LI MING TAK v. HONG KONG AIRPORT SERVICES LTD

HCPI 860/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 860 OF 2009

_________________________

________________________

________________________

Introduction

1.  This is a personal injury claim where the plaintiff, an Aircraft Loading Agent working at Hong Kong International Airport, claimed that over a period of time he suffered bodily injuries which were exacerbated by his employer’s refusal to reassign him to more appropriate and suitable work.  The defendant denied the claim and both liability and quantum are in issue.

2.  To better understand this claim, it would be useful to give a brief overview of the nature and basis of it.  In 2003, the plaintiff commenced work as a luggage handler for the defendant at the international airport, having been medically cleared to do such work.  In 2007, he first complained of pain to his left knee and later to his right shoulder.  There was no single or specific incident at work that led to these injuries.  In fact, it would appear that the right shoulder injury was due to three previous dislocations that were unrelated to work.  From July 2007 until he left the defendant’s employment in April 2010, he was mostly on sick leave or performing light duties.  The light duties consisted of sorting and delivering documents and refueling vehicles.   There was a period of 33 days between March and May 2009 when the plaintiff was put on mixed duties where he was required to load and unload 2 flights per day.  He claimed that during this period he was made to perform duties that aggravated or exacerbated his injuries.  Throughout this period he was given treatment and physiotherapy for pain to his right shoulder and left knee.  He was eventually diagnosed as suffering with Superior Labral Anterior and Posterior lesion (SLAP lesion) in relation to his right shoulder injury and chondromalacia of the patella (CP) in relation to his left knee injury. 

3.  Superior Labral Anterior and Posterior lesion (SLAP lesion) is an injury to the glenoid labrum.  The shoulder joint is a “ball and socket” joint and the socket is small, covering at most only a third of the ball.  It is deepened by a circumferential rim of fibrocartilage, the glenoid labrum.  A SLAP lesion occurs when there is damage to the superior (the top part) area of the labrum. It involves detachment of the superior labrum and biceps roof from the superior glenoid attachment and may be caused by either the repetitive nature of overhead throwing or as a result of a traumatic event. 

4.  Chondromalacia of the patella (CP) is inflammation of the underside of the patella, the kneecap, and softening of the cartilage.  The patella’s posterior surface is covered with a layer of cartilage, which the base of the femur normally glides against when the knee is bent.  The basis of this disorder is normally mechanical overload of the pattello‑femoral joint.  It is commonly due to repetitive overload due to malcongruence, malalignment and muscle imbalance resulting in anterior knee pain and softening and fibrillation of the articular surface of the patella. 

5.  The plaintiff was medically examined for the purpose of this claim by two orthopaedic doctors on behalf of the plaintiff and defendant respectively on 5 October 2009 and 26 November 2012.  The two doctors concluded that the right shoulder and left knee injuries were not work related.  However, they were of the opinion that the left knee injury may have been aggravated or exacerbated when kneeling and squatting in loading and unloading luggage.  It transpired that surveillance was conducted on the plaintiff and he was video recorded on various days between August and November 2011 where he is seen carrying out normal and routine activities without any apparent discomfort or limitation to his right knee or upper limbs.  The doctors upon viewing the video recordings concluded that he had exaggerated his disabilities during the joint medical examination when he presented himself as having a limp and limited movement to his right knee.  

6.  After the plaintiff left the employ of the defendant in April 2010 he did not seek or obtain any medical assistance or treatment for his purported injuries. 

Background facts

7.  During the material times, the plaintiff was employed by the defendant as an Aircraft Loading Agent 7 (Agent 7) and was assigned to work in the apron of Hong Kong International Airport, Chek Lap Kok, Hong Kong.  The defendant carries on the business of, amongst other things, providing air‑cargo service. 

8.  Prior to taking up employment with the defendant, the plaintiff attended a pre‑employment medical examination which did not reveal any medical condition which rendered him unsuitable for work as a loading agent.  He was then employed as a Temporary Agent 7 from about 2003 until December 2004.  On 1 January 2005, he was made a permanent Agent 7.  The plaintiff’s employment with the defendant was terminated on 13 April 2010.

9.  As one would naturally expect the work of a loading agent can be and is physically demanding.  As a result, the defendant had to ensure that members of loading teams had a safe work environment and that they were trained to handle the work expected of them by adhering to stipulated work practices and procedures.  In meeting this objective, the defendant had a fairly elaborate team structure in place to deal with the loading and unloading of luggage and cargo to and from an aircraft.  A typical loading team consisted of an Aircraft Loading Supervisor (Supervisor), two Aircraft Loading Agent 3s (Agent 3), two Aircraft Loading Agent 6s (Agent 6) and two Agent 7s.  An Agent 6 was responsible for operating ground support equipment to facilitate the loading and unloading of cargo, luggage and mail to and from an aircraft and also when necessary assisting in the physical loading and unloading. An Agent 7 was responsible for the physical loading and unloading.  The defendant had in place an arrangement for additional back‑up and support, so that in the event of tight schedules or heavy loading, the team supervisor could request and would receive additional manpower from other loading teams.

10.  As part of the plaintiff’s training, he attended and passed a three‑day basic training course for new employees.  This covered training in relation to guidelines and instructions for manual cargo handling operations, including dealing with different manual cargo handling situations.  The defendant arranged training for its employees on all necessary aspects and techniques of manual cargo handling.  The plaintiff also attended and passed a review course which included training him to adopt the correct postures and techniques for lifting and carrying when conducting manual cargo handling.

11.  The defendant took issue with the various complaints that the plaintiff made under his claim.  The defendant pointed out that the plaintiff had never complained about shortage of labour or difficulty that he had in performing his work on account of shortages of labour.  The defendant also pointed out that the plaintiff had not revealed that he suffered any serious medical problem with his right shoulder or left knee between 2005 and 2007 except for the occasional short period of sick leave from which he would always return immediately and carry out his normal duties.  The defendant claimed that at all times appropriate support and arrangements were in place to ensure that the work environment of the plaintiff was safe and that there was minimal risk of injury or accident in the work he did.

Plaintiff’s injuries

12.  The plaintiff was born on 3 December 1965.  He claimed that he noticed he had left knee weakness when walking in about 2006 and 2007.  He consulted the defendant’s doctor, Dr Kenric Lau Sing Ki on 11 May 2007.  An MRI scan was performed on his left knee at the Baptist Hospital on 21 May 2007 which revealed a meniscus cyst and cartilage injury.  The plaintiff resumed duty after he was discharged from the hospital and as part of his follow up treatment, he was given intra‑articular injections. 

13.  On 6 July 2007, the plaintiff claimed that he suffered from swelling of the left knee after working and sought treatment for it.  He was recommended to perform light duties up to 30 September 2007.  He attended Fanling Occupational Health Clinic on 1 August 2007 for treatment and at this stage he was complaining of not only of left knee pain but also of right shoulder pain.  It was observed that the range of movement of his right shoulder abduction and internal rotation was diminished and that he had tenderness over his knees.  He attended the clinic for follow up treatment on 18 February and 12 March 2008. 

14.  From 14 September 2007, the plaintiff attended the Orthopaedics & Traumatology Department of Caritas Medical Centre for treatment.  It was recorded that he complained of pain over the right shoulder around the rotator cuff region and that he was experiencing discomfort around the anterior knee region.  An MRI scan of the right shoulder revealed a labral tear with suspicious tear around the supraspinatus tendon.  The plaintiff was advised to have an operation on his shoulder and he was referred to the Orthopaedics & Traumatology Department of Kwong Wah Hospital.  It was recommended that he carry out light duties up to February 2008.  On 15 February 2008, he commenced attending Kwong Wah Hospital for treatment and on 26 March 2008 a right shoulder arthroscopy was performed on him.  It revealed a labral tear of the right shoulder which required arthroscopic repair and subacromial decompression.  Further light duties were recommended.  After the operation, the plaintiff received physiotherapy and occupational therapy at Kwong Wah Hospital. 

