LAU PAI YAM BOTTOMLEY v. TAI TUNG COFFEE CO LTD

HCPI 745/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 745 OF 2002

____________

____________

_______________

J U D G M E N T

_______________

1. The Plaintiff, now aged 53, claims damages for injuries he sustained on 6 October 1999 while in the course of his employment as a lorry driver with the Defendant. Although the physical injuries sustained by the Plaintiff were relatively minor (fractures of the base of the his right foot), it is alleged that as a result of the 2nd and 3rd metatarsal bones in accidentchronic pain syndrome and a chronic adjustment disorder , he is now suffering from with depressive mood preventing him from returning to work.

The Accident

(i) The Plaintiff's account

2. The accident occurred at around 5:30 p.m. in Nelson Street, Mongkok in the course of the Plaintiff's lorry delivering 30 kg bags of sugar and other supplies to the Defendant's customers.

3. It was the evidence of the Plaintiff that up until May that year, two lorry attendants were always assigned to his vehicle and they would perform the delivery of the goods from the lorry to the customers' premises. From May onwards, there were often days when only one attendant would be assigned to the lorry and on these occasions, in order to compensate them for the extra work involved, he and the one attendant on the vehicle would be each paid an extra daily allowance of $75.

4. The day of the accident, 6 October 1999, was such a day. The attendant involved was known as Tai Kau Shek (Big Rock). Being the person responsible for the actual delivery of the goods from the lorry to the customers, Big Rock would be the person to decide how many of the bags or boxes which the Plaintiff had passed down to him from the lorry he would stack upon a trolley. When only one attendant was attached to the vehicle, that attendant would have to stack a greater quantity of goods on the trolley in order to complete the deliveries for that day. Even taking this into account, completion of the day's deliveries would take significantly longer than when two attendants were present. Instead of completing the deliveries by 4 or 5 p.m., the earliest the deliveries could be completed would be 7:30 p.m.

5. The Plaintiff's evidence is that on the day of the accident, Big Rock had stacked ten 30 kg bags of sugar onto the trolley. The Plaintiff had then jumped down from the lorry to assist Big Rock to tip the trolley so that Big Rock could wheel it away. On this occasion the Plaintiff took the handles at the back of the trolley while Big Rock lifted the base. While doing this, Big Rock, who was wearing "flip flops" on his feet, slipped forward onto the trolley causing the trolley to fall back towards the Plaintiff striking the top of his right foot and his left thigh.

6. When he reported the accident to his superior, Mr See Sun Kong, Mr See had said words to the effect that if he was not "done for" he should complete the delivery round. Despite the fact that he was in very great pain and the dorsum of his foot had swollen up, he completed the delivery round. When he arrived at the Defendant company's premises and went to show Mr See his injuries, Mr See had told him to park the vehicle first.

(ii) Assessment

7. There was no evidence to contradict that of the Plaintiff regarding how the accident occurred. Tai Kau Shek (Big Rock) was not called as a witness.

8. In his 2nd Supplemental Witness Statement, Mr See Sun Kong said that the Plaintiff had never mentioned to him that the cause of the accident was because Big Rock had been wearing slippers and had slipped. He did not, however, suggest that the Plaintiff had given any contradictory account of how the accident occurred. It is clear from the Form 2, Notice of Accident to the Labour Department, completed by Mr See that he must have been told by the Plaintiff that the trolley had fallen over and struck his right foot and left thigh as the Plaintiff alleges. There was nothing in the medical reports to lead me to believe that the Plaintiff was giving contradictory accounts of how the accident occurred. It is understandable that the doctor's description of the history of the accident would not go into specifics. The doctors were concerned with the nature of the injury, not how it was caused.

9. I did not consider that there was anything inherently improbable in the Plaintiff's account of the respective roles played by himself and Big Rock, namely, that he himself had been the person to push down on the handles of the trolley while Big Rock lifted the base. Big Rock would then take over the handles of the trolley when the trolley was balanced at the correct angle. Nor in my view was there anything improbable, if Big Rock had to assist him in tipping the 300 kg load, in Big Rock slipping bearing in mind that he was wearing flip flops. Bearing in mind also the Plaintiff's evidence that the whole procedure of tipping the trolley would happen at speed, there would be nothing surprising in Big Rock falling onto the trolley resulting in its tipping back onto the Plaintiff.

