HCPI1063/1996 TSANG CHUNG WAN v. LI MING AND OTHERS - LawHero
HCPI1063/1996
高等法院（人身傷害）Deputy Judge Suffiad10/2/1998
HCPI1063/1996
1996, No. P.I. 1063
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
_______________
BETWEEN
TSANG CHUNG WAN Plaintiff
and
LI MING or LEE MING 1st Defendant
PO ON CONSTRUCTION SECTION 2nd Defendant
T. S. WONG & CO. LTD. 3rd Defendant
________________
Coram: Deputy Judge Suffiad in Court
Dates of hearing: 16th, 19th-21st January, 1998
Date of handing down judgment: 11th February, 1998
JUDGMENT
The Plaintiff’s claim
The Plaintiff brings this action as an employee of the 1st Defendant
who was the sub-sub contractor of the 2nd Defendant who in turn was the
sub contractor of the 3rd Defendant being the principal contractor of a
construction site in Tin Shiu Wai (“the site”).
The Plaintiff claims damages for injuries sustained to the ring and
middle fingers of his right hand while he was working on the site on 13th
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October 1993. The Plaintiff worked as a formwork carpenter and has been
working for the 1st Defendant as such since mid-March 1993. His work
involved him, together with two other workers, putting up formwork in, inter
alia, liftshafts of buildings under construction for concreters to pour their
concrete. This was done progressively floor by floor upwards. In order to
carry out such work in the liftshaft, they had to first construct a working
platform across the void of the liftshaft. It was from such a platform that the
Plaintiff and his co-workers put up the formwork for each floor and it was
also from this platform that the concreters as well as the steel-binders
worked. When the formwork for a floor was completed, the Plaintiff and his
co-workers would have to put up a new platform at the top of the formwork
so completed to enable them to start on the formwork for the next floor of
the building as the construction of the building progressed upwards.
Up to the 9th floor of the building being constructed on the site, the
Plaintiff noticed that the working platform was wobbly and unstable. This
was due to the fact that the steel bars inserted into the formwork and used to
support the working platform sometimes became displaced when concrete
was poured into the formwork. With a view to improving the safety of the
working platform, the Plaintiff noticed that other workers doing a similar
kind of work as he was doing, but in another block in the same site, used
bent steel bars instead of the straight ones that he was using to support the
working platform. He made enquiries from them and learnt that bent steel
bars will not become displaced but will remain in position when concrete is
poured into the formwork. As a result he spoke to the 1st Defendant
requesting the 1st Defendant to supply them with bent steel bars or get
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others to bend the steel bars for them to use. This request of his was ignored
by the 1st Defendant.
Not content to let the matter rest there, the Plaintiff decided to do
something about it himself. As he had seen steel benders bending steel bars
with a steel bending machine on the ground floor of Block 10, he
approached one of them who not only showed him how to operate the
machine but also allowed the Plaintiff to try it for himself. Furthermore the
steel bender told the Plaintiff that if he wanted steel bars bent, he could do it
in that way himself with the machine.
Since that time, the Plaintiff used that machine himself to bend steel
bars which were used to erect the working platforms from the 9th floor up to
the 19th floor which spanned some two months. During these two months,
the 1st Defendant knew because he had seen the Plaintiff bending steel bars
for such use and on occasions the 1st Defendant would either help carry the
bent steel bars up to the floor where they are to be used or would cause the
steel bars to be lifted up to a particular floor by crane.
Everything went well until the accident happened. On the day of the
accident, 13th October 1993, the Plaintiff had brought along 12 steel bars to
the bending machine to bend. The bending machine is shaped like a desk on
the top of which there is a rotating disc operated by a lever that controls the
direction of its rotation whether clockwise or anti-clockwise. On the rotating
disc there are three round holes into which can be inserted iron rods which
will then stand there in a perpendicular manner. Immediately outside the
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circumference of the rotating disc and surrounding it are another three
similar round holes into which another three iron rods can be inserted also to
stand there perpendicularly so that when the machine is switched on and the
disc is operated to rotate, the three rods standing perpendicularly on the disc
will move with the disc in a circular manner as the disc rotates while the
three rods outside of the disc will stand there in their fixed positions. Before
the disc is operated to rotate, the steel bar to be bent is placed horizontally
across the rotating disc with one end of it against one of the fixed
perpendicular iron rods. Using the axle of the rotating disc as a pivot, once
the disc is operated to rotate, one of the perpendicular iron rods moving in a
circular manner with the rotating disc will exert force on the other end of the
steel rod to bend it. When it is bent to the desired angle, the operator steps
on a foot pedal which serves as a brake to stop the disc from further rotating.
The operator then, by using the lever, causes the disc to rotate in the
opposite direction slightly so as to release the bent steel bar in order for it to
be picked up off the top of the machine.
The plaintiff had already bent 9 steel bars, bending three at a time in
the way that he was taught by the steel-bender. When he came to the last
three bars, he had bent them to the desired angle on the machine. Wishing to
stop the disc from further rotating, he stepped on the brake pedal with his
foot. However, for some unknown reason, the disc did not stop but
continued to rotate. He stepped on the pedal a second time but the disc still
failed to respond. The Plaintiff was holding on to the steel bars with his right
hand. He could not let go because he feared that the bending force was such
that it would cause the three steel bars to fly upwards which would be even
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more dangerous. As a result his ring and middle finger got crushed between
the steel bar and the rotating axis causing serious injuries to the two fingers
of his right hand.
For this injury, the Plaintiff claims against the three defendants in this
action.
Position of the 1st Defendant
The Plaintiff claims against the 1st Defendant as his employer. The
Plaintiff gave evidence that for the work he was doing on the site, it was the
1st Defendant who had recruited him and his co-workers. He was paid by the
1st Defendant and supervised by him in his work. It was the 1st Defendant
who had quoted to them the rate of the daily wages as well as the rate of the
piecework which he paid them for. When one of his co-workers left, the 1st
Defendant recruited another to take the place of the one leaving. At all times
the 1st Defendant maintained a team of three workers to work as a team.
The 1st Defendant was not called to give evidence although a witness
statement of his had been filed. By reason of the fact that the 1st Defendant
was not called to the witness box, it is accepted by the parties that I should
not treat the contents of his witness statement as evidence before me in this
case. No other evidence was called by the defence to challenge the evidence
of the Plaintiff on this aspect of the case.
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I accept the Plaintiff’s evidence and find that the 1st Defendant was at
all material times the employer of the Plaintiff and had been so since mid-
March 1993 right up to the time of the accident, for the whole while that the
Plaintiff was working at the site.
The duty of an employer
The standard of an employer’s duty towards his employee is to see
that reasonable care is taken; the scope of that duty extends, inter alia, to the
provision of a safe place of work and to exercise an effective supervision
over his employee. Such duty of an employer is personal and non-delegable
and therefore he could not expect his employee to discharge his duty of care
for him.
Having seen the Plaintiff give his evidence, I find the Plaintiff to be an
honest and reliable witness. I accept his evidence that during the initial stage
of his work up to about the 9th floor of the building he was working on, he
found the working platform wobbly and unstable due to the fact that some of
the steel rods used at that time became easily displaced when concrete was
poured into the formwork. I further accept his evidence that after he became
aware that bent steel bars could overcome that problem, the request which
he made to the 1st Defendant to be provided with bent steel bars was ignored
by the 1st Defendant. For that reason, I find that the 1st Defendant was in
breach of his duty towards the Plaintiff to provide him with a safe place of
work, namely the working platform.
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Causation
It is not disputed that the Plaintiff’s injuries were sustained because
his fingers were crushed while he was bending steel bars with the steel
bending machine. The purpose of his bending these steel bars were so that
he could use the bent steel bars to construct a safer working platform from
which he , his co-workers, the concreters and the steel binders worked.
In this respect I also accept the Plaintiff’s evidence that after his initial
request to the 1st Defendant to be provided with bent steel bars had been
ignored by the 1st Defendant, for the two months or so prior to the accident
while he was working between the 9th and the 19th floors of the building
under construction, the 1st Defendant had on occasions seen the Plaintiff
bending steel bars at the steel bending machine and had also helped the
Plaintiff or his co-workers carrying the bent steel bars up to the various
floors that they were working on from time to time. From this evidence, the
1st Defendant either knew or ought to have known that the Plaintiff had
taken upon himself to bend steel bars for use in the construction of the
working platforms resulting from the 1st Defendant’s failure to provide such
steel bars as requested by the Plaintiff.