15.  As already noted, as a result of the plaintiff complaining of pain to his right shoulder and left knee and after a period of sick leave, the defendant arranged for him to carry out light duties from 20 August 2007.  The light duties he performed included the delivery of instructions, the unpacking and stacking of forms, the refueling of ground vehicles, and other miscellaneous tasks involving checking of work items and distribution of material. 

16.  The plaintiff was assessed by Dr Affandy Hariman, a doctor provided by the defendant, on 6 January 2009 and thereafter he received 18 sessions of treatment ending on 29 May 2009.  During the course of which he agreed with Dr Hariman’s recommendation that he perform light duties for half a day and normal duties for the remaining half day with a view to him resuming normal duties.  He was put on the mixed duties for 33 days between March and May 2009 and in addition to his light duties he was required to load and unload 2 flights per day.  He complained specifically that during this period his injuries were aggravated or exacerbated when doing loading and unloading work. 

17.  After this period of mixed duties he was variously given sick leave and returned to light duties.  It was recommended that he was unfit for further employment and in particular to load and unload flights.  He left the employment of the defendant 13 April 2010. 

18.  From September 2010, he obtained employment doing delivery work for various restaurants.  It was during this period that he was put under surveillance and observed to have normal movement of his lower and upper limbs. 

The joint medical examination

19.  The plaintiff was medically examined by Dr Lam Yan Kit for the plaintiff and Dr Chun Siu Yeung for the defendant on 5 October 2009 and 26 November 2012.  Both doctors agreed that the plaintiff was suffering with SLAP lesion in relation to his right shoulder and CP in relation to his left knee.  They found that the plaintiff’s conditions did not match the known occupational diseases specified in the Employees’ Compensation Ordinance, Cap 282, Second Schedule.  They also found that there were no recent injuries to cause the plaintiff’s conditions. 

20.  Dr Lam was of the opinion that the plaintiff’s conditions could be aggravated by the nature of his occupation as it seemed that his left knee condition continued to deteriorate.  Dr Chun disagreed and was of the opinion that the plaintiff was suffering from degenerative diseases affecting his right shoulder and left knee which were common conditions in the general population.  Dr Lam was also of the opinion that as a result of the plaintiff’s current condition he was not suitable to resume his previous occupation and that he was more suitable for jobs of moderate to light duty. He said that jobs that required squatting and kneeling would not be good for him but suitable jobs included cashier, messenger, car park attendant or petrol station attendant.  These were the duties that the plaintiff was assigned to when the defendant became aware of his conditions in August 2007. 

21.  The doctors agreed that the CP was not simple wear and tear type of cartilage degeneration associated with repetitive movement and that the crucial factors that lead to the biomechanical changes in the cartilage are malcongruence, malalignment and muscle imbalance.  They also agreed that the nature of the plaintiff’s job by itself was not the cause of the CP.  Dr Lam, however, was of the opinion that the nature of the plaintiff’s job and the presence of the SLAP lesion and CP would exacerbate his symptoms.  He understood that the light duty work assigned to the plaintiff required him to squat down in the process of fueling vehicles and the resumption of normal duties when he was assigned mixed duties aggravated and prolonged his right knee injury.  Dr Chun agreed with Dr Lam’s view but noted that both conditions were developmental pre‑existing conditions with symptoms likely to appear at any time.  I note, however, that the refueling of the vehicles did not require the plaintiff to squat down. 

22.  After the first joint medical examination on 5 October 2009, surveillance footage was taken of the plaintiff on various days between August and November 2011.  He attended a second joint medical examination on 26 November 2012.  The plaintiff claimed to the doctors that he was experiencing pain to his right shoulder and left knee and that he had difficulty in walking and bending his left knee.  He walked with a limp and with his left knee straight without much flexion.  The doctors agreed on the following was shown on the recorded footage of him. 

“(1) At no time he was limping and at no time his left knee was kept extended while walking. His gait was normal. His pace when strolling was normal, when walking could be fast walking. The lower limp movement was smooth and natural. He walked up a few steps of the police station normally.

(2) His right upper limb movement was smooth and natural. There was no sign to suggest right shoulder, right trapezius pain. During walking the swinging of the upper limbs was normal. He picked up objects with right hand but tended to carry the plastic bag with left hand also both hands. In his car, he rested his right forearm on the window frame naturally with the right side car glass lowered. He put the pass to the senor of barrier gate with his right hand. When he steered the car the right upper limb agility was smooth and natural.

(3) He was working driving a car delivering lunch boxes to various places at/around the airport.

(4) In short there was no abnormality noted from the VCD. He had exaggerated his disability showing limping and keeping left knee extended during the examination.”[1]

23.  Dr Lam acknowledged that the video recording showed that the plaintiff demonstrated good right shoulder range of motion and that he was able to lift and carry moderate heavy objects and that he had no problem with ground level walking, but he maintained that this was consistent with his current symptom as no activities were captured of him squatting or climbing stairs.  I disagree with this assessment of the footage of the plaintiff.  He is clearly seen to be able to move and function normally without restriction and I note Dr Chun’s comments:

“Contrary to what Mr. Li presented at our second joint examination, showing limping, keeping left knee straight during walking with limp the VCD showed no limping, normal movement of the knees with walking and he could walk at rather quick pace. He could drive his cars during which he needed to flex the knees. He could get in and out of the car naturally, smoothly and without any adaptation. His upper limb agility was smooth and natural and without limitation, resting on the window edge reaching to the sensor. He had exaggerated his symptoms and disability at our joint examination. He is able to return to his normal duty without limitation.”

24.  Both doctors agreed that the plaintiff would have made full recovery with respect to his shoulder after 9 to 12 months and assume normal duties.

The plaintiff’s case

25.  The plaintiff presented his case by showing a video recording of the performance of the light duties he was required to carry out which involved him unpacking and sorting out in shelves an array of forms and refueling vehicles. The plaintiff argued that the footage showed three persons working at the refueling station where he alone was assigned to do this task.  From my observation of what was involved, it was not very demanding or strenuous and would have required little physical effort on his part.

26.  Mr Law Chi Yuen gave evidence on behalf of the plaintiff.  He is a colleague of the plaintiff and worked as an Agent 6 in the Cargo Freight Handling Team.[2] He left the employ of the defendant and is now a photographer.  When he worked as an Agent 6, he would receive instructions from his supervisor and this would include delivering goods from and to the cargo station and the airport, and dealing with cargo planes, similar to the work of the plaintiff.  He would sometimes take over the work of an Agent 7 in handling a cargo plane as part of a Cargo Handling Team but not as part of an Aircraft Handling Team.  In his statement, he said the workload was very heavy and he claimed he suffered an industrial accident due to understaffing, refueling vehicles, making a record of the refueling and unscrewing the petrol cap of vehicles which required him to bend.  He would do this work for 4 hours without a chance to take a break.  He performed light duties for 7 months.  In all that time, he claimed he was not permitted to take a toilet break and never did.  In the afternoon he would do the postal duties. 

27.  I found that he exaggerated his evidence and not very helpful at all.  He confirmed that he never worked in the Airport Handling Section but claimed he did the same work when it was clearly different.  He confirmed he had a claim against the defendant for personal injuries which was settled.  The nature of the injury he claimed he suffered was a lower back injury, and accordingly what aggravated his injury was bending.  When he performed his light duties, he had problems bending but had no idea if that was a problem for the plaintiff which it was not. 

28.  In any event, whatever his particular difficulties with the light duty work, it is clear to me that the tasks and responsibilities described were light duties and not very onerous or demanding physically.

