Ma Kam Sang v. Shougang Concord Management Co Ltd and Others

HCPI000839/2001

HCPI 839/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.839 OF 2001

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Coram: Hon McMahon J in Court

Dates of Hearing: 27 April 2004 - 4 May 2004

Date of Judgment: 15 June 2004

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J U D G M E N T

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1.On 19 October 1998 some time after 8:00 a.m. at an open air storage facility at Deep Bay Road in Lau Fau Shan ("the godown"), the plaintiff was struck by a load of 12 metre long concrete reinforcing iron rods being lowered by a crane. The load had initially come into contact with a truck and the trucks movement then further brought the iron rods into contact with the plaintiff. The plaintiff, a senior godown assistant employed at the site and aged 46 at the time of trial, was firstly knocked to the ground by the rods and then suffered a fractured left femur when the two ton load finally came to rest upon his leg.

2.The 1st defendant was at the time the employer of the plaintiff and operator of the godown site, the 5th defendant was the driver of the crane, the 7th defendant was a worker assisting the 5th defendant in the loading operation and the 3rd defendant was the driver of the truck. The 2nd, 4th and 6th defendants were the employers of the 3rd, 5th and 7th defendants.

3.The defendants admit liability for the plaintiff's injuries. They have also agreed an apportionment of damages amongst themselves. Further partial agreement has been reached so far as quantum of damages is concerned as follows :

(1)	PSLA	$250,000.00
(2)	Loss of earnings to end of sick leave (8.12.00)	$259,550.00
(3)	Special damages	$23,332.00
	(medical, travelling expenses and tonic food)

What remains in issue on the pleadings is firstly the defendants' claim that the plaintiff's own negligence contributed to his injuries and secondly the quantum of the amounts claimed by the plaintiff for loss of earnings, both pre-trial and future, and finally loss of earning capacity.

Contributory negligence

4.It is not in contention that at the time of the accident, the plaintiff was on duty within the godown. The godown was effectively a large open area of some 200,000 square feet or so. It was used to store iron rods used in the construction industry. The rods stored there were of various sizes but those concerning this case were each 12 metres long and 20 mm in diameter. The rods were laid out in various stacks or piles set out around the godown. Between these stacks ran laneways. In those lanes were positioned some seven crawler cranes for the purpose of loading bundles of the rods from the stacks onto the backs of large flat bed trucks which would then deliver them to various construction sites. The laneways between the stacks in which the cranes and trucks operated were of various widths.

5.At the time of the accident it is common ground that the plaintiff had walked into the lane in which the crane of the 5th defendant was operating. He had halted and waited as the 5th defendant's crane was in the process of taking a load of rods from the top of a stack. The lane at that point was about 30 feet wide.

6.While he was waiting, the truck driven by the 3rd defendant also arrived in the lane and stopped. It was not that truck for which the load being removed from the stack by the 5th defendant's crane was intended, the 3rd defendant simply wanted to proceed through the laneway.

7.Because the 5th defendant's crane was facing the stack, the rectangular body of the crane extended across the laneway and there was insufficient room for the 3rd defendant's truck to pass through until the cranes body turned and became parallel to the laneway.

8.Whilst the lane was blocked in this way, the general positions of the 5th defendant's crane, the 7th defendant, the 3rd defendant's truck and the plaintiff were as follows : The crane was on one side of the lane facing the stack of rods from which it was loading. The 7th defendant was standing on top of that stack tying the rods onto a bridle extending from the cranes lifting hook. The 3rd defendant's truck was stopped on the other side of the lane and was in a position to pass by the crane only when the cranes body in due course would turn to the left and face down the laneway. When that happened, the truck would pass by. Both vehicles would be left side to left side as the truck passed the crane. The plaintiff was somewhere on the far side of the stationary truck next to the stack of iron bars on the other side of the lane. Accordingly, the truck was between the crane and the plaintiff. The precise distances between the crane, the truck and the plaintiff were in issue, as was the precise location of the plaintiff in respect to where he was standing in relation to the right rear side of the truck.

9.What was not in issue was that the crane, having picked up a bundle of 12 metre long iron bars from the top of the stack was then turned to its left by the 5th defendant so as to be facing back down the laneway in the direction from which the plaintiff and the 3rd defendant's truck had come. It then commenced to lower its load of iron bars.

10.In the normal course of events, the iron bars would have been either lowered longitudinally to the ground on the left hand side of the truck or remained suspended in the air. When suspended, the iron bars were about 15-20 feet in the air.

11.The 5th defendant however lowered the iron bars so that the load came to partially rest on the left rear side of the 3rd defendant's truck. The 3rd defendant at about that same time had commenced to drive forward as there was now sufficient space for him to do so.

