YIP LEUNG HOI v. TIN WO ENGINEERING CO LTD AND OTHERS

HCPI 1026/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1026 OF 2004

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ASSESSMENT OF DAMAGES

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Introduction

1. By the Writ of Summons filed on 11 November 2004, the Plaintiff claimed against the Defendants for damages for personal injury, loss and damages arising out of the negligence and/or breaches of contract and/or breaches of statutory duty and/or breaches of common law duty of care of the Defendants on 15 November 2001 (“the 1st Accident”) and 4 February 2002 (“the 2nd Accident”) respectively.

2. By the consent order dated 12 July 2005, judgment on liability in respect of the 1st Accident was entered in favour of the Plaintiff against the 1st  and 2nd Defendants with damages to be assessed.  Judgment on liability in respect of the 2nd Accident was also entered in favour of the Plaintiff against the 1st and 3rd Defendants with damages to be assessed.

3. By another consent order dated 27 March 2006, the Plaintiff settled his claim with the 1st and 2nd Defendants in respect of the 1st Accident.

4. This is the assessment of damages under the 2nd Accident.

Background

The 1st Accident

5. While the Plaintiff was working, as a master steel bender, at a construction site on 15 November 2001, the Plaintiff lost his balance and his left knee was injured.

6. The Plaintiff did not seek medical treatment until 22 November 2001 when he consulted Dr. Chiu Kin Man.  Dr. Chiu found that there was left knee swelling due to joint effusion.  There was no external wound or bruises.  The Plaintiff could not flex his left knee completely because of the effusion.  Tapping of the effusion from the left knee was performed with about 20 to 30 cc of clear fluid yielded.  The Plaintiff could flex his left knee better after the tapping.

7. The Plaintiff was granted sick leave for 3 days from 22 November 2001 to 24 November 2001.  He resumed work on 25 November 2001.  However, he felt pain again on 27 November 2001 and attended the Accident and Emergency Department of the Queen Mary Hospital for treatment.  Physical examination shown swelling and decrease flexion over his left knee.  X-ray shown intra-articular fragment in the left knee.

8. The Plaintiff was referred to the Department of Orthopaedic for further treatment and was granted sick leave up to 10 December 2001.

9. The Plaintiff attended follow up treatment on 10 December 2001.  The orthopaedic specialist arranged an MRI examination on 5 February 2002.  The Plaintiff returned to work on 14 December 2001. The wages record shown that the Plaintiff worked almost everyday thereafter (except 31 January 2001) until he encountered the 2^nd Accident.

The 2nd Accident

10. The Plaintiff sustained another injury on 4 February 2002.  He was sent to the Accident and Emergency Department of Princess Margaret Hospital for treatment.  The doctor found that there was tenderness and decrease in range of movement of left shoulder.  There were tenderness and swelling over both knees without loss of range of movement.  Left shoulder and both knees showed no abnormality under X-ray.  The Plaintiff was discharged and sick leave was granted up to 8 February 2002.

11. On 5 February, 2002, the Plaintiff received MRI examination as scheduled.  It shown mild left knee effusion, small medial meniscus tear and swollen anterior cruciate ligament at his left knee joint.

12. The Plaintiff attended further out-patient treatments because of persistent bilateral knee pain.

13. The Plaintiff received 23 sessions of physiotherapy treatment commencing 15 February 2002.  The last treatment was on 5 July 2002.  Thereafter, the Plaintiff received occupational therapy as from 13 July 2002.  His condition became static after 3 months’ training.  The Plaintiff had a slip and fall on 7 November 2003 and suffered from an avulsion fracture of right distal tibia.  He resumed occupational therapy treatment on 6 January 2004.  The Plaintiff was granted sick leave until 9 July 2004.

Medical Reports

14. In his report dated 16 February 2004, Mr. Fung, the occupational therapist of David Trench Rehabilitation Centre, described the then conditions of the Plaintiff as:

(i)        the Plaintiff walked with a walking stick with a limping gait; his walking tolerance without walking stick was 3 minutes and with stick was 11 minutes;

(ii)       the Plaintiff had difficult in walking up and down stairs/slope due to persistent bilateral knee pain especially on the left side; and

(iii)      the Plaintiff could not squat.

