1983 No. 14011

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is a personal injury case in which the Plaintiff lost his left arm while operating a winch on a sand transportation barge ("the barge"). That was on 26th December 1980. In October 1982 he applied for "workmen's compensation" under the Employees' Compensation Ordinance. The application was heard by Judge Blackwell in the District Court in 1983. He awarded the Plaintiff a sum of $204,254.66. I shall refer to those proceedings as the 1983 case.

2. Having secured the award under the Employees' Compensation Ordinance, the Plaintiff commenced these proceedings in that same year, 1983. He makes a common law claim against the lst Defendant and the 2nd Defendant for damages in negligence and breach of statutory duty.

3. It is common ground that the 1st Defendant owned the barge and that the 2nd Defendant managed it. In default of the 2nd Defendant filing a defence in April 1984 judgment was entered against him, leaving the quantum of the damages to be assessed later. In his pleadings the 1st Defendant denies the claims. The 1st Defendant has also filed a Third Party Notice claiming to be indemnified in respect of any damages awarded to the Plaintiff against him. By agreement between the 1st and 2nd Defendants that claim has been deferred.

4. In substance the Plaintiff claims that while operating a derrick winch in the course of his duties, his hand was pulled into the winch drum by the wire cable resulting in its loss and that this accident was caused by the negligence and breach of statutory duty of the two Defendants.

5. The 1st Defendant in his defence claims (1) that he was not the employer of the Plaintiff; (2) that the Plaintiff was not required to operate the winch in the course of his employment; (3) that the alleged accident did not occur on the barge and that the Plaintiff was on a frolic of his own; (4) that there was no negligence or breach of statutory duty; and (5) that the accident was caused solely by the negligence of the Plaintiff or alternatively was substantially contributed to by his negligence. At the hearing before me the 1st Defendant did not pursue the allegation that the accident did not occur on the barge.

6. It is convenient first of all to consider the question of whether the Plaintiff was employed by the 1st Defendant. Mr. Mills-Owens for the Plaintiff submits that this issue was decided by the District Court in the 1983 case, and pleads res judicata. While not abandoning the 1st Defendant's first ground, Mr. Herman Poon for the 1st Defendant concedes that he cannot resist that submission upon his understanding of the law on issue estoppel as summarised in paragraph1530 at p1030 of Volumn 16 of the 4th Edition of Halsbury's Laws. The relevant part of that paragraph, which was also adopted by Mr. Mills-Owens, is as follows:

"An estoppel which has come to be known as 'issue estoppel' may arise where a plea of res judicata could not be established because the causes of action are not the same.

A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact and law. The conditions for the application of the doctrine have been stated as being that (1) the same question was decided in both proceedings; (2) the judicial decision said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies,"

It is clear from the record of the 1983 case that whether the 1st Defendant was the employer of the Plaintiff was directly in issue, indeed was a necessary issue in that case, that the parties to the present action are the same, and that Judge Blackwell's decision in that case, i.e. that a master and servant, employer and employee relationship existed between the 1st Defendant and the Plaintiff, was embodied in a judicial decision that was final; indeed it was appealed to the Court of Appeal which affirmed the judgment dismissing the appeal. In my judgment therefore it is not open to the 1st Defendant to contend that he was not the employer of the Plaintiff and upon the basis of the decision in the 1983 case I accept that the Plaintiff was the 1st Defendant's employee. I proceed then to the next issue which is whether the Plaintiff was operating the winch in the course of his duties.

7. The Plaintiff testified that he had worked on barges for a long time, between 5 to 8 years, inclusive of 2 to 3 years on winches, before he came to work on the barge in this case early in 1980. He was engaged, inter alia, to work the derrick winches and this was reflected in a salary that was higher than that of a deckhand, one Ah Hon, who also worked on the barge. He knowledgeably described the working procedure and the nature of the winch derrick and grab. He claimed that he and the 2nd Defendant, who was in charge of the barge, spelled each other in operating the winches.

8. The 2nd Defendant denied that the Plaintiff was engaged or that it was any part of his duties to work the derrick winches, except when he, the 2nd Defendant, stood at the Plaintiff's side. His evidence was that the Plaintiff was merely a deckhand and did not know to operate the derrick winch very well. He himself accordingly had to operate the winches for unloading sand, stopping every so often for some tea and a rest when he got tired. When he was not on board the unloading simply stopped.

