Lee Kin on v. Chit Luen Transportation Co Ltd

HCPI 979/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 979 OF 2007

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BETWEEN

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Before: Deputy High Court Judge Longley in Court

Date of Hearing: 17 November 2008

Date of Judgment: 1 December 2008

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J U D G M E N T

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1.The plaintiff, now aged 46, claims damages for personal injuries against the defendant, his employer, arising out of an accident which occurred at about 9:30 a.m. on 25 April 2005 at the carpark rented by the defendant near the Kwai Chung Container Terminal.  The plaintiff alleges negligence, breach of his contract of employment and breach of statutory duty. 

2.At the time of the accident the plaintiff was employed as a container truck driver.  He had worked for the defendant for nine years.  

Liability

The plaintiff’s evidence

3.The plaintiff alleged that from the start of his employment with the defendant, Mr Chow Lee Pak, one of the company’s directors would from time to time instruct drivers to repair damaged containers before delivering them to the Kwai Chung Container Terminal.  On the day in question he had been delivering a refrigerated container back to the terminal when one of the checkers employed by the terminal, who was standing on a bridge above him, informed him that there was a hole in the roof of the container.  Mr Chow Lee Pak had recently suffered a serious stroke but since his instruction had been that drivers should use their own initiative to repair damage to containers, the plaintiff had driven the container back to the carpark used by the defendant company. 

4.At the carpark the defendant company kept a container in which it stored equipment for repairing damaged containers including an electric drill, aluminum sheets, a rivet gun and glue.  A simple ladder with cylindrical steps was also stored under the storage container. 

5.The plaintiff placed the foot of the ladder on the platform between the cab of his lorry and the container and rested the top against the container and climbed to the roof of the container.  Having climbed down the ladder he was in the course of ascending the ladder again holding an electric drill in one hand and holding the ladder with his left hand when, because he was preoccupied with the repair task he was about to undertake, he inadvertently missed the step of the ladder with his right foot.  This caused him to lose his balance.  His left foot caught the ladder and he and the ladder fell to the ground beside the container truck.  He landed on his right heel. 

The defence evidence

6.Mr Leung Fuk, the second director of the defendant company, gave evidence that the plaintiff’s duties were confined to driving the company’s vehicles and did not include repairing containers.  He said that if there was damage to a container the driver should have driven the container to a designated container repair yard.  He maintained that the tools referred to by the plaintiff were for the repair of the company’s vehicles, not containers.  He frankly admitted however that his responsibilities within the company were primarily administration, management and dealing with customers at the company’s office in Tung Chung Street and that it would be Mr Chow Lee Pak who was involved in the daily operation of the container trucks and giving instructions to drivers.  

7.In the circumstances there was no reason to disbelieve the plaintiff as to how the accident occurred and the instructions that he said had been given by Mr Chow Lee Pak.  Mr Kuk Kuen Chiu (PW1) who formerly ran his own container truck company and rented carpark space in the same carpark gave evidence that he had seen drivers employed by the defendant including the plaintiff repairing containers.  It was obvious from the terms under which the defendant company took delivery of containers (see page 48(f) of the trial bundle) that it would be liable for any damage to a container which had not been noticed when it had first taken delivery of it.  It is reasonable to infer that it would be cheaper for minor repairs to be undertaken by the defendant’s employees rather than go to the trouble and expense of driving the containers to a designated repair yard. 

8.The Form 2 “Notice by employer of an accident to an employee” submitted by the defendant to the Labour Department three days after the accident states that the accident had occurred while the plaintiff was preparing to climb to the top of the container.  There is no apparent reason why the plaintiff would have wished to climb to the top of the container other than to effect a repair. 

9.I am satisfied that the defendant company was in breach of duty to the plaintiff by failing to provide him with a safe means of access to the place on the container where he was to effect the repair.  The ladder was about 10 feet long.  The top of the container when loaded on one of the defendant’s trailers was about 13 to 14 feet from the ground.  I am satisfied that it was foreseeable that a worker might miss his footing on the ladder and in such circumstances fall with the ladder not just to where the foot of the ladder was resting on the vehicle but to the ground beneath. 

