WONG SIU WA v. WIN SINO ENGINEERING LTD

HCPI 571/2016

[2018] HKCFI 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 571 OF 2016

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JUDGMENT

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1.  This is the Plaintiff’s claim against the Defendant for back injuries he sustained in two work accidents. The first occurred on 21 July 2015 while he was manipulating a mooring line leading ashore from a work barge, and the second occurred on 17 August 2015 while he was handling a coil of wire.

THE PLAINTIFF

2.  The Plaintiff was born in mainland China on 20 February 1980.  He came to settle in Hong Kong in about 1989.  He was educated up to Form 5.  At the time of the two accidents, he was aged 35.

3.  Over the years, the Plaintiff had undertaken employment in various capacities.  Between 1998 and 2005, he worked in different construction sites as an electrician, holding what is known as a Grade A electrician certificate, which was at the entry level.

4.  Between 2005 and 2008, he worked as a slinger (colloquially known as hookman) at a container handling facility at Tsing Yi Island.  Between 2008 and 2013, he was employed by the management company of housing estate as an in-house technician attending to routine maintenance and repair work.

5.  Since 23 August 2013, the Plaintiff was employed by the Defendant as an Assistant Supervisor (cum electric worker) and was deployed to work at a man-made island (the “Island”), which was part of the Hong Kong–Zhuhai–Macao Bridge project (the “Bridge” project).

6.  At the material time, the Plaintiff was the holder of various certificates pertinent to training he had received in occupational safety and health, namely, (a) Construction Industry Safety Training; (b) Rigger & Signaller Safety Training; (c) Shipboard Cargo Handling Basic Safety Training; and (d) Work Supervisor Safety Training.

SITE FORMATION WORK AT THE ISLAND

7.  The Defendant is a company incorporated in Hong Kong and asub-contractor of China Harbour Engineering Company Limited (“CHEC”),which was the contractor responsible for site formation work of the Island.

8.  ARUP was the consultant engaged by the HKSAR Government to supervise the construction work under the Bridge project.

9.  The Island is located at the body of water (known as Urmston Road) off Lantau Island to the west of Chek Lap Kok Airport, along the westerly course of the Bridge leading to Macao and Zhuhai.

10.  For the purpose of its work at the Island, CHEC established an operational base at Tung Chung in Lantau (north).  A shuttle boat was chartered for conveying of personnel and materials to and from the Island on a day-to-day basis (the “Shuttle Boat”).

11.  By mid-2015, the primary foundation work had been done and the Island had already taken shape.  The Defendant had also established a site office on the Island.  Various construction machinery such as backhoes (or excavators) were deployed to and operational at the Island.

12.  At the fringe of the Island was a Sloping Seawall where reinforcement work was in progress.  In order to build the Sloping Seawall,piles and casings were driven into the seabed.  A casing is like a section of an enormous hollowed cylindrical tube made of steel standing upright. 

13.  Boulders were then used to fill up the space inside and around the cylindrical casings.  After that is done, only the rim of a casing (ie the exposed end of the hollowed cylinder) can be seen, which looks like a slightly curvy metal plate standing vertically amongst the boulders.  Along the exposed rim of a casing is a line of holes probably used for slinging of the casing during installation. A metal rod (or marker) waswelded vertically to the rim of the casing for identification and/or surveying purposes (see photograph at Exhibit D1).

14.  The boulders used to build the Sloping Seawall were imported by ocean-going vessels, which would be moored far away from the Island where the cargoes of boulders would be discharged into work barges (otherwise known as dumb steel lighters).  

15.  The transshipment was necessary because (a) it would not be safe for ocean-going vessels to get into shallow water close to the Island; and (b) in order to deposit the boulders into the seabed to build and/or reinforce the Sloping Seawall, a fair degree of precision with the use of the boom derrick on the barge would be required. 

16.  Typically, a barge has a rectangular hull with a boom derrick at the bow and an accommodation block at the stern.  At each of the four corners of the barge is a mooring station on deck whereby a mooring wire or cable wound-up on the drum of a winch can be paid off (extended) or retracted through a pair of guiding rollers (fairleads) at the side of the barge.

17.  For the work at the Island, a barge would be towed by a tug to a work locationnear the fringe of the Island and would be positioned parallel to the shoreline.The two corners at the seaward side would each be secured by an anchor dropped onto the seabed. 

18.  Likewise, the two corners of the barge facing the shore would each be moored to one of the locks located along the shore.  The locks were prepared in advance.  Each lock was made by wrapping a length of wire around a big boulder and the eyes (loops) at the both ends of the wire would be joined and secured by a shackle to make it ready to receive a mooring wire leading from the barge. Where necessary, a backhoe might be employed to move the boulders in preparing the locks.

19.  By way of background, a shackle consists of an U-shaped solid tubular metal piece and a separable solid cylindrical metal shaft.  At the end of eachof the two limbs of U-shaped metal piece is a flattened part with a hole in it matching the diameter of the shaft (ie the 2 holes being perpendicular to the flattened surface and in alignment to each other). The hole at one of the two limbs has screw threads inside, which matches the screw threads at one end of the shaft.After the shaft is inserted through the (non-threaded) hole at one limb of the shackle, it can then be screwed into the (threaded) hole at the other limb to close the shackle.By unscrewing and screwing the metal shaft, the shackle can be opened and closed for inserting or removing the eye (or a similar shackle) at the end of a mooring wire.

20.  Notwithstanding that a barge has no navigational power, where each of its four corners has been secured in the manner as aforesaid, the barge will have a degree of manoeuvrability by adjusting the length of the respective mooring wires.  This coupled with the range of movement of the boom of the derrick will allow it to work at different location within its range of manoeuvrability.

21.  A motorized wooden sampan (the “Sampan”) was chartered by the Defendant and stationed at the Island.  When the shore mooring line of a barge was first established or when the barge had to be relocated to a new work area, the following procedure would be adopted.

(a)  A slack portion of the mooring line (about 10 m in length weighting about 30 lbs) paid off from the barge’s fairleads would be put on the deck of the Sampan and temporarily secured to the side of the Sampan by the use of a small chain;

(b)  The Sampan would then carry the mooring line (as it was continually paid off from the barge) to the shore and hold fast in order to bear the weight of the wire and the pulling force generated therefrom;

(c)  A workman on the Sampan would take the slack portion ashore and attach it to a lock by using a shackle;

(d)  After the end of the mooring line was secured to the lock, the wire could be totally released from the Sampan and it would be within the control of the winch on the barge.

22.  At the material time, the Plaintiff’s work at the Island involved the mooring of the work barges, supervising the deposit of boulder materials into the seabed from the barges, measuring the depth of the bounders lowered into the seabed (by using a weight attached to a chain) and other tasks as might be assigned by the Defendant.

23.  The Defendant’s operation at the Island was under the overall supervision of Leung Kin Sing (Site Agent), who had some training in civil engineering.  Leung was assisted by a Supervisor by the name of Wong Chi Kei (“WCK”).

24.  All of the Plaintiff, Wong Tak Ming (“WTM”) and Tsang ChiuHung (“TCH”) were employed by the Defendant as “Assistant Supervisors”.There was a general worker by the name of Ali Riasat, who is Pakistani.

25.  For the work at the Island, two WhatsApp groups were set up, namely, one group involving ARUP (“ARUP Group”) and another group for internal communication amongst the Defendant’s staff (the “WS Group”). 

THE FIRST ACCIDENT

26.  The Plaintiff’s case is that at about 2:00 pm on 21 July 2015, he was on duty at the Island.  He received instruction from Leung in the WS Group to shift “Chun Ming 33”, a barge operating at the Island (the “Barge”). The Plaintiff learned from Ali that it had just been shifted to and moored at its new location the day before.

27.  Accordingly, the Plaintiff reported to WTM and was tasked to attend to it along with Ali.  The Plaintiff first attended to the mooring line leading from the bow of the Barge and took photographs to send back to Leung through the WS Group.

28.  Thereafter, he received a call from Leung instructing that the photographs sent by the Plaintiff did not show the mooring line, which needed to be moved.  In fact, it was the one leading from the stern of the Barge that needed to be moved (the “stern wire”). 

29.  It transpired that the stern wire was wrongly attached by a shackle to a hole at the top a metal casing instead of a lock.  More particularly, the stern wire was so attached with the shaft of the shackle in the hole of the casing and it’s position was so close to the marker thereat that surveying work might be affected (see paras. 13 and 18 above).Hence, it had to be relocated.

