Tsang Yip Kwong v. Ng Kwong Yui t/a Ng Yiu Kee Transportation Co

HCPI 1186/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1186 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Carlson in Court

Dates of Hearing : 16 and 19 December 2005

Date of Judgment (Handed Down) : 4 January 2006

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J U D G M E N T

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Introduction

1.This is a claim for damages for personal injury brought by the Plaintiff Mr Tsang Yip Kwong who says that he was injured on 9 May 2002 in the course of his employment with the Defendant company.  The Plaintiff, now aged 46, was employed by the Defendant which is in the business of unloading cotton bales which arrive in Hong Kong packed in sea-going containers and then arranging for their loading onto lorries for their onward transportation for processing at a textile factory.

2.The Defendant does not accept that the Plaintiff was injured on the day that he says he was nor, in the way that he has described to me in the course of the trial.  Alternatively, it contends that, if the Plaintiff is able to prove that he was injured as and when he says, then this was not due to any negligence or breach of statutory duty on its part.  There is also a further plea, should it arise, of contributory negligence on the part of the Plaintiff.

What the Plaintiff was employed to do

3.I am only concerned with one aspect of the Plaintiff’s duties which relates to the unloading of the cotton bales from the containers.  A brief description of this work is required.  Bales of cotton, each weighing 250 kilograms, are imported into Hong Kong by sea packed into 40-foot containers.  These are packed tightly together and in an orderly manner as is shown in the bottom photograph at page 102.  The nature of the bales is well depicted in the photograph but there is an even clearer diagram, in sketch form, at page 87e.  Although perhaps rather exaggerated in the sketch, it is a fact that the bales are looser and soft at their ends where there is no iron wire at that position to bind them tightly.

4.The bales have to be removed one at a time by the Defendant’s workmen.  Each workman is supplied, as was the Plaintiff, with a handcart or trolley (see the photograph at page 103) onto which he would be required to load the bale of cotton and wheel it away to the Defendant’s nearby godown.  A particular feature of these trolleys is that they have short metal prongs, or tusks, as they were referred to, at the front.  The recognised technique appears to be that the workman will wheel the trolley up to the bale and jab the prongs into the looser cotton at the bottom of the bale.  This would then engage his load and, if necessary, using a metal hook that he was also provided with he would tilt the bale backwards onto the frame of the trolley and then reverse out of the container and wheel his load away to the godown for temporary storage.  Given the size and weight of the bale the process may well require the workman to prise out the bale with short teasing movements until he had moved it out sufficiently securely onto the prongs and then tilt it backwards onto the frame of the trolley.  The Plaintiff told me that this process would sometimes entail him having to stand with one and sometimes both feet on one of the lower horizontal bars just above the axle bar of the trolley to move and tilt the bale onto the frame of the trolley.  The top picture at page 104 shows a bale being transported on a trolley.

5.It is quite clear that this work requires considerable strength and physical exertion with a succession of workmen, sometimes 2 abreast, going into the container and in relays disgorging its cargo of cotton bales.  This is a job that the Plaintiff had been doing for about 17 years most of them as an employee of the Defendant.  The method that I have described is the one that is used throughout this industry.  It has been suggested that a motorised forklift truck should have been used, instead of this labour intensive manual method, as part of the case against the Defendant that it did not employ a safe system of work, to which I will need to make specific reference in due course.  Forklift trucks of this type are used by the Defendant to move the cotton bales about their godown and in the process of loading them onto lorries or goods vehicles for transportation to the textile factories.  The Plaintiff was also required to drive a forklift truck in the course of his daily work which he would do in the early part of the day in order to clear away bales from the godown in order to make space for bales that were to be manually unloaded from the containers, which he would start doing in the late morning and in the afternoon.

How the Plaintiff says he was injured

6.He says that on 9 May 2002 he was one of 6 workmen who were doing this work.  About two-thirds of the container had been cleared when he moved forward to remove the next bale.  He pushed the prongs of his trolley into the bottom of the cotton bale and stood on its lower horizontal bar so as to generate an upward force but on this occasion the foot of the bale was so loose that the prongs did not take a secure hold into the bale with the result that the trolley “flipped” and he sprained his neck as a result of the unexpected movement of the trolley.  He felt a sharp pain and then reported what had happened to his superior Mr Ng who told him to go for medical assistance at Princess Margaret Hospital, which is what he did.

