LEUNG YIU SHEUNG v. PA LING LOGISTICS CO LTD

DCPI 2458/2016

[2019] HKDC 546

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2458 OF 2016

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JUDGMENT

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INTRODUCTION

1.  This is a personal injury action where the plaintiff has sustained injury in an accident at work in the course of his employment with the defendant.  The defendant did not appear at the trial herein, despite notice of trial had been duly served on it.

BACKGROUND

The Accident

2.  The plaintiff was a driver cum delivery worker employed by the defendant.  On 20 August 2014, while in the course of his employment, the plaintiff, who was standing on the ground level, was unloading a cage of food from the back of a lorry belonged to the defendant (“the Lorry”), the cage suddenly fell from the tailgate, causing injury to his left ankle, left leg and bilateral shoulders (“the Accident”).

3.  A corresponding employees’ compensation action (DCEC 848/2015) between the plaintiff (as the applicant therein) and the defendant (as the respondent therein) had been settled out of court.  In that action, the plaintiff (as the applicant therein) received a sum of HK$111,575.00.  This has already taken into account of the advance payments received by the plaintiff (as the applicant therein) in the sum of HK$10,000.00.

4.  In the present case, the defendant has filed its “homemade” defence back in April 2017 and has, through its director, Mr Ling Nim Pan, attended a couple of the checklist review hearings before the PI Master.  However, from April 2018 onwards, the defendant was absent from all the other pre-trial hearings.

5.  The only witness who appeared at the trial was the plaintiff himself and his evidence was not challenged. Having read his witness statement (the contents of which have been adopted as his evidence in chief) and having had the opportunity to observe him when he gave evidence before me, I find the plaintiff to be a truthful and credible witness. I accept his evidence.

6.  Hence, based on the plaintiff’s evidence, I make the following findings regarding the Accident:-

(a)   the plaintiff was a driver cum delivery worker employed by the defendant;

(b)   on the date of Accident, at about 8:50 am, the plaintiff and his co-worker by the name of “Ah Ming” were delivering goods on behalf of the defendant to its customer in Langham Place, Mongkok, Kowloon;

(c)   the plaintiff and his co-worker were unloading goods from the Lorry at the parking area of the shopping mall at the time;

(d)   the goods, which mainly consisted of food items, were contained in mobile wired cages built on wheels;

(e)   there was a total of around 20 cages of food to be transferred from the back of the Lorry to the ground level in order to be delivered to the defendant’s customer located in the building;

(f)   in doing so, the rear tailgate of the Lorry was placed in an open and horizontal position;

(g)   Ah Ming was responsible for taking the cages from the inside compartment of the Lorry to the open tailgate and the plaintiff was responsible to stand on the ground level to receive the cages when the tailgate was lowered to the ground level;

(h)   in the course of doing so, Ah Ming pushed a cage of food weighing over 150 kg from the compartment to the tailgate; and before the cage came to a complete stop, he let go of his hands and turned his way back to the inside of the compartment;

(i)   as the cage had not been stopped and secured on the tailgate properly, it glided towards the direction of the plaintiff and fell onto him; and

(j)   as a result, the plaintiff sustained multiple injuries, including injury to his left ankle, left leg and bilateral shoulders.

DISCUSSION

Liability

7.  In terms of liability, I have little doubt that the defendant as the employer of the plaintiff should be held 100% liable for the Accident. 

8.  It is trite that the employer owes a duty of care to his employee both in tort and under the employment contract to take reasonable care of his employee’s safety in all the circumstances of the case.  The scope of duty includes the provision of competent staff, safe plant and equipment, a safe place of work and safe system of work.  Such duty is non-delegable: See General Cleaning Contractors Limited v Christmas [1953] AC180.

