YAU SHING TSAN v. FAI-TO ELDERLY AFFAIRS LTD t/a KA-TO HOME FOR THE AGED

HCPI 168/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.168 OF 2004

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J U D G M E N T

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1. The plaintiff brings this action claiming damages against his former employer, the defendant, for negligence in respect of personal injuries sustained by the plaintiff in the course of his working for the defendant.

2. The accident occurred on the morning of the 3 May 2001 in a warehouse in Kwun Tong when the plaintiff, in the course of his employment, sprained his back while trying to lift a heavy box of goods.

Background

3. The plaintiff, at the time of this accident, was 58 years old.  He started to work for the defendant in September 2000 as a supervisor at an elderly home situated at Tsuen Wan Centre which was operated and managed by the defendant.

4. As a supervisor of the elderly home, the plaintiff’s duties included processing office documents and records, arranging nurses to accompany inmates to have medical treatments, monitoring the hygiene and other miscellaneous works at the elderly home.  On occasions, when there were insufficient manpower to take care of elderly inmates at the home, he would render his assistance to help them get up from their beds on to wheelchairs and to bring them to have medical treatment on their wheelchairs.  He also had to walk around and stand for long periods of time, while working at the elderly home.

5. At about 6 p.m. on 2 May 2001, the plaintiff was instructed by Ho Yuet Ping (“Miss Ho”), the superintendent or president of the elderly home, to wait for her outside a restaurant in Kwun Tong at 10 a.m. the following morning.

6. After meeting up with Miss Ho the following morning at 10 a.m., he was taken to a nearby warehouse and asked to assist, together with other employees of the defendant, in manually moving goods stored in the warehouse, which had been purchased by Madam Ngai Ka Yee (“Madam Ngai”), a proprietor of the elderly home.

7. It was while the plaintiff was performing this work at the warehouse that he sprained his back.

Plaintiff’s case on liability

8. The plaintiff was the only witness called by the plaintiff on the issue of liability.

9. It is the plaintiff’s case that at about 10 a.m. on 3 May 2001, he met Miss Ho outside the Fuji Restaurant in Kwun Tong as arranged.  When Miss Ho arrived she took him to a nearby warehouse.  At the warehouse, he and Miss Ho met up with three other persons, namely Madam Ngai, Ms Ho Ah Wan and one other lady whom he did not know. 

10. The warehouse was situated on the fourth or fifth floor of a nearby building to the restaurant and was about 1,500 to 2,000 ft in size.  It was occupied by goods packed in black plastic bags and paper boxes.  The plaintiff was asked to carry those goods out of the warehouse to the lift lobby, and then to transport such goods down to the ground floor using the lift.  All five of them, that is the plaintiff and the four females, Miss Ho, Madam Ngai, Ms Ho Ah Wan and the other lady took part in moving the goods out of the warehouse to the ground floor.

11. The plaintiff was not provided with any tools or equipment to transport the goods both out from the warehouse to the lift lobby and also from the lift lobby down to the ground floor.  The moving of the goods was done by the plaintiff with his bare hands.  Moreover, the plaintiff did not carry out the moving work with any other of the five persons moving the goods but worked alone on his own.

12. At a later time, Ngai Shi Shing, the son of Madam Ngai arrived at the warehouse.  Ngai Shi Shing had driven to the warehouse in a private car.  When he was at the warehouse, he did not help in moving the goods, but just walked around watching the others moving the goods.

13. Some of the goods having been moved down to the ground floor were loaded onto the private car driven by Ngai Shi Shing and taken away by him in his car.

14. According to the plaintiff, there was no other male person (apart from himself and Ngai Shi Shing) who was present at the warehouse involved in this matter.

