Chan Choi Cheong v. Dover Industries Ltd

HCA001482/1981

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J.

Date: 5th August, 1983.

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JUDGMENT

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1. Shortly after noon on the 12th March 1978, the plaintiff then in the employed of the defendant as a driver cum miscellaneous job worker was crushed and pinned down by a falling machine over 800 pounds in weight, 5 feet in height with a squarish body of 2 feet by 2 feet. The plaintiff was hospitalized for almost 2 months and was discharged on the 6th May 1978 when he was transferred to a convalescence ward in Kowloon Hospital for physiotherapy.

2. The plaintiff sustained a fracture in his left leg. He had a fractured 6th rib and & fractured spine in the form of a compression fracture of the lumber 1 vertebra. He is left with a deformed left leg about an inch shorter than his right leg. He suffers from weakness on both of his legs with a 20% loss of strength and muscular power on his right leg. He has flaccid paralysis of his left leg. However, he could still walk on his left leg but he cannot feel or judge its exact location. He has no control of his bladder. He is constantly carrying a Paul's tube, a pouch for collection of urine. He only retains partial control of his bowel's function. He has lost sensation in his bladder and has, therefore, the disadvantage of not having advance warning of and urinary disease infection including those affecting the kidney. For this high risk of exposure to urinary diseases including those affecting the kidney, he is estimated to have suffered a loss of expectation of life from 5 to 7 years. Due to concussion to the spinal cord in the neck region, he has lost some grip strength in both of his hands.

3. Dr. Wedderburn described his injuries as very serious just next to that of a severed spinal cord. He has been assessed by Dr. Wedderburn as being 75% impaired of the whole man compared to a normal man in disability and he was assessed as 100% disabled in his earning capacity. When the plaintiff came before the Medical Assessment Board, he was assessed on the 26th November 1980 as suffering from 80% disability.

4. At this trial, Dr. Wedderburn confirmed his opinion with clarifications. The opinion of Dr. Wedderburn was substantially confirmed by that of Dr. Yau. The plaintiff's injury and resulting disabilities including loss of expectation of life are certainly above the "substantial injury" categorised in Lee Tina Lam v. Leung Kam-ming, Civil Appeal No. 11 of 1980. Taking into consideration inflation, I would allow $130,000.00.

5. In the main, Dr. weddenburn was of the opinion that the plaintiff could not walk long distance and that he would rather prefer to have the aid of crutches though a man of his injuries could, with some endeavours, wall short distance by learning to swing his left leg forward with pelvic movement. Dr. Weddenburn was definite that it was unsafe for the plaintiff to drive and that by doing some simple home industry "provided the goods were collected and delivered", the plaintiff would possibly be able to earn $100 to $200 a month. The plaintiff was observed by Dr. Weddenburn as otherwise to be cheerful and without any visible sign of anxiety or look of resignation.

6. I will firstdeal with the question of liability. It is the plaintiff's case that he was instructed by one of the directors and factory supervisor, Mr. Leung to move the machine from the machine-room to the adjoining premises. He had the assistance of several workers, three or four in number, working under the supervision of the foreman, Mr. Chow. The plaintiff told the court that the machine was hoisted with the aid of pulleys in the machine-room onto a trolley and thereupon it was carted or wheeled from the machine-room to the adjoining room in which the machine was set down from the trolley and rested on the floor by three or four workers. After all the workers had left the adjoining room where the machine was then laid, the plaintiff bent over to pick up a rope. At this point of time, the machine toppled over him causing him all those injuries, hospitalization and permanent disabilities.

7. The case of the Defence was that the plaintiff of his own volition informed Mr. Chow, the foreman that the machine had to be moved. Thereupon, Mr. Chow allegedly said to the plaintiff: "Today is Sunday, there are only a few people. Without people's assistance, that machine could not be moved." Thereafter, Mr. Chow was making repair to a machine. All of a sudden, he heard screams of "Save life", and the plaintiff was found pinned under the machine in the middle of the doorway between the two adjoining premises within the factory. The defendant's version is that neither Mr. Leung nor Mr. Chow instructed the removal of the machine, all the less so by the plaintiff alone and that, in fact, the plaintiff was warned by the foreman against having the machine moved on a Sunday with shortage of hands.

8. Two of the plaintiff's then co-workers on that Sunday, 12th March 1978, were called by the defendant. Mr. Mok told the court that he saw the plaintiff moving a "piling machine" on a trolley passing behind him. Mr. Lee Chung, another co-worker saw the plaintiff lifting the machine, putting it on a trolley and pushing the trolley away. However, both Mr. Mok and Mr. Lee were less than certain in their respective evidence with Mr. Mok admitting that he did not pay attention to the plaintiff behind him. Mr. Lee was driven to concede that he had only fleeting glances over in the direction of the plaintiff who was some 10 feet behind him. This is very strange because in a small factory like that of the defendant's with few workers, especially on a Sunday, the tragic accident must have been a favourite topic for discussion on that day and a long time thereafter, and co-workers like Mr. Mok and Mr. Lee should be expected to retain a vivid memory. Beth Mr. Mok and Mr. Lee appeared to be willing witnesses for the defendant. Their guarded evidence is suspect.

