Tamang Udas v. Global Sunny Engineering Ltd and Another
Read the full judgment text of HCPI 732/2011 on BabelCite. This High Court CFI judgment was delivered on 7 January 2013.
1. This is a claim for damages for injuries suffered by the plaintiff while he was working at a construction site situate at 500 Hennessy Road, Causeway Bay, Hong Kong (“the Site”). At the time of the accident, the plaintiff was in the employ of the 1st defendant as a general labourer at the Site, whereas the 2nd defendant was the principal contractor.
Cited by 16 cases · Cites 19 cases
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HCPI 732 of 2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATION REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 732 OF 2011 -------------------- BETWEEN
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----------------------- J U D G M E N T ----------------------- Introduction 1.This is a claim for damages for injuries suffered by the plaintiff while he was working at a construction site situate at 500 Hennessy Road, Causeway Bay, Hong Kong (“the Site”). At the time of the accident, the plaintiff was in the employ of the 1st defendant as a general labourer at the Site, whereas the 2nd defendant was the principal contractor. 2.The parties contest both liability and quantum of damages. Issue - liability 3.It is common ground that the Site was a construction site, that the plaintiff was working on the Site on 4 November 2010 as a general labourer, that it was within the duty of the plaintiff as a general labourer to carry or transport metal scaffolds on the Site, and that each metal scaffold weighed about 15 to 17 kilogrammes. Apart from the above, everything else was contested. 4.According to the plaintiff, the accident took place on 4th November 2010 at about 4:25 pm. He was instructed by a supervisor whom he called “boss” to move two pieces of metal scaffolds in one go from one place to another on the Site. Suddenly, while he was moving the metal scaffolds, he felt serious back pain. He was later diagnosed to have suffered low back injury. 5.After the accident, the plaintiff took a rest and intended to resume work when his condition improved. However, his condition became worse after some rest. He went home at 5:30 pm. He rested at home for another day and on 6 November 2010, as the pain persisted or worsened, he called an ambulance and began to be hospitalised. 6.The plaintiff’s claim against the defendants is for their negligence and/or breach of employer’s duty and/or breach of statutory duty under the Occupational Safety and Health Ordinance, Cap 509, the Regulations thereunder (Cap 509A) and the Occupiers’ Liability Ordinance, Cap 314. 7.The defendants put the plaintiff to strict proof of the occurrence of the accident and deny that the accident was caused by the defendants’ negligence and/or breach of statutory duty. The plaintiff did not report the accident to them at the Site or otherwise, on 4 November 2010 or at any time thereafter. The defendants were informed by the Labour Department of the accident only in early December 2010. The defendants deny that the accident as described by the plaintiff ever happened while the plaintiff was at work or on the Site. If the accident did happen on the Site while the plaintiff was at work, they allege that it was caused wholly or contributed to by his own negligence and/or knowingly taking or exposing himself to risk. Their case is that the plaintiff should have refrained from lifting two metal scaffolds in one go if he found it to be too heavy. No one asked him to lift or move two metal scaffolds at the same time and he should have realised that it was against common sense to do so. 8.The plaintiff’s reply is that the defendants failed to give him sufficient training or instruction not to carry two metal scaffolds at the same time, and no one on the Site advised or told him not to do so. There was a lack of sufficient supervision on the part of the defendants. 9.The plaintiff relies on a number of authorities in connection with the duties owed to him by the defendants. Wilsons & Clyde Coal Company v English [1938] AC57 is the frequently cited authority that the employer owes to the employee the duty to provide a safe system of work, effective supervision and a safe place of work. Cheung J (as he then was) in Lai Chi Pon v. Toto Steel & Iron Works Ltd. & Others, HCPI 1149 of 1995 (12 March 1997, unreported) and Deputy High Court Judge Muttrie in Wong Woon Hei v. Dickson Construction Co, Ltd& Anor, HCPI 521 of 2000(3 July2001, unreported) both referred to it. 10.The plaintiff also relies on section 6 of the Occupational Safety and Health Ordinance, Cap 509, the relevant parts of which provide:
11.Regulation 23 of the Occupational Safety and Health Regulations, Cap 509A provides that the person responsible for the workplace must ensure that a preliminary assessment is made of the risks to the safety and health of employees employed at the workplace who undertake manual handling operations. 12.The relevant parts of Regulation 27 of the Regulations read:
13.Regulation 31 of the Regulations provides that an employer must provide his employees with such training as will be necessary for avoiding or minimizing the risks to the safety and health of those employees when they are undertaking manual handling operations which may create safety or health risks. The safety and health training must be provided when the employees are first employed and when they are being allocated new work tasks, or where the use of a new kind of plant has been introduced, or where new technology, a new system of work or new work practices at the workplace have been introduced, or where a change in existing technology, the existing system of work or existing work practices at the workplace has been changed. The employer must also ensure that the training which he is required to provide is repeated whenever necessary having regard to the purposes of the Ordinance. 14.The said section 6 applies to the 1st defendant who employed the plaintiff as a general labourer with a duty to lift, move, transport or carry metal scaffolds at the Site. The said Regulation 31 also applies to the 1st defendant as the plaintiff’s employer. These provisions impose a duty on the 1st defendant as the employer to provide training, supervision, and repeated training to employees such as the plaintiff as are necessary for avoiding or minimizing the risks to their safety. The said Regulation 23 applies to the person who was responsible for the Site as the workplace at which the plaintiff performed the manual handling operations, ie, the 2nd defendant. The said Regulation 27 is also expressly made applicable to the person responsible for the workplace at the Site, the 2nd defendant. These regulations impose a duty on the 2nd defendant as the main contractor responsible for the Site as a workplace to ensure appropriate steps are taken to reduce risks to the safety of the plaintiff as an employee undertaking manual handling operations on the Site, including provision of information of the weight of objects to be lifted, and to make arrangements for preventive and protective measures with effective monitoring of those measures. 