ALLAJA DOTTA v. RODNEY ENGINEERING CO LTD

HCPI 981/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 981 OF 2005

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an assessment of damages.

Background

2. The Plaintiff is a Pakistani.  He was born on 15 January 1976.  He was educated, grew up and married in Pakistan.  His wife and 2 children reside there.  In 1990, the Plaintiff came to Hong Kong to work.  He has been a machine operator, security guard, driver, crane driver and dumper truck driver.

3. On 12 July 2004, he fell from the top of a container onto the ground and sustained injuries.  He was sent to the A & E Department of North District Hospital.  Upon treatment, he was discharged on the same day.  The relevant Government Hospital Report states that:

“The symptoms were:

Fell from 8 feet high with head injury.  Loss of consciouness for 5 minutes.  C/O headache, dizziness, neck and back pain

The examination and investigation findings were:

General condition was stable.

……

Pain over neck, upper and lower back.  Mild pain over R ankle.  Alert and orientated, Glasgow coma score 15/15.  Chest, cardiovascular and abdominal examination normal.  CT brain and neck: normal.  X rays of cervical, thoracic and lumbar spine: no fracture

The provisional diagnosis was

Contusion of trunk, back

……

Sick leave was granted from 12/07/2004 to 21/07/2004”

(Report dated 31 May 2005)

4. The Plaintiff then attended Caritas Medical Centre for further care.  The Report of 16 August 2004 states that:

“Physical Examination:

·          He was in pain distress.  The pain was on right side of lumbar region, spreading to involve right leg.

·          Right leg movement decreased and walked slowly with stick.

X-Rays:

Lumbar and cervical spine – showed no fracture.

Diagnosis:

Back and neck injury.

Treatment & Disposal:

·          He was discharged with treatment and referred to Orthopaedic & Traumatology Out-patient Dept. for further treatment.

·          10 days’ sick leave was recommended (22 – 31/7/2004).”

5. Further, physiotherapy treatment was given to the Plaintiff for some time.  The report of 30 September 2004 records that:

“Physical examination of this patient did not show any external wound over neck, back and right foot.  Local tenderness was found over right para-spinal muscle region with muscle spasm.  There was slight decrease in right lower limb power below right knee, which was related to right foot pain.  There was localized tenderness over right foot 2nd metatarsal region.

X-ray of lumbar spine and right foot were normal.

Clinical diagnosis was back contusion and right foot injury, result from work related injury.

A course of physiotherapy was prescribed for the patient for his back pain.  Patient was last seen on 24th September, 2004, which claimed the back was slightly better with physiotherapy.  Sick leave was granted from 30th July, 2004 to 5th November, 2004.”

6. Sick leaves were granted to the Plaintiff up to 7 April 2005.  Hence, in total, he had about 9 months’ sick leave.

7. On 25 October 2005, the Plaintiff commenced the present proceedings against the Defendant, his ex-employer, for damages suffered as a result of the subject accident.  Interlocutory judgment on liability was entered for the Plaintiff on 1 June 2006, leaving damages to be assessed by this Court.

8. I heard the matter for a total 6 days in April and July 2008.  Mr. Charles Wong of Counsel acted for the Plaintiff and Mr. Kumar Ramanathan of Counsel represented the Defendant.

Issues to be resolved

9. There are quite some factual disputes between the parties.  Mr. Rama identified them as follows:

“ (a)     what exactly was P’s employment with D and what was his monthly remuneration?  Was he ever employed and paid to work as a security guard?

   (b)     what were the circumstances under which P came to live in the container unit?  Was there an arrangement whereby D would deduct 5% of his remuneration for the provision of the container accommodation and the use of utilities by P?

   (c)     can P return to his pre-accident work as a driver?  If so, when should he have been able to do so?  Has he been exaggerating his symptoms and disabilities?”

(Closing Submission dated 21 July 2008)

I respectfully adopt them and will deal with them in turn below.

Credibility of the witnesses

10. Before deciding on the above, I need to assess the credibility of the witnesses before me.  There were 3 witnesses having stepped into the witness box, the Plaintiff, his family friend Mr. Afzal and Miss Tong of the Defendant.  On balance, I prefer to accept the evidence of Miss Tong rather than those of the Plaintiff and Mr. Afzal.

