LEE TSZ KIN KEN v. CLIMAX PAPER CONVERTERS LTD

HCPI 504/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.504 OF 2003

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J U D G M E N T

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Liability

1. The plaintiff is a 30-year-old man. He is a registered electrical worker. The plaintiff was employed as a technician by the defendant in about February 1998. On 25 May 2000 the plaintiff was instructed by the defendant to remove some water on the floor of one of the offices. He did so using a Nilfisk-Advance Model UZ878 wet and dry vacuum cleaner ("the Vacuum Cleaner").

2. It is the plaintiff's case that in the course of operating the Vacuum Cleaner he sprained his right thumb. The plaintiff has produced a user manual. Only one aspect is relevant to this claim, namely, that the dump valve lever which has to be manipulated if one wants to empty the Vacuum Cleaner's tank is meant to be operated by foot. The plaintiff's evidence is that he used his hand instead, as a result of which he sprained his thumb.

3. It is the plaintiff's case that on at least four previous occasions he had to empty the tank of the Vacuum Cleaner. On each of those occasions he pressed the lever with his thumb in order to release the rubber stopper. However on the fifth occasion he sprained his thumb.

4. The defendant does not dispute that no training was given to the plaintiff in the operation of the Vacuum Cleaner. The plaintiff was not told that the lever should be operated by foot. There is no indication in the Vacuum Cleaner itself that the lever was to be operated by foot only. In my opinion the defendant owed a duty of care to the plaintiff to explain to the plaintiff that the lever should be operated by foot and not by hand. It is the duty of the employer not only to provide his employee with safe equipment but also to instruct the employee how the equipment may be safely operated.

5. Mr Yau submitted that there was no negligence on the part of the employer or alternatively there was substantial contributory negligence on the part of the plaintiff. I have no reason to say that looking at the Vacuum Cleaner it should have been obvious to all that the lever should be operated by foot. This is not a case where no reasonable employee would have been mistaken about how the lever should be operated. It was certainly not obvious to me. Furthermore, the fact that the defendant used his hand to operate the lever suggests the contrary. There is no indication and that the plaintiff is not otherwise a reasonable employee. Indeed the defendant strikes me as an intelligent person, although I regret to say not a truthful one. As for contributory negligence I am of the opinion that there was no contributory negligence on the part of the plaintiff. The burden of proof of contributory negligence on the part of an employee is a heavy one. And rightly so. On the facts of this case, I see no evidence of any contributory negligence on the part of the plaintiff. Mr Yau also addressed me on causation. On causation, it seems to me obvious that the accident happened because of the defendant's failure to instruct the plaintiff as to the proper use of the Vacuum Cleaner.

6. Mr Yau also relies on the fact that the plaintiff was employed as a technician, indeed an electrical technician. But that does not mean that the plaintiff has any special knowledge in the operation of the Vacuum Cleaner. Moreover I am not sure that the plaintiff's duties included the work that he was asked to do with the Vacuum Cleaner. Of course, as the plaintiff said, when he was asked or ordered to operate the Vacuum Cleaner he would do so because he did not want to lose his job. I do not think that in any way lessen the duty of care of the employer. I have no doubt that the defendant is wholly responsible.

Quantum

7. According to the plaintiff there was little pain to begin with however there was pain in his neck and right thumb the next morning. He reported the matter to a Ms Choy who was an administrative officer of the defendant and attended the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital for medical treatment. He was given pain-killer and was discharged on the same day. He then attended the Accident and Emergency Department of Tuen Mun Hospital ("TM Hospital") for further treatment on 29 May 2000 and 3 June 2000. A Dr Au of the TM Hospital produced two reports. In both these reports it was said that there was tenderness over the right thumb base. However, they noted that the ranges of movement and sensation over the right thumb were normal. The plaintiff was given successive sick leave. An operation was performed on him on 25 August 2000 and according to the medical report prepared by the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital dated 7 June 2002 :

"9. There was no significant positive finding. The muscle, tendon and surrounding soft tissue were normal.

10. There was just mild scarring around the radial digital nerve of right thumb.

....

18. 2% permanent disability was granted to him.

....

22. During the last follow up on 22nd, March 2002, we explained to him again that his condition was already stable. We should not further extend the sick leave.

23. But, he said his right thumb's condition was assessed by the doctors in North District Hospital and he would like to receive further treatment in North District Hospital.

