WONG TAI YAU v. TRANSWARD STEVEDORE LTD

HCPI 1080/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1080 OF 2006

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BETWEEN

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JUDGMENT

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1.  The plaintiff claims damages for personal injuries sustained by him in an accident in the course of his employment with the defendant which happened on 31 December 2003 while the plaintiff was unloading containers from the container ship “Philippine Star” which was in Hong Kong waters at the time.

2.  There is also Third Party proceedings between the defendant and the Third Party, being the registered owner of “Philippine Star” in which the defendant seeks to claim contribution and/or indemnity from the Third Party if it is found liable to the plaintiff for the injuries arising from the accident.

3.  This accident occurred while the plaintiff was in the course of releasing the lashing unit holding the containers in place.

THE LASHING UNIT

4.  In order to appreciate the evidence relating to how the accident occurred, it is necessary to understand the operation of the lashing unit, how it is employed and more importantly how it is released.

5.  The lashing unit is made up of a lashing bar of some 6 feet in length (usually with hooks on both ends) together with turnbuckle. The turnbuckle consists of a longish metal loop with two eyelets, the upper and lower eyelets. The lower eyelet is attached to a metal screw. At the other end of the metal screw is another hook.

6.  When the entire lashing unit is in place holding stacked up containers, the hook at the top end of the lashing bar is inserted into a corner casting of an upper container. The lower hook of the lashing bar is then hooked onto one of the eyelet of the metal loop of the turnbuckle. The hook at the other end of the turnbuckle is then hooked into another casting usually at the bottom of the container platform. Whether the lashing bar is hooked onto the upper eyelet or lower eyelet of the turnbuckle depends on the length of the lashing bar. The entire lashing unit runs diagonally across the lower container.

7.  The metal screw of the turnbuckle, when turned in one direction would tighten the entire lashing unit in order to hold containers in place tightly. When turned in the opposite direction it would loosen the lashing unit for dismantling.

8.  The lashing unit will of course need to be released before the containers can be moved or unloaded.

9.  In order to release the lashing unit, a worker will have to loosen the metal screw such that the lashing bar hooked onto the metal loop of the turnbuckle can become slack. When there is sufficient slackness between the lower hook of the lashing bar and the metal loop of the turnbuckle, the worker can then unhook the lower hook of the lashing bar from the metal loop of the turnbuckle. Thereafter the lashing bar will be allowed to hang vertically and freely from the corner casting of the upper container while the worker unhooked the turnbuckle from the casting at the container platform. After the turnbuckle has been unhooked and placed on the ground, the worker will unhook the lashing bar from the corner casting of the upper container by slightly lifting the entire lashing bar. When it has been unhooked from the upper hole, the lashing bar is thrown onto the ground because of its weight.

10.  The lashing bar is constructed in such a way that when it is hooked onto the corner casting of the upper container it is not supposed to dislodge from that corner casting until it is in a vertical position and then manually lifted up to be dislodged.

THE ACCIDENT

11.  There is no dispute that at the material time the plaintiff was employed by the defendant as a casual worker.

12.  It is the plaintiff’s case that at about 5.15 p.m. he was given the task of releasing lashing bars holding the containers in place while they were stacked up on the container ship during the voyage.

13.  The plaintiff’s evidence was that when he was loosening one of the lashing unit, but while he was holding the metal loop of the turnbuckle with his right hand and the lashing bar with his left hand, suddenly and without warning, the hook at the upper end of the lashing bar came off the corner casting of the upper container causing the lashing bar to fall down. The lower hook of the lashing bar had been hooked to the lower eyelet of the turnbuckle. When the lashing bar fell, the lower end of that lashing bar crushed his right thumb which the plaintiff had inserted into the lower eyelet while his right hand was still holding the metal loop of the turnbuckle. The plaintiff was later diagnosed to have suffered a comminuted fracture of his right thumb.

14.  After the accident, the plaintiff saw that the upper hook of the lashing unit was smaller than usual due to its have been corroded by rust. This was the reason the plaintiff attributed to the upper hook of the lashing bar coming off the corner casting of the upper container and falling down causing the accident and the injury to his right thumb.