15. At about 11.10 a.m., after moving the goods for about an hour in this fashion, the plaintiff was feeling exhausted.  At that time he had to move a paper box of goods the size of which was about 1.5 ft x 1 ft x 0.5 ft and which was placed near the entrance of the warehouse.  When he bent down and was using his hands to lift this box, he felt extreme pain to his back, both legs and ankles and he yelled out.  Thereafter, he was unable to continue to move the goods because of the pain.  As a result, Madam Ngai told him to consult a doctor.  As he was unfamiliar with Kwun Tong district, he then took a bus back to Tsuen Wan. Upon his arrival back at Tsuen Wan, his son accompanied him to attend the Yan Chai Hospital to seek urgent medical treatment at the Accident and Emergency Department.

16. Before this accident, he had never been required by the defendant to do such heavy manual work.  The plaintiff alleges negligence on the part of the defendant in requiring him to carry out such heavy manual work, furthermore without providing him with the proper tools or equipment, and without giving him the proper instructions in performing such work.

Defendant’s case on liability

17. There is no dispute by the defendant that during the course of the moving of the goods, the plaintiff did claim to have suffered injury to his back and as a result, could not continue with the work.  There is therefore no serious dispute as to the accident itself.  Indeed it is the evidence of Madam Ngai that after the plaintiff sustained his back injury at the warehouse, she had assisted him in massaging his back to relief his pain, and later even accompanied him to the bus stop for him to take a bus back to Tsuen Wan.

18. However, a number of factual issues are in dispute by the defendant, not all of them relating to the direct cause of the accident.

19. The defendant called a total of four witnesses, namely Ngai Shi Shing, Madam Ngai, Miss Ho and Ng King Chung.

20. The case for the defendant was that several days before the day of the accident, Madam Ngai purchased a quantity of apron which were stored at this warehouse in Kwun Tong.  These goods were packed in carton boxes of two sizes, which weighed between 40 kg to 50 kg each carton box.

21. On the morning of the 3 May 2001, it was arranged that six persons would attend the warehouse for the purpose of removing this quantity of goods for transportation back to the elderly home for use there.  The six persons comprised of the plaintiff, Ngai Shi Shing, Madam Ngai, Miss Ho, and two other males, Lam Kong and Ng King Chung.

22. Before going to the warehouse that morning, Lam Kong and Ng King Chung had gone in the defendant’s van to another home for the aged at To Kwa Wan to collect several metal trolleys and transportation boards to be used in the moving of the goods at the warehouse.

23. When the six of them arrived at the warehouse in Kwun Tong, Ngai Shi Shing had given instructions to all of them that they had to work in pairs, two of them carrying a carton box between them and that they should not carry the carton box alone.  He also warned them to be careful not to sprain their backs.

24. When the six of them started moving the goods in the warehouse, following the instructions given by Ngai Shi Shing, they worked in pairs, two of them loading one carton box each time onto a trolley and then moving it to the cargo lift lobby.  After it was taken down to the ground floor by the lift, the trolley was drawn to the back of a lorry with an elevating platform.  The carton was then uplifted to the lorry by the elevating platform.

25. On the facts put forward by the defendant, the defendant denies that it was negligent towards the plaintiff in that it had provided the necessary equipment in the form of trolleys to be used in the operation and had given a proper instructions to the plaintiff and the other workers as to how they should go about moving the goods out of the warehouse.

Disputed issues

26. From the above, it can be seen that they are a number of disputed factual issues between the parties are.  The disputed issues can be categorised into four main categories :

(a)	whether there was available tools and equipment provided by the defendant in carrying out the work;
(b)	whether there was oral instructions given of working in pairs;
(c)	the identities of the persons present at the warehouse before the accident to the plaintiff; and
(d)	whether vans and lorries had been engaged for this operation.

There can be no question that categories (a) and (b) above have direct bearing on the issue of liability whereas categories (c) and (d) can have no direct bearing on the issue of liability, but are only relevant to the question of credibility.

Assessment of the evidence and finding of facts

27. In so far as the plaintiff’s evidence is concerned, it would appear that there was a discrepancy between his oral evidence and what was stated in paragraph 7 of his witness statement.

