HCPI 295/2019
[2022] HKCFI 3043
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 295 OF 2019
________________________
BETWEEN
HAIDER AWAIS
Plaintiff
and
INTRAFOR HONG KONG LIMITED
1st Defendant
DRAGAGES - BOUYGUES JOINT VENTURE
2nd Defendant
________________________
Before: Hon Wilson Chan J in Court
Dates of Hearing: 22 and 23 June, 10 August 2022
Date of Judgment: 6 October 2022
________________________
J U D G M E N T
________________________
A. INTRODUCTION
1. At the material time, the plaintiff was employed by the 1st defendant as a rigger at a construction site at jet grout land setup, Southern Landfall, Tuen Mun - Chek Lap Kok Link, Hong Kong (the “Site ”). The 2nd defendant was the principal contractor responsible for the Site.
2. The plaintiff’s pleaded case is that on 19 January 2018, he was instructed by an employee and/or servant and/or agent of the 1st and/or 2nd defendants to break the concrete inside a water container by using an electric drill. In order to carry out the task, the plaintiff had to squat and bend forward while holding the said drill with both his hands. Whilst in the course of carrying out his work, suddenly and without warning, he felt pain in his lower back (the “Accident ”). As a result, he suffered injury to his back.
3. Following the Accident, the plaintiff returned to work on 2 February 2018 with the 1st defendant, until 18 May 2018.
4. The plaintiff claims that his injuries and the resulting loss and damage were caused by the negligence and/or breach of statutory duty and/or breach of occupier’s liability of the 1st and/or 2nd defendants.
5. Both issues of liability and quantum are in dispute.
B. LIABILITY
B1. Applicable principles
6. It transpires from the Statement of Claim that the plaintiff’s alleged causes of action against the defendants include (i) negligence/breach of employer’s duty; (ii) breach of common duty of care under the Occupiers’ Liability Ordinance, Cap 314; and/or (iii) breach of statutory duties under the Occupational Safety and Health Ordinance, Cap 509 (section 6(2)(a)-(c)), and the Occupational Safety and Health Regulation, Cap 509A (regulations 23, 24, 25, and 27(1)(a), (c) & (d)).
Burden of proof
7. The plaintiff must clearly set out his case on pleadings, and he also bears the burden to adduce satisfactory evidence to prove his pleaded case on balance of probabilities. See Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd, HCPI 936/2005 (unrep, 20/11/2007) at §17:
“17. The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.” (Emphasis added)
8. See also: Liu Cairong v Parker Cleaning Services Co Ltd, HCPI 189/2013 (unrep, 23/02/2015) at §26, where DHCJ Kent Yee said this:
“26. After all, the plaintiff has the burden to prove the occurrence of the Accident on the balance of probabilities. The mere fact that the plaintiff fell from the staircase in the course of her employment with the defendant could not attach any liability to the defendant in this action . Though this court is still uncertain as to why and how exactly the plaintiff fell and got injured, having rejected the plaintiff’s account of the Accident including her allegation that she was then performing cleaning job at height, this court has no alternative but to dismiss her claim.” (Emphasis added)
Credibility of factual witnesses
9. In Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (unrep, 8/04/2014) at §§77-82, DHCJ Eugene Fung SC set out some helpful guidance as to the approach to be adopted in assessing the credibility or reliability of evidence given by factual witnesses:
“77. Generally speaking, contemporaneous written documentsand documents which came into existence before the problemsin question emerged are of the greatest importance in assessingcredibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). …
78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood orunlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).
79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is oftentested by a comparison between the witness’ oral testimony and his or her witness statement.
80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), …
81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:
‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to theobjective facts proved independently of their testimony,in particular by reference to the documents in the case,and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’
82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’credibility features prominently in the court’s determination. …”
10. Where the plaintiff has put forward one version of event, which is different from a previous version of event also put forward by him, “the judge’s function was not to decide which of the plaintiff’s versions of the incident was more preferable. His role was to determine whether, on the balance of probabilities, the plaintiff’s current version of the incident was correct. That involved considering whether the plaintiff’s previous versions undermined his current version to such an extent that it could not be said that the plaintiff’s current version of the incident was probably correct… ” (Chan Chi Shing v Tsang Fook Metal Engineering, CACV 238/1999 (unrep, 21/12/1999) at page 3, as applied in Liu Kin Pong v Kee Wah Food Production Limited, HCPI 632/2014 (unrep, 6/07/2017) at §§17&18).
