Wong Man Kin v. Golden Wheel (C&HK) Transportation Co Ltd (in Liquidation)

HCPI 913/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 913 OF 2011

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J U D G M E N T

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1.In this action plaintiff claims damages for personal injuries arising from an accident at work. The plaintiff was employed by the defendant as a container truck driver to drive a tractor towing a trailer to transport containers locally. On 30 December 2008, the plaintiff was injured in an accident that occurred at the wharf near Harvest Terminal and Warehouse Limited at 5-9 Tsing Keung Street, Tsing Yi, New Territories (“the Terminal”). On that day, the plaintiff had climbed into and cleaned the interior of an empty refrigerated container that had been laden onto his trailer. He slipped and fell to the ground below when he was coming out of the container and tried to climb down. His case was that the employer failed to provide adequate equipment in the form of a suitable ladder for him to use to climb in and out of the container.

The Evidence relating to the Accident

2.The circumstances of the accident are set out in the plaintiff’s witness statement dated 18 December 2012.  He stated that, at about 11 a.m. on 30 December 2008, he had driven the defendant’s tractor LJ 7942 with a trailer 46552T to the Terminal to collect an empty refrigerated container.  The container was 40 feet long and was fitted with 2 doors at its end.  The container had been shipped to Hong Kong from Mainland China by sea.  It was lifted and placed onto the trailer.  Prior to the container being shipped back to Hong Kong, its interior had been washed and cleaned in China.  As far as the plaintiff knew, the refrigerated containers were cleaned with high pressure water jets in China.  After cleaning, the containers would be shipped out without any steps being taken to dry the interior of the containers.

3.After the plaintiff received the container, he drove and parked his tractor and trailer at an open space at the Terminal in order to clean and inspect the container for any damage.  It was part of his duty to do so.  On that day, when he opened the doors at the rear of the container, a large amount of water flowed out causing the bumper bar of his trailer to become wet.  The floor of the container was about 1.5 metres above the ground below.  The defendant had not provided any platform or ladder for the drivers to climb up in order to get into the containers and to climb down from the containers.  The drivers had to grab the horizontal door lock bars on the doors of the container and step on the bumper bar of the trailer to reach up and get into the container.  Further, the defendant had not provided any safety shoes or anti-slip protection and the drivers wore normal shoes to work.

4.On that day, the plaintiff grabbed the handle of the container doors and stepped on the bumper bar of the trailer in order to climb up to get into the container and, in the course of doing so, the soles of his shoes became wet.  After he had finished cleaning and inspecting the interior of the container, the plaintiff was ready to climb back to ground level.  He stood on the edge of the container facing the inside of the container.  He said in his witness statement that he grabbed the handle of the left container door, which was closed, and stepped on the bumper bar of his trailer with his left foot.  However, owing to the bumper bar and the soles of his shoes being wet, his foot slipped when his left foot landed on the bumper bar.  As a result, he lost his balance and fell 1.5 metres to the ground below injuring his back. 

5.After the accident, he felt pain in his lower back.  He managed to get up slowly and he finished his work for that day.  He hoped that his back pain would improve.  However, on the following day, despite a night’s rest, there was no improvement to the back pain.  On that day, he reported for duty and went to inspect the tyres of the trailer.  When he bent his back to inspect the tyres, he felt aggravated pain in his back and the pain radiated down to his leg.  He was unable to stand up. The plaintiff then phoned “Ah Cheong”, the head driver of the defendant and informed Ah Cheong that he had to go to hospital for treatment.  The plaintiff then went to the Accident & Emergency Department (“A&E”) of Kwong Wah Hospital.

6.In his evidence-in-chief, he described the pain he felt when he bent down the next day to check the tyres as a sharp pain.  He also clarified that the distance from the floor of the container to the top of the bumper bar was more than 1 metre and that the distance between the top of the bumper bar and the ground was more than 1 foot (i.e. more than 0.3 metres).

7.Under cross-examination, he said that at around 8:00 p.m., when he was about to get off work, he told his driver supervisor named “Ah Cheong” that he had slipped and that he might need to see a doctor.  He had told the orthopaedic specialists[1], who jointly examined him on 11 March 2011, that he fell to the ground, landing on his left lower limb and buttocks, and felt pain in his lower back.  For the reason that he did not feel any great discomfort, he completed the work of that day.  At the end of the day’s work, he reported the accident to his supervisor. 

8.Some time was spent in the course of his cross-examination on how he had alighted from the container when he slipped and fell. 

9.Notwithstanding some initial confusion, it became clear that it was his evidence that, in order to enter the container, in accordance with normal practice, he had opened the door of the container on the right side and, with his right hand, held the edge of the opened right door, while his left hand held the edge of the closed left door. He then stepped on the bumper bar and lifted himself up to enter the container. 

10.His evidence, under cross-examination, of how he alighted from the container departed from his account in his witness statement. He said that:

“Normally speaking, I would use my right hand to grab hold of the left side of the door, and then I would use my left foot to step on the top of the trailer.  That is, the area -- that’s the two inches area just above the “long vehicle” sign.  If necessary, I would also use my left hand to grab hold of the left handle on the left side of the door, and then to put my right foot on the top of the bumper.  It is our correct way to balance ourselves, and many drivers who would do the same.” 

The “Long Vehicle” sign is shown on the photographs on p. 365A of the trial bundle.  This sign is affixed to at the top part of the end of a trailer and is designed to warn following vehicles that they are following a tractor pulling a long trailer.  The photographs on p. 365A also show a container laden on the trailer which is not flush with the end of the trailer but is slightly recessed leaving a small gap between the base of the container and the end of the trailer.  I infer from the evidence of the plaintiff that he was suggesting that this protruding gap at the top end of the trailer on which the container was laden provided a sufficient toe-hold for his left foot.  When pressed why he did not give this account in his witness statement, he answered that if he had needed to go into this detail, it would have required a very detailed description to his lawyer and that he had given his lawyer a simple and fast description in his witness statement.

