CHAN YUET KEUNG v. HARMONY (INTERNATIONAL) KNITTING FACTORY LTD

HCPI 144/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 144 OF 2009

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J U D G M E N T

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1.  This is a slip and fall case. The plaintiff alleged that he slipped and fell in the course of work on 29 June 2006. The defendant, his employer, denies liability and disputes quantum.

LIABILITY

2.  The defendant operated a textile weaving factory at Factory B and D, 19^th Floor, Block 1, Tai Ping Industrial Centre, 57 Ting Kok Road at Tai Po in the New Territories.  The plaintiff was employed by the defendant as a supervisor at the factory and his responsibilities included supervising the work of the machine attendants of the weaving machines at the factory.  These machines were fully automated and computerized and weaved different coloured yarn that was fed into the machine in order to be to knitted into fabric pieces which could later be stitched together to make an upper garment.  Typically, the machines would knit a fabric piece which would form the front of the garment in question, another piece which would form the back, and two more pieces which would form the two sleeves of the garment.  One of the duties of the plaintiff was to stretch the fabric piece generated by the machine, against a measuring tape that was fixed to the front of the machine, to ensure that the fabric piece, when stretched, conformed to the specification of the particular batch of fabric pieces being woven by the machine in question. 

3.  The machines operated around the clock and the defendant had arranged for its employees to work in two shifts to oversee the operations of the factory.  The plaintiff used to work on a night shift but had recently been transferred to work on the day shift which commenced at 8 a.m. in the morning.  According to the plaintiff, the accident occurred at 8:15 a.m., some 15 minutes after he started work on the morning of 29 June 2006. 

4.  As can be seen from the floor plan of the factory premises at p. 500 of the Trial Bundles, the weaving machines were laid out in rows on the factory floor.  The location of the machines was identified by rectangles which were marked on the floor plan.  The number of the machine it represented was printed on each rectangle and, as can be seen from the plan, there were 125 weaving machines on the floor in question. There were two supervisors on duty at each shift, each responsible for more than 60 machines. 

5.  The fabric pieces, when completely knitted by the machine, would be ejected by the machine and fall onto a tray at the front of the machine.  At about 8:15 a.m. on the morning in question, the plaintiff had taken a fabric piece from the tray and had stretched and measured it against the measuring tape on the front of machine No. 120.  Having completed that work, he turned towards machine No. 113.  The two machines were facing each other and the gap between the two machines was about 30 inches.  He took one or two steps turning towards machine No. 113 when one of his feet slipped and he fell backwards.  His buttocks landed on the floor first and then his whole body fell back and lay flat on the floor. 

6.  It is not in dispute that the factory floor was coated with an anti-slip material and that the plaintiff had been wearing rubber-soled shoes at the time.  After he fell, a female machine attendant helped him to get up.  He then saw a piece of flattened yarn fragment, about the size of a tennis ball, about a foot away from the sole of his shoe.  The plaintiff believed that he fell because he had inadvertently stepped on this fragment of yarn which was slippery. 

7.  The plaintiff was subjected to a searching cross-examination by Mr Patrick Lim who appeared on behalf of the defendant.  He was not shaken on his version of events.  I accept his testimony and I find that he fell because he inadvertently stepped on a fragment of yarn which caused him to slip and to fall in the manner as he described.  He slipped and fell, notwithstanding that he was wearing rubber-soled shoes and notwithstanding that the floor was coated with a non-slip material, because the fragment of yarn was slippery and caused him to lose his footing on the floor.  In making these findings, I also had regard to the fact that the plaintiff had attended the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital, shortly after the accident, where he had given a history of having slipped and fallen at work that morning.  

8.  It was common ground that these fragments of yarn were created when the yarn became jammed in the yarn transfer device which fed the yarn into the weaving machine.  When that happened, the thread would break, and the alarm would sound, and the weaving machine would stop operation.  However, the yarn transfer device would continue to spin and create a ball of yarn fragments.  There was disagreement between the plaintiff and Mr Mo Ka Shun, the defendant’s manager who gave evidence for the defendant, regarding frequency and the size of these yarn fragments. Mr Mo said that this breakage of yarn and the creation of these yarn fragments occurred very occasionally, only about once per machine per shift and that the ball of yarn created would not exceed a size of a Hong Kong 5-dollar coin.  The plaintiff said that the ball of yarn produced this way was the size of a tennis ball.  Both the plaintiff and Mr Mo said that the machine attendant would pick up the ball of yarn from the yarn transfer device and discard it in the plastic dustbin that was placed at the front of every machine, next to the tray which received the finished woven fabric pieces.  The plaintiff said that this bin was usually full to over filling by the end of the night shift, and that a lot of yarn fragments spilled over onto the floor. Mr Mo’s evidence, on the other hand, was that the dustbin was never full and that the factory floor was always clean and free of yarn residues and rejects. 

9.  I have carefully considered the evidence of the plaintiff and Mr Mo and conclude that I accept the evidence of Mr Mo as being inherently more probable.  I find that the evidence of the plaintiff contained elements of exaggeration, particularly in relation to the extent of woollen residues on the factory floor, the difficulty he faced in stretching the fabric pieces to ensure that they were of the correct size, and the need for him to push heavy trolleys of yarn reels to the factory floor during the night shift on the occasions when the machines worked very efficiently and the yarn allocated to them was all used up.  Indeed, if the factory floor had been full of these yarn residues, the plaintiff should have been aware of this and should have instructed the machine attendants to clear them away or taken care not to step on them when he was attending to his work that morning on the machines in question.  On the contrary, the plaintiff’s evidence, which I accept, was that prior to the accident, he did not see any yarn residues on the floor.  He also said that he did not pay attention to that.  Even so, if there were as many yarn residues on the floor as he claimed, the plaintiff should have become aware of their presence. 

