TALAT ZAHID v. CHEUNG FAT METAL TRADING CO LTD AND OTHERS

HCPI 399/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 399 OF 2012

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JUDGMENT

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1.  This is a personal injuries action. The Plaintiff claims for injuries, loss and damage resulting from a work-related accident on 7 August 2009 which occurred in the course of his employment with the 1^st Defendant. The Plaintiff claims that the accident was caused by the negligence, breach of common duty of care and breach of statutory duty on the part of the 1^st, 2^nd and 3^rd Defendants.

2.  Default judgment on liability has been entered against the 2^nd and 3^rd Defendants.

LIABILITY OF THE 1^ST DEFENDANT

(i)   The Plaintiff’s case

3.  The Plaintiff was the only witness testifying in support of his case.

4.  The Plaintiff was born on 5 February 1977 in Pakistan.  He received education up to Grade 8 in Pakistan.  He is fluent in Punjabi and Urdu and he speaks little English and Chinese.  He came to Hong Kong at the age of about 20 in 1997.  Since he came to Hong Kong, he worked as a construction site general worker.

5.  Since about November 2008, he started working with the 1^st Defendant as a general worker.  The 1^st Defendant was a scrap metals trading company which operated 5 scrap metals handling workplaces in Hong Kong.  The 1^st Defendant would instruct workers including the Plaintiff to collect the scrap metals from different sites and then deliver them to the warehouses, cut the scrap metals into pieces if necessary and then bundle them for shipping to the Mainland.  At the time of the accident, there were about 8 to 9 workers including the Plaintiff working for the 1^st Defendant.

6.  At the time of the accident, the Plaintiff was instructed by the 1^st Defendant to work at the warehouse located in the apron and back up area of Berth No CKL-19, Cha Kwo Ling Public Cargo Working Area, 210, Cha Kwo Ling Road, Cha Kwo Ling, Kowloon (“Cha Kwo Ling PCWA”). The said warehouse was one of the 5 scrap metals handling workplaces operated by the 1^st Defendant.

7.  The “boss” of the 1^st Defendant was Yu Cheung Lun (“Yu”) who would come daily to the workplace for a while or few times a day checking the progress of the works.  There was a master known to the workers as “Ci Fu” employed by the 1^st Defendant to take charge of the each of the 5 workplaces.  The “Ci Fu” in charge of the Cha Kwo Ling PCWA was called “Ah Wong”.  Either Yu or “Ci Fu” would give the workers daily instructions and assign works for them to do.  Yu also asked the workers to follow the instructions given by the 3^rd Defendant as well.

8.  At the time of the accident, the 1^st Defendant sub-contracted the work of loading and unloading scrap metals at Cha Kwo Ling PCWA to the 3^rd Defendant who was the registered owner of the crane truck with the registration number NK7668 (“the Truck”).  The 2^nd Defendant was the driver of the Truck and was employed by the 3^rd Defendant at the time of the accident.

9.  On 7 August 2009, the Plaintiff and the 2^nd Defendant were unloading scrap metals (which they collected from Yuen Long) from the loading platform of the Truck (“the Platform”) at Cha Kwo Ling PCWA.  It is the Plaintiff’s case that the Truck was fully loaded with scrap metals, I-beams, metal bearings, wire ropes and other loose materials.  The Plaintiff climbed onto the Platform to untie the metal wire ropes holding the scrap metals.  The 2^nd Defendant first operated to move the jib of the crane up a bit for the Plaintiff to untie the wires.  After the Plaintiff had untied the wires, he signalled the 2^nd Defendant to raise the jib upwards to a vertical position in order to make way for the crane to unload the scrap metals from the Platform.  However, the 2^nd Defendant pressed the wrong button.  Instead of moving the jib upwards, the jib moved sideways, striking the Plaintiff and causing him to fall from the Platform onto the ground.  As a result, he sustained injuries.

10.  The Plaintiff also mentioned that after he untied the wires, instead of remaining at the same spot, he did move slightly towards the rear of the Platform to the spot above the 4^th axle of the Truck in order to stay clear of the jib.  Although he had done so, the jib moved towards him and he could not avoid being struck by the jib.

11.  According to the Plaintiff, no one had stopped him or otherwise warned him not to stay on the Platform when the jib was in motion.  During the loading and unloading work, the workers would usually be required to stay on the platform of the truck.  When the jib of the crane was used to lift up the scrap metals, the workers would just stand aside on the platform instead of getting down from the truck as it would slow down the work.  Even the “Ci Fu” employed by the 1^st Defendant would work in the same way.  The Plaintiff had been following the way they did.  Yu had said to the Plaintiff words to the effect: “Don’t be scared, don’t get down, stay on the truck platform and speed up your works” (“Yu’s Words”).

