FU CHEE KONG v. SHUN FAI CONSTRUCTION CO LTD AND ANOTHER

1988 No. A1247

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. These proceedings arise out of an accident on 12th August 1985 in which the Plaintiff in the course of his employment fell from a height of some 20 feet and sustained injuries.

2. At the time he was employed as a lathing worker, which I understand to be a carpenter, by the 2nd Defendant the sub-contractor of the 1st Defendant who were carrying out construction at a site In Tai Po.

3. Proceedings were commenced on 12th February 1988 and judgment in default of notice of intention to defend was given against the 1st Defendant on 7th March 1988 and against the 2nd Defendant on 8th March 1988.

4. At the hearing of this assessment, the only matter agreed between the parties by way of damages was a sum of $1,000.00 in respect of the Plaintiff's travelling expenses and the expense he had incurred in purchasing nourishing food.

5. Mr. Bharwaney on behalf of the Plaintiff produced a bundle of documents at the commencement of this hearing, of some 65 pages, all of which had been the subject of notices under the Evidence Ordinance but respect of which two only had been the subject of a counter notice, namely, a document issued by the Census and Statistics Department listing the average daily wages of workers engaged in Government building and construction projects covering the period from January 1986 to November 1988 and a medical report made jointly by Dr. David T. Lee and Dr. A.R. Hodgson dated 16th January 1989. However, at the hearing only the two doctors were called in respect of these documents, the defence making no objection to Mr. Bharwaney referring to the Census and Statistics documents.

6. It was largely undisputed that the Plaintiff sustained his injuries on 12th August 1985 by falling a height of some 20 feet while dismantling for m work on a building site in Tai Po while in the course of his employment.

7. He was taken to hospital where it was discovered that he had one broken rib namely the 7th rib on the right side and a 5 cm laceration to the left lobe of the liver. The tear to the liver was repaired by emergency operation and he was discharged on 27th August 1985.

8. He was readmitted on 5th September 1985 complaining of pain in the right upper quadrant and was discharged again on 11th September 1985, no record of any continuing injury being made. However, it is recorded in the medical report of Dr. H.F. Ho dated 24th November 1986 that be was followed up in Orthopaedic Clinic for his low back pain.

9. As I have said, the injuries themselves are not in dispute the only matter in issue being the continuing disability, if any, suffered by the Plaintiff who maintains that, since the accident, he has suffered from constant low back pain to such a degree that he is prevented from pursuing his previous occupation as a carpenter and is now only able to obtain employment doing lighter work which at present is that of a school cleaner.

10. The two doctors who were the authors of the report dated 16th January 1989, namely, Dr. A.R. Hodgson and Dr. David T. Lee were called on behalf of the plaintiff and Dr. J.P. O'Donovan gave evidence on behalf of the Defendants and produced a report written by himself dated 5th October 1988.

11. I have to say at this stage that the principal difficulty in this case is that there is a severe divergence of opinion on the part of the doctors involved as to the continuing disability of the Plaintiff and his ability to pursue his pre-accident occupation. Doctors Hodgson and Lee maintained that he is totally unable to return to his previous occupation while Dr. O'Donovan maintains that he return to work in the construction field in some occupation.

12. Dr. A.R. Hodgson gave evidence first and said that he had jointly with Dr. Lee examined the Plaintiff on 16th January 1989 having read Dr. Lee's previous reports from his examinations on 11th September 1987 and 11th October 1988 as well as the reports from doctors Ho and Hsu of Prince of Wales Hospital.

13. He said that the Plaintiff had given a history of continuous low back pain from about 20 days after the accident which had continued since then. Dr. Hodgson said the Plaintiff's complaints at the date of his examination were of constant low back pain which varied according to the weather, an assertion which he confirmed was supported by medical knowledge, and attacks of low back pain when trying to lift heavy articles. He complained of no other illnesses or diseases apart from the trouble with his back.

14. Dr. Hodgson said that on examination of the Plaintiff, he was satisfied that the Plaintiff suffered low back pain on straight leg lifting from a lying position, more so with the right than with the left leg, backache on flexion, that is, leaning forwards to try to touch the floor with the fingers, pain on lateral flexion to the right and rotation to the right although lateral flexion to the left was pain free and rotation to the left only gave rise to slight backache. He also found that extension that is, leaning backwards past the verticle, was limited and painful.

