MUHAMMAD ASGHAR v. TAK SHING METAL CO

HCPI 1027/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1027 OF 2004

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J U D G M E N T

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1.  The plaintiff claims damages for personal injuries sustained by him from an accident which occurred on 19 July 2002 when the plaintiff was in the course of his employment with the defendant at the defendant’s factory when he was hit on his back by the gate of a baling machine which he was operating.

2.  The defendant in this case is a sole proprietorship business.  The sole proprietor of that business is a Mr Fung Shing.  The word “defendant” in this judgment is therefore used interchangeably to denote both Mr Fung Shing as well as his business unless the context states otherwise.

3.  The plaintiff’s claim is founded in negligence, breach of implied terms of the contract of employment as well as breaches of duty under the Factories and Industrial Undertakings Ordinance, the Occupational Safety and Health Ordinance and the regulations thereunder, and also breach of the common duty of care under the Occupier’s Liability Ordinance.  Particulars of such breaches are pleaded in the Amended Statement of Claim.

4.  It should be made clear at the outset of this judgment that the accident in this case involved baling machine No. 4 installed in the defendant’s factory and which was operated by the plaintiff at the material time.

5.  The baling machine in question ought to have 3 gates which were at different levels of the machine, a topmost gate, a middle gate and a lower gate.  However the machine had, for some time before the accident, been without the topmost gate, leaving only a void space where the topmost gate ought to have been.  Therefore the plaintiff knew of only the middle gate and the lower gate relating to this baling machine.

6.  The accident involved the middle gate which hit the plaintiff.  As a result, in his evidence the plaintiff refers to this middle gate as the “upper gate” (i.e. being the upper gate of the two gates which remained in this machine).  So too does the witness called by the defendant.

7.  However, the Accident Report and the declaration taken by the Labour Department’s factory inspector refer to the gate in question as the middle gate.

8.  In this judgment I shall refer to the gate with which the accident is involved as the middle gate despite the fact that in his evidence the plaintiff called it the “upper gate”.

9.  It should also be noted that the photographs produced in evidence do show the topmost gate being present, but those photographs were taken some time after the accident, when the topmost gate had been reinstated by the defendant as a result of the recommendation made in the Accident Report by the factory inspector.

PLAINTIFF’S CASE

10.  The plaintiff is a Pakistani born in 1978.  He came to Hong Kong legally in 1994.  After obtaining his Hong Kong identity card, he started to work in various employments in Hong Kong.

11.  In May 1999 the plaintiff commended working with the defendant who operated a waste metal recycling factory at Ground Floor, 5 Tung Yuen Street, Yau Tong.  The plaintiff was employed as a general worker there.

12.  On 19 July 2002, the plaintiff was working on a baling machine No. 4.  At about 10.30 a.m. the plaintiff had completed one recycling load of material and had loaded the chamber of the baling machine with a second load.  The plaintiff started the machine’s operation.  Then the plaintiff turned around to pick up some material lying on the floor.  When doing so, suddenly the middle gate of the machine sprung open and hit him on his back with force sufficient to knock him to the ground.  The plaintiff was knocked unconscious and was subsequently taken to United Christian Hospital for treatment.

13.  It is the plaintiff’s case that some time before the accident, he had informed the defendant that the middle gate of the machine was malfunctioning and the latch did not automatically spring into the lock when the middle gate was closed.

14.  The plaintiff was told off by the defendant for making the complaint, but the defendant did go to examine the machine.  After some tampering with the spring lock mechanism, the defendant removed the spring and discarded it.  The defendant then showed the plaintiff how to lock the middle gate of the machine in future by inserting his finger into the hole of the bolt and using the finger to manually push the lock across.

15.  Thereafter the plaintiff had also complained several times about the malfunctioning gate which at times would suddenly spring open wide possibly due to the heavy pressure of the compressing plates pressing onto the metal waste material being recycled.  The plaintiff complained because the space in front of the machine being limited, the plaintiff was quite naturally concerned about the sudden swinging out movement of the gate.

16.  However, the plaintiff only received rebukes, swearing and threats from the defendant whenever he complained.  As a result, the plaintiff decided to just put up with it and continue to work as instructed by the defendant fearing that he may risk losing his job if he continued to annoy the defendant.

17.  On the day of the accident, the plaintiff used the manual locking method as told to do so by the defendant to close the middle gate of the machine before commencing the second round of recycling operation.  The plaintiff had used his fingers to push the bolt as far as he could do so manually across the latch hold.

18.  The plaintiff believed that the hydraulic pressure and force of the compressing plates together with the vibration of the machine may have caused the middle gate to suddenly swing open with force and hit him on his back knocking him to the ground unconscious.

19.  After this accident to the plaintiff, factory inspector from the Labour Department attended the defendant’s factory to examine the baling machine in question.  An Accident Report was prepared by the inspector and was adduced into evidence which the plaintiff relied on.

20.  As a result of the findings of the inspector, the defendant was charged with the offence of failing to provide and maintain the baling machine so as to be safe and without risks to the plaintiff contrary to section 6A(1) and (2)(a) of the Factories and Industrial Undertakings Ordinance.