12.  Further, the Plaintiff claimed he had not been provided with any training by the 1^st Defendant.  However, he obtained his “safety card” and SITA Signaller Certificate (P 502Q-V), and he was aware from his previous training that workers should stay clear of the jib when it was in operation.

13.  According to the Plaintiff, for such kind of work, his former employer had provided another working platform placing it alongside the platform of the truck.  When the crane was in motion, that independent platform would provide a place of refuge for the workers.

14.  In the course of giving his evidence in the witness box, the Plaintiff had to stand up occasionally to ease his discomfort after sitting for prolonged periods of time.

(ii)  The 1^st Defendant’s case

15.  Yu was the only witness testifying in support of the 1^st Defendant’s case.  Yu was the boss of the 1^st Defendant, but he was not involved in the daily operation of the 5 scrap metals handling workplaces operated by the 1^st Defendant.  He delegated the task of managing the workplace at Cha Kwo Ling PCWA to the 3^rd Defendant and one Chan Yuk Fan (“Chan”).  It is fair to say that he did not have much idea as to the routine operation of that workplace.

16.  Yu denied that he had ever said the Yu’s Words to the Plaintiff.  According to Yu, the Plaintiff was an experienced worker. When the Plaintiff gave the signal to the 2^nd Defendant to move the jib, he should have moved to the back of the Platform or climbed down the Truck so as to avoid being struck by the jib.

17.  Nevertheless, Yu agreed that the Plaintiff is a hardworking person.

18.  Although the 2^nd Defendant was present at the trial, he had not filed any witness statement in support of his case.  Hence, he was not a witness in this case.

(iii)    Assessment of the evidence

19.  There is no serious dispute as to how the accident actually occurred.  The Plaintiff gave the signal to the 2^nd Defendant to move the jib upwards.  The 2^nd Defendant pressed the wrong button causing the jib to move sideways and struck the Plaintiff.  Apparently, the only factual disputes are related to the issues as to: (i) whether Yu had said the Yu’s Words to the Plaintiff; (ii) whether the Plaintiff’s former employer had provided an independent working platform for the workers in carrying out similar kind of work; and (iii) whether the Plaintiff had moved slightly towards the back of the Platform to stay away from the operating area of the crane.

20.  Having carefully considered the Plaintiff’s evidence, despite that he might have exaggerated his symptoms in the medical examinations after the accident which I will further elaborate in the latter part of this Judgment on quantum, I generally find the Plaintiff to be an honest and reliable witness at least on the issue of liability.  He was able to give a clear account about the occurrence of the accident and his evidence had remained unshaken after cross-examination.

21.  Further, even Yu agreed that the Plaintiff is a hardworking person.  He took up other part-time employment before the accident to improve his living, and he does not appear to be the type of person who would try to make use of these proceedings to take unfair advantage of the Defendants.  Hence, I find in favour of the Plaintiff on all the factual issues mentioned above.

22.  On the other hand, Mr Lim, counsel for the 1^st Defendant, attacks the Plaintiff’s evidence as inconsistent.  He argues that, if the Plaintiff had moved slightly towards the back to stay away from the jib or Yu had said the Yu’s Words to him, the Plaintiff should have included these important details in his statement to the Labour Department taken on 15 September 2009 (“the Statement”), which was not the case here.

23.  In his cross-examination, the Plaintiff explained that since he was not specifically asked on these matters, he did not mention such facts in the Statement.  I accept such explanation as a genuine one.  One has to bear in mind that the Plaintiff would not have thought like a lawyer when he gave the Statement to the Labour Department.  For him, the most important thing was to tell the Labour Department how the accident occurred.  It is therefore understandable that he had not thought about all the other matters which the court would ultimately consider in determining the question of legal liability.  Hence, I do not find that the omission of such details in the Statement would in any way affect the credibility of the Plaintiff’s evidence.

24.  There is also an issue as to whether the 1^st Defendant had provided any safety instructions to the Plaintiff and its workers including staying away from the operating area of the jib or climbing down the truck when the crane was in motion.  The Plaintiff claims that no such safety instructions had ever been given to him.

25.  Yu was not at the workplace most of the time and the 1^st Defendant had in fact delegated the task of managing the workplace at Cha Kwo Ling PCWA to the 3^rd Defendant.  Under such circumstances, it was extremely unlikely that Yu himself had provided any safety instructions to his workers.  In fact, Yu had stated the following in his own declaration made to the Labour Department:

(i) apart from asking him to be careful, there was no specific safety instruction given to the Plaintiff as to his working on the Truck;

(ii) there was no safety training provided to the Plaintiff;

(iii) there was no safety assessment undertaken or safety precaution provided by the 1^st Defendant to the workers other than reminding them to be careful; and

(iv) the Plaintiff could stay on the Platform to unload the scrap metals as it was a simple task.