9. That it was not part of the Plaintiff's duties, indeed that he was not allowed to operate the winches without the 2nd Defendant at his side, was never pleaded or mentioned at the 1983 case. In that regard it seems to me that the 1st and 2nd Defendants may have regarded themselves not as the Plaintiff's adversaries but as assisting the Plaintiff to get from the 1st Defendant's insurers a workmen's compensation award that was as large as possible. The barge is still in service, now owned by the 1st and 2nd Defendants as partners, the 2nd Defendant having since the accident acquired a quarter share. It is now manned by a winch operator in adition to the 2nd Defendant who remains in charge, and an additional deckhand, the reason apparently being that the barge now carries three kinds of cargo and not just one of sand as it did at the time of the accident.

10. Finally it is clear that the Plaintiff could not have operated the derrick winch secretly and that its operation by him at the time of the accident was bound to be discovered, if not immediately noticed, as was more probable.

11. I was impressed by the Plaintiff. He did not attempt to inflate his case or to gild his evidence. I generally accept his evidence which I prefer to that of the 2nd Defendant both as to content and demeanour; in regard to the latter I observed both carefully. I reject the 2nd Defendant's version and find as a fact that the Plaintiff did operate the derrick winch in the course of his employment.

12. Upon that issue Mr. Mills-Owens relied not only upon the evidence I have outlined, but also pleaded res judicata, in terms of the law summarised in paragraph 1530 of Volumn 16 Halsbury's Laws 4th Edition which I have already referred to. He relied also upon paragraph 197 at p.160 of the 2nd Edition of Spencer Bower and Turner on Estoppel by Representation, in which the position is stated in the following terms:

"Whenever it is shown that the party against whom a judicial decision is ultimately pronounced omitted to raise by pleading, argument, evidence, or otherwise some question, or issue, or point which he could have raised in his favour by way of defence or support to his case without detriment to his position or interests in the pending, or in future, proceedings, and which therefore, it was his duty (in a sense) to have then raised, the adverse general decision, though it contains no express declaration to that effect, is deemed to carry with it a particular adverse decision on the question, issue, or point so omitted to be raised, just as much as if it had been expressly raised by the party, and expressly determined against him. And this is so whether the question or issue is simply passed over through inadvertence, or is made the subject of express or implied assumption or admission."

13. I accept the foregoing as an accurate statement of the law in so far as the position in the present case is concerned, ample authority for which exists in the passages quoted in support from the cases of Henderson v. Henderson (1843), 3 HARE 100 and Hoystead v. Taxation Commissioner (1926) AC 155. It seems to me that if the operation of the winch was not part of the Plaintiff's duties and indeed was in the nature of a frolic of his own, that would have been a good defence in the 1983 case. The 1st Defendant should therefore have raised it and is now estopped from doing so. Accordingly, upon this basis also, in my view the 1st Defendant cannot contend that the operation of the winch, in the course of which the accident occurred, was outside the course of the Plaintiff's employment and in the nature of a frolic of his own.

14. I proceed then to the next issue, i.e. was the 1st Defendant negligent or in breach of statutory duty. In its final form in which it was pressed by Mr. Mills-Owens, the Plaintiff's complaint is that the system of operation of the derrick winch in unloading was unsafe. It is common ground that the machinery consisted of essentially two winches powered by an engine. One winch hoisted a grab and the other opened and closed the grab. The drum of each consisted of the working section (or main drum) and the reserve section. A wire cable was affixed to the reserve section and coiled on that section for a length of 30 feet or so. It then passed through a slot in a stopper plate separating the reserve from the working section and was coiled in a single layer on the latter. From that it led in the case of the grab opening and closing cable, almost vertically to near the top of a tripod above the winches, and thence across to the end of a derrick arm or beam, the other end of which pivoted from its base near the winches. From the end of the beam the cable dropped to the grab. The operator sat or leaned against a metal stool fronting an array of controls, immediately behind which were the winches. The controls consisted of seven near vertical metal handles at chest height; two of these operated the hoisting and opening and closing of the grab. Below those handles at waist height was another set of controls i.e. dog stoppers which could lock the winch drums. Finally at the operator's feet were six large foot brake pedals to stop the winch drums. To use the grab normally four foot pedals would have to be operated with two feet (two by heels and two by toes) and four clutch handles with two hands. In addition a dog stopper might also have to be engaged. Clearly it was a complicated operation notwithstanding that it seems to be skill-fully coped with in practice. As the operator would be balancing on the pedals and not standing on any firm platform or deck, operation of the winches was also dangerous in the sense that the operator could loose his balance and fall on to the winches.

