WONG HAK MAN v. HARVEST ENGINEERING DEVELOPMENT LTD AND ANOTHER

HCPI 869/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 869 OF 2006

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J U D G M E N T

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Overview

1. The Plaintiff seeks damages for injuries he sustained in an industrial accident at a construction site on 15^th November 2003 against both defendants.  The Plaintiff was employed as a construction site worker by the 1^st Defendant, a sub-contractor of the 2^nd Defendant, the contractor responsible for the site where the Plaintiff worked and met with the accident.  Judgment on liability was entered against the defendants on 21^st May 2007 with costs and damages to be assessed.

The Plaintiff’s Injuries, Diagnosis and Treatment

2. The Plaintiff, aged 50 at the time of the assessment in April this year, having been born on 20 October 1957, was injured when a skip fell onto his right foot and pressed against the upper part of his body.  He lost consciousness for several minutes and was taken to Tuen Mun Hospital (“TMH”) for emergency treatment.  On admission, he was conscious, his Glasgow Coma Scale assessment being 15/15.  No neurological deficit was found.

3. Examination revealed that he had suffered abrasions over the left side of his neck, abdominal wall, left elbow, right thigh and right ankle.  Swelling and tenderness over the right ankle with reduced range of movement was also diagnosed.  X-ray disclosed a fractured talus in the right ankle.  A Computerized Tomography scan revealed a thin dense area over the left frontal lobe.  This subdural haematoma was conservatively treated and a further CT scan on the following day was normal.  On 19 November 2003, he was transferred to the orthopaedic ward of the same hospital for further management.

4. The ankle fracture was treated by open reduction and screw fixation on 27 November 2003.  On 3 December 2003, the plaintiff was admitted to Pok Oi Hospital (“POH”) for physiotherapy and rehabilitation and eventually discharged on 6 January 2004 with the need for crutches.

5. He was then followed up at outpatient clinics of the Department of Neurosurgery (“ND”) and the Department of Orthopaedics & Traumatology (“OTD”) of TMH.  There were 16 sessions of physiotherapy spanning January to May 2004.  Sick leave was given until 26 June of the same year and again from 26 June 2004 to 13 April 2007.  Meanwhile, the Plaintiff complained of persistent headaches, poor memory, dizziness and tinnitus.

6. Two Ear, Nose & Throat experts, Drs. Lo Siu Sing and Henri KL Chu jointly examined him, diagnosing that he had suffered some hearing loss of a mild grade in both ears and tinnitus as a highly probable result of the accident.  The Plaintiff had first complained about his auditory problem after the accident as can be seen in the medical records.  In any event, his bilateral hearing deficit being mild is relatively insignificant given his other complaints.  On its own, no sick leave would have been warranted.

7. As for the talar fracture, no further surgery was indicated.  The medical report dated 10 June 2004 of Dr. Wong Wing-keung of OTD, TMH (“Dr. Wong”) stated that the orthopaedic condition had by then reached ‘maximal medical improvement’.

8. A joint orthopaedic examination of the Plaintiff by Dr. Lau Man Tsang and Dr. Cheng Hung Fai resulted in a report dated 8 September 2006 (Bundle 1, pp 147-154).  Confining their opinion to matters within their expertise, the two surgeons observed that the Plaintiff walked with a stick in his left hand, that he could only squat half-way down and was unsteady standing on either foot, or walking on his toes or heels, that there was no muscle wasting of the right lower limb, that there was mild swelling of the right ankle joint, that both the scar and the right ankle joint were tender, and that the ranges of movement of the right ankle joint was about half of that of the left side.  They opined that the mode of treatment given to the plaintiff was reasonable and the result satisfactory.

9. They considered that the prognosis of the talus fracture was also satisfactory with no avascular necrosis of the talus or osteoarthritis of the ankle joint.  Further significant deterioration of the ankle was thought unlikely.  They agreed that there might be residual aches and pains and some stiffness in the ankle and went on to state:

“However, we feel that, for a “normal” person, given time, gradual resumption of activities, exercise, and a sensible approach to work, Wong should be able to resume work, and perhaps, his previous pre-accident occupation.  In this aspect, Dr Lau opines that Wong should not resume any heavy manual work.  As we see, the major problem with Wong is his mental or psychiatric state.  Wong does not have the desire or the will to do anything.  We recommend a psychiatric evaluation and psychiatric treatment”.

