SUBBA ALVIN ALSO KNOWN AS GURUNG YADAP CHANDRA v. HOUNG KEE (ASIA) LTD AND OTHERS

HCPI 154/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 154 OF 2010

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages in a personal injury claim concerning an alleged head and neck injury at work.

I.  Background

2.  The plaintiff, aged 35 at the time, was a formwork carpenter employed by the 1^st defendant for about 21 days when he was allegedly hit on his head by a wooden board dropped by a co-worker working above him on 13 April 2007.  The plaintiff was wearing a safety helmet at the time.

3.  With help, he was able to walk down from 22^nd floor (where the alleged accident happened) and then took a bus to attend the A&E Department at Queen Mary Hospital.

4.  The A&E records stated: “head injury by falling object at 8am, no external wound, complain of dizziness+, no vomiting, no loss of consciousness”.

5.  X-rays of the skull and cervical spine were taken and reported as “no fracture, alignment well, no abnormal soft tissue swelling”.

6.  Doctor’s notes recorded a complaint of headache in addition to dizziness.  On examination, no focal neurological deficits and no external wounds were found.

7.  The plaintiff was discharged home on the same day with Panadol (a mild pain killer) and Stemetil (an anti-emetic) and 4 days of sick leave until 16 April 2007.

8.  From 17 April 2007 to 11 May 2007, the plaintiff attended the A&E Department of Queen Elizabeth Hospital (“A&E”) on 5 occasions, complaining of continued neck pain or headache.  He was referred to Orthopaedics and Traumatology Out Patient Clinic (“O&T OPD”) and physiotherapy on 27 April 2007.

9.  From 21 May 2007 onwards, the plaintiff attended Yau Ma Tei Jockey Club General Out Patient Clinic (“YMT Clinic”) about some 120 times with continuous complaints (of variable degrees) of headache and neck pain etc.  He was given medications for symptomatic relief (eg analgesic balm and painkillers) and short periods of sick leaves, and he re-attended YMT Clinic each time when the sick leave period ran out.  This went on until 4 November 2008 (and sick leave, in that occasion, covered up to 9 November 2008).

10.  The period was interspaced with four consultations with a private doctor, Dr Au Kin Ming (on 2, 3, 10 17 October 2008) and MRI scan of neck and brain was performed.  There were also three consultations with Dr Sze Tak Suen (10, 18 and 31October 2008).  Dr Sze, an anaesthetist in private practice, reported that his plan of management was to “give oral medication first and proceed with interventional pain management procedure if conservative treatment failed”.

11.  It is noted that during these private consultations, the plaintiff continued to attend YMT Clinic.  The plaintiff last consulted Dr Sze on 31 October 2008.

12.  On 10 November 2008, the plaintiff started attending the Neurosurgical Out Patient of Queen Elizabeth Hospital (“Neuro OPD”).  It was recorded that the plaintiff “started to have lower back pain this year (08)” and “consulted O&T surgeon arranged private MRI 10/8 showed dissecated L4-S1 discs, C5-6 syrinx”.

13.  The plaintiff was referred again for physiotherapy.  No medications was prescribed (“Prescription: Nil”) according to the records.  The plaintiff was given a sick leave period of 114 days (until the next follow up on 3 March 2009).

14.  On 3 March 2009, the plaintiff attended the Neuro OPD follow-up.  It was noted that he was still on physiotherapy.  The plan was to repeat the MRI scan and had a follow-up 2 weeks after the scan.  Again, no medications was prescribed (“Prescription: Nil”) according to the records.  The plaintiff was given another sick leave of 112 days (until 22 June 2009).

15.  It should be noted that during this period of long sick leaves being granted, despite apparently receiving no prescription, the plaintiff only attended YMT Clinic twice (on 8 and 24 March 2009).