11.The plaintiff was not re-examined about the 2 inconsistent versions he had given.  The version in his witness statement was to the effect that he stepped off with his left foot and that, owing to the bumper bar and the soles of his shoes being wet, his foot slipped when his left foot landed on the bumper bar.  As a result, he lost his balance and fell 1.5 metres to the ground below injuring his back.  The version he gave in the witness box was to the effect that he stepped off from the floor of the container with his left foot and stepped on the protruding gap at the top of the trailer before he put his right foot on the top of the bumper.  It must follow from this account that his evidence was that, owing to the bumper bar and the soles of his shoes being wet, his foot slipped when his right foot landed on the bumper bar and, as a result he lost his balance and fell 1.5 metres to the ground below injuring his back. 

12.It was suggested to the plaintiff in cross-examination that he failed to have regard to his own safety in 3 respects: by not using an aluminium ladder that was available to access and egress from the container; by extending his right arm across the front of his body to hold the left side door in an awkward manner; and by not holding the side of the open right door with his right hand in order to improve his balance when he stepped down from the container.   

13.He disagreed with the suggestion that extending his right arm across his body to hold the left side door was unsafe and, to the last suggestion, he answered that the right door had already been swung open and that, from his position inside the container, it was impossible for him to extend his right arm to grab hold of the edge of the right side door.  There had been a further suggestion putthat he was careless in stepping on the bumper bar with his left foot and that the natural way to climb down was to use the opposite arm and opposite leg to balance; i.e. the left hand holding the fixed left door and the right foot on the bumper bar, before the left foot came down.  It was not clear whether or not this suggestion was put in conjunction with the suggestion that he should have held on to the edge of the open right door with is right hand.  In any event, his evidence, under cross-examination, was to the effect that he had used his right hand to grab hold of the left side of the door, and then his left foot stepped onto the protruding part of the top of the trailer that was a few inches below the floor of the container, before his right foot stepped on the bumper bar that was 1 metre below the floor of the container.

14.He accepted that tall aluminium ladders were available at the Terminal but he considered them unsuitable for him to use as they were designed to access the top of the container as shown in the photograph on p. 356 of the bundle.  He had used these ladders when he had to perform repair work at the top of the container.  On that photograph, the right side door of the container is shown to be open and the ladder can be seen to be leaning against the left side closed door of the container.  It was suggested to the plaintiff that the ladder could have been rested against the top of the container at the right hand side which was open so that one could step onto the ladder, climb up to the rung that was at the same level as the floor of the container, and then step off the ladder onto the floor of the container.  The plaintiff disagreed that this could be done and suggested that to do so would require a swing action and that it was impossible.  I understood him to mean, by that evidence, that, as the ladder would be leaning at an angle against the top of the container, there would be a considerable gap between the floor of the container and the rung of the ladder that was level with it, such that it was impossible to step off the ladder to enter the container without a swinging action to bridge the gap between the container and the ladder.

15.The defendant had served a witness statement of Mr Wu Wai Chung but he was not called to give evidence.  Accordingly, his witness statement is not in evidence before me.

Findings and Analysis

16.Although the defendant had not called any witnesses, it is not incumbent on me to accept the evidence of the plaintiff on his assertions that he suffered an accident at work and how it happened.  He did not seek medical help right away and only sought medical assistance at the A & E of Kwong Wah Hospital on 31 December 2008 when, according to the medical report of Dr Yang Siu Ming dated 5 January 2010,  he complained of a sprained back sustained whilst on duty the day before.  However, having carefully considered and weighed his evidence, I find that he has been a truthful witness and that I can rely on the evidence he has given to me about how the accident occurred.  A lot of people fall down, whether at work or elsewhere.  It is not unusual for one to pick oneself up after falling and to get on with one’s work.  It is also not uncommon for symptoms to manifest at a later time. 

17.I accept the plaintiff’s evidence that the tall aluminium ladders were not suitable to use as a means of access to and egress from the interior of the container, as, with the ladder leaning against the top of the container, there would be a considerable gap between the floor of the container and the rung of the ladder that was level with it, such that to enter or exit the container by means of such a ladder was a risky manoeuvre requiring some agility to execute.

18.It was the defendant’s duty to provide a safe place of work, a safe means of access and egress, and a safe system of work.  I accept the evidence of the plaintiff that the distance between the ground and the floor of the container was more than 1.3 metres.  It was the duty of the plaintiff to inspect the interior of the refrigerated containers that he was tasked to deliver.  It was reasonably foreseeable that the floor of such containers could be wet and pose a hazard to the defendant’s employees exiting the container by trying to step on the bumper bar of the trailer that was more than a metre below the floor of the container when the soles of their shoes were wet.  Even if no such accident had occurred in the past, the risk of such an accident was clearly foreseeable given the distance between the floor of the container and the bumper bar and given the wet conditions which would reduce friction between surfaces.  There was no ladder affixed on the trailer which could be use to enter or exit from the interior of the container.  A short folding portable aluminium ladder could have been provided to drivers at little cost to use to enter and exit from the interior of the container.  No evidence was adduced to suggest that there was insufficient space for such a ladder to be stored inside the driver’s compartment on the tractor. 

19.I find that the accident occurred as described by the plaintiff in his oral evidence, and that he slipped and fell to the ground.  I find that he fell because the soles of his shoes were wet and that his right foot slipped when he stepped on the wet bumper bar of the trailer.  The accident was easily preventable by the provision of a short folding portable aluminium ladder.  I find the defendant liable in negligence of failing to provide a safe place of work, a safe means of access and egress, and a safe system of work. 

