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HCPI 237/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES NO. 237 OF 2008
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BETWEEN
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ALTAF AHMED |
Plaintiff |
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and
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INNOVATIVE NETWORK ENGINEERING COMPANY LIMITED |
1st Defendant |
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YUEN WUI ENGINEERING LIMITED |
2nd Defendant |
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(in Compulsory Winding-up) |
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Before : Deputy High Court Judge Coleman SC in Chambers
Date of Hearing : 1 December 2010
Date of Judgment : 21 December 2010
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JUDGMENT
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INTRODUCTION
1. The plaintiff’s claim arises out of injuries he says he sustained in an accident when he was acting as a labourer on a construction site on Wuhu Street in Hunghom (“the site”) on 20 December 2005.
2. The 1stand 2nd defendants are both companies incorporated in Hong Kong. The 2nd defendant has been compulsorily wound up by an Order dated 23 April 2008, but notwithstanding that fact this action has been ordered to be continued against it.
3. Although the defendants filed a Defence when represented by solicitors, those solicitors later came off the record. Neither defendant has taken any step in the action since August 2008. Neither defendant appeared or was represented at the trial.
4. I proceeded with the trial in the absence of the defendants as I was satisfied that the defendants had been given proper notice of this case being in the warned list for trial. Further, contact had been established with a responsible person from the 2nd defendant to notify the precise date for trial and that person indicated that it would not appear or be represented at trial, whereas numerous attempts to contact the responsible person at the 1st defendant failed and calls were not returned.
5. I was also aware that both defendants had failed to appear or be represented at the trial of the claim against them brought by the plaintiff for employees’ compensation, despite the Deputy Judge who heard that trial being satisfied that proper and sufficient notice had been given to them of that trial (see below).
MAIN ISSUES
6. The Re-Amended Statement of Claim alleges that the 1st defendant was the principal contractor for the site, and that it had sub-contracted part of the work at the site to the 2nd defendant, who is said to be the employer of the plaintiff.
7. In their joint Defence, the defendants raise issues as to :
(1) the identity of the plaintiff’s employer — the defendants allege that the plaintiff was employed by the 1st defendant and that the 2nd defendant only introduced the plaintiff to work at the site for the 1st defendant;
(2) whether the accident occurred at all on 20 December 2005 — the defendants specifically deny that there had been any accident at the material time or in the way alleged or at all; and
(3) if the accident occurred, whether there is any liability on the part of the defendants — the defendants deny having been negligent, in breach of statutory duty or common duty of care, or breach of contract.
8. Though no Answer was filed in response to the Revised Statement of Damages, the Defence puts the quantum of the claim also in issue.
RES JUDICATA/ISSUE ESTOPPEL
9. On 7 May 2010, Deputy District Judge Kent Yee handed down judgment in action DCEC1141/2006 (“the DCEC action”) after a trial on 14 April 2010 of the plaintiff’s claim for employees’ compensation under the provisions of the Employees Compensation Ordinance Cap 282 (“the ECO”).
10. The 1stand 2nd defendants were the two respondents to that claim.
11. In his judgment, the Deputy Judge accepted that the 2nd defendant was the employer of the plaintiff, whilst the 1st defendant was the principal contractor and the 2nd defendant its sub-contractor.
12. The Deputy Judge also accepted the plaintiff’s account of when and how the accident occurred, and accepted that the plaintiff was injured in the way he described in the course of his employment with the 2nd defendant on 20 December 2005.
13. As a result, Ms Josephine Pinto (appearing for the plaintiff) submitted that there was an issue estoppel applying to those issues identified in paragraph 7(1) and (2) above, namely the identity of the employer and whether or not the accident happened at all.
14. Ms Pinto relied upon the decision of Seagroatt J in Fan Hung Shing v Hang Fung Shipping Co. Ltd (HCPI 1192/1995, 17 January 2000), where he accepted that the judge’s findings in the District Court employees’ compensation claim between the same parties created res judicata or issue estoppel properly called.
15. Seagroatt J in turn had relied upon the decisions in Mills v Cooper [1967] 2 QB 459 and Wong Waung Sum v Lee Kam Engineering Co. (a firm) [1996] 3 HKC 627.
16. Having reviewed those authorities, I am satisfied that there are issue estoppels arising from the matters decided by the Deputy Judge in the employees’ compensation claim in the DCEC action.
