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HCPI 296/2002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 296 OF 2002
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BETWEEN
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CHU KWONG SANG |
Plaintiff |
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and |
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CHUEN WO TRANSPORTATION LTD |
1st Defendant |
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KAM MING NO.28 TRANSPORTATION LTD |
2nd Defendant |
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LEUNG CHI PING |
3rd Defendant |
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Before : Deputy High Court Judge Fung in Court
Dates of Hearing : 16-18 November 2004
Date of Handing Down Judgment : 22 December 2004
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J U D G M E N T
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1. The plaintiff is claiming damages for personal injuries sustained at work. The trial covers both liability and quantum.
LIABILITY
Background
2. The 1st defendant operated a container handling service at the Stonecutters Island Public Cargo Handling Areas. The plaintiff was employed by the 1st defendant as a “slinger” (i.e. a worker who hooks and unhooks steel hoisting cables of the crane to the containers). The 2nd defendant is the owner of “Kam Ming 28”, a barge with a derrick crane on board. The 1st defendant sub-contracted to the 2nd defendant the lifting of containers from the cargo ships to the wharf. The 3rd defendant is a director and employee of the 2nd defendant and the operator of the crane on board Kam Ming 28. The plaintiff alleged that he was injured by the negligent operation for the crane by the 3rd defendant, for which the 2nd defendant is vicariously liable.
3. At the commencement of the trial, the action between the plaintiff and the 1st defendant was settled as to liability and quantum. The 1st defendant took part in the trial for the purpose of the contribution notices against the 2nd and 3rd defendants and vice versa.
4. The 2nd defendant was absent at the trial. The 2nd and 3rd defendants were legally represented when the case came on for trial in April 2004. At the earlier occasion, the representative of the 2nd defendant dismissed the lawyers. The trial was adjourned for the 2nd defendant to seek leave to act in person, but apparently none had been granted. The 3rd defendant said the representative of the 2nd defendant was aware of the adjourned trial date. I am satisfied that there is no prejudice to proceed in the absence of the 2nd defendant.
The plaintiff’s case
5. On 3 September 2000, the plaintiff was deployed by the 1st defendant to unhook the steel hoisting cables of the derrick crane from the top of the unloaded containers.
6. The unloading operation was as follows : The barge was berthed alongside the wharf. The cargo ship was berthed on the outside of the barge. The containers were 40 feet long, 8 feet wide and 9 feet high. The containers were lifted from the cargo ship by the crane on board the barge to the dockside. The hoisting cable of the crane was attached to a yoke, from which ran four cables of 30 feet long, 1.5 to 2.5 cm in diameter, with hooks of 6.5 inches by 4.5 inches at the end. The four hooks would be attached to the four corners on top of the container to be lifted.
7. The crane was operated by the 3rd defendant from the control room on the level four deck of the barge. Two slingers of the 2nd defendant were tasked with attaching the four hooks to the container on the cargo ship. The 3rd defendant then lift up the container, and swing the jib of the crane to the dockside, and lower the container onto the ground.
8. On the dockside, the plaintiff was responsible for detaching the hooks from the unloaded container. At the locus in quo, there were already two empty containers on the dockside. They were placed with their lengths side by side each other. Viewing the wharf with the cargo ship and barge on the left, the two empty containers on the dockside were on the right. The 3rd defendant swung the jib from the left to right, and he lowered the unloaded container to the right of the two empty containers. The plaintiff got on top of the unloaded container, detached the four hooks, and placed the four hooks and the loose cables on top of the unloaded container. He gave hand signal to the 3rd defendant to retract the cables and hooks. He then moved to and stood at one end on top of the middle container. As the jib of the crane swung back towards the barge, the cables and hooks were dragged across the top of the middle and left containers. Unfortunately, one of the hooks got into the gap between the middle and the left containers. As the cables were further retracted, the hook got anchored on to the right upper side rail of the left container next to the plaintiff, and the left container was lifted up at a tilt. The three loose cables and hooks were swinging haphazardly in the air. The plaintiff immediately gave hand signal and shouted to the 3rd defendant. The 3rd defendant was not looking at the plaintiff but was looking the other way. When the left container was lifted to four feet above the ground, the 3rd defendant began to realize it. The cables were released in one go and they descended at great speed. The four cables and hooks were swinging all over the place. One of the hooks was swinging towards the plaintiff’s face. In order to avoid the hook, the plaintiff jumped off the top of the container. He landed with his left foot first and hurt his left heel. He could not get up, and was taken to Prince Margaret Hospital (“PMH”).
