ZAHID ANWAR v. GRACEFUL SOUND LTD AND OTHERS

HCPI 410/2008
& HCPI 370/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 410 OF 2008

-------------------------

-------------------------

-------------------------

-------------------------

(Consolidated by Order of Master Yudated 10 September 2009)

------------------------

J U D G M E N T

------------------------

1. This is an assessment of the plaintiff’s claims for damages for personal injuries sustained in an accident at work on 10 April 2006 which occurred when he was working as a container slinger and fell some 10 feet from the top of a container. Judgment was entered by consent on 9 January 2012.

2. The plaintiff was born on 25 June 1977 in Pakistan.  He is now 35 years old.  He received primary level education.  He came to Hong Kong in 1993 performing various jobs until he started to work as a container slinger in about 1998.  After the accident, he was taken by ambulance to Princess Margaret Hospital.  The report from the Accident & Emergency Department of that hospital stated that the plaintiff fell from a height of 9 ft and that he sustained injury to neck, left shoulder, back, right wrist and left hip.  Physical examination showed tenderness of neck, left shoulder, lower back and right wrist.  The report from the Department of Orthopaedics & Traumatology of the hospital went on to state that he suffered from transient loss of consciousness, complained of pain in the limbs, neck pain and back pain.  He had mild pain on cervical rotation and some tenderness in the lower lumbar spine.  He also had right thumb pain.  X-rays and CT scans did not show any fracture and he was treated conservatively with splintage.  He walked with one stick upon discharge, some 3 days later, on 13 April 2006. 

Spondylolysis

3. I shall first deal with the issue of spondylolysis.  A CT scan of the lumbar spine performed on 18 April 2006 showed bilateral L5 spondylolysis but no spondylolisthesis was noted.  The report from the Department of Orthopaedics & Traumatology of Princess Margaret Hospital stated that this was likely to be due to old age and was not related to the injury on 10 April 2006.  The term spondylolisthesis refers to a condition where one of the vertebrae, usually L5, becomes misaligned anteriorly (i.e. slips forward) in relation to the vertebra below.  This forward slippage is caused by a problem or defect within the pars interarticularis (or “pars” for short), facet joint or neuro-arch of the affected vertebra.  The forward slippage does not always occur; however, a pars defect may still be present.  This “non-slipped” pars defect is called spondylolysis.  The orthopaedic experts engaged by the parties, Dr Chan Chi King (“Dr Chan”) for the plaintiff and Dr Lee Po Chin (“Dr Lee”) for the defendant, addressed this issue in their letter dated 17 May 2010.  Dr Chan was of the view that the plaintiff was likely to have gone through life unaffected by his spondylolysis.  Dr Lee did not offer a contrary opinion and stated that spondylolysis alone had been shown, in the medical literature, not to be associated with increased tendency to back pain. I accept the evidence of Dr Chan on this matter.

The orthopaedic experts’ evidence

4. Of greater controversy was the continuing impact, if any, of two previous accidents sustained by the plaintiff in 2002 causing back pain.  He suffered neck and back injury in a road traffic accident that occurred on 1 April 2002 when he was admitted into Princess Margaret Hospital and discharged on 4 April 2002.  Examination at that time revealed tenderness over both sacroiliac joints, but no fracture or instability was seen from the x-rays.  He was treated conservatively with analgesics and with physiotherapy.  Some months later, on 20 August 2002, he was again admitted for low back pain after he had slipped and fallen one month before that admission.  He received conservative treatment and stayed in hospital until 22 August 2002.  He suffered injury in another road traffic accident on 14 June 2005 and he was seen once again at Princess Margaret Hospital and treated for neck pain and right shoulder pain. He had suffered neck sprain and shoulder contusion on this occasion but no fracture or dislocation was seen in the x-rays.  Dr Chan offered the opinion that the back sprain injuries in 2002 were independent events and did not have any bearing on the injury that he suffered when he fell on 10 April 2006.  Dr Lee suggested, however, that the history of back pain on two occasions reflected the presence of structural changes in the lumbar spine that made the plaintiff more prone to develop back pain and that there was a strong possibility that some other events, or natural progression of the condition, would have brought about symptoms similar to the plaintiff’s present state.  In addition, his proneness to develop back pain also contributed to his current back status.  He expected the plaintiff to develop back pain, similar to what he currently suffered from, in about 10 years’ time, even if the current accident had not occurred.

