RAI SURYA PRAKASH v. PACIFIC CROWN SECURITY SERVICES LTD AND ANOTHER

HCPI 1395/2015

[2020] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1395 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  This is an assessment of damages of a personal injuries claim brought by the plaintiff, Mr Rai Surya Prakash, against the defendants for injuries sustained in an accident on 19 April 2014, which took place at a construction site near Lantau Island, known as Pier 17 (“the Site”).  At that time, the plaintiff was employed by the 1^st defendant as a rigger in the construction of the Hong Kong–Zhuhai–Macao Bridge at the Site.

2.  It is not disputed that the 2^nd defendant, Dragages–China Harbour–Vsl Joint Venture (“Dragages–China”), was the principal contractor whilst the 1^st defendant, Pacific Crown Security Services Ltd (“Pacific Crown”), was a labour only contractor.

3.  There is also no dispute that at the material time, the plaintiff and his co-worker named Gurung, Ek Prasad (“Mr Gurung”), who has given evidence for the plaintiff at the trial, were on a metal net that covered half the opening at the top of a large concrete bucket mixer as they attempted to remove hardened concrete debris from the inner wall of the mixer.  In the course of doing so, the plaintiff fell about 1.5 metres into the mixer onto some timber boards and he suffered back injuries (“the Accident”).  He sues the defendants for negligence and for breach of statutory duties. 

4.  The defendants admitted liability on the first day of trial.  Hence, the court only has to deal with the issue of quantum. 

B. BACKGROUND

B1. The injuries and medical attendances  

5.  The plaintiff was born on 11 August 1987.  He was 26 years old at the time of the Accident, and was 30 years old at the time of trial. 

6.  The plaintiff attended the Accident & Emergency Department (“AED”) of Prince Margaret Hospital (“PMH”) on the day of the Accident complaining of low back pain.  He was diagnosed with back contusion, given pain killer injection and discharged with medication for pain control.

7.  Thereafter until 14 May 2015, the plaintiff attended various hospitals/clinics on multiple occasions. The medical reports available revealed inter alia, the following observations:

 (1) the plaintiff sustained back contusion;

 (2) he complained of low back pain, which was mechanical and static in nature;

 (3) he had radiation of back pain to his right lower limb sometimes;

 (4) he complained of tenderness at the lower back and sacral region,as well as at the lumbar spine;

 (5) his range of motion of the back was limited;

 (6) he could change his posture swiftly;

 (7) there was no fracture in the lumbar spine;

 (8) there was no lower limb weakness;

 (9) his lower limb power was normal bilaterally and straight leg raising test showed no tension;

 (10) there was no paraspinal muscle spasm;

 (11) there was no sphincter disturbance; and

 (12) the plaintiff walked unaided with a normal gait.

8.  On 24 November 2014, a private MRI of the lumbar spine was performed and the report (the “MRI Report”) revealed the following:

 (1) loss of lumbar lordosis;

 (2) L5/S1 disc desiccation;

 (3) L4/5 mild posterior disc bulge;

 (4) L5/S1 moderate posterior disc bulge which was in contact with bilateral S1 nerve roots; and

 (5) associated annular tear

(together, the “MRI Findings”).

9.  X-rays taken on 20 May 2016 [1] showed the following:

 (1) Slight decrease in lordosis. 

 (2) Preserved disc spaces.

 (3) No significant degenerative changes.

10.  The plaintiff received physiotherapy treatment for his lower back pain.  According to the physiotherapy report from Tuen Mun Hospital dated 9 February 2015, between 7 May 2014 and 5 February 2015, the plaintiff had attended 36 sessions of physiotherapy, but defaulted on 17 sessions.  He reported 40% improvement of pain, and improvement of walking tolerance from 15 minutes aided with umbrella to 20 minutes unaided.  He has not received physiotherapy treatment elsewhere.

11.  The plaintiff also received occupational therapy.  According tothe occupational therapy report dated 28 November 2016 (the “Occupational Therapy Report”), between 17 April 2015 and 18 June 2015, the plaintiff had attended 13 sessions of occupational therapy.  The plaintiff was also referred for work hardening programme.  It was reported that the plaintiff’soverall performance in the work hardening programme did not match his pre- Accident job demand but the progress became static.  He was discharged from the work hardening programme.

12.  At no time was the plaintiff hospitalised for treatment of his injury or lower back pain.

13.  The plaintiff also confirmed in cross-examination that he had not suffered another injury since the Accident.

B2. Joint Medical Report

14.  A joint examination was conducted on 20 May 2016 by Dr Wong Chin Hong (“Dr Wong”) for the plaintiff, and Dr Ko Put Shui Peter (“Dr Ko”) for the defendants.  In their joint medical report dated 21 July 2016 (the “Joint Medical Report”), both experts agreed that the plaintiff had sustained an uncomplicated soft tissue back contusion injury as a result of the Accident[2].

15.  The plaintiff’s report to the experts on his occupational history can be summarised as follows[3]:

 (1) At the time of the Accident, he had been working as a rigger at construction sites for about two years.  Working hours was 12 hours per day, 6 days a week.  His duties included signaling, drilling, lifting of heavy objects (30 – 40 kgs) with other co-‌workers, climbing on height including ladders but no scaffolding.   

 (2) He has previously worked as an electrical worker at construction sites for about two years, and as a bar tender for five years.

 (3) He started working about two months before the joint medical assessment as a helper in a fast food restaurant, doing mostly paper work and only light manual duty.  He worked 6 – 8 hours a day, 3 – 4 days a week.

 (4) He was considering going back to construction site work but had not confirmed yet.

16.  At the time of the joint medical assessment, the plaintiff still complained of intermittent low back pain and occasional numbness in the right lower limb; and that he was on painkiller on an as-needed basis, 3 times a week[4].

17.  The experts agreed that the physical examination of the plaintiff at the time of the joint assessment revealed, inter alia, the following results[5]:

 (1) He could sit for 25 – 30 minutes.

 (2) He could walk unaided.

 (3) He was able to get up from chair normally.

 (4) His gait was normal, heel standing/walking stable, tiptoe standing/walking stable, and single leg stable and normal.

 (5) He complained of low back pain on full squatting.

 (6) Some positive Waddell stimulation signs were recorded during the examination of his back.

 (7) He complained of low back pain as well as tenderness on midline lower lumbar and lumboscacral junction.

 (8) No deformity or swelling of the back was found.

18.  The experts also agreed that the plaintiff should have no significant problem in management of his activities of daily living[6].

19.  Dr Wong for the plaintiff gave the following opinions[7]:

 (1) In relation to the MRI Findings, while the L5/S1 disc desiccation was pre-existing, the Accident had triggered and could have caused or aggravated the annular tear and disc bulging.

 (2) He agreed that the plaintiff had no neurological deficit.

 (3) Despite some possible over-expression of symptoms and signs, it was plausible for the plaintiff to have persistent low back tenderness and pain.

 (4) The persistent low back symptoms were triggered and were fully attributable to the Accident.

 (5) All treatments and investigation rendered to the plaintiff thus far were appropriate.  The plaintiff had reached the state of maximum medical improvement at the time of the joint assessment.  No further surgical or medical intervention was recommended.

 (6) All the sick leaves given while the plaintiff was being treated and followed up (ie from 19 September 2014 to 29 June 2015) were reasonable and justifiable.

 (7) The natural progression of the pre-existing condition would not have brought about the plaintiff’s present state and he would have been able to continue to work until his retirement age of around 60 but for the Accident.

 (8) In view of the MRI Findings, the plaintiff is at increased risk of further aggravation of his low back condition should he re-engage in manual labour work as a rigger.  He would be better suited for jobs of lighter duties such as messenger, petty office assistant or watchman.  It was noted that the plaintiff had appropriately switched to working as an assistant in a fast-food outlet.

 (9) The plaintiff’s loss of earning capacity was about 5%.

20.  Dr Ko for the defendants gave the following opinion[8]:

 (1) The MRI Findings essentially showed no significant abnormality except for features of disc degeneration which should have been pre-existing for years and should bear no causal relationship with the alleged injury.  There were no features of remarkable or significant nerve root impingement or encroachment or significant narrowing of the spinal canal or neuroforamina.

 (2) Physical examination of the plaintiff essentially showed no significant abnormality except for grossly positive Waddell’s stimulation signs signifying certain degrees of inorganic elements.  There was no feature of any lower limb neurological dysfunction or any abnormality arising from the neurological elements in the lumbar spine.  The only positive finding was mild tenderness in the lower lumbar region.

 (3) The prognosis of the uncomplicated soft tissue injury that the plaintiff sustained as a result of the Accident should be excellent.

 (4) For the usual treatment period of this kind and degree of uncomplicated soft tissue back contusion injury, 6 – 8 months should be adequate and reasonable for reaching maximum medical improvement and static condition. In fact, from the orthopaedics and traumatology report at his last follow up on 16 February 2015, he had already been assessed to have reached static condition state.

 (5) The sick leave period until around end of 2014 should be adequate and reasonable.

 (6) The plaintiff’s physical condition should allow him to resume his pre-Accident job as a rigger at construction site without any significant impairment of his work efficiency and effectiveness.  

 (7) The plaintiff’s loss of earning capacity was about 1%.

C. QUANTUM

C1. The Plaintiff’s application to amend the Revised Statement of Damages

21.  After the trial had started, by a summons dated 22 September 2017 (the “Summons”), the plaintiff applied for leave to amend the Revised Statement of Damages (the “RSOD”). 

22.  The principal matters sought to be amended in the RSOD are:

 (1) The plaintiff’s average monthly salary before the Accident is changed from $26,573.78 to an average between $26,573.78 and $31,500.

 (2) The plaintiff’s claim for pre-trial loss of earnings based on his average monthly salary before the Accident is extended from the last day of his sick leave (ie 29 June 2015) to 31 January 2016.   

23.  The parties’ respective submissions on the plaintiff’s application to amend the RSOD only deal with amendment (1) above.

24.  Mr Sakhrani for the plaintiff submits that the plaintiff’s potential of earning an average maximum of $31,500 is evidenced in various documents of the parties, including the witness statements of the plaintiff and that of Mr Gurung, the plaintiff’s passbook, and one of the payslips from the 1^st defendant to the plaintiff.  Therefore, he submits that the defendants suffer no prejudice as they are forewarned of the evidence of the plaintiff’s higher earnings.  He also submits that the plaintiff has not substantially advanced a new or different cause of action by way of the amendments.

25.  Mr Cao on behalf of the defendants argues that the plaintiff’s application to amend the RSOD is unsupported by the documentary evidence, in particular, the plaintiff’s monthly payslips for October 2013 to March 2014, his earnings for the period from 19 June 2013 to 31 March 2014 as provided by the 1^st defendant to the Inland Revenue Department (“IRD”), and the plaintiff’s self-reported income as submitted to the IRD.  It is, he submits, a case of the plaintiff intending to “overreach”.

26.  In my view, whilst the plaintiff’s submissions in paragraph 24 above may well be relevant to applications to amend pleadings at an earlier stage of legal proceedings, they must be viewed through the prism of the unjustified and extreme delay in this case.  Even as late as the plaintiff’s opening submissions, the case advanced was still that the plaintiff’s average monthly salary was $26,574.  The plaintiff has failed to provide any explanation (either in their written or oral submissions) as to why the application was not made earlier before the trial. 

27.  After the Civil Justice Reform (“CJR”), the Court is generally reluctant to entertain late applications, especially when they are unexplainedand/or unjustified: see Waddington Limited v Chan Chun Hoo Thomas & Ors(unreported, HCA 3291/2003, 7 May 2013) at para 53.  In this respect, it is worth reiterating the underlying objectives in Order 1A, rule 1 of the Rules of the High Court (“RHC”), including the need to increase costs-effectiveness, ensure expeditiousness, promote reasonable proportion, and ensure fairness between the parties.

28.  Furthermore, the just resolution of disputes requires consideration of the question of potential procedural as well as substantive prejudice to the other party.  Here, the intended late introduction of the amendments will be highly prejudicial to the defendants.  If allowed, they would substantially change the amount of damages claimed by the plaintiff, while depriving the defendants of the opportunity to properly canvass the issue of the plaintiff’s pre-Accident earnings at the trial, in particular, the opportunity to cross-examine the plaintiff on the same. 

29.  As pointed out by the Court of Appeal in Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, it is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial.  Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round.  In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.  As Ma CJHC (as he then was) noted at para 8: 

“ The object is not to invite prolixity in pleadings but to achieve what has always been the position: to fairly inform the other side and the Court of a party’s case, identifying the issues and the true extent of the dispute between the parties.”

30.  In fact, at the trial Mr Sakhrani sought to ask Mr Gurung about his current earnings as evidence in support of the plaintiff’s case that the plaintiff’s average monthly salary was higher than the figure pleaded in the RSOD.  I disallowed his question on the grounds that it would be highly unfair and prejudicial to the defendants, as the current earnings of Mr Gurung were not stated in Mr Gurung’s witness statement.

31.  I note that the defendants (as pointed out by Mr Sakhrani) did not raise any complaint as to prejudice in their submissions.  However, I do not think that this Court is precluded from exercising its discretion, in the interests of the fair administration of justice (and in particular in the post-CJR era), to disallow the extremely late amendments as to matters which were not properly and fairly examined in the trial, merely because the other party had not raised objections in this regard.  In fact, had the amendments been made before trial, I would have acted differently when Mr Sakhrani sought to ask Mr Gurung about his earnings as evidence in support of the plaintiff’s earnings.  Thus, the unexplained failure on the part of the plaintiff to amend the RSOD before trial has the effect of precluding this Court from fairly examining the issue concerning the plaintiff’s earnings at trial.

32.  Although the parties have not addressed this Court on amendment (2) above, for the reasons to be explained in Section C3 below, there is also prejudice to the defendants if such late amendment is allowed.

33.  Having considered all the relevant circumstances, I must dismiss the Summons.  I would order that costs of and occasioned by the Summons be paid by the plaintiff to the defendants to be taxed if not agreed; and that the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. 

C2. PSLA

34.  Damages for PSLA are agreed in the sum of $200,000.   

C3. Pre-trial loss of earnings and MPF

35.  I would first deal with Mr Sakhrani’s submission that the defendants failed to plead in their case, nor cross-examine the plaintiff on, the plaintiff’s failure to mitigate his damages in not returning to work before 1 February 2016.  He argues that the defendants cannot now dispute the plaintiff’s claim for full loss of earnings up to 31 January 2016.  I cannot agree with this submission. 

36.  To begin with, this alleged pleading issue arose only because of the plaintiff’s late amendment in the RSOD (ie amendment (2) above) which I have already disallowed.  In any event, I do not think the defendants have failed to plead the plaintiff’s failure to mitigate.  By pleading that sick leave until around end of 2014 should be adequate and reasonable [9], the flipside of their plea is necessarily that any sick leave granted beyond the end of 2014 was unreasonable.

37.  I now turn to the substantive dispute on sick leaves.  The plaintiff has obtained sick leave certificates from 19 April 2014 to 29 June 2015 (ie a total of about 437 days).  The crux of the matter is whether or not the sick leave certificates granted to the plaintiff were reasonable.  The burden is on the plaintiff to demonstrate that all the sick leaves granted were reasonable.

38.  The two experts gave conflicting opinions.  Dr Wong for the plaintiff opined that all the sick leaves given from 19 September 2014 to 29 June 2015 were reasonable and justifiable.  On the contrary, Dr Ko for the defendants opined that the sick leave period until around end of 2014 should be adequate and reasonable, ie a period of approximately 8.4 months.  

39.  In persuading this Court to prefer Dr Wong’s opinion over Dr Ko’s, Mr Sakhrani for the plaintiff makes the following submissions:

 (1) In reaching his opinion on the appropriate sick leave period, Dr Ko failed to take into account the MRI Findings which revealed moderate disc bulge at L5/S1 and the annular tear.  He unjustifiably came to the conclusion (without any pre-‌Accident MRI) that the changes at L5/S1 were degenerative.

 (2) The plaintiff relies on the case of Leung Lee Jasmine v Go Fresh(Hong Kong) Company Limited (DCPI 2425/2014, 28 October 2016, at paras 16 to 20).  One of the main disputes in the case was whether the plaintiff’s annular tear of the L4/5 lumbar disc was caused by the accident or was a pre-existing condition.  The judge in that case rejected the expert’s opinion that the plaintiff’s annular tear was pre-existing, on the ground that the opinion amounted to a bare assertion which was not consistent with the objective evidence and the history of the plaintiff’s injuries as revealed in that case.

 (3) By not arguing the damages should be discounted by reason of the pre-existing degeneration, the defendants are in fact conceding that the increased risk of further aggravation of the plaintiff’s lower back condition due to the moderate disc bulge and annular tear are not pre-existing factors.

 (4) In light of the MRI Findings, Dr Ko also mis-described the plaintiff’s injury as requiring “usual treatment”, which led him to wrongly conclude that 6 – 8 months would have been adequate for the plaintiff to achieve maximum recovery.

 (5) Dr Ko also failed to consider other important matters, including the occupational therapist’s opinion that the plaintiff was unfit for his pre-Accident work, Dr Wong’s opinion that there would be an increased risk of aggravation of the plaintiff’s low back condition should he resume pre-Accident work, and the plaintiff’s complaints of pain.

 (6) It is incorrect for the defendants to say that Dr Wong did not provide any justification for endorsing all the sick leaves granted. This Court should read his opinion in the totality of evidence, in particular, the fact that Dr Wong has in other parts of the Joint Medical Report: (a) considered the MRI Findings and concluded that the plaintiff was at increased risk of further aggravation of his low back condition should he re-engage in pre-Accident work; and (b) opined that it was plausible for the plaintiff to have persistent low back tenderness and pain as a result of the Accident.

40.  Mr Cao for the defendants submits that Dr Ko’s opinion should be preferred.  His submissions can be summarised as follows:

 (1) The MRI Findings relied upon by Dr Wong was done about 1.5 years before the date of the Joint Medical Report, and was thus unreliable given that injuries healed over time. 

 (2) It is implicit in Dr Ko’s conclusion that any risk of further aggravation of the plaintiff’s low back condition is not significant, as he recommended the plaintiff to go back to pre-Accident work and opined that the plaintiff’s prognosis was excellent.

 (3) As was confirmed by the plaintiff during cross-examination, each of his medical attendances (except for one) occurred on the day of or the day after the expiry of his sick leave certificate. The only inference to be drawn is that the plaintiff’s medical attendances were for the sole purpose of obtaining sick leave certificates and were not prompted by his assertion of lower back pain.

 (4) In none of the actual medical certificates was the plaintiff required to have follow-up consultation.

 (5) The plaintiff defaulted on 17 sessions of physiotherapy treatment despite having reported 40% improvement of pain throughout the course of treatment, without any explanation as to why he had defaulted on so many occasions.  This shows that the plaintiff’s low back pain was nowhere near as severe as he had claimed.

 (6) The plaintiff’s complaints of pain were devoid of any objective foundation and was rejected by Dr Ko.  As Dr Ko noted, there was no significant abnormality and the only positive finding was mild tenderness in his lower lumbar region.  He also noted that the plaintiff’s prognosis was excellent (a point on which Dr Wong remained silent).

 (7) The assessment of the plaintiff’s complaints of pain must take into account his positive responses to Waddell’s stimulation signs.  Even Dr Wong himself accepted that there were some possible over-expression of symptoms and signs.  Therefore, Dr Wong’s opinion that it was plausible for the plaintiff to have persistent lower back tenderness and pain is inconsistent with the objective evidence and should be rejected.

 (8) The plaintiff is not a credible witness.  He has given conflicting versions in relation to whether or not he played sports before the Accident.  On the one hand, he told the experts that he did not do any regular sports before or after the Accident.  On the other hand, he said in his witness statement that he used to love playing a variety of sports including jogging before the Accident to keep himself fit but he was no longer able to enjoy any of these sports. 

 (9) The plaintiff’s complaints of night pain and sleeping difficulties are further contradicted by the fact that back on 19 January 2015, he had reported to the medical staff at Madam Yung Fung Shee Health Centre that he was “sleeping fair”.

 (10) The plaintiff sat in the witness box for an entire afternoon without any sign of discomfort.  At no time did the plaintiff ask for a break so that he could stand and walk/stretch.

41.  The defendants also referred me to the Court of Appeal case of Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited (CACV 208/2007, 8 April 2008), where Le Pichon JA held (at para 18) that this Court is not bound by the mere issue of sick leave certificates; that they are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the Court. 

42.  In response, Mr Sakhrani submits, and I agree, that the principle in Tam Fu Yip Fip only means that this Court has to form its own opinion as to the reasonableness of the sick leave granted based on the totality of the evidence.

43.  Mr Sakhrani further submits that while the defendants pleaded that the plaintiff’s pre-trial loss of earnings should only be allowed during Dr Ko’s prescribed sick leave period, Mr Cao on behalf of the defendants still cross-examined the plaintiff about his return to the hospital/clinics to obtain sick leave certificates in the said sick leave period, which is inconsistent with the defendants’ pleaded case.

44.  Finally, in response to Mr Cao’s challenge against the genuineness of the plaintiff’s complaints of pain, Mr Sakhrani makes the following submissions:

 (1) Even if a witness’ evidence is not accepted on one point, it does not follow that all of his evidence must be rejected, regardless of the inherent probability of his other evidence: see Khan Amar v Cheung Ying Construction Engineering Limited (unreported, CACV 153/2006, 17 May 2007) at para 34.  Therefore, the fact that the plaintiff gave conflicting versions on his prior sports experience does not mean that his complaints of pain must be rejected.

 (2) Although Dr Wong conceded the possibility of some over-‌expression of symptoms and Waddell signs, he did not doubt the genuineness of the plaintiff’s complaints of pain.

 (3) Contrary to what Mr Cao contends, Dr Ko never doubted the genuineness of the plaintiff’s complaints of pain. In particular, he did not say the absence of “significant abnormality” was inconsistent with the plaintiff’s complaints of pain. 

 (4) The finding of Waddell signs is not inconsistent with the existence of pain. 

 (5) Any allegation that the plaintiff lied about his pain must be commensurate with sufficiently cogent evidence.  The defendants have failed to adduce such evidence.  

45.  Having considered the parties’ respective submissions and all the evidence before me, I conclude that 8.4 months should be an adequate and reasonable sick leave period in the circumstances.

46.  According to the sick leave certificates (as confirmed by the plaintiff’s oral evidence), the plaintiff sought sick leave in each of the medical appointments because of his lower back pain.  While I agree with Mr Sakhrani that pain is subjective, and even accepting his submission that the presence of positive Waddell signs does not necessarily negate the existence of pain, I cannot ignore the fact that there is very little objective evidence—except the one MRI Finding which the experts gave very different interpretations, which I will come to later—corroborating with the plaintiff’s case that he was suffering from intermittent pain throughout the entire course of the sick leave period.  On the contrary, I find there is considerable objective evidence contradicting the plaintiff’s complaint of lower back pain.

47.  In this regard, I find that the plaintiff is an incredible witness in giving evidence about his pain and symptoms.  As pointed out by Mr Cao, the plaintiff gave conflicting accounts regarding his prior sports experience.  On the one hand, he told the experts that he did not do any regular sports before or after the injury; on the other hand, he stated in his witness statement that he “used to love playing a variety of sports including jogging before the accident” and that he could no longer enjoy these sports after the Accident. I am unable to see any credible explanation given by the plaintiff regarding such conflicting accounts about his sports experience.  It is in my view reasonable to infer that the plaintiff gave evidence about his love for sports prior to the Accident for the purpose of exaggerating his pain and symptoms and thereby enlarging the size of his damages claim.

48.  Further, during cross-examination, the plaintiff accepted Mr Cao’s suggestion that he went to hospitals/clinics when his back pain became unbearable.  Mr Cao then established that each of the plaintiff’s attendance at hospitals/clinics (except for one) occurred on the day of or the day after the expiry of his sick leave certificate.  In my judgment, it would have been too much of a coincidence for the plaintiff to attend hospitals/clinics in such pattern had his complaints about his lower back pain and sleeping difficulty been genuine.  I accept Mr Cao’s submission that the pattern of the plaintiff’s attendances at hospitals/clinics tends to suggest that the plaintiff did so for the purpose of obtaining sick leave certificates; rather than finding medical cure or assistance with regard to his pain and symptoms.  In this regard, I also find the plaintiff’s present complaint inconsistent with the record of his attendance at Madam Yung Fung Shee Health Centre on 19 January 2015 which recorded that the plaintiff had told the medical staff that he was “sleeping fair”.

49.  Furthermore, I also find it inexplicable as to why the plaintiff had defaulted 17 sessions of physiotherapy treatment despite having reported 40% improvement of pain throughout the course of treatment.  Again, had the plaintiff’s complaint of pain been genuine, it would have been most unlikely that he would default so many sessions of physiotherapy treatment which were said to improve his pain substantially.  The plaintiff was unable to give any explanation for such defaults, notwithstanding that he was specifically asked to give such explanation by Mr Sakhrani during re-examination.

50.  In my view, the above objective circumstances justify a clear inference that the plaintiff has considerably exaggerated his pain and symptoms, and I accept Mr Cao’s submission that any pain suffered by the plaintiff was nowhere near as severe as he had claimed. 

51.  Indeed, I also agree with Mr Cao’s observation that the plaintiff showed no sign of discomfort when he sat in the witness box giving evidence at trial. That said, I do not consider this a reliable indicator of the degree of pain or discomfort actually suffered by the plaintiff.  I therefore place little weight on this factor in making my finding that the plaintiff is not credible in describing his pain and symptoms after the Accident.

52.  I did not lose sight of Dr Wong’s conclusion that it was “plausible” for the plaintiff to have persistent low back pain.  However, his opinion must be read in the light of his observation that the plaintiff had “no neurological deficit” and, more importantly, his qualification that there were “some possible over-expression of symptoms and signs” by the plaintiff[10].  Dr Wong’s acknowledgement of “possible over-expression of symptoms and signs” is indeed consistent with Dr Ko’s observation that there were “grossly positive Waddell’s simulation signs signifying certain degrees of inorganic elements”.  In other words, the opinions of both experts are fully consistent with, and to some extent supportive of, my finding that there was symptoms magnification by the plaintiff.

53.  I have also considered the opinion expressed in the Occupational Therapy Report that the plaintiff’s overall performance did not match his previous job demand.  However, it appears that such opinion was based on the performance of the plaintiff during the assessment and an assumption that he had tried his best.  Given my finding that there was symptoms magnification by the plaintiff, I do not attach too much weight on the opinion expressed in the Occupational Therapy Report.

54.  As to Mr Sakhrani’s criticism that Dr Ko failed to consider the Occupational Therapy Report in giving his opinions, I note that the Occupational Therapy Report was dated after the Joint Medical Report, and as such, the Occupational Therapy Report was simply not before the experts for their opinions when they produced the Joint Medical Report.  In addition to the point I made in the foregoing paragraph, I also do not agree with the submission that Dr Ko had improperly ignored the Occupational Therapy Report in offering his opinions.

55.  Mr Sakhrani also submits that Dr Ko, in reaching his opinion, failed to consider the MRI Findings.  Despite his commendable efforts, I am unable to accept this submission.

56.  In this regard, I note that Dr Ko did refer to the MRI session performed on 24 November 2014, and opined that it essentially showed “no significant abnormality” and “there was no features of remarkable or significant nerve root impingement or encroachment or significant narrowing of the spinal canal or neuroforamina” [11].  Thus, I do not think it is fair to say that Dr Ko failed to consider the MRI Findings.

57.  I understand that the plaintiff disagreed with Dr Ko’s interpretation that the MRI Findings revealed “no significant abnormality”, but I am unable to accept the submission that Dr Ko’s opinion was unreliable because of this when Dr Ko did refer to the MRI session.  Further, the MRI session was done about 1.5 years before the date of the joint examination, and it was open to Dr Ko to opine that the plaintiff’s prognosis was excellent in the Joint Medical Report on the basis of all the materials (including the MRI Findings) available before him at the time of the Joint Medical Report.  Indeed, as submitted by Mr Cao, Dr Wong did not take issue with Dr Ko’s opinion that the plaintiff’s prognosis was excellent.

58.  Contrary to the plaintiff’s submissions, the present case is in my view distinguishable from Leung Lee Jasmine (supra).  In Leung Lee Jasmine, HH Judge Andrew Li rejected the bare assertion of a medical expert that the annular tear suffered by the claimant was unrelated to the accident in question. In the present case, Dr Ko did not make any bare assertion that the plaintiff’s annular tear was pre-existing.  Instead, Dr Ko had considered the MRI Report and observed that there was no significant abnormality and no features of significant nerve root impingement or encroachment or narrowing of the spinal canal or neuroforamina; further, Dr Ko gave his opinions on the physical conditions and prognosis of the plaintiff on the basis of his of physical examination of the plaintiff as well as all other materials placed before him at the time.

59.  Therefore, unlike the learned judge in Leung Lee Jasmine, I am unable to say that Dr Ko ignored the MRI Findings and, therefore, was wrong in coming to his opinions that the prognosis for the uncomplicated soft tissue injury suffered by the plaintiff should be excellent[12], and that the plaintiff’s condition should have reached maximal medical improvement and static conditions by around 6 – 8 months after the Accident[13].

60.  As to the objection that Mr Cao’s cross-examination of the plaintiff about his return to the hospitals/clinics to obtain sick leave certificates in the 8.4-month period is inconsistent with the defendants’ pleaded case, I do not think there is any substance in this objection. 

61.  In my view, Mr Cao was entitled to ask relevant questions to assist this Court to assess the overall credibility of the plaintiff’s evidence.  Even if such questions are inconsistent with the defendants’ case that the plaintiff should have 8.4 months of sick leave, I do not think that this Court is thereby precluded from reaching its opinion, based on the totality of the evidence, that 8.4 months would be the appropriate sick leave period in the circumstances.  In any event, I cannot see how this objection can assist Mr Sakhrani to advance his argument that it was reasonable for the plaintiff to be granted sick leave up to 29 June 2015, ie about 14 months after the Accident.

62.  Based on all the evidence before me, I find that the plaintiff is not a credible witness and I am not satisfied that the plaintiff was suffering from persistent low back pain throughout the entire sick leave period.  On the question as to what sick leave period would be reasonable in the present case, I prefer Dr Ko’s opinion to Dr Wong’s opinion.  It appears to me that in reaching his opinion, Dr Wong had placed much reliance on the plaintiff’s complaint of persistent low back pain, which I have rejected in light of the evidence available before me.  I prefer and accept that the opinion of Dr Ko that sick leave of 8.4 months (ie from the date of Accident up to the end of 2014) would be a reasonable and adequate sick leave period in the present case.  

63.  The next issue then is whether the plaintiff could and, therefore, should return to his pre-Accident work at the expiry of the 8.4-month sick leave period.  The burden is on the plaintiff to demonstrate that he would be unable to resume his pre-Accident employment.

64.  In this regard, the key medical opinions are as follows:

 (1) The occupational therapist opined that the plaintiff’s overall performance in the work hardening programme did not match his pre-Accident job demand but the progress became static.

 (2) Dr Wong opined that in view of the MRI Findings, the plaintiff is at increased risk of further aggravation of his low back condition should he re-engage in manual labour work as a rigger.  He would be better suited for jobs of lighter duties. 

 (3) Dr Ko opined that the plaintiff’s physical condition should allow him to resume his pre-Accident job as a rigger at construction site without any significant impairment of his work efficiency and effectiveness.

65.  Mr Sakhrani’s submissions on behalf of the plaintiff are similar to those discussed above.  In essence, he argues that Dr Wong’s opinion, in light of the totality of evidence (in particular the MRI Findings and the Occupational Therapist Report), sufficiently demonstrates that the plaintiff was unfit to resume pre-Accident work. 

66.  Mr Cao, in addition to the submissions set out above, argues that:

 (1) Dr Wong’s opinion is equivocal.  The fact that the plaintiff is “better suited” to lighter duties does not mean that he is “unsuitable” for construction work.  As such, the plaintiff fails to discharge the burden of proving that he would be unable to return to his pre-Accident work. In this regard, the defendants rely on the case of Tamang Tikaram v Tong Kee Company Limited and Others (unreported, HCPI 19/2013, 1 April 2015) where DHCJ Paul Lam SC (at para 77) held that equivocal expert opinion as to one’s ability to return to his previous job, eg that his ability would be “compromised” and there were “better jobs” for him, was insufficient to discharge his burden of proving that he would be unable to return to his pre-accident job. 

 (2) The plaintiff himself had also told the experts that he was considering going back to construction site work.

 (3) Even if this Court is to accept Dr Wong’s opinion, the plaintiff’s increased vulnerability should be addressed by way of an award for loss of earning capacity, and not by way of an award for loss of future earnings.  The defendants rely on the case of Gurung Bhakta Bahadur v Green Valley Landfill Limited (HCPI 333/2009, 28 January 2011), where Bharwaney J held (at para 48) that the court must assess damages based on the actual injury suffered by the plaintiff and its current impact on the plaintiff’s earning capacity.  Where the plaintiff is found to be able to return to his pre-accident employment but with an added vulnerability which might impact on his future capacity, the court should award damages for loss of earning capacity and not damages for loss of earnings.

67.  Mr Sakhrani submits that the present case is factually different from Gurung Bhakta Bahadur (supra).  He points out that in Gurung Bhakta Bahadur, the experts agreed that the plaintiff’s injury had recovered, and there were no equivalent MRI findings showing any disc bulge and annular tear as in the present case.  As such, he submits that the defendants’ reliance on the case is misplaced.  Whilst I agree that this case is factually distinguishable from Gurung Bhakta Bahadur, I do not think that Mr Cao seek to argue that the two cases involve similar facts.  Mr Cao merely argues that the said legal principles laid down by Bharwaney J are applicable to the present case. 

68.  In my view, the said legal principles laid down by Bharwaney J in Gurung Bhakta Bahadur (at para 48) are plainly right.  An award to compensate loss of earnings clearly serves a function different from an award to compensate loss of earning capacity.  In assessing the damages for loss of earnings, this Court should focus on whether the plaintiff would be able to return to his pre-Accident work, but not whether his returning to such work would make him more vulnerable to future injuries.

69.  For the reasons discussed below, I am not satisfied that the plaintiff has discharged the burden of proving that, apart from the period covered by his sick leave certificates, he would be unable to return to his pre-Accident employment.

70.  In the Joint Medical Report, Dr Ko opined that the plaintiff would be able to “resume his pre-Accident work as a rigger without any significant impairment of his work efficiency and effectiveness”.  Dr Wong did not disagree such opinion; instead, he gave a rather equivocal opinion that the plaintiff is at “increased risk of further aggravation of his low back condition” should he re-engage in pre-Accident work, and that he would be “better suited for jobs of lighter duties” [14]. Hence, I am of the view that the state of evidence is that the plaintiff could return to pre-Accident work, though (according to Dr Wong) he would be more vulnerable to future injuries.  Applying the principles in Tamang Tikaram (supra), I do not think that the plaintiff has discharged the burden of proving that he would be unable to return to his pre-Accident work. 

71.  And also for the reasons I have already discussed, I am not satisfied that the plaintiff has demonstrated that his intermittent low back pain is so serious and frequent as to prevent him from resuming his pre-Accident employment.

72.  That said, I take the view that it is reasonable to give the plaintiff some time to find a job in the construction site after the appropriate sick leave period expires.  Although there is no evidence on the reasonable time required for such purpose, I take the view that a period of approximately one and a half month should be adequate. 

73.  Therefore, I am prepared to award pre-trial loss of earnings fora period of 10 months from the date of the Accident.  As I have rejected the plaintiff’s application to amend the RSOD, I find his average earnings as a rigger to be $26,574 per month, which is the figure pleaded in the RSOD.  On that basis, the award for pre-trial loss of earnings and loss of MPF benefits amount to $279,027 ($26,574 × 1.05 × 10 months).

C4. Future loss of earnings

74.  For the reasons discussed above, I reject the plaintiff’s claim for future loss of earnings.

C5. Loss of earning capacity

75.  Although the parties have agreed on $100,000 for loss of earning capacity, the parties have come to the figure on different basis. 

76.  The plaintiff claims the sum of $100,000 for loss of earning capacity on the basis that he would also be compensated for future loss of earnings.  On the other hand, the defendants agree to the sum of $100,000 for loss of earning capacity on the basis that the plaintiff’s claim for future loss of earnings would be rejected.  Given the parties’ different underlying assumptions, I consider this head of damages to be in dispute.

77.  At the trial, I have asked the parties to make submissions on whether this Court should award a sum larger than $100,000 for loss of earning capacity in the event that I dismiss the plaintiff’s claim for loss of future earnings.  Mr Sakhrani submits that in that case, this Court is entitled to award a larger sum for loss of earning capacity.  He referred me to the case of Tamang Tikaram v Tong Kee Company Limited and Others (unreported, HCPI 19/2013, 1 April 2015), where DHCJ Paul Lam SC awarded a larger sum for loss of earning capacity after rejecting the plaintiff’s clam for future loss of earnings.  Mr Cao on the other hand submits that the plaintiff is confined to what they have pleaded in the RSOD such that $100,000 is the maximum sum this Court should award. 

78.  I do not agree with Mr Cao’s submission.  Whilst I have earlier ruled that the plaintiff is bound by their pleaded average monthly salary (as a matter of evidence) in their claim for pre-trial loss of earnings, I do not think that the plaintiff is equally so bound by their pleaded sum for loss of earning capacity.  As DHCJ Paul Lam SC pointed out in Tamang Tikaram (at paras 85 – 86), in assessing the damages for loss of earning capacity, the Court is to award what is “fair and reasonable” in the circumstances of each particular case.  As such, in exercising its discretion to come to a fair and reasonable award, this Court is not, and cannot be, bound by the figure pleaded by the plaintiff.

79.  On this issue, I accept Dr Wong’s opinion based on the MRI Findings that the plaintiff is at increased risk of further aggravation of his low back condition should he re-engage in his pre-Accident work as a rigger.  As such, I find that the plaintiff suffers a handicap in the labour market and I would award damages for loss of earning capacity to compensate for his increased vulnerability.  The plaintiff is now 30 years old and enjoys a full working life.  As opined by Dr Wong, he would have been able to continue to work until his retirement age of around 60 but for the Accident.  Doing the best I can in the light of the totality of the evidence, I assess damages for loss of earning capacity in the sum of $450,000 in the present case.

C6. Other special damages

80.  These are agreed in the sum of $8,855.

C7. Employees’ compensation

81.  The total award must be reduced by the sum of $486,119.79 received by the plaintiff as employees’ compensation. 

C8. Interests

82.  I award interest on general damages for PSLA at 2% per annum form the date of service of the writ up to the date of judgment, and interest on pre-trial loss of earnings and other special damages at 4% per annum from the date of the Accident to the date of payment of employee’s compensation, and thereafter on the remaining balance, after the deduction of employee’s compensation, up to the date of judgment. 

C9. Summary of awards

83.  A summary of my awards are as follows:

PSLA (agreed)	$ 200,000      and Interest
Pre-trial loss of earnings and MPF	$ 279,027      and Interest
Future loss of earnings and MPF	Nil
Loss of earning capacity	$ 450,000
Special damages (agreed)	$ 8,855
Sub total :	$ 937,882
Less   employees’ compensation	$ (486,119.79)
Net award :	$ 451,762.21 and Interest

C10. Costs

84.  Mr Sakhrani in his written closing submissions invites this Court to order indemnity costs against the defendants in relation to the plaintiff’s costs of prosecuting his case on liability, on the basis that liability was admitted only after the plaintiff’s case was opened on the first day of trial.

85.  In response, Mr Cao submits that the plaintiff has not clearly stated his grounds for seeking indemnity costs in his submissions.  Furthermore, the plaintiff has not been prejudiced significantly in terms of costs as the defendants conceded liability immediately after the morning break on the first day of trial.  In any event, even for the purpose of determining the quantum, it would still have been necessary for the Court to consider how the Accident happened.

86.  I observe that according to the Defence filed in this action, on the question of liability, the defendants simply put the plaintiff to strict proof.  In fact, the defendants did not even file any witness statement in this action to explain how the Accident occurred.  Bearing in mind the nature of the Accident, I am of the view that the defendants should have conceded liability much earlier on, rather than leaving it till the first day of the trial.  Given that the parties have a positive duty to assist the Court to further those underlying objectives of CJR, including saving costs and court resources and promoting procedural economy (see Order 1A, rules 1 and 3, Rules of the High Court), I would order the defendants to bear the plaintiff’s costs of prosecuting his case on liability on indemnity basis; and the plaintiff’s own costs to be taxed pursuant to the Legal Aid Regulations.

87.  As far as the plaintiff’s costs on the issue of quantum, I make the costs orders nisi that the defendants do pay the plaintiff’s costs, to be taxed if not agreed; and the plaintiff’s own costs to be taxed pursuant to the Legal Aid Regulations.  Any application for variation of such costs order nisi should be made within 14 days from the date of this judgment by way of summons.

88.  In this regard, I should mention that although I have awarded a net sum that is less than $1,000,000, I will not say that it was unreasonable for the plaintiff to commence these proceedings in the High Court.  The Joint Medical Report was only made available in July 2016; and although I have rejected the plaintiff’s claim on future loss of earnings, I would not go so far as saying that it was not reasonably arguable.  Thus, in my said costs order nisi, I have not ordered the costs to be taxed on District Court scale.

89.  Finally, I wish to thank the counsel of both sides for their able assistance.