Ho Chi Ming v. Union Rife Hong Kong Ltd.

HCPI001204/1996

HCPI No. 1204/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1204 OF 1996

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Coram : Suffiad, J. in Court

Date of Hearing: 22 - 26, 29 and 30 June 1998

Date of judgment (handed down) : 11 August 1998

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J U D G M E N T

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1. The Plaintiff brings this action against the Defendant alleging that the Defendant, being the employer of the Plaintiff at the material time, was negligent as an employer towards the Plaintiff resulting in the Plaintiff sustaining personal injuries and thereby suffering damages as a result of a fall while working on the wet and slippery deck of the Defendant's barge, the "Wah Tak", on 4th February 1994.

Background

2. The Plaintiff, who has had little formal education, came to Hong Kong as a boy of about 12 years in 1970. Since that time he has helped his father working as a fisherman on his father's fishing boat. When his father stopped working as a fisherman in the 1980's, so too did the Plaintiff. Thereafter the Plaintiff had worked at various construction sites as a casual worker until in December 1993 when he joined the Defendant company as a deckhand working on a barge collecting waste oil from container ships and other vessels docking in Hong Kong waters. The Defendant's business involved mainly collecting waste engine oil and residue from container vessel and ocean liners and then recycling or disposing of same.

3. When the Plaintiff first joined the Defendant as a deckhand in December 1993, he was taken on as a casual deckhand. As from 1st January 1994, the Plaintiff became a full-time deckhand of the Defendant subject to a three-months probation period. The Plaintiff's duties as a deckhand involved the positioning, connecting and disconnecting of the hoses to and from vessels from which the waste oil are collected, the general attendance to the pumping of the waste oil from such vessels as well as the cleaning of the barge.

4. It was also common grounds between the parties that when the Plaintiff started working with the Defendant, he was given no special training but that all the training given to him were on the job training. The Plaintiff and also the other deckhands took their instructions from the foreman Lai Kat On who also worked together with the other deckhands on the "Wah Tak". The other deckhands were Yeung Kam Hing and Shek Koon Ying and it was the Defendant's policy that at all times there should be at least one foreman and two deckhands on the barge, whether the barge was out at sea on a job or merely being cleaned after a job.

5. Moreover, another policy of the Defendant company was that any oil spilled on the deck of the barge, irrespective of how minor it may be, must be cleaned up immediately. No doubt this policy was laid down due to the fact that the Defendant realised only too well that by reason of the kind and the nature of the business which the Defendant was involved in, any oil spilled on the deck of the barge was liable to entail real and substantial risks not only to the Defendant's employees working on the barge but also to anyone who may be on the deck of the barge. In this connection the barge was equipped with cloth, rags and cotton pads which are used to soak up oil spilled on the deck, especially where the spilled oil are in somewhat larger patches as opposed to small drops. After the oil is soaked by cloth, rags or cotton pads, emulsifying agent are used to clean the deck of any residual oil remaining.

6. The deckhands are also supplied with uniform as well as safety shoes. The safety shoes are made of hard rubber. Their purpose are twofold. Firstly they are oil resistant and secondly the soles are grooved so as to give a better or firmer grip with the ground. Likewise, this precaution was undoubtedly taken for the same reason as above - that the Defendant was only too well aware of the risk of slipping on a barge used for transporting waste oil.

The Plaintiff's Case

7. The Plaintiff gave evidence that on the day before the accident, he was instructed to clean out the interior of the six oil tanks installed in the "Wah Tak". This was due to the fact that the "Wah Tak" was about to be inspected by personnel from the Environmental Department of the Hong Kong Government for the purpose of renewing the licence of the "Wah Tak" as a barge transporting waste industrial oil. This inspection was scheduled to take place on the day following that on which the accident occurred.

8. The cleaning out of the six oil tanks resulted in residual oil from those tanks being deposited into waste disposal bags which were left overnight on the deck of the barge on top of a plastic sheet. Notwithstanding all the precaution, some bits of residual oil still managed to seep out of the waste disposal bags onto the deck.