10.I find that there were a number of steps a prudent employer could have taken which would probably have ensured that the plaintiff did not receive the injury he did.  Even if it was impractical to install a scaffolding structure there should have been some means of affixing or securing the ladder to the top of the container or otherwise stabilizing it so that if an employee missed his step, the ladder itself would remain stable and provide something to which the employee could hold to avoid falling to the ground.  Even the presence of another employee holding the ladder could have achieved this object. 

11.A stepladder with rectangular steps rather than tubular rungs would probably have prevented the plaintiff missing his step.  A lifeline which the plaintiff could attach to one of the top corners of the container was another practical means which would have prevented the plaintiff falling to the ground. 

12.I am satisfied that this is not a case where any contributory negligence should be attributed to the plaintiff.  The plaintiff was engaged in transporting the tools to effect the repair to the top of the container.  It is understandable that he would have been preoccupied with that task and the repairs he was about to effect and might momentarily and inadvertently omit to pay attention to his own safety.  The remarks of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd [1940] AC 152 are particularly apposite :

“The Jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins … What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety …”  [My emphasis]

Quantum

13.Following the accident the plaintiff was taken to the Accident and Emergency Department of Princess Margaret Hospital (“PHM”) where he was admitted to the Department of Orthopaedic and Traumatology.  An x-ray revealed that he had sustained a severe facture of the os calcis of the right heel.  Four days later he underwent an open reduction with internal fixation (a plate and multiple screws) and bone grafting.  Sixteen days after admission to hospital he was discharged but referred for outpatient physiotherapy and occupational therapy. 

14.Despite intensive physiotherapy and occupational therapy he did not have a full satisfactory recovery.  By November 2005 he reported that he felt he had only had a 50 to 60% recovery.  He still complained of residual heel pain and stiffness and his lifting capacity was limited. 

15.He was referred to have a driving assessment.  This resulted in the Transport Department validating his licence for vehicle types I and II but he was disqualified from driving tractor trailers.  The report of the occupational therapist dated 14 December 2005 stated that the plaintiff needed to change occupation and advised that he should avoid work that requires heavy lifting, climbing on ladders or scaffold and prolonged walking. 

16.In a report dated 25 August 2006, Dr K.P. Chan noticed that the operation had not been successful or satisfactory.  The plaintiff still suffered from persistent pain, but he stated that he should be able to drive a taxi or private car, especially if the pain could be alleviated by certain treatments, one of these was the removal of the plate and screws. 

17.This was carried out at PMH on 13 April 2007.  Dr Chan’s suggestion of a lateral ostectomy (shaving away the lateral wall of the os calcis) was not carried out.  I have no evidence as to why this is so.  Dr Chan’s other suggestion, namely a salvage fusion operation was refused by the plaintiff when he could not be assured it would relieve the pain.  

18.The plaintiff’s current complaints include pain in his right heel and ankle, usually occurring when his foot is kept in position for over one to two hours as when stepping on the foot pedal when driving.  He needs to wriggle his ankle to gain relief.  He is not able to walk fast or run and needs often to take a short rest.  He says he now needs to use a stick.  In so far as his latter complaint is concerned I note that the occupational therapist’s report in December 2005, which was made after the plaintiff had undergone three sessions a week over three months, stated that the plaintiff “walked on level ground with normal gait, but his stairs climbing stability was fair only”.  I am not satisfied that the plaintiff needs to use a stick except for prolonged walking. 

19.Dr K.P. Chan’s most recent report of 30 April 2008 states that the plaintiff :

“… should be able to continue driving taxi and the amount of work hours/work days, as well as the rest period in between, would need to be ascertained by the actual participation. 