11. In Liu Kin Pong (ibid) (at §18), the court found that the plaintiff’s many different previous versions of the accident had clearly undermined his current version given at trial, and it was accordingly held that his description of the event was not credible nor reliable.
B2. How did the accident happen?
12. The plaintiff has put forward several different versions of event as to how the Accident occurred.
13. In the Statement of Claim dated 14 August 2019 (“SoC ”), it was pleaded that:
“On 19th January 2018, the plaintiff was instructed by an employee and/or servant and/or agent of the 1st and/or 2nd defendants to break the concrete inside a water container by using an electric drill. In order to carry out the task, the plaintiff had to squat and bend forward while holding the drill with both his hands. Whilst in the course of carrying out his work, suddenly and without warning , the plaintiff felt pain in his lower back (the “Accident”). As a result, the plaintiff suffered back injury.” (Emphasis added)
14. In the plaintiff’s witness statement dated 11 March 2020 (“P’s WS ”) at paragraphs 16-17, he stated:
“16. […] Despite wearing safety shoes, the bottom of the tank was slippery making it hard for me to stand firmly. Initially while using the drill inside the muddy mixture, I noticed that the tip of the drill was slipping. I was unable to see and aim the dried concrete. I had to squat down a little while using the drill to balance and control my body to prevent the drill from slipping and myself from falling.
17. At the time of my accident, I had been breaking concrete for 10 to 15 minutes continuously. When I finished drilling and tried to straighten my body , I felt a sharp shooting pain in my lower back. The pain was so severe that I could not carry on working.” (Emphasis added)
15. In the plaintiff’s statement to the Labour Department dated 29 October 2018 (the“Labour Department Statement ”), as to the “Course of Accident”, it was stated as follows:
“I was assigned to break concrete [illegible] by using a drill machine while drilling my right foot slipped from mud [illegible] I felt sharp shooting pain in my back.”
16. Insofar as this Labour Department Statement is concerned, during cross-examination, the plaintiff initially said that he was not the one who prepared or wrote down the contents of this document, it should have been his lawyer who prepared it for him, and he could not recall whether his lawyer explained its contents to him before asking him to sign it. He did agree that the signature on it was his own signature. Later on, he changed his evidence to say that it was his friend, who acted as an interpreter for him, and prepared the document for him.
17. When testifying in Court, under cross-examination, the plaintiff explained that it was a Mr Alex who instructed him to carry out the drilling works inside the water tank in the morning of the date of the Accident. Mr Alex told him that Mr Esa wanted the works to be completed within that day. Mr Alex provided him with the electric drill, and there were two other workers working with him (one of whom was a Pakistani, the other a Nepali). The plaintiff, wearing the safety shoes provided by his employer (ie the 1st defendant) stood inside the tank, which contained a mixture of concrete and water, and started using the drill to break the concrete at the bottom of the tank. The bottom of the tank was slippery, and after using the drill for approximately 10 minutes, the tip of the drill slipped to the front, and his left foot also slipped further ahead in the liquid . When he tried to straighten himself, he heard a click sound in his back . He did not know what happened, but another worker there helped him to get out of the tank and the then laid down on his back. He initially could not feel the lower part of his body at all and was “more like unconscious”. He was given first aid on the spot and then taken to the hospital by ambulance. He later further explained that he was initially bending forward, with his legs also bent at the knees (which he initially described as “squatting”); he then felt pain as he was trying to straighten himself up. He felt the pain for around 30 seconds before stopping work .
18. Other documents in which the course of accident was described include the following:
(1) The North Lantau Hospital A&E Clinical Documentation Form dated 19 January 2018: “Chief complaint: Complained of severe back pain at 0830 when he holding [sic] machine in construction site. Then, he can’t move nor walk”. “Reassessment”: “Doctor’s note: 19-Jan-2018 13:30… decreased in pain, much better, advised to seek doctor’s advice for persistent pain”.
(2) The First Aid Report prepared by the 2nd defendant dated 20 January 2018 (the “First Aid Report ”): “[…] The tool being used was a demolition hammer weighing around 5 kg. After a few minutes of work he felt pain at his back. He was supported by 2 colleagues and climbed out of the tank using the cat ladder of the tank…” “Seriousness of Injury or Extent of Damages: minor…”
(3) Medical Report prepared by Dr Chris Ngai: “Patient first attended my office on 1st February, 2018, giving a history of sprain injury of low back while lifting a heavy drill on 19th January, 2018.”