9. On the morning of the day of the accident, all these waste disposal bags with the waste oil in them were removed from the deck of the barge and taken to another smaller vessel to be transported to Tsing Yi Island for disposal. After they had been removed, the deck of the "Wah Tak" had to be cleaned of the residue oil which had seeped out from the waste disposal bags. According to the Plaintiff, he himself, Shek Koon Ying and Lai Kat On were all involved in the cleaning of the deck of the "Wah Tak" that morning. Emulsifying agent was poured onto the deck which was of smooth metal, then the emulsifying agent was spread over the deck with the use of a T-shaped instrument, after which the deck was sprayed with water from a hose to clear away the emulsifying agent and the oil.

10. While the deck was still wet after all this was done, Lai instructed the Plaintiff and Shek to remove a stack of hoses, some of 10 feet and some of 20 feet in length, which were lying in the middle of the deck. It took the three of them to lift each of these hoses one by one to the side of the deck. The Plaintiff and Shek lifted one end each of a hose while Lai lifted the middle of it. In this way the three of them carried one hose at a time from the middle part of the deck to the side of the deck. They had already moved 5 or 6 hoses without any trouble. But when the Plaintiff tried to lift the next hose which was one of the longer ones, i.e. 20 feet long, he slipped on the wet deck and fell down. At once the other two came to his assistance and together they assisted the Plaintiff to the stern of the barge where the Plaintiff was able to lie down and rest as the Plaintiff had felt pain at his lower back after he had fallen and was unable to move. Later that evening after he had returned to his mother's home but because the pain still persisted in his lower back, the Plaintiff called for an ambulance and was taken to the Tuen Mun Hospital.

The Defence Case

11. A number of defences were relied on by the Defendant. Initially one of the defence pleaded was that the Plaintiff was himself to blame for his injury which arose from the Plaintiff trying to lift a 20 feet hose all by himself. However, at the start of the trial, upon the application of the Defendant, I gave the Defendant leave to amend the Defence and this defence was duly abandoned.

12. At the trial, the defence relied on by the Defendant was that the Plaintiff did not sustain the injury to his back as a result of a fall when he slipped on the wet deck of the barge but that the injury was sustained when the Plaintiff lifted the hose, but without slipping or falling.

13. It was also suggested by counsel for the Defendant in cross examination that the Plaintiff did not lift the hose in the proper manner. However, after the Plaintiff steadfastly maintained throughout the cross examination that he had been taught by Lai Kat On and did always lift hoses with a straight back, nothing more was heard of that suggestion.

14. The Defendant did, however, rely on the fact (not disputed by the Plaintiff) that the Plaintiff had suffered a fracture of his spine back in 1991. The suggestion by the Defendant was that this old fracture in some way led to the present injury when the Plaintiff was lifting the hose.

15. The basis upon which the Defendant says that the Plaintiff did not slip and fall when lifting the hose is twofold. Firstly the Defendant points to an affirmation deposed to by the Plaintiff in English in an application by the Plaintiff for interim payment in the Employee's Compensation Case (after judgment by consent had been entered with assessment of damages adjourned) arising from this accident in which it was stated : "as I was lifting it up, I injured my back. I could not stand up any further." The Defendant points to these words to say that the injury suffered by the Plaintiff did not arise from a slip and fall but that the Plaintiff was injured while lifting the hose.

16. When cross examined on these words in his affirmation, the Plaintiff was adamant that he had told his solicitor that he had suffered his injury as a result of slipping and falling on the wet deck of the barge and had left it to his solicitor to prepare the affirmation.