THE PLAINTIFF’S CASE ON LIABILITY

15.  There is also evidence from both the plaintiff and his witness Chan Chi Pui that at the time of the accident to the plaintiff, the “Philippine Star” was a notoriously badly maintained ship all round. Their evidence was also to the effect that damaged and/or defective lashing equipment, some bent, some old, rusted, chipped and broken around the edges of their heads were used on the ship. The plaintiff had worked on the “Philippine Star” even before this accident and Chan Chi Pui had at least worked on this ship on the occasion when the accident happened to the plaintiff.

16.  Given this evidence, the plaintiff’s case is that the lashing bar involved in the accident was so corroded by rust that significant chunks of both distal corners of the “duck’s mouth head” disappeared leaving only a head which was so much reduced in size that it dislodged from the upper corner casting and fell accidentally by itself as soon as the plaintiff had loosened the turnbuckle causing the lashing unit to slacken with the lashing bar in a diagonal position.

17.  Had it not been for the rust and corrosion reducing the size of the “duck’s mouth head”, the lashing bar should not normally have dislodged from the corner casting, until it was moved from its diagonal position to a vertical position and then manually dislodged from the corner casting by being slightly lifted.

18.  The plaintiff puts his case on the footing that the defendant, given the notoriety of the badly maintained “Philippine Star”, had still instructed its workers including the plaintiff to unload cargos on that ship but without sufficient supervision and/or warnings. Moreover, the defendant was in breach of its duty in providing an unsafe place of work and an unsafe system of work for its employees by so doing.

THE DEFENCE CASE ON LIABILITY

19.  No evidence was called by the defendant to challenge the evidence of the plaintiff as to how the accident occurred and the defendant takes the position that it does not know how the accident happened to the plaintiff.

20.  However, the defendant accepts that the “Philippine Star” was notorious as a badly maintained ship, amongst other things using defective and badly maintained lashing equipment for its container cargoes.

21.  The defendant also accepts that rusted lashing bars with chipped or broken heads were liable to dislodge from the upper corner castings and fall accidentally as told in evidence by the plaintiff and Chan Chi Pui and also by the evidence of Wong Kam Wah a witness called by the defendant.

22.  The defence put forward by the defendant as to the plaintiff’s claim that the defendant was negligent is simply that short of refusing to accept the business of the Third Party to unload containers from the “Philippine Star”, there was practically nothing which the defendant could have reasonably done to protect its workers from the defective equipment on that ship.

23.  The defendant further says that refusing the business of the Third Party, while it may have been a practical step, was not a reasonable one. To that extent therefore the defendant put forward its defence to the plaintiff’s claim.

THE THIRD PARTY PROCEEDINGS AND THE THIRD PARTY’S CASE

24.  In the third party proceedings, the defendant claimed indemnity and/or contribution by the Third Party should it become liable to the plaintiff for the accident on the basis that it was the defective lashing equipment on board the “Philippine Star”, (of which the Third Party was the registered owner at the time of the accident) which caused the accident to the plaintiff.

25.  In defending the third party proceedings, the Third Party disputes as a matter of fact that firstly, the “Philippine Star” was notoriously badly maintained and secondly, that the lashing rod involved in the accident was so corroded that it could dislodge from the corner casting while still in the diagonal position.

26.  The evidence adduced by the Third Party came from Gregory Stuart Copley, a consultant in the maritime industry.

27.  In a nutshell, his evidence was that he had a been a seaman from 1965 to 1987, and thereafter a ship surveyor for ship insurers. The “Philippine Star”, being one of the ships he carried out survey on at the material time, was a well-maintained ship with well maintained lashing equipment which were free from defects as described by the plaintiff and the plaintiff’s witness Chan Chi Pui.

28.  In cross-examination, Mr Copley agreed that there are still many badly maintained container ships in operation notwithstanding annual checks carried out by the Classification Society, P&I insurers and hull underwriters. He did not know in fact which Classification Society or which insurers were used by the “Philippine Star” in December 2003.

29.  In making a witness statement in this matter, he understood he was to prepare a defence for the Third Party. He agreed that should be based on the factual knowledge he had relating to the ship.

30.  When confronted with the fact that in his witness statement and Supplemental witness statement (which had been adopted as his evidence-in-chief) reference was made to only one visit he had made to the “Philippine Star” which was in the summer of 2005 to inspect the ship’s covers and coamings, Mr Copley said that in fact there was an earlier visit by him to inspect the “Philippine Star” for insurance purpose.