20.I accept the evidence of the plaintiff that, as he was standing inside the container, he could not reach out and grab the edge of the openright side container door, which he could easily do when he was standing on the ground and climbing up into the container.  I also accept the evidence of the plaintiff that he extended his right arm across the front of his body to hold the edge of the closed left side door, and that he also used his left hand to hold the handle on the left side door which I understand him to mean the horizontal bar shown on the top photograph on p. 365A which was used to shut the container door.  He did so in order to safeguard himself against falling as he stepped down from the container.  I do not accept the suggestion of the defendant that using his right hand to hold the edge of the closed left door would affect his balance.  Even if it did, it was much safer for him to use both hands to hold the closed left door, than to only use his left hand to hold onto that door, as he stepped out of the container. 

21.However I find that his slip and fall was also contributed to by the manner in which he stepped out of the container.  That 2-inch protrusion at the top of the trailer did not provide much of a toehold, not to mention a foothold, for him to steady and balance himself as he lowered his right foot to try to step on the top of the bumper bar more than 1 metre below him.   I find that his slip and fall was partly caused by the lack of proper balance, created by the insufficient foothold that he had for his left foot at the top of the trailer.  This lack of proper balance contributed to his slip and fall when his right foot landed on the wet bumper bar.  I find that the accident was contributed to by the negligence of the plaintiff failing to have sufficient regard for his own safety when he chose a method of alighting from the container that was clearly unsafe and that contributed to his slip and fall.

22.I would not have faulted the plaintiff if he had alighted in the manner he had described in his witness statement, namely, by holding on to the left door and stepping down with his left foot onto the bumper bar below, although that manner of alighting still posed a risk given the wet conditions and the distance between the bumper bar and the floor of the container.  By doing so, he would have been able to hold onto the closed left-hand side door with both hands and, with his right foot on the floor of the container, he could provide himself with the best possible balance while he reached for the bumper bar below with his left foot. 

23.The primary responsibility for the accident must lie with the defendant who failed to provide a safe means of access and egress and left the plaintiff to his own devices in choosing a way to get down from that container when he did not have a suitable ladder to use in order to do so safely.  Taking this and the contributing causal factors into account, I assess the plaintiff’s contributory negligence at 25%.

Quantum

24.The plaintiff was born on 30 January 1963 and was 1 month short of his 45^th birthday on the date of the accident on 30 December 2008.  He is now just short of 52 and a half years old.

Injuries and Treatment

25.The plaintiff attended the A&E of Kwong Wah Hospital on 31 December 2008 complaining of back sprain sustained at work the day before.  Physical examination revealed tenderness over lower lumbar back and left sacroliac region.  He was given analgesics and discharged with sick leave.  The plaintiff continued to suffer from persistent low back pain radiating to left lower limb.  On 26 May 2009, an MRI was taken that showed a significant posterior disc extrusion that obliterated the left lateral recess resulting in displacement and compression of the descending S1 nerve while the ipsilateral descending sacral nerves within the thecal sac were displaced posteriorly.  This finding was consistent with clinical findings of associated radiculopathy. The MRI also showed lumbar spondylosis and minimal diffuse disc bulge at L4/5 level.  The Plaintiff also started to develop psychiatric symptoms including low mood, easy irritability and loss of interest since about June 2009.  His various treatments and physiotherapy and occupational therapy sessions are well summarised in the joint orthopaedic report of Dr Johnson Lam, nominated by the plaintiff, and Dr Lau Hoi Kuen, nominated by the defendant.  Pursuant to the leave previously granted, I received their written report into evidence without the need for them to give oral evidence.

Joint report by Dr Johnson Lam and Dr Lau Hoi Kuen

26.The plaintiff was examined by the experts on 11 March 2011, some 2 years and 2 months after the accident.  After the MRI was taken in May 2009, the plaintiff was advised to have surgery and informed of the risks involved but he decided against it.  He told the experts that he had been a container truck driver for over 20 years.  He used to drive cross border routes but changed to drive locally about 6 months before the accident, working 6 days a week and more than 10 hours a day.  He also complained of low back pain radiating to left buttock, postero-lateral thigh and calf, and occasionally involving the lateral half of foot and lateral 3 toes.  He said that the pain was there all the time and disturbed his sleep.  Walking for 100 metres increased the pain.  He could not carry any heavy bags. He had left leg weakness and frequent cramps in his left calf and soles.

27.Their physical examination revealed the following:-

(a) He sat normally and walked with normal gait slowly. He was able to walk on tiptoes and on heels; and he could perform unilateral standing. He was also able to squat about 2/3 of the range;

(b) Axial compression test produced increased back pain;

(c) Shoulder elevation test produced increased back pain;

(d) Pelvic rotation test produced increased back pain on left rotation only;

(e) There was tightness over the paraspinal muscle but there was no muscles spasm with tenderness noted over L4, L5 and S1 spinous processes but not over iliac crests and sacrum;

(f) Power of left hip was reduced at Grade -5;

(g) Power of left knee extension was reduced at Grade -5;

(h) Power of left ankle dorsiflexion and plantarflexion was  reduced  at Grade -5;

(i) 40% decrease sensation over postero-lateral calf and lateral part of sole; and

(j) Right calf girth 37.1 cm, left calf girth 36.5 cm (0.6 cm less);

28.X-rays of the lumbar spine revealed mild degenerative changes with marginal lipping at L2 and L3 vertebrae; slight decrease of the normal lumber lordosis; and that the L5/S1 disc space was decreased.  The experts reviewed the MRI of that lumbar spine taken on 26 May 2009 and confirmed that the MRI showed a degenerated L5/S1 intervertebral disc with large left posterolateral protrusion causing severe narrowing of the lateral recess and compression of the left exiting nerve roots. L4/5 and L3/4 were relatively normal.

