HO MOH v. TAM YIU KEUNG t/a YIU SUN CONSTRUCTION ENGINEERING CO. AND ANOTHER

HCPI NO. 1251 OF 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1251 OF 1998

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JUDGMENT ON ASSESSMENT OF DAMAGES

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Introduction

1. This application for assessment of damages is pursuant to the order made by Master Chan on 1 December 1999, which provided, inter alia, that interlocutory Judgment be entered for the Plaintiff against the Defendant with damages to be assessed.

2. The plaintiff, aged 47 at the time of the hearing, was an employee of the 1st defendant who was the sub-contractor of the 2nd defendant. The plaintiff was employed as a caisson worker in a construction site in Fanling. On 23rd April 1996, about 2 days after his employment with the 1st defendant, the plaintiff was injured in an accident when he was working in a caisson at the site. The accident took place when the plaintiff was bending half-way down, working. He was hit by a wooden beam of 4" x 4" and about 6 to 7 metres, weighing between 160 to 170 pounds. The wooden beam was being lifted by other workers and it suddenly got of their grip and fell onto the upper left back and the helmet the plaintiff was wearing. Nobody knows the angle of the impact or how it came to hit the plaintiff. The plaintiff lost consciousness for about 15 minutes. Then he came round. He was taken by the 1st defendant to Fanling Hospital, from which he was transferred to Prince of Wales Hospital (PWH) where he had received medical treatment. There were 3 medical reports from PHW. They are produced by the plaintiff and are respectively marked Exhibit P4, P5 and P6.

3. The plaintiff had filed a writ to claim against the defendants for common law damages on 4 December 1998. An interlocutory judgment was made and hence this hearing for assessment of damages.

Plaintiff's Injuries and Treatment

4. According to the medical reports of PWH produced by the plaintiff, Doctor Law attended the plaintiff immediately after the accident. In his report dated 26 November 1997(Exh. P4), he reported:

(1) The general condition was good.

(2) The patient complained of head injury by falling object.

(3) No wound was noted on the head but a 10x4 cm across abrasion was noted on the left side of the back.

(4) X-ray of the chest and skull were done and revealed no bony injury.

(5) The mode of injury was compatible with blunt trauma.

(6) No permanent disability was expected.

5. Dr. Tse reported in his report dated 13 January 1998 (Exh. P6) that the plaintiff sustained a back injury in April 1996, being hit by a wooden block over the thoracic spine. There was external scarring over the back but no lower limb neurological deficit. He was treated conservatively with NSAIDS and physiotherapy and straight leg raising was positive both sides till his latest follow up at October 1997. MRI was booked and he would be re-assessed again.

6. Senior physiotherapist Wendy Wong has also compiled a medical report dated 4 December 1997 (Exh.P5) on the plaintiff. In it, she reported that the plaintiff was admitted for treatment on 19 November 1996. In the initial treatment given on 9 December 1996, he had severe back pain and left leg numbness which aggravated by minimal degree of trunk movement. He could not sit for more than 10 minutes, stand for 5 minutes and he squatted with much difficulty.

7. After 15 sessions of treatment, he had marked improvement in his condition. He found 70% relief of pain. Trunk movement was improved to end range with minimal residual pain. Squatting was full and painfree. The sitting tolerance was increased to 1/2 hour. The treatment was stopped on 11 April 1997.

8. An orthopaedic specialist, Dr. Lau had examined the plaintiff on 25 June 1998 and 31 May 2000. His reports are produced by the plaintiff and marked Exh. P2 and P3 respectively.

9. In his report for the 25 June 1998 examination of the plaintiff, Dr. Lau reported that the plaintiff complained that because of the persistent pain in his back, he could not work since the accident. He had severe listing of his body to one side and he walked with a mild limp. He could not squat fully. Radiological examination showed that there were mild degenerative changes of the thoracic spine. Also the lumbosacral spine had moderate degenerative changes from L2 to L5 levels. The disc spaces were well preserved. The MRI examination revealed a small disc prolapse at L3-4 level and there was a suggestion of a defect in the pars interarticularis of the L5 vertebra, both of which could be caused by the accident. He expected his back pain to improve further with an intensive course of conservative treatment including medication, physiotherapy and swimming on a regular basis. He also advised that the plaintiff should not carry out heavy manual work again. He was recommended to work as a security guard, waiter or shop assistant after the conservative treatment. He assessed the plaintiff to have 10% permanent disability from the accident.

