CHONG HA KUI TAI v. MULTICON ENGINEERING CO LTD (in liquidation) AND OTHERS

                                                          HCPI 1168/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1168 OF 2002

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J U D G M E N T

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1. The plaintiff brings this claim for damages for personal injuries, against all three defendants on the basis of negligence and breach of duty by them, resulting in injuries sustained by the plaintiff at work on a construction site situated at Sau Mau Ping Public Housing Phase 15, Sau Mau Ping, Kowloon (“the Site”) on 20 December 1999.

2. The 3^rd defendant is the principal contractor of the Site and the only defendant who took part in the trial.

3. The claim against the 2^nd defendant is on the basis that he was the subcontractor of the 3^rd defendant.  The claim against the 1^st defendant is put on the basis that he was the sub-subcontractor of the 2^nd defendant.  Moreover, the plaintiff’s case was the he was employed either by the 1^st or the 2^nd defendant as a wall plank installation technician at the Site.

4. Winding Up orders have been made against the 1^st and 2^nd defendants.  However the plaintiff has obtained an order from the court, pursuant to section 186 of the Companies Ordinance to proceed against the 1^st and 2^nd defendants despite the winding-up orders.  The provisional liquidator of the 1^st and 2^nd defendants, has not entered any appearance on either of their behalf, nor has any Defence been filed by either of them.

The accident

5. On 20 December 1999, the plaintiff was instructed to work at a flat on the 28^th floor of a building known as Block J at the Site.  At this flat, where the plaintiff was working, there was a metal frame which was in the process of being dismantled.  There were 20 to 30 metal supporting tubes standing vertically on the floor and supporting the ceiling.  At about 11 a.m. when the plaintiff was squatting down and stapling certain iron sheets with a cement gun, one such metal tube toppled over and hit the plaintiff on the left side of his forehead. 

6. Fortunately for him, the plaintiff was wearing a helmet at the time.  When the metal tube fell and hit the plaintiff, it hit him on the left bottom edge off his helmet, near his left temple region.  As a result of being hit by the metal tube, his helmet came off.

7. According to the plaintiff the metal tubes should have been removed and cleared from the flat before any wall plank installation works were carried out.  The plaintiff believed that it was possible that the use of the cement gun by him might have caused vibration, which in turn caused the metal tube to fall.  Other workers generally working at the flat would be exposed to the danger of being hit by such falling metal tube.  For this reason, the plaintiff says that the metal tubes should have been cleared from the flat before allowing the plaintiff (and other workers) to carry out the wall plank installation works there.  The 3^rd defendant was responsible for the installation and dismantling of the metal tubes at the flat.

8. That was the evidence given by the plaintiff on the issue of liability. 

9. No factual witness was called by the 3^rd defendant on the issue of liability.

Liability

10. Despite the fact that no evidence had been adduced by the 3^rd defendant on the issue of liability to challenge the evidence of the plaintiff, the issue of liability was nevertheless disputed by the 3^rd defendant.

11. Mr Lim, counsel for the defendant, cross-examined the plaintiff as to how the accident happened, alleged inconsistency as to the plaintiff’s description of the accident with the injury sustained by the plaintiff, slight and trivial inconsistency between the plaintiff’s description of the accident and the documentary evidence, in particular, the Form 2 (which was not even filled out by the plaintiff).  Moreover, the plaintiff was cross examined on a number of matters relating to quantum with a view to discrediting his general credibility.

12. Based on the cross-examination of the matters aforesaid, it was submitted by the 3^rd defendant, that I should disbelieve the plaintiff as to how the accident happened. 

13. It should be apparent to someone as experienced as Mr Lim, that in a civil matter, where the standard of proof is on balance of probabilities, it is very seldom if at all that cross-examination alone showing up minor discrepancies and inconsistencieswould be sufficient for a court to wholly reject and to disregard the evidence given by a witness short of some major concessions made by the witness. 

14. Mr Lim has also sought to rely on a number of matters in the evidence of the plaintiff dealing with quantum to mount an attack on the general credibility of the plaintiff as to the occurrence of the accident.

15. Whilst I accept that some of the evidence of the plaintiff relating to some aspects of quantum may well have been exaggerated (and which will be dealt with in more detail when I come to deal with the issue of quantum), I do not accept that the plaintiff’s general credibility has been so impeached that I should completely disregard his evidence as to how the accident occurred.  Those unsatisfactory aspects of his evidence on quantum will be dealt with when I come to deal with the issue of quantum.

