CHU KAM HUNG v. SHING LEE (MEAT SUPPLIES) HONG LTD

HCPI 802/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 802 OF 2013

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JUDGMENT

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1. The plaintiff brings this action to claim damages for personal injuries suffered by him in an accident at work that occurred at about 11:15 a.m. on 31 July 2008. At the time, he was employed by the defendant as a labourer and delivery worker, and worked at the defendant’s meat processing factory located at Unit A2, on the Ground Floor of the Kader Industrial Centre, 17-19 Lok Yip Road, Fanling, New Territories.

2. The accident occurred at a loading platform outside the factory. The plaintiff fell a distance of about 1 metre from the platform and landed in the empty parking bay of the car park of the Industrial Centre, sustaining a fracture of the right calcaneum[1] and contusion of his back.  The car park was used by lorries delivering goods to and taking goods from the Industrial Centre.  The defendant admitted that he was the employer of the plaintiff and the occupier of the factory, but denied liability, and also contested the quantum of the plaintiff’s claims.  

The Location of the Accident   

3. The parking bay, which the plaintiff fell into, is depicted on the plan annexed to the defendant’s tenancy agreement of the factory premises.  The loading platform, at a height of about 1 metre from the ground, runs alongside the parking bays from the left to the right of the premises, as shown on the plan.  There are 2 sets of lifts, depicted at the left and the right of the plan, and these service the factory premises at the upper levels.  The defendant’s ground floor factory is located in the middle of the ground floor and its entrance is located in the middle of the loading platform, and is closest to the parking bays in the middle of the car park. 

The Accident    

4. The plaintiff’s main duty was to cut meat in the meat processing factory and to assist in their transportation.  He had to perform heavy manual work and had to handle pig carcasses that weighed up to 160 catties. He commenced work at midnight and worked till 11:30 a.m. the next morning.  He would cut pig carcasses during his night shift which would be placed inside plastic baskets.  The plastic baskets containing the cut meat would be loaded onto lorries to be delivered to supermarkets in the early morning. The empty baskets would be collected and returned to the factory later on in the day. 

5. The plaintiff clarified, during his cross examination, that after he cut the meat, other workers would take the cut meat and package them and that the packets of meat would be placed in blue plastic baskets to be loaded onto the lorries for delivery to the supermarkets in the early morning.  The blue baskets, loaded with the packets of meat, would be pushed out from the factory premises onto the loading bay and loaded onto the lorries that were parked at the parking bays in the vicinity of the factory premises.

6. The plaintiff also said in his evidence-in-chief and clarified in his cross examination that, before cutting the meat which would be packaged for delivery to the supermarkets, he would cut off the skin and the fat from the pig carcasses, which he would place into other plastic baskets, and that the fat and skin placed in those other plastic baskets were not packaged or sealed. Those plastic baskets containing the fat and skin of the pig carcasses would also be pushed out onto the loading platform and loaded onto a lorry for delivery elsewhere.  The floor of the loading platform was made greasy by the fat that came out from those plastic baskets.

7. At the time of the accident, which was near the time when he went off work, he was the only person working on the loading platform.  At that time, he was counting and moving the empty plastic baskets that had been returned by the lorries after the morning delivery of the packaged meat to the supermarkets.  His job was to pile the empty baskets into stacks of 10 each and push those baskets from the edge of the loading platform, where they had been deposited when unloaded from the returning lorries, to the external wall of the factory premises near the doors of the factory.  Photographs, taken after the accident, of the location of the accident show stacks of blue and green latticed plastic baskets which had been placed on the loading platform next to the external wall of the factory premises[2]. The photograph at p.216-4 of the trial bundle also shows a CCTV camera that had been installed by the defendant at the external wall of its factory premises, which I shall refer to later. 

8. After he had pushed a stack of baskets against the external wall of the factory premises, he would return to the edge of the platform to make another stack of baskets.  At the time of the accident, his back was towards to entrance of the factory and he was facing towards the edge of platform.  He took up 4 baskets that had been placed near the edge of the platform and turned to place them on top of another stack of baskets.  At that moment, some carton boxes fell onto the stack of plastic baskets and onto the baskets that he was carrying, causing him to move backward and to slip and fall from the loading platform onto the parking bay below.  He landed on his right heel before his hip struck the ground. 

9. Although the statement of claim made no mention of the floor of the loading platform being slippery, the plaintiff did say, in his witness statement dated 18 June 2012, that, as there was always meat and other goods being transported on that platform, the floor of that platform was very slippery.

