LI SAU KEUNG v. MAXCREDIT ENGINEERING LTD. AND ANOTHER

HCPI 530/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.530 OF 2001

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J U D G M E N T

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INTRODUCTION

1) This is an action for damages for personal injury and other consequential losses that is brought by the plaintiff who is a concrete worker on building sites. This type of work requires a fair degree of expertise, experience and physical strength. He and his colleagues who are engaged in this occupation are responsible for the conveying of mixed concrete up the building which is under construction to the particular floor that is being erected so that it might be poured into the formwork out of which the building takes its shape. As one floor is completed, work proceeds to the next level up and the concrete then needs to be sent up to that level and so forth until the building reaches its maximum level of construction. Presently, I will need to describe in a little more detail how this is done.

2) The plaintiff, who is now 44 years old, was employed by the 1st defendant to perform this work at the very substantial Gateway II, Harbour City Redevelopment in Canton Road, Kowloon where several tall buildings were under construction. The 2nd defendant, which is a substantial civil engineering company, was the main or principal contractor at the site.

3) The plaintiff has been the only witness who has given direct evidence of what he was doing when he met with his accident. The defendants challenge his account which is said to be untruthful in some fundamental respects. They do so by reference to the accident report prepared soon after the event and reliance is also placed on the medical evidence called on their behalf. It is submitted that this evidence tends to demonstrate that the plaintiff could not have sustained the fall that he claims to have had. The defendants also decline to accept his case that the injuries which he claims to have suffered are so disabling as to prevent him resuming employment broadly similar to what he was doing before the accident. The evidence has included a video surveillance tape recording showing the plaintiff entering a building site, from which the defendants invite me to say that he must have regained his strength sufficiently to return to what he had been doing on the day that he was injured. The medical evidence has occupied a substantial part of the trial with each side calling an orthopaedic surgeon and a consultant radiologist. This evidence has being the subject of a sharp dispute as to whether a particular feature relating to one of the plaintiff's lumbar spinal discs is attributable to the effects of the accident. My view on this part of the evidence will undoubtedly have a substantial impact on the quantum of damages, if liability is made out, and also serve as an important aid as to whether the plaintiff fell as he suggests, or whether, as the defence submit, the accident was not as dramatic or serious as the plaintiff has indicated in the course of his evidence.

THE SYSTEM OF WORK

4) It is now necessary to describe in a little detail what the plaintiff was expected to do on the occasion that he was injured. Mixed concrete is conveyed up a building by means of a series of steel pipes connected together by clips and rubber washers and fixed to the wall of the building by a series of brackets. The pipes are 6 inches in diameter and approximately 3 metres in length. Each of them weighs about 180 pounds. A particular feature of the system employed is that from the ground floor to the 8/F podium, the pipes are attached along the external wall of the building but those above the 8/F travel upwards along the internal wall. This process of assembly is done at an early stage in the construction of the particular building before the glass windows are fitted, with the result that a workman is able to stand inside the building whilst joining the pipes through the gaps that will in due course become the windows. If a junction comes between floors, then the connection work is done by the workman climbing out of the building, which is also required when the brackets or anchor-bolts need to be fitted into the wall. When doing this installation work outside the building itself, the workman is required to wear a safety helmet and safety belt. Another important aid when this system of piping was being installed was a moveable scaffold platform which was placed on the podium, from which the workman could stand and do the required fixing and bolting at those lower levels. From the 8/F upwards, as I have already indicated, the system of pipes would be installed internally, presenting a lesser element of risk, in that the workman was unlikely to fall from any great height and, presumably, although I was not specifically told by the plaintiff, some form of scaffolding platform may have been available for use inside the building. In any event, nothing turns on the particular system employed for the erection and dismantling of the piping from the 8/F and above.

5) Once the piping was in place, ready mixed concrete would be forced up the piping by means of a pump to the particular floor where it would be used. The plaintiff has explained that at the end of each day, the workmen would be required to ensure that the piping was clear of remnants of concrete that from time to time adhered to the internal sides of the pipe. Such concrete would need to be blown out of the system by high pressure blower. On occasions, when the concrete set and could not be removed by this system, there would be no alternative but to remove the particular section of pipe or pipes that had become blocked and these pipes would then be replaced with new sections. That I think is a sufficient description of how the system operated.