10.  However, I was impressed by and accept the evidence of the plaintiff when he said :

“The machine attendant would pull out the residue at the yarn transfer device. He would aim to throw it into the rubbish bin. If it landed in the bin, fine; but, if not, he would not pick it up from the floor and put it back into the bin.”

11.  That evidence had a ring of truth about it and I find, on a balance of possibilities, that this was what occurred that morning, that the plaintiff inadvertently stepped on a piece of yarn fragment lying on the floor in the gap between the two machines and slipped and fell as a result.  To his credit, Mr Mo was very frank and readily conceded that, whilst the floor was coated with a non-slip surface and therefore was not slippery, the yarn fragments, which were made of yarn fibres that had been waxed, were slippery. 

12.  Mr Mo was very clear in his evidence that the machine attendant who pulled out the fragment of yarn from the yarn transfer device should then put that fragment into the dustbin.  I find that the machine attendance who worked during the night shift was negligent in causing or permitting the yarn fragment to fall on the floor in the vicinity of machine No. 113.  The plaintiff slipped and fell as a result of that negligent conduct for which the defendant is vicariously liable. 

13.  It is understandable why Mr Mo said that the machine attendants should put the fragments of yarn into the dustbin.  The yarn fibres had been waxed to facilitate the weaving process.  Mr Mo agreed that the ball of rejected yarn fibres was waxy and slippery.  The machine attendant dealing with these yarn fragments owed a duty to his or her co-employees not to cause or permit the yarn fragments to fall on the floor and to pose a hazard to other employees who might inadvertently step on them and slip and fall as a result. 

14.  In the light of these findings, the evidence about other sources of yarn fragments or residues is irrelevant to the accident in question and I need not be concerned about that evidence.  I must, however, address the plaintiff’s case that the defendant was negligent in failing to provide a safe and proper system of cleaning the factory premises. 

15.  There was undisputed evidence that two cleaners had been employed by the defendant to clean the entire factory during the day shift, one starting each day’s work at 8 a.m. and the other at 9 a.m.  There were no cleaners employed to clean the factory premises during the night shift hours, i.e. from 8 p.m. to 8 a.m. the following morning.  I do not accept the evidence of the plaintiff that the plastic bins at the front of the weaving machines were overflowing by the end of the night shift and that a failure to have cleaning workers during the night shift resulted in a hazardous situation for the employees on the factory premises, with the floor of the premises being littered by yarn fragments as well as yarn threads and incomplete partially knitted fabric pieces. I accept the evidence of Mr Mo that there was no need to hire cleaning workers for the night shift and that all the yarn fragments and yarn residues collected from all the dustbins on the factory floor would not fill up an ordinary carton box. 

16.  There was some evidence given about the need to use compressed air hoses (also referred to as air guns) to clean the machines at the beginning of the morning shift and which process resulted in a lot of dirt and yarn threads being blown onto the floor.  However, by the time of the closing submissions, it became clear that this process had nothing to do with the accident that occurred.  This process resulted in dirt and yarn threads being deposited on the floor in the vicinity of the machines being “hosed”.  I accept the evidence of Mr Mo, and the defence case, that the cleaning workers employed would clean, every morning, the floor underneath the machines and clear the dustbins at the front of each machine, as well as clear away the dirt and yarn residues generated by the hosing process. 

17.  I do not find any contributory negligence on the part of the plaintiff.  He was intent on his job at the time and he inadvertently stepped on the yarn fragment which caused him to slip and fall. Ironically, if I had accepted his evidence that the factory floor was littered with such yarn fragments, I would have found him guilty of contributory negligence for failing to look out for these yarn fragments, when he moved from one machine to the other in the course of his work, and for failing to instruct the machine attendants to clear them away. 

QUANTUM

(1)     Injuries and Treatment

18.  The plaintiff attended the Accident & Emergency Department of Alice Ho Miu Ling Nethersole Hospital shortly after the accident.  As recorded in the report from the Accident & Emergency Department dated 10 January 2007, the plaintiff gave a history of slip and fall with low back contusion.  Examination revealed stiffness of low back.  X-ray of lumbar spine was normal.  He was discharged home at 10:40 a.m. and granted sick leave up to 2 July 2006.  He returned to the Accident & Emergency Department on 3 July 2006.  Examination revealed tenderness at his lower back around L4/5 region.  His back was stiff with decreased range of movement.  There was no neurological deficit over his lower limbs.  He was given an intramuscular analgesic and discharged with referral to physiotherapy. 

19.  From 7 July to 5 August 2006, he was seen and received medication for pain relief at the Tin Shui Wai Health Centre.  From there, he was referred to the orthopaedic clinic of Alice Ho Miu Ling Nethersole Hospital and seen on 8 August 2006.  At the follow up on 3 October 2006, the plaintiff reported an overall 50% improvement of his low back pain and his main complaint was inability to lift heavy loads as required by his work.  Because of the slow progress, an MRI scan was booked and the plaintiff referred to the pain specialist clinic.  At a visit on 2 January 2007, the plaintiff reported that his back pain improvement was static, with on and off exacerbation, and that his walking tolerance was 30 minutes. 

