Lai for Yau v. Gammon Construction Ltd
Read the full judgment text of DCPI 2576/2019 on BabelCite. This District Court judgment was delivered on 11 August 2022.
1. This is a personal injury case involves a plaintiff who worked for the defendant and met with an accident at work on a construction site managed by the defendant.
Cited by 1 case · Cites 26 cases
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DCPI 2576/2019 [2022] HKDC 858 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2576 OF 2019 --------------------------- BETWEEN
--------------------------- Before: His Honour Judge Andrew Li in Court Dates of Trial: 3 to 4 & 13 May 2022 Date of Judgment: 11 August 2022 -------------------------- JUDGMENT -------------------------- INTRODUCTION 1.This is a personal injury case involves a plaintiff who worked for the defendant and met with an accident at work on a construction site managed by the defendant. BACKGROUND 2.The plaintiff was 53 years old at the time of the accident and is now 59. He had been employed by the defendant since October 2015 until the date of the accident. 3.On 5 August 2016, the plaintiff was instructed by the defendant to work at a construction site situated at 780, Cheung Tung Road, Sunny Bay, Lantau Island (“the Site”). 4.The defendant was the main contractor responsible for the Site and the plaintiff was employed by the defendant as a rigger on the Site. The Accident The plaintiff’ pleaded case 5.According to the plaintiff’s case, on the date of the accident, the plaintiff was instructed by his superior “Lap Gor” (“Brother Lap” / 「立哥」) (“Lap Gor”), the defendant’s foreman, to transport a large water tank from the steel-bar bending area (where a number of water tanks had been stored) to the seafront loading/unloading area of the Site. The 2 locations were both situated within the Site and were about 20-minute drive apart. It had been raining heavily for a few days before the occurrence of the accident. 6.After the particular water tank had been loaded onto the back of a crane lorry, the plaintiff took a photo of the water tank and sent it via WhatsApp to Lap Gor as instructed. The plaintiff also informed Lap Gor that he had noticed some rainwater accumulated inside the other water tanks. 7.He was then instructed by Lap Gor to climb on top of the water tanks to take photos of the inside of those water tanks and to send the photos to him for the purpose of assessing whether they could be moved by the lorry without draining off the water first. 8.According to the plaintiff, he told Lap Gor that the water tanks were very tall and had specifically asked for a ladder. However, he was told by Lap Gor that none was available. The plaintiff also tried to look around for a ladder with a Napalese co-worker who was working with him at the time. But they were not able to find one. 9.The plaintiff then climbed up to the top of one of the water tanks (which was about 9.5 feet or 3 metres in height) and took photos of inside of 2 of the water tanks. 10.After the plaintiff had taken the photo of the second water tank, he lost his balance and fell onto the ground from the top of the water tank where he was standing on. He sustained serious personal injuries as a result (“the Accident”). The defendant’s pleaded case 11.The defendant puts the plaintiff to strict proof of the occurrence and the circumstances of the Accident. 12.According to the defence filed, the defendant basically contends that:
Issues on liability to be determined 13.Based on the above pleaded case of the parties, the factual issues which need to be determined by the court on liability will include the follows:-
14.Depending on the findings of the court, the questions to decide will then include whether the defendant was (i) in breach of its common laws duties of care under tort and contract; and (ii) in breach of any statutory duties. 15.If the defendant is found to be liable, there will also be the issue of contributory negligence on the part of the plaintiff to be determined. 16.In relation to quantum, the court has to decide the following issues:-
DISCUSSION LIABILITY The plaintiff’s evidence 17.The plaintiff’s case is simple and straightforward. In essence, the Plaintiff was instructed by his direct supervisor Lap Gor (who was undisputed to be the defendant’s foreman) to climb up on top of some large water tanks to take photos. He fell down from the top of one of such water tanks after taking 2 photos pursuant to the said instructions. 18.At the outset of the trial, leave was granted to the plaintiff to amend his reply dated 1 September 2020 to clarify the plaintiff’s case that he was initially instructed to transport one water tank and he was then instructed by Lap Gor to take photos of the other water tanks. 19.The plaintiff was the only witness for his case at trial. He adopted his first witness statement dated 23 February 2021 (“P’s WS”) and his supplemental witness statement dated 16 September 2021 (“P’s Supp WS”) as his evidence-in-chief, which was subject to the following clarifications / changes:–
20.In my view, the plaintiff’s testimony as to how he took the 2 photos of the water inside the 2 water tanks (which photos were exhibited to P’s WS) was clear and unequivocal. There was no indication of any attempt of exaggeration or disingenuous bolstering of his case. He simply presented the facts as he knew them to be. In fact, there was no challenge at all during cross-examination about this aspect of his evidence as to how he climbed to the top of the water tank depicted in the photo produced at [5/G/1226] which was marked as “P’s Exhibit No 1” (“P-1 Photo”) without any working platform or ladder being provided to him by the defendant. 21.I find the plaintiff’s case and his evidence wholly credible and inherently probable. In my view, he gave his evidence in a frank and direct manner, without any hint of exaggeration or embellishment. I have no hesitation in accepting his evidence in regard to how the Accident happened. 22.It is to be noted that the defendant has not produced Lap Gor to give evidence at the trial. The only witness they tendered is Mr Ng Hui Hang (“Ng”), the senor safety officer of the Site at the time of the Accident, who was DW1 in this case. However, Ng has no direct knowledge about the Accident itself. Whatever he knew was obtained through a person called Marco Cheng (“Marco”) who was the immediate superior of Lap Gor. Instead of trying to find out about the details of the Accident directly from Lap Gor, Ng chose to enquire and obtain the information from Marco only. His evidence therefore at best is hearsay and at worst can be regarded as unreliable. Factual findings on the Accident Findings on the plaintiff’s case 23.I make the following factual findings, which are based on the plaintiff’s evidence and the contemporaneous documents / photos produced by the parties:-
24.I accept the plaintiff’s evidence above as they are well supported by the contemporaneous evidence which included:-