The plaintiff’s evidence

29.  Mr Li Ming Tak, the plaintiff, testified that his shoulder was only 50% good and he illustrated his disability by explaining that he felt pain and numbness to his right shoulder when carrying something.  He said he was slightly unsteady when he walked downstairs because of his left knee, but otherwise he had no problems.  He said he was currently working part‑time doing delivery work.  He had been doing this work for almost two years.  He claimed he tried to get full time work but nothing was available.

30.  He confirmed that when he worked for the defendant, he was an Agent 7. He said that usually there were two Agent 7s on a team.  He would place traffic cones to close off the area and then load and unload luggage.  He said that they would also obtain a dolly (a small trailer) which was used for conveying luggage and cargo.  A loader, which was an electric belt conveyer, would be put in place by an Agent 3, going from the ground to the door of the compartment of the plane.[3]

31.  He said he would walk up to the compartment and would receive luggage or cargo which he would load or unload.  He stated that the height of the compartments in a narrow body plane was generally low and a handler had to be in a crouching position to load and unload.  On a wide body plane the only low compartment was the bulk goods compartment.  He claimed that usually luggage would come up quickly from the conveyer belt and he would have to physically load the luggage into the compartment.  He claimed there were no devices available to move heavy items within the compartment.  He claimed he followed the instructions of his employer when handling goods.  He was shown a photograph of workers handling goods in a cargo hold which showed two workers stacking goods.[4] He claimed he generally worked on his own when doing this work.  He acknowledged that the compartments had rollers on the floor to move heavy items but there were insufficient available and usually they were broken.  He said the roller was impracticable in the low level compartments.  He also complained that he had to handle heavy items which put a strain on his body, such as, heavy luggage or rolled up carpet.[5] 

32.  He also worked with cargo planes.  He would place traffic cones and obtained dollies as normal.  His task would be to load or unload goods and he would load the pellets onto the plane.  He claimed there was little mechanical assistance to load a cargo pellet onto the plane.  He later agreed that a pellet would be loaded by a mechanical loader.  He acknowledged that a cargo hold would be lined with rollers on the floor and little manual labour was required.[6] However, he said the electric wheels broke down frequently and out of eight flights a day, he would experience this problem with two or three flights.  However, he never complained about the matter.

33.  He was shown another photograph of a handler pulling a container[7] and said sometimes they were required to pull a container into the plane and this put a strain on his body.  In addition, he said sometimes pellets through use would lose their shape and this made them difficult to handle.

34.  He was asked to comment about the footage depicting light duties.  He confirmed he was put on light duties and worked refueling vehicles.  He said in the footage there were three persons doing the refueling but when he was assigned to do it, he said he was the only one.  He would work from 7 to 11 am but claimed he could only rest occasionally and generally before a vehicle came for refueling.  He said that in order to take a toilet break he would have to get permission.

35.  He acknowledged that the work did not require physical assertion but still claimed that the handling of a petrol gun was physically demanding.  He even went as far as to say that unscrewing a petrol cap, the pressing of the button to start the refueling and recording the details of the refueling of the vehicle were demanding on him.

36.  I disbelieved him as he was clearly exaggerating his evidence about the demands and difficulties he claimed he experienced when performing these light duties.  The duties were basic and did not require any significant physical assertion on his part.

37.  In his witness statement, he said that he stopped doing refueling work when he complained he had pain in his wrist.

38.  He complained about delivering documents because that required him to walk nonstop.  He said he experienced a little difficulty even though he was not required to carry anything heavy.  He was only required to deliver documents over a very short distance of 30 to 40 metres.

39.  He confirmed that the only complaint he had in respect of the light duties was with the refueling and delivery work.

40.  He confirmed that he joined the defendant on 18 August 2003 as a temporary Agent 7 and became permanent on 2 January 2005.  He went through an induction course which lasted three days and was given a Basic Training Course.[8] He was given detailed instructions about the procedures to be followed and the correct positions and postures to be adopted when lifting and handling goods.  Later in 2006, he acknowledged that he completed a refresher course,[9] at the conclusion of which he had to pass a test

41.  He was taken to an Employee’s Safety Health Manual which contained a section on Manual Handling.  It set out instructions as to what to do and the procedures that should be followed in doing loading work.  He claimed that when he did his work he did not follow the guidelines and instructions of the handbook because of time constraints that were imposed on them to do the loading work.

42.  He agreed that he worked 9½ hours a day.  He acknowledged that the time limit fixed for loading and unloading of a plane was one hour but it normally would take 30 minutes.  

43.  He agreed it took 30 to 45 minutes to load or unload a plane and assuming he had to deal with eight flights a day that would involve about 6 hours of actual loading or unloading work in a 9½ hour working day.  He agreed, taking into account a one hour meal break, it would mean that for 3½ hours he would not be doing loading work.

44.  He disagreed that narrow body planes only constituted a minority of the planes for which he had to do loading work, but when he was taken to his work record which he did not dispute, it showed that over the years narrow body planes only represented about 16% of the number flights for which he would do loading work.[10] He claimed that half of the flights he dealt with on a daily basis were narrow body planes.  It was noted that he had made supplemental statements to answer matters raised by the defendant but made no comment and did not dispute these figures even though he addressed a wide range of other matters.

45.  I have no doubt that he would have corrected this matter as he did with so many others, and it seems to me that he was not being truthful and embellishing his evidence by exaggerating the number of narrow body planes he had to handle.

46.  He complained that with wide body planes sometimes the Power Distribution Unit (PDU) did not work and that he had to manually handle the goods, that is, the containers would be pushed or pulled along the roller tracks.  But he agreed that other team numbers helped in such a situation.  He also complained that most of his work in relation to wide body planes involved him loading or unloading bulk goods compartments but that he would assist when the PDU was not working.  He confirmed that he did overtime work for which he was paid extra and that was voluntary.

47.  He acknowledged that the teams organized by the defendant included a two‑member “fire‑brigade” team which would help a team when a plane was heavily loaded or additional assistance was required.  It was common for them to assist in the case of a narrow body plane, as there was no PDU in use, and an Agent 3 would be available to assist in the loading.  A conveyer belt would feed the goods to the compartment, with up to three handlers helping out load the goods inside.  He also acknowledged that the defendant put in place a “T team” specialized in handling narrow body planes which consisted of seven members. 

48.  The plaintiff was taken to the figures of the number of teams that the defendant employed from 2003 to 2008 and in that time the number of teams increased by 25% while the percentage of work increased only slightly.

49.  He acknowledged that as the cargo hold in a narrow body compartment was small, it could only store a small quantity of goods and the items were generally small as a consequence.

50.  He confirmed that he was instructed that when required he should change duties with the other Agent 7 in the team to break the repetition or strain of the particular task he was performing.

51.  He was questioned about his claim that he was responsible for loading and unloading loose items that weighed about 3000 kilograms.  This was pointed out to be misleading as he had assistance when they were required to load heavy items.

52.  He confirmed that when he joined the defendant he was medically examined, and that he declared at the time he was in good health and had not and did not suffer with any physical injury or disability.[11]

53.  He stated he had no medical problem before September 2005 when he claimed he felt tired and pain to both shoulders.  He said from mid 2006 the pain in his shoulder intensified and he consulted Dr Choy Hok Kan many times.  He produced medical certificates,[12] most of which were unrelated to the injury he said he had with his right shoulder.  There was one on 8 January 2006,[13] and another eight months later on 8 September 2006.[14] On each occasion he was given one day’s sick leave only.

54.  He acknowledged that prior to 11 May 2007, there was no reason for the defendant to believe that he had any health problems.  He consulted Dr Kenric Lau on 11 May 2007 but it was only with respect to pain to his left knee.[15] There was reference to the right trap muscle pain even though he said his main complaint was with respect to his knee.  Nevertheless, he was not given sick leave and went to work as usual.[16]  He was given a referral for an MRI and attended the Hong Kong Baptist Hospital on 21 May 2007 and discharged the next day.  Dr Lau gave the plaintiff a sick leave certificate from 21 to 29 May 2007.[17]  He confirmed that he did not submit or take the sick leave recommended by Dr Lau.  He worked on 23, 25, 26, 27 and 29 May 2007.[18]  He acknowledged that the defendant did not know and would not have known of his complaint or injury.

