THAPA GOMA v. TINA GLOBAL (HK) LTD AND ANOTHER

HCPI 810/2015

[2019] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 810 OF 2015

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J U D G M E N T

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I. BACKGROUND

1.  The plaintiff (“P”) was a construction site general worker. P claimed that at all material times she was employed by the 1^st defendant (“D1”) and/or 2^nd defendant (“D2”), and averred that (a) her mandatory provident fund (“MPF”) contributions were managed and/or paid by D1, (b) D1 had control over her and was responsible for delegating/arranging for her to work for D2, and (c) her work attendance record at RMD Hung Siu Kui Yard, Yuen Long, Hong Hong (“Site”) was maintained/managed and signed by both D1 and D2.

2.  P claimed (but D1 did not admit) (a) D2 was the main/principal contractor of the construction works at the Site, and/or (b) the Site was a construction site within the meaning of the Construction Sites (Safety) Regulations Cap 59I and a workplace defined by the Occupational Safety and Health Ordinance Cap 509 (“OSHO”).

II.  P’s CLAIM

3.  P claimed that on 7 November 2012 and in the course of her employment with D1 and/or D2 she was assigned to work at the Site and instructed to move a long and heavy square-shaped metal tube (“Metal Tube”), and in the course of handling the Metal Tube she suddenly sprained her back and suffered back injury (“Accident”).

4.  P further claimed (a) the Accident was caused by the negligence,[1] breach of common duty of care, breach of statutory duties,[2] breach of contract of employment and/or breach of duty as occupier of the Site by inter alia D1 and/or its servants/agents, and (b) D1 was vicariously liable for the negligence of its servants, employees and agents. In short, P averred inter alia that D1 as P’s employer failed to supervise P’s work procedure, failed to provide sufficient training to P and/or failed to provide sufficient manpower, supervision and/or tools. P also relied on the doctrine of res ipsa loquitur to establish the Accident and P’s injuries were caused by inter alia D1’s breach of its duties of care.

III.  D1’s DEFENCE

5.  D1 denied liability. D1 disagreed it employed P in any capacity, and put P to proof as to (a) D2’s status in relation to construction works at the Site and (b) the circumstances of the alleged Accident. D1 averred that at all material times (i) P was employed by D2, and (ii) D1 was/is an independent service contractor engaged by D2 to provide human resources referral service for D2. D1 also denied it was vicariously liable for the negligence of its servants, employees and/or agents, and disagreed that the doctrine of res ipsa loquitur was applicable.

6.  D1’s Defence filed on 27 October 2015 pleaded that (a) P approached D1 for a job so D1 referred her to D2, (b) P agreed to work for D2 who agreed to engage her, (c) at all material times D1 and/or its servants, employees, staff, agents and/or representatives were/are (i) not authorised by D1 or anyone to enter the Site, (ii) not authorised by D2 or anyone to take part in D2’s work at the Site and/or (iii) not in possession, custody and control of the Site, and (d) none of D1’s servants, employees, staff and/or agents worked at the Site.

7.  D1 also denied it owed P any alleged duty of care and/or any alleged statutory duty under OSHO, Occupational Safety and Health Regulation Cap 509A (“OSHR”) and/or Factories and Industrial Undertakings Ordinance Cap 59, and consequently P was not entitled to claim against D1 for personal injuries she sustained (which D1 denied) and for loss/damage allegedly suffered as a result of alleged negligence and/or breach of statutory and/or other duties by D1 (which D1 denied).

8.  But if it were found that the Accident occurred as P alleged (which D1 denied), D1 averred it was caused and/or contributed by the negligence or contributory negligence on the part of P,[3] and/or by the negligence, breach of duty of care and/or breach of statutory duties on the part of D2 and/or its servants, employees, staff, agents and/or representatives.[4]

IV.  PROCEDURAL MATTERS

9.  On 28 October 2015, D2 filed its Defence denying liability and disputing quantum. At that stage, D1 and D2 had separate legal representation.

10.  On 19 January 2016, Master Roy Yu granted directions that expert medical evidence as to quantum shall be limited to 1 orthopaedic expert for each party, Dr Law Yee Cheong Wally (“Dr Law”) for P, Dr Kong Kam Fu James (“Dr Kong”) for D1 and Dr Chow Hung Tsan (“Dr Chow”) for D2 (collectively, “Experts”). On 29 September 2016, Master Roy Yu directed that the joint orthopaedic expert report dated 3 March 2016 by the Experts (“1^st Jt Report”) shall be adduced at trial without calling the makers to give oral evidence.

11.  At the pre-trial review on 6 February 2018 (“1^st PTR”), I gave directions for the parties to obtain a supplemental joint orthopaedic expert report to address outstanding expert issues, and for D2 to disclose/discover documents that would evidence the earnings of 2 comparable workers working in similar position and/or having similar job nature as that of P at the time of the Accident for the period from 7 November 2012 to date (if any). I also granted other case management directions in preparation for the trial. In view of the orthopaedic expert opinion expressed in the 1^st Jt Report but subject to the supplemental opinion to be given in the supplemental joint orthopaedic expert report to be obtained, I indicated it was likely that the Experts would have to give oral evidence at the trial.

12.  On 20 February 2018, pursuant to the order made at 1^st PTR, D2 disclosed/discovered certain document in relation to wages/salaries of P’s comparable worker.

13.  On 3 April 2018, the Experts completed their supplemental joint orthopaedic expert report (“2^nd Jt Report”). There was a flurry of inter-solicitors’ correspondence on availability of the Experts to attend the trial (scheduled to commence on 7 May 2018) to give oral evidence. At the 2^nd pre-trial review on 12 April 2018 (“2^nd PTR”), I granted further case management directions in preparation for the trial, and directed the parties to cause the Experts to attend the trial to give oral evidence.

14.  On 17 April 2018, D1’s solicitors Francis Kong & Co (“FKC”) applied by summons to cease to act for D1, and such summons was returnable before this court on 30 April 2018 (“1^st Cease Act Summons”). In the meantime, as FKC had no further instructions from D1, they were unable to confirm to P’s and D2’s solicitors (a) which specific trial dates would suit the Experts to attend court to give oral evidence and/or (b) the contents of the joint time estimates for the trial. On 25 April 2018, this court granted written case management directions in relation to such matters.

15.  On 27 April 2018, D2 filed a Notice of Contribution against D1 (“Contribution Notice”). On 30 April 2018, this court made written observations to the parties that as yet no directions had been given (a) for pleadings and necessary case management in respect of such contribution proceedings, and (b) for the contribution proceedings to be heard at the same time as the trial of the main action.

16.  At the hearing of the 1^st Cease Act Summons on 30 April 2018, this court discovered that quite strangely FKC did not serve such summons on D1, so I granted an order that FKC’s application be turned into an inter partes one between FKC and D1. On the same day, FKC filed an inter partes summons to apply to cease to act for D1, and such summons was returnable on 7 May 2018 just before commencement of the 1^st day of trial (“2^nd Cease Act Summons”). After hearing submissions from FKC’s solicitor Mr Lam Hing Cheung and D1’s director Mr Rana Ray (“Ray”), I granted an order that upon compliance with the requirements of Order 67 rule 6(1) of the Rules of the High Court (“RHC”), FKC shall cease to be solicitors acting for D1 in the present action with no order as to costs.

17.  As a result, FKC no longer had any instructions from D1 to actively represent D1 at the trial. In any event, no counsel was instructed by FKC to appear on behalf of D1, and Mr Lam Hing Cheung had no right of audience at the trial. Further, D1 had not applied to the Registrar for leave to be represented by one of its directors under Order 12 rule 1(2A) of the RHC. So when the trial commenced on 7 May 2018, D1 and/or FKC could not take any further step at the trial (see Order 12 rule 1(2) of the RHC).

18.  On 7 May 2018, P and D2 reached a settlement agreement over P’s claim against D2 whereby on without prejudice basis D2 would pay a settlement sum to P via the Director of Legal Aid (“DLA”). Then, upon joint application by P (via her counsel Mr Leung) and D2 (via its counsel Mr Lau), I granted leave for P to discontinue her claim against D2 in the present action with no order as to costs, and for D2 to withdraw the Contribution Notice against D1 with no order as to costs. On such basis, D2 was excused from further attendance at the trial.

