LEUNG BON KAU v. LAU KONG

HCPI 1455/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1455 OF 2000

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J U D G M E N T

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Introduction

1. The Plaintiff claims against the Defendant for loss and damages as a result of an accident on 11 March 1988. Although the Plaintiff was granted Legal Aid during the early parts of these proceedings, he has been acting in person for quite a number of years. By an affirmation filed on 13 February 2003, the Plaintiff claims a total of $53 Million as damages.

2. It is not in dispute that at the material time the Plaintiff was working as a casual general labourer for the Defendant and that an accident did occur on 11 March 1988. The Defendant denies that he was liable for loss and damages suffered. Further, the Defendant also disputes the extent of disability and the amount to be awarded should the Plaintiff succeed in proving the issue of liability.

3. The Plaintiff also claimed Employees' Compensation against the Defendant under E.C.C. No. 61 of 1990. H.H. Judge Sharwood awarded the sum of $240,640 with interest to the Plaintiff. As the award together with interest was less than the payment into court (i.e. $270,000) made by the Defendant, the learned judge ruled that the Defendant was entitled to costs from the time of such payment. By an Allocatur dated 24 August 1993 the Defendant's profit costs and disbursement to be paid by the Plaintiff was allowed at $153,763.20. After deduction of agreed costs to be borne by the Defendant and partial payment, the Defendant alleges that the sum due from the Plaintiff amounts to $117,286.20.

4. By an Amended Defence and Counterclaim filed on 17 April 2001 the Defendant claims a set-off in the sum of $267,430.14 and counterclaims against the Plaintiff the sum of $117,286 with interest. It should be noted that the award together with interest amount to $267,486.40.

Liability

5. There is no dispute that at the material time the Plaintiff was working on a winch boat. According to the Plaintiff, while working on the boat, he sustained injuries to his left knee when his left leg fell through a gap on the winch boat.

6. He testified that he was working alone on a winch boat at the time. He referred to the photographs showing winch boats (D69) and said that the boat he was on was similar to those shown. He, however, testified that the particular winch boat he was on did not have three planks running along the length of the boat as shown on the lower left photograph. He said there was only one single plank along its length. He drew a couple of crosses on that photograph to indicate the positions of his footing immediately before the accident. The Plaintiff also referred to two sketches he drew (B18 and B19), with the sketch (B18) showing only a single plank (which the Plaintiff referred to as 'the middle pank' (sic)) to illustrate his points.

7. Basically, what he said was that he was standing with his legs about 3 1/2 feet apart; his right foot was on the single wooden plank while his left foot was on the side ledge when he lost his footing and his left leg fell into the gap between his two feet. On this sketch (B18) the Plaintiff has also drawn diagrams showing how the accident occurred.

8. He claimed that the Defendant was liable for the accident in failing to provide a safe working platform. He referred to sketch (B19) to demonstrate what safety requirement was needed. The Plaintiff also relied on a letter addressed to him by the Marine Department dated 27 May 1993 (D130). Mr K C Lee, writing on behalf of the Director of Marine, referred to 'several photographs of some wooden sampans' which the Plaintiff had claimed to be 'of a type similar to the work-boat where the accident had happened' and opined 'we believe that the gap between each deck board supporting beam and the shell of these sampans should be suitably covered for the sake of safety.' The Plaintiff acknowledged that Mr K C Lee only made reference to photographs sent but he insisted that copies of the two sketches were sent to the Marine Department as well.

9. On the face of it, the Plaintiff, when giving evidence as to how the accident occurred, did appear to give three different versions:

(1)	He was operating the winch when the gentle waves caused the logs to gently hit and rocked the boat;
(2)	He was working with a pole at the time (as illustrated by diagrams on B18) when the boat was rocked by the waves and crashed with the logs; and
(3)	He was neither operating the winch nor working with the pole when the accident occurred.

10. After considering his evidence carefully and bearing in mind the accident occurred back in 1988, I am satisfied that what the Plaintiff was saying is that he first had to operate the winch, he then had to use the pole with a hook. Immediately before the accident, he was no longer holding the pole. There were no high waves but inevitably the movement of the waves rocked the boat. The movement of the waves combined with the impact of the logs hitting the boat caused the boat to rock gently. Because of the way he was standing he lost balance and his left leg became trapped and he sustained injuries to his left knee.

11. Was the Plaintiff standing on a winch boat with only a single middle wooden plank? Of all the photographs adduced I do not see any winch boat with one continuous fixed middle plank as drawn by the Plaintiff in sketch (B18). However, having looked at different photographs showing winch boats, I do detect a difference among them. It appears to me that the winch was secured on a fixed wooden plank on each and every boat. However, some of the wooden planks upon which the winch was secured were longer than others. (Those with the longer plank are shown on the top and the left photographs on "B17" and on the right photograph on "D70". Those with the shorter planks are shown on the right photograph on "B17"; the photograph on "D32"; the lower left photograph on "D69"; and the lower left photograph on "D70".) For those boats with a longer plank an operator would have to stand on the same single wooden plank to operate the winch, whereas for those with a shorter plank the operator would have to stand on planks different and distinct from the one on which the winch was secured. The number of such planks varied from 3 (as shown on the lower left photograph on both "D69" and "D70")to 5 (as shown on the photograph on "D32").

