RAI JUN PRASAD v. PACIFIC CROWN SECURITY SERVICES LTD AND ANOTHER

HCPI 214/2016

[2018] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 214 OF 2016

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JUDGMENT

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Introduction

1.  On 19 August 2013, Mr Prasad was employed by the 1^st defendant (“Pacific Crown”) on a floating barge which was part of the Hong Kong– Zhuhai–Macau Bridge Project.  Pacific Crown was a subcontractor of the 2^nd defendant (“Dragages”), which was the Principal Contractor at the site.

2.  Mr Cheng, who represents both defendants, sensibly acknowledges that any liability found against Pacific Crown would also constitute liability against Dragages.  There is no issue of apportionment of liability between the two defendants.

The task and the system of work

3.  It is not in dispute that Mr Prasad was assigned to assist in unhooking iron chains which were connected to a drill bucket, which had been lifted from the sea bed.  The metal drill bucket was approximately 12 to 13 feet high with a diameter of approximately 8 feet.

4.  The system of work that was adopted involved Mr Prasad working with a co-worker.  The crane on the barge lifted the drill bucket from the seabed and placed it on the deck of the barge.  A metal ladder was placed against the side of the drill bucket, and the co-worker would climb the ladder to unhook the hooks from the drill bucket.  Mr Prasad’s task was to hold the ladder to ensure that it did not slip.

5.  There was a clear risk that the ladder might slip as it was on a wet deck surface, on a barge that was subject to movement by the sea.

The accident

6.  On the occasion of the accident, the co-worker first climbed the ladder while Mr Prasad held it firmly.  The co-worker was unable to detach all the hooks from the drill bucket and Mr Prasad was instructed to climb up the ladder to provide assistance.  The instruction was given by a foreman, Mr Jameel.

7.  Although the evidence establishes that Mr Jameel was present, quite close to the drill bucket, neither he nor any other worker stepped in to Mr Prasad’s place to brace the ladder.

8.  Mr Prasad climbed the ladder, putting his arms out to reach the hook with one of his feet extended.  The ladder slipped and Mr Prasad swung against the drill bucket, the left side of his body hitting the side of the drill bucket heavily.  With his right arm he gripped the top of the drill bucket, attempting to stop his fall, but that only served to provide a fulcrum for his body to swing against the drill bucket, subjecting his right shoulder to stress and tension as it supported Mr Prasad’s whole weight for a few seconds, before he was unable to stay in that position.  Mr Prasad then let go with his right hand and fell to the deck heavily.

9.  Mr Prasad did not immediately seek medical treatment but remained on the barge, (it was apparently about 6.30 pm) for a short period of time, until 7.30 pm, when all the workers were taken by a service vessel from the barge to land.  Mr Prasad went home to rest, and the next day went to hospital by himself.

Liability

10.  I am satisfied that it is patently obvious that a man on a ladder that was not braced, on a wet deck, on a barge subject to movement by the sea, would be exposed to a real risk of the ladder slipping and the man falling.  The system of work that was used plainly exposed the workers to the risk of injury.  The appropriate step to take was to have Mr Prasad steady and secure the ladder while a worker was on the ladder.  That step was not taken when Mr Prasad climbed the ladder.

11.  It was open to Mr Jameel, at the time he instructed Mr Prasad to assist the co-worker on the ladder, to himself brace the ladder.  He did not do so. There was a fellow worker nearby, Mr Rai Mahesh, who could have been instructed by Mr Jameel to hold the ladder, but no such instruction was given.

12.  In those circumstances Mr Cheng sensibly did not dispute the issue of liability, but confined his argument to the issue of contributory negligence.  In these circumstances I have no doubt that the employer and the occupier are liable in negligence and occupier’s liability in respect of the injury caused to Mr Prasad.

Contributory negligence

13.  The risk of falling from a ladder in the circumstances described is so patently obvious, that it must have been equally obvious to Mr Prasad that it was dangerous for him to climb the unsupported ladder.  It was open to Mr Prasad to ask Mr Jameel or Mr Rai Mahesh to hold the ladder as he went up it, but he did not.  Mr Prasad was accordingly partly responsible himself for his injury.

14.  Mr Cheng submitted that in those circumstances contribution lay in the range of 20% – 25%.  I am satisfied that the appropriate level of contributory negligence is 20%.

The injury

15.  Mr Prasad attended the Accident and Emergency Department of Queen Elizabeth Hospital the next day.  He complained of pain from his right shoulder, left heel, left calf and left hip.  On physical examination it was found that there was right shoulder crepitus with normal range of movement, a mild bruise over his left knee, with a normal range of movement. X-rays of the right shoulder, left hip, left knee, left leg and left heel showed no fracture.

16.  Mr Prasad’s undisputed evidence was that he did not go back to work, as he was in pain.  On 17 September 2013, he began outpatient physiotherapy treatment at Queen Elizabeth Hospital which carried on until January 2014.