17. Mr. Kenneth Fok, a solicitor from Messrs. Wilkinson and Grist, the solicitors for the Plaintiff in this case as well as in the Employee's Compensation Case gave evidence that at the time he prepared the Plaintiff's affirmation for the interim payment, he did not feel that the exact facts of the accident were so important when liability was already admitted, but that he was more interested in getting an interim award. It should also be noted that exhibited to this affirmation was a report from Dr. Lau Hoi Kuen dated 16th April 1995 in which it was stated, "History ...... on 4th Feb. 1994, Mr. Ho was lifting up heavy objects when he fell and landed on his back." Counsel for the Plaintiff makes the point that from this it must have been clear to Mr. Fok when he prepared the Plaintiff's affirmation what the complaint of the Plaintiff was despite the wording used in the affirmation.

18. Secondly the Defendant seeks to rely upon a medical report of Dr. Yu Kong San of Tuen Mun Hospital dated 29th July 1994 which began with these words, "Mr. Ho complained of sudden onset of low back pain after lifting heavy object on 4.2.1994." These words are relied on by the Defendant to show that the Plaintiff did not slip and fall, but injured his back while lifting the hose.

19. When cross examined on this point, the Plaintiff said that he told the doctor in Tuen Mun Hospital that he was injured at work but was not asked to further elaborate as to the cause of the injury or how the accident occurred. Dr. Yu was called as a witness by the Plaintiff. In cross-examination on this point Dr. Yu said in evidence that the patient did not tell him directly the cause of the injury but that their junior staff are instructed to note down what a patient says as to how the injury was caused and it depended on the individual doctor how much would be recorded down as to the cause of injury. Dr. Yu further explained that in this case it was not very important medically speaking whether the patient was injured due to lifting or falling.

20. Still on this point the Defendant called Dr. Wu Che Yuen, the doctor in Tuen Mun Hospital who had recorded down the cause of the injury as told to him by the Plaintiff. Dr. Wu gave evidence that back pain is a common orthopaedic problem and when he was referred to the hospital records relating to the Plaintiff, he said that on 4th February 1994 he had seen the patient and had asked the patient how he came by the injury and whether he had any history of back injury. As a result of what the patient told him, he had recorded down in the hospital records that the patient had suffered a fractured spine in 1991 for which the patient was admitted to Queen Elizabeth Hospital for a month. It was also recorded down by him that the patient had complained of 'sudden onset of low back pain while lifting heavy object' but there was no record that the patient had fallen or had complained of having slipped. Dr. Wu further said that he would not have simply accepted the patient telling him that he was injured at work and that it was highly unlikely that the patient had told him he had fallen but that this had not been recorded.

21. In cross examination Dr. Wu was asked whether the words "sudden onset of low back pain" came from the patient to which he answered "Yes". When it was further put to him that those words were not the words used by the patient, Dr. Wu agreed with counsel. When it was suggested to him that those words were the words used by him in paraphrasing what the patient had told him Dr. Wu answered saying he could not remember what the patient had said.

22. The defence called as witnesses the Managing Director of the Defendant, Mr. Koh Yak Kheng, a person of extensive experience in the oil trade having worked for Shell for many years in Singapore . His evidence does not touch on the accident directly as he was not present when it happened. He gave general evidence as to the precautions taken by the Defendant to ensure that the deck would not be slippery at all times and that the system of work on the barge was implemented by the supervisor of the Defendant company who reported to him. He told the Court that a brand new 20 feet long hose of the type used on the barge weighs 44 pounds, however he agreed that after usage, oil residue would stick to the inside of the hose thereby adding to its initial weight.

23. Mr. Koh also gave evidence that on the same evening of the accident to the Plaintiff, he had visited the Plaintiff in Tuen Mun Hospital. According to Mr. Koh, the nurse attending the Plaintiff told Mr. Koh that the Plaintiff had aggravated a previous injury in the same region of his back and that on the previous occasion when the Plaintiff was injured he was strongly advised to have an operation but refused despite being warned that if he did not have the operation he could easily hurt his back again.

24. Finally, Mr. Koh gave evidence that the Plaintiff's medical leave expired on 30th April 1994 and the Plaintiff returned to work on 1st May 1994. However, as the supervisor and the foreman feared that the Plaintiff may hurt his back again from work, they refused to assign any work to the Plaintiff resulting in the Plaintiff's employment with the Defendant being terminated in mid-May 1994.