20.  Eventually, an MRI scan was arranged for him in June 2007.  The report of the radiologist was that that the MRI scan showed mild disc degeneration present at L5/S1.  At L5/S1, there was a central, left paracentral disc extrusion.  The thecal sac was indented anteriorly.  The central canal was narrowed.  The extruded disc was compressing on the left descending nerve root.  The exiting nerve roots were not compressed.  No facet joint arthrosis was evident.  There was no prolapsed disc in the rest of the lumbar levels and no visible spondylosis. 

21.  Dr Johnson Lam, the orthopaedics specialist, was appointed by both parties as the single joint expert in this case and prepared a report on the plaintiff after his examination and assessment of the plaintiff on 15 May 2009.  In his report dated 18 May 2009, Dr Lam concluded that the plaintiff had suffered soft tissue injury to his back which was consistent with the mechanism of injury described by him, namely, that he had stepped on some waste bits of textile and fell back and landed on his buttocks and low back area.  He referred to the MRI scan taken in June 2007.  He also found, from the x-rays taken at his assessment, that mild degenerative changes with small osteophytes around L3/4 and L4/5 discs were present.  On the other hand, while the L5/S1 disc space was reduced, there was no osteophyte noted.  Taking into account the MRI and x-ray findings, Dr Lam was of the opinion, and which I accept, that it was likely that the subject injury was an important causal factor of the disc extrusion at L5/S1 level, resulting in persistent pain in the low back area. It was also probable that the subject injury aggravated the pre-existing degeneration of the back (especially around L3/4 and L4/5 discs), resulting in persistent low back pain. 

22.  In his supplemental report dated 6 April 2010, Dr Lam was of the opinion that 10% of the plaintiff’s current condition should be apportioned to the pre-existing degeneration in his back. 

23.  At the time of his assessment in May 2009, he found that there was some muscle guarding but no muscle spasm at the lumbar region.  There was mild reduction in straight-leg-raising on the left side, but there was no objective neurological deficit on physical examination.  The overall findings suggested some residual back pain and disability of a moderate degree. 

24.  Dr Lam concluded that the plaintiff suffered an 8% permanent impairment of the whole person.  Activities that cause an increased physical demand on the back were likely to cause discomfort or even pain in the back.  Those activities included prolonged standing, frequent lifting of heavy objects or bending of the back, and other heavy manual labour requiring exertion of the back.  However, the plaintiff was independent in most activities of daily living including self care and hygiene, although he probably had some difficulty in cutting toenails. 

25.  I have no hesitation in accepting the opinion of Dr Lam on these matters.  I have taken account of the video surveillance of the plaintiff which showed that the plaintiff walked normally and even briskly.  That evidence does not cause me to doubt that the plaintiff suffers from a genuine back problem. 

(2)     PSLA

26.  I was referred to a number of authorities on the award of PSLA in back cases.  Relying on the authorities he had cited, Mr Albert Yau for the plaintiff asked me to award $400,000 as damages under this head.  Mr Patrick Lim for the defendant said that the appropriate award should be $200,000, discounted by 20% for pre-existing degeneration, to produce an award of $160,000. 

27.  I have reviewed the various authorities cited to me.  I find assistance from the following cases and I have been guided by them on my assessment of the proper award for damages for PSLA :

(a)     San To Po Yuk v Wong Kwong Painting Company Limited [2004] 2 HKLRD 169 at 178E-179I (CFI) (PSLA: $350,000);

(b)     Shan Nisar v Wai Kit Engineering Co. Ltd and others HCPI1092/2003, 11 April 2005, Sakhrani J (unreported) (CFI) (PSLA: $300,000, see paragraphs 50 to 81 of the judgment);

(c)      Chan Chi Shing v Chan Shu Kuen [2009] 2 HKLRD 259 at 264 – 265 (DC) (PSLA: $350,000);

(d)     Gurung Bhim Bahadur v Cheung Ying Construction Engineering Limited, HCPI746/2005, 18 January 2010, Master de Souza (unreported) (CFI) (PSLA: agreed at $300,000: see paragraphs 8 to 11, 14 to 26 of the judgment); and

(e)      Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Company (a firm), HCPI850/2008, 9 February 2010, Master J Wong (unreported) (CFI) (PSLA: $350,000, see paragraphs 5 to 9 of the judgment). 

28.  I assess the award for damages for PSLA in the present case in the sum of $300,000.  I would have awarded a slightly higher amount but for the fact that there was pre-existing degeneration of his back at the time of the accident. 

(3)     Loss of Earnings/Loss of Earning Capacity

29.  Dr Lam offered the following opinion on the plaintiff’s employment capacity :

“Employability: Referring to Mr Chan, his pre-accident job, his pre-accident job as textile factory (knitting) worker required working 12 hours a day (including 1 hour for lunch). He said in this job he needed to stand and walk for long hours, and he needed to repair/service machines which required exertion. He said when the machines were not running smoothly, he would be very busy all day. Occasionally he needed to squat in repairing machines. He said he also needed to push heavy objects (several hundred lbs in weight) on trolleys. My overall opinion is that Mr Chan would have difficulty in returning to the full duties of this job. As an alternative, he should be able to work in jobs requiring lighter physical demand on the back would be more suitable. Examples include being a salesperson selling light goods, a driver, or a security guard in posts that allow him to alternate between sitting, standing and walking.”

