FUNG TAK YAU v. CHOW WAH TIM t/a CHUNG WAH TRANSPORTATION CO AND ANOTHER

HCPI 973/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 973 OF 2006

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D E C I S I O N

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Introduction

1. This is an action for personal injuries arising out of an accident sustained by the Plaintiff, Mr Fung Tak Yau, whilst he was working on board a container vessel shortly after midnight on 16 June 2004.

2. The 2^nd Defendant was the principal contractor responsible for unloading containers from the vessel in question.  The 1^st Defendant was a sub-contractor of the 2^nd Defendant for the unloading operation.

3. The Plaintiff, who was born on 11 August 1963 and was aged 40 at the date of the accident, was employed by the 1^st Defendant as a cargo handler.

4. The Plaintiff alleges that his injuries were caused by the negligence and/or breach of contract on the part of the 1^st Defendant as his employer, for which he alleges the 2^nd Defendant was vicariously liable.  He also alleges in the alternative that the Defendants are both liable for breach of the common duty of care under the Occupiers Liability Ordinance (Cap. 314).

5. The Defendants, who are jointly represented, deny liability and contend that the accident was solely caused by the Plaintiff’s own negligence or his pre-existing injuries.  Alternatively, if there was any negligence on their part, they say the accident was contributed to by the Plaintiff’s own negligence.  On the assumption that liability is found against the Defendants, the Defendants challenge various aspects of the quantum of the Plaintiff’s claim.

The accident

6. The accident occurred when the Plaintiff was engaged in dismantling metal bars used to secure the containers on the vessel in question.

7. In order to secure the lowest tier of containers on board a vessel, the exposed end of a container is secured in place by the use of two sets of metal bars, which are secured diagonally across the end of the container and attached to brackets on the vessel concerned and to the corner fittings at the top of the container (or, if there is a second tier of containers, to the corner fittings on the bottom of the container on that tier).  Each set of metal bars consists of a longer upper bar which fits into the corner fitting of the container and is attached to a shorter lower bar which fits into a bracket on the deck of the vessel diagonally across from the top corner.  The second set of bars is similarly positioned but at the opposite corner fitting so that the two sets of bars form a cross and thereby secure the container on board the vessel.

8. The Plaintiff had removed the lower bar of one set of the metal bars when the longer upper bar of that set, which was supposedly still attached to the corner fitting of the container above, fell onto and injured his right foot.

9. The length of the bar in question was about 6 feet, with a diameter of about an inch, and it weighed approximately 9 to 15 pounds.  Photographs of the operation show that, when it is hanging vertically from the corner fitting of a container, the longer upper bar will hang about two feet from the bottom of the container and perhaps five feet from the deck of the vessel.

10. The Plaintiff says that, when the accident occurred, he was dismantling the metal bars on the containers one by one from the right to the left side of the vessel.  Whilst he was doing his job of dismantling the metal bars, something caused one of the longer upper bars to become detached from the container above it, to the lower corner fitting of which it was attached, and to fall onto his right foot.

11. Apart from the Plaintiff himself, there was apparently no witness as to how the accident occurred.

12. According to the Plaintiff’s witness statement, which was dated 20 March 2007, there were other workers unloading containers from another part of the vessel and one of the containers being unloaded hit the container whose metal bars he had just dismantled.  This caused the longer metal bar which was hanging from the corner fitting to fall, striking him on the right foot.  He also maintained that it was because the workers lifting the container were working in the dark that the lifted container collided with the container he was working on.

13. This case, namely that there was a collision between a lifted container and the container he was working on, was also advanced in further and better particulars served by the Plaintiff.

14. In his oral evidence, however, the Plaintiff disavowed this cause of the accident, saying that his witness statement was mistaken in this regard and that no container was being lifted or struck the container on which he was working at the time of the accident.

15. Instead, his oral evidence was that the cause of the accident was the combination of two factors.  The first was the fact that the hook at the end of the metal bar, by which it was fastened to the corner fitting of the container above, was worn and did not sit securely on that corner fitting when left to hang vertically.  It was the Plaintiff’s evidence that he examined the metal bar that struck him on the foot after the accident and noticed that the hook was worn.  The second factor was that the vessel was moving at the time of the operation.  The Plaintiff asserted that it was the combination of the motion of the vessel and the worn hook which led to the metal bar detaching itself from the corner fitting of the container, falling down and striking his right foot.