10. A 4-5% whole person impairment was assessed for the orthopaedic condition.

The neurological aspect

11. A joint neurological examination was conducted by Dr. Robert TK Ho and Dr. Edmund KW Woo in May 2006 (respectively “Dr. Ho” and “Dr. Woo”).  Their report dated 14 November 2006 can be found at Bundle 1, page 155 et seq.  Their opinions differed.

12. Dr. Ho found that the Plaintiff has, as a result of the accident, developed moderate to severe symptoms of post concussional syndrome.  Its manifestation was chronic disabling headaches and a moderate global impairment in higher mental function.  He stated that the Plaintiff has developed severe psychiatric sequelae and has been treated for depression since June 2004.  He believed that the latter would at least in part account for his impairment of higher mental function, namely pseudo-dementia.  Dr. Ho opined that it was “highly unlikely that (the Plaintiff) would be able to return to any form of gainful employment in the foreseeable future”, a view not apparently shared by Dr. Woo.  Dr. Woo stated that “from the head injury perspective, he should be able to resume his pre-accident job as a labourer on construction sites with no loss of earning capacity”.  Dr. Woo did however accept that the Plaintiff has suffered post concussional syndrome as a result of his head injury in the accident, but he would only describe the condition as mild.

13. In commenting on the Plaintiff’s demonstrated moderate to severe weakness in all the muscles of his 4 extremities, Dr. Woo commented (at paras. 7, 8, 11 and 12 of his part of the report):

7. When he was assessed at the neurosurgical outpatient clinic within the first few months of his accident, he had no focal neurological deficits and there was no weakness in his extremities.  He now demonstrated moderate to severe weakness in all his extremities.  Such delayed deterioration in motor power was most inconsistent with traumatic brain disease, whose natural history is one of gradual recovery with the passage of time.

8. The above discrepancies and inconsistencies defied neurophysiological principles and they raised the strong suspicion that his deficits were either feigned or grossly exaggerated for the purpose of the examination.  They cast serious doubt on the genuineness and integrity of his complaints.

11. Most recovery of neurological functions after a mild head trauma occurs during the first 6 months of the accident, although some further, minor improvement can continue up to 1 year.  With Mr. Wong’s mild head injury, he should have recovered sufficiently by May 2004 (i.e. 6 months after the accident) to be able to resume gainful employment.

12. It has been alleged that he has depression, paranoid ideas and abusiveness towards his family.  As he had only a mild head injury without any parenchymal brain damage, there is no neurophysiological basis for these emotional symptoms.  The causal relationship of his depression, if any, with his head injury is extremely tenuous.

14. Mr. Hemmings, counsel for the Defendants contended that the opinion expressed by Dr. Woo was to be preferred to Dr. Ho’s particularly in regard to the Plaintiff’s ability to return to gainful employment.  I agree.  Dr. Woo’s well-reasoned findings are more persuasive in my considered judgment and are to be preferred.

The Psychiatric Evidence

15. The joint psychiatric report of Dr. K Singer (“Dr. Singer”) and Dr. Lo Chun Wai (“Dr. Lo”) is dated 13 June 2006.  It resulted from an examination of the Plaintiff and an interview with his wife on 23 May 2006.  There was some significant divergence of opinion between the two experts although they agreed that the Plaintiff was suffering from a degree of post concussional syndrome and depressive episode as a consequence of the mishap.

16. Dr. Singer opined that the pattern of complaints was typical of post concussional syndrome and depressive episode.  However, he added that the Plaintiff’s demonstrated inability to tell the ages of his parents and of his children and the number of siblings he had and his difficulty with the simplest of calculations “suggest a level of cognitive impairment that is significantly lower than that suggested by his ability to give an account of the details of the accident and subsequent development of his condition”.  As respects his claim of hearing voices and feeling persecuted, Dr. Singer stated “because of the inconsistencies I doubt he has significant psychotic symptoms as suggested by the “voice” and ideas of persecution”.  He then went on to conclude “on balance in my opinion there is some exaggeration but he does have a core of genuine symptoms.  Taking this into account I rate the severity of his PCS and Depressive Episode as mild to moderate rather than moderate as presented”.

