HO MAN FONG v. SIME DARBY MOTOR SERVICES LTD

HCPI 1096/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1096 OF 2003

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JUDGMENT

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1. The plaintiff claims for damages for personal injuries sustained by him in an accident at work on 29 October 2001 against his employer, the defendant.

The facts

2. The plaintiff was born and brought up in China.  Before coming to Hong Kong, he has worked as a repair mechanic in China.  He came to Hong Kong in 1974.

3. The defendant is a motor vehicle repair and service centre and has one of a number of its workshop in Topsail Plaza in Shatin.

4. After coming to Hong Kong in 1974, the plaintiff has worked for a motor bus company and also for Crown Motors as a vehicle repair mechanic.  In August 1981, the plaintiff started to work for the defendant as a repair mechanic.

5. By the time of the accident in October 2001, the plaintiff has risen to the position of leader in the vehicle repair section with the defendant.  However, the plaintiff has only been working at the defendant’s Topsail Plaza workshop in Shatin for some 10 months before the accident.

6. The vicinity where the accident happened in that workshop was immediately in front of the workbench, which was placed against the wall.  On the workbench was placed a drilling machine as well as a polishing machine.  Underneath that workbench were shelves, which were used to store material that were used for the repair of vehicle, which included long metal bars, angled irons, flat iron as well as water pipes.

7. Immediately in front of the workbench was placed what is called a “channel iron” on the ground.  The channel iron is made up of two U-shaped channel bars welded together.  This was placed lengthwise on the floor against the front of the workbench.  It was about one foot high from the floor, such that anyone using the workbench will have to stand on this one foot high channel iron.

8. It was the plaintiff’s evidence that the vicinity of the floor just before one reaches the channel iron when approaching the workbench was strewn with a lot of repair material, which was being used for vehicle repair in that workshop.  The repair material strewn on the floor was in a rather untidy state.  They included water pipes on the bottom part, angled iron on top of them end pieces of flat iron on top of the angled iron.

9. In order to reach the workbench to use the drilling machine or polishing machine, he had to step over all the repair material strewn on the floor before he could even step on the channel iron.

10. That was the state of the floor in the vicinity of the workbench on the day of the accident.  The reason given by the plaintiff as to why repair material was strewn on the floor in front of the channel iron was because the storage shelves which were underneath the workbench was already fully utilised in storing repair material leaving no more room for storage.  Therefore, the further repair material brought into the workshop the week before the accident was placed on the floor in front of the channel iron at the direction of the foreman of the workshop.  In the process of the repair material being used by the workers, they became untidily strewn on the floor.

11. On the afternoon of the day of the accident at about 2:30 p.m., the plaintiff, who was working on a KCR shuttle bus, had to approach the workbench, in order to sharpen his tools by using the polishing and drilling machines on the workbench.  That according to the plaintiff was the first occasion on that day that he had approached and used the workbench.

12. He stood on the channel iron when using the workbench.  After he had finished, he took one step backwards stepping down from the channel iron.  He had looked to see that he was stepping on to a piece of flat iron about four inches thick which was just beyond the channel iron from which the plaintiff stepped down.  Just as his foot stepped on this piece of flat iron, it shifted and moved causing the plaintiff to lose his balance and fall backwards.  The plaintiff fell onto the floor and landed on his back.  He sustained injuries to his lower back as a result of this fall.

13. His claim made against the defendant, as employers, was put on the basis that the defendant was under a duty to provide a safe place of work but was in breach of such duty by allowing or permitting the repair material to be strewn untidily in front of the workbench thereby making the place of work unsafe when the defendant must have realized that workers such as the plaintiff will need approach the workbench at times to use the polishing and drilling machine on it.

14. Insofar as evidence is concerned, the defendant did not call any witness to challenge or dispute the evidence given by the plaintiff relating to liability. The only challenge of the plaintiff’s evidence was limited therefore to what was suggested or put to the plaintiff in cross-examination.

Liability

15. Insofar as negligence or breach of duty by the defendant as employer is concerned, there was no serious challenge mounted by the defendant.

16. In submission by counsel for the defendant it was made clear to the court that the only live issue to the question of liability was the issue of contributory negligence of the plaintiff himself.