28. In his oral evidence, the plaintiff said that he met Miss Ho outside the Fuji Restaurant in Kwun Tong at about 10 a.m., and then the two of them proceeded to the nearby warehouse where they met up with the other three.

29. On the other hand, paragraph 7 of his witness statement seemed to suggest that the five of them went to the warehouse from the restaurant together.

30. Under cross-examination, the plaintiff explained that what he meant to say in paragraph 7 of his witness statement was the there were five people including him at the warehouse.

31. Quite apart from communication difficulties when taking instructions for the preparation of the witness statement, it was also the evidence of Ngai Shi Shing, Madam Ngai and Miss Ho that it was the plaintiff and Miss Ho who arrived at the warehouse first.

32. In the circumstances, even if there was a discrepancy in this part of the plaintiff's evidence, it was not such a discrepancy, which was of any great significance to the issues in dispute between the parties.

33. Apart from this one possible discrepancy, there was nothing else in the plaintiff's evidence, which caused me to doubt his credibility or reliability when relating how this accident happened.  In fact, I found the plaintiff to be a wholly reliable and credible witness in his recounting as to how this accident happened and I have no hesitation in accepting his evidence relating to how the accident happened.

34. In so far as the main disputed issues are concerned, which are really the dispute as to whether trolleys were supplied for the moving of the goods before the accident to the plaintiff, and whether instructions had been given to the plaintiff for him to work in pairs in moving the goods, both these disputed issues can be disposed of by looking at the timing given by the different witnesses in this case.

35. Firstly, it was the plaintiff's evidence that he met up with Miss Ho at about 10 a.m. outside the Fuji Restaurant.  It would have taken them a matter of minutes to reach the warehouse, which was described to be nearby to the restaurant.

36. It was also the plaintiff's evidence that he had worked for about an hour at the warehouse moving the goods before he met with this accident whereby he sprained his back.

37. The timing given by the plaintiff was not challenge by the defendants.

38. In fact, neither Madam Ngai nor Miss Ho gave any timing as to when they met up at the warehouse or even when they started moving the goods.  When cross-examined on the time, Miss Ho answered that she could not recall the time when she met up with the plaintiff at the Fuji Restaurant.

39. It was the evidence of Ngai Shi Shing that he came to the warehouse at about 11 a.m. that morning. 

40. It was the evidence of Ng Chung King that he set off from the elderly home in Tsuen Wan at about 10 a.m. for the elderly home at To Kwa Wan in order to pick up the several trolleys.  He arrived at the To Kwa Wan elderly home at about 10.30 a.m., and after picking up the trolleys he went along to the warehouse with them, arriving at the warehouse about 11 a.m.

41. On such evidence relating to time, I come to the finding that the plaintiff started the work at the warehouse shortly after 10:00 a.m. and that Ng Chung King and Lam Kong very likely arrived at the warehouse with the trolleys after the accident to the plaintiff.  At any event no such trolley was provided or was available when the plaintiff started to move the goods in the warehouse up to the time of his accident.

42. Furthermore, from this evidence as to time, I find that Ngai Shi Shing only came to the warehouse quite some time possibly close to 11 a.m. and well after the plaintiff had started moving the goods there, but before the arrival of Ng Chung King and Lam Kong.  I also accept the evidence of the plaintiff and find that Ngai Shi Shing did not take part in the moving of goods inside the warehouse but that he was there briefly before the accident to the plaintiff.

43. On such findings therefore, it was quite impossible for Ngai Shi Shing to have given the instructions to the plaintiff before the plaintiff started work moving the goods at the warehouse.

44. Likewise on such findings, the plaintiff could not have been supplied with any trolleys when he started to move the goods at the warehouse and no such trolley was supplied or made available to the plaintiff before his accident.

