Lee Yam Kan v. Ng Pui Kuen t/a Wing Sing Scaffolding Engineering and Another
Read the full judgment text of HCPI 196/2014 on BabelCite. This High Court CFI judgment was delivered on 15 March 2016.
1. The plaintiff, Lee Yam Kan (“Lee”), claims damages for personal injuries that he suffered as a result of an industrial accident (“the Accident”) that took place on 21 March 2011 at 1 & 2 Serenity Path, Sai Kung, New Territories, Hong Kong (“the Site”). He claims against the 1 st defendant, Ng Pu Kuen trading as Wing Sing Scaffolding Engineering (“Ng”), and the 2 nd defendant, Wai Tat Foundation & Engineering Ltd (“Wai Tat”), in negligence, for breach of the common duty of care under the Occup
Cited by 15 cases · Cites 28 cases
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HCPI 196/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 196 of 2014 __________________
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__________________ J U D G M E N T __________________ Table of Contents A. INTRODUCTION B. LIABILITY
C. QUANTUM
D. CONCLUSION A. INTRODUCTION 1.The plaintiff, Lee Yam Kan (“Lee”), claims damages for personal injuries that he suffered as a result of an industrial accident (“the Accident”) that took place on 21 March 2011 at 1 & 2 Serenity Path, Sai Kung, New Territories, Hong Kong (“the Site”). He claims against the 1st defendant, Ng Pu Kuen trading as Wing Sing Scaffolding Engineering (“Ng”), and the 2nd defendant, Wai Tat Foundation & Engineering Ltd (“Wai Tat”), in negligence, for breach of the common duty of care under the Occupiers Liability Ordinance (Cap 314) (“OLO”) and/or breach of statutory duties and/or breach of the contract of employment. 2.It is not in dispute that, at the material time:
3.Both liability and quantum are in issue:
B. LIABILITY B1. The criminal convictions of Ng and Wai Tat 4.To begin with, I shall refer to the criminal convictions of Ng and Wai Tat. 5.Ng was charged with and convicted at the Kwun Tong Magistrates’ Court on 14 October 2011 of the following offences — being a contractor who had direct control over the Site:
6.Wai Tat was charged with and convicted of the following offences on the same occasion — being the contractor responsible for the Site:
7.In the Brief Facts, §5 stated that:
8.As stated in §6 of the Brief Facts, House C was located at a higher level than House B on a slope. Hence, the top of the Fence Wall was 1.2m from the ground in House C, and was 2.4m from the ground in House B. The top of the Fence Wall was 15cm wide. 9.In relation to the charges concerning failure to provide safe access to work, the Brief Facts stated that:
10.In relation to the charges concerning failure to prevent a person from falling from a height of 2m or more, the Brief Facts stated that:
11.At the hearing before the magistrate on 14 October 2011, Ng appeared in person whereas Ms Li Siu Ling (“Li”), a secretary and representative of Wai Tat, appeared without legal representation. Both of them agreed to the Brief Facts and pleaded guilty to the charges. 12.Pursuant to section 62 of the Evidence Ordinance (Cap 8), the said convictions are admissible evidence in these proceedings. Section 62(1) provides that in any civil proceedings the fact that a person has been convicted of an offence by or before any court in Hong Kong shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence. Section 62(2)(a) provides further that in any civil proceedings in which by virtue of that section a person is proved to have been convicted of an offence by or before any court in Hong Kong, he shall be taken to have committed that offence unless the contrary is proved. Section 62(2)(b) provides that without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complainant, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose. The documents referred to in the statute would include the Brief Facts mentioned above. 13.It is not in dispute that, in law:
These well established principles were set out in Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui v Man Cheuk Ming & another, HCPI 584/1996 (10 March 1997, unreported), pp 4–5; Tamang, Tikaram v Tong Kee Company Ltd & others, HCPI 19/2013 (1 April 2015, unreported), §17; and Tsang Chiu Yip v Ho Kwok Leung, HCPI 305/2013 (29 February 2016, unreported), §18. 14.In Lam Yin Mee & another v Lau Wan & others [1985] 2 HKC 437 at 440I–441B, Rhind J held that:
In Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui v Man Cheuk Ming & another, HCPI 584/1996 (10 March 1997, unreported), p 4, Cheung J (as he then was) held that:
15.Although both judgments were concerned with traffic accident cases, the remarks made by the learned judges are equally applicable to industrial accident cases. In an industrial accident case where the defendant has been convicted of breaching statutory duties, it is essential for those advising the defendant to consider the legal implications of the conviction carefully before deciding whether to contest liability. As I shall explain further below, a criminal conviction for breach of statutory duties is also highly relevant to the issue of contributory negligence. 16.I shall now turn to the primary factual issue on liability, namely, how the Accident happened. B2. How the Accident happened 17.Lee said that he started to work as a scaffolder in about 1991 and he had been working for Ng for about 20 years before the Accident. 18.Lee’s evidence as to how the Accident happened may be summarized as follows:
19.The defendants’ case is that Lee fell from the bamboo scaffold erected along the external wall of House B facing the Fence Wall because he had not used the safety harness. 20.Having considered all relevant evidence, I have come to the conclusion that Lee’s version should be preferred. I shall explain why. 21.To begin with, there was no eye‑witness seeing how Lee fell. In other words, the defendants do not have any direct evidence to support their case, or to contradict Lee’s evidence. Although Ah Fai was also working at the external wall of House B facing the Fence Wall, Ah Fai admitted that he did not see how Lee fell. He only went to help Lee after hearing that Lee had fallen. Lai Ngok Chung (“Lai”) was a worker employed by Jun Sheng working in the Site at that time. He did not see how Lee fell. However, he recalled that, after the Accident, at the scene, someone said that Lee fell from the scaffold. He also saw that there was a broken bamboo pole on the scaffold. However, he did not know the person who said so. His hearsay evidence is unreliable as the source cannot be identified. As there is no evidence that anyone had actually seen how Lee fell, it is difficult to understand how anyone can say reliably that Lee fell from the bamboo scaffold. 22.Leung, who was not present at the Site on the day of the Accident, said that Lee’s version was so unreasonable that it was impossible. Lee was also cross examined extensively in this respect. The defendants’ main points may be summarized as follows:
23.These points made by the defendants suggest that it was unnecessary and unreasonable for Lee to transfer the bamboo poles from House B to House C, and to climb onto the Fence Wall in order to carry out such task. However, I am not convinced that they are sufficient to prove that Lee did not actually act in the way he described. Having said that, as I will consider below, these points are relevant in considering whether Lee was contributory negligent. 24.If one considers inherent probability, there is a material point against the defendants as pointed out by Mr Poon. It is not in dispute that Lee fell on the ground between the Fence Wall and House C. If, as the defendants alleged, Lee fell from the bamboo scaffold along the external wall of House B, it was much more likely that he would have fallen onto the ground between the Fence Wall and House B instead. 25.As there was no eye‑witness to the Accident, it is pertinent to consider how Lee described the Accident to third parties after the event, and whether what he said is consistent with his present evidence. 26.After the Accident, Lee was admitted to the Accident and Emergency Department (“AED”) of the United Christian Hospital (“UCH”) at about 11:55am. The report of the AED of UCH stated that he fell from a height of 10 feet at 11am. The subsequent medical notes also stated that he fell from 3m high. It was possible that the subsequent medical notes merely repeated what Lee told the doctors when he was first admitted. It seems unlikely that the doctors would have asked him how he fell on each and every occasion. Nevertheless, Ms Bu submitted that such records are consistent with the defendants’ case that Lee fell from the scaffold; and is inconsistent with Lee’s case that he fell from the side of the Fence Wall which was only about 1.2m high. Lee explained that when he was asked by the doctors the height from which he fell, as he was in pain, he answered that he fell from a height one side of which was about 9 to 10 feet high whereas the other side was lower. In other words, the doctors had misunderstood what he said. However, he did not find it necessary to correct the mistake in the medical notes. I accept his explanations on this point. Further, the medical notes were not intended to and did not contain a detailed description of the Accident. It was not the duty of the doctors to ascertain how the Accident happened. It is also unclear how much time was spent on this question and what exactly had been said between the doctors and Lee. In the circumstances, there was a real possibility of miscommunications between Lee and the doctors. I am not prepared to reject Lee’s evidence because of the said inconsistency in the medical records. 27.What I consider to be much more significant is Ng’s evidence given in court that, after the Accident, she went to the hospital to visit Lee in the afternoon at about 2 – 3pm on the same day. Lee told her that he fell from the Fence Wall. She then informed Leung of what Lee had told her. Based on what Ng said, Leung then prepared a handwritten note dated 21 March 2011 (ie the date of the Accident) describing how the Accident happened. It stated that while Lee was transferring bamboo poles to another house whilst standing on a fence wall, he slipped and fell; but the fence wall was only about 4 feet high. This document was then passed to Li. In reliance on that handwritten note, Li then prepared a Form 2 dated 28 March 2011 in which it was stated that Lee fell from a fence wall which was about 4 feet high. 28.It is significant that Lee described the Accident in the same manner as he told this court to his boss very shortly after the Accident. It is also significant that although Leung was adamant that Lee’s version was impossible, and that he had some suspicious about what Lee said at the time when he prepared the handwritten note, apparently, he was prepared to accept Lee’s version at that time. 29.The criminal prosecutions mentioned above were brought as a result of the investigations done by the Labour Department. In the course of such investigations, Lee made three statements to the Labour Department dated 27 June 2011, 7 July 2011 and 1 September 2011. In his last statement, he stated that the inner layer of the scaffold at the external wall of House B facing the Fence Wall had been completed before the Accident. This was inconsistent with his evidence in court that Ah Fai had not yet completed erecting part of the inner layer of the scaffolds. He admitted that what he stated in the Labour Department statement was incorrect. I take the view that such inconstancy does not render his present evidence incredible. The way he described the Accident to the Labour Department was, in substance, the same as his present evidence. 30.The defendants claimed that the convictions are not reliable because they pleaded guilty before they learnt the truth (ie Lee fell from the scaffold, not the Fence Wall). It is necessary to consider in more detail why they decided to plead guilty to the criminal charges. Ng said that it would be troublesome to deny the charges, and only a small fine would be imposed. She also said that the criminal convictions would not have any material impact on a small sub‑contractor like her. Li said that she was instructed by her boss, Mr Yip Shiu Ching (a director of Wai Tat), to plead guilty. She did not know why her boss decided to do so, but she also mentioned that only a small fine would be imposed. 31.In short, both defendants alleged that they pleaded guilty out of convenience only. In fact, Ng was fined a total sum of $23,000 only, and Wai Tat was fined a total sum of $20,000 only. Although I am prepared to accept that practical convenience may well be one of the reasons why they pleaded guilty, I do not believe that this was the only reason. It appears to me that another material reason was that, at that time, they did not have any serious doubt or suspicion about Lee’s version of the Accident, and they believed Lee. 32.It is also noteworthy that the defendants only put forward their version of the Accident for the first time when they filed their defence in this case on 19 December 2014. This was about three years and nine months after the Accident. I have a distinct impression that their present version was an afterthought after Lee commenced these proceedings against them. 33.For the above reasons, on a balance of probabilities, I believe that the Accident happened in the manner as described by Lee. B3. Liability of the defendants
34.The defendants have not disputed that breach of statutory duties under the CSSR would give rise to civil liability. As mentioned, in the light of the criminal convictions, the legal burden is on the defendants to prove on a balance of probabilities that they had not committed any breach of the statutory duties under the CSSR. Since I have decided to accept Lee’s evidence as to how the Accident happened, and I have rejected the suggestion that the defendants pleaded guilty to the criminal charges out of convenience only, the burden on the defendants has become even more onerous. 35.The Labour Department explained in detail in an Accident Report dated 6 September 2011 why it took the view that the defendants had breached the statutory duties under the CSSR. Apparently, the criminal prosecutions were commenced as a result of the Accident Report. Although I am not bound by the opinions of the Labour Department, I agree with them. 36.In section 5 of the Accident Report, the Labour Department observed, inter alia, that:
37.In section 6 of the Accident Report, the Labour Department recommended that:
38.In the circumstances, it is clear to me that that the defendants have failed to discharge the burden on them; and I hold that both of them had breached the statutory duties under the CSSR. 39.Ms Bu submitted that even if the defendants were guilty of breaching statutory duties, such breach did not cause the Accident and the injuries suffered by Lee as a result. As held by Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663 (cited by Ms Bu) at 681, the question of causation must be determined by applying common sense to the facts of each particular case. It is also well established that, in order to prove causation, it is sufficient to show that the defendant’s breach of duty was one of the causes or a material contributing factor to the loss suffered by the plaintiff; it does not need to be the dominant, let alone the sole, cause. Applying these principles, I have no difficulty in coming to the conclusion that the defendants’ breach of statutory duties caused the loss and damage suffered by Lee as a result of the Accident. 40.Mr Poon also submitted that the defendants had breached section 6 of the Occupational Safety and Health Ordinance (Cap 509) (“OSHO”). However, as Fok JA (as he then was) observed in Rashad Muhammad v Gurung Amrit Singh trading as Fewa Co & another, CACV 165/2010 (8 July 2011, unreported), §33, these obligations in the OSHO are co‑extensive with the employer’s common law duty of care and, to that extent, add nothing in the context of an action for damages for personal injuries arising out of an accident to an employee in the context of his employment. 41.Although it is strictly speaking unnecessary to consider the other causes of action relied on by Lee, in view of the detailed submissions made by counsel, I shall set out my views below.