17. In the absence of any evidence called by the defendant on the issue of liability, I can see no reason why the evidence given by the plaintiff should not be accepted by me.  If it should be necessary, I find the facts of this case to be as it was told by the plaintiff in his evidence.

18. On that evidence, I have little hesitation in coming to the conclusion that the defendant was in breach of its duty to provide a safe place and a safe system of work by reason of the fact that the repair material strewn on the floor of the workshop in an untidy state in front of the workbench posed a hazard and a risk to those workers including the plaintiff who had to use the workbench and in doing so had to traverse the repair material untidily strewn on the floor.

19. I therefore find that the defendant was liable to the plaintiff for this accident.

Contributory negligence

20. It is the defendant’s submission that the plaintiff should be found at least partly to blame for the accident based on certain admissions made by him in cross-examination.

21. The admissions relied on are as follows :

(a)	the plaintiff was the highest ranking of the mechanics at the workshop;
(b)	he had the authority to assign jobs to the other mechanics;
(c)	not only was he well aware of the pile of repair material placed on the floor, but that he knew there were different types of material such as flat iron, angled iron etc. lying around in a disorderly manner; and
(d)	the plaintiff also knew of the presence of water pipes and had seen other workers cutting water pipes into various lengths with the cutting machine.

22. On the basis of the above admissions, the defendant submits that this was not a case of ‘momentary inadvertence’ of the plaintiff since he had actually seen the repair material there and had looked to see that he was stepping on a piece of flat iron just before the accident.  However, the plaintiff failed to take the further step to ascertain what was beneath this piece of four inch flat iron, in particular water pipes, when he knew the repair material was strewn in a disorderly manner before stepping on it and therefore failed to exercise reasonable care for his own safety.

23. Moreover, it was submitted that the plaintiff, being the highest ranking of the mechanics at the workshop, could have instructed his subordinates to tidy up the pile of repair material and to move away the water pipes near the channel iron, in which case this accident would not have happened.

24. On those basis, it was submitted that the plaintiff was the author of his own misfortune.

25. Admittedly the plaintiff was the highest-ranking mechanic at the workshop and he also conceded in evidence that he could assign jobs to other workers.

26. However, there is a difference between assigning repair jobs or work to the other workers and giving instructions to them to clear the pile of repair material.  Insofar as giving instructions to clear the pile of material at the workshop was concerned, the plaintiff’s evidence was that came within the province of the person in charge of the workshop who was the foreman.  It was also the plaintiff’s evidence, which was never contradicted by any evidence from the defendant, that on the day of the accident, the foreman had left the assistant foreman to be the person in charge.  Therefore, since the plaintiff was not the person in charge, he did not have the authority to give the order or instructions suggested by defence counsel, namely to remove the pile of repair material left on the floor.

27. As for the plaintiff’s knowledge of the repair material strewn on the floor, it had always been the plaintiff’s case that he was aware of that and also aware that the material were strewn in a disorderly manner.  What he did not know, although he knew that water pipes had been used that whole week in the workshop, was the fact that underneath the flat angle iron which he stepped on were rounded water pipes.

28. The basis of the allegation of contributory negligence on this point really boils down to this.  That since the plaintiff knew that round water pipes were being used, and he knew of repair material strewn on the floor in a disorderly manner, he should have taken pain to ensure that there was no water pipes under the pile of material before he stepped on it in order to be safe.

29. In my view, it would be quite unreasonable for an employer to permit such a situation to exist (of repair material being strewn untidily across the floor of the work place) with the knowledge that the workers will have to go across it and then to seek to blame the workers for failing to ensure that the repair material was not safe to be stepped on.

30. In this case, the plaintiff had already taken care to see that it was a piece of flat iron that he was stepping on.  What he did not see (until after the accident) was that a piece of round water pipe was underneath thereby making the piece of flat iron on top to be unsteady.  The plaintiff was not taking any short cut for his own convenience nor was he disobeying instructions.  He was doing the best he could in a difficult situation created or permitted by his employer with full knowledge of the situation.

31. In those circumstances, I am not persuaded that the plaintiff was at fault himself.  Accordingly, I find that the plaintiff was not contributorily negligent in this matter.

