HCPI 354/2019
[2022] HKCFI 970
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 354 OF 2019
________________________
BETWEEN
CHAN SIU LUNG
Plaintiff
and
YIP KAM SHUI
1st Defendant
MAJESTIC PLUMBIN ENGINEERING LIMITED
2nd Defendant
HIP NING CONSTRUCTION COMPANY LIMITED
3rd Defendant
________________________
Before: Master Kot in Court
Date of Hearing: 6 & 7 December 2021 and 18 January 2022
Date of Judgment: 4 April 2022
_________________________________
ASSESSMENT OF DAMAGES
_________________________________
Background
1. The Plaintiff was a plumber employed by the 1st Defendant (“Mr Yip”) to work at a construction site (“the Site”) which was under the control and management of the 2nd and 3rd Defendants (“D2” and “D3” respectively). D2 was a sub-contractor of D3 who was the principal contractor. D2 sub-contracted the plumbing work of the Site to Mr Yip.
2. On 12 October 2016, whilst performing welding work of water pipes underneath the ceiling of the Site, the Plaintiff fell from the unguarded hop-up platform, landed on his occiput resulting in serious head injuries and body injuries (“the Accident”).
3. Liability has been admitted by the defendants and by a consent order dated 25 November 2020, interlocutory judgment on liability has been granted in favour of the Plaintiff leaving damages to be assessed.
4. This is a hearing for assessment of damages.
Plaintiff’s Evidence
5. The Plaintiff adopted his witness statement dated 29 September 2020 and his supplemental witness statement dated 12 November 2021 as his evidence-in-chief.
6. The Plaintiff was born on 2 May 1987 and was 29 years old at the time of the accident. He is now 34.
7. Upon admissions to the Accident & Emergency Department (“A & E”) of Queen Elizabeth Hospital (“QEH”), the Plaintiff was found to have sustained right epidural haematoma, fractured skull, abrasion over both knees and hip injury. He was admitted to Neurosurgery Department and emergency operation of craniotomy was performed. The Plaintiff recovered gradually afterwards and was discharged on 19 October 2016. He attended regular follow-up for his head injuries and was subsequently diagnosed as suffering from post-concussion syndrome and adjustment disorder and was treated by psychiatrist. The Plaintiff has attended physiotherapy treatment at Tseung Kwan O Hospital (“TKOH”) and occupational therapy at QEH and United Christian Hospital (“UCH”). The Plaintiff was granted sick leave from day of Accident to 25 February 2021, a total of 1598 days.
8. The Plaintiff had been a plumber for 7 years and worked as an employee of Mr Yip with daily wage of $1,350 for about half a year earning an average monthly salary of $32,400 before the Accident. But out of the daily wage, he was only paid $1,215 since 10% (ie $135) was deducted towards the Mandatory Provident Fund (“MPF”) even though it was said that each of the employer and employee is supposed to pay 5% as MPF. And according to his knowledge, there had been an upward salary adjustment for plumber after the Accident of not less than 13%, hence if not for the Accident, his salary should be not less than $36,612 per month and he should be able to work till 65.
9. The Plaintiff confirmed in his testimony that his condition had improved after the various treatment but still continues to receive follow up consultations at the neurosurgical clinic of QEH since he is still troubled by:
a. intermittent headache of a sharp character and of moderate intensity;
b. intermittent dizziness of severe intensity, associated with disequilibrium, vertigo and nausea;
c. forgetfulness and poor concentration;
d. poor temper control and irritability;
e. sleep disturbance and nightmare;
f. lower limbs weakness occasionally; and
g. phobia of height.
10. It is also the Plaintiff’s evidence that he cannot return to his pre-accident job as a plumber since he cannot overcome the phobia of working at height. The welding and installation tasks as a plumber could not be done on firm ground nor shared by other co-workers and it is impossible for a plumber to avoid working at height. Even if he is provided with a proper working platform, he is still required to raise his both hands to perform welding at ceiling level.
11. He had tried to find job as kitchen worker but had not been successful until 28 September 2021, and was fired after working for 4 days since he was not vaccinated for Covid-19. The monthly salary for this job is $15,000. From May 2021 to November 2021, he worked as a food delivery worker with Uber Eats and Deliveroo as well as taking up a part-time job at the Book Fair for 3 days, earning a total of $27,304.73. In November 2021, he had secured the licence to work as a security guard but had not been able to secure any employment yet.
12. At this hearing, the Plaintiff claimed for:
a. PSLA
HK$
b. Pre-trial Loss of Earnings
2,097,803.00
c. Loss of Future Earnings
5,541,056.21
d. Loss of MPF
381,942.96
e. Loss of Earning Capacity
200,000.00
f. Special Damages (agreed)
31,165.00
g. Costs of future treatment (agreed)
10,000.00
Total:
7,264,434.17
The Defendants’ Evidence
13. Mr Yip is the only witness for the Defendants. He adopted his witness statement dated 27 August 2020 as his evidence. He said that the Plaintiff was employed on daily wage basis at $1,350 and from May 2016 to September 2016, the average monthly salary of the Plaintiff was $27,220. It was agreed by the Plaintiff that the daily wage included the $100 to be contributed towards the MPF by both the employer and the employee and this is the practice for all employees engaged by Mr Yip. As the employer of the Plaintiff, Mr Yip had paid for the MPF as well during the Plaintiff’s sick leave from November 2016 to July 2017, in the total sum of $22,800.
