MOHAMMAD SALEEM v. LAU WAI LEUNG t/a LEUNG KEE CO AND OTHERS

HCPI 914/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 914 OF 2011

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J U D G M E N T

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1.  This action for damages for personal injuries sustained in an accident at work has proceeded in an unusual manner.

2.  The action was brought against the 1^st defendant as the employer of the plaintiff, and against the 2^nd defendant as the occupier of a warehouse for the storage of building materials.  It was averred that the 1^st defendant was the sub-contractor of the 2^nd defendant and put in charge of the warehouse operations and related activities.

3.  The accident complained of occurred inside the warehouse on 26 December 2008 when the plaintiff was injured by rolls of plastic flooring sheets which had toppled and had fallen on him. The 1^st defendant did not acknowledge service of the writ of summons.  The 2^nd defendant acknowledged service and filed a defence by its director one, Chow Wai Lam, William.  It was specifically denied in the defence that the 2^nd defendant was an occupier of the warehouse and that the 1^st defendant was a sub-contractor of the 2^nd defendant. 

4.  On 9 July 2012, the plaintiff was directed to take out an application within 14 days for substituted service on the 1^st defendant.  Ultimately, an order for substituted service was made on 23 August 2012 and interlocutory judgment was entered against the 1^st defendant for damages to be assessed on 17 October 2012.  Less than 2 months later, the 3^rd defendant was granted leave to join in the proceedings.  The 3^rd defendant then took an active part in defending the proceedings on liability as well as on quantum.

5.  In his reply to the defence of the 3^rd defendant, the plaintiff averred that he had brought employees’ compensation proceedings against the 1^st and 2^nd defendants, and that, after a trial lasting 3 days, on 22 December 2011, judgment was given in his favour against both the 1^st and 2^nd defendants. Although the 1^st defendant had been absent, the 2^nd defendant was legally represented and defended the employees’ compensation proceedings. 

6.  The plaintiff relied on the following findings of the court as creating an issue estoppel against the 2^nd defendant, namely that:

(a)   the plaintiff was employed by the 1^st defendant as a labourer for the work of the warehouse;

(b)   the accident took place inside the warehouse in the course of employment;

(c)   the warehouse was occupied, operated and managed by the 2^nd defendant, and the goods stored at the warehouse belonged to the 2^nd defendant;

(d)   the 1^st defendant was appointed by the 2^nd defendant as a sub-contractor to manage and operate the warehouse; and

(e)   the plaintiff’s monthly wage at the time of the accident was $13,000.

7.  The 2^nd defendant was wound up on 24 April 2013.  Although the 2^nd defendant company had been wound up, the plaintiff was granted liberty to continue these proceedings against the company by an order of court made on 29 August 2013. 

8.  By the time of the trial, there had been a substantial degree of agreement reached between the plaintiff and the 3^rd defendant.  The plaintiff sought a judgment on liability against the 2^nd defendant and final judgment for damages against the 1^st and 2^nd defendants. The liquidators of the 2^nd defendant did not appear before me at the trial to contest the proceedings and I was informed by the 3^rd defendant at the trial that it was not making any submission on the issue of liability. The 1^st defendant was also absent.

9.  The plaintiff gave evidence and he relied on his 2 witness statements that he had made as his evidence-in-chief and he also confirmed that those witness statements were true and correct.  Counsel for the 3^rd defendant did not cross examine the plaintiff.  The plaintiff then closed his case and the 3^rd defendant confirmed that it would not adduce any evidence.  As I have said, the 1^st and the 2^nd defendants were absent.  I then adjourned the trial to a date to be fixed, if necessary, directing the parties to exchange final written submissions within 28 days.  Subsequently, I granted an extension of time to the parties to serve final submissions.

10.  The plaintiff served his final closing submissions on 8 June 2016.  The 3^rd defendant informed me on 10 June 2016 that the 3^rd defendant would make no submission on quantum.  Thereafter, a further confidential agreement was reached between the plaintiff and the 3^rd defendant. Consequent upon this further agreement, I was informed by the 3^rd defendant on 22 June 2016 to proceed with the assessment of damages “as per the plaintiff’s closing submissions dated 8 June 2016”. 