31.  At first, Mr Copley said he could not remember when that the earlier visit was, then he changed to say it was some time between 2002 and 2005 but he could not be more exact. Still later, he said it was in 2003.

32.  He explained he had not mention this earlier visit in his two written witness statements given in October 2008 and May 2009 because he had not remembered that earlier visit when he made those statements.

33.  Yet in court, he not only remembered that earlier visit, but also recalled clearly looking at the lashing equipment on the “Philippine Star” on both visits and seeing that the lashing equipment on board was maintained in good condition except for some bent lashing bars put to one side which he believed were to be discarded.

34.  Mr Copley also gave evidence, contradicting the evidence of the plaintiff, Chan Chi Pui, and also the defence witness Leung Ho Kan, to the effect that lashing rods, because they are made of high tensile steel and are hot dip galvanized, do not corrode to the extent as described by those three stevedores, but at most will have a powdered or darkened surface texture.

35.  He described the galvanizing process of dipping the lashing bars into zinc to give the bars a zinc outer coating to prevent rust, but agreed that this outer zinc coating would be scratched off during use.

FINDING OF FACT

36.  On the disputed factual issue, I have no difficulty in accepting the evidence of the plaintiff as to how the accident happened as well as the cause of it from what he could observe of the “duck’s mouth head” in respect of the lashing bar which was involved.

37.  The plaintiff struck me as a simple and straightforward witness relating to the court as best he could the factual situation as observed by him, albeit that not being a wholly articulate person, at times he did have some difficulty expressing himself. This can be put down to his lack of articulation. It was not the easiest thing for him to explain in great detail how the accident happened in relation to the lashing unit.

38.  That the plaintiff was a truthful and honest witness can readily be seen by the fact that the plaintiff made no attempt to hide the fact that when the accident happened, he was holding the turnbuckle with his thumb inserted into the lower eyelet into which the lower end of the lashing bar had been hooked. Nor was the plaintiff evasive about that fact either. It was simply a straightforward admission by him when asked.

39.  On the other hand, I view the evidence of Mr Copley with the greatest suspicion.

40.  The entirety of his evidence came through in a way to suggest that he had to come up with a defence on behalf of the Third Party.

41.  The entire case revolved around an accident to the plaintiff which occurred on board the “Philippine Star” in December 2003. Mr Copley was not present when the accident happened.

42.  In his witness statement and supplemental witness statement there was only made mention of his one visit on board that ship in 2005 (which from his oral testimony was in the summer of 2005).

43.  It is surprising to say the least that he could not remember the earlier visit on board that ship when he gave his two witness statement, but when cross examined in court, suddenly remembered an earlier visit. Apart from that, he even remembered about the details of that earlier visit and was able to describe in detail the lack of defect with the lashing equipment on board.

44.  Moreover, the change in his evidence from initially not remembering when that earlier visit was to ultimately saying that it was in 2003 greatly suggest that Mr Copley was saying it so as to be as close to the time of the accident as possible.

45.  As for his evidence concerning the susceptibility of lashing bars to be excessively corroded, Mr Copley attempted to go so far as to give evidence about the rate of corrosion of high tensile steel although he has no expertise as a metallurgist. When that was pointed out to him, Mr Copley sought to justify his evidence on the basis that he was able to observe the rate of corrosion of lashing equipment when he was a seaman at sea. However that was many years before this accident, with a totally different generation of lashing equipment.

46.  I have no hesitation in accepting the evidence of those three stevedores, the plaintiff, Chan Chi Pui and Leung Ho Kan, where they conflict with the evidence of Mr Copley.

47.  I therefore find that the accident to the plaintiff happened in the way described by the plaintiff. I also find that the notoriety amongst stevedores of the “Philippine Star” for being badly maintained in respect of its lashing equipment including lashing rods was a matter well known in the trade.

LIABILITY OF THE DEFENDANT

48.  On the facts as found above, there can be no question but that the defendant was in breach of its duty to the plaintiff in respect of the accident which occurred.

49.  Given the notoriety of the “Philippine Star” in respect of its badly maintained lashing equipment, the defendant nevertheless instructed its workers (the plaintiff being one of them) to unload cargoes from the ship without adequate warning or supervision.

