HARDEV SINGH v. TSANG KAM WAN

HCPI 906/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 906 OF 2014

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J U D G M E N T

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INTRODUCTION

1.  On 5 November 2011, at 10:20 pm the plaintiff was returning home driving a motorcycle provided by his employer.  When he came to Lai King Hill Road, the defendant who was driving a taxi then made a sharp U‑turn.  The plaintiff ran into the taxi and was injured when he fell off his motorcycle (“the Accident”).  It was the plaintiff’s case that the Accident was caused by the negligence of the defendant.

THE ISSUES IN DISPUTE

2.  This action was brought to recover the loss and damage of the plaintiff suffered in the Accident. Liability had been admitted.  This is the assessment of his damages.  According to the Revised Statement of Damages, the plaintiff claimed –

PSLA	HK$275,000.00
Pre-trial loss of earnings & MPF	HK$644,895.21
Future loss of earnings	HK$1,788,750.81
Loss of earning capacity	HK$100,000.00
Future medical expenses	HK$32,000.00
Special Damages	HK$10,441.00
Total =	HK$2,851,087.02
Less EC	-HK$345,414.66
Net claim =	HK$2,505,672.36 and interest

3.  The special damages had been agreed by the defendant.

4.  And before the hearing, Ms Cheng, counsel for the plaintiff corrected the claim for pre-trial‑loss of earning and MPF to HK$708,808.82, to take into account the loss during the waiting time for this assessment.

5.  Ms Cheng also sought to claim future loss of earnings based on a multiplier of 19.31 in her written submission.  The multiplier pleaded in the Revised Statement of Damages was 15 and had been agreed to by the defendant.  Having some further consideration, Ms Cheng retained the original claim to assess the future loss with a multiplier of 15.

6.  The quantum for loss of earning capacity was agreed to by the defendant, which Mr Lai, counsel for the defendant agreed to pay if I found no award for loss of future earnings.

7.  The major dispute between the parties was the recovery of the plaintiff after treatment, in particular whether he would be able to resume his pre­-accident jobs, and if so, when. 

CLINICAL TREATMENT AFTER THE ACCIDENT

8.  After the Accident, the plaintiff was taken to Princess Margaret Hospital (“PMH”).  Examination revealed abrasion wound over left shoulder, right knee, right shin, left shin and swelling over right wrist. X-ray revealed fracture right distal radius and ulnar styloid.  The orthopaedic department of PMH applied short arm slab and the plaintiff was discharged on 7 November 2011.

9.  The plaintiff was re-admitted to PMH for an operation, namely open reduction and internal fixation.  He was discharged on 16 November 2011.

10.  The plaintiff received 10 sessions of physiotherapy treatment at PMH, including wax therapy, strengthening and mobilization exercises to his right wrist.  He was discharged from physiotherapy treatment on 20 April 2012.  Later, he was referred to the occupational therapy department of PMH for further rehabilitation.

11.  On the treatment received by the plaintiff after the accident, a number of reports prepared by the treating doctors had been produced.  I would refer to paragraphs 16 to 44 of the joint orthopaedic report prepared by Dr Lam Kwong Chin and Dr Lam Chi Keung, Johnson dated 14 September 2015 which neatly summarised the treatment received.  I would not repeat all the paragraphs and would refer to the material paragraphs later.

12.  The said orthopaedic expert report had been adduced with leave of Court and without calling the experts.  I would come to the details of their opinion hereinafter.

13.  The plaintiff had also been assessed by the Employees' Compensation (Ordinary Assessment) Board.  The loss of earning capacity caused by the fractured right wrist was assessed at 1.5%. Sick leave from 5 November 2011 to 29 July 2012 and 31 July 2012 to 8 August 2012 was certified as necessary.

THE PLAINTIFF'S EVIDENCE

14.  There was only one factual witness in this assessment, the plaintiff himself.  The defendant had no factual witness save that by consent, a surveillance video and the report thereto were produced in Court which I would deal with separately.

15.  According to the plaintiff, he was born in India on 19 June 1978, and was 33 at the time of the accident, and 38 at the assessment.  Before the accident, the plaintiff had two jobs daily.  He had been working as a construction site worker during day time with Law Chi Yip Construction Co Ltd since 4 May 2010.  His working hours were from 8 am to 6 pm. 