The question that has to be decided therefore is one of causation -
namely, did the breach of duty by the 1st Defendant towards the Plaintiff in
failing to provide the Plaintiff with the bent steel bars for putting up the
working platform cause the injury to the Plaintiff’s fingers which were
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crushed by the steel bending machine? In order to answer that question I
need to decide on the two following matters:-
(a) Could the 1st Defendant have foreseen that injury would be
caused to the Plaintiff as a result of his breach of duty to the
Plaintiff; and if so
(b) Was the damage suffered by the Plaintiff too remote.
Foreseeability
In Hughes v Lord Advocate [1963] A.C. 837 it was held that the
precise manner in which the damage was caused did not have to be
foreseeable. It was simply the kind of damage which had to be foreseen. This
approach was followed in The Trecarrell [1973] 1 Ll. Rep. 402
Applying the principle laid down in Hughes v Lord Advocate the
Plaintiff need not show that the 1st Defendant could have foreseen that the
foot pedal of the steel bending machine would fail to respond when stepped
on by the Plaintiff at the time of the accident thereby failing to stop the disc
from rotating thus causing the injuries to the Plaintiff.
In the present case the damage caused to the Plaintiff are the injuries
to the middle and ring fingers of his right hand. Given that I have already
found as a fact that the 1st Defendant was aware of the Plaintiff bending the
steel bars himself by operating the steel bending machine coupled with his
knowledge that the Plaintiff was engaged by him as a formwork carpenter
and not a steel bender, it must have been within the 1st Defendant’s
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contemplation and therefore foreseeable to him that the Plaintiff could meet
with some form of physical injury when operating such a machine not being
skilled or experienced in that respect.
Remoteness
Then was the damage suffered by the Plaintiff too remote? Put
another way, was the activity of the Plaintiff in working the steel bending
machine from which his injuries arose a natural and probable consequence
of the breach by the 1st Defendant of his duty to provide the Plaintiff with a
safe working platform?
In Sayers v Harlow Urban District Council [1958] 1 WLR 623 it was
held by the Court of Appeal in England that on the question of remoteness of
damages it was the duty of the court to balance the risk taken by the plaintiff
against the consequences of the defendants’ breach of duty.
Applying that principle to the present case, I find, firstly, that the
consequences of the 1st Defendant’s breach of duty was that there was a real
risk of the wobbly and unstable working platform collapsing. It was a risk
which made the Plaintiff apprehensive enough for him not only to check out
how other workers in a different block ensured a safer working platform than
the one he was working on, but also to go well out of his way to bend steel
bars himself for the two months or so before the accident in order that he
could construct a safer working platform - not only for himself but also for
his co-workers. If the wobbly working platform did collapse, that could have
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entailed dire consequences to lives and limbs of the workers working on the
platform in view of the fact that it was erected over the void of the lift shaft
of the building under construction.
On the other hand, what was the risk taken by the Plaintiff when he
took it upon himself to operate the steel bending machine to bend steel bars?
In this regard I accept the Plaintiff’s evidence that he was shown by one of
the steel benders how to operate the steel bending machine and had in fact
bent some steel bars under the supervision of that steel bender after he had
been shown how to operate it. I further accept the Plaintiff’s evidence that
he was then told by that steel bender that in future if he wanted to bend steel
bars that was the way to do it and that he could do it himself on the machine.
This evidence shows quite clearly that the Plaintiff had obtained some form
of instructions from a steel bender as to how to operate such a machine and
that he had also obtained permission from the steel bender to use the
machine himself after demonstrating what he had learnt from the steel
bender. Furthermore he had used that machine for some two months on his
own, bending steel bars in the way he was taught by the steel bender and
without coming across any difficulty in operating that machine. There is no
evidence before me that the steel bending machine is a machine which is
inherently dangerous or that any parts of it should have been guarded but
was not. Indeed the evidence from the Plaintiff, which I accept, is that the
accident occurred because on that one occasion the foot pedal failed to
respond when stepped on and therefore the rotating disc could not be
stopped - something which did not happen for the two months preceding
when the Plaintiff was using that machine.
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In these circumstances I find that the Plaintiff did not assume an
unnecessary or unreasonable risk when he decided to take it upon himself to
bend steel bars for use in constructing the working platform. If anything, it
shows that the Plaintiff went about it in a proper and reasonable manner
despite that fact that he was not skilled in that aspect.
In conclusion therefore, in so far as causation is concerned, I find that
the injuries to the Plaintiff are a direct and natural consequence of the
default of the 1st Defendant in failing to provide the Plaintiff with the bent
steel bars for him to construct safe working platforms to work from.
Position of the 2nd and 3rd Defendants
It was conceded by Mr. Pirie that the 2nd and the 3rd Defendants
were occupiers of the site and as such owed a duty of care under the
Occupier’s Liability Ordinance to the Plaintiff who was working on the site.
However it is disputed that they or either of them were in breach of that duty
towards the Plaintiff.
On the other hand, Mr. Chan puts his case against the 2nd and 3rd
Defendants on the basis that they were in breach of their duty of care as
occupiers to the Plaintiff in that they, as occupiers of the site ought to have
foreseen that a defective machine such as the steel bender used by the
Plaintiff at the time of this accident would cause injury to anyone using it.
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There was no evidence before me as to why the foot pedal failed to
stop the disc from rotating when it was stepped on by the Plaintiff at the
time of the accident. Indeed it appears that the Plaintiff made no effort to
identify the machine after the accident as a result of which there was no
evidence of any inspection having been carried out on the machine to show
whether there was any defect. On the other hand, as I have already found
from the Plaintiff’s own evidence, he had been using that machine to bend
steel bars for some two months prior to the accident and for all that time
there was certainly nothing wrong with the foot pedal or any other parts of
that machine which would have alerted him or anyone else for that matter
that the machine was not working properly.
In the circumstances I am not satisfied, even on balance, that the
Plaintiff has established that the machine used by him at the time of the
accident was defective, nor that the 2nd and the 3rd Defendants could or
ought to have foreseen that that machine would cause injury to persons using
it by reason of some defect. I therefore come to the conclusion that the 2nd
and the 3rd Defendants were not in breach of their duty of care which they
owed to the Plaintiff as occupiers.
Breach of Statutory Duty
Mr. Chan further sought to rely on Regulation 45 (1) of the
Construction Sites (Safety) Regulations under the Factories and Industrial
Undertakings Ordinance Cap.59. It reads:
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“The contractor responsible for any mechanical equipment shall
ensure that, when it is used on a construction site, it is not operated
except by a workman who is trained and competent to operate it:
Provided that the equipment may be operated by a workman not so
qualified if he is operating it under the supervision of another worker
who is so qualified.”
Mr. Chan concedes that Regulation 45 (1) can have no application to
the 2nd Defendant who is a formwork subcontractor but argues that the 3rd
Defendant, being the main contractor of the site, is caught by this regulation
such that it was under a duty to ensure that the Plaintiff, who is not trained
and competent to operate a steel bending machine, did not operate that steel
bending machine, but failed to comply with that duty.
Mr. Pirie on the other hand submits that this regulation casts a duty
only on the contractor who was responsible for that steel bending machine
which caused the injuries to the Plaintiff. In this regard Mr. Pirie points out
that different regulations in the Construction Site (Safety) Regulations
differentiate between different contractors. Variously throughout these
Regulations phrases such as ‘contractor responsible for a hoist’; ‘contractor
responsible for a scaffold’; ‘contractor responsible for a construction site’
are used in imposing different duties in respect of different things on
different contractors. Therefore, says Mr. Pirie, if it was the legislature’s
intention that the main contractor should be responsible for ensuring, under
Regulation 45 (1), that only trained and competent workmen were to operate
mechanical equipment, then it would have used the phrase ‘contractor
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responsible for the site’ rather than the phrase actually used ‘contractor
responsible for any mechanical equipment’.
With this submission of Mr. Pirie I am in agreement. Moreover there
is no evidence before me as to the identity of the contractor responsible for
the steel bending machine used by the Plaintiff at the time of the accident. In
the absence of such evidence therefore, I am of the view that in this case,
whoever else it may have been who was under a statutory duty imposed by
Regulation 45 (1), it was not the 3rd Defendant. For that reason, the 3rd
Defendant cannot be in breach of Regulation 45 (1) of the Construction Sites
(Safety) Regulations under Cap.59.
Liability
In the light of the matters stated above, I find the 1st Defendant liable
to the Plaintiff in negligence. I further find the 2nd and the 3rd Defendants
not liable either in negligence or for breach of statutory duty.
Contributory Negligence
It was submitted by Mr. Pirie that the Plaintiff, not being skilled or
competent or qualified to operate a steel bending machine, had no business
to be operating such a machine and that I cannot rule out the possibility that
the injuries arose from the Plaintiff’s mishandling of the machine.
