TAM FU YIP FIP v. SINCERE ENGINEERING & TRADING CO LTD

HCPI 473/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 473 OF 2006

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JUDGMENT

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1. Tam Fu Yip Fip (“the plaintiff”) was born on 29 September 1962.  At all material times, he was employed by the Sincere Engineering & Trading Company Limited (“the defendant”) as a machinery maintenance technician.  His main duties were to maintain and repair heavy earth moving equipment in which the defendant company traded.

2. On 12 September 2002 the plaintiff was injured in the course of his employment (“the accident”).  On the day of the accident, a large dredger was parked in an open-top container at the premises where the plaintiff was employed.  Given the size of the dredger, it was not possible for the plaintiff to enter the cabin other than by climbing up the side of the open-top container using a ladder and from there climb into the driver’s seat.  The plaintiff placed the ladder alongside the container and climbed to the top.  He then slipped and fell to the ground.  He fell approximately six or seven feet landing on his leg and hip.

3. After the accident he said he could not stand up immediately so he took a break and, a little later, with the assistance of one of his colleagues, he was taken to a nearby bonesetter for medical treatment.  Subsequently he attended the Kei Kin Consolidated Medical Centre Yuen Long.  He was X-rayed and provided with medication and recommended to attend for physiotherapy.

4. Since the date of the accident the plaintiff has not returned to his former employment.  In the Revised Statement of Damages dated 14 March 2007 the plaintiff claims a total of $2,346,340 under the following heads of damages :

(i)      pain, suffering and loss of amenities (PSLA);

(ii)      pre-trial loss of earnings and mandatory provident fund contributions;

(iii)     post-trial loss of earnings;

(iv)     loss of earning capacity; and

(v)     special damages.

5. Liability is not in issue and the defendant accepts that the plaintiff was injured in the course of his employment and that there was a breach of a duty of care owed by the defendant to the plaintiff.

6. It is the defendant’s case that the plaintiff suffered a minor back sprain as he fell from the ladder and that his subsequent failure to return to his previous employment, or for that matter, any employment, has nothing to do with any injury suffered on the occasion of the accident.

7. At the time of the accident the plaintiff’s monthly income was $14,300.  The plaintiff was granted sick leave as follows :

(a)        from 13 September 2002 to 14 November 2003; and

(b)       from 20 January 2004 to 18 May 2005;

a totally of 913 days.

8. Pursuant to the Employees’ Compensation Ordinance, Cap.282, the plaintiff has received an advance payment of $262,191.  It is agreed that the plaintiff must give credit for that payment in these proceedings.

9. The plaintiff first consulted an Orthopaedic Surgeon Dr Poon Kai Min in October 2002.  His complaints then were that he had pain over the lumbar portion of his back and a radiating pain down his legs.  He also complained of a “weakness sensation” in his lower limbs.  He was, at the time, diagnosed as suffering from “back injury”.  He was treated conservatively with medication and in November 2002, he started regular physiotherapy treatment.  In January 2003, a magnetic resonance imaging scan (“MRI”) revealed that the plaintiff had prolapsed intervertebral discs at lumbar 4/5 and lumbar 5/S1 levels.  It was Dr Poon’s opinion at that time that the severity of that prolapse did not require surgery.

10. In June 2004, the plaintiff was referred to the Department of Orthopaedics & Traumatology at the Tuen Mun Hospital Dr Chak Hing Chung, Eric reported that on presentation he complained of bilateral lower limb numbness and weakness, back pain and tenderness at the lower lumbar region and what he described as “non-specific weakness and numbness”.  An X-ray of his lumbar spine revealed nothing remarkable and an MRI of the lumbar spine showed a small posterior herniation with mild encroachment on the left S1 nerve root.  Additional tests performed on 31 August 2004 showed no evidence of radiculopathy which is to be expected if the encroachment of the nerve root was of significance.  The diagnosis again was a prolapsed lumbar intervertebral disc.

11. The above reports were made available to Dr Au Ka Kau and Dr Chun Siu Yeung, who were instructed by the plaintiff’s and defendant’s solicitors to conduct a joint examination and prepare a joint report for the purpose of these proceedings.  That examination took place on 13 March 2006.  In addition to the medical reports hereinbefore referred to, they had provided to them X-ray films and MRI films.

12. In the course of their examination, Mr Tam told them that he had :

“... worked as a mechanic for more than ten years.  He repaired and maintained excavators and bulldozers.  He worked in various positions including standing and squatting.  He needed to handle tools for fastening bolts and sockets, and occasionally heavy objects like battery.  He worked eight hours a day, and six days a week.”