55.  He went back to the doctor for injections but they were on his days off.  He acknowledged that the defendant would not have known of his condition at the time.[19] He had been granted sick leave from the 3 to 15 July 2007.[20]  Dr Lau granted a light duties certificate on 6 July 2007 from that date to 31 July 2007.[21]  He was off duty for the whole month of July and when he reported back for duty on 2 August 2007 the light duties certificate had expired.  He worked as normal on 2, 4, 5, 6 August 2007 and went on sick leave until 19 August 2007 when he returned to work on 20 August 2007 with a light duties certificate from 18 August 2007 to 30 September 2007.[22]  He was put on light duties and assigned to work with the administration department.[23] 

56.  On 20 August 2007 he received training in relation to his light duties work.  He was given a job assignment and instructions.[24] Throughout this time, his medical problem was with his knee with no reference to his medical problem in relation to his shoulder.  Nor did he convey to the defendant that he had a problem with his right shoulder.

57.  He stated in his witness statement that on 1 August 2007 he attended the Fanling Occupational Health Clinic because of pain to his right shoulder and left knee.[25] However, it was noted that in the medical report he complained of three episodes of right shoulder dislocation which was replaced by a bonesetter or himself.[26]  In contrast, on 14 September 2007, he attended the Caritas Medical Centre to seek medical attention for his shoulder[27] and complained that his right shoulder pain was as a result of repetitive heavy lifting involving both upper limbs.  There was no mention of the three dislocations.  He received an MRI scan on 12 November 2007 at Hong Kong Baptist Hospital which revealed a labral cyst and a SLAP lesion to his right shoulder.[28]  He was at this stage on light duties.

58.  He attended the Caritas Medical Centre on 15 February 2008 for his right shoulder.  He was given a light duties certificate.[29] He was scheduled to have an operation on his shoulder which took place at the Kwong Wah Hospital on 19 March 2008.  He was given a sick leave certificates from 19 March to 25 May 2008, 21 March 2009 and from 4 April to 5 April 2009, and granted light duties certificate.  On 28 August 2008, he was recommended for light duties for 12 weeks.[30]

59.  He received physiotherapy and occupational therapy at the Kwong Wah Hospital until 19 January 2010.  Previously, on 20 May 2008, he was referred to occupational therapy for right shoulder mobilization and he informed the therapist that he had 60% recovery.[31] In a rehabilitation report from Kwong Wah Hospital on 24 June 2008 which compared his condition to 31 March 2008, it recorded that he had full range of motion of his right shoulder.  He informed the doctor that he had 70% improvement of both his right shoulder and left knee pain.[32]

60.  In a report dated 25 February 2009 from the Kwong Wah Hospital it stated that: [33]

“The patient started physiotherapy in our department on 31‑3‑2008. He presented mainly with right shoulder pain which was tender and swollen. Physical examination revealed limitation in range of motion of his right shoulder. Both flexion and abduction ranges were 45 degrees. Reduction in the muscle strength was noted over the shoulder. Physical treatments including magnetic field therapy, ice/heat therapy, shoulder pendulum exercise as well as passive shoulder mobilization exercise and gentle active shoulder exercise were given for pain relief, promotion of soft tissue healing and improvement of shoulder joint mobility. Gradual mobilizing and strengthening exercises were offered at a later stage.

Treatment for left knee pain was commenced on 24‑2‑2008. There was swelling noted over the left knee. Range of motion of left knee was found normal and there was a mildly decrease in the muscle strength. He could walk unaided independently but complained of left knee pain on stair-walking. Ice therapy, ultrasound treatment and strengthening exercises were given to left knee.

The patient demonstrated a steady improvement during the course of treatment.  Re-assessment on 24‑7‑2008 showed an overall subjective improvement of 80% in his right shoulder and 70% in his left knee.  There was only little pain with stretching feeling remained over his right shoulder and the joint motion was full in all directions.  Muscle strength was also improved.  There was no more swelling in his left knee and pain had been decreased. Strength was also improved.  The patient had completed totally 18 sessions of treatment and he was discharged from our department on 7‑8‑2008 when he finished his last session because of satisfactory progress.  Another two physiotherapy assessments had been performed when the patient was followed up in the Shoulder Clinic on 3‑7‑2008 and 28‑8‑2008.”

61.  He accepted that four months after his operation he had made satisfactory recovery.  In a consultation note of the Shoulder Clinic of Kwong Wah Hospital dated 31 July 2008 it was recorded that he had made very good recovery.[34] It stated that the right shoulder SLAP repair after four months of the operation was well and that there had been 80% improvement in reduction of pain and enhancement of rotation.

62.  The plaintiff received no further light duties certificate from the Kwong Wah Hospital after the one given for 12 weeks on 28 August 2008.[35] On 18 November 2008, he met with Human Resources representatives of the defendant and they discussed his future work arrangement.  It was agreed he would be subject to a medical evaluation by Dr Hariman but in the meantime he was allowed to continue to do light duties even though he had no certificate.  The plaintiff claimed he was forced to consult Dr Hariman and not allowed to consult other doctors who would have put him on light duties.  He stated in his witness statement that:[36]

“Although I all along had the letters for light work issued by the Hospitals and private doctors, the Defendant requested me to only consulted Dr. Affandy Hariman for medical treatment since January 2009. I did not know the relationship between Dr. Affandy Hariman and the Defendant. I just felt that although the Orthopaedist of the Hospital always suggest me engaging in lighter works, Affandy Hariman often neglected my condition and even requested me to work on the abovementioned light work for half day and return to the original post of loading and unloading of flights for the other half day. As he was the doctor arranged by the Defendant, I had to follow his recommendations. Therefore, from March 2009 to the end of May 2009, I worked on the so‑called light work for half day and loading and unloading of flights for the other half day. Due to the injuries over my right shoulder and left knee, my working pace greatly decreased. I could not transport too heavy baggage and freight, which have to be left to be transported by the other Agent 7. After one day’s work, I had severe pain in my right shoulder and left knee. When I could not tolerate the pain, I could only go to the clinic of Dr. Affandy Hariman for medical consultation. Therefore, during the period of doing half‑day work of loading and unloading of flights, I had gone to consult Dr Affandy Hariman for many times. However, Dr Affandy Hariman did not pay attention to it. He all along requested me to do the half‑day work of loading and unloading of flights. He even suggested me taking pain‑killers when I felt pain during the loading and unloading work.”

63.  He attended Dr Hariman for his knee pain on 23 January 2008 and he was granted two days of sick leave.  He made no request for light duties. An attendance on 7 February 2009, he was granted one day of sick leave.  A further attendance on 17 March 2009, he was granted one day of sick leave. During this time, he saw Dr Hariman for other medical problems such as an upper respiratory complaint. 

64.  I do not believe the plaintiff that he was forced to only see Dr Hariman and could not see another doctor.  He claimed that if he was able to see another doctor he would have been granted a light duties certificate.  He attended the Kwong Wah Hospital on 21 March 2009 complaining of right shoulder and joint pain.[37] He was granted one day sick leave only.  Despite his statement that he had severe pain in his right shoulder and left knee,[38] the doctor only gave one day sick leave and that light duties was not applicable.  He attended the Kwong Wah Hospital again on 4 April 2009, complaining of right shoulder and knee pain.  He was granted two days sick leave with light duties not applicable.[39]

65.  Dr Hariman advised him to carry out mixed duties as part of his rehabilitation to resume normal work.  This required him to do two flights a day which was less than half day normal work and half day light duties.  He commenced mixed duties on 13 March 2009 and stopped doing it at the end of May 2009.  On 1 June 2009, he went on light duties.  He was on mixed duties for 33 working days.