30.  Dr Lam referred to the period of sick leave granted to the plaintiff, which was for the period from 29 June 2006 to 18 October 2007 and then again from 20 October 2007 to 17 April 2008.  After considering the severity of injury, the need for rehabilitation, the progress of treatment, and the pre-accident job demand, Dr Lam formed the opinion that the duration of sick leave approved by the plaintiff’s treating doctors who assessed him from time to time was appropriate. 

31.  Mr Patrick Lim for the defendant submitted that the opinion of Dr Lam on these issues was not binding on his client notwithstanding that he was a single joint expert for both parties. Mr Lim submitted that his client had clearly disputed the plaintiff’s case on the job demands on his pre-accident work.  According to the witness statement of Mr Mo Ka Shun, the plaintiff’s work was supervisory in nature.  He was not required to change the cotton yarn reels of the knitting machines.  An external company had been engaged to undertake that task.  With respect of maintenance work, minor problems would be fixed by the individual machine attendants.  Each knitting machine came with its own computer and the machine attendant would use the computer to rectify minor problems.  They were required to report to the supervisors, including the plaintiff, in case more serious problems arose, and the supervisors would then contact technicians from an external company to carry out the repair works.  The extent of the physical demands of the job as supervisor was clearly in dispute between the parties and an issue which I have to resolve in these proceedings.  It is also common ground that I am not bound to accept the opinion of Dr Lam on these issues.  Accordingly, I permitted the defendant to proceed on the basis that it was not bound by the opinion of the single joint expert on these issues notwithstanding that it had not sought his opinion on the plaintiff’s ability to return to his pre-accident work which, as asserted by the defendant, was largely sedentary in nature.  I shall address below to what extent such opinion evidence is admissible in any event and, if admissible, to what extent, if any, it is binding on the trial judge. 

32.  The plaintiff gave evidence that his work as supervisor was not light duty.  He explained that it required strength to stretch the fabric piece to its fullest extent. 

33.  The plaintiff also said that if the yarn became jammed inside the machine, the panel at the top of the machine had to be lifted so that the offending material could be removed.  This was heavy work because the screws of the panel, similar to those that can be seen on the photograph at p.680F, had to be removed and the panel, which was heavy, had to be lifted up.  He also gave evidence that there were many occasions when the need arose for him to push heavy trolleys of yarn reels to the factory floor during the night shift.  This occurred on the occasions when the machines worked very efficiently, without stoppage, and the yarn reels allocated to them were all used up. 

34.  Mr Mo’s evidence, on the other hand, was that the work of a supervisor was light duty.  He adopted what he had said in his witness statement about the duties of the supervisor, and he produced two garments, one knitted with a broad needle and the other knitted with a fine needle, which were typical of the garments made from the fabric pieces produced by these machines.  He demonstrated how they had to be stretched to ensure that the fabric piece was produced according to specification.  He explained that it was not necessary to stretch them to their fullest extent as that might cause the knitted yarn threads to break.  They had to be stretched in order to see whether or not their size conformed to the size mentioned in the specification.  About 3 lbs of strength or force was required to stretch these fabric pieces.  He also said that odd job workers transported the yarn reels in trolleys to the factory floor during the day shift.  These odd job workers were not employed during the night shift because there was no need to transport the yarn reels at night as everything would be placed and positioned during the day time shift.  He also said that the supervisors were not required to open up the panel of the machines and that he had never seen anyone do that.  When a machine stopped and had to be restarted manually, there was a computer function which could be utilized for the partially woven fabric to be ejected from the machine.  Apart from utilizing that function, nothing else had to be done for the partially woven fabric piece to be ejected from the machine. 

35.  I accept the evidence of Mr Mo who gave evidence in a straight forward manner.  His evidence appeared to me to be inherently more probable.  I gained the impression from viewing the photographs of the factory that the factory was well organised and efficiently run.  The floor of the factory appeared to me to be clean, and the trolleys containing the knitted fabric pieces and the yarn reels had been arranged and placed in a very orderly fashion.  The machines depicted on the photographs of the factory appeared to me to be very sophisticated machines requiring very little human intervention for them to carry out their intended functions. I also tried to stretch the two garment exhibits produced to me.  It was quite easy to stretch the lighter garment that had been knitted with a fine needle.  The heavier garment, knitted with a broad needle, required more effort.  Mr Mo’s description of the force required, about 3 lbs of strength, is a good estimate of the force required to stretch the heavier garment. 

36.  I accept the evidence of Mr Mo on the nature of the work of the supervisor and I find that the plaintiff was exaggerating the difficulties inherent in that job. 

37.  I conclude that the plaintiff could have returned to his pre-accident employment after the expiry of his sick leave.  In fact, he did return to work for the defendant but was made redundant because the defendant was relocating its factory premises in Dongguan, China. Mr Mo gave evidence that Hong Kong residents were recruited to work as supervisors in the Dongguan factory at a pay higher than that they would have received for the same work in Hong Kong because working in China, away from one’s home and family in Hong Kong, was regarded as a hardship.  The plaintiff gave evidence that he did not want to leave his home and family in Hong Kong to work in China. 

38.  The plaintiff gave me the following history of his working life.  He started work at the age of 18 doing interior decoration work as a painting worker and was accredited by the Construction Training Authority.  He had worked as a painter for almost 20 years up to the age of about 36.  At that time, SARS had struck Hong Kong and the construction industry was depressed.  He therefore decided to move to another line of work and, in 2003, started to work as a machine attendant of weaving machines. He worked for a weaving factory in Hong Kong.  He worked for that factory from April 2003 to September 2005.  In July 2004, he was promoted to the position of supervisor and in September 2005, he commenced work for the defendant as a supervisor.  When his sick leave expired in April 2008, the plaintiff returned to work for the defendant but was made redundant.  He then tried a number of occupations, not very successfully, before taking up employment as a marker in a billiard saloon, which is the job that he currently holds, earning substantially less than the earnings of a supervisor. 