14. Mr Yip also said that it is rare for D3 to allow construction site workers to work beyond 60 and there were not too many workers over 60 working in other construction sites as well. As a plumber working at construction sites, it is normal that there will be a break between works in different sites. Because of the social unrest in mid-2019 and the Covid-19 pandemic, work at many of the construction sites had ceased since end of January 2020 and the salary of plumber had reduced from $1,550 to $1,450 as recommended by the trade union. Mr Yip also agreed that a plumber must work at height and if a plumber told him that he had dizziness, he will not dare to employ him in the first place.
The Expert Evidence
15. The Plaintiff was jointly examined by medical experts of 3 disciplines, namely:
a. neurology experts, Dr Yu Yuk Ling for the Plaintiff (“Dr Yu”) and Dr Choa Brian Hormus George for the Defendants (“Dr Chao”) on 13 January 2020;
b. orthopaedic experts, Dr Chan Wai Fu for the Plaintiff (“Dr Chan”) and Dr Ko Put Shui Peter for the Defendants (“Dr Ko”) on 16 June 2020; and
c. psychiatric experts, Dr Cheung Hung Kin for the Plaintiff (“Dr Cheung”) and Dr Hung Bing Kei Gabriel for the Defendants (“Dr Hung”) on 27 July 2020.
16. The respective opinion of the neurology experts is summarized hereinbelow (B/158-185):
Dr Yu
Dr Choa
Diagnosis
Agree that the Plaintiff sustained a severe head injury with uneventful recovery and has reached maximal medical improvement.
Residual Disabilities
Some of his symptoms and signs were not corroborated by objective evidence. There was some exaggeration of his disabilities during the assessment. Although there was some exaggeration, it does not mean that all his symptoms are not genuine or that he does not have any neurological or psychiatric impairment. Assessed at 6% for PIWP.
Found inconsistencies in his history regarding frequency of symptoms and what was depicted in the surveillance contrasts strongly with his performance presented at the joint examination. The only possible conclusion is that, physically at least, the Plaintiff has made a full recovery from his injuries. Assessed at 1% of PIWP.
Work Potential & Loss of Earning Capacity
Able to return to his pre-accident job, work capacity compromised. Should preferably not work at unprotected heights. LOEC = 7%.
Should be able to return to his pre-injury work with no long-term loss of earning capacity.
Sick Leave
Agree the appropriate duration of sick leave should be 1 year.
Surveillance evidence
3 September 2019 – Plaintiff with his girlfriend, his gait was normal showed no balance problems or veered to either side. Used no walking aid, seen chatting and smiling and apparently speaking at a normal tempo. Seen to use chopsticks dexterously.
17. The respective opinion of the orthopaedic experts is summarized hereinbelow (B/186-209):
Dr Chan
Dr Ko
Diagnosis and Causation
Possible right hip injury, could be a linear non-displaced right hip fracture or less so right hip soft tissue contusion. As for back pain, probably unrelated to the Accident.
No orthopaedic and musculoskeletal injury arising from the Accident. For complaint of on and off back pain, no definite evidence or information to show any causal relationship with the Accident.
Treatment Progress
Overall feature compatible with a reasonable recovery from right hip injury. No indication for further treatment and investigation.
No orthopaedic and musculoskeletal injury so no comment.
Sick Leave
Sick leave granted for his other injury should cover the recovery of his right hip injury which should have recovered within 1 year.
No sick leave required for any orthopaedic or musculoskeletal injury or condition.
Resumption of Duty
Though demonstrated some right lower limb weakness when getting up from squatting, this weakness should be more related to the aftermath of his other injury. Assessed whole person disability at 1% for the right hip injury.
No orthopaedic & musculoskeletal injury, condition or residue that would prevent the Plaintiff from resuming his pre-accident job.
Surveillance evidence
3 September 2019 – Plaintiff walked with normal gait without walking aids in the normal stable manner with normal speed and pace. Talked to others in the usual normal manner and showing his smiling face. Neck movement normal and smooth. Taking meal in a restaurant in the usual normal manner. Went up escalator and walked downstairs without holding on support or handrails in a stable manner.
18. The respective opinion of the psychiatric experts is summarized hereinbelow (B/210-250):
Dr Cheung
Dr Hung
Diagnosis and Causation
Suffered from Postconcussional Syndrome which is fully attributable to and directly caused by the Accident.
Treatment Progress
Has reached MMI and need further treatment for at least 5 more years from now.
Not yet reached MMI. Should continue with psychiatric and psychological treatment for coming 2 years at intervals of 3 months.
Sick Leave
All previous sick leaves granted are justifiable, given the combined effect of his physical and mental symptoms.
Sick leave on psychiatric grounds from 17 February 2017 to 17 August 2018 is deemed appropriate.
Prognosis
Defects are permanent by now and further substantial improvement is unlikely.
Major stressor is his financial condition, psychiatric condition will improve further with the resolution of the litigation. Prognosis is favourable.
Resumption of Duty
Should be able to resume his pre-accident employment as a plumber, work capacity compromised.
Capable of resuming his previous job from a psychiatric perspective, as long as he does not have to work from heights. In the long term, as he overcomes his fear of standing on ladders, he should be able to resume his pre-Accident job in full capacity.
Surveillance evidence
Having viewed the surveillance video recording, it does not particularly assist in determining his psychiatric condition. Observed mood in the video recording is similar to his observed mood in the joint examination. Overall, there is no sufficient information from the surveillance video to make any conclusion on his psychiatric condition.