66.  He acknowledged that he was advised he could see other doctors but as pointed out to him, he continued to see Dr Hariman.  He saw him during this period for other medical aliments for which he was granted sick leave.[40] It was towards the end of May 2009 that he complained to the defendant of his medical problems and he was put back on full light duties. 

67.  He stated in his witness statement that on 29 May 2009 he consulted Tung Chung General Out Patient Clinic and the doctor granted a letter for light duties until 25 September 2009.[41]  The medical report revealed that the doctor only gave three days sick leave and contrary to what he stated he could resume work.[42]  It was revealed in re‑examination that he was given two weeks light duties on 3 June 2009 and 15 June 2009 upon attendance at the Tung Chung General Out Patient Clinic.[43]  On 2 July 2009, he attended the Kwong Wah Hospital and was given 12 weeks light duties.[44]  He further attended the hospital on 29 October 2009 and he was given three months light duties and it was suggested he consider a change of job “to avoid recurrent attack of shoulder/neck pain”.[45]

68.  The plaintiff left the employment of the defendant on 13 April 2010.  Up to that point he had sought medical treatment from various doctors and produced many sick leave certificates during this time.  However, there is not a single sick leave certificate or a medical record seeking medical treatment after he left the defendant’s employment.  The last medical record for sick leave was for three days for knee pain on 20 March 2010.  Prior to that were a series of frequent medical certificates for sick leave.[46]

69.  There were no medical records produced by the plaintiff in relation to medical treatment for his knee or shoulder.  When this was pointed out to him, he claimed he attended the Kwong Wah Hospital but this was a yearly follow up appointment made on 2 July 2009 for 8 July 2010 and it appeared he did not attend.[47] He acknowledged if he received medical treatment for his shoulder or knee he would have produced any medical records or reports to his lawyers.

70.  It was suggested to the plaintiff that he had fully recovered and that was evidenced by surveillance of him taken in 2011. 

71.  In my view, the plaintiff has been exaggerating to the point of pretending the nature and degree of injury to his shoulder and knee and this was the view expressed by the doctors who examined him.  The doctors stated in their report that his movement was normal.[48]

72.  Video recordings were played which were taken on 3, 4 and 6 October 2011.  They depicted the plaintiff driving a vehicle, using both hands while steering and turning the wheel of the vehicle.  The movements were quite vigorous and appeared to be made with relative ease.  He was also captured turning and bending his body as well as picking up, lifting and carrying items with both hands.  He was able to walk and move normally.  There was no restriction of movement with his right shoulder or left knee.  He claimed he did not need to use his left knee when driving an automatic vehicle.

73.  He agreed his right hand was as dexterous as any normal person as shown by the video recordings but he claimed he was carrying something very light. He also agreed he was able to use his hands and drive a vehicle with ease.

74.  He was taken to reports of Kwong Wah Hospital which recorded he made full recovery of movement to his right shoulder and left knee and that he felt he had made 70% improvement of right shoulder and knee pain on 24 June and 24 July 2008.[49]

75.  On 21 August 2008, he was given a work evaluation by the Kwong Wah Hospital.[50] This was some weeks after the positive reports previously given.  He had been consistently assessed since January 2008 of having full range of motion, abduction and rotation of the shoulder but at this assessment he had displayed substantial deterioration and his subjective recovery was 50% recovery of his shoulder and 40 to 50% recovery of his left knee.  He was unable to explain this significant difference and it was clear he was exaggerating his symptoms as he knew this was an assessment to determine whether he could resume his work duties.

76.  He was taken to his supplemental statement where he said that 6000 pieces of luggage were loaded in a narrow body plane which was contrary to his first statement where he said the luggage and freight weight of a narrow body plane was 6,000 kilograms.[51] This was a clear exaggeration.

77.  He said for wide body plane the loose goods was more than 2,000 pieces but this would mean the items would weigh about 1.5 kilograms given what he said in his first statement that the weight of loose items would be about 3,000 kilograms.[52]

78.  The plaintiff was shown an appointment slip to attend Tung Chung Family Medicine Specialist Clinic on various dates, 16 April 2010, 6 August 2010, 17 September 2010, 25 February 2011, 8 April 2011 and 15 July 2011.[53] He said he attended the consultations.  The appointments were unrelated to his shoulder and knee injuries.  He was suffering with depression at the time and it was for that purpose he attended these consultations.  He was then shown receipts from Princess Margaret Hospital which he said were usually for the purchase of pain killers.[54]  He said he would consult a doctor at the hospital who would prescribe drugs for him which he would purchase from the pharmacy at the hospital.

79.  He was taken to a receipt for a knee support he purchased on 31 August 2011[55] but it would seem this was to bolster his claim.  I note he wore a knee support at the second joint medical examination in November 2012.   

80.  The plaintiff was taken to the appointment slip for 23 September 2013.[56] It was arranged on 29 April 2013 for an appointment 21 weeks later.  He claimed it was for a checkup in relation to his right shoulder and left knee.  It is noted that there was no report from the hospital about this attendance, if he attended it at all, or that it was in relation to his shoulder and knee.  He produced no receipt to evidence his attendance for this appointment. 

81.  He had put in reports unrelated to the claim.  He was taken to a medical report for a right knee lesion due to an unrelated accident.[57]  

The defendant’s evidence

82.  Mr Wong Chi Wai is a manager of the Aircraft Handling Department of the defendant.[58] He confirmed the work practices and duties set out in the two witness statements of Chuk Chun‑Kit who had since these proceedings left the employ of the defendant.[59]  He adopted Mr Chuk’s two statements and his own as his evidence in chief.

83.  The baggage handling staff in 2008 consisted of about 900 personnel (this figure included about 100 other staff).  At any one time, staff on duty would be about 60 odd personnel.  This included staff who worked overtime.  He was taken to photographs depicting the way staff had to handle goods.[60] Mr Wong explained that heavy items were usually loaded at the end and placed close to the door of the compartment.

84.  Mr Wong was taken to an Ergonomic report which he said he had not seen before this action.[61] However, he said they would give training and instructions as to the handling of goods.  He explained that a supervisor was required to give appropriate instructions to ensure rotation of work duties.  They were trained to do the rotation of job system and staff from the Safety Department which would remind them of it.  He would ensure this was done by checking and briefing supervisors about rotation of work.  He was taken to Mr Chuk’s statement who did not mention this arrangement.[62]  He explained whilst it was not mentioned it was the responsibility of the supervisor.  Supervisors would be briefed about the need for rotation of work and all staff would be briefed about new procedures.  He explained that the Assessment checklist for manual handling operations would be overseen by the Safety Department which would make recommendations[63] and he would implement the recommendations made by the Safety Department.  He recalled they had given guidelines about having to ensure the supply of water during exercises before engaging in manual work.  Instructions or directions from the Safety Department would be put in writing and actioned.  He explained that the handbook would be updated from time to time. 

85.  He was asked about the traffic cones and how heavy they were.  He said each weighed less than two kilograms and was easy to handle.  He said he could hold one with one hand.  He acknowledged that working in an aircraft compartment was hot and noisy, although he pointed out that it was nosier outside. 

86.  He was taken to the Training Manual and the correct and incorrect posture when lifting objects.[64]

87.  He confirmed that the basic salary of an Agent 7 was about $6000 odd per month.  In addition, certain allowances were also available to staff.  There was an attendance allowance of about $30 per day.  The general income of an Agent 7 was about $10,000 including overtime allowance.  He was taken to a photograph of a bulk cargo compartment of a wide body plane that was fully stored with cargo inside.  He acknowledged that the job would involve some difficulty.[65]

88.  Mr Hung Hing Nam was a Duty Controller but was currently an Assistant Manager of the defendant.[66] He was responsible for light duties for the plaintiff.  He said that refueling petrol would last about five hours a day and it would take around five minutes to refuel a vehicle.  It was put to Mr Hung that it was more appropriate to bend the knees than bend the back when refueling.  He confirmed the job was normally done by at least two persons, unless one of them was sick.  He said that it would take place from 7:30 to 11 am and two vehicles could be refueled at a time.

