PANGMA DAMBAR DHOJ v. DRAGAGES HONG KONG LTD AND ANOTHER

HCPI 76/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 76 OF 2014

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JUDGMENT

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Introduction

1.  On 12 December 2011, Mr Pangma was employed by Dragages Hong Kong Ltd at a construction site in Cheung Sham Wan.  Dragages Hong Kong Ltd was a subcontractor of Dragages Bouygues Joint Venture which was the Principal Contractor at the site.

2.  On that day, in the course of his duties, Mr Pangma was instructed to assist in manually opening and closing a heavy metal gate at the main entrance of the site to allow lorries to enter and exit the site. Whilst in the course of pushing the metal gate to close it, Mr Pangma’s right foot sustained injury.  It is the case for Mr Pangma that the injury he suffered, and the condition he now experiences, was sustained as a result of the negligence of the defendants.  Mr Pangma now seeks damages for that injury. 

The circumstances of the accident

3.  The metal gate is formed by seven steel right-angled triangle structures, each about 1.3 m apart, with the gate attached to the vertical side of the triangles.  The angled side of the triangle providing support to the gate.  Each of the triangle supports is attached at its base to two longitudinal horizontal steel braces, one at the right angle, the other at the acute angle of the triangle.  These braces run parallel to the gate, separated from the gate by a short lateral horizontal steel brace which forms the base of the triangle.  Underneath each triangle are a pair of rollers, which enable the gate to roll along flat steel strips fixed into the ground.

4.  The longitudinal and lateral steel braces effectively form an oblong box in which a man may stand to push the gate with his hands against the angled support. 

5.  No particular instructions had been given to the workers as to how they were to move the gate, either to open it or close it. It appears that a practice had developed whereby one man would stand at the end of the gate, and another in one of the oblongs, and together they would push the gate open or closed. 

6.  The movement of the gate naturally brings the short horizontal steel brace forming the base of the triangle closer to the heels of the man standing in the oblong pushing the gate.  As the length of the oblong is only approximately 1.3 m, the short brace behind the worker can easily strike the rear foot of man pushing unless he moves his feet quickly enough.

7.  And that is precisely what happened to Mr Pangma late on the evening of 12 December 2011.  Leaning forward to push the gate, Mr Pangma was struck on his right foot by the trailing lateral steel brace.

8.  Although on the pleadings the circumstances of the accident were in dispute, by the time the matter came to trial there was no evidence to suggest that Mr Pangma’s description of the accident was not correct.  Indeed, Mr So, the defendants’ safety officer, described the method of pushing the gate completely in accordance with that described by Mr Pangma.

9.  The best evidence as to precisely where Mr Pangma’s foot was struck by the steel brace is contained in the report from his attendance at the Accident & Emergency Department of Yan Chai Hospital a few hours after the accident occurred.  The report records:

“ His right ankle was injured by an unknown mechanism.”

Mr Wong attempted to make a point from the fact that Mr Pangma did not describe the mechanism of the injury to the attending emergency doctor.  I accept Mr Pangma’s evidence that difficulty in communication between a Nepalese worker and a local Hong Kong medical officer has resulted in the mechanism not being described.  Nothing turns on this.

10.  I accept Mr Pangma’s evidence as to how the accident occurred.

Liability

11.  I am satisfied that it is patently obvious that a man standing inside the oblong box at the base of the triangles, with only 1.3 m to move in, pushing the gate forward, would be exposed to the risk of injury by being struck on his foot.  The system of work that was used plainly exposed the workers to the risk of injury and no steps at all were taken by the employer to alleviate that risk.

12.  Mr Wong put it to Mr Pangma it would have been safer to have pushed the gate from outside the oblong box.  That is undoubtedly right, but that was not the system of work that was adopted.  That system was probably not adopted because to push the gate from outside the oblong box would have involved the worker leaning sideways to be able to reach the angled brace.  In such a position he would be able to apply significantly less effort to push the gate.

13.  In these circumstances I have no doubt that the employer is liable in negligence in respect of the injury caused to Mr Pangma.

Contributory negligence

14.  At the same time, as it was so patently obvious that there was a risk of being struck on the foot, it was necessary for the worker to be careful and to move his feet quickly enough while pushing the gate to ensure that he was not struck.

15.  Mr Pangma failed to pay attention to the position of his rear foot, and so must be held, in part, responsible for the accident.  However, the primary responsibility must lie with the employers, as it was the employers who acquiesced in the system of work the workers were required to use, and failed to give any particular instruction or warning to the workers of the risk.

16.  In all circumstances I would hold Mr Pangma 25% liable in contributory negligence.

The injury

17.  As I have recorded (§9 above), the injury Mr Pangma described on attendance at the hospital was to his right ankle.  The only physical finding was that there was tenderness over his right ankle.  An X-ray of the right ankle and right foot did not show any fracture.  Mr Pangma was treated by the application of a Tubigrip pressure bandage on the right ankle, and was prescribed Tramadol (for pain relief), and Hirudoid ointment (to improve circulation to assist in the repair of a soft tissue injury).

18.  Mr Pangma described there being redness and swelling of his ankle following the injury.  That is not recorded in the medical report but I accept Mr Pangma’s explanation of difficulty in communicating with the doctors.  It does not follow from the prescription of Hirudoid that there was swelling, as it is likely that future swelling might occur and the prescription may well have been on a prophylactic basis.

The surveillance evidence

19.  In the usual way, surreptitious surveillance video of Mr Pangma was obtained.  On four separate days Mr Pangma was seen to be able to walk normally for several long distances without difficulty. 

20.  On one occasion he was seen to be able to carry apparently heavy bags without difficulty.  He asserted in cross examination that the bags were light, no more than 10 kg to 15 kg.  It is not possible to reach a conclusion as to the weight of the bags.  But what was plain was that Mr Pangma was able to carry large bags, full of items, without apparent difficulty.  On the same day, on one occasion he carried, first, 2 large bags, and shortly thereafter, 4 bags, two of which were of significant size.  Although his adult son was present, Mr Pangma did not seek any assistance.

21.  In the final video, taken on the same day as he was seen carrying the bags, he was seen to be able to walk upstairs without difficulty.

22.  It is not without significance that prior to the surveillance videos being served on him, (at this stage he was acting in person), Mr Pangma’s Revised Statement of Damages contained an assertion that he could not climb stairs without pain.  It was quite clear from the surveillance video that that allegation would not be substantiated.  He climbed the stairs with ease.

23.  Some months after being served with the video evidence, Mr Pangma obtained leave to file an Amended Revised Statement of Damages.  In this statement the allegation that he could not climb stairs without pain was varied to become a statement that he could not go downstairs without pain.

24.  It is right that none of the surveillance videos showed him going downstairs.  However, Mr Pangma lived on the fifth floor of a walk up building with no lift.  It was necessary for him to go down five flights of stairs in order to leave the building.  The surveillance video shows him leaving the building, plainly after having walked down the stairs.  He leaves the building and walks in the street without difficulty showing no sign of pain at all.

The expert medical evidence

25.  Mr Pangma was subsequently seen by two orthopaedic surgeons, Dr Wong Chin Hong (instructed by Mr Pangma’s solicitors) and Dr Henry Ho Ching Lun, (instructed by the defendants’ solicitors).  Two joint medical reports were prepared, the first on 21 May 2014, the second on 9 July 2015.

26.  In the joint report prepared on 21 May 2014, both doctors were agreed that the X-ray taken at Yan Chai Hospital on the night of the accident showed no fracture.  Subsequent MRIs showed an intact right Achilles tendon with no MRI evidence of tendinopathy, peritendinitis or paratendinitis or any bone abnormality, other than a possible mild degree of retrocalcaneal bursitis.  An X-ray of the right ankle and right foot taken at the time of that joint report showed a calcaneal spur at the tendo-Achilles insertion site.

27.  Both were agreed that Mr Pangma had sustained a soft tissue injury to his right ankle which was consistent with the alleged injury mechanism.  Both agreed that the injury had been adequately treated and rehabilitated and that Mr Pangma had reached the state of maximal medical improvement.

28.  In the report of July 2015 Dr Wong noted that the calcaneal spur was pre-existing, a common radiological finding, and was usually asymptomatic.  He said that no treatment was necessary.  Dr Wong’s assessment of the situation was in these terms:

“ Mr Pangma gave no history of previous right ankle pain. His persistent right ankle symptoms and signs were triggered and were fully attributable to the subject accident. His persistent right ankle pain was unrelated to the calcaneal spur and the possible mild degree of retrocalcaneal bursitis reported on MRI.

The retrocalcaneal spur and the possible mild degree of retrocalcaneal bursitis would not have affected Mr Pangma’s future working capacity and sick leave if not for the subsequent accident.” (My emphasis)

29.  Dr Ho noted first, that on 13 December 2011 Mr Pangma reported tenderness over his right ankle when he was admitted to A&E at Yan Chai Hospital.  Next he noted that on 29 December 2011, at Mrs Wu York Yu General Out Patient Clinic (“GOPC”).  Mr Pangma reported mild tenderness over the medial and lateral malleolus.  This apparently persisted and was recorded on 2 January 2012, when he was seen at Lady Trench GOPC. 

30.  There he was followed up on three occasions with the report from the clinic noting that, upon the last visit (16 May 2012), there was no more tenderness over the medial and lateral malleolus of the right ankle joint, though there was still slight tenderness over the medial side of the right heel region.  Dr Ho noted that in his view that was likely related to pre-existing planter fasciitis, which will be dealt with shortly.

31.  Dr Ho noted that on examination on 14 March 2014 the complaint was of right heel pain and mild right for foot pain.  There was no tenderness over the medial and lateral malleolus.

32.  Dr Ho reviewed Mr Pangma’s condition comprehensively in the following terms:

“ His current symptom of heel pain corresponds to the sites of the calcaneal spur and retrocalcaneal bursitis over the right heel and back of the ankle. These are not the sites of tenderness initially recorded by the doctors who treated him soon after the injury. His present complaint of right heel pain is thus unrelated to the subject accident but is due to planter fasciitis which is an inflamation of the plantar fascia at its attachment of the heel bone (calcaneum) and retrocalcaneal bursitis. A calcaneal spur, which is a traction spur, is an overgrowth of bone from the heel bone and is chronic and pre-existing. It is caused by chronic traction overload on the calcaneum bone by the plantar fascia. Excessive chronic traction (due to prolonged standing, jumping, climbing, squatting, overweight) causes trauma to the plantar fascia resulting in inflammation and hence heel pain. It does not occur after a single acute injury. [Original emphasis]

As the report from Lady Trench GOPC dated 31 December 2012 by Dr Cheung Ting Po stated, there was no more tenderness over the medial and lateral malleolus of his right angle joint. Therefore, the sites, which were the only documented sites of tenderness and injury, had fully recovered after the subject accident. This was expected since there was no sign of bruising, swelling or open wound to suggest the presence of a serious ankle injury when he attended Mrs Wu York Yu GOPC on 29 December 2011. He could walk normally with a normal gait.

The subsequent right heel pain is not related to the subject accident but is entirely due to the retrocalcaneal bursitis and calcaneal spur. The MRI scan did not show any other abnormality to explain his right heel pain.

The retrocalcaneal bursitis and calcaneal spur were not attributable to the subject alleged accident.

The inflamed plantar fascia (symptomatic heel spur) presents as heel pain and would affect his ability to withstand prolonged standing, squatting, climbing and carrying heavy loads which add extra pressure on the heel region and aggravate his heel pain further.

The retrocalcaneal bursitis would also present with pain around the back of the heel region near the attachment of the Achilles tendon (heel cord).  It may be caused by walking, running, jumping or squatting.  It could present with heel pain and limit his ability to walk, run, jump, stand on tip toes and claim heights.  The recovery from the retrocalcaneal bursitis and symptomatic heel spur (planter fasciitis) could take up to 4 months. Theoretically, sick leave of up to 4 months could sometimes be required when severe.”

33.  Dr Wong merely makes a subjective assertion, apparently based upon the statements made to him by Mr Pangma.  That assertion is not supported in any way by any proper analysis or medical justification.

34.  Dr Ho on the other hand relies upon objective analysis of the X-rays and MRI.  He has had proper regard to the subjective statements made by Mr Pangma.  In asserting that Mr Pangma’s current condition is quite unrelated to the accident, Dr Ho has appropriately analysed the evidence and reaches a justified conclusion. 

35.  I prefer and accept the evidence of Dr Ho and reject that of Dr Wong.

Conclusion

36.  I am satisfied that Mr Pangma has failed to establish on the balance of probabilities that the accident that he suffered on 12 December 2011 is the cause of the conditions he now experiences. 

37.  On the contrary, the evidence establishes on the balance of probabilities that Mr Pangma’s present condition is quite unrelated to any injury suffered in the accident.  Any consequences of that injury would, I am satisfied, have been resolved well within 12 months of the date of the accident, leaving Mr Pangma injury free.

38.  For those reasons, the claim must fail.

Costs

39.  There will be an order nisi that Mr Pangma must pay the defendants’ costs of the proceedings, to be taxed on a party and party basis.  Mr Pangma’s own costs prior to the discharge of the Legal Aid Certificate will be taxed in accordance with Legal Aid Regulations.