LIN CHIU LUNG v. ILE CO LTD

HCPI 1056/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1056 OF 2002

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J U D G M E N T

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Introduction:

1.  In November 1999, Mr Lin was aged 18, and was in the course of an apprenticeship as an electrician.  As a result of a referral from an instructor at the Construction industry Training Authority, Mr Lin began work with Ile Company Limited, (Ile), on 25 November 1999, under the supervision of Yan Kwok Biu, (Mr Yan).  As the master, it was to be Mr Yan's task to instruct Mr Lin in the electrician's trade.

2.  In the early afternoon Mr Yan and Mr Lin were required to prepare a load of electric wire and protective plastic pipes, in order that they may be lifted over a hoarding surrounding the work site.  Mr Yan gave instructions to Mr Lin as to how to prepare the load for the crane.  This required tying the load, together with some nylon bags of electrical switch boxes, using cotton strips to form slings.

3.  The hook from the crane was attached to the slings containing the load, and Mr Yan gave instructions, by radio, to the crane operator, who was unsighted from the place of work.  The crane operator began to raise the load, and Mr Lin was caught up with the load and lifted off the ground.  He screamed, struggled, and fell to the ground, injuring his right elbow.

The issues:

4.  At issue is both liability and quantum.

5.  Ile dispute the precise way in which Mr Lin came to be lifted off the ground together with the load.  There is a dispute as to whether Mr Lin was lifted 5 to 6 feet off the ground, or 10 feet off the ground.  There is a dispute as to whether he was standing on the load, holding on to the load, as contended by Mr Lin, or was caught by the gloved hand, as is contended by Ile.  It is contended that if Mr Lin had not struggled, and had stayed calm, he would not have fallen, and would not have been injured, and that the load would have been safely lowered to the ground.

6.  Mr Gidwani opened the matter on the basis that he was perfectly content to accept Ile's assertions as to the way in which the accident occurred, because, he said, that even on that basis, Ile had been negligent.  In this respect Mr Gidwani relies upon the defendant's pleading of contributory negligence and says that even if the accident happened in that way the defendant was still negligent.  He is entitled to do that: see Poon Hau Kei v Hsin Chong Construction Co Ltd and Taylor Woodrow International Joint Venture [2004] 2 HKC 237, CFA.

7.  There is no dispute that in the course of the incident Mr Lin suffered a fracture of the medial epicondyle of the right humerus.  Consequent upon that Mr Lin suffered right ulnar nerve entrapment.  He has subsequently suffered a psychiatric condition described by the psychiatrist as adjustment disorder with prolonged depressive reaction.

8.  There is a dispute as to how long Mr Lin should have been off work and whether or not his present condition is a consequence of the accident.  There is the usual dispute as to quantum of general damages.

The circumstances of the accident:

9.  It is not in dispute that there was an accident to involving Mr Lin, on 25 November 1999, when he was working under the supervision of Mr Yan.  It is not in dispute that Mr Lin was lifted, involuntarily and unintentionally, by the crane, which was under the command of Mr Yan.  It is not in dispute that Mr Yan fell from a height, resulting in an injury to his right elbow.

10.  There is no doubt at all that in the course of the work Mr Lin and Mr Yan, together, prepared the bundle of electric wire and protective tubing, together with the nylon bags of electrical switches, for lifting into position.  The parties are agreed that, on this first day of Mr Lin's work, he was given instruction on how to carry out this task by Mr Yan who was directing the work.  It is accepted that Mr Yan affixed the hook to the load.  It is beyond argument that Mr Yan gave instructions to the crane operator to commence lifting the load.

11.  Mr Lin says that he was in the process of preparing the load to be lifted, and that he was standing on the load, tightening the slings.  He says that the load began to be lifted, and he was pulled into the air, hanging on to the load by his arms.

12.  Mr Yan's evidence was that at the time load began to be lifted Mr Lin was standing beside the load, on Mr Yan's instructions, to stabilise it.  Mr Yan says that he asked Mr Lin if he was ready, and having received the response “Yes”, he, Mr Yan, moved a few steps away, and by radio instructed the crane driver to begin the lift.  He says the crane started to lift the bundle slowly, and that he watched Mr Lin in the process, seeing that Mr Lin was using both hands to stabilise the bundles during the lifting.  Mr Yan says that suddenly Mr Lin screamed, and he saw that Mr Lin was being lifted up along with the bundle of plastic electric hoses, and that one of Mr Lin's gloves had got tangled with the cotton strips used for the slings.