17.  On 13 December 2013, Mr Prasad attended the Emergency Department at Kwong Wah Hospital where he continued to complain of right shoulder pain, and left hip pain, but now also complained of low back pain.  On physical examination there was mild tenderness in the right shoulder and left hip.  Tenderness was also noted on Mr Prasad’s lower back.

18.  In February 2014, Mr Prasad attended the Yau Ma Tei Jockey Club General Out Patient Clinic where he complained of persistent pain over his left knee, left hip and right shoulder.  He could walk unaided, and was referred to Queen Elizabeth Hospital physiotherapy department for a further course of treatment.

The medical reports

19.  On 17 February 2014, examination by a private doctor revealed significant inflammation of Mr Prasad’s right shoulder, back, left hip, left knee and left wrist. In February 2014, Mr Prasad went to Nepal where an MRI revealed a sub acromial and sub deltoid bursitis over the right shoulder, a disc bulge at L3/4 level of the lumbar spine and an encysted ganglion abutting the ACL and PCL.

20.  In March 2014, Mr Prasad began a second course of physiotherapy treatment and although complaining of pain, the physiotherapist noted that there were neither significant re-inflammatory signs nor neurological deficits.  Mr Prasad was discharged from physiotherapy by June 2014, as his condition had become stable and static.

21.  In August 2015, the Employees’ Compensation Board awarded Mr Prasad 11% loss of earning capacity as a result of multiple injuries resulting in right shoulder stiffness and pain, left hip pain, knee pain and low back pain.

22.  In 26 July 2016, following continued complaints of persistent right shoulder pain, a further MRI on Mr Prasad’s right shoulder showed supraspinatus tendinosis and a subacromial spur.  In November 2017, surgery was undertaken in respect of the right shoulder injury.  The medical report from Queen Elizabeth Hospital, made on 19 January 2018, after the surgery, describes the shoulder condition in the following terms:

“ The clinical diagnosis was supraspinatus tendinosis with adhesive capsulitis secondary to previous right shoulder injury.

[Mr Prasad] was last seen in our clinical 3 January 2018. His shoulder stiffness was much improved and was suggested to continue the physiotherapy for further rehabilitation.” [sic]

A “secondary injury” refers to damage to otherwise uninjured cells as a direct consequence of the physiologic response to a primary injury, usually caused byacute trauma.  In simple terms the secondary injury is a direct consequence ofthe primary injury.  There is no suggestion in the evidence of any interveninginjury.

23.  Mr Prasad had been examined by Dr Ian Wong Lok Yan at the request of his own solicitors, and by Dr Peter Ko Put Shui, at the request of those advising the defendants. 

24.  Although the Master had given leave to cross-examine the experts neither Mr Prasad nor the defendants’ solicitors made arrangements to call either doctor.  Mr Cheng was content for the joint report to be adduced as evidence without calling the experts to give oral evidence.

25.  It is significant that the joint report was prepared on 18 June 2016, following a joint medical examination on 26 April 2016.  It is to be noted that both the examination and the report were prior to the MRI undertaken 26 July 2016, and the shoulder surgery undertaken on 7 November 2017. 

26.  It is accordingly necessary that I should view the joint report in the light of the MRI and the report as to the subsequent surgery.  Mr Cheng made no submissions to me on this aspect other than to draw my attention to the report of 19 January 2018.

27.  Mr Prasad’s evidence was that notwithstanding the surgery he still suffered pain and restriction of movement in his right shoulder.  In the witness box he demonstrated what he said was the limit to which he could raise his right arm, which was about 20° above parallel to the ground.  That was not challenged.

Discussion

28.  Both doctors agreed that Mr Prasad suffered soft tissue injuries to his right shoulder, left knee, left buttock and lower back as a result of the fall on 19 August 2013.  Both doctors acknowledge that there was no complaint about back injury.  Dr Wong made no assertion in the joint report as to the back injury.  Dr Ko’s assertion that it would be:

“…impossible for Mr Prasad to have significant back injury after the accident…”

is consistent with the complete lack of any complaint about back injury prior to the MRI in Nepal.

29.  Accordingly, I cannot be satisfied on the balance of probabilities that Mr Prasad’s back condition is a consequence of the accident.

30.  Dr Ko acknowledged that the bursitis Mr Prasad suffered in his right shoulder was consistent with elements of post-traumatic nature.  That is entirely consistent with the description in the 19 January 2018, report of the shoulder condition being secondary to the previous right shoulder injury. 

31.  I am satisfied on the balance of probabilities that Mr Prasad’s shoulder condition is a consequence of the accident.

32.  In respect of the soft tissue injuries, Dr Wong’s view is that the residual pain, weakness and stiffness are likely due to residual post-contusion soft tissue scarring and pain.  Dr Ko is of the view that the pain now suffered is evidence of exaggeration and magnification. 

33.  Having regard to the cause of the injury, a fall from a height, the nature of the soft tissue injuries, and the continuing complaint, and the ultimate requirement for further surgery, I prefer the evidence of Dr Wong that the pain now suffered by Mr Prasad is due to the accident.  Ultimately when assessing any PSLA award, it will be necessary to have regard to the fact that surgery has been required as recently as November 2017.

