LAM KWONG SUM v. WONG HAU LING t/a SUN TIN WO GARAGE AND OTHERS

HCPI 643/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 643 OF 2010

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BETWEEN

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J U D G M E N T

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I. BACKGROUND

1.  In December 2007, the Ocean Park Redevelopment Project (“Project”) at Ocean Park, Aberdeen (“Site”), was underway.  It involved cutting down the hill in situ for 60m by rock blasting starting from the hill summit and working downwards.  Haul roads and benches were constructed for dump trucks to access blast zones to remove blast spoils (ie loose soil, rubble and rocks) to the crusher at the lower part of the hill, but route layout would change from time to time as works progressed.

2.  The 4^th defendant (“D4”) was the principal contractor who subcontracted the transportation of spoils to the 3^rd defendant (“D3”).  D3 subcontracted the works to the 2^nd defendant (“D2”).  D2 subcontracted part of the works to the 1^st Defendant (“D1”) who provided 3 dump trucks and drivers.  The plaintiff was employed by D1 to drive a 24-tonne dump truck owned by D1 bearing registration no.KT947 (“Dumper”).  For convenience, D1, D2, D3 and D4 are collectively referred to as the “defendants”.

3.  On 6 December 2007, there was a one-way haul road from the hill summit at 171mPD (“Summit”) down a ramp to a right-angle right-turn bend (“Top Bend”) and then down another ramp (“Ramp”) to another right-angle right-turn bend (“Bend”) opposite the open outside edge (“Edge”) of the haul road bench at 154mPD (“Mid-Bench”) before levelling out for a stretch (“Level Stretch”) and continuing towards the crusher (“Haul Road”).

4.  There is no dispute that shortly after lunch on 6 December 2007 the plaintiff drove the Dumper laden with spoils from the loading site at the Summit down the Ramp en route to the crusher.  The Dumper did not corner the Bend.  It drove over the soil berm (“Soil Berm”) at the Edge of the Mid-Bench and went cabin first down an incline (“Slope”) to hit the excavation bench below at 148mPD (“Low-Bench”), and as a result the plaintiff suffered personal injuries (“Accident”).

5.  The plaintiff claimed that when the Dumper was halfway down the Ramp he stepped hard on the footbrake pedal before cornering the Bend.  He could not slow down the Dumper as the brakes failed to respond.  He believed the Dumper exceeded its statutory maximum load and caused the brake failure.  The plaintiff also claimed the place of work was unsafe in that the defendants failed to provide any fence/barrier at the Edge of the Mid-Bench which area was used as means of access, and the Accident was caused by the defendants’ negligence, breach of statutory duty and breach of common duty of care and by D1’s breach of the implied conditions of employment.

6.  The defendants denied the Dumper was overloaded or any overloading would cause brake failure.  They claimed the Dumper was in good working condition, properly maintained and regularly inspected, and speed control signs were displayed along the Haul Road to remind drivers to drive slowly.  They further claimed the Accident was contributed to or caused by the plaintiff’s own negligence in failing to exercise care and attention, slow down or observe the 10kph speed limit, and/or control/ steer/manoeuvre the Dumper to avoid the Accident.  The defendants also said the plaintiff should not have driven the Dumper when he knew it exceeded its statutory load limit (which they denied), and it was not practically reasonable to erect barrier/fence at the Edge.

7.  Spoils scattered as the Dumper plunged down the Slope, and the Dumper was later scrapped without having its brakes tested.  So no expert evidence as to liability was allowed at trial save in the form of the Labour Department (“LD”) accident report dated 3 March 2008 (“LD Report”).  Ms Cheng, counsel for the plaintiff, conceded the plaintiff would not rely on D1’s handwritten statement dated 1 April 2010 that set out his opinion on overloading and its effect on braking efficiency.

8.  Pursuant to an order made on 29 December 2011, the joint psychiatric expert report by the plaintiff’s expert Dr David Tsai (“Dr Tsai”) and the defendants’ expert Prof Felice Lieh Mak (“Prof Lieh Mak”) dated 14 November 2009 (“Jt Psy Report”) and the joint orthopaedic expert report by the plaintiff’s expert Dr Lau Hoi Kuen (“Dr Lau”) and the defendants’ expert Dr Ho Ching Lun (“Dr Ho”) dated 25 October 2011 (“Jt Ortho Report”) were adduced at trial without oral evidence.

II.    FACTUAL WITNESSES

9.  The plaintiff himself gave evidence, and called Shen Yin Man (“Wife”) and Mok Yiu Chung (“Mok”) to give evidence on his behalf.  The defendants called Lam Pak Cheong (“Lam”), So Yat Tung (“So”), Yau Tin Yau Carlos (“Yau”) and Tang Chi Kin (“Tang”) to give evidence.

10.  At the time of the Accident, Lam and Mok were also employed by D1 to drive 24-tonne dump trucks at the Site.  The plaintiff had been driving the Dumper at the Site for over 1½ months before the Accident.  Mok and Lam started to work at the Site even earlier.  They each had 20 years’ experience as dump truck driver whilst the plaintiff had 30 years’ such experience.

11.  In my view, Mok (who is now retired) is a fairly independent witness.  He was acquainted with the plaintiff as a co-worker for about 2 years prior to the Accident, but there was no personal friendship.  On the other hand, Lam continued to work at the Site for 2 years until completion of the Project. He left D1’s employ, and since a few years ago he was (and is now) employed by D3.  Since he gave his declarations to the LD in 2008 (“Lam Declarations”), Lam had not been approached about the Accident in the intervening 5 years until he made his witness statement in less than 2 weeks before trial (ie on 20 February 2013).

12.  At the time of the Accident, So, D4’s senior quality, safety and environmental (“QSE”) manager responsible for site safety at the Site, had been a registered safety officer for at least 18 years.  He supervised Yau who was then a safety supervisor and D4’s assistant QSE manager.  At the time of the Accident, Tang (D3’s foreman for over 10 years) supervised D3’s excavator workers over transport of spoils at the Site.

13.  In assessing witness’ credibility, I have carefully considered the inherent plausibility or implausibility of their testimony, and whether any part of their testimony is contradicted or supported by undisputed or contemporaneous evidence.  Although I do not accept certain aspects of the plaintiff’s evidence on the issue of quantum, they do not detract from the overall credibility of his testimony on the issue of liability. I also find Mok’s evidence generally convincing.  Notwithstanding the site safety excellence awards received by D4 over the years, I am unimpressed by the defendants’ witnesses whose shifting/contradictory evidence undermines their overall credibility and reliability.  In my view, they were not above giving evidence to suit what they perceived would best suit the defendants’ case.  On balance, I am not satisfied I can safely place weight on their evidence as to the core issues of liability.

III.   LIABILITY

(a)  Issues

14.  As to what caused the Accident and whether the defendants should be held liable, the issues are whether at the time of the Accident:

(a) the Dumper was overloaded;

(b) the Dumper’s brakes failed;

(c) the plaintiff had dizziness or a black out before the Dumper reached the Bend;

(d) the plaintiff was contributorily negligent;

(e) it was reasonable to require the defendants to take safety measures (eg erecting fence/barrier at the Edge or installing weighbridge).

15.  In respect of issue (d), there are the following sub-issues: (i) whether the plaintiff failed to observe the speed limit, (ii) whether the plaintiff was distracted by his real-time stock pager and/or warrant investments and not keeping proper attention and/or lookout, and (iii) whether the plaintiff took any avoidance action (and if not, why not).

(b)   Dumper

16.  The Dumper’s gross permitted weight was 24 tonnes, and its wheel-to-wheel width and length were 2.4 m and 7.6 m respectively.  Its configuration comprised a driver cab and a dumper body (ie an open box bed mounted on the frame of the truck chassis).  The dumper body had a cabshield (height 50 in) at the front, 2 side panels (height 35 in) and a tailgate (height 35 in) at the back.  Top rails were welded to the side panels and tailgate to increase their height by 15 in to 50 in (“Modified” or “Modification”).  The dump trucks driven by Mok and Lam were similarly Modified.  According to D1’s handwritten note dated 15 October 2009 (“D1 Note”), D2 required the Modification to be made before D1’s dump trucks were allowed to work at the Site.

17.  The Dumper went through annual inspection on 25 September 2007, and certain components of the braking system as well as all tyres were replaced.  There is no dispute the Dumper’s braking system was in working condition after such inspection.  The plaintiff himself also regularly checked the Dumper, and the inspection records since October 2007 (last being 1 December 2007) did not reveal any defective braking system.  On 6 December 2007, the plaintiff checked the Dumper before starting work in the morning and after lunch, and no defect of the braking system was noted.

(c)   Accident location

18.  It is necessary to set the scene by describing the layout of the Accident location (“Layout”).

19.  Photographs  The Layout seen in the dated (6 December 2007) photographs taken by Yau and annexed to So’s 1^st witness statement is similar to that seen in the photographs annexed to the LD Report, the Lam Declarations and the declaration the plaintiff gave to the LD (“Plaintiff Declaration”) (collectively, “Later Photos”), but different from that seen in the undated photographs annexed to So’s 1^st witness statement (“Scene Photos”).

20.  Up till the time he gave evidence, So claimed the Scene and Later Photos depicted the Layout of the Accident location without any alteration since the Accident.  But he admitted in evidence only the Scene Photos showed the Layout immediately after the Accident, and the Later Photos depicted the Layout as he saw when he accompanied the LD’s occupational safety officers (“LD Officers”) to the Mid-Bench about 3 hours after the Accident (“LD Visit”). 

21.  It transpires that significant changes had been made to the Layout during that time.  So claimed he was at the Low-Bench and unaware that changes had been made until he gave evidence.  Yau claimed that although So instructed him to take photographs of the Layout, he too was unaware of the changes and only took the Later Photos during the LD Visit.  But as seen below, I have doubts over their professed unawareness, which undermines their overall credibility and reliability.

22.  Haul Road  Although So and Lam tried to play down the gradient of the Haul Road, I find on balance that the section from the Summit to the Mid-Bench (including the Ramp) was quite steep for laden dump trucks.  The Top Bend and Bend were sharp blind-corner bends, and laden dump trucks negotiating these bends required skilled driving and effective brakes.  At the time of the LD Visit, the measured width of the Ramp varied from about 5.4 m to 6 m.