16.  The plaintiff attended a further neurosurgical follow-up on 16 June 2009.  The doctor recorded:

“condition similar but main complaint was knee pain now” “similar headache and neck discomfort, walks with stick”

“MRI (non-contrast)

- no nerve root compression

- no significant disc bulging

….

Prescription: Nil”

17.  There were further Neuro OPD follow-ups (6 June 2009 and 9 February 2010, 20 July 2010 etc.).  No further treatment was given and the doctor only gave, if at all, sick leave for half a day (for attending the consultation).

18.  Around that time, the plaintiff also attended O&T OPD. On 2 April 2009,  the orthopaedic surgeon recorded:

“complains of persistent neck pain and back pain, dizziness+, Nausea+, occasional numbness at the hands”

“request to stand for a while during the consultation, claimed he cannot sit for too long”

“neck range of movement limited in all directions”

“power grossly intact, lower limb power limited by back pain, no sensory loss, reflex normal”

“Waddell positive”

19.  The Orthopaedic surgeon prescribed medications for symptomatic relief (similar to those previously prescribed by YMT Clinic) but no sick leave was granted.

20.  The plaintiff was also referred to the Anaesthetic Clinic / Pain Clinic of Queen Elizabeth Hospital (“Pain Clinic”) and he first attended on 18 June 2009. It was recorded that the plaintiff complained of persistent headache, neck and back pain.  Treatment plan was “bilateral low lumbar facet injection” (which was treatment for his complaint of lower back pain) and “physio”.  Again, no medication was prescribed but sick leave for 60 days was granted (until 16 August 2009).

21.  The plaintiff was admitted to Queen Elizabeth Hospital on 5 August 2009 for “bilateral lumbar facet joint injection” for his lower back pain and “trigger point injection” in lower neck muscle for his neck pain.  He was discharged on the same day.  He also granted a sick leave for almost 3 months until 3 November 2009.

22.  Starting from 2 January 2010, the plaintiff began attending the Queen Elizabeth Hospital A&E Department (“A&E”) again complaining of essentially the same neck and lower back pain.  The plaintiff attended A&E about 10 occasions until 20 September 2010 and would be usually given an injection of painkiller and then “discharged home with no follow up”.

23.  Just like his attendance at YMT Clinic, the plaintiff attended A&E more or less whenever the sick leave ran out.

24.  On one occasion, he obtained sick leave from A&E to cover right up to the Neuro OPD appointment on 9 February 2010.  However, the neurosurgeon (as stated above) only gave half a day of sick leave.  The plaintiff then attended A&E the very next day and obtained another period of sick leave.

25.  On another occasion, when the sick leave granted by A&E ran out on 20 February 2010, he returned to YMT Clinic on 21 February 2010 to obtain 2 more days of sick leave, which then bridged him over to the Pain Clinic appointment on 23 February 2010.

26.  From 20 September 2010 onwards, the plaintiff only managed to obtain a single “day of consultation” sick leave from the three specialists Out Patient Departments he had been attending: Pain Clinic (one day on 18 October 2010), Neuro OPD (one day 4 January 2011), O&T OPD (one day on 7 February 2011).

27.  The plaintiff continued to attend A&E a few more times and follow-ups in these three departments.  He has also been attending physiotherapy and occupational therapy and he was also admitted for more facet joints/trigger point injections.  However, it would appear that no sick leave, or no significant length of sick leaves was granted. The last sick leave was for 4 January 2011, some 3 years and 9 months after the alleged accident.

28.  The plaintiff has been awarded Employee’s Compensation amounting to HK$505,854.64.

29.  The plaintiff commenced the current claim on 8 April 2010 and Interlocutory Judgment on liability was entered on 30 September 2010.

30.  On 29 November 2011, the plaintiff sought leave to raise a new case that he not only injured his neck as a result of the accident but that he also fell down on his buttocks after being hit on the head, thus causing injury to his back and lower back pain.

