THAPA HARI BAHADUR v. PARAMOUNT ENGINEERING & MANPOWER AND ANOTHER

HCPI 408/2016

[2022] HKCFI 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 408 OF 2016

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  The Plaintiff seeks damages for personal injuries arising from two accidents occurring on 20 June 2013 and 1 September 2013 respectively, when he worked as a compressed air worker in a compression chamber in a construction site of MTR at Kam Tin (“the Site”).

2.  On the days of the accidents, the 2^nd Defendant was the principal contractor of the Site and the 1^st Defendant was the direct employer of the Plaintiff.

3.  The Defendants do not contest liability in relation to just the 1^st Accident, but other issues of liability and quantum are in dispute.

B. UNDISPUTED FACTS

4.  At all material times, a Tunnel Boring Machine (“TBM”) was used for tunnel excavation at the Site. The Plaintiff was employed by the 1^st Defendant as a compressed air worker and was required to change cutters or cutter tools of the head of TBM.

5.  The Working Chamber was the space between the back of TBM cutter heads and the manlock. When replacing or repairing cutter heads at the Working Chamber, compressed air was applied at the Working Chamber so as to increase the air pressure therein to prevent collapse of rock from the tunnel surface. Behind the Working Chamber was the Decompression Chamber for workers to stay inside to allow their bodies sufficient time to adjust to reduced oxygen and changes in air pressure.

6.  Prior to the commencement of his work with 1^st Defendant, the Plaintiff had a pre-employment medical examination with the Defendants’ nominated doctor, Dr Ronson Li Chi Tang (“Dr Ronson Li”). The Plaintiff was found to be fit for working in the Working Chamber.

7.  Following commencement of the Plaintiff’s employment on 30 January 2013, there would be periodic medical examination at the Site by Dr Ronson Li. From 23 April 2013 to 1 September 2013, the Plaintiff was assigned to work in the Working Chamber for 2 to 5 days per week.

8.  The 1^st Accident. On 20 June 2013, the Plaintiff and two co-workers were assigned to work at the Working Chamber. At or about 9:30 am, there was a sudden increase in air pressure in the Working Chamber, which caused pain and discomfort to him and his co-workers. The Plaintiff immediately underwent decompression and was sent to Dr Ronson Li for examination on 20 and 21 June. He was diagnosed with mild ear and frontal sinus congestion and was prescribed with painkillers. He was not given sick leave and reported for work on the next day with lighter duties. He was not required to work in the Working Chamber until 4 July 2013.

9.  On 1 September 2013, when the Plaintiff was working in the Working Chamber, he became unwell and lost consciousness. He was immediately taken to the Decompression Chamber and underwent decompression.

10.  After decompression, the Plaintiff was sent to the Accident and Emergency Department of Pok Oi Hospital (“POH”) by ambulance. He was then admitted to the Department of Medicine & Geriatrics of POH. He remained unconscious for 6 hours and was provisionally diagnosed with vasovagal syncope. No medication or medical follow-up was arranged. He was discharged on 5 September 2013.

C. PLAINTIFF’S CASE ON THE 2^ND ACCIDENT

11.  On 31 August 2013 at the end of the shift, the Plaintiff told an engineer that he did not want to work on the following day as he did not feel well and was on medication. The engineer said he was required to work despite his complaint. In Court, the Plaintiff said that the engineer even threatened to terminate him if he did not work.

12.  On 1 September 2013, as usual, the Plaintiff was asked to fill in a Questionnaire, which he understood was to confirm that he was fit to work in the Working Chamber. He, however, refused to sign that day because he was sick and was on medication. However, the lock operator who sent him to work filled in the Questionnaire for him, stating he was fit to work and then forced him to sign on it, which he did. He lost consciousness whilst working.

13.  In the 8 years that ensued, the Plaintiff has been assessed and treated by doctors across 17 types of general and specialist disciplines in both public and private sectors, which Mr Wong, counsel for the Defendants, has summarised in his closing submission.

14.  Throughout the treatment history, the Plaintiff has made a wide range of complaints of pain, including headache and pain of the skull, bone and joints, neck and back, pelvis and testicles, upper and lower limbs, stomach, chest and loin, ears and eyes, teeth, mouth and jaw; and even general pain. They have been summarised in Appendix II to Mr Wong’s closing submission.

15.  In P-3^rd [1], the Plaintiff alleged that he was still suffering from a wide spectrum of symptoms. His foremost pain was in his knee joint and elbow joint, with the former more painful than the latter. The Plaintiff said his knees would give way suddenly due to pain and he had fallen down on the street many times as a result. To prevent himself from falling again, he had used different walking aids, such as single walking stick, double walking sticks, and quadripod throughout the years.

16.  In addition to physical conditions, the Plaintiff also alleges that he has developed psychiatric conditions as a result of the 2^nd Accident.

17.  At this trial, the Plaintiff reiterated his joint pain. He used elbow crutches. He had hearing impairment which required use of hearing aid on his left ear. He said he still has psychiatric problem and was forgetful.

18.  The Plaintiff claims for pain, suffering and loss of amenities (“PSLA”) and loss of 2 week’s earnings for the 1^st Accident. He claims for damages of over $9 million in respect of the 2^nd Accident.

D. DEFENDANTS’ CASE

19.  The Defendants accept that as the Plaintiff’s employer and principal contractor, they were under a general duty to ensure that the Plaintiff’s work environment was safe and that a duty of care to the Plaintiff was readily imposed: White v CC of South Yorkshire Police [1999] 2 AC 455 at 506.

20.  The Defendants concede that there was breach of duty in respect of the 1^st Accident, but the Plaintiff had no financial loss.

21.  As regards the 2^nd Accident, the Defendants deny liability and quantum. They challenge the cause, the genuineness and the true extent of the Plaintiff’s alleged injuries.

22.  The Defendants assert that they had already implemented reasonable measures to educate the workers and to ascertain their fitness and suitability to work by requesting the workers to declare their health conditions in writing and assigning staff to make oral clarification. There were no other reasonable alternatives which the Defendants could have implemented to ensure that the Plaintiff was fit and suitable for compressed air work.