Injuries and treatment

32. Upon the accident happening, the plaintiff immediately noticed that he had back pain from the fall.  He attended the Accident and Emergency Department of the Prince of Wales Hospital.

33. X-ray taken at the Prince of Wales Hospital showed no fracture.  The plaintiff complained of pain to his back and was admitted for three days and conservative treatment was given.  He was then transferred to North District Hospital for further management.

34. On 23 November 2001, the plaintiff was referred to the Department of Orthopaedic and Traumatology of North District Hospital because of the persistent pain in his back.

35. By that time the plaintiff was complaining of persistent back pain which was radiating down to his right buttock and thigh.  He also complained of right lower limb numbness and subjective weakness as well.  He had to walk with a walking stick.

36. Radiological examination at the Department of Orthopaedic and Traumatology showed that the plaintiff had ankylosing spondylitis which was a condition pre-existing before his injury from this accident.  That pre-existing condition had a history of intermittent back pain for some two years before this accident.

37. CT scan taken at the North District Hospital further confirmed that the plaintiff did not suffer any fracture from this accident.

38. Apart form the ankylosing spondylitis, the plaintiff was also diagnosed with right frozen shoulder.

39. The plaintiff was treated with conservative treatment including physiotherapy.  The plaintiff received follow up treatments at the North District Hospital.  When he was assessed there on 24 December 2002, he still had back pain and walked with the aid of a stick.  There was muscle spasm at his lower back and his frozen shoulder condition remained more or less the same.  His back pain, by then, had lasted some 14 months and his frozen shoulder some nine months.

40. Sick leave was granted to the plaintiff from 6 December 2001 to 14 November 2002.

41. The plaintiff was examined by Dr Au Ka Kau, the expert orthopaedist instructed by the plaintiff in this matter on 25 July 2003.  In his report dated 4 August 2003, Dr Au gave his opinion and findings as follows :

(1)	the plaintiff had sustained multiple injuries in the accident when he slipped and fell on 29 October 2001 and developed persistent back pain and right shoulder pain;
(2)	the pain and stiffness in his right shoulder is compatible with a frozen shoulder which is a complication of the injury he sustained in the accident;
(3)	the persistent back pain of the plaintiff is compatible with soft tissue injury to his lower back;
(4)	the limited spinal movement of the plaintiff is due mostly to the ankylosing spondylitis, a pre-existing condition of the plaintiff;
(5)	his back injury is permanent, but his shoulder pain may improve with steroid injection and physiotherapy;
(6)	there is 8% impairment of the person due to the shoulder pain and stiffness, and a further 20% impairment of the person due to the back problem;
(7)	the plaintiff is unfit to return to his pre-accident job but is fit for light or sedentary work.

42. The plaintiff was also examined by the defendant’s orthopaedic expert, Dr Lee Po Chin in September 2002 and in his report dated 17 September 2002 gives his opinion and findings as follows :

(1)	the plaintiff complains of back pain with right lower limb numbness and weakness as well as right shoulder pain resulting from a fall at work;
(2)	the right shoulder pain, which started four months after the accident is unlikely to be related to the back injury or the accident;
(3)	the back pain is as a result of a contusion injury;
(4)	the plaintiff has an underlying condition of ankylosing spnodylitis which probably started when he was young but which usually burns out as a disease after 15 to 20 years; given that the plaintiff is 58 years old, the ankylosing spondylitis should have burnt out before the plaintiff met with his accident;
(5)	the right foot numbness and right leg weakness cannot be explained in the absence of any fracture;
(6)	with a fused spine due to the ankylosing spondylitis, the plaintiff will suffer more pain after a contusion injury than someone with a normal spine since there is no mobile segment to absorb the impact, but even so the recovery time is about six months;
(7)	the plaintiff should be able to return to his pre-accident work as a car repair mechanic;
(8)	there is 3% impairment to the plaintiff from the injury.

Psychiatric condition

43. Quite apart from his orthopaedic injuries and resultant disabilities stated above, the plaintiff also complains of psychiatric impairment.

