LAMA KALPANA v. NEPALESE FRIEND INT’L MANPOWER SERVICES LTD AND ANOTHER

HCPI 721/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 721 OF 2007

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BETWEEN

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J U D G M E N T

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Background

1.  At the material time, the Plaintiff was employed by the 1^st Defendant as a cleaner working at a construction site known as KCRC East Rail Extensions Project, Contract HCC 300, Concourse Level, TST, Kowloon (“the said Site”). On 27 August 2004, at about 1500 hours, the Plaintiff was working at the said Site and was instructed by a foreman of the 2^nd Defendant to remove a hook fixed on a wall inside Room C26 at the said Site.

2.  The Plaintiff used an aluminum ladder to climb up to work at a position of about 2 meters from the floor. She fell onto ground and suffered injuries.

Her Injuries and Treatment

3.  After the accident, the Plaintiff was taken to the Accident and Emergency Department of Queen Elizabeth Hospital (“QEH”) for treatment. According to the medical report of Dr. Lee Fong Lun of QEH dated 5 July 2006, the Plaintiff suffered from tenderness over back. X-ray of pelvis and lumbo-sacral spine showed anterior wedging of L1. The clinical diagnosis was fracture of L1. Follow-up treatment was given by QEH from September 2004 to June 2005. She was referred to Department of Orthopaedic and Traumatology of QEH on 7 June 2005, when she complained of problem for walking more than 20 minutes. According to the report of Dr. Chin Ping-hong of QEH dated 5 February 2007, which I would come back later in details, hefound physical signs incompatible with true physical cause of back pain. The Plaintiff was referred for physiotherapy treatment.

4.  According to the report of Mr. Steven Siu of the Occupational Therapy Department of QEH dated 15 February 2007, the Plaintiff received 6 sessions of treatment in his department. And further, Plaintiff received treatment from the Physiotherapy Department of QEH. According to the report of Ms. Angela Ling Wai Mun of the Physiotherapy Department of QEH, the first session of treatment was in November and December 2004. The Plaintiff was discharged from treatment in January 2005 with home exercise.

5.  The Plaintiff received a second treatment from the Physiotherapy Department of QEH on 25 January 2005. She still complained ofstretching pain over the whole back region. The sitting and standing tolerance were limited to 20 minutes because of the pain. A course of back conditioning training to improve her physical condition together with hot pad and pulsed magnetic field therapy were given. After 6 sessions of treatment, the trunk movements were limited with pain. According to Ms. Ling, there were inconsistent physical findings observed. There were also positive findings in Waddell’s signs. The Plaintiff was discharged.

6.  The Plaintiff was referred to out-patient physiotherapy on 7 June 2005. The Plaintiff complained of severe pain over her back. On objective examination, the active trunk movement was limited by pain, especially in extension movement. Transcutaneous electrical nerve stimulation and hot pack were prescribed for symptom relief. On re-assessment on 22 June 2005, there was temporary relief of the Plaintiff’s symptoms after treatment. Her back extension movement was limited by pain. According to Ms. Ling, the Plaintiff could walk independently without aid for an hour and sitting for about 30 minutes. The Plaintiff defaulted treatment since 29 June 2005.

7.  Sick leave was granted by QEH from 3 September 2004 to 7 June 2005.

The Claim

8.  The Plaintiff issued these proceedings to recover her damage and loss resulting from the injuries. Liability was admitted by the Defendants and interlocutory judgment entered against them, by consent, on 8 January 2008 with damages to be assessed. The assessment was fixed before me.

9.  In the Amended Statement of Damages dated 3 September 2007 prepared by the Plaintiff’s then solicitors, the Plaintiff claimed the following heads of damages: -

(a)	PSLA	$250,000
(b)	Pre-trial loss of Earning	$207,400
(c)	Post trial loss of Earnings	$652,800
	post-trial	$32,640
(e)	Loss of Earning Capacity	$100,000
(f)	Medical expenses	$7,538
(g)	Travelling expenses	$450
(h)	Over-the-counter-medication	$5,000
(i)	Interest	to be assessed

10.  The claim is contested by the Defendants. The Defendants disputed the monthly earning of the Plaintiff. The Defendants also disputed the seriousness of the injury and stated that the damages for PSLA should be $100,000. The Defendants also submitted that the Plaintiff could return to her pre-accident work and the award for loss of earning should be substantially reduced. I shall come to these disputes in greater details.