30.  In order to relocate the stern wire, the Plaintiff pulled it in and hold fast to it with his body strength so as to create a slack portion to allow Ali to unfasten the shackle (attached to the hole of the casing) and move it to a lock located a few metres away.  He then took photographs of the relocated stern wire and sent them through the WS Group to confirm with Leung (see photographs at C2/273 and 274 of the trial bundles).

31.  The Plaintiff strained his back while pulling and holding fast the stern wire in the course of relocating it as aforesaid (the “1^st Accident”).  He did not think much of it at the time and he did not tell anyone.  Naturally, Ali did not have any recollection of the Plaintiff suffering any accident since it was just another mundane day at work.

32.  In the Amended Defence, the Defendant denied the occurrence of the 1^st Accident and put the Plaintiff to strict proof.  It is extraordinary that only the Plaintiff (but not the Defendant) was able to produce records of the messages in the ARUP Group and the WS Group. 

33.  In Leung’s Witness Statement (dated 4 October 2016 and filed on 19 January 2017), he portrayed that instructions would be given to the Plaintiff through the ARUP Group and it was not necessary for him to give direct instruction to the Plaintiff.  Nothing was mentioned by Leung about the work record afforded by the messages in the WS Group and what had become of it.

34.  In WTM’s witness statement (dated 14 November 2016 and filed on 19 January 2017), it is said (at paragraph 15) that he was only asked by Lam Ying Fai (Manager of the Defendant) on 21 August 2015 about the Plaintiff’s alleged accident on 17 August 2015 (see below).

35.  WTM also said that it was not until 27 June 2016 when he learned about the Plaintiff’s allegation of the 1^st Accident. He denied that the Plaintiff had reported to him before proceeding to carry out the work on 21 July 2015, which allegedly led to the 1^st Accident (see para 4(3) and (7) of WTM’s witness statement).

36.  Subsequently, the photoshots of the relevant entries in WS Group were exhibited to the Plaintiff’s Supplemental Witness Statement (dated 9 March 2017 and filed on 6 June 2017).  Both Leung and WTM prepared their respective supplemental statements in reply (dated 27 June 2017) but they singularly failed to address the evidence afforded by the photoshots as to the events surrounding the 1^st Accident.

37.  Remarkably, WTM said in cross-examination that he still had WS Group messages when he prepared his first witness statement around November 2016.  For some inexplicable reasons, the record was deleted and not preserved.

38.  At long last, Leung accepted at trial that it was him who gave the Plaintiff instruction on the phone to shift the stern wire.  He explained that during his site inspection in the morning, he discovered that the stern wire was wrongly attached to the casing, which was too close to the marker. 

39.  He also confirmed that initially he received the photographs of the bow wire from the Plaintiff in the WS Group and saw the need to give further instructions to the Plaintiff on the phone to deal with the stern wire. Lamentably, all these were apparently not brought to the attention of the Plaintiff’s counsel before trial so that the Plaintiff’s evidence could be considerably shortened.

40.  The WS Group record also showed that the Plaintiff applied forleave on 22 July 2015 although he did not state the reason therefor or mention anything about the 1^st Accident.  In his oral evidence, the Plaintiff explained that he thought it was a minor matter and he could rest it out.  That was what he would do when he sometimes experienced muscle pain from strenuous work or sporting activities.

41.  The Plaintiff returned to work after resting for one day.  However, on 10 August 2015, there was a flare up of the back pain and he consulted Dr Chan Chi Wai Nixon, a general practitioner in Tin Shui Wai.  He was prescribed some anti-inflammatory drugs and was able to return to work. 

THE SECOND ACCIDENT

42.  In the afternoon on 17 August 2015, the Plaintiff and his brother, Wong Siu Pang (“WSP”), who was also employed as “Assistant Supervisor” by the Defendant, were asked by WCK to accompany him to the shop of a Marine Store Dealer in Tsing Yi to pick up some second-hand steel wires to be delivered by the Shuttle Boat to the Island for use in connection with mooring of barges.

43.  Just to digress a little, it is necessary to describe the Shuttle Boatin some details.  From the photographs, it would appear that the Shuttle Boat had an iron hull with an overall length of about 30 to 40 feet and a beam (width) of about 10 to 12 feet.  There was a bulwark (vertical wall) about 2 feet in height, which ran around the whole perimeter of the main deck.  The bow was mainly flat (as opposed to being pointed), with 3 rubber tyres affixed outboard across its width for use as fenders during berthing. 

44.  The Shuttle Boat had an open main deck occupying slightly over half of its length from the bow (the “main deck”). However, there was a raised foredeck (levelled with the bulwark) across the whole width of the bow extending about 4 feet aft (the “Foredeck”).

45.  The wheelhouse (or steering cabin) was aft of the main deck occupying almost the full width of the Shuttle Boat leaving only a narrow passageway at the bulwark on either side.  Across the width of the wheelhouse were 4 windows (each about 2 feet wide) facing the bow.  Inside the wheelhouse was a raised platform about 1 foot in height running across the whole width.

46.  The wheel was located amidship. The coxswain’s seat was immediately behind the wheel, which was a swivel chair on a single metal pole mounted onto the raised platform.  There was also a wooden footrest directly underneath the wheel.

47.  There is no dispute that the Shuttle Boat had a crew complement of two including a coxswain (Uncle Kwan) and a sailor (Uncle Ping).

48.  In the afternoon on that day, WTM was on the Shuttle Boat at or near the Island awaiting instructions along with TCH and a surveying staff by the name of Wong Fai Tat (“WFT”).  Around 2:00 pm, WCK called WTM to make arrangement for the Shuttle Boat to pick up the steel wires at the Tung Chung New Development Pier (the “Pier”).

49.  There is a divergence of evidence as to the state of the wires.  The Plaintiff and WSP said the wires were kept in a container belonging to the Marine Store Dealer and they had to disentangle them from a pile of other wires.  WCK however suggested that although the wires were bought second-hand, each wire had been coiled up and was ready for collection.

50.  There is however no dispute that there was a total of about 20 steel wires, each measuring about 2 inches in circumference (ie about ⅔ inch in diameter), 10 metres in length and about 30 pounds in weight.

51.  On the Plaintiff’s case, he and WSP coiled up each of the 20 odd steel wires and loaded them onto WCK’s farm truck.  They then went with WCK on the truck to a service station in Tsuen Wan to have the engine oil changed.  Thereafter, they went to the Pier to rendezvous with the Shuttle Boat.

52.  Upon arrival at the Pier, the Plaintiff and WSP unloaded the 20 odd coils of wires to the ground near the top of a landing place at the Pier (ie a flight of steps leading from street level down to the sea with a stair landing halfway).  There is a dispute as to whether WCH took part in the process of unloading but it is not particularly relevant.  Importantly, it is not disputed that WCK left shortly thereafter leaving the Plaintiff and WSP to wait for the Shuttle Boat.

53.  The Shuttle Boat then arrived at the Pier and adopted a head-on position against the landing place.  The tide of the day was such that the Foredeck was more or less levelled with the said stair landing halfway of the steps (the “landing”). No mooring line was attached.  It was intended that the Shuttle Boat would maintain its position, with its bow pressing against the landing, through suitable use of engine power.

54.  The Plaintiff said he first rolled down 2 coils of wires to the landing which had been rendered loose in the process.  At this point, TCH jumped from the Shuttle Boat to the landing to assist.  He was followed by Uncle Ping.

55.  A line of men was then formed with WSP positioned near the top of the steps.  Uncle Ping was a few steps down, whereas TCH was at or near the landing.  This set up allowed the coils of wires to be passed from one person to the next down to the landing.

56.  Intuitively, the Plaintiff took up position at the Foredeck to receive the coils of wires from TCH, who was standing on the landing.  It was done one coil at a time.

57.  The Plaintiff explained that after receiving a coil of wire with both hands, he had to take one or two steps backward on the Foredeck and turned his body sideway in order to deposit the coil onto main deck of Shuttle Boat.

58.  In the course of handling a coil of wire after receiving it from TCH, the Plaintiff felt some resistance and he had to apply extra force.  Although he did not see it, he deduced that a loose end of the coil was trapped between the edge of the landing and the bow of the Shuttle Boat, where the rubber-tyre fenders were located, since the Shuttle Boat was pitching due to the waves.

59.  The extra force was sufficient for the Plaintiff to break free from the resistance, which he had felt, probably due to release of the wire from its trapped position.  However, the Plaintiff sprained his back in the process (the “2^nd Accident”).

60.  Despite the pain he felt at the time, the Plaintiff continued to finish the task of loading of the 20 odds coils of wires onto the Shuttle Boat.

61.  The Shuttle Boat then departed from the Pier and sailed to CHEC’s base in Tung Chung to drop off the Plaintiff, WSP and WFT at a pontoon so that they could get ashore and knock off.  The Plaintiff said that while they were leaving, he complained to WSP in the presence of WFT that he had sprained his back.

