GURUNG DURGA BAHADUR v. KAM TAI CONSTRUCTION CO LTD AND ANOTHER

HCPI 304/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 304 OF 2004

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J U D G M E N T

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A. INTRODUCTION

1.  On 17 April 2001, Mr. Gurung, the 43 year-old causal labourer, was hit by a crane and fell whilst attempting to anchor some wooden boards onto a crane in a construction site.  He sustained injuries, and was sent to Tuen Mun Hospital (“TMH”).

2.  As a result of the said accident, Mr. Gurung, sustained injuries.

3.  He was granted legal aid in February 2002 to claim damages against his employer and principal contractor (the 1^st and 2^nd Defendants respectively).  However, it was not until the end of the three-year limitation period that Mr. Gurung issued the writ on 6 April 2004.

4.  Judgment on liability was entered on 27 August 2005 by consent.

5.  Before the case was set down for assessment of damages, the Director of Legal Aid discharged the Legal Aid Certificate on 4 October 2007.

6.  Mr. Gurung has since that date been acting in person.  At the date of hearing for assessment of damages, he still acted in person.

B. ISSUES

7.  Apart from agreeing to a total sum of $8,200 for medical and traveling expenses, the Defendants dispute all the other heads of damages Mr. Gurung claims.

C. EVIDENCE

8.  Mr. Gurung was the only witness.  Master Kwan ordered that the reports of the Government hospitals as agreed evidence, and the expert reports, prepared for the purpose of litigation, be adduced without oral evidence.

C.1 Medical evidence

C.1.1 Injuries and treatments

9.  According to the reports of the Government hospitals, Mr. Gurung suffered multiple fractures of the right transverse processes of the first to fourth lumbar vertebrae.  There was a haematoma of about 2.5 cm in diameter over the right side of the occiput.  There was also tenderness on the right side of the chest wall at the back infero-lateral to the right scapula, and the right side of the lumbar paraspinal area.  X-ray results of the chest, skull, his right lower ribs and pelvis did not reveal any abnormality.  The ultrasound of the kidney also did not reveal any abnormality.

10.  He was hospitalized for 3 days in TMH before transferred to Pok Oi Hospital for convalescence until 21 May 2001.  Thereafter, he was treated conservatively by physiotherapy and walking exercises.

11.  He received altogether 20 sessions of physiotherapy consisting of ice therapy, electrotherapy, thermal therapy and exercise therapy for the period between July and December 2001.

12.  Mr. Gurung was later referred to see a government ENT specialist in March 2002 as a result of his complaint of decreased right ear hearing, and was seen many times between March and November 2002.  According to the report of the ENT Department from TMH dated 19 April 2004, Mr. Gurung was found to be suffering from mild to moderate hearing loss at his right ear.  He was prescribed with a hearing aid.

13.  In a follow-up treatment in October 2002 by a government orthopaedic, Mr. Gurung also complained of neck pain radiating to the right temporal region and decreased right ear hearing.  He was therefore referred to a see a government neurosurgeon for suspected post-concussion syndrome

14.  Mr. Gurung attended a government neurologist for about one year from December 2002.  A CT scan in December 2002 did not reveal any abnormality.  The government neurologist diagnosed post-concussion syndrome, but found him otherwise neurologically stable.

C.1.2 Expert Reports

15.  Mr. Gurung’s experts are Dr. Danny Tsoi (orthopaedic) and Dr. Lo Siu Sing (ENT). Dr. Edmund Woo, the neurologist, is the joint expert.  Dr. Lam Yan Kit (orthopaedic) and Dr. John Kong Sang Woo (ENT) are the Defendants’ experts.

(A) Orthopaedic

16.  Dr. Tsoi and Dr. Lam jointly examined Mr. Gurung on 14 January 2003.  At the interview, he still needed to walk with a stick.  He still complained of pain at right upper back, shoulder and neck, of disturbed sleep, inability to sit, stand or walk for more than 5 minutes, and of difficulty in climbing stairs.

17.  The x-rays results showed that there was non-union of fracture transverse processes of L2 to L4 but satisfactory healing at L1.  There were also mild degenerative changes at L3-4 levels.

