HUNG CHOR CHUEN v. PANG KOON WAI AND OTHERS

HCPI 294/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.294 OF 2003

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J U D G M E N T

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1. The plaintiff is claiming damages for Post Traumatic Stress Disorder (PTSD). The trial covered both liability and quantum.

BACKGROUND

2. The plaintiff was a driver of 24 tons goods vehicle between Hong Kong and the Mainland. On 2 August 2001 at about 9:15 a.m., he was driving his lorry at the Lok Ma Chau Border Control Point, passing a construction site on his right. On the site was a drilling machine converted from a pile driver. The vertical leader of the pile driver was 24 metres above ground level, supported by backstays on the left and right hand sides, rising from a carriage mounted on a crawler tractor. Suddenly, the leader collapsed and crushed onto the goods compartment behind the cab of the lorry.

3. At the material time, the 1st defendant was the operator of the drilling machine; the 2nd defendant was the employer of the 1st defendant and the owner of the drilling machine, and a sub-contractor of the 3rd defendant, the principal contractor of the site.

4. On 26 February 2002, the 3rd defendant pleaded guilty before a magistrate to the charge of being the owner of a lifting appliance, namely a pile driver, did fail to ensure that it was not used unless it was of good mechanical construction, made of strong and sound materials, and free from patent defect, contrary to regulations 4(a) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (Cap.59).

5. The 2nd defendant was prosecuted for the same offence, but was acquitted upon the prosecution offering no further evidence during the trial on 15 May 2002.

6. The plaintiff did not suffer physical injury. In September 2001, the plaintiff resumed driving after the lorry was repaired. In December 2001, the plaintiff first sought medical consultation on PTSD. In March 2002, the plaintiff stopped driving altogether after an accident.

7. The defendants did not dispute there was a certain degree of PTSD, but took issue that the plaintiff could not resume driving at all.

LIABILITY

The plaintiff's case

8. Mr Wu, for the plaintiff, framed the case against the defendants, inter alia, as follows :

(1) the 1st defendant : negligent control of the drilling machine;

(2) the 2nd defendant : vicariously liability for the 1st defendant and failing to ensure the drilling machine was safe and properly maintained and for allowing it to collapse;

(3) the 3rd defendant : allowing an unsafe and improperly maintained drilling machine to be used on the site and in breach of statutory duty as evidence by the conviction referred to above.

9. The plaintiff relied on the declaration dated 4 October 2001 made by the 1st defendant to the Labour Department and his evidence given at the trial of the 2nd defendant before the magistrate. The 1st defendant said he alighted from the drilling machine without switching off the engine despite it was practicable to do so, and when he got off the cab, he might have accidentally and inadvertently come into contact with the lever controlling the backstay.

10. The plaintiff also relied on the declaration dated 20 November 2001 of Mr Yip Wing Cheong, Safety Officer of the 3rd defendant, to the Labour Department, Mr Yip stated that the 2nd and 3rd defendants jointly administered and controlled the drilling machine and the duties of the 1st defendant.

11. Mr Wu referred to the Revised Incident Report dated 4 September 2001 submitted by the 3rd defendant to the Architectural Services Department as follows :

"Obviously, this incident was caused by human error which the operator: (a) failed to switch off the running engine before he left the control cabin; (b) one of the backstay control levers was accidentally operated."

12. The plaintiff also relied on the Dangerous Occurrence Report prepared by Mr Wong Chau Yu, Occupational Safety Officer of the Labour Department as to the possible causes of the accident.

13. The Dangerous Occurrence Report stated that as the 1st defendant did not switch off the drilling machine when he left the cab and might have struck the lever of the left hand side jack inadvertently, the left hand side jack continued to retract without anyone's notice.

14. The Dangerous Occurrence Report also stated that the thread engagement between the nuts and bolts connecting the upper carriage and the lower chassis of the drilling machine was deficient. When the backstay retracted, the leader carrying the load started to tilt gradually. The nuts and bolts could not withstand the load created by the tilting leader with its loads. The fracture of the nuts was due to :

(1) clearance between the nuts and bolts was too big and the area of engagement of the nuts and bolts was significantly reduced; and

(2) the nuts and bolts could not provide the designed strength to the joint between the upper carriage and the lower part of the machine due to insufficient thread engagement between the nuts and bolts.