9. The plaintiff said he had seen other slingers on the wharf being provided with scaffold ladder as work platform to access the top of the containers. He was not provided with any work platform and he had to use the adjacent container as a makeshift work platform. He had to climb up and down the container along its door hasps and fastener rods. The plaintiff said if he had been provided with a scaffold ladder, he could have dodged under the opening for the ladder on the platform and climbed down or at any rate held on to the ladder.
10. The plaintiff said he could not wear heavy protective shoes but had to wear light canvass shoes because otherwise he could not climb up and down along the doors of the container.
11. The plaintiff also relied on the Accident Report dated 12 December 2000 by Chua Kwok Yeung, Michael, Safety Officer of the Labour Department. Mr Chua expressed the opinion that “there was no proper means of access provided for I/P to get on or off the working platform” and “if the derrick was lifted up to a height over the container top before retreating, the mis-hooking of the container could be prevented”.
The defence case
12. The 3rd defendant was the only witness. He did not dispute that one of the hooks of the hoisting cables did catch onto the top of a container, but apart from this, the details were much different from the plaintiff’s version.
13. The 3rd defendant said the middle container where the plaintiff was standing was not empty but loaded. He placed the middle container there a few days ago and he knew it was heavy. The plaintiff was the slinger on both occasions, and it was the plaintiff’s fault in signalling which resulted in the wide gaps between the containers.
14. After the plaintiff detached the hooks from the right container, the plaintiff gave him hand signal to retract the loose cables, and the plaintiff moved to the middle container. He never swung the jib of the crane but only retracted the cables. He suggested the jib might have moved due to the sway of the waves. As the loose cables swept across the top of the right container, one of the hooks got into the gap between the right and the middle container and caught the right upper side rail of the middle container. However, the middle container was not lifted up as it was heavy. The three loose cables did swing in the air but not to any great extent, and the plaintiff was not affected by the swing at all and did not give any signal. Once he released the cables, they stopped swinging. He saw the plaintiff climb down the middle container instead of jumping down but he did not see how the plaintiff land as his view was blocked by the container. Later the plaintiff told him that as he was climbing down, he stepped on a piece of wood and twisted his ankle. The 3rd defendant blamed the plaintiff for wearing light canvass shoes and not heavy protective shoes.
15. The 3rd defendant said if the 1st defendant had deployed another slinger to detach the hooks together with the plaintiff, each of them could hold onto two cables as they were retracting, and only to let go after the hooks were above the top of container. As such, the dragging and anchoring of the hooks could be avoided.
Assessment of the evidence
16. The plaintiff’s case against the 3rd defendant is that the hook slid into the gap between the left and middle containers and anchored at the right upper side rail of the left container because the 3rd defendant moved the jib of the crane away from the right container before he had retracted the loose cables far enough until the hooks were above the plaintiff’s height so that any swinging motion of the hooks would not have interfered with the plaintiff.
17. At the outset, I wish to say that the opinion of the Accident Report of the Labour Department was based on the finding of facts by the Safety Officer after hearing the relevant parties. Insofar as any finding of facts is concerned, I shall resolve the matter upon the evidence before me.