25. Under cross-examination, when asked whether emulsifying agent mixed with water and oil would be slippery, Mr. Koh was initially evasive answering that it depended on what kind of fuel oil, what kind of emulsifying agent or detergent was used and the proportion of the mixture. However when further pressed on the point, he did agree and admit that it was potentially slippery. Moreover, Mr. Koh said that oil spill should be a rare occurrence on an oil barge, but when challenged by Counsel for the Plaintiff that in his evidence in chief he had said that oil spill is part and parcel of the job, Mr. Koh retracted his earlier words by saying that he accepts that oil spill is part and parcel of the job but if one is careful there is no reason for there to be any oil spill.

26. Furthermore in cross-examination Mr. Koh maintained that there was no need to paint the deck of the barge with anti-slip paint since that was not slippery at all and that slipping on deck was a rare occurrence. However, he agreed that the Defendant had a duty to make the work place as safe as reasonably can for the men who work there.

27. He was also asked what detergent or emulsifying agent was used by the Defendant to clean oil residue on the deck of the barge at the time of the accident but replied that he did not know as these were supplied by the contractor, neither could he remember the ratio in which such detergent or emulsifying agent would be diluted with water for the purpose of cleaning oil.

28. Shek Koon Ying was also called to give evidence for the Defendant. His evidence in the witness box relating to the accident in question was that he did not witness the accident to the Plaintiff as he was not on the barge at the material time but was working on the smaller vessel. However, in his witness statement, apart from the fact that it was never stated that he was not on the barge at the time the Plaintiff had his accident, paragraph 20 thereof states, "It was in the process of cleaning the deck, I am told, that the Plaintiff suffered his alleged injury. Also, that happened when he was in the process of lifting a 20 foot hose."

29. Moreover, in the witness box Shek said in chief that he had previously walked on the deck with emulsifying agent and water and found that it was not slippery - not even a little bit slippery because he was wearing safety shoes and yet in cross-examination he said that he had been warned by the foreman Lai Kat On that it would be dangerous to walk on the deck when it was being cleaned with a mixture of emulsifying agent and water. Under those circumstances he believed that the deck would be slippery and therefore he would not bend down to pick up hoses when the deck was being cleaned with emulsifying agent and water.

30. He further agreed that the deck would be more slippery when wet with water (alone) than when it was dry and that that was so even when he was wearing safety shoes.

The Medical Evidence

After the Plaintiff was admitted to Tuen Mun Hospital on 4th February 1994 complaining of intense pain at his lower back radiating down to his legs, he was given analgesics and prescribed bed rest. Initial X-rays had shown an old fracture of the 4th lumbar vertebral body. The pain improved somewhat and he was discharged from hospital on 8th February. However out-patient follow up treatment continued and he was given sick leave until the end of April. When the pain persisted, a myelogram and CT scan was performed in November 1994 which revealed a retropulsion or bursting of the 4th lumbar fracture which led to indentation of the thecal sac and the 4th lumbar nerve root.

31. Thereafter, the Plaintiff was treated conservatively and when there was no improvement, an operation for spinal fusion and pedicle screw fixation was performed in July 1995. However this did not improve the Plaintiff's condition very much.

32. After the operation in July 1995, the Plaintiff was again examined by Dr. Lau Hoi Kuen who found that there was clumping of the nerve root at the 4th lumbar. At that time the Plaintiff was still complaining of pain at his back, pain in his legs, in particular the right leg and frequent leg cramps at night. Dr. Lau formed the view that the Plaintiff's persistent symptoms is most likely due to arachnoiditis and expected these symptoms to persist as there were no further treatment, medical or surgical, which could help him. Dr. Lau further concluded that the Plaintiff would not be able to return to his pre-accident employment as a deckhand but could take up some light work. Dr. Lau assessed his permanent disability to be at 25% and his loss of earnings capacity, taking the change in occupation, to be 50%.