45. In coming to this finding, I have accepted all the evidence given by the plaintiff and rejected the evidence of the defendants where they differed from that of the plaintiff.

46. There are far too many major inconsistencies and discrepancies in the evidence given by the defendants’ witnesses which I had taken into account in coming to these findings.  Some of the major inconsistencies and discrepancies are as follows.

47. Firstly, the defence case was that Ngai Shi Shing, Madam Ngai, Ng King Chung and Lam Kong all four of them arrived at the warehouse at about the same time.  It was the evidence of Ngai Shi Shing that he drove his private car with Madam Ngai in it from his residential home in To Kwa Wan following the white van of the defendant in which was Ng King Chung and Lam Kong.  However, the evidence of Madam Ngai and Ng King Chung differed from that evidence of Ng Shi Shing in that they denied that the private car of Ngai Shi Shing followed the white van to the warehouse.

48. Ngai Shi Shing’s evidence was that he had given instructions to all of the workers, including the plaintiff, that they had to work in pairs, moving the heavy items and warned them of the danger of sprained back injuries.  Yet in his witness statement, on an important issue which goes to the heart of this case, there was no mention by him that he had warned the employees of the danger of sprained back injuries when he told them to work in pairs.

49. Moreover, none of the other defence witnesses was able to recall that part of the instructions that they had been warned of the danger of sprained back injuries.

50. Ngai Shi Shing also claimed to have seen pallet carts at the warehouse, other than the trolleys brought along by Ng King Chung and Lam Kong, however, apart from him, no other witness testified to seeing pellet carts at the warehouse.

51. Ngai Shi Shing also said in evidence that although he started off from his residential home at To Kwa Wan, he was not required to collect the trolleys from the To Kwa Wan elderly home because he was smartly dressed in suit and tie.  Yet at a later part of his evidence he said he also took part in the moving of the goods at the warehouse, his evidence was that he was only wearing a shirt when he helped with moving the goods at the warehouse.

52. As for the evidence of Miss Ho, she was evasive to say the least and therefore not a reliable witness.  Much of her credibility was lost when it became clear after cross-examination that she was de facto the person who was really in charge of the elderly home where the plaintiff worked, yet her witness statement was made in a fashion designed to convey a very different message.  It purported to suggest that the plaintiff was in fact the person who ran the elderly home.  I have no doubt that was done deliberately to mislead and to distance herself from what had happened in this case.

Liability

53. On the facts as I have found them, there can be no question but that the defendant, as the employer of the plaintiff, had woefully fallen down on their duty to take proper and reasonable care of the plaintiff in his work.

54. The moving of heavy goods from the warehouse as in this case was not the normal kind of work for which the plaintiff was engaged as a supervisor of the elderly home by the defendant.

55. There was no proper instructions given to the plaintiff as to how to safely go about that work.

56. No assistance or equipment was provided to the plaintiff in the moving of such heavy goods.

57. In this case, the amount of goods involved can be seen from the evidence of Ngai Shi Shing who said that the goods which had to be removed out of the warehouse by them on that day would fill up about 70% of the courtroom stacked up to the ceiling.

58. In the circumstances it cannot be said to be a simple operation by any standards.

59. When Madam Ngai was asked why professional movers were not engaged to undertake such an enormous operation, her answer that the defendant was in financial difficulty as it had just began its business, even if that answer is to be believed, highlights the fact that the defendant had paid little or no consideration or care to its employees, and in particular the plaintiff at the age that he was, when it sought to burden such a heavy task on its employees so as to save on having to pay for professional movers in an operation of this magnitude.

60. For these reasons, I have no hesitation coming to the conclusion that the defendant was in breach of its duty of care to the plaintiff and liable to him in negligence for the injuries suffered by the plaintiff in this accident.

Contributory Negligence

61. On the facts as found by me, there can be no question of the plaintiff failing to follow the instructions to lift the goods by two persons or his failure to use the metal trolleys.

