Tsang Loy Fuk v. Kong and Halvorsem Marine and Engineering Co Ltd
Read the full judgment text of HCA 1393/1981 on BabelCite. This High Court CFI judgment.
1. This is a claim for damages for personal injuries sustained by the plaintiff on 25th May, 1977 in the course of his employment by the defendant company as a general labourer at a boatyard on Tsing Yi Island.
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HCA001393/1981 HEADNOTE
BETWEEN:
Coram: Roberts, C.J. Dates: 12, 13, 14 January, 17 & 18 March 1983 ----------------- JUDGMENT ----------------- The accident 1. This is a claim for damages for personal injuries sustained by the plaintiff on 25th May, 1977 in the course of his employment by the defendant company as a general labourer at a boatyard on Tsing Yi Island. 2. On the day in question, the plaintiff was working in his employer's yard on a boat mould, which was made of plywood and was in the shape of a boat turned upside-down. At its highest point, the upturned boat was approximately 9 feet above the ground, surrounded by a platform of planks. This was set at a height of about 3 feet 6 inches above the ground. There were no protective fencing, handrails or ropes either on the platform or on the upturned boat itself. 3. The plaintiff's evidence was that during the morning of the 25th May, 1977, he was helping to fill in the mould standing on the ground to do so. Other workers were in the vicinity and Mr. Hung was the foreman in charge. 4. When the rain began to fall, Mr. Hung gave orders that the boat should be covered in order to protect it. Hearing these instructions, the plaintiff and others went to fetch a large canvas sheet, or tarpaulin, to cover it. 5. The tarpaulin was brought to the side of the boat and the plaintiff and two of his companions climbed onto the planks and from there to the top of the boat, where they began to pull the tarpaulin from the port-side of the boat to the starboard side in order to cover it. 6. The plaintiff grasped a rope, which he said ran round the edge of the tarpaulin through a series of holes, in both hands, his right hand being underneath the canvas and his left hand above it. As he pulled the tarpaulin towards himself, backing across the upturned boat, he fell backwards to the ground. He lost consciousness as a result of his fall and was taken immediately to hospital. 7. The defence called two witnesses, LEUNG Tat-chuen, a foreman who was working on the site on the morning of the accident, and CHAN Wah, a carpenter, who assisted the plaintiff to pull the tarpaulin over the top of the boat. 8. Both confirm the main particulars of the plaintiff's evidence, i.e. that he was working on the boat on the morning in question, that he did help to pull a tarpaulin over the boat, in order to protect it from rain, and that in the course of so doing he lost his footing fell to the ground and was injured. 9. Leung's account differed from that of the plaintiff in that his evidence was to the effect that a tarpaulin was left rolled over the boat each night and was pulled back each morning before work was started on the moulding. 10. So, when it became necessary to protect the mould during the day, it was only necessary for the tarpaulin to be pulled from the bow, where it was already lying rolled up, towards the stern. 11. Leung agreed, as did CHAN Wah, that no kind of rail, safety handle or rope was provided and that, if you worked on the upturned hull and slipped, there was nothing to prevent you from falling off to the ground. 12. CHAN Wah agreed with Leung that the tarpaulin was left over the boat at night and rolled back to one end in the morning, so that work could, be carried out on the moulding. It was therefore only necessary to pull the canvas back from the bow towards the stern in order to cover the boat. 13. Chan added that he had worked in shipyards for some years and that it was well-known to people engaged in making moulds that these have to be protected from the rain. 14. I prefer the evidence of Leung and Chan, who seemed to me to be more reliable in their recollection than the plaintiff. Their account is also inherently more probable, since it would have been sensible for the boat to have been covered by the tarpaulin at night. 15. However, whichever version is correct, and whether .the plaintiff was walking backwards towards the stern or backwards from port to starboard, the cause of the accident was the same, namely, the loss of his grip on the tarpaulin, and his fall from the hull to the ground. Medical history 16. The plaintiff was admitted on the morning of the accident to Princess Margaret Hospital, where he was examined by Doctor W.D. Ng. 17. In his report, dated 23rd September, 1980, Dr. Ng noted that he had, on examining the plaintiff, found the latter to be suffering from pain on moving the right shoulder and elbow and that there were abrasions behind his right scapula region and on the right upper-arm. 18. The plaintiff was discharged the following day. He was re-admitted on the 10th June, 1977 because of the painful movement of his right arm, and discharged again on the 12th June when the pain subsided. 19. An Employees' Compensation Ordinance notice, completed on behalf of the defendants on 26th May, 1977 by their Production Manager, describes the plaintiff's injury as "dislocation of the right shoulder". 