LAI KEUNG v. JETWELL ENGINEERING CO AND OTHERS

HCPI 834/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 834 OF 2003

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J U D G M E N T

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Introduction

1.  This is an action for damages for personal injury and other consequential loss sustained by the Plaintiff on 8 August 2000 in the course of his employment as an air conditioning plant insulation worker.

2.  On the day in question, he was directed to wrap insulating material around the air-ducts of a ventilation unit inside the ventilation room at Seibu Department Store in Pacific Place, Hong Kong.  In order to do so he had to climb on top of the ventilation unit to get access to the air-ducts.  The ventilation unit was 1.5 metres high.  Nobody who has given evidence saw how the Plaintiff was injured and due to the nature of the injury to his head, the Plaintiff is unable to remember and provide a coherent account of what happened to him.  He was found on the ground unconscious, bleeding and with head injuries.  A loud shout from a Mr Fung, a co-worker who was with the Plaintiff in the ventilation room at the time, but who has not being called to give evidence, was the first sign that the Plaintiff had been injured, and caused a number of people who were nearby to rush into the room to find the Plaintiff lying on the ground.  It is submitted on his behalf that he must have somehow lost his footing, or tripped and overbalanced which caused him to fall off the top of the unit onto the ground below.  The edges of the unit were not fenced nor was there available to him secure anchor points to which he could attach a safety line to prevent him from falling.  The evidence is that when he was found he was wearing a safety belt which he says was his habit and a safety helmet was on the ground nearby. 

3.  The particulars of negligence plead a variety of allegations [Bundle 1/8] the essential one’s being that there had been a failure to provide guard rails, safety belt anchor points, a safety net, a safe ladder or working platform which in the result amounted to a failure to provide a safe place of work and to maintain a safe and proper system of work.  There is also a plea of a breach of the common duty of care under the Occupier Liability Ordinance.

4.  The quantum of damages claimed is substantial due to the serious nature of the head injury which has affected the Plaintiff’s personality as well as his physical capacity to work.  He has been unemployed since the date of the accident and there is a continuing claim for loss of earnings.  Quantum in particular has been sharply contested with the Defendants’ medical experts, as well as the jointly-instructed clinical psychologist Professor Peter Lee of Hong Kong University suggesting that the Plaintiff has been guilty of a great deal of exaggeration of his symptoms.  I must attend to all of this in some detail presently.

The Parties

5.  In respect of liability, apart from proof of negligence, the issue of which, if any, of the Defendants was the Plaintiff’s direct employer is in dispute.  The 3rd Defendant was the principal contractor for the air-conditioning project at Seibu.  It in turn engaged the 1st Defendant as its nominated air-conditioning sub-contractor.  The 1st Defendant in turn engaged the 2nd Defendant to carry out the insulation work in the ventilation room and it was the 2nd Defendant who brought the Plaintiff to work on the site.  The 1st Defendant says that he did not employ the Plaintiff and that he was employed by his sub-contractor, the 2nd Defendant.  For his part, the 2nd Defendant says that he and his workers were employed by the 1st Defendant who would give him the wages to pass on to the individual workman such as the Plaintiff.  The 4th Defendant is the 1st Defendant’s insurer.  It has repudiated liability under the policy, by which it insured the 1st Defendant for such accidents, on the ground that the 1st Defendant had failed to give it notice of the claim within the required two-year period under the policy but it has been allowed to be joined as a Defendant given its statutory liability to indemnify any employee of the 1st Defendant.  The Plaintiff’s case as advanced by Mr Ashok Sakhrani is that he was the employee of the 1st Defendant as the principal contractor’s main sub-contractor under the contract which, if that were to prove right, would have the advantage for the Plaintiff of being able to look to the 4th Defendant’s deep pockets, as insurer, to satisfy any damages that he might be awarded.  The 3rd Defendant as the principal contractor attracts liability for negligence and occupiers’ liability as the company in overall charge of the project.  At the start of the litigation, it was the 3rd Defendant, through its solicitors, that was principally engaged in defending the action and in that capacity instructed the defence medical experts who have expressed the view that the Plaintiff is exaggerating symptoms and malingering.  The 3rd Defendant also instructed a private investigation company to secretly film the Plaintiff going about his daily activities, its medical reports and the surveillance report and video have been taken into evidence in the trial.  Subsequently, its solicitors have ceased to act for it and at the trial it did not appear and was not represented.

