YI SHENGMAO AND OTHERS v. WONG KAM PIU AND OTHERS

HCPI 742/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 742 OF 2005

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JUDGMENT

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I.  INTRODUCTION

1. On 11 August 2002 the roof balcony on the 12^th floor of Yuek Wah Mansion at No. 53 Yuet Wah Street was being dismantled when it suddenly collapsed throwing 3 workers to the ground below killing one of them.  The 1^st Plaintiff, working illegally on a 2-way permit, was one of the two survivors, sustaining serious injuries when he landed on the roof of a car.

2. Judgment on liability was entered by consent against the 2^nd and 3^rd Defendants on 22 September 2008 by Deputy Judge Mayo with damages to be assessed.  The learned Deputy Judge further directed that the amount of the contribution recoverable in respect of the liability of the 1^st to 3^rd Defendants to the 1^st to 6^th Plaintiffs shall be as to the 1^st Defendant 30% of the said damages and costs and as to the 2^nd Defendant 35% of the said damages and costs and as to the 3^rd Defendant 35% of the said damages and costs.

3. The 4^th Defendant intervener joined the suit on 31 July 2006 pursuant to an order of Registrar C. Chan.  It settled the 1^st Plaintiff’s Employees’ Compensation claim under DCEC 874/2004 in the sum of $185,000.  Credit shall have to be given for the settlement in the common law claim.

II. The 1st  Plaintiff’s Injuries and Treatment

4. The 1^st Plaintiff had transient loss of consciousness and did not come to until his admission to the Accident & Emergency Department of United Christian Hospital (“UCH”).  On admission, there was swelling of his left arm and left thigh as also multiple abrasion wounds over the body.  X-rays showed comminuted fractures of both the left distal humerus and the left femur sub-trochanteric region.  Surgery was done on 13 August 2002 that included open reduction and plating of the humerus fracture and close reduction and intra-medullary nailing of the femur fracture.

5. The 1^st Plaintiff was hospitalized at UCH from 11 August to 3 October 2002 for management.  Post-operatively he was trained with progressive weight-bearing walking exercises and left elbow bracing.  The wounds healed well and X-rays indicated progressive fracture healing.  By the time of his discharge on 3 October 2002, he managed to walk with one axillary crutch.

6. Subsequent follow-ups on 24 October and 14 November 2002 indicated that both fractures were healing uneventfully.  Only mild pain remained and he was able to walk with a single crutch for support.  No further appointment being necessary, he was repatriated to China in November 2002.

7. On 2 November, the 1^st Plaintiff was admitted to Jueshan Medical Centre in China where he was hospitalized until 30 November 2002 during which he received herbal treatment.  Following discharge, he was treated with medication and injection for about a year.

8. On 9 December 2003, the 1^st Plaintiff was assessed by the Employees’ Compensation Board to have suffered a 6% permanent loss of earning capacity that on review by the Medical Assessment Board was revised upwards to 10% on 9 March 2004.

III. The Joint Medical Report

9. The 1^st Plaintiff was jointly examined by two orthopaedic specialists, Dr. Chun Siu Yeung (“Dr. Chun”) and Dr. Lau Man Tsang, Richard (“Dr. Lau”), respectively appointed by the 3^rd Defendant and the Plaintiff, on 12 January 2009.  Their report is dated 17 February 2009.

10. The 1^st Plaintiff is recorded as telling the doctors that he started to walk without crutches over a year after his mishap.  When he came to testify, he walked slowly almost haltingly to and from the witness stand with the help of a walking stick in his right hand for support.  His body was slightly inclined to the right side where his body weight was plainly shifted.  The impression imparted was of an individual still exhibiting considerable mobility restriction.

11. When interviewed by the experts, he had the following complaints:

(i)  Left arm pain, numbness in inclement weather or with dependent position for 15 minutes or when holding a rice bowl or 10 lbs;

(ii)  Left buttock and left lateral lower thigh and back of left heel pain, numbing ache that occurred in changes of weather or when sitting during bowel motion or when walking for 15-20 minutes;

(iii)  Tenderness and pain at the node that appeared on the left side of the face after the accident; and

(iv)  Lower thoracic down to lumbar spine pain, sharp piercing pain that first appeared in December 2002.

