LAM HING CHOI v. YIP KING ON AND OTHERS

HCPI 263/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 263 OF 2006

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REASONS  FOR  JUDGMENT

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1. The plaintiff, Mr Lam, was a material handler working in construction sites.  On 24 March 2003, he was hit by an opening partition of a lorry against his right upper arm.  His right index finger was also injured.

2. Liability was admitted by the defendants and I am only concerned with quantum of damages. 

Injury

3. The injury to the plaintiff’s right arm and the index finger were all healed.  However, Mr Lam developed a post-traumatic frozen shoulder.  His doctor, one Dr Au, is of the opinion that the shoulder joint painful condition was probably produced by scar adhesion.  The MRI done in 2006 on both occasions did not reveal any significant abnormality except an increase in joint fluid and capsular hypertrophy in the right acromio-clavicular joint.

4. The defendants’ doctor, one Dr Lau, considered that these findings were consistent with stress and degeneration and there was exaggeration on the part of Mr Lam.  He considered that there should not be any shoulder pain for Mr Lam as there was no medical or physical findings as revealed in the MRI or other investigation. 

5. However, Dr Au considered that, from his clinical experience, frozen shoulder developed after the right arm was hit, is very common and he is not surprised that Mr Lam still suffered from shoulder pain with certain degree of wasting of muscle around the right shoulder.  In fact, wasting of muscle was found by both doctors in October 2005 and also in October 2006. 

6. Accordingly I prefer Dr Au’s opinion than Dr Lau.  In particular I accept Dr Au’s opinion that the plaintiff could only return to his pre-injury job with reduced efficiency and as such Mr Lam said he could not handle any materials removal within a construction site.  This kind of physical exertion is too much for him.  He has persistent pain and restrictions of movement in the right shoulder and he being right-handed, could not handle material on his shoulder for the purpose of lifting up and carrying the same from one place to another.  I accept that lifting and transporting heavy building materials would be too much for him.  

PSLA

7. Both sides cited a number of authorities.  Mr Tim Kwok for the plaintiff submitted that the award under this heading should be around $300,000 whereas Ms Christina Lee for the defence submitted that the amount should be between $100,000 to $120,000.

8. I am afraid all the cases cited by either side are not directly helpful in that most of them concerned with cases of much more serious nature.  For example, the case of Lee Lap Pang v. Yuen Tat Wah trading as Chong Hing Motor Company, HCPI 1111/1997, 21 May 1999 per Deputy Judge To (a case cited by both sides), the plaintiff fell from 10 feet and suffered right shoulder pain due to bicept and rotator cuff tendenitis, and right elbow pain due probably to ulnar neuritis.  The same Dr Lau assessed him to have suffered 14% permanent disability.  $200,000 was awarded for PSLA

9. I consider that the award under this item should be $150,000. 

The plaintiff’s monthly earnings

10. One of the two main disputed items is the plaintiff’s past earnings.  Mr Lam claimed that on average he was earning $16,900 a month and he usually worked for 26 days a month at $650 per day.  In fact for the five months between August and December 2002 the average monthly working days were 28.3 a month. 

11. The defence pointed out that the plaintiff’s evidence is full of inconsistencies.

12. On the plaintiff’s own presentation, the following documents show various different rates as follows :

(1)     the 1^st acknowledgement on 9 July 2003 and his 2^nd acknowledgement signed on the same day as follows :

	1st	2nd
2002.11.1–30	$14,400	23 days x $650 = $14,950
2002.12.1–30	$13,800	22 days x $650 = $14,300
2002[sic].1.1–30	$11,400	18 days x $650 = $11,700
2003.2.1–28	$12,000	19 days x $650 = $12,350
2003.3.1–24	$8,700	15 days x $650 = $9,000

13. It can be seen that the 4^th defendant Kwok Leung Hung, also known as Ah Hung, presented these two documents for Mr Lam to sign.  Mr Lam said he already knew the amount was less than what he actually earned in those days.  However, he said that one Chan Yee Kin, who introduced him to work for Ah Hung, told him that Ah Hung said he could not make the figures too high as he was afraid he would be sacked by his own boss. 

14. Thereafter Mr Lam made four separate applications in 2005 for payment of salary during his sick leave period from 1 April 2004 up to February 2005 :

15. The aforesaid inconsistent documents made by the principal contractor and the direct employer Mr Lam were never explained by the defence.  Instead, the defence attacked the plaintiff’s evidence by saying that he himself is changeable like a weather cock in the wind. 

16. I must say that the evidence of Mr Lam is not perfect.  However basically he was saying that he signed the two acknowledgements on 9 July 2003 because he did not have his own records with him, though he had in mind that those were lesser sums than what he actually received in the past.  He saw the daily wages changed from $650 to $600 but he was told by his colleague Chan Yee Kin that Ah Hung said he could not make the figures too high as he was afraid he would be sacked by his boss.  He signed the documents because he was desirous of receiving some money right away.  Even if he did not agree the daily wages and the number of working days per month, he asked rhetorically whether he could then have to fight with Ah Hung. 

