RAI SIVA RAJ v. NORMAN LIANG t/a J. LIANG & SON AND ANOTHER

HCPI 772/2016

[2020] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 772 OF 2016

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JUDGMENT

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1.  The Plaintiff was an employee of the 1^st Defendant. This is an action for damages arising from certain nerve injury to the Plaintiff’s left arm allegedly caused by prolonged manipulation of a water hose within close quarters in the course of cleaning work carried out on 2^nd November 2013 (Saturday) at the power plant of Hong Kong Electric Co Ltd (“HEC”) in Lamma Island (the “Power Plant”).

2.  The 1^st Defendant, represented by Mr Ashok Sakhrani, contested both liability and quantum of damages. The 2^nd Defendant joined as a party herein by virtue of a Consent Order granted by Master Leong on 2 September 2016 but has since ceased to participate in the proceedings. In this respect, no issue was taken by the Plaintiff or the 1^st Defendant.

THE PLAINTIFF

3.  The Plaintiff is Nepalese by descent and he was born in Hong Kong on 22 August 1975, when his father was serving in the British Forces. He returned to Nepal at the age of 3. Upon completion of secondary education at the age of 22, he returned to settle in Hong Kong in about March 1997.

4.  After returning to Hong Kong in 1997, the Plaintiff worked as a general labourer in various constructions sites. In due course, he also started to work as an assistant electrician, a maintenance worker or a concreter, presumably as dictated by the availability of work. 

5.  On 11 November 2007, the Plaintiff was employed by the 1^st Defendant as a scaffolder[1] otherwise described as a rigger[2]. He was the holder of a Trade Test Certificate Card issued by the Construction Industry Training Authority and was certified as a “metal scaffolder” in 2005[3].  He also held an Intermediate Trade Test Certificate issued by the Construction Industry Council and was certified as a “general welder” and “concreter”[4].

6.  According to the Contract of Employment, the Plaintiff’s normal working hours were from 8:00 am to 11:45 am and from 1:00 pm to 5:00 pm.  The wage slip for the first half of November 2013[5] shows that the Plaintiff’s basic wage was HK$580 but for just one additional hour of work from 5:00 pm to 6:00 pm he would be paid ½ day of basic wage.  Work performed on Sundays would attract a higher daily rate of HK$1,160.

7.  The Plaintiff’s Tax Return (2012/2013) shows that his total taxable income was HK$284,049[6] (or HK$23,670 per month).   Notably, the 1^st Defendant adopted a daily wage of HK$920 in calculating the Plaintiff’s Employees’ Compensation by way of periodical payment[7] which was increased to HK$950 with effect from January 2015.[8]

8.  In contrast, the daily wages of the 4 comparable workers (ie HK$830 or HK$840 as of March or April 2019) are much lower than that commanded by the Plaintiff back in November 2013 and January 2015. I take it as that the disparity is attributable to the Plaintiff’s seniority, versatility and loyalty.

9.  Mr Kwong Wing Yeung (“Mr Kwong”), a Senior Foreman of the 1^st Defendant, agreed that the Plaintiff was a loyal employee.  It is not disputed that he left the employment of the 1^st Defendant very briefly in April 2011, probably only for two days[9] to work as a security guard, and he was invited back to work for the 1^st Defendant[10].

10.  In the Re-Revised Statement of Damages, Pre-Trial Loss of Earning is claimed on the basis of a pre-injury monthly income of HK$21,980 (ie about HK$920 x 24 days as opposed to HK$23,670/month), which is the average for the 12 months preceding 2 November 2013[11]. This seems more than reasonable.

11.  The Plaintiff was married in 2000. At the inception of his employment with the 1^st Defendant in 2007, he lived with his wife and their son in a rented private accommodation in Yuen Long.  They have since been allocated a public rental unit in a housing estate in the same area.

THE WORKPLACE INSIDE AN ELECTROSTATIC PRECIPITATOR

12.  Given the wide array of disputes between the parties as fundamental as the dimensions and layout of the workspace as well as the work process, it is extraordinary that no expert direction has been sought and no joint site inspection has been carried out before trial to take proper measurements and photographs in order to avoid unnecessary arguments.

13.  This is not helped by the fact that the very few photographs[12], which the 1^st Defendant did produce apparently from the archive of HEC, are so small (about 1½ inches by 3 inches) and of such poor quality that they are hardly sufficient to depict the locus in quo.

14.  By way of background, the 1^st Defendant was a regular or long-serving contractor of HEC for various maintenance and cleaning work at the Power Plant. The 1^st Defendant established a significant presence at the Power Plant, engaging some 60 to 70 workers of various types and having its designated work base or office on site.

Dimensions of an Electrostatic Precipitator Unit

15.  HEC operated a number of coal-fired generators at the Power Plant. Before exhaust fume arising from burning of coal is emitted into the atmosphere through the chimney, the fume would be channelled through an environmental protection mechanism known as an “Electrostatic Precipitator”, which is essentially a steel structure with a rectangular footprint towering 4 to 5 storeys, where dust and particles in the fume are filtered and trapped by electrostatic collectors (ie an array of vertical metal strips with electrostatic charges forming a filtering screen).

16.  There were 8 Electrostatic Precipitators Units (“EP Units”) at the Power Plant.  Each EP Unit consists of two banks of four filtering chambers erected on either side of an elevated walkway (about 1 ½ metres in width) made of metal frames and plates (the “Walkway”), which was built on the strip of open space (about 3 metres wide) separating the two banks of filtering chambers[13].

17.  Each chamber can be accessed through a metal hatch door (measuring about 600mm in width and 800mm in height) located at the level of and by the side of the Walkway. Underneath each 2 connecting filter chambers is a hopper, which is not of particular concern in this case. An EP Unit rises to a height of some 16 metres above the level of the Walkway[14].

18.  Overtime, the electrostatic collectors inside a filtering chamber (the “filters”) would be caked up by dust.  Routine cleaning would be effected by an automated system of metal hammers installed inside the chamber (activated either by a hydraulic or electromagnetic mechanism) coupled with a sprinkler system (with auto valves installed near the top of each chamber)[15]. 

19.  Despite the use of the automated cleaning system, the filters needed to be manually washed with a water jet. Further, there might be spots in the screens of filters not reachable by the automatic sprinklers. Naturally, the manual work would be carried out during periodic maintenance of the 8 EP Units (by rotation). This is where the 1^st Defendant and its workers (such as the Plaintiff) came into the picture. 

20.  As one enters through a hatch door of a filtering chamber by the side of the Walkway, there is a passageway (ie perpendicular to the Walkway). The metal hammers are located on either side of the floor of this passageway[16]. There is no dispute that the passageway is about 18 metres in length (ie also the horizontal dimension of one screen of filters at either side of the passageway[17]). However, the width of this passageway and the space above are matters of serious contention.

Location of the Hanging Platform (Inside EP 8) and body space available for manoeuvre

21.  Mr Leung Sze Huen (“Mr Leung”), who was a workman of the 1^st Defendant with some post-secondary engineering training, said with reference to the only formal drawing produced before the Court of EP Unit No 7[18], which was stated to be identical to EP Unit No 8 (“EP 8”) though the scale was not specified or discernible therefrom due to illegible printing, that the passageway was at least 1 metre in width as opposed to 225 to 250mm as depicted in the diagram produced by the Plaintiff[19].  I have no doubt that the truth lies somewhere in between.

22.  At the material time, the Plaintiff’s work involved the assembling of metal scaffold inside the passageway of EP 8 in order to support a narrow overhanging work platform (the “hanging platform”) to be erected at mid-height above the chamber floor (ie some 8 to 10 metres above)[20]. The hanging platform ran through the whole length of the passageway (ie 18 metres) to provide access to all parts of the screens of filters on either side of the passageway.

23.  The Plaintiff contended that the vertical space of the entire passageway was only about 225 to 250mm in width. This cannot possibly be correct since in this scenario, even if the Plaintiff was able to enter the space sideways “like a crab”[21] to stand on the hanging platform:

(a)  almost the entire space would be taken up by the thickness of his body with no room to move around at all;

(b)  there would not be enough space to carry out the spraying work[22] as demonstrated by the Plaintiff in Court (ie holding in his right hand the nozzle of a hose in an upright position and sweeping it up and down in front of his body through a vertical angle of 60 to 70 degrees to cover different areas of the screen of filters above the hanging platform). 

24.  Neither party saw fit to seek directions for a site inspection to take proper measurements or non-party discovery against HEC for more definitive drawings, which undoubtedly would be available. However, it is tolerably clear from photographs (No 1 and No 3 in Exhibit D2) produced by the 1^st Defendant that what the Plaintiff must have meant by 225 to 250mm is the width of the metal plank forming the hanging platform (ie just enough for foothold of an adult person). However, that is only half of the solution to the conundrum.

25.  Notably, Photographs No 1 and No 3 in Exhibit D2 do not actually show the hanging platform erected inside EP 8 at the material time.  As said, these are photographs probably retrieved from the archive of HEC and it is unknown where exactly they were taken.

26.  In Paragraph 5 of the witness statement of Mr Leung[23], it is said that the space around the hanging platform was at least 0.6 metre (600mm) in width. This more or less tallies with the Plaintiff’s own evidence that the metal struts (or tubes) used to erect the scaffold supporting the hanging platform was 600mm in length[24]. Accordingly, I find as a fact that:

(a)  the width of the metal plank forming the hanging platform was about 225 to 250mm, which would be just sufficient for use as a foothold while the Plaintiff was standing on it facing the screen of filters on either side; and

(b)  the body space above hanging platform was more than 250mm but less than 600mm and it might vary slightly depending on the actual dimensions of the filters at a particular spot inside EP 8.

27.  Accordingly, the layout of the workplace was such that a worker like the Plaintiff carrying out the cleaning work while standing on the hanging platform would not be able to change his foothold with ease (by turning 90 degree or adopting a position squarely perpendicular to the running of the hose along the hanging platform) so as to allow him sufficient purchase to haul in and/or manipulate the water hose, which was heavy even when empty and more so when filled with water (see below).

28.  In the course of his evidence, the Plaintiff also demonstrated how he held in his left hand the immediate section of the hose connected to the nozzle dragging it sideways within close quarters as he moved along the hanging platform.

29.  There is no dispute that the Plaintiff worked in tandem with a co-worker, a Nepalese by the nickname of “Kancha”, who would tend to the hose as the Plaintiff moved along the hanging platform. However, the issues remain (a) whether the 1^st Defendant had installed and maintained a safe system of work that might reasonably be expected and required of it; (b) whether the assistance from one co-worker on the hanging platform was sufficient (see below).

Size of the hose and the load to be manually handled

30.  This is another issue of serious contention.  In the Defence, a photograph of the water hose allegedly used is attached (“Hose Photo 1”).  It is the type of red-coloured canvas hose, with a coarse surface, normally used for fire-fighting. In this photograph, the hose was flattened and coiled up.  It is also depicted therein that the width of the hose, measured when flattened, is 60mm on one side. Further, the dimensions of the hose are stated therein to be 1 ½ inch in diameter and 50 feet in length.  A metal nozzle (about 1 feet in length with a lever-operated valve) would be affixed at one end of the hose and a metal coupler was connected at the other end. The weight of the hose was not stated and there was no evidence in this respect.

31.  Mathematically, the width of the hose depicted in Hose Photo 1 corresponds to the description stated therein (ie 60mm 25.4mm/inch x 2 sides  3.14 (1½ inch in diameter, when filled with water[25]).