31.  However, it was clear from the medical reports and records that the plaintiff only first complained of lower back pain in 2008 and both the plaintiff’s and the defendant’s orthopaedic experts had agreed that the plaintiff “did not suffer injury to his back….in the captioned accident on 13 April 2007”.

32.  As such, Bharwaney J rejected the application and concluded that “the new case that (the plaintiff) seeks to advance is weak and unlikely to succeed” and His Lordship has “little hesitation in concluding that (he) should refuse these late applications”.

33.  Therefore, the current assessment will not deal with any alleged lower back injuries.

II.  Matters in dispute

34.  The defendant’s case was that the plaintiff was malingering.

35.  Mr Wong, SC, cross-examined the plaintiff in details about many inconsistencies between what he now claimed compared to what was documented at the time: for example, the discrepancy between the diagram in his signed statement to the Occupational Safety Officer (relevant to how far the wooden plank fell before hitting his head), the transportation he used to go to and from Queen Mary Hospital A&E Department, whether he mentioned his alleged back injury to the A&E doctor at the time etc.

36.  I need not go into details of these but in general, the plaintiff now attempted to portray a more severe injury than recorded in those contemporaneous documents, and whenever the plaintiff was cross-examined on such inconsistencies, he would blame communication problems at the time the document was made.

37.  The plaintiff claimed that, due to his language barrier, he was always accompanied by a friend who acted as a translator, and he blamed his friend’s failure to translate properly for any number of inconsistencies between his evidence and evidence recorded in contemporaneous records.  However, he could give no explanation as to the many medical records that stated that he attended on his own and “can speak Chinese” or “English speaking”.

38.  Of course, if it was true that the plaintiff could not speak Chinese or English and had to rely on his friend (or friends), this begs the question why he has continued to rely on the friend (or friends) who was, time and time again, shown be a complete failure in his job.

39.  “Continual reliance on complete failures” seemed to be a recurring theme if the plaintiff’s version of events was to be believed.

III.  Plaintiff’s sickness behaviour

40.  The most impressive aspect of this case was the plaintiff’s continual attendance at the YMT Clinic on some 120 occasions over the span of 1 ½ years.  (There was a similar, but somewhat less impressive, history of repeated attendance at A&E). The Plaintiff alleged that he was “pending appointment” with specialist”.

41.  There was no dispute that the treatment that the plaintiff was given during this time was no more than symptomatic relief like analgesic balm and pain-killers.  The doctors there made no attempt to seek an urgent or earlier appointment with the specialist the plaintiff had already been referred to, refer the plaintiff to other specialists, or perform further substantive investigations.  In other words, it appeared that the plaintiff’s complaints were not being taken very seriously.  The plaintiff was given a few days of sick leave after each attendance and he would return, regular as clockwork, whenever the sick leave period ran out.

42.  The plaintiff’s medical complaints were described in great details in the Statement of Damages:

· “neck pain radiating up to both side of the head and triggers headache that makes the Plaintiff very hard to bear”

· “pain in neck very deep and constant and…aggravated by neck movement”

· “unable to fall asleep”

· sleep disturbance even after falling asleep

· “cannot go to sleep by lying on his back because of back pain” and “difficulty to adapt a sleeping posture…”

· “numbness to right leg” and “burning sensation”

· worst in “cold weather”

· “cannot eat” when neck pain was sharp

· “difficulty in attending person hygiene”

· pain affecting “sexual life”

· pain when going to toilet, “sneezing, coughing and chewing”

· “difficulty climbing up and down” and cannot squat due to pain

· “difficulty in walking and pain….increase after walking for 15 to 20 minutes”

· “unable to tolerate prolonged sitting…”

· “Rely upon an elbow crutch for all outdoor activities”

43.  A person who actually suffers such a severe and life-crippling illness should be very concerned about recovery and return to a normal life (and work). Logically, one would expect him to return to seek medical help immediately once he realized that he was not getting better with the existing treatment without waiting for the 4 or 5 days’ of sick leave to expire before returning.  On reattending the doctor, he might question the diagnosis, demand stronger medications, further investigations, change of doctors, urgent referral to specialists etc.