10. The plaintiff was seen and received treatment at the Accident and Emergency Department of North District Hospital shortly after the accident had occurred.  Although he was discharged on the same day, he returned to North District Hospital for treatment on a number of occasions.  He said in his evidence-in-chief that, after his discharge from North District Hospital where he had spent a few days, he returned to the factory premises and watched the CCTV tape recording of the accident.  He saw from that recording that a dray loaded with carton boxes was being pushed by a worker towards him and that the carton boxes fell from the dray onto the plastic baskets he was carrying.  It is common ground that the worker who had been pushing the dray was not employed by the defendant.

11. Although the plaintiff’s original pleaded case was that the defendant had exclusive possession of the loading platform, at least exclusive possession of that portion of the loading platform in the immediate vicinity of its factory premises, Mr Andy Hung, counsel appearing for the plaintiff, conceded that the defendant did not enjoy exclusive possession of the loading platform. 

12. Mr Lam Yiu Sang was called by the defendant to give evidence. At the time, he was the Vice General Manager of the defendant.  He confirmed that he was not present at the time of the accident which had occurred on that part of the loading platform depicted in the photographs on pp.216-4 to 216-6.  I accept his evidence that the loading platform in the immediate vicinity of the factory premises was not in the exclusive possession of the defendant.  However, he conceded that the defendant’s lorries would park in the parking bay immediately opposite the factory premises, being a convenient location for loading and unloading the plastic baskets; whereas the other occupiers on the upper floors found it more convenient to load and unload their goods nearer to the lifts serving the upper floors at the two sides of the building.  Mr Lam stated that after the delivery of the meat was completed, the defendant’s lorries would return to the Industrial Centre and park opposite the factory premises for staff to unload the empty plastic baskets.  They would pile them into stacks of 10 and convey them to the factory quite easily because they were empty.  They did not need a cart to do so.  The management company did not object to the defendant’s practice of leaving the empty plastic baskets on the loading platform outside the factory premises for an hour or so, before they were moved back into the factory premises by the night shift workers who would complete their shift by noon time.  He also confirmed that there was a CCTV located on the external wall of the factory premises and that its purpose was to ensure that no one would take away the defendant’s empty plastic baskets.  He also confirmed that the plastic baskets had words printed on them to the effect that removal was strictly forbidden, otherwise action would be taken. 

13. He also confirmed that he was familiar with the meat cutting process and that the work included cutting the skin and the fat from the carcasses and placing them into plastic baskets for the suppliers of the pig carcasses to pick up.  He also agreed that some of these plastic baskets containing the skin and the fat would be moved to the loading platform, although other plastic baskets would remain in the factory.  However, he disagreed that the transport of the plastic baskets containing the skin and the fat from the pig carcasses caused the floor of the loading platform to be greasy. 

14. The evidence of the last witness, Mr Lam Wai Man, also called by the defendant, did not assist me on any issue arising on the question of liability. 

Findings and Analysis

15. Although the plaintiff had maintained that he had never seen workers of other companies working on the loading platform when he was on duty during the 9 months that he had worked at that place for the defendant, I accept the defendant’s case that the loading platform was a common area and not in the exclusive possession of the defendant.  However, I also find that employees from the upper units used the loading platform nearer to the lifts of the Industrial Centre serving the upper floors at both sides of the loading platform much more than the loading platform in the centre of the car park.

16. I accept the evidence of the plaintiff on how the accident happened.  I find that he was startled by the falling boxes and instinctively stepped back, and, in doing so, slipped and lost his footing because the floor of the loading platform was slippery by reason of the deposit of fat on that loading platform.  That occurred over a period of time by the practice adopted by the defendant to deposit the skin and the fat cut away from the pig carcasses into the latticed plastic baskets, from which fat and grease could seep out onto the floor of the loading platform when the baskets were moved from the factory premises to the edge of the loading platform. 

17. Although the primary cause of the plaintiff stepping back and slipping was the negligent act of the worker pushing the dray, who permitted the carton boxes to fall onto the plaintiff, I find that a material and significant cause of the plaintiff slipping and falling to the ground below was the presence of grease on the floor of the loading platform. 

18. I find that the defendant was negligent in permitting that portion of the loading platform where the plaintiff was required to work to become greasy, and that it failed to take any adequate remedial steps to keep the loading platform free of grease and safe to work on.  The defendant adopted an unsafe system of transporting the plastic baskets containing skin and fat from the factory premises to the lorries parked at the loading bay.  Instead of using latticed plastic baskets, the defendant could have used waterproof plastic baskets which did not permit any seepage of fat and grease from them. Alternatively, the defendant could have transported the latticed plastic baskets on carts and reduced the risk of fat and grease falling onto the floor of the loading platform.  The defendant could also have adopted a system of cleaning the floor of the loading platform in the vicinity of its factory premises to keep it free from grease and non slippery, but no evidence was adduced before me as to any cleaning work undertaken either by the defendant, or by the manager of the Industrial Centre, or to explain why the defendant could not undertake any cleaning work there.