16.  According to the confirmation letter dated 13 October 2010 from the said Law Chi Yip Construction Co., Ltd, the plaintiff had been employed as a general labour by the company since 4 May 2010 and his salary was HK$450 per day. According to a number of pay slips disclosed, his daily wage had been gradually increased. For October 2010, the plaintiff was paid HK$500 per day.  It was also apparent from the pay slips disclosed in the Assessment Bundle that the plaintiff had had overtime pay from time to time. The average monthly pre-accident earning of the plaintiff at the construction site was HK$12,544.29 and MPF and the figure was admitted by the defendant.

17.  At the construction site, the plaintiff said he was required to lift and carry cement bags, perform drilling work, shoveling, going up and down scaffolding.  The plaintiff also said in evidence that he had to operate heavy equipments such as pneumatic breaker.

18.  According to the evidence of the plaintiff, he was also employed by Dial-A-Dinner Ltd as a part-time food delivery worker on a motorcycle.  His monthly earning was HK$8,320 and his working hours were from 6:30 pm to 10:30 pm during weekdays and on weekends.  His duties involved driving a motorcycle of the company to deliver food from different restaurants on Hong Kong Island. When delivering food, the plaintiff said he had to climb up and down staircases and deliver the same on a tight delivery schedule.  The pre-accident monthly earning as a part-time delivery worker was also admitted by the defendant.

19.  The plaintiff was granted sick leave from 5 November 2011 to 29 July 2012 and 31 July 2012 to 8 August 2012.

20.  The plaintiff complained of on and off pain over his right wrist after the injury.  The pain could be triggered when lifting heavy objects over 10 kg in weight with his right hand.  He also had difficulty in making a full grip of right hand.  The right wrist pain was worse in cold and wet weather.

21.  And because of his right wrist pain, the plaintiff said he could not return to work in the construction site. On examination by Ms Cheng, he said the shovel was heavy.  He could not carry heavy object or operate the machine in the construction site.  And he had an implant inside his wrist and could not twist his hand.

22.  When being cross examined, Mr Lai referred to the joint expert report and noted that the experts recorded the plaintiff had complained that he could not close his fingers.  The plaintiff explained that he meant he could not have a firm grip.  In Court he demonstrated how he closed his fingers which was quite normal.

23.  When being cross-examined if he had complained to the experts that he felt pain when lifting 1 kg (as stated in the joint orthopaedic expert report), he said he only said over 1 kg and did not know why the experts recorded 1 kg.  He was referred by Mr. Lai to his own witness statement when he said he felt pain when lifting 10 kg.  He repeated that he told the doctor he had pain when carrying over 1 kg, and he could not carry 10 kg.

24.  It was agreed by the plaintiff that his former employer Law Chi Yip Construction Co Ltd did not dismiss him. The plaintiff said he was asked to stay at home.  He was told that if he got injured, who were to pay him.  He was told to rest until he was ready.

25.  He claimed that he had been advised by the occupational therapist to do light job like security guard.  On 26 July 2012, before the expiration of his sick leave period, the plaintiff worked as a security guard with New Prosperity Facility Management Limited.  His average monthly wage was HK$8,700.00, working from 7 pm to 7 am. He quitted the job on 14 January 2013.

26.  On 22 January 2013, the plaintiff began to work as a security guard for New Gem Property Management & Agency Limited with an average wage of HK$8,700 per month.  He had to work from 7 pm to 7 am.  He quitted the job on 12 December 2013.

27.  On 12 February 2014, the plaintiff started working as a packing worker.  His basis salary was HK$8,300.00 per month and was increased to HK$9,300.  With attendance allowance and overtime earning, his monthly earning was HK$11,400 per month.  His working hours were from 10 am to 7 pm and he was still working in this post.

28.  For the part time job as a food delivery worker, he said he could not return to work.  He could not drive the motorcycle because of right wrist pain.  When giving evidence, the plaintiff explained that he could not hold a firm grip of the cross bar of the motorcycle and he had difficulty in pushing a motorcycle.  Hence he could not return to work as a delivery worker. 

