KHALID, ALI v. MEGASTRENGTH SECURITY SERVICES COMPANY LTD

DCPI 2268/2020

[2023] HKDC 1549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2268 OF 2020

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  This is a personal injury claim arising from an accident allegedly happened to the plaintiff (“P”) when he was unloading a heavy suitcase of a taxi passenger from the boot during work at about 10 am on 14 November 2019 (“the Alleged Accident”).

2.  About one month before the Alleged Accident on 4 October 2019, P was employed by Defendant (“D”) as a security guard, and since then he was posted at the pedestrian entrance of Three Garden Road, Central, Hong Kong. P’s duties included traffic control, helping passengers alighting from vehicles and unloading their personal belongings from the boot.

3.  According to P, the Alleged Accident happened after P had lifted a heavy suitcase of a taxi passenger from the boot and placed it on the ground, he then felt severe pain in his right lower limb.

4.  P attended the Accident & Emergency Department (“A&E”) of Queen Mary Hospital (“QMH”) in the afternoon of the Alleged Accident and transferred to the Department of Orthopaedic & Traumatology (“O&T”) of QMH the same day.

5.  On 20 November 2019, P attended the A&E and O&T departments of Tuen Mun Hospital (“TMH”).

6.  Besides, P attended 7 physiotherapy sessions at the Physiotherapy Department (“PD”) of TMH from 27 November 2019 to 27 March 2020.

7.  A total of 432 days of sick leave were granted to P by various treating doctors from 14 November 2019 to 6 September 2019.

8.  P’s claim against his employer the defendant (“D”) is based on the following causes of action:-

(a) negligence;

(b) breach of common duty of care of an occupier;

(c) breach of statutory duty[1]; and

(d) breach of implied terms of the contract of employment.

9.  At the time of the Alleged Accident, P was aged 46. The total claim amount according to the Revised Statement of Damages filed on 25 November 2021 was HK$1,281,399.50 with the following breakdown:-

Heads of Claim	Amount (HK$)
(a) PSLA	150,000.00
(b) Pre-trial Loss of Earnings	366,800.00
(c) Pre-trial Loss of MPF	18,340.00
(d) Future Loss of Earnings	657,390.00
(e) Post-trial Loss of MPF	32,869.50
(f) Loss of Earning Capacity	5,000.00
(g) Special Damages (already incurred)	6,000.00

10.  Since the commencement of action, P was all along represented by John M Pickavant & Co until after the leave to set the case down for trial was granted and P’s then solicitors ceased to act for P on 5 October 2022. Thus P attended the trial in person.

11.  Parties dispute both issues of liability and quantum. P himself gave evidence in court without calling any other witnesses, while three employees of D testified in court. The joint medical expert report compiled by parties’ respective orthopaedic experts was adduced as evidence without calling the makers.

ISSUES

12.  D puts P to strict proof of both liability and quantum issues of the claim. In particular, D fiercely contested the happening of the Alleged Accident and averred that it did not happen to P at all. The issues framed by Mr Wong, counsel for D are as follows:-

(1) Whether the Alleged Accident happened in the manner as alleged by P or at all;

(2) If the Alleged Accident did happen to P, whether D was liable for it;

(3) If D was liable for the Alleged Accident, whether P was contributorily negligent and if so to what extent; and

(4) The quantum issue if liability is established.

LIABILITY

The Alleged Accident

13.  According to P’s viva voce evidence, immediately after the Alleged Accident P first told his colleague Mr Ali that he was in severe pain, but P did not mention to Mr Ali about the Alleged Accident.

14.  P clarified in court that his statement was incorrect with regard to his report to Mr Ali of the happening of the Alleged Accident. Mr Ali only told P to go to the office to find his superior, Ms Wu[2], ie the first witness of D.

15.  P then went to the office to look for Ms Wu but in vain. P met another colleague Mr Lok instead and told Mr Lok that he was in pain. Again P did not tell Mr Lok about the Alleged Accident but just that he was in pain.

16.  About 15 to 20 minutes later, Ms Wu came to the office and P told her about his pain only without mentioning the Alleged Accident and requested for hospital treatment.

17.  P retracted the allegation as stated in the last sentence of paragraph 18 of his own statement:-

“I requested that I be taken to the hospital but she then gave me a form to fill in about the Accident before she could arrange for a medical checkup (“the Incident Report”).”

18.  P testified that Ms Wu did not give him the Incident Report on the day of the Alleged Accident but on the day after, when she was visiting him at QMH.