17. On the basis of the issue estoppel as to the 2nd defendant being the plaintiff’s employer at the material time of the accident giving rise to this claim, Ms Pinto indicated that she would not proceed with her claim against the 1st defendant.
18. I am, therefore, concerned only to deal with the issues of (a) the question of liability of the 2nd defendant at common law, and (b) if such liability is established, matters of quantum.
19. Of course, there may then follow consequential costs orders.
LIABILITY
20. The plaintiff was the only witness at the trial. He mainly adopted as his evidence in chief the three witness statements he had filed in the action.
21. As I have indicated, the defendants did not participate in the trial, but they had filed witness statements. Those statements are not evidence, but in any event, they gave advance notice of what the defence witnesses might have said as being largely to put the plaintiff to proof of his version of events.
22. In his evidence, the plaintiff described the circumstances as to how the accident occurred — the essence of which was, in any event, already accepted by the Deputy Judge in the DCEC action.
23. The plaintiff was working at the site, removing concrete by breaking it up using a jackhammer, which was provided by the 2nd defendant. The plaintiff says he was not given any proper instruction or training by the 2nd defendant in the use of the jackhammer.
24. He had removed most of the concrete he had to remove before a deadline of 4.00 p.m. that day — when traffic was to resume — and at around 3.30 p.m. the drill bit of the jackhammer slipped. In fact, the drill bit had been loose and giving some problems for some time, but the plaintiff’s complaints about this had been ignored and he was instructed to continue to use it.
25. As the jackhammer slipped and fell, so did the plaintiff, into the trench he had excavated. He fell on his right side.
26. It was the medical evidence that the injuries the plaintiff sustained were consistent with a fall of that description.
27. I have no hesitation in finding the 2nd defendant liable at common law, in both negligence and breach of an implied term of the contract of employment. There was a clear failure to have provided a safe and proper working environment, with a safe system of work and training, and the equipment which was provided to the plaintiff was defective.
28. No issue of contributory negligence arises as no such plea was made in the 1st and 2nd defendants’ Defence.
POSTSCRIPT ON LIABILITY
29. In the DCEC action, reference was made to a Recovery Declaration dated 7 January 2006, written in Chinese and English, and signed by the plaintiff. It was also signed by two witnesses and a representative of the 2nd defendant. It is apparently on the 2nd defendant’s headed notepaper.
30. It is not in dispute that the plaintiff had received $10,000 by cheque just after the making of the declaration, and the English text of the declaration reads :
“This is to certify that Mr. Atlaf Ahmed, holder of HKID No. [number set out in original, but not set out here], declared that he was fully recovered from his Injury. And our company had made an allowance which agreed by both parties on this incident. Mr. Atlaf Ahmed agreed that he would not make any claims in the future.”
31. In the DCEC action, it was apparently pleaded that this declaration barred the plaintiff from seeking relief. The plaintiff gave evidence at the trial that he had only signed the declaration under the undue influence of the two persons who witnessed it, and without any knowledge as to its contents due to his illiteracy. The claim was to vitiating undue influence and/or non est factum.
32. Despite the lack of contrary evidence, the Deputy Judge seriously doubted the truthfulness of the plaintiff’s account, and he rejected the suggestion of undue influence. He also pointed out that the plaintiff’s pleaded case was one of mistaken signing of the declaration, which was not borne out by and was inconsistent with his evidence.
33. It seems to me that those matters might also give rise to an issue estoppel, and as I put to Ms Pinto at the trial of this action, where reliance is placed on issue estoppel, the plaintiff must take the rough with the smooth.
34. Ms Pinto sought to rely on the provisions of section 31(1) of the ECO, which provides that :
“Any contract or agreement whether made before or after the commencement of this Ordinance, whereby an employee relinquishes any right to compensation from an employer for personal injury by accident arising out of and in the course of his employment shall, subject to subsection (2), be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under the provisions of the Ordinance.”
35. In the DCEC action, the Deputy Judge accepted that the declaration fell squarely within that provision. As a result, it was null and void in so far as it purported to prevent the plaintiff from making any claims under the ECO.
36. But I do not accept that the provision would help in relation to any claim which is not a claim for compensation under the provisions of the ECO. In other words, that provision does not render the declaration null and void in so far as it might purport to remove any common law claim.
37. Nevertheless, I do not think that the declaration is any bar to recovery by the plaintiff against the 2nd defendant in his claim at common law. First, as Ms Pinto pointed out, in contrast with the pleadings in the DCEC action, there is no plea in the Defence based upon the existence of the declaration.