62. The only other pleas on which contributory negligence is based which I need to consider are :

(a)	that the plaintiff allowed himself to lift a load which was too heavy for him; and
(b)	that the plaintiff failed to inform or notify the defendant of his pre-existing back condition thus exposing himself to a risk of injury of which he knew or ought to have known.

63. As for allowing himself to lift a load which was too heavy for him, there is no evidence that the plaintiff was ever informed of the weight of the carton box which he was asked to pick up and move out of the warehouse.  The duty must be on the defendant, as employer, to make a proper assessment of the weight of the load which the plaintiff is asked to move.  That duty cannot be on the plaintiff as employee.  Therefore if there was any fault, that fault lies with the defendant and not the plaintiff.

64. Since contributory negligence is dependant on fault, I do not find that the plaintiff was at fault in picking up the carton, the weight of which was not told to him beforehand.

65. As for the failure to inform of his pre-existing back condition, this is premised on the view of the defendant’s orthopaedic expert, Dr Chun Siu Yeung (“Dr Chun”), it was most likely from the plaintiff’s extensive degenerative changes in the lumbar and lower thoracic spine, that the plaintiff was symptomatic before the accident, despite the plaintiff saying that he had no symptoms at his lower back before the injury.

66. However, such view of Dr Chun was not shared by the plaintiff’s expert, Dr Au Ka Kau (“Dr Au”) who attributed all of the plaintiff’s back pain to the accident thereby suggesting that the degenerative changes in the plaintiff’s spine was asymptomatic before the accident.

67. As against these two views put forward by the respective experts, the plaintiff’s unchallenged evidence in this respect was that he had always enjoyed good health even at his age before the accident.  Furthermore, he had taken no sick leave in his 12 years of working, both in his first job in Hong Kong with a trading company and in his second job with the defendant, was also not challenged.

68. In the light of that unchallenged evidence of the plaintiff, I have no difficulty coming to the finding that the plaintiff’s back had not caused him any problems such that he was under any duty to have informed or notified the defendant when engaged by them as a supervisor of the elderly home.

69. This aspect of the matter will be further elaborated on when I come to deal with the issue of quantum.

70. In all the circumstances I do not find that a case of contributory negligence has been made out by the defendants against the plaintiff.

Quantum

71. I now turn to deal with the issue of quantum.

Injuries and treatment

72. On the same day after the accident, the plaintiff, with the assistance of his son, attended the Accident and Emergency Department of Yan Chai Hospital in Tsuen Wan where he was treated for the pain at his back and leg.  He was discharged after treatment.

73. However, the pain on his back and legs deteriorated in the next few days, such that the plaintiff was unable to walk.  As a result, he went back to Yan Chai Hospital for further medical treatment.  He was transferred to the Princess Margaret Hospital to receive inpatient treatment from 7 to 21 May 2001 and from 28 June to 16 August 2002.

74. He was followed up with orthopaedics, physiotherapy, occupational therapy and psychiatric treatment at the Princess Margaret Hospital, as well as outpatient treatment at the South Kwai Chung Polyclinic and also at the Cannossa Hospital for orthopaedic treatments.

75. He was given sick leave, intermittently from between 3 May 2001 until 24 April 2005.

76. The plaintiff's current complaints are :

(a)	back pain with the prolapsed intervertebral disc at L4/5 with the MRI scans of the lumbar spine showing that the nerve roots were slightly impinged but not compressed;
(b)	pain in both legs but the pain in the left leg is more intense; and
(c)	psychiatric impairment arising from the injuries sustained as a result of the accident.

77. The main disagreement between the parties over the issue of quantum can be summarised as follows :

(a)	whether the pre-existing degenerative change to the plaintiff's lumbar spine was symptomatic or asymptomatic before the accident;
(b)	whether the plaintiff’s complaint of pain in his left lower limb was attributable to the accident; and
(c)	whether the plaintiff's psychiatric symptoms (if any) were attributable to the accident.

