CHOI CHI HUNG v. WONG KUEN BOR t/a BOR KEE ELECTROPLATING FACTORY

1995, No. P.I.1026

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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The Claim

1. The Plaintiff seeks damages against the Defendant for injuries sustained by him in the course of employment with the Defendant on 24th August 1988. The Defendant operated an electroplating factory. The Plaintiff had been employed by the Defendant for about four months before the accident. For the first two months, he was engaged in the colour changing process of the work, thereafter he was responsible for drying the products which had been electroplated. He was required to operate six centrefugal drying machines ("the machines"). He was required to put the finished products into a container in the machine, close the cover of the machine and afterwards take out the container and tossed the products inside so that they would be dried evenly. When the drying process was finished, he would take out the container with the products and pour them onto the weighing table so that they may be weighed and put in carton boxes. The six machines were placed on a concrete platform which was slightly raised from the floor level and the Plaintiff had to work on the platform. The floor of the factory was wet. However the platform was relatively dry although there may be dripping from the nylon bags of the finished products which had previously been rinsed.

The Plaintiff's case

2. The Plaintiff's case is that one or two days before the accident, there was leakage in one of the electroplating tanks which was filled with alkaline solution. The tank was opposite the machines. The Defendant used some gunny sacks to stop the leakage. On the day of the accident, the tank was emptied out by two students who were doing summer job in the factory. The liquid in the tank was removed to plastic containers. This was done under the supervision of the Defendant. Then in the afternoon, while the Plaintiff was working on one of the machines, he slipped and lost his balance. He was in the process of taking a container from the machine for the purpose of tossing the products. He slipped, fell forward towards the machine and a large noise was made. He slipped because the floor was slippery. He suspected that the alkaline from the tank was splashed onto the platform when the tank was emptied earlier that day. After the slip, he continued working, then some time later he slipped again. He felt pain in his back. On the next day, he had to stop work and see the doctor because of the pain at his back.

The Defendant's case

3. Mrs Wong, the wife of the Defendant, gave evidence for the defence. She said she witnessed the accident in the afternoon of the 24th August. She saw the Plaintiff was about to take out the bowl, which I understand to be the container, from the machine in order to toss the goods. But before he could do so, she heard a "ki-kop" sound. The Plaintiff dropped the goods to the machine. His legs slipped backward and his body leaned forward. Mrs Wong was at that time at the weighing table. She asked him if he was alright, he said he was alright and nothing was wrong. The Plaintiff finished work at 6:00 pm and there was no other accident that day. She denied that there was any alkaline liquid on the platform although she agreed that the platform was wet. She denied that there was ever any leakage of the tanks. In the summer of 1988, the Defendant did not employ any student. She denied that the liquid in the tank was emptied that day. According to a sketch prepared by Defendant's solicitors in accordance with the Defendant's instructions, there was no electroplating tank facing the machines. The position of the tanks were different in the sketch prepared by the Plaintiff.

Assessment of the evidence

4. I accept the Plaintiff to be a truthful witness and his evidence of the accident is true. The likely cause of the accident was due to the slippery substance which was splashed onto the platform when the tank was emptied that day. Although the Plaintiff had only worked in the factory for about four months, I accept his evidence regarding the layout of the factory. There may well be some discrepancies in his evidence and some answers he gave contradicted some of his earlier answers, but the overall impression is that he was giving the evidence in a truthful manner.

5. Mrs Wong, on the other hand, is a pedantic person. I am not satisfied that she was telling the whole truth about the events. She began her evidence about the accident by referring to the complaints of the Plaintiff earlier that she would only instruct him to do work and not the other workers, and that he would leave the job in a few days time. I do not understand the relevance of this evidence. Certainly, it has not been suggested in the cross-examination of the Plaintiff that he did not return to the Defendant's employment due to some other reason and not because of his injury.

6. Mrs Wong's evidence was that the Plaintiff slipped because he lost grip of the container. Her description of the accident in the witness statement was quite different from what she gave in evidence. The statement was made recently on 13th July 1996 and the content was interpreted to her in Cantonese. In paragraph 6, she stated that "When the plaintiff lifted the cage of the drying machine to even out the switches contained therein weighing altogether approximately 20 pounds, I saw the Plaintiff lose his foothold and as a result his body leaned forward slightly before regaining balance again." Then at paragraph 11, she stated that "I believe that the incident was not due to any slippery condition of the floor of the factory, which I deny, but was due to the fact that the Plaintiff had failed to hold the cage of the machine firmly or securely and had bent forward whilst he was lifting it." It appeared that her evidence of how the Plaintiff slipped was based on her belief rather than on her actual observation.