32.  However, the Plaintiff said the hose he had used on 2 November 2013 was similar in design as that depicted in Hose Photo 1 but it was much larger (ie 75mm to 80mm or about 3 inches in diameter, similar to that used by firemen)[26].  

33.  In his oral evidence, Mr Leung agreed that hoses of larger dimension were available at the Fire Fighting Department of the Power Plant but he disagreed that such hose was used for cleaning the EP Units. However, Mr Leung was not present at the material time on 2 November 2013 and he only did the cleaning work himself once in 2014 at an unidentified EP Unit of the Power Plant.

34.  As the Senior Foreman of the 1^st Defendant, Mr Kwong was expected to have detailed knowledge of the work procedure and the equipment to be used. However, his evidence is less than convincing.  Mr Kwong annexed to his witness statement a photograph purportedly depicting the hose used for cleaning the EP Units[27] (“Hose Photo 2”).

35.  Hose Photo 2 is almost identical to Hose Photo 1 except that the hose is described therein as having a total length of 30 metres (ie 30 x 3.3 = about 100 feet instead of 50 feet as stated in Hose Photo 1). In contrast, in the witness statement of Mr Kwong, the length was stated to be 50 feet[28] (same as that pleaded in Paragraph 5(c) of the Defence). 

36.  In oral evidence, Mr Kwong initially maintained that it was 50 feet. When it was pointed out to him that it would not even be sufficient to reach the end of the passageway inside a chamber, which was already 18 metres or 59.4 feet (let alone covering the length of hose required from the connecting point at the Walkway, through the hatch door, to reach the hanging platform some 8 metres up), he then agreed that it was 30 metre as shown in Hose Photo 2.

37.  Upon further examination by Mr Sakhrani, Mr Kwong suggested that two hoses (each about 50 feet, equivalent to 15 metres, in length) could be joined up to increase the length to 30 metres for use, which however is not what is depicted in Hose Photo 2. In any case, the Plaintiff’s evidence that the overall length of the hose was 50 metres was corroborated by Mr Leung. Accordingly, I find as a fact that the total length of the hose actually used was about 50 metres. Whilst the length of the hose actually used by the Plaintiff may not be relevant by itself, its weight, particularly when filled with water, is of some importance.

38.  No specific evidence was adduced by either party as to which particular chamber(s) of EP 8 the Plaintiff was cleaning on 2 November 2013. A diagram attached to the Plaintiff’s Supplemental Witness Statement suggests that he carried out the work at the third chamber (counting from the bottom end of the Walkway[29]). However, in all likelihood, the Plaintiff worked on more than one chamber on that day.

39.  In Closing Submission, Mr Sakhrani was quite unable to explain to the Court on the 1^st Defendant’s case at which end of hanging platform (above the passageway inside a chamber) the Plaintiff was supposed to start spraying. It matters because the volume (and hence mass) of the water inside the hose to be manually handled would vary according to the length of the hose in use at a particular position along the hanging platform. In the circumstance, I accept the Plaintiff’s evidence that the workers would start at the inner part of the screen of filters (ie end of the passageway) and worked their way outward.

40.  To err on the conservative side, I would assume that the hose used by the Plaintiff was of 1 ½ inch diameter (as asserted by the Mr Kwong and Mr Leung). On the 1^st Defendant’s evidence, in order to reach the end of the hanging platform, the minimum length of the hose needed (measuring from the hatch door at the Walkway) would be about 27 metres (ie 8 metres[30] to cover the height of the hanging platform, 18 metres for the length of the hanging platform and about 1 metre when the nozzle was held at waist level). 

41.  Pausing there, Mr Leung gave evidence that after the 1^st Defendant had become aware of the Plaintiff’s alleged injury, he was tasked by Mr Kwong to investigate and to take photographs. He explained that there were 2 water connecting points on either end of the Walkway, which were marked with “X” on Exhibit D2. Mr Kwong confirmed that Mr Leung took a number of photographs of EP 8 upon his instruction.

42.  Inexplicably, of all the photograph of EP 8 taken by Mr Leung, only one was produced by the 1^st Defendant before the Court. This is the one attached to Mr Leung’s witness statement.[31] Quite apart from the poor quality of the coloured photocopy of this photograph (as opposed to a colour photograph), this only photograph is hardly adequate in depicting the layout of the work site. 

43.  The battle lines were drawn when the Statement of Claim was served on 12 July 2016.  More details were given in the Plaintiff’s witness statement dated 14 March 2017, apparently served on or about 5 May 2017.  No effort was made by Mr Leung or anyone of the 1^st Defendant to provide proper and complete information as to the layout of the work site.

44.  This only photograph (apparently taken on 25 May 2017[32]) shows a hatch door (800mm x 600mm) along the Walkway with an annotation that the “source of water” was 8 metres away. There is no other photograph to show the exact location of the connection point along the Walkway said to be equipped with a subsidiary valve, which is a matter of some importance.

45.  In this respect, Photograph No 2 in Exhibit D2 attached to the Witness Statement of Kwong[33], which is tiny and illegible, purporting to show the water connection point and the subsidiary valve along with Walkway is not any better.

46.  Needless to say, the burden is on the Plaintiff to prove his case. It appears that the 1^st Defendant has consciously adopted a strategy of “letting sleeping dogs lie” and/or putting the Plaintiff to prove. This is a matter for them. However, matters such as the dimensions of the EP Unit, the hanging platform, the hose and hence the volume and the weight of the water to be manually handled can be ascertained from objective evidence.

47.  As explained, the formula for the circumference of a circle is 2. On a rough-and-ready approach, the circumference of the cross-section of the hose is about 0.06m x 2 sides = 0.12m (measuring when flattened[34]).

48.  Hence, the radius of the hose (when filled with water) is 0.12m 3.14 (  2 = 0.0191m (equivalent to 3/4 inch). The formula for the area of a circle is r². Hence, the volume of water inside a length of 27 metres of hose is 3.14 x 0.0191m² x 27m = 0.0309m³. It follows that the mass of water inside 27 metres of hose is 0.0309m³ x 1000 kg/m³ (density of water) = 30.9 kg.

49.  Logically, the load required to be manually handled by the Plaintiff would be heavier than 30.9 kg since the weight of the hose has to be taken into account. Practically, there would need to be some slacks in the running of the hose for the purpose of the spraying work, which would add to the overall length of the hose used and hence the weight to be borne by a worker (such as the Plaintiff) while standing on and moving along the hanging platform inside a filter chamber. To put things in perspective, the mass of water alone inside 30 metres and 50 metres of hose would be about 34.33kg (ie 30.9 x 30/27) and 57.22 kg (ie 30.9kg x 50/27) respectively.

50.  In his Witness Statement, the Plaintiff described the work as “cleaning of filter chambers ... using heavy pressurized water pipe hose”[35]. However, no direct evidence was adduced by either party as to the weight manually handled (or force exerted) by the Plaintiff in the course of the cleaning work done to EP 8 allegedly leading to the injury to his left hand.

51.  That said, in a medical note (dated 8 January 2014) entered by a physiotherapist of Pok Oi Hospital (“POH”), where the Plaintiff received treatment for his injury, it is documented:

“Hx (History) : IOD (Injury on duty) on 2 Nov 2013 with Left Wrist Injury after weight lifting (heavy water hosepipe ~ 70 to 80 kg) [36]”

52.  By and large, the magnitude of the weight given by the Plaintiff tallies with the calculations of 30.9 kg to 57.22 kg above solely on account of the volume of water in the hose. To be fair, the Plaintiff was not suggesting that he was lifting 70 to 80 kg of weight all by himself.  Naturally, the weight would be partly borne by the hanging platform and/or his co-worker, who was three to five metres away from him on the hanging platform[37].

53.  However, it does not detract from the fact that in the course of the cleaning work, the Plaintiff had to drag the heavy hose horizontally (or sideways) with his left hand while he was standing on the hanging platform with his right hand holding the nozzle[38].

54.  Just to get rid of a short point, the Plaintiff’s allegation that the water pipe was “very high (sic) pressurized[39]” or that “the pressurized hose pipe became tight and very heavy[40]” does not add much to the analysis. There is no expert evidence to this effect.

55.  Mr Kwong was careful enough to explain that the flow (as opposed to pressure) of water in the pipe was larger at the main valve some 300 metres away (see below).  However, this is all relative. Understandably, like in any water distribution system, the piping distant from the EP Unit would be larger as reflected in the size of the valve thereat. Upon approaching the EP Unit, the piping would be smaller so as to maintain an adequate level of water pressure.

56.  As a matter of common sense, in order for the water jet to reach the ceiling (about 8 metres above the hanging platform), the water in the hose had to be of sufficient pressure. That said, there is no suggestion that the recoil of the water jet was such that the Plaintiff was unable to hold the nozzle with only his right hand. However, it does not detract from the fact that the Plaintiff would only have his left hand to manipulate the hose within the close quarters of the hanging platform.

57.  Hence, the work environment was not ergonomically ideal. As said, the foothold at the hanging platform was only about 225mm to 250mm and the body space above was slightly less then 600mm.

58.  In my view, the exact weight handled by the Plaintiff at any particular point along the hanging platform is unimportant. Rather, the safe system of work expected and required of the 1^st Defendant would have to take into account the fact that workers (such as the Plaintiff) would be manually handling substantial weight, while standing on the hanging platform with limited manoeuvrability.

59.  On the foregoing analysis, I agree that the Plaintiff was working in an “awkward” position as pleaded in the Statement of Claim[41] in the sense that the physical work environment was not ergonomically sound.

EVENTS LEADING TO THE PLAINTIFF’S INJURY

60.  In brief, the Plaintiff gave evidence that his main work involved the assembling of metal scaffold whereas the actual cleaning work of the EP Units was only assigned to him on sporadic occasions.  This tallies with the evidence of Mr Kwong that it depended on whether the 1^st Defendant was successful in bidding for the contract from HEC in a particular year.

61.  In essence, the Plaintiff’s evidence[42] was that he had not been given any training pertinent to the cleaning work. On 2 November 2013, he was assigned to work in tandem with Kancha. After they were in position on the hanging platform at about 8:30 am, the water in the hose was turned on and kept running until lunch break.

62.  The Plaintiff also said that since they were not equipped with any walkie-talkie (which in any event would be ineffectual for communication due to the ambient noise inside the chamber), there was no way to communicate with people outside. There was no worker stationed at the Walkway to operate the subsidiary valve at the connection point.  Control of the water supplied was done by a Chinese man at the main valve some 300 metres away.

63.  The Plaintiff said he was the one carrying the nozzle to do the cleaning work all morning until 12:00 noon[43]. The water was kept running as the workers had been instructed not to use the lever-operated valve at the nozzle for fear of the back pressure which might cause the hose to burst. 

64.  In oral evidence, the Plaintiff demonstrated how he carried out the spraying as aforesaid. He also explained there was not enough space to swap position with Kancha in the morning.  In cross-examination, the Plaintiff accepted that he was the one tending to the hose in the afternoon, implying that Kancha was doing the actual spraying.

65.  The Plaintiff said after the cleaning work carried out at EP 8, his left forearm was sore and painful but he thought the pain was momentary and that the pain and burning sensation would subside in moments. He did not immediately report an injury or accident as he did not realize how severe it was at the material time.  He rested at home on 3 and 4 November 2013. During these 2 days, he felt pain in his forearm and it became very tired and fatigued. It was difficult for him to lift everyday objects or materials[44].

