GURUNG KUL RAJ v. MING TAI CONSTRUCTION ENGINEERING COMPANY LTD AND ANOTHER

DCPI 1228/2021 [2024] HKDC 94 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1228 OF 2021 ------------------------- BETWEEN GURUNG KUL RAJ Plaintiff and MING TAI CONSTRUCTION ENGINEERING COMPANY LIMITED 1st Defendant LEIGHTON-CHINA STATE JOINT VENTURE 2nd Defendant ------------------------- Coram: Deputy District Judge Gary C C Lam in Court Dates of Hearing: 9 and 11 January 2024 Date of Judgment: 15 January 2024 -------------------------- JUDGMENT -------------------------- INTRODUCTION This is a trial in relation to an accident (the “Accident”) causing injury to the plaintiff at a construction site in the vicinity of upper track GL28, Zone 3, UT, GL28 South, EXH, Wanchai, Hong Kong near Wan Chai Ferry Pier, Hong Kong (the “Site”) on 22 January 2020. The plaintiff had commenced EC application in DCEC 161/2021 against the 1st and 2nd defendants (the “EC Application”). Although they deny that the plaintiff was their or its employee at the time of the Accident, by consent order of 2 December 2021, the 1st and 2nd defendants paid HK$354,068 as EC compensation (the “EC Compensation”) to the plaintiff in full and final settlement of that application. I am fully aware that the consent order was reached for settlement purposes, and thus I do not take anything in the consent order as admissions by any parties. The plaintiff acted in person during the trial before me, although he had been legally represented throughout the proceedings until shortly after the trial dates were fixed. The 1st and 2nd defendants are represented by Mr Leon Ho of counsel. FACTUAL BACKGROUND NOT IN DISPUTE The plaintiff is a Nepalese. He was born in Hong Kong in 1971. He went back to Nepal when he was small, and received education in Nepal up to secondary level. He speaks Nepalese, some English and some Cantonese. He started working as a qualified construction site scaffolder and general labourer in 1995. By the time of the Accident on 22 January 2020, he had worked as a scaffolder for 25 years. At the time of the Accident on 22 January 2020, one of his duties was to disassemble metal scaffoldings systems at the Site. Metal scaffoldings systems consist of planking boards with ringlocks, which are to connect onto the scaffoldings so that workers can walk on the planking boards. To disassemble metal scaffoldings systems, a scaffolder cannot work on his own. It is a teamwork – the one at a higher level on one side would pass, by pushing the planking boards (among other components of the scaffoldings system) from the higher level to the one at a lower level on the other side, who would pull the board towards himself, and so on until the bottom level. Thus, the route of the passing of the boards is like a zig-zag. There is a point at which the one at a higher level on one side pushing the board to the one at the lower level would not be able to push the board anymore but have to release it because as he is pushing the board away from him, his arms would not be long enough anymore, and thus the whole weight of the board would be on the one at the lower level. During the Accident, the plaintiff worked at the bottom level, while his co-worker, who was at a higher level, was Mr To Chu Sam (“Mr To”), employed by the 1st defendant. At about 9:40 a.m. that day, Mr To was passing a 4-metre-long planking board to the plaintiff. In receiving the planking board, the plaintiff was injured. Specifically, his right hand was struck by the plank into the ringlock of the scaffolding, and had his right little finger crushed against it. He was sent to A&E of Ruttonjee and Tang Shiu Kin Hospital at 10:21 a.m. According to the medical report compiled by the A&E, he suffered “2 cm laceration over radial aspect at base of right little finger” and “1 cm laceration over ulnar aspect at base of right little finger”. The range of movement of his right little finger, despite the lacerations, was “full”. His sensation was “intact”. Suturing of the wounds was administered and he was discharged the same day. He received further treatments thereafter. As regards the 2nd defendant, it was the principal contractor, to which the 1st defendant was a sub-contractor. PLAINTIFF’S CASE IN RELATION TO LIABILITY According to the plaintiff, he was employed by the 1st defendant during the Accident. When Mr To (employed by the 1st defendant) was passing a 4-metre-long planking board to him, he was looking around the surroundings to see whether there was any obstruction behind him preventing him from pulling the plank safely. According to the plaintiff, while he was doing that, Mr To released the plank suddenly without warning or notifying him, and so, not ready for the release, he only used his fingers to hold the plank. His right hand was struck by the residual momentum of the plank into the ringlock and as a result had his right little finger and arm injured. In his Statement of Claim (prepared with the assistance of his lawyers back then and verified by his Statement of Truth), with which his witness statement is consistent, his complaint was that Mr To dropped off the plank suddenly without warning or notifying him. During his oral evidence, he further explained that Mr To could release the plank only after the plaintiff would give him a signal to do so and Mr To, after receiving the