WONG MING KWAN v. WING MING ELECTRICAL CO. LTD. AND OTHERS

HCPI 760/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.760 OF 2003

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J U D G M E N T

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1. The plaintiff claims damages against the defendant for personal injuries sustained by him at work on 22 July 2000.

2. The plaintiff was a lorry driver cum delivery worker employed by the 1^st defendant since 1995.

3. The 4^th defendant was a material supplier of the 1^st defendant.  The 2^nd and 3^rd defendants were employees of the 4^th defendant at the time of the accident.

4. On 22 July 2000, the 4^th defendant was delivering metal ducts by lorry to the 1^st defendant at Pui Ching Primary School in Ho Man Tin.  The metal ducts had been purchased by the 1^st defendant.

5. At the Pui Ching Primary School, the 2^nd and 3^rd defendants were unloading the metal duct from the lorry of the 4^th defendant using a mechanical elevating platform at the rear of the lorry.

6. The plaintiff and two other colleagues, also employed by the 1^st defendant, were taking delivery of and counting the metal ducts delivered by the 4^th defendant.  It is the plaintiff’s case that he was doing this about two to three metres from the rear end of the 4^th defendant’s lorry with his back to the lorry.

7. It is also the plaintiff’s case that at that moment, when the 2^nd and 3^rd defendants were attempting to lower a third rack of metal ducts from the 4^th defendant’s lorry using the elevating platform, suddenly the rack on which the metal ducts had been stacked in a disorderly manner, toppled over spilling the metal ducts some of which fell on him and severely cut his right leg resulting in the plaintiff sustaining injuries to his right leg.

PLAINTIFF’S EVIDENCE OF THE ACCIDENT

8. The plaintiff himself was the only witness who gave evidence for the plaintiff.

9. It was his evidence that on the day of the accident, his boss had told him to go to the Pui Ching Primary School together with two colleagues, Yip Chung Leung and Chan Kam Fai, to take delivery of the metal ducts to be delivered there by the 4^th defendant and to count the metal ducts delivered.  There were some 800 pieces of metal ducts to be delivered by the 4^th defendant.

10. When the 4^th defendant’s lorry (driven by the 2^nd defendant) arrived at the Pui Ching Primary School, the lorry stopped with its back at a slightly slanting angle towards the covered playground (also called the school hall in the pleadings) of the school.

11. In that position, the 2^nd and 3^rd defendants began to unload the metal ducts from the lorry onto the ground.

12. The metal ducts were of different length and sizes and were loosely tied by strings, some of the strings being broken.  They were stacked in a disorderly manner on three metal racks.  Because the metal ducts were longer than the three metal racks on which they were stacked, some of the metal ducts protruded from the ends of the metal racks.

13. By using a forklift trolley which was in the lorry compartment, the 2^nd and 3^rd defendants had unloaded the first and second metal racks onto the ground using the elevating platform.  The first and second metal racks were placed on the ground at a distance of some two to three meters behind the rear of the 4^th defendant’s lorry.  There the plaintiff and his two colleagues started to take the metal ducts down from the first two metal racks and also to count the number of metal ducts delivered. 

14. They had finished taking the metal ducts down from the first metal rack and had counted those ducts.

15. When they proceeded to deal with the second metal rack, the plaintiff was holding the rack to steady it while his two colleagues were taking the ducts down from the rack and also counting the ducts they had taken down.

16. At that time, the plaintiff had his back to the lorry and was standing about two to three metres from the elevating platform of the lorry.  At the same time, the 2^nd and 3^rd defendants were unloading the third metal rack stacked with metal ducts from the lorry onto the ground using the forklift trolley and also the elevating platform.

17. Suddenly, the plaintiff heard some noise behind him, turned round and saw the forklift trolley and the third metal rack toppling over on the elevator platform of the lorry.  He also saw the metal ducts stacked on the third metal rack sliding down onto the ground some of which flew towards him hitting and crushing him on his right leg.

18. His right leg was severely cut by the falling metal ducts which hit him and he was bleeding profusely in his right leg.

19. It is also the evidence of the plaintiff that the metal ducts weighed from between 18 to 23 pounds depending on the size and many of the ducts had very sharp edges.

20. As a result, the police were called and the plaintiff taken by ambulance to Queen Elizabeth Hospital.

21. The Labour Department was also summoned and attended the scene to investigate this accident.  Photographs were also taken of the scene and the metal ducts by officers of the Labour Department.  Unfortunately, when the officers from the Labour Department arrived at the scene to investigate this accident, the 2^nd and 3^rd defendants had left and no statements were even taken from them by the Labour Department as to the occurrence of the accident.

THE 1^ST DEFENDANT’S STANCE RE THE ACCIDENT

22. The 1^st defendant did not dispute any of the factual evidence adduced by the plaintiff in respect of the happening of the accident to the extent that the 1^st defendant’s counsel did not even see fit to cross-examine the plaintiff as to the facts given by the plaintiff on how the accident happened.

23. The evidence from the only witness called by the 1^st defendant relates solely to the issue of quantum.

24. In closing submission, counsel for the 1^st defendant stated categorically that the 1^st defendant accepts all of the facts given by the plaintiff as to how the accident happened.