19. Although the defendant might not have foreseen that a worker employed by a third party negligently permitted carton boxes to fall on the plaintiff, it is not necessary for a defendant to foresee the exact mechanism of the injury before it can be judged liable in negligence. The plaintiff suffered damage because he slipped and fell on account of the greasy state of the floor of the loading platform.  It was reasonably foreseeable that the plaintiff might slip and fall on account of the greasy state of that floor, even though it might not have been foreseeable that he would be startled by the negligent action of a worker employed by a third party.  So long as it was foreseeable that the plaintiff might slip on account of the greasy floor, it was immaterial that the precise chain of events leading to him slipping and falling was unforeseeable.  The accident that occurred was within the scope of the foreseeable risk created by the defendant’s negligence. 

20. For the reasons stated above, I find the defendant liable in negligence to the plaintiff for breach of its duty of care to the plaintiff, as employer, to maintain a safe place of work and to maintain a safe system of work.

21. I also find that the defendant liable for breach of the common duty of care under the Occupiers Liability Ordinance, Cap. 314, on the ground that it was an occupier of that portion of the loading platform where the accident occurred where the plaintiff worked as a lawful visitor.  I find that the plaintiff had a sufficient degree of control over that portion of the loading platform where the accident occurred so as to ensure that it was kept clean and non slippery.  Although I have found that the loading platform was a common part of the Industrial Centre and not in the exclusive possession of the defendant, it is trite law that control need not be entire nor need it be exclusive.  The defendant exercised a considerable degree of control over that portion of the loading platform where the accident occurred.  It stored its plastic baskets there for a considerable period of time, and it installed a CCTV on the external wall of the factory premises to monitor that portion of the loading platform so as to ensure that its plastic baskets were not taken away by any third party or parties.  Its workers transported plastic baskets across that portion of the loading platform, to and from the factory premises and to and from the lorries parked at the parking spaces opposite to the factory premises.  No evidence had been adduced to suggest to me that the defendant would have been prevented by the managers of the Industrial Centre or by any other party from keeping and maintaining the floor of that portion of the loading platform in a clean and non slippery condition. 

22. As I have already found the defendant liable in negligence and for breach of common duty of care under the Occupiers Liability Ordinance, I need not consider whether or not it is also liable for breach of statutory duty.

23. Finally, I find that there was no contributory negligence on the part of the plaintiff.  No evidence has been adduced before me to suggest that he acted in a careless manner or failed, in any way, to have regard to his own safety.

Quantum

24. The plaintiff was born in 30 October 1955.  He is now 59 years of age.  The primary contest between the parties on quantum is whether or not the plaintiff suffers from Complex Regional Pain Syndrome (“CRPS”). 

Injuries and Treatment

25. According to the report of Dr Ho Man Kam of the Accident and Emergency Department of North District Hospital, where the plaintiff attended at about midday on 31 July 2008, he claimed that he fell from a height of about 1.5 metres and hurt his right foot.  There was tenderness around the right heel and right lateral lower back.  No open wound nor bruise was found clinically.  X-ray showed a non-displaced crack fracture of the right calcaneum.  X-rays of the ankle, foot, pelvic and lumbar spine were normal.  He was treated conservatively with plastic of paris.  At his follow-up, X-ray showed stable non-displaced fracture.  Despite that, he claimed to have pain at the fracture site and was referred to the Orthopaedic Clinic for further management in September 2008. The further management of the plaintiff is summarized in the joint expert report of Dr Baldwin Chan, the orthopaedic expert nominated by the plaintiff and Dr Peter Ko, the orthopaedic expert nominated by the defendant.  Both experts gave evidence before me. 

26. When he was examined by the Orthopaedic Department in September 2008, tenderness at his right calcaneum was noted and the right subtalar joint was stiff.  He was referred for physiotherapy. At a subsequent follow-up, serial X-rays showed progressive fracture healing but his tenderness was almost the same despite the physiotherapy.  He had to walk with a pair of crutches. He was referred to the Pain Team of the Pain Clinic for further assessment.  At every follow-up, the slightest passive movement of his ankle would induce a significant tenderness around his right ankle and foot.