17. On post concussional syndrome, Dr. Lo observed that its persistence beyond a year of the head trauma was more likely due to psychological rather than physical causes.  It is as well to remember that the accident had taken place over two years previously.  He said that “for most people, the injury is self limiting and permanent cognitive, psychological and psychosocial problem due to the biological effects of the head injury is very uncommon”.

18. Unlike Dr. Singer, Dr. Lo considered that the Plaintiff’s symptoms of post concussional syndrome “is caused more by his “Depression” and adoption of a sick role than head trauma and is likely to improve with psychiatric treatment and settlement of his litigation”.

19. He agreed that the Plaintiff was suffering from a moderate depressive episode as a result of the accident and his injuries, but that he “has been exaggerating his symptoms, some of which if present, are due to his Depressive Episode and are amenable to psychiatric treatment”.

20. As for the prognosis of the psychiatric disability, Dr. Singer commented:

“Improvement of the PCS is usually possible up to three years after the accident.  As it is now two and half years post-accident it is unlikely he will improve much further in his PCS.  His Depressive Episode is likely to improve further with more intense treatment, especially given after litigation. …

Without continued treatment he will relapse into severe symptoms.  With continued and especially the more intensive treatment I recommend below after the settlement of litigation his symptoms have a good chance of becoming mild at the end of the treatment period”.

21. He then offered his view on treatment with which Dr. Lo agreed.

22. Dr. Lo opined that the Plaintiff’s post concussional syndrome would improve as his depressive symptoms are removed after intensive psychiatric treatment and resolution of the litigation.  As for the depressive episode, he thought that there was a good chance of improvement with it becoming mild in nature following treatment and conclusion of the suit.

23. As to capacity for work, both doctors agreed that prior to treatment he was fit for part-time light unskilled manual work such as cleaner, odd job person, car park attendant, watchman but with distress, absenteeism and inefficiency on account of headache, fatigue, depressed mood, anxiety and low motivation.  Following successful medical intervention, the Plaintiff should be able to return to his pre-accident work with less or little distress, absenteeism and inefficiency.  Their conclusion turns purely on the psychiatric aspect of the case.  Loss of earning capacity then assessed at 20% should be reduced to 3% after treatment.  Similar percentages of impairment of the whole person before and after treatment were indicated.

The Plaintiff’s evidence

24. The English translation of his witness statement made on 13 June 2007 appears at pages 76-81 of vol. 1 of the Trial Bundle.  Having verified the truthfulness and accuracy of its content, the Plaintiff adopted the statement as his evidence.

25. At the time of the hearing it remained his case, albeit some four plus years have elapsed since the accident, that he continued to suffer from frequent debilitating headaches sometimes lasting for hours and not always amenable to analgesics, poor memory, blurred vision, insomnia and paranoia, pain in the right leg and ankle, dizziness, tinnitus and pain in the chest (but now apparently all over his body in his testimony) when breathing.  He reiterated his inability to return to work as a result of this litany of complaints.

26. The Plaintiff approached the witness box aided by a walking stick and walking very slowly.  He did not appear to be in pain.  His demeanor was sullen, almost withdrawn as he kept his eyes generally downcast.  He maintained that he was unable to walk for lengthy periods without feeling pain in the right ankle and that the walking stick remained indispensable.  He would resort to the walking aid whenever he felt the ankle acting up.

27. When the Plaintiff presented himself for the joint neurological examination in May 2006, Dr. Woo observed that “he could walk unaided though with a drag of his right lower extremity.  He held his cane with his right hand when he entered the consulting room and when he departed”.  By 17 October 2006 when video surveillance began, his physical condition had apparently improved quite significantly.  At the commencement of the video recorded that day, he was seen to walk with a normal stride although slowly.  His gait seemed normal.  There was no discernible difficulty in getting on a bus.  He stepped up into the bus on his right foot with a walking stick in his left hand.  There was no limping or any dragging of the right foot.  The medical evidence confirmed there was no muscle wastage in his injured leg, suggesting that both legs were functioning normally in supporting his body weight.