15. As a result of his investigation of the accident, Mr. Lee Kwok Hung the senior Shipping Safety Officer of the Marine Department made a recommendation that shield guards should be placed between the winch controls and the winch drums. That has not been adopted as a general recommendation by the Marine Department. Although Mr. Lee thinks there is room enough for the installation of such shields, the photographs of the winches on the barge and of their controls suggest that there is not a great deal of space for this. No evidence emerged of any operator having ever fallen off the pedals and injured himself on the winches. The Marine Department from time to time puts out notices to guide seamen and those concerned with vessels and to alert them to dangers. Five notices dating from 1973 to 1982 record several fatal accidents involving winches. They stress the necessity for competent operators to be at the controls while winches are in operation and that only experienced persons should handle the ropes being wound onto rotating drums. That the ropes should be handled by persons other than the operators of the winches is implicit.

16. There seems to me clearly to have been a risk that an operator of the controls of the winches on a barge could lose his balance and fall. I suppose it was possible that he might fall onto the winch drums, but there is no evidence of this ever having happened. Nor is that what is alleged in this case. I am not satisfied therefore that mere operation of the controls exposed the operator to danger.

17. But what the Plaintiff claims is that the cable came out of the slot and that while he was trying to re-insert it onto the working section of the drum through the slot in the stopper plate, his hand got caught and he was dragged into the winch. It was not disputed that the cable must have come out of the slot and that it had to be put back onto the main drum through the slot to operate the grab. On the evidence, the former is clearly what probably happened, and the latter is obvious, and I so find. The Plaintiff's case and his evidence was that when the cable came out and when he was trying to re-insert it his hand got caught and he was pulled into the machine. To re-insert the cable he had to push or press it with some force and at the same time rotate the winch drum to coil it onto the latter.

18. For the 1st Defendant considerable efforts were made to show that the, Plaintiff was negligent in letting the cable jump out of the slot and that he must have caused this by dropping the grab from too great a height, causing the resultant momentum of the winch drum to shed off all the cable coiled on the main drum and then to jump out of the slot. The 2nd Defendant testified that he had never allowed the cable to jump out in that fashion, which I am inclined to doubt. I accept the evidence of Mr. Lee and of the Plaintiff that the grab had to be dropped for some distance to bite into the sand so that a full load of sand could be grabbed. The 2nd Defendant himself said that the grab had to be dropped for the last couple of feet. I do not accept that the Plaintiff would necessarily have been negligent if he perchance dropped the grab from a greater height than might have been ideal. Even if the Plaintiff were negligent in that respect I do not see that it would have had a material causative connection with the accident which seems to have resulted from the way in which the cable was re-inserted through the slot. I will accordingly waste no more time upon the cause of the cable jumping out of the slot.

19. On the evidence, which was overwhelming on the point. I have no hesitation in finding that the manual insertion of the cable into the slot contemporaneously with the operation of the winch controls to rotate the drum, was a dangerous act. The safe procedure would have been for one person to operate the controls and another to insert the cable through the slot i.e. for the operator to have called for assistance. The Plaintiff did not seek to deny that, although he suggested he did not appreciate its necessity. He maintained that if someone in addition to the operator were present that person would do it. Thus he claimed he did it for the 2nd Defendant and the 2nd Defendant likewise assisted him when either was present. But when no one was present to assist e.g. when everyone was at the rear of the vessel, one had to do it for oneself. Thus he had himself to do so on the barge and indeed on other barges before that. And so had the 2nd Defendant.