23.  On 6 December 2007, the Haul Road was the only route used by dump trucks to transport spoils from the Summit to the crusher.  So claimed haul routes changed “every day” with blasting taking place all the time.  But this is belied by Yau who made daily inspections of the Haul Road and recalled the Haul Road (including the Ramp and the Bend) had been in use for at least two weeks before the Accident.  Tang also confirmed that mid-level haul roads would be preserved when blasting took place at the Summit.  On balance, I accept the plaintiff’s evidence that he had been using the Haul Road since he started to work at the Site.

24.  There is no dispute the speed limit for the Haul Road from the Summit to the Mid-Bench was 10 kph.  Yet the Lam Declarations asserted there were 15 kph speed control signs for the Ramp, and Lam even gave evidence that such signs were erected at the Summit where the Haul Road started to go downhill.  I reject Lam’s evidence as unreliable.

25.  Blast Fences and Rock Berm  The Later Photos showed a stand of two tall metal blast fences with meshing (“Blast Fences”) at the Edge along the lower part of the Ramp (“Ramp Blast Fences”), and a cluster of Blast Fences at the Edge opposite the Bend at the Mid-Bench (“Bench Blast Fences”). The Later Photos also showed a crawler crane set on tracks at the Mid-Bench close to the Bench Blast Fences, and an excavator set on tracks on the Ramp close to the Ramp Blast Fences.

26.  There is no dispute the footings of Blast Fences were secured and held down by 1 m³ concrete blocks (“Blocks”) to prevent them from tipping over.  Each Block had steel channels mounted on its topside as well as on both sides.  The Later Photos showed two Blocks positioned on the Soil Berm at the open outside Edge of the Mid-Bench opposite the Bend (“Berm Blocks”), one of which was free-standing and the other placed against the footings of the Bench Blast Fences.  Loose rocks were piled against the Soil Berm to the right of the free-standing Berm Block to form a rock berm (“Rock Berm”).

27.  It is common ground that Blast Fences would be positioned to catch flyrocks generated during blasting, so D4 had to move Blast Fences and their footing Blocks by crawler cranes (similar to the one shown in the Later Photos) and smaller cranes respectively to blast areas for protection during blasting and then take them away after blasting for removal of flyrocks and spoils.

28.  Berm  The plaintiff, Mok and Lam confirmed that at the time of the Accident there was only Soil Berm at the open outside Edge opposite the Bend without any Berm Block and/or Rock Berm.  Yau confirmed it was the same in the two weeks before the Accident.  As to the height of the Soil Berm, the LD Report noted it was 0.6 m at the time of the LD Visit.  Lam said it was about half the height of the Blocks (ie about 0.5 m) at the time of the Accident, and Mok said it was about 1 ft. On balance I accept that throughout the time the plaintiff worked on the Site there was only low Soil Berm at the open outside Edge along the Ramp and at the Bend.

29.  So and Yau claimed they had no idea of the actual Layout at the time of the Accident, but So believed the depression on the Soil Berm seen in the Scene Photos marked the spot where the Dumper fell over the Edge.  In his 1^st witness statement made in 2011, So said such spot was located between the two Berm Blocks that were positioned at the Soil Berm “以防止車輛墮下山坡”.  So retracted his reference to the presence of the Berm Blocks at the time of the Accident when he gave evidence, but I doubt whether by the time of his 1^st witness statement he was still unaware of the changes made to the Layout.

30.  After all, as early as in March 2008 the LD Report already noted “there was no [Block] at the ramp edge to prevent the [Dumper] from moving beyond there at that time”.  Further, the Later Photos taken during the LD Visit showed that the gap between the Berm Blocks was not wide at all, so it must have been obvious that the misfortune of the Dumper with a wheel-to-wheel width of 2.4 m squeezing past the two Berm Blocks (and leaving them intact) to fall over the Edge would have been quite unlikely.  Yet when So was asked about this in evidence, all he could say was that he had not thought about it and anyway he did not think it strange.  I find his explanation unconvincing.

31.  Bend  The Later Photos showed a rock outcrop at the inside of the Bend (“Outcrop”) with a 7-seater van (“Van”) facing upslope parked on the Mid-Bench behind the Outcrop.  At the base of the Outcrop near to the Van were loose rocks.  Both the plaintiff and Mok said that (a) at the time of the Accident Blast Fences were positioned around the Outcrop (“Bend Blast Fences”) with more loose rocks at the base of the Outcrop than seen in the Later Photos (“Rockpile”), (b) the Bend Blast Fences were for catching flyrocks from blasting that had taken place (at the upper bench according to Mok), and (c) the Bend Blast Fences were removed after the Accident (to the open outside Edge at the Mid-Bench to become the Bench Blast Fences according to Mok).  The plaintiff also said most of the loose rocks from the Rockpile were cleared after the Accident leaving the remaining rocks still seen in the Later Photos.

32.  During the LD Visit, the LD Officers measured the distance from the Bend to the outside Edge at the Mid-Bench to be 13 m.  But given the presence of the Bend Blast Fences (with their footing Blocks) and Rockpile at the inside of the Bend and further given their number and size, the width of the carriageway at the Bend at the time of the Accident must be narrower than 13m as measured by the LD Officers and depicted in the Later Photos.

33.  In the Lam Declarations, Lam denied the existence of the Bench Blast Fences, but in re-examination he admitted that (a) blasting had taken place before the Accident, (b) the Bend Blast Fences were positioned near the Outcrop to the left of his dump truck which had stopped there to give way to the Dumper coming down from the Ramp at the time of the Accident, and (c) the Bench Blast Fences were only parked at the outside Edge of the Mid-Bench after the Accident.

34.  Such admissions reflect poorly on the veracity of Lam’s statements about the Accident made as early as in 2008. On the contrary, the plaintiff, having mentioned the existence of the Bend Blast Fences in the Plaintiff Declaration in 2008, was consistent and reliable. I find on balance (a) the Bend Blast Fences and Rockpile were present at the time of the Accident, (b) after the Accident the Bend Blast Fences and their footing Blocks were parked at the Edge to become the Bench Blast Fences and inter alia the Berm Blocks, and (c) most of the loose rocks from the Rockpile were piled up to form the Rock Berm at the Edge opposite the Bend.  In respect of (c), Yau said loose rocks for constructing Rock Berm came from either blast spoils or the crusher, but with no dump truck coming down from the Summit after the Accident and no evidence that loose rocks were brought to the Mid-Bench from the crusher, the only source of rocks for the Rock Berm at the Edge opposite the Bend appeared to be the Rockpile.

35.  Slope and Low-Bench  The Slope was quite steep, and it dropped down for about 20ft (according to So) to the Low-Bench, which was not a proper haul road and not wide at all.  Beyond its Edge was another incline that dropped down to the lower part of the hill.

36.  There is no dispute that after the Dumper fell over the Edge it came to a stop upon hitting the Low-Bench with its whole length lying almost vertically on the Slope (“Fall Position”) as seen in the Scene Photos.  But the Later Photos showed the Dumper (covered by tarps and its dumper body emptied) positioned at the bottom of the Slope parallel to the Low-Bench (“Moved Position”) with the driver cab severely damaged.  An excavator was seen by the side of the Dumper, and D3’s front-loader was behind it. 

37.  The Dumper could not be moved as its wheels were locked. After the plaintiff was taken away by ambulance, D3’s front-loader was used to push the Dumper to the Moved Position, and it was then covered by tarps.  So said that later D3’s front-loader backed the Dumper along the Low-Bench to bring it within the reach of a crane (which could not enter the Low-Bench).  I accept Mok’s evidence that the Dumper was later lifted by crane onto the Level Stretch.

(d)   Aftermath

38.  Having set out the Accident Layout, it is useful to canvass So’s and Yau’s explanations for failure to preserve the integrity of the Accident location that resulted in the inaccurate picture presented by So’s 1^st witness statement.  I shall focus on the period after the plaintiff left the Site by ambulance probably at about 2:45 pm. According to So and Yau, they did not make any attempt to go to the Mid-Bench before the LD Visit.

39.  So claimed he instructed Yau to take photographs but he himself remained at the Low-Bench to liaise with and brief Ocean Park personnel who requested D4 to control the Accident scene since sight of the Dumper wreckage might upset visitors to the nearby Ocean Park Tower or cause negative publicity.  Therefore, So’s first priority was to stabilise the Dumper and check for leakage of engine oil.  The remaining spoils on the Dumper were then removed, and the Dumper was pushed by D3’s front-loader to the Moved Position to be covered by tarps.

40.  Yau said he walked up the Slope and stopped about 10-20 m from the spot where the Dumper fell over the Edge. He then returned to the Low-Bench to fetch the ambulance.  Thereafter, in the 2½ hours until the LD Visit, Yau never thought of going to the Mid-Bench even though he was tasked to take photographs. He claimed So was (but he was not) the person in charge of the Accident investigation, and he went to the Site entrance to bring Ocean Park personnel to the Low-Bench before returning to the Site entrance with a view to prevent the media from entering the Site.  He later accompanied the LD Officers on their LD Visit.

41.  At that time, even though So claimed he could not go to the Mid-Bench for 3 hours after the Accident, he had no idea but just assumed no one would alter the Accident location. He claimed that experienced foremen (who would have been aware of the Accident via their walkie-talkies) would so tell their workers.  He said he did not know why works continued at the Mid-Bench after the Accident, but believed construction manager James Rikard (“Rickard”) gave instructions to restart works.  However, Yau said D4’s production department could not prevent So from investigating the Accident, and So could speak up if alterations were made to the Accident location.  Yau also said that normally anyone wishing to alter an accident scene would ask So as to whether the proposed alteration should await completion of the accident investigation.

42.  So denied that after the Accident the defendants prettied up the Accident location for the LD Visit.  But it begs the question why works continued at the Mid-Bench despite the seriousness of the Accident with an injured driver and a wrecked vehicle.  Since transport of spoils from the Summit to the crusher ceased after the Accident, the only discernible works were sending the crawler crane to the Bend presumably to remove the Bend Blasted Fences with their footing Blocks for parking them as the Bench Blasted Fences, to position the free-standing Berm Block right at the Edge where the Dumper fell over, and to make up the Rock Berm out of loose rocks from the Rockpile.  On any view, these cannot be urgent works that could not have awaited the LD Visit and/or any Accident investigation by So/Yau.  No explanation was forthcoming as to why such works (which would alter the Accident Layout) were carried out right after the Accident despite the common understanding amongst foremen (and presumably also Rickard as construction manager) that works would cease after an accident.

43.  Further, the explanations offered by So and Yau for not going to the Mid-Bench are also suspect.  Although So said he had things to do, he confirmed he was not the one who gave instructions for or arranged the removal of spoils from the Dumper and/or the relocation of the Dumper to the Moved Position (although he agreed with such actions).  It was D3’s foreman who gave instructions for the front-loader to perform the latter task.  In fact, So did not pay attention to how others carried out their duties after the action plan was formulated.  That being the case and bearing in mind that one of So’s primary duties was to investigate the Accident, I do not accept he had no time at all to go to the Mid-Bench to view the Accident location.  As for Yau being the other site safety team member, his slow and cautious answers under cross-examination as to what he did after the Accident did not carry the spontaneity of truth.  There is no evidence that any media was actually at (or even near) the door, and I do not accept he had to stay at the Site entrance for an hour or more to fend off the media when he was specifically tasked to take photographs.

44.  In my view, both So and Yau for no good reason dragged their feet in going up to the Accident location at the Mid-Bench.  This coupled with the inexplicable conduct of D4 in re-positioning the Bend Blast Fences, placing the Berm Blocks and creating the Rock Berm after the Accident culminated in the defendants presenting an inaccurate picture to the LD Officers during the Site Visit and to the court at least until trial.  Hence, the LD Report must be read with this qualification in mind.  This also undermines the overall credibility of So’s and Yau’s evidence, especially where they conflict with the evidence of the plaintiff and Mok.

(e)   Accident and speed of the Dumper

45.  I now turn to the Accident.  On 6 December 2007, the plaintiff started to work at about 7:30am, and he started to work again after lunch at about 1:00 pm.  Before the Accident, he had driven the Dumper along the Haul Road 12 times to transport spoils from the Summit to the crusher. By 2:12 pm, he was on his 13^th delivery trip.  He drove the laden Dumper along the Haul Road down the Ramp at slow speed and in low gear with his foot on the footbrake pedal (吊住迫力).

46.  The plaintiff said he started off at his normal speed, but Lam claimed he heard on the walkie-talkie an excavator worker at the Summit saying that “嘩，唔知做咩雞林 [plaintiff’s nickname] 起步好快落山”.  The plaintiff denied this, and on balance I accept the plaintiff’s stance.

47.  First, the plaintiff was an experienced dump truck driver who had driven along the Haul Road many times, and had been admonished by Lam and at other construction sites for his slow pace.  On balance, I find the plaintiff to be a slow and careful driver.  Secondly, the plaintiff explained he had to go slow and use low gear because the laden Dumper had to corner the Bend at the bottom of the Ramp, and to do so without risk of rollover required a very slow speed which he (as corroborated by Mok) described as almost coming to a stop or about 1 kph.  I accept the plaintiff’s evidence. In view of my findings on the Layout of the Ramp and Bend at the time of the Accident as known to the plaintiff, he had no reason to depart the Summit at speed when he knew he would have to negotiate two blind right-angle bends after coming down the ramps.

48.  Halfway down the Ramp, the plaintiff was about to reduce the Dumper’s speed to about 1 kph in order to safely corner the Bend.  He applied the brakes, but when the Dumper did not slow down he realised the brakes failed.  He applied “B速” which was supposed to increase braking efficiency, but still it did not work.  The Dumper gathered speed (ie faster than his usual speed when travelling on that stretch of the Ramp) as it went straight down the Ramp and over the Edge.

49.  At the time of the Accident, Lam stopped his dump truck (which was then going uphill) at the Mid-Bench behind the Outcrop to wait for the laden Dumper coming down the Ramp.  Although in the Lam Declarations he claimed to have stopped his dump truck where the Van was seen in the Later Photos, he agreed in evidence that he actually stopped further back to ensure there would be enough room for the tail swing of a laden dump truck cornering the Bend.  In my view, this reflects the narrow width of the Bend vis-à-vis laden dump trucks as underlined by the fact that only one dump truck could pass at a time and further by the need for the driver coming down the Ramp to announce his presence via walkie-talkie so that the driver going uphill would stop and make way well before the Bend (as Lam did). 

50.  Although it will be discussed in greater detail below, suffice to state here that on balance I find there was brake failure at the time of the Accident which led to the Dumper’s uncontrolled descent (save for the plaintiff’s steering) down the Ramp and over the Edge.

(f)    Avoidance action

51.  The plaintiff said that in the moments after he realised there was brake failure, three scenarios went through his mind, ie he could (a) ram into the Bend Blast Fences, (b) swerve right at the Bend, or (c) let the Dumper go over the Edge, and in a split second he took the latter course.

52.  For the plaintiff, ramming into the Bend Blast Fences was not an option because they might not halt the Dumper, but would likely tip over and fall on the Dumper and cause him serious harm.  Having cast aside this option, the plaintiff believed the Dumper would inevitably fall down the Slope.  He was scared he might lose his life, but being familiar with the landscape he felt there might be a chance of survival if the Dumper’s fall would be arrested by hitting the Low-Bench below.

53.  The plaintiff believed that any attempt to swerve right would cause the laden Dumper to rollover.  First, he explained that a laden dump truck had a higher centre of gravity above ground and hence less stability and greater overturning force upon swerving and cornering than an empty one with its centre of gravity at the truck chassis.  This is why a low-body race car is less prone to rollover even on high speed manoeuvres.  Secondly, he further said that the centrifugal (or overturning) force that occurred when a vehicle changed direction at a tight bend would be affected by vehicle speed, which explained why the plaintiff had to reduce the Dumper’s speed to about 1 kph in order to corner the Bend.  Given the Dumper’s then speed and inability to slow down following the brake failure as exacerbated by the Dumper coming down a gradient (since gravity would add to the overturning force), the Dumper would rollover if he swerved right.  Thirdly, if he swerved right and the Dumper overturned on its side, given the narrow width of the Bend, the Dumper would rollover like a rolling pin over the Edge and under such momentum might even roll off the Low-Bench to the lower part of the hill.  This would be disastrous not only for him as he would surely die but also for other workers, visitors and users of Ocean Park facilities at the base of the hill.

54.  Mr Chan, counsel for the defendants, questioned the plaintiff’s belief that the Dumper would rollover.  But bearing in mind the plaintiff’s understanding of the performance of dump trucks from his own experience, his usual speed of about 1 kph for cornering the Bend, the Dumper’s speed which gathered upon brake failure as it came down the Ramp, and the Bend Blast Fences and Rockpile positioned at the inside of the Bend, I cannot say the plaintiff’s belief that the Dumper would rollover is incredible.

55.  Mr Chan argued it was unbelievable for the plaintiff to analytically sift the choices within “the blink of any eye” and then come to a deliberate decision.  In my view, whilst it may be laborious to express in words the above considerations, they would naturally come to the mind of the plaintiff as an experienced dump truck driver well familiar with the performance of his vehicle as well as the route and landscape, and the so-called “decision” was more of an instinctive response to the situation drawn from his experience with driving dump trucks and his familiarity with the landscape.  I have carefully considered Mr Chan’s other complaints but I do not think they detract from the plaintiff’s genuine worry at that time of what he perceived as dangerous consequences of rollover under the second option.  In all the circumstances, the situation of the Dumper with brake failure coming down the fairly steep Ramp to a narrow Bend edged on the outside merely by a low Soil Berm and checked on the inside by the Bend Blast Fences and Rockpile did not make it obviously safe to swerve right, and I do not think the plaintiff could be faulted for not doing so in the split-second before the Accident.

(g)   Physical predicament

56.  In the Lam Declarations, Lam stated that after the plaintiff was rescued he went over to the plaintiff who was lying on a stretcher and asked him why he was so careless in his driving, and the plaintiff replied “不知呀，好暈囉”.  When Lam gave evidence, he said this was said at the Site.  But in his witness statement made about 5 years later, he said that after the Accident he asked the plaintiff what happened and why he was so careless, and the plaintiff replied “當時落山突然覺得好頭暈”.  In evidence, he said this conversation took place at the hospital, but he also said he took separate transport to the hospital and did not say anything to plaintiff at the hospital.  He even claimed to have told the LD Officer the plaintiff told him he felt dizzy as he went downhill.

57.  I find Lam’s evidence confusingly unreliable and I reject it.  Bearing in mind that the plaintiff was injured and just rescued (and Lam agreed he appeared to be in great discomfort), I find the plaintiff’s reply given in the Lam Declarations equivocal for it could have meant that he did not know why the Accident happened and he was then very dizzy.  The plaintiff fairly accepted that Lam might have spoken to comfort him even though he denied Lam ever asked him how the Accident happened. I find the version in Lam’s witness statement given 5 years after the Accident to be an unreliable embellishment.  Although the Accident Report noted the plaintiff “told a co-worker he temporarily blacked out”, this is again different from Lam’s either version of the plaintiff’s reply that he was dizzy. 

(h)   Stock pager

58.  Yau in his witness statement said the plaintiff kept asking “我部大利是機呢?” after he was rescued.  However, he admitted in evidence that the plaintiff only said “我部機呢?” without specifying “大利是機”, and that he only said so in his witness statement because a stock pager was later found in the driver cab.  He agreed he actually had no idea what machine the plaintiff was referring to or whether what the plaintiff said had anything to do with the Accident.

59.  So stated in his 1^st witness statement that he found a stock pager in the driver cab, but clarified in evidence it was a co-worker who found it.  So said that after the plaintiff was rescued he kept asking “我部機呢, 我部機呢, 我部機呢”, and he suspected the plaintiff was distracted by looking at the stock pager whilst driving the Dumper.  But when he gave evidence, So agreed it was his mere suspicion grounded upon some stock transaction statements found in the driver cab, and in fact he had no idea whether the plaintiff was referring to his stock pager, walkie-talkie or mobile phone when he asked for his “machine”.

60.  The plaintiff agreed he was a beginner in stock investment at the time of the Accident, and traded in warrants (but without a margin account) in the hope of earning a higher yield since he only had a small investment capital.  Mr Chan suggested that because the plaintiff was trading in the region of a few thousand dollars and had a portfolio holding of HK$10,000.00-HK$20,000.00 (which were not small sums) and the Accident happened shortly before or around the time the stock market resumed trading at 2:30 pm, he was not keeping a proper lookout or paying proper attention as he approached the Bend.

61.  I am unable to conclude that the plaintiff’s investment portfolio was necessarily substantial given his 30-year working career and his and the Wife’s earnings at the time of Accident.  In any event, it is clear that So and Yau just assumed the machine in question was the stock pager and on such assumption suggested that the Accident was due to or closely connected with his stock trading when in truth they had no idea.

62.  According to the plaintiff, his belongings in the driver cab included a stock pager, mobile telephone, wallet and knapsack.  He had no recollection of stock transaction statements amongst his belongings, but agreed he did ask about the whereabouts of his belongings (but not specifically about the stock pager) after he was rescued.  On balance, I do not think there is any sufficient basis for concluding that the plaintiff was not paying proper attention or keeping proper lookout as a result of being distracted by his investments or stock pager.

(i)    Overloading

63.  The LD Report stated there was no concrete evidence to suggest the Dumper was overloaded and/or the load of spoils on the Dumper affected its braking system.  The plaintiff fairly conceded there was no direct evidence, but claimed inferences could properly be drawn to show that the Dumper was overloaded at that time of the Accident.

64.  Eyewitness evidence  Mr Chan submitted that despite the plaintiff’s evidence as to his complaints of overloading to excavator workers on many occasions, there was no eyewitness evidence that the Dumper was excessively filled or overloaded on the delivery trip in question and no evidence that the plaintiff complained of overloading before he left the loading point at the Summit on that delivery trip.

65.  In my view, such lack of direct evidence could be explained by the usual loading practice.  Tang gave evidence that generally the driver would remain in the driver cab during loading (which would take 6-10 minutes). After loading was completed, the excavator workers would inform the dump truck drivers by walkie-talkie or they would place the excavator bucket on the ground as a sign to depart visible to the dump truck drivers in the rear view mirror.

66.  Tang’s evidence directly contradicts So’s witness statements dated 27 January 2011 and 5 February 2013 (ie a month before trial) which stated that it was the driver’s duty to stand at the gap between the driver cab and dumper body to observe the loading exercise and make sure the dumper body would not be overloaded or the spoils would not be unevenly placed, and to give instructions to the excavator worker to fix any problem before he drove off.

67.  So further stated in his 1^st witness statement that if after assessing the weight of the loaded spoils by such method the plaintiff considered the Dumper to be overloaded then he should not have driven the Dumper away. In my view, that So would suggest that the driver’s eyeball check was the standard practice when Tang, D3’s foreman responsible for supervising the loading of spoils onto the dump trucks, said otherwise speaks ill of So’s credibility and reliability on the issue of overloading. 

68.  The folly is compounded by Lam’s witness statement dated 20 February 2013 (ie less than 2 weeks to trial) which said that because there was no weighbridge to measure the weight of the dump trucks at the Site, dump truck drivers had to stand at the gap between the driver cab and dumper body to observe the loading exercise to make sure there would be no overloading, and that he and other drivers used this method. Lam’s evidence that he spontaneously thought to include this in his witness statement without anyone raising this issue with him is, in my view, incredible.

69.  I reject both So’s and Lam’s evidence as unreliable embellishments to bolster the defendants’ case, which undermines the weight of their evidence on the issue of overloading.  More importantly, the absence of direct evidence as to the exact weight of the load of spoils on the Dumper at the time of the Accident does not absolve the court from assessing the evidence and, where appropriate, drawing proper inferences.

70.  Savings  I will next deal with two short points.  The plaintiff suggested there was overloading in order to save fuel and cost as well as to save time and delivery cycles.

71.  Although Lam complained of the plaintiff’s slow pace, dump truck drivers’ income was calculated on a daily rate and they were not required to meet any deadline for completing their work.  But the plaintiff surmised the defendants had to hurry up with the Site works because he regularly worked overtime, ie his working hours were extended from 8:00 am - 6:00 pm to 7:00 am/7:30 am - 7:00 pm with additional overtime work during lunch (中直) and at other hours. But, in my view, having overtime work is insufficient basis to conclude there was urgency in completing the Site works.  After all, dump truck drivers were not under any time constraint to finish their work. 

72.  The plaintiff kept a refueling record at D1’s request, but Mok had no such record.  The plaintiff frankly accepted he had no idea of the fuel cost arrangements and D1 did not tell him to save fuel, but again he surmised there would be savings if dump trucks carried heavier loads thereby minimising delivery cycles.  Mok fairly said he had no idea of the fuel cost arrangements but believed D2 covered the fuel charges, and he was not concerned over saving fuel cost.  Again, I find there is insufficient basis to say there was overloading in order to save fuel.

73.  But two matters are of note.  First, Mr Chan criticised Mok’s veracity but the above showed he was fair and honest.  Secondly, although I disagree with the plaintiff’s surmises, they do not reflect adversely on his factual testimony.  I now turn to the issue of the Modification.

74.  Modification  In the Plaintiff Declaration, the plaintiff told the LD Officer he believed the Dumper was overloaded at the material time because of the Modification.  For the trial, he produced an “Excavated Materials Delivery Form to Barging Point” for a laden but not fully loaded 24-tonne dump truck with original configuration showing that it weighed 23.84 tonnes (“Sample Results”) in support of his claim that the fully loaded Modified Dumper would definitely be overloaded. Mok said that in his experience overloading was possible even without Modification, but inevitable upon Modification.

75.  The defendants did not challenge the Sample Results. This means that with the height of the Dumper’s dumper body Modified to 50 in, there would necessarily be overloading beyond the statutory maximum limit no matter whether the Modified dumper body was almost fully or completely filled.  The real question is therefore the actual loading of spoils, but the Modification remains part of the factual matrix against which the court, where appropriate, may draw inferences.

76.  First, the plaintiff’s clear stance (as borne out by the D1 Note which neither D1 nor D2 came forth to refute) was that D2 required D1’s dump trucks to be Modified before allowing them to work at the Site.  On the contrary, the defendants’ evidence on the issue of Modification was confusing and contradictory.  Lam in his witness statement stated that all dump trucks had to be Modified before they were allowed into the Site.  But Tang gave evidence that as with other construction sites some dump trucks working at the Site were Modified and some were not.  Given such contradiction, I am unable to place weight on either Tang’s or Lam’s evidence in this respect, which I reject in their entirety as being unreliable.  The finding that I can safely make on the balance of probabilities is that D1’s dump trucks had to be Modified for working at the Site.

77.  But even if Tang’s evidence on the Modification (which I have rejected) is to be considered, it would not have brought the defendants’ case any further.  So and Lam claimed the Modification was to prevent spillage of spoils from the dump trucks which might injure other workers, but it remained an unanswered question as to why, according to Tang, some dump trucks at the Site (which purpose was to transport spoils) need not be Modified.

78.  Secondly, the plaintiff said (and even Tang admitted) the purpose of the original design of the cabshield being 15 in taller than the side panels and tailgate of the dumper body was to prevent spoils that might slide to the front from spilling when the laden Dumper went downhill. The plaintiff explained that the cabshield would provide adequate protection since risk of spillage on going downhill would be in the front and not from the sides.

79.  Thirdly, the plaintiff said the Modification increased the height of the side panels and tailgate to the same height as the cabshield, which would eliminate the cabshield’s protective function if the dumper body was fully loaded. Without a cabshield taller than the load, spoils would spill out at the front onto the gearbox (transmission) in the gap between the driver cab and dumper body and also onto the driver cab, which he said happened to the Dumper all the time despite his complaints.

80.  On balance I prefer the plaintiff’s evidence and find the defendants’ explanation for the Modification unconvincing.  The risk of overloading was minimised under the Dumper’s original design since the load of spoils could not have exceeded 35 in and the 50 in cabshield provided protection from spillage in front, but a Modified dump truck could receive spoils up to 50 in (which would mean overloading – see paragraphs 74-75 above) and thereby eliminate the protective function of the cabshield.  I find that the Modification to the Dumper (and to D1’s other dump trucks) as required by D2 was not for spillage prevention but for carrying larger quantity of spoils.

81.  Loading of spoils  The plaintiff said (a) each excavator bucket of spoils in the loading process contained generous rather than level grab of spoils, (b) the Modified Dumper was always overloaded and (c) Tang required the Dumper to be fully loaded before he was allowed to drive away otherwise he would be summonsed back by walkie-talkie for topping up the load. 

82.  Mok said his Modified dump truck always had a full load, and a foreman surnamed So would make sure no dump truck could leave the loading point unless the dumper body was completely filled.  Mr Chan submitted that Mok’s testimony was exaggerating and unreliable. He referred to Mok’s evidence that about an hour after the ambulance left the Site a foreman surnamed So was seen at the Mid-Bench giving directions over the walkie-talkie for a crane to lift the Dumper from the Low-Bench to the Mid-Bench. Mr Chan argued there was no reason why such foreman, who would appear to be So (D4’s QSE manager), would be supervising D3’s excavator workers.

83.  I disagree with Mr Chan’s submissions because such foreman was not So at all.  So said he did not (a) have a walkie-talkie, (b) go to the Mid-Bench until the LD Visit or (c) give instructions to deal with the front-loader/crane. However, So confirmed that a front-loader was used to push the Dumper backwards towards a crane.  Such front-loader belonged to D3, and Tang said D3’s foreman gave instructions for operating the front-loader.  Since So confirmed there was no foreman surnamed So at the Site, I find that Mok must have been mistaken as to the surname of the foreman but it does not affect the veracity of his evidence.

84.  Tang gave evidence that before D3’s excavator workers started to work at the Site, he would instruct them not to overload the dump trucks, and that 9 excavator buckets of spoils (“9 Bucket Rule”) would be the right load for a 24-tonne dump truck.  Since D3 only had 20-tonne excavators working at the Summit and their bucket capacity was 0.9 m³, so even allowing for spoils grabbed by the bucket to be above-level (eg big rocks) such that the weight of each excavator bucket would be about 1 tonne, still the dump truck would not be overloaded. 

85.  A number of matters are of note. First, there is no written record of the 9 Bucket Rule.  This on its own may not necessarily reflect adversely on the defendants, but it means there was no objective evidence to support the oral testimony of So, Tang and Lam.  Interestingly, despite their evidence as to discussions on overloading in safety meetings and toolbox talks at the Site, the defendants made no attempt at all to look for any document that evidenced the 9 Bucket Rule even after the plaintiff specifically raised the issue of overloading upon commencement of the present action.  So brushed this aside by saying that overloading was not part of the defendants’ case and anyway it was a matter of common sense. I find such excuse lame and unconvincing, and in view of the analysis herein and the overall unreliability of the evidence of So, Tang and Lam, on balance I find myself unable to safely place weight on their oral assertions as to the 9 Bucket Rule. 

