LAI KAM WAH v. WING & KWONG CO LTD

HCPI 1131/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1131 OF 2002

___________________________

J U D G M E N T

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1. The plaintiff brings this action for personal injuries sustained by him in the course of his employment with the defendant. Liability is in issue between the parties. The quantum of damages is largely agreed between the parties. The only area of disagreement on the question of quantum is the award for damages for pain, suffering and loss of amenities ("PSLA") and the claim for future psychiatric treatment.

Liability

2. At the time of the accident on 13 December 1999 the plaintiff was employed by the defendant as a steel bender at the construction site of the KCRC 5 Ha Site Topside Development project in Hung Hom, Kowloon. He was 37 years old at the time of the accident on 13 December 1999. He had worked for the defendant for about three years before the accident as a steel bender.

The accident

3. It was the plaintiff's evidence that he reported for duty at about 8:00 am on that day. He was assigned to cut the steel bars at the construction site using a cutting machine which was about 3 feet in height. He was assigned to work with three other co-workers one of whom was Cheung Kam Tong ("Cheung").

4. There is little doubt that the supervisor was Cheung. Although Cheung has made a witness statement, the defendant did not see fit to call him or to call any witnesses at the trial.

5. The plaintiff described that he with Cheung and two other workers were assigned to lift steel bars one by one and put them onto the cutting machine so that the steel bars could be cut into the desired lengths. Cheung was the one in charge of the cutting machine. The steel bars that they were lifting were the Y40 steel bars. Each one was 40 feet long. The weight of the steel bar has been agreed at 119.56 kgs. or 263.04 lbs. Thus it is not surprising that because of the heavy weight of the steel bar four workers were assigned to lift one steel bar at a time and to move it to the cutting machine.

6. The plaintiff said that he had been working all morning before the accident at about 11:45 am on 13 December 1999 lifting steel bars with the other co-workers. He had been standing at the front end of the steel bar. The second worker would stand about 10 feet away with the third worker a distance away and the fourth worker at the other end. The procedure that was employed was the one that the defendant as employer had put in place. The plaintiff did as he had been instructed. The plaintiff would lift the front end of the steel bar. Then the second worker would lift the second section followed by the third worker who would lift the third section and then the fourth worker who would lift the end of the bar. They would then all walk to the cutting machine where the bar was placed into the machine and cut into sections which had been marked on the bar. Cheung was the one in charge of the machine and the plaintiff said that because of this Cheung would not be the one at the front end.

7. The plaintiff said that at about 11:45 am he was at the front end of a steel bar with the other co-workers waiting to lift their sections. As he lifted the front end he suddenly heard a click sound on his back and felt severe pain in his back. He heard the sound before he stood up completely. e heaHe He then put the steel bar down slowly. He told his co-worker about that and that his back was very painful. He sat down and rested for about five minutes before going to the safety section at the construction site informing them that he had been injured. He was told that they were going to lunch and was advised to go to Queen Elizabeth Hospital ("QEH") by taxi for emergency treatment. He then went to QEH where he was treated and discharged.

8. The defendant disputes that the accident occurred in the manner described by the plaintiff. However, the defendant has not called any witnesses to give evidence.

9. The plaintiff was cross-examined about what is stated in the medical report dated 2 November 2001 from the Hospital Authority. It is there stated, inter alia, that :

“ He slipped and fell and landed on buttock while carrying heavy weight."

This, of course, is a different version of events to the one that the plaintiff gave evidence about. He was also cross-examined about what he told the safety officer at the construction site after he returned from hospital. In the Form 2 notice given under the Employees' Compensation Ordinance the following description of the accident is given:

“ The I.P. was cutting steel bars. When they were moving some Y-40 bars, he slipped down and injured."

10. The plaintiff denied that he ever told the doctor at QEH that he slipped and fell landing on his buttock. And he also denied that he ever told anyone at the safety office at the construction site that "he slipped down and injured".