16. In the present case, despite the cross examination of the plaintiff, I have no difficulty accepting the evidence given by the plaintiff as to how this accident occurred or how the plaintiff was injured.

17. On the evidence as presented to the court by the plaintiff which I accept, there can be no question that all three defendants have failed to provide a safe place of work or a safe system of work for the plaintiff. 

18. Contributory negligence, although pleaded in the Defence of the 3^rd defendant, has not been dealt with or pursued in the final submissions of both the counsel for the plaintiff as well as counsel for the 3^rd defendant thus no longer a live issue at trial.  Even if it was still a live issue, despite not having been pursued at trial, there is no evidence before me from the 3^rd defendant as to how the plaintiff was himself at fault for the injuries sustained by him in this accident, the onus for establishing contributory negligence being on the defendant.

19. I therefore find all three defendants liable to the plaintiff for this accident on their negligence in this matter.

Quantum

20. I turn now to deal with the issue of quantum.

Injuries and treatment

21. Immediately after the accident, the plaintiff was taken by ambulance to the Accident and Emergency Department (“A and E”) of the United Christian Hospital (“UCH”) arriving there at 11.48 a.m.

22. Examination at the A and E Department of UCH revealed tenderness over his left forehead.  X-ray of the skull showed no fractures.  The plaintiff was placed under observation until 3.10 p.m. the same day and was discharged with the diagnosis of head injury.

23. Three days later, on 23 December 1999 the plaintiff attended the A and E Department of UCH complaining of headache over the site of impact on his left forehead but was discharged the same day.

24. On 25 December 1999 at 8.43 a.m. the plaintiff attended the A and E Department of Yan Chai Hospital complaining of headache.  Examination there showed tenderness over the left side of his forehead.  He was treated and discharged on the same day.

25. He again attended the A and E Department of Yan Chai Hospital the following day, i.e. 26 December 1999 again complaining of headache relating to his head injury and was granted sick leave for that day.

26. On 28 April 2000 the plaintiff attended the A and E Department of Princess Margaret Hospital (“PMH”) at 5 p.m. complaining of occasional headache since his accident in December 1999.  Examination showed no neurological deficit and no wound with all vital signs normal.  He was treated with oral analgesic and discharged.

27. Upon repeated attendances at the A and E Department of PMH, a CT brain scan was performed on the plaintiff on 6 August 2000 which showed no abnormality.

28. In July 2000 the plaintiff again attended the A and E Department of Yan Chai complaining of headache and vomiting relating to this head injury.

29. On 1 December 2000 the plaintiff attended the specialist outpatient clinic of Queen Elizabeth Hospital (“QEH”) at the department of neurosurgery complaining of severe headache and nausea.  Neurological examination carried out on the plaintiff showed him to be normal and no neurological deficit was detected.  He was once more admitted for CT brain scan the result of which was also normal.  The diagnosis made was post concussional syndrome and no permanent neurological disability was expected.

30. On 5 March 2001, the plaintiff was referred to the Medical Specialist Clinic of PMH for his complaint of on and off headaches resulting from his head injury in December 1999.  The medical report from PMH indicated that the plaintiff’s headache increased with sunshine and stress but was not associated with nausea or vomiting and was not associated with limb weakness or numbness.  Physical examination did not reveal any abnormal findings and no prescription was given.  The diagnosis was once again post concussional syndrome but that permanent disability was unlikely.

31. The plaintiff was examined by his own expert in neurology, Dr Brian Choa in July 2002.

32. In his medical report dated 10 July 2002, Dr Choa gave his opinion on the plaintiff’s medical condition as follows :

(1)	The plaintiff had suffered a mild head injury in the accident in December 1999 and that CT scan had shown no abnormality.
(2)	Post concussional syndrome can follow a mild head injury and although its severity and duration need not necessarily be proportional to the severity of the injury, it is rare to have persistently disabling symptoms in a young man like the plaintiff.
(3)	It was likely that an injury to the plaintiff’s neck was overlooked at the time.  An X-ray of the plaintiff’s neck (arranged for by Dr Choa at the time of this examination) showed  no bony abnormality but some loss of lordosis secondary to muscle spasm.  Dr Choa further states that muscle spasm would not be present two and a half years after the accident unless some trauma to the region had occurred.
(4)	The head and neck pain suffered by the plaintiff, with occasional associated dizziness are the main reason why the plaintiff feels unable to work, but these symptoms should be readily treatable and the plaintiff should be referred back to a specialist unit where the appropriate use of painkillers (or more powerful drugs if necessary) for chronic pain can be used.
(5)	The total impairment to the plaintiff was assessed by Dr Choa at 5%.