Mr. Fung opined that the Plaintiff was unable to cope with his pre-accident job which required the following physical demand:

(a) manual lifting of steel bars

- share about 80lbs in lifting and carrying frequently;

- at floor to shoulder level 

(b) bending, tying and fixing steel bars for concrete structure elements

- continuous standing of 4 hours;

- continuous squatting of about half an hour;

- climbing up and down;

- bilateral pulling and pushing of steel bar against bar bending machine of force about 60 – 80 lbs

15. In the joint medical report dated 26 March 2004 of Dr. Au Ka Kau and Dr. Danny Tsoi (“the Report”), the doctors noted that during the medical examination held on 27 February 2004, the Plaintiff complained:

(i) Persistent bilateral knee pain; such pain is pulsatile in character and is fluctuating in intensity.  The left knee is more severe than the right side.  There is resting pain and the pain increased with standing and walking.

(ii) Right ankle pain on weight bearing since right ankle sprain injury in late November 2003.

(iii) Persistent left shoulder pain which is more severe than the knee pain.  It disturbs his sleep.

(iv) Numbness over the whole of left upper limb and ulnar half of right and index fingers.

(v) On and off neck pain for about a year.  It increases with movement.

(vi) Left side headache.

(vii) Pain over left scapular and upper back.

(viii) Have to use stick for ambulation due to knee pain.

(ix) Walking tolerance is 10 minutes with the aid of a stick.

(x) Cannot squat.

(xi) Cannot carry weights.

(xii) Cannot climb stairs.

16. The doctors found, inter alia, that there were limitation of neck movement, left shoulder joint movement and left knee joints movement.

17. Both doctors are of the view that

(i) the neck pain, left upper limb numbness and sensory impairment are probably unrelated to the accidents; and

(ii) the left knee pain may improve with arthroscopic excision of the torn medial meniscus.

18. Dr. Au, the Plaintiff’s expert, assessed the loss of earning capacity at 30%.  He apportioned 1% loss to the 1st Accident and 29% to the 2nd Accident.  He opined that the Plaintiff is not fit to return to his pre-accident job.

19. Dr. Tsoi, the Defendants’ expert, was of the view that the injury sustained in the 1st Accident was not a mild one as it was associated with joint effusion.  Further, according to the orthopaedic clinic follow up notes dated 10 December 2001, the positive Lachmann and Anterior Drawer’s test suggested anterior cruciate ligament (“ACL”) injury.  Thus, MRI examination was arranged.

20. The MRI examination conducted one day after the 2nd Accident revealed swelling of ACL. Dr. Tsoi regarded that as suggestion of  previous trauma.  He opined that for an immediate tear, the situation should be rupture of the ligament fibres.  Dr. Au noted that partial tear of ACL can show up as swelling only.

21. Dr. Tsoi was of the opinion that the left shoulder recovered completely soon after the 2nd Accident since there was only one noted complaint in the medical notes dated 4 February 2002 and not thereafter.  It was not until 30 September 2002 (7 months after the accident) that the Plaintiff complained of left shoulder and neck pain again.

22. Further, the Plaintiff recovered very satisfactorily as the orthopaedic notes dated 11 February 2002 reported that the Plaintiff described that he could walk for 20 minutes and full weight bearing unaided for 20 minutes.  Having examined the X-ray films taken on 25 March 2002, Dr. Tsoi noted there were signs of pre-existing natural degeneration at the knees.  On this, Dr. Au opined that the accidents had aggravated the asymptomatic degenerative changes and rendered the Plaintiff’s knee joint to become painful.

23. Dr. Tsoi found that the limitation of left knee motion was too much to be explained by any orthopaedic trauma.  Further, there was also no orthopaedic explanation for the limping gait and requirement of a stick to assist walking.  He opined that the Plaintiff should be able to resume his pre-accident job.

The Evidence

24. The Plaintiff was the only witness for his case.  He verified his witness statements.  He told the Court that his physical/medical condition remained the same since after the filing of the Revised Statement of Damages dated 15 March 2006. He further explained the reasons why he could not return to his pre-accident job.

25. 3 sets of surveillance video records were produced by the Defence as evidence (exhibit D1 to D3).  They were played in Court.

