WONG KIN CHUNG MICHAEL v. FENBAN SHIPPING CO. LTD. AND OTHERS

HCPI 1184/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1184 OF1998

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J U D G M E N T

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1. The plaintiff's claim is for damages for personal injuries sustained by him when a steel plate fell on his head on 5 December 1995 when he was unloading containers on a ship, the Leixos.

2. Initially the plaintiff started the action against all three defendants but has since discontinued his claim against the 1st and 2nd defendants. The remaining defendant (the 3rd defendant) was, at the time of the accident, the employer of the plaintiff.

3. The 3rd defendant who was unrepresented, failed to appear at the trial and the plaintiff was effectively left to prove his case.

4. The evidence from the plaintiff, and which I accept, showed that on the day of the accident, between 4 p.m. and 5 p.m., the plaintiff was working on board the Leixos as a stevedore helping to unload containers from that ship onto barges. When the plaintiff was at the forecastle deck of the ship, a metal plate which was hinged to a mast fell onto the plaintiff's head resulting in the plaintiff sustaining a rather severe head injury and losing consciousness.

5. The steel plate which fell on the plaintiff was a steel plate, which in the normal course of events, was hinged to the mast, drawn up against the mast and secured to it by a metal chain. Its purpose was to serve as a drawbridge giving access from the platform on the mast to the top of the first container on the deck. Therefore it was hinged to the mast at a height of about eight feet which was the height of a container.

6. In this case, the plaintiff's evidence was that the railings of the platform against which the steel plate in question was drawn up had rusted quite badly and that the metal chain which was used to secure the steel plate had gone missing. In its place a piece of rope was used to fasten the steel plate to the mast or the platform.

7. The plaintiff was unable to say how the steel plate came to fall on his head but that when he passed by the mast, this steel plate did fall and hit him on the head rendering him unconscious.

8. It is also the plaintiff's evidence that his employer did not provide him with any safety helmet when he was carrying out his work and in fact had never provided him with any safety helmet before.

LIABILITY OF THE 3RD DEFENDANT

9. As the employer of the plaintiff, the 3rd defendant was under a duty to ensure the plaintiff's place of work was reasonably safe and to provide the plaintiff with a safe system of work.

10. When an employer sends his worker to work at any place, he has a duty to ensure that the place is reasonably safe for his employee to work at.

11. There is nothing to suggest in this case that the 3rd defendant had taken any steps to ensure that the deck of the Leixos was a reasonably safe place for the plaintiff to work at. Moreover, the 3rd defendant was clearly in breach of his duties as an employer in failing to provide the plaintiff with a safety helmet to carry out the kind of work which the plaintiff was instructed to do.

12. Accordingly, I can only conclude that the 3rd defendant was negligent towards the plaintiff which resulted in the plaintiff being injured in the way described by him.

QUANTUM

Injuries and Treatment

13. After the accident, the plaintiff was sent to Queen Elizabeth Hospital in an unconscious state for emergency treatment. He regained consciousness a few hours later in hospital. He had received a 4 cm scalp laceration in the occiput region of his head and which was sutured. X-ray did not reveal any fracture to either the skull or the spine. C.T. brain scan was conducted but no intercranial lesion was detected. He remained in hospital for six days for observation and was discharged home. He was referred to both neurological and orthopaedic clinics for follow up. Physiotherapy was also arranged.

14. The clinical diagnosis by the hospital was a severe head injury.

15. Resulting from such injury, the plaintiff complained of dizziness and headache. He also had persistent neck and back pain as well as upper limbs numbness and weakness.

16. Orthopaedically, the plaintiff was examined by Dr Danny Tsoi in January 1998. At the time of that examination, the plaintiff's headache and dizziness had subsided but the neck pain still persisted, particularly when he turned his head to the right side. At times the pain radiates down to the scapular and mid-thoracic region. There was also occasional left upper limb numbness.

17. Dr Tsoi was of the opinion that the plaintiff suffered a direct contusion injury over his head and neck during the accident and that the resultant neck pain arises from musculo-tendinous strain over the paraspinal muscle with residual inflammation and scarring.

