SHER RAHMAN v. TONG KEE ENGINEERING LTD

HCPI 1377/2016

[2018] HKCFI 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1377 OF 2016

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J U D G M E N T

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1.  The plaintiff (“Rahman”) claims damages for injury to his lower back when he was working under the employ of the defendant (“Tong Kee”) at the construction site in question on 8 January 2014.

BACKGROUND

2.  Rahman was at the time of the accident 40 years old.  He started to work as a general labourer for Tong Kee in October 2013. On 8 January 2014, he was working at a tunnel construction site at Beacon Hill near the True Light Middle School, Kowloon (“the Site”).  His job at the time was to work with two other co-workers to move bags of cement from pallets onto the edge of a platform and then from there onto a nearby conveyor belt.  Each bag of cement weighed up to 45 kg.  On that day, Rahman and his co-worker had unloaded two pallets of bags of cement and were in the course of unloading the third pallet.  He suddenly felt severe pain in his lower back.  He had to stop.  Subsequent attendance at the hospital on the same day confirmed that he suffered from sprained lower back.

3.  Rahman has pleaded against Tong Kee causes of action for breach of occupier’s liability, statutory and implied contractual duties as the employer as well as negligence.  At the trial, the cause of action for breach of occupier’s liability was not actually pursued.  Nor was the claim for breach of statutory duty on the part of Tong Kee to ensure that the place of work was reasonably safe seriously pursued.  That was sensible.  In respect of liability, the real dispute lies in whether Tong Kee was in breach of its (i) duty in negligence; or (ii) duty as the employer pursuant to the Occupational Safety and Health Regulation made under the Occupational Safety and Health Ordinance, Cap 509.

4.  As to (ii) mentioned above, Rahman refers to section 6 of the Ordinance and sections 23(1), 24 and 27(1) of the Regulations.  The particulars of the alleged duties and breach, however, are essentially similar for the purpose of both (i) and (ii).  All those have to do with the system of work Rahman was subjected to at the time.  In criticising that the system of work at the time was unsafe, which led to his injury, Rahman says, amongst others, that Tong Kee had the following major failure:

(1)   failing to make a preliminary assessment of the risks to health and safety of the workers in undertaking the manual handling operations and advising him of such risk;

(2)   failing to take appropriate steps to reduce the risks to the safety and health of the works;

(3)   failing to ensure that there was sufficient manpower to undertake the work in hand;

(4)   failing to give proper instruction of how to safely unload the bags of cement;

(5)   failing to heed his requests for regular rotation with other workers to undertake the heavy labour;

(6)   constantly putting pressure on him and his co-workers to work faster and to keep the conveyor belt constantly full;

(7)   failing to provide adequate training; and

(8)   failing to supervise the work properly.

5.  Tong Kee denies the alleged breach and says the follows:

(1)   The system of work was so designed and implemented that the work could be safely handled by two able general labourers without risk of injury.

(2)   Rahman had prior experience and training regarding safe manual handling operations.  He had attended relevant safety training at the Site.  Specific instruction was also given by the supervisor of the workers before he undertook such work.

(3)   Rahman and his two co-workers were instructed to work as a team, and there was rotation of duties amongst the three of them as well as adequate breaks for rest.

(4)   The workers were not under time constraint, and there was no target set as to the number of bags of cement that had to be unloaded by them.

(5)   The work was supervised by an experienced and competent site agent, which would give safety instruction including those regarding manual handling operations.

6.  Tong Kee also put forward the defence of contributory negligence on the part of Rahman.

LIABILITY

7.  According to Rahman, he returned to Hong Kong in 2012 after spending 10 years and starting his then family in Denmark.  He soon started working as a general labourer here, and as such for Tong Kee on 2 October 2013.  Rahman was first assigned to do drilling work and moving goods by wheelbarrow to and from the tunnel site.  A month later, he was assigned to undertake the work during which he eventually injured his lower back.  The photographs in evidence gave us an idea of the exact location where Rahman and his co-workers worked.  For one shift of work, some 1,600 to 2,000 bags of cements would be moved.