9.  In the present case, the defendant had only provided the Lorry to the plaintiff and his co-worker to unload the cages of goods from the Lorry to the ground level.  Besides that, there was no specific instructions given by the defendant to the plaintiff and his co-worker as to how to carry out their tasks.  It cannot be disputed that the appropriate way to unload the cages was to make use of the mechanical tailgate situated at the back of the Lorry, which was the method adopted by the plaintiff and his co-worker.  The mode of work adopted by the plaintiff and his co-worker was for Ah Ming to push the cages from the inside compartment to the tailgate; and after collecting 4 cages of such goods on the tailgate, the plaintiff who was standing on the ground level, would make sure they were placed in a proper position and then use the switches at the back of the Lorry to lower down the tailgate to bring the goods onto the ground level.

10.  The Accident happened during one of the transfers of the cages onto the tailgate.  On that occasion, after Ah Ming pushed the first cage onto the tailgate, he immediately let go of the cage and returned inside the compartment to fetch another cage of goods.  As the tailgate was tilted at a slight angle, the entire cage of goods started to roll towards the plaintiff’s direction.  As a result, the whole cage of goods fell from the tailgate onto the plaintiff, firstly on his forehead and left shoulder, causing him to lose his balance with his right shoulder hitting the ground first, and then the whole cage fell on its side onto the plaintiff’s left foot near his calf.

11.  In my judgment, there was an obvious and foreseeable risk that the cage, which was laden with heavy goods inside, would slide on the tailgate, unless it was properly stopped and secured. Unless it was restrained, it was reasonably foreseeable that the cage would slide and topple over the back of the Lorry and thereby causing serious injuries to people around, particular the plaintiff who was working at the back of the Lorry on the ground level.

12.  Further, there were practical and easily employable means to guard against the risk of the cage of goods from falling off from the tailgate.  They include:-

(a)   to instruct the workers that, after pushing each cage onto the tailgate, to ensure that it was completely stopped before letting go of the cage and continue with the work;

(b)   to lock the wheels of the cage after placing it onto the tailgate, whether by way of providing suitable locks or appropriate items like a stopper to stop the moving of the cage; and

(c)   to instruct the person pushing the cage from the compartment to communicate with the person working on the ground to hold onto the cage itself and to wait for the person to do so before letting go.

13.  The above risks can be easily guarded against by employing one of the above means.  In this case, it is clear that the defendant had not employed any of them at all to prevent the Accident from happening.  Under such circumstances, I am of the view that the defendant has failed to provide and maintain a safe system of work for the plaintiff and his co-worker.  Further, by failing to instruct the plaintiff and his co-worker to make sure the cage of goods would be stopped properly at the tailgate before they were to be lowered to the ground level, the defendant in my view has failed to provide adequate instructions, training and supervision for the plaintiff and his co-worker.  Of course, the defendant was not only required to provide proper instructions for the plaintiff and his co-worker on safety procedures, it was also required to ensure that such procedures were followed by them. In this case, it has failed to do so.

14.  In my view, the defendant was clearly in breach of its duty owed towards the plaintiff and therefore should be found negligent for causing the Accident.

15.  Equally and for the same reasons, the defendant would be liable for being in breach of the duty of care under the implied terms of the employment contract.

16.  Although the direct cause of the Accident could be said to have been due to the negligent of the plaintiff’s co-worker Ah Ming, as his employer, the defendant was vicariously liable for his act.

17.  In my view, the defendant also was in breach of its statutory duty under section 6(2) of the Occupational Safety and Health Ordinance, Cap 509 (“the OSHO”).  In particular:-

(a)   the defendant has failed to provide or maintain a system of work for unloading the cage that was, so far as reasonably practicable, safe and without risks to health of the plaintiff, contrary to section 6(2)(a) of the OSHO;

(b)   the defendant has failed to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to the health of the plaintiff in connection with the use, handling and transport of the cage, contrary to section 6(2)(b) of the OSHO; and

(c)   the defendant has failed to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the plaintiff, contrary to section 6(2)(c) of the OSHO.

Conclusion on liability

18.  In conclusion, I find the defendant negligent, in breach of its implied terms of employment towards the plaintiff and in breach of statutory duty under the OSHO.  I also find the defendant vicariously liable for the negligence of the plaintiff’s co-worker Ah Ming in the Accident.

