LAM KAM FAI v. YAU SHING SCAFFOLDING CO LTD AND ANOTHER

CACV 6/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 6 OF 2014

(ON APPEAL FROM HCPI NO. 894 OF 2011)

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REASONS FOR JUDGMENT

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Hon Cheung JA:

1.  I agree with the reasons for judgment given by Kwan JA.

Hon Kwan JA:

2.  This is the plaintiff’s appeal against an assessment of damages for personal injuries by Deputy High Court Judge Hartmann on 31 October 2013.  The defendants conceded liability at the beginning of the trial.

3.  The judge awarded damages of $427,763 plus interest to the plaintiff, after giving credit for employees’ compensation in the sum of $621,057.  In so doing, he dismissed the claim for loss of future earnings and awarded $245,000 as damages for loss of earning capacity after making a deduction of 30% to take into account the plaintiff’s pre-existing disability.  The plaintiff appealed in respect of these two heads of claim, contending that the judge should have awarded damages for loss of future earnings at $4,563,238.68 and loss of earning capacity at $350,000 without any deduction for pre-existing disability.

4.  At the conclusion of the hearing, we dismissed the appeal with costs to the defendants and these are the reasons for judgment.

Background

5.  The relevant background matters as taken from the judgment are as follows.

6.  The plaintiff was employed as a scaffolding worker by the 1^st defendant and the 2^nd defendant was the principal contractor.  The accident was on 23 December 2008.  The plaintiff slipped when he was erecting the inner scaffolding.  He sustained a fracture of his left ankle (the distal fibula) requiring surgery and was hospitalised for eight days.  He was aged 24 at the time of the accident, with four years’ experience as a bamboo scaffolder and earning about $23,400 a month.

7.  When the plaintiff was discharged from hospital, he walked with the aid of bilateral crutches, which were discarded nine months later.  Between March and July 2009, he had physiotherapy and reported a 60 to 70% improvement.  From July to November 2009, he underwent work rehabilitation training.  In a test conducted in November 2009, he had great difficulty climbing ladders and scaffolds due to pain in his left ankle.  It was suspected that the complaints of persistent pain might arise out of a screw implanted during his operation to secure the fracture.  On 13 April 2010, he was admitted to hospital for the surgical removal of his implant and was hospitalised for six days.

8.  After his discharge, the plaintiff underwent further physiotherapy which was concluded in June 2010.  According to the doctor who examined him on 17 June 2010, he had recovered full and active range of motion in the ankle joint and was held to be “orthopaedically fit”.  The plaintiff asked the doctor for further sick leave so that he could take driving lessons.  This request was turned down by the doctor.

9.  After this date, the plaintiff did not seek further treatment from government doctors and instead consulted a private medical practitioner Dr Wong Pit See between June and October 2010.  He complained of persistent pain in his ankle and emotional problems, and was diagnosed as suffering from post-traumatic depression and chronic pain syndrome.  For two years from October 2010, the plaintiff did not seek further medical treatment for either his physical impairment or psychological problems.

10.  From December 2010 to October 2012, the plaintiff worked as a salesman in an aquarium shop in Shenzhen.

11.  The writ against the defendants was issued on 14 December 2011.  On 20 December 2011, Dr Chun Siu Yeung, the orthopaedic expert appointed jointly by the plaintiff and the defendants examined the plaintiff.  In his report in February 2012, Dr Chun recorded the plaintiff’s complaints at the time of the examination and gave a detailed account of his medical history after a thorough review of the medical records and all the X-rays taken from December 2008 to June 2010.  He also took another X-ray.  He noticed the plaintiff had a pre-existing fracture non-union at the tip of the left fibula, which should have occurred a few years before the fracture sustained at the accident in December 2008.  But the plaintiff denied any prior history of injury to his left ankle.

12.  Dr Chun found on physical examination there was basically normal gait and station, and mild residual stiffness in left ankle dorsiflexion and plantar flexion.  There was no significant wasting of the left lower limb muscles.  The joint and bone density was normal, with no post-traumatic osteoarthritic change.  He was of the opinion that a small portion of the residual pain and stiffness could have been contributed by the pre-existing fracture non-union.  He took the view the plaintiff’s condition had reached maximal medical improvement and no further active treatment was required.  He estimated the prognosis as good.

13.  As to the plaintiff’s general impairment and ability to return to work, Dr Chun said the plaintiff “is independent with his activities of daily living.  He is able to return to work as a scaffolding worker with mild reduction of work efficiency.  His present work as salesman of gold fish and serving his clients is suitable”.  Dr Chun assessed the plaintiff to have 8% impairment of the lower extremity, equivalent to 3% impairment of the whole person.  He would apportion 30% of this impairment to the previous fracture non-union and thus the whole person impairment for the injury of the accident would be 2%.  He said the plaintiff’s loss of earning capacity arising out of the injury should be set at 3%.

14.  At the end of 2011 or early 2012, the defendants made a video film of the plaintiff under covert surveillance.

15.  The plaintiff gave evidence he attempted to return to work as a scaffolder in November 2012 but could not continue due to pain in his left ankle and sought treatment from the Accident and Emergency Department of the United Christian Hospital on 20 and 21 November.  He also went to the Accident and Emergency Department of the Tuen Mun Hospital on 29 November 2012 for treatment and was told he had sprained his ligament and might not be suitable to work as a scaffolder in future.  In March and April 2013, he made two attempts to work as a general worker in a construction site but had to stop after a few days on account of pain in the left ankle.

16.  An MRI done on the left ankle of the plaintiff on 8 May 2013 showed a partial tear of the anterior talofibular ligament and of the calcaneofibular ligament.  On 22 May 2013, the plaintiff consulted a private medical practitioner Dr Tio Man Kwun Peter.  Dr Tio mentioned in his report the plaintiff told him he had another fall from the scaffold in his failed endeavour to return to work.

17.  Dr Chun was provided with the medical reports of the two medical practitioners the plaintiff had consulted, Dr Wong and Dr Tio, and he made a supplementary report in July 2013.  Dr Chun stated it was difficult to determine the cause of the partial tear shown on the MRI with the limited information on the recent fall.  Assuming the recent fall did not result in significant injury (otherwise there would be documentary evidence in support of the medical treatment sought by the plaintiff at the time), Dr Chun concluded there was about 70% chance the partial tear would be associated with the old fracture non-union at the tip of the fibula before the accident in December 2008 and 30% chance that the partial tear was due to the injury sustained in December 2008.  He did not think the additional reports of Dr Tio and Dr Wong should cause him to amend the views in his first report.

The judgment

18.  In September 2012 and March 2013, on the joint application of the parties, a master had ordered the medical reports of various government hospitals together with Dr Chun’s medical reports should be adduced without the need to call the makers.  The plaintiff was the only witness to give evidence at the trial.  Mr Clough, who appeared for the plaintiff here and below, said it is normal for an order to be made that medical records and reports be adduced at trial without the need to call the makers.  Notwithstanding this kind of order is regularly made, and despite the engagement of a single joint expert, it is incumbent on practitioners involved in personal injuries litigation to assess whether there is any need to call the joint expert at the trial to deal with any aspect or issue that is diametrically opposite to their client’s case, and the court should have been alerted to this before the case is listed for hearing.

19.  The issue before the judge was whether the plaintiff’s condition was “as bleak as painted by the Plaintiff himself, preventing him from taking up any form of work other than that of an essentially sedentary nature or does the opinion of the orthopaedic expert appointed jointly by the parties reflect the true state of the Plaintiff’s physical condition”[1].

20.  Having reviewed all the evidence before him, and having heard the plaintiff testify, the judge rejected the essentially bleak portrait of his condition.  While he accepted the ankle injury may cause the plaintiff discomfort on an intermittent basis, he was satisfied that the probabilities point firmly to the plaintiff’s condition being the condition detailed by Dr Chun[2].

21.  In respect of the plaintiff’s unsuccessful attempts to return to work, the judge said they were not supported by the available medical evidence.  In respect of the November 2012 attempt, there was only a referral letter of the United Christian Hospital dated 21 November 2012 speaking of a complaint of residual left ankle pain.  Nothing was said in the referral letter of pronounced pain and discomfort occasioned by a return to work or of any fall at work causing a tear or sprain of ligament.  There was no medical report from Tuen Mun Hospital at all concerning any sprain of the ligament or any advice the doctor allegedly gave to the plaintiff he might not be able to continue to work as a scaffolder.  Nor was there any persuasive evidential nexus between the injury shown on the MRI taken in May 2013 and any fall (or other form of injury) occasioned in November 2012 or March/April 2013[3].

22.  The judge did not accept the plaintiff’s attempts to return to work in the construction industry resulted in the level of pain and discomfort he spoke of in his evidence.  He was left with the very real impression the plaintiff had “purposely exaggerated”.  Nor did he accept that well over four years after the accident, the plaintiff’s psychological condition is of such a profound nature that it prevents the plaintiff from returning to work in the construction field.  In summary he rejected the plaintiff’s evidence he is today incapable of holding down any kind of job other than that of a sedentary nature[4].

23.  On consideration of all the evidence, the judge was satisfied that in assessing appropriate damages, the injury to the left ankle pre-existing at the date of the accident in 2008 must be taken into account, in that the old injury did have a causative nexus to the plaintiff’s overall impairment[5].

24.  For pain and suffering and loss and amenities, the judge made an initial assessment of $325,000 and gave a discount of 10% as the court must look to the future as well as the past.  As the plaintiff’s injury sustained in December 2008 had healed by June 2010, from that time onwards the old injury must be taken into account.  On that basis, it can be expected that in future the residual discomfort would be due in part to the old injury.  The judge therefore arrived at $292,500[6].  There is no appeal in respect of this head of claim.

25.  For pre-trial loss of earnings, an award was made on the basis that the plaintiff, if he had wished, would have been in a position to take up his old job as a scaffolder from September 2010.  Damages were awarded at monthly loss of earnings of $23,400 plus mandatory provident fund of $1,000 per month for 20.3 months.  No discount was made for the old injury as the trauma of the December 2008 injury would have been entirely dominant until the injury had healed.  The total came up to $495,320[7].  There is also no appeal in respect of this head of claim.

26.  The claim for post-trial loss of earnings was dismissed, as the judge was satisfied that the plaintiff’s decision to work as a security guard is not a decision forced on him by his physical condition but is a career choice on his part.  The plaintiff appealed against the dismissal.

27.  As for loss of earning capacity, the judge took into account a number of factors and came to the view that a reasonably substantial sum should be awarded but he discounted it by 30% on account of the plaintiff’s old injury as it relates to future loss.  So the initial figure of $350,000 was reduced to the net sum of $245,000[8].  The plaintiff contended on appeal that there should be no discount and the full sum of $350,000 should be awarded.

28.  Special damages of $16,000 awarded to the plaintiff are not in contention on appeal.

This appeal

29.  The main issue in this appeal, as Mr Clough had submitted, is whether the judge was entitled to reject the plaintiff’s evidence in dismissing his claim for future loss of earnings.  The main thrust of the plaintiff’s case is that the judge ought not to have accepted the opinion evidence of the single joint expert Dr Chun.

30.  Mr Clough argued that as an orthopaedic specialist, Dr Chun was speaking outside his expertise in his evaluation of the plaintiff’s ability as regards the specific work demands of his pre-accident job.  He submitted that occupational therapists and to a lesser extent physiotherapists are much better able to give an opinion as to the ability of a patient to do a particular job, as it is within the expertise of an occupational therapist to relate test results of a patient to known job performance requirements.  He drew attention to the reports of the occupational therapist regarding the assessment of the plaintiff in August 2009 (that the plaintiff was unable to climb ladder and scaffolding due to left ankle pain), September 2009 (the work capacity and job demands did not match “with significant degree of limitation”) and November 2009 (that even with work rehabilitation training the plaintiff was still unable to climb ladders and scaffolding due to left ankle pain, when he was discharged from occupational therapy on 18 November 2009).

31.  In essence, he repeated his argument before the judge that the realities of the construction site were that a worker with “reduced efficiency” simply cannot find employment, as the ganger or foreman is never interested in such a worker.  He also mentioned the plaintiff’s evidence that he had tried to return to work as a scaffolder but could not perform the work and was advised by his treating doctor he might not be able to continue working as a scaffolder.  He submitted the plaintiff should be treated as a reliable informant as the Waddell’s simulation tests conducted by Dr Chun, which are designed to establish non-organic origins of pain, had yielded negative results.

32.  As for making a discount of 30% to the award on loss of earning capacity, Mr Clough submitted the judge had failed to consider the difference between the legal concept of causation and the concept of causation in medical science, citing Lee Kin-kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232 at 235I to 236B.  Further, he said there is nothing in the medical reports that suggests that absent the accident the plaintiff would not have remained symptom free for the rest of his working life.

33.  Mr Clough also complained of remarks made by the judge in the course of his opening address for the plaintiff[9] and his closing submission[10], which appeared to indicate that the judge had agreed with the plaintiff’s case and counsel thought he could rely on the judge’s considered observations and did not apply to call Dr Chun to deal with the plaintiff’s inability to return to work as a scaffolder.

34.  None of the arguments raised by the plaintiff are of substance.

35.  The approach of an appeal court in respect of an assessment of damages is that it should only reverse the trial judge as to the amount if it considers that the judge acted on a wrong principle of law or that the amount awarded was so high or so small as to make it an entirely erroneous estimate.  Simply because the appeal court might have awarded a different sum is not a justification for altering the award (Flint v Lovell [1935] 1 KB 354 at 359; Chan King Wan and Yip Siu Yin, the administratrices of the estate of Leung Hoi Sung, deceased v Poon Chung Kam and Ng Wai Ling, the administratrices of the estate of Leung Kit Chuen, deceased [2000] 1 HKLRD 751 at §8).

36.  Mr Clough would need to show that in accepting the expert opinion of the single joint expert and rejecting the plaintiff’s evidence, the judge had acted on a wrong principle of law.  The correct approach in assessing the evidence of a single joint expert is neatly summarised in Hong Kong Civil Procedure 2015, vol 1, at §38/4A/7:

“Weight to be given to a single joint expert’s report – In Coopers Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA Civ 1223 (considered by Lam J in L v L [2005] HKEC 1851), the English Court of Appeal held that the evidence of a single joint expert should be assessed in light of all other evidence before the court. Clarke LJ (para 41) accepted the submission that Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210 did not establish that the evidence of the single joint expert must be accepted by the court. The court must take its own view of the expert evidence in the light of the other evidence. The assessment of the weight to be attached to the evidence of the single joint expert must depend on the circumstances of each case. Where a witness of fact gives evidence on an issue that is contrary to that of the single joint expert, the judge should make a considered choice as to which evidence to accept, but that it should be unusual to disregard the expert’s evidence.”

37.  That was exactly the approach adopted by the judge here.  He had fully considered the plaintiff’s evidence as to his present condition and his unsuccessful attempts to return to work in the construction industry.  For the reasons mentioned earlier, the judge was left with the very real impression that the level at which the plaintiff pitched his evidence in this regard was tactical, and, in short, purposefully exaggerated.  He assessed all the available evidence and then made a considered choice as to which evidence to accept.  He noted that other than the plaintiff’s unsupported allegations, nothing had been put before him to suggest that Dr Chun’s report was not a true and accurate report at the time it was made[11].  He accepted the submission of the defendants’ counsel Mr Daniel Chan that Mr Chun’s report is supported by other evidence[12].

38.  I do not think the judge’s approach can be faulted, and there is no error of law or principle.

39.  The assessment reports of the occupational therapist do not assist Mr Clough.  As he has recognised, these reports were mentioned in some detail in Dr Chun’s report.  The judge also mentioned this in his judgment[13].  So the assessment of the occupational therapist had been considered.  But more pertinently, the assessment was done in November 2009, before the plaintiff had his surgical implant removed in April 2010 and before his examination by a doctor in June 2010 that he had recovered full and active range of motion in the ankle joint and was held to be “orthopaedically fit”.  There was no further assessment by any occupational therapist since the plaintiff was discharged from occupational therapy on 18 November 2009.  What the plaintiff was or was not capable of doing in 2009 would not be of much assistance, let alone decisive assistance, to resolving the conflict of the true assessment of his present physical condition.

40.  I do not agree with Mr Clough that it is outside the expertise of the orthopaedic specialist to give an opinion, based on his assessment of the present physical condition of the plaintiff and the information he obtained regarding the demands of the plaintiff’s job, as to the feasibility or otherwise of the plaintiff in returning to work as a scaffolder.

41.  There is no valid basis this court can interfere with the judge’s findings in rejecting the plaintiff’s evidence.  It cannot be said that the judge was plainly wrong regarding his assessment of the evidence of this witness of fact (Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336 at §42).  As for the opinion evidence of the single joint expert, the assessment of the weight to be attached is a matter for the trial judge.  This is treated on appeal as a finding of fact, so to succeed the plaintiff would need to show that the judge went seriously wrong such as by overlooking critical evidence, misunderstanding the evidence, or making a finding wholly unsupported by any evidence (Au Yeung Miu Sim v Tsang Kwong Wai & Anr [2004] 2 HKLRD 187 at §16).  For the reasons already canvassed, the judge has made no such error.

42.  As for the comments made by the judge in his exchanges with Mr Clough in counsel’s opening and closing submissions, the judge has given this explanation in §66 of his judgment:

“During the trial, I expressed some concern that a scaffold worker, by the nature of his employment, may not be able to tolerate even a modest lack of flexibility or weakness in the area of one or more of his ankles. That concern, however, was not based on any knowledge of the occupation. Nor was anything put before me to suggest that my concern was one of such substance that it should lead me to reject the opinion of Dr Chun, the orthopaedic expert, that the Plaintiff was capable of returning to work as a scaffolder with just a mild reduction of his working efficiency. I am satisfied that the doctor would not have come to this stated view if, in his mind, there was any risk to the Plaintiff or if he was not of the opinion that the Plaintiff was capable of meeting the requirements of the job.”

43.  Having read the relevant parts of the transcript, it is clear that the views expressed by the judge when he discussed the case with counsel were just tentative views.  In the course of Mr Clough’s opening submission, the judge had made clear that he was putting his concern across “at the moment as a devil’s advocate”[14], it is “just a matter that at this stage … [he] put a tick mark … so it’s a tick mark only where [he] would like to be educated by both [counsel] … at a later stage”[15].  And having expressed the view during Mr Clough’s closing submission that he had some conceptual difficulty with a scaffolding worker returning to work with diminished efficiency, he did say “[he is] sure [he’ll] be dissuaded from this by Mr Chan, but that’s provisionally how [he] would tend to see it.”[16]

44.  Having heard the counter arguments from the defendants, and having given the matter further consideration, the judge eventually came to the view as expressed in §66 of his judgment.  There is no unfairness in the procedure at all.

45.  As for discounting the award of loss of earning capacity by 30%, the judge has not confused the legal concept of causation with the concept of causation in medical science, as contended by Mr Clough.  The judge was clearly aware of the standards to be satisfied to establish causation at law.  As stated in §71 of his judgment, it would need to be shown that the old injury is, in part at least, causative of any discomfort brought about in the main by the later injury in the accident.

46.  There is available evidence that the old injury did have a causative nexus to the overall impairment of the plaintiff.  Dr Chun has expressed the view that the possibility of the partial torn ligaments (which were asymptomatic before the injury of December 2008) having been triggered by the accident in December 2008 is not high.  Dr Chun also opined that there was about 70% chance that the partial tear of ligaments would be associated with the old fracture non-union, assuming that the alleged recent fall did not result in significant injury.  The judge cannot be criticised for making a reduction to the award for loss of earning capacity as this head of claim relates to future loss.  There is no basis to interfere with his assessment that the discount be set at 30%.

47.  For all the above reasons, we dismissed the plaintiff’s appeal with costs to the defendants.

Hon Chu JA:

48.  I agree.