20. The 2nd Defendant denied that and said that it was a practice always for a second person to assist. I do not believe the 2nd Defendant on this point and reject his evidence. For reasons already recorded I believe the Plaintiff and accept his version on this point also. I find as a fact that both the Plaintiff and the 2nd Defendant must have in fact single-handedly re-inserted the cable whenever no one else was immediately available to assist.

21. In alleging negligence and breach of statutory duty on the part of the 1st Defendant, the Plaintiff by his pleadings also sought to rely upon the failure to provide leather gloves and in permitting cotton gloves to be used. I am satisfied on the evidence that although the Plaintiff did have access to a pair of leather gloves, the use of cotton gloves in the operation of the winches was tolerated and resorted to often if not generally. But on the evidence I also find that the Plaintiff's use of cotton gloves, which was common ground, probably did not contribute significantly to the accident and not significantly more than leather gloves would have anyway. The evidence showed that there were probably no wire snags on the cable which would have been more likely to hook into cotton gloves, rather than leather gloves, and so pull the Plaintiff's hand into the winch.

22. In my finding the accident was caused by the Plaintiff trying to re-insert the cable while operating the winch controls; the operation was highly dangerous; nonetheless it was permitted by the system of work on the barge; and therefore the system of work was not safe. In my judgment the 1st Defendant was negligent and failed in his duty of care to his employee, the Plaintiff, in not providing a safe system of work.

23. Accordingly, it is not necessary to consider the alternative ground of breach of statutory duty in any detail. Suffice it to say that the Plaintiff alleges first that the 1st Defendant fell short of the requirements of section 43(1) of the Shipping and Port Control Ordinance (Cap. 313), of Regulation 22(1) of the Shipping and Port Control (Cargo Handling) Regulations and of Regulation 18(1) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (Cap. 59), in relation to the quality and condition of the wire cable. That allegation has not been established. Second that the 1st Defendant was in breach of the requirements of section 44(1) of Cap. 313 in that the unloading procedures involved the use of the winch in a manner that failed to provide adequate protection against the risk of accident of bodily injury. It follows from the finding I have already made that this allegation has been established and I so find. Third it was alleged that the 1st Defendant failed to discharge the common duty of care owed to the Plaintiff under the Occupiers Liability Ordinance (Cap. 314); this allegation was not pursued.

24. That brings me to the question of whether there was any contributory negligence on the part of the Plaintiff. The 1st Defendant alleges that the Plaintiff was negligent in failing to use leather gloves and in trying to re-insert the cable on his own without assistance. The Plaintiff admitted that the use of leather gloves would have been marginally safer and I think on the evidence that must be so but in the absence of evidence of any snags, as I have already recorded, I do not accept that the failure to use leather gloves was a material factor in causing the accident. In the absence of snags it could be argued that the claimed superior non-slip qualities of leather gloves would more effectively have pulled the Plaintiff's hand into the winch.

25. It is the other element, the dangerous action of the Plaintiff that is more in point. That action seems to me to have been so obviously dangerous that the Plaintiff must have been aware of the relevant risk. However, in my finding, it was a practice that on the part of the Plaintiff was at the very least tolerated by the 2nd Defendant who himself indulged in it. It is the effect of this that I propose now to examine. In General Cleaning Contractors Ltd. v. Christmas (1953) A.C. 180, a window cleaner who fell and was injured had failed to use a safety belt because there were no hooks attached to the building. It was held that the employer was negligent in failing to devise a reasonably safe system of work. Lord Oaksey said (at pp. 189 and 190):

"In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition."

And Lord Reid added (at p.194):

"Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing. No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do."

26. In Barcock v. Brighton Corporation (1949) 1 K.B. 339 the Plaintiff was injured in an electrical explosion while carrying out tests in breach of his employer's regulations. It was held that, and I quote from the headnote:

"The defendants had not provided a safe system of working merely by handing the plaintiff a copy of the regulations with instructions to comply with them, and even if those acts had constituted the provision of a safe system, by a long usage that paper system had been entirely disregarded by the plaintiff's superiors and he was not guilty of contributory negligence because he did not break away from the method of doing the work in the way in which he had always seen it done."