62.  The Defendant denied that the Plaintiff had met with any accident on 17 August 2015.  The Defendant called WTM and TCH to give evidence.

63.  TCH said only WSP and the Plaintiff handled the coils of wires from the land side at the Pier. Instead of the Plaintiff, it was him  at the Foredeck receiving the coils of wires and put them onto the main deck of the Shuttle Boat, where Uncle Ping was assisting.

64.  According to TCH, there was nothing untoward in the whole process of receiving the 20 odd coils of wires onto the Shuttle Boat.  It was an uneventful day and the Plaintiff along with WSP and WFT knocked off upon arriving at the pontoon of CHEC at Tung Chung.

THE LAW

65.  The Plaintiff’s pleaded case is framed only on the basis of (a) negligence and (b) breach of contractual duty on the part of the Defendant (as his employer).

66.  Notwithstanding the very lengthy “Voluntary Particulars” furnished on 26 March 2018, the Plaintiff makes no reference to the Occupational Safety and Health Ordinance (Cap 509), in particular, the statutory provisions concerning “Manual Handling Operations” under Part VII of the Occupational Safety and Health Regulation (Cap 509A).

67.  In the circumstances, the case is to be analyzed under the law of negligence and breach of contract of employment, which will rise and fall together (see Yuen Yiu Kwong v Chan Kwok Chuen & OrsHCPI 1356/1999 (unreported), Mr. Recorder Edward Chan SC, 20 December 2002 (at paragraph 21) and Matthews v Kuwait Bechtel Corpn [1959] 2 All ER 345).

68.  It is trite law that as the employer, the Defendant owed a non-delegable duty to provide the Plaintiff with a safe system of work, a safe place of work and safe tools with which to do the work. Further, the employer’s duty extends to a single operation, where necessary, for the sake of safety (see Charlesworth & Percy on Negligence (13^th Ed) at Paras. 11-05 & 11-68).

69.  The starting position is the often cited ratio of Lord Oaksey in Winter v Cardiff Rural District Council [1950] 1 All ER 819 (at 822 to 823)that:

“In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. ... where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.” (emphasis added)

70.  In General Cleaning Contractors Ltd v Christmas [1953] AC 180 (at 189 – 190 and 194), Lord Oaksey stated that:

“... it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. ... It is ... for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.”

“No doubt he cannot be certain that his men will do as they are toldwhen they are working alone. But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.”

71.  An unnecessary risk is “any risk that the employer can reasonably foresee and which he can guard against by any measures, the convenience and expense of which are not entirely disproportionate to the risk involved” (see Harris v Brights Asphalt Contractors Ltd [1953] 1 WLR 341 at 344).

72.  An employer’s duty to take reasonable care in carrying out his operation so as not to subject his employees to unnecessary risks in all the circumstances is a personal duty owed to each employee (see Paris v Stepney Borough Council [1951] 1 All ER 42 (HL) at 50, per Lord Oaksey and Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265 (CA) at 272, per Parker LJ).

73.  Likewise, the implied term under a contract of employment obliged the employer to take reasonable care for the employee’s safety (see Smith v Baker & Sons [1891] AC 325 (HL)).

74.  In Lai Wah Wai v Castco Testing Center Ltd [1996] 2 HKC 44, Cheung J (as he then was) held that:

“The standard of an employer’s duty towards his employee is to see that reasonable care is taken; the scope of that duty extends tothe provision of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work. (Wilsons and Clyde Coal Co Ltd v English [1938] AC 57.)”

75.  Cheung J continued to explain that:

“A system of work is the term used to describe:

(1) the organization of the work;

(2) the way in which it is intended the work shall be carried out;

(3) the giving of adequate instructions (especially to inexperienced workers);

(4) the sequence of event;

(5) the taking of precautions for the safety of the workers and at what stage;

(6) the number of such persons required to do the job;

(7) the part to be taken by each of the various persons employed;and

(8) the moment at which they shall perform their respective tasks.

(Paragraph 10-59 Charlesworth & Percy on Negligence (8th Ed) [c.f. Para. 11-67 in the 13^th Ed.].)”

76.  By way of illustration, Leong J (as he then was) applying the ratio in Winter (supra) held in Cheung Suk Wai v Attorney General [1996] 4 HKC 288 (at 296B) that the task of removing rubbish bags in a public park and depositing the same into a refuse bin was a simple operation that could be left to the plaintiff herself and hence the Regional Services Department was not negligent in not giving her any specific instruction as to how she should go about her work.

77.  Similarly, in Li Wai Kin v Ready Chance Ltd HCPI 466/2008 (unreported), 27 April 2010), the plaintiff driver injured his back while handling a luggage (measuring 3 feet × 2.5 feet ×7–8 inches and weighing about 20 lbs) within the passenger compartment of a coach in his charge.  Chung J exonerated the defendant employer holding (at para. 31) that “the matter is a simple act of lifting heavy object, which is an act common in daily life”.

78.  Remarkably, in Lam Ha Fuk v Luen Hop Development Engineering Limited, HCPI 889/2006 (unreported),25 February 2009, the plaintiff injured his back while manual-handling an underground electric cable in a trench.  On dismissing the claim, Chung J emphasized (at paras 18 to 25) that there was no evidence as to the weight of the cable and the level of manpower which ought to have been provided.

DISCUSSION ON LIABILITY

The 1^st Accident

79.  In the main, the Plaintiff’s account of the 1^st Accident is uncontroverted.  There is now no dispute that the Plaintiff’s work at the Island on that day involved moving the stern wire of the Barge from the casing at the shore to the lock a few metres away.

80.  Even on the Defendant’s case, the Plaintiff would be required and expected to manual-handle the stern wire so as to allow Ali to remove the shackle from the casing and relocate it to the lock.

81.  The only difference is that the Defendant seeks to argue that after hauling in the stern wire, there would be no need for the Plaintiff to hold fast (ie continuing to hold the wire to keep it in position) since the portion of the wire above water (about 10 metres) would be resting on the length of rocky surface of the shore and the wire would be “loose” (ie not under any strain or tension).

82.  I am unable to agree with the Defendant’s argument. On a rough-and-ready approach, the stern wire was some 50 metres to 100 metres in length. It is of the same type and size of wires involved in the 2^nd Accident and there is no dispute that a section of the wire about 10 metres in length was about 30 lbs in weight. On this basis, the weight of stern wire would be between 150 lbs to 300 lbs. 

83.  It is a matter of common sense that when a length of wire is suspended at its two ends under its own weight, it would adopt a curved position.  This is known as the catenary curve.

84.  The weight of the wire itself would create a strain on the stern wire despite that fact that it was not kept taut (or under strain) by the winch on board the Barge. In this sense, the Defendant’s description of the stern wire being “loose” can be quite misleading. Just because it was “loose” does not mean that the handler would not experience any pulling force from the sheer weight of the wire.

85.  On this basis, the weight of the stern wire borne by the Plaintiff while hauling in would be about 75 lbs to 150 lbs (ie ½ of the estimated weight of the stern wire).

86.  The Defendant seeks to rely on the evidence of Ali that as a matter of practice once the stern wire was hauled in, it would not be necessary for the Plaintiff to continue to hold onto it. To start with, what Ali demonstrated on the video footage is that he had to use force to yank the wire upward so as to overcome the friction as a result of the contact between the exposed section of the wire and the rocky surface.

87.  Hence, contrary to the Defendant’s contention, the friction could not be relied upon to hold the wire in position. More importantly, Ali explained in oral evidence that it would be necessary to hold the wire in position by stepping on it or else it would move.

88.  I take this to mean that if the hauled in stern wire was not kept in position (whether by stepping on it or otherwise) it would be “whipping” around due to the pulling force from the weight of the wire itself.  Hence, the Plaintiff cannot be criticized for holding fast to the stern wire with his bare hands after hauling it in.

89.  Further, the Plaintiff’s case is that the shifting of the fixation point of the stern wire from the casing to the lock was not a “normal” mooring manoeuve. By normal manoeuvre, it is a reference to the usual mooring procedure as follows:

(a)  Where a mooring line of a barge was first established, the Sampan would be used to bear the weight of the wire and the worker such as the Plaintiff would only need to handle the slack portion (about 10 metres in length or 30 pounds in weight) on the Sampan;

(b)  Where a mooring line was to be removed in order for the barge to move on to the next working location, all that the worker needed to do was to haul it in, keep it steady, remove the shackle and then let go for it to be winched back to the barge. 