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Furthermore, Mr. Pirie says that the Plaintiff took upon himself that risk
without the permission of the owner of the machine. In both these regards,
therefore, the Plaintiff was the author of his own misfortune and must bear
some if not all of the blame for the injuries sustained by him. On that basis
Mr. Pirie invites me to find the Plaintiff 20-25 % to blame.
Mr. Chan on the other hand submits that there is no contributory
negligence because the Plaintiff took on the steel bending himself not to save
himself trouble but to get on with his employer’s business citing the Court of
Appeal’s judgment in Sun Wan Co v Ng Kam [1988] HKC 358 and also the
decision of Cheung J. in Lai Chi Pon v Toto Steel & Iron Works Ltd. [1997]
2 HKC 195.
The words of McNair J. in Machray v Stewarts and Lloyds Ltd.
[1964] 3 All ER 716 at 721 which was cited by Cheung J. in Lai Chi Pon
(supra) bears repeating:-
“ when I find a workman, an employed man, adopting a course of
conduct not for the sake of saving himself trouble but in order to get
on with his employer’s business, and I find that he has been prevented
from doing the work in the way in which he would have preferred to
do by the employer’s breach in not providing him with the proper
tackle, I am very slow to put any blame on him”
With these words I am in total agreement. In the present case, when
the Plaintiff took on the steel bending himself, he was doing that which
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should have been provided for by the 1st Defendant. In so doing, his only
purpose was to better ensure not only his own safety but also that of the
other workers who had to make use of the working platform. He was not
saving himself trouble, but quite the contrary, was going well out of his way
to make the platform safer for all concerned. Moreover, the manner in which
he went about it showed that he took pains to learn, at least the basics, of
how to operate such a machine, sufficiently to serve his own purposes,
through someone skilled in its operation.
I have already found as a fact that the accident occurred because the
brake pedal failed to respond on that isolated occasion. There remains the
fact that there is no evidence before me that it was due to any carelessness or
wrongdoing on the part of the Plaintiff which brought about his injuries.
In the circumstances as I have stated above, I find that there was no
contributory negligence on the part of the Plaintiff.
Injury
As a result of the accident, The Plaintiff, who is right handed, suffered
a comminuted fracture of the proximal phalanx of his right ring finger. It
was operated on the same day and K-wire fixation performed. Skin grafting
was performed on his right middle finger on 19th October 1993. A further
operation was performed on 1st December 1993 to remove exposed bony
fragment.
16
He received physiotherapy treatment between 30th November 1993
and 8th April 1994 as well as 52 sessions of occupational therapy between
3rd December 1993 and 13th April 1994. He was granted sick leave for the
full two year period from the date of the accident up to 13th October 1995.
The Plaintiff was examined by Dr. Arthur Chiang in October 1995.
Dr. Chiang found that the Plaintiff’s proximal interphalangeal joint of the
right ring finger to be ankylosed i.e. total loss of range of motion. He further
found that there was significant stiffness in the distal interphalangeal joints
of the right middle and ring fingers and the proximal interphalangeal joint of
the right middle finger. He was of the opinion that the loss in motion of the
joints of the right middle and ring fingers will cause impairment in
performing a full grip as well as the fine and repetitive use of the right hand
and assessed such impairment to be 12 % of the whole person. He also came
to the conclusion that the loss of function of the Plaintiff’s right hand was
such that it would not be suitable for the Plaintiff to return to his pre-
accident work in formwork.
The Plaintiff was examined a second time by Dr. Chiang in September
1997 for an update medical assessment of his condition. Whilst Dr. Chiang
found some improvement in the range of motion in the proximal
interphalangeal joint of the right middle finger and thereby re-assessed the
impairment to be one of 9 % of the whole person, he maintained the view
that the Plaintiff would not be able to work as a formwork carpenter as he
would have difficulty in doing the work efficiently. Dr. Chiang also noted
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that the Plaintiff still complains of pain and stiffness in the ring and middle
fingers of his right hand as well as weakness of the right hand.
The Plaintiff was also examined by Dr. Danny Tsoi, appointed by the
defendants, in March 1997. Dr. Tsoi noted that the Plaintiff’s present
complaints were (1) pain over right middle and ring finger even at rest; (2)
stiffness over right middle and ring finger, unable to make a fist; and (3)
weakened right hand grip, unable to grasp heavy objects. After examining
the Plaintiff, Dr. Tsoi formed the view that all the complaints are genuine
and assessed the Plaintiff’s impairment to be at 8 % of the whole person. Dr.
Tsoi further stated that jobs which are suitable for the Plaintiff in his
condition include construction site casual worker, messenger, security guard,
carpark attendant and light duty factory worker.
There is very little, if any, difference between the assessment of the
Plaintiff’s condition and his impairment by the two doctors. Indeed in a later
medical report by Dr. Tsoi dated 21st November 1997, Dr. Tsoi stated:
“I have nothing to disagree with Dr. Chiang’s observation as well as the
assessment on permanent impairment.”
Pain, suffering and loss of amenities
Mr. Chan urges me to find that the injuries to the Plaintiff puts him at
the lower end of the ‘serious injury’ category and suggests the figure of
$450,000.00 taking account of inflation at 6 % p.a. since the decision by the
Court of Appeal in Chan Pui Ki v Leung On and anr. in July 1996
18
Mr. Pirie on the other hand says that the injuries fall well below the
‘serious injury’ category and suggests a figure of between $320,000.00 to
$350,000.00. In this respect, he refers to the cases of Wong See Mo v Lam
Nam Fui [1991] 1 HKLR 361 and Ma Kam Yeung v Fu Hay Kin and
ors.(unreported) P.I. No. 769 of 1997.
In Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 the Court of
Appeal said of the ‘serious injury’ category as follows:-
“ This is the lowest category. It covers those cases where the injury
leaves a disability which mars general activities and enjoyment of
life, but allows reasonable mobility to the victim, for example, the
loss of a limb replaced by a satisfactory artificial device, or bad
fractures leaving recurrent pain.”
In this case, the joints of the Plaintiff’s middle and ring fingers of his
right hand are ankylosed with significant stiffness. From the medical
assessment by the doctors this impairment will probably remain with the
Plaintiff for the rest of his life. When last seen by Dr. Chiang in September
1997 the Plaintiff was still experiencing some pain in these two fingers.
There is nothing to suggest that this pain will not linger on for some time yet
to come. On the other hand, when the Plaintiff was giving evidence, he was
able to draw two sketches to illustrate how the steel bending machine
worked. He did this with his right hand without difficulty. Taking all these
factors into account I am of the view that his injuries and resultant disability
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puts him just outside the lower end of the ‘serious injury’ category. Allowing
for inflation since the decision in Chan Pui Ki v Leung On I assess the
general damages for pain, suffering and loss of amenities at $400,000.00
Pre-Accident earnings
This is a matter of some dispute between the parties. The Plaintiff
gave evidence that when he was employed by the 1st Defendant from mid-
March to mid-October 1993 working on the site as a formwork carpenter, his
basic daily wage was $550.00. However, he says that between mid-March
and mid-June, he was paid to do the formwork in the corridor and although
he cannot remember the rate he was paid for that, he says his total earnings
for that period was $53,100.00. This figure was not supported by any
documents as the Plaintiff says he was paid in cash.
The Plaintiff also gave evidence that form mid-June to mid-October,
he and his two colleagues were paid piece rate of $7,200.00 for the
formwork per floor per block to be shared between the three of them. He
says it took them about 5 to 7 days to complete the same floor level for the
two blocks that they were working on, so that, on an average of 6 days, the
three of them would be sharing some $14,400.00. This works out to be
$4,800.00 for himself for the 6 days or $800.00 per day for himself alone.
He says his total income from this for the period mid-June to mid-October
came to $77,000.00. Again this figure was not supported by any documents
because he was paid in cash.
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Moreover, the Plaintiff says that for the same period i.e. Mid-June to
mid-October, he would at times also be paid the daily basic wage of $550.00
by the 1st Defendant to carry out formwork maintenance. From this he says
he received a total amount of $11,000.00 which again was not supported by
any documents.
Mr. Chan suggests that I should take these three figures i.e.
$53,100.00, $77,000.00 and $11,000.00 add them up and divide the total by
7 months to determine the average monthly income of the Plaintiff. That
would come to $20,157 per month.
On the other hand, Mr. Pirie suggests that these figures given by the
Plaintiff are so unreliable because they are not supported by any documents
that I should use the basic daily wage of $550.00 and multiply that by 26
days to give $14,300.00. Mr. Pirie submits that this figure is further
supported in that it was the figure adopted in the claim by the Plaintiff for
Employees’ Compensation.