signal, signaled back to the plaintiff that he would release the plank. This oral evidence provides more details about how the plank should be passed, but the essence of the complaint remains that Mr To released the plank without warning or notifying him, whether or not the plaintiff should have given a signal to Mr To in advance. While the plaintiff could have pleaded his case better with such details, I do not think that the plaintiff is barred from supplying such details to explain his pleaded complaint of absence of warning or notification – the defendants are still well informed by the pleadings that the plaintiff’s case is that there was lack of warning or notification. As regards his claim against the 2nd defendant, the plaintiff pleads to those usual particulars of negligence of breaches of duties by a principal contractor like control of the Site. THE 1ST DEFENDANT’S CASE IN RELATION TO LIABILITY According to the 1st defendant, the plaintiff was not employed by the 1st defendant but by the 1st defendant’s subcontractor Kam Shing Construction HK Company Ltd (“Kam Shing”). Before releasing the planking board to the plaintiff, Mr To did warn and inform that plaintiff that he was passing the plank by shouting “be careful”. The 1st defendant further says that even if there was no or no sufficient warning and notification in advance, the plaintiff should have known that Mr To would release the planking board given that Mr To was pushing the planking board towards him and he should have known that Mr To would have to release it when his arms would not be able to extend further, and thus the plaintiff should have held the planking board tightly enough. Therefore, the 1st defendant raises contributory negligence insofar as necessary. THE 2ND DEFENDANT’S CASE IN RELATION TO LIABILITY The 2nd defendant’s case is that even if the 1st defendant was negligent and/or breached its duties thereby causing the Accident, the 2nd defendant is not liable given that as a principal contractor, it does not per se owe any duty to take care of his independent contractor’s employees: see Lui Cho Yin v Lui Kin Bong & others [2021] HKDC 1631 at §28. ISSUES IN RELATION TO LIABILITY Therefore, the issues in relation to liability are:- Whether Mr To warned and notified the plaintiff that he was releasing the planking board; Whether the plaintiff should in any event have known that Mr To was going to release the planking board; Whether the 1st defendant was negligent; Whether the plaintiff was contributorily negligent; and Whether the 2nd defendant should be liable assuming that the 1st defendant is liable. WHETHER MR TO WARNED AND NOTIFIED THE PLAINTIFF THAT HE WAS RELEASING THE PLANKING BOARD Mr To’s evidence is that he shouted “be careful” one or two seconds before he released the planking board. However, “be careful” in my view in context is not sufficient to constitute a warning or notification to the plaintiff that Mr To would release the planking board. The context is this, supported by the plaintiff’s evidence as well as the evidence of Mr Ho Kwok Wai, the foreman employed by the 1st defendant at the Site at the time of the Accident: there should be communication between the worker at the upper level and the worker at the lower level, in that the one at the lower level would have to signal to the one at the upper level that he is ready to receive the planking board, and the one at the upper level would then signal to the one at the lower level that he is releasing the planking board, and only then the board could be released. This way of communication is in my view perfectly not costly at all, and perfectly sensible especially in the light of the possible injuries that could be caused by the weight of planking boards. While Mr Ho tried to belittle the significance of the defendants’ own witness (Mr Ho Kwok Wai)’s evidence as his own opinion, it is important to note that his evidence is entirely consistent with the plaintiff’s in this aspect. I therefore find that at the time of the Accident, the plaintiff did not expect, and would not have expected, that without any warning and notification from Mr To, the planking board would be released. Is there any such warning and notification? One has to answer this question with reference as to whether there was any such communication as described above. There is, however, no evidence of such communication. Indeed, it is not surprising that Mr To’s evidence is not that he shouted “be careful” after he received any signal from the plaintiff, given that Mr To was not a qualified scaffolder and thus was not familiar with how planking boards should be passed. In the absence of such communication, even assuming, without finding, that Mr To did shout out “be careful”, the plaintiff would not understand this to be a warning or notification that Mr To was releasing the planking board. Thus, putting the 1st defendant’s evidence to the highest, there was still no or no sufficient warning and/or notification that Mr To was releasing the planking board. WHETHER THE PLAINTIFF SHOULD IN ANY EVENT HAVE KNOWN THAT MR TO WAS GOING TO RELEASE THE PLANKING BOARD The evidence solicited during the cross-examination of the plaintiff is that the vision was clear, there was no obstruction between Mr To and the plaintiff, and thus the plaintiff should have seen that Mr To kept on passing or pushing