16. There was no explanation for the Plaintiff’s change of evidence as to the cause of the accident.  He explained his earlier statement on the basis that he was mistaken in his memory and said he only remembered the true cause of the accident two or three months before the trial. 

17. The Plaintiff reported the accident to Mr Lam Kam Mun, the 1^st Defendant’s foreman, after it happened.  He did not say he told Mr Lam about the worn hook, which one might have expected if he had specifically examined the hook and noticed it was worn.

18. In his evidence, Mr Lam said that he did not recall any unusual movement of the vessel at the time when the accident occurred.  The vessel was moored near the Western anchorage at the time it was being unloaded.  There is no evidence that it was raining or that the weather conditions were adverse.

19. In the face of the inconsistency between the Plaintiff’s two versions as to the cause of the accident, which are fundamentally different, I reject his evidence as to how the accident happened as being unreliable.  I am highly sceptical of his explanation for the change in his evidence as to the cause of the accident.  If the Plaintiff did inspect the hook at the end of the metal bar after it had fallen on his foot, there is no good reason why he would have only remembered very recently that this, combined with the motion of the vessel, was the reason for the metal bar falling.

20. However, the fact remains that the metal bar did apparently drop down and hit the Plaintiff’s right foot.  In order for this to have happened, it must have fallen.  It may have fallen as a result of the hook coming out of the corner fitting of the container to which it had been attached or it may have been dropped by the Plaintiff when he was removing it from the corner fitting.

21. Ms Tsang, counsel for the Defendant, submitted that the likely cause of the accident was because the Plaintiff lost his grip of the metal bar during the dismantling process.  The Plaintiff confirmed he was left-hand dominant and that part of his left thumb had been amputated as a result of a previous industrial accident.  He was wearing gloves at the time and this, submitted Ms Tsang, would have affected his grip.

22. On the other hand, I bear in mind the evidence of the Defendant’s medical expert, Dr Chun Siu Yeung, who, whilst noting that the Plaintiff’s left hand grip power would have been decreased because of the his previous injury, opined that the Plaintiff would still have been able to carry and lift the metal bar.

23. In the absence of a reliable account of how the bar came to fall onto the Plaintiff’s foot, I am left to draw inferences from the available evidence.  This has not been an easy task but the most probable causes of the accident seem to me to be either (a) the dislodgment of the bar by reason of an outside agency (e.g. the original pleaded case), or (b) a combination of the motion of the vessel and a faulty hook on the bar (the Plaintiff’s supposedly recent recollection), or (c) the Plaintiff’s dropping of the bar when removing it from the corner fitting.

24. I discount cause (a) since the Plaintiff himself disavowed this cause of the accident and there is no other evidence that any outside agency struck the container and caused the metal bar to fall from the corner fitting. 

25. Similarly, I discount cause (b) since I do not accept the Plaintiff’s explanation for this very late explanation contradicting his earlier pleaded case and witness statement.  I should add that I also discount cause (b) because the photographs of the operation adduced in evidence by the Defendant show that, immediately after it is unfastened from the lower metal bar, the longer upper metal bar will hang down vertically away from the workman until he steps towards it to grasp it in order to lift and release it from the container corner fitting.  That being the case, the possibility that the bar fell onto the Plaintiff’s foot due to the motion of the vessel and the worn hook would seem to be very remote.  It is very unlikely the Plaintiff’s foot would have been directly under the vertical bar for any period of time when he was not in fact already holding it, having stepped towards the hanging bar to lift and release it.

26. That leaves cause (c) as the most probable option as to the cause of this particular accident.  I therefore find that the bar fell onto the Plaintiff’s foot after he had lifted it to release it from the corner fitting to which it was attached and that he dropped it onto his own foot.  However, I am prepared to accept that the fact he was wearing gloves and, more importantly, that he had lost part of his left thumb in a previous accident did not materially affect his grip and that these facts did not contribute to the accident.

Liability

27. The Plaintiff’s case is that the 1^st Defendant, as his employer, is liable in negligence and for breach of his employment contract.  Various particulars are pleaded and his complaints can be summarised as (a) failure to provide a safe system of work, specifically to provide that the work of dismantling bars was done by a team of two workmen, (b) failure to provide adequate lighting while the work was being undertaken, and (c) failure to provide safety shoes for the Plaintiff to wear in order to prevent or minimise any injury.

