HO YING WAI v. KELISTON MARINE (FAR EAST) LTD. AND ANOTHER

HCPI 852/1999 and
853/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTIONS NOS. 852 AND 853 OF 1999
(CONSOLIDATED)

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J U D G M E N T

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1. This is a claim for damages by a commercial diver against his employers and a general medical practitioner in private practice, to whom he was referred by his employers for annual medical inspections. The essential events giving rise to the claim occurred in 1990, 1992 and 1996. Proceedings were commenced against the first Defendant (the employers) on 2 August 1999, by one set of proceedings, and against the second Defendant by separate proceedings on exactly the same date. Why there was not one set of proceedings against both Defendants remains unclear to me. The two actions were consolidated in late October 1999. The original estimate for the length of trial was 8 days. No revision of the estimate of the length of trial was given by the parties until the later part of the first stage of the hearing. The trial, in the event, occupied 21 days. Because of this the trial had to be spread out over eight months in three stages. The final written submission was received on 9 March of this year, hence the lateness of this judgement. It has had to await the end of a long criminal trial which had occupied my attention since 5 November 2001.

The first pneumothorax - October 1990

2. The Plaintiff had been diving commercially since approximately 1980. He is now 39 years of age. He started diving when aged about 16, recovering sea urchins for his father. Between 1980 and 1986 he worked for a number of diving contractors. At the age of 23 (approximately in 1985) he did no diving for a year whilst he worked for his father-in-law on a barge.

3. Whilst he was working for a variety of contractors over this five year period he did not go on any courses. He was not asked to produce any certificates. Training seems to have been incidental to experience, i.e. on the job. He has no documentation in relation to this period of employment. Whenever he changed employers he was not asked for details of his experience nor subjected to any testing, nor was he given any demonstration. As far as the hazards of the occupation were concerned he knew of lung-burst ("bao fai").

4. In 1986 he joined H.K. Divers but was not put through any tests before commencing work. He was asked about his experience, in particular the jobs he had carried out, but no questions concerning his health. He was not asked for any certificate.

5. Sometime in or about 1987/88, after working with that company for about one year he was sent on a course. However this was not finished perhaps because he was required to work on the H.K./Macau ferry pier.

6. Mr Liu Man Bun, of Hong Kong Divers Ltd gave evidence on behalf of the second Defendant (Dr Yan). He had also made a statement as a witness, his company having employed the Plaintiff between 1986 and 1990. An important omission from his statement is any consideration of the matter of medical examinations and certificates of fitness to dive.

7. In his oral evidence however he was directed to this aspect. He said a medical examination is essential before a training course. No local doctors he said, had specialised knowledge. His company instructed Dr Y K Ho but the Plaintiff was not sent to him. Another, Dr Cheng, also carried out examinations, but, in short, Mr Liu was unable to find any record of any doctor having examined the Plaintiff. On the question of the Plaintiff's experience Mr Liu said the Plaintiff must have passed a course as a 3rd class diver otherwise he would not have been employed. Whether the Plaintiff actually completed this course is a moot point but of little consequence in the scheme of things. With or without certificates of competence he was regarded by Darren Taylor (and Keliston's major contractor) as a diver of experience and competence.

8. Mr Liu said log-books were issued to all divers but he knew some divers would do their best to avoid making entries. He employed divers who had no log-books.

9. I did not derive much assistance from Mr Liu's evidence save that it underlined a rather haphazard system at best, in relation to log-books and medical examinations and as far as the latter were concerned, no real regard for the duty of care.

10. In 1990 the Plaintiff joined Works of Diving Company Limited, in approximately September. He was involved in laying underwater cables and inspecting hydrofoil blades for fouling by rubbish and any damage. Using scuba tanks he also worked on American warships usually at a depth of 20/30 feet.

11. Other tasks included clearing the ducts of nullahs, of stone and mud. The depth at which he worked was 90/100 feet using a breathing hose. His diving experience was not inquired into although this may have been taken for granted since he was introduced through a work colleague at H.K. Divers who later set up his own diving business. No inquiry was made into his health.

12. It was whilst working off Shau Kei Wan on 18 October 1990 that he experienced some discomfort in his chest. He was on a barge and had not then reached his turn to go underwater. He finished duty and went home, had a meal and slept. The discomfort subsided and the next day he returned to work on standby. The pain returned and he decided to go to the Accident and Emergency Department of the Prince of Wales Hospital. He was X-rayed and told that he had a "bleb" defined as a small amount of air in his left lung. He said it was explained as a small crack in the membrane through which air had entered into the lung. He was told to take several days rest and that he would get better after the air was expelled. He said that he had understood, from the doctor at the Prince of Wales Hospital, that if he had a pneumothorax, he could still work as a diver because once the air had been released he would recover.

13. At this stage it is necessary to go to the hospital notes in order to see what can be derived from them. The History and Clinical findings clearly record a diagnosis of left pneumothorax. The notes confirm the complaint of sudden onset of left sided chest pain two days earlier after working under water. Pain was increased on deep inspiration. He had no history of upper respiratory infection or of any major illness. He was recorded as a chronic smoker (over 10 years) using half a packet daily.

14. He was admitted on 19 October and discharged on 22 October. The pneumothorax was described in the discharge note (as it had been on admission), as a small one on X-ray viewing. No treatment is stated on the discharge form but under "further management" there is an entry indicating (by a 'tick') that follow-up was advised and against the item 'clinic' is written "general med? 2 x 3/52". This suggests general medical clinic review after 3 weeks followed by another after a further 3 weeks. It is confirmed by a slip to the Li Ka Shing Clinic. There is no recommendation as to his employment. Of passing note is a reference to his weight being 55.6 kilograms. He said he attended for follow-up but there is no record from the Li Ka Shing clinic.

15. A letter of 6 March 2001 from the Labour Department confirms an "injury at work" suffered by the Plaintiff with 14 days sick leave as a consequence. He was assessed as having suffered 2% permanent loss of earning capacity, receiving compensation of $13,433.

16. The Plaintiff said that during the follow-up a doctor told him that he had "hei hung" (pneumothorax), that he would recover and that nothing was said to him to the effect that he must not go diving again. He knew of "bao fai" or lung burst and that that would put an end to diving as an occupation.

17. The fact that a 14-day sick leave period was assessed with only 2 per cent loss of earning capacity suggests that the Labour Department had no understanding or information to the effect that his diving career should be at an end. His employers had no such understanding either because he was back at work after the sick leave and stayed in their employment until 30 November 1990 (according to the employers' Inland Revenue Return) or sometime in December 1990 (according to the Plaintiff.) He said he continued to work for them on a casual basis during the early part of 1991.

18. I accept his evidence that he did not realise that the pneumothorax he suffered in October 1990 was a bar to his diving and that the full effect and consequences were not explained to him. In view of the hospital's lack of instruction, the Labour Department's ignorance and that of his employers, this is not at all surprising.

Employment with Keliston Marine

19. The Plaintiff joined Keliston Marine, the first Defendant, as a commercial diver at the latest in January 1992. He had no log book and no medical certificate of his fitness to dive. He was not asked by Keliston to provide either. That is common ground on the evidence. A colleague Chan Fo-Yan asked him to work for Keliston. There is some uncertainty as to whether he started work on a casual basis or on a permanent basis. There is a reference in his evidence to a permanent casual basis whatever that may mean, but he may have carried out work in 1991 for Keliston on a casual basis. Documents dealing with the commencement of the Plaintiff's employment are singularly absent. I accept the Plaintiff's evidence that he had worked for Keliston casually in mid to late 1991 and that his employment became more consistent in his work for them from January 1992.