12.Because of that the load of bars swung. The furthest end from the crane had been protruding across and out of the rear of the truck. That end of the load then, as it was swinging and as it moved forward with the truck, struck the plaintiff on the lower left leg, which was badly lacerated. He was knocked to the ground. The 5th defendant was unaware of the presence of the plaintiff and decided to further lower the load. As a result it came to rest on the plaintiff's left thigh and broke his femur.

13.So far as the defendants' claim of contributory negligence by the plaintiff is concerned, the issue is whether, without good reason, the plaintiff was standing too close to the zone of operation of the crane, so as to put himself foreseeably at risk of injury.

14.The evidence of the plaintiff in this regard is that he was standing some 2-3 metres back from the right hand rear corner of the 3rd defendant's truck at the time it came to a stop between himself and the crane. He also estimated himself to have been at that time about 13-14 metres from the body of the crane. He thought the trucks left front at that time was about 2 metres from the cranes body.

15.There was some issue as to whether the plaintiff could have been standing behind the right rear corner of the truck as he claimed. Mr Wong, for the defendants argued that it was more likely for him to have been standing further along the side of the truck towards the driver's cabin if he was in a position to be struck by the load protruding from the rear of the truck. But I do not think, in view of the understandable uncertainty as to exactly how the bundle of iron bars behaved once they were lowered and became partially supported by the left side of the truck which began to move, that the plaintiff's evidence as to where he had been standing could be criticized or undermined solely on that basis.

16.I accept from the evidence of DW2 Mr Wong Kam Ming, the supervisor of the godown, that the lane was about 9.5 metres wide, and that the sort of truck driven by the 3rd defendant was about 10 metres long. Those estimates agree also with the plaintiff's evidence in this regard which I also accept. Further I accept the plaintiff's estimates of the distances between himself and the truck and between the truck and the crane. I accept also his estimate as to approximately where he was standing in respect of the truck. I bear in mind that the estimates of position and distance given by the plaintiff were approximations but they were generally consistent with the dimensions and nature of the laneway itself, of the crane and its load and the truck.

17.With regard to his evidence as to how the accident came about, I take the plaintiff's evidence as being reliable. I bear in mind that in proceedings in the magistracy on a summons issued against the 1st defendant, the plaintiff was recorded as saying he was 10 metres from the rear of the truck. That I am satisfied was an answer, if given, which was in error. It was inconsistent with the balance of the plaintiff's evidence in those proceedings. In these proceedings, as the plaintiff pointed out, it was an impossibility.

18.I do not think it matters to the resolution of the issue of contributory negligence even if the plaintiff were standing a few feet further up the right side of the truck. The bundle of iron bars was 12 metres in length. That means that 6 metres protruded each side of the jib of the crane. Accepting, which was never in dispute, that the plaintiff was in fact on the right hand side of the truck he would, I am satisfied on all of the evidence, have been out from under the immediate swinging radius of the bundle of rods suspended by the crane. That is especially true as the load suspended by the crane, it is also common ground, was never wholly transverse to the laneway but was, broadly speaking until it came in contact with the truck, more or less pointing longitudinally down the lane way as it was lowered, and so far as the plaintiff was concerned was therefore at all times suspended above the far side of the laneway and on the far side of the truck.

19.In those circumstances, I am satisfied the plaintiff was not standing too close or within the working area of the crane. I accept from his evidence that if at any stage while the load was suspended above the laneway it had fallen to the ground, its point of impact on the ground would have been some 3 metres from him at its closest. That evidence is also supported by the dimensions of the iron bars and of the truck and the width of the laneway.

20.It may well be that in the conditions as they existed in the laneway at the time, a perfect worker would have stood even further away from the crane and truck and removed themselves from the remotest risk of injury.

21.But the environment the plaintiff found himself working in was not conducive to perfection. The lane was narrow. According to Mr Wong Kam Ming, it was about 9.5 metres wide. There was inevitable congestion in this laneway. There were seven or so cranes working in the various laneways of the godown. Trucks were frequent travellers in those laneways. It was common for there to be congestion. The plaintiff had to go about his daily duties in those conditions.

22.Further in my judgment, the plaintiff was entitled to assume the crane operated by the 5th defendant would confine its operations to the other side of the laneway and would manipulate its load so as to avoid it swinging transversely across the laneway. The truck which arrived in the lane driven by the 3rd defendant was merely passing by the crane and waiting for a clear passage. To the knowledge of the plaintiff, there was no reason for the load to be placed upon it in such a way as to swing across the laneway.

23.I do not think there was anything unusual or dangerous in the nature of the particular operation involving the crane and the truck which should have prompted the plaintiff to stand any further back than he did.

24.Even if the possibility of the truck striking the load for some reason was foreseeable, the load reacting as it did and knocking the plaintiff to the ground when the truck moved forward and the 5th defendant then, apparently to preserve his crane from damage, further lowering the load so as to cause it to fall upon the plaintiff in a part of the lane outside its original radius of operation, in my judgment were events not reasonably foreseeable by the plaintiff. His act in standing where he did was not negligent. Accordingly, there was no negligence of the plaintiff which contributed to his injury.