23.  The Plaintiff faces an additional hurdle in proving his case against the 2^nd Defendant. Assuming that the 1^st Defendant (through the lock operator) had forced the Plaintiff to sign the Questionnaire and to work despite his medical condition, there was no evidence showing that the 2^nd Defendant had any knowledge (actual or constructive) of the same.

24.  Assuming the Court finds any of the Defendants liable for the 2^nd Accident, the Defendants suggest that the Plaintiff should bear 50% of the blame for allowing himself to work in the Working Chamber when he felt unwell.

25.  On quantum, as pain is subjective, the Defendants invite the Court to consider objective evidence, based on the surveillance evidence and expert evidence from the disciplines of occupational medicine and psychiatry.

E. ANALYSES OF PLAINTIFF’S CREDIBILITY

26.  The Plaintiff’s credibility was important to show what led to the 2^nd Accident and what injuries he had suffered as a result. In assessing his credibility, I took into account the inherent probabilities of his evidence and contemporaneous documents.

27.  In the witness box, the Plaintiff often referred to his inability to read documents in English and his impaired memory attributable to his mental illness. He could not recall what he said to medical personnel or experts, who filled in the forms submitted to the Labour Department for him, and why a document was written in a particular way.

28.  Having considered his evidence and behaviour in Court, viewed the video clips and considered the medical reports, I agree with Mr Wong that the Plaintiff was highly incredible and dishonest. I shall explain why under the various issues below.

29.  There was a saga which led to the Plaintiff’s absence during the trial worth mentioning. As can be seen under section I(3) below, the Plaintiff complained on the 2^nd day of trial that his hearing aids were not working when Mr Wong was about to cross-examine him on his hearing impairment. The Plaintiff claimed to feel unwell after lunch break. He closed his eyes and would not respond to questions. He mumbled words which the interpreter was unable to hear. Eventually the Court adjourned and ambulance was called for him.

30.  On the 3^rd day of trial, the Plaintiff did not appear. A person claiming to be his friend called my clerk to say that the Plaintiff was hospitalized. The hospital name and illness were not even known. The friend claimed that the Plaintiff’s mobile phone did not have sufficient battery. As the Court did not receive credible evidence of the Plaintiff’s inability to attend Court, the proceedings continued. Dr Wong Chung Kwong (“Dr CK Wong”) and 2 defence witnesses gave evidence on behalf of the Defendants.

31.  The Plaintiff turned up on the 4^th day of trial and produced his medical certificate. He was given sick leave by the Kowloon Hospital. The reason was “medical consultation”. With the greatest respect to the medical officer, such a reason told nothing about the sickness of the Plaintiff and it was incredible that he would be granted sick leave for 2 days as a result.

32.  The Plaintiff claimed that he realized himself at hospital. When the doctor asked who he was, he said he did not know. He told the doctor that he had a court case and that he needed to be discharged. The medical certificate said nothing about all these. There was also no medical finding that the Plaintiff was unfit to attend Court.

33.  I do not find the Plaintiff to have any reasonable cause for absence and I reject his medical certificate. In answer to the Court’s question as to what questions he had wanted to cross-examine Dr CK Wong about, the Plaintiff even said he could not remember what was stated by the psychiatrists. In the premises, there was no reason to re-open the defence evidence.

34.  This incident of hospitalization during the trial was consistent with the “abnormal sick role” of the Plaintiff as described by Dr CK Wong. It was yet another piece of evidence to show that the Plaintiff was an incredible and dishonest witness.

35.  On the 4^th day of trial, after hearing Mr Wong’s closing submission, the Plaintiff was given time to prepare his written submission by a friend, if needs be. The Nepali interpreter gave him a document written in both English and Nepali that the Plaintiff should make sure that what his friend wrote down in the submission was true and correct before the Plaintiff signed.

36.  The Plaintiff has subsequently given the Court a set of unsigned written submission with a box file of documents that were purportedly prepared by Burke & Co, his former solicitors. There were also a few loose sheets of paper that the Plaintiff submitted together even on 24 January 2020 and another letter from Burke & Co on 26 January 2022.

37.  The Plaintiff did not sign on that set of written submission. Accordingly, I shall not accept that submission. Nor will I accept the further documents and letter as evidence.

F. LIABILITY FOR THE 1^ST ACCIDENT

38.  There is no dispute that the 1^st Accident was due to a sudden increase in air pressure, and that the Defendants were liable.

G. LIABILITY FOR THE 2^ND ACCIDENT

39.  In the Plaintiff’s Notification to the Labour Department dated 23 September 2013 (“Notification to LD”) and Statement to the Labour Department dated 17 October 2013 (“Statement to LD”), the Plaintiff stated the cause of his fainting to be “rapid pressure of air”. In the Statement of Claim, the pleaded cause centres on the Defendants’ failure to provide a safe system of work.

40.  The Defendants deny all those causes, saying that there was already a safe system of work but the Plaintiff did not take steps to protect his own safety by properly filling in the Questionnaire.

G(1). Alleged rapid pressure of air

41.  The Plaintiff accepted that the Notification to LD and Statement to LD were signed by him and filled in by someone on his instructions. At one point he said he could not remember who that person was or why that person put down such cause of accident.

42.  At another, the Plaintiff testified that the person who filled in the Notification to LD was a Nepali who worked in a law firm (not Burke & Co which first represented him). The Plaintiff claimed to have gone there 3 weeks after the 2^nd Accident, “looking for treatment because he was not educated”. That Nepali helped him to find a place in Guangzhou for treatment. The Plaintiff could not explain why that Nepali wrote the cause of accident as rapid pressure of air. The Plaintiff claimed not to remember things because of his psychiatric problem.

43.  I find it incredible that someone not present at the accident scene would have put down a specific cause of accident on his own volition. I do not accept the Plaintiff’s evidence. It was more likely than not that the cause of accident was written in the Notification to LD and Statement to LD on the instructions of the Plaintiff to explain why he fainted.