Degenerative change to lumbar spine

78. Paragraph 49 of the medical report of Dr Chun Siu Yeung dated 8 July 2004 states :

“… although [the plaintiff] claimed that he had no symptoms at the low back whatsoever prior to the alleged injury, judging from the severe and extensive degenerative changes in the lumbar spine and lower thoracic spine, it was most likely that he was symptomatic before the accident.”

79. The reasons given by Dr Chun for this view taken by him are :

(a)	that the degenerative changes was severe and extensive;
(b)	that, according to epidemiological studies, 85% of older adults, irrespective of their occupation, reported having experienced back problem that interfered with work or recreational activities; and
(c)	according to a survey reported in Nortin M. Hadler’s Occupational Muscuoloskeletal Disorders, 2nd Ed., out of 6,913 adults surveyed 17.2% were reported to have back pain.

80. On the other hand, Dr Au was of the view that, although there was pre-existing degenerative changes to the plaintiff’s lumbar spine, it was not symptomatic and that the asymptomatic degenerative changes was only aggravated by the accident.

81. In commenting on Dr Chun’s view that the degenerative changes was most likely to be symptomatic, Dr Au stated in his supplemental report dated 9 August 2004 :

“Dr Chun thinks that it is likely for [the plaintiff] to have some intermittent law back and lower limb symptom before the said accident.  Of course, I cannot rule out such possibility; however, I think it is worthwhile to find out whether such pain, if it did exist, needed any regular consultation or treatment.  If such pain needed regular treatment that means the symptom was significant, and one should Place more weight on it.  But, as far as I understand [ the plaintiff] did not have any back symptom in the past.  Therefore, I have attributed all his back pain to the captioned accident.”

82. From the above, it can at once be seen that the view taken by Dr Chun was very much a generalisation based on statistics and in doing so, Dr Chun had given little or no weight to the plaintiff's claim that he had no back pain before the accident.

83. On the other hand, the assessment and the view taken by Dr Au was very much based on the actual case of this plaintiff and what he said as to as lack of back pain or symptom before the accident.

84. In his evidence, the plaintiff has repeated the general good condition of his health and his lack of back pain or symptom before the accident.  That evidence of the plaintiff, I have accepted and having accepted such evidence, the conclusion must follow that Dr Chun, in forming the view that he did, failed to sufficiently take that claim of the plaintiff into account.

85. In the circumstances, I prefer the view expressed by Dr Au and in having accepted the evidence of the plaintiff as to his lack of back pain or symptom before the accident, I find that the plaintiff’s degenerative condition of his spine was asymptomatic before the accident.

Left lower limb

86. I note first and foremost in this respect that the plaintiff had made such a complaint about the pain in his left lower limb as early as 7 May 2001 (see the medical report of Dr Lui Wai Hee dated 23 February 2003).

87. There is no dispute that it is the common medical findings of both orthopaedic experts, Dr Au and Dr Chun, that there is no evidence of definite compression of any nerve root on the basis of the MRI scans and that their common view is that the pain in the plaintiff’s left lower limb is probably not attributable to the compression of any nerve root.

88. It is now suggested by counsel for the plaintiff in final submission that the left leg pain may yet be attributable to his psychiatric condition.  In so submitting, some reliance is placed on what is stated by the plaintiff’s psychiatric expert Dr Peter Ho Pang Nin (“Dr Ho”) that “there could be a psychological component to his physical symptoms due to his depression and anxiety” and that “it is well known that depression could aggravate physical pain or other discomfort and a negative spiral often existed.”

89. However, when Dr Ho’s report is looked at in its entirety, apart from the general statement given by him, there is no specific mention of his left leg pain being caused by his psychiatric or psychological condition.

90. In so far as I have to make a finding in this aspect of the case, I accept that the plaintiff did have some left leg pain and as early as 7 May 2001, which was some four days after the accident.