5. Before making a finding on this issue, I must refer to his current condition.  The joint report of the two experts dated 24 April 2010 had been prepared without the benefit of a further joint examination by the experts.  In that report, the two experts relied on the findings of their own physical examination conducted on the plaintiff on 12 October 2006, when Dr Lee had examined him, and on 1 November 2007, when Dr Chan had examined him.  Clearly, this is an unsatisfactory state of affairs given that sprain injuries improve with the passage of time.  The two experts should have been asked to conduct a joint re-examination of the plaintiff before compiling the joint report.

6. The plaintiff gave evidence confirming the contents of his witness statement in which he spoke of his current condition. That witness statement was dated 4 February 2010. He said that he still suffered pain in his lower back which increased when he tried to bend or to climb stairs or in cold or wet weather.  When the pain in his lower back increased, the pain radiated down his right leg and there was a feeling of numbness in his right leg.  He suffered pain in his neck from time to time, especially when he moved his head suddenly, or if the bus he sat in stopped abruptly.  He did not now suffer headaches all the time, or dizziness, but did so if he was constantly lifting.  He was still irritable and forgetful but he only felt pain in his right thumb when he tried to use force with his right hand, but not if he was eating or carrying a lighter bag.  He was able to use his right hand for many activities.  However, he could no longer use his right hand to perform the work of a slinger on a container.  The job requirements of such work were correctly set out in the occupational therapist’s report on the plaintiff dated 3 October 2006, in which it was stated that his work required occasional standing and walking, frequent trunk bending and climbing up and down from containers of some 9.5 ft. in height, and carrying and pulling wires with a weight of about 30 lbs (about 13.6 kgs). These wires ended in a hook which he had to hook onto the containers.  These hooks were heavy and had to be pulled.  He gave evidence that he could no longer lift heavy objects or bend or move heavy slings and, therefore, he could not return to his former job as a container slinger.

7. The joint experts referred to the occupational therapy report dated 3 October 2006 and noted that the plaintiff had demonstrated inconsistent performance.  According to the occupational therapist, owing to lack of full physical effort on the part of the plaintiff and the possible effect of psychosocial factors, a valid and reliable estimation of his work capacity and limitation could not be concluded. 

8. The orthopaedic experts commented that the treatment the plaintiff received from Princess Margaret Hospital, where he had been treated conservatively with a course of physiotherapy, was appropriate.  Dr Chan observed that, despite appropriate and adequate treatment, the plaintiff had not responded to the treatment, that his symptoms of back pain and right thumb pain remained similar, and that he had suffered from chronic back pain and chronic right thumb pain since then, which were debilitating.  Dr Lee was of a different opinion, namely, that the objective findings were consistent only with mild residual pain after a back injury.  He noted that there was evidence that the plaintiff was magnifying his symptoms with the presence of several non-organic signs, including marked discrepancy in the straight-leg-raising test, the lack of unilateral muscle atrophy of the right forearm, and the results from the testing of his handgrip, which was a flat curve in all five positions, normally regarded as a sign of poor subjective effort.

9. Both doctors agreed that the plaintiff had reached the stage of maximum medical recovery and that further treatment, including surgery, was not indicated.  Dr Chan observed that the plaintiff might need symptomatic treatment with medication when necessary.  Both doctors agreed that the plaintiff would continue to benefit from back and abdominal exercises.