21.  The defendant pleaded guilty to the offence charged and was fined $12,000.

22.  The Brief Facts of the case which was admitted by the defendant when he pleaded guilty stated that the baling machine was malfunctioning in that the spring of the lock was broken and that without the spring the latch of the lock could not be securely fixed.

23.  The plaintiff relied on both the conviction as well as what was admitted by the defendant contained in the Brief Facts to support his case against the defendant.

DEFENCE CASE

24.  In so far as the pleaded defence goes, apart from admitting that the plaintiff was employed by the defendant and worked at the defendant’s factory operating the baling machine and was so working on the morning of 19 July 2002, nothing else have been admitted by the defence, not even the occurrence of the accident.

25.  In so far as the conviction of the defendant is concerned, it was pleaded that the conviction is irrelevant.

26.  Contributory negligence of the plaintiff is pleaded in the alternative, namely that if the accident did happen, the plaintiff was himself to blame for failing to properly secure the gate of the machine.

27.  The only witness called by the defence was a driver employed by the defendant, Ng Siu Keung, who was working at the defendant’s factory on the morning of 19 July 2002.

28.  His evidence was to the effect that at about 10.30 a.m., the plaintiff was working on No. 4 baling machine alone when suddenly he heard the plaintiff shout out loudly.  He together with Fung Shing, the boss, rushed over to where the plaintiff was to see what had happened and found the plaintiff lying on the ground face down.  They took the plaintiff to the middle part of the factory but found no discernable injuries to the plaintiff.

29.  Ng Siu Keung did not witness the accident itself.

30.  An ambulance was called for and Ng Siu Keung accompanied the plaintiff to United Christian Hospital.  He stayed with the plaintiff until other friends of the plaintiff came to the hospital.  He was the only person from the defendant’s factory who was with the plaintiff in the hospital.  He had never told the plaintiff that the plaintiff was struck by the gate of the baling machine which sprang open.

ISSUES AS TO LIABILITY

31.  In light of the above, the factual issues which need to be determined are as follow:

(a)  was the locking mechanism of the middle gate of the baling machine defective;

(b) if so, was the defendant made aware of such defect by the plaintiff;

(c) what steps, if any, were taken by the defendant to remedy the defect;

(d) did the accident happen in the way described by the plaintiff;

(e)  what was the cause of the accident if it happened;

(f)  did the plaintiff himself contribute to the accident happening.

I shall deal with each of the above issues in turn.

Was the locking mechanism of the baling machine defective

32.  In light of the Accident Report by the factory inspector and the conviction of the defendant upon his own plea of guilty including his admission to the contents of the Brief Facts of the case, one would have thought that this was an open and shut matter and that there could be no dispute that the locking mechanism of the middle part of the baling machine in question was defective.

33.  However, this has not prevented Mr Sakhrani, who appeared for the defendant, from making the submission in his final address that because Mr Fung Shing, when pleading guilty to the offence he was charged with, indicated to the Magistrate that he did not agree with the statement in the Brief Facts to the effect that the plaintiff had mentioned to him four days before the accident of such defect, which resulted in the prosecution amending the Brief Facts by deleting that one sentence, therefore the admission by the defendant even of the Amended Brief Facts was plainly not an admission from personal knowledge and inconsistent with the defendant’s firm denial and the known facts.

34.  I am unable to accept that submission if what Mr Sakhrani intended to say was that there was no defect with the locking mechanism of the middle gate of the baling machine in question.

35.  If, on the other hand, what is intended by Mr Sakhrani by this submission is to say that the conviction and the admission by the defendant to the Amended Brief Facts is not to be taken as an admission by him that he had prior knowledge of the defect with the locking mechanism of the middle gate of the baling machine, that is quite another matter.

36.  Given the evidence in this case, in particular the findings made by the factory inspector as stated in the Accident Report, there can be no other conclusion but that the spring of the spring locking mechanism of the middle gate of the baling machine in question was broken or defective such that the middle gate could not be properly locked or secured when the machine was being operated.

Was the defendant made aware of such defect by the plaintiff

37.  The evidence in relation to this issue came only from the plaintiff himself.  That evidence from the plaintiff has already been stated above under the sub-heading “Plaintiff’s case”.

38.  The defendant has not seen fit to give evidence in this case to directly challenge the plaintiff’s evidence in this respect.

39.  Instead the defence have seen fit only to rely on the cross-examination of the plaintiff as well as to rely on the indirect evidence of Ng Siu Keung.

40.  The cross-examination of the plaintiff was directed mainly to the discrepancies and inconsistencies in the evidence given by the plaintiff as to the timing and other details relating to his evidence on this issue.

41.  While his evidence in this case was that the defect with the spring lock occurred some two months before the accident, the declaration given by him to the Labour Department stated that the problem with the spring locking mechanism only occurred on 15 July 2002, i.e. some four days before the accident, and that it was only on the morning of 19 July (the day of the accident) that his boss removed the spring and showed him how to use his finger to move the latch across manually to lock the gate.

