TAM WAI TUEN v. SEIKO SCREW MANUFACTORY LTD

HCPI 383/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO. 383 OF 2008

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BETWEEN

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JUDGMENT

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1.  The plaintiff claims that he suffered injury at work in the early hours of 7 June 2005 as a result of the negligence of the defendant, his employer at the time. Both liability and quantum are in issue.

Background

2.  The defendant is a manufacturer of screws. It occupies various units in Golden Dragon Industrial Centre, Nos. 182-190 Tai Lin Pai Road, Kwai Chung, New Territories, Hong Kong both as its offices and factory. On the 23^rd floor, the defendant occupied four units which housed machines for the making of screws.

3.  For the purpose of these proceedings, it is necessary to mention two types of machines. The first are called head making machines [打頭機] and the second are called thread rolling machines [搓牙機]. What I describe below as to the operation of these machines are not in dispute and I find them proved.

4.  Raw materials for making screws are aluminium wires which come in coils weighing about 25 kg each. There are also screws made from steel wires or alloy, but I am not concerned with those. A coil of aluminium wire would be placed on a rack on a tripod stand with a vertical spindle at the top and two horizontal bars on its side to hold the coil in position. A workman has to lift the coil of aluminium wire to a height of just over 1 m to position it on the rack. One end of the wire would be fed into the headmaking machine, which will, when switched on, automatically cut the wire into portions of the desired size and stamp the head. The semi-finished products thus produced from the head making machines are called “blanks”.

5.  The blanks are then collected by a workman in a mug and scooped into the threadrolling machine to produce screws. The workman would also be responsible for monitoring the product to ensure that they are of the right quality and specifications.

6.  The plaintiff started working in the defendant’s factory as a casual worker since February 1993. In January 2002, he was employed on a yearly contract. By June 2005, his take home pay was between $8,500 and $9,500 per month. At the trial, the parties agreed the figure of $9,482.28 as his average monthly income.

7.  The plaintiff normally worked day shifts and it is not in dispute that his normal duties were to oversee the smooth operation of the thread rolling machines which would also involve quality control of the products. This means that his duties did not involve attending to the head making machines, and it was not within his normal duties to lift aluminium coils onto the racks of the head making machines.

8.  From time to time, the plaintiff was called upon to work on night shifts. This happened when the defendant had to rush to meet deadlines for delivery or wished to accommodate the customers. The work cards of the plaintiff show that for the year 2005, the plaintiff started night shifts from 18 April 2005 until 8 May 2005. He then went on day shift again until 30 May 2005 when he resumed night shift. Thus, on the evening of 6 June 2005 until the early hours of 7 June 2005 the plaintiff was on night shift when he allegedly suffered his injury.

9.  At the material time in June 2005, there were some 38 head making machines and 20 thread rolling machines. There were three main areas on the 23^rd floor where the machines were placed. The head making machines were separated into two sections, of about 18‑20 machines each on the two far sides of the units. The thread rolling machines were positioned in between the head making machines.

10.  During day shifts, there would be 9-10 operatives manning the machines. The plaintiff says, and the defendant does not dispute, that during day shifts, there would be two workers and one technician manning each of the three main areas of the factory.

11.  On the night in question, as was usual for night shifts, there were only three persons present on the 23^rd floor : the plaintiff, one co-worker called Ho Ka Leung (“Mr Ho”), and the supervisor, Lai Chi Man (“Mr Lai”).

12.  Mr Lai is and was a director and shareholder of the defendant. The defendant’s business is a family business run by Mr Lai and his siblings. Mr Lai was in charge of the manufacturing processes on the 23^rd floor.

13.  He signed the Form 2 filed by the defendant under the Employees’ Compensation Ordinance. He also acknowledged that he provided the information to the person filling in the form. The form described the accident as occurring when the plaintiff moved materials at the workplace. It further stated that the plaintiff twisted his waist and felt a little pain at that moment, and that after work, when the plaintiff was on his way home by a vehicle, he felt a severe pain in his waist and went to see the doctor immediately.

Matters in dispute

14.  I now come to the areas of dispute. I heard evidence from the plaintiff and from Mr Lai. Mr Ho is still employed by the defendant, but was not called to give evidence.