15.The plaintiff also relies on the common duty of care stipulated in the Occupiers Liability Ordinance, Cap 314, section 3 of which requires a safe place to be provided to the plaintiff who was allowed and employed to be at the Site. 16.Subject to the questions whether the plaintiff did suffer injury in the course of his employment at the Site, the defendants very fairly do not dispute these common law and statutory duties. Issues on quantum 17.The parties join issue on most of the heads of the damages sought by the plaintiff. However, they were able to dispense with calling any medical expert on the plaintiff’s conditions after the accident and up till the time of this trial, by agreeing to produce a joint report by two medical doctors, one retained for the plaintiff and the other for the defendants. The witnesses 18.The plaintiff gave evidence on both liability and quantum. He called one witness, his co-worker on the site and friend, Mr Thapa Armit Prasad (“Thapa”), on liability. 19.The defendants called only one witness, a safety officer employed by the 1st defendant, Mr Cheng Tsz Chung (“Cheng”) although at the time of the accident, he was not the safety representative on the Site and in fact was not working on the Site at all. His evidence was that the defendants gave the general labourers who would be working on the site an initial training including a general introduction on working on the Site and what safety clothing, safety shoes and light tools or equipment were available to them; however, there was no specific training or instruction that such labourers should not carry two metal scaffolds at the same time. To him, that was just common sense: lifting and carrying one such scaffold which he described as weighing between 15 and 17 kilogrammes was alright for a labourer, but two would be too heavy and should not be done. He also told me that there was no report from anyone to the 1st defendant of an accident that took place on 4 November 2010, and the defendants were only informed of it by the Labour Department sometime in early December 2010. In cross-examination, he agreed that the Information Amendment Sheet dated 17 February 2011 provided by the 2nd defendant to the Labour Department stated that the monthly earnings of the plaintiff preceding the accident totalled $16,731 and that the average monthly earnings for the 12 months preceding the accident came to $14,675.75. These figures differ from what Cheng stated in his witness statement as the income of the plaintiff for the three periods of three months from 16 July to 15 October 2010 plus the second half month of October 2010, which (as corrected) was respectively $7,865, $12,995, $15,015 and $8,151, totalling $44,026. These sums are worked out from the MPF contribution records of the plaintiff. They average to $12,579 per month. The plaintiff’s own evidence is that he was paid $750 a day and he worked for about 24 days a month. But if one uses the average sum of $12,579, the plaintiff would on the average only have worked about 17 days a month. 20.The plaintiff described that at about 4:30 pm on 4 November 2010, he lifted up two metal scaffolds at the same time and was carrying them from one place to another place on the Site. In the course of doing so, he suddenly felt a severe pain on his lower back and shouted out. He fell on the ground and his co-worker Thapa came to help him. He intended to resume working if the pain subsided. He took a rest but his condition was not improved. Therefore, he did not resume work and left at the normal hour of 5:30 pm. The next morning, he got up for work, but was too painful to leave home. On 6 November 2010, the same condition remained and so he did not attend work, and in the evening the pain was getting worse and he called an ambulance which took him to hospital. 21.On the reason why he carried two metal scaffolds at the time of the accident, the plaintiff’s evidence in chief as well as his pleaded case are that he was instructed by his “boss” on the Site to do so, due to lack of time. 22.In cross-examination, the plaintiff admitted that on the day of the accident, his supervisor or boss was at the Site in the morning, giving instructions to various workers to do various work on various floors. He and his co-worker Thapa were told to move things, plywood, jack-hammer, metal scaffolds and sundry items. He did not see the supervisor in the afternoon. The supervisor did not instruct him as to how to do their work and he and his colleague did it in the manner best suitable according to their experience. He also said that he could not use the trolley to transport the metal scaffolds because there were empty spaces in between the two parallel railings of the scaffold which did not suit the trolley. 23.Thapa testified that on the day of the accident, he and the plaintiff were the only two persons working (as general labourers) under the supervisor at the Site. Thapa had been a general labourer for over a decade and he could understand Cantonese although he was not fluent in speaking the dialect. On 4 November 2010, the supervisor came in the morning and told him what he and the plaintiff had to do and did not appear in the afternoon. He and the plaintiff were carrying metal scaffolds at the time when the accident occurred. In cross-examination, Thapa said that although the supervisor did not tell him that they had to carry two scaffolds at one time, the order to do so “came from above”, from a foreman who was not the supervisor. Thapa altered this evidence later, by saying that the supervisor and the foreman were one and the same person. The order to carry two metal scaffolds together was given at 8 o’clock in the morning by the supervisor before he and the plaintiff started the day’s work. This differed from the impression that he gave earlier, which was that the foreman gave the instruction in the afternoon (because he did not see the supervisor in the afternoon). 24.The plaintiff was working behind him, carrying two metal scaffolds. He suddenly heard the plaintiff’s shout of pain. The plaintiff was sitting on the floor. He helped to carry the plaintiff to take a rest. His supervisor was not there and they did not have any phone number to call. He did not think that the injury or the pain was so serious as to make him report the matter. However, some days later when the plaintiff asked him to pass a sick leave certificate to the boss, he reported the accident to the supervisor and attempted to pass the certificate to him but he refused to take it. A couple of days later, however, the supervisor asked him for the certificate and he gave it to him. 25.The plaintiff is not an impressive witness. He seldom answered a question straight. In cross-examination, he was compelled to accept that the statements which he signed to confirm as true in his witness statement as well as in the Revised Statement of Damages which stated that he had not been able to work “until now” because of the severe injury he suffered up to the date when he signed those statements, namely, in March and April 2012, were incorrect. His work records disclosed by him to prove how much he was earning as a security guard in August 2012 show in the Details of Employment in Security