YUSAF EDNAN v. LEIGHTON KUMUGAI JOINT VENTURE

MPI/LA 15990/2000 (DP13)
(ECC/LA 13036/2000)

HCPI 684/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 684 OF 2001

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J U D G M E N T

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1. On 19 August 1998 the Plaintiff, who was then aged 26 and employed by the Defendant as a 'tunnel boring machine mechanic/fitter', was injured in an accident at his workplace. That accident has given rise to this action for damages for personal injuries.

2. At the outset of this trial liability for the accident was conceded on behalf of the Defendant the only issue then remaining being that of quantum.

3. During the course of the trial, which lasted for some 5 days, I heard evidence from the Plaintiff and two witnesses called on his behalf and from 3 witnesses for the Defendant. I was shown photographs of the machine (and the site of its operation) connected with the accident; of another 'drilling' machine operated by the Plaintiff in other employment subsequent to the accident, and a video film of the Plaintiff's activities on two days in September of this year which, argued counsel for the Defendant, shows the Plaintiff to have been exaggerating his injuries and shows him to be a 'malingerer'.

The accident

4. Albeit that liability is not in issue before me it is perhaps important to understand how the accident happened and, more so, the nature of the Plaintiff's work and the conditions in which he was necessarily required to carry it out because of his assertion that, by reason of his injuries, he is now unable to return to that particular type of work. The Plaintiff's duties in that employment included the repair and maintenance of the 'tunnel boring machine'.

5. That machine is of course designed to do precisely that to bore tunnels into rock and other materials. It is a very large machine, about the size of a train/locomotive, which proceeds forwards as the boring process is undertaken. It creates a round tunnel as it proceeds so that there is no flat even ground upon which its operators can stand. There is, inevitably, a great deal of water in the tunnel at any given time.

6. Attached to the front or face of the machine by metal bolts are more than 20 cutters, each of which weighs something approaching 200 kilograms. Periodically those cutters need to be removed and replaced and the only access available for that purpose is through a hole near the centre of the machine. Winches, wires and lifting chains are employed in the replacement of the cutters.

7. It follows, I think without saying but having seen the photographs and having had them explained, that the work is hard, difficult and needs must be carried out in extremely unpleasant and cramped conditions. It is also work which is financially well rewarded.

8. In the afternoon of 19 August 1998 the Plaintiff found that a cutter was not operating. Some of his follow employees were seeking to move/replace that cutter when it fell from the machine onto the Plaintiff's left leg.

9. He was taken by ambulance to the Alice Ho Miu Ling Nethersole Hospital for treatment. He was there diagnosed with a fracture of the left tibia and fibula, with local tenderness and deformity of left tibia. On 20 August 1998 he was treated with close reduction and implant of intramedullary nail to his left leg. After his discharge from that hospital on 1 September 1998 and the Tai Po Hospital on 12 September 1998, the Plaintiff returned to the Alice Ho Miu Ling Nethersole Hospital to attend follow-up treatment, physiotherapy and occupational therapy on numerous occasions. On 21 August 2000 the Plaintiff was again admitted to the Alice Ho Miu Ling Nethersole Hospital for the removal of the intramedullary nail. He was discharged on 26 August.

10. The Plaintiff received occupational treatment at the Alice Ho Hospital on 23 occasions from 19 March 1999 to 17 August 1999 and he received outpatient treatment at that Hospital's Orthopaedics & Traumatology Department on 22 occasions from 12 October 1998 to 10 January 2002. He received physiotherapy at the Alice Ho Hospital on 31 occasions from 15 September 1999 to 20 November 2000.

11. The Plaintiff was granted sick leave from 19 August 1998 to 23 November 1999; 22 December 1999 to 15 December 2000 and between 10 and 11 January 2002. He spent a total of approximately one month in hospital on 2 occasions and he used crutches for several months after his discharge from hospital. In his evidence before me the Plaintiff explained the 'gap' in his sick leave between 23 November and 22 December 1999 by saying that he had forgotten to visit the doctor.