9. In Mr. Leung's Notice given under the Workmen's Compensation ordinance and his earlier report to the authority, he confirmed the version of the plaintiff. Workmen compensation was awarded on the 3rd February 1981 in the sum of $70,720 and with interest amounting to over $85,000.

10. Despite his court evidence, on the 18th November 1980, Mr. Chow, the foreman gave a statement to the officer of Legal Aid Department, Miss Au, also supporting in substance the version of the plaintiff.

11. Both Mr. Leung and Mr. Chow confessed that they told an untruth earlier with an intent to assist the plaintiff to obtain Workmen's Compensation from an insurance company. The evidence of these self-confessed liars should be considered with care and circumspection.

12. It is common ground that the plaintiff was not under any duty and had not the authority to decide where machineries were to be placed. It is inconceivable that any odd job worker would create such an arduous task for himself without specific instructions. It must be plain to all that the transportation of an unsecured piece of machinery of over 800 pounds on top of a trolley was extremely hazardous. It was highly improbable that the defendant would be prepared to run such risk on his own. It was equally improbable that other workers seeing the transportation carried out in such hazardous manner would not have come to his assistance. What is more, no challenge was made to the plaintiffs evidence that the machine was set down on the floor from the trolley at the end of the journey. Without assistance, the placing of the machine from the trolley onto the floor, single-handed, would have been beyond most human capacity or endurance. If in fact the machine had fallen over from a possible unsteady position on the trolley, one would. have expected the defendant and its witnesses at the scene soon after the accident to be quick in raising such a counter charge of negligence. There was not even a suggestion that such was the case. It is common ground that no pulley facilities were available at or above the scene of the accident and it was never suggested that the plaintiff had set up, all by himself, a special pulley system for the unloading of the machine onto the floor at its destination.

13. But the transportation, allegedly by the plaintiff alone, of the machine to its destination was not relied upon as causation of the accident. Unless the defendant were able to persuade the court to accept that the plaintiff was setting down the machine from the trolley onto the floor not only single-handedly but also negligently and was, therefore, solely to blame for the accident if indeed it was caused by his negligent placing of the machine at its distination, the alleged unauthorized transportation would seem to be quite irrelevant. There was no allegation that the setting down of the machine was in any way negligent. I have given all this my careful consideration, and in the end I prefer the plaintiff's version despite his exaggeration on some expenses and the tarnish on his credibility driven home by the evidence of the detective, Mr. Fung, on his mobility as corroborated by the photographs.

14. As far as the plaintiff's claim is concerned, he could not explain the cause for the toppling over of the machine; nor indeed could the defendant. These were new premises. The floor was new, level and without garbage but, of course, if the machine had been safely secured to the ground or other fixture or structure, there could have been no possibility of it falling on the plaintiff. Though the cause of the accident was unknown, the defendant was negligent in not having the machine so properly secured as to exclude all possibility of an accident. In my view, in any case the plaintiff could properly rely on the doctrine of Res Ipsa Loquitur. The accident was an unexplained occurrence and one which would not have happened in the ordinary course of things without negligence on the part of somebody. From the facts analysed, there was really no suggestion that the plaintiff was in any way negligent after the machine had been properly set down on the level clean floor of the new factory premises. After the machine had been so set down, the defendant had the sole management and control of it at the time of the accident. The overall circumstances can only point to the negligence in question being that of the defendant rather than of any other person. In conclusion, with the aid of this presumption, I find on the balance of probabilities that the defendant was wholly negligent.

15. Next I turn to the question of quantum. The plaintiff admitted having been paid some salaries in the sum of $25,000 as evidenced by "D-2", "D-3" and "D-4" whilst he was confined to hospital. The plaintiff willingly signed these documents as receipts for salaries. The defendant company Paid these sums also as salaries. There was no misunderstanding between the payor and the payee. It was submitted that the plaintiff was no longer performing any work and therefore he was merely entitled to the statutory maximum of 36 days under the Ordinance. Hence, so it was sought to be argued, the payment of this $25,000 or the main bulk thereof was ex gratin. That, in my view, attractive as it may seem, is drawing too fine a line. The crux of the matter, I should have thought, must be whether the plaintiff's contract of employment was or was regarded as still subsisting. I find that it was and that the $25,000 was part payment of his salaries. The plaintiff also received $70,720 workmen's compensation. These sums will have to be deducted from the, award made in these proceedings.

