Lam Chan Hung v. Hang Yue Engineering Ltd and Others
Read the full judgment text of HCPI 121/2011 on BabelCite. This High Court CFI judgment was delivered on 12 March 2013.
1. In this action, the plaintiff claims damages for personal injuries suffered as a result of an accident at work on a construction site on 1 March 2008. I was perplexed, when I reviewed the trial bundle, because I could not see any Labour Department Accident Report, or any Site Safety Officer’s Accident Report. In answer to my query, counsel for the plaintiff informed me that an accident report had not been prepared by the Labour Department, as there had been no investigation by their officer
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HCPI 121/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 121 OF 2011 ----------------------------- BETWEEN
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------------------------------------- J U D G M E N T -------------------------------------- 1.In this action, the plaintiff claims damages for personal injuries suffered as a result of an accident at work on a construction site on 1 March 2008. I was perplexed, when I reviewed the trial bundle, because I could not see any Labour Department Accident Report, or any Site Safety Officer’s Accident Report. In answer to my query, counsel for the plaintiff informed me that an accident report had not been prepared by the Labour Department, as there had been no investigation by their officers. He had not seen any Site Safety Officer’s report of the accident. On further enquiry, counsel for the defendants acknowledged that there was a Site Safety Officer’s report that had been prepared and which had not been disclosed because, according to those instructing him, “the other side had not asked for it”. Copies of the report were then produced for my perusal and the perusal of the plaintiff’s legal representatives. I adjourned for a short time for this purpose and, on returning to court, I was informed by counsel for the defendants that liability was conceded, leaving only the issue of contributory negligence to be determined by me. Given the contents of that Site Safety Officer’s report, the concession on liability was rightly made. 2.Since the enactment of the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations, Cap 59Z, by L.N. 100 of 2002, proprietors of industrial undertakings that come within Schedule 4 of these Regulations are required to employ safety officers who are charged, under Regulation 15, with the duty to assist the proprietor in promoting the safety and health of persons employed, including, for that purpose –
3.Such reports are always discoverable because their primary or dominant purpose is to report to the proprietor the circumstances of the accident and how it had occurred, and to make recommendations to prevent recurrences. It does not matter that the proprietors stamp such reports with the words, “private and confidential” or “subject to legal privilege”. Practice Direction 18.1 (“PD18.1”) provides in §19, in respect of the Pre-Action Protocol, that the parties should “communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum (including, without limitation, the information and documents identified in Schedules A and B of the specimen letter which have not already been served) as are reasonably required for attempting to settle the claim in whole or in part …”. Schedule B sets out the defendant’s documents that ought to be disclosed and, in industrial accident cases, these include:
4.The Accident Report that has to be disclosed as part of the Pre-Action Protocol is not only the Labour Department Accident report but also the Accident Report prepared by the defendants’ servants or agents including, of course, any Site Safety Officer employed pursuant to these Regulations. 5.If proper discovery is not made as part of the Pre-Action Protocol, then §67 of the PD18.1 requires that the same documents be served, together with the defence, if “they are available and not already served under the Pre-Action Protocol” … and, in so far as this is practicable:
6.Given these provisions, and the continuing obligation to disclose all relevant documents, it lies ill in the mouth of the reputable and experienced personal injuries solicitors representing the defendants to say that they did not disclose the Site Safety Officer’s accident report because the plaintiff did not ask for it. In future, PI Masters should be alert to enquire whether accident reports have been prepared and to ensure that they are disclosed at an early stage of the proceedings. The Accident 7.The accident that caused injuries to the plaintiff occurred on the afternoon of 1 March 2008, at a construction site known as Ventilation Open Space, Route 8 - Eagle’s Nest Tunnel (“the construction site”). At the time, the plaintiff was assisting in the unloading of metal frames from a lorry fitted with a crane (“the crane lorry”), when he was struck by collapsing metal frames. He fell to the ground, lost consciousness, and suffered injuries to his back, right ankle and right foot. It was not disputed that the plaintiff had been employed as a welder by the 1st defendant to work on the construction site and that the 2nd defendant was the principal contractor of the construction site. 8.It was common ground that, at about lunch time on 1 March 2008, 3 employees of the 1st defendant, namely, Mr Chan Yat Ching, who was a rigger, Mr Yip Siu Kwan, who was the driver and operator of the crane lorry, and Mr Chan Chong Keung, who was the foreman, were in the process of unloading metal frames that had been driven to the site on board the crane lorry. 9.It is the plaintiff’s case that he had bought his lunch box and was ready to take lunch. As he passed by the unloading area, he was requested by the foreman, Mr Chan Chong Keung, to assist them to unload the metal frames. He complied with the request and climbed onto the tray of the crane lorry to untie metal wires. These metal wires had been used to secure the metal frames to an inverted T-shaped frame that was affixed to the centre of the tray of the crane lorry and against which the metal frames had been rested and secured. The plaintiff worked on the tray of the lorry; Mr Yip Siu Kwan operated the crane; and the rigger, Mr Chan Yat Ching, and the foreman, Mr Chan Chong Keung, were on the ground receiving the metal frames. After untying the metal frames and releasing them from the inverted T-shaped frame, the plaintiff attached the released metal frames to the hook of the crane, which would then be operated by Mr Yip Siu Kwan to lift the frames off the tray and to be received on the ground by the foreman and the rigger. By the time of the accident, the smaller metal frames had been unloaded, leaving about 6 large metal frames on the tray of the crane lorry. When they were unloading some of these large metal frames by the use of the crane, it was discovered that the frames were still attached by metal wires to the inverted T-shaped frame. At this point, the rigger, Mr Chan Yat Ching, requested the plaintiff to go to the right