The Medical evidence

12. In a report dated 26 March 2001 Dr Lee Po Chin (for the Plaintiff) stated that: -

"The Plaintiff complained of

(1) pain in the left knee especially when he sits with his arm resting on the left knee.

(2) he can only squat for a very short period of time;

(3) numbness and tingling sensation in the left leg; and

(4) pain in the left leg when running."

Dr Lee's examination of the Plaintiff's left ankle revealed 7 cm longitudinal scars over the left infra-patella area with four stab scars at the medical side of the shin with tenderness at the junction between the lower third and middle third of the tibia. Examination of the left knee showed slight tenderness in the Gerdy's tubercle and mild pain in the patellofemoral joint. There was a slight bony protruberance at the anterior aspect of the tibio-plateu corresponding to the insertion point of the tibial intramedullary nail. There was 1.5cm muscle atrophy of the left calf and slight left thigh muscle atrophy. There was calcification around the site of insertion, suggesting irritation of the patella tendon, accounting for some degree of left knee pain. There was a residual impairment of the function of the left tibia as a result of soft tissue scarring around the fracture site. Dr Lee was of the opinion that the residual pain and painful sensation in the left leg would cause some impaired efficiency of work. Dr Lee was further of the opinion that the Plaintiff's working capacity would be impaired as a result of the heavy nature of his job and might impair his ability to return to his work as a tunnel boring machine mechanic/fitter.

13. I should just add here in relation to the complaint at (4) above that on the evidence before me it was decidedly unclear because of linguistic difficulties whether the Plaintiff complained to Dr Lee of pain when running, or of pain when attempting to run or of pain preventing him from running at all.

14. The orthopaedic surgeon for the Defendant, Dr Lau Hoi Kuen, examined the Plaintiff on 3 separate occasions in August 1999; in April 2001, and in September 2002. In short it was his view, expressed in reports following those examinations, that :-

(1) The X-ray of the left leg of the Plaintiff in August 1999 revealed solid union of the fracture in a satisfactory manner and that there was good reduction of the fracture.

(2) The Plaintiff's condition had improved as evidenced by improved walking gait, absence of tenderness over the Achilles tendon, improved muscle bulk of his left calf and improvement in the dorsiflexion of his left ankle, and

(3) The Plaintiff had suffered 2% permanent disability and 3% loss of earning capacity; and that he should be able to resume his pre-injury job with the minimal permanent disability of his left lower limb and the appropriate sick leave period should not be more than 11/2 years.

15. In his evidence before me during the trial Dr Lee told me, inter alia, this:- that he had seen the video tape of the Plaintiffs activities in September 2002 and that that showed him to be walking with a limp which became more pronounced the further he walked: that that was consistent with the Plaintiff's account that he suffered pain in his left leg; that when he examined the Plaintiff he had no reason to think that he was malingering; that if the Plaintiff was suffering from pain in his left leg it would be difficult for him to resume his pre-accident employment; that patients frequently suffer from pain which it is not clinically possible to explain; that the Plaintiff's complaints of pain appeared to be genuine because the site of such pain was consistent with his injury and the surgery; that the progressive replacement of the Plaintiff's thigh and calf wasteage indicated a greater use by the Plaintiff of his left leg; that his view concerning the Plaintiffs permanent condition was based upon 'endurance', that he could not explain the Plaintiff's symptoms beyond the atrophy, the pain in the patella tendon and scarring because pain is subjective; that it was not unusual for a nail, implanted in a fracture such as that suffered by the Plaintiff, to be removed some 2 years after its insertion and that, to be on the safe side, he would allow 4-6 months sick leave for a patient following the removal of the nail.

16. Dr Lau's opinion, given during his evidence was (in short) that the Plaintiff initially suffered a mild limp which gave rise to the muscle wasteage; that following the removal of the nail the maximum convalescence period required would be not more than 3 months; that by the time he saw the Plaintiff for the second time improvement was shown in his ability to walk to stand and to climb; and that by the time when he saw the Plaintiff on the last occasion (in September 2002) he could walk normally and could squat fully; that he was fit to resume his pre-accident employment; that the Plaintiff's limping as shown on the video film was not consistent with his (the doctors) examination of the Plaintiff earlier that day and that if he was indeed limping that might be due to post traumatic stress disorder or to 'malingering' in the sense that he was only doing it for effect.