25.In my judgment, the above objective and contemporaneous evidence point very clearly to the direction that the plaintiff could not have sustained such serious head injuries by simply “slipped and fell” on level ground while walking as the defendant claims. I have no hesitation to dismiss such inherently improbable and wholly unsubstantiated allegation. 26.Mr C K Wong, counsel for the defendant, cross examined the plaintiff extensively on the height he estimated he had fallen which was based on the information the plaintiff had supplied to the doctors at the public hospitals. The medical notes recorded the estimates given varied between 1.2 and 1.5 metres. While the estimates could not be correct as it is not disputed that the top of the water tank was about 3 metres (or 9.5 feet) in height, all the medical notes (except the initial A&E admission at TMH) recorded that he had “fell from height” and not “slipped and fell” on level ground. 27.As the evidence transpired during the trial, the plaintiff who came from a fishing family and who had only received a few weeks of primary school education, was totally unfamiliar with the metric system and in fact measuring units in general. He could not even tell what his own height is, whether in metric or imperial measurements. I find the plaintiff was honest when he told the court that he did not know his own height in feet or metres. I also find him truthful when he said he told the doctors that the height he had fallen from was “about a container tall” (「好似貨櫃咁高跌落嚟」). While he was not able to tell the doctors the exact height of the water tank when he attended the medical appointments, it does not, in my view, mean that he had not fallen from the top of the water tank at all. 28.Given the fact that the defendant has not put forward any positive evidence to show that the plaintiff did not fall from the top of the water tank, I do not consider the inaccurate estimates that he had previously given to the doctors would in any way distract from the fact that he had fallen from the top of the water tank. 29.In the aforesaid circumstances, I accept the plaintiff’s evidence on how the Accident happened. Despite the very vigorous and thorough cross-examination undertaken by Mr Wong on behalf of the defendant, I find the plaintiff’s account to be perfectly plausible and inherently probable. They are also well supported by the contemporaneous evidence in terms of the 2 photos taken immediately before his fall. I much prefer his evidence and the account of events given by him than the unsubstantiated version put forward by the defendant. Findings on the defendant’s case 30.At the trial, the defendant essentially put the plaintiff to strict proof of his case. Although Mr Wong has very fairly conceded that the defendant was not going to advance any positive case at the trial, I note that this was not the defendant’s original position and certainly was not its pleaded case. The defendant’s pleaded case was:-
31.Ng, who was the only witness called by the defendant at the trial, clearly has no direct or personal knowledge of the above matters. As said, Lap Gor was not called to give evidence and no explanation was given other than the causal mention by Ng during his evidence that Lap God had left the employment of the defendant. No explanation was given by the defendant, through its counsel or solicitors, as what efforts, if any, it had made in order to secure Lap Gor to provide a witness statement or to give evidence at trial. 32.The same applies to Marco. Despite the fact that Ng has stated in his witness statement that Marco had left the employment of the defendant in or around February 2018 and allegedly could not be contacted, it has not been mentioned by Ng of what steps, if any, had been taken by the defendant to try to locate Marco in order to secure him to provide a statement or to give evidence at the trial. 33.Given the fact that both Lap Gor and Marco are crucial witnesses to the defendant’s case, I am entitled to and will draw an adverse inference against the defendant for failing to secure them to give evidence at the trial. I find that the main reason of failing to call those two crucial witnesses at trial is that the defendant knows well that their evidence will be at odds with the photos and the contemporaneous documents. It must also realize that both Marco and Lap Gor are unlikely able to offer any plausible explanations for the serious injuries sustained by the plaintiff if he had only slipped and fell on the ground level. Ng’s evidence not credible 34.Ng was the senior safety officer of the defendant at the time of the Accident and is now its divisional safety manager. He did not witness the Accident himself nor had Marco, who was the superior of Lap Gor, the person who allegedly had reported the matter to him. Ng only learned about the version of the plaintiff having “slipped and fell” on level ground while walking back after the lifting operation of the water tank to the vessel from Marco. 35.I do not find Ng’s evidence on the defendant’s version of event believable at all for the following reasons:-
36.Based on the above, I have no hesitation to reject the evidence of Ng and the version of events regarding how the Accident happened put forward by the defendant in its defence. Findings on the defendant’s liability Breach of defendant’s common law duties 37.The plaintiff submits that the defendant is liable for the breaches of its common law duty of care under both tort and contract as owed to the plaintiff. 38.It is trite and uncontroversial that the defendant, as the plaintiff’s employer, owes a duty at common law to take reasonable care of his employee’s safety while the latter discharges his work: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 per Bokhary PJ at §§1&24. 39.A reasonable employer is under a continuing obligation to provide proper plant and appliances, including all such tools, equipment and machines, which an employee would need to use in order to do the work required: Charlesworth & Percy on Negligence, 14th ed, at [12-56]. 40.An employer (the defendant) would also be vicariously liable for the tortious act of its employee (Lap Gor in this case): Charlesworth & Percy on Negligence, 14th ed, at [7-14]. 41.In essence, the plaintiff’s case is that the defendant breached its common law duty, through its foreman, Lap Gor, by instructing the plaintiff to take photographs of the water tanks when it was unsafe for him to do so and failing to provide a safe place and system of works for the plaintiff to perform the said task in a safe manner: (see §5 of statement of claim (“SoC”) at [1/A/6-7]). 42.The defendant also failed to provide the plaintiff with the necessary equipment, such as a suitable ladder or working platform, to perform the task of taking photographs at height, the defendant also effectively forced the plaintiff to work under an unsafe system and in an unsafe workplace. 43.In Tamang, Tikaram v Tong Kee Co Ltd & Ors (unrep, HCPI 19/2013, 1 April 2015), the plaintiff therein suffered injuries after having fallen onto the ground while standing on a stool to erect and fix aluminum formwork about 2.8 metres above the ground at the external wall of a balcony. DHCJ Paul Lam SC expressed no difficulties in finding the defendants negligent in failing to provide a suitable working platform to the plaintiff and by causing or permitting him to do the job by standing on the stool. 44.Similarly, in Yu Pun Yuen v Ng Kwok Man T/A East Mountain Engineering Co & Ors (unrep, HCPI 293/2002, 9 May 2003), Suffiad J held the defendant breached its duty to provide a safe system of work where he only provided a ladder of about 6 or 7 feet tall to the plaintiff who had to work on an engine outlet that was some 9 feet from the ground. 45.A fortiori, in not providing any ladder or platform to the plaintiff at all, I am of the view that the defendant was in clear breach of its duty of care towards the plaintiff. Breach of statutory duties on the part of the defendant 46.Apart from the common law duties, I also find the defendant was in breach of the following statutory duties as submitted by the plaintiff’s counsel:–