(4) Form 2 dated 18 July 2018 prepared by the 1st defendant: “As alleged, after concrete trimming for 1-2 minute, I/P attempted to squat, he felt back pain.”
(5) Yau Ma Tei Jockey Club General Out Patient Clinic, consultation note dated 13 September 2018: “sprain back when getting up from drilling work”.
(6) The Joint Medical Report dated 21 July 2020 (date of examination: 8 May 2020) (the “JMR ”): “He states that he was working inside a water container and using an electric drill (15-20 kg) and breaking concrete, and he was in a squatting and bending forward position. While holding the drill with his hands and in the course of carrying out his work, he felt low back pain. He had no loss of consciousness…”
Discussion
19. I agree that the plaintiff’s previous versions of event do, in fact, materially undermine his current version given under cross-examination, to the extent that it could not be said that the plaintiff’s current version of the incident was probably correct (see: Chan Chi Shing (supra); Liu Kin Pong (supra)), for the following reasons:
(1) It is essential for the plaintiff to clearly set out his case on pleadings (Tsang Chung Ming v Caritas-Hong Kong [2019] HKCFI 1035 , §§10-11). In the SoC (as prepared by the plaintiff’s former solicitors), it was only vaguely mentioned that the plaintiff “suddenly and without warning” felt pain in his back whilst carrying out his work with the electric drill.
(2) Descriptions as to the how the Accident occurred, or the mechanism of the relevant back injury sustained by the plaintiff were also vague in the other relevant contemporaneous documents made available for the purposes of the present action.
(3) Comparing the plaintiff’s version of events as stated in the Labour Department Statement and the plaintiff’s oral evidence at trial, there is an obvious discrepancy as to whether it was his left foot that slipped in the mud, or his right foot. The plaintiff was evasive and even changed his evidence when answering the question as to whether the contents of the Labour Department Statement (which was signed by him) were true and accurate (first saying that it was prepared on his behalf by his former solicitors, then saying that it was prepared by a friend, and in any event claiming that he could not really recall what he told his friend in preparing this document). Such evasive behaviour tends to suggest that the contents of the Labour Department Statement might be disadvantageous to the plaintiff’s case (or so perceived by him subjectively).
(4) The plaintiff never mentioned the hearing of a “click” sound, before feeling the pain, in any of his previous versions of event, nor would this be supported by any medical/contemporaneous documents. No neurological deficit nor bone fracture was found upon physical examination. This suggests that the plaintiff was exaggerating his injury at trial.
(5) During cross-examination, the plaintiff mentioned that he was “more like unconscious” after the Accident. This was likely to be an exaggeration as well, as the state of unconsciousness was not mentioned previously, nor supported by contemporaneous medical evidence.
(6) Also during cross-examination, the plaintiff mentioned, for the first time, that he felt the pain in his back for almost 30 seconds before stopping the drilling task at hand. This is either at odds, or inherently improbable, when compared with his previous versions of event, ie that he suddenly felt a sharp shooting pain in his back. Would the plaintiff not have stopped his work immediately upon the sensation of a sharp shooting pain? Also, importantly, this would be inconsistent with what was stated in P’s WS, ie that as he had finished drilling and was trying to straighten his back, he felt sharp pain.
(7) The plaintiff informed the court that there was an eye-witness to the Accident, a Mr Zaim Hassan (as stated in the Labour Department Statement), but unfortunately Mr Hassan was not made available as a factual witness for the plaintiff at trial.
20. In short, having rejected the plaintiff’s account of the Accident, the plaintiff has not discharged his burden of proof in establishing his case as to how the Accident occurred on balance of probabilities. This court has no alternative but to dismiss his claim.
C. QUANTUM
21. For the sake of completeness, I shall briefly consider the question of quantum should the defendants be held liable to the plaintiff.
C1. Plaintiff’s background
22. The plaintiff was born on 6 February 1991. He was 26 years old at the time of the Accident, and 31 years old now. In cross-examination, he told the court that he received education up to the bachelor level in Pakistan and majored in Urdu in university. He is married and has lived in Hong Kong since around 2015.
C2. Expert’s medical evidence
23. The opinions provided by Dr Ko Put Shui Peter (appointed by the defendants) and Dr Wong Chin Hong (appointed by the plaintiff) have been summarised in the defendants’ Closing Submissions as follows.