Work that he was consecutively employed by two security companies between November 2011 and April 2012. This affects his pre-trial loss of earnings. His explanation was that he had gone back to Nepal in September 2011 and with the ethnic medicine he took there, he had become better. When he came back to Hong Kong, he was able to find a job as a security guard in November 2011. He worked for another employer in December 2011, but that job required working 12 hours a day and after a couple of months, in January 2012, his back did not allow him to work such long hours. He left and told his employer that if he became better, he would return and that in the meantime he would look for the same kind of job but only for 8 hours a day. Eventually in May 2012, he was able to get his present job as “an experienced guard”. When this job was offered, he was told by his friends that he needed to go back to his former employer to chop his work card. He brought the card to that employer who just happened to write that very date on the card (ie, 30 April 2012 and not the date he left the employ in January 2012) and chopped it with the company chop. He denied counsel’s suggestion put to him that either he was telling an untruth as to the date he left the former employer, or he deliberately got 30 April 2012 written there for the purpose of misleading the present employer to employ him an “experienced guard”. 26.Another portion of his witness statement was also challenged. It stated that he was suffering from pain when walking and he had constant back pain, which increased after walking for 30 minutes. He had left leg pain which increased after walking for over 20 to 25 minutes. He could only walk with a stick for longer time. Thus, he suffered from a loss of confidence in his ambulatory ability. The investigators employed by the defendants produced a video recording of the plaintiff’s movements on 14 and 18 May 2012, which was played in court during his cross-examination, to show that he was walking normally, freely and without any walking aid on those two days. However, the plaintiff maintained that when he walked not for a long time, meaning shorter than 40 to 45 minutes, he would not need any walking aid. He further embellished to say that his doctor advised him to try to refrain from using any walking aid so as to do more exercise that he needed, and that was why he was walking without any walking stick, as videoed. He said that even when he was walking slowly, he was suffering from pain, which only he and God knew. My impression from viewing his movements in the video recording is that he did not seem to walk with any pain. His gait was normal; his walking cannot be said to be slow or sluggish at all; and his getting onto and off a train showed nothing but a normal person. However, this does not change the fact that the experts (Dr Wong retained for him and Dr Lau retained for the defendants) in their joint report considered that he should not repeatedly lift weights heavier than 5 to 8 kg or he should be careful and adopt back-care posture during work to avoid further injury to his back. This is the residual damage to his health which makes him unsuitable to return to work as a general labourer at a construction site. I accept his evidence that as a general labourer at a construction site, he was required as part of his job to carry heavy objects. The job pays a wage of $750 per day which is not a small sum and it tallies with common sense that the worker is required to carry objects heavier and much heavier than 8 kg. This is also consistent with Cheng’s evidence that if one could not lift up a piece of metal scaffold, which according to his experience weighs about 15 to 17 kg, one would not be able to take up the job as a general labourer on a construction site. I accept that the plaintiff should at least need to be very careful with his back and should refrain from carrying heavy things. By reason of this, I also accept his evidence that in his present state, if he refuses to or cannot carry heavy weight, he would not be able to get or maintain his former job on a construction site. Thus, his earning capacity must be adversely affected. 27.As I do not accept his evidence that he was constantly suffering from pain on his lower back or left leg or that he walked with difficulty, looking at the way he gave evidence, I consider that he would not say anything that was detrimental to his case. Based on this view, it can be argued that he would similarly not do anything against his own interest physically: had he not been required or instructed to do so, he would not have carried two pieces of metal scaffold at the same time; he would not have exerted himself too much had there not been any compulsion or requirement for him to do so. This argument is not unattractive. 28.However, in view of the unsatisfactory evidence given by the plaintiff and his colleague on whether and by whom they were instructed to carry two metal scaffolds at one time, I am not disposed to accept their version. My finding is that the plaintiff carried two metal scaffolds that caused the injury to his lower back by his own choice. One thing that strikes me was his evidence that his colleague and he started to have a tea break at 3:15 pm and only started work again at 4:00 pm. He was adamant that the tea break lasted 30 to 45 minutes. They might be catching back time when he carried two scaffolds together. That was why he took the risk of carrying the heavy load of about 30 kg in one go. However, I do not wish to base my finding on the long tea break. 29.Apart from the above two aspects, namely, that the plaintiff’s transportation of two metal scaffolds was pursuant to instructions given by his boss, and that he was constantly suffering from pain even as late as in May 2012, I see no sufficient reason to reject his other evidence or that of Thapa that the plaintiff was injured when working as a general labourer at the Site. The defendants’ case is simply in the negative: that the plaintiff did not report the accident to them, and that there was no report of the accident by anyone until early December 2010 when they were notified by the Labour Department. The supervisor who gave orders for work to be done by the plaintiff and Thapa is not called to testify and indeed no one who could have known what had happened on the Site is called by the defendants. This, in the circumstances of this case, is far from sufficient to make one disbelieve the plaintiff’s claim on liability. Even the joint medical experts (referred to below) agreed that the nature and extent of the injury to the plaintiff was consistent with the history and mechanism of the accident. 