6) I now come to 26 and 27 June 1998. By then, the building which was 40 storeys high was nearing completion. On the morning of 26 June 1998, the plaintiff went to work at 8 a.m. as usual. The 2nd defendant's supervisor directed that he should complete the concrete casting work on the top floor of the building that day. He recollects having to work until midnight the previous day in order to complete the casting process and he then started to clear the pipes of concrete by using the blower. Unfortunately, much of the concrete within the system had set and could not be blown out.

THE ACCIDENT

7) The plaintiff and his colleagues discovered that almost all of the pipes had some sort of blockage. They worked through the day on the 26th and at about 1:30 a.m. on the 27th, they were still hard at it. At this time, the plaintiff removed a section of piping on the 8/F and then attempted to use the blower to clear the pipes from the top floor down. By 3 a.m., the blockage had still not been removed. By then, the plaintiff had been working for 19 hours. He informed his fellow workers that, in view of the blockage, all the pipes would need to be removed. It appears that the piping below the 6/F could be removed from inside the building which was also the case in respect of pipes above the 8/F which had in any event been fixed along the internal walls of the structure. The difficulty that remained concerned pipes between the 6/F to 8/F consisting of three sections. Originally, it had been anticipated that they could be moved by crane in the course of the morning of 27 June but in view of the fact that these three sections were too long because they had become stuck together, it was not possible to employ the crane. If that had been done, there was a very serious risk that the removal of the three sections each measuring 3 metres, damage would be caused to the glass windows which had already been installed at that level. What was required, therefore, was for someone to remove the uppermost section first and it is this which the plaintiff set about doing.

8) He had to remove the pipes between the 7/F and 8/F. In order to do so, he climbed out to the external wall from the edge of the 7/F. According to him, it had been raining heavily for the whole of the day and into the night. At the time that he ventured out onto the pipe work, the rain continued to fall heavily. He had to work alone. None of his colleagues was available at that time nor were there any supervisors. It was also dark. He had no scaffolding from which he could operate and attach his safety harness to. Nor was there a working platform. What he did, therefore, was to climb out onto the pipe work and cling-on using his arms and legs. He had with him a torch and a wooden baton. He wore his safety helmet and some rubber safety shoes which gave better grip. He was able to climb up and remove the pipe clip that connected two sections of pipe which were above him using his hands. He had expected that once he removed the clip, the pipe above him would remain in place since concrete had set and that would have caused the two sections of the pipe to "glue" together. He had expected to loosen the junction by hitting at it with the wooden baton. However, unexpectedly, once he loosened the pipe clip, that section of the pipe above him came off and struck him in the small of his back. It caused him to lose his grip on the section of pipe that he was holding and he fell down to the safety platform on the 6/F. He estimates that he fell about 15 feet. The impact of the fall made him dizzy. He was unable to move and he felt pain all over his body. After a while, he was found by fellow workmen who summoned an ambulance and he was removed from there to Queen Elizabeth Hospital. He remained in hospital until 1 July having been kept under observation and receiving conservative treatment which fortunately was all that appeared to have been necessary. I shall say more of the medical aspects of his treatment and his progress since then in due course.

9) If the plaintiff is right about this, he had been required, after 19.5 hours of effectively continuous work, to climb out onto a soaking pipe, without any means of attaching himself to a fixed point, which would prevent a fall, and by means of using one arm whilst he clung on to the pipe with the other, hit the junction of two pipes so that they became free of each other in order to facilitate their dismantling. From that description, it is difficult to imagine a less safe system of work. To make matters worst, the plaintiff has told me that this was his usual and expected practice in removing piping at that particular level of the building.