He told them that he had not returned to work after the fall in September 2002 because he needed a stick to walk and he could not stand or walk for prolonged periods.

13. At the time of the joint examination, Mr Tam complained of and I quote, the report :

“(i)       Lower back pain which is there twenty-four hours a day except when he is asleep.  The pain can be stabbing or cutting in character and it improves with application of the ‘physiotherapy machine’.  The pain may increase spontaneously.

(ii)        Persistent ‘ant-biting’ feeling and spontaneous pain episodes over both legs from knees downward.  These symptoms started after he regains his lower leg feeling two months after the accident.  The pain was twisting and piercing in character, and there were one hundred episodes per day and each episode lasts two to ten minutes each time.

(iii)       Episodic lower limb weakness, especially on the left side, with walking.  There were four to five episodes of such weakness each week.

(iv)       Both leg numbness which is particularly severe over his left leg.

(v)        Urinary and bowel incontinence since two months after the accident.

(vi)       Need to ambulate with a stick for outdoors one year after the injury.”

14. The joint examination of Mr Tam revealed tenderness over the back, restricted movement in all directions combined with lower back pain, back pain when he rotated his shoulders, back pain when swinging his arms.

15. Given that the MRI investigation revealed some compression on the nerve roots, tests were conducted which could verify or discount that as a source of the pain complained of.  These tests did not support the plaintiff’s claims.  In addition, there was as Dr Au noted “no evidence of radiculopathy”.

16. Dr Au, in the course of the report, said this :

“In spite of the treatment received he has residual back pain and bilateral leg pain; these may indicate nerve root irritation.”

This is the plaintiff’s case at its highest and is dependent upon the assumption that there is in fact pain.  I note that Dr Au does not attribute the assertion that he has back pain to the accident.

17. Both Drs Au and Chun observed that there were a number of non-organic signs in the plaintiff’s presentation.  That is to say that his complaints were inconsistent one with the other and with objective criteria.  There were, in fact, a series of tests performed to establish whether or not the complaints made were genuine.  Dr Au for the plaintiff said this :

“During our evaluation there were several non-organic signs :

(i)         The pinch test was positive.

(ii)        Flip test was positive.

(iii)       Downward pressure over his skull caused increase in back pain.

(iv)       Passive rotation of shoulder and pelvis in same plane caused increase in back pain.

(v)        Sensory deficit not confined to distribution of a specific nerve root.

(vi)       He was not exerting himself while the motor power of his legs was tested.

(vii)      Swinging of arms on both side caused increase in numbness of both legs.

These non-organic signs represent body language.  Mr. Tam was trying to express that his back was still significantly painful.  Some evaluators would interpret these as hallmark of symptom magnification if there were more than three positive signs.” [my emphasis]

18. In the instant case, there were seven such positive signs.  Dr Au does not commit himself beyond the above observation, notwithstanding that all of the tests performed indicated that the disc herniation revealed in the MRI scan was (a) not caused by the accident and (b) was not the source of the alleged pain.  Whilst accepting that “some evaluators” (and by this I assume him to mean orthopaedic surgeons) would interpret these as “symptom magnification” which in laymen’s terms must mean “symptom exaggeration”.  He is content to leave the matter in the air.  He does not give an opinion.  He does not say whether he thinks that the plaintiff is exaggerating or indeed fabricating the pain.

19. Dr Chun for his part was clear and unambiguous.  He was of the opinion that the plaintiff was grossly exaggerating his symptoms.  He said that a number of the symptoms described by the plaintiff could not be verified or reconciled.  He was of the opinion that the fact that the plaintiff walked with a stick was entirely inappropriate in the circumstances and suggested an exaggeration of his disability.  He gave the following examples in addition to those referred to in paragraph 16 above :

“He complained of persistent ant-bite feeling and pain over both legs from knee down.  He said that the symptom started when he regained sensation 2 months after the fall.  Firstly there was no report from his attending doctors that there was lost of sensation on both legs.  Secondly the MRI features could not explain his bilateral loss of sensation.  Thirdly the pattern of loss of sensation if genuine would involve many levels of nerve roots compromise.  Fourthly, his anti-bite pain and feeling below the knee on both leg does not conform to normal neuro-anatomy and certainly cannot be verified on the MRI and the nerve conduction test and EMG normal finding.

He complained of urinary and bowel incontinence since two months after the injury.  Firstly there was no report from his attending doctors of the incontinence.  Secondly if injury to nerve occurred immediate symptoms should appear and not 2 months later.  Thirdly, the MRI and nerve conduction test & EMG did not give a support of this complaint on neurological basis.  Fourthly objective findings noted at this joint examination showed good muscles of the lower limb, normal tendon reflexes, speak against such symptoms.