Surveillance Evidence

29.Surveillance was conducted on the plaintiff between 9 November 2009 and 14 November 2009.  During surveillance, the plaintiff was seen walking in a normal way along Nathan Road and Mongkok area.  He walked normally and naturally and he was seen having raised his left hand to scratch his head occasionally.  He was able to step into a bus without any problem.  He could walk up and down staircases without having to hold onto handrails.

30.A second surveillance was conducted on the plaintiff between 7 November 2013 and 21 January 2014. During the surveillance, the plaintiff was again seen walking in a normal gait, able to climb up and down staircases without holding onto any handrails, bending his back inside a bakery shop to select a piece of bread for himself, bending his back inside a shop to select gifts, carrying a large plastic bag which at one time was slung over his shoulder, and taking public transport without any problems.

31.The surveillance video recordings taken on 12 and 13 November 2009 had been sent to the experts for their comment.  Dr Lam noted that the plaintiff’s gait was within normal limits but his pace was a bit slow for an adult man of his size and age.  On 12 November 2009, he was seen walking down stairs slowly and was overtaken by other pedestrians.  He also walked slowly upstairs. When walking upstairs the gait appeared to be more laborious.  On 13 November 2009, he was again noted to walk up and down stairs rather slowly.  The gait appeared laborious walking up stairs.  On 13 November 2009, he was seen putting his hand behind his back and appeared to give a pounding to the low back area, which suggested the presence of some back discomfort or pain, the pounding being a manoeuvre to ease that discomfort or pain.  His overall impression was that the plaintiff still had genuine pain in his low back.  Dr Lau commented that the plaintiff could walk on level ground as well as on stairs in a normal manner and pace and without any facial expression of having pain or discomfort.  He was not using or carrying a stick even when walking for a long distance.

32.My impression from the surveillance videos was that the plaintiff walked normally without exhibiting any pain or discomfort.  However, I observed that he walked quite slowly when he was walking up or down stairs.

The Orthopaedic Expert Opinion

33.The experts agreed that the injury was a contusion injury to the back.  This was consistent with the mechanism of injury described by the plaintiff.  There were mild degenerative changes noted on X-rays and the experts were agreed that such changes would take a long time to form and were likely to be pre-existing.  The clinical picture of back pain with radiation down the left lower limb was suggestive of disc prolapse with nerve compression. They agreed that this diagnosis was confirmed by the MRI of the lumbar spine taken about 6 months after the accident.

34.The major difference between the experts turned on the cause of the prolapsed disc with nerve compression.  Dr Lau opined that the severely degenerated L5/S1 disc with protrusion was related to ageing and his exposure to heavy manual exertion in the past and should have existed prior to the accident in December 2008.  Dr Lam disagreed. In his view, it was probable that there was some degeneration of the L5/S1 disc which is rather common in patients of the plaintiff's age.  However, such a large disc protrusion and extrusion with nerve compression was unlikely to be pre-existing and was very likely to have been caused or greatly aggravated by the accident.

35.Both experts were agreed that the plaintiff was not documented to have previous back pain or previous back injury.  Dr Lam opined that, based on the evidence available, it was likely that the degenerated L5/S1 disc was quite asymptomatic before the accident.  Dr Lau stated that with such severe degenerative changes in his low back, it was most unlikely that he was completely pain free in his lower back prior to the accident.  The accident could have caused precipitation or aggravation of his back and radicular pain.

36.Both experts agreed that it was reasonable for surgery to have been offered to the plaintiff and, given the risks involved, they respected his choice to decline the offer.  Dr Lam opined that the back was near to but had not reached maximal medical improvement, that surgery was a viable option, and that the plaintiff should be assessed 6-12 months after surgery; but that, if he opted not to have surgery, he should swim more frequently and undertake exercises to strengthen the back.  Dr Lau opined, based on the physical findings at the joint examination such as absence of muscle spasm, evidence  of exaggeration (referring to the increase in back pain on axial compression and other Waddell’s tests) and minimal  muscle wasting of muscle of the left calf (only 0.6 cm), that the condition of his lower back and left leg radicular pain had improved significantly after conservative treatment, as demonstrated by the surveillance evidence, and that there was no need to consider spinal surgery unless his condition deteriorated in future.

37.On the question of residual impairment, Dr Lam considered it was likely that the plaintiff had genuine pain and symptoms in the lower back and the left lower limb but that, given the physical findings and the positive Waddell’s tests, that the degree might not be as severe as the plaintiff claimed and was likely to be moderate only. Dr Lam accepted that the plaintiff had pre-existing degenerative changes in the lower back but he considered them to be mild and that that the plaintiff was free from significant back symptoms before the accident. Dr Lam apportioned 10% of his current disability as resulting from the pre-existing changes and 90% from the accident.  He referred to 3 possible future scenarios: going through life unaffected by symptoms; strong possibility of current symptoms occurring through some life event or progression of the back condition; and certainty of current symptoms manifesting in any event.  He considered that, but for the accident, the plaintiff might have gone through life without significant symptoms although there was a real likelihood that some future life event could bring on the current symptoms.  Presently, he could not undertake the work of a container truck driver but he could take on light work including driving vehicles with automatic gearboxes.  He considered that the sick leave granted to him up to 17 January 2011 was appropriate. 

