GURUNG LACHHAMAN v. GURUNG CHANDRA PRAKASH t/a METRO CONSTRUCTION CO AND OTHERS

HCPI 672/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 672 OF 2008

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J U D G M E N T

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CASE SUMMARY

1.  This is an assessment of damages payable by the Defendants to the Plaintiff.

2.  This is a personal injury claim arising out of an incident occurred on 12 September 2005 (the “Incident”).

3.  The Plaintiff was employed by the 1^st Defendant at the material times to work on the Eagle’s Nest Tunnel construction site (the “Site”) as a waterproofing applicator.

4.  The 1^st Defendant was a subcontractor of the 2^nd Defendant which was a subcontractor of the 3^rd Defendant.  The 3^rd Defendant was the principal contractor of the works at the Site.

5.  The Plaintiff sustained personal injuries on 12 September 2005 while on duty at the Site.

6.  In the Incident, the Plaintiff was walking passed a mechanical excavator and was struck from behind by its moving digger arm and was knocked forward onto his knees.

7.  He was taken to the TY Medical Practice for treatment on 12 September 2005.  Subsequently, the Plaintiff also received treatments at other medical institutes.

8.  The Plaintiff commenced this Action on 11 September 2008.

9.  Interlocutory Judgment was entered on 18 August 2009 by consent against the Defendants for the Plaintiff’s claim with damages to be assessed.

10.  The Plaintiff was legally represented in this Action until 8 September 2009 when his legal aid certificate was discharged.  The Plaintiff was not legally represented at the assessment of damages hearing.

11.  On 28 July 2009, the Court ordered that the three reports of the parties’ orthopaedic experts, Dr. Wong Chin Hong (“Dr. Wong”) and Dr. Chun Siu Yeung (“Dr. Chun”), dated 10 February 2007, 27 June 2007 and 17 March 2009 should be adduced without oral evidence.

12.  Only the Plaintiff testified at the assessment of damages hearing.  The Defendants did not call any factual witness.

THE PLAINTIFF’S CLAIM

13.  The Plaintiff had filed his Revised Statement of Damages when he was still legally represented.  In his Revised Statement of Damages he claimed the following heads of damages against the Defendants:

(1) general damages for pain, suffering and loss of amenities in the sum of $300,000.00;

(2) loss of earnings in the sum of $802,620.00;

(3) loss of future earnings in the sum of $1,340,640.00;

(4) loss of earning capacity in the sum of $150,000.00;

(5) costs of future medical treatment in the sum of $5,000.00; and

(6) special damages for:

(a) medical expenses in the sum of $7,825.00;

(b) travelling expenses in the sum of $3,000.00;

(c) tonic food in the sum of $2,000.00.

THE PLAINTIFF’S MEDICAL TREATMENTS

14.  The Plaintiff received the following medical treatments at TY Medical Practice:

12 September 2005

Physical examination revealed tenderness at para-spinal muscle at lower lumbar spine and superficial skin abrasion at right knee. Straight Leg Raising (“SLR”) was 90 degree bilaterally. He was treated with dressing to right knee and prescribed oral analgesics. Two days sick leave was granted.

14 September 2005

He was found with deceased back pain but still had right knee pain. X-ray revealed normal spine and right knee. He was again treated with dressing for his right knee wound and prescribed with oral analgesics. Three days sick leave was granted.

17 September 2005

His right knee injury nearly completely healed. He walked unaided with full power of bilateral lower limbs. He reported low back pain. Oral analgesics were prescribed. He agreed to resume light duty and no further sick leave was granted.

23 September 2005

He still reported low back pain. Left para-spinal muscular spasm was recorded. Oral analgesics were prescribed. No sick leave was granted.

24 September 2005

He walked unaided but reported that low back pain remained the same. No bruises or swelling was found but left para-spinal muscular tenderness was recorded. Oral analgesics were prescribed. Three days sick leave was granted. He was also referred to physiotherapy.

25 September 2005

He walked unaided but complained of increased low back pain. Oral analgesics were prescribed. He was asked to contact the physiotherapist.

28 September 2005

He complained that his back pain was severe. He did not attend physiotherapy claiming that he could not find the place. Oral analgesics were prescribed. He was again referred to physiotherapy. Two days sick leave was granted.

30 September 2005

He walked unaided but still had not attended physiotherapy. Oral analgesics were prescribed. He was reminded to physiotherapy. Three days sick leave was granted.

