CHUNG CHI WING v. SECRETARY FOR JUSTICE

1997 No.PI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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J U D G M E N T

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1. This is a claim by the Plaintiff for damages for personal injuries sustained by him while working as a fireman employed by the Fire Services Department of the Hong Kong Government ("the FSD") which he alleges to be caused by the negligence of the FSD, its servants or agents.

Background

2. The Plaintiff, born in 1961, is now 37 years old. He joined the FSD in 1992 as a fireman. In 1993 he was posted to Wong Tai Sin Fire Station. On 26th September 1993, due to unusually heavy rains, a landslip occurred at Cheung Shu Tan, Tai Po, New Territories. The FSD was summoned and the Plaintiff was one of a number of firemen attending the scene of this landslip. At the time it was believed (wrongly as it turned out) that a Filipina maid may have been buried under the mud and rocks of the landslip. The Plaintiff and the other fireman arrived at Cheung Shu Tan at about 7.40 p.m. that evening.

3. Cheung Shu Tan is a village which can only be reached by going down a narrow and steep slip road off that part of the old Tai Po Road near to the Chinese University. About 75 metres down this narrow and steep road, on the left side as one goes down it, there is a small stone bridge which runs over a small stream. Immediately on the other side of the stone bridge was where this landslip occurred.

4. Upon arrival at the scene of this landslip, the firemen were given orders to try to remove the debris such as rocks, tree trunks and branches by using shovels and electric chain saws. At a later time, the order was given to set up fire hoses with the intention of hosing down the mud and sand to clear the debris from the landslip area. It was at about 11.20 p.m. when the Plaintiff was acting as the forward branchman (i.e. one of two persons at the very front of and controlling the nozzle of a fire hose) jetting down the mud and sand that suddenly the branch, i.e. the heavy metal nozzle, swung sideways to its right and the force of that swinging branch caused the Plaintiff to sustain a very painful sprain to his right shoulder which was later discovered to be an impinged tendon.

5. A short while after sustaining the injury at the scene, which caused the Plaintiff severe pain, the officer in charge and who was present at the scene was informed of the matter and the Plaintiff was sent to hospital for medical treatment. He was initially given some drugs and discharged from hospital almost immediately. However the pain persisted and he went back to the orthopaedic clinic of the Prince of Wales Hospital where on 3rd January he underwent a shoulder arthroscopy which revealed an impinged tendon. Later he underwent a decompression surgery and in June 1994, manipulation of the shoulder joint under general anaesthesia was also carried out because of severe joint stiffness. Thereafter the Plaintiff attended a prolonged period of physiotherapy treatment of some 85 sessions.

6. He was granted medical sick leave since the day he sustained the injury and attended 6 medical boards convened at the Prince of Wales Hospital between 23rd February 1994 and 11th September 1996 and was assessed to have a 25% permanent permanent disability. The board also considered that he was unfit to resume his duties and recommended that he be terminated from his present post.

7. His sick leave ended on 31st October 1996. On 23rd October 1996 he was informed by letter that he would be invalidated from the FSD with effect from 4th April 1997 taking into account 154 days vacation leave which he had accumulated. Prior to his invalidation, the Plaintiff had been paid the sum of $155,000.00 by way of workman's compensation in about April 1996 and his full monthly salaries had been paid to him throughout his sick leave period right up to 4th April 1997.

8. Shortly after he was informed that he was to be invalidated from the FSD, the Plaintiff wrote to the Commissioner of Labour on 21st January 1997. The matter was referred to the Director of Legal Aid and a Legal Aid Certificate was granted to the Plaintiff on 17th March 1997. The Writ in this case was issued on 4th April 1997.

The Defence of Limitations

9. Before dealing with the merits of the case, I should deal with the defence raised in the pleadings that the Plaintiff's claim is time-barred under the Limitations Ordinance. This is dealt with as part of the trial in this case because at the Pre-trial Review in this matter, Seagroatt J. refused an application from the defence to hear this as a preliminary issue before the trial. Somewhat surprisingly, despite such refusal by Seagroatt J., the Defendant nevertheless saw fit to run this defence at the trial.

