He has more difficulty walking down slope than up slope.

(7) There is left ankle paraesthesia after sitting for 15 to 20 minutes.

(8) He can manage carrying weights of up to 30 to 40 pounds.

(9) There is frequent paraesthesia around the bilateral malleolar area. The pain and paraesthesia in the left ankle would wake him at night in his sleep.

(10) There is mild pain in his back and left thigh.

The physical examination revealed that he walked with a mild limp.

11. X-rays of the left ankle and lumbar spine taken on the day of the examination revealed good union of the fracture, and there was absence of post-traumatic arthritic changes or osteoporotic changes from disuse or reflex sympathetic dystrophy. The X-ray findings had suggested that the lateral malleolar fracture was unlikely to be a comminuted fracture. Dr Chiang was of the view that one of the possible causes for the prolonged period of pain and swelling in the plaintiff's case could be reflex sympathetic dystrophy which was not common but would be one of the considerations when there was a long period of persisting symptoms after a limb fracture or injury, which did not respond well to the prolonged drug and physiotherapy treatment, despite good healing in the fracture or the injury. The protracted course of the recovery from the injury in the plaintiff's situation and the type of symptoms described were suggestive of some degree of reflex sympathetic dystrophy. Dr Chiang found that the permanent impairment of the whole person for the accident related injuries (at the left ankle) was estimated at about 4%. Dr Chiang was of the view that physically, with respect to the left ankle condition, the plaintiff should be able to return to the pre-injury job but with some reduction in his work capacity.

12. The plaintiff was examined on 14 July 2000 by Dr Danny Tsoi who had been instructed by the defendant's solicitors. Dr Tsoi found that the plaintiff walked with a normal gait. He had no problem in changing posture. He was able to squat down and rise up. He was able to stand single legged but with poor balance. He was able to walk on tiptoes but with poor balance. Dr Tsoi was of the view that the pattern of pain that the plaintiff described was a form of sciatic nerve pain, and was most likely caused by a compression of the L5 nerve root at the level of the lumbar spine. This diagnosis was substantiated by the sluggish left ankle reflex, impaired touch and pain sensation over lateral side of the calf, weakened eversion of the left ankle as well as the radiological findings of L4-5 degeneration and narrowing of the disc space. Dr Tsoi thought that it was highly unlikely that the L5 nerve root compression was caused by the captioned accident and, judging from the radiological pattern of diffuse degenerative changes, the L5 nerve root compression was likely caused by the degenerative L4-5 disc as a result of the natural degeneration. Therefore, Dr Tsoi was of the view that in assessing the loss of earning capacity in relation to the accident alone, the disability caused by the back pain, left sciatica and weakened ankle eversion should not be considered. The fractured ankle alone would not preclude the plaintiff from resuming his pre-injury job as a plaster worker. His future employment would not be limited. The residual ache discomfort at most would account for a 2% loss of earning capacity. The unplaced fracture distal fibula treated by conservative means rarely required sick leave of more than six months. The sick leave of more than three years was definitely unjustified.

13. A surveillance video tape was taken of the plaintiff by a company employed by the defendant, and this video tape was shown to Dr Tsoi. In his report of 3 October 2000, Dr Tsoi commented as follows :

(1) Throughout the surveillance, the plaintiff was able to walk with normal gait on three different occasions.

(2) During the surveillance on 22 September 2000, the plaintiff was able to carry two apparently heavy objects and could walk downstairs without the slightest difficulty.

(3) The physical condition during the surveillance corresponded well to the physical findings during the assessment. The left ankle injury cast minimal hindrance to his activities. The assessment of permanent impairment and loss of earning capacity in his previous report was not altered.

14. These two reports by Dr Tsoi were shown to Dr Chiang. In his report dated 2 February 2002, Dr Chiang explained that the 4% assessed by him as compared with Dr Tsoi's assessment of 2% was due to the inclusion of additional residues arising from the reflex sympathetic dystrophy. Dr Chiang expressed the view that with the inclusion of the possibility of reflex sympathetic dystrophy which often improved with time, he suggested that the total sick leave period was about one and a half years. This last report by Dr Chiang was shown to Dr Tsoi who, in his report of 19 October 2002, accepted that if Reflex Sympathetic Dystrophy Syndrome ("RSDS") were taken into account then Dr Chiang's recommendation would be reasonable. However, Dr Tsoi disputed that RSDS was a contributing factor because he said when he examined the plaintiff on 14 July 2000, all signs suggestive of RSDS were not detected and the available medical documents never mentioned anything about RSDS. Dr Tsoi said that in most circumstances, a simple fracture fibula of the ankle receiving conservative treatment seldom developed RSDS and the chance of developing such complication should be less than 5%.

Pain, suffering and loss of amenities

15. It is common ground between the parties that the injury sustained by the plaintiff was a fracture of the lateral malleolus of the left distal fibula (the lower end of the outer leg bone close to the ankle). I accept Dr Tsoi's opinion that RSDS should not be taken into account as a contributing factor. If it is true as claimed by the plaintiff that he still suffers constant pain in his left foot, I accept Dr Tsoi's opinion that the pain can be explained by the presence of the sciatic nerve pain from the compression of the L5 nerve root.