38.Dr Lau opined that the degeneration and prolapse of the L5/S1 disc should be related to ageing and should have existed in the lower back before the accident.  He accepted that the plaintiff’s back condition should be listed between the 1^st and 2^nd scenarios because he had no past history of back pain and because his degenerative change was of a significant degree.  In Dr Lau’s view, the plaintiff would have increasing pain in his lower back in the years to come, as a result of physical stress at work and at home on the prolapsed disc.  The likelihood was that the back pain would stop him from continuing to work as a container truck driver within 10 years of the accident.  He would apportion 50% of the current impairment as caused by the accident.  He agreed that the plaintiff could not undertake the work of a container truck driver but he could take on light work including driving vehicles with automatic gearboxes.  However, given the surveillance video of November 2009, he considered that an appropriate period of sick leave was up to February 2010.

Findings on the plaintiff’s orthopaedic condition

39.There was much agreement between the experts.  The major difference between the experts turned on the extent of the pre-existing degenerative changes and whether or not the prolapsed disc was pre-existing or caused or greatly aggravated by the accident.  In this regard, I prefer the opinion of Dr Lam that such a large disc protrusion and extrusion with nerve compression was unlikely to be pre-existing.  The MRI of May 2009 showed a degenerated L5/S1 intervertebral disc with large left postero-lateral protrusion causing severe narrowing of the lateral recess and compression of the left exiting nerve roots.  Both experts accepted that the plaintiff did not have any history of back pain before this accident.  I accept the evidence of the plaintiff that he did not have any back injury or symptoms before the accident.  I find that it was most unlikely that such a large disc protrusion could have existed without causing symptoms.  I find that the large protrusion at L5/S1 causing severe narrowing of the lateral recess and compression of the left exiting nerve roots was caused by the accident.  He suffered from a pre-existing degenerated disc that has contributed to his present condition. I have noted and I prefer Dr. Lam’s views on this issue.  However, I always have regard to expert opinion on apportionment with some caution as the apportionment exercise cannot be performed scientifically but is a matter of judgment and impression.  I find that the accident was responsible for about 80 to 90% of the plaintiff’s condition from the time of the accident up to the present. 

40.Both experts were agreed that there was a significant degree of exaggeration by the plaintiff during the joint examination.  He also exaggerated his condition when he gave evidence before me by suggesting that the very large bag he was seen to be carrying in the surveillance video only weighed 1 pound, which I find to have been a gross underestimation on his part.  I prefer the evidence of Dr Lau that he has reached maximal medical improvement, does not need surgery, and that the condition of his lower back and left leg radicular pain has improved significantly after conservative treatment, as demonstrated by the surveillance evidence.  However, I do accept that his back condition will continue to have an impact on him and curtail his activities.  As I have already found, he is only able to climb up and down stairs slowly.  Indeed, both doctors are in agreement that he suffers from a 10% impairment of the whole person.  As I have just found, the accident was responsible for about 80 to 90% of his present condition.

Joint report by the psychiatric experts Dr Ronald Chen and Dr Peter Ho

41.The Plaintiff was examined by the psychiatric experts, Dr Ronald Chen nominated by the plaintiff and Dr Peter Ho nominated by the defendant, on 7 March 2013. He related the following history to the experts.  His mental symptoms started in around early 2010.  These included feeling that he wanted to cry, poor sleep and having dreams.  The pain had affected his sleep.  He slept better after taking hypnotics.  He would hear voices before sleeping.  He became irritable and often quarrelled with his wife, and he even hit his son.  His mood became depressed and his appetite had decreased at times.  His memory and concentration were impaired. He said that he had experienced suicidal thoughts before he received psychiatric treatment.  He occasionally experienced headache, muscle spasm and indigestion.  He had reduced social interaction. His psychiatric symptoms decreased after he received psychiatric treatment.  He had a 30 to 40% improvement in his anxiety and depression.

42.Dr Chen opined that the plaintiff was suffering from mixed anxiety and depressive disorder. He presented with both depressive and anxiety symptoms since the accident. However, it was not strong enough to fulfil the criteria of either major depressive disorder or anxiety disorder.  Dr Ho agreed with Dr Chen that the plaintiff had been suffering from mixed anxiety and depressive disorder.

43.Dr Chen opined that the perpetuating causes for his persistent mood symptoms could be attributed to the persistent physical symptoms and stress from the litigation process.  Dr Ho agreed and added that the wife's attitude towards the plaintiff’s disability was an aggravating factor.

44.As regards prognosis, Dr Chen stated that the plaintiff has mixed anxiety and depressive disorder with partial response to treatment for the past 3 to 4 years.  His persistent physical symptoms are very distressing to him but the prognosis was fair. When the litigation ended, the plaintiff would have less stress and his mood was expected to improve.  Dr Ho opined that the plaintiff still had minor to mild anxiety and depressive symptoms, but he did not appear to be very distressed by his persistent physical symptoms during the interview.  In Dr Ho’s opinion, the prognosis was fair to favourable by reason of the reported improvement in the physical and mental condition.  Both experts agreed[2] that he would benefit from another year of psychiatric treatment and psychological counselling (i.e. up to March 2014). 

45.Dr Chen was of the view that the plaintiff would not be able to work in the open market for at least another year, i.e. not until March 2014. This is considerably longer than the sick leave granted to him for his physical disabilities which was granted to him up to 17 January 2011.  Dr Ho was of the view that his minor to mild residual anxiety and depressive symptoms after treatment would not significantly affect his working capacity as a driver and he considered that a sick leave period of 2 to 3 months after he started to receive psychiatric treatment was reasonable.  He was first seen at the East Kowloon Psychiatric Centre on 10 December 2009 and a sick leave period of 3 months thereafter brings one to February 2010, which dovetails with the opinion of Dr Lau that he could return to work after February 2010.

46.As regards impairment of the whole person from the psychiatric condition, Dr Chen assessed it at 10% while Dr Ho assessed it 5%, for the reasons they had expressed which I have summarised above.

