TSOI KWONG MING v. GREEN VALLEY LANDFILL LTD.

HCPI 407/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 407 OF 1997

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J U D G M E N T

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1. On 18th August 1995 the Plaintiff sustained an injury at work when the vehicle in which he was travelling hit a pot hole and he, and another worker, were thrown from the back of it to the ground. He was at the time employed by the Defendant at its site at Tseung Kwan O as a labourer and was 36 years old.

Liability

2. I am told by Mr. Yau for the Defendant that liability is no longer in issue save as to the question of contributory negligence, which I will deal with first.

3. The Plaintiff at the time worked at the Defendant's landfill site and was on a shift which worked from 4 p.m. to 1 a.m. At 4 p.m. transport would be arranged to take the workers out to their places of work on the site. This was usually, for the night shift, an open backed pickup truck, with seats in the cab for about 6 persons including the driver, who was a European called John Hamilton. Any workers over that number were expected to travel in the open back where there was no seating, although there were low platforms on either side over the wheel arch. The Plaintiff explained that he rarely travelled in the cab as this was principally for the more senior workers, operators and drivers, and the foreman had made an order that all the other workers should travel in the back unless there was room inside.

4. On the day in question the Plaintiff was one of the last to get to the truck, so not only was the cab full, but the back had already several other workers in it occupying the side positions over the wheel arches, leaving the Plaintiff and another worker, Mr. Cheung Chun Kit, to perch on the edge of the sides. The safest place there he thought was the rear corner where he could hold on to the side and the back edge with both hands. In addition to the passengers in the back of the truck there were also tools, tyres, a number of similar items, and on top of them an aluminium ladder running fore and aft which was not tied down. The Plaintiff said that there was just enough room to put down his feet.

5. Mr. Yau has conceded that this was an unsafe method of transport that the Plaintiff was expected to take, and also that the driver was in the habit of driving fast, as he probably was that day, in view of the fact that the force of the truck hitting the pot hole was sufficient to throw two of the workers, the Plaintiff and Mr. Cheung, out of the truck. However, he submits that the Plaintiff should, when an opportunity presented itself, have moved to a safer position. He initially approached the matter on the basis that the Plaintiff should not have sat where he did at all, but it is apparent on the evidence, as I believe he appreciated, that there was no other place available in the truck, and an ordinary labourer was not in a position to demand alternative transport.

6. The only opportunity to move to a safer place in the back of the truck came when the driver stopped it at other places in the site, before reaching where the Plaintiff worked, to let other workers disembark at their place of work. He says he should then, when places at the side of the truck, over the wheel arches, became vacant, have moved his position.

7. I have to say that, on the evidence before me from the Plaintiff and Mr. Cheung, this was not a realistic option. The truck was being driven fast and when it was stopped to allow workers to alight it would pause only for a matter of seconds before speeding off again. Bearing in mind that to move in the back of the truck would mean trying to attract the attention of the driver, whose only concern was to see that those who wished to had got off, to delay setting off again, and then to clamber over the tools and other items, including the ladder, in the back. There would, in my view, be a greater danger for the Plaintiff in such a course of action, than doing what he did, which was to hold on as best he could for the comparatively short time required to reach his place of work.

8. The employers here clearly not only condoned, but required, a very unsafe system of travel, without providing an alternative, and I am unable to find anything that the Plaintiff did or failed to do amounted to any degree of negligence on his part.

Quantum

9. The Plaintiff suffered injuries to his back and his head. The blow to his head caused comparatively mild damage, but that to his back resulted in bulging of the disc at L4/5 and has left him with continuing lower back pain. All the parties' doctors are agreed that as a result of this, he can no longer cope with the strenuous work of a labourer, but is only suitable for lighter work such as watchman, car park attendant, cleaning worker or messenger. A further problem as far as the Plaintiff is concerned is that he did not continue his education beyond P1 and is therefore effectively illiterate.

10. A further unfortunate consequence of the accident and his injuries, and his subsequent inability to secure employment, was the development of psychiatric problems resulting in depression. This progressed to such an extent that he suffered a severe depressive episode when he lost control of himself, and he had to be admitted to Castle Peak Hospital on 30th May 1997 where he remained until 27th June 1997. His condition has since been controlled by medication and regular psychiatric follow up treatment. This will have to continue for some two or three years.

11. He remained unemployed until June 1998, when he secured employment as a watchman with a company called Uniformity Security Co. Ltd. He had few difficulties with this job except when he was asked to take down the registration numbers of illegally parked vehicles. His supervisor spent some time teaching him how to do it, but he said he still made mistakes, and took much longer than others. He also was self-conscious of the way he walked because of his back, which was noticed by his supervisor, and he had to take painkillers which made him sleepy and he had to have a nap, which again caused comment from the supervisor. However, on the whole his supervisor seems to have been very kind to him, and it does not appear that his job was seriously in danger. It was his own perception of his ability, and not wishing to cause trouble for the supervisor, which led to him, first taking 20 days leave, then resigning of his own accord on 24th October 1998. The company kindly left open the opportunity for him to rejoin if he wished, which he did in May 1999, but again resigned of his own accord at the end of that month, although he said he was advised by the supervisor to leave. He has not worked since.