7.This perfectly straightforward account has given rise to a very sharp dispute of fact as to whether the accident occurred at all.  This really arises so far as the Defendant is concerned from two aspects of the evidence.  Firstly, due to the fact that the Plaintiff undoubtedly had pre-existing degeneration of his neck and shoulders, which up to that point had been symptomless, no doubt caused by the physical effort of doing this job over the years and secondly, because of certain statements made by him to his treating doctors and the staff at the hospital which tend to suggest that he had injured his neck sometime prior to 9 May.  There is also the added feature which Mr Wong, for the Defendant, draws attention to, which is that his description of the accident in court differed somewhat from that which appears in his Witness Statement.

The Contested Evidence

8.As to these matters, the Plaintiff relies not only on his account but also on the evidence of a work colleague, Mr Zhau, who was outside the container and waiting for his turn to enter the container after the Plaintiff had removed the bale that he was in the process of transporting.  Mr Zhau says that he heard the Plaintiff shout from inside the container something like; “Damn it I’m injured” and that the Plaintiff then emerged from the container and told him about it and then went to report what had happened to him to his superior.  This witness therefore tends to corroborate the Plaintiff as to the occurrence of this incident as to its time and date.

9.The early medical notes show that the Plaintiff is recorded as telling the medical staff that he had been injured on different dates, all prior to 9 May although there are many more subsequent references to him consistently telling the medical staff that he had been injured on 9 May.

10.The Defendant’s case really starts with Mr Ng’s evidence who says that on 9 May after finishing work in the morning, the Plaintiff told him that on the previous day, the 8^th, he had sprained his neck whilst in the process of removing a bale of cotton.  He had told Mr Ng that this happened when he “experienced a sudden jerk to his neck when the trolley lost its grip on one of the bales …”.  Because of this he told the Plaintiff to go and see a doctor.  In the afternoon of the 9^th, the Plaintiff telephoned him and told him that the doctor had given him sick leave.  Mr Ng’s evidence is challenged by reference to the fact that in Form 2, by which he made, as required of him, the accident report to the Labour Department, he has recorded 9 May as the date of the accident [page 266e].  He has recorded the time of the accident as having occurred at 10:30 am.  His explanation for this is that he entered this date because this was the date when the Plaintiff had told him that his sick leave was to start.

11.The second limb to the Defendant’s case are the references in the medical notes.  The first reference at page 140, when he attended the A & E department of Princess Margaret at 2:08 pm he is recorded as having told the nurse at 2:18 pm that he had neck pain for a few days.  There was no trauma.  Shortly after that he saw a doctor and told him that he had sprained his neck “two to three days before”.  Six days later on 15 May (page 141) he told the nurse that he had neck pain for two weeks, and when seen by the doctor later that day he told him that he had sprained his neck three weeks ago.  On 12 July at the orthopaedic clinic, although he referred to his injury as having taken place on 9 May, he said that it had happened when he “slipped” and fell at work several times – by afternoon, tea time he noticed pain at the back of his neck.  This, of course, being a quite different version to the account advanced before me.

12.Unsurprisingly, Mr Wong for the Defendant submits that this must seriously call into question the Plaintiff’s case that he was injured on 9 May and in the way that he has suggested.  This is a case where on the first two occasions at hospital and to two nursing officers and two doctors he mentioned different dates and not one of them being 9 May.  It would have been the simplest matter to say, if that was really true, that “I was injured earlier in the day” [on his first visit on 9 May – page 140] and on 15 May, the second visit [page 141] that, “I was injured on 9 May” or “I was injured last week”.  Nevertheless, a completely different picture emerges from these references [pages 140 and 141].  Mr Wong accepts, as he must, that there are many subsequent and consistent references in the medical notes to an injury on 9 May, but Mr Wong suggests that this could very easily be explained, as a date to subsequently provide, being the start of his period of certificated sick leave.  As to the suggestion that the doctor and nurses at pages 140 and 141 have got it down wrong, Mr Wong submits that this would be highly unlikely particularly if the Plaintiff had told them that he had been injured that day [page 140] and last week [by 15 May page 141].  He asks rhetorically, would they in such circumstances have wrongly recorded four different dates on separate occasions?  The overwhelming likelihood is that this is the information that had actually been provided to them by the Plaintiff and that on these occasions he was providing a truthful account.