The Plaintiff’s Case on Liability against the 2^nd Defendant

11.  I accept the plaintiff’s evidence that he was employed by the 1^st defendant as a labourer and had worked for him for over 10 years prior to the accident that occurred on 26 December 2008.  From 2005 up to the date of the accident, he had been assigned by the 1^st defendant to work in a warehouse located at 428 Cha Kwo Ling Road in Yau Tong. 

12.  On the day of the accident, he had been working with 5 other workers loading and unloading goods in the warehouse.  In the afternoon, he worked with 2 co-workers to retrieve materials stored in the warehouse and to load them onto pallets.  At about 5:30 p.m., he tried to retrieve a roll of plastic flooring sheet. The roll was about 200 cm long, and weighed about 130 kg.  In the course of moving it, the roll in question bumped against other rolls of plastic flooring sheets.  As a result, 2 to 3 rolls toppled over and fell onto the plaintiff, and caused him to suffer personal injury.

13.  The accident was investigated by an occupational safety officer of the Labour Department, Mr Lee Ying Wai, and he prepared a report dated 22 June 2009 which I have received into evidence.  The report had been produced after his investigation into the accident which he had conducted on 29 December 2008 and on subsequent dates in 2009.  He found that there were many rolls of plastic flooring sheets stored in the warehouse.  A roll of plastic flooring sheet similar to that involved in the accident measured 200 cm long with a diameter of 28.5 cm.  In his report, Mr Leestated:

“5. Observation

It was revealed that the rolls of plastic flooring sheets stored in the warehouse just freely stood on the floor. There was not any means, such as banding, shrink or stretch wrap, to fix or stabilize the rolls of plastic flooring sheets. Moreover, there was no facility such as racks provided in the warehouse for storing these kinds of materials in a secure and stable condition. As they were of long cylindrical shape with high height to least base dimension ratio (by reckoning, the ratio of the flooring sheets in the warehouse ranged from 7 to 14:1), they were not stable and could topple easily. In addition, the risk could be further intensified as they were placed closely. Whenever a roll toppled, it was likely to induce a domino effect and could endanger other workers in the workplace. It was obvious that the rolls of plastic flooring sheets were not safely stored in the warehouse and also not being safely retrieved. In fact, a few rolls of plastic flooring sheets toppled when the I/P was retrieving one out of them. Consequently, the accident ensued. Even if the rolls of plastic flooring sheets were just bumped or contacted by a worker passing by, the said domino effect could be triggered and the result could be very serious as the weight of a roll was up to 150Kg.

The gathered information from the I/P and his co-worker, Mr. HAFIZ Hussain showed that LAU had failed to provide relevant safety instructions and supervision to them for storage and retrieval of the rolls of flooring sheets in the warehouse. Though LAU had worked with his workers (including the I/P) and had experienced the toppling of these kinds of materials in the warehouse before, LAU did not take any step to prevent the recurrence of similar incident. On the contrary, he still asked them to make the toppled rolls of flooring sheets to stand freely again and tolerated the hazard. Thus, an accident of falling object was foreseeable.

The deficiencies identified in the foregoing paragraphs clearly evinced that there was an absence of safe system of work for storage and retrieval of rolls of flooring sheets.”

14.  The occupational safety officer recommended that:

“6. Recommendation

6.1 A safe system of work should be provided and maintained for storage and retrieval of the rolls of flooring sheets. It should include, but is not limit to, the following aspects:

i) Risk assessment should be conducted to identify all potential hazards associated with the work;

ii) Suitable storage method should be adopted to ensure the safe storage of rolls of flooring sheets, such as:

(a) employing suitable racking system which is properly designed and installed;

(b) using suitable fixing devices; and/or

(c) adopting suitable and safe stacking method;

iii) Proper work procedures should be adopted to ensure the retrieving of the materials is in a safe and orderly manner. Also, suitable mechanical aid should be provided when necessary; and

iv) Adequate steps should be taken to ensure that workers strictly follow the safe work procedures.