Liability

6.  I propose to begin by discussing the circumstances of the accident as best as can be discerned from the overall circumstances of the case in a situation where nobody can give direct evidence of it.  The Plaintiff has no relevant recollection and Mr Fung the eye-witness who apparently was so alarmed that he shouted out when it happened has not been called.  The starting point is the instruction to the Plaintiff by the 2nd defendant to carry out the insulation of the air-ducts which required him to climb a ladder and get on top of the ventilation unit itself.  Once up there he had to wrap the insulating material around the air-ducts.  At B1/260-274 is a series of photographs which show the ventilation room and the insulated parts of the air-conditioning unit.  At page 270 is a helpful photograph which shows the edge of a ventilation unit onto which, it is suggested, that the Plaintiff had to climb onto in order to have access to the air-ducts which needed insulating.  The full height of 1.5 metres is also well depicted.  Mr Sakhrani draws attention to the fact that the edges of the unit are not fenced to prevent a fall.  Page 267 shows the air-ducts on top of the ventilation unit as does page 262 which shows just how close to the edge of the unit the ducts were positioned.  Page 263 shows the hard floor onto which, it is said, that the Plaintiff fell.

7.  In respect to the accident Mr Sadhwani, on the 4th Defendant’s behalf, has submitted very strongly that without direct evidence of how the accident happened the Plaintiff’s case cannot even begin to get off the ground.  Mr Sakhrani points to the Plaintiff’s evidence, as best as he could give it, that he remembered standing on racks but that he could not remember if he had to do that on this particular day.  The Plaintiff also said that he could not remember what happened just before the fall.  The 1st Defendant said that when he entered the room, the Plaintiff was sitting up against the ventilation unit and did not appear to be seriously injured.  From these sparse facts, Mr Sadhwani submits that I am in no position to know how the Plaintiff sustained his injuries.  There is simply no evidence of the mechanism of the accident.  It is not possible to say how or why the Plaintiff was injured.  Mr Sadhwani submits that it has not been proved that:

(i)  the Plaintiff had been standing on top of the ventilation unit,

(ii)    that he fell off the unit and/or

(iii)  that he fell due to the acts or omissions of any one or all three of the Defendants and yet it is against this paucity of evidence that a claim of over $5,000,000 is being mounted against the Defendants.

8.  Mr Sakhrani submits that all the court can do is to start at the end and work backwards.  One has the Plaintiff lying on the ground unconscious or, on another version, propped up against the ventilation unit bleeding from the head, as the 1st Defendant has described.  From this, the court is then invited to plot backwards, by means of a re-wind of the course of events, and to conclude that on a balance of probabilities the Plaintiff had been standing on top of the ventilation unit doing his work when he tripped or somehow lost his balance and fell to the floor below.  To get to the top of the unit, he had to climb up a ladder and it is equally possible that he fell off the ladder or just tripped whilst still on the ground and hit his head on the floor as he fell.

9.  In order to begin its task, the court is required to arrive at a firm conclusion of how the accident happened.  In the absence of direct evidence, I am left with drawing inferences from the fact that the Plaintiff was instructed to do the insulation work and that this required him to get onto the ventilation unit and that Mr Fung, who was with him, shouted out and that the Plaintiff was found on the ground below the ventilation unit with head injuries.  As to the drawing of inferences, Mr Sadhwani Sakhrani has referred me to Hilbery J’s remarks in the case of Brundell v Vianda SS Co. [1952] Lloyds Rep 277.  The facts of that case are far removed from the allegations that are made on the Plaintiff’s behalf in this case, but in order to understand what Hilbery J said I should briefly relate the Plaintiff’s case as described by his leading counsel and how the issue arose for the judge’s consideration [p.277]:

“Sir Godfrey Russell Vick, for the plaintiff, said that on July 29, 1950, the Scheldt, a vessel of 520 tons gross which plied between London and Antwerp, was lying at Antwerp preparing to put to sea and the derricks had to be lowered.  The plaintiff was at the bollards around which was wound the wire rope holding up the derrick.  He started to uncoil the wire and then, suddenly, the derrick took charge of the rope.  The plaintiff had not the strength in his hands to hold the rope.  He was thrown off his balance and his left foot was caught in the rope and he was dragged across the deck.

The plaintiff gave evidence and was cross-examined, and without calling further evidence, Mr Richard Vick closed the plaintiff’s case.

Answering his Lordship, Mr Vick submitted that the plaintiff had made out a primia facie case to go to the jury.

Mr. Justice Hilbery:  Where is the evidence that any act or omission on the part of the defendants or their servants, constituting negligence, was the cause of the accident?  The plaintiff has said that he assumed there must have been a kink in the rope between him and the bollards, causing the rope to slacken and making him lose his balance.  But that is only a theory.

Mr. Vick submitted that it was for the jury to decide whether the plaintiff’s assumption was correct.

Mr. Berryman submitted that there was no case for the defendants to answer.”