20. Dr. Ng testified that the plaintiff did not complain of any pain except in his shoulder, though he did make a "passing reference to lower back pain". Dr. Ng thought that this was only a transient ache, and therefore did not suggest to the plaintiff that he might have suffered any lower back injury. 21. The plaintiff stated that he did mention that his back was hurting. when he returned to hospital on the second occasion in June 1977, but that he was given no treatment for it and that the doctor did not on that occasion tell him anything about his back having been damaged. 22. In October 1977, an Employees' Compensation Board assessed the plaintiff as having sustained a 10 percent permanent disability, by reason of the injury to his shoulder. There was no mention in the Medical Board's findings of any pains being suffered by the plaintiff in his back. 23. The plaintiff continued to receive physiotherapy for his arm and shoulder for some months during the latter part of 1977. He returned to work at the shipyard for three to four months in late 1977, leaving early in 1978, because his arm and shoulder were giving him trouble. He said that his back was also bothering him but that he thought that the damage to his arm was more serious and that his back problem was temporary and would get better after treatment. 24. The plaintiff did odd jobs during 1978 and early 1979. However, by the middle of 1979, his back and shoulder were causing him so much trouble that he consulted a private practitioner, Dr. Y.Y. Kwok, who took X-rays, and sent him to the Sai Ying Pun Clinic, about October 1979. He received physiotherapy treatment there, before being referred to the Queen Elizabeth Hospital in December 1979, since the treatment had not alleviated the pain. 25. At the hospital, he was examined by Dr. K.C. Fung, a member of the Osteopathic Unit, on the 13th February, 1980. Dr. Fung confirmed the diagnosis of the Sai Ying pun Clinic that the plaintiff was suffering from low back pain and sciatica. Dr. Fung recommended physiotherapy, but took no further X-rays as the plaintiff had brought with him those which had been taken by Dr. Y.K. Kwok in the previous year. 26. On the 24th March, 1980, Dr. K.M.Chan, an orthopaedic specialist, operated on the plaintiff.. This operation, described as a fenestration, was intended to deal with the prolapsed intervertebral disc, which was diagnosed by Dr. Chan, before the operation, after his examination of the further X-rays which were taken on the 18th March at his request. 27. According to Dr. Chan, the condition which he found could have been the result of degenerative changes in the patient or caused by a traumatic injury. He thought the former more likely in the plaintiff's case, basing his conclusion on his examination of the lesions which he observed during the course of the operation. 28. The plaintiff continued to receive physiotherapy after the operation. This was not fully successful and a further operation, described as a laminectomy, was carried put in March 1981. 29. The hospital records, according to Dr. Chan, suggest that there was some amelioration of the plaintiff's backache and sciatica after the second operation. 30. Dr. Wedderburn, who examined the plaintiff in December 1980, February 1981 and July 1982, disagreed with Dr. Chan's view that the lesions in the plaintiff's spine were due to degenerative changes by themselves and not to a trauma; and was satisfied that the fall in 1977 was the cause of the plaintiff's subsequent back trouble. His view was that it is wrong to judge from the end result what the precipitating cause of a condition was, because the result looks the same whatever the initial cause may have been. The abnormalities which Dr, Chan may have seen do not, by themselves, indicate whether their origin was degenerative or traumatic. 31. Thus, it is necessary to investigate carefully whether there is any history of injury before it is right to guess at the origin of the lesions. It would be surprising if the patient was unable to connect the emergence of pain with some earlier trauma. 32. Dr. Wedderburn was satisfied that there could be a delay of almost three years between an accident occurring which damaged the spine and the symptoms becoming severe enough to warrant treatment and operation. He cited cases, from his own experience, in which there had been far longer intervals between the injury and the emergence of substantial pain. Disability 33. Dr. Wedderburn was of the opinion that the plaintiff is no longer capable of work except in a sedentary occupation which would not involve him in standing or walking. 34. The plaintiff wears a lumbar corset, has a greatly reduced movement in his right leg during the straight leg raising test and suffers pain on pressure over the back lumber region. He does not think that the plaintiff movement of the right arm and shoulder is limited. The operation performed for the prolapsed intervertebral disc was only a partial success, leaving the plaintiff with residual low back pain and damage to the right sciatic nerve. 