42.Mr Poon submitted that Ng had breached her duty as the employer of Lee under the common law or the contract of employment. He submitted that Ng had failed to provide any safe system of work, any warning of the risk of standing on the Fence Wall, any supervision, any assistance, or any suitable equipment or appliance, etc. 43.On the other hand, Ms Bu stressed that Lee was a very experienced worker; it was not reasonably expected that Lee would climb onto and stand on the Fence Wall to carry out any work; and in any event, the risk of doing so was obvious. She also pointed out that assistance would have been available (in particular, by Ah Fai) but Lee had not asked for any such assistance. 44.Both Mr Poon and Ms Bu have referred me to numerous authorities concerning the employer’s duty under the common law. It is pertinent for me to review the general principles. 45.First, I agree that the court should not be too paternalistic; and should not treat employees as kindergarten pupils. In Ng Tim Yip Kevin v Chan Ho Kin, CACV 285/2007 (23 October 2008, unreported), Chung J held in §47 that:
And as Suffiad J held in Lam Ka Lok Louis v Swire Properties Management Ltd, HCPI 914/2003 (30 April 2005, unreported), §39:
46.Second, I also agree that the law does not aim at perfection; and the court must be cautious in considering the matter with the benefit of hindsight. Recorder Edward Chan SC said in Ng Kong v Golden Caterers Ltd, HCPI 206/2004 (3 February 2005, unreported), §24:
47.However, it is crucial to bear in mind that, although an employer is only obliged to act reasonably (but not perfectly), the standard of care is a high one. In Cathay Pacific Airways Ltd v Wong Sau Lai [2006] 2 HKLRD 586 at 589J–590A, §1, Bokhary PJ reaffirmed that:
In practice, and in most cases, the loss and damage caused by a breach of employer’s duty cannot be adequately and fully compensated by monetary damages. 48.It is also important to bear in mind that the employer’s duty is primary and non‑delegable. No matter how experienced the employee is, the employee cannot be left to decide for himself how he should carry out his work and how to do it safely. In Ho Foon Cheung v Shun Yip Engineering Co Ltd, CACV 33/2011 (8 November 2011, unreported), §17, Tang VP (as he then was) cited the following judgment of Lord Oaksey in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189–190:
Tang VP (as he then was) then held in §18 that:
49.In my view, the most balanced statements of the legal principles can be found in Winter v Cardiff Rural District Council [1950] 1 All ER 819 at pp 822–823, where Lord Oaksey held that:
50.In the very recent judgment in Kennedy v Cordia (Services) LLP [2016] UKSC 6, the United Kingdom Supreme Court reviewed the principles concerning employers’ liability at common law. In §109, it reaffirmed that “the ruling principle was that an employer was bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to that principle”. 51.The United Kingdom Supreme Court then went on to hold that:
52.What Lord Mance said in Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 WLR 1003, §9 is that:
53.Returning to the facts of this case, and applying the above legal principles, I have no hesitation in holding that Ng had breached her duty as employer, and that such breach caused the loss and damage suffered by Lee:
54.I accept that it was probably not within the contemplation of Ng, as well as Leung, that a worker would climb onto and stand on the Fence Wall. However, this is quite beside the point. The danger of requiring an employee to devise a working method for himself is precisely that, because of convenience, the desire to get on with his work, the eagerness to complete the work as soon as possible, over‑confidence or other reasons, the employee may overlook some risks of injury and adopt a working method involving risks of injury that few people would seriously think about in advance. The law requires the employer to give positive thoughts and adopt a proactive approach to protect the personal safety of his employees who are prone to act carelessly.