24. He strongly requested the sick leave to be extended to 12th, May 2002 because he was followed up in North District Hospital on that day."

8. The plaintiff underwent 40 sessions of rehabilitation between 21 August 2000 and 26 June 2001. He was given a total of 850 days of sick leave intermittently from 26 May 2000 to 21 March 2003.

9. The plaintiff commenced employee's compensation claim against the defendant on 22 May 2002, the claim was settled on 28 May 2003 with the defendant paying the plaintiff compensation in the sum of HK$313,316.16.

10. For the purpose of his claim, the plaintiff was also examined by his own specialist, Dr Lau Hoi Kuen. His report is dated 20 December 2002 and Dr Lau had this to say :

"(5) At this examination, he is complaining of severe pain and weakness of his right thumb such that he cannot use chopsticks, write or button up his clothing. Physical examination revealed the following findings :

-	mild wasting of the muscles of the thenar eminence
-	decreased touch sensation over the whole thumb from the tip down to the wrist including the 1st web space and the whole thenar eminence
-	tenderness over the whole thumb
-	significant decrease in the range of movement of the MCP joint
-	significant decrease in the range of movement of the basal joint of the thumb
-	marked weakening in the power of the finger pinch
-	inability to actively extend his right thumb.

(6) While the above physical findings suggest severe impairment in the function of his right thumb, the extensive decrease in touch and pain sensation over the whole thumb from the tip down to the wrist cannot be explained on the anatomical arrangement of the nerve supply to the thumb. Even taking into consideration of the possible complication from the operation, on top of the injury during the accident, the extensive loss in sensation cannot be explained. The loss of active extension of his right thumb also cannot be explained. The absence of any muscle wasting of his right forearm, in the face of his complaints of such severe disability including the inability to use chopsticks, write or button up his clothing, also cannot be explained satisfactorily."

He concluded by saying :

"(9) The impression I have after having examined him is that the condition of his right thumb should have improved. No further treatment, medical or surgical wise, is indicated.

(10) He should be able to resume his pre-injury job although with a significant decrease in efficiency at work because of the residual pain in his right thumb. For the purpose of the Employee's Compensation trial, I suggest that Mr. Lee has suffered 5% loss of earning capacity.

11. Further the plaintiff was examined by a Dr Lee Po Chin acting on behalf of the defendant. Dr Lee produced three reports dated 8 February 2002, 19 May 2002 and 18 September 2002 respectively. In the first report dated 8 February 2002 Dr Lee said :

"6. On this examination, Mr. Lee could not move his right thumb in all direction. There was loss of sensation of the whole right thumb-ray, volar and dorsal. However, other signs of loss of sensation of the thumb, including trophic changes and injury marks were absent. The clinical picture could not be explained by focal injury at the MCPJ of the right thumb nor could it be explained by injuries to the digital nerves. Under such circumstances, further surgery will not be necessary. It is possible that other causes like cervical lesion or nerve entrapment syndrome may be responsible for Mr. Lee symptoms.

...

11. It was likely that the Mr. Lee's injury has residual symptoms affecting the movements and there was some loss of sensation of the right thumb. Mr. Lee should be able to return to his pre-existing jobs. There will be some impairment of his work efficiency.

12. .... Mr. Lee's impairment is :-

a.	-	Impairment due to impaired thumb movement = 5% of the thumb.
	-	Impairment due to loss of sensation of the right thumb = 50% of the thumb.
	-	The total impairment is 19% of the upper extremity or 11% of the whole person.
b.	The loss of earning capacity is 11%."

12. In his second report dated 19 May 2002 after he had reviewed the MRI and EMG and nerve conduction study reports on the plaintiff, he said :

" Both the cervical spine MRI and the nerve conduction and study failed to show an underlying cause for Mr. Lee's loss of sensation of the thumb as well as his inability to move the thumb. The nerve conduction study showed that the sensation of the thumb should be normal.

In the absence of the objective support for Mr. Lee's impair right thumb sensation and movement, it is likely that Mr. Lee probably suffered from some scarring in the right thumb, which slightly impair the movement of the thumb. His impairment of the whole person is probably just equivalent to 5% of the thumb, which is 1% of the whole person. The loss on earning capacity will be 1%."