MISCELLANEOUS POINTS ON THE ACCIDENT

10) As I have already indicated, the defendants simply do not accept the plaintiff's version of events. One of the features of the plaintiff's case is that he had been expected to do this intrinsically dangerous task in driving rain which had been continuous throughout the day. Having regard to this evidence, the defendants have obtained the wind and rainfall readings for the first six hours after midnight on 27 June. This data appears at D58 in the trial bundle. It will be observed that for the first three hours, there was absolutely no rainfall. For the fourth hour which would have included the time when the plaintiff says he fell, there was trace rainfall with the observation that there had been a "recent shower". The fifth hour has a reading of 0.2 millimetres which, I presume, is less than "trace rainfall" because it is capable of being measured. The final hour also notes trace rainfall. Having regard to this evidence, Mr Lim, who appears for the defendants, submits that the plaintiff is not being truthful when he speaks of heavy and continuous rain. This is a matter I propose to return to when I indicate my findings on the evidence. The other piece of evidence relied on is the 2nd defendant's industrial accident report which is at D56 and D57. The report was prepared by a Mr So who interviewed the plaintiff at the site office on 3 July, about a week after the event. The material part of the report is at D57 which is as follows :

"At the time when I was dismantling the pipe on 6th Floor, when loosening the screw between the pipes, the pipe suddenly fell down and pressed on my waist and my back. I shouted to notify the colleagues and the colleagues further notified the foreman of Chevalier, Mr. Wong Lap Chi. After Mr. Wong reported to the police, an ambulance arrived at the scene and sent me to the Queen Elizabeth Hospital."

11) Understandably, Mr Lim draws attention to the fact that there is simply no mention there of the plaintiff having been knocked off the pipe that he was holding onto and falling some 15 feet to the ground. This, of course, was the major feature of the whole incident and having regard to the absence of that in the accident report, it is submitted on behalf of the defendants that the plaintiff is simply not to be believed when he now suggests that he fell. His explanation is that he gave Mr So a full account of what had happened, including the fact that he had fallen to the 6/F podium, but that Mr So has neglected to record it. He also prays in aid the fact that given his limited education, when he came to sign the declaration, he had not observed that there was no mention of this part of the accident in the report. To this, I must also return presently. Lastly, by way of miscellaneous, albeit important, matters on credibility the defendants also rely on the medical evidence which I must describe in a moment. The medical experts called on behalf of the defendants have drawn attention to the fact that had the plaintiff fallen some 15 feet as he suggests, one might have expected to find injuries consistent with such a fall. The most obvious signs being fractured heels and injuries to the buttocks and other injuries to the tail of the spinal column. This plaintiff had no such injury.

THE MEDICAL EVIDENCE

12) There is no question that the plaintiff did suffer an injury at the approximate time that he has described. He was seen at the Accident and Emergency Department of the Queen Elizabeth and the first report that I have is the one which appears at C1 in the trial bundle prepared by Dr Man Shui-wah of the Department of Orthopaedics and Trauma at that hospital. It is dated 9 October 2000, so a little over two years after the incident. It amounts to a collation of the medical notes prepared by the various doctors who attended the plaintiff. Unfortunately, the medical notes have not been put in evidence. This is unfortunate, particularly in relation to the question of whether the plaintiff had actually sustained the fall. The first two sentences of the report relate to a description of the accident and the second sentence, in particular, speaks of a fall from the 7/F to the 6/F of a building. In order to counter the point that the defendants have sought to make about the absence of any reference to a fall in the accident report, which I have already drawn attention to, Mr Lam who appears for the plaintiff, relies on this reference. He says, here is independent evidence from the hospital which indicates that the plaintiff had indeed reported to them that he had just sustained a fall and Mr Lam also relies on the fact that this reference appears at the very beginning of the report. From that, he says, that one might have expected Dr Man in preparing his report to have worked chronologically through the medical notes and this therefore indicates that the first two sentences must have been prepared from the first of the medical notes which would have been made on his admission to the Accident and Emergency Department. Here therefore, Mr Lam submits, is the earliest possible reference to a fall which I should properly take into account in assessing the plaintiff's credibility on this very important issue. Mr Lim, on the other hand, submits that where the plaintiff has not bothered to obtain the medical notes himself, we shall never know when it was that the plaintiff actually made his complaint to the doctors that he had sustained a fall. Therefore, I should not speculate that this reference comes from the initial admission record. It could just as well have come from a subsequent record, by which time, the plaintiff had time to reflect on matters and had decided to exaggerate his case by also suggesting that he had been the victim of a 15-foot fall, particularly so where the medical evidence might tend to point against such a fall. Clearly, both sides of this particular argument has its merits and I must return to this when I indicate how I find on the question of whether the plaintiff had sustained a fall.

