Summary

The successful defence of a HK$9 million Hong Kong industrial accident claim is noteworthy from a recent decision handed down by the Court of First Instance in the case of Thapa Hari Bahadur v. Paramount Engineering & Manpower Service Limited and Maeda-China State Joint Venture, HCPI 408 of 2016, the two defendants being direct employer of the plaintiff and principal contractor of the site, respectively. They not only successfully defended the industrial accident claim, but were also awarded indemnity costs of the action – namely all costs, except to the extent they are unreasonably incurred, or an unreasonable amount.

The defence rested on the plaintiff's failure to accurately declare his health condition before commencing his assigned task – and that the employer/contractor had taken reasonable care by having in place a safe system of work. The Court of First Instance accepted this and held that the defendants had discharged reasonable duty of care owed to the plaintiff.

Background

The plaintiff was a compressed air worker in a compression chamber. All compressed air workers are required to complete a daily health declaration questionnaire before work, declaring their body condition and confirming whether they consider themselves fit for work. If a worker reports he is sick or unfit, they are not allowed to work inside a compression chamber.

The plaintiff claimed he was forced to work in the compression chamber when his health condition was unfit for it, saying he did not feel well and was on medication, before fainting and losing consciousness while working.

Despite his signed health declaration questionnaire confirming fitness for work, he alleged that he (i) did not understand contents of or fill in the questionnaire, and (ii) was forced to sign.

He also alleged that as a result of the accident, he suffered decompression illness resulting in serious bodily and psychiatric injuries, leading to medical consultation across 17 types of disciplines over eight years. The plaintiff claimed for damages of over HK$9 million.

The defendant's defence was that the accident was solely caused by the plaintiff's failure to make an accurate declaration in the health declaration questionnaire.

In the questionnaire, the plaintiff answered “No” to questions about the presence of symptoms (such as fever, nose blockage, ear pain, etc.) and “Yes” to questions about his fitness and suitability for compressed air work.

In addition, the defendants cited substantial evidence proving they had properly discharged their duty as employer/principal contractor, notably:

  1. conducted three days’ pre-commencement training on potential risk when working under compressed air and how to self-monitor body condition during work
  2. held ‘tool-box’ talks on site every day
  3. required all compressed air workers to complete a daily questionnaire declaring body condition and confirming fitness for work
  4. prohibited compressed air workers to work if they reported sick or unfit
  5. arranged sufficient manpower (i.e., stand-by workers) to work in chambers

The defendants also challenged the plaintiff’s credibility based on other evidence, including his inconsistent statements as to the accident cause made to the Labour Department and to the Court.

The Judgment

The Court of First Instance accepted the defendants’ evidence entirely and dismissed the plaintiff's case with costs to the defendants on an indemnity basis.

Regarding the cause of the accident, the Court found that the system relied heavily on an employee declaring his own health. The plaintiff's failure to declare his own illness before work was therefore the cause of his alleged injuries.

As to the plaintiff's version of being forced to sign the health declaration questionnaire, the Court found this incredible – not least because the plaintiff had been filling the same declaration every day for four months before the accident, and could answer questions in the questionnaire sensibly. His version of being forced to sign was also found to be contrary to his witness statement, and was illogical given the availability of stand-by workers who could perform the task if the plaintiff could not do so.

The Court held that with training and instructions provided, the work system in place requiring self-declaration of health condition was precisely designed to ensure that unfit workers would not work in compression chambers – so the employer/contractor had not been negligent in causing the accident.

The Court furthermore found the plaintiff a highly incredible and dishonest witness, noting he was evasive and uncooperative when giving evidence under cross-examination by counsel for the defendants. His evidence was also found to be inconsistent and contradicted by indisputable documentary evidence and surveillance evidence.

Conclusion and Takeaway

This Judgment affirms the legal position that the law does not aim at perfection, and the standard of care owed by an employer to its employees is not absolute.

This case also serves as a reminder to employers/insurers that accurate identification of the cause of injury and appropriate use of evidence – such as health declaration questionnaire, task specific training materials and surveillance evidence – can contribute to a successful defence.

The Court’s readiness to order indemnity costs against a malingering plaintiff also sends a strong message that anyone deliberately exaggerating injuries will face serious costs consequences.