44.  And when after a few reattendance failed to cure such a serious illness, one would also expect any reasonable person to become extremely worried, with questions like: “Why am I not getting better?  Would it be something more serious? Is the doctor being careless?  Did he miss something serious?  Can it be cancer?  Will this get worst?  Will I be paralysed?  Am I dying?”

45.  In the current case, one might expect that any reasonable person would have long lost his trust and confidence in these doctors’ abilities (perhaps even creating a big “shouting” scene at the clinic and making complaints to the relevant authorities or institutions) and gone to see other doctors.

46.  Instead, the plaintiff kept returning to obtain the same and evidently “failed” treatment some 120 times.

47.  When I asked the plaintiff why he would continue to see the doctors at YMT Clinic despite not getting better, and why he did not demand a referral, more investigations etc, he replied that he did made various requests for referrals and investigations but these requests were ignored.

48.  I would have thought that this would give him even more reasons not to trust the doctors and to leave the clinic immediately to seek cure from other doctors.

49.  In fact, all through this period, the behavior of the plaintiff showed that he did everything to ensure that he obtained a continuous period of sick leave (eg attending YMT Clinic exactly on the day the last sick leave period ran out, “actively” requesting for sick leaves as doctors recorded on at least 17 occasions etc) but did nothing (or next to nothing) to obtain cure for a serious illness that one would expect a reasonable person would do (eg request for stronger medications/more investigations/urgent referral to specialists, refusing taking further “failed” medications, distrusting the “failed” doctors etc).

50.  It is therefore obvious that the plaintiff was far more interested in obtaining sick leaves than curing his alleged illness.

51.  Mr Sandhwani, for the plaintiff, explained that the plaintiff did eventually consult another doctor, Dr Au Kin Ming, and had further investigations done (MRI scans).  But this was on 2 October 2008, some 1 year and 4 months after he started attending YMT Clinic.

52.  Further, the doctors of YMT Clinic did not refer the plaintiff to see Dr Au.  This consultation appeared to be upon the plaintiff’s own initiative.  If the plaintiff had, by now, finally decided not to trust the “failed” doctors at YMT Clinic, it begs the question why he still returned to YMT Clinic during and, indeed, after the period he attended Dr Au (and Dr Sze).  In fact, he had attended YMT Clinic at least a further 8 times.

53.  In summary, the plaintiff’s case was that he was in constant pain and could not properly walk, sit, sleep, eat, climb stairs, move his neck, clean himself, go to toilet, sneeze, cough, chew and, perhaps more importantly for some, have a “sexual life”, and yet he continued to attend, every 4 or 5 days or so (regular as clockwork exactly on the day his previous sick leave ran out), the same clinic, seeing the same doctors who had been ignoring his concerns and requests, and who had been prescribing the same medications which the plaintiff continued to take obligingly despite evidently not curing him at all.  And this went on for about 1.5 years.  And, even after the plaintiff had consulted various specialists, he still returned to the same clinic at various times.

54.  This is a travesty to anyone’s common sense.

55.  Subsequent to this period, the plaintiff attended Neuro OPD and when he obtained long sick leave periods, his habit of regular medical attendance abruptly stopped (until the long sick leave periods ran out).

56.  Eventually, the plaintiff came under the care of 3 Specialties: Neurosurgery, Orthopaedics and Anaesthetics.  However, after a few follow-ups and investigations, none of the specialists gave any further long sick leaves.  This coincided with the beginning of the plaintiff’s “second round” of repeated attendance at A&E.  He, again, received similar medications for symptomatic relief (and sick leaves) as when he attended YMT Clinic.

57.  The only logical explanation to the plaintiff’s sickness behavior was that he must be aware that, in reality, he was a lot healthier than he claimed to be.  He was far more interested in obtaining sick leaves (which eventually spanned, with some gaps,  a most impressive 45 months, or 3 years and 9 months) than obtaining any “cure”.