11.  The Plaintiff is legally represented for most of the time in this case. All pleadings including the Amended Statement of Damages and her witness statement were prepared by her then legal advisor. Leave had been granted for medical reports, including the reports by her treating clinic and hospital and the joint medical report of Dr. Jack Wong and Dr. Danny Choi dated 13 March 2008, be adduced without calling the makers. An assessment bundle had been agreed. She is unrepresented at the assessment. The Plaintiff gives evidence at the trial.

The Working History of the Plaintiff

12.  The first issue in dispute is the monthly earning of the Plaintiff. The Plaintiff claimed that she worked 26 days a month on the average and thus earning $8,400 per month. This is disputed by the Defendants who said her earning is no more than $6,200.

13.  The Plaintiff is a lady of Nepalese nationality. She was born on 25 July 1979 and is a permanent resident of Hong Kong. According to her witness statement dated 12 March 2008, she first came to Hong Kong in 1997 and her first job was a kitchen helper in an Irish Pub where she worked for 11 months earning $9,000 per month. After that, she worked in a company as a receptionist earning $7,000 to $8,000 per month. Since 1999, she started working in construction sites as a cleaner. Her wage started at $280 per day and increased to $300. She said in her statement that she worked 28 days a month. That is the basis of her claim for earning $8,400 a month.

14.  On 9 July 2004, she joined the 1^st Defendant earning $350 a day and said she worked 26 days on average. Her job was to remove concrete, heavy metals and debris from the underground construction site to collection points.

15.  The Defendants have served interrogatories on the Plaintiff asking for details of her employment history. In the Affirmation of the Plaintiff dated 29 April 2008, the Plaintiff gave a slightly different picture of her employment history.

16.  She worked in Hong Kong in 1998 as a kitchen helper for a month in La Pazita when a friend went on leave, with a monthly salary of about $8,000. In late 1998, she worked at East Ocean Seafood Restaurant as a general helper earning about $6,000 per month. She worked for 10 to 11 months. She resigned because of low pay and long working hours.

17.  In 1999, she worked in a coffee shop as a waitress earning $7,500 per month. She worked there for 2 months. She resigned being uncomfortable with the environment.

18.  Then she worked for Manpower in Tsimshatsui as a receptionist for 2 months. She resigned because she was not satisfied with her salary.

19.  In January 2001, the Plaintiff started working for Hyundai Construction Co. Ltd. doing general labour work. She was paid $300 a day and she worked about 50 hours a month. She resigned after 4 to 5 months for home visit.

20.  In May 2001, the Plaintiff worked for Katmandu Restaurant as a waitress earning $7,500. She resigned after one month, as she was pregnant.

21.  In or about August 2003, she started working for Chun Wo Construction Company as a casual worker earning $350 a day. She only worked for 2 weeks, as this is a temporary job.

22.  In late 2003, she worked in an Irish pub in Tsimshatsui as a kitchen helper earning $6,500 per month. She worked for 3 months, as she did not want to work odd hours which conflict with her family life.

23.  And in May 2004, she joined a construction company as a casual worker earning $350 per day. She worked for about a month.

24.  And on 9 July 2004, she joined the 1^st Defendant.

25.  Pausing here, it appears from her employment history as set out in her answer to the Interrogatories that she worked for most of the time as a kitchen helper. And I note that she changed jobs very often and there were long breaks between her jobs. And her recorded earning was around $7,000 to $8,000 per month. This has a bearing on my assessment on her income.

26.  Given that the Plaintiff started working for the 1^st Defendant on 9 July 2004, and she had an accident on 27 August 2004, she had been working for the 1^st Defendant for a relatively short period of time. It is agreed that her daily wage is $350, plus overtime pay. From the record produced by the 1^st Defendant, which is not disputed, the Plaintiff worked 13 days in July and 22.5 days in August, earning a total of $12,142.00. Defence Counsel Mr. Gidwani submits that the average earning of the Plaintiff is therefore $6,200.

27.  Given the short period of employment by the 1^st Defendant, I would say that solely relying on the earnings with the 1^st Defendant to assess the income of the Plaintiff is unfair. I would start with $350 per day which appears to be her possible earning per day before the accident.

28.  The Plaintiff seeks to compare her future earning, had she not been injured, with other workers employed by the 1^st Defendant. But she has no evidence to support that other workers in the same position could work 29 days or 26 days a month. From the answer she gave to the interrogatories, she had resigned on a number of occasions because she could not stand for long working hours. I would be surprised that she would change her pattern of working. I do not believe that she would work 26 days a month.