Pain, suffering and loss of amenities

12. This had been agreed between the parties at $560000.

Pre-trial loss of earnings.

13. The Plaintiff described the difficulty he had in applying for jobs since the accident, and particularly since his psychiatric treatment. He seeks employment through newspaper advertisements, but has to fill in application forms, for which he presumably seeks assistance, in which he is asked about his medical history. He then considers that he has a choice, either to tell the truth about his back problems and his psychiatric treatment, which he feels will count against him, or, as has happened so far, to conceal the truth.

14. Mr. Yau concedes that it was reasonable for the Plaintiff to remain unemployed until 3rd June 1998, when he started with the security company, and to take 20 days leave in October 1998, but says that he could and should have been able to work after that.

15. I agree with that. Aware as I am of the difficulties he faces in the labour market, which can be reflected in an award for loss of earning capacity, he is in my view capable of obtaining and keeping employment similar to that he had in 1998, possibly even with the same company who have already shown considerable kindness and tolerance towards him. He is therefore entitled to an award for full loss of earnings from the date of the accident to 3rd June 1998, and a further 20 days from 4th to 24th October 1998.

16. The Plaintiff's average earnings with the Defendant at the date of the accident have been agreed at $12000 per month, and the average earnings now at $14000, giving a median of $13000 per month. His total loss of earnings is accordingly $444166.00 ($13000 x 33.5 months + $13000 x 2/3 month).

17. When the Plaintiff left his employment a year ago the average monthly salary for a man in his position was $5861.20, which I will round down to $5861. I have no evidence as to what the salary is now, but I have to assume that it is similar. His loss since then has accordingly been $7139.00 per month i.e. $13000 - $5861. For the remainder of the pre-trial period not accounted for in the period of total loss of earnings, namely 15.5 months he is accordingly entitled to $110654.50 making a total for the pre-trial period of $554820.50.

Future loss of earnings

18. On the above figures it is clear that the continuing loss of earnings is $8139.00 per month, being $14000 - $5861. The only question is the multiplier to be used.

19. It has been urged upon me by Mr. Yau that the medical evidence here shows that the Plaintiff was suffering a pre-existing degeneration of the spine which would have caused him to cease work as a labourer doing heavy manual work within the next few years, and the multiplier should accordingly be reduced from that which might be awarded to a healthy man working until age 65.

20. The approach in such cases, where the Court is satisfied on the evidence that there is a possibility of deterioration in a Plaintiff's condition, is set out in the decision of the Court of Appeal in Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523, where, although accepting the method used by the court below in reflecting the risk by a percentage reduction in damages, it was pointed out that the most accurate way of calculating future loss is by a reduced multiplier. This is the course proposed by Mr. Yau. What then is the evidence?

21. The Plaintiff was examined in 1996 by Dr David Lee, who arranged for an X-ray and an MRI scan of his spine. The report on the MRI speaks of "minimally degenerative L3-4 and L4-5 intervertebral discs with minimal smooth bulge of L4-5 intervertebral disc without compressing on the thecal sac or nerve root." Dr Lee in his report says that the X-ray shows that "there is some generalised degenerative changes of the spine which is compatible with his age and his heavy labouring history as a construction worker."

22. Moving on to more recent reports, Dr. Lau Hoi Kuen, in his of December 1997, says that "X-rays of the lumbosacral spine reveal nothing abnormal." In evidence before me he said that he agreed with the view of Dr. Lee that the mild degenerative changes noted in the MRI and X-ray were not uncommon among middle-aged manual workers, but that these were not always symptomatic, or often only mildly so, enabling the worker to carry on without difficulty. Mild pain, he said, could anyway be controlled by conservative treatment by analgesics, anti-inflammatory drugs, muscle relaxants, regular rest, physiotherapy and posture training. He said most with mild symptoms would return to work.

23. He was shown the most recent X-ray produced by the Defendant's doctor, Dr. Tsoi Chi Wah, and said that he was not satisfied that it showed sclerosis, but agreed that it did show some osteophytes. He said that he would have advised a worker with these changes to avoid heavy labour if he could, as it would accelerate any degeneration. He went on to say, however, that it was by no means certain that any symptoms would appear, but it was possible, as it was also possible that none would. Both parties' doctors agreed that surgery would not help.