26.  In his oral evidence, Yu also admitted that no written safety guide was provided to the Plaintiff.  He thought that there was no point in doing so as the Plaintiff was a Pakistani.

27.  It seems that the 1^st Defendant has sought to rely on the witness statement of Chan to show that the 3^rd Defendant had instructed the workers to stay away from the operating area of the jib.  But since Chan was not available for cross-examination at the trial, I attach very little weight to his evidence.

28.  Mr Lin, counsel for the Plaintiff, submits that the evidence above reveals the mentality of the 1^st Defendant in running the 5 workplaces including Cha Kwo Ling PCWA.  The 1^st Defendant had simply left it to the 3^rd Defendant and Chan to manage the said workplaces and did not supervise.  The 1^st Defendant did not really care whether there was any safety measure or procedure implemented by the 3^rd Defendant or Chan and had no idea as to whether any safety measure or procedure (if any) had been followed.  There is certainly some weight in these criticisms.

29.  It was Yu’s evidence that there was no need for workers to stay on the loading platform when the crane was in motion.  Even when the heavy I-beams were hoisted by the crane, the workers could use ropes to stabilise the load.  However, the price to pay for all these additional steps was to slow down the process.  In the mind of the 1^st Defendant, it was only a simple task for the workers to work on the platform and there was no need to provide any safety instruction for the workers to work thereon.  He did not even know whether the Plaintiff was in fact instructed by the 3^rd Defendant or Chan not to stay on the platform when the crane was in motion.

30.  The Plaintiff had been instructed to follow the instructions and the working routine of Ci Fu and the other workers.  Even when the jib of the crane was in motion, they would just stand aside on the loading platform instead of getting down from the truck so as not to slow down the work progress.  I accept the Plaintiff’s evidence in this regard.  In fact, the Plaintiff gave evidence in the related criminal proceedings to the effect that if he got down from the Platform whenever the jib of the crane was in motion, it would slow down the work process and he would be fired.  This was no different from the fact that he was not allowed to get down from the Platform every time when the jib of the crane was in motion.

31.  Further, it is the evidence of the Plaintiff that the jib of the crane was moved twice by the 2^nd Defendant shortly before the accident while the Plaintiff remained on the Platform, namely that the 2^nd Defendant had moved the jib up a bit for the Plaintiff to untie the metal wire ropes before he was asked to raise the jib to make room for the crawler crane, which was not challenged in cross-examination.  On neither occasion was the Plaintiff asked to stay away from the Platform.  This clearly supports the Plaintiff’s case that this was the 1^st Defendant’s practice to require the workers to remain working on the truck platforms when the crane was in motion.  Even in the safety working guide of the 1^st Defendant which was not provided to the Plaintiff, there was no instruction to require the workers to stay away from the truck platforms when the crane was in operation.

32.  For the above reasons, there is no merit in the 1^st Defendant’s argument that the Plaintiff should have climbed down the Truck every time when the crane was in motion.

33.  It was also suggested by the 1^st Defendant in cross-examination that the Plaintiff could have moved to the rear part of the Platform.  However, as explained by the Plaintiff and can also be seen from the photographs[1], there were a lot of materials placed at the rear part of the Platform.  In such circumstances, although it was always possible for him to move over there, it would be difficult and dangerous for him to do so.  Further, moving to the rear part of the Platform every time when the jib was in motion would considerably slow down the unloading operation.  As it had all along been the attitude of the 1^st Defendant that the unloading work was a simple operation, I doubt very much whether the 1^st Defendant would have expected the workers to do so every time when the crane was in motion.

34.  I agree with Mr Lin that, since the Platform was fully loaded with ropes, scrap materials and I-beams, the 1^st Defendant should have provided a side working platform as a place of refuge for the workers when the crane was in motion.  Such kind of platform had been provided by the Plaintiff’s former employer for the workers to carry out similar kind of work.  The significance of the provision of such platform can also be reflected in the Accident Report, where the safety officer of the Labour Department expressly made a note about the absence of such working platform at the time of the accident.

(iv)  Liability of the 1^st Defendant

35.  It is trite law that an employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee to work with, and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters.  Further, it is a non-delegable duty and the employer is liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work for the employees.[2]

36.  Based on the evidence in this case, I have no difficulty in finding that the 1^st Defendant is liable for negligence and breach of the contract of employment in failing to provide a safe place and system of work for the Plaintiff, failing to provide a working platform to the Plaintiff to carry out his work and failing to provide adequate safety instructions to him relating to the work he was performing at the time of the accident.  The risk of the workers being struck by the crane was certainly foreseeable, and so the 1^st Defendant owed a duty to the Plaintiff to take all reasonable steps to prevent such kind of accident from occurring.  It is clear that the 1^st Defendant had failed to discharge such duty.