13.The importance of this point is not to be lost because of course the Plaintiff bears the burden of proving that the injury that he sues for happened in the way and on the occasion that he says it did.  If he cannot carry that burden, his action must fail.

14.Mr Wong submits that what has happened here is that the Plaintiff must have carried these pre-existing degenerative changes without any symptoms and that on 9 May the symptoms that came as a result of his degeneration were such that he decided to report his painful neck to his superior who suggested that he go and see a doctor.

15.As against that Mr Stephen Lau, for the Plaintiff, places strong reliance on the fact that the Plaintiff’s shout that he had been injured was heard, if not seen, by Mr Zhau thereby corroborating the Plaintiff’s evidence and also that Mr Ng had recorded the date of the injury as being 9 May as well as the many references to 9 May in the medical notes after the entries on 9 May [page 140] and 15 May [page 141].

16.I also must have regard to the albeit, only slightly, different versions as to how precisely the injury occurred given firstly in the Plaintiff’s Witness Statement and subsequently in court.  There is also the quite different account to the doctors on 12 July [page 148] as to “slipping and falling at work several times”, which is of course materially different from the pleaded case.

Conclusion on this aspect

17.When viewed against the perfectly simple primary case presented by the Plaintiff as to how the trolley failed to properly engage the bottom of the cotton bale on 9 May, which caused it to suddenly and unexpectedly flip and cause a neck sprain, the various versions given to the medical staff on 9 and 15 May and the account as to how the injuries occurred as given by him on 12 July lead me to seriously doubt the account given by the Plaintiff before me particularly against the background of his pre-existing degenerative changes.  I am also impressed by the evidence of Mr Ng, who I found to be an honest and very straightforward individual, who told me that the Plaintiff had complained to him on 9 May that he had experienced a painful neck on the previous day, the 8^th, which prompted him to tell the Plaintiff to go to hospital.  I have not left out of account Mr Zhau’s evidence, but when I weigh that with all the other evidence to which I have referred, I am not prepared to accept what he has told me.  It seems to me that the most likely explanation for all of this is that by 8 May the Plaintiff’s hitherto asymptomatic degenerative changes to his neck and shoulders had become painful and as Mr Ng has told me he reported these to him on 9 May which is why Mr Ng has recorded the date of the accident in Form 2 as 9 May also being the start of the Plaintiff’s period of sick leave.  This being my view of the evidence the Plaintiff has not persuaded me that he was injured on 9 May nor in the way that he has suggested.  This being so, the action must fail and there must be judgment to the Defendant.

In the event that I am held to have been wrong

18.For the sake of completeness, I propose to consider whether the account given by the Plaintiff as to how he was injured discloses negligence on the part of the Defendant as pleaded in the Statement of Claim.

19.I accept Mr Ng’s evidence that this method of emptying containers of their load of cotton bales is the one that is used throughout the industry.  This being so, what Sir Alan Huggins VP said in Cheung Pun v Hsin Chong Construction Company Limited and others [1986] HKC 454 is relevant to my assessment of the evidence.

“

It is, of course, not to be assumed that every common practice is proper (Cavanagh v. Ulster Weaving Co Ltd [1960] AC 145), but a court should be slow to condemn a practice which has received widespread acceptance in an industry, provided always that it is not manifestly unsafe and has been accepted only because it is profitable.”

In this case this task is done by the Defendant’s workmen hundreds of time each day without apparent mishap.  The Plaintiff himself has performed this task for 17 years without serious incident.  I have no doubt that he would have told me about it if he had.  It strikes me as a thoroughly appropriate method where the trolleys that are used have been specifically designed with their short sharp tusks adapted so as to puncture the bottom of the cotton bales in order to get a grip so that the bales can be tilted backwards onto the trolley frame.

20.Complaint is made that a forklift truck should have been used.  Mr Ng says that this would be slower – which it would undoubtedly be – and that the heavy forklift truck would damage the floor of the containers, which is a very material consideration.  I do not consider the use of a forklift truck to be appropriate in these circumstances.

21.The Plaintiff says that the container was dark and therefore he could not see how loose the bottom of the bale that he was working on was.  The container should therefore have been illuminated.  I do not believe that this would have been necessary.  This work does not involve a fine touch by the workmen.  Whilst the removal of a bale requires a certain amount of “feel”, this can and is done by touch and experience.  The workman will push the prongs/tusks of the trolley into the bottom of the bale and by his sense of feel will soon realise whether he has securely engaged the bale.  He can then gently at first, tease it out of its row and then tilt it backwards.  I do not believe the lack of good lighting had a part to play in this.

22.Whilst this is labour intensive work, which requires strength, the equipment and the methods used were perfectly sensible and appropriate to the task.  I do not believe that any valid criticism can be made as to the system of work employed by the Defendant nor that there would have been any negligence or breach of statutory duty.

Damages

23.I propose to briefly indicate the damages that I would have awarded had I found for the Plaintiff.

Pain and Suffering and Loss of Amenity

24.This is agreed at $180,000.00.

Special Damages

25.These are agreed at $17,000.00.

Pre-trial loss of earnings

26.The Plaintiff’s earnings have been agreed at $20,908.00.  The certificated sick leave is for 527 days from 9 May 2002 to 6 June 2003 and from 11 June 2003 to 21 October 2003.  Dr Lau, the Defendant’s medical expert, says that one year would be appropriate for this type of injury.  The period claimed by the Plaintiff is also the one that has been confirmed by the medical assessment board and I would have allowed for the whole of this period.  The award would have been $20,908.00 x 17.5 months = $365,890.00.

Thereafter, I would have had to consider what employment the Plaintiff could have returned to.  I accept that he could not have gone back to his pre-accident employment.  Mr Stephen Lau says that it could only be as a watchman or such other undemanding work which would pay about $6,000.00 and that I should also allow a further period of 6 months for him to find such work.  Mr Wong submits that he can work as a forklift driver, which was part of his duties, or other driving work.  This would pay $10,000.00 a month.  Mr Lau says that given the pain he feels when turning to look around would disqualify him from driving.

My view is that he could drive perfectly satisfactorily.  He could adapt to any difficulty in turning around by moving more of his upper body to make up for any loss of neck mobility.  This would therefore give a multiplicand of [$20,908.00 – $10,908.00]=$10,000.00.  I would have provided no added time to find work given the already generous sick leave, when he could have started looking for work during the latter part of his sick leave period.  This would therefore give a further period of pre-trial loss of earnings from 21 October 2003 to the date of trial, 16 December 2005 at the rate of $10,000.00 a month.  The further sum would be $10,000.00 x 26 months = $260,000.00.

The total of pre-trial loss of earnings would be [$260,000.00 + $365,890.00 x105% to compensate for 5% loss of MPF] = $657,184.50.

Future loss of earnings

27.Given the Plaintiff’s age, I would have selected a multiplier of 7, giving $10,000.00 x 12 x 7 x 105% = $882,000.00.

Loss of Earning Capacity

28.I would have awarded nothing, having regard to what I have already provided, as a substantial amount for future loss of earnings.

TOTAL
PSLA		$180,000.00
Specials		$17,000.00
Pre-trial loss		$657,184.50
Future loss		$882,000.00
MPF, already included in pre-trial and future loss		-
		$1,736,184.50
	Less EC payment	$406,874.00
AWARD		$1,329,310.50

Interest would have been added as appropriate.

The ultimate result

29.In view of my finding on liability, there will be judgment to the Defendant with costs.  The Plaintiff will have legal aid taxation of his costs if appropriate.  This order for costs is an order nisi in the usual way.

Mr Stephen Lau, instructed by Messrs Huen & Partners, for the Plaintiff

Mr C K Wong, instructed by Messrs Krishnan & Tsang, for the Defendant