15.  It is the plaintiff’s case that although he was told that his night shift duties would be the same as his day shift duties, in fact what happened was that he would be instructed, during night shifts, to man the head making machines in addition to overseeing the thread rolling machines.

16.  The defendant says, however, that the plaintiff was never instructed to work on the head making machines. Mr Lai said in his witness statement that the plaintiff would sometimes help to feed the wires into the head making machines on his own initiative.

17.  The plaintiff said that the defendant’s normal policy was that workmen should take turns on having their meals. However, on the night in question, Mr Lai asked him and Mr Ho to go into the office to have meals together and told them about complaints by day shift workers over the quality of screws produced during the night shift. He said that the machines were allowed to remain in operation when the three of them went into the office and had their meals. When they came out of the office, they noticed that six of the head making machines had run out of raw materials, and Mr Lai instructed him to load the aluminium coils on to the six head making machines. He said it was in the course of loading the fifth machine that he felt pain in his back. He said that although he felt pain, he managed to complete loading the sixth head making machine on his own and stayed on until the end of the shift.

18.  The defendant denied that the plaintiff was tasked to load the aluminium coils on to the head making machines. Mr Lai said that on the night in question, he was in charge of nine head making machines on one side of the units, whilst Mr Ho was in charge of the other nine head making machines on the other side. He said that the plaintiff was only required to man ten thread rolling machines.

19.  According to Mr Lai, there were only thirty machines in operation that night. Apart from the eighteen head making machines, ten thread rolling machines, there were two sets of screw head punchers. The plaintiff said that both of these screw head punchers were new (whereas the defendant said that only one of the screw head punchers was new) and Mr Lai had to devote his full attention to these new machines, and therefore left the plaintiff and Mr Ho to look after the head making machines in each of the two sections. In addition, the plaintiff was responsible for looking after the operation of the thread rolling machines. The plaintiff disputed that there were only thirty machines in operation. His evidence was that Mr Lai wanted to have more work done and had switched on all the machines.

20.  The plaintiff said that in the night he hurt his back, he told Mr Ho about it, and later went to see a private doctor for his pain, and was given an injection and some analgesics.

21.  There is disagreement as to when the plaintiff informed Mr Lai. The plaintiff said he told Mr Lai only the next day. In Mr Lai’s witness statement, he said that around 6 a.m. in the morning of 7 June, the plaintiff told him he had a little pain in his waist when he was feeding the machine.

Findings on the facts

22.  I have been given two very different accounts on what happened on the night in question. On the material issue of whether the plaintiff was tasked to man the head making machines and directed to load the aluminium coils on the six head making machines, I accept the plaintiff’s evidence. I also accept his evidence that he sprained his back in the course of loading the coil weighing some 25 kg after he had been repeatedly performing the same function for the fifth time. To the extent that Mr Lai’s evidence was inconsistent with this finding, I reject that evidence.

23.  The plaintiff struck me as a relatively unsophisticated person. He gave his evidence in a straightforward manner. I believe that on the night in question, Mr Lai was himself pre-occupied with the new screw head punchers and the workforce during that night shift was stretched especially thin. The plaintiff’s version is also supported by the way in which the defendant recorded how the accident happened in its Form 2. Although Mr Lai did not become aware of how the plaintiff came to suffer his injury until after the evening, I find it likely that he would have been told not long soon after. That was how the defendant was able to record the circumstances of the accident in the Form 2. I reject Mr Lai’s evidence that the word “materials” used in filling the Form 2 could have been a reference to the nails when the plaintiff was retrieving the finished products. I do not find that plausible. I also reject his evidence that it was he who manned the head making machines that night, and his evidence that when he needed help he would seek assistance from Mr Ho. Given the defendant’s own pleading in paragraph 3 of the Defence that the plaintiff occasionally assumed the role of a head making machine, I find Mr Lai’s account to be inherently improbable.