There is no dispute that the basic daily wage of the Plaintiff at the
material time before the accident was $550.00 per day. I accept the
Plaintiff’s evidence that at times he will be paid on piece rate basis for which
he can get a higher rate than his basic daily wage - sometimes as high as
$800.00 per day. However, I do not accept that this will be a regular or
frequent occurrence. Neither do I accept that the Plaintiff will be paid piece
rate and a basic daily wage for the same day. The figures given by the
Plaintiff as his total earnings for the various periods between mid-March to
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mid-October 1993 are unsupported by documents and I am not disposed to
rely on them. Doing the best I can from the evidence there is before me and
based on my findings as stated above, I find that the Plaintiff’s pre-accident
earnings to be $17,000.00 per month.
Present earnings but for the accident
The Plaintiff has been working as a formwork carpenter since arriving
in Hong Kong in 1979. Therefore chances are that he would have continued
working as one but for the accident. I have been referred to statistics
compiled by the Census and Statistics Department on the Average Daily
Wages of Workers Engaged in Government Building and Construction
Projects. They show that the average daily wages of carpenter and joiner in
October 1997 to be $1,175.90.
Based on this figure, Mr. Chan submits that the Plaintiff would
probably be earning about $1,700.00 per day today when one takes into
account piece rate work also. I do not accept that. The figure of $1,175.90
contained in the statistics is not a figure for basic daily wage but is stated to
be the average daily wages. As such it would have taken into account also
the earnings obtained from piece rate work. Based on this figure of
$1,175.90 I find that the present monthly earnings of the Plaintiff if he had
continued working as a formwork carpenter to be $30,573.40
Sick Leave Certificates
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The Plaintiff was granted the full 2 year period of sick leave by
various doctors at the Tuen Mun Hospital. All the sick leave certificates
were made the subject of a Hearsay Notice served by the Plaintiff to the
Defendants and there being no challenge to that by the Defendants, these
certificates were admitted into evidence by reason of the Hearsay Notice
without the various doctors being called to give evidence thereof.
At the hearing Mr. Pirie sought to challenge the fact that the Plaintiff
should be granted sick leave for 2 years after the accident. He based his
challenge on the evidence of Dr. Danny Tsoi, called by the Defendants, to
the effect that he was of the opinion the Plaintiff should have been able to
take up some form of employment at the latest by December 1994, some 14
months after the accident.
Dr. Tsoi further tried to explain away the sick leave certificates in this
case by saying that in his previous experience as a Government doctor, when
patients made nuisances of themselves pleading for sick leave to be granted,
doctors would normally take the easy way out by granting sick leave simply
out of convenience. I cannot accept this evidence of Dr. Tsoi as it is a
generalization, not relating directly to the Plaintiff and therefore irrelevant to
the present issues.
If the Defendants had wanted to challenge the length of the sick leave
period granted to the Plaintiff, they should not have allowed these
certificates to be admitted into evidence under the Hearsay Notice and to
23
have cross-examined the doctors who had granted sick leave to the Plaintiff.
In the circumstances, it is not open to them to challenge the sick leave
certificates in the manner that they went about it. Dr. Tsoi not being the
doctor who had issued the sick leave certificates, I would accept the
evidence of the sick leave certificates and prefer that evidence to the opinion
expressed by Dr. Tsoi in that respect.
Loss of Past Earnings
From my findings that the pre-accident earnings of the Plaintiff was
$17,000.00 pr month and his present earnings as a formwork carpenter but
for the accident would have been $30,573.40, I make out that the median for
pre-trial loss of earnings to be $23,786.70. For the first two years
immediately following the accident there would be a total loss of
$570,880.80.
There is also evidence from the Plaintiff that from 18th October 1995
to 14th July 1996 he worked at a construction site as a casual worker at a
daily wage of $350 per day which was later increased to $380 as from 1st
March 1996. He also told the Court that he was dismissed from that job on
14th July 1996 due to slowness in clearing debris because of his injured right
hand. Mr. Chan has helpfully calculated that based on a 26 working day
month, the Plaintiff’s total earnings for this period comes to $83,590.00. In
this respect I accept the Plaintiff’s evidence and Mr. Chan’s calculations.
24
There is also evidence from the Plaintiff that after he was dismissed
from the construction site, he then found work again as a casual worker at
the Chek Lap Kok new airport site. He started work there on 17th July 1996
and has continued working there until now. His initial daily wage was $400
with a $20 meal allowance and a $50 travelling allowance. In December
1996, the daily wage was adjusted to $380 but he received a further daily
allowance of $40. However in May 1997, the travelling allowance was
reduced to $40 per day but the additional allowance was increased to $70.
His wages and allowances were all paid to him by autopay and is shown in
his bank passbook which has been produced into evidence. Again Mr. Chan
has greatly assisted by calculating that his total earnings for the period up to
6th January 1998 less the travellling allowances comes to $224,371.00. I
accept the Plaintiff’s evidence and also Mr. Chan’s calculations in these
respects. I further find that he Plaintiff has done as best he could in the
circumstances in securing these jobs as a casual worker in a construction site
and at Chek Lap Kok.
For the period from mid-October 1995 until trial, the Plaintiff’s loss of
earnings are calculated as follows:-
$23,786.70 x 27 months $642,240.90
less 83,590.00
less 224,371.00
$334,279.90
=========
25
The total pre-trial loss of earnings comes to $905,160.70.
Loss of Future Earnings
Mr. Chan has also added up the Plaintiff’s salary shown in his bank
passbook and after deducting the travelling allowance of $40 per day, the
average of his earnings for the 12 months preceding the trial comes to
$13,052.00. Further it is agreed between the parties that a multiplier of 11
should be used in this case. The multiplicand is calculated as $30,573.00 less
$13,052.00 which comes to $17,521.00
The loss of future earnings I work out to be:-
$17,521 x 11 x 12 $2,312,772.00
less 15% tax liability will give $1,965,856.20
Loss of Earnings Capacity
The Plaintiff seeks also to recover loss of earnings capacity in the sum
of $313, 248.00. This figure represents two years wages at the present rate
of the Plaintiff’s earnings.
In Lau Che Ping v Hoi Kong Ironwares Godown Co. Ltd. [1988] 2
HKLR 650, it was held that an award for loss of future earnings on a partial
basis did not preclude an additional award for loss of earning capacity.
26
Accepting that there is a real risk of the Plaintiff being disadvantaged
in the labour market by reason of his disabilities and taking account of the
fact that he was dismissed in July of 1996 due to that fact, I am,
nevertheless, of the view that the risk is not a great one in this case. In so
saying I have in mind the fact that after the two year sick leave period was
up, the Plaintiff’s evidence was that he found work as a casual worker in a
construction site within a few days’ time. Moreover, after he was dismissed
in July 1996, he was already working at Chek Lap Kok within a few days of
his dismissal.
In the circumstances, I am prepared to accede to Mr. Pirie’s
suggestion that a large award is not called for under this head. I will
therefore adopt Mr. Pirie’s suggestion that an award of $100,000.00 will be
adequate in the circumstances.
Special Damages
The special damages claimed in this case, consisting of $486.00 being
medical expenses, $1,400.00 travelling expenses and $8,514.00 for
nourishing food are not disputed by the Defendants. They total $10,400.00
and will be awarded accordingly.
27
Conclusion
PSLA $400,000.00
Loss of past earnings 905,160.70
Loss of future earnings 1,965,856.20
Loss of earning capacity 100,000.00
Special damages (agreed) 10,400.00
3,318,416.90
Less Employees’ Compensation 455,526.00
$2,925,890.90
==========
There shall be judgment for the Plaintiff against the 1 st Defendant in
the sum of $2,925,890.90. Interest at 2% per annum for pain, suffering and
loss of amenities is awarded from the date of the service of the Writ to the
date of judgment. Interest at 6% per annum from the date of accident,
namely 13th October 1993 to date of judgment in respect of loss of past
earnings and special damages.
The claims against the 2nd and 3rd defendants are dismissed
The Plaintiff will pay to the 2nd and 3rd defendants their costs. The
1st Defendant will pay to the Plaintiff the costs of this action and the
reimbursement for the costs due by the Plaintiff to the 2nd and 3rd
28
Defendants. The Plaintiff’s own costs be taxed under the Legal Aid
Regulations.
This Costs Order shall be nisi at first instance with liberty to either
party to restore for argument on notice given within 14 days of the date of
this judgment.
