WONG YUN CHIU v. UNION PRINTING CO LTD

HCPI 282/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 282 OF 2009

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REASONS FOR JUDGMENT

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1.  This is a claim for damages for personal injuries sustained in an accident at work that occurred when the plaintiff, a paper cutter employed by the defendant printing company, lifted a heavy basket of scrap paper at the defendant’s factory premises and injured his back as a result.

2.  I am satisfied that the plaintiff has succeeded on liability. I find his evidence generally very difficult to accept but the fact remains that, on this occasion, he did lift this very heavy basket of waste scrap paper, weighing some 50 to 60 pounds, with a view to lift it over and above his shoulder and to tip it into the metal cage which was usually parked at the front of the factory in question to receive scrap paper.  The top of the metal cage reached a height of just under 5 feet.  As he was trying to tip the basket over the top of the metal cage, he lost his balance and fell on the factory floor.  Whether or not he lost his balance because the basket became entangled with a part of the metal cage, or hit against it and rebounded, is of no import : he lost his balance because the basket was too heavy to be lifted up to such a height by him alone.  I do not accept the plaintiff’s suggestion that the presence of scrap paper on the floor near the metal cage contributed to him slipping and falling.  The plaintiff lost his balance and fell because the basket was too heavy for him to lift up to the height that he did. 

3.  If this occasion was the one and only time he had done this, then I think this would have been a very simple case to decide, in that what he did, to engage in this exercise by himself without seeking assistance from others, or without using the forklift that was available for his use, was clearly foolish and foolhardy. 

4.  The evidence of the defendant from Mr Lo Po Ming, a director of the defendant company, and from Mr Siu Hi Fung, the workshop manager, which I generally accept, was to the effect that it was the practice to use the forklift to lift up the basket to the level of the top of the metal cage so that the basket could just be tipped into the metal cage. Mr Siu went on to say that, at times, when the forklift was being utilised elsewhere, they also had a practice of two persons lifting the basket over the top of the metal cage. 

5.  As I have said, if this had been the only occasion when the plaintiff did this, then I would have no basis of finding any liability on the part of the defendant.  Their provision of the forklift for this work to be performed is, in my judgment, a reasonable and safe system of work.  It may not be state of the art, because, obviously, there were difficulties in using the forklift, which had to be pushed manually into position to lift the basket to the appropriate height, but still it was, in my judgment, a reasonably safe system.  Likewise, the practice of having two workers together to lift up the basket over the top of the metal cage was one which was reasonably safe, in my judgment, and would have ensured that no injury occurred to the workers in question. 

6.  Although I recognise that the plaintiff’s evidence has many, many elements of exaggeration, I ask myself whether I should accept his evidence that the occasion of this accident was not the only time that he had lifted the heavy basket on his own, and that he had done this in the past.  I want to repeat what he said towards the end of his evidence.  He said that he had been working in this factory as a paper-cutting worker for over a year.  He had this rattan basket beside him which would be used to receive the scraps of paper that were cut by the machine he was operating and which had to be discarded, and, when this basket was full of scrap paper, he would need to empty it into the metal cage, and he would do so three to four times in the course of a day.  He said that, on most occasions, he would seek help from a co-worker to lift the basket over the top of the cage to empty it and that, in the past, he had used the forklift to do that.  However, the forklift was not often used to tip the contents of the basket into the cage and the last time he had used the forklift to do so was a couple of months before the accident occurred. 

7.  The evidence of Mr Lo on point was very clear: that the forklift was always used and that nobody, whether singly or doubly, tipped the wastepaper basket over the top of the cage.  That, however, did not accord with the evidence of Mr Siu.  I found Mr Siu to be wholly credible and I accept his evidence entirely.  It was his evidence that the forklift would, on occasion, already be engaged in carrying a stack of papers at the level of the working table where the cutting process was being carried out and that it would be inconvenient, in that situation, to then use the forklift to raise the wastepaper basket to the level of the top of the cage so that it could be tipped over safely.  He said there was a practice of two people doing that when the forklift was not readily available. 

8.  So to that extent, I do not accept Mr Lo’s evidence. 

9.  The one aspect of the case that troubles me is the fact that on this very occasion, when the plaintiff brought the basket to the cage and lifted and tipped it over by himself, Mr Siu was present just a few feet away at his own cutting machine.  Of course, whilst he was engaged in the cutting work, his concentration would have been on that work. 

