CHEUNG CHI WAH v. WAI LUEN METAL FACTORY

1995 P.I. No. 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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1. The Plaintiff on the 12th March 1992 was employed by the Defendant as a delivery and general worker. He was injured when he was closing the panel at the lower part of a container in the factory. The panel fell and crashed and injured the 2nd toe on his right foot.

2. The cause of the injury was that one of the hinges at the bottom of the panel broke. The Plaintiff's claim is for damages for personal injuries arising out of that incident.

LIABILITY

3. The Plaintiff's case is that he had informed the Defendant that one of the hinges in the container was broken but no repair work was carried out. As a result the panel fell and hurt his toes. The Defendant was negligent in that the Defendant owed the Plaintiff a duty of care and had failed to take precautions for the safety of the workers.

4. The Defence is that the Plaintiff was not required to close the panel and in the alternative the accident was contributed to by the negligence of the Plaintiff by not taking care of himself, or repairing the hinge, or report the matter to the employer.

5. After hearing the evidence of both the Plaintiff and Mr. Leung Sing Chi for the Defendant on balance I find that the Plaintiff would not have approached that container if he was not required to do so. I do not find that the Plaintiff had contributed to the accident.

6. In the premises the Defendant is 100% liable in respect the cause of the accident.

DAMAGES

7. After the injury the Plaintiff went to consult herbalist and had an x-ray on 30th March 1992 which revealed fracture of the middle phalanx of the 2nd toe.

8. He continued to work until 10th June 1992 and had consulted a herbalist from 11th April 1992 to 30th April 1992. He then consulted Dr. Eddie T. Chan (a general practitioner) twice and was given sick leave from 9th July 1992 until 27th July 1992. He then was given numerous sick leave certificates from Dr. Simon S S Wong, a Paediatrician, from 28th July 1992 to 7th June 1993 because of right 2nd toe injury. He went to Tuen Mun Hospital Department of Orthopaedics and Traumatology between 4th September 1992 to 2nd October 1992 where physical examination revealed mildly swollen right 2nd toe with local tenderness and decreased inter phalangeal joint movement. He defaulted follow up consultation since October 1992.

9. On 28th January 1994 he was examined by Dr. Lau Hoi Kuen. On physical examination it was found that he walked with no limp, no deformity or swelling of 2nd right toe but there was tenderness over the flexor and extensor tendons and a slightly decreased plantarflexion. X-ray revealed the frature was completely healed. He complained of pain but according to Dr. Lau judging from the way he walked, the pain should not be as severe as he complained.

10. He was also examined by Dr. Tsoi Chi Wah, an orthopaedic surgeon who found that apart from the subjective pain on palpation, no other abnormality was detected.

11. Dr. Chan Chee Hung a psychiatrist examined the Plaintiff on 20th October 1997. The examination was in the form of a psychiatric examination with an aim to provide medical report restricted to matters of medical opinion. He had all the medical records and reports including Dr. Tsoi Chi Wah.

12. Dr. Chan without giving any reason stated that the Plaintiff has a psychiatric problem and that the accident was the cause. He then went on to say that the death of Plaintiff's mother-in-law in 1996 and the moving house because his wife was afraid of snake were other psychosocial stressors. I do not accept that. Though not a psychiatrist myself I do not accept that anyone who carried on working for 3 months after the injury, his psychiatric problem could have been caused by that injury. The distress at the loss of the mother-in-law unless he was really close to her and the stress of moving house are only of a transient nature.

13. Dr. Chan in his report went on to say that the Plaintiff walked without limp, talked fluently and intelligibly, emotionally calm and did not feel anxious or depressed.

14. The report went on to record what the Plaintiff told him. The Plaintiff became easily irritable, suffered insomnia and had to take cough syrup for sleep, gained weight because of his limited leisure activities. He had to give up his hobbies. He used to play football, go fishing and swimming. As a result he became fond of gambling and incurred problems with debt caused by gambling. He was able to work only an average of 5-6 days a month and he felt too boring working as a watchman.

15. I find on balance that these are purely fabrications on the part of the Plaintiff. He had never informed the doctors he consulted of insomnia. It is unlikely that anyone who suffered from insomnia could gain weight. In answer to my question he said that he still plays football. It is ridiculous to say that he had to give up fishing for gambling. One either stands or sits to fish likewise for gambling one has to adopt similar postures and sometimes may even have to squat down depending on where and what one played. In his list of post accident wages in the revised statement of damages he never claimed he had worked as watchman. Even accepting what he said about the recurring pain there is no reason why he was able to work only an average of 5-6 days a month because according to him the pain would came once in several weeks and would last for 5 minutes or so. If what he said was true, all he needed was to rest for a few minutes before continuing his work. I am sure no one could work continuously without a break.