26. The 1st set was footages taken on 21 April 2004, 22 April 2004 and 26 April 2004 respectively (2 months after the joint examination).  For 21 April 2004, it was taken at around 0800 hours.  The Plaintiff walked with the aid of a walking stick with a slight limping gait.  It was more apparent when he walked up the slope.  For 22 April 2004, the Plaintiff walked in a normal gait without any aid from the western district to the University of Hong Kong.  He walked up staircase without any aid and with no apparent difficulty.  For 26 April 2004, it was taken at around 1400 hours.  The Plaintiff walked from the western district to the University of Hong Kong.  On the way, the Plaintiff climbed fleets of staircase without difficulty and without any aid.  The Plaintiff further walked up to the Peak via a country park where he did leg stretching exercise by resting one of his left on a horizontal bar at his shoulder level, bent his upper body towards the raised leg.  He also hung himself on flying rings.  The entire trip to and back from the peak lasted for around 3 hours.

27. The 2nd set was footages taken on 18 January 2007.  The part taken in the morning at around 0745 hours shown that the Plaintiff walked with a normal gait from the Hong Kong Bank at Central, via Cheung Kong Centre, to Garden Road and up the slope to the Central Government Offices (East Wing) where he worked.  The second part was taken at around 1800 hours.  The Plaintiff pushed an iron cart full of garbage from the said Government Offices, down the slope along Garden Road and via Saint John’s Cathedral, to somewhere which looked like a basement carpark.  Thereafter he returned to the said Government offices via Battery Path.

28. The 3rd set was footages taken on 25 January 2007 (the 1st day of this assessment hearing) at around 0850 hours.  The Plaintiff walked with a light limping gait at near the High Court Building.

29. Mr. Au Yeung Sing was called by the Defence as a witness.  In his view, a Mr. Fong Ka Wo did similar type of job like the Plaintiff and earned wages similar to the Plaintiff.

Pain, Suffering and Loss of Amenities

30. The Plaintiff was born on 20 April 1955.  He was almost 47 at the time of the 2nd Accident.  He is around 52 at the time of this assessment.  He worked as a master steel bender before the accident and earned a daily wages of $1,070.  The Plaintiff claimed for HK$400,000 under this head.  Ms. Lee, Counsel for the Defendant, submitted that HK$100,000 would be an appropriate award.  However, it must be discounted for the pre-existing condition as set out in Dr. Tsoi’s report and thus HK$70,000 should be awarded.  She relied on the following authorities:

(i)        Yu Man Chui v Chow Chi Fun (HCA 1981/2518, 13 August 1982, Mr. Registrar Barrington-Jones)

(ii)       Cheng Ping Nam v Choi Kwai Kun (Butterworths’ Hong Kong Personal Injuries Service v [3501], HCA 3926/1980, 11 May 1981, Mr. Commissioner Barnes)

(iii)      Keeling v The Hebe Haven Yacht Club Ltd (DCPI 579/2004, [2005] 4 HKC 277); and

(iv)      Cheng Chi Ming v Li Chau Wan and another (HCPI 1028/2002, 8 July 2005, Suffiad J, [2005] HKCU 896).

31. Two medical reports are important here concerning the injury sustained by the Plaintiff in the 2nd Accident.  The report of Dr. Tsang Tat Chi of Queen Mary Hospital dated 31 January 2004 stated that when the Plaintiff was examined on 27 November 2001 (12 days after the 1st Accident), there was swelling and decreased flexion over his left knee and that X ray reports shown intra-articular fragment in left knee.  The report of Dr. Ng Kwok Hang of Princess Margaret Hospital dated 9 September 2003 stated that X ray taken on 4 February 2002  shown no abnormality at left shoulder and the knees.  I am therefore of the view that the problem of intra-articular fragment was no longer a live issue when the 2nd Accident happened.

32. Dr. Au and Dr. Tsoi had different views on the cause of the torn medial meniscus and anterior cruciate ligament injury.  Since the Plaintiff returned to work the next day after the 1st Accident, worked for another 5 days without receiving any proper medical treatment until 22 November 2001 and kept on to work from 14 December 2001,  I tend to accept the view of Dr. Au and I find that the Plaintiff sustained the said torn and injury in the 2nd Accident. Otherwise, the Plaintiff would not be in the position to return to his job as aforesaid.