18. I reject the allegation that the plaintiff had told the 3rd defendant that he twisted his ankle by stepping on a piece of wood. The medical report of the Accident and Emergency Department of PMH clearly stated that the plaintiff complained that he sprained his left ankle and foot after he jumped from top of container at work. X-ray showed left calcaneal (heel) fracture with multiple fragments. It is inconceivable that the plaintiff said he twisted his ankle by stepping on a piece of wood.
19. I reject the 3rd defendant’s allegation that he never moved the jib of the crane. It is common ground that the right container had to be lowered perpendicularly, hence, the jib was above the right container after the unloading. It is also common ground that the hooks and the loose cables swept from right to left across the top of the containers. If so, the jib could not have remained above the right container by reason of the law of gravity. It must have moved from right to left. The 3rd defendant raised for the first time at trial that any movement of the jib could have been caused by the sway of the waves. The Accident Report issued in December 2000 expressed an opinion that the accident was been caused by the retraction of the jib before the loose cables and hooks were lifted high enough. For whatever the Report was worth, there was no counter-allegation at any earlier stage that the movement of the jib was caused by the sway of the waves. I find that the 3rd defendant did swing the jib from right to left towards the barge as he was retracting the loose cables and hooks.
20. As to the leaving of the gap between the containers, the plaintiff said he was not the slinger when the left and middle containers were placed on the earlier occasion. I accept his evidence. At any rate, taking into account the nature of the operation as well as the size of the containers, in that the crane operator takes the main role and the slinger as signalman is only the assistant, any relevant slinger cannot be blamed for the gap between the containers.
21. I accept the plaintiff’s evidence and I find that the hook slid into the gap between the left and middle containers as opposed to the middle and right containers, and the hook caught the left container as opposed to the middle container. Hence, the 3rd defendant’s claim that the middle container was loaded is irrelevant.
22. The 3rd defendant also queried the possibility of lifting the left container four feet above the ground. He accepted that theoretically, an empty container could be lifted with only one hook securely anchored, but he postulated that even assuming the left container were caught by the hook, as the container was lifted, the angle of tilt would increase to such a point that the hook would come loose of the upper side rail. Mr Wright, counsel for the 1st defendant, suggested that if the jib were moving from right to left, the anchorage at the right upper side rail would be more secure. I find that the left container was actually lifted up above ground before it was dropped.
23. The 3rd defendant agreed that the dragging of the loose cables across the neighbouring container and the catching of the hook on the upper side rail was rare but possible. He said if that happened, the slinger would give him a signal to release the cables. He agreed there would be some danger for the slinger to remain on the neighbouring container, but if the slinger thought it was dangerous, then he could leave. He said he started to retract the loose cables notwithstanding there might be some danger to the slinger because the plaintiff had given him signal to do so, and the plaintiff could have given him signal to stop. If that is the case, the 3rd defendant is in effect agreeing that his sight should follow the loose cables and hooks.
24. As to the issues of safety vest and safety belt raised in the 3rd defendant’s Defence, I do not see its relevance having regard to the nature of the operation.
25. What is in dispute is whether as the 3rd defendant said, he saw the loose cables and hooks swing, but the plaintiff was not affected at all and made no hand signal and the plaintiff climbed down as usual, or as the plaintiff said, he shouted and made hand signal, but the 3rd defendant was looking elsewhere. Quite obviously, the inherent probabilities lie with the plaintiff.
26. In the premises, I find the 3rd defendant had operated the derrick crane negligently, in that he swung the jib before the loose cables and hooks were sufficiently above the top of container, and he failed to keep an eye on the loose cables and hooks in order to ensure the safety of the neighbouring slinger. I also find the 2nd defendant vicariously liable for the 3rd defendant.
Apportionment
27. Under section 3(1) of the Civil Liability (Contribution) Ordinance, Cap.377 :
“Subject to the following provisions of this section, any person liable in respect of any damage suffered by another may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).”
and under section 4(1) :
“(1) Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.”