29.  In the last month of employment with the 1^st Defendant, she worked 22.5 days. Given her history of employment, I believe this would more correctly reflect her number of days she is willing to work a month. Taking into account she had some over-time pay, I assess her earning at $8,000 per month for assessing her loss.

Evidence on the Plaintiff’s Injuries and Treatment

30.  The Plaintiff claims that as a result of the accident, she cannot resume her pre-accident work and have relied on social assistance. I would look into her injury and treatment.

31.  It is the Plaintiff’s evidence that after the accident, she was taken to the Accident and Emergency Department of Queen Elizabeth Hospital for treatment. At the hospital, she was diagnosed with tenderness over back anterior wedging and fracture of L1. She was given sick leave up to 16 August 2005. I have set out the details herein before.

32.  Despite the treatment, the Plaintiff said she still have the following disabilities: -

(a) Persistent upper and lower back pain and such pain becomes severe during cold and humid weather;

(b) Reduced walking tolerance for not more than 30 minutes (on painkillers);

(c) Limited extent of movement of the back;

(d) Cannot run or jump;

(e) Some difficulty in climbing up and down stairs;

(f) Pain also interfere her sleep.

33.  Due to persistent back pain, she could not find a new job even with lighter duties. She could not resume her pre-accident work and has to rely on social assistance to support her living. She is still unemployed and is living in Hong Kong with her son, and she received $7,400 per month from CSSA. I note that according to the Amended Statement of Damages, her loss of further earnings is calculated on the basis that she should take up lighter job as from 26 January 2006 earning about $5,000 per month.

34.  The Plaintiff was granted sick leave from 27 August 2004 to 2 August 2005. The Defendants accept the sick leave period is reasonable, and only dispute her earnings. But the Defendants claim that the Plaintiff could return to her pre-accident work after the sick leave and thus suffer no further loss of earnings.

35.  The Plaintiff claims that as a construction site cleaner for the 1^st Defendant, she was required to engage in physically demanding work for long hours. She was frequently required to work in bending, stooping and awkward postures. It is claimed that she could not return to work as a construction site cleaner.

36.  Defence counsel put to the Plaintiff that she was a cleaner. But the Plaintiff repeated that she had to carry heavy debris. I believe it is foreseeable that a construction site worker had to carry some debris of some weight. And in assessing her recovery, I also read the medical report.

37.  The Plaintiff was jointly examined by Dr. Jack Wong and Dr. Danny Choi, both orthopaedic experts. Dr. Jack Wong was nominated by the Plaintiff. The joint medical report by the doctors dated 13 March 2008 makes the following comments –

“ 80. Dr. Wong believes that the symptoms are consistent with the injury and are genuine, however the symptoms should not be severe. Dr. Tsoi believes that [the Plaintiff] was exaggerating her symptoms. The alleged degree could not be explained by the injury she sustained and were not consistent with the objective finds.

81. Our examination revealed pain, tenderness, guarding and mild stiffness of middle back at the fracture site. There was presence of inappropriate signs. The pain and tenderness appears more severe than what they were expected.

82. X-ray revealed healed fracture of L1 vertebra with about 27% loss of anterior height.

83. We agree that clinical and radiological findings were consistent with a healed fracture of L1 with mild residues.

84. [The Plaintiff] also complained of swelling over both legs for few months, and swelling of right wrist and hand for few days. We agree that they were not related to the accident.”

38.  It is obvious that Dr. Tsoi is of the view that the Plaintiff has exaggerated her pains. While Dr. Wong believes the symptoms are genuine, but he comments that the symptoms should be severe. Both experts opined that the Plaintiff should be able to resume her pre-accident occupation as a casual worker in construction site but with slight reduction in capacity, efficiency and endurance. She may have some back pain or discomfort when she carries or bends excessively, she should rest at intervals to relieve pain.

39.  The Plaintiff also submitted that the experts were influenced by a surveillance video, which was also the evidence in Court. A careful reading of the report shows that the expert arrived at their opinion by their own analysis. They did refer to the tape stating that it confirms their opinion. I do not believe such reference affects the independent view of the experts.

40.  The Plaintiff could not point to any mistake in the report that suggests the opinions of the experts are not reliable. It is the joint opinion of 2 orthopaedic experts that she could return to pre-accident work after examination. I see no reason to doubt their view.

41.  Pausing here, I have viewed the video. The Plaintiff did not deny that she appears in the video. It shows that the Plaintiff could walk with a normal gait. She appears to walk with no pain, and leisurely around the neighbour of her home.

