Sherma Phadindra v. Tin Wo Engineering Co Ltd and Another

HCPI 32/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 32 OF 2011

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Before: Deputy High Court Judge Mayo in Court

Date of Hearing: 22 and 24-26 October 2012

Date of Judgment: 8 November 2012

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J U D G M E N T

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INTRODUCTION

1.The plaintiff was employed by the 1^st defendant as a bar bender.

2.The 2^nd defendant was the principal contractor at the building construction site at Yau Tong Kowloon in the proximity of the Eastern Harbour Tunnel.

3.The 1^st and or 2^nd defendants were the occupiers of the site within the meaning of the Occupiers Liability Ordinance, Cap 314.

4.On the 21 October 2009 the plaintiff received instructions to carry out a bar bending job.  The job was to be undertaken in conjunction with the senior Chinese master and another co‑worker.

5.They were instructed to cut and bend 12 meter long Y25 rebars which were stacked in a pile.

6.They were also instructed to lift 4 bars at a time so as to expedite the performance of the job.

7.Some of the bars overlapped each other thus making it more difficult for whoever was picking up the bars to do so.

8.The plaintiff was stationed in the middle with the other two workers on either side of him.

9.After about 8 or 9 cycles of lifting, cutting and bending the bars the plaintiff attempted to lift 4 bars.  They were heavier than would normally be the case as one or more of them were entangled by other bars.

10.While attempting to lift the bars, the plaintiff sprained his back and he felt pain in the lower part of his back.

11.He was unable to continue with his work.

12.The claim which is being made by the plaintiff against the defendants in these proceedings is in relation to the injuries he sustained in this accident.

13.It is made on the basis of the failure of the defendants to provide a safe system of work.  The site was a construction site within the meaning of the Construction Site (Safety) Regulations, Cap 591.

14.Also it is made pursuant to the common law duty of care imposed upon the defendants under the Occupiers Liability Ordinance to provide a safe working environment.  The plaintiff was a lawful visitor within the meaning of the Ordinance.

EVIDENCE OF THE PLAINTIFF

15.The plaintiff gave evidence.  He was born in Nepal and at the date of the accident was aged 34.

16.He was educated up to Secondary School standard.  He could speak English and some Cantonese but his native language was Nepalese.

17.He came to Hong Kong in 1997.  Since his arrival he worked on various construction sites and at the time of the accident he was a bar bender and fixer.  This was a skilled job requiring physical strength and technical knowledge.  He had obtained a safety certificate which enabled him to perform the duties of a bar bender and fixer.

18.The plaintiff gave evidence of what transpired on the day of the accident.

19.He attended at the site as usual.  He received instructions from the foreman to join a team consisting of a senior Chinese master and another co‑worker.

20.Their duties included lifting bars from a stack for bending and cutting.  It was very demanding work.  It required him to lift heavy weights which meant that considerable pressure was brought to bare upon his trunk and lower body.  It was necessary for him to bend his back and to squat. He was required to work from 8 am until 5:30 pm.

21.The 4 bars which had to be lifted together weighed 76 kilos.

22.He was in the middle between his co‑workers.  This meant that when bars were lifted he had to lift more weight than the other workers.  Also as the bars were removed it was necessary for him to bend down further to pick the bars up.

23.After 8 or 9 cycles of doing this he attempted to lift up some more bars but he encountered difficulty in this due to the fact that one or more of the bars were entangled with other bars.

24.On lifting the bars he suddenly felt great pain in the lower part of his back.  He then went and sat down.

25.He realised that he had sustained a serious injury.  He caused a message to be sent to Mr Tank who was his superior who instructed another worker to take him to the United Christian Hospital for treatment.  They proceeded there in a taxi.

26.At the hospital he was examined by a doctor and an X‑ray scan was undertaken.

27.After this the doctor informed him that his lower back had been sprained in the accident.  He was given an injection to relieve his pain, analgesic tablets and a 5‑day sick leave certificate.  He was then sent home.

