POON KWOK WING ERNEST v. AIRPORT AUTHORITY HONG KONG

[English Translation - 英譯本]
HCPI 305/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 305 OF 2004

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JUDGMENT

1. The plaintiff fell down an escalator and sustained injuries in the course of work.  He claims damages from his employer, the defendant.

2. The plaintiff used to be legally represented but has acted in person since 7 April 2007.  Both liability and quantum are at issue.

I.  Liability

Plaintiff’s case

3. The plaintiff was employed by the defendant as a kerb supervisor and, as such, was responsible for directing traffic.

4. The defendant was responsible for the management of Chek Lap Kok Airport.

5. Sometime between 1 and 2 p.m. on 9 April 2001, the plaintiff was in the airport taking an escalator (No. TIV2) down from level L5 to level L3.  The length of the escalator was 20 odd steps.  After it moved for a distance of 4 to 5 steps, it suddenly stopped.  The plaintiff lost balance, fell and rolled all the way down to the bottom of the escalator and was injured.

6. The plaintiff says that the escalator often stopped, so at the material time he was holding firmly onto the handrail of the escalator.  He did not notice anyone press an emergency button to stop the escalator.

7. The plaintiff says there were two emergency buttons for the escalator, one at each end of the escalator.  He did not see anyone at the bottom exit point.  At the time of the accident, he was about 5 steps away from top starting point.  He did not hear any sound; had he heard a sound, he would certainly have turned his head to look.

8. According to the repair and maintenance record concerning 6 escalators (including TIV2) compiled by the escalator contractor CNIM, from April 2000 to April 2001, there had been 30 occasions of the escalators “being reset and moving again” (not including a separate occasion of “power failure, being reset and moving again”), which means the escalators stopped for no reason and had to be reactivated, and these occasions did not include other breakdowns for specified reasons.  Of these 30 occasions, 6 were related to TIV2.  On 27 February 2001, another escalator, no. PE4, stopped for no reason 3 times in one day.

9. The plaintiff alleges that, besides what has been set out in the repair and maintenance record, there were many other occasions on which the escalators stopped.  If the patrolling officer was able to reactivate the escalator with a key without having to request CNIM to send someone to repair the escalator, then the incident would not be reported to the Control Room, and hence the defendant would not have any record of the incident.  The plaintiff helped inspect the escalators and, without authority, had made a duplicate of the key so that he could conveniently reactivate the escalators without having to return to the Control Room to get the key whenever an escalator stopped.

10. The plaintiff’s witness Mr. Chau Wai Chuen (周偉全) is a former employee of the defendant.  At the material time, he was a Senior Landside Supervisor.  His duties included monitoring the operation of the escalators.  He says that there were only two, not three, key-operated activating switches for each escalator and that the activating keys were distributed to all staff members and therefore they did not have to make duplicate keys without authority.  If an escalator stopped moving, the staff member concerned should report to the plaintiff, but Mr. Chau does not rule out the possibility that some staff members did not take the trouble to do so.  He also says that before the accident there was no notice at or around the escalators advising users to hold the handrail firmly.

Defendant’s case

11. Mr. Ma Siu Lun (馬兆麟) is a registered escalator engineer.  He was an employee of CNIM from 1997 to 2003 and, as such, was responsible for the repair and maintenance of all the escalators in the airport.  The repair and maintenance schedule was as follows:

(1)     Routine maintenance: once a week, took one hour, work included ordinary checking and cleaning to prevent malfunction;

(2)     Greasing: once every 4 months, took 3 hours, applied to components including the step chain, pin and bushing, and the chain wheels;

(3)     Service and maintenance examination: once every 6 months, took 9 hours, involved part-by-part overall examination of the escalators, work included replacing the consumable parts, adjusting the major components, testing the safety devices, measuring errors and thoroughly cleaning the major components;

(4)     Overhaul: once every 12 months, took 18 hours, work included thoroughly checking the brake and all safety devices, and repairing and replacing components.

12. The repair and maintenance record of CNIM shows that on 11 April 2001 (i.e. two days after the accident), a yearly examination was conducted on escalator TIV2 and that it was examined by the Electrical and Mechanical Services Department (hereinafter “the EMSD”) on 12 April.  Mr. Ma says that the escalators in the airport met the requirements of the EMSD’s relevant codes of practice and were in safe working conditions.

13. Mr. Ma says that on the day of the accident, he went to the scene upon being notified of the accident.  Having conducted an examination, he concluded that someone had pressed the emergency button, causing the escalator to stop.

14. Mr. Ma explains that the emergency button of the escalator had a spring device.  After the button was pressed, it would automatically return to its original position so that no one would notice that the button had been pressed.  On the outside of the escalator there were a total of 3 key-operated activating switches, two of which were each next to an emergency button, and the third one was on the other side at the top part of the escalator.  Mr. Ma says that after the accident he only had to operate the switches beside the emergency buttons but did not have to operate the third switch, which means that the escalator stopped because an emergency button had been pressed and not because of mechanical failure or oversensitivity of the sensor.