3 October 2005

He walked unaided but reported low back pain. He still had not attended physiotherapy. Tenderness over left low back was observed. Oral analgesics were prescribed. Three days sick leave was granted.

6 October 2005

He reported that he had attended physiotherapy but complained of low back pain after physiotherapy treatments. He walked unaided and no local tenderness or swelling over back was observed. Three days sick leave was granted.

16 October 2005

He walked with umbrella. Local tenderness over left para-spinal area was recorded. Oral analgesics were prescribed. He was recommended to take up light duty work.

15.  When the Plaintiff was still receiving treatments at TY Medical Practice, he also attended the Accident & Emergency Department (“AED”) of various hospitals. On 11 October 2005 he attended the AED of the Kwong Wah Hospital saying that he had pain on his back.

16.  Examinations at the Kwong Wah Hospital revealed no bruise or wound on his back. There was no tenderness elicited on palpation. His back movements were full and intact. X-rays of his lumbosacral spines revealed no bony injury. He was treated and discharged on analgesic tablets and ointment. Two days sick leave was granted.

17.  On 13 October 2005, the Plaintiff attended the AED of the Queen Elizabeth Hospital.  Examination showed that his general condition was good. Diffuse tenderness over lower back was recorded.  X-ray of lumbosacral spine showed no bony lesion.  He was treated and discharged with 3 days sick leave.

18.  On 16 October 2005 he attended the AED of the Princess Margaret Hospital because of back pain.  Physical examination revealed tenderness over lower back.  He was discharged with analgesics.

19.  The Plaintiff attended AED of the Princess Margaret Hospital over 10 times thereafter.  Sick leave for various periods was given and he was referred to orthopaedic clinic for further management.

20.  Examination by the Department of Orthopaedics & Traumatology of the Princess Margaret Hospital showed that there was no deformity over his back but mild tenderness over his thoracolumbar spine was recorded.  There was no neurological deficit of his lower limbs.  X-ray on his lumbrosacral spine revealed no fracture.  Magnetic resonance imaging (“MRI”) of lumbrosacral spine conducted on 26 May 2006 showed minimal posterior bulging of annulus at L4/5 level. Various periods of sick leave were given.

21.  He was referred to have physiotherapy and occupational therapy treatments at the Princess Margaret Hospital.  He had 30 sessions of work hardening training at the Princess Margaret Hospital.

22.  When the Plaintiff was receiving treatment at the Prince Margaret Hospital, he also received treatments from Quality HealthCare Medical Services Ltd. (“Quality HealthCare”) from 22 December 2005 to 6 April 2006.  This is shown by various sick leave certificates issued by Quality HealthCare and produced to the Court.

23.  No medical report of Quality HealthCare has been disclosed in the Plaintiff’s Lists of Documents filed herein.  However, it is noted from the expert reports of Dr. Wong and Dr. Chun that work injury reports from Quality HealthCare had been made available to them.  In Dr. Chun’s report dated 10 February 2007, he set out the following records of the Plaintiff’s attendance at Quality HealthCare:

3 January 2006

It was recorded that the Plaintiff walked with one stick and seemed in pain. Examination revealed tenderness at lower back, spasm and decreased range of motions, back bent to knee, SLR full and no neurological deficit. He was treated with Dologesic.

9 January 2006

The Plaintiff complained of pain on movement. He was referred to physiotherapy.

21 January 2006

He complained of pain and walked with one stick. Examination revealed no deformity of back except mild tenderness at L4-5.

7 February 2006

The Plaintiff still complained of back pain from thoracic to lumbar. The treating doctor, Dr. Cheng, recorded that “clinically not bad, good movement but come in with a walking stick”.

9 March 2006

The Plaintiff claimed that he was only 20% better. Dr. Cheng found that the Plaintiff could flex to almost ankle level and there was no radiation sign. Dr. Cheng recorded “symptom not consistent with signs”.

23 March 2006

Dr. Cheng recorded that condition about the same and the Plaintiff was still carrying a walking stick. The Plaintiff complained muscle pain at back but no radiation pain.

6 April 2006

The Plaintiff still reported pain. Dr. Cheng recorded that condition was about the same.

24.  Sick leave for various periods was given by Quality HealthCare.

25.  The Plaintiff attended the Yau Ma Tei Jockey Club General Outpatient Clinic (“Jockey Club Clinic”) from 26 September 2006 onwards.  No medical report from the Jockey Club Clinic has been produced to the Court but sick leave certificates produced show that various periods of sick leave were granted.

EVIDENCE OF MEDICAL EXPERTS

26.  Dr. Wong is the Plaintiff’s expert and Dr. Chun is the Defendants’ expert.

27.  Dr. Wong examined the Plaintiff on 18 April 2007 and prepared his report dated 27 June 2007.  The Plaintiff reported the following problems to Dr. Wong at the examination:

(1) persistent swelling in lower back;

(2) persistent stiffness on the posterior aspects of his left shoulder and left side of neck, worse when he lies on his right side; and

(3) persistent low back pain. The back pain increased in cold weather. He also experienced numbness radiating down posterior aspect of his left thigh.

28.  Dr. Wong observed that when the Plaintiff attended the medical examination he was in apparent good health.  His gait and posture were normal. Examination on his lower back showed no swelling.  Skin colour and texture were normal.  Paraspinal muscles in the lumbar spine showed tender and tense with guarding.  Examination of his right leg showed small abrasion scar on anterior aspect of right knee.  Mild local tenderness was recorded.

29.  The Plaintiff responded with positive signs in simulation tests of “vertex compression” and “pelvis-trunk simultaneous rotation” suggesting symptom magnification.

30.  Dr. Wong commented that the Plaintiff’s injuries were appropriately treated with conservative means.  The injury had been adequately rehabilitated by the physiotherapists and occupational therapists.  The right knee wound had healed.  His condition is unlikely to improve significantly with further treatments.  Dr. Wong did not recommend further surgical or medical intervention.

31.  Dr. Wong was of the view that the period of sick leave granted to the Plaintiff was justifiable and adequate.

32.  Dr. Chun examined the Plaintiff on 2 February 2007 and prepared his report dated 10 February 2007.

33.  Dr. Chun recorded the following complaints from the Plaintiff:

(1) low back pain, pin-pricking, swelling from time to time if walking a little bit more. It was intermittent. Pain occurred in cold weather, or when using cold water, or when sleeping (especially when sleeping supine), or when sitting for long (30 minutes), or when walking for long (30 minutes), or when standing for long (30 minutes), or when suddenly standing up, or when bending forward or backward, or when lifting heavy object (5 kg). There was also stiffness;

(2) bilateral knee pain, mostly left knee pin-pricking pain occurred after walking for long (30 minutes);

(3) radiating pain from back down to the left foot, left with stiffness of the great toe from time to time. Symptom first appeared 2-3 months after the Incident. It was intermittent and it occurred after walking for long (30 minutes) or when bending down;

(4) pain at the front upper chest wall during breathing from time to time. It first appeared 3-4 months after the Incident. It occurred after exercise, or when he got tired or at rest after walking; and

(5) left-sided neck pain when sleeping sometimes, associated with a twitch of the neck. It first appeared after completion of occupational therapy treatments.

34.  Dr. Chun examined the low back, chest, knees and lower limb neurology of the Plaintiff.  The examinations revealed no abnormality other than the following observations:

(1) muscle guarding on the left side of low back;

(2) diffused tenderness at spine and paraspinal muscles bilaterally from T8 to S3; and

(3) complained of low back pain in SLR at 30 degree to both legs.

35.  Dr. Chun took X-rays on the Plaintiff’s spine and knees.  No abnormality was revealed other than the following observations:

(1) slight reduction of cervical lordosis; and

(2) small posterior osteophytes at C5-6 level.

36.  Dr. Chun also conducted Waddell’s simulation tests on the Plaintiff with the following results:

(1) Shoulder pressure: complained of slightly increased low back pain.

(2) Shoulder elevation: negative.

(3) Pelvic rotation: complained of slightly increased low back pain.

(4) Superficial tenderness: over-reaction on finger touch.

(5) Rock-rolling of the lower limb: complained of low back pain.

37.  Dr. Chun is of the view that the injury to the Plaintiff’s low back should be a minor tissue contusion.  The ligamentum flavum hypertrophy detected by MRI on 26 May 2006 was not caused by the soft tissue contusion and the Plaintiff’s complaints on front chest wall pain and neck pain were totally unrelated to the injury.

38.  The Plaintiff’s gait and station were normal but he complained of severe pain when performing such acts.  Dr. Chun observed that there was no body language or gesture displayed to suggest that the Plaintiff was in such severe pain.

39.  Dr. Chun noted that there was no objective abnormality at the low back. He was of the view that the Plaintiff’s diffused and widespread tenderness of the spine was non-conforming the initial finding of mild tenderness at the back.  There was no objective neurological deficit and the Plaintiff’s normal MRI of the thoracic and lumbar spine showed no neural compromise at all in support of such objective finding.

40.  Dr. Chun concluded that the Plaintiff was exaggerating his symptoms and disability at the examination.

41.  Dr. Chun is of the opinion that the Plaintiff’s condition had long stabilized.  No further treatment was required.  He was able to return to work as waterproofing applicator without restriction.  Dr. Chun was of the view that reasonable sick leave should be one month.

42.  Dr. Wong and Dr. Chun had prepared a joint supplementary medical report dated 17 March 2009 on the Plaintiff relying on information obtained when they previously examined the Plaintiff.

43.  Dr. Chun and Dr. Wong agreed that no lower limb neurological deficit was noted on both occasions when the Plaintiff was examined by them.

44.  Both doctors agreed that the MRI finding of degeneration at the Plaintiff’s lumbar spine was pre-existing.  Dr. Wong opined that the condition could have been aggravated and worsened by the impact of blow at the time of the Incident followed by the fall onto the knees.  Dr. Chun opined that the L4-5 disc bulging was certainly not caused by the alleged injuries and the alleged injuries did not aggravate the L4-5 bulge.  Dr. Chun referred to various medical literatures and studies in the joint report to support his view.

45.  Both doctors agreed that the Plaintiff’s injuries were appropriately treated with conservative means.  The injuries had been adequately rehabilitated by the physiotherapists and occupational therapists.  The Plaintiff’s condition was unlikely to improve significantly with further treatments. 

46.  In view of the Plaintiff’s persistent low back pain, Dr. Wong concluded that the Plaintiff was unlikely to be able to return to his previous position as manual labourer at the construction site.  He would likely need to change to jobs which required less physical demand and exertion on his back.

47.  Dr. Chun held different view.  He took the view that returning to work is part of the recovery process.  He maintained his view that the Plaintiff was able to go back to work as before with little limitation or restriction.

48.  Both doctors maintained their original views on the sick leave granted to the Plaintiff.

EVIDENCE OF THE PLAINTIFF

49.  The Plaintiff testified at the assessment hearing and called no other witness.

50.  The Plaintiff relied on his witness statement dated 22 January 2009 which had been adopted at the hearing as his evidence-in-chief.

51.  In his witness statement, the Plaintiff stated that he still suffered from the following symptoms:

(1) pain and numbness in lower back, radiating down to his left leg;

(2) aggravated pain during change of weather, after prolonged walking or sitting;

(3) difficulty in descending stairs; and

(4) diminished ability in lifting heavy weights.

52.  In his witness statement, he stated that at the time of the Incident, he was employed as a waterproofing applicator with a daily wage of $600.00.  He was required to transport heavy weights, climb up and down and work on platforms in tunnel.

53.  He claimed his monthly earnings were about $15,600.00 on average.

54.  In his witness statement, he said that due to his injuries as a result of the Incident, he could not cope with his previous job or any gainful employment and he had remained unemployed since then.

55.  The Plaintiff said at the hearing that he was supported by his friends and elder brother.

56.  He said that he had attempted to find a job as security guard without success.  When he was cross-examined by Mr. Wright, counsel for the Defendants, he admitted that he had not applied for the security guard permit.  His explanation was that he could not afford the fee which was in the region of about $400.00.  He also admitted that he had not made any job application.  His effort of finding employment was to ask friends to introduce job to him.

57.  He said that he still had pain after walking or sitting for 45 minutes or an hour.  He also felt pain after standing for a while or walking downstairs.  He had to take pain killer for relief.  He still had to attend the Jockey Club Clinic once a month to get pain killer.

58.  He also felt sharp pin pain on the left part of his body starting from his neck when sleeping.  He agreed that his neck was not hurt in the Incident but said that his neck pain was an effect from the Incident.

59.  He said that he still felt pain at his right knee.

60.  He said that he agreed to resume light duty when he attended Dr. Man of TY Medical Practice on 17 September 2005 because he was told that if he did not agree to resume light duty, he would not get medicine.  He disagreed that he was capable of resuming light duty at that time.

61.  He said that he had to use an umbrella to help him walking on 16 October 2005 when he attended medical treatment at TY Medical Practice because of pain on his right leg and back.  He explained that he carried walking stick to attend medical treatments on other occasions because he thought that he might have pain at his knees.  He maintained that his knees had not completely healed and he still had light pain at his right knee.

62.  He said that he changed from one hospital to another hospital because he wanted to have MRI check, medicine and sick leave.

63.  When the Plaintiff was cross-examined by Mr. Wright, he admitted that he had exaggerated his symptoms when he was examined by Dr. Wong and Dr. Chun but maintained that he did have back pain at that time.

64.  He also admitted that he had exaggerated his symptoms when he attended medical treatments in order to get medicine.  He also maintained that he did have pain at that time.

65.  The Plaintiff agreed that he was a causal labourer.  He said his daily wage was $600.00 and he used to earn $20,000.00 to $25,000.00 each month when he was working at the airport project.

66.  He agreed that his income was $15,500.00 for May 2005, $13,900.00 for July 2005 and $11,400.00 for August 2005.  He agreed that he had not worked in June 2005 because materials for his work were not available.

67.  He said that if he worked with the same employer for more than 3 months, his employer would contribute to his Mandatory Provident Fund Scheme (“MPF”).

68.  The Plaintiff agreed that he had not paid the fee of $2,100.00 to Dr. C.L. Cheng claimed in the Revised Statement of Damages.  He also agreed that he had only paid $300.00 to TY Medical Practice for their medical report and he had not paid other fees incurred for his medical treatments at TY Medical Practice.  The fees for these treatments were paid by the Defendants’ insurer.

69.  He said that he had lost the receipts for payments made to the Department of Orthopaedic & Traumatology and the Department of Occupational Therapy of the Princess Margaret Hospital.

70.  He said that he attended medical treatments by taxi but he had not kept receipts for his travelling expenses.

71.  He said that he bought rice and lentil soup as tonic food.  He also bought medicine for reducing blood pressure and vitamin. He agreed that his high blood pressure was not caused by the injuries suffered in the Incident.

72.  He said that he was still taking medication and would need further medical treatments for his pain.

FINDINGS

73.  The Plaintiff suffered slow velocity injuries in the Incident.  X-ray on lumbar spine and right knee taken on the date of Incident showed no fracture. Dr. Wong and Dr. Chun agreed that the injuries suffered by the Plaintiff were mild soft tissue injuries.  Both doctors agreed that such injuries would improve with passage of time.

74.  The Plaintiff complained to Dr. Chun in February 2007 of low back pain, bilateral knee pain, radiating pain from back down to left foot, pain at front upper chest wall and left-sided neck pain.

75.  Dr. Chun was of the view that the Plaintiff’s alleged chest wall pain, neck pain and left knee pain were totally unrelated to the injuries caused by the Incident.

76.  Dr. Chun found that there was no objective abnormality at the Plaintiff’s low back and there was no objective neurological deficit.  The Plaintiff’s normal MRI of the thoracic and lumbar spine also showed no neural compromise at all.

77.  The Plaintiff complained to Dr. Wong in April 2007 of swelling in lower back, stiffness on posterior aspect of left shoulder and left side of neck, low back pain and numbness radiating down posterior aspect of his left thigh. However, Dr. Wong’s examination of his lower back revealed no swelling.

78.  The Plaintiff admitted that he had exaggerated his symptoms when he attended medical treatments and medical examinations.  The same was observed by Dr. Cheng of Quality HealthCare as early as March 2006.  This is also confirmed by the Waddell’s simulation tests conducted by Dr. Wong and Dr. Chun.

79.  The Plaintiff did not complain left knee pain and chest wall pain when he was examined by Dr. Wong.  I agree with Dr. Chun that the Plaintiff’s alleged neck pain, left knee pain and chest wall pain (if they did exist) were not caused by the injuries suffered by the Plaintiff in the Incident.

80.  Medical reports placed before me do not show that the Plaintiff had complained about radiating pain before he attended medical examination by Dr. Chun.  Dr. Chun found that there was no explanation for the Plaintiff’s complaint of radiating pain down the left foot in the absence of any neural compression on the MRI study.  I accept Dr. Chun’s findings and find that the Plaintiff’s complaints of radiating pain from back down to left foot to Dr. Chun and of numbness radiating down posterior aspect of his left thigh to Dr. Wong were products of the Plaintiff’s efforts in exaggerating his symptoms.

81.  I also agree with Dr. Chun that the MRI finding of degeneration at the Plaintiff’s lumbar spine was pre-existing and that the injuries suffered by the Plaintiff in the Incident had not aggravated the pre-existing condition of the degeneration.

82.  I find that the injuries suffered by the Plaintiff in the Incident had caused mild soft tissue contusion to his low back and abrasion to his right knee.  The knee injury was only a superficial abrasion wound which should be recovered well within a few weeks with no residual abnormality.  The back pain was caused by soft tissue injuries which would improve and recover with passage of time and treatments without material residual disability.  If there was any residual pain, it should be minor and would not materially affect his ability to return to his original work.

83.  The Occupational Therapy Rehabilitation Outcome Reports prepared by the Princess Margaret Hospital based on assessments done in June and July 2006 stated that the Plaintiff could not resume previous job and suggested that the Plaintiff changed job with lesser physical demand.

84.  The said recommendations were based on findings of decreased in lifting ability and in ladder climbing ability as the Plaintiff complained of pain during evaluation.

85.  It is noted that the assessment results of the Plaintiff’s bilateral lifting in July was worse than the assessment results of June after further 4 weeks of work hardening training in between.  The static bilateral arm lift dropped from 26.8 kgf to 22.3 kgf.  The dynamic bilateral lifting dropped from 6.8 kg to 4.5 kg for floor to knuckle lift and dropped from 9.1 kg to 6.8 kg for knuckle to shoulder lift.

86.  I find that these again were products of the Plaintiff’s efforts of exaggerating his symptoms.  I accept Dr. Chun’s opinion that the Plaintiff was able to go back to work as before with little limitation or restriction.

PAIN, SUFFERING AND LOSS OF AMENITIES

87.  At the time of the Incident, the Plaintiff was aged 31.  He is now aged 36.  I accept that he enjoyed good health before the Incident.  The Plaintiff claimed $300,000.00 under this head in his Revised Statement of Damages.  Mr. Wright submitted that the award should at most be $100,000.00.

88.  Mr. Wright cited the following cases to support his contention.

89.  In Chan Mei Hing and Another v Lam Kok Heng, HCPI 786/2004, unrep., 11 December 2006 (Master S. Kwang), the plaintiff met a traffic accident and experienced bilateral knee pain and back pain.  She was sent to the Accident & Emergency Department of the Prince of Wales Hospital (“PWH”).  No meniscal, ligamental injury nor legs neurological defects were detected.  X-ray showed no fracture.  She was treated with analgesic and physiotherapy.  She was discharged from hospital on the same day.  She was re-admitted to PWH 3 days later for increased in pain.  She could not walk and needed to use elbow crutches for walking.  She complained of persistent pain in her knee and back.  She later also complained of low back pain, left buttock and left hip pain as well as discomfort over her whole left lower limb.  The MRI scan showed that there was a posterior left sided annular tear of the circumferential type with associated disc bugle at L5-S1 level.  The plaintiff complained of increase back pain which radiated to her left ankle with left leg numbness and left sciatica.  Treating doctor opined that the plaintiff’s injury at L5-S1 level was compatible with her symptoms and was likely caused by the accident.  The learned Master found that the complaint of severe and persistent back pain alleged by the plaintiff was not genuine and she had exaggerated her pain.  The learned Master was of the view that the plaintiff should not have much difficulty in leading a normal life and any residual pain would not materially affect her ability in returning to her original work as a full time teacher.  The learned Master assessed the amount of damages under this head at $200,000.00.

90.  In Wong Choi Fung v Fung Kai Public School o/a Fung Kai Care and Attention Home for the Elderly HCPI 534/2004, unrep., 14 February 2006 (Suffiad J) the Court was dealing with a claim for prolapsed disc involving back pain.  The learned judge observed that: “it would appear from awards made by the Hong Kong courts, that for that type of injuries and disabilities, the courts would make a distinction between whether there are or are not nerve root compression involved.  If there are nerve root compression, the awards tend to be on the higher end of the range because it would tend to prolong as well as increase the pain involved.”

91.  Mr. Wright also referred me to the following cases which had been summarized in the judgment of Ma Chak Yau v Chan Wai Man and another DCPI 2318/2006, unrep., 18 October 2007 (H H Judge Thomas Au as he then was):

(1) Chan Kwei Duen v East Country Company Ltd t/a Gold River Vietnamese Food Shop (unrep., DCPI 665/2005, 3 February 2006, H H Judge M Ng). In this case, the Plaintiff was found to have sustained a mild displaced fracture of coccygeal spur. She had been suffering from back pain for over 9 months, and still had discomfort at the injured area. The learned judge awarded her HK$150,000.00 under PSLA.

(2) Fung Yuet Hing v Mok Sun (unrep., DCPI 1706/2006, 3 November 2006, H H Judge CB Chan). The Plaintiff was injured in her left forehead, left neck and occiput. She was granted sick leave for 6 weeks and attended 10 physiotherapy sessions. She was awarded HK$160,000.00 as damages for PSLA.

(3) Wong Shuk Lei v Leung Ming Kwong (unrep., DCPI 560/2005, Deputy District Judge E Yip, 29 December 2005). The Plaintiff suffered low back pain and injury to her face. It was found that the range of motion of her lumbar spine had substantially decreased because of the injury to her back. The Court awarded her HK$250,000.00 under PSLA.

(4) Yau Shui Ming v Excellent Development Ltd (unrep., DCPI 147/2002, 28 May 2003, H H Judge Lok). The Plaintiff chef suffered injury to his back. He had since been suffering from persistent back pain with limited range of motion. There was also numbness in his back. The learned judge awarded him HK$200,000.00 as damages for PSLA.

(5) Tam Kwok Man v The Kowloon Motor Bus Company (1933) Ltd (unrep., HCPI 755/2001, 11 July 2003, Beeson J). The Plaintiff bus station regulator suffered a fall and injured his low back when his office chair broke and lost one of its wheels. He had tenderness at the lumbar and sacral region of his back. There was also reduced movement of the back. The Court awarded him HK$150,000.00 under PSLA.

92.  Mr. Wright submitted that: “The plaintiff’s back condition does not involve any disc pathology and there are no neurological deficits, which means there is no radiating pain.  He sustained a soft tissue injury which healed after a few months, at the latest by 28^th November 2006.  This plaintiff’s injury should be assessed, at most, at about $100,000.”

93.  Although I agree with the observation of Mr. Wright, I find his proposed figure a bit on the low side.  Furthermore, the Plaintiff had also suffered injury to his right knee albeit a superficial abrasion wound.  Having regard to the cases referred to me, I consider that an appropriate award under this head shall be $120,000.00.

PRE-TRIAL LOSS OF EARNINGS AND MPF

94.  Medical reports and sick leave certificates placed before me show that the Plaintiff had been granted sick leave almost continuously from 12 September 2005 until 28 November 2006.  He had also been granted further intermittent sick leave from 1 March 2007 to 13 July 2008.

95.  Dr. Wong was of the view that the period of sick leave given to the Plaintiff up to the date when he examined the Plaintiff was justifiable and adequate.  Dr. Wong opined that no further sick leave was required.  Dr. Chun opined that reasonable sick leave for such minor injury should be one month.  In putting forward this opinion, Dr. Chun was favouring the school of thought that work played a part in rehabilitation.

96.  Mr. Wright submitted that the Plaintiff had been able to work at the latest since November 2006.

97.  The Employees’ Compensation (Ordinary Assessment) Board also accepted that sick leave up to 28 November 2006 was attributable to the injuries suffered by the Plaintiff in the Incident.

98.  I find that reasonable sick leave for the Plaintiff to fully recover from his injuries shall be from 12 September 2005 to 28 November 2006 i.e. 14 months and 17 days.

99.  The Plaintiff agreed that he was a causal labourer on daily wage.  His income fluctuated as he worked only when required.

100.  In his Lists of Documents filed herein, the Plaintiff only disclosed documents on his income covering the period from May to September 2005.  There is no dispute that the Plaintiff earned $15,500.00 in May 2005, $13,900.00 in July 2005 and $11,400.00 in August 2005.  As the Plaintiff sustained injuries on 12 September 2005, information on September 2005 is for an incomplete month.  Accordingly, I have not taken into account the Plaintiff’s income for September 2005 when I consider the amount of earning of the Plaintiff for the material times.  The Plaintiff admitted that he had not worked in June as materials were not available and there was no work for him.

101.  The average monthly earning of the Plaintiff for the period from May to August 2005 was $10,200.00.  I agree with Mr. Wright that this figure shall be used in calculating the Plaintiff’s loss of earnings.

102.  Mr. Wright submitted that an employer did not have to make MPF contribution for causal labourer on daily wage and the Plaintiff should have no claim for loss of employer’s contributions to his MPF.  I disagree.

103.  Under the Mandatory Provident Fund Schemes Ordinance (Cap. 485), an employee may be a regular employee or a causal employee.  A causal employee includes a person who works for an employer in the construction industry and is employed on a day-to-day basis.  Employers in construction industry are required to enroll causal employees employed by them for MPF regardless of the length of the employment period and to make contributions to their MPF.  For causal worker earning a daily wage of $600.00, the employer’s contribution is 5%.

104.  It is noted that the wages records issued by the Plaintiff’s former employer, Bekk Solutions Limited, had recorded deduction of 5% of the Plaintiff’s wages as employee’s contributions to his MPF.  The employer should have made the same contributions to the Plaintiff’s MPF.

105.  In the premises, the Plaintiff’s loss of earnings inclusive of MPF contributions from his employer should be $10,710.00 per month.  For 14 months and 17 days, the loss is $156,009.00.

FUTURE LOSS OF EARNINGS

106.  As I have found that the Plaintiff should be able to return to his original work after 28 November 2006.  The Plaintiff suffers no future loss of earnings.

107.  The Plaintiff remained unemployed after 28 November 2006 not because he had not been recovered from the injuries but because he did not make efforts to find a job.  No damages under this head will be awarded.

LOSS OF EARNING CAPACITY

108.  In view of my above findings as to the recovery of the Plaintiff and his ability to return to his original work, no award under this head is appropriate.

COSTS OF FUTURE MEDICAL TREATMENT

109.  Both medical experts of the Plaintiff and the Defendants were of the view that no further medical treatment was required or recommended.  No award under this head is appropriate.

SPECIAL DAMAGES

110.  The Plaintiff claimed $7,825.00 as medical expenses.  He agreed that he had only paid $300.00 to TY Medical Practice and needed not paid Dr. C. L. Cheng.  The costs for his medical treatments at TY Medical Practice and Quality HealthCare were paid by the Defendants’ insurer.  In such case, only $4,925.00 is allowed as the medical expenses to the Plaintiff.

111.  The Plaintiff’s claim for tonic food was not supported by receipts. When the Plaintiff was cross-examined, he said that the tonic food included rice and lentil soup, medicine for high blood pressure and vitamin.

112.  I agree with Mr. Wright that rice and lentil soup could not be qualified as tonic food and medicine for high blood pressure was not related to the injuries caused by the Incident.  However, I shall allow a reasonable sum of $500.00 to the Plaintiff to cover his expenses for purchasing vitamin and other food which would help him to recover from the injuries.

113.  The Plaintiff claims $3,000.00 as travelling expenses.  Mr. Wright proposed to allow $2,000.00.

114.  Medical reports and sick leave certificates placed before me showed that the Plaintiff had attended medical treatments for more than 50 times prior to 28 November 2006.  On top of these, the Plaintiff also had to attend physiotherapy and occupation therapy treatments.  In view of the number of attendance, I am prepared to allow $3,000.00 claimed as travelling expenses to the Plaintiff.

115.  In the premises, I award $8,425.00 as special damages to the Plaintiff.

SUMMARY OF MONETARY AWARD

116.  I assess that the damages payable by the Defendants to the Plaintiff in this Action is $284,434.00.

117.  The Plaintiff does not dispute that he had received Employees’ Compensation payment (“EC Payment”) in the sum of $204,386.00.  The balance payable by the Defendants to the Plaintiff under this judgment is $80,048.00. Particulars are as follows:

(1) PLSA	$120,000.00
(2) Pre-trial loss of earnings	$156,009.00
(3) Special damages	$8,425.00
Sub-total	$284,434.00
Less EC Payment	$204,386.00
Balance	$80,048.00

118.  I make an order nisi for the Defendants to pay to the Plaintiff interest at 2% per annum on the said sum of $80,048.00 from date of Writ until judgment.

119.  I also make a costs order nisi against the Defendants in favour of the Plaintiff for the assessment of damages proceedings.  In view of the amount of damages awarded, which is well within the jurisdiction of the District Court, the appropriate scale for the costs payable by the Defendants to the Plaintiff shall be on the District Court scale.

120.  The above orders nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.