12. One can also see that for those with the longer plank, the width of such plank was almost the same as the width of the winch. For those with a shorter plank and 3 additional planks, the width of the three planks were not that much wider than that of the winch either. Only the one with the 5 additional planks (D32) has a width considerably wider than that of the winch.

13. I am satisfied that the Plaintiff was then working on a winch boat with the longer plank, thus his evidence that it was a boat with a single middle plank.

14. The Plaintiff's evidence that he just worked on a winch boat provided was not challenged. All winch boats show gaps on either side of the winch. I understand that has something to do with the wire when operating the winch. However, the part on which an operator has to stand, that is immediately adjacent to the winch, does not need to have such a wide gap (as shown on D32). In fact there appears to be no reason why those gaps could not be covered up completely, or at least be sufficiently covered to reduce the chance of a worker falling in.

15. On the evidence before me, I find that that at the material time the Plaintiff was required to work on a winch boat with a longer plank, the width of which was about the same as the winch itself. I find that the Defendant, as his employer, failed to take reasonable care to ensure his safety. I do not think the Defendant need to provide a safe platform as illustrated by the Plaintiff in his sketch (B19). However, I am satisfied that the Defendant should have ensured that the gaps adjacent to the winch be covered to a reasonable degree by the placement of extra planks. The Plaintiff was required, due to the narrowness of the middle plank, to adopt the posture he described to work.

16. Is the Plaintiff also partially liable? There is no evidence to challenge the Plaintiff's assertion that he was not the one who either placed or removed planks from the winch boat. He was a casual general labourer who would turn up for work when required. He was not in any supervising position and he merely worked on the boat provided. I am satisfied that he could not make a demand as to which winch boat to be used. The evidence also shows that the sea was calm, the Plaintiff was the one who operated the winch and hauled the logs alongside the winch boat. It would be inevitable for the logs to hit the boat due to movement of the waves, no matter how gentle. Of course if there were high waves the impact could have been more severe. In this case the Plaintiff has stressed time and again that the impact was not forceful and the rocking of the boat was gentle. Had the gaps been sufficiently covered any such gentle rocking would not have resulted in the Plaintiff losing his footing and having his foot trapped. Having considered the Plaintiff's position and all the circumstances of the accident, I am satisfied that the Defendant is wholly liable for the accident and the resultant loss and damages.

Plaintiff's injuries and treatment

Knee injuries

17. I will now turn to the injuries sustained by the Plaintiff. According to a medical report prepared by Dr Boris Fung of the Department of Orthopaedic Surgery of the Queen Mary Hospital dated 13 October 1989, the posterior cruciate ligament, lateral ligaments complex and attenuated anterior cruciate ligament of the left knee were torn. These were all repaired. The Plaintiff was re-admitted to the hospital on a number of occasions due to limitation of knee movements. In October 1988 the range of movement was 20 - 60 degrees and the Plaintiff was able to walk with a walking stick. It was finally decided that further operation would not assist in improving the range of movement.

18. The Plaintiff when giving evidence testified that he was not able to walk even one to two steps without the assistance of a walking stick unless he was holding onto something. He certainly acted that way in Court whenever he has to move from one part of the court room to another! He said that he needed to take painkillers twice a day and he could not walk for long as the bones 'grind' against each other, causing him pain and discomfort. The disability on his left knee also disturbed his sleep. He said he had what was known as 'spiral leg' in that when he tried to walk forward the leg would automatically bounce backward; and when he bend his leg it would bounce forward. The demonstration in court does not make anyone wiser as to what he meant by having a 'spiral leg'!

19. The Plaintiff was filmed on two occasions by employees of Take Result Limited, i.e. Mr Choi (DW1) and Mr Wong (DW2) - one in March 2001 and the other August 2002. The Plaintiff was clearly unaware of the secret filming. Far from what the Plaintiff testified in court, he was seen walking fairly freely with the aid of the walking stick, placing it on the ground for support for every other step. He was actually walking quite briskly at times and he was seen running a few steps towards the ferry pier! He was also able to walk without the stick for about 14 steps on one occasion when filmed.

20. I have also read the various reports on the Plaintiff's knee condition by Dr David Lee and Dr David H F Cheng. I am satisfied that the Plaintiff did walk with a limp and did need a walking stick though he has grossly exaggerated his disability. He could manage to walk without the stick but only very briefly. I accept that he still suffers from residual pain and stiffness of the knee with post-traumatic degeneration.