55.As to the claim for breach of occupiers’ duty, the defendants admit that they were occupiers of the Site at the material time. Section 3(1) of the OLO provides that an occupier of premises owes a “common duty of care” to all his visitors. Section 3(2) in turn defines the “common duty of care” as “a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. The standard of care is one of reasonableness. Wai Tat has not argued that it should be absolved from occupier’s liability because it had sub‑contracted the work to an independent contractor, namely Ng (see section 3(4)(b) of the OLO). For reasons stated above, there is no doubt that the defendants had breached the common duty of care as occupiers, and that such breach caused the loss and damage suffered by Lee . 56.Again, for the same reasons stated above, the defendants must also be liable in negligence. B4. Contributory negligence 57.The defendants claim that, even if they were liable, Lee was contributory negligent. The burden of proof is on the defendants to prove that Lee, by his own negligence, contributed to the damage which he suffered (Fitzgerald v Lane [1989] AC 328 at 338H). Under the common law, the word “negligence” is used in the sense of careless conduct rather than in its sense of breach of duty; it connotes a failure by the plaintiff to use reasonable care for his safety (Charlesworth & Percy on Negligence (13th edn, 2014), §4‑03 at p 242). 58.The evidence relevant to this issue may be summarized as follows:
59.The first question that I need to consider is whether I should find Lee contributory negligent at all. 60.Mr Poon submitted that Lee was instructed to do the work by his employer; he did what his employer told him to do; and one cannot impute contributory negligence on him when he was just following his employer’s instructions (eg Chow Po v Chow Hau Man trading as Nice Year Metal Co, DCPI 2594/2007 (8 March 2010, unreported), §7 where HH Judge Chow cited Wong Kwun Sang v Yiu Woon Ming & others, HCPI 633/2004 (28 November 2006, unreported); Lam Fung Ying & another v Lui Kwok Fu, HCPI 826/2002 (26 February 2004, unreported), §58). 61.I do not think these cases purported to lay down any rigid rule. Each case must depend on its own facts. If an employer instructed his employee to do his work in a specific manner, and the employee suffered injury by following the instruction, it would be utmost unfair to put any blame on the employee. However, in this case, while Lee had been instructed to carry out scaffolding works in the Site, he had not been instructed specifically to climb onto and stand on the Fence Wall to carry out any work at all. 62.I am aware that, generally speaking, the court would be slow to hold an employee contributory negligent if he merely wanted to get on with his work. In Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716, 721F, McNair J held that:
63.In this case, I accept that Lee chose to adopt his working method in order to get on with his employer’s business in the belief that his boss would be unhappy if the unused or unnecessary bamboo poles were not removed from House B. However, he admitted that there were other options open to him. This was not a case where an employee had no real option but was forced to adopt an unsafe working method. Lee chose his own method because the other options were more inconvenient, troublesome and time‑consuming. In this sense, it can be said that he adopted his working method in order to save himself some troubles. 64.I am also aware that a distinction has been drawn between “momentary inadvertence” and “conscious acceptance of risk”. In Ng Tim Yip Kevin v Chan Ho Kin, CACV 285/2007 (23 October 2008, unreported), Chung J cited the following extract in the old edition in Charlesworth & Percy at §52:
This passage was approved in Wong Tang Keung v Lee Wai Engineering Co Ltd & another [2013] 4 HKLRD 150, §15. 65.In practice, it may not be easy to draw the line between “momentary inadvertence” and “conscious acceptance of risk”. I agree that, in this case, the decision to adopt the said working method was probably not a decision made by Lee after mature and careful consideration. However, on his own estimate, he would have to spend about 10 minutes standing on the Fence Wall in order to complete the task. He clearly saw and knew that there was no guard rail on the Fence Wall. He clearly saw and knew that the top of the Fence Wall was about 2.4m from the ground on one side, and about 1.2m from the ground on the other side. The possibility of falling from the Fence Wall to either side should have been obvious to Lee, or any reasonable worker in his position. I am unable to accept that this was a case of “momentary inadvertence”. 66.I take the view that Lee was contributory negligent and should bear some responsibility. The next, and more difficult, question is to assess the degree of his contributory negligence. To assist me in deciding on this question, I seek guidance from the relevant legal principles. 67.Section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) (“LAR(C)O”) provides that:
68.In considering what is “just and equitable” in a particular case, the Hong Kong court has consistently held that the court shall consider both causation and blameworthiness (eg Fong Chi Leung v World Wide Stationery Manufacturing Co Ltd, CACV 48/1992 (8 July 1992, unreported), p 9). The correctness of this principle was reaffirmed by the United Kingdom Supreme Court in Jackson v Murray & another [2015] UKSC 5 at §20 where it considered section 1(1) of the Law Reform (Contributory Negligence) Act 1945 (which is identical to section 21(1) of LAR(C)O):
69.In Jackson v Murray & another [2015] UKSC 5, Lord Reed held that:
70.The difficulty of the apportionment exercise is highlighted by the outcome in that case. Lady Hale and Lord Carnwath agreed with Lord Reed, and they allowed the appeal. However, Lord Hodge and Lord Wilson disagreed. Lord Hodge (in his dissenting judgment) held at §50:
He then referred to the following general principle concerning a traffic accident case involving a driver and a pedestrian:
71.While each case must depend on its own facts, in the context of industrial accidents, there are general principles relevant to the apportionment exercise. 72.Ms Bu referred to So Chung Kwong v Ho Kuen & another [2000] 3 HKLRD 241 at 249F–I where Deputy Judge Gill held that:
73.I take the view that I should take into account the following factors:
74.Ms Bu made the bold submission that Lee should be held 100% contributory negligent. She relied on what the authors of Charlesworth & Percy on Negligence (13th edn, 2014) state in §4‑67 at p 266:
75.As a matter of principle, I note that in Fong Chi Leung v World Wide Stationery Manufacturing Co Ltd, CACV 48/1992 (8 July 1992, unreported), Mortimer J (as he then was) held at p 5 that “100% contributory negligence may be wrong in principle”. In Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000] 2 HKC 365 at 374D–I, Keith JA observed that there is a theoretical difficulty with assessing contributing negligence at 100%, but the Court of Appeal did not find it necessary to decide whether contributory negligence can ever be assessed at 100% on the facts of that case. Likewise, in this case, it is necessary for me to consider this interesting legal question. This is because, firstly, the factors that I have considered above would not support the extreme conclusion of 100% contributory negligence. Secondly, Ms Bu seems to have ignored an important principle in the present context. That important principle is concerned with the implication of a finding of breach of statutory duty on apportionment. 76.In Mak Woon King & another v Wong Chiu [2000] 2 HKLRD 295 at 302D–F, Ribeiro JA (as he then was) held that:
77.Although I take the view that Lee was contributory negligent, this principle operates to lessen the percentage by which the award should be reduced. The principle is based on the sound policy reasons that the object of the statutory duties should not be defeated by imposing too strict a standard of care on the employee, and that the court must be careful not to emasculate the statutory duties by the side‑wind of apportionment. I also take the view that this principle impacts on both causation and blameworthiness in the following way. On causation, although the immediate cause of the injury suffered by Lee was his fall from the Fence Wall which was due to his decision to climb onto and stand onto the Fence Wall, it must be recognized that but for the defendants’ breach of statutory duties in the first place, Lee would not have climbed onto the Fence Wall. As to blameworthiness, the defendants’ breach of statutory duties, and their criminal convictions for such breaches, support that they were much more blameworthy than Lee. 78.Mr Poon submitted that the degree of Lee’s contributory negligence (if any) should be 10% only. Ms Bu’s alternative case, as stated in her opening submissions, is that Lee should be held 50% contributory negligent. Having regard to all relevant circumstances and applying the above‑mentioned legal principles, I have come to the view that Lee should bear 30% responsibility. I must confess that this figure is based on my overall impression, and is incapable of detailed elaboration. B5. Summary on liability 79.For the above reasons, I hold that both defendants were liable, but Lee was 30% contributory negligent. C. QUANTUM C1. Injuries, treatments and disabilities 80.Lee was born on 23 March 1960. He was 50 years old at the time of the Accident, and is now 55 years old. 81.After the Accident, Lee was admitted to the AED of UCH. He was later transferred to the Orthopaedics & Traumatology Department of UCH. Examinations showed that he suffered an acute partial collapse L1 and bilateral fractured calcaneum. 82.On 25 March 2011, he underwent an open reduction and internal fixation of his bilateral fractured calcaneum. On the other hand, the collapse L1 was treated conservatively by a thoraco‑lumbar‑sacral orthosis. 83.He was hospitalized for 18 days from 21 March 2011 to 7 April 2011. 84.Between 8 April 2011 and 27 April 2011, the nurse of Our Lady of Maryknoll Hospital attended Lee’s home for medical treatments six times. 85.He received physiotherapy from 15 June 2011 to 14 February 2012 for a total of 46 sessions; and occupational therapy from 23 September 2011 to 16 February 2012 for a total of 33 sessions. 86.He also attended follow‑up consultations at the Orthopaedic clinic of UCH. It appears that he started to attend the Common Mental Disorder Clinic at the East Kowloon Psychiatric Centre (“EKPC”) regularly since about late May 2012. 87.He was granted sick leave intermittently for a total of 477 days from 21 March 2011 to 9 July 2012. 88.On 14 April 2015, Lee attended a joint medical examination by two orthopaedic experts, namely, Dr Fu Wai Kee (“Dr Fu”) appointed by him, and Dr Tsoi Chi Wah Danny (“Dr Tsoi”) appointed by the defendants. They made a joint report dated 2 June 2015. 89.Lee complained of both heels pain and lower limb weakness: the right side was more painful than the left side; the pain was more severe in early morning, start of walking, around sleep time and weather change; the pain was aggravated by walking for 45 minutes; he woke up every night due to pain; he had difficulty in walking down stairs, and could not walk fast. He also complained of low back pain: the pain was aggravated by sitting for 10 minutes and was more severe during weather change; he needed stretching exercise to relieve his pain. As to his activities of daily living, he said that self‑care and hygiene were largely independent; he could go out alone but he avoided walking stairs and slopes. 90.Physical examination showed that he walked with normal gait; he could stand on his left foot alone but he had poor balance when standing on his right foot; he could not perform tip‑toe/heel walking on both sides; but he could squat. The power of his left ankle was full whereas the power of his right ankle was slightly reduced. The range of movement of the right ankle was also poorer than that of the left ankle. The toes and knees were full on power and range of movement. X‑ray of both ankles showed that the fracture united well with normal ankle alignment but there were degenerative changes in the subtalar joint of the right ankle. As to his back, there was tenderness over mid‑line L1 level and bilateral paraspinal muscles. X‑ray of the lumbar spine showed 20% collapse upper end plate of L1, mild kyphosis and mild degenerative changes. 91.Dr Fu opined that for this type of injury, patients usually will have residual pain and stiffness even after a long course of physiotherapy. He believed that Lee’s back and lower back impairments would persist, and that he would need medical treatment on a need‑to basis; he would also have some difficulty in climbing, squatting and weight lifting. Dr Tsoi opined that the prognosis is fair; Lee may have residual back and ankle symptoms when performing manual duties especially heavy weight lifting and long distance walking. They both agreed that Lee should be independent in activities of daily living. 92.The doctors opined that removal of the implants in Lee’s ankles was optional. In fact, Lee underwent an operation to remove the implants on 18 September 2015 at UCH. Lee said that follow up consultations at the Orthopaedic Clinic of UCH stopped shortly after the implant removal operation; and hence, he no longer needs to attend any follow up. 93.On the other hand, there is no medical evidence on Lee’s psychiatric condition. I note that sick leave has been granted on 28 May 2012 and 18 June 2012 by EKPC to Lee for depression. Lee said that he started to consult the psychiatrists at EKPC from 28 May 2012 about once every two to three months. At present, he still consults the psychiatrists about once every four months. He also said that he is taking medicine prescribed by the psychiatrists for depression, and insomnia. 94.I shall now turn to the individual head of damages. C2. General damages for PSLA 95.Mr Poon submitted that $650,000 should be awarded under this head whereas Ms Bu submitted that only around $300,000 should be awarded. 