28. On his subsequent excursions in the vicinity of his residence that were captured on video, his walking gait appeared normal.  He was able to sit, stand and walk unaided, and even managed to negotiate steps with ease.  Although he did not engage in vigorous activity, the presentation was nothing out of the ordinary.  All this is unsurprising given the medical evidence that the talar fracture had healed completely by June 2004 according to Dr. Wong.  X-ray showed that the fracture united without displacement. The consensus was that the talus had reunited with no further attention indicated.

29. The video evidence is at odds with his present complaints and difficulties.  Both Dr. Singer and Dr. Lo concluded that the Plaintiff had exaggerated his symptoms.  I find myself driven to the same conclusion.

Pain, Suffering and Loss of Amenities

30. The physical injuries sustained by the Plaintiff in the accident were not especially serious.  This is not intended to belittle the undoubted pain, discomfort and mobility impairment that he must have experienced at the time and during convalescence.

31. His head injury was relatively minor although he was unconscious for a short period.  In any event, by the time of his admission to hospital, he had regained consciousness and apparently was fully alert when examined.  The knock to the head resulted in a small haematoma that wholly abated with conservative treatment.  The later CT scan had disclosed no hyperdense area.  No deficit in mental function was noted but fatigue, anxiety and low motivation were discerned in subsequent examinations.

32. I accept that the Plaintiff did experience dizziness and occasional headaches lasting for minutes and that the prescribed medication did not always offer relief.  I also accept that his complaints of headaches were genuine.  However, over time, it seemed such episodes had not only not diminished in frequency and intensity but had become more disturbing and frequent often lasting for hours on his evidence.  I have no hesitation in concluding that the Plaintiff has deliberately exaggerated his complaints to enhance his claim for damages.

33. Dr Woo, the neurologist whose detailed reasoning and findings I have hitherto indicated preference for, reached a similar conclusion.  Dr. Singer and Dr. Lo having examined the Plaintiff expressed similar sentiments when they independently noted that he was given to exaggerating his symptoms.  These are experienced professionals well attuned to picking up such nuances.  Their views cannot all be erroneous.

34. The video evidence clearly showed the Plaintiff going about his daily business, walking unaided in a normal fashion and with no obvious difficulty in getting on a bus.  His gait was unexceptional.  He was also captured in normal conversation with a female.  He moved about unhurriedly, engaging stairs with no problem.  He did not appear to be in pain while in motion or at rest.  His movement was fluid with no hint of the body weight being shifted to the uninjured leg.  There was no observable restriction in his mobility and certainly no limping or dragging of either foot.  All this was in stark contrast to the appearance he presented at the assessment hearing.  He walked extremely slowly supported by a cane in his right hand on which he seemed to heavily rely.  There was no confidence in his movement.  He was soft-spoken, appeared crestfallen, and averted looking directly at counsel or the bench as he testified.  Throughout his examination, he kept his head down.  His was a sorry figure.  To borrow from Dr. Lo, there was an “an adoption of a sick role”.  It was feigned at best and totally unconvincing in my judgment.

35. The multiple abrasions on his body healed uneventfully and quickly.  The fractured talus also responded well to treatment.  His recovery was aided by a total of 16 physiotherapy sessions and home exercises.  By 19 March 2004, “full weight bearing walking was allowed”.  According to Miss Rita Tse, the physiotherapist, “the patient was able to walk unaided with limping gait.  He was discharged on 3 May 2004 as suggested by the doctor in charge…”.

36. By 10 June 2004 the Plaintiff’s orthopaedic condition had plainly attained “maximal medical improvement”.  When the orthopaedic experts examined him on 24 August 2004, they found that “the ankle joint was normal”.  I accept that he had continued to experience some residual stiffness, minor aches and pain and tenderness in the ankle.  It was an uncomplicated ankle injury that healed well with no significant residual impairment other than the occasional discomfort and pain that should recede with time.  The ankle was fully functional.  There was no indication of arthritic changes in the joint and the leg’s muscle integrity was unaffected.