50.  The knowledge by the defendant of the badly maintained lashing equipment on board the “Philippine Star” and still permitting its workers to carry out the unloading on that ship is really no different from the defendant providing an unsafe system of work or unsafe place of work to its own workers.

51.  As Mr Clough puts it, the defendant sacrificed safety for speed, since it was important for the unloading to be carried out as quickly as possible in order to allow the ship to carry on its onward journey after the unloading.

52.  I do not accept the submission by Ms Lau forthe defendant that there was nothing the defendant could have done short of turning down the business from the Third Party. First of all, the defendant, as employer of the stevedores sent on board the “Philippine Star” to unload the cargo cannot turn a blind eye to the badly maintained lashing equipment on board, albeit that they were not the owner of the ship.

53.  If it was a normal ship normally maintained with non-defective lashing equipment, it may have been sufficient for the unloading work to be carried out in the way that it was, with each worker working on his own to unload the cargo.

54.  But given that it was a known fact that the “Philippine Star” was badly maintained by its owners, the defendant ought to have been more vigilant such as engaging teams of two or even three stevedores instead of just one for the unloading work. That would have slowed down the work of course, but it would have been safer and would also have shown the defendant to have cared about the safety of its workers and to have seriously considered its duty towards them and their safety. That would have been reasonable behaviour on the part of the defendant.

55.  That however was not done in this case, but the usual speed in unloading was proceeded with, not safety. In that sense the defendant was in breach of its duty.

56.  In the ultimate analysis, I find the defendant to be liable to the plaintiff for negligence in the occurring of this accident.

CONTRIBUTORY NEGLIGENCE

57.  Contributory negligence is based on fault.

58.  In this case, the evidence clearly showed that the plaintiff was at fault in putting his thumb into the lower eyelet of the turnbuckle, the same eyelet into which the lower end of the lashing bar involved in the accident was hooked when the plaintiff was holding the turnbuckle.

59.  Evidence from Chan Chi Pui, the plaintiff’s own witness and also from Leung Ho Kan, both of whom are also experienced stevedores showed that one should not put one’s thumb or any fingers into that same eyelet into which the lashing bar had been hooked. It was because his thumb was in the same eyelet as the lashing bar, that the lashing bar, when it jackknifed down after dislodging from the top corner casting crushed the plaintiff’s thumb.

60.  That is just common sense and I have no difficulty accepting that evidence from Chan Chi Pui and Leung Ho Kan in this respect.

61.  I therefore find the plaintiff to have been contributorily negligent for this accident.

62.  As for the apportionment of the contributory negligence by the plaintiff, I take into account that such fault on the part of the plaintiff was neither a short-cut taken by him for his own convenience, nor was he disobeying proper instructions given to him. In committing that fault, the plaintiff was at best momentarily inattentive because he was under pressure to unload the cargo as quickly as he could do so.

63.  I also take into account the fact that had the lashing bar not been defective, it would not have dislodged and therefore would not have jackknifed down the way it did in this accident.

64.  The defectiveness of the lashing bar must be by far the major cause of the accident, and the plaintiff’s momentary inattentiveness only a minor secondary cause.

65.  I therefore assess the contributory negligence of the plaintiff to be 10%.

INDEMNITY/CONTRIBUTION IN THIRD PARTY PROCEEDINGS

66.  On the facts as found above, there can be no doubt but that the major cause of the accident was due to the defectiveness of the lashing rod resulting in its dislodging from the corner casting of the container while still in the diagonal position, something which should not have happened had the “duck’s mouth head” not been so corroded.

67.  On the basis of the defectiveness of the lashing rod, the defendant claimed a full indemnity from the Third Party.

68.  However, the defendant was not without fault either, in that it had failed to take adequate safety measures to protect its workers when it was common knowledge amongst the stevedores that the “Philippine Star” was not a well maintained ship including its lashing equipment.

69.  In the circumstances, the defendants should not be entitled to a full indemnity, but that the defendant will have to shoulder some of the blame for the accident.