38. Secondly, there is clear medical evidence that the symptoms from the injury after the accident had simply not recovered by the date of the declaration, 7 January 2006. On the contrary, the medical records identify that the plaintiff had re-attended at the Accident and Emergency Department (“A&E”) of Queen Elizabeth Hospital (“QEH”) just two days before the declaration on 5 January 2006, and that he re-attended on a further four occasions that month (13, 17, 24, 26), five occasions in February 2006 (5, 12, 19, 24, 27), as well as two further occasions in each of March and April 2006.
39. Those attendances are noted to have been for “persistent pain”. Also, sick leave was recommended for the period from 23 December 2005 to 20 April 2006 inclusive.
40. It is not clear to me whether this material was drawn to the attention of the Deputy Judge, but the material suggests (to me at least) that there may be something more in the plea of undue influence than was apparent to the Deputy Judge on whatever were the materials he considered.
41. In any event, even if the declaration was made of free will, it was predicated on the factual situation — full recovery from injury — which was plainly mistaken.
42. In the circumstances, I do not think that any weight can properly or fairly be given to the content of the declaration in the context of the pursuit of this claim at common law.
QUANTUM
43. The plaintiff was born in Rawalpindi, Pakistan on 22 February 1974, though he moved to live in Hong Kong as a young man. He is married, but his wife lives in England. They have no children.
44. The plaintiff was aged 31 at the date of the accident on 20 December 2005.
45. Other than a minor eye injury from which he fully recovered, the plaintiff had not been previously injured in any accident. Similarly, prior to the accident he had suffered no previous problem with his back.
46. According to the medical records, the plaintiff attended at the A&E of QEH on 21 December 2005, the day after the accident, complaining of back pain. Whilst it would appear that originally there was no reference to any definite injury, the plaintiff later claimed he had sustained an injury at work.
47. While his general condition was noted to have been good, there was tenderness over the lower back. He was treated and discharged with analgesic. Nevertheless, he re-attended with complaints of persistent pain on three further occasions in December 2005, and those occasions in January to April 2006 to which I have already made reference above.
48. On 4 March 2009, a Certificate of Review of Assessment was issued to the plaintiff by the EC (Ordinary Assessment) Board. This identified that the plaintiff had sustained a back injury resulting in pain and prolapsed intervertebral discs at L3/L4 and L4/L5 levels, with a loss of earning capacity of 5%. Sick leave was certified for the overall period from 23 December 2005 to 3 September 2008 (with the occasional gaps of a few days between periods).
49. I have been provided with various orthopaedic expert opinion reports, which were admitted as evidence without the need to call the experts as live witnesses at the trial (in accordance with previous directions given for the trial). Of particular importance are two joint reports of Professor Kumta and Dr Arthur Chiang.
50. The first joint report dated 24 July 2009 was produced after a joint examination of the plaintiff by the experts on 3 March 2009. As regards the particular injury sustained in the accident, Dr Chiang was of the view that it was a soft tissue injury of the low back, whereas Professor Kumta believed the injury should be more than a mere soft tissue contusion.
51. In the then the absence of certain medical records, the experts agreed that it was not possible to determine whether the current complaints of the plaintiff arose from the injury, or only a part of those symptoms were related to the injury. Nevertheless, the experts also agreed that there were three levels of lumbar disc prolapse, which was indicative of degenerative changes, and that it was unlikely that three level disc prolapse would come from a single episode of injury.
52. In essence, there was aggravation of a pre-existing lesion or an injury superimposed upon a pre-existing condition.
53. By reference to certain surveillance video evidence of the plaintiff, taken by an investigator, the experts seemed to agree that there may have been some exaggeration of the symptoms as claimed by the plaintiff. Nevertheless, Professor Kumta cautioned that symptom amplification is usually an unintended manifestation of the injury process, commonly seen in patients who have chronic pain and discomfort.
54. In other words, though there is undoubtedly some exaggeration by the plaintiff of his symptoms, that may not be a dishonest exaggeration, and it certainly does not suggest that there is no underlying residue symptom. Obviously, I will award any compensation only by reference to the real extent of disability, and not to any exaggerated extent.