18. Dr Tsoi concluded that the plaintiff should be able to resume his pre-injury job but because of the neck pain, assistance from his colleague may be required when having to lift extremely heavy weights.

19. Neurologically, the plaintiff was examined by Dr Brian Choa in November 1999. Dr Choa concluded from such examination that the plaintiff suffered a mild head injury from the accident and had sustained post traumatic amnesia for some seven to eight hours. He also had post concussion syndrome with mild memory impairment, intermittent headache and dizziness and sleep disturbance but that the prognosis is good in view of his young age.

Pain Suffering and Loss of Amenities

20. When the plaintiff gave evidence in the trial, he still complained of his neck pain when he turned his head to the right. There is still occasional numbness of his entire left arm and feeling weak generally especially after a day's work. The neck pain is still bothering the plaintiff almost seven years after the accident.

21. I was referred by counsel for the plaintiff to a number of cases with reference to awards for pain and suffering. However such cases, while referring to neck pain, were mostly cases of whiplash injuries.

22. The present case is definitely not one of whiplash injury although one of the resultant disability to the plaintiff arising from the accident is the persistent neck pain, but only when he turned his head to the right.

23. This neck pain and the other disabilities still being experienced by this plaintiff has to be seen in its proper context which is that since November 1998, the plaintiff has returned to his pre-accident occupation as a stevedore albeit that he says that he cannot work for the same length of time as he used to before the accident due to such disabilities.

24. It is further conceded by counsel for the plaintiff that the injuries and disabilities of the plaintiff is not to such an extent that the plaintiff can come within the "Serious category" of injuries as it is understood in Lee Ting Lam's case.

25. In all the circumstances of this case, particularly the length of time which the neck pain has persisted, I am of the view that an award of $250,000 under this head of damage would be reasonable compensation.

Loss of Earnings (pre-trial)

26. Before the accident, the plaintiff was employed by the 3rd defendant as a stevedore and paid a monthly salary of $15,000. Moreover he was given a food allowance of $600 per month. At year end he was given a bonus equivalent to a month's salary. Taking all this into account, I accept the plaintiff's evidence that his pre-accident income works out to be $16,850 per month.

(a) Sick leave period

27. The plaintiff was given sick leave by government doctors for a period just short of two and a half years by a week and for such sick leave period did not return to work. The sick leave expired towards the end of May 1998. The plaintiff should be awarded total loss of earnings for this period of two and a half years.

28. I accept the suggestion of counsel that in those two and a half years, the plaintiff's salary would in all likelihood have increased by about 10% each year due to inflation. The mean average of his income for that two and a half years I work out to be $18,535. This translate to a loss of $556,050 for that two and a half years.

(b) From June 1998 to trial

29. The plaintiff gave evidence that he was not well enough to resume his pre-accident work as a stevedore until November 1998 when he did return to his pre-accident work. That however is not supported by the medical evidence since Dr Tsoi did opine as early as January 1998 that the plaintiff was fit to resume his pre-accident work.

30. The plaintiff also gave evidence that since his resumption of his pre-accident work in November 1998 until trial his income for those four years had been averaging between roughly about $10,000 to $12,000 per month. This was due to several factors. Firstly, while he was paid a fixed monthly salary before the accident, after the accident, when he resumed work with another stevedoring company, Transward Ltd, he was paid according to the work units he put in at the rate of $550 per work unit initially and increased to $600 per work unit at the start of this year. He said that for these four years, he could only work for 15 to 16 days in a month and for those 15 or l6 days he could only put in on average 20 work units. This is contrasted with his working 28 days in a month before the accident.

31. He further said in evidence that other colleagues of his doing the same work can earn at present between $20,000 to $30,000 in a month.

32. As proof of his post accident earnings after he had returned to working as a stevedore in November 1998 until the trial, the plaintiff relied on the following documents :

(a) An Employer's Return of his present employers, Transward Ltd, for the year ended 31 March 2001 in which it was stated that the plaintiff's income from 7 December 2000 to 31 March 2001 amounted to $40,950;

(b) A Notification to the Inland Revenue by an Employer of an Employee who is about to cease to be employed dated 19 April 2002 in which it was stated that the wages of the plaintiff for the period from 1 April 2001 to 28 February 2002 totalled $125,250;

(c) Bank statements of the plaintiff for the months of May, July, August, September and October of 2002.