90.  The unusual circumstances surrounding the 1^st Accident are that the shaft of the shackle was inserted into a hole of the casing (see Exhibit D1).  Therefore, the Plaintiff had to haul in the stern wire and hold fast to it so as to allow Ali enough slack to remove the shackle.

91.  This makes sense because there would be a pulling force due to the weight of the stern wire itself.  If there were not enough slack for Ali to work with, he might not be able to unscrew the shaft from the body of the shackle with ease.

92.  Further, after the shackle was removed, the end of the stern wire (with an eye) had to be immediately carried and reapplied to a lock a few metres away. It is therefore different from a situation where the worker could simply let go of the wire after removing the shackle.

93.  I am therefore satisfied that the 1^st Accident happened in the way described by the Plaintiff. 

94.  As readily accepted by Leung, there was no methodology statement for the mooring operation. The Defendant simply left it to the Plaintiff to decide for himself how he was to go about his work on the basis of (a) the Plaintiff’s previous training and experience as a rigger and/or shipboard cargo handler; and (b) the on-site induction training provided to the Plaintiff by the Defendant or CHEC touching upon manual-handling in general (ie carrying objects around).

95.  Admittedly, in the training provided by the Defendant or CHEC, there was nothing about manual-handling of steel wires some 50 metres to 100 metres in length, which required weight-bearing as much as 75 lbs to 150 lbs (see paragraph 85 above).

96.  In passing, there is a dispute as to whether or not a backhoe would be needed to hold the stern wire in position when the shackle at the casing was being removed and relocated. 

97.  Both the Plaintiff and Defendant put forward Ali as an honest witness.  Ali explained that a backhoe was only used for about 5 times in his few years of work at the Island.

98.  I am of the view that the fault in the system of work lies in the failure on the part of the Defendant to appreciate that the mooring operation,which has led to the 1^st Accident, should entail the provision of extra manpower required to hold the stern wire in position so as allow enough slack for the shackle affixed to the casing to be safely removed and relocated.

99.  The shifting of the stern wire required a fair bit of organization.  It is not the type of simple task, which can be left to an employee having sufficient control over how he is to go about his work and the weight he is to bear. In this regard, cases such as Cheung Suk Wai v Attorney General (supra) and Li Wai Kin v Ready Chance Limited (supra) and many others cited by Mr Wong are distinguishable on the facts (see paragraphs 76 and 77 above). Further, there is at least some evidence as to the weight of the stern wire to be borne by the Plaintiff (c.f. Lam Ha Fuk v Luen Hop Development Engineering Limited (supra) – see paragraph 78 above).

100.  Alternatively, the Sampan could and should have been deployed to bear the weight of the stern wire (ie the pulling force experienced by the Plaintiff while holding fast to the wire).  However, on the evidence, it was otherwise engaged in surveying work and therefore not available.

101.  According, I find the Defendant liable to the Plaintiff for the injury he sustained in the 1^st Accident.

The 2^nd Accident

102.  There is no dispute that the Plaintiff was involved in preparing and moving the 20 odd coils of wires at the shop of the Marine Store Dealer in Tsing Yi and at the Pier for which there was no lack of time or manpower.

103.  Each piece of wire, when made into a coil, was roughly about 1 metre in diameter and weighed about 30 pounds.  It is not an exceptionallyheavy load for manual-handling.  On a proper analysis, the manual-handling of the wires is just the background and not the cause of the 2^nd Accident.  Hence,the Plaintiff’s allegation that a machine (or lifting appliance) ought to be provided by the Defendant is unrealistic and far-fetched.

104.  More importantly, there is a dispute as to whether the Plaintiff was on the landing at the Pier or at the Foredeck of the Shuttle Boat.  In this regard,I prefer the evidence of the Plaintiff to that of TCH.

105.  The Plaintiff is frank that he did not see the loose end of the coil of wire he was handling and he only felt some resistance while receivingthe coil and turning towards the main deck of the Shuttle Boat.  He deduced that the loose end of the coil of wire was trapped between the Pier and the bow of the Shuttle Boat, where the rubber-tyre fenders were located. 

106.  In contrast, TCH’s evidence is not so reliable. At one stage, he portrayed that while at the Pier, the engine of the Shuttle Boat was not engaged in gear.  When he realized that it was not plausible since in that scenario the Shuttle Boat would have drifted along with the current, he changed his evidence and said that the engine was running and was engaged in gear pushing ahead against the Pier.

107.  On a balance of probabilities, I find that the Plaintiff was in fact standing at the Foredeck to receive the coils of wires from TCH who was at the landing.  In the course of it, the Plaintiff experienced some resistant force while stepping back and turning to the side to deposit the coil of wire onto the main deck of the Shuttle Boat. 

108.  For the sake of completeness, it is unlikely that the loose end of the coil of wire was entangled by other objects (such as one of the bitts at the Foredeck for mooring).  Otherwise, the Plaintiff would have to take steps to disentangle it and he would have remembered it.

109.  It is more likely than not and I so find that resistance experienced by the Plaintiff was caused by a loose end of the coil of wire being momentarily trapped between a rubber-tyre fender at the bow of the Shuttle Boat and the side of the Pier so that the Plaintiff had to apply extra force to overcome the resistance so created. 

110.  The Plaintiff said he saw WTM at the wheelhouse through the windows and Uncle Kwan (Coxswain) was staying outside the wheelhouse at the starboard side of the main deck (as marked in Exhibit D2).  By this, he deduced that WTM, who was not qualified to operate the Shuttle Boat, was at the helm.

111.  The Plaintiff’s evidence was corroborated by WSP that while standing at the top of the steps at the Pier looking down to the Shuttle Boat, he was able to see WTM in the wheelhouse.  Through the windows, he saw WTM’s hand on the wheel controlling the Shuttle Boat.

112.  This was however vehemently denied by WTM.  He said he was all along standing on the platform inside the wheelhouse right next to the wheel overseeing the transportation of the coils of the wires from the Pier onto the Shuttle Boat.  However, it is extraordinary that when asked by the Court where was the coxswain at the material time, his answer was “I do not know”.

113.  For one reason or another, the Defendant did not call Uncle Kwan (Coxswain) to give evidence.  No explanation was proffered by the Defendant.  Admittedly, WTM was not qualified as a coxswain.  There isevery incentive for WTM and TCH to cover-up the fact that  WTM was the person at the helm. In so far as may be necessary, I find that it was WTM at the helm at the material time of the 2^nd Accident.

114.  However, that is beside the point. The major fault on the part of the Defendant lies in the lack of proper supervision so that the trapped wire could be detected in good time. 

115.  WTM said he was supervising the transfer of the 20 coils from the Pier onto the Shuttle Boat.  He said he did so by standing on the platform inside the wheelhouse looking through the windows to the bow section. Even if that is true, WTM was unlikely to be able to see any wire trapped in the gap, which might exist momentarily, between the rubber-tyre fender(s) at the bow of the Shuttle Boat and the side of the Pier. His view would have been blocked by the body of the Plaintiff and the surface of the Foredeck.

116.  In order to exercise proper supervision, WTM ought to have position himself at the bow of the Shuttle Boat and be prepared to render assistance and/or to warn the Plaintiff as might be required.

117.  Regardless of who was at the helm, it is remarkable that the Shuttle Boat was not secured by mooring line to the Pier at all.  It may well be a common practice to hold the Shuttle Boat in position by  engine power so that its bow would be pressing against the Pier. 

118.  This calls for a great deal of skill in balancing engine power against the drift due to the tide. For instance, it would not have helped for the helmsman to go full throttle ahead since the reactionary force would cause the Shuttle Boat to bounce back from the Pier.

119.  It is instructive to note that in Frances Christine Keeling v The Hebe Haven Yacht Club Ltd., DCPI 579/2004 (unreported), HH Judge H C Wong, 25 October 2004, the defendant operated a tender service by a motorized sampan to ferry people from yachts at anchor at the marina to shore.  The sampan adopted a similar manoevure by positioning its bow against a yacht to allow passengers to cross from the yacht to the sampan without the use of any mooring line. 

120.  Because of the prolonged time taken by the plaintiff, the sampan could not be held in a firm position and started to drift away.  As a result the plaintiff was straddled over a ladder on the yacht and the drifting sampan thereby suffering tears to ligaments in her right knee.  The finding of liability against the defendant was upheld on appeal (CACV 43/2005, 2 November 2005).  

121.  Although the Plaintiff did not sustain injury while crossing from the Pier to the Shuttle Boat or vice versa, the scenario in the case of Keeling (supra) serves to illustrative the obvious risk attendant upon this sort of navigational manoeuvre. 

