Medical experts clash over whether workplace accident or a pre-existing condition caused the pain
A Hong Kong court recently dealt with a personal injury claim brought by a worker who said he injured his back while installing a steel hopper at a construction site in 2015.
The case required the court to determine whether the employer and principal contractor had breached their duties by requiring the worker to handle the equipment manually without lifting machines.
The worker argued that his employer failed to provide a safe system of work, adequate equipment, sufficient manpower, proper instruction, training and supervision for the task.
He claimed damages exceeding HK$4 million for his injuries, asserting that the manual handling of the hopper caused him to sustain a back sprain that left him unable to return to work as a rigger.
Worker claimed injury at site
The worker was employed as a rigger by the employer at a construction site in Pillar Point, Tuen Mun, where the principal contractor was managing the project.
On 29 June 2015, the then 43-year-old worker was assigned with two co-workers by their foreman to install a steel hopper—a funnel-shaped structure with four sides and an open top that tapered down.
The worker's job duties as a rigger included the transportation of rigging parts and materials as well as their installation.
At about 10:05 am on the day in question, the worker and his co-workers were supposed to put the hopper in an upright position so its tapered end could be bolted to other parts.
The worker alleged that in the course of putting up the hopper, he sustained a sprain injury to his back due to an imbalance in the distribution of the load amongst the team members, with most of the weight resting on him. Despite a short break, he was unable to resume working and was sent by ambulance to the hospital.
The worker filed his application for employees' compensation in mid-July 2016, which was subsequently settled in mid-June 2018 for HK$409,184.65. He commenced the present action for common law damages in mid-January 2017.
His legal aid certificate was discharged in early February 2022, and he had since been acting in person at trial.
Worker argued manual handling was unsafe
The worker contended he was injured as a result of negligence and breach of implied duty of care as employer on the part of the employer, as well as breach of common duty of care as occupiers on the part of both defendants.
He also pleaded breaches of various statutory duties under the Factories and Industrial Undertaking Ordinance, the Occupational Safety and Health Ordinance, and related regulations.
The major contentions were that the defendants "failed to prescribe a safe system of work specifically in requiring [the worker] to handle the Hopper manually and in doing so, failing to provide sufficient equipment, manpower, instruction, training and supervision for the execution of the task."
The worker argued that the task of putting up the hopper should not have been carried out manually without lifting machines or equipment.
In support of his argument, the worker cited instances of handling weighty parts and materials by lifting machines as depicted in various photographs he produced.
The defendants contended that the worker was an experienced rigger who possessed a specified trade safety training certificate as a construction materials rigger.
Specific instructions on the correct steps and postures in manual handling at work had been provided.
If the accident happened as alleged, it was caused or contributed to by the worker's own neglect in adopting the right posture and taking reasonable care.
The defendants also pointed out that the worker was suffering from his own pre-existing back conditio,n not brought about by the accident.
Court found no breach of duty
The court noted that the weight of the hopper was unclear before trial, as it was nowhere mentioned in the pleadings or witness statements.
Using photographs and the worker's testimony, the court determined the hopper was made of metal sheets, was hollow, taller than the worker but not substantially so, and weighed approximately the worker's own weight.
The court observed that "one therefore gets a relatively better idea about its dimensions and approximate weight."
The court explained that for liability to be established, "it must be proved that it was reasonably foreseeable on the part of the employer that the manner of work would give rise to risk of injury, and that he has failed to take reasonable steps, which could and should have been taken, to prevent such risk of injury."
The court noted that while the employer has a non-delegable duty to devise a safe system of work, "the duty is not absolute. Nor is that reasonably expected to be down to the minute detail."
The court found it significant that the worker had extensive experience in heavy manual labour.
After arriving in Hong Kong in 1996, he had worked in different jobs involving heavy manual labour since late 2010.
His previous work included carrying goods up to about 30 kilograms, working as a scaffolder carrying objects of about 15 kilograms, and working as a track foreman moving jacks weighing about 30 kilograms.
As a rigger, his daily job involved "moving and assembling machine parts weighing about 2 to 5 tons, alignment of pipes weighing about 1 ton using spanners, as well as lifting chain-blocks weighing about 20-25 kg."
Manual handling deemed reasonable in circumstances
The court found that the worker "confirmed that by the time of the alleged accident, he had already undergone the relevant safety training for construction site work, including that concerning how to safely and properly handle weights."
He had obtained a safety card after completion of such training and "claimed he was aware of the proper posture in handling weight manually." The worker was experienced in handling weight manually in various working environments both before and after joining the employer.