15. Upon pleading guilty before the magistrate, the 3rd defendant admitted the following facts :

"3.1 The upper carriage of the machine was mounted onto the lower part (which consisted of crawler chassis) of the machine by means of 28 sets of bolts and nuts through a slewing table. All bolts and nuts had been torn away and disconnected after the incident;

3.2 the clearance between the bolt and nut was too big that the area of the engagement between the threads of the bolt and nut was significantly reduced. As the strength of a bolt and nut depends upon the circumferential area of engagement between the threads of the bolt and nut, in such condition, the bolts and nuts could not provide the designated strength to the joint between the upper carriage and the lower part of the machine due to insufficient thread engagement between the bolts and nuts. The upper carriage subsequently overturned as the bolts and nuts on the slewing table cold not sustain the overturning moment;

3.3. Defendant company was the principal contractor of the site and an owner under this regulation. She failed to take concrete action to ensure the sub-contractor did not bring in unsound machinery by physical checking, monitoring the maintenance or inspection programme."

16. Further, Mr Wu submitted that it is a nuisance upon the highway if some artificial projection falls onto the highway and causes injury to a highway (see Castle v. St Augustine's Links Ltd and Another (1922) 38 TLR 615).

17. Mr Wu also relied on the principle of res ipsa loquitur.

The defence case

18. In the Amended Defence filed during the trial, Mr Law for the 1st to 3rd defendants pleaded that the collapse of the drilling machine was due to the retraction of the left hand side backstay caused by the accidental activation of the control lever by the 1st defendant which was a purely involuntary bodily and without any fault or negligence on the part of the 1st defendant, whereby the 2nd defendant was not vicariously liable. Further, the drilling machine was of good mechanical construction and the nuts and bolts at the joint between the upper carriage and the lower part of the machine were not the cause of or in any way contributed to the collapse of the drilling machine.

19. Mr Law relied on the Investigation Report dated 1 September 2001 by Mr Wilkin W.K. Lam, engineering expert engaged by the 3rd defendant. In the Investigation Report, Mr Lam put forward two scenarios :

(1) Assumption I : Failure of the slewing bolts was because of machine overstress, nuts untightening or deterioration of bolts.

(2) Assumption II : Retraction of left hand side backstay hydraulic ram and caused the leader tilted to the left hand side and tipped over as result.

20. Assumption I referred to the scenario of the collapse of the leader due to the failure of the nuts and bolt simplisciter without any prior tilting of the leader. Mr Lam dismissed this assumption because the drilling machine collapsed at 90° to the left. If the nuts were untightened or the bolts had deteriorated, the machine should tip over either to the front end or the rear end.

21. Assumption II referred to the collapse of the drilling machine as a result of the retraction of the left hand side backstay causing the leader to tilt. Mr Lam postulated that the nuts sheared off causing the upper carriage to be separated from the undercarriage rather than the whole machine overturning altogether with the undercarriage was due to the cohesive strength of the wet soil materials on which the machine was resting. Mr Lam observed from the photographs as well as site visit that there was a layer of soil material of approximately 100 to 150 mm thick. He made certain assumption about the cohesive strength of this layer of soil, and made his conclusion as stated above.

CONSIDERATION OF LIABILITY

22. The principle of res ipsa loquitur was stated by Sir William Erle CJ in Scott v. London and St. Katherine's Docks Co. (1865) 3 H & C 596, 601 as follows :

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such that as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose out of want of care."

23. The maxim has been held to apply to a case where a crane toppled over (see Swan v. Salisbury Construction Co. [1966] 1 WLR 204). In the present case, there is more to it than a reasonable inference in the absence of an explanation.

24. As to the inadvertent contact of the control lever, Mr Law accepted the argument that if there were no need for the 1st defendant to switch off the drilling machine before alighting, it would be purely an accident, but if there were need to switch it off as a safety precaution, then the 1st defendant would be negligent. I hold that the 1st defendant was clearly negligent in leaving the cab without switching off the drilling machine. Had the machine been switched off, any inadvertent contact of the control lever would have not caused the retraction of the left backstay. In fact, in the Revised Incident Report of the 3rd defendant, it was recommended, inter alia, that the operator must not leave the cabin with the engine running. I find this a fair appraisal of the position. Hence, I find the 1st defendant negligent, and the 2nd defendant vicariously liable.