7. In the notice given by the Defendant pursuant to the Employee's Compensation Ordinance, the accident was described as :

"Employee Choi Chi Hung was attending the drying machine. He was to put the electroplated products into the machine and tipped them out when they were dried. When he lifted up the inner part of the machine he slipped and fell forward ....."

There was no reference to the Plaintiff losing the grip.

8. The Defendant moved the factory in 1991 to another location. The Court was informed that, for sentimental reasons, a video recording was made of the factory. Layout of the sketch produced by the Defendant is similar to the layout of factory shown in the video. However, it is clear that there had been some change in the factory such as the reconstruction of the staircase between the time the Plaintiff left in August 1988 and the time when the factory was removed in 1991. I find that the position of the tank had been moved after the accident. The tank was not affixed to the floor of the factory. It was made of stainless steel, it was mobile and was part of the electroplating machine. Mrs Wong said the tank in the factory were purchased in 1970 and there was no leakage at all. This is hard to accept in an operating factory and is belied by Paragraph 5C of the Defence which pleaded that empty canvas bags were used as an additional preventive measure to soak up any fluid spillage on the floor. Mrs Wong attempted to explain that the bags were used to prevent the water from coming into the factory during heavy rain. This explanation is not satisfactory. From the video, it appeared that the area of the factory was small. Buckets and containers occupied the floor areas and it would not be of surprise that some alkaline liquid might have been splashed onto the floor or platform.

9. I do not accept that the Plaintiff had concocted a story of the emptying of the tank in order to link up the cause of the accident with the alkaline spillage. According to the Defendant's evidence no student was employed that summer and, if so, the Plaintiff should not know of any summer students since he was employed there for four months only. The fact that no person had slipped in the factory before does not mean that there would not be any accident. Accidents do happen in our daily life.

10. Mrs Wong's evidence regarding the discovery of a waist band in the workers' lockers in March 1991 should again be accorded with no weight. The article was not produced because it was discarded at the time of the removal of the factory. The Plaintiff had by then left the factory for about 21/2 years. The Plaintiff denied that he had used any waist band. If he had, this must have been seen by the Defendant and the co-workers. Afterall the factory was a small one. Mrs Wong's evidence that the waist band was discovered together with the ginseng which she had previously seen the Plaintiff used appeared to be an attempt to link up the owner of the waist band with the Plaintiff. There was no reference to ginseng in her witness statement.

Liability

11. An employer is required to provide the workers with a safe place of work. The Factories and Industrial Undertakings Ordinance (Cap.59) further requires a factory operator to provide an effective means for the draining of moisture of the floor of a workplace which is liable to be wet (s.35). Under s.39, the surface of the floors of the workplace must be rendered and maintained in a even and non-slippery condition and the floors shall be kept free from any obstruction or hazard which might cause a person to fall down or stumble by tripping or otherwise.

12. The obligation of the Defendant was not discharged in this case due to the presence of slippery solution on the platform.

Contributory negligence

13. It was submitted that after the first fall, the Plaintiff had not taken steps to safeguard his own safety by ensuring that the floor was not slippery. I think this matter can be shortly disposed of. Obviously the Plaintiff had to work very quickly with the machines. The evidence showed that there were six drying machines and they were operating at the same time. The Plaintiff had to take care of the machines one after the other because products would soon be loaded onto a machine. In such circumstances, I do not accept that the Plaintiff should have taken steps to ensure the floor was not slippery after the first slip.

14. I repeat once again the words of Lord Oaksey in General Cleaning Contractors Ltd. v. Christmas [1953] AC 180 : "Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition."

15. The Plaintiff was of course not working on window sills but the same comment would apply to this case. I do not find that he was contributory negligent at all.

Injuries

16. After the accident the Plaintiff found that he was in great pain that night. He could not take a bath and he had to ask his wife to rub medicine ointment for him. He was admitted to the Tang Shiu Kin Hospital on 25th August 1988. On admission, he was found to have marked back tenderness with radiation to the right side. He was given analgesic and physiotherapy but with little relief. On 28th September 1988, he was transferred to the Tung Wah Hospital and a myelogram was taken. It was discovered that he suffered a prolapsed intervertebrae disc. Laminectomy was performed on L5-S1 on 5th October 1988 and he was discharged on 20th October 1988. Starting from 28th November 1988, the Plaintiff underwent hydrotherapy for about seven months to relieve the pain and stiffness in his lower back. He attended the out-patient orthopaedic clinic for regular treatment for about 20 sessions. When he was last seen by the hospital on 4th January 1989, he still had mild back pain.