20. Joining Keliston at about the same time in 1992 was Darren Taylor now a director of Keliston. It is of some significance that before being able to join Keliston in Hong Kong he had to fax his diver's certificate with his medical certificate to the company here. In the United Kingdom he had H.S.E. certificates which were valid for one year. After arriving in H.K., and when his existing medical certificate was about to expire, he was referred by Chris Jackson, who had established Keliston in the Far East, to the second Defendant, Dr Yan for his medical examination. Mr Taylor made it clear that he had to have a medical certificate otherwise he could not work as a professional diver.

21. There existed in Hong Kong in 1992 a Code of Practice for Diving. It had existed since August 1986 and I have been provided with a copy published in October 1988.

22. The introduction states the obvious to a layman and what must have been understood since Keliston's inception, both in the United Kingdom as well as in Hong Kong.

"Diving is a hazardous occupation and safety requires that the diver should be trained and fit ..... The aim of this code is to provide guidance on the principle of safe diving practice for the protection of the health of persons employed to work under water."

One of the organisations consulted during the preparation of the Code of Practice was Hong Kong Divers Limited for whom the Plaintiff worked between 1986 and 1990. There is incidentally no evidence that Keliston ever obtained this information from the Plaintiff so as to check on his employment record, experience or level of skill, or even asked for it.

23. The employer's responsibilities under the Code are set out at page 7. Those particularly relevant to the circumstances of this case are (numbering as in the Code):

"2. The employer (diving contractor) has the ultimate responsibility for ensuring the safety of his employees and should take all necessary steps to achieve safe diving practices.

8. He should appoint a doctor with special experience in underwater medicine to provide medical cover for diving and carry out the examination required by divers. He should arrange for this doctor to be on call when diving operations involve regular decompression or other activity with high risk of illness or injury."

This is a very wide-ranging responsibility which underlines the need for the doctor's special experience in providing "medical cover" and being "on call". A doctor without such special experience would not be in a position to meet these requirements. Accordingly the duty of appointing such a doctor is clear enough and requires steps to be taken to ensure that he meets that required level of expertise.

"9. He should maintain a diver's fitness register with details of the dates and results of medical examinations including X-rays."

This is clear and illustrates the high duty of care imposed upon an employer in respect of it's employees but is no more than reasonably to be expected in a hazardous industry.

24. Several years later the word 'preferably' was introduced in the Code in front of 'special experience of under water medicine' and it has been argued that this reflects difficulty in the earlier years in obtaining the services of such doctors. I cannot see how this avails either Defendant. Keliston have produced no evidence of such difficulty. They had no contact with the Department of Labour. Dr Yan claimed what he did not possess and made no effort to acquaint himself with essential requirements. Both these matters I consider in more detail later.

25. There are also responsibilities imposed upon the employed divers themselves. I will examine the relevant ones when I come to consider the part played by the Plaintiff himself in the events over 1992 to 1996 but at this stage it is pertinent to set out one in particular since it is inextricably linked with the responsibilities of the employer.

"25. A diver should maintain a personal log book (diver's log book) in which he should enter his name with his signature and a passport type photograph of himself ...... he should sign the daily entry and have it countersigned by the supervisor.

26. Another provision imposed a reciprocal duty on employee and employer.

33. Before entering the water the diver should be in possession of a certificate of fitness issued within the preceding 12 months by a doctor with experience in underwater medicine. The certificate should contain the details specified in Appendix IV and should be entered in the diver's log book. A new certificate of fitness should be obtained if the diver is sick for a period of 14 days or over."

This clearly indicates that a diver joining a diving contractor must either have a valid certificate of fitness to dive issued by a doctor with experience in underwater medicine, or he must be sent for the necessary examination and obtain a certificate before he enters the water.

27. The required contents of the certificate (Appendix IV) include the date and result of the chest X-ray (carried out annually), the date and result of major joint X-ray (carried out annually) and any limitation in the diving or compression for which the person is considered fit. I shall have cause to return to these aspects when I consider the case in relation to the second Defendant, Dr Yan.

28. If any employer in the face of this Code of Practice ignores the provisions which I have specifically set out then in my view that is patent negligence and breach of duty of care. True it is that there is no statutory force to the responsibilities set out but they are so self-evidently the requirements on the part of an employer who has to ensure the safety and health of an employee in the particular circumstances of the industry that the absence of statutory obligations and sanctions is irrelevant.

29. Almost contemporaneous with the Code of Practice in Hong Kong is a document from the United Kingdom's Health and Safety Executive's Medical Division revised in August 1987, entitled "The medical examination of divers". The recommendations in it are related to the requirements of the Diving Operations at Work Regulations 1981.

30. Paragraph 7 states:

"Approved doctors must keep abreast of developments in diving generally ....... as well as those in diving medicine."

That in my view states no more than the professional obligation of doctors holding themselves out as skilled practitioners in this field of occupational medicine. It underlines the employers' obligation to ensure that those doctors upon whom they rely to provide such medical examinations and certificates do have recognised skill and experience in this field.

31. Paragraph 8 states:

"All divers covered by the Regulations must be medically examined at intervals not exceeding 12 months. Approved doctors must enter either a medical certificate of fitness or a finding of unfitness in the diver's log book in the form prescribed in the Regulations. Where a log book has been lost reference should be made to the approved doctor who last examined the diver."

32. There are further commonsense provisions in paragraph 11:

"It is important that case notes should be retained indefinitely. Particular attention should be paid to the past diving and medical history."

33. A number of provisions puts the employer on notice of matters. Paragraph 11 also includes:

"If a diver (other than one attending for initial examination) cannot produce a log book bearing a record of the last examination and cannot say who conducted this, the approved doctor should on no account issue a certificate until the matter has been cleared with H.S.E.."

34. Whether Keliston in Hong Kong was wholly cognisant of the U.K. requirements, - when it ought to have been, given its U.K. link and the position of Chris Jackson, - matters not. The Hong Kong Code of Practice sets out the duties of the employing contractor towards its employees in no uncertain manner. A check should be made on an employee's previous employment and health record if he is unable to produce a log book and valid certificates. He should be sent for a medical examination by a doctor with experience of underwater medicine before he is allowed in the water. He had to be fully fit and certified as such before he would be allowed to drive. Failure to observe these prime requirements constituted breach of duty of care and negligence.

35. Mr Kin Kwok Li, a marine engineer, was called by the Plaintiff as an expert in diving training, safety and allied matters. He was experienced in commercial diving but had had no formal training having acquired his experience 'on the job'. Much of this evidence was not germane to the real issues in this case.

36. The issues were not competence to dive nor how many courses the Plaintiff had undergone. No party suggested that he was asked to do what he was not competent to do. Mr Li's expertise is probably on a more limited front such as standards for competence and diving safety at work. At times he strayed or was allowed to stray beyond the areas in which he had specific expertise. At other times he appeared to be less independent and objective than he ought to be.

37. In the final analysis I did not derive much assistance from his evidence in this case although I do not detract from his obvious motivation to improve diving safety and culture and his participation as an experienced diver who has observed the shortcoming of the commercial diving industry in efforts to extend a change of culture to South East Asia.

38. Mr Crawford Logan, a person with vast experience of the commercial diving world and the requirements in various parts of the world was called on behalf of the first Defendant as an expert witness. He has qualifications as a diver to lend practical experience and support to his evidence on the codes of practice and legislation in force and the developments that have taken place since the late 1970's.

39. He explained that it was not normal for a diver to have a pre-employment medical if he has a current i.e. unexpired medical certificate. He would need to have a medical examination before he starts his training. If there are no regulations in existence then, unless there is a valid certificate in existence, he should have a medical examination appropriate to the occupation. He regarded it as normal practice for the diver to arrange the examination although it is clear both from the British Code of Practice and that of Hong Kong that the obligation is fairly and squarely on the employer to ensure this. It may be up to the diver to make the actual appointment but that is simply a step in the execution of the process.