13.  Mr Yan says he immediately instructed the crane operator to stop, and instructed Mr Lin to keep still and stay calm.  Notwithstanding that instruction, Mr Yan said that Mr Lin struggled and fell to the ground.  Mr Yan said that Mr Lin struck his elbow on a hoarding while struggling.  It is irrelevant whether the injury was caused by a blow on a hoarding, or in the subsequent fall, for there is no doubt that the injury was caused consequent upon Mr Lin being lifted from the ground by the load.

The height of the fall:

14.  There was an issue as to the height from which Mr Lin fell.  In the statement of claim the pleading was made that Mr Lin fell from a height of  “about 10 feet”.  Subsequent medical reports, apparently based upon the record made by the doctor who saw Mr Lin on 25 November 1999, show that Mr Lin then said the fall was from a height of 4 to 5 feet.  In his first witness statement, made on 4 May 2002, Mr Yan said the fall was from a height of “about 10 feet”. In a second witness statement made on 29 April 2004, that assertion was repeated.

15.  Ms Molloy sought to lead evidence from Mr Yan that in fact the fall was from the much lower height.  No supplementary witness statement had been filed, and the matter was raised for the first time during the course of the hearing.  At the end of the day, because I was satisfied that the height from which Mr Lin fell was essentially irrelevant, the relevant fact being the fall and consequent injury, I allowed the evidence to be lead from Mr Yan.

16.  Solicitors and counsel should not expect to be able to come to a personal injury case in which there has been an exchange of witness statements, those statements to stand as evidence in chief, and be able, by oral evidence at trial, to vary those statements.  The whole purpose of the statements and the exchange of statements is that each party should clearly know the facts upon which the other intends to rely.  Inevitably, from time to time there will be mistakes in statements or matters omitted.  As soon as that is known a supplementary statement should be supplied and an application made to admit those supplementary statements.

17.  I have considered carefully the evidence of both Mr Lin and Mr Yan.  It is always necessary, when considering the description of an accident by the victim to an accident, to bear in mind that the events are likely to have taken place in a very brief period of time, usually seconds.  If there has been injury, it is likely that the victim will have concentrated more on the injury than the circumstances of the accident.  I am satisfied on the balance of probabilities that it is more likely than not that, in the course of stabilising the load, while it was being lifted, Mr Lin's hand, (whether gloved or not), has been caught in the sling, causing him to be lifted from the ground with the load.  I find it inherently improbable that Mr Lin could have been standing on the load as he tried to describe, particularly bearing in mind the physical nature of the load.

Negligence on the part of the employer:

18.  Mr Gidwani submitted that in the event that the accident was, as Mr Yan described it, Ile were negligent either, as pleaded in the statement of claim, by causing or permitting the load to be lifted without first ensuring the safe to do so, or as asserted by the statement of defence, in putting Mr Lin in a position of danger without due care for his safety.

19.  I accept that submission.  I am satisfied that by instructing Mr Lin to stabilise the load by hand, as he did Mr Yan put Mr Lin in a position of danger and failed to take due care of Mr Lin's safety.  It is both fundamental and obvious that when a workman is in close proximity to a load that is about to be lifted he is in a position of danger and appropriate care must be taken.

20.  Mr Gidwani referred to the Code of Practice for Safe Use of Mobile Cranes produced by the Occupational Safety and Health Branch of the Labour Department.  The evidence did not establish whether this crane was a mobile crane but the points from the Code of Practice are relevant to the operation of any crane, mobile or not.  Paragraph 12.1.3.1, in section 12, Safe Working Loads and Operating Conditions, Mode of operation and control, provides:

“When loads have to be handled in the vicinity of persons, extreme care should be exercised and adequate clearances should be allowed.”

Paragraph 15.4.1, in section 15, Securing of Loads before Lifting, provides:

“When fitting the sling to a load, step should be taken to ensure that: (h) a tag line or control rope is available for assisting in the control of the swing or rotation of the load.”