6.2   Adequate safety information, instruction, training and supervision should be provided to ensure the full implementation of safe system of work devised for the storage and retrieval of goods in the warehouse.”   

15.  I accept the plaintiff’s case that an issue estoppel arises against the 2^nd defendant in respect of the facts and matters set out in §6 above.  I also find, based on the admissions made by Ms Li Sau Ying in her statement to Mr Lee of the Labour Department dated 17 March 2009, that she was the company supervisor of the 2^nd defendant in charge of its administration and accounts, that the warehouse was owned by the 2^nd defendant, that the materials stored in the warehouse belonged to the 2^nd defendant, and that, although the daily operation of the warehouse was sub-contracted to the 1^st defendant, the 2^nd defendant could despatch its employees to inspect the warehouse when necessary.  I also accept the findings of the occupational safety officer.

16.  I find the 2^nd defendant liable for breach of occupiers’ liability infailing to adopt a suitable storage and retrieval method to ensure the safe storage and safe retrieval of the rolls of flooring sheets that were stored in the warehouse.  I find that the 2^nd defendant failed in his duty to protect the plaintiff, a lawful visitor to the warehouse that was occupied by the 2^nd defendant, from the foreseeable risk of being struck by the rolls of flooring sheets that were stored and stood freely in the warehouse.  The 2^nd defendant is liable, as occupier of the warehouse, for breach of the duty it owed to the plaintiff, as a lawful visitor to the warehouse, in respect of the dangers due to the state of the warehouse premises and to things done and omitted to be done on them.

17.  No issue of contributory negligence on the part of the plaintiff arises in these proceedings.

The Plaintiff’s Case on Quantum

18.  The plaintiff was born in 20 February 1969, and was just short of 40 years of age on the date of the accident on 26 December 2008.  He was 48 years old this February.

19.  His injuries and treatment are well documented in the medical records and reports which are in the trial bundles.  In addition, I received into evidence the expert opinion of Dr Choi Sum Hung who had made a joint medical report with Dr Lee Po Chin dated 25 September 2011 and a joint medical report with Dr Chun Siu Yeung dated 14 October 2014.  The opinion of Dr Lee Po Chin, contained in the first joint report, has been redacted pursuant to a previous order made by the master.  Dr Chun Siu Yeung was instructed by the 3^rd defendant to make a joint report together with Dr Choi.  As the 3^rd defendant has decided not to adduce any evidence on quantum, I do not admit into evidence the opinion of Dr Chun Siu Yeung contained in the second joint report I have referred to. 

20.  The plaintiff was brought to United Christian Hospital on the day of the accident and was admitted into hospital, where he stayed until his discharge on 7 January 2009. The following findings are documented in the medical reports:

(i) superficial abrasion on right side neck, non-tender at midline cervical spine;

(ii) tender at anterior left shoulder;

(iii) left forearm swelling & tender / diffused tenderness and swelling & refused to move left elbow;

(iv) mild tenderness at anterior upper right thigh;

(v) abrasion wound at right low back/waist with no midline tenderness.  Diffused lower thoracic and lumbar spine tenderness;

(vi) no lower limb weakness or numbness, SLR 70 degrees bilaterally, intact lower limb sensation;

(vii) x-ray and CT scan showed no fracture at these regions.

21.  Two days after the accident, the plaintiff started to complain of severe whole left upper limb pain. However, a neurological examination did not show any impairment of the four limbs.  He received physiotherapy and occupational therapy during his hospitalisation but no improvement was noted.

22.  He was again hospitalized from 1 February 2009 to 2 February 2009 at the Caritas Medical Centre for left-sided body pain.  When followed up on 9 February 2009 he was on a wheel chair and, in addition to the left forearm pain and lower back and bilateral thigh pain, also complained of scrotal pain. 