30.Cheng, the only witness giving evidence for the defendants, described that a metal scaffold weighed 15 to 17 kg and two would mean 30 to 34 kg, although he had not actually measured the weight. He considered that the plaintiff’s conduct in carrying two metal scaffolds in one go was against common sense because two metal scaffolds together could be too heavy. If it was too heavy to carry two, a person should only carry one; this was common sense. I am not persuaded with this common sense view in the circumstances of this case. It will be noted that Cheng says “if”; the circumstances of the individual employee and all the surrounding circumstances will need to be considered. The plaintiff had not received more than primary education. He used to be a farmer before he came to Hong Kong in April 2010 and he had done nothing else but as a general labourer on construction sites. He was tall, big and strong and was quite young (31 years of age) when the accident occurred. Perhaps, he thought that there was nothing against him carrying two metal scaffolds at a time; he did not see the risk. He had carried two in that manner before, and it was only this time that he was injured. Maybe he and his colleague were going to catch up because they spent 45 minutes on their tea break, or maybe they wanted to finish work as soon as possible. One does not know. However, carrying two metal scaffolds in one go would be turning a blind eye to the risk involved. While I do not accept that he was required to carry two metal scaffolds on the instruction of his boss or supervisor, there was a question whether sufficient supervision was given to him by the defendants. There is also no evidence that the weight of a metal scaffold had been measured or information about its weight had been provided to the plaintiff. There is no evidence that attention of the workers such as the plaintiff had been drawn specifically that they should not carry more than one metal scaffold at a time. These failures constitute breaches of the common law and statutory duties referred to above. I consider that mainly there was a lack of supervision of the plaintiff’s work at the Site, allowing him to perform his work in the manner as he did.No advice was given to him to desist. 31.Mr Osmond Lam, for the defendants, refers me to two cases of similar work injuries in which the worker was held partially to blame. In Mohammad Waheed Khan v Rising Sun Transport Co Ltd, HCPI 241 of 2010 (10 December 2012, unreported), the plaintiff injured his back when he carried two bags of rice (weighing over 50 kg) in one go. Mr Recorder Ho SC held that the plaintiff should bear 30% of contributory negligence. At para 34, he said:
32.In So Chung Kwong v Ho Kuen & Anor [2000] 3 HKLRD 241 at 249F-I, Deputy Judge Gill held that it is a fundamental principle and a matter of common sense that an employee undertaking activity in the course of his employment owes a duty of care to himself and will be liable to a reduction of any award if found in breach. In particular, the judge considered that the following factors were influential in assessing contributory negligence in an employment context:
33.The judge held at p 250F-H that the plaintiff before him had experience in the field that would have allowed him to assess the weight (of the wooden boards measuring 6 ft x 4 ft x ¾ inch, the subject matter of the case) and recognize the risk of carrying them single-handedly in a confined space; and that the plaintiff must have been aware of that risk, took that risk and must share the blame for the consequences. The judge assessed contributory negligence at 30%. 34.Mr Lam contends that the plaintiff in the present case fulfilled the factors described in para 32(a) and (c) above in that he had considerable experience in moving heavy objects and high degree of familiarity in moving metal scaffolds. He had been employed by the 1st defendant since July 2010 as a general labourer on construction sites and his job duties required mainly manual handling including moving heavy objects such as plywood, jack-hammers, metal scaffoldings, etc. He had been doing this lifting and carrying work for about three and a half months. He also admitted that he had received safety training on how to lift and carry heavy objects before he started working for the 1st defendant. According to my finding as stated above, the plaintiff was not instructed to carry two metal scaffolds at the same time. Thus, it is argued that the situation can be likened to those in So Chung Kwong and Mohammad Waheed Khan, and the plaintiff should similarly be found 30% responsible for his injuries. 35.Each case has to be considered on its own facts. While I find that the plaintiff was not instructed by his “boss” or supervisor to carry two metal scaffolds at the same time, I also find that the defendants have failed to provide any sufficient training or supervision to advise the plaintiff or order him to desist. In all the circumstances of this case, I consider that the plaintiff was guilty of 20% contributory negligence. I only assign 20% to be his blame because of the matters I have already mentioned in paragraph 30 above. Had there been a foreman or safety officer or representative of either defendant on site, an advice would have been given to him against carrying two metal scaffolds at the same time, but there was no such advice or training against his doing so. For this, I find the defendants 80% liable. 36.To sum up on liability, I find that the plaintiff was injured while at work as a general labourer on 4 November 2010 on the Site. He was then in the employ of the 1st defendant and the 2nd defendant was responsible for the workplace at the Site as the main contractor. The cause of the injury was he was carrying two metal scaffolds at one time. He was not instructed by his “boss” or either defendant to do so. He did it of his own accord. The defendants, however, failed to give him sufficient training or supervision to ensure that he would not expose himself to the risk as he did, and were therefore in breach of their duties to provide a safe system of work and effective supervision to him. I find that the plaintiff had contributed to his own injury for 20% and the defendants are liable for 80%. 37.At the hearing of the parties closing submissions on 2 January 2013, Mr Osmond Lam refers me to the judgment of the Court of Appeal in Fong Yuet Ha v Success Employment Services Limited, CACV 100 of 2012 (28 December 2012, unreported) for the proposition that if the task performed by the employee that results in an injury to himself is a run-of-the-mill task, then it could be entrusted to him and he needs not be supervised; in other words, the employer does not have a duty to provide a safe system of work or supervision to him relating to that task. It is to be noted, however, that the Court of Appeal was not laying down a legal principle, as it stressed in the judgment:
38.Whether the employer has the duty in each case is fact-sensitive. I do not think my view on liability and contributory negligence expressed above is affected by this new authority. Heads of damage and quantum 39.Owing to the injuries from the Accident, the plaintiff suffered from serious low back injuries and was admitted to the accident and Emergency Department of Pok Oi Hospital on 6 November 2010 where he was given medical examination and X-ray scan. The plaintiff was referred to the Orthopaedic & Traumatology Department of Tuen Mun Hospital for treatment on the same day. The medical examination revealed that the pain radiated to left buttock and left thigh, and there was numbness over left leg and foot. It was also found that there was local tenderness over lumbar spine and mild decrease of power over left lower limb. He was hospitalized for about 4 to 5 days and was discharged on about 10 November 2010. After that, he attended Accident and Emergency Department of Tuen Mun Hospital, Ortho Centre, the Madam Yung Fung Shee Health Centre, the Yuen Long Jockey Club Health Centre, the Department of Accident & Emergency of Pok Oi Hospital for further treatments. He was also referred to physiotherapists and occupational therapists for work assessment and hardening. He had continued physiotherapy at Pok Oi Hospital once every 10 days. 40.MRI of the plaintiff’s lumbar spine showed desiccated L4/5 and L5/S1 discs with large broad-based posterior disc extrusion L4/5 level and small central posterior disc bulge and posterior annulus tear at L5/S1 level. X‑ray of lumbosacral spine taken at the time of examination showed reduced lumbar lordosis, mild marginal osteophyte at upper end plate L5 vertebra. 41.Medical Assessment Board (MAB) has been done on 18 July 2011 and assessment on loss of earning capacity permanently caused by the back injury resulting in L4/5 prolapsed intervertebral disc was 6%. 42.The plaintiff was jointly examined by Dr Wong Chin Hong (“Dr Wong”) instructed on his behalf and Dr Lau Man Tsang, Richard (“Dr Lau”) instructed by the defendants on 9 September 2011 at Dr Wong’s clinic and he was accompanied by an interpreter. The two orthopaedic experts agreed in the Joint Medical Report dated 9 December 2011 that the nature and extent of the injury to the plaintiff was consistent with the history and the mechanism of the accident. The plaintiff suffered mainly soft tissue injury to his lower back. They agreed that his injury was appropriately treated by conservative means and had been adequately rehabilitated by the physiotherapists and occupational therapists. They believed that he had reached the state of Maximal Medical Improvement. They opined that further intervention might not reduce his pain or improve the function of his back significantly. They did not recommend further medical or surgical intervention and considered that no assessment by other specialist was necessary. 43.The physical examination at the joint medical examination showed that the plaintiff could not squat because of his low back pain. There was also tenderness over lumbosacral spine midline, decreased sensation at dorsum of left foot and diminished sensation over Left L3 to L5 dermatome. He also walked with walking stick when he walked for longer time. 44.The plaintiff was suggested by both physiotherapists and occupational therapists that his clinical condition was static and his working capacity was not matched to original job. Dr Wong opined that the discs desiccation was likely to be degenerative in nature. On the other hand, the disc extrusion and bulging with posterior annulus tear could have been precipitated and aggravated by the subject injury. As the plaintiff gave no history of previous back pain or back injury, his persistent low back pain could have been triggered and fully attributable to the subject injury. 45.Dr Wong stated that the plaintiff’s symptoms and signs were unlikely to resolve completely. In the view of the MRI findings, he would have to modify his work should he desire to return to work at the construction site. He would need to avoid exertion and have repeated frequent rest (eg at 30 minutes intervals). He would be better suited for jobs of light duties such as process worker in factory, shop assistant or security watchperson. 46.Dr Wong assessed the plaintiff’s total impairment due to the back injury with L4/5 prolapsed disc causing persistent pain at 7 % and his loss of earning capacity due to the injury was about 7 %. 47.He was granted medical sick leaves with certificates from 6 November 2010 to 20 April 2011 and from 27 April 2011 to 18 July 2011. Plaintiff’s physical problems 48.It is alleged that the plaintiff’s present problems consist of those set out below. I include my findings in parentheses, which are based on his testimony, the other evidence adduced in court and the manner and demeanour when he testified before me:
The differences between the joint experts 49.There are three apparent major differences between the opinion of Dr Wong and Dr Lau, namely,
50.Two of the three differences can be resolved quite quickly. Since there is evidence that the plaintiff sought treatment from a private O&T specialist Dr Chan Lai Lok, was seen by Dr Chan on 8 occasions and granted sick leave from 27 April 2011 to 18 July 2011 (for about 2.7 months), I consider that it would be unreasonable to disallow the plaintiff sick leave till 18 July 2011. 51.On the question whether the plaintiff could or could not return to his former job as a general labourer on construction sites, there is very little real difference between the doctors. Both of them opined that he should avoid or be very careful in carrying heavy weights. I have already concluded that taking into account what Cheng, the safety officer of the 1st defendant, testified in this regard, it would be unrealistic to expect that the plaintiff, who in the opinions of both doctors should not carry heavy weight, would be able to get a job in the same capacity as before on a construction site; and even if he is able to get such a job, there will be great difficulty for him to retain it. Degeneration of the spine 52.Regarding the greatest difference between the two doctors, whether the plaintiff’s injury was as a result of the degeneration of his spine or of the accident on 4 November 2010, Mr Osmond Lam submits that I should prefer Dr Lau’s opinion to that of Dr Wong. His contention is basically on two premises. First, Dr Wong’s opinion is not based on objective readings, findings or observations but rather based on what the plaintiff told him, which differs from Dr Lau’s view that is reliant upon those objective matters. Secondly, Dr Wong’s opinion had twice been rejected by the courts. 53.It is useful to set out Mr Osmond Lam’s summary of the two doctors’ views on the degeneration of the plaintiff’s spine:
54.Mr Osmond Lam refers me to Davies v Edinburgh Magistrates (1953) S.C. 34 where Lord President Cooper at 40 described the duty of expert witnesses to the court:
55.Mr Osmond Lam criticises that Dr Wong based his conclusion solely upon what the plaintiff said rather than what emerged from the physical examinations of the plaintiff. Simply because the plaintiff gave no history of previous back pain or back injury, Dr Wong concluded that his back pain could have been triggered and fully attributed to the subject injury. Merely because the plaintiff still complained of persistent pain on his back after one year from the injury, Dr Wong drew various conclusions that the plaintiff’s symptoms and signs were unlikely to resolve completely. Dr Wong tried to justify his opinion by adding the words “in view of the MRI findings”, but he did not explain how the MRI findings related to his conclusion that the plaintiff “would have to modify his work should he desire to return to work at the construction site”; he did not analyse the MRI findings; he did not even mention what the MRI findings were. Worst of all, Dr Wong did not even test whether the information provided by the plaintiff was accurate or exaggerating in nature before he based his conclusions solely on them. 56.Mr Osmond Lam compares the above with Dr Lau’s opinion. Dr Lau analysed and cross-referred the results of the different medical examinations. He considered the possibility of symptom magnification through investigating the discrepancy in the SLR test. His conclusions were substantially based on objective physical and medical findings. 57.Mr Osmond Lam draws my attention to recent authorities that show that expert medical evidence which places almost complete and sole reliance on what the plaintiff says, without examining other objective findings, would not be accepted by the Court. Coincidentally, the doctor giving the rejected expert evidence in these recent authorities was also Dr Wong. The authorities are Sherma Phadindra v Tin Wo Engineering Co Ltd & Anor, HCPI 32 of 2011 (8 November 2012, Deputy High Court Judge Mayo, unreported) and Gurung Bhakta Bahadur v Green Valley Landfill Ltd, HCPI 333 of 2009 (28 January 2011, Bharwaney J, unreported). He submits that the opinion of Dr Wong defeats the paramount duty of expert evidence and provides no assistance to the Court in the present case to assess the medical conditions of the plaintiff. Applying the above authorities and given that Dr Wong has been repeatedly rejected by the Court, the opinion of Dr Lau should prevail over the opinion of Dr Wong. 58.I must correct Mr Osmond Lam’s wrong criticism of Dr Wong. First, Dr Wong’s evidence was not “rejected” as such in those two authorities. The judges hearing those cases only preferred the evidence of another medical expert, which is very different from rejecting Dr Wong’s evidence. Secondly, while medical experts should analyse the medical data and readings that are available to them, they should also examine the patient’s medical history and whatever information that could be extracted from him. Save where there is ample reason, a medical expert would not normally disbelieve what the patient tells him. In this case, especially when both medical experts have been dispensed with attending court to give evidence, when no opportunity is given to them to answer any criticism, the court should be very slow to pass unanswered accusations on them. I do not see why it should be critical of Dr Wong when he accepted the lack of history of back injury or back pain from the plaintiff. Even Mr Osmond Lam did not suggest to the plaintiff in cross-examination that he had suffered from either of these complaints prior to the accident. 59.In reality, the experts do not differ widely on this topic either. What Dr Wong says is that the conditions of the plaintiff could have been precipitated and aggravated by the injury and his persistent low back pain could have triggered and be fully attributable to the injury. Dr Wong says that the disc desiccation is likely to be degenerative in nature. This is not substantially different from Dr Lau’s opinion that the desiccated discs are an indication of pre-existing degeneration of the discs. Dr Lau merely states further that the broad-based disc extrusion is also a description of disc degeneration; however, annular tear can occur in the process of degeneration as well as in acute trauma; the disc bulge and extrusion was more likely the result of degenerative process, rather than due to sprained injury, but initiation of symptoms by the injury could not be excluded. 60.Having considered the Joint Medical Report and all the circumstances of this case, I find that the plaintiff had before the accident not suffered from any back pain or back injury. A consistent indication can be derived from his evidence that he had been carrying two metal scaffolds at one time at least for half an hour before the accident. Had he had back pain or problem before or at the time, he would not have exerted himself or knowingly exposed himself to the risk. Yet his spine was degenerating as described by the medical doctors. There is no evidence when this degeneration would express itself in symptoms but for the accident. But of course, this pre-existing spinal degeneration conditions may affect his ability to do heavy work or carry on with his job as a general labourer on constructions sites with duties to lift and carry heavy loads, but such would probably not have occurred during the pre-trial stage but for the accident. 61.My attention has been drawn to Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958,CA, the leading authority on how pre-existing degenerative conditions would affect assessment of damages in personal injuries cases. At 965E-G, Mortimer VP stated:
62.The plaintiff in Chan Kam Hoi was a carpenter working for the defendant during the construction of the Conrad Hotel. He sustained injury to his back. He had a “quite serious” pre-existing degenerative condition of the spine which until the accident had been symptomless. The trial judge (Deputy High Court Judge Woolley, see [1997] HKLY 437) imposed a reduction of 45% of the damages which he would otherwise have awarded in the absence of the pre-existing condition for pain, suffering, loss of amenities (“PSLA”) and for past and future loss of earnings. The plaintiff was 45 years of age at the time of the accident in September 1988 and 53 years at the trial. The Court of Appeal held that the judge was entitled to make a reduction of 45%. However, it held that the judge was inconsistent to make a reduction of 75% for the future loss of earnings and he was wrong in adopting a multiplier of three and a half years. Mortimer VP at 966D-F stated:
63.The approach as enunciated by the Court of Appeal has been followed in subsequent cases. In Limbu Netra Kumar v Yau Lee Construction Co Ltd and Anor, HCPI 234 of 2002 (25 April 2007, Suffiad J, unreported), where the accident occurred in April 1999 when the plaintiff was 23 years of age and he was 31½ years old at the trial. Due to his pre-existing degenerative conditions, the PSLA was reduced by 30% and the multiplier for loss of future earnings was reduced from 14 or 15 years to 6. Suffiad J, however, did not discount the pre-trial loss of earnings at 30% or at all. 64.In Tse Tsz Keung Poco v Chan Yick Chun, HCPI 214 of 2009 (30 June 2010, Master K Lo, unreported), the plaintiff met with the accident in April 2006. He was 41 years of age at the assessment of damages. Due to his pre-existing degenerative conditions, the PSLA and pre-trial loss of earnings were reduced by 30% and the multiplier for the calculation of loss of future earnings was reduced from 12 to 6. 65.The third case that Mr Osmond Lam refers me to is Li Sau Keung v Maxcredit Engineering Ltd, CACV 16 of 2003 (25 November 2003, unreported). The plaintiff was 40 years old when he met with the accident in June 1998 and the trial took place when he was 44 in 2002. Due to the pre-existing degenerative conditions of the plaintiff, the multiplier for loss of future earnings was reduced from 12 to 6. There was, however, no discount of the pre-trial loss of earnings or the PSLA. 66.Mr P K Chan, for the plaintiff, does not dispute these authorities, but he draws my attention to the Joint Medical Report where even Dr Lau, the expert retained by the defendants, stated that “it is difficult to estimate when a degenerative spine will become symptomatic”. Mr Chan submits that the onus is on the defendants to establish that the symptoms of the degenerative conditions would occur during the working life of the plaintiff and there is insufficient medical evidence in this case to discharge that onus. As a result, it is submitted that there should not be any deduction or reduction of the multiplier as stated in the authorities. I do not agree. Just preceding this quoted sentence, Dr Lau stated: “Mr Tamang (the plaintiff) has a pre-existing condition of degeneration of the spine which is likely to progress with continued heavy manual labour”. 