UNWAR NAVIN KUMAR v. GURKHAS CONSRTUCTION LTD AND OTHERS

HCPI 59/2020

[2024] HKCFI 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 59 OF 2020

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J U D G M E N T

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1.  The Plaintiff is suing the 1^st, 2^nd and 3^rd Defendants for damages for personal injuries sustained at work. Liability has been admitted and the trial is on quantum of the damages.

Agreed Facts

2.  The background facts of the accident have been agreed by the parties.

3.  The Plaintiff was a rigger at the construction site at West Kowloon Terminus Station North. The 1^st Defendant was the employer, 2^nd Defendant was the sub-contractor, and the 3^rd Defendant the Main Contractor.

4.  On 1 March 2017, the Plaintiff was working with some co-workers in tidying up metal scaffolding materials. The workplace was underground and the lighting condition was dim.

5.  At around 11:20am, the Plaintiff was squatting down to clear the materials on the floor. Suddenly, a metal scaffolding tube shot towards the Plaintiff from his right-hand rear side. The metal tube hit the dorsum side of the Plaintiff’s right hand, causing injuries to his right hand. At the time of the accident, the Plaintiff was wearing semi-leather working gloves.

Plaintiff’s case

6.  The Plaintiff explained his job as a “rigger”. His duties were to collect the tubes of the metal scaffold on the ground, tie them in a bundle and attach the bundle to the hook of the crane for lifting up to higher levels. The Plaintiff was not the crane operator, nor was he required to build the metal scaffold. The Plaintiff said in his witness statement that he needed to climb height, but under cross-examination said needed not do so.

7.  The Plaintiff said the longest metal scaffold tube was about 11 ft or 3.3 m, and the tube would weight 4 kg per meter, hence, 13.2 kg.

8.  The Plaintiff said at the time of the trial, he still had the seven symptoms listed in his witness statement:

“(1) Distortion of the right 4^th metacarpal;

(2) Intermittent pain on the right hand, sometimes radiating to the forearm;

(3) Pain is aggravated with exertion of the right hand, during cold weather, bad weather and change of weather;

(4) Pain at night or in the morning after waking up;

(5) Unable to hold a firm grip with the right hand due to pain;

(6) Unable to lift heavy objects with right hand due to pain;

(7) Need to take painkiller when needed (eg during cold weather).”

9.  The Plaintiff said he is still in pain from time to time, and would need painkiller. He was not able to make a full fist because of pain, and the right hand grip was weak. He was not able to resume his previous job of a rigger. He had since worked as a security guard.

Hospital Records

10.  The plaintiff was treated with closed reduction (non-surgical) of the bone and put on splint and was admitted to the Orthopaedic ward of the Queen Elizabeth Hospital (“QEH”) for one night.

11.  After discharge from hospital, the Plaintiff received follow-up consultation at QEH from March to August 2017, thereafter in December 2017 to monitor progress.

12.  However, the QEH records (save for a concluding report dated 12 November 2018 by Dr Terence K Ma) were not available to the medical experts for both sides at the joint examination. The QEH records were only made available shortly before the trial. Those records were used to cross-examine the Plaintiff as well as the experts.

13.  The QEH records showed that on 16 March 2017 (2 weeks post injury), the Plaintiff was seen by Dr Yuen Lok Sang. The record showed there was mild pain over the injured site. X-ray showed alignment well. Under cross-examination, the Plaintiff said he still had severe pain then and the doctor’s entry was wrong.

14.  On 30 March 2017 (4 weeks post injury), the Plaintiff was seen by Dr Yuen again. The record showed there was minimal pain over the injured site, and wrist and fingers were stiff. X-ray showed alignment well with callus. Under cross-examination, the Plaintiff again said he was in severe pain and the entry was wrong.

15.  The QEH Occupational Therapy Department Progress Note dated 29 March 2017 showed there was pain and local tenderness, but no swelling or bruising.

16.  On 27 April 2017 (8 weeks post injury), the Plaintiff was seen by Dr Mathew Wai-hon Lee of QEH. The record showed there was still complaint of some residual pain, and physical examination showed mild tenderness over the injured site. There was no rotational deformity and he was able to make a full fist with full active range of motion (“AROM”). Analgesics (Panadol) was prescribed PRN (ie when needed). Under cross-examination, the Plaintiff said the doctor made a wrong entry in the record as he had severe pain sometimes, and sometimes less pain, and had pain when someone touched and also when no one touched. He did not take the analgesics all the time, only when needed. He could not remember being told of no rotational deformity or able to make a full fist and full AROM.