39.  Although I have found that the plaintiff can return to work as a supervisor in a weaving factory, I do not go so far as to find that he failed to mitigate his loss by failing to take up employment as a supervisor in China.  With the continual relocation of Hong Kong’s textile industry to China, work as a supervisor in Hong Kong is obviously more and more difficult to find.  However, the plaintiff was perfectly entitled to choose to stay and live with his family in Hong Kong, and to work in Hong Kong, and I find that it was reasonable for him to make that choice. 

40.  In my judgment, the loss of the plaintiff’s job as a supervisor and the consequent reduction in his salary in alternative employment was not caused by the accident he suffered, but by redundancy and the relocation of the defendant’s factory to China.  The question of the responsibility for such loss is not, in my judgment, to be resolved by reference to the duty to mitigate, i.e. was it reasonable for the plaintiff to travel back and forth to China to work as a supervisor, but by reference to the more basic question: did the tort complained of in the present case cause this specific loss, namely, the reduction in the plaintiff’s earnings.  The answer, clearly and simply, is no.  The loss has been caused by changing market conditions and the consequent effect of those changes on the labour market in Hong Kong.  Even if he had not suffered this accident, the plaintiff would not have gone to work at the defendant’s factory in Dongguan, after its relocation there, but would have tried to find alternative employment in Hong Kong. 

41.  As the plaintiff is able to return to work as a supervisor but the market conditions in Hong Kong are such that such work is not readily available for him, I conclude that I cannot award damages for future loss or earnings on a multiplier/multiplicand basis by taking the his pre-accident earnings as a supervisor and deducting from that his current earnings and by applying a multiplier to the difference.  However, that is not to say that the plaintiff has not suffered a loss of earning capacity.  The injury he sustained in the accident has disabled him from returning to any form of heavy manual labour.  He used to earn $20,000 a month as a painter before changing his line of work and performing lighter duty as a machine attendant and later as a supervisor.  If the accident had not occurred, and he had been made redundant, as a result of the relocation of the defendant’s factory to Dongguan, he might have chosen to go back to his former employment as a painter.  That, of course, is only a possibility and not a certainty, not even a probability, given the fact that he had a pre-existing degenerative condition of his back and had gained weight in recent years, and given the fact that he had made a decision to change his employment to perform lighter work. 

42.  Even so, the loss of earning capacity that the plaintiff has suffered is a real loss and ought to be compensated by a global award of damages.  Similar awards have been made in cases such as Choy Wai Chung v Chun Wo Construction & Engineering Co. Ltd, HCPI No. 605 of 1999, Beeson J; 16 December 2003, where an award of $600,000 was made as damages for loss of earning capacity to a construction site engineer who was office-bound after the accident he had suffered and no longer able to work outdoors, and in Yau Shui Ming v Excellent Development Ltd. DCPI No. 47 of 2002, Lok DJ; 28 May 2003, where $150,000 was awarded to the plaintiff who was earning an income equivalent to his pre-accident income in alternative employment after the accident, but who had lost his post-accident job as a result of the economic downturn associated with the outbreak of SARS. Having regard to the plaintiff’s previous income as a painter in the region of $20,000 per month and his earnings as a supervisor at the defendant’s factory in the sum of $15,088 per month, and having regard to his current age of 39, I assess damages for loss of earning capacity on a global basis in the sum of $200,000 in the present case. 

43.  How much should I award as damages for pre-trial loss of earnings?  On the basis that the pre-accident employment of the defendant required him to stand and walk for long hours, to repair and service machines which required exertion and which also required him to squat, and the requirement to push heavy objects on trolleys, Dr Lam formed the opinion that the duration of sick leave, approved by the plaintiff’s treating doctors who had assessed him from time to time, was appropriate.  That period of sick leave was a period of about 22 months. 

44.  I have already found that the plaintiff has exaggerated the requirements of his job as supervisor.  As I have found, he was not required to perform strenuous work, only light work.  And as I have pointed out above, the defendant’s solicitors did not go back to Dr Lam for his opinion on what was the reasonable period of sick leave for the plaintiff if he was only required to perform light duty, and not heavy work.  Notwithstanding this, Mr Lim for the defendant relied on the authority of the Court of Appeal in Tam Fu Yip Fip v Sincere Engineering & Trading Co. Ltd, CACV No. 208 of 2007, 8 April 2008, to submit that the Court was not bound by the sick leave certificates and that I had to make my own assessment based on the evidence.  In that case, Le Pichon JA, giving the judgment of the court, said at p. 6T-7E :

“Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, CACV 172/2004, 15 July 2005 at § 9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

45.  Mr Lim submitted that Dr Lam’s endorsement of the sick leave period was based on the plaintiff’s exaggerated claims and that I should only allow a period of 9 months for pre-trial loss of earnings, 6 months for the soft tissue injury to the lower back to heal, and another 3 months for the plaintiff to look for suitable employment.  Whilst I do not accept the opinion of Dr Lam that a period of sick leave of 22 months was reasonable, which was premised on the plaintiff’s statements that his work as a supervisor was heavy duty, I do not agree with Mr Lim’s submissions.  The plaintiff suffered more than soft tissue injury to his lower back.  Dr Lam was of the opinion, and which I accept, that the accident was a causally important factor of the disc extrusion at L5/S1 level, resulting in persistent pain in the low back area.  Having reviewed the medical consultation notes of the plaintiff’s out-patient visits from June 2006 to April 2008, appearing at pp. 315-341 of the Trial Bundles, I conclude that I ought to allow the plaintiff a period of 18 months to recover from his injury resulting from the accident, after which period he ought to have been able him to return to light duty work.  On that basis, the award for pre-trial loss of earnings ought to be in the sum of $285,163.20, inclusive of loss of MPF benefits during this 18-month period ($15,088 x 18 months x 105%). 