19.  As contributory negligence was not raised nor had it been established against the plaintiff, I find the defendant 100% liable for the Accident.

Quantum

The injuries

20.  As a result of the Accident, the plaintiff was pinned down by the heavy cage of goods and was forced to lie on the ground.  He was admitted into the Accident and Emergency Department of the Kwong Wah Hospital (“KWH”) by ambulance immediately after the Accident. Physical examination revealed there was tenderness over the posterior aspects of both shoulders and left ankle.  There were also deformity and 2 lacerations with mild oozing over his left ankle.  X-ray revealed fractures of left tibia and fibula.  He was admitted to the orthopaedics department of KWH for further management.

21.  Doctors at the orthopaedics department of KWH found that the plaintiff had suffered from fracture of the distal shaft of left tibia and fibula with two 1 cm wounds over the fracture. Intramedullary nailing of the left tibia was performed on 21 August 2014.  The plaintiff was discharged 9 days later on 30 August 2014 with follow up treatment at the outpatient clinic.

22.  During the follow up at the outpatient clinic, X-ray showed progressive healing of the fracture with slight displacement.  However, the doctor also noticed there was increasing swelling and discharge over the plaintiff’s left leg by October 2014.  As a result, the plaintiff was admitted to the orthopaedic ward again on 30 October 2014. During that admission, an abscess was found over his left shin. Debridement was performed on 31 October 2014.  His wound was found to have been infected and antibiotics was prescribed as treatment.  On that occasion, the plaintiff stayed in the hospital for about 10 days and was discharged on 10 November 2014.

23.  The plaintiff was re-admitted to KWH again for the removal of the intramedullary nail on 5 December 2014.  He stayed in the hospital for 2 days on that occasion.  He was then transferred to Wong Tai Sin Hospital (“WTSH”) for convalescence. He continued to attend the follow up treatment.  The plaintiff was last seen by the doctors at KWH on 21 April 2015, which was 8 months after the Accident.  On that occasion, it was found that the plaintiff’s fracture had been completely healed.  The wound was also healed with localized tenderness.

24.  Besides staying in KWH, the plaintiff also stayed at the WTSH for a 6-week course of antibiotics. The plaintiff was only discharged from the WTSH on 13 January 2015.

25.  The plaintiff attended physiotherapy treatment on a total of 7 occasions spanning from 18 September 2014 to 31 March 2015.

26.  The Employees’ Compensation (Ordinary Assessment) Board (“MAB”) assessed the plaintiff loss of earning capacity caused by the injury sustained in the Accident at 1.5% only.

27.  As for sick leave, the plaintiff was given a total of 216 days by the doctors at the public hospitals.

The plaintiff present complaints

28.  As of today, the plaintiff still complains of the following disabilities resulting from the Accident:-

(a)   left leg numbness, stiffness and pain; unable to walk for a long period of time, difficulty in squatting and could only walk on stairs slowly; the pain extends to the left knee;

(b)   left leg weakness, difficulty in carrying heavy items;

(c)   occasional left leg cramps during sleep;

(d)   such disabilities have affected the plaintiff’s temper and social life in a negative way; and

(e)   presence of the multiple surgical scars at the left leg which included 6 scars at the shin and anterior knee, including a 3 cm scar at anterior knee and a 7 cm scar at distal shin.