THE 2^ND DEFENDANT’S EVIDENCE AS TO THE ACCIDENT

25. The 2^nd defendant, acting in person, gave evidence as to the events surrounding the accident.  His evidence differed from that given by the plaintiff substantially in several respects.  His evidence can be summarized as follows.

26. He was the driver of medium goods vehicle employed by the 4^th defendant.  On the day in question, he and the 3^rd defendant delivered a quantity of metal ducts to the Pui Ching Primary School to be taken delivery of by the 1^st defendant.

27. The metal ducts were stacked onto three metal racks and carried by the lorry driven by him.

28. When they got to the school, he and the 3^rd defendant began to unload the metal racks with the metal ducts stacked on it by using forklift trolley as well as making use of the elevating platform at the end of the lorry.

29. Each metal rack was stacked with about 100 odd metal ducts.  The metal ducts were tied in bundles of four ducts to each bundle and were stacked onto the racks by the supplier in mainland China.

30. He and the 3^rd defendant managed to unload the first metal rack of metal duct from the lorry onto the ground using the elevating platform and forklift trolley.  The first rack was then pushed to the covered playground (referred to as the ‘school hall’ in his witness statement) and handed over to the workers of the 1^st defendant.  The distance from the lorry to the school hall or covered playground was about 30 to 40 feet.

31. The two of them then returned to the lorry with the forklift trolley intending to unload the second metal rack stacked with metal ducts onto the ground.

32. When the two of them were pushing the second metal rack using the forklift trolley from the lorry compartment to the elevating platform at the rear of the lorry, they heard a “bang” sound and the platform moved, tilting downwards.  As a result, the trolley of metal ducts fell to the ground towards the direction of the rear of the lorry.  The two of them became frightened but saw that there was no one at the position where the ducts had fallen.  Seeing that the falling metal ducts did not hit anyone, he and the 3^rd defendant calmed down.

33. About a minute later, he heard someone shouting that a person was injured.  He looked outside the lorry and saw that one of the workers of the 1^st defendant was sitting on the ground at a position near the front of the lorry near to the covered playground and about 30 feet from the lorry.  That was the position where the workers of the 1^st defendant had received the first metal rack of metal ducts from them.

34. It was also his evidence that there were two sets of controls, one set inside the lorry compartment and another set on the exterior of the lorry at the left rear side, either of which set could be used to move the elevating platform up or down.  There was also a button which, when pressed, would tilt the platform downwards.

35. He suspected that someone may have touched the set of control on the outside of the lorry thus causing the platform to tilt downwards resulting in the forklift trolley and metal rack toppling over.  However, he did not see anyone touching the set of control outside the lorry as he was not in a position to see it being inside the lorry.

36. He was adamant that when the metal ducts fell form the lorry, the plaintiff was nowhere near the end of the lorry and that there was no blood stain at the rear of the lorry.  From this he believed that the injuries to the plaintiff should not be caused by the falling metal ducts.

37. In cross-examination, the 2^nd defendant was unable to say what was the weight of a single piece of the metal duct that were delivered by them on the day of the accident.  However, he thought that a metal rack stacked with the metal ducts as the one delivered on that day would weigh about 700 kgs.

38. When cross-examined about the very moment when the trolley and the metal rack fell from the platform of the lorry, he said that at that very instant, he and the 3^rd defendant had momentarily gone back into the lorry compartment to retrieve something and the trolley and metal rack was left standing on the elevating platform by itself but that the jack of the trolley had been let down so that the metal rack was free standing on the elevating platform and could not be wheeled, therefore it was standing quite safe on its own.

39. When he heard that someone had been injured, he had gone over to where the plaintiff was sitting on the ground and saw that the plaintiff was bleeding.  All he did then was to ask the other workers of the 1^st defendant whether anyone had called for the police.  He did not know how the plaintiff got injured and he did not ask anyone, including the plaintiff, how he got injured.  Nor did anyone tell him how the plaintiff got injured.

40. When he was asked in cross-examination why he did not ask anyone how the plaintiff got injured, his reply was that he did not ask because it had nothing to do with him.

EVIDENCE FROM THE 3^RD AND 4^TH DEFENDANTS

41. The 3^rd and 4^th defendants elected not to give evidence or call witnesses.

FINDING OF FACT

42. I have no difficulty preferring the evidence of the plaintiff to that given by the 2^nd defendant as to how this accident happened.

43. The version given by the plaintiff has been consistently the same version as given by him to firstly, the Labour Department officer investigating into this accident shortly after the accident; secondly, to the loss adjusters of the 1^st defendant at a later date; and thirdly, as given by him in his witness statement herein and in the witness box.

44. When it comes to the 2^nd defendant, there are already differences given by him in his witness statement herein and in his evidence from the witness box.  The major difference between his witness statement and his evidence in court was in relation to the position of the plaintiff at the time the accident happened.  Another difference was that in his witness statement, the 2^nd defendant said that the toppling of the trolley (and the metal rack on which the metal ducts were stacked) occurred when he and the 3^rd defendant was pushing it onto the elevating platform.  However, when in the witness box, he said that the toppling occurred when the trolley had been left standing on the platform while he and the 3^rd defendant went back into the goods compartment of the lorry to fetch something.