side of the crane lorry to untie the metal wires. As requested, and when he was in the process of untying a metal wire, the crane operator, Mr Yip Siu Kwan, suddenly operated the crane to lift the metal frames that, previously, had been attached to the hook of the crane. As he did so, the other large metal frames, on the right side of the tray of the lorry, fell down and, in the process, knocked the plaintiff off the tray of the lorry and caused injury to him. The plaintiff asserted that the crane operator had operated the crane without receiving any instructions from him to do so. 10.Notwithstanding that the defendants have accepted liability in this case, they assert, nevertheless, that the plaintiff was guilty of contributory negligence in that he assumed and performed, on his own election and accord, the work of unloading the metal frames and that he did so contrary to the instructions given to him by the foreman. It was the defendants’ case that the large metal frames on the left side of the crane lorry were to be unloaded for use at the construction site whilst those on the right hand side of the crane lorry were to be delivered to another site. It was the plaintiff who came up to the foreman and asked if he could assist. He was told that his assistance was not required and he was advised to have his lunch instead. The foreman and the rigger then proceeded to perform the preparatory work for the unloading process, including laying out wooden racks on the ground to receive the metal frames. At this juncture, the plaintiff, acting contrary to the instructions he had received from the foreman, went up on his own accord to the right hand side of the crane lorry and improperly released the metal frames, including the large metal frames. The release of the metal frames caused them to be unstable, and to slide and strike the plaintiff, causing him to fall off the lorry, followed by the metal frames that fell on him. 11.The defendants’ case is supported by the evidence of the foreman, Mr Chan Chong Keung, who adopted his witness statement as his evidence in chief. In that statement, he had said that, on arriving at the construction site, he saw the plaintiff holding a lunch box ready to have lunch. The plaintiff asked him whether he needed any assistance and he replied in the negative, and told the plaintiff to have his lunch. He then prepared to unload the metal frames from the left side of the crane lorry, assisted by the rigger, Mr Chan Yat Ching, and by the operator of the crane, Mr Yip Siu Kwan. For reasons unknown to him, the plaintiff, on his own accord, went to the right side of the crane lorry. He suddenly heard a sound coming from the right side of the crane lorry and saw that the plaintiff had fallen onto the ground and that some metal frames had also fallen onto the ground. He had not realised, at that time, that the plaintiff had mounted the tray of the crane lorry on his own accord. He was specifically asked whether, before the accident, he had ever seen the plaintiff on the tray of the crane lorry and he answered that he had not. 12.In the statement he had made to the Site Safety Officer, Mr Clint Lo, which was dated 1 March 2008 and which he had signed, he had stated that the plaintiff had asked him whether help was needed to unload the goods and he answered that “you should eat your lunch first as you have already bought your lunch box”. However, the plaintiff voluntarily assisted in the unloading work, and he did not insist that he should not do so. The plaintiff was on the tray of the crane lorry whilst he was close to the rear of the vehicle moving wooden planks to prepare to receive the goods to be unloaded. Originally, the plaintiff was on the left side of the tray of the truck untying wires. He did not know why the plaintiff walked to the right side of the tray of the lorry untying wires. He saw two metal frames fall down, one small frame fell first, then the large frame slipped down, and he thought that the plaintiff was probably struck by the small metal frame weighing some 50 kgs. He was asked the following questions by the Site Safety Officer who recorded his answers in the statement as follows:
13.In cross-examination, he was asked whether he saw the plaintiff assist in unloading the metal frames before the accident occurred, and, after hesitating for some time, he answered “yes, it seemed so”. However, on being pressed for further details, the only answers he would give were that he did not pay attention, and that he did not remember. Although he insisted that he had not read his statement that had been recorded by the Site Safety Officer, he accepted that if the Site Safety Officer had made a proper record of his witness statement, then its contents would be true and accurate. When specific questions and answers, as recorded in that statement, were put to him, he said that he did not recall whether or not he had said so. Notwithstanding his evidence that he had no recollection of the answers he had given to the Site Safety Officer, he tried, nevertheless, to insinuate that there might be some difference between his verbal account and that which had been recorded by the Site Safety Officer; and he disagreed with the proposition that there was no reason why the Site Safety Officer would not record what he had said. 14.I find Mr Chan Chong Keung to be a thoroughly unhelpful witness who tried to distance himself from his own responsibility for this accident. He would not acknowledge the statements that he had made to the Site Safety Officer, as recorded by the latter individual, and he distanced himself from that statement by asserting that he could not remember what he had said to the Site Safety Officer. I have no reason to doubt the accuracy of the record made by the Site Safety Officer and I have no hesitation in rejecting the evidence of Mr Chan Chong Keung, contained in his witness statement and in his evidence in chief, that, before the accident, he did not realise that the plaintiff was on the tray of the crane lorry assisting in the unloading operation by untying the metal wires attaching the metal frames to the inverted T-shaped frames. I find it very difficult to place any weight on any of the evidence that this witness has given. He asserted that the metal frames for this particular construction site were placed on the left side of the crane lorry and that, on the right side of the crane lorry, there were two large metal frames, and five small frames, which had to be delivered to another site in Shatin Heights. However, the photographs appended to the Accident Report of the Site Safety Officer showed only 2 large metal frames and 1 small frame on the right side of the crane lorry. The photographs also showed that the side-board on the right side of the tray of the crane lorry had been lowered. On being asked why the side-board on the right side of the tray had been lowered if the frames on the right side were not being unloaded, Mr Chan Chong Keung answered that he had no idea why that was so. 15.I find the plaintiff to be a credible witness and I accept his evidence of the events of 1 March 2008 leading up to the accident that occurred. I accept his evidence, contained in his witness statement, and also given in court, that the foreman, Mr Chan Chong Keung, had asked him to put aside his lunch box and to assist in unloading the metal frames from the crane lorry. I accept his evidence that, although he was employed as a welder, he would still need to assist in performing other work on the construction site. The inherent probabilities of the case support his evidence. It appears to me to be unlikely that he would have put his lunch box aside and volunteered to help of his own accord. I find that he did so because he had been instructed to assist in the unloading of the metal frames. 