18.  In his report dated 16 January 2003, Dr. Tsoi explained that traverse process was a piece of bony prominence that projects out of each side of a vertebra.  Fractured transverse process usually signifies a very severe form of soft tissue injury of the back, especially the paraspinal muscle.  In Mr. Gurung’s case, Dr. Tsoi was of the view that the fracture of the transverse processes would suggest severe soft issue trauma.  Common complications were scarring, fibrosis and residual inflammation, which could give rise to symptoms of pain, weakness and stiffness.

19.  Dr. Tsoi was of the view that Mr. Gurung’s complaints of reduced back motion and weakness and stiffness were compatible with the said soft-tissue injury. 

20.  Dr. Tsoi however opined that Mr. Gurung’s complaints of weakness of the lower limbs and the clumsiness he had displayed when changing posture could not be explained by orthopaedic means.  Further, the discrepancy in straight leg raising angle measured in different postures suggested signs of exaggeration.  Hence, he opined that Mr. Gurung’s back pain might not be as severe as he had described.  Mr. Gurung was also found to have reached maximal medical improvement.  Apart from stretching exercises, Dr. Tsoi did not think that Mr. Gurung would need any more physiotherapy treatment.

21.  Dr. Tsoi took the view that Mr. Gurung was not fit to return to his pre-accident job, which involved frequent back bending and scaffold climbing.  He recommended light duties such as cleaning work, security guard, office assistant, carpark attendant and messenger.

22.  He opined that a sick leave period of 15 months was reasonable.

23.  Dr. Lam opined that the pain over the upper chest, scapula and neck was not consistent with the pathology of fractures of transverse process.  Further, he found that Mr. Gurung’s lower back pain was far more severe than it could have been.  He was also of the opinion that Mr. Gurung had likely magnified his pain.

24.  He was also of the opinion that Mr. Gurung did not require further treatment for his residual pain and stiffness in his low back, which pain would have persisted indefinitely.

25.  As for his future employment, Dr. Lam opined that the residual pain would make it really difficult for Mr. Gurung to do work that requires the climbing of scaffolds or doing heavy manual duties.  However, he should be able to work on a level ground such as working as a general workman, cleaner, guard and messenger.

26.  He commented that fracture transverse process generally require 3 to 6 months to heal.  With multiple levels of fracture associating with significant soft tissue injury as in Mr. Gurung’s case, he agreed that a longer convalescent period was required.  He opined that a period of 7 months should be sufficient; hence the appropriate period of sick leave should be 7 months.

(B) Neurologist

27.  Dr. Woo, the neurologist examined Mr. Gurung on 21 November 2005, and wrote a report on 24 November 2005.

28.  At the interview, Mr. Gurung complained to Dr. Woo that after the accident, he had headache near the occiput daily, which lasted for 1 to 2 hours each time.  He also felt giddy and nausea when the pain was severe.  He had also become absent-minded and short-tempered.  He had pain in the right side of his body.  His right hand was weak and could not lift heavy weights.  He also had severe pain in the right low back. 

29.  Dr. Woo took the view that Mr. Gurung’s complaints were not supported by non-organic signs, and defied neurophysiological principles.  He suspected that Mr. Gurung had either feigned or grossly exaggerated all his symptoms and complaints.

30.  He opined that Mr. Gurung had only suffered a mild head injury with mild residual headache and absent-mindedness.  He opined that Mr. Gurung should have recovered 3 months after the accident, that is, by July 2001.

(C) ENT

31.  Dr. Lo, the ENT expert for Mr. Gurung examined him on 17 January 2007.  Mr. Gurung complained to him that he suffered right hearing loss after the accident.  His right ear was occasionally itchy or painful.

32.  Dr. Lo did not find any abnormality in Mr. Gurung’s right ear canal and eardrum.  The subjective test of pure tone audiogram showed slight right hearing loss.  However, Dr. Lo opined that any slight right hearing loss did not cause any permanent disability or loss of earning capacity.  No treatment was recommend.  He was also found to be fit to return to his pre-accident job as a construction worker.

33.  Dr. John Woo, the ENT expert for the Defendants, was asked to review the hearing status.  He first saw Mr. Gurung on 11 December 2006.  Hearing tests performed on his ears were found to be normal.  The clinical examination Dr. Woo performed did not show any hearing problem.

34.  On 22 January 2007, a pure tone audiometry and tympanometry tests were performed.  The tests showed that Mr. Gurung’s hearing was normal on both ears.

