WONG KWAN TUNG v. YETAI CHEMOPLAST CO LTD

HCPI 103/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 103 OF 2007

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J U D G M E N T

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1.  Mr Wong Kwan Tung fell from height in the course of his employment with the Defendant, Yetai Chemoplast Company Limited (“Yetai”), on 27 October 2004.  He commenced this action seeking damages for personal injuries against Yetai, alleging breach of employer’s duty to provide a safe system and place of work.

PLAINTIFF’S CLAIM

2.  Mr Wong’s case is as follows.  He had been employed by Yetai since 1984.  He was required to work at one of Yetai’s premises at No 1, Pine Villa in Shatin (“Villa”).  The Villa was the residence of Mr Fu Tung Miu Tommy (“Mr Fu Senior”) and his family, including his son Mr Fu Chu Ming Gary (“Gary”).  Mr Fu Senior and Gary were at all material times directors of Yetai. 

3.  Mr Wong was required to do various general work at the Villa, such as general maintenance, cleaning, repair and gardening.

4.  On the day in question, Mr Fu Senior asked Mr Wong to clean the roof of the maids quarter with a high pressure power hose as the roof was covered in algae.  Mr Wong had cleaned the roof of the maids quarter before with brooms, but this was the first time with a power hose. 

5.  The roof of the maids quarter was about 9 to 10 feet from the ground.  Mr Wong used an aluminium extendable ladder to get onto the roof.  He did not have anyone else to help him.  The algae removed by the power hose and the water flowed off the edge of the roof and fell onto the ground below.

6.  After he had finished cleaning the roof, Mr Wong climbed down from the ladder.  The ladder was leaning against the edge of the roof when he started climbing down.  No one was holding the ladder on the ground.  When Mr Wong reached about the third step from the top of the ladder, the ladder slipped and Mr Wong fell onto the ground.

7.  Mr Wong’s own case is that he descended the ladder facing outwards, ie, with his back to the ladder, just like descending a flight of stairs.  His case is that he had been descending ladders in that manner for years without any incident, and Mr Fu Senior and his wife had seen him doing so at the Villa but they did not tell him not to do so.

8.  Mr Wong said that when the ladder slipped, his right hand was holding onto the side of the ladder and he fell with the ladder.  His left ankle landed on the ground first.  His lower back and buttocks were on the ladder when his body landed, so he hurt his back as well.

9.  Mr Wong said that he was not wholly conscious immediately after the fall. When he got round, he felt much pain from his ankle and back.  He was unable to get up on his own.  He shouted for help and the maid came to his help.  He managed to get to the shower with the assistance of the maid.  He managed to clean himself and changed into dry clothes.  

10.  Mr Wong then telephoned Mr Fu Senior who was at Yetai’s office in Mongkok.  Mr Fu immediately drove back to the Villa, arriving about 30-40 minutes later.  He then drove Mr Wong to Yuen Long, where Mr Wong resided, to see a bonesetter close to Mr Wong’s residence. 

11.  Mr Wong sought treatment from two bonesetters but the pain in his ankle did not improve.  After about 3 months, Gary told him to go to Tuen Mun Hospital, which he did on 8 February 2005.  He received physiotherapy for his ankle and back.  Unfortunately, he developed adjustment disorder with depressed mood.  I will deal with Mr Wong’s injuries and the medical evidence in more detail later on in this judgment.

12.  Mr Wong resumed working with Yetai on 16 August 2005, about 10 months after the accident.  However, he said that he was unable to cope with the work and resigned on 30 September 2005.  He left Yetai’s employment on 31 October 2005.  Since then, he had been unemployed save for some sporadic part time jobs mainly as a stand-in security guard in residential buildings and a cleaner.

YETAI’S CASE

13.  In its Defence, Yetai did not plead any positive case as to how the accident occurred.  Further, at the first checklist review hearing, Yetai indicated that it would not be calling any factual witness.  However, at the beginning of the trial, Mr Patrick Lim, counsel for Yetai, sought leave to adduce a statement given by Gary in January 2007 in the related Employees Compensation proceedings and to call Gary as a witness.  That application was granted unopposed.  Leave was also granted to Yetai, unopposed, to call Mr Fu Senior to give evidence that when he went back to the Villa and saw Mr Wong, he had told Mr Wong to go to a public hospital but Mr Wong refused and insisted on going to see a bonesetter. 

