RANAMAGAR RAM BAHADUR v. HOUNG KEE (ASIA) LTD AND ANOTHER

DCPI 2146/2020

[2023] HKDC 1818

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2146 OF 2020

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  The Plaintiff (P) suffered an accident while working as a panel fitter at a site situated in Shatin Area 46C, Shatin Town Lot No. 577, Siu Lek Yuen Road and Kwong Sin Street, Shatin (the “Site”) on 9 August 2017. P fell off from a metal stool and landed on an anchor bolt, which caused him to twist his left ankle resulting in left ankle/leg fracture (the “Accident”).

2.  The 2^nd Defendant (D2) was the principal contractor of the Site and the 1^st Defendant (D1) was a sub-contractor of D2. P averred D1 and D2 (collectively known as Ds) owed him common duty of care and were in breach of other statutory duty, including those under the Occupational Safety and Health Ordinance and Occupiers’ Liability Ordinance. Both D1 and D2 disputed liability up until 5 days before the trial when Mr Cheng, counsel for the Ds, indicated in his Opening Submissions that liability was admitted. Interlocutory judgment was entered on the 1^st day of trial in favour of P and the only matters left to be determined were assessment of damages and costs.

3.  P was awarded $530,900.00 under the Employees’ Compensation and is claiming an additional $2,883,573 under the common law claims. Ds are of the view that the EC award exceeds the common law damages by $216,555 and contested P’s claim.

THE PLAINTIFF’S INJURIES

4.  P went to the Accident and Emergency Department (“A&E”) of Kwong Wah Hospital (“KWH”) after the Accident. He was attended by Dr Sin Fu Ping who found swelling and tenderness over medial aspect of his left ankle. X-ray showed undisplaced fracture medial malleolus of left ankle. He left leg was put on a plaster cast and was referred to the Department of Orthopaedics & Traumatology (“O&T”) for further treatment. The consultation note from O&T showed P made steady improvement in the follow-ups between 15 August 2017 and 16 October 2018. His cast was removed on 19 September 2017 and was reported to suffer from mild swelling over the left ankle. On 2 January 2018, Dr Andrew Wong from O&T said the X-ray showed healing of the fracture site and by 27 February 2018, no focal tenderness and swelling were observed. His treating doctor referred P to the Medical Assessment Board (“MAB”) on 24 April 2018 as he was considered to have reached stable and static condition and maximal medical improvement, besides some mild residual diffuse pain over the left ankle.

Occupational Therapy (“OT”) Records

5.  P attended 42 sessions of OT between 3 January 2018 and 13 April 2018. It is also worth noted that the occupational therapist concluded that P’s work capacity did not match with the job demand as a form builder, which requires a high level of physical demand.

Joint Medical Examination (“JME”)

6.  P was jointly examined by his expert Dr Wong Chin Hong (“Dr Wong”) and Ds’ expert Dr Ko Put Shui Peter (“Dr Ko”) on 30 July 2020. His complaints in relation to his injuries were recorded in the Joint Medical Report dated 25 September 2020 (“JMR”), which are summarized as follows:

(i) continuous pain around the left ankle (maximal on the lateral side) that could be worsened by (a) walking longer than half an hour, and (b) walking on stairs with maximal of two storeys;

(ii) standing tolerance was 10-15 minutes;

(iii) could not squat;

(iv) needed to walk with umbrella; and

(v) was required to take painkillers twice a day.

7.  Both experts agreed that P suffered from an undisplaced medial malleolus fracture to his left ankle but they held different views as to (i) the gravity of residual symptoms suffered by P (if any); (ii) reasonable period of sick leave; and (iii) ability in returning to his pre-Accident employment.

P’s residual symptoms

8.  The observations made by both experts seemed to suggest P’s subjective complaints could not be supported by any objective and scientific evidence. The full motor power for both P’s lower limb, the absence of muscle wasting and his worn shoes showing no asymmetry demonstrated the fact that P’s condition did not result in any significant strength reduction or muscle usage in his left leg. As to his range of motion in his ankle, the active dorsiflexion was recorded at 0 degree but passive dorsiflexion was 30 degrees when the doctor pressed against his left ankle. It was noted that the dorsiflexion was recorded at a steady 5 degrees from his treating doctors at the O&T of KWH though it was not clear if it indicated a passive or active dorsiflexion. The inversion of his left ankle was at 10 degrees which was significantly lower than his right ankle which was recorded at 40 degrees. The eversion of both his ankles were only 10 degrees, which would be lower than the norm.