28. It was not disputed that the 1^st Defendant owed a duty of care to the Plaintiff as its employee and that his contract of employment was subject to the usual implied terms.  Thus, the 1^st Defendant accepted it had a duty to take all reasonable precautions for the safety of the Plaintiff whilst he was engaged on the work, not to expose him to a risk of damage or injury of which the 1^st Defendant knew or ought to have known, to provide and maintain adequate and suitable plant and equipment to enable him to carry out the work in safety and to provide a safe and proper system of work.

29. As to the provision of a safe system of work, Mr Sammy Hui, counsel for the Plaintiff, submitted that it would have been safer if the cargo handlers deployed by the 1^st Defendant had been assigned to work in pairs so that one of them could hold the longer metal bar while the other was loosening the shorter one.  In this way, he submitted, the longer bar would not be left hanging from the corner fitting and so there would be no risk of it dropping onto the Plaintiff’s foot.

30. The flaw in this argument, in my judgment, is that the cause of the accident, as I have found it to be, was not because the longer bar was left hanging from the corner fitting but was rather because it was dropped by the Plaintiff himself after he had released it, or when he was in the process of releasing it, from the corner fitting.  That being the case, the system of work which Mr Hui urged should have been adopted as a safe system would not have prevented the accident.  If the Plaintiff had been the second worker in a team of two handling the longer bar, whilst his colleague attended to the shorter bar, the accident would still have happened.  Therefore, the alleged negligence and breach of duty was not causative of the accident.

31. Mr Hui relied on the case of Williams v. B.A.L.M. (N.Z.) Limited (No.3) [1951] NZLR 893 to support the proposition that it was the duty of an employer reasonably to anticipate that the men provided for a job will consider it expected of them to carry on as best they can with the number provided and that, if a man gets into difficulties, he will make an effort to get out of them himself before he calls on others who have other work to do.

32. In my opinion, that case does not assist the Plaintiff.  The issue in this case is not the number of workers deployed by the 1^st Defendant on the vessel but rather the question of whether the workmen should have been deployed to dismantle the metal bars in teams of two or on their own.  It was Mr Lam’s evidence for the 1^st Defendant that it was the usual trade practice for this type of work to be done by one man on his own.  The process of dismantling the metal bars is a continuous process: one bar is detached from the other in turn and only one bar is handled at a time.  I accept this evidence since it is entirely consistent with the Plaintiff’s own description of the work he was doing and how he went about it.

33. I therefore do not find that the 1^st Defendant was negligent or in breach of duty in failing to deploy two cargo handlers to work as a team in detaching the metal bars.

34. As to the provision of adequate lighting, Mr Hui submitted the evidence showed there was a lack of lighting on board the vessel.  I am not sure his submission was well-founded in this regard.  The Plaintiff himself in cross-examination accepted the light was adequate.  He then changed his evidence in re-examination to say it was inadequate, explaining his previous evidence as being a mistake.

35. I am not convinced he was mistaken in his original answer in cross-examination.  It is true the work was being done at night and therefore there would be a need for artificial illumination.  As to this, however, the evidence of Mr Lam was that there was sufficient lighting in the form of spot lights from the barges alongside each side of the vessel being unloaded as well as a light from the steering cabin of the vessel and in the aisles of the cargo area of the vessel.  I accept Mr Lam’s evidence in this regard.  It seems to me that the level of illumination, whilst not perfect, would have been adequate to enable a relatively uncomplicated task, like that on which the Plaintiff was engaged, to be performed safely.

36. In any event, the more important point is that the allegation of a lack of lighting does not bear any relation to the cause of the accident.  I cannot see how the alleged lack of lighting caused or contributed to the accident either on the Plaintiff’s theory of how it occurred or on the way in which I have found the accident to have happened.  It was not suggested by the Plaintiff that the lack of lighting made any difference to the mechanism by which he alleged the metal bar fell and, on my finding as to the cause of the accident, the lighting (or alleged lack of it) simply played no part.

37. Whilst the allegation was understandable in relation to the Plaintiff’s original case that the accident happened because other workers lifting another container could not see properly due to inadequate lighting and therefore caused the container they were lifting to strike the container the Plaintiff was working on, that case was disavowed by the Plaintiff.

38. I therefore do not find that the 1^st Defendant was negligent or in breach of duty in relation to the provision of adequate lighting.

39. As to the provision of safety shoes, the Plaintiff’s evidence was that he was wearing white plimsolls at the time of the accident.  He was not provided with safety shoes by the 1^st Defendant but said he would have worn them if they had been provided.