35. Dr. Wedderburn considers that the plaintiff is below average in intelligence and is unable to attempt to overcome his handicap, since he lacks resolution and fortitude. I accept Dr. Wedderburn's opinion and conclude that the plaintiff is no longer capable of obtaining and holding a job. Indeed, the defendants did not challenge this. 36. I prefer the opinion of Dr. Wedderburn to that of Dr. Chan, insofar as they differ as to the likely origin of the lower back condition from which the plaintiff now suffers, and find that it was the fall at work in May 1977 that is responsible for the plaintiff's present physical condition and for his inability to work. Limitation 37. It was pleaded by the defendant that the accident was barred by section 27 of the Limitation Ordinance (Cap. 347) since the accident occurred on the 25th May, 1977, whereas the writ, was issued on the 3rd March, 1981, i.e. outside the period of three years permitted for the institution of an action for damages for personal injuries due to negligence or breach of duty. 38. Section 27 requires an action to be brought within three years of the data on which the cause of action arose, or the date, if this is later, of the plaintiff's knowledge. By section 27(6) the date of the plaintiff's knowledge is the data on which he first had knowledge of a number of facts. I accept that he knew of these various matters at the time of the accident, with the exception of his knowledge that the injury in question, was "significant". 39. By section 27(7) an injury is "significant" if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. 40. I must therefore try to assess at what date the plaintiff would reasonably have considered the injury to his back to be "significant", in the sense given to that word by section 27(7). 41. I accept that the plaintiff made a passing reference to an injury to his back when he was first interviewed by Dr. Ng on the day of the accident. However, Dr. Ng attached no significance to it, since there is no mention of any such injury in his notes of his examination of the plaintiff on 25th May, 1977. Nor is there reference to any lower back injury in the Employee's Compensation Board award in October1977, from which I draw the inference that the Board did not consider the back injury to be significant. 42. Thus far, no doctor had suggested to the plaintiff that his back pains should be taken seriously and I see no reason why he should have been expected to do so himself. 43. He returned to work at the boatyard in October 1977, for about three or four months. He left because he could not do the work, by reason of pain in the right shoulder., right arm and lower back especially when he squatted down. 44. He conceded that his lower back was giving him trouble at that time, but thought that this was temporary and would improve after treatment. 45. During 1978, he continued to receive treatment for his arm and shoulder, but not for his back. He also received medication for tuberculosis which was diagnosed during that year. This was a separate condition which did not influence his lower back injury in any way, though it must have been a contributory factor in his inability to work during this period. 46. It was only in 1979, when the pain in his back became more acute, that he Consulted Dr. Y.Y. Kwok who told him that his back injury was sufficiently severe to require physiotherapy and possibly surgery. 47. These facts lead me to conclude that the plaintiff sought reasonably to have known that the injury to his back was significant when he felt obliged to give up his work at the shipyard, which I must have been early in 1978, though the plaintiff is understandably vague about the actual date when he finally left the defendant's employment. 48. I therefore find that the defendants have established, on a balance of probability, that the plaintiff did not bring his action within three years of his knowledge that the injury to his back was significant and that the action would be barred by section 27 of the Limitation Ordinance. 49. This is not, however, an end of the matter, since section 30 of that Ordinance confers upon the court a discretion, if it considers it equitable to do so, to permit an action to continue notwithstanding that it is time barred. 50. I have therefore addressed myself to the various factors to which must have regard by virtue of section 30(3). 51. In particular, I was influenced by the lack of any evidence that the defendants would be prejudiced by the exercise of such a discretion in favour of the plaintiff, other than to the extent that the recollection of witnesses becomes lass reliable with the passage of time. It was hot suggested that, in consequence of the delay, witnesses or documentary evidence are not available to the defendants, which would have been had the proceedings been instituted within the three year period. 52. I gave weight also to the medical history of the plaintiff, who suffered some initial pain in the back, but was led by the medical advice which he received before 1979 to. believe that it was his shoulder which was the injury that mattered and not his back at all. 53. The delay was, in any event, not more, on my findings, than three or four months beyond the permitted three year period. 54. Taking these circumstances into account, I am satisfied that this is a proper case for the exercise of the discretion conferred by. section 30 to permit the claim to be heard notwithstanding that it would otherwise have been time-barred under section 27. The Liability of the Defendants 55. The plaintiff asserted that the defendants had failed to their common law duty of taking reasonable steps to provide a safe system of work for those whose duty it was to pull tarpaulins over the upturned boat in order to protect it from rain. 56. In the alternative, it was alleged that there had been a breach of statutory duty by the defendants, by reason of their failure to comply with regulation 24 of the Factories and Industrial Undertakings Regulations. 