27. The plaintiff was first seen in the Pain Clinic in April 2009.  According to the medical report of Dr Cheung Ning dated 15 October 2009, X-ray and CT of his right foot showed satisfactory alignment with healed fracture.  However, the plaintiff experienced persistent pain over his right ankle and dorsum of the foot since the accident.  The foot pain was moderate to severe and associated with coldness and paraesthesia.  It could be aggravated by cold weather and weight bearing or walking. Analgesics, physiotherapy (TENS), hot pad and light mobilization provided partial pain relief. He had fragmented sleep due to the presence nocturnal leg cramps. Physical examination revealed allodynia (excessive tenderness of skin) and decrease in skin temperature over his right foot.  Reduced range of movements and power was noted over toes of right foot. His impression was that the plaintiff suffered from CRPS affecting his right foot and ankle.  CRPS is a chronic neuropathic pain condition and would last permanently as currently available treatment could only offer symptom control and prevention of further functional impairment. The plaintiff was offered diagnostic lumbar sympathetic block (“LSB”) but declined the offer. 

28. At subsequent attendances in 2009, he was again offered LSB but declined the offer on account of his fear of the risks involved.  In a later report dated 24 March 2011, Dr Cheung Ning noted that from his review of his attendances on a number of occasions in 2010, and lately in March 2011, his pain syndrome worsened during cold weather and required escalating dose of analgesics for symptom control. He needed to walk with both crutches. 

29. The plaintiff had also examined by Dr Au Kin Ming, an orthopaedic specialist who had been engaged by the defendant’s insurer to examine him.  I accepted into evidence the findings that he made during his examination of the plaintiff, but I declined to accept his opinion evidence as he was not a treating doctor and because leave had not been granted for his expert opinion to be adduced before me in court. 

30. There was withdrawal action on the part of the plaintiff when Dr Au tried to gently mobilize his right ankle.  However, he was observed by Dr Au to be able to move his right ankle upon distraction.  The plaintiff reported extreme pain in his right ankle and foot upon passive movement of the right ankle.  Dr Au could not test for muscle power of the right ankle because of the extreme pain reported when the plaintiff was asked to move his right ankle.  The plaintiff reported reduced sensation of the entire right foot as compared to the left.  Dr Au did not notice any trophic change over the skin of the area of lost sensation nor was any trophic ulcer seen over that area.  He reported pain when Dr Au tested for tenderness.  However, when Dr Au tested for lost of sensation, using the same intensity of palpation force that he had used when testing for tenderness, the plaintiff did not report any pain or tenderness.  Finally, he noted that the circulation of the right foot was good.  The radiological findings were as follows: fracture healed with no implant; joint surface was congruent. The height of calcaneum was normal. Tibial calcaneal angle was 115 degrees (normal).  Bohler’s angle[3] was 24 degrees. There was no significant widening of bone.  No degenerative change was noted.  Ankle joint looked unremarkable.  Joint space was well preserved.  No abnormal soft tissue shadow was detected.

The Joint Examination

31. At the joint examination by the experts in this case, which took place in April 2011, the plaintiff complained of residual right ankle and heel pain which was constant, and which increased when he walked more than 10 minutes and in cold weather.  Sometimes, it increased without aggravating factors. It was associated with swelling and redness on occasion.  He used analgesic 3 times a day.  He also complained of numbness around his foot and ankle when the pain increased.  He also complained of residual pain over the whole of his back.  There had been no improvement over the past 2 years. 

32. During the physical examination, the plaintiff was seen to be wearing a pair of sports shoes.  He had walked into the clinic with a pair of elbow crutches.  He sat for 25-30 minutes during the interview without any problem.  When asked to stand without the crutches, he stated that he could not do so.  While walking with the pair of crutches, he shifted almost all the weight to the left lower limb.  He stated that he had started wearing the sports shoes since after the injury in 2008.  On inspection, the sports shoes were a normal pair with normal wear-and-tear.  The base of the shoes on both left and right had similar worn out pattern.  

33. Examination of the back showed no swelling, deformity or scar.  No muscle spasm or tightness was detected.  On gentle touching the skin of the lumbar spine and para-lumbar muscle area, there was voluntary withdrawal reaction both when he was lying down and when he was standing.  While standing, on very gentle shoulder axial compression, he reported significant increase in low back pain.  While standing, he could not bend more than 10 degrees, extension was 0 degree, and other movements were practically nil because of limitation by pain.  However, in the sitting position, he was observed to be able to bend his back more than 30-40 degrees, in order to put on and take off his shoes and socks. 

34. While lying supine, straight leg raising test was conducted with the left leg raised 90 degrees and the right only 40 degrees, with complaint of stretching discomfort in the right thigh and knee.  However, while sitting on the couch, he was able to raise both legs more than 80-90 degrees without any complaint or discomfort. 