34.  Dr Wong is of the view that Mr Prasad could not be expected to resume his pre-injury work as a construction site rigger but that he has demonstrated work initiative by returning to work as a security guard.  Mr Prasad’s evidence was that he is now working for a restaurant in a marketing capacity.  It is plain that Mr Prasad seeks an occupation that is not physically demanding.  I find that quite reasonable.

35.  Dr Ko was of the view that the job as a security guard was a purely personal choice, rather than having any significant limitation from his physical body condition.  I reject that view.  The role of a rigger is strenuous hard work.  The shoulder injury suffered by Mr Prasad is entirely consistent with the stress that his shoulder suffered while he hung momentarily from the drill bucket.  It would be very difficult for a man having suffered that injury to go back to that type of work.

36.  I prefer the evidence of Dr Wong and accept that Mr Prasad is unable to return to his former occupation.

37.  Dr Wong assessed the whole person impairment at 11% for injuries resulting in right shoulder pain and stiffness, back and buttock pain and left knee pain.  That is entirely consistent with the conclusion reached by the Employees’ Compensation Board. 

38.  Dr Ko was of the view that there was a 4% upper extremity impairment, equivalent to 2% whole person impairment.  No other impairment should be assessed in his view. 

39.  Having regard to the requirement for further surgery following the joint report, having considered the basis asserted by each of the two doctors,and having seen Mr Prasad in the witness box, I prefer the assessment of Dr Wong.  I reject the assertion that Mr Prasad has exaggerated his symptoms or that he is in any way a malingerer.

40.  I am accordingly satisfied that Mr Prasad has suffered a permanent disability as a result of the accident.

PSLA

41.  Dr Wong was the opinion that sick leave granted until June 2015 (22.2 months) was appropriate.  Dr Ko was of the view that 6 to 8 months was sufficient (May 2014).  I prefer Dr Wong’s opinion.

42.  Mr Prasad suffers pain over his right shoulder, right shoulder stiffness, pain over his left knee and left buttock, and limited movement of his right shoulder.  I accept that he will suffer pain on prolonged walking and standing and lifting heavy objects.  Mr Cheng suggests an award of $80,000.  Mr Prasad seeks $300,000.

43.  I am of the view that having regard to the extent of the injuries, and the effect that the injury will have on Mr Prasad’s capacity for the enjoyment of life, an award of $150,000 is appropriate.

Loss of earnings

44.  Mr Cheng accepts Mr Prasad’s claim that he earned an average of $24,123 per month the time of the accident.  I have accepted Dr Wong’s view of the sick leave.  The appropriate calculation for loss of earnings during the sick leave period is $24,123 × 22.2 months = $535,530.60.

45.  Mr Prasad is now earning $10,500 per week.  The appropriate calculation for pre-trial loss of earnings is for the period from the end of sick leave, 16 June 2015 to the date of trial: $24,123 − $10,500 × 35 months = $476,805.

46.  The total pre-trial loss of earnings are accordingly $535,530 + $476,805 = $1,012,335, from which must be deducted employees’ compensation of $760,951. 

47.  The net sum is $251,384.

Loss of MPF

48.  To that must be added pre-trial loss of MPF, an amount equivalent to 5% from the employer’s contribution to the MPF. 

49.  The calculation is $1,012,335 × 5% = $50,616.

Future loss of earnings

50.  Mr Prasad is now 45 years old and was 40 at the date of the accident.  Mr Cheng did not dispute the appropriate multiplier of 12.99 for a male aged 45 trial. 

51.  I accept Mr Prasad’s calculation of loss of future earnings as: ($24,123 − $10,500) × 12 months × 12.99 = $2,123,553.

Loss of earning capacity

52.  Having awarded future loss of earnings, is not appropriate to award loss of earning capacity.

Special damages

53.  In his pleadings Mr Prasad claimed $9,000 special damages by way of medical expenses, tonic food and travel expenses.  In his opening Mr Prasad claimed $20,000 but did not further substantiate that sum.  Mr Prasad must be confined to his pleadings and the evidence which supported $9,000. 

54.  I award $9,000 by way of special damages.

Interest

55.  Mr Prasad is entitled to interest on the general damages from the date of the service of the writ to the date of judgement, and interest on the special damages from the date of the accident to the date of judgment.

Summary

56.  The total damages awarded therefore are:

PSLA	$ 150,000
Loss of earnings	$ 251,384
Loss of MPF	$ 50,616
Future loss of earnings	$ 2,123,553
Special damages	$ 9,000
Total:	$ 2,584,553

That sum must be reduced by 20% for contributory negligence, giving net damages in the sum of $2,067,642.

57.  There will accordingly be judgment for Mr Prasad in the sum of $2,067,642, together with interest at the usual rates.

Costs

58.  There will be an order nisi, to be made absolute at the expiration of 21 days that Mr Prasad will have the costs of the proceedings to be taxed if not agreed, with his own costs, prior to the discharge of his Legal Aid Certificate, to be taxed in accordance with Legal Aid Regulations.