96.In Chan Sze Yuen v Tin Wo Engineering Co Ltd & others, HCPI 427/2008 (5 February 2016, unreported), the plaintiff suffered a fracture of the right calcaneum, he was admitted to hospital for an open reduction operation; after discharge, he received two months of physiotherapy and seven to eight sessions of occupational therapy. After considering a number of precedents, Master Leong awarded $250,000 (§10). The injuries and disabilities suffered by Lee in this case were far more serious than those of the plaintiff in that case. Ms Bu also referred to Lam Cheuk Leung v Erawin Co Ltd [2004] 1 HKLRD 778, where the plaintiff sustained fracture of L1 lumbar vertebrae, fracture of the calcaneum bones of both feet, and also fracture of the distal phalanx of right toe. He was awarded $300,000. Apart from the fact that this was a case decided more than 12 years ago, it appears that the plaintiff in that case did not need to undergo any operation (§48). I take the view that the figure suggested by Ms Bu is too low. 97.Mr Poon relied mainly on Lam Chan Hung v Hang Yue Engineering Ltd & others [2013] 3 HKLRD 420. In that case, Bharwaney J awarded $620,000 putting the plaintiff at the top end of the serious injury category and bordered on the substantial injury category; the plaintiff suffered serious and continuing permanent disabilities from back and leg problems which were aggravated by his adjustment disorder, urinary symptoms and sexual dysfunction. The injuries and disabilities suffered by the plaintiff in that case were more serious than those suffered by Lee in this case. The figure suggested by Mr Poon is too high. 98.Mr Poon submitted that, nevertheless, Lee should be put in the “serious injury” category. In Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at 659, the Court of Appeal held that the serious injury category:
99.Mr Poon stressed that Lee is suffering from recurrent pain. I take the view that it is inappropriate to consider the phrase “recurrent pain” in isolation in the present context. In order to fall within the “serious injury” category, there ought to be recurrent pain which has the effect of marring the plaintiff’s general activities and enjoyment of life. It is therefore necessary to consider the severity and frequency of the pain. In the light of the medical evidence set out above, while I agree that Lee probably suffers from ankle and back pain from time to time, I am not satisfied that his general activities and enjoyment of life have been marred by such pain. I appreciate that the different categories of injuries classified in Lee Ting Lam should not be regarded as straightjackets. Nevertheless, I take the view that Lee should be put just below the “serious injury” category. 100.In Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd (in liquidation) [2015] 5 HKC 570 at 586, §48, Bharwaney J held that the awards for the Serious Injury Category currently start at $510,000. I hold that a reasonable and appropriate award in this case should be $500,000. C3. Loss of earnings and MPF benefits
101.Mr Poon submitted that, at the time of the Accident, Lee’s average monthly income was $21,878. In contrast, Ms Bu submitted that it should only be $18,140. 102.It is necessary to consider how Lee was paid for his works. The evidence supports that he was paid in two different ways:
103.There is a serious dispute as to, on average, how many days in a month Lee worked. Lee said that it was about 26 days. He said that, very often, he worked on two Sundays in a month. He would only stop working if a typhoon signal no 8 or above was hoisted. When it was raining, he would do some indoor works. In contrast, the defendants claimed that it should not be more than 16 to 17 days. Lee could and would not work if it was raining, or when there was a typhoon. He would not work during the big festivals or public holidays. There is no documentary evidence which can assist me to determine accurately how many days on average Lee worked. However, I do not find it necessary to make a finding on this point. This is because there are reliable documents showing how much Lee earned as a matter of fact before the Accident. 104.First, the defendants referred me to the employer’s tax return submitted to the Inland Revenue Department. For the one year between 1 April 2010 and 31 March 2011, Lee made a total sum of $217,691, ie $18,140.92 a month. This is the basis of Ms Bu’s submission that Lee’s monthly income should be $18,140. 105.Second, Lee referred me to a revision to the Form 2 dated 29 November 2011 in which it was stated that Lee’s average monthly income was $21,878. This figure matches with the information shown in the List of Earnings filed by the respondents (including the defendants) in DCEC 442/2013 dated 25 September 2013. The List of Earnings shows that for the 12 months before the date of the Accident (ie 21 March 2011), and from 31 March 2010 to 29 February 2011, he received a total sum of $262,536, which is equivalent to $21,878 per month. The List of Earnings indicates that Lee received his incomes irregularly, and not at the end of each month. Sometimes, he would receive payments in round figures (such as $10,000). Ng explained that, usually, Lee would be paid after the completion of a particular project. However, it would take time to complete the project, to do the calculations, to arrange payments, etc. Hence, from time to time, she would pay sums of money in round figures to Lee as advance payments. As mentioned, $21,878 is the figure Mr Poon asked me to accept. 106.Mr Poon submitted that the tax returns were not reliable because Ng had understated Lee’s incomes. The defendants denied such allegation. I accept that there was no sensible reason why Ng would choose to understate the employees’ incomes, which would result in more profits tax for the employer. On the other hand, Ms Bu challenged the reliability of the List of Earnings on the ground that it was not supported by any documents. However, one needs to remember that the List of Earnings was a document prepared by the defendants’ lawyers in the employees’ compensation proceedings. The irresistible inference is that the figures in that document were based on instructions given by the defendants (in particular, Ng). I cannot see any good reason why the defendants should be allowed to resile from the List of Earnings complied by them. 107.The fact that different figures were stated in the said tax return and the List of Earnings does not indicate that either one of these documents was inaccurate or untrue. It is necessary to bear in mind that they covered slightly different periods: the said tax return covered the one year period between 1 April 2010 and 31 March 2011 whereas the List of Earnings covered the one year period between 22 April 2010 and 21 March 2011. In my view, both documents were accurate and reliable. 108.Accordingly, I take the view that the fairest approach is to take both documents into account in assessing Lee’s average monthly income before the Accident. I shall take the median of the two figures supported by the two documents:
I shall round it off to $20,000.