25. As to the failure of the nuts and bolts, it is not the allegation of the plaintiff that the drilling machine collapsed because of the failure of the nuts and bolts simplisciter in the absence of any tilting. Hence, Assumption I is irrelevant. On Assumption II and the cohesive strength of the soil, Mr Lam did not take into account that the 3rd defendant had admitted before the magistrate that due to the insufficient thread engagement between the bolts and nuts, the upper carriage subsequently overturned as the bolts and nuts on the slewing table cold not sustain the overturning moment. Nor did the 3rd defendant call any evidence to rebut or explain this admitted fact. Hence, I find the 3rd defendant liable as the joint controller of the drilling machine and permitted it to be used while it was not safe to do so, as well as in breach of statutory duty as the principal contractor of the site as per the conviction.

QUANTUM

The plaintiff's case

26. The plaintiff was born on 27 February 1957. He was 46 at the time of the accident, and 49 now.

27. The plaintiff did not receive physical injury. However, right after the accident, he often had déjàvu of the drilling machine crushing on his lorry, and suffered from insomnia, nightmares causing him to wake up at night, was easily frightened even by slight noises, easily excited and over reacting. He was afraid of driving, but because of financial need, he reluctantly resumed driving in September 2001 after the lorry was repaired. Even then, he was afraid of passing construction sites, easily disturbed by headlights of vehicles, and the news of traffic accident.

28. The plaintiff's wife said the plaintiff complained that he was not alright and she asked him not to resume driving in September 2001. He suffered from insomnia, was often lacking in concentration, had bloodshot eyes and tears, and trembling with goose pimples. He would cry and mutter to himself. His memory deteriorated. He would tremble whenever he watched news of traffic accident on television. She repeatedly asked him not to drive but he said the family would starve.

29. On 4 December 2001, the plaintiff consulted Dr Sylvia Chen of the Department of Psychiatry of the Precious Blood Hospital. The medical notes recorded that he complained of nightmares with no escape without dying. He was scared and shuddered when passing construction sites, not wanted to walk near them but to take a detour. It became worse after nightmares. He was not able to control his lorry as a normal person. He was prescribed medication which caused him drowsiness.

30. On 2 January 2002, the plaintiff consulted Dr Karen Shum. Dr Shum recorded that the plaintiff experienced disabling PTSD symptoms in the form of insomnia, frequent nightmares, heightened anxiety and irritability, and avoidance symptoms in his work.

31. The plaintiff said Dr Shum advised him not to drive temporarily, but he did not take the advice. He tried to overcome his fear in driving until he had further accidents.

32. In early 2002, the plaintiff had a minor accident. He hit a tree when reversing. He said he was absent minded, had hallucination, shuddered and hands shaking. There was no physical injury nor damage to the lorry.

33. On 7 March 2002 at 4:30 a.m., he had a more serious accident. He was heading towards Hong Kong and he passed by the Huang Gang section. He suddenly had image of the accident on 8 August 2001. He saw a shadow rushing towards him. He shuddered and applied the brake too late and collided with the dump truck in front. There were damages to both vehicles.

34. After the accident on 7 March 2002, the plaintiff stopped driving altogether.

35. On 26 April 2002, the plaintiff consulted the Caritas Medical Centre. From March 2003 on, he consulted the Yung Fung Shee Psychiatric Centre of the United Christian Hospital. According to the record of the psychiatric centre, the plaintiff had expressed the wish to resume driving.

36. On 15 September 2003, the plaintiff was examined by his own expert psychiatrist Dr Chung See Yuen. Dr Chung said the plaintiff was suffering from PTSD. The symptoms of PTSD usually show improvement a few months after the traumatic event. It is not common that the plaintiff's mental problem was still significant despite more than two years have elapsed. There was no indication that the plaintiff had a pre-existing mental problem and there were no other causes that could explain the persistent mental problems. Dr Chung believed his complaint was genuine and the accident was the sole cause of the disorder. The mental disorder was consistent with the accident although it had not run a common course. Dr Chung believed that the plaintiff is mentally not fit to return to work as a driver. Although the fear of driving is a treatable condition, it is not advisable for him to undergo treatment because it is likely that his mental condition will deteriorate when he drives and the outcome of treatment is probably not favourable. The plaintiff needs to continue treatment at the psychiatric centre for three more years, and it is likely that he will continue to suffer from residual mental problem for several years to come.

37. The plaintiff was unemployed for a year from 8 March 2002 until 1 March 2003 when he was employed as a night shift caretaker. Before the accident on 2 August 2001, he used to work 28 days a month, and was earning an average of $26,000 per month. He is paid $7,000 per month as caretaker.