40. In some places outside major centres there may be difficulty in finding a doctor with experience in diving medicine. It is necessary to add here that in Hong Kong the obvious source of information in that regard is the Department of Labour. There is no evidence that Keliston did this. Had they done so it is probable that at least one of the names provided would have been Dr Raviswami. It is certain that Dr Yan's name would not have been on such a list. Mr Logan's evidence confirmed that for a diver to be employed without a certificate would in most places in the world (no doubt where a system had evolved to protect divers) constitute a breach of regulations and code of practice. He added that he would not expect an employer to ask the diver for a log-book. Locally, he said, there tends to be a "small pool (sic) of divers" who see no need to keep a log-book. There was then, something of an inconsistency in his evidence when he said "in Hong Kong, I would expect the employer to ask the diver if he had a log-book, but if he said 'no' then the employer would probably accept the position." Again he added something of importance - "I would think you could encourage divers to keep a log-book." Later he said something very surprising - "I would not expect an employer to endorse a diver's log-book to the effect that he had suffered a pneumothorax in the course of his employment."

41. At times Mr Logan seemed to abandon his detached approach. Consistent with the Codes of Practice of which he is clearly aware is the duty upon the employer or potential employer to insist upon compliance with the basic requirements set out. It may well be that there is a culture of self-neglect amongst divers in Hong Kong which leads them to take risks by not keeping a log-book and by not undergoing medical examinations. But the employers must not compound this situation by being equivocal or ambiguous in the way they treat divers seeking employment.

42. Mr Logan was unequivocal in his acknowledgement that the employer must ensure that the diver is medically fit and competent. In the rest of the world i.e. outside Hong Kong, it was a legal requirement that a diver should have a valid medical certificate. It is perhaps not necessary to state that, in Hong Kong, the absence of a legal requirement does not override the employer's duty of care to ensure that he has one. Mr Logan added force to this by asserting that for a diver to be taken on as an employee without a medical certificate of fitness would in most places in the world constitute a breach of regulations and of the Code of Practice. "If Keliston took him on without a valid medical certificate," he said, "I would be critical".

43. If a diver claiming experience and skill applies for employment and has no log-book or existing valid medical certificate the duty of care is not discharged simply by arranging for the applicant to have a medical examination. An inquiry into the level and nature of experience and past employment record, including medical record, is essential. The first Defendant did not do this with the Plaintiff. At best they relied upon the assessment of his diving colleague. Had Keliston carried out these basic inquiries they would have learnt, most probably from Works of Diving Company Ltd, the fact that he had been off sick for two weeks and awarded a 2% permanent disability assessment. The compensation was paid by the then employers. That would have put Keliston on immediate enquiry. Given the hazardous nature of the employment and the existing Code of Practice, this is no more than common prudence or care required.

44. Even if Keliston did not, through its directors, have the benefit of knowledge of the British "culture of safety" in respect of commercial divers, as set out in the Regulations and the Code of Practice in the United Kingdom, and I am satisfied that they did, there was sufficient express content in the Hong Kong Code of Practice to make it clear that they needed to instruct a doctor with experience of diving medicine. Keliston was set up by Jackson, the UK director or manager or partner, who must have known the position in the United Kingdom.

45. Any thought that it would or might be sufficient to instruct a doctor who lacked that special experience and skill was one devoid of logic and practical good sense, as well as being contrary to the Code of Practice, and negligent.

46. Darren Taylor said that he had to fax his diver's log and medical certificate to Keliston in Hong Kong before he arrived. He had medical certificates from Dr Yan from 1992 onwards. He made it clear that he had to have a medical certificate otherwise he could not work. He knew that there was a different policy for local divers. Keliston must have been aware of the contrasting situation which was capable of giving rise to foreseeable problems. The fact that a Code of Practice existed in Hong Kong indicated the foreseeable nature of problems.

47. Mr Taylor stated that all ex-patriate divers keep log-books (with medical certificates). There was no enforcement for local divers. The Code of Practice he conceded, was not followed. It first came to his attention in 1994/95. He agreed that he should have seen a copy of it earlier. He even went so far as to say that it should have been updated. There was no reason he said, why log-books should not have been issued by Keliston, and maintained under Keliston's supervision. He knew of no contact between Keliston and the Hong Kong Department of Labour to ascertain what doctors were approved (or recognised) as having experience or standing in this field, and could be used.

48. Mr Taylor's evidence is a clear indication that Keliston were exercising one standard of care for ex-patriate divers, and another, lower, standard of care for local divers. He kept his log-book up-to-date and it contained his medical history. That should have been done for all divers.

The referral to Dr Dominic Yan - September/October 1992

49. When he was asked to attend for this medical examination, the Plaintiff said it was the first medical examination that he had been asked to undergo. If that is so, and apart from Mr Bun's evidence there is no reason to dispute his evidence on this score, it is some reflection upon the general attitude towards the health and safety of divers by the diving contractors in Hong Kong in those days.

50. He recalls filling in a form similar to that at page 680 in the Trial Bundle (Vol. II). This is headed "Health Declaration". It is the type of form which Dr Yan said he required persons referred to him for a medical examination to complete as a preliminary step.

51. It is relevant to note at the outset that it is a very general form. No part of its content is specifically referable to the examination of a commercial diver, nor does it provide for the recording of a history of matters so referable.

52. No copy of this form was kept by Dr Yan. That in itself a surprising fact since this information is purportedly relied upon by him as the state of affairs disclosed by a referred employee. Dr Yan knew, or ought to have known, that divers were being referred to him for annual examinations for certificates of fitness. In my view any doctor, applying proper professional standards, would keep all records in relation to earlier examinations.

53. The Plaintiff was somewhat vague as to how he completed this form, or even the extent to which he completed it. The first question is a highly material one as far as his medical background is concerned:

"1. Have you ever been admitted to Hospital for treatment or observation?"

He should have answered that question with a "Yes" or a tick in the 'YES' box. If he had answered positively I am sure that Dr Yan would have followed it up with him to clarify the circumstances. There was no reason for him to answer it in the negative. In 1991 had been treated for a fracture of his 3rd finger of his right hand.

54. Question 4 asked if he had ever suffered from a number of specified illnesses or diseases. It included lung diseases. Whilst I remain unsure, despite offered translations of the Chinese characters, whether they covered pneumothorax or whatever the Plaintiff thought he had suffered in 1990, I am satisfied that there ought to have been an inquiry into whatever answer was given to this question. Dr Yan should have clarified this but he has no note. I am satisfied that the Plaintiff did not reveal his hospitalisation in 1990 or the reason for this. The effect of this is that Dr Yan considered he was examining a man with no declared adverse medical history. Was he entitled to proceed on this basis without further inquiry?

55. Dr Yan had no expertise or previous experience in diving medicine, yet he must have realised that he was being asked to certify as fit for diving men who required a specific medical approach. I am satisfied that he treated them as no different from the general run of employees referred to him for an examination for general fitness and yet he recorded nothing in relation to his medical history.

56. Dr Yan said that he checked through the answers on the declaration with the Plaintiff as he did with every examinee. There is nothing in his clinical record to support this. That means that if he did indeed do so, the declaration assumed an importance, and an historic importance at that, which indicated, unarguably in my view, that it should be kept as part of his records of the examinee. How else would a doctor be able to make effective comparisons year by year? And how would he compensate for the fact that he had no record of what the examinee stated?

57. The record of the examination on 21 September 1992 calls for close examination. There is a note of the Plaintiff's height and weight. Both are altered figures. His vision without glasses is stated. This may simply be information from his untrained assistants. His hearing is noted. Blood pressure is 140/85. At this stage it is necessary to go to Dr Yan's evidence concerning his notes, brief and not easily interpreted as they are.