42.  The Plaintiff also challenged the genuineness of the video. She submitted that the first day of report could not be on 3 May 2005 as the surveillance company was only instructed on 27 May 2005. There is a date on the video and the first day of video appears to be 30 May 2005. I could safely assume that the reference to 3 May 2005 in the surveillance report is a typing mistake.

43.  The Plaintiff also points out that there are time gaps in the video. The Plaintiff complained that the tape has been edited. She said that there were moments when she felt difficult and painful while walking, such parts had been deleted. I have to agree with the Plaintiff that the video is not a continuous tape and there are some short intervals missing. But there aremany complete durations of 4 to 5 minutes showing her walking position.

44.  And at one scene, she has been recording walking up the stairs. There appears to be no difficulty in climbing the stairs. This is not denied but the Plaintiff said the video only records that she walked about 4 steps. It can be seen from the video that there are more than 15 steps. And I could see her climb, with no obvious difficulty and in speed of a normal person, climbed to the last 2 or 3 steps.

45.  I have great doubt on the evidence of the Plaintiff on the effect of her injury, in particular that she could not walk or climb stairs.

46.  And more, Dr. Chin Ping Hong of Queen Elizabeth Hospital in a medical report dated 5 February 2007 also doubted the claim by the Plaintiff on her ability to walk. Dr. Chin recorded that the Plaintiff complained of back pain and had problem walking for more than 20 minutes. He examined the Plaintiff and found physical signs incompatible with true physical cause of back pain. The Plaintiff’s MRI imaging did not show any finding compatible with the pain she presented to him.

47.  There are evidences to support the Defendant’s case that the Plaintiff could return to her pre-accident work. That left with the Plaintiff’s own evidence that she cannot return to her pre-accident work. I found that the Plaintiff is not a reliable witness. She is swerving in her case on her monthly earning. And the video clearly shows that she has exaggerated on her injury. Taking all these evidence into consideration, I found that the Plaintiff failed to prove that she suffered from such injuries and pain that prevent her from returning to her pre-accident work. I concluded that the Plaintiff should be able to return to work as a construction site cleaner after the sick leave period.

PSLA

48.  With these 2 issues determined, I would proceed to rule on each of the claim. I would start with the claim for PSLA.

49.  The Plaintiff claims $250,000 as her loss. No legal authority was given in support.

50.  On her injury, it is clear from my finding that she injured her back and fracture of L1. She was not hospitalized. She recovered well and could return to her pre-accident work. She has mild residue pain.

51.  Defence counsel submitted a list of authority including Leung Yiu Wing v. Wong Lan Fun & others HCPI806/2006, Gurung Durga Bahardur v. Kam Tai Construction Co. Ltd. & Ano. HCPI 304/2004 and Lai Ka Yin v. Chan Yiu Kei DCPI 452/2008. He submitted that the award under this head should be $100,000. I agree with counsel and assessed the award at $100,000.

Pre-trial loss of earning

52.  The sick leave is not disputed. So the Plaintiff should be awarded loss of earning from the date of accident to 16 August 2005. I would allow a period of 3 months for her to find a job. And thereafter, she suffers no further loss as she could return to her pre-accident work.

53.  Her loss including MPF = ($8,000 x 14.5 x 1.05) = 121,800.

54.  There be no award for her post-trial loss of earning.

Loss of Earning Capacity

55.  The Plaintiff’s claim for post-trial loss failed. But she should be awarded loss of earning capacity. She has some residual pain which would affect her earning capacity and I assess at $50,000.

Miscellaneous Expenses

56.  There is claim for miscellaneous expenses. They are not really disputed and I allowed in full.

57.  In summing up, the damages are –

	PSLA	$100,000
	Pre-trial loss of earning (including MPF)	$121,800
	Loss of Earning Capacity	$50,000
	Miscellaneous Expenses	_$13,368
	Total:	$285,168

58.  It is not disputed that the Plaintiff has been awarded $136,448 under her Employees’ Compensation claim in District Court, being DCEC 1255/2004. Her final award under this action should be ($285,168 - $136,448) = $148,720.

59.  Interest will be awarded at 2% p.a. on general damages for PSLA from the date of the Writ. Interest on other special damages will be awarded at half the judgment rate from the date of the incident. The Plaintiff’s solicitors are directed to calculate the amount of interest to be included in the judgment.

60.  There will also be a costs order nisi that the 1^st and 2^nd Defendants should pay the Plaintiff’s costs of this action, to be taxed at District Court scale if not agreed. Unless an application has been made to vary the costs order nisi, the order shall become absolute 14 days after the judgment is handed down.