37.  As the 1^st Defendant had not implemented any safety procedure or system or given any instructions to its workers including the Plaintiff to deal with the situation, the 1^st Defendant was also in breach of its statutory duty under s 6 of the Occupational Safety and Health Ordinance (Cap 509) to ensure the safety and health at work of its employees within the limits of reasonable practicability.[3]  As the workplace was not safe, the 1^st Defendant was also in breach of its common duty of care as occupier of the said warehouse owed to the Plaintiff.[4]

(iv)  Vicarious liability

38.  Mr Lin has also referred me to the recent decision of the United Kingdom’s Supreme Court in Cox v Ministry of Justice[5] and argues that, under the liberal application of the principle of vicarious liability, the 1^st Defendant is also liable for the tort committed by the 2^nd and 3^rd Defendants, in that the tort was committed by them as a result of activity, namely the work of unloading the scrap metals, being undertaken by them on behalf of the 1^st Defendant, and that activity was integral to the 1^st Defendant’s business activities in the warehouse located at Cha Kwo Ling PCWA, and that the 1^st Defendant, by engaging the 3^rd Defendant and hence the 2^nd Defendant to carry out the activity, had created the risk of the tort being committed by them.

39.  In Cox[6], the claimant, who was working as the catering manager in a prison, was moving supplies with the help of prisoners who were on prison service pay, when a bag of rice was dropped spilling its contents on the floor.  The claimant instructed the prisoners to stop work until the rice was cleared.  Ignoring her instruction, one prisoner attempted to get past and dropped a heavy bag of rice on the claimant’s back, injuring her.  She brought proceedings against the Ministry of Justice as defendant, claiming damages for personal injuries on the basis, inter alia, that it was vicariously liable for the negligence of the prisoner.

40.  The Supreme Court held that the defendant was so vicariously liable.  In the judgment, the following observations were made about the principle of vicarious liability:[7]

(i) vicarious liability in tort is imposed on a defendant in respect of the act or omission of another because of his relationship with the tortfeasor and the connection between that relationship and the act or omission in question;

(ii) a relationship can give rise to vicarious liability even in the absence of a contract of employment;

(iii) the essential factors are that: (a) the tort was committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant; (b) the activity was integral to the defendant’s business activities; and (c) the defendant, by employing the tortfeasor to carry out the activity, had created the risk of the tort being committed by the tortfeasor; and

(iv) these criteria have been designed to ensure that liability is imposed where it is fair, just and reasonable to do so, and where they are satisfied, it is not generally necessary to conduct a separate assessment as to the fairness, justice and reasonableness of the result in the particular case, but it may be valuable to do so where the circumstances of a case have not previously been the subject of an authoritative judicial decision.

41.  The Supreme Court held that the prisoners working in prison kitchens were integrated into the operation of the prison, so that the activities assigned to them by the prison service were integral to the activities it carried on in the furtherance of its aims, in particular, the provision of meals for the prisoners; that prisoners working in prison kitchens were placed by the prison service in a position where there was a risk that they might commit a variety of negligent acts within the field of activities assigned to them, and the claimant had been injured as a result of negligence by a prisoner carrying on the activities assigned to him.  Hence, the criteria for vicarious liability had been met, and since, standing back, the imposition of such liability was fair, reasonable and just in the circumstances, the Ministry of Justice was liable for the claimant’s injuries.

42.  Since the 1^st Defendant had a non-delegable duty to provide a safe system of work for the Plaintiff, it would be liable for the accident even if the 3^rd Defendant failed to provide a safe working environment for the Plaintiff.  In seeking to rely on the principles in Cox v Ministry of Justice[8], it seems that the Plaintiff is going further by asking the court to hold the 1^st Defendant vicariously liable for the negligence of the 2^nd Defendant in pressing the wrong button for the operation of the crane.

43.  Despite the able submission of Mr Lin, the court should be cautious in applying these principles in the circumstances here.  As observed by the judges of the Supreme Court, the question of vicarious liability in tort depends very much on the relationship between the actual tortfeasor and person allegedly to be vicariously liable and the connection between that relationship and the act or omission in question.  Further, the imposition of vicarious liability should be fair, reasonable and just in the circumstances.