29.  The plaintiff was referred to the medical report by the physiotherapy department of PMH which recorded that in April 2012, the range of movement of his wrist was full.  Mr. Lai put to him that he could twist his right wrist since then.  The plaintiff disagreed.  He was also referred to the record of PMH which shew that he had not mentioned of his problem of his right hand grip.  The plaintiff repeated his claim of weak grip.

30.  While the plaintiff claimed that he could not ride a motorcycle, he had not attended any test by Transport Department until April 2016.  As at the time of this assessment, there was no result from the Transport Department.  He said he was told that he should not ride a motorcycle and further test would be conducted in end of August 2016.  But he admitted on cross examination that his driving licence had not been revoked.

31.  By consent of the parties, a letter from the Transport Department had been produced.  It only mentioned of an Approval Letter and confirmed that they were waiting for medical report.

32.  When asked why he had not attempted other part time job, the plaintiff said his day time job required him to work overtime.  He was referred to his work before accident with Law Chi Yip Construction Co. Ltd. which also required him to do overtime work.  

33.  He did not have to work on Saturday and Sunday.  When Mr Lai suggested to the plaintiff that he could at least do light duties, for part time work at night and on Saturday and Sunday such as gas station attendant, the plaintiff said he could not handle it because he could not speak English or Cantonese.  On further cross examination, he agreed that he could read some English, including the instruction when he was working as a delivery worker, and he could speak some Cantonese.

34.  The plaintiff also said in his witness statement that he had satisfactory health prior to the accident.  He used to enjoy playing various ball games for exercise but had stopped since the accident due to persistent pain.

THE SURVEILLANCE REPORT AND VIDEO

35.  Before the cross examination, Mr Lai played some surveillance video in Court.  It was not disputed that the person recorded was the plaintiff.

36.  The video showed that the plaintiff was walking in normal gait with normal wring of arms.  He could use his right hand to perform various actions, such as handling mobile phones, opening refrigerator door, handling money and arranging bags. He was seen carrying beverages and in one scene he was holding 2 bottles of drinks in his right hand.

37.  When cross examined, Mr Lai put to the plaintiff that his right hand was quite powerful.  The plaintiff disagreed and repeated that he could not twist his wrist and could not ride the motorcycle.

38.  There was no scene of the plaintiff riding motorcycle or carrying heavy objects.  But there was record that the plaintiff was holding up his daughter in his arms, and putting her down. 

39.  When asked, the plaintiff said her daughter was about 20-22 kg in weight.  The plaintiff claimed that his daughter was tired and he helped her up with his arms.  He did not use his hand.  When being cross examined further on this issue, the plaintiff explained that he used his left hand and right arm to bring up the child to his chest.  When he let her down, he did it the same way. 

40.  Mr Lai also referred to the joint medical report.  When the plaintiff said he had difficulty to pick up his daughter of 20-22 kg, it was inconsistent with the finding of the experts.  The plaintiff said it would be difficult to hold her for a whole day, if no rest was provided.

41.  This would be a convenient junction to refer to the joint medical reports.

THE JOINT ORTHOPAEDIC EXPERT REPORT

42.  The experts had examined the plaintiff and had been shown the video.

43.  The two experts had summarised the reports from treating doctors and clinic and this part of the report was agreed between the experts.  At paragraph 23, reference was made to the report from PMH dated 15 February 2012 when it was recorded that the plaintiff had residual right wrist pain. But it was also recorded that his right wrist active range of movement was almost full.

44.  The plaintiff complained to the experts that he had on and off right wrist pain, which worsened with lifting weight of even 1 kg, and at cold temperature.  He could not sleep on right side and had to take painkiller daily.  He also complained of limited wrist extension.  He could not close the finger, and suffered a weaker handgrip.

45.  The experts found no small muscle wasting or claw hand on his right hand.  The right hand had normal sensation and with satisfactory and symmetrical finger movement.  It was obvious that the experts had paid attention to complaint of the plaintiff about his right wrist.  There were 2 tables in the report on the mobility of his right wrist which were telling.  First, the expert found that the right wrist of the plaintiff had no gross external deformity or swelling.  On movement, they had a table of finding –

Wrist movement	Right	Left
Supination	80 degree	80 degree
Pronation	70 degree	80 degree
Extension	40 degree	70 degree
Flexion	50 degree	60 degree
Radial Deviation	10 degree	20 degree
Ulnar Deviation	30 degree	40 degree