58. It is stated in the record that Dr Yan found the Plaintiff unfit on 21 September 1992. I regret to say that I have some reservations as to when Dr Yan wrote "Unfit" in red. It is in rather heavy writing as if bearing some significance which of course it did for a diver. But Dr Yan did not notify Keliston that he was unfit to dive. I accept too that he did not tell the Plaintiff that he must not dive. Even Dr Yan accepted that he took no steps to inform them.

59. The reason for the unfitness is the recorded haemoglobin level. It is 12.6 on initial testing and 11.6 on a second test - a few days later. This low level required medical attention. The Plaintiff was asked to return on 29 September. He then had a barium meal, other tests, and was prescribed vitamins to counter the low haemoglobin level.

60. A further visit to Dr Yan was made on 2 October, little being recorded then. On 3 October the entries are transcribed as indicating the telephone number of Chris Jackson (of Keliston), a haemoglobin level of 14 (in fact the laboratory report shows 14.1 gms.) and the word "Fit" alongside, in normal writing, quite different from the style and emphasis of the word 'Unfit' on the 21 September. I doubt that "Unfit" was written in contemporaneously. It has the hallmark of an addition made much later. I have some serious doubts and concerns about the form and content of Dr Yan's notes on these occasions.

61. I now turn to the question of the chest X-rays, a highly important aspect of the medical examination for divers. Before I examine the system adopted by Dr Yan, it is necessary to go back again to his clinical notes.

62. There is no entry for 21 September 1992 recording that a chest X-ray was carried out. The first such entry is for 4 January 1994, the occasion of the second medical examination. That means that in the highly important, though sparse, notes for the various dated entries prior to the first certificate of fitness there is no entry whatsoever pertaining to the state of his chest. A chest X-ray is fundamental to such an examination and the omission of any reference to it is inexplicable.

63. A close study of these notes throws up another anomaly. A datestamp is used for the visits on 21 September 1992 and 2 October 1992. The entries for 29 September and 3 October 1992 are not datestamped. The dates are handwritten. The entries for the other annual examinations (not strictly on an annual basis as a good deal of flexibility seems to have existed) are date stamped - 4 January 1994, 20 March 1995 and 8 June 1996. The examinations were being carried out every fifteen months approximately. The only other entry for which there is a manuscript date does not relate to an 'annual' examination but to the fact that Dr Yan received a telephone call on 3 August 1999 from a journalist to the effect that the Plaintiff had commenced an action claiming damages for personal injuries following a rupture of his lung in 1996. I remain extremely suspicious about the entries with the handwritten dates. I am not prepared to find that such entries were in fact made on the purported dates.

64. The only other occasion on which a chest X-ray is recorded in these clinical notes is 20 March 1995. This itself is a curious state of affairs. Dr Yan's evidence was that a chest X-ray was carried out on each occasion and that he viewed and evaluated the X-ray. If he did then he was singularly lax in his records in relation to this vital aspect of the examination.

65. If one considers Dr Yan's clinical notes and records carefully, a number of factors emerge which cast doubt on his thoroughness in dealing with essential matters for a medical examination of a commercial diver.

66. There is nothing in the entries for 21 September which support his contention that he obtained any information from the examinee whether by way of a check on the health declaration form or any X-ray or simply by a doctor's normal inquiries. There is not even a note to record that the Plaintiff was a smoker.

67. His weight is recorded as 67 kgs. This is an altered figure, the original being written as 73 kgs. Fifteen months later, at his recorded examination the weight is recorded as 57.5 kgs this representing a significant weight loss of 9.5 kgs. Dr Yan confirms that he would so regard it but there is no record of any inquiry or comment on it. He suggested that the first entry was a transcription error. I find such a suggestion surprising. He obviously did not check back on his early records on 4 January 1994, sparse as they were.

68. The documents available show that he asked Advance X-ray Centre to carry out a number of scans and X-rays. One concerned the barium meal recorded on 29 September. There were also an ultra sonogram of the upper abdomen, an excretory urogram, and an X-ray of the skull, posterior, anterior and lateral views. These were all carried out on 29 September. All reported normal.

69. In the light of these reports from Advance it is even more surprising that they were not asked to carry out chest X-rays. It does suggest that Dr Yan did have a chest X-ray carried out by his staff on his own premises as the log indicates, otherwise there is a complete lack of logic on his part in this area of examination but I am far from accepting that he viewed that chest X-ray himself.

70. His own evidence raises a number of questions. His practice was to discard the Health Declaration forms after 6 months. Why he should do this when the initial practice is to file the forms with the patient's record I cannot understand. If he is right it means that someone went through every patient's record six months after the examination, extracted the form and discarded it. This is even more remarkable from the medical view point. No comparison can be made with any subsequent completed form - he says that for each examination a new form had to be completed - nor can any proper comparison be made with the patient's notes from the previous examination. There is no entry in the notes to support Dr Yan's assertion that he went through the answers on the form.

71. When he was asked why the forms were discarded after such a short time Dr Yan said that he would not normally see the patient again after the examination. How this squares with the fact that Chris Jackson of Keliston had in 1988 asked him to carry out annual examinations of divers is impossible to see. Between 1988 and 1992 he said he had examined about 30 divers.

72. Although Dr Yan is not a specialist radiologist, over the course of his training and career he had, he said, reviewed some 14,000 X-ray films as a conservative estimate. He regarded himself as competent in reading chest X-rays, posterior and anterior views only. If he encountered difficulty in interpretation he would send the X-ray(s) to specialist radiologists for a report and/or second opinion. He said that he had no reservations about reading the X-rays of the Plaintiff. Unfortunately not one is in existence for the examinations he conducted with the Plaintiff. They, like the Health Declaration forms, were disposed of after six months. Again his explanation for this practice was that hardly anyone came back again. This of course did not apply to the Plaintiff who attended him for four annual (approximately) examinations. In any event he was seeing a number of divers apart from those referred by Keliston, for whom annual examinations should be a pre-requisite to diving. He now keeps them for 3 years and he uses the services of a specialist radiologist to report.

73. He did not carry out spirometry tests. He did not regard them as a reliable or sensitive test for lung function. Perhaps the real reason is that given almost immediately afterwards:

"It did not justify the expense (of the equipment) at that stage of my career."

He did not carry out audiometry tests either, preferring to rely on subjective testing.

74. Dr Yan's capability in diving medicine and how he represented himself is of some concern and relevance. There was a discussion between himself and Chris Jackson when the latter approached him in 1988, about the nature of diving work and the requirements for the level of fitness. At that stage Dr Yan had, he said, a lot of experience of conducting medical examinations referable to employment, and, I assume, occupational medicine in general. He was aware that divers needed a sound respiratory system, that they had no problem with ears, and they were free from diabetic and renal disease. Lungs and heart needed to be in a good state. He felt he was competent having remembered something about diving from his university years.

75. His attention was not drawn to the Hong Kong Code of Practice by Jackson nor was he aware of any standard for the medical examination for divers in Hong Kong. However his experience of occupational medicine ought to have led him to contact the Department of Labour. He did not do so. He made no research. This was a singular and negligent failing.

76. Dr Yan said that he was aware, before 1992 that it was not the practice for local divers to keep log-books. In the early period he said he may have asked local divers for their log-books but that later on he ceased to bother. I find that a sub-standard approach in itself and well below the standard to be expected.