Contributory Negligence 47.The defendant pleaded that the plaintiff was contributorily negligent in causing the Accident. 48.It is trite that the burden of proving contributory negligence lies with the defendant who raised the issue: See Clerk & Lindsell on Torts, 23rd ed at [3-98]. 49.I agree with Mr Ho for the plaintiff that the defendant’s case on contributory negligence was vaguely pleaded and without focus. It was not until the cross examination of the plaintiff by Mr Wong that the defendant’s case on contributory negligence started to emerge. And it was not until the closing submissions that its case on contributory negligence has finally developed. 50.Mr Wong cited the cases of Li Kwok Kee v China HK Wah Kee Limited (unreported, HCPI 477/2013), Lan Yam Kan v Ng Poi Kuen trading as Wing Sing Scaffolding Engineering & Anor, HCPI 196/2014, unreported (15 March 2016; Deputy High Court Judge Paul Lam SC) and Cheung Wai Kar v Dragon Kings Development Limited trading as Fomour (Dragon Kings) Restaurant [2019] HKCFI 3114, (DHCJ Sherrington) as authorities to say why the plaintiff should be held 30% in contributory negligent in the defendant’s view. 51.Mr Wong spent quite some time questioning the plaintiff as to how he rigged the initial tank for loading onto the lorry crane, the gist of such line of questioning is to put to the plaintiff that he could have adopted the same position to take the photographs of the water tanks. 52.During cross examination, the plaintiff explained in detail the process of loading a large water tank onto the crane lorry. In essence:–
53.Mr Wong sought to establish that in adopting the position he was in when rigging the tank, the plaintiff could have photographed the water level inside the tank as he could see it with his eyes. 54.Once he understood Mr Wong’s question, the plaintiff agreed that when he was in the position of rigging the tank he was able to view the bottom of the tank and, if he raised his head to look up, he could see the top edge of the tank that was opposite him. 55.However, the plaintiff repeatedly explained that in order to allow the foreman to assess the depth of the water, he would need to capture both the water level and the top of the tank in his photograph so that a comparison can be made. This is particularly so because the water inside was too opaque to see the bottom of the tank. 56.I accept the plaintiff’s explanations above and consider that as inherently probable and accord to common sense. In my judgment, what he did was to try to make the best out of the situation and the perilous working surroundings and to do what his superior Lap Gor had specifically instructed him to do. 57.The plaintiff explained that he could only take a photograph capturing both the water level inside the tank and the top edge of the tank if he leaned back however it was impossible to do so if he adopted the aforesaid “frog-like” stance as he needed to maintain his chest pressed against the side of the tank for support and could not lean back. If he maintained his stance of leaning his chest against the tank, he would not be able to photograph both the water level inside and the top of the water tank in the same frame. 58.In my judgment, that is a perfectly plausible explanation, especially given the fact that the scene that one can see with his naked eyes would be quite different from what one can capture by way of the camera. In this respect, I agree with Mr Ho’s submission that how much can be captured by the phone-camera would very much depend on the then posture which the plaintiff was permitted to adopt to grab hold of the phone and the camera angle width. 59.The plaintiff also explained he could only capture both the water level inside and the top of the water tank if he stood straight when he was at the first horizontal ledge (counting from the top) and if he leaned backwards. I agree with Mr Ho that such posture would be way too dangerous as the top of the tank would be around his knee level and he would have nothing to grab onto nor lean against for support. It is also observed from P-2 Photo that the horizontal metal plate protruding outside the wall of the water tank was quite narrow and could only provide quite limited foothold for him to stand on safely. That is also the reason why he needs to press his chest against the top edge of the tank to rig the ‘ear’ in the first place. 60.Thus, if it is the defendant’s contention that the plaintiff was contributorily negligent for not photographing the water tanks in the position he was in when rigging the first tank, I agree with the plaintiff that there is only the unchallenged evidence of the plaintiff that it was not possible to do so adopting the safer “frog-like” safer stance or it would be way too dangerous to perform if he stood straight up. In either case, I am of the opinion that the defendant’s contributory negligence contention cannot be seriously maintained. 61.In terms of causation, I further accept Mr Ho’s submission that the defendant has also failed to show that if any of its suggested alternative method to take photo was adopted by the plaintiff, the Accident could have been avoided. From such perspective, I agree that the defendant’s argument is also bound to fail. 62.In this regard, the commentary set out at [4-20] in Charlesworth and Percy on Negligence (14th ed) is pertinent:-
63.Last but not least, in response to the query raised by the court, the plaintiff confirmed that he took the photographs not because he wanted to know for himself but because he was instructed to do so to allow Lap Gor to assess the water level inside. In other words, he was merely doing what he was specifically instructed by his superior to do. In my judgment, he should not be judged too harshly because he happened to choose a method which was only found out to be unsafe with hindsight. 64.For completeness sake, it has never been the defendant’s pleaded case that it would be both practicable and safe for the plaintiff to take photo of the water level inside. No evidence was produced by the defendant to that effect or along that line either. There is thus nothing from the defendant to effectively challenge or counter the plaintiff’s evidence that it was impracticable and/or dangerous to take photo in the way as the defendant suggested. Especially, the plaintiff was the one who actually took the photo at the scene and he would be in the best position to perceive the then physical setting before him at all material times. 65.In the present case, the plaintiff was not provided with the necessary safety equipment, ie a working platform or at least an appropriate ladder, to perform the work. Without any suitable equipment (such as suitable working platform) being provided by the employer to enable him to discharge the subject task safely (despite he had asked Lap Gor earlier for it but was turned down), he was effectively forced by the defendant to work under an unsafe system, hence, the court should be slow to attribute any contributory negligence on the plaintiff in such circumstances. 66.In Lam Fung Ying v Lui Kwok Fu (unrep, HCPI 826/2002, 26 February 2004) per Sakhrani J at §58:-
67.In Wong Woon Hei v Dickson Construction Co Ltd (unrep, HCPI 521/2000, 3 July 2001) per DHCJ Muttrie at §20:-
68.In our present case, the plaintiff was prevented from doing the work in the way in which he would have preferred to do by reason of the defendant’s breach in providing him with the proper equipment (ie safety ladder or working platform) and he followed Lap Gor’s instructions not because he was saving himself trouble but simply to get on with D’s business: Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716 per McNair J at 721F-G.