66.  Eventually, the Plaintiff attended the Accident and Emergency Department of POH on 5 November 2013 and was admitted on the differential diagnosis of “peripheral neuropathy” upon presentation with left wrist drop, failure to extend left wrist and fingers and reduced pin prink sensation over the left forearm. 

67.  He was admitted for treatment and was diagnosed with Radial Nerve Palsy (“RNP”) in the left hand. He was discharged on 7 November 2013 with follow-up appointments at the Orthopaedic Department and prescriptions for occupational therapy and physiotherapy. 

68.  Along the clinical course, the Plaintiff was referred to the Orthopaedic Department of Tuen Mun Hospital (in the same cluster as POH in New Territories West).  On the basis of certain findings upon the Nerve Conduction Test (NCT) and Electromyography (EMG) performed on 17 March 2014, the diagnosis was revised to one of Posterior Interosseous Nerve Palsy (“PIN Palsy”).

69.  Much has been said by Dr Law Yee Cheong Wally (Orthopaedic Expert of the 1^st Defendant) about the significant difference between RNP and PIN Palsy as a matter of diagnosis (see below). On the strength of Dr Law’s opinion, Mr Sakhrani sought to (a) mount a full-blown attack on the veracity of the Plaintiff’s case based on the inconsistencies in the presentation of Plaintiff’s symptoms; and (b) argue the lack of foreseeability of the nerve injury, which was said to be necessary to give rise to a duty of care and/or prove causation. I will deal with these issues in the latter part of this judgment.

70.  Suffice it to say that even in the opinion of Dr Law, the Plaintiff “most likely had a strained fatigue of his left forearm musculature after prolonged manipulation of the water hose” on 2 November 2013[45].

THE PLEADINGS

71.  The Plaintiff’s claim is framed on the bases of Negligence, Breach of Statutory Duty (under s 6 of the Occupational Safety and Health Ordinance, Cap 509), Breach of Contract of Employment and Breach of Common Duty of Care (under s 3 of the Occupiers’ Liability Ordinance, Cap 314).

72.  Just to get rid of a short point, the injury sustained by the Plaintiff has nothing to do with the physical state of the premises of the EP 8 in the sense of “occupancy duty” pertinent to occupier’s liability. Hence, the plea of breach of common duty of care is not relevant and unnecessary. Mr Sadhwani, appearing for the Plaintiff, did not press the point and rightly so.

73.  In the Statement of Claim, it is pleaded as follows:

“5. On 2^nd November 2013, the Plaintiff was instructed to clean the filters inside gas chamber (“EP Unit”) at the Site using a very high (sic) pressurized water pipe hose. . .Access to the filters was through a confined and narrow gap between the filters. Access to this gap and movement within this gap were so limited and restricted that the Plaintiff could only walk sideways. In addition, the main water source on/off tap was located far from the Plaintiff and was controlled by another worker who as not contactable either by voice or audio. As a result once the water tap was switched on to start the cleaning of the filters, the Plaintiff was forced to hold the said pressurized pipe for a long duration whilst at the same time having to move to various locations whilst walking in an awkward position. As a result of the Plaintiff having to continuously hold the said pressurized pipe in the said conditions for a long period, the Plaintiff’s left arm suffered left radial nerve palsy (“the said accident”)

6. The said accident was wholly caused and/or occasioned by the negligence and/or breach of statutory duty and/or breach of common duty of care of the Defendant and/or its employees and/or servants and/or agents and/or each of them.

A. Particulars of the Negligence

(a) Failing to take any or any proper and/or sufficient precautions to ensure that the Plaintiff would be safe whilst carrying out his duties at the Site;

(b) Exposing the Plaintiff, whilst he was working at the Site, to a risk of injury to which the Defendant, and/or its employees and/or servants and/or agent knew or ought to have known;

(c) Failing to provide a safe place of work;

(d) Failing to provide a safe means of access and egress to the filters of EP Unit;

(e) Failing to devise and/or implement a safe system of cleaning the filters of EP Unit for the Plaintiff;

(f) Failing to provide a safe method of cleaning an area which is a confined and narrow space.

(g) Failing to provide appropriate instruction, training and supervision to the Plaintiff on the safe performance of his work;

(h) Failing to provide safe and proper equipment for the Plaintiff to use in carrying out his work such telecommunication devises [as] to communicate with the co-worker tasked to turn off the water source;

(i) Failing to provide sufficient assistance of co-workers to the Plaintiff;

(j) Instructing, causing and/or permitting the Plaintiff to use unsafe methods to carry out his work;

(k) Instructing, causing and/or permitting the Plaintiff to clean the filters when it knew or ought to have known that the Plaintiff was not suitable for task; and

(l) Failing to conduct a personal assessment as to the suitability of the Plaintiff to carry out the task in hand.

B. Breaches of Statutory Duty by the Defendant

By the Defendant

(a) failing to provide or maintain plant and systems of work that were so far as reasonably practicable safe and without risks to health contrary to section 6(2)(a) of OSHO;

(b) failing to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances contrary to section 6(2)(6) of OSHO;

(c) failing to provide such information, instruction, training and/or supervision as was necessary to ensure the safety and health at work of the Plaintiff contrary to Section 6(2)(c) of the OSHO;

(d) failing to provide or maintain means of access to and egress from the work place on the Site that was safe and without any such risks contrary to Sections 6(2)(d)(ii) of the OSHO.

C Particulars of Breach of Contract of Employment

The Plaintiff repeats paragraph 6A and B above.

74.  In his Opening Submission, Mr Sakhrani criticized the lack of particulars in the Statement of Claim as to details of the safe system of work, which the 1^st Defendant was alleged to have failed to devise and implement. On the face of it, there is some force in this submission. However, I observe the 1^st Defendant has not requested for any further and better particulars.

75.  More importantly, the 1^st Defendant is not prejudiced and they were quite capable of pleading a case as to the system of work.  In particular, it is pleaded in the Defence as follows:

“5. The 1st Defendant avers that:

a) The water pipe hose used by the Plaintiff was an ordinary one, not "a very high pressurized water pipe hose". Exhibit 1 attached hereto is a photo of the water pipe hose used in the Site.

b) There was a scaffold constructed inside the gas chamber to allow access to the filters by workers, including the Plaintiff. The passageway of the scaffold measured 600 mm in width. An adult male with normal build could access at ease.

c) The length of the water hose was about 50 feet. As such,the distance between the Plaintiff and his co-worker who control the water tap was only about 50 feet. The EP Unit was very quiet. With a distance of about 50 feet, one could easily communicate with his co-workers by shouting. Besides, walkie talkies were provided to the Plaintiff and his teammates to facilitate communication.

d) There was a control valve at the opening of the hose. The one who performed the cleaning controlled the release of water.

e) 3 to 4 workers were assigned to work in a team. 1 worker switched on and off the water tap, 1 worker held the opening of the water hose to clean the filters, 1-2 workers held the water hose during the cleaning process.

f) After the filters were cleaned in an area, the team would move to another area. The workers who controlled the water tap would switch off the water supply before the move. The weight of the water hose was thus reduced. The 1-2 workers who held the water hose would move and settle the water hose to another area. The worker who performed the cleaning would take a short break. When the workers were ready to start the cleaning process in the new area, they notified the co-worker to switch on the tap.

g) There were expressed instructions from the 1st Defendant that the team members must swap for each position according to their needs.

h) There was no time pressure on the cleaning work at the EP Unit.

i) The Plaintiff had performed the filter cleaning work at the EP Unit with his teammates many times prior to his alleged accident.He was familiar with the work procedures. He was free to swap duties with his teammates. There was simply no need for any single worker to hold the water hose for long period of time.

j) Workers were allowed to have breaks at any time when they considered necessary.” (emphasis added)

THE LAW

Duty of Care of Employer

76.  It is trite law that as the employer, the 1^st Defendant owed a non-delegable duty to provide the Plaintiff with a safe system of work, a safe place of work and safe tools with which to do the work. Further, the employer’s duty extends, where necessary, to a single operation for the sake of safety (see Charlesworth & Percy on Negligence (14^th Ed) at Paras 12-24).

77.  The starting position is the often-cited ratio of Lord Oaksey in Winter v Cardiff Rural District Council [1950] 1 All ER 819 (at 822 to 823)that:

“In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. ... where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.” (emphasis added)

78.  In General Cleaning Contractors Ltd v Christmas [1953] AC 180 (at 189 – 190 and 194), Lord Oaksey stated that:

“... it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. ... It is ... for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.”

“No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.”

79.  An employer’s duty to take reasonable care in carrying out his operation so as not to subject his employees to unnecessary risks in all the circumstances is a personal duty owed to each employee (see Paris v Stepney Borough Council [1951] 1 All ER 42 (HL) at 50, per Lord Oaksey and Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265 (CA) at 272, per Parker LJ).

80.  Likewise, the implied term under a contract of employment obliges the employer to take reasonable care for the employee’s safety (see Smith v Baker & Sons [1891] AC 325 (HL)). An employer’s duty of care under the law of negligence and contract of employment will rise and fall together (see Yuen Yiu Kwong v Chan Kwok Chuen & Ors HCPI 1356/1999 (unreported), Mr Recorder Edward Chan SC, 20 December 2002 (at paragraph 21) and Matthews v Kuwait Bechtel Corpn [1959] 2 All ER 345).

81.  In the context of manual handling work, Cheung J (as he then was) held in Lai Wah Wai v Castco Testing Center Ltd [1996] 2 HKC 44 that:

“The standard of an employer’s duty towards his employee is to see that reasonable care is taken; the scope of that duty extends to the provision of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work. (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57.)”

82.  Cheung J continued to explain that:

“A system of work is the term used to describe:

(1) the organization of the work;

(2) the way in which it is intended the work shall be carried out;

(3) the giving of adequate instructions (especially to inexperienced workers);

(4) the sequence of event;

(5) the taking of precautions for the safety of the workers and at what stage;

(6) the number of such persons required to do the job;

(7) the part to be taken by each of the various persons employed;and

(8) the moment at which they shall perform their respective tasks.

(Paragraph 10-59 Charlesworth & Percy on Negligence (8^th Ed) [c.f. Para. 12-78 in the 14^th Ed.].)”

83.  The Plaintiff pleads breach of statutory duty by reference to the general provisions under s 6 of the Occupational Safety and Health Ordinance (Cap 509) without reference to the provisions concerning “Manual Handling Operations” under Part VII of the Occupational Safety and Health Regulation (Cap 509A).

84.  However, it does not detect from the fact that the 1^st Defendant’s obligations under the law of negligence and Occupational Safety and Health Ordinance (Cap 509) are co-extensive (see DHCJ Fung (as he then was) in Lam Wai Chi v Project Concern Hong Kong, unrep, HCPI 78/2002, 10 April 2013 (at §48) approved by Fok JA (as he then was) in Rashad Muhammad v Gurung Amrit Singh trading as FEWA Company, CACV 165/2010, unrep, 8 July 2011 (at §33).