the board towards him to the point that Mr To’s arms would not be long enough but Mr To would have to release the planking board. However, the release would be as a matter of split second. When one is working in an expectation that there would be communication as mentioned above, even though he sees the worker at the upper level keeps pushing, and even if he keeps looking at the worker and even the worker’s hands, he would not expect that the worker would keep pushing till a point of releasing without any warning and notification. When he realises that the worker is releasing the planking board in such a way, which is a matter of split second, it would be too late for him already. Thus, in the context that the board should be released upon communication as described above, I do not think it is reasonable to expect the plaintiff to foresee, merely upon a warning “be careful”, that Mr To would release the planking board. Even assuming that Mr To did shout “be careful”, in this context, the plaintiff simply would not have sufficient time to understand this to mean that Mr To would be releasing the planking board the next second or two. Therefore, I find that the plaintiff would in any event not know that Mr To was releasing the planking board. WHETHER THE 1ST DEFENDANT WAS NEGLIGENT The planking board was of significant weight. Releasing it would cause a significant momentum drop. Mr To should have foreseen that releasing it without any or any sufficient warning or notification may reasonably cause the planking board to drop suddenly and hit the plaintiff’s hands or arms. Since Mr To was employed by the 1st defendant, I find that the 1st defendant was vicariously negligent in causing the Accident. WHETHER THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT Upon my finding that the plaintiff would in any event not know that Mr To was releasing the planking board, even if the plaintiff kept his eyes at Mr To, I find that the plaintiff was not contributorily negligent. WHETHER THE 2ND DEFENDANT IS ALSO LIABLE The 1st defendant’s negligence arises from its employee’s negligence, and has nothing to do with the Site. The 2nd defendant does not have any control over the 1st defendant’s employee. I do not see anything that would make the 2nd defendant liable: see Lui Cho Yin v Lui Kin Bong & others, supra, and therefore, I find the 2nd defendant not liable. IRRELEVANT DISPUTES Before I turn to damages, I should mention that there are two factual disputes surfacing during the trial which I think are not helpful in determining liability. However, since those disputes surfaced during the trial, I shall briefly explain why they are unhelpful and make a finding if necessary and possible. The first such dispute is whether the plaintiff was employed by the 1st defendant at the time of the Accident. Whether he was or not, the negligence was Mr To’s and thus the 1st defendant’s. Therefore, whether or not he was the 1st defendant’s employee, the 1st defendant is still negligent. Insofar as necessary, I find that at the time of the Accident, the plaintiff was not employed by the 1st defendant but by Kam Shing. I base my such finding on the contract signed between the plaintiff and Kam Shing (the authenticity of which is not challenged) covering the period including the time of the Accident, the payroll record of the plaintiff produced by Kam Shing covering the period including the time of the Accident, and the Tax Information issued by Inland Revenue Department showing that the plaintiff was employed by Kam Shing at the time of the Accident. The Tax Information does not mention the 1st defendant as the plaintiff’s employer at all. The second such dispute is whether the planking board at the Accident was the first board passed to the plaintiff that day. I only have the say-so evidence of the plaintiff that it was the first, and the say-so evidence of Mr To that there had already been 5-6 boards passed by him to the plaintiff. But in any event, I do not find resolving this dispute helpful – even if it was not the first board, unless the 1st defendant were saying that the previous boards were passed safely without sufficient warning or notification, or that the previous boards were passed safely simply by shouting “be careful”, the issue remains whether the board at the Accident was passed with sufficient warning and notification. However, there simply is no such evidence. Mr To’s evidence stopped at there having been some planking boards already passed, short of any evidence that the previous boards were passed safely without sufficient warning or notification, or that the previous boards were passed safely simply by shouting “be careful”. QUANTUM Now I turn to quantum. Medical conditions As mentioned above, after the Accident, the plaintiff was sent to the A&E of Ruttonjee and Tang Shiu Kin Hospital at 10:21 a.m. According to the medical report compiled by the A&E, he suffered “2 cm laceration over radial aspect at base of right little finger” and “1 cm laceration over ulnar aspect at base of right little finger”. The range of movement of his right little finger, despite the lacerations, was “full”. His sensation was “intact”. Suturing of the wounds was administered and he was discharged the same day. After that, he received physiotherapist treatments, and also had follow-ups in the Orthopaedic and Trauma