Relevant legislation

15. Part IV of the Lifts and Escalators (Safety) Ordinance (Cap. 327) requires lifts and escalators to be periodically maintained and examined:

(1)     The owner of every lift and the owner of every escalator shall, to the satisfaction of the Director of Electrical and Mechanical Services, cause the lift or escalator, all machinery and equipment connected therewith and the safety equipment provided therefor to be inspected, cleaned, oiled and adjusted by a registered lift contractor or a registered escalator contractor, as the case may be, at intervals not exceeding one month (section 19(1));

(2)     The owner of every lift shall, at intervals not exceeding 12 months, cause the lift to be thoroughly examined by a registered lift engineer … (section 21);

(3)     The owner of every escalator shall, at intervals not exceeding 6 months, cause the escalator to be thoroughly examined by a registered escalator engineer in order to determine whether the escalator and all machinery and equipment connected therewith is in safe working order (section 22).

Applicable principles

16. In the case of Kam Wai Ming v MTR Corporation Ltd & anor DCPI 408/2002 (11 December 2003), District Judge Carlson (as he then was) cited two Canadian cases concerning escalator accidents: Empire Co Ltd v Sheppard (2001) 103 ACWS (3d) 436, a case of the Court of Appeal of Newfoundland, and Naicken v Edmonton City [1997] AR Lexis 1507; 197 AR 331, a case of the High Court of Alberta.

17. In Empire, Wells CJ, the Chief Justice of Newfoundland, pointed out that although it can be inferred from experience that an escalator is not inherently dangerous, an escalator is a machinery with a high potential for injury and damage if it is not (1) operated and maintained with a high standard of care by the owner or operator; and (2) used with care, caution and alert attention by the users (see Kam Wai Ming at 15M-16B).

18. In Naicken, which involved the issue of the speed with which an escalator stopped, Langston J remarked that escalator users must assume a risk that escalators are designed to stop quickly in certain circumstances.  Common sense and common experience suggests that the escalator must react quickly when people are caught on its sides or in the protrusions which form the steps.  At the same time, it must not stop so suddenly as to propel riders off the steps.  To succeed in his claim, the plaintiff must establish that reasonable care was not exercised in relation to the operation or maintenance of the escalator in question, which caused it to stop abruptly and thus demonstrated that it failed to meet the accepted standards.  If an inference, in the absence of evidence, is properly drawn that the incident was caused by negligence, the plaintiff will succeed unless there is some evidence to displace the inference.  The drawing of an inference of negligence is in essence a common sense application of circumstantial evidence.  The plaintiff must show, on the basis of common experience or the facts disclosed but not the injury itself, that the accident happened because the defendant had not taken reasonable care (see Kam Wai Ming at 14C-15J).

19. In Kam Wai Ming, Judge Carlson held that it was not necessarily correct that if there was no defect, the escalator would not have stopped (see 17I-L), and that the doctrine of res ipsa loquitur was not applicable (see 18B-I).

20. The relevant principles can be summarized as follows:

(1)     In view of the danger of mechanical malfunctioning of escalators, the owners and those responsible for repair and maintenance should operate and maintain the escalators with a reasonable standard of care;

(2)     Escalators are designed to stop quickly in certain circumstances and it is a risk that users must assume;

(3)     Users are under a duty to use escalators with care, caution and alert attention;

(4)     The plaintiff must establish that the escalator had not been operated or maintained with reasonable care, which caused it to stop in an abnormal manner, e.g. there were jerks, it moved on-and-off, the stopping distance was too short etc;

(5)     In the absence of direct evidence, the court can draw an inference of negligence from common sense and circumstantial evidence.

Discussion

21. The plaintiff challenges the credibility and/or reliability of Mr. Ma’s evidence:

(1)     According to the repair and maintenance record of CNIM, the engineer and the technician who examined escalator TIV2 from 13:30 to 13:45 on the day of the accident were respectively a person surnamed Fung and a person surnamed Cheng, but there was no signature of Mr. Ma, whose signatures could be found on other records.

(2)     The Occurrence Report prepared by Mr. Ma states that: “At 13:20 we were informed of the accident, and our technicians arrived at 13:45 …”  The report does not indicate that Mr. Ma went to the scene in person;

(3)     Mr. Ma points out in his witness statement that a major examination was conducted on TIV2 on 28 and 29 March 2001 and no defect was found.  When giving evidence at trial, however, he made a correction by saying that, according to the repair and maintenance record, no annual examination was conducted on 28 and 29 March 2001 and the previous annual examination took place from 4 to 12 October 2000;

(5)     According to the Investigation Report supplied by CNIM to the defendant, an overhaul was conducted on TIV2 on 28 and 29 March 2001.  Now that Mr. Ma concedes that there was no annual examination at the material time, it appears that CNIM misled the defendant;

(6)     The repair and maintenance record shows that an annual examination was carried out on 19 and 20 April 2000.  The plaintiff queries why annual examinations were conducted so frequently and suspects that there has been exaggeration in this respect;

(7)     Furthermore, the repair and maintenance record shows that the annual examination on 11 April 2001 was done in only 40 minutes, not 18 hours as stated by Mr. Ma.  Mr. Ma says that this annual examination was in fact cleaning work, and on this basis the repair and maintenance record of CNIM was not reliable.

