RAI RAJ KUMAR v. PACIFIC CROWN SECURITY SERVICES LTD AND OTHERS

HCPI 312/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 312 OF 2016

___________

___________

_______________

JUDGMENT

_______________

1.  On 20 February 2014 the plaintiff (“P”) was working as a supervisor in the construction site of the Hong Kong–Zhuhai–Macao Bridge Project (“the site”) when he sustained personal injuries in the course of his employment.

2.  P was employed by the 1^st defendant (“D1”).  The 2^nd defendant (“D2”) is a joint venture.  D2 was the principal contractor of the site.  D1 and D3 were sub-contractors of the works at the site.

3.  P had been assigned by D1 to work at the site.

4.  On 20 February 2014 P was working at the site.  He was required to work with co-workers in the pile concreting preparation at the site.  There was concreting that was required to be done for an underwater pile extending from a floating platform down to the bottom of the sea.  The formwork of the pile to be concreted was constructed with a pipe of inside diameter of about 2.5 m (“the Pile Void”).   P and his co-workers had to install a long Tremie Pipe which would guide the concrete down to the bottom of the Pile Void and to fill up the void from the bottom.  The Tremie Pipe was constructed by connecting sections of pipes to extend vertically down to the bottom of the Pile Void.  The Tremie Pipe was fixed in position with a Tremie Fork made of steel frame.  The Tremie Fork, which weighed about 150 – 200 kgs, was made of steel and had a pair of parallel steel members along its length and a pair of locking plates to lock the Tremie Pipe in place.  The Tremie Fork was placed horizontally across the top of the Pile Void with the Tremie Pipe locked at its middle.

5.  In the course of installing the Tremie Pipe, the Tremie Fork was required to be removed from its location from time to time allowing the Tremie Pipe to be moved to find its way down.  Once the Tremie Pipe was in its proper position, P and his co-workers were required to install the Tremie Fork to lock the Tremie Pipe at that position.

6.  At around 12:20 pm on 20 February 2014 the Tremie Pipe could not go downwards as required.  P was required to stand above the Pipe Void and hold the Tremie Fork at the middle when two of the co‑workers were passing the same to the co-workers on the opposite side of the Pipe Void.  Unfortunately, the co-workers on the opposite side could not properly hold the Tremie Fork when it was passed to them.  The Tremie Fork dropped and P fell into the Pipe Void and sustained personal injuries.  He fell from a height of about 2 m.

7.  By this action P claims damages for personal injuries that he sustained. 

8.  By a consent order dated 15 June 2017 it was ordered that interlocutory judgment on liability be entered against D1, D2 and D3 in favour of P, with damages to be assessed.

9.  This is the trial of the assessment of damages.

10.  I heard evidence from one witness, namely P.

11.  It is not disputed that P is a Nepalese national who was born in Nepal on 20 April 1971.  He can speak a little English and a little Cantonese which he uses in his work.  He is right hand dominant.

12.  P was married in Nepal in 2010.  He arrived in Hong Kong under a dependent visa in 2011 and he has been living and working in Hong Kong since then. 

13.  P was first employed by D1 as a general labourer from 29 June 2011. He was assigned to work at a construction site in Kam Tin.  At that time he earned about $17,000 per month.

14.  After about 6 months, P was promoted to be a foreman responsible for rigger work.  He then earned about $24,000 to $26,000 per month.  After about 4 months as foreman, he was promoted to be a supervisor earning an average of about $26,000 to $27,000 per month.  When the project he was involved in terminated, P’s employment with D1 was also terminated on 7 August 2012.

15.  Shortly after that, P obtained employment as an electrician helper with Dragages Hong Kong Ltd earning about $24,000 a month.

16.  Around early July 2013, P was contacted by his previous employer D1 and was offered a job as a supervisor.  He resigned his job with Dragages Hong Kong Ltd and rejoined D1 on the same day as his resignation became effective namely, on 8 July 2013.  He was assigned to work at the site up to the time he sustained injuries as a result of the accident.

The injuries and treatment

17.  After the accident, P was taken to North Lantau Hospital for treatment. P landed on his right side when he fell.  He complained of right shoulder pain. The range of movement of the right shoulder was reduced.  There was an abrasion wound over the right forearm.  An X‑ray of the right shoulder and elbow did not reveal any fracture.  He was given an injection for pain relief and an anti-tetanus vaccine injection.  He was also given on-site physiotherapy and referred to Orthopaedic SOPD and physiotherapy at Queen Elizabeth Hospital (“QEH”) for further management. 

18.  P attended QEH the following day.  Medical examination revealed right elbow pain and swelling.  An X-ray of the right elbow showed suspicious incomplete radiolucent line projecting over radial head only seen on the lateral view.  The diagnosis was suspected fracture radius.  He was referred to the Orthopaedics Department.

19.  On 10 May 2014, almost 3 months later, an MRI of his right elbow was taken. It was found that P had:

(1) osteochondral fracture from the capitellum; and

(2) complete tear at the radial collateral ligament.

20.  P has also received physiotherapy sessions as well as occupational therapy sessions.  He attended a total of 16 physiotherapy sessions between March and May 2014.  He also attended 44 occupational therapy sessions between March and August 2014.

21.  P was discharged from the occupational therapy on 28 April 2014 as his progress was static. P’s functional capacity was assessed by the occupational therapy department of QEH on 28 August 2014 and it was assessed that he was unable to meet his pre-injury job demand.  It is clear that on 28 August 2014 the occupational therapy department of QEH came to the view that P was unable to return to his pre-accident job.

The Joint Medical Report

22.  On 13 August 2015 P was jointly examined by orthopaedic specialists Dr. Lee Po Chin (“Dr. Lee”), P’s expert, and by Dr. David H F Cheng (“Dr. Cheng”), the defendants’ expert.  Their findings are contained in the Joint Medical Report dated 16 October 2015 (“the Joint Medical Report”).

23.  Dr. Lee and Dr. Cheng recorded the complaints of P at the time of the examination as follows:

“ 1) Mr. Rai complained of constant pain of the whole right upper limb. He said the pain was bearable. However, the pain increased upon walking with the hand hanging down. Therefore, he had to walk with his right hand in his pocket. The pain was also aggravated when he laid on the right side. He also had pain on elevation of the shoulder and he was unable to elevate the shoulder.

2) There was clicking sound at the right shoulder.

3) He said he needed painkillers once a day. He said he noticed himself to run a fever whenever there was painful and he had to take Panadol.

4) He said he was unable to eat with his right hand and he had to eat with his left hand.  This impaired his activities of daily living.”

24.  Dr. Lee and Dr. Cheng carried out a physical examination of P and their findings are contained at paras 2 and 3 of the Joint Medical Report as follows:

“ 2.	Right Upper Limb
	2.1	No scar
	2.2	Diffuse tenderness right shoulder and whole of right upper limb
	2.3	No CRPS
	2.4	No deformity
	2.5	No redness and no increased warmth
	2.6	Range of Movements	Right	Left
		Flexion	50°	135°
		Extension	−10°	0°
		Pronation	50°	80°
		Supination	80°	80°
	2.7	Muscle Power (Grade 0-5)	Right	Left
		Biceps	3	3
		Triceps	3	3
		Forearm girth (cm below Olecranon)	30	29
		Arm girth (cm below Olecranon)	27.5	27
	2.8	50% decreased sensation
	2.9	Right upper limb reflexes normal, left upper limb electric shock during reflex testing
	2.10	Minimal muscle exertion during examination
	2.11	Unable to make a full fist
	2.12	Pulse normal
3	Right Shoulder
	3.1	Range of Movement	Right	Left
		Flexion	70°	180°
		Extension	20°	40°
		Abduction	50°	180°
		Adduction	0°	30°
		External rotation	70°	90°
		Internal rotation	30°	90°	”

25.  They also observed, as is shown in the medical records, that the MRI performed on 10 May 2014 revealed that P has sustained osteochondral fracture from the capitellum and complete tear of the radial collateral ligament.

26.  As set out in the Joint Medical Report, Dr. Lee and Dr. Cheng recorded that P had received treatment for:

(a) osteochondral fracture of the capitellum and complete tear of the radial collateral ligament of the right elbow; and

(b) right shoulder injury as well.

27.  They were satisfied that the right elbow injury and the right shoulder injury were caused by the accident.

28.  They were of the view that P was treated conservatively with occupational and physiotherapy which they considered was appropriate and adequate.

29.  Dr. Lee and Dr. Cheng agreed on their findings.  They state at para 7 of the Joint Medical Report that:

“ 7. We agree on the current examination finding. Examination showed that Mr. Rai wore a tennis elbow band. There was diffuse right shoulder pain and right elbow pain. There was no CRPS sign and there was no deformity. Movements of the right elbow were extremely limited in flexion and extension as well as in pronation. There was Grade III weakness of the right upper limb. There was decreased sensation of 50% of the while right upper limb. The right upper limb reflexes were normal. The left upper limb reflex testing showed electric shock feeling. There was minimal muscle exertion. Examination of the right shoulder also showed markedly decreased range of movements. He was unable to make a full fist. There was tenderness over the whole right upper limb. The pulse was normal.”

30.  It is significant that both Dr. Lee and Dr. Cheng agreed on the objective findings at the examination and their analysis of the same. These are contained at paras 8 and 9 of the Joint Medical Report which state:

“ 8. Dr. Lee opines that the objective finding at this examination could be consistent with some residual pain in the right elbow and the right shoulder. There was no evidence of CRPS that could explain the severe pain. The range of movement of the right shoulder and elbow recorded at this examination is much worse than those recorded by the therapist in QEH. There is no decrease in girth in the arm and forearm compared to the other side and there was no objective finding to support his decrease sensation of the whole right upper limb. Therefore, some residual pain may be present but Mr.Rai should have retained reasonable function in his right upper limb.

9.  Dr. Cheng agrees with Dr. Lee’s analysis.”

31.  Both specialists agreed that P had reached the stage of maximal medical recovery and that further treatment was not necessary. 

32.  It is also significant that Dr. Lee and Dr. Cheng both agreed that based on the objective findings at the examination, P will have limited ability to return to work in the construction site as he would have difficulty lifting heavy weight.  They were also of the view that in view of his musculoskeletal impairment, P may have difficulty in finding manual work.  They both agreed that P’s present job as a security guard was a more suitable alternative.

33.  I have no hesitation in accepting the agreed findings of Dr. Lee and Dr. Cheng as contained in the Joint Medical Report.

34.  P said in evidence that he still suffers from the symptoms which he described in his witness statement and his supplemental witness statement.  P’s case is that because of his injuries and his symptoms with reduced range of movement in his right upper limb, he cannot return to his pre-injury job.

35.  The defendants’ case is that P has regained full function of his upper arm and that he is able to return to his pre-accident job.  This was put to P in cross-examination which he denied.

36.  In evidence P said that his present symptoms were about the same as the symptoms he described at para 33 of his witness statement, namely:

“ (1) Persistent pain on the whole upper limb. Pain increased upon walking with the hand hanging down. Pain is aggravated when I lie on the right side. Cannot sleep on right side due to pain.

(2) Pain on elevation of the right shoulder. Unable to elevate right arm above shoulder due to pain.

(3) There is clicking sound at the right shoulder.

(4) Need to take painkiller once a day. There is fever when the pain increased and I have to take Panadol.

(5) Numbness on right hand.

(6) Mild swelling on right elbow.

(7) Stiffness of the riht elbow and right shoulder, more so in the morning.

(8) Reduced range of motion of the right shoulder and right arm.

(9) Weakness on right hand and shoulder. Cannot hold a firm fist on the right hand. Cannot eat with right hand; have to eat with left hand.

(10) Difficulty in putting on clothes my myself.

(11) Reduced right arm strength due to pain.”

37.  The defendants engaged investigators who conducted surveillance on P and took videos of the surveillance.  The videos are contained in Exhibits D1 and D2.  The videos were played in court and P was cross-examined on some of the footages.  P was surveilled in March and April 2017 as set out in the Investigation Report dated 27 April 2017.  P was again surveilled in June 2017 as set out in the 2^nd Investigation Report dated 27 June 2017.  The video footages have been summarized in Annex A to the opening submissions of Mr Kelvin Leung, for P.

38.  I have considered the video footages, the two Investigation Reports, the evidence of P and counsel’s submissions.

39.  Mr Cao, for the defendants, submitted that P has grossly exaggerated his symptoms and that he was able to return to his pre-injury job. He relied on the video footages and matters contained in some of the medical notes as set out in his closing submissions. I have considered the same. 

40.  It is not disputed that P is right hand dominant.  Since the accident P has been using his left hand and arm more than his right hand and arm.

41.  It seems to me, and I so find, that the video footages show that P was using his left upper limb more than his right upper limb for most of the time that he was surveilled.  He was also shown to have been carrying a cross shoulder bag resting on his right side at about the waist level.  He explained in evidence that he used the shoulder bag to rest his right arm and elbow.

42.  Mr Cao pointed out that in some of the video clips P was not resting his right elbow on the shoulder bag.  P demonstrated when giving evidence that he would rest his right hand on the link connecting the shoulder strap to the bag.  What is clear from the video clips is that whenever he was using the cross shoulder bag, it was always placed on his right side, not his left side. I am satisfied and find that this was done to enable P to rest his right hand and elbow on the shoulder bag when he needed to. 

43.  It was also pointed out by Mr Cao that video footages showed that P used his right hand to punch in some security codes in a building and that he also used his right hand to pick up some vegetables from a box on the floor when shopping.  He was also shown to have used his right hand to hold a tissue over his nose. In a clip he was also shown to have briefly held his hands behind his back.

44.  It was also submitted by Mr Cao that in one of the video footages P was shown to have his right arm hanging down while he was walking briskly.  In my view, he was shown to be walking with his left arm swinging and his right arm placed above the cross shoulder bag as he walked.  In the brief video clip which shows his right arm hanging down whilst walking, it is clear from the clip that it was only his left arm, and not his right arm, that was swinging as he walked.

45.  There was also video footage showing P going into a video game arcade holding a plastic bag in his right hand.  He used the same hand to press down on a game machine. P said in evidence, which I accept, that in the video footage in question, he was holding a plastic bag in his right hand in front of a game machine. He placed his right palm on the machine and used his right index finger to press on a button to start the machine which then ran on automatically.  He did not continuously press down on the machine with his right hand. I believe P and accept his evidence.   

46.  Mr Cao also submitted that according to the notes of the occupational therapist of a session with P on 27 March 2014, it was recorded that there was negative pain at rest.  I would observe, however, that the relevant note records, inter alia:

“pain: −ve at rest, +ve on movement”.

This appears to record that when resting there was negative pain but that on movement there was positive pain.

47.  It was also pointed out that according to the notes of the doctor at QEH of a consultation on 16 July 2014, it is recorded that sleep was not disturbed, no night pain.  P in evidence denied that he said that to the doctor.  In my view, the doctor would not have made that up in his notes.  It seems to me that P may have forgotten having said that to the doctor.  It does not, however, mean that P ever said that there was no pain every night or that every night his sleep was not disturbed. 

48.  As submitted by Mr Leung, P had sustained a complete tear of his ligament and fracture of the capillum.  There would obviously be pain in his right upper limb.  It is not surprising that P would have difficulty sleeping on his right side which would cause him pain, although the intensity of the pain may not be as severe as P has portrayed.

49.  I do not believe P’s evidence that the symptoms and the pain that he suffers in his right shoulder and elbow are as severe as he says.  I do not believe this part of his evidence.  I accept the other parts of his evidence.  I am satisfied that he has a reduced range of motion in his right upper limb when compared with his left upper limb.

50.  The extent of the pain that P suffers is subjective. I would, however, rely on the findings of Dr. Lee and Dr. Cheng in the Joint Medical Report that there was no objective evidence that could explain the severe pain that P said that he was feeling. They also observed that the range of movement of the right shoulder and elbow recorded at their joint examination was much worse than those recorded by the therapists at QEH. They also considered that there was no objective finding to support the decreased sensation of the whole right upper limb. They found that he had reasonable function in his right upper limb. They came to the view that P would have limited ability to return to his pre-injury job in the construction site as he would have difficulty in lifting heavy weights and in finding manual work. They both considered that P’s present job as a security guard was a more suitable alternative.

51.  It seems to me, and I so find, that, P does not have full function of his right upper limb but that he has reasonable function in his right upper limb.  As Dr. Lee and Dr. Cheng said in the Joint Medical Report, although some residual pain may be present, P should have retained reasonable function in his right upper limb.  The video footages bear this out and, in my view, they do not undermine P’s case that he is unable to return to his pre-accident job. The unchallenged evidence of P is that his employment with D1 as supervisor required very frequent manual handling of heavy construction materials, gears and equipment by him.  I would also observe that nowhere in the video footages in evidence was there any clip showing P to have raised his right arm above his shoulder. 

52.  I am satisfied and find that as a result of his injuries P could not return to his pre-accident job and that he had to seek alternative employment which he did as a security guard. This, as Dr. Lee and Dr. Cheng said, was a more suitable alternative employment for P because of his injuries.

Pain, suffering and loss of amenities (“PSLA”)

53.  P said that he used to play volleyball or badminton before the accident and that he can no longer enjoy those activities. He said that he used to play badminton about once a week.  I believe him and accept his evidence.

54.  I have considered the authorities relied on by Mr Leung and Mr Cao.

55.  Mr Leung relied on:

(1) Li Wan Kei v Hyundai Engineering & Construction Co Ltd(HCPI 577/2004, 6 March 2006);

(2) Tam Kam Leung v Chan Chow Tong(HCPI 515/2009, 18 May 2010); and

(3) Iau Kau Ih v Wan Kei Goetechnical Engineering Co Ltd & others(HCPI 130/2001, 16 July 2002).

56.  Mr Cao relied on:

(1) Chan Shek v Milkway Image (Hong Kong) Limited(HCPI 295/2006, 6 October 2009);

(2) Lam Hung Yui v Muck Yun Chung formerly known as Chung Kee Electrical Works(HCPI 924/2004, 7 August 2007); and

(3) Tam Kam Leung, the same case relied on by Mr Leung.

57.  Each case, of course, depends on its own facts.

58.  As Bharwaney J said in a recent judgment (at para 22) in David John Slater v Commissioner of Police(HCPI 646/2012, 7 July 2017) awards for PSLA in personal injury cases falling within the serious injury category would start at $530,000 today.

59.  The injuries sustained by P would fall into the less than serious injury category. 

60.  Mr Leung submitted that the award should be $420,000.  Mr Cao submitted that it should be $350,000,

61.  In my view, a reasonable award for PSLA is the sum of $380,000 which is the sum I would award under this head.

Pre-trial loss of earnings and loss of MPF

62.  At the time of the accident P’s average monthly earnings, including allowances, was $35,785.  This is not disputed.

63.  At the time of the accident P was 43 years old.  He is presently 46 years old.

64.  Mr Leung submitted that consideration should be given for increase in wages for workers in the construction industry.  He relied on the figures published by the Census and Statistics Department.  These show a general increase in the income of construction workers during the period between February 2014 to April 2017.  These have helpfully been summarized in Mr Leung’s opening submissions.  These show on average an increase of 22.58% over the period of 3 years.  I would observe, however, that on the published figures some construction workers in fact had a reduction in their earnings although a majority of the different categories of workers did receive an increase. 

65.  Mr Cao submitted that the notional increase in earnings of P should be limited to 7% based on the comparable earnings of two other workers working for D1 as at June 2017 as set out in his closing submissions.  In my view, this is not a reliable guide as no evidence was adduced to show what the earnings of the other two workers were in 2014.

66.  In my view, some notional increase must be taken into account in considering the loss of earnings P suffered although in my view, the increase suggested by both P and D are not based on reliable evidence.   In the absence of specific evidence of increase in wages for someone in the position of P doing the type of work that P was performing before the accident, I consider that an increase of 10% would be reasonable.  With this increase the loss of earnings would be $39,363 ($35,785 × 1.10).

67.  The pre-trial loss of earnings would be the average of $35,785 and $39,363 which comes to $37,574.  The said sum of $37,574 is the average monthly earnings I would adopt for calculating pre-trial loss of earnings.

68.  In my judgment, P is entitled to pre-trial loss of earnings and loss of MPF for the full period up to 31 December 2014.  It is not disputed that P was given intermittent sick leave from the date of the accident to 19 March 2015.  Notwithstanding that he was on sick leave, P did look for a suitable alternative employment as a security guard before the end of his sick leave period.  On 2 January 2015 he obtained employment as a security guard with Savills Property Management Limited.  He was assigned to work at Immigration Tower in Wanchai where he still works as a security guard.  He was initially paid a basic monthly salary of $10,700.  In April 2015 it was adjusted to $12,000.  In April 2016 it was adjusted to $12,290.  His present earning is $12,650.

Loss of earnings

from 20 February 2014 to 31 December 2014,
ie for 10.3 months, at $37,574 per month      =     $387,012.

Loss of MPF:

(a) from 20 February 2014 to 31 May 2014,
capped at $1,250 per month, for 3.5 months =       $4,375;

(b) from 1 June 2014 to 31 December 2014,
capped at $1,500 per month, for 6.8 months  =     $10,200.

69.  It is agreed that the period from 1 January 2015 to trial is 31 months.

70.  P is also entitled to partial loss of earnings and loss of MPF from 1 January 2015 to trial as follows:

Loss of earnings  ($37,574 − $12,650) × 31 =  $772,644.

Loss of MPF  ($1,500 − ($12,650 × 5%)) × 31 =  $26,893.

71.  I would award total pre-trial loss of earnings and loss of MPF as follows:

Total pre-trial loss of earnings  ($387,012 + $772,644)  $1,159,656

Total loss of MPF  ($4,375 + $10,200 + $26,893)  $41,468

Future loss of earnings and loss of MPF

72.  Ds’ primary case is that P is not entitled to any future loss of earnings as he has full control of his right upper limb and is able to return to his pre-accident job.  I have already found against the defendants on this. In my judgment P is entitled to an award for future loss of earnings.  The multiplicand is the said sum of $37,574 per month. 

73.  P’s case is that but for the accident he would have worked in his pre-injury job in the construction industry until he reached 65 years of age.  P said that he would have wanted to work in the construction industry until age 65 years.  He said he knew two others who were 63 and 64 years old respectively, working in the construction industry. 

74.  Ds’ case is that it is unlikely that P would have worked in the construction industry after he attained 60 years of age.

75.  In view of the undisputed evidence that P was required to very frequently manually handle heavy construction materials, gears and equipments, it is unrealistic, in my view, to expect him to carry on such work until he attained 65 years of age.  I am not satisfied that he would be able to carry on the same type of work until aged 65 years.  In my view, a reasonable retirement age would be 60 years.  Applying the current edition of the Chan tables, that would give a multiplier of 11.65 for a male retiring at age 60 who was aged 46 years at trial with the applicable rate of return of 2.5%.

76.  It is conceded by Mr Leung that in calculating the loss of future earnings, the monthly offshore allowance of $4,000 that P received in his pre-accident job should be deducted.  The multiplicand should be $20,924 ($37,574 − $4,000 − $12,650).

$20,924 × 12 × 11.65 = $ 2,925,175.

I would award loss of future earnings at $2,925,175.

77.  I would award loss of future MPF at $121,276.50:

($1,500 – $632.50, being 5% of $12,650) × 12 × 11.65.

Loss of earning capacity

78.  P does not appear to be having difficulty in his present job as a security guard with the same employer since he started in January 2015. He has worked full time since then.  I do not think that it is appropriate to make a further award for loss of earning capacity on the evidence before me.  I make no award under this head.

Special damages

79.  These have been agreed at $9,342.

80.  The sum of $311,642.20 being the award P received as ECC payment should be deducted from the award for damages.

1.   I therefore award P damages as follow:

(a) PSLA	$ 380,000
(b) Pre-trial loss of earnings	$ 1,159,656
(c) Pre-trial MPF	$ 41,468
(d) Loss of future earnings	$ 2,925,175
(e) Loss of future MPF	$ 121,276.50
(f) Special damages	$ 9,342
Less ECC payment	($ 311,642.20) __________________
Total	$ 4,325,275.30 __________________

81.  P is also entitled to interest at 2% per annum for PSLA from date of writ to date of judgment and interest at half judgment rate on the special damages from date of accident to date of judgment.

82.  I give judgment to P against the defendants for the said sum of $4,325,275.30 with interest as set out above.

83.  I also make an order nisi that the defendants do pay P his costs of the action, such costs to be taxed, if not agreed.