35. Inspection of his foot and ankle showed that there was very mild erythema (redness) skin coloration over the right foot and ankle area.  There was no mottling or cyanosis (bluish discoloration of skin). There was no abnormal sweating or moisture.  Skin texture was more or less similar on both sides.  There was no feature of soft tissue atrophy. There were no abnormal nail changes. Hair distribution was similar on both sides.  Skin temperature was similar on both sides and within normal limits. 

36. On gentle finger touch, there was voluntary withdrawal with complaints of excruciating pain around the whole foot area (both the dorsum and plantar area).  For this reason, passive movement of the foot, ankle and the toes could not be performed. Active movement by the plaintiff showed that there was no motion of plantar flexion, inversion or eversion, and that dorsiflexion was 5 degrees.

37. The following girth measurements were made:

	Right	Left
Trans malleolar girth	23.0 cm	22.0 cm
Calf girth	31.0 cm	32.0 cm
Thigh girth	38.5 cm	39.7 cm

Being told that the doctor was testing for sensation, he did not have any voluntary withdrawal or complaint of pain.  However, on being told that they were testing for tenderness, he reported excruciating pain on very gentle skin touch. 

38. The two experts agreed that the lumbar spine X-ray showed mild marginal spondylophytes compatible with mild degeneration, and that the thoracic spine X-ray showed mild degeneration of thoracic spine.  However, they disagreed slightly on the X-rays of the ankles and calcaneum.  While Dr Ko was of the view that the ankles X-rays were essentially normal, Dr Chan said that the ankles X-rays showed minimal degeneration of the ankles.  But that no other abnormality of ankles was detected.  According to Dr Chan, the X-ray showed reduction of Bohler’s angle on the right calcaneum as compared to the left side.  Subtalar joint space was symmetrical. There was mild osteopenia shown in the right calcaneum when compared to the left.  Dr Ko agreed that the Bohler’s angle was decreased, but he found the bone density normal and similar on both foot and ankle X-rays. 

The Experts’ Opinions

39. The experts differed on whether or not the plaintiff suffered from CRPS.  Both experts agreed that the right calaneum fracture had united at the time of their examination.  Dr Chan was of the view that there was mild malunion of the calcaenum which is common in this type of fracture.  Dr Ko stated that the X-rays taken in their joint assessment showed the fracture healed well with satisfactory alignment. There was no significant shortening or decrease in calcaneal height, and the Bohler’s angle was only minimally decreased.  Dr Chan found no evidence of head injury and stated that his back injury was a simple contusion injury which did not result in fracture or neurological injury.  Dr Ko noted that all along he was only reported to have mild tenderness in his right lower back area.  Both doctors agreed that the plaintiff was not a malingerer, but, according to Dr Chan, he was considered to be “pain-focused”, meaning that although he suffered from genuine pain, it was excessively expressed and exaggerated. Dr Ko was of the same view.  He did not suggest that the plaintiff was malingering, but that he was adopting a sick role.  Gross exaggeration and magnification of symptoms by patients was not uncommon and might be a subconscious form of communicating one’s problems to the doctor. 

40. Dr Ko gave evidence that calcaneal fractures are well-known to result in some degree of residual pain and stiffness.  As both experts have agreed that there has been a substantial degree of exaggeration by the plaintiff in this case, I have to be careful when I evaluate his evidence and decide whether or not he has satisfied me on a balance of probabilities that he suffers from CRPS.

41. Dr Ko was firmly of the view that he did not suffer from CRPS.  He referred me to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6^th Edition), at §16.5 on p.538, which stated that CRPS:

“… is a challenging and controversial concept, difficult to diagnose accurately, with epidemiological studies indicating that most such diagnoses are made within a workers’ compensation context … The hallmark of this condition is a characteristic burning pain that is present without stimulation or movement, that occurs beyond the territory of a single peripheral nerve, and that is disproportionate to any suspected inciting event. The pain is associated with specific clinical findings, including signs of vasomotor and sudomotor dysfunction and, later, trophic changes of all tissues from skin to bone.”

Dr Ko relied on the diagnostic criteria set out in the same section:

“TABLE 16-13

Diagnostic Criteria for Complex Regional Pain Syndrome

1)	Continuing pain, which is disproportionate to any inciting event.
2)	Must report at least one symptom in three of the four following categories: – Sensory: Reports of hyperesthesia and/or allodynia. – Vasomotor: Reports of temperature asymmetry and/or skin color changes and/or skin color asymmetry. – Sudomotor/Edema: Reports of edema and/or sweating changes and/or sweating asymmetry. – Motor/Trophic: Reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
3)	Must display at least one sign* at time of evaluation in two or more of the following categories: – Sensory: Evidence of hyperalgesia (to pinprick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). – Vasomotor: Evidence of temperature asymmetry and/or skin color changes and/or asymmetry. – Sudomotor/Edema: Evidence of edema and/or sweating changes and/or sweating asymmetry. – Motor/Trophic: Evidence of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
4)	There is no other diagnosis that better explains the signs and symptoms.