28.Two days later as he was still in considerable pain he arranged for an ambulance to take him to the Accident & Emergency Department of the Pok Oi Hospital.

29.He was admitted to the Orthopaedic and Traumatology Ward for treatment.

30.He was discharged from the hospital after five days.

31.Thereafter he received specialist treatment as an outpatient at the Orthopaedic and Traumatology Department of the Pok Oi Hospital.  Thereafter he received physiotherapy and occupational therapy at Tuen Mun Hospital.

32.He was given sick leave from the 21 October 2009 to the 27 June 2010.

33.As to his present condition the plaintiff claims that he suffers persistent pain and stiffness after prolonged standing or sitting.  The pain is worse if he walks on a slope and bends forward.  His bodily movement is limited and he had a walking or standing tolerance of about 20 minutes.

34.He did not think that it would be possible for him to resume his duties as a bar bender and fixer.

35.The plaintiff was subjected to a lengthy and searching cross examination by Mr Daniel Chan.

36.One of the features of this cross examination was to show in Court a DVD which had been taken suruptitiously when he had attended a medical examination and assessment by doctors representing himself and the defendants on the 18 April 2011.

37.He was depicted in this DVD walking in a crowded street.  He had a walking stick but did not appear to me to be placing much weight upon it.

38.He appeared to me to the moving quite slowly but not with difficulty.

39.A further clip was taken later which showed him walking to his residence.  On this occasion he did not have a walking stick. Again he appeared to be walking without any apparent difficulty.

40.Concerning the efforts the plaintiff has made to seek employment subsequent to the expiry of his sick leave certificates his evidence was less than fully convincing.

41.He expressed the opinion that he would only be able to undertake light work such as being a watchman or perhaps serving in a shop.

42.He did in fact obtain employment as a watchman for a bar in Central District in November 2011 but he found the hours of standing around from 10:30 pm to 4:30 am unduly taxing and he had to give it up after just over a month.

43.Having regard to the medical evidence available I consider that the plaintiff was definitely over reacting to the situation.

44.Generally the plaintiff came across as a fairly simple man who attempted to answer questions put to him in a straight forward manner.

45.Having said this it was definitely my impression which to an extent is shared by Dr Lee in the joint medical report I will be referring to  later in this judgment that the plaintiff did tend to magnify the extent of the pain and difficulties he encountered consequential upon the accident.

46.I would not go so far as to conclude that he did this dishonestly.  I think that it is more likely that this tendency is attributable to his continuing mental condition.  I think that he honestly believes that his injuries were more serious than in fact they were.

47.Also I will later be dealing with the financial aspects of this accident in this judgment.  I believe that he was unduly optimistic regarding what his future prospects would have been but for the accident.  Again there was a tendency to exaggerate the position.

48.The plaintiff gave evidence that his average earning in the 3 ½ months proceeding the accident was $13,579.21 per month.  In support of this evidence he produced his Bank of East Asia passbook.  In cross examination he accepted that a number of the entries recording credit items did not relate to his remuneration as a bar bender. When these items were excised it was apparent that his average income over the said period was $10,616.25.

49.The plaintiff did also refer to other income he had been in receipt of during this period in respect of work he had undertaken on other construction sites.  However as no evidence was produced in support of this I do not propose including these payments in the award I will be making.

50.I consider a calculation on the basis that the plaintiff was receiving somewhere in the region of $10,000 per month immediately before the accident is supported by other evidence.

51.I refer to the statistics published by the Census & Statistics Department.  While it is true that these are not in any way mandatory amounts payable they do provide some illumination concerning the likely amount payable.

52.From January to October 2009 the average wage of a bar bender was from $1,090.40 to $1,116.20 per day and the wages for a general worker on a construction site were during this period $576.80 to $573.70.

53.While the plaintiff holds a safety certificate in which he is described as being a bar bender he nonetheless did not in fact obtain the formal qualification as a bar bender.  He said that production of the safety certificate was normally sufficient to enable him to get employment as a bar bender but this would not necessarily mean that he would be remunerated at this level.

54.Indeed it was his evidence in cross examination that during the relevant period the daily amounts he received were much closer to those payable to a general worker than to a qualified bar bender.

55.He also gave evidence that he would normally work for about 20 days per month.

56.In support of the claim he was making for loss of earnings he gave evidence that were he to return to work his salary now would be in the range of $780 to $930 per day.  I will be dealing with the issue of loss of future earnings later in this judgment.

57.Originally the plaintiff also included a claim for loss of promotion prospects.  This claim was abandoned during the trial.

58.The plaintiff called one witness.  He is Mr Gurung Ram.

59.Mr Ram gave evidence that he was a colleague of the plaintiff and undertook work of a similar nature to the plaintiff’s.

60.Like the plaintiff he only had a safety certificate but did not have the formal qualifications of a bar bender.

61.At the time of the accident he said he was earning approximately $600 per day.  He said that he was now earning $1,150 per day.  These payments were supported by entries in his bank passbook.

62.I am satisfied that he is presently earning this amount per day and that his situation was similar to the plaintiff’s prior to the accident.

MEDICAL EVIDENCE

63.Throughout the plaintiff was treated by Government hospital doctors and by a court order dated the 28 June 2011 it was ordered that the reports concerning the plaintiff’s treatment and care should be treated as agreed evidence and that the makers of the reports should not be required to attend and give evidence.

64.The first doctor to examine and treat the plaintiff was Dr Chuen Fuk Hoi of the United Christian Hospital.  He examined the plaintiff shortly after the accident on the 21 October 2009.

65.The plaintiff complained of lower back pain. Dr Chuen found the plaintiff’s back and sensation were normal. Straight leg raising test was 70º bilateral and an X‑ray of the lumbar region showed normal alignment.

66.Dr Chuen’s diagnosis was that he had sprained his back.  He recommended bed rest and granted him sick leave until the 25 October 2009.

67.The next doctor to give evidence was Dr Ong Kim Liam of the Accident & Emergency Department of Pok Oi Hospital. Dr Ong saw the plaintiff on the 23 October 2009.  He was complaining of persistent low back pain.  It was reported that the pain had not been relieved by intramuscular tramodol injection.

68.Medical examination revealed that he had tenderness in the lumber region and had a left para spinal muscle spasm.  There was no stepping/deformity/lower limb neurological deficit.  There was no sensory loss/numbness.  His reflex was found to be symmetrical and normal.  He was admitted to the emergency Medical Ward.

69.In this ward he received treatment from the Department of Orthopaedics & Traumatology.  He was examined by Dr Kato Koji.  The doctor agreed with the diagnosis that he suffered from para spinal muscle spasm.  Neurosensory features were intact and reflexes normal.  X‑ray showed the decrease of lumbar lordosis.  He was treated with analgesics and physiotherapy.  His condition improved and he was discharged on the 28 October 2009 for outpatient follow up and physiotherapy.

70.The plaintiff attended 36 sessions of outpatient physiotherapy and 24 sessions of work capacity evaluation and work hardening from Tuen Mun Hospital.

71.The plaintiff was granted sick leave from 26 October 2009 to 27 June 2010.

72.What is important in relation to the plaintiff’s medical condition is to consider the joint expert medical reports prepared by the respective experts who were assisting the parties.  Dr Wong Chin Hong was assisting the plaintiff and Dr Lee Po Chin was assisting the defendants. Both doctors are specialists in Orthopaedics & Traumatology.

73.The two doctors summarise the reports of doctors who treated the plaintiff and the examination of him.

74.Their common conclusions were along these lines.

“Diagnosis and causation

1. Mr Sherma reported an injury at work on 21 October 2009.

2. He had lower back pain of sudden onset while pulling and lifting metal rebars.

3. Sundsequent X‑rays of lumbar spine showed no bone lesion. No MRI of lumbar spine was done.

4. Dr Lee and Dr Wong agree that the nature and extent of the injury to Mr Sherma was consistent with the history and the mechanism of the accident.

