SHEHZAD MOHAMMAD v. TIM FUNG STEAM LAUNDRY (SHATIN) CO LTD

HCPI 842/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 842 OF 2014

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JUDGMENT

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Introduction

1. On 26 August 2014, the plaintiff, Mr Shehzad Mohammad, issued the writ against the defendant, Tim Fung Steam Laundry (Shatin) Company Limited, for damages for personal injuries allegedly sustained on 10 September 2011.

2. The plaintiff was granted legal aid and became an aided person as from 8 October 2014.

3. The legal aid certificate was discharged on 19 January 2016.

4. By a Notice to Act in Person dated 21 January 2016, the plaintiff gave notice to act in person in place of solicitors assigned to act for him by the Director of Legal Aid.

5. The plaintiff was employed by the defendant as a laundry worker starting on 6 September 2011.

How injury to the plaintiff allegedly came about

6. The plaintiff’s case was that on 10 September 2011 he was attending to a washing machine which had automatically stopped after the washing cycle had been completed.  He alleged in §4 of his Amended Statement of Claim dated 14 April 2015 that:

“The Plaintiff pulled the machine door open and put his right hand into the machine to grab the wet clothes whilst his left hand was on the edge of the opening of the machine to give him support as he tried to remove the wet clothes that were all tangled and very heavy. The Plaintiff tried to remove the wet clothes but it was too difficult. The Plaintiff pressed one of the two buttons situate at the left hand side of the machine as the wet clothes were tangled and too heavy to lift with his left hand to slowly rotate the drum of the machine to help to untangle the wet clothes. His right hand and arm was inside the machine and suddenly the drum inside the machine rotated quickly and he could not remove his right hand in time and the wet clothes became entangled around his right hand and arm. He could not remove his right arm and his wrist and forearm became strapped and he felt severe pain.”

7. In his witness statement dated 11 June 2015, he alleged that:

(1)  He worked full time, then part time and then full time again from 2010 to August 2011 as a laundry worker for another laundry, namely, New Dragon Laundry Limited.

(2)  He sought to distinguish his experience working on similar machines by alleging that he operated “the drying machines only” at New Dragon Laundry Limited whereas he was operating washing machines at the defendant.

(3)  “My right arm was being twisted forward by the movement of the drum and so I was forced to bend forward and I could not reach up with my left hand to press any buttons to stop the drum rotating” (§6).

(4)  “A co‑worker then stopped the drum of the machine from rotating by switching off the main button of the machine at the top of the machine.  Two co‑workers helped to remove the wet clothes wrapped around my right arm and hand” (§7).

(5)  “Whilst I was working at New Dragon Laundry a man from the Labour Department came and told all the workers that they should not operate the drying machines whilst the drum of the machine was rotating” (§14).

Willingly and knowingly placing himself in a position where harm might result

8. The plaintiff was asked in the course of his testimony the reason for not operating the drying machine while the drum was rotating and the answer he gave was that it was dangerous to do so.  He accepted that as it was dangerous with drying machines, it was more dangerous with washing machines.

9. On the plaintiff’s own case, he had been expressly warned and instructed by the Labour Department not to operate the drying machine while the drum was rotating.  He knew that it was dangerous to do what the Labour Department instructed him not to.  He knew that it was more dangerous with washing machines.  Why then did he do what the Labour Department told him not to?  He alleged that he had told the defendant’s foreman of the risks but the foreman said he was employed to work, not to talk.  This allegation, if true, should have been pleaded.  But it was neither pleaded nor included in his witness statement.  I find that it was the plaintiff’s recent invention and I disbelieve him.

10. I agree with Mr Leon Ho, counsel for the defendant, that the plaintiff willingly and knowingly put himself in a position where harm might result.  He could not complain when harm did allegedly result.  The plaintiff’s action fails on the plaintiff’s own case and must be dismissed.