13) On admission, examination showed tenderness over the upper thoracic and lower lumbar spine. Some bruising and swelling was detected over the corresponding area of his back. There was no neck pain and the range of movement of the neck was full. No neurological deficit was detected. X-rays were taken of the thoracolumbosacral spine which did not reveal any fracture or dislocation. That having been said an irregularity was found at L4 described by Dr Man as "a suspicious fracture" of the spinous process of L4 ...". A CT scan was made of the corresponding thoracic and lumbosacral spine and that showed no fracture nor paravertebral soft tissue swelling. The plaintiff was treated conservatively for back contussions. Dr Man observes that his condition improved, the back pain decreased and he could walk unaided. He was discharged on 1 July 1998 and given analgesics, a sick leave certificate and directed to have out-patient physiotherapy. He was subsequently reassessed at the out-patient clinic and was not able to resume work because of his back pain. He subsequently complained of neck pain and muscle spasms of the lower back, both of these symptoms being absent when he was originally taken to hospital. Further X-rays of the lumbar spine were made on 21 April 1999, nine months after the accident and these X-rays showed "old avulsion fracture of antero-superior aspect of the body of L4". The alignment and discs spaces were normal and no neurological deficit was present. Dr Man has observed that the plaintiff have been on a long period of physiotherapy and he was also referred to the Occupational Therapy Department for work rehabilitation. This having started on 8 March 1999 but the plaintiff made no progress even after three months of assistance at the Occupational Therapy Department. His ability to work has been limited by his back pain and discomfort of the lower limbs. He applied for employees compensation and on 22 March 2000, the Employees (Ordinary Assessment) Board ("the Board") issued a certificate, indicating a 5% loss of earning capacity and certified a period of 27 June 1998 to 17 December1999 as the period of absence from duty necessary as a result of the injury. The plaintiff asked for a review and the Board met again and issued a certificate of review of assessment on 20 September 2000 in the increased percentage of 7%. This is very much how the matter remains to the present period, save that the plaintiff has been awarded $568,000 in respect of his Employees Compensation Ordinance application for which he must, of course, give credit in respect of any damages that he might be awarded in this action.

14) The parties' own medical experts only have one real disagreement which, as I have already indicated, is a very substantial one. This relates to the presence of what the plaintiff's experts refer to as an avulsion fracture of the antero-superior aspect of the body of L4. Dr Au, the Orthopaedic Specialist and Dr Robert Li, the Consultant Radiologist who have given evidence on behalf of the plaintiff, are both convinced that this has been caused by the effects of the blow to the back caused by the pipe having become detached and striking the plaintiff there, together with the effects of the fall. Dr Tsoi, Orthopaedic Surgeon and Dr Peter Cheng, the Consultant Radiologist, are equally adamant that this condition has nothing to do with the events of 27 June. Nothing else in the medical evidence is materially in dispute and so I must now concentrate on this feature at L4. If the plaintiff's experts are right, then it is this which has brought about the painful symptoms which are likely to be more or less permanent and which certainly prevent him from going back to his pre-accident employment. His back could simply not stand the stresses and strains of physically demanding work. If the defendants' two experts are correct, this condition, which is not an avulsion fracture in their view, is completely unrelated to the accident and is therefore to be left out of account in my assessment of the direct effects of the accident.

15) Whilst of course the orthopaedic surgeons have been able to provide me with a lot of assistance in resolving this matter, the real evidential contest falls to be resolved on my view of the evidence of the radiologists, both of whom I have found helpful and persuasive, but unfortunately, both cannot be right in their conclusions.