15. Dr. Hodgson was firmly of the view that the complaints of pain on these movements were genuine and he said that his view was supported by his further findings which confirmed damage to the lower back and would produce such pain. These were, firstly, tenderness on palpation of the spinous processes at the L4 and L5 level of the spine which had also been found by Dr. Lee and Dr. Hsu on their earlier examinations. He considered that the consistency of this complaint supported the Plaintiff's contention, in it would be difficult for somebody who was malingering or inventing the complaint to pin-point the source of the pain so precisely on each examination. He also found a severe sacro-spinalis spasm and hypertrophy of the sacro-spinalis muscle. This indicates a tensioning of the muscle either side of the spine and a development of that muscle to a greater degree than in a normal person, to protect the spine from shock or injury where there has been or still is a back injury. He demonstrated this by asking the Plaintiff to show his back to the Court and he pointed out the muscle clearly shown on either side of the spine. His last finding which he said supported his diagnosis and the Plaintiff's assertion was of a tilt of the lumbar spine towards the right side which he said was both apparent on outward examination of the Plaintiff 's back and from the X-ray which Dr. Lee had caused to be taken prior to his examination on 11th September 1987.

16. Dr. Hodgson confirmed his diagnosis in his report of a sprained posterior intervertebral joint on the right side at L4/5 of the lumbar spine and he confirmed also his prognosis which, he said, depended on the Plaintiff's future activities, but considered that he will continue much as he is now provided there is no further injury and that he does not engage in heavy manual labour.

17. Dr. Hodgson also said that should any further damage occur by a minor accident or shock to the Plaintiff's spine, it could produce further damage which might require repair by spinal fusion operation.

18. He further said that he disagreed with the conclusion reached by Dr. O'Donovan for the reasons given in his report and he considered that the Plaintiff should not go back to his pre-accident occupation.

19. Dr. David T. Lee then gave evidence and said that he had prepared three reports on the Plaintiff, the last jointly with Dr. Hodgson. He confirmed the contents of those reports and agreed with the opinion of Dr. Hodgson as to the findings consistent with the complaint of low back pain. He considered that the complaints were genuine and said that his experience of similar work in practice with Dr. Hodgson over a long period was sufficient to persuade him that the Plaintiff was telling the truth about his complaints. He confirmed that he was still of the view that the Plaintiff's overall loss of earning capacity was 10% but in respect of his previous occupation which involved heavy manual labour, it was 100%.

20. The Defendants' Counsel Mr. Poon then applied to interpose Dr. J P. O'Donovan before the Plaintiff gave evidence to which the Court agreed.

21. Dr. O'Donovan said in evidence that he had examined the Plaintiff in October 1988 and produced his-report dated 5th October 1988.

22. In that report he said that the Plaintiff experienced low back pa in for the first time in October 1986; however, I am of the view that this must have been the result of a misunderstanding as it is quite clear from the earlier reports, particularly from the hospital where the Plaintiff was initially treated, that he had been complaining of low back pain from a date much earlier and very soon after the accident.

23. Dr. O'Donovan in this report go say that on examination, he found the Plaintiff's trunk flexion to be full, straight leg raising was full and equal and there was no sacro-spinalis spasm. He further said that the X-ray detected no abnormality in the lumbar-sacral spine.

24. His opinion was that he probably has a degree of low back pain but he was clearly of the view that it was not as great a problem as the Plaintiff claims. He agreed with Dr. Lee's overall assessment of a 10% disability due to the accident, but and that he considered that he Plaintiff could resume constructions work, if necessary taking lighter jobs.

25. Although Dr. O' Donovan' s findings appear to disagree totally, particularly in respect of these on examination of the Plaintiff, with the findings of Dr. Hodgson and Dr. Lee, it was apparent from the evidence he gave in Court that many of his findings had been the same as the other doctors but he had not considered them genuine. He was clearly firmly of the view that the Plaintiff was exaggerating his injuries and the extent of the pain, and said that he discounted many of his findings on this basis.

26. In particular, he said that although he had written in his report that trunk flexion was full, the Plaintiff had only reached the same level of flexion, namely 8 to 9 inches from the floor, as he had with Dr. Hodgson, but Dr. O'Donovan considered this to be full i.e. within normal limits for a man of his age and build.

27. He said that on other movements such as straight leg raising, the Plaintiff had complained of pain but he had not recorded this as he did not consider it genuine.