69.Lastly, in Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102, Tang VP observed at para 35:–
70.Mr Ho submits that Tang VP’s observations is just as apposite in the present case when the plaintiff despite having requested for safety equipment was told there was none and instructed by his direct supervisor to perform the task regardless. Realistically, he still had to carry the job to take photo of the water inside the water tanks as per Lap Gor, or else he would be at risk of losing his employment as recognised by both Hong Kong and English Court. For his own safety protection, notwithstanding Lap Gor’s reply, he still tried to look for ladder at the site with the Nepali co-worker before he climbed the water tank, but unfortunately to no avail. At the time of Accident, the plaintiff also wore safety helmet and safety shoes. All these evidence of the plaintiff were not challenged by the defendant at trial. 71.I accept Mr Ho’s submissions above and find the plaintiff had done his best in the circumstances in trying to comply with his superior’s instructions in a highly dangerous environment. Findings on contributory negligence 72.Given the fact that the plaintiff had been specifically instructed to take photos of what was inside the water tanks by his superior Lap Gor in order to ascertain whether they could be transported by the crane lorry without draining the accumulated water, there was nothing wrong in my view for the plaintiff to climb up on top of the water tanks to take the photos. He did ask for a ladder and was not given one. He did try to locate a ladder nearby with his co-worker but could not find one. He was basically left to his own device and not given any proper instructions or means to carry out the task in a safe manner. He was in a totally unfamiliar and dangerous environment and trying to undertake an unfamiliar and dangerous task. He did the best he could. In my view, he should not be judged too harshly for doing something in pursuant to his employer’s interests whatever responsibility he had, it should be small in companion with that of his employer. 73.Balancing all the above factors, I find 10% contributory negligence on the part of the plaintiff in this case. QUANTUM Injuries and treatments received 74.Immediately after the Accident, the plaintiff was sent to see Dr Or, one of the doctors on the defendant’s panel, for consultation. 75.Thereafter, on the same day, the plaintiff attended the Accident & Emergency Department (“A&E”) of Tuen Mun Hospital (“TMH”) where it was revealed that he had a blood-stained tympanic membrane and he was admitted to the neurosurgical ward. The plaintiff had no loss of consciousness, but had some blood discharge from his right ear. He also complained of right wrist pain and right ear discomfort afterwards. 76.On physical examination, there was right ear haemotypanum and tenderness over right distal ulna. The right wrist was immobilized in a plaster cast while physiotherapy and analgesic medication was prescribed. During the hospitalisation, the plaintiff had complained of low back pain (5 August 2016), bilateral blurring of near vision (8 August 2016), pain at his neck as well. 77.The plaintiff was hospitalised for 5 days and was discharged on 10 August 2016. 78.After his discharge from the hospital, the plaintiff attended regular follow-ups at the Departments of Neurosurgery (“DoN”), ENT and Orthopedics & Traumatology (“O&T”) of TMH. By the time of attending the joint examination by the psychiatric experts in September 2020, he was still attending follow up treatment at the DoN clinic and ENT clinic about once every 3 to 4 months. 79.Regarding the DoN and ENT follow ups:-
80.Apart from having partial hearing loss with tinnitus after the Accident, he also had recurrent dizziness, which was controlled by oral medication as observed by the neurosurgeon experts. The tinnitus also caused him headache. Since 27 November 2019, the plaintiff began wearing a hearing aid. Both ENT experts was in agreeing in attributing 5.3% for the plaintiff’s binaural hearing impairment and another 5% for presence of tinnitus, giving a total of 10.3% for such hearing impairment, which is translated to 4% impairment of whole person. 81.As for the orthopaedic aspect, the plaintiff attended the first O&T follow up on 22 September 2016, and he was treated conservatively with physiotherapy and regular analgesics. The plaintiff received 54 sessions of out-patient physiotherapy from 11 August 2016 to 9 January 2017 (30 sessions) and physiotherapy treatments for his neck, low back, right wrist, elbow and shoulder from 2 May 2017 to 6 December 2017 (24 sessions) at TMH’s physiotherapy department. 82.The initial clinical findings at the 1st referral of physiotherapy in August 2016[1], the plaintiff reported, amongst other things, that:-
83.Upon the final discharge from physiotherapy in December 2017, it is noted, amongst others, that:-
84.The plaintiff received 20 sessions of occupational therapy from 16 November 2016 to 14 June 2017 at the Occupational Therapy Department (“OTD”) of TMH. Despite the sessions, he was ranked as not match with job demands and at discharge his progress was static. 85.As for the psychiatric aspect, the mood deteriorated about one month after injury. He had low mood that disturbed sleep and had increased irritability and social withdrawal. On 19 December 2016, the plaintiff first attended the clinic of Castle Peak Hospital (“CPH”) and continued regular follow-up thereafter. His mood was fluctuating so titration of anti-depressants was necessary to stablise his mood. His poor sleep was treated by hypnotics. His psychiatric condition had once been worsened to the extent that he was admitted to CPH in August 2018. He was diagnosed to have suffered from moderate depressive episode and hospitalised there for 8 days. The plaintiff was diagnosed with adjustment disorder. A summary of the development of his psychiatric symptom and the psychiatric consultations received can be found in the Joint Psychiatric Report. 86.Owing to exacerbation of pain at the injured sites, and the worsening of his ear problem, the plaintiff also attended A&E of TMH, Pok Oi Hospital (“POH”) and Tin Shui Wai Hospital (“TSWH”) on multiple occasions. They are summarized as follows:–
87.As a result of the accident, the plaintiff is no longer able to play his favourite sport of football and he is unable to lift heavy objects with his right hand. 88.The plaintiff was granted sick leave from 5 August 2016 until 25 August 2018 (a total of 24 months and 20 days) as certified by the Medical Assessment Board (“MAB”) to be necessary under the Form 7 issued on 2 October 2018. In the same Form 7, the MAB also certified the plaintiff has suffered multiple injuries resulting in:-
Expert’s opinions 89.The plaintiff has been jointly examined by experts appointed by the parties from 4 different medical disciplines. 90.The plaintiff was jointly examined by:–