70.  Given all the circumstances of the case, however, the major portion of the blame will be upon the Third Party.

71.  Accordingly, having found the plaintiff to be 10% to blame for his own contributory negligence in the matter, I will apportion the remaining 90% as between the defendant and the Third Party in the respective ratio of 30% to be that of the defendant and 60% to be that of the Third Party. In other words, apart from the plaintiff’s own contributory negligence, the Third Party is two-thirds to blame, while the defendant is one-third to blame for their part in this accident.

QUANTUM

Injuries and treatment

72.  After the accident to the plaintiff, the matter was reported to the foreman and the plaintiff was taken to the Accident and Emergency Department of Queen Elizabeth Hospital (“QEH”).

73.  X-ray examination showed comminuted intra-articular fracture of the proximal phalanx of the right thumb, namely, multiple fractures which extended into the articular area of the joints of the proximal phalanx.

74.  The plaintiff was admitted into the Orthopaedic and Traumatology Department of QEH.

75.  The fractures were initially treated conservatively by a thumb splint and the plaintiff was discharged from hospital two days later.

76.  The plaintiff was followed up regularly but there was persistent pain of the right thumb.

77.  Repeated X-rays showed small steps over both the interphalangeal joint and the metacarpophalangeal joint which suggested complication.

78.  CT scan was done in December 2004 which showed mild decrease in joint space of the metacarpophalangeal joint.

79.  The plaintiff underwent surgical operation in April 2005 for the fusion of the metacarpophalangeal joint and debridement of the interphalangeal joint.

80.  X-rays taken after the surgery showed gradual healing. The pain over the interphalangeal joint reduced initially and the range of movement increased.

81.  The metacarpophalangeal joint could not move having been fused by surgery. There was still persistent pain.

82.  When followed up in May 2006, it was noted that pain over the interphalangeal joint had recurred.

83.  Two sessions of physiotherapy were given to the plaintiff, the first from February to June 2004. In the first session, ice therapy and magnetopulse therapy were given to control the swelling. Wax therapy and ultrasound were added later for pain relief. Training to implement hand function was also implemented.

84.  The second session of physiotherapy was given after the operation for fusion of the metacarpophalangeal joint and debridement of the interphalangeal joint. Ice with magnetopulse therapy were again given. Passive mobilization to the interphalangeal joint was added later.

85.  In August 2005, the plaintiff’s condition was assessed to be static and physiotherapy ceased with advice on home exercise.

86.  The grip strength of the right thumb could not fully recover but the treatment given had prevented it from deteriorating. The plaintiff had difficulty lifting heavy objects.

87.  Sick leave was given to the plaintiff from 31 December 2003 to 3 June 2004 and from 15 March to 7 December 2005 in respect of the injury suffered by him in the accident.

Expert opinion

88.  The plaintiff was jointly examined by Dr Jack Wong and Dr S.Y. Chun on 29 May 2008 and a joint report by both experts dated 12 June 2008 was agreed into evidence.

89.  Both Dr Jack Wong and Dr S.Y. Chun were agreed upon the following matters :

(a)  the treatment given to the plaintiff was reasonable;

(b)  the clinical and radiological findings were consistent with the injuries sustained by the plaintiff;

(c)  the plaintiff has attained maximal medical recovery and the residual pain, tenderness, shortening, deformity, stiffness and weakness would be permanent; and

(d)  the sick leave given to the plaintiff was appropriate.

90.  Dr Jack Wong opined the following matters :

(a)  the plaintiff’s symptoms were not only consistent with the injuries, but were also genuine;

(b)  the plaintiff will have pain and discomfort during exertion and weather change—with difficulty in daily activities which require thumb action;

(c)  the plaintiff will need intermittent symptomatic treatment  for residual pain costing between $2,000 to $3,000 per year; and

(d)  the plaintiff will not be able to resume his pre-accident work because of the pain, stiffness and weakness of his right thumb and cannot do heavy work with his right thumb.

91.  On the other hand, Dr S.Y. Chun opined that the plaintiff’s right thumb was fused in the functional position of 15° flexion and should not cause pain although there will be stiffness at the interphalangeal joint. The plaintiff should be able to use chopsticks with the thumb, wring towels etc. The right thumb was stable. Callosity on the right side showed exertion with the right thumb, but there will be some reduction in efficiency. The plaintiff should be able to resume his pre-accident work as a rigger and should not have any significant pain.

92.  The plaintiff was also examined by the orthopaedic expert, Dr Lau Hoi Kuen, instructed by the Third Party, on 18 August 2008.