109.What I need to consider next is how much Lee would and could have earned but for the Accident. For a scaffolder like Lee, his daily wage today would be $1,000 (as compared to $800 at the date of the Accident); this would be equivalent to an increase of 25%. A more senior scaffolder would receive up to $1,200 a day. On the other hand, Leung said that the unit rate for each scaffold (ie 10 feet by 10 feet) has been increased from $135 to at most $145 (ie an increase of about 7.4%). 110.It is unclear, before the Accident, how much of Lee’s incomes were paid by reference to daily wage; and how much thereof was paid by reference to the number of scaffolds that he managed to complete each day. Leung stated that Lee was always paid by reference to the number of scaffolds the he had completed. The figures shown in the List of Earnings seem to support his evidence. However, in the absence of any documentary evidence showing a detailed breakdown of Lee’s incomes before the Accident, I cannot exclude the possibility that, sometimes, Lee would be paid by reference to his then daily wage of $800. 111.All in all, I take the view that it will be fair and reasonable to assume that, but for the Accident, Lee’s monthly income would have increased by about 10%:
112.In assessing his loss of earnings, I shall adopt the median figure of $20,000 (his average monthly income at the time of the Accident) and $22,000 (the monthly sum that he could have earned but for the Accident):
113.As mentioned, Lee was granted sick leave intermittently for a total of 477 days from 21 March 2011 to 9 July 2012, say 15.6 months. The orthopaedic experts agreed that the sick leave he received is appropriate. Lee is entitled to a complete loss of earnings for this period. 114.The award for this period should be:
115.As mentioned, the sick leave expired on 9 July 2012. On 1 March 2014, Lee started to work as a security guard. The period from 10 July 2012 to 31 March 2014 covered a period of about 20.68 months. 116.Mr Poon submitted that Lee should be entitled to a complete loss of earnings for this period. Ms Bu submitted that Lee had failed to mitigate his loss, and should be awarded a partial loss of earnings for this period only. 117.According to the reports of the Occupational Therapy Department of UCH, there were discussions on future work plan in late 2011 and early 2012 before the expiry of the sick leave. In about January 2012, Lee indicated that he was willing to consider changing to work as a driver in the long run. Upon completion of the occupational therapy in late February 2012, it was confirmed that his residual capacity did not fully match his previous job demands. Lee indicated again that he was willing to change to another job in the long run. The occupational therapist stated in the report that Lee had been referred to vocational resettlement. However, Lee denied, and there is no evidence, that he had attended any vocational resettlement programme in fact. 118.The Orthopaedics & Traumatology Department of UCH granted sick leave to Lee from 28 March 2012 to 7 June 2012, when he was supposed to be examined by the Medical Assessment Board. It is significant to note the content of the consultation summary of the next follow‑up on 27 June 2012. According to the summary, Lee’s condition had reached a plateau since February 2012, he had no pain and he did not need any analgesic. In addition, the doctor explained to him that sick leave would only be given until his condition had become static, and his condition had indeed already become static. Lee admitted that he asked for further sick leave but the doctor refused. He also said that he merely told the doctor that he did not feel as much pain as before. 119.In the light of the above evidence, I take the view that, upon the expiry of the sick leave on 9 July 2012, Lee should be in a position to return to work. However, he only started to work as a security guard about 20 months after that. The immediate and natural question is what efforts he had made in trying to seek a new job suitable for him; and whether such efforts were reasonable in the circumstances. 120.Lee said that, after the sick leave expired, he still suffered ankle and back pain, and he did not know what jobs were suitable for him. He went to the office of the Labour Department at San Po Kong twice but could not see any suitable jobs. However, he had not even registered with the Labour Department. He also said that, on one occasion, he tried to work in a shop selling metal‑ware but once the proprietor knew that he had suffered injuries he was asked to leave. He said that it was only in about late 2013 that he formed the idea of becoming a security guard. He attended a two days’ course, and a certificate was issued to him after about two weeks. And, after that, he obtained a job as a security guard on 1 April 2014. 121.I am not satisfied that Lee had made reasonable efforts to look for a new job which was suitable for him. Put it another way, I am not satisfied that his complete loss of earnings for this period was caused by the residual disabilities that he suffered as a result of the Accident; I take the view that it was caused by his failure to take reasonable steps to find a new job. 122.On his own evidence, from the time he formed the idea of becoming a security guard to the time he obtained a job as a security guard, there was a period of about three months. I agree that a reasonable time ought to be given to him to consider what jobs would be suitable for him, to find out how he may find such jobs, and to take actual steps to find such jobs. I believe that it would be reasonable to give him 6 months to do so. The suggestion of 10 months made by Mr Poon is too generous whereas the suggestion of 1 month made by Ms Bu is too harsh. Hence, I am prepared to award to him a complete loss of earnings for 6 months from 10 July 2012 up to, say 9 January 2013:
123.As to the period from 9 January 2013 to 1 April 2014 (ie a period of about 14.68 months), he should only be entitled to claim a partial loss of earnings. The question is how much he should be able to earn for this period; and whether his actual income as a security guard from 1 April 2014 reflected his residual earning capacity. 124.It is not in dispute that he could not return to his previous job. Dr Fu opined that, in view of Lee’s ankle stiffness and weakness, he could not return to his previous job, which required heavy manual lifting, climbing and squatting. He also opined that his job as security guard, which did not need long period of walking, should be appropriate. Dr Tsoi agreed that Lee will have difficulty in resuming his pre‑injury job in good capacity. Alternative jobs are shopkeeper and manufacturing worker, customer service attendant, petrol station attendant, cashier and carpark attendant etc. 125.The defendants initially claimed that Lee, who had a licence to drive mid‑weight trucks, should have been able to return to work as a driver. And had he done so, he could have easily earned the same amount as before the Accident. This was a job that he told the occupational therapist that he would consider. Lee said that, very often, a driver needed to work as a delivery worker at the same time. Moreover, he had not driven a vehicle for a long time, and he doubted whether he had sufficient physical ability to work as a full‑time driver. I note that a driver of a truck or any vehicle would need to use at least one, but sometimes both, of his feet to control the brake and/or the clutch. In view of the residual problems in his ankles (in particular, the right ankle), I doubt whether he is suitable to work as a driver. Furthermore, there is no medical evidence that this is a suitable job for him; driver is not among one of those jobs recommended by the orthopaedic experts in their joint report. 126.On the other hand, I am satisfied that security guard was a job that he could and should take up, by the latest, in about January 2013. When he started to work as a security guard on 1 April 2014, his monthly salary was $6,960. I take the view that this was the amount that he could and should have earned from January 2013. 127.Ms Bu submitted that the security guard job that Lee took up on 1 April 2014 required him to work from 2:30pm for about 8.5 hours each day only. She submitted that he should be able to work 12 hours a day as security guard. According to the statistics of the Hong Kong Census and Statistics Department, he could have earned around $10,000 a month. I take the view that it does not matter when he started to work each day. The important point is that I do not find it unreasonable for Lee to choose to work 8.5 hours a day as security guard. 128.Accordingly, for the above‑mentioned period of 14.68 months, he should be entitled to a partial loss of earnings as follows:
129.Hence, for the period from 10 July 2012 to 31 March 2014, his loss of earnings should be:
130.From 1 April 2014, Lee has been working as a security guard for Sunbase International Properties Management Ltd. His monthly salary was $6,960, which had been increased to $7,440 from 1 September 2014. Lee said that, since 1 May 2015, his monthly income has increased further to $8,060. 131.For the period from 1 April 2014 to 31 August 2014 (ie 5 months), his loss of earnings should be:
132.For the period from 1 September 2014 to 30 April 2015 (ie 8 months), his loss of earnings should be:
133.For the period from 1 May 2015 to around 15 March 2016 (the estimated date for handing down this judgment) (ie 10.5 months), his loss of earnings should be:
134.As mentioned earlier, Lee received an operation to remove the implants in September 2015. He said that he was on sick leave from 18 September 2015 for about 88 days till 16 December 2015. During this period, he received
135.His total loss for the period from 1 April 2014 to 15 March 2016 should then be:
136.Accordingly, the total amount of loss of earnings, plus loss of MPF benefits calculated at 5% of his loss of earnings, should be:
C4. Future loss of earnings and MPF benefits
137.As stated above, I take the view that, but for the Accident, Lee would have made about $22,000 a month now. In fact, his present monthly income is $8,060. Hence, the multiplicand that should be used to assess his future loss of earnings should be:
138.The main issue is, but for the Accident, at what age Lee would have retired as a scaffolder. Mr Poon submitted that it would be 65 whereas Ms Bu submitted that it would only be 60. 139.There is no fixed retirement age for scaffolders. Lee said that scaffolders could work up to the age of 65. However, they may work lesser number of days. Leung admitted that there were scaffolders who worked even up to the age of 66 to 67 but, usually, they would retire at around 61 years old. 140.I accept that Lee would have been able to work until the age of 65. However, I take the view that it is likely that he would have reduced the number of working days gradually after he had passed the age of around 61. It is impossible to predict the extent of such reduction. Mr Poon submitted that if I am minded to make some deductions, the award should not reduced by more than 5%. Adopting a broad brush approach, I will discount the award by 10%. 141.Ms Bu also submitted that the normal retirement age of Lee would have been affected by his pre‑existing health problems, in particular, osteophytes (commonly known as bone spurs). In Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 at 965F–G, Mortimer VP held that:
142.Lee admitted that he had suffered osteophytes in the past. However, he said that it was already a long time, and about 10 years ago; and that he did not suffer from any such problem at the time of the Accident. Ng confirmed that Lee had not complained of such health problem for a long time before the Accident. There were also some suggestions that Lee is allergic to medicine for flu; and he had to take sick leave after taking such medicine. However, there is no medical evidence concerning these pre‑existing health problems at all; and there is no medical evidence whatsoever supporting that any of these pre‑existing health problems would have the effect of reducing Lee’s working life as a scaffolder but for the Accident. I am not convinced that the multiplier should be reduced because of such pre‑existing health problems. 143.In Chan Pak Ting v Chan Chi Kuen & another (No. 2) [2013] 2 HKC 365 at §133, pp 424H–425H, Bharwaney J held that the discount rate for plaintiffs with needs not exceeding 10 years should be 1%. In Chan Wai Ming v Leung Shing Wah [2014] 4 HKLRD 669, §8.5, Cheung JA approved the new approach. As I have decided that Lee would have retired at the age of 65, the applicable table should be “Table 9: Multipliers for Loss of Earnings to Pension Age 65 (Males)” at p 27 of the Personal Injury Tables Hong Kong 2013. 144.Mr Poon submitted that I should adopt the figure applicable to a plaintiff aged 55 at the date of trial in the said table. It is true that Lee is now 55 years old. But the reality is that he will be 56 years old very soon (his birthday is on 23 March). In my view, it is much more realistic and reasonable to adopt the figure applicable to a plaintiff aged 56 at the date of trial in the said table. I note that in Lam Chan Hung v Hang Yue Engineering Ltd & others [2013] 3 HKLRD 420, the plaintiff was 57 years and 10 months old by the time of the judgment (§26, p 436); Bharwaney J applied a multiplier applicable to a person aged 58 at the date of trial (§62, p 448). 145.According to the said table, for a plaintiff aged 56 at the date of trial, and adopting a discount rate of 1%, the multiplier should be 8.39.
146.According, Lee should be entitled to future loss of earnings, plus future loss of MPF benefits, as follows:
I have reduced the award by 10% for reasons stated above. 147.I have calculated his future loss of earnings by reference to a plaintiff who is aged 56. In order not to under‑compensate Lee, I am prepared to add his future loss of earnings for the short period from 16 March 2016 (I have assessed his loss of earnings up to 15 March 2016) to 23 March 2016 (when he will be 56 years old) (ie 7 days):
148.The total award should, therefore, be:
C5. Loss of earning capacity 149.In their closing submissions, the parties informed me that they had agreed that the award under this head should be $100,000. C6. Other special damages 150.The parties have also agreed that $23,000 should be awarded under this head. C7. Summary on quantum 151.A summary of my decisions on quantum is as follows:
D. CONCLUSION 152.As I have found that Lee was contributory negligent to the extent of 30%, the total award shall be reduced by 30%:
153.Lee must give credit to the total sum of $475,471.43 that he has been received under the Employees’ Compensation Ordinance and DCEC 442/2013. Hence, excluding interest, the net award shall be:
154.Interest on general damages for PSLA should be awarded at 2% per annum from the date of service of the writ to the date of judgment whereas interest on pre‑trial loss of earnings and MPF benefits as well as other special damages should be awarded at half the judgment rate (ie 4%) from the date of the Accident to the date of payment of employees’ compensation and thereafter, at the same rate up to date of judgment on any remaining balance of such damages after the deduction of the amount of employees’ compensation from those damages; no interest is payable on damages for loss of earning capacity, or future loss of earnings and MPF benefits (Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd (in liquidation) [2015] 5 HKC 570 at 593, §66). 155.I also make a costs order nisi that the defendants do pay the costs of this action to Lee, to be taxed if not agreed. The costs order nisi will become absolute unless any party makes written submissions within 14 days after this judgment is handed down; in such event, I shall dispose of the issue of costs on paper.
Mr Jackson Poon, instructed by B Mak & Co, for the plaintiff Ms Annie Bu Ya nan, instructed by S C Chan & Co, for the 1st and 2nd defendants |
of his salaries for 42 days but he received no income at all for the remaining 46 days. Although he has not adduced any documentary evidence to support what he said, his evidence in this respect has not been challenged. I am prepared to award him the following sum to cover his loss in this respect:
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