CHAN SIU LUNG v. YIP KAM SHUI t/a YING TUNG ENGINEERING CO AND ANOTHER

CACV 184/2022, [2023] HKCA 1144

On appeal from [2022] HKCFI 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 184 OF 2022

(ON APPEAL FROM HCPI NO 354 OF 2019)

________________________

________________________

___________________________________

REASONS FOR JUDGMENT

___________________________________

Hon Kwan Ag CJHC (giving the Reasons for Judgment of the Court):

1.  This is the plaintiff’s appeal against the assessment of damages of Master Kot in a personal injuries claim which arose out of an accident at work on a construction site. The master’s judgment was handed down on 4 April 2022 (“Judgment”). We allowed the appeal at the conclusion of the hearing. These are the reasons of the court.

2.  The final award of the master, less the employees’ compensation paid to the plaintiff, amounted to $453,712. Mr Ashok Sakhrani, who appeared for the plaintiff in this appeal, seeks to challenge the award in only two respects:

(1)  in the award for pre-trial loss of earnings, whether the master should also have awarded partial loss of earnings for a limited period beyond the sick leave she allowed; and

(2)  in the award for loss of earning capacity, whether the master should have awarded a sum greater than $200,000 as claimed by the plaintiff, to take into account sufficiently the real risk of the plaintiff of not finding and keeping his job as a construction site plumber.

3.  Mr Sakhrani’s position is that in the event this court finds in his favour in respect of (1), the plaintiff will not seek to disturb the master’s award for loss of earning capacity in (2) for the residual mild headache and dizziness.

Relevant facts and findings

4.  The relevant facts and findings may be stated as follows. They are taken from the Judgment and from evidence not in dispute.

5.  The plaintiff had been a plumber for 7 years and had worked for the 1^st defendant Yip Kam Shui (“Mr Yip”) at a construction site for about half a year prior to the accident on 12 October 2016. He was 29 years old at the time. While the plaintiff was performing welding work of water pipes underneath the ceiling of a floor of a building under construction, he fell from the unguarded hop-up platform, landed on his occiput and sustained serious head injuries. He fell from a height of about 1.5 metres[1]. He lost consciousness immediately after the fall.

6.  On admission to hospital, CT scan revealed a right epidural haematoma, a linear fracture over the right tempo-occipital bone, and a well-defined radiolucent line at the right iliopubic region suspicious of an old fracture[2]. The neurosurgeons performed an emergency operation (craniotomy and evacuation of the right epidural haematoma). He recovered gradually and was discharged on 19 October 2016, walking with the aid of a stick and light assistance of one person.

7.  The plaintiff 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 psychiatrists. He also attended physiotherapy treatment and occupational therapy. He was granted sick leave from the day of the accident to 25 February 2021, a total of 1,598 days.

8.  At the time of the assessment of damages in December 2021, the plaintiff gave evidence that although his condition had improved after treatment he continued to receive follow up consultation at the neurosurgical clinic of Queen Elizabeth Hospital since he was still troubled by: intermittent headache of a sharp character and of moderate intensity; intermittent dizziness of severe intensity, associated with disequilibrium, vertigo and nausea; forgetfulness and poor concentration; poor temper control and irritability; sleep disturbance and nightmare; lower limbs weakness occasionally; and phobia of height[3].

9.  The plaintiff was jointly examined by medical experts of 3 disciplines in January 2020 (neurology experts)[4], June 2020 (orthopaedic experts)[5] and July 2020 (psychiatric experts)[6]. The experts had the benefit of the surveillance observations of the plaintiff on 3 occasions in September and October 2019. The respective opinions of the experts have been helpfully summarised in §§16 to 18 of the Judgment.

10.  The master found that the plaintiff had a very serious traumatic head injury resulting in neurological impairment as well as post-concussional syndrome. He had undergone lengthy neurological, psychiatric and psychological follow-up treatment and therapy. Having regard to the totality of the evidence, the master was of the view that the composite neurological, physical, psychological and psychiatric injuries and impairment should bring the plaintiff close to the lower end of the “serious injury” category in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657. She awarded $540,000 as damages for pain and suffering and loss of amenities[7].

11.  At the time of the accident, the plaintiff’s average monthly salary was $31,200 without the employer’s contribution towards MPF and there would be a pay rise of 13% in 2019. These findings of the master are not challenged on appeal.

12.  After the plaintiff’s sick leave expired in February 2021, he took up alternative employment from May 2021 to November 2021 as a food delivery worker. He also tried to find work as a kitchen worker but had not succeeded until September 2021 when he worked for only 4 days and was dismissed because he was not vaccinated for Covid-19. Had he been able to continue in this job, he would have earned $15,000 a month. He then secured a licence to work as a security guard in November 2021 but was not yet able to obtain such work when his case came before the master a month later. His total earnings from working as a food deliverer and 3 days of part-time work at the Book Fair came up to $27,304.73.

13.  He contended before the master he could not return to his pre-accident job as a plumber since he could not overcome the phobia of working at height. The welding and installation tasks could not be done on firm ground and it is impossible to avoid working at height. Even if he is provided with a proper working platform, he is still required to raise both hands to perform welding at ceiling level. Mr Yip agreed that a plumber must work at height and if a plumber should tell him he had dizziness, he would not dare to employ that person.

14.  The plaintiff claimed damages for pre-trial loss of earnings of $2,097,803 and loss of future earnings of $5,541,056.21[8], on the basis that he had suffered full loss of earnings as a plumber for the sick leave period of 52 months up to 25 February 2021 with an additional 3 months to look for alternative employment, partial loss of earnings for 6.5 months (from May 2021 to the date of hearing in December 2021, being the earnings of a plumber less his actual earnings in alternative jobs in the total sum of $27,304.73), and that he would continue to suffer partial loss of earnings for the rest of his working life at $21,709.20 a month[9].

15.  The master noted that the sick leave certificates were mainly granted by the neurosurgical clinic and 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. Having considered the medical notes and records and the opinion of the neurology experts (Dr Yu and Dr Choa) and the psychiatric experts, the master found that the plaintiff’s condition should have been stable by 23 July 2019. Allowing another 3 months for the plaintiff to look for alternative employment, she ruled that a reasonable sick leave period for the plaintiff should end by 11 October 2019 (36 months). When Mr Sakhrani lodged his submissions, he abandoned the grounds of appeal that challenge the finding on the reasonable sick leave period.

16.  A substantial part of the Judgment[10] was devoted to the issue whether the plaintiff can resume his pre-accident work. Both Dr Yu and Dr Choa found that the plaintiff should be able to return to his pre-injury work and the only difference in their opinion is whether his working capacity was compromised. The master found that the residual impairment of the plaintiff of occasional headache and dizziness as well as fear of height are subjective complaints without any objective evidence in support and this turns on the plaintiff’s credibility. She did not find the plaintiff a reliable witness in this regard, having referred to the comments of Dr Yu and Dr Choa on the reliability of the plaintiff’s complaints, the evidence on the plaintiff’s surveillance on 3 occasions in September and October 2019 and another 3 occasions in February and March 2021. She made these pertinent comments, observations and findings:

“49. Even though Dr Yu qualified [his] 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’ …, 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.”

“51. [after referring to the surveillance evidence at §50] 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’. … This is utterly inconsistent with someone complained of having occasional headache, dizziness and fear of height.”

“52. … 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.”

“54. … 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.”

17.  From her ruling on the severity of the headache and dizziness, the master accepted Dr Choa’s opinion 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%”. She noted that in assessing the plaintiff’s permanent impairment of the whole person at 6%, Dr Yu had not demonstrated how the plaintiff’s exaggeration of disabilities had been taken into account.

18.  The master agreed with the defendants that the accident happened due to the use of an unguarded pop-up platform and “normally” there should be protections such as proper working platform. She reasoned that “under normal circumstances” the chance of the plaintiff working at unprotected heights “should be none” and hence the risk of post-traumatic epileptic seizure from working at unprotected heights is “neutralized”.

19.  The master accepted the opinion of Dr Ko that the plaintiff showed no orthopaedic condition that would prevent him from resuming his work as a plumber.

20.  The master noted it is agreed between the psychiatric experts the plaintiff needs to continue with his psychiatric and psychological treatment but he should be able to resume his pre-accident job. She does not agree with Dr Cheung that the plaintiff had already reached maximum medical improvement, since this is inconsistent with his opinion that the plaintiff still required further treatment for another 5 years. She preferred the opinion of Dr Hung “on the assessment of impairment and loss of earning capacity”, and accepted his 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”.

21.  The master then made these findings at §§63 and 64:

“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’. … Given my findings that the Plaintiff had exaggerated his physical symptoms, his psychiatric symptoms should also be of a milder degree.”

“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.”

22.  When the master came to consider pre-trial loss of earnings, she took into account her rulings on the reasonable sick leave period and the median monthly earnings as a plumber during this period and awarded damages on the basis of the full loss of a plumber’s earnings from the day of the accident to 11 October 2019 at $33,600 x 36 months x 1.05 = $1,270,080.

23.  She went on to say at §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.”

24.  Given the ruling that the plaintiff should be able to resume his pre-accident job and there should be no post-trial loss suffered by him, no award was made for future loss of earnings. There is no appeal against this ruling[11].

25.  The plaintiff claimed damages for loss of earning capacity of $200,000, on the basis there is real or substantial risk he might lose his pre-accident job in the future and would be handicapped in competing in the open market due to his disability. The master said at §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.”

26.  The master accepted that the plaintiff had suffered some disadvantage in the labour market and awarded $200,000 under this head as claimed.

Pre-trial loss of earnings

27.  Mr Sakhrani did not challenge the master’s findings on the credibility of the plaintiff. He submitted that notwithstanding her unfavourable view on the reliability of his testimony with regard to his residual impairment of occasional headache and dizziness as well as fear of height[12], she should have awarded damages for partial loss of earnings for a limited period beyond the reasonable sick leave period, had she taken into consideration other evidence and expert evidence that she has accepted:

(1)  It is not in dispute that the plaintiff needed to work on platforms, ladders or stand on hop-up platforms and sometimes had to climb heights. He testified that he cannot return to his pre-accident work since he cannot overcome the phobia of working at height.

(2)  Dr Hung, whose opinion the master preferred and accepted, opined 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”. Dr Hung took the view that the fear of standing on ladders or from heights was “understandable” given the nature of the accident, and that with “continued psychiatric and psychological therapy, and forcing himself to try standing on ladders again and regaining confidence, this fear can be overcome”[13]. Dr Cheung had not expressed any disagreement to such opinion of Dr Hung[14].

(3)  Dr Hung opined that the plaintiff “is currently” (ie at the time of the joint examination in July 2020) “capable of resuming his previous job from a psychiatric perspective, as long as he does not have to work from heights. If this is not possible, he can work in any other job which does not involve standing on ladders/stools without any impairment as a result of his psychiatric condition. 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.”[15]

(4)  Dr Hung recommended that the plaintiff should continue psychiatric and psychological treatment for the coming 2 years at intervals of 3 months[16].

28.  Some of the relevant passages in the joint psychiatric assessment report concerning Dr Hung’s opinion were also relied on by the defendants in the closing submissions of their counsel.

29.  Mr Sakhrani contended that on the above evidence, it would be reasonable to infer it could take up to 2 years of psychiatric and psychological treatment before the plaintiff could resume his pre-accident work in full capacity. He submitted that it would be sensible allowing the plaintiff to resume work by taking up lighter job first to regain confidence gradually and to receive further treatment to overcome the fear of working at height in the long term. The master was in error in that she appeared to have lost sight of Dr Hung’s evidence and failed to give effect to his opinion that the plaintiff could only return to his pre-accident work as long as he did not have to work at heights (which was not possible) or when he overcomes his fear of standing on ladders in the long term. She was in error in concluding that the pre-trial loss of earnings should end with the expiry of the reasonable sick leave on 11 October 2019 and had ignored the evidence that at the time of the joint examination by the psychiatric experts in July 2020, the plaintiff was not suited to return to his pre-accident work in that his fear of height had impaired his ability to work as a construction site plumber even though this fear could be overcome in the long term. Mr Sakhrani submitted there is no evidence to support the master’s conclusion there was no partial loss of earnings after 11 October 2019.

30.  Mr Sakhrani argued it would be appropriate to take $15,000 as the monthly income the plaintiff would have earned doing alternative lighter work for 2 years after the sick leave period and award a further sum for this partial loss of earnings: ($36,000 - $15,000) x 105% x 24 months = $529,200. Interest should also be awarded on this sum at half the judgment rate: $529,200 x 4.331% x 2 years = $45,839.

31.  Mr Wong Chi Kwong, who appeared for the defendants on appeal and below, submitted that the master is correct in the award she made for pre-trial loss of earnings. He emphasized that the plaintiff bears the legal and evidential burdens in proving his injuries, the treatment received, residual disabilities and damages and it is trite that the appeal court should be slow to interfere with the findings of primary fact of the trial judge and would do so only if it could be demonstrated that the findings of fact were “plainly wrong”.

32.  Mr Wong referred to the findings and observations of the master that have been set out earlier regarding the exaggeration by the plaintiff of his disabilities and symptoms and the likelihood of malingering and that she had remarked at one point that “This is utterly inconsistent with someone complained of having occasional headache, dizziness and fear of height”. The master had also found that “Given [her] findings that the Plaintiff had exaggerated his physical symptoms, his psychiatric symptoms should also be of a milder degree.”

33.  Mr Wong pointed out that the master had made careful analysis of all the evidence before she made the findings of fact, and such findings of fact are not challenged by the plaintiff in this appeal. He referred to the surveillance evidence commented upon in the joint neurology report and emphasized that the plaintiff was seen walking with a normal gait at a normal speed looking at his smart phone all the time even when going up steep steps.

34.  In respect of the master’s quotation[17] from the joint psychiatric assessment report[18] regarding the opinion of the experts that the consistency of the plaintiff’s physical symptoms is important (as the plaintiff attributes his physical impairment being one of the causes of his mood symptoms) that “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”, it should be pointed out that the experts went on to say in the following paragraph – not quoted by the master – that “we do not find any inconsistency in his reported psychiatric symptoms at the joint examination, the observed mood in the joint examination and the information in the medical records and reports. His emotional responses were genuine and he did not appear to have magnified or exaggerated his psychiatric symptoms in the joint examination.”[19] Dr Hung and Dr Cheung confirmed their agreement on the “Reliability of reported psychiatric symptoms” at the end of their report[20]. The psychiatric experts noted that observations on the plaintiff’s physical condition have been commented in the joint neurology expert report and the joint orthopaedic report but did not think there is sufficient information from the surveillance video to make any conclusion on his psychiatric condition[21].

35.  Irrespective of whether the plaintiff’s psychiatric symptoms should be of a milder degree as postulated by the master, she had expressed her preference for and acceptance of 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”, as stated in §62 of the Judgment. She again referred to Dr Hung’s opinion that the fear of height can be overcome in §79 of the Judgment. Even though she did not accept the plaintiff’s headache and dizziness as well as the aftermath of the post‑concussion syndrome are so serious that the plaintiff could not return to his pre-accident work as stated in §64 of the Judgment, her findings regarding the plaintiff’s lack of credibility in exaggerating his disabilities and symptoms do not impact on this part of Dr Hung’s opinion, which she has clearly accepted.

36.  In considering the award for pre-trial loss of earnings, the master simply stopped at the point when the plaintiff should have resumed working on the expiry of a reasonable sick leave period, with 3 months added on to allow him to look for a job. On the available evidence, the indication is that the plaintiff would not have been able to resume working as a plumber on a construction site until he has overcome his fear of working at a height with “continued psychiatric and psychological therapy”, which may take 2 years. The master is plainly wrong in holding in §75 that given her ruling the plaintiff should be able to resume his pre-accident work, the pre-trial loss should end on the expiry of his sick leave as well.

37.  Mr Wong took issue with the computation of the partial loss of earnings, if it should be held that the plaintiff had indeed suffered partial loss after the reasonable sick leave period. He contended that instead of deducting $15,000 (monthly income from lighter work the plaintiff should have undertaken) from $36,000 (monthly income he would have earned as a construction site plumber working at full capacity), $25,000 should have been deducted being the income the plaintiff should have earned as a plumber working at reduced capacity before he managed to overcome his phobia of working at height.

38.  At the hearing before the master, it was not suggested to the plaintiff that he could have found work as a plumber that would not require him to work at height. Mr Yip’s evidence is to the contrary in that he agreed a plumber must work at height[22].

39.  We agree with the computation suggested by Mr Sakhrani.

40.  It is not necessary to consider the arguments advanced for the award for loss of earning capacity, as Mr Sakhrani has made clear he would not pursue this if the court should award partial loss of earnings for a limited period beyond the sick leave period.

41.  We therefore allow the plaintiff’s appeal, vary the master’s certificate on assessment of damages to the extent that item 2 for pre-trial loss of earnings and MPF in the amount of $1,270,080 should be substituted by the figure of $1,270,080 + $529,200 = $1,799,280. We also order interest be awarded on the pre-trial loss of earnings of $1,799,280 at half the judgment rate from the date of the accident (12 October 2016) to the date of judgment (4 April 2022) and thereafter at judgment rate until payment.

42.  We have ordered the defendants to pay the plaintiff’s costs of this appeal and that the plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.