16) I take Dr Robert Li's evidence first. Dr Li's point on the X-ray and the CT scan of 27 June 1998 is that when one examines both of these, a small avulsed bone fragment can be seen. Dr Li's point here is that what is very significant is that the fracture fragment has a sharp margin with no surrounding callus which is suggestive of an acute condition. From that position, Dr Li then seeks to make good his point by indicating that there is a growth in the ossification around this fragment in the more recent scans and X-rays which serves to underline his point that what he saw in the June 1998 evidence was a recent condition, which subsequently, by virtue of the healing process took on callus around it and became more ossified. This view is supported by Dr Au.

17) The other side of the argument is put by Dr Peter Cheng. He disagrees with Dr Li's opinion that when one looks at the June 1998 scan and X-ray that there is no sclerotic boundary to the fragment which only becomes apparent in the later X-rays and scans. Dr Cheng says that when one looks at the outer surfaces of the fragment from the 1998 scan and X-ray, which I have done, it is apparent that there is a sclerotic boundary. I am bound to say that I was able to discover such an outline it is plainly there even to the medically untrained eye. The other feature of the evidence which has convinced Dr Cheng that this fragment cannot be the result of acute trauma is the absence of inflammation and swelling which would undoubtedly be associated with such a fracture. He would have expected to have seen the presence of those features in the X-rays and images taken in June 1998. Dr Li's reply to that is that these images having been taken so soon after the accident would not be expected to show such features. Bleeding and inflammation would have come later. Dr Cheng disagrees, saying that such features would certainly be present shortly after the event.

18) A degree of confusion has been introduced into the evidence because originally Dr Tsoi thought that this was probably an old fracture which he thought may have been related to an injury sustained by the plaintiff some 15 years ago but he has since withdrawn that suggestion having had the benefit of subsequent imaging of the area and having regard to what Dr Cheng has had to say. So, any old injury can, I think, be safely excluded from the case. Dr Cheng's view of this is that the plaintiff did not sustained a fracture when his back was injured on 27 June 1998. His judgment is that this is a bony spur with corticated margins. He further describes it as either a detached osteophyte or an unfused ring apophysis which he has also described as a developmental anomaly known as a limbus vertebra. Quite apart from all of that, he also makes the point that it is also exceedingly rare for an avulsion fracture to occur at this corner of the L4 vertebra. If there is a fall from height as the plaintiff has suggested, the affected vertebra would be at T12 and L1 which is at the thoraco-lumbar junction.

19) In a case where both radiologists have made out convincing cases in support of their view, I have not found this an easy matter to resolve. Nevertheless, ultimately I prefer the analysis of Dr Cheng. I am bound to say that the 1998 images of the fragment indicate a sclerotic margin albeit perhaps less pronounced than in subsequent images. That has the effect of casting doubt on Dr Li's opinion that the calcification has only developed later thereby indicating an acute condition in 1998 which healed with the passage of time. The other matter is that Dr Cheng has also persuaded me of the significance of the absence in 1998 of bleeding and inflammation in the immediate vicinity of the finding at L4. He would have expected such inflammation and bleeding to be present if there had been a fracture associated with the accident. These two features in particular have persuaded me that what was found at L4 was a limbus vertebra or bony spur. Accordingly, the pain attributable to that condition must be left out of account in any assessment of damages because the plaintiff has failed to demonstrate a connection between that and what happened to him on 27 June.

20) The other aspect of the medical evidence which I should also deal with concerns the apparent lack of typical signs of trauma associated with a fall from a height of 15 feet, that is to say injuries to the heels (frequently as severe as fracturing), or injuries to the buttocks and to the tail of the spine located in that area. There is also no sign of any compression injury further up the spinal column which one would associate with such a fall. All of this has been picked up by Dr Tsoi and Dr Cheng for the defendants and I am afraid that neither Dr Au nor Dr Robert Li have been able to provide any persuasive answer to that. This evidence needs to be carefully weighed by me when I come to decide whether the plaintiff fell as he suggests.