44.  In the present case, the actual tortfeasor was employed by the 3^rd Defendant who was an independent contractor of the 1^st Defendant.  Despite that the 1^st Defendant had delegated the work operation to the 3^rd Defendant, it remains the fact the 2^nd Defendant was only answerable to the 3^rd Defendant relating to the work at the site.  In other words, the 1^st Defendant had no direct control over the 2^nd Defendant so far as the unloading work was concerned.  On the other hand, the Ministry of Justice in Cox directly caused the prisoners to work at the prison. As the circumstances are different, I have great reservation as to whether it is fair, reasonable and just to impose vicarious liability on the part of the 1^st Defendant for any tort committed by the 2^nd Defendant, even if it can be said that the 2^nd Defendant was engaging in an activity which was an integral part of the 1^st Defendant’s business activity.

45.  As pointed out by the Supreme Court in Cox, it is a condition for vicarious liability that the actual tortfeasor was engaging in an activity undertaken by him “on behalf of the defendant”.  Whilst it may be said that the prisoner in Cox was, at the time of the commission of the tort, engaging in activity undertaken on behalf of the Ministry of Justice, the 2^nd Defendant, whilst working at Cha Kwo Ling PCWA, was engaging in activities on behalf of the 3^rd Defendant and not the 1^st Defendant.  If Mr Lin’s argument is correct, it would virtually mean that the principal contractor in a construction site would be vicariously liable for any tort committed by an employee of its sub-contractor, because the employee was engaging in activity on behalf of the principal contractor.  This simply cannot be right.  That particular employee should not be said to be engaged in activity undertaken by him on behalf of the principal contractor.

46.  For the above reasons, I prefer to find the 1^st Defendant liable for the accident without relying on the principles enunciated in Cox v Ministry of Justice[9].

(v)   Contributory negligence

47.  I also find that the Plaintiff was not guilty of any contributory negligence.  The Plaintiff was only doing the work in the way the 1^st Defendant expected him to do it in order to get on with the business.[10] Further, even if the Plaintiff was careless in not moving to the back of the Platform or climbing down the Truck, which I do not accept it to be the case, it was at most a mere error of judgment by the Plaintiff as to how the work on which he was engaged could best be carried out.  There is no question here of any disobedience to orders or reckless disregard by him of his own safety.  As observed by Lord Keith in John Summers & Sons Ltd v Frost[11], what the Plaintiff did fell short of contributory negligence.

48.  For the above reasons, I find that the 1^st Defendant is liable for the accident to the full extent.  I now turn to the issue of quantum which also concerns the 2^nd and 3^rd Defendants.

QUANTUM

(i)   Injuries and treatment

49.  After the accident, the Plaintiff attended the Accident and Emergency Department of Queen Elizabeth Hospital (“QEH”) for medical treatment.  Physical examination showed that there was 2-cm scalp laceration over occipital area with mild bleeding, tenderness over neck and lower back.  Lower limbs power mildly decreased due to pain, power at least grade 4.  There was mild superficial abrasion over left elbow.  He was admitted under the care of the Department of Orthopaedics and Traumatology of QEH. Examination showed scalp laceration, abrasions at the left elbow and the back, and tenderness at the neck and the back.  He was treated conservatively with analgesics and physiotherapy.  He was discharged on 20 August 2009.

50.  From 23 September to 5 November 2009, he attended 8 sessions of physiotherapy treatment.  On 8 October 2009, the Plaintiff attended the Accident and Emergency Department of Yan Chai Hospital for medical treatment.  Physical examination revealed that there was tenderness over lower back.  Analgesic injection was given.  He was treated and discharged.  He had a private MRI examination of lumbar spine in October 2009 showing multiple level of prolapsed intervertebral disc over lumbar spine with left S1 root compression.  Lumbar facet joint injection as well as sacroiliac joint injection were performed in May 2010.  He was referred to the Pain Clinic for further treatment.  He was treated with analgesics and physiotherapy. Other injections were also performed.

51.  On 8 June 2010, the Plaintiff was hospitalised again because of increasing back pain.  He was discharged on 4 August 2010. Thereafter he attended 8 sessions of physiotherapy treatment, and various injections were performed with temporary relief of pain in the back.

52.  On 3 May 2012, he was referred by the Orthopaedic and Traumatology Department of QEH for out-patient physiotherapy and he attended another 8 sessions of treatment.

53.  The Plaintiff was granted sick leave in the period from 7 August 2009 to 31 May 2011.  The Plaintiff was assessed by the Employees’ Compensation Board to have suffered 14.5% loss of earning capacity.

54.  The Plaintiff’s present complaint mainly relates to the pain in the lower back.  The Plaintiff also alleges that there is pain at the back of the head, left lower limb and right ear.  However, the neurologists engaged by the parties found that the Plaintiff has no neurological deficit and the headaches are probably the result of overtreatment with painkillers.  The single joint expert in otorhinolaryngology also found that the Plaintiff has suffered no hearing loss as a result of the accident.

55.  The Plaintiff’s and the 1^st Defendant’s orthopaedics experts are Dr Lam Chi Keung Johnson and Dr Chun Lam Yeung respectively.