10. This case being an action for damages for negligence in respect of personal injuries to the Plaintiff, sub-section (4) of section 27 of the Limitation Ordinance, Cap. 347, provides that the limitation period is 3 years from the date on which the action accrued or the date (if later) of the plaintiff's knowledge. Sub-section (6) defines the plaintiff's knowledge as being references to the date on which he first had knowledge of (inter alia) that the injury in question was significant. Sub-section (7) further provides that an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

11. In this respect I accept the Plaintiff's evidence that before the arthroscopy performed on him in January 1994, he had been under the belief that the injury to his shoulder was not serious, nothing more than a sprain, albeit that he could not raise his arm and the shoulder felt painful. I find that it was only after the arthroscopy when he was informed by the doctors attending him that there was an impinged tendon that the Plaintiff would have reasonably considered it sufficiently serious to justify instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment. In that sense therefore the Plaintiff knew it to be a significant injury as defined under sub-section (7) of section 27 of the Limitation Ordinance.

12. Since there is no question that the Plaintiff did not know from the outset that the injury was attributable to an act or omission which amounted to negligence or breach of duty as well as the identity of the defendant, the 3 years limitation period under section 27 would therefore have been reached some time in January 1997. The Writ in this action was not issued until 4th April 1997 and was therefore outside the limitation period.

13. I must therefore consider whether in this case I should exercise my power to override the time limit under section 30 thereof. The overriding consideration as provided for by sub-section (1) is whether it would be equitable to allow an action to proceed having regard to the degree to which section 27 prejudice the Plaintiff on the one hand and the degree to which the exercise of my power under this section would prejudice the Defendant on the other hand. In so deciding I must have regard to all the circumstances of the case, specifically to the matters set out in sub-section (3) of section 30.

14. In this respect the first matter to consider is the length of the delay. As indicated above, the Writ of Summons was issued on 4th April 1997 when the limitation period of 3 years in this case would have run out some time in January of that year. It follows therefore that there was a delay of some three months after the 3 year period of limitation had run out.

15. Secondly, what was the reason for this delay? It seems quite clear from the evidence of the Plaintiff that he would probably not have brought these proceedings had he not been invalidated out of the FSD. Prior to being told that he would be invalidated, the Plaintiff had taken no steps to bring any proceedings but after he was informed by letter of 23rd October 1996, he wrote to the Commissioner of Labour on 21st January 1997 and the matter was referred to the Legal Aid Department. As a result the Legal Aid Department issued a Writ of summons in this matter on 4th April 1997. It should also be noted that the bulk of the Plaintiff's claim is for loss of earnings after 4th April 1997 since he was paid his full salary by FSD up to that date.

16. To what extent has this delay affected the cogency of the evidence adduced or likely to be adduced by the parties. In this respect I take into consideration that immediately after the accident on 26th September 1993 an internal investigation was held by the FSD the next day into the cause or possible cause of the accident and for that purpose statements in writing were taken from not only the Plaintiff but also from one other fireman, Lau Chin Lun, who was right next to the Plaintiff at the branch of the hose when it swung. These statements were taken to find out what actually happened and to try to discover the cause of the accident. Such an investigation is normal procedure with the FSD whenever a fireman sustains injury while on the job. Ultimately there was a report prepared by those investigating into this matter giving the result of the investigation

17. The incident therefore crystallised on paper in the form of statements from the various 'witnesses' - statements which could be used by such 'witnesses' to refresh their memories as to the event and the actual happenings at the material time. Indeed Lau Chin Lun was called as a witness of fact and did give evidence for the Defendant at the trial. Another witness of fact, Liu Chi Ho, another fireman who witnessed the swing of the hose at the material time when he was about 1 to 2 metres behind the Plaintiff, was also called to give evidence although he had not given any statement at the internal investigation into this matter. Form his evidence there is no indication that he had any difficulty remembering the event or any of the details. Neither was there any suggestion by either side that there would have been other witnesses who were present at the material time but because of the delay they could not be called to testify.