Having reviewed the evidence and the issues, Hilbery J said this at p.280 which conclusion Mr Sadhwani invites me to adopt:

“He does not tell me anything except that he assumes that that must have happened.  It cannot be said that that is a reasonable inference to be drawn.  There is no established fact from which that would be an inference.  An inference is a deduction from an established fact, and an assumption or a guess is something quite different, but no necessarily related to any established fact.  There is no established fact here that there was anything wrong with that wire rope at that point in the way of a kink in the rope such as the plaintiff assumes might have caused the accident.  It is absurd to say that such must have been the cause of the accident.

There are several other things which might have caused it …”

I suppose it might be said that in that case, there was at least direct evidence of the circumstances of the accident from the Plaintiff himself who could describe what it was he was doing when things went wrong and he was injured whereas, in the present case that sort of evidence is not available to me.

10.  I have considered Mr Sadhwani’s submissions on the evidence as to the accident first because this serves to identify the task which confronts Mr Sakhrani in providing a sensible account based on the evidence in circumstances that the only person who has given evidence and who could have described what happened was the Plaintiff.  Before I deal with what he has been able to say, I should observe that the 2nd Defendant elected not to give evidence in this case and so his witness statement is not before me.  In any event what he did say in his witness statement would not have assisted had he given evidence in accordance with it because all he could have said was that he had instructed the Plaintiff to do the insulation work on top of the ventilation unit.  He had not witnessed the accident.  The 2n defendant did give a statement to the insurance company loss adjuster.  That statement has gone into evidence and so it does stand as evidence in the case [B1/288-291].  At p.289, the 2nd Defendant provides an account as to the circumstances of the accident which it seems to me constitutes evidence of the truth of what he said as opposed to merely evidence of what he said because this statement has gone into evidence with all the other documents in the two bundles before me as prima facie evidence attesting to the truth of their contents subject to any clarification by any witness who can give direct evidence about any document or cross-examination as to its contents.  In this instance, the taker of the statement has not been called, this is because it is agreed that his record of his interview with the 2nd Defendant is an accurate one.  The 2nd Defendant’s account was that on 8 August at 3 p.m., he was working at the entrance of the ventilation room and that the Plaintiff and Mr Fung were working in the room.  He said that:

“(He) knew that Fung Sai Kwong was squatting down between the air-pipes and the headroom so as to wrap the fibre glass wool while [the Plaintiff] was wrapping the fibre glass by standing on top of the [ventilation unit].  While outside the room, I heard Fung Sai Kwong shouting suddenly.  I immediately went into the room and saw [the Plaintiff] lying unconscious between 2 [ventilation units].  I tapped him and he came round.  I helped him to sit on the floor.”

As I say this is the 2nd Defendant’s statement to the loss adjuster.  The impression that I get from these statements is that everybody has proceeded on the basis that the Plaintiff did go onto the top of the ventilation unit to do as he had been instructed but without anybody having actually seen him do so.  It is right to say that the 2nd Defendant told the loss adjuster that the Plaintiff “was wrapping fibre glass wool by standing on top of the [ventilation unit].”  He was further questioned by the loss adjuster and this proceeded on the basis that the Plaintiff was on top of the unit.  The question and answer was as follows [p.290]:

Q.   Was the [ventilation unit] damaged?

A.    [The ventilation unit] where [the Plaintiff] stood on was newly installed about two weeks ago without any damage.  [There is then a description of its dimensions after which the answer continues]  There was a wooden ladder for [the Plain tiff] to climb up the air-conditioning unit.

Later the questioning continued as follows:

Q.   Do you know why [the Plaintiff] fell from the [ventilation unit].

A.    No.  I asked Fung Sai Kwong about that afterwards, he said that he was working and therefore did not know why [the Plaintiff] fell from the [ventilation unit] ….

11.  As to the 1st Defendant, who did give evidence, he also did not see the accident.  He told me that when he heard the scream, he rushed in and saw the Plaintiff on the ground propped up against the unit.  Most of his evidence was directed to the issue of who was the direct employer of the Plaintiff and not to the circumstances of the accident.  He also signed a minute of a meeting at which the accident was discussed [Bundle 1/293-294].  At the foot of p.293, the minute records this:

“[the Plaintiff] was working on top of the [ventilation unit] … The ladder on the ground was only for the workers going up and down.  Suddenly we heard from people that [the Plaintiff] fell on the ground, however, nobody knows how he fell on the ground.”

This minute was jointly confirmed by him and by the 2nd Defendant as well as two other persons.  Mr Wong also gave two witness statements which he adopted as part of his evidence before me.  The first at p.162 says nothing about how the Plaintiff was injured.  He only relates the aftermath of finding the Plaintiff on the ground.  The second at p.169, para.7 says that the Plaintiff was wearing a safety helmet and standing on a big flat ventilation unit, but it is clear from the context and the tenor of the statement that this is all based on what he heard from other people and did not see this himself.

12.  The interested persons such as the 1st and 2nd Defendants had gathered at a seafood restaurant to discuss what had happened which they recorded [pages 293-294 supra].  The simple fact of the matter is that everybody concerned discussed the accident on the basis that the Plaintiff had fallen off the top of the ventilation unit and yet not one witness has been able to come along to court and give evidence that this is what actually happened and how it happened.

13.  The Plaintiff himself in his evidence says he cannot remember how the accident happened [B1/168, para.14].  He does say he was standing on top of the ventilation unit, para.15.  He says that Mr Fung was squatting on the ground doing some other work and borrowing, as it were, what Mr Fung might have said had he been called to give evidence, the Plaintiff’s statement goes on as follows:

“Suddenly he saw me lying prostrate on the ground.  He screamed and asked people outside … including the 2nd Defendant to come and assist.”

In his evidence in chief he was unable to provide any coherent account of the accident.

Conclusions on This Part of the Evidence

14.  As the trial proceeded, the issues that occupied the court’s time did not relate very much at all to the crucially important and primary matter of how this accident occurred.  The contest largely centred on the issue of who was the Plaintiff’s direct employer and on the medical issues.  In his closing speech, Mr Sakhrani has almost taken it for granted that the evidence will have disclosed to the court’s complete satisfaction that the Plaintiff did what he was told and climbed up onto the ventilation unit from where, unattached by a safety line to an anchor point, because there was none, and also because there was no fencing or other safety devices he fell and injured his head on the ground below.

15.  But now that I have had to analyse the evidence as it is, the 2nd Defendant having decided not to give evidence which might have thrown more light on whether the Plaintiff had got to the top of the ventilation unit, as the 2nd Defendant appears to have told the loss adjuster, I find this a very difficult issue to resolve.  The simple fact is that there is no direct, coherent account of what happened to the Plaintiff and this is through no fault of the Plaintiff who as a result of his injuries is unable to say why or how the accident has come about.  There is no doubt that Mr Sakhrani bears the burden of showing how the accident happened and he cannot do so based on the assumption which everybody seems to have arrived at that the Plaintiff was on top of the ventilation unit and that he fell off it.  Now that Mr Sadhwani has taken the point this becomes a very real obstacle which needs to be overcome.  The only “evidence”, and I have deliberately put this in inverted commas, is the 1st and 2nd Defendants’ statements to the loss adjuster and the minute [B1/293] at the seafood restaurant of the interested parties discussion of the accident.  Not one of them was in the ventilation room so there is no way by which I can gauge how they came about their knowledge that the Plaintiff had arrived on top of the unit and was working there when he fell off it.  If the Plaintiff cannot tell me because of his head injury, Mr Fung who was there certainly could have but he has not been called and I do not even have a witness statement by him nor one to the loss adjuster or anything of that sort to put into the evidential scales.

16.  This case has pointed up the importance of attending to the evidence as it has emerged in its giving in the course of the trial and, to its proper analysis.  Much to my regret, I do not consider that the Plaintiff has been able to provide evidence of the required clarity and quality to persuade me that the accident happened as Mr Sakhrani would wish me to find.  I have not heard from anybody that the Plaintiff had made it to the top of the ventilation unit and therefore that he must have fallen off it.  This is the minimum requirement that needed to be proved.  On the present evidence such a finding by me would have amounted to a victory for assumption and speculation over direct evidence or logical inference drawn from proven primary facts.  All I have is evidence, which I accept, that the Plaintiff had been tasked to get on top of the ventilation unit and that sometime after he entered the ventilation room with his co-worker to carry out insulation work on the air-ducts on top of the unit, Mr Fung his co-worker shouted out and that the other witnesses ran in to see what had happened to the unfortunate Plaintiff who was on the ground bleeding and unconscious.  Much as I would have liked to have concluded that he fell off the top of the unit, the state of the evidence does not permit me to arrive at that conclusion.  For one thing, I was not told how long the Plaintiff had been in the room before Mr Fung had shouted out.  Had it been some time then it might have been possible perhaps to draw some comfort from that fact and conclude that he must by then have got to the top of the unit and was working there.  There simply is no evidence about how long he was in the room.  Secondly, one needs to properly evaluate the assumption that all those outside the room have made that the Plaintiff had been working on top of the unit.  At best, this has been arrived at on the basis of what Mr Fung had, I assume, told those who rushed into the room on hearing him shout.  Nevertheless, there is nothing from Mr Fung and no explanation why the most important witness has not given evidence nor given a statement to the loss adjuster or to one of the parties’ solicitors.  The fact is that the fall and consequent injury could have happened in other ways including as the Plaintiff was climbing the ladder to get to the top of the unit he fell off it and was injured or even that he tripped whilst still on the ground and hit his head.