Findings on the plaintiff’s psychiatric condition

47.The plaintiff did not exhibit any signs of anxiety or depression when he gave evidence before me.  I do, however, accept the joint opinion of the experts that he has been suffering from mixed anxiety and depressive disorder.  I accept that this was caused by the persistent physical symptoms and stress from the litigation process, and aggravated by wife's attitude towards his disability, and further aggravated by their subsequent divorce.  The difference of opinion between the experts is minor.  2 years have passed since their joint examination and I am satisfied that he now only suffers from minor residual symptoms of anxiety and depression.  I prefer Dr Ho’s opinion on his prognosis and current impairment.

Damages for PSLA

48.The plaintiff’s physical injuries and disability fall within the Serious Injury category for which awards for PSLA currently start at $510,000[3].  This must be discounted on account of the contribution made by his pre-existing condition.  As against that, the plaintiff has suffered mixed anxiety and depressive disorder with partial response to treatment for a number of years.  Thankfully, he now only suffers from minor residual symptoms of anxiety and depression.  Guided by the authorities cited to me, I award damages for PSLA in the present case in the sum of $500,000.  My award in Chan Yuet Keung v. Harmony (International) Knitting Factory Ltd. [2010] 5 HKLRD 599, 2 November 2010, is not a good comparable: the plaintiff’s back injury in that case was less serious than the present case and he did not suffer from any psychiatric condition. Further, there has been rising inflation in the recent few years since my award in that case.

Loss of Earnings

49.I accept the evidence of the plaintiff that he started working as a driver from around 1980 and that, by 1988, he had changed jobs to work as a container truck driver, which he did for the next 20 years until the time of the accident in 2008.  For a considerable period of time, he owned his container tractor and was self-employed as a cross-border container truck driver.  In 2005, he sold his container tractor to a firm called Sunderful Forwarding Company (“Sunderful”), and was employed by them to work as a cross-border container truck driver.  He worked for that firm until the end of July 2008 and, when he ceased his employment, he had to return his cross-border entry permit to the PRC authorities for cancellation as that permit only allowed him to drive the named container tractor that was owned by Sunderful.  His average monthly earnings in 2007 were $20,400 and his average monthly earnings in 2008 were $22,358.  He started to work as a local container truck driver for the defendant from 21 August 2008 and worked until the accident occurred on 30 December 2008.  It is no longer disputed that his average monthly earnings, as a local container truck driver employed by the defendant, were $15,069.28.  For the purpose of this assessment, I will round that amount up to $15,070.

50.Both doctors agreed that the plaintiff could not return to work as a container truck driver after the accident.  I prefer the evidence of Dr Lau, who had regard to his findings in the joint examination, and also had the benefit of the surveillance video of November 2009, and formed the opinion that the plaintiff ought to have been able to return to some form of light work after February 2010, including driving vehicles with automatic gearboxes.  Dr Lam also accepted that he could perform such work but that he could only do so after his sick leave expired in 2011. 

51.Although I have found that he could return to some light work after February 2010, I do accept that the condition of his lower back would curtail his working ability even performing light work.  For example, he would not be able to drive for long periods of time, or perform work which required prolonged standing or walking.  Given his limitations, he would also require a reasonable period of time to look for suitable employment.  The concession made by the defendant of an additional 4 months, from March to June 2010, for him to do so is reasonable. Accordingly, I award damages for full loss of earnings from January 2009 to June 2010, a period of 18 months.  I also award loss of MPF benefits during this period.

52.The plaintiff framed his case for damages for loss of earnings on the basis of the notional earnings as a cross-border container truck driver and presented his claim on the basis that the earnings of his friend, Mr Chan Kwok Man, who was a cross-border container truck driver and who gave evidence before me, was a good comparable to use to assess his claim for loss of earnings.  The defendant contested this claim and also challenged the plaintiff’s assertion that he had worked for the defendant as a local container truck driver only as a transitional arrangement until his old cross-border entry permit could be cancelled and until the issuance of a new cross-border entry permit.  Another issue in dispute between the parties is the plaintiff’s likely age of retirement as a container truck driver if the accident had not occurred.

53.A cross-border container truck driver is likely to earn more than a local container truck driver for the reason that he is likely to go for longer trips and be on the road for a greater period of time. This is brought out by the plaintiff’s own average monthly earnings as a cross-border container truck driver in the sum of $22,358 for the year ending June 2008.  His average monthly earnings as a local container truck driver employed by the defendant were just over $15,000.  Clearly, drivers who work longer hours will earn more, be they working as local or cross-border container truck drivers. This is amply demonstrated by the evidence of Mr Chan Kwok Man, which I accept, namely, that his average monthly earnings as a cross-border container truck driver for the period from April 2008 to June 2008 were $34,030[4].  The plaintiff who had also worked as a cross-border container truck driver only earned an average of $22,358 a month for the year ending June 2008[5].  The difference cannot be accounted for simply from the fact that the former earnings are the average of 3 months’ earnings and the latter earnings are the average of 11 months’ earnings[6].  Clearly, Mr Chan was earning more than the plaintiff.  I am unable to use his earnings as a comparable to assess the notional earnings of the plaintiff as a cross-border container truck driver. 

54.I had hoped that the statistics that I had asked the parties to obtain from the Census and Statistics Department, on the earnings of cross-border and local container truck drivers, would assist me to resolve the issue.  Unfortunately, it appears that their statistics covered both local and cross-border container truck drivers and did not differentiate between the two.  Further, the average earnings of container truck drivers for the relevant periods, as shown on the statistics, were considerably less than the earnings of the plaintiff and Mr Chan, as demonstrated by the following table:

Year	Average Monthly Earnings
2008	$14,356[7]
2009	$12,650 ($506 x 25 days)
2010	$12,096 ($504 x 24 days)
2011	$13,525 ($541 x 25 days)
2012	$16,692 ($642 x 26 days)
2013	$17,082 ($657 x 26 days)[8]
2014	$18,070 ($695 x 26 days)[9]

55.Nevertheless, the statistics are helpful to understand that the average monthly earnings went down in the year 2010, before they recovered in the year 2011.  Mr Chan also suffered a reduction of his average monthly earnings for the financial year from April 2009 to March 2010[10], which were less than his earnings in the previous year[11].  It was his evidence that he maintained his earnings at about $30,000 per month from April 2010 to the present time.      

56.Mr Chan changed employment to become a cross-container truck driver in 2003 when it took him 3 months to obtain a cross-border entry permit to enable him to work for his employer; and he changed employment in 2006, when it took him 2 months to obtain a new cross-border entry permit to enable him to work for his new employer.  At §59 of his first witness statement, the plaintiff said that he had worked for the defendant as a local container truck driver as a transitional arrangement pending the cancellation procedure of his cross-border entry permit, and he estimated that the cancellation procedure and the issuance of a new cross border entry permit to him would have been completed sometime between early 2009 and mid-2009. That statement was made on 18 December 2012.  In §24 of his supplemental witness statement made a year later on 31 December 2013, he said that the cancellation process had been completed in mid-November 2008.  He then went on to explain that he had planned to look for a job as a cross-border container truck driver, but that, as the economic condition was not good owing to the financial crisis that had occurred, he had thought that he would need half a year to find such work. 

57.The two versions are clearly inconsistent, and make me doubt whether or not he had intended to return to work as a cross-border container truck driver in mid-2009, as he claimed.  Clearly that work was much more arduous, as he himself had stated in §26 of his supplemental statement, with drivers often being required to drive for 24 hours.  I also have regard to the medical evidence in respect of the pre-existing degenerative condition of his lower back.  Although I have found that he was asymptomatic prior to the accident, he must have felt fatigue and discomfort in his lower back after driving for long periods of time as a cross-border container truck driver. Taking all these matters into account, including his inaction in looking for work as a cross-border container truck driver, after his previous cross-border entry permit had been cancelled, I conclude I am not satisfied on a balance of probabilities that the plaintiff would have returned to work as cross-border container truck driver in mid-2009 if the accident had not occurred.  However, I do not go on to find that he would not have returned to such work at some time in the future.  Indeed, I find that he would have gone back to working as a cross-border container truck driver but that, as the years passed, that he would have worked more as a local container truck driver than as a cross-border container truck driver.  I make a corresponding finding that, but for the accident, he would have worked two thirds of the pre-trial period as a cross-border container truck driver and one-third of the pre-trial period as a local container truck driver; and, further, that he would have worked one-third of the post-trial period, prior to his notional retirement, as a cross-border container truck driver and two-thirds of that post-trial period as a local container truck driver.

58.If there had been no changes in the economic condition and no inflation in the period from 2008 up to the present, the plaintiff’s notional monthly earnings as a container truck driver could be assessed in the sum of $19,929 {($15,070 + $22,358 + $22,358) /3} for the pre-trial period and in the sum of $17,499 {($15,070 + $15,070 + $22,358) /3)} for the post-trial period.  The best evidence I have to track the effect of economic conditions and inflation on the earnings of container truck drivers from 2008 to the present is contained in the statistics from the Census and Statistics Department.  As can be seen from the statistics, the average monthly earnings of container truck drivers in 2008 were $14,356[12]. The latest statistics show that the average monthly earnings in 2014[13] were $18,337, an increase of 28% of the average monthly earnings of container truck drivers of $14,356 in 2008.  Applying the same percentage increase to the earnings of the plaintiff in 2008 produces post-trial notional monthly earnings as a container truck driver of $22,400 {($15,070 x 128% + $15,070 x 128% + $22,358 x 128%) /3}.  The median pre-trial notional monthly earnings as a container truck driver can be obtained by taking an average of the figures set out in the table in §54 above. This comes to $14,924 {($14,356 + $12,650 + $12,096 + $13,525 + $16,692 + $17,082 + $18,070) /7}, an increase of just under 4% of the earnings of $14,356 in 2008, which is a reflection of the economic downturn during the years from 2009 to 2011.  Applying the same percentage increase to the earnings of the plaintiff in 2008 provides median pre-trial notional monthly earnings as a container truck driver in the sum of $20,726 {($15,070 x 104% + $22,358 x 104% + $22,358 x 104%) /3}

59.On the above basis, I award pre-trial full loss of earnings and loss of MPF benefits for the period of 18 months from January 2009 to June 2010 in the sum of $391,068 ($20,726 x 18 months + loss of MPF benefits: $20,000[14] x 5% x 18 months).

60.The defendant has conceded that partial pre-trial loss of earnings should be awarded from July 2010 up to the date of judgment by deducting average monthly earnings of $9,000 which the plaintiff could earn from that time performing light work.  In the absence of evidence to substantiate the amount of $9,000, I can do no better than make an award based on the concession on behalf of the plaintiff that he could earn $8,000 per month performing light work.  Accordingly, I award pre-trial partial loss of earnings and loss of MPF benefits for the period of 60.5 months from July 2010 to mid-July 2015 in the sum of $808,419 {($20,726 - $8,000) x 105% x 60.5 months}.