At page 343 Hilbery J. said:

"It is no use for a master to say in court 'I discharged my common law duty because I put down on paper a safe system and put it into the hands 'of the man' if for years they showed him by the action of those who were his superiors that the work was not done in that way, need not be done in that way, and could be done in another way which involved danger. I should have thought that instead of providing a safe system of work, what the masters here had, in fact, provided throughout the years was an unsafe system which it was expected should be employed, notwithstanding that it involved risk ......."

                       27. In the present case, in my finding, far from being warned not to re-insert the cable without assistance, the practice even of the 2nd Defendant was to do precisely that, when no assistance was to hand. In my judgment therefore the plaintiff was not guilty of contributory negligence having merely adopted the practice of his superior.

28. The Plaintiff is accordingly entitled to damages and I turn to their assessment, beginning with the general damages for pain, suffering and loss of amenities. It is not disputed that the Plaintiff's left arm together with part of his shoulder including the clavicle and most of the scapula was avulsed or had to be removed as a result of the accident. He also sustained an injury to his left ear. I accept his evidence and find that this injury has resulted in very substantial loss of hearing in that ear. I also accept the medical evidence that he initially suffered severe depression, but I find that his condition in this respect has since continued to improve.

29. Mr. Mills-Owens for the Plaintiff submits that the disability of the Plaintiff should be placed at the top of the lowest category (serious injury) or the bottom of the next of the four categories of disability laid down in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657. Mr. Herman Poon for the 1st Defendant says it clearly should be placed at the top of the lowest category. The Plaintiff's mobility is not significantly affected and I accordingly place his disability at the top of the lowest category i.e. $80,000 at the original May 1980 rates. That amount must be increased to take account of inflation. Mr. Poon on the basis of the Consumer Price Index in the Hong Kong Law Journal for 1984, 1985 and 1986 contends for an increase of 70%; Mr. Mills-Owens on the basis of the Hong Kong Monthly Digest of Statistics for August 1986 thinks 75% would be more appropriate. I think 75% would not be over-generous, but the issue is really academic because even an increase of 75% produces a sum of $140,000. very substantially lower than the $204,254 awarded in the 1983 case. It is agreed that the latter sum must be set off.

30. I proceed then to the claim for loss of earnings. Beginning first of all with the pre-trial loss of earnings the Plaintiff claims these at the average rate of $2,900 per month from the time of the accident to the time of trial. The rate of the Plaintiff's earnings at the time of trial is disputed and it is convenient to begin with Mr. Poon's submission on the basis of issue estoppel, the law on which has already been explored on the Plaintiff's behalf in another context, that the Plaintiff is estopped from denying the amount of earnings found by Judge Blackwell in his judgment in the 1983 case in these terms:

"From the evidence, I am satisfied that the monthly earnings of the applicant are $1,800 per month, together with a further sum of $100 on average by way of bonus and the further sum of $1,800 per annum."

31. That works out at $2,050 per month. Mr. Mills-Owens, however, submits that in the 1983 proceedings the Judge was concerned only with whether or not the Plaintiff's earnings equalled or exceeded $2,000 per month, which would produce the maximum award under the provisions of the Employee's Compensation Ordinance, Cap. 282. It is clear from the transcript of that case that on behalf of the Plaintiff it was submitted that the Court needed only to find that the Plaintiff was earning not less than $2,000 to achieve the maximum award. Nevertheless I am satisfied that the issue presented to the Court in the 1983 case was not whether the Plaintiff's earnings were not less than $2,000 but was what the amount of those earnings were. It is conceivable that the Judge could have assessed the compensation applied for simply upon a finding that the Plaintiff's earnings were not less than $2,000. But the prescribed form of application under the Employees' Compensation (Rules of Court) Rules required the average monthly earnings to be stated and this the Plaintiff did at $2,500. From the transcript and judgment, it is clear that that was the issue to which the evidence was directed, upon which the Judge received the evidence, and upon which he made a specific finding; moreover a finding which in the way the case resolved itself, was necessary for the Court to make. The Plaintiff in fact claimed in evidence in that case, as he does now, that his average monthly salary was $2,800 to $3,000, and it is not as if that claim was not considered. In the result. I feel bound to hold that the Plaintiff is estopped from questioning the finding and in my judgment, I am bound to accept the Plaintiff's earnings at the time as $2,050 per month. I ought to mention that the Plaintiff sought to rely upon some form signed by the 1st and 2nd Defendants recording the Plaintiff's earning as $3,000 per month. However the 2nd Defendant explained that at that stage, he and the 1st Defendant were concerned to obtain as much as possible for the Plaintiff from the 1st Defendant's insurers and so inflated the figures. I will say only that I would not think it safe to rely upon that document even if pleas of res judicata and issue estoppel were inapplicable.