33. Dr. Tsoi noted that the Plaintiff complained about left shoulder pain on 4 February 2002 but it was not mentioned again anymore in any medical notes until 30 September 2002.  While there was finding that the Plaintiff suffered from left shoulder joint movement limitation and that the motor power of the left shoulder was grade 3 and motor power of left elbow and left wrist in all planes was grade 4, there was no evidence or any discussion in the Report as to the cause of the shoulder pain in medical sense.  The Plaintiff did explain under cross-examination that he complained about left shoulder pain from time to time.  Nevertheless, the doctors who treated him replied that they would treat the knees first before treating the shoulder.

34. The footages taken on 26 April 2004 are important here.  The Plaintiff was capable of hanging himself up in the air with the flying rings.  He was around 180 lbs as noted in the Report.  It clearly demonstrated that the Plaintiff can carry heavy weight with his arms. On this, the Plaintiff explained, under cross-examination, that he was advised by the physiotherapist to do exercise to strengthen his body although such exercise was painful.

35. I do not accept that notwithstanding complaints were made by the Plaintiff, all the doctors who treated the Plaintiff would have failed to document the complaint.  The explanation that the shoulder injury would be treated after the recovery of the knees is ridiculous.  If the shoulder pain is genuine, it is difficult to understand why Dr. Au would fail to point out the cause of such suffering.  Further, to say the least, the Plaintiff was capable to support his body weight at 180 lbs by his arms by 26 April 2004. I do not accept the Plaintiff can do that if he really suffered such serious pain as he alleged.  For the reasons aforesaid, it is my finding that while the Plaintiff may have sustained injury at his left shoulder, it was fully recovered soon after the 2nd Accident.

36. The surveillance video footages taken in April 2004 shown that the Plaintiff can walk normally without aid for quite some time.  He can walk up staircases without assistance.  Two months earlier in February, Mr. Fung, the occupational therapist, noted that the Plaintiff (i) walked in a limping gait; (ii) walking tolerance was 3 minutes (without stick); (iii) difficulty in walking up/down stairs and slope.  Similar complaints were noted in the joint examination by Dr. Au and Dr. Tsoi also held in February 2004.  I really wonder how the Plaintiff could bring his physical mobility and ability were back to normal within 2 months in the light of the comment of Mr. Fung that the Plaintiff’s “condition became static after three months of training”.  Since the Plaintiff first received occupational therapy treatment in July 2002, it means that his condition became static in October 2002.

37. There is no updated medical report about the physical conditions of the Plaintiff. The latest one is the Report dated March 2004.  I disregarded the supplemental medical report of Dr. Tsoi dated 21 May 2004 as it just contain the comments of the doctor after he had viewed the surveillance video.

38. In the light of the surveillance video and in view of the opinion of Dr. Tsoi, it is my finding that the Plaintiff had grossly exaggerated his knee injury and physical mobility/ability limitation.  It is my finding that, at the least,  by April 2004, the knee injury sustained by the Plaintiff in the 2nd Accident, even if not fully recovered, had ceased to have any material impact or cause any impairment to the Plaintiff.

39. While the doctors noted that there was pre-existing degeneration, there was nothing to explain the seriousness of the same and how the 2nd Accident aggravated the asymptomatic degenerative changes.  Therefore, for the purpose of this assessment, I will disregard the pre-existing degeneration.

40. The Court had, apart from the authorities referred to by Counsel, also considered the follow cases:

(1)       Tsang Yuen Nam v Hung Yun Metalware Co Ltd (HCPI 602/2001, 28 November 2002, Deputy Judge Line) (Front and back cruciate ligament ruptured; in plaster cast for 3 weeks; arthroscopy performed to relieve ligament damage for 2 times; one operation to reconstruct the ligaments; suffered from residual laxity in the anterior cruciate ligament; PSLA $400,000);

(2)       Leung Bon Kau v Lau Kong (HCPI 1455/2000, 26 September 2003, Deputy Judge Barnes) (torn ligaments to the left knee, specifically, the posterior cruciate ligament, lateral ligament complex and attenuated anterior cruciate ligament; admitted to hospital for a number of times; PSLA $250,000); and

(3)       Ku Chiu Chung v Tang Tin Sung (HCPI 288/2001, 20 September 2002, Recorder Wong, SC) (Fracture of left acetabulum proximal tibia and the shaft of the left tibia; dislocation of left hip; torn anterior cruciate ligament of the left knee; torn lateral meniscus of the left knee; PSLA $375,000).