18. I need also to take into consideration the conduct of the Defendant. Whilst the Defendant in this case is the Secretary of Justice, the Defendant is sued as the representative of the Government. As such I am entitled to look at the conduct of the FSD. The timing of the notification by the FSD to the Plaintiff that he would be invalidated from the FSD is about 3 years and 2 months after the date of the accident. Nothing suggests that this timing was in any way deliberately intended. Indeed it follows soon after the recommendation from the medical board in September 1996 that his duties should be terminated. Whether deliberately intended or not the timing was such that by the time the Plaintiff realised that he would be out of a job, it was just past 3 years from the date of the accident. In this sense therefore, the dismissal of the Plaintiff in October 1996 also contributed to the delay in these proceedings being started.

19. I also accept the evidence of the Plaintiff that when he spoke to the Welfare Officer in the FSD enquiring into the possibility of being transferred to another post, he was told by the Welfare Officer that it had never happened that a fireman being invalidated by the FSD had ever succeeded in being transferred to another post in the past and that constituted the main reason why the Plaintiff did not press on for such a transfer. I cannot imagine the Plaintiff, a father of 3 small children at the time, with only Form 2 educational level and who had spent 11 years as a fireman with no other skills, would simply have indicated his wish not to seek alternative employment in government as stated in the letter of 23rd October 1996 informing him of his invalidation from the FSD.

20. Taking account all the circumstances of the case, on the one hand, if the Court's power is not exercised to override the time limit, the Plaintiff would be left without any other recourse since this is not a case, like many others, where the delay is attributable to solicitor's inactivity, thereby enabling a plaintiff to bring an action against his solicitors for negligence. On the other hand, exercising my discretion under section 30 of the Limitation Ordinance will not result in any prejudice to the Defendant in the defence of this action for the reasons set out above. Balancing all the circumstances of this case, I therefore come to the conclusion that it would be equitable to allow this action to proceed and accordingly I direct that the provisions of section 27 of the Limitation Ordinance shall not apply to this action.

The Plaintiff's Case

21. The Plaintiff gave evidence that at about 10.40 p.m. he and another fireman Lau Chin Lun together took up the task of being branchmen (i.e. they were together holding the nozzle of a 70 mm hose), with the Plaintiff in the forward position on the right of the nozzle and Lau on the left just slightly behind him almost shoulder to shoulder. Being in the forward position, it was for the Plaintiff to control the jet of the hose. There is no dispute between the parties that the water pressure in the hose was at the material time maintained at 7 bar which was controlled from the pump tender.

22. Each time the Plaintiff and Lau succeeded in clearing some of the mud and sand from the landslip with the jet, they would move further forward to clear more mud and sand from the landslip. However before moving into a forward position they would turn down the jet to reduce the water pressure, signal to other firemen behind them to carry the hose behind them further forward and then move into the forward position themselves before turning on the jet pressure of the hose again. All this precaution is necessary to ensure that there is no unexpected movement of the hose from behind which could alter the direction of the pressure of the jet resulting possibly in the branch being made to swing as this could in turn be dangerous for the branchmen since the branch which was used is a nozzle made of heavy metal and a similar one to the one used was produced as an exhibit at the trial.

23. At about 11.20 p.m., while the Plaintiff was still the forward branchman with Lau Chin Lun immediately behind him and while still jetting down the mud, the Plaintiff felt a sudden and forceful swing of the hose to the right. He, being on the right side of the nozzle, took the full force of the swinging branch together with the force of his partner who was also slightly off balance and leaning towards the Plaintiff as a result of the swinging branch. The Plaintiff estimated this force of the swinging branch together with the force of his partner falling towards him to have a total force of about 200 pounds.

24. The Plaintiff tried to keep the hose and the nozzle in control by turning his waist to the right with the swing of the hose but lost his balance because he was standing in some half foot of mud. At the same time he turned his right shoulder to the left. He did this so as not to lose his balance and not to lose control of the hose as he knew that should he fall down and lose control of the hose, it would be dangerous for his partner as the hose was then liable to swing violently like a snake. The Plaintiff managed to prevent himself from falling down on the ground but in the process 'sprained' his shoulder and instantly yelled out in pain.