14.  However, during the course of cross-examination, Mr Lim for the first time put to Mr Wong a positive case that what had happened was that he had fallen off the ladder, rather than the ladder slipping.  When it was pointed out that Yetai’s Defence had not pleaded any positive case about the circumstances of the accident, Mr Lim sought leave to amend the Defence on the second day of the trial to plead that positive case and to admit further witness statements from Mr Fu Senior and Gary in support of that plea.  Leave was given when Mr John Wright, counsel for Mr Wong, indicated that he would be able to deal with Yetai’s case without an adjournment.

15.  In addition to the circumstances of the accident, Yetai’s case is essentially that Mr Wong had been an experienced worker, and did not require any instruction or supervision.  It is claimed that Mr Fu Senior had previously seen Mr Wong descending from ladders facing outwards, and had warned him not to do so.  Mr Wong was thus the author of his own misfortune by adopting an unsafe method of descending the ladder.

16.  As to his post-accident employment, Yetai claims that Mr Wong had not been asked to do any heavy work, and he resigned for his own reasons.

WITNESSES AND CAUSE OF THE ACCIDENT

17.  Mr Wong gave evidence.  He struck me as being an honest and straightforward person. His evidence is also consistent with the contemporaneous documents in all major respects.  In particular, in the Notice of Accident at Work dated 12 March 2005, Mr Wong unequivocally stated in his own words that the ladder slipped while he was descending from the roof due to the wet ground surface. 

18.  Gary and Mr Fu Senior testified on behalf of Yetai.  Gary has no personal knowledge of the accident and can only give hearsay evidence of what others had told him.  In particular, he gave evidence that Mr Fu Senior had told him on the evening of the accident that Mr Wong had said to him (Mr Fu Senior) that he had fallen off the ladder.  However, despite the obvious importance of this evidence, he did not mention it in his EC statement and, as noted above, it had not been raised by Yetai in defence until Mr Lim put that case to Mr Wong in cross-examination. There was no explanation as to why he had not mentioned this obviously important matter before the trial.

19.  It should be noted that when Gary on behalf of Yetai filled in the Form 2 Notice on 21 March 2005, what he wrote was (in certified translation): “… going down via the ladder, because the ground surface was wet and slippery, slipped down from ladder (he) standing …”.  Those words were equivocal because if what Gary intended to say was that Mr Wong had slipped and fell off the ladder rather than the ladder slipping, it is difficult to see why he would mention “because the ground surface was wet and slippery”.  Moreover, Gary accepted that when he filled in the Form 2, he had relied on the Notice of Accident at Work completed by Mr Wong.  That would be surprising if he had thought that it was Mr Wong who had fallen off the ladder, rather than the ladder slipping as Mr Wong had stated in the Notice.

20.  Mr Fu Senior also gave evidence for Yetai.  He testified that on a few occasions prior to the accident, he had seen Mr Wong descending ladders facing outwards and had told him not to do so as it was unsafe.  But he was unable to recall clearly how many times that had happened or when did it happen.  Also, when Mr Fu Senior was asked specifically whether Mr Wong had told him how he (Mr Wong) had slid down the ladder, Mr Fu Senior was only able to say that Mr Wong had told him that he (Mr Wong) had slid down from the ladder but not in detail.  It seems to me quite possible that Mr Fu Senior might have been mistaken about what Mr Wong was telling him about the accident.  He also offered no explanation why his evidence on what Mr Wong had allegedly told him on the date of the accident had not been mentioned anywhere until the trial.

21.  Having carefully considered all the evidence and counsel’s submissions, I accept Mr Wong’s evidence.  In my view, Mr Wong is a credible witness and I prefer his evidence to that of Gary and Mr Fu Senior in all material respects.

22.  Mr Lim, on behalf of Yetai, advanced a case that Mr Wong’s injuries were not consistent with the ladder slipping.  He argued that if the ladder had slipped as suggested by Mr Wong, his head and upper body would have hit the edge of the roof.  In my view, that theory is wholly speculative.