77. Had he obtained a copy of the Hong Kong Code of Practice he would have known that the Plaintiff ought to have been in possession of a certificate of fitness for the preceding 12 months, from a doctor with experience in underwater medicine. He made no inquiry of this Plaintiff. In fact there is nothing reliable to indicate that he made any inquiry of the Plaintiff as to his diving experience. It is equally apparent that had he obtained and considered the Code of Practice, he would have known that he should carry out a major joint X-ray as part of the medical examination. Furthermore he ought to have inquired as to the Plaintiff's diving history both from the employer as well as from the Plaintiff himself. Had he asked the basic question - how long have you been with Keliston? - he would have ascertained that he had been diving for a number of months without a valid medical certificate. He made an assumption that he was about to start diving with Keliston. He made it clear that in relation to the low haemoglobin level, he did not tell the Plaintiff that he was not fit to dive on any of the occasions, only that he had a problem. He assumed he would not dive. The question, he conceded, did not enter his consideration at that time. Even more surprising is his statement that he did not think that he ought to have told Keliston that he was not fit because of the haemoglobin level. Although Dr Yan was himself satisfied as to his own ability to conduct proper medical examinations of professional divers for the purpose of certificating them fit to dive, he was diffident enough to cross out the word "approved" in front of "doctor" on the certificates he signed in the log books of western divers examined by him. He accepted that Chris Jackson of Keliston would have been satisfied as to his capability in this field of medicine, although, as I have stated Jackson did not discharge the employer's duty of care by establishing by means of available criteria or sources that Dr Yan had such capability.

78. When he was in the practice of Anderson and Partners Dr Yan did no diving examinations. He had done no study in occupational medicine. He had no experience of diving medicine or examining divers until he set up on his own. When asked by Jackson if he would do the examinations he said that he "thought about it", "sized up the position" and what work he had done in relation to employment medical examinations, and decided that he was competent. He made no reference to any diving medicine materials. Not until 1996 did have recourse to any such reference materials. That is the limited basis on which he held himself as being a medical expert in this field, a relatively baseless claim of expertise that regrettably one has on occasions come to recognise in litigation in these Courts.

79. Dr Yan's nurse, Ms Cheung Siu Wa, gave evidence as to the procedure adopted in relation to persons referred to Dr Yan's Clinic and in particular the X-ray aspect. She had received instruction from Dr Yan on the operation of the machine. She would also test the patient's eyesight.

80. It was her job she said to collect the declaration form from the patient and check whether it had been completed. She was not a trained nurse. She had not in fact received any training in any aspects of nursing skills. Her training such as it was had been by Dr Yan. None of his assistants had received any formal training.

81. Some of Ms Cheung's evidence was concerned with the maintenance of the x-ray machine and the practice concerning the retention of X-rays. I do not think that the state of the machine assists in this case. In view of what I regard as a perfunctory examination by Dr Yan and a neglectful attitude to records - X-rays and Declaration forms - I find myself quite unable to conclude that the X-ray relating to this Plaintiff in 1992 was of adequate quality or satisfactorily considered. Although common sense would dictate that since an X-ray was taken - the log records that and nothing else - it would have been considered by someone (who should have been Dr Yan) I remain unconvinced that that did in fact happen. The complete absence of any reference to an X-ray with negative or positive findings speaks volumes as to the lack of professional expertise whether in relation to diving medicine or medicine generally.

82. Dr Lin's evidence lends support to my conclusions. He expressed his doubts as to whether Dr Yan should be practising any claimed radiological/radiographic experience. None of his staff had received appropriate training. I accept his evidence. I can place no reliance upon the level of efficiency and expertise in radiographic/ radiological procedure in his practice.

83. Professor Wong Tze Tian was constrained to concede that a general medical practitioner with no experience or knowledge of diving medicine should seek information on diving. That he regarded as a commonsense approach. It followed, and he expressed it as such, that a general medical practitioner with no such experience or knowledge who undertook the medical examination of a professional diver without equipping himself with available information and the current Code of Practice and guidance in relation to diving medicine and professional divers medical examinations was acting below the standard to be expected of the reasonably competent practitioner in that field. I regard that too as a commonsense approach though it has the added force of practising professional opinion. That applied in 1992 and at any time when such material was available.

The Second Pneumothorax - 1996

84. Before I turn to examine the circumstances which gave rise to this I propose to consider the hospital record of his admission on 5 August 1996. The Admission diagnosis was "Pneumothorax". X-ray findings showed a right-sided pneumothorax. It is of note that the Plaintiff told the examining doctor that he had a history of pneumothorax "four years ago", when no chest drain was inserted. He could not recall which side was affected.

85. I find the fact that the Plaintiff disclosed to the hospital in 1996 that four years earlier (it was in fact six years) he had suffered a pneumothorax lends support to the view that, had he been asked in 1992 whether he had ever suffered any pneumothorax, or similar incident, it is likely that he would have disclosed the 1990 incident. I have already said that I am satisfied that although he did not state to Dr Yan that he had suffered a pneumothorax in 1990 or reveal that he had been hospitalised for some chest condition in 1990, he did not deliberately conceal these matters. Had he been asked routine questions by Dr Yan, this would have emerged.

86. What brought about this 1996 incidence of pneumothorax? There has been much challenge of the Plaintiff's version of the events leading up to this development in particular as to the extent of the heavy work he said that he had to carry out. I have to remember that all the witnesses on this factual aspect are having to recall the events of about 5 years ago (from the time at which they gave their evidence).

87. The Plaintiff said he was diving on 4 August 1996, the day before. His work involved helping to lay a sewage pipe off Stonecutters Island, at a depth of about 60 - 80 feet for about 80 minutes. Communications with those on the surface was by means of the voice pipe. He was pulled to the surface at the end of the work.

88. On 5 August he did not dive. He took out all diving equipment some of which is clearly heavy. He had to check that the air tanks were full. He was stand-by diver that day. He said that he had to crank-start the diesel-engineered air compressor but this is disputed by Keliston's staff. In any event his period as standby diver was a short one and when the duty diver came up after a short-time, he was able to stand down and remove his equipment.

89. At about 10:30 am he felt a slight pain in his chest. He lay down in a cabin until 12 noon. There was no doctor on call arranged by his employers. By 3 pm the pain had not subsided and he was driven back to Tai Wai. From there he took a taxi to the Prince of Wales Hospital. He was an in-patient for over three weeks and underwent surgery on two occasions. He had a somewhat stormy passage. This was undoubtedly a serious incident.

90. It is not in my view necessary to consider the technical implications of the work that he carried out under water. He could not recall how far he had got with the job but he recalls trying to fit bolts when he was called to ascend. He said that he was pulled up that day. It is disputed that he had anything to do with the diesel-engineered compressor and it is alleged that he has exaggerated the events of 4 and 5 August 1996. He may well have done so but I am not satisfied that he has done so deliberately. He may have transposed the effort to crankstart the compressor from an earlier occasion. Perhaps the routine of the events of those two days was not that different from any other two day period which involved diving on one day and being standby diver on the other.

91. The Defendants contend that this was a spontaneous pneumothorax in the sense that the Plaintiff was pre-disposed towards such a development and that it may have arisen in the ordinary course of events, unaffected by his occupation and the efforts and activities associated with it.

92. Professor Wong Tse Tian said that the causation of blebs was generally believed to be congenital. There is a link with smoking. If a pneumothorax was to be associated with diving it would occur soon after surfacing. Dr Lin however said that he could detect a bleb in the right chest on the X-ray of 5 August 1996. Of course since no X-ray of the June 1996 examination (the last by Dr Yan) exists it is not possible to say whether the bleb existed in June 1996.

93. Dr Ronson Li, who started to carry out medical examinations for Keliston after Dr Yan ceased to do so in 1996, stated that at least one bleb burst on 5 August. Repeated diving exposure can, he said, cause blebs to grow in size and he was of the opinion that the exertion of 5 August trigged the rupture of the bleb.

94. Dr C K Wong, said in his report for the second Defendant's solicitors in March 2001 (shortly before the first phase of this trial):

"I am sure Mr Ho has blebs in his lungs since 1990 when he had the first rupture of one of the blebs. These blebs are shown in his lungs beyond any doubt on the C T Scan of 1999."