46.  It could be noted that the range of movement of both wrist was quite similar.  And the experts had referred to various reports from treating doctor and set out a table as follow sshowing the condition of the wrist at different stages -

	Flex	Extend	Supine	Pronate
8/2/12	Almost full				8
15/2/12	Almost full				Residual pain
28/3/12	Almost full				pain°; 18
20/4/12	60°	70°	✓	✓	pain°; 21
9/5/12	50°	50°			16 kgf
9/5/12	40°	40°	80°	80°
11/6/12	50°	50°			14 kgf
20/6/12	45°	45°	80°	80°	Mild tenderness
11/7/12	50°	50°			14 kgf
18/7/12	50°	50°	80°	80°	Residual pain
26/7/12	50°	50°			Pain when movement

47.  They agreed that the plaintiff had a satisfactory progress.  Dr. Johnson Lam added that some weakness and pain had been reported.  Some residual pain and impairment was expected.

48.  X‑ray showed that the fracture had healed in satisfactory bony alignment.  The experts agreed that the plaintiff had a satisfactory yet incomplete functional recovery from the fracture.

49.  Dr Johnson Lam opined that the implant was still palpable.  This could cause discomfort.  (There was originally a claim to remove the implant.  Since the plaintiff did not plan to remove the implant, the claim for further medical expenses to remove the implant was abandoned.)

50.  On working capacity, Dr K C Lam opined that “with the excellent bony alignment achieved, [the plaintiff]’s wrist is expected to have better motion and power, probably at a magnitude equal to uninjured. ….He should be able to return to his pre-injury work as a construction site general labourer and motocycle delivery driver.  He might have some reduction in endurance due to the residual wrist symptoms, but the adverse influence should be mild and would improve gradually with time.”

51.  Dr Johnson Lam opined that “[the plaintiff] suffered from rather serious injury to his right wrist.  ….the evidence available suggested that the fracture was well fixed, and had eventually healed rather uneventfully…..Dr Johnson Lam opines that it is likely that despite satisfactory union of the comminuted, intra-articular fracture of right distal radius, significant residual pain and impairment is probable.”

52.  But Dr. Johnson Lam further commented that “considering the findings at this assessment, and the footage of the DVD recording (e.g. can carry a child; can carry drinks), it is unlikely that the residual pain was as severe as [the plaintiff] alleged (e.g. wrist pain worse with lifting weight of 1 kg; could not close fingers).” 

53.  Dr Johnson Lam estimated that the degree of residual pain and impairment was mild-to-moderate.  He opined that activities that cause increased stress to right wrist, such as prolonged or heavy exertion, say, in making a strong handgrip, heavy lifting, say, over 30 kg, handling heavy tools such as pneumatic breakers could cause discomfort or even pain in the right wrist.  On the other hand, the plaintiff was independent in activities of daily living.

54.  It was noted that the plaintiff had informed the experts of his difficulty in driving, including persistent right wrist pain and decreased right hand grip.  Dr Johnson Lam was aware that the plaintiff had to occasionally push or pull the motorcycle of less than 100 lbs during parking.  He was still of the opinion that the plaintiff could return to work as a food delivery worker on motorcycle. 

55.  And regarding his day time job as a construction site worker, Dr Johnson Lam opined that with more self exercises to strengthen the right hand and wrist, and a gradual return-to-work program for adaptation, the plaintiff could return to his work at construction site with reduced capacity, e.g. some difficulty in handling very heavy weight say over 40 kg, pneumatic breaker, and would need more breaks for rest.

DISCUSSION AND FINDING

56.  The injury of the plaintiff was not in dispute.  The main dispute was his recovery.  This issue would affect the claim for PSLA and loss of earnings.  I would first deal with this issue.

57.  According to both experts, the plaintiff could return to work as delivery worker on motorcycle and as construction site general worker.  It was the complaint of the plaintiff that he had problem with his right wrist and right hand grip that he could not return to work in the construction site and to drive.  I noted the experts had recorded the treatment records of the plaintiff to show his range of movement.  It was obvious that they had paid particular attention to the range of movement of the right wrist before they made their conclusion.