17.  The QEH Occupational Therapy Progress Note dated 5 May 2017 (2 months after the injury) showed on that day the Plaintiff had on and off pain and local tenderness, but no swelling or bruising.

18.  The QEH Occupational Therapy Hand Assessment Form showed that on 6 occasions from 12 May 2017 to 11 August 2017, the Plaintiff had done, amongst others, the power grip test (see further below for explanation.) The readings showed the injured right hand was weaker than the uninjured left hand, initially from 1/3 improving to 2/3.

19.  On 1 June 2017 (14 weeks post injury), the Plaintiff was seen by Dr Liu Shan of QEH. Physical examination found non-tender at injured site, with no rotational deformity, able to make a full fist, AROM full and X-ray showed bone healing. The Plaintiff was informed that he would be referred for the Medical Assessment Board (“MAB”) when physiotherapy and occupational therapy training potential had reached static state. Under cross-examination, the Plaintiff said the entry was wrong again as he had told the doctor sometimes he had severe pain, sometimes mild. He could not remember whether the doctor had touched the fractured site. He was told the bone and fracture was healing, and that he would be referred to MAB in due course.

20.  On 13 July 2017, the Plaintiff was seen by Dr Lee Siu Chung of QEH. Physical examination found non-tender, and there was no more pain and hand function was restored, with no rotational deformity, able to make a full fist and AROM full. X-ray showed callus was stable. Under cross-examination, the Plaintiff said he never told the doctor he had no pain and the doctor’s entry was wrong.

21.  On 1 August 2017, the Plaintiff was seen by Dr Li Weiguo of QEH. The record showed he claimed not be able to make a tight fist. Physical examination showed non-tender at injured site, no rotational deformity, able to make a full fist, and AROM was full. Under cross examination, the Plaintiff said the pain was not like before, but on-and-off. He could not recall being asked to make a fist nor to move his fingers.

22.  On 17 August 2017, the Plaintiff was again seen by Dr Li Weiguo. Physical examination showed non-tender at injured site and no deformity. The Plaintiff still claimed not be able to make a tight fist. Dr Li granted sick leave to 17 August 2017 and referred him to MAB, with monitoring in 4 months’ time. Under cross examination, the Plaintiff said he could not remember whether he was touched at the injured site. At that time he did not have the same pain as before, but on-and-off.

23.  On 25 August 2017 and 19 October 2018, the Plaintiff was seen by Dr David Ip, orthopaedic surgeon in private practice. Dr Ip’s Medical Report dated 20 October 2018 stated that X-ray showed traverse fracture of the right 4^th metacarpal. Dr Ip stated surprisingly no operation was done and the Plaintiff was treated conservatively with no improvement in pain and hand function. The Plaintiff was still suffering pain, with more pain on carrying even light object, and poor power grip on 1/3 of the opposite hand. Dr Ip called for X-ray.

24.  The radiologist report of Dr Albert Lai dated 26 August 2017 showed mild focal bony deformity at mid-shaft of right 4^th metacarpal, but no significant angulation, no other fracture or dislocation, nor other abnormal bony lesion or erosive arthropathy. The facture had healed or almost healed.

25.  On 7 December 2017 (9 months post injury), the Plaintiff was seen by Dr Terence K Ma of QEH. Dr Ma recorded that the Plaintiff had been to see a private orthopaedic surgeon and was still on sick leave. He complained that it was still painful on flexing fingers, and was unable to make a full grip.

26.  In re-examination, the Plaintiff said that the doctors did hold his right hand and examined it. When asked by the doctor whether he felt pain, he said yes, and the QEH records were wrong.

27.  On 12 November 2018, Dr Terence Ma wrote a concluding Medical Report based on the notes and instructions by more than one doctor at QEH. He stated that on the last assessment, the Plaintiff complained about residual pain on flexing fingers and he was unable to make a full grip. There was no deformity. His conditions were considered static and was referred to MAB.

28.  The sick leave granted by the QEH doctors was until 17 August 2017. And thereafter, the Plaintiff was given further sick leave by Dr Ip from 25 August 2017 to 15 November 2018.

Joint Medical Examination

29.  On 30 October 2020, the Plaintiff was examined jointly by the Dr Law Yee Cheong Wally, the Plaintiff’s expert, and Dr Chun Siu Yeung, expert for the 1^st to 3^rd Defendants. Both experts gave evidence at the trial.