91.I am grateful to Mr Ho for the plaintiff who has very succinctly summed up the experts’ opinions in his opening submissions of which I shall adopt with appropriate modifications below. Joint orthopaedic expert report 92.The orthopaedic experts Dr Johnson Lam and Dr KC Lam agree that the accident resulted in multiple injuries to the plaintiff. 93.They also agree that the injuries include:–
94.Dr Johnson Lam opines that the soft tissue injuries to the neck, back and right wrist are considerable and residue pain and impairment is expected. 95.These injuries as caused by the accident also rendered the pre-accident asymptomatic conditions at these injured sites symptomatic. 96.The physical examination by both experts revealed, among other things, that:-
97.Both orthopaedic experts consider the treatment received by the plaintiff, including medication and physiotherapy, was appropriate. 98.The orthopaedics experts differ in their opinions as to whether the plaintiff can return to his pre-accident job:-
99.It is worth noting that Dr KC Lam attributes the plaintiff’s complaints in respect of his neck, right wrist, and back problems be largely related to the degenerative status of the cervical spine and right wrist and the lumbar spine. 100.However, Dr KC Lam could not really dispute with Dr Johnson Lam’s view that the plaintiff’s pre-existing neck/right wrist/back conditions were all asymptomatic, which were however rendered symptomatic by the Accident. 101.Significantly, Dr Johnson Lam explained that the plaintiff’s functional capability to cope with the work demand of a rigger before the accident indicates that, clinically and functionally, it is likely he enjoyed painless and satisfactory function in his neck, right wrist and low back before the accident. Likewise, Dr KC Lam did not dispute Dr Johnson Lam’s opinion on this matter. 102.Dr Johnson Lam pointed out (which again is not disputed by Dr KC Lam) the following objective parameters:–
103.Dr Johnson Lam considers that the plaintiff’s pre-existing condition is between scenarios 1 and 2 as identified in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 at 963E-G and further estimated that the Accident should contribute about 80% to the residue pain/impairment in the plaintiff’s neck, back and right wrist, and the pre-existing degeneration should contribute about 20%. 104.Overall, I prefer Dr Johnson Lam’s opinions than that of Dr KC Lam’s opinions in this case as it seems to me that they are more consistent with the plaintiff’s medical history and treatments received by him at the public hospitals and clinics. They are also consistent with the clinical picture presented by the plaintiff throughout the pre-trial period. 105.I accept Mr Ho’s submission that it would be appropriate to make a 15% discount (not 20% as opined by Dr Johnson Lam) as attributable to his pre-existing condition to the PSLA award by taking into account of the plaintiff’s overall condition. Joint neurological expert report 106.The neurological experts commented that the plaintiff was cooperative and forthcoming and gave a detailed account of the events, his symptoms and his disabilities. 107.It was common ground that:-
108.Dr Yu instructed by the plaintiff considers that the plaintiff has post-concussional syndrome as supported by the neurological symptoms of headache, dizziness, subjective impairment of memory, withdrawal and sleep disturbance as related to the two experts (and both of them did not doubt the genuineness of these symptoms). 109.On the other hand, Dr Woo who examined the plaintiff on behalf of the defendant notes that the plaintiff’s neurological examination is normal and there is no cognitive, emotional, vestibular or physical deficit. And yet, Dr Woo did not seem to have disputed with Dr Yu that the neurological symptoms experienced by the plaintiff are indeed indicative of post-concussional syndrome. 110.Oddly, Dr Woo nonetheless remarked that the plaintiff only suffered superficial scalp injury at the head while conveniently ignoring or downplaying the head injury also brought about bleeding in his right ear and hearing loss and the soft tissue injury to the neck which Dr Woo had earlier acknowledged in the JNR. 111.Finally, whereas Dr Yu considers an appropriate period of 6 months to achieve maximum recovery for mild head injury with post-concussional syndrome and further minor improvement may take place in another 6 months, Dr Woo considers these 2 recovery periods for a superficial scalp injury are 1 month and 3 months respectively. 112.I consider Dr Yu’s opinions to be more objective and balanced while Dr Woo’s opinions seem to be a little bit more bias. I prefer Dr Yu’s opinions as set out above. Joint ENT expert report 113.The otorhinolaryngology experts Dr Au Wing Wah (for the plaintiff) and Dr Lo Siu Sing (for the defendant) agree in their joint ENT expert report on the following:–
114.There is no difference in the opinions of the ENT experts. I accept their opinions as stated in the Joint ENT Report. Joint psychiatric expert report 115.The psychiatric experts agree that the plaintiff suffers from an adjustment disorder caused by the Accident. 116.There is also consensus between the experts that in addition to physical symptoms, the plaintiff has other ongoing stressors, likely including the impaired ability at work, the associated financial issue and strain, and the present litigation and compensation issues. 117.Dr Lai further explains that a person with anxiety and/or depression has heightened awareness and attention to somatic symptoms and increased sensitivity to the sensation caused by an underlying physical pathology, which is compatible with the plaintiff’s anxiety and/or depressed mood accentuating his sensation of pain and attention to somatic symptoms and contributing to the degree of pain when he was worse in his psychiatric symptoms. 118.Dr Lai opines the plaintiff currently is likely suffering from minor psychiatric symptoms, whereas Dr Lai considers the plaintiff probably suffered mild to moderate degree of mental symptoms. 119.The experts disagree on the reasonable duration of sick leave, further treatment and the estimations of the mental impairment. 120.Dr Lai considers the treatments received by the plaintiff in the past three and half years of psychiatric treatment is appropriate with some improvement and fluctuation of his symptoms having been reported. 121.He is of the view that the plaintiff should continue further treatment in the public psychiatric clinic at an average frequency of once in six to eight weeks for the later of (i) another six to nine months; or (ii) six months after conclusion of the present litigation. 122.On the other hand, despite Dr Law’s comments that P’s “stressors are the residual physical problems, out of work, financial strain and the compensation issues”, he considers that treatment can and should be terminated with medications tapered off. 123.On the question of medication, Dr Lai highlighted the fact that when the plaintiff was seen at CPH on 13 August 2020, he was still prescribed 7.5 mg of the sleep medicine Zopiclone (which is at the top end of the usual dosage), 45 mg of the antidepressant Mirtazapine (which is at the top end of usual dosage), 50 mg of the antidepressant Desvenlafaxine, 50 mg of the antihistamine used for treating insomnia Promethazine, (which is a mild to moderate dose) and 0.25 mg of the anti-anxiety medicine Alprazolam, the latter two on an “if necessary” basis. 