24. Dr. Tsoi conceded that at some levels of the spine the degeneration was mild, but said that that others were moderate and some mild to moderate. He accepted that none were severe, but said that there was a more than 50% chance of greater degeneration by the age of 45 if the Plaintiff had stayed at the same job. He said that about 30% of such workers would have similar degeneration of which he expected 50% to become symptomatic. In the case of the Plaintiff, he said that there was less than a 50% chance of his condition remaining asymptomatic, more than a 50% chance of back pain by the age of 45, and probably would not do heavy work beyond the age of 50.

25. Mr. Yau referred me to the 45% percentage reduction made in Chan Kam Hoi, and said that, as an appropriate multiplier for a man aged 40 would be 10, in this case it should be 6 to reflect the degeneration and the chance of the Plaintiff's full working life in heavy labour being curtailed.

26. I am not satisfied that this would reflect the justice of the situation here. While I accept on the evidence that there must be a chance of further degeneration affecting his working life, there is also a possibility that his condition would have remained asymptomatic enabling him to continue for his normal working life. This case can easily be distinguished from Chan Kam Hoi, where the degeneration of the spine, on the report of his own doctor, was severe, and was certain to lead to further degeneration and him ceasing work, the only question being when. Here it is a question not just when, but if. While I am therefore prepared to make a reduction to reflect the possibilities here, I do not thing that it should be more than 20%.

27. For a manual worker of 40 years of age I consider an appropriate multiplier to be 12. A 20% reduction on that would be 9.6. Although it is unusual for a multiplier to be given in anything other than a round number, in the circumstances of this case I consider this appropriate.

28. The award for future loss of earnings is accordingly $937612.80 ($8139 x 12 x 9.6).

Loss of earning capacity

29. It is suggested by Mr. Yau that no award should be made under this head as the Plaintiff's possible inability to do heavy work after the age of 50 is already reflected in the multiplier. However, this ignores the fact that the back problem is only part of the story here. The Plaintiff's psychiatric condition is ongoing, and I accept what he says about the difficulty in applying for, and securing jobs, in the light of his medical history.

30. There is ample authority that an award for future loss of earnings does not preclude an award for loss of earning capacity, and I am satisfied that the Plaintiff may well encounter periods when he will have the greatest difficulty in securing any employment at all.

31. This disadvantage in the labour market must be reflected in an appropriate sum which I consider here to be the $180000 suggested by Mr. Wong for the Plaintiff.

Future medical expenses

32. The reports from psychiatrists for both parties agree that the Plaintiff will benefit from ongoing psychiatric treatment, and for a period which the Plaintiff's doctor puts at 3 years, and the Defendant's at "at least two more years". However, the Plaintiff's doctor's report was made in November 1997, and the Defendant's in February 1999. For the purposes of this case I propose to assume that he will need a further 2 years treatment from now. The Plaintiff's doctor, Dr. Chung See Yuen, puts the cost of that treatment at $30000 a year. I have no evidence that that is not a reasonable rate, although it seems high, and I will accordingly award $60000 in respect of this treatment.

33. Dr. Chung also deals with the probability of further major depressive episodes requiring treatment in a private hospital. He says that there may be two more attacks, requiring about 20 days in hospital each time, at a total cost of $320000.

34. Professor Peter Lee agrees in his report that, although the Plaintiff is in remission from his depressive illness, he remains vulnerable to relapsing back into a depressive illness under unduly taxing and/or prolonged stressful circumstances.

35. He does not go as far as to say that he is likely to experience a major depressive episode requiring hospital treatment, and I accept that, now that he is under constant treatment, the risk of such an attack is reduced.

36. However, he must be entitled to an award to reflect some risk, and I think that the best I can do to is to assess that at $180000, i.e. the cost of one stay in hospital for 20 days, giving a total under this head of $240000.00.

Other special damages

37. These have been agreed at $18000 for medical expenses incurred and $6000 for travelling expenses, making a total of $24000.00.

Summary

Pain, suffering and loss of amenities	$560000.00
Pre-trial loss of earnings	$554820.50
Future loss of earnings	$937612.80
Loss of earning capacity	$180000.00
Future medical expenses	$240000.00
Special damages	$24000.00
Total	$2496433.30

38. The Plaintiff will give credit for the sums of $386000.00 received by way of compensation under the Employees Compensation Ordinance, and $198135.00 advance payment from the Defendant.

39. There will be interest on general damages for pain, suffering and loss of amenities and loss of earning capacity at 2% from the date of writ, and on special damages at 5.6% from the date of accident, both to date.

40. As to the award for pre-trial loss of earnings, I agree with Mr. Yau that in the light of the ECC award and advance payment by the Defendant in January last year, it is inappropriate to order interest after that date as the greater part of it has already been received by the Plaintiff. On this award there will according be interest at 5.6% from the date of the accident to the end of January 1998, a period of 29.5 months.

41. There will be no interest on the awards for future loss.

42. There will also be an order nisi that the Defendant pays the Plaintiff 's costs to be taxed, and, if appropriate, the Plaintiff's own costs will be taxed in accordance with Legal Aid Regulations.