40. Mr Lam’s evidence was that it was a trade practice that workers would equip themselves with safety shoes.  He also said safety shoes, which had a heavy metal sole, were designed to protect the sole of the foot only.  Furthermore, his evidence was that workers would not wear them for container work of this type since this involves frequent climbing up and down the containers and heavy work boots would be too big to fit into the gaps between the containers which workmen had to insert their feet into when climbing.

41. Ms Tsang submitted that it was impractical for an employer to provide safety shoes for workers since they were personal items and must fit the individuals’ feet.  She also submitted that safety shoes primarily fulfilled anti-skid and anti-puncture functions and so would not have protected the dorsum of the foot, which was the area where the Plaintiff was struck by the falling metal bar.

42. I have reflected carefully on this allegation of negligence and breach of duty because it is the one area of complaint by the Plaintiff that could be said to have had a causative effect in relation to his injuries.  If the Plaintiff had been wearing a heavy pair of hobnail boots, it is possible that his foot would not have sustained injury, or would have sustained a lesser injury, from the falling metal bar.

43. Ultimately, however, in my judgment, I do not consider the allegation of negligence or breach of contract by reason of the failure to provide safety shoes to have been made out.  I have reached this conclusion for two principal reasons.

44. First and most importantly, I accept Mr Lam’s evidence that cargo handlers would not wear safety shoes since this would interfere with their ability to climb on the containers.  The Plaintiff’s own evidence as to why, despite the medical evidence to the contrary, he could not resume his pre-accident employment was that he could not because in order to do so he would need to climb up to eight layers of containers.  He also said in his evidence that to perform his work as a cargo handler he would have to insert his foot into the small gaps between the containers and that, because of the pain from his injury, he could no longer insert his foot.  The Plaintiff’s evidence therefore supports Mr Lam’s explanation as to why cargo handlers would not use safety shoes and I find that it is unlikely the Plaintiff would have worn heavy boots as this would have interfered with his work and thus been a hindrance to him.

45. Secondly, I am not convinced that a pair of hobnail boots would have offered much, if any, protection to the dorsum of the Plaintiff’s foot, which is where the metal bar struck him.  Whilst hobnail boots might have avoided injury to the toes, this was not where he was struck by the falling bar.

46. In the circumstances, I do not find the 1st Defendant to have been negligent or in breach of contract in the failure to provide safety shoes for the Plaintiff.

47. It was the Plaintiff’s case that the 2^nd Defendant was vicariously liable for the 1^st Defendant’s negligence or breach of contract.

48. The basis for this claim was that the 2^nd Defendant, as main contractor for the unloading operation, had a duty to supervise its servants or contractors in carrying out the work on board the vessel and to take reasonable care to ensure a safe system of work was employed, safe working conditions were in place and safety equipment provided.

49. Mr Hui submitted that the 2^nd Defendant had a personal duty to supervise the 1^st Defendant in carrying out the work on board the vessel.  He referred to the evidence of Mr Lam that the 2^nd Defendant’s agent was on board the vessel processing the documentation in relation to its cargo at the time of the accident.  He also referred to the fact that the accident report and Form 2 in relation to the accident were completed and signed by representatives of the 2^nd Defendant.

50. Since I have found that the 1^st Defendant was not negligent or in breach of contract, there is no liability for which the 2^nd Defendant could be vicariously liable.

51. As regards the Occupiers Liability Ordinance, the Plaintiff’s case was based on the contention that the metal bar formed part of the equipment belonging to the vessel and, since it was faulty by reason of its hook being worn out, the risk or danger attributable to using that equipment was within the ambit of the Defendants’ liability as occupiers of the vessel.

52. The short answer to this contention is that I have not found the cause of the accident to have been due to the hook of the metal bar being worn out.  The Plaintiff’s case under the Occupiers Liability Ordinance is therefore founded on a false premise and cannot succeed.

53. In the circumstances, I find against the Plaintiff on the issue of liability.

Quantum

54. Having found against the Plaintiff on liability, his claim stands to be dismissed and it is strictly unnecessary to deal with the quantum of the claim.  However, in case I am wrong in any respect as to liability, I shall consider the issues arising in respect of quantum.

The Plaintiff’s treatment

55. After the accident, the Plaintiff was able to travel on his own to the A&E Department of Kwong Wah Hospital in the early hours of 16 June 2004.  He was diagnosed as having a contusion and there was tenderness over the dorsum of his right foot.  An x-ray showed no fracture of the foot.  He was treated and discharged with sick leave.