10.  It is not anybody’s case, and certainly not a finding that I would make, that the nature of the employment was such that the plaintiff had to be constantly supervised.  But it appears to me that it ought to have been appreciated by Mr Siu that the plaintiff had gone off on his own, not using a forklift, to carry this basket up to the cage and to tilt it into the cage.  The evidence is that, when the injury occurred to the plaintiff, Mr Siu became aware of it immediately. 

11.  Having regard to the evidence of the defendant and of the plaintiff, I find that the plaintiff did this on more than one occasion and that Mr Lo and Mr Siu were alive to the fact that the plaintiff was actually flouting the safety rule that they had imposed in respect of the way the basket was to be handled. 

12.  I conclude that that there was a breach of duty on the part of the defendant in that the defendant failed to enforce that safety rule and permitted the plaintiff to go about his work in the way that he did without admonishing or otherwise stopping him from doing so. 

13.  For these reasons, I conclude that the plaintiff has established liability on the part of the defendant. 

14.  I also conclude that the substantial part of the blame must lie with the plaintiff for taking a short cut when he could have used the forklift, or sought assistance, as he had done on the past.  He had 27 years’ experience working in printing factories and 10 years’ experience as a paper cutter.  He acknowledged that he could have lightened the basket by transferring handfuls of scrap paper into the metal cage but that he did not do so as it would have reduced his work efficiency.  He must have known that the act of lifting the heavy basket of scrap paper above his shoulders, in order to tip the basket over the top of the metal cage, might result in injury to himself and that the risk of injury was real.  He failed to have reasonable regard to his own safety when he undertook that task on his own.  Even if he thought that Mr Siu was busy at work, he could still have asked Mr Siu to help him to lift the basket.  I have had regard to the authorities referred to me, but I do so acknowledging that, of course, each case is fact sensitive. In this case, I find that the degree of contributory negligence on the part of the plaintiff is 50 per cent.  As I said above, what he did was foolish and foolhardy. 

15.  I now deal with the claim in quantum. 

16.  The plaintiff was born on 26 October 1960.  He was aged 46 at the time of the accident and is now 50 years old. 

17.  He attended the Accident & Emergency Department of Caritas Medical Centre in Shamshuipo shortly after the accident.  Physical examination revealed tenderness over the lower back, but the x-ray of the back was normal.  He was discharged with treatment.  He returned on two further occasions in April and was treated and discharged.  He was diagnosed with having suffered a back contusion. Between the end of April and 22 June 2007, he attended the General Practice Clinic of Caritas Medical Centre complaining of back pain.  Physical examination showed tenderness over the lower back.  There was no lower limb numbness and the pain was improved slightly after painkillers were taken and after physiotherapy.  He continued treatment at the outpatient clinic of the Orthopaedic Department of Caritas Medical Centre attending the first time on 22 June 2007.  Physical examination showed marked stiffness of the back due to the pain and muscle spasms.  There was no neurological sign detected at the lower limbs.  He was diagnosed to suffer from a sprained back and treated with analgesic medication and physiotherapy. 

18.  A CT scan taken on 12 March 2008 showed L4/5 bulging disc causing mild indentation of the thecal sac.  Osteophyte was seen at L3/4 level.  No other specific bony lesion was found.  His treating doctor, Dr Ho, commenting on the CT scan on 14 April 2008 noted that it was quite normal looking.  The doctor detected exaggeration on the part of the plaintiff and noted that he was not trying hard when he was tested for straight leg raising. 

19.  No abnormality was detected on the MRI of the lumbar spine performed on 5 July 2008 nor was any abnormality detected on the further MRI performed on 26 November 2008.  