23.  The plaintiff was diagnosed as suffering from complex regional pain syndrome (“CRPS”).  He underwent an elective procedure in United Christian Hospital on 9 March 2011 and was kept as an inpatient until 14 March 2011.  Dr T Brake and Dr K L Chu performed a left intra-clavicular brachial plexus catheter insertion with the intention of treating CRPS.  There was good pain control. However, the plaintiff was unable to move his left hand.  This was attributed to the local anaesthetic causing motor block and so the local anaesthetic was down-titrated which eventually improved the numbness and motor block.

24.  According to the medical report dated 16 January 2013 prepared by Dr K L Chu of the Department of Anaesthesia at the United Christian Hospital, the plaintiff felt that the range of motion of his left upper limb had improved somewhat since the procedure. However, he still complained of left upper limb stiffness, burning pain, discolouration and increased temperature.  He was prescribed analgesics and continued to be followed up by the Pain Clinic.

25.  A Medical Assessment Board was convened on 17 March 2011 and a review was conducted on 14 July 2011. It was reported that the plaintiff suffered a 3% loss of earning capacity for left upper limb pain and weakness and back pain.

Pain Suffering and Loss of Amenities (“PSLA”)

26.  Dr Choi accepted that the diagnosis of CRPS is challenging[1]. However, I do not need to make any findings as to whether or not the plaintiff, indeed, suffered from CRPS.  The plaintiff has limited his claims for damages for PSLA to the sum $250,000. This is an award which I readily make for the plaintiff’s persistent neuropathic pain in his upper left arm, with features suggestive of CRPS. I find that his pain was genuine and severe enough to lead him to accept and undertake an elective procedure whereby a left intra-clavicular brachial plexus catheter was inserted to enable the administration of local anaesthetic, via the catheter, with a view to blocking the pain that he suffered from.

Loss of Earnings

27.  I accept the opinion of Dr Choi that, given the impairment of the plaintiff’s left upper limb, he would not be able to resume his original work as a general labourer, although he would be able to take up light duties such as that of a messenger. I also accept the evidence that the plaintiff gave at the trial, that his condition had improved and that, although he could not return to work as a labourer, he would be able to sit in a shop and work as a cashier. 

28.  I also accept the opinion of Dr Choi that, given the severity of the condition of his upper limb, a period of sick leave of 2 years was reasonable.  I accept the plaintiff’s submission that a further period of 3 months was reasonable for the plaintiff to find suitable employment, particularly having regard to his long absence from work, and his residual disabilities.

29.  I accept the plaintiff’s evidence that he was working 26 days a month at the time of the accident.  I find that he earned $13,000 a month at the time.  I find that his earnings would have increased with the passage of time and I award damages for loss of earnings to the plaintiff as follows.

30.  I have had regard to the statistics kept by the Census and Statistics Department of average daily wages of workers engaged public sector construction projects. These statistics show that average daily wages for general labourers at construction sites have been $581.7 in December 2008, $604.6 in March 2011 and $1,051.8 in March 2017.  The increase in wages from December 2008 to March 2011 has been about 4%.  The increase in wages from March 2011 to March 2017 has been about 74%.  I find that the plaintiff’s notional wages as a general labourer would also have increased to the same extent during this period of time.  The plaintiff earned $13,000 in December 2008 working 26 days in a month. A general labourer on a public sector construction site would have earned $15,124 in December 2008 working 26 days in a month, i.e. about 16% more than the plaintiff earned.

31.  I award full pre-trial loss of earnings to the plaintiff as follows:

(a) His median notional earnings from December 2008 to March 2011 would have been $13,260 ($13,000 + ($13,000 x 104% = $13,520)/ 2).

(b) Accordingly, his loss of earnings from December 2008 to March 2011 would be $358,020 ($13,260 x 27 months).  His loss of MPF benefits increased this loss to $375,921 ($358,020 x 105%).