58.  As such, I find that the plaintiff could not have suffered any such pains and complaints, or at least to the severity and duration as claimed, and that he must knew this all along.

IV.  Medical and expert medical evidence

59.  In addition, Mr Wong has pointed out numerous passages from various treating doctors’ records raising questions as to the plaintiff’s credibility either by failure to cooperate in physical examinations or by attempting to exaggerate symptoms: eg “Waddell positive”, “come in for sick leave repeatedly why? for months”, “neck range of movement cannot be tested (patient not cooperating)”, “neck: local diffused and exaggerated tender”, “on neck collar: decrease exaggerated tender” etc. The Plaintiff failed to provide any satisfactory explanations to such records under cross-examination.

60.  More significantly, the experts, including his own, were not supportive of his complaints, or at least the severity as alleged: -

a. both orthopaedics experts, Dr Lau Hoi Kuen (“Dr Lau”) and Professor Shekhar Madhukar Kumta (“Professor Kumta”) agreed that there were “florid” signs of exaggerating pain (“pinching skin” sign, Waddells’ signs, inconsistent Straight Leg Raising Test between lying and sitting, positive inorganic signs, absence of muscle spasm etc.), and both agreed that: “he should not have problems with his activities of daily living” which was in stark contrast with the plaintiff’s long list of problems as stated in his Statement of Damages;

b. both neurologist experts agreed that “the entirely subjective symptoms of headache and giddiness as alleged are unlikely to have lasted beyond a few months following the accident”;

c. As for his neck pain, one neurology expert, Dr Kan Yiu Ting (“Dr Kan”), stated: “There is no reason for sprained soft tissue not to recover within a few weeks. The protracted and fluctuating path present by the claimant is inconsistent with the clinical course of sprained soft tissue of the neck. There is no medically valid ground to accept these objective claims as real.”

d. The other neurology expert, Dr Leung Hin Shuen, Clarence (“Dr Leung”), stated: “I believe there is an element of myofascial pain…. but I have reservation to whether it reaches such an extent causing significant limitation of neck movement.”

I will deal with the expert evidence in more details later.

61.  All along, there was a lack of objective medical evidence that supported his alleged severe symptoms. In fact, the objective medical evidence suggested otherwise: “unremarkable” x-rays findings, normal CT and MRI scans of brain, no significant abnormality on MRI scan of cervical (neck) spine, no neurological deficit, no muscle wasting etc.  Many of these examinations and investigations had been repeatedly performed through the years.

62.  Mr Sanhwani urged the court not to ignore the fact that the plaintiff genuinely underwent about 8 invasive injection procedures for pain management.  Perhaps this was the only evidence that was vaguely in the plaintiff’s favour.

63.  However, I am not persuaded that this showed that the plaintiff’s complaint would likely be genuine.  We are not in the Middle Ages and this is not a “Trial by Fire”: the extent of suffering that a person is prepared to go through cannot be conclusive evidence, against overwhelming opposing evidence, that the person’s story must likely be genuine, especially when, in this case, the self-interest of a huge personal gain is at stake.

64.  As such, after perusing all the evidence before me, I have no doubt that plaintiff has been malingering. The history of his medical attendances was a most blatant and, dare I say, comprehensive abuse of the public health system.

V.  Pain, suffering and loss of amenities (“PSLA”)

65.  Both Orthopaedics experts agreed that this was a “sprained neck” and with only “soft tissue” injury.  He may have some degree of residual pain but nothing as severe as he complained, and he should have little or no problem in daily living activities.

66.  Both neurology experts agreed that, for the complaint of headache and giddiness, the head injury was “mild” with no objective evidence of brain injury (no loss of consciousness, no Post-Traumatic Amnesia, no neurological deficit, no radiological/MRI evidence, no neurological signs on physical examination).  Therefore, any “subjective” symptoms, if present, should not last “beyond a few months”.