9.  Dr Ko opined that the 0 degree dorsiflexion was not consistent with P’s ability in performing a 2/3 squatting nor a 30-degree passive dorsiflexion. He further commented that P’s complaints of decreased sensation around his left ankle had no anatomic, pathological or organic explanation from the alleged injury of undisplaced medial malleolus fracture. In light of the above analysis, Dr Ko therefore concluded that P had exaggerated his residual symptoms. He opined that prognosis for P’s left ankle fracture should carry excellent prognosis, and any mild residual pain should pose no significant hindrance in his daily life and resumption of gainful employment.

10.  Dr Wong did not offer any critical analysis as to the findings of the examination save that he was convinced that the complaints made by P were in line with residual sequelae of soft tissues associated with fractures, and the alleged symptoms and signs would not resolve completely.

The Surveillance Videos

11.  Three video clips were shown in the trial. I did not find the footages being particularly useful as they were edited and it would not be fair to draw any conclusion as to P’s fitness, especially in terms of his walking and sitting tolerance from some truncated recordings.

12.  Mr Clough, acting for P, suggested that the video evidence could support P’s complaint of limping whereas Mr Cheng argued that P was only walking wobbly due to his weight. While it is difficult to determine if P’s gait displayed in the footage should be considered as limping or not, it was obvious that P (i) walked with his umbrella in his left hand but without using it for support, and (ii) he walked slower than the majority of the people around him and seemed even more so when ascending and descending staircases.

13.  While ankle fractures could result in soft tissue damages as suggested by Dr Wong, no assessment was done to verify this being the case. In view of above, the Court is more inclined to accept Dr Ko’s scientific explanation that the clinical findings did not support the subjective complaints made by P, and P should be left with mild residual pain and stiffness only. I would not go so far to say P was malingering but I believe the chronic pain suffering by P could be more of a psychological condition than a medical one, and such perception of pain could be associated with his avoidance behaviour such as his range of motion in his ankle and tendency to walk with an umbrella but without actually relying on it.

THE PLAINTIFF’S EMPLOYMENT PRE-AND-POST ACCIDENT

14.  P came to Hong Kong in 1996 and has since worked in the construction industry. He has experience working as a scaffolder, formwork worker, grouter and steel fixer. He possessed special licence included panel fitter, scaffolding and steel fixer. All these jobs have high demands of physical fitness, strength and stamina, and one would expect the tasks involved in all these jobs would require long term standing, crouching, kneeling, climbing up and down when carrying weight.

15.  The work rehabilitation assessment on 26 February 2018 and the work capacity evaluation on 18 April 2018 with the occupational therapist concluded that P’s work capacity did not match with his job demand, and he was considered not fit to return to his pre-accident employment. The Court borne in mind that such assessment was conducted at a rather early stage of his recovery. I would also pause here to highlight the fact that P was able to perform full squat with hand support at both assessments.

16.  P’s sick leave came to an end on 20 February 2019 and started working as a security guard from 13 April 2019 at a construction site and later in a residential premises. He was still working at the time of the trial but with a significant drop in salary comparing to his last salary as a panel fitter before the Accident.

17.  Dr Ko opined that P should have been able to resume his pre-accident job at construction site by around April / May 2018 without any significant impairment of his work efficiency and effectiveness. Dr Wong agreed that P could return to work at the construction site should he desire so though his work routine to prolonged walking/standing on uneven surface would have to be modified, and to avoid repeated climbing stairs. Dr Wong considered it was appropriate for P to work as a security guard.

18.  Although I agree with Dr Ko that P’s left ankle fracture should carry excellent prognosis and should pose no significant hindrance in his activities of daily living, details of the job nature as a panel fitter or even just a general construction site worker were not discussed with P at the JME. The stamina and strength required for a construction worker to carry out their tasks would certainly be higher than what activities of daily life call for. While Dr Ko accepted there could be mild residual pain and stiffness suffered by P, he did not evaluate the extent of possible impact that could cause upon P when he is required to perform all sorts of high demanding task at work when wearing his safety boots. I have doubts if such assessment of P’s working capacity was made as thorough and insightful as one should. I therefore viewed that while the pain and stiffness in P’s ankle would not affect his daily activities, his working ability as a panel fitter is more likely than not compromised.

19.  In assessing P’s ability in returning to his pre-Accident occupation, P did not strike me as a person who prefers to idle around, and I do not see why he would deliberately choose to work as a security guard over a much higher paid job in the construction industry. P resumed working as a full time security guard just three weeks after the sick leave expired, which means the requisite security personnel permit was most likely than not applied during the sick leave. Bearing in mind P had 21 years of work experience in the construction profession with a range of license obtained, I agreed with Mr Clough there is little reason for him to quit a job that he was good at, making less money but with longer working hours unless P conceived his physical condition did not allow him to do so.

