SO PO KAM v. CHEUNG HIU WANG trading as HO KONG ENGINEERING COMPANY AND ANOTHER

DCPI 3335/2021

[2024] HKDC 1218

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3335 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This case involves an assessment of damages in respect of the personal injury claim of the Plaintiff (“P”) arising from an accident in the course of his employment with the 1^st Defendant (“D1”) in a pump room situated at the rooftop of Rockson Mansion, 25-35 Water Street, Hong Kong (“the Site”).

2.  Interlocutory Judgment on liability was entered against the 2^nd Defendant (“D2”) on 30 November 2022. D1 did not take part in the present proceedings and interlocutory judgment was entered against D1 on 26 July 2023.

3.  P claimed employees’ compensation against D1 and D2 in DCEC 2186/2020 in which P received HK$210,000 from D2 as full and final settlement.

BACKGROUND

4.  At all material times, D2 was the principal / main contractor in respect of a construction site situated at the Site and D1 was a sub-contractor to D2.

5.  P was employed by D1 as a technician of fire safety work at the Site.

6.  On 15 November 2018, P was required to install pipes at a pump room at the Site. In the course of moving out a box of tools from the pump room, P sprained his back (“the Accident”).

7.  At the time of the Accident, P was 47 years old. P is now 53 years old.

INJURIES AND TREATMENT

8.  After the Accident, P attended the Accident & Emergency Department of Queen Mary Hospital (“QMH”). He complained of back sprain after lifting heavy objects. He experienced low back pain with radiation to left leg afterwards.

9.  According to Dr Lau Hung Yan of QMH, upon physical examination, no neurology deficit was detected. His left side low back pain and paraspinal muscle spasm over right cervical region were noted. X-ray of cervical and lumbosacral spine were unremarkable. He was discharged with oral analgesics, and was referred to physiotherapy.

10.  P started physiotherapy treatment at Prince of Wales Hospital (“PWH”) on 18.1.2019. He complained of slower back pain at numeric pain rating scale (“NPRS”) 5-6 out of 10. His back flexion was above knee, with severe pain. His back extension was 1/3 the normal range with severe pain. Left / right side flexion was above knee with pain, left / right rotation was ½ the normal range with pain. There was tenderness over lower lumbar. Straight leg raising (“SLR”) test was 60 degrees with pain.

11.  Having received around 3.5 months of physiotherapy treatment, P, on 3.5.2019, reported slightly decreased lower back (NPRS 4/10). His back flexion was above knee, with severe pain. His back extension was 1/3 the normal range with severe pain. Left / right side flexion was above knee with pain, left / right rotation was ½ the normal range with pain.

12.  On 19.8.2019, P attended Ma On Shan Family Medicine Centre (“MOSFMC”) and reported that he was still having physiotherapy, and when doing home exercise, there was increase in back pain, causing radiating pain and numbness down to bilateral big toes. He felt painful on walking and on prolonged sitting. There was tenderness over lower lumbar spine and paraspinal muscles both sides. SLR of both legs were 30 degrees, with increased pain and parenthesis down to bilateral big toes.

13.  On 6.7.2020, P attended the Orthopaedic Clinic of PWH and reported that help from physiotherapy treatment was minimal. He complained of bilateral lower limb numbness, and pain on prolonged walking of 20 minutes. He continued to attend PWH from time to time.

14.  On 30.8.2021, P walked with a stick. His main complaint was the low back pain with radiation to bilateral thighs. There was mild bilateral foot numbness. His walking tolerance was 6 to 10 minutes. Physical examination revealed mild tenderness in the lower lumbar spine region. L5 and S1 light touch sensation was mildly reduced.

15.  P was granted intermittent sick leave from 15.11.2018 to 30.8.2021, a total of 33 months and 16 days.

EXAMINATION BY ORTHOPAEDIC EXPERTS

16.  On 21.1.2022, P was examined by Dr Tio Man Kwan Peter (“Dr Tio”), P’s doctor.

17.  On 3.2.2023, P was examined by Dr Chan Wai Fu Anthony (“Dr Chan”), D’s doctor.

18.  On 6.4.2023, P was jointly examined by both Dr Tio and Dr Chan. Their findings were reduced in a joint medical report dated 24.5.2023 (“JME”). Both parties have agreed that the JME be adduced as evidence without calling the two doctors.

19.  Regarding diagnosis and causation, both Dr Tio and Dr Chan were of the view that the Accident caused soft tissue back sprain injury.