10. Dr Lee assessed the plaintiff to suffer from 3% impairment of the whole person based on residual back pain without significant objective findings and he added an additional 1% due to residual pain in the right thumb.  Dr Chan assessed his back injury as belonging to DRE Lumbar Category II and assessed him to suffer from a 5% impairment of the whole person.  He did not give an impairment figure for the right thumb pain.

11. On the issue of sick leave, Dr Lee was of the opinion that sick leave granted up to November 2006 was reasonable, as he had finished his physiotherapy and occupational therapy by that time, and because his condition should have reached the stage of maximum medical recovery by then.  In his view, further sick leave was not justified.  Dr Chan, however, was of the opinion that the sick leave granted by the Hospital Authority from 10 April 2006 to 4 February 2007 was reasonable as the plaintiff gradually developed chronic back pain and chronic right thumb pain.  Dr Chan was also of the view that:

“Structurally, there is no contraindication for [the plaintiff] to resume any duty he was familiar with. However, the chronic back pain and chronic thumb pain may incapacitate him from performing strenuous work. In that case, light duties such as cashier, watchman, car park attendant, and cinema usher etc. may be suitable for him.”

Dr Lee’s view was that:

“the plaintiff should be able to return to work as a container slinger without significant loss of work efficiency.”

The neurological experts’ evidence

12. As the plaintiff had suffered a head injury, expert reports were obtained from neurologists by both parties.  Dr Brian Choa (“Dr Choa”) reported to the plaintiff’s solicitors on 6 December 2007 after his examination of the plaintiff which took place on 28 November 2007.  At that examination, the plaintiff had complained to him of headaches, dizziness and mild cognitive impairment and mood changes.  Dr Choa noted that his loss of consciousness was brief and post-traumatic amnesia did not exceed about one hour.  Neurological investigations had excluded any intracranial bleeding or other structural damage to his skull or brain and his examination had excluded any focal neurological deficit.  He was of the opinion that the complaints of the plaintiff were features of post concussion syndrome but that the prognosis was expected to be favourable in a young person such as the plaintiff and that symptomatic control of the symptoms was important.  He was of the view that permanent impairment to his person attributable to his neurological injuries should not exceed 3% of the whole person, and that he should be fit to return to his pre-accident work and play sports within 3 months of beginning treatment, subject to his spinal condition being effectively treated as well.

13. In his report dated 9 February 2010, Dr Edmund Woo (“Dr Woo”), instructed by the defendants’ solicitors, agreed that the plaintiff’s complaints of headache, dizziness and impaired memory were consistent with the diagnosis of a mild post-concussion syndrome, which accounted for, at most, a 1% impairment of the whole person.  As 4 years had elapsed since the injury, further significant improvement in his neurological functions was not expected.  The appropriate duration of sick leave was six months and, from a neurological perspective, he should be able to resume his pre-injury occupation as a container slinger at container terminals with no loss of earning capacity.  Dr Woo made specific mention of the straight-leg-raising test he had performed on the plaintiff which produced a result of 30 degrees in the supine position but 90 degrees in the sitting position bilaterally.  This test was designed to assess for any mechanical irritation of the lumbosacral nerve roots and should yield the same result irrespective of whether the patient was in a supine or in a sitting position.  The discrepancy in the result raised a strong suspicion that the deficit was either feigned or grossly exaggerated for the purposes of the examination and cast doubt on the genuineness and integrity of his complaints.

14. Dr Choa had the opportunity to peruse the report of Dr Woo and, in his letter dated 3 May 2010, rightly noted that Dr Woo’s findings and his own findings did not differ in any substantive way.  Whilst Dr Woo had highlighted the plaintiff’s inconsistent performance on the straight-leg-raising test, implying exaggeration of his disability, Dr Choa noted that the plaintiff had performed well on the test of cognition and had not feigned ignorance in the course of the mini-mental state examination.  He agreed with Dr Woo that, purely from a neurological point of view, and assuming adequate control of the symptoms, the plaintiff was fit to resume his pre-accident work.  However, he felt he was able to adhere to his earlier assessment of a 3% impairment of his person for his neurological condition. 