45. However, the main reason for my disbelieving the version given by the 2^nd defendant is that although he does not dispute that the trolley did topple over spilling all the metal ducts stacked on the metal rack onto the ground, but that nobody was injured by the falling metal ducts, yet about a minute later he heard shouts that someone had been injured and he saw the plaintiff sitting on the ground injured and bleeding some 30 feet away ahead of the front of their lorry.  That alone is already far too great a coincidence that both the versions given by the plaintiff and the 2^nd defendant contain a toppling of the trolley and spilling of the metal ducts as well as an injured plaintiff, except that with the version of the 2^nd defendant, if true, they would be two very separate occurrences which could not be related to one another because the plaintiff was some 30 feet away from the front of the lorry and not in the vicinity just behind the rear of the elevating platform.

46. Furthermore, the evidence of the 2^nd defendant is not believable in that when he heard shouts of someone being injured and saw the plaintiff sitting on the ground some 30 feet away from the lorry, he did bother to go over to where the plaintiff was and seeing that the plaintiff was injured and bleeding, he also bothered to ask if anyone had reported to the police, yet, and this is the illogical part of his evidence, he did not even ask either the plaintiff or any of the other workers from the 1^st defendant who had been with the plaintiff how the plaintiff got injured.

47. If, in fact, the 2^nd defendant did not ask how the plaintiff got injured, the only possible explanation for it must be that he in fact saw that the plaintiff was injured from the falling metal duct.

48. If, in fact, the 2^nd defendant did not see how the plaintiff was injured and that the plaintiff was some 30 feet away from the front of the lorry when he got injured, then it makes no sense for the 2^nd defendant not to have asked anyone at all as to how the plaintiff got injured.

49. In this respect, I accept the submission of Mr Lam for the plaintiff that the 2^nd defendant, in giving the evidence the way he did, was indeed trying to distance himself and possibly the 3^rd and 4^th defendants as well from responsibility in this matter.  Therefore, the illogicality of his evidence came about because he merely wanted to change the timing of the accident to the plaintiff (being one minute after the toppling of the trolley) and the distance and position the plaintiff was from the lorry.

50. In my view, there was absolutely no reason for the plaintiff to lie and concoct a story against the 2^nd, 3^rd and 4^th defendants if the accident did not happen the way the plaintiff said it did.

51. On the other hand, there is every reason for the 2^nd defendant to lie and to give a false account of what had happened with the hope of escaping liability for this accident both for himself and the 3^rd and 4^th defendants.

52. I also come to the conclusion that it is also for that same reason of escaping liability that the 2^nd defendant speculated that some other person must have fiddled with the controls on the exterior of the lorry causing the elevating platform to suddenly tilt towards the rear resulting in the trolley toppling over and spilling the metal ducts stacked on the metal rack.

53. I, therefore, accept in its entirety the evidence given by the plaintiff as to how this accident happened to him.  Where the evidence of the plaintiff on the happening of the accident conflicts with that given by the 2^nd defendant, I prefer the plaintiff’s evidence to that of the 2^nd defendant.

54. Quite apart from rejecting the evidence of the 2^nd defendant where it conflicts with the evidence of the plaintiff, I also do not accept the evidence of the 2^nd defendant that some other person had tampered with the control on the outside of the lorry thus causing the elevating platform to tilt towards the rear resulting in the trolley and metal rack toppling over.

LIABILITY

55. On the issue of liability, it would be easier for me to deal with the liability of the 2^nd, 3^rd and 4^th defendants first before I deal with the liability of the 1^st defendant.

56. The 4^th defendant’s liability is vicarious and dependent upon that of the 2^nd and 3^rd defendants, they being its servants.

57. In the case of the 2^nd and 3^rd defendants, on the facts of this case, there can be no question but that they were in control of the forklift trolley on which the metal rack containing the metal ducts were being moved when the accident happened.  That must be so whether they were actually pushing the trolley or whether they had left the trolley unattended on the elevating platform.

58. Having rejected the evidence of the 2^nd defendant, there is therefore no reliable evidence as to the immediate cause of the trolley and metal rack toppling over and spilling all the metal ducts.

59. All that can be said is that they were attempting to unload from the lorry a metal rack stacked with over 100 pieces of metal ducts each of about 8 feet long but stacked in a disorderly manner on the rack.  Because of the length of the metal ducts, they were protruding from both ends of the metal rack.  Some of them may have been tied in small bundles but some of the strings tying the ducts had broken.  The ducts, being of varying sizes, ranged in weight of about 8 lbs to 23 lbs each.  Even on the most conservative estimate, the metal rack with the metal ducts would have weighed totally well over 800 lbs.

60. When one looks at the photographs of the ducts (taken by the Labour Department officers during their investigation of this case), it could easily be seen that the ends of the metal ducts, in particular, the angled corners at the end of each duct, were sharp and pointed.