11. I have no hesitation in accepting the plaintiff as an honest witness who gave his evidence truthfully. I believe him. Although the medical report is dated 2 November 2001 it is reasonable to infer that reference must have been made to some medical notes in the file before the report was prepared. It is likely that the attending doctor would have recorded that the plaintiff slipped and fell and landed on his buttock while carrying heavy weight. However, I am unable to attach much weight to that part of the report. There may well have been some misunderstanding in the communication between the doctor and the plaintiff at the time. Doctors are usually kept busy in the emergency ward and usually have to deal with patients with limited time. The plaintiff at the time must also have been in severe pain. The doctor who made the note in the file has not been called to give evidence.

12. The plaintiff also said that at the hospital he was given a medical chit. After his visit to the hospital he went back to the safety section at the construction site and made a report. He also gave them the medical chit. The medical chit may well have contained the information that the plaintiff slipped and fell and it may well be the case that this was merely repeated in the report of the safety section and used in the subsequent preparation of the Form 2. However, the defendant has called no evidence as to who prepared the Form 2 and where the description of the accident as recorded therein came from. The plaintiff has firmly denied that he ever told anyone that he had slipped and fell while lifting the steel bar. I believe him.

13. The plaintiff was also cross-examined about not having mentioned the fact that he had taken a rest for about five minutes after he was injured in any of his statements until he gave evidence. I do not think that the omission of that from his earlier statements and his witness statement is significant. It would be surprising indeed if he did not sit down to rest immediately after he felt severe pain in his back and I am not prepared to find that he made up his story as he was giving evidence.

14. I find that the plaintiff was a truthful and honest witness who has told me the truth about what happened. I find that the plaintiff did injure his back as a result of lifting the front end of the steel bar, that he did hear a click sound on his back and that he did feel severe pain in his back. I find that he injured his back as a result of carrying the front end of the steel bar. I also find that he did put the steel bar down after that and that he went to the hospital for treatment. I find that he did not tell the doctor that he slipped and fell and landed on his buttock while carrying heavy object. I also find that he did not tell anyone at the safety section at the construction site that he slipped and fell. I believe the plaintiff's version of events as to how he injured his back.

Was there negligence?

15. It then becomes necessary to consider whether there was negligence on the part of the defendant. The defendant as the employer owes the plaintiff a common law duty to, inter alia, prescribe a safe system of work. This is not disputed. The duty is, of course, not absolute but to take reasonable care for the safety of the employer's workmen. The test is what is reasonable and proper to be done for the safety of the workmen in the circumstances of the particular case (Winter v. Cardiff Rural District Council [1950] All E R 819 at page 823E to G). Each case, of course, depends on its own facts.

16. The plaintiff's case is that the defendant as the employer failed to provide the plaintiff with a safe system of work. It is said that the defendant failed to provide a safe means of lifting steel bars.

17. The point was made by Mr. Au Yeung, counsel for the defendant, that the system of work adopted by the defendant in the lifting of the steel bars was a common practice in the construction industry. The plaintiff accepted that the method that he described of lifting the steel rod was common in the construction sites that he had worked on.

18. In Chung Pun v. Hsin Chong Construction Co. Ltd & Ors [1986] HKC 454 Huggins VP (as he then was) said :

“ It is, of course, not to be assumed that every common practice is proper (Cavanagh v. Ulster Weaving Co Ltd [1960]AC 145), but a court should be slow to condemn a practice which has received widespread acceptance in an industry, provided always that it is not manifestly unsafe and has been accepted only because it is profitable."

19. Mr. Wong, counsel for the plaintiff, submitted that lifting the front end of the steel bar requires more strength than lifting the other sections. The person at the front end would be the first to lift the bar at the front end followed by the second person lifting the second section of the bar followed by the third person lifting the third section and the fourth person lifting the end of the bar. It seems to me that the person lifting the bar at the front end has a more difficult task than the others lifting the other sections. By the time the fourth person lifts the end of the bar three other workers would have already lifted their sections. The remaining weight of the bar at the end section would be considerably less than the weight of the bar when the first person at the front end lifts the front section. I accept Mr. Wong's submission that the lifting of the front end of the steel bar requires more strength than lifting the other sections. Although there is no evidence as to what weight the person at the front end would be carrying when lifting the front end, it seems to me that the weight that was being carried when lifting the front end would be much more than a quarter of the weight of the whole steel bar. The steel bar weighed 263.04 lbs. A quarter of that is slightly over 65 lbs. The plaintiff would have been carrying more weight than that at the front end although there is no evidence as to what that weight would have been.