122.  It is foreseeable that it would be difficult, if not impossible, for the Shuttle Boat to be held in a firm and secured position for a prolonged period (sufficient to safely transfer the 20 odd coils of wires) even with the engine engaged in gear.  Constant adjustment of engine power and the steering would be required.  Even then, there is a real risk that due to the tidal wave and current, the gap between the rubber-tyre fender(s) of the Shuttle Boat and the Pier might open and close from time to time thereby creating a trap for loose wires from the coils.

123.  The system of work should be such that the said risk was guarded against and minimized by:

(a)  ensuring that the wires were properly coiled and secured;

(b)  vigilance in observing the opening and closing of the gap so that the trapping of wire (if any) could be detected in good time; and

(c)  a sailor (or able-bodied person) being deployed at the bow to be prepared to assist in (i) stabilizing the Shuttle Boat (whether with the use of a hook pole or otherwise); (ii) alerting the Plaintiff in the event that a loose wire was trapped; and (iii) releasing the trapped wire.

124.  In the circumstances, I find that the Defendant failed to put in place a safe system of work.  What remains to be considered is the issue of contributory negligence.

125.  Given the Defendant’s denial of the occurrence of the 2^ndAccident and their stance that the Plaintiff strained his back in “a manner unknown to the Defendant”, it is hardly surprising that plea of contributory negligence is devoid of particulars.

126.  That said, in So Chung Kwong v Ho Kuen t/a Brilliant Design and Decoration Co[2000] 3 HKLRD 241, DHCJ Gill said:

“[34] [The plaintiff’s counsel] suggested that the burden being on Brilliant Design [the defendant] to prove his contributory negligence that must fail because Mr Ho [defendant’s witness] did not attend court to call any evidence in support of that. He quoted from Charlesworth and Percy on Negligence (9th ed.) paras.3–12:

Burden of proof by contributory negligence. The burden of proving contributory negligence is on the defendant; it is not for the plaintiff to disprove it. If the defendants’ negligence or breach of duty is established as causing the damage, the onus is on the defendants to establish that the plaintiff’s contributory negligence was a substantial or material co-operating cause. Further, as was explained by du Parcq LJ in Lewis v Denye [1939] 1 KB 540 at p.554:

In order to establish the defence of contributory negligence,the defendant must prove first, that the plaintiff failed to take ‘ordinary care of himself’ or, in other words, such care as a reasonable man would take for his own safety, and, secondly, that his failure to take care was a contributory cause of the accident.

[35] But the same paragraph concludes with the following:

In order to discharge the burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced already on the plaintiff’s behalf or from the primary facts, so found by the court, on a balance of probabilities.

[36] So it is still open to me to find contributory negligence if I find it established or inferred from the plaintiff’s case.”

(emphasis added)

127.  On the finding of facts as aforesaid, I am of the view that the 2^nd Accident is partly attributable to the negligence of the Plaintiff in failing to ensure that the coils were properly secured given the fact that he was trained in rigging and the handling of wires and bearing in mind the evidence of WSP that there was no shortage of time.

128.  It is a matter of common knowledge that a coil of wire has its tensile properties and it may spring open, if not properly coiled up (eg secured by weaving it along the circumference of the coil itself).  This ought to have been known to the Plaintiff.

129.  In his oral evidence, the Plaintiff made an allegation for the first time that at the shop of the Marine Store Dealer in Tsing Yi, he asked WCK whether there was any hook or fastener to secure the coils of wires but was only told to get on with the job.  In this respect, I find the Plaintiff’s evidence incredible.  Such important allegation is nowhere to be found in his successive witness statements.

130.  I am of the view that the Plaintiff failed to take adequate steps to secure (or re-secure) the coils so they were free from any loose ends and not liable to be trapped in the course of manual-handling. The Plaintiff also failed to maintain reasonable vigilance so as to detect in good time the trapping of a wire in the gap between the rubber-tyre fender(s) of the Shuttle Boat and the Pier.

131.  In the premises, I hold the Plaintiff liable for contributory negligence to the extent of 15%.

MEDICAL TREATMENT

132.  In general, the Plaintiff had enjoyed good health prior to the 1^st Accident.  He would engage in sporting activities 2 to 3 times per week such as jogging, basketball, volleyball or badminton when he did not have to work.  However, the Plaintiff had previous experience of muscle plain after a strenuous day of work or vigorous sporting activities.

133.  After the 1^st Accident, the Plaintiff did not seek immediate medical treatment as he did not think much of it.  In his statement given to the Safety Officer of CHEC on 2 September 2015, he described it as muscle inflammation, which he explained in oral evidence that he had previously experienced on occasions.

134.  He applied for leave for the following day in order to take a rest.  He was able to return to work on 23 July 2015.  It was not until 10 August 2015 he felt back pain again and sought treatment from Dr Nixon Chan. In a report from Dr Chan (dated 29 January 2016), it was documented that the Plaintiff gave a history of “back injury while at work” and on examination, the lower back was swollen and tender with decreased range of movement.  He was prescribed pain-killers and anti-inflammatory drugs. 

135.  There is no record of any sick leave granted by Dr Chan but it would appear that the Plaintiff did not attend work on 1st, 4th and 10th to 13th of August 2015 whereas WSP, his brother, did.  Thereafter, the Plaintiff worked for one day on the 15^th (Saturday) and the 2^nd Accident befell him on the 17^th (Monday).

136.  Notwithstanding the 2^nd Accident, the Plaintiff was still able tocomplete the task of conveying all the 20 coils of wires onto the Shuttle Boat.WSP confirmed that the Plaintiff complained about his back pain while they were going off work at Tung Chung at about 4 pm.

137.  In the evening, the Plaintiff’s back pain got worse.  He therefore attended the Accident & Emergency Department of Pok Oi Hospital (A&E, POH) for treatment.  It was documented that he sprained his back while lifting heavy object on that day and he also had a sprained back at work in mid-July.  Straight Leg Raising (“SLR”) Test was full on the right side.  It was 90 degrees on the left, with pain radiating to the back of his thigh.

138.  There was however no numbness in the lower limbs nor sphincter problem, which might otherwise be present if there had been neurological deficit. X-Ray of lumbrosacral spine showed decreased disc space at L5/S1 level.

139.  Thereafter, the Plaintiff attended A&E, POH successively on 20 and 25 August 2015 and 18 September 2015 again for low back pain.  X-ray was done on 20 August 2015, which showed no fracture.  He also attended once on 12 September 2015 but left without waiting for treatment (see Report of Dr Ching Wei Ming (A&E, POH) dated 25 January 2016).

140.  On 28 August 2015, the Plaintiff sought treatment from Dr Chan Tun Kut (Specialist in Orthopaedic & Traumatology).  In a report dated 12 February 2016, Dr T K Chan documented the same history as aforesaid and that the Plaintiff complained of “increased low back pain and started to have left leg and sole numbness and pain since 20/8/2015”.

141.  Upon examination by Dr T K Chan, the Plaintiff complained of low back pain (at the intensity of Visual Analogue Scale 2–3/10 and 8/10 at certain positions) and numbness.  There was left side L5/S1 dermatome numbness and left big toe extension weakness (4 out of 5). SLR Test was positive (showing reduced range of movement) on the left side.  There was tenderness over lumbar spine and left gluteal region.

142.  The Plaintiff was referred to MRI examination on 31 August 2015.  In a report issued by Dr Simon Tang (Radiologist) dated 1 September 2015, it is stated:

  (a)  L4/5 level

“No disc herniation. Facet degeneration hypertrophy noted. No central or foraminal spinal canal stenosis. No cauda equine or focal nerve root compression.” (emphasis added)

 (b)  L5/S1 level

“There is 3 mm disc protrusion which predominates at the left lateral recess. There is caudal dissection of the protruded disc fragment such that there is part of the disc which lies at the left upper lateral recess at S1. The caudal dissection measures about 0.7cm. There is significant posterior displacement and compression on the left S1 nerve root as the result. Evidence of facet degeneration hypertrophy is noted.” (emphasis added)

143.  In passing, it is regrettable that neither the Plaintiff nor the Defendant has sought to obtain or preserve the MRI film so that some unnecessary arguments arising from the interpretation thereof can be avoided altogether.  

144.  The Plaintiff started physiotherapy at POH on 25 August 2015. At initial assessment, the Range of Movement (ROM) of the lumbar spine was full save and except extension (bending backward) was 1/3. After 21 sessions of physiotherapy, it was improved to 2/3 (see Report of Mr Tam Man Piu (Physiotherapist II) dated 2 February 2016.

145.  In a referral letter issued by Dr T K Chan dated 25 September 2015, it is stated that the Plaintiff “is suffering from accidental low back injury with left sciatica.  MRI showed L5/S1 PID [Prolapsed Intervertebral Disc] with left S1 nerve root impingement”.

146.  In due course, the Plaintiff was seen at the Department of Orthopaedic & Traumatology of POH (O&T, POH) on 1 February 2016 upon referral by Dr T K Chan.  Initial assessment demonstrated improved back pain after a course of physiotherapy.  The private MRI (done on 31 August 2015) was reviewed and it showed prolapsed intervertebral disc at L5/S1.  He was last seen on 13 July 2016.  There was residual back pain with no associated neurological deficit of the lower limbs.  The recovery condition was considered static (see Report of Dr Wu Yiu Chung (O&T, POH) dated 29 August 2016).

147.  Between 5 May 2016 and 13 July 2016, the Plaintiff attended occupational therapy at POH with a history of left sciatica with residual back pain after injury. Initial assessment showed mild limitation in the truck range of motion.  Muscle power of the lower limbs was 5/5 (full). He complained of mild to moderate of low back pain (VAS 1-4/10).  His walking and standing tolerance was 10 to 30 minutes respectively.

148.  On 10 May 2016, the Plaintiff demonstrated maximum lifting capacity of 11 kg with complaint of moderate back pain (VAS 5/10).  It was limited by increasing back pain and fatigue.  He could tolerate 7 minutes in simulation of rope pulling but was ranked as below his job requirement for inadequate work capacity.

149.  After sessions of work reconditioning and hardening exercise, his reported standing and walking tolerance improved to 20 minutes and 90 minutes.  Maximum lifting capacity was 15kg with complaint of moderate back pain.  He could tolerate bilateral carrying of 12kg for 15 minutes with short break. He tolerated 15 minutes of simulation of rope pulling.  However, he was still ranked as below his job requirement for inadequate work capacity (see Report of Miss Pang Ka Yee (Occupational Therapist II, POH) dated 19 July 2016.    

150.  On 27 July 2016, the Plaintiff was seen at the Urology Clinic of POH upon referral by O&T POH for nocturia (urination at night).  He reported frequency of urine once every hour with nocturia 4 to 5 times a night.  He experienced urgency of urine but no urge incontinence. He did not have episode of hematuria (blood in urine) or dysuria (painful urination). There was no other abnormality.  He declined to undergo urodynamic studies and preferred to continue observation.  No treatment was prescribed (see Report of Dr Man Chi Wai of Urology Clinic, POH dated 10 January 2017).

151.  On 9 May 2017 and 21 June 2017, the Plaintiff was examined by the Employees’ Compensation (Ordinary Assessment) Board and was assessed to have suffered 5% permanent loss of earning capacity (see Form 7 dated 5 July 2017).

DISABILITY AND IMPAIRMENT

152.  Meanwhile, on 14 July 2016, the Plaintiff was jointly examined by Dr Kong Kam Fu James (Specialist in O&T instructed by the Plaintiff) and Dr Lee Po Chin (Specialist in O&T instructed by the Defendant).

153.  A Joint Medical Report (“1^st JMR”) was issued on 8 November 2016.  A Supplement Joint Report was issued on 24 April 2018 (“2^nd JMR”).  At trial, two lever-arch files of medical literature were provided to the Court.  At the end, only a few was referred to.

154.  In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith LJ in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a)  The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b)  The court has to evaluate the witness and the soundness of his opinion.

(c)  Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d)  The weight to be given to the opinion of an expert depends on:

(1)  the internal consistency and logic of his evidence;

(2)  the care with which he had considered the subject and presented his evidence;

(3)  his precision and accuracy of thought as demonstrated by his answers;

(4)  how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5)  whether or not a witness is biased or lacks independence.

155.  Notably, in the 1^st JMR, Dr Kong (at paras 87 to 89) cited a wide-array of medical texts in support of his opinion on the issue of causation. Upon confirmation (through Mr Clough), the verbatim citations therein are probably extracted from some secondary sources, which Dr Kong cannot now ascertain.

156.  These citations made by Dr Kong are similar in effect but are not the same as those contained in the two volumes of literature materials put before the Court.  Dr Lee did not seek to dispute the findings of the various studies contained in these literature materials.

157.  In oral evidence, Dr Kong mentioned some studies, which showed degeneration of the spine at the rate of 3% to 4% per annum but he was unable to explain details of the relevant studies.  Initially, he could only say that it was based on certain measurements on X-rays but was not able to explain the parameters of the measurements.

158.  Dr Kong’s attention was then drawn to the G Hassett, et al, Risk factors for progression of lumbar spine disc degeneration: The Chingford Study, Arthritis & Rheumatism (2003): 48, pp 3112 – 3117, which Mr Clough had made it known that Dr Kong would seek to rely on (Item 5 in the bundle of literature materials).

159.  With the aid of this paper, Dr Kong was able to explain that the study giving the rate of degeneration at 3% to 4% per annum was in fact derived from measurement of anterior osteophytes and disc space narrowing as shown on serial X-rays taken of patients over a period of 9 years. 

160.  It is not disputed that the presence of “anterior osteophytes” is one of the feature of degeneration of the lumbar spine.  With reference to the X-ray taken at POH on 18 August 2015, Dr Lee detected the presence of “anterior osteophytes”. Dr Kong however said it was “small traction spur” (2^nd JMR, paras 1 and 2).  

161.  When enquired by the Court whether “anterior osteophytes” was the same as “traction spur”, Dr Kong initially said “yes” but somehow sought to retract from this in further examination by Mr Clough.

162.  More importantly, Dr Kong appeared to have accepted that there was at least “small traction spur” shown in the X-Ray (see 2^nd JMR, at para 2).  For some inexplicable reason, Dr Kong said in the same breath (at para 39) that:

“His [X-rays] of lumbar spine only shows narrowed L5/S1, compatible with PID L5/S1. There are no other radiological features of lumbar spondylosis, for instance, traction spurs, osteophytes or Schmori nodes [ie herniation of the disc into the vertebral-body end plate—see Maureen C Jensen MD, et al, Magnetic Resonance Imaging of the Lumbar Spine in People Without Backpain (1994) 331(2), The New England Journal of Medicine, p 69 (at p 71) (Item No 1 in the bundle of medical literature)].” (emphasis added)

163.  In contrast, I find the approach of Dr Lee consistent throughout.  Further, it will become apparent later in the judgment herein that while Dr Lee’s opinion in some minor aspects are not accepted by the Court, it is mainly because of some uncertainties in the medical history or gaps in medical knowledge but not for want of trying on his part.

164.  The Plaintiff’s medical and social history is documented in the 1^st JMR, which is the same as that summarized above.

165.  On examination, it was found that the Plaintiff was generally in good health.  He walked with a normal gait.  Single leg standing on either leg was stable.  He walked with tiptoe unsteadily.  He walked on heels normally.  He squatted fully and rose without support.  There was no obvious deformity or muscle spasm. Normal lumbar lordosis (curvature) was detected.  There was tenderness at the left paralumbar region at L5/S1.  SLR was 80 degree (right) and 70 degree (left).  Waddell’s Signs were negative, which is indicative of the absence of malingering.

166.  Upon neurological examination, motor power of the right lower limb was normal (5/5) but slightly reduced on the left (5−/5), cf  5/5 (full) around the same time as referred to in para. 147 above.  Sensation of right lower limb was normal.  There was reduced sensation in the left lower limb (60 to 70%) at left calf and posterior leg.

167.  Both lower limb reflexes were normal.  There was no significant difference in the measurements of the circumference at both thighs and calves (ie no muscle wasting or imbalance).

168.  Radiological examination taken on 14 July 2016 revealed normal lordosis and minimal pre-existing degenerative changes of lumbar spine.  Reduced L5/S1 disc space.  No other bony lesion.  No other soft tissue swellings or calcification.

169.  On the basis of the history of the two accidents given by the Plaintiff, both Dr Kong and Dr Lee agreed the diagnosis of “Back sprain with left PID L5/S1”.  It was also agreed that despite the degeneration seen on X-Rays and MRI (done on 31 August 2015), the Plaintiff had no pre-existing back symptoms (cf paras. 171 and 173(b) below).

170.  The divergence of opinion between Dr Kong and Dr Lee lies in the following aspects.

(a)  Dr Kong opined that the Plaintiff only had minimal degeneration of the lumbar spine, which was asymptomatic before the 1^st Accident.  He has recovered well after the 1^st Accident.  The 2^nd Accident caused an acute PID manifested in back pain and left sciatica.

(b)  In contrast, Dr Lee opined that the Plaintiff had significant degeneration in the lumbar spine.  He did not recover well from the 1^st Accident.

