SIN FU YAU v. CHEUNG KWOK LEUNG KEITH AND OTHERS

DCPI1081/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1081 OF 2005

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JUDGMENT

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1.  The plaintiff claims against the defendants for damages suffered from an industrial accident.  The 3rd defendant was the main contractor at the Airport Railway, Tung Chung Station, (Phase 3 Development) (District 21), (hereinafter referred to as “the site”) on 4 September 2002.  The 2nd defendant was its subcontractor and the 1st defendant the 2nd defendant’s sub-contractor.

2.  The plaintiff who was the employee of the 1st defendant was a plumber.  He was installing water pipes at the lavatory of the male toilet on the 1st floor of the site with his partner, Mr Wong Fai-hung when the accident took place at around 3.45 pm on 4 September 2002.

Liability

The Accident

3.  It is the plaintiff’s, Mr Sin’s, evidence that he was assigned to pair with Mr Wong Fai-hung by a representative of the 2nd defendant when he joined the 1st defendant to work at the site 17 days before the accident took place.  As Mr Wong was a more experienced worker at the site and a more experienced plumber, Mr Sin followed the instructions of Mr Wong when they were working as a pair.

4.  On the day of the accident, 4 September 2002, it was Mr Sin’s 17th day at the site.  They have been taking turns working on the ladder during those 17 days installing metal pipes at the ceiling for plumbing purposes, they were doing the same on 4 September 2002.  It was Mr Wong’s turn working on the ladder inside the male toilet on the 1st floor while Mr Sin was cutting the metal pipings on the floor outside the toilet.

5.  The lighting and the power source were suddenly cut off at around 3.30 pm that afternoon, and Mr Wong called out to Mr Sin asking him to check the electricity connection socket and cable inside the toilet.  Mr Sin said he went into the toilet to check as told, after checking the cable connection under the ladder and finding that it was intact, he told Mr Wong the power failure was not due to a loose connection.

6.  It was at that stage that a metal pipe that, according to Mr Sin, Mr Wong had been working on, fell and plunged into Mr Sin’s left foot, injuring and fracturing Mr Sin’s left big toe.

7.  Mr Sin claimed that he recognised the metal pipe which struck him was the one that Mr Wong had been installing on the ceiling of the toilet.  He was then taken to the first aid station by Mr Wong and given first aid, he informed the site safety officer, Mr Tang, of the accident but did not mention Wong was working on the ladder.  Later on, he was sent to Tuen Mun Hospital for treatment on the same day.

8.  When being cross-examined on the cause of the accident, Mr Sin admitted he did not tell Mr Tang Ping-kin, the site safety officer, at the first aid station that Mr Wong was working on the ceiling fitting the metal pipe on the ladder when the accident happened because he was not sure if Mr Wong had dropped the pipe by accident or if his head had hit the pipe on the ceiling causing the metal pipe to fall.

9.  He claimed there was no reason for him not to mention it to Mr Yu Ka-shing, the 2nd defendant’s representative, who had given him and Mr Wong the job assignment on the day of the accident, or to the assistant site safety officer who visited him with Mr Yu at his home on 14 September 2002.  He claimed it was the assistant site safety officer who wrote out the accident report at his home.

10.  Mr Sin claimed that he was told to sign on the accident report and he signed on the two-page report without reading it through because he believed it was a mere formality so that he would get his salary.  He claimed that was what he was told.

11.  Mr Sin claimed that the last answer on the second page of the defendants’ statement of the accident report was not there when he signed the report, nor was the declaration above his signature on the second page of the report.  He claimed he would not have signed the report had the last answer been there.  He pointed out that the last answer contained a number of mistakes of facts because: he was not working on the ladder that day; the ladder was not 1½ metres high, but 3 metres high; and he had his wellington boots on when the accident took place.  He claimed the ceiling of the 1st floor male toilet was 4 metres high.

12.  The defendants called no evidence and no witness as to fact.

13.  At cross-examination of Mr Sin, I found Mr Sin to be unshaken on his evidence on the accident.

14.  As the makers of the accident report were not called, I can find no good reasons not to accept the evidence of Mr Sin on how the accident took place.  It is particularly so when Mr Sin was unshaken when vigorously cross-examined on the working routine at the site on the day of the accident and the possible cause of the accident.