Hip Injury
19. There is a dispute as to whether the Plaintiff did sustain hip injury in the Accident.
20. According to the medical report prepared by Dr So Kit Ying of A & E of QEH dated 30 November 2018, whole body CT scan had been performed on the Plaintiff on admission and apart from the head injury, it was also recorded that there was “radiolucent line at right iliopubic region suspicious of old fracture” (B/140). The discharge summary of QEH (“Discharge Summary”) also recorded that “CT showed Line over pelvis, 3D reconstruction and O & T consulted, not #” (B/861). On the same document, “#” can be understood to mean “fracture” since the right temporal linear fracture was described as “right temporal linear #”. So, the Discharge Summary confirmed that orthopaedic had been consulted and found no fracture over the pelvis.
21. Based on the reports of A & E of QEH, the Defendants contended that there should be no injury to the hip of the Plaintiff as a result of the Accident.
22. However, Dr Chan, the orthopaedic expert for the Plaintiff, having read the medical notes of Dr Harry Lee Hing Yin of the Department of Surgery of QEH dated 12 October 2016 (at 2155hrs) which recorded that “CT formal report a/v … 3. Linear fracture at right iliopubic region…CT film reviewed – Right iliopubic bone linear #, best appreciated on coronal cut, non-displaced” (B/891), came to the conclusion that there should be a non-displaced right hip fracture at right iliopubic region of pelvic bone. However, Dr Chan also accepted that Dr King Him Tim Chui had a different finding on 13 October 2016 which reads “CT reviewed: no pelvic # seen; no spinal #, active 4 limbs movement seen” (B/894).
23. There is also a record by Dr King Him Tim Chui on 12 October 2016 (at 2320hrs) which recorded that “CT reviewed: a linear radiolucent line seen … at right ilium near pelvic brim are less likely to be fracture… contacted radiographer for 3D reconstruction of pelvis” (B/891). This must be the 3D reconstruction referred to in the Discharge Summary which confirmed there was no pelvic fracture.
24. Having considered all the above medical records, I agree with the Defendants that the Plaintiff had not suffered any hip injury in the Accident.
Monthly Income & MPF
25. It is not in dispute that $1,350 was the daily wage agreed between the Plaintiff and Mr Yip. There is a dispute as to the amount of MPF contributions to be deducted and what should be accepted as the average working days per month for the Plaintiff.
26. On the issue of MPF contributions, as revealed from the testimony of the Plaintiff and Mr Yip, it is not in dispute that the daily wage of $1,350 is inclusive of the MPF contributions from both the Plaintiff and Mr Yip. The question is how much is the MPF contributions, the Plaintiff said it’s 10% of his daily wage (being 5% each for employer and employee) whilst Mr Yip said it’s only $100 (ie $50 each for the Plaintiff and Mr Yip).
27. I found Mr Yip’s evidence in this regard is supported by the MPF Statements (B/273-293) and the salary slips (B/122-126) which showed that $100 per day has been deducted from the salary as the MPF contributions from employer and employee at $50 each and should be accepted. The MPF contribution is not 10% each month as alleged by the Plaintiff. So, $1,350 daily wage should be considered as Plaintiff’s daily earnings inclusive of MPF contributions and $1,300 without the employer’s contribution.
28. However, the MPF Scheme Ordinance (Cap 485) stipulated a prescribed percentage for the contributions of employer and employee and the applicable percentage for the Plaintiff in this case should be 5%. Even though the Plaintiff and Mr Yip had agreed to a contribution of $100/day, such arrangement being not in line with the legal entitlement cannot be endorsed. In this assessment, I agree with the Plaintiff that 5% of MPF contributions should be allowed for any award of loss of earnings for the Plaintiff.
29. The Plaintiff said that since he had been working consistently on 6 days per week and on average for 24 days per month before the Accident, this should be adopted in the calculation of his average monthly earnings. The Defendants contended that 22 days per month would be a more realistic number following the findings in Lo Wai Shing v Lik Sang Engineering Company Ltd HCPI 15/2012, DHCJ Hartmann (unrep, 5 November 2013) and Chan Leung Sing v Ng Keung & Anor HCPI 3/2012, Recorder Paul Shieh (unrep, 27 August 2015).
30. The authorities relied upon by the Defendants can be distinguished in that the court had adopted 22 days as the average working days in those cases since there was no evidence before the court to determine the same. In Lo Wai Shing , “the plaintiff had only just commenced working for the defendant at the time of the accident and was working on a casual basis only” (at §93) and in Chan Leung Sing , “the plaintiff has not presented a jot of documentary evidence about his past earnings” (at §64). Without evidence of past earnings of the Plaintiff, the court is forced to adopt what is being considered a realistic number in an uncertain scenario.
31. In this case, we have evidence of the past earnings of the Plaintiff who had been employed by Mr Yip since 26 May 2016 and had worked for at least 4 full months before the Accident, 25 days in June, 23 days in July, 24 days in August and 24 days in September. Mr Yip also agreed under cross-examination that the Plaintiff worked 6 days per week and has regular day off on Sunday. I agree with Ms Cheng for the Plaintiff that the Plaintiff worked at least 24 days per month is established by evidence both from the Plaintiff and Mr Yip.
32. Given my ruling above, the average monthly earning of the Plaintiff at the time of the Accident (ie October 2016) without the employer’s contribution towards MPF should be $31,200 ($1,300 x 24).