28. Mr Wright submitted that the relevant consideration for apportionment for contributory negligence is applicable to apportionment for contribution and indemnity. According to Davies v. Swan Motor Co. [1949] 2 KB 291, per Lord Denning at 326 :
“Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be ‘just and equitable’, having regard to the claimant’s share in the responsibility for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.”
I agree that I am concerned with causative potency and blameworthiness in respect of the damage suffered by the plaintiff.
29. The plaintiff’s case against the 1st defendant lies mainly in the failure to provide and maintain a safe system of work, failure to provide adequate supervision, and a safe working platform. Occupier’s liability is also pleaded.
30. Mr Wright submitted that the cause of the accident was the negligent operation of the crane by the 3rd defendant as to which the 2nd defendant is vicariously liable. The 1st defendant was only liable on the basis of the residual non-delegatable duty of supervision. The 1st defendant had little or no control over the crane. Practically speaking, there is little the 1st defendant could have done to avoid the accident.
31. Mr Wright submitted that the 1st defendant contracted with the 2nd defendant by monthly hire for the use of the crane with the operator. The 3rd defendant had 30 years experience with operating the crane. The plaintiff had worked with the 3rd defendant elsewhere before. The 1st defendant relied on the expertise of the 3rd defendant.
32. Mr Wright submitted that the middle container was a safe work platform but for the negligence operation of the crane by the 3rd defendant. The provision of any suitable ladder was irrelevant because in the circumstances, the plaintiff would not have time to climb down. To dash down any “manhole” on the scaffold ladder would have caused even more serious injuries.
33. The 3rd defendant’s complaint against the 1st defendant was mainly that the 1st defendant should have deployed two slingers instead of one. Frankly, I fail to see how two slingers would have made any difference. I do not see any point in the suggestion that the two slingers should have held on to the loose cables and hooks as they were retracted. I do not consider it safe to do so.
34. Perhaps better means of communication between the plaintiff and the 3rd defendant might have improved the effectiveness of signalling. But the blameworthiness on this matter cancels out as between the 1st defendant and the 2nd and 3rd defendants.
35. I hold that the failure to provide any suitable work platform with means of access and retreat to and from the top of the unloaded container is relevant :
(1) The door hasps and fastener rods of the doors of the container are not made or adapted for climbing. The provision of a proper ladder will no doubt increase accessibility.
(2) Even if the plaintiff could not take full advantage of the ladder, he could still hold onto the rung to reduce the risk of injury from fall.
(3) The plaintiff could have worn protective shoes if proper ladder were provided, and that would reduce the risk of injury to the heel.
36. The 1st defendant as employer of the plaintiff and occupier of the dockside should bear the responsibility for failure to provide the suitable work platform.
37. In the premises, I consider it just and equitable to apportion the liability as 40% on the part of the plaintiff and 60% on the part of the 2nd and 3rd defendants.
Quantum
38. The plaintiff was born on 4 September 1962. He was 37 at the time of the accident and 42 now.
39. The Medical Reports of PMH dated 11 October and 9 November 2001 stated that plaintiff suffered from left calcaneal (heel) fracture with multiple fragments and displacement. Open reduction, internal fixation and bone grafting were performed on 7 September 2000. The post operative course was uneventful. Healing of the fracture was satisfactory. Sick leave was given for 14⅓ months from 3 September 2000 to 14 November 2001. The Psychiatric Report of Tai Po Hospital dated 9 October 2002 stated that the plaintiff suffered from depressive disorder precipitated by stress of the injury and compensation. The symptoms were insomnia, depressed mood, poor appetite, persecutory ideas and increased irritability.
40. The plaintiff still complains of left heel pain on prolong sitting over 20 to 30 minutes; standing over four to five minutes; tiptoeing; walking up and down stairs and on uneven surface; pain at back of heel on prolonged walking; forefoot pain and numbness after walking for 10 minutes. The pain is of grade 8 out of 10. He needs to use stick for going out.