The plaintiff’s evidence

15. The plaintiff gave evidence that he was granted sick leave up to 10 April 2007.  Thereafter, he started to look for work and managed to get a job as a cashier and storekeeper for a recycling company called Sing Fai Recycling, starting on 1 August 2007 and earning $4,500 per month.  He worked there until the end of January 2008, travelling to Pakistan in February 2008, as his father had died and because he had to deal with family matters. He returned to Hong Kong in May 2008 and returned to work for Sing Fai Recycling from 1 June 2008.  In October 2008, he returned to Pakistan for two weeks for a family wedding and, on his return, he resumed work on 1 December 2008 as a cashier and storekeeper for another recycling company called Man Kee Recycling, this time earning $5,000 per month.  He was still working for the same recycling company in February 2011, when he made a supplemental witness statement in which he said that he had made several attempts to find a better paid job.  He gave an instance of going to Yau Tong in December 2010, to perform driving and loading and unloading work, but he had to stop after one hour as he suffered from increased pain in his back from lifting and loading heavy goods.  At about the same time, he had also tried to work at loading and unloading containers but he could not perform this work as it required heavy lifting.  He also stated in his supplemental witness statement that he would be starting work at a different recycling company called Sing Fai Company, in Kwun Tong, at an increased salary of $7,000 per month from the end of February 2011. He was still working for this company at time of trial.

16. In his evidence-in-chief, he explained that he could not perform work as a container slinger as the hooks were very heavy and had to be pulled by applying the force of the whole body.  The work required agility, especially when the waves were rough.  Although he was a licensed driver and able to drive light goods vehicles, he could not work as a driver for the recycling company because the drivers had to place goods into, and remove goods from, the vehicle that weighed 50 to 100 kgs and sometimes even 200 kgs.  Although they had the use of trolleys, the work also involved heavy lifting which was more than he could cope with.  He also explained that he could not perform the lifting work at the job he had obtained at Yau Tong where he had to move carton boxes weighing about 30 to 40 kgs. 

17. The plaintiff clarified, in cross‑examination, he had not attempted to go back to work as a container slinger because he could not do that work.  Because his salary at the recycling company was low, he was driven to find a higher-paid job and that was why he attempted to look for other work in December 2010.  He found that he could not cope with that heavy lifting.  When questioned why he did not try to find work as a driver only, performing work that did not involve loading or unloading of goods, he answered that he did try but “because I do not have much knowledge of roads, nobody employed me”.  He also stated that he could not drive for a long period of time because, if he did so, he would suffer from low back pain.  He also clarified that, normally, he did not suffer from low back pain, but if he made a lot of movements or walked up and down staircases a lot he would suffer from low back pain and also from neck pain.

18. He explained that his work in the recycling company was to make payment for recycled goods that were brought to the company and, also, to instruct the drivers of the company where to convey the goods. He seldom helped with moving the waste materials or recycled goods but might do so if his employer was present.  On those occasions, he would move packages of no more than 5 to 10 kgs in weight.  The work of loading the waste materials onto the lorry was performed by other employees of the company.  The company had five to six vehicles, five drivers, and other employees to help load and unload goods.