85.  That said, I accept the submission of Mr Sakhrani that the statutory duty under s 6 of Cap 509 is not absolute and the 1^st Defendant was only obliged to put in place a safe system of work “by reference to risks that were reasonably foreseeable according to knowledge available” at the material time of the incident or injury (see DHCJ Marlene Ng (as she then was) in Heung Wing Yan v Hangway Housing Management Limited, HCPI 347/2012, unrep, 14 October 2016 (at §§50 to 44) distinguishing Leung Kin Fai v IDS Logistics (Hong Kong) Limited [2010] 3 HKLRD 267, which was relied upon by Mr Sadhwani).

86.  In the final analysis, this case turns on (a) the dispute as to what in fact was the system of work, if any, installed and implemented by the 1^st Defendant and (b) the question as to whether such system of work would be adequate to avert the foreseeable risk of injury attendant upon manual handling operation of the sort undertaken by the workers of the 1^st Defendant in cleaning the EP Units at the Power Plant.

Foreseeable Risk

87.  An unnecessary risk is “any risk that the employer can reasonably foresee and which he can guard against by any measures, the convenience and expense of which are not entirely disproportionate to the risk involved” (see Harris v Brights Asphalt Contractors Ltd [1953] 1 WLR 341 at 344).

88.  In Charlesworth & Percy on Negligence (14^th Ed), the well-settled general proposition relating to foreseeability is stated (at §§5-128 to 129) as follows:

“General proposition : Although uncertainty is inherent in the remoteness inquiry, some general propositions are possible. The defendant is liable for all damages of a kind that was foreseeable, given the scope of the duty of which he was in breach. And so long as the damage is of a kind that was reasonably foreseeable, it is not necessary that the precise mechanism by which the damage was caused was foreseeable. Again, the wrongdoer is liable for foreseeable damage even though its full extent may not have been capable of anticipation. In cases where the amount of damage is exacerbated by the claimant’s existing physical, mental or financial state, the defendant takes the claimant as he finds him, once again, must pay the full amount of damage.

(i) Personal injuries

Mode of infliction of injury : As a general rule the courts have not sought to distinguish between different kind of injury to human body. If personal injury of some kind is foreseeable then the damage usually will not be regarded as too remote, notwithstanding that the injury came about in some unforeseeable way or that the particular form of personal injury was unexpected or unforeseeable.” (emphasis added)

89.  The learned author then refers to the case of McSherry v British Communication plc [1992] 3 Med LR 129 in which Judge Byrt QC said (at 147) that:

“Further, it is sufficient in law if the tortfeasor should reasonably have foreseen that his breach of duty was likely to cause injury within the broad category of injury which was in fact caused : Hughes v Lord Advocate[46] [1963] 1 All ER 705. As I have found, I am satisfied that bad posture would cause musculoskeletal problems. The fact that the injuries were more extensive than those they might have envisaged is of no consequence in law.” (emphasis added)

90.  In the course of oral Closing Submission, Mr Sakhrani was invited to address the question as to why foreseeability of musculoskeletal injury (as opposed to a particular neuropathy) was said to be insufficient to attract liability.

91.  On the strength of authorities including Riddick v Weir Housing Corporation Limited (1971) SLT 24 (dermatitis contracted through exposure to cement), James Henry Jospeh v Ministry of Defence, 1980 WL 149403, 29 February 1980 (Vibration-Induced White Finger  (VWF) in riveter and caulker); Heyes v Pilkington Glass Limited [1998] 1 PIQR 303 (VWF from operating a crane) and Adrian Bowe v Mersey Rewinds Engineering Ltd & Ors 2018 WL 00604831, 31 January 2018 (VWF from operating tools), Mr Sakhrani argued (at §62 of the 1^st Defendant’s Closing Submission) that:

“the law requires that the case on the facts be dismissed as it was not demonstrated that (a) the state of knowledge as to the nature and extent of the risk was sufficiently clear and certain; (b) this particular task created a risk of upper limb neuropathy; (c) the Plaintiff had an anatomical variant or susceptibility and was at risk; (d) the alleged risk was sufficiently widely publicized and known; and (e) the 1^st Defendant failed to take precaution that were known to prevent injury.”

92.  Mr Sakhrani also emphasized that neither RNP nor PIN Palsy was listed as an occupation disease under Second Schedule to the Employees’ Compensation Ordinance (Cap 282) in support of his argument that the neuropathy was not foreseeable.

93.  This argument of Mr Sakhrani is disarmingly attractive in light of the expert evidence of Dr Law and Dr Wong Chin Hong, Orthopaedic Expert for the Plaintiff, that while neuropathy in the upper arm (such as RNP and PIN Palsy) had been reported in some medical literature documenting anecdotal cases, where the sufferers were invariably involved in strenuous work or activities before onset of the injury, the aetiology or cause was not well known.

94.  By way of example, it was postulated that a “sudden, violent contraction of the triceps muscle. . .was an additional and necessary injury mechanism to cause the radial neuropathy” (see Erich Streib, Upper arm radial nerve palsy after muscular effort: Report of three cases, Neurology 1992;42:1632, at 1634).

95.  Likewise, the cause of PIN was said to be speculative in most cases and it was not shown to be associated with any particular occupation. It was suggested that the cause was replacement fibrosis secondary to local ischaemic damage from unremembered minor trauma and it was believed to be attributable to a space occupying lesion near the elbow along the course of the nerve thus compressing it (see R.C Muholland, Non-Traumatic Progressive Paralysis of the Posterior Interosseous Nerve, Journal of Bone and Joint Surgery (1996), 781 at 785).

96.  A number of “Work-related musculo-skeletal disorders” in the upper limbs, mainly with insidious onset after repetitive work, are now covered by statutes. However it does affect the analysis of liability for musculo-skeletal disorders arising from, for instance, Manual Handling Operation (see Munkman on Employer’s Liability (17^th Ed.) at §19.17). 

97.  Although not specifically referred to, Manual Handling Operation is now provided for in Part VII of the Occupational Safety and Health Regulations (Cap 509A). As explained, the statutory duties are co-extensive with the 1^st Defendant’s common law duty. The lack of specific pleading with reference to the regulations does not subtract anything from the Plaintiff’s case (see Paragraph 84 above). 

98.  In the context of minimizing risk of injury in Manual Handling Operation, Munkman (at §25-42) refers to the case of Koonjul v Thameslink Healthcare Services [2000] PIQR P123 (at 126) wherein Hale LJ (as Baroness Hale then was) explained:

“. . .there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees safety which they might not otherwise have.

However, in making such assessments there has to be an element of realism. . . It also seems to me clear to be that the question of what does involve a risk of injury must be context-based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved.” (emphasis added).

99.  In the realm of medical science, lacunae in the knowledge as to the aetiology of diseases or mechanisms of injures do exist and will continue to exist. However, the question as to whether a particular work procedure entails of foreseeable risk of injury is a matter for court (see Munkman (supra) at §25.79). In so deciding, the Court is guided by judicial common sense with the assistance of medical opinion but not dictated by it. 

100.  On the facts of this case, I am satisfied that the Plaintiff was required to carry out strenuous work involving manual handling of the heavy water hose in an awkward position while standing on the hanging platform within close quarters of the passageway of the chambers within EP 8 and was thereby exposed to the foreseeable risk of musculoskeletal injury. The fact that the precise mechanism or aetiology of the neuropathy in the left arm suffered by him was unknown, even to medical doctors, at the material time is immaterial. 

FINDING OF FACTS

101.  Given Mr Leung’s evidence that he was tasked by the management of the 1^st Defendant to investigate upon receipt of the report of injury made by the Plaintiff in or about December 2013, it is extraordinary that 1^st Defendant’s legal representatives did not seem to have ascertained and/or verified the identities of the foreman-in-charge and the two teams of workers involved in the cleaning of EP 8 on the day in question, who would be obvious witnesses as to the system of work adopted by the 1^st Defendant on that day.

102.  In particular, Mr Kwong claimed that he witnessed training and/or instructions for the cleaning work being given to the Plaintiff by the foreman during the so-called tool-box meeting held in the morning at the office of the 1^st Defendant at Power Plant, which was located near EP 8. However, he was unable to recall the foreman without reference to the attendance record. Mr Kwong also claimed that he had made enquiry of the relevant foreman and the co-workers but was told that they had no knowledge of the Plaintiff’s accident. Against this background, it is inexplicable that no mention of the fact of such enquiry was made in his witness statement and no effort was made by the 1^st Defendant to make discovery of the attendance record[47].

103.  Further, it is the 1^st Defendant’s case and Mr Kwong was adamant that apart from the two workers on the hanging platform inside the filtering chamber, there would be a third worker in each of the two teams cleaning EP 8 on the day in question. It is said that this third worker would attend the subsidiary valve located at the water connection point(s) along the Walkway and dutifully respond to the communication received from time to time over walkie-talkie by shutting or opening the valve, as the case might be, to facilitate draining of water out of the nozzle of the hose, thereby reducing the weight of the section of the hose handled by the two workers on the hanging platform. 

104.  This part of the case was seriously contested by the Plaintiff in that (a) no such third worker was deployed at all; (b) no walkie talkie was provided, which in any event would be ineffectual or inappropriate due to the loud ambient noise inside the chambers from water splashes and for fear of water damage to the walkie-talkies.

105.  In all circumstances, the 1^st Defendant may reasonably be expected to call the foreman and other co-worker(s) in the two teams to give evidence, there being no suggestion that they could not be contacted. Further, it transpired in the course of the trial that there was supposed to be Technically Competent Person(s) employed by the 1^st Defendant as Safety Officer(s) on site. No credible explanation was proffered by the 1^st Defendant as to why none of these witnesses were called to give evidence. In contrast, the Plaintiff explained that he did not have the phone number of Kancha and he did not know where to locate him.

106.  In the premises, the Court is entitled to draw inference that the evidence that may be given by those potential witnesses would be adverse to the case of the 1^st Defendant (see DHCJ Horace Wong SC in Lai Cheong Ming v Cheng Chung Yu Eric trading as Hui Fung Metal Work factory & Anor, HCPI 504/2009, Unrep, 7 January 2013 at §25 applying the principles set out by Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] PIQR 324, at 340)

107.  As to the assessment of credibility of witnesses, I respectfully adopt the approach enunciated by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (unreported), 8 April 2014 (at Paragraphs 77 to 81).

108.  Mr Kwong has worked for Mr Liang senior of the 1^st Defendant since 1985. No doubt, he is a trusted Senior Foreman and a loyal employee of the 1^st Defendant. Although Mr Kwong may not be well qualified academically, he is certainly an intelligent person with plentiful of experience in engineering and maintenance work.

109.  Lamentably, Mr Kwong came across as an evasive witness who was prepared to say whatever was convenient to suit the purpose of the defence case.  He claimed to have personally given instruction to the Plaintiff as to how he should go about using the hose, operating the nozzle for the cleaning work and swapping positions with the other worker(s) as they went along, whereas in fact he had no recollection of training the Plaintiff.

110.  Mr Kwong also painted the picture that if a third worker in a team were not available on a particular day, he would go so far as to call off the cleaning work altogether since there was no urgency in the work[48].  This is unbelievable. In any case, Mr Leung’s evidence was that the work would be carried out during down time of the relevant EP Unit in accordance with a work schedule as agreed between HEC and the 1^st Defendant pursuant to a contact for the work and four days were allocated for the cleaning of one EP Unit.

111.  Mr Kwong claimed that a risk assessment had been carried out in fulfilment of the requirement of HEC.  Reference was also made to the 1-page illustration from HEC attached the witness statement of Mr Leung[49]. However, no document evidencing the risk assessment and the scope thereof was produced by the 1^st Defendant. It is doubtful whether such risk assessment, if any, would be detailed enough to cover the risk of manual handling of the heavy hose in close quarters inside the chambers.