35.  After he had reviewed the test results and the available information, Dr. Woo opined that Mr. Gurung had probably suffered a mild degree of hearing loss in his right ear caused by the accident and had recovered over time.  He opined that Mr. Gurung could return to his pre-accident employment.

C.2 The Plaintiff’s evidence

36.  An otherwise a very straightforward hearing for assessment of damages was made many times more complicated and prolonged because of Mr. Gurung’s persistent refusal to observe the court proceedings, and his contempt against the Defendants’ counsel.

37.  In the first day of the hearing, he refused to sit on the witness chair as he was giving evidence.  Instead, he chose to sit on the floor most of the times for an alleged severe pain at his back, which had allegedly prevented him from sitting down.  In order to enable his evidence to be recorded, I had arranged a chair to be placed in front of him to enable Mr. Gurung to rest his feet.  However, after a brief attempt to sit down, Mr. Gurung again ended up sitting on the floor, with his back leaning against the wall, and legs stretched out wide.

38.  Whenever counsel spoke, Mr. Gurung shouted abuse and at one stage, threw papers at him, and kept demanding for payment of compensation.

39.  As Mr. Gurung has been acting in person, he has, apart from filing a Statement of Damages on 23 September 2005 by his former solicitors, not served a proper witness statement.  Mr. Gurung’s handwritten 2-page letter to the Hong Kong Bar Association dated 1 February 2008 asking for its assistance was included in the approved hearing bundle, and was treated as his witness statement.

40.  It is therefore, not surprising that when I guided Mr. Gurung through his evidence in chief, he gave evidence that had not been previously disclosed such as his alleged deteriorating condition and mental problem.

41.  This prompted counsel to make an application to adjourn the hearing, and for an order to submit Mr. Gurung to an up-dated medical examination, and that should he fail to submit, for an order to strike out the assessment of damages.

42.  I had declined to adjourn the hearing.

43.  During the cross-examination, Mr. Gurung continued to display the same measure of contempt towards the counsel, by arguing with him and refusing to answer questions.  A lot of time was therefore spent in keeping the order of the court proceedings.  Hence, a hearing that could have only required one day had to be adjourned.

44.  During the adjournment, the Defendants’ solicitors engaged the Intellect Consultancy Limited to conduct surveillance on Mr. Gurung.

45.  Consequently, an investigation report together with a video recording of Mr. Gurung’s activities near his home vicinity at Yuen Long on 16 July 2008 were prepared.  At a separate hearing before the adjourned hearing, I granted leave to the Defendants to adduce evidence comprising an Investigation report, a video recording and the surveillance notes.

46.  Probably owing to the surveillance tape showing Mr. Gurung was able to walk around (though with a noticeable limp) for quite sometime on the morning when he was put under observation, Mr. Gurung at the adjourned hearing no longer sat on the floor, but had instead constantly stood up most of the times especially when he became emotional.  He also squatted sometimes, and only occasionally sat on the chair.

47.  There was no improvement in his attitude though.  He was very angry with the Defendants’ lawyers for conducting surveillance on him.  He again threw a bundle of papers at counsel.  As Mr. Gurung had become totally out of control, court bailiff was requested to be present at court for the remainder of the hearing.

48.  Amid his constant outbursts of temper, Mr. Gurung testified that when his back was hit by the crank at about 11 a.m. on the day of the accident, he became unconscious, and only came around at about 5 p.m.  Apart from the government medical reports of TMH, Mr. Gurung did not accept the findings and opinions of all the experts in this case, including his own experts (although he had in the first day of the hearing stated that Dr. Tsoi’s report was half correct and half wrong).

49.  He described his residual pain as being severe, with burning sensation in both his arms and legs.  He further said that as from 2004, his condition had deteriorated to the point that his body now ached the whole day.  Further, he had also been attending a specialist for his mental disease as a result of his problem with sleeping.  He now takes painkillers prescribed by Pok Oi Hospital, and attends follow- up at the orthopaedic section at TMH.

50.  He now walks with a walking stick, which he carries with his right hand.  He said his right side used to be weaker.  However, several months ago, his left leg became weaker than the right.

51.  Mr. Gurung is still not working.  He has no special skills. His education was only about Primary 3 or 4 at his native country at Nepal.  His jobs had always been general labour both before and after he came to Hong Kong in 1997.

