LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., LIMITED & HANISON CONSTRUCTION COMPANY LIMITED HCPI 1099/2006

S’s words:-
The Plaintiff himself had decided to take a dangerous way to handle the works assigned to him. However, the Defendants being failed to provide a safe system of works, both parties were negligent and the Plaintiff could only get 50% of the amount awarded due to his 50% contributorily negligent to the accident.

A few things I would like to point out here:-
1. The Judge took the view that erecting scaffolds requires more skills than dismantling.
2. Scaffolding is physically demanding and dangerous work. Much of the scaffolding work is done at great height. With a less than perfect knee, it is demanding too much of the Plaintiff to say that he could return to his pre-accident employment. That explains why the Judge was also convinced that even there was some exaggerating factors involved in this case, scaffolding would no longer be the occupation of the Plaintiff.
3. The Plaintiff’s case for pre-accident earnings was not at all well documented. However, it is accepted that the Plaintiff could have worked for other companies when the 1st defendant did not have work for him. Thus, the Court accepted that the daily pay for a scaffolder like him is $1,000 and finally concluded that the Plaintiff’s average pre-accident earnings was at $16,000 a month.
4. The Defendant’s Counsel adopted a multiplier of 6.5 years and accepted by the Court due to the fact that the Plaintiff is now 47 and would have retired as a scaffolder at 56. Thus, in future, we have to pay attention to the retiring age of scaffolders to be accepted by the Court.
5. Unfortunately, I have no idea why District scale costs was allowed in this case. Did the Court have considered the usual case authority? As I am not the legal representatives of the parties, I do not want to guess the reasons behind.

--- quote from judgment ---

Date of Judgment (Handed Down) : 14 September 2007

This is a claim for damages for personal injury by the Plaintiff who is aged 47. He is a very experienced dismantler of bamboo scaffolding. On 7 May 2003, he was in the employment of the 1st Defendant which is a scaffolding contractor providing services for the erection and dismantling of scaffolding at building sites. On this occasion, the 1st Defendant was the scaffolding contractor at a building site at Tai Wo Hau, Kwai Chung (“the Site”) where Phase 7 of the redevelopment of the Kwai Chung Estate was taking place.

The 2nd Defendant was the principal contractor at the Site and as such responsible for the material and personnel hoists which were in use at the Site which comprised tower blocks of residential flats.

Liability
In this case, I am concerned with the catch fence in the shape of a fan which had been built at first floor level at the base of the material hoist which, as its name suggests, was there to carry building material up and down the tower block as it was being built. The hoist comprised a platform on which the material would be placed and transported to the required level of the tower block. No person was allowed to enter this hoist. It was restricted solely for the movement of materials. There was a separate hoist, with which I am not concerned, for the movement of workmen.

The Plaintiff and his colleague were told by their foreman to go to the building site in order to dismantle the catch fences at the foot of the material hoists at Blocks 4 and 5.

It is convenient to observe at this stage that the occupation of a bamboo scaffolder is a specialised one and also a dangerous one requiring scaffolders to work at great height exposed to the elements on the outside of buildings. In a moment, I will need to make reference to the detailed statutory regulations that govern the training of scaffolders and the methods that need to be employed both in the erection and the dismantling of scaffolds. For present purposes, it is sufficient to note that scaffolders specialise in either erection or dismantling. Erectors are considered the more skilled because this requires more expertise than dismantling.

Although the Plaintiff has no formal training as a scaffolder, in the sense of having undergone an industrial training course, he is someone of very great experience. He has been a scaffolder for over 20 years learning from his Master as he went along. His has been on the job training, watching and doing what his Master told him. Mr Lee who was with him is also experienced, although less so. He has been doing this work for about 7 years.

In fact what happened, according to the Plaintiff and Mr Lee, is that on finding the fan to be drooping they could not safely get onto it and cut the ties working inwards from the outside. The Plaintiff decided that in such circumstances his best option was for him to get into the material hoist and from there to cut the inner-most ties that bound the fan to the structure of the hoist itself. The Plaintiff says that he assumed that the material hoist was not in use. Nobody was about and the hoist operator was nowhere to be seen.

It seems to me that these considerations are entirely applicable to the facts of this case and they apply to both Defendants. The fact is that no system of work had been laid out for these two men, let alone anything that approached a safe one. Given his vast experience the Plaintiff had, it seems to me, developed this system whereby he would get into the hoist frame and, relatively speaking, quickly snip the fan off in one piece from the hoist frame. The dismantling would then be done on the ground. It was quick. Unfortunately, it also produced a set of circumstances that resulted in an accident waiting to happen which is what occurred on this occasion. Had the 1st Defendant and the 2nd Defendant, as the principal contractor, seen to it that the Code of Practice was adhered to this would not have happened. A method would have been devised to dismantle the fan by cutting the ties from outside the hoist by use of a working platform, as was eventually done after the accident, in combination perhaps with a knife attached to a bamboo pole to reach up where necessary. The process would undoubtedly have been a longer one but it would have been a safe one. I find both Defendants liable in the ways pleaded against them in the Statement of Claim. This being the case, I now need to decide whether the Plaintiff ought to suffer a reduction in his damages by virtue of any negligence on his part in going into the hoist frame.

The factual basis for this relates to the Plaintiff having entered the hoist frame without jamming the door open and having put up a warning sign to the effect that work was in progress in the hoist frame. The Plaintiff and Mr Lee say that they had cordoned off the area with a couple of pedestrian barriers but in my judgment that was wholly insufficient. It strikes me that in approaching the issue “by way of an overall appreciation of [the Plaintiff’s] blameworthiness, taken with the causative potency of whatever he did” that he must bear half the blame for what happened to him. There must therefore be a 50% discount for contributory negligence. It really was asking for trouble to do what he did notwithstanding the Defendants’ failure to provide any safe system of work. I am afraid that the Plaintiff must have realised the risk that he was running and despite it all decided to take it simply because this was the quick way of doing things.

Quantum
Even on the evidence of the film, I do not believe that the Plaintiff could safely return to scaffolding. This is physically demanding and dangerous work. The job that he was doing when he was injured was dismantling at its most basic and as close as one could get to ground level. Much of this work is done at great height. With a less than perfect knee, it is demanding too much of the Plaintiff to say that he could return to his pre-accident employment. I appreciate that he was seen entering a building site on an isolated occasion and although his explanation of collecting back wages that pre-dated the accident is very suspicious, I am unable to say that he can work on building sites on what is a paucity of evidence. Had he been followed for more days and seen entering building sites repeatedly then that might have suggested a different conclusion.

I have been shown a Government generated list of jobs and pay. I would have thought that these days the Plaintiff, who can more probably than not, read to a basic level could work as a waiter, delivery man or general worker and on the statistical evidence command a salary of, doing my best, $7,500 a month which will be the basis of my assessment.

Loss of Earnings
I must first determine his pre-accident earnings. He says it was $22,000 a month although originally claimed at $17,000. The average from the 1st Defendant for the previous 12 months was $10,363. The Plaintiff’s case is not at all well documented but it would be doing him an injustice to restrict him to the documentary evidence. I accept that he worked for other companies when the 1st defendant did not have work for him. The daily pay for a scaffolder like him is $1,000. This I accept. I am afraid I must do my best on sparse evidence. I accept that some employers will keep better records than others. I propose, doing my best, to assess his average pre-accident earnings at $16,000 a month and this figure will also form the basis of my assessment.

Future Loss of Earnings
The multiplicand will be $8,500. Mr Lim’s multiplier of 6.5 years is correct given that the Plaintiff is now 47 and would have retired as a scaffolder at 56. The resulting total is $663,000 being $8,500 x 12 months x 6.5 years. To this I propose to add 5% for the employer’s MPF contribution which is $33,150. The total for future loss of earnings will therefore be $696,150.

I have fully compensated him for future loss of earnings and where I am content to say that he will not struggle in his alternative future employments, I propose a modest amount of $30,000.

There will be an order nisi that costs will be to the Plaintiff on the District Court Scale together with legal aid taxation of his costs.