17. According to the medical report of Dr Yeung Po Sun dated 3rd April 1989, it was recorded that :

"Radiological examination

X-ray of lumbar and sacral spine was taken on 3 April, 1989. There was lumbar spondylosis in all the lumbar spine. Big osteophytes were found in L4 and L5 lumbar bodies. The L5-S1 disc space was very narrow, it could be the disectomy site. Anterior displacement of L4 over L5 body was detected which suggested severe degeneration in the lumbar spine."

It should be noted that Dr David Lee said the x-ray showed that it was the posterior, not the interior, displacement of L4 and L5. Dr Yeung further said that :

"After the operation his right sciatica had improved very well. However the back symptoms did not improve very well. This is expected as Mr Choi also had lumbar spondylosis in the spine. The post-operative pain and stiffness was caused by fibrosis of the dura, fibrosis of the back muscle and lumbar spondylosis."

Dr Yeung assessed the Plaintiff had a disability of 15%, and loss of earning capacity at 15% as well.

18. When the Plaintiff was examined by Dr Lee in September 1989, his complaints were recorded as follows :

"1. He cannot squat for longer than fifteen minutes otherwise he would have difficulties to stand up.

2. If he stands longer than twenty minutes he would have numbness over his right leg.

3. If he sits longer than one and half hours he would have low back pain."

19. In February 1995, the Plaintiff was examined by Dr Lee again, who in his report dated 27th February 1995, said that :

"Today, Mr. Choi's x-ray examination revealed not only very advanced degenerative changes with multiple osteophytes but also there is a retrospondylolisthesis of L4 on top of L5 and I suspect he might also starts to have a slipped disc at L4-5 because I found his extensor hallucis longus and dorsiflexor muscles over both lower limbs are somehow weaker than normal people."

Dr Lee further said that :

"Mr. Choi is suffering from unsteady stability of the lower lumbar region. Spondylolisthesis of L4-5 and Laminectomy of L5-S1 are the causes of the unsuitability of the lower lumbar region. The pain, especially, on movement and lifting heavy things is a very common complaint. I believe that the pain in his low back with pins and needles in his right leg are genuine."

In 1989, Dr Lee assessed the Plaintiff's permanent disability at 20% and loss of earning capacity at 20%. In 1995, his assessment was that his permanent disability was 20% while the loss of earning capacity was in the region of 50%, which he took into account the Plaintiff's difficulty in obtaining "a very light capacity of job".

20. The Plaintiff was examined by Dr Louis Hsu, an expert retained by the Defendant in June 1996, Dr Louis Hsu said that the Plaintiff walked into his examination room :

"..... with a crouched back, bending forwards by about 20°. His back was quite stiff with about 50% of normal range of movement. Active and passive extension of his back produced pain in the lumbar region and was resisted.

There was no sciatic nerve irritation as straight leg raising was 70° both sides. Neurological examination of his lower limbs were normal."

Dr Hsu could not draw any conclusion as to the direct cause of the Plaintiff's injury. Furthermore he said that in view of the marked arthritis in his spine, taking up a heavy object even with the best of posture could have precipitated a back injury.

21. Dr Lee described the injury sustained by the Plaintiff when he fell forward as flexion injury. He was of the opinion that although the Plaintiff has a degenerated back, it was the fall which caused the precipitation of the symptoms. One reason advanced by Dr Lee was that manual labourers built up strong back muscles which supported the spine and hence the degeneration of the spine would not give rise to symptoms until the workers met with an accident to their back.

22. I have the opportunity of hearing Dr Lee's evidence in many industrial accident cases. His opinion of workers with a degenerated back but with symptoms only manifested after an accident is a view that he has consistently maintained. I have previously accepted his opinion on this matter. In the present case he was tested in cross-examination. I would again accept his opinion.

Causation

23. Miss Cheng, Counsel for the Defendant, argued that the Plaintiff bears the burden of proof linking the accident and the injury. The injury diagnosed in 1988 was prolapsed disc at L5-S1, laminectomy was performed and the Plaintiff was discharged from hospital on 20th October 1988. In July 1990, the Plaintiff had experienced no further pain with his body. Between 1st June 1991 and 10th October 1993, he worked as a general technician for JLW Management Services Limited ("JLW"). Dr Lee's opinion was that the symptoms of the Plaintiff in 1995 was due to his age, the work he had done, the result of the surgery and his degenerated back.