Expert medical evidence

29.  Both parties agreed the plaintiff to be examined by one single joint orthopaedic expert.  That expert was Dr Tio Man Kwun Peter (“Dr Tio”).  Dr Tio made the following findings in his report:-

(a)   the plaintiff suffered from left leg fracture and soft tissue injury to both shoulders in the Accident.  The diagnosis of fracture left tibia and fibula was compatible and consistent with the mechanism of injury that the left leg fracture was solely attributable to the Accident.  The plaintiff also sustained contusion injury of both shoulders with soft tissue involvement in the Accident;

(b)   for his left leg fracture, he was given surgical fixation of his left tibia and fibula with IM nail. Unfortunately, such operation was complicated by wound infection.  He was subsequently admitted for wound drainage and debridement, and admitted again for implant removal a few months later due to continuous infection.  Moreover, he was put on a course of antibiotics for his wound infection, and referred to physiotherapy and occupational therapy for several months for rehabilitation;

(c)   the treatments provided were considered to be reasonable and appropriate.  Though it was stated that the plaintiff had defaulted physiotherapy treatment, the overall recovery should not be affected;

(d)   upon examination of his left knee, there were multiple surgical well-healed scars and wounds.  He was noted to have bony deformity and prominence anterior distal left leg.  Mild left knee stiffness over flexion and mild left ankle stiffness over dorsiflexion and plantarflexion were also noted.  Fracture left tibia and fibula healed with mild deformity;

(e)   his current complaints included left leg numbness in terms of cramps and both shoulders pain.  His current complaints were likely to be an aftermath of the injuries he sustained.  The overall recovery was reasonably satisfactory;

(f)   orthopaedically, the plaintiff could be considered as having reached maximal medical improvement, and does not need any further active treatment;

(g)   for his current condition, he should be able to resume his pre-injury duty as truck driver.  However, with residual left leg symptoms, he is expected to have reduced efficiency and capacity on prolonged driving and heavy object lifting and carrying.  He is advised to take regular breaks from work and to seek help from co-workers in handling heavy delivery;

(h)   the prognosis is considered to be satisfactory with residual stiffness over the left knee and residual both shoulders pain.  His endurance on prolonged walking, standing, squatting and heavy manual work etc could be adversely affected.  He will also have limitation on heavy lifting and carrying;

(i)   the sick leave of those endorsed by the MAB (ie from 20 August 2014 to 4 December 2014, and from 12 January 2015 to 30 April 2015) should be considered to be reasonable and appropriate; and

(j)   the degree of whole person impairment and the loss of earning capacity for his left leg and both shoulders injury are considered to be 2-2.5%.

30.  The opinion of Dr Tio was not challenged by the defendant.

Damages

(A)   Pain, suffering and loss of amenities (PSLA)

31.  In this case, the plaintiff suffered from fracture of the left tibia and fibula; contusion injury of both shoulders with soft involvement.  For the left leg fracture, he underwent an operation of fixation of the left tibia and fibula with intramedullary nail. The operation was complicated by wound infection, for which the plaintiff was subsequently admitted again for wound drainage and debridement.  He was admitted into hospital again for the third time for implant removal a few months later due to the continuous infection.  He was put on a course of antibiotics for his wound infection and received physiotherapy and occupational therapy treatments for several months as part of his rehabilitation.  Although the fractured left tibia and fibula were healed, the injury had left him with mild left leg deformity, mild left knee stiffness and mild left ankle stiffness. The Accident also left him with multiple surgical scars.  At present, the plaintiff still suffers from left leg numbness in terms of cramps and shoulder pain on both sides.  In total, he was hospitalized 3 times for a total of 9 weeks.  Sick leave was given to him from 20 August 2014 to 30 April 2015, a total period of 8.4 months.

32.  Mr Li who represented the plaintiff at the trial before me referred to the following 3 cases where victims suffered from similar injuries:-

(i)   In Chan Shing Ching v Hong Kong District Security Ltd and Another DCPI 910/2005 (19 June 2008), the plaintiff suffered fracture at his right tibia and fibular.  Wound debridement and application of external skeletal fixator was done, which was followed by the removal of external fixator and intramedullary nailing of the right tibia. After discharge, he was admitted again for treatment of skin graft wound infection.  He was confined to a wheelchair for 4 months after the accident. Thereafter he had to walk with a walking frame or walking sticks.  Sick leave was granted for about 11 months.  A PSLA award at HK$350,000 was made in June 2008. With reference to the composite consumer price index, inflation at 25% was recorded from June 2008 to September 2015. The PSLA award today would be at or about HK$450,000.