67.  As for the neck pain, both neurology experts agreed that this was a “sprained neck” with only “soft tissue” injury, again stressing the lack of objective evidence to support the complaint of such extensive and prolonged pain.  Dr Kan opined that: “There is no reason for sprained soft tissues not to recover within a few weeks”.

68.  Dr Leung was slightly more generous for the plaintiff regarding this alleged prolonged pain: he “believed” that “there is an element of myofascial pain….but I have reservation to whether it reaches such an extent causing significant limitation of neck movement”.  Dr Leung later concluded that: “I cannot exclude the possibility of myofascial pain which might be the cause of his persistent neck pain.”  But he qualified his comments by stating that: “This assumption is based on the fact that he had received treatment for myofascial pain and responded positively with pain improvement according to his treating pain physician”.

69.  After assessing all the evidence, however, I have great reservation about this “assumption”: Dr Steven Wong, the attending pain specialist who made the diagnosis of myofascial pain, stated in his medical report that the plaintiff “was hit by a piece of heavy plywood of 15-20kg on the head and then fell onto a platform…in April 2007…complained of persistent headache, neck and low back pain since then.”

70.  After assessing all the evidence before me, I do not agree with this medical history: -

a. As stated in paragraphs 30, 31 and 32 above, the medical history of “falling on his back causing low back injury” has been rejected by both orthodpaedics experts.

b. Further, the plaintiff was complaining of severe and persisting pain.  This complaint (including any “tenderness” on examination and any alleged “deterioration” or “improvement” at any point in time) was entirely “subjective”.  As explained at length above, I find it highly unlikely that the plaintiff’s complaint of pain of such severity and duration was truthful.

71.  I have no doubt that Dr Steven Wong had believed that the plaintiff’s complaint was entirely truthful.  In reliance of such, he had made a diagnosis of myofascial pain and had treated the plaintiff, including the trigger point injection procedures, entirely in good faith.

72.  In the case of Gurung Kamala v Hong Wei Limited, DCPI 1660/2010, I have observed: -

“ 78. However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (e.g. pain and tenderness) are truthful or not.  A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness.

  79. Of course, one would expect a doctor to document such if there were glaringly obvious inconsistencies of complaints which could not be explained by any known scientific medical knowledge.  However, most of the time, in the absence of such inconsistencies, a doctor would most likely record what he or she was told by the patient as the “medical history”.

  80. Thus, the “medical history” of a patient is essentially subjective and may be treated, under the proper circumstances, as no more than hearsay evidence as what the patient has informed the doctor at the time of consultation.

  81. The court may often be in a better position to assess the truthfulness of any subjective medical history in that it can, amongst others, review all available evidence and hear the opposing Counsels “testing” the evidence. “

73.  Therefore, on my finding after assessing all the evidence before me, it is clear that the opinions of Dr Lau, Professor Kumta and Dr Kan are correct in not finding that the plaintiff suffered from myofascial pain at all.

74.  I have considered the cases of Chau Chi Wah v Wong Kwok Ming (DCPI 1059/2007), Leung Yiu Wing v Wong Lan Fun & Others (HCPI 806/2004), Chan Kin Man v Cheuk Siu Tong (DCPI 1970/2008), Chan Siu Youn v Ng Kam Man & Others (HCPI 533/1999), Chan Chun Wa v Wong Chiu Yuen Andrew (DCPI 235/2007) and Wong Kin Kee v Ng Chi Lam (DCPI 555/2009).

75.  I think that a reasonable award for mild sprained neck and mild head injury with symptoms (if present for any length of time at all) lasting no more than a few weeks to a few months should be HK$80,000.

VI.  Pre-trial loss of earnings and MPF

76.  The plaintiff was a casual worker who had only been working for the 1^st defendant for less than a month when the accident occurred.