16. As for loss of earnings, it was claimed at $1,300 a month from the 12th March 1978 to the 11th March 1982 for 4 years totalling $62,400. Mr.Leung, the director and factory supervisor, told the court that his miscellaneous job workers were at present being paid $1,500 to $1,600 a month. Mok Chung being a press machine operator makes $56 a day plus $20 odd a day extra. On a 30 days per month basis, that would be $2,180 per month. Lee Chung, another press machine operator earns $2,000 a month net. But Mr. Leung also agreed that the skilled workers were earning $1,300 to $1,400 a month in 1978 i. e. only about $100 over and above the plaintiff's $1,300. It would be proper to infer, therefore, that the plaintiff's earnings would have reached just a little below the present level of $2,180. I would take the figure of $1,900 per month for the plaintiff. The increase mast have been gradual, and would arbitrarily take a round figure of $1,400 from date of accident to mid March 1982 and thereafter at the full rate of $1,900. Although only $1,300 is claimed in the Statement of Claim, for easier calculation for effecting some equity, If necessary I would regard the claim as having been so amended.

17. Dr. Weddenburn's opinion of a possible meagre income of $100 and $200 a month should, in my view, he received with more optimism. The plaintiff has been shown to have a higher degree of mobility from the evidence of the private detective, Mr. Fung which I accept entirely. I need not go into the details, but as counsel Mr. Pang submitted, the plaintiff was shown to have been untruthful in this description of the occasions on which he was under surveillance.

18. As from the beginning of 1982 to the middle of June this year, the plaintiff drove to the defendant's factory 5/6 times a week in a van to give free lift to a female former co-worker and the factory foreman, Mr. Chow. The plaintiff should not have so driven. Having had so much free time, I am prepared to accept that he had no earnings. But the plaintiff was quite mobile and enterprising. He should have been in some way, gainfully employed. Therefore, as from March 1982 to July 1983, the date of trial, in total approximately 16 months, 1 year and 4 months, I would take his earning capacity as $400 a month. Therefore, the net loss of earnings would be $1,500 a month and for 16 months from March 1982 to July 1983, it would be $26,250.00.

19. I would give a 9 year's purchase for a man of the plaintiff's 51, taking into consideration his stamina reflected by his activities after the accident and his appearance, described by the doctor as a younger man than his age. His pre-trial loss is to be calculated from the date of the accident in March 1978 to July 1983, the date of trial, altogether 5 years and 4 months. That would leave 3 years and 8 months for calculating his future loss. 3 years and 8 months at $1,500 a month would give $71,250.00. His claim of hospital charges is also admitted at $995. He took 50 pills allegedly at $200 each whilst he was in hospital. He explained to the court that on the recommendation by a worker whose colleague had past experiences he purchased and took these pills. He also told the court their effect on his recovery. I would allow, therefore, these 50 pills but at $100 each. The market price for a similar pill is $83 today, and the plaintiff's evidence of $200 cannot be said to be wholly without, exaggeration, although I accept his evidence that the pills were not readily available in Hong Kong and for which payment of a premium was, therefore, necessary. I regard $100 per pill as being the actual expenditure. Therefore, there would be another $5,000 for the 50 pills.

20. The plaintiff fell in April 1979 and suffered a dislocated hip joint. He preferred to be treated by a bone-setter, Mr. Cheung and accept his prescriptions. The fall in April 1979 has not been sufficiently proved to be a coneguence of the defendant's negligence in the accident. I, therefore, cannot allow the claim for bone setter's fees of $6,000 and the nutritious food claimed at $30,000. I would otherwise have been prepared to assess as claimable $6,000 for bone-setter's fees but only half of the $30,000 as proper expenditure on the prescriptions and complementary purchases.

21. In the result, the entitlement of the plaintiff on the found negligence and facts can be summarized as follows :-

22. The claim for loss of earnings from the sale of discarded packaging on an alleged average of $35 a day is, I find, again exaggerated. The plaintiff's former co-worker, Mr. Lee Cheong told the court that there used to be $100 to $200 per month to be shared among the three. The foreman told the court that he would get about $40 to $50 a month. I am prepared to accept, on the balance of probabilities, giving weight to the exaggeration in the evidence of the plaintiff that his share together with sale of damaged or soiled discarded packaging was in the region of $100 a month. However, the sale of discarded packaging had ceased about a year before the accident. In the new factory, the materials came in a different form of packaging, the undamaged ones of which had invariably been re-used by the defendant factory, and the soiled and dirty ones had, I was told, no commercial value. I accept this evidence. Even the plaintiff himself has never suggested that after the defendant's more to the new premises, there had been, at any time, a sale of discarded or soiled packaging. I would not, therefore allow the plaintiff's claim for loss of earnings from the sale of discarded packaging.

23. Turning to intereset, special damages should attract interest at 6% per annum from the date of injury to the date of judgment and general damages in the form of pain and suffering, and loss of amenities including loss of expectation of life should attract only 2% pear annum as from the service of the writ to judgment. I am guided by the House of Lord's decision in Right v. British Railway Sport which upheld the English Court of Appeal's decision and is in line with our Court of Appeal's recent recommendation for non-economic loss (pain and suffering and loss of amenities of life). The plaintiff must, therefore, have costs against the defendant.

Representation:

Mrs. Barbara Kaplan instructed by Messrs. Stevenson & Co. for the Plaintiff.

Mr. K.K. Pang instructed by Messrs. Yung, Yu, Yuen & Co. for the Defendant.