(4)     The proper procedure to be followed when parties wish to seek clarification of opinions expressed in a joint expert report

46.  This issue has not been addressed in the Personal Injuries Practice Direction PD18.1. 

47.  Where there is a dispute as to the factual requirements of the pre-accident employment, the joint instructions to the single joint expert, or to the experts appointed to prepare a joint report, should outline the different factual versions to the expert(s) concerned and his or their expert opinion should be sought on each separate version.  The provisions contained in §87 of PD18.1 address and contemplate a situation where the joint report contains opinions, based on common parameters as well as on different parameters.  Where those parameters can only be known after an exercise of fact finding by the trial judge, an expert should not himself embark on any fact finding exercise but should offer his opinion based on one version and his different opinion, if, indeed, it be different, based on the other version(s).  

48.  That did not happen in the present case and Dr Lam offered his opinion based on the plaintiff’s version of his pre-accident work requirements.  In this situation the other party, receiving the joint report and seeing that it contained opinion based on disputed facts, should seek the expert’s opinion based on that party’s version of the disputed facts.  Obviously, it is wrong for a party to approach the maker(s) of a joint report without informing the other side.  I agree with Mr Lim that in a situation such as the present, or when clarification is sought from the maker(s) of a joint report, the proper procedure should be:

(a)     The party raising any question for clarification should in the first instance write to the other party and seek his consent for the question to be put to be expert(s). 

(b)     If the other party does not agree to the question raised, he may propose a different question for the consideration of the party that raised the matter. 

(c)      If consensus cannot be reached between the parties then the party that wishes to seek clarification should take out a summons before the PI Master to determine the matter. 

49.  In resolving the dispute the PI Master would no doubt be guided by §84 of PD18.1 and impose sanctions on the party acting unreasonably in the matter by raising matters which went beyond clarification or by unreasonably refusing to agree to proper questions being put to the expert(s) to clarify genuine issues.

50.  The guidance offered above should not be construed as a carte blanche to seek clarification.  Parties should take care to compose joint instructions which deal with all relevant matters. In the normal course of events, there should be no need for a joint report to be amplified or tested by cross-examination.  As Lord Woolf LCJ said in §28 of his judgment in Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210 :

“If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert’s report is the evidence. Any amplification or any cross examination should be restricted as far as possible.”

51.  I am grateful to Mr Albert Yau for drawing my attention to the UK provisions contained in CPR 35.6 which state :

“Written questions to experts

35.6— (1) A party may put written questions about an expert’s report (which must be proportionate) to—

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written question under paragraph (1)-

(a) may be put once only;

(b) must be put with 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report;

unless in any case—

(i) The court gives permission; or

(ii) the other party agrees.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(4) Where—

(a) a party has put a written question to an expert instructed by another party; and

(b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert—

(i) that the part may not rely on the evidence of that expert; or

(ii)   that the part may not recover the fees and expenses of that expert from any other party.”

This rule was not adopted in Hong Kong because the CJ’s Working Party on Civil Justice Reform noted that the UK provisions were often misused and that are questions that went beyond “clarification” were being raised, sometimes months after the expert report was issued: §606 of the Final Report of the working Party at p. 321. The PI Master will be astute to ensure that only proper questions to clarify genuine issues that are raised in a timely fashion are allowed to be put to the expert(s) after the joint report has been produced. 

(5)     Admissibility of medical opinion on the earning capacity of injured persons

52.  There appears to be some confusion and misunderstanding as to what is and what is not admissible medical opinion on the earning capacity of injured persons. 

53.  The basic principles regarding the admissibility of expert evidence are reasonably clear.  To be admissible, the opinion evidence must qualify as “expert evidence” for the purpose of section 58 of the Evidence Ordinance, Cap. 8, and it must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved. If the court is able arrive at its own decision on the issue, by applying its own knowledge and experience to the facts proved in evidence, expert opinion on the same matter may be excluded on the ground that it is not helpful to the court. 

54.  In Tang Shau Tsan v Wealthy Construction Company Ltd, CACV58/2000, 5 April 2000, the Court of Appeal was concerned with expert reports containing the opinion that the plaintiff has suffered a 10% loss of earning capacity.  Rogers JA, as he then was, agreed with counsel’s criticism of that opinion and said :

“11. An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

12.  On a practical level, it could be said that insofar as Alice Tsang’s report, based upon results of tests, concluded that the plaintiff was capable of limited lighter jobs in carpentry or that he had limited capability for lifting heavy items, that is useful material for the judge.  Insofar as there is speculation as to whether fellow workers could perform the task of moving heavy items or additional staff could be employed or whether the plaintiff could work as a sub-contractor and what effect that his long experience in the field would have on his ability to do so, those, in my view, constitute inadmissible statements.  It is for the court to draw its own conclusions as regards those matters from the evidence before it.  All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff.”