20. Mr. Wong submitted that the system of work adopted by the employer was dangerous in that only one worker was assigned to lift the front end. As that was the section of the steel rod which required more strength to lift he submitted that a safe system would have been to provide two workers to lift the front end so as to lessen the weight to be carried by each of them. Then the third worker could lift the second section and the fourth worker could lift the third section. After those three sections had been lifted one of the workers at the front end could move to the end of the bar to lift the end of the bar. That way the weight of the bar would have been distributed among the workers lifting the different sections and the employer would still only be using a total of four workers to lift the steel bar and to move the same to the cutting machine for cutting. This would seem to me to be a sensible alternative way of lifting the steel bar which would also be a safer one than the system that was employed although this method may require some additional time than the system that was employed.

21. Mr. Wong submitted that there was another alternative and also safer way of lifting the steel bars. This was for the employer to have a system whereby the steel bars were placed on a rack at about two to three feet above the floor level. There should be some space between the bars so that workers could put their fingers under the bars to lift the same. Four workers could simultaneously lift the bar from the rack at the same time thereby distributing the weight to be lifted by each worker.

22. In Lai Wah Wai v. Castco Testing Centre Ltd. [1996] 2 HKC 44 the plaintiff was employed at a construction site and was responsible for cleaning and preparing the moulds into which concrete mix was poured. The plaintiff was injured in the course of lifting a mould with a concrete block. At the time of the accident the moulds with concrete weighed at least 21 to 24 kgs. The posture used by the plaintiff in lifting the moulds was one where the safety limit was about 20 kgs. It was held that negligence had been established against the defendant. The moulds provided by the defendant were simply too heavy to be lifted by the plaintiff. The defendant had not prohibited the workers from lifting the moulds with the concrete. As to the duty of care, Cheung J (as he then was) said at page 48 :

"	Duty of care
	(i)	The standard of an employer's duty towards his employee is to see that reasonable care is taken; the scope of that duty extends to the provision of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work (Wilsons and Clyde Coal Co Ltd v. English [1938]AC 57). A system of work is the term used to describe:
	(ii)	the organization of the work;
	(iii)	the way in which it is intended the work shall be carried out;
	(iv)	the giving of adequate instructions (especially to inexperienced workers);
	(v)	the sequence of events;
	(vi)	the taking of precautions for the safety of the workers and at what stages;
	(vii)	the number of such persons required to do the job;
	(viii)	the part to be taken by each of the various persons employed; and
	(ix)	the moment at which they shall perform their respective tasks.

(Paragraph 10-59 Charlesworth & Percy on Negligence (8th Edn)."

23. I accept Mr. Wong's submissions. It seems to me that the system employed by the defendant was not a reasonably safe system. The defendant failed to provide a reasonably safe system by requiring the plaintiff to lift the front end of the steel bar on his own. When he lifted the front end of the steel bar the weight that he was lifting was considerably more than a quarter of the weight of the steel bar. A quarter of the weight of the bar was about 65 lbs. It seems to me that the defendant was negligent in failing to provide a safe system of work. The defendant should have put in place an alternative and safer system of work. I accept Mr. Wong's submission that either of the two alternatives would have been a reasonably safe system. Although the system that the defendant adopted was a common practice in the construction industry in Hong Kong that did not make it a safe system. It was in my judgment manifestly unsafe to require one worker to lift the front end of the steel bar.

24. I find that the plaintiff has established negligence on the part of the defendant by failing to provide a system of work. Because the plaintiff was required to lift the front end of the steel bar which was a heavy load for him to carry on his own without assistance he sustained the injuries to his back.

Contributory Negligence

25. The defendant also alleges that there was contributory negligence on the part of the plaintiff. I fail to see how it can seriously be suggested that the plaintiff was guilty of any contributory negligence. He was doing no more than following the system of work that the defendant as his employer had put in place. He was simply doing what he had been instructed to do. In the circumstances I reject any suggestion that the plaintiff is guilty of any contributory negligence.