44.  This cause was not pleaded. Indeed, the Plaintiff confirmed at the trial that there was no such change of air pressure. The cause of the 2^nd Accident, he testified, was his “employer’s negligence”.

G(2). Alleged lack of safe system of work

45.  The scope of duty of the employer generally encompasses the provision of safe co-workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and, where called for, adequate training: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371, §§13-15, 24.

46.  In Charlesworth & Percy on Negligence (14^th ed) at §12-78, the meaning of system of work is elaborated:

“This is the term used to describe:

(i) the organization of the work;

(ii) the way in which it is intended the work shall be carried out;

(iii) the giving of adequate instructions (especially to inexperienced workers);

(iv) the sequence of events;

(v) the taking of precautions for the safety of the workers and at what stages;

(vi) the number of such person required to do the job;

(vii) the part to be taken by each of the various persons employed; and

(viii) the moment at which they shall perform their respective task.”

47.  In such respect, Mr Wong Ho Lun (Safety Officer of the 2^nd Defendant) gave evidence to the following effect:

(1) There were 30 hours of training over 3 days and tool-box talks provided to all miners before commencement of employment. The training covered the potential risk when working under compressed air and, most importantly, taught the miners to self-monitor their body condition during work.

(2) Following pre-commencement training, tool-box talks (which included reminders on hydration and resting) were also held by the 2^nd Defendant with the workers on the Site every day.

(3) The topics of the training course and the tool-box talks included “Introduction of Decompression Illness: Occupational Safety in Tunneling Work”, and “Medical Knowledge for Workers working in Compressed Air Environment”.

(4) All compressed air workers, including miners, were required to complete a daily Questionnaire before and after work, to declare their body condition and confirm whether they considered themselves fit for work. Mr Wong Ho Lun testified that the workers had been requested to fill in the same Questionnaire since the TBM was built in December 2010.

(5) If a worker reported that he was sick or unfit to work in the Working Chamber, they would not be allowed to work inside.

48.  With such training and instructions, the system already in place was exactly to ensure that unfit workers would not work in the Working Chamber. It was probable that the Plaintiff had known that he should not have worked in the Working Chamber if he was ill or under medication, and that he ought to have reported to the Defendants if he considered himself unfit for work.

49.  There is no evidence on any improper system or operation. Assuming that the Plaintiff fainted because he was unwell and unfit to work, the key question to ask is what the 1^st Defendant ought to have performed but had failed to perform. The answer is “No”.

G(3). The Questionnaire

50.  The Plaintiff has all along maintained in his witness statement that he did not understand English and hence the contents of the Questionnaire. He changed his evidence in the witness box and said he knew that the Questionnaire was his health declaration form to be filled in before and after work.

51.  In fact, he would have filled in the Questionnaire for 4 months, having worked in compressed air for 4 months before the 2^nd Accident occurred. The Plaintiff’s understanding of the contents of the Questionnaire was borne out by the answers he declared. He could answer “No” to questions about the presence of symptoms and “Yes” to questions about his fitness and suitability of work.

52.  Further, according to the Plaintiff, the lock attendant did ask him whether he felt “OK”. But there is no evidence that he told the lock attendant about his sickness at that time. One wondered why.

53.  The Plaintiff gave evidence under cross-examination for the first time that:

(i) On a normal day, the Questionnaire would have been filled in by himself; but, on the day of the 2^nd Accident, it was not so because he was sick. A log operator did it for him.

(ii) He was forced to sign the Questionnaire. He was told that he was already there to work. If he would not work, he would be sacked. The Plaintiff claimed to have told his lawyers about these but he did not know why it did not appear in any of his witness statements.

54.  I note that item (ii) in the preceding paragraph was contrary to §145(4) of P-1^st in which the Plaintiff said that Mr Chu (Engineer) did not threaten to sack him if he did not work. The Plaintiff could not explain why he made corrections or additions in P-3^rd but not in relation to item (ii). He could not explain why he did not tell the Labour Department about item (ii) either.

55.  The Plaintiff’s evidence was wholly contradicted by the unchallenged evidence of Mr Wong Ho Lun. Mr Wong testified that no one would have forced the Plaintiff to work because there were other stand-by workers who would have been happy to work in the Working Chamber as they would get higher pay.

56.  Having considered both sides’ evidence, I find the Plaintiff’s change of evidence in paragraph 53 above represented a recent fabrication and I do not find it to be true. The Questionnaire on the day of the 2^nd Accident was filled by the Plaintiff himself voluntarily.

G(4). Findings on the cause of the 2nd Accident

57.  The law does not aim at perfection, and one must be cautious in considering the matter with the benefit of hindsight: Ng Kong v Golden Caterers Ltd (unreported, HCPI 206/2004, 3 February 2005), per Recorder Edward Chan SC at §24:

“In approaching the question of whether there was any negligence or breach of the statutory duties here, it is important to bear in mind that the law does not require perfection. The employer is not an insurer of his employee’s personal injury. There is hardly any thing in the world which could not be better done with the benefit of hindsight. An employer who has exercised such care reasonably expected from a careful employer is not to be found liable to his injured employee for negligence simply because after the event someone is able to make some extravagant suggestions of how things could be better arranged to avoid this particular accident.”

58.  The system relied heavily on an employee declaring his own health. The Plaintiff failed to declare his own illness before work. I am not satisfied that the Defendants were negligent in causing the 2^nd Accident.

H. INJURIES ARISING OUT OF THE 1^ST ACCIDENT

59.  The injuries (paragraph 8 above) were trivial. The joint medical report on occupational medicine (“JROM”) confirmed that the Plaintiff did not suffer from permanent physical disability.

I. INJURIES ARISING OUT OF THE 2^ND ACCIDENT

60.  Since I find against the Plaintiff on the question of liability, I only, for the sake of completeness, deal with his alleged pain, psychiatric condition and hearing impairment.

I(1). Delayed complaint of multiple joint pain

61.  The Plaintiff had not complained about joint pain until a month after the 2^nd Accident:

(1) He was admitted to POH for 5 days from 1-5 September 2013. The discharge summary of POH did not record any complaint of pain at all. No follow up was required.