20.  A functional capacity evaluation, lasting almost two hours, was performed on 4 March 2008.  This was conducted by a physiotherapist, Mr Andy Yu, who reported to Dr Ho on the same day that there were indications of sub-maximal effort on the part of the plaintiff.  A test performed to detect Waddell’s signs, used to detect malingering in patients with back pain, elicited 3 out of 5 positive signs.  3 out of 5 positive signs are considered to be clinically significant and, absent a psychological component, are suggestive of symptom magnification.  The plaintiff clearly exaggerated the demands of his job when he told Mr Yu that he frequently had to lift papers weighing more than 100 lbs and had to push carts or trolleys with a load of 1 ton.  In his evidence before me, he mentioned two items of heavy work in addition to the need to lift the wastepaper basket.  One involved stacking raw papers of a total weight of about 100 lbs onto the paper-cutting machine.  The raw paper would be lifted up by the hydraulic forklift in a stack to the appropriate level and he would slide the papers from that stack into position on the paper cutting machine.  He would not do so in one go but would lift a pile of papers from the 100 lbs stack.  He would do this 2 or 3 times, or even 4 or 5 times, in order to place the entire stack into position to be cut by the machine.  The demands of his job did not require him to lift a stack of papers weighing 100 lbs.  Further, there was no suggestion, from the evidence that I heard, that it was difficult to move a loaded mobile forklift into position on the factory premises.  I find that the heaviest demands on the plaintiff’s job as a paper-cutting worker was the need to replace periodically the cutting knife of the machine which weighed about 30 lbs and the need to lift and empty the wastepaper basket over the top of the metal cage with the assistance of a co-worker. 

21.  The plaintiff underwent occupational therapy and physiotherapy between late December 2007 and early September 2008, attending over 50 sessions. He continued to attend the Caritas Medical Centre until 7 May 2009.  He had attended the Pain Clinic in Queen Elizabeth Hospital in September 2008. He experienced severe back pain in December 2010 and January 2011 and had to see a private specialist to relieve his pain. 

22.  He was assessed by the Employees’ Compensation Ordinary Assessment Board on 7 May 2009.  The Board issued a certificate on 21 May 2009, recording the sick leave that he received from the day of the accident on 16 April 2007 to 7 May 2009 and certifying that he suffered 1.5% loss of earning capacity caused by the back injury he had suffered which resulted in back and leg pain. 

23.  I turn to consider the expert evidence.  The plaintiff was first examined by Dr Lam Kwong Chin, on the instructions of the defendant’s insurers’ loss adjusters.  Dr Lam examined him on 15 April 2008.  In his report dated 13 May 2008, Dr Lam noted that, upon examination, the plaintiff complained of tenderness at mid-line and both sides at lower lumbar region.  The back movement was limited in all directions. However, there was no loss of lumbar lordosis and no paraspinal muscle spasm, which showed that the back pain, if any, should not be a severe one.  He had limited straight leg raising when tested on supine posture, but it was less limited when seated.  The discrepancy showed that the actual root extension was only slightly limited and there was likely to be overlaying of symptoms. X-rays of the lumbar spine showed degenerative changes.  The normal findings on the MRI scan safely excluded any anatomical cause for the complaint of left foot numbness and weakness.  He assessed the plaintiff to suffer from a 2% impairment of the whole person, noting that in most cases of back contusion without any bony damage or neurological compromise, the residual pain should be temporary only.  He was of the opinion that the plaintiff should be able to return to his work as a printing worker.  The residual back pain, if any, might only slightly affect his capacity in weight lifting.  

24.  The plaintiff was examined by his own orthopaedic specialist, Dr Johnson Lam, a year later on 7 April 2009.  Dr Johnson Lam did not have the benefit of the earlier report of Dr K.C. Lam when he prepared his report dated 10 April 2009.  He was of the opinion that the overall picture was consistent with the more severe type of injury to the spine.  Some chronic and residual pain was probable.  At the time of his examination, there was mild muscle guarding but no muscle spasm suggesting that some genuine, residual pain was probable.  On the other hand, given that the plaintiff had tested positive to a number of Waddell’s tests, which suggested an element of exaggeration, the degree of pain and disability might not be as severe as complained of by the plaintiff.  He classified the plaintiff’s impairment as a 5% impairment of the whole person. 

25.  On the basis that his work as a printing worker required him to frequently lift paper weighing some 60 to 70 lbs, he concluded that the plaintiff would not be able to return to his pre-accident job and should only work in jobs requiring light physical demand on his back.  He endorsed the period of sick leave given to the plaintiff by the treating doctors. 

26.  The two experts conducted a joint examination of the plaintiff on 18 September 2009 and prepared a joint report dated 23 September 2009.  They noted the complaint of tenderness at mid-line and left side of the lower lumbar region over L3, L4 and L5 levels and the presence of mild guarding.  However, there was no loss of lumbar lordosis and no paraspinal muscle spasm.  Movement of the back was limited, as was straight leg raising.  The values were 40º for the right leg, and 30º for the left leg.  However, the same test, conducted whilst sitting, produced values of 70º and 60º.  He complained of numbness on his left big toe. 