32.  I award pre-trial partial loss of earnings to the plaintiff on the basis that he ought to have obtained gainful employment as a cashier from end March or early April 2011.  The Census and Statistics Department only started keeping statistics of the average monthly salaries of cashiers from March 2014 ($10,736 per month).  The latest statistics in December 2016 show average monthly salaries of $11,655, an increase of about 8.5%.  The average monthly earnings of messengers have increased about 15.5% from March 2011 ($8,737) to March 2014 ($10,096).  The latest statistics in December 2016 show average monthly earnings of messengers of $10,740, an increase of about 6% from March 2014.  Doing the best I can on the available evidence, I adopt a percentage increase of about 15% to reflect the increase in the earnings of cashiers from March 2011 to March 2014.  On that basis, the earnings of cashiers ought to have been in the region of $9,350 in March 2011. The increase of earnings of cashiers from $9,350 in March 2011 to $11,655 in December 2016 has been about 25%.

33.  Based on these findings, I calculate the median notional earnings of the plaintiff as a general labourer from April 2011 to mid-June 2017 to be $18,523 ($13,520 + ($13,520 x 174% = $23,525)/ 2) and I calculate the median notional earnings of a cashier from April 2011 to mid-June 2017 to be $10,503 ($9,350 + $11,655 = $21,005)/ 2).  The partial loss of earnings from April 2011 to mid-June 2017 is $597,490 ($18,523 - $10,503 = $8,020 x 74.5 months).  His loss of MPF benefits increased this loss to $627,365 ($597,490 x 105%).

34.  The plaintiff turned 48 years of age in February this year. I find that, but for the accident, he would have worked as a general labourer until the age of 60.  As his future loss exceeds a period of 10 years, I apply a discount rate of 2.5% and I take the multiplier of 10.23 from Table 9 of the Chan Tables[2] for a man aged 48 who would have retired at 60. The plaintiff’s current partial monthly loss of earnings is $11,870 ($23,525 - $11,655). His future partial loss of earnings amounts to $1,457,161 ($11,870 x 12 months x 10.23).  His loss of MPF benefits increases his future loss of earnings to $1,530,019 ($1,457,161 x 105%).

35.  I am not satisfied that the plaintiff’s claim for loss of earning capacity has been established.

36.  I award pre-trial full loss of earnings in the sum of $375,921, pre-trial partial loss of earnings in the sum of $627,365, and future loss of earnings in the sum of $1,530,019.

Special Damages

37.  The plaintiff has satisfied me that he incurred pre-trial expenses in the sum of $14,586 and I award this amount as special damages.  I am not satisfied that the plaintiff’s claim for gratuitous services has been established.

Employees’ Compensation

38.  Employees’ compensation was awarded to the plaintiff against the 1^st and 2^nd defendants in the sum of $853,506. He received this amount, not from the 1^st or 2^nd defendant but from his former solicitors who had been negligent in failing to give notice of the employees’ compensation proceedings to the 3^rd defendant.

Interest

39.  I award interest on general damages for PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgment. I award interest on pre-trial full loss of earnings, pre-trial partial loss of earnings and on special damages at the rate of 4% per annum from the date of the accident to the date of payment of employees’ compensation and, thereafter, at the same rate on the remaining balance, after deduction of the employees’ compensation, from the date of payment of employees’ compensation to the date of judgment.

Summary

40.  A summary of my award is as follows:

PSLA		$250,000 and Interest
Pre-trial Full Loss of Earnings & MPF Benefits		$375,921 and Interest
Pre-trial Partial Loss of Earnings & MPF Benefits		$627,365 and Interest
Future Loss of Earnings & MPF Benefits		$1,530,019
Special Damages		$14,586 and Interest
Sub-total:		$2,797,891 and Interest
Less  Employees’ Compensation paid		($853,506)
Net award:		$1,944,385 and Interest

Costs

41.  The plaintiff only seeks an order of costs against the 1^st and 2^nd defendants which I hereby award to him.  I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.