The defence case

38. The plaintiff's haulage record showed that after he resumed driving in September 2001, he worked almost continuously without taking leave, and his monthly income exceeded that prior to the accident. He was definitely no less productive than before the accident.

39. On 27 August 2003, the plaintiff was examined by Dr Ho Pang Nin, the defence expert in psychiatry. Dr Ho concluded that the plaintiff was likely to have suffered from some symptoms of PTSD in relation to the accident on 2 August 2001, but his condition of PTSD, if present, was mild and sub-clinical only before he had the accident on 7 March 2002. Dr Ho queried that it would be quite inconceivable that the plaintiff could drive for long hours across the border for six months with no major problem should he really be suffering from intense symptoms of PTSD. Persistent avoidance of the stimuli associated with the accident is one of the major diagnostic criteria of PTSD and the plaintiff's continuous driving for long period was definitely incompatible with it. Dr Ho said it might be difficult to determine the exact cause of the second accident. Should his account be genuine, anxiety factor might be relevant though it was difficult to be exactly certain whether that or carelessness related to anxiety would be the sole cause, or whether there could be other factors involved. Dr Ho said the plaintiff's PTSD symptoms were very mild only and with some more intensive treatment like behaviour therapy dealing with fear of driving, there was no strong reasons why he could not return to driving permanently.

40. The defence also produced surveillance tapes taken in June 2004 showing the plaintiff's activities on the street. The plaintiff was seen riding on the bus, crossing busy road with passing vehicles. He was also seen playing chess in the park.

Assessment of the evidence on quantum

41. Much in dispute is whether the plaintiff has exaggerated his condition prior to the cessation of driving, and whether he is genuinely unable to drive permanently.

42. Mr Law suggested that the plaintiff exaggerated that he was earning an average of $26,000 per month prior to the accident. His tax returns show assessable income for 2000/2001 and 2001/2002 was between $20,000 and $21,000 per month.

43. On the other hand, Mr Wu submitted that because the effect of PTSD was only fully felt six months after the accident, the average figure including that 6 months period should be adjusted to $24,000 per month. Although it was still lower than $26,000 as claimed, there was no deliberate exaggeration since all income documents were disclosed.

44. Mr Law also queried that while the plaintiff claimed that he could not drive like a normal person, and had to avoid construction sites and take a detour, he had driven pass the scene of the accident time and again, and at all material times, the construction was still in progress. The plaintiff explained that he had taken lanes further away from the construction site to lessen the impact.

45. Mr Law also submitted that while in the normal course the severity of PTSD would attenuate with the passage of time, the trend was contrary for the plaintiff. Further, not only was there no gradual decline in income, his income actually exceeded that before the accident until he suddenly ceased driving after the accident on 7 March 2002.

46. Mr Wu submitted that it was will power combined with financial burden which enabled the plaintiff to do it. But with the accident in March 2002, the plaintiff finally said enough is enough.

47. I note that neither Dr Chen, Dr Shum nor Dr Chung referred to the intense driving during the six months after the accident. Dr Chung considered the plaintiff's case not running the common course, and concluded that although fear of driving could be treated, he feared that it would not be beneficial for the plaintiff. I daresay had Dr Chung been presented with the evidence of the plaintiff's intense driving during the six months after the accident and been able to fully consider the matter, his opinion might have been somewhat different.

48. Whether the plaintiff was in fear of driving is very much a subjective matter, granted that objectively, he did have an awesome experience of a pile driver crushing on his lorry. However, if one were suffering from insomnia and nightmares and could not sleep well to the extent of lack of concentration and with bloodshot eyes as he and his wife had claimed, I failed to see how the plaintiff could have been driving so vigorously and be as productive as the haulage record showed. After all, sleepiness during long haul driving is very difficult to overcome.

49. The plaintiff was cross-examined as to who referred him to Dr Shum and he said he could not remember. He also said he never consulted any lawyer before he applied for legal aid. However, when shown Dr Shum's record that he was referred by a solicitor, the plaintiff suddenly remembered that he was referred by his present solicitor. He said he tried to claim against his medical insurance for hallucination. The insurance agent said the policy only covered hospitalization. The agent introduced him to his present solicitor, who referred him to Dr Shum. Later he applied for legal aid and the same solicitor was assigned to him. I see nothing unusual about a solicitor referring a client to seek medical advice. I fail to see why the plaintiff needs to be so circumspect about the matter. Mr Wu submitted that it was PTSD playing tricks on his memory. But on another important matter, the accident in March 2002, the plaintiff also said he could not remember what exactly happened when cross-examined on the details. His memory does not seem to have been affected in other aspects. I am not impressed by the plaintiff as a witness.

