CHAU CHIN TO CHADOW v. WING FUNG FINANCIAL GROUP LTD

HCPI 163/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 163 OF 2015

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is an assessment of damages.

BACKGROUND

2.  The plaintiff was born on 12 March 1985.  He was educated up to secondary level.  He can write and read Chinese, with fair command in English.  He started to work from about 2007.  In 2011, he joined the defendant as a warehouse clerk.  On 2 May 2012, he met the subject accident whereby he injured his lower back.

3.  Six days later, he visited the A & E Department of Prince of Wales Hospital on 8 May 2012.  The medical findings were:

“1. mild tenderness over right low back.

2. X-ray lumbar sacral spine was unremarkable.”

The plaintiff was given 4 days’ sick leave.

4.  Thereafter, the plaintiff went to consult hospitals and clinics for the injury.  For about the next half year, he took a few[1] days of sick leave every month.  No further sick leave was then taken in November and December 2012.  From the physiotherapy report of the hospital authority dated 4 March 2015, it explained, inter alia, that:

“…

2. In the initial assessment done on 10 July 2012, Mr Chau complained it of intermittent deep stretching pain over his low back. Range of motion of his low back was decreased with pain. No neurological deficit was noted.

3. Physiotherapy was given to him including electrotherapy, back mobilization and strengthening exercises.

4. After about 4 months of treatment, Mr Chau stated that there was 70-80% improvement and resumed working. Range of motion of his low back was improved with residual pain.  The treatment was stopped after the last session on 16 November 2012. …”

5.  However, starting from about November 2012, the defendant arranged the plaintiff to carry some gold bars.  He thereafter felt increasing back pain and resumed to take a few days sick leaves for each of the following 3 months[2].  Later, the plaintiff went to check his back by MRI.  In the report dated 4 March 2013 by Diagnosic & Imaging Centre, it was found that:

“ FINDINGS:

Early desiccated change is noted at the L5/S1 disc and this disc height has this diminished. There is a focal protrusion of disc noted at the right posterolateral recess, indenting onto the thecal sac. There is no nerve root impingement. The neural foramina are patent.

The rest of the intervertebral discs are of normal signal and heights without protrusion and herniation.

There is no thickening or arthritis noted at the facets joints. The ligamentum flavum is of normal appearance and not thickened as well.

The normal spinal alignment is preserved. No marrow infiltration is seen. No bony collapse or injury is noted.

COMMENTS:

1. There is early degeneration with focal disc protrusion conducted at the L5/S1, without causing nerve root impingement or spinal stenosis.

2. There is no other neurological complication or degenerated disc disease is noted.”

6.  Then, from about April 2013 onwards, the plaintiff virtually stopped working.   

7.  About one year later, on 30 April 2014, the plaintiff attended the assessment by the Employees’ Compensation (Ordinary Assessment) Board.  Four hundred and five (405) days of sick leave were recorded at the time of assessment.  By his injury of “LOW BACK INJURY RESULTING IN LOW BACK PAIN (下腰背受傷引致下腰疼痛)”, the plaintiff lost earning capacity permanently by 2%.

8.  On 22 November 2014, the plaintiff resigned from the defendant. In his resignation letter, he said that:

“本人由於2012年5月2日於工作時受傷引致的腰傷而不能再應付現時倉務文員的工作。

因此，本人已決定辭去現時倉務文員的職位，並由2014年11 月22日起開始正式生效。

在此，感謝永豐金融集團給予本人學習的機會，並取得寶貴的工作經驗。希望本人的離職不會為你帶來很大的不便。

（希望本人的離職不會為公司帶來很大的不便。）

本人希望在離職之前，能夠取得離職通知書。

祝工作愉快！

（祝你們業務興旺，工作愉快。）”

9.  Parties thereafter agreed for a joint examination of the plaintiff by orthopaedic experts.  The joint expert report dated 29 December 2014 records that:

“PHYSICAL EXAMINATION

General

- conscious and alert

- sitting with good stability

- walking normal

- can stand on either leg alone

- can perform tip toe/heel walking on both lower limbs

- can squat

Back

- no scar

- diffuse tenderness over thoracic and lumbosacral spine region

- range of movement,

flexion – finger reaching down to knee

extension 20º

side flexion to right 20 º

side flexion to left 20 º

Examination of lower limbs

- limb lengths equal

- lower limb muscles symmetrical on both sides

- straight leg raising test full on both sides

- sensation intact

- power normal

- jerks present

- simulation tests

- axial compression negative

- pelvic rotation negative

- superficial tenderness negative

RADIOLOGICAL EXAMINATION

X ray of L/S spine and thoracic spine on day of interview

- no bony lesion

- disc spaces height preserved

MRI lumbar spine on 4^th March 2013

- we agree with the findings in the report of Dr. Chan Kui Fai

COMMENTS

After the examination, Mr. Chau was discharged. Dr. Ho and Dr. Fu held a discussion and arrived at the following conclusion:

Diagnosis and Causation

1. We agree Mr. Chau’s clinical picture is compatible with the diagnosis of soft tissue injury of back. We agree it should be due to the said accident on 2^nd May 2012. There is no evidence of pre‑existing pathology.