21) The conclusion that I have arrived at therefore on the medical evidence is that the plaintiff must have sustained an unpleasant blow to the centre of his back which has resulted in contusions and bruising of the soft tissue which would have required him taking some time off work. The other, perhaps more significant painful symptoms, are not attributable to the accident. How I deal with that in terms of the plaintiff's recovery from symptoms directly referable to the accident I will leave over until that part of this judgment relating to quantum.

MY FINDINGS AS TO THE EVENTS OF 27 JUNE 1998

22) Mr Lim has suggested that if the plaintiff fails to satisfy me on a balance of probabilities that the events pleaded in the Statement of Claim occurred then he must be taken to have failed in making out his claim which should therefore stand dismissed. In my judgment this all or nothing approach would not be right. I am entitled to accept part of the plaintiff's evidence as truthful and accurate and to reject other parts. If on the parts that I do accept, he can demonstrate negligence and/or breach of statutory duty by one or both of the defendants then subject to other matters such as contributory negligence and the like he must be taken to have succeeded in the action.

23) The plaintiff has persuaded me that he climbed out onto the piping in order to reach up, unclip and detach the top section of pipe between the 7/F and 8/F in the way that he has described when the top pipe behaved unpredictably, detached itself, fell and struck him in the small of the back. I reject the other part of his evidence that he then lost his grip and fell some 15 feet. Firstly, there is no persuasive medical evidence to suggest that he had such a fall. I draw attention to the absence of injuries to his heels and buttocks which one would have expected to see. Indeed, all of the doctors are agreed that a fall from such height can be so serious as to cause death. In this case that there is no other evidence of injury save to the centre of the back. For the reasons that I have already given, I have found that there was no fracture at the L4 position and therefore all the medical evidence suggests a blow to the centre of the back by a falling piece of pipe. In coming to this view, I also take into account the fact that the accident report which the plaintiff gave to Mr So makes no mention of a fall. I have listened with care to the plaintiff's explanation for this. The most important part being the fact that he is not a particularly good reader and, therefore, he was not able to see that Mr So had left out what he had told him about the fall when he came to sign the report. This fall would have been by far and away the most significant feature of this accident and I simply do not believe that had a report been made by the plaintiff that he had fallen that the safety officer would have deliberately omitted to mention it. In my judgment, no reference was made by the plaintiff at the time simply because he had not had a fall. In saying that I have not lost sight of the fact that there is reference to a fall in Dr Man's report which I have already related. It may be that had the plaintiff's solicitors produced the medical notes and those notes had indicated that the complaint had been made as soon as he arrived that hospital that my view may have been different although I cannot be certain. As matters stand, I am simply not prepared to find that just because the fall is mentioned in the second sentence of Dr Man's report that is indicative of the fact that he picked that up from the initial admission notes. It is equally consistent with the plaintiff having indicated that he had fallen some time later in his treatment in order to increase the worth of his claim and perhaps justify his apparently static response to physiotherapy and occupational therapy. The other matter which goes to credit and which I have taken into account is the fact that the plaintiff has said that he carried out this work in driving rain and that it had been raining continuously. That simply is not true. The information from the Observatory amply demonstrates that. This is yet another piece of exaggeration by the plaintiff to make the case appear even worse for the defendants. Mr Lam has done his best to try and provide an explanation as to why he may have been mistaken in saying that drawing attention to the fact that it may have been raining earlier in the day and that the plaintiff had previously been working inside the building with water pouring through and he was rather confused about whether it was raining at the time when he met with this accident. I am afraid I am not prepared to accept that sort of explanation. I find as a fact that the plaintiff was able to hold on and lower himself to the ground where he was found, no doubt in pain, from where he was taken to hospital.

BASED ON THESE FINDINGS HAS NEGLIGENCE BEEN MADE OUT?

24) The answer must, resoundingly, be in the affirmative. This is a very bad case of negligence. Any employer who in effect obliges a workman to work for 191/2 hours non-stop (save for meal breaks) and then oblige him to clamber up an exposed pipe in darkness without any safety equipment must be guilty of negligence of the worst possible kind. This, I am afraid, is one of those cases where economic considerations, the necessity to get on and finish the job and be paid, have been allowed to take precedence over the most basic safety considerations. No workman should be exposed to such risks. If the plaintiff was going to be required to do this sort of job, it is quite clear that the scaffold platform which had been used when this section of pipework was erected should have been put in place, from where the plaintiff would have been able to work more safely and to attach himself to a secure point to avoid the sort of risks which resulted in his injury. In any event, this was not a one-man job as Mr So has rightly observed in the accident report. To expect one man to do this work at that time of night alone was, plainly speaking, scandalous.