61.My award for future loss of earnings depends on my whether or not I find that he would have worked as container truck driver up to the age of 65, as asserted on behalf of the plaintiff.  Clearly, working as a local container truck driver, which was less arduous than the work of a cross border container truck driver, would enable the plaintiff to prolong his working life and delay the onset of symptoms from the degenerative condition of his lower back, assuming, of course, that the accident had not occurred.  Even so, given the near agreement between the experts that the plaintiff fell in between scenarios 1 and 2[15], I am unable to find that the plaintiff would have worked as container truck driver up to the age of 65.  However, I am not as pessimistic about his ability to work as Dr Lau who was of the opinion that he would have stopped working as such by 2018, 10 years after the accident.  Based on my findings that the extent of the degeneration was not as severe as Dr Lau thought it was, and that it was likely that the plaintiff would work more as a local driver as the years passed, I would award future partial loss of earnings and loss of MPF benefits to the plaintiff up to age 62[16].  The plaintiff is now 52 and a half years’ years old.  The Chan Tables[17] do not include a table of multipliers for loss of earnings to age 62.  Based on a discount rate of 1%, the multiplier for a 50 year old male suffering a 10 year future loss of earnings to notional retirement age 60 is 9.36[18], the multiplier for a 55 year old male suffering a 10-year future loss of earnings to notional retirement age 65 is 9.27[19], and the multiplier for a term certain of 10 years is 9.52[20].  The latter multiplier does not contain any discount for the possibility of earlier death.  In the present case, I assess the multiplier at 9.315 (9.36 + 9.27/2) to produce an award of future partial loss of earnings and loss of MPF benefits in the sum of $1,690,114 {($22,400[21] - $8,000) x 12 months x 105% x 9.315}.

62.The above awards are premised upon the plaintiff being able to earn $8,000 per month from July 2010 to July 2015, a continuous period of 15 years. Given the residual disability that he suffers from, it is likely that the condition of his lower back will from time to time give rise to symptoms which would prevent him from performing even light work.  I award $100,000 as general damages for loss of earning capacity on the basis that he would out of work on account of the condition of his lower back for periods of between 2 weeks to a month every year over the course of those 15 years.

Special Damages

63.I am satisfied that the expenses claimed have been reasonably incurred and I award the sum of $18,500 as special damages for pre-trial hospital and medical expenses, travelling expenses, and tonic food.

Future medical expenses

64.If a plaintiff evinces a genuine intention to seek treatment from private doctors or from a private clinic or hospital, the court should award damages based on the cost of such treatment, unless there was good reason why he or she should obtain the reasonably needed treatment from the Hospital Authority.  A good reason could include the unavailability of the needed treatment in the private sector.  Another good reason could be the successful treatment received by the plaintiff in the past from the Hospital Authority which it would be beneficial for him to continue to receive; for example, a good rapport established with a treating psychiatrist at a facility run by the Hospital Authority ought to be continued.  Absent good reason, the court should not transfer the liability of the tortfeasor to pay for such treatment onto the shoulders of the Hospital Authority which is already over burdened by the huge and ever growing demand for its services by the citizens of our good city.  Indeed, the long period of time it would take to obtain the needed treatment from the Hospital Authority is a good reason to award damages based on the cost of the needed treatment in the private sector.  Provided that the treatment is reasonably needed, the plaintiff’s choice to seek such treatment in the private sector cannot be equated with a failure on his part to mitigate his loss by seeking the needed treatment from the Hospital Authority.  The English Court of Appeal in Peters v. East Midlands Strategic Health Authority[22] decided that no question of mitigation of loss arose from the plaintiff’s decision not to rely upon medical services provided by a public authority.  Dyson L.J., as he then was, giving the judgment of the Court, stated[23] by way of conclusion:

“We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right.”

65.In this case, I am unable to find any reference in the witness statements of the plaintiff to the psychiatric and psychological treatment recommended to him by the psychiatric experts other than a statement in §48 of his first statement that the psychiatric experts were going to conduct a joint examination of him.  Nor was any mention made in his oral evidence of the psychiatric and psychological treatment recommendations that the experts had made.  The plaintiff did not exhibit any signs of anxiety or depression when he gave evidence before me and I have found that he now only suffers from minor residual symptoms of anxiety and depression.   More than 2 years have passed since the time when the joint report of the psychiatric experts was prepared. Although they both agreed in March 2013 that he would benefit from a years’ psychiatric and psychological treatment, I do not have any evidence as to whether or not the plaintiff continued with any such treatment after March 2013.  Notwithstanding the views of the psychiatric experts on this issue in March 2013, I am not satisfied that the plaintiff would need to undergo any further psychiatric treatment at the present time, particularly with the conclusion of these proceedings which would bring an end to any stress arising from the litigation process.  I decline to make an award under this head of claim.

Interest

66.In addition, I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgment. I also award interest on pre-trial loss of earnings and MPF benefits and other special damages at the rate of 4% per annum from the date of the accident to the date of payment of employees’ compensation and, thereafter, at the same rate up to date of judgment on any remaining balance of such damages after the deduction of the amount of employees’ compensation from those damages. No interest is payable on damages for loss of earning capacity even though a part of that award is being made in respect of pre-trial loss.

Summary and costs

67.A summary of my award is follows:

PSLA	$500,000
Pre-trial Full Loss of Earnings & MPF Benefits	$391,068
Pre-trial Partial Loss of Earnings & MPF Benefits	$808,419
Future Partial Loss of Earnings & MPF Benefits	$1,690,114
Loss of Earning Capacity	$100,000
Special Damages	$18,500
Future Medical Expenses	Nil
Sub-total:	$3,508,101
Less 25% on account of contributory negligence	$2,631,076
Less: Employees’ Compensation	$697,272
Net award:	$1,933,804

68.I make a costs order nisi that the defendant pays the costs of this action to the plaintiff to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Mr Patrick Lim, instructed by Liu, Chan & Lam, for the plaintiff

Ms Julia Lau, instructed by Winnie Mak, Chan & Yeung, for the defendant