Post accident to trial

17. Following the accident, as I have said, the Plaintiff was granted sick leave from 19 August 1998 to 23 November 1999; from 22 December 1999 to 2 January 2001 and on 10-11 January 2002; a period of some 27 months. Dr Lau suggests that that was too long and that 21 months would have been more appropriate.

18. The Plaintiff worked as a security guard from about 26 June 2001 until about 26 July 2001 and as a drilling rig operator from 23 November 2001 until 30 April 2002 and he earned $72,058.00 from that employment. There was initially some uncertainty on the papers as to why he lost those jobs but suffice it to say that on the evidence I am quite satisfied that the Plaintiff lost the former simply because he had been employed as a 'stand in', and he lost the latter because he felt (rightly or wrongly) that he had been falsely accused of poor time keeping and carelessness and he resigned. He lost neither job because of his injury albeit that he undoubtedly felt some discomfort whilst working as the drilling rig operator.

19. The Plaintiff says he has been unable to find suitable employment since 30 April 2002 to the present but he has made application to engineering companies for employment as a fork lift operator and as a mechanic and he is reasonably optimistic about one of those.

The issues

20. I have been greatly assisted in this case by the very helpful written and oral submissions of Mr Kerr, counsel for the Plaintiff, and Mr Wright, counsel for the Defendant. I intend no disrespect to either of them by reciting only very briefly here the general thrust of those submissions before endeavouring to deal with them.

21. Mr Kerr suggests that the central issue in this case is whether or not the Plaintiff can return to his pre-accident type of employment and, if not, what is the nature of other work which he might reasonably be expected to undertake. Mr Kerr also says that another issue for me to determine is whether the Plaintiff has mitigated his loss between the date of the accident and the date of the trial.

22. What he says about those matters is this:-

"It is the Plaintiff's case and was the Plaintiff's evidence that the Plaintiff could not, as a result of his injury, return to his previous job. After relatively minor exertion he suffers from pain in his left leg. The symptoms he described when giving evidence are entirely consistent with pain emanating from his accident. As a result of the accident he walks with a limp and that limp becomes more pronounced the more he exercises. The more the Plaintiff exerts himself, the more his leg becomes painful. The Plaintiff's evidence can be summed up to the effect that he simply could not contemplate going back to his previous job. Also because he is not fully fit, he is at a far higher risk of badly injuring himself as tunnel working is dangerous work.

Another vital piece of evidence is that the Plaintiff would have to undergo a medical examination, which he says he could not pass. This was not challenged. It is not surprising that employers would subject TBM workers to a rigorous medical as their fitness will have a large bearing on how fast the tunnel is completed.

As a matter of practicality it is highly unlikely that an employer would take the risk of employing somebody who was not fully fit and especially somebody who limps as a result of an accident.

On the part of the Defendant it is maintained that the Plaintiff "is exaggerating his symptoms and is malingering". It is submitted that this assertion is at best a theory, wholly unsupported by the evidence. Pre-accident the Plaintiff had impeccable references as a worker. Post-accident the Plaintiff has undergone extensive occupational therapy and physiotherapy. He exercises every day in order to keep himself fit as far as he can. Mr Irfan gave evidence to the effect that the Plaintiff was an excellent worker when he obtained employment post-accident. The Plaintiff himself has tried to get work and generally it is submitted that none of the evidence supports the proposition that the Plaintiff is malingering.

Dr Lee readily accepted that the Plaintiff would have great difficulty returning to his previous employment and probably could not do his pre-accident employment. Dr Lau accepted that unless a worker was fully fit, he could not safely do the Plaintiff's pre-accident employment. Dr Lee and the doctors attending the Plaintiff when he was receiving treatment did not even consider the possibility that the Plaintiff was malingering. Indeed the report of Dr Fan specifically stated that the Plaintiff "did not demonstrate any symptom exaggeration".