12. At the time of the examination, he was observed to have a slight limping gait due to shortening of limb.

13. On physical examination, the specialists noted the following abnormal findings:

(i)  Walking with a slight limping gait due to shortening of the left lower limb, no walking aid required.

(ii)  Mild wasting of the left gluteus maximus muscle.

(iii) 15 degrees of internal rotation of the left lower limb.

(iv)  2.5 cm shortening of the left lower limb.

(v)  Mild reduction of left hip active motions.

(vi)  Various surgical scars.

(vii)     Tenderness at mid left arm.

(viii)    Wasting of left forearm muscles.

14. They however noted that the left elbow and shoulder motions had improved.

15. The joint assessment further revealed that the 1^st Plaintiff had exhibited inappropriate signs or features of exaggeration.  They were these:

(i)  Tiptoe walking complained of buttock pain.

(ii)  Said unable to walk on heel despite reasonable range of left ankle motions.

(iii)  Positive Waddell’s simulation tests.

(iv)  Diffuse tenderness on left thigh.

16. There was a divergence of opinion between the two experts as regards these “inappropriate signs or features of exaggeration”.  Whilst Dr. Chun was of the view that the actual physical findings were consistent with the injuries, the signs and features noted were not compatible with the residual of the injuries.

17. Dr. Lau commented that “not all signs listed in paragraph 50 above were features of exaggeration.  Mr. Yi suffered from comminuted and segmental fracture of the femur.  A large portion of the femoral shaft had been involved in the accident.  The fracture site, despite bony union, can still be tender to deep pressure and hence Mr. Yi may complain of genuine thigh pain.  Also because of residual pain and weakness of the left lower limb, he may have difficulties in standing or walking on his heels”.

18. It seems reasonably clear that the 1^st Plaintiff did in fact attempt to exaggerate his condition to the doctors who agreed that his condition had reached maximal medical improvement with no active treatment being necessary.  When queried about the complaint to the experts that he had “sharp piercing pain that first appeared since December 2002”, the 1^st Plaintiff denied there was any such pain.  Yet it was a complaint that had been duly recorded and attributed to him.  In any event, the medical evidence suggested that the complaints of sharp piercing pain and limited AROM over the lower thoracic to lumbar spine were unrelated to the accident.

19. Both experts agreed that returning to demolition work was no longer an option for the 1^st Plaintiff.  Watchman, car park attendant and office assistant were considered suitable alternatives.  Dr. Chun’s suggestion that the 1^st Plaintiff was capable of casual work at construction sites was rejected by Dr. Lau on account of the residual disability noted.  They further disagreed on the period of sick leave.  In reality, the difference was but 2 months as Dr. Chun considered a year was appropriate as against Dr. Lau’s 14 months.  As happened, the 1^st Plaintiff has been continuously out of employment for some 7.5 years, a very long period given his injuries that are not of the most serious or debilitating nature.

20. In a supplemental note dated 21 January 2010, Dr. Chun further opined that the 1^st Plaintiff “should be able to carrying (sic) 50-75 lbs intermittently, but not very frequently.  He is able to climb up and down stairs/ladder or scaffolding from time to time, frequent and repeated climbing my (sic) give rise to tiredness or soreness”.  This latest opinion throws considerable doubt on the 1^st Plaintiff’s assertion made in para. 13 of his further supplemental witness statement dated 21 January 2010 that he could not return to his pre-accident employment as shrimp aquaculture technician.

21. I find that the 1^st Plaintiff was a most unreliable witness given to exaggeration to enhance his claim for damages.  As will appear below, even the very nature of his employment in China at the time of the accident is a matter of considerable controversy when his various accounts to the Police, in the DCEC proceedings, to the joint orthopaedic experts and in his Revised Statement of Damages are considered.  Of that more later.

22. As to the medical experts, I prefer the diagnosis and findings of Dr. Chun to Dr. Lau’s.  Dr Lau whilst acknowledging that there were some signs of exaggeration from the patient failed to identify them or to express any view as to their impact on his ability to resume his pre-accident employment.  Dr. Chun’s assessment I find to have been more comprehensive, thorough and clear.

IV. Pain, Suffering & Loss of Amenities

23. The 1^st Plaintiff suffered comminuted fractures of the left humerus and left femur that healed uneventfully but left him with a slight limping gait owing to shortening of the left lower limb.  Not the most serious of injuries but they have nonetheless left him with a recognizable residual disability as detailed on the medical evidence.  A period of sick leave of between a year and 14 months would have sufficed in the circumstances.

24. A number of quantum cases were cited.  These included Thelma G Chavex & Ors (the administration of the estate of Maurice Ronald Green, decd) v Fong Ka Yiu Frank [2001] 3 HKLRD 1, Ho Ho Ming v Tse Po Wah & Others (HCPI) 1168/2003, unreported, 25 September 2006, Leung Chun Tung v Siu Wai Cheong, HCPI 883/1995, unreported, 19 December 1997, Waan Chuen Ming v Lo Kin Nam, HCPI 588 & 591/03 (21 July 2008), Fung Bo Ha v Tang Tik Chung, HCPI 1368/99 (29 June 2001), Lam Cheuk Leung v Erwan Co Ltd & Others [2004] 1 HKLRD 781.  None of the above citations offers any direct parallel and at best should be taken for general guidance only.  The injuries suffered by the 1^st Plaintiff are most certainly less severe than those obtaining in Thelma G Chavex and Ho Ho Ming, supra and it would be inappropriate to lay too much emphasis upon these decisions as the 1^st Plaintiff has done.

25. In the circumstances of the case, an award of $350,000 would be fair and justified.  I so order.

V. What was the 1st Plaintiff’s actual employment or livelihood in the PRC?

26. Not least for his demonstrated admitted lies to the authorities and his legal advisors, the task of ascertaining the means by which he earned his living in China at the of the accident has been fraught with difficulties.  It is trite that the matter should have been dealt with by him with candour and clarity.  Quite the converse unfortunately obtains.  It is his claim for damages and it falls upon him to prove his case with reliable and credible evidence.  In this, the 3^rd and 4^th Defendants submitted that he had failed dismally.  There was much in their respective submissions that found favour with me.

27. The 1^st Plaintiff has only latterly admitted he furnished a number of different and inconsistent versions of his pre-accident employment and earnings on the Mainland.  For some 7 years between the date of the accident and August 2009, he held to the position that he owned or operated a shrimp farm as a means of livelihood.  His 1^st witness statement and various other written statements given were in the same vein.

28. In his police statement dated 18 September 2002 made at the Kwun Tong Police Station, he stated: “I had been running the shrimp farm at a loss, coupled with the fact that I could earn an income of only RMB 3,000, something even when I did part-time job as well, which failed to cover the loss, so I intended to come to Hong Kong for a job”.  In his statement made in the DCEC proceedings, he also said he “owned/operated a shrimp farm in my native place.  At that time, I earned about RMB 4,000 each month”.

29. In his own doctor’s report dated 15 October 2003, his occupations was noted as ‘merchant in seafood trades/worked in shrimp farming”.  In the joint orthopaedic report dated 17 February 2009, the 1^st Plaintiff was recorded as having said that prior to the accident he had rented a fishpond since surrendered to the owner and that he had been assisted by his wife in the enterprise.  As business was not good he therefore headed for Hong Kong.  There is more.

30. In the Revised Statement of Damages with its signed statement of truth dated 20 April 2009, it was asserted on his behalf that he earned approximately RMB 4,000 each month from owning or operating a shrimp farm in China.  It further reads: “He worked on the shrimp farm, sold sea food and carried out transportation work.  Further, the 1^st Plaintiff had plans to expand his business/trading interests to Hong Kong”.  His 1^st witness statement confirmed “I was the owner/operator of a shrimp farm in my hometown.  I made a profit of about RMB 4,000 each month”.  When taxed in cross-examination, he admitted, “This is not correct.  I was a technician for raising shrimp.  I was an employee.  Apart from that, I adopt this statement as my evidence.”

31. A pivotal change in the 1^st Plaintiff’s case occurred on 21 August 2009.

32. In his supplemental witness statement, the 1^st Plaintiff clarified that “ I was employed as an aquaculture technician in a shrimp farm in my homeland earning a basic salary of RMB 4,000 per month from 2001 to April 2001.  In addition, I received travel allowance and communication allowance in the amount of RMB 200 and RMB 100 respectively.  My salary was in the sum of about RMB 4,300 per month before the accident.  I received my salary in cash and there was no need for me to pay any tax at that time.”  Annexured to this statement were three copies of Pay Slips and two copies of Certificates purportedly issued by the Village Committee of Shanquian Village and Mingyuan Aquaculture Company Limited both dated 10 August 2009.  No doubt these new materials were introduced to reinforce his amended claim.  Of these, more later.

33. There was no attempt in the supplemental witness statement to account for the change in the evidence touching upon his pre-accident employment.  However, under cross-examination, he did endeavour to explain away the patent conflict.

34. In evidence, the 1^st Plaintiff offered a most unconvincing explanation for misleading the authorities, the doctors and the Legal Aid on the matter of his pre-accident employment.  He said it was a subterfuge to avoid his Mainland employer being implicated and to protect the reputation of the company on account of his unlawful work and arrest in Hong Kong.  Quite why he deliberately told untruths and kept up the pretence for so many years, I find to be highly suspect even with due allowance for his limited Form 3 level education and his probable fear when taken into custody.

35. Turning to the 3 Pay Slips, the copies of which have been referred to above, these were allegedly issued in 2001 and 2002 in different months.  Yet they all bear the same serial numbers.  They contain details of loan(s) repayable by the 1^st Plaintiff and allowances for travel and communication, presumably telephone charges.  The freshness of the red seals thereon seemed at odds with the age of the documents, as counsel for the 4^th Defendant was quick to point out.  I accept that there was no forensic evidence in this respect nor was the 1^st Plaintiff examined on point.  However, it does not follow that the court should accept them without question.  The 1^st Plaintiff was asked why he did not request his employer to produce slips for the entire period of his employment, he eventually said “ they did not issue pay slip”.  Given the demonstrated propensity of the 1^st Plaintiff to lie and the late surfacing of these 3 documents, the authenticity of the Pay Slips I find to be questionable to say the least.

36. As respects the 2 handwritten Certificates, both dated 10 August 2009 with one from the village committee and the other from the Mingyuan Aquaculture Co. Ltd., much the same criticism can be leveled at them.  Both documents lacked particularity, being somewhat vague and general in content.  The certificate from the Mingyuan Aquaculture Co. Ltd failed to identify the commencement date of the 1^st Plaintiff’s alleged employment with them or of the maker’s identity and position within the company.  I hold these documents to be unreliable as well.

37. On the evidence such as it was presented, I find that the 1^st Plaintiff was as he said and maintained for a number of years, more probable than not a self-employed shrimp farmer aided by his wife as he described.  The business was more likely to have seen better times which explained why he came to Hong Kong to seek opportunities with local traders.  He admitted that the business was losing money.  Had it been otherwise, would he have undertaken the hazardous work that ultimately led him to grief?

VI. Pre-trial Loss of Earnings

38. The 1^st Plaintiff claimed that he was making approximately RMB 4,000 a month from the aquaculture business.  Very little detail was forthcoming in this regard.  His alleged earnings are unsupported by any documentary evidence other than his various statements.  They are not capable of verification.  What seems reasonably clear is that the business was not successful by the time he came to Hong Kong on a two-way permit as I found.  The 1^st Plaintiff told the Police that he was able to earn RMB 3,000 per month even when he did part-time work on the Mainland.  I propose to adopt RMB 3,000 as his pre-accident monthly income for the purpose of the assessment that has been rendered the more difficult by his lies and his incomplete and questionable evidence.  Having previously rejected his assertion of employee status, and having found that he was more likely than not engaged on a loss-making shrimp farming business on the Mainland at the time of the accident, the evidence relating to his part-time income seems the least suspect.

39. The joint orthopaedic experts opined that the reasonable sick leave period in this case should either be 12 or 14 months.  I am prepared to allow a period of 13 months by the end of which the 1^st Plaintiff should if he had made any genuine effort to rejoin the workforce have returned to gainful work.  The 1^st Plaintiff’s case is that with his injuries and reduced capacity for work, he would only be able to find work such as a clerk with a monthly remuneration of RMB 800 to 1,000.  No PRC statistics on wages were adduced.  His professed reduced earning power seems unduly pessimistic, given his claim of achieving even part-time earnings of RMB 3,000 a month.

40. I hold that the 1^st Plaintiff has made no reasonable or any genuine effort to rejoin the workforce at all.  Attempts at being re-employed he said had been made with no success.  From the evidence, all he did was to ask amongst his friends and acquaintances if they knew of any work opportunity.  It seemed he did not himself make any conscious effort to go out and seek work.  He cannot in these circumstances expect to be compensated as claimed.

41. In respect of the sick leave period of 13 months which I consider to be fair and reasonable, I would award the 1^st Plaintiff $44,070, being RMB 3,000 per month times 13 months times 1.13 (the accepted RMB to HK$ conversion rate).

42. As I find that the 1^st Plaintiff could and should have returned to work after the expiry of sick leave and should have been able to earn RMB 3,000 a month, there will be no award for the remaining period to the date of the assessment under this head of claim even accepting that he has some residual disability, particularly the shortening of the leg and the resulting slight limp.  My conclusion has been fortified by the medical evidence.

VII. Loss of Future Earnings

43. On the evidence, I do not consider that an award either necessary or proper, given my findings in this case.  Before moving on, I assess that should damages be appropriate, a multiplier of  10 seems apt with the present age of the 1^st Plaintiff being 45.  As there is no discernible or proven diminution in earnings on account of his injuries given the unreliability of his evidence, no multiplicand can be identified.

VIII. Loss of Earning Capacity

44. Compensation under this head of claim is appropriate only if there is evidence that the 1^st Plaintiff has been exposed to an added risk of longer periods of unemployment between jobs in the future consequent upon his injuries and residual impairment: Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.  There exists such a risk given the medical findings.  I consider that an award of  $100,000 as claimed wholly justified.  There will be an order to that effect accordingly.

IX. Special Damages

45. There is a claim of RMB 51,779.8 for past medical expenses in the PRC.  Receipts are available for RMB 30,298 only.  I shall allow the reimbursement of the receipted amount as reasonable and justified.  It amounts to $34,236.74

46. The travel and visa expenses, respectively RMB 11,770 and $2,000 were conceded as having been incurred by the 1^st Plaintiff’s visits to Hong Kong to give instructions to his legal advisers.  These are recoverable not as special damages but rather as costs of the litigation.  This aspect of his claim therefore fails.

47. The claim for tonic food at RMB 3,000 is reasonable and will be allowed in full.  It comes to $3,390 as converted

48. In respect of the claim for the care given to the 1^st Plaintiff by his wife, it is said that she had to surrender a part-time job in clothing to look after him.  She would bathe, prepare meals and assist her husband when he moved about.  The amount sought is based on a 20-hour week for 12 weeks at the rate of $60 an hour.  In my view, the evidence was arbitrary, tenuous and thoroughly lacking in particulars.  As was rightly submitted by the 3^rd Defendant, by November 2002, the 1^st Plaintiff had recovered sufficient mobility to walk with a single crutch with mild pain.  Further, it was likely that the wife did all the housework including preparing meals.  This claim is therefore unmeritorious.

49. The claim for DIY also fails as the medical evidence did not preclude normal household DIY.  I fail to see why the 1^st Plaintiff is now incapable of running errands of the kind he used to undertake such as moving LPG cylinders or unblocking toilets given the state of the medical evidence.

50. $200 a month with a multiplier of 17 years has been sought for future traveling expenses.  It is submitted that the 1^st Plaintiff continues to suffer from reduced tolerance on prolonged standing or walking and an allowance for travel should be factored in.  The claim is wholly unjustified on the evidence and is rejected without more.

X. SUmmary of Awards

51. Summary of Awards:

XI. Conclusion

52. There shall be judgment in the sum of $346,696.74 with interest at 2% p.a. on the award for PSLA from the date of the service of the Writ until the date of judgment.  Pre-trial loss of earnings and other special damages shall carry interest at half the judgment rate from the date of the accident until the date of judgment.

53. There will be no reduction in the interest payable on the damages awarded as urged by the 3^rd Defendant.  Albeit the accident occurred 7.5 years ago, there has been no unjustified, inordinate or inexcusable delay in prosecuting the claim.  The suit commenced in August 2005 with the 1^st Plaintiff having to travel to Hong Kong to give instructions.  The criticism is unjustified.

54. As for costs, these shall be nisi with 14 days to apply in favour of the 1^st Plaintiff against the 3^rd and 4^th Defendants, the 4^th Defendant having participated fully in the assessment.  The 4^th Defendant allied itself with the representations of the 3^rd Defendant and made submissions of its own in an attempt to minimize the 1^st Plaintiff’s claims.  In those circumstances, it is right and proper that it should also bear the costs consequences.  There shall be Legal Aid Taxation of the 1^st Plaintiff’s own costs.