10. There were inconsistencies in the Plaintiff's evidence as to which part of the trolley had hit his foot, but that also is not surprising given the circumstances. He would have been much too pre-occupied with the pain to be concerned whether it was the handle or the vertical bar of the trolley which had hit his foot.

11. I accept that the injury to the Plaintiff was caused by his fellow employee, Big Rock, slipping forward onto the trolley causing it to fall back onto him.

12. It is unnecessary for me for the purpose of this case to decide whether an unexplained slip by a fellow employee is prima facie evidence of negligence for which the fellow employee's employer is responsible.

13. In this case, the Defendant has provided no explanation as to how the slip occurred. I am satisfied that in such circumstances, it is probable that the slip and therefore the accident occurred because of Big Rock's negligence. He was wearing wholly unsuitable footwear for performing the job he was then undertaking. As a result, he slipped forward onto the trolley which he had overloaded causing it to fall back onto the Plaintiff. I did not accept Mr See's evidence that the quantity of goods to be delivered would be adjusted to reflect the fact that only one attendant was assigned to the lorry. Mr See was not the person responsible for allocating the goods to be delivered. The Plaintiff and Big Rock would not have each been given an extra daily allowance of $75 if their work load was to remain the same. In the circumstances, the Defendant should have anticipated that if Big Rock was to be the only person to effect the delivery from the lorry to the customer as was the case, then he was likely to place heavier loads onto the trolley than would otherwise be the case, and than might be safe. It was foreseeable that if it was loaded with 10 x 30 kg sacks of sugar, then it would be more likely to tip over and cause injury if it did so.

14. I am satisfied that the Defendant was directly in breach of its duty to the Plaintiff in failing to ensure that Big Rock was wearing suitable footwear and in causing an excessive load to be placed on the trolley. It was also vicariously liable for Big Rock's negligence in slipping forward occasioned by the fact he was wearing unsuitable footwear.

15. While contributory negligence on the part of the Plaintiff was pleaded in the Defence, it was not suggested to me by Mr Gidwani in argument that there was such contributory negligence. I am satisfied that there was none. Big Rock was the person who would effect the delivery from the lorry to the customer. It was he who decided how many bags to place upon the trolley and how they should be stacked. The Plaintiff was at that stage simply handing down bags to him. The Plaintiff cannot bear any responsibility for the fact that Big Rock slipped and caused the accident.

Medical Treatment

16. The Plaintiff took a taxi to United Christian Hospital (UCH) and was admitted after an X-ray revealed the fractures to his 2nd and 3rd metatarsal bones. He was discharged after a week on 13 October with his foot in a plaster cast. The plaster cast was replaced by a splint about three weeks after the accident.

17. He was followed up in the Orthopaedic Clinic at UCH. Despite receiving physiotherapy and occupational therapy, the Plaintiff continued to walk with a stick and complained of persistent right foot pain. As a result, he was referred to the Pain Clinic at UCH on 10 May 2000. He reported that he had been "very distraught and suicidal because of the pain". In addition to drug treatment, he was referred to the Podiatry Department of UCH where he was seen on 5 July 2000. He was prescribed clinical paddings and custom made insoles for his shoes to alter the metatarsal positions and re-distribute pressures from the affected region. On examination, it was found that he had, inter alia, "mild muscle wasting over his right calf muscle", "local tenderness and swelling over dorsum of right 3rd and 4th metatarsals without erythema or increase in temperature" and "mild bilateral hallus valgas deformity with slight retraction of right 3rd and 4th toes". He was complaining of "radiating pain over the dorsum of his right foot after walking for about 30 minutes" and in October 2000, he also complained of left heel pain.

18. In the middle of 2001, the Plaintiff started to suffer from low back pain. He was scheduled to have an operation for fusion of the deranged joint in his right foot in August 2001 but ultimately he decided not to have the operation.

19. In September 2001, he was referred to the Haven of Hope Hospital for chronic pain rehabilitation. By then his complaints were widespread. Doctor Chui Tak Yi stated that at the time "the chief pain site involves the entire right leg, spreading from the buttock, thigh, leg to the foot. The nature of the pain is numbing, distending pins and needle sensation, spastic. It would come on episodically and suddenly and very intense. Each attack might last for hours and there was only short periods of less pain in between those attacks. When he presented to me, he would sit on his left buttock only to avoid pressure on his right buttock. Other pain complaints included pain of left leg, left chest and headache".

20. On follow-up he was found to have symptoms of anxiety and hyperventilation at times. He was emotional and moody. He could not cope with the unpredictability of his pain.

21. Even when seen at the Haven of Hope Hospital on 15 May 2002, he was complaining of suffering severe episodic attacks of pain in his right leg each day, of being unable to sit for more than 2 minutes, and of being wakened by the pain in the night.

22. He had been referred to the Psychiatric Service of UCH in December 2001 where he was provisionally diagnosed as suffering from adjustment disorder with prolonged depressive reaction. In May 2002, he was complaining to the Psychiatric Service of UCH, as he had been to Haven of Hope Hospital, of an inability to sit.

23. When giving evidence in court, the Plaintiff described his present symptoms as numbness and pain and a feeling of lack of strength in his foot, aching in his lower back and a discomfort all over his body. Although he managed to sit in court throughout the trial without apparent difficulty, he maintained that he was sitting on his left buttock. He said that he was overwhelmed by fright and anxiety as to how long the illness would carry on.

Orthopaedic Condition

24. For the purpose of this litigation, he was seen by two orthopaedic surgeons, Dr Lau Hoi Kuen and Dr Danny Tsoi. Their reports were before the court. Both noticed significant exaggeration in the Plaintiff's complaints. They noted in particular the lack of muscle wasting in his right thigh and calf. It was apparent from their reports that the cause of the most serious of the Plaintiff's complaints was not orthopaedic. They did not, however, dismiss orthopaedic disability completely.

25. Dr Lau's view was that the Plaintiff's recovery from the fracture of his metatarsal bones had been poor. Most patients should have made a good recovery after 6 months. He referred to the unusual degree of swelling a long time after the accident. He considered there was probably pain arising from damage to the corresponding tarso-metatarsal joints due to the proximity of the fracture to the base. While there was significant psychological overlay, he considered that because of pain arising from post-traumatic arthritis of the tarso-metatarsal joints of the right foot, the Plaintiff would have difficulty in prolonged walking and standing especially if carrying heavy objects.

26. Dr Tsoi said that the X-ray had revealed deformed base of the 3rd metatarsal bone which was obviously due to mal-union of the fracture and this could explain local pain over the foot when pressure was applied. He however found no orthopaedic reason for the alleged diffuse pain and weakness of the whole of the right leg and back. While he conceded that from an orthopaedic point of view, the Plaintiff was capable of resuming the occupation of a driver, he ruled out any occupation requiring prolonged standing or climbing.

Psychological Condition

27. Expert evidence of the Plaintiff's psychological state came from Dr Char Nie Chen (called by the Plaintiff) and Prof. Peter Lee (called by the Defendant), both of whom gave evidence at the trial. Both commented on the inconsistencies and exaggerations in the Plaintiff's complaints. These included the contrast between his answers given in Beck's Tests and his actual ability to cope with day-to-day existence, the contrast between his alleged inability to sit without severe pain and the fact that nonetheless he did sit for long periods either watching television or in court and the contrast between his alleged difficulties in walking and what appeared in the video films taken by the Defendant of the Plaintiff in the street in December 2001 and October 2002.

28. Although he admitted that exaggeration by a patient caused difficulty in diagnosis, Dr Chen did not find the exaggeration inconsistent with his diagnosis that the Plaintiff was suffering from chronic pain syndrome and a chronic adjustment disorder with depressive mood as a result of his foot injury.

29. Dr Chen's opinion was that the severe foot pain suffered by the Plaintiff which persisted for an unusually long time despite attempts to treat it, coupled with aggravating features such as his anger at the unsympathetic attitude of Mr See towards him, both at the time of the accident and thereafter, probably resulted in adjustment disorder which led to symptoms of anxiety, depression and insomnia which themselves aggravated the symptoms of pain. One of the symptoms of the adjustment disorder would be what he described as "the sick role" (i.e. the Plaintiff genuinely believing himself to be a sick person).

30. The exaggerations in the Plaintiff's account could be accounted for by a combination of factors including his sick role, his concern about whether he would recover and the impending litigation. He commented that the slow speed at which the Plaintiff was walking at all times in the Defendant's video film indicated that there was indeed something wrong with the Plaintiff, even though he might be exaggerating the symptoms he felt. He further commented that the symptoms of depression and anxiety caused by an adjustment disorder could have aggravated the Plaintiff's pre-existing low back pain which led to pain in other areas.

31. Prof. Lee's principal area of disagreement with Dr Chen's diagnosis was that before he could have an adjustment disorder, the Plaintiff had to be suffering from a significant "stressor". Although Dr Chen had accepted the Plaintiff's account of suffering severe pain, Prof. Lee considered that the inconsistencies in the Plaintiff's account and the atypical nature of his complaints cast doubt on whether the Plaintiff suffered pain severe enough to amount to such a stressor.

Assessment to the Medical Evidence

32. I am satisfied on the evidence that Dr Chen was justified in coming to the conclusion both that the Plaintiff suffered severe foot pain as a result of the accident, and that it continued well beyond the period within which it ought to have recovered. Dr Lau Hoi Kuen accepted that the Plaintiff had not recovered from the injuries as would normally be expected. In July 2000 (9 months after the accident), the podiatrist at UCH noted physical signs of lack of recovery. Both orthopaedic doctors at UCH were contemplating surgery in February 2002 (more than 2 years after the accident). In May 2002, Dr Lau Hoi Kuen accepted that the Plaintiff was still suffering from pain arising from damage to the corresponding tarso-metatarsal joints due to the proximity of the fracture to the base. Dr Danny Tsoi who had examined him 3 months earlier (but still more than 2 years after the accident) found mal-union of the fracture of the 3rd metatarsal bone. The fact that in the notes from Haven of Hope Hospital, the Plaintiff was at one time asking for amputation indicates the severity that the pain he was then suffering.

33. I consider that there is ample evidence from the hospital reports to support Dr Chen's conclusion that the severe pain led to adjustment disorder and chronic pain syndrome, which in turn aggravated his pre-existing condition. I accept that the back pain felt by the Plaintiff and the other pains that followed therefrom were probably results of the Plaintiff's inability to adjust to the severe pain in his right foot and the adjustment disorder that followed.

34. I accept that the Plaintiff, as a result of his adjustment disorder (which resulted from the accident) genuinely believes that he is a sick man. I have no doubt, however, that many of his current complaints are greatly exaggerated. He is not, however, malingering. I accept that the intensive treatment as an out-patient suggested by Dr Chen in his letter of 9 May 2003 is essential to ensure that he does not continue to believe that he is a sick man.

35. I find that it was foreseeable that the Plaintiff might suffer physical injuries as a result of the Defendant's breach of duty and that those physical injuries might lead to psychological harm.

36. I consider that his psychological state resulting from the accident has prevented him resuming work up until now. Following his treatment, the Plaintiff should be able to perform any work that does not require prolonged standing or the carrying of heavy weights or climbing. He could not return to his previous job as that involved lifting work in addition to driving. I consider that he would be capable of working as a chauffeur or assuming any other driving job that did not require the lifting of weights. He would be capable also of working as a messenger or a carpark attendant.

37. The evidence of Mr See Sun Kong is that the Defendant now employs a driver performing the same job as the Plaintiff at $9,600 per month (i.e. a basic salary of $9,300 + an allowance of $300 per month). I accept his evidence that the Defendant company has ceased to pay a Chinese New Year bonus since 2001, and that the Defendant has ceased paying the $75 per day bonus since the end of 2000. I find that the Plaintiff's earnings had he not had the accident and had he continued in the employment of the Plaintiff, would have now been $9,600 per month.

38. At the time of the accident, the Plaintiff's salary was $9,000 per month with a New Year end bonus equivalent to one month salary plus a diligence bonus of $300 per month. He also received an extra allowance of $75 per day if only one attendant was assigned to his lorry. In his Statement of Damages the Plaintiff alleged that this occurred about 10 times per month on average. In evidence, he said "more than 15 times per month". Mr See, on the other hand, said it was only 1 or 2 times per month. The Defendant has produced no records of these payments. If they were as infrequent as Mr See alleges, I believe that the Defendant would have sought to produce some kind of record to show that this was so. It has not done so. On the other hand, the Plaintiff's evidence is inconsistent. In the circumstances I regard a figure of 7 days per months as being more likely to reflect the true number of days this allowance was paid than the estimates of the Plaintiff and the Defendant.

39. The Plaintiff's remuneration at the time of the accident was therefore $10,575 per month ($9,000 x 13/12) + $300 + $525.

40. He has been on sick leave continuously since the accident. As I said, I find that it is reasonable that he should not have worked during that period.

Pre-trial Loss of Earnings

41. His pre-trial loss of earnings are therefore ($10,575 + $9,600) x 1/2 x 47 months less $176,355 which he has received by way of periodical payments from the Plaintiff = $297,757.

Pre-trial Loss of Mandatory Provident Fund Benefits

42. His pre-trial loss of mandatory provident fund benefits from December 2000 to trial are ($10,575 + $9,600) x 1/2 x 33 months x 5% = $16,644.

Loss of Future Earnings and Mandatory Provident Fund Benefits

43. As I have said, the Plaintiff should undergo the more intensive treatment recommended by Dr Chen for a further 6 months. During that period, he will be unable to work.

44. During that 6-month period, his loss of earnings and mandatory provident fund benefits would be $9,600 x 1.05 x 6 = $60,480.

45. After that 6-month treatment, I consider that he should be able to obtain a job as a driver in a job that does not involve any lifting. He could also obtain less well paid work for instance as a messenger, a carpark attendant or shop assistant. I consider that as a driver he should be able to earn $6,500 resulting in a monthly loss of earnings of $3,100 ($9,600 less $6,500). Apply a multiplier of 7 his future loss of earnings and mandatory provident fund benefits would be ($9,600 - $6,500) x 1.05 x (7 x 12 - 6) = $253,890.

46. His total loss of future earnings and mandatory provident fund benefits would therefore amount to $314,370 (i.e. $60,480 + $253,890).

Loss of Earning Capacity

47. Because he will continue to have mild orthopaedic disability, he will suffer some disability in the labour market. I award him $21,700 under this head ($3,100 x 7).

Special Damages

48. A sum of $40,500 has been agreed in respect of medical expenses, chiropractor's and bone-setter's fees and travelling expenses. The Plaintiff claims that about $3,000 per month was expended in the first two years on bird's nest, fish maw and special soups. These items were purchased by his wife and mother-in-law. He cannot produce any receipts for these expenses. Despite the lack of receipts and the fact that these items were not purchased on the advice of any western medical practitioner, I consider it reasonable to allow a sum of $1,000 per month in respect of this expenditure i.e. $24,000. The total award for special damages is therefore $64,500.

Future Medical Expenses

49. I allow the Plaintiff the sum of $54,000 in respect of the psychiatric treatment recommended by Dr Chen on the basis of 3 visits to a psychologist per month at $3,000 per hour over 6 months.

Pain, Suffering and Loss of Amenities

50. The injury to the Plaintiff's foot resulted in severe pain for a long period which in turn led to chronic pain syndrome and adjustment disorder with depressive mood. The depressive disorder led him to exaggerate his symptoms, nonetheless he genuinely regarded himself as a sick man for 4 years.

51. The depressive order should resolve itself after the further treatment recommended by Dr Chen and the end of this litigation. Nonetheless he will continue to suffer some discomfort in his right foot as a result of these injuries. His injuries do not fall within the "serious injury category" in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 670. I consider that the sum of $300,000 is the appropriate level of damages under this head.

52. I quantify the Plaintiff's losses as follows:

Pain, Suffering and Loss of Amenities	$300,000
Pre-trial Loss of Earnings	$297,757
Pre-trial Loss of Mandatory Provident Fund Contribution	$ 16,644
Loss of Future Earnings and Mandatory Provident Fund Benefits	$314,370
Loss of Earning Capacity	$ 21,700
Special Damages	$ 64,500
Future Medical Expenses	$ 54,000
	$1,068,971

53. Accordingly I give judgment for the Plaintiff in the sum of $1,068,971 plus interest on damages for pain, suffering and loss of amenities from the date of service of the writ until today and thereafter at judgment rate until payment, and interest on special damages and pre-trial loss of earnings at half the judgment rate current from time to time from the date of accident until today and thereafter at judgment rate until payment.

54. I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 14 days, the Plaintiff's costs be taxed and paid by the Defendant.