8.  Pallets of bags of cements would be delivered by forklift truck next to the platform.  The bags would be unloaded one by one from the pallet and stacked on the edge of the platform.  The bags would then be moved one by one from the platform onto the conveyor belt, which led to the tunnel.  The conveyor belt was no more than a metre away from the platform. Rahman and one of his co-workers would keep unloading the bags of cement onto the platform while the other co-worker would keep moving the bags onto the conveyor belt.  The workers all manually moved each bag by their own selves.  But they would rotate in position.

9.  During the 10 minutes immediately before pain struck Rahman, the three workers had unloaded 2 pallets of 80 bags of cement in total and were unloading the third pallet.  After he had moved 4 to 5 bags from this pallet, Rahman felt severe pain in his back.  He could not move and had to lie down.  The foreman on site approached, and Rahman was later sent to the hospital by ambulance.

10.  An overview of the Rahman’s case is that this is not so much about whether he had adequate instruction in respect of the body posture to be adopted in safely handling the weight involved in the task.  Nor could he really suggest that he was ignorant of what body posture to adopt in order to safely handle such weight.  He admitted in court that he had previous experience of handling weight when working as a construction site worker.  He had received basic training in that respect before obtaining his construction safety training certificate.  The evidence did not demonstrate that the physical removal of those bags of cement per se, apart from their very weight, involved any peculiar skill that was not expected in the manualhandling of other weights that Rahman had previously undertaken.  Rahman did not actually say that it was because of the lifting of a particular bag of cement that his back was sprained.  If Rahman’s case were to end there, it may be said that the workers could have been left to take care of themselves, including deciding how the work could be carried out amongst themselves.

11.  However, Rahman’s case is precisely that it was really not up to them, and they were subjected to a mode of operation dictated by the foreman on site.  According to Rahman, when he started working at the site, four workers wereoriginally assigned to carry out the very work that he and his two co-workers were subsequently assigned to take over. The work involved heavy labour, and became unreasonably burdensome when the workmen were under the constant pressure and instruction from their intermediate foreman to work fast, and when there was no matching manpower to maintain that or sufficient interval rest for the workmen.  This was how the system of work was said to have failed.

12.  Much was said about whether it would have been safer and easier, had each bag of cement been moved by two workers.  I have no doubt it would have been.  But Rahman and his witness, Shauib, testified to the constant pressure from the foremen called Sun Koh and Ah Wai (Alan Lau) on the workers to work fast.  According to Rahman, Lau shouted at them and criticised them for being too slow in unloading the bags of cement and feeding the conveyor belt with the bags of cement.  That also happened when the workers were seen moving a bag of cement by two of them together, which the foreman somehow considered to be less than efficient and slowing things down. All the workers could do in the circumstances was to rotate amongst themselves to level out the burden of moving each bag singlehandedly.  According to Shuaib, he would sometimes come to help at his initiative.

13.  Mr Gidwani suggested that Rahman and his co-workers merely took a shortcut and moved each bag singlehandedly out of their own convenience.  The suggestion is difficult to accept.  As Mr Lim put it, one asks why the workers would have taken upon themselves to do that, when the load was so heavy that the relative ease in moving the load by two workers instead of one should have been obvious.  I do not believe they would have done things the hard way, had they had the choice. As mentioned, Rahman’s case is exactly that the workers did not understand they actually had the choice at the time.  It was also the evidence of Rahman that his requests for more helping hands had been ignored.

14.  Chui, who gave evidence for Tong Kee, was at the time the project manager on site.  He denied that the workmen at the time were under time constraint to work.  He said no specific work target was set in terms of the number of bags that had to be moved within a period of time.  But the undisputed fact was that within just 10 minutes immediately before pain struck Rahman on the day, some 80 bags from two pallets as well as 4 to 5 bags from the third pallet had already been moved.

15.  Chui was responsible for managing and monitoring the progress of the construction work.  In court, he explained that over 10 sites were concurrently under his supervision at the time.  A site agent and several foremen were stationed at this particular site, and he visited the site once a month to attend meeting.  As to the system of work at the site, his observation and suggestion on site was essentially ad hoc in nature.  He was not the direct supervisor of the workers.  Whilst he might be in a position to say what he did or did not expect a safe system of work to be like generally, he possessed no personal knowledge in respect of what system of work was being implemented by and under the supervision of his subordinate foremen at the material time.