Clinic (“O&T”) of Queen Elizabeth Hospital (“QEH”) until 24 September 2020. On 27 September 2021, the parties’ orthopaedic experts (Dr Wong Chin Hong (“Dr Wong”) for the plaintiff and Dr Ko Put Shui, Peter (“Dr Ko”) for the 1st and 2nd defendants) conducted a joint examination of the plaintiff. The experts prepared a joint medical report dated 12 October 2021. X-ray of the plaintiff’s hands was taken on the date of the joint examination, that is, 27 September 2021. According to the joint medical report, no significant bony or soft tissue abnormality was found. There are scars in the plaintiff’s right little finger, and “on palpation, there is slight tenderness in the right ulnar distal 2/3 of the forearm border, 4th metacarpal dorsal surface, 5th ray involving dorsal and volar surface, and also on the scars”. The range of motion of his right little finger was found to have been slightly reduced, the active range of motion being 20-100 degrees and passive range of motion being 10-100 degrees. The plaintiff complained of “mild continuous pain at the extensor ulnar border of the right forearm and right little finger” and 50% decrease of sensation “in the ulnar and dorsal surface of right little finger with the whole little finger involvement”. The plaintiff was cross-examined on the joint medical report and the medical records. First, in relation to his complaint of “continuous pain” during the joint medical examination, he was shown his treatment record prepared by the Physiotherapy Ward of QEH, which recorded “0” pain at rest and “intermittent... pain” as of 12 February 2020, contrary to his complaint made during the joint examination about 1.5 years later. When asked to explain such inconsistency, the plaintiff insisted that he told the doctor he had continuous pain but just that the doctor may have misunderstood him. I reject such explanation. The plaintiff, as mentioned above, had been legally represented throughout. I see no reason why the plaintiff would not have pointed out such inconsistency earlier and/or why the plaintiff would not have asked the doctor to clarify the record, if the plaintiff were true. More fundamentally, I see no reason why the doctor would have failed to record the plaintiff’s complaints accurately. I find that the plaintiff exaggerated his pain during the joint examination, and that he has no rest pain and any pain is intermittent only. In this regard, there is another exaggeration. It is his complaint about the pain in his right forearm. When admitted to A&E after the Accident, there was no complaint at all about any pain in his right forearm. The plaintiff explained that in the A&E, his focus was on his little finger, and so he did not mention any pain in his right forearm to the doctor. I reject such explanation. If the pain in his right forearm was still “mild” and “continuous” during the joint examination on 27 September 2021, his pain right after the Accident should be intense enough to cause the plaintiff to tell the doctor about it. Insofar that the plaintiff did complain subsequently to the O&T that he had elbow pain, he was told on 3 September 2020 that it was tennis elbow. In other words, his elbow pain was nothing to do with the Accident. Second, in relation to his 50% decrease of sensation “in the ulnar and dorsal surface of right little finger with the whole little finger involvement”, the Discharge Summary prepared by QEH regarding his discharge on 12 February 2020 from the A&E of QEH recorded “sensation intact”. There is no anatomic explanation for such loss of sensation. Again, when asked to explain such inconsistency, the plaintiff insisted that he told the doctor he had continuous pain but just that the doctor may have misunderstood him. For the same reason as above, I reject such explanation. I find that the plaintiff exaggerated his sensation loss, and that he suffers no loss of sensation at all. The above are not the only exaggerations. During the joint examination on 27 September 2021, during the Jamar grip test, the heaviest his right hand could grip was 10kgf only. However, during the physiotherapist treatment on 16 April 2020 (more than a year earlier), his right-hand grip was recorded to be 14 kgf. When asked about this inconsistency, the plaintiff simply could not offer any good reason. As there is no structural abnormality found, I agree with Dr Wong’s opinion that “the gross reduction in Jamar grip power on right side was likely due to underperformance”. So, I find that he deliberately underperformed. Sick leave The plaintiff was granted sick leave from 22 to 29 January 2020 and 11 February to 30 September 2020. Dr Wong thinks that these periods are justified. Dr Ko opines that the treatment, investigation and rehabilitation received by the plaintiff until “~ July to September 2020” should be adequate, and thus he opines that the sick leave should be granted up to July to September 2020. I must say that Dr Ko’s opinion here is vague – a range of 3 months from “July to September” as a point at which sick leave should end. Further, given that the plaintiff received his last physiotherapy treatment on 24 September 2020, I find that sick leave for the periods as actually granted appropriate. Thus, it is 8 months and 9 days in total. Monthly income While the plaintiff alleges in his Revised Statement of Damages and his witness statement