91. The fact that this left leg pain cannot be explained orthopaedically or the fact that it is unlikely on the medical evidence presented to have come about from his psychiatric or psychological condition, does not per se mean that the plaintiff had been exaggerating.

92. Having seen the plaintiff give evidence I am quite convinced that he is not the type of person to exaggerate.  Indeed from the evidence of Madam Ngai, she has the greatest respect for him as a person and as her former teacher in China.  He has struck me as being an upright and honest person, not prone to exaggeration, dishonesty or half truths.

93. I therefore find as a fact that the plaintiff did have some left leg pain although that cannot be medically explained.  I further find from the proximity in time with the accident itself that the left leg pain was as a result of that accident.

Psychiatric symptoms

94. The plaintiff had engaged Dr Ho as his psychiatric expert in this matter.  The defendant had engaged Dr Chan Chee Hung (“Dr Chan”).

95. Dr Ho came to the view in his medical report dated 6 May 2004 that the plaintiff was diagnosed to be suffering from depressive reaction to the physical symptoms arising from the accident in question.

96. Dr Chan disagreed with that diagnosis.  In his medical report dated 4 June 2004, Dr Chan expressed his views that the plaintiff’s depression was diagnosed and treated in May 2002 after the plaintiff had tried to go back to work in April 2002 but was unsuccessful in carrying out his duties.  (That statement was factually wrong because the plaintiff had tried to return to work with the defendant on 22 and 23 May 2002, and not April 2002.)

97. Dr Chan then went on to form the view that it was the fear of losing his job which was the cause of his adjustment disorder, and that the injury to the plaintiff had caused his psychiatric symptoms in an indirect way, namely, that he found himself unable to return to his job.

98. Dr Chan went on to suggest that the plaintiff had felt a sense of loss in his health and his usual ability to command his own body, and had chosen to express his loss in a negative way which Dr Chan attributed partly to the plaintiff previously sporty living style, his fear of losing face and concern for his personal success, and partly to the prospect of getting compensation for his injury.

99. I have no hesitation in accepting the view expressed by Dr Ho in this respect that the depressive reaction to the physical symptoms arose from the accident.

100. Even on Dr Chan’s view that such adjustment disorder was likely due to his fear of losing his job must make it an indirect cause of the accident since it was the injuries from the accident which prevented the plaintiff from returning to his job with the defendant in May 2002.

101. That alone would be sufficient for his psychiatric condition to be taken into account when assessing damages in this matter.

102. As for the further view of Dr Chan that his psychiatric condition was in some ways partly attributable to the prospect of the plaintiff getting compensation for his injury, I reject that outright as being no more than pure speculation.

Pain Suffering and Loss of Amenities

103. Taking into account the above findings as to the condition of the plaintiff and its causation, and also taking into account the fact that the pre-existing degenerative condition of the plaintiff’s spine, albeit asymptomatic before the accident, I would assess a reasonable award under this head in this case to be $400,000.

Pre-trial Loss of Earnings

104. Before the accident, the plaintiff was paid a salary of $9,000 per month as the supervisor of the elderly home.  He was also supplied three free meals a day by the defendant at the elderly home.  He worked on average 26 days per month.  Therefore taking into account the free meals (estimated at $30 per day) provided to him, his pre-accident earnings come to $9,780 per month.

105. As already stated, the plaintiff was given intermittent sick leave from the time of the accident up to 25 April 2005.  Although there were some days in between when no sick leave certificates were granted, I am prepared to accede to the suggestion of counsel for the plaintiff to treat the sick leave period from the date of accident to 25 April 2005 as a continuous period of sick leave.  I do so bearing in mind that the plaintiff had attempted to return to his pre-accident work with the defendant in May 2002 for 2 days but found in the process that he was unable to carry out that work because of his physical condition as a result of the accident.