The need to walk with a stick is also inappropriate in this case.  When one requires to walk with a stick, either one had serious spinal pathology or with local pathology of the lower limbs.  He used the stick on his left hand and his complaints on left lower limb were more severe than right side.  In such case, if there were genuine weakness or pain more on left lower limb, one should use the stick on right hand and the body weight inclined more towards the right side so that the stress on left lower limb would be reduced.  The left hand stick walking in this case was inappropriate and again suggested exaggeration of his disability.

Besides the non-organic signs noted by Dr. Au on paragraph 8.5 above, his slow and cautious walk, the diffuse tenderness on gentle touch the straight leg raising test discrepancy on supine and sitting, the glove and stocking type of 50% decreased sensation on right leg and 70% decreased on left leg were all not appropriate to the falling injury without objective evidence of neural compromise.”

20. The joint medical report of Drs Au and Chun effectively rules out the possibility that the plaintiff’s pre-existing asymptomatic disc herniation has been in anyway aggravated or rendered symptomatic by reason of the accident.

21. Dr Chun said in short the plaintiff had a fall, which did not result in any major trauma, fracture or dislocation.  In his opinion, he suffered a relatively minor soft tissue injury.

22. Dr Au for his part did not disagree with these conclusions.  It is somewhat remarkable that in a joint report of this type, Dr Au stated as did Dr Chun the basis upon which “others might conclude that the plaintiff was grossly exaggerating his symptoms” but yet did not thereafter venture an opinion.

23. Neither Dr Au nor Dr Chun was called to give evidence in the proceedings before me.  I am left therefore to evaluate the state of the plaintiff’s health entirely on the reports.  Given Dr Au’s omission (which I must assume is intentional) not to venture an opinion as to the possibility of exaggeration, I am left only with Dr Chun’s conclusion which I accept. 

24. Apart from the medical evidence I must assess the plaintiff’s own evidence as it is he who describes the nature and severity of the pain.  In this regard I was greatly assisted by surveillance films taken of the plaintiff.  These films were taken on two separate days.  Both days being when the plaintiff was attending medical practitioners.  The most notable of these was taken on 13 March 2006 when the plaintiff attended the joint medical examination conducted by Drs Au and Chun.  The plaintiff is seen throughout with a walking stick in his hand, but he does not use it as an aid.  At one stage, he is seen to be walking up and then down a lengthy flight of stairs at the Lok Ma Chau border checkpoint.  He does not use the handrail and he certainly does not use the walking stick.

25. Wong Kai Tim (“Mr Wong”) was an employee of Take Result Limited, a private investigator engaged on behalf of the defendant to take the surveillance films of the plaintiff.  It was his evidence that he overheard a young woman at the exit to the immigration area ask the plaintiff “why he was carrying the walking stick” to which he replied that he “had a medical appointment that day”.  The plaintiff denied that this was the text of this conversation.  It was his evidence that the women, a stranger to him, had confronted him and said “Are you going to see the doctor today?”, to which he replied “Yes.”  She then said “How come you have to carry the stick?”, to which he replied words to the effect that it was because he had had a fall and he needed to use the stick for support.  Mr Wong was asked if this interpretation of the conversation was possible and he replied that it was not.  He was adamant that the conversation he had overheard was as described in his evidence-in-chief.  I accepted his evidence and rejected the evidence of the plaintiff.  It is clear beyond peradventure that the young woman concerned was waiting for the plaintiff at the immigration exit and was known to him.  It was Mr Wong’s evidence that the plaintiff and this woman shared a taxi as they left the checkpoint.  The clumsy explanation given by the plaintiff in his evidence-in-chief underscores the relevance of the evidence.  The plaintiff was an untruthful witness in this regard.

26. I conclude that his use of the walking stick on that day was intended to exaggerate his complaints.

27. In the final analysis, on the basis of all of the material before me, I am satisfied that the plaintiff suffered, as Dr Chun describes, a minor soft tissue injury in the fall on the day of the accident.  I find as a fact that his pre-existing degenerative back condition was neither caused or exacerbated by the accident and that whatever the source of his present complaints of pain (if there be pain which I doubt very much).  It is not attributable to the fall.

28. I am satisfied, as both doctors advise, that the plaintiff is fully capable of returning to his former employment and has been for some time.  Dr Au applies one caveat, namely that the plaintiff may consider it appropriate to wear a corset and pay attention to proper lifting procedures etc.  All of which are directly referable to his pre-existing condition and not the injury suffered in the fall.  As to the appropriate length of sick leave Dr Au endorses the period up to January 2005, Dr Chun would accept 90 days from the date of the accident to be reasonable.