41. The plaintiff was jointly examined by two orthopaedic specialists, Dr Chung Siu Yeung, instructed by the solicitors and Dr Danny Choi, instructed by the solicitors for the 1st defendant on 6 September 2002. Both doctors noted persistent pain and restriction in ankle and heel movement. Both agreed that the plaintiff could not return to his pre-accident job but could resume jobs with not much walking, such as car park or petrol station attendant. The range of impairment of the whole person is 5 to 6%. Dr Chung also recommended further surgical removal of implants to reduce irritation and discomfort.
42. The psychiatric report of Dr Chung dated 4 November 2002 stated that the plaintiff suffered from mild adjustment disorder with depressed mood, caused by the trauma and resultant physical problem. The degree of permanent impairment to the whole person is 3%.
Pain and suffering and loss of amenities (PSLA)
43. Ms Leong, counsel for the plaintiff submitted that the plaintiff’s injury falls at the bottom end of serious injury category as per Lee Ting Lam v. Leung Kam Ming & anor [1980] HKLR 657, i.e. where the injury leaves a disability which mars the general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.
44. Ms Leong referred to a number of awards and submitted that PSLA should be in the region of $440,000. The 1st defendant suggested that the award for PSLA is in the region of $175,000, and the 2nd and 3rd defendants suggested $150,000 to $175,000.
45. In Siu Wai Man Ada v. Lee Chi Chong & anor. HCPI No.174 of 1994 per Master Chung (as he then was) (judgment dated 9 November 1998), the plaintiff suffered bimolleolar facture of left ankle. She had three operations : internal fixation of wires; removal of wire and removal of a loose body in her ankle. Her ankle felt grinding on movement, and she felt aches and tiredness after walking and/or standing for an hour. PSLA was awarded at $400,000.
46. Lau Man Nin v. Man Hau Tak, HCPI No.1183 of 1995 (judgment dated 15 April 1997) was referred to in Siu Wai Man Ada. The plaintiff suffered face laceration and Pott’s fracture of his left ankle. It was repaired by open reduction and internal fixation. He was discharged from hospital after two weeks and was granted sick leave for six months in total and he received physiotherapy during sick leave. Two years afterwards, the internal fixation was removed and he was hospitalized for another month. His physical activity level was reduced with significant weight gain and he might have difficulty in meeting the fitness requirement as his work as an ambulanceman. $291,500 was awarded as PSLA ($320,000 in 1997 value).
47. In Lau Kin Wah v. Lam Shu Kan HCPI No.1208 of 1998 per Seagroatt J (judgment dated 28 February 2000), the plaintiff suffered a fracture of the right calcaneus (heel bone). It was treated by open reduction, internal fixation and bone graft. He was in hospital for six weeks, physiotherapy for a year, and dispensation of crutches at the end of two years. He was able to walk for half an hour before rest. He suffered from spasms in the right leg, loss of strength in the right limb when negotiating stairs, and had difficulty in squatting. $375,000 was awarded for PSLA.
48. In Wong Woon Hei v. Dickson Construction Co., Ltd & ors HCPI No.521 of 2000 per Deputy Judge Muttrie (Judgment dated 3 July 2001), the plaintiff suffered a fracture of the left calcaneum. It was treated by open reduction, internal fixation and bone graft. He was in hospital for eight days and rehabilitation centre for three months. He had pain and swelling in the left ankle, and every step he took was painful. He had to walk with a stick, and had difficult in squatting, and could not climb ladder. He was advised to have a fusion operation to relieve the pain. Both experts said he had a 20% chance of suffering degenerative arthritis in subtalar joint requiring further surgery. PSLA was agreed at $400,000.
49. Taking into account the plaintiff’s injury and treatment, his psychiatric condition and the advised operation to remove the internal fixation, PSLA is awarded at $375,000.