16.The evidence that the plaintiff gave in support of his claims in quantum, to which I shall refer later in this judgment, did not cause me to doubt the evidence that he gave regarding the events leading up to the accident. He gave inconsistent evidence as to whether or not the crane operator, Mr Yip Siu Kwan, had climbed up to the tray of the crane lorry to assist in untying the wires. However, that did not cause me to doubt his evidence, or to alter my conclusion that he was attempting to give evidence about the events of that day to the best of his ability and recollection. It was his evidence that he had handed down the small frames from the left side of the crane lorry to the rigger, Mr Chan Yat Ching. However, the omission of this small detail in his witness statement did not cause any concern to me, nor did his evidence about the meaning of the Chinese character “ma”, which has been used to refer to a unit of metal frames tied together by metal wires, and which was also used to refer to the metal wires that were tied around the metal frames. 17.It follows from these findings that I do not accept the defendants’ case that the plaintiff, acting contrary to the instructions of the foreman, climbed onto the tray of the crane lorry on his own accord and recklessly and improperly released the metal frames. That, however, is not the end of the matter because I still have to consider whether the plaintiff’s own evidence of what he did, or did not do, before the accident occurred, amounted to a failure to have regard to his own safety. 18.The particulars of negligence pleaded against the plaintiff included, inter alia, the following assertions:
19.In summary, the defendants’ case on contributory negligence is that he released the metal wires securing the large frames on the right hand side of the lorry before first ensuring that they had been properly attached to the hook of the crane. It was common ground, and the plaintiff accepted in his evidence, that the proper procedure was to attach the large frame, by means of a leather belt, to the hook of the crane before removing the metal wires which secured the large frame to the inverted T-shaped frame on the crane lorry. In his evidence, he said that he had undertaken the work of attaching objects to be lifted to the hook of the crane on many previous occasions and that he was even more experienced than Mr Chan Yat Ching, the rigger. The plaintiff gave evidence that he had attached the large metal frames on the left hand side of the crane lorry, with a leather belt, to the hook of the crane before releasing the metal wires attaching the large frames to the inverted T-shaped frame of the crane lorry. He also said in evidence that:
Accordingly, the defendants submitted that the plaintiff was negligent in releasing the wires attaching the large frames on the right hand side of the crane lorry to the inverted T-shaped frame, before the large frames had been attached to the hook of the crane lorry, and which the plaintiff admitted he had done. 20.If the plaintiff knew that it was unsafe and, indeed, dangerous, to release the metal wires securing the large frames to the inverted T-shaped frame on the right side of the crane lorry, before they had been attached to the hook of the crane, why, then, did he do so on this occasion? Certainly, Mr Chan Chong Keung, the foreman, did not know. When asked by the Site Safety Officer why the plaintiff had gone to the right side of the tray of the crane lorry, he answered that he would guess that he had probably done so because it should be safer for him to be on the right side of the tray as the crane prepared to lift up the large frames on the left side. He was asked specifically why the plaintiff untied the wires on the right hand side, and he answered that he really did not know, but that the plaintiff was probably at the right hand side and stretched out his hands to untie the left hand side frames, or, maybe, that he was on the right hand side to avoid the rising crane. 21.In his Notice of Employees’ Compensation Claim of July 2008, the plaintiff had stated:
22.A similar statement appeared in §6 of the plaintiff’s witness statement in which he stated :
23.It became clear, when he gave evidence before me, that what he had meant to say was that the large metal frames on the left hand side of the crane lorry, which had already been attached to the hook of the crane, could not be lifted up because the metal frames were still attached by one single wire to the large metal frames on the right hand side of the lorry. This became apparent from his answers to the questions I had put to him at the conclusion of his cross-examination as follows:
Exhibit P2 is a diagram drawn by the plaintiff showing the single wire securing the large metal frames to both sides of the inverted T-shaped frame, and to each other. 24.In the absence of cogent and credible evidence from the defendants on how the large metal frames on both sides of the tray of the crane lorry had been secured, I do not find that the plaintiff’s account, of how they had been secured by one single wire, was so inherently improbable that I should reject his evidence. I accept his evidence in this regard and also his evidence that, when Mr. Chan Yat Ching appreciated the problem, he had asked the plaintiff to walk to the right side of the crane lorry to untie that metal wire. He did so, as instructed, and, as soon as he had untied that metal wire, and before he had given any signal to the crane operator to lift the large frames on the left hand side, the crane operator did just that and, thereby, caused the frames on the right hand side to fall and injure him. 25.On these findings of fact, I cannot conclude that there was any contributory negligence on the part of the plaintiff. As the lorry was stationary, there was some basis to support the view that the frames on the right hand side would not shift or collapse. Mr Chan Chong Keung, the foreman, said as much to the Site Safety Officer. When asked by him whether the large frame would fall by itself if there was no wire to secure the large frame to the inverted T-shaped frame, he had answered that “if you do not move [the large frame], it should not be a problem because the inverted T-shaped frame allowed the [large] frame to be placed against it at a slant”. The accident had occurred because the crane