42.  Because of such inconsistency between his witness statement and his declaration given to the Labour Department, when cross-examined on such discrepancies, the plaintiff attempted to put the blame for such mistakes or discrepancies onto the interpreter and/or the statement taker.

43.  On the other hand, it has to be borne in mind that the plaintiff is a Pakistani with only 6 years of primary education in a village in Pakistan.  He can understand a bit of Cantonese and some little English but can neither read nor write either.

44.  He claimed that he was still feeling unwell when the declaration given to the Labour Department was taken from him and there may well be some truth in that.  He was unwilling to give the declaration at first but was persuaded by those from the Labour Department to do so, albeit unwillingly.

45.  That declaration was taken with the assistance of a Punjabi interpreter but the declaration was written in English and not in Punjabi, the language used by the plaintiff.  Therefore mistakes as to minor details, made through miscommunication, could well have crept into the declaration as recorded.

46.  Mr Ramanathan, counsel for the plaintiff, readily acknowledged the discrepancies as to timing between the plaintiff’s witness statement and his declaration in relation to when the defect to the locking mechanism first arose.  But apart from the discrepancies in the timing, there is consistency as to the defect with the spring lock and how the defendant removed the spring and instructed the plaintiff to lock the latch manually by using his finger instead.

47.  These are not matters which, with the kind of education the plaintiff had, he could have concocted without it having actually happened.

48.  It should also be noted that these discrepancies as to timing contained in the declaration given to the Labour Department had been referred to by the plaintiff in his witness statement together with his explanation for such difference in the timing.

49.  One further piece of evidence from the plaintiff which was not contained in his witness statement or his declaration to the Labour Department, but only emerged when he gave oral evidence in court was that the baling machine in question made a lot of noise.  He also said the machine vibrated, but the vibration part had been mentioned by him in his witness statement.

50.  His evidence as to the machine making a lot of noise came about when he was asked as to the cause of the middle gate swinging out suddenly.

51.  It was submitted by the defence that his evidence as to the machine making noise was newly invented and not previously contained in his witness statement, a further reason to disbelief the plaintiff.

52.  I do not accept that.  The plaintiff has all along stated in his witness statement that he believed the cause of the gate springing open was due to the compression and hydraulic pressure of the machine when it was operating.  He had also in that context alluded to the machine vibrating.

53.  Given that the machine operated with hydraulic pressure to compress the waste material and vibrated when in operation, it is hardly surprising that there would be loud noise coming from it.

54.  The fact that the loud noise was not mentioned in his witness statement can only be due to the fact that he was not asked about noise when the statement was taken from him, given that he had mentioned about the pressure and the vibration of the machine.

55.  Furthermore, the declaration given by the plaintiff to the Labour Department was only concerned with the defect found in the locking mechanism of the gate.  That the noise of the machine or its vibration was not mentioned in his declaration to the Labour Department is hardly surprising.  Very likely he was not asked about the noise or vibration of the machine because the factory inspector was already aware of that aspect.  That can be seen by the fact that although no mention of such by the plaintiff in his declaration, the factory inspector, in paragraph 3.9 of the Accident Report was able to say that the machine “trembled” during its operation and that the hydraulic platen which induced pressure on the middle gate created a horizontal force which would drive the latch to retreat from the ring.

56.  It is therefore clear that the plaintiff was not asked about the noise and the vibration of the machine because it was something well known to the factory inspector.

57.  The noise of the machine together with its vibration was only brought out in the present trial when the question of what caused the gate to swing open and hit the plaintiff was gone into.

58.  In the final analysis therefore, I accept the evidence given by the plaintiff that the defect with the locking mechanism occurred some two months before the accident and that he had made that known to his boss, the defendant before the accident happened.

What steps were taken by the defendant to remedy the defect

59.  Given that I have found the defect with the locking mechanism of the middle gate of the baling machine existed some two months before the accident and was brought to the notice of the defendant, and from the evidence of the Accident Report such defect still existed on the day of the accident when the machine was inspected by the factory inspector, it must follow that nothing was done by the defendant to properly remedy that defect.

60.  This would further support the plaintiff’s evidence that the defendant, when such defect was made known to him by the plaintiff, merely reacted in the way the plaintiff had described, i.e. by instructing the plaintiff to use his finger to manually move the latch across the ring after removing the broken spring.

61.  Once again, in the absence of any evidence from the defendant, there is no evidence to rebut the plaintiff’s evidence in this respect.  Accordingly, I am left with only the plaintiff’s evidence which I accept.

Did the accident happen in the way described by the plaintiff

62.  Again, the only evidence relating to this aspect of the case came from the plaintiff.

63.  As to how the accident happened, the plaintiff had been also consistent both in his declaration to the Labour Department and in his witness statement.

64.  Moreover, it would seem that this aspect of the case has been accepted by the defendant when he signed the Form 2 stating that the plaintiff’s back was hit by the gate of the machine.

65.  However, Mr Sakhrani had submitted that from all the evidence, I should find that the accident occurred because the plaintiff had failed to close the middle gate of the machine when the accident occurred.