33. On the other hand, the Defendant called Dr. Arthur Chiang who had examined the Plaintiff in December 1997. In effect there is not a lot of differences between these two doctors in so far as the Plaintiff's injuries are concerned. Both are also agreed as to the Plaintiff's pathology, treatment and recovery. Dr. Chiang, however, did not find muscle spasm in the lumbar area or palpable tenderness in the lower lumbar region and he considers the operation in July 1995 achieved a reasonable result. Nevertheless he still found stiffness in the Plaintiff's leg and also the lower spine region when he examined the Plaintiff in December 1997. He deals very little with the aspect of pain in his report.

34. The one major area of difference between them is their assessment of the Plaintiff's disability. Dr. Chiang takes the view that the Plaintiff's permanent disability arising from his injuries come to 15% of the whole person and his loss of earnings capacity is 30%.

Evidence of Non-medical Experts

35. In this respect both the Plaintiff and the Defendant each called as their expert witness a marine consultant. The Plaintiff called Mr. Andrew Moore of Andrew Moore & Associates Ltd., Marine Consultant Engineer and Surveyors and the Defendant called Mr. Q. A. R. Lloyd of Carmichael & Clarke Co. Ltd.

36. Both experts had submitted expert reports each which were put in evidence. In these reports many aspects were canvassed by both experts ranging from the system of works employed to the proper manner of lifting. Ultimately, however, the issue between these two experts boiled down to really two matters - firstly whether a mixture of water, emulsifying agent and oil on the deck of the barge would have made the deck slippery and secondly whether the deck should properly and reasonably have been covered with anti-slip paint.

37. Mr. Moore, called by the Plaintiff, told the Court that emulsifying agents are used to break down the oil without much agitation and thereby the oil could be cleaned off. According to him generally speaking emulsifying agents are slippery and when mixed with water it is even more slippery. When mixed with both water and oil it becomes dangerous and in his words its like 'walking on ice'. He went on to say that if emulsifying agent is to be used with water to clean off oil on a deck, the reasonable thing to do would be to do it in stages - i.e. to ensure that all the slick is cleaned of from one section before another section is attended to and in that way to ensure the whole surface becomes free from residue oil.

38. As to the second point, Mr. Moore disagrees with the suggestion of the Defendant's expert that the pitted surface of the deck of the barge would provide further traction. Mr. Moore takes the view that the deck surface has no residual non-slip properties being simply painted over. In his opinion, it could have been painted over with paint mixed with sand which is what is normally done in oil tankers to make the surface less slippery. Without such non-slip paint, he says, it shows that not enough care has been taken by the employers.

39. As opposed to this evidence of Mr. Moore, Mr. Lloyd was called as an expert in marine matters by the Defendant. He told the Court that emulsifying agent which is an additive used to make the oil form into droplets inside another liquid such as sea water is not slippery and that he had in fact had occasion to walk over it without finding it slippery. When mixed with water it would be more slippery but only because the water is slippery. What was slippery, according to him, was oil degreaseant but that was a green gel usually used in the engine room of ships. One step on that and a person will slip.

40. In respect of anti-slip paint, he acknowledged that on big tankers very often anti-slip paint is applied to pathways that are normally walked on. However he says it would be unusual to find anti-slip paint painted over the entire deck or those parts which the deckhands only use for their work. The reason for this, says Mr. Lloyd, is that anti-slip paint is simply silica added to paint to give it a rougher surface, and that being so, very often the oil gets embedded in the rough surface and is not easy to remove; the only thing that can be done is to remove the paint and put a new coat on. The rough surface is such that dirt impinges on it.

41. For this reason he does not think it reasonable to put anti-slip paint on the deck of the "Tak Wah". According to Mr. Lloyd, the safety shoes issued by the Defendant is sufficient to prevent slipping and there is no need for anti-slip paint.

Findings of Fact

42. The Plaintiff was the only witness who gave evidence as to how the accident happened. No other witness was called by the Defendant to challenge the Plaintiff's evidence in this respect. Shek Koon Ying's evidence was that he was not on the barge, the "Tak Wah", at the time the Plaintiff sustained his injury. Lai Kat On was not called as a witness by either party.