56. He later complained of persistent right foot pain and made several visits to the A&E Department of Princess Margaret Hospital, Yan Chai Hospital and Kwong Wah Hospital.  He was seen at the Out-Patient Department of Lady Trench Clinic and referred to the Orthopaedic Department of the Yan Chai Hospital for the treatment of residual right foot pain on 25 and 29 October 2004.  On examination, his gait was found to be normal.  There was mild tenderness on his right foot with prominent right toes.  There was no swelling or inflammation.

57. The Plaintiff consulted a private doctor, Dr Frank Yu, on 21 June 2004 and was diagnosed as having a severe contusion on his right foot.  When the haematoma subsided, he developed painful callous nodules over the dorsum of his right foot causing pain on walking and bearing weight.  Further examination by Dr Yu on 3 September 2004 showed limited flexion of his right toes, right ankle and tender nodules on the dorsum aspect of his right foot.  Weight bearing on his right foot was painful and weak and he walked with a limp.

58. The Plaintiff attended a further clinical test by Dr Yu on 10 May 2005 when it was found that the planta flexion and extension of his right foot (at the toe, foot and ankle level) had a loss of 30% of the normal range and power due to the post-traumatic injury to the tendons, ligaments and joints of his right foot, in interrupting the redistribution of the grip function, movement and weight bearing.

The expert medical evidence

59. The Plaintiff was examined by Dr Danny Tsoi Chi Wah (on the appointment of the Plaintiff) on 3 August 2005 and by Dr Chun Siu Yeung (on the appointment of the Defendants) on 14 April 2007.

60. He was diagnosed by Dr Tsoi as likely to be suffering from a very severe contusion injury over the dorsum of his right foot.  The described mode of the injury was consistent with a diagnosis of severe soft tissue contusion.  The diffuse tenderness with radiation to the ankle and calf suggested that some cutaneous nerve fibres were also injured.  On physical examination, it was found that the Plaintiff’s right foot was in a satisfactory condition and the range of motion in the right ankle and toes had all returned to normal.  The residual pain and subjective weakness was probably due to injury of the cutaneous nerve fibre giving rise to persistent pain.  Dr Tsoi considered that the Plaintiff’s right foot injury would not preclude him from resuming his pre-injury job but noted that further reduction in capacity was anticipated and that he might have discomfort when performing duties involving jumping or standing on an uneven surface.  He considered that sick leave of up to one year was acceptable.

61. Dr Chun diagnosed the Plaintiff as having a soft tissue contusion of the right foot.  Although at his examination the Plaintiff complained of continuous non-stop pain in his right foot of moderate intensity, there were no signs of Complex Regional Pain Syndrome I (CRPS I), cancer or infection.  There was no wasting of the right lower limb muscles to support his claim of continuous pain.  There was no clinical evidence to suggest less weight bearing on his right foot because of pain.  The toe and ankle motions were normal and symmetrical, as was the x-ray appearance.  Dr Chun considered the Plaintiff was exaggerating his symptoms.

62. Dr Chun thought the Plaintiff might have mild residual pain on very prolonged walking or very heavy and frequent lifting.  Since his ankle and toe motions were normal, there should be no inability to climb scaffolding or a ladder.  Dr Chun opined that he should be able to return to work as a cargo handler with very mild symptoms and inconvenience only.  He assessed the Plaintiff to have no more than 1% impairment of the whole person by reason of the possible mild residual pain associated with the contusion.  He assessed the loss of earning capacity at 1% for the purposes of employees’ compensation only.  He opined that reasonable sick leave should be given to the end of October 2004 since the soft tissue contusion should have healed in 3 months or less.

63. Dr Tsoi prepared a supplementary medical report dated 26 June 2007 in which he commented on Dr Chun’s medical report.  Dr Tsoi concurred with Dr Chun that the Plaintiff’s additional complaints of pain over both ankles and at the tendoachilles were unrelated to the accident which is the subject of this action.  Dr Tsoi agreed with Dr Chun’s diagnosis of soft tissue contusion injury of the Plaintiff’s right forefoot.  Dr Tsoi maintained his view that the contusion might have caused injury to the cutaneous sensory nerve branch thus giving rise to persistent forefoot pain.  However, he agreed with Dr Chun that more a serious injury or complication such as a complex regional pain syndrome injury was unlikely.  He believed that the actual degree of pain was less severe than the Plaintiff described and that there was some element of symptom expansion.  Dr Tsoi concurred in Dr Chun’s view that the Plaintiff might have mild residual pain on prolonged walking or very heavy and frequent lifting.  Therefore, the Plaintiff would have a reduction in capacity in resuming his pre-injury job: he could climb scaffolding but more rest was recommended between duties.  Dr Tsoi did not wish to dispute Dr Chun’s assessment of permanent impairment and loss of earning capacity in percentage terms.