10. In his second medical report dated 7 June 2000, Dr. Lau reported that he had attended the plaintiff on 31 May 2000. The plaintiff had informed him that he had regular follow up at PWH, but the back pain remained about the same in the past two years. The plaintiff was reported to complain that his back pain was disturbing his sleep and it increased by walking for more than 15 minutes and prolonged sitting. He had pain at left knee, not related to activity and there were night cramps at his left calf. Dr. Lau had examined him and found that there was spasm of left paraspinal muscle and that there was mild reduction of the lordotic curvature. These two symptoms, according to Dr. Lau giving evidence in court, are the objective signs of back pain. He agrees that mild reduction of the lordotic curvature indicates that the pain is mild. He concluded in his report that the small disc prolapse at L3-4 level and the defect in the pars interarticularis of the L5 vertebra could have been caused by the accident as the plaintiff had no back pain history. However, he opined that the plaintiff's condition had improved despite his complaint that the low back pain remained.

11. In the plaintiff's written statement dated 11 November 1999 admitted in evidence, he said that he was still troubled by the back injury and had the following symptoms:

(a) persistent low back pain;

(b) only able to walk 20 minutes because of pain in his knee and walked with a limp;

(c) difficulty in squatting;

(d) difficulty in going up and down stairs;

(e) difficulty and restriction in bending;

(f) unable to lift anything heavy;

(g) trouble sleeping;

(h) unable to stand for long periods'

(i) generally cannot stay in one position for lengthy periods;

(j) sex life affected and had to give up ball games such as football, basket ball or volley ball;

(k) headaches and dizziness.

Defence

12. The defendants dispute the quantum of the damages as claimed by the plaintiff mainly on the grounds that he plaintiff has exaggerated his pain and suffering or even malingered. Defence, however admits that the plaintiff has back pain. But it is only of a mild degree and such pain should have been fully relieved about 12 months after the accident. Defence relies upon the medical reports of Dr. Woo and Dr. Lam.

13. In the report of Dr. Woo (Exhibit D5), a neurology specialist, he reported that he had examined the plaintiff on 21 January 1999. The plaintiff had complained of impaired memory and low back pain. After neurological examination on the plaintiff, Dr. Woo found that the plaintiff's complaints simply did not fit with the neurophysiological and neuroanatomical principles. He demonstrated moderate global cognitive dysfunction on mental state examination. Such a magnitude of cognitive impairment was completely incommensurate with the mild degree of his head injury and his independence in activities of daily living. He demonstrated a diffuse weakness in all 4 extremities with an equal involvement of the agonist and antagonist muscles but without associated hypertonia or hyper-reflexia. Again, he demonstrated an extensive degree of motor weakness affecting all the muscles of both lower extremities. If these were genuine, they would indicate involvement of multiple nerve roots from L2 (second lumbar) to S1 (first sacral) segments. Yet, in the face of such an extensive weakness, there was no muscle wasting or change in the deep tendon.

14. Dr. Woo concluded that there was a strong suspicion that the deficits were either feigned or grossly exaggerated for the purpose of the examination. They cast serious doubt upon the integrity and genuineness of his complaints. Dr. Woo agrees that the plaintiff should have some sort of pain. But it is not the kind of pain that he was complaining. According to Dr. Woo, pain itself is a subject matter which is very difficult, if not impossible, to gauge. Without the co-operation of the patient, he finds it difficult to tell the pain the plaintiff was suffering. Based upon the medical literature on the evaluation of permanent impairment of the American Medical Association, he assesses the plaintiff of having 5% impairment. He admits that this is only an arbitrary assessment.