33. As for the Plaintiff’s contention that there should be a pay rise of not less than 13%, I accept there is an upward adjustment of the daily wage for plumbers as revealed from both the statistics from the Census & Statistics Department (“Census Statistics”) and the suggested payroll issued by the Hong Kong Construction Industry Employees General Union (“Trade Union”) (B/601-612). And given the figure from the Census Statistics runs to August 2021 and that from the Trade Union runs to October 2020, the factor of the social unrest and the pandemic should have been reflected in them. From the agreed daily wage of $1,350 for the Plaintiff at the time of the Accident in 2016, it is apparent that Mr Yip had been adopting the daily salary recommended by the Trade Union. I found the recommended daily salary of the Trade Union should also be adopted to reflect the increase in salary.
Reasonable Sick Leave
34. There is the argument as to what should be the reasonable sick leave for the Plaintiff. The Defendants adopted the opinion of Dr Hung and contended that the longest sick leave should be up to 17 August 2018, ie 22 months from the date of the Accident. The Plaintiff however said that all the sick leave granted by the treating doctors for the period from date of Accident to 25 February 2021 (a total of 52 months) should be allowed instead.
35. It is trite that the sick leave certificates are not binding on this court. Dr Cheung is endorsing the sick leave period granted by the treating doctors on the ground that “if a person has 3 minor illnesses which individually does not warrant a SL, adding together they could justify a SL. With this line of thinking, all the previous Sick Leaves which have been granted are in my opinion justifiable, as the combined effect of his physical and mental symptoms” (B/231).
36. Such an opinion of Dr Cheung is in direct contradiction to the opinion of the neurology and orthopaedic experts who are of the opinion that reasonable sick leave for their discipline should last for 1 year at most. Dr Cheung had not offered any explanation as to why the treating doctors’ decision in the grant of sick leave should prevail over those of the experts of the other 2 stream. In any event, Dr Cheung is only qualified in rendering his opinion in psychiatry and according to the Agreed Sick Leave Schedule (B/403-405), the treating psychiatrists had only granted sick leave for the period from 5 January 2018 to 17 August 2018 and the rest were given by the neurosurgeons. It is not Dr Cheung’s opinion that longer sick leave should be granted to the Plaintiff due to his psychiatric condition. I do not accept the opinion of Dr Cheung as far as the period of reasonable sick leave is concerned since it is not in line with the opinion of the other experts and without basis.
37. According to the medical notes and records, the Plaintiff was still receiving treatment after 17 August 2018, this includes:
a. physiotherapy ended on 2 July 2019 (B/1025-1041);
b. psychiatric treatment ended on 23 July 2019 (B/792 & 1039);
c. clinical psychology therapy which ended on 30 July 2019 (B/1042-1046); and
d. occupational therapy ended on 10 April 2018 (B/773) with last work rehabilitation assessment at QEH done on 23 August 2019 (B/1022-1024).
38. The sick leave for the Plaintiff were mainly granted by the neurosurgical clinic. The treating neurosurgeons only relied on the subjective complaint of the Plaintiff of dizziness and headache and just prescribed the same medicine for such post-concussion symptoms. However, the neurology experts in this case had, after considering all medical records and notes including those of the treating neurosurgeons as well as relying on the findings in the joint examination, come to the conclusion that the reasonable sick leave for the Plaintiff should only be 1 year.
39. As revealed from the medical notes at the consultation with the treating neurosurgeon on 21 December 2017, sick leave was only granted to the Plaintiff till his next follow up with the psychiatrist, ie to 5 January 2018 (B/837-838). It is apparent from such record that by January 2018, the treating neurosurgeon was already of the opinion that no further sick leave should be granted to the Plaintiff as far as neurosurgery is concerned. This is more or less in line with the neurology experts’ opinion that sick leave of 1 year was appropriate for the Plaintiff. I failed to see why such opinion of the neurology experts should not be accepted and in view of this, the sick leave given by the treating neurosurgeons cannot be blindly endorsed.
40. At the consultation with the psychiatrist on 5 January 2018, the Plaintiff told the psychiatrist that sick leave from the neurosurgeon ended on that day and as a result, the psychiatrist granted sick leave till his next follow up (B/804). And at the consultation on 24 April 2018, the Plaintiff had told the psychiatrist that “neurosurg did not grant him SL anymore and asked him to obtain SL here” (B/798).
41. Dr Hung opined that the sick leave from psychiatrists should end by 17 August 2018 since the psychiatric clinic records on same date showed “his mood was stable and there was no mention of his irritability affecting his daily life” and “from that point onwards, he should not have required any more sick leave” (B/230).
42. The record for the consultation on 17 August 2018 (B/796) showed “Nil abnormal experiences” and “Nil recent stressors” but this is only true for that occasion. One can see that it is also stated therein that “M/S similar” and his last consultation record dated 6 July 2018 showed “M/S fluctuated” and have all kinds of “abnormal experiences” including low mood, easily irritable, threw things at home, poor sleep and nightmare etc (B/797). And from the record for the next consultation after 17 August 2018 (ie on 12 October 2018), improvement was seen but still recorded to be “M/S similar” (B/795). From that point onwards, there was marked improvement on the Plaintiff, when he could walk unaided at the consultation on 4 December 2018 (B/794) and for the consultation on 23 July 2019, the Plaintiff was recorded to have “M/S stable”, “improving trend”, “Sleep better now, not require imovane now” and “fragmented sleep, occ nightmares, but able to fall back into sleep promptly” and with no complaint of headache (B/792). I found the Plaintiff’s condition should have been stable by 23 July 2019 instead of 17 August 2018 and should require no further sick leave from then onwards.