A. R. Suffiad
Deputy Judge
Court of First Instance
Mr. Samuel Chan, inst’d by D.L.A. for Plaintiff
Mr. Nicholas Pirie, inst’d by M/s Munro Claypole & Reeves for Defendants
29
1996, No. P.I. 1063
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
_______________
BETWEEN
TSANG CHUNG WAN Plaintiff
and
LI MING or LEE MING 1st Defendant
PO ON CONSTRUCTION SECTION 2nd Defendant
T. S. WONG & CO. LTD. 3rd Defendant
________________
Coram: Deputy Judge Suffiad in Court
Dates of hearing: 16th, 19th-21st January, 1998
Date of handing down judgment: 11th February, 1998
JUDGMENT
The Plaintiff’s claim
The Plaintiff brings this action as an employee of the 1st Defendant
who was the sub-sub contractor of the 2nd Defendant who in turn was the
sub contractor of the 3rd Defendant being the principal contractor of a
construction site in Tin Shiu Wai (“the site”).
The Plaintiff claims damages for injuries sustained to the ring and
middle fingers of his right hand while he was working on the site on 13th
1
October 1993. The Plaintiff worked as a formwork carpenter and has been
working for the 1st Defendant as such since mid-March 1993. His work
involved him, together with two other workers, putting up formwork in, inter
alia, liftshafts of buildings under construction for concreters to pour their
concrete. This was done progressively floor by floor upwards. In order to
carry out such work in the liftshaft, they had to first construct a working
platform across the void of the liftshaft. It was from such a platform that the
Plaintiff and his co-workers put up the formwork for each floor and it was
also from this platform that the concreters as well as the steel-binders
worked. When the formwork for a floor was completed, the Plaintiff and his
co-workers would have to put up a new platform at the top of the formwork
so completed to enable them to start on the formwork for the next floor of
the building as the construction of the building progressed upwards.
Up to the 9th floor of the building being constructed on the site, the
Plaintiff noticed that the working platform was wobbly and unstable. This
was due to the fact that the steel bars inserted into the formwork and used to
support the working platform sometimes became displaced when concrete
was poured into the formwork. With a view to improving the safety of the
working platform, the Plaintiff noticed that other workers doing a similar
kind of work as he was doing, but in another block in the same site, used
bent steel bars instead of the straight ones that he was using to support the
working platform. He made enquiries from them and learnt that bent steel
bars will not become displaced but will remain in position when concrete is
poured into the formwork. As a result he spoke to the 1st Defendant
requesting the 1st Defendant to supply them with bent steel bars or get
2
others to bend the steel bars for them to use. This request of his was ignored
by the 1st Defendant.
Not content to let the matter rest there, the Plaintiff decided to do
something about it himself. As he had seen steel benders bending steel bars
with a steel bending machine on the ground floor of Block 10, he
approached one of them who not only showed him how to operate the
machine but also allowed the Plaintiff to try it for himself. Furthermore the
steel bender told the Plaintiff that if he wanted steel bars bent, he could do it
in that way himself with the machine.
Since that time, the Plaintiff used that machine himself to bend steel
bars which were used to erect the working platforms from the 9th floor up to
the 19th floor which spanned some two months. During these two months,
the 1st Defendant knew because he had seen the Plaintiff bending steel bars
for such use and on occasions the 1st Defendant would either help carry the
bent steel bars up to the floor where they are to be used or would cause the
steel bars to be lifted up to a particular floor by crane.
Everything went well until the accident happened. On the day of the
accident, 13th October 1993, the Plaintiff had brought along 12 steel bars to
the bending machine to bend. The bending machine is shaped like a desk on
the top of which there is a rotating disc operated by a lever that controls the
direction of its rotation whether clockwise or anti-clockwise. On the rotating
disc there are three round holes into which can be inserted iron rods which
will then stand there in a perpendicular manner. Immediately outside the
3
circumference of the rotating disc and surrounding it are another three
similar round holes into which another three iron rods can be inserted also to
stand there perpendicularly so that when the machine is switched on and the
disc is operated to rotate, the three rods standing perpendicularly on the disc
will move with the disc in a circular manner as the disc rotates while the
three rods outside of the disc will stand there in their fixed positions. Before
the disc is operated to rotate, the steel bar to be bent is placed horizontally
across the rotating disc with one end of it against one of the fixed
perpendicular iron rods. Using the axle of the rotating disc as a pivot, once
the disc is operated to rotate, one of the perpendicular iron rods moving in a
circular manner with the rotating disc will exert force on the other end of the
steel rod to bend it. When it is bent to the desired angle, the operator steps
on a foot pedal which serves as a brake to stop the disc from further rotating.
The operator then, by using the lever, causes the disc to rotate in the
opposite direction slightly so as to release the bent steel bar in order for it to
be picked up off the top of the machine.
The plaintiff had already bent 9 steel bars, bending three at a time in
the way that he was taught by the steel-bender. When he came to the last
three bars, he had bent them to the desired angle on the machine. Wishing to
stop the disc from further rotating, he stepped on the brake pedal with his
foot. However, for some unknown reason, the disc did not stop but
continued to rotate. He stepped on the pedal a second time but the disc still
failed to respond. The Plaintiff was holding on to the steel bars with his right
hand. He could not let go because he feared that the bending force was such
that it would cause the three steel bars to fly upwards which would be even
4
more dangerous. As a result his ring and middle finger got crushed between
the steel bar and the rotating axis causing serious injuries to the two fingers
of his right hand.
For this injury, the Plaintiff claims against the three defendants in this
action.
Position of the 1st Defendant
The Plaintiff claims against the 1st Defendant as his employer. The
Plaintiff gave evidence that for the work he was doing on the site, it was the
1st Defendant who had recruited him and his co-workers. He was paid by the
1st Defendant and supervised by him in his work. It was the 1st Defendant
who had quoted to them the rate of the daily wages as well as the rate of the
piecework which he paid them for. When one of his co-workers left, the 1st
Defendant recruited another to take the place of the one leaving. At all times
the 1st Defendant maintained a team of three workers to work as a team.
The 1st Defendant was not called to give evidence although a witness
statement of his had been filed. By reason of the fact that the 1st Defendant
was not called to the witness box, it is accepted by the parties that I should
not treat the contents of his witness statement as evidence before me in this
case. No other evidence was called by the defence to challenge the evidence
of the Plaintiff on this aspect of the case.
5
I accept the Plaintiff’s evidence and find that the 1st Defendant was at
all material times the employer of the Plaintiff and had been so since mid-
March 1993 right up to the time of the accident, for the whole while that the
Plaintiff was working at the site.
The duty of an employer
The standard of an employer’s duty towards his employee is to see
that reasonable care is taken; the scope of that duty extends, inter alia, to the
provision of a safe place of work and to exercise an effective supervision
over his employee. Such duty of an employer is personal and non-delegable
and therefore he could not expect his employee to discharge his duty of care
for him.
Having seen the Plaintiff give his evidence, I find the Plaintiff to be an
honest and reliable witness. I accept his evidence that during the initial stage
of his work up to about the 9th floor of the building he was working on, he
found the working platform wobbly and unstable due to the fact that some of
the steel rods used at that time became easily displaced when concrete was
poured into the formwork. I further accept his evidence that after he became
aware that bent steel bars could overcome that problem, the request which
he made to the 1st Defendant to be provided with bent steel bars was ignored
by the 1st Defendant. For that reason, I find that the 1st Defendant was in
breach of his duty towards the Plaintiff to provide him with a safe place of
work, namely the working platform.
6
Causation
It is not disputed that the Plaintiff’s injuries were sustained because
his fingers were crushed while he was bending steel bars with the steel
bending machine. The purpose of his bending these steel bars were so that
he could use the bent steel bars to construct a safer working platform from
which he , his co-workers, the concreters and the steel binders worked.
In this respect I also accept the Plaintiff’s evidence that after his initial
request to the 1st Defendant to be provided with bent steel bars had been
ignored by the 1st Defendant, for the two months or so prior to the accident
while he was working between the 9th and the 19th floors of the building
under construction, the 1st Defendant had on occasions seen the Plaintiff
bending steel bars at the steel bending machine and had also helped the
Plaintiff or his co-workers carrying the bent steel bars up to the various
floors that they were working on from time to time. From this evidence, the
1st Defendant either knew or ought to have known that the Plaintiff had
taken upon himself to bend steel bars for use in the construction of the
working platforms resulting from the 1st Defendant’s failure to provide such
steel bars as requested by the Plaintiff.
The question that has to be decided therefore is one of causation -
namely, did the breach of duty by the 1st Defendant towards the Plaintiff in
failing to provide the Plaintiff with the bent steel bars for putting up the
working platform cause the injury to the Plaintiff’s fingers which were
7
crushed by the steel bending machine? In order to answer that question I
need to decide on the two following matters:-
(a) Could the 1st Defendant have foreseen that injury would be
caused to the Plaintiff as a result of his breach of duty to the
Plaintiff; and if so
(b) Was the damage suffered by the Plaintiff too remote.