(2) The POH Nursing Care Plan concerning his 5-day hospitalization showed that, on 2-3 September 2013, his “self-care” was “independent”; pain free; and his “mobility” was “normal”.

(3) On 12 September 2013 (11 days after the 2^nd Accident), the Plaintiff went to Kwong Wah Hospital for treatment. Again there was no record of joint pain.

(4) In his Notification to LD, the Plaintiff did not make complaints of joint pain and only stated that he fainted. He had not ticked any box to state the injury he had suffered. He agreed that the Notification was filled in on his instructions but he could not recall who did so for him, or why the Notification did not state his injury except that he had fainted.

(5) The earliest record of the Plaintiff’s complaint of multiple joint pain was 30 September 2013 at POH. The Plaintiff could not explain the time lag.

62.  It was probable that the Plaintiff’s multiple joint pain was but an afterthought and exaggeration to inflate his claim.

I(2). Assertion of not being able to move his limbs for 2 days

63.  In his Statement to LD, the Plaintiff claimed to be unable to move his hands and legs for 2 whole days after the 2^nd Accident. That was wholly inconsistent with the medical records referred to in paragraph 61(1)-(3) above.

64.  Four years after the 2^nd Accident, the Plaintiff was jointly examined by the Occupational Medicine experts, Professor Wong Tsz Wai (for the Defendants) and Dr Li Tsun Yan (for the Plaintiff). He had not told those experts that he could not move his limbs for 2 days.

65.  The Plaintiff could not offer any explanation for the inconsistency between his assertion and the medical records. I reject this assertion.

I(3). Hearing impairment

66.  On day 2, Mr Wong cross-examined the Plaintiff as to his use of hearing aids in Court. The Plaintiff kept saying that his left ear had better hearing ability than his right, and yet he was using hearing aid in his left ear. He claimed to have forgotten since when he had been using hearing aids but it “hasn’t crossed a year”. However, it was clear from all 3 video clips that the Plaintiff had never used hearing aids whilst talking on the mobile phone or face-to-face with someone.

67.  Just as Mr Wong was about to cross-examine the Plaintiff on his medical report about his hearing ability, the Plaintiff claimed that his hearing aid could not work. He “could not hear anything”.

68.  Whilst the judicial clerk was fixing his hearing aid, this Court took the opportunity to converse with the Plaintiff with the assistance of the Nepali interpreter. For about 2 minutes, the Plaintiff had no difficulty communicating with the Court. The interpreter did not have to do anything additional (such as raising his voice or leaning closer to the Plaintiff) to enable the Plaintiff to hear.

69.  It was plain that the Plaintiff only pretended to have hearing disability. He simply did not need hearing aid at all, which was what the government doctor at Tuen Mun Hospital stated in his medical report as regards a consultation on 25 June 2021:

“could hear speech at conversational loudness even with his hearing aids removed during consultation, and he had no difficulty hearing the interpretor through the speaker phone. Physical examination was unremarkable.”

70.  I am not satisfied that the Plaintiff needed hearing aids. He was just feigning hearing disability.

I(4). Conclusion on the Plaintiff’s evidence on injuries

71.  The Plaintiff was plainly incredible and dishonest. I reject his evidence as to his injuries. I prefer to rely on the objective surveillance and medical evidence to decide what injuries the Plaintiff has suffered from and the causation.

J. SURVEILLANCE EVIDENCE

72.  When the Plaintiff went to see the psychiatric experts, it was recorded that he used only one stick. At this trial, he used 2 elbow crutches.

73.  The Plaintiff was asked to demonstrate how he walked inside the Courtroom. I observed that he got up slowly from his chair at the witness box. He needed to support himself with the elbow crutches. He walked very slowing in a clearly limping gait (with his trunk leaned forward) from the witness box to the Courtroom door and back to his witness seat. Before he sat down and whilst removing his elbow crutches, he had to put his left palm on the table before slowly sitting down.

74.  The demonstration in the Courtroom was similar to that before the psychiatric experts in the joint assessment.

75.  The Defendants rely only on 3 video clips but not the written reports.

76.  Dr CK Wong (psychiatrist) noted that even with the knowledge that he was put under surveillance, the Plaintiff did not walk with the obvious limping and slowness that he showed in the joint examination. Dr CK Wong opined that the limping and slowness showed in the joint examination was not genuine. It was very difficult, if not impossible, for him to sustain such obvious degrees of limping and slowness in his daily life (§85 JPER).

77.  In all these video clips, taken sporadically over 5 years from 2014-2019, the Plaintiff had used only one stick. He claimed to have forgotten since when he had started to use elbow crutches. He claimed to have fallen and was in serious condition. He was not sure but that it was probably a physiotherapist or doctor who gave him the elbow crutches. When pain accelerated to the extreme, he could not move his body.

78.  There was no credible explanation, still less medical evidence, as to why the Plaintiff had deteriorated to such an extent as to require the use of elbow crutches 8 years after the 2^nd Accident. On such evidence, the fall and resultant use of elbow crutches could not be attributed to the fault of the Defendants.

79.  In none of the video clips and during the trial had the Plaintiff ever patted on/massaged any part of his body, stretched his limbs or flexed his neck, as anyone would expect if he has suffered from multiple joint pain. His walking, sitting and standing postures were always upright although he would incline slightly to one side at times.

80.  At times in the video clips, his stick was held in one hand, but the other hand could move freely or use the phone even whilst he was walking, without affecting his balance (video clip of 3/11/2014).

81.  He could get into a taxi, putting the stick and left foot in first, without the need to lean on the stick or hold onto the door with his right hand. He raised both hands above his head to examine clothes that were hung up for about 2 minutes. He stretched his upper arm and stood on tip toes for 1-2 seconds (video clip of 23/6/2017).

82.  The video clip of 2 August 2019 lasted for slightly over 3 hours. The Plaintiff walked down 2 steps without difficulty. He got off a bus without difficulty. He walked up a flight of stairs of more than 20 steps without difficulty and without the need to halt. He had sat for about an hour. He stood up from a sitting position swiftly and naturally. Whilst sitting, he had on one occasion, bent his right knee and rested it on his left knee without difficulty or expression of pain. On 3 occasions, he bent his left leg and lifted it up to the level for the bench for a second or two. He kept shaking his right leg whilst sitting in the park. He put his left hand against his abdomen 3 times, claiming to have “shoot pain”.

83.  The video clips completely discredited the Plaintiff’s case that he has suffered from the pain he alleged or that he needed to use a stick or elbow crutches. He was plainly feigning and exaggerating.

K. MEDICAL EVIDENCE

84.  The Plaintiff’s injuries are not borne out by the medical evidence either. Mr Wong has summarized the medical evidence in his written submission which I accept.

K(1). Joint report of occupational medicine experts

85.  In the JROM, both experts reached consensus on almost every issue.

86.  For the 1^st Accident, both experts agreed that the Plaintiff suffered from barotrauma, which resulted in ear pain but did not give rise to any permanent damage to his ears (4/438/§5.1). It was also agreed that barotrauma of the sinuses would usually recover by itself, although the pain may occasionally linger on after several months (4/444/§15). In any event, the Plaintiff did not require any further treatment (4/445/§20) and there is no permanent disability caused by the 1^st Accident (4/444/§16).

87.  For the 2^nd Accident, the underlying cause for loss of consciousness was unknown. It might have been related to his pre-work upper respiratory tract infection (or medications prescribed to him), and possibly the hot and humid environment (not substantiated by objective temperature reading inside the Working Chamber). Side effects of medication he had been taking in the past few days could aggravate a fainting episode. The loss of consciousness was, however, not related to the 1^st Accident and was not caused by decompression sickness, as the Plaintiff was not yet decompressed (4/441-442/§5).

88.  The experts considered that remaining unconscious for about 6 hours was far too long to be consistent with the diagnosis of vasovagal syncope.

89.  Both experts envisaged that the Plaintiff could have developed arterial gas embolism with the symptoms of coma, weakness, and headaches (4/438/§5.2).

90.  All investigations for possible lesions in the Plaintiff’s brain, bones, and spine did not reveal any plausible cause for his complaints; and the nature and presentation of the pains that the Plaintiff had suffered “did not conform to any typical clinical illness, nor were they typical of the manifestation of decompression sickness” (4/439/§5.4).

91.  That said, both experts made it clear that it was not possible to conclude unequivocally that the Plaintiff’s complaints of multiple pains were caused by the 2^nd Accident. They could only hypothesize that decompression sickness developed during or shortly after he was being decompressed in an unconscious state or arterial gas embolism could have explained the prolonged unconsciousness that the Plaintiff suffered from (4/442/§6; 4/438/§5.2).

92.  While there was no objective investigation method to confirm Type I decompression sickness, both experts considered that it was uncommon for joint pains due to Type I decompression sickness to last several years (4/443/§8).

93.  Type II decompression sickness (also known as dysbaric osteonecrosis), which caused joint pain, could be detected by x-rays of the long bones and joints. However, both experts concluded that the Plaintiff was not suffering from dysbaric osteonecrosis (4/442-443/§§7-8).

94.  In such circumstances, the opinion of both experts was that the Plaintiff’s symptoms were not typical of Type I or Type II decompression sickness, or arterial gas embolism (4/442/§6). They agreed that there was a strong psychological component of his pain, as he was convinced that all his health problems were caused by decompression sickness (4/439/§§5.4-5.5).

95.  Hence, even taking the Plaintiff’s case to the highest, all that the JROM could show remained one of “theoretical possibility” or were opinions based on hypotheses. The Plaintiff falls short of proving that his injuries (if any) were, more likely than not, caused by the 2^nd Accident.

96.  The remaining questions would be whether his symptoms could be explained on psychiatric ground.

K(2). Joint psychiatric expert reports

97.  Allegedly, the Plaintiff suffered from severe physical and psychiatric sequelae after the 2^nd Accident, which have remained persistent and severe despite all the physical and psychiatric treatments he has received and is still receiving. As a result, he claimed that his activities of daily life have been severely affected and he has not been able to return to his pre-accident job or take up any other job.

98.  The Plaintiff was jointly examined by Dr Li Cheuk Wing (Plaintiff’s expert) and Dr Wong Chung Kwong (Defendants’ expert) on 29 January 2018. A Joint Psychiatric Expert Report was made available on 29 March 2018 (“JPER”). A supplemental JPER was prepared by the experts on 22 June 2019 (“Supp JPER”).

99.  The evidence was disputed. Pursuant to §3 of the Order of this Court made at the pre-trial review on 3 September 2021:

“The parties shall call their respective psychiatric experts, namely Dr. Li Cheuk Wing (for the Plaintiff) and Dr. Wong Chung Kwong, JP (for the 1^st and 2^nd Defendants), to give oral evidence and be cross-examined at trial. The Plaintiff has to secure attendance of Dr. Li Cheuk Wing for trial on either 29 or 30 December 2021.”

100.  The Plaintiff did not call Dr Li to give evidence, nor did the Plaintiff turn up on the day Dr CK Wong appeared. As the Plaintiff could not remember what was in the expert report, he would not have been able to conduct the cross-examination anyway.

101.  Without allowing the Defendants an opportunity to cross-examine Dr Li, Dr Li’s expert evidence should be excluded from the evidence altogether. In any case, for the reasons given below, Dr CK Wong’s expert evidence should be preferred to Dr Li’s.

102.  In summary, the views of the 2 Doctors were as follows:

(1) It was agreed that the Plaintiff did not suffer permanent mental impairment from the 1^st Accident.

(2) It was agreed that the Plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood as a result of the 2^nd Accident. He should be given 3 months’ sick leave on psychiatric grounds (4/496/§114).

(3) Dr Li opined that the Plaintiff still has an active case of adjustment disorder and required further treatment. Dr CK Wong opined that the Plaintiff had fully recovered by 29 August 2014 and has since then been a case of abnormal sick role; Dr CK Wong advised against further treatment (4/496/§115 & 118).