55.  Mayo VP agreed and said :

“24. I also find myself in agreement with the observations made concerning the evidence given by Dr Mao and Ms Alice Tsang. Clearly any expert evidence given by them should have been confined to the Plaintiff’s medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion.

25.  It is however clear from the judgment that the Judge reached the conclusions he did by making his own assessment of the position.  His task was not a simple one by virtue of the Plaintiff making no real attempt to rejoin the labour market as a skilled carpenter.  The Judge was in my view fully entitled to find that having regard to the extent of his incapacity he would have been able to continue working as a carpenter even though he may not have been able to lift heavy weights.  In my view the Judge may have erred on the side of generosity in the amount of sick leave he allowed and in allowing a 10% loss of earning capacity.”

56.  To properly understand these observations, it is necessary to appreciate and distinguish a fundamental difference in the assessment of damages for loss of earnings and earning capacity at common law and in the assessment of compensation under the Employees’ Compensation Ordinance, Cap. 282 (“ECO”). The latter exercise requires an assessment of loss of earning capacity to be made in accordance with the provisions of sections 7, 9 and the First Schedule of the ECO.  As Sir Alan Huggins VP said in Hong Kong Paper Mills Ltd v Chan Hin-wu [1981] HKLR 556, at p. 558 :

“There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Workmen’s Compensation Ordinance. Workmen’s compensation must be assessed solely under the statutory provisions …”

57.  In cases of permanent partial incapacity, an assessment of the compensation payable for total permanent incapacity under section 7 must first be carried out to arrive at a base figure to which is applied the percentage of loss of earning capacity derived under section 9.  That percentage is determined by reference to the First Schedule of the ECO which specifies percentages of loss of earning capacity for various injuries.  Subject to the provisions of section 9(1A), which cater for cases with special circumstances, the specified percentage will be applied to the base figure to produce the amount of compensation payable for scheduled injuries.  As Sir Owen Woodhouse said in Lau Ho Wah v Lau Chi Piu [1987] HKLR 1061 :

“... the calculations provided by the Schedule are intended to reflect a general expectation based on average experience and so provide reasonably swift answers in terms of broad justice.”

58.  In cases of non-scheduled injuries, the assessment of loss of earning capacity, pursuant to section 9(1)(b) and the provisos of that sub-section, must reflect and be proportionate to the fixed statutory percentages provided for the scheduled injuries.  Medical experts, particularly orthopaedic experts, are familiar with the First Schedule of the ECO and the Notes thereto and are adept at assessing the percentage of loss of earning capacity for non-scheduled cases and they regularly do so when preparing in their expert reports for employees’ compensation cases.  Those reports are admissible and of assistance to the District Court in assessing compensation for non-scheduled cases which do not require special treatment under the provisions of section 9(1A). 

59.  The same reports that were prepared for employees’ compensation cases are often reused in the claim for common law damages.  That is why courts assessing common law damages often come across expert opinion on loss of earning capacity. Rogers JA was clearly right to say that the expression of earning capacity in percentage terms was unhelpful in the assessment of damages at common law. The application of such percentages in the assessment of common law damages has been the subject of criticism by the Privy Council in Chan Wai Tong v Li Ping Sum[1985] AC 446.  The Court of Appeal in that case had taken into account the evidence that the appellant from time to time was away from work altogether and then was off work for half days, a situation which was likely to continue in the future.  On that basis the Court of Appeal wished to award damages for loss of earning capacity which the Court of Appeal assessed as follows :

“28.    The difficulty is to put a figure on this loss.  The appellant’s present income is admitted by the respondents to be $3,000 a month.  One doctor assessed the appellant's incapacity or disability at 25%, the other at perhaps 15%.  We think a reasonable way of assessing loss of future earning capacity would be to take a midway percentage figure, namely 20% and say that her loss of earning capacity will be of the order of $600 a month, that is one fifth of her present salary.  That means that the loss of future earning capacity is $7,200 a year and we see no reason to apply a multiplier of less than 15 to that sum.  Therefore the total sum for loss of future earning capacity is $108,000. That deals with the item of general damages.”

The Privy Council advised that this award should be set aside.  In his judgment, Lord Fraser of Tullybelton expressed the view that the method adopted by the Court of Appeal to assess the award was erroneous :

“The Court of Appeal first referred to the fact that one doctor had assessed the plaintiff's disability at 25 per cent. and the other at 15 per cent. They took a ‘midway percentage figure’ of 20 per cent. In so doing they erred by failing to have regard to the fact that the figure of 15 per cent. was assessed by Dr. Chan eight months later than the 25 per cent. assessed by Dr. Dickinson and at a time when, contrary to Dr. Dickinson’s prognosis, the plaintiff’s condition had improved. They also made a more serious error of principle by assuming that a 20 per cent. disability necessarily implied a 20 per cent. loss of future earning capacity. For the reasons which their Lordships have already explained, that is not so. The effect of the disability on a particular claimant’s earning capacity may vary greatly according to the age and particularly to the nature of the employment of the particular claimant, and that matter seems to have been ignored by the Court of Appeal.”