Alleged injury to the right arm

11. There are other reasons for dismissing the plaintiff’s action.

12. The plaintiff alleged in §6 of his witness statement that he “could not reach up with [his] left hand to press any buttons to stop the drum rotating”.  He also alleged that his left hand was on the edge of the opening of the machine to give him support.  What he did not tell the court in his witness statement was that the drum would rotate only when one of the two buttons on the left hand side of the machine was pressed.  His left hand could not be “on the edge of the opening of the machine”.  He had to be pressing one of the two buttons on the left hand side of the machine to activate the rotating function and keep it rotating.  He did not have to press any button to stop the machine from rotating.  All he had to do was to stop pressing any of the two buttons on the left hand side.  In my judgment, he was feigning helplessness.  His pleaded version did not accord with the design of the washing machine.  He did not tell the court what actually happened.

13. He made a bare assertion that the washing machine was malfunctioning.  What his co‑worker allegedly told him was not admissible evidence of the truth of what he was allegedly told.  There was not an iota of evidence or admissible evidence that the machine was malfunctioning and I reject his assertion.

14. The plaintiff claimed that his arm sustained injuries.  He has not explained how or why his right arm allegedly came to be inside the drum of the washing machine and was trapped up by wet clothing.  The clothing was allegedly all tangled up already.  He was allegedly trying to untangle the clothing, not to wrap the clothing round his right arm.  The arm had no useful purpose to serve in untangling the all tangled up clothing.  He gave no or no credible reason why his right arm was inside the drum.  There is no medical evidence to support his claim of injuries to his right arm.  I shall come back to this later.  In my judgment he made up his claim of injuries to his right arm to inflate his claim.

Medical evidence

15. The plaintiff went to the United Christian Hospital on numerous occasions in September and October 2011.  On each occasion, he requested sick leave certificate.  That seemed to be his main concern.

(1)  He was examined at the Accident and Emergency Department of the United Christian Hospital on 10 September 2011.  There was no record of any injury to his right arm.  X‑ray showed no fracture.

(2)  He went to the United Christian Hospital twice on 19 September 2011.  X‑ray showed no fracture.  There was no record of any injury to his right arm.

(3)  X‑ray on 25 September 2011 showed no fracture. Nothing abnormal was defected in respect of his right wrist.  Range of motions of the right elbow was full.  Power was full.  There was no record of any injury to his right arm.

(4)  There was no record of any injury to his right arm in the medical notes for his visit on 29 September 2011.

(5)  There was no record of any injury to his right arm in the medical notes for his visit on 8 October 2011.

(6)  There was no record of any injury to his right arm in the medical notes for his visit on 12 October 2011.  AROM was good and there was full PROM.  There was no bruise/deformity.

(7)  There was no record of any injury to his right arm in the medical notes for his visit on 15 October 2011.  His handgrip was full.

(8)  There was no record of any injury to his right arm in the medical notes for his visit on 18 October 2011.  The medical officer recorded “Resisted to forced (or full) flexion R elbow”.

(9)  There was no record of any injury to his right arm in the medical notes for his visit on 23 October 2011.  The medical officer recorded “ROM poor 0–90 but unreliable because of obvious voluntary resistance” and “Judging from the clinical course and date, the potential fracture is probably healed now”.

16. The consultation on 5 November 2011 was in respect of injury to his left limb which had nothing to do with the injury allegedly sustained on 10 September 2011.  The plaintiff sought treatment for the attack allegedly by three men with fists and kicking on 2 November 2011.

Medical examination on 19 April 2012

17. On 19 April 2012, the plaintiff was examined by Dr Chun Siu Yeung, the medical expert instructed by the defendant.  His report is dated 16 June 2012.

18. Dr Chun recorded the following measurements in §28 of his Report:

“Measurements:		Right	Left
Arm girth 15 cm from olecranon		28	29	cm
Forearm girth 10 cm from olecranon		26	26
Active shoulder motions:	Flexion	90	180	deg.
	Extension	20	40
	Abduction	85	120
	Adduction	0	95
	Ext. rotation	40	90
	Int. rotation	10	60
Elbow:	active flexion/‌extension range	0 – 120*	0 – 150
	* observed to be more prior to this measurement
Forearm:	Pronation	Full	Full
	Supination	Full	Full
Wrist active motions:	Flexion	40	50
	Extension	30	70
	Ulnar deviation	0*	40
	Radial deviation	10	30
	* observed to be better prior to this
Handgrip power by Jamar:	I	1	19	kg.
	II	2	30
	III	1	33
	IV	1	28
	V	1	24	”

19. Shoulder problem came out of the blue.  No complaint is made of shoulder injury in §4 of the Amended Statement of Claim. There is no record of any complaint of shoulder problem in the plaintiff’s numerous visits to United Christian Hospital in September and October 2011. The plaintiff underperformed in respect of his right shoulder and other measurements.  Such underperformance was deliberate.

20. For reasons given by him in his report, Dr Chun opined in §41 of his report that the plaintiff “has greatly exaggerated his pain and disability”.  I am in general agreement with Dr Chun’s opinion and the reasons given by him.

Joint medical examination on 13 January 2015

21. The plaintiff was examined by Dr Chun jointly with Dr Lee Po Chin, the medical expert instructed by the plaintiff, on 13 January 2015.  Their joint report is dated 16 March 2015.  I note that there was no report by Dr Lee alone in the trial bundles.

22. The following measurements were recorded in §30 of the joint report:

“ Measurements:		Right	Left
Arm girth (10 cm from crease)		28.5	28.5	cm
Forearm girth (6 cm from crease)		26.5	26.5
Wrist girth (cm)		18.6	18
Active shoulder motions:	Flexion	80	180	deg.
	Other movements very limited because of pain
Elbow:	Active flexion/‌extension range	5°–30°	0°– 140°
Forearm:	Pronation	Full	Full
	Supination	Full	Full
Wrist active motions:	Flexion	−5	60
	Extension	20	70
	Ulnar deviation	10	50
	Radial deviation	10	25
Handgrip power by Jamar:	I	0	23	kg.
	II	0	36
	III	0	34
	IV	0	31
	V	0	22	”

23. For reasons given by Dr Chun in the joint report, he opined in §49 that the plaintiff “displayed features of gross exaggerated response and inconsistencies”.  I am in general agreement with Dr Chun’s opinion and the reasons given by him.

24. It is plainly from the medical records that the plaintiff was malingering.

Credibility of the plaintiff

25. For reasons given above, I hold that the plaintiff is not a credible witness and his testimony is not reliable.  There is no or no other evidence in support of his claim.  I dismiss his action.

Amount of damages

26. In view of my conclusion on liability, the question of the amount of damages does not arise.

27. In case I am wrong on liability, I shall deal briefly with the amount of damages.

28. In his Revised Statement of Damages dated 11 June 2015, the plaintiff claims a total of $2,799,687.60.

29. I am in general agreement with the submission of Mr Ho on quantum in his Opening Submission for the defendant.

30. I accept Dr Chun’s evidence that the plaintiff should have fully recovered by mid‑October 2011.  The public hospital medical records indicated that he had recovered by about mid‑October 2011 and that he started malingering on 18 October 2011.  The sick leave certificates from then onwards were unreliable by reason of the plaintiff’s malingering.  I assess the plaintiff’s pre‑trial loss of earning for one month at $7,410.

31. The plaintiff went to Pakistan in December 2012 to 19 March 2013 to be married.  He went to Pakistan again from 6 March to 6 June 2014.  Any loss of earnings during these six months plainly has nothing to do with the injury allegedly sustained.

32. There is no post‑trial loss of earnings and no loss of earning capacity.

33. Mr Ho conceded $1,500 for special damages.

34. I assess pain, suffering and loss of amenities at $80,000.

35. The total of these three sums, ie $7,410 + $1,500 + $80,000 is less than the amount received under Employees’ Compensation Ordinance, Cap 282, of $116,386.40.

36. Even without deduction on account of the plaintiff’s contributory negligence of at least 75%, the amount of damages is nil.

Costs and disposition

37. Malingering is relatively easy for a plaintiff and difficult for a defendant to detect and resist.  Malingering is putting forward a claim knowing that the claim as asserted is false.  The court should express its strong disapproval.  Costs should be awarded on indemnity basis.

38. I dismiss the plaintiff’s action.  I make an order nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A, that the defendant’s costs be taxed on an indemnity basis and paid by the plaintiff to the defendant.