(4) Dr CK Wong opined that the Plaintiff had observable huge exaggeration of symptoms and feigning. Based on his treating psychiatrist’s records, the Plaintiff had only suffered from mild psychiatric morbidity before he had the chance to receive psychiatric treatment. He responded very well to psychiatric treatment. There were no physical or psychiatric explanations to account for his claim of persistent and disabling physical symptoms. Dr Li disagreed with the view of feigning for the reason that the Plaintiff sought help and medical care from various medical practitioners over the years.

(5) Dr Li opined that the Plaintiff suffered from loss of earning capacity of 5%. Dr CK Wong opined that it was nil and that the Plaintiff had no impairment of functioning and loss of earning capacity on psychiatric grounds.

(6) Dr CK Wong suggested that there be a quick settlement of this litigation or trial as soon as possible. An important factor that maintained the exaggeration of symptoms was this on-going litigation.

103.  I prefer Dr CK Wong’s opinion, for the following reasons:

(1) Dr CK Wong’s analyses of the mental state examination of the Plaintiff’s behaviour was more comprehensive, taking into account the fact that the 2^nd Accident did not involve his brain.

(2) Dr CK Wong analyzed the surveillance evidence in detail, in support of his conclusion that the Plaintiff was not suffering from the alleged pain but was feigning symptoms.

(3) Dr CK Wong made reference to records of the Plaintiff’s treating psychiatric to trace the trend of the Plaintiff’s psychiatric state and his response to treatment.

(4) Dr CK Wong took into account the JROM to support his conclusion that the Plaintiff was feigning symptoms of pain.

(5) Overall, Dr CK Wong relied more on objective evidence than the Plaintiff’s personal account.

104.  On the other hand, without disrespect, Dr Li’s opinion is less preferable for the following reasons:

(1) Dr Li stated that the video clips were cross-sectional in nature. It was not known how much editing was done in preparation of those video clips and whether there had been selection of clips (4/468/§33). Such comments were speculative, especially since the Plaintiff (whilst legally represented) had agreed to adduce the video clips without the need to call the makers. In fact, at the trial, the Plaintiff confirmed in the witness box the contents of the video clips to be true.

(2) Dr Li considered that assessing mental state from the video images was even more difficult because psychiatric symptoms were internal states not easily detectable by detached observers. People with mild to moderate psychiatric conditions still had the capacity to function socially. Therefore, they could appear outwardly unremarkable, particularly in public. However, Dr CK Wong was able to do the assessment based on the video images. Dr Li has not offered weighty response to rebut Dr CK Wong’s opinion.

(3) Dr Li seemed to have made a number of assumptions to reach the conclusion that the Plaintiff was not thought to be malingering (4/468-469/§34). For example:

(a) He opined that the Plaintiff was likely to simply accept the diagnosis of decompression sickness and not realize that his symptoms were not typical, merely because the Plaintiff was a person with limited medical knowledge.

(b) He stated that the Plaintiff’s presentation of somatic symptoms could be due to “cultural variations”, without stating the medical basis for such a view. As Mr Wong submits, if this view is correct, it is almost impossible to ascertain whether a person is malingering, or only expressing distress in his/her own cultural way.

(c) While suggesting that depressed mood was associated with increased sensitivity to pain and poorer outcome of many medical illness, Dr Li’s opinion was a general statement made without reference to the Plaintiff’s actual performance during the mental examination. Dr Li has not rebutted Dr CK Wong’s direct observation that the Plaintiff was not shown to be depressed in mood during the joint assessment or in the records of the treating psychiatrist.

(3) Dr Li suggested that the Plaintiff’s current psychiatric medications, in particular the lorazepam, may affect his concentration and short-term memory. However, there was no record showing that the Plaintiff had complained of suffering from any side-effect from psychiatric medications. To the contrary, according to Dr CK Wong, the Plaintiff responded well to psychiatric treatment. Besides, if the Plaintiff did suffer impairment on his concentration and short-term memory, Dr Li has not answered Dr CK Wong’s criticism as to why the Plaintiff showed no difficulty in responding to the experts’ questions during the assessment but suddenly showed difficulty in performing the cognitive tests.

(4) In respect of the Plaintiff’s alleged visual hallucination of seeing a running child, Dr CK Wong expressly opined that it was feigned as the Plaintiff had no other psychotic symptoms. In response, Dr Li explained that patients with certain personality disorders may also have histories of hallucinations. Be that as it may, there was no evidence that the Plaintiff had suffered from any personality disorders.

105.  In the Supp JPER, the experts were asked to comment whether the Plaintiff’s pain could be otherwise explained by chronic pain syndrome.

106.  Dr Li said that it could, as the Plaintiff had reported multiple pain symptoms and they have become chronic and consistent over time. As the symptoms were mild in nature, muscle wasting might not always be present. Referring to the JROM, Dr Li stated that if the Plaintiff’s pain symptoms were genuine but were not typical of decompression syndrome, then it was reasonable to diagnose him with chronic pain syndrome. Pain affected his mood and his stress-related mood condition affected his experience of pain. The psychological factors that affect his mood, such as avoidance and unrealistic expectations, also affected his physical recovery (4/509/§§3-4). This opinion was based on hypothesis.

107.  Dr CK Wong pointed out that even if the pain allegedly suffered was psychogenic in origin, it should have been consistent and persistent, when objective signs such as muscle wasting and contracture of joints would be clearly observable (4/501/§8). However, the Plaintiff’s multiple joint pain was not consistent (as the Plaintiff was observed to behave very differently under surveillance compared to the time at the joint examination). Nor was it persistent (as there was no evidence of physical sequelae of genuine severe chronic pain such as muscle wasting or contracture of joints). In short, there was no cogent evidence showing that the Plaintiff’s pain could be explained by reason of chronic pain syndrome.

108.  Again I prefer the opinion of Dr CK Wong as being based more on objective evidence than the personal accounts of the Plaintiff.

109.  Placing full weight on Dr CK Wong’s report, I find that there were abundant indicators to suggest that the Plaintiff was feigning his symptoms. The Plaintiff’s complaints of multiple pain could not be explained by physical pathology or psychiatric ground. The 2^nd Accident at most only caused him loss of consciousness.