58.  Ms Cheng drew my attention to the finding in the report that there were mildly thinner right forearm muscles.  The implant would create discomfort.  There was lesser right wrist movement when compared to the left wrist.  And Dr Johnson Lam opined that some permanent residual pain and impairment was expected.  I was aware of these comments.  They would amount to mild reduction of working capacity.  Dr. K C Lam interpreted these as mild adverse influence and the plaintiff could return to work as construction site general worker AND motorcycle delivery driver.  And as Dr Johnson Lam observed, with more self exercises to strengthen the right hand and wrist and gradual return-to-work program for adaptation, the plaintiff would be able to gradually return to his pre‑accident job as construction site general work, AND he could return to work as a food delivery worker on motorcycle. 

59.  The plaintiff said he had weak grip.  But when he was inspected by the experts, he told them that he could not close his fingers.  This was clearly exaggeration.  He could close his fingers.  But about the power of his grip, the video showed that he could hold 2 bottles of soft drinks with his right hand, at the same time.  His claim of weak grip was not credible and indeed both experts did not believe his claim.

60.  I also noted from the joint report that the plaintiff said his pain worsen when lifting weight of 1 kg.  This was different from his witness statement.  He had sought to explain that in cold weather, he felt pain.  I did not believe his explanation. 

61.  There were 2 major discrepancies, on the weight he could lift and whether he could close his fingers, from the information he gave to the experts and from his evidence.  I found the plaintiff was changing his evidence to cover up these discrepancies.

62.  It was also obvious from the video that he could easily hold up his daughter.  His explanation that he had to use his left hand and right arm was not credible.  It was obvious that he had normal strength and a reasonably strong grip.

63.  I did not believe the evidence of the plaintiff that he could not return to work in construction site.  I accepted the opinion of the experts and found that the plaintiff could return to work in the construction site AND a delivery worker on motorcycle.  I accepted their comment that the plaintiff had some reduction in working capacity, and he might have problem to handle the pneumatic breakers, or carry heavy object.  But it should not be forgotten that he was a general worker at the construction site.  I would be surprised he could not return to work as a general worker.  His daily wages of HK$500 indicate that he was not a skilled worker.

64.  Further, there was no evidence to show that he could not drive a motorcycle.  Both experts had paid special attention to his wrist and his overall strength.  And both experts had commented that he could return to work as a delivery worker on motorcycle.  I accepted their assessment. 

65.  And the evidence showed that he was still having a driving licence and notwithstanding his recent examination, it had not been cancelled.  The burden rested on the plaintiff to show that he could not drive.  I found he was not a credible witness and I did not believe his evidence.  I was not satisfied on the evidence before me that he could not drive.  He should be able to return to work as a delivery worker on motorcycle.

66.  And according to both experts, the sick leave the plaintiff received up to 8 August 2012 was appropriate.  While this Court was not bound to accept the assessment of the treating doctor, the certificate would be a strong indicator that from the view of the treating doctors the plaintiff could return to work after the sick leave.  This was endorsed by the experts and I accepted their assessment.

67.  And in any event, the plaintiff had no credible explanation why he had not worked part time after recovery.  There was no complaint that he was physically incapable to do any part time work.  The plaintiff had the duty of mitigation and he had not attempted any additional part time work.  His explanation on his language problem was not reasonable as he could handle the job as a delivery worker before the accident, when he had to read the instruction in English.  He would be able to communicate with customers in either English or Cantonese.  Admittedly, he could speak some Cantonese.  He had made no effort to look for part time work.

PRE‑ASSESSMENT LOSS OF EARNINGS & MPF

68.  The plaintiff claimed a total of 58 months’ loss of earnings, less the salary he did receive during the same period.

69.  It was not disputed that the plaintiff had sick leave from 5 November 2011 to 29 July 2012 and 31 July 2012 to 8 August 2012, a total of 9.1 months.  The defendant agreed to pay full compensation for this period of time.

70.  Shortly before the end of the sick leave period, the plaintiff had commenced working as a security guard on 26 July 2012 with earnings of $8,700 per month for 17 months. It was the case of the defendant that the plaintiff should be about to return to work in the construction site and as delivery worker 2 months after the sick leave, i.e. in around early October 2012, allowing a total of recovery period of 11.1 months.  The plaintiff should be awarded loss of earnings for these 11.1 month but any earnings in these 11.1 months should be deducted.  And there should be no further allowance of loss of earnings.  According to the calculation of Mr Lai, the loss for this period was HK$[(12,544.29 + 8,320) x (9.1 + 2)] x 1.05 = HK$243,173.30.  After deducting the earning from 26 July 2012 to 8 October 2012, HK$(8,700 x 2.5) x 1.05 = HK$22,837.50, the pre-trial loss of earnings should be HK$220,335.80.

