YEUNG KIN CHUNG JOSEPH v. H.K. SCAFFORM SUPPLIERS LIMITED & H.K. SCAFFRAME SYSTEM LIMITED DCPI 1332/2005

S’s words:-
The issue of liability in this case is quite obvious from my own view. However, the Defendants do suggest one issue for argument, that is, who was/were the tortfeasor(s). This case will be a good case authority for us to rely on and consider in future when we have to consider about “borrowed employee - If a A lends his employee to B for a job and the employee causes damage in the course of doing that job, the question may arise whether the person vicariously liable for the damage is the general employer, A, or whether the employee has become pro hac vice the employee of B, so that B is liable.”
In fact, from my own view, it is free for the Plaintiff in this case to claim either 1st Defendant alone, 2nd Defendant alone or both 1st and 2nd Defendants so long as both the Defendants were properly insured.

For the issue of quantum, this case provides an updated figure regarding PSLA for fractured base of 5th metatarsal right foot (in fact not only the 5th metatarsal right foot but could extend further). From my own view, in fact, the case authority of Lee Sze Wai v. Law Chi Kin DCPI 44 of 2001 with the award of HK$150,000.00 may be in the lower side and thus, it should not be a surprise for the Honourable Court to award a sum of HK$180,000.00 after taking into account of To Ying Wa v. Cargo-land (Warehouse) Development Limited HCPI 441 of 2000. We could face with cases that the plaintiffs suffering from fracture of metatarsal foot, with the assistance of this case, my view is that the parties now have one good case authority to follow.

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Date of Handing Down Judgment : 3 July 2007

The Plaintiff claims against the 2 Defendants for damages due to injuries sustained at an accident while he was working as a metal scaffolder at the warehouse of the 1st and 2nd Defendants in Tai Tong Road, Yuen Long, New Territories (“the warehouse”).

It is not disputed that the 1st Defendant signed a tenancy agreement with the registered owner of the land where the warehouse was situated in Tai Tong Road, Yuen Long, New Territories. The 1st Defendant claimed that the operations and management of the warehouse had been handed over to the 2nd Defendant H.K. Scafframe System Limited.

Liability:-
The evidence of the employer’s return to the Inland Revenue Department clearly showed that Mr. Yeung was employed by the 1st Defendant up to 31st March 2003. According to Mr. Yeung’s evidence he was never informed of a change of employer; at one time, he was asked to sign a self employment agreement, he had refused and rejected it. It was not disputed that on the day of accident Mr. Yeung was working on the 1st Defendant’s project supplying frames to a construction site. From the evidence of Mr. Kam, the shareholder and director of both the 1st and 2nd Defendants, even though he had tried to differentiate the business of the 1st Defendant and the 2nd Defendant, so far as the employees are concerned, the employment record of Mr. Yeung specified he was working for the 1st Defendant up to 31st March 2003. Mr. Kam admitted it was the 2nd Defendant who was on the day of accident the employer the Plaintiff. It is therefore clear the 2nd Defendant cannot escape liability as the employer. On the other hand, the 1st Defendant was the occupier and the tenant of the warehouse and owner of the scaffold frames. Mr. Yeung, though employed by the 2nd Defendant, was put to work for the 1st Defendant, in which case he became an employee on loan to the 1st Defendant on the day of the accident, therefore the 1st Defendant is liable as in the example given in Clerk & Lindsell on Torts, 19th Edition, para. 6-23 at page 332:

“Borrowed employees - If a A lends his employee to B for a job and the employee causes damage in the course of doing that job, the question may arise whether the person vicariously liable for the damage is the general employer, A, or whether the employee has become pro hac vice the employee of B, so that B is liable.”

The author cited the case of Mersey Docks and Harbour Board v Coggins and Griffith [1947] AC1 where the House of Lords held:

“that the harbour authority, as general permanent employer, was liable, not having discharged the heavy burden of proof so as to shift to the stevedores its prima facie responsibility for the negligence of the craneman, who in the manner of his driving was exercising the discretion it had invested in him. It was further held that the question of whether the employer was responsible for his negligence was not determined by any agreement between the habour authority and the stevedores.”

As the 2nd Defendant admitted to be the employer of Mr. Yeung, it is liable as such. As to the 1st Defendant, it being an occupier therefore must be liable under occupier’s liability and further liable under vicarious liability.

As the 2nd Defendant admitted to be the employer of Mr. Yeung, it is liable as such. As to the 1st Defendant, it being an occupier therefore must be liable under occupier’s liability and further liable under vicarious liability.