The back pain radiating to back of left thigh reported after the 2^nd Accident were not sciatica and not a sign of PID, which should have produced pain radiating along the S1 distribution (from the buttock along the lateral side of thigh and leg).

The repeated micro-trauma and macro-trauma to the back are cumulative.  The PID could have occurred spontaneously, or it could follow an injury.  Therefore,the role of injury in prolapsed disc is likely to be the “last straw” effect on an intervertebral disc that is on the verge of herniation.

(c)  With reference to the AMA Guide to the Evaluation of Permanent Impairment (6^th Ed), Dr Kong assessed 5% Permanent Impairment of the Whole Person (“PIWP”) and 5% Loss of Earning Capacity.  Dr Kong recommended that the Plaintiff switch to a sedentary job.

(d)  In contrast, Dr Lee assessed 2% PIWP and 2% Loss of Earning Capacity.  Dr Lee opined that the Plaintiff can return to his pre-accident employment with mild loss of work efficiency.

(e)  Dr Kong was of the view that since the Plaintiff had minimal or negligible pre-existing degeneration of the lumbar back, which was asymptomatic prior to the 1^st Accident, the Plaintiff “was almost certain to have gone through life unaffected by the pre-existing condition” but for the two accidents - ie Category 1 as defined in Chan Kam Hoi v Dragages ET Travaux Publics HCPI 815/1995 (unreported), DHCJ Woolley, 7 March 1997, at para 18, which was not disturbed on appeal (see [1998] 2 HKLRD 958).

(f)  In contrast, Dr Lee opined that the Plaintiff had significant pre-existing degeneration in the lumbar spine as discernible from X-Rays and MRI (as evidenced by the presence of osteophytes and facet joint hypertrophy).

Hence, even if he Plaintiff had not met with the two accidents, his back would develop to the same state of degeneration with similar symptoms in 10 to 12 years’ time (from November 2016) or 7 or 8 years (from April 2018).

(g)  Dr Kong found the sick leave granted by O&T POH up to 13 July 2016 reasonable. Dr Lee opined that since Maximum Medical Improvement was achieved by 26 April 2016, no further sick leave after that day was justified.

171.  As to the pre-existing degeneration of the Plaintiff’s lumbar spine, I prefer the opinion of Dr Lee to that of Dr Kong.  Firstly, it is beyond dispute that certain degree of degeneration was detected on the X‑ray taken at POH on 17 August 2015 and the one taken on 14 July 2016 for the joint examination.  Secondly, the Plaintiff was in fact symptomatic even before the 1^st Accident which he described as occasional “muscle inflammation”.

172.  It is agreed that the MRI (done on 31 August 2015) shows “facet joint hypertrophy” (at L4/5 and L5/S1) although the etiology of the facet joint hypertrophy is in dispute.

(a)  Dr Lee opined that the disc degeneration (at the anterior spinal) would cause segmental instability in the related vertebrae, which was compensated by increased support from the bilateral facet joints (synovial joints at the posterior spine) resulting in increased movement at these joints causing bony hypertrophy. Since it would take time for such hypertrophy to develop, it could be demonstrated that the Plaintiff’s degeneration in the lumbar spine was significant and had been pre-existing for some time.

(b)  Dr Kong did not dispute the mechanism of segmental instability as explained by Dr Lee.  However, he cited Louis Soloman et al, Apley’s System of Orthopaedic & Fractures (9^th ed), at p 482, which gave 7 possible causes of facet joint abnormalities(eg anatomical variation, malposition, synovial thickening, etc—see Item 26 in the bundle of medical literature).

173.  In this regard, I find the opinion of Dr Lee more logical and compelling.

(a)  It is common ground that lumbar degeneration is a continuing process starting from the age of about 20 in every human body.

(b)  Prior to the 1^st Accident, the Plaintiff had already experienced occasional pain, which he described as “muscle inflammation”, although this was not known to Dr Kong and Dr Lee while preparing the two joint reports.

(c)  It is a matter of common sense that features of degeneration would take some time to develop before it is discernable from X‑ray or MRI. 

(d)  Hence, the “facet joint hypertrophy” at L4/L5 and L5/S1 shown in the MRI taken on 31 August 2015 would have started way before the two accidents herein.

(e)  Contrary to the opinion of Dr Kong, anterior osteophytes, which is a feature of degeneration, were already detectable in the X‑ray taken on 18 August 2015 (ie the 2^nd day of the 2^nd Accident).

(f)  Against this background, the other causes for “facet joint hypertrophy” referred to in Apley’s work relied on by Dr Kong are mere possibilities.  It is more likely than not that the “facet joint hypertrophy” found on MRI was a result of segmental disability associated with disc degeneration. 

174.  Dr Lee however queried whether the PID (as shown in the MRI) is the result of an acute trauma in the 1^st or 2^nd Accident or that the PID was pre-existing, albeit without any significant symptoms.

175.  In support, Dr Lee refers to Maureen C Jensen MD, et al.  “Magnetic Resonance Imaging of the Lumbar Spine in People Without Backpain” (1994) 331(2), The New England Journal of Medicine, p 69 (Item No 1 in the bundle of medical literature).  It is observed (at 70) that:

“... 52 percent of people without symptoms had a bulge at at least one intervertebral disk, 27 percent had a protrusion, and 1 percent had an extrusion. Thus, 64 percent of these people without backpain had an intervertebral disk abnormality, and 38 percent had an abnormality at more than one level.” (emphasis added)

176.  Hence, Dr Lee disagreed with Dr Kong that the X-Ray taken at POH on 18 August 2015 show “an acute prolapse with minimal disc degeneration”(2^nd JMR, at para 21).

177.  On the face of it, Dr Lee is correct that the X-Ray is neutral as to the time of onset of the prolapse, which might be pre-existing, albeit asymptomatic.  However, as a matter of clinical practice, one cannot ignore the symptoms as reported by the Plaintiff immediately after a traumatic or sentinel event unless there is valid reason to doubt its veracity. 

178.  Pausing there, it is not disputed that the Plaintiff had tendered his resignation on 30 July 2015 and planned to leave the employment with the Defendant on 29 August 2018.  So did WSP, his brother, since they had been offered better salaries or terms of service by a head contractor doing similar work at the Island.  In so far as it is so suggested, there is really no incentive for the Plaintiff to fake the two accidents.

179.  Dr Lee also doubted whether the entry in the record of A&E POH taken on 27 August 2015 that “pain radiated down to the back of left thigh” meant the Plaintiff had sciatica (see Dr Kong at para 10 of 2^nd JMR cf Dr Lee at para 15). 

180.  On this issue, I am satisfied that this entry is meant to document the Plaintiff’s sciatica since Dr T K Chan, who saw the Plaintiff on 28 August 2015, mentioned this in his referral letter dated 23 September 2015.  It is also consistent with the observation of the Occupational Therapist at POH (see Report of Pang Ka Yee (OT II POH) dated 19 July 2016 referred to in para. 147 above).

181.  In fact, Dr Lee’s “last straw” theory in that the work undertaken by the Plaintiff at the time of the two accidents might have precipitated the back pain in an already degenerated back does not affect the analysis of legal causation.

182.  On balance, I am satisfied that the features of degeneration in the Plaintiff’s back (as shown in the X-Rays and MRI) were pre-existing, although it was relatively asymptomatic and the Plaintiff had only experienced minor pain, which he described as “muscle inflammation”.

183.  Further, I prefer the opinion of Dr Lee that the Plaintiff is likely to develop back pain or symptoms in the future even if the 2 accidents had not happened.  Hence, the Plaintiff is in Category 2 as defined in the case of Chan Kam Hoi (supra).  

184.  However, it does not detract from the fact that the injuries sustained in the 1^st and 2^nd Accidents have exacerbated the pre-existing condition or caused the prolapsed disc in the Plaintiff’s back.

185.  Both Dr Kong and Dr Lee have attempted to apportion the injuries and disabilities between the 1^st and 2^nd Accidents respectively.  Dr Kong attributed 30% to the 1^st Accident and 70% to the 2^nd Accident.  Likewise, Dr Lee attributed 35% to the 1^st Accident and 65% to the 2^nd Accident.

186.  Further Dr Kong opined that the Plaintiff’s prognosis after the 1^st Accident was excellent and was good after the 2^nd Accident whereas Dr Lee opined that the prognosis was good after both accidents but the Plaintiff might be more prone to having back and leg pain in the future (see 2^nd JMR, paras 34 and 35).

QUANTUM OF DAMAGES

Loss of earnings

187.  Dr Lee frankly accepted that the projection of 10 to 12 years (from 2016) or 7 to 8 years (from 2018) is nothing more than the intuition from the perspective of an experienced orthopaedic. 