*A sign is counted only if it is observed and documented at time of the impairment evaluation.”

42. Dr Ko also quoted from §16.5 as follows:

“Since a subjective complaint of pain is the hallmark of this diagnosis, and since all of the associated physical signs and radiologic findings can be the result of disuse, an extensive differential diagnostic process is necessary. Differential diagnoses which must be ruled out include disuse atrophy, unrecognized general medical problems, somatoform disorders, factitious disorder, and malingering.”

43. Dr Ko was of the view of the plaintiff did not satisfy the criteria for diagnosing CRPS.  At the joint examination, he had shown unpredicted and unreliable features, gave grossly exaggerated and disproportionate responses. There were no corresponding objective physical signs present, except for mild erythema skin discoloration over the right foot and ankle areas.  There was a high suspicion that there was significant element of “learned illness behaviour”.  More lower limb muscle wasting should be present if he had avoided weight bearing on his injured lower limb for such a long period of time.  The similar wear-and-tear pattern on both his left and right shoes also contradicted reported difficulties walking with a pair of crutches.  

44. Dr Chan countered that opinion by stating that it was reported in the Pain Clinic’s report of 15 October 2009 that the plaintiff had “features of allodynia (excessive skin pain) and decrease in skin temperature over his right foot”.  These were features of CRPS.  The Pain Clinic doctor, who was his principal treating doctor at that stage, diagnosed the plaintiff to have CRPS.  He could not find evidence to contradict such a diagnosis.  Although the feature of CRPS and the plaintiff’s right leg was less vivid at their joint examination, this could be due to the dormant phase of his condition.  Dr Chan acknowledged that Dr Ko had used a stringent criteria of CRPS suggested by the AMA Guide but he would like to adopt a more lenient approach to such diagnosis.  He stated that in clinical practice, the AMA Guide was seldom used as a reference for the diagnosis of CRPS.  Therefore, Dr Chan still considered that the plaintiff was suffering from the aftermath effect of CRPS with excessive pain in his right heel at the joint examination. 

45. In his evidence-in-chief, Dr Chan discounted the weight to be placed on the even wear-and-tear of the plaintiff’s sports shoes.  He considered that if the plaintiff was not putting weight on one side, there ought to be uneven wear-and-tear, however, in this particular case, there might be other factors to explain the even wear-and-tear, for example, Dr Chan did not know how often he wore that pair of sports shoes, or how much he actually walked.

46. In response, Dr Ko said the criteria set out in the AMA Guide was the criteria adopted by the International Association for the Study of Pain. 

 Findings and Analysis 

47. I am not bound by the diagnosis of the treating doctor, Dr Cheung Ning, that the plaintiff suffered from CRPS.  I have to be satisfied on a balance of probabilities after having regard to the objective evidence, the evidence of the plaintiff, and the expert evidence which I prefer, that he suffered from CRPS.  Treating doctors generally accept at face value what is related to them by their patient.  They do not conduct a forensic examination to the extent that medical experts who give expert evidence to assist the court do.  An expert witness is alive, or should be alive, to his duty to the court to be nonpartisan and objective.

48. Having carefully considered the evidence of the plaintiff and of the experts, I conclude that I am not satisfied on a balance of probabilities that the plaintiff suffered from CRPS.  Indeed, I am able in this case to find, on a balance of probabilities, on the evidence before me that he does not suffer from CRPS.  I prefer the evidence of Dr Ko to the evidence of Dr Chan on this matter.  The science of medicine does not permit a less stringent standard of diagnosis to be applied by treating doctors and a higher standard of diagnosis to be applied by expert witnesses giving evidence in court.  The diagnostic criteria set out in the AMA Guide was adopted by the International Association for the Study of Pain and I see no basis for a less stringent standard of diagnosis to be applied by treating doctors. 

49. I was not impressed by the evidence of the plaintiff when he answered questions about his injuries and his condition.  There was a sharp contrast in the manner in which he answered questions in relation to the accident, when he was clear and forthright, and in the manner in which he answered questions about his injuries.  He stubbornly evaded the questions put to him in cross-examination and insisted in telling his own story.  When it was put to him that he did not complain of pain of his right ankle when the experts tested for loss of sensation, he responded inappropriately by asserting that he was lying on the bed and felt that the dorsum of his foot being pressed down, and that he withdrew and tried to evade the doctor because, on a previous occasion when he had received physiotherapy, he had felt great pain when his foot was pressed.  I do not accept his evidence that the experts did not examine his sports shoes and only saw them from a distance and that they never inspected the soles of his sports shoes.  