DAMAGES

Pre-trial loss of earnings

29. The plaintiff has been given sick leave which totals 913 days from 13 September 2002 to 14 November 2003 and from 20 January 2004 to 15 January 2005 (i.e. 913 days or approximately 30 months).

30. The plaintiff therefore claims :

$14,300 x 30 x 1.05 = $450,450.

31. In addition, it is said on his behalf that he was and is from the last date of sick leave to the date of this trial, entitled to a further pre-trial award, on the basis that he was then capable of being employed as a building attendant earning approximately $7,000 per month.

32. The plaintiff therefore claims in addition :

HK$(14,300-7,000) x 23 x 1.05 = $176,295.

33. In both cases the multiplier of 1.05 to account for loss of mandatory provident fund payments.

34. I have found as a fact that the plaintiff is, as Dr Chun observes, grossly exaggerating the injures suffered in September 2002.  I am satisfied that he was fit and able to return to his former employment no later than January 2003.  I would, were it necessary, prefer the opinion of Dr Chun as to the length of sick leave to be allowed.

35. However, I am in the final analysis unable to go behind the periods of sick leave given.  No evidence was adduced to suggest or imply that those who granted to the plaintiff the sick leave did so improperly.  The defendant suggests that I can, on the basis of the material before me, adjust the pre-trial loss of earnings figure to account for the plaintiff’s gross exaggeration of his symptoms.  I disagree.  The findings of gross exaggeration post date the grant of sick leave.  The examination for the joint report was 13 March 2006.  The last date of sick leave was 18 January 2005.

36. There is insufficient evidence for me to revisit the integrity of the granting of sick leave.

37. In Lee Wan Kei v. Hyundai Engineering & Construction Company Limited, HCPI 577/2004, Suffiad J said :

“In this respect, the words of Deputy Judge Saunders in the case of Zheng Biao v. Kwok Wai Lung (HCPI 115/2001) are directly applicable where he said :

‘Mr Zheng was on sick leave from 29 April 1998 to 30 September 2000.  That is a period of two years and five months.  There is no dispute that throughout the whole of that time he was given appropriate sick leave certificates by doctors, and there is no suggestion that those doctors have acted in any way improperly.  While it may well be that a person suffering from the same injuries might have gone back to work earlier, in the absence of any evidence to challenge the validity of the sick leave certificates for the period of two years and five months, upon which Mr Zheng was entitled to rely, I am satisfied that the period of sick leave cannot be challenged.  It is right that both orthopaedic surgeons have said that a shorter period would be appropriate, but neither directly question the validity of sick leave certificates issued.’”

38. I agree with those observations.

39. However, given my conclusions the plaintiff’s claim for pre-trial loss of earnings from 18 January 2005 to date must fail.  The plaintiff was at that time and most probably for a period in advance of that able to resume his former employment.

Loss of earning capacity

40. Given the opinions of both Drs Au and Chun that the plaintiff can return to his former employment and my acceptance of the evidence that he has been able to do so for some time, there will be no award for loss of earning capacity.  I am satisfied that the observations in Moeliker v. Reyrolk & Co. [1977] 1 WLR132 are not appropriate to this plaintiff’s case.  There is to my mind “no substantial or real risk that the plaintiff would lose any future employment by reason of the injury suffered in this accident”.

41. I am satisfied that he has fully recovered from the injury he suffered.  He does not return to work as a matter of choice.

DAMAGES

Pain suffering and loss of amenities (PSLA)

42. This is not an easy task given the degree of exaggeration manifested by the plaintiff.  He suffered a soft tissue injury to the back when he fell from the container.  There is no evidence to support the many, varied and conflicting complaints that he now makes.  He suffers from a pre-existing degenerative back disorder but it is not possible to ascribe to that condition the complaints he now makes.

43. Dr Chun describes the injury suffered in the fall as a “relatively minor one”.  He observed that there was no major trauma.  Dr Au for his part does not quantify the severity of the injury.

44. In all of the circumstances an award of $75,000 is appropriate.

PSLA	$75,000
Pre-trial loss of earnings	$450,450
Post-trial loss of earnings	no award
Loss of earning capacity	no award
Special damages (agreed)	$17,270
Travelling expenses (agreed)	$2,600
Nourishing food (agreed)	$3,000
	$548,320
The plaintiff allows the prepayment of $262,191	($262,191)
	$286,129

45. There will be judgment for the plaintiff in the sum of $286,129 together with interest to be calculated.  In the event that this cannot be agreed there will be liberty to apply.

46. There will be an order nisi that the defendant pay the plaintiff’s costs on the District Court Scale.  If required the plaintiff’s costs to be taxed on Legal Aid Regulations.