15.  I find it inconceivable that any construction worker would have to take off his wellington boots while working at a big construction site with water leaking and electricity cables lying about and that a 1½-metre high ladder should be used to install pipings at a toilet in a public area when the ceiling was 4 metres high.

16.  I find the description in the last answer of the defendants’ report exhibited in Mr Tang Ping-kin’s witness statement, when neither Mr Tang nor the recorder of the statement gave evidence, could not be given much weight.

17.  The defendants’ pleaded defence was that Mr Sin was working alone on the ladder on the day of the accident and that he had misplaced the metal pipe on the ladder which fell on his foot after he descended from it.  I found this to be completely without any factual support as no witness on evidence was called by the defence.

18.  I found the defendants have failed to show Mr Sin had contributed to the accident.  I am satisfied that the defendants have failed to provide a safe working environment, a safe system of work, proper instructions, training and supervision to Mr Sin with proper safety working equipments.  It is clear that, had there been a safe and proper electricity and power supply, there would not have been short circuits causing power failure during working hours.

19.  Had Mr Sin been provided with proper construction site boots rather than a pair of wellington boots which he bought with his own money, the injury to his left foot would not have been as serious.

20.  Therefore, I find the 1st and 2nd defendants to be 100% liable as the employers, and all three defendants liable as occupiers of the site, and they are liable further under regulations 49 and 50 of the Factories and Industrial Undertakings Ordinance and Regulations, and under section 7 of the Occupational Safety and Health Ordinance, Cap. 509, for failing to provide a safe working place and safe system of work, and equip Mr Sin properly at the site on the day of the accident.

Quantum

The Injuries

21.  As a result of the accident, Mr Sin sustained:

(1)     superficial abrasions, swelling, bruises and tenderness over the left 1st metatarsal area;

(2)     decreased range of movement over the left 1st metatarsal phalangeal joint; and

(3)     fracture at the base proximal phalanx of left 1st toe and crack at the base of the distal phalanx.

22.  He was given treatment at the Tuen Mun Hospital and discharged home on the same day.  He returned daily to the hospital for dressings of his wound for 11 days, after which he was given a short leg slab which immobilised his left foot.

23.  He returned to the Accident and Emergency Clinic every four to six days up to 21 November 2002.  He was then referred to the Orthopaedic Outpatient Clinic at his request and was seen by orthopaedic surgeons on 23 December 2002.

24.  From the report of Dr Lau Chi-yuk of the Tuen Mun Hospital, Orthopaedics and Traumatology Department (page 33 of bundle B), Mr Sin’s fracture had healed.  He suffered from tenderness around the 1st proximal interphalangeal joint with limited big toe motion.  He was able to walk for 20 minutes unaided at his first examination on 23 December 2002.  Later, he was sent to occupational therapy for treatment and for work hardening.

25.  Dr Lau reported that his condition had become static in April 2003.  He was then referred for medical assessment by the Medical Assessment Board, (hereinafter referred to as the “MAB”). On 21 May 2003, at the Medical Assessment Board interview, he was assessed to suffer from 1% loss of earning capacity for his left big toe injury resulting in pain.

26.  Mr Sin appealed against the MAB assessment.  The Board reviewed its earlier assessment on 6 October 2004 and assessed the injury to Mr Sin’s left big toe resulting in pain and stiffness to have caused a loss of earning capacity of 2%.  The Board further revised the period of sick leave from the first assessment of 4 September 2002 to 21 May 2003, and extended it to the date of the review on 6 October 2004.

27.  Mr Sin was found when he was interviewed by Dr Au on 4 September 2002 the following: (a) there was a fracture at base of proximal phalanx and crack at base of distal phalanx of left big toe; (b) he still suffered from left foot pain and impaired ambulation ability; (c) squeezing the 1st metatarsal head of the left big toe caused pain; (d) no sign of pseudoatrophy; (e) there was mild varicose vein covering the left leg; (f) the left big toe movement was impaired; (g) the dorsal flexion and plantar flexion power of the left ankle was slightly limited by pain; (h) the extension power of the left big toe was mildly weaker; (i) x-ray examination showed a healed chip fracture of the left 1st proximal phalangeal base with slight mal-union; (j) Mr Sin’s left big toe suffering from pain and stiffness to be compatible with the injury he sustained at the accident; (k) Mr Sin suffered impaired left big toe movement of 7%, which was equivalent to 3% of the whole person impairment; (l) his loss of earning capacity assessed by Dr Au was 4%.