37. That the Plaintiff continues to suffer a small degree of hearing impairment and tinnitus is not disputed.  It is however of an order not affecting his ability to work or enjoyment of life.

38. I also find that as a result of the accident, the Plaintiff has suffered post concussional syndrome and depressive episode of a mild to moderate nature.  The condition is nonetheless susceptible to treatment on the psychiatric evidence.  Following treatment and resolution of these proceedings, matters should considerably improve for him on the psychiatric evidence.  His ability to return to work after treatment cannot be contentious in my judgment. 

39. The Plaintiff was discharged from hospital after a month and sick leave eventually expired on 13 April 2007.

40. On the issue of quantum, a number of decisions, some more recent than others, were cited with none of them featuring the full extent of the Plaintiff’s complaints and injuries.  The precedents from the serious injury category, facts sensitive as they invariably are, do nonetheless offer some assistance in determining the appropriate level of award in the instant case.  The cases referred to were: Lawati Bhawani Bikram v Tin Kau Contractors Joint Venture, unreported, CACV 3/2002, 25 September 2002; Mo Hee Yuk v Gammon Skanska Ltd., unreported, HCPI 502/2004, 18 May 2006; Chan Chin Shun v Yau Sin Chung, unreported, HCPI 90/2005, 28 March 2006; Lam Hok Fai v Chan Sai Kit, unreported, HCPI 377/2003, 29 October 2004; Lee Wai Kin v Cheng Hon Kit Jacker, unreported, HCPI 1488/2000, 6 July 2002; Yan Kwok Yue v Dong Shu Kei Beau, unreported, HCPI 923/2003, 22 January 2002; Ling Man Kuen v Chow Chan Ming & Holake (Hong Kong) Ltd, DCPI 1445/2005; Hau Kit Ho v Starway International Development Ltd trading as Tao Heung Supper 88, unreported, DCPI 329/2002; Kot Yik Kam v Kwok Kam Hung & anr, unreported, HCPI 292/2004.

41. The plaintiff is entitled to reasonable and fair compensation for his injuries.  In the circumstances of the case, I shall award him $350,000 under this head of claim.

Loss of Earnings

Pre-trial Claim

42. At the time of the accident, the Plaintiff was earning $14,253 each month.  As noted earlier, sick leave was granted to 13 April 2007, an unbroken period of some 41 months.  The Plaintiff has not worked since the accident nor has he made any effort to do so.

43. I have carefully evaluated the medical evidence in their various aspects, namely, psychiatric, neurological and orthopaedic, and the effect of these diverse conditions on the Plaintiff’s ability to resume gainful employment.  The relatively minor hearing disability having no bearing on working capacity is ignored for present purpose.

44. The Plaintiff would have the court accept that he is no longer fit for employment.  Dr. Ho’s prognosis was equally unoptimistic.  In my considered judgment, such a dismal view simply does not sit well with the weight of the medical evidence adduced.

45. Counsel for the Plaintiff, Mr. Lee urged the court to accept that the Plaintiff ought not be expected to work at all prior to the expiry of sick leave as the doctors ordering such leave were treating the Plaintiff and therefore must be taken to have made informed and appropriate decisions.  In view that the Plaintiff has as yet to commence psychiatric treatment as proposed by Dr. Singer and Dr. Lo, I am prepared to accept this contention.

46. In the joint psychiatric assessment of 13 June 2006 both eminent psychiatrists opined that before treatment, the Plaintiff was considered fit for part-time unskilled manual work.  Post-treatment prognosis was considerably more positive as summarized above.  The orthopaedic surgeons, Dr. Lau and Dr. Cheng stated in September 2006 that the Plaintiff should be able to resume work and ‘perhaps, his previous pre-accident occupation” given time.  They did not venture to suggest a time frame.