33. The plaintiff was also examined by the defendant’s expert on neurology, Dr Edmund Woo.  That examination took place in August 2001 thus preceding the examination by Dr Choa by about a year.  In his medical report dated 30 August 2001, Dr Woo gave his comments and opinion as follows :

(1)	The plaintiff had suffered a very mild head injury in the accident and there was no radiological evidence of any parenchymal brain damage.
(2)	The plaintiff complains of residual headache, giddiness and impaired memory but neurological examination demonstrated certain unusual features.
(3)	The plaintiff demonstrated moderate weakness in all four extremities but such weakness was characterized by an equal involvement of the agonist and antagonist muscles at each joint.  There was no associated hypertonia or hyper reflexia.  Such discrepancies and inconsistencies defied neurophysiological principles and raises strong suspicion that his deficits were either feigned or grossly exaggerated for the examination.
(4)	Because of such discrepancies, it was difficult to gauge the true extent of the plaintiff’s neurological handicap.
(5)	The natural history of such mild head injury of the type suffered by the plaintiff is one of gradual recovery over a period of 12 to 24 months, although a mild degree of residual headache, non-specific giddiness and impaired memory consistent with the diagnosis of a post concussional syndrome may remain.
(6)	Dr Woo assessed the plaintiff’s disabilities at not more than 1% of the whole person adding that there is no specific treatment available.
(7)	Dr Woo further commented that the plaintiff should be able to return to his pre-accident work although his disability may limit his performance at work compelling him to take periodic rests during the day.
(8)	In the case of the mild head injury of the plaintiff, he should have recovered sufficiently by December 2000 (i.e. one year after the accident).  The plaintiff returned to work about three months after the accident.  (In this respect, the History taken by Dr Woo in his medical report states that the plaintiff took a rest of about three months after the accident in December 1999, then returned to his pre-accident job as a casual labourer on construction sites and has been working intermittently two to three days at a time and taking up light duties).

Pain suffering and loss of amenities

34. From all accounts, it would appear that the plaintiff had suffered a mild head injury with no neurological deficit of any kind and that from that mild head injury he had suffered post concussional syndrome which manifested itself in occasional headaches, neck pain and dizziness with some impaired memory.  I further accept the finding of Dr Choa that there was an injury to the neck with some loss of lordosis secondary to muscle spasm.  This sufficiently explains his neck pain.

35. I cannot however give any weight to the reason given by Dr Woo that the plaintiff had feigned and exaggerated his complaints.  The reason given by Dr Woo for such finding, namely that the plaintiff had demonstrated weakness in all four extremities, was never a complaint by the plaintiff, not at the time of examination and not at the trial.  I should make it clear that it is the reason given by Dr Woo that I do not accept.  I do however accept there was exaggeration by the plaintiff, specifically in relation to quantum.

36. Indeed the plaintiff’s complaint of headaches dizziness and impaired memory was accepted by Dr Woo as being consistent with post concussional syndrome and in his opinion those symptoms should have gradually recovered between 12 to 24 months after the accident.

37. The plaintiff was given sick leave (on and off) for a period up to about two years after the accident.  For present purposes it suffices to say that accords with the opinion of Dr Woo as to the time it would have taken for the plaintiff to have recovered.  However I shall come back to deal in greater detail with the sick leave granted to the plaintiff, in particular the sick leave granted by Dr Yung, when I deal with loss of earnings.

38. For this head of claim, the plaintiff claims $400,000 on the basis that his injuries would fall just short of the “Serious” category laid down in Lee Ting Lam’s case.  I do not accept that.  Given all the circumstances of his injuries and disabilities, I am of the view that the mild head injury suffered was nowhere near the “Serious” category of injuries. 

39. I have taken into account the opinion of Dr Choa that his symptoms are readily treatable either with painkillers or stronger drugs if necessary.  I have also taken into account the opinion of Dr Choa that in a robust young man like this plaintiff, there is no good reason for the headache and dizziness not to have gradually recovered with time.  However, I do accept that the plaintiff’s symptoms did persist for some time in this case, at least some 12 months and perhaps longer.  That would accord with the opinion of Dr Woo that his symptoms should have recovered between 12 and 24 months.