22. Mr. Chung, Counsel for the defendant, challenges the credibility of the plaintiff:

(1)     In the statement that he gave to the loss adjuster (McClarens), the plaintiff said that at the material time he was holding the handrail, not holding the handrail firmly;

(2)     There were discrepancies between the evidence of the plaintiff and that of Mr. Chau as to whether the activating keys were distributed to the staff members or whether the staff members had to make duplicate keys without authority;

(3)     In his witness statement, the plaintiff made no mention of making a duplicate key without permission and reactivating the escalators on his own without reporting to the Control Room, and his allegation insisting that he had told his lawyer about it is incredible;

(4)     He applied for early retirement on the ground that he was unable to move luggage, thereby concealing the fact that his duty was to direct traffic and that helping people move luggage was merely part of the attitude towards work.  The plaintiff has also concealed the fact that after he resumed work, he was assigned to keep an eye on touting activities and was not required to direct traffic or move luggage;

(5) The plaintiff’s allegation that he has to walk with the help of a walking stick is inconsistent with the medical evidence, and his explanation that he was too embarrassed to tell the experts about it is unbelievable.  This will be dealt with in detail hereinbelow, under the section “Quantum”.

23. Mr. Chung also challenges Mr. Chau’s credibility:

(1)     Mr. Chau alleged that there was no notice at or around the escalator telling users to hold the handrail firmly, but after being shown relevant photographs, he agreed that there was such a notice.  He tried to explain away what he had said by saying that when he said “no”, he meant “not conspicuous”;

(2)     He said that the escalator had only two, not three, key-operated activating switches, and photographs were produced to support his evidence.  Under cross-examination he conceded that it was possible that the escalator depicted in those photographs was not TIV2;

(3)     In his evidence-in-chief, he said that prior to the accident there was no notice at or around the escalator asking users to hold the handrail firmly, but under cross-examination he conceded that what he had said was not correct.

24. Mr. Ma failed to give a satisfactory explanation as to why he did not sign on the repair and maintenance record, or why the Occurrence Report prepared by him only mentioned that the technicians arrived at the scene but was silent on his arrival.

25. More importantly, when he was asked what conclusion CNIM drew from the fact that within one year the 6 escalators stopped 30 times, Mr. Ma gave a surprising answer that he came to know about that fact only when he was in court.  Being the registered engineer of the escalator in question, he simply could not shirk his responsibilities.

26. The plaintiff says that at the time of the accident, nobody behind him stopped the escalator by pressing the “stop” button.  Although he appears fat, he was a part-time auxiliary police constable at the material time and should have a keen sense of what was going on around him.  He was merely 5 steps away from the starting point of the escalator and would have been able to sense any unusual movement.

27. The plaintiff’s allegation that from time to time the escalators stopped for no reason is supported by the defendant’s repair and maintenance record.  I am satisfied that the escalators did from time to time stop for no reason.

28. In my judgment, Mr. Ma is not a credible and/or reliable witness.

29. I accept the plaintiff’s evidence and reject the allegation that someone stopped the escalator by pressing the emergency button.

30. On the premise that the possibility of someone having pressed the emergency button is discarded, the reason for the stoppage of the escalator at the material time is not apparent from the available evidence.

31. The plaintiff’s case is that at the time of the accident he was firmly holding the handrail of the escalator.  He says the escalator suddenly stopped but does not point out anything unusual with the escalator, e.g. there were jerks, it moved on-and-off or the stopping distance was too short.  Judging from experience, when an escalator stops abruptly, a user who is firmly holding the handrail will not lose balance and fall.  If I believe that the plaintiff was indeed holding the handrail at the material time but still fell down, then I have to consider whether the escalator stopped too abruptly.  The issue is whether the plaintiff was indeed firmly holding the handrail, and the answer depends on his credibility.

32. I have considered the plaintiff’s evidence as a whole, in particular the exaggeration and falsity in his evidence on quantum (e.g. his early retirement on the ground of being unable to move luggage, the fact that he was not required to direct traffic or move luggage after he resumed work, and his evidence that he was too embarrassed to tell the experts that he had to walk with the help of a walking stick: for details see hereinbelow, under the section “Quantum”).  Despite my reservations about the defendant’s evidence on the repair and maintenance of the escalator, I conclude that the plaintiff’s allegation that he was firmly holding the handrail of the escalator is unbelievable.

33. I now turn to consider whether the escalator was maintained with a reasonable standard of care.

34. The particulars of negligence and/or breach of duty of care as set out in the statement of claim can be summarized as follows:

(1)     Failing to take adequate care for the plaintiff’s safety;

(2)     Failing to take adequate precautions in respect of the plaintiff’s work at the site;

(3)     Exposing the plaintiff to hazard and/or risk of injury or damage which the defendant knew or ought to have known;

(4)     Failing to maintain a safe place of work and a safe passageway for the plaintiff;

(5)     Failing to ensure that the escalator was free from any hazard before allowing the plaintiff to use it;

(6)     Failing to ensure that the escalator would not suddenly stop when the plaintiff was using it;

(7)     Failing to take adequate measures to ensure that the site was safe and free from hazard;

(8)     Failing, adequately and timely or at all, to examine, inspect, repair or maintain the escalator which was unsafe, damaged or dangerous.