This corresponds to the findings on Dr Lin's C T Scan report of 11 August 1999. If follows that a C T Scan in 1992 (or in any other year before 1999) would probably have revealed the existence of the blebs. Dr Wong however concludes that there was no reason for Dr Yan to use this means in the circumstances then known to him, but of course Dr Wong's conclusion is based upon a complete acceptance of Dr Yan's evidence. Dr Yan's shortcomings in respect of his procedure for chest X-rays and his failure - as I determine it to be - to seek an expert radiologist's services, underline his negligence.

95. "Imaging of Diseases of the Chest" by Armstrong et al, at Chapter 14 (p.674) says:

"Primary spontaneous pneumothorax is nearly always the result of a rupture of an apical pleural bleb. Blebs are said to be detectable on chest radiographs in 15% of cases in the presence of pneumothorax; they are seen in 54% of patients at thoracoscopy and in 92% at thoracotomy. They are rarely seen however, on the interval chest radiography.

The formation and/or rupture of blebs is probably encouraged by the greater mechanical stresses that occur at the lung apex ...... the transpulmonary pressure, which is the force distending the lungs, is therefore greater at the apex, than at the base ...... other predisposing factors are smoking ...... There is some difference of opinion regarding the importance of stressful activity in precipitating the actual event. Some authors suggest that this happens only occasionally but in other series, about a quarter of patients were engaged in stressful activity, coughing, or sneezing."

96. I have throughout used the term bleb because it is the one most commonly used in evidence and literature. As the glossary of HRCT terms indicates:

"The distinction between bleb and bulla is of little practical significance and is seldom justified. Bulla is preferred."

97. Professor Wong too, it is apparent, had no problem in linking pneumothorax with diving activity:

"Pneumothorax is a well-known risk of diving because the air trapped inside a small airway that is obstructed ...... in the lung will rapidly expand when the diver ascends from the high pressure environment to the surface. This will increase the likelihood of rupture, especially if the lung is weakened with blebs or bullae and hence will result in pneumothorax"

98. He however thought the lapse of time between the ascent and the onset of pain in 1996 was too long for the pneumothorax to be attributed to diving. He did not however apply his mind to the question of the stressful activity of the following day, and the question of a chest already weakened by a previous pneumothorax, the possibility of chronic blebs, a further weakening by diving on 4 August following by some stressful activity the following day - "The straw that broke the camel's back."

99. I have also derived support from Dr Sam Nariman's report on the Plaintiff obtained by the solicitors for the first Defendant in June 1999:

"There is an undoubted association between the occurrence of spontaneous pneumothorax and heavy exercise like lifting a heavy weight. This is an observed fact but it is difficult to obtain documented proof about this statement. However most experienced chest physicians will have had the experience of patients developing a pneumothorax during or immediately after lifting a heavy weight."

Earlier he had stated what also has direct relevance to this case, when he was considering the 1990 incident of pneumothorax:

"Variations in ambient atmospheric pressure are often associated with the occurrence of spontaneous pneumothorax. Thus divers who subject themselves to increased ambient pressure ...... are prone to get pneumothorax."

100. I found Dr Ronson Li a good and fair witness despite his inexperience as far as the giving of evidence is concerned. He also misunderstood the territorial extent of United Kingdom legislation and I have borne this in mind in evaluating his evidence. Without X-rays for the examinations between 1992 and 1996 all the medical experts are at a disadvantage. It may well be that those X-rays if seen by radiologists would have been read as indicating evidence of what was unarguably seen in 1996. Alternatively, quality X-rays would have been taken by radiologists who would then have provided a careful report geared to the needs of an examination to determine whether or not the Plaintiff was fit. They may even have decided a C T Scan was appropriate.

101. I have concluded on all the evidence that on the balance of probabilities the Plaintiff's pneumothorax was brought about by a combination of diving exertion and the stressful activity when he was 'on standby' the following day. By stressful I simply mean the physical stress exerted by the activity as described in the passage from Chapter 14 of Armstrong's "Imaging of Diseases of the Chest," to which I referred earlier.

Conclusions

The Employers and their duty of care

102. Keliston employed the Plaintiff without subjecting him to any tests as to his practical experience and skill relying instead on a word of mouth reference from his colleague. More importantly he was not asked for his log book or a medical certificate. He was sent to work as a diver without a medical examination.

103. There is clear evidence that local divers do not always, or often, have log books. In these circumstances, an employer is taking on a diver 'blind' as to his experience and state of health. By so doing they put themselves at risk but, more importantly put the employee at risk. Keliston must have known the standards to be expected of them in the United Kingdom where concern for the employee is perhaps significantly greater than in Hong Kong and legislation exists and is enforced to that end. But the Hong Kong Code of Practice in force in 1992 (from 1986) was sufficiently clear in indicating what an employer's obligations were considered to be even though legislative enforcement was notably lacking.

104. Keliston could have obtained information on the Plaintiff from his previous employers which would amongst other matters have revealed his period of sickness and the cause of it in 1990. They would then have known that he should not dive. There is no evidence at all of any interview by Jackson (or anyone else at Keliston) dealing with the Plaintiff's experience or health record. In this commercial diving world it is highly material for an employer to be satisfied that a diver is physically fit if they do not immediately arrange for a thorough medical examination by a doctor with special experience in diving medicine. The word 'special' is probably superfluous as experience in diving medicine denotes a degree of expertise in that special field.

105. The employer referred him to Dr Yan. Keliston took no steps to satisfy themselves that Dr Yan had special experience in that field. He did not have such experience, special or otherwise. Keliston, through their counsel Mr Peter Duncan, to whom I am indebted for his succinct submissions at the outset of and conclusion to this case, acknowledges that it is vicariously liable for any negligence established against Dr Yan.

106. In my judgment Keliston were in breach of their duty of care in the respects set out more particularly in the earlier part of my judgment.

107. There is some indication that Keliston allowed Dr Yan to carry out diving examinations after 1996. If this is the case it would constitute serious neglect by them. A letter of 18 October 1996 to Dr Raviswami from Keliston refers to an earlier conversation with Dr Raviswami who had pointed out that the doctor who had passed the Plaintiff fit to dive " has no idea of diving medicine." That letter and a later one of 31 October clearly indicated that Keliston would have to dispense with the Plaintiff's services as there was no alternative employment "at that stage". Although later on it appears that the Plaintiff was given some non-diving work, that was short-lived, and while he may have left as a result of some advice, it is clear that Keliston was unlikely to be able to offer any long-term work which, given his condition, he would be able to carry out.

Dr Yan and the medical examinations

108. Dr Yan's notes and the absence, through a policy of disposal, of important and material records, illustrate a somewhat perfunctory approach to medical examinations, particularly the first one in 1992, of the Plaintiff. It is important to bear in mind that the purpose of the examination was to determine fitness to pursue an occupation which by its very nature carries with it risk to life and limb. Hence the Codes of Practice and, where in force, legislation for the protection of the employee, and, albeit in a different context, the employer.

109. The absence of questioning of the examinee as to his experience and past medical history was a serious deficiency. The Health Declaration form is not a substitute for proper history taking, particularly when the form is disposed of so soon after the examination. Not to record any note of the chest X-ray is an omission aggravated by the disposal of the X-rays films. On that first examination I am not satisfied that Dr Yan looked at the X-rays himself. I am equally not satisfied that they were of a quality which was essential for this type of examination - or for any other type of examination for that matter.

110. I do not accept that he went through the Health Declaration form with the Plaintiff. Although I accept that the Plaintiff did not reveal his hospitalisation in 1990 and did not state that he had suffered a pneumothorax, I am satisfied that had Dr Yan conducted his examination properly and made the appropriate inquiries he would have ascertained this fact. The very fact that the Plaintiff came to him without an existing medical certificate should have put Dr Yan on inquiry. Here was a 30 year old commercial diver. His past history, medically and in terms of experience and employment, were highly relevant. Without a clear history he should not have been certified as fit. The absence of a log book and/or a medical certificate should have put him on inquiry. Any reasonably competent practitioner practising in that field of medicine would not have certified him.

