Bitto v. Cheng How Kiu t/a Union Travel Co

HCPI 823/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 823 OF 2008

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BETWEEN

Before : Deputy High Court Judge Burrell in Court

Dates of Hearing : 23-24 February 2010

Date of Judgment : 8 March 2010

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JUDGMENT

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1.On 4 November 2006 the plaintiff, during the course of his employment with the defendant (for whom he had worked for about 9 years since the age of 20) sustained an injury to his left forearm.

2.The description of how the accident occurred, which follows, is a summary of my findings based on all the evidence.  It does not include every issue upon which there was a conflict of evidence but is intended to deal with all those issues, whether disputed or not, which are relevant to the question of where liability for the accident lies.

3.At about 11.30 a.m. on 4 November 2006 the plaintiff and his supervisor, Mr Cheung Hon Heung (who gave evidence for the defence) were in a go-down at the defendant’s premises.  Mr Cheung was sitting at a desk.  He was reading a newspaper and did not witness the accident which happened behind him. 

4.Stored behind Mr Cheung were piles of flat packed cardboard boxes.  They were bundled together in bundles of 5 to 10 per bundle.  Each bundle was tied together by a strip of nylon tape wrapped around each set.  There were different sizes of flat packed boxes.  The bigger ones were stored vertically on the ground and were 4 ft to 5 ft high.  On top of those which were stored vertically were placed more bundles of 5 to 10 each which lay horizontally taking the total height of the pile (both those stored vertically on the ground and those stored horizontally on top) to about 6 ft.  There were 3 horizontal bundles of about 10 per bundle.  (There were some conflicts of evidence concerning the size of each bundle and the height of the pile but little turned on such conflicts.)

5.Occasionally people came in to the go-down to purchase cardboard boxes.  On this particular occasion the plaintiff was instructed to retrieve from the pile a single cardboard box from the lower vertically stored bundles arising out of such a purchase.  The defence case was that no-one had come in to buy a box but was not able to otherwise explain why the plaintiff had set about extracting one.  I accepted the plaintiff’s account on this issue.

6.The plaintiff was given a cutter to cut the nylon strip and thereby extract a single flattened cardboard box.

7.The vertical bundles were so stored that the nylon strip was not visible.  The 3 horizontal bundles had to be raised so as to access the nylon strip around the middle of the vertical bundles.

8.With his left hand the plaintiff levered up the 3 horizontal bundles and then with the cutter in his right hand he put his right hand and arm underneath the horizontal boxes to get at the nylon strip.

9.It was an awkward thing to do.  The next event happened suddenly.  As a result the plaintiff’s evidence about it lacked clarity.  He cut the strip and because it was binding the boxes tightly it sprung upwards.  The plaintiff, in a continuous movement, attempted to pull the cut strip towards him with his right hand, which was still holding the cutter with the blade exposed, in order to remove the strip prior to extracting a box.  In so doing the blade of the cutter collided with his left forearm which was still holding up the 3 horizontal bundles and made a serious cut in his arm.  He yelled out.  Mr Cheung turned around, saw what had happened and helped escort the plaintiff to hospital where his wound was attended to.

10.The plaintiff said he had never been asked to perform this particular task before.  Mr Cheung said that the plaintiff had done it frequently and regularly during his employment.  My finding is that he had occasionally done similar tasks before using a cutter but not as often as suggested by Mr Cheung.  The plaintiff’s normal work involved loading and unloading trucks.  He was employed as a delivery worker.

Liability

11.In my judgment requiring the plaintiff to extract a single cardboard box from the lower vertical bundles with the use of a sharp cutter knife with an extendible blade to cut tightly bound nylon tape which was awkward to access constitutes an unsafe system of work.  What constitutes an employer’s duty has been written many times in many ways.  The following extract from Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968] 1 WLR at p. 1783 can be usefully applied to the present case :

“… the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know; … he must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.  If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respect, he is negligent.”

12.Bearing in mind that I am satisfied on the evidence that the task being performed was (i) at the employer’s bidding (ii) with the cutter as supplied by the defendant to do the job, (iii) one that the plaintiff was not particularly familiar with and (iv) that the access to the nylon strip involved an awkward manoeuvre, it seems to me that the predominant cause of the accident was that the employer had “fallen below the standard to be properly expected of a reasonable and prudent employer.” 

13.Thus, having exposed the plaintiff to a risk of injury the defendant is primarily liable.  However the matter does not end there because it is necessary to examine what the plaintiff actually did when carrying out the task.