43. I accept the evidence of Kenneth Fok that when the affirmation of the Plaintiff was prepared by him his one concern was to obtain interim payment (liability having been admitted by the Defendant) and did not focus on the details of the accident as much as he should have.

44. I also find that the words "sudden onset of low back pain" in the medical report of Dr. Yu Kong San from Tuen Mun Hospital were not the words of the Plaintiff but more likely the words of a medically qualified person. I further find that if the records from the Tuen Mun Hospital do not show that the Plaintiff slipped and fell, it was because the cause of the injury was not, medically speaking, of great importance, as stated by Dr. Yu in his evidence.

45. In the circumstances, neither the affirmation of the Plaintiff in the Employee's Compensation Case nor what was stated in any of the medical reports from Tuen Mun Hospital cause me to doubt the evidence of the Plaintiff who I find to be an honest and truthful witness. I find that the accident happened in the way as recounted by the Plaintiff in his evidence, namely, on the morning of 4th February 1994 the Plaintiff, Shek and Lai together cleaned the deck using emulsifying agent which was spread over the whole deck made of smooth metal and painted over with normal marine paint. Thereafter water was sprayed with a hose on the deck to wash away the emulsifying agent and residue oil. After spraying the deck with water and when the deck was still wet, Lai instructed the Plaintiff and Shek to assist him and all three of them began to remove one by one those hoses laid out on the middle of the deck to one side of the deck. After removing five or six of such hoses, when the Plaintiff attempted to lift the next hose which was a 20 foot hose, he slipped on the still wet deck and fell on his back resulting in severe pain such that the other two had to support him up, one under each arm, and take him to the stern of the boat where he could lie down.

46. I also find that because the deck was still wet when the Plaintiff was instructed to remove the hoses from the middle to the side of the deck, it was more likely than not that not all emulsifying agent and/or residue oil had been washed away by the water sprayed onto the deck and that the deck was thereby sufficiently slippery for the Plaintiff to have met with this accident.

47. I have no hesitation in accepting the evidence of Mr. Moore that a mixture of emulsifying agent, residue oil and water on the deck of a barge would make it dangerously slippery. This is in fact supported by the evidence of Shek Koon Ying when he said in evidence that Lai had warned him against walking on the deck when it was being cleaned with such a mixture.

48. I also find that the injury sustained by the Plaintiff to be more likely the result of the fall rather than the lifting - because having lifted 5 or 6 hoses immediately preceding the accident there is no evidence that the Plaintiff was in any way feeling uncomfortable or painful until he slipped and fell.

I did not find either Koh Yak Kheng or Shek Koon Ying to be reliable witnesses. On many occasions they were evasive in their answers and in the case of Shek he contradicted himself on a number of occasions. I have great doubts about the accuracy and veracity of the evidence of Mr. Koh as to what he was told by the nurse at the Tuen Mun Hospital for two reasons; firstly the Plaintiff was admitted to Queen Elizabeth Hospital and dealt with there on the previous occasion in 1991 and secondly according to Dr. Yu they had not got the medical records of the Plaintiff from Queen Elizabeth Hospital relating to his previous injury in 1991 on the night the Plaintiff was admitted to Tuen Mun Hospital.

I therefore reject this part of Mr. Koh's evidence.

Liability

49. It is not disputed that an employer is under a duty to provide a reasonably safe place of work for his employees. Moreover, this is not a duty which the employer can delegate to others so as to be absolved from responsibility. In the present case, this duty having been delegated to the foreman Lai Kat On, any breach of that duty on the part of Lai will have to be borne by the Defendant.

50. Based on my findings above, because the deck was still wet and therefore slippery, it was not reasonable in those circumstances for Lai to have instructed the Plaintiff and Shek to lift the hoses and to remove them to the side of the deck. Clearly Lai should have given instructions to dry the deck or allowed the deck to become dry (thereby ensuring that there was no possibility of the presence of emulsifying agent, oil or water or any of them on the deck to make it slippery) before instructing the Plaintiff and Shek to lift and remove the hoses.