61. All of this points to the fact that the 2^nd and 3^rd defendants ought not to have allowed the trolley and metal with the ducts stacked on it to stand on its own on the platform.  That, in itself, was negligent of them.

62. Moreover, they should not have attempted to unload or lower such a heavy metal rack stacked with metal ducts in the way that they did.  That was also negligent of them.

63. Thirdly, without any direct evidence as to what was the actual cause of the trolley and metal rack toppling over, it could only be said that if due care had been exercised by the 2^nd and 3^rd defendants, the trolley and metal rack should not have toppled over spilling the metal racks.

64. Therefore on the facts as I have found, it is quite clear that the 2^nd and 3^rd defendants were negligent in the way in which they attempted to unload the metal rack of metal ducts from the lorry resulting in trolley and rack toppling over and spilling the metal ducts which resulted in the injuries to the plaintiff.  It follows that the 2^nd and 3^rd defendants are liable to the plaintiff for the accident and the injuries and disabilities to the plaintiff.

65. Accordingly, the 4^th defendant must also be liable vicariously to the plaintiff for the negligence of the 2^nd and 3^rd defendants.

66. Turning now to deal with the 1^st defendant.

67. It was submitted on behalf of the 1^st defendant by its counsel that the 1^st defendant should not be liable to the plaintiff because the 1^st defendant did not cause the trolley and metal rack to topple over.  It was also submitted that there was nothing that the 1^st defendant could have done to prevent this accident from happening.  It must be accepted on the facts as found that the 1^st defendant did not cause the trolley and the metal rack with the metal ducts to topple over.

68. However, that was not the case run by the plaintiff against the 1^st defendant, being his employer.  The plaintiff’s case against the 1^st defendant had always been that the 1^st defendant was negligent for this accident to the plaintiff because the 1^st defendant had failed to provide sufficient training, instructions and supervision to the plaintiff.

69. The plaintiff did give evidence that during the time of his employment with the 1^st defendant, he was not just a driver, but also had to help with the delivery of the goods carried in the vehicle that he drove, although there was always a vehicle attendant as well.

70. The plaintiff also gave evidence that on the day of the accident, Mr Lai had instructed him to return to the 1^st defendant’s office to pick up another colleague, Chan Kam Fai, to assist him and Yip Chung Leung when taking delivery of the metal ducts from the 4^th defendant.

71. There is also evidence from the plaintiff that throughout his employment with the 1^st defendant, he had not been given any training or instructions in moving or delivering goods.

72. None of this evidence given by the plaintiff was disputed by the 1^st defendant nor was the plaintiff even questioned on any of these matters in cross-examination.

73. It must have been known to the 1^st defendant that on the day in question, the 4^th defendant had to deliver about 870 pieces of the metal ducts.  The weight, or at least the approximate weight of those metal ducts, must also have been known to the 1^st defendant.

74. The evidence shows that apart from instructing the plaintiff and his two co-workers to proceed to the Pui Ching Primary School to take delivery of the metal ducts, no other instructions seem to have been given by the 1^st defendant to the plaintiff or his co-workers.  Certainly, no other person from the 1^st defendant who was in a position to supervise the plaintiff and his co-workers was present at the school when delivery of the metal ducts were taken by the plaintiff and his co-workers.  In those circumstances, it would appear that the 1^st defendant had delegated to the plaintiff and his co-workers the task of supervising the taking delivery of the metal ducts at the school.

75. Had someone from the 1^st defendant been present at the school when delivery of the metal ducts were taken on behalf of the 1^st defendant and had appreciated not only the weight of the ducts on each rack, but that the ducts were stacked in a disorderly manner on the metal racks being unloaded from the 4^th defendant’s lorry using the elevating platform, it must have been apparent to that person that the place where the plaintiff and his co-workers were counting the metal ducts some two to three metres from the rear of the elevating platform was not a reasonably safe place to carry out that work.

76. It can only be assumed that a responsible supervisor would have properly warned the plaintiff and his co-workers to have moved further away to a reasonably safe position to carry out their work of taking delivery and counting the metal ducts or to have waited until all three racks had been unloaded from the lorry before carrying out their counting of the ducts.  That would have been no more than the proper and reasonable discharge of an employer’s duty towards it employees.

77. In this case that was not done because no such supervisors went along.  In the absence of such a supervisor at the school, it can only be assumed that such duty of the 1^st defendant as employer was delegated to the plaintiff and his co-workers who were there.  If, therefore, the plaintiff or his co-workers were in breach of that non-delegable duty of the 1^st defendant, then the 1^st defendant will itself have to bear the consequence of it through its failure to properly supervise or instruct the plaintiff.

78. On that basis, I am of the view that the 1^st defendant is liable to the plaintiff for breach of its non-delegable duty to reasonably ensure the safety of the plaintiff in carrying out his work for the 1^st defendant.

CONTRIBUTORY NEGLIGENCE

79. Contributory negligence had been pleaded by all defendants.

80. At the trial however, the 1^st defendant, though represented by counsel, seemed not to have pursued this issue since no submission was made on it by counsel for the 1^st defendant in his final submission, nor any questions asked of the plaintiff in cross-examination on that issue.