24. Miss Cheng, relying on Rouse v. Squires [1973] 1 QB 889 and Jobling v. Associated Darries Ltd. [1982] AC 795, submitted that the predominant cause of the Plaintiff's symptoms was the intervening events, namely, the JLW job which Dr Lee described as strenuous and his long journey to Shanghai to seek medical consultation. She submitted that the Defendant should not be answerable for consequences beyond his control and in assessing damages, the court must take into account any intervening event or illness to avoid over compensating the Plaintiff.

25. The Defendant's submission was not based so much on intervening events breaking the chain of causation but on the question of damages. The difficulties that the Defendant faces is that firstly, there is no evidence of an intervening event which broke the chain of causation as in Rouse, nor is there any evidence that the Plaintiff was suffering from a condition which was not connected with the accident but would have proved to be totally disabling as in Jobling. The train journey to Shanghai was long but it is really speculative to say that it posed as an intervening event. There is simply no evidence that the symptoms experienced by the Plaintiff in 1995 were due to injuries he sustained during his employment with JLW. The problems with L4 and L5 were detected in medical examinations in 1989 as well. According to Dr Lee, laminectomy is well known to cause recurrent back pain and prolapsed disc later on due to the weakening of the back muscle as a result of the operation. The alternative operation of anterior spinal fusion is a major surgery. He would recommend laminectomy for the Plaintiff because of his age and the multiple levels of injuries to the back. The operation would give him instant relief to the pain. The injury that the Plaintiff sustained was a direct consequence of the accident on 24th August 1988. I will not reduce the damage.

Pain, suffering and loss of amenities

26. Miss Cheng referred to the following cases on back injuries and submitted that the damage for pain, suffering and loss of amenities should be in the region of $100,000 to $150,000.

Lee Hon Chuen v. Fung Kin San and Others (High Court Action No.A1105 of 1989), Decision 13th June 1991.
PSLA : $150,000;

Chan Kwai Ngor v. Leung Fat Fang (HCA No.4053 of 1990), Decision 3rd April 1992.
PSLA : $80,000;

Yu Kwok Shing v. Color Cells Far East Ltd. (HCA No.3482 of 1993), Decision 31st October 1995.
PSLA : $150,000.

27. The current range of damages for serious injuries starts at $400,000. The injury sustained by the Plaintiff does not fall within this category. All the three cases relied on by Miss Cheng were decided before the Court of Appeal decision of Chan Pui Ki v. KMB (Civil Appeal No.263 of 1995). One should use the new guideline as a starting point in the assessment of damages. I would assess the damage in the present case to be $300,000.

Loss of earnings

28. The Plaintiff was granted sick leave from 25th August 1982 to March 1990. He managed to find work from 1st July 1990, firstly with Housing Employment Agency Ltd. and later with JLW. He remained in full time employment until 10th October 1993. The medical evidence from both experts is that the Plaintiff was not malingering. Dr Lee was of the opinion that the Plaintiff was not a lazy person and he tried to find work when he had the chance. This is supported by what actually happened in the present case.

29. The Plaintiff worked throughout his life. He was born on 18th August 1933 in Shanghai, China. After secondary school, he worked in China as a maintenance technician doing electrical and plumbing repair work in a state-owned gold plating factory until he came to Hong Kong 1980. After his arrival in Hong Kong, he worked as a fitter in machine factory. In 1987, he left the factory to start his own trading business. However, the business failed and he took up the job with the Defendant. His intention at that time was to look for an alternative job with a higher pay. His average monthly earning with the Defendant was $4,337.04. He was entitled to an annual bonus which was equivalent to approximately one month's salary. Taking into account the bonus, his average monthly salary would be $4,699.

30. Mr Sakhrani, Counsel for the Plaintiff, submitted that in calculating loss of earnings, one should adopt the higher salary of a fitter of $7,000 per month, or alternatively, salary of a electrician of $6,276 per month.

31. While I accept that the Plaintiff is qualified as an electricity and water technician, the reality is that when he resumed work again on 1st July 1990, his earning was $5,000 per month. His duties were maintaining the electrical appliances and the water supply of two industrial buildings. The wage level I would adopt is the median of the pre-accident earning of $4,699 and the sum of $5,000. The figure is ($4,699 + $5,000) ÷ 2 = $4,850. There was a total of 22 months from the day of the accident to the end of June 1990. The amount will be $4,850 x 22 = $106,700.

