LAU KIN WAH v. LAM SHU KAN

HCPI 1208/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1208 OF 1998

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J U D G M E N T

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1. The Plaintiff, now 35 years of age, was an experienced stevedore having worked as such for more than a decade before he sustained his injuries in an accident when working for the Defendant on 12 January 1996. He had been employed by him for about three months at that time.

2. On the day in question he was working with others in loading and unloading containers inside the cargo hold of a motor vessel, the "Trade Hope" which was moored at a buoy. In charge of the operation was a man known as Ah Tau. His full name is Wong Kam Shing. There was another supervisor by the name of Kwok Mun Fuk but the overall senior supervisor was Wong Chi Tak.

3. Work started at about 7 a.m. but shortly before 8 p.m. the Plaintiff was working on the third tier of containers. His evidence was, and this was pleaded in the Statement of Claim, that before he started work that day he complained of the slippery state of the surface of the cargo hold, and the containers on which he had to work, to Ah Tau asking him to pass it on to the foreman, who I assume was Wong Chi Tak. Ah Tau in effect, told the Plaintiff to get on with the work. The Plaintiff not unnaturally felt that he was likely to be taken off the job if he pursued his complaint. As in so many aspects of industry in Hong Kong time and a quick turnover of work have a premium over safety.

4. His job entailed hooking up and unhooking containers. There was a hook for each corner leading via a cable back to the jib cable of the crane. His place of work, i.e. on top of the containers, was slippery and the lighting was poor in the hold. It was when he was working on the third tier of containers that he fell. It was murky (my word for the conditions described) and this made it difficult to avoid the oily slippery patches. He had unhooked a lowered container. There was another container to be lowered. He stepped on an oily patch, and fell to the passageway of the lower tier (the second) of containers.

5. A stevedore's work on containers carries with it a notorious risk. That risk is heightened when the vessel being loaded or unloaded is in the roads anchored or tied up to a buoy. A container is between 8 and 9 feet high. If a fall results it is likely to occasion significant injury. There is a clear risk of fall. The movement of the four cables with hooks requires concentration on the part of the stevedore. There is always a risk of a sudden movement of the vessel. In order to provide a safe system or place of work for the stevedore in these circumstances, it is necessary that there be provided equipment and/or a structure whereby he will not fall. This is done either by a working cage or wall or netting, or a means of restraining him from falling freely off balance such as a safety belt with a secure line of attachment. Evidence has been called by the Defendant to argue that this is impractical or unrealistic.

6. In fact the Defendant's case is essentially that the Plaintiff fell because he was playing around and skipping or jumping over a cable. A safety helmet and reflective clothing, as mentioned in the final form of the Defence, are not relevant. The Defence went through various stages before it became clear what was being alleged against the Plaintiff.

7. It is of some interest and relevant to trace the various shifts and stances adopted in the Defence which was originally served on 14 January 1999. That Defence averred that the Plaintiff was advised to wear rubber shoes to avoid slipping, with instructions that he should report the slippery condition of any part of his working place. The allegations of contributory negligence were confined to a failure to report the condition of the surface and failing to heed the slippery condition.

8. This Defence lent itself to a request for particulars. Eventually the Defendant replied that the Plaintiff failed to use a safety belt when working on the containers in accordance with an oral instruction.

9. The Defence was amended on 26 May 1999. The original averments as to the instructions and equipment given to the Plaintiff were struck through and replaced by ones stating that oral instructions as to safety and the use of safety equipment (including safety belts) were given before the commencement of work on any day. Particulars of contributory negligence now alleged that the Plaintiff fell because he was jumping and skipping over the four cables (to which the hooks were attached) as they were swinging in the air before they reached him. It is however difficult to grasp this concept from the practical viewpoint.

10. The Re-Amended Defence was served on 23 June 1999. It included a denial of any complaints by the Plaintiff.

11. The Plaintiff's case was supported to some extent by Mr Luk Cheuk Lam another stevedore. No safety equipment was provided and no safety instructions were given on the beginning of work for the day. He recalled the Plaintiff mentioning oil on the cargo hold deck and then being told to carry on work. He himself noticed its presence. I am bound to say that I would be astonished if there was not, to some extent, oil present on the decks of a cargo ship, the need being to keep such oily presence to an absolute minimum. He did not see the Plaintiff fall since he was about 60 or 70 feet away on the second tier of containers. One of the more significant aspects of his evidence was to the effect that after the accident, the Defendant supplied safety helmets and belts and that he used these items.