77.  Much of the court’s time was spent on the dispute regarding the plaintiff’s income at the time of the accident.  The plaintiff claimed that the daily wage was HK$700 and that he worked 26 days a month.  Attention of the court was drawn to the “Report of Injury/Accident to the Third Party and Investigation Report” (the “Investigation Report”) by Paul Y General Contractors Limited which appeared to confirm this.

78.  However, Mr Ip Tai Shing, the Insurance Manager of  Paul Y General Contractors Limited, told the Court that this was a preliminary investigation report which was routinely filled in by the foreman (or whoever was in charge of such on site) promptly after an accident and returned to the claim department where further investigation would be conducted.

79.  It was clearly stated on the Investigation Report: “Please complete the following within 7 days from the date of accident and return it to the claim department”.

80.  More importantly, the salary receipt for the month of March 2007 provided by the 1st defendant clearly stated that the plaintiff was paid HK$650 per day.  He had worked for 8.5 days so he had received HK$5,525.  Similarly, the salary receipt for the month of April 2007 stated that the plaintiff was paid the same daily wages (HK$4,225 for 6.5 days of work).  Both receipts appeared to be signed by the plaintiff himself on 7 May 2007.

81.  Further, in Form 2 submitted for Employee’s Compensation, under Section F “details of employee’s income”, “$5,525” was filled in as the “Employee’s income in the month immediately preceding the accident”.

82.  All these evidence confirms that the daily wage of the plaintiff was HK$650, not HK$700 as he alleged.

83.  As for the average working days per months, the plaintiff could not provide any convincing evidence besides again taking advantage of what was stated on the Investigation Report that he could work 26 days a month.

84.  In Form 2, an assumption was made that the plaintiff would have worked an average of 19 days a month.

85.  Mr Wong took the court through the actual work attendance records of the plaintiff’s colleagues at the relevant time.  He took the average working days of two of the plaintiff’s more hardworking colleagues.  This came to 19.47 days.  Mr Wong submitted that he would accept the average working days per month might be 19.5 days, thus the plaintiff’s income could be HK$650 x 19.5 = 12,675.

86.  Mr Wong further submitted that this was a generous estimation given that the plaintiff’s Inland Revenue Department and bank records suggested that his average income, as calculated from his total income in the one or two years preceding the accident, was more like HK$7,700 to 8,500 per month.

87.  I agree.  The plaintiff was a casual worker and it appeared that he was injured in one of his busier months.  On average, his income should have been much less.

88.  However, I am prepared to accept that the plaintiff earned on average HK$12,675 per month.

89.  As for the sick leave period, I have discussed at length above why I find, as a matter of fact, that the period of sick leave awarded by the treating doctors should not be accepted.

90.  Turning to the expert opinion regarding what would be an appropriate sick leave period, I have also discussed at length above why I do not agree with Dr Leung’s “assumption” of a diagnosis of myofascial pain.  Therefore, I also do not agree with his approval of the period of sick leave given by the treating doctors.

91.  As for the rest of the experts, their opinions did not differ substantially: the range of appropriate sick leave was “no more than 2 months” (Dr Lau), “6 months” (Dr Kan) and “6-8 months” (Professor Kumta).

92.  I accept that an appropriate sick leave period should be no more than 6 months.

93.  As such, given full benefit of the doubt to the plaintiff, the award under this head of claim should be:

a. HK$12,675 x 6 months = HK$76,050

b. 5% MPF contribution = HK$3,802.50

Total = HK$79,852.50

94.  As regards to any “permanent impairment” and “loss of working or earning capacity”, Dr Kan’s opinion was that there were none.  Dr Lau was also in general agreement in that “Mr. Subba should be able to resume his pre-injury job as a construction formwork worker. Any decrease in efficiency at work, due to the mild possible residual pain in his neck, should be minimal.”

95.  Dr Kumta opined that “Mr. Subba may not be able to return to his job unless his perception of severe pain is duly addressed.”  I do not agree because, as explained at length above, I do not accept that the plaintiff had any “severe” pain at all.

96.  I would also add that an independent expert should not simply endorse a patient’s own subjective perception without advancing any of the expert’s own arguments or opinion, or providing any objective evidence in supportive of such an endorsement.

97.  As for Dr Leung, he opined that “I could not be certain on how much his ability is being limited by his (myofascial) pain…..I cannot form a conclusion on the assessment of permanent impairment and working disability.”  I have already explained at length above why I do not accept that the plaintiff has any myofascial pain.

98.  As such, I prefer the opinion of Dr Kan and Dr Lau and I accept there is minimal or no “permanent impairment” and “loss of working or earning capacity”. There is therefore no further award under this head of claim other than the aforesaid 6 months’ pay for sick leave.

VII.  Future loss of earnings and MPF

99.  For the same reasons as explained above, there is no award under this head of claim.

VIII.  Loss of earning capacity

100.  There is “minimal or no loss of working or earning capacity”, so there should be no award under this head of claim.

IX.  Future Medical and Travelling Expenses

101.  None of the experts opined that future medical treatment was required so no award is allowed under this claim.

X.  Special damages

Medical expenses

102.  The plaintiff is claiming HK$43,000 under this claim.  Two schedules of expenses were submitted but only a small fraction of the claim is supported by receipts.

103.  However, even if one assumes that all the items claimed are genuine, the total medical expenses to be allowed for the 6 months’ sick leave (between 13 April 2007 and 13 October 2007) amounts to HK$3,605.

104.  The defendant is prepared to allow HK$22,000 under this head of claim.  I think this is very generous but I would allow this.

Travelling expenses

105.  The plaintiff’s own schedule shows that his travelling expenses for the period between 13 April 2007 and 13 October 2007 amount to HK$821.

106.  The defendants are prepared to allow HK$1,000 and I agree.

Nourishing food

107.  I would allow HK$5,000 under this head.

Care and attention

108.  Both Dr Lau and Professor Kumta agreed that the plaintiff should not have problems with his activities of daily living.  There is no need for anyone to provide “care and attention” to the plaintiff so I will not allow any claim under this head.

Medical Equipment

109.  The claim for crutches and walking sticks are not related to the current claim.  I also do not see any need for hot pads for the alleged neck pain so I will not allow any claim under this head.

XI.  Employee’s Compensation

110.  The plaintiff has been awarded HK$505,854.64 under Employee’s Compensation and this should be deducted from the claim before calculation of any interests.

XII.  Interest

111.  Interest should be calculated as follows: -

(a) 2% on general damages from date of service of the writ to the date of trial

(b) Half judgment rate (4%) on special damages from date of accident to date of trial

112.  However, given that the award is HK$0 after deduction of the Employees’ Compensation award, no interest is awarded.

XIII.  Summary

113.  I summarise the above awards as follows:

HK$
PSLA	80,000.00
Pre-trial loss of earnings and MPF	79,853.50
Future loss of earnings and MPF	0
Loss of earning capacity Future medical expenses	0 0
Special damages	28,000.00
Subtotal (excluding interest)	187,853.50
Minus Employees Compensation Interest	(505,854.64) 0
Total:	0

XIV.  Cost

114.  As a passing comment, I am of the view that there are simply overwhelming objective evidence against both the plaintiff’s claim and his credibility.  In particular, even the plaintiff’s own experts are not supportive of his claim (e.g. on the severity of the complaints).

115.  As such, I do question that why the plaintiff, and those advising him, should bring this damages assessment to court in the first place.  The plaintiff’s case is beyond weak, even if viewed through the rose-tinted glasses of the most hopeful of optimists.

116.  I therefore have no hesitation in giving an Order Nisi for the costs of this action be awarded to the defendants, to be taxed if not agreed in accordance with the High Court scale.