19.  In the meantime, on 2 May 2018, P filed a summons for leave to (a) amend the Revised Statement of Damages (“RSoD”) and (b) file the Re-Revised Statement of Damages in the manner marked in red as per the draft annexed to such summons. On 7 May 2018, after hearing submissions from Mr Leung but not from Mr Lam Hing Cheung and/or Ray, I granted leave for P to amend the RSoD and to file the Re-Revised Statement of Damages on or before 4:30pm that day, and directed P to serve on D1 the Re-Revised Statement of Damages (accompanied by its statement of truth) and also written notice of the orders made that day. I further adjourned the trial to 9 May 2018, and granted leave for D1 to file/serve its Amended Answer to the Re-Revised Statement of Damages on or before 10:00am on 9 May 2018. The purpose of such adjournment was to give an opportunity for D1 (if it wished) to apply to and obtain from the Registrar an order under Order 12 rule 1(2A) of the RHC for self-representation by its director or to arrange alternative legal representation, and if successful with such application or arrangement to file/serve its Amended Answer to P’s Re-Revised Statement of Damages. P filed her Re-Revised Statement of Damages (“RRSoD”) on 7 May 2018 at 4:50pm.

20.  At 3:35pm on 8 May 2018, FKC filed the certificate under Order 67 rule 6(1)(c) of the RHC, and ceased to be solicitors on the record for D1. From the above account, FKC remained as solicitors on the record for D1 for the 1^st day of trial (7 May 2018).

21.  Turning to the 2^nd day of trial on 9 May 2018, D1 appeared by its counsel Mr Lam on instructions of fresh solicitors for D1 being Mohnani & Associates (“M&A”), who undertook to file and did file Notice to Act on behalf of D1 on or before 4:30pm that day. Mr Lam informed this court he only had limited instructions on behalf of D1 to apply for an adjournment of the trial. Mr Leung opposed such application. After hearing submissions from Mr Lam and Mr Leung, I dismissed D1’s application for adjournment of the trial and delivered oral reasons.

22.  Mr Lam then advised this court that M&A would forthwith make oral application to cease to act for D1 in the present action. As I was the trial judge in the main action between P and D1, I was concerned that I should not hear submissions in relation to such application from D1 and/or M&A that might prejudice my function as the trial judge, especially when I declined to adjourn the trial. Upon being assured the relevant submissions would not raise such concern, P and her legal representatives were excused and M&A’s solicitor Mr Mohnani orally applied to cease to act for D1 in the present action. After hearing submissions from M&A’s Mr Mohnani and D1’s director Ray, I granted an order that upon compliance with the requirements of Order 67 rule 6(1) of the RHC M&A shall cease to be solicitors acting for D1 in the present action, and I further granted leave for Mr Lam to withdraw from representation of D1 in the present action. On such basis, M&A would remain as solicitors on the record for D1 until they complied with the requirements under Order 67 rule 6(1) of the RHC.

23.  On such basis, I declined to excuse M&A’s presence at the trial. Pursuant to their undertaking, M&A filed their Notice to Act on behalf of D1 at 2:35pm on 9 May 2018. They remained as solicitors on the record for D1 for the 2^nd day of the trial (ie 9 May 2018) because the trial had finished at 3:05pm before they filed the certificate under Order 67 rule 6(1)(c) of the RHC at 4:17pm. I further note D1 had not obtained any order under Order 12 rule 1(2A) of the RHC to be represented by its director Ray. Thus, D1 was legally represented on both days of the trial.

24.  At the trial, P as witness gave oral evidence, and adopted her witness statement as to fact filed on 9 January 2016. P was the only witness, and she did not call Thapa Pushpa to give evidence on her behalf although Thapa Pushpa’s witness statement as to fact was filed on 2 April 2016. D1 did not adduce any factual witness evidence.

25.  P was born in Nepal on 10 March 1967 (ie 45 years old at the time of the Accident). She came to Hong Kong in 2004 and spoke Nepali. Although the present action had been set down for trial a long time ago for the trial to commence on 7 May 2018, P’s solicitors only wrote to the court on 3 May 2018 (ie 2 working days before the trial) to request arrangement of a Nepali interpreter to provide translation service at the trial. Quite unsurprisingly, the Court Translation Section was unable to arrange a freelance Nepali interpreter in view of the shortness of time.

26.  P’s solicitors then arranged for a freelance interpreter Ms Rai Pabitra (“Pabitra”) to act as Nepali-English interpreter at the trial. Pabrita was not amongst the named interpreters who performed Nepali-English translation for P in relation to P’s pleadings, P’s witness statement and/or Thapa Pushpa’s witness statement. Upon enquiry made to the Court Translation Section by my clerk, it appeared Pabitra was a freelance Nepali-English interpreter with active status on the panel maintained by the Court Translation Office, and she had provided such translation service at inter alia magistrates’ courts and District Court. Pabitra confirmed on affirmation she (a) had never met P prior to attending court on 9 May 2018 at the request of P’s solicitors to provide Nepali-English translation service, and (b) had never been involved with and/or provided translation service for P in relation to the present action or otherwise. Pabitra also signed a declaration of no conflict of interest at the trial on 9 May 2018.

27.  On such basis, Pabitra was allowed to perform Nepali-English translation service at the trial. Fortunately, the trial between P and D1 required minimal translation with little risk posed by translation service not arranged via the Court Translation Service. But I hasten to point out such situation was less than satisfactory, and I take this opportunity to remind practitioners to submit prompt/timely administrative request to the court to arrange for provision of translation service as lead time is required for the Court Translation Service to arrange such service by freelance interpreters for languages/dialects not usually provided in-house. In future, it is unlikely that the court will smile kindly on belated request leading to non-availability of court-arranged translation service, and any grave costs consequences of aborting a trial for such reason may not necessarily fall on the relevant lay party. The court is jealous to ensure necessary translation service (especially in a language that the court does not understand) is and is seen to be independent and non-partisan.

28.  Turning to the orthopaedic expert evidence, since (a) M&A had no further instructions from D1 who was not self-represented by its director at the time, and (b) D2 had already settled with P, D1 and D2 did not adduce orthopaedic expert opinion from Drs Kong and Chow. So on 9 May 2018 I asked P to prepare redacted versions of the 1^st/2^nd Jt Reports to exclude the orthopaedic expert opinion by Drs Kong and Chow therein. The trial was stood down to the afternoon for P to prepare/submit such redacted versions of the 1^st/2^nd Jt Reports, which exercise was to transform the 1^st/2^nd Jt Reports into solo orthoapedic expert reports dated 3 March 2016 and 3 April 2018 by Dr Law (“1^st and 2^nd Reports”). When the trial resumed in the afternoon, I granted leave for P to adduce the 1^st and 2^nd Reports (exhibit P-1) as orthopaedic expert evidence as to quantum without having to call Dr Law to give oral evidence at the trial.

V.  LIABILITY

29.  Work history  P did not receive any education. She was married, and lived with her husband, her 3 children and her mother-in-law in Hong Kong since 2004. She worked as a labourer (according to P) or construction site worker (according to the 1^st Report) since she came to Hong Kong up to the time of the Accident.

30.  Employer  P said D2 was the principal/main contractor of the construction works at the Site, and D1 was a labour supplier who assigned/arranged for her to work for D2 at the Site. P claimed that at the material time D1 and/or D2 employed her as a general worker. In the Form 2 and Information Amendment Sheet (date redacted) submitted by D1 to the Labour Department, D1 was named as P’s employer whose business was described as “human resource trading”, D2 was named as the principal contractor, and the Site was described as D2’s storage yard.

31.  Pursuant to a site meeting on 19 October 2012 between D2’s operation manager Mr Frankie Chi (“Chi”) and D1’s Ray, D2’s S K Wong emailed D1’s Ray as follows: “As discussed, pls quote the labour, both male and female. The location is our Yuen Long yard, not construction site”. On 22 October 2012, D1’s Ray emailed for Chi’s consideration an attached written quotation that gave the rate per man-day (male general worker at $660.00 for 9 hours and $80.00/hour for overtime, and female general worker at $580.00 for 9 hours and $80.00/hour for overtime). On the same day, Chi and Ray had a telephone conversation, which was followed by Chi’s email to Ray requesting Ray to send him the terms and conditions of the aforesaid quotation and to provide 30 workers that Wednesday (ie a few days later on 24 October 2012) for the Site, ie “our Yuen Long yard”. On 25 October 2012, D1’s Ray replied to D2’s Chi by email as follows:

“I have visit your site this morning with new worker I fully hope that we will train today with existing worker then mixed up with old and new. Also my advice Please provide one monitor person to follow up every work and explain how to handle and educated about RMD material. To create good team please don’t let work too many people together must be separate two female one male etc. i fully ghope that we will catch up the programme. For your reference please find the attached terms and conditions as we discussed.”