30.  At the time of the joint examination, the experts had not been provided with the QEH records, nor all the X-rays and reports available up to that date.

31.  The experts compiled the Joint Medical Report dated 18 December 2020 and the supplemental Joint Medical Report dated 7 June 2021. The agreed parts of joint medical reports are as follow:

“1. The Plaintiff was cooperative during the interview on 30 October 2020 The Plaintiff has normal general conditions.

2. Gesturing with right hand during interview free and natural, no abnormality noted.

3. The right hand has faint abrasion scar of 2mm on the dorsum.

4. Clinical photos on 30 October 2020 showed, upon full extension the right hand ring finger has normal alignment without varus/valgus deviation. The nail plate of ring finger has neutral orientation without any rotation deformity. On flexion the hand has complete fist closure without any deviation, overlapping or crowding of fingers. The x-ray of the right hand on 30 October 2020 showed similar configuration as the films on 25 August 2017 and 8 May 2021. The right hand 4^th metacarpal has normal alignment on AP view, without any valgus/varus deformity. The shaft of the 4^th metacarpal has thickening with bowing, which is compatible with the usual clinical sequelae of healing after fracture.

5. In the AP view taken on 8 May 2021 showing both hands, the right 4^th metacarpal bone has a length of 5.1cm, while the left 4^th metacarpal bone has a length of 5.8cm.

6. The clinical photos taken on 19 January 2021, upon a full fist closure, the right 4^th knuckle has recession comparing to the left hand. This is consistent with the x-ray finding of shortening of the length of the right 4^th metacarpal bone.

7. The right hand has shortening deformity in the length of the 4^th metacarpal. The alignment in rotational, sagittal and coronal planes are normal.

8. The skin temperature and moisture are normal.

9. There was tenderness at the right hand along the 4^th metacarpal bone at its mid-shaft.

10. The right hand and forearm do not have any feature of CRPS I.

11. The right wrist has full motion range without any swelling or deformity.

12. The right hand grip was incomplete at the 4^th ray, with the ring finger tip to palm distance of about 0.5cm.

i. The motion range of the right ring finger was:

ii. Metacarpal Phalangeal joint, extension +30°, flexion 100°;

iii. Proximal interphalangeal joint, extension 0°, flexion 110°;

iv. Distal interphalangeal joint, extension 0°, flexion 70°.

13. The girth of the forearm was 24cm on both sides.

14. The grip strength of the hands was measured with dynamometer with the following results:

	Right	Left
Position 1	10kg	28kg
Position 2	15kg	32kg
Position 3	20kg	30kg
Position 4	14kg	26kg
Position 5	12kg	24kg

15. According to the x-ray taken on 30.10.2020:

i. The 4^th metacarpal previous fracture is healed;

ii. The cortex of the 4^th metacarpal shaft is thickened, consistent with previous fracture.

16. The Plaintiff’s condition has reached maximal medical improvement and he does not require further treatment.

17. The Plaintiff does not require any further assessment by other specialties.”

32.  Amongst the non-agreed parts in the joint medical examination are the Numeric Pain Rating Scale (“NPRS”) and the hand grip power test (see further below).

33.  During the joint medical examination, the Plaintiff was asked to rate his pain on the NPRS. Before the test, the Plaintiff was shown a Universal Pain Assessment Chart (Exh. D1) with a scale of 0 to 10, with 0/10 indicating no pain with a smiling face, and 10/10 indicating worst possible pain and a moaning and crying face. The chart was explained to the Plaintiff through Nepalese interpretation.

34.  At first, the Plaintiff chose 8/10 indicating very severe pain. Dr Law then explained to the Plaintiff that 10/10 was extreme pain, such as whole body burn or childbirth, and 8/10 indicated very severe pain. Thereafter, the Plaintiff chose 6/10, which indicated severe pain.

35.  Dr Law considered 6/10 was still too high, but he did not further explain it to the Plaintiff because he considered NPRS was not useful and decided to “give up”. However, he did not raise nor discuss it with Dr Chun.