112.  Mr Kwong also said representatives of the HEC would visit the chambers in the course of the cleaning work to carry out inspection.  However, no inspection report was produced and it is unknown whether the inspections extended to assessment of the risks of injury attendant upon manual handling at all.

113.  Apparently, Mr Kwong also said that a risk assessment must have been done since the filtering chamber constituted a “confined space”, which is a reference to the provisions under of Factories and Industrial Undertakings (Confined Spaces) Regulation (Cap 59AE). In this regard, it is unknown whether the Plaintiff was a certified worker in confined space within the meaning of r 4(1) of Cap 59AE[50].

114.  However, it is clear from Clause 1 of the Basic Safety Guide attached to the Plaintiff’s contract of employment[51] that the concern of HEC was “lack of fresh air” in such confined spaces (as opposed to risk of musculoskeletal injury arising from heavy manual handling).

115.  At one stage, Mr Kwong even claimed that the HEC inspector also witnessed the training specific to the cleaning work being given to the workers before commencement of work in the morning. This is not mentioned in his witness statement and is diametrically opposite to the rather blasé attitude adopted by the 1^st Defendant as described by Mr Leung (see below). This is a hallmark of the tendency of Mr Kwong to embellish his evidence as he went along in the witness box.

116.  As to the evidence of Mr Leung, it seems unusual that as a holder of certain post-secondary qualification with some training in engineering, he was employed merely as a “general labourer” by the 1^st Defendant. In any case, Mr Leung explained that the so-called daily tool-box meeting concerned general reminder of safety aspects (such as wearing of safety belt) and the material to be covered was contained in no more than half a page of a document whereon the 60 or 70 workers (including 30 to 40 Nepalese) gathering in the morning at the 1^st Defendant’s office would be required to sign to acknowledge.

117.  Admittedly, Mr Leung had only been involved in cleaning of the filtering chambers on one occasion in 2014. He was not present with the Plaintiff or the two teams of workers on 2 November 2013.  Nonetheless, Mr Leung was able to say that in his experience there was no specific training on safety aspect pertinent to the cleaning of the chambers, which was regarded as a straightforward task and the workers were left to decide between themselves on the division of labour.

118.  This came as no surprise since Mr Kwong suggested that the hose was not heavy even with water inside.  Later in his evidence, it became clear that Mr Kwong in fact had never worked a shift inside any of the filtering chambers.

119.  Looking at the evidence in the round, I reject the 1^st Defendant’s case that workers (such as the Plaintiff) were instructed to swap position or to take a break from time to time as and when the hose was moved from one location to another along the hanging platform for the reasons set out hereinbelow.

120.  Each team was required to clean the filters inside 2 filtering chambers in one morning. On the Plaintiff’s evidence, he worked from about 8:30 am to 11:45 am (ie 3 ¼ hours). In contrast, Mr Kwong and Mr Leung painted the picture that it would be from 9:00 am 11:15 am (ie 2 ¼ hours only) when the workers would stop work and prepare for lunch. Notably, the Plaintiff’s contractual working hours were from 8:00 am to 11:45 am for the morning session.

121.  The 1^st Defendant argued that filtering chambers located at either end of a bank of 4 filter chambers would only have filters on one side of the hanging platform (instead of 2 sides as in the case of the 2 filtering chambers in the middle of the bank). Therefore, less time would be required. The Plaintiff’s evidence was that even in a chamber where there was a screen of filters only on one side of the hanging platform, the opposite side would be occupied by a metal structure like a mesh, which would be caked up with dust and also needed to be washed. Hence, it did not necessarily shorten the total time for cleaning the chamber.

122.  Whichever way one looks at it, a team of workers would have to clean at least 3 screens of filters (2 plus 1) in 2 chambers in the morning. Mr Leung said that cleaning a screen of filters on one side of the hanging platform would take about 45 to 60 minutes.

123.  As explained, the passageway and the hanging platform was 18 metres in length. Such is also the length of the screen of the vertically hanging filters on one side or both sides of the hanging platform, as the case may be, to be cleaned by 2 persons working in tandem.

124.  There was no evidence adduced by the 1^st Defendant as to the exact sequence of cleaning, in particular, from which end of the hanging platform workers (such as the Plaintiff) was supposed to start. The Plaintiff said they would normally start from the inner part of the screen of filters and worked their way out. This is probably wise since the length of the hose lying on the hanging platform could be gradually reduced by dropping the slack down the end of the hanging platform thus reducing the load to be manually handled.    

125.  On the 1^st Defendant’s case, the worker tending the hose on the hanging platform was required to inform the third worker stationed at the Walkway by walkie talkie when to shut the valve to allow water in the hose to be drained through the nozzle before being moved to another spot along the hanging platform.

126.  It has to be borne in mind that the hanging platform was some 8 metres above the floor of the chambers (ie also the minimum length of hose to cover this vertical distance) and there was at least another 8 metres of hose (filled with water) lying between the hatch door and the water connection point at the Walkway. There is nothing to suggest that the workers were supposed to lower the section of the hose with the nozzle from the hanging platform onto the floor of chambers for drainage of the water to facilitate moving. Hence, there would always be at least 16 metres of hose with water in it.

127.  In this scenario, even if the water supply were turned off, by whatever means, and the two workers, having finished cleaning one screen of filters in a chamber, were to re-locate the hose from the outer end of the hanging platform to the inner part to prepare for cleaning of the filters (or metal mesh) on the opposite side, there would always be the weight equivalent to at least 16 metres of water inside the hose (plus the weight of the hose) to be manually handled. 

128.  Importantly, there is no evidence to suggest that the work procedure would involve, for instance, the application of a hook or sling to affix the vertical section of the hose to the scaffold for weight bearing so that the worker tending the hose on the hanging platform would have his hands free thereby enabling him stay close to the worker holding the nozzle to spray (such as the Plaintiff) and to render timely assistance.

129.  I accept the Plaintiff’s evidence that Kancha was about 3 to 5 metres away from him in handling the hose. It is not difficult to imagine that Kancha could only payoff or haul in a length of hose, as the case may be, in approximation to suit the progress of work but the precise positioning of the last length of the hose attached to the nozzle had to be done by the Plaintiff.

130.  Further, there is no evidence as to how the water was supposed to be drained out through the nozzle, for instance, whether such process would entail one or more of the workers stepping or pressing on the section of the hose presumably lying on the hanging platform. Bearing in mind the weight of the vertical column of water inside the section of the hose (at least 8 metres) dropping down from the edge of hanging platform, the drainage of water from the hose would be a rather cumbersome process.

131.  If this cumbersome process was to be repeated every few metres along the hanging platform of a filtering chamber during the cleaning process (ie stopping every few metres or 5 to 6 times along the length of 18 metres), it is doubtful whether the 45 minutes allowed for cleaning one screen of filters or 2¼ hours per morning session allowed for cleaning 2 chambers would be sufficient. Further, the time for the workers to disengage and re-engage the carabiner of the safety harness has also to be taken into account.

132.  On balance, I accept the Plaintiff’s evidence that there was not a third worker stationed at the Walkway the whole time to turn the valve off and on as requested. Further, the water supplied was left running while one chamber was being cleaned. 

133.  In this connection, one cannot fail to notice the vagueness in the 1^st Defendant’s pleaded case as to the number of workers in a team.  It is pleaded that there were 3 to 4 workers in each team. Putting the evidence of Mr Kwong and Mr Leung at its highest, there were only 3 workers in a team.

134.  It may be the case that the foreman or another workman was available to help connect the hose at the inception of work in the morning or when a team of workers moved from one chamber to another but that is insufficient to discharge the 1^st Defendant’s duty to provide a safe system of work.

135.  It is more probable than not that an additional pair of hands would make a significant difference from the perspective of manual handling of the heavy hose by the Plaintiff while on the hanging platform. Assuming an additional worker was deployed or that the work procedure was designed in such a way that Kancha, who was tending the hose, would have a free pair of hands enabling him to stay right next to the Plaintiff most of the time to assist in adjusting the hose, it would obviate the need for the Plaintiff to adopt an awkward position of holding the hose in his left hand and dragging it sideways to move it along the hanging platform.

136.  Accordingly, I find as a fact that there was only Kancha in the Plaintiff’s team during the actual cleaning work carried out inside EP 8 on 2 November 2013. On the Plaintiff’s evidence, which I accept, there was probably another worker, whether a Nepalese or Chinese at the Walkway to assist in setting up the hose some of the time but he was not there to operate the subsidiary valve as suggested by the 1^st Defendant.

137.  Further, in so far as the design of the 1^st Defendant’s system of work would entail deployment of a third (or fourth) worker to the Plaintiff’s team at all times, I find that the 1^st Defendant failed to properly implement its system of work on the occasion of 2 November 2013. In this respect, the absence of any evidence from the foreman or co-workers without any proper explanation is all the more glaring.

138.  In the premises, I find that the 1^st Defendant is in breach of its various duties of care owed to the Plaintiff pleaded in paragraph 6 of the Statement of Claim (as set out in paragraph 73 hereinabove) save and except particulars under sub-paragraphs 6A(h) & (k) thereof which are either irrelevant or unproven.

139.  For the sake of completeness, the availability or otherwise of walkie-talkies is a red herring. I reject the Plaintiff’s evidence that the exhaust fan of the chamber being clean or other machinery inside EP 8 was operating at the material time. However, it is probable that the noise created by the spraying and the fear of water damage would render walkie-talkie not a proper equipment for communication.

140.  Further, on Mr Kwong’s evidence the machinery of the nearby EP Unit(s) were in operation. This might add to the ambient noise rendering the use of walkie-talkie ineffectual although it might not be of such intensity as to dictate the use of earmuffs.

141.  Mr Leung said there were about 10 odd walkie-talkies at the office of the 1^st Defendant at the Power Plant. These walkie-talkies were capable of operating on different channels and would also be used by other workers carrying out various types of other work around the Power Plant.

142.  Mr Leung said he was just one of the workers in a team on the only occasion he participated in the similar cleaning work. However, he took it upon himself to draw 4 of the 10 odd walkie-talkies and distributed them for use by the 2 teams of workers. Notably, until clarified by the Court, he did not volunteer that the workers in the 2 teams would be briefed on the different channels to be used to avoid conflicting or overlapping communications.

143.  When it came to the evidence of Mr Kwong, he initially suggested that 3 walkie-talkies would be issued for use by the 2 teams. His evidence implies that each team would take one walkie-talkie inside the chamber to be cleaned and there would only be one walkie-talkie left for used by whosoever stationed at the Walkway to serve both teams. If that is the case, there seems not much point in having a third worker designated to each team as suggested by the 1^st Defendant.

144.  Upon further questioning, Mr Kwong changed his evidence in that each team would be issued with 3 walkie-talkies, one to be taken inside the chamber by the 2 workers, one for the worker stationed at the Walkway and one for spare.  In so far as it is suggested that this a matter of routine practice, this is not believable given that the walkie-talkies would need to be used by other workers (some 50 to 60 of them) of the 1^st Defendant around the Power Plant.

145.  Further, Mr Leung said a worker was left to his own choice of clipping a walkie-talkie to his belt or holding it in his hand. The evidence was that the walkie-talkies did not come with standard waterproof accoutrement for carriage and prevention of water damage.