13. In his report which is dated 18 September 2002, after he had viewed certain videotapes about which I have more to say below, Dr Lee had this to say in his report :

"Information from the videotapes

17th January 2001: Mr. Lee was seen holding the portable phone with his right hand. He also pressed the button using his right thumb. He also used the right thumb to press repeatedly on a pager. He continued with such activity for more than five to six minutes. He was at ease using his right hand, gripping his knapsack without any hesitation.

21st March 2001: Mr. Lee was again filmed at the clinic. He was getting things from counter using his right hand. He was then seen making phone call. He was holding the telephone with his left hand. He then started to have lunch. He was eating a chicken leg and using a spoon using his left hand. He was then seen flipping some papers using his right hand. There seemed to be no discomfort when he used the right thumb. He also got the wallet out of his back pocket using his right hand.

28th January 2002: Mr. Lee was seen opening the waist bag with his right hand. Mr. Lee was then seen eating noodle in a cafe. He was using his right hand holding a spoon and the left hand holding a chopstick. He then opened the zip of his waist bag and took out his wallet and searched for money using his right thumb.

Comments

From the way Mr. Lee moved his right thumb in the videotape, his complaint that he was not able to move the right thumb at the time of my examination on 28th January 2002 was probably not true. The total lack of active movement at the time of examination did not correspond to what was seen on the videotape. In addition, the EMG and nerve conduction study as well as the MRI of the cervical spine ruled out any structural changes that can account for his complaint of loss sensation of the right thumb. It is likely that Mr. Lee suffered from mild degree of scarring around the right thumb as the result of the alleged hyperextension injury of his right thumb and the subsequent surgery. The inability to move the right thumb and the loss of sensation were probably not genuine. Therefore, I would maintain my disability evaluation in my supplementary report on 19th May 2002. Mr. Lee's impairment of the whole person is 1% and the loss of earning capacity is 1%.

Bearing in mind that Mr. Lee had an operation of the right thumb done on 14th August 2000, sick leave up to March 2001 is reasonable. There is no justification of his subsequent sick leave."

14. There were two videotapes : one accompanied by a report dated 22 March 2001 and the second tape accompanied by a report dated 6 February 2002. They were produced by Quick Results (Asia) Investigation Agency Limited ("Quick Results").

15. In the first report on 17 January 2001, the plaintiff was videotaped at the TM Hospital. During this surveillance the plaintiff was seen using his right thumb to press the buttons of his portable phone as well as to check stock quotations from a pager for several minutes. He did so with ease and at speed. He did not appear to be suffering from any physical disability. He was again seen on 21 March 2001, leaving the TM Hospital at about 12:00 hours, went to Yuen Long and into a stock broking company where he stayed until 13:25 hours.

16. In the second report covered by the second tape he was seen on 28 January 2002 inside the Champion Building and whilst inside the building the videotape showed the plaintiff using his right thumb and the fingers of his right hand to operate the zip of his waist bag as well as to tidy his collar with apparent ease. Then at 18:50 hours he was seen eating at a café and he used his right thumb and his fingers of his right hand to hold a spoon whilst eating, also "to operate the zip of his waist bag, to take out a wallet from the waist bag, to search for/take out coins from the waist bag, count/hold the coins as well as to pay the bill with the coins with apparent ease."

17. I have watched the videotapes in court and I have heard the evidence of the plaintiff. I agree with the conclusion of Dr Lee that : "The inability to move the right thumb and the loss of sensation were probably not genuine."

18. From the videotape it is quite obvious that the plaintiff could use his right hand and right thumb normally. He was seen, for example, spending several minutes pressing the keys on his paging machine in order to get the latest stock quotation. In his evidence he said he did so because he had been advised by physiotherapists to exercise his thumb as much as possible. I do not believe that to be the reason. I appreciate that the demeanor of a witness can be misleading and I must give allowance to the plaintiff who is unused to giving evidence. My impression of the plaintiff is that he is a confident and intelligent young man. However, I must say that on the occasions in his evidence when he said he was exercising on the physiotherapist's advice, he was visibly uneasy.

19. It is quite obvious from the videotapes that he had no difficulty in manipulating his thumb. The total lack of movement which Dr Lee saw at his examination of the plaintiff on 28 January 2002 was not genuine.