106. I therefore assess his pre-trial loss of earnings at $9,780 x 51 months which gives $498,780.

Future Loss of Earnings

107. The plaintiff is now 62 years old.

108. Future loss of earnings is claimed on the basis that the plaintiff could work until 70 and even if he had to retire at 65 with the defendant, he would be able to continue with a similar job after his retirement at 65 given his robust health before the accident.

109. I do not accept that submission in the light of the medical evidence relating to the plaintiff’s pre-existing degenerative changes in his spine.

110. In all the circumstances of this case, I am only prepared to adopt a multiplier of 1.5 in assessing future loss of earnings.

111. For the multiplicand, I see no reason why I should not adopt the same multiplicand as for pre-trial loss of earnings :

$9,780 x 12 x 1.5 gives $176,040.

Loss of Earnings Capacity

112. Given all the circumstances of this case, the fact that the plaintiff is almost at the end of his working life, the degenerative condition of his spine which was pre-existing at the time of the accident, the fact that he has been compensated for future loss of earnings, it would not be reasonable to make a further award for loss of earnings capacity.

113. Accordingly there will be no award under this head of claim.

Loss of MPF Benefits

114. MPF was made mandatory by statute and became effective in December 2001.  The accident in this case occurred in May 2001.  Therefore although 51 months was applied for the pre-trial loss of earnings, in so far as MPF for the pre-trial loss of earnings is concerned, it should only be for 45 months.  Moreover, it should only relate to the basic monthly salary of $9,000.

115. Therefore, for the pre-trial loss of MPF, it would be 5% of $9,000 x 45 months which gives $20,250.

116. For the future loss of earnings, it would be simply 5% of $176,040 which gives $8,802.

Other Special Damages

117. Past medical expenses is agreed between the parties at $19,882.

118. Travelling expenses is claimed at $7,490.  In view of the length of time taken for the continuing follow up treatment of the plaintiff, the amount claimed is reasonable enough and will be allowed.

119. The claim for tonic food will be allowed at $5,000 as being reasonably incurred.

120. There is a further claim for $1,000 spent on two massage tools. In view of the kind of injury suffered by the plaintiff, and there is some evidence from the plaintiff that he had been advised by the physiotherapist to use such massage equipment, the amount claimed appears to be reasonable, that claim will be allowed.

121. Total amount assessed for special damages comes to $33,372.

Future Medical Expenses and travelling

122. The plaintiff claims $48,000 based on the advice of Dr Ho for future psychiatric treatment.

123. Whilst the defendant’s expert, Dr Chan, also agrees that the plaintiff should continue to receive psychiatric treatment, he takes the view that the plaintiff should continue with the treatment plan given by Dr Wat and Miss Wong at South Kwai Chung Psychiatric Centre and that his symptoms would improve further after settlement of the litigation.

124. The suggestion of Dr Ho in respect of the cost of the future treatment at $48,000 is based on treatment in the private sector.  The plaintiff has been receiving treatment at the public sector and in the absence of any cogent reasons why the plaintiff should switch over to receive treatment in the private sector, the claim is not a reasonable one.

125. As for future travelling, whether or not the plaintiff receive treatment from the public or private sector, it will involve some travelling for such treatment.  The defendants have agreed to $500 for future travelling and that sum will be allowed.

Interest

126. The usual rate of interests will apply, namely 2% for general damages for pain suffering and loss of amenities from the date of the Writ and 4.122% (being half judgment rate) for special damages, pre-trial loss of earnings including pre-trial MPF from the date of accident.

Summary of awards

From this amount of $1,246,183 need be deducted the amount of ECC payment of $425,615.90 already received by the plaintiff.  The final figure therefore comes to $820,567.10.

Conclusion

128. There will be judgment for the plaintiff against the defendant in the sum of $820,567.10.

Costs

129. There will be a costs order nisi that the defendant pays the plaintiff the costs of this action, to be taxed if not agreed.  Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.