146.  Mr Kwong even suggested that workers might wrap the walkie-talkie in a plastic bag.  If that is the case, I wonder how useful it would be given the ambient noise inside the chamber. If anything, the evidence tends to show that walkie-talkies were just available at the 1^st Defendant’s office but no instructions were given to the workers as to their proper and effective use.

147.  In keeping with my finding that there was in fact no third worker manning the valves at the Walkway at all times, I also find that walkie-talkies were not used for continuous communication by the workers inside the chambers.  As a matter of fact, if a third worker were in fact available, it may be far more effective to use other means of communication such as different whistle blasts as signals for operating the valve or by shouting out (as pleaded in Paragraph 5(c) of the Defence) when the subsidiary valve along the Walkway needed to be turned off or on to facilitate relocation of the hose from one chamber to another, which would be few and far between.

148.  Mr Kwong said that HEC would monitor the amount of water used and it was not possible to keep the water running all the time during the whole morning. However, no method statement or similar document evidencing such restriction was produced. 

149.  It may well be the case the water would be turned off one way or another when a team moved from one chamber to another, which would involve the 2 workers (a) coming down from the hanging platform of the chamber already cleaned; (b) removing the hose from the hatch door onto the Walkway; (c) relocating and laying the hose to the next chamber to be cleaned through the hatch door down the Walkway; and (d) mounting on hanging platform to start cleaning.

150.  This is a rather long process and it would be illogical for the water to keep running during the relocation of the hose. One only needs to think about the weight of the hose with water in it to be carried from the floor of the chamber to the hanging platform. It would be very difficult if not impossible. I find this part of the Plaintiff’s evidence unbelievable.

151.  The Plaintiff asserted that the water could only be turned off by a Chinese man operating the main valve 300 metres away from EP 8.  However, he did not claim to have seen it personally. All he knew was that the water would be turned off before lunch. The Plaintiff led no evidence nor was he cross-examined as to when, how and by whom this Chinese man was informed to turn off the valve.

152.  That said, in light of my finding of facts as to the unsatisfactory work process whereby the Plaintiff was required to manual handle the heavy hose in an awkward position, these minute details have fallen by way wayside.

153.  By way of example, the Plaintiff was adamant that workers were not allowed to use the lever-operated valve at the nozzle of the hose for fear of back pressure bursting the hose. This was denied by Mr Kwong. I do not find it necessary to resolve this factual dispute but in light of Mr Kwong’s evidence that hoses (each measuring 15 metres or 50 feet in length) would be joined to make up the length of hose required for the cleaning work, there may be some grains of truth in the Plaintiff’s allegation. In this respect, no evidence was adduced by the 1^st Defendant as to how the hoses were joined and how robust was the couplings at the joint(s).

154.  Lastly, I find that the Plaintiff and Kancha were left to carry out the task without proper supervision. On any view, the task is a complicated one and ought not to have been left to the workers without proper training and supervision. Therefore, it is not appropriate to find any contributory negligence on the part of the Plaintiff as alleged by the 1^st Defendant.

CAUSATION

155.  In an ordinary case, once breach of duty of care is established and it is proven that the plaintiff has suffered injury, it is almost taken for granted that causation is also established. However, this is not an ordinary case.

156.  On the strength of the expert opinion of Dr Law, Mr Sakhrani sought to challenge the diagnosis of RNP made by the treating doctors at POH where the Plaintiff was admitted for treatment on 5 November 2013.

157.  In essence, Dr Law placed reliance on the objective findings from the NCT and EMG done subsequently at Tuen Mun Hospital on 17 March 2014 that the Plaintiff’s symptoms were more consistent with PIN Palsy (which is mainly a motor nerve) since the Plaintiff’s radial nerve was found to be “normal”.

158.  The genuineness of the Plaintiff’s complaint aside, but for the challenge on medical causation, whether the diagnosis should be RNP or PIN Palsy is immaterial since the Court would be looking at the degree of impairment rather than the diagnostic label.

159.  For the reasons set out hereinbelow, I find that the Plaintiff did suffer from RNP as a result of the injury he sustained in the course of work on 2 November 2013.

(a)  The radial nerve originates from the posterior part of the branchial plexus arising from cervical roots C5 to C8 [near the neck] and gives off branches to the triceps muscle after leaving the axilla [armpit].  It spirals posteriorly around the humerus where it pierces the intramuscular septum advancing to supply the brachioradialis [muscle in medial/inner side of forearm]  and then to the extensor surface of the forearm [near back of elbow]. The radial nerve then bifurcates into its sensory branches, the superficial radial nerve [radius side], and the deep radial nerve supplying the wrist finger extensors. The deep radial passes through the supinator muscle and emerges as the posterior interosseus nerve [PIN, on the ulnar side] supplying the indices and long thumb muscles (see Morris M Mitsunaga MD, et al., High Radial Nerve Palsy Following Strenuous Muscular Activity (1987), Clinical Orthopaedic and Related Research 1988:234:39).

(b) Injury of the radial nerve at branchial plexus level was ruled out by Magnetic Resonance Imaging done on 10 December 2013 (see Report of Dr Wen Eleanor, O&T POH, 20 May 2016[52]).

(c)  It is not disputed that the hallmark feature of RNP is a wrist drop[53] with numbness of the snuff box[54] (first web dorsum near the thumb[55]).

(d) In contrast, PIN is mainly a motor nerve[56] and hence there will be no sensory loss[57]. A wristdrop is absence in PIN which can be distinguished from RNP[58].

(e)  When seen at A&E POH on 5 November 2013, it is documented “[Left] Wrist drop”. Fail to extend [left] wrist and fingers. Reduced pin prink sensation over left forearm[59]” and a differential diagnosis of peripheral neuropathy was made whereupon the Plaintiff was admitted for treatment.

(f)   In the Orthopaedic Note (dated 6 November 2013)[60], a diagnosis of RNP was made and it was documented:

 

“Case of wrist drop L. No traumatic history with no mass at neck. Wrist drop since 2/11/2013. Wrist pronated, thumb abducted.

[reduced]sensation at anatomical snuff box. Proximal muscle group intact (shoulder abduction, extension of at elbow joint). No history of lead poisoning/pressure application of radial nerve distribution area.” (emphasis added)

160.  Dr Law cast doubt on the diagnosis of RNP made at POH on the ground that the wristdrop might be hysterical (ie the Plaintiff failing rather than being unable to raise the wrist) as evidenced in his failure to extend the fingers, which should not have been affected. However, I am not convinced that the diagnosis of RNP is wrong.

161.  Dr Law did not have the benefit of seeing the Plaintiff at the material time. Due weight should be given to the diagnosis of the treating doctors. In particular, the orthopaedic doctor was careful enough to consider lead poisoning, which is known to mimick wristdrop in nerve palsy[61]. It demonstrates that the orthopaedic doctor did have in mind the relevant differential diagnoses and he was careful enough to consider lead poisoning as a possibility.

162.  In the circumstances, I would be slow to subscribe to an argument that the doctor did not also consider “hysteria” as a reason for the presentation of symptoms, which also needed to be eliminated[62].

163.  Further, Dr Law suggested that the reduced sensation in the forearm documented by A&E POH was not specific enough for the diagnosis of RNP.  However, the distinctive feature of reduced sensation at the “snuff box” was specifically documented by the orthopaedic on the following day (see Paragraph 159(f) above).

164.  Pausing there, I observe that in the Joint Orthopaedic Report dated 4 June 2017 (“JOR”) and Supplemental Joint Orthopaeidic Report dated 6 April 2018 (“Supp JOR”), Dr Law did not refer to the contemporaneous medical notes with reference to reduced sensation in the “snuff box” or discuss the significance thereof.

165.  The diagnosis of RNP is buttressed by the finding of the Physiotherapist of POH on 7 November 2013[63] that the Plaintiff had “50% light touch x dorsal part of L thumb” (ie a description matching the snuff box). Importantly, it is also documented “Left fingers extension, can’t fully extend” (as opposed to failing to extend at all). In contrast, a person with hysterical wristdrop tends to report “fail[ing] to extend the terminal phalanges in any position of the metacarpo-phalangeal joints[64] [ie the knuckle]”.

166.  Given the fact that the Plaintiff was only educated to secondary level, it would be very surprising if he was able to give such detailed symptoms, all referable to RNP, if they were not genuine.  Further, it did not matter to him one scintilla what the diagnosis was since his concerns were only to receive treatment for his symptoms.

167.  Mr Sakhrani also cast doubt on the Plaintiff’s evidence by reference to the admission note taken by Dr Ng Yiu Ping at the ward on 5 November 2013[65] “Last Sat. Injury of Lt hand doing work. With repeated hiting (sic) of the hand”. It is therefore suggested that the Plaintiff did attempt to report a traumatic accident (as opposed to an insidious work injury).

168.  However, this would be inconsistent with the history repeatedly given by the Plaintiff before and after seeing Dr Ng (ie to A&E POH upon admission and to the orthopaedic doctor on the following day) that there was no “injury” or “traumatic history”.

169.  Since no enquiry had been directed to Dr Ng and she was not called to give evidence, the apparent discrepancy in the note should not be held against the Plaintiff.  By the same token, in the Form 2 filed by the 1^st Defendant on 18 December 2013[66], it is stated that “The injured was holding a water hose to carry out washing work but he could not hold it tightly and his left hand was struck by the water hose” and  “contusion” was marked amongst the listed categories of injuries.

170.  The 1^st Defendant did not see fit to call the maker of the Form 2 but sought to attribute the description of the accident to the Plaintiff.  This is not proper, particularly in light of the handwritten note submitted by the Plaintiff to the 1^st Defendant on or about 9 December 2013[67], which states:

“The water pipe force was very strong – hole (sic) day I am the one hold and cleaning the area. Suddenly my left hand moving out”.

171.  No oral evidence was led to clarify the description in the note but the Plaintiff certainly did not refer to any accident or hitting by anything.  When being jointly examined by Dr Law and Dr Wong, the Plaintiff made clear that “There was no direct contusion on his left upper arm/elbow. There was nothing ever touching his entire body[68]”.

172.  Likewise, on 21 July 2014[69], the treating doctors at Tuen Mun Hospital documented “started with holding heavy water hosepipe for 7-8 hours at work then wristdrop”. In this context, the “7-8 hours” must be a reference to the daily working hours.

173.  In cross-examination, the Plaintiff admitted that he was tending the hose rather than holding the nozzle to spray in the afternoon on 2 November 2013. On my finding of facts as to the work process, it is quite possible that the work posture of a worker tending the hose on the hanging scaffold was less “awkward” in that his movement would not be constrained by the need to hold the nozzle facing the screen of filters while standing on the hanging platform.

174.  In other words, the worker tending to the hose would have more chance to change his posture (ie turning towards the run-in of the hose) to haul it in squarely using both hands. However, that does not detract from the fact that the negligence and/or breach of duty of the 1^st Defendant necessitating the Plaintiff to manually handled the heavy hose in an awkward position has materially contributed to his injury (see Bonnington Castings Ltd v Wardlaw [1956] AC 613).

175.  Further, causation is a matter for the court to decide by the exercise of judicial common sense (see Hunter JA in Lee Kin Kai v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232 at 236). The lack of definitive expert evidence is not necessarily fatal.