27.  The two experts were in agreement that there were degenerative changes with marginal osteophytosis in the lower thoracic and lumbar spine, as shown on the x-rays and that the osteophyte was most likely to be pre-existing as it would have taken a long time to form.  They also agreed that the repeated MRI scans excluded structural damage to the spine and any anatomical cause for lower limb neurological complaint.  They agreed that the plaintiff probably had a back contusion or sprain with soft tissue involvement, and that there was no evidence of bony damage or neurological deficit. 

28.  Dr Johnson Lam was of the view that the subject accident had caused considerable soft tissue injury to the back, aggravating the pre-existing back condition, triggering symptoms, and causing persistent pain in the back.  He maintained the opinions he had expressed in his first report. He did, however, agree with Dr K.C. Lam that the neurological complaints of the plaintiff did not have good physical basis, as they had not been reported at an early stage and the repeated scans excluded any pathology which could account for them.  The doctors also agreed that the discrepancy in the straight leg raising test showed that the actual root extension was only slightly limited and there was likely to be overlaying of symptoms. 

29.  Dr K.C. Lam emphasised that there was no loss of lumbar lordosis and no paraspinal muscle spasm, which showed that the back pain, if any, should not be a severe one.  He also maintained the opinions he had expressed in his first report, and that the maximum period of sick leave required was 3 months.

30.  In the joint report, Dr Johnson Lam enlarged his opinion on the working capacity of the plaintiff, stating that the plaintiff would have difficulty to return to the full duties of his pre-accident job that require long hours of standing and walking, and heavy physical demand on his back. However, with more self-exercises to strengthen the back and a gradual return to a work programme, and if he could be allowed to have more frequent breaks during work, and avoid lifting heavy objects, say, over 40 lbs, he might be able to gradually return to his pre-accident job. 

31.  The plaintiff sat very comfortably in the witness box over the course of 2 days without exhibiting any sign of discomfort when he gave evidence before me.  Having heard from and observed the plaintiff when he was giving his testimony, I conclude that the plaintiff has greatly exaggerated the residual pain and disability that he has suffered as a result of this accident.  The plaintiff attended his examination by Dr Johnson Lam on 7 April 2009 carrying a walking stick in his hand. He claimed that he needed to use a walking stick if he had to travel over a long distance.  His evidence that he needs to use a walking stick and his explanation for needing it to prevent him from falling were wholly unconvincing. 

32.  I do find that he has suffered genuine residual pain as a result of the accident, but the extent to which he has exaggerated his own pain and disability makes it difficult for me to assess the true extent and severity of his residual pain and disability.  I prefer the opinion of Dr K.C. Chan, which is consistent with my own findings in this case.  However, I also find that the plaintiff’s residual pain was not temporary, but persisted, and on occasions became severe such as would require him to seek medical attention and treatment by painkillers. 

33.  In considering the proper award to make for damages for PSLA, I have had regard to the following authorities which were referred to me :

(a)     Yip Piu v Chung Kam Fei Catherine,HCPI 1168/1999, 27 November 2000, Cheung J, PSLA: $100,000;

(b)     Shek Kam Ching v Po Kee Construction Engineering Ltd [2002] 3 HKLRD 795, 28 November 2002, Deputy Judge To, PSLA: $150,000;

(c)      Lung Kwong Ying v So Sai Lo [2002] 3 HKLRD 185, 9 August 2002, PSLA: $250,000;

(d)     Chan Chung Keung v Greenroll Ltd (HCPI 275/2005, 20 December 2005, Deputy Judge Carlson, PSLA: $180,000;

(e)      San To Po Yuk v Wing Kwong Painting Co. Ltd [2004] 2 HKLRD 169 at 178E-179I, PSLA: $350,000;

(f)      Shah Nisar v Wai Kit Engineering Co. Ltd HCPI 1092/2003, [2005] HKEC 529, Sakhrani J, PSLA: $300,000, see paras. 50-81 of the judgment);

(g)     Chan Chi Shing v Chan Shu Kuen [2009] 2 HKLRD 259, 264-265, PSLA: $350,000;

(h)     Gurung Bhim Bahadur v Cheung Ying Construction Engineering Ltd, HCPI 746/2005, [2010] HKEC 68, Master de Souza, PSLA: agreed at $300,000: see paras. 8-11, 14-26 of the judgment); and

(i)      Farman Khan v Lau Kai Hong, HCPI 850/2008, [2010] 2 HKLRD E5, [2010] HKEC 196, Master Jack Wong, PSLA: $350,000, see paras. 5-9 of the judgment. 