67.Having considered the above authorities and all the circumstances of this case, I hold that the plaintiff’s degenerative spinal condition should be reflected in the damages under the headings of PSLA, future loss of earnings and loss of earning capacity. For the PSLA and loss of earning capacity, I consider that a reduction of 30% being appropriate, and for future loss of earnings, I consider it appropriate to reduce the applicable multiplier of 14 years for a man of 31 years at the time of the accident to 7 years. However, I hold that there should be no reduction of the pre-trial loss of earnings by reason of the degeneration. The figures shown later will reflect this finding and ruling. Undisputed items 68.There is no dispute between the parties on the following items. The plaintiff does not claim any loss of chance of promotion, nor does he claim any loss of society. On the other hand, the defendants do not dispute that the special damages for medical expenses, nourishing food and transportation incurred by the plaintiff amounted to $23,775.00. Pain, suffering and loss of amenities (PSLA) 69.The plaintiff suffered from desiccated L4/5 and L5/S1 discs of lumbar spine with large broad‑based posterior disc extrusion at L4/5 level and small central posterior disc bulge and posterior annulus tear at L5/S1 level. His X‑ray of lumbosacral spine also showed reduced lumbar lordosis, mild marginal osteophyte at upper end plate L5 vertebra. He was granted sick leaves from 6 November 2010 to 20 April 2011 and from 27 April 2011 to 18 July 2011. A review of MAB assessed to have 6 % loss of earning capacity permanently caused by the injury. Dr Wong and Dr Lau assessed the plaintiff to suffer 7 % and 3 % permanent impairment respectively. Mr Chan suggests that an award of HK$300,000.00 is appropriate under this head. 70.The plaintiff alleges that he is still suffering from constant back pain which will increase after walking for 30 minutes and will increase in cold weather or on bending down, or after sitting for 30 minutes. He has not tried lifting any object weighing over 5 kg. He takes analgesics about once per week when it comes necessary. He also suffers from left leg pain which radiates from the lateral side on the left thigh to left calf. The pain feels like electric shock in nature, and occurs when he sits down and is increased after walking for over 20 to 25 minutes. He has to rest for 10 to 15 minutes to relieve the pain. As alluded to in paragraph 25 above, I consider that the plaintiff has exaggerated his pain, both on his back and his left leg, and also his difficulties in moving about. 71.Mr Chan suggests that an award of HK$300,000.00 is appropriate in this case. He submits that the plaintiff’s injury should be below but close to the lower end of the “serious injury” category as laid down in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. He relies on Lai Kam Wah v Wing & Kwong Co Ltd HCPI 1131 of 2002 (28 November 2003, Sakhrani J, unreported) where PSLA of $350,000 was awarded for back injury, small annular tear in L5/S1 disc, with extensive physiotherapy, depression, anxiety, insomnia with suicidal thoughts requiring psychological and psychiatric treatment, and the case of San To Po Yuk v Wing Kwong Painting Co Ltd [2004] 2 HKLRD 169 (Suffiad J) where PSLA of $350,000 was awarded for back injury caused by significant disc extension at L4/5 causing severe spinal canal narrowing, hypertrophic changes of apophyseal joints and ligamentum flava, mild postero‑central disc bulge at L5/S1. He further refers me to Cheung Oi Yan Ruby v Wong Hoi Sum, CACV 259 of 2011, CA (17 July 2012, unreported) where the back injury carried a 5% whole person impairment. The Court considered that an appropriate award would be $300,000. 72.Mr Osmond Lam suggests a sum of $100,000 as the damages for PSLA. He refers me to the above cited Sherma where the 34-year-old plaintiff, being a bar-bender working on a construction site, claimed damages for a low back sprain injury. Both medical experts agreed that the plaintiff suffered from soft tissue injuries to his lower back. At trial, a DVD showed the plaintiff walking in a crowded street. The judge observed that although the plaintiff had a walking stick, it did not appear that he was placing much weight on it, and he was moving quite slowly but not with difficulty. Although the plaintiff should be careful about lifting heavy weights, he would be able to resume his pre-accident employment as a bar-bender. The judge awarded $100,000 for PSLA. 73.In Tam Fu Yip Fip v Sincere Engineering Trading Co Ltd, HCPI 473 of 2006 (6 June 2007, Saw J, unreported), the plaintiff who had a pre-existing degenerative back condition, suffered a soft tissue back injury. The judge found that the plaintiff had exaggerated his condition and had fully recovered from the injury. The award for PSLA was $75,000. Although an appeal against the judgment was successful, the Court of Appeal did not interfere with this award, see [2008] 5 HKLRD 210. 74.Mr Osmond Lam refers to two other cases of back injuries for comparison, namely, Fazal Ahmed v MTR Corporation, DCPI 29 of 2011 (25 April 2012, District Judge Leung, unreported) and Tam Yuen Hoi v Chan Muk Sing & Ors, HCPI 983 of 2001 (1 August 2003, Deputy High Court Judge To, unreported), where the plaintiff in each case was awarded $50,000 for PSLA for lower back injuries from which they had recovered, with no lingering effect on their pre-accident employment. 75.While I accept that the plaintiff would not be able to return to his former job of being a general labourer on construction sites, I do not consider that the injury to his lower back was serious. I accept Mr Osmond Lam’s suggestion that $100,000 would be appropriate for PSLA. This sum is, as alluded above, to be reduced by 30% due to the plaintiff pre-existing degenerative condition of his spine, and to be further reduced by his 20% contributory negligence. Pre‑trial loss of earnings 76.At the time of the accident, the plaintiff was employed as a general labourer on a construction site and it is pleaded that he earned about HK$15,000.00 per month. Mr Chan relies on the figures shown in the “Information Amendment Sheet” submitted by the 2nd defendant to the Labour Department which stated that the monthly wages of the plaintiff in October 2010 were $16,731.00 and his average monthly earnings for the 12 months preceding the accident were $14,673.33. Mr Osmond Lam argues that these two figures were not supported by documents and could not be explained. However, as Mr Chan points out, the first figure is supported by the wage records of the plaintiff for MPF contributions which show the following figures since his employment on the Site:
77.If one adds $8,580 for the first half of October 2010 and $8,151 for the second half of the same month together, the sum is $16,731 which proves that he earned $16,731 for the month preceding the accident that took place on 4 November 2010. However, there is no evidence to show how $14,675.33 was obtained. The average of the wages earned for the three and a half months from July 2010 to 31 October 2010 is $12,578.86, as shown in the above table. However, according to the plaintiff’s testimony, he earned $750 a day. If he worked for 24 days a month, it would bring him $18,000. The sum of $16,731 means that he worked 22.3 days in October 2010. Obviously, even for that month that brought him the highest income, he worked less than 24 days, or he was not able to get that many days of work. All in all, I consider it fair to accept Mr Chan’s submission to use $15,000 as the basis for assessing damages in this case as the plaintiff’s monthly earning at the time of the accident. Sick leave 78.The plaintiff was granted sick leave from 6 November 2010 to 20 April 2011 and from 27 April 2011 to 18 July 2011. I consider that he is entitled to the sick leave as granted, starting on 5 November 2010 when he could not return to work because of the injury. Not only that, I think it proper to count the week between 20 and 27 April 2011 as belonging to the same category when he was seeking medical treatment and examination, and this period should, similar to sick leave, be allowed. The calculations are therefore $15,000 x 8 months 14 days (ie, 8 months from 5 November 2010 to 4 July 2011, and 14 days from 5 to 18 July 2011). That means, $15,000 x (8 + 14/31), giving a figure of $126,774, rounded off to the nearest dollar. As I said before this sum is not subject to any discount for the pre-existing degeneration of the spine. Pre-trial loss of earnings 79.But for the accident, the plaintiff would have continued working on the same basis as a general labourer. After the sick leave, he could and should have been gainfully employed. On the evidence, he has been employed as “an experienced guard” earning a monthly salary of $7,804 as from May 2012 and before that for periods of time between November 2011 and January 2012 he was employed as a security guard. His loss of earnings after the sick leave from 19 July 2011 up to the date of this judgment on 7 January 2013 is ($15,000 - $7,804) x 17 months 20 days (19 July 2011 to 7 January 2013), which means $7,196 x 17 20/31 months, equalling $126,975, rounded off to the nearest dollar. Again, this sum is not subject to any discount for the pre-existing degeneration of the spine. Future loss of earnings 80.As I said before, I would take 7 as the multiplier for this head of damage, which takes into account the pre-existing degeneration of his spine. The plaintiff’s future loss of earnings is therefore $7,196 x 12 months x 7, reaching a sum of $604,464. This sum is subject to the discount of 30%. MPF contributions 81.To each the above sums for the loss of earnings, a 5% should be added for the plaintiff’s contribution to the MPF fund. Loss of earning capacity 82.Mr Chan seeks a sum of $102,000 for the plaintiff’s loss of earning capacity. He submits that this sum represents about 13 months of the plaintiff’s current earnings as a security guard. It is submitted that due to the plaintiff’s residual back injury, it would take him a longer time to find a new job in the event that his employment is terminated by his present employer. He is therefore at a disadvantaged position in the labour market. I am, however, not persuaded that apart from the loss of future earnings for which I have made a substantial award to cover the fact that he would not be able to return to the construction industry as a general labourer that would require him to carry heavy loads, he should appropriately be given a separate award for being disadvantaged in the labour market as a security guard. The plaintiff’s evidence is that as security guard he can choose when to sit and when to stand and that suits his physical condition well, but he found it too hard if required to work for 12 hours a day as when he was under the employ of the company in which he worked between November 2011 and January 2012. To that extent, as compared with those who are able enough to work for 12 hours, the plaintiff is less competitive; but this head of damages must overlap to a certain extent with the his loss of future earnings. I would therefore only be prepared to make an award under this head at $46,824, being 6 months’ pay at his present earning of $7,804 per month. Of course, this is subject to the discount of 30% for the pre-existing degenerative condition. Value of services of the plaintiff’s mother 83.This item is raised in the pleadings, on the basis that the plaintiff’s mother served him for three months after he had met with the accident. I am quite surprised that Mr Chan has not dropped this claim because according to the evidence, the plaintiff was married and living with his wife in Hong Kong who was an office worker all along. Their children remain in Nepal and have not come to Hong Kong. He went back to Nepal between September and November 2011 to see his children and parents. There, his mother was looking after him. The video recording made of the plaintiff’s movements on 14 and 18 May 2011 (referred to above) shows that he was walking unaided and normally. He carried a back-pack and was buying food on an occasion. In my view, he would be able to look after himself. That was in May 2011, and in September to November 2011 when he returned to Nepal, I do not think that it would be necessary for his mother or for that matter, anyone else, to look after him, although according to him the ethnic medicine he took there made him well enough to return to Hong Kong to work as a security guard. I do not allow this item. Awards in total 84.To sum up, the total awards under the various headings are set out below. The required discount of 30% for the pre-existing degenerative condition of the plaintiff’s spine as well as the reduction of the awards at 20% by reason of his contributory negligence are included. All the figures are rounded off to the nearest dollar.
85.I also award interest at the rate of 2% per annum from the date of the writ (12 October 2011) to the date of this judgment on the general damages. The interest on pre-trial loss of earnings and other special damages is to be at half of the judgement rate from the date of the accident (4 November 2010) to the date of this judgment. 86.Credit has to be given to the sum of $216,500 having been received by the plaintiff as employees’ compensation paid by the defendants, which should be deducted from the total award. Costs 87.I also make an order nisi that the defendants do pay the plaintiff’s costs of this action on the District Court scale, to be taxed if not agreed. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr P K Chan, instructed by Chan Lawyers, for the plaintiff Mr Osmond Lam, instructed by Cheng, Yeung & Co, for the 1st and 2nd defendants |
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