176.  In light my ruling on “foreseeable risk”, in so far as the Defendant’s negligence exposed the Plaintiff to a work procedure or work environment, which might be foreseen to cause “musculoskeletal injury” and it is proven that the Plaintiff did suffer from such kind of injury, causation is established regardless of the precise mechanism.

177.  In this connection, Dr Law[70] accepted that if the manipulation of a machine gun weighing of about 29.5 lbs (23 lbs of the gun and 6.5 lbs of ammunition) as described in the paper of L Sonna (supra) could cause PIN Palsy, the Plaintiff’s injury might be compatible with RNP resulting from pulling of a hose weighing over 30 kg. There is no dispute that the biceps muscle in the upper arm has anti-gravitational function (ie for lifting). However, pulling of the hose sideways as described by the Plaintiff would involve different muscles (including the biceps and triceps). 

178.  Dr Law did qualify his answer by referring to the need for “violent or pulling action” in the mechanism. In this respect, inference can readily be drawn that the Plaintiff’s work in manual handling of the heavy hose would involve some pulling action.  The hose was made of canvas with a coarse surface. It was not rigid but filled with water and was lying (in part) on the hanging platform after running past various objects along the way from the connection point at the Walkway to the hanging platform. In the circumstances, it is difficult to avoid some forceful, if not violent, pulling and the Plaintiff had to do it sideways within the cramped space of the hanging platform. 

179.  On the balance of probabilities, I am satisfied that the Plaintiff’s neuropathy (whether diagnosed as RNP or PIN Palsy) was caused by his work at the Power Plant on 2 November 2013.

180.  Further, I find that the negligence and/or breach of statutory duty and/or contract of employment on the part of the 1^st Defendant has caused the musculoskeletal injury in the Plaintiff’s left hand, which was manifested in a form of neuropathy.

INJURY AND TREATMENT

181.  On my foregoing findings, whether the Plaintiff’s injury should be diagnosed as RNP or PIN Palsy is immaterial to the 1^st Defendant’s liability. 

182.  On 5 March 2014, an MRI was done and no SOL (space occupying lesion) was found around the elbow joint[71]. However, due to a mild degree of signal change at the supinator muscle (in the forearm through which the PIN passes), it is suggested that the underlying neuropathy was in the PIN. Incidentally, it was found that there was a probable presence of anatomical variant in the Arcade of Froshe (a fibrous arch over the PIN at the superior part of the supinator muscle).

183.  Despite the MRI findings, the Plaintiff’s continued to be diagnosed and treated as an RNP case by Dr Tong Wing Sze (O&TPOH) on 13 March 2014[72].

184.  As explained, on the strength of the evidence, I prefer the diagnosis of RNP despite the seemingly conflicting finding upon NCT and EMG Test done on 17 March 2014.

185.  It is perhaps overly simplistic for Mr Sakhrani to suggest that the radial nerve was found to be “normal” by the NCT.  In fact, in the NCT Report[73], Dr Lam Chor Yin stated:

“Motor study of the left radial nerve showed low CMAP amplitudes when compared with the right side suggestive of partial motor axonal degeneration.

Sensory study of the left radial nerve show comparable SNAP amplitudes with the right side, suggesting that the lesion was in the [PIN].

186.  It is on the basis of these findings coupled with the confirmation that both the medial nerve and ulnar nerve were intact that Dr Lam opined that the lesion was in the PIN.  The record shows that Dr Lam was aware of the wrist drop but there is no evidence that he in fact correlated it with other symptoms (such as reduced sensation of the “snuff box”).

187.  In the subsequent consultation note dated 21 July 2014[74], Dr Lam recorded “Original note created 17 Mar 2014. Wrong clinical code used in original note”. However, the original note cannot be found in the medical records. The reasoning for the change of diagnosis made by Dr Lam on 21 July 2014 is unclear.

188.  Dr Wong drew attention to the paper by Erich Strieb (supra) where it is registered (at 1634) that:

“Using cadaver studies, Lotem et al demonstrated that the radial nerve passed through a fibrous arch of the lateral head of the triceps muscles to reach the forearm. They postulated that this arch is tighter in muscular individuals and that muscle and that muscle swelling during heavy exercise further reduced the space available for the radial nerve. Subsequent sudden, violent contraction of the triceps muscle as it occurred in their patients and in ours was an additional and necessary injury mechanism to cause the radial neuropathy.” (emphasis added)

189.  Dr Wong was cross-examined on this topic and he accepted that there was no evidence that such was the mechanism of injury in this case[75]. However, Dr Wong maintained his opinion in the JOR that:

“102. . . the initial injury to the radial nerve was at a level proximal [above] to the left below, probably at the lateral intermuscular septum or the fibrous arch of the lateral head of triceps. The exact site of the radial nerve lesion is unclear from the available clinical information. The radial nerve could be compressed, especially in muscular patients, after repeated exertion in awkward position as described by Mr Rai[76].”

190.  In the Supp JOR, Dr Wong accepted that reports of RNP in the literature were sporadic but he maintained the view that the said mechanism of injury was a “definite possibility” in the Plaintiff’s case.

191.  I am of the view that Dr Wong cannot be blamed for his seemingly non-committal statement that such mechanism of Plaintiff’s RNP injury was a “definite possibility”. Firstly, Dr Wong rightly observed that the level at which the radial nerve was tested by NCT was not identified in the report dated 17 March 2014[77].

192.  Secondly, it was due to the lacunae in medical knowledge that Dr Wong accepted in cross-examination that the postulation in the literature tantamount to speculation[78].

193.  Upon my foregoing finding on causation, the various discrepancies or inconsistencies in the presentation of the Plaintiff’s symptoms are of secondary importance although it may affect the quantification of the damages.

194.  As I understand, Mr. Sakhrani relied on Dr Law’s diagnosis of PIN Palsy in order to run the arguments that (a) PIN Palsy could occur without any accident or injury; and (b) it could occur out of its own accord and it might even occur after some daily activities like shopping of grocery or doing household chores with heavy lifting[79].

195.  I accept the Plaintiff’s evidence he had not suffered any injury in his left arm prior to 2 November 2013 and the onset of pain and burning sensation occurred after the spraying work on that day. The temporal relationship means it is unlikely that the injury was caused by other innocuous daily activities as suggested by Dr Law.  In any event, with my finding on causation, the dichotomy between the diagnoses of RNP and PIN Palsy has been rendered insignificant.

196.  Mr Sakhrani established in cross-examination of Dr Wong that the Plaintiff’s reduced sensation as reported in the joint examination on 20 February 2017 was inconsistent with both RNP and PIN Palsy.  It is documented in the JOR[80] that :

“92. The sensation to light touch on the left arm was reduced by 30% on the ... left hand dorsum on both radial and ulnar side.”

197.  The logic is that if it is RNP, the loss of sensation should be on the radial side (thumb) and not on the ulnar side. However, if it is a case of PIN Palsy, there should be no loss of sensation since PIN is a motor nerve.

198.  There are other inconsistencies in the Plaintiff’s symptoms, for instance, Dr Wong accepted that the reduced strength in elbow extension complained of by the Plaintiff[81] was inconsistent with either PIN Palsy or RNP but it might be related to the Plaintiff’s complaint of pain.

199.  Dr Wong and Dr Law agreed that it was improbable for a patient to develop both RNP and PIN Palsy. Naturally, they were  unable to say that it was not possible. In fact, the report of L Sonna (supra), introduced by the 1^st Defendant through Dr Law, involving PIN in a machine gunner may just be one such case.  It is stated (at p 365) that:

“In addition to motor deficits, our patient had transient sensory findings in a radial distribution. . .Nonetheless, our patient’s anatomy snuffbox sensory dysfunction probably did not result from proximal compression of the PIN alone. Nerve conduction studies show superficial sensory radial nerve dysfunction that was not present 8 weeks later, which could be accounted for by a functionally reversible lesion at the bifurcation of the radial nerve.”

200.  At the end of the day, the Court will be looking at the actual symptoms suffered by the Plaintiff and his degree of recovery rather than the niceties of the diagnostic labels.

201.  It has been over 6 years since the onset of his symptoms in the left hand. It is quite possible that at the time of the joint examination on 20 February 2017, the presentation of the Plaintiff’s symptoms was affected by “hysterical” element attendant upon the litigation.  However, there is objective evidence of his neuropathy. 

202.  To start with, motor axonal degeneration was detected by NCT. Muscle atrophy in the left forearm was observed by doctors at the Out-Patient Clinic of Tuen Mun Hospital on 22 September 2015 and 7 October 2015[82]. This had improved when he was jointly examined by Dr Law and Dr Wong[83].

203.  There is no dispute that the Plaintiff has reached maximum medical improvement. Dr Law assessed 0.1% Permanent Impairment of the Whole Person whereas Dr Wong assessed 10% impairment of the upper limb on account of residual weakness and sensory deficit (translated into 6% impairment of the whole person).

204.  While the question of Loss of Earning Capacity is a matter for the court, doing the best they could, Dr Law assessed 0.1% whereas Dr Wong assessed 6%. To put things in perspective, in the Form 7 (dated 16 November 2015), the Plaintiff was assessed to have sustained 6% Permanent Loss of Earning Capacity on account of the weakness and numbness in his left upper limb. Sick leave necessitated by the injury was certified up to 10 October 2015.

205.  Dr Law opined that sick leave of 12 weeks would be adequate whereas Dr Wong took the view that sick leave up to 2 November 2015 as granted by the treating doctors was warranted.

206.  For the sake of completeness, I do not find any inconsistencies between the Plaintiff’s medical condition and what is depicted in the surveillance footage.  On occasions, he was seen not to be wearing his hand splint.  However, it was a functional splint and not for immobilization.

207.  He was prescribed an out-rigger splint on 7 November 2013[84]. In an Occupational Therapy Note dated 11 November 2013[85], he was reported to be wearing the splint “3-4 hours/day, 1-2 hours each time” and it was said to be “satisfactory compliance”. This lends support to the Plaintiff’s evidence that he was not told to wear the splint continuously.  His “splint compliance” was also said to be satisfactory on 6 October 2014[86]. This was the occasion when the doctor at POH advised that the splint was to be weaned off totally.

QUANTUM

PSLA

208.  In the Re-Revised Statement of Damages, a sum not less than HK$250,000 is claimed.  In the Opening Submission, Mr Sadhwani argued for an award of HK$350,000. In the Answer, the 1^st Defendant pleaded a figure of HK$120,000.

209.  The Plaintiff has recovered to a large extent and the weakness and numbness are residual. There is no psychiatric overlay either. Bearing in mind inflationary adjustment, I am of the view that a sum of HK$300,000 is appropriate under this head in light of the authorities  (see Frank Yu Yu Kai v Chan Chi Keung, HCPI 230/2004, unrep, 8 November 2006, Suffiad J; Cheng Yuk Chun v Winson Cleaning Service Co Ltd, DCPI 629/2006, unrep, 6 July 2007, HH Judge S Leung; and Chan Cheuk Pui v Man Chun Pong, HCPI 718/2012, unrep, 3 October 2016, Master Leong).

Pre-Trial Loss of Earnings

210.  The Plaintiff was granted sick leave up to 3 November 2015 (ie 728 days). He obtained his Security Personnel Permit on or about 23 March 2016.  However, he did not find a job as a security guard with China Overseas Property Services Limited until 1 October 2016 where he earned HK$8,500 only.