The court emphasised that the worker "was not required to carry out the work in question alone." The employer's foreman had assigned him to work as a team of three workers to handle the hopper from the outset.
According to the worker, his two co-workers had worked together as such since he joined the employer, and "the 3 of them had carried out similar task before, which was part of their usual job duties." There was no contention or evidence that the worker's co-workers were below reasonable competence.
The court noted that the worker had discussed with his co-workers how the task should be carried out and had a consensus that he would be the leader while the other two would follow his instructions.
He was designated the leading role because he was more experienced in the team. The worker "further explained in court that he did not actually give his co-workers specific instructions before carrying out the task, because the foreman had already explained to him and his co-workers how to manually move objects like the Hopper."
Team successfully handled equipment until final stage
The court found it significant that the worker and his co-workers "indeed managed to transport the Hopper from elsewhere at the Site to the spot where it was supposed to be installed. They also managed to lift the Hopper on the spot above the ground with a view to putting it to an upright position."
In terms of synchronisation and coordination amongst them, handling the hopper manually had so far been uneventful. It allegedly went wrong only when they proceeded to put the hopper upright, with the cause being imbalance of the load amongst them in the process.
The court concluded that "performance of the task in question manually per se was not impracticable or unreasonable in the circumstances of this case. Safety training and instruction as well as reasonably sufficient and competent manpower had admittedly been provided."
There was a conscious assignment of the work to a team of three workers from the outset, and there was no allegation that similar accidents had happened before this occasion.
The court found these measures "proved to have sufficed in enabling the team of 3 workers to manually transport the Hopper to the spot and to manually lift the Hopper at the spot uneventfully."
What was expected of the team in putting the hopper upright was their continuous attention in synchronisation and coordination amongst them, with the workers supposed to look upon the worker as the designated leader.
There was no contention or evidence that anything arose at that juncture which rendered it no longer reasonable to continue to leave it to the judgment of the team to complete the task.
Medical evidence revealed pre-existing back condition
The court heard medical expert evidence from two doctors. The worker's expert opined that the worker's current pain and symptoms would not have come about at all but for the accident, effectively ruling out pre-existing condition as a cause.
The defendants' expert maintained that the worker had "recurrent or possible exacerbation of pre-existing low back pain" and that if the accident happened as described, it should have been compatible with "probable low energy uncomplicated soft tissue sprain injury resulting in residual low back pain."
The defendants' expert noted that medical records showed the worker was referred in mid-May 2006 for lumbar spondylosis and left radiculopathy, with severe back pain radiating to his left leg.
A letter from a medical institute in Nepal confirmed his condition necessitated surgery for lumbar disc prolapse in 2006.
The expert opined that this "evidenced that [the worker] was still affected by his previous injury in 2005 with L4/5 disc disorder in the form of low back pain and left sciatica in 2006, so much so that surgical intervention was deemed necessary then."
The court accepted the defendants' expert evidence, finding it "solid and well explained when considered against the evidence of [the worker] as well as his medical history and the objective medical diagnoses and findings after the present accident."
The expert had also identified significant symptom magnification during the joint medical examination, with detection of three out of five positive Waddell's simulation signs, which "is considered to be clinically significant which, absent psychological component, is suggestive of symptom magnification."
Court dismissed claim on all grounds
The court stated: "All matters considered, I find that [the worker] fails to discharge his burden of proving that the accident was caused by the breach of duties on the part of [the employer] as the employer or [the principal contractor] as the principal contractor."
Even assuming contributory negligence needed to be assessed, the court found that given the worker's experience, training and "admitted leading role of [the worker] whom his co-workers were supposed to look up to for judgment and guidance in the execution of the task," his inadvertence contributed to the accident at around 30%.
For completeness, the court assessed the quantum of damages.
The court found that "reasonable sick leave necessitated by the minor and uncomplicated sprain injury attributable to the accident should be about 8 months" with an additional reasonable window for securing alternative employment, making absence from work for one year reasonable.
The court awarded HK$100,000 for pain and suffering, HK$330,218.91 for loss of earnings and mandatory provident fund benefits during the one-year period, and HK$7,180 for special damages, totalling HK$437,398.91.
However, the court noted that the worker "has received employees' compensation in the sum of HK$409,184.65.
That has adequately compensated for the damage truly attributable to his injury resulting from the accident in the present case."
The court concluded: "[The worker] fails to establish liability. Even assuming liability were established, no award would have been made. Hence, the same fate of dismissal of the claim." The court ordered the worker to pay the defendants' costs of the action.