81. As for the 2^nd, 3^rd and 4^th defendants, quite understandably they too did not make any submission on contributory negligence since all of them, being unrepresented, focused only on their defence which was that the accident to the plaintiff had nothing to do with the toppling over of the metal ducts.

82. Without the sophistication of counsel, they had not seen fit to submit on the alternative in the event that the factual findings by the court was not in their favour along the lines of their defence.  It would, of course, be in that scenario that contributory negligence would arise.

83. Notwithstanding therefore, that no submission by any of the defendants was made on the issue of contributory negligence, counsel for the plaintiff saw fit to, undoubtedly ex abundanti cautella, submit on the issue of contributory negligence in his final submission.  This no doubt because it had been pleaded.

84. It was submitted by counsel for the plaintiff that at the time of the accident, because the plaintiff had his back towards the elevating platform of the lorry and only turned around when he heard the noise of the metal ducts toppling over, the plaintiff cannot be said to have behaved or conducted himself in such a way as to have caused or contributed to the happening of the accident.

85. I have no hesitation in accepting the submission that the plaintiff did not cause or contribute to the happening of the accident.

86. However, the criteria in deciding whether or not there was contributory negligence of a plaintiff, is not restricted to determining whether that plaintiff caused or contributed to the happening of the accident.

87. It is also contributory negligence if the circumstances of a case is such that the plaintiff can properly be judged to have contributed to his injuries (as opposed to causing the accident).

88. In the present case, on the facts as found by me, I must also consider whether the plaintiff was to some degree to blame, or was to some extent at fault, by standing so close to the elevating platform of the lorry and having his back turned to it when he knew that a heavy rack of metal ducts stacked somewhat in disorderly manner, was being lifted down by that platform at the back of the lorry, and/or whether he ought to have taken more care himself to have positioned himself in such a way as would have put him in a less risky or dangerous position.

89. For the same reasons that I found liability to be established on the part of the 1^st defendant, namely, that if someone from the 1^st defendant was present supervising the work, it would have been apparent to such supervisor that the operation undertaken by the 2^nd, 3^rd and 4^th defendants in the way that it was gone about by them could be potentially dangerous to any other person standing too close to the back of the lorry.  That much should also have been apparent to the plaintiff himself.

90. I accept that on the evidence and on the facts found by me, the place where the plaintiff and his co-workers took delivery of the metal ducts from the 4^th defendant was probably dictated by the fact that the 2^nd and 3^rd defendants chose to wheel the trolley carrying the metal rack stacked with the metal ducts.  Likely that the plaintiff and his co-workers had no say as to the spot where the 2^nd and 3^rd defendants decided to hand over to them the ducts.  That would be the spot where the plaintiff and his co-workers started to count the metal ducts, and, ultimately, the spot where the plaintiff met with this accident.

91. However, be that as it may, there were still several options open to the plaintiff.  Firstly, he could have waited until all the ducts stacked on the three metal racks had been delivered and no more unloading to be done by the 2^nd and 3^rd defendants before proceeding with the counting of the metal ducts.

92. Secondly, even if he had to start counting the metal ducts before all three stacks had been unloaded and delivered over to them, he should have, for the sake of his own well being, at least faced the lorry and the unloading operation and not have his back turned to the unloading operations well knowing that the stacks were heavy and the metal ducts stacked in disorderly fashion such that if something untoward happened with the unloading operation, those stacks were liable to fall and hit him.

93. For these reasons, I have come to the conclusion that the plaintiff cannot be said to be entirely free from blame and was himself at fault for the injuries which he suffered and was thereby contributory negligent.

94. Having said that, when it comes to assessing the degree of the plaintiff’s contributory negligence in the matter, I accept that the plaintiff was put in a very difficult situation due to the combined negligence of his employer as well as that of the 2^nd and 3^rd defendants in the unloading operation.

95. I further take into account the fact that the plaintiff, although contributory negligent, was neither disobeying instructions nor taking any short cut in his work for his own convenience.  It was more a case of inadvertence in taking care of his own safety.

96. In all the circumstances of this case, I find the plaintiff to be 10% contributory negligent.

APPORTIONMENT OF LIABILITY BETWEEN DEFENDANTS

97. Contribution notices have been served by the 1^st defendant upon all the other defendants and by the 2^nd, 3^rd and 4^th defendants jointly upon the 1^st defendant.

98. In apportioning liability between the defendants, I take account that the 4^th defendant’s liability in this case is vicarious, being founded on the negligence of the 2^nd and 3^rd defendants, its servants.

99. In those circumstances, my duty is really to apportion the blameworthiness as between the 1^st defendant’s breach of employer’s duty on the one hand and the negligence of the 2^nd and 3^rd defendants in the unloading operation on the other hand, in so far as those brought about the plaintiff’s injuries.

100. The criteria for apportionment of liability where more than one tortfeasor is involved, as in this case, is consideration of both causation of the accident and blameworthiness for it.

101. On the facts as I have found them, there can be little dispute that the majority of the blameworthiness for the accident lies with the negligent handling of the unloading exercise by the 2^nd and 3^rd defendants.