43. It is not in dispute that another 3-month sick leave should be allowed for the Plaintiff to look for alternative employment, I found the sick leave should end by 11 October 2019, ie a total of 36 months.
Can the Plaintiff resume his pre-accident work
44. The next question is whether the Plaintiff could return to his pre-accident work.
45. It is the Plaintiff’s case that as a plumber, he is required to move heavy construction materials, to handle dangerous equipment, to fix various sizes and lengths of water pipes that are bulky and may weigh few hundred pounds and welding and installation tasks have to be performed on his own. He cannot resume his pre-accident work because of the sudden onset of headache and dizziness brought by the post-concussional syndrome, the risks of post-traumatic epileptic seizure and the fear of falling from height place him in a perilous situation and did not match the job requirement as a plumber.
46. The residual impairment of the Plaintiff of occasional headache and dizziness as well as fear of height are subjective complaints of the Plaintiff without any objective evidence in support. This turns on the credibility of the Plaintiff. Having considered all the evidence, I do not find the Plaintiff to be a reliable witness in this regard.
47. Both neurology experts had made comments on the reliability of the complaints of the Plaintiff. Dr Yu, the Plaintiff’s neurology expert found “some of his symptoms and signs were not corroborated by objective evidence. Several of the mistakes he made in the MMSE were unconvincing…His MMSE score in February 2017 was normal at 29/30 but the score was reduced to 25/30 at this assessment…his performance on this occasion was worse than that in February 2017 is therefore not consistent with the natural history of head injury. At this assessment, he veered to the right side upon walking even though he had no limb weakness and ataxia. However, in the surveillance video, he walked normally and independently without veering to the right” and “there was some exaggeration of his disabilities during the assessment” (B/170).
48. Dr Choa, the Defendant’s neurology expert found “there were inconsistencies in his history regarding the frequency of symptoms such as headache and dizziness and the number of tablets he took for them. Segmental examination revealed no focal abnormalities in his cranial nerve territory or in his limbs…The videos taken …clearly showed … no gait impairment…His balance was normal, allowing him to weave through crowds and to walk at a normal pace as well as negotiate steps even while looking at his smartphone…These findings contrast strongly with the picture he presented to us” (B/171).
49. Even though Dr Yu qualified her opinion by saying that “it does not mean that all his symptoms are not genuine or that he does not have any neurological or psychiatric impairment consequent upon the severe head injury” (B/170-171), the fact that the Plaintiff tended to exaggerate his symptoms or likely to be a malingerer cannot be ignored and should reflect on the findings of the extent of his residual impairment.
50. The Plaintiff was captured in surveillance on different occasions, 3 times in September and October 2019 and on another 3 occasions in February and March 2021. As depicted in the surveillance video and agreed by the Plaintiff under cross-examination, he could walk with normal gait like ordinary people without any balance problem or veered to either side or any weakness in the lower limbs. He boarded/alighted from public transport and walking up/down long flights of stairs without any difficulty or any panic. And he could even manage to look at his mobile phone all the time when walking.
51. Even though the Plaintiff tried to explain that he was finding his way by GPS on the phone, in any event if he could manage to deal with the GPS at the same time when he was walking swiftly, it was apparent that he should be symptom free. And as observed by the orthopaedic experts, in the surveillance video taken on 26 October 2019, the Plaintiff could, “whilst walking upstairs, simultaneously manipulating his mobile phone in multiple steps without holding on handrails or support” (B/198). This is utterly inconsistent with someone complained of having occasional headache, dizziness and fear of height.
52. It is not in dispute that the Plaintiff brought along a walking stick to the 3 joint medical examinations by the experts. I agree with the Defendants that the Plaintiff was trying to impress the doctors on these occasions. It was recorded in the consultation summary of the neurosurgical clinic as early as since 30 July 2018 (B/840) and the consultation notes of psychiatrist as early as since 4 December 2018 (B/794) that the Plaintiff was able to walk unaided. There is nothing to explain why would there be a deterioration of his condition at the time of the joint examinations which were held in 2020 except the likelihood of malingering and exaggeration as observed by some experts in the joint examination.
53. And what depicted in the surveillance videos taken in 2019 also show that the Plaintiff could walk up and down stairs and escalators unaided without any apparent difficulty even when he was unaccompanied. And whilst he was walking, he could manage with using his mobile phone simultaneously. He had even been depicted in the surveillance video that he could manage with 2 mobile phones at the same time for over an hour at a park on 25 February 2021. This supports the observation by the neurology experts that “there was no indication that he was troubled by headache, neck pain, dizziness or noise on the crowded streets” (B/169).
54. It is the evidence of the Plaintiff under cross-examination that he required the walking stick whenever he had headache and felt dizzy. Whilst the headache and dizziness only came occasionally, the Plaintiff would not be able to predict when it will come. If he can manage to go out without the walking stick, the only reasonable inference to be drawn is that he no longer had any headache or dizziness or it was so mild that he could confidently go out without any walking stick and there is no longer any worry of “in case”.
55. It is also the evidence of the Plaintiff that he had been working as a food delivery worker which required him to go on foot alone to different places. One wonders how can the Plaintiff manage with such job if he still suffered from the intermittent headache and dizziness of the extent described by him. And why should the Plaintiff not worry about his condition or the likelihood of fainted when he went to such delivery work. All these showed that the Plaintiff must have exaggerated his condition of headache and dizziness which, even if still persisted, is of a very mild degree that would not affect his mobility and daily living.
