CHAN KWAI SUM v. ULTIMATE ENGINEERING LTD

HCPI309/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.309 OF 2003

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JUDGMENT

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1. This is a claim by the plaintiff against his former employer, the defendant, for damages as a result of injuries sustained by the plaintiff in carrying out paint stains scrapping work on 28 July 2000.  

2. At the material time the plaintiff was employed by the defendant to work at the University of Science and Technology in Sai Kung.  On 28 July 2000, the plaintiff was asked to remove paint stains on the floors of a corridor in one of the buildings on the site.  The corridor was about 200 odd feet long and about 5 feet wide.  It was covered by paint stains on the floor as a result of painting works carried out at an earlier time on the walls of the corridor.  Because these paint stains had dried, the plaintiff had to scrape off the paint stains on the floor of this corridor.

3. It is the plaintiff’s case that he had been working for some 20 odd days before 28 July 2000 in this painting project at the University.  He was engaged by the defendant as a painter.  However the painting work undertaken by him did not include this corridor in respect of which he was asked to scrape off the paint stains on the ground.  That corridor had been painted earlier by other workers other than the plaintiff.  It is also alleged by the plaintiff that the ground of this corridor was full of paint stains because the floor had not been properly or adequately covered with canvas when the painting work was performed.

4. On 28 July 2000, when he was asked to remove the paint stains on this corridor, he was the only person assigned to remove the paint stains.  Moreover, he was told that he had to complete the removal of the paint stains quickly because the painting project was coming to an end and the site had to be handed back to the University by the end of the month.  He started the work of removing the paint stains on these three corridors at about 8 a.m. on 28 July and completed the work by about 3 p.m. the same afternoon.  Between those times he had an hour’s lunch break.  In order to carry out the work of scrapping off the paint stains, he had to squat down continuously, moving about in that squatted down position while at the same time scrapping off the paint stains on the ground. 

5. It is also the plaintiff’s case that the defendant, as his employer, should have provided him with a stool in order for him to carry out this work of scrapping off the paint stains, but that the defendant had failed to do so.  After he had finished the paint scrapping work at about 3 p.m. in the afternoon of 28 July, the plaintiff went to another floor of the building to paint some water pipes which were about eight to nine feet above the ground.  To do that painting work, the plaintiff used a folding ladder to reach the water pipes he had to paint.  When he came down from this folding ladder after finishing the painting work, he felt numbness in his legs.  However, the plaintiff continued to work but he also reported to his supervisor as to feeling numbness in his legs after he descended from the ladder.

6. It should be noted at once that the plaintiff’s claim is only in relation to the prolonged squatting when he was carrying out the paint scrapping work between 8 a.m. and 3 p.m. on 28 July.  It is also the plaintiff’s case that the numbness in his legs which he started to feel when he descended from the ladder was a direct cause of the prolonged squatting.  There is no complaint made by the plaintiff as regards the painting of the water pipes and the use of the folding ladder in carrying out that painting work.

7. On 2 October 2000, the plaintiff found his right sole to be very painful and that he could not lift up his right foot.  The plaintiff therefore went to the Ngau Tau Kok Jockey Club Clinic, and from there he was referred to the United Christian Hospital Accident and Emergency Department for further management.  Examination at the United Christian Hospital revealed a right drop foot and decreased power of right ankle dorsiflexion as well as decreased sensation over the medial side of the right foot.  Ultimately the plaintiff was diagnosed to be suffering from chronic compartment syndrome.

8. The plaintiff says that the defendant, being his employer, was negligent in the following ways :

(a)      in failing to provide him with a stool for his use so as to obviate the need for him to squat down continuously while carrying out the paint scrapping work on the corridor;

(b)    requiring the plaintiff to carry out the paint scrapping work alone without any assistance, and to complete such work on the corridor within a short period of time;

(c)     failing to supervise or to ensure that those painters who had painted the corridor at an earlier time had properly or adequately covered the floor with canvas so as to minimize the paint stains left on the ground of the corridor; and

(d)     failing to employ cleaners to do the paint scrapping work but, instead, requiring the plaintiff who was employed as a painter and not a cleaner to do such cleaning work.

9. The defendant denies that they were negligent as alleged or at all to the plaintiff.  It is the defence case that a stool was provided to the plaintiff but the plaintiff had failed to make use of it.  It is further alleged by the defendant that the plaintiff was employed by them as a cleaner and not as a painter.  It is also the defence case that the floor of the corridor where the plaintiff was asked to remove the paint stains was relatively clean and not as full of paint stains as alleged by the plaintiff.

The plaintiff’s evidence

10. The plaintiff gave evidence that in July 2000 he was introduced by his former employer, Wong Chi Kwong, to Wong Kim Yung, the supervisor of the defendant.  Wong Kim Yung then engaged the plaintiff to work for the defendant.  The plaintiff was employed as a painter at a daily wage of $600.  He worked for the defendant in the project at the University of Science and Technology in Sai Kung. 

11. On 28 July, the plaintiff was asked by Wong Kim Yung to scrape paint stains on the corridor of the 3^rd floor in a building known as “UG4” on the site.  This corridor was about 200 feet long and about 5 feet wide.  The paint stains were on the ground along the two-side walls of the corridor which had earlier on been painted.  The plaintiff was asked to remove the paint stains on the ground and was told that he had to complete the job within the day since the site would have to be handed back to the University.  He started scrapping off the paint stains at about 8 a.m. that day and only finished removing all the paint stains by 3 p.m. that same afternoon.  During that time he took the normal one hour off for the lunch break.  He had to carry out the paint scrapping by squatting down on the ground continuously.  He was not provided with a stool by the defendant to carry out this work.  Accordingly, apart from the lunch break, he had been squatting down from 8 a.m. to about 3 p.m. that same day. 

12. Some time after 10 a.m. that day when he was carrying out the paint scrapping, the plaintiff had already felt numbness in his legs but he continued to carry on the work as he had been told that he had to complete the work within the day.  He was also afraid of losing his job if he did not follow those instructions.  When he finished the paint scrapping at about 3 p.m., he was asked by Wong Kim Yung to go to the ground floor to paint some water pipes.  To do that he had to go up a wooden ladder, but by then his legs were numb.  Nevertheless, he continued the painting of the water pipes until some time after 5 p.m. when it was close to the time to knock off for the day.  When he came down from the ladder and because of the numbness in his legs, he felt that he might have sprained his right ankle.  As a result, he sat down and took a rest for some 10 to 20 minutes before leaving the site.  He did not make any report to anyone on that day as the other workers had already left, nor did he seek any medical treatment that night but only applied some bone-setting oil to his legs that night when he got home.

13. The plaintiff continued to work on the next day, namely 29 July.  On the morning of 29 July, he had notified Wong Kim Yung by phone that he had fallen off from a ladder and injured his leg the night before.  He was asked by Wong Kim Yung whether he could continue to work on 29 July and the plaintiff replied that he could.  On 29 July, the plaintiff was also asked to remove paint stains on a corridor on the 2^nd floor.  Once again, he had to scrape off the paint stains in a squatting position as the previous day.  Again, he was not provided with a stool to carry out this work.

14. The plaintiff also worked on 30 and 31 July.  He did not work on 1 August because that was a rest day.  

15. On the morning of 2 August 2000, the plaintiff found his right foot to be painful and that he could not lift up his right foot.  He therefore went to the Ngau Tau Kok Jockey Club Clinic and was referred to the United Christian Hospital Accident and Emergency Department for further management.  Examination at the United Christian Hospital revealed a right drop foot, decreased power of the right ankle dorsiflexion and decreased sensation over the medial side of the right foot.  Ultimately the plaintiff was diagnosed to be suffering from chronic compartment syndrome.  The plaintiff was then hospitalized until 16 August 2000.

16. The plaintiff called a witness, Wong Chi Kwong, being his former employer and friend.  Wong Chi Kwong’s evidence was that he had introduced the plaintiff to Wong Kim Yung to work as a painter.  Shortly after the plaintiff had started to work for the defendant, he was told by the plaintiff that the plaintiff’s salary was $600 per day.  Throughout his dealings with the plaintiff, he had never known the plaintiff to walk with any limp.

The defendant’s evidence

17. The defendant called three witness altogether.  Firstly, a director of the defendant, Madam Lee Shuk Fan, Anita (“Madam Lee”), gave evidence.  Her evidence related mainly to the question of quantum and will be dealt with when I deal with the aspect of quantum in this matter.  The other two witnesses called by the defendant was its foreman, Mr Lam Wai Kwong and its supervisor, Mr Wong Kim Yung.  Both their evidence related to the question of liability as well as quantum.  Both of them gave evidence that when the plaintiff was first employed by the defendant, they had both seen the plaintiff walking with an obvious limp.  Secondly, they were both adamant that the plaintiff was employed by the defendant as a cleaning worker rather than as a painter.  Thirdly, both of them gave evidence that three plastic stools were provided by the defendant for the cleaning workers to sit on when carrying out the work of paint scrapping from the ground.  Fourthly, both of them gave evidence that they did not see any accident happening to the plaintiff on the day in question nor were they told or informed by anyone of any accident to the plaintiff.

Assessment of the evidence

18. On the first point as to whether the plaintiff walked with a limp when he engaged by the defendant in July 2000, the evidence of the plaintiff himself and his witness, Wong Chi Kwong, is contradicted by the evidence of the defendant’s witnesses, Lam Wai Kwong and Wong Kim Yung.  

19. Lam Wai Kwong, being the foreman of the defendant, acknowledged that he had no authority to hire or fire.  He therefore did not speak to the plaintiff about the plaintiff’s limp.  Instead, his evidence was that he spoke to Wong Kim Yung about it.  Insofar as Wong Kim Yung’s evidence is concerned, it is stated in his witness statement which he adopted as his evidence that when he asked the plaintiff about the plaintiff’s limp, the plaintiff refused to answer him.  No further explanation is given in his witness statement as to why he continued to employ the plaintiff despite the plaintiff having this limp.

20. When Wong Kim Yung was cross-examined on this aspect of the case, he said, somewhat differently from his witness statement, that when he asked the plaintiff about the plaintiff’s leg, the plaintiff replied saying that there was no problem.  Moreover, Wong Kim Yung said in his evidence, when cross-examined, that during tea time on the first day of the plaintiff working for the defendant, he had in fact called up Wong Chi Kwong by phone to inform Wong Chi Kwong that the plaintiff had some injury with his leg.  He also added that the purpose of his informing Wong Chi Kwong of this was to let Wong Chi Kwong know that the plaintiff’s injury was not due to his work at the site.  When he told Wong Chi Kwong of this matter with the plaintiff, Wong Chi Kwong asked him to do a favour to the plaintiff and to continue to employ him.

21. This evidence given by Wong Kim Yung in cross-examination does not appear in his witness statement at all.  Moreover, I find it strange, to say the least, that after the plaintiff had been engaged for the work, that he, Wong Kim Yung, would still have to call up Wong Chi Kwong by phone to inform him of this matter and for the purpose given by him.  Wong Chi Kwong of course denies that there was any such conversation with Wong Kim Yung where Wong Kim Yung asked him about the plaintiff’s limp.

22. I do not accept the evidence of Lam Wai Kwong and Wong Kim Yung that the plaintiff had a limp when he was first engaged by the defendant.

23. As for the issue of whether the plaintiff was engaged or employed by the defendant as a painter at $600 per day or as a cleaning worker at $350 per day, this is an issue going to the question of quantum which I will deal with when I come to dealing with the issue of quantum together with the evidence of Madam Lee.

24. It is sufficient for present purposes to say that I accept the evidence of the plaintiff that he was employed as a painter at $600 per day and I reject the evidence given by the witness of the defendant on this issue.  The detailed reasons for my coming to this conclusion will be dealt with when I deal with this issue under quantum.  Moreover, although Madam Lee’s evidence related only to the question of quantum and not to the question of liability, she, as a witness, has lost a great deal of credibility with this court.  This is due to the fact that the defendant’s case, all along, had been put on the footing that $57,000 in periodical payments during the sick leave period had been paid to the plaintiff and that there are produced receipts signed by the plaintiff totalling that amount.  This evidence is contained in Madam Lee’s witness statement.

25. That position is disputed by the plaintiff who says that he was only paid $47,000 by way of periodical payments notwithstanding that he was made to sign those receipts by Madam Lee in order to get the $47,000 periodical payments.

26. When Madam Lee gave evidence, she adopted her witness statement as true and correct.  However, as she continued in her evidence it became clear that the figures stated in those receipts bore no resemblance to what was in fact paid to the plaintiff as periodical payments and that the actual amount paid to the plaintiff was as stated by the plaintiff.  Indeed counsel for the defendant was totally taken by surprise by this evidence from his witness.

27. Turning now to the issue of whether a stool was provided by the defendant, the plaintiff was adamant that no stool was ever provided by the defendant during the time that he worked at the site.  On the other hand, the defendant’s case from the evidence of both Lam Wai Kwong and Wong Kim Yung was that plastic stools had always been provided by the defendant together with other equipment at the site.  It is therefore interesting to note that in both witness statements of Lam Wai Kwong and Wong Kim Yung, there is no mention whatsoever of either of them having ever seen the plaintiff using a stool (or for that matter any other workers) when performing the work of scrapping paint stains off the ground.

28. In the case of Wong Kim Yung, this may not be so surprising since there is evidence that Wong Kim Yung was not at the site at all times.  But in the case of Lam Wai Kwong, his evidence was that he was stationed at the site and supervising the works at all times.  It was only in cross-examination that Lam Wai Kwong did say that he had seen the plaintiff using a stool when scrapping paint off the ground.  When further asked why it was that he never stated so in his witness statement, his answer was that he had in fact mentioned that to the solicitor who had prepared his witness statement for him but that he could not say why that did not find its way into his witness statement.  It is all the more surprising since this issue as to whether a stool was provided or not is central to the plaintiff’s claim against the defendant for negligence in this matter.  For these reasons, once again, I prefer the evidence of the plaintiff that no stool was provided by the defendant and I reject the evidence of the defendant on this issue.

Findings of fact

29. I therefore make the following findings of fact in this case as follows :

(1)     The plaintiff did not have any limp when he was first employed by the defendant in July 2000.

(2)     The plaintiff was employed by the defendant as a painter at $600 per day.

(3)     On 28 July 2000, the plaintiff was asked to scrape off paint stains on the ground of a corridor which had earlier been painted by other workers of the defendant and he did this work on his own from about 8 a.m. to 3 p.m. that day.

(4)     Not having been provided with a stool by the defendant and having to constantly move about in carrying out the paint scrapping work, the plaintiff had to carry out this work in a squatting position.

(5)     The prolonged squatting by the plaintiff in carrying out this work and similar work on the following day resulted in the plaintiff suffering a peroneal nerve palsy which in turn caused the plaintiff to suffer a right drop foot.

Liability

30. A number of particulars of negligence have been levelled against the defendant in this case.  Not all of them in my view show that the defendant was negligent. 

31. Firstly, it was said that the defendant was negligent in requiring the plaintiff who was employed as a painter to do the cleaning work.  I cannot agree with that.  The job of a cleaning worker requires less skill than that of a painter.  Although I have found that the plaintiff was employed by the defendant as a painter, as such he was more than qualified to do the work of a cleaning worker.  Therefore, in asking him to do the work of a cleaning worker, the defendant cannot be said to have been negligent. 

32. Secondly, it was also alleged that the defendant was negligent in failing to properly supervise the floor of the corridor being covered by canvas when the painting work was carried out in order to ensure a minimal of paint stains being dropped on the ground.  While the paint stains on the ground may have resulted in the plaintiff being asked to scrape off the paint stains, that cannot however be said to be a direct result of the plaintiff’s injuries, and that could not be the basis of negligence on the part of the defendant for which they can be liable to the plaintiff in this case.

33. I do however accept the submission by the plaintiff’s counsel that the defendant was negligent on the facts as found by me in that, the defendant had required the plaintiff on his own to remove the paint stains on that one corridor, to do that work quickly on his own without assistance, and had failed to provide a stool for the plaintiff to carry out such work. 

34. The combined effect of all these was such that the plaintiff had to undergo a prolonged period of squatting in carrying out this work.  Moreover, it must have been reasonably foreseeable to the defendant that prolonged squatting in such circumstances could lead to some form of injury to a worker.  With better supervision, steps could easily have been taken by the defendant to clean off the paint stains on the corridors in stages rather than at one go and with nobody else to help the plaintiff.  However, no such steps were taken and I find that in the circumstances the defendant was negligent.

Contributory negligence

35. The defendant relies on the contributory negligence of the plaintiff on the factual basis put forward by the defendant that a stool or stools had been provided by the defendant but that the plaintiff had failed to use.  Having found against the defendant on that factual basis, there can in my view be no question of contributory negligence on the part of the plaintiff in this case.  The plaintiff was here carrying out the work of the defendant in the way that he could carry it out with the kind of equipment provided to him.  He was neither taking any shortcut himself nor doing anything for his own convenience.  Nor was the plaintiff disobeying any instructions given to him by the defendant.  In the circumstances there can be no contributory negligence on the part of the plaintiff.

Quantum

36. I now turn to deal with the question of quantum.

Injuries and treatment

37. As already stated the plaintiff experienced numbness in his right foot after a prolonged period of squatting while at work on 28 July 2000.  He continued working for several days after 28 July, but that during those several days at work numbness continued.  On 1 August 2000, he woke up and noted a foot drop on his right foot.  As a result he attended the Ngau Tau Kok Jockey Club Clinic on 2 August 2000 and was referred to the Accident and Emergency Department of the United Christian Hospital for further management.  He was admitted to the United Christian Hospital on 2 August for his right foot numbness and right foot drop. 

38. Examination on admission to the United Christian Hospital revealed right foot drop, decreased power of the right ankle dorsiflexion at grade 3/5, and decreased sensation over the medial side of the right foot.  No fracture or dislocation was found on X-rays.  Blood test nerve conduction test and myelogram performed showed nothing abnormal.  Subsequent investigation revealed a parathyroid adenoma.  The adenoma was subsequently excised surgically in June 2001.  (It is now common ground that the adenoma is wholly unconnected with the accident or the drop foot suffered by the plaintiff, and I do not propose to deal further with the adenoma in this judgment.) 

39. At a later stage, the plaintiff was suspected to have chronic compartment syndrome.  The right leg compartment pressure was measured and was found to be on the high side.  The plaintiff was discharged from hospital on 16 August 2000.  Prior to discharge, the right foot drop was treated conservatively by drugs, physiotherapy, and support in a drop foot splint.  Thereafter, the plaintiff was referred for physiotherapy at the United Christian Hospital which started on 8 September 2000.  According to the physiotherapy report, the plaintiff was diagnosed as suffering from injury of the right common peroneal nerve.  He was given 23 sessions of treatment until 27 December 2000.  It was stated in the report that he had 40% improvement in the lower limb. 

40. The plaintiff was examined by Dr Arthur Chiang, the orthopedic expert instructed by the plaintiff, in November 2002.  In his report dated 23 December 2002 Dr Chiang came to the conclusion firstly, that the plaintiff’s drop foot was unlikely to have resulted from the parathyroid adenoma for a number of reasons, the main one being that the parathyroid adenoma is most unlikely to have given rise to abnormalities in the nerves in the limbs.  It was, according to Dr Chiang, merely a coincidence that the parathyroid adenoma was discovered when the plaintiff was admitted to hospital for his drop foot problem. 

41. The second conclusion arrived at by Dr Chiang in his report was that the problem of the plaintiff’s drop foot has its cause in the common peroneal nerve or its branches.  Dr Chiang then refers to the finding by the treating doctor at the United Christian Hospital that the plaintiff was found to have chronic compartment syndrome.  Although the treating doctor had further stated that it was unlikely that the prolonged squatting would be the prime cause of the chronic compartment syndrome, however the view taken by Dr Chiang was that the prolonged squatting might aggravate or trigger off drop foot and numbness in patients who already had chronic compartment syndrome.  

42. Insofar as the prolonged squatting directly gave rise to common peroneal nerve palsy, Dr Chiang was able to locate some medical literature on that subject although such medical literature was not extensive but very limited.  From that literature Dr Chiang was unable to rule out the prolonged squatting as being a direct cause of peroneal nerve palsy and therefore resulting in the plaintiff’s right drop foot.  On that basis, Dr Chiang came to the conclusion that the prolonged squatting was the cause of the plaintiff’s drop foot whether as a direct result or whether it aggravated the pre-existing condition of chronic compartment syndrome in the plaintiff. 

43. Insofar as treatment is concerned, Dr Chiang came to the view that there has already been reasonable recovery in the plaintiff, which would allow the plaintiff to be capable of prolonged walking, standing and some manual work activities.  The residual stiffness and weakness in the right ankle might probably have reduced the end range endurance with unduly prolonged heavy manual work activities, and probably the plaintiff might have to avoid prolonged squatting.  However, at this stage, Dr Chiang was of the view that surgery is not required and regular type of treatment such as physiotherapy is probably not required as well.  

44. The then condition of the plaintiff suggested that a stabilized stage had been reached.  He further assessed the permanent impairment of the plaintiff to be at 5% and that the plaintiff might be able to return to his pre-injury type of work but with some reduction in his work capacity namely, having to avoid prolonged squatting.  

45. The plaintiff was also examined by the defendant’s orthopaedic expert, Dr Lau Man Tsang Richard, in July 2003.  In his report dated 31 July 2003, Dr Tsang states that it is possible that prolonged squatting can cause peroneal palsy which is caused by compression on the nerve.  He also shares Dr Chiang’s view that no further treatment is necessary for this plaintiff after the state of medical improvement is reached, which, depending on the degree of injury, nerve recovery would take up to 18 months to improve.  As for this plaintiff, he takes the view that no further medical treatment is going to change the plaintiff’s condition. 

46. As to causation, Dr Lau states in his report that common peroneal nerve palsy can occur after extended period of squatting and it can occur after squatting in a person with chronic compartment syndrome.  He states that the opinions expressed by Dr Arthur Chiang and by the doctors from the government hospitals are not mutually exclusive but that both conditions are rare entities.  Both of them had arrived at their conclusions through a process of elimination.  He further states that in the literature quoted by Dr Chiang, squatting was put forward as a theoretical possibility of causation in one case, and the others had positive electrical studies.  The presence of a pre-existing chronic compartment syndrome could make the situation worse.  In his recommendation and conclusion, he states that both his assessment and his views as to causation in this plaintiff are based on the assumption that the complaints (by the plaintiff) were genuine.  In the case of the plaintiff, he is somewhat skeptical that the plaintiff is still suffering from nerve palsy when the conduction test showed that the nerve was normal.  In his view, the plaintiff ought to have recovered from the nerve injury which occurred three years ago and that the perpetuation of symptoms may be due either to the plaintiff’s psychiatric disorder or that the plaintiff is malingering. 

Pain suffering, loss of amenities

47. There can be little doubt from what is contained in the expert reports that the drop foot of the plaintiff resulted from prolonged squatting, whether as a direct result of it or whether that prolonged squatting had aggravated the pre-existing condition in the plaintiff of chronic compartment syndrome.  However, the reservation of Dr Richard Lau as to malingering on the part of the plaintiff is something which I cannot rule out entirely, particularly when I take into account the contents of a video showing the plaintiff which was taken by investigators instructed by the defendant.  That was a video taken on 17 July 2003, the day on which the plaintiff was examined by the defendant’s expert Dr Richard Lau Man Tsang. 

48. The first part of that video displays a time of 17:56 hours on the screen.  The plaintiff agreed in cross-examination that that was the date and time at which he went to the defendant’s expert for examination.  That part of the video shows the plaintiff walking with a walking stick in one hand, a heavily bandaged right leg as well as walking with a very obvious limp. 

49. The second part of that video was taken on the same day but approximately one hour later.  It shows the plaintiff in the same attire as he was wearing in the first part of the video.  However, the plaintiff had no walking stick with him, no bandage on his right leg and was walking without any limping.  In cross-examination, the plaintiff explained that in the first part of the video, which showed him to be with a walking stick, he was going for medical examination.  

50. In the second part of the video, he had already returned home from his medical examination, but then he had to come out from home to make some purchase from a shop which was close by to his home.  Since it was only for prolonged walking that he needed a walking stick, he was able to walk without a walking stick to the shop close to his home to make the purchase. 

51. However, that explanation does not explain the heavily bandaged right leg and the obvious limp with which he was seen in the first part of the video. 

52. Possibly one other aspect which I have to take into consideration on the question of exaggeration or malingering by the plaintiff is the fact that both experts in this case were of the view that the plaintiff is able to return to his pre-accident job albeit with some limitation.  However, the plaintiff’s own evidence is that he is still unable to return to any form of employment at the time of the trial because of the disability resulting from his injuries.

53. Having considered all these aspects and in particular, what is shown in those two different parts of the video adduced into evidence by the defendant, I have come to the conclusion and make the finding that there has been some degree of exaggeration by the plaintiff as to the extent of his disabilities from his injuries.  I accept the expert evidence that the plaintiff has, to a large extent recovered from his injuries albeit that there may still be some small resultant disabilities which would prevent him from squatting for a long period but that by and large he has recovered from his drop-foot. 

54. I also take into consideration that sick leave was granted to the plaintiff for some 27 months and that the opinion of Dr Lau was that nerve injury of the type suffered by the plaintiff, depending on the degree, would likely recover in 18 months’ time.  Given these matters, I am of the view that the award for pain, suffering and loss of amenities in this case should properly be $200,000.

Loss of earnings (pre-trial)

55. The main issue in dispute insofar as this head of claim is concerned, relates to the pre-accident earnings of the plaintiff.  The plaintiff says that he was employed by the defendant as a painter at $600 per day and on the basis that he works for 26 days in a month his pre-accident earning would be $15,600 per month.  

56. The defendant’s case is that the plaintiff was engaged by it not as a painter but as a cleaning worker at $350 per day.  It is the defence case that the actual work record of the plaintiff for the month of July 2000 shows that he had only worked for 15 days in July and was only paid $5,250.  Therefore, loss of earnings to the plaintiff should be calculated on that basis of $5,250 per month.  That comes from a hand-written record prepared by Wong Kim Yung produced into evidence as Exh. D1. 

57. However as against that piece of evidence, there is also the Form 2 prepared by and signed by Madam Lee.  In the Form 2, the plaintiff’s salary is stated to be $15,600 per month.  The Form 2 is dated 18 August 2000 and signed by Madam Lee on behalf of the defendant. 

58. She was called as a witness by the defendant to explain how she had put down $15,600 as being the monthly salary of the plaintiff in the Form 2.  Her evidence was that this was the first time ever that she had to complete a Form 2 notifying the Labour Department of an accident to one of the defendant’s workers, namely the plaintiff.  In her rush to complete that document, she had, without checking the details with Wong Kim Yung, assumed the plaintiff to have been employed as a painter at $600 per day and had also assumed that the plaintiff worked 26 days in a month.  It was only after she had filled in the Form 2 in this way and had sent it off to the Labour Department that she came to learn from the foreman that the plaintiff was in fact employed as a cleaning worker.  It was also her evidence that she had assumed the plaintiff to have been paid $600 per day because painters employed by the defendant were normally paid $600 per day. 

59. That evidence of Madam Lee has to be gaged against the evidence of Wong Kim Yung given in answer to questions by the court after his re-examination.  Mr Wong’s evidence was that p.30 of Tab B of the trial bundle is a copy of a page from Exh. D1.  On that page is recorded the actual amounts paid to the different workers named thereon, being their salary for the entire month of July 2000.  As against what purports to be the plaintiff’s name, it is recorded on that page that the plaintiff had worked for 15 days and that $5,250 was due to him for the entire month of July 2000.  It was the evidence of Wong Kim Yung that he had obtained the total amount of money for paying all the workers their salaries for July 2000 from Madam Lee sometime on or before 7 August 2000.  After he had obtained the total amount for payment to the workers from Madam Lee, he then faxed that page which contained the individual breakdown of the salary of each worker to Madam Lee on 7 or 8 August 2000.  

60. In the light of that evidence from Wong Kim Yung, it is impossible for me to accept the explanation given by Madam Lee as to how she had come to make the mistake contained in the Form 2 relating to the plaintiff.  Moreover, a further indication that Madam Lee’s explanation cannot hold water is the fact that when the monthly salary of each individual worker shown on p.30 of Tab B of the trial bundle is divided against the number of days recorded thereon as having been worked by each of the workers employed by the defendant it can be seen that not one of the painters employed by the defendant was paid on the basis of $600 per day.  That contradicts entirely Madam Lee’s evidence that painters employed by the defendant are usually paid at the rate of $600 per day.  

61. Therefore, in the light of the admission contained in the Form 2 which is not only prepared by Madam Lee but signed by her to confirm the contents thereof and submitted to the Labour Department I have no hesitation in finding that the plaintiff was paid $600 per day as a painter by the defendant and that his monthly salary would come to $15,600 on a normal 26 working days per month.  

62. The plaintiff was granted sick leave for a total of 27 months from 2 August 2000.  I am prepared to find from the opinion expressed by the medical experts in this case that two years would have been a reasonable period for sick leave to have been granted.  It would not be unreasonable to allow for a further three months for the plaintiff to look for and seek employment.  This fits in with the 27 months of sick leave granted to the plaintiff.  There will be full loss of earnings during that period of 27 months, which comes to $421,200.  

63. I am also prepared to accept the opinion of the medical experts that the plaintiff was able to return to his pre-accident work after the expiry of his sick leave, albeit with some limitation in his work capacity.  That reduced working capacity can be reflected in an award for loss of earnings capacity which I shall come to in due course.  I am not persuaded that there should be any further loss of earnings to be awarded to this plaintiff beyond the 27 months of sick leave granted to him.  Therefore, the pre-trial loss of earnings is assessed at the aforesaid figure of $421,200.  

Loss of future earnings

64. This item of claim has been abandoned by the plaintiff in the light of the opinion expressed by the medical experts in this case.  In my view that concession is rightly and properly made by counsel for the plaintiff. 

Loss of earnings capacity

65. There is a claim by the plaintiff for loss of earnings capacity at $100,000.  There can be no doubt that the plaintiff will suffer some handicap in the labour market, even though the medical experts are agreed that the plaintiff can resume his pre-accident work after the sick leave period.  That handicap in the labour market comes from the opinion of the medical experts in this case that the plaintiff will have some reduced work capacity and must also avoid prolonged squatting.  On the other hand, the fact that the plaintiff is able to return to his pre-accident work suggests that that handicap cannot be a very great one.  Accordingly, taking into account all the circumstances of this case, the plaintiff’s loss of earnings capacity will be assessed at $50,000. 

Loss of MPF

66. MandatoryProvident Fund came into force in Hong Kong on 1 December 2000.  The accident happened at the end July 2000.  That means the loss of MPF in this case should be calculated not on the basis of the 27 months’ loss of pre-trial earnings, but rather on the basis of 23 months of loss of earnings since MPF only started on 1 December 2000.  On that basis the loss of MPF which is calculated at 5% of 23 months’ loss of earnings comes to $17,940.

Special damages

67. The parties are agreed that the amount of special damages should be assessed at $10,785.  That amount will be allowed. 

Interest

68. Interest will be awarded at 2% per annum for general damages from the date of writ to date of judgment and thereafter at judgment rate.  Interest at 4% per annum (being half judgment rate) will be awarded on pre-trial loss of earnings and special damages from the date of accident to date of judgment and thereafter at judgment rate.  

Summary

From this amount of $790,648, credit will have to be given for the sum of $47,000 being sick leave payment already received by the plaintiff, this gives a final figure of $743,648.

CONCLUSION

70. Accordingly, there will be judgment for the plaintiff for the sum of $743,648 against the defendant.

COSTS

71. There will be a costs order nisi that the costs of this action be to the plaintiff, to be agreed or to be taxed on the High Court scale for the costs incurred before 1 December 2003 and for all such costs incurred thereafter to be taxed on the District Court scale.

72. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.