32. But the question of what the amount of Plaintiff's earrings would have been at the time of trial is not quite so simply resolved. If the Plaintiff's own figures of $2,800 to $3,000 at the time of the accident are increased by 75% (the Consumer Price Index percentage increase, not that this is necessarily a safe indicator of the increase in earnings) $4,900 - $5,250 would be the result. The 2nd Defendant says the current earnings of winch operators are about $3,100; inclusive of the 13th month's pay that would be $3,358.

33. The only independent and disinterested evidence on current winch operators' earnings came from Mr. Chan Kwan, the Chairman of the Cargo Boat and Transport Union and Vice-Chairman of the Harbour Transport Union, who was called by the Plaintiff. He placed current winch operators' earnings in the range of $4,000 to $4,400 per month, but extended this downwards to $3,000 in the case of individually owned barges to over $4,400 in the case of large fleets. The 1st Defendant is said to own about six barges. On all the evidence, I think that the Plaintiff's current earnings as a winch operator would have been about $4,000 per month, and I so find.

34. It is conceded by Mr. Poon that the Plaintiff is entitled to his full wages during the period of sick leave, that is from the time of accident up to the end of March 1982. But Mr. Poon contends that it was incumbent upon the Plaintiff to mitigate his loss and obtain other employment and that he failed to do so. In truth the Plaintiff does not seem to have done very much to obtain employment. He did register himself with the Labour Department's Selective Placement Service in 1981, but did not renew that registration in 1982 though he re-registered himself in 1983 and thereafter remained on its books. The representative of the Selective Placement Service, who was called by the Plaintiff, thought that the Plaintiff should be able to work and might find employment as a watchman, lift operator or mould polisher. I am satisfied that the Plaintiff was not able to find employment in the first two capacities. But he was in fact offered placement as a mould operator in February 1985 and again in October 1986. He refused both offers as he thought the places of work were much too far to travel to. Besides, his shoulder was sensitive and travel in public transport was accordingly painful. On the medical evidence there is no reason to doubt that evidence and I accept it , though of course, this of itself would not altogether justify a refusal to travel. I am also satisfied that initially it would have been difficult for him to come to terms with travelling on public transport. However, the distances and time involved seem not unreasonable and would I think have progressively become less difficult as he became used to them. Nevertheless in this context, the medical evidence is that he was also suffering from depression, which was by no means an abnormal situation, caused by the physical and psychological effects of the massive injury he had sustained and from which he has been progressively recovering. But I think that by the time of the trial he had progressed to the stage he should have secured employment or been able to show that he had made more reasonable efforts to do so. To my non-medical perception, he no longer seemed withdrawn. He readily answered questions and showed some spirit in refuting the 2nd Defendant's suggestions in cross-examination. And he himself suggested he ought and would like to get work because it would be good for him. As I have said, it is conceded that he could not be expected to work during his period of sick leave which ended in March 1982. But as to the remainder of the pro-trial period. I think that some deduction ought to be made from his notional earnings to reflect the amount he would or should have earned. I think in all the circumstances 50% of the amount he might have earned in that period should be discounted to reflect his progressive return to the point at which he should have been earning.

35. From the evidence of the representative of the Selective Placement Service, the Plaintiff was only approached on placement as  a mould polisher in February 1985 at $40 per day (i.e. $1,040 per month) and in October 1986 at $55 per day (i.e. $1,430 per month). I adopt the figure of $1,430 per month at the time of trial.