21.  If it was necessary to stabilise the load in the course of the lift the safe and proper way to do that is to attach a line to the load in order that a workman may stand clear of the load during the lift and use the line to ensure stability.  The instruction in the Code of Practice goes simply to confirm the obvious.  Steps must be taken to keep workmen away from a load.  If it requires stabilisation, that must be undertaken by the use of stabilising lines.

22.  Mr Yan gave instructions to commence the load when Mr Lin was in a position of danger.  The system of work was plainly not safe.  I am satisfied that Mr Lin has established appropriate actionable negligence on the part of Ile.  Mr Yan gave evidence that he had been working as an electrician for 26 years and had never had a previous similar accident.  Ms Molloy relied upon that evidence to say that the system of work was safe in the event was wholly unforeseeable.  Evidence of 26 years work as an electrician falls a long way short of establishing that the method chosen of using a crane is a safe method.  There was no evidence from Mr Yan as to the extent of its experience in using cranes.

23.  Ms Molloy contended that it was unforeseeable that Mr Lin's gloved hand would be caught in the sling.  But it is not necessary that the employer must foresee the precise mechanism by which the accident occurs.  There are a myriad of ways in which an employee, stabilising a load, as Mr Lin was instructed to do, might get caught up in the load, and lifted off the ground.  The load may have caught an item of his clothing, lifting him from the ground.  It may have knocked him over, causing him injury.  What must be foreseeable is that there is a risk to the employee of injury.  I am in no doubt at all that standing in close proximity to a load about to be lifted is a position of danger.  That is plainly why the Code of Practice demands a tag line or control rope to control the swing or rotation of the load; in other words to stabilise it.

24.  Ms Molloy sought to contend that Mr Yan answered the allegation of failing to ensure that it was safe to lift the load, by his evidence that he had asked Mr Lin as he was ready, and Mr Lin responded saying, “Yes”.  I am satisfied that is no answer.  In the first place Mr Yan had put Mr Lin in a position of danger.  In the second place the very fact that Mr Lin was lifted by the load establishes that it was not safe to lift the load.

25.  At the end of the day it does not matter whether the accident happened as Mr Lin described it, standing on the load and being lifted with it, or as Mr Yan described it, Mr Lin's gloved hand being caught by the load in the process of stabilising it as it was being lifted.  The system of work adopted was unsafe.  The responsibility for that system lay with Mr Yan as the master who was directing Mr Lin.

Contributory negligence:

26.  A number of heads of contributory negligence were pleaded.  Setting aside the issue of the requirement to remain calm once he had been lifted into the air, not only have none of the heads of contributory negligence been made out, on the Defendant's on case, they are positively disapproved.

27.  Mr Yan instructed Mr Lin in the method of tying up the bundle preparatory to being lifted.  But Mr Yan gave no safety instructions in relation to the lift to Mr Lin.  On Mr Yan's own instructions Mr Lin was placed in a position where his gloved hand could become tangled in the load.  No instructions were given to adopt a more cautious approach, and in any event Mr Lin was doing nothing more than that which Mr Yan instructed.  The work method was devised by Mr Yan.

28.  If, as on Mr Lin's case, he was still in a position on or over the bundle tightening the slings, Mr Yan ought not to have given the instruction to lift the load.

29.  I am obliged to say that I found the suggestion that Mr Lin ought to have remained calm and wait for the crane to lower him, as a basis of contributory negligence, to be somewhat offensive.  Mr Lin acted in the way in which any human being would have been expected to react in the circumstances.  While it might have been a better course to remain calm and hold on, it could never be suggested that to do so would amount to contributory negligence.  Significantly, no authority was cited for the proposition by Ms Molloy.

30.  I reject completely the proposition that Mr Lin was in any way at all responsible for the accident.  It was his first day at work.  He was completely inexperienced.  He did nothing more than to follow the instructions of Mr Yan.  Full liability for the accident plainly lies with Ile.