16. Dr. Chan after hearing the complaints from the Plaintiff opined that he is suffering from neurotic disorder and is a case of hypochondriacal disorder. Dr. Chan disagreed with Dr. Tsoi's opinion that the pain was not genuine without examination or palpation and said the inability to perform his usual hobby is probably a good indicator that the pain was genuine. Again I disagree with him for reasons stated earlier in respect of his hobbies.

17. Dr. Chan also opined that his neurosis had been complicated by other stressors and that the neurosis was resulted from the accident. His motivation for work is low and in many cases there are improvements once the compensation is settled.

18. Having analysed Dr. Chan's and all other reports and the fact that the fracture was completely healed with no deformity or swelling and with only slightly decreased plantarflexion movement of the M T P joint, I do not consider the injury to be serious and there is hardly any disability. I find him a malingerer. I cannot see why having worked continuously for 3 months after the injury, he had suddenly stopped working and then went to a paediatrician for sick leave certificates. There is a duty to mitigate loss instead of paying $90.00 each time to a paediatrician for sick leave certificates for a "right 2nd toe pain".

PAIN, SUFFERING AND LOSS OF AMENITIES

19. I accept that the Plaintiff might have recurring pain once every now and then for a few minutes but the fact that he could have continued working for 3 months is a good indication that there was not much pain and suffering.

20. At the trial the Plaintiff said that he still played football. What he told Dr. Chan about not being able to pursue his hobbies and had resorted to gambling is ludicrous. In Wong Sam-mui (Administratrix of the Estate of Tam Wan Loong, deceased) v. Fan Yiu Sum HCA 1817/94 Master O' Donnell on 17th March 1995 gave an award of $50,000 for pain and suffering and loss of amenities in respect of fractures to 2nd and 3rd metatarsal bones and lacerations, hospitalised for 3 weeks with follow up treatment for 6 months. In the present case the pain and suffering is less than that case.

21. As for neurosis, in Wong Hok Chuen v. Tai Kam Kui HCA 5331 of 1985 judgment in 7/86 the Plaintiff suffered concussion for a few hours, with laceration of the scalp and the scrotum, a wedge fracture of the front of the body of the 2nd lumber vertebra and some damage to the fifth lumber nerve and to the right shoulder joint, hospitalized for 3 days. The injuries had healed well but Plaintiff suffered emotional disturbance and had developed a phobia about work and had not returned to work after the accident. The Plaintiff in that case had became confused between his sufferings in 10 years of persecution during the cultural revolution and his suffering as a result of the accident. Evidence showed that the accident triggered neurosis in a fragile personality. Prognosis was good and it was hoped he could return to normal within 6 months of judgment. Hunter J. awarded a global sum of $50,000 to cover the physical injuries, the loss of earning capacity until he improved and the unhappiness suffered.

22. Again, neurosis, if any, the Plaintiff suffered is far less than Wong Tak Chuen's case.

LOSS OF EARNING

23. I have found on balance the Plaintiff is a malingerer. The fracture could only have improved with passage of time. There is no evidence that his injury had aggravated when he continued to work. If he could work continuously for 3 months after the injury, there is no reason why he could not continue to work. From the Plaintiff's own evidence he said " There is no difficulty in finding jobs because I started working very young and got lots of friends". The court's duty is to see whether the Plaintiff was genuinely unable to work as a result of the accident. I find this not to be the case I therefore will not give any award under this head.

FUTURE LOSS OF EARNINGS

24. Similarly for reasons aforesaid I find there is no future loss of earnings nor any loss of earning capacity.

25. Taking into consideration all the medical reports, the decided cases of Wong Sam Mui and Wong Hok Chuen I allow a global sum of $50,000 to cover all the items claimed.

SPECIAL DAMAGES

26. I allow the bone setter's fees of $900.00. As for medical expenses of $3,060.00, I take that to mean the 2 receipts of Dr. Simon Wong in the sums of $990.00 and $2,070.00 respectively. The 1st receipt was for 11 consultations from 4th December 1992 till 23rd February 1993 and the 2nd receipt was for 23 consultations from 4th December 1992 to 1st June 1993. There is an over lap in that the 2nd receipt covered also the sum claimed in respect of the 1st receipt. In the premises I allow only $2070.00 I also allow in full the travelling expenses for attending medical treatment set out in the revised statement of damages in the sum of $832.00 and the medical expenses at out-patient clinic of $71.00. I also allow $510.00 for herbal liquor and ointment. I disallow the item on nourishing food as I do not consider the injury of this nature justified special nourishing food. The total sum awarded under this head is therefore $4,383.00.

27. The total amount of damages is therefore $50,000 + $4,383.00. The Plaintiff has already been awarded $38,676.00 under Employees' compensation case No.11 of 1994.

28. In the premises there be judgment for the Plaintiff in the sum of $15,707.00 with interests at 2% from date of writ to judgment. Costs on District Court scale. Plaintiff's own costs to be taxed according to Legal Aid Regulations.

(Wesley Wong)

Deputy Judge of the Court
of First Instance