operator lifted the crane to unload the large frames on the left side of the crane lorry, before he had received an instruction to do so and before it was safe for him to do so. When he did so, the large and small frames on the right side of the crane lorry dislodged and struck the plaintiff. Even so, I would have found some degree of contributory negligence on the part of the plaintiff if he had removed the metal wires securing the right side large frames on his own accord. However, he had been instructed to do so and he simply followed instructions. Ideally, he should have refused to follow the instructions of Mr. Chan Yat Ching to release the wire attaching the large frames on the right side of the lorry to the inverted T-shaped frame but I would not fault him for failing to refuse to follow those instructions. Quantum 26.The plaintiff was born on 14 May 1955 and is some 57 years and 10 months old today. He was 5 years younger when the accident occurred on 1 March 2008. A good summary of his medical problems is provided in the joint psychiatric report of Drs Chow Lok Yee and Yu Wai Tak Peter dated 9 March 2011, in which they state:
27.The medical reports produced in this case record that, on 7 March 2008, he was treated with open reduction and internal fixation for the right foot and ankle fractures, and that his L3 vertebral fracture was treated with bracing. Subsequent CT and MRI scans showed burst fracture of L3 vertebra with 30% compromise and retropulsed bone fragments, and he underwent an operation for closed reduction and percutaneous pedicle screws fixation from L2 to L4 on 3 April 2008. Subsequently, removal of the right foot implant took place on 22 May 2008, and of the right ankle implant on 14 September 2009. 28.From 15 October 2008 to 28 July 2011, he attended some 19 sessions of physiotherapy. 29.On 21 September 2009, he attended the Psychiatric Department of Tuen Mun Hospital and was diagnosed with adjustment disorder, with features of post-traumatic stress disorder as indicated by his irritable mood, recurring nightmares, flashbacks and persistent low back pain. 30.Upon the second admission at the end of March 2008, the plaintiff was put on a foley catheter to empty his bladder after the back operation and when this was taken off a week later, the plaintiff started to notice frequency of urination, once every two hours and nocturia (urinary frequency at night) occurring two to three times every night. He was not able to maintain a normal erection and, since then, he has not had any sexual intercourse with his wife. He was seen at the Neurology Clinic of North District Hospital and was advised that he suffered from Benign Prostatic Hyperplasia (BPH), an age-associated enlargement of the prostate which may cause urethral compression and obstruction. The urinary symptoms were partially relieved by medication prescribed to him. 31.The plaintiff suffered from pre-existing ischaemic heart disease and raised triglycerides and hypertension. In fact, he had suffered a heart attack at work in 2007 and has been prescribed with various cardiac drugs. 32.The plaintiff was seen by the Occupational Therapist at the Alice Ho Miu Ling Nethersole Hospital on 4 November 2009 and attended 10 sessions of reconditioning training since then. A work capacity evaluation was conducted on 5 January 2010 and this revealed static progress in the plaintiff’s work strength and tolerance. His demonstrated work strength was still far below for him to return to his previous job as a welder which required prolonged squatting, prolonged standing, lifting heavy components and climbing up. Orthopaedic Assessment 33.A joint orthopaedic report dated 2 December 2010 has been produced by Dr Wong Wai Kwong, instructed by the plaintiff’s solicitors, and Dr Lam Kwong Chin, instructed on behalf of the defendants, following their examination of the plaintiff on 29 October 2010. It was recorded in the report that the plaintiff was born in mainland China, studied up to the secondary education level, and that he had come to Hong Kong in 1977. He worked in construction sites all along, and was a steelworker and a welder at a tunnel construction site at the time of the accident. He used to work 9 hours a day and had to work in various postures and had to lift weights. He is right-hand dominant. A record of his past history included the fact that he had fractured his left arm in 1986. He was taking oral medications daily for heart disease and had been doing so for some 3 to 4 years. He used to be a chronic smoker. He quit smoking after this accident. He told the doctors that he was not sporty and that he was “an occasional drinker”. He complained to the doctors of on-and-off back pain and tightness which increased with prolonged walking, prolonged sitting or lying still at night. This had remained static in the past one year. He also had on-and-off right ankle pain which increased with walking on stairs and occurred sometimes unprovoked at night. His ambulation was affected and he needed to rely on a stick when going out. He could tolerate walking for 15-20 minutes with a stick. He could not squat, jump or run. He complained of shortness of breath on exertion, that he had no morning erection, and that he had a poor temper. However, he said that he could handle activities of daily living and travel independently. 34.The two orthopaedic experts recorded their findings in their joint report and offered their joint opinion as follows. Examination of the chest revealed an essentially normal chest. The plaintiff had recovered satisfactorily from the fractures of the right 9th and 10th ribs, and he had no further symptoms referable to the chest except for suggestive residual shortness of breath on exertion. They agreed that he had suffered a compression fracture in the L3 vertebral body with a moderate degree of spinal stenosis (abnormal narrowing), and 30% compromise of the spinal canal, with retropulsion of bone fragments, and that this was compatible with the alleged mode of injury. They also found and agreed that there were pre-existing degenerative changes in the spine shown by degeneration and posterior bulging of L4/L5 disc and small protrusion of L5/S1 disc as shown in the MRI scan. They agreed that the treatment he received for his back was appropriate. They noted the plaintiff’s comments of residual back pain and tightness. Their examination revealed loss of lumbar lordosis, surgical scars and tenderness at lumbar spine, tenderness at midline and both sides of lumbar region and poor back movement. However, there was no spinal root tension or neurological deficit of the lower limbs. They also agreed that the plaintiff suffered from right ankle and foot fracture as a result of the accident and that there was no evidence of any pre-existing problems at the injured parts. Treatment by operations and rehabilitation had been appropriate. They noted his complaint of on and off right ankle pain and affected ambulation. They found on their examination that he could walk in a limping gait unaided, with his right leg externally rotated. He was unsteady on his right side when he tried to stand single-legged, or on tiptoes, or on his heels. He had thinner right thigh and calf muscles. He had multiple surgical scars and tenderness at his right ankle and foot, and he had also weaker ankle power and limited ankle motion. 