33. The bank statements of the plaintiff put into evidence shows that for the month of May and July 2002, the plaintiff was paid $10,750 and $10,606 respectively by his present employers. These figures, as well as the figures contained in the Employers Return and the Notification to the Inland Revenue of an Employee about to cease to be employed, would tend to support the evidence given by the plaintiff himself as to his post accident earnings.

34. However, the bank statements for August, September and October 2002 showed that the plaintiff's bank account was credited with $20,120, $18,800 and $16,800 respectively by his present employer. The plaintiff explained that in these three sums credited into his account by his employer for August, September and October 2002 were also included the wages of substitute workers who had been arranged by the plaintiff to take over some of the plaintiff's work days when the plaintiff was not able to carry out his work. Such wages earned by these substitute workers were also credited to the plaintiff's account by his employer and the plaintiff will have to settle these payments with the substitute workers himself.

35. The plaintiff was also able to say that after paying off the substitute workers their share of the wages, his own earnings for August, September and October only came to about $9,000, $8,000 and $10,000 respectively.

36. The plaintiff also gave evidence that in his present employment (which he had been at for some four years since November 1998) if he was not able to work on a particular day, he was obliged to find a substitute worker to take his place or else he could be fired.

37. In assessing this evidence of the plaintiff, I take into account also the fact that apart from the bank statements for those months referred to above, no other bank statements had been produced by the plaintiff. Moreover, none of the substitute workers were called to substantiate the evidence of the plaintiff, nor was the employer called to give evidence of the fact that the plaintiff had to arrange for his own substitute workers on the days that he could not work and more importantly, that the payment to those substitute workers were paid directly to the plaintiff's account.

38. From his evidence it is not entirely clear but it appears that there are more than one such substitute worker engaged by the plaintiff, yet it does not appear that the plaintiff have himself kept any written record of these wage payments which he receives on behalf of his substitute workers. Instead the plaintiff seems to give his evidence as to what part of the wages belongs to him and what part to the substitute worker or workers only from his memory by simply looking at the bank statement. This is all the more surprising when one considers that the plaintiff is credited with his wages three times a month by his employer, namely on or about the 3rd, 13th and 23rd of each calendar month.

39. Moreover, equally surprisingly, it did not appear from his evidence that those figures relied on by him as contained in the Employer's Return or the Notification to the Inland Revenue of an Employee about to cease to be employed, any part of those figures contained wages which were paid to any substitute worker and yet those figures spanned 4 months in the Employer's Return and 11 months in the Notification to the Inland Revenue.

40. For the above reason and by looking at all the evidence before me including the bank statements, I am unable to accept the plaintiff's evidence that the wages credited into his bank account for August, September and October 2002 included wages which should rightly belong to his substitute workers nor his explanation for those figures.

41. Accordingly, I find that the plaintiff did have some loss of earnings when he returned to working as a stevedore after the accident but not in the region of $10,000 or thereabouts per month as suggested by his counsel.

42. From all the evidence before me, I am more disposed to the view that the partial loss of earnings for this period resulting from his injuries would more likely be in the region of $5,000 per month until just about the time of the trial.

43. Accordingly, the loss of earnings from June 1998 to trial (i.e. 53 months) is assessed at $265,000.

Future Loss of Earnings

44. Having rejected the plaintiff's evidence that he had to find substitute workers at time to stand in for him, and having regard to the wages credited to his account for the months of August, September and October, I am of the view that the loss of future earnings, if there is any, would indeed be very small. Based on his earnings for those months, I am of the view that a multiplicand of $3,000 would be sufficient to cater for future loss of earnings.