25) There is not a hint of a safe system of work here and both the 1st defendant as employer and the 2nd defendant as principal contractor are guilty of negligence and breach of statutory duty.

CONTRIBUTORY NEGLIGENCE?

26) Given my findings on negligence, it is almost offensive to suggest that the plaintiff, for all his lack of frankness on the question of whether he fell or not, had somehow contributed to his injuries. This man had been directed to perform this work in the middle of the night, alone without any equipment, save for his bare hands, a wooden batten and a torch. I do not think it can properly be said that he should have declined to carry out the work and indeed that is not how the case is pleaded against him. The plea of the contributory negligence must fail.

QUANTUM

Pain, suffering and loss of amenity

27) The plaintiff seeks an award of $450,000 under this head. The defendants contend for the lower sum of $240,000. Mr Lam has drawn attention to three cases, firstly Sze Sing Sin, Nguyen J, 9 December 1988; Chan Chi Sing, a decision of the Court of Appeal, 21 December 1999; and Lawati Bhawani Bikram, Master de Souza, 26 October 2001. All these cases are awards at the lower end of the "serious injury category". It needs to be remembered of course that having rejected the plaintiff's case that he has sustained an avulsed fracture at L4, I am left with a completely different medical scenario. This is, I am afraid no more than a firm blow to the back by a falling pipe which of course, whilst unpleasant, is nothing like being left with a healed fracture which will result in a permanently painful back. Once that aggravating feature is removed from the case, I am not entitled to consider damages in the "serious category". In his first report at C21, Dr Tsoi says that : "Sick leave for simple direct contusion injury over back rarely requires sick leave of more than six months." In his supplementary report of 19 October 2001 at C23, he indicates that the plaintiff's inability to resume normal heavy duty work is mainly related to natural degeneration of the spine, with the accident only contributing minimal additional inconvenience. He adds that the residual back pain would not preclude the plaintiff from performing climbing activities or lifting moderate weights, anything up to 35 kilos. In a more recent report of 6 April 2002 (C24), he says that the accident has only contributed a minor role to his current permanent impairment and loss of earning capacity. As against that, of course, Dr Au who has based much of his view on his finding of an avulsion fracture at L4 says that this condition, which he has directly attributed to the accident, is more debilitating than Dr Tsoi has suggested. Given my view of the medical evidence and, being loyal to my finding, that the direct results of the accident have caused soft tissue injuries and contusions, such injuries should have comfortably resolved after a period of two years. His present condition is now dominated by the injury at L4 which I must ignore. Under this head the proper award is one of $300,000. To this amount interest must be added at the conventional rate of 2% from the date of the writ until judgment. This calculation can be made by the parties solicitors.