K(3). Summary of the injuries arising out of the 2^nd Accident

110.  It can be seen from the analyses above that the Plaintiff’s evidence was littered with inconsistencies and contradicted by indisputable documentary evidence or the video clips. His lack of memory was always used as a convenient excuse in the witness box whenever he could not explain contemporaneous records.

111.  The JROM made it clear that even if the hypothesis of decompression sickness was true, the experts could not assign a percentage of permanent impairment for whole body. While the experts did suggest that the Plaintiff’s alleged multiple joint pain might amount to 2% impairment of the whole person, they preferred the impairment to be assessed by the psychiatrist.

112.  Psychiatrically, I find that the Plaintiff at most suffered from adjustment disorder with mixed depressed mood and anxiety as a result of the 2^nd Accident, with maximal medical improvement on psychiatric ground on about 29 August 2014, 3 months after he had received psychiatric treatment. There was no permanent impairment of functioning.

L. ASSESSMENT OF DAMAGES

113.  In respect of the 1^st Accident, the damages are limited. PSLA would be $10,000. Although the psychiatric experts say that 2 weeks of sick leave was reasonable, the Plaintiff had actually returned to work on the following day. Accordingly, no damages should be awarded for loss of earnings. Nor were there special damages or evidence to support the need for future medical treatment.

114.  In respect of the 2^nd Accident, (on the basis that my finding on liability is wrong), I deal with quantum briefly for the sake of completeness.

115.  The Plaintiff’s claim of $600,000 for PSLA was inflated. For the loss of consciousness and hospitalization for 5 days, the PSLA should not exceed $100,000: Chan Kiu Yeung v Mak Shung Wai [2021] HKDC 598 (PSLA at $95,000); Chung Yin Ting v Chan Miranda [2019] HKCFI 270 (PSLA at $100,000); Wong Ka Wai Johnny v Lee Man Wai (unreported, DCPI 145/2010, 16 January 2012) (PSLA at $100,000). These are all authorities concerning physical injuries with mild psychiatric diagnoses.

116.  The Plaintiff alleges that his monthly earnings were approximately $32,000 and the Defendants do not dispute this.

117.  The Plaintiff avers that he is unable to return to pre-accident employment as a tunnel worker. He claims:

(1) Full loss of earnings and MPF from 1 September 2013 to 31 August 2016, for a total of 3 years.

(2) Partial loss of earnings and MPF from 1 September 2016 until the date of trial, adopting a multiplicand of $9,900 assuming that he did manage to secure a job as a security guard.

(3) Post-trial loss of earnings and MPF, adopting a multiplicand of $10,000 and a post-trial multiplier of 10.83.

(4) Loss of earning capacity of $100,000.

118.  Together with the claim of special damages of $127,410, and the claim for costs of future treatments of $990,100, the Plaintiff’s total claim adds up to $9.46 million plus interest.

119.  The alleged pain and psychiatric injury were not proven. If the Defendants are liable for loss of earnings, it should at most be 3 months’ sick leave in respect of the mild psychiatric illness. The Plaintiff could have returned to his pre-accident work afterwards. The Defendants’ project at the Site did not finish until about December 2010. The loss of earnings should thus be:

[$32,000 + $1,500 (MPF)] x 3 months = $100,500.

120.  The Plaintiff confirmed in the witness box that he has not worked after the 2^nd Accident. His bank account, however, shows the following deposits between 2014 and 2016:

Date	Amount	Ref.
8 Feb 2014	$8,000 (Cash)	7/1027
11 Feb 2014	$10,000 (Cash)	7/1027
7 Mar 2014	$700 (Cash)	7/1026
7 Mar 2014	$3,800 (Cash)	7/1026
13 Mar 2014	$2,700 (Cash)	7/1026
18 Mar 2014	$2,000 (Cash)	7/1026
30 Jun 2015	$6,030 (Cheque)	7/1010
3 Aug 2016	$5,000 (Transfer)	7/995
23 Aug 2016	$26,567.04 (Cheque)	7/995
Total:	$64,797.04

121.  The Plaintiff initially said that the 2^nd deposit above was lent by his friend. He later said it was “sick leave salary”. When he was told that it was not sick leave salary, he said he had forgotten where the money came from. He said he might be able to find some documentary proof. It was pointed out to him that they were not loans because at the time of some deposits, he had a credit balance of over $15,000. He claimed to have received $10,000 from the government (but in fact that did not form part of the above deposits). He also claimed to have received money from a Christian Association. In the end he was not able to state where each deposit came from.

122.  The Court has asked him to provide documents in support of the deposits at the end of the first day of trial, telling him that it was a serious matter and could affect his social security.

123.  On day 2, save for the amount of $16,318.38 relating to MPF (which evidence was accepted), the rest of the further documents that the Plaintiff brought to Court could not explain the above deposits. It is questionable whether a Christian Association would have given money to a person who had savings. The last deposit of $26,567.04 was in odd rather than round figure suggesting that it was unlikely to have been a loan or donation.

124.  Mayer Brown, solicitors for the Defendants, gave to the Plaintiff a list of the above deposits that the Plaintiff was required to explain and it was translated by the Nepali interpreter. The Plaintiff did not turn up for trial on day 3. The deposits remained unexplained.

125.  I hold serious doubts as to whether the Plaintiff had income after the 2^nd Accident. In any case, he was not truthful or reliable. Adverse inference should be drawn against him and those deposits should be treated as income after the 2^nd Accident, and deducted from the damages recoverable.

126.  In respect of loss of earning capacity, there was no real risk that the Plaintiff would lose his job or suffer disadvantage in the labour market. No award would be made.

127.  In respect of special damages, as seen from the summary of medical expenses up to 21 November 2017, a total sum of $94,594.40 was incurred as medical expenses. The bulk of them were receipts issued by Dr David Ip (Asia Medical Centre). I query the need to visit Dr David Ip every month to obtain sick leave and I find that to be unjustified.