Treatment and prognosis

2. We agree the treatment Mr. Chau received is appropriate for his condition.

3. In view of his current condition, we agree he does not need further treatment. MRI lumbar spine revealed just minor disc protrusion with no neural compression. We agree surgery is not indicated and he has reached maximal medical improvement.

4. … ”

10.  The plaintiff commenced the present proceedings on 17 February 2015.  By consent, on 31 March 2015, interlocutory judgment on liability was entered for the plaintiff, leaving damages to be assessed.

ASSESSMENT

11.  Parties appeared before me for 3 days for the assessment.  Both parties were represented by Counsel, Mr B K Ho for the plaintiff and Ms. Flora Cheng for the defendant.

12.  The difference of position between the parties may be seen from the calculation of damages put by them.

	plaintiff[3]	defendant[4]
(a) PSLA	450,000	150,000
(b) Pre-trial loss of earnings	251,372	177,825
(c) Future loss of earnings	925,182	Nil
(d) Loss of earning capacity	148,831	60,000
(e) Special damages	35,549 ___________ 1,810,934	14,941 ___________ 402,766
Less: ECC payment	189,799 ___________ 1,621,135 + interest	189,799 ___________ 212,967 + interest

13.  Ms. Cheng in her closing submissions identified seven major issues to be decided by this court.  I heard no objection from Mr. Ho to this suggestion.  Four of these issues relate to quantum and I will deal with them in this assessment after my findings on the three factual issues, namely:

“1. What is the true extent of Plaintiff’s orthopaedic injury resulting from the Accident/employment?

2. Whether the alleged psychiatric symptoms were caused by or related to the Accident/employment?

…

5. Whether the Plaintiff failed to mitigate his loss?”

The three factual issues are to be considered by looking at and assessing the evidence before me, including medical, surveillance and those from witnesses.

EVALUATION OF EVIDENCE

14.  There were 2 witnesses appearing before me, the plaintiff himself and Mr. Lui Siu Kong (called by the defendant). Mr. Lui was the direct supervisor of the plaintiff at the material times. 

15.  Upon consideration, I regret to find that the plaintiff is not a reliable witness. As to Mr. Lui, his evidence was straight-forward and not shaken during cross-examination. I accept them on balance (if there is any conflict between him and the plaintiff).  

16.  The plaintiff said that he was suffering seriously. In his witness statement dated 7 October 2015, he said:

“13. 現在本人不能夠長時間坐下、站立或走路，走路時十分緩慢，一跛跛的，更曾經行路期間無故背部瘀腫及跌倒。本人現已做不到彎身、攀爬或蹲下等動作，平日做家務亦有困難，睡覺時下半身更變得麻痺。本人更曾於前往參加威爾斯親王醫院痛症科安排的「豐盛人生」痛楚管理課程的途中，出現大便失禁的情況。＂

In his supplemental witness statement dated 20 February 2017, he added that:

“5. 由2016年11月開始，本人除了腰背痛之外還感到痛楚由腰背延伸到腳部。起初只是右邊膝蓋痛，後來左邊膝蓋亦有感到痛楚。由2017年1月，本人更由於右膝痛得腫了起來，需要到急症室求診，以及使用柺杖協助走路。可是由於長期使用柺杖會令手部因負荷過重而感到疼痛，本人不希望手部也受傷，只好忍著腳痛走路，非必要時盡量不使用柺杖。現在本人走路和上落樓梯時除了腰背痛外亦會間中感到兩邊膝蓋痛，另外坐下大約10至20分鐘後雙腿亦有時會麻痺起來。”

17.  However, these descriptions are directly contradicted by the agreed facts/opinion of the joint orthopaedic experts (as per the extracts in paragraph 9 above).

18.  Mr. Ho asked me to accept the case of the plaintiff but not the those from the orthopaedic experts.  I decline to do so.  As rightly pointed out by Ms. Cheng, there has been more than ample opportunity for the plaintiff or those representing him to go back to the experts for supplemental or updated opinion.  However, nothing has been done. 

19.  Further, the case of the plaintiff cannot stand in front of the surveillance evidence put to him.  On those days when he was taped, he walked and sat normally.  The plaintiff tried to explain that he walked with leaping gait (趷吓趷吓).  I disagree.  As observed by Ms. Cheng, his hip movement was generally smooth and there was no leaping gait at all.  If there was any uneven movement in the hips, it was only caused visually by the placing of wallet at his right pocket in his little baggy pair of trousers.  Mr. Ho also tried to explain that the plaintiff walked slowly.  I disagree again.  He might walk slower than others in the video, not that he had to do so but only due to his smoking and using/playing of his mobiles at most of the time during the walks.

20.  When the plaintiff appeared before the court for the assessment, whether in the public audience area or the witness box, he showed (or attempted to show) that he could not continue standing or sitting for more than 20 – 30 minutes.  Hence, he had to shifted his postures from time to time.  With the said surveillance evidence, he has just proved himself to be exaggerated.  There is also no or no sufficient medical evidence to back up such condition.   

21.  As to Mr. Lui, his evidence is not controversial as it does not touch or touch directly on the extent of injury of the plaintiff.  Instead, it only provides certain background information of the present case.  Mr. Lui indeed supported the case of the plaintiff in some aspects. The duty of the plaintiff included lifting of boxes. After the accident, he advised the plaintiff to take light duty and to avoid lifting boxes. However, due to the helpful personality of the plaintiff, he might lift some boxes after accident. When the plaintiff came to work for the defendant for a few days each month near the end of 2014, the defendant only asked him to do paper work, but there was nothing further else for him to do.

22.  There is only one conflict between Mr. Lui and the plaintiff, namely for how many gold bars the plaintiff was required to carry each time at about the end of 2012. Such difference in fact bears no or no significant impact on the present assessment because the defendant has conceded on the question of liability. However, on balance, I prefer the evidence of Mr. Lui to those of the plaintiff. Hence, I find that the plaintiff was only required to carry about 5 kg of gold bars for a short period of time like 5 to 10 minutes at each delivery.

23.  As to the psychiatric evidence adduced by the plaintiff, I agree to adopt the submissions of Ms. Cheng in her closing submissions.

“28. There is no dispute that the Plaintiff has consulted the Department of Psychiatry of PWH on the dates shown in the relevant reports but those consultations by themselves are not established proof that the Plaintiff is suffering from Psychiatric illness caused by the accident or employment, let alone whether the Defendant should be responsible and liable to compensate the Plaintiff for it. The Plaintiff bears the burden to establish causation of such on the balance of probabilities.

29. …

32. This Court has the benefit of hearing from the Plaintiff as to the circumstances and reasons he sought assistance from the psychiatry service. He admitted that he was then suffering from a number of psychosocial and personal problems which prompted him to approach the psychiatric service. This Court may note that amongst the great volume of sick leave certificates adduced in evidence, the first time that adjustment disorder was referred in the medical certificate was the one issued by Lek Yuen GOPC on 31^st July 2014…but no sick leave was recommended. The second time adjustment disorder was referred was the medical certificate issued by Lek Yuen GOPC on 11^th September 2014… (illegible in the trial bundle), again no sick leave was recommended. The great majority of sick leave certificates issued thereafter are for back pain, this is clearly inconsistent with the agreed orthopaedic findings by the experts.

33. There are just too many uncertainties and problems in those reports that this Court should guard against before acting on it, it is submitted that on the available state of evidence in whole, the Plaintiff failed to establish on the balance of probabilities that he suffered from any psychiatric impairments brought by his injury on duty.

34. …”

24.  Mr. Ho urged me to accept that the plaintiff had tried his best to find jobs after resigning from the plaintiff, including sending out application letters and attending training courses. He did work for a number of different companies, albeit only a short period for each of them. It was so because the plaintiff was able to cope with the jobs. There was no malingering on the part of the plaintiff. His bankruptcy had nothing to do with his incentive to find jobs. He has never hided it from the defendant.

25.  However, having found the plaintiff to be not a reliable witness and the psychological problem suffered by him are caused by the accident/employment, on balance, I cannot be satisfied that the plaintiff has discharged the duty to mitigate in the circumstances.

26.  To conclude the above evaluation and answer the said three factual issues.  I find on balance the followings.

(1)   At the time of the joint examination, the orthopaedic condition of the plaintiff was static.  He had and would have on and off pain.  He would also have difficulty in lifting objects.  The plaintiff could resume his original duty with reducing efficiency.  He would have difficulty in manual lifting and prone to injury if he performed manual lifting.  If lighter duties could not be arranged, he had to move to something like cashier or car park attendant.

(2)   The psychiatric symptoms alleged and/or suffered by the plaintiff were not caused to the subject accident/employment but the personal problems of the plaintiff.

(3)   The plaintiff failed to mitigate his loss in the present case.

PSLA

27.  Both counsel referred me to a number of authorities on PSLA.  Out of them,  Shek Kam Ching v. Po Kee Construction Engineering Ltd[5] is the best comparable for the present case.  In that authority, the victim sprained his back when he lifted steel rod.  He suffered a small prolapse of intervertebral disc at L5/S1.  He was given sick leave for 26 months.  He was unable to return to his pre‑accident work.  He had a good recovery after conservative treatment.  He was awarded by the Judge 150,000 on PSLA.

28.  With my above findings and the factor of inflation, I find a sum of $250,000 appropriate under this head of damages, bearing in mind that the sick leave I will allow to him below.

PRE‑TRIAL LOSS OF EARNINGS

29.  Regarding loss of pre‑trial earnings, Mr. Ho relied on the total of 693[6] sick leave certificates issued.  He said that the plaintiff returned to work when he was not fit to do so.  It prolonged his condition and caused it to deteriorate. He subsequently developed psychiatric illness.  Having found that the psychiatric illness of the plaintiff was not caused by the accident/employment and there was exaggeration on his part, I agree to adopt the suggestion made by Ms. Cheng.

30.  The authority of Tam Fu Yip Fip v. Sincere Engineering & Trading Co. Ltd.[7] precisely covers the present situation as Le Pichon JA said:

“…medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge are not bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff…”.

31.  Notwithstanding that the plaintiff was given the said 693 days of sick leave, many of them were issued mere allegation of (low) back pain only.  After the accident on 2 May 2012 to 30 April 2014 (as certified by the Employees’ Compensation (Ordinary Assessment) Board on 14 May 2014, a total of 405 days of sick leave is appropriate as the plaintiff had reached maximal medical improvement on the date and no further therapeutic treatment was needed.  As such, I will grant the plaintiff damages in the sum of $177,825.

“The Defendant is prepared to allow pre‑assessment loss of earnings and MPF on the basis of 405 days sick leave within 2 years, i.e., ($12,325 x 12 x 1.05 = $155,295) + ($11,812 x 12 x 1.05 = $148,831.2)

HK$304,126.20

less salary received within 2 years (HK$126,301.18) =

HK$177,825.02”

(para. 40 of Ms. Cheng’s closing submission, as revised)

FUTURE LOSS OF EARNINGS

32.  I do not find the plaintiff not a reliable witness. I do not find on balance that the psychological problem suffered by him are caused by the accident/employment. I decline to accept that the plaintiff has discharged his burden to mitigate the loss. Nonetheless, there are still joint medical expert evidence to support the injury suffered by the plaintiff. Mr. Lui also confirmed that the defendant only asked the plaintiff to do paper work and gave no further job to him when he resumed working. I therefore will still award the plaintiff future loss of earnings in principle as those suggested by Mr. Ho, except to adopt a lesser multiplier (20 instead of 22.17) to reflect the failure to mitigate loss on the part of the plaintiff. It takes me to the figure of $834,624 (($11,812 – $8,500) x 12 x 20 x 1.05).

LOSS OF EARNING CAPACITY

33.  In my view, the impact of the injury upon the plaintiff is not significant and a sum of $70,872, i.e. 6 months’ wages in the aforesaid sum of $11,812 is appropriate to compensate him for any disadvantage in labour market or higher chance of losing job in future.

SPECIAL DAMAGES

34.  I agree with Ms. Cheng on her suggestion relating to travelling expenses ($4,000) and medical expenses ($10,941).  As to tonic food, while noting that no receipt has been produced and the plaintiff’s evidence is not entirely satisfactory, I would still allow him the sum of $3,000 as reasonable he should have spent. Hence, under the head of special damages, I award him the total of $17,941.

SUMMARY

35.  To conclude, the defendant shall pay the followings to the plaintiff.

	$
(a) PSLA	250,000
(b) Loss of past earnings and MPF	177,825
(c) Loss of future earnings	834,624
(d) Loss of earning capacity	70,872
(e) Special damages	17,971 ___________ 1,351,292
Less: Employee compensation received	189,799 ___________ 1,161,493

INTEREST

36.  On general damages (PSLA), I will award the plaintiff interest of 2% per annum from the date of writ to the date hereof. As to special damages (item (e) of paragraph 35 above), interest is to be calculated at half judgment rate from date of accident to the date hereof.  

37.  Mr. Ho also prayed interest on loss of past earnings and MPF. However, given that the sums ($189,799) received by the plaintiff in employee compensation exceed the sums as per item (b) of paragraph 35 above ($177,825), no interest will be awarded to this item as the plaintiff has not been deprived of the use of them at the material times.

COSTS

38.  Finally, there will be a costs order nisi that the plaintiff is entitled to costs of the assessment, including all costs reserved and certificate of counsel for the hearings before me, on High Court scale and party-and-party basis, to be taxed, if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.