40. At the time of examination by Dr Choa, the plaintiff may well be still suffering some residual symptoms of headaches and dizziness, but by that time such symptoms were only occasional.  Indeed according to the plaintiff, at the time he was examined by Dr Choa in July 2002, he had already returned to work at a construction site albeit as a casual construction worker.

41. $150,000 will be awarded for pain suffering and loss of amenities.  Had it not been for the length of time that his symptoms persisted, I would have had no hesitation in assessing an even smaller amount under this head of claim.

Loss of earning

42. The plaintiff claims for full loss of earnings for the period of sick leave granted to him as well as for partial loss of earnings after the sick leave period had expired from the time he took up work as a casual worker at construction site in May 2002.

43. Two issues here need be resolved.

44. Firstly the period of sick leave.  Admittedly, the evidence adduced by the plaintiff show that he was granted sick leave (on and off) by government doctors as well as private doctors up to some time in January 2002.  The sick leave granted to him from 3 April 2001 all the way up to January 2002 were granted to him by Dr Yung Sui Lan.  Dr Yung gave evidence at the trial.  For the reasons given in the later part of this judgment dealing with Dr Yung, her credibility has been severely impeached, to such an extent that I cannot rely on the sick leave period granted by her to the plaintiff in so far as my assessment of the plaintiff’s loss of earnings is concerned.

45. Accordingly, I decline to give any weight to the period of sick leave from 3 April 2001 to January 2002 granted to the plaintiff by Dr Yung.

46. Secondly, it is the evidence of the plaintiff that he could only take up work at a construction site as a casual worker since May 2002 but that he could not resume his pre-accident work as a wall plank installation worker because of his headache and dizziness.  In this respect his earnings as a casual worker at construction sites is much less than what he was earning as a wall plank installation worker.

47. That he could not resume his pre-accident work as a wall plank installation technician after his sick leave period (and even at the time of the trial) was put on the basis that as a wall plank installation worker the plaintiff would have to use equipment such as a cement gun or hand held electric saw.  In those circumstances, if a sudden attack of his occasional headaches and dizziness came on while the plaintiff was operating such equipment, that would make it dangerous both to the plaintiff and other workers.  It was for this reason that the plaintiff says he could not return to his pre-accident job as a wall plank installation worker.  The case of the plaintiff in this respect was never put on the basis that the plaintiff could not perform the work of a wall plank installation worker.

48. The fallacy in that submission is that there is not an iota of medical evidence to say that the residual occasional headache or dizziness of the plaintiff can come on suddenly and without warning.  In the absence of such medical evidence I do not accept the suggestion that the plaintiff may be a danger to himself or other workers should he return to his pre-accident work as a wall plank installation worker.

49. It follows from the findings above of the plaintiff’s medical condition and disabilities in this case that the only loss of earnings for which the plaintiff should properly be compensated for would be for the period that he was granted sick leave by doctors other than Dr Yung, albeit intermittently.  The sick leave period up to 3 April 2001 will be some 15½ months.

50. As for his pre-accident earnings, it is stated in the Form 2 filed by the 1^st defendant with the Labour Department after this accident that the plaintiff was paid a daily wage of $800 and that he worked on average 26 days a month.  While at the same time it was stated in the Form 2 that the plaintiff’s wages for the month immediately preceding the accident to be $15,000, it is the average monthly earnings of the plaintiff that I am concerned with in making the assessment under this head.

51. Therefore on the basis of the plaintiff working on average 26 days per month at $800 per day, I find that his average monthly earnings before the accident to be $20,800. 

52. For the 15½ months that the plaintiff was given sick leave, his loss of earnings comes to $322,400.  From this amount will need to be deducted the amount of $9,050 as being the amount of actual earnings received by the plaintiff during this period conceded in the final submission of plaintiff’s counsel (working for three to five days soon after the accident, working for a further two to three days in March 2000 and for five days of work with Li Chun Kin in March 2000).  This gives $313,350.

53. For loss of Mandatory Provident Fund (“MPF”) relating to this loss of earnings, bearing in mind that MPF came into force in December 2000, the loss of MPF would only be in respect of four months.  This comes to $20,800 x 4 x 5% giving $4,160.

54. Totally the loss of earnings including loss of MPF comes to $317,510.

Future loss of earnings

55. For the reasons and findings stated above, there can be no future loss of earnings and none will be awarded.

Loss of earnings capacity

56. Although no future loss of earnings has been awarded, there could well be some loss of earnings capacity due to his residual headache and dizziness.  Such loss of earnings capacity cannot be great since it is treatable as opined by Dr Choa, the plaintiff’s own medical expert.

57. I will assess loss of earnings capacity in a lump sum of no more than $10,000 by reason of the fact that in all the circumstances of this case, it should not take a very long time for the plaintiff’s residual headache and dizziness to be fully cured if it had not already been cured.

Other special damages

58. The plaintiff’s claim for medical consultation expenses at Princess Margaret Hospital and United Christian Hospital in the sum of $1,012 has been agreed by the 3^rd defendant.  So too the claim for medical expenses paid to Dr K.T. Chow ($150) and Dr George Chiu ($200).

59. The major item of special damages in dispute between the parties is the claim for medical expenses of $14,660 paid to Dr Yung Sui Lan.

60. From all the evidence adduced in relation to this disputed claim relating to Dr Yung’s medical expenses, it appears that the claim for $14,660 has been greatly bloated up and exaggerated by both the plaintiff and Dr Yung.

61. From the evidence and from Dr Yung’s medical records, it is quite clear that the plaintiff had only attended totally 19 consultations with Dr Yung, and which is not disputed by the 3^rd defendant, relating to his headaches and dizziness arising from this accident.

62. It is also clear from the evidence of Dr Yung that the usual consultation fee charged by her is $230 each time.

63. However, what has happened in the present case is that on each of the actual consultation Dr Yung issued a number of separate receipts (sometimes 2, sometimes 3 and sometimes 4) bearing different dates which were dates on which there was no actual consultation by the plaintiff.

64. The explanation given by Dr Yung was that although there were no actual consultations on many of the dates put on the receipts issued by her, that was done by her because she was prescribing medication to the plaintiff over a period of time which would normally involve 3 or 4 different consultations and was therefore charging for these non-existent consultations, but that the plaintiff was also convenienced by such arrangement since he did not have to attend so many consultations.

65. I wholly reject that explanation and find that the reason for these receipts in respect of those consultations which did not actually take place were to enable the plaintiff to exaggerate his claim for damages.  It would appear that Dr Yung was very much a party if not the instigator of this scheme to exaggerate the claim for medical expenses.

66. Indeed at the end of the evidence of Dr Yung, counsel for the plaintiff, in final submission, conceded that this claim for medical expenses relating to the consultation with Dr Yung should be assessed at $230 for 19 consultations only giving $4,370.

67. Since there is undisputed evidence from the medical records of Dr Yung that there was actually 19 consultations with the plaintiff and I also accept her evidence that her usual consultation charge to be $230 per consultation, I shall adopt that suggestion of the plaintiff’s counsel and assess the medical expenses to Dr Yung at $4,370.

68. There is also a claim by the plaintiff for tonic food in the amount of $10,000, however no receipts had been produced to support this claim.  Moreover, no particulars were given by the plaintiff as to the kind of tonic food he had consumed.  In these circumstances and on a rough and ready approach, I will only allow $2,000 for such claim.

69. As for travelling expenses, the plaintiff claims $5,000.  Bearing in mind that the plaintiff was granted sick leave for some 15½ months, during which time, his follow up treatments in various hospital continued, travelling expenses will be assessed at $2,000.

70. Total special damages therefore comes to $9,732.

Interests

71. Interests at 2% p.a. will be awarded for general damages for pain suffering and loss of amenities from the date of the Writ until judgment.

72. Interests at 4.122% (being half judgment rate) will be awarded for pre-trial loss of earnings and special damages from the date of accident until judgment.

Summary of damages assessed

PSLA	$150,000
Pre-trial loss of earnings and MPF	317,510
Special damages	9,732
Interests on PSLA	9,000
Interests on all pre-trials & special	77,561
Sub-total :	$563,803

73. From this sub-total amount of $563,803 will need to be deducted the amount of Employee’s Compensation already received by the plaintiff in the amount of $344,800.  The final figure arrived at is $219,003.

Conclusion

74. There will be judgment for the plaintiff in the sum of $219,003 against all the defendants.

Costs

75. In view of the amount of the judgment sum recovered by the plaintiff, it appears quite obviously that this case should never have been brought in the High Court.

76. Accordingly, there will be a costs order nisi that the plaintiff’s costs of this action be paid by the defendants to be taxed on the District Court scale if not agreed.

77. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Postscript

78. A  copy of this judgment will be made available to the Medical Council for them to decide if they should take any action against Dr Yung in respect of her action as stated herein.