24.  Mr Pang, for the defendant, argued that the events described by the plaintiff as to how he sprained his back were inherently improbable. I do not agree. I do not find it necessary to set out and deal with all his arguments, but I should mention one. Mr Pang argued that if the plaintiff had indeed suffered pain, or great pain as he said in his evidence, it is unlikely that he would not cry out in pain, and inherently unlikely that he would have gone on to lift the sixth coil. Mr Pang sought to elicit from the two doctors who gave evidence that a person who suffered an acute prolapse disc would suffer so much pain that he would normally cry out. Dr Tio (who was called to give evidence by the plaintiff) agreed that that is the classic description; but said that back pain varied in intensity and, it all depended on tolerance and how bad was the slip, or perhaps more accurately, the extent to which the nerve root was pressed. As for the sixth coil, the plaintiff said he used his body to help lift it.

25.  It seems to me that given the wide variance in the severity of the onset of back pain, one cannot be dogmatic on this. I do not consider that the fact that the plaintiff did not cry out or the fact that he managed to finish loading the sixth coil render his case inherently improbable.

26.  Mr Pang also challenged the plaintiff’s credibility. There are two main aspects of that challenge.

27.  First, Mr Pang relied on the medical notes which recorded the complaints and history given by the plaintiff to doctors or medical personnel, and pointed out that the plaintiff had given inconsistent accounts. Reliance was placed in particular on the record of the Orthopaedic ward of Tuen Mun Hospital of 9 June 2005 that there was “no history of trauma”, and the record of the Physiotherapy Department of Tuen Mun Hospital of 20 June 2005 that it was not an “injury on duty” case.

28.  However, when the plaintiff saw the doctor of the Orthopaedic ward on 29 June 2005, the doctor noted that the plaintiff reported that he developed back pain after heavy lifting at work on 7 June 2005 early in the morning. A subsequent note, made on 7 September 2005, recorded that the patient did not claim case as injury on duty.

29.  I do not think much weight can be placed either on the note of 9 June 2005 or the note of 20 June 2005. As to the former, much depends on how the history was taken and what questions were asked. As to the latter, the note has been shown to be inaccurate in another respect, that is in recording that the plaintiff had right sciatica seven years ago. More importantly, insofar as these notes suggest that the injuries did not arise from a trauma or injury on duty, these would be conclusions drawn by the author of those notes. The brevity of these note on the history can be contrasted with the note of 29 June 2005, which detailed not only how the pain occurred, the time and date it occurred, but also noted the fact that the plaintiff went to consult a private doctor the same day. The note of 7 September 2005 was of course inconsistent with this note of 29 June 2005; but again this note involved an interpretation and conclusion — whether it was injury on duty, rather than a recording of the history of how the injuries came about. That interpretation depended not only on what the plaintiff said at the time, but also how the medical personnel interpreted the events. As I shall discuss below in the context of causation, Dr Lam whom the defendant calls to give evidence also opined that the plaintiff’s injuries were not caused as a result of the work he did. The fact that such a conclusion was drawn by the medical personnel who treated the plaintiff cannot, in my view, be taken as evidence that the plaintiff gave an inconsistent history.

30.  The second aspect of challenge on the plaintiff’s credibility is the suggestion that the plaintiff had exaggerated the severity of his pain. He relied on the joint report of the doctors that examination of the plaintiff showed “Waddell signs” of non-organic back pain and that his claim of numbness and weakness was too diffused to be explained by a single level radiculopathy (i.e. nerve root disorder). I accept Dr Tio’s evidence that the fact that the plaintiff exhibited “Waddell signs” in examination can only be taken to indicate that there may be a non-organic cause to his perception of pain. Dr Tio also found that the numbness was more severe in the lower calf region which was compatible with an L5 compression. I accept Dr Tio’s evidence and decline to find either exaggeration or any element of malingering in the plaintiff’s complaints. Indeed, the joint report of the doctors stated that the diagnosis was that the plaintiff suffered from a right L5 radiculopathy (i.e. a nerve root disorder at the L5 region), and that the diagnosis was “confirmed with MRI and electromyographic study so that there is no malingering involved in (the plaintiff’s) claim.”