Contributory negligence

14.Simply because the system of work is unsafe does not preclude the possibility that the plaintiff added to the risk of injury by his own conduct. 

15.In this case having been instructed to carry out a task which was unsafe the plaintiff, in my judgment, contributed to the likelihood of being injured by the way in which he chose to carry out the task.

16.He could have asked for scissors instead of the cutter.  He was aware that scissors were available.  He could have pulled out a single box after cutting the tape.  There was no need to start pulling the tape out whilst still holding the open cutter in his right hand having done nothing to either render the blade unexposed or dispose of the cutter altogether.

17.Converting this conduct into a percentage for the purposes of contributory negligence is often a difficult and arbitrary task.  I think a reduction of 25% is proper in this case.

Injuries

18.I have had the benefit of considering a helpful and comprehensive joint medical report from Dr Peter Ko Put Shiu and Dr Bong Shu Chun, dated 1 June 2009.

19.The following extracts have particular relevance :

“Dr Bong and Dr Ko agree that Mr Bitto sustained a left forearm laceration wound resulting in 70% cut of ulnar artery and complete cut of FCU tendon and 90% cut of FDP tendon to little finger.”  (“flexor carpi ulnaris” and “flexor digitorum profundus”)

20.The plaintiff attended 3 sessions of physiotherapy and 15 sessions of occupational therapy up to January 2007.

21.He cannot now fully extend 2 fingers on his left hand.  He cannot make a full fist and has some impaired sensation.  These complaints all flow from the severing of the ulnar nerve.

22.The doctors further stated that :

“Physical examination findings in this joint assessment shows that the range of motion of the wrist is satisfactory with minimal decrease on the left side.  Motor power as tested with Jamar and pinch test shows that the left side is mildly impaired with quite satisfactory gross motor hand grip as well as pinch grip on the left side.  There is obvious claw hand deformity in the left hand which is a very common complication after ulnar nerve cut injury.

… For his left hand, he has claw hand deformity and also numbness and weakness as a result of the ulnar nerve injury with complete recovery after surgical repair.  Despite the apparent deformity of claw hand, the gross motor function in his left hand is grossly preserved with reasonable strength in his grip as demonstrated in the physical examination findings.

Dr Ko opines that for gross manual work of lifting of weight and with the fact that he has a right-handed dominant person, it should be only mildly affected in performance of the heavy manual work that he used to do as a delivery worker in a cargo delivery company.  The left hand residual dysfunction and deformity caused by the incomplete ulnar nerve recovery will obviously affected the fine motor function of his left hand as well as the dexterity of the fingers.  It would have affected Mr Bitto to a great extent if he would have to use his hand for fine motor work procedure or with those requiring high dexterity of the fingers of the left hand like typing using computer keyboard, playing musical instruments, etc…  However, working as a heavy manual worker requiring gross motor power without much requirement on fine motor skill and hand dexterity, Mr Bitto should only be mildly affected in his work efficiency and effectiveness.

Dr Bong opines the work productivity of Mr Bitto would be much affected especially in work that require the use and exertion of both hands as in climbing up and down the back of truck in loading and unloading goods and in stacking up carton boxes after delivery to destination and in climbing ladder.  Also in work that requires a strong left hand grip in support of work with the right hand.”

23.Overall, having read the reports and seen the plaintiff I have concluded that the deficit that he has suffered has made it difficult for him to take up his pre-accident job again and perform such tasks as were required to a consistently adequate level of competence.

24.Thus, the question now to be addressed is what is he capable of doing and earning?

Employment history

25.As already noted the plaintiff had worked for the defendant for 9 years at the time of the accident.

26.Sick leave was granted for approximately 4 months up to 22 February 2007.

27.On 22 March 2007 he was re-employed by the defendant on the same salary but doing “light duties”.  This employment was maintained until 1 March 2008 when it was terminated.  There is a dispute between the parties as to the reason for the termination.

28.The defendant’s letter of termination states that it was because of the plaintiff’s poor performance at work.  He had received a warning letter previously.  The complaints were that he was often absent, often late and was lazy and slow in carrying out his duties.

29.The plaintiff’s account is that after about 6 months of “light duties” his employers expected him to resume his pre-accident duties which he found he could not do properly and this led to his dismissal.