57. The evidence of. the defendants' witnesses, which I accept on this matter, is that. a tarpaulin was rolled over the hull every evening and pulled back from it every morning and whenever rain made such a precaution necessary. 58. It should have been apparent to the defendants that, unless a system was devised whereby the tarpaulin could be pulled over the mould, without those performing this task having to mount the keel, there was a substantial risk that anyone standing on the upturned boat and pulling the tarpaulin across the top of it might fall from the top of the upturned boat to the ground. 59. As counsel for the plaintiff suggested, it would have been simple for this danger to have been avoided by the attachment to the tarpaulin of ropes of sufficient length to enable it to be pulled forwards or backwards over the upturned boat, without the necessity for those pulling it to have climbed on the boat itself in order to do so. 60. I am thus satisfied that the defendants failed in their statutory duty to provide a safe system of work for those whose task it was to cover or uncover the boat. 61. It is therefore not necessary for me to consider whether there was a breach of statutory duty. Thus, although it was conceded by the defence that the boatyard was a "factory" within the meaning of the Factories and Industrial Undertakings Ordinance, I make no finding as to whether or not regulation 24 applies so as to require that a fence not less than three feet high should have been erected round the boat for the purpose only of pulling back the tarpaulin. 62. It was pleaded as one of the matters of defence that the plaintiff had been guilty of contributory negligence. I find that there is no evidence of this and that he was behaving in a reasonable manner in the circumstances. I note that one of the defence witnesses, CHAN Wah, who was assisting in the drawing back of the tarpaulin, adopted the same procedure as the plaintiff, though he may have gripped the tarpaulin in a slightly different manner. I also find that both of them, whether or not they received specific orders at the time to move the tarpaulin, were acting on general instructions given by their employer that steps should be taken by them, if necessary, to cover the boat when it rained. 63. I therefore find that there was no contributory negligence on the part of the plaintiff. Extent of Liability 64. To assess the extent to which the defendants should be held liable for the present incapacity of the plaintiff, I must consider whether the injury to the shoulder, a claim for damages for which was, it. is conced ed by the plaintiff, time barred, should have the effect of reducing the amount of any damages. 65. It might be argued that there should be a reduction in the defendants' liability by reason of the fact that part of the plaintiff's present disability could be attributed to the shoulder injury, giving 'due weight to the assessment of the Employees' Compensation Board in October 1977 that he would be left with a 10% permanent disability as a result of that injury. However, since 1977 the plaintiff has received treatment for his shoulder and I accept the opinion of Dr. Wedderburn, based on his examination in July 1982, that the condition of the shoulder no longer constitutes a significant degree of disability. 66. I therefore find that the plaintiff's present disability is attributable solely to the injury to the back and is not contributed to by the injury to his shoulder. Special Damages 67. The plaintiff claims as special damages, by virtue of an amendment to the Statement of Claim, which I permitted during the trial, $84,344, as lost earnings for the period August 1979 to January 1983. These amounts were not disputed by the defendants, assuming that liability against them was established. 68. From this amount must be deducted $33,511 which was awarded in 1982 to the plaintiff by a second Assessment Board established under the Employees' Compensation Ordinance, for the injuries to the plaintiff's back. This leaves a balance of $50,833 by way of special damages, which I duly award. Loss of Earning Capacity 69. At the time of the accident, the plaintiff was aged 57. According to the evidence of Dr. Wedderburn, which I accept, 65 is the top age for casual manual labourers in Hong Kong. Dr. Wedderburn thought that the plaintiff would have had to give up that kind of active work at about the age of 63 though he might have lone something lass active for two or three years' more. 70. I think that a proper multiplier to take in this case would be six years, from May 1977. Thus, allowing for. the special damages to run until the end of January 1983, there would be a further four months by way of general damages for loss of earning capacity. It was accepted b 7 the defendant that a daily rate of $86, or a monthly rate of $2,236, would be appropriate. Therefore, $8,944 should be awarded under this head. General Damages for Pain and Suffering and Loss of Amenities 71. As stated above, I believe that the pain suffered by the plaintiff by reason of the injury to his back became significant early in 1979, after which he has suffered much pair, which liter became serious and of a disabling nature. 