19.  P confirmed that Ms Wu did not make P completing the Incident Report before any medical treatment to be arranged for him.

20.  P further stated that such allegation was made up by Muhammad Nawaz, the Urdu interpreter of his then solicitors.

21.  In short, P spoke to 3 colleagues shortly after the Alleged Accident: namely Mr Ali, Mr Lok and Ms Wu. P said repeatedly to them that he was in pain but he did not mention the happening of the Alleged Accident to any of them. When cross-examined on the reason why he did not mention the Alleged Accident, P gave the same answer — because he was not asked so he did not tell.

D’s Stance On the Alleged Accident

22.  D submitted that the Alleged Accident is just P’s bare assertion. P’s case is not only lacking contemporaneous evidence in support of the Alleged Accident, but also contradicted by unchallenged evidence. It is D’s case that the Alleged Accident has never happened to P at all. D contested this issue as follows:-

(a) No report of the Alleged Accident to D —

(i) It is unreasonable for P to tell the said 3 colleagues shortly after the Alleged Accident that he was in pain only without telling them the Alleged Accident happened to him causing his pain.

(ii) According to the evidence of Ms Chan[3], when she visited P on 15 November 2019 at QMH, she gave P the Incident Report form to fill in. P again did not report the happening of the Alleged Accident but wrote down the sudden pain in his leg at about 10 am on 14 November 2019. P even put down the pain was possibly a “saiticka” (sciatica).

(b) No records of the Alleged Accident and P’s denial of injury in the medical notes —

(i) According to medical notes of the A&E doctor of QMH, ie the first treating doctor of P after the Alleged Accident, there was no injury and P’s case was classified as “non-traumatic”.

(ii) The following observation by the O&T doctor of QMH was recorded in the Admission Note in the afternoon of the day of the Alleged Accident: “Sudden onset of entire RLL (Right Lower Limb) weakness and severe pain this morning” and “No trauma”

(iii) According to the medical notes of another treating doctor made at about 7 am on the following day (15 November 2019), “no injury” was recorded.

(iv) When P attended the A&E of TMH on 20 November 2019, the treating doctor recorded the following in the medical notes: “injury⁰” (meaning no injury) and the case was classified as “non-traumatic” again.

(v) When P was admitted to O&T of TMH, the following observation by the O&T doctor was recorded in the Admission Note in the afternoon of 20 November 2019: “Not related to posture change” and “Denied injury/trauma/fall”.

(vi) P’s explanation of his repeated denial of injury was due to his misunderstanding of the meaning of “injury”. He claimed that his understanding of the word “injury” refers to “open wounds” or “bleeding” only. In light of P’s two previous work related injury experiences, D’s counsel criticized such explanation as “unbelievable”. In any event, there is nothing to prevent P to tell his doctors how the Alleged Accident happened, causing his pain, which a patient would normally do.

(c) Denial of the happening of the Alleged Accident by P —

When Ms Wu came to see P after learning that P was not feeling well, P told Ms Wu that he was not sure about the cause of his sudden pain at his feet and waist but he denied having injured while working[4].

(d) Notification of Accident to the Labour Department[5]—

(i) P gave an inconsistent account of how the accident happened. When he was asked to “Describe how the accident happened, nature of injury and state what the employee was doing at the time”, the answer was: “Due to prolong standing, I felt pain in my right limb and feet numbness”.

(ii) P gave inconsistent evidence as to who completed the notification form. He once said he himself filled in the form, but when he was cross-examined about the cause of injury being “due to prolong standing”, he then said the form was completed by Mr Muhammad.

(iii) D’s counsel commented that there was no reason for Mr Muhammad to put down prolonged standing as the cause of the injury, as P had told Muhammad the cause being lifting the heavy luggage. Besides, P has signed the form.

(e) Rebuttal evidence—

(i) According to the witness statement[6] of Ms Wu which she had adopted as her evidence-in-chief, she had been viewing the CCTV clip capturing how P was working on the day in question from 8 to 10 am.

(ii) Ms Wu did not see P lifting any luggage in the footage.

(iii) Although the CCTV footage was lost and thus not produced, D did not cross-examine Ms Wu in this regard.

Whether the Alleged Accident Did Happen to P

23.  It is undeniable that the happening of P’s Alleged Accident is no more than bare assertion by P which is contradicted by the evidence summarised as follows:-

(a) P told his colleagues sudden pain without revealing his lifting the luggage as the cause;

(b) P told Ms Wu that he was not injured during work;

(c) P failed to give an account of how the accident happened in the Incident Report but suggested his pain was possibly a “saiticka” (sciatica);

(d) Ms Wu did not see P lifting any luggage in the CCTV footage;

(e) Medical notes are against P’s claim;

(f) Prolonged standing was stated in the Notification of Accident to the Labour Department as the cause of the accident.

24.  I agree with Mr Wong that P’s explanations of his multiple failures to give an account of the Alleged Accident in various occasions are all unbelievable.

25.  In particular, I do not accept his claim of misunderstanding of the word “injury”. It is totally inconceivable that he has never mentioned to any colleagues or doctors as to how the accident happened, if it did happen to him.

26.  Besides, P is unable to explain his own denial of injury during work and the contradictory evidence like the Incident Report and the Notification of Accident to the Labour Department.

27.  I also disbelieve P’s blame on Muhammad filling the Notification of Accident to the Labour Department for him, as P has confirmed he filled the form by himself in the first place.

28.  In view of the overwhelming contradictory evidence against the P’s case, I find that the Alleged Accident did not happen to P at all. It was only a fabricated allegation.

29.  Notwithstanding that P’s claim could be dismissed at this juncture with costs to D, I am going to consider the following issues if I were wrong in the above findings and for the sake of completeness

Any Breach of Duty

30.  If the above findings were wrong and if the accident did happen to P as alleged, the next question is whether D was in breach of employer’s duty to take reasonable care of its employee, P.

31.  There is no quarrel that unloading luggage from a taxi is a simple manual task. It is always a question of fact as to whether it is necessary to prescribe a system of work in any given circumstances[7]. In view of such simple task in the present case, it is doubtful whether D is required to prescribe a system of work for unloading luggage from taxis.

32.  In any event, D has provided P a copy of Employee’s Guide to Manual Handling Operation published by the Labour Department and memoranda about manual handling operation when P joined D. P does not dispute receiving the abovementioned documents either.

33.  Therefore, I agree that D has discharged its employer’s duties of care to P and there is no breach of duty on D’s part.

Contributory Negligence

34.  If I were wrong in the above finding and if D should be liable for breach of duty, P should be contributorily negligent, as P has failed to have reasonable regard to his own safety when he undertook to lift an extraordinarily heavy luggage without seeking assistance from his colleagues. I would follow the case cited by D: Bin Yamin v Chuen Ho Construction & Engineering Co & Anor[8] to find P’s contributory negligence at 40%.

QUANTUM

Injuries and Disabilities

35.  P pleaded in his Revised Statement of Damages filed on 25 November 2021 that P was still suffering from the following:-

(a) residual intermittent right lower limb pain and numbness exacerbated by prolonged walking, stair climbing and cold weather; and

(b) reduced walking and standing tolerance.

36.  D’s main challenges of P’s injuries in respect of quantum issue are summarised by Mr Wong as follows[9]:-

“(1) The Accident, even if happened as alleged, caused only very minor initial injuries to P. His right lower limb complaints could not be explained by the MRI findings, or other known pathology.

(2) Even if P suffered some right lower limb symptoms as a result of the Accident, the present complaints are largely subjective in nature and not supported by any objective evidence.

(3) Due to symptom exaggeration on his part, it becomes very difficult for the Court to ascertain his actual impairment. Even taking P’s case to the highest, any residual disability should only be very mild and pose no real hindrance to his functional performance.”

Orthopaedic Expert Evidence

37.  On 25 June 2021, P attended a joint medical examination by orthopaedic experts of both parties, namely Dr Johnson Lam appointed by P and Dr Lam Kwong Chin appointed by D and the experts compiled a joint orthopaedic expert report dated 11 October 2021.

38.  The experts have different opinion regarding the onset of P’s pain on the day of the Alleged Accident. P’s expert is of the view that P possibly suffered from some low back injury, aggravated by his pre-existing back degeneration causing back pain with radiation down to the right buttock and lower limb.

39.  Whereas D’s expert thinks that the onset of P’s pain was caused by muscle strain or spontaneous pain due to natural progress of a pre-existing pathology.

40.  Although the experts have different views in the cause, all the medical evidence before the court suggest that the pathology only confined to the left side of P, and no medical evidence could explain P’s alleged right lower limb symptoms.

41.  P’s expert is unable to explain why “referred back pain” as suggested by him only caused P’s alleged right buttock pain but not causing any back pain.

42.  Besides, D’s expert queried “referred back pain” being not supported by any MRI findings or any known pathology.

43.  Another issue which the experts have different opinions is about P’s pre-existing conditions. P’s expert is of the view that the degenerative changes in P’s low back/spine are asymptomatic in nature and the Alleged Accident caused significant soft tissue injury to P’s low back. But for the Alleged Accident, even if P eventually develops symptoms in the right lower limb, such symptoms are likely to be milder and more occasional. P’s pre-existing degenerative conditions are thus considered to fall between category (1) and (2). Thus, P’s expert apportioned 20% of P’s present disabilities to his pre-existing conditions[10].

44.  D’s expert is of the opinion that P’s complaints of his lower limb are largely caused by the pre-existing degenerative spine problem. Even if P had not encountered any accident or trauma, his spine would continue to deteriorate.

45.  Therefore, D’s expert concluded that P’s pre-existing spinal condition falls under category (2), ie there is a strong possibility that some other event or natural progression of the condition would have brought about the present condition. In conclusion, 50% of P’s present disability is apportioned to his pre-existing condition by D’s expert.

46.  P has not made any submissions regarding the above differences in opinion of the experts. Mr Wong submitted that D’s expert evidence should be preferred for the following 3 reasons:-

(1) P has a long history of working as a general worker in the construction sites for 20 years before he switched his job to become a security guard in 2019. Such previous occupation involved strenuous duties such as lifting heavy objects weighing up to 40-50 kg which would result in natural progression of P’s degenerative spine.

(2) The asymptomatic degenerative spine would tend to have recurrent exacerbation of back pain as P growing in age. D therefore suggests that P’s back is likely in a rather vulnerable state before the Alleged Accident.

(3) P’s previous back injury in 2001 leading to a whole year of sick leave suggests further degeneration and deterioration in his back has already developed then.

47.  Having considered the above submissions on pre-existing conditions of P and in the absence of any counter submissions from P, I find D’s submissions reasonable. Therefore, I prefer D’s expert’s apportionment of 50% and agree with D’s counsel proposed discount of 50% on the award of PSLA pursuant to Yu Wai Kan v Law Cho Tai[11].

48.  Despite the above differences in opinion, both experts do agree that P has exaggerated his conditions. D’s expert stated in the joint medical report that:-

“it is natural and expected course of almost any injury to improve with the passage of time. The diffuseness, chronicity and intensity of the present right lower complaint are out of proportion to a back/limb injury without substantial structural damage sustained 1½ year ago[12].”

49.  Besides, after viewing the surveillance recordings of P, D’s expert found that P was “far better than what he presented to the attending doctors during consultations or at this assessment” and he thus concluded that P was obviously exaggerating[13].

50.  P’s expert also agreed that the physical findings of P were inconsistent with the genuine neurological deficit in the right lower limb lacking any objective neurological problem or objective sign.

51.  P’s expert further admitted that P has exhibited some positive some positive “inappropriate signs/Waddell’s Tests”, which suggests exaggeration on the part of P. Having viewed the surveillance footages of P and considered all the evidence as a whole, P’s expert said as follows:-

“it is likely that Mr. Khalid had satisfactory improvement with various treatments; however, considering the overall evidences, there was likely some residue pain/impairment contributed by subject accident aggravating the back degeneration and triggering symptoms – the residue pain/impairment contributed by the subject accident is estimated to be mild[14].”

Pain, Suffering & Loss of Amenity (“PSLA”)

52.  Mr Wong for D cited the following 6 cases on PSLA for comparison:-

(a) Yuen Ka Ho v Wong Chin Man[15];

(b) Liu Kin Pong v Kee Wah Food Production Ltd[16];

(c) Lo Yin Fong v Maxim’s Caterers Limited[17];

(d) Yip Kwok Shing v Fung Chau Tim[18];

(e) Lai Ka Yin v Chan Yiu Kei[19]; and

(f) Tam Yuen Hoi v Chan Muk Sing & Ors[20].

53.  Having considered the above cases, I found Yip Kwok Shing v Fung Chau Tim is the most comparable case. The plaintiff Yip Kwok Shing was suffering from redness and tenderness over his lower back region caused by the defendant’s assault without bone fracture. Yip was discharged and prescribed with analgesics. $60,000 was awarded for PSLA by HH Judge Andrew Li.

54.  I am satisfied that had D been found liable, the award of PSLA should be around $60,000. In view of my adoption of D’s expert opinion on pre-existing condition, there should be a 50% discount, resulting in an award of $30,000 under this head.