23.  Mr Lim also argued that the ladder would not have slipped in the way described by Mr Wong.  He based the argument on two facts.  First, the feet of the ladder were fitted with anti-slippery covers.  Second, the ground was covered in textured floor tiles.  Without disrespect to Mr Lim, in the absence of expert evidence on the anti-slip qualities of the covers and the tiles, I do not think there is any evidential basis to support that argument.

24.  I therefore find that the accident occurred in the manner described by Mr Wong, namely, the ladder slipped causing Mr Wong to lose his balance and fell to the ground.  In so far as it is relevant, I also find that Mr Wong had not been instructed not to descend ladders facing outwards.

25.  That being the case, I have no hesitation in concluding that Yetai must be liable to Mr Wong for failing to provide him with a safe system of work.  Mr Wong was asked to clean the roof of the maids’ quarter with a power hose.  The ground where the ladder was standing would naturally become wet with the water and algae washed off the roof.  In those circumstances, it was incumbent on Yetai as Mr Wong’s employer to ensure that there would be a safe means of descend from the roof.  It was obvious that a person should be asked to hold the ladder firmly while Mr Wong was climbing down.  That was just common sense and there was no difficulty in Yetai doing so: a maid was present at the Villa at the time.

26.  Yetai relied on Mr Wong’s work experience.  He had been a decoration worker before joining Yetai.  It is said that he had years of working with ladders and should be experienced enough to know how to use a ladder safely without instructions.  Yetai also relied on the safety instructions on the side of the ladder.

27.  I reject that argument.  The evidence of Mr Wong, which I accept, is that he had never received any training on how to use ladders.  I also accept his evidence that Mr Fu Senior had seen him climbing down ladders facing outwards but had not stopped him.  The safety instructions on the side of the ladder were in English.  In any case, it behoves an employer to provide a safe system of work and where necessary, adequate training and supervision.  An employer could not simply leave an employee to his own devices and assume that the employee would read and understand safety instructions in a language which the employee may not understand.

28.  In my view, therefore, Yetai’s failure to provide a safe system of work caused or materially contributed to the accident and it must be held liable for the accident.

CONTRIBUTORY NEGLIGENCE

29.  Mr Lim very fairly accepted that if someone had been holding the ladder at the bottom while Mr Wong was descending, the ladder would probably not have slipped.  He accepted that there would be no contributory negligence in that scenario.  I agree with that concession.

INJURIES AND QUANTUM

30.  There is little dispute over the injuries suffered by Mr Wong.  He suffered from fractures of the left heel bone and minor compression fracture of T12 and L2 vertebrae.  Also, Mr Wong developed adjustment disorder with depressed mode.

31.  The main factual disputes on quantum are:

(1)     Whether Mr Wong’s conduct in seeing bonesetters rather than going to a hospital for treatment aggravated the injuries; and

(2)     Whether Mr Wong left his employment with Yetai because of his own reasons.

Visiting bonesetters rather than going to a hospital after accident

32.  As set out above, Mr Wong went to see a bonesetter immediately after the accident rather than going to a hospital for treatment.  There is a dispute as to whether Mr Fu Senior had told him to go to a hospital but Mr Wong insisted on seeing a bonesetter.

33.  I accept Mr Wong’s evidence that Mr Fu Senior had not asked him to go to a hospital.  Mr Wong explained in evidence that since Mr Fu Senior was his employer and would be paying for the medical expenses, if Mr Fu Senior had told him to go to a hospital he would have done so.  His evidence is corroborated by the undisputed fact that when Gary told him to go to a hospital a few months later, he did so.  Mr Wong’s evidence is sensible and I accept his evidence.

34.  The first bonesetter who saw Mr Wong on the day of the accident in fact had an X-ray taken of Mr Wong’s ankle.  Unfortunately, although the bonesetter could see from the X-ray that his ankle was fractured, he did not advise Mr Fu to go to a hospital but continued to treat Mr Fu with herbal medicine only. 

35.  Later on, when the pain in his ankle and back persisted, Mr Wong saw another bonesetter who also did not advise Mr Wong to go to a hospital to treat the fractures.

36.  Eventually, after some 3 months or so, he went to the Tuen Mun Hospital when Gary told him to do so.  He was given orthopaedic treatment there and received physiotherapy.

37.  In those circumstances, I am satisfied that Mr Wong was not responsible in any way for the extent of the injuries and his conditions.