44. The plaintiff had attended the North District Hospital psychiatric outpatient department in December 2002 for management of his low mood which had developed since he was suspended from his job.  It is the plaintiff’s case that he had suffered depressed mood manifested by weeping spells, irritability, temper tantrums, sleep impairment being disturbed by the pain as well as a sense of worthlessness.  On occasions he had fleeting suicidal ideas.

45. He was diagnosed to have Depression at the North District Hospital and was followed up at the North District Hospital but with no significant improvement in his mood.  In fact he became more depressed in March 2003 due to his deteriorating physical condition.

46. Between 4 March and 12 April 2003 the plaintiff was admitted to the psychiatric unit of Shatin Hospital for inpatient treatment and given oral analgesics and physiotherapy for his chronic pain.  His mood improved and the negative cognition abated.

47. On one occasion in June 2003, the plaintiff was found climbing out of the window at his home in an attempt to commit suicide but was stopped by his wife.  He was later admitted for a week to the North District Hospital Medical ward.  Thereafter, there was no further attempts at suicide.

48. The plaintiff was examined by Dr Peter Ho Pang Nin, the expert witness in the field of psychiatry instructed by the plaintiff.

49. Dr Ho came to the opinion that the plaintiff was suffering from a depressive reaction to the physical symptoms arising from the accident in question.  Dr Ho further stated that the plaintiff had mild symptoms of post-traumatic stress disorder though such had not amounted to the full clinical syndrome.

50. The plaintiff was also examined by Professor Lieh Mak, the psychiatric expert instructed by the defendant.  In her opinion, the plaintiff had exaggerated his symptoms such that his complaints could not be relied upon for a useful diagnosis.  She was further of the view that the plaintiff was not suffering from any psychiatric disorder, specifically post-traumatic stress disorder, since there has to be a very severe trauma to cause such disorder.  In the case of the plaintiff, a slip and fall while working at the work place cannot come within that category to be of sufficient severity to cause PTSD.

Pain suffering and loss of amenities

51. It is common ground that the plaintiff had a pre-condition of ankylosing spondylitis even before this accident.  That pre-condition was symptomatic in that the plaintiff was experiencing intermittent back pain on his lower back for some two years before this accident.

52. The injury received by the plaintiff likely aggravated that pre-condition of his and increased the back pain.

53. Insofar as there is difference between the two orthopaedic experts as to whether the frozen shoulder of the plaintiff was related to the accident, I am disposed to accepting the opinion of Dr Au Ka Kau that the frozen shoulder of the plaintiff was a complication arising from the injuries sustained by him from this accident.

54. As for the psychiatric condition complained of by the plaintiff, as early as December 2002, the plaintiff had been attending the North District Hospital psychiatric outpatient department due to his low or depressive mood and had been diagnosed to be suffering from depression.  That much of his psychiatric condition I accept.

55. I do not however accept the opinion expressed by Dr Peter Ho Pang Nin that the plaintiff suffers from post traumatic stress disorder due to the accident in question.  In that respect, I prefer the evidence of Professor Lieh Mak that post-traumatic stress disorder is a psychiatric disorder that arises only from some very severe trauma.  The medical literature suggests that a pre-condition of post-traumatic stress disorder is that the patient actually experiences some life threatening danger.

56. In the case of this plaintiff, his accident from a slip and fall can by no stretch of the imagining come within a trauma of such magnitude.

57. I do however, accept that the plaintiff did suffer low mood and depression as diagnosed by doctors at the North District Hospital.  However, the suggestion by them was that his low mood and depression came about after he was suspended from his job.  In his own evidence, the plaintiff had also indicated that he was dissatisfied with the way he was treated by his employers after the accident.  That coupled with the fact that his low mood only manifested itself some time in mid 2002, some nine months after the accident lead me to the conclusion that the low mood and depression of the plaintiff was not a direct result of the accident itself, but was born of his dissatisfaction with the way he was treated by his employers after the accident had occurred.

58. Taking into account all the above, the orthopaedic injury sustained by the plaintiff from the accident cannot be said to be of any great severity.  Even if the pain lasted for an unduly long period of time, I have to take account of the fact that the plaintiff was already suffering from mild back pain from the ankylosing spondylitis even before this accident.