Diabetes Mellitus

21. The Plaintiff complains that as a result of the accident he developed diabetes mellitus causing serious health problems, particularly to his eyes. There is however no medical evidence to support such claim. The medical report shows that he started to have diabetes in 1996, about 8 years after the accident. Dr David Cheng is of the view that diabetes mellitus is a metabolic disease unrelated to the knee injury. I find that the Plaintiff fails to prove that the diabetes mellitus he suffers from is resultant from the accident back in 1988.

Psychiatric/psychological illness

22. The Plaintiff also complains of suffering from psychiatric or psychological illness as a result of the accident. In fact, the Plaintiff was suffering from personality disorder prior to the accident as shown in a medical report by Dr Dunn of the Hong Kong Psychiatric Centre. Dr Singer, unaware of such pre-existing disorder, originally assessed the Plaintiff to have suffered severe depression and severe personality disorder as a result of the accident. After being shown Dr Dunn's report Dr Singer revised his opinion and assessed the Plaintiff's condition to that of moderate depression and moderate personality disorder.

23. The Defendant's psychiatric expert, Dr Sylvia Chen, was the Senior Medical Officer in charge of the Hong Kong Psychiatric Centre from August 1980 to 1984. She knew the history of the Plaintiff's case. Dr Chen concluded that the Plaintiff was not suffering from any depression and his personality disorder was very much the same before and after the accident. She assessed the Plaintiff to be suffering from 5% permanent impairment for the cosmetic impairment psychologically and another 5% for the mild depressive reaction to the physical disabilities as directly caused by the accident.

24. It would appear that the Plaintiff did not disclose to Dr Singer regarding his pre-existing personality disorder when he first consulted Dr Singer. Nevertheless, after considering his opinion and that of Dr Sylvia Chen, who was in a better position to make an assessment - having known the history of the Plaintiff's case - I am of the view that Dr Chen's view is to be preferred.

Pain, Suffering & Loss of Amenities

25. I am of the view that the injuries and disabilities suffered by the Plaintiff put him at the lower end of the serious injury category as propounded in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. Mr Daniel Chan, counsel for the Defendant, submitted that I should consider awarding the sum in line with the level in 1994 as there was gross delay on the part of the Plaintiff to bring the case to trial. He submitted that had the Plaintiff acted promptly the case would have been heard in or about 1994. The level of award then was lower as the case of Chan Pui Ki v Leung On and Another [1996] 2HKLR 401 had not been decided. He submitted the appropriate award to be $250,000.

26. The Plaintiff admitted he has deliberately not brought the case to trial as he wanted to wait until he knew more about 'how bad' his situation would be. He wanted to have his diabetic problems and resultant medical care brought to the court's notice. I have already found that the Plaintiff fails to prove that his diabetes mellitus was as a result of the accident.

27. The accident occurred in 1988 and the Writ was issued in 1991. The Employees' Compensation claim concluded in 1993. Had the Plaintiff not chosen to delay the matter but prosecuted his case diligently, I am satisfied that the trial would have taken place by the end of 1994. In any event, the trial would have concluded before mid-July 1996, and the appropriate award then would have been $250,000: see Attorney General v Chun Yat Nam [1995] 1 HKC 218. I agree with Mr Chan's submission and award $250,000 under this heading.

Pre-trial loss of earnings

28. Although in the Writ the Plaintiff claimed loss of earning at the rate of $8060 per month, I accept Mr Chan's submission that the question of monthly income was fully tried before H H Judge Sharwood who made a finding that such monthly income was $3,760. On the principle of issue estoppel the Plaintiff is estopped from re-litigating this matter. I therefore adopt the same figure of $3,760 for the calculation.

29. The plaintiff was granted sick leave for a period of two years. Dr David Cheng was of the opinion that sick leave for 2 1/2 years was reasonable. The Plaintiff is entitled to full loss of earnings for a period of 21/2 years from 11 March 1988 to 10 September 1990. Taking the notional increase of earnings at 13% per annum, the loss of earnings for this period is:

($3,760 + $3760 x 1.13 x 1.13) ÷ 2 x 30 months = $128,415

30. After this period of 21/2 years the Plaintiff should be expected to take up suitable employment to mitigate his loss. All the medical experts (both for the Plaintiff and the Defendant) were of the opinion that the Plaintiff should be suitable to do some sedentary jobs, such as that of a watchman. I agree with such an opinion.

31. On the evidence before me, the Defendant ceased business on 1 April 1994. Assuming that the Plaintiff would have continued his employment with the Defendant but for the accident, his median earnings for the period from 11 September 1990 to 31 March 1994 (42 2/3 months) would be:

($3,760 x 1.13² + $3,760 x 1.13⁶) ÷ 2 = $6,315.