211.  I accept Dr Law’s opinion the Plaintiff has recovered to the extent that he will be able to work as a general labourer although he should avoid scaling height (as required of him as a metal scaffolder) or operating machinery.  By the same token, I do not accept Dr Wong’s opinion that the Plaintiff is only capable of sedentary work.

212.  In this scenario, allowing the Plaintiff about 3 months to look for work as a general labourer would be reasonable (ie up to say 5 February 2016). I notice that the Plaintiff’s daily wage for the purpose of calculating employees’ compensation by way of periodical payment was increased from HK$920 to HK$950 as of 1 January 2015. Presumably, this is the normal inflationary adjustment[87].

213.  The Plaintiff’s daily wage of HK$920 in 2013 was much higher than the 4 comparable workers presented by the 1^st Defendant, who earned only between HK$830 to HK$840 in 2019.  They are not relevant comparators.  The Plaintiff had multiple skills and was a long-serving and loyal employee of the 1^st Defendant before his injury and that explains the disparity.

214.  I also take judicial notice of inflation rates with reference to the Composite Consumer Price Index. From January 2015 to February 2016 Composite CPI moved from 100 to 103.8 (representing an increase of 3.8%). From February 2016 to November 2019 (the latest figure available), it moved from 103.8 to 111.1 (representing an increase of about 7%) - see Personal Injury Tables Hong Kong 2019 (Sweet & Maxwell) at p 77 and recent publication from Census & Statistics Department).

215.  On this basis, the Plaintiff’s daily rate would arguably be increased along with inflation (from January 2015 up to the present) to become HK$950 x 1.038 x 1.07 = HK$1,055/day. The overall inflationary adjustment from November 2013 would then be (HK$1,055 – HK$920)/920 x 100% = 14.67%.

216.  Both parties refer to the “Average Daily Wages of Workers engaged in the Public Sector Construction Projects” published by the Census and Statistics Department (the “Wage Statistics”). Although the Wage Statistics for some years in the series have not been produced before the Court, the same is readily available from the government website.

217.  According the Wage Statistics, a general labourer in the public sector would be earning HK$739.80 in November 2013, HK$919.10 in February 2016 and HK$982.90 in October 2019, being the latest figure available. The overall rate of wage increase in the public construction sector since November 2013 is (HK$982.90 – HK$739.80)/HK$732.80 x 100% = 33.17%.

218.  It therefore appears that the rate of wage increase in the construction industry is higher than general inflation reflected in Composite CPI at least for some periods before trial. In the premises, it would not be entirely fair to adjust the Plaintiff’s projected income solely on the basis of Composite CPI.

219.  The daily wages of construction workers in the private sector are likely to be lower than that available to workers in the public sector[88]. No evidence was adduced by the Plaintiff or the 1^st Defendant to show the daily wage of concreter, metal scaffolder and general welder in the private sector during the relevant period. Nor was there evidence of the general rate of wage increase for workers engaged in construction work in the private sector.

220.  Doing the best I can, I will make adjustment for the Plaintiff’s projected wage at various points in accordance with actual rates of increase as reflected in the Wage Statistics with reference to general labourers, which is the least qualified job in the construction industry and unlikely to be affected by upsurge of demand in a particular trade.

221.  From the Wage Statistics, the rate of increase of daily wage of a general labourer from November 2013 to February 2016 is (HK$919.10 - HK$739.80)/HK$739.80 x 100% = 24.23%. Likewise, the rate of increase in daily wage from February 2016 to October 2019, being the latest figure available, is (HK$982.90 - HK$919.10)/HK$919.10 x 100% = 6.94%. This is almost at par with the 7% on the basis of Composite CPI (see Paragraph 214 above). The slight difference can be explained by the time lag in the publication of the Wage Statistics and the Composite CPI.

222.  On the foregoing basis, the Plaintiff’s projected daily wage is HK$920 x 1.2423% = HK$1,142.90 (as of February 2016) and HK$1,142.9 x 1.0694 = HK$1,222.20 (at present).

223.  Accordingly, the Plaintiff’s Pre-Trial Loss of Earnings is:

(a)	5 November 2013 to 4 February 2016
	(HK$920 + HK$1,142.90)/2 x 24 days/month
	x 27 months	HK$668,379.60
(b)	5 February 2016 to 4 March 2020
	[(HK$1,142.90 + HK$1,222.20)/2 –
	(HK$919.10 + HK$982.90)/2] x 24 days/month
	x 49 months	HK$272,302.80
		_____________
		HK$940,682.40

224.  Notwithstanding that it is pleaded in Paragraph 16 of the Defence that the Plaintiff’s tax liability should be taken into account, the plea is not repeated in the Amended Answer to the Re-Revised Statement of Damages (dated 20 June 2019).  No submission has been advanced by Mr Sakhrani either. 

225.  It is noteworthy that in Tax Year 2012/2013, the Plaintiff’s tax liability was HK$1,531[89] (after taking into account 75% tax reduction) from a taxable income of HK$284,049, which is only about 0.5%.  In recent years, the government has continued to grant ad hoc salary tax reduction, which was increased to 100% in Tax Year 2018/2019 subject to a maximum of HK$20,000.  In the grand scheme of things, I am of the view that no deduction is justified.

226.  The corresponding Pre-Trial Loss of MPF Contribution is therefore HK$940,682.40 x 5% = HK$47,034.12.

Future Loss of Earnings

227.  The Plaintiff was born on 22 August 1975. In the Opening Submission, the Plaintiff contended for a Work Multiplier of 13.67, when the Plaintiff was aged 43 10/12 months. However, the Plaintiff is now 44 1/2 years of age and therefore adjustment is required.

228.  It is also said that but for the injury he would continue to work in the construction industry until age 60.  This is reasonable given the strenuous nature of the work.  In so far as he may choose to take up sedentary work after age 60, he is still capable of doing to so despite his injury.

229.  At a discount rate of 2.5%, the appropriate Work Multiplier is about (13.01 + 12.34)/2 = 12.675 (see Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1 and Table 7, Personal Injury Tables Hong Kong 2019).

230.  The Plaintiff is qualified as a concreter, metal scaffolder and general welder[90]. By way of a belated amendment to the Revised Statement of Damages made on 19 June 2019, the claim for Future Loss of Earnings has, in essence, been pleaded on the basis that the Plaintiff would have worked in these various trades in public sector construction projects but for his injury.

231.  Future loss of earnings on the basis of a projected income of HK$48,074/month has been pleaded. However, it is unknown how this figure is arrived at although reference is tangentially made to the Census & Statistics Department. Further, no evidence has been adduced by the Plaintiff as to his career plan. Nor has any case been pleaded or advanced on behalf of the Plaintiff on the basis of a loss of chance. To put things in perspective, this would be about HK$48,074 26 days/month = HK$1,849/day.

232.  The Wage Statistics shows that a Rigger/metal formwork erector in the public sector would earn $1,628.70/day as of October 2019. Assuming that this is equivalent to a Metal Scaffolder or Rigger employed by the 1^st Defendant, this daily wage seems substantially higher than the projected daily wage of the Plaintiff at HK$1,222.20 (see Paragraph 222 above). However, language barrier may be a hurdle in the Plaintiff’s case. The fact of the matter is that he continued to work for the 1^st Defendant as a Metal Scaffolder or Rigger since 2007 up to the time of his injury in 2013 except for about 2 days in 2011 during which he worked as a security guard. I am of the view that but for his injury, he would have continued to work for the 1^st Defendant or another employer of similar calibre.

233.  In the premises, the Future Loss of Earning is assessed at (HK$1,222.20 – HK$982.90) x 24 days/month x 12 x 12.675 = HK$873,540.72.

234.  Accordingly, the corresponding Loss of MPF Contribution is HK$873,540.72 x 5% = HK$43,677.04.

Loss of Earning Capacity

235.  In Thapa Surendra v E W Cox Hong Kong Limited, HCPI 451/2009, unrep, 11 July 2011, DCHJ Seagroatt (the learned judge formerly in charge of the Personal Injuries List) explained:

“46.  The principle described by Lord Fraser in Chan Wai Tong v Li Ping Sum (1985) HKLR 176 followed the English Court of Appeal’s decision in Moeliker v A. Reyrolle Co. Ltd (1977) 1WLR 132 which itself had adopted the reasoning in Smith v Manchester Corporation, a more prosaic title of an action, which is probably why Moeliker sticks more readily in the memory.  Effectively the question to be asked is : is there a risk that the plaintiff will lose his current job at some time before the estimated natural end of his working life by reason of the injuries and incapacity consequent upon the defendants’ negligence?  If there is, one has to quantify the present value of the risk of future financial loss taking into account the degree of risk, when it may occur and all the factors which may affect his chances of getting a job or an equally well paid job.

47.  A consideration of the 18^th edition of McGregor on Damages (2009) lends force to my approach:

“... The requirement that there be a real risk of future unemployment is not to be interpreted too strictly is also evidenced by [two] cases. [Frost v Palmer (1993) P.I.Q.R. Q14, C.A. and Robson-v-Liverpool City Council (1993) P.I.Q.R. Q78 C.A.] Nonetheless some concern has been expressed that the tendency is for courts to underestimate the likely loss and to err on the ungenerous side in their awards.”

48.  There is always therefore an element of crystal-gazing but there must be a rational factual matrix against which the assessment must be made.” 

236.  On my finding as aforesaid, the Plaintiff still have some residual weakness and numbness in the left arm. The Future Loss of Earnings has been assessed on the basis that he would still be able to engage in strenuous work as a general labourer. There is a real risk that his future employment may be interrupted by his residual impairment. Accordingly, I find that he has suffered a disadvantage in the labour market. The claim for HK$100,000 is reasonable and is allowed.

Special Damage

237.  The Plaintiff claims a sum of HK$15,000. Contrary to acceptable practice, a pile of receipts was haphazardly included in the Trial Bundle apparently without any attempt by the Plaintiff to set them out in a schedule to solicit agreement from the 1^st Defendant.

238.  Mr Sakhrani only agreed to a total sum of HK$9,000 (HK$8,000 for medical expenses and HK$1,000).

239.  The claim is not substantial.  On a broad-brush approach, I would allow a total sum of HK$12,000 for special damage.

SUMMARY ON QUANTUM

240.  In summary, the quantum of damage is assessed as follows:

(a)	PSLA	HK$300,000
(b)	Pre-Trial Loss of Earnings	HK$940,682.40
(c)	Pre-Trial Loss of MPF Contribution	HK$47,034.12
(d)	Future Loss of Earnings	HK$873,540.72
(e)	Future Loss of MPF Contribution	HK$43,677.04
(f)	Loss of Earning Capacity	HK$100,000
(g)	Medical Expenses, Tonic Food &	HK$12,000
	Travelling Expenses	________________
		HK$2,316,934.28
	Less EC Payment :	(HK$690,666)
		________________
		HK$1,626,268.28

DISPOSITION

241.  There will be judgment for the Plaintiff against the 1^st Defendant in the sum of HK$1,626,268.28 together with interest on special damage at half-judgment rate (ie 4% to be computed after deducting the amount of EC Payment already received) and interest on PSLA at 2% from date of writ to date of judgment.

242.  By way of an order nisi, the costs of the action are to be paid by the 1^st Defendant to the Plaintiff to be taxed if not agreed. The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. There be no order as to costs occasioned by the joinder of the 2^nd Defendant including the costs reserved by Master Leong on 2 September 2016[91].