15. Dr. Lam, an orthopaedic specialist, had also examined the plaintiff and he had complied a report (Exhibit D6). Dr. Lam reported that he had attended the plaintiff at his clinic on 13 January 1999. The plaintiff at that time complained that he had low back pain, aggravated by prolonged strain, radiation of pin and needle sensation to left lower limb, along lateral shin to foot. He could not have ambulatory activities and could tolerate standing for 15 minutes or sitting 10 to 15 minutes.

16. On examination, the plaintiff showed many signs of back pain and sciatica, but there were as well many contradictory signs:

(1) He demonstrated a limping gait in the consultation room, but was observed to be walking in a perfectly normal manner in the corridor after leaving the clinic.

(2) When asked to stand on his left leg, he showed instability. However, when observed unnoticed, e.g. taking off trousers in standing position, he could do it with ease.

(3) He claimed to have marked tenderness at left lower spine, but there was no muscle spasm.

(4) He showed that this back flexion was limited by pain, but he could bend his back to full flexion when asked to point to numbness area at the foot.

(5) The restriction in back movement was not a consistent one. There was only restriction flexion, but good range in other directions.

(6) In entrapment of nerve root, there should be motor and sensory loss in the corresponding myotome and dermatome, accompanied by wasting of the muscles. Despite the claim of pain for 3 years, there was no obvious muscle wasting, motor weakness, nor definite pattern of sensation loss.

(7) The straight leg raising (SLR) test is a test for nerve root irritation, by mechanically stretching the lumbosacral nerve roots. He had restricted SLR in lying position during test, but could keep his hip at 90 degrees and knees straight when sitting on the crouch. In fact, both are similar tests for SLR and should generate same results. The discrepancy suggested exaggeration.

Credibility of Witnesses and Findings of Fact

17. It is common ground that the burden of proving the injuries as he alleges is on the plaintiff.

18. The complaints of the plaintiff as on 11 November 1999 seem not commensurate with the medical reports produced by the plaintiff i.e. Dr. Law (Exh. P4), Dr. Tse (Exh.P6) and Senior physiotherapist Wendy Wong (Exh.P5) mentioned above. The physiotherapist treatment was stopped on 11 April 1997. Dr. Lau in his first report of 10 September 1998 had recommended that the back pain should be improved if the plaintiff received physiotherapy. The plaintiff admits that he did not ask for further physiotherapy treatment after April 1997. He is unable to give good explanation for not doing so though he agrees that he is entitled to do so.

19. The plaintiff's evidence is also inconsistent with the medical report of his own neurologist Dr. Choa, who has not been called to court to give evidence. But he has compiled a report at page 97 of the bundle prepared by the plaintiff. Hearsay notice for this report has been served by the plaintiff on the defendant. Mr. Wright has submitted that the report has not been produced as evidence, therefore I should not make use of it. This issue is contested by Miss Tsang, who has agreed to supply authority to me after the trial. She has now submitted extracts from Phipson on Evidence, 15th edition at para.10-09: "Where one party serves a witness statement, or expert report, but does not call the evidence, the other party may use the written evidence." At the footnote, it refers to CPR (Civil Procedure Rules), which are not applicable in Hong Kong. However, Order 38 rule 2A (11) has the similar provision. I rule that the defendant is entitled to make use the report of Dr. Choa for the defence. At the end of his report, Dr. Choa concluded "Ho [the plaintiff] sustained mild injuries when hit by a falling pole 3 1/2 years ago. There was no loss of consciousness. His main complaint is of back pain. This cannot be substantiated but there is no neurological evidence of a cauda equina lesion. From a neurological point of view, he has little or no hard evidence of any impairment. The case will hinge on the orthopaedic specialists' opinions."