124.As to prognosis, both Dr Law and Dr Lai noted that the symptoms of adjustment disorder depend on the development or resolution of its stressors. Dr Lai is of the view that it is likely the plaintiff will have minor residual psychiatric symptoms after completion of further treatment and conclusion of the present litigation, whereas Dr Law consider the prognosis of the adjustment disorder to be “good”. 125.Regarding the sick leave from psychiatric perspective, Dr Lai considers a period of 6 to 9 months should be given when he was in worse psychiatric condition whereas Dr Law considers 3 months after the first consultation to be reasonable, noting that it is an adequate period to establish a treatment plan and for medications to take action. 126.Despite Dr Law’s view on this matter, the medical report prepared by Dr Siu Chiu Ming (“Dr Siu”) of CPH dated 24 March 2017 mentions that the plaintiff’s mood was fluctuating during the regular clinic follow-ups such that titration of antidepressants was necessary to stabilise his mood. 127.The difference between the 2 psychiatric experts are not that significant. However, having considered both of their opinions, I prefer Dr Lai’s opinion as they seem to me to be more consistent with the psychiatric history, complaints, symptoms and treatments of the plaintiff. Percentage of whole person impairment 128.For the orthopaedic injuries, Dr Johnson Lam for the plaintiff assessed the percentage of the whole person impairment (“WPI”) at 10.5% and Dr KC Lam for the defendant assessed it at 6%. 129.For his neurological injuries, Dr Yu for the plaintiff assessed the WPI at 2% while Dr Woo for the defendant assessed it at 0%. 130.Both ENT experts agreed the WPI at 4%. 131.In terms of his psychiatric injuries, Dr Lai for the plaintiff assessed the WPI at 5-7% while Dr Law for the defendant assessed it at 1%. 132.No matter how one looks at it, in my judgment, the combined level of WPI of 4 different medical disciplines is significant. It varied from a combined total of 11% assessed by the defendant’s experts to as much as 23.5% assessed by the plaintiff’s experts. 133.Given the fact that I prefer the plaintiff’s experts in the 3 disciplines where there are significant differences in their opinions and accept the agreed opinions agreed by the ENT experts, the overall WPI in my view is high and should not be ignored. Pre-existing condition 134.There is no dispute that the plaintiff as someone who had been working at various manual labouring jobs prior to the Accident did suffer from pre-existing degenerative changes at his neck and back. He also suffered from pre-existing degenerative changes at his right wrist. However, what cannot be disputed is the fact that they were either asymptomatic or minimally symptomatic. 135.In this regard, I prefer Dr Johnson Lam’s opinion on the reason as to why even if the plaintiff develops symptoms as a matter of natural progression, the pain or impairment is likely to be mild and occasional. Dr Johnson Lam’s opinion has been summarized at p 45 §162 of the JOR and I shall not repeat them here. 136.In my view, Dr Johnson Lam provided his well-reasoned expert opinion why the pre-existing degenerative changes at the plaintiff’s neck, back and right wrist were asymptomatic or minimally symptomatic. He gave further expert opinion that even if the plaintiff develops symptoms as a matter of natural progression, the pain or impairment is likely to be mild and occasional:-
137.Based on the above reasoning, Dr Johnson Lam opined that the plaintiff’s degenerative changes fell between scenarios 1 and 2 of the 3 scenarios in Chan Kam Hoi, supra and the pre-existing degeneration should contribute about 20% to the residue pain or impairment in the neck, back and right wrist. 138.On the other hand, Dr KC Lam pointed out that there was evidence of degeneration in the neck/back/right wrist although he could not explain satisfactorily why the plaintiff would still develop similar pain before he reaches 60 (even without the Accident) and why the Accident has contributed to half (50%) of the present disability according to his estimate. As said, I would allow a 15% discount in this case. 139.I accept that the view of Dr Johnson Lam on this matter as it seems to be more well-reasoned and balanced. I prefer his opinion on the percentage of discount than that of Dr KC Lam’s. Sick leave period 140.The plaintiff submits that a reasonable sick leave period for this case should be from the date of the Accident ie on 5 August 2016 to 25 August 2018, a total period of 24.7 months which was endorsed by the Medical Assessment Board in the Form 7. 141.Dr Johnson Lam opines that the duration of the sick leave issued by the plaintiff’s treating specialists / doctors who assessed him from time to time is appropriate and should be endorsed. 142.Dr KC Lam on the other hand considers sick leave of 12 months should be given only. 143.In my view, the sick leave given by the treating doctors which was endorsed by the medical assessment board is reasonable in light of the fact that the plaintiff has sustained multiple injuries in this case which required treatments from doctors from different specialties in the public hospitals, including psychiatric and psychological treatments. 144.With respect to Dr KC Lam for the defendant, his estimate of 12 months of sick leave has not taken into account of the fact that the plaintiff was still undergoing regular physiotherapy and occupational therapy treatments respectively until August 2017 and May 2018. It also failed to take into account of his sudden onset of severe low back and neck pain which required a couple of visits to the A&E in TSWH and POH. On those occasions, injection of pain killers were required in order to relief his pain. Besides, significant back pain (which affected his sleep) during the period of April 2017 and May 2018 had been recorded in the JOR. 145.Given the above, I consider a reasonable sick leave in this case should be as those given by the treating doctors at the public hospital, ie from the date of Accident up on 5 August 2016 to 25 August 2018. 146.On top of that, I would allow an extra 3 months as a reasonable period for the plaintiff to find a job, given his age and very limited education. 147.I therefore would allow a total sick leave of 27.7 months in this case. Pain, Suffering & Loss of Amenities (“PSLA”) 148.On PSLA, Mr Ho for the plaintiff has invited me to pay particular regard to the following factors in this case:-
149.Mr Ho drew the court’s attention to the following authorities in support of his claim of PSLA in the sum of HK$400,000:-