28.  On the date of the accident, Mr Sin complained of pain of the dorsum of the 1st metatarsal after walking for 30 minutes; pain on going downstairs; pain on lateral left ankle and left hip after walking for 30 minutes; pain had disturbed his sleep; and inability to climb scaffolding.  These complaints persisted on the day of the hearing.

29.  Dr Lam Kwong-chin’s medical report of 12 August 2003 was prepared after he had an opportunity to look at the surveillance tape on Mr Sin taken on 15 to 19 July 2003.  Dr Lam’s report was produced by the defendants, and he found the following on page 28 of the bundle, paragraph 6:

“This assessment was done 11 months after the subject injury.  Mr Sin still complained of disabling left foot pain and remained at rest after the injury.  However, the physical examination findings cast great doubt on the validity of his complaints.

7. During the examination, Mr Sin carried an elbow crutch to the examination room, but he carried it on the left side.  If there was a genuine walking difficulty, the natural way should be carrying the walking aid on the contralateral side so as to avoid pressure on the painful side.

8. Despite his claim, he had demonstrated a satisfactory weight-bearing capacity on either side with only slightly less steadiness on the left side.

9. If one had genuine foot pain and was avoiding weight bearing for 11 months, the muscle wasting on the painful limb should be a significant one.  However, no such muscle wasting was found.

10. He complained of rather diffuse tenderness at the foot, maximum over the big toe.  A pain of this distribution and intensity is out of proportion to a well healed fracture.

11. X-rays showed that the fracture had well healed with no residual trace found.  Such well healed fracture should be associated with minimal symptoms.

12. The surveillance videotape was reviewed.  It was about the activities of Mr Sin in July 2003.  In the recording it could be seen that Mr Sin was walking in a normal gait most of the time.  There was very slight limping in part of the recordings.  He was not using any walking aid.  His walking speed was faster than the average pedestrian most of the time.  There was no apparent limitation in his walking tolerance.  He was even able to carry a child on his back.

13. To conclude, his performance in the recording was far better than what he claimed and showed in the interview.”                     

30.  Dr Lam’s prognosis is set out on pages 30 and 31 of the bundle, under paragraph 19:

“The foot condition is a stable one.  The residual pain after an uncomplicated and undisplaced fracture would gradually and spontaneously decrease.  No further specific treatment is required.  Surgery is not indicated.

20. With the present foot condition, Mr Sin should be able to return to work, including that as a plumber in construction site.  He might have some diminished working endurance in the initial few months due to the residual pain, but the pain would gradually decrease and his working capacity would revert to normal.

21. An undisplaced fracture to toe usually takes one to two months for healing.  A suitable sick leave for a manual worker like Mr Sin would be two to four months.  However, if Mr Sin did have physiotherapy treatment up to March 2003 or April 2003, I would consider it fair to endorse the sick leave up to that period.

22. In the Employees Compensation Ordinance, a big toe injury with loss of both phalanges carried 14% loss in earning capacity, while loss of one phalange has 4%.  Mr Sin already had a Medical Assessment Board held on 21 May 2003 and was assessed to have 1% loss.  Based on the expected effect of a well healed and undisplaced big toe fracture on the future working potential of Mr Sin, I agree that this rating of 1% loss is an appropriate one.”

31.  Although Dr Au’s report was prepared later in time, in this original report of  3 December 05, he assessed Mr Sin’s loss of earning capacity at 6%.  After reviewing the two surveillance tapes of 22 July 2003 and 6 January 2004, he amended his assessment on loss of earning capacity of Mr Sin to 4%, but still maintained his endorsement of the granting of the MAB sick leave on 6 October 2004.

32.  The MRI repeatedly requested by Mr Sin was performed at the Tuen Mun Hospital on 5 June 2004 and the doctor’s opinion was as follows: “No definite focal lesion seen except mild irregularity over the base of the proximal phalanx corresponding to previous injury.”