20. Dr. Lam is an orthopaedic specialist for the defence. He gives evidence and says that in his opinion, the back pain should subside as time goes by although he agrees with the opinion of Dr. Lau, an orthopaedic specialist for the plaintiff, that back pain may relapse from time to time. But he further says that the relapse will not be more serious or intense than it was previously unless there is another trauma or injury that cause back pain. Mr. J. Wright in his cross-examination did not dispute this. On this basis, the complaints of the plaintiff defy the medical findings by other medical practitioners mentioned above. In fact, Mr. Wright did not even challenge the evidence of Dr. Lam's medical report about the plaintiff feigning limping inside his clinic on 13 January 1999. On the same day, the plaintiff was video taped by Mr. Wong Kwai Tim (DW6) who was on the ground floor of the clinic. This was done without the knowledge of the plaintiff. The plaintiff was seen in the tape (Exh. D1) to be walking with his wife in Mongkok shopping from 12:30 p.m. to 2:35 p.m.. From the tape, the plaintiff is seen to be walking in a normal manner without any difficulty or unease. He was again video taped without his knowledge on 20 January and 21 January 1999. On 20 January, he was seen to be shopping with his wife. He was holding the shopping bags with one hand and both hands from time to time. He had also changed the positions of the holding of the bags. Sometimes he held it on one side. Sometimes he put it over his shoulder. He was seen to have walked around in Mongkok on that occasion for 3.5 to 4 hours. On 21 January, the plaintiff was seen buying food in the market for about 30 minutes. Throughout all the occasions, the plaintiff was seen walking and moving in a normal manner as if he had suffered no injury. Mr. Wright does not challenge the authenticity of the tape. He only complains that the tape was taken in January 1999. But it was only given to the plaintiff 2 days before the hearing. Defence counsel admits this, but she has not given any explanation for such non-disclosure of the tape evidence in the process of discovery of documents under the automatic directions. The evidence is admissible. But I have to say here that it is not a desirable practice for the defence to adopt such practice whereas the main purpose of discovery and the exchange of witness statements and expert reports before setting down of the hearing is for parties to put all cards on the table so that the other party will not be taken by surprise. What more important is that the legal adviser may be able to give appropriate advice to clients in light of all the evidence. I shall deal with this issue when I come to the matter of costs.

21. Dr. Lau has given evidence and confirmed in his examination in chief that the contents of his reports are true and correct. In the course of cross-examination, he was shown the tape. After seeing the tape, he changes his evidence and says that the plaintiff was walking in a perfectly normal manner with no sign of pain in walking. Obviously he was not in cramp. He could not be in severe pain over his back. He was in much better condition than he was complaining of and he was much better then he saw him [the plaintiff] in June 2000. He also agrees that it is possible that there was exaggeration by the plaintiff. He agrees that there is no nerve compression in this case. He confirms that there was muscle spasm on the back of the plaintiff on the day of examination in June 2000. But he cannot remember whether it was severe or mild. He cannot give a grading of the pain. Because of the muscle and the mild reduction of the lordotic curvature of the spine, he maintains that the plaintiff was having certain degree of pain on that day. But having seen the video, he is of the view that the plaintiff would be able to recover within one or two years' time after the accident and that it would be possible for him to return to his work as a construction site worker. Although Dr. Lau re-affirms that the contents of his reports are true in re-examination, this evidence is inconsistent with his evidence in cross-examination. Therefore I find that his reports are not reliable, in particular, regarding the pain suffered by the plaintiff.

22. The plaintiff has called his wife (PW3) to give evidence in order to reply to the video tape evidence. I find that her evidence cannot assist the plaintiff. She only says that the plaintiff had complained from time to time pain and he needed to apply some ointment. She says that the plaintiff has recovered much better in the recent year or so. The defence does not dispute that the plaintiff has suffered injury and from some mild degree of pain. This witness's evidence does not advance the plaintiff's case.

23. Having considered the evidence above, I find that, on the balance of probabilities, the plaintiff has exaggerated his injury and pain. I accept the evidence of Dr. Woo and Dr. Lam and Mr. Wong. Their evidence was not seriously challenged. There is no allegation of fabrication of the evidence by Mr. Wright. The plaintiff is unable to prove, on the balance of probabilities, those injuries and back pain he allegedly suffers. On these bases, I shall now assess the damages.

Pain and Suffering and Loss of Amenities (PSLA)

24. Mr. Wright acting on behalf of the plaintiff submits that the injury should be classified as one of the lower end of serious injury and he proposes $480,000.

25. Miss Tsang for the defence submits 6 cases concerning back injuries:

(a) Lai Wah-wai v Castco Testing Centre Ltd. HCA No. PI 422 of 1995 (Cheung J. 14 March 1996). The plaintiff sustained central and right side L5/S1 disc prolapse with compression of the right S1 nerve root. An operation was done. Plaintiff continued to suffer low back pain and bilateral lower limbs numbness; re-admitted to hospital for 20 days. Award $300,00. [$315,000 in 1998]

(b) Choi Chi Hung v Wong Kuen Bor t/a Bor Kee Electroplating Factory, 1995 No. PI 1026 (Cheung J., 9 October 1996). The plaintiff suffered a prolapsed intervertebrae disc. He had received laminectomy operation on L5-S1 and undergone hydrotherapy for about 7 months. Disability at 15%-20%. The award was $300,000 [$315,000 in 1998].

(c) Lai Ching v Wong Chiu Kwai PI 1192 of 1996 (Suffiad J., 12 June 1998). The plaintiff suffered a prolapsed disc at L4-5 level with compression of nerve root. Operation was performed and pain recurred after 5 months. Permanent disability was at 24%. The award was $300,000.

(d) Ho Chi-ming v Union Life Hong Kong Ltd. PI 1203 of 1996 (Suffiad J; 11 August 1998). The plaintiff suffered intense pain in the lower back radiating down to his legs. CT scan revealed burst fracture at 4th lumbar level which led to indentation of the thecal sac and the 4th lumbar nerve root. Operation for spinal fusion and pedicle screw fixation was performed. Not much improvement in condition. Clumping of nerve root at 4th lumbar found after operation. Permanent disability at 15%-20%. The award was $300,000.

(e) Lee Yuk Lan v Royalette International Ltd. PI 187 of 1995. The plaintiff slipped and fell on slippery floor and had suffered from diffuse back pain but no fracture. She had attended 65 sessions of physiotherapy treatment over 10 months. She complains of a number of disabilities including tightness in upper back and pain in lower back on walking more 2-3 hours. She was able to stand only about 1 hour; had backache on carrying more than 5 lbs. Examination revealed no neurological deficit in lower limbs; straight leg raising tests were normal. There was no intersegmental stiffness or muscle spasm. She was assessed to have 3% disability and was awarded $150,000.

(f) Chair Sai Sui v International Country Club Ltd. & others PI 522 of 1998 (Master Kwan; 26 October 1999). The plaintiff fell off his horse and landed on his buttocks, fracturing his 2nd lumbar vertebra. Plaintiff complained having pain. But he was only given prescription of ointment and painkillers. He was advised to receive physiotherapy treatment. Permanent disability was assessed to be 5%. On the medical evidence, the court found no basis for plaintiff to complain recurrent pain. The award was $150,000.

26. Counsel for the defendants submits that the plaintiff's injuries are comparable to cases (e) and (f) where no fracture, dislocation or compression of nerve root are found. He had only received 15 sessions of physiotherapy treatment. She proposes that the appropriate award for PSLA should at the most be $150,000.

27. Having considered the evidence, I accept the proposal of defence counsel. I therefore award $150,000 to the plaintiff for PSLA.

Loss of earning

(a) Pre-trial loss of earning

28. It is not in dispute that the plaintiff was earning $630 per day on the date of the accident. It is also undisputed that soon after the accident, the Government had changed the policy and prohibited manual labour for caisson works. The plaintiff says in his statement that he normally worked 28 or 29 days per month. Defence disputes and calls 3 witnesses to give evidence. They are Mr. Tam Yiu Keung, the employer of the plaintiff, Mr. Wong Shu Keung, and Mr. To Chun, both are caisson workers who had worked with the plaintiff at the same site. All 3 witnesses say that there were only 26 working days on average in a month because there is restriction on noise on Sundays. Mr. Wright does not dispute that there was such statutory restriction. Mr. Wright in his written submission has put down 27 days per month. It seems that there is no evidence that the plaintiff worked 27 working days in a month. I accept the evidence of the defence witnesses. I attach more weight to the evidence of Mr. Wong and Mr. To. I do not see any interest for them to give untrue evidence. They are no longer working for the defendant. There is no evidence to indicate that they are not telling the truth.