35. I notice that the particulars of negligence set out in the statement of claim do not refer to the numerous occasions on which the escalators stopped for no reason.  On the other hand, in his witness statement Mr. Chau did refer to the instances of unexplained stoppages as set out in the repair and maintenance record.

36. I agree with Mr. Chung’s submission that the mere stoppage of an escalator which resulted in someone falling down and sustaining injuries does not mean that the defendant was negligent. All escalators are designed to stop automatically in cases of overloading or intrusion of foreign objects upon the escalator.  Therefore, it cannot be said that the defendant must ensure that the escalators would not stop suddenly.

37. Mr. Chung submits that the defendant entrusted the repair and maintenance of the escalators to a qualified contractor, and no problem was discovered in the annual examination conducted by CNIM on 11 April 2001 and in the examination carried out by the EMSD on 12 April, and hence the plaintiff has failed to establish negligence on the part of the defendant.

38. The Lifts and Escalators (Safety) Ordinance imposes statutory duties on owners of escalators, and these duties are not wholly delegable.

39. Furthermore, being the management authority of the airport, the defendant is under a common duty of care to prevent a visitor from being endangered by the premises.  The escalator in question directly connects two floors which are two levels apart, and the consequences of someone falling down the escalator will be more serious than those of someone falling down the usual type of escalator which connects two consecutive floors.  The occupier is therefore expected to take extra care.

40. The defendant was informed about the repair and maintenance record, and its representative had signed on it.  The defendant did know of or ought to have known of the incidents recorded therein.

41. The plaintiff refers to some stoppages which had not been reported to the defendant.  As the defendant had no knowledge of such incidents, I must put aside such evidence and will not make any speculation against the defendant.

42. As for the examination conducted by the EMSD on 11 April 2001, the relevant report has not been produced as exhibit.  Evidence on the conclusion reached in the report comes solely from Mr. Ma and I take it with a pinch of salt.  I must consider all the evidence.

43. The plaintiff queries whether the defendant examined the escalators once every 6 months.  Mr. Ma says that the escalators were thoroughly examined once a year, which prima facie failed to meet the requirement under section 22 of the Lifts and Escalators (Safety) Ordinance that every escalator shall be thoroughly examined once every 6 months.  However, apart from annual examinations, the defendant also conducted maintenance examinations once every 6 months.  Judging from the 6 months’ maintenance items listed by the defendant and the Half-Yearly Examination Report on the Escalators, it would appear that the examination covered both mechanical and safety aspects.  The last major examination before that was conducted approximately 6 months ago and did not exceed the time limit.  In any event, the maintenance examination did not reveal the cause of the unexplained escalator stoppage.  This being the case, I have to consider all the evidence.

44. The repair and maintenance record of CNIM shows that for unknown reasons the 6 escalators stopped 30 times within one year, 6 of which were attributable to TIV2.  The occurrences were rather frequent.  A maintenance contractor with a sense of responsibility should have ascertained the cause(s) of the stoppages and devised solutions thereto.  On each occasion, however, CNIM did no more than sending someone to reset and reactivate the escalator.  These were only stopgap measures that could not resolve the problem.  Mr. Ma did not even know how many unexplained stoppages had happened.  This is evidence of incompetence.

45. It is true that, judging from common experience, the stoppages occurred more frequently than usual.  That said, there is no evidence of other unusual circumstances such as jerks, on-and-off movements or insufficient stopping distance.

46. The plaintiff says that the escalator stoppages had been happening for a long time.  Mr. Chau has adduced as evidence a report that he submitted to the defendant on 2 December 1998 when he was still under the defendant’s employ.  The report listed the problems with the 6 escalators, referring to instance such as shoes being easily trapped in the gaps, but no mention was made of unusual stoppages.

47. In the absence of unusual circumstances, the fact that the escalator suddenly stopped cannot by itself give rise to the inference that the defendant was negligent.  Nor can an inference of negligence be made against the defendant on the basis of the number of stoppages.  Even if the examinations had been conducted negligently in that they failed to ascertain the reason(s) for the stoppages, this would not necessarily have been the cause of the plaintiff’s injuries.  Furthermore, I have rejected the plaintiff’s evidence that he was firmly holding the handrail at the material time.

48. For the above reasons, I find that the defendant was not negligent and that it was not in breach of any duty of an employer and/or the common duty of care imposed on an occupier of the premises.  The plaintiff’s claim is dismissed.

II.      Quantum

49. Although I have given judgment in favour of the defendant on the issue of liability, I now proceed to assess the damages to which the plaintiff would be entitled if his claim succeeded.

50. The plaintiff was aged 47 at the time of the accident (19 April 2001).  He is now 55 years old.

51. Prior to the accident, the plaintiff worked as a traffic supervisor, but out of his good attitude towards work, he would occasionally help passengers move their luggage so that vehicles could be driven away as soon as possible.

52. The injuries sustained by the plaintiff as a result of the accident included concussion, contusion to the neck and back, sprain injuries to the left knee and left ankle.  At present, the plaintiff is still complaining of pain in the neck, lower back and ankle and inability to stand, walk or sit for more than 30 minutes.  He also complains of neurasthenia and erectile dysfunction.