55. Dr Chiang considered that the pre-existing degeneration suggested by the MRI was probably asymptomatic before the accident. It was his expressed opinion that if the plaintiff had continued to work in the pre-injury type of job, he might develop symptoms in about 10 years’ time from the time of the accident, which would have caused him to change to working in lighter duty jobs.
56. Professor Kumta thought it not possible to estimate when an asymptomatic individual with some age-related changes would become so symptomatic as to require a change in job.
57. However, this aspect was also the subject of comment in the supplemental joint report dated 8 September 2009. Both experts considered it likely that the several levels of lumbar disc protrusion were degenerative disc prolapses, and that one of the degenerative discs present before the injury was aggravated by the injury, giving rise to the symptoms and signs of a single lower lumbar disc prolapse.
58. Whilst Dr Chiang maintained his view that the symptoms might have developed in about 10 years’ time from the time of the accident, Professor Kumta expressed the view that :
“… it is difficult to predict when in time such degeneration would have caused the limitation in [the plaintiff’s] working capacity. Given that he has had multiple levels of degeneration, the possibility that he may have had to stop heavy manual work in 10-15 years time is more likely to have happened than not.”
59. As I read this, and contrary to the submission made by Ms Pinto, the Professor is agreeing that on the balance of probabilities the plaintiff would have had to have stopped heavy manual work within 10 to 15 years after the date of the accident, even had there been no accident, because of the multiple levels of degeneration in lumbar discs.
60. This seems to me to indicate the experts to be in broad agreement that the accident has accelerated by a period of approximately 10 years (Chiang), or 10-15 years (Kumta), the plaintiff’s move to lighter work arising from the degenerative condition of his back.
61. Dr Chiang estimated the plaintiff’s permanent impairment at 7%, Professor Kumta at 5%.
A — PSLA
62. In seeking the sum of $300,000 for an award for pain and suffering and loss of amenity (“PSLA”), Ms Pinto referred me to the cases of: Chan Yuet Keung v Harmony (International) Knitting Factory Ltd (HCPA 144/2009, 2 November 2010, Bhawarney J); Shah Nisar v Wai Kit Engineering Co. Ltd (HCPI 1092/2003, 11 April 2005, Sakhrani J); and Lam Wah v AS Watson & Co. Ltd (HCPI 676/2007, 25 May 2009, Master J. Wong).
63. Whilst I agree that those cases provide suitable examples as to an award of PSLA in similar factual circumstances, I consider the plaintiff’s current symptoms to be slightly more due to the pre-existing degenerative changes, and less the result of the accident injury, than in those cases. I would therefore award the sum of $280,000 for PSLA.
B — Loss of Earnings
64. In the DCEC action, the Deputy Judge found that the plaintiff’s monthly income at the time of the accident was $9,680. I see no good reason to depart from that figure.
65. The Deputy Judge also allowed sick leave for a period of 866 days, to which Ms Pinto invites me to add 2 months as an appropriate period within which the plaintiff might reasonably have found a new job. I am prepared to accept this, and so would allow total loss of earnings for 31 months (866/30 + 2 months), in the sum of $300,080.
66. That 31-month period runs until, say, the beginning of August 2008. It is to be assumed that the plaintiff should from that time have obtained lighter duty employment, perhaps as a security guard at a building — the job he eventually did obtain (albeit only as from July 2010). I have been told that the plaintiff in fact worked a few days between August 2008 and the July 2010, but his earnings were negligible and I intend to ignore them in these calculations as de minimis.
67. Since being employed in July 2010, the plaintiff has been earning $7,713 per month. As it happens, under his current contract with a building management company, he is working as a guard at a commercial building in Central. The contract provides that he may be moved, but that whilst he remains working at that building he will receive an allowance of an additional $550 per month.
68. The nature and purpose of the allowance is not identified in the contract, but it is stated to be payable only as long as the plaintiff is employed at that particular building.
69. In answer to my questions, the plaintiff was unable to say for what the allowance was paid, and he was unable to predict if and/or when he might no longer work at the particular building, or why he might be moved. Though it may not be helpful to speculate, it might be that the allowance is paid to the plaintiff for working at a building in Central, where it might cost more to buy meals during the working day than elsewhere.
70. Anyway, for the purposes of the calculation of pre-trial loss of earnings, I think it would be fair and appropriate to ignore that allowance. I have considered doing so except for the months in which I know he actually received the allowance, but the allowance is not specified to be part of salary, so is at least likely to reflect an amount needed to ensure the salary actually received is still $7,713 per month. In other words, I think I can assume the allowance does not increase the plaintiff’s true earnings, but rather is a sum to maintain his true earnings at the stated salary level provided for in the contract.