102. I accept that the 1^st defendant had no direct control over the manner in which the 2^nd and 3^rd defendants went about that unloading exercise.  Their role in the matter stems from the fact that they had failed to properly supervise the way in which the plaintiff went about his work and thereby allowed the plaintiff to be in a position of danger when the unloading operation was carried out.

103. The blameworthiness of the 1^st defendant is therefore comparatively less when compared with that of the 2^nd and 3^rd defendants.

104. A further matter which I also take into account in assessing blameworthiness as between the defendants is the fact that the place where the plaintiff carried out the counting of the metal ducts was not chosen by the plaintiff and his co-workers but happened to be the spot where the 2^nd and 3^rd defendants deposited the 1^st and 2^nd metal racks of metal ducts using the trolley.  This further reduces the blameworthiness of the 1^st defendant.

105. Having assessed the plaintiff to be 10% contributory negligent, the remaining 90% of the defendants’ total liability will be apportioned as follows :

(a)	on the part of the 1st defendant at 20%;
(b)	the 2nd, 3rd and 4th defendants, they will together be liable for the remaining 70%;

Effectively, what that means is that the 2^nd and 3^rd defendants will be 35% liable each since on the facts as found there can be no distinction drawn between the negligence of the 2^nd and the 3^rd defendants.

106. However, the 4^th defendant’s liability is vicarious and is dependent upon the liability of the 2^nd and 3^rd defendants.  In those circumstances the 4^th defendant, will assume the total liability of 70% of the 2^nd and 3^rd defendants.

QUANTUM

(a) Injuries and treatment

107. After the accident, the plaintiff was taken by ambulance to the A & E Department of the Queen Elizabeth Hospital (“QEH”).  Physical examination showed three 2-cm lacerations on upper and middle part of the right shin and a 4-cm deep lacerations over the lower part of the right shin with blood continuously oozing out and tendon being exposed at the wound.  He was admitted into the Department of Orthorpaedics and Traumatology for further management of the wounds.

108. The diagnosis was right leg lacerations with complete cut of right anterior tibial artery, deep peroneal nerve, anterior tibial tendon, extensor hallux longus tendon and extensor digitorum longus tendon.  There was also about 40% cut of the right patella tendon.

109. Emergency operation was performed on the same day under general anaethesia.  Arterial anastomosis, nerve and tendons repair were done.  After the operation, the plaintiff’s right leg was on a long knee hinge brace and he used a pair of elbow crutches to assist walking.

110. He was hospitalized until 12 August 2000.  He complained of numbness over the right lower limb, limited range of motion of right knee and reduced strength of right hip.  He wore an ankle-foot orthosis.

111. On 12 August 2000, he was transferred to Kowloon Hospital for convalescence and was given intensive physiotherapy.  Later he also complained of neck pain and pain over the scapular region.  On 5 September 2000, the right long knee brace was removed and he was discharged home.

112. Thereafter he attended follow up consultation in the out patient clinic of QEH and out patient physiotherapy at Kowloon Hospital until May 2001.  He also received occupational therapy for pressure stocking for his right knee scars.

113. When last seen at QEH in May 2001, the plaintiff still had persistent right lower limb weakness, right knee and ankle pain and still had to walk with elbow crutches.  He had difficulty mounting and descending stairs.  There was limited range of movement in the right knee and ankle and there was mild stretching pain at the end range of movement.

114. In June 2001, he started to receive out patient physiotherapy at Tuen Mun Hospital.

115. A nerve condition test was performed in November 2001and it was reported that only one of the nerves was noted to have satisfactory return of nerve function.  Totally he received 17 sessions of treatment up to December 2001.

116. Since January 2002, he attended out-patient follow-up at Yuen Long Jockey Club Health Centre and Pok Oi Hospital.

117. On 23^rd June 2002, he felt right leg pain and was admitted to Tuen Mun Hospital for one night.

118. On 30 June 2002, he felt right leg pain and dizzy, and was admitted to Tuen Mun Hospital until 3 July 2002 when he was discharged.

119. The plaintiff was granted sick leave until 13 December 2002.

120. The plaintiff was examined by his own orthopaedic expert, Dr Arthur Chiang, in May 2002 whose findings and opinions, contained in his medical report, can be summarized as follows :

(a)	The plaintiff still walked with a cane outdoors.  The right knee was weak and gave way after walking for some 10 minutes.  The whole right lower limb was weak.  The plaintiff could not squat.  There was partial numbness along the surgical scars.  Poor sensation over the right foot dorsum and at the sole of the right foot.  There was marked stiffness in the right big toe.  He has frequent night pain in the lower leg scars.  There was still back pain.
(b)	Physical examination showed mild to moderate weakness in the dorsiflexion of the right ankle and extension of the toes.  Stiffness was noted in the movement of the right toes and in the right ankle movement.  The right knee showed mild limitation in the end range of flexion.
(c)	Decreased endurance with prolonged walking, standing, and repetitive lifting of heavy objects.
(d)	Permanent impairment of the whole person was estimated to be about 7%.  He might not be able to resume the previous driving job.