Mr Wong’s resignation

38.  Mr Wong did return to his pre-accident employment with Yetai on 16 August 2005.  He resigned on 30 September and left his employment on 31 October.  He said he resigned because he could not cope with the work assigned to him.  In particular, he could not climb up ladders (eg to replace light bulbs) and could not manage heavy duties.  There is, however, no suggestion from Mr Wong that he was given heavier workload than before the accident; his evidence is that he was simply unable to cope with what he used to be able to do.  He further said that he had wanted to resign earlier, but Mr Fu Senior did not want him to go.  Eventually, after telling Mr Fu Senior a few times that he wanted to leave, he was asked to write a resignation letter, which he did on 30 September 2005 in the presence of Mr Fu Senior, to take effect on 31 October 2005.

39.  Mr Fu Senior said in evidence that Mr Wong was required to do the same job duties as before, and he did not give Mr Wong any particularly heavy duty.  But he was not able to recall what work was given to Mr Wong or whether Mr Wong was required to climb up ladders to replace light bulbs.

40.  I also take into account the undisputed evidence that before the accident, Mr Wong only worked for an average of 17 days a month, and was paid $15,200 per month with an annual double pay for Chinese New Year.  Mr Wong’s unchallenged evidence is that his salary was twice as much as what Yetai would have to pay for someone of his qualification.  There was thus little incentive for Mr Wong to leave.

41.  Taking into account all the evidence, I am satisfied that Mr Wong resigned because he was unable to cope with the work he was required to do.

42.  Having resolved these issues, I turn to consider quantum.

(1) PSLA

43.  The medical evidence is uncontroversial.  Mr Wong suffered from fractures of the left heel bone which healed in a displaced position.  This gave Mr Wong persistent pain.  There was also wasting of the left calf muscle as a result.

44.  In a video taken surreptitiously in July 2006, he was seen walking with a mild limp but without need of any walking stick.  It can be seen from the video that the limp, although still mild, became more noticeable as he walked longer.  On 10 August 2006, he had to use a walking stick to go out.  Mr Wong’s evidence in court is that the pain in his heel has actually got better since August 2006 and he does not need to use a walking stick anymore.

45.  Mr Wong also sustained fracture of L2 and T12 vertebrae as a result of which he developed persistent back pain and stiffness in back movement.  His unchallenged evidence is that his pain, both in the ankle and his back, would get worse when the weather turned humid and he has to use analgesic from time to time.

46.  Both orthopaedic experts who had examined Mr Wong agreed that his conditions were permanent and unlikely to improve.

47.  Mr Wong was also diagnosed to be suffering from adjustment disorder caused by the accident.  The symptoms include depression, low-esteem and reluctance to see people.  Mr Wong testified that he still has nightmares and would wake up in the middle of the night.  He still has to take psychiatric medication.

48.  Both psychiatrists who examined Mr Wong agreed that Mr Wong’s depression was at least in part caused by the accident.  Dr Lo Chun Wai, the psychiatrist retained on behalf of Mr Wong, opined that the depressive symptoms were wholly caused by the accident.  On the other hand, Dr Wong Chung Kwong, the psychiatrist retained on behalf of Yetai, opined that there were multiple causes of Mr Wong’s disorder.  He opined that Mr Wong’s past unhappy relationship with his family members, his previous financial difficulties and the accident all contributed to his conditions, with the accident being one-third causative of the disorder.

49.  On the basis of the evidence summarised above, Mr John Wright, counsel for Mr Wong, strongly advocated that his client’s injuries fell within the low end of the “serious injury” category as described in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657, ie: “a disability which mars general activity and enjoyment of life but allows reasonable mobility to the victim; eg loss of a limb replaced by a satisfactory device, or bad fractures leaving recurrent pain.”

50.  Mr Wright advocated an award of $450,000.  In support of that submission, he referred me to a number of cases, including: Ng Wah Chun v Cheng Wing Chung, HCPI 164/2001 (Recorder Ronny Wong SC, 27 September 2002); Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction Co, HCPI 244/2002 (Deputy Judge To, 24 October 2003); Yu Kok Wing v Lee Tim Loi t/a Tim Wan Painting and Decoration Works, CACV 139/2000 (23 May 2001); Chu Kwong Sang v Chuen Wo Transportation Ltd, HCPI 296/2002 (Deputy Judge Fung, 22 December 2004); Kong Lai Mei v Yu Wing Fong, Lee Yan Chun and Cheng Tak Chiu t/a Tim Shing Engineering Co, HCPI 381/2000 (Master M Yuen, 1 June 2001) and Chan Yiu Ping v Mok Yuk Kwong, Chiu Tin Yick, Lee Yuk Kwan and Choi Chun Wah formerly t/a Yuet Hing Yuen Vietnamese Restaurant, HCPI 92/1998 (Suffiad J, 3 July 2000).