16.  Tong Kee must know the case and evidence of Rahman at some point prior to the trial.  So did Chui, as he accepted in court.  Notwithstanding that, the foremen whom Rahman alleged to have supervised them at work in the manner as mentioned above, was not called to testify.  Mr Lim submitted that this is a clear case for the drawing of adverse inference against Tong Kee on the basis of its failure to call the relevant witness to rebut Rahman’s case in such an important respect.  He submitted that there was not only the failure to locate and to call crucial witnesses but also the lack of satisfactory explanation for such failure [1].  Mr Gidwani was only able to explain that the witnesses were not readily available.  I do see the strength of Mr Lim’s criticism.

17.  Even without resort to the drawing of adverse inference, there was indeed no direct evidence to contradict what Rahman and Shauib said in respect of how they were demanded or expected by the intermediate foremen to work at the material time.  The suggestion that Shauib was not independent and he came to give corroborating evidence merely to help Rahman did not come close to shaking the witness’s credibility.  I do not agree with Mr Gidwani that the workers’ evidence was inherently implausible.  I find on balance what they said in respect of how Rahman and his co-workers were required to carry out their work at the material time to be the facts.

18.  Was the system of work like what Rahman described reasonably safe?  Was Tong Kee in breach?  The answer depends on whether it was reasonably foreseeable that accident or injury could occur as a result [2].  There was no suggestion that similar accident had happened before.  Chui also pointed out in his statement that the workers managed to complete the assigned tasks without difficulties during the days prior to the accident.  Yet that fact is but one factor, and itself alone did not absolve the employer from its duty under the statute or common law.  Nor did the fact that Rahman happened to have pre-existing degenerative changes and might therefore be more vulnerable to the potential of sprained back than an average workman who had no such condition.  I find that the risk of injury at work under such working condition was reasonably foreseeable.

19.  Tong Kee was responsible for the working condition created by the immediate supervisor of the workers, including Rahman, at the material time.  There is no suggestion, and it cannot fairly be suggested, that nothing could reasonably have been done to alleviate the risk of working under such condition.  As mentioned, the team of three, including Rahman, was assigned to take over what used to be undertaken by a team of four workers.  They should not be expected to move such load singlehandedly.  Sufficient manpower should and could have been deployed to avoid that.  Allowing more frequent interval rest would also have been reasonably practicable.  I do not agree with Mr Gidwani that Rahman’s case suffers from the lack of proper pleading as to the alleged breach.  Failing to do what could have reasonably been done in the circumstances, Tong Kee was in breach of its duty as the employer, under the relevant statutes and generally the duty not to be negligent.

20.  In the circumstances, I find against Tong Kee on liability.

21.  As to the defence of contributory negligence, I do not find from the evidence any act of Rahman in the course of his work in the circumstances as found above which could be said to be so out of the ordinary that it might have contributed to his injury.  He just did what he understood he was expected to do and in the manner he was expected to do so at the material time [3].  Mr Gidwani referred to So Chung Kwong v Ho Kuen t/a Brilliant Design and Decoration Co & Anor [2000] 3 HKLRD 241, but that case is distinguishable from the present case on the issue ofwhether or not the plaintiff had an entirely free hand and was under pressure to handle the weight singlehandedly.

22.  In the circumstances, I find no contributory negligence.

QUANTUM

23.  The parties managed to agree on various elements of quantum, subject to liability, when the trial began.

INJURIES AND TREATMENT

24.  The examination at the public hospital revealed that there was lumbar muscle spasm and tenderness over the lower lumbar spine of Rahman.  X-ray of the lumbosacral spine showed no fractures.  He was discharged after injection of analgesics and physiotherapy.  The diagnosis was back sprain.

25.  Because of alleged persistent pain and pain radiating to the lower limb, Rahman has attended the public outpatient clinics several times.  In March 2014, he began to consult the orthopaedic and traumatology department of the public hospital.  Medication was prescribed.  Physio­therapy was given over a period of about 9 months.  Occupational therapy was given over a period of about 3 months.  MRI was performed, which confirmed no fracture or structural damage.  However, Waddell’s signs and exaggerated pain on light touch were recorded during consultations in 2014 and 2015.