(a)       The Plaintiff has been exaggerating his injuries and disabilities.

(i) All of the above Government Hospital Reports show that the Plaintiff did not suffer from serious injury.

(ii) The Defendant’s expert, Dr. Lam, commented the Plaintiff’s complaint did not tally with the objective assessment.

“ 12.     At this assessment, Dr. Ditta still complained of persistent low back pain and episodic right thigh radiation.  However, examination revealed many discrepancies in his complaints and physical signs.

  ……

17.     He also complained of back pain on vertex pressure, right shoulder elevation, pelvis rotation and skin pinching.

·               These are typical simulation tests, which are movements apparently related to the back, but in fact not.  If obvious back pain is described in these tests, some exaggeration or functional overlay is present.

  ……

20.     In a genuine spinal root involvement (radiculopathy), there should be a combination of motor and sensory loss in the corresponding myotome and dermatome, in a segmental and localized manner.  This should be associated with muscle wasting and diminished reflexes.

·               In Mr. Ditta, his right side was generally weaker, but there was no associated muscle wasting.

·               The sensation and reflexes were also normal.

·               Similar discrepancies in findings were also reported by Dr. Tsoi.

  ……”

(iii)      Probably, the fatal point is that the Plaintiff’s own expert does not support his case.

“ 3.       The generalized weakness of whole right lower limb could not be explained by orthopaedic means.  The cogwheel type of weakness was a sign suggesting voluntary underperformance.

  4.       The positive simulation tests, the difference in straight leg raising ankle performed in different body position are features suggestive of symptom magnification.

  ……

  6.       In summary Mr. Ditta’s back and right leg disability could not be fully explained by orthopaedic means.  The disabling low back pain and weakness of right lower limb was probably functional in origin.”

(Report on 12 July 2005)

“ 4.       Having considered the MRI findings, I am of the opinion that most of Mr. Ditta’s back and lower limb complaints are either functional in origin or Mr. Ditta is magnifying his disability.  There is no orthopaedic explanation to the alleged disabling lower back pain and generalized weakness of his whole right lower limb.”

(Supplemental report on 10 September 2005)

(b)       The Plaintiff’s case that he was also employed by the Defendant as a night-time security guard is not supported by contemporaneous documents.  Worse still, it indeed goes against them.

(i)                The application form signed by the Plaintiff does not bear any information on security guard, but only driving experience and safety card for working in a construction site.

(ii)              The employment agreement signed by the Plaintiff states that the Plaintiff will earn $9,000 fixed salary only without any reference to the $4,000 job of night-time security guard.

(iii)            The Salary Record of the Defendant and the bank passbook of the Plaintiff show that there are only payments of $9,000 monthly salary, but not otherwise.

(c)       After cross-examination, I find Miss Tong a more reliable witness than the Plaintiff and Mr. Afzal.

(i)                I agree with the following submissions by Mr. Rama.

“ 7.       Under cross examination, P was deliberately vague as to when he started to work for D.  In particular the following it is worth noting:

(i)      when asked whether he refused the SG job because of the clash in timings, he for the first time stated that it was because of the timing and the fact no salary was mentioned.  When pressed on this by reference to paragraph 22 of his witness statement, he then sought refuge under the umbrella of the passage of time for his memory lapse;

(ii)     when pressed as to whether he started working for D immediately after the second interview as he did not require giving notice, he appeared to resile from his initial evidence that it was almost immediately after the second interview.  He then sought to avoid answering the question by saying he could not remember when he started.  Eventually he agreed that he started working within a week of the second interview;

(iii)     having made such a categorical assertion in paragraph 31 of his witness statement quoted above [which he adopted on his affirmation as being true and correct], when it was suggested that he must have started work in and about early July, he began to get cagey and again resorted seeking umbrage under passage of time;

(iv)    ……”

(Closing Submission dated 21 July 2008)

(ii)              It has been the Plaintiff’s case that he was forced by the Defendant to vacate the container unit.  However, under cross-examination, he admitted that it was not the case and eventually, abandoned the claim for loss of accommodation.

