LAU WING YEUNG v. KOWLOON CRICKET CLUB

HCPI 955/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 955 OF 2013

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ASSESSMENT OF DAMAGES
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1. This is a case of “slip and fall” during work. Liability has been admitted.

I.  Background

2. The plaintiff was an experienced pantry chef.  According to the employment contract, he was employed to commence work in the defendant’s kitchen on 11 March 2008 as the Head Pantry Chef (monthly salary of HK$16,000 for a period of 2 years with a probation period of 3 months).

3. The accident happened on 20 April 2008 which was within the plaintiff’s probation period.

4. He attended A&E and was admitted to the Orthopaedics and Traumatology Department of Queen Elizabeth Hospital.  There were findings of lower back tenderness, reduced Straight Leg Raising, decrease in sensation and mild decrease in power of the right leg.  X-ray showed no fracture or dislocation and the diagnosis was back contusion.

5. The plaintiff was treated with physiotherapy and was discharged on 26 April 2008.

6. MRI scan was performed on 26 July 2008 which showed a prolapsed intervertebral disc at L5/S1 level with S1 root impingement.

7. Sick leave was given from 20 April 2008 to 22 October 2008.

8. However, on the same day the Sick Leave ran out, the plaintiff wrote to the defendant stating, amongst others, that: “I am afraid to return to work, afraid of another accident.”

9. The defendant replied on 30 October 2008 that it is prepared to continue to pay the plaintiff’s sick leave payment of 4/5 of his salary from 23 October 2008 until his next assessment in December 2008.

10. After the December assessment, Dr Cheng Kin Hung of the Department of  Orthopaedics & Traumatology of QEH wrote: -

“His condition is static, although there is residual back pain. He is advised to avoid handling heavy objects. Please consider arranging lighter duty for him for the coming three months. We will arrange for a Functional Capacity Evaluation for him.”

11. Despite this, by mutual agreement, the plaintiff would not return to work but to take unpaid leave from 12 December 2008 until the scheduled Functional Capacity Evaluation in February 2009.

12. On 28 February 2009, the Functional Capacity Evaluation reported that the plaintiff could perform up to medium physical demand characteristic and his physical capacity met his job demand.

13. Dr Ho Chin Hung of the Department of Orthopaedics & Traumatology of QEH assessed the plaintiff on 3 March 2009 and wrote: -

“Basically he could resume his duty as a cook. What I suggest is the allowance of intermittent rest (10 minutes) after standing for 2 hours in the coming 3 months so that he can have a better transition from sick leave to work.”

14. However, the plaintiff preferred to return to work after completion of his physiotherapy and the defendant agreed that he should return to work on 4 May 2009, still under probation.

15. The defendant terminated the plaintiff’s employment on 22 June 2009 without the plaintiff finishing his probation.

16. On 29 August 2009, the plaintiff started working part-time at the Helena May Club.

17. He had a Road Traffic Accident on 3 November 2009 and attended the A&E of QEH.

18. According to the A&E report, the plaintiff’s major complaint was neck and back pain, there was tenderness to the back of the neck and reduced Straight Leg Raising but X-ray of both neck and back showed no fracture.  The clinical diagnosis was sprained neck and back.  He was treated and discharged on the same day.

19. A medical report from Dr Wong Sze Nga of TKOH dated 3 January 2012 stated that the plaintiff first attended TKOH clinic on 13 November 2009 and he had neck sprain during a road traffic accident on 3 November 2009.  He attended for persistent neck pain and mild numbness of right hand after the accident.  Sick leave was given more or less continuous from 13 November 2009 to 29 November 2010 for neck pain.

20. Dr Wong also mentioned that the plaintiff attended twice in 2010 (31 August 2010 and 21 October 2010) for back pain “on and off since injury in April 2008”.  Oral and topical analgesics were prescribed but no sick leave granted for these two consultations.

21. The plaintiff alleged that he continued to work part time at the Helena May Club until 23 March 2010.  He said he stopped because he could not cope.

22. The plaintiff alleged that he found another job only in August 2013, some 3½ years later, at a restaurant called “Mr. Steak”, and this was also a part time kitchen job.

II.  PSLA

23. The plaintiff claims HK$350,000 under this head on account of his alleged persistent back pain, weakness and numbness in his lower limbs.

24. Both experts agreed that the plaintiff suffered from a contusion of the low back and that the L5/S1 disc degeneration (as shown in the MRI scan) was likely pre-existing.

25. Dr Jack W K Wong, the plaintiff’s expert, concluded that the accident caused aggravation of such pre-existing condition.

26. Dr Chun Siu Yeung, the defendant’s expert, pointed out that there was poor correlation between MRI  findings and actual symptoms: -

“…consistent data in the medical literature indicating that doctors cannot tell who is giving back pain, or how severe the back pain is by use of image studies. Other than fracture, infection, cancer and major disc herniation with obvious nerve root compression and appropriate clinical findings (in this case there is no obvious nerve root compression reported, no appropriate correlating clinical findings) (my underline), image findings do not indicate who is in pain, or how severe the pain is.”