29. The plaintiff also says that even the Government has changed the policy and there is no caisson works, he can simply switch to work as a carpenter, a concretor a bricklayer or a drain-pipes layer had there not been the accident. The average daily wages for a concretor, a bricklayer or a drainlayer in year 2000 as according to the Census and Statistics Department is $950-980.

30. Defence also disputes this. Mr. Tam says that the wages above refer to the master or skilled worker. The plaintiff is not such a skilled worker. He cannot command such daily wages. Mr. Wong and Mr. To, both are casual workers at the construction site doing masonry work, say that for the year 1997, they were paid $570-580 a day and the average working days in a month was 26 days. For the year 1998, they were paid $500 per day and the average working days in a month was 26 days. For the year 1999 and now, they are earning $450 per days with 20 workings day on average per month. This is due to the running down of the market.

31. I do not accept that the plaintiff is a skilled bricklayer, concretor or a drain-layer who can earn $950-980 per day. He has said in his own statement that he was mainly specialised in caisson works. If he is such a skilled bricklayer, a concretor or drain-layer, he would not have engaged in caisson work in 1996 because according to the Government statistics, the daily wages for a bricklayer in June 1996 was $717.40, which is higher than his wage of $630 per day. Although there are daily average wages statistics by the Census and Statistics Department that show that an unskilled labour at construction site can earn $600 to $610 a day in July 2000, these figures are the average daily wages of workers engaged in Government building and construction projects. They are the wages paid to the contractor, who will usually subcontract to other contractors at certain profit. Therefore when a worker is employed by the sub-contractor, there is a difference between the rate given by the Government to the main contractor and that paid out by the sub-contractor or the sub-sub-contractors. The plaintiff in this case was employed by the first defendant who was a sub-contractor. I intend to rely on the evidence of Mr. Wong and Mr. To because they are in the similar situation as the plaintiff. They were earning $630 per day, same as the plaintiff on the day of the accident. They had to change to work as unskilled labourers in construction sites since the change of the Government policy. Their evidence reflect the realistic picture of the wages of the labourers in the construction sites. Having considered the evidence, I decide to accept the evidence of Mr. Wong and Mr. To.

32. The plaintiff was absent from 23 April 1996 to 22 April 1999 as assessed by the Employee's Compensation (Ordinary Assessment) Board (see p.79 of the bundle). Medical certificates in support of sick leave are issued by Li Ka Shing Specialist Clinic for the period between 7 April 1998 to 3 May 1999. These medical certificates are only generally indorsed by the doctor with back pain. Defence counsel submits that the plaintiff should be given only 12 months sick leave because Dr. Lam has given evidence that in his opinion, it is very easy to get sick leave certificates from government doctors during the follow-up at out-patient clinic. She has also cited the case of Lee Yuk Lan v Royalette International Ltd. PI 187 of 1995, in which the judge allowed 12 months sick leave against the medical certificate of 2 years sick leave. I do not think it fair to allow the plaintiff 12 months sick leave only. Even up to 21 December 1997, according to the physiotherapy report (p.81), the plaintiff's pain had been relieved 70%. Defence counsel has never challenged this report. Instead she has relied upon this report to challenge the evidence of the plaintiff. That shows that the plaintiff was still having 30% pain. By then it has been over one year from the day of the accident. Dr. Lam's evidence can only be taken as a general comment. In the absence of evidence for this case, I do not think it appropriate to make such assumption. However, upon cross-examination, Dr. Lau agrees that the plaintiff is able to have full recovery in one or two years' time and that he will be able to resume heavy work duty. For these reasons, I allow the plaintiff 2 years' sick leave.