47. The reality is that the Plaintiff should have taken a more pro-active role by taking steps to have his psychiatric condition seen to within a reasonable time of the diagnosis as advised by the psychiatrists.  This he did not do but rather was content to simply sit back and wait.  He is duty bound to mitigate his loss as Mr. Hemmings for the Defendants has submitted quite appropriately.

48. The psychiatrists recommended in June 2006 20 sessions of psychotherapy with medication at fortnightly intervals.  The course should therefore last about 10 months.  Had the Plaintiff embarked on such treatment, it being not only in his own interest to get well at the earliest opportunity but also his duty to mitigate, his condition should have markedly improved as anticipated by the psychiatrists by about April 2007 when he should have been able to look forward to returning to work in the construction industry.  April 2007 coincided with the expiry of sick leave.

49. Since making his home in Hong Kong in 1979, the Plaintiff has worked continuously in construction until the accident.  His experience of working on construction sites as a miscellaneous or odd job worker is admitted although one accepts that he has acquired no particular skills in consequence.  He should therefore have no difficultly in finding work through his contacts had he been so minded.

50. At the time of the accident, the Plaintiff was directing and controlling a skip’s cement outlet.  He and his co-workers were engaged upon pouring cement.  His immediate task was not particularly demanding although his job did require much moving of building materials about the construction site.  Dr Lau expressed the view that the Plaintiff might not be able to tackle heavy manual work.  He did however accept that the Plaintiff could resume his pre-accident occupation.  Mr. Hemmings submitted that the talus was not a weight bearing bone and therefore full recovery of the ankle injury should enable the Plaintiff to return to work as before.  I agree.

51. Having found that he ought to have been in a position to resume work at the end of the sick leave period, I am prepared to allow him an additional 2 months to secure employment.  Hence by about mid June 2007 or the latest 1 July 2007, he should be up and working once more.  Thereafter, I hold that there should be no loss of earnings at all to the date of the assessment and beyond.

52. For past loss of earnings, his damages may be assessed as follows:

   Date of Accident to end of sick leave = 41 months + 2 months for finding work = 43 months.

   43 months x $14,253 = $612,879

53. The associated loss of MPF would be $612,879 x 5% or $30,643.95.

Post-Trial Loss of Earnings

54. In light of my previous finding, there shall be no award under this head.  The agreed 8 years’ purchase for assessing future loss of income is apt if such loss can be demonstrated.

Psychiatric Treatment Cost

55. The course of treatment recommended by the psychiatrists costs $25,000.  As Mr. Hemmings no longer questioned its necessity and quantum, I shall award this sum.

Loss of Earning Capacity

56. An award would only be appropriate under this head of claim if the Plaintiff’s injuries leave a legacy of residual disability rendering him at a disadvantage in the labour market.  I would have to be persuaded on the evidence that the Plaintiff would indeed be substantially and unduly disadvantaged in finding and holding on to work in the future on account of the orthopaedic and psychiatric aspects of his injuries: Chan Wai-tong v Li Ping-sum [1985] HKLR 176; Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.  I am not so persuaded on the body of the evidence.  The claim fails.

Special Damages

57. These encompass hospital and other medical charges, traveling expenses and tonic food.  They amount to $15,543 and are agreed.

Conclusion

PSLA	$350,000
Pre-trial Loss of Earnings	$612,879
Loss of MPF	$30,643.95
Loss of Future Earnings	Nil
Loss of Future MPF	Nil
Loss of Earning Capacity	Nil
Specials	$15,543
Total Award	$1,009,065.95

58. There shall be judgment to the Plaintiff for the sum of $1,009,065.95.  There shall also be interest at 2% p.a. on the PSLA award from the service of the writ to date hereof and thereafter at judgment rate until full payment.  On Special Damages there shall be interest at half judgment rate from the date of the accident to the date hereof and thereafter at judgment rate until full payment.

59. The Plaintiff shall have to give credit for the employee compensation award of $874,449.60 that he has received.

60. Finally, I make a costs order nisi of the assessment hearing to be paid by the Defendants, taxed if not agreed with liberty to apply within 14 days hereof.  There shall also be a certificate for counsel.  The same shall become absolute upon the expiry of the two weeks mentioned.