56.  According to Dr Lam, though it is likely that the Plaintiff has pre-existing mild degenerative hypertrophic changes in the bilateral facet joints of L3/4, L4/5 and L5/S1, such changes are clinically and functionally insignificant as the Plaintiff had no symptoms before the accident.  Most people with such mild and yet common degeneration can continue to work till their normal retirement age without any problem.

57.  The significant left lateral recess L5/S1 protrusion is unlikely to be pre-existing and it is most probable that the Plaintiff suffers from more significant and at least moderate degree of soft tissue injury to the lower back, with or without causing or significantly aggravating disc protrusion, causing persistent pain and impairment in the lower back.

58.  On the other hand, Dr Chun considers that the annular tear and the small L5-S1 left side protruded disc are most unlikely to be caused by the accident.  The pre-existing degenerative changes are of significant advanced state and so, even without the accident, it is unlikely that the Plaintiff will go through his life unaffected by the pre-existing degeneration.  Further, the Plaintiff had exaggerated and magnified his symptoms and disability.  He is of the opinion that the Plaintiff is able to return to work as a general labourer.  According to Dr Chun, working is actually beneficial for his recovery.  He also disagrees with the medical assessment made by the Employees’ Compensation Board.

59.  Lower back pain always poses a problem in personal injuries claims.  As compared with other disabilities, lower back pain is very difficult to be verified with some objective evidence such as image reading shown in MRI examination.

60.  Dr Lam agrees that the Plaintiff might have exaggerated his symptoms during the examinations.  Inconsistent straight leg raising test results and the presence of inappropriate non-organic signs, which are Waddell’s signs casting doubt on the genuineness of the complaint, showed that the Plaintiff might have exaggerated his symptoms.  Yet both doctors agree that very few malingerers are totally without pain.  In exaggerating their symptoms, they may simply fear that they may be “placed back in a job situation that may be perceived as harmful”.  They may want to convey to the examiner that something is seriously wrong, or they may feel neglected and attempt to show distress to the doctors.

61.  Dr Lam has gone through the medical records of the Plaintiff throughout the years.  There was a history of complaints made by the Plaintiff for lower back pain.  On some occasions, the Plaintiff had to be hospitalised to receive treatments.  Further, various treatments received by the Plaintiff were invasive procedures with certain risks.  Under such circumstances, it was unlikely for the doctors to prescribe such treatments or for the Plaintiff to receive them unless the complaints of pain were genuine. Although the Plaintiff might have exaggerated the symptoms, Dr Lam is of the opinion that the Plaintiff is still suffering from moderate degree of lower back pain.

62.  Having considered the expert evidence and observed the Plaintiff in the witness box, I prefer to accept the opinion of Dr Lam.  Rather than just relying on the display of Waddell’s signs, Dr Lam has reviewed all the past relevant medical records in giving his opinion.  As agreed by Dr Chun himself, “very few things in medicine are black and white”. There may be different reasons for a patient to exaggerate his symptoms, and one should not just conclude that the Plaintiff is a liar because of the display of Waddell’s signs.  Dr Lam’s opinion is made after reviewing extensively the past medical history of the Plaintiff, and there are sound reasons to support his opinion.  To suggest that the Plaintiff has been exaggerating his pain since October 2009 at the expense of subjecting to all the risks associated with the invasive procedures is, in my judgement, not realistic.

63.  I also accept Dr Lam’s opinion that, since the Plaintiff’s former employment is physically demanding requiring the workers to perform a lot of strenuous duties, a moderate degree of pain in the lower back would prevent the Plaintiff from returning to his former employment.

64.  In considering the credibility of the Plaintiff’s evidence, I have not lost sight of the fact that he claimed to have a transient loss of consciousness shortly after the accident, a matter which is not supported by the ambulance record.  However, it is understandable that the Plaintiff would have been in a state of confusion shortly after the accident, and so I do not accept that the Plaintiff had fabricated such evidence in order to advance his own case.  I find that the mistake was a genuine one, and it should not affect the credibility of his evidence.

65.  In the Further Written Submissions, Mr Lim has referred me to a number of authorities, including Ho Moh v Tam Yiu Keung[12], Zahid Anwar v Sino Plan Development Ltd[13], Chan Mei Hing v Lam Kok Heng[14], Hung Sau Fung v Lai Pin Wai[15] and Au Yeung Long Tak v La Salle Primary School[16], with a view to show that the presence of Waddell’s signs may be fatal to a plaintiff’s claim on quantum.  However, the implication to be drawn from the presence of such signs is a question of fact depending on the circumstances of each individual case.  As I accept the Plaintiff’s evidence and Dr Lam’s opinion about the existing medical condition of the Plaintiff, I do not find that these cases can advance the Defendants’ case any further.