31.  Dr Tio said it was not uncommon for patients involved in litigation to experience more severe pain than can be supported by objective physical findings. It appears that in a lot of these cases, the situation improved after completion of the litigation. The pain may be psychosomatic, but nevertheless real. On the evidence, I accept that the pain that the plaintiff experienced may not all have a physical cause. That is something I would bear in mind in awarding damages, but I reject the defendant’s contention that the plaintiff exaggerated his complaints.

Breach of duty and causation

32.  The defendant did not dispute that as an employer, it owed a duty of care to the plaintiff to provide him with a safe system of work.

33.  Although the defendant formally disputed that it acted in breach of duty, Mr Pang did not contend that if the plaintiff did suffer injury in the circumstances he described, the defendant could argue that it has discharged its duty of care to the plaintiff. In my judgment, an employer who instructed an employee to undertake the repetitive job of lifting six coils of some 25 kg each without assistance plainly failed to provide him with a safe system of work. In the light of my findings on the facts, I have no hesitation in concluding that the defendant was in breach of its duty of care to the plaintiff.

34.  The defendant contested liability, however, on the basis that there was no causation. The defendant relied on the evidence that the plaintiff had a degenerative spine. The plaintiff had a history of back pain in January 2003 when he had to take sick leave and received a week of acupuncture treatment. The MRI scan showed he had mild spinal canal stenosis at L4/L5. Mr Pang relied on Dr Lam’s evidence that the plaintiff’s onset of pain was caused by a degenerative process, related to aging and years of heavy labour, and not caused by a single episode of trauma.

35.  The defendant also relied on a medical note which appeared to suggest that the plaintiff also had low back pain and right sciatica some seven years before the accident. On this last point, I accept the plaintiff’s evidence that he only had one episode of back pain in 2003, and the medical note must have been an error.

36.  The law only requires the plaintiff to prove that the defendant’s breach of duty was a material cause of any injury sustained, see Charlesworth and Percy on Negligence, 11^th edn, paragraphs 5-38. The fact that the plaintiff may be predisposed to a particular type of injury is irrelevant to causation. The facts, as I have found them are that the plaintiff’s pain and disability, which has continued since 7 June 2005, was triggered after he repeatedly lifted a heavy load in following the order given on behalf of the defendant. As Hunter JA said in Ocean Tramping Co. Ltd v Lee Kin-kai [1991] 2 HKLR 232, 235J, causation is a matter for the judge not for the doctors. The learned judge further pointed out that law and medicine apply different standards on causation. In law, there is a sufficient causation connection if it is shown on the balance of probabilities that the defendant’s breach was a substantially contributing cause of the injury. A cause is sufficient. It need not be shown to be the sole cause. Doctors, on the other hand, look for clinical cause or the science of aetiology, what Lord Kilbrandon called “an irrefragable chain of causation” in McGhee v National Coal Board [1973] 1 WLR 1, 10G. I find causation proved in this case.

37.  Although contributory negligence is pleaded in the Defence, Mr Pang fairly accepted that if the court accepts that the plaintiff’s injuries were caused in the manner he described, there can be no contributory negligence.

Quantum

38.  The plaintiff was 53 when he suffered the injury in question. For the period from June 2005 to May 2008, he received physiotherapy and occupational therapy at the Tuen Mun Hospital, Yuen Long Jockey Club Clinic and Previous Blood Hospital. For a very long period of time, he was granted sick leave. The last certificate I have been shown recommended sick leave for 25 April 2009.

39.  After the injury, the plaintiff’s daily life was greatly affected. He could not walk for long. That is because when he walked, the lower part of his body would become numb and uncontrollable. He could not sit for long either. He has to turn or change his posture constantly. He has to sit properly, otherwise his thighs and calves would cramp. He has to sit on hard surface. He cannot lift or carry heavy weight. His sleep is also affected, as he suffered cramps and has to turn and change his posture. He could not participate in sports. Before the accident, he would join friends in playing football or jogging. He could no longer do this and his social life suffered. His sexual life is also affected.