(ii)   In Ko Chu Keung v Temmuk Engineering Co Ltd And Another HCPI 1319/2016 (12 December 2018), the plaintiff who suffered from a fracture of the right tibia and fibula, with a 10 cm x 4 cm contaminated open wound over the right leg with exposed bone.  Wound irrigation, tetanus prophylaxis, intravenous antibiotics and skin traction were given.  Operation under the general anesthesia with intramedullary nailing of the right tibia and plating of the right fibula was performed.  A second debridement operation was performed in view of the contaminated open fracture wound.  Subsequently, the implant and the stitches were removed.  A total sick leave of 24 months was granted.  A PSLA award of HK$650,000 was made in December 2018.

(iii)   In Sukhdeep Singh v Chow Kin Hung And Another HCPI 202/2010 (21 September 2011), the plaintiff who suffered a fractured distal tibia and fibula of his right leg in the accident, underwent surgery for open reduction and internal fixation of the fibula and nailing of the tibia.  Bone was taken from his right knee for grafting.  Later, he was re-admitted for the removal of the surgical implant due to continue pain and discomfort over the right knee area where the bone graft had been taken.  A total sick leave of 20 months was granted.  A PSLA award of HK$300,000 was made in September 2011 which would be equivalent to about HK$365,000 today.

33.  I accept Mr Li’s submission that the plaintiff injuries in this case are in line with those suffered by the plaintiff in case (i) above, namely, Chan Shing Ching, supra. In my view, his injuries are much less serious than case (ii) but much more serious than case (iii) above.

34.  Having taken into account of the PSLA awards in the above cases and the level of inflation since those decisions were made, I am of the view that the appropriate PSLA award in this case should be at HK$450,000.

(B)   Pre-trial loss of earnings

35.  At the time of the Accident, the plaintiff was employed by the defendant as a driver cum delivery worker.  He earned a basic monthly salary of HK$15,000 plus overtime payment of HK$40 per hour.  He was making an average of HK$15,370 per month. This is supported by the list of earnings filed on behalf of the defendant in the associated employees’ compensation proceedings back in December 2015.

36.  I accept the plaintiff’s submission that, but for the Accident, he would have continued with his employment with the defendant and continued be able to earn at least HK$15,370 per month on average plus Mandatory Provident Fund (“MPF”).  I should therefore adopt a sum of HK$15,370 plus MPF for the purpose of calculating his pre-trial loss of earnings.

37.  Due to the Accident, the plaintiff was granted sick leave from 20 August 2014 to 4 December 2014 and from 12 January 2015 to 30 April 2015. These included the periods when he was hospitalized in KWH and WTSH. 

38.  I further accept Dr Tio’s opinion that the sick leave was reasonable and appropriate in view of the plaintiff’s injuries.

39.  At the end of his sick leave, the plaintiff was not able to return to his pre-accident employment with the defendant.  This was not surprising given the heavy nature of the work which the plaintiff was doing. He remained unemployed for about 2.5 months until mid-July 2015.  In my opinion, it is reasonable for the plaintiff to take some time to find alternative employment given the serious nature of the injuries and the length period for him to recover from them.  Hence, for the period from 20 August 2014 until the mid-July 2015, I would award the following sum as pre-trial loss of earnings:-

HK$15,370 x 10.9 months x 1.05 (MPF) = HK$175,909.65

40.  According to the plaintiff, since around mid-July 2015, he was able to find casual employment first as a delivery worker, then later on as a lorry driver cum delivery worker.  I accept the plaintiff’s evidence on this and find that:-

(1)   from mid-July 2015 to January 2017: he worked as a delivery worker earning a daily wage of HK$500 to HK$600 per day and able to work about 18 to 20 days per month, hence, earned about HK$10,450 per month on average (HK$550 x 19 days);

(2)   from about February 2017 to date of trial (30 January 2019): he worked as a lorry driver cum delivery worker at a daily wage of HK$700 per day and worked for about 20 to 22 days per month, hence, earned about HK$14,700 per month on average (HK$700 x 21 days).

41.  The plaintiff’s inability to resume his pre-accident job is supported by the opinion of Dr Tio.  In his report, Dr Tio opines that the plaintiff expected to have reduced efficiency and capacity on prolonged driving and heavy object lifting and carrying.  He is advised to take regular breaks from work and to seek help from co-worker in handling heavy items.  Further, Dr Tio opines that the plaintiff’s endurance on prolonged walking, standing, squatting and heavy manual work will be adversely affected as a result of the Accident.  He also will experience limitation on heavy lifting and carrying.

42.  In view of Dr Tio’s opinion, I consider it is reasonable for the plaintiff to resume employment at the lighter capacity as a delivery worker and/or lorry driver with some delivery duties, and at a reduced number of days, due to his reduced efficiency and capacity.

43.  In the circumstances, I would award partial loss of earnings during the pre-trial period as follows:-

(1)   from mid-July 2015 to January 2017:

(HK$15,370 – HK$10,450) x 18.5 months x 1.05 (MPF) = HK$95,571

(2)   from February 2017 to 30 January 2019:

(HK$15,370 – HK$14,700) x 24 months x 1.05 (MPF) = HK$16,884

Sub-total: HK$112,455.

44.  Therefore, the total pre-trial loss of earnings which I would allow from the date of the Accident to date of trial in this case will be at HK$288,364.65 (HK$175,909.65 + HK$112,455).

(C)   Loss of earning capacity

45.  The plaintiff is now 65 years old.  He is still able to work as a lorry driver with some delivery duties on a casual basis, earning about HK$14,700 per month on average.

46.  I accept his evidence that he has no plan to retire at this stage.  Despite the serious injuries sustained in Accident, the plaintiff appears to me to be otherwise a fit and healthy 65 years old.  He says that he would aim to work for at least 2 to 3 years before his retirement.  In my experience, it is not uncommon to see men of his age to work as driver and/or delivery worker in Hong Kong, sometimes well into their 70s. I accept Dr Tio’s opinion that the plaintiff now suffers from reduced efficiency and capacity at work and he has to take regular break from time to time.  In my judgment, the plaintiff would face with a real risk of not able to secure or maintain his current employment and therefore would be handicapped and disadvantaged in the open labour market.

47.  In the circumstances, I consider a figure of HK$45,000, which represents about 3 months of his current monthly income, is reasonable to represent the loss of earning capacity in this case. I would allow such sum accordingly.

(D)   Special damages

48.  In the light of the evidence produced by the plaintiff at trial, I would accept his claim for medical expenses at HK$6,840, travelling expenses at HK$500 and tonic food at HK$1,000 as reasonable amounts. I would award a total of HK$8,340 as special damages in this case.

(E)   Interest

49.  In this case, I would also award interest on general damages at 2% per annum from the date of issue of writ (ie 25 November 2016) up to the date of judgment.  I would also award interest on special damages and pre-trial loss of earnings at half of the judgment rate from the date of the Accident (ie 20 August 2014) up to the date of judgment.

(F)   Employees’ compensation

50.  The associated employees’ compensation case had been settled between the parties without going to trial. Under the consent order, the plaintiff had received a sum of HK$111,575 in full and final settlement of that claim.  The plaintiff has given credit to such sum in this action.

(G)   Summary of calculation

51.  In summary, I would make the following award of damages in favour of the plaintiff in this case:-

(A) PSLA	HK$450,000.00
(B) Pre-trial loss of earnings	HK$288,364.65
(C) Loss of earning capacity	HK$45,000.00
(D) Special damages	HK$8,340.00
	HK$791,704.65
(E) Less: employees’ compensation	(HK$111,575.00)
Total:	HK$680,129.65 ==============

Costs

52.  The plaintiff is entitled to the costs of the action.  I will make an order that the defendant do pay the plaintiff costs in this case, such costs to be taxed if not agreed.