Generally it is submitted that all the evidence points to a Plaintiff who suffered a serious injury and since that injury has attempted to obtain employment suitable to his condition."

23. From there Mr Kerr turned his attention to the question of what alternative employment it would be reasonable to expect the Plaintiff to engage in given his injury and stating that, as a matter of legal principle, the law should not "press a man to do a job when such job entails him suffering pain".

24. In short, and by reference to the findings of the Labour Department which were that the Plaintiff will only be able to perform "unskilled jobs with low to moderate physical remands such as lift attendant, packer and shop assistant" which would attract a salary of about $5,000.00 per month, Mr Kerr suggests that the Plaintiff should not be pressed to do anything more strenuous than, say, the job of a watchman earning about $7,000.00 per month.

25. In his submissions Mr Wright says, inter alia, the following:-

"In March 2001 Dr Lee was of the opinion the Plaintiff was fit to return to his pre-accident job. The solicitor's letters which caused him to change his mind he refers to as "the heavy nature of his job and the severe working conditions described in your letters...". The muscle wasting observed by both doctors in March and April 2001 has by 13 September 2002 all but disappeared. The difference between right and left calf and thigh girths was 1/2 cm. It is submitted this is a clear sign that the Plaintiff has ceased favouring the injured leg (i.e. limping), otherwise the muscle wasting would have persisted or become more marked and at least have remained at over 1 cm. Dr Lau supports this view.

Dr Lee was of the view that the Plaintiff suffered pain and tingling sensation in the left knee because of calcification around the site of the original nail insertion, indicating irritation of the patella tendon. This is the highest Dr Lee has put the Plaintiff's knee problems. No ankle joint problem has been identified. All the objective signs are of gradual, steady, if not fast, improvement and recovery. The Plaintiff, far from admitting this, has even suggested his condition has worsened."

26. In putting the Defendant's case Mr Wright goes on to say this:-

"Dr Lau's observations of the Plaintiff on 13 September 2002 confirm his earlier findings and no further treatment is required. He states that the disability of the left leg is mild, the Plaintiff should have recovered well from the injury and be able to return to his pre-injury work. Particular attention is drawn to the finding, inter alia, at page 94(3):

"Physical Examination

Walks normally

Can squat fully""

and he then suggests that albeit the video film of 13 September 2002 adduced into evidence clearly shows the Plaintiff to be walking with a slight limp which limp appears to get worse the further he travels the Plaintiff was aware that he was being filmed and he was 'putting on the limp'.

27. Before turning to the question of the appropriate length of sick leave Mr Wright stated his position in this way:-

"The Defendant does not say the Plaintiff is entitled to no damages. The defence case is that the Plaintiff is grossly exaggerating his injury, is malingering and is probably fit enough to return to tunnel boring machine maintenance. The burden of proof is on the Plaintiff to establish entitlement to the level of damages he seeks. The ...... court will determine the Plaintiff's credibility but in this case great caution should be exercised in approaching his evidence."

Conclusions and findings of fact

28. I accept without hesitation the evidence of the Plaintiff and Dr Lee. I am in no doubt whatsoever that, whatever the cause, the Plaintiff continues to suffer pain (exacerbated by walking, squatting or by other pressure) in his left leg. Indeed in my view the video film adduced by the Defendant, far from showing the Plaintiff to have been malingering, corroborates the Plaintiff's account of that pain and of his limping. He was not aware of the fact that he was being filmed. His pre-accident sporting activities have necessarily had to be curtailed.

29. I do not accept the evidence of Dr Lau which was, with respect, demonstrably unsatisfactory in several respects. He kept no full record of his consultations with the Plaintiff as to time and duration and as to who was present, and as to what precisely the Plaintiff told him (either directly or through an interpreter). In addition or so it seems to me he could not properly test the veracity of the Plaintiff's complaints about pain leading to limping given the limitation of his (the doctor's) consulting room, and nor was he in a position (given his apparent lack of understanding as to the Plaintiffs specific tasks during his employment prior to the accident) to boldly conclude that he (the Plaintiff) was fit to return to them.

30. I accept that the Plaintiff suffers no osteoarthritis and that there are no signs that such may develop in the future.

31. I am quite satisfied, on the evidence before me, that the Plaintiff is not able to return to the specific type of employment in which he was engaged at the time of the accident which entails lifting and manoeuvring very heavy weights in confined spaces and over uneven surfaces.

32. However, I can see no reason why the Plaintiff cannot do operating, fitting and mechanical work on smaller drilling machines such as those used in his post accident employment. Nor can I see any reason why he cannot do other mechanical work that may be available to him which does not entail those specific hardships to which I refer in para 31. Certainly on the evidence before me I cannot accept that it is realistic or reasonable only for the Plaintiff to work as a lift attendant, a packer, a shopkeeper or a security guard or the like.

33. I find on the evidence that the period of sick leave (and I include in that the period between 23 November 22 December 1999) granted to the Plaintiff was, in all the circumstances, reasonable and not excessive, and I accept that his employment (had it not been for the accident) would have terminated on the completion of the Defendant's engineering contract in May 1999. I also accept that prior to the accident the Plaintiff was not employed in tunnel boring machine work year after year but only when such work was periodically available by reason of tunnelling contracts.

34. What are the notional pre trial earnings? That is an extremely difficult question to answer. The argument presented to me by counsel in respect of this matter was this. Mr Wright argued as follows:

"The witness statement of Tang Oi Lin, Irene dated 27 February 2002 states the Plaintiff's average monthly wages whilst employed by the Defendant at $24,330.00. ...... Letters from the Defendant's Mr Greg Jacques dated 3 August 1998 and 25 June 1999 state his average wage at $25,150.00. ......The Plaintiff's bank records are incomplete and it is difficult to accurately count his earnings from them. The Defendant's own records are based upon what the Plaintiff was actually paid and in addition, the payments shown tally with the Defendant's records, so the court should adopt slightly over $24,330.00 as the pre-accident average earnings to take into account the fact the total wage period is slightly less than 8 months.

Several important matters emerge from Madam Tang's evidence:

* the downturn in the construction industry;

* the static rates of pay since 1998,

* the big reduction in overtime (which comprised much of the Plaintiff's income before the accident);

* the travel allowance $30.00 per day which was only paid for days the Plaintiff turned up for work;

* the lower 5% Mandatory Provident Fund contributions resulting from lower incomes of the workers.

The court will have to arrive at a median income pre-trial in order to calculate the wages the Plaintiff would have earned but for the accident. It is submitted his income would not have increased but rather decreased. The Government statistics are not a proper guideline because the Defendant paid more than they show for fitters, and the statistics should include overtime, allowances and bonuses."

Mr Kerr's argument was this:-

"It is submitted that the appropriate starting point is to assess the Plaintiff's earnings as at the date of the accident. The most accurate way of doing this is taking an average of the Plaintiff's earnings from the date he received his last pay rise in April. Since he received that rise the Plaintiff has worked for 4.6129 months earning a total salary of $118,071.00 which equates to a monthly salary $25,595.00. In so far as the Defendant relies on his earnings before he received a rise, it is submitted that this is an incorrect approach.

Since the date of the accident the average earnings of a fitter have risen by 11.2%. This means assuming the Plaintiff's wages would have risen in line with fellow fitters he would have been earning $28,717.59 as at the date of trial. In addition to this he would be receiving an extra 5% because of the introduction of MPF. Thus his earnings as at the date of trial should be $28,717.59 x 1.05 = $30,153.50.

This figure accords with the Government Statistics of tunnel workers where the vast majority of tunnel workers earned between $25,000.00 $35,000.00."

As to the mandatory provident fund contributions Mr Wright reminds me that these commenced on 1 December 2000 and he submits that they are a separate head of damage and should only be calculated on the lost income since the date of commencement and not by multiplying the whole of the pre trial median by 1.05% which would distort the earnings median.