59. I further take into account the video produced into evidence by the defendant and taken of the plaintiff in the street on two different days in July 2004.  That video showed the plaintiff to have been holding a walking stick when walking in the street.  However, it shows the plaintiff not to have been relying very much on that walking stick when walking and that he was walking at quite a normal pace even when he was ascending steps.  It also showed that although the wife of the plaintiff was present with him, the plaintiff did not need to rely on his wife for assistance when walking.

60. From this, I further find that there was quite a bit of exaggeration by the plaintiff as to his condition and that most if not all of the pain was gone by the time the video was taken in July 2004.

61. Taking into account all that has been said above, and on the basis that the injuries caused by the accident had aggravated the pre-condition of the plaintiff’s ankylosing spondylitis, I would assess the award for pain and suffering to be $250,000.

Pre-trial loss of earnings

62. There is no dispute that the plaintiff’s pre-accident average salary was $18,755 per month.

63. The plaintiff was granted 36 months of sick leave by government doctors at North District Hospital (up to 28 October 2004).  This ties in well with the video taken by the defendant in July 2004 that by then the plaintiff was walking quite well not needing assistance either from his walking stick or from his wife.

64. It was suggested by the defendant that pre-trial loss of earnings be restricted to only 12 months on the basis that Dr Lee estimated 6 months to be a reasonable period for sick leave for this plaintiff and that Dr Ngai Wai Kit, Chief of Service of North District Hospital had refused to grant the plaintiff any further sick leave after 14 November 2002.

65. I am not persuaded by that submission of the defendant.

66. The fact that initially Dr Ngai had refused further sick leave to the plaintiff in November 2002, but later sick leave continued to be granted after further MRI’s were taken of the plaintiff shows that the government doctors were conscientiously taking all the circumstances into account in deciding whether or not sick leave was required.  It was not the case that they were granting sick leave without giving the matter serious consideration.

67. I further come to the conclusion that in this case, when sick leave ended on 28 October 2004, that was because the treating doctors at the hospital considered the plaintiff to be well enough to resume work.

68. In all the circumstances of this case, I find that the plaintiff was able to resume his pre-accident work as a car repair mechanic after his sick leave ended and there is no question of any further loss of earnings after the sick leave period.

69. Accordingly, pre-trial loss of earnings will be assessed only for the 36 months for which sick leave was granted to the plaintiff.

70. That comes to $18,755 x 36 = $675,180.

71. The loss of MPF relating thereto would be calculated on the basis of 35 months since MPF came into effect in Hong Kong in December 2001.  The loss of MPF works out to be 5% of ($18,755 x 35) = $32,821.

72. Total pre-trial loss of earnings including loss of MPF comes to $708,001.

Loss of future earnings/loss of earnings capacity

73. On the facts as I have found them, I am not disposed to making any award for loss of future earnings or loss of earnings capacity since my findings lead me to the conclusion that there will be no such loss suffered by the plaintiff.

Medical expenses

74. Medical expenses incurred at government hospitals in Hong Kong has been agreed by the defendant in the amount of $8,804 as what was pleaded in the Revised Statement of Damages.  However, since the date of the Revised Statement of Damages, further payments have been made by the plaintiff to the Nethersole Hospital and the Shatin Hospital.  The amount claimed therefore has increased to $9,884.  That sum will be allowed.

75. What is in dispute in so far as medical expenses are concerned relates to $3,640 paid by the plaintiff to Dr Chau Yat Sang, a private doctor, and expenses equivalent to $6221 incurred by the plaintiff when he sought medical treatment at the Guangdong Hospitals.

76. The plaintiff’s evidence was that he visited Dr Chau Yat Sang, a private doctor, between November 2002 and June 2003 after sick leave certificates were refused him by the North District Hospital in November 2002.  However, after further MRI examination was carried out, sick leave certificates were resumed by the North District Hospital.

77. The amounts spent by the plaintiff consulting Dr Chau Yat Sang is not unreasonable and the reason for the plaintiff consulting Dr Chau cannot be faulted.  Accordingly, the sum of $3,640 claimed by the plaintiff will be allowed.

78. As for the expenses incurred at the Guangdong Hospital, it is the plaintiff’s evidence that for 40 days between 22 September and 1 November 2003 he was admitted to hospital in Guangzhou when he was visiting his mother in law (who had suffered a stroke) there, but during his visit, he felt acute pain in his back and attended hospital there to seek treatment and was admitted there for 40 days.