36.  Subsequent to the joint examination on 30 October 2020 and the Joint Medical Report dated 18 December 2020, the expert were shown the X-rays taken on 25 August 2017 and 8 May 2021, and the X-ray reports dated 26 August 2017 and 11 May 2021, and some photographs of the Plaintiff’s hand taken by Dr Law on 30 October 2020. The experts compiled a Supplemental Joint Medical Report dated 7 June 2021. They agreed that on most of the findings, that:

“i. Clinical photos on 30 Oct 2020 showed, upon full extension the right hand ring finger has normal alignment without varus/valgus deviation. The nail plate of ring finger has neutral orientation without any rotation deformity. On flexion the hand has complete fist closure without any deviation, overlapping or crowding of fingers.

ii. The x ray of the right hand on 30 Oct 2020 showed similar configuration as the films on 25 Aug 2017 and 08 May 2021. The right hand 4^th metacarpal has normal alignment on the AP view, without any valgus/varus deformity. The shaft of the 4^th metacarpal has thickening with bowing, which is compatible with the usual clinical sequelae of healing after fracture.

iii. In the anteroposterior (AP) view taken on 08 May 2021 showing both hands, the right 4^th metacarpal bone has a length of 5.1cm, while the left 4^th metacarpal bone has a length of 5.8cm.

iv. The clinical photos taken on 19 Jan 2021, upon a full fist closure, the right 4^th knuckle has recession comparing to the left hand. This is consistent with the x ray finding of shortening of the length of the right 4^th metacarpal bone.”

37.  Dr Law amended para 36 of the Joint medical Report to “the right hand has shortening deformity in the length of the 4^th metacarpal. The alignment in rotational, sagittal and coronal planes are normal”. Otherwise, Dr Law maintained his opinion in the first Joint Medical Report.

38.  Dr Chun also amended para 62(iv) of the Joint Medical Report to “X-ray examinations showed mild bowing leading to slight shortening of the 4^th metacarpal bone without adjacent joint changes”, but commented that such mild knuckle recession under normal circumstances would not result in functional impairment. Otherwise, Dr Chun maintained his opinion in the first Joint Medical Report.

39.  In summary, the X-rays and clinical photos showed the Plaintiff had some deformity in the right 4^th metacarpal. The right 4^th metacarpal bone was 5.1 cm long, while the left 4^th metacarpal bone was 5.8 cm. Upon closing the right fist, there was 0.5 cm distance between the ring finger and the palm.

40.  Thereafter, there was the 2^nd Supplemental Joint Medical Report dated 2 August 2021. Dr Chun corrected a typo in the Joint Medical Report and added “not” to his previous comment at para 62(iii) to read that “the slight reduction of the ring finger flexion should not affect the grip power.” Dr Law had no further comment or amendment to make.

Analysis

41.  In gist, Dr Law considered that the Plaintiff was unable to return to the pre-accident job, and the opposite view was taken by Dr Chun notwithstanding the mild deformity in the right hand shown in the X-rays and clinical photos.

42.  The key issue at the trial was pain, and in turn, power of the hand as affected by pain. The Plaintiff maintained he could not hold a full fist or his grip was weaker because of pain. Both experts accepted that pain is subjective, and much depended on the credibility of the Plaintiff.

43.  Before going further, much have been said about maximal improvement as indicated by referral to MAB. Maximal improvement and residual pain are two different matters. Once could have lingering pain in a static state. Hence, it is ultimately for the Court to decide whether there is pain affecting the Plaintiff’s work capability.

44.  Dr Law explained that scarring might cause pain. Scarring is formed by bleeding and also callus from the growth of new bone. Scarring depends on the extent of the fracture. Scarring would not be shown by XA-ray, and there is no objective illustration or demonstration of the scar. And the treatment of closed reduction (ie non-surgical) of the bone might cause more swelling, fibroses, and scarring.

45.  Dr Law submitted that the perception of pain was personal, affected by personal experience, cultural background, own expectation and fear of pain. Hence, to some, mild pain could be described as severe pain.

46.  Dr Law tried to explain away “non-tender” in the QEH report. He submitted that tenderness (painful) or non-tender (not painful) is a clinical observation, based from the patient’s response to touching on the injured site by the doctor. Usually, tenderness is based on indication or yelling by the patient. Non-tender simply means no painful response observed. Dr Law also commented that the wordings by different QEH doctors were the same or similar, intimating the possibility of copying. Nevertheless, Dr Law did accept that pain is a subjective personal feeling.

47.  Coming back to the NPRS test and the hand grip test.

48.  Dr Law said the NPRS test is subjective. Hence, it was not really useful. In this case, firstly, the pain chart for NPRS was not fully explained to the Plaintiff, as only the numeric scale explained but not the different faces. Further, it was only done on a single occasion. Hence, he decided to “give up” and did not feel the need to further explain to the Plaintiff it 6/10 was still too severe when he chose 6/10.