that prior to the Accident, his monthly income on average had been HK$29,900 per month, upon showing the Tax Information provided by the Inland Revenue Department and Kam Shing’s payroll record the accuracy of which the plaintiff does not challenge, the plaintiff revised his evidence in relation to HK$29,900 to be that it was an amount he could have earned if he worked 12 hours per day and 6 days per week. However, as a matter of fact, he did not. According to the Tax Information, for the period of 1 April 2019 to 31 March 2020, he received HK$39,456 from Kam Shing and for the period of 1 April 2019 to 29 August 2019, HK$113,446 from one Oscar Bioenergy Joint Venture. Thus, since 4 months prior to the Accident, the plaintiff’s only income was from Kam Shing. According to the payroll record of Kam Shing as well as the bank records of the plaintiff, for the period of October 2019 to January 2020 (inclusive), the plaintiff received HK$37,556.66 in total. This amount is slightly lower than HK$39,456 shown in the Tax Information mentioned above. The defendants are prepared to adopt HK$39,456, and thus, the pre-accident average monthly income from October 2019 to January 2020 (3 months and 8 days) including MPF should be HK$39,456/(3 + 8/30) x 1.05 = HK$12,682.29. Loss of earnings Therefore, the loss of earnings (including MPF) should be HK$12,682.29 x (8 + 9/30) = HK$105,263.01 Ability to return to work Time and again, the Court has reminded parties that residual problem or pain caused by an injury, or less than 100% fit and efficient for the job, does not necessarily mean that the plaintiff could not return to the previous job: see Chan Sze Yuen v Tin Wo Engineering Company Ltd & others, HCPI 427/2008 at §§16-20; Pak Siu Hin Simon v JV Fitness Ltd, HCPI 574/2014 at §77; Cheung Hon Yu v Chun Lee Engineering Co Ltd & another, HCPI 87/2019 at §§119-122. In the present case, as mentioned above, the range of motion of his right little finger has indeed been slightly reduced. However, he suffers no injury to the bone or the nerves. There is no rest pain and any pain is intermittent only. Such injuries are very minor. Further, the plaintiff’s evidence is not that he has tried to seek a job but has failed; on the contrary, he told this court that he does not want to work and so he has not tried to seek a job. Taking into account the limited reduction in the range of motion of the little finger and the lack of evidence that he has tried but failed to get a job, I find that the plaintiff has since 30 September 2020 (the last day of his sick leave) been able to return to his previous job. Future loss of earnings and loss of earning capacity In the circumstances, I do not award any future loss of earnings and any loss of earning capacity. PSLA The injury was to the plaintiff’s right little finger. There was no structural damage. Suturing was administered at A&E and he was discharged on the same day. The injury he suffered was minor. The sick leave granted was not particularly long. He is able to return to his previous job. Having considered Shabar Rehman v Sunny Success Holdings Ltd [2022] HKDC 1403, Rai Tej Kumar v Fulcrum Engineering & Construction Ltd & another [2020] HKCFI 2097 cited to me by Mr Ho and the cases mentioned in §§51-57 in that case, I find Shabar Rehman v Sunny Success Holdings Ltd, supra bears more resemblance to the present case. Thus, like that case, I think HK$50,000 for PSLA is appropriate here. Special damages While the plaintiff claims in his Revised Statement of Damages HK$10,000 for his medical expenses and HK$5,000 for his travelling expenses, he has not produced any documentary evidence in support, except a payment advice for his A&E charge of HK$180. That said, Mr Ho fairly agrees to an amount of HK$8,000 for special damages. Summary of damages In summary:- Heads of damages HK$ (1) Loss of earnings (including MPF) 105,263.01 (2) Future loss of earnings 0.00 (3) Loss of earning capacity 0.00 (4) PSLA 50,000.00 (5) Special damages 8,000.00 Total: 163,263.01 Deduction of EC compensation As mentioned at the outset, EC Compensation in the amount of HK$354,068 has been paid to the plaintiff. The net effect, after deducting this amount, is that there is no award made to the plaintiff. CONCLUSION Since the plaintiff has failed to obtain the relief he sought, I shall dismiss his action. As regards costs, while the usual rule is costs follow the event, in the present case, I have found in favour of the plaintiff against the 1st defendant on the discrete issue of liability. That said, the defendants made a sanctioned payment of HK$200,000 on 29 July 2021 in the EC Application in addition to the advance payment of HK$154,068, making the total sum exceed the HK$163,263.01 I would otherwise have awarded in the present action. Taking a broad brush approach, I make a costs order nisi that (1) the plaintiff do pay the defendants costs of the action incurred after 26 August 2021 (the date when the sanctioned offer in the EC Application expired), to be taxed if not agreed, with certificate for counsel; and (2) the defendants do pay the plaintiff costs of the action incurred before 26 August 2021, to be taxed if not agreed, with certificate for counsel. ( Gary C C Lam ) Deputy District Judge The plaintiff appeared in person Mr Leon Ho, instructed by Messrs Clyde & Co, for the 1st and 2nd defendants