Foreseeability
In Hughes v Lord Advocate [1963] A.C. 837 it was held that the
precise manner in which the damage was caused did not have to be
foreseeable. It was simply the kind of damage which had to be foreseen. This
approach was followed in The Trecarrell [1973] 1 Ll. Rep. 402
Applying the principle laid down in Hughes v Lord Advocate the
Plaintiff need not show that the 1st Defendant could have foreseen that the
foot pedal of the steel bending machine would fail to respond when stepped
on by the Plaintiff at the time of the accident thereby failing to stop the disc
from rotating thus causing the injuries to the Plaintiff.
In the present case the damage caused to the Plaintiff are the injuries
to the middle and ring fingers of his right hand. Given that I have already
found as a fact that the 1st Defendant was aware of the Plaintiff bending the
steel bars himself by operating the steel bending machine coupled with his
knowledge that the Plaintiff was engaged by him as a formwork carpenter
and not a steel bender, it must have been within the 1st Defendant’s
8
contemplation and therefore foreseeable to him that the Plaintiff could meet
with some form of physical injury when operating such a machine not being
skilled or experienced in that respect.
Remoteness
Then was the damage suffered by the Plaintiff too remote? Put
another way, was the activity of the Plaintiff in working the steel bending
machine from which his injuries arose a natural and probable consequence
of the breach by the 1st Defendant of his duty to provide the Plaintiff with a
safe working platform?
In Sayers v Harlow Urban District Council [1958] 1 WLR 623 it was
held by the Court of Appeal in England that on the question of remoteness of
damages it was the duty of the court to balance the risk taken by the plaintiff
against the consequences of the defendants’ breach of duty.
Applying that principle to the present case, I find, firstly, that the
consequences of the 1st Defendant’s breach of duty was that there was a real
risk of the wobbly and unstable working platform collapsing. It was a risk
which made the Plaintiff apprehensive enough for him not only to check out
how other workers in a different block ensured a safer working platform than
the one he was working on, but also to go well out of his way to bend steel
bars himself for the two months or so before the accident in order that he
could construct a safer working platform - not only for himself but also for
his co-workers. If the wobbly working platform did collapse, that could have
9
entailed dire consequences to lives and limbs of the workers working on the
platform in view of the fact that it was erected over the void of the lift shaft
of the building under construction.
On the other hand, what was the risk taken by the Plaintiff when he
took it upon himself to operate the steel bending machine to bend steel bars?
In this regard I accept the Plaintiff’s evidence that he was shown by one of
the steel benders how to operate the steel bending machine and had in fact
bent some steel bars under the supervision of that steel bender after he had
been shown how to operate it. I further accept the Plaintiff’s evidence that
he was then told by that steel bender that in future if he wanted to bend steel
bars that was the way to do it and that he could do it himself on the machine.
This evidence shows quite clearly that the Plaintiff had obtained some form
of instructions from a steel bender as to how to operate such a machine and
that he had also obtained permission from the steel bender to use the
machine himself after demonstrating what he had learnt from the steel
bender. Furthermore he had used that machine for some two months on his
own, bending steel bars in the way he was taught by the steel bender and
without coming across any difficulty in operating that machine. There is no
evidence before me that the steel bending machine is a machine which is
inherently dangerous or that any parts of it should have been guarded but
was not. Indeed the evidence from the Plaintiff, which I accept, is that the
accident occurred because on that one occasion the foot pedal failed to
respond when stepped on and therefore the rotating disc could not be
stopped - something which did not happen for the two months preceding
when the Plaintiff was using that machine.
10
In these circumstances I find that the Plaintiff did not assume an
unnecessary or unreasonable risk when he decided to take it upon himself to
bend steel bars for use in constructing the working platform. If anything, it
shows that the Plaintiff went about it in a proper and reasonable manner
despite that fact that he was not skilled in that aspect.
In conclusion therefore, in so far as causation is concerned, I find that
the injuries to the Plaintiff are a direct and natural consequence of the
default of the 1st Defendant in failing to provide the Plaintiff with the bent
steel bars for him to construct safe working platforms to work from.
Position of the 2nd and 3rd Defendants
It was conceded by Mr. Pirie that the 2nd and the 3rd Defendants
were occupiers of the site and as such owed a duty of care under the
Occupier’s Liability Ordinance to the Plaintiff who was working on the site.
However it is disputed that they or either of them were in breach of that duty
towards the Plaintiff.
On the other hand, Mr. Chan puts his case against the 2nd and 3rd
Defendants on the basis that they were in breach of their duty of care as
occupiers to the Plaintiff in that they, as occupiers of the site ought to have
foreseen that a defective machine such as the steel bender used by the
Plaintiff at the time of this accident would cause injury to anyone using it.
11
There was no evidence before me as to why the foot pedal failed to
stop the disc from rotating when it was stepped on by the Plaintiff at the
time of the accident. Indeed it appears that the Plaintiff made no effort to
identify the machine after the accident as a result of which there was no
evidence of any inspection having been carried out on the machine to show
whether there was any defect. On the other hand, as I have already found
from the Plaintiff’s own evidence, he had been using that machine to bend
steel bars for some two months prior to the accident and for all that time
there was certainly nothing wrong with the foot pedal or any other parts of
that machine which would have alerted him or anyone else for that matter
that the machine was not working properly.
In the circumstances I am not satisfied, even on balance, that the
Plaintiff has established that the machine used by him at the time of the
accident was defective, nor that the 2nd and the 3rd Defendants could or
ought to have foreseen that that machine would cause injury to persons using
it by reason of some defect. I therefore come to the conclusion that the 2nd
and the 3rd Defendants were not in breach of their duty of care which they
owed to the Plaintiff as occupiers.
Breach of Statutory Duty
Mr. Chan further sought to rely on Regulation 45 (1) of the
Construction Sites (Safety) Regulations under the Factories and Industrial
Undertakings Ordinance Cap.59. It reads:
12
“The contractor responsible for any mechanical equipment shall
ensure that, when it is used on a construction site, it is not operated
except by a workman who is trained and competent to operate it:
Provided that the equipment may be operated by a workman not so
qualified if he is operating it under the supervision of another worker
who is so qualified.”
Mr. Chan concedes that Regulation 45 (1) can have no application to
the 2nd Defendant who is a formwork subcontractor but argues that the 3rd
Defendant, being the main contractor of the site, is caught by this regulation
such that it was under a duty to ensure that the Plaintiff, who is not trained
and competent to operate a steel bending machine, did not operate that steel
bending machine, but failed to comply with that duty.
Mr. Pirie on the other hand submits that this regulation casts a duty
only on the contractor who was responsible for that steel bending machine
which caused the injuries to the Plaintiff. In this regard Mr. Pirie points out
that different regulations in the Construction Site (Safety) Regulations
differentiate between different contractors. Variously throughout these
Regulations phrases such as ‘contractor responsible for a hoist’; ‘contractor
responsible for a scaffold’; ‘contractor responsible for a construction site’
are used in imposing different duties in respect of different things on
different contractors. Therefore, says Mr. Pirie, if it was the legislature’s
intention that the main contractor should be responsible for ensuring, under
Regulation 45 (1), that only trained and competent workmen were to operate
mechanical equipment, then it would have used the phrase ‘contractor
13
responsible for the site’ rather than the phrase actually used ‘contractor
responsible for any mechanical equipment’.
With this submission of Mr. Pirie I am in agreement. Moreover there
is no evidence before me as to the identity of the contractor responsible for
the steel bending machine used by the Plaintiff at the time of the accident. In
the absence of such evidence therefore, I am of the view that in this case,
whoever else it may have been who was under a statutory duty imposed by
Regulation 45 (1), it was not the 3rd Defendant. For that reason, the 3rd
Defendant cannot be in breach of Regulation 45 (1) of the Construction Sites
(Safety) Regulations under Cap.59.
Liability
In the light of the matters stated above, I find the 1st Defendant liable
to the Plaintiff in negligence. I further find the 2nd and the 3rd Defendants
not liable either in negligence or for breach of statutory duty.
Contributory Negligence
It was submitted by Mr. Pirie that the Plaintiff, not being skilled or
competent or qualified to operate a steel bending machine, had no business
to be operating such a machine and that I cannot rule out the possibility that
the injuries arose from the Plaintiff’s mishandling of the machine.