35.They agreed that his condition was now stable and he could be regarded as having reached maximal medical improvement. Further treatment would not significantly change his condition. They also agreed that the spinal implants could be kept in situ and that removal was not required. 36.They agreed that the back injury amounted to a 12% impairment of the whole person and that the right lower limb injury amounted to a 6% impairment of the whole person, giving a combined impairment of 18%. 37.They were also in agreement that the plaintiff’s present condition prevented him from returning to his pre-injury work in construction sites. He had been granted sick leave from 1 March 2008 to 19 December 2011, not for the entire period of 45 months, but for more than 36 months within this period. Dr Wong was of the opinion that he could not take up any occupation at present that demanded prolonged standing, walking, lifting or bending of his back. By reason of his limited physical strength and endurance, he could only take up part-time sedentary jobs. Since he had no recognisable qualification nor working experience in other fields, in practical terms, there was no suitable gainful employment for him. For that reason, he believed that the sick leave granted to him was justified. Dr Lam, on the other hand, was of the opinion that sick leave of up to 2 years after the accident was appropriate for the plaintiff and that if he had the motivation to work, he could still undertake lighter jobs with less demand on weight-bearing capacity, such as office cleaning work, store assistant, petrol station attendant, car park attendant, simpler machinery operator, or jobs of similar nature. 38.Both experts offered their opinion on the impact of his pre-existing heart disease, hypertension and hyperlipidaemia, which required daily medication. Dr Wong was of the view that his medical condition was well controlled before the accident and did not prevent him from taking up his pre-accident occupation. Dr Lam, however, was of the opinion that, from a medical point of view, it would be potentially dangerous, or even lethal, for him to have strenuous work in construction sites. He had assumed such risks before the accident, either with or without awareness. Dr Lam estimated that the pre-existing medical conditions would have prevented him from working in his pre-injury job in 3 to 5 years’ time, even if he did not suffer the accident in March 2008. 39.After he had suffered a cardiac episode at work, he was taken by ambulance to Caritas Hospital. A consultation summary from Alice Ho Miu Ling Nethersole Hospital dated 14 October 2010 referred to his past health including ischaemic heart disease, hypertension and hyperlipidaemia as well as a reference to a CT scan done at a private facility, apparently in 2007, of his coronary arteries which showed calcified plaque at the mid-left anterior descending artery “less than 50%”, which I read to mean that the blockage at that location was more than 50%. Psychiatric Assessment 40.A joint psychiatric report dated 9 March 2011 has been produced by Dr Chow Lok Yee, instructed on behalf of the plaintiff, and Dr Yu Wai Tak Peter, instructed on behalf of the 1st and 2nd defendants. They examined the plaintiff on 13 October 2010 when the plaintiff told them that his symptoms had first occurred when he was in Tai Po Hospital, where he had been transferred for convalescence. He had sleep disturbance, nightmares and yelled in his sleep. The psychiatrists took his personal history noting that, from 1978 to 1986, he worked in construction sites and then had sick leave for about 2 years after an accident resulting in a fracture in his left shoulder blade and his left arm. Thereafter, he worked as a steelworker, and a welder in construction sites, which was less demanding physically, until the accident in 2008. They also noted that he regularly drank half a catty of rice wine and/or 2 bottles of beer a day and had done so for the past 20 to 30 years. He also smoked, and only quit smoking after the accident in 2008. 41.Although, he had nightmares 4 to 5 times per week initially, they now occurred once fortnightly or monthly. Dreams were less distressing and he could sleep for 6 hours, which was interrupted by right ankle pain, nightmares, and urinary frequency. He could fall asleep again after the interruptions. His appetite was not only normal but he had gained some 30 pounds after the accident. He was fearful when he recalled his accident, and when he heard of other accidents. He had suicidal ideas when he was in hospital but had not had any such ideas recently. He was easily irritable. He asserted that he drank much less after the accident and only drank red wine, but gave conflicting accounts of the quantity that he drank. His treating psychiatrist had asked him to quit. He seldom went out and, when he did, he was accompanied by his wife. Both doctors agreed that, following the accident, he had developed mental symptoms that fit the diagnosis of adjustment disorder. They agreed that the accident caused this disorder. The difference in their opinions lay in their different assessment of the severity of the mental symptoms. 42.Dr Chow was of the view that he was also suffering from symptoms of post-traumatic stress disorder (“PTSD”) but he fell short of one criterion to fulfil a full-blown diagnosis. When the accident occurred and he was severely injured, he feared he would die (thereby satisfying criterion A1 and A2). He had intrusive recollections of the accident when he heard news about other accidents (satisfying criterion B1). He developed recurrent nightmares of the accident (satisfying criterion B2). He avoided going out and did not socialise with friends (satisfying criterion C4). He did not expect to have a career and was afraid of death (satisfying criterion C7). His sleep was impaired (satisfying criterion D1) and he was highly irritable (satisfying criterion D2). His memory was impaired and he had lapse in concentration (satisfying criterion D3). 43.Dr Yu was of the opinion that the symptoms described by Dr Chow were those of adjustment disorder and that the plaintiff did not re-experience the accident but merely recalled it at times. He did not feel the same fear and horror which he had experienced at the time of the trauma. Re-experiencing the accident was unique to PTSD. Without it, there would not be avoidance or hyperarousal. Dr Yu concluded that, without this cardinal symptom, there was no PTSD. 44.When the plaintiff gave evidence before me about the accident, he did not present to me any symptoms of hyperarousal as would suggest that he was actually re-experiencing the accident. To that extent, I agree, with Dr Yu, that his present symptoms are symptoms of adjustment disorder. However, I accept the opinion of Dr Chow that he did suffer from symptoms of post-traumatic stress disorder, albeit he did not suffer from a full-blown condition of this serious psychiatric illness. Thankfully, those symptoms have abated with time. 45.Dr Chow was of the opinion that the prognosis of the depressive symptoms he suffers from is poor, as the extent of the physical injuries he had suffered was severe, and resulted in a substantial degree of permanent impairment. That may be so but, thankfully, his current symptoms are mild, when compared to the original onset of his psychiatric problems, and I agree with Dr Yu that they are likely to improve further, particularly after this litigation is concluded. 