The defendant’s orthopaedic expert examined the plaintiff in January 2004.  His findings and opinion, contained in his medical report, can be summarized as follows :

(a)	The plaintiff suffered a complete laceration of the right anterior tibial artery, the common perineal nerve, the anterior tibial tendon as well as the extensor hallux longus and extensor digitorum of the right shin.  There was also partial laceration of the patella tendon.
(b)	The plaintiff complained of residual weakness, stiffness and numbness of the right ankle.
(c)	There was an area of decreased sensation of the (right) leg which could be due to incomplete recovery of the peroneal nerve, however, there was no muscle wasting that should accompany significant nerve damage to the anterior tibial compartment and there was no foot drop.  Further medical treatment will not be useful.
(d)	The plaintiff has recovered well from the operation and likely that the use of a stick is not absolutely necessary.
(e)	There will probably be some residual weakness and decreased sensation after laceration of the nerves and muscle in the anterior tibial compartment muscle but does not account for the global weakness of the ankle movement since the muscles of the posterior compartment have probably not been involved.
(f)	He may not be able to work as a strenuous labourer delivering heavy goods but should be able to work as a driver or as a light delivery worker.  Other less heavy jobs should also be appropriate.
(g)	Permanent impairment of the whole person is assessed at 5% using the AMA Guide to Evaluation of Permanent Impairment.

(b) Pain suffering and loss of amenities

121. Given the injuries and treatment to this plaintiff stated above, and the fact that his present disabilities appear likely to be permanent, I am of the view that those injuries suffered by the plaintiff still do not come within the “serious category” of injuries as it is understood in Lee Ting Lam’s case.

122. The plaintiff will, however, be troubled by the residual pain in his right leg for yet a considerable period of time to come, not to mention the stiffness and numbness.

123. In the circumstances, an award of $350,000.00 will be reasonable to compensate him for pain suffering and loss of amenities.

(c) Pre-trial loss of earnings

124. There is no dispute that the pre-accident basic salary of the plaintiff was $9,000.00 per month.

125. It is also not in dispute that he was provided free lunch by his employer on each day that he worked, whether it be catered lunch for all the staff in the office, or reimbursement for lunch taken outside of the office by the plaintiff.  In this respect, I find that the plaintiff was reimbursed for lunch outside the office on average of five days per month with the rest of the month being provided catered lunch in the office of the 1^st defendant.

126. As to the yearly bonus, I find that the plaintiff was badly mistaken in his evidence when he said he was given yearly bonus at Chinese New Year for every year right up to before the accident.  In this respect, I accept the evidence of Mr Lai for the 1^st defendant that no new year bonus was paid to the staff after 1999.

127. Accordingly, I assess the value of the lunch provided by the 1^st defendant to the plaintiff at $450.00 per month.

128. In addition to the basic salary, the plaintiff’s monthly earnings pre-accident comes to $9,450.00.

129. The plaintiff was granted totally 29 months of sick leave by government doctors up to 13 December 2002.

130. There was some suggestion by Dr Lee that the sick leave given after February 2002 was due to the plaintiff’s appeal against the assessment by the Medical Board.  There is no evidence of that although the plaintiff seem to have agreed with that suggestion when it was put to him in cross-examination.  I am not, however, entirely sure that the plaintiff understood that suggestion put to him.

131. In this regard, I accept the submission made by counsel for the plaintiff in his final submission that the sick leave granted to the plaintiff in February 2002 was granted to him before the assessment was made by the Medical Board, and therefore before any appeal by the plaintiff thereto.  Moreover, the certificate of review of assessment was issued on 2 October 2002 but government doctors granted sick leave to the plaintiff up to 13 Decemeber 2002.

132. This shows quite clearly that the sick leave given to the plaintiff up to December 2002 was not because of the appeal by the plaintiff to the assessment by the Medical Board.

133. Accordingly, there will be assessed full loss of earnings for the 29 months that sick leave was granted to the plaintiff.

134. Although I accept the medical opinions of the experts in this case that after the sick leave period, the plaintiff was fit to assume some form of alternative employment of a less heavy nature, it would not be unreasonable that a further six months be given to the plaintiff to secure such alternative employment different from his pre-accident employment.

135. Totally, therefore, full loss of earnings should be assessed at 35 months after the accident which gives $330,750.00.

136. Of the remaining 21 months for the pre-trial period, there will be partial loss of earnings since the plaintiff will no longer be able to resume the kind of heavy delivery work he was engaged in as a driver cum delivery man before the accident.  Even the plaintiff’s own medical expert was of the opinion that the plaintiff will be able to take on some lighter work after his sick leave.

137. As for the amount of the partial loss, I am of the view that the plaintiff will not be able to earn more than $5,000.00 doing some lighter work in the condition that he is in.  I do not accept the 1^st defendant’s suggestion that he will be fit to take on work as a driver.  The weakness, numbness and pain in his right leg makes it unsafe for the plaintiff to take on driving since it will be his right leg which is needed to control the main pedals when driving.

138. In coming to this finding, I have taken into consideration the evidence that the plaintiff is suffering from diabetes mellitus and kidney disease for which he need to administer dialysis to himself three times a day which he can do at home by a form of drip.