49.  Be that as it may, it has been said time and again that experts for the parties should assist the Court to get the full picture. Dr Law should have told Dr Chun that he considered 6/10 was still too high, and to have dealt with the matter in the Joint Medical Report. On the other hand, Dr Chun had at least recorded in the Joint Medical Report prompting by Dr Law after the Plaintiff had chosen 8/10 in the first place. Dr Chun of was not told and did not know of Dr Law's reservation.

50.  Dr Law also pointed out the Plaintiff said he had no experience with the NPRS test. However, it is noted that the Pain Intensity Chart of the Hospital Authority Kowloon Central Cluster, the Plaintiff was asked to indicate his pain on a scale of 0 to 10. Dr Chun said it is similar to the NPRS. In the Pain Intensity Chart, the Plaintiff indicated 4/10 on four occasions on 1^st and 2^nd of March 2017. Hence, it could not be said the Plaintiff had no experience of the NPRS test at all.

51.  Dr Chun opined that the Plaintiff was exaggerating do have support of the Plaintiff’s scoring of NPRS at 8/10 first, and even at 6/10.

52.  Be that as it may, the NPRS test at the joint examination is relevant in considering the Plaintiff’s truthfulness.

53.  The fact remained that the Joint Medical Report, an important document in a Personal Injuries case, did state that the Plaintiff’s NPRS score was 6/10 (indicating severe pain). If there were any doubt on the scale chosen, the experts (whatever side they have been retained) owes a duty to the Court to set out all the facts regardless of whether favourable or disadvantageous to the patient, warts and all. And the experts should exchange views on such matters, as that is what a joint examination for.

54.  Another test at the joint examination was the hand power grip test using the. The dynamometer has a spring contraption in the handle, and the patient is asked to grip the handle to measure the power of the hand.

55.  The dynamometer has five positions, position 1 the shortest grip distance, position 5 the longest grip distance, and position 3 designed to produce the highest reading.

56.  Dr Law accepted that the grip force measured would depend on the exertion of the patient. However, he opined that the Plaintiff was sincere and truthful in the power grip test. Dr Law said if the readings of the 5 positions plotted a curve in a bell shape, it tended to show truthfulness since it is difficult to fake a bell shape curve, whereas if the graph were in funny shape (eg a flat line), then it would not be truthful.

57.  The Plaintiff’s strongest position in the injured hand was 3 (20 kg or 44 lbs). Dr Law said that the Plaintiff’s test results showed a bell shape curve, hence, he was truthful.

58.  Further, Dr Law said that the results of the Plaintiff’s injured (right) hand were between 1/2 to 2/3 of the uninjured (left) hand. That was consistent with similar tests at Occupational Therapy department of QEH.

59.  On the other hand, Dr Chun pointed out that the results of the Plaintiff’s uninjured left hand plotted a skewed bell shape curve with the peak at position 2 instead of 3, arousing suspicions on his efforts in the test.

60.  It is noted that the results of the power grip tests at QEH for the uninjured left hand (at position 3 according to Dr Chun) on 6 occasions were between 1/3 to 2/3 of that during the joint medical examination.

61.  Dr Chun also commented that the Plaintiff’s slight reduction of the ring finger flexion should not have affected the grip power, as there was no wasting of the hand and upper limb muscles consistent with grip weakness.

62.  On the girth of both arms, Dr Chun pointed out the girth of the Plaintiff’s both forearm was 24 cm, and there was no wastage. Dr Law opined that being a right hand dominant person, the Plaintiff’s right arm girth could have been more. Dr Chun retorted that manual workers tend to use both hands, hence, the girth of the dominant hand might not be bigger.

63.  Dr Law accepted the longest scaffold tube weighed 13.2 kg, and the Plaintiff might be able to lift it sometimes, but not all the time. And any accidental dropping might be dangerous. Dr Chun said the Plaintiff could hold the tubes with both hands.

64.  Coming to Dr Ip, the private practitioner. Dr Ip’s report was very inconsistent with QEH. He painted the picture of more severe pain, pain and more pain, and he even queried the treatment of closed reduction with no improvement.

65.  The QEH records by different doctors successively showed tenderness, mild tenderness, minimal tenderness and non-tender from March to August 2017 before the consultation by Dr Ip on 25 August 2017. It was after Dr Ip’s consultation that the Plaintiff was first recoded to have complained of pain to Dr Ma of QEH in December 2017.

