Lam Tak Wa v. Everbest Port Services Ltd (in Liquidation) and Another
Read the full judgment text of HCPI 455/2016 on BabelCite. This High Court CFI judgment was delivered on 13 November 2018.
1. On 9 July 2011, the plaintiff being an employee of the 1 st defendant was assigned by the 1 st defendant to assist in the unloading of containers onto shore from the cargo hold hatch cover (“ the Hatch Cover ”) of a Container Ship known as ‘Mell Satumu’ (“ the Vessel ”) which was moored at the Kwai Chung Container Terminal Pier 9, Kwai Chung, New Territories, Hong Kong.
Cited by 2 cases · Cites 8 cases
|
HCPI 455/2016 [2018] HKCFI 2461 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 455 OF 2016 _______________________
_______________________
_______________________ J U D G M E N T _______________________ A. INTRODUCTION 1.On 9 July 2011, the plaintiff being an employee of the 1st defendant was assigned by the 1st defendant to assist in the unloading of containers onto shore from the cargo hold hatch cover (“the Hatch Cover”) of a Container Ship known as ‘Mell Satumu’ (“the Vessel”) which was moored at the Kwai Chung Container Terminal Pier 9, Kwai Chung, New Territories, Hong Kong. 2.The Hatch Cover was about 2 metres above the passageway (“the Passageway”) of the main deck of the Vessel. 3.Since the containers were secured onto the Hatch Cover by lashing bars, the plaintiff had to get access to the top of the Hatch Cover to release the locking mechanism for the containers. 4.While the plaintiff was walking along a narrow horizontal beam on the top of the Hatch Cover intending to open a metal lock, the plaintiff lost his balance and fell from the Hatch Cover onto the Passageway (“the Accident”). There was neither handrail for the plaintiff to hold on whilst walking on the beam nor any fence at the edge of the Hatch Cover to safeguard the plaintiff. 5.As a result, the plaintiff sustained personal injuries at his buttocks and/or back. 6.As confirmed by the plaintiff in court, he fell down from a height of about 2 metres. Upon falling down, he landed on his buttocks with his hands outstretched. 7.The plaintiff also confirmed that there was no bleeding nor any fracture. He did not undergo any operation or surgery during treatment. B. THE 1ST DEFENDANT’S DEFENCE 8.In the 1st defendant’s Defence, the 1st defendant admitted the employment relationship with the plaintiff but simply denied the plaintiff’s claim and put the plaintiff to strict proof of his claim and further contended that the accident was caused by and/or contributed to by the plaintiff’s own fault. 9.The main crux of this case on liability is whether the 1st defendant failed its employer’s duty to provide the plaintiff a safe system of work and/or a safe place of work. 10.Previously, the 1st defendant was represented by a firm of solicitors, Messrs M.H. Tang & Co, who has taken certain steps in defending the case including the filing of evidence. They ceased to act for the 1st defendant pursuant to an order dated 1 June 2016. Subsequently, the 1st defendant was ordered to be wound up pursuant to an order dated 11 January 2017. 11.There is no interlocutory judgment on liability. Leave was granted for the 2nd defendant to join in on the issue of quantum pursuant to an order dated 27 June 2017. C. LIABILITY 12.It is trite law that an employer has a common law duty to, inter alia, provide a safe system of work for his employees. It is well established that a safe system of work shall include, inter alia, the organization of work; the way in which the work shall be carried out; the giving of adequate instructions and the taking of precautions when the employee is doing that particular task; providing and maintaining proper plant, appliances and number of persons to do the job [Wilsons & Clyde Coal Co Ltd v English [1938] AC 57]. 13.As such, the 1st defendant being the employer of the plaintiff, was under a duty to take reasonable care for the safety of the plaintiff in all the circumstances of the case so as not to expose him to an unnecessary risk. Further, the 1st defendant owed various statutory duties, such as, section 3 of the Occupiers Liability Ordinance, Cap 314; section 44 of the Shipping and Port Control Ordinance, Cap 313; and regulation 5 of the Shipping and Port Control (Works) Regulations, Cap 313X. 14.An employer’s duty to take reasonable care for its employee’s safety is personal and non-delegable [Tsang Chung Wan v Li Ming & Ors [1998] 2 HKLRD 354; General Cleaning Contractors Ltd v Christmas [1953] AC 180]. 