HO WING SAI v. WONG MUK HUNG t/a LAKE FAT TRANSPORT CO

HCPI 787/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.787 OF 2000

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JUDGMENT

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Background

1. This is a claim in damages for, inter alia, negligence, by one HoWing Sai (“the plaintiff”), against his former employer, Wong Muk Hung trading as Lake Fat Transport Company (“the defendant”).

2. At the material time in 1998, the plaintiff was employed by the defendant as a driver/delivery worker.  His main duty was to drive the company truck to collect rolls of cloth and deliver them to and from a dyeing factory in Fu Tin Building.  The defendant’s company was located in the same building and that particular dyeing factory was its main customer.  Apart from the truck, the defendant also provided the employers a number of trolleys for the carrying of the rolls to and from the truck. 

3. On 24 July 1998, the plaintiff and his fellow workers were instructed by the defendant to collect rolls of cloth from the factory on the 19/F, Tung Luen Building, Yip Shing Road, Kwai Chung.  The plaintiff drove the truck to the ground floor of the building and proceeded to collect the rolls of cloth from the 19/F to the truck.  When he attempted to raise and throw a particular roll of cloth onto the top of the pile on his trolley, he strained his back and sustained injuries.

The plaintiff’s case

4. The plaintiff averred that his injuries were caused by the negligence of the defendant, who had inter alia, failed to provide proper training to him, failed to provide a safe system of work, failed to heed the frequent injuries occurred to the workers, including his recent incident of similar back injury that took place in June 1998.  The plaintiff also averred that the defendant had been negligent in that he had encouraged “an unsafe system of work whereby employees regularly overloaded the trolleys with rolls, causing the rolls to be stacked so high that injuries were likely to occur when employees attempted to place rolls on the top of the stack.”

5. The plaintiff also alleged that there had been a breach of the statutory duty and particulars were stated in paragraph 7 of the Amended Statement of Claim.  The plaintiff claimed damages and the “Revised Statement of Damages” was filed on 19 November 2003, asking for a total amount of $2,619,770.80.

The defence case

6. The defence denied liability.  In the Amended Defence dated 6 October 2003, the defendant stated that the plaintiff was an experienced delivery driver and he should be able to handle the driving and the work without any training or supervision. 

7. The defence also raised, in the alternative, that the plaintiff’s injuries were caused wholly and/or contributed by his own negligence, and the particulars were as follows :

(a)   failed to exercise any or any sufficient skill whilst engaged upon his work;

(b)   failed to take any or any adequate precaution for his own safety whilst loading or unloading rolls of cloth;

(c)   failed to cooperate with his colleagues whilst loading rolls of cloth onto the trolley;

(d)   failed to report to the defendant his back condition after the alleged incident of back strain on 23 June 1998; and

(e)   failed to take reasonable care for his own safety and whereby exposing himself to a risk of injury.

8. The defence also raised the point that the plaintiff had failed to mitigate loss and damage by reason of his refusal to follow the recommendation of the orthopaedic specialist in Tuen Mun Hospital to undergo the operative treatment on his spine to remedy his condition.  The defendant’s response to the Revised Statement of Damages, subject to the contested issues of liability and/or contributory negligence, was stated in the “Answer” dated 4 February 2004.  The defence stated that the appropriate amount, even assuming liability could be proved, would be about $170,000.

The plaintiff’s evidence

9. The plaintiff had prepared and filed Witness Statements which he had adopted in his testimony in court. 

10. He stated that he was born on 8 October 1971.  He was 26 years and 9 months’ old at the time of the accident.  He had been working for one Wing Fat Company from 1989 to July 1995, then the company changed its name to Lake Fat Transport Company.  However, the company owner remained the same and the nature of his duties were the same, up to the time of the accident.

11. The plaintiff said he had also injured his back on 22 June 1998.  He sprained his lower back while he was unloading rolls of cloth by throwing them from the truck to the ground.  He said that he had informed the defendant the next day who had released him to seek medical help.  In fact he was driven to see a doctor by his colleague.  He received full pay for his sick leave which covered a period of 10 odd days from 23 June 1998 to 4 July 1998.

12. The plaintiff gave details about his routine duties in his witness statement.  He said that everyday his boss would give him some delivery notes, based on which he would drive his colleagues to work and took along six or seven trolleys.  Each of them had to fully load his own trolley with about 25 to 30 rolls of cloth, making a pile up to around six feet high, before placing them inside the compartment of the truck. 

13. The plaintiff stated that he had previously alerted the defendant about the weight of the fully loaded trolley which might be too heavy even for the hydraulic platform of the truck, but the defendant simply told him to continue to work.  The plaintiff pointed out that the defendant had never provided any training regarding safe loading and unloading or about the prevention of industrial accidents.

14. The plaintiff gave details about what had taken place at the time of the accident.  He said that on that particular day, the defendant had assigned three workers (including the plaintiff) to go to Tung Luen Building in Kwai Chung to collect rolls of cloth for delivery to Fu Tin Building.  The plaintiff drove his two colleagues to the building.  They went up to the 19/F with the trolleys and started to put the rolls of cloth onto their own trolleys.  When he was throwing a roll of cloth onto the pile on the trolley, he injured his back.  The roll of cloth was about 50 lbs each and they were already stacked up to about five to six feet high on the trolley.  He would have to raise the roll with his bare hands and twist his body in throwing the roll onto the top of the pile.

15. The plaintiff added that many workers had received similar injuries before and the defendant was aware of it, but he simply ignored it.  After his injury, the plaintiff said that the system of work remained the same.  The plaintiff then gave particulars about his physical condition after the injury, the treatments he received and the impact of the injuries on his employment. 

16. Regarding his present condition, the plaintiff testified that he still suffered from back pain and numbness in the left calf area.  He pointed out the painful spot was on the left side of his lower back.  He would experience back pain once a week and feel numbness in the calf region several times a week.  He said that his condition was not much different as compared to the past.  The back pain, occasionally severe, would disturb his sleep.  He would also wake up with stress in the back.  He had to take pain-killers once or twice a month.  He said he was no longer able to do heavy manual work, but he could drive and he now worked as a dump truck driver.  However, he had to stop driving occasionally when he felt pain in his back or calf.  He agreed that he had been advised to have operation on his spine regarding the pain, but, he recalled that the doctors told him that there would be risk in every operation and the recovery would not be guaranteed nor the improvement be hundred percent.

17. The plaintiff also gave evidence about the details of how the salary was calculated while he was working for the defendant.  He said that he was paid mainly by cheques and occasionally in cash.  His average income at the material time would be around $14,000.  After he had left the defendant’s employment, he could only get an unsteady income of about $8,000 to $10,000 per month. 

The cross-examination of the plaintiff

18. In his cross-examination, the plaintiff agreed that he had nine years’ experience in doing the same type of driving/loading work for the defendant.  There were three types of trolleys available for the workers’ use.  He would first estimate the amount of rolls that had to be handled and he would decide how many trolleys to be taken along.  But he could not recall how many rolls of cloth he had to deliver on the day of the accident.

19. The plaintiff agreed that he had no fixed off-duty hours, and as long as he had finished the delivery, he could be off.  He accepted that he would have to do more rounds of stacking if he did not fully load the trolley on each occasion.

20. The plaintiff was questioned about his complaint to the defendant concerning the danger of overloading the truck platform.  He clarified that his complaint was in relation to the time when large rolls were being delivered, not the smaller ones he was dealing with on the day of the accident.  He disagreed that his Witness Statement was wrong regarding the nature of the complaint.  He pointed out that the truck platform was indeed too old and even the garage worker said that it had to be replaced, but the defendant declined to do so.

21. Defence counsel raised with the plaintiff that he could have adopted the method of unloading some of the rolls when they arrived at the truck, place the trolley onto the truck and then put the remaining rolls back onto the pile inside the truck.  The plaintiff said that the circumstances would not allow it.  He said the trolleys would have to be pushed into the truck compartment fully-loaded as it would be difficult to place the other rolls on top of the piles after the trolleys had been parked inside the compartment as there would be a lack of space to reload the rolls.

22. It was put to the plaintiff that he had never made any complaint about the platform of the truck requiring repairing.  The plaintiff disagreed.  It was put to him also that each trolley could hold only 15 to 18 rolls of cloth, and physically it could not go beyond that capacity.  The plaintiff disagreed, stating that at the time when he was injured, each trolley was to take up 20 to 30 rolls.  It was also suggested to the plaintiff that he deliberately decided to overload the trolley so as to save an extra journey to and from the factory.  The plaintiff disagreed.  He also disagreed with the suggestion that the trolley with the rolls would be less than five feet high from the ground.  The plaintiff said he remembered that the height of the pile had reached his eye level and his height was about 5 feet 10-11 inches.

23. The plaintiff was cross-examined in some detail about the salary he received from the defendant.  The plaintiff accepted the contents of the bank statements of Standard Chartered Bank which had been used for depositing his salaries.  He agreed that for the month of June 1998, i.e. the month before the injury, his income was only around $8,900.  He said it was because there was less work in that month.  Then he worked for a few days in October 1998.  Afterwards, he was made redundant by the defendant.  That was not because of his injuries but due to the declining business of the defendant.  The main customer, the dyeing factory which was the main source of work for the defendant’s business, had moved to China.  That was the reason for the drop of business in June 1998.

24. The defence suggested that even if the plaintiff was not injured, he would be paid less than $9,000 from July 1998 onwards until the defendant closed its business in October 1998.  The plaintiff said that after the injury, he was paid on the basis of work-done and no longer on monthly salary.  So he could not say whether he would be paid $9,000 or less in the subsequent months.

25. The defence also queried the plaintiff on the issue of his injury and treatments.  He recalled that he had received 17 sessions of physiotherapy and resumed work in May 1999 as an electricity apprentice.  Prior to that, the government doctor had advised him to try to resume work but told him that he should avoid doing heavy manual work.  Since May 1999, the plaintiff said he would not even attempt manual labour because of the psychological pressure, but he could drive, despite the spells of pain.  Between September 1999 and May 2000, he said he had worked as a driver to send workers to construction sites.  Sometimes he had to carry light tools and implements also.  He did that until the project under the contract was completed.  He disagreed that he was employed as a manual labourer by Belfinger and Berger (“B and B”).

26. Defence counsel challenged the plaintiff on this and pointed out that according to the tax return filed by the company, the plaintiff was described to be a general labourer.  The plaintiff said he had never seen the document before.  He explained that his foreman named him a labourer because a driver would attract a higher pay : labourers were paid a daily wage of $420 while drivers were paid $500.  In other words, he said he got a labourer’s pay while he worked as a driver.

27. It was put to the plaintiff that he had been working as a labourer on the site and he was able to do heavy manual work.  The plaintiff disagreed with the suggestion.

28. On the issue of the proposed operation, the plaintiff reiterated that Dr Lau had advised him that all operation carried risk but he did not ask how big the risk was.  He said he was afraid that after the operation he might suffer more or even become a handicap.  He said he actually could not recall now what the medical advice was about the chances of reducing pain by operation as he had been seen by many doctors.  It was suggested that the reason why he had refused surgery was because he did not suffer from the kind of pain he had claimed and he had exaggerated his symptoms.  The plaintiff disagreed.  It was also suggested that he had stopped further treatment after March 1999 because his condition had improved and, by April 1999, he should be able to return to heavy manual work.  The plaintiff disagreed, saying that it was because he had no money to see a doctor.

The defence evidence

29. As to the defence, two witnesses were called : Dr Cheng and Wong Muk Hing, the defendant.  The defendant himself had also given witness statements, and he adopted the contents in court.   

30. The defendant said he took over the business in 1995 and had about 13 workers.  He accepted that the plaintiff was involved in the accident in July 1998, but he seemed surprised and confused when being questioned about the earlier accident in June 1998.  He agreed that he had closed his business in October 1998 and the plaintiff was made redundant.  He said he usually paid the salaries by cheques, but he did not rule out the possibility of payment by cash cheques sometimes.  As to cash, he recalled doing that only once.  Regarding the plaintiff’s evidence that he had made a complaint about the platform of the truck, he simply said that all the repair was carried out by one particular garage and he needed not be informed of any repair done.  As to the trolleys he had provided the workers, he said they were about five feet five to six inches in height.

The cross-examination of the defendant

31. In his cross-examination, the defendant informed the court that he still had the records of salary payment from 1995 to 1998 but they were at home.  He said he did not know why they were not produced.  He said that his recollection was that he had given them to his lawyer.  In relation to the average salary of the plaintiff at the time of the accident, he said that it should be around $8,000 to $9,000, but he could not recall the exact figure.  It was pointed out to him that the figure pleaded by his legal representative for the period of July 1997 to June 1998 was $12,000 odd, but in Form 2 he had written down the salary to be $10,000.  In response to this, the defendant replied that it was “more or less” and “around that sum”.  Eventually, he said that due to lapse of time, he could not recall whether the figures were wrong.

32. The defendant was then referred to the agreed schedule of sick leave in which there were three entries showing the plaintiff being on sick leave from 23 June to 4 July 1998.  The defendant said that he was not aware of it and explained that the plaintiff had not informed him that he was injured during work.  He seemed to be puzzled when being asked about the plaintiff’s previous back injury and he denied that the plaintiff’s back was injured on two occasions.

33. Regarding the system of work, the defendant admitted readily that there was no particular system at all.  He frankly stated that the method of work remained the same from the beginning to the end.  He agreed that in order to stack up the rolls, lifting was required to go beyond the shoulder level.  He accepted that the plaintiff had injured his back when lifting a roll of cloth weighing about 50 lbs and it had to be placed on top of the trolley.  He said it never occurred to him that there might be risk of injury.  He said that shorter trolleys and other devices specifically designed to raise the load could not be done, as the latter might be too heavy for the truck or that the factories receiving the rolls might not have the matching devices.  In any case, he had never thought of designing such devices to deal with the problem of heavy load.  He agreed that he would just tell his workers to use the trolleys to collect and deliver the rolls.  He never thought about designing a safer method.

34. He said that he was not aware of the regulations promulgated in July 1998 regarding manual work.  He never applied his mind at all about the shape, size and weight of the load handled by the workers.  He would not comment whether the plaintiff’s injury was due to his own fault.  He said he did not know.  However, he accepted that the plaintiff had not departed from the usual manner of work.

The medical evidence

35. The above covered the evidence of the two primary witnesses on the factual circumstances of the case.  There was also medical evidence presented by both sides.  The medical reports by Dr Lau, Dr Lam and Dr Liang were agreed between the parties.  Two doctors were called to testify : Dr Au for the plaintiff, and Dr Cheng for the defence.  Dr Au had prepared two reports and Dr Cheng produced one.  Both doctors had examined the plaintiff and stated their views in the respective medical reports.  Their diagnosis and conclusions had been subjected to vigorous cross-examination by the other side. 

36. Counsel’s written submissions had already covered the relevant medical issues extensively, I would not go through the details here.  Suffice to say that Dr Au took the view that the injury suffered by the plaintiff was “disc protrusion”.  It was the protruded disc which impinged on the L4 root on the left side resulting in the sign and symptom of L4 radiculopathy.  That was Dr Au’s view in November 1999, and when he examined the plaintiff again in 2003, he came to the same conclusion.  However, Dr Cheng stated that, in his opinion, there was no clinical indication of a L4 radiculopathy due to a protruding disc.  He would “humbly submit that Mr Ho suffered from a simple sprained back”.  That was the conclusion stated in his report dated 11 December 2000.  Dr Cheng added that there was no need for the plaintiff to change his job, and a period of six months’ sick leave was reasonable for his sprained back.