93.  Dr Lau was of the view that the plaintiff should have very slight problem in the activities of daily living after the right thumb injury.

94.  Dr Lau opined that the plaintiff did suffer some degree of residual pain and stiffness of his right thumb but should still be able to resume his pre-accident job but with some decrease in his efficiency at work.

Pain suffering and loss of amenities

95.  From the injuries and treatment referred to above as well as the opinion given by the experts as to the plaintiff’s condition as well as his disability, I am of the view that the injury to the plaintiff and the resultant disability caused to him fall below the lower end of the serious category as it is understood in the case of Lee Ting Lam.

96.  Although there is some dispute between the experts as to whether the plaintiff will be able to resume his pre-accident job, as matters have turned out, the plaintiff has now admitted that he has been working since 27 March 2006 as a stevedore for Everbest Port Services Ltd (“Everbest”) at the container port earning $11,000 per month. At the time of trial, the plaintiff was still working with Everbest.

97.  Taking that into account, as well as his injuries described above, I assess the award for PSLA to be $250,000.

Pre-trial loss of earnings

98.  As for the plaintiff’s pre-accident earnings, the plaintiff alleged that he was earning about $14,000 per month before the accident.

99.  The defendant, on the other hand, has produced documentary evidence showing the actual earnings of the plaintiff for the entirety of 2003. I accept the documents produced by the defendant and find that the average earnings of the plaintiff before the accident to be $12,930 per month.

100.  As already stated above, the plaintiff was given sick leave in respect of two separate periods, together totally some 14 months. The second period of sick leave was given to him after he underwent surgical operation for the fusion of the metacarpophalangeal joint in April 2005.

101.  In between the two sick leave period, the plaintiff returned to work for the defendant for nine and one-third months earning between $6,000 and $7,000 per month.

102.  For this period, no documentary evidence similar to those in relation to the plaintiff’s wages in 2003 was produced by the defendant and I can only take an average of $6,500 from the evidence of the plaintiff as being his average earnings per month for that period.

103.  After the sick leave period, there is some evidence from the plaintiff that he had worked as a cleaner earning $3,700per month for the first three months of 2006 before he took up the job of a stevedore with Everbest working at the container port earning $11,000 per month.

104.  It was submitted by the defendant that by March 2006 the plaintiff, who was born in February 1958, was already 48 years old, and given the evidence of Chan Chi Pui and Leung Ho Kan, both of whom gave evidence that the oldest midstream stevedores they currently work with are in their 40’s, the plaintiff, even had it not been for the accident, would likely have changed to working at the container port, which is less demanding than mid-stream, by that time. Therefore it was suggested by the defendant that since March 2006, there should be no loss of earnings assessed.

105.  On the other hand, the plaintiff’s submission on this issue was that whether or not a particular stevedore continued to work as a mid-stream operator or changed to working at the container port was determined by whether or not the ganger would pick him to do mid-stream operation. That depended on his fitness as well as his experience.

106.  In this case, the evidence showed that up to the time of his accident, the plaintiff had no difficulty obtaining work as a mid-stream operator when he was already 45 years old. He was also very experienced in his work.

107.  Moreover, having had the opportunity of seeing the plaintiff during the trial, he impressed me to be a very fit person, much more so than others of that age.

108.  In the circumstances, I take the view that it would not have been difficult for the plaintiff to have continued working as a mid-stream operator up to age 50.

109.  However, I have more than a little reservation as to the plaintiff’s claim that he would have continued working as a mid-stream operator up to age 65. I view that statement by the plaintiff to be either bravado or wishful thinking.

110.  In the circumstances, I am prepared to go only as far as to find that the plaintiff would likely have continued to be a mid-stream operator up to age 50.

111.  Based on the above, I will assess the loss of pre-trial earnings to be as follows :

(a)  for the two sick leave periods, full loss of earnings and MPF calculated as $12,930 x 424/30 x 1.05 giving $191,881.00;

(b)  in between the two sick leave period, partial loss of earnings and MPF calculated as ($12,930 - $6,500) x 9 1/3 x 1.05 giving $63,014.00;

(c)  January to March 2006 partial loss of earnings and MPF calculated as ($12,930 - $3,700) x 3 x 1.05 giving $29,075.00; and

(d)  from April 2006 to February 2008 partial loss of earnings and MPF calculated as ($12,930 - $11,000) x 23 x 1.05 giving $46,610.