5. Mr Sherma had sustained soft tissue injuries to his lower back.

Treatment received and progress

1. Mr Sherma had been treated promptly at the AED of United Christian Hospital after the injury. He had attended AED and DOT of Pok Oi Hospital afterwards. He had also sought treatment at the Yuen Long Jockey Club Health Centre GOPC.

2. His injury was treated conservatively.

3. Mr Sherma had received physiotherapy at Pok Oi Hospital and occupational therapy at Tuen Mun Hospital to his back.

4. His low back pain had persisted despite repeated treatment.

Present conditions

1. Dr Lee and Dr Wong agree that Mr Sherma’s injury was appropriately treated by conservative means.

2. The injury had been adequately rehabilitated by the physiotherapists and occupational therapists.

3. His improvement had been slow and became static.

4. We believe that at the present stage, he has reached the state of MMI (maximal medical improvement).

5. We opine that further intervention might not reduce his pain or improve the function of his back significantly.  We do not recommend further medical or surgical intervention.  No assessment by other specialist is necessary.”

75.So far as their opinions on the implications of the plaintiff’s condition were concerned they did have some differences of opinion.

76.The doctors’ opinions on this were as follows:

“(1) Dr Wong

It is noted that Mr Sherma gave no previous history of back pain or back injury. His persistent back pain is attributable to the said injury.

The assessment was done 1.5 year after the injury. Mr Sherma still complains of persistent pain on his back after prolonged standing/sitting. The pain is worse when he walks on slope and bends forward. His symptoms and signs are unlikely to resolve completely. He would need to modify his work to avoid repeated lifting of objects weighing more than 5 kg and allow frequent rest at 30 minutes intervals should he desire to return to work at the construction site. He would be better suited for jobs of light duties such as shop assistant or security watchperson.

His total impairment due to the persistent low back pain, stiffness and associated left leg pain/numbness is assessed at 5 %. His loss of earning capacity is about 5 %.

(2) Dr Lee

Dr Lee opines that the findings of the joint examination do not support presence of significant pain. There was no muscle spasm. The positive flip tests, non‑dermatomal impaired sensation and positive simulation tests are non‑organic signs and their presence suggests symptom magnification. The residual pain, if any is present, should be mild.

Mr Sherma should be able to return to work in a construction site. There may be potential slight limitation in the maximum weight he could lift and he also needs to adopt biomechanically sound method of lifting. These will impair his work efficiency.

Based on the findings of absence of muscle spasm and positive simulation tests, Dr Lee estimates the impairment of the whole person is 2 %.  The loss of earning capacity is also 2 %.”

77.Sick leave

“Sick leave had been given from 21 October 2009 to 4 February 2010, 4 March 2010 to 29 May 2010, 1 June 2010 to 4 June 2010, 6 June 2010 to 17 June 2010 and 19 June 2010 to 22 June 2010.

Dr Wong considers the sick leave granted reasonable. Further sick leave is not required.

Dr Lee opines that sick leave for about six months should be adequate for recovery of soft tissue injury of the back. With multiple non‑organic signs at the joint examination, it is very likely that Mr Sherma had continued to complain of pain and obtained longer sick leave, even when his pain should have improved.”

78.One final matter in relation to medical evidence is that at the commencement of the trial counsel informed me that a MRI scan had recently been performed upon the plaintiff.

79.Arrangements were then made for the results of the scan be made available to Dr Wong and Dr Lee and they should be requested to express their opinion upon whether the result in this scan gives rise to their wishing in any way to modify the opinions they had expressed in their earlier reports.

80.The doctors did provide the court with further opinions.  Neither doctor wished to vary their reports in any significant way. This was partially due to the fact that three years had elapsed since the occurrence of the accident.