150.By July 2017 when David John Slater v Commissioner of Police (unrep, HCPI 646/2012, 7 July 2017) was decided, the starting point for lower range for serious injuries category was adjusted by Bharwaney J to HK$530,000. 151.Later, in Ng Tat Kuen v Tam Che Fu & Ors [2019] 4 HKC 533 (at §§91 to 96), the learned judge also reviewed the appropriate inflationary adjustments made at different stages since 1996 (when Chan Pui Ki was decided) up to 2017 (when the learned judge gave the judgment of David John Slater v Commissioner of Police). 152.In Yu Chun Kit v Wong Wing Yau (formerly trading as Viewbond Cargo Service Co) [2021] 3 HKLRD 938, DHCJ Raymond Leung SC followed David John Slater but further took into account the increases in Consumer Price Index (“CPI”) from June 2018 to April 2021, and held the present starting point of PSLA award for the “Serious Injury” category should be HK$569,000 (see §34). 153.By way of comparison, the learned Deputy High Court Judge also made reference to Chan’s Tables 2019 (at p 65) which gives the range of awards for PSLA under the “Serious Injury” category from HK$548,000 to HK$740,000. 154.Therefore, by making similar adjustment to the PSLA awarded granted in the case of Tang Chi Keung, supra, Mr Ho submits that the adjusted PSLA award (before taking into discount for pre-existing conditions) in that case should now be adjusted to around HK$430,000. Likewise, the PSLA award in Wong Kai Fun should be adjusted from HK$480,000 to around HK$520,000. 155.In light of the similarities of the injuries suffered by the plaintiff in this case as compared with the plaintiff in Tang Chi Keung (though the plaintiff in this case suffered additionally the partial hearing loss and significant psychiatric symptoms (which features were absent in Tang Chi Keung)), Mr Ho submits that PSLA in the plaintiff’s case should fairly and reasonably fall within the range between HK$430,000 and HK$520,000. Taking the mean between these two figures, the plaintiff submits that it will yield a sum of HK$475,000. 156.Applying the discount of 15% attributed for his pre-existing condition to HK$475,000, the plaintiff submits the resultant appropriate PSLA should be about HK$403,750, which Mr Ho has rounded off to HK$400,000. 157.Mr Wong for the defendant on the other hand submits that, based on the medical records and the surveillance evidence, the plaintiff’s injuries fall below “Serious Injury” category as set out in the case of Lee Ting-lam v Leung Shu-wing [1980] HKLR 657. 158.Mr Wong referred the court to the following decided cases where awards for PSLA between HK$80,000 to HK$250,000 have been made between 1999 and 2019:-
159.Having compared the multiple disabilities of the plaintiff suffered in the Accident and the decided cases, Mr Wong submits that, if not for the degeneration, the award for PSLA will be around HK$400,000. 160.The defendant further submits that if the court accepts the opinion of Dr KC Lam, the discount should be around 25%. Hence, the defendant submits that a reasonable award will be around HK$300,000. 161.However, if Dr Johnson Lam’s evidence is accepted, the defendant agrees with the plaintiff’s counsel that a reduction of 15% may be adopted, making an award of around HK$340,000. 162.In my judgment, the plaintiff’s injuries fall short of the “serious injuries” category. By applying a 15% discount for his pre-existing condition (as agreed between the parties if Dr Johnson Lam’s opinion on this matter is to be preferred), I would allow an award of PSLA at HK$400,000 in this case. Loss of Pre-trial earnings 163.The plaintiff’s pre-accident monthly income of HK$26,655 has been agreed between the parties. 164.However, the defendant disputes the inflationary adjustments made by the plaintiff to such income by reference to CPI in Hong Kong. 165.Mr Ho submits that by the time of trial there has been substantial passage of time since the Accident happened in 2016, it would be fair and reasonable to apply the inflationary adjustments to such monthly income to more accurately reflect the relevant loss of earnings suffered by the plaintiff these years given the purchasing power of money has been dropping. 166.For instance, in Yu Chun Kit v Wong Wing Yau (formerly trading as Viewbond Cargo Service Co) [2021] 3 HKLRD 938, DHCJ Raymond Leung SC also took judicial notice that according to the Composite Consumer Price Index, the year-on-year inflationary increase in June 2018, June 2019, June 2020 and April 2021 (the June 2021 figure is not yet available) has been +2.4%, +3.3%, +0.7% and +0.8% respectively.[3] 167.In 雲淑莉 訴 力根有限公司 (22 February 2002; HCPI 1142/1996), DHCJ J Lam J (as he then was) actually made annual adjustment to the plaintiff’s pre-accident monthly income (at the notional annual wage increase of 8% apparently as given rise by the inflation between years 1993 and 1997) in quantifying the loss of earnings: (see §§62-63). 168.On such basis, with reference to the Monthly Report on the CPI published by the Census and Statistics Department, the plaintiff submits that there have been the following year-on-year increase in CPI(A): +2.4% in August 2017, +2.8% in August 2018, +4.2% in August 2019, +0.1% in August 2020 and +1.5% in August 2021. 169.Adopting such rates, Mr Ho submits that the plaintiff’s monthly earnings by the time of the trial should be about HK$29,705 (ie HK$26,655 x 1.024 x 1.028 x 1.042 x 1.001 x 1.015) but for the Accident. 170.I accept Mr Ho’s calculations on the annual increase and would accept the plaintiff’s income by the time of the trial would be at HK$29,705 per month. 171.Taking the above into account, I accept that a median figure of HK$28,180 (HK$29,705.70 + HK$26,655.01)/2) should be adopted as the plaintiff’s monthly earnings for the purpose of quantifying his pre-trial loss of earnings and MPF. 172.In this regard, I would reject the submission of the defendant that there should only be a 5% upward adjustment of the pre-trial income of the plaintiff for the entire period of almost 4.5 years. With respect, there is no sound evidential basis for such submission. The defendant, who was the direct employer of the plaintiff at the time of the Accident, was in the best position to produce income of what a comparable rigger would earn during the pre-trial period. Yet it had failed to produce such vital evidence at the trial. The only inference I can make is that it must know that a rigger must be able to earn much more than the 5% increase submitted by the defendant’s closing submissions. 173.I also do not accept the defendant’s submissions that a general worker could only work an average of 24 days a month. That certainly was not the plaintiff’s experience when he was working for the defendant. 174.I would further reject the defendant’s submission that there should be no further loss of earnings after 5 November 2017 when the defendant says that the plaintiff “can either return to be a rigger as suggested by the seven experts in their expert reports or to return to be a crane operator on board of barges as he tried to find jobs in that trade”. 175.As discussed above, I find an appropriate sick leave in this case should be 27.7 months (24.7 + 3). Pre-trial loss of earnings and MPF 176.For the purpose of quantifying the plaintiff’s pre-trial loss of earnings, Mr Ho invited the court:-