20. Mr C.Y. Li who appeared for the plaintiff drew my attention to the fact that in the videotapes the plaintiff used chopsticks with his left hand. He also held a chicken drumstick with his left hand. But I cannot conclude from that that he was unable to use chopsticks with his right hand. Certainly from the movement that I observed on the tapes, I can see no reason why he was unable to hold chopsticks with his right hand. The plaintiff also demonstrated in court that he could only hold a pen between his index and middle finger. His thumb was useless. That is inconsistent with his dexterity with his thumb as shown in the videotapes. I am of the view that in court the plaintiff was feigning his disability.

21. I have referred to the medical reports of Dr Lau and Dr Lee both of whom made quite clear in their reports that there was no physiological reason for the plaintiff's alleged disability and/or loss of sensation in his right thumb. In Dr Lau's report quoted in para.7 above, he used the expression "cannot be explained" four times when he described the plaintiff's condition. Having watched the tapes the reason is very obvious : the plaintiff has no real disability with his right thumb or loss of sensation.

22. Having regard to the above evidence, I am of the view that the plaintiff has greatly exaggerated the condition of his right thumb. In my opinion I cannot rely on the plaintiff's evidence that he suffers any residual pain in his right thumb or loss of sensation.

23. Mr Li also relied on the certificate of an employee's permanent unfitness for a particular type of work issued under the Employment Ordinance, Cap.57. It certified that "he was not recommended for previous work". But that was based on the belief that the plaintiff was suffering from chronic right thumb pain and weakness.

24. Although the videotapes had been supplied to the plaintiff at least one year ago, none of the doctors or persons who had examined the plaintiff (apart from Dr Lee who examined him on behalf of the defendant) had been shown the tapes and asked whether in view of the tapes their opinion on the plaintiff's disability would be affected.

25. In the circumstances, I prefer the last report of Dr Lee to the reports relied on by the plaintiff. Dr Lee's last report is consistent with my own observation.

26. I turn to assess the compensation. I regard the figure of HK$50,000.00 suggested by Mr Albert Yau on behalf of the defendant for pain and suffering and loss of amenities (PSLA) to be reasonable. In assessing this figure I take into consideration the fact that he had undergone an exploratory operation on his thumb and the fact that according to Dr Lee sick leave up to March 2001 was acceptable. Dr Lee chose March 2001 presumably because of the reports by Quick Results. Having regard to the fact that I regard the plaintiff's evidence on his disability to be untruthful, it is probable that most of the "treatments" the plaintiff received proceeded from his exaggeration of his condition. I regard the injury suffered by the plaintiff to be minor. But for the plaintiff's exaggeration, the treatment he underwent would not have been so extensive.

27. I can see no reason why by March 2001 at the latest the plaintiff could not have returned to work as a technician.

28. I turn to consider the question of loss of earning capacity. Here the defendant has conceded a sum of HK$100,000.00. In order to arrive at a figure for loss of earning capacity I must consider the residual disability of the plaintiff. In this case I find little or negligible residual disability on the part of the plaintiff. According to Dr Lee there is 1% impairment of the whole person and 1% for loss of earning capacity. In the absence of the concession, I would have awarded a smaller sum for loss of earning capacity since on the evidence the residual disability of the plaintiff is small or negligible. He was earning HK$14,004.25 per month. I would not have awarded more than four months pay on the basis of a month's loss of wages for every 10 years, namely, HK$56,017.00. However, Mr Yau's concession is made on the basis that the award for PSLA should remain at HK$50,000.00. Although I regard HK$50,000.00 as correct for PSLA, I believe when the conceded figure of HK$100,000.00 for loss of earning capacity is taken into consideration, there is really no reason for me to make a higher award for PSLA.

29. The total award is :

PSLA	HK$50,000.00
Loss of earning capacity	HK$100,000.00
Pre-trial loss of earnings (to March 2001)	HK$140,042.50
Special damages	HK$10,000.00
Loss of MPF benefits	HK$2,684.00
Interest on PSLA ($50,000.00 x 2% x 0.889)	HK$889.00
Interest on pre-trial loss of earnings, loss of MPF benefits and special damages	HK$24,674.50 ____________
	HK$328,290.00

30. The plaintiff recovered HK$313,316.16 by way of employee's compensation. I agree with Mr Li that conventionally, in deducting HK$313,316.16, no account is taken of interest and I shall do the same. The net amount payable by the defendant to the plaintiff is HK$14,973.84 and judgment is given in favour of the plaintiff in that amount.

31. I direct that the parties shall make written submissions on costs within 14 days.