12. It was clear from the cross-examination of the Plaintiff and his witness that the Defendant's case was that he fell because he was playing around, stupidly jumping over moving cable. It is clear that if the Plaintiff was in fact doing this, it was the height of folly. However, the evidence on behalf of the Defendant presented a rather confusing picture as reflected by the shifting nature of its pleaded Defence, in its various amendments.

13. Mr Shum on behalf of the Defendant made it clear that he withdrew any suggestion that a belt or helmet was provided to the Plaintiff or to any stevedores. This was after the evidence of Mr Wong Chi Tak to the effect that he instructed workers to wear safety helmets and, when working at height, safety belts. The confusion therefore remained to some extent because Mr Shum had sought nonetheless to adduce a document (p. 430 in the bundle) which was written in Chinese but without translation until a late stage in this case. In item 1 of that document was the instruction to stevedores on loading and unloading to "put on safety helmets, ...... safety belts etc. before commencement of work." It was the Defendant's case that this document was given to all stevedores and that they were required to sign it. The Plaintiff recalls seeing some such a document when he first started employment with the Defendant.

14. Yet the picture emerging from the evidence of the Defendant's witnesses was that safety belts were not issued, were not required to be issued and that the whole system of safety, if it can be called such, was dependent on the stevedore's ability to avoid any problem by using his eyes and nimbleness of foot to keep himself out of problems and difficulty. Mr Kwok Mun Fuk, then a supervisor with the Defendant, said he was responsible for checking safety equipment and working conditions and whether there were safety helmets and safety belts for stevedores. He went on to declare that safety belts were not appropriate for the work on containers, were not issued and therefore not worn. They were appropriate only for work at height - though it is clear that the minimum height above the deck at which a stevedore would be working would be between 8 and 10 feet, the height of a container. If the Plaintiff was working on the third tier, he would be at least 24 feet above the cargo hold deck.

15. The core of the Defendant's evidence was that the Plaintiff was seen jumping over a cable with one of the hooks, to the amusement or entertainment of other stevedores.

16. Mr Wong Chi Tak was saying that the cable was swinging towards the Plaintiff causing him to jump to avoid being hit by it. If he had not jumped the cable would have hit him. His criticism was in effect that the Plaintiff, having unhooked the cables from one container, should have moved to another. Mr Kwok Mun Fuk on the other hand said he saw the Plaintiff deliberately moving towards the swinging cable when he had no need to do so and could have moved to a safe place.

17. In Form 2 the Defendant made a report of the accident to the Commissioner for Labour. In the section entitled "Describe how the accident happened" was written:

"While he was working on the vessel, there was a surge of sea. In order to avoid the cable of the barge, he slipped from a height and sustained injury."

The expression "surge of sea" is synonymous with the expressions used by Mr Tsang in his colloquial and literal translations of the Chinese characters as "rough seas" and "big waves rolled up from the sea". None of the Defendant's witnesses accepted that there was any significant swell or other movement of the sea but the important part of this description is that there is no criticism of the Plaintiff's actions and nothing to resemble the colourful version of events put forward by the Defendant's witnesses and set out in graphic terms as an amendment to the Defence nearly 3 1/2 years after the accident and 4 months after the original Defence. The report of the accident was dated 27 April 1996, some 3 1/2 months after the accident by which time the Defendant had had ample opportunity to investigate the circumstances of the accident by questioning its supervisors.

18. Mr Shum for the Defendant argues that I should not attribute any significance to this description nor accept it at its face value, and that it was written by someone who is not a witness. The point is however that it must have been obtained from someone with direct knowledge of how the accident happened - how else could a description be given? - and it was a statutory requirement of some importance that an accurate description be given. I cannot adopt the approach suggested. I am satisfied that if there had been at that time any suggestion to support the Defendant's belated allegations they have made against the Plaintiff, it would have been reflected in that description. In my view this story is one contrived by or on behalf of the Defendant at a late stage as reflected by the Amended Defence.