27. If one looks at the “clinical findings”, there are more than a few question-marks: the inconsistent initial presentation after the accident which showed “dramatic improvement” within 30 minutes, sensory reduction in 7 nerve roots dermatomes not corresponding to the MRI findings of (at best) 1 nerve root involvement, questionable Straight Leg Raising test results etc.

28. Further, during the first joint expert assessment, although there were plenty of “subjective” complaints at the first expert examination (pain and tenderness, reduced sensation on lower limbs etc), there were discrepancies between sitting and supine Straight Leg Raising and positive Waddell’s Stimulation tests.  These indicated a degree of symptoms exaggeration (consciously or subconsciously).  There were also no muscle wasting, normal motor power and normal reflexes which were “objective” findings.

29. Dr Chun’s opinion was that the plaintiff’s symptoms and signs were “inappropriate and exaggerated”, “his numbness and weakness cannot be genuine” and that any on and off back pain might be not related to the accident but to his pre-existing back condition.

30. It would appear that Dr Wong failed to address such issues.  As such, I prefer Dr Chun’s opinion.

31. After the road traffic accident in November 2009, the plaintiff was consulting GOPC doctors some 64 times and obtained almost 6 months of sick leave for neck pain etc (until May 2009).

32. On 31 August 2010, there was again a record of the plaintiff’s complaint of back pain.  There were 2 further complaints of back pain (15 September 2010 and 21 October 2010).  No sick leave was given.

33. Interestingly, the emergence of the complaint of back pain appeared to coincide with the joint expert assessment of the current claim (on 2 September 2010). Yet, the plaintiff failed to mention the road traffic accident and the neck pain to the experts.  He offered no credible explanation of this omission under cross-examination.

34. The plaintiff in fact commenced another action in the District Court regarding the road traffic accident (DCPI 2491/2012).  The Statement of Damages in that claim showed inconsistencies with the current claim (eg claim that his past health was “good” prior to the road traffic accident, claim that of “difficulty to resume work” as a result of the road traffic accident (with no mention of the accident in this current claim) etc.).  

35. The plaintiff was clearly attempting to conceal one accident from the other in the courts in order to make a “double claim”.

36. This raise serious questions as to the credibility of the plaintiff and, giving him full benefit of the doubt, I find that he has suffered no more than a mild soft-tissue back injury and the “residual” symptoms, if any at all, are not persistent or severe as the plaintiff alleged and may be more likely caused by his pre-existing back degeneration and not by the accident.

37. Having taken into consideration the cases of Yip Mau Kei v Wong Kam Tim DCPI 1905/2013, Dayawon Fe Batiancila v Chien Chi Toepker DCPI 118/2012, Chu Sio Iong v Cheung Ho Yin DCPI 580/2011 and Tamang Udas v Global Sunny Engineering Ltd HCPI 732/2011, I am of the view that the appropriate award under PSLA is HK$90,000.

III.  Pre-trial loss of earnings

38. The plaintiff is claiming HK$1,110,060 under this head of claim because of his persistent weakness and pain to his back etc and could no longer work as a full time chef.

39. I have reservations whether the plaintiff has any “residual” symptoms at all, and both experts agreed that he could resume his pre-accident job as a chef.  His treating doctors and Functional Capacity Evaluation reported much the same as early as December 2008 and February 2009 (and there were evidence of substantive improvement prior to these dates).

40. The events concerning the plaintiff’s “re-introduction” to work warrants some discussion.

41. The defendant did the following: -

(a) Paid 4/5 of his salary after the plaintiff sick leave ran out (from 23 October 2008 until 12 December 2008);

(b) when there were “no suitable light duties” in December 2008, the defendant allowed the plaintiff to take unpaid leave but reserve his post until the Functional Capacity Evaluation;

(c) When the Functional Capacity Evaluation reported “meet job demand” in February 2009, the defendant accommodated the plaintiff’s request not to commence work until May 2009;

(d) The defendant repeatedly informed the plaintiff that it could accommodate his return to work as per the doctor’s request for “light duties”.

42. In contrast, the plaintiff did the following (according to the plaintiff’s attendance record which was not disputed): -

(a) On the first day of work (after more than one year of rest!), he took a sick leave.

(b) The second day was his day off.

(c) On the third day, he came in at 8:04 am and left at 1:55pm.

(d) On the fourth day, he failed to turn up at work without any sick leave certificate.

(e) He then took 4 consecutive days of sick leave and the day following was his day off.

(f) For the whole of the next week, he left work no later than 2:37pm.

(g) He failed to turn up to work without sick leave certificate for 2 further days.

(h) For the days he actually turned up, he again left work at around 2pm.

43. The plaintiff certainly did not give an impression as someone keen to impress his employer during the probation period.

44. The plaintiff said that the defendant has arranged for him to perform kitchen jobs like cutting meat and preparing cold meat, and said that he could not stand for long so he went home in the afternoon.  During cross-examination, the plaintiff attempted to explain why he could not take “intermittent rests”.

45. I find it unbelievable that the defendant would not allow the plaintiff to take suitable lighter duties and “intermittent rests” but would yet allow the plaintiff to leave work (on the days he actually turned up!) whenever he pleased.

46. The defendant’s generosity and patience were not limited to just this: they had been very accommodating towards plaintiff’s requests and had been patiently waiting for over 1 year for his return.

47. It is illogical to suggest that after all these efforts to retain the plaintiff’s service, the defendant did not accommodate his requests for lighter duties and “intermittent rests”, and somehow “forced” him to quit.

48. All these support what Mr Chan King Man, the defendant’s witness, said about the plaintiff’s work performance: despite the “light duty” arrangements, the plaintiff merely showed his face, messed around and wasted time.

49. All such behaviours tied in with Dr Chun’s observation that: -

“Mr. Lau was most probably exaggerating and dramatized his symptoms and disability from the start.”

50. Dr Chun’s opinion is that “reasonable sick leave should not be more than 3 months”.  As such, the plaintiff’s treating doctors were generous in granting sick leaves for about 6 months.  I would take the middle figure of 4.5 months.

51. As for the road traffic accident in 2009, I agree with Dr Chun that this caused only a mild neck injury which was unrelated to the current accident.  His subsequent complaints of back pain on 3 occasions in 2010 were mild and even if these were genuine complaints, these could only be caused by his pre-existing back degeneration and not related to the current accident.

52. The monthly income of the plaintiff was HK$16,000, so his pre-trial loss of income , including MPF, should be:

    HK$16,000 x 4.5 x 1.05 = HK$75,600

IV.  Loss of Earning capacity

53. For reasons stated above, there should be no award for loss of earning capacity.

V.  Future loss of earnings

54. There should also be no award for future loss of earnings.

VI.  Future medical expenses

55. I agree with Dr Chun and found that no future medical treatment should be required so there is no award under this head.

VII.  Special damages

56. The plaintiff is claiming HK$13,825 under this head.

57. However, some of these expenses were related to the plaintiff’s road traffic accident.

58. I would allow reimbursement of medical expenses incurred prior to the road traffic accident which comes to HK$3,960.

59. I would further award HK$1,000 for tonic food and HK$1,000 for travel expenses.

VIII.  Summary

60. I summarise the above awards as follows:

	HK$
PSLA	90,000
Pre-trial loss of earnings and MPF	75,600
Post-trial loss of earnings	0
Loss of earning capacity	0
Future medical expenses	0
Special damages	5,960
Subtotal (excluding interest)	171,560
Minus Employees Compensation	(312,000)
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Total:	0
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IX.  Interest

61. As the award is below the ECC award the plaintiff has already received, no interest should be awarded.

X.  Costs

62. I agree with Mr Gidwani that this case should never be brought after the plaintiff received the ECC compensation which, as discussed above, was more than generous.  On top of this, the plaintiff has also received almost 2 months of “sick pay” from the defendant despite the fact that his sick leave has run out.

63. As such, I will give an order nisi that the costs of this action be to the defendant to be taxed in the High Court scale if not agreed with certificate to Counsel.

XI.  Comment

64. As a final comment, I note that the plaintiff appeared to be represented by the same firm for the current claim and DCPI 2491/2012.

65. I am very concerned that the plaintiff’s lawyers failed to take the initiative to remedy the “disclosure failure” of plaintiff at the first joint expert assessment. 

66. It was only when the defendant’s lawyers discovered DCPI2491/2012 that the plaintiff’s lawyers agreed to a second expert assessment and report.

67. In fact, the omission should have been obvious to the plaintiff’s lawyer on receipt of the first joint report.

68. Furthermore, I am very troubled that the plaintiff appeared to be attempting a “double claim” with possible knowledge of his lawyers.

69. In the current hearing, the knowledge of the plaintiff’s lawyers was, of course, not explored.

70. However, I cannot see how the plaintiff’s lawyers can argue that that they are totally unaware of the two claims.  Even if they were to claim that the plaintiff was represented by different solicitors in the same firm, at the very least, the solicitors appeared to have failed to discharge their duties to the court.

71. This is a situation when the plaintiff alleges to suffer from consecutive injuries with overlaps of injuries (back injury) and quantum (e.g. loss of earnings, loss of earning capacity).  It should be obvious to his lawyers that the court might need to apportion the damages with the assistance of properly instructed medical experts.  The plaintiff’s lawyers should have drawn the court’s attention to DCPI 2491/2012 at the earliest stage so that appropriate case management directions could be given.