C.3 The Defendants’ Evidence

52.  Apart from the medical experts referred to the above, the Defendants’ evidence was the surveillance of Mr. Gurung on 16 July 2008.  The evidence was from the witness who conducted, and recorded the surveillance, and transferred the video recording onto a computer disc.

53.  According to the witness’ evidence, Mr. Gurung was observed for about 3 hours in the morning of 16 July 2008.  However, the witness did not make a continuous video recording of Mr. Gurung in order to avoid being discovered.  At the end, the total recording time was only 26 minutes.  The witness said that the recording was representative of Mr. Gurung’s activities during the period of surveillance.

54.  The surveillance recording was played in court.  The video shows that Mr. Gurung walk with a limp, and was supported by a walking stick carried by his right hand.

55.  Mr. Gurung spent about 45 minutes inside a McDonald café near his residence.  Afterwards, he walked to the general outpatient clinic of Yuen Long Jockey Club clinic, and spent another 45 minutes there.

56.  The last part of the surveillance shows that Mr. Gurung sit between two men on a park bench for about one and half hours.  He was seen chatting on the mobile phone, and occasionally with these two men.  When he was sitting on the bench, he was seen crossing his left leg over his right, and occasionally putting both legs on the metal bars in front of the bench.  He was also seen bending his right leg while stretching out his other leg, and rested it against the metal bar of the railing in front of him.

D. Discussion

D.1 Injuries and Disabilities

57.  The surveillance evidence clearly shows that Mr. Gurung has grossly exaggerated his disabilities during the court hearing.  I accept that Mr. Gurung still requires a walking stick, and walks with a very noticeable limp (as shown from the video recording).  However, the alleged inability of sitting down on the witness chair, in my finding, is clearly a charade, and cannot be believed.

58.  I do not have a favourable impression of Mr. Gurung, and I do not find his testimony at all credible.  Thus, in order to determine the extent of his disabilities, I can only rely on other objective evidence in this case.

59.  In spite of Mr. Gurung’s exaggeration, the government medical reports and the expert reports, as well as the surveillance evidence do show that he has suffered very serious injuries.

60.  I find that Mr. Gurung had fallen from a height of about 10 to 15 feet after he was hit by a crane from behind.  The Defendants did not accept that Mr. Gurung had lost conscious, and alternatively contended that he had lost conscious for only a brief moment.  In my view, the impact of the fall must have been rather severe because it was a fall from a height of more than 10 feet, and Mr. Gurung suffered multiple fractures over the transverse processes of the lumbar spine. In those circumstances, I am more inclined to find he was unconscious immediately after the fall.

61.  Mr. Gurung said that after the accident, he only regained consciousness at about 5 p.m. that day.  According to a report from TMH dated 2 April 2004, Mr. Gurung was brought to the Accident & Emergency Department of the TMH at 11:39 a.m. that day, and the accident occurred at about 11 a.m.  Therefore, if Mr. Gurung’s account were accepted, it means that he had lost consciousness for about 6 hours. 

62.  However, all the reports from the TMH did not allude to a loss of consciousness.  When Mr. Gurung was brought to the A & E Department, he would have been attended to by doctor very soon after his arrival.  Had he been unconscious when he was at TMH, a report would have recorded this fact.  Hence, a total lack of corroborative evidence leads me to accept counsel’s alternative submission that Mr. Gurung’s loss of consciousness was only brief, and he had regained consciousness upon or shortly after arriving at the hospital.

63.  Based on the reports from TMH, I find Mr. Gurung had suffered fracture right transverse processes of L1 to L4 lumbar vertebra.  He was treated conservatively with  physiotherapy.  After staying at TMH for 3 days, he was transferred to Pok Oi Hospital for convalescent for 35 days, and was discharged on 21 May 2001. He was further granted sick leave until 20 June 2002.

64.  According to the two reports from the Occupational Therapy Department of the TMH, Mr. Gurung, upon his discharge, started occupational therapy at the end of June 2001.  At that time, his condition was still not satisfactory, and he was regarded as not fit for attending the formal work simulated assessment and training, but was advised to continue the home exercise programme.

65.  In March 2002, he started the second course of work assessment and work hardeningprogramme.  For this course, he had only 3 attendances.  He was assigned to do light reconditioning treatment activities. However it was reported that he could only tolerate about 5 minutes of walking without a walking stick.  It was reported that he refused to try other training activities after the assessment.