Dr Ko (appointed by the defendants)
Dr Wong (appointed by the plaintiff)
Diagnosis
Uncomplicated soft tissue injury low back sprain injury.
Soft tissue sprain/ contusion injury to his lower back.
Treatment progress and present condition
Physical examination showed gross features of exaggeration and magnification with likelihood and high suspicion of feigning and faking of signs (to be elaborated below).
“While it is not possible to predict when his present stage would [have] certainly occurred in any event, it is estimated that Mr Haider would have been able to continue working as construction site worker for another 15 to 20 years.”
Treatment and investigation received
Investigation, treatment and rehabilitation received up to about 6 to 8 months should have been adequate and reasonable.
All treatments rendered to Mr Haider for his low back injury were appropriate and adequate.
Further treatment and investigation
The plaintiff should have reached maximal medical improvement and static condition by around 6 to 8 months after the alleged accident, particularly, when MRI was performed and confirmed no significant anatomic, pathological, or organic lesion.
The plaintiff is considered to have achieved the state of maximal medical improvement at the time of the joint assessment.
Sick leave period
Up to 6 to 8 months after the occurrence of the alleged accident.
All intermittent sick leave granted between 19 January 2018 to 13 August 2019.
Activities of daily living
The plaintiff should be able to manage.
The plaintiff should not have major difficulties.
Sports and recreational activities
Should be able to enjoy pre-accident recreational cricket without significant impairment.
Would be able to participate in sports activities at recreational level.
Resumption of duty
The plaintiff should have been able to resume his pre-accident job as a general worker in construction sites without significant impairment of his work efficiency and effectiveness by around 6 to 8 months after the alleged accident.
In view of the MRE findings, the plaintiff is at risk of further worsening of his low back condition should he return to manual labour work at construction site. He would be better suited for alternative jobs which do not demand heavy lifting/ exertion, such as shop assistant, petty office assistant or watchman.
Assessment of any permanent impairment and disability
Whole person impairment: 1%
Whole person impairment: 5%
Assessment by other specialists
Not necessary.
Not necessary.
24. Dr Ko opined that the plaintiff only sustained an uncomplicated low back sprain injury, and physical examination showed gross features of exaggeration and magnification with likelihood and high suspicion of feigning and faking of signs. He set out his reasons for arriving at this opinion as follows:
“ - He walked with normal gait without walking aids. But, he cannot perform single leg standing on left side and right side with mild and moderate unsteadiness respectively which is physically and medically impossible.
He claims his sitting tolerance is only 15 minutes and he needs to get up and stretching [sic] for about 5 minutes but during the interview, he could sit continuously more than 45-50 minutes talking and discussing fluently and responding in a prompt manner.
Positive Waddell’s simulation sign signifying certain degree of inorganic elements.
On lying supine, straight leg raising 45° (left), 30° (right), limited by low back pain with negative sciatic features.
Paradoxically on sitting flip test, 80° (left), 70° (right).
On lying supine, hip flexion 60° (left), 20° (right), he has very severely increase in low back pain and expressed distress and great difficulty. But while sitting, he can easily at leisure with hip and knee flexion more than 90° - 100° without difficulty or complaint.
On lying prone, knee flexion 40° (right), 30° (left), he also complains of significant increase in low back pain, distress and difficulty. He cannot proceed. This is also paradoxical. It is pseudo sign and representing features of exaggeration, or even feigning and faking.
His complaint of numbness in right whole lower limb with distribution falls into no anatomic or dermatomal distribution and does not have any corresponding features from the MRI. This should be considered as non-organic distribution and complaints.”
C3. PSLA
25. I agree that in light of the minor nature of the plaintiff’s back sprain injury, the award of PSLA should be around $80,000 . The court has taken the following authorities into account:
(1) In Wong Chun Kin v Caritas-Hong Kong [2019] HKDC 556 , the plaintiff claimed that he was shoved by a mentally handicapped person, causing him to lose balance and bump into a table or object nearby (§7). Examination showed tenderness over his left lower back and he was diagnosed of sprain back (§§65, 66). He had follow-up consultation at various out-patient clinics and physiotherapy (§§67, 68). PSLA was awarded at $80,000.
(2) Yip Kwok Shing v Fung Chau Tim, DCPI 2627/2015 (unrep, 26/06/2017)
The plaintiff sustained soft tissue sprain injuries to his back upon falling off a chair of about 2 feet. PSLA was awarded at $60,000.