The terms and conditions attached to such email (“T&C”) were inter alia as follows:

(a)	“Normal Attendant will calculate 9Hrs which is 0800 – 1800.”
(b)	“Work carried on Sunday’s Public holidays will calculate 1.5% of Daily Wages.”
(c)	“Night Shift Allowance will be $150 Per Night.”
(d)	“Typhoon occurring after 12:00 – Full payment and before 12:00 – 40% of daily wage”
(e)	“Statutory holiday after three month provided by [D2]”
(f)	“One week advance notice or in lieu pay by both party after successful employment of 90 days.”
(g)	“Workmen’s compensation insurance, to be provided by [D2].”[5]
(h)	“[MPF] will manage by [D1].”
(i)	“on site Induction and Other Course will calculate Normal Attendant.”
(j)	“Transportation shuttle bus to be provided by [D2] according site access.”
(k)	“PPE: such as safety Helmet, Reflective Vest and Safety shoes provided by [D2].”
(l)	“Work should start once accept the Quotation. Work order should issue to [D1].”
(m)	“Payment should make in full without retention to [D1] within 7 Days from invoice date. Invoice will be placed twice a month.”

32.  Quite clearly, D1 by its Form 2 admitted it was P’s employer. This was in fact borne out by the arrangements between D1 and D2 as explained in the above paragraph. First, the quoted daily rate of female general worker was $580.00 with overtime at $80.00/hour. But as seen from the Form 2 submitted by D1 to the Labour Department, P was paid basic salary of $320.00/day and allowance of $150.00/day (which coincided with the night shift allowance at paragraph 31(c) above) totalling $470.00/day. Since D2 paid the salaries/allowances of female general workers recruited by D1 (including P) for D2 at $580.00 and $150.00 per day, and D1 paid P salary/allowance at $320.00 and $150.00 per day, D1 as labour supplier made a profit of $260.00/day by engaging P and deploying her to work for D2 at the Site, and in my view D1 realised such profit as employer of P.

33.  Secondly, according to the T&C for the supply of general workers by D1 to D2, notwithstanding D2 was responsible for the matters in paragraph 31(e), (g), (j) and (k) above, which matters were associated with work activities at the Site being D2’s storage yard, D1 was responsible for employment-related matters : (a) once D2 committed to D1’s quotation for sourcing general workers for D2, work should commence and D2 was to issue work order to D1 and not directly to the general workers (see paragraph 31(l) above), (b) D2 was to pay the salaries/allowances of the general workers recruited by D1 not directly to such general workers but to D1 who would then arrange for payment to be made to the general workers (see paragraphs 31(m) and 32 above),[6] (c) D1 was to manage MPF contributions for the general workers (see paragraph 31(h) above), and (d) after D2 committed to D1’s quotation for the supply of labour with “successful employment of 90 days”, any termination of such arrangement by D2 would have to be made by advance notice or payment in lieu not to the general workers but to D1 (see paragraph 31(f) above). These matters all pointed to D1 being the employer of the general workers including P.

34.  Thirdly, the daily attendance record of the general workers recruited by D1 for D2 titled “CASUAL LABOUR” with D2’s logo was signed by the general workers in the morning and/or afternoon as appropriate (presumably to confirm their work hours for calculation of their salaries/allowances), and such record was countersigned and maintained/managed by both D1 and D2. Several such attendance records for 1-3 and 6 November 2012 countersigned by D1 and D2 that recorded P’s attendance for work at the Site were disclosed. This was consistent with the T&C which provided that D2 was to make payment to D1 who in turn would make payment to the general workers (including P) (see paragraphs 31(m), 32, and 33(b) above).

35.  Fourthly, it was apparent from the email by D1’s Ray to D2’s Chi on 25 October 2012 (see paragraph 31 above) that D1 was involved in (a) arranging instruction for new general workers brought to the Site by proposing to mix them with existing general workers, and (b) making proposals to D2 in relation to arrangements for effective work performance by new general workers brought by D1 to the Site. In my view, such conduct was consistent with D1’s role as employer.

36.  Fifthly, although the T&C provided that D2 was to provide “workmen’s compensation insurance” (see paragraph 31(g) above), advance payment of employees’ compensation in the total sum of $75,808.00[7] was made by D1 to P by way of 9 cheques of various sums on various dates between 4 May and 12 December 2013. In my view, this showed that whilst D1 and D2 agreed that D2 would procure employees’ compensation insurance, D1 considered itself responsible as employer for payment of employees’ compensation to P.

37.  In all the circumstances and for the above reasons, I am persuaded that even though D2 had control of the Site being its storage yard, D1 was P’s employer who assigned her to work as a general worker at D2’s Site.

38.  Accident  P said (and on balance I accept) she was assigned/deployed by D1 to work as a general worker for D2 at the Site on 7 November 2012, and in the course of her work a Chinese male driver instructed her to work with a female co-worker called Pushpa (whose formal name P did not know) to move long and heavy square-shaped Metal Tubes (ie 2 m (length) x 30 cm (width) x 30 cm (thickness) according to P’s witness statement, and 12 ft long and 1 ft wide according to P’s account as recorded in the 1^st Report) that were placed around the Site in a disorderly fashion. P and her co-worker were to move and stack the Metal Tubes in piles of 10 (“Task”). P also said (and I accept) there was no foreman or supervisor, and all workers had to follow such driver’s instruction.

39.  Although P did not know the exact weight of each Metal Tube, she claimed (and on balance I accept) it was very heavy. After all, it was made of metal and about 2 m or 12 ft long. Given its unwieldy size and heavy weight, I accept it was difficult for P and her co-worker to lift and carry such Metal Tube. P claimed no trolley, equipment and/or machine were provided, and there was not enough manpower for carrying out such Task. She further claimed that she suddenly sprained her back as she lifted/moved a Metal Tube pursuant to such Task, and as a result of such Accident she sustained back injury. She sat down for a while after the Accident, and then went to seek medical treatment.

40.  On balance I accept P’s aforesaid account of how the Accident happened. I see nothing to detract from the credibility and reliability of P’s description of the Accident. First, the Task was consistent with P’s job duties as a general worker which essentially required manual handling, such as removing and/or carrying construction materials around the Site, and lifting heavy objects.

41.  Secondly, P’s account echoed the following description of the Accident given by D1 in its Form 2 submitted to the Labour Department:

“At approx. 9:30 am on Nov 7, 2012 RMD scaffold storage yard [ie D2’s Site] [P] along with other employee Thapa Pushpa was assigned to yard cleaning house keeping work. During the house keeping work they have clean up small scaffold material with manually and other material move with forklift. During the cleaning work they saw 9 pcs of RMD Soldier lying on the floor that is about (appox.150mm x 220mm x 1260mm) and arrange in a place. During the arrange both the employees communicate own language to place the RMD soldier from each ends of the soldier completed arrange in 1^st layer of 5 pcs of RMD soldier. After 2^nd layer pile at the remain 4 pcs height of around 200mm. During the placing on position of a no 6 soldier [P] strained her back. After injury site in charge come to her then inquiry regarding injury then request her for emergency treatment but she refuses several times. She says that she was afraid and waiting friend until 1700 PM then foreman request again then bring to POK OI Hospital about 1730 PM.”

From D1’s account in the Form 2, it was apparent the Accident happened as P described (ie that in the course of lifting/moving Metal Tubes to pile them up she strained her back), and it was clear D1 and D2 knew about the Accident too.

42.  Thirdly, P’s description of the Accident was consistent with the account she gave at the accident and emergency department (“AED”) of Pok Oi Hospital (“POH”), ie injury on duty being sprain injury causing low back pain,[8] and with the account she gave to other medical institutions, ie back sprain while lifting heavy object at work on 7 November 2012.[9] Indeed, Dr Law in the 1^st Report agreed that if the Accident occurred as P described, the diagnosis of back sprain was consistent with the mechanism of the injury by the Accident.

43.  Liability  P claimed the Accident was caused by inter alia D1’s negligence in failing to provide sufficient training, manpower, machinery and/or supervision to avoid the Accident.