66.  I regard this refusal as an indication of his failure to make any effort to return to the labour market, which I would further consider below.

67.  I also accept that Mr. Gurung received physiotherapy treatments after his discharge from Pok Oi Hospital for about 5 months from July to December 2001 with 20 attendances in total.

68.  From the reports of the TMH, I find that Mr. Gurung’s injury is mainly fractured transverse processes of the lumbar vertebra.

D.1.1 Extent of the orthopedic injuries

69.  According to the expert reports of Drs. Tsoi and Lam, I find that by January 2003 when he was examined by the experts, Mr. Gurung’s fractures were already healed (as shown by the x-ray of the lumbar spine taken on 14 January 2003 during the joint examination), leaving him with a limping disability.  The injury to his lumbar spine reached the state of maximal medical improvement.

70.  I accept both experts’ views (which are reinforced by my impression of Mr. Gurung’s exaggerated performance at court) that his complaints of pain were largely exaggerated, and that the residual pain and stiffness were only localized, around the right lower back. I also find that the residual symptoms are permanent (see Dr. Lam’s report, p.6 para.4).

71.  I further accept the experts’ view that Mr. Gurung would not be fit to return to his pre-accident employment as a labourer, and is likely to be suitable only to perform light duty work such as a general watchman, messenger and cleaner.

72.  I further accept Dr. Tsoi’s  view that the injury had caused severe soft tissue injury (as discussed in paragraphs 18 and 19 above), which gave rise to the permanent symptoms of pain, weakness and stiffness.

D.1.2 Neurological Injuries

73.  As for his complaint of headache, Mr. Gurung was also seen by the neurologist in the Neurosurgical Department.  The CT scan of the brain did not reveal any abnormality.  Mr. Gurung was last seen by the doctor in respect of his complaint of headache in December 2003 (according to the report from TMH dated 28 April 2004), and the doctor in the Department of Neurosurgery diagnosed of a post-concussion syndrome. 

74.  To determine the full extent of his neurological complaint, he was examined by Dr. Edmund Woo in November 2005.  Dr. Woo (who was Mr. Gurung’s own expert) however was skeptical of the various complaints and residual symptoms Mr. Gurung alleged.  He suspected that Mr. Gurung had “either feigned or grossly exaggerated” the symptoms at the examination.  He further remarked that Mr. Gurung’s mild head injury should have recovered in about 3 to 6 months, although a mild residual headache and absent-mindedness consistent with the diagnosis of a very mild post-concuss ional syndrome may remain.

75.  When the report from the Neurosurgical department of TMH and Dr. Woo’s reports are considered together, and having had the benefit of observing Mr. Gurung’s great tendency to exaggerate his symptoms, I find that the fall had likely caused some mild post-concuss ionalsyndrome to Mr. Gurung.  However, the mild injury would have likely been healed by the end of December 2003, which explains why he was no longer followed up in the Neurological department.

76.  Thus, when Dr. Woo examined him in 2005, Dr. Gurung’s mild post-concussional syndrome would have been healed.  The skepticism of Mr. Gurung’s symptoms expressed by Dr. Woo, in my view, is not without any basis. I find that it is highly likely that Mr. Gurung had indeed feigned the symptoms during the examination in November 2005 by Dr. Woo.

D.1.3 ENT Injuries

77.  Mr. Gurung had also complained of hearing loss and headache.  His complaint of hearing loss is clearly not borne out by the government reports from the ENT department of the TMH.  Although the hearing test conducted on him showed a mild hearing loss on his right side, there is no evidence that the said hearing loss was related to the accident.

78.  Mr. Gurung was seen by the ENT expert, Dr. John Woo, in December 2006.  In my view, this assessment would not assist me in determining Mr. Gurung’s complaint of hearing loss as it was conducted more than 5 years after the accident.  Hence, Dr. John Woo’s detection of a mild drop of hearing, which led to his conclusion that Mr. Gurung might have some degree of hearing in his right ear after the accident, in my view, is only a conjecture.  In the circumstances, I do not consider this report is relevant, and will place no weight in this report.

79.  The best evidence is from the reports of TMH, based on which, I find Mr. Gurung’s mild hearing loss is not caused by the injury.

D.1.4 Conclusion on disabilities

80.  Thus, Mr. Gurung’s disabilities are mainly his residual lower back pain and stiffness.  Although there is no updated orthopedic report, I do not think it really matters as the experts had already confirmed (and I accept) that Mr. Gurung had reached maximal recovery by the end of 2002, though Mr. Gurung’s residual pain was opined to be permanent.

81.  Having observed Mr. Gurung in court, and seen the surveillance tape, I find that his present disability is best evident by the recording.  His inability to sit down on a chair for more than 5 minutes is not true.  I find that he has now recovered, and only needs to go to the outpatient at TMH for follow up, and obtains analgesic to ease his residual pain.  He is able to walk, but with a severe limp.  I have also noticed from the surveillance video that Mr. Gurung would look for external support to rest his legs.  For example, when he was waiting for the traffic light to change at a road junction, I observed that he had used the roadside railing to support his body.  His constant placing of both of his feet on the metal railings when he was sitting down on the bench is another manifestation of a need to rest his legs, which have been undoubtedly weakened by the injuries.

82.  Mr. Gurung’s said condition as shown in the surveillance is likely to be permanent.  So would be his residual pain and stiffness at his lower back.

83.  In view of the severity of the soft tissue injury resulting from the fracture transverse processes, I find that the sick leave of about 14 months the doctor has given to Mr. Gurung is reasonable.

D.2 The Pre-accident earnings

84.  Mr. Gurung claimed that his pre-accident earning was $14,400 per month.  I believe this was based on the information stated in the statutory Form 2 Notice which Mr. Gurung’s employer (the 2^nd Defendant) was required to give to the Labour Department.  In the Notice, it was stated that Mr. Gurung had no fixed working days, and worked in the average of about 24 days in a month.

85.  Mr. Gurung however said that in the month before the accident, which was March, he had worked for 31days, and was paid $630 a day. He further said that he used to earn about $18,000 to $20,000 per month.

86.  According to a Certificate of Salary written by Mr. Gurung’s direct employer, it is stated that Mr. Gurung was paid in cash with a daily wage of $600.  The month prior to the accident, he had worked for 24 days, and worked on average 21 days a month.

87.  In spite of the Defendant’s pleaded case of $12,600 per month, counsel had agreed to use $615 per day (which is the median of $630, as Mr. Gurung alleged, and $600 as stated in the said Certificate of Salary) to calculate Mr. Gurung’s pre-trial loss.  However, counsel does not agree that Mr. Gurung would have worked more than 22 days a month.  Hence, it is contended that the pre-accident earning should be $13,530.

88.  I do not find Mr. Gurung a credible witness, and am unable to accept his evidence regarding his pre-accident income.  Neither am I able to accept the Defendants’ basis of calculating Mr. Gurung’s pre-accident wages. In my view, the best objective evidence is from the statutory Form 2.  Hence, in assessing Mr. Gurung’s pre-trial loss of earnings, I find that his pre-trial earnings should be at $14,400 per month, which is calculated on the basis that he worked 24 days a month and was paid $600 a day.

D.3 Working Ability

89.  Mr. Gurung was still unemployed on the date of the hearing, and did not appear that he had been looking for any jobs.

90.  In the Statement of Damages, Mr. Gurung claims for a total loss of earnings, both pre-and-post trials.

91.  Counsel contended that Mr. Gurung should have taken a new lighter duties’ job such as a security guard or a similar job earning about $7,500 per month after 7 months of the accident.

92.  I have found in the above that the reasonable period of sick leave is 14 months.  I think Mr. Gurung should be entitled for the full loss for that period.  Mr. Gurung however did not appear to have made any attempt to look for a suitable employment– which is reflected in the Occupational Therapy report dated 23 December 2002 referred to in paragraphs 65 and 66 above - after he had sufficiently recovered by December 2003

93.  Hence, although his sick leave had expired in around June 2002, I find that it is reasonable for Mr. Gurung to be given several more months to be re-trained and to look for a suitable alternative employment, which reasonable period should be about 6 months.

94.  After December 2002, I find that it is not reasonable for Mr. Gurung to remain unemployed, and that had he not malingered, he would have likely found an alternative employment as from January 2003.

95.  In view of his limp, I think that it would be more suitable for him to find a sedentary type of job.  In view of his very limited education, and his ethnic background as a minority living in Hong Kong where Chinese and English are the official languages, I think his job options are indeed very limited.  I do not consider therefore that there is much realistic prospect for Mr. Gurung to find work as a watchman, which kind of job involves language skills in either Chinese or English, both of which language skills Mr. Gurung seem to lack.  Thus, I do not find Mr. Gurung would likely find a job as a watchman, and earned $7,500 as counsel has said.

96.  The only jobs that would be most suited to him, in my view, would be some completely unskilled light duties job such as a light duty cleaning worker or a petrol station attendant.

97.  There is no evidence as to the level of wages for this kind of jobs. I should think such type of work is likely to be at the lowest paying bracket.  Doing the best I can, I would say that the likely wage would be around $5,000 to $6,000 per month.  The median is $5,500, which is the figure I would apply when assessing the quantum for the loss of earnings below.

E. QUANTUM OF DAMAGESE

E.1 Pain, Suffering and Loss of Amenities of Life (“PSLA”)

98.  Mr. Gurung claims $450,000 under this head in the Statement of Damages.  Counsel contends that the award should not be more than $250,000, citing two authorities for fractured transverse processes – Lam Fuk Pau v Canton Curtain Wall Engineering Ltd & Anor. (unrep.), HCPI 488 of 2004, and Tang Wing Pui v Ho Pui Ling t/a Wing Hing Meat Co. (unrep.) HCPI 364 of 2001.

99.  I am unable to derive much guidance from Lam Fuk Pau as in that case the PSLA award of $330,000 was agreed.  However, it is noted that the plaintiff in that case fell through a height of 2.4 m (which height is a little less than the present case) and had suffered a fracture of the transverse processes at the L2, L3 and L4.  It would have appeared that both the accident and the injuries Mr. Gurung had met were similar if not more serious than the plaintiff in Lam Fuk Pau.

100.  The injury and the accident in Tang Wing Pui are also far less severe than Mr. Gurung’s. 

101.  Counsel further relied on an additional authority of Limbu Netra Kumar v Yau Lee Construction Co. Ltd. Anor. (unrep.), HCPI 234 of 2002, and submitted that the award should be discounted by a suitable percentage if pre-existing degenerative condition was found to be present.

102.  I do not think it is at all appropriate in this case to consider the issue of pre-existing condition as this issue was never raised, and especially when the experts were never asked to address this matter.  Thus, I am not inclined to consider the issue of pre-existing condition in this claim when I assess the amount under this head.

103.  Having considered the cases counsel cited, I am unable to agree with him that the award should not be more than $250,000.  The undisputed medical evidence shows that Mr. Gurung’s injuries were more extensive than both of the plaintiffs in the authorities counsel had cited.

104.  I think the award should be around $330,000 to $350,000.  I grant the award at the median of $340,000.

E.2 Pre-Trial Loss of Earnings

105.  Based on my findings in paragraph 92 above, for the period from the date of accident until December 2002, Mr. Gurung suffered a full loss of earnings at $14,400 per month for 20 months.

106.  Hence, the full loss would be $14,400 x 20 = $288,000.

107.  As from January 2003, Mr. Gurung should have only suffered partial loss of $8,900($14,400 – $ 5,500).  Hence, for the period between January 2003 and October 2008, it is a total of 70 months (5 years and 10 months).

108.  Thus, the total amount of partial loss would be $8,900 x 70 = $623,000.

109.  The total amount of loss of pre-assessment earnings would be $288,000 + $623,000 = $911,000.

110.  Mr. Gurung’s loss of MPF contributions is $45,550 ($911,000 x 5%).

E.3 Pre-assessment special damages

111.  In the Statement of Damages, a sum of $23,593.40 is claimed for actual expenses incurred.  There is no breakdown.

112.  Apart from a total sum of $1,452, which I am able to calculate from the two physiotherapy reports from TMH, I am unable to find any other documents in support of the medical expenses.

113.  As for traveling expenses, the bundle of taxi receipts Mr. Gurung produced during the hearing is far from clear.  He testified that some of the expenses were for taking taxi to see his former lawyer, and some of them were for traveling to court.  If this is indeed the nature of the expenses, they should be his costs, and should not have been claimed as damages.

114.  In light of the unsatisfactory evidence, I am unable to make an award he has claimed in the Statement of Damages, but only to make an award based on the amount the Defendants agree. I therefore award a sum of $8,200 under this head of claim.