72. He has been obliged to undergo two operations, one in 1980 and one in 1981. Both must have involved stays in hospital of some days, or even weeks, although I have had no evidence as to the exact period spent by him there. 73. He has a limitation in movement of his tight leg, some discomfort in the thigh and low back and pain over the lumber region. And I accept Dr. Wedderburn's view that it is unlikely that a further operation would be successful. 74. I have been referred to a number of cases which deal with the amount of general damages to by awarded for injuries of this nature. Taking these into account, I regard the sum of $40,000 as a reasonable award for the pain and suffering and loss of amenities by the plaintiff Summary 75. There will thus us be an award to the plaintiff of -
Interest 76. The usual practice, in personal injury claims, is to award the "full rate" of interest on general damages for pain and suffering, from the date of issue of the writ until the date of judgment. 77. Interest at half the full rate is usually awarded on special damages from the date of the accident until the date of judgment. 78. In this instance, however, it was conceded by the plaintiff that interest on the special damages should be awarded from 1st August, 1979, the date from which the plaintiff suffered the loss of earnings, which is the basis of the award of special damages. 79. The "full rate" of interest is usually an average of the banks' best lending rate during the relevant period. This would be about 15%, for the period August 1979 to February 1983 inclusive. 80. The rate of interest on judgment debts is prescribed about twice a year by notice in the Gazette. This rate appears to be based upon an average of the banks' best lending rata during the six months before the notice. 81. In England, the "full rate" in personal injury actions reflects the interest obtainable on short-term investment accounts. This tends to differ somewhat from the judgment debt rate, being sometimes slightly above and sometimes slightly below it. 82. It was argued by counsel for the defendant that the "full rate" should be based on the average savings bank interest rate, which is substantially below the best lending rate. She submitted that the defendant should not be made to compensate the plaintiff beyond his likely loss; and that this should be measured by what he might have earned if he had invested his damages in a savings account on call. 83. I do not think that it should be assumed that a plaintiff would invest his money in the manner which would be least profitable to himself, as is suggested. Any sensible investor can be expected to secure a better return on his capital than that available from a savings account on call. 84. Furthermore, in England, the courts have adopted a full rate which is close to the judgment debt rate, as has been the Hong Kong practice. 85. I see no reason, therefore, to reduce the full rate, which has been calculated in the manner described above for some years. 86. It was also submitted that I should award a nominal rate of interest say 2%, on general damages, following the English Court of Appeal decision in Birkett v. Hayes (1). 87. I was referred also to the recent Hong Kong case of Cheung Wai-lin v. Kowloon Motor Bus Co. (1933) Ltd. and Wong Yin Chong(2) in which Jones, J. followed Birkett(1), as did Mantell, J. in another unreported case. 88. I would, in the interests of judicial consistency, which is of some importance because litigants should know that the, same principles will be applied by all judges, have taken the same course as the other judges. In addition, although an English Court of Appeal decision does not bind me, it would be unusual for me not to follow it. 89. However, I have been provided with an advance copy of the judgment of the Hong Kong Court of Appeal in Tang Suk Yee, Daisy v. Wong Yuk-chau & Anor. (3), in which that Court declines to follow Birkett (1) and rules that "the guideline to be applied in Hong Kong is that general damages for pain, suffering, loss of amenities and loss of expectation of life should continue to be at the full economic rate" (per Fuad, J.A.). 90. Since the appeal was concerned only with interest in an award for loss of expectation of life, the court notes that its view as to the rate of interest for pain, suffering and loss of amenities is obiter. 91. However, although its expression of view may be obiter, it is a clear indication of how it would, and will, find when the question comes before it. It would be wrong of me not to follow such a firm statement of the Court of Appeal's attitude on the matter and I shall therefore adopt their approach and refuse to follow Birkett (1). 92. I therefore award interest at half rate, or 7½%, on the special damages, from 1st August, 1979 to the date of judgment and at the full rate of 15% on general damages for pain and suffering, from the date of issue of the writ, 3rd March, 1981, until the date of judgment. 93. No interest on general damages for loss of earning capacity. 94. Costs to be awarded to the plaintiff and to be taxed in accordance with the Legal Aid Regulations. (1) [1982] 1 W.L.R. 816. (2) Action No. 4741 of 1980 (3) Civil Appeal No. 13/83 Representation: J. Bleach (D.L.A.) for Plaintiff Mrs. B. Kaplan (Denton, Hall & Burgin) for Defendant. |