Findings as to the Plaintiff’s injuries sustained as a result of the accident

64. In the light of the expert medical evidence, there is no dispute that the Plaintiff sustained a soft tissue contusion injury of his right forefoot.  The only issue is as to the extent of this injury.

65. As to this it was common ground between the experts that the Plaintiff’s right ankle and toe motions were normal.  The injury had reached a stage of maximal medical improvement and no further treatment was required.

66. The expert evidence was that the contusion injury might have caused an injury to the cutaneous sensory nerve branch giving rise to the Plaintiff’s claims of persistent forefoot pain.  However, it was common ground between the expert medical witnesses that the Plaintiff has exaggerated the actual degree of pain experienced by him.

67. Evidence was adduced by the Defendants in the form of an investigative report and a video of the Plaintiff.  The Plaintiff was observed to be able to walk quickly and normally, to be able to endure prolonged walking for about 60 minutes and to walk up and down stairs without any evident difficulty in either of his lower limbs, to be able to squat down and rise up easily without any support, and to be able to endure prolonged standing and walking for about two hours whilst working without any evident difficulty in either of his lower limbs.  I see no reason not to take the evidence of the investigators at face value and as reliable since it is consistent with and reflects the opinion of both medical experts that the Plaintiff is exaggerating his symptoms.  Furthermore, the investigators’ evidence was supported by the video evidence.

68. In addition, the Defendants drew attention, in their Answer to the Revised Statement of Damages, to a number of points in the clinical notes that revealed the triviality of the Plaintiff’s foot injury.  These showed that the examinations of the Plaintiff’s right foot by October 2004 at the latest were unremarkable and showed nothing abnormal.  Arrangements were made for the Plaintiff to attend for an x-ray of his right foot and blood tests in October 2004 at the Yan Chai Hospital but the Plaintiff did not attend for these investigations.

69. I accordingly find that the Plaintiff sustained a soft tissue contusion injury to his right forefoot which has now healed.  I find that he has mild residual pain on very prolonged walking or very heavy and frequent lifting.  However, subject to this mild residual pain, his injuries had healed by the end of October 2004.

Pain, suffering and loss of amenities

70. The Plaintiff claimed $300,000 under this head, Mr Hui contending that the Plaintiff’s injuries fell just short of the “serious injury” category identified in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

71. Mr Hui relied on three cases to justify this quantification, namely Chan Kwai-sum v. Ultimate Engineering Limited, HCPI 309/2003, 11.10.04, Lau Pai Yam Bottomley v. Tai Tung Coffee Co. Ltd., HCPI 745/2002, 29.9.03, and To Ying-wa v. Cargo-Land (Warehouse) Development Ltd., HCPI 441/2000, 22.1.01.

72. However, Ms Tsang’s reply to these cases was that they were each cases involving much more serious injuries to the foot.  In the first case, the injury involved a right foot drop, decreased power of the right ankle dorsiflexion at grade 3/5 and decreased sensation over the medial side of the right foot.  The plaintiff was suspected to have chronic compartment syndrome and was assessed to have a 5% permanent impairment.  In the second case, the plaintiff suffered fractures to the 2^nd and 3^rd metatarsal bones, damage to the corresponding tarso-metatarsal joints, and a deformed based of the 3rd metatarsal due to mal-union of the fracture.  The plaintiff consequently had severe pain leading to adjustment disorder.  In the third case, the plaintiff suffered fractures to the 4th and 5th metacarpals of the right foot for which he underwent a close reduction and K-wire fixation.

73. Ms Tsang submitted the proper award under this head should be $30,000.  She submitted, by reference to a number of authorities, that the range of awards was much lower than the Plaintiff was claiming:  the award for a sprained ankle was $80,000; for a fracture without an operation, the award was $150,000; and for fractures requiring operations, the awards ranged from $180,000 to $200,000.

74. She submitted that in the present case the Plaintiff has only suffered a soft tissue contusion injury for which 4 months sick leave was considered appropriate by Dr Chun.  She pointed out the Plaintiff has clearly exaggerated his symptoms as observed by both medical experts.