14
Furthermore, Mr. Pirie says that the Plaintiff took upon himself that risk
without the permission of the owner of the machine. In both these regards,
therefore, the Plaintiff was the author of his own misfortune and must bear
some if not all of the blame for the injuries sustained by him. On that basis
Mr. Pirie invites me to find the Plaintiff 20-25 % to blame.
Mr. Chan on the other hand submits that there is no contributory
negligence because the Plaintiff took on the steel bending himself not to save
himself trouble but to get on with his employer’s business citing the Court of
Appeal’s judgment in Sun Wan Co v Ng Kam [1988] HKC 358 and also the
decision of Cheung J. in Lai Chi Pon v Toto Steel & Iron Works Ltd. [1997]
2 HKC 195.
The words of McNair J. in Machray v Stewarts and Lloyds Ltd.
[1964] 3 All ER 716 at 721 which was cited by Cheung J. in Lai Chi Pon
(supra) bears repeating:-
“ when I find a workman, an employed man, adopting a course of
conduct not for the sake of saving himself trouble but in order to get
on with his employer’s business, and I find that he has been prevented
from doing the work in the way in which he would have preferred to
do by the employer’s breach in not providing him with the proper
tackle, I am very slow to put any blame on him”
With these words I am in total agreement. In the present case, when
the Plaintiff took on the steel bending himself, he was doing that which
15
should have been provided for by the 1st Defendant. In so doing, his only
purpose was to better ensure not only his own safety but also that of the
other workers who had to make use of the working platform. He was not
saving himself trouble, but quite the contrary, was going well out of his way
to make the platform safer for all concerned. Moreover, the manner in which
he went about it showed that he took pains to learn, at least the basics, of
how to operate such a machine, sufficiently to serve his own purposes,
through someone skilled in its operation.
I have already found as a fact that the accident occurred because the
brake pedal failed to respond on that isolated occasion. There remains the
fact that there is no evidence before me that it was due to any carelessness or
wrongdoing on the part of the Plaintiff which brought about his injuries.
In the circumstances as I have stated above, I find that there was no
contributory negligence on the part of the Plaintiff.
Injury
As a result of the accident, The Plaintiff, who is right handed, suffered
a comminuted fracture of the proximal phalanx of his right ring finger. It
was operated on the same day and K-wire fixation performed. Skin grafting
was performed on his right middle finger on 19th October 1993. A further
operation was performed on 1st December 1993 to remove exposed bony
fragment.
16
He received physiotherapy treatment between 30th November 1993
and 8th April 1994 as well as 52 sessions of occupational therapy between
3rd December 1993 and 13th April 1994. He was granted sick leave for the
full two year period from the date of the accident up to 13th October 1995.
The Plaintiff was examined by Dr. Arthur Chiang in October 1995.
Dr. Chiang found that the Plaintiff’s proximal interphalangeal joint of the
right ring finger to be ankylosed i.e. total loss of range of motion. He further
found that there was significant stiffness in the distal interphalangeal joints
of the right middle and ring fingers and the proximal interphalangeal joint of
the right middle finger. He was of the opinion that the loss in motion of the
joints of the right middle and ring fingers will cause impairment in
performing a full grip as well as the fine and repetitive use of the right hand
and assessed such impairment to be 12 % of the whole person. He also came
to the conclusion that the loss of function of the Plaintiff’s right hand was
such that it would not be suitable for the Plaintiff to return to his pre-
accident work in formwork.
The Plaintiff was examined a second time by Dr. Chiang in September
1997 for an update medical assessment of his condition. Whilst Dr. Chiang
found some improvement in the range of motion in the proximal
interphalangeal joint of the right middle finger and thereby re-assessed the
impairment to be one of 9 % of the whole person, he maintained the view
that the Plaintiff would not be able to work as a formwork carpenter as he
would have difficulty in doing the work efficiently. Dr. Chiang also noted
17
that the Plaintiff still complains of pain and stiffness in the ring and middle
fingers of his right hand as well as weakness of the right hand.
The Plaintiff was also examined by Dr. Danny Tsoi, appointed by the
defendants, in March 1997. Dr. Tsoi noted that the Plaintiff’s present
complaints were (1) pain over right middle and ring finger even at rest; (2)
stiffness over right middle and ring finger, unable to make a fist; and (3)
weakened right hand grip, unable to grasp heavy objects. After examining
the Plaintiff, Dr. Tsoi formed the view that all the complaints are genuine
and assessed the Plaintiff’s impairment to be at 8 % of the whole person. Dr.
Tsoi further stated that jobs which are suitable for the Plaintiff in his
condition include construction site casual worker, messenger, security guard,
carpark attendant and light duty factory worker.
There is very little, if any, difference between the assessment of the
Plaintiff’s condition and his impairment by the two doctors. Indeed in a later
medical report by Dr. Tsoi dated 21st November 1997, Dr. Tsoi stated:
“I have nothing to disagree with Dr. Chiang’s observation as well as the
assessment on permanent impairment.”
Pain, suffering and loss of amenities
Mr. Chan urges me to find that the injuries to the Plaintiff puts him at
the lower end of the ‘serious injury’ category and suggests the figure of
$450,000.00 taking account of inflation at 6 % p.a. since the decision by the
Court of Appeal in Chan Pui Ki v Leung On and anr. in July 1996
18
Mr. Pirie on the other hand says that the injuries fall well below the
‘serious injury’ category and suggests a figure of between $320,000.00 to
$350,000.00. In this respect, he refers to the cases of Wong See Mo v Lam
Nam Fui [1991] 1 HKLR 361 and Ma Kam Yeung v Fu Hay Kin and
ors.(unreported) P.I. No. 769 of 1997.
In Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 the Court of
Appeal said of the ‘serious injury’ category as follows:-
“ This is the lowest category. It covers those cases where the injury
leaves a disability which mars general activities and enjoyment of
life, but allows reasonable mobility to the victim, for example, the
loss of a limb replaced by a satisfactory artificial device, or bad
fractures leaving recurrent pain.”
In this case, the joints of the Plaintiff’s middle and ring fingers of his
right hand are ankylosed with significant stiffness. From the medical
assessment by the doctors this impairment will probably remain with the
Plaintiff for the rest of his life. When last seen by Dr. Chiang in September
1997 the Plaintiff was still experiencing some pain in these two fingers.
There is nothing to suggest that this pain will not linger on for some time yet
to come. On the other hand, when the Plaintiff was giving evidence, he was
able to draw two sketches to illustrate how the steel bending machine
worked. He did this with his right hand without difficulty. Taking all these
factors into account I am of the view that his injuries and resultant disability
19
puts him just outside the lower end of the ‘serious injury’ category. Allowing
for inflation since the decision in Chan Pui Ki v Leung On I assess the
general damages for pain, suffering and loss of amenities at $400,000.00
Pre-Accident earnings
This is a matter of some dispute between the parties. The Plaintiff
gave evidence that when he was employed by the 1st Defendant from mid-
March to mid-October 1993 working on the site as a formwork carpenter, his
basic daily wage was $550.00. However, he says that between mid-March
and mid-June, he was paid to do the formwork in the corridor and although
he cannot remember the rate he was paid for that, he says his total earnings
for that period was $53,100.00. This figure was not supported by any
documents as the Plaintiff says he was paid in cash.
The Plaintiff also gave evidence that form mid-June to mid-October,
he and his two colleagues were paid piece rate of $7,200.00 for the
formwork per floor per block to be shared between the three of them. He
says it took them about 5 to 7 days to complete the same floor level for the
two blocks that they were working on, so that, on an average of 6 days, the
three of them would be sharing some $14,400.00. This works out to be
$4,800.00 for himself for the 6 days or $800.00 per day for himself alone.
He says his total income from this for the period mid-June to mid-October
came to $77,000.00. Again this figure was not supported by any documents
because he was paid in cash.
20
Moreover, the Plaintiff says that for the same period i.e. Mid-June to
mid-October, he would at times also be paid the daily basic wage of $550.00
by the 1st Defendant to carry out formwork maintenance. From this he says
he received a total amount of $11,000.00 which again was not supported by
any documents.
Mr. Chan suggests that I should take these three figures i.e.
$53,100.00, $77,000.00 and $11,000.00 add them up and divide the total by
7 months to determine the average monthly income of the Plaintiff. That
would come to $20,157 per month.
On the other hand, Mr. Pirie suggests that these figures given by the
Plaintiff are so unreliable because they are not supported by any documents
that I should use the basic daily wage of $550.00 and multiply that by 26
days to give $14,300.00. Mr. Pirie submits that this figure is further
supported in that it was the figure adopted in the claim by the Plaintiff for
Employees’ Compensation.