30.I think it unlikely that the employer insisted on him doing jobs that he could not do.  The defendant had been a reasonable employer hitherto.  Moreover there had been 4 delivery workers prior to the accident.  The plaintiff was not replaced whilst he was on sick leave.  Also, no new delivery worker was engaged while the plaintiff was carrying out “light duties” and no replacement was engaged after he was terminated in March 2008.  No replacement has been engaged up to the date of trial.  In short, it seems there was no need for a 4^th delivery worker.  I do not think therefore he was pushed into heavy duties against his will.  There may have been differences of opinion as to what he should and should not have been asked to do which caused the plaintiff to become unco-operative which ultimately led to his termination.

31.From 1 March 2008 to 1 October 2009 he was unemployed.  Since 1 October he has been working for a friend as a cleaner earning $5,000 a month.  He has been paid in cash and he produced no evidence as to his current wages.

32.For the purpose of quantum my approach to his post-accident employment will be as follows.

33.My reading of the medical evidence plus my assessment of the plaintiff leads me to conclude that since about March 2007 he has been capable of working at a job only slightly less demanding, physically, than his pre-accident job.  I do not conclude that he is or will be capable of returning to his work of loading and unloading trucks for the foreseeable future.

34.A short video was shown at trial in which the plaintiff was seen in February 2009 walking around the streets of Hong Kong and using his left hand and arm for ordinary things.  None involved lifting and so little was gleaned from the video.

35.On the other hand I do not conclude either that the $5,000 he now earns is a proper reflection of his earning capacity.  Mr Neal Clough, counsel for the plaintiff, urges me to use $5,000 as his earning capacity because that is the only evidence there is to say what he can earn.  He has looked for work and this is the best he has been able to do.

36.I prefer the approach submitted by Mr Ashok Sakhrani, counsel for the defence.  In these circumstances, the best one can do is assess his physical capabilities and give due consideration to the government statistics concerning the average pay for various different type of jobs.

37.A reasonable expectation for a messenger would be about $8,000.  When he worked in 2007/8 it was in such a job.  He is clearly capable of doing such work.

38.Before the accident he was earning $10,000 a month for 13 months a year.  This translates into $10,833 a month.  For the purpose of the quantum arithmetic I will calculate on the basis that his earning capacity has, since about March 2007 been approximately $3,000 a month less than his pre-accident earnings.

quantum

(1)     PLSA

39.The plaintiff seeks $350,000.  The defence suggest a figure of $250,000.  Both counsel have produced comparables which have been of some assistance.  I have seen no cases which support an award in the region of $350,000.  In my judgment this injury and its consequences merit a range of compensation between $200,000–$250,000.  As the defence have suggested the higher end of that bracket I will adopt the figure of $250,000.

(2)     Pre-trial loss of earning and MPF

40.(a)      Sick leave.  I consider it reasonable to grant full pay from the date of the accident up to the time of his re-employment on 22 March 2007.  It is true that the sick leave expired on 23 February 2007 but I think an extra month is allowable whilst he was looking for work :

$10,833 x 4.5 months + 5% (MPF) = $51,186.

(b)     March 2007—March 2008.  He was gainfully employed earning about $10,000 a month.

(c)     Since March 2008.  He was unemployed for 19 months and has been earning $5,000 a month since October 2009.

In my judgment since March 2008 he has been capable of working in a job paying about $3,000 a month less than before.  I do not think the defendant’s liability to compensate the plaintiff should exceed this monthly figure (on full liability basis) post-March 2008.

His loss up to trial is therefore $3,000 x 24 + 5% = $75,600.

(3)     Future loss

41.I accept that the deficit is permanent.  The plaintiff seeks a multiplier of 15 years, the defence adopts 13 years.

42.He is now 33.  My future loss calculation is :

$3,000 x 12 x 14 + 5% = $529,200.

(4)     Loss of earning capacity

43.Mr Sakhrani submits that, in this particular case, if an award for future loss is made any award for loss of earning capacity is thereby precluded.

44.I do not agree.  I think there is a real rather than a fanciful risk that this plaintiff will, in the light of his present circumstances, be having to look for work in the future.

45.I award approximately 6 months notional salary under this heading, namely $50,000.

(5)     Special damages

46.$2,000 is agreed.

Summary

48.There will be judgment for the plaintiff in the sum of $507,063 with costs (nisi) to be taxed if not agreed.

Mr Neal Clough, instructed by Messrs Shea & Company, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Szwina Pang, Edward Li & Co., for the Defendant