53. On 21 October 2001 the plaintiff underwent a magnetic resonance imaging scan (MRI) of his spine, which showed disc prolapses at L2 to L5 regions.

54. He was granted sick leave from 9 April 2001 to 17 December 2002.

55. After the sick leave period the plaintiff resumed work as a traffic supervisor, but after only a few days he was assigned to do anti-touting work instead because he could not remain in a standing position for a long time.  He was instructed to watch out for vehicles without passenger service licences (commonly known as “white number plate vehicles”) and to call the police through the radio communication system to request them to enforce the relevant law.  He had no authority to issue summonses or make arrests.  He could sit down while keeping watch.

56. The plaintiff was scheduled for a laminectomy decompression operation at Princess Margaret Hospital on 29 January 2002, but in the end he did not consent to undergo the operation.

57. In August 2002, the plaintiff resigned from the defendant.  At the time of his resignation, his monthly salary was $19,124.80.  He says that as a traffic supervisor he had to work in shifts of 12 hours each and had to keep standing or walking about during working hours.

58. Princess Margaret Hospital issued a certificate on 26 February 2003, certifying that the plaintiff was injured at work in April 2001 resulting in low back pain and that MRI revealed disc prolapses from L2 to L5.  An occupation therapy assessment showed that he was “below job requirement”.

59. Princess Margaret Hospital issued another certificate on 31 May 2003, certifying that the plaintiff was not fit for jobs that required lifting heavy objects.  The plaintiff said that, as his job required him to move luggage for customers, he would be exposed to the risk of exacerbation of his spinal problem.  Therefore, his application for retirement for medical reasons gained support.

60. The plaintiff alleges that thereafter he was unable to obtain a suitable job.

61. The relevant medical reports are as follows:

(1)     Memoranda prepared by physiotherapist Wong Tsan Hung

(a)      Mr. Wong was the plaintiff’s physiotherapist.  In his 8 memoranda from 10 July 2001 to 19 November 2002, he pointed out that the plaintiff’s corpulence and overweight body (200 lbs) was hindering improvement of his back, and that the plaintiff should practise swimming, reduce his weight and seek advice from a nutritionist.

62. According to the medical reports and the weight measurement taken in court, the plaintiff’s body weight changed as follows:

August 2001: 200 lbs; January 2004: 210 lbs; July 2004: 213 lbs; September 2008: 222 lbs.

(2)     Dr. Chang Shao’s report (12 July 2002)

63. Dr. Chang was the orthopaedist arranged by the defendant to treat the plaintiff.  Dr. Chang referred to the government doctor’s diagnosis of spinal stenosis at L3-L4, which was consistent with the plaintiff’s claudication (which, according to Dr. Chang’s explanatory note, means pain induced by a brief period of walking and relieved by taking a rest).  Six months of conservative treatment was required for the plaintiff’s spinal injury.  If there was no improvement, the plaintiff should undergo laminectomy, followed by convalescence for 3 months.  The total recovery period was therefore 9 months, but this might be extended to 12 months on account of delay and other problems.  According to the plaintiff’s description, his original job involved a lot of standing and walking, and Dr. Chang advised the plaintiff to obtain a job of a sedentary nature, such as a cashier.

(3)     Dr. Yeung Sai Hung’s report (7 November 2003)

64. Dr. Yeung was the doctor in charge of the plaintiff’s case at Princess Margaret Hospital. Dr. Yeung opined that the changes to the plaintiff’s lumbar spine as shown by the MRI were indicative of lumbar spondylosis, which was usually caused by aging.  However, the accident in April 2001 might have exacerbated the plaintiff’s back problem.  Dr. Yeung had explained to the plaintiff the pros and cons of surgical treatment and conservative treatment, and the plaintiff preferred the latter.

(4)     Dr. Chiang Si Chung’s report (4 January 2004)

65. Dr. Chiang, an orthopaedic expert instructed by the plaintiff, pointed out that the pain of which the plaintiff complained mainly occurred in the lumbar spine from L1 to L5.  The neck, knee and ankles did not sustain structural injury and were in a satisfactory condition.  Dr. Yeung Sai Hung’s report pointed out that there were multiple disc prolapses at the plaintiff’s lumbar spine (L2/3, L3/4 and L4/5).  An intervertebral disc prolapse caused by fall injuries was normally confined to one section and occasionally involved two sections, and multiple prolapses were rare.  Multiple disc prolapses were likely to be pre-existing and were usually caused by degeneration.  Spinal stenosis was a form of degeneration.  And the presence of osteophytes at multiple sections of the plaintiff’s lumbar spine was indicative of a moderate degree of degeneration.  The degenerative changes in the plaintiff’s lower back were possibly asymptomatic before the accident, but it was difficult to tell whether the condition was aggravated by the accident.  Even if the accident had not occurred, the plaintiff would still develop back problems within 5 to 8 years from the date of the MRI, as a result of which he would have to switch to a lighter job.  The operation suggested by the doctors at Princess Margaret Hospital was still viable, with a high or very high probability of success and a slight chance of complications.  Three months would be needed for post-operation convalescence.  If the operation was successful, the plaintiff could return to his pre-accident job although, with a reduced weight-carrying ability, he should avoid lifting heavy objects.