PSLA

33.  The occupational therapist who treated Mr Sin reported on 5 July 2003 that Mr Sin’s big toe was mildly tender and limited in range of motion over interphalangeal joint, and his left ankle muscle power was mildly reduced.  He was found then to have shown: (1) decrease in climbing speed and tolerance due to left foot pain; (2) lifting tolerance to be 30 pounds, carrying tolerance was 23 pounds, tolerance of repetitive crouching was 30 minutes.

34.  Mr Sin complained that he still suffered from pain on his left toe, and he had to rely on painkillers.  However, his claimed condition somehow contradicted with the medical findings of the doctors at the Tuen Mun Hospital Orthopaedic Department.  They reported that he was able to walk for one hour unaided and the pain was controlled with analgesics on 21 April 2004. 

35.  Dr Wong Chee-leong, senior medical officer of the orthopaedic team of Tuen Mun Hospital, had queried if Mr Sin’s complaint was compartment syndrome with ischaemic result or could it be psychosomatic in his report of 11 March 2004.

36.  Mr Ho, counsel for the plaintiff, submitted that an award of $200,000 on PSLA to be appropriate.  He referred me to the case of To Ying Wa v Cargo-Land (Warehouse) Development Ltd, HCPI441/2000, an assessment by Master de Souza on 22 January 2001, where the plaintiff suffered from fractures of the 4th and 5th metatarsals of the right foot and the PSLA awarded was $200,000.

37.  Mr Ho further found support in my brother judge, his Honour Judge L Chan’s judgment in Hau Kit Ho v Starway International Development t/a Tao Heung Super 88, DCPI329/2002, where $200,000 was awarded under PSLA to the plaintiff who suffered from a fracture to the distal fibula in her left ankle.  The fracture was healed after an operation was conducted with screw fixation of the fracture.

38.  In both cases the plaintiffs received operations to secure their fractures and were put on crutches and physiotherapy treatments.  Compared to Mr Sin, their injuries were obviously more serious. 

39.  Mr Chan, counsel for the defendant, referred me to the case of Lee Sze Wai v Law Chi Kin, DCPI44/2201, a judgment of Deputy Judge R Yu in the District Court, who awarded $150,000 under PSLA to the plaintiff who suffered from a fractured 2nd metatarsal on the left foot.  The plaintiff there was put on a short leg cast and, though he was suffering from stiffness of the left ankle, he returned to work within two months.  The two other cases that Mr Chan referred me to where the injuries were obviously not quite similar and the awards were $200,000 and over.

40.  Mr Sin’s injury fell far short of the serious category.  He was not hospitalised or required a painful operation after the accident.  Based on his experience at the time of the accident, it was no doubt painful but nevertheless after viewing the surveillance tapes and comparing his condition to the victims in the cases referred to me, Mr Sin’s loss of amenities cannot be said to be serious.  I would therefore award the sum of $160,000 under this head of PSLA.

Pre-trial loss of earnings

41.  The parties agreed that Mr Sin was earning an average daily wage of $770 working 26 days a month, and his monthly income was $20,020.

42.  The sick leave period, however, is strongly disputed by the defence.  The plaintiff claims two full years and one month of sick leave, relying on the sick leave certificates granted by the Tuen Mun Hospital doctors between 4 September 2002 and 6 October 2004. 

43.  Mr Chan relies on Dr Lam’s medical report, paragraph 21 on page 31 of the bundle, that a suitable sick leave for a manual worker like Mr Sin would be two to four months, and taking into account the physiotherapy treatments, up to March or April 2003.  Mr Chan argued that it would be appropriate to grant seven months of sick leave.  Mr Chan further referred me to the 15 to 19 July 2003 surveillance tapes as evidence of Mr Sin’s full recovery.

44.  Judging from the surveillance tapes of Mr Sin in July 2003 and in late December 2005 to January 2006, there certainly did not seem to be any difference or changes in Mr Sin’s condition between those dates.  He was seen walking in a normal gait with his wife and son in the first tape in the first period in July 2003.  At no time did he rely on the aid of a walking stick, though he was seen carrying one in the later tape in his hand on a visit to the Adventist Hospital on 29 December 2005.  He was not using a stick two years before in the first tape, when he was seen carrying his son on his back on 19 July 2003 walking in a shopping mall.