66.  There is also an issue about pre-existing injury which relates to the mild degenerative hypertrophic changes in the bilateral facet joints of L3/4, L4/5 and L5/S1.

67.  The Plaintiff gave evidence that before the accident, he was fit and healthy.  He did not suffer any back pain and could carry out his work without any problem.  He could also jump in and out of the truck and lift heavy weight.  As such evidence had not been challenged by the Defendants in cross-examination, I accept it to be the truth as being unchallenged evidence.[17]

68.  I also accept Dr Lam’s observation that, if the Plaintiff had suffered any back pain before the accident, it would have been very difficult for him to perform all the strenuous duties required by his pre-accident employment.  Hence, the absence of pain before the accident also supports Dr Lam’s opinion that the significant left lateral recess L5/S1 was not pre-existing.

69.  The approach of the court in considering the question of causation in light of the medical evidence has been set out by the Court of Appeal in Lee Kin Kai v Ocean Tramping Co Ltd[18] as follows:

(i) Causation is essentially a matter for the judge and not for the doctors;

(ii) The judge will be assisted by the medical evidence but is not bound by it.

(iii) The law and medicine apply different standards.

(iv) In law, there is a causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury.  A cause is sufficient, it does not need to be the sole cause.

(v) The doctors, on the other hand, practise the science of aetiology.  They look for “clinical cause” or “irrefragable chain of causation” which is to be proved beyond reasonable doubt or beyond any doubt.

(vi) The judge when considering causation is not only entitled, but is bound to use his common sense.

70.  In considering the cause of the Plaintiff’s back injury, the court is therefore not confined to the medical evidence but is entitled to look at all the surrounding circumstances and approach the matter with common sense.[19]

71.  It would be sufficient for the Plaintiff to prove, on the balance of probabilities, that the accident contributed substantially to causing the Plaintiff’s back injury or materially increased the risk of injuries and it matters not whether it was the sole cause.  Having considered all the circumstances of the present case, in particular the Plaintiff had not suffered any lower back pain before the accident and Dr Lam’s opinion that most of the mild degeneration may not be problematic, I find that his back condition must have been weakened and damaged by the injury sustained in the accident and that the accident contributed substantially to causing his disc protrusion or materially increased the risk of injury.

(ii)  Pain, suffering and loss of amenities (“PSLA”)

72.  I therefore proceed to assess the damages in light of these findings.  I start with the damages for PSLA.

73.  The Plaintiff has suffered moderate degree of lower back pain after the accident.  Having considered the authorities referred to me by the parties[20], I am of the view that the injuries and the permanent disabilities suffered by the Plaintiff fall slightly below the “serious injury” category.  In Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd[21], Bharwaney J held that the starting point of PSLA awards for “serious injury” category should be increased to $510,000.  I therefore award a sum of $400,000 as the damages for PSLA.

(iii)    Pre-trial loss of earnings

74.  Before the accident, the Plaintiff was employed by the 1^st Defendant as a general worker earning about $15,936 a month.  Although the relevant employer has not come to court to testify himself, I accept the Plaintiff’s evidence that, prior to the accident, he was also working as a part-time delivery worker earning about $4,750 a month.  His total monthly income before the accident was therefore $20,686.

75.  After the accident, the Plaintiff worked as a security guard from 14 December 2011 to September 2016.  In September 2016, his monthly income was about $10,000 to $11,000.  For the purpose of the present exercise, I adopt the median figure of $10,500 as the monthly income of the alternative employment after the accident.

76.  Although the Plaintiff might have exaggerated the extent of his pain in the medical examinations, I accept the Plaintiff’s evidence and Dr Lam’s opinion that the Plaintiff could not return to his pre-accident employment.  It is clear that the work of his former employment would require the Plaintiff to lift heavy objects and to bend his back frequently.  Under such circumstances, even a moderate degree of pain would prevent the Plaintiff to perform the same kind of work again.  Taking into account the injuries and his humble background, it was reasonable for the Plaintiff to take up the alternative employment as a security guard after the accident.

77.  Yu gave evidence that if the Plaintiff were stilling working for the 1^st Defendant, he would have earned $900-odd per pay with the same working days per month as he considers that the Plaintiff is a hardworking employee.  Such evidence is very consistent with the Government’s statistics which show that the average salary of general worker for construction work was $969.7 per day in August 2016 and $560.1 per day in August 2009.

78.  It follows that, but for the accident, the Plaintiff would have earned $25,212.2 per month as a general worker ($969.7 x 26 days).  In addition, he would have earned about $4,750 per month as a part-time delivery worker.  Hence, I adopt the figure of $29,962 as the present notional monthly income of the Plaintiff but for the accident.