17. He said he had reported the matter to the Labour Department, to one Mr Tang, but his ECC application stated his earnings was $13,300 a month.  However it should be noted that in the newly admitted ECC documents he stated that his daily wages was $650 and he worked on average for 26 days a month (see page 155(4), statement made by Mr Lam on 29 June 2005). 

18. It should also be noted that no one from the defence gave evidence and no explanation was made as to why they claimed $603 per day in the aforesaid Form 2 back in July 2003.  There was no explanation from Ah Hung as to why the two acknowledgements, both dated 9 July 2003, were different in all the figures for each month.  This is evidence that Ah Hung just made up some low figures himself.  There was no one from the defence to contradict the plaintiff’s evidence at all.

19. In the end, I accept the plaintiff’s evidence that he was earning $650 a day and the $600 a day for the month of March 2003 was lowered without his consent.  In fact his record shows that he worked for 28.3 days on average for five months at the end of 2003.  I therefore consider that his claim for working on an average of 26 days per month is a fair claim.

Loss of future earnings

20. The second main disputed item is the loss of future earnings.  The defence submitted that Mr Lam could resume his work as a material handler in a construction site after his sick leave period.  I must say that this is in fact an exaggeration on the part of Dr Lau.  I observe that Mr Lam must have been a tall and handsome young man before the accident.  He was strong and would be an ideal person for a material handler in a construction site.  Since the accident his condition of frozen shoulder had not fully recovered with incessant pain everyday.  His muscles were wasted and his right shoulder was less strong as before.  The video taken surreptitiously without his notice showed that he was walking with less movement of his right hand, arm and shoulder.  He was obviously very careful when he was moving his right hand which was quite unnatural as appeared in the video.  Although he put on a T-shirt by raising his right hand to get into the right sleeve, he explained that that was done with his head and right side leaning towards the right in order to minimise the pain involved when he was raising his right hand.  The video showed that he had a slight movement towards his right side although it was not very clear as the cameraman was on the left side of Mr Lam shooting from afar.  

21. In the end I accept that Mr Lam could not go back to his previous job as a material handler involving heavy labour work in construction sites.  He could have been a security guard as his suitable job which is more sedentary.  The evidence showed that the monthly salary in 2007 would be in the region of $7,151.

CONCULSUION

22. For the aforesaid reason I made the following award :

23. There should be judgment for the plaintiff in the sum of $1,952,705 together with interest at 2% on PSLA from date of writ to date of judgment and 5.21% from date of accident to date of ECC award, and thereafter on the balance of all the pre-trial losses until judgment.

24. Costs of the action to the plaintiff and the plaintiff’s own costs be taxed according to the Legal Aid Regulations.

Epilogue

25. After some time of handling a string of cases in personal injury, I would like to make some comments on the medical evidence in general at the end of my judgment.  This is also in light of very responsible and experienced counsel appearing before me.

26. The point is this : in my experience, usually the plaintiff’s doctor would give a more generous pro-plaintiff medical report and the reverse is true for defence doctors.  Sometimes in the past, the PI judge had issued practice directions in respect of doctors’ expert opinion, and we started to have joint opinion.  Still, of course, given the joint opinion, differences are narrowed but then plaintiff’s doctors maintain certain more favourable opinion and the defence doctors maintain the less favourable opinion.

27. To my mind, doctors, like any other experts, should not be hired guns.  They are independent professional and therefore should give a true medical opinion, no matter whether he is instructed by the plaintiff or the defendant.  In an ideal world, giving the same expertise and independence, a plaintiff’s doctor should give the same opinion as a defence doctor, but I have not seen such a situation in my past experience.

28. Thus I am proposing in the future that doctors should be instructed jointly.  Of course, the plaintiff’s side has been examined and treated by a string of doctors, but eventually we can have a joint instruction to one or two doctors who shall give his/their opinions to both parties, and they are paid jointly; they will not be told that they are acting for the plaintiff or defendant.  Maybe by then we will have more accurate assistance from doctors.

29. I was told by a solicitor some time in the past that he had instructed a doctor and made a mistake.  Instead of saying “we act for the defendant,” he said, “we act for the plaintiff.”  The doctor gave an opinion.  He wrote another letter to the doctor and said, “I’m sorry, I have given you the wrong information.  We actually act for the defence.”  The doctor then revised his opinion to a less favourable opinion against the plaintiff. 

30. This is an indication that sometimes doctors take sides.  This I must say is the situation for some doctors; not all doctors behave like that.  This is very unhelpful to the court in the assessment.  For the aforesaid reason, I would propose certain changes in the area of medical opinion as aforesaid.