111. The most extreme example of what I regard as a somewhat amateurish approach to what should have been a serious and careful professional appraisal of a commercial diver was the failure to tell the employer and the Plaintiff that he was not to dive when his haemoglobin level was too low, on 29 September 2002. Written in red ink, boldly, is the word "UNFIT". If it had the importance implied by the form in which it was written why was it not communicated unequivocally to both the interested parties? I have concluded that this was written sometime well after the event, as an afterthought, when for some reason Dr Yan had cause to go through his notes. Dr Yan was not questioned about this although the comments I have made remain valid as to this curiosity. The case against him in negligence did not of course depend upon this aspect. I have highlighted a large number of areas in which I find him to have been negligent.

112. I do not consider his failure to refer the Plaintiff for a CT Scan to have been negligent in itself but he ought to have had the chest X-rays carried out by a radiologist and reported upon, the radiologist then being in a position to decide upon a CT Scan if he thought it necessary. On the balance of probabilities such a scan would have revealed blebs and/or the indication of a previous pneumothorax. A properly taken X-ray by a radiologist may or may not have done so and I am unable to make a positive finding in this regard. Spirometry tests would not have been diagnostic but their omission is part of the picture of a wholly inadequate examination process, as is the omission to do a full X-ray of the joints.

113. For these reasons and those set out earlier I find Dr Yan was negligent. He should not have held himself out expressly and/for by implication, to be that which he was demonstrably not - a doctor with experience in underwater medicine. I make these findings in the context of the evidence concerning the period 1992 - 1996. He has, I understand from his evidence, since acquainted himself to a greater extent with requirements of a doctor who carries out such examinations.

114. Mr Raymond Leung in his extremely comprehensive and well-argued submissions contends that Dr Yan owed no duty of care to the Plaintiff only to Keliston who instructed him and in effect retained him for such services. He relies upon the English Court of Appeal decision in Kapfunde v. Abbey National Plc 1998 BMLR 176 and the House of Lords decision in X (Minors) v. Bedfordshire CC (1995) 26 BMLR 15 (1995.2 A.C. 633).

115. The former decision related to the reference by a potential employer to a General Medical Practitioner of a confidential medical questionnaire completed by the applicant for employment for the purpose of determining whether the medical history disclosed, indicated that the applicant was likely to have a higher than average level of absence from work. In deciding that the General Practitioner owed no duty of care to the applicant the court identified these significant factors to be borne in mind:

(1) The lack of any doctor/patient relationship (the GP never having seen the applicant who was probably unaware of her existence.)

(2) The lack of any legal liability on the potential employer to exercise skill and care in the processing of the application for employment (outside anti-discrimination law).

(3) The claim was for economic loss only.

116. The case against Dr Yan can in my view be distinguished on the facts, and not simply by reason of the proximity of the Plaintiff to Dr Yan in the context of the medical examinations. Dr Yan was not simply providing information for Keliston, whether he was under a contract of service or contract for services. He was being asked to examine the Plaintiff to determine whether he was fit to pursue a hazardous occupation. It would in my view be anomalous to hold that the doctor owed a duty of care only to the employer by reason of the employer's retainer, when the implication of a certificate of fitness to dive was the doctor's assurance to the employee that he had been properly examined, and assessed by a purported expert in that field of occupational medicine, and his state of health and physical fitness was such that there was no impediment, on those bases, to his being employed in that capacity. In short, carrying out a hazardous occupation involved no risk to his well-being. The three significant factors identified by the Court in Kapfunde's case were established in this Plaintiff's favour:

(1) There was a doctor/patient relationship (Dr Yan's concern over the haemoglobin level and his procedure in relation to it was only one aspect of it)

(2) There was legal liability on the part of the employer, and the doctor, to exercise skill and care in processing the medical examination(s) and

(3) The claim was for damages for injury and not limited to economic loss.

117. The same sort of distinction can be drawn between the House of Lords decision in "X Minors" and Dr Yan's position. The analogy with the doctor instructed by an insurance company to examine an applicant for life assurance was drawn in that case as a correct one for the purposes of determining the limits upon the psychiatrists' duty of care. They did not come under any general duty of care to the children in advising the local authority. Millett L J (as he then was) said at page 189 (in Kapfunde):

"The effect of these cases is that the existence of the duty of care on the person who makes a negligent misstatement and the identity of the person to whom the duty is owed depends upon the circumstances in which the statement is made."

In the case concerning Dr Yan there was no confidential relationship between him and Keliston. As Keliston's employees indicated in practice it was usually up to the diver to arrange the medical examination. The doctor/patient relationship was clearly established. As the doctor well knew both employer and employee were cognisant of the purpose of the examination. They had an indivisible interest in its outcome. Both were owed the same high duty of care.

The 1990 incident - contributory negligence and causation

118. In my view the occurrence of the pneumothorax during a morning as stand-by diver following a day of diving, was not a simple coincidence. I do not find it necessary to decide one way or the other the dispute concerning the crank-starting of the compressor. All the other evidence concerning his activity, and I accept he carried out heavy work on the morning of the 5 August in the sense that he put on and off heavy equipment, and carried heavy items from time to time, together with the expert evidence which indicates that the pneumothorax can be linked with such work, satisfies me that it was occasioned by his work as a diver.

119. The fact that the Plaintiff did not dislose his hospitalisation and the pneumothorax was in my view undoubtedly negligent. I do not find it was a deliberate non-disclosure but due to some misunderstanding on his part. There remains a good deal of uncertainty about this questionnaire or Health Declaration. He certainly disclosed it to the hospital at the outset following his admission on the 5 August 1996. Had he been properly questioned by Dr Yan I am sure he would have made mention of it. I have already indicated that in the light of the information given to him in 1990 he did not regard that occurrence as a contra-indication to diving. I am not prepared to accept that he deliberately put his life at risk by withholding a material matter. It was not material to him at that time. Nonetheless the omission was a contributory factor even though I have held that both Keliston and Dr Yan would have found out the information had they properly discharged their duty of care.

120. I do not think that the fact that further examinations took place by Dr Yan without the Plaintiff correcting that omission increases his contributory negligence. The die was cast as far as all three parties are concerned and Dr Yan's subsequent examinations were hardly better than the initial one. The mere fact that a reference to chests X-ray is made in those of 1994 and 1995 (but not in 1996) does not indicate a more professional and competent approach to subsequent examinations. They were, in my view, no more informative and thorough than that in 1992.

121. Having regard to the diver's responsibilities as set out on the Code of Practice (1986) in paragraphs 19(b) and 25, attention must be given to the diving culture in Hong Kong at the material time.

122. The obligations are clear enough. A diver is required to have a valid certificate showing that he has been medically examined for diving fitness during the preceding 12 months. The Plaintiff said that he had never been medically examined. I accept this. Mr Liu Man Bun's evidence did not satisfy me to the contrary. The Code of Practice was unknown to the Plaintiff. Keliston did not, according to the evidence of Mr Vaughan, make it available before 1994. Though the Plaintiff was, on the face of it, in breach of these responsibilities, they were primarily those of the employer. In any event I am satisfied that it was not drawn to his attention at any time.

123. The maintenance of a personal log-book again, I am satisfied, was not drawn to his attention. Neither H K Divers nor Keliston informed him of this responsibility both being indifferent to its existence. Both allowed a local practice to persist to the continuing risk for the employer and employee. He said he had never kept one or been asked to keep one. It follows that neither of these matters under the Code constituted contributory negligence on the part of the Plaintiff.

124. In considering the degree of contributory negligence I have had regard to the decision of Morland J (English Queen's Bench Division of The High Court) in Hewison v. Meridan Shipping Services Pte Ltd (Lawtel) 30 November 2001.

125. In that case, on the limited public policy issue of whether a Plaintiff should be allowed to advance a claim for damages for loss of earnings and loss of congenial employment, the claimant concerned was employed as a seaman and crane-operator on a cable-laying vessel berthed in a French port. He was guiding a wire off a winch drum when he was struck in the face by a defective gangway. Liability for negligence was admitted.

126. The claimant was an epileptic. He had been on medication since 1980 which had controlled it. He worked as a seafarer throughout that time but his employer was unaware of his condition and that he was taking anti-convulsant drugs. Following the injuries sustained, he suffered two, possibly three 'grand mal' seizures. Two of them were after his return to work.

127. Throughout his seagoing career he underwent periodic medical examinations which involved being asked direct questions as to whether he suffered from or had a history of fits, seizures or epilepsy. He concealed his condition by denial. He never declared his medication.

128. At trial the claimant freely admitted his deliberate omissions. The potential implications for the safety of others had he suffered a seizure whilst at the controls of the crane are obvious. The judge rightly found that his actions and statements, carried out in order to keep his job at sea, constituted a criminal offence.

129. After considering a number of other decisions the judge held that the claimant was excluded from claiming loss of earnings, loss of a congenial sea-going career and of free board and lodging when on board ship. He prefaced his judgment with the following:

"The claimant's situation aboard ship is wholly different from that of someone who has some physical disability or medical condition which will not foreseeably endanger anyone at his place of work. The claimant would never have been employed as an able bodied seaman crane driver but for his criminal deceit."

130. Although I am not bound by such a decision it comes from a judge of considerable practical experience and wisdom. I have accordingly treated it as a proper backcloth against which to focus on this Plaintiff's omission.

131. Whilst he may not have constituted a danger to any other employee by virtue of his past injury, which could recur without much notice - there is no evidence of such a forseeably dangerous state of affairs - he would certainly not have been employed as a diver. But I have found that his omission was not a deliberately deceitful act. He did not, I am satisfied realise how life threatening his experience in 1990 was. No one, not even his then employers or the doctors explained that it was. The somewhat neglectful climate of employment in the diving industry allowed that event to become misted over and the ensuing negligence of Keliston and Dr Yan obscured it.

132. It is therefore a case for a percentage deduction from the Plaintiff's entitlement to damages, and not a situation in which his claim should be extinguished in its entirety.

133. I have decided that the Plaintiff should bear 30 percent responsibility for the fact that in 1992 he would not have been certified fit as a commercial diver had he revealed his hospitalisation and the reason for it. I have had some difficulty in deciding how the 70 per cent responsibility of the Keliston and Dr Yan should be divided between them. On the one hand Dr Yan held himself out as a doctor experienced and capable in this field and issued certificates of fitness which were worthless as such, but upon which the employer relied; on the other hand Keliston allowed the Plaintiff to dive for a period without any medical examination and without any responsible inquiry into his working and health background. I have concluded, that Dr Yan should bear the greater part of that responsibility. I think employers are entitled to rely to a substantial extent on professionals as a safeguard against their own shortcomings, and for their claimed expertise.

134. Accordingly the proportions should be 40% borne by Dr Yan and 30% by Keliston.

Damages

135. The position is that had the Defendants properly discharged their duty of care, the Plaintiff would have been certified unfit to dive in January 1992 (when he ought to have been medically examined). He would then have been able to do other work though it is probable that it would not have been as well remunerated, relatively speaking, at that of a commercial diver. There is therefore no loss between then and August 1996.

Pain, Suffering and Loss of Amenity

136. The pneumothorax which he suffered in August 1996 has left him substantially incapacitated although he is unlikely to suffer a recurrence of that problem on the right hand side of his chest in the light of the surgical treatment received. He is however still at risk of a pneumothorax recurrence on the left side if he were to be involved in heavy lifting or substantial exertion. He had three weeks or so of hospitalisation and surgery consequence upon his continued employment as a diver after 1992.

137. He suffers as a consequence from some shortness of breath, partly at least, through lack of exercise - he is, perhaps reasonably, reluctant to exert himself - and possibly through smoking. He is a chronic smoker and smokes 10 - 15 per day. He has a degree of permanent pain or discomfort. He is now nearly 40 years of age. I think that the proper figure for pain and suffering and loss of amenity is $300,000.

Loss of Earnings

138. Any claim runs from the 5 August 1996 when he became incapacitated. I accept that he is unable to do any work involving heavy lifting. Medical opinion is virtually unanimous that he would, since 1992, be subject to a substantial risk (20%) of a recurrence of the left pneumothorax. I do not accept that, in such a circumstance, after 1990 he would have been able to work on a construction site. He ought to have been told then that he should avoid heavy lifting and substantial exertion. Of course there are jobs on a construction site which do not involve such activity but they are known to be the less well-paid jobs. Therefore even had he not sustained the pneumothorax in 1996, I consider he would only ever have obtained light work. It is therefore inappropriate to take as the basis of calculations for future loss, the daily wage contended for on behalf of the Plaintiff in Mr Tim Kwok's final submissions.

139. I am therefore driven to a somewhat arbitrary assessment. I am sure he would have been able to achieve earnings of a higher level than those of a watchman or security guard. When working for his brother he initially earned $10,000 per month. The economic downturn and/or a realisation by his brother of his limitations brought about a reduction to $8,500. Mr Kwok indicates in his written submission that this was his salary up to the end of *2001 and continues at this figure. This is still higher than he is likely to earn on the open market. I think that open market wage is likely to be about $7,500 per month ($90,000 per annum).

Pre-trial

140. From 5 August 1996 to date his loss is therefore $90,000 x 5 5/6 = $525,000. From that sum must be deducted his actual earnings which the parties must agree.

Post-trial

141. He is now 39 years of age. The basic figure for future loss is $7,500 that figure not being subject to variation in the light of the current economic climate, and also because with the risks consequent upon his original pneumothorax he has no mobility of labour to offer. The appropriate multiplier would be 15.

142. But should I take the figure of $7,500 as his current potential? It is argued that he is now fit only for sedentary work but he continues to *work for his brother at $8,500 per month. Given his current work for his brother I find it difficult to accept that he can only do sedentary work, and that his current earning potential in alternative employment is as low as $4,361 per month. It may well be that his family "carries him" to some extent for some period and will continue to do so but I remain of the view that he has an earning potential above that contended for by Mr Kwok. I do not think it is possible to make a precise calculation on the basis of a clear partial continuing loss. Therefore I propose to adopt a more arbitrary approach, a lump sum, to meet this situation. In my assessment I will allow the sum of $300,000 to cover all future loss and risk on the labour market, and to reflect that he may not be able to continue his work for his brother.

143. In this situation I do not think it appropriate to consider the claim for loss of the Mandatory Provident Fund as a separate item. I have factored this aspect into my lump sum provision.

144. I have also made it clear, by implication if not expressly, that the risk of breakdown through recurrent pneumothorax is taken into account in the basis upon which I have calculated a figure to represent future loss in its potential varied form.

145. The tonic food claim is allowed in the round sum of $5,000. It is a reasonable figure.

146. The question of interest is for the Plaintiff's solicitors to calculate. The rates and periods applicable are fixed. They are to be agreed as sums by the parties.

Summary

147. The figures therefore are:

Pain and suffering: $300,000 plus interest.

Loss of earnings:

Pre-trial: $525,000 (less actual earnings) plus interest

Post trial: $300,000

Tonic food 5,000 plus interest

There will therefore be judgment for the Plaintiff for 70% of the resultant sum, from which must be deducted the Employee's Compensation payment of $420,000, with costs. I direct that the Plaintiff not be allowed costs in respect of the belated discovery of documents concerning his earnings from his brother's business and any tax returns in relation to them; and no costs of the summons to re-amend the Consolidated Statement of Claim.

*This is my clear understanding from Mr Kwok's submissions. If there is an error in that submission all will have to be informed.