56. The Plaintiff had also told the neurology experts that he “has a sense of swelling at the right temporal region during eating” (B/164) and under re-examination, he added that the swelling caused great prickling pain at the temporal region. Yet, he had never told the neurology experts of such pain and as depicted in the surveillance video, even if there was swelling at the right temporal region, such swelling did not appear to affect his eating nor did he ever show any discomfort or pain during his meal. I do not accept that the swelling at the temporal region did cause the Plaintiff any pain that affects him in any way.
57. The Plaintiff had undergone 4 work rehabilitation assessment by the occupational therapist with the following findings:
a. On 15 March 2017, the occupational therapist found personal issue (including work capacity and functional performance), ie frequent dizziness, walk with stick and deconditioning are the major barrier for the Plaintiff to return to his previous job (B/755-757);
b. On 8 June 2017, the occupational therapist found the Plaintiff not ready to return to his previous work mainly limited by general deconditioning and psychosocial component (B/758-761);
c. On 3 November 2017, the occupational therapist found the working capacity of the Plaintiff was not fit for previous work, mainly limited by frequent dizziness and headache and suggested change job (B/762-765); and
d. On 23 August 2019, the occupational therapist found personal issue (including work capacity and functional performance), ie fear of re-injury and anxious for working in construction site, fair in delayed recall and reduced in endurance are the major barrier for the Plaintiff returning to his previous job (B/1022-1024).
58. The above assessment by the occupational therapists were done in 2017 and 2019 whilst the Plaintiff was still on sick leave. The therapists did not have the benefit of seeing the Plaintiff in action in his daily life as depicted in the surveillance videos and observed by the experts. The therapists could only assess the Plaintiff’s current functional capacity level then. However, as time goes, his condition should have improved as revealed from the surveillance videos. Furthermore, during assessment by doctors or therapists, the results depends a lot on the voluntary effort of the injured. A more reliable assessment should be based on the nature of injury and objective findings as demonstrated by the experts in the Joint Medical Reports.
59. Both Dr Yu and Dr Choa found the Plaintiff should be able to return to his pre-injury work and the only difference in their opinion is whether the Plaintiff’s working capacity was compromised. Even though Dr Yu accepted that there was some exaggeration of disabilities on the part of the Plaintiff, she assessed the Plaintiff’s permanent impairment of the whole person at 6% and have not demonstrated in the report as to how the exaggeration had been taken into account. From my ruling above on the severity of the headache and dizziness, I accept the opinion of Dr Chao that these “symptoms…must be mild as neither was in evidence on the three occasions when the videos were taken, I assess a permanent impairment of his person of 1%” (B/172).
60. In any event, it is the opinion of Dr Yu that “because of the dizziness and the risk of post-traumatic epileptic seizures (“PTES”), he should preferably not work at unprotected heights” (B/175). Dr Yu further qualified his opinion on the risk of PTES in that such risk “has 2 practical effects on the Plaintiff: (a) the jobs he should preferably avoid; (b) the medical expenses should PTES develop” (B/174). For the jobs preferably avoid, it must be referring to work at unprotected heights mentioned by Dr Yu. I agree with the Defendants that the Accident happened due to the use of an unguarded pop-up platform at the material time and normally there should be protections such as proper working platform. Under normal circumstances, the chance of the Plaintiff working at unprotected heights should be none, hence the effect of PTES on preferred job is neutralised. As for the medical expenses should PTES develop, this is irrelevant as far as whether the Plaintiff can resume his pre-accident job is concerned.
61. As for the orthopaedic experts, there is no dispute that there is no permanent impairment on the Plaintiff from their perspective that would prevent the Plaintiff from resuming his pre-accident job. Given my findings that the Plaintiff did not suffer any hip injury, there should be no residual impairment in the perspective of orthopaedic. However, even if I am wrong in the findings of the hip injury, I still found no orthopaedic impairment in the Plaintiff. The assessment of WPI of the Plaintiff at 1% by Dr Chan was made on the qualification that “allowing that Mr Chan might have more residual symptoms than usual” (B/207). This is apparently inconsistent with Dr Chan’s own findings that the Plaintiff required no further treatment or investigation of his right hip injury which should not hinder his activities of daily living as well as for sports and recreational activities (B/204 & 205). The assumption by Dr Chan of “more residual symptoms” is apparently without basis. I accept the opinion of Dr Ko that the Plaintiff showed no orthopaedic condition or residue that would prevent the Plaintiff from resuming his pre-accident job as a plumber.
62. It is agreed between the psychiatric experts that the Plaintiff needs to continue with his psychiatric and psychological treatment but the Plaintiff should be able to resume his pre-accident job. I do not agree with Dr Cheung that the Plaintiff had already reached maximal medical improvement since this is inconsistent with his own opinion that the Plaintiff still required further treatment for another 5 years. If no further improvement is expected on the Plaintiff, why would such a lengthy treatment be required? I preferred the opinion of Dr Hung on the assessment of impairment and loss of earning capacity which is thorough and supported with reasons. I accept Dr Hung’s opinion that the Plaintiff had not reached maximal medical improvement and the only symptom which impaired the Plaintiff’s ability to work is his fear of height but this can be overcome in the long term so that the Plaintiff should be able to resume his pre-accident job in full capacity (B/232-233). Dr Cheung had not expressed any disagreement to such opinion of Dr Hung either.