177.In this regard, Mr Ho submits that the plaintiff’s personal background is rather special in that he had received no proper education and had only spent about one or two weeks studying at a school for children of fishermen in Tuen Mun when he was young. His Chinese language ability is also rather limited (and basically illiterate) and he has no command of English. It is also recorded in the JPR that he only understands 30% of the words in a newspaper and he cannot write. 178.While I do not consider that given the multiple injuries sustained by him in the Accident and current physical and mental condition the plaintiff would be able to return to work as a rigger or a crane operator (as both jobs would require a high level of physical fitness which the plaintiff clearly does not possess anymore), I also do not think he could only earn as little as HK$11,000 per month as submitted by Mr Ho. 179.I accept the plaintiff has taken reasonable steps to mitigate his loss by looking for alternative employment with the assistance of the Labour Department over the years and that he had never been invited for an interview, most probably due to his lack of education and any special skills. I however consider that the plaintiff would at least able to earn an average income of HK$15,000 as a general labourer in any notional job he would able to find. 180.Based on the above, I would assess the plaintiff’s pre-trial loss of earnings and MPF as follows:–
181.Thus, I would allow the plaintiff’s total pre-trial loss of earnings and MPF at:–
Loss of future earnings 182.The plaintiff was born on 21 February 1963 and is now 59 years old. 183.The court has recognised that a rigger could reasonably be expected to continue to work until he is 65 years old: see Wong Po Lin & Anor v Dragages Et Travaux Publics and Penta-Ocean Construction Co. Ltd. (unrep, HCPI 593/1999, 20 September 2000) per Master Cannon at p 21. 184.In this case, there is medical expert evidence from Dr Johnson Lam explaining that degenerative changes in neck/back/right wrist as experienced by the plaintiff are in fact common in manual labourers of the plaintiff’s age. In many cases these were asymptomatic or minimally symptomatic degenerative changes with only episodic pain and most workers would continue to work until retirement, say, at 60-65 years old. In other words, the plaintiff submits that such degenerative changes, according to Dr Johnson Lam’s expert evidence, should not affect the usual retirement age of most workers regardless of whether this was at 60 or 65 years old. As pointed out above, Dr Johnson Lam also gave clear expert opinion that it is likely that the plaintiff should be able to continue working till about 60-65 years old. 185.The plaintiff submits that, on the strength of Wong Po Lin, supra and Dr Johnson Lam’s view, it is reasonable for the plaintiff to claim his future loss of earnings and MPF up to the age of 65 years old. In that case, the plaintiff would still have 6 years of remaining working life (but for the Accident). 186.The applicable discount rate for plaintiffs with needs not exceeding 10 years is 2.5%: Chan Pak Ting v Chan Chi Kuen (No. 2) [2013] HKLRD 1 per Bharwaney J at §132. 187.According to Table 9 of the Personal Injuries Tables Hong Kong 2019 (for males with pension age at 65), Mr Ho submits that the appropriate multiplier is at 5.47. 188.With respect, I do not accept Mr Ho’s submission that the plaintiff would be able to work as a rigger until 65 even without the Accident. Given the degenerative changes in his neck and back and the very demanding nature of such work, I consider that at most he would only be able to work for 2-3 more years as a rigger without the Accident. 189.I would consider a multiplier of 2 would be reasonable in the circumstances of this case. 190.Based on the above discussions on his would be earnings today had it not been for the Accident, I would adopt a sum of HK$29,705 per month as the appropriate multiplicand for quantifying the plaintiff’s future loss. 191.In the premises, I find the future loss of earnings and MPF as follows:–
Loss of earning capacity 192.The plaintiff claims HK$50,000 under this head. In its Answer to RSOD, the defendant has indicated that it agreed to pay not more than HK$50,000 for settlement purpose. 193.It is well settled that loss of earning capacity is, in gist, a claim covering the risk that at some future date during the claimant’s working life he will lose employment and will then suffer financial loss because of his disadvantage in the labour market: Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 per Keith JA at p 319D to 320A. 194.In Wong Yun Chiu v Union Printing Company Limited (unrep, HCPI 282/2009, 29 July 2011) Bharwaney J (at §38) held that an award under this head is appropriate where a plaintiff clearly suffers from a handicap in the labour market, such as the likely periodical recurrence of pain symptoms requiring sick leave and medical intervention and reduced working efficiency, which may also make him vulnerable to losing any such employment that he managed to secure. 195.In our present case, Mr Ho submits that, objectively speaking, the combined percentages of impairment of whole person of the Plaintiff (as given rise by the multiple injuries) are quite substantial, which would doubtless put him under real risk vulnerable to losing his alternative employment, especially considering his current age and low educational background. 196.I agree with his submission and would award a sum of HK$50,000 to present the loss of earning capacity in this case. Future medical expenses 197.This has been agreed at HK$1,000. I so make such an award. Special damages 198.This has been agreed by the parties at HK$27,500. I so make such an award. Employees’ compensation received 199.The plaintiff has agreed to give credit to the employees’ compensation previously received by him in the sum of HK$805,552.97 in the related proceedings under DCEC 1586 of 2018. Interest 200.I would allow the claim for interest as follows:–
Summary of Calculations 201.In summary, I would award the following sums as damages to the plaintiff in this case:-
202.I therefore would order judgment to be entered against the defendant in the sum of HK$1,206,919 plus interest in this case. Costs 203.Costs will follow the event. I will make a costs order nisi that the defendant shall pay the costs of this action (including all reserved costs order made, in any) in favour of the plaintiff with certificate for counsel. The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations. In the absence of any application to vary the same within 14 days after the handing down of the judgment, the order nisi will become absolute. 204.Lastly, I would like to thank counsel on both sides for their very helpful assistance throughout the trial of this case.
Mr Simon Ho, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the plaintiff Mr Wong Chi Kwong, appearing with Ms Alison Kao, instructed by Clyde & Co, for the defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
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