44.  In my view, D1 owed personal duty of care to P as its employee. D1’s liability as employer to P as employee for negligence was an aspect of the general law of negligence, but the close relationship between employer and employee shapes the nature of such duty. The employer’s control and the employee’s reliance is sufficient to justify a duty to take care to protect the employee from harm at work. The primary purpose of such duty is to protect the health and safety of the employee.[10] Further, a distinctive feature of the employer’s duty of care to his employee is its non-delegable nature. The employer can delegate the performance of the duty to others, whether employees or independent contractors, but not responsibility for its negligent performance.[11]

45.  The overarching obligation under the employer’s personal duty of care is to provide a safe system of work. “At its lowest, it requires appropriate instruction of the workforce as to the safe performance of the task. But with a task of any complexity, it requires the use of a safe system of work. This may involve the organisation of the work, the procedure to be followed in carrying it out, the sequence of the work, the taking of safety precautions and the stage at which they are to be taken, the number of workers to be employed and the parts to be taken by them, and the provision of any necessary supervision.”[12]

46.  There is also a duty on employers to warn employees of obvious risks, and leaving it to individual employees to take precautions against an obvious danger amounts to a failure to discharge the employer’s duty to provide a reasonably safe system of work. Indeed, the likelihood that individuals will often overlook obvious dangers is part of the rationale for the existence of the duty.[13]

47.  In a situation where the injured worker is on loan from another employer, the borrowing employer will be treated as owing a duty in relation to aspects of the work under its control. Clerk & Lindsell on Torts[14] referred to Spalding v Tarmac Civil Engineering Ltd where A hired from B a mechanical excavator and a driver, and it was held that A was the employer as far as the working of the excavator was concerned, but that B remained the employer as far as its maintenance was concerned. The learned editors were on to say as follows:

“…… With regard to the provision of a safe system of work, the employer who can tell the worker how to perform the job will nearly always be the one liable to the worker for the injury caused by an unsafe system. If in Spalding’s case the driver was injured as a result of the way he was told to work the excavator or the incompetence of fellow workers, the duty should lie on A, the temporary employer rather than the permanent employer, B. But where the permanent employer allows the employee to operate plant or equipment without proper instruction, and the injury was caused by lack of instruction when the employee was using the borrowing employer’s plant, the permanent employer will be in breach of his duty to provide a safe system of work. ……” (my emphasis)

48.  As for an employer’s statutory duty, section 6 of the OSHO provides as follows:

“(1) Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

(2) The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following:

(a) a failure to provide or maintain …… systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the …… handling, storage, transport of …… substances;

(c) a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees;

            ……”

49.  Regulation 31 of OSHR provides as follows:

“(1) An employer must provide his employees with such training as will be necessary for avoiding or minimizing the risks to the safety and health of those employees when they are undertaking manual handling operations which may create safety and health risks.

(2) without limiting the effect of subsection (1), an employer who employs employees to undertake manual handling operations which may create safety and health risks must provide safety and health training to those employees –

(a) when those employees are first employed by the employer; or

(b) when those employees are exposed to new or changed risks to their safety and health …..

(3) An employer must ensure that the training which he is required to provide under subsection (1) –

(a) is repeated whenever necessary having regard to the purposes of the [OSHO]; and

(b) is modified to take into account new or changed risks to the safety and health of his employees; and

(c) is provided during the employees’ ordinary working hours.”

50.  In my view, given the size and thickness of the Metal Tube which was made of metal, the Metal Tube was necessarily a heavy object even though P could not say its actual weight and D1 offered no averment or evidence as to its weight. But there was nothing to show that D1 had given P and/or other general workers any information and/or training on manual handling of heavy objects at the Site or that D1 had checked to satisfy itself it would be safe for just 2 female general workers to carry Metal Tubes such that lifting/transport appliances and/or additional manpower were not required. From D1’s description of the Accident in the Form 2, it was apparent that forklift was available at the Site, but there was no explanation from D1 as to why forklift was not deployed and/or used to lift/move the Metal Tubes.

51.  The email dated 25 October 2012 by D1’s Ray to D2’s Chi (see paragraph 31 above) suggested that D1 left it to D2 to arrange and provide for a person to follow up on every task and to educate and explain to the general workers D1 supplied to D2 on how to handle “RMD material”. In my view, this was not enough to satisfy D1’s personal and non-delegable duties as employer and/or D1’s common law duty to take reasonable care of P’s health and safety at work as explained above.

52.  Further, it turned out that D2 only had a driver to give instructions to P for the Task, and there was no evidence of (a) any training given by D2 in respect of the Task carried out by P and her co-worker (or of any supervision by D1 that D2 properly gave such training) and/or (b) the driver being suitably qualified and experienced to act as foreman to give any such training/instruction (or of any step taken by D1 to ensure D2’s staff was reasonably competent to train, instruct and/or supervise the general workers).

53.  On balance I find the Metal Tube was too heavy to be lifted/moved by just 2 female general workers (which was how P was told the carry out the Task), and there was no training, instruction and/or supervision for P and her co-worker to adopt proper postures/methods for lifting heavy objects in carrying out the Task. In my view, D1 as P’s employer failed to provide a safe system of work in allowing P to carry out the Task without proper instruction/warning and without ensuring sufficient manpower/equipment.

54.  In my view, D1 was negligent and in breach of (a) its common duty of care and its personal and non-delegable employer’s duty and (b) the statutory duties under section 6 of the OSHO and regulation 31 of the OSHR. I further find that the Accident and P’s back sprain injury were caused by and were the result of such breaches of duty. However, I am not convinced D1 had control of the Site and/or D1 was in breach of occupier’s liability. In light of my conclusion above, there was no need to consider the doctrine of res ipsa loquitur even though P pleaded reliance on the same.

55.  Contributory negligence  Although D1 in its pleadings averred that the Accident was caused by P’s negligence or contributory negligence, D1 did not adduce evidence at trial in support of such claim. The burden of proof as to contributory negligence was on D1,[15] but it failed to adduce evidence in this respect.

56.  I find that in deploying P to work for D2 at the Site, D1 expected P to do what was required by D2 as part of the labour supply arrangement between D1 and D2. I refer to the observations by Fuad VP in Sun Wan Co v Ng Kam[16] which are applicable to the present case:

“The plaintiff was not performing his task in a dangerous way to save himself trouble. He was doing it in that way to get on with his employer’s business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer. There were safe system available but they were not ones which, in practice, were used. Indeed, as I have mentioned, the chief foreman himself had employed the same method on the evidence accepted by the judge. In these circumstances, I do not think that an employer can be heard to say that his employee was being negligent in carrying out the work in that manner. It seems to me that the approach of Denning LJ in the Court of Appeal hearing of the General Cleaning Contractors case which I have just read is applicable.”

The words of Denning LJ to which Fuad VP referred were as follows:

“…… it was suggested that the accident might have been avoided if the man had put in a chock to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it, and, if they had taken proper safeguards, the accident would not have happened.”

In all the circumstances, I am not satisfied there was contributory negligence on the part of P.

57.  D1 also averred that the Accident and P’s injury were caused by the negligence, breach of duty of care and/or breach of statutory duties on the part of D2 and/or its servants, employees, staff, agents and/or representatives. But again D1 did not adduce evidence to support such allegations. I also note there was no notice of contribution by D1 against D2. Anyway, even if D2 were negligent and in breach of duty of care and/or statutory duties (but I need not make such finding), D1’s and D2’s default caused/contributed to the very same Accident and injury to P, so there was no need to apportion liability.

58.  Summary  I therefore find D1 liable to P in respect of personal injuries caused by the Accident.

VI.  QUANTUM

59.  Personal history P was born on 10 March 1967, so she was 45 years old at the time of the Accident and 51 years old at the time of the trial. She was a non-smoker and non-drinker. She was not sporty and did not have any hobbies. She had no history of trauma or surgery.

60.  Unrelated pre-existing condition  P claimed she was a healthy woman of normal built prior to the Accident. Apart from a pre-existing condition of exacerbation of back pain and abdominal pain during menses, P claimed she had been well on her back. She did not have any previous/serious injury to her back, and/or any previous need of treatment for her back / lumbar spine. Dr Law in the 1^st Report opined that P’s menstrual-related back pain was not related to the Accident. According to the 1^st Report, prior to the Accident, P also had hypertension under medication treatment from general practitioner for about 5 months.

61.  Injuries and treatment  After the Accident, P was admitted to POH’s AED for treatment. According to the medical reports dated 8 February 2013 and 13 August 2014 by POH’s AED, P’s chief complaint was “low back pain after sprain”. Medical examination revealed there was tenderness over the lumbar spine, but the power of both lower limbs was full and P could walk without aid. P was treated and discharged. P re-attended POH’s AED 15 times from 10 November 2012 to 4 January 2013 for persistent low back pain.