66.  Not only was Dr Ip never given the opportunity to look at the QEH records, he was not given the opportunity to reconsider his opinion after seeing the QEH record.

67.  Even Dr Law accepted in cross-examination that Dr Ip’s opinion that there was no improvement and hand function from the QEH treatment could not be right.

68.  Dr Ip’s opinion lacked the comparison with the comprehensive QEH records, hence, there was no explanation on the sudden change of face on pain by the Plaintiff after discharge from QEH. Hence, I do not find Dr Ip’s report helpful at all.

69.  The Plaintiff said he had to take painkiller. The QEH records showed that he was prescribed Panadol on 1 March 2017 and also on 27 April 2017, both on PRN or when needed basis. The Joint Medical Report recorded that at the time of the joint medical examination, the Plaintiff was not taking painkiller, and there was no other problem. Under cross-examination, the Plaintiff explained that the joint examination was done in October and he did not need painkiller at that time as the weather was warm.

70.  After having seen the QEH records, Dr Law still considered that the Plaintiff was truthful, and pain and weakness in the grip would deter him from resuming the pre-accident job.

71.  On the other hand, Dr Chun considered the Plaintiff was exaggerating his pain in the NPRS test, as that was inconsistent with no muscle wastage in the right arm. Granted the X-ray showed some deformity in the bowing or bending of the right metacarpal, shorter metacarpal bone in the right hand than the left, and the incomplete fist, Dr Chun considered that the Plaintiff’s injury was not serious, and based on his long experience in orthopaedics of about 40 years, that type of injury would have healed in 4 to 6 weeks. And the remaining deformity would not affect the Plaintiff’s hand capability.

72.  I considered that the Plaintiff’s credibility and his assertion of severe pain was much adversely affected by his assertion of wrong entries by the QEH doctors. Granted that there were the objective evidence of the X-ray and photos of the right hand, but they do not bear such preponderance to salvage the credibility of the Plaintiff.

73.  Mr Leung, counsel for the Plaintiff, submitted that the QEH records should be ignored, while Mr Wong, for the 1^st to 3^rd Defendants, submitted the opposite as they were compiled by different doctors independently in a public hospital with no axe to grind.

74.  The QEH records were compiled by 6 different doctors seeing the Plaintiff on 8 occasions. There observation of tenderness or not roughly coincide the occupational therapy at the relevant time. I see no reason why I should ignore them.

75.  Apart from non-tender stated in the QEH records, the Plaintiff in choosing 8/10 and then 6/10 was exaggeration. That could not be overlooked even by Dr Law. Although Dr Law tried to explain that the Plaintiff was perhaps inexperience and the explanation to the Plaintiff was insufficient, the Plaintiff had done such test 4 times picked 4/10 each time at QEH.

76.  In any case, I have commented on Dr Law’s response to the NPRS results above and it really leaves a lot to be desired for. Hence, I do find the Plaintiff exaggerating his pain in the NPRS tests at the joint medical examination.

77.  Dr Law agreed that the grip test would depend on the genuine assertion by the Plaintiff. Dr Law considered the Plaintiff sincere and truthful because the graph plotted by the 5 positions when using the right hand to grip the dynamometer showed a bell shape curve. Even ignoring the skewed bell shape curve of the uninjured left hand, the point on the bell shape curve could not salvage the lack of credibility of the Plaintiff.

78.  In theory, the Plaintiff’s injury might have deteriorated due to complication since discharge from follow-up consultation at QEH. But there was no such evidence of complication causing deterioration.

79.  In the event, even taking into account the X-ray and photos showing some shortening, bowing and bending of the Plaintiff’s injured hand, I accept Dr Chun’s evidence that the Plaintiff was exaggerating his pain and weakness and he could return to work as a rigger.

Quantum of Damages

I.  Pain and Suffering and Loss of Amenities (PSLA)

80.  In Lee Ting-lam v Leung Kam Ming [1980] HKLR 657, the Court of Appeal divided the award of PSLA into four categories: (1) serious injury; (2) substantial injury; (3) gross disability; and (4) disaster.

81.  In Lee Ting-Lam, serious injury covers cases which leave a disability which mars the general activities and enjoyment of life, but allows mobility to the victim, eg, loss of a limb replaced by a satisfactory artificial devise, or bad fractures leaving recurring pain. The range of awards in Lee Ting-Lam is of course outdated due to the passage of time.

82.  In David John Slater v Commissioner of Police HCPI 646/2012 (unreported, 7 July 2017), Bharwaney J revised the award for serious injury from $60,000 to $80,000 to the starting point of $530,000.

83.  The Plaintiff claims $350,000 for PSLA. Mr Leung referred to several cases for reference.

84.  In Mak Kam Po v Ever Gain Engineering Ltd & anor HCPI 37/2004 (unreported, 28 November 2005), the plaintiff was injured by an electric saw, suffering laceration on the back of the right hand with a fracture of the 2^nd metacarpal head. There were two operations: (1) debridement and repair of the tendon, and the (2) osteochrondral autograft of the head of the right 2^nd metacarpal from head of the 3^rd metatarsal of the left foot. The awards for PSLA was $450,000.

85.  In Lam Hung Yui v Muck Yun Chung HCPI 924/2004 (unreported, 7 August 2007), the Plaintiff fell from a ladder and suffered fractures of the right radial head and left distal radius. He was treated with open reduction and internal fixation for the right radial head, and closed reduction and external fixator for the left distal radius. The award for PSLA was $350,000.

86.  In Ng Shing Kwai v Chan Yu Chuen & anor HCPI 923/2001 (unreported, 7 September 2002), the Plaintiff fell from height and suffered multiple contusions of the right shoulder, elbow and back with bruising. There were pre-existing conditions of the right elbow and the back. The award for PSLA was $320,000.

87.  Mr Wong submitted that those cases were more serious than the Plaintiff, and his condition should be far below the lower end of serious injury category, and suggested PSLA at the most $100,000.

88.  In Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, Bharwaney J held that the whole person impairment assessment provides an objective frame of reference for the award if PSLA.

89.  Both experts had given a percentage of whole person impairment under the, 3% by Dr Law, and 0.5% by Dr Chun. Dr Chun said that his figure should have been 0%, but he just gave some leeway.

90.  The experts made the percentage assessment under the American Medical Association Guide (AMA), but the AMA guidelines were based mainly on objective evidence, and to ignore pain when inconsistent with other objective facts.

91.  Again, as the issue here is pain, it is ultimately for the Court to decide on whether the Plaintiff is truthful and credible by asserting there is pain affecting his work capability and not merely the percentages of impairment. And PSLA could take into account the facts of the cases as cross reference.

92.  The Plaintiff’s complaint was pain and weakness in the right hand with no other problems. His treatment was closed deduction and physiotherapy without surgery. His injury was less serious than the cases cited. QEH records showed no tenderness upon discharge from follow-up at QEH.

93.  Sick leave by the QEH doctors was until 17 August 2017 (ie half a year). The QEH records showed no more pain before he consulted Dr Ip. Taking into account the nature of the injury and treatment, the sick leave period (see further on sick leave below), and inflation, the award of PSLA should be $200,000.

II.  Sick Leave

94.  Sick leave by the QEH doctors was until 17 August 2017. Thereafter, the Plaintiff was granted further sick leave by Dr Ip.

95.  I have already pointed out the fact that Dr Ip had never seen the QEH records, nor was he asked to consider his opinion after seeing the QEH records. The QEH records were made by different doctors in the public sector, and documented a course of recovery commensurate with the nature of the injury. There was no evidence of any complications after.

96.  The MAB had endorsed further sick leave beyond the QEH. But the MAB’s duty was not to hear the evidence underlying any sick leave. Hence, the Plaintiff’s sick leave period should be until 17 August 2017.

III  Pre-trial Earnings

97.  The Plaintiff claimed that his average earnings between November 2016 to February 2017 was $26,650. Mr Wong submitted that taking into account the downward trend in the wages of riggers from Government statistics and MPF contribution, the figure should be $23,872.20.

98.  Mr Leung submitted that under the Practice Direction 18.1 for Personal Injuries para 67(6), the Defendants should have submitted the records of earnings of two workers comparable with the Plaintiff, but Mr Wong submitted that the Defendants’ records were lost.

99.  Mr Leung submitted an inference to hide by failure to produce evidence (see Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356; Hongkong and Shanghai Banking Corp v Chan Yiu-wah & anor [1988] 1 HKLR 457).

100.  Whether to hide evidence or not, there was no such evidence to contradict the Plaintiff’s evidence on the average wage. One would have expected the employer to have such evidence in the ordinary course of event. Hence, I accepted the Plaintiff’s figures.

101.  Mr Wong submitted that pre-trial earnings should be based on net income, but Mr Leung submitted that there is no authority for deduction of MPF contribution. I am of the view that MPF contribution is just an item of the Plaintiff’s expenditures notwithstanding it is mandatory. It is akin to an insurance premium. In the absence of clear authorities, MPF contribution should not be excluded from the pre-trial earnings.

102.  I shall adopt the figure of $26,650 per month. Given the sick leave period was from 1 March 2017 to 17 August 2017 only (170 days), adding 5% for MPF, the pre-trial loss of earnings is as follows: $26,650 x 170 days/ 30 x 1.05 = $158,567.5

IV  Loss of Future Earnings or Loss of Earning Capacity

103.  One important factor for consideration was the claim by the Plaintiff that he needed to climb height. Under Cross-examination, the Plaintiff admitted there was no need climb height. Hence, the assertion of the need to climb height is rejected.

104.  The Plaintiff’s duties were tying the metal scaffold tubes into a bundle for lifting up by the crane. The longest pole was about 11 ft (or 3.3 meter), and the weight was about 4 kg per meter, hence the weight of 13.2 kg. Even assuming the Plaintiff was genuine in the hand grip test at the joint medical examination, the strongest position in his injured hand (position 3) was 20 kg or 44 lbs. Further, Dr Chun suggested that there is no reason why the Plaintiff could not use both hands in handling the scaffolding poles.

105.  In any case, I do not find the Plaintiff was a credible witness. I take into account the QEH records and the Plaintiff’s assertions that the doctors ignored his severe pain and recorded non-tender, that he was exaggerating his pain in NPRS, and the hand grip test depended on the assessment on the Plaintiff’s truthfulness in doing the test.

106.  Granted that the X-rays and photos on the Plaintiff’s right hand did show some abnormality of bowing, bending and incomplete closure of 0.5 cm difference, I accepted Dr Chun’s opinion that would not affect the Plaintiff’s grip power. I accept Dr Chun’s opinion that the Plaintiff is able to return to employment similar to his pre-accident job.

107.  As I have found that the Plaintiff’s is able to return to his pre-accident job after the sick leave period granted by QEH, there is no loss of future earnings.

108.  I also find the Plaintiff suffers is no handicap in the labour market by reason of any residual symptoms, pain or otherwise. Hence, there is no loss of earning capacity.

109.  Mr Leung submitted that it is common practice to allow the Plaintiff a period after the end of sick leave to look for employment. Mr Leung referred to the period of 4 months in Leung Kwun Chuen v Li Shing Kong HCPI 749/2011 (unreported, 22 March 2013) and 3 months in Gurung Krishna Jang v Precious Swine Ltd HCPI 486/2009 (unreported 16 November 2010).

110.  Mr Wong did not seriously object to allowing 1 to 2 months for the Plaintiff to look for employment after sick leave.

111.  Having considered all the factors above, I shall allow a period of 3 months wages for job finding: ie $26,650 x 3 x 1.05 = $83,947.5.

V.  Special Damages

112.  The Plaintiff claims $19,000 for medical and travelling expenses.

113.  Mr Wong submitted that the Plaintiff did not need any further treatment after discharge from QEH follow-up. The visits to Dr Ip was part and parcel of his malingering in order to bolster his claim for damages.

114.  From what I have said above, I find the consultation and report by Dr Ip wholly unnecessary. Hence, such costs should be excluded.

115.  Mr Wong submitted that there was no detailed breakdown for $19,000, and was prepared to pay $2,500.

116.  Having considered the period sick leave by QEH, I considered the sum of $5,000 for travelling expenses and sundries, etc. is reasonable

Employee’s compensation

117.  The Plaintiff’s Employee’s Compensation was settled on 25 July 2018 at $471,600. That will be an contra item to the damages here.

Summary

118.  The summary of quantum of damages is as follows:

PSLA	$200,000
Past Loss of Earnings	$158,567.5
Future Loss of Earnings	Nil
Loss of Earning Capacity	Nil
Allowance for Job Finding	$83,947.5
Special Damages	$5,000
Sub-total	$447,515
(Employees’ Compensation)	($471,600)
Total	(Nil)

Interest

119.  Since the total amount of damages is less than the amount of Employee’s Compensation, I shall hear further submissions on interest.

Costs

120.  Likewise, I shall hear further submissions on costs.

121.  Lastly, I thank Mr Wong and Mr Leung of counsel for their helpful submissions.