Loss of Pre-trial Earnings

55.  There is no dispute as to P’s monthly income being $18,250 at the time of the Alleged Accident. Medical experts, however, have divergent views as to the appropriate sick leave period.

56.  P’s expert endorsed all sick leave certificates issued by treating doctors and considered the entire sick leave period as appropriate, ie from 14 November 2019 to 6 September 2021 intermittently for a total of 432 days.

57.  Whereas, D’s expert was of the view that the sick leave period had been unduly prolonged. He considered that 3-month sick leave should be adequate for P to resume to work for a back/lower limb sprain with soft tissue involvement.

58.  Suffice to say that I agree with defendant’s Opening Submissions at paragraphs 76(1)-(5) that the opinion of D’s expert should be preferred in light of P’s minor injury and therefore the appropriate sick leave period should not be more than 3 months.

59.  Loss of pre-trial earnings should be calculated on the basis of the 3-month sick leave period from 14 November 2019 to 13 February 2020 as follows:

$18,250 × 3 months × 1.05 MPF = $57,487.50

60.  As both medical experts agreed that P should be able to return to his pre-accident work, P should not be suffering from any further loss of pre-trial or post-trial earnings.

Loss of Earning Capacity

61.  As P’s injury was minor and any residual problems would also be very mild, it is unlikely to constitute any significant impairment to his work capacity. Therefore, there is no real or substantial risk of loss of P’s employment or suffering from financial loss because of his disadvantage in the labour market at some future date during his working life[21].

62.  As such, I agree with D’s submission that no damages should be awarded under this head.

Special Damages

63.  P is claiming special damages consisting of $4,000 medical expenses and $1,000 travelling expenses totalling $5,000. According to the Answer to Revised Statement of Damages, D is prepared to allow $2,500 medical expenses and $500 travelling expenses “subject to documentary proof”.

64.  However, P could only produce a medical receipt of $370. D has drawn to my attention that P, who has been a CSSA recipient since the Alleged Accident, was waived from medical fees in public hospitals and clinics. Therefore, only $370 medical expenses should be allowed.

65.  As D has failed to produce any documentary proof for travelling expenses, only $500 agreed by D should be allowed. After adding the $370 medical expenses supported by receipt, the total sum under this head is $870.

Calculation on Quantum of Damages (if any)

66.  To conclude, the amount of damages (if any) should be calculated as follows:-

	Head of Claims	Amount (HK$)
(1)	PSLA	30,000.00
(2)	Loss of Pre-trial Earnings & MPF	57,487.50
(3)	Future Loss of Earnings	0.00
(4)	Loss of earning Capacity	0.00
(5)	Special Damages	870.00
		_________
	Sub-total:	88,357.50
	Less: Contributory Negligence	(88,357.50 × 40%)
		_________
	Total:	53,014.50

67.  Since the advance payment of HK$108,526.66 is greater than the above total damages of HK$53,014.50, P has been over-compensated even if the liability of D could be established. Thus, P would not be entitled to any award of damages in any event. P’s claim would be dismissed either because of no further loss upon receiving the advance payment.

CONCLUSION

68.  In view of the aforesaid reasons and findings in paragraphs 22 to 28 and 67 above, I dismiss P’s claim in this action.

COSTS

69.  As costs shall follow the event, D shall pay P’s costs of the action. Besides, D is seeking indemnity costs against P for abusing the court process by making a dishonest false claim. Mr Wong has cited the following authorities in support of his submission on indemnity costs order:-

(a) South Wales Fires and Rescue Service v Smith[22];

(b) Summers v Fairclough Homes Ltd[23];

(c) Li Ming Tak v Hong Kong Airport Services Limited[24];

(d) Yeung Ho Man v Shum Kin Leung & Anor[25];

(e) Thapa Hari Bahadur v Paramount Engineering & Manpower & Anor[26]; and

(f) Mak, Rachel Wing Nam v Ching Kai Chung[27];

(g) So Kam (蘇金) v Guideford Ltd & Anor[28].

70.  Having considered the above authorities and all the circumstances, I agree with Mr Wong that it is an appropriate case to impose indemnity costs order against P.

71.  I therefore make an order nisi that P shall pay D’s costs of this action, to be taxed on indemnity basis if not agreed, with certificate for counsel and such order nisi shall become absolute after 14 days from the date hereof, unless parties make any applications to vary it within such time.

72.  Lastly, I thank Mr Wong for his helpful assistance rendered to this court.