(5)     Dr. David H.F. Cheng’s report (7 July 2004)

66. Dr. Cheng was the orthopaedic expert instructed by the defendant.  The condition of the plaintiff’s neck was normal for his age and no physical injury to his neck was detected.  Dr. Cheng opined that the plaintiff’s back pain was a subjective complaint and that there was no positive indication of any neurological involvement.  The multiple level disc degeneration and spinal stenosis were pre-existing conditions of wear and tear and might be a result of the plaintiff’s corpulence.  They were not caused by the accident.  There was no correlation between the alleged erectile dysfunction and the accident, a view which Dr. Cheng believed that Dr. Chiang shared.  The plaintiff could safely resume his pre-accident work of a traffic supervisor, because he was only occasionally required to assist the passengers in moving luggage and there were breaks during working hours.  He in fact resumed his original work in 2002, and hence he did not have to switch job.  In the absence of a clear indication of neurological impairment, there was no need for any surgery.  Given that the plaintiff was overweight and suffering from gouty arthritis as well as serious back degeneration, Dr. Cheng agreed with Dr. Chiang’s opinion that the plaintiff would have to switch to a lighter job within 5 to 8 years from the date of the MRI.

67. In my judgment, the plaintiff is exaggerating his injuries, and what he says is not entirely believable:

(1)     He had never told the doctors or the experts that in the 8 months after he resumed working, he was responsible for anti-touting work instead of directing traffic or moving luggage;

(2)     He applied for retirement for medical reasons, alleging that he was required to move luggage in his work, but that is not true;

(3)     He testified that he resigned because he was unable to chase and catch those who touted for business.  In fact, however, he had no authority to enforce the law and could only inform others through his walkie-talkie and ask them to take action;

(4)     In court he appeared to walk with a bad limp and had to use a walking stick, but the experts instructed by both parties pointed out that he walked with a normal gait and no mention was made of any walking stick.  The claudication referred to by Dr. Chang Shao means pain induced by a brief period of walking and relieved by taking a rest.  The plaintiff explained that he did not tell the experts that he needed a walking stick because he found it embarrassing;

(5)     He claimed that he had been losing body weight, but the fact is that from the date of accident to the present he has gained approximately 22 lbs of body weight.

Pain, suffering and loss of amenities

68. The plaintiff claims $300,000 under this head.  The Amended Statement of Damages states that the injuries are less serious than the “serious injury” category as defined in Chan Pui Ki v Leung On & Anor HCA 2006/1992 (30 October 1995); [1995] HKLY 534.

69. Mr. Chung submits that the finding made by Dr. Cheng, the defendant’s expert, was that the degeneration of the plaintiff’s spine might be a result of his corpulence and had nothing to do with the accident, whereas Dr. Chiang, the plaintiff’s expert, pointed out that the degenerative changes in the plaintiff’s low back were possibly asymptomatic before the accident but that it was difficult to tell whether the condition was aggravated by the accident.  On this basis, Mr. Chung submits that the plaintiff’s low back pain was not caused by the accident.

70. Although the medical reports commented that the accident might not be the cause of the plaintiff’s low back pain and I suspect that the plaintiff has exaggerated his condition, I remain satisfied that before the accident there was pain in the plaintiff’s low back and that he felt pain in the low back only after the accident, and I find that the accident hastened the surfacing of his low back pain.

71. Mr. Chung contends that even if the accident resulted in the surfacing of his low back pain, the damages for pain, suffering and loss of amenities payable should, leaving aside the plaintiff’s pre-existing problems, only be $100,000.

72. Mr. Chung cites the following cases: Lee Yuk Lan v Royaltelle International Ltd t/a The Royal Garden HCPI 187/1995, heard before Beeson J (5 August 1999); Tam Yuen Hoi v Chan Muk Sing (陳牧成) and Ors HCPI 983/2001, heard before Deputy High Court Judge To (1 August 2003); Chan Chung Keung v Greenroll Ltd t/a Conrad Hong Kong HCPI 275/2005, heard before Deputy High Court Judge Carlson (20 December 2005); Ahmed Masood v Chung Kau Engineering Co Ltd DCPI 517/2003, heard before District Judge Marlene Ng (28 January 2005); Lam Wa Lai v Startlong Development Ltd t/a Lai Ying Hair Salon DCPI 624/2003, heard before District Judge Marlene Ng (14 April 2005); Lam Kei Fung v Incorporated Owners of Yue Tin Court DCPI 1237/2005, heard before District Judge Mimmie Chan (2 April 2008) (see Annex 1 for the summaries of facts).  These cases indicate that the damages payable should be in the region of $50,000 to $180,000.

73. Mr. Chung contends that, as the plaintiff could walk with a normal gait when he underwent examination and did not need any walking stick, the damages payable to him should be $100,000.

74. In my view, the reason given by the plaintiff for early retirement was not entirely true and there is exaggeration in his evidence that he needs a walking stick to support him when he walks.

75. If not all the injuries of a plaintiff are pathological, or if a plaintiff’s major complaint is pain, then his own evidence is very important when it comes to assessing the extent of his injuries.  When his credibility is called into question, it will be very difficult for the court to accurately assess the extent of his injuries, and the court can only try its best to make an objective assessment.