81.It would be noted that the main difference of the opinion between the doctors is whether it is feasible for the plaintiff to resume his occupation as a bar bender.

82.The plaintiff gave evidence that the work requires a considerably expenditure of physical effort.  It is necessary to decide which of the opinions is to be preferred.

83.After giving the matter some thought I have come to the conclusion that the opinion of Dr Lee is to be preferred.

84.My reason for coming to this conclusion is that it is apparent from reading Dr Wong’s opinion that he places almost complete reliance upon what the plaintiff says rather than what emerges from the physical examination of the plaintiff and the results of the joint determinations which were made by the doctors dependent on the objective findings which were made.

85.While I have no doubt that Dr Lee did fully consider all of the material which was before the doctors it would appear that in the final analysis he attached more weight to the physical findings than he did to what the plaintiff said and complained of.

86.What needs to be borne in mind is that in the main body of the report both doctors agreed in their conclusion what the plaintiff suffered from was “soft tissue injuries to his lower back”.

87.The difference between the doctors may not be so great as in Dr Wong’s view the plaintiff loss of his earning capacity is 5 % and Dr Lee’s view it is 2 %.  In both cases the doctors appear to take the view that the injury suffered by the plaintiff is not a severe one.

88.I have accordingly come to a conclusion that I should proceed upon the basis that the plaintiff could continue to work as a bar bender albeit that the performance of his duties may be impaired.

89.The defendants did not call any witnesses.

LIABILITY

90.During the course of the trial Mr Chan informed me that the defendants had instructed him that it was no longer their wish to contend that they had not been made negligent.  What they did wish to do was to contend that the plaintiff was contributorily liable for the accident.

91.It is my view that the defendants were wise to accept they were guilty of negligence.

92.I have no doubt that the system of work and the degree of supervision left much to be desired.  It is to be hoped that effective measures will be taken to ensure that bar benders will not be subjected to the hazard of having to lift bars anything like as heavy as those being lifted by the plaintiff.  It may even be necessary for a crane to be used for this purpose.  Alternatively more men will have to be deployed or it will take longer for the work to be performed.

CONTRIBUTORY NEGLIGENCE

93.The compliant made by the defendants is the plaintiff claimed to be an experienced worker.  As such it should have been manifest to him that he should not attempt to lift the 4 heavy bars.  He could have requested assistance from his fellow workers or failing this have applied to the foreman for appropriate measures to be taken.

94.Mr Chan submitted that the plaintiff should be held to be at least 20 % responsible for what occurred.

95.I do not think this is right.  There is a prime responsibility imposed upon an employer to provide a safe system of work and a safe environment.

96.Authority for this proposition can be found in the speech of Lord Oaksey at 139 of General Cleaning Contractors Limited v Christmas [1953] AC 180.

“In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.

The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain.  If the possibility is faced the risk is obvious.  If both sashes are closed there is no longer the handhold by which the workman steadies himself.  If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe.  But the problem is one for the employer to solve and should not, in my opinion, be left to the workman.  It can be solved by general orders and the provision of appropriate appliances.  The risk is undeniable and was not denied by the appellants’ director, Mr Mahoney.  The risk could be eliminated or lessened by orders that one sash must always be kept open where the handhold system is adopted and suitable wedges could be provided.  The appellants, knowing the risk, did nothing and have appealed to your Lordships’ House with the avowed object of having this system declared to be reasonably safe.  In my opinion, the system as carried on by the appellants is not reasonably safe and the appellants did not take reasonable care to ensure that it was.”

97.I accordingly conclude that the plaintiff should not be held to have been guilty of contributory negligence.

QUANTUM

Pain suffering and loss of amenities

98.Ms Chih who represented the plaintiff referred me to a number of cases involving back injuries.

99.She placed particular reliance upon Yau Shing Tsan v Faito Elderly Affairs Ltd unreported being HCPI 168/2004 where Suffiad J had awarded $450,000 under this head in relation to the injuries the plaintiff sustained.  I have no doubt that the injuries sustained by the plaintiff in that case were far more severe than the plaintiff suffered in this case.