(3) Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited, HCPI 473/2006 (unrep, 6/06/2007).
The plaintiff was employed by the defendant as a machinery maintenance technician. He was injured in the course of employment when he fell from a height of about six to seven feet, landing on the ground. He suffered from constant lower back pain, ant-biting feeling and pain episodes in both legs. PSLA was awarded at $75,000. (Award for PSLA affirmed on appeal in CACV 208/2007)
(4) Tsang Chung Ming v Caritas-Hong Kong (supra)
The plaintiff allegedly suffered an accident when he took out a container filled with steamed rice (§12). The agreed diagnosis was that the plaintiff had a low back sprain not affecting his lumbar spine. The agreed prognosis was good, and it was also agreed by the experts that he could return to his pre-accident job (§44). PSLA was awarded at $100,000 (§50).
26. The court has also taken into consideration the following matters in determining the award of PSLA:
(1) The plaintiff was often evasive in answering questions during cross-examination, or had a tendency to change his evidence from time to time. He was also exaggerating as to the mode of the Accident, the weight and built of the electric drill in question, and his injuries sustained upon the Accident (his current version of event as to having no feelings at all in his lower body and being “like unconscious” immediately after the Accident is simply not supported by the available contemporaneous medical evidence, which showed that he was fully conscious at all times, suffered from no neurological deficit, and suffered only a minor back sprain injury).
(2) The general tenor of his testimony given in court would be in line with Dr Ko’s findings that the plaintiff had exaggerated his injuries and was feigning some of his symptoms. As set out above, Dr Ko had set out in detail how some of the plaintiff’s complaints were simply medically inexplicable or impossible, or “paradoxical”. Dr Ko also explained that even his pre-existing degenerative condition was minor in nature (“MRI showed no features of any significant nerve root impingement or thecal sac compression but only mild degenerative changes at L5/S1…”).
C4. Pre-trial loss of earnings and MPF
27. As mentioned above, after the Accident and from February until around 18 May 2018, the plaintiff actually returned to work for the defendants, and for the first 5 (almost 6) months after the date of the Accident (19 January 2018), he was only granted 6 days of sick leave.
28. For the 12 months prior to the Accident, the plaintiff’s average monthly income was $19,759.70. From February to May 2018, his income from his employment with the 1st defendant was no less than $86,564.20.
29. Assuming that the plaintiff ought to have been entitled to around 7 months of sick leave (in the light of Dr Ko’s opinion that he ought to have been entitled to around 6 to 8 months of sick leave, and despite the fact that he was actually only granted around 14 days of sick leave during this 7-month period), the plaintiff’s loss of income during this reasonable sick leave period can be calculated as follows:
$19,759.70 x 7 months - $86,564.20 = $51,753.70
30. His loss of MPF during this period can be calculated as follows:
$51,753.70 x 5% = $2,587.70
C5. Post-trial loss of earnings and MPF
31. In the light of the foregoing analysis regarding the plaintiff’s pre-trial loss of earnings, he should not be entitled to any damages for post-trial loss of earnings.
C6. Loss of earning capacity
32. This head of damages is usually awarded to reflect the risk that the plaintiff may face in the job market by reason of the injury sustained, for example, the added risk of suffering longer periods of unemployment between jobs due to his physical condition.
33. In line with Dr Ko’s medical opinion, the plaintiff should be able to return to work in his pre-accident employment latest by 8 months after the Accident. Therefore, he suffers no loss of earning capacity.
C7. Special damages
34. The defendants agree to an award of $4,000 for medical expenses and $1,000 for travelling expenses (ie total $5,000 ).
C8. Employees’ compensation
35. The plaintiff shall give credit for the sum of HK$180,000 being employees’ compensation already received by him.
D. CONCLUSION AND DISPOSITION
36. Failing on liability, I would dismiss the plaintiff’s claim against the defendants in this action.
37. I see no reason why costs should not follow the event. Accordingly, I order that the plaintiff do pay the defendants their costs of this action (including all costs reserved, if any). Such costs shall be taxed, if not agreed, on the party-and-party basis.
38. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.
39. I further order that the plaintiff’s own costs up to 30 December 2020 be taxed in accordance with the Legal Aid Regulations.
(Wilson Chan)
The plaintiff appeared in person
Ms Ann Lui, instructed by Messrs Norton Rose Fulbright Hong Kong, for the 1st and 2nd defendants