86.  Secondly, So and Tang in their witness statements both asserted that Tang had explained to the excavator workers that placing too much spoils on a dump truck would cause the spoils to slide to the front and spill over as the dump track travelled downhill, so they should assess the size of the rocks to decide on the actual quantity of rocks to put into the dumper body (with the 9 Bucket Rule as the upper limit), and make sure the loaded spoils would not exceed the height of the dumper body before the Modification.

87.  But, as explained in paragraphs 78-80 above, if the instructions were to fill the dumper body with spoils not exceeding its original height, given that the cabshield was 15 in taller than the side panels and tailgate, it would have provided sufficient protection even if the spoils slided forward in which case the Modification insisted upon by D2 would have served no useful purpose.  The Modification lends weight to the suggestion of overloading.

88.  Thirdly, So said that on the basis of 1 tonne of spoils per excavator bucket, the 9 Bucket Rule would result in a load of 9 tonnes.  When added to the net weight of the dump truck of approximately 10 tonnes, the overall weight of the laden dump truck was about 19 tonnes and would not exceed the limit of 24 tonnes.  But if the overall weight of a dump truck under the 9 Bucket Rule was only 19 tonnes, which was significantly less than the Sample Results for a dump truck under original configuration that was not fully loaded, again the cabshield would have provided sufficient protection and the Modification would have been unnecessary.  Further, So’s evidence must be viewed in the context that he had no idea of the specific 9 Bucket Rule until he asked Tang about this after the Accident, and he just relied on Tang because he considered Tang to be experienced and competent.

89.  Fourthly, So said he had given clear guideline to dump truck drivers during toolbox talks that they were not to leave the loading point if their dump trucks were overloaded.  But, as seen in paragraph 65 above, Tang explained that generally dump truck drivers would remain in the driver cab (since it would only take 6-10 minutes for each loading), and would not have observed the loading process.  So’s assertion rings hollow and I reject it.

90.  On balance and taking into account all the circumstances, I accept the plaintiff’s and Mok’s evidence and hold that there had been a practice of overloading their dump trucks (including the Dumper) with spoils beyond the statutory maximum limit, and that such practice was facilitated by the Modification.  There is no evidence of deviation from such practice at the time of the Accident, and taking into account all circumstances, I also find on the balance of probabilities that the Dumper was so overloaded at the time of the Accident.

(j)    Brake failure

91.  The plaintiff admitted that before he stepped hard on the footbrake pedal as the Dumper came down the Ramp and got no response, he did not know the brakes would fail.  But since he could not reduce speed upon hard application of brakes, it necessarily meant brake failure even though he did not expressly say so in the Plaintiff Declaration.  Even though the plaintiff did not know what exactly caused the brake failure (but he believed it was due to overloading), the LD Officers had no difficulty in understanding what he meant in the Plaintiff Declaration for they summarised in the LD Report that “[when the plaintiff] tried to slow down the dump truck before approaching to a bend at his right side, the brake failed to response”.

92.  The plaintiff frankly accepted his inability to reduce speed did not necessarily mean the brakes were mechanically defective.  He believed that without any overloading it might have been possible for the Dumper to reduce speed as it came down the Ramp.  He explained that in his experience the brake mechanism slowed down a vehicle by friction that produced heat energy, so overloading was hazardous because hard application of brakes was required to produce the greater friction necessary to reduce the speed of an overloaded dump truck going down a gradient, and that when this happened time and again the braking system’s heat energy might build up to a point to cause brake fade that would affect braking performance.

93.  On balance, I agree there was no identifiable mechanical defect of the Dumper’s brakes, which the plaintiff fairly accepted and which is supported by the maintenance/inspection records.  I do not think, as Mr Chan suggested, there had been a shift of the plaintiff’s case from defective brakes to reduced-efficiency brakes.  It is all along clear that the plaintiff’s case was based on brakes that “become defective at that time” (see paragraph 4(m) of the Statement of Claim), ie brake failure, and not some inherent mechanical defect.

94.  Bearing in mind that the plaintiff was an experienced dump truck driver well familiar with the Haul Road and surrounding landscape, that I have found him to be a careful and slow driver, that he was well aware of the need to corner the Bend slowly and carefully, and that I have found there are no other reasons for any inattention on his part, as Ms Cheng rightly asked, what else could have been the reason for the Dumper to go over the Edge?  On the balance of probabilities, I find it was plainly due to brake failure at the time when the plaintiff tried to reduce speed by stepping hard on the footbrake pedal as the Dumper came down the Ramp. 

95.  It is therefore unsurprising that no brake marks were found.  Since brake marks (eg wheel marks on dirt ground) are made when the brakes lock up and cause the tyres to slide, one does not expect to find brake marks when there is brake failure.  In any event, any brake mark would have disappeared given the traffic (eg the crawler crane, excavator and Van seen in the Later Photos) and works (eg relocation of the Bend Blast Fences) on the Ramp and Mid-Bench before the LD Visit.

96.  By reason of the above analysis and the plaintiff’s evidence which I accept, I also find on the balance of probabilities that such brake failure was due to overloading of the Dumper at the time of the Accident. But even if I am wrong and the brake failure was due to an unknown cause, I still have to go on to consider whether the defendants should be liable for the Accident. 

(k)   Reasonable foreseeability

97.  Mr Chan submitted that because of the peculiar nature of the Accident in which a fully loaded 24-tonne dump truck travelled at a higher than usual speed along the Haul Road and went over the Edge at the Mid-Bench without any avoidance action taken (as opposed to any fall of person over the Edge), it was not reasonably foreseeable by the defendants as employer, occupiers and/or contractors of the Site, and hence the plaintiff failed to establish that the outside Edge along the Mid-Bench opposite the Bend was an unsafe workplace in the present context whether under common law or under the Factories and Industrial Undertakings Ordinance Cap. 59 (“FIUO”) and/or the Occupational Health and Safety Ordinance Cap. 509 (“OHSO”). 

98.  Mr Chan relied on the principles in Baker v Quantum Clothing Group Limited [2011] PIQR P14 to which neither Ms Cheng nor I have any quarrel.  It was held in Baker that safety was not an unchanging concept; rather it involved a judgment which was objectively assessed by reference to the knowledge and standards of the time.  The fact that a single person had suffered injury due to some feature of the workplace would not be, without more, proof that the workplace was unsafe (p. P366).  Since safety is a relative concept, reasonable foreseeability (eg what might reasonably be foreseen by a reasonable and prudent employer) must play a part in determining whether a place is/was safe (pp. P367 - P378).  “The concept of reasonable foreseeability of a risk is distinct from the question whether it was reasonably practicable to avoid it …… It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk.  Thus for the purpose of deciding the issue of reasonably practicability, it is assumed that the risk was reasonably foreseeable” (p. P380).[1]

99.  In my view, given the layout, design and width of the Haul Road with the blind tight-turn right-angle Bend immediately at the bottom of the fairly steep Ramp and nothing more than a low Soil Berm at the outside Edge, and further given that the defendants knew the Haul Road would be regularly used by fully laden 24-tonne dump trucks (about 20-30 delivery cycles a day for each dump truck), there was a real and foreseeable risk of a laden dump truck accidentally leaving the Haul Road at/near the Bend on the Mid-Bench and falling over the open unprotected outside Edge upon descent down the Ramp and/or cornering the sharp Bend.  Since the Haul Road was for vehicle usage, I do not agree that reasonable foreseeability of danger would be limited to fall of a person.  I am also of the view that it was reasonably foreseeable that the extra weight of spoils carried by D1’s dump trucks (including the Dumper) as a result of overloading beyond the statutory maximum load would have adverse effect on the working condition and vehicle performance of such dump trucks, especially when they had to perform many delivery cycles each workday and when the condition/layout of the Haul Road described above obviously demanded both driving skill and effective brakes.

100.  The question is whether Mr Chan’s suggestion of the “peculiar nature” of the Dumper falling over the Edge in the present context has any impact on the reasonable foreseeability of harm discussed above.  But upon enquiry by the court during final submissions, Mr Chan did not cite any authority for saying this would necessarily bring it outside the reasonable foreseeability of “vehicle leaving bench”.

101.  To satisfy the requirement of reasonable foreseeability, neither the precise extent of the damage nor the precise manner of its infliction need be foreseeable.  The leading authority is Hughes v Lord Advocate [1963] AC 837, but the principle has been succinctly summarised by Lord Denning MR in Stewart v West African Terminals, Ltd & anor [1964] 2 Lloyd’s Rep 371, 375:[2]

“…… it is not necessary that the precise concatenation of circumstances would be envisaged. If the consequence was one which was within the general range which any reasonable person might foresee (and was not of an entirely different kind which one could anticipate), then it was within the rule that a person who has been guilty of negligence is liable for the consequences. ……”

102.  As Lord Hoffmann said in Jolley v Sutton London Borough Council [2000] 3 All ER 409, 418, “what must be foreseen is not the precise injury which occurred but injury of a given description.  The foreseeability is not in the particulars but the genus. ……”[3] Lord Hope in Robb v Salamis (M & I)  Ltd [2007] 2 All ER 97, 109, said:

“…… The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened …… As Lord Reid said in Hughes v Lord Advocate [1963] 1 All ER 705 at 708 …… the fact that an accident was caused by a known source of danger but in a way that could not have been foreseen affords no defence.”

103.  In Billington v McGuire & anor [2001] EWCA Civ 273, the defendant parked his van and trailer by the nearside kerb effectively blocking the cycle lane.  The claimant riding her bicycle on the cycle lane did not see or notice the trailer until it appeared in her 5-10 yard, head down, riding vision.  She hit it head on and did not swerve.  The judge dismissed the claim on the basis that “no one could reasonably have foreseen that [the claimant] or any cyclist riding down this straight road … towards a van and trailer ... for about a minute after it had been parked, would continue straight into it”.  After citing the English authorities referred to above, the Court of Appeal by majority considered it was not appropriate to consider the foreseeability of the accident which in fact occurred as opposed to the foreseeability of the possibility that a cyclist would be exposed to a risk of injury, and they overturned the trial judge’s finding to hold that the defendant could have parked elsewhere but what he chose to do denied the claimant of the use of the cycle lane which was for the convenience and safety of cyclists.  He was careless of the claimant’s safety and was negligent.

104.  In my view, the circumstances of the Accident do not bring it outside the realm of reasonable foreseeability of the risk of “vehicle leaving bench”.

(l)    Reasonable practicability

105.  Mr Chan referred to Baker at p.P371 in which Lord Mance said as follows:

“…… The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise ……”

106.  Lord Mance considered the employer was simply required to show that he did all that was reasonably practicable (see p. P372), and he took into account the factors mentioned by Lord Reid in Marshall v Gatham Co [1954] AC 360, 373:

“…. the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security.”

107.  Edge protection The LD Report recommended that “[adequate] steps shall be taken to reduce the risk of fall-over of vehicle across the edge of the ramp, for instance, provision of suitable barrier at the edge of the ramp, in particular, at the location around the [Bend]”.  So also agreed that measures (if feasible) should be adopted to prevent vehicles falling over the Edge.

108.  The remedial actions proposed in the preliminary accident report dated 7 December 2007 prepared by Rickard (“Accident Report”) (the contents of which So agreed) included increasing berm height along the crest of the Edge to 1 m, and adding protective barriers to three risk locations at the outside Edge directly in front of downhill ramps, including the outside Edge where the Dumper fell over.  The proposed protective barriers included Blocks sunk into the Soil/Rock Berm connected by steel channel, which (according to So) would add resistence to any collision force.

109.  But when he gave evidence, So claimed that about a week after the Accident Report such remedial actions were abandoned, and the Haul Road was back to having only a Soil Berm (but with a more even crest) at the outside Edge:

(a)     Since the Blocks stood on uneven ground, Rickard could not figure out how to connect them by steel channel whether by means of joints or welding.

(b)     Free-standing Blocks sunk in shallow trench should not be placed at the Edge lest they might be knocked down upon collision, roll down any incline below the Edge and cause damage.

(c)     Haul roads were temporary by nature and would quickly disappear as blasting progressed, hence lowering larger concrete blocks into a deeper trench was not feasible for they would have to be moved “every day”.

110.  On balance, I am unable to accept So’s evidence.  First, the defendants did not even discover or disclose the Accident Report until enquiry by the court at the Pre-trial Review on 21 January 2013.[4]  It was only after the disclosure of the Accident Report that So’s assertions about the non-feasibility of strong edge protection came out for the first time in his evidence, but they were never mentioned in his witness statements.  Interestingly, there was no revised or final report to the “preliminary” Accident Report when, according to So, the remedial actions proposed therein were abandoned within a week, and no explanation was forthcoming as to why there was no such revised or final report when regulation 15(1)(f)-(g) of the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations Cap 59Z required safety officers to make recommendations to the proprietor to prevent “similar accidents” or “similar suffering of any bodily injury”. On balance, I find that So was merely trying to play down what was obvious from the contemporaneous documents, ie the Later Photos showed that right after the Accident D4’s production department was already starting to put in place some of Rickard’s proposals for remedial action.

111.  Secondly, So all along knew the Blocks could be and were used as Edge barrier.  In his 1^st witness statement, he said the Berm Blocks (including a free-standing Block) had the function of “防止車輛墮下山坡” and rather it was the Rock Berm that was for avoiding minor collision.  But when he gave evidence, he shifted to say that Blocks were used to secure the footings of Blast Fences, but if placed against the Soil Berm they served the function of preventing minor collision.  I note Tang gave evidence that Blocks had dual purpose, ie to secure the footings of Blast Fences and to prevent collision when placed against the Soil Berm.  These barrier Blocks prior to the Accident as referred to by Tang and So were free-standing with no suggestion of any need to connect them by steel channel (even though I accept such connection would add resistence to any collision force) or any fear that they would be knocked downhill.  Significantly, right after the Accident the free-standing Berm Block was placed by D4’s production department where the Dumper fell over and directly above the Slope, and this was said by So to serve the purpose of preventing vehicle falling over.

112.  Thirdly, So’s tendency to embellish his evidence is also illustrated by his assertion that even though the purpose of Blast Fences were to catch flyrocks during blasting, they would be temporarily parked after blasting at locations that would not cause obstruction, “又可以發揮阻住啲車作用，咪擺住喺到”.  I am not convinced that Blast Fences would serve such purpose, but it appears that So was prepared to say whatever he perceived would suit the defendants’ case.

113.  Fourthly, as I have found, haul roads would not necessarily change “every day” (as So suggested).  Indeed, the Haul Road had been in use for quite some time.  But even if rock-blasting always necessitated haul road route change, large crawler cranes and smaller cranes would have to be deployed in any event to remove Blast Fences and their footing Blocks after blasting, and I cannot see how moving a few more barrier Blocks would pose any practical problem.  Anyway, the Accident Report only identified three risk locations, and there is no suggestion that blasting would take place at/near those locations all the time.

114.  Fifthly, the three risk locations identified in the Accident Report were directly in front of downhill ramps, hence the barrier Blocks were not intended to be placed on a gradient (eg on the outside Edge along the ramps).  To take the example of the risk location where the Dumper fell over the Edge, the Scene and Later Photos showed it was on a level part of the Mid-Bench right at the bottom of the Ramp, and that stretch of the open outside Edge opposite the Bend would not have required a large number of barrier Blocks. I cannot see why connecting barrier Blocks (which already had steel channels on their topsides and on their sides) or sinking them into trenches at just three specific risk locations or at least at the Accident location (which was rather level) would be impracticable.

115.  Given my findings as to how the Accident happened, I further find that the loading practice as well as any training and supervision over the loading of spoils at the Summit fell short of what would be necessary to ensure the safety of dump truck drivers including the plaintiff.  In my view, the speed limit signs, one-way traffic arrangement along the Haul Road, regular maintenance/inspection of the dump trucks were insufficient precautions against the reasonably foreseeable danger of “vehicle leaving bench”, which on any count cannot be considered to be a negligible risk.  In my view, such risk is real and plainly foreseeable.  The proposed remedial measure of strong edge protection with barrier Blocks would go a long way to eliminating such risk, and the effort and cost necessary for putting it in place would not be substantial bearing in mind the ready availability of Blocks on the Site.  I come to the conclusion that such precaution would be reasonably practicable.

116.  Weighbridge  The plaintiff suggested that a weighbridge could be installed at the crusher so that if a particular load of spoils was found to be excessive upon being weighed, the excavator workers at the Summit could be alerted to make adjustments for the next load.  But So said a weighbridge was usually for on-road external transportation (which accorded with Lam’s and Tang’s experience and with the plaintiff’s own previous experience at a Tseung Kwan O construction site) since the government would bill the contractor for construction waste disposal according to weight.  Overloaded vehicles would be denied entry to the government facility, so dump trucks laden with construction waste had to be weighed before leaving for such facility in order to avoid any futile trip.

117.  Tang agreed in principle that it was possible to install a weighbridge on level ground at the crusher to check the weight of laden dump trucks upon arrival, but there would be difficulty since the crusher was located on the hillside and there was only just enough room to make a three-point turn to back the dump truck towards the crusher for discharge of spoils.

118.  In my view, the installation of a weighbridge is not reasonably practicable.  If it were installed on the limited level ground at the crusher, there would be no other space.  Even if the weighbridge is pit-mounted, there must be space for the measuring equipment and for personnel to monitor the equipment and communicate with the excavator workers. 

(m)  Conclusion on liability

119.  It follows from the above findings that I do not accept the defendants’ case.  I find they were negligent (and D1 was in breach of his employer’s duties) in failing to have a safe system of work (ie overloading the Dumper generally and at the time of the Accident) or a safe place of work (ie failing to have effective barrier at the Edge where the Dumper fell over the Soil Berm), which caused the Accident and the plaintiff’s personal injuries.  In light of the above, the defendants are also in breach of regulation 38(1) of the Construction Sites (Safety) Regulations Cap.59I (“CSSR”), and sections 6A(1) and (2)(a)-(c) and (e) of the FIUO and OHSO.

120.  Mr Chan suggested that regulation 38(1)-(2) of the CSSR was inapplicable since regulation 38B(3) excludes any opening, corner or edge exposed in the course of demolition operations if adequate precautions have been taken to prevent any person from being exposed to the risk of falling therefrom.  I do not agree.  First, the open outside Edge of the Haul Road was not exposed in the course of demolition operations.  It was not a blasting opening or edge. Haul roads and haul road benches were constructed to facilitate removal of spoils away from the blast area after blasting.  Secondly, I have found that adequate precautions had not been taken.  The defendants are liable to the plaintiff who is not contributorily negligent.

III.   QUANTUM

121.  At the time of the Accident, the plaintiff was 56 years old.  The Wife was a full-time helper prior to the Accident, and their children are grown up and living abroad.  It is agreed that the plaintiff’s average pre-Accident monthly earnings as a dump truck driver was HK$15,600.00.  He enjoyed good health prior to the Accident.

122.  The plaintiff had multiple complaints, including dizziness, headache, blurred vision, eye pain, persistent pain in his low back, left hip and left lower limb that disturbed his sleep and increased with prolonged sitting, walking, carrying weight, climbing stairs, weather change and coughing, persistent pain in chest, right knee, left shoulder, numbness of both hands/feet.  The plaintiff gave evidence that his back pain was worse than in 2010, and he could not sit for long otherwise he would have heat sensation at his back.

123.  The plaintiff also claimed to feel worried on using public transportation.  The pain and dizziness made him irritable and he sometimes thought of committing suicide.  He had dizzy spells and had fallen down unconscious at home.  He had insomnia, poor memory and depressed mood.  He seldom ventured out.  There were occasions when he lost control (as corroborated by the Wife) by scolding a bus driver and making a scene at a district councillor’s office.  He claimed he was unable to work after the Accident.

(a)   Injuries and treatment

124.  According to the plaintiff, he had a spell of unconsciousness after the Accident, and when he came to he was still drowsy/dizzy and he had severe pain.  He was sent to the accident and emergency department (“AED”) of Queen Mary Hospital (“QMH”) by ambulance.  He complained of chest, epigastric and lower back pain.  Physical examination revealed periorbital swelling and bruises, tenderness and swelling over left maxilla and the T12 spine.  Bilateral chest wall and upper abdomen were tender.  He was admitted to the orthopaedic department for further treatment.  He was found to suffer from compression fracture of T11 vertebra without neurological deficit, undisplaced fracture of the left orbital wall and head injury.  He was treated conservatively with thoracolumbar orthosis. 

125.  The plaintiff was referred for psychological consultation during his hospital stay and was seen on 19 December 2007.  His mood was low, and he complained of pain, daytime flashbacks and nightmares disrupting sleep.  He had intense fear that he might lose his life when the Dumper fell down the Slope, and felt fortunate to be alive.  Clinical impression was that his anxiety reactions were understandable in view of the trauma.