(iii)            I similarly find the Plaintiff’s claim for meal allowance unsatisfactory.  It has been his case until the very last minute when he instructed Mr. Wong to concede on the matter without offering this Court an explanation.  As pointed out by Mr. Rama, the matter did not stop there but went on to affect the credibility of the Plaintiff in the present proceedings.

(iv)            Mr. Afzal’s evidence was adduced to support part of the Plaintiff’s case, including the job of night-time security guard.  However, having found against the Plaintiff on his case, I do not accept the additional evidence as sufficient to overturn my ruling on the parties’ case on balance.

(v)              Mr. Wong tried diligently to discredit Miss Tong in different aspects during the cross-examination, including the inconsistency of her case in this Court and related ECC case, the mistake of the Defendant in certain MPF matters with its staff and the Plaintiff.  Nonetheless, as a whole, I agree to accept her explanations offered to the Court.  I find her an honest and reliable witness and will accept her evidence whenever there is a conflict with that of the Plaintiff’s case.

Findings

10. Having decided to accept the evidence of the Defendant, I will have the following findings towards the issues identified by Mr. Rama.

(a) The Defendant only employed the Plaintiff as a driver at a fixed monthly salary of $9,000.00.  The latter has never been hired by the former as a night-time security guard.

(b) At the request of the Plaintiff, the Defendant allowed him to live in the container unit.  Parties agreed that the Defendant would deduct 5% of his salary for the unit as well as use of utilities.

(c) The Plaintiff has been exaggerating his symptoms and disabilities.  He could have resumed his pre-accident work as a driver after the expiry of the sick leave granted to him by the Government Hospital doctor.

Assessment

11. I now turn to the assessment of damages.

PSLA

12. Both Counsel submitted to me quite some authorities on the pain, suffering and loss of amenities.  It appears to me that the victims therein as well as the way as to how the accidents happened are different from the Plaintiff herein.  In terms of injury, the case of Chimmalee On-Uma v Waylung Waste Services Limited is relatively a better comparable.  Nonetheless, given that the Plaintiff in the present case did fell from a height of about 8 feet instead of merely spraining one’s back at work, I find his injury a bit serious than this authority.  I will award the Plaintiff a sum of $150,000 under this head.

Pre-trial loss of earnings and MPF

13. I have agreed to accept that the Plaintiff is entitled to a period of 9 months’ sick leave.  Hence, he should be compensated by $85,050.

Post-trial loss of earnings and MPF

14. In my judgment, the Plaintiff is not entitled to any future loss of earnings and MPF thereof.

Loss of accommodation and meal allowance

15. Mr. Wong confirmed with me that the Plaintiff had decided to abandon these claims and I make no award thereof.

Loss of earning capacity

16. Both experts accepted that the Plaintiff could resume the pre-injury job.  They also agreed that he had suffered a few percentages of loss of earning capacity.  Dr. Tsoi added that he would have difficulty in delivering very heavy objects.  On this basis, I will award a sum of $50,000, being approximately 5 months’ salary of the Plaintiff for his disadvantage in the open labour market.

Special Damages

17. I will allow in full the Plaintiff’s claim of $1,175 for special damages.  As to the disputed item of $220, being fee for hiring a van to the construction site, I accept on balance that it is the fee to take back the belongings of the Defendant from the container unit, not just his ID card as explained by the Plaintiff during his cross-examination.

Summary

18. In conclusion, I award the sum of $143,725 to the Plaintiff.

19. The Plaintiff is also entitled to interest on PSLA at the rate of 2% per annum from the date of writ herein until today.  As to other damages, interest will be awarded at half of the judgment rate at the date of 30 August 2005 till today.

Costs

20. There will be an order nisi that the Defendant shall bear costs of the Plaintiff on District Scale, together with Certificate for Counsel for hearing before me on 9 and 10 April, 14 to 16 and 23 July 2008, to be taxed if not agreed. The Plaintiff’s own costs are to be taxed according to Legal Aid Regulation.

21. I have nothing further to add apart from expressing my thankfulness for the assistance from both learned Counsel.