60.  Expert opinion on the percentage of loss of earning capacity is helpful and admissible in employees’ compensation proceedings.  The guidance that Rogers JA has offered to the courts assessing damages at common law should not be so readily accepted, as it appears to have been done, by the courts assessing employees’ compensation (see, for example, Woo Wai Kuen v Liu Siu Keung, Alex trading as Alex’s Kitchen, DCEC489/2000, Law Siu See v De Rodeo Human Resources Ltd, DCEC989/2001, Chan Kam Sau v Yee Hing Construction Transportation Co. Ltd, DCEC1361/2005 and Kan Wai Yip v Everbest Port Services Ltd, DCEC 383/2008).  The expertise of the medical practitioner in assessing the percentage of loss of earning capacity for non-scheduled cases is likely to be of assistance to the court assessing employees’ compensation.  Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd [1988]1 HKC 345 is an example of a case where the Court of Appeal found the opinion of the expert on the percentage of loss of causing capacity to be of assistance. However, expert opinion on the percentage of loss of earning capacity does not assist the court in assessing damages at common law.  But so long as it is understood that the opinion was expressed for the assistance of the court assessing employees’ compensation, it is not necessary for that opinion to be struck out from the same report being used in the common law action. 

61.  However, the exclusion of expert opinion on the percentage of loss of earning capacity in common law cases should not include, with it, the exclusion of the expert’s opinion on the type of work the injured person can perform after his recovery.  In Li Wan Choi v Choi Wan Hing & Anor, CACV182/2000, 15 November 2000, Rogers VP and Le Pichon JA reiterated that statements of percentages of loss of earning capacity were of little assistance to the Court.  Nevertheless, they accepted and had regard to the evidence of the expert as to the type of work the plaintiff could perform after the accident (see §§ 7, 22 and 24 of the Judgment).  The court can often apply its own knowledge and experience of different job requirements to come to a view of what type of work an injured person can perform after the accident.  Such opinion evidence coming from the expert falls within that type of opinion that Mr Albert Yau in his helpful submissions, which I accept, classified as “extend[ing] to matters which the Court, in full command of its judicial experience and common sense, may come to an almost instant impression that it will be in just as good a position as the expert in coming to its own conclusion.”  However, Mr Yau cautioned against the outright rejection of such opinion evidence in every case.  I agree. Whilst the matter may ultimately be for the trial judge, such opinion evidence is helpful to the parties and conducive to enabling the parties to negotiate a settlement of the case.  The exclusion of such evidence from the joint report of the expert(s) may result in increased controversy and drive the parties to require adjudication of the issue by the court instead of resolving the dispute by negotiation or mediation. 

62.  Before I leave this area, I ought to make mention of the recent tendency of experts to omit from their reports an assessment of the permanent impairment of the injured person according the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6^th Ed. (“AMA’s Guides”).  This is a well accepted and well recognised guide to the assessment of disablement based on the World Health Organisation’s International Classification of Functioning, Disability and Health (“ICF”), a comprehensive model of disablement based on impairment of body functions and structures, activity limitations, and restrictions on the person’s ability to participate in activities of daily life.  The assessment of permanent impairment is helpful to the court in assessing the award of damages for PSLA.  It helps the court to harmonise PSLA awards for different types of bodily injury.  In Li Wan Choi v Choi Wan Hing & Anor., CACV182/2000, 15 November 2000, Rogers VP and Le Pichon JA referred to the medical evidence and said :

"5.   … Both doctors had found that there was some residual disability.  They expressed themselves, at that stage, in terms of a percentage degree of permanent physical disability and loss of earning capacity.  Dr Chang put the permanent physical disability at 9% and the loss of earning capacity at 10%.  Dr Chun put the combined whole person impairment as 8% and the loss of earning capacity in the region of 15%. 

6.    We regret that, as with other judges before us, we find these percentages of very little assistance.  The closest that one can gain some insight into the meaning of the percentages is that in his evidence before the master Dr Chun said that with a 5% impairment of the spine, and of the whole person as a result of the spine, one is expected to be able to do frequent lifting of about 20 lbs and occasional lifting of about 50 lbs.  He did not go on to explain what the appropriate figures might be for the percentages which he assessed the plaintiff.  In matters such as this we do not consider that it is possible to make any straight-line extrapolation of the figures based on the increased percentages of impairment for which the plaintiff was assessed.”

The statement that “these percentages [were] of very little assistance” was made in the context of the assessment of the award for loss of earnings.  Clearly, the assessment of the permanent impairment of the whole person based on the AMA’s Guides does not help the court to assess the award for damages for loss of earnings unless, of course, the assessment of the permanent impairment is 100%.  However the assessment of the permanent impairment of the whole person based on the AMA’s Guides is of considerable assistance to the court in assessing the proper award of damages for PSLA and medical experts ought not to hesitate in offering their valuable opinion on this matter. 

(6)     Other Special Damages

63.  Having reviewed the evidence and the submissions of the parties on the matter, I award the sum of $18,000 as pre-trial medical expenses incurred by the plaintiff, the sum of $5,000 as travelling expenses (which was an agreed item), and the sum of $5,000 as pre-trial expenses incurred on tonic food.  I do not make any award of damages for future medical expenses.  There is no evidence before me that the plaintiff needs further medical treatment for his condition, apart from the need to use painkillers on occasions. 

(7)     Interest

64.  I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the Writ until the date of judgment and on damages on pre-trial loss of earnings and other special damages at the rate of 4% per annum from the date of the accident until the date of payment of employees’ compensation.

(8)     Summary of Award

65.  

PSLA	$300,000.00
Loss of Earning Capacity	200,000.00
Loss of Earnings	285,163.20
Other Special Damages	28,000.00
Interest	To be assessed
Less :   Employees' Compensation received by the plaintiff	($390,698.34)

COSTS

66.  I make a costs order nisi that the defendant pays the costs of the action to the plaintiff to be taxed on the District Court scale, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.