40.  As I mentioned above, the plaintiff previously had an episode of back pain in early 2003 when he received one-day sick leave and a 7-day course of acupuncture. I accept his evidence that he was free of back pain after that episode until the incident complained of. Nevertheless, he did have a degenerative spine which predisposed him to back pain. Dr Tio opined that even if he did not sprain his back on the night in question, there was a 50% chance that he would have the recurrence of back pain. However, he would not expect such back pain to be debilitating, or prevent him from returning to work. Dr Lam said Dr Tio would be very kind to say it was only a 50% chance of recurrence. His opinion was that based on the MRI changes and the plaintiff’s nature of work, he would probably develop back pain which would have prevented him from working within two years of the MRI, i.e. by October 2007. In giving that opinion, Dr Lam was assuming that the plaintiff’s work involved “strenuous” labour.

41.  I do not think that there is any real difference in the opinion of the two doctors. It seems to me that the apparent divergence of their opinion stems from the different assumptions they are making. Dr Tio was expressing an opinion on the basis simply of the extent of the degenerative changes of the spine and the fact that the plaintiff had a previous episode of back pain. Dr Lam’s assumption, however, was that the kind of work the plaintiff performed on the night in question was typical of the nature of work he had to perform. Upon that assumption, I have no difficulty accepting Dr Lam’s evidence that it was likely that even if he did not have the onset of pain in June 2005, he would probably experience that within one or two years.

42.  In a case where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages : see Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523, 529. In my view, the Court should not assess those risks on the assumption that the plaintiff would be put to risks which a prudent employer would not allow his employee to take.

43.  Thus, in assessing damages for PSLA, I proceed on the following basis : I accept the plaintiff’s evidence of his present complaints and the treatment he went through. I accept that before 7 June 2005, the plaintiff already had a degenerative spine which predisposed him to back pain. There is an even chance that he would suffer recurrence of back pain, which could be treated by rest, physiotherapy and other forms of conservative treatment, but would not debilitate him permanently from work. I would also take into account the likelihood that the plaintiff’s present complaints are not entirely organic and that when the anxiety and stress associated with this litigation is over, the plaintiff may find his pain and disability to be less severe.

44.  Mr Pang has referred me to a number of awards on PSLA. These are Yau Shui Ming v Excellent Development Ltd DCPI 47/2002 (Lok DJ, 28 May 2003), Ali Shoukat v Hang Seng Bank Limited HCPI 3/2003 (Suffiad J, 23 June 2004), Chu Chung Wah v Ng Tung Pak HCPI 547/2003 (Master Jeffries, 15 December 2004), Ng Kong v Golden Caterers Ltd (Recorder E. Chan, 3 February 2005), Lam Wai Lai v Startlong Development Ltd trading as Lia Ying Hair Salon (Marlene Ng DJ, 14 April 2005), Tamang Rabichandra v VSL SWC (a firm) & another HCPI 659/2007 (Deputy High Court Judge Harris, 17 September 2008), Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Ltd HCPI 77/2007 (Suffiad J, 15 August 2008) and Manohar Chugh v Yoga Plus Ltd (in liquidation) DCPI 1064/2008 (Marlene Ng DJ, 8 December 2008).

45.  Mr Clough submitted that the “bracket” should be $350,000 to $425,000, and the appropriate award should be HK$375,000. Mr Pang, relying on the authorities he cited, submitted that the bracket should be between $160,000 and $250,000. Needless to say, the circumstances of each case vary. I find the awards made in cases where the plaintiff was disabled from prolonged walking or sitting to be of more assistance, especially where the plaintiff already had pre-existing degenerative changes before the accident.

46.  Taking into account the factors I mentioned, and the guide afforded by the authorities but making allowances for change in value of money over time where necessary, I would award $250,000 for PSLA.

Pre-trial loss of earnings

47.  The plaintiff said he was dismissed by the defendant on 31 December 2006. The defendant denied that the plaintiff was ever dismissed. There could have been a misunderstanding. The position, however, is that the defendant never asked the plaintiff to return to work.

48.  After the plaintiff has been assessed medically, he took a training course for security guards. On several occasions, he succeeded in finding a job as a security guard. Each time, however, he could not keep his job for long. This was mainly because he felt physically unable to cope with the demands of the job. On one occasion, when he had to hurry to open the gate for emergency vehicles, he took a long time to do so because of his pains. He was scolded by his employer, and he felt he had no choice but to resign.