100.I consider that a more balanced approach can be found by referring to the judgment of Saw J in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd unreported being HCPI 473/2006 and the related Court of Appeal decision reported at (2008) 5 HKLRD 210.

101.This case involved a soft tissue injury not entirely dissimilar to the injury sustained by the plaintiff.

102.Saw J awarded $75,000 under this head and Court of Appeal did not interfere with the award.

103.I have come to the conclusion that an award of $100,000 is appropriate in this case and I order this amount should be payable.

Pre trial loss of earnings & MPF

104.To a considerable extent I have already dealt with this in the main body of this judgment.  For the reasons I gave the award under this head should be based on the plaintiff’s salary being $10,616.25 per month.  Accepting as I do Dr Lee’s evidence this amount should only be payable for 8 months being the amount of the sick leave granted to the plaintiff.  The total is therefore $10,616.25 x 8 x 1.05 = $89,176.50.

Future loss of earnings

105.Adopting the evidence of Dr Lee I accept the plaintiff is able to resume his former employment.

106.However, I am satisfied that the plaintiff’s earning capacity has been impaired and that an award will be made under a separate head.

Loss of earning capacity

107.The principles governing making award under this head were helpfully indicated by Browne L J at 142 of Moeliker v Reyrolle &Co [1977] 1 WLR 132.

I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages.  1. Is there a “substantial” or “real” risk that a plaintiff will lose his present job at some time before the estimated end of his working life?  2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.

108.On the basis of the medical evidence in this case, this is definitely a case where these principles are applicable.

109.As I have indicated I accept Dr Lee’s evidence the plaintiff would be able to resume his employment.  However as a consequence of his having to be careful about lifting heavy weights and the need for him to take periodical rests there is undoubtedly some risk that he might lose his job and also that he might experience some difficulty in obtaining further employment.  This being a case in weighing all the relevant factors it is necessary to make a substantial award.

110.Adopting the evidence of Mr Ram I accept the plaintiff’s salary would now be about $1,150 per day which on a 20‑day month would amount to $23,000 per month.  I consider that an appropriate period for this to be adopted is one year thus making a total of $276,000.

Medical and other expenses

111.In the revised statement of damages the plaintiff is claiming a total of $8,134 as medical expenses, nourishing & tonic food and travelling expenses.  Notwithstanding that not all of these expenses have been vouched for it is definitely my impression that the claim is a moderate claim and should be allowed in full.

Interest

112.Interest on the award for PSLA is ordered to be at 2 % per annum and would be payable from the date of the service of the writ until the date of this judgment.

113.Interest on pre‑trial losses will be at half the judgment rate and will be payable from the date of the accident to the date of this judgment.

114.I leave the parties to calculate the appropriate amount and in the unlikely event of their being able to agree the amount there will be liberty to apply.

115.The sum of $240,104.34 which has already been paid to the plaintiff pursuant to the award made under the Employees Compensation Ordinance will be deducted from the award.

116.Summary of quantum

(a)	PSLA	$100,000.00
(b)	Pre‑trial loss of earnings & MPF	$89,176.50
(c)	Future loss of earnings	NIL
(d)	Loss of chance of promotion	NIL
(e)	Loss of earning capacity	$276,000.00
(f)	Other special damages	$8,134.00
(g)	LESS : E C Award	$240,104.34

117.Judgment is entered for the plaintiff and in the sum of $233,206.16 with interest to be calculated.

118.I make an order Nisi that the plaintiff will have his costs which will be taxed on the District Court scale in the absence of their being agreement.  Costs will be taxed in accordance with the Legal Aid Regulations.

Ms Vivian Chih, instructed by M C A Lai & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Daniel K K Chan, instructed by Winnie Mak, Chan & Yeung, for the 1^st and 2^nd defendants

Please refer to CACV272/2012 for the relevant appeal(s) to the Court of Appeal.