19. I accept the Plaintiff's evidence and that he had earlier made some complaint, albeit in the form of a passing comment, about oily and wet patches. It is clear that he was working on top of a container, in my judgment, the third tier as he describes, without any safety equipment. There may have been something of a swell or sea surge which occurred at the same time as he slipped on the oily surface of the container. It may have occurred so coincidentally as not to have been noticed by him. The slip itself took him off balance and caused him to fall. If the oily patch could not easily be removed there should have been safety measures to prevent any fall.

20. The nature of the work carried with it a clear risk as I have said. That risk required some form of safety equipment. Despite what Mr Kwok Mun Fuk says or perhaps because of it, the safety belts referred to in the written safety instructions, and specifically pleaded in the Amended Defence, should have been supplied and a line rigged to which they could be attached. Mr Kwok said that they were only appropriate for working at height. How high does a man have to be working to justify the issue of a safety belt? The Plaintiff was working on top of the third tier, at least 24 feet above the cargo deck, and at least 8 feet above the lower tier. The written safety instructions which related to "loading and unloading" (see p. 430 heading) required safety belts to be worn. In my view that was sound advice but none was provided and so the employer was clearly at fault. Given the nature of the work and the circumstances on the day of the accident, I do not find any grounds for contributory negligence. I reject the Defendant's version of events. The Plaintiff succeeds in full.

DAMAGES

Pain and Suffering and Loss of Amenity.

21. There are agreed medical reports from Dr Philip Mao (dated 24 July 1998 and 14 October 1999) and Dr Danny Tsoi (dated 30 October 1999).

22. The Plaintiff suffered a fracture of the right calcaneus (heel bone). It was treated by open reduction, fixation by plate and screws, and bone graft. He was in hospital for about six weeks and received physiotherapy following discharge. This treatment was provided twice a week until the end of 1996 with six monthly follow-up thereafter. At the end of 1997 he was able to dispense with the crutches.

23. By the end of 1999 he was able to walk for about half an hour before needing rest. He uses an ankle support but still had spasms in the right leg. On descending stairs and slopes he experiences some loss of strength in the right limb. He has difficulty in squatting.

24. He is unable to pursue any of his pre-accident leisure activities. He suffers cramp seizures if he swims; he can no longer play basketball which he used to do once or twice a week, nor can he play football which he did occasionally.

25. Granted sick leave until January 1998 he registered with the Labour Department and although he had two interviews, one for a job as a salesman and the other as a watchman, his disability prevented him from being successful in either. Finally in September last year he obtained employment as a messenger/clerk with the Electoral Registration Office. This is temporary work. He has had short contracts renewed until the end of February of this year and the latest information indicates that there will be a further renewal until September 2000. Beyond that there is no guarantee.

26. It is clear that he cannot return to his pre-accident occupation. He may well have to have fusion of the subtalar joint - he has persisting pain and stiffness, with degenerative change. The result is therefore continuing pain and stiffness increasing no doubt with progressive degeneration of the joint which still has a range of movement, or the operation at some stage with the relief of pain at the cost of no movement in the joint. The history of such injuries in terms of litigation is that eventually fusion is required. There is agreement too between the two orthopaedic consultants as to the type of job which he is able to do. They include those for which he has been rejected and his current job.

27. In my view the proper figure under this head is $375,000.

Pre-accident loss of earnings.

28. It is agreed that at the time of the accident he was earning $15,000 per month. That is the figure set out by the Defendant in Form 2. No satisfactory admissible evidence has been adduced by the Defendant of the levels of wages paid to stevedores since that time. I rejected Mr Shum's application to adduce at this late stage some sheets of figures, which appear to be monthly payments to some workers, unsupported by any statement as to what these records are, the periods they relate to and which refer to stevedores. Similarly there is no evidence from the Plaintiff's case as to the rates prevailing over the past 4 years. Mr Hung invites me to assume that a notional increase of 8 percent, year on year, is applicable but that seems to fly in the face of the current economic climate which has afflicted us for about 2 years.

29. There is some information from the Defendant's last witness - Mr Wong Kam Shing - which I elicited from him in the hope that it would assist me. He is no longer with the Defendant firm but is still a supervisor of stevedores. In 1996 his monthly wage was $18,000 but is now only $16,500. However, he does not choose to work all the hours available because of some neck injury and the stress of a more responsible job. He could boost his earnings up to about $17,500 if he chose to do so.

30. In my view, the fairest course is to take the Plaintiff's pre-accident monthly salary of $15,000 as holding for 2 years following the accident, but as reducing to about $14,500 to date. The pre-accident loss is therefore:

	$15,000 x 24	= 360,000
and	$14,500 x 25	= 362,500
	This is a total of:	$722,500	.
		======

From this are to be deducted his earnings since September 1999 - $6,417 x 6 = $38,500 leaving a net figure of $684,000.

Future loss of earnings.

31. The argument is now essentially over the figure (multiplicand) to represent what he would have received in the future. As Mr Hung argues the indications are for an upturn in the economy, and that I should proceed on the basis of a reversion to the usual annual increases. The first of his propositions I accept but I have difficulty with the second. I do not think one can safely assume that those levels of increase, year on year, will ever return in the foreseeable future.

32. It is more realistic to assume that there will probably be a return to the 1996/1997 levels which will then stabilise. Accordingly the basic multiplicand should be $15,000 monthly from which has to be deducted his current earnings of $6,417 monthly, leaving a continuing partial loss of $8,583.

33. As to the multiplier the parties are at issue to only a minor extent. Mr Shum argues for 12 and Mr Hung for 13. He is only 35. He would have continued as a stevedore until 60 years of age. Thereafter I consider he would have found work which he could have continued at the same level of earnings perhaps as a supervisor with less direct physical involvement. In any event he had been quite an active man before his accident. I think one could have argued for a higher multiplier than 13 but I will accept this as the minimum applicable.

34. His future loss is therefore $8,583 x 12 x 13 = $1,338,948.

Loss of earning capacity.

35. Mr Hung argues the applicability of the principle in Moeliker v. Reyrolle (otherwise Smith v. Manchester Corporation).

36. The Defendant's Counsel says that his present job has been confirmed on several occasions and most recently he has a contract until September of this year. The inference which I am invited to draw is that his obviously satisfactory performance will guarantee him continuous employment and that there is no real risk of his being unemployed.

37. I think that there are a number of factors working against that approach. He was unemployed for 20 months after his sick leave expired. Although registered with the Labour Department, he was unsuccessful in the two interviews he was given. Although his current employer has renewed his contract, it is still only short-term and the needs of the Electoral Registration Office are unknown on a long-term basis. It is moreover a fairly simple job which others, more able-bodied and with longer tenure with the Office, would be able to do if there were to be any cut-back of staff.

38. I think there is a real risk of his being out of work again probably for significant periods. Although the level of unemployment is reducing, he will nonetheless be competing in a difficult market. In quantifying this head of damage, there is inevitably an arbitrary factor. No precise formula is appropriate. I think an award of $125,000 fairly reflects this risk.

Special Damages.

39. The remaining items of loss claimed are agreed as follows:

Tonic food	3,000
Travelling expenses	6,432
Medical expenses	6,565
Expenses incurred for care of son	16,000
Total	$31,997
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Summary.

Pain and Suffering	375,000
Pre-trial loss of earnings	684,000
Future partial loss	1,338,948
Loss of earning capacity	125,000
Special Damages	31,997
Total	$2,554,945
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There will therefore be judgment for the Plaintiff for $2,554,945 less the Employees Compensation of $408,388 leaving a net figure of $2,146,557, together with costs to be taxed on a party and party basis if not agreed. There will also be an order for Legal Aid taxation.

40. The Plaintiff is additionally entitled to interest on those items which rank for interest (viz. general damages, pre-trial loss of earnings and special damages) at the appropriate fixed rates for the appropriate periods. These calculations are to be agreed by the parties and submitted to the court.

Costs.

41. Some of the preparation of documents in this case was unnecessary. For some reason two trial bundles were prepared for the court and filed at different times. I direct that only one bundle be allowed on taxation. Furthermore the bundles contained 50 pages of an Occupational Therapy report which I had ordered on 10 November 1999 was not to be adduced. All in all there was excess copying of 493 pages. This should not be allowed on the Legal Aid taxation, nor should it be charged to the Plaintiff personally.