76. The plaintiff herein fell down an escalator by some 20 steps and was injured.  Normally, he would suffer a certain degree of pain.  His mental condition was not poor and was similar to that of a plaintiff in an ordinary personal injuries action.  Leaving aside the plaintiff’s pre-existing problems, I assess the damages for pain, suffering and loss of amenities at $100,000.

77. However, the plaintiff’s back was already suffering from pre-existing degeneration.  Dr. Chiang pointed out that even if the accident had not occurred, the condition of the plaintiff’s back would deteriorate so that 5 to 8 years after the MRI (i.e. 5½ years (2006) to 8½ years (2009) after the accident) he would have to switch to a lighter job.  It follows that any damages for pain, suffering and loss of amenities should be reduced.

78. In Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, the plaintiff, a carpenter, was injured at his back in the course of work.  He was aged 45 at the time of the accident.   He had a pre-existing degenerative condition of the back which was quite severe but displayed no symptom.  At trial he was aged 53.  Even if the accident had not occurred, he would have to give up his pre-accident job by the age of 55 (i.e. 10 years after the accident).  The trial judge discounted the damages which he would otherwise have awarded for pain, suffering and loss of amenities, pre-trial loss of earnings and special damages by 45%.  This was upheld by the Court of Appeal.  Mr. Chung submits that the discount of 45% is also applicable to the present case.

79. In my judgment, the degenerative condition of the plaintiff’s back is also quite severe.  The damages for pain, suffering and loss of amenities should be reduced by 45% to $55,000.

Pre-trial loss of earnings

80. The plaintiff took sick leave for about 1½ year, from 9 April 2001 to 18 December 2002.

81. Dr. Chiang, the plaintiff’s expert, did not comment on the plaintiff’s sick leave period.  He believed that, following the laminectomy decompression operation, the plaintiff could return to his pre-accident work, although he should avoid carrying heavy objects.  Dr. Chang, the doctor instructed by the defendant, opined that the sick leave period should be 6 months if the plaintiff did not undergo the operation and 9 to 12 months if he underwent the operation.

82. The defendant’s expert considered it unnecessary for the plaintiff to undergo the operation and opined that the sick leave period should be 6 months.

83. In my view, the plaintiff should undergo the operation.  Despite the pre-existing degenerative condition, the medical evidence does not show that even if there had not been any accident, the plaintiff would still have to undergo the operation.  Therefore, the plaintiff should be granted sick leave for 12 months, which translates to the following figure for pre-trial loss of earnings:

          $19,124 x 12 = $228,488

Future loss of earnings

84. The plaintiff alleges that he can only take up light jobs such as carpark caretaker, watchman or clerical assistant.  This kind of work generates an income of approximately $6,800.  He claims damages on the basis of the difference between the above figure and his pre-accident salary and asks for a multiplier of 12 in this respect.

85. The plaintiff resigned in August 2002 by way of early retirement and only after that did he visit Dr. Chiang and Dr. Cheng, but he had never mentioned that after he resumed working he was responsible for anti-touting work rather than directing traffic.  The reason that he gave for early retirement was that he had to move luggage, but that was not correct.

86. Dr. Chiang, the plaintiff’s expert, believed that, following the laminectomy decompression operation, the plaintiff could resume his pre-accident job but, with a reduced weight-carrying ability, he should avoid lifting heavy objects.  Dr. Chiang considered that the operation had a high probability of success and a slight chance of complications.

87. This being the case, the plaintiff has, by refusing to undergo the operation, failed to mitigate his loss.  Assuming that he underwent the operation during his 12-month sick leave period, there should be no additional pre-trial loss of earnings.

88. In any event, because of the pre-existing degeneration of his back and his corpulence, the plaintiff would have to switch to a lighter job 5½ years to 8½ years after the accident.  Therefore, even if there were any future loss of earnings, the multiplier should only be 3, which means that the damages under this head would be:

          ($19,124 – $6,800) x 3 = $36,972

Future loss of Mandatory Provident Fund

89. The plaintiff’s claim is confined to future loss of Mandatory Provident Fund.  As he suffers no future loss of earnings, no damages should be payable under this head.

Loss of earning capacity

90. The basis of the plaintiff’s claim under this head is 6 months’ wages for lighter work, i.e. $6,800.

91. Following the operation, the plaintiff could resume his pre-accident job, albeit with reduced efficiency, and he should avoid carrying heavy objects.

92. As I have not awarded any damages for future loss of earnings, damages under this head should be increased in order to compensate him for the disadvantage in the labour market in which his injuries would put him.

93. The basis of damages under this head should be 12 months’ wages.

94. However, the damages should be reduced by 45% because the plaintiff’s back was already suffering from degeneration prior to the accident.  The damages payable under this head should be:

                   $6,800 x 12 x 55% = $44,880

Special damages

95. The defendant does not dispute the plaintiff’s claims for $1,720 being medical expenses and $2,433 being travelling expenses.

96. The claim for cost of tonic food is $5,000 and the defendant only agrees to pay 50% thereof, i.e. $2,500.  I award only $2,500 as the plaintiff has exaggerated his injuries.