128.  Indeed, as a recipient of CSSR, a waiver has been granted to the Plaintiff for medical charges incurred for medical services of the Hospital Authority. The documents available showed that the waiver was at least valid from 30 September 2014 to 29 March 2015, 19 February 2015 to 31 May 2016 and 25 February 2017 to 31 May 2018.

129.  Most of the medical attendances were related to his multiple pain. As the Plaintiff was unable to prove the pain or its causation, the Defendants should not be responsible for those medical expenses.

130.  The Defendants’ suggestion of $20,000 for special damages, is generous in the light of the above analyses.

131.  The Plaintiff claims a sum up to $990,100 for future medical expenses for consulting a wide range of specialists, including pain management, rehabilitation specialist, psychiatrist, occupational therapist, pain physician, case manager and neurologist. Given Dr CK Wong’s evidence, I make no award for future medical expenses.

Summary on quantum of damages

132.  For the 1^st Accident only:

	$
PSLA	10,000.00
(Less: EC payment)	(101,200.00)
(Less: Interim payment)	(200,000.00)
Total	Nil

133.  For the 2^nd Accident:

		$
(1)	PSLA	150,000.00
(2)	Pre-trial loss of earnings and MPF	100,500.00
(3)	Post-trial loss of earnings and MPF	Nil
(4)	Loss of earning capacity	Nil
(5)	Special Damages	20,000.00
(6)	Future Medical Expenses	Nil
	Sub-total	270,500.00
	(Less: EC payment)	(101,200.00)
	(Less: Interim payment)	(200,000.00)
	(Less: income after 2nd Accident)	(64,797.04)
	Total	Nil

134.  Given that the Plaintiff has received more EC and interim payment than the possible damages he can recover, his claim is dismissed.

M. COSTS

135.  Costs should follow the event and be to the Defendants.

136.  The following facts, taken individually or together, show egregious exaggeration of the Plaintiff’s symptoms.

(1) To have medical consultation across 17 disciplines, across several districts of Hong Kong and even in Mainland China, in itself would have aroused anyone’s query when the initial “injury” from the 2^nd Accident was just fainting. Some of the consultations, like for teeth, brain, eye, radiology, simply could not have any connection with the 2^nd Accident.

(2) The first video clip as far back as in 2014 (a year after the 2^nd Accident) that his claimed pain or difficulty in walking was exaggerated. The other videos were consistently so.

(3) The JROM dated 18 October 2017 was worded in a way that the probable cause of the 2^nd Accident was not known. The experts have already said that the Plaintiff’s injuries might be psychological.

(4) In the JPER Dr CK Wong had already indicated that there should be quick settlement or trial to curb the Plaintiff’s exaggeration of symptoms. Even if the Plaintiff/his lawyers would not accept that as decisive, that would have been a strong indicator that the claim was not entirely in good faith.

137.  The Plaintiff’s feigning of symptoms even occurred during the trial – using elbow crutches for no valid cause, pretending to have hearing disability and hospitalization for no valid cause.

138.  I have no hesitation in finding that the Plaintiff was dishonest in pursuing this claim for $9 million, which he had no prospect of establishing. I agree with Mr Wong that had the Plaintiff brought a genuine claim, this case would have been resolved much earlier with little legal costs.

139.  A dishonest plaintiff who made up a personal injuries claim should be penalized by costs on indemnity basis: Pak Siu Hin Simon v JV Fitness Ltd [2017] 6 HKC 110, at §10, Au-Yeung J; Li Ming Tak v Hong Kong Airport Services Limited (unreported, HCPI 860/2009, 19 November 2014) at §122, Zervos J (as he then was). I so order.

140.  The Plaintiff has been legally aided up to 22 December 2020. Given the facts in paragraph 136 above, it would have been apparent to a legal adviser that the Plaintiff might be exaggerating his claim and that the matter should be brought to the attention of the Director of Legal Aid earlier.

141.  Further, the paper work on the solicitors’ level in this case was equally exaggerating. For the 2 Accidents which were by no means complicated, Burke & Co came up with a 45-page statement of claim. It would be a waste of the Court’s time to set out each of the paragraphs which were useless. By way of example, §3 set out in detail a whole host of regulations many of which were not relevant; for no apparent reason, §(36) set out a 6-page table of each and every day on which the Plaintiff worked in compressed air; §(49) on page 20 set out each item of medicine prescribed to the Plaintiff. The reasonable length of statement of claim for this case could hardly exceed 20 pages.

142.  The P-1^st was a 76-page document with 28 pages of introductory matters before the 1^st Accident was described. Most of the introductory matters were irrelevant to the claim. The whole document was so lengthy as to lose focus. It was to throw just everything into the kitchen sink, relevant or irrelevant.

143.  Further, P-1^st has annexed to it various lengthy tables with unnecessary details. One was a totally useless table of legal claims of other workers of the Defendants. In my view, the reasonable length of the witness statement should hardly exceed 35 pages, inclusive of the tables.

144.  In comparison, Mr Wong’s opening submission was of 36 pages. It was objective and fair in summarizing the Plaintiff’s case, and did not lose focus of the real circumstances of the Accidents and the issues.

145.  I invite the taxing master to take into account the 4 preceding paragraphs when it comes to assessing the solicitors’ drafting and related costs. A copy of this judgment should be given to Burke & Co in case it wants to make representation on why it should not be disallowed the costs of drafting before the costs order below is made absolute.

146.  I therefore make an order nisi that the Plaintiff should bear the Defendant’s costs on indemnity basis with certificates for 2 counsel.

N. COMPREHENSIVE SOCIAL SECURITY ASSISTANCE

147.  I draw this judgment to the attention of the Director of Social Welfare, in particular paragraphs 120-125, which indicated that the Plaintiff might have been working whilst receiving social assistance.

O. CONCLUSION

148.  I dismiss the claim. On a nisi basis, the Plaintiff should bear the Defendant’s costs on indemnity basis with certificates for 2 counsel.

149.  A copy of this judgment shall be given by my clerk to Burke & Co, who will be at liberty to make representation as regards paragraph 145 within 14 days from the handing down of this judgment.

150.  I thank Mr Simon Wong and Mr Jacky Ho for their assistance.