Quantum:

31.  The accident occurred on 25 November 1999.  On that day Mr Lin was taken to Eastern Hospital, A. & E., where he was examined and an x-ray was taken of his elbow.  Unfortunately the fracture was not diagnosed.  In March 2000, a further x-ray showed a bony fragment behind the medial epicondyle, compatible with the non-union of a fracture.  An x-ray was undertaken but the fracture was still not diagnosed.  A private CT scan undertaken by Mr Lin revealed a small bony fragment, which could be a small chip fracture, which according to the report might not be visualised on an ordinary x-ray.

32.  Mr Lin was dissatisfied with the medical advice that he was receiving and a further CT scan was undertaken at Foshan in the Mainland.  The fracture was then diagnosed.  The fracture healed without treatment, but a consequence of the fracture was entrapment of the right ulnar nerve behind the right elbow, due to new bone formation after the fracture.  It was necessary for Mr Lin to undergo surgery twice to relieve this consequence.

The medical findings:

33.  Certain medical findings are significant.  The fracture was plainly a minor fracture, as by 17 May 2000, only six months after the accident, the right elbow had a full range of movement, at that time there were no signs of nerve injury, and there was no muscle wasting.  It is clear that the lack of muscle wasting indicated normal use and, at that time, a lack of genuine pain.  At that time the power and range of movement of the fingers, wrist and elbow were normal. 

34.  Subsequently, Mr Lin began to suffer symptoms of tingling and numbness, consequent upon the nerve entrapment.  Those symptoms however did not affect the normal functioning and use of the limb.  On 19 June 2001, he had his first surgery to relieve the nerve entrapment.  Examination on 27 July 2001, again showed that the elbow had a full range of motion, no instability, no sensory deficit, and no muscle wasting.  These findings demonstrate that by that time Mr Lin was using his arm normally, and had been doing so before the operation.

35.  An incident in physiotherapy prior to December 2001, resulted in the entrapment of the nerve again, requiring further surgery.  That surgery was undertaken on 17 December 2001.  Again it was found, shortly after that surgery, that there was no muscle wasting and no sensory deficit.

36.  An examination in March 2002 found near normal function, practically no muscle wasting, and no deformity.  By August 2002 Mr Lin was attending a work hardening program once a week, and was able to lift 20 to 25 pounds without causing right elbow pain.  Mr Gidwani cannot challenge Ms Molloy's contention that by 14 August 2002, Mr Lin's physical condition was such that he was able to return to work.  That is plainly right having regard to the medical evidence.

37.  While he has suffered a disability consequent upon the injury the medical evidence is such that I am satisfied that he is physically now, and has been since 14 August 2002, perfectly capable of going back to work as an electrician.  There is no clinical medical reason why he should not complete his apprenticeship and work in the future as an electrician.

The psychiatric overlay:

38.  Regrettably, Mr Lin has not been able to return to work.  He has developed a serious psychiatric overlay in relation to the injury.  Notwithstanding the complete lack of objective basis for pain in the elbow, he still suffers pain in the elbow.  In addition he says that he suffers pain in his liver, both shoulders, and the left side of his chest.  He is lacking in energy and drive and has a depressed and irritable moved.  He is preoccupied by the perceived deformity of the right elbow, (there is no deformity at all), and the looseness of the tendons and nerve in the right elbow, (there is no medical evidence to substantiate this perception).  He has become socially isolated, and does not go out of his home other than to attend clinics or to the mainland seeking treatment.  He has obtained a limited employment in a sheltered workshop.

39.  He has been diagnosed by Professor Felice Leih-Mak as suffering from a prolonged depressive reaction to the injury.  There is no medical basis to substantiate the concerns that he feels and symptoms of which he complains, but nonetheless he does have those concerns and those symptoms.  They are a product of the depressive reaction condition consequent upon the injury.

40.  Fortunately no permanent psychiatric disability is anticipated, but he will need psychiatric treatment after the litigation is resolved.  This treatment will consist of rehabilitation in the day patient unit, five days a week for six months, and then 20 sessions of treatment by a psychiatrist over a period of one year, and 20 sessions of psychotherapy by a clinical psychologist over a period of one year.  The total duration of treatment required is one year and six months.  It is the opinion of Professor Felice Leih-Mak that from a psychiatric point of view he should be able to return to his previous employment, or jobs of a similar nature.