51. Moreover, I also accept Mr. Moore's evidence that a further precaution that could have been taken by the Defendant to ensure or maximise the safety of the workplace for the deckhands on the barge was to have the deck painted with anti-slip paint. This in my view would certainly be reasonable in the light of the fact that the barge was used to carry waste oil and from the evidence it appears that whenever any oil was left or spilled on the deck it necessitated cleaning with emulsifying agent and water. Had that been done, this accident may well have been prevented.

52. I therefore come to the conclusion that it was a combination of both these matters, namely the instruction by Lai to remove the hoses when the deck was still wet and the failure of the Defendant to have the deck painted with anti-slip paint was such that the Defendant was in breach of its duty towards the Plaintiff to provide a safe place of work. Accordingly I find the Defendant liable to the Plaintiff for negligence which resulted in the injuries suffered by the Plaintiff.

Contributory Negligence

53. Contributory negligence is relied on by the Defendant in two ways. Firstly, that the Plaintiff lifted the hose knowing that he had a previous bad back which he had failed to disclose to the Defendant during his employment and secondly the Plaintiff failed to take any adequate care of his own safety.

54. Taking the first point, having found as a fact that the injury suffered by the Plaintiff was more likely the result of the fall when the Plaintiff slipped on the wet deck, it must follow that the cause of that injury was from the deck being slippery rather than from the Plaintiff's previous injury. There is a well known string of egg-shell skull cases which lays down the law that if a defendant is negligent, he has to take the victim as he finds him. In the circumstances of this case as found by me above, I do not consider the Plaintiff could be said to be negligent in any way or had contributed to his own injury by lifting the hose when he knew that he had a bad back.

55. As to the second point, that the Plaintiff failed to take adequate care of his own safety, whilst it is true that he knew that the deck was wet at the material time, yet he was instructed by Lai to remove the hoses to the side of the deck. It was not the case that the Plaintiff was doing it for his own convenience or taking a short cut in his work. He was doing the work of his employer and was instructed to do so by the foreman. Given those circumstances I am reluctant to hold that the Plaintiff was himself in any way to blame for the accident. For these reasons I do not consider that the Plaintiff had contributed in any way to this accident.

Pain suffering and loss of amenities

56. Since the Court of Appeal's decision in the landmark case of Chan Pui Kee, the awards for the 'Serious category' of injuries as laid down in Lee Ting Lam starts at $400,000.00. However a number of Hong Kong awards in respect of low back pain and back injury suggest that such injuries fall short of the 'Serious category'. I share that same view. On the other hand, there can be little doubt from the available medical evidence that the pain in the Plaintiff's will likely remain with the Plaintiff for the rest of his life. Pain can range from being a minor nuisance to, in an acute form, severely restricting normal daily activities. Taking into consideration all the medical evidence relating to the Plaintiff here, a reasonable award under this head would be $300,000.00.

Past Loss of Earnings

57. After the accident, the Plaintiff was given sick leave by the Tuen Mun Hospital until 16th October 1995. I accept that up to that date the Plaintiff is entitled to total loss of earnings less the half month in May 1994 when he returned to the Defendant's employment before he was dismissed.

58. The reports from both Dr. Lau and Dr. Chiang suggest that the Plaintiff can take up some form of light work but that he cannot return to his pre-accident work as a result of his injury. However, the Plaintiff's evidence is that he was unable to find any work until October 1996 when he found work as a repair worker at public housing estates earning on average $4,400.00 per month as opposed to his pre-accident wages of $10,000.00 per month.