41. In all the circumstances of this case, and in the light of the authorities aforementioned, the reasonable and fair award under this head is $180,000.

Pre-assessment loss of earning

42. It is the Plaintiff’s case that the pre-accident monthly earnings of the Plaintiff is $30,714.  The Plaintiff suffered full loss during the sick leave period and thus he claimed $1,940,000 odd up till 8 July 2004 ($30,714 x 129 + 6/30) x 1.05).

43. After sick leave, the Plaintiff tried to look for a suitable job.  It was not until 1 April 2005 when he secured a cleaner job earning $5,500 per month.  The Plaintiff thus claimed full loss of earning from 9 July 2004 to 31 March 2005 at $280,000 odd ($30,714 x (8 + 23/30) x 1.05).  As from 1 April 2005, the Plaintiff claimed $550,000 odd (($30,714 - $5,500) x 21 x 1.05).  The total is $1,770,000 odd ($940,000 + $280,000 + $550,000).

44. Ms. Lee only accepted sick leave for 9 months and contended that $200,000 is the right figure subject to tax, advance payment, interim payment and discount for pre-existing condition.

45. The first point I have to deal with is the monthly income of the Plaintiff.  On this, there is no dispute that a Mr. Fong Ka Wo, a fellow colleague of the Plaintiff, earned comparable wages like the Plaintiff.  Two other colleagues were mentioned too: So Lun Chai and Wong Kai Ming.  An examination of the wage records for February 2002 shows that the Plaintiff earned a daily wages of $1,070.  Mr. Fong earned the same rate.  Wong’s daily rate was $1,020 while So’s daily rate was $1,040.  From these, it is clear that only Mr. Fong’s wages is relevant for the purpose of this assessment.

46. The wages records of Mr. Fong were not complete.  Since the 1^st Defendant is the owner, and thus should be in possession, of these records, the failure on their part to produce a complete set of records means that the Court is entitled to draw such inference in such a way most favourable to the Plaintiff.

47. It is my finding that Mr. Fong earned the following daily wages:

(1)	From February 2002 to July 2003 (no record for March 2002 to July 2002; September 2002 to January 2003; and March 2003 to July 2003	$1,070
(2)	August 2003 to January 2004 (only record for August 2003 available)	$1,000
(3)	February 2004 to January 2005 (only records for February 2004 and August 2004 available)	$900
(4)	February 2005 till now	$800

48. It is also my finding that the Plaintiff could earn the same rate as Mr. Fong during the relevant periods.

49. In the light of my finding as to the physical conditions of the Plaintiff, the Plaintiff ought to be able to return to his pre-accident by April 2004.  I am therefore of the view that the Plaintiff is entitled to full loss of earnings up to June 2004 giving him 2 months to find a new job.  Ms. Lee adopted 27 working days per month in her calculation.  I shall also adopt the same.  The Plaintiff is therefore entitled to:

(i)	From February 2002 to July 2003 ($1,070 x 27 x 18 months)	$520,020
(ii)	From August 2003 to January 2004 ($1,000 x 27 x 6 months)	$162,000
(iii)	February 2004 to June 2004 ($900 x 27 x 5 months)	$121,500
		$803,520
		========

50. MPF for this period is $23,490 ($30 x 27 x 29 months).

Post trial loss of earnings

51. In the light of my ruling aforesaid, I make no award under this head.

Loss of earning capacity

52. As Dr. Tsoi accepted the Plaintiff has suffered a 2% loss of earning capacity, I make an award of $50,000 under this head.

Special Damages

53. It is agreed at $38,621.20.

Summary

54. The following is a summary of award I make.

		$
(1)	PSLA	180,000.00
(2)	Pre-assessment loss of earnings	803,520.00
(3)	Pre-assessment loss of MPF	23,490.00
(4)	Loss of earning capacity	50,000.00
(5)	Special Damages	38,621.20
		____________
		$1,095,631.20
		===========

55. Credit must be given to the advance payment in the sum of $344,540 and interim payment in the sum of $100,000 totalling $444,540.

Interest

56. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

57. I make an order nisi, to become absolute 14 days from the date of handing down of this judgment, that the Defendant do pay the Plaintiff costs to be taxed if not agreed.  Certificate to Counsel.