He can take up any job which does not need prolonged standing and walking such as private car driver, telephone operator, or security guard.”

Damages

(a)  Pain, suffering and loss of amenities (“PSLA”)

20.It is common ground that the plaintiff’s injuries fall within the category of serious injury. 

21.I award him $500,000 under this head. 

(b)  Pre-trial loss of earnings

22.It is agreed that the normal earnings of the plaintiff of time of the accident were $15,000 per month.  The periods of formal sick leave given to the plaintiff totalling 320 days are also agreed.  

23.The plaintiff only resumed work in June 2007, two years and two months after the accident but two months after the operation to remove the hardware from his ankle on 13 April 2007.  He claims that he was unable to resume working until then because of pain.  In the light of Dr. K.P. Chan’s evidence of the probable encroachment of a screw into the joint causing pain, I accept that it was reasonable for him to defer seeking a job until after the second operation.  It is reasonable therefore that he should not have gained employment until June 2007.  

24.His loss of earnings over the 26 months between April 2005 and June 2007 are therefore be recoverable :

(i.e. $15,500 x 26 months = $403,000). 

25.The plaintiff’s evidence was that from June to October 2007 (four months), he was able to work as a taxi driver for six days a month at $200 a day (i.e. $1,200 per month), then from October 2007 until May or June 2008 (eight months), he was able to work for seven days a month at $300 per day (i.e. $2,100 per month) and that from then until now (five months), he has been able to work 12 days per month at $300 per day ($3,600 per month). 

26.I do not consider that the plaintiff has made all reasonable attempts to mitigate his loss since June 2007.  He does not have to work as a taxi driver which involves almost continuous driving throughout his shift.  If he wishes to continue to drive as an occupation, he would be better suited to employment as a private driver which would almost inevitably allow him breaks which would ease the pressure on his ankle.  I do not find that a single visit to the Labour Department some time prior to May 2007 represented a reasonable attempt to obtain such employment.  Even if such employment was not available I find he could have found an employment as a security guard. 

27.I consider that he is now capable and was capable of earning $6,000 per month since June 2007.  

28.I assess his loss of earnings from June 2007 until trial as follows :

($15,500 - $6,000) x 17 months = $161,500. 

29.His total recoverable pre-trial loss of earnings are therefore :

$403,000 + $161,500 = $564,500. 

(c)  Pre-trial loss of mandatory provident fund (“MPF”)

30.His pre-trial loss of MPF would be :

$564,500 x 5% = $28,225. 

(d)  Future loss of earnings

31.The plaintiff is now 46.  I consider a multiplier of 9 to be appropriate.  His future loss of earnings are therefore :

($15,500 - $6,000) x 12 x 9 = $1,026,000. 

(e)  Future loss of MPF

32.His future loss of MPF is :

$1,026,000 x 5% = $51,300.

(f)  Special damages

33.Special damages were agreed at $9,000. 

(g)  Future medical expenses

34.The plaintiff has not pursued this claim.  

35.I award damages as follows :

(a)     PSLA	$500,000
(b)    Pre-trial loss of earnings	$564,500
(c)    Pre-trial loss of MPF	$28,225
(d)    Future loss of earnings	$1,026,000
(e)     Future loss of MPF	$51,300
(f)     Special damages	$9,000
Total :	$2,179,025
Less: Employees’ Compensation received	$244,360
Net Total :	$1,934,665

36.The plaintiff is entitled to interest on PLSA at 2% from the date of service of the Writ until judgment and interest on pre-trial losses at 4.125% from the date of accident until judgment.  Thereafter at judgment rate until payment. 

37.I make the following order nisi as to costs unless either party applies to be heard on the question of costs within 14 days, the plaintiff’s costs to be taxed and paid by the defendant.  

Mr Tim Kwok, instructed by Messrs Mike So, Joseph Lau & Co., for the Plaintiff

Mr Victor Gidwani, instructed by Messrs Day & Chan, for the Defendant