62.  According to the medical records of POH’s AED, P complained of persistent low back pain. On 7 November 2012, P walked unaided slowly, had full 5/5 lower limbs power and no radiation, on 13 November 2012 P complained of mechanical low back pain which was on improving trend but no numbness and physical examination revealed minimal paraspinal tenderness at L5/S1 region (and P requested sick leave), on 17 November 2012 P could walk unaided with no neurological deficit (but P requested extension of sick leave), on 20 November 2012 P had no lower leg pain, numbness or weakness and no neurological deficit, on 26 November 2012 P could walk unaided, on 2 and 5 December 2012 P could walk unaided with no numbness or weakness, and on 9 December 2012 there was no radiation and straight leg raising (“SLR”) was 70° on both sides.

63.  It was only on 13 December 2012 that P walked with aid when she attended POH’s AED and complained of low back pain without numbness. On 14 December 2012, P had a private MRI of the lumbosacral spine. According to the MRI report dated 15 December 2012 by Opus Medical Diagnostic Centre, P had mild lumbar scoliosis, desiccation and posterior annular tear in L4/5 and L5/S1 discs, mild disc bulge at L4/5 level without causing spinal or foraminal stenosis, small L5/S1 left subarticular disc protrusion with mild narrowing of left lateral access, and descending left S1 nerve root was close but not displaced by the disc. According to the medical records, P attended POH’s AED on 16 and 25 December 2012. It was noted she was able to walk with no leg pain, weakness, numbness or neurological deficit.

64.  On 4 January 2013, P was referred to the department of orthopaedics and traumatology (“DOT”) at Tuen Mun Hospital (“TMH”), and was admitted to the DOT ward. According to the medical reports dated 15 October 2014 and 22 May 2015 and also the medical records of TMH’s DOT, P had no neurological deficit, no leg pain, no lower limb numbness/weakness and no sphincter disturbance, and her MRI showed mild L4/5 and L5/S1 disc bulging with no cord compression seen. Physical examination revealed “SLR full, LL neurology full, power full, sensation intact, jerk: symmetrical”. The treatment notes recorded P was walking with stick but “sitting @ bedside @ 90°”. It was also noted that “no SL required”. The discharge summary by TMH’s DOT dated 5 January 2013 noted low back pain for 2 months with no radiation, no lower limb pain, no lower limb numbness and no sphincter disturbance, and physical examination revealed “no LL numbness or weakness, able to sit at bed side with no difficulties”. P was then referred for physiotherapy and occupational therapy for further training. But P did not attend occupational therapy for training even though she had physiotherapy for several months at POH. The physiotherapist suggested “reduced lower back pain by 20% and she was able to [have] sustained sitting for 30 minutes”.

65.  The medical report dated 22 May 2015 by TMH’s DOT noted P had residual back pain. According to the consultation summary dated 28 February 2013, although P walked with a stick and complained that her back pain had not improved, her lower limb power was full and sensation was intact. According to the consultation summary dated 12 April 2013, physical examination revealed P’s back was stiff, but forward flexion of back “touch the knees” and “extension with back relief”. According to the consultation summary dated 7 June 2013, P walked with a stick and complained her back pain was similar, but she had no limping gait, her SLR was 80° with left-right sensation intact, and lower limbs power was full. According to the consultation summary dated 19 August 2013 by TMH’s DOT, P’s “[back] pain was more or less same”, she walked “with stick, claim able to walk for 30mins” and she alleged “[numbness] over the lower limb”, but physical examination was the same as in April 2013, ie her SLR was 80° with left-right sensation intact and lower limbs power was full. It was noted P did not seek appointment for occupational therapy, and regular exercise was suggested. Further, it was explained to P that she had reached maximum medical improvement (“MMI”) and that it was likely she would not be able “to return to her work as she claimed that she’s not able to lift heavy object. Advise her to change job nature”.

66.  According to the medical report dated 29 July 2014 by Madam Yung Fung Shee Health Centre General Out Patient Clinic (“YFSHC”) and the medical report dated 31 March 2015 by Dr Wu Sze Man of YFSHC’s Department of Family Medicine and Primary Health Care (“DFM&PHC”) as well as the relevant consultation summaries, P visited such clinic 3 times respectively on 19 December 2012, 18 January 2014 and 26 July 2014. At the first visit physical examination showed pain and tenderness at lower lumbar region, flexion of spine brought fingers to a level just below knees, no neurological deficit and walking slowly with a stick. Analgesics were prescribed. During the 2^nd visit on 18 January 2014, it was noted P had a private MRI scan done showing intervertebral disc abnormalities,[17] and P complained of same low back pain and “come for SL and analgesic, claim ORT give SL till MAB but employer postpone her MAB date so come for extension of SL”, but “already MMI according to ORT note and patient summary”. Physical examination found P walked unaided, and lumbar spine active range of movement was full. It was explained to P that she had reached MMI and “SL not necessarily till MAB date”. P was given sick leave for that day with analgesics. During the last visit on 26 July 2014, P still complained of low back pain, and it was noted that MAB assessment had been done and was pending appeal. Physical examination showed P walked with stick slowly with diffuse tenderness at low back, but there was no redness/swelling and “flexion of back to toes”. Analgesics were prescribed.

67.  P claimed she followed up at Tin Shui Wai Health Centre’s (“TSWHC’s”) DFM&PHC on 29 December 2012 and re-attended on 26 February 2013. According to the medical report dated 30 July 2014 by TSWHC’s DFM&PHC, P gave an account of the Accident and complained of low back pain, but there was no sphincter disturbance and no lower limb weakness/numbness. Physical examination showed P walked with a stick, and there was tenderness over lower lumbar spine. But paraspinal muscle was non-tender, SLR was 90° on both sides, and lower limb power was 5/5 on both sides. P was given analgesics. She was last followed up on 20 July 2014 when she still complained of low back pain. Physical examination at the time showed diffuse tenderness at low back but no redness/swelling, and flexion could reach toes. P was given sick leave for 29 December 2012 to 3 January 2013, 26-27 February 2014, and 16-17 and 20-21 July 2014.

68.  According to the medical reports dated 28 July 2014 and 27 March 2015 by Kam Tin Clinic’s DFM&PHC, it was noted P attended such clinic on 28 February 2014 and presented with persistent low back pain after the Accident. Physical examination revealed P walked with stick slowly, but there was diffuse tenderness over low back and she could not extend both knees for SLR examination (similar examination results as per P’s visit to Yuen Long General Out Patient Clinic on 26 February 2014). But when P attended such clinic on 28 and 30 July 2014, although she walked slowly with a stick and still complained of low back pain, there was diffuse tenderness at low back but no redness or swelling and “flexion of back to toes” (similar examination results as per P’s visit to Yuen Long General Out Patient Clinic on 20 July 2014). Analgesics were given, and sick leave was granted for 28 February to 1 March 2014, 18-19 and 28-29 July 2014, and 8-10 and 17-22 October 2014. The last known consultation at the Yuen Long General Out Patient Clinic was on 5 October 2014. The relevant consultation summary noted that P complained of “low back pain again recent few days” with normal looking back, no radiation, no premature junctional contraction (PJC), no bony tenderness and no crepitus.

69.  According to the medical report dated 13 August 2014 by POH’s AED, P re-attended POH’s AED 7 times between 7 January 2014 and 13 July 2014 for low back pain. According to the medical reports dated 8 February 2013 and 13 August 2014 by POH’s AED, POH’s AED granted P sick leave for 7-15 November 2012, 17 November to 18 December 2012, 25-28 December 2012, 19-22 January 2014, 22-25 February 2014, 2-5 March 2014, 6-9 April 2014, 10-12 May 2014 and 13-15 July 2014.

70.  According to the medical report dated 26 March 2015 by Tin Shui Wai (Tin Yip Road) Community Health Centre’s DFM&PHC, P attended such clinic on 22 July 2014 with presentation of persistent low back pain. Physical examination revealed that she walked with a stick. There was tenderness over lower lumbar spine. Sick leave was granted for 22-25 July and 23-25 October 2014.

71.  In short, P claimed she attended POH, TMH and other clinics for medical treatment of her persistent low back pain, and was granted sick leave by POH, Asia Medical Centre, TMH, Yuen Long Jockey Club Health Centre, Kam Tin Clinic, YFSHC and Tin Shui Wai (Tin Yip Road) Community Health Centre for 743 days from 10 November 2012 to 4 February 2015. According to the 1^st Report, she told Dr Law she rested for 2 years and still had not yet resumed work.

72.  In the 1^st Report, Dr Law opined that the treatment P received with medication, rest and physiotherapy was standard and appropriate.

73.  Present complaints  P in her witness statement dated 9 January 2016 (the contents of which she adopted as part of her evidence) claimed that after treatment, she still had problems due to her injuries as follows: (a) back pain, (b) tenderness over lumbar spine, (c) increase in pain with weather change, (d) low back pain that increased on prolonged walking or sitting, (e) need to take pain-killer to relieve pain occasionally, (f) difficulties in lifting/carrying heavy objects, (g) difficulties in standing/walking for long time, (h) difficulties in crouching and squatting, (i) need to use walking stick, (j) need to keep changing sleeping posture to ease the pain, and (k) sleeping disturbance. P further claimed her back injury as a result of the Accident caused difficulties in her daily life, eg she could only manage light domestic chores, and felt upset/depressed and envious of her able-bodied friends (which P described as adverse impact on her social life).

74.  At the trial in May 2018, P gave evidence that her back was still painful even though she took medication from time to time. She claimed that she used a stick for walking as her knee would not support her, and she feared that if she did not use a walking stick she would fall down. P said she tried to find work after January 2016, but was unsuccessful because potential employers did not want to hire her with a walking stick.

75.  Examination by Dr Law on 15 January 2016  Dr Law found P to be in general good health. P was able to walk with normal gait, perform single leg standing normally on either leg, perform tip toe walking normally and perform full squat, but she was unable to perform heel walking, and could not sit for more than 30 minutes. Examination of the back revealed that P’s flexion, extension, right side bend and left side bend were “Reaching Mid Shin”, 20°, 30° and 30° respectively, and her SLR at lying position was 90° on both sides. Waddell’s signs were negative. Neurological examination showed that motor power was good, reflexes were intact, and sensation was normal, but “she complained of pins and needles of both thighs anteriorly”. X-ray of lumbar spine was normal with no bony lesions.

76.  Dr Law’s opinion Dr Law opined that the diagnosis of P’s injury was “back sprain”, and that such diagnosis was consistent with the mechanism of the injury P sustained as a result of the Accident.

77.  The Accident occurred more than 3 years before the 1^st Report, and P complained of persistent back pain when examined by Dr Law on 15 January 2016. Physical examination showed P sat for 30 minutes, walked with a normal gait and had mild tenderness on midline lumbar spine, but did not have neurological deficit, and x-ray of lumbar spine did not reveal any bony lesions.

78.  In the 1^st Report, Dr Law noted P had worked as a construction worker since she came to Hong Kong in 2004 without chronic back problem/injury except for menstrual-related back pain, and the then current x-ray did not show any degenerative changes, so Dr Law opined that the MRI finding of annular tear at the L4/5 and L5/S1 discs were compatible with the result of injuries from the Accident, and that P’s back condition was solely caused by her injuries as a result of the Accident.

79.  In the 2^nd Report, Dr Law maintained his view that the MRI finding of annular tear at L4/5 and L5/S1 were consistent with the effect of P’s back sprain injury. Dr Law explained that as documented annular tear could occur after an acute traumatic injury (especially rotation injury), and P did not have any previous record of back condition, and had been working as construction site worker for many years without any back problem. The back symptoms occurred after the subject injury, so Dr Law opined that the back symptoms and MRI finding of annular tear at L4/5 and L5/S1 were likely to have been caused by the subject injury.

80.  But Dr Law agreed it was likely that the MRI findings of L4/5 and L5/S1 intervertebral disc desiccation and prolapse were not related to the subject injury, and more likely to be related to degenerative process or pre-existing condition, but such pre-existing disc changes did not cause any symptom to P. Dr Law stated that such MRI findings of degenerative disc disease were not uncommon in even asymptomatic individuals. P was 45 years old at the time of the subject injury, and >40% of asymptomatic healthy adults at this age group would have MRI features of various disc degeneration that did not cause any active back symptom. The prevalence of such innocuous MRI finding of disc degeneration would increase with age, up to 80% for those over 60 years of age. So a high percentage of healthy individuals could continue with their life without being affected by disc degeneration. Dr Law believed that but for the Accident and back injury it was likely that P’s back would have continued to be asymptomatic although it would harbour innocuous MRI finding of lumbar disc degeneration, so P’s then back condition was likely to be solely caused by the Accident. Further, since the x-ray lumbar spine did not show any bony feature of degenerative changes, the MRI findings of disc degeneration suggested the changes were early and mild without causing osteophytes to be shown on the x-ray. In short, Dr Law agreed that L4/5 and L5/S1 disc desiccation and prolapse were likely to be pre-existing (but were not directly related to P’s back symptoms), but the annular tear was compatible with the result of the back injury due to the Accident.

81.  Nevertheless, Dr Law agreed that the prevalence of MRI lumbar disc degeneration would increase with age, and that the occurrence of back pain would increase with age up to 65 years after which back pain incidence would drop with uncertain reason. Considering the nature of P’s occupation being laborious and would subject the torso to daily exertion and the back to sudden loading during heavy duty, which made it highly probable to cause injury, Dr Law opined that P’s condition fell within the category that “there is a strong possibility that some other event or natural progression of the pre-existing condition would have brought about her present state”.

82.  Bearing in mind (a) it was well established that the prevalence of having symptomatic lumbar spine disc diseases would increase with age, (b) the overall prevalence of chronic back pain in females was estimated to be 4% to 13% in all age groups, (c) epidemiological researches indicated gradual increase in back pain prevalence up to the age of 65 years (ie the prevalence of back pain at age below 45 years and at the age of 65 years was 11.9% and 16.9% respectively), (d) P was 45 years old at the time of the Accident but the L4/5 and L5/S1 disc desiccation and prolapse (even if they were pre-existing) did not cause her any back symptoms (ie the lumbar disc changes were asymptomatic), and (e) the back symptoms and annular tear occurred after the Accident, Dr Law opined that without the effect of the back injury caused by the Accident, it would have taken about 20 years (ie when P was about 65 years old) for natural progress of her pre-existing lumbar disc desiccation and prolapse to cause her current symptoms.

83.  On the question of how much the pre-existing degeneration/ condition contributed to P’s symptoms if at all, Dr Law noted P did not have any history of previous back problem, and she did not require any active treatment for her back prior to the subject injury despite the possibility of having radiological lumbar disc desiccation and prolapse. Dr Law noted that such asymptomatic disc desiccation and prolapse were commonly found in the general healthy population (and medical literature estimated such MRI changes were present in 22% of healthy population below 60 years of age, and in 57% of healthy population above 60 years of age), and opined that, even if the disc desiccation and prolapse were pre-existing prior to the back injury as a result of the Accident, they did not contribute to or cause any back symptom on P before or after the Accident. Dr Law stated that scientific data also suggested such MRI findings, despite getting more common with aging population, will remain innocuous and asymptomatic. Dr Law also noted P’s MRI scan showed disc desiccation and prolapse as well as annular tear without any x-ray feature of abnormality, so the MRI finding of annular tear did not have strong relationship with x-ray finding of osteophytes formation or facet osteoarthrosis, hence P’s current back symptoms and annular tear were likely to be solely caused by the subject injury.

84.  P received long-term treatment after the Accident for her back sprain. By the time of the 1^st Report, P claimed there was still persistent back pain with limited tolerance in walking, standing and sitting, and she still required oral painkiller for symptom control for about once a week. Dr Law opined that P’s then condition was compatible with the treatment progress documented by TMH’s orthopaedic clinic. Dr Law also opined that negative Waddell signs indicated P’s symptoms were genuine, and that her then disability would likely be permanent and would affect her vocational life and activities of daily living (eg P told Dr Law she could not wash her hair and had to go to a salon for such purpose as she had difficulty in bending her torso, and she was unable to perform household chores (which had to be shared by other family members) due to need for heavy lifting and her limited tolerance in walking/standing).

85.  Dr Law noted P still had residual impairments of mild back pain and stiffness, and opined that the injury and residual permanent disability to her back with 2 levels intervertebral disc involvement equated to permanent disability of 8% of the whole person. Dr Law considered orthopaedically P would not require further treatment or operation, but noted P was still taking oral medication for her symptoms control about once a week.

86.  Causation Causation is essentially a matter for the judge and not for the doctors. The judge will be assisted by the medical evidence but is not bound by it; he is not confined to those matters which the doctors may individually have picked out in their consulting rooms. It is important to bear in mind law and medicine applied different standards.[18] Hence, this court will consider the treatment and expert medical evidence, but is not bound by the same.

87.  Where there is a relevant pre-existing condition (eg MRI findings in the present case of mild lumbar scoliosis, L4/5 and L5/S1 intervertebral disc desiccation and prolapse, mild disc bulge at L4/5 level without causing spinal or foraminal stenosis, small L5/S1 left subarticular disc protrusion with mild narrowing if left lateral access, and descending left S1 nerve root that was close but not displaced by the disc), it is necessary to consider the “crumbling skull” principle. I have explained the relevant principles in Yu Wai Kan v Law Cho Tai,[19]

“71. ……

(e) When considering the effect of a pre-existing condition on an award of damages, there are 3 possible scenarios. The first is where the plaintiff is almost certain to have gone through life unaffected by the condition, and the defendant will be liable for all damage caused. The second is where there is a strong possibility that some other event or natural progression of the condition will have brought about the plaintiff’s present state, so it will be necessary to assess the degree of the possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working life or lifespan and thus abridge his loss. The third is where this will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extent of which depends on the evidence as to when the precipitating event will have occurred (see Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527).

(f) Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. Past loss of earnings may also be reduced if the risks during the years concerned are sufficiently high. For future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, especially when a plaintiff’s working life is likely to be limited by a pre-existing condition (see Chan Kam Hoi at p.529 and Cheung Fat Tim v Wong Siu Ming trading as Kee Construction Company & anor HCA 5079/1991, Findlay J (unreported, 17 January 1995)).

(g) The principles in (e)-(f) above have been developed by the courts to give the plaintiff reasonable compensation in order to achieve restitutio in integrum, which is the key objective in awarding loss caused by negligence.” (my emphasis)

88.  On balance, I accept Dr Law’s opinion that the posterior annular tear at L4/5 and L5/S1 discs were caused by the Accident. I also agree that the pre-Accident menstrual-related back pain was irrelevant, and that the mild pre-existing degenerative changes as evident from the MRI findings were not caused by the Accident. I further accept P’s evidence and Dr Law’s opinion that the pre-existing degenerative changes were asymptomatic before the Accident, and P’s back symptoms only appeared after she suffered back injury as a result of the Accident. On balance, I agree with Dr Law that P’s back symptoms were triggered by her back injury, and but for the Accident P’s pre-existing degenerative changes would likely have remained asymptomatic until P was about 65 years old and the natural progress of her pre-existing lumbar condition might cause her to have the symptoms that she had after the Accident. This would fall within the 2^nd scenario in Chan Kam Hoi v Dragages et Travaux Publics.[20] Thus, D1 would be liable for the disability and discomfort P suffered (which I will turn to below) until her degenerative condition would run a natural deteriorating cause over the years until she would have developed such symptoms by the time she was 65 years old. This would have impact on P’s claim for pain, suffering and loss of amenities (“PSLA”), but unlikely to have impact on P’s claim for loss of earnings as she would have retired by then.

89.  PSLA  Immediately after the Accident, although there was tenderness over the lumbar spine, P’s lower limbs power was full and she could walk unaided (see paragraphs 61-62 above). In November and early December 2012, apart from low back pain, there was no neurological deficit, no radiation, no numbness, lower limbs power was full, slight reduction of SLR to 70° (from full SLR at 90°) on both sides and paraspinal tenderness at L5/S1 region was not severe (see paragraphs 61-62 above).

90.  P allegedly first required walking aid on 13 December 2012 (see paragraph 63 above) despite improving trend of her low back pain (see paragraph 62 above) and no leg pain, weakness and numbness and no neurological deficit in the latter half of December 2012 and when admitted to TMH’s DOT ward in early January 2013 (see paragraphs 63-64 and 66 above). Actually, comparison of P’s clinical features on 19 and 29 December 2012 and upon her admission/discharge from TMH’s DOT ward on 4 January 2013 showed objective improvement rather than deterioration (see paragraphs 64 and 66-67 above) even though P presented with walking with a stick. On 19 December 2012, flexion of spine brought fingers to a level just below the knees (see paragraph 66 above). On 29 December 2012, P showed no lower limb weakness or numbness, and paraspinal muscle was non-tender, SLR was 90° on both sides, and lower limbs power was full (see paragraph 67 above). On 4 January 2013, the orthopaedic doctors noted P’s lower limbs neurology and power were full, sensation was intact and jerk was symmetrical, and more importantly P’s SLR was full and she could sit at bedside at 90° without difficulty. Thus, the objective clinical features showed the range of movement had improved. Further, although P still had residual back pain, it was reduced by 20% after physiotherapy sessions (see paragraph 64 above).

91.  Yet P claimed to have limited tolerance of 30 minutes for walking and sitting and need for walking stick in 2013-2014. The objective clinical features recorded in the medical reports/records for 2013-2014 showed P’s condition was not as severe as presented. In April 2013 forward flexion could reach the knees and there was extension with back relief, and by June/August 2013 there was no limping gait, SLR was 80° and sensation as well as lower limbs power were full (see paragraph 65 above). By January 2014, P could walk unaided, and lumbar spine active range of movement was full (see paragraph 66 above). Hence, the treatment doctors in August 2013 and January 2014 considered P had reached MMI (see paragraphs 65-66 above). Even though P still presented with slow walking with stick in July 2014, the objective clinical signs gave a more optimistic picture, ie low back tenderness was diffuse (which meant the pain was not neurologically-related as it did not follow the dermatome), there was no redness/swelling (which meant there was no inflammation of the muscles), and more importantly, “flexion of back to toes” (ie full flexion of the back and torso) (see paragraph 66-68 above). By October 2014, the Yuen Long General Out Patient Clinic noted P complained of “low back pain again recent few days”, which suggested that by that time P’s residual low back pain was no longer persistent and continuous, but might flare up now and then (see paragraph 68 above).

92.  Further, despite P’s various complaints in her witness statement dated 9 January 2016 in paragraph 73 above, P’s objective clinical picture as revealed a few days later on 15 January 2016 by Dr Law’s physical examination was much more encouraging. Despite P’s complaint in her witness statement that she need to use walking stick (see paragraph 73(i) above) and had difficulty in crouching and squatting (see paragraph 73(h) above), a week later Dr Law found P was able to walk with normal gait, perform single leg standing normally on either leg, perform tip toe walking and perform full squat (and was only unable to perform heel walking), and her SLR was 90° on both sides. With such physical examination on 15 January 2016, Waddell’s signs were naturally negative, but this did not explain the more severe complaints a week earlier made in P’s witness statement.

93.  In my view, whilst I accept P suffered annular tear and genuine back pain and had some walking and sitting tolerance as a result of back injury/pain caused by the Accident, I am not satisfied her condition was as severe as she presented. She gave evidence that even at the time of trial she had to rely on a walking stick because of concern that her knee would give way and she would fall down. But there was no injury to her knee at all, and she had no neurological deficit or cord compression. Even Dr Law found that her motor power was good, reflexes were intact and sensation was normal. In my view, P could walk unaided, and should be encouraged to be more active to maintain/develop her motor and/or ambulatory skills. Further, the objective clinical features discussed above, ie absence of any neurological deficit and/or cord compression, SLR was full, lower limbs and/or motor power was full/good, flexion could reach toes and ability to perform full squat, spoke of mild residual deficit. I find on balance that whilst P still had some genuine residual back pain, it had become stable and moderate without need for continuous medication, and although she had some limitation in her walking/sitting tolerance due to back pain, it should have been better than mere 30 minutes. I also consider P could have attended to some moderate household chores on her own.

94.  P claimed general damages for PSLA in the sum of $320,000.00.[21] Taking into account P’s reasonable rehabilitation, her moderate residual condition, her symptoms and disabilities, her treatment history and Dr Law’s opinion, but noting the impact of P’s pre-existing degenerative changes to her back, the appropriate award for PSLA is $260,000.00.

95.  Pre-accident employment  According to P’s account to Dr Law in the 1^st Report, P worked as a construction site worker since 2004, and before the Accident she had worked at Disneyland and was a garden worker for 2-3 years. P said that since October 2012 she was employed by D1 and/or D2 as a general worker, and her earnings were $470.00/day (ie $320.00 basic salary and $150.00 allowance) (as admitted by D1 in its Form 2). According to the Form 2 submitted by D1 to the Labour Department, P worked for D1 and/or D2 for 6 days in October 2012 and “4 days, 4 hours” in November 2012. P believed (and on balance I accept) that but for the Accident she would have worked for about 26 days per month and on average would have earned about $12,220.00 per month.