51.  Mr Lim, on the other hand, submitted that $300,000 would be appropriate in the circumstances of this case, adopting Dr Wong’s approach in terms of causation to the psychiatric illness.  In addition to the cases cited by Mr Wright, Mr Lim referred me to Limbu Man Bahadur v Tsang Chan Fai, HCPI 486/2003 (Recorder Kwok SC, 29 July 2004) and Yip Wai Chung v Kwok Leung Engineering Co Ltd, HCPI 162/2005 (Deputy Judge Saunders, 28 November 2005).

52.  Having considered all the authorities cited by counsel, I think the injuries of Mr Wong are not so serious as to fall within the “serious injury” bracket.  It seems to me that his injuries taken as a whole are more serious than those in Ng Wah Chun but similar to, and perhaps just a bit less serious than, those in Yu Kok Wing and Chu Kwong Sang.  In my judgment, an award of $350,000 would be appropriate on the facts of this case.

53.  In coming to this award, I have taken into account Dr Wong’s view that the accident was only one-third causative of Mr Wong’s adjustment disorder.  However, it would seem to be the case that Mr Wong was quite able to cope with his poor relationship with his family and his previous financial problems before his accident.  In the absence of any evidence that those factors would have caused his psychiatric illness without the accident, I should proceed on the basis that the accident was the proximate cause of the psychiatric illness.

(2) Pre-Trial Loss of Earnings

54.  This falls to be assessed from 1 November 2005 to the date of the trial as Mr Wong received his salaries up to 31 October 2005.

55.  The parties agree that for the period from 1 November 2005 to 28 October 2006, the loss of earnings was $293,314.

56.  From 28 October 2006 onwards, Mr Wong accepted that he was able to resume working although in a more sedate kind of job such as a security guard.  He had in fact found some part-time employment as a stand-in security guard and also as a cleaner.  Mr Wright suggested a notional earning of $7,000 per month, which is accepted by Mr Lim.  However, to compare like with like, I agree with Mr Lim that I should assess Mr Wong’s loss of earnings on a 13 month pay basis.  Hence the loss of earnings over this period is:

($16,466.67 - $7,583.33) x 16 months x 1.05 [MPF] = $149,240

(3) Future Loss of Earnings and Loss of Earning Capacity

57.  Mr Wong is aged 56 at trial.  I accept Mr Wright’s submission that a multiplier of 6 is appropriate.  Future loss of earnings is therefore:

($16,466.67 - $7,583.33) x 72 months x 1.05 = 671,580

58.  As to loss of earning capacity, I agree with Mr Lim that a modest award of $20,000 would be appropriate.

(4) Future Medical Expenses

59.  Both psychiatric experts agree that Mr Wong would require further regular follow up treatment of one year.  The dispute is whether Mr Wong should be compensated for the costs of such treatment at a public hospital or with private practitioners.

60.  In my view there is no reason why Mr Wong could not seek treatment from the Tuen Mun Hospital or a public hospital.  I would award a lump sum of $5,000 for this head, to include travelling expenses.

(5) Special Damages

61.  These are agreed at $5,365.

TOTAL QUANTUM

62.  Mr Wong has received $274,761 by way of Employee’s Compensation which must be deducted from the common law damages.

63.  Total quantum therefore comes up to $1,219,738:

64.  There will in addition be interest on PSLA at 2% from the date of the writ, and on pre-trial pecuniary loss at half judgment rate from the date of the accident to judgment.

ORDER

65.  I order that Yetai shall pay Mr Wong damages in the sum of $1,219,738 plus interest as stated in paragraph 64 above.

66.  I also make an order nisi that Yetai shall pay Mr Wong’s costs of the action to be taxed if not agreed, and that Mr Wong’s own costs be taxed in accordance with Legal Aid Regulations.