25. The Plaintiff further gave evidence that immediately on this happening, from his experience as a fireman for 11 years, he believed that someone must have moved the hose forward from behind them without giving them (i.e. the two branchmen) any warning. From his experience he knew that the branch would swing for only two reasons - first, that there was a change in the water pressure and second, that the hose behind the branchmen had been moved. As a result he turned to look back and in his evidence in chief (contained in his witness statement) said he shouted at the firemen behind them and told them not to move the hose any more. However when cross-examined, he said that it was Lau Chin Lun, and not him, who had shouted words to that effect to the firemen behind. When cross-examined on what was stated in his statement, the Plaintiff said that what is stated in the statement is wrong and maintained that it was Lau who yelled to the others not to meddle with the hose.

26. Moreover, in cross-examination the Plaintiff agreed that when he turned round after spraining his shoulder which was almost immediate, he did not see anyone moving any part of the hose, all he could say was that some parts of the hose behind him were lying on the ground right at the feet of some of the other firemen who were about 8 to 9 metres behind him and Lau Chin Lun.

27. After he had sustained the injury to his shoulder, the Plaintiff continued with the hose for a few more minutes, but when he could not tolerate the pain in his shoulder any longer he asked to be relieve. Thereby, this accident was reported to Principal Fireman Kwong Tsang Yuen at the scene who in turn reported it to the officer in charge at the scene, Senior Station Officer Cheung Kam Wah. As a result the Plaintiff was conveyed to hospital from the scene at 11.40 p.m. that night.

Medical Evidence

28. Dr. Lau Hoi Kuen was called by the Plaintiff. His evidence was largely unchallenged by the Defendant who did not call any medical witness. Dr. Lau examined the Plaintiff in April 1997 and found that the Plaintiff is still suffering pain and stiffness in his right shoulder. He confirms that the Plaintiff is suffering from impingement of the tendon in his right shoulder. He states that despite the arthroscopic decompression and the manipulation of the shoulder joint under general anaesthesia in June 1994, the pain and the stiffness of the shoulder has persisted. In his opinion, the shoulder arthroscopy should be repeated and if the impingement / tendon rupture could be identified then decompression / tendon repair can be carried out. He assessed the Plaintiff to have a 16% permanent disability and 25% loss of earning capacity. He was also of the opinion that the Plaintiff cannot fulfil the duties of a fireman but may perform light duties work.

29. In cross examination he said that given the circumstances of the swinging hose which was on the left side of the Plaintiff swinging to the right side, it is possible for the Plaintiff to have sustained this injury as a result without sustaining any injuries to the left side of the Plaintiff's body. He also said that this injury of the Plaintiff's could have been caused either when the Plaintiff twisted his body to counter the force of the swing or as a result of the Plaintiff's right hand coming into contact with the ground thereby jarring the shoulder.

The Defence Case

30. The defence called four witnesses who were all at the scene that night, Senior Station Officer Cheung Kam Wah, Principal Fireman Kwong Tsang Yuen, Fireman Liu Chi Ho and Fireman Lau Chin Lun. However only the latter two were able to give direct evidence of what they saw happened at the material time when the hose swung.

31. Fireman Liu Chi Ho's evidence was to that at the material time, he was about 2 metres behind the Plaintiff and Lau Chin Lun both of whom were the branchmen of a hose jetting water at high pressure at the mud and sand from the landslip with the Plaintiff as the forward branchman on the right side of the hose with Lau on the left. There were 1 or 2 other firemen between him and the two branchmen but his view of the Plaintiff and Lau was not obstructed. There were also many other firemen behind him. The Plaintiff and Lau were standing in about half a foot of mud at the time. Suddenly he saw that both of them lost their balance and both leaned towards the right side at the same time. The Plaintiff tried to support himself using his right hand which he saw going into the mud but could not tell whether the Plaintiff's right hand actually touched the ground under the mud. In any event the Plaintiff was able to steady himself and then continued with his work. He did not see anyone moving the hose. Several minutes later the Plaintiff called for other colleagues to relieve him and later he became aware that the Plaintiff was conveyed to hospital.