26.  Sick leave expired in October 2015, 19 months after the injury.  According to Rahman, he tried to resume his pre-accident job but did not manage.  In November 2015, Rahman began working as a security guard, and as such as at today.

27.  Rahman still occasionally attended the public outpatient clinics and received medications.

ORTHOPAEDIC EXPERT EVIDENCE

28.  Rahman was examined on 4 October 2016 by Dr Lee Po Chin (“Dr Lee”) and Dr Henry Ho Ching Lun (“Dr Ho”) instructed on behalf of Rahman and Tong Kee respectively.  The two orthopaedic experts produced their joint report dated 16 November 2016.

29.  The experts shared the following observations:

(1)   Rahman suffered from a sprain injury of the back, but limited to the soft tissue.

(2)   X-ray of the lumbar spine showed degenerative changes, which are pre-existing.

(3)   MRI showed no disc herniation or spinal stenosis, and therefore should not have caused radiating pain to his lower limb despite his low back pain.

(4)   Rahman had received appropriate and adequate treatment.  He has reached maximal recovery and no further treatment would be necessary.

(5)   Rahman walked with a stick.  He could perform all functional tests with some limping.  There was mild tenderness and muscle guarding but not muscle spasm.  Trunk movements were limited in all directions with complaint of pain at the end range.  Both straight-leg raising and flexion of knee produced back pain.  The cogwheel muscle weakness of the left big toe and left ankle demonstrated could not be fully explained by reference to the calf measurement and comparison.  This was highly suggestive of suboptimal effort.

(6)   The lower limb reflexes were normal.  The decreased sensation of the whole left lower limb demonstrated was inconsistent with compression of a specific nerve root in the lumbar spine. The simulation tests showed that axial compression on the shoulder produced mild back pain while passive rotation of the pelvis and elevation of the left arm increased back pain.  These inconsistent findings were highly suggestive of non-organic pain and symptom exaggeration.

30.  The experts differ in their opinion in following respects:

(1)   pre-existing degeneration;

(2)   residual disability;

(3)   working capacity; and

(4)   sick leave.

Pre-existing degeneration

31.  Dr Lee opined that the pre-existing degeneration of Rahman belonged to either of two scenarios: that it would not produce any symptom or alternatively it might produce symptoms due to the natural progression of degeneration and other vicissitude of life so that he would eventually develop symptoms similar to his present ones.  It is likely that he would remain asymptomatic for up to 20 years or more but for this accident.

32.  Dr Ho opined that the pre-existing degeneration of the lumbar spine of Rahman would likely progress naturally with time and there was a strong possibility that his back would reach its present state by the time he reached 55 years old even without the occurrence of this accident.

Residual disability

33.  Dr Lee opined that Rahman would have some degree of residual pain in the lower back.  There would be potential limitation in the ability to lift heavy weight.  This was however qualified by the presence of non-organic signs which suggested psychosocial elements influencing his performance during the medical examination.

34.  Dr Ho opined that Rahman should have recovered well from the accident.  There was no suggestion of focal neurological deficit or evidence of structural disruption of the lumbar spine.  Any possible residual back symptoms should be quite mild.

Working capacity

35.  Dr Lee believed Rahman might have difficulty in returning to his pre-accident work because of his impaired ability to lift heavy weight.  If Rahman would do that, he would be advised to take care and to adjust the maximum weight to handle.  If this became not possible, he should switch to jobs requiring less physical demand, such as security guard or warehouse or shop attendant.

36.  Dr Ho opined that Rahman should be able to resume his pre‑accident duties, and his ability to perform physical tasks such as lifting, climbing and squatting should not be significantly reduced.  The expert alsoadvised Rahman to be careful with his back posture during such movements.

Sick leave

37.  Dr Lee considered that sick leave given by the treating doctor was appropriate, in view of his persistent pain and the necessary investigation into his condition.  Dr Ho however considered that reasonable sick leave should be no more than 3 months for the recovery of the back muscles of Rahman.

PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

38.  The parties agreed on the sum of HK$150,000 for this head of claim.

LOSS OF EARNINGS

39.  Rahman claimed a monthly income consisting of that from Tong Kee and that from being part time security guard.  At the beginning of the trial, the parties agreed that his average monthly earnings from Tong Kee at the time of the accident was HK$18,693.  The claim for pre-trial loss of earnings as part time security guard was not pursued.

40.  It was also agreed between the parties that had it not been the accident, Rahman’s income as a construction site general labourer would have been HK$21,123 per month (taking into account a 13% increment) by now.  The median monthly income of HK$19,908 over this period will be adopted for calculation.

41.  But for the accident, Rahman would have earned (inclusive of MPF benefits) since the accident until now:

HK$19,908 × 1.05 × 54 months = HK$1,128,783.60.

Pre-trial loss

42.  Sick leave was given to Rahman until 18 August 2015, some 19 months in total.  According to him, he attempted to resume his pre-accident job after the expiry of the sick leave but failed to cope.  Rahman has worked as a security guard since early November 2015.

43.  Dr Lee considered that the 19 month long sick leave given by the treating doctors was justified on the basis that the further investigation arranged by the hospital into Rahman’s complaint about persistent pain was necessary to exclude or confirm the underlying pathology of the pain. Dr Ho opined that 3 months would have been sufficient for Rahman’s back muscles to recover, and hence, in his view, the appropriate sick leave of the same duration.

44.  I am not without reservation about justifying sick leave merely on the basis of a patient’s complaint and investigation.  Sick leave in the context of assessment of common law damages should be more justified bythe need for treatment and leave from work during treatment.  In the presentcase, Rahman was given physiotherapy in February 2014, the last one being in November 2014.  Three months after his injury, Rahman was given occupational therapy in April to July 2014.  Considering the expert opinion and the circumstances of this case, I am prepared to accept Mr Lim’s fall-back submission in court that continuous sick leave plus time for resuming employment (or, as discussed below, securing alternative employment) amounting to a period of 12 months would be reasonable.

45.  The next question is whether Rahman should have been able toresume his pre-accident job after the sick leave mentioned above.  Rahman says he could not. Much was said about the genuineness of Rahman’s complaint about weakness in his lower limb as a result of his injury. Rahman was also cross-examined in respect of the genuineness of his limp and his use of the umbrella as a walking aid.  The scepticism first arose out of the hospital’s record of his use of walking aid only months after the accident.  Reference was also made to the very umbrella, and the conditionof its tip, that he brought to court during the trial.  However, such study by reference to the condition of the umbrella was not sufficiently and properly explored, and I say no more on that.

46.  As mentioned, the experts were ad idem regarding the medical findings in respect of Rahman’s complaint about lower limb weakness as aresult of his back sprain.  They shared reservation about such complaint.  However, Dr Lee eventually did not (or at least not predominantly) base his assessment of Rahman’s ability to resume his pre-accident job on his alleged lower limb disability.  Dr Lee referred to Rahman’s impaired ability to lift weight after the injury.  On this, whilst Dr Ho opined that Rahman should be able to resume his pre-accident job,he went on to say that Rahman’s ability to lift, climb and work in a squatted position should not be significantly reduced.  Both experts also advised that Rahman had to take care with his back posture during movement at work now.  I accept Mr Lim’s submission that fairly read, the opinion of Dr Ho did not actually negative Dr Lee’s opinion about the existence of limitation in Rahman’s ability to handle weight at work.

47.  Insofar as work at construction sites is concerned, Mr Gidwani suggested that not all would involve heavy labour as Rahman’s pre-accident work did.  This might well be true, but the opportunities of such other lighter jobs were not sufficiently, if at all, explored in the evidence.  The suggestion that Rahman could now work as a mason (apparently by reference to the medical record) was denied by him, andnot really substantiated by other evidence.  A realistic view must be adopted.  Rahman has no particular skill working at construction sites than providing general labour.  Considering what a worker like Rahman would generally be expected to manage at work in construction sites by his employer(s), I am prepared to accept Mr Lim’s submission that Rahman could not realistically be expected to be gainfully employed to work as a general labourer in construction sites anymore because of his impaired ability to handle weight.  Mr Lim referred to a couple of authorities [4], which were examples of the court’s similar approach to such consideration.