45.  Dr Chan of Tuen Mun Hospital Orthopaedic Department reported on 10 February 2003 (page 71 of the bundle), that Mr Sin complained of persistent pain when he walked down 19 floors of stairs, by which time he had been put on an occupational therapy course.  Dr Chan found no swelling on his big toe, although he was judged below job demand by the occupational therapist at that stage. 

46.  He was then referred to MAB and assessed eventually on 21 May 2003.  It is most telling to read Dr Wong Chee-leong’s recording on 21 May 2003 at page 64 of the bundle that Mr Sin was able to walk one hour unaided, but he claimed that he was not able to resume previous duties as he was required to climb scaffolding for multiple levels and claimed that his condition had been static for the last few months.  Mr Sin was recorded to have told Dr Wong that he requested for sick leave to keep the job with no pay but required sick leave certificate in support, and Dr Wong’s plan of management recorded was, “Change job”.  The date of this report was the same day as the first MAB assessment.

47.  In the 16 months that followed, Mr Sin returned to the Tuen Mun Hospital for consultation intermittently.  At times he was not given any future appointments but the consultation summaries recorded that he was waiting for a review of the MAB assessment – the 21 May 2003 assessment.

48.  For an unknown reason, the review did not take place until 6 October 2004, over 16 months later.  During this period Mr Sin persistently requested for an MRI which the Tuen Mun doctors told him would not give him any healing effect.  It was finally performed, clearly due to Mr Sin’s persistence, on 5 June 2004.  It did not have much effect on the treatment plan for Mr Sin, but it did delay the MAB review date until some time after the MRI was performed.  This can be seen at page 55, Dr Sha’s consultation summary.

49.  I am satisfied that the reason why the doctors at Tuen Mun Hospital Orthopaedic Department allowed Mr Sin sick leave up to the date of the review by the MAB was again due to Mr Sin’s persistence, he had repeatedly claimed that he could not return to his previous job.

50.  Dr Kwong of that department recorded on 10 August 2004 that Mr Sin had requested for CSSA and that the remark recorded was: “Medical fit for open employment explained.  Open employment signed.”  Yet Dr Kwong again granted sick leave up to 6 October 2004 which was the date of the MAB review.

51.  I have no doubt that, had the doctors at Tuen Mun Hospital not extended the sick leave period to the day of the MAB review, the MAB review would not have endorsed the 25 months’ sick leave.  I am convinced Mr Sin’s injury had healed within six months of the accident and, given the physiotherapy treatments and occupational therapy treatments, his condition became static in April 2003.

52.  I refer to the judgment of Rogers V.P. in the case of Choy Wai Chung v Chun Wo Construction and Engineering Co. Ltd, CACV172/2004  (judgment on 15 July 2005) where he held that sick leave certificates are not binding on the court.  In paragraph 9 of his judgment, he held:

“On this appeal Mr Chan, SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates.  In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which he gave.  It was for the judge to decide whether on the evidence of the plaintiff he had been unable to work and if he had been able to work the extent to which he was able to work.  Obviously in doing so the judge must have regard to the medical evidence.  Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates.  As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.

10. It was a major part of Mr Chan’s argument that the burden of proof of the failure of the plaintiff to mitigate his damages was on the defendant.  No doubt the defendant must show a failure to mitigate.  Nevertheless, it seems to me abundantly clear that if a plaintiff is perfectly capable of working and has taken no steps to try and secure work, he has failed to show any loss arising as a result of his injury.  The loss which has arisen arises from his failure to make any attempt to work.”

Five lines down, still in paragraph 10, Rogers V.P. continued:

“But in the present circumstances it follows inexorably from the findings of fact that the plaintiff was perfectly capable of working and failed to make any attempt to work.  That in itself demonstrates more clearly than any deduction that the court could otherwise make from hypothetical evidence which could be produced by the defendant that the plaintiff has indeed failed to attempt to mitigate his loss.  In my view the plaintiff’s loss of earning from the end of 2000 up until trial is a loss flowing from his own failure to seek work.”