28. Dr. O'Donovan said that although he recorded that there was no sacro-spinalis spasm, there had been such a flexing of the muscle of the back, but he did not consider that this was a spasm, but voluntarily produced by the Plaintiff. Likewise he said that he had observed a tilt of the spine on X-ray but he considered that this too was produced by the Plaintiff standing in a certain way.

29. It is therefore apparent that Dr. O'Donovan's findings, or rather his observations, were very much the same as those of Dr. Hodgson and Dr. Lee, but he puts a very different interpretation on what he has seen. He said that his opinion was based on an experience of back injuries particularly in parachuting injuries, and in his judgment the limitations of movement or pain noticed by him was based on either non-co-operation or intention on the part of the Plaintiff to convince him that he had problems. He said that certain movements made by the Plaintiff indicated that there was no limitation of movement or pain, such as climbing onto his couch for examination when he thought the Plaintiff might consider he was not being observed. He felt that he was pulling the wool over the eyes of the examiners, and overall the degree of injury is not as bad as the Plaintiff is trying to convey.

30. Dr. O'Donovan considered that the Plaintiff was capable of much heavier work than he was now doing and that in any event he considered that there were many jobs on a building site which the Plaintiff as a carpenter could do without risking further injury to his back.

31. The Plaintiff then gave evidence and said that he was aged 52 years, having been born on the 2nd of October 1936. He came to Hong Kong in 1980 having divorced his wife and leaving a daughter being raised by a relations in China and bringing a son with him. His son is now aged 19 and working as an apprentice and his daughter is still studying in secondary school in China.

32. After giving evidence about the accident and his period in hospital he said that he had complained of low back pain from the beginning and had sought treatment for it. He had been given medicine and had been prescribed physiotherapy for which he attended two sessions, but he said the effect on his back was very small. In October 1986 while he was working he said that he of severe pain in his back and took a taxi to hospital for treatment where he had an X-ray. He said that he still gets persistent back pain when he stands for a long time or when he is waiting for a bus, when he has to crouch down to have a rest, he cannot sit still for long he has to move his body from time to time to relieve the pressure and he has to look for a seat when travelling by bus as the movement of a bus when he is standing makes his back very uncomfortable. Prior to the accident he was in good condition and had no illnesses or accidents. He was strongly built and worked long days in the construction site where he was responsible for dismantling frame works and was able to move objects weighing 100 to 200 catties. Prior to the accident he said that he enjoyed walking with his son on holidays and sometimes climbing mountains in China and playing ping-pong as recreation. He can do none of these things now. He said that he now feels himself to be disabled and has become much more pessimistic and negative in his outlook and felt that the accident has been a cruel experience for him.

33. The Plaintiff said that he is now unable to lift anything heavy and he feels that he is only capable of doing his present job which entails watching at the door of the school for part of the day and sweeping the floors of the classrooms in the evening after school. He does not have to lift anything heavy and feels he is able to do this sort of work. He regards the work he did prior to the accident as heavy work which he could not do now.

34. The Plaintiff said that at the conclusion of his sick leave he started to try to find employment by answering advertisements in newspapers and attending interviews but it was not until the end of April 1986 that he first obtained employment in a school where he stayed until the end of December that year. After a short break he obtained further employment in another school where he is still employed and earning $3,540.00 per month.

35. The Plaintiff gave the impression of a man who had clearly been active and hardworking prior to the accident and who had become depressed and to some extent rather sorry for himself following it. However he also appeared to show genuine distress at being unable to support his family in way that he had prior to the accident and I am satisfied having observed his demeanour when giving evidence that he is an honest man who genuinely suffers from the complaints which he described to the doctors.

36. In the light of this I have to consider that the report of Dr. Hodgson and Dr. Lee is the one upon which I should rely in deciding on the Plaintiff's overall disability and his ability to return to work, and I reject Dr. O'Donovan's findings that the complaints were invented or exaggerated by the Plaintiff.

37. In saying this I do not intend any criticism of Dr. O'Donovan who was himself reporting what he believed to be the case, but on a balance of probabilities I consider that his Judgment in this matter was not right.

38. I therefore accept the contention on the part of the Plaintiff that he is unable to return to his pre-accident occupation because of his injury and in the absence of any evidence of any other suitable work which would produce a higher income than that which he is already enjoying, I have to assume that his present employment is the best that he can manage in the circumstances.