46.There is a slight difference in opinion between the two psychiatrists as regards further treatment. Dr Chow was of the view that 12 months of medications and additional psychological treatment would be of benefit. Dr Yu thought that 6 months of medication from a psychiatrist would suffice and that it was likely that the clinical psychologist, who had provided intensive weekly therapy in the initial months after the accident, had concluded that the plaintiff no longer required further therapy. Moreover, he thought that the treating psychiatrist could provide counselling support to the plaintiff. Whilst I prefer the opinion of Dr Chow that, probably, 12 months of further medication would be needed, I also agree with Dr Yu that additional psychological treatment is not necessary. Urological Assessment 47.I have also before me a joint urological report dated 17 January 2011 by Dr Yip Siu Keung, instructed on behalf of the plaintiff, and by Dr Richard Lo, instructed on behalf of the defendants. They prepared the joint report following their joint examination of the plaintiff on 17 December 2010. They concluded that the plaintiff’s urinary symptoms were mainly caused by the BPH, commonly known as enlarged prostate. Their examination revealed that his prostate was only slightly enlarged. They also agreed that the symptoms were possibly aggravated to some extent by the back pain and the right lower limb problems. They were of the joint opinion that his impotence was not neurological in origin but they agreed that his back pain and right lower limb problems would affect his sexual performance. They assessed his urinary problems as amounting to a 2% impairment of the whole person and his sexual dysfunction as amounting to a 5% impairment of the whole person. I sought clarification from the doctors of the extent of the contribution made by his back pain and right limb problems to his urinary symptoms and sexual dysfunction. Both doctors agreed that the contribution of the back pain and right lower limb problems to the urinary system was minor, Dr Yip explaining that the contribution from the back pain and the right lower limb problems to the urinary problems was assessed at only a 2% impairment of the whole person. By way of comparison, the bladder symptoms, which were largely caused by the enlarged prostate, including the contribution from the back and lower limb injury, amounted to an 8 to 9% impairment of the whole person. 48.Whilst both doctors agreed that the sexual dysfunction amounted to a 5% impairment of the whole person, they parted company in that Dr Lo was of the view that only 75% of that sexual dysfunction was attributable to the back pain. Dr Yip, on the other hand, was of the view that the sexual dysfunction was entirely the result of the injuries suffered in the accident and that there were no other contributory factors. In the absence of any evidence to suggest that the cardiac drugs prescribed to the plaintiff inhibited his sexual function, I prefer the opinion of Dr Yip on this specific issue. Credibility of the plaintiff 49.I have carefully considered the many submissions to the contrary but I am not persuaded by them and I find the plaintiff to be a credible witness. He tried to give evidence before me to the best of his ability and recollection. Clearly, his recollection was faulty at times and he was also defensive, particularly when he was pressed about his drinking. At one time, in the course of his evidence, he had said that he had fractured his right arm in the 1986 accident. At another time, he said that he had fractured his left arm, and this statement was supported by the medical records. He clearly has a drinking problem, but his defensiveness about it did not lead me to conclude that he gave less than credible evidence on the material aspects of his past and present physical and mental condition. Indeed, he frankly admitted that he relied on a walking stick, not so much because he could not walk without it, but because relying on it eased his mind. It was stated in the joint orthopaedic report, and the plaintiff did not deny this, that he could use public transport independently. The video surveillance evidence showed that he was capable of using public transport, making his own way to a restaurant, and to a wet market, and crossing the road. However, the video surveillance evidence also showed that he had difficulty walking downstairs and up slopes. 50.It is not right to say that the plaintiff concealed his cardiac problems. The record of his past health that was set out in the joint orthopaedic report showed that he had received treatment for heart disease at the medical clinic of the Caritas Medical Centre and at the Alice Ho Miu Ling Nethersole Hospital for 3 to 4 years, that he was taking oral medications daily, and that he had been followed up in the medical clinic of the said hospital, since August 2007, for ischaemic disease, hypertension and hyperlipidaemia. Although it was apparent from his testimony that he had suffered a heart attack, or cardiac episode, in 2007, and that he was away from work for a substantial period of time in March and May 2007, his payroll records showed that he was earning about $15,000 per month from June 2007 to the end of February 2008 (save for slightly reduced earnings in September 2007 and the first half of February 2008, which might be explained by the Chinese New Year holidays). Whether or not it was advisable for him to go back to work as a welder after he had suffered the cardiac episode, he clearly chose to do so, and he earned a decent wage doing so. Damages for PSLA 51.The range of awards for damages for PSLA was revised in Chan Pui Ki v Leung On [1996] 2 HKLR 401 as follows :
52.Judgments that have been handed down since then have taken into account the effects of price inflation since 1996. The starting point of the “serious injury category” was reset by the Court of Appeal in Lawati Bhawani Bikram v. Ting Kau Contractors JV (CACV 3/2002, 25 September 2002) at $460,000. A corresponding increase of starting points of the other categories produces the following range of awards after that decision in 2002:
53.The plaintiff suffers from serious and continuing permanent disabilities arising from his back and leg problems. These are aggravated by his adjustment disorder, and his urinary symptoms and sexual dysfunction. His abilities adversely affect the quality and enjoyment of his life. I have little hesitation in concluding that his injuries fall within the top end of the serious injury category and border on the substantial injury category. Unfortunately, I have received little assistance on PSLA comparables, the plaintiff’s counsel citing cases which are far more serious than the present one and the defendants’ counsel citing cases which are far less serious. I assess damages for PSLA in the present case in the sum of $620,000. Pre-trial Loss of Earnings and MPF 54.The plaintiff’s pre-accident earnings are well documented in the salary payment record on p.635 of the Bundle which showed that he earned just under $160,000 in the 12 months from March 2007 to February 2008. That record matches fairly well with the statements of the payments actually made into his bank account for the same period which, however, comes up to slightly above $160,000. On this evidence, I find that his income in the year preceding the accident amounted to about $160,000, or about $13,333 per month. However, his earnings between March and May 2007 were considerably less than normal, and this period appeared to coincide with the period immediately following his cardiac episode. In these circumstances, I am prepared to accede to the submissions of the plaintiff’s counsel who urged me to take, not the entire 12-month period before the accident, but the period of 9 months immediately preceding the accident to assess his pre-accident earnings. Taking the figures from the salary payment record, his earnings for this period amount to just over $133,000 and give an average monthly income of $14,833, which I find to be the plaintiff’s pre-accident monthly earnings. 55.Before proceeding to assess damages for loss of earnings, I must deal with two specific aspects of the case, namely, the impact of his pre-existing condition on his earning capacity and what, if any, residual earning capacity he enjoyed after he suffered this accident. The impact of his pre-existing condition on his earning capacity 56.I have no difficulty concluding that he had fully recovered from the injuries that he had suffered in the 1986 accident, and that those injuries, and any remaining residual disabilities from those injuries, no longer curtail his earning capacity in performing the work of a welder in construction sites, or other work on construction sites requiring long hours of physical work and the lifting and carriage of heavy objects. On the other hand, I do find that his heart disease and hypertension impacts on his capacity to work as a welder on construction sites. He would have been well advised, after suffering a heart attack in 2007, to change his employment in order to perform less strenuous work. Whether or not he was so advised, he decided to continue to work as a welder and, obviously, he managed to perform such work and earned substantial wages in the 9 months preceding the accident. However, he could only do so by risking his own health since heavy manual labour could increase his heart rate to a level as would risk the occurrence of another cardiac episode. He reaped the reward of higher earnings by taking that risk to his health and I find, had this accident not occurred, that he would have continued to work as a welder on construction sites until he found that he could no longer perform such heavy work. I also find that, had this accident not occurred, the effect of age, coupled with his heart condition, would have led him to stop working as a welder by now. I am prepared, based on these findings, to assess damages for loss of earnings from the date of the accident to the date of this judgment by awarding his full loss of earnings as a welder over the period of sick leave which ought reasonably to have been granted to him and, thereafter, to award partial loss of earnings based on the difference between the earnings of a welder on a construction site and any notional earnings that he ought to have earned by reasonably exercising any residual earning capacity that he possessed. 57.I find, further, that, if the accident had not occurred, he would have changed to perform lighter work by now and that he would have performed such lighter work until the age of about 65. Examples of the salary that could be earned from such work are shown on pp.643-1 to 643-4 of the Bundle and come from the statistical tables of the earnings of security guards and cleaners, compiled by the Census and Statistics Department, as at June 2012, and available jobs for car park and petrol station attendants, posted on the Interactive Employment Service website of the Labour Department, which, counsel for the defendants informed me, offer average monthly earnings of $7,500. I have taken judicial notice of the latest statistics from the Census and Statistics Department showing average salaries for security guards and cleaners up to September 2012, and of current job offers for petrol station and car park attendants posted on the Interactive Employment Service of the Labour Department. Whilst they show some increases in salary paid and offered, I find that the sum of $7,500 per month is a reasonable measure of his current earning capacity, had the accident not happened, given his age and lack of relevant experience which would adversely affect his ability to achieve the average earnings paid for such work. His residual capacity to work after the accident 58.Notwithstanding the problems presented by his residual back pain and tightness, and his impaired mobility and limping gait, I find that the plaintiff had the residual capacity, after the expiry of a reasonable period of sick leave, to undertake some lighter work, such as that of a shop assistant or cashier, which did not require much ambulation or lifting. However, I also find that his current physical condition and age would have presented insurmountable obstacles to his ability to secure such employment in Hong Kong’s very competitive labour market. I find that his physical condition and his age made him practically unemployable and, therefore, I do not fault him for not taking any steps to mitigate his loss by looking for suitable work. The concession, made by his counsel, of a residual earning capacity of $1,500 per month as a part-time cashier is, in my judgment, a fair and reasonable basis upon which to assess his loss of earnings. 