I was also referred to my judgment in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 which was more serious than the present case. 

34.  The plaintiff in the present case suffered from an asymptomatic degenerative spine.  The injury he suffered at the accident at work has triggered symptoms of lower back pain.  The residual symptoms are mild and, occasionally, moderate and can be alleviated by taking painkillers.  I note the observations of Deputy Judge Seagroatt in Thapa Surendra v E W Cox Hong Kong Ltd (HCPI 451 of 2009, 11 July 2009) that the human body is affected both physically and psychologically by a permanently weakened and painful back, which affects moods and self-esteem, and curtails leisure activities.  I assess the award of PSLA in the present case in the sum of $200,000. 

35.  I turn to consider the claim for loss of earnings in this case. I find that, after he had recovered from the initial effects of the injury, the plaintiff could have returned to work as a printing worker, taking care to avoid overloading the waste paper basket and to avoid lifting too large and too heavy a pile of papers.  This accords with the opinion of Dr Johnson Lam that, with more self-exercises to strengthen the back and a gradual return to a work programme, he could lift weights of under 40 lbs.  I would have concluded that one year’s sick leave was sufficient for him to have recovered well enough to return to his former occupation.  However, Ms Phillis Loh for the defendant has been more generous and has conceded that I ought to award pre-trial loss of earnings in the sum of $175,088, inclusive of 5% loss of MPF benefits, calculated on the following basis :

16.4.2007 – 4.3.2008

Full loss of earnings of $8,500 x 10.6 months

$90,100

5.3.2008 – 31.12.2009

Partial loss of earnings

($8,500 – $5,000 which he could earn from performing light work) x 21.9 months

$76,650

36.  Ms Loh makes this concession on the basis that the plaintiff was considered capable of resuming some light work by the time of the functional capacity evaluation on 4 March 2008 at which time he ought to have been able to earn at least $5,000 per month on average in performing light work.  I readily accept this concession and make this award for pre-trial loss of earnings. Indeed, Mr Albert Yau, who appeared for the plaintiff, pointed out that the plaintiff was in fact earning $4,900 per month as a cleaning worker when he started work in August 2009. 

37.  It follows from my findings that I make no award for future loss of earnings on a multiplier/multiplicand basis.  I find that the residual pain and discomfort of his lower back would not have prevented the plaintiff from returning to his pre-accident employment.  He would need to take care to lift and move smaller and less heavy piles of paper, and to seek assistance with lifting the wastepaper basket, which he had to ensure was not overloaded, and when he had to replace the cutting knife.  These limitations would not have prevented him from returning to his former occupation as a paper cutter. 

38.  However, he clearly suffers from a handicap in the labour market, given the likely periodical recurrence of back pain that may require him to take sick leave and seek medical intervention, and given his reduced working efficiency. His limitations would handicap him in securing suitable employment as well as make him vulnerable to losing any such employment that he managed to secure. Although he is now 50 years old, he can look forward to another 15 years of active working life in the printing industry.  I award $150,000 as damages for loss of earning capacity in this case. 

39.  As far as the other items of claim are concerned, I award $8,500 for medical expenses incurred and $5,000 for the cost of tonic food.  I am not satisfied on the evidence that I should make any award for future medical expenses or future travelling expenses, and I do not do so. 

40.  The damages I have awarded have to be reduced by 50% on account of contributory negligence.  The employees’ compensation that has been awarded and paid must then be deducted from my award.  

41.  I award interest on damages for PSLA at 2% per annum from the date of service of the writ until the date of judgment, and interest on pre-trial loss and expenses from the date of the accident up to the date of payment of employees’ compensation, at 4% per annum, and, if there is any remaining balance after deducting the amount of employees’ compensation, I award interest on that remaining balance from the date of payment of employees’ compensation up to the date of judgment, also at 4% per annum. 

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