53.  On the same point of sick leave certificates, I was referred to the judgment of Deputy High Court Judge Benjamin Yu in the case of Iou Kau Ih v Wai Kei Geotechnical Engineering Co. Ltd  [2004] HKC 76, and the case of Tam Kwok Man v KMB (1993) Ltd., HCPI755/2001, (judgment on 11 July 2003) Madam Justice Beeson allowed nine months where sick leave certificates of 24 months were issued.

54.  I have no doubt from the evidence of the surveillance tapes, the doctors’ medical reports and recordings that Mr Sin should be able to return to work within nine months of the accident, although Mr Sin produced evidence, no doubt on advice, that he had been seeking employment, the clippings from newspapers and Labour Department website, he did not make any attempt to go for interviews or work at any positions.

55.  I am satisfied that Mr Sin was and should be capable of returning to the job market and start working after nine months of the accident.  I therefore allow a period of nine months, in spite of the 25 months’ sick leave certificates issued by the Tuen Mun Hospital doctors.  It is clear Tuen Mun doctors had repeatedly told Mr Sin that he could seek alternative employment as early as May 2003 and in the months that followed.  Under this head for nine months of loss of earnings at $20,020 p.m., the award comes to $180,180. 

56.  I accept that Mr Sin should be able to work at reduced efficiency because of the inconvenience of his left big toe and the reduced capacity would reflect in his income.  The figure suggested by Mr Ho was $15,000 per month which I find to be reasonable.  I would allow the remaining period up to the day of the trial of 46½ months of pre-trial loss of earnings, after deducting the nine months of sick leave, at a reduced income by deducting $15,000 from $20,020, multiplied by 46½, comes to $233,430, and the loss of pre-trial MPF of 5% comes to $11,671.50.

Loss of Future Earnings

57.  Both Drs Au and Lam are of the opinion that Mr Sin should be able to resume his pre-accident occupation as a plumber at construction sites.  Mr Chan submitted there should be no loss of earnings.  Mr Ho, however, asked for a multiplier of 7 for Mr Sin at the same figure of $20,020 less $15,000 per month as the basis for future loss of earnings.

58.  I agree with Mr Chan, so far as the loss of future earnings is concerned, a multiplier of 5 would be more appropriate because Mr Sin is now 55 years old.  For an outdoor construction site job requiring climbing up scaffoldings, it is unlikely that Mr Sin should be able to work beyond the age of 60.  I would therefore allow a multiplier of 5.  At the rate of a reduction of earnings of $5,020 a month with a multiplier of 5, the loss comes to $301,200 and future loss of MPF of 5% would come to $15,060.

Loss of earnings Capacity

59.  Mr Ho suggested $120,000 as a global figure.  Mr Chan, however, suggested $100,000.  On the basis that a sum of a loss of future earnings to Mr Sin had been awarded, the loss he suffers from job handicap in the market should, in my opinion, be $100,000.

Special Damages

60.  I agree with Mr Chan that, in accepting the plaintiff’s claim of medical expenses of $6,000, travelling allowances $4,000, but with a reduction in tonic food to $2,000.  Because the plaintiff produced no medical opinion in support of the benefit of tonic food on his condition, neither did he produce any receipts for the tonic food he claimed he had been consuming, I would reduce the sum to $2,000, making the total of special damages $12,000.

Summary of Quantum

PSLA	$160,000.00
pre-trial loss of earnings:
4 September 2002 to 4 June 2003	$180,180.00
4 June 2003 to 20 April 2007	$233,430.00
	$413,610.00
MPF at 5%	$20,680.50
future loss of earnings	$301,200.00
Future MPF loss	$15,060.00
Loss of earning capacity	$100,000.00
Special damages	$12,000.00
Deduct the employee	$1,022,550.50
compensation payment	$499,131.83
TOTAL:	$523,418.67

Interest

61.  Interest on general damages at 2% per annum from the date of writ to the date of judgment and thereafter at judgment rate.  Interest on pre-trial loss of earnings and special damages at half judgment rate from the date of accident to the date of judgment, thereafter at judgment rate.

Costs

62.  Costs to the plaintiff to be taxed, if not agreed, with certificate for counsel and plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Representation: