HO MOH v. TAM YIU KEUNG t/a YIU SUN CONSTRUCTION ENGINEERING CO AND ANOTHER

CACV 3859/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3859 OF 2001

(ON APPEAL FROM HCPI NO. 1251 OF 1998)

____________________

____________________

____________________

J U D G M E N T

____________________

Hon Rogers VP and Le Pichon JA:

1. This is an appeal from an assessment of damages in a personal injuries action. On 18 January 2001, Master Lung awarded the plaintiff $414,594 in damages, some $235,000 short of the award in related employee compensation proceedings.

Background

2. The plaintiff was employed by the 1st defendant as a caisson worker on a construction site in Fanling. On 23rd April 1996, after he had been employed for about 2 days, the plaintiff was injured in an accident when he was working in a caisson. He was hit by a 4" x 4" wooden beam, which was about 6 to 7 metres long, weighing between 160 to 170 pounds, as he was bending down. At the time he was 43.

3. He was taken to Fanling Hospital and was then transferred to the Prince of Wales Hospital where he received medical treatment. Despite a broken helmet, he did not have a wound on the head but there was a 10x4 cm abrasion on the left side of his back. An X-ray of the chest and skull was done and that revealed no bony injury. He was discharged the same day.

4. An MRI examination was conducted very much later. That revealed a small disc prolapse at L3-4 level and there was a suggestion of a defect in the pars interarticularis of the L5 vertebra, both of which could have been caused by the accident.

5. The major treatment that the plaintiff has received seems to have been physiotherapy. The initial treatment was on 9 December 1996. The plaintiff is recorded as having had severe back pain and left leg numbness, aggravated by minimal degree of trunk movement. He could not sit for more than 10 minutes, nor stand for more 5 minutes and he squatted with much difficulty. After 15 sessions of physiotherapy treatment, there was marked improvement in the plaintiff's condition. He was found to have 70% relief of pain. Trunk movement was improved to the end range with minimal residual pain. Squatting was full and pain free. The sitting tolerance was increased to 1/2 hour. His last physiotherapy treatment was on 11 April 1997. Although, apparently, the plaintiff was aware that he could have sought further physiotherapy treatment, had he so wanted, he never had any further treatment. He also declined any suggestion of operative treatment, probably wisely, according to the medical evidence.

6. The plaintiff's pleaded case and his case at trial was that, as a result of his injuries, he still suffered persistent low back pain. Amongst other complaints, he was only able to walk for 20 minutes and he had difficulty in squatting. Having considered all the evidence (including a videotape referred to in paragraph 8 below) the master came to the inevitable conclusion that the plaintiff had exaggerated his injury and pain. On this appeal the plaintiff's case could only be put on the basis that there was intermittent pain.

7. In brief, the plaintiff was examined by 4 doctors. There was 1 orthopaedic specialist and 1 neurologist instructed for each party. The neurologist instructed on behalf of the plaintiff had said in his report that his findings, as a result of tests carried out on the plaintiff, "suggested some feigning of disability". Hardly surprisingly, that doctor was not called to give oral evidence. However, his report had been the subject of a hearsay notice and there was extensive reference to it during the course of the trial. Dr. Lam, the orthopaedic specialist who was called on behalf of the defendant went further. His report of 21 January 1999 referred to a number of instances where there were contradictory signs to the plaintiff's claimed back pain and sciatica. Having referred to them he said:

"All these cast doubt on the validity of his claims. There is a high suspicion of exaggerating of symptoms or malingering. It should be pointed out that an accurate assessment has to depend on the cooperation of the patient. If he is not showing his actual capacity, the result is not a reliable one."

8. On the day Dr Lam saw the plaintiff at his clinic, 13 January 1999, the plaintiff was video taped without his knowing it. The plaintiff was seen in the tape to be walking with his wife in Mongkok, shopping from 12:30 p.m. to 2:35 p.m. As recorded by the master, the plaintiff was walking in a normal manner without any difficulty or unease. He was again video taped without his knowledge on 20 and 21 January 1999. On 20 January, he was seen shopping with his wife. He was holding the shopping bags sometimes with one hand and sometimes with both hands. Sometimes he held the bags on one side; sometimes he put a bag over his shoulder. He walked around Mongkok on that occasion for 3.5 to 4 hours. On 21 January, the plaintiff was seen buying food in the market for about 30 minutes. During all these occasions, the plaintiff walked and moved in a normal manner as if he had suffered no injury. Dr Lam said in cross-examination that his conclusion was that he thought the plaintiff was exaggerating and might be faking completely.

9. Dr Woo, who examined the plaintiff on 27 January 1999, came to the following conclusion in his report:

"All the above discrepancies and inconsistencies defy neurophysiological and neuroanatomical principles. They raise the strong suspicion that the deficits were either feigned or grossly exaggerated for the purpose of the examination. They cast serious doubt upon the integrity and genuineness of his complaints."

Dr Woo's oral evidence was consistent with that and, indeed, the cross-examination did not seek to challenge this statement.

10. Finally it might be mentioned that Dr Lau, the orthopaedic specialist called on behalf of the plaintiff, was confronted with the videotape of the plaintiff walking around normally on the day he had been examined by Dr Lam. He then said in cross-examination:

"Q.	Now, can you tell from the movement of the plaintiff that he does not seem to be suffering from any pain or weakness or the kind of cramp of paraesthesiae alleged by him?
A.	he - he - he was not in cramp, and he's been walking quite well. So there is - or there should not be weakness of his legs. He cannot be in severe pain over his back.
....
Q.	So is it logical to deduce that when he complained of severe pain and weakness in his leg or severe pain over his lower back, it's exaggeration or even feigning of the disability, feigning of the symptoms or malingering?
A.	Well, I can only say that he - he can - his back was in a much better condition than he has been complaining of, and much better than at the time when I saw him in June 98."

11. As noted above, the MRI examination revealed a small disc prolapse at L3-4 level and there was a suggestion of a defect in the pars interarticularis of the L5 vertebra, both of which could have been caused by the accident. In relation to the prolapse Dr Lau said:

"Well, in - in this case he - he - he does have a small disc prolapse on the left side at the L3/4 level. But whether this is the - the cause of the left leg pain, I - I - I cannot say definitely, because the disc prolapse is not that big and it's not causing an obvious compression on the nerve."

12. All the doctors expected the plaintiff's back pain to improve further with an intensive course of conservative treatment including medication, physiotherapy and swimming on a regular basis. The master assessed the damages on the basis that the plaintiff could return to his pre-accident work. It is understandable that he may have considered that that was appropriate, because there was certainly evidence that the plaintiff could return to work. For example, at the end of his cross-examination, after he had been shown the videotape referred to above, Dr Lau said:

"Q.	Now, with this kind of injury do you think it's the appropriate sick leave period for the injured person - for the plaintiff to recover before he can resume employment? Dr Woo has mentioned one of 12 months is usually the gradual recovery for such kind of injury. What is your view?
A.	Well, I - I would take it as anything from six ...
Q.	Now, bear in mind in January 99 he had been seen walking normally, in a perfectly normal manner. Do you agree 12 months is one of a fair estimation?
A.	Well, anything from one to two years.
Q.	Between one to two years.
A.	Yes.
Q.	So shall we say 18 months, take an average.
A.	Yes.
Q.	Now, if one ruled out his leg problem as alleged by him -- and when we have the benefit of seeing the tape of his condition, mobility, do you agree that he can, in fact, resume his pre-accident type of construction heavy manual labour work?
A.	In January 99?
Q.	Yes.
A.	Well, based on my - my -- 99. Well, if - if the condition of his back was - was - remained in such satisfactory condition in that period of time, then I think it's logical - it's reasonable for - it's possible for him to go back to - to the trade.
Q.	To his pre-accident heavy manual labour work.
A.	Yes."

13. The other doctors also expected the plaintiff to have returned to work. In so saying, Dr Lam accepted that the plaintiff might have "some degree of back pain". Dr Woo, too, said that he had to give the man credit that he had some pain. He said he did not think it was severe and he thought that there might be a 5% disability, meaning that the plaintiff might not be able to work all the time because of intermittent pain. In re-examination he said:

"Q.	Now, after viewing the films, the MRI scans and after your examination, do you expect this man, though we accept he has some pain, to go back to heavy manual labour work in the site?
A.	I think he should be able to do so. I think he should, and then he probably given intermediate rests in between during the working day. I think I've been asked this question about this loss of earning capacity, which is always the most difficult thing. I think this is for your Lordship to decide. And when a solicitor asked what is -- we are often asked this question and then we are sort of forced to give a figure. The thing which I look at - I mean, maybe if I am allowed to explain why I say 5 per cent, is that I look at the amount of time that he is in pain, and so if he has got it say 10 times a month, lasting up to say half a day, or the maximum, that means he would probably give them five days a month, so he has got five days a month that he can't work, but in this case there should be something like 15 per cent - five days out of 30, but as I say that because I don't believe that he's that severe and so therefore I have to make allowance for cutting down the loss of earning capacity. That is the way I put it, but that is only my calculation because there's no guideline whatsoever as far as I'm aware, all right, as distinguished from loss of a leg, where there is the ECC - Employees Compensation Ordinance - providing a sort of -- sort of an appendix where we can have some guidelines.
Q.	Yes, discussing the percentage.
COURT:	Do you take into consideration the intensity of the pain?
A.	Yes, we do. I think that the whole thing put together, the pain, how bad is the pain, whether he is genuine, you see the genuineness of his complaint is also coming into the picture, the duration of the pain, how many days he's on and off and then what he can do with the rest of the time and all things put together, all right, so that it's just an arbitrary figure. I mean, I have no -- I am unable to say that it has to be correct or incorrect."

14. Whilst there was, therefore, evidence which went to the plaintiff's ability to return to his pre-accident work, that was on the basis that he may not be able to undertake heavy manual labour on a continuous basis. Given the realities of the working world and the existence of a partially prolapsed disc, the approach of viewing the plaintiff as somebody who could return to his pre-accident heavy manual labour was, perhaps, too strict. It would be safer to approach the matter on the basis that the plaintiff could have returned to work 2 years after the accident but on the basis that he would not be undertaking heavy manual labour.

The award

15. The master approached the assessment of damages on two alternative bases. He was of the view that the plaintiff could have resumed heavy duty work 2 years after the accident and would suffer no loss of future earnings. On that basis, he awarded the plaintiff $414,594. In the event that he was wrong about that and the plaintiff did suffer a loss of earnings, the master assessed the loss at $1,000 per month which would result in an award of $568,907. We now turn to consider the specific challenges made by the plaintiff to the master's award.

Pain and suffering and loss of amenities (PSLA)

16. The master awarded $150,000 under this head. Mr Wright complained that it was far too low. He submitted that the injuries sustained by the plaintiff was at the lower end of the serious category and that it should attract an award of $345,000. No authority was cited in support.

17. It is evident that in arriving at the figure of $150,000, the master took into account his findings of the plaintiff's injuries including, importantly, the fact that the plaintiff was a malingerer and had exaggerated his injury and pain. The cases relating to back injuries cited by the master show that PSLA awards of $300,000 or more were for injuries that were far more serious, each involving compression of the nerve root and a back operation. The master considered that the injuries sustained in the present case were more akin to those in Lee Yuk Lan v Royalette International Limited PI 187 of 1995 and Chair Sai Sui v International Country Club Limited and others PI 522 of 1998, where the amount of PSLA awarded was $150,000 in each case.

18. Mr Wright has not shown that those cases are not comparables or that the master was wrong to follow them. There is thus no reason to disturb the master's award of $150,000 for this head of claim.

Pre-trial loss of earnings

19. The plaintiff's pre-trial loss of earnings was calculated by the master on the basis that he was in a position to resume his previous work two years after the date of the accident. In our view, the master was perfectly entitled to take that view despite the fact that the plaintiff had medical certificates for a three-year period from the date of the accident. As noted above, the plaintiff had no further treatment a year after the accident. Although there was residual pain of 30%, the medical evidence was that his condition would continue to improve over time. The master thus allowed for another year for him to recover. Even the plaintiff's own expert Dr Lau was of the view that someone with the plaintiff's injuries should fully recover in the sense of stabilising his condition within two years of the accident.

(a) The two-year period from the date of the accident

20. The master assessed the loss at $362,635 for the two-year period. He accepted that for the period from the date of the accident (23.4.1996) to 31.12.1996, but for the accident, the plaintiff would have earned $630 a day. It emerged from the evidence that built into the $630 was $210 for two hours' overtime. That was the practice in the trade whether or not the 2 hours had to be worked. The basic pay was approximate to what an unskilled labourer on government projects was earning at the time, namely, $481 per day. The master rejected the plaintiff's claim that he was working 28 or 29 days a month at the time of the accident and found that he was working, on average, no more than 26 days a month. Mr Wright eventually conceded that he could not challenge that finding. The loss up to the end of 1996 of $135,135 is no longer controversial.

21. Commencing 1 January 1997, it was not possible to continue manual caisson work because of a change in government regulations. For the balance of the two-year period from 1 January 1997, the master relied on the evidence of Mr Wong Shu Keung and Mr To Chun who were caisson workers employed at the same site and who had worked with the plaintiff. After the change in government regulations, Mr Wong and Mr To became casual workers at construction sites doing masonry work. The master used their earnings for that period as a guide to what the plaintiff would have earned had he not been injured.

22. The statistics of the Census and Statistics Department ("government statistics") showed that the average wage of unskilled labour at construction sites in July 2000 was $600 to $610 a day. The master noted that these figures reflected the average daily wages of workers engaged in government building and construction projects only. They were considerably more than what Mr Wong and Mr To had been earning since 1999 which was $450 a day, working 20 days on average per month. The master sought to explain the difference on the basis that those shown in the government statistics were wages paid by the main contractor and what was paid out by the sub-contractor was considerably less, noting that the 1st defendant who had employed the plaintiff was a sub-contractor.

23. Mr Wright attacked the master's reasoning on the following grounds: first, he submitted that the plaintiff had more skills than Mr Wong and Mr To and was therefore capable of earning more than them. He drew attention to the fact that the plaintiff was capable of making a metal mould and in fact was doing so at the time of the accident when neither Mr Wong nor Mr To could perform that task. The plaintiff's evidence was to the effect that, prior to the accident, he could perform jobs such as draining, making wooden formwork, pouring concrete and bricklaying. Nevertheless it was not suggested that the plaintiff was a 'master' in any of those trades in the sense of having passed the necessary examinations and obtaining the relevant certificates.

24. It is to be noted that no evidence was adduced as to the plaintiff's earning capacity prior to the date of the accident. Whilst he may be more versatile than either Mr Wong or Mr To, there was no evidence to show that his additional 'skills' enabled him to earn more than them. Indeed, at the date of the accident, according to the government statistics, a skilled drain layer, bricklayer or concretor was capable of earning much more than $630 a day. The fact that the plaintiff had the same kind of job as Mr Wong and Mr To is therefore quite telling: presumably the plaintiff would not have taken up that job had better paid work been available and he had been competent to do it.

25. Mr Wright further submitted that the master was wrong in his interpretation of the government statistics in that he had no basis for finding that sub-contractors paid their employees less than what main government contractors paid on government projects. He adduced evidence from the Statistics Department obtained after the date of judgment (which was admitted into evidence under the Ladd v Marshall principle) to the effect that that Department did not have any evidence to indicate that wages offered by the sub-contractors were any different from those offered by the main contractors.

26. It would appear that the master's view was not based on any evidence that was before him and in the light of the fresh evidence, he was clearly in error. However that error has no practical effect for the following reason. The master was not obliged to adopt the figures shown in government statistics if he had other equally reliable evidence. There is no basis for saying that the master was wrong in accepting the evidence of Mr Wong and Mr To as being more in tune with reality. They worked in the private sector as to which no statistics are available. The master rightly concluded that they were not partial witnesses given that they were no longer working for the defendant and had no axe to grind. Accordingly, the plaintiff's challenge to the master's calculation of the loss of earnings during the two-year period fails.

(b) From 23.4.98 to 30.11.00

27. The master did not award the plaintiff any loss of earnings after the two-year period because of his view that by that date the plaintiff could have resumed heavy construction work. But, as noted above, he also approached the question on an alternative basis i.e. that the plaintiff did suffer a future loss of earnings. He assessed those on the basis that, like Mr Wong and Mr To, the plaintiff (had he been able to resume heavy work,) would have been able to earn $9,000 a month (at $450 a day, working on average 20 days a month). The master considered that the work the plaintiff was capable of doing after the accident if heavy manual work was ruled out was as a security guard or watchman or cleaner. The government statistics showed that the average monthly wage for a cleaning worker in 2000 was about $8,000. The loss in earnings was therefore assessed at $1,000 per month.

28. Mr Wright submitted that the plaintiff's notional salary should only be $6,000 and not $8,000 a month. However, he was unable to substantiate the $6,000 figure. There was no evidence in support and Mr Wright eventually conceded that he could not seriously dispute the $8,000 figure adopted by the master. That being so, the challenge to the master's assessment of future loss of earnings also fails.

Loss of earning capacity

29. The plaintiff sought 12 months' wages for loss of earning capacity. The master awarded him 6 months' wages but in his calculation the master based it on the earnings of a cleaner i.e. $8,000 per month rather than that of an unskilled construction site worker of $9,000 per month. The defendant conceded that the master should have used the $9,000 figure for his calculations. Given the defendant's concession, the amount should be adjusted to $54,000. As for the period of 6 months the master considered appropriate, the plaintiff has not advanced any basis for disturbing the master's decision.

Conclusion

30. The only adjustment shown to be necessary to the master's award of $568,907 made on the alternative basis is for loss of earning capacity in the sum of $6,000. Since the amount as adjusted is still some $75,000 less than the amount of employee compensation received, the plaintiff is not entitled to any common law damages.

31. The appeal falls to be dismissed. We would also make an order nisi for costs in favour of the defendant.

Hon Yuen JA:

32. I agree.