Employment and age

32. Between 1st June 1991 and 10th October 1993, the Plaintiff worked as a general technician for JLW. His duties were maintaining the electrical and water supply of a building. The reason given by JLW for the termination of his employment was old age. However, in the internal memorandum of JLW produced at the hearing, the reason given for his dismissal was that he refused to obey the instructions of his supervisor. The Plaintiff explained that his supervisor instructed him to wash the dust screens of the water tanks in the building twice a week on specific days. However, he only washed them on some other days of the week according to the state of his physical condition at that time. Hence the real reason for his termination was not based on age.

33. Dr Hsu stated that the degenerative spine of the Plaintiff could certainly have precluded him from working beyond the age of 62. He said the injury of 1988 could have been "Mother Nature's way to stop him from such strenuous work". I think what Dr Hsu said about the Plaintiff stopping work at 62 was in relation to heavy work. The Plaintiff has been an active man working throughout his life. If not for the injury, there is no reason why he could not work until the usual retirement age of 65. In fact Dr Lee said he has seen workers worked until their 70s. However, it is equally clear that because of his back, the Plaintiff found it difficult to cope with his work in JLW. When his employment was terminated on 10th October 1993, the Plaintiff was 60 years of age. Although he may not be able to resume work as an electrical technician, certainly he is capable to work as a caretaker. The average monthly wage of a caretaker, according to the statistics produced by the Census and Statistics Department for 1994 and 1995, is $4,548 per month. From 11th October 1993 to present is approximately 36 months. The Plaintiff is entitled to loss of wages for this period at $4,548 x 36 = $163,728.

34. Miss Cheng argued that the Defendant had not properly pleaded or particularised the case for special damages in relation to the loss of earnings. I disagree. The Plaintiff's case for loss of earnings is clear although a higher level of wage is sought. The Defendant is not in any way prejudiced if I award the damage under this head based on a lower wage level.

Loss of future earnings

35. This is a man who would be capable of working until 65 if not for the injury. He is now 63 years and two months old. Taking into account the early recovery of the damages, I think an award of 10 months' salary for future loss is appropriate. The sum is HK$4,548 x 10 months = $45,480.

Special damages

Medical expenses in Hong Kong

36. Medical expenses incurred in Hong Kong in the sum of $2,357 are admitted by the Defendant.

Medical expenses in Shanghai

37. The medical expenses is $3,087. The Plaintiff sought traditional Chinese treatment in Shanghai in a hospital. It is clear from authorities that awards for reasonable bonesetter's fees and nourishing food are allowed by the courts. The treatment received by the Plaintiff included acupuncture treatment and medicine. The sums claimed are modest. I am satisfied that they are reasonably incurred and should be recovered by the Plaintiff.

38. Total medical expenses : $2,357 + $3,087 = $5,444.00

Travelling expenses

39. $400 for travelling expenses in Hong Kong while the Plaintiff attended follow-up and physiotherapy treatment. This is admitted.

40. The Plaintiff incurred a total sum of $5,991 as travelling expenses between Hong Kong and Shanghai. He travelled by train, ferry and aeroplane. Considering the number of journeys he had undertaken, the sum incurred are not too expensive. However, if the traditional treatments were sought in Hong Kong, the travelling expenses may not be that high. Doing the best I can, I award the sum of $2,000 for travelling expenses to China.

Summary

41. Employee's compensation in the sum of $119,408.08 was received by the Plaintiff. This sum has to be deducted from the amount awarded. There shall be judgment to the Plaintiff in the sum of $504,344.

42. Interest

Interest is at 3% per annum for pain, suffering and loss of amenities. The period of interest awarded is usually from the date of service of the writ to the date of judgment. The writ was issued on 16th May 1991. Interest on special damages is at 6% and is usually awarded from the date of the accident to the date of judgment.

43. Miss Cheng, however, argued that I should not award interests for the full period. She submitted that there was a long delay in the prosecution of this case from 11th October 1991 until January 1995. I have repeatedly said in the past that the Plaintiff's solicitors should proceed with personal injury cases diligently so that an early resolution could be achieved. I have heard no explanation for the delay. The delay may be due to either the fault of the solicitors or the Plaintiff personally. I agree that the Defendant should not bear interests for the delay. The interests I am going to award on PSLA will be from the date of the service of the writ to 31st December 1991 and from 1st January 1995 to date. The interests on special damage is from the day of the accident to 31st December 1991 and from 1st January 1995 to date. I shall award costs nisi of the action to the Plaintiff.

(P. Cheung)

Judge of the High Court