89.  Mr Chan Wing Ho was a Duty Controller of the defendant.[67] He previously worked as an Aircraft Loading Supervisor responsible for leading the teams to go out to work.  He acknowledged that the job of an Agent 7 was labour intensive.  He confirmed that the need for job‑rotation was taught to supervisors, of which they reminded from time to time by the company.

90.  Usually the time taken for unloading would be 35 minutes and for loading would be one hour.  He would usually arrange the teams to do a compartment at a time.  In relation to the two who operated the trailers, one was responsible for stacking the goods and the other one was responsible for conveying the goods. 

The defendant’s case

91.  The defendant’s case briefly stated was that the medical conditions complained of by the plaintiff were not caused by his work.  The defendant argued that the pushing and pulling of heavy loads could not have caused the SLAP lesion or CP complained of by the plaintiff.  The defendant relied on medical opinion that CP is not simple wear and tear type of cartilage degeneration associated with repetitive movement, but a biomechanical change in the cartilage due to malcongruence, malalignment and muscle imbalance, and therefore the job of the plaintiff was not the cause of chondromalacia.  The defendant also argued that there was no evidence of any negligence or breach of duty on the part of the defendant to be held liable for the medical conditions of the plaintiff.  It was also pointed out by the defendant that prior to July 2007 there was nothing to alert the defendant that the plaintiff was having any problems with his right shoulder and left knee.  However, as soon as the defendant was put on notice of the plaintiff’s knee condition in around July 2007, the plaintiff was relieved of his duties as an Agent 7 and was given light duty work.  Both medical experts agreed that the plaintiff could handle light duties that did not involve working inside cargo compartments and climbing stairs.  The plaintiff continued to do light duty work until 13 March 2009 when upon the recommendation of Dr Hariman, the defendant arranged the plaintiff to load or unload one flight in the morning and one flight in the afternoon per shift and to do light duty work for the rest of the shift.  This continued until after May 2009 when the plaintiff resumed light duty work again. 

92.  Neither medical expert suggested that the performance of mixed duties for this period of 33 working days had any permanent effect on the plaintiff’s ability to do light duty work.  From June 2009 to April 2010 when the plaintiff resigned, he performed only light duty work.  The defendant argued that from the time when it became aware of the plaintiff’s knee problem in July 2007, it had taken reasonable care of the plaintiff in respect of his health and safety and that the 33 day of mixed duties work were assigned to the plaintiff pursuant to the advice of Dr Hariman, as part of the medical evaluation of the plaintiff to assess his suitability to resume his previous duties.  It is pointed out by the defendant that during this period, that is, after 19 November 2008, the plaintiff had no light duty certificates and medical assessments of the plaintiff after his shoulder operation in March 2008, repeatedly showed that he had been making very satisfactory recovery.  The defendant submitted that upon the plaintiff leaving its employment, he was perfectly fit for light duty work and this was illustrated by the surveillance video recordings which showed him handling his driving and delivery work with relative case.

93.  SLAP lesion is caused by repetitive overhead throwing, or possibly, by previous injuries such as shoulder dislocations.  When the plaintiff visited the Fanling Occupation Health Clinic on 1 August 2007, he disclosed that he had had three episodes of right shoulder dislocations previously which he replaced either by bonesetters or himself.  He had also mentioned this history of shoulder dislocations to the Occupational Therapy Department of the Kwong Wah Hospital.  

94.  It is conceded by the plaintiff that the shoulder dislocations had nothing to do with his work with the defendant and there is no pleading in the plaintiff’s case to the contrary. 

95.  On the issue of whether the plaintiff had been engaged in repetitive overhead throwing, he told the medical experts that there was no overhead work and nor was it required for his job.  The defendant argued that no evidence was presented to trial to suggest that the plaintiff had engaged in overhead work, left alone on a repeated basis. 

96.  CP is caused by the biomechanical changes in the cartilage from malcongruence, malalignment and muscle imbalance.  These are pre‑existing skeletal or muscular conditions and are not caused by the nature of the plaintiff’s job.  Accordingly, as submitted by the defendant, there is no evidence to link the plaintiff’s medical conditions to his work as an Agent 7. 

97.  Even though both medical experts agreed that the plaintiff was perfectly fit to perform light duties before and after his shoulder operation, the plaintiff nonetheless insisted that he had difficulties in refueling vehicles and delivering documents.  I must say that I found the plaintiff’s complaints about refueling vehicles to be implausible and unconvincing.  He complained that refueling vehicles was demanding on him because it involved unscrewing petrol caps, pressing of buttons and recording of the vehicles that had been refueled.  He also complained that this was done on a repetitive basis, on his own and without any break to go to the toilet.  He also complained that he had to squat down to unscrew petrol caps but there was no suggestion that he had any difficulty bending his body or that he had a problem with his back. 

98.  I find that the plaintiff has exaggerated completely the physical demands of refueling vehicles in order to bolster his claim against the defendant.  

99.  The plaintiff also complained about the work that he had to do in delivering documents.  He acknowledged that the delivery of documents only required him to carry a few sheets of paper and to walk only a short distance and yet he complained that this task caused him difficulty in walking.  His medical conditions did not affect or impede his ability to walk or to do any of the physical tasks required of him in the performance of these light duties.

100.  There is clear evidence that the plaintiff has exaggerated his claim and that is best shown by the fact that after the plaintiff had undergone an operation on his right shoulder on 26 March 2008, he received physiotherapy and occupational therapy for his right shoulder and left knee over the next few months, and had shown very satisfactory recovery.  By 24 July 2008, he showed an overall subjective improvement of 80% in his right shoulder and 70% in his left knee.  On 24 June 2008, Kwong Wah Hospital recorded that the plaintiff had full flexion and abduction of his right shoulder.  And yet when he attended a work evaluation on 21 August 2008, he told the doctor that he only had 50% recovery of his right shoulder and less than 50% recovery of his knee.  He had no explanation for such a dramatic deterioration as claimed by him when questioned on this issue.  Accordingly, I find that he had deliberately exaggerated his conditions and diminished the true state of his recovery in order to avoid resuming normal duties.

101.  The surveillance videos provide cogent evidence of the plaintiff’s exaggeration of his symptoms and disability.  The videos were taken between 11 August and 24 November 2011, and yet when he attended the joint medical examination, he purported to display that he could not walk properly because of difficulty flexing his left knee, but the contrary was revealed on the surveillance videos which showed the plaintiff walking normally without any restriction or difficulty.  The medical experts concluded after watching the surveillance videos that the plaintiff had exaggerated his symptoms and disability during the joint medical examination which took place on 26 November 2012.  Both medical experts agreed that the plaintiff’s right shoulder should have sufficiently recovered to perform normal duties by March 2009.  However, the plaintiff still maintained that he only had 50% of his maximum power.  I have no hesitation in accepting the joint medical expert opinion that the plaintiff could and should have had no difficulty at all in performing the light duty work assigned to him.