20.  The Court already decided that the complaints made by P was mostly subjective. Dr Wong also opined that P could resume his pre-Accident occupation but workload would have to be modified. As such, there is no objective evidence to support P’s inability in returning to his pre-Accident occupation. In assessing his long term working capacity, I formed the view that he would be fit to return to his previous occupation, and his decreased ability would be well compensated under the heading of ‘loss of earning capacity’.

QUANTUM

PSLA

21.  No shortage of authorities were submitted by both counsels and I would not repeat them here. P suggested an award of not less than $250,000 where Ds proposed $150,000. The Court is of the view that P’s ankle injury was compatible to Dhillon Chamkaur Singh v. Yiu Sze Yuen [2019] HKDC 1393 where the plaintiff was awarded $150,000. I would increase this sum to $200,000.00 to reflect inflation.

Pre-trial loss of earnings & MPF

22.  Ds relied on the last 4 months of P’s wages from Well Success Construction Engineering Limited (“Well Success”) and submitted that the average monthly income of P prior to the Accident would be $20,597.65. On the other hand, P asserted that he was paid $1,000 per day by Well Success and an additional $300 from Asia Engineering & Resources Limited (“Asia Engineering”), and thus his monthly average income would be around $26,000. There was no documentary evidence supporting the additional $300 paid by Asia Engineering and P’s tax return for the 2017/2018 assessment year did not show any income from Asia Engineering either. P tendered his colleague Mr Gurung to give evidence who averred that his salary was paid through these two companies with $300 paid by Asia Engineering.

23.  Ds criticized P’s assertion of monthly income was made without basis, and the fact that Mr Gurung was paid that amount does not mean P was also paid the same.

24.  The Court’s attention however turned to three other matters. First, an unsigned document submitted by P showing a sum of $6,360 was deposited into P’s account in July 2017. P averred such sum reflected his salary of June 2017 made by Asia Engineering. Secondly, the Court noted that P never earned less than $25,000 per month on average between 2014 and 2017 as showing from the tax records. The average monthly income of 2016/2017 was as high as $45,405.4. Thirdly, it is not uncommon for construction workers to receive their total wages from more than one contractor/construction company, and in most cases, these workers did not have a choice as to how their wages are being paid.

25.  In light of the aforesaid, and bearing in mind of P’s extensive experience in the construction industry, I consider it is perfectly reasonable for P to make an average monthly income of $26,000 (inclusive of MPF) prior to the Accident.

26.  As to the length of sick leave, Dr Ko opined that P should be able to return to work latest by May 2018. I have already discussed Dr Ko’s conclusion lacked the evaluation of P’s work demands but simply based on his ability in conducting activities of daily living. As such, I am more inclined to adopt the total duration of sick leave granted by the government doctors, i.e. from 9 August 2017 to 20 February 2019.

27.  P resumed working as a security guard 3 weeks after the sick leave expired. I considered it is a reasonable period for P to secure a full time job.

28.  As discussed above, P is expected in returning to his pre-Accident job upon the expiry of his sick leaves notwithstanding a probable reduced capacity, which should be compensated under another heading to be discussed below. As such, the total loss of pre-trial income would be restricted to sick leaves between 9 August 2017 and 20 February 2019 with an additional 3 weeks. This would be 582 days in total and I will round it up as 19.5 months. In such premise, the loss of pre-trial income is:-

$26,000 x 19.5 months = $507,000.00

Future loss of income

29.  No future loss of income will be awarded based on reasons explained above.

Loss of earning capacity

30.  The potential reduced working ability was discussed above. P was around 50 years old at the time of the Accident and given the high demand of physical fitness required for his job, I agree with Ds that his remaining working life should not be more than 9 years.

31.  The Court considered 6 months of his average income could reflect his disadvantage in the labour market, as such the total loss of earning capacity is:-

$26,000 x 6 = $156,000.00

Special Damages

32.  Special damages are agreed at $6,875.00.

Summary on quantum

33.  Based on the above, P is awarded the followings:

PSLA	$200,000.00
Pre-trial loss of earnings & MPF	$507,000.00
Future loss of earnings	NIL
Loss of earning capacity	$156,000.00
Special damages	$6,875.00
Gross total	$869,875.00
Less Employees’ Compensation	($530,900.00)
Net Total	$338,975.00

INTEREST AND COSTS

34.  Interest on general damages will be awarded at 2% per annum from the date of issue of the writ to the date of judgment, and thereafter at judgment rate until payment. Interest on other pre-trial loss and special damages will be awarded at half the judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

35.  I also make a costs order nisi against Ds in favour of P for the assessment of damages proceedings with Counsel’s Certificate, to be taxed if not agreed. The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary such within this 14 days’ period.

36.  P’s own costs be taxed in accordance with the Legal Aid Regulations.

37.  Lastly, it remains for me to express my gratitude to counsels from both sides for their helpful assistance rendered to the Court.