32. Lau Chin Lun, the fireman assisting the Plaintiff at the branch also gave evidence. In his evidence in chief (from his witness statement) he stated that at about 11.20 p.m. he felt a sudden swinging movement of the hose but the movement was not strong. Both he and the Plaintiff then tried to hold on to the branch steadily but the Plaintiff lost his balance and leaned towards the right side. The Plaintiff screamed once and tried to support himself by pressing his right hand onto the ground. Both of them then turned round and he saw other firemen working behind them but he did not know what had caused the hose to swing. Before the hose swung, neither he nor the Plaintiff had requested anyone to move the hose forward. He further confirmed that after a few minutes, the Plaintiff asked to be relieved by another colleague. Still later when he himself took a break from his duties he learned that the Plaintiff had been conveyed to hospital.

33. In the witness box, Lau was asked to elaborate on his witness statement by counsel for the Defendant. He stated that even before the hose swung at the material time causing the Plaintiff to lose balance, he had in fact felt some small jerking movements on the hose, but these were very minor jerks which he had felt. He did not know the cause of these jerks in the hose.

34. He also said that after the Plaintiff had regained his balance, both of them looked behind. He saw about four colleagues clearing rocks behind them and there were more firemen behind those four but he did not see any of them moving the hose. At that time the Plaintiff had yelled at them saying 'Is something wrong' but did not say anything else.

Evidence from Non-Medical Experts and demonstration

35. In this respect the Plaintiff called an expert witness, Mr. Stephen Magnus-Hannaford while the Defendant relied on the expert evidence given by Mr. Lee Ting Pang. The expert evidence given by them were in relation to using a 70 mm fireman's hose.

36. There is no dispute between the two experts that a swinging branch can only be caused in one of two possible ways, namely either by a change in the water pressure in the jet or by a change of direction of the pressure in the jet. Where they differed was that while Mr. Hannaford took the view that moving the hose at a point of some ten metres behind the branch was liable to cause the branch to swing, Mr. Lee was of the opinion that only movement of the hose not more than three metres behind the branch would cause that to happen.

37. This difference in opinion between the experts led to the Defendant applying for, and being granted leave to hold a demonstration at the Central Fire Station which demonstration was recorded on video and the video tape being exhibited in evidence by consent of the parties. The demonstration quite clearly showed that lifting up of the hose to a height of over the head of a person at a point about 10 metres from the branch and throwing it down again on the ground on a number of occasions did not cause the branch to swing. On some of those occasions it did cause a slight 'snaking' of the hose when it was thrown down but the 'snaking' was backwards i.e. in the opposite direction to the branch and the 'snaking' was for only about 1 or 2 metres only.

38. It was also clear from this demonstration that if the hose was left alone and there was no change in water pressure, the branch remained absolutely still without so much as even a tiny jerk. This was quite appreciable in the demonstration when the branch was rested on a stand with the water pressure turned on to 7 bars and then 10 bars respectively which was accepted by both parties as the range of the pressure of the water jet at the material time of the accident.

39. Both experts called by the parties attempted to throw light as to what may have caused the branch to swing at the time of the accident in the way that the various witnesses described it. Mr. Hannaford, after he had had a chance to view the site of the landslip on the first day of the trial, came forth with the suggestion that it was most likely that some of the firemen working behind the two branchmen had lifted up the hose to release the mud and other debris which had collected and was blocked by the hose lying on the ground at the material time and it was this lifting up of the hose (without a proper warning to the branchmen to turn off the water jet) which had caused a change in the direction of the water pressure thereby causing the branch to swing. However this theory of his is not supported by the evidence in the case. The Plaintiff's evidence was that at the time he turned to look behind after he had regained his balance from the swing of the hose the nearest firemen behind him who were close enough to the hose to have been in a position to have moved it was about 10 metres or so from him. This evidence, coupled with the demonstration which showed that movement of the hose at a point some 10 metres behind the branch does not make the branch swing effectively puts an end to Mr. Hannaford's theory.

