TAM FU YIP FIP v. SINCERE ENGINEERING & TRADING CO LTD

cacv 208/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 208 of 2007

(on appeal from HCPI NO. 473 of 2006)

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Date of Hearing: 19 March 2008

Date of Handing Down Reasons for Judgment: 8 April 2008

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an appeal from an order of Saw J dated 6 June 2007 in a personal injuries action ordering the defendant to pay the plaintiff $286,129 with interest.  As the conclusion of the hearing the appeal was allowed for reasons to be handed down which we now give.

Background

2.  The plaintiff who was employed by the defendant sustained an accident at work.  On 12 September 2002, the plaintiff slipped from the top of a ladder and fell some 6 or 7 feet, landing on his leg and hip.  The trial before the judge related to quantum only, liability not being an issue.

3.  At the time of the accident the plaintiff’s monthly income was $14,300.  He was granted a total of 913 days of sick leave, from 13 September 2002 to 14 November 2003 and from 20 January 2004 to 18 May 2005.

4.  The judge awarded damages of $548,320 but credit was to be given for the $262,191 already paid by the defendant pursuant to the Employees’ Compensation Ordinance, Cap. 282.  The largest component of the award was for pre-trial loss of earnings and MPF of $450,450 calculated on the basis of 30 months’ sick leave. 

5.  The defendant seeks to set aside the award for pre-trial loss of earnings and to substitute in its stead an award of $52,552.50 to represent 3.5 months of loss of earnings and MPF.

The proceedings below

6.  At the checklist review on 28 December 2006, the registrar ordered, inter alia, that the medical evidence be limited to one orthopaedic surgeon for each party, Dr Au Ka Kau for the plaintiff and Dr Chun Siu Yeung for the defendant.  It was also ordered that all medical reports be adduced without calling the makers.

7.  The terms of that order are a little puzzling given that Dr Au and Dr Chun had prepared a Joint Medical Report on 8 April 2006 based on a joint interview and examination conducted on 13 March 2006.  This report was thus available well before the checklist review.

8.  It is plain from a reading of that joint report that, inter alia, the doctors had divergent views on the appropriate length of sick leave.  Dr Au endorsed the sick leave of 913 days granted by the Medical Assessment Board on 18 May 2005 without stating any reasons while Dr Chun considered 90 days from the date of the accident to be reasonable based on his conclusion as to the nature of the injury sustained.  It would appear that at the review, the registrar’s attention was not drawn to the diametrically opposed views of the doctors.  The judge should not be put in the impossible position of having to resolve the matter based on the joint report alone without the benefit of oral evidence from the doctors on that issue. 

9.  In situations like that, I consider it incumbent on the plaintiff who, after all, has to make good his case, to seek an order for oral evidence from the doctors on the specific issue or, at a minimum, to seek leave to put in a supplemental report, again, limited to the specific issue.  I regret to say that in the present case, I am left with the impression that no proper preparation had been made for the checklist review.  Such reviews serve a useful purpose and litigants would be well-advised not to regard them as perfunctory.

10.  In any event both doctors observed that, from the series of tests performed at the joint examination to establish whether or not the complaints made by the plaintiff were genuine, there were a number of non-organic signs (in fact seven in total) in the plaintiff’s presentation.  In other words, “his complaints were inconsistent one with the other and with objective criteria”.

11.  Dr Au observed that

“Some evaluators would interpret these as hallmark of symptom magnification if there were more than three positive signs.”

As the judge noted, he did not commit himself beyond that observation and expressed no opinion as to whether the plaintiff was exaggerating or indeed fabricating the pain.  On the other hand, Dr Chun expressed a firm and clear view that the plaintiff was grossly exaggerating his symptoms and that he sustained no more than a “relatively minor soft tissue injury” which did not result in any major trauma, fracture or dislocation, a conclusion with which Dr Au did not disagree.  The judge considered Dr Au’s omission to express an opinion given the non-organic signs to have been intentional and found himself left only with Dr Chun’s conclusions which he accepted.

12.  In addition to the medical evidence, the judge had the benefit of the plaintiff’s oral evidence as well as surveillance films taken of the plaintiff.