139. On the plaintiff’s own evidence, his diabetes and his kidney disease does not hinder him if he were to take on alternative employment.  It is only his disability resulting from the accident which is the greatest hindrance to his obtaining some form of employment.

140. In the absence of clear medical evidence to the contrary, I accept the plaintiff’s evidence that his diabetes and his kidney disease would not be a hindrance to him if he can secure some alternative form of employment even if he had to administer a drip to himself three times a day.

141. On this basis, I find that his partial loss of earnings comes to $4,450.00 per month.  For the remaining 21 months of the pre-trial period it comes to $93,450.00.

142. Total pre-trial loss of earnings comes to $330,750.00 + $93,450 which gives $424,200.00.

143. MPF came into force on 1 December 2001.  The loss of MPF from that date for the pre-trial period comes to 5% of ($9,450.00 x 13 months) + 5% of $93,450.00 which gives $10,815.00.

(d) Future loss of earnings

144. The multiplier of 7 is agreed between the plaintiff and the 1^st defendant.  The other defendants acting in person have understandably made no submission as to quantum generally and in particular the multiplier.  I shall adopt the multiplier of 7 which in my view is an appropriate multiplier given all the circumstances of this case.

145. As for the multiplicand, I shall use the figure of $4,450.00 since there is nothing to suggest that the plaintiff is likely to improve on his present condition in the future.

146. Future loss of earnings is therefore assessed at $4,450.00 x 12 x 7 giving $373,800.00.

147. Following from this assessment for future loss of earnings, his loss of MPF benefit from his loss of future earnings would be 5% of that amount, which comes to $18,690.00.

(e) Loss of earnings capacity

148. It is clear from all the circumstances of this case that the plaintiff will suffer a real and distinct handicap or disadvantage in the labour market due to his disability from this accident should he lose such alternative employment which he may find for any reason.  The resultant disability of the plaintiff arising from the accident is such that it would be apparent to all prospective employer to see with the naked eye since the plaintiff has difficulty using his right leg to walk properly and needs a cane most of the time.

149. The difficulty here, as in most cases, is how to properly assess the amount to be awarded to him for loss of earnings capacity.

150. What I have to do is to assess firstly the degree of risk of the plaintiff losing whatever alternative employment that he may find at a later time.  Secondly, if that risk of losing such alternative employment does materialize, to assess the loss to the plaintiff from such handicap or disadvantage he may have in the labour market due to his disability resulting from this accident.

151. It is all the more difficult to apply those criteria stated above in making an assessment since to date the plaintiff has not yet secured any form of alternative employment as yet.

152. In view of the uncertainties because the plaintiff has not as yet secured any alternative employment, a lump sum assessment would be made.  Looked at in the whole, an assessment of $40,000.00 ought to sufficiently compensate the plaintiff for his claim under this head of damage.

(f) Special damages

153. Under this head, the plaintiff and the 1^st defendant are agreed that $1,137.00 should be awarded as being the outstanding medical expenses incurred by the plaintiff but not as yet reimbursed by the 1^st defendant.

154. In the absence of any submission by the other defendants on this item, that amount agreed between the plaintiff and the 1^st defendant will be assessed and awarded.

155. As for travelling expenses, the 1^st defendant had stopped reimbursing the plaintiff for travelling since mid-2001.  There is a claim by the plaintiff for travelling expenses in the amount of $7,000.00 which includes travelling back to mainland China to receive treatment.

156. In his witness statement which was adopted as his evidence, it is stated that $6,000.00 was spent on travelling.  No other details were given.

157. There is no documentary evidence as to the travelling back to the Mainland to receive treatment.

158. There is also a claim for tonic food in the amount of $5,000.00 by the plaintiff.

159. Once again the evidence is patchy to say the least.  In his witness statement (adopted as his evidence), it simply states that $5,000.00 was spent on tonic food with no other detail given.  Again no receipts were produced.

160. In the quite unsatisfactory state of the evidence for travelling and tonic food, I can do no better than to award the plaintiff totally (for both item) the sum of $5,000.00 being the sum which the 1^st defendant was prepared to offer to the plaintiff for both those items.

161. Accordingly, the sum of $5,000.00 would be awarded for travelling and tonic food and the sum of $1,137.00 for outstanding medical expenses.  The total amount assessed for special damages comes to $6,137.00.

(g) Interests

162. Interests would be awarded at 2% p.a. for general damages for PSLA from the date of Writ.  I make this out to be $13,405.00.

163. For special damages and pre-trial loss of earnings interests would be awarded at 4% (being half judgment rate) from the date of the accident.  I make this out to be $85,289.00.

(h) Summary

CONCLUSION

165. This sub-total amount of $1,322,336.00 will be reduced by 10% to take account of the plaintiff’s contributory negligence.  That will give a final sum of $1,190,102.40.

166. Accordingly, there will be judgment in favour of the plaintiff against all the defendants in the sum of $1,190,102.40.

COSTS

167. There will be a costs order nisi that the defendants do bear the costs of the plaintiff’s claim herein to be taxed if not agreed.

168. The plaintiff’s own costs to be taxed according to Legal Aid Regulations.