50. I accept the evidence of Dr Ko that the even wear-and-tear of the soles of the sports shoes, which the plaintiff told the experts he had worn since after the accident occurred in 2008, contradicted a diagnosis of CRPS in the present case.  I find this to be strong objective evidence that I can rely upon.  Avoiding weight bearing on the right foot would have caused less tear-and-wear on the right shoe.  Dr Chan was somewhat defensive when he stated that it was not known how much the plaintiff walked and how often he wore that pair of sports shoes.  However, no evidence was led by the plaintiff on this matter and all I have is his assertion to the experts during their joint examination of him that he had worn that pair of sports shoes from the time after the accident had occurred in July 2008 up to the time of the joint examination in April 2011. 

51. I accept the evidence of Dr Ko that the only objective abnormal findings at the joint examination was that there was very mild redness of skin in the right foot as compared with the left foot.  I also accept the evidence of Dr Ko that orthopaedic specialists are the primary carers of patients with injuries to their limbs and that it is for them to diagnose whether or not their patients are suffering from CRPS and, in cases of a positive diagnosis, to refer them to pain specialists for treatment. 

52. I also accept that there was no evidence of swelling or sweating changes or sweating asymmetry.  There was no evidence of trophic changes.  I am not satisfied that he suffered from mild osteopenia of the right ankle as suggested by Dr Chan. It was not possible to make an objective finding of allodynia (excessive pain to light touch) as the plaintiff had given inconsistent responses, and had not complained of pain when the same pressure was applied to test for loss of sensation.  Because of the plaintiff’s refusal to cooperate, they could not test the plaintiff’s passive range of motion.  Even if he suffered from some residual pain and decreased range of motion on account of the calcaneal fracture, such symptoms were common to calcaneal fractures; hence residual pain and swelling from the calcaneal fracture was a better explanation than a diagnosis of CRPS.

53. I also accept the evidence of Dr Ko that if the plaintiff, indeed, suffered from CRPS, then the presence of the symptoms of CRPS would be long standing and result in atrophy which was irreversible.  At the time of the examination, there were no features of soft tissues atrophy which spoke against a diagnosis of CRPS.  In this connection, I also prefer the evidence of Dr Ko to the evidence of Dr Chan, who accepted that the features of CRPS were less vivid at their joint examination as compared to the findings by the treating doctor, Dr Cheung Ning.  Dr Chan sought to explain this by raising the possibility that the plaintiff’s condition had entered a dormant phase.  Dr Chan has not supported his theory with any medical literature that suggests that CRPS symptoms can fluctuate and that the condition can become dormant.  I find that the slight muscle wasting on the plaintiff’s right leg is the result of disuse atrophy, and I accept the evidence of Dr Ko that more lower limb muscle wasting should be present if he had been avoiding weight bearing on his right lower limb from the time of the accident in July 2008 up to the time of the joint examination in April 2011. 

54. The plaintiff has failed to satisfy me that he suffers from CRPS.  Indeed, I find that he does not suffer from CRPS.  I find that he has adopted a sick role and that it was his own personality that led him to do so.  I also find that the accident and the physical injuries he suffered from did not adversely affect his personality but provided him with the occasion and opportunity for his pre-existing personality to manifest itself and lead him to adopt a sick role.  

Damages for Pain, Suffering and Loss of Amenities

55. The plaintiff has adopted a sick role and, as a consequence, has suffered from a substantial loss of amenities.  However, the defendant is only responsible for the injuries caused by the accident, it is not responsible for the plaintiff adopting a sick role as a consequence of his own personality.  He has adopted a sick role effectively for the last 7 years by moving about only on crutches, and thereby reducing his own mobility.  Both Dr Ko and Dr Chan were of the view that the combined whole person impairment from the calcaneal fracture was 3%.  Dr Ko did not consider that he suffers from any continuing impairment from his simple back contusion injury whereas Dr Chan assessed that to amount to a 2% impairment of the whole person. 

56. Given the gross exaggeration that the plaintiff has been proved to be guilty of, I have difficulty accepting Dr Chan’s opinion regarding the residual disability from his back injury.  I do accept that he suffered from a contusion injury of his back but I find that any problems arising from the back injury would have resolved within 12 months of the accident.  As I have found that the plaintiff did not suffer from CRPS, I do not accept the assessment of Dr Chan of an additional 8% permanent impairment of the whole person on account of CRPS.   