13.  On the material before him, the judge expressed himself satisfied that the plaintiff suffered a minor soft tissue injury in the fall, that the plaintiff was an untruthful witness and had exaggerated his complaints.  He then made the following factual finding at § 34:

“I have found as a fact that the plaintiff is, as Dr Chun observes, grossly exaggerating the injury suffered in September 2002.  I am satisfied that he was fit and able to return to his former employment no later than January 2003.  I would, were it necessary, prefer the opinion of Dr Chun as to the length of sick leave to be allowed.”

14.  Notwithstanding that finding, the judge considered that there was an impediment to his going behind the periods of sick leave given by the treating doctors because there was no evidence adduced to suggest or imply that those who had granted the plaintiff sick leave had done so improperly.  He held (at § 36) that there was “insufficient evidence for [him] to revisit the integrity of the granting of sick leave”.

The appeal

15.  Mr Lim who appeared for the defendant submitted that given the judge’s clear finding (at § 34) as to the plaintiff’s fitness to return to work no later than January 2003 and that the appropriate length of sick leave was three months, his conclusion at § 36 was illogical and could not be sustained.

16.  There is no respondent’s notice challenging the express finding made in § 34 of the judgment.  It should be mentioned that apart from the sick leave certificates, there is also a certificate of assessment of the Medical Assessment Board granting 913 days of sick leave.  Mr Lam who appeared for the plaintiff acknowledged and confirmed that he was not seeking to overturn the judge’s express finding as such.  It therefore fell to him to come up with a convincing explanation as to how § 36 could sit comfortably with § 34.  As I understand it, Mr Lam submission is that apart from the specific finding in § 34, there was also an implied finding implicit in the judge’s statement that he was unable to go behind the periods of sick leave given.  It was said that in accepting the certificates, the judge was also accepting that the plaintiff was unable to return to work as a result of the accident.  As the express and implied findings are contradictory, there is no reason for this court to accept one finding and not the other.  But in my view the fact that the judge appeared to be under the impression that there was some impediment to his going behind the certificates, must militate against his making any ‘implied finding’.  I am far from persuaded that §§ 34 and 36 can co-exist and, since § 34 is an express finding, § 36 must go.

17.  Mr Lam then submitted that the loss of earnings during the entire period covered by the sick leave certificates should be recoverable as expenses honestly and reasonably incurred by the plaintiff on the basis of expert advice.  He referred to the following passage in Butterworths’ Hong Kong Personal Injuries Service Volume 1 at II 959:

“(3)      Where a plaintiff has acted honestly and reasonably, and incurred expenses on the basis of expert advice, such expenses are recoverable even if it is subsequently shown that the advice was wrong and any treatment undertaken was unnecessary.”

Mr Lam also prayed in aid the fact that the doctors in issuing the certificates are subject to the code of conduct governing the medical profession and it has to be assumed that when issuing the certificates, the treating doctors were acting in accordance with the requisite standard required of them.  There are difficulties with the submission.  First, it is the patient who makes the request for a  certificate from the doctor.  Second, a doctor treating his patient may, consistently with the code of practice, issue the certificate without carrying out any detailed examination since such an examination is not always practicable or necessary.  What is quite clear in the present case is that the plaintiff has been found to have grossly exaggerated his complaints.  Although the exaggeration took place during the joint examination, plainly it would be open to the judge not to disregard the possibility of the plaintiff also having exaggerated his symptoms when he saw the treating doctors responsible for issuing the sick leave certificates.

18.  Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period.  In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly.  Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other.  Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.  As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, unreported, CACV 172/2004, 15 July 2005 at § 9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.

19.  For the reasons stated, the appeal was allowed.  Accordingly, the damages awarded by the judge would be reduced from $548,320 to $150,422.50 to reflect the substitution of the sum of $52,552.50 for $450,450 awarded in respect of pre-trial loss of earnings and MPF.  As noted earlier, the defendant has already made payment of $262,191 to the plaintiff under the Employees’ Compensation Ordinance.  Since that amount exceeds the amount of damages to which the plaintiff is entitled, the costs here and below should therefore be to the defendant with the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Hon Cheung JA:

20.  I agree.

Hon Reyes J:

21. I agree.