49.  The plaintiff’s evidence, which is not really disputed and I accept, is that he worked as a security guard over the period set out below from which he derived the following remuneration :

(1)  23 April 2007 for 1 day with no remuneration.

(2)  From 13 August 2007 to 24 October 2007 at $5,200 per month for 73 days and earned a total sum of $12,653.33.

(3)  From 1 November 2007 to 8 November 2007 at $6,400 per month for 8 days and earned a total sum of $1,706.66.

(4)  From 22 December 2007 to 1 February 2008 at $6,091 per month and earned a total sum of $8,324.37.

50.  The plaintiff was unable to find any gainful employment after 2 February 2008.

51.  He claims full pre-trial loss of earnings from 7 June 2005 until trial, i.e. for about 53 months less the remuneration he received. The figure claimed is [$9,482.28 x 53 – ($12,653.33 + 1,706.66 + 8,324.37)] x 1.05 (MPF) = $503,870.30.

52.  The plaintiff was granted sick leave for a very long period. The last day he got a sick leave certificate for was 25 April 2009. The fact that he managed to work for short spells of time did not undermine the opinions of those who assessed him to be eligible for sick leave, as it is evident that he could not really hold the jobs.

53.  I have considered whether it is appropriate to reduce the pre-trial loss of earnings on account of the plaintiff’s condition before the injury. In Chan Kam Hoi v Dregages et Travaux Publics, Mortimer VP observed that pre-trial loss of earnings may be reduced if the risks during the years concerned are sufficiently high. As I noted above, I find on the evidence that although the chances that the plaintiff may suffer the recurrence of back pain to be rather high, I am not satisfied that, but for the defendant’s negligence, there would be a high chance that such back pain would debilitate the plaintiff from work. In the circumstances, I would not reduce the pre-trial loss of earnings on account of the plaintiff’s condition before the injury.

54.  I would award pre-trial loss of earning in the sum of $503,870.30 as claimed.

Post-trial loss and loss of earning capacity

55.  The plaintiff is 58 at the date of the trial. In the Revised Statement of Damages, the plaintiff claimed a multiplier of 6 and a multiplicand of $9,482 – $4,000 on the footing that the plaintiff should be able to carry out light sedentary work which it is assumed would fetch $4,000 per month.

56.  There is in addition a claim for loss of earning capacity on the basis that the plaintiff’s disability resulting from the accident put him at a disadvantage in the labour market. This head was put at $100,000.

57.  At trial, Mr Clough conceded that a more realistic multiplier for future loss of earning would be 4. The calculation then becomes : ($9,482.28 – $4,000) x 12 months x 4 x 1.05 = $276,307.

58.  Mr Clough also reduced the claim for loss of earning capacity to a sum of $24,000 (being $4,000 x 6) which is said to compensate the plaintiff for loss of earning capacity on the basis that his disadvantage in the labour market could be estimated at being out of work for 6 months during those 4 years multiplier.

59.  Mr Pang agreed that a multiplier of 4 was reasonable and did not quarrel with the claim of loss of earning capacity of $24,000.

60.  In the circumstances, I would award the sum of $276,307 for future loss of earning and $24,000 for loss of earning capacity.

Special damages

61.  The sum claimed under this head is $31,616.70. Mr Pang pointed out that the plaintiff’s evidence only supported a sum of $18,497. Mr Clough did not demur. I accordingly award special damages in the sum of $18,497.

Cost of an operation

62.  This is no longer pursued by the plaintiff.

Total award

63.  For the reasons given above, I order that judgment be entered in favour of the plaintiff for damages assessed at $1,072,674.30, being : $250,000 (PSLA) +$503,870.30 (pre-trial loss of earnings) + $276,307 (future loss of earnings) + $24,000 (loss of earning capacity) + $18,497 (special damages).

Interest

64.  Interest on PSLA would be awarded at 2% per annum from date of writ to date of judgment. Interest on pre-trial loss of earnings and special damages will be awarded at half judgment rate from 7 June 2005.

Costs

65.  I make an order nisi that the defendant shall pay the plaintiff the costs of this action, to be taxed if not agreed, and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.