19. The plaintiff was cross-examined on the surveillance videos that had been taken of him on a number of separate occasions.  The first surveillance video was taken on 5 February 2010. The surveillance commenced at 5 p.m. when the plaintiff emerged from Dr Woo’s clinic.  The video showed plaintiff boarding a train at the Central MTR station and alighting some 30 minutes later at the Kwun Tong MTR station.  He did not present any adverse symptoms.  At about 5:45 p.m., the plaintiff was seen to be lifting large packages wrapped in cellophane and loading them onto a lorry.  At one time, he was seen using his right hand and exerting some force to tear the plastic sheeting that wrapped up a large pallet of goods.  On another occasion, he was seen holding the neck of a bag with his right hand to lift up the package to the lorry.  On a number of occasions, he was seen bending down to pick up large packages with both hands and loading them into the lorry.  I did not do any counting myself but I am informed that the surveillance video shows the plaintiff lifting and loading at least 26 packages on the lorry, some of them from lower levels that required him to bend down in order to pick them up.  Shortly after 8 p.m. on the same evening, he was filmed performing the action of bending down and handling something on the street.  He did so without any difficulty.

20. He was cross-examined about that part of the video showing him of tearing open one of the packages and it was suggested to him that he needed to apply considerable force to tear the plastic sheeting. In response, the plaintiff said that the sheeting was very thin and that he opened up that package by using both of his hands and, although he admitted that he also used his right thumb, he said that he used his right thumb only slightly. When he was confronted with the video showing him bending down at about 8 p.m. on 5 February 2010, he acknowledged that he was able to make that movement without any problem but he then corrected that evidence and said that he could bend down, as depicted on the video, but that he suffered from pain when he did so.

21. The surveillance of the plaintiff continued on a number of other days.  On the morning of 5 May 2010, he was seen to park a light goods vehicle and, sometime later, to board another light goods vehicle in order to park it.  After parking it, he opened the tailboard at the rear of the vehicle.  Sometime later he was filmed as he took a large package of waste materials brought to the recycling shop by a customer that he carried into the shop. 

22. It was also brought out in the course of cross‑examination that the plaintiff had given different versions of his hobbies and sporting activities to the doctors.  To Dr Lee, he had stated that he did not engage in any sports before the accident; to Dr Chan, he claimed that he played football and cricket; to Dr Choa, it was volleyball; and to Dr Woo, it was soccer and volleyball.  In court, he said, firstly, that he only played hockey and, later, he said that he also played volleyball, and he agreed with the suggestion that was put to him that he mentioned different sports to different doctors depending on whatever sport came to his mind. 

23. He was asked during re-examination how heavy were the packages he was seen to have loaded into the lorry and he answered that they weighed from 5 to10 kgs and that “there was no packet weighing more than 15 kgs.”  It was not a strain for him to transfer those packages from the pallet to the lorry: it was not a strain to transfer them as they were “too light”.  He said that the work of transferring the packages into the lorry, as shown on the video, was a lot of work, but that he did that work because his employer had been present and that he would not have done so if his employer had not been present.  The following exchange is also pertinent and worthy of note :

“Q : Did your back get worse from pain afterwards?

A : Yes.

Q : Your boss struggled to lift some of the bags?

A : Because my boss has a weak arm, that’s why he applied a lot of force even for a lighter object or package.

Q : Did you bend to pick up the bags at the base of the pallet?

A : Yes.

Q : Why?

A : I was helping because my boss was there.

Q : If the goods were heavy or of medium weight, could you do that, i.e. bend down and pick up the goods?

 A :  No.”

24. He was also questioned about the video recording of him ripping open the plastic sheeting of one of the pallets, and he explained that he did so using his left hand and that he did not use his right hand much.  

Findings

25. Having seen and heard the plaintiff give evidence and having considered the video surveillance evidence and the medical evidence, I find that the plaintiff is not a credible witness and that he has greatly exaggerated his current difficulties.  His evidence regarding his previous sporting activities lacked credibility.  In reaching this conclusion, I have taken into account the many instances of exaggeration, recorded by the medical experts, which I have identified above.  I must, however, express my surprise at Dr Chan’s omission to carry out a supine straight leg raising test and to test for Waddell’s signs particularly when he had noted the report of the occupational therapist which stated that the plaintiff had demonstrated inconsistent performance and inappropriate Waddell’s signs.  Experts are instructed to assist the court by offering their expert opinion on areas which are within their specialist experience and which are not matters of common knowledge.  That expert opinion has to be based on the objective evidence available to and ascertainable by them.  The paramount duty of the expert is to the court, not to his client who has engaged him and by whom he is to be paid.  There is no doctor-patient relationship between him and his client.  He is not a mouthpiece for his client but must conduct a forensic examination and critically weigh the objective facts before offering his opinion to the court. In the case of orthopaedic experts, this means that recognised non-invasive tests must be carried out to rule out exaggerated assertions and malingering.