41.  Having regard to the foregoing medical and psychiatric background I make the following award of damages.

PSLA:

42.  The degree of pain suffered by Mr Lin is not, compared to other injuries, significant.  The fact that he rapidly regained normal use of his arm, as demonstrated by the extended mobility and lack of muscle wasting indicates that pain was limited.  It is right however that he has had to undergo two sessions of surgery and suffer the consequences of the nerve entrapment.  I accept that he suffers continuing pain symptoms, but those are of a psychiatric basis, and not a medical basis.  I accept that he has to an extent I suffer loss of amenities of life, but not to the extent to which he contends.

43.  I have taken into account the cases cited by counsel.  I am satisfied that the appropriate sum for an award of PSLA damages is $250,000.00.

Loss of earnings:

44.  I have accepted that Mr Lin was fit to go back to work by 14 August 2002.  He is entitled to pre-trial loss of earnings to that date.  The psychiatric overlay, a consequence of the accident has restricted him from going back to work.  The treatment will require a period of 18 months during which he will not be able to work, after which he should be able to return to normal work.  The medical advice is that this treatment should take place following the resolution of the litigation.

45.  He was an apprentice at the time of the accident, and would have been an apprentice for between three and six years, depending on his attitude and aptitude.  I accept Ms Molloy's submission that it would have taken him at least 4 1/2 years to qualify, to July 2003.  During the period of apprenticeship as salary would have been $300 per day, working 26 days per month.  On that basis pre-trial loss of earnings amounts to $253,500.

46.  The evidence is that there is not as much work available for electricians now as there was in the past.  However the evidence is restricted to construction site electricians and does not have regard to the availability of other forms of work such as decoration work. 

47.  Taking a broad view of the matter I am satisfied that during the 18 month period post trial, during which he will be required to undergo psychiatric treatment, he could have, as the qualified electrician he would have then been, were it not for the accident, been in work on average 15 days per month, at $500 per day.  Post-trial loss of earnings accordingly amount to $135,000.

MPF contributions:

48.  Total loss of earnings amount to $388,500, upon which Mr Lin is entitled to 5% MPF employer's contribution, a sum of $19,425.

Loss of earning capacity:

49.  No evidence was led as to loss of earning capacity, nor, on the basis of the medical evidence could any such loss be claimed.  No award is made.

Other special damages:

50.  The Revised Statement of Damages contains the usual claims for special damages, some of which are substantiated, in part, by documentation, others of which are not.  While some matters are not substantiated by documentation they are, to an extent, plainly reasonable.  In the absence of evidence to the contrary I am satisfied that some at least of the expenses are incurred.  I have taken a broad view of the matter and make the following awards:

(i)	Medical expenses at government hospitals:		$5,000.00
(ii)	Bonesetters:		$7,500.00
(iii)	Chinese Herbalists:		$3,500.00
(iv)	Treatments at Mainland hospitals:		$3,500.00
(v)	Tonic food:		$1,500.00
(vi)	Travelling Expenses:		$5,000.00
(vii)	Medical Accessories:		$1,000.00
(viii)	Future Medical expenses:
	(a)	Physiotherapy	$7,200.00
	(b)	Psychiatric/Psychology treatment	$9,600.00
Total:			$43,800.00

Sensibly, Mr Gidwani did not pursue the claim for loss of income by Mr Lin's mother through caring for him following the accident.

Summary:

51.  The following schedule summarises the awards made:

PSLA:	$250,000.00
Pre-trial loss of earnings:	$253,500.00
Post trial loss of earnings:	$135,000.00
MPF:	$  19,425.00
Special damages:	$  43,800.00
Total:	$701,225.00

Interest:

52.  Mr Lin shall be entitled to interest on the PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgement.  Interest on pre-trial loss of earnings, post-trial loss of earnings and special damages shall be calculated after deducting the payment made under the Employees Compensation legislation, at judgement rate, pursuant to s 49(1)(b), from the date of accident to the date of satisfaction.

Costs:

53.  There will be an order nisi that Ile must pay Mr Lin's costs of and incidental to the action, to be taxed on a party and party basis, his own costs to be taxed on Legal Aid Regulations.