66.  In this respect, Mr Sakhrani had elicited from his witness, Ng Siu Keung in re-examination that if the waste material did not exceed the height of the lower gate, then the middle gate would be left open when the machine was operated and that was also how the plaintiff operated the machine.

67.  This piece of evidence took Mr Ramanathan somewhat by surprise as it was never put to the plaintiff when he was in the witness box.

68.  Mr Sakhrani defended the position by submitting that it was the procedure as stated by the plaintiff in his declaration to the Labour Department.

69.  What the plaintiff said in his declaration to the Labour Department was as follows:

“In my normal practice, when I pressed the aluminium sheets at or below the height of the bottom gate, I kept the middle gate opened.  Since when the middle gate was closed as well, the middle gate plus the bottom gate the height would be up to my chest.  Then it would be easier for me to keep the middle gate opened for loading the sheets into the baling press machine.”

70.  With respect to Mr Sakhrani, I read those words to mean when the plaintiff was loading the machine, and not when he operated the machine that the middle gate would still be kept open.

71.  That the middle gate was closed when the accident happened was made abundantly clear by the plaintiff in his declaration when he said:

“At about 10.25 a.m. I was picking up the aluminium sheets with my back facing the baling press machine and the middle gate was closed.  Suddenly I could hear a bang sound and something hit my back spontaneously and I felt unconscious.”

72.  I therefore do not accept that there was any kind of admission by the plaintiff that either as a normal practice or at the time when the accident happened that he had kept the middle gate open when the machine was operated due to the fact that the waste material loaded onto the machine did not exceed the height of the lower gate.

73.  No weight can be given to that piece of evidence elicited from Ng Siu Keung in re-examination when that matter had never been put to the plaintiff in cross-examination.

74.  One other piece of evidence which needs to be resolved is the evidence from the plaintiff that when he woke up in the hospital, it was “Kwong Chai” who told him that his back was hit by the gate of the baling machine.

75.  That evidence conflicts with the evidence of Ng Siu Keung who said that he was the only person from the factory with the plaintiff in hospital when the plaintiff awoke, but that he had never said anything to that effect to the plaintiff.

76.  However, it was also Ng Siu Keung’s evidence in cross-examination that when he found the plaintiff after hearing plaintiff’s scream (at the time of the accident), the plaintiff was lying face down on the ground, the machine was operating and the middle gate (called the “upper gate” by Ng Siu Keung) was opened.  Ng Siu Keung further agreed with counsel for the plaintiff that the middle gate should not be opened when the machine was in operation.

77.  The injuries sustained by the plaintiff, primarily on his back, further attest to the fact that the force of the trauma came from behind the plaintiff.

78.  Factually therefore, there can be little or no dispute that in the accident, it was the sudden swinging open of the middle gate of the machine which struck the plaintiff’s back injuring the plaintiff.

79.  As to the plaintiff’s evidence of what he was told by “Kwong Chai” in the hospital, the anomaly of the name “Kwong Chai” may well be due to the plaintiff’s inability with the Cantonese dialect.

80.  Even if the plaintiff’s memory was at fault causing him to think or belief that he had been told by “Kwong Chai” that the gate of the machine had hit him, on the evidence before me, the injury to the plaintiff could not have come about in any other manner other than being hit or struck by the middle gate of the machine.  Moreover the defendant had accepted that the plaintiff was struck by the gate of the machine on his back in the Form 2 signed by the defendant.

81.  Accordingly, I find the accident to have happened in the way described by the plaintiff.

What was the cause of the accident

82.  On the facts as found above, there can be no doubt that the main cause of the accident was the unremedied defect to the locking mechanism of the middle gate of the baling machine.

83.  That, coupled with the force of the compression when the machine was operated would cause a horizontal force to press on the middle gate causing the latch, in the absence of a proper working springlock, to detach from the ring consequently forcing open the middle gate with force.

84.  That would be so even if the plaintiff had followed the instructions of the defendant to manually push the latch across with his finger when locking the gate since the absence of a spring or a broken spring would have the effect of there being lacking a consistent force pushing against the latch to keep it securely in place as against the pressure exerted on the gate and the latch by the machine when in operation.

LIABILITY

85.  According, on the facts as found above, I have no hesitation coming to the conclusion that the defendant is liable to the plaintiff for negligence, being in breach of his duties as an employer to provide proper and safe equipment to the plaintiff in his work.  In this case what was provided to the plaintiff was the baling machine which had a defective locking mechanism which, by reason of such defect, was unsafe in that it was liable (and in fact did) spring open with force due to the pressure exerted by the machine when being operated, and in so doing struck and injured the plaintiff.

86.  On those facts the defendant would also be liable for breach of duties to the plaintiff under the employment contract as well as his other statutory duties pleaded in the Amended Statement of Claim in respect of the accident.

CONTRIBUTORY NEGLIGENCE

87.  The contributory negligence pleaded by the defendant is premised on the fact that the plaintiff had failed to properly shut the middle gate when operating the baling machine.