40. On the other hand, the possible causes suggested by Mr. Lee were that some gravel may have found its way into the hose despite the presence of a filter installed in the pump tender and that this would affect the water pressure in the hose thereby causing the branch to swing. This suggestion was, however, wholly unsupported by any evidence in the case which showed that gravel might have found its way into the hose that was used that night.

41. Another possibility put forward by Mr. Lee was that the Plaintiff, while being the forward branchman thereby being in control of the water jet from the hose, may have inadvertently knocked against the lever mounted on the nozzle which controls the jet thereby changing the pressure suddenly thus causing the hose to swing. Again this is not supported by the evidence in this case as there is not the slightest suggestion from the evidence of Lau Chin Lun who was beside the Plaintiff at all material times that something like this happened.

Findings of fact

42. Having heard and considered all the evidence in the case including the expert evidence and the demonstration, I find that at the material time the branch of the hose which was held by the Plaintiff and Lau Chin Lun did swing to the right with a force sufficiently great to cause the two of them to be momentarily knocked off balance, more so the Plaintiff as he was on the right of the hose taking the full brunt of the force of the swing than Lau Chin Lun who was on the left side of the hose. This swinging movement of the branch came suddenly without warning and took both men by surprise.

43. I further find that the Plaintiff did not fall to the ground and it was only a matter of seconds that he was able to regain his balance after countering the force of the swinging branch. However in so doing he injured his shoulder and screamed out in pain. In all probabilities the Plaintiff's right hand may well have come into contact with the ground when he steadied himself without his even realising it. It is however immaterial whether or not his hand came into contact with the ground since, based on the above findings, the injury sustained by the Plaintiff to his right shoulder could only have been caused by the swinging movement of the branch, whether it is a 'twisting injury' or whether it resulted from his right hand hitting the ground.

44. In the light of this finding, the central issue to be decided in determining liability is what was the cause of the branch swinging in the way it did. From all the evidence before me it has not been proved what had caused the branch to swing as it did. I find therefore that the cause of the branch swinging to be unknown.

Liability

45. On the facts as I have found them, the question remains whether negligence has been established against the Defendant. The Plaintiff has pleaded and has relied on res ipsa loquitur. All the authorities suggest that res ipsa loquitur comes into operation upon proof of:

(1) the happening of an unexplained occurrence;

(2) the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and

(3) the circumstances point to the negligence in question being that of the defendant, rather than that of any other person.

46. In the present case I have already found from the evidence that the cause of the branch swinging to be unknown.

47. Secondly, it is common ground of both experts called by the parties that a branch would not swing unless there is a change in the water pressure in the hose or a change of direction of such water pressure. Moreover this is clearly borne out in the demonstration at the Central Fire Station where the branch remained motionless and static when placed on a stand jetting out water at both 7 bars and 10 bars.

48. It follows therefore that when the branch swung at the material time when held by the Plaintiff and Lau Chin Lun, something must have happened either to the pressure of the water inside the hose or to the hose itself causing a change in direction of the water pressure in the hose. Whatever it was that was done either to the water pressure or to the hose is suggestive of negligence for in the normal course of things there should not be a change in the water pressure or a change of direction of the water pressure. Indeed according to both experts it is basic training for all firemen that every precaution should be taken to ensure that nothing is done to cause a branch to swing which is recognised to be dangerous to branchmen.

49. Thirdly, the circumstances of the whole case was that the pump tender (i.e. a vehicle of the FSD with pumping facilities) was connected to a hydrant on Tai Po Road - both being on that side when the slip road led down to Cheung Shu Tan Village so that there was no possibility of traffic along Tai Po Road running over the hose causing a change in the water pressure. The pump tender was manned by a fireman who was controlling the water pressure being pumped out from the tender which was pumped along another hose leading down the slip road from the pump tender. At the material time the slip road was closed during this whole operation so again no possibility of traffic running over this hose. This hose was then connected to a divider (an instrument which allows the main hose to be split into two separate hoses which could then be separately used independent of each other) and from this divider ran the hose ending up with the branch held by the Plaintiff and Lau Chin Lun. Although there was a divider at the stone bridge, at the material time of the accident, there was not in use a second hose other than the one used by the Plaintiff and Lau Chin Lun.