26. I find that the plaintiff has established negligence on the part of the defendant and that there is no contributory negligence on the part of the plaintiff. The defendant is liable for the injuries sustained by the plaintiff.

The injuries

27. When the plaintiff was examined at QEH where he went for emergency treatment the x-ray of the lumbo-sacral spine showed no fracture. There was tenderness and muscle spasm over the lower lumbar spine. The clinical diagnosis was low back strain. He was treated and discharged on the same day 13 December 1999.

28. The MRI scan examination of the lumbar spine done on 18 December 1999 showed a small annular tear in the L5/S1 disc. There was also an old injury at T11/T12 level but this is of no relevance to the quantum of damages.

29. The plaintiff was referred to the Department of Orthopaedics and Traumatology at Tuen Mun Hospital on 14 January 2000 where he received conservative treatment. He continued to suffer from persistent back pain and disability in the lower limbs.

30. He was referred for physiotherapy at Tuen Muen Hospital for low back pain with bilateral sciatica and prolapsed intervertebral disc at L5/S1 level on 14 January 2000. The second referral was made on 9 June 2000 for persistent back pain and mild prolapsed intervertebral disc at L5/S1 level. The third referral was made on 22 January 2001 for small annular tear at L5/S1 level. The fourth referral was made on 9 October 2001 for backache. He received a total of 38 sessions of physiotherapy treatment.

31. The plaintiff was also referred to the Clinical Psychology Service of Tuen Muen Hospital for pain management. He was first seen on 17 November 2000. He complained of radiating pain from his back pain down to his leg. Pain was persistent and limited his mobility. He was very anxious and preoccupied with the fear of "incurability" of his condition and losing his job. He felt shameful for receiving financial support from the government. He also felt shameful for walking more slowly than the elderly did. He suffered from depressed mood with suicidal thought and a strong sense of worthlessness was reported. His temper deteriorated and he scolded his children and threw things around.

32. The clinical psychologist was of the opinion that the plaintiff had limited understanding of the pain condition, the rehabilitation and the medico-legal issues. This caused excessive worries and fears resulting in depressed and anxious mood. The family was discouraged and mutually reinforced the negative cycle. Apparently, the pain condition was intensified under the high stress and rehabilitation was hindered.

33. He also suffered from insomnia. In April 2001, he was referred to receive treatment from the Psychiatry Department of the Tuen Muen Hospital. Sleep was improved after medication but he still continued to worry about the future and was easily stressed about the legal proceedings. The progress in mobility was still limited.

34. He was granted a total of two years sick leave from 13 December 1999 to 7 December 2001.

35. Dr. Richard Lau Man Tsang a specialist in Orthopaedics and Traumatology was jointly appointed by the parties. He examined the plaintiff on 19 March 2002. His findings and comments are contained in his report dated 23 March 2002. Dr. Lau commented that the plaintiff had complained of a lot of pain during the interview but the physical examination failed to detect any objective signs. There were also some inappropriate physical signs observed. They included inconsistent results of the nerve stretching tests in various postures, back pain on resisted lower limb movement, loss of sensations in a non-anatomical pattern and extensive areas of tenderness on his back. All the above suggested, in the opinion of Dr. Lau, that the sufferings had been amplified, perhaps by the psychiatric complication. He was of the view that the plaintiff's orthopaedic condition had reached the state of maximal medical improvement and no further change was expected. He also said that the plaintiff probably needed more sessions of psychiatric treatment.

36. Dr. Peter Ho Pang Nin, a psychiatrist was also jointly appointed by the parties. He examined the plaintiff on 9 and 15 January 2003. His findings and comments are contained in his report dated 15 January 2003. The mental examination showed that his mood was mildly depressed and that he had a low self-esteem. He felt that he was a burden on his family and that he was still depressed although overall his mood was better than before. He was worried about his social difficulties and his future. He no longer had suicidal ideas. He had complaints of headache and hotness of the head, inability to sleep well, pain despite treatment, vague chest discomfort and hand tremor at times. On testing of his cognitive functions, his performance was overall unsatisfactory.