57. I have considered the authorities cited to me on the issue of PSLA.  In this connection, there is not much difference between the submissions of Mr Hung and Mr C K Wong, who appeared for the defendant.  Mr Hung submitted that the award should be $300,000 for PSLA for the calcaneal fracture and the back injury, whereas Mr Wong submitted that the award should be no more than $230,000.  Having regard to my findings on this issue, I cannot not accept Mr Hung’s submission that an additional $100,000 be awarded on account of CRPS.  Given the gross exaggeration on the part of the plaintiff, it is difficult to assess the extent of the residual disability of the right ankle.  However, the experts have agreed that the combined whole person impairment from the calcaneal fracture was 3%.  On that basis, and having considered the authorities cited to me, I award the sum of $275,000 as damages for PSLA in the present case. 

Pre-trial loss of earnings and MPF

58. The plaintiff earned an average monthly income of $8,673 from 1 April 2007 to 31 March 2008, not including MPF.  The Employees’ Compensation (Ordinary Assessment) Board assessed sick leave from 31 July 2008 up to 28 December 2009, a period of 17 months from the time of the accident.  Dr Chan was of the view that 2 years’ sick leave was reasonable for the plaintiff’s condition. Dr Ko’s evidence was that a sick leave period of up to 8  to 12 months would be appropriate and reasonable for the non-displaced or minimally displaced calcaneal fracture and simple back contusion.  I prepared to award damages for pre-trial full loss of earnings for a period of 20 months, including a period of 3 months for the plaintiff to look for suitable employment from the end of the sick leave on 28 December 2009 that was assessed by the medical board.  I am aware that the plaintiff was later granted sick leave beyond this date.  I am not bound by and place no weight on those sick leave certificates which were issued based on the subjective complaints of the plaintiff.

59. The evidence from Mr Lam Wai Man showed that comparable workers employed by the defendant earned a median rate of just under $11,000 from August 2009 to July 2012.  Approaching the matter broadly, I assess the plaintiff’s median full loss of earnings for the period of 20 months from 1 August 2008 to 31 March 2011 in the sum of $9,000 per month which, including loss of MPF, amounts to $189,000 ($9,000 x 20 months x 1.05).    

Future Loss of Earnings  

60. Notwithstanding the gross exaggeration by the plaintiff, I have come to the conclusion that the residual disability from his calcaneal fracture would have prevented him from carrying on the very heavy manual work that he was doing for the defendant and, for that reason, I conclude that he has suffered from partial loss of earnings from 1 April 2010, at which point of time he ought to have been in full employment but performing lighter work.  I find that, but for the accident, the plaintiff was likely to have worked for the defendant until the age of 65 before switching to lighter work.  Accordingly, I find that he has suffered partial loss of earnings from 1 April 2010 to 30 October 2015 when he would attain his 60^th birthday.

61. How do I assess this partial loss of earnings when no evidence has been adduced as to his notional earnings from performing lighter work?  Absent such evidence, I am unable to make this award on a multiplier/multiplicand basis, and I am limited  to compensating for this partial loss of earnings by making a global award.  Having regard to the likely loss of earnings from being restricted to doing lighter work and to the period of the loss in question, I award damages for loss of earnings capacity in the sum of $150,000. 

Special Damages     

62. This is agreed in the sum of $4,630 and I award the same as special damages.   

Employees’ Compensation       

63. The plaintiff has already received $254,967 as employees’ compensation.  The damages I have awarded has to be reduced by this amount.

Interest

64. The plaintiff is entitled to interest at 2% per annum on damages for PSLA from the date of the service of the writ to the date of judgment.  He is also entitled to interest at 4% per annum on special damages and damages for pre-trial loss of earnings from the date of the accident up to the date of payment of employees’ compensation.  As the latter exceeds my award for special damages and damages for pre-trial loss of earnings, no further interest would accrue after the date of payment of the employees’ compensation. An award of damages for loss of earning capacity is an award of general damages and does not attract interest even though a substantial portion of the award may have been made to compensate for loss that arose during the pre-trial period. 

Summary of Award

65. A summary of my award is as follows:

PSLA	$275,000
Pre-trial Loss of Earnings & MPF	$189,000
Special Damages	$4,630
Loss of Earning Capacity	$150,000
Sub-total:	$618,630
(Less: Employees’ Compensation)	($254,967)
Net Award:	$363,663*

      *(plus interest as awarded above)

Costs

66. I make a costs order nisi that the defendant pay the costs of the action to the plaintiff, to be taxed, if not agreed, on the District Court scale.  I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.