26. There is no doubt that the plaintiff suffered multiple injuries when he fell almost 10 ft from the top of the container.  However, he is fortunate not to have suffered from any serious head injury or fractures.  I accept that he suffered from symptoms of post‑concussion syndrome and I accept the findings of Dr Choa and Dr Woo in that regard.  However, it is clear from the video surveillance evidence and from his performance in the witness box that he is no longer troubled by these symptoms.  He gave evidence that, in the past, he had obtained panadol from the store for his headache and, insofar as he may continue to suffer the occasional headache, I have no doubt that he can continue to obtain over-the-counter painkillers to relieve it.

27. I do not accept that he suffers from any continuing disability in his right thumb.  The video surveillance evidence clearly shows him applying considerable force with his right hand and thumb to rip open the plastic sheeting of the pallet of goods.  His feeble attempt to explain away this video surveillance evidence was unimpressive and made me doubt his credibility even more.

28. Although the plaintiff complained to me that he suffered from occasional neck pain, I find that he has recovered from the neck sprain that he suffered as a result of the fall.  He did not make any complaint of neck pain when he was examined by Dr Lee on 12 October 2006, and Dr Chan did not make any mention of his neck pain, in his first report and in their joint report, other than noting his complaint of neck pain after watching television for 10 minutes.

29. There is no doubt that the plaintiff fell and suffered a back sprain and contusion to his lower back as well as a sprain of his right thumb.  The injury to the thumb has since healed, and as I had found, leaving no continuing disability.  I also accept that he suffers from residual pain in the back as a result of the accident.  However, as he has greatly exaggerated his condition and current difficulties, it is difficult for me to make a proper evaluation of the extent of his current disabilities. 

30. His evidence that it was not a strain for him to transfer those 26 packages from the pallet to the lorry because they were “too light” did not sit well with the video showing that his employer struggled to lift some of the packages.  He tried to explain away that evidence by saying that his employer had “a weak arm” and that was why he applied a lot of force, even for a light package.  I do not hesitate to reject that evidence as an afterthought to explain away what was patently obvious from the surveillance video, namely, that the packages were not as light he tried to make them out to be.  The video surveillance evidence was disclosed before the plaintiff made his supplemental witness statement.  There has been no explanation offered for the omission by the plaintiff to deal with this surveillance evidence in his supplemental witness statement.

31. He told Dr Chan that he suffered from chronic back pain and chronic right thumb pain.  In his evidence-in-chief, he confirmed the statement he had made in his witness statement that he suffers pain in the lower back which increases when he tries to bend or climb stairs or in cold or wet weather.  Under cross‑examination, however, he said that he did not normally suffer from low back pain, but he would get pain if he made a lot of movements or walked up and down stairs a lot.  In re‑examination, he suggested that normally, his back pained “a little bit, not a lot”.  Whatever view one might take of his evidence and, as I had already said, I take quite a dim view of some of the evidence that he gave, it is clear that the plaintiff does not suffer from chronic pain in his back.  I do, however, accept that he does suffer from residual disabilities in his back and that excessive exertions and excessive movements will give rise to back pain but I would not classify his action of loading 26 packages of waste materials into the lorry and the multiple times that he was shown on the video to bend down and pick up articles as excessive exertions and excessive movements.  The plaintiff was physically active from 5 p.m., the time he took the half hour MTR train ride from Central to Kwun Tong, until he returned home at about 9.30 p.m. when the surveillance ended.  During this time, he not only lifts 26 packages into the lorry but also bends down a number of times and squats down.  At no time during this long period of surveillance did he manifest any signs of discomfort.  I also find that he was able to work as a driver and I reject his evidence that nobody would employ him as a driver because he did not know the roads of Hong Kong and his evidence that he would suffer back pain after driving for a long period of time.

32. However, I do find that his residual disabilities in his lower back would prevent him from carrying out heavy manual work requiring him to carry loads weighing 30 kgs or more, and I find that he is no longer able to perform the work that he attempted to do in December 2010 in Yau Tong. Nevertheless, I conclude that his orthopaedic difficulties would not prevent him from working as a driver, or returning to work of a container slinger, work that required him to handle hooks and wires weighing less than 15 kgs, which is less than the weight of the packages he admitted loading onto the lorry as shown on the video surveillance evidence.  I accept the evidence of Dr Choa and Dr Woo that his neurological condition did not prevent him from returning to perform the work of a container slinger, which is work that required him to work at a height on top of containers, as they very well appreciated.  In fact, both doctors had been supplied with a copy of the occupational therapist report of Mr Jackson Wong dated 3 October 2006 in which he detailed the work requirements of a container slinger.  Dr Woo specifically referred to this report and Dr Choa also referred to the report that he received from, amongst others, “the Occupational Therapy Services”.

33. However, I do not fault the plaintiff for not returning to work as a container slinger.  That work is more suited to a younger man, as, indeed, he was when he was pursuing the same.  With growing age, it is sensible to switch to less risky and less physically strenuous work, even at reduced pay.  However, if the injuries suffered in an accident at work as a container slinger have healed such that the injured employee can return to his pre-accident work, the tortfeasor ought not to be liable for the difference in wages arising from the sensible choice made by him to perform less risky and less strenuous work for less pay.  In the plaintiff’s case, he could easily have found work as a driver, with much less reduction of pay, but, for reasons best known to him, he chose not to do so.

34. Whilst Dr Lee’s theory, that the history of back pain on the two previous occasions in 2002 reflects the presence of structural changes in the lumbar spine making the plaintiff prone to develop back pain, is superficially attractive, I am not satisfied that this is, indeed, the case with the plaintiff.  I prefer the evidence of Dr Chan in this regard that the two previous accidents in 2002 were independent events, that the injuries suffered resolved without any continuing disability, and that they did not have any bearing on the injury that he suffered on this occasion.  The fact that the plaintiff was able to work as a container slinger for a substantial period of time after the events of 2002 supports the opinion of Dr Chan.  This is not a case where I need to take into account any pre-existing disability in my assessment of damages.

PSLA

35. I have perused the authorities referred to me by the parties including:

(a)  Wong Sun Ming v Chung Kam Tim HCPI 117/1999, 6.7.2000;

(b)  Li Sau Keung v Maxcredit Engineering Ltd and Ors HCPI 530/2001, 21.10.2002;

(c)  Shah Nisar v Wai Kit Engineering Co Ltd HCPI 1092/2003, 11.4.2005;

(d)  Chu Chung Wah v Ng Tung Pak & Choi Mei Hing HCPI 547/2003, 15.12.2004;

(e)  Ng Kong v Golden Caterers Limited HCPI 206/2004, 3.2.2005;

(f)  Chung Kam Chuen v Lisboa Bakeries Limited HCPI 1270/2003, 24.3.2005;

(g)  Chimmalee On-Uma v Waylung Waste Services Ltd DCPI 1945/2006, 4.7.2007; and

(h)  Allaja Dotta v Rodney Engineering Co Limited HCPI 981/2005, 31.7.2008

36. I have also referred to the decision of Suffiad J in Chong Ha Kui Tai v Multicon Engineering Co Ltd HCPI 1168/2002, 28 September 2005 ($150,000 for post-concussion syndrome and neck injury) and to the recent decision of the Court of Appeal in Cheung Oi Yan Ruby v Wong Hoi Sum, CACV259/2011, 17 July 2012 ($300,000 for back injury amounting to a 5% impairment of the whole person).

37. I award the sum of $300,000 as damages for PSLA in this case.

Future loss of earnings

38. I dismiss the plaintiff's claims for future loss of earnings but I would award damages for loss of earning capacity on the ground that the plaintiff suffers a handicap in the labour market in that he is unable to perform very heavy manual work such as that of a driver who has load and unload goods weighing 30 kgs or more. Although no evidence has been adduced to prove the wage differential between a driver who can perform very heavy loading and unloading work and a driver who cannot do so, I am able to and I infer that the latter will earn a lesser wage.  The plaintiff is now 35 years old and enjoys a full working life.  I assess damages for loss of earning capacity in the sum of $200,000 in the present case.

Future medical expenses

39. These had been claimed in the sum of $30,000 without any reliable evidence being adduced to support the claim.  I would only award $3,000 for the future cost of over the counter painkillers.

Pre-trial loss of earnings

40. The original period of sick leave that had been granted expired on 5 February 2007.  The Ordinary Assessment Board extended the period of sick leave to 10 April 2007, effectively allowing one year for sick leave. It was submitted on behalf of the defendants that pre-trial loss of earnings ought to be awarded only for a period of 14 months, the additional 2 months being a reasonable period of time for the plaintiff to find work and to return to work as a container slinger.  I do not agree.  When Dr Choa examined the plaintiff in November 2007, he was still suffering from symptoms of post-concussion syndrome.  Dr Choa advised that that he should be fit to return to his pre-accident work and play sports within 3 months of beginning treatment.  I prefer the evidence of Dr Choa over the opinion of Dr Woo that 6 months was sufficient.  It is well established that symptoms of post-concussion syndrome, if untreated, can linger for periods of up to 2 years and more.  The plaintiff ought to have sought treatment for his symptoms when the views of Dr Choa had been relayed to him by his solicitors.  On the evidence that I have considered, I am prepared to award pre-trial loss of earnings for a period of 26 months from the date of the accident in April 2006 to the end of May 2008.

41. There is a slight controversy regarding the average earnings of the plaintiff at the time of the accident.  I resolve the controversy in favour of the plaintiff and find that his average earnings as a container slinger were $12,687 per month.  In so finding, I exclude the period of January to March 2006 from the calculation of his average earnings as the plaintiff was off work for a substantial period of time during those three months in order to assist his wife who was having a difficult pregnancy.  The wages of a container slinger are likely to have increased during the 26 months which I have allowed in my assessment of damages for pre‑trial loss of earnings and I find that the median earnings during this period are likely to have been $13,000.  On that basis, the award for pre-trial loss of earnings and loss of MPF benefits amounts to $218,400 for the period of 16 months from April 2006 to July 2007 ($13,000 x 5% x 26 months) and $89,250 for the balance period of 10 months from August 2007 to May 2008 (($13,000 ‑ $4,500 which he earned, and could have earned, at Sing Fai Recycling) x 5% x 10 months).

Other Special damages

42. These are agreed in the sum of $4,830.

Employees’ compensation

43. The total award must be reduced by the sum of $175,540 received by the plaintiff as employees’ compensation.

Interest

44. I award interest on general damages for PSLA at 2% per annum from the date of service of the writ up to the date of judgment and interest on pre-trial loss of earnings and other special damages at 4% per annum from the date of accident to the date of payment of employees’ compensation, and thereafter on the remaining balance, after the deduction of employees’ compensation, up to the date of judgment.

Costs

45. I make the following costs order nisi: the defendants pay the plaintiff’s costs of the action, to be taxed on the District Court scale, if not agreed; and the plaintiff's own costs be taxed pursuant to the Legal Aid Regulations.