96.  P explained (and on balance I accept) that her job duties at the Site involved general worker’s work that included removing and/or carrying construction materials around the Site, lifting objects, etc. Such work required manual handling, and frequent bending down to move heavy objects, especially the long and heavy Metal Tubes and other construction materials. Her work also required (a) walking around the Site and on uneven ground (and she would rarely sit down) and (b) climbing ladders and crouching down. Such job duties meant P had to adopt different back postures in her pre-Accident work, and she required substantial back and body strength throughout her workday. I accept that despite the asymptomatic pre-existing degenerative changes to her back, P could perform her job as a general worker quite well before the Accident.

97.  Return to work  P claimed that as a result of the Accident and her injuries, she found it difficult to carry out the duties of a general worker as outlined in paragraph 96 above, which adversely affected her employment. P claimed her persistent back pain with limited body movement and ambulatory ability made it difficult for her to return her pre-Accident work and/or to find a new job at construction sites, and she would thereby lose the chance to be promoted to be a skilled worker and would suffer loss of monthly earnings if she changed to a more sedentary job.

98.  According to the Form 9 (Certificate of Review of Assessment) dated 18 May 2015, P was granted sick leave for “back sprain resulting in low back pain and stiffness” from 10 November 2012 to 4 February 2015 (except for a few days).[22] According to the 1^st Report, Dr Law also noted the treating doctors granted sick leave for P from 8 November 2012 to 5 February 2015.

99.  Taking into consideration the nature of P’s occupation and perhaps P’s poor response to treatment, Dr Law opined that such sick leave given was necessary and appropriate as the injury to P’s back caused severe symptoms which persisted despite prolonged treatment.

100.  Dr Law noted that prior to the Accident P was well and had worked as construction site worker for 8 years with regular heavy duties. He opined that P would have remained well and employed but for the back injury she suffered as a result of the Accident. As she still had back pain with limited tolerance in walking, sitting, standing and heavy lifting 38 months after the injury, Dr Law opined that she would be permanently limited in her choice of employment, and agreed with the opinion at TMH’s orthopaedic clinic that P would not be able to return to her pre-Accident occupation as a construction general worker as she would not be able to tolerate heavy manual duty or prolonged ambulation. Dr Law suggested P would need to change her occupation to one with less physical demand, eg cashier, watchman or gas station worker.

101.  In my view, the starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[23] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. In my view, the end of sick leave as a result of static or maximum medical improvement state on the basis that no further active or therapeutic treatment will inform the issue of appropriate sick leave, but does not necessarily mean the patient has made full recovery or can immediately return to pre-accident work or other gainful employment. It is a matter of assessment and degree.

102.  I bear in mind the 1^st Report noted that according to a consultation summary dated 19 August 2013 by TMH’s DOT, TMH’s DOT (presumably an orthopaedic doctor) had explained to P that she had reached MMI and she would have to change job. I am satisfied P had reached MMI by mid-2013 even though she did not make full recovery and had some permanent disability. She no longer needed therapeutic treatment, and only analgesics were required on need basis. As explained above, whilst I accept P had some sitting/walking intolerance, her residual condition was more moderate than presented, but she would have difficulty in discharging duties as a physical labourer due to the heavy loads and physical demands on her back and torso. Thus, in my view, (a) P would not be able to return to her pre-Accident work as general worker at construction sites as she would not be able to manage the job duties as explained in paragraph 96 above, but (b) in relation to P’s Accident- related injuries/disabilities, P should have recovered reasonable sufficiently to have returned to some form of employment by November 2014 (ie 2 years after the Accident). As seen from paragraph 91 above, by July 2014 flexion of back was to toes, and by October 2014 the back pain was only intermittent.

103.  Although P in fact did not have any post-Accident work, P conceded in the RRSoD that for the calculation of her loss of earnings, it should be assumed she could obtain work as a car park attendant or similar work 3 months after expiry of her sick leave. I agree P would have to seek alternative work such as car park attendant or similar work that would not require her to lift weight and was more sedentary in nature, but as explained above, I have found on balance P should have returned to some gainful employment by November 2014.

104.  Pre-trial loss of earnings and loss of MPF contribution According to a payroll advice dated 30 January 2018 disclosed by D2 in respect of a yard labourer (ie comparable worker to P’s position at the Site at the time of the Accident) for January 2018, the earnings of such labourer included wages ($15,675.00), overtime pay ($1,752.13) and double pay ($15,675.00). Thus, the monthly income of such labourer in January 2018 would be $15,675.00 + $1,752.13 + ($15,675.00 ÷ 12) = $18,733.00. For the purpose of calculating pre-trial loss of earnings, I shall adopt the median earnings between P’s notional monthly income at the time of the Accident ($12,220.00) and monthly income of yard labourer at the Site in January 2018 ($18,733.00), ie ($12,220.00 + $18,733.00) ÷ 2 = $15,477.00.

105.  I have found P should have returned to gainful employment 2 years after the Accident, but she would have to change to a less strenuous job. P gave evidence she could not look for work because she had to use a walking stick. But I have found she could walk unaided, but she would have mild walking intolerance due to back pain. In the RRSoD, P claimed notional work as car park attendant or similar position would be paid about $11,000.00/month. But P did not adduce evidence of earnings of a car park attendant, and P would have difficulty in securing clerical work given her lack of education. Mr Leung referred me to the earnings of a cashier/chit clerk provided by the Census and Statistics Department at $11,098.00 in March 2015 and $12,032.00 in December 2017, ie average monthly earnings of ($11,098.00 + $12,032.00) ÷ 2 = $11,565.00, and suggested P would have been able to manage such work which was more sedentary in nature. On balance, I consider such notional earnings to be a fair reflection of what P could have earned.

106.  Thus, P’s pre-trial full loss of earnings and MPF contribution until end of October 2014 was $15,477.00 x 12 months x 2 years x 1.05 = $390,020.00. After 2 years, P would suffer pre-trial partial loss of earnings and MPF contribution from November 2014 until April 2018 at ($15,477.00 - $11,565.00) x 42 months x 1.05 = $172,519.00. Thus, P’s pre-trial loss of earnings would be $390,020.00 + $172,519.00 = $562,539.00.

107.  Post-trial loss of earnings and MPF contribution  I accept that but for the Accident, P would have been able to work as a general worker until she reached 65 years of age when her degenerative condition would become symptomatic. The appropriate multiplier is 11.68.[24] I find that P’s post-trial loss of earnings and MPF contribution was ($18,733.00 - $12,032.00) x 12 months x 11.68 x 1.05 = $986,173.00.

108.  Loss of earning capacity  I accept P would be less competitive than comparable workers who are able-bodied as she would have some residual back pain causing mild sitting/walking intolerance should she be thrown into the labour market, and she would probably need a longer period of time before she could find suitable employment in the open market. I consider 4 months’ income would be a proper reflection of P’s disadvantage, so the award for her loss of earning capacity was $12,032.00 x 4 months = $48,128.00.

109.  Incurred medical expenses  In the RRSoD, P claimed $12,960.00 for incurred medical fees and expenses. Such claim was not unreasonable, and I allow the sum of $12,960.00.

110.  In the 1^st Report, Dr Law opined P would benefit from (a) periodic consultation with family physician or orthopaedic specialist for assessment of symptoms progress and (b) prescription about once every 6 months until her retirement from all gainful employment. Dr Law said each such consultation would cost about $2,000.00 in the private market. But P had no claim in the RRSoD for future medical expenses.

111.  Travelling expenses  In her witness statement, P claimed $1,000.00 for incurred travelling expenses. P did not produce any receipts, and claimed some receipts were lost and/or sometimes no receipts were provided. In my view, such sum was not unreasonable, and I allow the same.

112.  After the trial hearing, P’s solicitors wrote on 27 June 2018 to inform the court that D2 had paid P through the DLA the settlement sum of $410,000.00 on 20 June 2018 pursuant to the settlement agreement made on 7 May 2018.

113.  Summary  I summarise the above awards as follows:

PSLA	$260,000.00
Pre-trial loss of earnings and MPF contribution	$562,539.00
Post-trial loss of earnings and MPF contribution	$986,173.00
Loss of earning capacity	$48,128.00
Medical expenses	$12,960.00
Travel expenses	$1,000.00
	$1,870,800.00
Less advance payment of employees’ compensation	($75,808.00)
Less settlement sum received from D2	($410,000.00)
Total:	$1,384,992.00

VII.  CONCLUSION

114.  I therefore grant judgment in favour of P against D1 in the sum of $1,384,992.00. Interest is payable on the award for PSLA at 2%pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

115.  There is no reason why costs should not follow event. I grant a costs order nisi that D1 shall pay P costs of P’s claim against D1 in the present action (including all costs reserved, if any) to be taxed if not agreed on High Court scale, and that P’s own costs be taxed in accordance with Legal Aid Regulations.