Summary of damages

97. If the plaintiff’s claim succeeded, I would award the following damages to him:

(1) Pain, suffering and loss of amenities	$55,000
(2) Pre-trial loss of earnings	$228,488
(3) Loss of earning capacity	$44,880
(4) Special damages	$6,653
Total	$335,021

Interest

98. From 30 April 2007 onwards the plaintiff was unrepresented, but he did not apply for legal aid until 2 April 2008, as a result of which the trial originally scheduled to take place on 5 May 2008 had to be adjourned.  Therefore, if judgment was given in his favour, pre-trial interest should be awarded only from the date of the writ of summons to 5 May 2008.

Costs

99. As the plaintiff’s claim is dismissed, I make an order nisi that the plaintiff shall pay the defendant’s costs in this action, to be taxed by a Master if not agreed.  Unless either party makes an application within 14 days, the order nisi shall become absolute.

Annex 1

Chan Chung Keung v Greenroll Ltd t/a Conrad Hong Kong HCPI 275/2005, heard before Deputy High Court Judge Carlson (date of judgment: 20 December 2005):  The plaintiff was aged 37 at the time of the accident.  He was employed as a waiter in a hotel.  He slipped and fell and sustained contusion to the soft tissues of the low back.  He felt pain in both legs, and there was restriction in raising straight legs.  There was walking tolerance of 60 minutes and sitting tolerance of 30 minutes.  Fast walking, prolonged sitting for over 20 [minutes] and lifting heavy objects would induce pain.  L4-5 disc of the lumbar vertebrae was shown to be suffering from slight degeneration.  The accident also caused the plaintiff a certain degree of depression.  The Judge held that the back pain was not a disabling condition and that the plaintiff could perform all daily activities.  No damages were awarded for future loss of earnings.  Damages for pain, suffering and loss of amenities were assessed at $180,000.

Lam Kei Fung v Incorporated Owners of Yue Tin Court DCPI 1237/2005, heard before District Judge Mimmie Chan (date of judgment: 2 April 2008):  The plaintiff was aged 60 at the time of the accident.  He was a carpark attendant.  He fell down a staircase on the 1^st floor, resulting in back contusion.  He was hospitalized for 1 month and subsequently he suffered from persistent back pain.  He made no claim for future loss of earnings.  There were pre-existing degenerative changes in his neck and back, but the Judge held that they had no bearing on his work, and she did not make any deduction in accordance with Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523.  Damages for pain, suffering and loss of amenities were assessed at $180,000.

Lam Wa Lai v Startlong Development Ltd t/a Lai Ying Hair Salon DCPI 624/2003, heard before District Judge Marlene Ng (date of judgment: 14 April 2005):  The plaintiff was a 31-years-old hairstylist at the time of the accident.  She tumbled down the staircase at the hair salon and sustained contusion and sprain injury to the soft tissues of her back.  She could not sit/walk for more than 20-30 minutes.  The low back pain radiated down her legs.  There were also symptoms such as weakness and numbness.  The injuries led to sleep disturbances and deterioration in memory and also impaired her ability to do housework and performance at work.  She suffered partial loss of future earnings.  Damages for pain, suffering and loss of amenities were assessed at $170,000.

Lee Yuk Lan v Royaltelle International Ltd t/a The Royal Garden HCPI 187/1995, heard before Beeson J (date of judgment: 5 August 1999):  The plaintiff was aged 26 at the date of the accident.  She was a hotel trainee.  She slipped in the course of work and suffered a sprained back.  She had low back pain after walking for 2 to 3 hours, or standing for 1 hour, or climbing up 10 steps of a staircase, or carrying objects weighing 5 lbs, or when the weather changed.  She had nausea when the pain intensified.  The Judge held that the injuries fell far short of the “serious injury” category.  Damages for pain, suffering and loss of amenities were assessed at $150,000.

Ahmed Masood v Chung Kau Engineering Co Ltd DCPI 517/2003, heard before District Judge Marlene Ng (date of judgment: 28 January 2005):  The plaintiff was 57 years old at the time of the accident.  He slipped and fell when he was working at a construction site and sustained back contusion or sprained back.  He felt pain after walking for longer than 20 minutes.  He suffered weakness and numbness in his right leg.  He had stiffness in his right leg and attacks of pain lasting 30 minutes over the right leg every 2 to 4 days.  He could not remain in a squatting or bending position for a long time.  His ability to carry heavy objects was also impaired.  He suffered partial loss of future earnings.  Damages for pain, suffering and loss of amenities were assessed at $130,000.

Tam Yuen Hoi v Chan Muk Sing (陳牧成) and Ors HCPI 983/2001, heard before Deputy High Court Judge To (date of judgment: 1 August 2003):  The plaintiff was a carpenter, aged 36 at the time of the accident.  He fell down a staircase when he was moving a table.  He alleged that he felt pain at the L3/L4 region of the lumbar vertebrae, that he could not walk for more than 10-15 minutes, and that there was weakness and stiffness in his low back and left leg.  However, the allegations were not supported by medical evidence.  The Judge held that the plaintiff had exaggerated his injuries and that his injuries fell short of the “serious injury” category.  Damages for pain, suffering and loss of amenities were assessed at $50,000.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.