33. Based upon the above analysis, the pre-trial loss of income is assessed as follows:

23.4.1996 to 31.12.1996

$16,380 ($630 x 26 days) x 8.25 months = $135,135

1.1.1997 to 31.12.1997

$14,950 ($575 x 26 days) x 12 months = $179,400

1.1.1998 to 22.4.1998

$13,000 ($500 x 26 days) x 3.7 months = $48,100

Total: $362,635

(b) Future loss of earning

34. I accept the evidence of Dr. Woo and Dr. Lam that the plaintiff will be able to recover fully and that he will be able to return to construction site work after one or two years after the accident. Dr. Lau, the expert for the plaintiff also agrees this in cross-examination after he has seen the tape. Although he re-confirms his report in re-examination, I have to say that on the balance of probabilities, his evidence of the reports is not accurate and cannot be relied upon. My conclusion is also fortified by the inconsistencies in Dr. Lau's evidence. In his first report, he did not mention that the X-ray film of the plaintiff showed a reduction in the lordotic curvature. But he had such observation in his second examination of the plaintiff and in his second report. He used this to support his view that the plaintiff was suffering from back pain. No explanation has been given. Dr. Lam gives evidence and he is asked to look at the X-ray again. He confirms in court that there is no reduction in the lordotic curvature. Dr. Lau says that pain is a subjective matter, which is difficult to detect. He says that the spasm of the muscle and the reduction of the lordotic curvature are the objective factors that show pain. Having considered the evidence, I find that the plaintiff has deliberately exaggerated his back pain to Dr. Lau as well. I therefore find that the plaintiff has probably recovered fully after 2 years after the accident. He has suffered no future loss of earning.

35. If I am wrong about this and that the plaintiff suffers future loss of earning, his loss will be assessed in the following manner.

36. Mr. Wright submits that the plaintiff is 47 and the multiplier should be 10. But he admits that there should be discount of 20% taking into account the nature of his work and the possibility that he may have developed early back pain symptoms. He therefore proposes the multiplier of 8, relying on the authority of Tsoi Kwong Ming v Green Valley Landfull Ltd. HCPI No. 407/1997 by Deputy Judge Woolley. He also concedes that the plaintiff will be able to take up non-manual work such as security guard with a monthly earning of $6,000. By using $630 per month, 27 working days per month and 5% inflationary increase, giving a multiplicand of $20,675 as at the date of hearing, he comes to a sum of $1,408,800 ($20,675 less $6,000 = $14,675 x 96 months).

37. Miss Tsang has submitted the following authorities relating to multiplier:

(a) Ho Chi Ming v Union Rife Hong Kong Ltd PI 1204 of 1996; age 40, multiplier 10

(b) Tsoi Kwong Ming v Green Valley Landfill Ltd. PI 407 of 1997; age 40, multiplier 12

(c) Tang Shau Tsan v Wealthy Construction Co. Ltd. PI 1092 of 1998; age 47, multiplier 8

(d) Lai Kin Wah v Hip Hing Construction Co. Ltd. PI 255 of 1996; age 48, multiplier 8

38. Having considered the above authorities, I am of the view that the appropriate multiplier should be 8. Taking 20% off from as suggested by Mr. Wright, the net multiplier should be 6.4.

39. Even if the plaintiff is unable to resume his construction site work, from the way he moved in the videotape and Dr. Lau's evidence, he will be able to work cleaning work. According to the Government Statistics produced by the plaintiff, the average monthly wage for a cleaning worker in 2000 is about $8,000. The plaintiff suffers a loss of $1000 per month of earning ($9,000 - $8,000). The future loss of earning is $76,800 (($9,000-$8,000) x 12 x 6.4). However, the pre-trial loss of earning should also be adjusted by adding $64,250, made up as follows:

23.4.1998 to 31.12.1998

($13,000 - $8,000) x 8.25 = $41,250

1.1.1999 to 31.12.1999

($9,000 - $8,000) x 12 = $12,000

1.1.2000 to 30.11.2000

($9,000 - $8,000) x 11 = $11,000

Loss of earning capacity

40. The plaintiff claims 12 months' wages for this item. Defence only agrees to $30,000, based upon the opinion of Dr. Woo that the plaintiff suffers 5% loss of earning capacity. The Court of Appeal in Tang Shau Tsan v Wealthy Construction Company Limited CACV 58 of 2000 has ruled that statements of opinion in relation to earning capacity are inadmissible. The expression is particularly unhelpful and indeed confusing because it is imprecise (at page 5). For this reason, this statement of loss of earning capacity has no evidential value. It falls upon the court to assess the loss of the earning capacity of the plaintiff.

41. The plaintiff asks for one year's wage for his loss of earning capacity. In my judgment, it is appropriate to award the plaintiff 6 months' wage for loss of earning capacity. The amount is $48,000 ($8,000 x 6).

Special damages

42. The plaintiff claims the following:

(a) medical expenses $5,592;

(b) bonesetter (mainland) $15,000;

(c) travelling expenses $2,200;

(d) nourishing food $20,000;

(e) future medical expenses $2,400

The defendants agrees to pay (a), and (c) as claimed. They disputes (b), (d) and (e).

43. The plaintiff says that he had gone to China to visit bonesetters to cure his back pain. He went there because the charge for the treatments was cheaper. He took the train to Shum Chun and from there he had to take the public transport to his country xian wei. The whole journey took about 3 hours. He went to the stalls along the roadside of his home country for treatment. He was charged about $1,500 to $1,600 for each treatment. He says that this charge is still cheaper than that in Hong Kong. Having considered his evidence, I do not believe him. I have already found that he has exaggerated his injury and pain. Yet, I do not believe that he would have taken the trouble to have a 3 hours single journey to his home country for treatment, especially he had severe back pain as he alleges. He has no receipt for the charges. Although it is very common for Chinese people to resort to bonesetter for this kind of injury, I have no hesitation to conclude that what the plaintiff says are not believable. I disallow this claim.

44. As to item (d), the defendants agree to pay $3,000. Although the plaintiff has produced no receipts for this item, I allow him $5,000.

45. As to item (e), defence counsel submits that this item should not be allowed because Dr. Lau has commented in his reports that the plaintiff's condition will improve further with an intensive course of conservative/physiotherapy treatment. The plaintiff has not sought any such treatment. It is doubtful if he will seek any treatment in future. Therefore this item should not be allowed. The evidence shows that the plaintiff has recovered fully. I accept the submission of defence counsel. I disallow this item.

Conclusion

46. The damages for the plaintiff have been assessed as follows: (On the basis of no loss of future earning)

47. If the plaintiff is entitled to loss of future earnings, then the damages should be as follows:

48. Therefore the plaintiff is not entitled to any common law damages when the employee compensation and the sick leave pay are taken into account.

Costs

49. As the plaintiff has failed in his claim for common law damages, he has to bear the costs of this assessment. As mentioned above, I shall take into account the fact the defendants have failed to disclose the videotape to the plaintiff's solicitors in the procedure of disclosure. Defence counsel has not given any explanation for this. The defendants' conduct has defeated the purpose of discovery before hearing under Order 25 rule 8. As such, I find that the conduct of the defendants has caused prejudice to the plaintiff in that had the defendants disclosed the evidence of the tapes to the plaintiff, the legal advisers of the plaintiff would be in a better position to advise the plaintiff. This will no doubt have effects on costs of the proceedings. The plaintiff is assisted by the Legal Aid scheme. The public fund will be wasted. For these reasons, I consider that I should exercise my discretion under section 52A of the High Court Ordinance and Order 62 rule 2(4) of the Rule of the High Court to cut down the costs of the defendants in this matter. I have noted that the allegations of exaggerations and malingering have been disclosed in the medical reports of Dr. Woo and Dr. Lam. The videotape forms a strong supporting evidence. I make an order nisi that the defendants shall have 60% of the costs of this assessment of damages, to be taxed if not agreed. Such costs include the costs of the doctors attending the hearing at the assessment. The Plaintiff's costs is to be taxed in accordance with the Legal Aid Regulations. The costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.