16. In Dr Chiang's report of 5 September 2000, he did say that the examination of the low back showed that the limitation in the left-sided straight leg raising test was compatible with a prolapse of the lower lumbar disc. He said this condition was unlikely to be related to the accident. Also in his report dated 2 February 2002, he did not comment on or challenge Dr Tsoi's view that the pain in the left leg was the sciatic nerve pain. After reviewing the following cases, namely, Chan Ming v. Wayfine Investment Ltd [2001] HKEC 372, To Ying Wa v. Cargo-land (Warehouse) Development Ltd [2001] HKEC 127, Yeung Sze v. Win Art Design and Decoration Co. Ltd [2001] HKEC 764 and Chan Wai Leung v. Mo Sheung Wah [2001] HKEC 1311, I award for PSLA the sum of $200,000.

Pre-trial loss of earnings

17. The plaintiff is entitled to full loss of earnings during the time that he was unable to return to work. He was granted three years' sick leave by the government doctors but Dr Chiang, even taking RSDS into account, was only prepared to give 18 months. Dr Tsoi suggested six months' sick leave based purely on the medical injuries and without taking into account RSDS. Dr Chiang did not suggest the appropriate sick leave period in the event that his opinion that RSDS was a contributing factor was wrong. I find that nine months would be a reasonable period. There is no dispute that the plaintiff earned $700 a day at the time of the accident. The plaintiff claimed that he was working 30 days a month. He, therefore, based his claim on the sum of $21,525. However, this claimed income is not supported by his tax return for the year 1995 to 1996 and for the year 1996 to 1997 when the income was $79,000 and $72,000 respectively. I therefore find that he can only claim loss of earnings on the basis of working for 26 days per month. Based on 26 days per month, his income was $18,200 per month. The loss of earning is, therefore, $18,200 x 9 months = $163,800. I therefore award to the plaintiff the sum of $163,800 for pre-trial loss of earnings.

Loss of future earnings

18. Dr Arthur Chiang, in his report dated 5 September 2000, came to the view that the back pain described by the plaintiff was unlikely to be related to the accident as there was no obvious repeated mentioning of back symptoms in the doctor's report and the various reports available for reference. Dr Chiang, the plaintiff's expert, came to the conclusion that physically with respect of the left ankle condition, the plaintiff should be able to return to the pre-injury job but with some reduction in his work capacity. The defendant's expert, Dr Danny Tsoi, in his report dated 17 July 2000, came to the conclusion that the disability caused by the back pain, left sciatica and weakened ankle eversion should not be considered in assessing the loss of earning capacity. He concluded that the fracture ankle alone would not preclude the plaintiff from resuming his pre-injury job as a plaster worker and that his future employment prospect would not be limited.

19. I prefer Dr Tsoi's evidence to that of Dr Chiang. I find that the plaintiff's work capacity was reduced in any event by the supervening event of the back pain which was unrelated to the accident. I therefore find that the plaintiff is not entitled to any partial or total loss of earnings after the recovery period which I found above should be one of nine months. In any event, there was no evidence from the plaintiff as regards the current earnings of a plaster remover and, given the present economic climate, the average number of days such a person would be able to work in a month. The plaintiff gave evidence of attending various interviews with various organizations with a view to seeking employment but was turned down on each and every occasion. I find that this was not because of any injuries that he still suffered but because of the poor present economic climate which accounts for a severe shortage of jobs in all fields.

Loss of earning capacity

20. In the plaintiff's Revised Statement of Damages, the sum of $100,000 was claimed under this head. However, in the plaintiff's counsel's final address and written submission, this claim was not repeated nor were any submissions made thereon. I find that on the facts of this case, the plaintiff, because of the supervening back pain, would in any event have become less competitive on the open labour market. However, as I found above, the back pain was not related to the accident, and therefore under this head I do not award the plaintiff any damages.

Special damages

21. Travelling expenses to and from :

(a) Queen Mary Hospital by taxi for follow-up : $70 x 19 round trips = $1,330 and for physiotherapy : $70 x 73 round trips = $5,110.

(b) Sai Ying Pun Specialist Clinic by taxi for follow-up : $45 x 10 round trips = $450.

(c) David Trench Rehabilitation Centre by taxi for occupational therapy : $45 x 127 round trips = $5,715.

Total $12,605.

This sum is claimed by the plaintiff as special damages. There is no evidence from the defence to contradict this, and I therefore accept the plaintiff's evidence on this and award him under this head the sum of $12,605.

22. For traditional Chinese medicine, the plaintiff, in his Revised Statement of Damages, claimed the sum of $7,000. Counsel for the plaintiff accepted that $3,000 under this head would be acceptable to the plaintiff. I therefore award the plaintiff $3,000 under this head.

Interest

23. Interest will be awarded at 2% per annum for general damages for PSLA from the date of writ until date of judgment. Interest on pre-trial loss of earnings and for special damages will be awarded at half judgment rate from the date of accident to date of payment of ECC award. In view of the fact that the ECC award exceeds the total amount of pre-trial loss of earnings and special damages awarded herein, I make no award for interest for the period from the date of payment of ECC award to judgment. I leave it to the parties to work out the amounts of interest payable.

Summary

24. The total sum to be awarded to the plaintiff is $379,405, the breakdown of which is as follows :

(1)	PSLA		$200,000
(2)	Pre-trial loss of earnings		163,800
(3)	Total of special damages		15,605
		Total:	$379,405
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25. There will, accordingly, be judgment for the plaintiff against the defendant in the sum of $379,405. The sum of $674,028 awarded in the ECC proceedings will have to be brought into account. The effect of this is there is no judgment for the defendant to satisfy and I would wish to hear the parties on costs, unless agreement can be reached.