59. For the period from the accident to the end of the sick leave less the half month for which the Plaintiff returned to work at the Defendant in May 1994, it comes to 20 months and at the pre-accident wages of $10,000.00 per month, the loss of earnings comes to $200,000.00

60. From mid-October 1995 to mid-October 1996 when the Plaintiff was not working at all, I will award a partial loss of earnings of $5,000.00 per month. In using this figure I have taken into account the fact that there would be some increase in the Plaintiff's wages as a deckhand had he continued in that work. This works out for those 12 months to $60,000.00

61. From mid-October 1996 to mid-August 1998 the evidence from the Plaintiff is that he is on average earning $4,400.00 per month. There is also evidence from the Defendant that in 1997, it had ceased the business of collecting waste oil and that both Lai and Shek had been laid off by the Defendant. In those circumstances had the Plaintiff not met with this accident, chances are he would also have been laid off by the Defendant in 1997. Partial loss of earnings of $6,000.00 per month would be a reasonable compensation to the Plaintiff for this period. It comes to $132,000.00.

62. Therefore the total pre-trial loss of earnings comes to $392,000.00. From this sum will have to be deducted the amount of $168,000.00 which represents an advance by the Defendant for the loss of earnings. Damages under this head therefore comes to $224,000.00.

Loss of Future Earnings

63. For the loss of future earnings, I will adopt the same multiplicand as for the loss of earnings from October 1996 to date, $6,000.00

64. As for the multiplier, the Plaintiff was 35 at the time of the accident and 40 at the time of the trial. In his pre-accident work as a deckhand, the work involves heavy manual labour and is not the type of work that a person can continue to do for long after, say, 55 years of age. In the circumstances a multiplier of 10 would be reasonable. This would give an award of $720,000.00.

Loss of Earnings Capacity

65. The Plaintiff also claims for loss of earnings capacity. It is clear from the judgment in Moeliker v. Reyrolle [1977] 1 WLR 132, that before an award under this head is made, there should be shown a real risk of handicap in the labour market. As the evidence stands at present in this case, the Plaintiff being only engaged in temporary casual work as opposed to permanent employment, I am not satisfied that it had been shown the Plaintiff will in future suffer a real risk of handicap in the labour market. I therefore make no award under this head.

Future Medical Expenses

66. This is claimed by the Plaintiff on the basis that according to both doctors his present condition of pain in the lower back and legs will continue and will be permanent. I do not, however, accept that he will need to consult a doctor on a monthly basis as suggested by the Plaintiff. Dr. Chiang, who was called by the Defendant, said in his evidence that the Plaintiff will probably need to spend $3,000.00 a year as future medical expenses. I accept this evidence of Dr. Chiang and I will apply the same multiplier of 10 as for loss of future earnings. This will give an award of $30,000.00.

Special Damages

67. There are no disputes as to the sum of $1,132.00 for medical expenses nor $1,628.00 for travelling expenses and these will be awarded. The Plaintiff also claims $14,400.00 for tonic food. This is disputed by the Defendant on the basis that this has not been proved to be necessary. While there is no evidence adduced by the Plaintiff in respect of tonic food, courts in Hong Kong have for long adopted the practice that depending on the injury and the time taken for recovery, a reasonable sum for tonic food has always been allowed. In this case the accident was in February 1994. Today the Plaintiff still experiences pain in his lower back and legs. This pain will, it seems, continue for a long time. Under these circumstances I shall allow this amount in full for tonic food. Total special damages therefore comes to $17,160.00.

68. Interests

Interests on general damages for pain suffering and loss of amenities will be awarded at the rate of 2% p.a. from date of Writ to date of judgment. This comes to $10,500.00. Interests on pre-trial loss of earnings and special damages will be awarded at the rate of 5.8% p.a. from date of accident to date of judgment. This comes to $62,803.00. Total interests therefore comes to $73,303.00.

Conclusion

69. Accordingly, there will be judgment for the Plaintiff in the sum of $1,364,463.00. There will be the usual Order nisi for costs of this action to be paid by the Defendant to the Plaintiff.

Representation:

Mr. Peter Graham, inst by M/S Wilkinson & Grist for Plaintiff

Mr. Sanjay A. Sakhrani, inst by M/S S.H. Chan & Co. for Defendant