88.  If by that pleading it is meant to say that the plaintiff did not close the gate of the baling machine when operating the machine, as submitted by Mr Sakhrani, that submission has been rejected by me for the reasons already given above.

89.  On the facts as I have found them, no blame can be attributed to the plaintiff when his complaints to the defendant went unheeded in the sense that no proper steps had been taken by the defendant to remedy the defective locking mechanism so as to conform with his duties towards the plaintiff as an employer providing proper and safe equipment to his employees.

90.  The fact that the plaintiff had to continue with his work even with the realization of the defect in the locking mechanism which made the machine and/or its gate unsafe to his work is not a basis for contributory negligence when it was the defendant who had told the plaintiff to either continue working with the machine despite the plaintiff’s complaints of the defect or to quit his job.

91.  In short the plaintiff was given no choice by the defendant except to continue in his work with the unsafe equipment provided by his employer.

92.  Accordingly, I do not find the plaintiff to have contributed in any way to his own injuries from the accident.

Quantum

93.  I turn now to deal with the issue of quantum.

Injuries and treatment

94.  After the accident, the police and ambulance were notified.

95.  The plaintiff was taken by ambulance to the Emergency Department of United Christian Hospital (“UCH”).  The hospital records showed him to have been admitted to hospital at 11.12 a.m.

96.  The evidence of Ng Siu Keung was that the plaintiff regained consciousness in the Emergency Department of UCH at about 11.30 a.m.

97.  The plaintiff was admitted to UCH and remained there until his discharge from UCH on 25 July 2002, i.e. some 7 days later.

98.  At the UCH, the plaintiff was diagnosed to have tenderness of lower lumbar spine.  X-ray showed spondylolisthesis of L5/S1 but no other bony lesion was found.

99.  After his discharge from UCH, the plaintiff attended regular outpatient physiotherapy.

100.  The plaintiff was re-admitted to the UCH on 7 August 2002 complaining of severe low back pain and left lower limb pain resulting in difficulty walking.  A CT myelogram was performed on 9 August which revealed Grade 1 retrolisthesis at L4/5 level and spondylosis at L5 but with no significant disc prolapse.  He was discharged home on 13 August 2002.

101.  The plaintiff attended outpatient clinics of UCH and also physiotherapy at Princess Margaret Hospital between September 2002 and September 2003.  He walked with an unusual and bizarre gait with his left leg stretched out and his spine tilted to one side with numbness of the left lower leg.

102.  He was assessed by a psychologist at Haven of Hope Hospital who came to the view that the plaintiff was demoralized by the pain and that psychological intervention was required.

103.  An MRI was performed on 21 May 2003 which revealed slight posterior displacement of L4 onto L5 with mild to moderate protrusion of the disc but without compressing the anterior thecal sac.

104.  The plaintiff was offered manipulation under anaesthetic by Dr Lui of UCH on 4 February 2004 to exclude any local organic cause for the back pain and his left leg.  Initially the plaintiff agreed to undergo the procedure but after arrangements had been made for this to be done on 5 March 2004, at the next follow-up on 18 February 2004, it was noted on the hospital record that the “patient refused MUA” without any reasons or detail given.

105.  The plaintiff was referred to South Kwai Chung Psychiatric Centre on 1 April 2004 and diagnosed to be suffering from mild to moderate depressive episode.  It was also noted that his mental problems would not subside until the pain issue was resolved.

106.  At the time of trial, the plaintiff was still attending the outpatient clinic at UCH and the psychiatric outpatient clinic at PMH.

107.  Sick leave was granted to him from 19 July 2002 until 25 November 2004.  The reason why sick leave was granted to the plaintiff for such a long time (over 28 months) was due to the fact that the plaintiff complained of an inability to walk due to loss of power mainly in his left leg.

108.  It is the complaint of the plaintiff which is the major area of dispute between the parties on quantum.  The plaintiff’s experts were of the opinion that the plaintiff suffers from a Conversion Disorder while the experts instructed by the defendant were of the opinion that the plaintiff was malingering.

Evidence of medical experts

(a) Orthopaedic experts

109.  Dr Richard Poon examined the plaintiff on 19 November 2004.  He opined that the plaintiff still had residual lower back symptoms which may be exaggerated but nevertheless genuine.  Dr Poon fairly stated that there were some symptoms that could not be explained orthopaedically.  Dr Poon took the view that there was no need for any further orthopaedic treatment apart from continuing with his back exercise.

110.  Dr Poon opined that the plaintiff would not be able to return to his pre-accident work as the back pain would significantly reduce his working ability particularly heavy manual work, but could take up lighter/sedentary work.

111.  Dr S.Y. Chun, instructed by the defendant, examined the plaintiff on 25 June 2004.  Dr Chun took the view that the spondylosis and spondylolisthesis were probably pre-existing and not caused by the accident.  He was of the further view that there were no objective neurological deficits and there were signs of symptom magnification/exaggeration by the plaintiff.  The MRI studies did not substantiate the plaintiff’s complaints and disability.  He noted the plaintiff’s walking pattern was not only strange but the posture adopted would put greater pressure on the lower back.