Quantum - PSLA
Both experts agreed that the Plaintiff suffered from 1% permanent impairment. Dr. Au’s assessment was based on the muscle wasting of the right calf while Dr. Wong’s assessment was based on the residual right foot soreness and weakness after the accident. Dr. Au recommended that the tenderness over the base of the 5th metatarsal on the right foot may improve with 20 sessions of physiotherapy; Dr. Wong did not recommend any further treatments.

Mr. Wong, Counsel for the Defendants, referred me to the case of Lee Sze Wai v. Law Chi Kin DCPI 44 of 2001 where the plaintiff suffered a fractured 2nd metatarsal on the left foot. There was no external wound and no hospitalization and the plaintiff was given 5 weeks sick leave before he returned to work. The plaintiff there suffered from mal residual stiffness of his left ankle. He was awarded $150,000 under PSLA. Mr. Wong submitted that authority to be the closest to the present case. Mr. Wong recommended an award under PSLA of $80,000 only because he considered the $150,000 award in the Lee Sze Wai case to be high compared to other cases where the plaintiffs had suffered more serious injuries. Mr. Lam, Counsel for the Plaintiff, referred me to the case of Chow Tai Loi v. Leung Kam Hung HCPI 320 of 2002, where the plaintiff suffered a fracture of the 2nd metatarsal and a chip fracture of the base of the 1st metatarsal on the left foot with minor injury to his chest. The plaintiff was treated with a soft plaster cast for 3 weeks; subsequently, the chest injury which was minor healed quickly and the foot injury also healed well; but the plaintiff complained of residual pain in the left foot. There was a 2% impairment of the whole person found. The PSLA awarded by Master Jeffries was $225,000.

Mr. Lam further referred to the case of To Ying Wa v. Cargo-land (Warehouse) Development Limited HCPI 441 of 2000, an assessment of damages by Master de Souza on 22nd January 2001. The plaintiff there sustained fractures to his 4th and 5th metatasals in the right foot and had a plaster cast installed. The plaintiff was granted 77 days of sick leave and was assessed to suffer from 1% permanent impairment of the person. Master de Souza awarded $200,000 under PSLA.

Mr. Leung submitted that when compared to the aforesaid cases, the injuries and disabilities of the Plaintiff are similar to the plaintiff in the To Ying Wa case. He submitted $180,000 under PSLA to be appropriate.

After considering the authorities cited to me by both the Plaintiff’s and the Defendants’ counsel, I further take into account the injuries and the pain and loss of amenities suffered by Mr. Yeung and the159 days of sick leave granted to him. The defence accepted Mr. Yeung had sustained a 1% impairment of the whole person and Dr. Au had assessed Mr. Yeung to suffer from a 2% loss of earning capacity. I find Mr. Yeung is entitled to an award under PSLA in the sum of $180,000.

Quantum – Loss of Earning Capacity
The Plaintiff is not claiming any loss of future earnings, he is asking instead for compensation for loss of earning capacity in the sum of $100,000. Mr. Wong submitted that the loss of earning capacity is designed to cover the risk at some future dates during the Plaintiff’s working life if he should lose the employment he has at the time of trial and he would then suffer financial loss because of the disadvantage in the labour market due to his injuries. This is the basis and rationale of the loss of the earning capacity claim in the case of Chan Wai Tong v. Lee Ping Sum [1985] HKLR 176.

I agree with Mr. Wong’s submission that damages for loss of earning capacity should be awarded if the Plaintiff is facing a substantial or real risk that he may lose his present employment before the end of the estimated length of his working life because of the disadvantage in finding comparable employment (Moeliker v Reyrolle & Co. [1977] 1WLR 132) After considering Mr. Yeung’s age, length of his remaining working life, the prejudice in the labour market by reason of his injuries and the prospects of obtaining alternative employment and the potential earnings of the Plaintiff had the accident not occurred, I have come to the conclusion that Mr. Yeung does suffer a loss of earning capacity because of his reduced working efficiency. Mr. Yeung is now 55 years old, he is separated from his wife and living with 3 teenage children who are still in school. Looking at his post-accident employments, it is highly likely that Mr. Yeung would work as long as he can physically afford to do so and bring home income from his labour. Unfortunately, due to the accident, his work efficiency has been reduced which has also placed him in an unfortunate and unfavourable position so far as employment prospects are concerned. I would therefore award the sum of $100,000 for his loss of earning capacity.