79. The defendant disputes this claim on the basis that it related to his pre-existing condition of ankylosing spondylitis.

80. However, given the medical evidence in this case, it cannot properly be said that such expenses would still have been incurred by the plaintiff without the aggravation of his pre-existing condition due to this accident.

81. In the absence of any evidence challenging that evidence of the plaintiff, I am disposed to allowing the plaintiff’s claim for the $6,221 incurred by him in the hospital in Guangdong.

82. Total medical expenses therefore comes to $19,745.

Travelling expenses

83. Travelling expenses in the amount of $3,384 incurred by the plaintiff for attending hospitals and medical treatment or consultation in government hospitals have been agreed by the defendant.

84. What is in dispute is the travelling expenses claimed by the plaintiff for attending Dr Chau Yat Sang ($576) and relating to his travelling to hospital in China ($861).

85. The travelling expenses for visiting Dr Chau will be allowed since those expenses for consulting Dr Chau has been allowed.

86. As for the travelling expenses to China, they will not be allowed since the plaintiff went there in the first place to visit his mother in law and not specifically for medical treatment there.  The treatment there was only incidental to his visiting his mother in law there.

87. Total travelling expenses assessed comes to $3,960.

Tonic food

88. The plaintiff claims $34,838 under this head.  The claim is unsupported by any evidence from any doctor or qualified person that such expense was necessary for the plaintiff.  In the absence of such evidence, and bearing in mind the injury to the plaintiff was not of any great severity, I am only prepared to allow $5,000 under this head.

Medical equipment

89. There is also a claim for $28,849 being incurred by the plaintiff for the purchase of a massage chair and other massage equipment to relieve his back pain.  Once again, in the absence of any evidence that such equipment was prescribed by a doctor or qualified person, and the amount claimed being unreasonably high, I am not prepared to allow the claim under this head.

Future medical expenses

90. The plaintiff claims under this head $7,000 being the cost in the private sector for intra articular steroid injection and physiotherapy suggested by Dr Au Ka Kuen and also $48,000 being the cost of psychiatric treatment in the private sector for two years as suggested by Dr Ho Pang Nin.

91. The plaintiff has received the majority of his treatment both orthopaedic and psychiatric from hospitals in the public sector in Hong Kong (save that he had consulted Dr Chau Yat Cho from November 2002 to June 2003 because sick leave certificates were not granted to him at North District Hospital).

92. No good reasons having been advanced as to why he cannot receive the future treatment from hospitals in the public sector, it would not be reasonable to grant the claims under this head.

Interests

93. Interests will be awarded for general damages for pain suffering and loss of amenities at 2% p.a. from the date of the Writ to judgment.

94. Interests on all special damages and pre-trial loss of earnings will be awarded at 4.122 % (being half judgment rate) from the date of the accident until judgment.

Summary

96. From the sub-total amount will need to be deducted the sum of $337,906 being the advanced payment received by the plaintiff by way of employees’ compensation which gives $768,896.

Conclusion

97. There will be judgment for the plaintiff in the sum of $768,896.

Costs

98. There will be a costs order nisi that the defendant pays the costs of the plaintiff’s action.  Such costs, if not agreed, to be taxed on the High Court scale for all costs incurred before 1 December 2003 but to be taxed on the District Court scale for all those costs incurred after 1 December 2003.

99. There will be a further order that the plaintiff will not be entitled to claim the costs incurred in obtaining the expert psychiatric report of Dr Peter Ho Pang Nin and/or the costs incurred in calling him as an expert witness since that evidence was wholly unnecessary and the plaintiff’s case could very well have been brought on the basis only of the psychiatric reports from North District Hospital outpatient psychiatric department.

100. There has been a growing tendency in Personal Injuries litigation whereby plaintiffs have been alleging psychiatric impairment quite unnecessarily as in this case, probably in the hope that it would increase the quantum which they will recover at the end of the day.

101. Proper costs orders should therefore be made where it is shown after trial (as in the present case) that expert reports and/or expert witnesses were quite unnecessary and only served to waste a lot of time for all concerned.