71.  From the evidence as analysed above, I found that the plaintiff should be about to return to work after the sick leave.  The additional recovery period suggested by the plaintiff of 2 months was acceptable.  But I would also take into account the opinion of Dr Johnson Lam that the plaintiff should return to the work at the construction gradually.  I could safely allow some time for the plaintiff to return to work gradually.  I would be prepared to allow a reasonable period of 3 months when the plaintiff should be allowed to gradually return to work, and which it could be anticipated that he would receive a reduced earning.  And for these 3 months, I would treat his earning as security guard as the earning he could receive had he started working in the construction site and delivery work.  The loss for this 3 months would be HK$[(12,544.29 + 8,320) x 3 x 1.05] – (8,700 x 3 x 1.05) = HK$38,317.51.

72.  As from January 2013, the plaintiff should be about to return to his pre-accident work.  There should be no award for further loss of earnings.  And his total pre-assessment loss of earnings would be HK$(220,335.80 + 38,317.51)= HK$258,653.31.  And there be no loss of future earnings.

PSLA

73.  I repeated the injuries and the treatment as set out above.  For record, the injuries (except his ability to return to work) and treatment are not in dispute.  And I did not have to repeat my findings above on his working capacity.

74.  The plaintiff claims HK$275,000 for PSLA.  Ms Cheng referred me to a number of decision including Chiu Mo Yuen v. James Equipment Limited and others HCPI 179/1998, Yip Mau Leung v The University of Hong Kong HCPI 542/1999, Ho Chung Ping v Yue Hin Engineering Company HCPI 1025/2004, and Leung Hon Kit v Wong Po Hing HCPI 420/2013.  She relied specially on Chiu Mo Yuen’s case when the plaintiff suffered from fracture of left distal ulnar radius with laceration to his left palm.  The fracture healed uneventfully but he complained of persistent writs pain.  PSLA was assessed at HK$275,000.  And for the Leung Hon Kit’s case, the plaintiff had a fractured right distal radius and ulnar styloid.  Closed reduction was done.  The fracture healed with deformity, there was residual pain and stiffness, as well as diminished range of motion of the right wrist. PSLA was awarded in the sum of HK$280,000.  Ms Cheng submitted that a reasonable award to the plaintiff in our case should be HK$275,000.

75.  Mr Lai referred me to Yu Yixin v Leung Chi Tin Andy DCPI 1306/2007, and Mehmood Khalid v Million Harvest Wharves & Logistics Limited HCPI 401/2006.  He particularly referred to the Mehmood’s case when the plaintiff suffered a wrist fracture that could not be treated by a plaster cast and required surgery with external fixation, which was said to be “undoubtedly a distressing and uncomfortable experience”.  The plaintiff continued to suffer from pain or exertion and in cold weather.  PSLA was awarded at HK$200,000.

76.  Having considered the submission and all the cases referred, I considered that the injury suffered by the plaintiff was less severe than the cases quotted by Ms Cheng. I found that a reasonable award would be HK$230,000.

LOSS OF EARNING CAPACITY

77.  The defendant agreed the sum of $100,000 as claimed for loss of earning capacity if I made no award for future loss of earning.  I made the award accordingly.

78.  In summary, the awards are -

(a)	PSLA	$230,000
(b)	Pre-assessment loss of earnings	$258,653.31
(c)	Future loss of earnings	$0
(d)	Loss of Earning Capacity	$100,000
(e)	Special damages	$10,441
		$599,094.31
	LESS DCEC award	$345,414.66
	TOTAL :	$253,679.65

79.  There be interest on general damages at 2% per annum from the date of writ to the date of assessment.  On pre-trial loss of earnings and special damages, there be interest at half judgment rate from the date of accident to the date of assessment.

80.  And there be order nisi that the plaintiff do have costs of the assessment (including all cost of assessment reserved) to be taxed at District Court scale with certificate for counsel. The order nisi shall become absolute within 14 days from today.