50. Under these circumstances, from the hydrant and from the pump tender manned by a fireman all the way down to the branch held by the Plaintiff and Lau Chin Lun, if anything was done either to the hose or to the water pressure inside the hose, it is difficult to see how it could have been done by anyone other than the FSD or by the firemen who were present at the scene. There was certainly no evidence before me that at the material time there were any other persons at the scene who were not personnel from the FSD. Moreover, all the sections of the hoses used and the pump tender are equipment belonging to the FSD. The only part of the hose in the control of the Plaintiff was the branch held by him and Lau Chin Lun. That being the case, I must need go one step further to determine whether the swinging of the branch could have been attributed to any negligence on the part of the Plaintiff.

51. The swinging movement of the branch was witnessed by both Lau Chin Lun who was standing almost shoulder to shoulder with the Plaintiff and also by Liu Chi Ho standing some several metres away, both of whom gave evidence for the Defendant. Nothing in the evidence of either of these two witnesses suggest that the Plaintiff had acted in any way other than properly as a trained fireman would. The only suggestion that the Plaintiff may have caused the branch to swing came from the evidence of the Defendant's expert Mr. Lee which I have already dealt with. It is no more than a suggestion by Mr. Lee when he was asked in the witness box what were the possible causes of the branch swinging. It was not given by Mr. Lee as evidence of fact because Mr. Lee was not present and did not see the actual occurrence for himself.

52. In all the circumstances of this case therefore, I come to the conclusion that it is more likely than not that it was due to the negligence of either the FSD or some one or more of its personnel which caused the branch to swing at the material time resulting in the Plaintiff's shoulder being injured. From all the evidence adduced by the Defendant, the cause of the branch swinging has not been explained and the inference of negligence has not been rebutted. Accordingly I find the Defendant liable to the Plaintiff in negligence.

Contributory Negligence

53. Contributory negligence has been pleaded and relied on by the Defendant. It is alleged by the Defendant in its pleading that contributory negligence arise in the following ways, which I shall deal with in turn.

54. Firstly, it is alleged that the Plaintiff caused or contributed to the sudden movement of the hose by initiating the advancement of the hose. The evidence from all the witnesses is quite clear that at the material time of the swing, the Plaintiff and Lau Chin Lun were not in the process of advancing although they had advanced earlier on, but when they did the jet had been either turned off or turned down to enable them to advance.

55. Secondly, it is alleged that the Plaintiff failed to heed or give sufficient heed to the sudden movement of the hose. I have already found as a fact that the swing of the branch caught the Plaintiff by surprise, and I fail to understand how the Plaintiff could have heeded to it when the swing was so sudden that he was completely taken by surprise.

56. Thirdly it is alleged that the Plaintiff failed to maintain balance or proper balance of his body during the sudden movement of the hose. Once again it was because of the sudden swinging movement of the branch the force of which caught the Plaintiff by surprise that the Plaintiff lost his balance momentarily. In all the circumstances I cannot see how the Plaintiff could be faulted for losing his balance, particularly when the Plaintiff had to cope with the then difficult condition of being in some half foot of mud.

57. Next it is alleged that the Plaintiff pressed against the ground with his right hand when he knew or ought to have known that he could be injured by such self inflicted act. I have already found as a fact that the Plaintiff was knocked off balance by the swing of the branch. If the Plaintiff's right hand came into contact with the ground, it was only an instinctive reaction of his necessary for him to steady himself and regain his balance so as not to lose complete control of the swinging branch which may have been dangerous for his partner. It was hardly the case that the Plaintiff deliberately pressed his hand on the ground with the realisation that he could be injured in so doing.