59.I award full loss of earnings as a welder for a period of 40 months from the date of the accident. Weighing the effect of his physical injuries, the impact of his adjustment disorder, and the period of rehabilitation that he required, I find that a period of some 36 months from the date of the accident would be a reasonable period of sick leave in this case. I would allow a further period of about 4 months as a reasonable period for him to look for, and secure, alternative employment as a part-time cashier or shop assistant. Pre-trial Loss of Earnings and MPF 60.The parties have produced a table of average daily wages of workers engaged in public sector construction projects compiled by the Census and Statistics Department. This table, at p.651 of the Bundle, showed average daily wages of a general welder to be $925.90 per day as at February 2012. I take judicial notice of similar tables from the Census and Statistics Department showing the average daily wage of general welders, in March 2008, to be $783.60 per day, and, in November 2012, to be $1,002.30 per day. The average daily wage of general welders on construction sites has increased by some 28% from March 2008 to November 2012. Applying the same increase to the plaintiff’s pre-accident earnings of $14,833 per month produces a sum of $18,986 per month which, in turn, produces a median of $16,910 per month. I take this latter amount to assess full loss of earnings for the period of 40 months from the date of the accident in the sum of $710,220, inclusive of loss of MPF benefits ($16,910 x 40 months x 1.05). 61.I award partial loss of earnings for the balance 20 months of the pre-trial period in the sum of $323,610, inclusive of loss of MPF benefits [($16,910 - $1,500) x 20 months x 1.05]. Future Loss of Earnings and MPF 62.I have found that, even if he had not suffered this accident, he would have stopped working as a welder on construction sites by now, and that he would have undertaken lighter work, earning about $7,500 per month, from now until he reached the age of about 65. On that basis, I assess his future partial loss of earnings in the sum of $6,300 per month, inclusive of loss of MPF benefit [($7,500 - $1,500) x 1.05]. He is now almost 58 years old and his future loss of earnings will continue for a period of some 7 years. In my recent judgment on the discount rate to be applied to select the appropriate multiplier, Chan Pak Ting v Chan Chi Kuen and others, HCPI 235/2011, 7 February 2013, I assessed a net rate of return, net of inflation, of 1% per annum to assess damages for future losses and expenses not exceeding a period of 10 years. In my earlier decision in the same case, given on 16 October 2012, I held that actuarial tables ought to be used to select the appropriate multiplier to be adopted to assess future losses and expenses. These tables, which I refer to as the “Chan Tables”, appear in Personal Injury Tables Hong Kong 2013. Table 9 of the Chan Tables gives a multiplier of 6.61, calculated with allowance for projected mortality and a net rate of return of 1%, for a person aged 58 at the date of trial who would work to age 65. I apply this multiplier to assess the plaintiff’s future loss of earnings, inclusive of loss of MPF benefits, in the sum of $499,716 ($6,300 x 12 months x 6.61). Loss of Earning Capacity 63.There is no scope for any award for damages for loss of earning capacity in this case as I have awarded damages for the entire loss of earnings, both full loss as well as partial loss, suffered by the plaintiff. Although I have assessed a residual earning capacity based upon the concession made by his counsel, of the sum of $1,500 per month, that assessment was made on the basis that he would undertake part-time work and not full-time work. In the latter case, it might have been possible to assess an additional award of damages under this head of claim on the basis that his continuing disability would have required him to take time off doing even this lighter type of work. Pre-trial Expenses 64.Pre-trial expenses are claimed in a total sum of $49,010.60, which are agreed, save for the claim for tonic food in the sum of $20,944.60. I award $28,066 ($49,010.60 - $20,944.60) as agreed pre-trial expenses. The plaintiff produced a bundle of receipts, contained in Bundle E, to support these claims. A summary of the receipts produced showed that some $4,000 had been expended on chilled chicken and pork, almost $9,000 on Chinese herbs, almost $7,000 on fish maw, and the rest on other products. I find as a fact that these expenses were actually incurred by the plaintiff. 65.There is no better statement of the modern approach to the making these awards than that of Master Woolley in Mak Yiu Keung v Ho Cheung Kat (HCA No.A2413 of 1991, 6 June 1995) where he stated :
66.Liu J, as he then was, had observed in Lo Wai Keung v Kings Light Industrial Ltd (HCA 2498 of 1991, 26 March 1992, at §24) that it was highly debatable that a western doctor would have any expertise on the beneficial effects, if any, of Chinese herbs and traditional nourishing food. With the greater acceptance of traditional Chinese medicine these days, it may be advisable, in an appropriate case, to apply for leave of court to obtain an opinion from a practitioner of traditional Chinese medicine to support claims for tonics and nourishing food. Whilst the Court of Appeal, hearing the appeal from the decision of Liu J. (CACV No.80 of 1992, 21 December 1992), did not disagree with the matters of principle expressed by Liu J, it set aside the award made by him, of $28,060, and replaced it with an award of $5,000, which they considered to be the maximum award possible under the circumstances, reconfirming the approach of the courts dealing with these claims “to allow a modest amount to cover such expenditure without going into the question of the efficacy in any great detail”. 67.For many years, this head of claim has been assessed in a rough and ready way by taking a modest amount as the daily cost of nourishing food, and multiplying that amount by the number of days spent in hospital. I would assess that modest amount today to be $100 per day for every day spent in hospital, and I award the sum of $10,000 to the plaintiff, as reasonably incurred pre-trial expenses for nourishing food, on the basis that he was in and out of hospital from 1 March 2008 until mid-June 2008. Future Loss and Expenses 68.I am not satisfied that the plaintiff has properly established his claims for the future cost of walking sticks, painkillers and stomach pills. The latter may well be required because of the cardiac medication that he has to take. I would, however, award the cost of 12 monthly treatments by a psychiatrist in the sum of $2,000 per treatment, which comes to a total of $24,000. Employees’ Compensation 69.The sum of $700,000, received by the plaintiff as employees’ compensation, must be deducted from the damages I have awarded. Interest 70.I award interest at 2% per annum on general damages for PSLA, from the date of service of the writ to the date of judgment, and at 4% per annum (being half the current rate payable on judgment debts) on the award of pre-trial loss of earnings and other pre-trial expenses, from the date of the accident until the date of payment of employees’ compensation, and, thereafter, on the remaining balance (after the deduction of employees’ compensation) up to the date of the judgment. Costs 71.I make a costs order nisi that the defendants pay the plaintiff his costs of the action to be taxed, if not agreed. I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.
Mr Jackson Poon, instructed by Or & Partners, for the Plaintiff Mr Michael Ozorio SC & Ms Vanessa K W Kwok instructed by Cheng, Yeung & Co., for the 1st and 2nd Defendant |
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