48.  There was no evidence of any other alternative employment which Rahman should be able to secure to yield an income similar to that before the accident.  The suggestion that he could have worked as a cook, which was his job back in Denmark, could not be fairly explored without the issue properly introduced and the relevant evidence properly disclosed before the trial.  In the circumstances, I do not find that Rahman has failed to mitigate his damage and loss by resorting to his present sedentary job as a security guard.  Of course, as found above, he could reasonably have done so earlier than November 2015.

49.  In line with my finding in respect of the reasonable sick leave period, I see no reason why Rahman could have not taken up the job as a security guard since January 2015.  He has since November 2015 earned on average HK$10,920 per month until his income increased to HK$12,432, but just for the month of July 2017.  From August 2017, Rahman has been earning on average HK$11,544 per month until now.  Doing the best I can, I adopt the same average monthly rate of HK$10,920 for the purpose of calculating the income that he would have earned between January and November 2015 as well.

50.  His pre-trial loss of earnings (inclusive of MPF benefits) was:

HK$1,128,783.60 − HK$ (10,920 x 30 months + 12,432 + 11,544 x 11 months) x 1.05=  HK$638,416.80.

Future loss

51.  As at the time of their joint report, Dr Lee opined that Rahman’s degeneration would have become symptomatic after 20 years or more whereas Dr Ho opined that the degeneration symptoms would have disabled Rahman from continuing his pre-accident job at about the age of 55 (ie, in about 12 years), but for the accident.  The experts’ respective opinion must be considered in the light of the nature of work that Rahman would have continued to perform but for the accident, be it for Tong Kee or at any other construction contractors.  It suffices to say that work of such nature would have only been instrumental to the natural progress of the pre-existing condition of Rahman in the years to come in the ordinary course of events.

52.  The accurate way of taking into account the reduction in the working lifespan as a result of pre-existing degeneration in the assessment of future loss is to adopt a reduced multiplier [5].  Mr Lim submitted that in the absence of clear indication as to which of the two experts’ projection might be more accurate, a fair way of addressing the potential progression of the pre-existing condition of Rahman would be to adopt the halfway house approach.  Within the 10-year range between the timing as projected by thetwo experts, Mr Lim submitted that Rahman’s pre-existing condition would have become symptomatic even without the accident by 60 years old.  Considering all the circumstances, I agree.

53.  The parties agreed that the appropriate multipliers for Rahman, if he would be retiring at the age of 55, 60 and 65, should be 8.78, 12.34 and 15.41 respectively.  Following from the above, 12.34, as Mr Lim submitted, is adopted as the applicable multiplier.

54.  Rahman’s future loss of earnings (inclusive of MPF benefits) would be:

HK$(21,123 − 11,544) × 1.05 × 12.34 × 12 months=  HK$1,489,381.23.

LOSS OF EARNING CAPACITY

55.  This was agreed to be HK$80,000.

MISCELLANEOUS SPECIAL DAMAGES

56.  This was agreed to be HK$7,875.

CONCLUSION

57.  In summary:

PSLA                                                  HK$      150,000.00

Loss of earnings (MPF included)

      Pre-trial                                         HK$      638,416.80

      Future                                           HK$    1,489,381.23

Loss of earning capacity                       HK$        80,000.00

Miscellaneous special damages             HK$         7,875.00

                                                           ________________

                                                            HK$    2,365,673 (say)

Less   Employees’ compensation        ( HK$       425,594 )

                                                           ________________

                                                            HK$    1,940,079

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58.  There will be interest on general damages (PLSA) at 2% per annum from the date of writ to today, and interest on special damages (pre‑trial loss of earnings and miscellaneous special damages) at 4% from the date of accident to today.  Interest from today shall run at the judgment rate until full payment.

ORDER

59.  Judgment is entered against Tong Kee in the above sum with the aforesaid interest.  Tong Kee shall pay Rahman’s costs of this action, including any costs reserved, to be taxed, if not agreed. Rahman’s own costs shall be taxed in accordance with legal aid regulations. This costs order is nisi, and shall become absolute in the absence of application to vary within 14 days.

60.  I thank counsel for their assistance.