45. As for the multiplier, I take into consideration the medical evidence from both Dr Tsoi and Dr Choa both of whom express their views that the prognosis for the plaintiff is good and recommends conservative treatment for the plaintiff in future. Both their medical opinion suggest that with treatment, the plaintiff's complaints can be diminished if not cured in time. In the light of that, I am not prepared to assume that the plaintiff's complaints or disabilities are of a permanent nature. Indeed, nothing in the medical reports suggest that the plaintiff's disabilities or complaints are of a permanent nature. Had it been permanent, counsel for the plaintiff would probably be correct when he suggested a multiplier of 14 or 15 in view of the plaintiff's age being now 27 years old.

46. Taking into account the fact that the accident happened seven years ago, the medical opinion of Dr Tsoi was given in January 1998, a multiplier of four should comfortably see the plaintiff through whatever remains of his disability in the form of neck pain and upper limb numbness.

47. Accordingly, the loss of future earnings is assessed at $144,000.

Loss of Earnings Capacity

48. I accept that the plaintiff will be at a disadvantage in the labour market as a result of the accident and the resultant disability he suffers. That disadvantage cannot be a large one for since his return to work in November 1998, he had continuously worked for one stevedoring company, namely Transward Ltd for these four years or so without having been dismissed.

49. In all the circumstances of this case, I am of the view that $50,000 would be reasonable compensation under this head of damage.

Other Special Damages

50. The other special damages claimed in the total sum of $8,296.00 are made up as follows :

(a) Medical expenses of $3,368;

(b) Travelling expenses of $1,208;

(c) Cost of a machine for rehabilitation of $600; and

(d) Nourishing food of $2,000.

51. The medical expenses and cost of the rehabilitation machine are either supported by receipt or adequately documented and the amounts are reasonable enough and will be allowed in full.

52. Likewise the travelling expenses, although not backed up by receipts, the breakdown are reasonable and will also be allowed in full.

53. As for the nourishing food, in view of the sick leave period of some two and a half years, the amount seem reasonable enough and will also be allowed.

54. Accordingly, the other special damages claimed are assessed at the amount claimed, namely $8,296.

Loss of Mandatory Provident Fund ("MPF")

55. MPF came into effect in Hong Kong on 1 December 2000. The loss of pre-trial earnings from that date works out to be $120,000 (i.e. $5,000 per month for 24 months). Allowing for 5% being the employers share of contribution to the MPF, that comes to $6,000.

56. As for the loss of MPF relating to future loss of earnings, that will simply be a 5% of the amount of future loss assessed, which comes to $7,200.

Interests

57. Interests will be awarded in the usual way, namely at 2% for general damages for pain and suffering from the date of the Writ to date of judgment. For pre-trial loss of earnings and other special damages, at the rate of half judgment rate of 8.125% from the date of accident until date of judgment.

Deductions

58. It was pleaded in the plaintiff's Revised Statement of Damages in paragraph 20 that the plaintiff will give credit for :

(a) The amount of sick leave payment received from the 3rd defendant totalling $6,000; and

(b) The amount of damages which he may be awarded under Employees' Compensation Case No.871 of 1997.

59. The amount of the employees' compensation to the plaintiff in Employees' Compensation Case No.871 of 1997 was $458,441 which is inclusive of interests.

60. I am informed by counsel for the plaintiff, and accept, that that sum of employees' compensation has already taken into account the sick leave payment of $6,000.

61. Accordingly, credit need only be given for the amount of the employees' compensation.

Summary of Quantum

PSLA	$250,000
Pre-trial loss of earnings	821,050
Loss of MPF thereof	6,000
Future loss of earnings	144,000
Loss of MPF thereof	7,200
Loss of earnings capacity	50,000
Other special damages	8,296
Interests on PSLA	20,000
Interests on pre-trial loss of earnings, MPF thereof and other special damages	235,515
Sub-total :	$1,542,061
Deduct employees' compensation	458,441
Total :	$1,083,620

CONCLUSION

62. Accordingly, there will be judgment for the plaintiff in the sum of $1,083,620 against the 3rd defendant.

COSTS ORDER

63. There will be the usual costs order nisi that the 3rd defendant do pay the plaintiff's costs of his action to be taxed if not agreed and the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.