36. Obviously in April 1982 the level would have been lower. In the absence of direct evidence on the point, I think the most reasonable assumption I can make using such evidence and indications as I have been afforded in this case is that he would have earned $850 per month in April 1982. But allowance must be made for the additional travelling and lunching out costs that he would have incurred. Again using such evidence as is available. I think a fair deduction would be $100 per month in 1982 and $170 per month at the time of trial. The Plaintiff's earnings for the period from April 1982 - November 1986 as a mould polisher upon the foregoing basis would be -

($850 + $1,430 ÷ 2) - ($100 + $170 ÷ 2) x 56 months x 50% = $28,140

Adopting the now established method of calculating loss of earnings, the pre-trial loss of earnings are-

$2,050 + $4,000 ÷ 2 x 72 months -$28,140 = $189,660

From this , it is agreed, $12,400 which the Plaintiff received from the 1st Defendant must be deducted, leaving a balance of $177,260.

37. Proceeding then to the post-trial earnings, it was contended on the Defendants' behalf that the work of barge winch operators is unusually arduous and accordingly results in very early retirement. The 2nd Defendant claimed that he only saw young people around 20 to 30 years working on barges and seldom old people; old people according to him were those around 40 years old! I do not believe that evidence of the 2nd Defendant. Bearing in mind the evidence of Mr. Chan Kwan the President and Vice-Chairman of the Unions mentioned, that there is a shortage of winch operators. I think it much more likely that persons in this occupation notwithstanding its demands and long and irregular hours, would continue to work to at least the age of 50 or 55 in the circumstances of Hong Kong. The Plaintiff in my finding is now 37 years of age.

38. To proceed, my attention has not been called to any directly relevant multiplier used by a court in Hong Kong or elsewhere, but taking into consideration such examples as I have been referred to, the fact that winch operators should be able to find other employment if they have to retire so early, I think a multiplier of 11 would not be inappropriate to the vicissitudes of this particular situation. On that basis the Plaintiff's post-trial earnings would be -

$4,000 - ($1,430 - $170) x 132 months = $361,680

It is convenient to take as the next item of special damages the claim for $25 for clothing damage. Mr. Poon did not seek to contest this item and I allow it. The remaining three items of hospital charges of $100, tonic food of $3,000 and travelling expenses of $500 were, as I understood it, contested by Mr. Poon. Although he was not concerned about the $100, there was evidence that there had been payments by the 1st Defendant for hospital charges. This particular it em of $100 was not established to my satisfaction, I therefore disallow it.

39. I proceed to the next item which is $3,000 for tonic food. No receipts or other documents were produced in support of this. Nor was there any clear evidence of the period for which tonic food was taken. Accordingly on the authority of Yu Ki v. Chun Kit-lum (1981) HKLR 419, I propose to allow only a token sum. Mr. Poon for the Plaintiff did not object to an amount of $20 a day but opposed this being allowed beyond the period the Plaintiff was in hospital. That period was 21 days and I accordingly award $420 under this item.

40. Finally I come to the last item which is travelling expenses of $500. Clearly the Plaintiff must have incurred travelling expenses in attending for treatment, and in addition his family must have incurred travelling expenses in visiting him in hospital. The evidence shows that he has already received some payment towards travelling expenses from the 1st Defendant; he has neither accounted for that or shown to my satisfaction that it did not cover the total of the expenditure on travelling. In the circumstances I disallow this item also.

41. To sum up I would award the Plaintiff the following:

42. As to interest the Plaintiff in the ordinary way would have been entitled to interest on general damages of $140,000 against which the employees compensation award has been set off. But since he has already had the bulk if not all of that money for some time now, subject to submissions, I would not propose to award any interest upon the general damages (inclusive of the post-trial loss of earnings). Proceeding to the special damages, Mr. Poon submitted that these should attract interest that at a rate of 3.8% to 4%. Mr. Mills-Owens disputed that and said considerably more should be allowed. However, neither counsel provided me with any material upon which to assess an appropriate rate. Nevertheless, having regard to falling interest rates and to the rates awarded in other personal injury cases recent and not so recent I think it would be fair to award interest at the rate of 4½ on the special damages from the date of the accident to the date of judgment.

43. Proceeding to costs, clearly the Plaintiff should have these. There is the minor question of the costs thrown away by the adjournment granted upon the Plaintiff's application. However, it seems to me that that adjournment did not occasion any additional costs. Unless counsel wish to make any submissions, I therefore propose to simply order that costs be the Plaintiff's. I will also hear submissions if any upon the mathematical accuracy of my calculations.

SCHEDULE

* in respect of a bill for US$164,207.64