71. Hence the pre-trial loss for the period from 1 August 2008 to 30 November 2010 will be $(9,680 – 7,713) x 28 months = $55,076.
72. This gives a total pre-trial loss of earnings as $355,156.
73. As for the post-trial loss, Ms Pinto invited me to adopt a multiplier of 11, which she says is based on the joint expert’s views. I am afraid I disagree.
74. As I read what has been said by the joint experts (see above), even absent the accident, the plaintiff would likely have suffered from the current symptoms — and, hence, would have had to change jobs — within a period of around 10 years, or 10-15 years, from the date of the accident. For the avoidance of doubt, I do not think Professor Kumta was referring to a 10-15 year period after the date of the report, but in the context of what had just been expressed as Dr Chiang’s view in that report, the 10-15 years runs from the date of the accident.
75. Doing the best I can to take the common view of the experts, I think an appropriate period would be 12 years after the date of the accident. Almost exactly 5 years of that period have elapsed, so a 7-year period remains. In those circumstances, it seems to me that the appropriate multiplier is 5.
76. Again, I think it fair and correct to ignore the allowance which for the moment the plaintiff is receiving. I do so for the reasons I have identified above.
77. This would give a post-trial loss of earnings of $(9,680 – 7,713) x 12 x 5 = $118,020.
C — Loss of MPF
78. The plaintiff is entitled to an award to compensate for lost MPF at 5% on lost earnings. This is a sum of $(355,156 + 118,020) x 5% = $23,658.80.
D — Loss of Earning Capacity
79. I accept Ms Pinto’s submission that the plaintiff should recover under this head, and that an appropriate method of calculation in the circumstances is to take one month per multiplier year.
80. This gives an award under this head of $(7,713 x 5 x 1.05) = $40,493.25.
E — Special Damages
81. I accept the sum of $4,410 as medical expenses, as was found in the DCEC action. I also accept the pleaded claim to $13,740 for travelling expenses.
82. These two sums total $18,150.
F — Interest
83. I accept that interest is payable on the PSLA at the rate of 2% from date of service of the writ, 1 April 2008, and at half the judgment rate of 8%, ie 4%, on pre-trial loss of earnings (including that part of the lost MPF attributable to it) and special damages from the date of the accident. (For ease of calculation, and though there is in fact a gap of 20 days or so, I shall take 5 years as the period since the accident.)
G — EC Award
84. Of course, credit must be given by the plaintiff for the EC award of the sum of $320,881 (see Corrigendum to the Judgment in the DCEC action).
TOTAL AWARD
85. This gives a total award calculated as follows :
| PSLA |
$280,000.00 |
| Pre-trial loss of earnings |
355,156.00 |
| Post-trial loss of earnings |
118,020.00 |
| Lost MPF |
23.658.80 |
| Loss of Earning Capacity |
40,493.25 |
| Special Damages |
18,150.00 |
| Interests on PSLA |
14,933.33 |
| Interest on lost earnings etc. |
78,212.76 |
| Sub-total |
928,624.14 |
| Less : EC award |
($320,881.00) |
| Total : |
$607,743.14 |
86. I therefore give judgment in favour of the plaintiff against the 2nd defendant in the total sum of $607,743.14, with interest at judgment rate from date of judgment until payment.
COSTS
87. The plaintiff has succeeded against the 2nd defendant, and is entitled to his costs against the 2nd defendant.
88. In the circumstances that the plaintiff was justified pursuing the claim against both the 1st and 2nd defendants, when those defendants were alleging — contrary to the plaintiff’s case — that the 1st defendant was the employer, I accede to Ms Pinto’s suggestion that there should be no order as to the 1st defendant’s costs, and that the plaintiff’s costs of proceeding against the 1st defendant (insofar as they may be additional to his costs of proceeding against the 2nd defendant) should be borne by the 2nd defendant.
89. For the avoidance of doubt, as the claim was to a sum of greater than $1 million, and the sum awarded (before credit for the EC award) was close to that figure, I award costs on the High Court scale.
90. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.
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(Russell Coleman SC)
Deputy High Court Judge
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Ms Josephine Pinto, instructed by Messrs Massie & Clement, for the Plaintiff
The 1st and 2nd Defendants in person, absent
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