17.  The failure in the Plaintiff’s case to get beyond an assumption that he fell off the unit is, I very much regret, fatal to the claim.  Even if it is to be improved on by elevating it to an inference to be drawn from all the circumstances that he must have fallen from the top of the ventilation unit, I do not believe that it is possible to say that this is the only inference that can be drawn from the very sparse evidence that is available as I have sought to demonstrate.  Without such a finding, as Mr Sadhwani puts it in a very literal way, the Plaintiff’s case does not get off the ground.

18.  I have to say that had I been able to find as a fact that he had been working on the top of the unit when he fell from it, I would have had no difficulty in finding that negligence and breach of the common duty of care had been made out.  The least that could be expected is that safe anchorage points were made available, although this also is a finding that is barely open to me on the evidence because nobody has bothered to inspect the top of the ventilation unit and provide a description of the conditions up there.  Nevertheless, I would have been prepared to make a finding that there were none based on the numerous photographs of the site where anchor points are not apparent.  This being said, there are stronger grounds for finding negligence based on the lack of any evidence of a risk assessment carried out by any of the Defendants and the lack of fencing around the edges of the unit nor the provision of a moveable scaffold or working platform from which work at the edges of the ventilation unit could have been safely carried out.  It really is asking too much of a workman to work 1.5 metres from the ground without those fairly basic precautions in place.  In respect of the employer, the words of Bokhary PJ in Cathay Pacific Airways Ltd v Wong Sau Lai [2006] 9 HKCFAR 72 are apt, that an employer was required:

“to take reasonable steps to provide a system which will be reasonably safe having regard to the dangers necessarily inherent in the operation.”

19.  This Plaintiff has on any view suffered very bad injuries which makes it particularly unfortunate that through no fault of his, the evidence led on his behalf has not been sufficient to prove negligence or any other means of establishing liability against any of these Defendants.  Once it is not shown on the evidence taken as a whole that the Plaintiff was on top of the ventilation unit and that he fell from there in doing the work that he had been instructed to carry out, the action lacks the basic element from which everything else might have followed.  Accordingly, I propose to dismiss the claim and enter judgment in favour of the Defendants.

In the Event of An Appeal

20.  I will now go through the issues that I would have had to decide had I not ruled against the Plaintiff on the question of proof of negligence.  In the event of an appeal, the Court of Appeal will therefore know how I would have disposed of these issues so that if the appeal is allowed, there will not be a need to remit the matter back for a further judgment on these issues.

Who Employed the Plaintiff

21.  There are only two candidates.  It was either the 1st Defendant or the 2nd Defendant.  As the 2nd Defendant has not given evidence, which would have been that it was the 1st Defendant who was the employer, I have nothing from him on oath to consider.  As for the Plaintiff, he has been as helpful as he can.  This case like so many of its type shows up the uncertainty for a workman like the Plaintiff as to who actually is his employer, if he be employed at all, as opposed to being an independent contractor working at the site on his own account.  This is the result of the profusion of sub-contractors and those downstream of them.

22.  What I get from the evidence of the 1st Defendant is that although he had been awarded what was a substantial contract from the 3rd Defendant, who was the principal contractor, he operated his business with a very small core of permanent staff.  Whenever a contract that he obtained required labour, which such contracts inevitably always did, he would look to persons such as the 2nd Defendant, who have the contacts amongst skilled workers such as the Plaintiff, to come in as his sub-contractor and carry out the contracted work.  He, as the sub-contractor above the 2nd Defendant, would be responsible to the principal contractor who had awarded him the contract and he would see to it that his sub-contractor, in this instance the 2nd Defendant, carried out the work for him.  He would indicate the work that needed to be done and the 2nd Defendant would see to it that it was carried out.  The principal contractor would pay the 1st defendant and he in turn would pay his sub-contractor who would distribute the wages to his workmen.

23.  There was a previous working relationship between the Plaintiff and the 2nd Defendant who had put work his way whenever he needed an insulation worker, which is what happened on this occasion.  The 2nd Defendant had introduced the Plaintiff to this site.

24.  The evidence has persuaded me that there was a relationship of employer and employee between the 2nd Defendant and the Plaintiff.  The Plaintiff had become a member of the 2nd Defendant’s team of workmen to carry out the insulation work sub-contracted by the 1st Defendant to the 2nd Defendant.  A point has been made that the wages were paid by the 1st Defendant which would therefore indicate that he was the Plaintiff’s employer but I do not think this is the correct analysis.  No doubt the source of the wages was the 1st defendant because it was he who paid his sub-contractor, the 2nd Defendant, but it was the 2nd Defendant who would then distribute the wages to his workman such as the Plaintiff.  The 2nd Defendant gave his instructions to his individual workmen — it was not the 1st Defendant who did that.  The 1st Defendant’s point of contact was the 2nd Defendant to discuss what needed to be done under their sub-contract and the 2nd Defendant and his workman would do the work on the 2nd Defendant’s direction.  And so, I find that the Plaintiff’s employer was the 2nd Defendant and not the 1st Defendant.

Liability of the Three Defendants

25.  Had I found negligence I would have been required to consider the case of each Defendant separately to decide whether and in what way that finding of negligence could be attributed to a particular defendant.

26.  I take the 3rd Defendant first as the principal contractor.  Its duties are clear which was to ensure the overall safety of the site and to provide a safe system of work.  Given the nature of the shortcomings in the ventilation room and the ventilation unit in particular with its lack of anchor points, fencing and/or working platform or scaffold, I would have been disposed to find negligence and a breach of the common duty of care against the principal contractor as occupier of the site as a whole.

27.  As against the 1st Defendant, as the sub-contractor for these works, undoubtedly he was a concurrent occupier, certainly of the ventilation room, and as such would have been in breach of the common duty of care in the respects which I have identified in the previous paragraph.  It is not good enough for the 1st Defendant to suggest that he had delegated his duties to a competent sub-contractor in these circumstances.  His was a continuing occupation of the ventilation room whilst these works were going on and it is expected of him that the premises would have been made and kept safe by him having regard to the nature of the work that was going on there.  Accordingly, judgment would have been entered against him as well.

28.  As to the 2nd Defendant as an employer of the Plaintiff, he would bear the greatest responsibility to ensure that the Plaintiff was working in a reasonably safe environment.  All the allegations of negligence that have been pleaded on the Plaintiff’s behalf would have been made out and the remarks of Bokhary PJ in the Cathay Pacific case supra not only state the duty of the 2nd Defendant but their very recital is sufficient to identify what would have been proved, had the evidence supported a scenario of the Plaintiff falling off the ventilation unit, that no precautions whatsoever had been taken to ensure the Plaintiff’s reasonable safety.  In his case too judgment would have been entered.

Contributory Negligence

29.  Where the Plaintiff had been inserted into this inherently unsafe situation and had been doing his best to get on with things as well as he could, there would have been no basis for saying that he had contributed to such an accident.

Quantum

30.  This part of the evidence has occupied most of the trial and is the most contentious.  The medical evidence is voluminous and opinions are diametrically opposed notwithstanding which, the Master directed that none of the medical experts should give evidence.  Accordingly, I have had to steer through this conflicting evidence and arrive at a view about the extent of the Plaintiff’s head injury and its consequences.

31.  The extent of the dispute is to be seen from the fact that the quantum of the Plaintiff’s claim is $5,231,685 less $110,000 pre-payments made to him.  The Defendants say that his proper compensation should be $395,970.80 with virtually nothing for loss of earnings.

32.  A general overview may be helpful.  The Plaintiff’s head injury resulted in concussion with no loss of consciousness (although there is evidence from the witnesses that he was briefly unconscious when they found him), a traumatic subarachnoid haemorrhage and bilateral temporal lobe contusion.  He was discharged from hospital on 22 August 2000 which was 14 days after the accident.  He was diagnosed as having post-concussion syndrome and he complained of poor memory.  The occupational therapist assessed him on 20 September 2000 and scored him as 29/30 on MMSE and 6/24 on RBMT, which showed that he had an impaired memory.  He was given cognitive remedial training.

33.  On 6 December 2001 [16 months on] he attended Castle Peak Hospital for poor memory and an inability to maintain an erection.  He also told the doctor he had frequent headache, dizziness, low mood and fatigue.  The psychiatrist, Dr Tsang, diagnosed mild depression and reported that the Plaintiff was worried about being forgetful.  His speech was coherent and relevant and his affect appropriate.  He was well orientated as to time, place and person.  He did not perform well on short-term memory tests but his long-term memory was intact.  Dr Tsang concluded that he had post-concussion syndrome with cognitive impairment, mixed anxiety and depressive syndromes and erectile dysfunction.  He was put on psychotherapy and medication and his problems with his erection was improved with appropriate medication.

34.  In view of what was to follow as the litigation proceeded when the Plaintiff was seen by experts instructed on both sides which resulted in conflicting opinions, Mr Sakhrani has adopted, as a reasonable median for the Plaintiff’s situation. Mr Tsang’s reports in May and June 2002 by which time most of the Plaintiff’s improvement would have been achieved.  This nearly two years after he was injured [see B2/413-417].  What Mr Sakhrani suggests is that when one looks at the reports in 2005 and up to 2007, there has not been much of an improvement since then and it is these reports by Dr Tsang that may be used by me as a basis for my assessment although taking into account some further improvement.  The later adverse reports speak of deliberate under-performance in tests designed to make his situation appear worse than it actually was.  I will return to this aspect presently because it needs to be discussed and because the Plaintiff has admitted in the witness box in his evidence in chief that he did exaggerate his disability because he feared that the doctors would not sufficiently reflect how badly he was fairing unless he exaggerated his symptoms. 

35.  Returning to Dr Tsang’s reports which need to be read in full, Dr Tsang concluded at the foot of page 416 that he considered the overall disability to be marked and the impairment of working capacity to be moderate to marked.  He concluded as follows:

“The impairment of cognitive function, which has been persisting for more than 1½ years and it is likely to be permanent in nature.  Upon treatment provided by this Centre, it is expected that there might be some improvement in his mood, motivation and confidence.  Hence there might be some improvement in the activity of daily living.  However, the cognitive impairment remained as one of the most important factor that affect the progress of his situation.”

36.  On 8 June 2002, Dr Tsang provided a further report for the Director of Legal Aid [418-422].  It is that report, which forms the high point of Mr Sakhrani’s argument on the quantum of damages that he proposes,  I will set out here what Dr Tsang said in respect of the degree of permanent disability for the Plaintiff [422]:

“On the date of reporting, the overall disability is considered to be marked.  The impairment in his working capacity is also considered to be moderate to marked.

The impairment of cognitive function, which has been persisting for more than 1½ years and it is likely to be permanent in nature.

Upon treatment provided by this Centre, it is expected that there might be gradual improvement in his mood, motivation and confidence.  His erectile problem might be remedied by regular use of VIAGRA.  There might be gradual improvement in the activity of daily living.  Yet the cognitive impairment is the main determinant that affects the progress of his situation.

Upon treatment, his impairment in activities of daily living might changed from moderate to mild-to-moderate.  He might be able to lead an independent life with the continuous support and supervision by his wife.

Regarding his working ability, his ability to remember procedures related to work and to understand simple instruction is retained.  However, due to impairment in attention, concentration and short-term memory, he might not be able to carry out instructions.  Particularly, the impairment in short-term memory made him very difficult to follow changes in work setting and make him unable to learn new tasks.

In mental disorders, there is no precise measures of impairment and there is no available convincing evidence supports any method for assigning a percentage of impairment of the whole person.  Percentage provided in this report is just a rough estimation based on clinical impression and experience and should not imply a certainty that does not exist.  According to such principle, the permanent impairment of the whole person is estimated to be 45% while the permanent working disability is 90%.  Effect of treatment and rehabilitation is taken into consideration while doing the estimate.

He needs further outpatient psychiatric follow-up at this Centre at 2-4 weeks intervals.  He might need regular antidepressant medications, namely, Venlafaxine dose and regime to be adjusted from time to time according to his mental condition, for at least 12-18 months.

For the erectile dysfunction, he needs VIAGRA tablet; dosage might need adjustment from time to time on needed basis.  Judgment from his past sexual activities, he might need 1-3 tables of VIAGRA a week.  Further psychological treatment from this Centre might bring better satisfaction to his sexual like.”

37.  Despite being eight years old now, I have found this report of great value coming as it does from an expert who is not affected by the process of litigation in expressing his views.

38.  Since then the experts for each party have formed their views which are there to be read including a 77-page joint psychiatric report from Dr Chan and Dr Lai dated 14 September 2005.  They both agree that the Plaintiff’s condition would have been static and stable by two years from the injury — by August 2002 — so that Dr Tsang’s report of June 2002 assumes considerable importance and should be accorded much respect.

39.  Dr Chan was of the view that the Plaintiff’s symptoms were of moderate severity.  Dr Lai considered the Plaintiff had been guilty of gross exaggeration and that if his symptoms were real, which they were not, he would have been a person suffering from a severe degree of dementia which he was not.  Dr Chan assessed a 29% degree of impairment and Dr Lai 1-14%.

40.  If there is a low point to the Plaintiff’s case on expert evidence, it comes from Professor Lee, a highly respected clinician and academic psychologist from Hong Kong University.  He was jointly instructed.  To do his report justice one of course needs to read all of its 30 pages.  He is prepared to convict the Plaintiff of gross exaggeration and concludes thus:

“95. Notwithstanding his mild residual cognitive and memory difficulties, on the basis of the normally expected clinical course, as well as on consideration of Mr. Lai’s demonstrated self management skills and competence in managing his daily life, I feel that on psychological and cognitive/memory grounds alone, he should be able to take on open employment especially in jobs which call on his previous well learnt skills (which should only be rusted due to disuse but not lost despite his head injury).  He may, however, require an initial period of several months of adaptation before he could fully cope with the full time job requirement given the long years of sick leave he has enjoyed.”

41.  It is this which substantially informs the Defendant’s case that there is no reason why the Plaintiff should not be back at work.

42.  There are also the surveillance tapes.  I am in just as good a position as anybody else to assess these.  I have also had the advantage of seeing the Plaintiff give evidence for over two days as I have seen his admirable wife on whom he has been so dependant.

My Conclusions

43.  There is no doubt that the Plaintiff has been grossly playing up his symptoms which he admits.  That frank admission in the witness box can only go so far in rehabilitating his credibility.  I need to pay considerable attention to the fact that he had exaggerated his position with the various doctors who tested him and to treat his evidence with reserve.

44.  His wife on the other hand, I have found to be a most compelling witness and in saying so I have not discounted the fact that she has a very real interest to serve.  They are a close and loving couple and she has been highly supportive of him for these past 10 years.

45.  Substantially, I am prepared to accept Dr Tsang’s diagnosis, albeit now eight years old.  This I find a reliable basis for assessment subject to some improvement in the Plaintiff’s condition over time and having regarded to the exaggeration by the Plaintiff.

46.  The surveillance tapes show that in 2005 the Plaintiff was reasonably engaged with his surroundings and could relate to people perfectly well although I did detect a certain “dullness” about him.  He was rather slow and lacked the sharpness that one expects to find in a mentally alert person.  Sensibly, Mr Sakhrani concedes an earning capacity but only from the present time onwards.

Assessment

47.  Before I deal with the individual items of the award, I should say something about the Plaintiff’s ability to work.  I would have thought, based on the medical evidence, that he would have been able to secure and hold down a modest job such as a cleaner as from August 2007 which will limit his loss of earnings claim on a full purchase to 7 years and not the 10 years that Mr Sakhrani contends for.  I will deal with the figures based on this presently.

48.  I will now go through the various heads of damage.

Pain, Suffering and Loss of Amenity

49.  Mr Sakhrani argues for $600,000 and Mr Sadhwani for a very low $160,000.  I have had regard to the comparables placed before me.  Judge Fung’s case Yeung Tung Sang v Jamsart Cleaning Service Company [2004] 2 HKLRD 54 has helpful similarities.  In October 2003, he awarded $450,000 which with inflation would now be higher.  If anything that injury was more serious.  In this case, I would have awarded $400,000.  To this, interest at 2% will need to be added as from 4 August 2003.

Pre-trial Loss of Earnings

50.  I assess the Plaintiff’s earnings at $17,000 a month and not $18,200.  I find that his daily earnings overall are more likely to have been $650 and not $700, the adjustment downwards being made to have regard to days when he was not working.  The calculation is $650 x 26 days which I have rounded up to $17,000 a month.  Full loss of earnings would have been up to August 2007 after which he should have secured employment.  Full loss is $17,000 x 84 months which is $1,428,000.  I believe that since August 2007, he should have been earning $5,000 a month as a cleaner or doing some other similarly undemanding and modestly paid job.  So partial loss of earnings is  $17,000 - $5,000 being $12,000 x 33.5 months and comes to $402,000.  Pre-trial loss of earnings therefore is $1,830,000 to which pre-trial loss of MPF would have needed to be added.

Special Damages

51.  I would have allowed these is full as claimed by Mr Sakhrani including the value of his wife’s service who has given up work to care for him.  This is calculated at $4,000 a month x 42 months being $168,000.

Post-trial Loss of Earnings

52.  I would have applied a multiplier of 4 and not 6 as suggested by Mr Sakhrani and a multiplicand of $12,000 which gives $576,000 plus MPF at 5%.  I would not have awarded anything for loss of earning capacity simply because I would have provided generously on the loss of earnings claimed.  I would also award, as asked for, future medical and related expenses at $5,387 but nothing for future purchases of viagra which is recreational, although I have provided for past expenses for this on the basis that this was an aid to his rehabilitation.

53.  These amounts, once interest at the appropriate rates is calculated, represents a very substantial award of over $3 million.  As I have already indicated I have gone through this exercise in some detail so that if there is an appeal the court will know what I would have awarded had I found for the Plaintiff.

54.  With regret, I have had to do my duty on the basis of the evidence as I have found it to be and drawn my conclusions on that evidence which has prevented me from giving this Plaintiff, who has undoubtedly been seriously injured, any compensation.

Costs

55.  These will follow the event.  The Defendants will have their costs of the action on a party and party basis and there will also an order for legal aid taxation of the Plaintiff’s costs.  This order will be an order nisi.