Pre-trial loss of earnings
50. The plaintiff's wage was $13,000 per month at the time of the accident. Both Dr Chun and Dr Tsoi suggested that he was unable to resume his pre-accident job. I agree as it involves a lot of climbing and jumping. He is suitable to take up jobs such as car park or petrol station attendant after the sick leave.
51. At the time of the accident, the plaintiff was residing in Shenzhen and commuting to Hong Kong for work daily. He did not resume working in Hong Kong by reason of the costs of commuting. He conceded that he could notionally resume the type of work recommended by the doctors after the sick leave period. Such jobs are likely to fetch a notional income of $6,000.
52. Hence, pre-trial loss of earnings is :
| (a) |
Total loss during sick leave period (3 September 2000 to 14 November 2001) |
$186,280 |
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$13,000 x 14 1/3 months |
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| (b) |
Partial loss from 15 November to trial |
$259,000 |
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($13,000 - $6,000) x 37 months |
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| (c) |
Less : Incidence of tax |
$ 6,313 |
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Pre-trial loss: |
$438,967 |
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Future loss of earnings
53. The plaintiff is now 38. Ms Leong suggested the multiplier of 11. She has referred to the range of multiplier of 10 to 12 for plaintiffs aged 41 to 45 in jobs ranging from waiter to formwork builder. The defendants denied that the plaintiff is entitled to any post-trial loss. I hold that the multiplier of 11 is appropriate. The same notional reduction for alternative work is applied. Hence, future loss is ($13,000 - $6,000) x 12 months x 11 = $924,000.
Loss of benefit under Mandatory Provident Scheme (MPF)
54. The plaintiff would have been entitled to MPF contribution by the employer as from 1 December 2000, three months after the accident. Hence :
| (a) |
Pre-trial loss |
$19,998 |
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($438,967 x 5%) – ($13,000 x 5% x 3) |
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| (b) |
Post-trial loss |
$46,200 |
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$924,000 x 5% |
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Loss of MPF : |
$66,198 |
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Loss of earning capacity
55. The plaintiff claimed for the handicap in the job market upon change of job of $108,000 on the basis of 18 months wage. The defendants denied any such award. Taking into account the notional reduction for the alternative job, and that the types of alternative job do not require great skill and are quite stable, I shall award the sum of $70,000.
Other special damages
56. The 2nd and 3rd defendants agreed with all items except $5,500 for tonic food. Taking in account the injury and period of sick leave, $5,500 is reasonable. I shall award the full claim of $18,539.
Future medical expenses
57. Dr Chun suggested $20,000 in the private sector for the removal of internal fixation. As the plaintiff has so far been using public health, no award is made.
Employee compensation
58. The plaintiff will give credit to $253,742.40 being Employees’ Compensation awarded in ECC No.308 of 2002.
Summary
59. The summary is as follows :
| (a) |
PSLA |
$375,000 |
| (b) |
Pre-trial loss of earnings |
$438,967 |
| (c) |
Future loss of earnings |
$924,000 |
| (d) |
Loss of MPF |
$66,198 |
| (e) |
Loss of earning capacity |
$70,000 |
| (f) |
Other special damages |
$18,539 |
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$1,892,704 |
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Less : Employees’ Compensations received |
$253,742 |
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$1,638,962 |
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Interest
60. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment. Interest at half judgment rate will be awarded on other special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.
Costs
61. In the main action, I shall make an order nisi that the 2nd and 3rd defendants do pay costs to the plaintiff. The order shall be made absolute after 21 days.
62. In the contribution proceedings, I shall made an order nisi that the 2nd and 3rd defendants do pay costs to the 1st defendant. The order shall be made absolute after 21 days.
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(B. Fung) |
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Deputy High Court Judge |
Ms Susanna K.Y. Leong, instructed by Messrs Fan, Wong & Tso (assigned by DLA), for the Plaintiff
Mr John Wright, instructed by Messrs Massie & Clement, for the 1st Defendant
2nd Defendant in person, present
3rd Defendant in person, present
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