79.  The median monthly income of the Plaintiff for the pre-trial period is therefore: ($20,686 + $29,962) ÷ 2 = $25,324

80.  The Plaintiff was granted sick leave from 7 August 2009 to 31 May 2011, which Dr Lam considers as appropriate in light of the pain suffered by the Plaintiff.  I allow the Plaintiff a period of 2 months to find alternative employment after the accident.  Hence, the Plaintiff’s pre-trial loss of earnings can be assessed as follows:

From 7 August 2009 to 31 July 2011:

$25,324 x 23.75 months = $601,445

From 1 August 2011 to 30 June 2017:

($25,324 - $10,500) x 71 months = $1,052,504

81.  As the Plaintiff is entitled to a sum equivalent to 5% of his loss of earnings as his loss of Mandatory Provident Fund contribution, his total pre-trial loss of earnings is therefore:

($601,445 + $1,052,504) x 105% = $1,736,646

(iv)  Future loss of earnings and loss of earning capacity

82.  The Plaintiff is now aged 40.  For the purpose of assessing the Plaintiff’s future loss of earnings, I would adopt the notional retirement age of 60.  The working life of the Plaintiff may be longer, but taking into account the strenuous duties required by his former employment and the mild degeneration of his back, I have some doubt as to whether the Plaintiff can continue to work as a general labourer after 60.

83.  According to Table 7 of Personal Injuries Tables Hong Kong 2016, the multiplier should be 15.55 based on a net rate of return of 2.5%.

84.  The future loss of earnings can therefore be assessed as follows:

($29,962 - $10,500) x 12 months x 15.5 x 105% = $3,800,928

85.  I decline to make any further award for loss of earning capacity.  The future loss of earnings is assessed on the basis that the Plaintiff can get the full difference between the income of his former employment and that of the post-accident alternative employment as a security guard.  In determining whether the Plaintiff would be put in a disadvantage position in the labour market so as to justify the making of a further award, the court should only consider whether the lower back pain would put the Plaintiff in a disadvantage position in the job market of security guards.  In my judgment, the moderate degree of lower back pain should have not affect such job prospect so I refuse to make any further award of loss of earning capacity.

(v)   Other special damages

86.  I also award the following special damages which have not been challenged in cross-examination:

(i) medical expenses	: $ 13,280
(ii) travelling expenses	: $ 4,000
(iii) tonic food expenses	: $ 5,000

87.  In conclusion, the quantum of the Plaintiff’s claim is as follows:

(i) PSLA	: $400,000
(ii) Pre-trial loss of earnings	: $1,736,646
(iii) Future loss of earnings	: $3,800,928
(iv) Other special damages	: $22,280
Less: employees’ compensation received	: $516,295
Total	:$5,443,559

88.  I also award interest on the damages for PSLA at 2% p.a. from the date of the writ to the date of judgment and 4% p.a. (being half the existing judgement rate) on pre-trial loss of earnings and other special damages from the date of accident to the date of judgment.  There would be interest at judgment rate from the date of judgment until payment.

89.  I therefore grant judgment against the 1^st Defendant for the amount as assessed above.  As against the 2^nd and 3^rd Defendants, I certify the quantum of the Plaintiff’s claim in the same amount.

CLAIM FOR CONTRIBUTION

90.  The 1^st Defendant has also issued contribution and indemnity notice against the 2^nd and 3^rd Defendants.  The 1^st Defendant asks for full indemnity of the Plaintiff’s claim on the ground that the accident was directly caused by the negligence of the 2^nd and 3^rd Defendants.

91.  I disagree that there should be full indemnity. Although the 2^nd Defendant is liable for the accident for pressing the wrong button of which the 3^rd Defendant is vicariously liable, the 1^st Defendant remained the direct employer of the Plaintiff.  As the employer, it had a non-delegable duty to provide a safe system and a safe place of work for the Plaintiff.  If the 1^st Defendant had discharged such duty, the accident could have been avoided.  Judging the blameworthiness of the parties, the 1^st Defendant on the one hand and the 2^nd and 3^rd Defendants on the other should bear equal responsibility for the accident.  I therefore hold that the 1^st Defendant is entitled to claim 50% contribution from the 2^nd and 3^rd Defendants in respect of the Plaintiff’s claim.

92.  I make a costs order nisi that: (i) the Plaintiff is entitled to the costs of the action against the 1^st Defendant and the costs of the assessment of damages proceedings against the 2^nd and 3^rd Defendants; (ii) the 1^st Defendant is entitled to the costs of the contribution proceedings against the 2^nd and 3^rd Defendants; and (iii) the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.  The order nisi shall be made absolute 14 days after the handing down of this Judgment.