32. The median earnings of a watchman for the same period, according to statistics provided should be:

($5,001 + $7115) ÷ 2 = $6058.

33. As the Plaintiff should be able to take up such sedentary job, his loss of earnings for the 42 2/3 months amount to:

($6,315 - $6,058) x 42 2/3 months = $10,965.

34. Since the Defendant ceased business on 1 April 1994 the Plaintiff's employment would have ended then and the Plaintiff would have to look for alternative employment even without the accident. I accept Mr Chan's submission that the closest comparable that could be found in the statistics is that of "miscellaneous non-production worker" and the Plaintiff could do such jobs earning similar income but for the accident. The statistics show the median monthly earnings of such workers for the period from March 1994 to March 2003 to be $6,983. The median monthly earnings of a watchman for the same period is $7,161.25. That being the case the Plaintiff is taken to have suffered no loss of earnings from 1.4.1994 to date of trial. The pre-trial loss of earning is therefore

$128,415 + $10,965 = $139,380.

Future loss of earnings

35. The statistics show that as at March 2003 the median monthly earnings of a miscellaneous non-production worker was $7,914 and that of a watchman $7,207.50. The Plaintiff is almost 53 years of age. Having considered the authorities submitted by Mr Chan I am of the view that a multiplier of 7 is appropriate. The future loss of earnings is therefore:

($7,914- $7,207.50) x 12 x 7 = $59,346.

Loss of earning capacity

36. Though the Plaintiff ought to be able to take up the job of a watchman, his disability will put him in a disadvantageous position hence a loss of earning capacity award would be appropriate: Poon Man Chun v Lee Sau Yee, HCA No. A2294 of 1992, (Kaplan J; 19 April 1994) [1994] 291. I am also of the view that a sum equivalent to 12 months earnings as a watchman is appropriate:

$7,207.50 x 12 = $86,490.

Medical expenses

37. The Plaintiff did not pay any medical expenses up to 1993 as demonstrated by his evidence during the ECC hearing. He testified that as he was on public assistance medical fees were waived. There is no receipt to show that he had paid any medical fees. No award is made under this heading.

Travelling expenses

38. Though no receipts were adduced it would be reasonable to allow such expenses when the Plaintiff attended treatment. I think a sum of $10,000 reasonable.

Tonic food

39. There is no evidence or receipt to show that the Plaintiff had taken any tonic food, no award is allowed.

Future medical expenses

40. Dr David Cheng was of the view that there was a less than 50% chance of the Plaintiff having to undergo operation for the fusion of the knee joint. Dr Sylvia Chen was of the view that any further offer of psychiatric treatment would not be beneficial or necessary for the Plaintiff, no award will be made under this heading.

Interest

41. There is gross deliberate delay on the part of the Plaintiff in bringing the case to trial. It was indeed the Defendant who had taken steps to set this case down for trial. I rule that the Plaintiff should not be entitled to have interest for the entire 15 years period. I am prepared to allow him interest up to end of 1994. Interest at 2% per annum on the award of PSLA from date of Writ (i.e. 19 February 1991) to 31 December 1994, and at half the judgment rate (4%) on the awards for pre-trial loss of earnings and special damages from the date of accident (11 March 1988) to 31 December 1994.

Credit for ECC Award

42. From the net amount of damages the amount of Employees' Compensation in the sum of $267,486.40 has to be deducted.

Defendant's Counterclaim

43. I now turn to the Defendant's Counterclaim, i.e. the sum of $117,286.20 being the outstanding amount of costs due and owing by the Plaintiff to the Defendant under the said ECC case. This is by nature a judgment debt due by the Plaintiff to the Defendant and interest at judgment rate would run from the date of judgment, i.e. 20 April 1993.

44. Section 4 (4) of the Limitation Ordinance provides:

"An action shall not be brought upon any judgment after the expiration of 12 years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due."

45. The Defendant is entitled to judgment against the Plaintiff in the sum of $117,286.20 plus interest at full judgment rate for a period of 6 years. Such sum will be used to set off the Plaintiff's net damages.

46. Damages assessed:

A.	PSLA		$250,000
B.	Loss of Earnings:
	(a) pre-trial
	($128,415+$10,965)	$139,380
	(b) future loss of earnings	$59,346
	(c) loss of earning capacity	_____$86,490_	$285,216
C.	Travelling expenses		$10,000
D.	Interest
	(a) 2% per annum on $250,000 from 19.2.1991 to 31.12.1994	$19,185
	(b) 4% per annum on $149,380 from 11.3.1988 to 31.12.1994	$40,167	$59,352
			$604,568
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LESS

E.	ECC Award		$267,486.40
F.	Judgment on costs incurred at ECC		$117,286.20
G.	Interest		$56,297.40
	(at full judgment rate (8% per annum) for a period of 6 years)
			_________
			$441,070.00
			========