63. It is also the opinion of the psychiatric experts that the consistency of the Plaintiff’s physical symptoms is important and “if his physical condition should be much less severe than what he described, it needs to be considered if his psychiatric symptoms may also of a milder degree than what he has tried to portray” (B/226). Given my findings that the Plaintiff had exaggerated his physical symptoms, his psychiatric symptoms should also be of a milder degree.
64. Having considered all the evidence, I do not accept that the Plaintiff’s headache and dizziness as well as the aftermath of the post-concussion symptoms are so serious that he could not return to work in his pre-accident job. I found the Plaintiff should be able to return to work as a plumber with mild reduction in his working capacity due to his fear of height and very mild headache and dizziness as opined by Dr Choa and Dr Hung.
PSLA
65. It is contended that the Plaintiff’s injury falls within the serious category which justified an award of HK$600,000 as claimed whilst the Defendants argued that given the less serious injury, the reasonable award should be no more than HK$350,000.
66. In Lee Ting-lam v Leung Kam-ming [1980] HKLR 657, the Court of Appeal divided injuries into 4 categories of ascending order according to its severity, ranging from ‘serious injury’ to ‘disaster’ cases. For ‘serious injury’, “it covers cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain” (at page 660). In Ng Tat Kuen v Tam Che Fu & others [2019] HKCFI 1191 , Bharwaney J stated the range of award for serious injury category should be from HK$530,000 to HK$715,000.
67. I have considered the authorities which Mr Wong for the Defendants had cited, which include:
(a) Leung Fun Hing v Extreme Good (Asia) Construction Co Ltd & Anor HCPI 57/2001, Burrell J (unrep, 24 September 2002), a steel bender hit by a bundle of steel rods on the side of his head at work and sustained head injuries and post-concussional syndrome, suffered from dizziness and fatigue and unable to resume his pre-accident job, PSLA was awarded at HK$350,000 (adjusted for inflation, the figure would be $464,000 now);
(b) Chow Shuk Yan v Secretary for Justice HCPI 880/2005, Fung J (unrep, 9 January 2009) where a part-time life guard fell from height (about 2m) at work, suffered post-concussional syndrome with headache and dizziness and less frequently, HVS attacks, able to continue work as a piano teacher but had to give up swimming due to a near drowning episode, PSLA was awarded at $350,000 (adjusted for inflation, the figure would be $403,000 now);
(c) Wong Kai Fun v Sun On Logistics Ltd HCPI 196/2015, Master S Lo (unrep, 26 May 2017) where a container truck driver fell from the container (about 1.5m) and sustained a severe head injury with loss of consciousness, had occasional dizziness, headache, loss of concentration and memory, insomnia, blurred eyesight and auditory hallucination, total whole person impairment assessed at 9%, granted sick leave for about 27 months, unable to resume his pre-injury work but should be able to find a job as security guard, PSLA was awarded at $480,000 (adjusted for inflation, the figure would be $519,000 now);
(d) Mok Kam Ping v Yip Ka Kai & another HCPI 546/2014, G Lam J (as he then was) (unrep, 5 October 2016) a life guard assaulted by colleague and had a perforated ear drum but had a full recovery without any hearing impairment, also had adjustment disorder with depressive mood which also had almost recovered, PSLA was awarded at $100,000;
(e) Li Cheuk Lam v Cheung Sun Tai & Ors HCPI 1102/2015 (unrep, Master Leong, 13 October 2017), a container truck driver sustained a soft tissue injury of his right knee in a traffic accident but had fully recovered in 3 months’ time, PSLA was awarded at $70,000;
(f) Cheung Sau Lin v Tsui Wah Efford Management Limited [2019] HKCFI 1960 , a waitress tripped and fell and suffered from contusion of right hand and both knees, diagnosed to have adjustment disorder with depressive mood, recovered fully from her physical injuries and only have minimal mental symptoms after 6 weeks from the accident, PSLA was awarded at $70,000;
(g) Ng Yuk Shing v Liu Chun Kei and another [2020] HKCFI 340 , construction worker fell from a ladder and injured left leg with abrasion wounds, superficial laceration and haematoma, PSLA was awarded at $50,000.
68. I found the cases relied upon by Mr Wong for the Defendants did not support the contention of an award of $300,000 only or much less serious than the Plaintiff’s injury in this case.
69. I have also considered the authorities which Ms Cheng for the Plaintiff has cited, which include:
(a) Chan Kwun Tak v Kwok Chun Fong [2000] HKLRD(Yrbk) 383 involving a traffic accident with severe injuries to the head and cervical spine and resulted in neurological, orthopaedic and psychiatric disabilities, residual disabilities including walking instability, lack of dexterity, loss of sensation and strength to his upper limbs, PSLA was agreed and awarded at $650,000;
(b) Lam Kai v Ng Kwok Leung & Others [2002] 1 HKLRD 754, sustained head injuries with loss of consciousness in a traffic accident resulted in diffuse cerebral contusion and axonal damage leading to damage to the higher cognitive function, combined permanent impairment to the whole person assessed at 14%, PSLA was awarded at $500,000;
(c) Chan Chin Shun v Yau Sin Chung [2006] HKCU 605, blunt injury to the head with fracture of right temporal bone and contusion of brain, in post-traumatic amnesia for several days and suffered from persistent headache and dizziness thereafter, had difficulty in concentration due to physical pain in head and limited short-term memory, PSLA was awarded at $600,000;
(d) Rai Narayan Parshad v Chit Hing Construction Engineering & others [2011] HKCU 1826, a construction site worker struck by a mini-lorry at work resulted in fractures in left clavicle and right superior pubic ramus, underwent an operation and in ICU for a week and discharged after further 10 days of hospitalization, residual headache, non-specific dizziness and subjectively impaired memory, akin to the diagnosis of post-concussional syndrome, no cognitive, vestibular or physical deficit, had bilateral trochlear nerve paresis which caused binocular diplopia, PSLA was agreed and awarded at $500,000;
(e) Siu Kin Keung Anthony v H&M Hennes & Mauritz Ltd [2012] HKCU 2212, a display designer fell from a working platform and lost consciousness, sustained skull fracture, a large epidural hematoma over right parietal and occipital region and small frontal brain contusion, emergency operation performed with satisfactory recovery, had residual symptoms of headache and dizziness and diagnosed as having mild post-concussional syndrome, also developed a condition of height phobia amendable to psychological management and control, PSLA was awarded at $400,000; and
(f) Wong Kai Fun v Sun On Logistics Limited & Another (supra).
70. The Plaintiff had a very serious traumatic head injury and he had undergone an emergency brain surgery resulting in neurological impairments as well as post-concussional syndromes. He had undergone lengthy neurological, psychiatric and psychological follow-up treatments and therapies. I bear in mind that the categories in Lee Ting-lam (supra) are only guidelines and are intended to be flexibly applied. Having regard to the totality of the evidence, I agree with Ms Cheng for the Plaintiff that the composite neurological, physical, psychological and psychiatric injuries and impairments should bring the Plaintiff close to the lower end of serious injury category.
71. I believe the Plaintiff’s injury was more akin to the case of Siu Kin Keung Anthony . With the upward adjustment taking into account the slightly more serious nature in the Plaintiff’s case and inflation over the years, I would assess the PSLA award at HK$540,000.
Pre-trial Loss of Earnings
72. Given my ruling on the reasonable sick leave period of 36 months, ie 12 October 2016 to 11 July 2019 plus a period of at least 3 months to be allowed for the Plaintiff to look for new job, the period for pre-trial loss of earnings shall end on 11 October 2019.
73. The daily wage of the Plaintiff was $1300 at the time of the Accident. Since I accept there was a pay rise of 13% in the salary of a plumber, adopting the figure suggested by the Trade Union, the daily wage should have risen to $1,500 in November 2019. Hence the median monthly earnings during the sick leave period should be ($1,300 + $1,500)/2 x 24 days = $33,600.
74. The full loss for the period of sick leave including MPF should be $33,600 x 36 months x 1.05 = $1,270,080.00.
75. As for the pre-trial loss after 12 October 2019 to 5 December 2021, given my ruling that the Plaintiff should be able to resume his pre-accident job, the pre-trial loss should end on the expiry of his sick leave as well.
Future Loss of Earnings
76. Given my ruling that the Plaintiff should be able to resume his pre-accident job as a plumber, there should be no post-trial loss of earnings suffered by the Plaintiff.
Loss of Earning Capacity
77. The Plaintiff has to establish that he will be handicapped in competing in the open market due to his disability. As can be seen from the summary of findings of the respective experts, all of them opined that the Plaintiff can return to his previous job and the only issue is whether his working capacity will be compromised.
78. In view of my ruling that the Plaintiff should be able to return to his previous job as a plumber with some compromise in his working capacity due to his fear of height and very mild headache and dizziness, the issue to be considered will be whether there is a real or substantial risk that the Plaintiff might lose his pre-accident job in the future and what is fair and reasonable for the loss of earning capacity.
79. Whilst Dr Hung opined that the fear of height can be overcome, one cannot exclude the possibility that the Plaintiff might suffer from mild headache and dizziness in the future, be prevented from working from time to time because of these problems and suffer financial loss as a result. Furthermore, I accept that the reality is that employers would prefer to employ fully able-bodied persons if they can, so the Plaintiff’s residual physical and psychological impairments (though slight) may have some impact on his ability to secure a new job if he is thrown into the labour market.
80. I do accept that the Plaintiff had suffered some disadvantage in the labour market and this head of claim should be allowed. Although it is impossible to accurately quantify the extent of the risk, doing the best I can in light of the totality of the evidence, I am prepared to grant the full sum of HK$200,000 as claimed by the Plaintiff taking into account the extent of the Plaintiff’s residual ailments.
Special Damages & Future Medical Expenses
81. These heads of claim are agreed and allowed.
Summary on Quantum
82. In summary, the quantum of damages is assessed at:
PSLA
HK$
Pre-trial loss of earnings and MPF
1,270,080.00
Post-trial loss of earnings
nil
Loss of earning capacity
200,000.00
Special Damages (agreed)
31,165.00
Less: EC Compensation
(1,597,533.00)
Final award:
453,712.00
Interest
83. Interest on damages for PSLA runs at 2% per annum from the date of writ to judgment. Interest on pre-trial loss of earnings and other special damages runs at half judgment rate from date of accident to judgment. Interest from judgment until full payment runs at the judgment rate.
Costs
84. As for costs, the Plaintiff should be entitled to costs. Since the award is within the jurisdiction of the District Court, costs should be taxed according to District Court scale.
85. Costs order nisi that the Plaintiff do have costs of the assessment with certificate for counsel to be taxed on District Court scale if not agreed with Legal Aid taxation for the Plaintiff’s own costs. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.
( Angela Kot )
Master of the High Court
Ms Flora Cheng instructed by Liu, Chan & Lam for the Plaintiff
Mr Chi Kwong Wong instructed by Kennedys for the Defendants