112.  Dr Chun further stated that the signs and symptoms of the plaintiff could not be explained in terms of an identified pathology and suggested that the exaggeration by the plaintiff indicated malingering.

113.  He took the view that the plaintiff could return to his pre-accident heavy manual work.

Experts on neurology

114.  The plaintiff was examined by Dr Brian Choa (instructed by the plaintiff) and Dr Edmund Woo (instructed by the defendant) jointly on 30 June 2005.

115.  They noted the bizarre gait adopted by the plaintiff when walking.  They found no muscle wasting in his left leg although the plaintiff complained of total loss of motor control in his left leg.

116.  Dr Choa took the view that there would appear to be no organic basis for the bizarre gait and almost paralysis of the left leg.  The only issue was whether the plaintiff was suffering from conversion reaction/hysteria or whether he was malingering.  The discrepancies between the plaintiff’s account of what happened and what was recorded in the medical notes would seem to suggest the plaintiff was a malingerer.

117.  However, Dr Choa also noted that the plaintiff appeared to be simple minded with limited education and that the hysteria may explain the plaintiff’s perception of paralysis and numbness which do not conform with the hospital notes.

118.  Dr Choa acknowledged that if the plaintiff was malingering, his neurological impairment would be nil, but if he was suffering from conversion reaction, it would be a 15% impairment which may be reduced if successfully treated.

119.  Dr Woo on the other hand opined that the plaintiff suffered a soft tissue injury but the neurological examination reflected grossly unusual features.  The total weakness and sensory loss in the left leg is incompatible with the lack of muscle wasting and defied neurophysiological principles.  This raised questions of genuineness of the complaints.  In his opinion, he did not believe there was any neurological impairment at all.

(c) Psychiatric experts

120.  The plaintiff had initially instructed Dr Lo Chun Wai to be the psychiatric expert, however, on application of the plaintiff, leave was granted to substitute Dr Chen Char Nie as the psychiatric expert for the plaintiff.

121.  Dr K. Singer was the psychiatric expert of the defendant.

122.  Accordingly, only Dr Chen and Dr Singer were called respectively by the parties to give expert evidence in the field of psychiatry.

123.  Dr Singer examined the plaintiff on 21 February 2006 and was of the view that the plaintiff did not appear to be depressed but was evasive, even as to the date of his birth.

124.  When examined, the plaintiff had difficulty even with simple calculations.  Dr Singer came to the conclusion that the plaintiff exaggerated his complaints and did not have any psychiatric related symptoms or disorder.  He doubted the genuineness of the plaintiff’s complaints and opined that the plaintiff did not require any psychiatric treatment but should be able to return to his pre-accident work.

125.  Dr Chen Char Nie examined the plaintiff on three occasions in September and October 2006, and also in May 2007 after the plaintiff had attended hypnotherapy sessions.

126.  Dr Chen opined that the abnormal gait and loss of sensory and motor function was likely due to a conversion disorder and recommended hypnotic therapy to the plaintiff.

127.  In his second report, Dr Chen noted that the plaintiff appeared to be better after receiving hypnotic therapy from Mr Kelvin Tang both in mood and his ability to walk.

128.  Dr Chen was of the view that the plaintiff’s gait disorder and his depressive disorder were caused by his physical complaints and therefore secondary.  His depressive disorder had already been successfully treated by the SKC Psychiatric Centre.  In Dr Chen’s opinion, the remaining gait disorder which was psychogenic was a conversion disorder.

129.  Dr Chen also pointed out that conversion disorder was usually common amongst people in the lower class and less educated and who are generally less knowledgeable about medical and psychological concepts.

130.  He opined that on his first discharged from hospital, the plaintiff believed (rightly or wrongly) that the physiotherapist found that he was unable to move his legs and he considered himself unable to walk.  Despite that he was being discharged although he had wanted to stay in hospital longer.  This caused emotional conflicts in the plaintiff whereby he considered the medical team did not share or understand the extent of his pain and disability.  In turn it triggered the plaintiff to adopt for himself a sick role model because he felt he was being unfairly treated by the hospital staff.

131.  Dr Chen suggested hypnosis treatment, alternatively for the plaintiff to be seen by a clinical psychologist.  He opined that the plaintiff would not be able to return to his pre-accident work but could take up lighter work and that the future prognosis would depend on the success or otherwise of the hypnotherapy.

Hypnotherapy treatment

132.  Mr Kelvin Tang saw the plaintiff for about 9 times between January and November 2007, and a further three consultations also in May, July and October 2008.

133.  There has been some considerable change by way of improvement to the gait and posture of the plaintiff after seeing Mr Tang when compared to the 5 years or so after the accident but before consulting Mr Tang.

134.  Both the plaintiff and also Dr Chen took the view that a further six sessions of treatment with Mr Tang will be of further help in his rehabilitation and recovery.

Findings on the medical evidence

135.  Admittedly there are inconsistencies and discrepancies in the plaintiff’s evidence when looked at against the medical records.

136.  The defendant’s experts have been quick to jump on these to support their case of malingering, while on the other hand, the plaintiff’s experts defend that by saying those inconsistencies or discrepancies may yet be the product of his conversion disorder.

137.  One of the matters relied on by Dr Singer in his report to say that the plaintiff was malingering was the fact that when examined by Dr Singer, the plaintiff was unable to give his date of birth apart from the year.  Dr Singer had seized on this as yet another of the plaintiff feigning his mental disability until it was pointed out by counsel for the plaintiff that even on the plaintiff’s Hong Kong identity card, the date of birth of the plaintiff only gives the year of his birth with no date or month given.

138.  Much has also been said by the defendant as to how unreliable the evidence of the plaintiff was when he said he could not walk and had to be carried by friends when he was discharged from the hospital when that evidence was looked at against the discharge summary which stated that the plaintiff could walk unassisted.  Nothing in the doctor’s records or report even remotely mentioned that the plaintiff had complained of numbness in his leg, yet in the nurses’ record during his first stay in hospital, it was recorded that for most of his 7 days in the hospital he had complained of numbness in his legs.

139.  In coming to a determination on the issue whether the plaintiff was malingering or whether he did in fact have conversion disorder, two matters stand out well above all the other factors which I feel I can confidently rely on to resolve that issue.

140.  Firstly, when the plaintiff was examined by Dr Choa in the joint examination with Dr Woo, Dr Choa, no doubt realizing what was in contention between the experts on both sides, took the liberty to perform two tests on the plaintiff to assess whether his symptoms were genuine.  When the plaintiff was distracted, Dr Choa used a pin to prod his left leg but there was no response from the plaintiff showing that he was genuinely unaware of the prod.  When this was done to the plaintiff’s right leg, it drew a reaction from the plaintiff by immediately withdrawing his right leg.  The second test came about when the left knee of the plaintiff was rigidly extended, Dr Choa did not detect any palpable tension in his quadriceps muscles, which suggested that the plaintiff may genuinely have inability to activate the hamstring muscles in order to bend the left knee.

141.  It was after conducting these two tests that Dr Choa suggested that the plaintiff may respond to hypnosis as an alternative mode of treatment to deal with the possible hysterical reaction in the aftermath of the accident.

142.  Not only do I accept what was said by Dr Choa concerning the above two tests carried out by him as an objective means to assess the genuineness of the plaintiff’s complaints and symptoms.  It should also be noted that although these two tests were performed by Dr Choa during the joint examination with Dr Woo, Dr Woo makes no comment on the implication or significance of the two tests carried out by Dr Choa.

143.  The second matter which I take into consideration in deciding this issue is the fact that after undergoing hypnotherapy with Mr Kelvin Tang for the most part of 2007, the plaintiff has improved significantly.  His abnormal gait became less abnormal in that the angle of tilt when walking was reduced markedly.

144.  This however did not stop Dr Singer from questioning whether it was in face improvement because of the hypnotherapy given to the plaintiff or whether it was due to the plaintiff’s own ulterior motive to suddenly want to improve, the implication being that the plaintiff was feigning all the time previously to his improving.

145.  When confronted by counsel for the plaintiff with DSM-IV V-65.2 in cross-examination where it was stated:

“In Malingering (in contrast with Conversion Disorder), symptom relief is not often obtained by suggestion or hypnosis.”

Dr Singer could only answer by being dismissive of those words stated in DSM-IV as being “mere generalisation”.

146.  In all the circumstances of this case, it is not without some difficulty that I have reach the conclusion that, bizarre though it may be, the plaintiff was genuinely suffering from Conversion Disorder and was not malingering.

Pain, suffering and loss of amenities

147.  Based on the findings above, it follows that since about the time of the accident in July 2002, the plaintiff had to endure the discomfort of the bizarre gait and posture and also the low back pain even though that could not be explained orthopaedically.

148.  Moreover, he had also to endure the psychological distress and the depression attendant with his incapacity.

149.  It was only in the early part of 2008 after treatment by Mr Kelvin Tang that the plaintiff could derive some relief from those disability.

150.  Even accepting that the spondylosis and the spondylolisthesis to his spine were pre-existing and not related to the accident, and that it was only the Conversion Disorder and depression which resulted from the accident, the award for PSLA ought to take cognizance of the lengthy discomfort of the bizarre gait and posture of the plaintiff and also his depression.

151.  I would therefore assess the PSLA award in all the circumstances of this case to be $450,000.

Pre-trial loss of earnings

152.  There can be little doubt that the basis salary of the plaintiff before the accident was $13,000 per month.

153.  This was not only the plaintiff’s evidence.  That figure was also used by the defendant when he amended the Form 2 to $13,000 as being the plaintiff’s salary when the initial figure of $12,000 was challenged by the plaintiff.  $13,000 was also used as the basis for calculating the periodic payment paid to the plaintiff during his sick leave.

154.  I therefore find that the basic salary of the plaintiff before the accident to be $13,000 per month.  Adding to that the overtime salary which the plaintiff would be able to earn, it would be reasonable to assess his monthly pre-accident earnings to $14,500 per month.

155.  The plaintiff was on sick leave up to November 2004.  He would accordingly be entitled to full loss of earnings during the entire sick leave period.

156.  Given that he did not receive any form of hypnotherapy treatment until he consulted Mr Kelvin Tang starting February 2007, it is hardly surprising therefore that he could not take up any employment due to his Conversion Disorder until the early part of 2008.

157.  In the circumstances, the plaintiff ought also to be compensated for full loss of earnings until he secured his alternative employment in early 2008.

158.  Thereafter he will only be awarded partial loss of earnings since he was earning on average $4,800 per month from January 2008.

159.  The loss of pre-trial earnings are calculated as follows:

160.  For the 65.5 months from accident until end of December 2007 $14,500 x 65.5 giving $949.750.

161.  From January 2008 onwards ($14,500–$4,800) x 17 months giving $164,900.

162.  Adding 5% for loss of MPF will give totally ($949,750 + $164,900) x 1.05 = $1,170,382.50.

Future loss of earnings

163.  It is readily acknowledged by the plaintiff as contained in counsel’s final submission that there will be future improvement in the plaintiff now that he is receiving hypnotherapy for his impairment.

164.  Mr Ramanathan therefore suggest a multiplicand of $6,500 be used to calculate loss of future earnings.

165.  However, Mr Ramanathan goes on to suggest the adopting of a multiplier of 15 as being reasonable.

166.  While I accept the suggested multiplicand, I do not think that the present case is one in which I should adopt a multiplier of 15.

167.  The reason is that now that the plaintiff is on the right track to rehabilitation by receiving hypnotherapy from Mr Kelvin Tang, and which in the short space of about a year has already produced significant and remarkable results in so far as his bizarre gait and posture is concerned, I cannot imagine that the disability of the plaintiff (which is no orthopaedic in origin, but rather psychogenic) can, by any stretch of the imagination, continue for such length of time as would warrant a multiplier of 15.  Given the age of the plaintiff, such a multiplier would effectively be used to redress what would only be a permanent disability.  That is not the case here.

168.  The defendant, on the other hand, suggest that future loss of earnings (on the basis that I do find the plaintiff to be suffering from Conversion Disorder) should only be awarded for another 12 months by which time the plaintiff should be able to return to his pre-accident work.

169.  It is unfortunate but there is no evidence before me how long it will take (even an estimate) for the plaintiff to fully recover from his impairment.

170.  Given the time that he has had the Conversion Disorder an given that what has already been achieved by Mr Kelvin Tang in rehabilitating the plaintiff has taken well over a year, I do not feel comfortable with the suggestion by the defendant that the plaintiff should be completely cured within another 12 months.  That is overly optimistic and wholly unreal.

171.  Doing the best I can in the circumstances, I believe that a multiplier of 3 years would be fair.  Taking into account the accelerated receipt by the plaintiff of the damages assessed, a multiplier of 3 will allow for a sufficient time for the plaintiff to recover from his disability now that the root cause of it has been identified.

172.  I therefore assess loss of future earnings (including loss of MPF) to be $6,500 x 36 x 105% giving $245,700.

Loss of earnings capacity

173.  Loss of earnings capacity is claimed by the plaintiff in the sum of $171,000.

174.  However, since I have taken the view that the plaintiff’s disability will have dissipated three years after judgment in this case, in order to be consistent, it must also follow that whatever loss of earnings capacity will only relate to the three years following judgment.

175.  In the circumstances, I take the view that $30,000 will be sufficient compensation to the plaintiff for loss of earnings capacity.

Special damages

176.  Special damages, which comprised mainly of medical expenses and travelling expenses to and from medical consultations have been claimed in the sum of $23,990.

177.  Considering that such expenses have been incurred by the plaintiff throughout the 7 years from the accident, the amount claimed is well within reasonable limits and will be allowed in its entirety.

Interest

178.  Interest on general damages for PSLA will be awarded at 2% p.a. from the date of the Writ.

179.  Interest on pre-trial loss of earnings and special damages will be awarded at half judgment rate from the date of the accident.

Deduction

180.  The following sums will need to be deducted from the damages assessed, namely:

(a)  $238,734 being periodical payment already received by the plaintiff;

(b) $5,222 being reimbursement of medical receipts; and

(c) $30,000 being interim payment already paid to the plaintiff.

Totally the above amounts come to $273,956.

Summary

181. 

PSLA	$450,000.00
Loss of pre-trial earnings and MPF	1,170,382.50
Loss of future earnings and MPF	245,700.00
Loss of earnings capacity	30,000.00
Special damages	23,990.00
Interest on PSLA	40,500.00
Interest on pre-trial loss and specials	326,462.00
	$2,287,034.50
Deductions	273,956.00
Total	$2,013,078.50

Conclusion

182.  There will accordingly be judgment to the plaintiff for the sum of $2,013,078.50.

Cost

183.  There will be a cost order nisi that the defendant pays to the plaintiff the plaintiff’s cost of this action to be taxed if not agreed.