35. In adopting the figure of $25,595.00 as being the Plaintiff's monthly salary it will be seen that I accept the first part of Mr Kerr's argument but not the second. I am very conscious of Madam Tang's evidence to which Mr Wright refers. That was, to my mind, compelling evidence and I accept that there have been no increases in the salaries of the Defendant's tunnel boring machine fitters or mechanics since 1998 and I think that it must logically follow that that will have been the position with the Defendant's competitors in the tunnel boring business.

Damages for pain and suffering and loss of amenities

36. Having considered the authorities submitted to me and the arguments of counsel it is my view that an award of $400,000.00 is appropriate in the circumstances of this case.

Pre trial loss of earnings

37. I confess to having found the assessment of this head of damages also exceedingly difficult for a number of reasons addressed by counsel in their submissions, including the duration of the Defendant's contract and the likelihood of the Plaintiff being laid off upon its completion; the likelihood (or at the very least the real possibility) that identical work would not have been immediately available to the Plaintiff upon his being laid off; and (in that event) the nature of the work to which he would (or might) have turned his hand whilst waiting for the better paid work of attending to tunnel boring machines 'at the face' becoming available.

38. Doing the best that I can it seems to me reasonable to suggest that but for the accident the Plaintiff would have continued his employment with the Defendant until May 1999 before starting similar work on a new contract and at the same rate of pay either with the Defendant or with some other contractor possibly after some delay during which he would have found employment similar to that which he had with the company Koken post accident.

39. The period from the date of the accident until trial is 50 months. The Plaintiff was on sick leave, or was unable to work at all, until January 2001 for say 28 months. He did not find employment, as a security guard, until 26 June 2001 a period of say 34 months after the accident and for a period of only 1 month. He could not then find employment until 23 November 2001 when he started as a drilling rig operator which employment he continued for 5 months until his resignation on 30 April 2002. His monthly income from that employment was on average $12,070.00 per month excluding MPF.

40. I assess the Plaintiff's notional monthly pre trial earnings at ($25,595.00 + $12,070.00) ÷ 2 = $18,832.50. Over 50 months that gives a pre trial figure of $941,625.00 but there must be deducted from that sum the monies which he actually earned of $72,058.00 and the monies which I find that he could have earned had he not elected to resign from his drilling rig operators job i.e. $12,070.00 x 5.5 (months from resignation until trial) = $66,385.00. The pre trial loss figure then subject only to the MPF addition is:-

$941,625.00 ($66,385.00 + $72,058.00) = $803,182.00

Loss of Future Earnings

41.As I have indicated it is my view that the Plaintiff is fit and able to do a job similar to the job he performed between November 2001 April 2002. The multiplier which I adopt after consideration of the arguments of counsel is 13. The calculation therefore is,

$25,595.00 - $12,070.00 = $13,525.00

$13,525.00 x 12 x 13 = $2,109,900.00

Mandatory Provident Fund Contributions

$18,832.50 x 22.5 (months between 1 December 2000 and trial) x 5% = $21,186.56. From that figure must be deducted the MPF actually received from Koken and the MPF which would have been paid up until the date of trial had he not resigned i.e. $3,177.11 and $12,070.00 x 5.5 x 5% [$3,319.25] i.e. $6,496.36

= $14,690.00

I calculate the future loss of MPF as follows:

$2,120,820 x 5%	= $106,041.00
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	$120,731.00
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Loss of Earning Capacity

43.The appropriate figure here, considering the judgment in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 is $100,000.00.

Interest

44. Interest on the pre trial damages will be paid at half of judgment rate from the date of the accident and on the PSLA award at 2% from the date of the writ - 15 August 2001.

Special Damages

45. These will be allowed to the Plaintiff in the sum of $7,670.00.

Summary of award

Costs

47. I make a costs order nisi that the costs of this action be to the Plaintiff if not agreed. I make a further order nisi that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.