126.  On 20 December 2007, the plaintiff was transferred to Fung Yiu King Hospital (“FYKH”) for rehabilitation.  He was discharged on 22 December 2007 and attended outpatient follow up.

127.  The plaintiff received physiotherapy and occupational therapy treatment at FYKH from 21 December 2007 to 29 February 2008.  He had severe back pain at T11 level.  He could perform basic bed mobility/transfer, but needed maximum assistance in sitting up from bed.  He could stand by holding onto walking frame, and walk with a frame for a few metres with major assistance from two persons.  But he needed bilateral limb propping to relieve back pain in unsupported sitting, and maximum assistance in transfer, dressing, toileting and bathing.  He was allowed to take off the orthosis on 1 February 2008.  Upon discharge, he was able to walk with a pair of elbow crutches on level ground and stairs independently with remaining mild back pain.  He could manage basic activities of daily living (“ADL”) at bedside with unilateral railing support and intermittent rest.  He could bathe independently when sitting on bath seat with set up of environment. He managed toileting with frame.

128.  On 22 December 2008, the neurosurgery clinic at QMH referred the plaintiff for psychiatric consultation for flashbacks and insomnia compatible with post-traumatic stress disorder (“PTSD”).  On 9 January 2009, the plaintiff attended orthopedic follow up at QMH and complained of persistent low back pain and inability to work.  He was arranged to be admitted to Duchess of Kent Children’s Hospital (“DCKH”) for assessment of his chronic low back pain.

129.  The plaintiff was admitted to DCKH on 2 February 2009.  Physical examination showed he had mechanical low back pain but no neurological deficit.  He also had left hip and knee pain, persistent giddiness, left facial pain and tinnitus, but otherwise he was able to walk unaided.  There was no significant weakness in both lower limbs.  Functionally he was independent with one elbow crutch in his ADL.  DCKH considered no further training or surgical intervention was indicated.  He was discharged on 5 February 2009.

130.  According to the DKCH medical records, the plaintiff had multiple physical complaints, but it appeared his story was inconsistent with the pathology in the sense that he complained of upper and lower limbs pain as well as back and hip pain.  He also had numbness all over the body which was inconsistent in nature.  He had received prolonged course of rehabilitation, but the fracture had healed and was unlikely to be the major course of his pain.  It was noted he had difficulty in adjusting to the stresses after the injury complicated by PTSD and compensation issues.  “Overall it seem towards that he has significant problem rather than just his back and that the fracture is heal and is unlikely to be the major cause of his pain.  He would probably need to be continue treated the psychiatrist and clinical psychologist for his post traumatic stress disorder. …… Complicated by posttraumatic stress disorder, compensation issues. Waddell’s sign +ve” He was not considered suitable for the rehabilitation programme, and assessment by medical assessment board was arranged.

131.  The plaintiff was seen at the psychiatric clinic of Kowloon Hospital (“KH”) since 16 February 2009. He presented with low mood, irritability, insomnia, poor concentration, repeated reliving of the Accident in flashbacks/nightmares, and avoidance of situations and places reminiscent of the Accident.  He was distressed by his financial condition and inability to work.  He was diagnosed to have PTSD and put on medication with psychologist intervention.

132.  The plaintiff had psychiatric follow up on 9 and 23 March 2009 and 1 April 2009.  On 1 April 2009, he was less irritable but subjectively depressed.  He was distressed by pain symptom and requested sick leave.  The plaintiff in evidence denied he sought psychiatric treatment at KH for the purpose of getting sick leave.

133.  Despite medication, the plaintiff was distressed by low back pain and was easily irritable.  When seen on psychiatric follow up on 13 May 2009, his mood was depressed and irritable at times.  He had no repeated daytime flashbacks, no psychotic symptoms or suicidal idea, but still had nightmares.  He was excessively worried about his financial condition and his work.  Clinical diagnosis was PTSD in partial remission, and he was arranged to have follow up.

134.  The plaintiff received psychological counselling service on 1 April 2009.  The clinical psychologist found he appeared to exhibit post-traumatic problems and mild depressive features in adjusting to the Accident.  Psychological intervention was continued.

135.  There were numerous occupational therapy and rehabilitation outcome reports from Kwong Wah Hospital (“KWH”) from 25 August 2008 to 6 January 2009 with multiple complaints.  The plaintiff was referred to the neurological clinic for persistent headache and dizziness (but no neurological abnormality was noted), to the ENT clinic for complaint of hearing loss and bilateral tinnitus (but the tinnitus was non-specific), to the ophthalmology clinic for undisplaced orbital fracture (but no significant eye injury was noted and there no causal connection for his suboptimal visual acuity), and to the pain clinic at Queen Elizabeth Hospital (“QEH”) for persistent low back pain radiating to his left leg.  The plaintiff was first seen at the pain clinic on 10 August 2009 and was put on medication.

136.  At the KH psychiatric follow up on 27 September 2010, the plaintiff requested for a letter to cancel his driving licence.  The plaintiff in evidence denied he made such request because he did not want to return to work as a dump truck driver.  He claimed he could not drive dump truck when he was on psychiatric medication.

137.  The plaintiff and the Wife both confirmed he had a spell of herbalist treatment at KWH.  He also attended various government outpatient clinics between July 2009 and May 2011, and he still does including attending psychiatric and psychological follow up.

138.  According to the Certificate of Assessment dated 16 July 2010, the plaintiff suffered 30% loss of earning capacity.

(b)   Jt Ortho Report

139.  According to the Jt Ortho Report, Drs Lau and Ho agreed the compression fracture of T11 veterbra, undisplaced facture of the left orbital wall and head injury were caused by the Accident.  At the joint examination, the plaintiff was still complaining of significant pain in his back, problems with ADL and inability to return to work.  Drs Lau and Ho agreed that apart from back and left hip/knee pain, his complaints of numbness, pain or neurological deficit of upper/lower limbs were not documented.  There were significant clinical inconsistencies, and his complaints could not be explained by the T11 wedge fracture.  He also suffered many other disabilities which after consultations and investigations were found to have no causal relationship.  He had diffuse tenderness over the lower half of the spine and observed to have multiple positive inorganic signs for low back pain.  Although he had significant degenerative changes at the lower lumbar spine, lordotic curvature was preserved.

140.  Dr Lau considered that local tenderness over T11 level suggested there was still pain after healing of the fracture.  With 30% anterior wedging, this altered the spinal mechanic and increased strain on posterior structures of the spinal column giving rise to back pain.  Dr Ho opined that the lack of muscle spasm over the back and the preservation of lordotic curvature suggested that pain had decreased. But both experts agreed the positive Waddell signs suggested that the plaintiff was exaggerating his back pain.  Dr Lau and Dr Ho considered he should have no problem with ADL, and they assessed his whole person impairment for orthoapedic disabilities to be 10% and 7% respectively.

(c)   Jt Psy Report

141.  In the Jt Psy Report, Prof Lieh Mak suggested there was likelihood of symptom fabrication over the plaintiff’s claim of bleeding, loss of consciousness, memory impairment, dizziness, depressed mood, pain and multiple physical complaints.

142.  For bleeding, I accept the plaintiff had bleeding at the Accident scene.  After the plaintiff was rescued, Yau observed blood stains on his person.

143.  For loss of consciousness, after the Dumper came to a stop at the Low-Bench, the plaintiff could not open the side door and he crawled to the centre of the driver cab to cry for help.  He had difficulty breathing and then fainted.  Lam helped to carry the plaintiff out from the driver cab, which contradicts the records of QEH’s AED (which Prof Lieh Mak relied) that the plaintiff walked out on his own.  The plaintiff agreed that he came to after being rescued but he was still dizzy and half-conscious. Lam and So both talked to the plaintiff after he was rescued to test his response, and he was able to respond.  On balance, I find the plaintiff had transient loss of consciousness in the driver cab, that he came to after he was rescued, and that he was still half-conscious in view of the trauma, dizziness and pain, but he was able to respond to some simple questions.  Although the records of QEH’s AED noted Glasgow coma scale of 15/15 and no loss of consciousness, it did not preclude the plaintiff from having had brief loss of consciousness at the Accident scene.

144.  Prof Lieh Mak suggested that the plaintiff fabricated his complaint of memory impairment.  But as early as during his initial hospital stay his relatives already noticed short-term memory impairment and his MMSE examination score was 17/30 (ie moderate cognitive impairment).  I therefore accept there was history of memory impairment, but as evident from the plaintiff’s ability to give detailed evidence in court and to recollect the contents of various relevant documents, this problem has largely resolved.

145.  In respect of dizziness, such complaint had been repeatedly recorded in the medical records, and medication had been prescribed.  I accept there was headache and dizziness at first given the plaintiff’s head injury, especially during his hospital stays.  Indeed, neurosurgeons considered them as symptoms of post-concussional disorder.  But the plaintiff should have substantially recovered from this condition.  His manner in giving evidence at trial and the surveillance recording do not support a state of constant dizziness.

146.  As regards depressed mood, Dr Tsai opined that the plaintiff was not suffering from any formal depressive disorder.  Whilst I agree that the plaintiff had on and off depressed mood given the trauma and rehabilitation, it did not amount to any definite depressive disorder.  Further, the surveillance recording and his interest in horse-betting and mahjong game showed that his mood had largely improved.

147.  As regards pain and other multiple complaints, I accept there had been exaggeration of pain.  Whilst there must have been severe pain during hospitalisation and orthopaedic rehabilitation with the T11 wedge fracture and there would still be residual pain, the pain would not be as severe as presented upon healing of the fracture.  The surveillance recording showed that the plaintiff was less troubled by pain than he claimed.  He sat for about 2 hours during the interview by the psychiatric experts, and even though he asked for breaks when he gave evidence I am not impressed that he was in severe and/or constant pain.  As regards his other multiple complaints, some had physical basis (eg sensorineural hearing loss, right retinal hole, cataracts etc) and others did not, but there was absence of causal relationship with the Accident for most of these complaints (see discussion on the Jt Ortho Report in paragraphs 139-140 above).

148.  Dr Tsai opined that the plaintiff suffered from PTSD which was in partial remission.  Prof Lieh Mak disagreed and suggested that he did not suffer any psychiatric disorder.  For present purpose, I shall concentrate on PTSD which was Dr Tsai’s diagnosis.

149.  Prof Lieh Mak said the plaintiff did not have a response of intense fear, helplessness or horror to satisfy the criteria of PTSD.  In my view, whilst the plaintiff did let the Dumper go over the Edge and he was able to crawl to the middle of the driver cab, it does not mean there was no intense fear, helplessness or horror in respect of the drop down the Slope. I accept that he was scared of the prospect.

150.  After the Accident, the plaintiff had been bedridden and distressed by pain, and had to wear the orthosis.  He had flashbacks and nightmares as early as when he was hospitalised at QMH, and even though he was able to tell himself it was normal after the trauma, these flashbacks/nightmares persisted.  He became anxious in taking transport and avoided sitting in front.  He avoided places reminiscent of the Accident, expressed worries about work and finances, and generally lost interest in things.  Prof Lieh Mak said these complaints were subjective, and she dismissed them because of the plaintiff’s overall unreliability.  I do not think his symptoms can be so lightly brushed aside.  In my view, his symptoms and complaints are understandable in view of the trauma of the Accident and his suffering during rehabilitation. As confirmed by the Wife, the plaintiff did exhibit irritability by making public scenes.

151.  Dr Tsai rated the plaintiff in class 3 which inferred that the impairments were compatible with some but not all useful functioning.  I agree the plaintiff had PTSD which was in partial remission.  I also think his psychiatric condition improved after he received psychiatric and psychological treatment, and he did/does not have such severe or persistent psychiatric symptoms as he claimed.

(d)   Surveillance

152.  Surveillance recording was made of the plaintiff on 16 and 31 January 2010.  On 16 January 2010, he was seen walking on the pavement and crossing the road on an elbow crutch and he sat down at a shop to read newspapers.  On 31 January 2010, the plaintiff on an elbow crutch was seen walking to a Jockey Club betting centre.  He went in and out of the betting centre, and whilst outside he would sit down to read his newspaper.  At times he would cross his legs at the knee.  Then he walked back to a shop in a building to play mahjong.

153.  I note the plaintiff was observed to walk easily and not leaning on the elbow crutch.  He was confident enough to cross the road without using pedestrian crossings.  He could take steps backwards and negotiate steps/kerbs easily.  He could swivel his head with ease.

154.  The plaintiff claimed the psychiatrists told him to engage in horse-betting and mahjong-playing to distract him from his pain.  He did not make prior arrangements to play mahjong that day.  It happened that a player left and the plaintiff sat in his place and played for just over an hour. He left his elbow crutch away from him when he sat down to play mahjong.  He claimed he left the elbow crutch when he went to relieve himself, and anyway he could walk a few steps by leaning on things.

155.  In my view, the plaintiff appeared relaxed and there were no expressions of pain.  I do not agree that throughout the time he was under observation he had to put up with constant pain.  He appeared absorbed in horse-betting and eager to play mahjong.  He walked with an easy gait and was not really reliant on the elbow crutch.  Drs Lau and Ho are right in saying that the surveillance recording showed the plaintiff’s back condition and mobility were better than what he complained of.

(e)   Pain, suffering and loss of amenities

156.  In light of the above findings and after considering the authorities cited by Ms Cheng[5] and Mr Chan,[6] I consider that HK$440,000.00 to be an appropriate award under this head of damages.

(f)    Pre-trial loss of earnings

157.  Drs Lau and Ho considered that orthopaedic sick leave should be up to February 2009.  They agreed that the plaintiff could resume his pre-Accident occupation as a dump truck driver with limited capacity in that he needed to avoid driving continuously for over an hour at one time.  He could not lift or carry heavy objects.  Otherwise he was fit for light work such as security guard, salesman of light goods, petrol station worker, light cleaning worker or carpark attendant.  Dr Tsai said the plaintiff was unable to return to his previous work as a dump truck driver, but he would be capable of handling jobs that did not require prolonged sitting or standing, eg casual worker, office assistant or shopkeeper.  Dr Tsai endorsed the sick leave granted by KH.

158.  In fact, the plaintiff had continuous sick leave from the time of the Accident to date.  Psychiatric sick leave granted by KH for PTSD ceased on 6 November 2009.  Thereafter, sick leave was granted by QEH’s pain clinic for “multiple trauma”.  However, the mere production of medical certificates does not require the court to find that a plaintiff is justified in not working during the period covered by the certificates.[7]

159.  I do not agree with Mr Chan’s suggestion that the appropriate sick leave period should be as agreed by Drs Lau and Ho.  I have found that the plaintiff suffered from PTSD.  The plaintiff started psychiatric and psychological treatment in February and April 2009 respectively.  However, by May 2009 his PTSD was in partial remission, and his psychiatric sick leave ceased by November 2009.  After that he had multiple complaints which did not impress Drs Lau and Ho as being causally connected to the Accident.  Although I accept he would still have some residual pain and psychiatric disability, his clinical picture should be better than as presented.  On balance I find the plaintiff should be able to return to gainful employment in 2010.

160.  But I do not think the plaintiff would be fit to return to work as a dump truck driver.  Mr Chan submitted he could take a break between delivery cycles.  In my view, such suggestion is unrealistic, especially when Tang explained that drivers usually remained in the driver cab for the 6-10 minutes it took for each loading.  Further, dump truck drivers had to do many delivery cycles a day which required a lot of stamina.  I find it is not a job that gives the luxury of a break after every hour of driving as recommended by Drs Lau and Ho.  The plaintiff would have to seek other forms of work as suggested by the experts.  Given the age of the plaintiff and his lack of experience in such other work, I agree with Ms Cheng that HK$6,000.00 is a fair sum to reflect the average monthly wages of suitable alternative work.

161.  In the circumstances, the award for the plaintiff’s pre-trial loss of earnings is HK$774,000.00 (ie HK$15,600.00 x 25 months = HK$390,000.00 and (HK$15,600.00 – HK$6,000.00) x 40 months = HK$384,000.00).

(g)   Pre-trial loss of earnings

162.  I agree that but for the Accident the plaintiff could have worked until at least 65 years.  After all, Mok only retired when he was 67 years old.  I accept that a multiplier of 3 is appropriate.  Thus, the plaintiff’s loss of future earnings are (HK$15,600.00 – HK$6,000.00) x 3 x 12 = HK$345,600.00.

(h)   Loss of MPF benefits

163.  The plaintiff’s loss under this head should be (HK$774,000.00 + HK$345,600.00) x 5% = HK$55,980.00.

(i)    Loss of earning capacity

164.  Since the plaintiff would be less competitive than comparable workers who are able-bodied, should he be thrown into the labour market, he would be under a real risk of being prejudiced and would probably need a longer period of time before he can find himself suitable employment in the open market.  But in light of his limited remaining working life, I do not think the risk is a substantial one.  That being the case, I award HK$50,000.00 for impairment of his earning capacity as conceded in the Answer to the Revised Statement of Damages.

(j)    Future medical expenses

165.  Drs Lau and Ho opined that the plaintiff had reached maximum medical improvement and would only require analgesics on a need basis.  As for his psychiatric condition, even though I have found that his condition was milder than presented and he should have been able to return to gainful employment in 2010, it does not mean he no longer needed any psychiatric/psychological care and attention at all.  Dr Tsai suggested continuation with psychiatric pharmacotherapy for 4-6 months in the public sector as he had attained progress, and further psychotherapy with the clinical psychologist at KH for another 3-4 sessions, preferably at monthly intervals.  Private sector treatment is not justified. In fact, after the Jt Psy Report the plaintiff had already received such treatment in the public sector and the incurred expenses are dealt with below.  I do not make any award under this head.

(k)   Services rendered by the Wife

166.  Since 2002, the Wife worked as a home helper after completing the employees retraining course and registering with 家務通計劃.  She also had referral of casual work from co-graduates.  In 2007-2008, she secured monthly work as helper via家務通計劃 at HK$3,000.00-HK$4,000.00 per month and casual work on the weekend at HK$500.00 per day.  Her average monthly income was HK$6,000.00.

167.  After the Accident, the Wife ceased to work as a home helper in order to visit the plaintiff in hospital and look after him after discharge.  She had to accompany him whenever he went out (eg to attend physiotherapy and occupational therapy treatment and outpatient follow up). She recalled that after physiotherapy and occupational therapy courses at FYKH ceased in February 2008, the plaintiff attended a further course of physiotherapy at KWH for 3 months which was completed in mid-2008.  She also recalled that afterwards she attended KWH to pick up Chinese herbalist medicine for the plaintiff, and accompanied him for acupuncture treatment.  The Wife said that although she was less busy by that stage, she still had to look after and cook for the plaintiff at home, accompany him when he ventured out, and help him to the toilet and assist in bathing.

168.  Since the plaintiff had problems with mobility after the Accident and he lived on the 6^th floor of a tenement building without lift service, it is reasonable for the Wife to cease work to look after him.  However, I think she could have returned to work by mid-2009 after the initial more intense stage of psychiatric and psychological treatment.  I award HK$6,000.00 x 19 months = $114,000.00 under this head of claim.

(l)    Special damages

169.  The plaintiff incurred medical expenses in the sum of HK$13,136.00. However, given my finding that some of his complaints were not causally connected with the Accident, there should be an appropriate discount, especially in the post-2009 period. I consider that it is appropriate to make an overall reduction of HK$1,500.00. Hence, I award the sum of HK$11,636.00 under this head.

170.  The defendants did not dispute the other items of special damages save for the purchase of a Japanese pain relief machine for the sum of HK$51,800.00 in November 2011.  It was not recommended by any doctor or therapist, and as evident from the surveillance recording and my findings the plaintiff’s pain should be much improved by that time.  I disallow this item of claim.  Hence, the award for other special damages is HK$22,900.00.

IV.   CONCLUSION

171.  I summarise the above awards as follows:

	HK$
Pain, suffering and loss of amenities	440,000.00
Pre-trial loss of earnings	774,000.00
Post-trial loss of earnings	345,600.00
Loss of MPF contribution	55,980.00
Loss of earning capacity	50,000.00
Services by the Wife	114,000.00
Special damages	34,536.00
	1,814,116.00
Less employees’ compensation	(636,616.73)
Total :	1,177,499.27

172.  I therefore grant judgment in favour of the plaintiff against the defendant in the sum of HK$1,177,499.27.  Interest is payable on the award for pain, suffering and loss of amenities at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and other 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.

173.  There is no reason why costs should not follow event.  I grant a costs order nisi that the defendants do pay the plaintiff costs of the action (including all costs reserved, if any) to be taxed if not agreed, and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.