Further expert evidence : Mr Steve Rowlinson

37. The plaintiff had arranged Mr Steve Rowlinson, an expert on industrial safety, to testify.  However, Mr Lim objected.  He contended that, as a preliminary issue, the report by Mr Rowlinson should be excluded as the matters covered in his report belonged to the “ultimate issue” category to be decided by the trial judge and no expert evidence would be required.  Mr Wright for the plaintiff argued that the report had been disclosed a long time ago and included in the bundle.  He said he was surprised that this issue was taken just before the trial.  He pointed out that it was admissible expert evidence which could assist the court on how the object of the Ordinance could be implemented.  At the end, I ruled the report and his evidence admissible.  The plaintiff then called Mr Rowlinson, a professor of the Department of Real Estate and Construction at the University of Hong Kong, to give evidence regarding the contents and the related issues on his report.  He elaborated on the appropriate ways about how heavy loads should be lifted above shoulder level and how mechanical means could be utilized to reduce the risk of injury.  He pointed out that it was better to have two people to do the lifting and alternatively, a simple pallet to be used as a base for the rolls would make the load more stable and coherent.  He stated that lifting of heavy objects of about 50 lbs above shoulder height would mean a high risk of back injury, particularly when the motion of lifting and twisting was involved.

The defence submission

38. Mr Lim accepted that if the court believed the plaintiff’s account of how the accident had happened, then liability would be established as it would be due to the fact that the plaintiff had to work without a safe system of work.  But Mr Lim submitted that the plaintiff was not a credible witness.  He had been doing the same work for almost nine years and it was unlikely that he could be injured now.  He should have sufficient experience to handle the work and the lifting of the rolls.  It was his choice to load the trolley up to over five feet and thereby receiving injury.

39. Mr Lim stated that the court should at least find contributory negligence on the part of the plaintiff as “the injured party did not in his own interest take reasonable care of himself and contributed by this want of care, to his own injury”.  Mr Lim said that the plaintiff had been inconsistent in his account regarding the hydraulic loading platform and that he had made a complaint to the defendant.  He submitted that the plaintiff had fabricated the details in order to support his claim and to try to explain away why he fully loaded the trolleys.  Mr Lim took the view that there was incentive for the plaintiff to make fewer trips with fully laden trolleys, and few trips meant he could get off work earlier.

40. As to the evidence of the medical doctors, Mr Lim stated that the defence case was that the injury was simply a sprained back with damage only to the soft tissue.  Whilst there might be a bulge or prolapse of the L4 disc on MRI picture, there may or may not be impingement on the L4 nerve root, but it was the impingement on the L4 nerve root that was the basis of the plaintiff’s case and that was the cause of the pain.  Mr Lim contended that the MRI picture was not conclusive and one had to look at the clinical picture which suggested that there was no objective signs of impingement of the L4 nerve to give rise to radiculopathy.  He argued that Dr Au had turned the “uncertain” finding of Dr Liang who stated that the left L4 nerve root may be impinged, into a definite conclusion that the protruded disc had impinged on the L4 nerve root.  Mr Lim then went through the different aspects of Dr Au’s diagnosis and pointed out the doubtful points such as the muscle wastage.  He stated that Dr Cheng’s opinion should be accepted by the court.

41. Mr Lim also referred to a number of matters which, in his view, would show that the plaintiff was exaggerating his symptoms and was simply chasing after a larger reward.  These were :

(1)	The findings by Dr Lau who said that the plaintiff had improved after an intensive course of physiotherapy and further recovery could be expected.  (However, he also said complete recovery may not be achieved.)
(2)	The employer of the plaintiff in B and B (from September 1999 to April 2000) described him to be a general labour in the tax return.
(3)	The refusal on the part of the plaintiff to undergo surgery.
(4)	The ceasing of treatment and physiotherapy after March 1999.  Dr Au had recommended for treatment and if the plaintiff did suffer the pain and weakness as he said, he should have accepted the surgery.

The plaintiff’s submissions

42. On the other hand, Mr Wright had, inter alia, contended that Dr Au was a credible and reliable expert regarding the condition of the plaintiff while Dr Cheng’s observations were not entirely scientific and he was not a reliable or objective expert.  Mr Wright pointed out that the circumstances showed that the plaintiff was not malingering and his evidence should be accepted.

Assessment of the evidence

43. I had taken time to go through all the documents, statements, reports, testimonies and the submissions.  Having considered all the relevant matters, I found that the plaintiff’s evidence was credible and reliable.  I believed he had told the court the truth regarding the accident, his physical condition, then and now, and his employment situation.

44. I could not accept the defence submission that it was unlikely for the plaintiff to have suffered injury after so many years of doing the same work.  I found it difficult to accept the logic of the argument.  One could also say that if he wanted to use an injury as an excuse to get a  reward, he would have done so earlier.  There was no evidence to suggest that the plaintiff knew about the major client of his employer was going to move the factory to China in a few months’ time, that he would soon lose his job, and therefore he decided to fake and/or exaggerated his injuries in order to get some compensation.  What the plaintiff engaged in was heavy manual labour and with the passage of time, his muscle strength might have declined.  There was nothing surprising that, despite his experience, an injury would occur after nine years of work.  Perhaps this actually strengthened the point that when there was no safe system to follow, and a worker had to rely simply on muscle strength to lift weight, injury could occur when he became older.

45. An important feature of the plaintiff’s evidence regarding his injury and symptoms was, and in this respect I agreed with Mr Wright, that he had been consistent.  Dr Au appeared to be keenly aware that when a patient was examined for the purpose of litigation, there was always a chance that he might try to fake his symptoms.  Yet Dr Au had come to the same conclusion about the plaintiff’s conditions and there was a gap of more than two years between his two examinations.

46. As Mr Wright had submitted, the plaintiff had gone back to work within a reasonable time (in fact he returned to the same employer after the injury until his employment was terminated) and tried to find the best available work he could.  I took the view that the pattern of his behaviour and work record after the accident would tend to show that the plaintiff was not exaggerating his symptoms and suffering in order to get a larger award.  

47. Dr Au, the orthopaedic expert, saw the plaintiff on 21 October 1999.  He compiled the report on 24 November 1999.  By that time he had the benefit of seeing the report by Dr Liang, which contained the MRI scan result.  Dr Liang noted that the plaintiff’s complaint to be “persistent back pain radiating down to the left leg and decrease left knee jerk” and that was consistent with Dr Au’s own findings in the examination.  The result of the scan was “left lateral L4/5 disc protrusion into the lateral aspect of the left L4/5 neuroforamen.  The left L4 exiting nerve root may be impinged.”  If the plaintiff’s alleged symptoms were inconsistent with what the MR1 scan showed, surely Dr Au would have detected that, yet he stated clearly that “the injury has caused disc protrusion.  It is the protruded disc that impinges on the L4 root on the left side and results in sign and symptom of L4 radiculopathy.”

48. The defence would be implicitly suggesting that Dr Au was tailoring his clinical diagnosis in order to support the plaintiff’s claim.  Having seen and heard Dr Au, I would not believe that to be the case.   Dr Au had seen the scan himself and he made his assessment based on that.  I found it rather surprising that Dr Cheng, on the other hand, would venture to offer his “interpretation” without seeing the scan and then concluded that there was “… probably some L4/5 disc bulging” and that “Mr Ho suffered from a simple sprained back.”  I found Dr Cheng’s testimony in court regarding the bulging and protrusion of disc unconvincing in light of Dr Au’s evidence.  One would have thought that his suggestion of six months as sick leave would be excessive for a simple case of sprained back, particularly when, according to him, the plaintiff did not even need to change job or require job restrictions.

49. I accepted the plaintiff’s explanation regarding his actual position with B and B.  He was an experienced driver and one would have thought that, given the chance, he would seek a driving position instead of work that involved only manual labour.  If the plaintiff had to do both driving and manual work in the employment of B and B, then the job description of “general labourer” would not have been accurate in any event.  True that the foreman referred to by the plaintiff was not available as a witness, but it was not unheard of that a worker’s job description might be modified to justify a lesser pay.  I would accept the plaintiff’s evidence that he was driving for B and B, although he also had to do light manual work on the side, such as carrying light tools and implements as he had testified in court.  I found that he was not employed as a heavy manual labour as suggested by the defence.