Loss of earnings

28) Before I subdivide the matter between pre-trial loss and any future loss, it is necessary to refer to the video surveillance tape recording. This relates to matters that were observed on 12 to 22 November 2001, that is to say almost 31/2 years after the accident. The recording shows the plaintiff walking and moving easily and giving every appearance of being comfortable and pain-free. On two of the days, he was seen to enter a building site and not to emerge until after the end of the working day. The plaintiff himself was frank enough to volunteer that in fact he had attended the site for the whole of the previous week. And in order to enter the building site, he had to pass a test which would have entitled him to a Pass enabling him to enter the site itself. Anybody who does not hold such a Pass would be refused entry. The defendants suggest that having regard to what I was able to observe on the tape that the plaintiff is now in sufficiently good health to have returned to his pre-accident employment. It is right to say that when he was filmed he was not wearing ordinary working clothes but he had with him a knapsack, the suggestion being that he was carrying his working clothes and safety hamlet in it and that he would change once he got to work. This is to avoid detection before trial. His explanation is that he was merely going there in order to assist a friend who was involved with concrete casting work and he had asked the plaintiff to advise him on the position of the various pumps that would have pumped the mixed concrete to the required floors. In the event that he needed to wear tougher clothing that would have been provided for him at the building site. In his knapsack he only carried small items and certainly no working clothes. He gave his friend this assistance entirely free of charge. I am not disposed to accept the plaintiff's explanation. I have already made adverse findings about the plaintiff's evidence as to the circumstances of the accident itself and I have taken those matters into account in assessing the plaintiff's credibility on this particular issue. I simply do not accept that this plaintiff who clearly gave the appearance of being in good health and having regard to his previous high income, relative to other construction workers, would go to a building site for extended periods and do it entirely on a charitable basis. I am satisfied that he was working there on the occasions that he was seen and that although it is not possible to be precise as to when he started work, that does not matter for reasons which will become clear in a moment.

Pre-trial loss of earnings

29) But for the effects of the accident, I am satisfied that the plaintiff would have been in a position to return to work after a period of two years which, if anything, is on the generous side. In making that assessment I of course leave out of account the condition at L4 which is not related to the effects of the accident itself. The next matter which requires resolution is to find what the plaintiff's pre-accident earnings were. I am bound to say that both sides have been rather unimpressive on this aspect having regard to the paucity of evidence which they have put forward. The plaintiff has suggested earnings of $45,000 a month. I have seen no independent proof of that such as tax returns, which clearly he would be liable to make having regard to income of that level, nor wage slips or anything of that sort. Equally unconvincing has been the evidence of the defendants. I have, in round figures, a figure of $30,000 which is put forward on their behalf but this is a case where they have simply chosen not to call any evidence save, of course, for medical evidence. One thing is clear and that is that the hourly rates over the various periods of the working day are, broadly speaking, agreed and these rates are substantial when compared to less skilled construction workers. I have seen a savings account put in by the plaintiff which shows frequent movement of money and regular payments in to the account. When one tries to analyse the payments in, they do not appear to support a monthly wage of $45,000. What is clear is that the plaintiff did have to work very long overtime and this would undoubtedly have been reflected in his wage packet. Ultimately, and it really should not be left to the judge to do it on this basis, I have to do my best on scanty information. I am disposed to say that his average earnings were $40,000 a month. I do not believe that the amount was as low as $30,000 which the defendants contend for.

30) Working from that figure and applying two years loss of earnings, this head of damages comes to $960,000.

31) There is a substantial claim for future loss of earnings, but this must fail in its entirety because having regard to my finding that he would have been expected to have fully recovered after two years his present difficulties are not related to the effects of the accident. His current difficulties all stem from degenerative changes and any other problems related to his condition at L4 which have not been in any sense aggravated by the effects of the accident. It must also follow that the claim for loss of earning capacity must go for the same reasons.

Other special damages

32) There is a claim here totalling $56,792 including $32,000 on tonic food, $10,000 for the purchase of a massage chair, $11,232 on other medical expenses and $3,560 on travelling expenses. A reasonable amount is always allowable on tonic food. I must make an apportionment between his current symptoms and those directly referable to the accident itself, as well as making an assessment of what is reasonable on tonic food. Under this head, I propose to allow $16,000. A massage chair is not reasonable in my judgment having regard to the limited direct effects of the accident. The claim for medical expenses again also relates to his entire condition and I do not think the defendants should be liable for the whole of this sum, I shall allow $7,500 under this head and a further $2,500 travelling expenses, giving a total of $26,000 under this head.

Credit for the employee's compensation award

33) The plaintiff must give credit in the sum of $568,000 in respect of this.

Interest on special damages

34) I award the plaintiff interest (after deducting the ECC award) at half the judgment rate from the date of the accident.

35) Accordingly, there must be judgment to the plaintiff in the total of these amounts being the net amount of $718,000, together with interest as appropriate and indicated in the course of my judgment together with an order for costs in the plaintiff's favour. This order for costs will be an order nisi in the usual way.

Remarks: