LAW TAI WAI v. CHONG CHI FAI t/a UNIQUE DECORATION & CONSTRUCTION CO

HCPI 1034/2016

[2019] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1034 OF 2016

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J U D G M E N T

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Introduction

1.  The plaintiff’s claim is for damages for personal injuries suffered by him in an accident which happened on 17 September 2013 in the course of his employment with the defendant as an electrician assistant.  At the time the plaintiff was working at the Hong Kong Convention and Exhibition Centre (“HKCEC”).  Whilst he was standing on top of a 2.5 high stand, his left foot stepped on a wooden plank supported by a bar.  The plank fell and he fell backwards landing on his back and limbs. 

2.  Interlocutory Judgment on liability was entered on 31 May 2017 against the Defendant with damages to be assessed. 

3.  This is the assessment of damages.

4.  The plaintiff had asked for leave to file a 2^nd supplemental witness statement and to re-re revise the statement of damages on the first day of the trial.  This was for the purpose of updating the figure of the monthly wages.  I granted leave to the plaintiff as it was agreed that there was no prejudice caused to the defendant despite such late filing. 

The plaintiff’s working background

5.  The plaintiff was born on 9 September 1969 and was aged 44 at the time of the accident.  He is currently 49 years old.  He was educated in Hong Kong up to secondary school F.3 level and can read and write in Chinese. 

6.  The plaintiff had been under the employ of the defendant since May 2011 as an electrician, responsible for installing and dismantling lights and cabinets in residences and exhibition halls. 

Injuries and Treatment

7.  The reports of the public sector hospitals as to diagnosis, treatment and care of the plaintiff are non-controversial and are thus treated as agreed evidence.  They disclosed the following. 

8.  After the accident, an ambulance was called and the defendant took the plaintiff to the Accident & Emergency Department of the Ruttonjee Hospital where he was transferred to the Accident & Emergency Department of the Pamela Youde Nethersole Eastern Hospital (“PYNEH”).  He was then transferred to the Orthopaedics & Traumatology Department where he received procedure of suturing of the wound.  The plaintiff was then discharged on 19 September 2013.  The plaintiff was then referred to the Ruttonjee & Tang Shiu Kin Hospital for Physiotherapy for his back contusion and back pain, where he underwent 8 sessions of physiotherapy between 1 November 2013 to 21 January 2014. The plaintiff then underwent occupational therapy from 29 January 2014 to 7 November 2014.  The plaintiff also underwent work hardening programme from 8 April 2015 to 12 August 2015.  The plaintiff attended Sok Kwu Wan General Out Patient Clinic on 26 June 2015 until 17 August 2015. 

9.  Due to persistent chest pain, the plaintiff received treatments from the pain clinic of PYNEH.  Physical examination on 24 June 2016 on the plaintiff’s chest was unremarkable, and the CT scan and X-rays were negative.  It was noted that the plaintiff was able to care for himself, help out in the household but was unable to return to work.  The pain was a benign neurological state rather than a sign of any sinister pathology.  The plaintiff was prescribed neuropathic medication which did not help with the pain. 

10.  The plaintiff was given sick leave from 17 September 2013 to 10 December 2014, 15 January 2015 to 30 January 2015, 4 February 2015 to 24 February 2016 and 19 September 2016 to 22 September 2016. 

11.  The plaintiff still complains of frontal chest pain, a need to take analgesics and insomnia. 

Joint Orthopaedic Expert Report dated 14 September 2017

12.  The plaintiff was jointly examined by the plaintiff’s expert, Dr Johnson C K Lam (“Dr Lam”) and the defendant’s expert, Dr Yeung Sze Tsun Eric (“Dr Yeung”) on 28 July 2017.  Both experts agreed that: 

i)   After the accident, the plaintiff felt pain over the whole back, left leg, both elbows and anterior chest.  The laceration wound over the leg was sutured.  After discharge, the plaintiff received physiotherapy and occupational therapy.  The pain over the back, left leg and elbows had recovered.  However, the plaintiff maintained that he still experienced pain over the front (anterior) of the chest, and felt pain coming from within the chest. 

ii)   The diagnosis are: a) laceration of left leg, 2) back injury, 3) chest injury, 4) right elbow abrasion.  These are consistent with the mechanism of injury described (falling from over 2 m). 

iii)   There was no pre-existing condition in injured regions. 

iv)   Before the accident, the plaintiff could work as an electrician assistant, a job requiring heavy manual labour. 

v)   Before the accident, the plaintiff enjoyed painless and satisfactory function in the injured areas.

vi)   Treatment received by the plaintiff was appropriate, and surgery is not required for the plaintiff’s injuries. 

vii)   On examination, the findings were unremarkable.  Despite the plaintiff’s persistent and consistent complaint of chest pain (anterior chest pain, coming from within), there was no chest wall tenderness. 

viii)   X-ray examination revealed mild anterior wedging at T6, T7, T8.  Buckling of the cortex was noted at the anterior border of T7 vertebra, minimal irregular depression was noted at the upper endplate (border) of T7. 

ix)   For assessment of permanent impairment and disability in practical terms, activities that cause increased stress to chest/upper back (eg heavy lifting for prolonged period, climb activities) can cause discomfort or even pain in the chest region.  At the same time, the plaintiff is independent in his activities of daily living.

x)   Both doctors agree that at the time of the assessment, the plaintiff’s injuries have reached maximal medical improvement.

Supplemental Orthopaedic Expert Report dated 29 January 2018

13.  In light of the plaintiff’s immigration records of the period from 17 September 2012 to 26 October 2017 and Facebook photos of the plaintiff from 16 December 2013 to 4 December 2014, both doctors produced a supplemental orthopaedic report. 

14.  Essentially, investigative works carried out by the defendant has shown that the plaintiff went on trips in the PRC after the accident.  In the year prior to the accident, he had travelled 19 times, mostly to mainland China.  In the year after the accident, the plaintiff had travelled 13 times, also mostly to mainland China. 

15.  This was explained by the plaintiff that the accident, as well as the taking care of his father who had become terminally ill, had made him rather depressed or moody.  His wife then encouraged him to go for tours and receiving massages and acupuncture treatments in Shenzhen.  During these trips he had needed to take rests. 

16.  It was also discovered that the plaintiff was able to carry out some paint work for his sister’s flat in April 2017. 

17.  Facebook photos also showed that he had attended gatherings with friends, going down a slide/canal on a raft, camping and riding on an all-terrain vehicle. 

Dr Lam’s opinion

18.  Dr Lam opined that the plaintiff had been honest, as shown in his denial of any anterior chest wall tenderness upon physical examination, despite reporting persistent chest pain.  He found it unlikely that the plaintiff was feigning his symptoms as he repeatedly stated that he landed on his back, it would not be normal to feign symptoms of front chest pain coming from within instead of back pain.  Dr Lam noted that the repeated and detailed assessments recorded in the serial Occupation Therapy Work Rehabilitation Assessment showed that the plaintiff had shown consistent efforts using genuine effort in the work assessments and that he had tried hard to improve his condition, yet there was still mild chest pain upon heavy exertion.  

19.  Dr Lam opined that it is most likely that the plaintiff had a severe injury to back of chest/thoracic back region, resulting in wedging of vertebrae, most likely representing mild compression fractures at T6, T7, T8, causing persistent pain in the chest (felt as persistent anterior chest pain as if coming from within the chest).  This is consistent with the mechanism of injury described if it did happen. 

20.  Dr Lam found the duration of sick leave issued by the plaintiff’s treating specialists as appropriate and should be endorsed. 

21.  Dr Lam ruled out Scheuermann’s disease as the cause of the pain.

22.  In the Occupational Therapy Report/Work Rehabilitation Assessment, the plaintiff was assessed as not matching the overall work demand and current capacity, with a significant degree of limitation.  Dr Lam is of the opinion that with more self-exercises to strengthen the chest/upper back and a gradual return to work programme with breaks for rest or stretching after prolonged period of work), the plaintiff may be able to gradually return to his pre-accident job with a reduction in work capacity.  As an alternative, jobs requiring less heavy physical demand on the chest/upper back would also be suitable. 

23.  Dr Lam accepts the plaintiff’s explanation for the short trips (ie massage/acupuncture treatments) to China as plausible. The more strenuous activities as seen from Facebook photos were undertaken 8-9 months to over a year post-injury.  Dr Lam saw such progress of function as compatible with the progress as documented in the various medical reports.  The activities undertaken were also consistent with the report findings at the various respective times.  By April 2017, it is Dr Lam’s opinion that the plaintiff should be able to carry out the residential paint work for his sister.  When the plaintiff undertook rafting activities, his manual lifting capacity was assessed at 12-20 kg.  When he went camping, his manual lifting capacity was assessed at about 17-25 kg.  When the plaintiff rode on the all-terrain vehicle, his manual lifting capacity was assessed at 19-30 kg, which is a heavy weight. 

24.  Dr Lam preferred to base his opinion on the detailed and professional documentation by the various hospital departments than static Facebook photos which he did not find helpful in determining his actual functional status or work capacity. 

25.  Dr Lam maintained his opinion that the plaintiff’s chest/thoracic back injury should carry an 8% whole person impairment and an 8% loss of earning capacity. 

Dr Yeung’s opinion

26.  Dr Yeung opined that from the history of the injury and the subsequent x-ray pattern, the injury was likely to be more serious than originally expected with the probable wedge fracture of the vertebrae.  However the plaintiff had shown good recovery as evident from the orthopaedic, physiotherapy and occupational therapy assessment.  Subsequent investigation by CT thorax could not identify a cause of his anterior chest pain.  Dr Yeung opined that although the initial injury was severe, there was no further structural evidence to explain the nature of the continuous anterior chest pain when the more serious spinal injury has recovered. 

27.  Dr Yeung opined that the plaintiff had a probable severe injury to his posterior chest and thoracic spine area, causing mild compression fractures of T6-8 vertebrae.  However, he is of the view that the plaintiff had made good recovery.  From the activities undertaken by the plaintiff, including carrying out residential paint work for his sister, going on frequent trips, riding an all-terrain vehicle in Thailand, Dr Yeung is of the view that the degree of residual pain and impairment is mild and the physical ability is considered as very functional. 

28.  Dr Yeung opined that the feigning of the symptom is an unlikely possibility and suggested lack of confidence or fear of re-injury as a possibility contributing to the subjective pain. 

29.  Dr Yeung opined that with further self-directed exercises for strengthening and a gradual return to work programme, he should be able to return to his pre-accident job with normal work capacity. 

30.  As to the amount of sick leave granted, Dr Yeung opined that the duration of sick leave granted up to 11 November 2015 was appropriate and any subsequent sick leave beyond this date would be inappropriate. 

31.  Dr Yeung estimated that it is reasonable to expect the plaintiff to return to his pre-accident capacity, and his percentage of impairment or loss of earning capacity should be at 3% (adjusted downwards from 5% after seeing the investigative materials).

Analysis

32.  Prior to the investigative materials, there was relatively little divergence between the two doctors.  It was only after the investigative materials were disclosed that the opinions of Dr Yeung were adjusted as to the extent the plaintiff could return to his pre-accident job with normal work capacity. 

33.  Mr Yu for the defendant says the Court should note the plaintiff’s unsatisfactory evidence when cross-examined on a consultation note written by Dr Mak Yan Kit after the plaintiff’s consultation dated 4 February 2015.  According to the consultation note, the plaintiff complained of recurrent frontal chest pain, claiming the pain recurred after working recently and that the pain occurred after he finished his usual duties on the construction site.  Dr Mak also remarked that the plaintiff had strongly requested for sick leave.  Mr Yu says that as the plaintiff insisted that he had not gone back to work after the accident, he must have been lying to Dr Mak in order to obtain sick leave.  In response, the plaintiff first said that Dr Mak might have misunderstood him when he told him he had been swimming recently.  The plaintiff later said that he had forgotten what was said that day. 

34.  Based on this, Mr Yu urges the Court to infer that the plaintiff had fabricated or exaggerated his condition regarding the residual chest pain.  I agree that the plaintiff’s answer in relation to the consultation note dated 4 February 2015 was dissatisfactory.  However, whether the plaintiff is fabricating his condition needs to be looked at against the bulk of the other medical reports: 

1) In the occupational therapy reports/work rehabilitation assessments, the plaintiff was assessed as not matching the overall work demand and current capacity, with a significant degree of limitation.  

2) the repeated and detailed assessments recorded in serial occupation therapy work rehabilitation assessments showed that the plaintiff had shown consistent efforts using genuine effort in the work assessments and that he had tried hard to improve his condition, yet there was still mild chest pain upon heavy exertion. 

3) Both Dr Lam and Dr Yeung are of the view that the plaintiff is not feigning his symptoms. 

35.  I am of the view that the expert’s opinions and the contemporaneous occupational therapy reports/work rehabilitation assessments provide better guidance on the plaintiff’s true physical state than one dissatisfactory answer under cross-examination. 

36.  After seeing the plaintiff in the witness box, I am of the view that the plaintiff is an overall honest witness. I agree with Dr Yeung’s and Dr Lam’s opinion that it is unlikely the plaintiff is feigning his symptoms.  I accept that the plaintiff is still experiencing anterior chest pain, especially during exertion. 

Pain, Suffering and Loss of Amenities

37.  Dr Yeung opined that the plaintiff had a probable severe injury to his posterior chest and thoracic spine area, causing mild compression fractures of T6-8 vertebrae.  However, he is of the view that the plaintiff had made good recovery.  Dr Lam opined that it is most likely that the plaintiff had a severe injury to back of chest/thoracic back region, resulting in wedging of vertebrae, most likely representing mild compression fractures at T6, T7, T8, causing persistent pain in the chest (felt as persistent anterior chest pain as if coming from within the chest). 

38.  A number of decisions under this head of claim were cited.  Mr Yu cites: Lai Jianxi v Sakoma (HK) Ltd (HCPI 757/2009), Lama Kalpana v. Nepalese Friend Int’l Manpower Service Limited and another (HCPI 721/2007), Tsang Tsun Keung v Ko Wang International Trading Ltd (HCPI 373/2009), Khan Amir Kwok Yui Chor v Man Wah Cho (HCPI 422/2009).  Mr Lim cites Li Sau Keung v Maxcredit Engineering Limited v Anor. (CACV 16/2003), Limbu Netra Kumar v Yau Lee Construction Co Ltd and anor. (HCPI 234/2002) and Christopher Gordon Young v Lee Chu (HCPI 1484/2000).  Cases are fact sensitive and offer but general guidance in the assessment exercise.  On the plaintiff’s own admission, his social life and amenities are not affected.  In my considered view an award of HK$200,000 would be just and appropriate.  I so order. 

Pre-trial loss of earnings

39.  At the time of the accident the plaintiff was employed by the defendant as an electrician.  He first joined the defendant in May 2011.  There is no dispute that he was drawing a daily wage of HK$550 from October 2012 onwards and that he was entitled to over-time allowance of HK$137.5 per hour. 

40.  In his Re-Re-Revised Statement of Damages, the plaintiff claims that when he was working at the HKCEC, it was expected that the defendant would provide him with lunch and tea amounting to HK$75 per day.  Therefore, the plaintiff says on a conservative basis that the plaintiff’s monthly earnings at the time of the accident should be (HK$550 + 75) x 26 days = HK$16,250.  The plaintiff says that one also needs to take into account the increase in earnings between time of the accident and the present. According to the quarterly report of wages and payroll statistics there was a 27.24% increase in wages for an electrician between September 2013 and September 2018.  Thus the average pre-trial monthly earning should be (HK$16,250 + (HK$16,250 x 127.24%))/2 = HK$18,463.25. 

41.  The defendant disputes the basis for calculating the monthly earnings.  This is because over the year preceding the date of accident, the plaintiff had worked with the defendant on average 15.27 days per month.  On average, the plaintiff had worked 24.1 shifts and earned HK$13,095 per month.  The defendant says this average is a more realistic reflection of the pre-trial monthly earning.  I agree.  It is clear that the plaintiff’s earnings were based on how many number of shifts of work he had undertaken in that month rather than how many days he would work on average. 

42.  In addition, there being evidence of the plaintiff having worked for another employer, this amount also ought to be taken into account.  During 1 April 2012 to 31 March 2013, the plaintiff received HK$37,900 from a Kar Wing Logistics Limited.  This represents an average monthly income of HK$3,158. 

43.  The plaintiff also gave clear evidence that according to the practice within the trade, whenever they work at HKCEC, the employer is expected to provide meals to them, as they would be working within the HKCEC through lunchtime.  The plaintiff gave evidence that when he worked with the defendant, half the time would be spent at HKCEC and half the time would be at residential projects.  The plaintiff accepted that he would not be entitled to a meal allowance during the times he was working at residential projects.  I accept that the plaintiff was also entitled to meal allowance when he worked at HKCEC.  According to the evidence, the average number of days he worked at the HKCEC per month was 8 days.  Thus a meal allowance of HK$75 x 8 = HK$600 per month should be added to the monthly earning. 

44.  Mr Yu agrees that there should be an uplift of the figure by 27.24%.  Thus, the pre-trial monthly earning should be {(HK$13,095 + HK$600 + HK$3,158) x 127.24% + (HK$13,095 + HK$600 + HK$3,158)}/2 = HK$19,149.  The plaintiff had pleaded in his Re-Re-Revised Statement of Damages an amount of HK$18,463.25 as the plaintiff’s pre-trial average monthly earnings.  Based on the above calculation, I am satisfied that there is sufficient basis for the Court to adopt a pre-trial monthly earnings of HK$18,463.25 (as pleaded by the plaintiff in the Re-Re-Revised Statement of Damages)in calculating damages. 

45.  The plaintiff was granted in total 856 days of sick leave.  It is trite that the court is not bound by the issuance of sick leave certificates to decide what is the appropriate sick leave period in calculating damages.  The plaintiff had clearly testified that as at November 2014, his physical state had already improved and he could have taken up employment requiring less physical strength.  After considering the detailed medical reports from the various hospitals, the plaintiff’s evidence and the experts’ opinions, I agree with Dr Yeung’s opinion that only sick leave granted up to 11 November 2015 were appropriate. 

46.  The plaintiff agrees that for the 11 months that he stayed out of work to look after his father should be taken out of the calculation. 

47.  The plaintiff plans to go back to work as a GOGOVAN driver, earning a net monthly income of about HK$12,000. 

48.  Therefore, the pre-trial loss of earnings amount to:

a)   Period of sick leave from 17 September 2013 to 11 November 2015: HK$18,463.25 x 12/365 x 786 days x 105% = HK$500,966 

b)   Period from 12 November 2015 to 25 March 2019: 

(HK$18,463.25 – HK$12,000) x 12/365 x (1230 days – 330 days) x 105% = HK$200,803 

HK$500,966 + HK$200,803= HK$701,769

Post-trial Loss of Earnings

49.  Dr Yeung opined that with further self-directed exercises for strengthening and a gradual return to work programme, he should be able to return to his pre-accident job with normal work capacity. 

50.  Dr Lam is of the opinion that with more self-exercises to strengthen the chest/upper back and a gradual return to work programme with breaks for rest or stretching after prolonged period of work), the plaintiff may be able to gradually return to his pre-accident job with a reduction in work capacity.  As an alternative, jobs requiring less heavy physical demand on the chest/upper back would also be suitable. 

51.  With the chest pain (which is accepted by both experts to be there) the reality is that it is unlikely for the plaintiff to return to his previous job.  The experts’ opinions are based purely on medicine, without taking into account the commercial reality of Hong Kong, a society which demands efficiency in the work place.  Employers will always prefer to hire the more able-bodied before considering those with reduced efficiency.  Khan Arman v Cheung Ying Construction Engineering and Anor (HCPI 231/2005).  This is particularly so in workplaces requiring physical labour.  It is difficult to imagine an employer will allow an employee to work a “gradual return to work programme” or work at a reduced pace and choose less strenuous work within a work place requiring manual labour. 

52.  I am thus satisfied that the plaintiff has incurred post-trial loss of earnings of (HK$18,463.25 – HK$12,000) x 1.05 x 12 x 12.89 = HK$1,049,722.

Loss of Earning Capacity

53.  I am of the view that the plaintiff will suffer little risk of being disadvantaged in the labour market in view of his planned new self-employed business of operating a GOGOVAN business, which involves taking orders from individual customers.  The plaintiff can control how many orders he takes on and can schedule breaks in between.  The plaintiff also gave evidence that even with his chest pain, he could take breaks in between orders.  I will order HK$50,000 under this head of damages. 

Medical expenses, disbursements

54.  The plaintiff had incurred medical expenses as follows: 

Pamela Youde Nethersole Eastern Hospital	HK$1,400
Tang Shiu Kin Hospital	HK$5,700
Ruttonjee Hospital	HK$100
Hong Kong Baptist University Chinese Medicine Specialty Centre	HK$632
Sok Kwu Wan GOPC	HK$225
Total:	HK$8,057

55.  The defendant does not dispute this sum. 

56.  The defendant disputes the expenses incurred for Chinese medicine and tonic food, for which there are no receipts in the sum of HK$12,280 and HK$11,280.  Having heard oral evidence of the plaintiff, I will allow a total sum of HK$9,000 for Chinese medicine and tonic food. 

57.  Traveling expenses of HK$14,000 is disputed as there are no receipts.  I will allow HK$5,000 under this head, as a reasonable amount of travelling expenses incurred for the number of treatments the plaintiff attended. 

Summary of Damages

58.  

Pain, Suffering and Loss of Amenities	HK$200,000
Pre-trial Loss of Earnings	HK$701,769
Post-trial Loss of Earnings	HK$1,049,722
Loss of Earning Capacity	HK$50,000
Medical Expenses	HK$8,057
Tonic Food	HK$9,000
Travelling Expenses	HK$5,000
Total Damages	HK$2,023,548
Less: Employees' Compensation received	(HK$489,000)
Net Damages	HK$1,534,548

Interest

59.  I award interest on general damages for PSLA at 2% per annum from the date of service of the writ up to the date of judgment and interest on pre-trial loss of earnings and other special damages at half the judgment rate from the date of accident to the date of payment of employees' compensation, and thereafter on the remaining balance, after the deduction of employees' compensation, up to the date of judgment. 

Orders

60.  There shall be judgment in the sum of HK$1,534,548 with interest at 2% p.a. on the award for PSLA from the date of the service of the writ until the date of judgment and interest on pre-trial loss of earnings and other special damages at half the judgment rate from the date of the accident to the date of payment of employees' compensation, and thereafter on the remaining balance, after the deduction of employees' compensation, up to the date of judgment. 

61.  The Plaintiff will also have his costs of the assessment including any costs reserved in respect thereof with certificate for counsel, to be taxed if not agreed.  There will be Legal Aid Taxation of his own costs.  The cost order shall be nisi in the first instance with liberty to apply within 14 days from the date hereof. 

62.  I thank Counsel for their invaluable assistance.