50. On the issue of whether he should undergo operation on his spine to reduce the pain, I would accept the plaintiff’s submission.  After all, it would be an operation on the spine and I think the plaintiff’s reluctance and concern was justified.  Now he was able to work at least as a driver, but after the operation, if anything went wrong, he might not be able to do even that.  I considered that, given his age and circumstances, it was not unreasonable for him to reject the option of operation.  The risk and benefit may well be disproportional.

51. Regarding the defence case, even without the opinion of Mr Rowlinson, I would have no difficulty to find that the defendant had failed to provide a safe system of work where there should have been one, in view of the nature of work which involved heavy manual effort.  The defendant appeared to be nonchalant about the need for a safer system of work.  His attitude seemed to be that the workers could be left to manage on their own and the risk of injury was not his concern.  He did not change the manner of work even after the plaintiff’s injury.  I also found his evidence of the plaintiff’s salary unclear and inconsistent.  The suggestion that he still had the salary documents at home but he was not asked to produce them was, in my view, unbelievable.  I would also reject his evidence that the plaintiff did not tell him about his earlier injury to his back.

Contributory negligence

52. The defence raised the issue of contributory negligence.  What was suggested was, inter alia, that the plaintiff should have done something for his own protection and/or that he could have asked for the help of his colleagues.  But given the tools provided and the manner of work routine endorsed by the defendant, I could not see what precaution the plaintiff could have adopted and how he could have imposed on his fellow workers to help him to load the rolls.  I found no basis for any contributory negligence in this case. 

Quantum of Damages

53. Mr Lim had very clearly stated his case on the issue of damages in his written final submission, but much of his analysis was based on a refutation of the evidence called by the plaintiff and the economic downturn in Hong Kong after 1997.

54. On the amount of PSLA, a number of authorities had been cited by Mr Lim and he relied mainly on Tam Kwok Man v. KMB (1933) Ltd, HCPI 755/2001.  However, that was a case involving a minor contusion of the back and the court awarded $150,000 under this head.  In our case, in view of Dr Au’s medical finding, which was accepted by the court, the injury to the plaintiff was much more than a minor contusion of the back and there was residual pain and impairment.  In the circumstances, the claim of $300,000 under this head was justified.

55. Based on the court’s acceptance of the plaintiff’s evidence about his employment before/after the accident and the salary, I considered that he had proved, on balance, the difference in his income as a driver/delivery worker and a dump truck driver.  Although Hong Kong did experience a period of economic downturn after 1997, the situation has picked up again.  In any case, even when there were difficulties to find employment in Hong Kong, I was not sure how many workers who were engaged in driving/delivery had been affected, as there were correspondingly more opportunities to do work involving transporting between Hong Kong and the Mainland.  I could not say, as it was stated in the case of Tam Kwok Man (supra), that “the plaintiff’s difficulties in finding employment had nothing to do with his back injury but was attributable chiefly to the economic recession”.  In the premises, I would allow the plaintiff’s claims on the loss of pre-trial earning, the future loss of earnings and the loss of future earning capacity.  And having considered the arguments on interests, I would also allow the plaintiff’s claim in this regard up to the date of trial.

56. In the circumstances, the damages should be calculated, as stated in the plaintiff’s closing address, as follows :

PSLA	$300,000.00
Interest (to date of trial)	$25,500.00
Loss of earnings pre-trial	$566,064.50
Interest (to date of trial)	$139,636.80
Expenses	$11,471.40
Interest (to date of trial)	$2,829.80
Future loss of earnings	$1,286,400.00
MPF	$64,320.00
Loss of future earning capacity	$200,000.00
Sub-total :	$2,596,222.50
LESS : Employees’ Compensation received	$99,698.59
Total :	$2,496,523.91

57. I would make a nisi order of costs in favour of the plaintiff against the defendant, to be made absolute 14 days after the date of this judgment.  Parties have liberty to apply within 14 days.