37. Dr. Ho was of the opinion that the plaintiff had been suffering from an adjustment disorder with some symptoms of anxiety and depression that was related to the physical consequences of the accident. He was of the opinion that pain in general could be aggravated by psychological factors and that there might be a possible psychological element of the pain that the plaintiff suffered because of his anxiety and depression. The two could interact in a negative spiral with aggravation of the physical and psychological symptoms. He was also of the view that the plaintiff might benefit from attending further psychiatric treatment on a regular basis for at least two years.

38. Professor Peter W. H. Lee, a consultant clinical psychologist was also jointly appointed by the parties. He assessed the plaintiff on 6 and 16 January 2003. His findings and comments are contained in his report dated 20 January 2003.

39. The plaintiff was reported to be a usually cheerful and happy person before the accident. He used to be somewhat introverted with few friends and no really close friends. He was used to working long hours. After work he used to go home, sleep and rest. He did not use to socialize much with others. He enjoyed going to tea and window shopping with his wife and children during breaks from work. He used to always have a mild and placid temperament. He was very unhappy after his injury and became increasingly worried about his pains. He kept asking himself why his pain should not improve despite seeing so many doctors. He had thought of taking his own life. He had nearly jumped off into the sea as he was walking along the waterfront. The plaintiff told Professor Lee that the worst time was for at least one year after the injury.

40. After administering psychological tests Professor Lee was of the opinion that shortly after the accident the plaintiff was confused about the back pain and injury. He gradually developed various psychological and emotional difficulties which were not fully resolved even in January 2003. He developed a full blown depressive condition with characteristic symptoms of agitation, irritability, sleeping problems, depressed mood, feeling of worthlessness, and he even had suicidal ideas. His depressed mood lasted probably for the greater part of the first year after the injury. His agitation and depressed mood was much relieved after he had received psychological counseling at hospital. His unresolved pain problems had been aggravated by his ignorance and maladaptive responses to the pain itself and he had become highly sensitive to any sensation of pain and malaise, even of a mild intensity. Professor Lee found that the plaintiff had not in any way exaggerated or falsified his problems and difficulties.

41. Professor Lee concluded that the plaintiff's condition and presentation was compatible with the DSM-IV diagnosis of "psychological factors affecting medical condition". He was of the opinion that further psychiatric inputs were probably redundant and unnecessary. Instead he recommended a course of 12 sessions of additional psychological therapy aimed towards :

(i)	helping to physically mobilize him more effectively in his daily life;
(ii)	reducing his fears and hyper-sensitivity towards pain sensations and the prospect of re-injury;
(iii)	dealing with his depressive mood;
(iv)	helping him regain some of his previous confidence and to test out the actual limits of his pain-activity barrier due to his back condition.

PSLA

42. I was referred to Tsoi Kwong Ming v. Green Valley Landfill Limited (Personal Injuries Action No. 407 of 1997, Deputy Judge Woolley, 30 September, 1999), Li Fat Tsang v. Aquality Engineering Co. Ltd. (Personal Injuries Action No. 558 of 2000, V. Bokhary J., 15 July 2002), Shek Kam Ching v. Po Kee Construction Engineering Limited & others (Personal Injuries Action No. 434 of 2001, Deputy Judge To, 28 November, 2002).

43. I have considered the above authorities. Each case does, of course, depend on its own facts. I am of the view that the injuries to the plaintiff were below the serious injury category. The plaintiff's condition was, however, aggravated by the psychological and emotional difficulties. I have considered and taken into account all the medical reports. I have also considered counsel's submissions. I am of the view that a reasonable and proper award for PSLA to the plaintiff is the sum of $350,000. That is the amount I award for PSLA.

Accrued loss of earnings

44. In 1999 the plaintiff earned a daily wage of $1,200 as a steel bender at the construction site. He then worked on average 26 days per month.

45. It is agreed that the median pre-trial average working days of the plaintiff per month before trial was 25 and the daily median rate was $1,125. The average pre-trial monthly earnings were $28,125 ($1,125 x 25).

46. The award for pre-trial loss of earnings is, therefore, agreed as follows:

For the period from 13 December 1999 to 7 December 2001 (sick leave period of 24 months), the sum of $675,000 ($1,125 x 25 x 24 months);

For the period from 8 December 2001 to 2 July 2003 (18 months). It is agreed that the plaintiff could have taken lighter employment after the sick leave period earning $7,680 per month. The award for this period is $368,010 ($28,125 - $7680 x 18).