There is no dispute that the basic daily wage of the Plaintiff at the
material time before the accident was $550.00 per day. I accept the
Plaintiff’s evidence that at times he will be paid on piece rate basis for which
he can get a higher rate than his basic daily wage - sometimes as high as
$800.00 per day. However, I do not accept that this will be a regular or
frequent occurrence. Neither do I accept that the Plaintiff will be paid piece
rate and a basic daily wage for the same day. The figures given by the
Plaintiff as his total earnings for the various periods between mid-March to
21
mid-October 1993 are unsupported by documents and I am not disposed to
rely on them. Doing the best I can from the evidence there is before me and
based on my findings as stated above, I find that the Plaintiff’s pre-accident
earnings to be $17,000.00 per month.
Present earnings but for the accident
The Plaintiff has been working as a formwork carpenter since arriving
in Hong Kong in 1979. Therefore chances are that he would have continued
working as one but for the accident. I have been referred to statistics
compiled by the Census and Statistics Department on the Average Daily
Wages of Workers Engaged in Government Building and Construction
Projects. They show that the average daily wages of carpenter and joiner in
October 1997 to be $1,175.90.
Based on this figure, Mr. Chan submits that the Plaintiff would
probably be earning about $1,700.00 per day today when one takes into
account piece rate work also. I do not accept that. The figure of $1,175.90
contained in the statistics is not a figure for basic daily wage but is stated to
be the average daily wages. As such it would have taken into account also
the earnings obtained from piece rate work. Based on this figure of
$1,175.90 I find that the present monthly earnings of the Plaintiff if he had
continued working as a formwork carpenter to be $30,573.40
Sick Leave Certificates
22
The Plaintiff was granted the full 2 year period of sick leave by
various doctors at the Tuen Mun Hospital. All the sick leave certificates
were made the subject of a Hearsay Notice served by the Plaintiff to the
Defendants and there being no challenge to that by the Defendants, these
certificates were admitted into evidence by reason of the Hearsay Notice
without the various doctors being called to give evidence thereof.
At the hearing Mr. Pirie sought to challenge the fact that the Plaintiff
should be granted sick leave for 2 years after the accident. He based his
challenge on the evidence of Dr. Danny Tsoi, called by the Defendants, to
the effect that he was of the opinion the Plaintiff should have been able to
take up some form of employment at the latest by December 1994, some 14
months after the accident.
Dr. Tsoi further tried to explain away the sick leave certificates in this
case by saying that in his previous experience as a Government doctor, when
patients made nuisances of themselves pleading for sick leave to be granted,
doctors would normally take the easy way out by granting sick leave simply
out of convenience. I cannot accept this evidence of Dr. Tsoi as it is a
generalization, not relating directly to the Plaintiff and therefore irrelevant to
the present issues.
If the Defendants had wanted to challenge the length of the sick leave
period granted to the Plaintiff, they should not have allowed these
certificates to be admitted into evidence under the Hearsay Notice and to
23
have cross-examined the doctors who had granted sick leave to the Plaintiff.
In the circumstances, it is not open to them to challenge the sick leave
certificates in the manner that they went about it. Dr. Tsoi not being the
doctor who had issued the sick leave certificates, I would accept the
evidence of the sick leave certificates and prefer that evidence to the opinion
expressed by Dr. Tsoi in that respect.
Loss of Past Earnings
From my findings that the pre-accident earnings of the Plaintiff was
$17,000.00 pr month and his present earnings as a formwork carpenter but
for the accident would have been $30,573.40, I make out that the median for
pre-trial loss of earnings to be $23,786.70. For the first two years
immediately following the accident there would be a total loss of
$570,880.80.
There is also evidence from the Plaintiff that from 18th October 1995
to 14th July 1996 he worked at a construction site as a casual worker at a
daily wage of $350 per day which was later increased to $380 as from 1st
March 1996. He also told the Court that he was dismissed from that job on
14th July 1996 due to slowness in clearing debris because of his injured right
hand. Mr. Chan has helpfully calculated that based on a 26 working day
month, the Plaintiff’s total earnings for this period comes to $83,590.00. In
this respect I accept the Plaintiff’s evidence and Mr. Chan’s calculations.
24
There is also evidence from the Plaintiff that after he was dismissed
from the construction site, he then found work again as a casual worker at
the Chek Lap Kok new airport site. He started work there on 17th July 1996
and has continued working there until now. His initial daily wage was $400
with a $20 meal allowance and a $50 travelling allowance. In December
1996, the daily wage was adjusted to $380 but he received a further daily
allowance of $40. However in May 1997, the travelling allowance was
reduced to $40 per day but the additional allowance was increased to $70.
His wages and allowances were all paid to him by autopay and is shown in
his bank passbook which has been produced into evidence. Again Mr. Chan
has greatly assisted by calculating that his total earnings for the period up to
6th January 1998 less the travellling allowances comes to $224,371.00. I
accept the Plaintiff’s evidence and also Mr. Chan’s calculations in these
respects. I further find that he Plaintiff has done as best he could in the
circumstances in securing these jobs as a casual worker in a construction site
and at Chek Lap Kok.
For the period from mid-October 1995 until trial, the Plaintiff’s loss of
earnings are calculated as follows:-
$23,786.70 x 27 months $642,240.90
less 83,590.00
less 224,371.00
$334,279.90
=========
25
The total pre-trial loss of earnings comes to $905,160.70.
Loss of Future Earnings
Mr. Chan has also added up the Plaintiff’s salary shown in his bank
passbook and after deducting the travelling allowance of $40 per day, the
average of his earnings for the 12 months preceding the trial comes to
$13,052.00. Further it is agreed between the parties that a multiplier of 11
should be used in this case. The multiplicand is calculated as $30,573.00 less
$13,052.00 which comes to $17,521.00
The loss of future earnings I work out to be:-
$17,521 x 11 x 12 $2,312,772.00
less 15% tax liability will give $1,965,856.20
Loss of Earnings Capacity
The Plaintiff seeks also to recover loss of earnings capacity in the sum
of $313, 248.00. This figure represents two years wages at the present rate
of the Plaintiff’s earnings.
In Lau Che Ping v Hoi Kong Ironwares Godown Co. Ltd. [1988] 2
HKLR 650, it was held that an award for loss of future earnings on a partial
basis did not preclude an additional award for loss of earning capacity.
26
Accepting that there is a real risk of the Plaintiff being disadvantaged
in the labour market by reason of his disabilities and taking account of the
fact that he was dismissed in July of 1996 due to that fact, I am,
nevertheless, of the view that the risk is not a great one in this case. In so
saying I have in mind the fact that after the two year sick leave period was
up, the Plaintiff’s evidence was that he found work as a casual worker in a
construction site within a few days’ time. Moreover, after he was dismissed
in July 1996, he was already working at Chek Lap Kok within a few days of
his dismissal.
In the circumstances, I am prepared to accede to Mr. Pirie’s
suggestion that a large award is not called for under this head. I will
therefore adopt Mr. Pirie’s suggestion that an award of $100,000.00 will be
adequate in the circumstances.
Special Damages
The special damages claimed in this case, consisting of $486.00 being
medical expenses, $1,400.00 travelling expenses and $8,514.00 for
nourishing food are not disputed by the Defendants. They total $10,400.00
and will be awarded accordingly.
27
Conclusion
PSLA $400,000.00
Loss of past earnings 905,160.70
Loss of future earnings 1,965,856.20
Loss of earning capacity 100,000.00
Special damages (agreed) 10,400.00
3,318,416.90
Less Employees’ Compensation 455,526.00
$2,925,890.90
==========
There shall be judgment for the Plaintiff against the 1 st Defendant in
the sum of $2,925,890.90. Interest at 2% per annum for pain, suffering and
loss of amenities is awarded from the date of the service of the Writ to the
date of judgment. Interest at 6% per annum from the date of accident,
namely 13th October 1993 to date of judgment in respect of loss of past
earnings and special damages.
The claims against the 2nd and 3rd defendants are dismissed
The Plaintiff will pay to the 2nd and 3rd defendants their costs. The
1st Defendant will pay to the Plaintiff the costs of this action and the
reimbursement for the costs due by the Plaintiff to the 2nd and 3rd
28
Defendants. The Plaintiff’s own costs be taxed under the Legal Aid
Regulations.
This Costs Order shall be nisi at first instance with liberty to either
party to restore for argument on notice given within 14 days of the date of
this judgment.
A. R. Suffiad
Deputy Judge
Court of First Instance
Mr. Samuel Chan, inst’d by D.L.A. for Plaintiff
Mr. Nicholas Pirie, inst’d by M/s Munro Claypole & Reeves for Defendants
29