Quantum

25.I turn now to quantum.

26.The plaintiff was on sick leave for two years after the accident.

27.That period of sick leave ended on 8 December 2000 and it is accepted by him, and it is common ground, that he was fit for some form of work as of that date.

28.I accept from the medical reports of Dr Tsoi Chi Wah, Danny, dated 11 November 2000 and of Dr Lau Hoi Kuen dated 24 February 2000 and 24 February 2002 taken together that although the plaintiff's broken femur had healed well and was in good alignment without noticeable shortening of the leg, there was a possibility of the plaintiff suffering some slight discomfort or pain in the course of his work. I discount to some extent the views of the occupational therapist, Mr Au Yeung contained in his report of 29 May 2003. In my view the plaintiff may have exaggerated his previous jobs physical demands to Mr Au Yeung and I accept that to a considerable extent his views were based on the reliability of the co-operation of the plaintiff. The views of Dr Tsoi and Dr Lau were, convincingly, in relatively close agreement with each other.

29.Nevertheless, the medical evidence as a whole I regard as broadly supportive of the plaintiff's own evidence that his leg still bothers him on certain occasions such as when he has been standing or walking for a period of time.

30.However, unlike his evidence concerning the events and circumstances surrounding the accident itself which impressed me as factual and reliable, in my judgment the plaintiff's evidence relating to the degree of continuing disability he suffers, is somewhat exaggerated.

31.I am satisfied he has some disability. That is, as I have said broadly supported by the medical evidence. I do not accept however that the disability prevents the plaintiff comfortably standing or walking after 30 minutes or thereabouts as he suggested in his evidence.

32.He was apparently able to travel frequently into China to visit his girl friend during the period of his sick leave. He travelled into Wanchai from Yuen Long on a monthly basis to deliver personally his sick leave chits over the two years of his sick leave. The trips into China were reasonably lengthy and were about two hours in length, she living about one hour outside of Shenzhen.

33.The plaintiff married her in 2003 and they have one child. He said in his evidence that he spends a considerable amount of his time in China since the birth of his child.

34.In my judgment, from all of the evidence the incapacity suffered by the plaintiff at the end of the sick leave period could best be characterised as "mild" whereby significant exercise or activity could cause him some minor discomfort in his leg. Dr Tsoi describes the plaintiff's injury as causing him "slight inconvenience" in the event he returned to work and was required to perform heavy work. Dr Lau was of the opinion that the plaintiff could return to work as a godown assistant. Even Mr Au Yeung the occupational therapist at Tuen Mun Hospital found the plaintiff to be able to walk for 30 minutes without any complaint of pain.

Loss of earnings

35.The fundamental issue concerning the question of the plaintiff's loss of earnings relates to the defendants' allegations that he failed to mitigate his loss in this regard.

36.Madam Sze Mei Ha (DW1) was the personal manager of the 1st defendant at all material times. She said in her evidence that she spoke to the plaintiff on the last day of his sick leave (i.e. 8 December 2000). The plaintiff was originally spoken to by a Miss Chan, Madam Sze's assistant.

37.The plaintiff had been offered a job with the 1st defendant as a messenger at the 1st defendant's office in Wanchai. He was offered that job at the same rate of pay he had earned with the 1st defendant prior to his injury. According to Madam Sze the reasons the plaintiff was offered a job as a messenger were, firstly, the 1st defendant had sold the godown at Lau Fau Shan at which the plaintiff had worked prior to his injury, and secondly, it was thought that the plaintiff should be offered light work.

38.According to her evidence, she had been told by Miss Chan that the plaintiff had refused the offer of a messenger's job. She then spoke to the plaintiff and mentioned to him also that there was a possibility of another job at the 1st defendant's remaining godown at Fanling which was used to store documents. She also told the plaintiff of the nature of the Wanchai messenger's job. She denied that the offered job of messenger was not a genuine job when that was put to her in cross-examination. She said the 1st defendant's management had made the decision to offer the plaintiff a job as a messenger a week or so before his sick leave had expired. She said that she and Miss Chan had tried to have the plaintiff come and sit down and talk about the various matters relating to his future employment with the 1st defendant but that the plaintiff had never done so.

39.I found Madam Sze to be a straightforward and reliable witness. When she could not remember a particular matter or detail she said so. She had no motive to mislead the court. She frankly admitted that relations had become strained between her and the plaintiff when he had brought an action against the 1st defendant in the Labour Tribunal concerning his long service leave, some time after he had refused the offer of the messenger's job at Wanchai. She agreed the plaintiff had expressed concern about Wanchai being too far away from where he lived in Yuen Long district and had mentioned that his leg caused him pain when he travelled.