102.  Between March and May 2009, the plaintiff was put on mixed duties. Throughout this 33 day period, the plaintiff had not been able to obtain a light duty certificate from either the Kwong Wah Hospital or the other doctors that he had visited during this period.  As noted by the defendant, when the plaintiff had obtained a light duty certificate, on all occasions, he was accordingly put on light duty work.  During the period he was working on mixed duties, he was constantly being monitored and evaluated by Dr Hariman who even though employed by the defendant, the plaintiff treated as a family doctor and would visit him regularly for treatment of various other ailments.  The plaintiff was assigned mixed duties on the medical advice of Dr Hariman as part of the plaintiff’s treatment program.  The fact remains that the medical experts opined that by March 2009 the plaintiff had satisfactorily recovered from his shoulder operation and was able to resume light duties. This coincided with Kwong Wah Hospital ceasing the issue of light duty certificates to him.  There was also important evidence that the plaintiff had told doctors that he was able to tolerate the mixed duties arrangement.[68]

103.  I have to agree with the defendant’s submission that it is extraordinary that while the plaintiff had been able to produce a vast array of medical documents, such as medical reports, clinical notes and summaries and sick leave certificates, during the time when he was employed by the defendant, he had been unable to produce any medical documents in relation to his physical condition after he left the defendant’s employment.  It would appear that once the plaintiff terminated his employment with the defendant in April 2010, he has not sought or obtained any medical treatment for his right shoulder or left knee.  He did produce appointment slips for 8 July 2010 and 23 September 2013 at the Kwong Wah Hospital, but there was no evidence to suggest that he attended these appointments.  It would be expected that if he did attend these appointments there would be a relevant medical report or clinical notes or summaries that would be produced.  It is clear to me that almost immediately after he left the defendant’s employment, the plaintiff ceased to receive treatment for his shoulder and knee. 

104.  The plaintiff had to concede when he was shown in the surveillance videos that his right hand was as dexterous as any normal person and he had no problem when carrying large boxes.  He was regularly seeing using his right hand when driving a vehicle.  He was seen using his hand to make right hand signals and was able to easily manoeuvre the steering wheel with both hands when making tight turns.  He was also seen ascending stairs without any apparent difficulty and there was no sign of any limping. 

105.  The basis of the plaintiff’s claim was that his medical condition was a result of the work that he did and the strain that he was physically put under as an Agent 7 because the aircraft handling section of the defendant had all along been understaffed, there had been little or any sufficient rotation of the job, there had been a lack of safety training or the training provided was of no practical use. 

106.  The complaint about inadequate staff being employed by the defendant to do the work of the aircraft handling section was not supported by the evidence.  From the figures presented to the court, between 2005 and 2007, on average an Agent 7 would load or unload 5.78 to 6.18 flights during every shift.  The loading or unloading time for each flight would normally take 30 to 45 minutes, and in extreme cases may take 60 minutes.  A shift was about 9.5 hours with an Agent 7 spending no more than 5 hours on loading and unloading a flight.  This left about 4.5 hours in every shift during which time a worker would have a meal and other breaks as well as performing other duties that did not involve the strenuous type of work needed when loading and unloading a flight.  It was acknowledged that there may be occasions when the number of flights would be greater than the average and this would occur during high seasons.  But as rightly pointed out by the defendant, the plaintiff’s case was not that he suffered injury as a result of a particular incident or accident but that his work was consistently difficult and demanding and without adequate rest periods. 

107.  The figures submitted by the defendant, which were not disputed by the plaintiff, revealed that there was never a shortage of manpower and that the suggestion from the plaintiff that he was required to load or unload 8 flights per shift, while not supported by the figures accepted as reflecting the true situations, would nevertheless mean that there was still on average at least 3.5 hours per shift when a worker was not required to load or unload flights. 

108.  There were two types of planes that the defendant was required to load and unload.  There were narrow body planes and wide body planes.  The plaintiff placed emphasis in his claim on the fact that he had to load and unload narrow body planes which could only be handled manually.  It was alleged by the plaintiff that at least half of the flights he worked on were in relation to narrow body planes.  However, this was not supported by the evidence.  The figures submitted by the defendant show that less than 20% of the flights that the defendant had to serve were for narrow body planes.  The plaintiff’s work mainly involved loading and unloading wide body planes where the physical demands on the plaintiff were not as onerous as they were with narrow body planes.  It was confirmed in evidence that where the Power Distribution Units (PDUs) were fully functional or the Unit Load Devices (ULDs) in the main compartments were mechanically loaded and unloaded, and the Agent 7s were only required to load and unload baggage in the bulk cargo hold and to secure the locks at the main compartments to ensure that the ULDs were secured. Sometimes when the PDUs of a flight were not functioning, other team members would work together to push or pull the ULDs along the roller tracks on the floor of the goods compartment.  It was also acknowledged that in the bulk cargo hold only a few baggage were stored which were quite small and loose items or select baggage, but the need to load or unload baggage from the bulk cargo hold was limited and not as demanding given the way the baggage was stored. 

109.  The defendant put in place a job rotation system.  Members of a team were instructed by the defendant to switch positions in alternate flights or in the same flight if it could be done.  This meant in practice, that the plaintiff would from time to time load and unload flights on the ground and hence not need to knell or squat when loading in the compartment of the plane. This also meant that the physical demands of the plaintiff’s work were not as demanding as he claimed because of the number of flights that he would load and unload and also because of the arrangements that were in place so as to rotate work duties amongst team members. 

110.  The defendant has presented a compelling case against the plaintiff’s claim, although it was to a large extent assisted by the case presented by the plaintiff that was implausible and unconvincing.  The defendant submitted that the plaintiff’s case lacked any evidence that the SLAP lesion and CP were caused by the work duties of the plaintiff.  It is a question, as submitted by the defendant, that the plaintiff’s conditions had been exaggerated by some breach of duty on the part of the defendant.  The defendant argued that as soon as it became apparent that the plaintiff had physical problems he was put on light duty work.  The defendant argued that it cannot be held negligent for something that it did not know about as a result of the plaintiff’s failure to bring his medical condition to its attention.  The defendant also argued that the medical experts agreed that both before and after the plaintiff had the operation on his shoulder, he was fit to work on the light duties that were assigned to him.  In this regard, the defendant submitted that it was implausible that the light duties involving the refueling of vehicles and the delivery of documents would have aggravated the plaintiff’s injuries.  The defendant also pointed out that the arrangement of mixed duty work for the plaintiff was in accordance with the advice of Dr Hariman and there was no suggestion that his advice was negligent or inappropriate.  It is submitted by the defendant that it was a perfectly reasonable decision for it to rely upon properly obtained professional advice and to act on that advice, which in all circumstances, was appropriate and reasonable.  The defendant further argued that both medical experts agreed that the SLAP lesion had no permanent effect on the plaintiff and that the plaintiff’s right shoulder would have been fit for him to perform normal duties by March 2009.  Accordingly, there was simply no damage that the plaintiff could claim as a result of his right should shoulder injury.  The defendant argued that CP is a developmental pre‑existing condition that is degenerative and cannot be reversed or cured.  It was submitted that there was no evidence that during the 33 days of mixed duties, this resulted in additional harm or other permanent damage to the plaintiff.  The defendant submitted that the claim for aggravation was not made out by the plaintiff. 

Findings

111.  I find that the plaintiff exaggerated his claim and that his evidence cannot be relied upon unless it is supported by other independent evidence. I find that the right shoulder injury was probably due to the dislocations of his shoulder which he said occurred on three occasions and which did not occur at his work place or as a result of any incident at work.  I find that the left knee injury was a pre‑existing condition which was not caused as a result of his work.  I find however that his work duties involved short periods of intense physical activity that on occasions required him to bend or squat that put pressure and strain on his knees.  More specifically, I make the following findings:

(1)     In 2007 the plaintiff was suffering with pain to his left knee but he did not inform the defendant of it until August 2007. 

(2)     He had been diagnosed of having a meniscus cyst and cartilage injury to his left knee (CP).  

(3)     The left knee injury was not a result of or caused by any single or specific incident at work. 

(4)     The defendant upon being informed of the plaintiff’s medical conditions put him on light duties when he returned to work on 20 August 2007. 

(5)     In late 2007 the plaintiff was suffering with pain to his right shoulder.  He had been diagnosed as suffering with SLAP lesion.  The right shoulder injury was a result of three previous dislocations of the shoulder which were not work related. 