39. To deal first therefore with loss of earnings, Mr. Bharwaney on behalf of the Plaintiff has prepared a summary of pre-trial loss of earnings which the Defendants' Counsel has conceded more or less sets out the extent of the Plaintiff's claim pre-trial if I accept as I have done that he cannot return to his pre-accident employment. I therefore propose to adopt the figures supplied by the Plaintiff's Counsel in full and find that the pre-accident loss of earnings comes to a total of $174,987.00. From this must be deducted the sum of $25,560.00 the Plaintiff has received by way of employees' compensation.

40. As to future loss of earnings Mr. Bharwaney has submitted that the Plaintiff would now be earning in his pre-accident occupation the sum of $8,940.00 a month based on the Census and Statistics figures for carpenters any construction sites in November 1988, the latest figures available, earning $343.00 per day, and the evidence being that the Plaintiff worked a 26-day month. From this should be deducted his present earnings of $3,540.00 a month giving a monthly loss of $5,400.00.

41. However, as Defence Counsel has pointed out on $8,940.00 per month the Plaintiff would become liable for salaries tax at the current rate. On a total annual income of $107,280.00 I would expect tax to be payable in the sum of not more than $10,320.00 per annum taking into account his personal allowance and an allowance for one dependant child. This comes to $860.00 per month leaving a net monthly income of $8,080.00. The net loss therefore after deducting his present earnings comes to $4,540.00 per month.

42. I now come to the question of the multiplier to be adopted.

43. The Plaintiff's Counsel has suggested a multiplier of 8 bearing in mind that the Plaintiff is presently aged 52 years and could expect to work at least until he is aged 60 and possibly up to age 65, although I have to say I have some doubts as to the latter figure in view of the heavy nature of the employment he was engaged in.

44. Counsel for the Defendants has suggested that multiplier of 7 is more appropriate and both Counsel referred me to a number of cases in Hong Kong Law Journal.

45. Taking all these circumstances into account and the cases to which I have been referred, I am of the view that a multiplier of 7 would be appropriate in this case.

46. The loss of future earnings therefore I assess at a total of $381,360.00, being $4,540.00 x 12 x 7.

Pain, Suffering and Loss of Amenities

47. Mr. Bharwaney on behalf of the Plaintiff has urged me to consider that the Plaintiff's injuries fall within the serious injury category as laid down in the case of Lee Ting lam v. Leung Kam-ming, (1980) H.K.L.R.657 on the basis that the Plaintiff suffers constant pain the injury has had a serious effect on his life style, and the injuries are similar to those sustained by the Plaintiff do the case of Lee Ping-sum v. Chan Wai-tong & others (1985) 1. A.C. 446 where it was held by the Court of Appeal that such injuries came at the bottom of the serious injury category.

48. Mr. Poon on behalf of the Defendants has urged me to say that the injuries do not in fact reach that category, the doctors being agreed on an overall impairment of 10% for the Plaintiff, and the Plaintiff in Lee Ping-sum's case having a minimum of 15% disability being placed at the bottom of the category.

49. I am aware that the guidelines laid down in Lee Ting-lam are only guidelines and I am also aware that the minimum of the serious injury category has now been raised to $135,000.00 by the Court of Appeal in the case of Lau Chi-ping and Hoi Kong Ironwares Godown Co. Ltd. Civil Appeal No. 12 of 1988. I am of the view that the injuries in this case, although having an extremely serious effect on the Plaintiff's ability to return to his pre-accident occupation, are not such as to bring them into the rage of serious injuries as defined in the cases to which, I have referred.

50. I therefore assess the damages under this heading at $110,000.00.

Interest

51. I was addressed at some length by both Counsel on the question of interest on special damages. Mr. Bharwaney has claimed that the proper rate of interest is now 5% per annum basing this assertion on a decision of Deputy Judge Kaplan, Q.C. in High Court Action 3036 of 1986 decided on 9th February 1989.

52. However, it is clear from the cases quoted to me that interest has varied considerably over the last few years from 3 1/16% to 44½% with only one decision of 5%.

53. I consider that a proper rate of interest therefore in this case is 4% on special damages from date of accident.

54. Interest on damages for pain and suffering and loss of amenities is conceded by both parties at 2% from date of writ and interest is therefore awarded accordingly.

Summary

55. There will be interest on special damages and general damages as set out above and the costs of this assessment will be met by the Defendants to be taxed if not agreed, with a certificate for Counsel.

The Plaintiff's own costs will be taxed in accordance with Legal Aid Regulations.