75. I agree with Ms Tsang that the claim for $300,000 advanced by the Plaintiff under this head is excessive.  The cases relied on by Mr Hui involved more serious injuries.  On the other hand, I regard $30,000 as being too low.  In my judgment, recognising that none of the various cases cited in respect of this head involve identical injuries to those sustained by the Plaintiff here, I would regard the case of Wong Wai Hung v. Loo Kin & Anor., DCPI 643/2006, 30.7.07 as being a useful guide in the present case.  In that case, the plaintiff suffered a right ankle injury but no fracture or tendon or ligament damage.  His right ankle was swollen and he was unable to perform full squatting, heel walking and tiptoe walking because of right ankle pain.  He was assessed to have a 1.5% impairment to the whole person.  $80,000 was awarded under this head.

76. I would therefore have awarded the Plaintiff the figure of $80,000 as damages for pain, suffering and loss of amenity.

Loss of earnings (pre-trial)

77. The Plaintiff claimed a total of $380,271.89 under this head.  The claim was premised on the Plaintiff not being able to resume any work until 30 June 2005 and only being able to resume work as a cleaner at a much reduced salary from 1 July 2005.

78. However, although he had worked as a cargo handler for about 10 years between 1985 and 1995, the Plaintiff had only recommenced work in that capacity about 7 to 8 days before the accident.  Prior to that his usual occupation had been as a casual labourer on construction sites.  He had been living on public assistance for about a year prior to the accident and was looking after his younger son.  His employment at the time of the accident was on a probationary basis.

79. Mr Lam gave evidence that the Plaintiff’s employment was casual.  The 1^st Defendant had a batch of regular casual workers and the Plaintiff was only employed on the date of the accident because there was a particularly heavy workload.  He added that he did not know of the Plaintiff’s previous hand injury and, had he known about it, he would not have selected the Plaintiff for employment.

80. The Plaintiff suggested a figure of $11,077.52 to represent his pre-trial median loss of earnings.  Reliance was placed on the Form 2 which stated the Plaintiff earned an average of $10,000 per month.  However, Mr Lam’s evidence was that his workers would work an average of 20 jobs or shifts per month earning between $8,000 and $9,000.  It was the Defendant’s case that the figure on the Form 2 must, of necessity, be an approximation.

81. Ms Tsang submitted that, due to the Plaintiff’s previous injuries and his long absence from cargo handling work and construction sites, the Plaintiff’s prospects of full employment as a cargo handler were unrealistic.  More realistically, he might expect to be employed about 50% of the time that the 1^st Defendant’s more regular cargo handlers would be employed.  Therefore, he would earn the going rate of $400 per job or shift for 10 jobs or shifts per month, i.e. $4,000.

82. Since Dr Chun opined that a reasonable period of sick leave was 4 months, Ms Tsang submitted the pre-trial loss of earnings, including the MPF element, should be $16,800 (being $4,000 x 4 x 1.05).

83. In view of the uncertainties surrounding the ability of the Plaintiff to obtain regular employment as a cargo handler, I do not consider the Plaintiff’s figures to be realistic.  I would have proposed to use the figure of $5,000 as the monthly earnings, since this is the amount the Plaintiff testified as being his average monthly earnings prior to the accident.  It is also 50% of the amount stated in the Form 2 and 50% of a slightly higher figure than the upper end of the scale of earnings for cargo handlers employed by the 1^st Defendant as indicated by Mr Lam.

84. In my view, Dr Chun’s evidence as to the appropriate sick leave period is to be preferred, so I would have applied the loss of earnings for a period of 4 months.

85. This would have produced a figure for pre-trial loss of earnings of $21,000 ($5,000 x 4 x 1.05).

Future loss of earnings

86. The Plaintiff also claimed future loss of earnings applying a multiplier of 10 in respect of the difference between his pre- and post-accident employments.  The total figure claimed was $975,877.56.

87. Since I have accepted Dr Chun’s evidence regarding the appropriate sick leave period and both experts consider the Plaintiff can return to his pre-accident employment as a cargo handler, I would not have made any award under this head.

Loss of earning capacity

88. The Plaintiff claimed $26,460 under this head.

89. Ms Tsang submitted that, in view of the minor injuries and the experts’ opinions as to his working capacity, this claim should be dismissed.  It was unlikely that the Plaintiff would be disadvantaged in the labour market in view of the good prognosis in respect of his injury.  Any disadvantage he might face would be the result of his previous injuries.

90. I agree with Ms Tsang.  I would not have made any award under this head.

Special damages

91. The Plaintiff claimed $41,790.20 as medical expenses, $4,963.40 as travelling expenses, $34,333.20 for tonic food and $1,054.60 for photocopying and stamps.

92. As for the medical expenses, there is no doubt that the Plaintiff has exaggerated his symptoms and, consequently, the extent to which he required medical treatment.  The schedule shows an extraordinary frequency of visits to his private doctor, Dr Frank Yu, namely 18 visits in September 2004 and 14 visits in October 2004.  He also visited a bonesetter 17 times in September 2005 and 5 times in October 2005.  Plainly, if these visits took place, they were excessive.

93. The schedule reveals that the Plaintiff visited private and government doctors and bonesetters on 180 occasions in the period from 16 June 2004 to 4 January 2007.  Part of this period is after the Plaintiff resumed full time work as a cleaner on 1 October 2006.  The Plaintiff’s evidence was that he received no specific treatment other than receiving injections and painkillers.  I think there is some force in Ms Tsang’s submission that the main purpose of the Plaintiff’s attendances was to receive sick leave certificates for the purpose of claiming sick pay from his employer.

94. The schedule of these expenses also shows a claim for medical expenses in Macau of $4,300.  There is no justification for this expense since there is no evidence that the Plaintiff could not receive adequate medical treatment for his injury in Hong Kong. 

95. Since Dr Tsoi, the Plaintiff’s expert, opined that the Plaintiff’s injury had recovered satisfactorily and that no further treatment was required when he examined him on 3 August 2005, I would not have seen any reason to allow any of the medical expenses after that date.

96. Ms Tsang conceded a sum of $10,900 under this head for medical expenses and, in the absence of any better way to estimate an appropriate deduction from the Plaintiff’s schedule, I agree with her that this sum would have been appropriate in the circumstances.

97. As for the travelling expenses, the sum of $4,963.40 is excessive.  Part of that sum is a claim for $1,904 for travelling to Macau, for which there is no justification.  A deduction is warranted to reflect the excessive and unreasonable number of attendances.  Ms Tsang conceded the sum of $500 under this head.  I would perhaps have increased this to $1,000 and awarded that sum under this head.

98. The claim for photocopying and stamps has no place in a schedule of special damages for this type of injury.  If the expenses had been reasonably incurred in pursuit of the Plaintiff’s claims for compensation arising from his injury they would more appropriately form part of his claim for costs.  In any event, there was simply no evidence to support the claim.

99. As for the Plaintiff’s claim of $34,333.20 for tonic food, there were only six supporting receipts totalling $1,618.  The schedule of these expenses shows the first expense under this head was incurred only on 12 October 2005, some 16 months after the accident and at a time when his sick leave had already expired.

100. Ms Tsang submitted, in reliance on the Full Court’s judgment in Mui Ling Kwan v. Wong Yin Wah [1973] HKLR 465 at 472, that the sum claimed should be disallowed and conceded $500 under this head.

101. I agree with Ms Tsang that there is no justification for the full amount of this claim and would have made an award of the sum of $500 conceded by the Defendants.

102. The total award of special damages would therefore have been $12,400.

Summary of awards

103. Had I found in the Plaintiff’s favour on liability, the quantum of damages I would have awarded to the Plaintiff would therefore have been:-

(1)	For pain suffering and loss of amenities	$80,000
(2)	Interest @2% p.a. for 18.5 months	$2,467
(3)	Pre-trial loss of earnings	$21,000
(4)	Interest @4.7% p.a. for 45 months	$3,701
(5)	Future loss of earnings	Nil
(6)	Loss of earning capacity	Nil
(7)	Special damages	$12,400
(8)	Interest @4.7% for 45 months	$2,185.50
	Total:	$121,753.50

104. Against this sum, the Plaintiff would have to give credit for the sum of $156,810 received by him as employees’ compensation.

Interest

105. Interest at 2% per annum would apply to the general damages from the date of the writ to the date of judgment and thereafter at the judgment rate.

106. As for the damages for pre-trial loss of earnings (excluding the MPF element) and other special damages, interest would be awarded on these damages at half the judgment rate from the date of the accident until the date of judgment.

Costs

107. Since I have determined the issue of liability against the Plaintiff, the Plaintiff’s action stands to be dismissed with costs to the Defendants.  The Plaintiff’s own costs will be taxed in accordance with the legal aid regulations.

108. I have calculated the approximate figures of interest on the damages I would have assessed in order to determine the outcome of the action, had I found in the Plaintiff’s favour on liability.  As will be apparent, the Plaintiff’s action would have been dismissed in any event, since he would have failed to recover more than the amount he has already received by way of employees’ compensation.