(6)     In March 2008 the plaintiff had surgery performed on his right shoulder and he made very good recovery after a lengthy period of sick leave.

(7)     The plaintiff received treatment and physiotherapy for his right shoulder and left knee injuries and made very good progress and recovery. 

(8)     The plaintiff from 20 August 2007 to 13 April 2010 when he left the employ of the defendant was either on sick leave or performing light duties at work except between March and May 2009 when he was put on mixed duties for 33 days. 

(9)     The light duties work did not aggravate or exacerbate the plaintiff’s injury to any measurable or significant degree and he would have promptly and complete recovered to his original condition from any such aggravation. 

(10)   The mixed duties work for 33 days aggravated or exacerbated the plaintiff’s injuries to the extent that the recovery back to the plaintiff’s original condition would have been prompt and any aggravation would not be long lasting. 

(11)   The plaintiff exaggerated and falsified the symptoms of his injuries when he attended the joint medical examinations and when giving evidence in court. 

(12)   The plaintiff had normal and unrestricted movement of his knee and upper limbs in 2011.

(13)   The plaintiff has exaggerated his claim.

Quantum

112.  The defendant submitted that it should not be held liable in respect of the plaintiff’s claim.  I agree in relation to the full claim that has been made except for the aggravation I have found.  Even though I agree with the defendant that the plaintiff has exaggerated his claim, I find on the evidence that he had a pre‑existing shoulder and knee injury that was aggravated by the placement on the mixed duties with very minimal residual aggravation when on light duties. 

113.  The plaintiff initially claimed a total sum for damages of $2,642,634, with PSLA in the sum of $540,000 and with pre‑trial and post‑trial earnings in the sum of $524,026 and $1,310,382 respectively.  This was reduced at the conclusion of the trial to $1,226,317, with PSLA in the sum of $175,000 and an overall discount of 50% in light of the evidence at trial.  This was acknowledgement of the exaggerated evidence of the plaintiff. 

Discounted multiplier and the pre-existing condition

114.  The accepted approach to assessing future loss of earnings in cases of pre‑existing conditions is to make a deduction from the multiplier to take into account the risks associated with the plaintiff’s pre‑existing condition.  See Chan Kam Hoi v Dragages et Travaus Publics [1998] 2 HKLRD 958, So Wang Chun v Rainforce Ltd & Ors, HCPI 64/2006, unreported.

115.  It is submitted by the defendant that the plaintiff’s multiplier at 6.70 for a 48 year old for loss of earnings to pension age 55 at a discount rate of 1% (Table 5 of Personal Injuries Tables Hong Kong 2013) should be reduced to 5 on account of the fact that the CP is a developmental pre‑existing condition which would have occurred at any time regardless of the alleged injury. 

116.  The plaintiff should retire sometime between the ages of 55 to 60 in accordance with the retirement age policy of the defendant.  It is likely that the plaintiff would have retired early on account of the conditions of his right shoulder and left knee. 

117.  I agree with the defendant that on a discounted multiplier, the plaintiff’s post‑trial loss of earning is $2,000 x 12 x 5 = $120,000.

118.  I make no allowance for loss of earning capacity.  I allow $5,000 of medical expenses, $1,000 for travelling expenses and $3,000 for tonic food.

119.  I agree with the figures submitted by the defendant except for loss of earning capacity and the appropriate award of damages that I hold the defendant liable to pay the plaintiff are as follows:

Heads of Claim
(a)             PSLA	$100,000
(b)             Pre‑trial loss of earnings	$96,000
(c)             Post‑trial loss of earnings	$120,000
(d)             Loss of earning capacity	Nil
(e)             Medical Expenses	$5,000
(f)              Travelling Expenses	$1,000
(g)             Tonic food	$3,000
TOTAL	$ 325,000

Interest

120.  There will be interest on PSLA at 2% per annum from the date of the writ to the date of judgment together with interest on the award of pre‑trial loss of earnings and special damages at half of the judgment rate from the date of the accident to the date of the judgment. 

Costs

121.  There will be an order nisi that costs of this action are to be the plaintiff, to be taxed if no agreed. 

122.  I did consider not making an order nisi that the defendant pay the plaintiff’s costs given my finding that the plaintiff exaggerated his claim both when attending doctors and testifying in court for the purpose of these proceedings.  Exaggerating a personal injury claim is a serious matter.  It is in public interest that genuine personal injury claimants are given just and reasonable compensation for the injuries suffered as a result of someone else’s negligence.  A fraudulent or an exaggerated personal injury claim will not be tolerated and any attempt to deceive the court by falsely stating or overstating the suffering caused can have serious deleterious consequences to the claim and the claimant.  A claimant is obliged to make a true and honest claim and where someone is found to have acted dishonestly or knowingly made a false statement or claim, the court may not make an award to the plaintiff; or if an award is made, refuse costs and/or reduce interest to the plaintiff; or require the plaintiff to show cause why he or she should not be dealt with for contempt of court.  See Summers v Fairclough Homes Ltd [2012] 1 WLR 2004.

[1] Trial Bundle (TB) at 1193

[2] TB at 159 and 1041.

[3] TB at 197-1 to 35, 907-1 to 26 and 1029-1 to 16.

[4] TB at 276.

[5] TB at 2931.  He said he would perform the duties as depicted in the photograph at TB2945

[6] TB at 2955 and 2958.

[7] TB at 2959.

[8] TB at 271-1 to 33.

[9] TB at 385-1 to 13.

[10] TB at 695-18.

[11] TB at 1128.

[12] TB at 464-491.

[13] TB at 471.

[14] TB at 479.

[15] TB at 1146-1147 and 3438.  In the plaintiff’s witness statement at para 26 (TB at 197-18).

[16] TB at 459 and 2733.  He attended work from 9 pm to 6:30 am the next day.

[17] TB at 3061.

[18] TB at 459 and 2733.

[19] TB at 197-19.

[20] TB at 449-454.

[21] TB at 453.

[22] TB at 460.

[23] TB at 1497.

[24] TB at 290-1 to 18.

[25] TB at 197-21 para 32.

[26] TB at 1143 para 3. Similar report recorded in the Kwong Wah Hospital at 3295.

[27] TB at 1141.

[28] TB at 1134.

[29] TB at 3080.

[30] TB at 3097.

[31] TB at 3293.

[32] TB at 3305.

[33] TB at 1138-1139.

[34] TB at 3298.

[35] TB at 3097.

[36] TB at 197-29 to 30.

[37] TB at 3115.

[38] TB at 197-29 to 30 para 29.

[39] TB at 3117.

[40] TB at 3119, 3120, 3121, 3122.

[41] TB at 197-30 para 50.

[42] TB at 3124 and 3520.

[43] TB at 3125 and 3126.

[44] TB at 3128.

[45] TB at 3137.

[46] TB at 3047-3150.

[47] TB at 3198.

[48] TB at 1193 and 1215-1216.

[49] TB at 3305 and 3304.  See also Should Clinic consultation summary on 31 July 2008 at TB at 3298.

[50] TB at 3307-3308.

[51] TB at 907-10 to 11 at para 6 compared to 197-9 to 10 para 13.

[52] TB at 907-8 para 10 compared to 197-9 to 10 para 13.

[53] TB at 3205-3210.

[54] TB at 3252-3253.

[55] TB at 3265.

[56] Exhibit P1.

[57] TB at 3146,3169 and 3177.

[58] TB at 1090-1.

[59] TB at 207-1 and 095-1.

[60] TB at 282-6 to 7.

[61] TB at 530.

[62] TB at 695-15 paras 42 and 42.

[63] TB at 611 to 638.

[64] TB at 271-27 and 28.

[65] TB at 2945.

[66] TB at 1013-1 and 1103-1.

[67] TB at 1125-1.

[68] F/3521‑3522