188.  However, the Plaintiff was already 35 years old at the time of the two accidents.  His pre-existing back condition was already quite discernable from the X-Rays and MRI taken around that time.

189.  On a rough-and-ready approach, assuming that the Plaintiff’s back will deteriorate at the rate of 3% to 4% per annum, it would be over 50% in about 15 years’ time even if it were to start from zero from the time of the 1^st Accident in July 2015.

190.  On a balance of probabilities, I am of the view that even if the two accidents had not happened, the Plaintiff is more likely than not to develop similar symptoms in about 12 years’ time from now.  It has also to be borne in mind that such symptoms can be precipitated by daily activities including participation in vigorous sports.

191.  That said, the Plaintiff has recovered well from the 1^st Accident as he was able to return to work after a short rest notwithstanding the need for consultation with Dr Nixon Chan on 10 August 2015.  Therefore, it is not necessary to apportion damages in the way suggested by Dr Kong and Dr Lee (see paragraph 185 above).

192.  The Defendant produced the Plaintiff’s wage slip for March 2015 but not the corresponding attendance record.  It is put to the Plaintiff that he in fact received sickness allowance even when he was absent from work due to sickness as suggested in the wage slip.  The Plaintiff disagreed and said that although sick leave was mentioned, pay would be deducted for thedays during which he was absent.  The Defendant has adduced no evidence to the contrary. Nothing turns on this since there is no pleaded claim for loss of earning arising from the 1^st Accident.

193.  Further, I am of the view that the Plaintiff has recovered well from the 2^nd Accident, albeit with residual back pain and mild disability.  He may need to make adjustment and avoid heavy work.  The assessment by the Occupational Therapist shows that he can lift up to 15 kg (or 30 lbs). 

194.  Initially, Dr Kong was ignorant of the fact that the Plaintiff had a Grade A (entry level) certificate as an electrician.  He agreed that the Plaintiff can return to work, amongst other jobs, as an electrician with some adjustment.

195.  To some extent, the Plaintiff was trained as a Work Supervisor although he portrayed that his rank of “Assistant Supervisor” was just a paper title and he was no different from a general worker.  However, it does appear that the Plaintiff, like WSP, did exercise some supervisory role at the Island.  Contrary to the Plaintiff’s evidence that he spent most of time doing mooring work, WSP said he spent about over 50% and close to 80% of the time in supervising the work of the barges.

196.  I am satisfied that despite his injuries and disabilities, the Plaintiff would be able to return to work either as an electrician or a work supervisor on construction sites.

197.  It is agreed that his monthly wage was HK$26,524.29 at the time of the two accidents.  In fact, he was paid a monthly salary of HK$22,000 with some overtime allowance.  He normally did not work Sundays.  In effect, his income was roughly HK$26,524.29 ÷ 26 days = HK$1,020.16 per day (see wage slip for March 2015 since the attendance in July and August 2015 was interrupted by the two accidents).

198.  With reference to the Average Daily Wages of Workers engaged in Public Sector Construction Projects (December 2017) published by the Census and Statistics Department, I will assess the Plaintiff’s future loss of earnings on the basis that he would be able to:

(a)  earn about HK$1,000 per day as an Electrician or Work Supervisor (ie less than HK$1,194.60 per day for Electrical Fitter due to his qualification at entry level); and

(b)  work only about 22 days per month taking into account the fact that he may need to take time off to rest from time to time and spend more time to look for jobs.

199.  At a discount rate of 2.5%, the appropriate multiplier for 12 years from now is 10.39 (see Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKLRD 1 and Table 28 of Personal Injury Tables—Hong Kong 2018 (Sweet & Maxwell).

200.  Contrary to the Defendant’s contention, I am of the view that sick leave up to 13 July 2016 (as certified by Dr Wu of O&T, Tuen Mun Hospital) is reasonable.

201.  The quantification of the Pre-trial Loss of Earnings (inclusive of MFP contribution) is as follows:

(a)  1^st Accident (no claim)

(b)  2^nd Accident (18 August 2015 to 13 July 2016)

HK$26,524.29 ÷ 30 × 333 × 1.05 = HK$309,140.60

202.  Accordingly, the claim for Future Loss of Earnings (inclusive of loss of MPF Contribution) is (HK$26,524.29 − HK$1,000 × 22) × 12 × 10.39 × 1.05 = HK$592,292.90.

Loss of earning capacity

203.  A sum of HK$163,944.48 (equivalent to 6 months’ salary) is claimed under this head for disadvantage suffered by the Plaintiff in the labour market.

204.  It is public knowledge that the Bridge will be open soon. According to Leung, the Bridge project has come to an end save and except some touch-up work. Likewise, the numerous infrastructural projects now on going will be completed in due course.

205.  It is well known that the income of construction workers on a daily wage is slightly highly than that of workers employed for similar jobs and paid on a monthly basis. It is likely that if the 2 accidents had not happened, the Plaintiff would engage in jobs based on a daily wage and he would have gaps in between jobs.

206.  In any event, the disadvantage in the labour market suffered by the Plaintiff arising from the injuries he sustained in the two accidents has already been factored into the assessment of Future Loss of Earnings (see paragraph 198(b) above). Therefore, I will not make a separate award under this head.

Pain, suffering and loss of amenities (“PSLA”)

207.  As for PSLA, I accept the assessment of 5% PIWP made by Dr Kong in the 1^st JMR (as opposed to 2% assessed by Dr Lee). 

208.  In general, Dr Kong’s assessment is more in tune with the 5% permanent loss of earning capacity certified in the Form 7 (dated 5 July 2017) although loss of earning capacity, which is a matter for the Court, is not the same at PIWP. 

209.  The assessment of PIWP in accordance with the AMA Guide provides an objective frame of reference and is relevant to the award of PSLA (see per Bharwaney J in Chan Yuet Keung v Harmony (International)Knitting Factory Ltd [2010] 5 HKLRD 599 (at para 62). 

210.  From the surveillance evidence collected on May 2016, the Plaintiff was seen carrying an umbrella when he walked around on the streets.  However, it does not appear that he would need a walking aid for weight bearing.

211.  The Plaintiff does not require any further treatment for his back.  The urological aspect has been investigated as far as possible and it is not relevant for the purpose of quantification of damages herein, there being no sign of neurological deficits.

212.  A sum of HK$300,000 is claimed, which Mr Clough accepts is at the top of the range.  At closing submission, he would accept a lower sum of HK$250,000.

213.  In assessing damages for PSLA, I take into account the awardsmade in the following comparable cases drawn to my attention by Mr Wong.  

(a)  In Shih Pik Nog v G2000 (Apparel) HCPI 832/2009 (unreported), 25 March 2011, DHCJ Burrell indicated that if liability had been established, he would have awarded HK$200,000 to the plaintiff who sustained 5% PIWP for a disc prolapse at L5/S1 and 2% mild psychiatric impairment.

(b)  In Cheng Lung Fong v Mitoyo Hong Kong Ltd HCPI 62/2007 (unreported), 6 May 2010, Andrew Cheung J (as he then was) indicated that he would have awarded HK$150,000 for PSLA for a minor bulging at L5, if liability had been established.

214.  Looking at the Plaintiff’s injuries in the round, I would award PSLA in the sum of HK$200,000, which will be split between the 1^st and 2^nd Accident in the respective sums of HK$50,000 and HK$150,000.

SUMMARY ON QUANTUM

215.  The damages of the Plaintiff’s claims herein are quantified as follows:

1st Accident
(a)  PSLA		HK$      50,000
	Sub-total:	HK$      50,000
2nd Accident
Special damage
(a)  Medical expenses (as agreed)		HK$      20,780
(b)  Pre-trial loss of earnings
(inclusive of MPF contribution)		HK$    309,140.60
General damage
(c)  Future loss of earnings
(inclusive of MPF Contribution		HK$    592,292.90
(d)  Loss of earning capacity HK$ 0.00		HK$    0.00
(e)  PSLA		HK$    150,000
	Sub-total:	HK$ 1,072,213.50

DISPOSITION

216.  There will be judgment for the Plaintiff in the sum of HK$661,381.48 (ie HK$50,000 + (HK$1,072,213.50 × 85%) less HK$300,000 of Employees Compensation) together with interest on special damage at 4% (½ judgment rate) from date of the 2^nd Accident and 2% on PSLA from date of writ.

217.  Taking into account the complexity of the case, which involved two accidents, and the less than satisfactory conduct on the part of the Defendant, I make an order nisi that the Defendant do pay the Plaintiff’s costs of the action, to be taxed on the High Court scale, if not agreed, and the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.