40.The plaintiff in large part accepted Madam Sze's version of these events with some significant exceptions. He alleged that Madam Sze had told him he would not have to do anything as a messenger and as a result did not think it was a genuine job. Madam Sze strongly denied this and said the 1st defendant would not employ a person just to let them sit there and get paid.

41.The plaintiff said in evidence that he thought if it was not a genuine job and he accordingly resigned, he would lose his long service payment. He said he also was not sure he could perform the work of a messenger, and did not know what a messenger was supposed to do. However, he finally said in his evidence that the fundamental reason he declined the job of messenger offered by the 1st defendant was because of his leg pain. He said at that time his leg became painful after only 20 minutes walking.

42.In my judgment, the plaintiff's evidence must be rejected in that regard. He applied for various jobs in a plastic factory and a container storage yard in 2002. He said he thought he could do these jobs as his leg pain had lessened by then. There was no medical basis in the evidence for any such dramatic improvement in his leg. I reject the plaintiff's evidence as to why he refused the 1st defendant's job offer. The job itself comprised light duties. The delivery of office documents in an office comprising of three floors connected by lifts does not seem onerous. The offer was a generous one. It carried with it the real possibility of the plaintiff transferring in due course to the 1st defendant's other godown in Fanling, although the plaintiff said he had not been informed of this.

43.I do not think the nature of the residual pain suffered by the plaintiff could have caused him any real difficulty in travelling from the Yuen Long district in which he lived to Wanchai. That is a considerable trip in Hong Kong terms but there are various transportation alternatives. The plaintiff, as I have said seemed able to travel into China for personal reasons and to Wanchai to deliver his medical chits. On balance I conclude that transportation difficulties were an excuse offered by the plaintiff rather than a real problem.

44.I am led to the conclusion therefore that the plaintiff unreasonably refused to mitigate his damages by taking up the offered job. It seems to me to be probable that his reasons for doing so may have been that he was not attracted by the concept of working as a messenger in Hong Kong, when at that time, after two-years sick leave, he had become accustomed to spending considerable periods of time with his girl friend (subsequently his wife) and child in the Mainland.

45.I am satisfied that the two fundamental reasons advanced by the plaintiff for refusing the offered job cannot be given any credibility, i.e. the degree of leg pain he was suffering at that time and his fear that the job was not a genuine job. I find against him on both those matters.

46.Unfortunately for the plaintiff, the consequences of him failing to take up the job offer are considerable. The 1st defendant is a large and stable company in Hong Kong. It has, I am satisfied, a reasonable and responsible attitude towards its employees. The job offered to the plaintiff was a genuine offer of re-employment with the 1st defendant which allowed him the likelihood of a long term and stable employment.

47.In the circumstances of the case, I am satisfied the plaintiff unreasonably refused the offered job and by doing so failed to mitigate his loss of future earnings from 8 December 2000 onwards. Accordingly, I make no award of loss of earnings from that time onwards.

Economic loss

48.The final matter in dispute between the parties is the plaintiff's claim for economic loss.

49.There is no doubt that the plaintiff's leg injury has left him with a mild incapacity in his left leg.

50.The previous working experience of the plaintiff was restricted to work which on occasion required agility and physical effort. The injury he suffered and the resulting disability, though mild, has a direct bearing on his ability to do that sort of work. Should he once again return to the labour market, even if he had taken up the job offer of the 1st defendant, I am satisfied he would have competed at a significant disadvantage to others.

51.I appreciate that the job offered to him by the 1st defendant was likely to be long term and stable so that the chances of the return of the plaintiff to the labour market were consequentially lessened.

52.Nevertheless, it is a reality in the labour market in Hong Kong that no job is necessarily permanent and that the plaintiff would find it difficult to compete for a job at the same level of pay.

53.He is still relatively young. In my judgment, an award of $100,000.00 is appropriate. That represents about one year's wages.

Conclusion

54.That then results in the following award of damages to the plaintiff.

1.	PSLA	$250,000.00	(agreed)
2.	Pre-Trial loss of earnings	$259,550.00	(agreed)
	(up to 8 December 2000)
3.	Post-Trial loss of earnings	NIL
4.	Loss of earning capacity `	$100,000.00
5.	Special Damages	$23,332.00	(agreed)
	Sub-Total :	$632,882.00
6.	Less ECC award	$256,721.00
	Total :	$376,161.00

55.I order nisi interest at 2% on general damages from the date of writ until the date of judgment and at 4% on special damages from 19 October 1998 until the date of judgment.

56.I also order nisi costs to the plaintiff to be taxed if not agreed.

Representation:

Mr Geoffrey Chang, instructed by Messrs Marie Tsang, Dustin Chan & Co., for the Plaintiff

Mr Charles Wong, instructed by Messrs Y.C. Lee, Pang & Kwok, for all Defendants