E.4 Future Loss of Earnings

115.  The multiplicand in respect of the pre-assessment loss of earning for assessing future loss of earning is $8,900.

116.  In the Statement of Damages, a multiplier of 11 - which is based on the assumption that Mr. Gurung would be 48 on the date of the assessment - is claimed.

117.  Mr. Gurung is now 50.  Counsel contends that  – given the nature of the pre-accident work – the appropriate multiplier should be 5.

118.  Mr. Gurung was (as expected) totally unhelpful as to what age people in his industry would work till.  I think it would not be overstretched to say that a construction work should realistically be expected to work until 60.  Despite the unstable nature of this kind of work, I tend to think that a multiplier of 5 would be unreasonably low, and that a more appropriate  multiplier should be 7. 

119.  Thus, his future loss of earnings is $747,600 ($8,900 x 12 x 7).

120.  The loss of the MPF would be $37,380 ($747,600 x 5%).

E.5 Loss of Earning Capacity

121.  This award should only be made if I am satisfied that there is a “substantial” or “real” risk of Mr. Gurung losing his present job.  I am simply not satisfied that there is evidence of such a nature to enable me to make such an award.

122.  I therefore decline to make any award under this head.

F. INTEREST

123.  Interest would usually be awarded for both general damages at 2% from the date of writ and special damages at half judgment rate from the date of accident.  The court shall not deprive a plaintiff’s interest unless it is satisfied that there are special reasons not to make an award of interest (see section 48 (2) of the High Court Ordinance, Cap.4).

124.  Counsel asks me to reduce interests awarded by 2 years on the ground of delay brought by Mr. Gurung in bringing the assessment to trial.

125.  In this case, the writ was issued in April 2004.  Interlocutory judgment was entered in August 2005, and the Statement of Damages was filed in September 2005.  By the end of November 2005, the reports of Drs. Tsoi, Lam and John Woo were already obtained.  Mr. Gurung should have by the end of 2005 obtained a Check List Review appointment, and have the assessment set down for hearing, which would have likely been around mid-2006.

126.  Instead, Mr. Gurung did nothing.  The Defendants, as a result of Mr. Gurung’s inaction, had to get the ball rolling by issuing the Notice of Check List Review in December 2007.

127.  Owing to the matters foregoing, I accept counsel’s submission that there is a delay of about two years.  This delay, in my view, is serious enough as constituting special reasons for me to deprive Mr. Gurung’s entitlement to interest for two years.

128.  Hence, the interest (based on the period counsel has used when doing the calculations in his closing submissions) for the PSLA award of $340,000 is $17,000 ($340,000 x 30/12 x 2 %).

129.  The interest on pre-assessment damages would be $218,877.65(($911,000 + $45,550 + $8,200) x 66/12 years x (8.25/2)%).

G. SUMMARY OF AWARDS ASSESSED

(1)	PSLA	$340,000.00
(2)	Pre-trial loss of earnings	$911,000.00
(3)	Pre- trial loss of MPF	$45,550.00
(4)	Pre-trial special damages	$8,200.00
(5)	Future loss of earnings	$747,600.00
(6)	Future loss of MPF	$37,380.00
(7)	Loss of earning capacity	Nil
(8)	Interest on PSLA	$17,000.00
(9)	Interest on pre-trial loss	$218,877.65
	Sub-total	$2,325,607.65

H. CONCLUSION

130.  It is not in dispute that Mr. Gurung has received a total sum of $268,180 by way of interim payments from his employer.  This sum should be deducted from the award.

131.  I am not inclined to accept counsel’s submission of allowing the Defendants to deduct any interest on the said sum of interim payment.  There is no valid justification to add interest to the interim payments Mr. Gurung had received, and to be deducted from the award. I therefore direct that only the net sum of $268,180 be deducted from the total award.

132.  I therefore enter judgment for the sum of $2,057,427.76 ($2, 325,607.65 - $268,180).  I also grant a nisi order of costs in favour of Mr. Gurung.  As I note that Mr. Gurung was legally aided in the beginning of the action, I will further order that Mr. Gurung’s own legal aid costs be taxed in accordance with the Legal Aid Regulations.

133.  The said nisi costs order shall become absolute unless an application to vary the said order is made within 21 days (which has taken into account the time required for posting the judgment to Mr. Gurung as per his request) from the date of the handing down of the judgment.