For the period from 3 July 2003 to end November 2003 (5 months). It is accepted that the plaintiff has worked on a barge earning $10,500 per month from 3 July 2003. The award for this period is $88,125 ($28,125 -$10,500 x 5).

47. The total award for pre-trial loss of earnings is, therefore, $1,131,135.

Accrued loss of MPF benefit

48. The plaintiff would have received Mandatory Provident Fund benefit since 1 December 2000 but for the accident. This is agreed at the daily rate of $30. From 1 December 2000 to end November 2003 the award under this head comes to $27,000 ($30 x 25 days x 36 months).

Future loss of earnings

49. A post-trial multiplier of 12 is agreed. The notional daily rate of a steel bender is also agreed at $980 and the average number of working days per month is agreed at 24. The total award for loss of future earnings is $1,874,880 ($980 x 24 days - $10,500 x 12 months x 12 years).

Future loss of MPF benefit

50. The award under this head is $103,680 ($30 x 24 days x 12 months x 12 years).

Loss of earning capacity

51. This is agreed at $100,000.

Special damages

52. The sum of $19,152.80 is agreed for medical, traveling and tonic food expenses.

Future medical expenses

53. The sum of $18,000 is agreed for future psychological treatment.

54. However, the cost of future psychiatric treatment is disputed. The plaintiff claims the sum of $48,000 for psychiatric treatment for two years at $2,000 per session. This is the recommendation of Dr. Peter Ho. However, Professor Lee was of the opinion that further psychiatric inputs were probably redundant and unnecessary. In the medical report of Dr. Kan Chung Sing of Castle Peak Hospital dated 27 August 2003 it is stated, inter alia, that :

“ When he was last seen on 19 August 2003, he stopped drug treatment by self for one month. He spoke coherently and relevantly. He was not depressed. There was no suicidal ideas or depressive features detected. He reported good sleep and appetite. He was arranged to follow-up again if he felt mentally unstable in the future. No medication was given."

55. He was of the further view that his depressive episode was in remission and that there was no permanent psychiatric impairment as a result of the injury on 13 December 1999.

56. As he was last seen on 19 August 2003 which was later in time than when Dr. Ho saw him, it seems to me that considerable weight ought to be given to the opinion of Dr Kan. I am not satisfied that any award ought to be made for future psychiatric treatment. The total award for future medical expenses is $18,000.

Employees' Compensation award

57. It is agreed that the sum of $807,777.50 paid to the plaintiff on 17 February 2003 for employees' compensation ought to be deducted from the award for damages.

Interest

58. This is agreed at 2% for PSLA from date of issue of writ on 11 December 2002 and at 4% for special damages (accrued loss of earnings, MPF benefit, medical, traveling and tonic food expenses but minus the employees' compensation award) from date of accident on 13 December 1999 to end November 2003.

Conclusion

59. The sums awarded are as follows :

(a)	PSLA	$350,000.00
(b)	Accured loss of earning	$1,131,135.00
(c)	Accrued loss of MPF benefit	$27,000.00
(d)	Future loss of earnings	$1,874,880.00
(e)	Future loss of MPF benefit	$103,680.00
(f)	Loss of earning capacity	$100,000.00
(g)	Special damages	$19,151.80
(h)	Future Medical expenses	$18,000.00
(i)	Interest on PSLA at 2% per annum from 11 December 2003 to 28 November 2003, say 1 year ($350,000 x 2% x 1)	7,000.00
(j)	Interest on items (b), (c) and (g) less employees' compensation award of $807,777.50 from 13 December 1999 to 28 November 2003, say 4 years ($369,509.30 x 4% x 4)	$59,121.50
	Sub-total	$3,689,968.30
	Less Employees' Compensation award	$807,777.50
	Total	$2,882,190.80

60. I give judgment to the plaintiff against the defendant for damages and interest in the total sum of $2,882,190.80.

61. I also make an order nisi for costs in the plaintiff's favour against the defendant. The plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.

62. Finally, I would like to thank Counsel for all of their assistance.