15.The plaintiff submitted and I agree that it was too dangerous for the plaintiff to walk on the Beam without any handrail, working platform and/or device to safeguard him from losing balance and falling from height. This risk of danger was too obvious and was known or ought to have known by the 1st defendant [Lau Kin Wah v Lam Shu Kan formerly trading as Kuen Kee Kwok Wing Transportation & Stevedores Company, HCPI 1208/1998 (Judgment of Seagroatt J dated 28.02.2000)]. 16.In the Lau Kin Wah’s case, Seagroatt J said this at page 3: –
17.It is beyond dispute that the edge of the Hatch Cover of the Vessel was not properly guarded and/or fenced to protect the safety of the stevedores including the plaintiff and/or to prevent them from falling at a height. An employer’s duty to take care for its employee’s safety is personal and non-delegable. 18.In the circumstances of this case, the 1st defendant is clearly liable for the Accident. D. CONTRIBUTORY NEGLIENCE 19.On the issue of contributory negligence, I agree that the plaintiff should not be blamed for the Accident. 20.In Casewell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, at 178-179, Lord Wright laid down that in considering the question of contributory negligence of an employee, the court should give due regard to the actual conditions under which a worker performed his duty, at the cost perhaps of some inattention to his own safety. 21.In Li Tak Foon and Li Tak Fun, co-administratrices of the estate of Wong Pau Kui, deceased v Chan Chu t/a Chan Chu Kee, HCPI 468/1995 (Judgment of Woo J dated 13.12.1995), in determining the liability issue, Woo J, as he then was, at page 18 kept in mind the principle set out in Li Man Yuen v Li Chung I (unreported, Civ. App. 91 of 1991, 14.11.1991, pp.12-13): –
22.In Lam Cheuk Leung v Erawan Co Ltd & Ors [2004] 1 HKLRD 778, A Cheung J (as he then was) held at paragraph 52 that where the accident was caused solely or partly by a breach of statutory duty by the defendant, the court would less readily hold that there was contributory negligence on the plaintiff’s part. Further, where the defendant’s breach of statutory duty resulted in the plaintiff not being able to adopt a safe method to carry out his work, the court would not easily hold that the plaintiff was contributorily negligent in adopting an unsafe method that he had in effect been forced to adopt. 23.In the premises, I do not consider that there is any basis for concluding that the plaintiff is guilty of contributory negligence. Accordingly, I hold that the 1st defendant is liable to the plaintiff for damages on full liability basis. E. QUANTUM E1. Plaintiff’s personal background 24.The plaintiff was born on 16 November 1967 in Mainland China. 25.At the time of the Accident, the plaintiff was aged 43 and by the time of trial, he is 50 years of age. 26.Since 1995, the plaintiff was employed by the 1st defendant as a stevedore cum signalman, and prior to the Accident earning an average monthly income of HK$21,789.90. E2. Plaintiff’s injuries and treatment 27.Upon falling down, the plaintiff landed on his buttocks. When he attempted to get up by himself, the pain at his back made him lost consciousness transiently. He regained consciousness in the ambulance on the way to the A&E Department of the Princess Margaret Hospital. 28.The particulars of the injuries and treatment of the plaintiff are documented in the hospital records and reports. Briefly, the plaintiff was admitted to the Intensive Care Unit for monitoring. Physical examination showed tenderness over his neck, lumbo-sacral spine region and right hip. X-ray cervical spine revealed soft tissue swelling over the upper cervical spine. No intracranial haemorrhage or fracture or neurological deficit was found. 29.On the next day, the plaintiff was transferred to the general ward of the Orthopaedic and Traumatology Department for further management. The diagnosis was soft tissue injury to lumbar spine and cervical spine. In-patient physiotherapy treatments for pain relief and mobilization exercise were given. The plaintiff was discharged home on 19 July 2011 with walking frame. Thereafter, the plaintiff attended following-up treatments and physiotherapy treatments. E3. Orthopaedic experts 30.Regarding the Accident (on 9 July 2011), the two orthopaedic experts agreed that the plaintiff sustained soft tissue injury to his lumbar spine and cervical spine. The prognosis was fair to good. There was no neurological deficit detected. Impairment of whole person was assessed at 3-4% and 1-2% by Dr SH Wong and Dr Patrick Wong respectively. 31.After conducting various examinations and tests, Dr Patrick Wong (engaged by the 1st defendant) pinpointed that there were no significant objective signs (such as muscle spasm, muscle wasting or loss of reflex) but many inappropriate signs (such as positive simulation tests, inconsistent straight leg raising in supine & sitting, very little spine flexion but can tie shoes laces). He opined that much of the plaintiff’s subjective symptoms and disabilities are probably non-organic in origin. 32.I agree that the inconsistencies between the signs or test results, and the lack of significant objective signs are very cogent indications that the plaintiff exaggerated his injuries during the joint examination. There is no other plausible explanation for the inconsistencies. 33.In the joint orthopaedic report, Dr SH Wong (engaged by the plaintiff) has not rebutted or discussed the aforementioned inconsistencies as raised by Dr Patrick Wong. E4. Neurological experts 34.Regarding the Accident, the two neurological experts agreed that the plaintiff sustained soft tissue injury to low back. Impairment of whole person was assessed at 2% and 0.5% by Dr ST Chan and Dr Edmund Woo respectively. 35.Dr Woo (engaged by the 1st defendant) stated and discussed with detailed reasons that the plaintiff’s deficits were feigned or grossly exaggerated in light of the following discrepancies and inconsistencies:
36.I agree that the aforesaid opinions of Dr Woo are well reasoned and supported by medical examinations jointly conducted with the plaintiff’s expert. 37.Despite the said unequivocal opinions and detailed reasoning of Dr Woo, Dr ST Chan (engaged by the plaintiff) has not rebutted or discussed this aspect in the joint neurological report. 38.Furthermore, it is worth noting that, orthopaedically and neurologically, both Dr Patrick Wong and Dr Woo found inconsistencies between the plaintiff’s test results and the lack of significant objective supporting signs. This is unlikely a coincidence. 39.In the circumstances, although the plaintiff denies so, there are cogent (and undisputed) medical findings and opinions to justify the conclusion that the plaintiff’s deficits are feigned or grossly exaggerated. E5. Consultations with Dr Kuan Ying Fatt 40.The plaintiff said he had consultations with a private doctor/specialist, Dr Kuan Ying Fatt and produced the relevant consultation fee receipts. 41.The plaintiff testified, inter alia, that:
42.There is clearly an issue as to whether the consultations with Dr Kuan are justified and necessary, in particular, in light of the medical experts’ opinions (which I accept) that the plaintiff has exaggerated his symptoms. 43.The plaintiff first consulted Dr Kuan roughly one year after the Accident. He testified that at that time, the hospital only prescribed pain-killers to him for a long period of time and the scheduled follow-up was a long way away as well. Due to his back pain, he consulted a private doctor, ie Dr Kuan. He said Dr Kuan prescribed to him medication which relieved his back pain. Dr Kuan also issued 14 days’ sick leave to him on each occasion. 44.It may be noted that in all of the consultation receipts, the diagnosis was a general term of “Back Injury”, without any reference to “pain” (which was the alleged reason for the plaintiff to consult Dr Kuan). 45.According to the consultation receipts, the plaintiff consulted Dr Kuan continuously at roughly 2-week intervals for almost a year up to 17 June 2013. During that period of time, the plaintiff had not resumed working (therefore no earnings) but he had to spend around HK$1,400 a month on average on such consultations. 46.The plaintiff denies that he consulted Dr Kuan for the purpose of obtaining sick leave. Yet, a recurrent monthly expenses of HK$1,400 for almost a year is not a small sum to a person with no income. 47.Very tellingly, when the plaintiff resumed working in August 2013, he ceased to further consult Dr Kuan. Why ceased the consultations when he was more financially capable? Moreover, he said when he initially worked for Mexxi, he had to take additional days-off due to his back pain. If there was such back pain, why did he not continue to consult Dr Kuan? 48.In addition, it can be noted that both orthopaedic experts agreed that by the time of the joint examination in January 2013, the plaintiff had already reached maximal medical improvement. 49.In the circumstances, I agree that the majority, if not all, of the plaintiff’s consultations with Dr Kuan have no proper justification or necessity. E6. Pain, suffering and loss of amenities (“PSLA”) 50.In my view, having regard to the PSLA awards in the following cases, the appropriate PSLA award for the plaintiff in the present case should be HK$120,000.
E7. Loss of earnings Pre-accident monthly earnings 51.Before the Accident, the plaintiff was a stevedore cum signalman under the employment of the 1st defendant. A list of monthly earnings of the plaintiff for the 12 months before the Accident was filed by the 1st defendant (which is agreed by the plaintiff). There is no dispute that the average pre-accident monthly earnings of the plaintiff was $21,789.90. The 1st defendant’s post-accident pay rise 52.It is the plaintiff’s case that but for the Accident, the plaintiff’s monthly earnings with the 1st defendant would have increased at the rate of the increase in the daily pay per shift. 53.The plaintiff said or agreed at trial that before the Accident:
54.As the monthly earnings were affected by the monthly working days and the working shifts, even if there was a pay rise per shift by a certain percentage, there may not be an increase in the monthly earnings by the same percentage, depending on the monthly working days and working shifts. 55.If a worker, say, had lessor monthly working days and/or changed to a lower pay shift after the shift pay rise, his overall monthly earnings would be less than before despite the shift pay rise. 56.The above hypothesis is verified by the earnings of two comparable workers (one of which the plaintiff personally knows). 57.In fact, the plaintiff agreed in court that the rate of increase per shift pay does not necessarily result in the same rate of increase in the overall monthly salary (if there is an increase at all). 58.He said normally there should be an increase in monthly salary when there is an increase in shift pay. Nonetheless, he agreed that the word ‘normally’ cannot exclude the possible situation that the businesses of the 1st defendant dropped or declined (resulting in lessor work for workers). Sick leave 59.After the Accident, sick leave was granted to the plaintiff up to 30 June 2013 (almost 24 months after the Accident), and thereafter on intermittent periods. He commenced working/training on 15 August 2013. 60.Orthopaedically, Dr Patrick Wong stated that although soft tissue injury generally recovers in 6 weeks, in the plaintiff’s case, given the pre-existing degeneration, sick leave up to 6 months would be reasonable. As for Dr SH Wong, he stated that for uncomplicated soft tissue back injury, sick leave of 4 to 6 months would be adequate. As the plaintiff was resistant to treatment, sick leave until 20 November 2012 is reasonable. 61.Neurologically, Dr Chan and Dr Woo considered the reasonable period of sick leave to be 6 months and 3 months respectively. 62.In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210, Le Pichon JA stated at paragraph 18 that: –
63.The plaintiff sustained soft tissue injury upon falling from a height of 2 metres. His recovery was uneventful. Taking into account the medical experts’ opinions, I agree that the appropriate period of sick leave, or the period during which the plaintiff was prevented by the injuries sustained from returning to work, is 6 months. Post-accident working ability of the plaintiff 64.The plaintiff said he can no longer resume his pre-accident job after the Accident. After expiry of sick leave, he commenced training and working as a crane operator on 15 August 2013. He said he had to take intermittent sick leave to alleviate his back pain. As a result, he was arranged to work for 16 to 17 days a month since July 2015. His average monthly post-accident earnings were HK$18,397.93. 65.It is the case of the plaintiff that he cannot cope with the strenuous physical demand of his pre-accident job. He avers that he can only work in slow pace and needs help from co-workers from time to time. 66.As discussed above, there are evidence and grounds to show that the plaintiff has exaggerated his disabilities and complaints. 67.Medically, the plaintiff’s orthopaedic specialist, Dr SH Wong, opined that with persistent low back pain, the plaintiff is still able to resume work with deceased working capacity and efficiency. He may encounter difficulty in performing manual duties like frequent heavy lifting and carrying, climbing up and down, etc. 68.Similarly, Dr Patrick Wong opined that the plaintiff should be able to resume his job with mildly reduced working capacity and efficiency. He added that this is contributed mainly by the plaintiff’s pre-existing degenerations with small contribution from the Accident. 69.Neurologically, Dr Chan said the plaintiff cannot return to his previous job, whereas Dr Woo considered that the plaintiff should be able to do so with no loss of earning capacity. 70.The plaintiff sustained soft tissue injury to his spine. The majority opinions of the medical experts are that the plaintiff can return to his pre-accident job (as stevedore cum signalman). 71.Evidently, the plaintiff is capable of working as a crane operator after the Accident. In court, he said he is now capable of working 20 to 22 days a month. Pre-trial Loss of Earnings & MPF 72.In the circumstances, by reason of my findings as stated above, the award for the plaintiff’s pre-trial loss of earnings and MPF should be:
73.In light of the discussion above concerning pay rise per shift and the short duration of pre-trial loss (6 months), I agree that adjustment to the pre-accident monthly earning ($21,789.90) is not required. 74.It may appear that, despite being gainfully employed post-accident, the plaintiff’s monthly earnings were less than that before the Accident. This is due to the fact that he was working only 16 to 17 days a month with Mexxi after the Accident. 75.The plaintiff claimed that he had to take intermittent days-off to alleviate his back pain. As a result, Mexxi had to arrange the plaintiff to work for 16 to 17 days a month. 76.The plaintiff agreed when testifying in court that but for the intermittent days-off, he could have more monthly working days than 16 to 17 days. He said he is now working 20 to 22 days a month. 77.The reason for the intermittent days-off was allegedly to alleviate his back pain. However, as held above, this is an exaggeration of symptoms. 78.Further, there is no recommendation from any of the medical experts that he has to take such days-off to ease pain. 79.With 16 to 17 working days, the plaintiff had an average post-accident monthly earning of about HK$18,397.93. On the basis of 20 to 22 working days (and thereby resulting in an increase in earnings by a quarter) the plaintiff could have earned around HK$22,997.41 a month, which is comparable to an assumed earnings with the 1st defendant (but for the Accident). It may be further noted that the 1st defendant was ordered to be wound up in January 2017. Post-trial Loss of Earnings 80.Following the discussions above, I agree that firstly, the plaintiff is capable of resuming his pre-accident work as a stevedore cum signalman. 81.Second or alternatively, he is capable of earning an income as a crane operator comparable to that of a stevedore cum signalman with the 1st defendant. 82.Thus, in my view, there should be no award for post-trial loss of earnings. E8. Loss of earning capacity 83.For an award of loss of earning capacity to be made, there has to be evidence to prove the extent, if any, of the risk that the plaintiff will at some future time during his working life lose his employment [Chan Wai-tong v Li Ping-sum[1985] HKLR 176, 183 (PC)]. 84.The plaintiff has been in continuous employment with Mexxi since August 2013. Moreover, taking into account the opinions of the medical experts about the prognosis of the plaintiff’s injuries and working ability, I agree that there should be no award for loss of earning capacity. E9. Special damages 85.The plaintiff claims the following incurred expenses:
86.The medical expenses comprised of hospital fees, Chinese bonesetter fees ($1,600) and consultation fees to Dr Kuan Ying Fatt ($16,800). 87.Following the discussion at paragraphs 40 to 49 above concerning the consultation with Dr Kuan, I am of the view that the majority, if not all, of such expenses should not be allowed. 88.There is no receipt for travelling expenses. As such expenses include those spent to attend consultations with Dr Kuan, I agree that an award of about $2,000 is reasonable. 89.There is no receipt for tonic food and miscellaneous expenses. Since there was no bleeding wound sustained nor surgery undergone by the plaintiff, I agree that an award of about $2,000 is reasonable. 90.Thus, the appropriate award in this case for special damages should be HK$16,650. E10. Summary of monetary award 91.In summary, the award I make in favour of the plaintiff under the various heads of damages claimed is as follows:
E11. Interest 92.There will be an award of interest on damages for PSLA at 2% from the date of the writ (being 27 June 2014) to the date of judgment. 93.As for the damages for pre-trial loss of earnings and other special damages, interest will be awarded on those damages at half the judgment rate from the date of the accident until the date of judgment. E12. Credit for employees’ compensation award 94.It was common ground that the plaintiff should give credit for employees’ compensation received by him in the sum of HK$543,870. F. DISPOSITION AND COSTS 95.Although I have found in favour of the plaintiff on the issue of liability, since the total amount of damages I have awarded, even including the relevant elements of interest, is less than the sum of employees’ compensation for which credit must be given, it follows that the action must be dismissed. 96.I make an order that the plaintiff do pay the 1st defendant’s costs of the action, to be taxed if not agreed. I make no order as to costs as between the plaintiff and the 2nd defendant. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. 97.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same. 98.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.
Mr Victor Cheung, instructed by Messrs ONC Lawyers, for the plaintiff The 1st defendant was absent Mr Timmy CH Yip, instructed by Messrs Gallant, for the 2nd defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case