58. Lastly it is alleged that the Plaintiff failed to follow standard procedure in case of loss of control over the hose by throwing himself on top of the branch and pinning it between him and the ground until assistance arrives. It is clear from the expert evidence in this case that that is the standard procedure which any fireman should follow when there is a snaking branch out of control. However, in the present case, at no time did the Plaintiff lose control of the branch albeit that he was knocked off balance by the swing of the branch. Once again I cannot see how the Plaintiff could be said to be negligent for failing to throw himself on top of the branch when he did not lose control of it and when the branch was at all material times in his grip.

59. Having considered all the evidence I find that the Plaintiff did not contribute in any way to the occurrence of this accident. Accordingly it follows that the Defendant is fully to blame for this accident resulting in the impinged tendon to the Plaintiff.

Quantum

60. On the first day of trial I had been handed an 'Agreed Statement of Damages' signed by both counsels whereby counsels had agreed most of the heads of damages in this case as follows:

(a) Pain, suffering, loss of amenities are agreed to be HK$350,000.00;

(b) Past loss of earnings are agreed as -

(i) HK$14,505.00 for the loss of possible chance of promotion;

(ii) HK$228,120.00 for loss of earnings from April 1997 to March 1998; and

(iii) HK$38,020.00 for loss of earnings from April to May 1998.

(c) Loss of future earnings are agreed at HK$1,452,600.00;

(d) Special damages are agreed at HK$9,250.00; and

(e) Loss of subsidised housing is agreed at HK$140,460.00.

61. The only item in dispute in so far as quantum is concerned is the claim for loss of future earnings capacity. Under this head the Plaintiff claims HK$300,000.00. In his evidence the Plaintiff said that he was presently (at time of trial) not employed but now depends on public assistance. The basis upon which Mr. Harris puts the Plaintiff's claim under this head of damage is that while there is agreed loss of future earnings at HK$1,452,600.00, there is always that possibility that when the Plaintiff is in employment at some future date, if he should be laid off or for any other reason lose his job, it would be that much more difficult for him to find alternative employment because of the injuries he had sustained.

62. On the other hand, the Defendant says that the Plaintiff is not entitled to a further claim under this head when there is already agreed damages for loss of future earnings. The Defendant relies on the case of King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 where in his judgment at page 61 Mayo J. Said :-

"Mr. Swaine submitted that it was right for such an award to be made. He argued that the award had been reduced by what the trial judge had notionally determined the respondent would be able to earn in his handicapped condition. It was apparent from the evidence that it was likely that when the respondent went out to work, he would have less job security than a normal employee in the type of work contemplated and that if he did lose his job, it would take him longer to find alternative employment.

We do not accept the validity of this contention. It is unduly artificial to add an unknown element of this type to the consideration which need to be borne in mind in determining a proper assessment of a plaintiff's earning capacity in the future."

63. What was said by Mayo J in the judgment cited above is equally applicable to the present case and for that reason the Plaintiff's claim for loss of earnings capacity is disallowed.

Interests

64. Interests at 2% per annum from date of Writ to date of judgment would be awarded on the agreed damages of $350,000.00 for pain suffering loss of amenities. This comes to $9331.00

65. Interests on agreed special damages of $9250.00 would be awarded at the rate of 5.8% from the date of accident until date of judgment. This comes to $2593.00

66. Interests for pre-trial loss of earnings would also be awarded at 5.8% but since the pre-trial loss of earnings only started from after 4th April 1997 (prior to that date the Plaintiff received full salary) it would be calculated from 4th April 1997 until date of judgment. Moreover in calculating interests for pre-trial loss of earnings I do not include the loss of chance of promotion as that is in the nature of general damages and should not attract interest. Interests would only be awarded for the loss of earnings as from April 1997 onwards. This comes to $20,576.00. The total amount of interests therefore comes to $32,500.00.

Conclusion

67. The total amount of quantum including interests comes to $2,265,455.00 from which will have to be deducted the sum of $155,000.00 being the amount of employee's compensation already paid to the Plaintiff. There will be judgment to the Plaintiff in the sum of $2,110,455.00.

68. There will also be the usual costs Order nisi that the Defendant pays the Plaintiff the costs of this action such costs to be taxed if not agreed and the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.