20.  Both doctors agreed that P had pre-existing degenerative changes on his lumbar spine.

21.  Regarding treatment, both Dr Tio and Dr Chan viewed that P had received appropriate treatment and reached maximal medical improvement.

22.  On prognosis, the doctors differed in their views. Dr Chan opined that P has received very well, if not completely, from the minor soft tissue injury to his back. Dr Tio however opined that the prognosis was fair with residual pain over his lower back.

23.  Different opinions on P’s prognosis also led to different opinions on P’s ability to return to his pre-accident job. Dr Chan opined that P should be able to resume his pre-injury work in full capacity. He further opined that the pain from degenerative spine would render P less fit to take up manual lifting job even if the Accident did not happen. He opined that jobs like car park attendant, security guard or restaurant worker were suitable. Dr Tio opined that P should be able to resume his pre-injury work as technician of fire safety worker with reduction in work capacity chiefly on frequent heavy lifting and carrying, prolonged walking / standing or extreme range of movements of his lower back.

24.  Dr Chan assessed whole person impairment at 2%, and that 0.2% was caused by the Accident. Dr Tio assessed loss of earning capacity at 2%.

25.  Regarding P’s sick leave, Dr Chan opined that it should be around 1-2 months. Dr Tio endorsed all the sick leave granted by P’s treating doctors, i.e. 33.5 months.

DISCUSSION ON QUANTUM

Pain, Suffering and Loss of Amenities

26.  P claimed HK$200,000 under this head. On the other hand, D2 submitted that the PSLA award should be no more than HK$67,000 as a starting point. Relying on Dr Chan’s opinion that the pre-existing degenerative spine played a major role of P’s back symptoms, D2 further discounted that the said HK$67,000 by 90% and argued that the appropriate sum under this head should be HK$6,700.

27.  At present, P still complained of intermittent back pain radiated to both lower limbs. The pain was pin and needles in character over both foot and burning in character over both thighs. The pain intensity is 6-7/10 in VAS. The pain is more severe when sitting for more than 10 minutes and walking for more than 10-20 minutes. The pain will improve after stretching his back and stopped for rest. P also complained of both foot numbness associated with pain. He can only carry object weighed 1-2 catties for 4-5 minutes.

28.  As stated hereinabove, both Dr Tio and Dr Chan agreed that the Accident caused soft tissue back sprain injury to P. And, both doctors agreed that P had pre-existing degenerative changes on his lumbar spine.

29.   Dr Chan, judging from the degree of degeneration and his age, opined that it was more likely than not that P would have on and off back pain arising from the degenerative spine if he did not meet with the minor back injury resulted from the Accident. He considered that P’s present condition likely fell into category 3 of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, ie the present condition would have certainly occurred at some stage in any event.

30.  Dr Tio however opined the injury sustained in the Accident likely further aggravated P’s pre-existing back pain. The pre-existing condition should belong to a state between category 2 to 3 of Chan Kam Hoi case. According to category 2, there was a strong possibility that some other event or natural progression of the condition would have brought about the present condition. Dr Tio further opined that the Accident might have advanced the symptoms or signs by an estimated duration of 5 years.

31.  Apart from the medical evidence, D2 also relied on P’s evidence under cross-examination. It was suggested to P that he lied in the Statement of Claim and his witness statement because he grossly exaggerated the weight of the box which he lifted. It is admittedly plain that P was unable to reconcile the discrepancies. P however submitted that this had very limited impact on P’s case since it only went to P’s general credibility. It may carry more significance if the issue is related to liability, for instance whether the Accident did occur.

32.  Since liability has been admitted, P submitted that P’s general credibility could not possibly affect his case on earnings which would be proved by the contemporaneous documents. Likewise, P’s case on injuries was supported by the medical records.

33.  I agree that P’s general credibility may not carry too much significance on earnings but it may carry some weight in pain and sufferings although I also agree that this head by and large relies on medical evidence.

34.  Under this head, both parties have referred this Court to various authorities and I found the followings are applicable in this case:

(a) In Gurung Devchandra v Pacific Construction (HK) Co Ltd & Others (HCPI 138/2011, unreported, 14 July 2014), the plaintiff injured his back while lifting a steel beam weighing about 40-50 kg at work. The court found that the plaintiff should have been able to return to work 9 months after the accident. However, the plaintiff was not able to take part in high level Taekwondo activities which he used to practise before the accident. The court awarded $160,000 as the PSLA award (which is around $192,903 at present);

(b) In Ng Ning Fu v Leader Engineering & Construction Limited & Another (HCPI 173/2015, unrep, 12.10.2017), the plaintiff fell on the ground and was injured. The expert commented that the plaintiff suffered from back sprain, the degeneration and disc protrusion at L4/5 and L5/S1 were pre-existing and probably asymptomatic before the accident, it would not be suitable for the plaintiff to work as a heavy duty construction site worker, but he should be able to cope with lighter duty jobs. The PSLA award was $220,000 (which is around $247,355 at present);

(c) In Haider Awais v Intrafor Hong Kong Ltd [2022] HKCFI 3043, the plaintiff squatted and bent forward while holding the drill with both hands, when suddenly and without warning he felt pain in his lower back. Expert found 1% whole person impairment and 1% loss of earning capacity. $80,000 was assessed under this head (which is around $82,235 at present).

35.  D2 further contended that this head of claim should subject to a discount of 90% based on P’s pre-existing condition and Dr Chan’s opinion that the pre-existing condition degenerative spine played a major role of P’s back symptom and would only apportion not more than 10% to the injury as a result of the Accident.

36.  In response to this contention, P submitted that both experts agreed that the Accident caused soft tissue injury at back and there was no suggestion by the experts that soft tissue injury would further compress the intervertebral disc, or that as a result of soft tissue in jury, P’s lumbar spine nerve root would be impinged. As the soft tissue injury would not cause any further structural injury to the lumbar spine, as a matter of principle, no discount should be applied.

37.  Moreover, P, relying on the thin skull principle, submitted that he, due to his pre-existing condition, was not a normal and healthy adult in the sense that the same traumatic event could cause more serious injury on him, and that it would take him longer time to recover. This Court is also of the view that the wrongdoer must take his victim as he finds him so that the wrongdoer remains liable even though the severity or extent of the damage has been increased due to the victim’s pre-existing weakness or susceptibility to harm.

38.  Having considered the evidence in this case including but not limited to P’s general credibility, I find that P’s conditions are more serious to the plaintiff in Haider Awais but less serious to that in Ng Ning Fu in which the court has considered the pre-existing condition in making the PSLA award. This Court is therefore of the view that a sum of HK$100,000 would be appropriate under this head.

PRE-TRIAL LOSS OF EARNINGS

Monthly Earnings

39.  At the time of the Accident, P was working as a technician with D1. There was no dispute that P’s daily wage was HK$1,400 as at November 2018. The dispute was about the number of P’s working days per month. P claimed that he worked 26 days per month and thus his average monthly earnings was about HK$36,400.

40.  P’s calculation was based on his declaration with the Labour Department dated 18.11.2019, Form 2 dated 10.12.2018 and the contemporaneous WhatsApp messages between P and D1 (“the said WhatsApp messages”).

41.  D2 opposed to P’s calculation by arguing that D2 had made no admission to P’s documents submitted to the Labour Department against D1 and that D1’s document went nowhere here nor there since D1 did not participate in the present proceedings and was not available to be cross-examined at trial.

42.  P’s case on monthly earnings was largely based on the said WhatsApp messages, and the accuracy of which was not challenged by D2 in their cross-examination of P.

43.  P confirmed in evidence that at the material times he sent the said WhatsApp messages to D1 for putting on record the number of shifts he worked for that particular half month and the amount of wages D1 owed to him. As revealed in the said WhatsApp messages, D1 has never disputed or challenged the accuracy of the figures stated therein. And, D2’s only witness Wong Ka Fai, the director of D2, agreed that he was not in a position to admit or challenge the contents in the said WhatsApp messages.

44.  P was cross-examined on the inconsistencies between his claim forms filed 1.11.2018 and 3.12.2018 and the contents of his witness statements and he did not give adequate explanations for the inconsistencies. I however agreed with P’s submission that P’s current evidence could not change the fact that the said WhatsApp messages were contemporaneous and were not challenged by D2 at trial.

45.  Applying Hui Cheung Fai v Daiwa Development Ltd (HCA1734/2009, unrep, 8.4.2014) in which it was held that contemporaneous written documents and documents which came into existence before the problems emerged were of the greatest importance in assessing credibility, I accept that P’s evidence on and the accuracy of the WhatsApp messages and therefore hold that P’s average monthly earnings was about HK$36,400 at the material times.

Sick Leave

46.  P was granted intermittent sick leave from 15.11.2018 to 30.8.2021, a total of 33.5 months and Dr Tio endorsed all the sick leave granted by the treating doctors.

47.  It is not disputed that P started his physiotherapy treatment at PWH on 18.1.2019, ie 2 months after the Accident.

48.  On one hand, Dr Chan disagreed with Dr Tio and opined that P’s sick leave should be around 1-2 months. On the other hand, Dr Chan agreed that P had received appropriate treatment in this case. With respect, it is not easy to reconcile the above two opinions from Dr Chan.

49.  P’s treatment must have included the physiotherapy treatment at PWH starting on 18.1.2019. However, by the time the said physiotherapy treatment at PWH commenced, 2 months (which is the appropriate length of sick leave according to Dr Chan) has been lapsed since the date of the Accident. In other words, the said treatment only started when the length of sick leave recommended by Dr Chan had expired. But, Dr Chan has agreed that P had received appropriate treatment which as stated in the above must have included the PWH physiotherapy. I am therefore of the view that 2 months is not an appropriate length of sick leave. Having said that, this Court do not think that 33.5-month sick leave is appropriate either.

50.  Regarding how one may treat the sick leave certificates issued by doctors, the judgment in Gurung Kamala v Hong Wei Limited (unreported, DCPI 1660/2010, 26.3.2012) provides an insightful observation that:-

“82. The same argument applies for Sick Leave certificates. In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, it was held that “Sick leave certificates are no more than a piece of evidence that has to be evaluated in light of all the available evidence including medical evidence before the court.”

83. The court therefore does not agree that previous consistent medical documentation of complaints of a patient should, by itself, necessarily supports that the complaints were genuine and organic. If a patient has been exaggerating the symptoms, he/she can certainly do so in a consistent manner.

84. In other words, just like sick leave certificates, a doctor’s record of a patient’s subjective complaints is also no more than a piece of evidence that has to be evaluated in light of all the available evidence before the court.”

51.  Applying Gurung Kamala (supra), this Court would treat P’s sick leave certificates of 33.5 months as no more than a piece of evidence that has to be evaluated in light of all the available evidence including medical evidence before the court.

52.  Obviously, Dr Tio opined that 33.5 months was appropriate because he accepted all the sick leave certificates which were issued by registered medical practitioners of different clinics after individual assessments. It could be the case that due to the trust between doctors and patients, judges are in a better position to scrutinize the subjective expression of one’s pain against other objective medical evidence.

53.  In this regard, Dr Chan observed that there was no objective findings to substantiate P’s diffuse and chronic back pain. Moreover, in absence of genuine nerve root entrapment or compression demonstrated, P’s back pain and both feet’s numbness could not be explained by any significant back pathology. Dr Chan opined that the weakness in both lower limbs was likely due to voluntary underperformance on the part of P. Also, the different straight leg raising angle measured in different body position and normal sensation and reflexes and no objective muscle wasting over both lower limbs suggested symptom magnification. Dr Chan therefore opined that P was magnifying his disability.

54.  Apart from Dr Chan, Dr Kwok Kin On of Department of Orthopaedics & Traumatology at PWH wrote in the medical report dated 6.10.2020 that there was no local tenderness. Straight leg raising were normal both sides. There was no motor or sensory deficit. The reflexes were normal. X ray did not show any major trauma. Dr Kwok reported that P’s back pain associated with strong psychosocial element and P strongly requested sick leave till follow up.

55.  P had pre-existing conditions on his lumbar spine. Dr Chan opined that P’s condition belonged to category 3 as defined in Chan Kam Hoi. Dr Tio opined that P’s condition should belong to a state between category 2 to 3. He further opined that the Accident might have advanced the symptoms or signs by an estimated duration of 5 years.

56.  According to the medical report compiled by Dr Tse Hang Yu Vanessa, Department of Family Medicine of New Territories East Cluster dated 6.10.2020, P did not seek sick leave for almost 4 months from 5.4.2019 to 26.7.2019. I gather that P was not disturbed by the physical disability caused by the Accident and am therefore minded to find that P’s condition had recovered satisfactorily from the Accident in April 2019, and also that a sick leave period of 5 months from the date of Accident would be reasonable and so allowed.

57.  In light of the above, this Court finds that a sick leave period of 5 months would be reasonable. The pre-trial loss of earning is HK$36,400 x 5 months = HK$182,000.

FUTURE LOSS OF EARNINGS

58.  P claimed HK$324,576 for future loss of earnings.

59.  Despite different opinions on length of P’s sick leave, both Dr Tio and Dr Chan agreed that P should be able to resume his pre-accident job.

60.  Dr Chan opined that P should be able to resume is pre-injury work in full capacity and P was expected to have mild residual disability from the back injury due to the Accident.

61.  Dr Tio opined that P orthopaedically should be able to resume his pre-injury work as technician of fire safety work with reduction in work capacity chiefly on frequent heavy lifting and carrying, prolonged walking/standing or extreme range of movements of his lower back.

62.  P submitted that even if he could resume his pre-accident job, he could not work as much as before given his disability. Thus, P claimed partial loss of earning of HK$2,800 per month, being 2 days of earnings.

63.  P also submitted that he should be entitled to partial loss of earnings of HK$2,800 from the notional date of judgment (assuming it to be 7 August 2024), ie 53 years old and 230 days, until he retires at 65 years old. The multiplier as at the notional date of judgment should be 9.66.

64.  As mentioned in the above, both Dr Chan and Dr Tio agreed that P had pre-existing condition. Dr Chan opined that P’s condition fell into category 3 of Chan Kam Hoi case and Dr Tio opined that the injury sustained in the Accident likely further aggravated P’s pre-existing back pain. The pre-existing condition should belong to a state between category 2 to 3 of Chan Kam Hoi case.

65.  Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. For future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, especially when a plaintiff’s working life is likely to be limited by a pre-existing condition.

(see Yu Wai Kan v Law Cho Tai, HCPI 62/2010 (unreported, 11 May 2011), para 71)

66.  P had back injury in 1997 and he took sick leave for 2-3 years for recovery. He also had another left shoulder injury with dislocation in 2014/2015 and he took sick leave for 1 year. Having considered the said two injuries sustained by P and comparatively long sick leave taken by P, this Court therefore would adopt a reduced multiplier 7 for calculation under this head.

67.  P’s future loss of earnings then becomes HK$2,800 x 12 x 7 = HK$235,200.

LOSS OF EARNING CAPACITY

68.  Dr Tio recommended 2% loss of earning capacity purely for the back injury caused by the Accident.

69.  Dr Chan opined that 0.2% loss of earning capacity in relation to the Accident.

70.  Citing Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 in which it was held that if there is a “substantial” or “real” risk that a plaintiff would lose his present job at some time before the estimated end of his working life, he thereby suffered the risk of financial damage, P claimed a sum of HK$50,000 under this head and it is so allowed.

SPECIAL DAMAGES

71.  P claimed HK$9,925 medical expenses, and HK$9,100 travelling expenses.

72.  P said given the length of the sick leave, the claim under this head was reasonable and should be allowed in full.

73.  The legal principles governing the award under this head is the reasonable need of the injured person created by the injury. The Court would normally allow all medical expenses with documentary support. In the present case, since this court only allows 5-month sick leave for P, at least half of the incurred medical expenses and travelling expenses for 33.5 months will have to be cut. Taking a broad-bush approach, this Court would allow HK$10,000 under this head.

SUMMARY OF DAMAGES

74.  Based on the above findings, the following sums as damages will be allowed:-

(1)	PSLA	HK$100,000
(2)	Pre-trial Loss of Earnings	HK$182,000
(3)	Post-Trial Loss of Earnings	HK$235,200
(4)	Loss of Earning Capacity	HK$50,000
(5)	Special Damages	HK$10,000
		___________
	Sub-total	HK$577,200
	Less EC received in DCEC 2186/2020	(HK$210,000)
		___________
	Total	HK$367,200

CONCLUSION

75.  My calculation for the damages has been shown in the preceding paragraph. And, I order that assessment of damages be made in the sum of HK$367,200 plus interest in this case.

INTEREST

76.  For interest on general damages, P claimed 2% per annum from date of Writ of Summons (3.11.2021) to date of judgment.

77.  For interest on pre-trial loss of earnings and special damages, P claimed half of the judgment rate from date of the Accident (15.11.2018) to date of judgment, and thereafter at judgment rate until date of payment.

78.  I will allow the claim for interest as follows:-

(a) the usual award for interest at 2% per annum for general damages from the date of writ to the date of judgment;

(b) at half of the judgment rate for special damages from the date of the Accident to the date of judgment; and

(c) thereafter at judgment rate until full payment.

COSTS

79.  Costs will follow the event. I will make a costs order nisi that the defendants shall pay the costs of this action in favour of the plaintiff. Such costs to be taxed if not agreed on the District Court scale, with certificate for counsel. The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations. In the absence of any application to vary the same within 14 days after the handing down of the judgment, the order nisi will become absolute.

80.  Lastly, I am grateful to the plaintiff’s counsel Mr Leon Ho, D2’s counsel, Mr Wong Hok Yan and their instructing solicitors for their helpful assistance rendered to me in these proceedings.