112.  The total pre-trial loss of earnings and MPF therefore comes to $330,580.00.

Future loss of earnings

113.  From the findings above that the plaintiff would likely have continued as a mid-stream operator up to age 50, it follows that after age 50, the plaintiff would also likely have continued working as a stevedore at the container port if he continued working at all.

114.  In the circumstances, there can be no loss of earnings to the plaintiff after age 50.

115.  I therefore make no assessment under this head of damage.

Loss of earnings capacity

116.  For the injuries suffered by the plaintiff, there is no question but that he will be at a disadvantage in the labour market.

117.  The defendant is prepared to accede to $100,000 under this head of claim.

118.  That being a reasonable amount given the circumstances, I will make the assessment in that amount.

Special damages

119.  Medical expenses have been agreed between the parties at $3,000.

120.  Travelling expenses are claimed at $5,000. There is however no receipts to support this claim. Furthermore, looking at the amount claimed, it is even more than the amount of medical expenses claimed.

121.  In the circumstances, what is claimed for travelling seems somewhat unreasonable.

122.  I will assess traveling expenses at $2,500 as offered by the defendant.

123.  Nourishing food is also claimed by the plaintiff at $8,000.

124.  Again this claimed amount is not supported by any receipts. In the absence of any receipts, I am only prepared to assess nourishing food at $4,000.

125.  Total special damages therefore are assessed at $9,500.

Future medical expenses

126.  Future medical expenses is claimed on the basis of $2,000 per year and using a life long multiplier of 15, the total claim comes to $30,000.

127.  The defendant, on the other hand, says that no more than $2,000 should be assessed under this head of claim relying on the evidence of the experts.

128.  The experts had given different opinions as to future treatment.

129.  Whilst Dr Wong had opined that the plaintiff would need intermittent symptomatic treatment for his residual pain and assessed the annual costs to be about $2,000 to $3,000, he did not specify how long that future treatment is likely to last.

130.  On the other hand, Dr Chun states that the plaintiff’s residual pain is mild and only occasionally would some analgesic be required to cater to such pain. Dr Chun estimates the cost of that to be no more than $100 per annum.

131.  I find myself more receptive to the opinion given by Dr Chun. After all, Dr Wong has been proved wrong by subsequent events as to his view about the plaintiff not being able to resume his work as a stevedore. In the sense Dr Wong has seemingly somewhat overplayed the resultant disability to the plaintiff from his injuries suffered in the accident.

132.  I will therefore assess damages under this head to be $2,000 as offered by the defendant which I view to be a more than reasonable offer.

Interest

133.  Interest will be awarded at 2% p.a. for the award under PSLA from the date of the Writ until judgment.

134.  Interest on all pre-trial losses and special damages will be at half judgment rate from the date of the accident until judgment.

Deduction for ECC compensation

135.  Plaintiff is prepared to give credit for $183,920 being ECC compensation received by him.

SUMMARY

136.

	PSLA	$250,000
	Loss of pre-trial earnings and MPF	$330,580
	Loss of earnings capacity	100,000
	Special damages	9,500
	Future medical expenses	2,000
	Interest on PSLA	14,167
	Interest on all pre-trials and specials	78,218
	Sub-total:	$784,465

137.  The above amount of $784,465 reduced by 10% for the plaintiff’s own contributory negligence will give $706,019.

138.  Moreover, credit will need to be given for the sum of $183,920 already received by the plaintiff being ECC compensation. This will give the final figure of $522,099.

CONCLUSION

139.  There will be judgment to the plaintiff in the sum of $522,090 against the defendant.

140.  There will be a costs order nisi that the defendant pays the plaintiff’s costs of this action to be taxed if not agreed.

141.  As for the Third Party proceedings, there will be an order that the Third Party bears two-thirds of :

(a)  the judgment sum and the plaintiff’s costs of the action which the defendant is found liable to the plaintiff for; and

(b)  the defendant’s own costs in defending the plaintiff’s claim.

142.  There will also be a costs order nisi that the Third Party pays to the defendant its costs of the Third Party proceedings to be taxed if not agreed.