50. After careful consideration, I find that the plaintiff had exaggerated his symptoms of PTSD. I do not accept his evidence that during the six months after the accident, he was so affected by PTSD but was able to overcome the fear and insomnia and continued driving until the accident in March 2002 whereby he could no longer resume driving. With respect, I reject Dr Chung's opinion.

51. Dr Ho said the accident in March 2002 could be due to anxiety and carelessness as a result of PTSD after the first accident, provided that the plaintiff's account was genuine.

52. As I do not accept the evidence of the plaintiff, I am not satisfied that either the accident on 7 March 2002, or the cessation of driving afterwards was caused by PTSD resulting from the accident on 2 August 2001.

Pain and suffering and loss of amenities (PSLA)

53. Mr Wu is pitching PSLA at the low end of serious injury category on the basis that PTSD leaves the plaintiff with a disability which mars his general activities and enjoyment of life in respect of driving but allows him with reasonable ability. The range of claim is between $400,000 to $500,000. As I have rejected the claim that he was under permanent disability in driving, the claim is too high.

54. Mr Law suggested $250,000 on the basis that the plaintiff does suffer some symptoms of PTSD but is still able to resume driving and the former employment. I agree with Mr Law and I allow $250,000 on PSLA.

Pre-trial loss of earnings

55. The plaintiff stopped work from 2 August to 11 September 2001 (1.3 months) when the lorry was being repaired.

56. Mr Wu suggested the figure of $24,219 per month, taking into account the six months period after the accident, on the basis that FTSD resulting in disability to drive only occurred after the accident on 7 March 2002. As I have rejected the disability to drive claim, this figure is not appropriate.

57. Mr Law suggested the figure of $20,236 per month as per the tax return, with notional reduction of 20% at the time of trial, giving the median of $18,213.

58. As to notional reduction, the six months period actually showed an increase in income for the plaintiff, whether due to personal endeavours or the general economy, or both. Hence, I shall simply adopt the round figure of $21,000 per month as per the last tax return.

59. The loss of earnings for the period during the repair of the lorry is $27,300.

60. After the accident on 7 March 2002, the plaintiff stopped work until 1 March 2003. Strictly speaking, as I have rejected the evidence on permanent disability in driving, I cannot be satisfied that the plaintiff is in genuine fear of driving, albeit to a lesser degree, and there is no evidence to support the unpleaded claim of temporary disability in driving pending treatment of fear of driving. Be that as it may, Mr Law is willing to concede compensation on the basis of temporary disability in driving during treatment of fear of driving for the notional period of one year. Hence, I shall allow such compensation for the period of one year, with reduction of notional employment as caretaker. And the loss is ($21,000 - $7,000) x 12 months = $168,000.

61. After the notional treatment, there will be no further loss for the remaining period before trial.

Post-trial loss of earnings

62. As I have rejected the claim of permanent disability in driving, there will be no loss post trial.

Loss of earning capacity

63. Dr Ho gave the assessment of 3% impairment of the whole person by reason of PTSD. Mr Law suggested the figure of $100,000. It is higher than the claim of $84,000 (albeit on the basis that the claim of permanent disability in driving would have resulted in loss of earnings). I shall allow the figure of $100,000.

Future treatment

64. The plaintiff has for the past two years been on public health. Dr Chung suggested the cost of $18,000 as a private patient. Taking into account the conceded need for treatment for fear of driving, I consider it reasonable to allow $18,000.

Special damages

65. All the heads of special damages except the consultation fees of Dr Karen Shum are agreed by Mr Law, and those fees are not disputed if claimed under disbursement. To avoid any unnecessary complication, I shall allow the claim of $20,760 in full.

The award

66. In summary, the damages awarded are as follows :

PSLA	$250,000
Pre-trial loss of earnings	$195,300
Loss of earning capacity	$100,000
Future treatment	$18,000
Special damages	$20,760
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	$584,060

67. Judgement is entered against the 1st to 3rd defendants in the sum of $584,000.

Interest

68. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

69. I shall make an order nisi that the 1st to 3rd defendants do pay to the plaintiff costs of the action. The plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations.