Cheung Ka Lok v. Mau Wa Construction Ltd and Another
Read the full judgment text of HCPI 497/2014 on BabelCite. This High Court CFI judgment was delivered on 30 May 2016.
1. This is an assessment of damages in respect of a personal injuries claim.
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HCPI 497/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 497 OF 2014 __________________
________________________ J U D G M E N T Introduction 1.This is an assessment of damages in respect of a personal injuries claim. 2.The 1st defendant employed the plaintiff as a general labourer at a construction site located at Ocean Park Master Redevelopment Project, Contract No CSO3- Thrill Mountain and Polar Adventure ("the Site"). 3.On 13 June 2011, the plaintiff was instructed to perform manhole raising works at the Site. The manhole was rectangular in shape and was about 1 metre to 1.5 metres deep. It was about 1 foot below the ground level and the rim of the manhole was about 8 inches wide. 4.In order to carry out his job, the plaintiff had to place a piece of wood splint across both sides of the manhole for levelling. Whilst holding a piece of wood splint about 2 metres long horizontally with both hands, the plaintiff stood with his right foot on the rim of the manhole. As he placed his left foot on the rim of the manhole, he stepped onto a piece of crushed asphalt which caused him to lose his balance. His left leg slipped into the manhole, while his right leg remained on the rim of the manhole. As he fell, the left side of his lower back and his left elbow hit the rim of the manhole. The plaintiff was injured. 5.The defendants paid $1,084,397.80 as employee's compensation by order of His Honour Judge Andrew Li in DCEC 699/2013. That sum comprised $219,397.80 as periodical payments received as and when they fell due and $865,000 as an additional settlement sum. 6.On 14 October 2014, interlocutory judgment on liability was entered by consent to the extent of 90% against the defendants in favour of the plaintiff, leaving damages to be assessed. As set out in the plaintiff's counsel's opening submissions, the plaintiff claimed a total of $2,422,178.02, after accounting for 10% contributory negligence and employee's compensation. 7.The defendants do not dispute that the plaintiff was injured in the accident but their case is that the degree or extent of the plaintiff's injuries are less serious than alleged and a number of claim items are gratuitous. 8.The plaintiff gave evidence and a foreman employed by the 1st defendant, Mr Chan Chau Pun, gave evidence. No doctors or experts gave evidence; the parties relied on records and reports. 9.Ms Julia Lau appeared for the plaintiff and Mr Victor Gidwani for the defendants. Injuries and treatment 10.The plaintiff was born on 1 February 1963. He was 48 at the time of the accident and 53 at the time of trial. 11.The plaintiff was taken to the Accident & Emergency Department of Queen Mary Hospital at 1720 hours on 13 June 2011. Examination revealed that the plaintiff had limited movement over his right knee with tenderness. X-ray examination of his chest, left ribs, and right knee revealed nothing abnormal. He was given right knee strapping and discharged on the same day. 12.Due to persistent pain, the plaintiff sought treatment at the United Christian Hospital on 15 June 2011. He was admitted to the Department of Orthopaedics & Traumatology on the same day. Physical examination revealed mild tenderness over the left side of his back. There was swelling over his right knee with tenderness over the medial collateral ligament. The range of movement of his right knee was limited by pain. 13.The plaintiff had an MRI scan of his right knee and lumbar spine on 21 June 2011. The MRI scan of his right knee showed a partial tear of the right medial collateral ligament and probably a partial tear of the anterior cruciate ligament. The scan of his back showed degenerative disc disease at L4/5 and L5/S1 with the right L5/S1 right side disc touching the nerve root. 14.The plaintiff was treated conservatively with physiotherapy and analgesics and given a hinge brace for his right knee. Pain improved and he was discharged on 22 June 2011 with two elbow crutches. 15.Subsequent follow up at the Department of Orthopaedics & Traumatology of United Christian Hospital on 15 July 2011 revealed residual left knee pain, low back pain with both lower limb pain and left foot numbness. Physical examination showed mild diffuse tenderness at lower lumbar spine. There was only mild weakness of left side L4 myotome with no definitive sensory loss demonstrated. The plaintiff showed occasional decreased right lower limb power in later follow up but improved with encouragement. 16.The plaintiff commenced his first course of physiotherapy at the Physiotherapy Department of United Christian Hospital on 20 July 2011, which course lasted until 3 April 2012, by which time his progress with physiotherapy was static and his condition was stable . He attended 41 treatment sessions during this period and he reported 40% subjective improvement. Physiotherapists noted in December 2011 and January 2012 that the plaintiff had wasting and marked atrophy in his right quadriceps. His thigh girth at 10cm above the patella of his right leg was 1.5 to 2cm less than his left thigh. 17.On 8 November 2011, the plaintiff was referred to the Occupational Therapy Department of United Christian Hospital for work rehabilitation, complaining of decreased right knee strength. Lifting and functional capacity work rehabilitation was arranged to maximize his work capacity. After a full course of training, the plaintiff attended work assessment by an occupational therapist on 9 March 2012, who concluded that his capacity was far below that required for a construction worker. He still complained of persistent back and right knee pain. His right knee extension strength was only half that of his left knee. He had difficulty deep squatting. He was discharged from occupational therapy due to his progress plateauing. 18.By March 2012, the plaintiff's knee had improved and he was walking with a stick, not taking analgesics regularly. He was concerned mainly about his back pain, although there was no definitive evidence of neurological deficit. 19.By October 2012, a spine specialist noted that the plaintiff had full power and normal sensation in his lower limbs. 20.The plaintiff was referred to a second course of physiotherapy on 6 December 2012. He attended five treatment sessions between 6 December 2012 and 10 January 2013. He reported temporary relief of symptoms for two to three hours with exercise. 21.The plaintiff was first seen at the Department of Anaesthetics on 1 August 2014. He reported low back pain, localized to the midline and right side of his low back which was constant and mechanical in nature. His right knee pain was localized, constant and mechanical in nature with occasional radiation to the calf. Physical examination revealed limited lumbar spine flexion and extension. There was localized tenderness over the midline and left paraspinal region of L4/5. His straight leg raising performance was limited. During his follow-up on 12 February 2015, the plaintiff complained of pain radiating from the right medial groin to the medial side of the right thigh and down to his right sole. There was left buttock pain at times which radiated down to his left lower limb. The pain was worse during cold weather and after going to the toilet and walking downstairs or down a slope. Physical examination revealed lower limb power of grade 4 out of 5 bilaterally on L2 and L3 myotome which might have been limited by pain. The plaintiff then refused further lower limb physical examination due to pain. The plaintiff was given further follow up treatment and his condition was monitored. 22.The plaintiff also complained of psychiatric symptoms and he was referred to the clinical psychological service of United Christian Hospital on 20 October 2011 and he was first seen by a clinical psychologist on 14 December 2011. He was diagnosed with adjustment disorder and was given an anti-depressant. He exhibited symptoms of depressed mood, irritability, sense of uselessness, pain fear, negative thoughts, sense of helplessness and loss of control, and intense anger against his former employer and pain specialist teams. He reported fleeting suicidal ideas and his acceptance of pain was rated as low. He had intense worry over his failure to return to work and support from his wife and children was poor. His relationship with his wife deteriorated to the point that they divorced. 23.The plaintiff was provided with supportive psychotherapy and coaching of emotional regulation skills. The plaintiff, however, only showed limited progress in his psychological symptoms as he was quite rigid and was pre-occupied with his perceived problems. The clinical psychologist reported that the plaintiff remained maladjusted psychologically at the time treatment ended in January 2013. 24.The plaintiff was referred to the Department of Clinical Psychology of Haven of Hope Hospital in May 2012 for assessment of his suitability for a chronic pain management program. He was selected for and successfully completed an 8-day intensive Multidisciplinary Approach to Chronic Pain Rehabilitation Program between 20 August 2012 and 28 September 2012. He was taught about effective pain management, coping strategies and skills. The plaintiff was grateful after treatment and had more confidence about coping with pain with less catastrophic pain reaction and rumination. He was motivated to help himself. According to the clinical psychologist who treated the plaintiff, she considered the plaintiff definitely needed external resources and psychological support in order to sustain a healthier and promising rehabilitation. She considered that, owing to his illiteracy and rigid thinking style, he would benefit from continual reassurance and pain counselling. 25.In May 2012, the plaintiff complained of auditory hallucinations due to a deteriorating relationship with his family. He was seen in the Department of Psychiatry of United Christian Hospital. His diagnosis was revised from adjustment disorder to psychotic depression with anti-psychotics offered. His mental condition improved upon anti-psychotic treatment. When he attended follow-up on 28 November 2012, the plaintiff's mood was neutral and euthymic with social smile. His speech was coherent and relevant. He still had vague auditory hallucinations but it did not affect his daily living. He was not suicidal. 26.On 8 August 2013, the plaintiff began attending psychiatric day hospital for rehabilitation. He was admitted to the psychiatric ward of United Christian Hospital from 4 October 2013 to 10 October 2013 due to violent behaviour (which I noted was an argument with his wife, from whom he had recently divorced) and unstable mood. 27.When the plaintiff was seen again at the Department of Psychiatry on 16 October 2013, he reported a stable mood. Mental examination on that day revealed that he was calm. He was not psychotic or depressed. He started to attend psychiatric day hospital again on 6 November 2013 and he has been on regular follow-up since then. 28.A medical report from the Department of Clinical Psychology, dated 13 April 2015, stated that the plaintiff was noted as having difficulty in accepting changes in life after the accident, including his chronic pain, other medical conditions, work disability and poor family relationship. The plaintiff also lamented the lack of opportunity to exercise because of restrictions from doctors due to a heart condition. He had problems trusting or accepting the doctor who asked him to have surgery for his heart condition. The plaintiff was counselled to learn to accept what had happened to him and to find impetus to move on and install new goals in life. His treating doctors regarded his progress as quite slow due to his low level of acceptance and relentless grudges to the medical treatment he was receiving. The plaintiff was also found to be rigid in thinking and had been difficult with doctors who tried to help him see alternative perspectives to cope with his problems. The plaintiff seemed to be stuck in a mindset of "disabilities" and narrowly focused on finding ways to alleviate his pain and spinal condition. His treating doctors considered that the plaintiff required continual psychological sessions to attempt to help him to better accept his condition and to develop functional goals in life. 29.When the plaintiff was seen at the Department of Psychiatry on 24 March 2015, it was noted that he was calm and had good eye contact. His speech was coherent and relevant and his mood was neutral. He had no psychotic features and had no suicide or violent ideas. He continues to attend his follow-up. 30.Government doctors gave the plaintiff sick leave from 13 June 2011 to 2 December 2012 (about 17.5 months). Experts' opinions Dr Peter Tio Man Kwun & Dr Henry Ho Ching Lun 31.The plaintiff was jointly examined by orthopaedic specialists, Dr Peter Tio Man Kwun (appointed by the plaintiff) and Dr Henry Ho Ching Lun (appointed by the defendants) on 20 March 2013. The experts produced a joint report, dated 12 August 2013, and a supplementary joint report, dated 12 July 2014. 32.In their joint expert report of 12 August 2013, both experts noted that, the at the time of the joint examination, the plaintiff complained of:
33.Examination revealed that the plaintiff could walk slowly with a limp unaided. He could not walk on tiptoes or on heels and he could not stand on one leg alone. He could not squat. He grimaced through the examination. 34.Simulation tests were performed and the results were all positive. All his movements were slow. The plaintiff's back was covered by a medicinal patch and there was diffuse tenderness over the whole lower back with more tenderness on the left lumbar area. There was no muscle spasm. The range of lumbar spine movement was only 10 degree on flexion and lateral flexion. The lower limb power for both sides was generalized grade 4 and gave way. Both lower limbs sensation was reduced by 50% but reflexes were normal. A straight leg raising test performed in the sitting position revealed 60 degrees for both sides. In the supine position, the plaintiff could only perform 30 degrees on right side and 5 degrees on left side, complaining of low back pain. 35.His right knee was also covered with a medicated patch and there was diffuse tenderness. There was no joint effusion and the medial collateral ligament was intact. A Lachman test indicated that the anterior cruciate ligament should be intact. 36.Both experts measured his lower limbs and there was no muscle wasting:
37.Dr Tio considered that the plaintiff had suffered a partial tear of the medial collateral ligament and of the anterior cruciate ligament of the right knee in the accident. Dr Ho considered that the plaintiff had suffered a partial tear of the medial collateral ligament and possibly a tear of the anterior cruciate ligament of the right knee. 38.Both experts agreed that the plaintiff had suffered some soft tissue injury to his back. There was diffuse tenderness over the lower lumbar spine. Dr Tio noted stiffness of the lumbar spine. Dr Ho noted that there was no muscle spasm. The experts agreed that degenerative changes to the plaintiff's back were pre-existing. Dr Tio's opinion was that since the plaintiff was completely asymptomatic before the accident, his current complaints should be all related to the accident. 39.Dr Tio noted that the plaintiff's global reduction in sensation could not be explained by the MRI findings and the reduction in lower limb power did not correspond with any myotomal distribution. 40.The experts also agreed that, since the simulation tests returned positive results, the plaintiff's back pain was non-organic. Dr Tio stated that this was to be expected given the plaintiff's psychiatric condition which could affect the clinical presentation of his back pain. Dr Ho considered that the non-organic pain strongly suggested symptom magnification and pain-focused behavior. 41.Dr Tio was of the view that a new MRI scan of his lumbar spine could be considered to see whether there could be new findings to support his symptoms. Dr Ho was of the view that a new MRI scan was not necessary because, given that the first scan did not show any evidence of acute spinal injury, a new scan would not show any evidence of injury other than further time related natural degenerative changes, which, Dr Ho thought, cannot be attributed to the accident. 42.Dr Ho regarded the plaintiff as having recovered well from his back injury. 43.Dr Tio advised that in general, most patients with a similar back injury could present with intermittent back pain which could be aggravated by prolonged walking and standing for over one to two hours, lifting or carrying heavy objects of over 10 to 20 pounds for up to 15 minutes and upon other physical exertion. The pain, while its severity would diminish gradually with time, would become static after one to two years with some permanent degree of intermittent back pain. 44.As for the plaintiff's right knee, although no muscle wasting was found during the examination, Dr Tio proceeded on the basis that there was some muscle wasting, based on the measurements taken in the hospitals. 45.Dr Tio noted some stiffness over the right knee and diffused tenderness over his right knee during the joint examination. He noted no gross laxity over the knee with reference to the medial collateral ligament and the anterior cruciate ligament. The plaintiff's mobility was markedly reduced. Dr Tio advised that most patients suffering a similar injury could present with pain over the medial aspect of the knee and there could be a slight degree of muscle wasting. For partial collateral ligament injury, in most patients the ligament healed with varying degree of laxity. For anterior cruciate ligament partial tear, the knee would gradually become stabilized with varying degree of laxity over the knee. Intermittent pain over the medial knee is expected upon prolonged walking and standing and upon heavy exertion of the knee. He noted that most patients with similar injuries would be able to walk independently with reduced exercise tolerance after rehabilitation for over a year. He expected intermittent pain over the plaintiff's medial knee upon prolonged walking and standing and upon heavy exertion of the knee. 46.Dr Tio considered that the prognosis of the plaintiff's right knee and back should be fair with intermittent pain. However, the prognosis could be adversely affected by the presence of his psychiatric condition. He assessed whole person impairment at 12%. 47.Dr Ho, on the other hand, thought that the plaintiff's right knee had recovered well and there was no evidence of instability due to ligament tear and injury. 48.Dr Ho considered that the prognosis of the plaintiff's right knee injury should be excellent and the plaintiff should not be suffering disabling right knee symptoms. The prognosis of the right back contusion should also be good and the symptoms should not be as disabling as the plaintiff claims. Dr Ho thought that, if he is careful with his back posture, the residual back disability should be mild. He assessed whole person impairment at 2%. 49.The experts agreed that the plaintiff had reached maximal medical improvement. 50.Dr Tio advised that the plaintiff is expected to have difficulty in resuming his previous duties with expected right knee and back pain and reduced endurance for working, whereas his pre-accident work required a strong physique. Dr Tio considered the plaintiff to be more suited to work at light duties including as a security guard or a petrol station attendant. 51.Dr Ho, on the other hand, thought that the plaintiff should be able to return to his pre-accident job as a construction site labourer with little residual disability if he observes proper back posture and adopts the correct lifting technique. Dr Ho thought that the residual symptoms in the plaintiff's right knee should be very minimal. 52.As to sick leave, Dr Tio endorsed that granted by the government doctors, whereas Dr Ho thought that four months should have been sufficient. 53.In the Supplementary Joint Report both Dr Tio and Dr Ho advised that the plaintiff did not require any further treatment. Dr Ho stated that the subjective right knee disability had a strong non-organic component and is not consistent with the unremarkable objective clinical findings. Dr Ho also described the plaintiff's back pain as "grossly exaggerated". Dr Law Wun Tong 54.The plaintiff was examined by Dr Law Wun Tong, a psychiatrist, upon the joint instructions of both parties on 2 October 2013. 55.In his expert report, dated 2 June 2014, Dr Law noted that the plaintiff complained of the following:
56.The plaintiff's mood was slightly anxious and dysphoric during the examination. He said that his mood was more anxious than usual because of the assessment and recounting of the accident. There was no thought or perceptual abnormality. His cognitive functions were within normal limits and he did not give absurd answers. 57.Dr Law's opinion was that the plaintiff suffered adjustment disorder with depressed mood wholly caused by the accident and consistent with the injury. He did not believe the plaintiff had any psychotic disorder. He thought that the imaginary voices allegedly heard were vague and non-specific and were pseudo-hallucinations. Dr Law considered the severity of the residual symptoms to be mild. 58.Adjustment disorder is the emotional and behavioural changes due to identifiable stressors. Dr Law considered the main stressors which the plaintiff had were the residual physical symptoms and the associated psychosocial stressors which included loss of job, financial strain, change in lifestyle, marital discord and subsequent divorce, accommodation problems, worries about the future and the compensation litigation. 59.Dr Law advised that the prognosis for the adjustment disorder is dependent on the resolution of the stressors. Dr Law considered the plaintiff's physical problems as a stressor were in the mild range. He noted that the plaintiff reported improvement after psychiatric treatment and he considered his main disabilities to be physical in nature. Dr Law's view was that, if the plaintiff is allocated a housing unit and the compensation claim is settled, these two major psychosocial stressors would be removed. He thought that the prognosis for the adjustment disorder is fair but given the persistence of pain, he believed the plaintiff would have some reactive mood turmoil. 60.Dr Law considered sick leave of three to six months after the first consultation with the psychiatrist to be reasonable. He noted that the plaintiff had received day hospital treatment but thought that he received such treatment for "social reasons". 61.Dr Law stated that the plaintiff's brief admission in October 2013 was a crisis situation (I note the plaintiff was divorced in September 2013 and admitted after a domestic violence incident on 4 October 2013) and he did not show prolonged mood deterioration. 62.Dr Law believed impairment due to the adjustment disorder to be mild and that the plaintiff's working capacity should not be significantly impaired by his psychiatric problems. Mentally, he should be capable of resuming his previous job. According to Dr Law the main limiting factor, if any, would be his physical disabilities, his age, his past working experience and his education background. The estimated loss of earning capacity due to the adjustment disorder is 3-5%. 63.When cross-examined, the plaintiff agreed that he was not prevented from working because of any psychiatric problem, it was because of his physical problems. 64.Ms Lau submitted that Dr Law's remarks, that the plaintiff was attending psychiatric day hospital for social reasons, should be considered cautiously for the following reasons:
65.In particular, the plaintiff's counsel relied on Dr Wong's report, dated 13 April 2015, as showing slow progress and that the plaintiff was in a mindset of "disability" and still focused on finding ways to alleviate his pain and his back condition. At that time, Dr Wong's opinion was that the plaintiff needed continued psychological sessions. 66.Dr Wan, reported that the plaintiff had been attending the psychiatric day hospital since 6 November 2013 and had also attended regular follow-up at the Department of Psychiatry. When he was seen on 24 March 2015, the plaintiff was calm and had good eye contact. His mood was neutral. He had no psychotic features and he had no suicidal or violent ideas. The plaintiff was prescribed an anti-depressant to take at bedtime. 67.Ms Lau submitted that these updated medical reports contain material and relevant information of the actual clinical condition of the Plaintiff prevailing at the time of the consultation. 68.However, I consider it appropriate to rely on the opinion of the joint psychiatrist, Dr Law. It was open to the plaintiff to bring the later reports to the attention of Dr Law for a supplementary opinion but he did not do so. Video 69.During the trial, the plaintiff approached the witness box slowly, apparently relying on his walking stick. 70.Whilst giving evidence, the plaintiff alternated between sitting and standing and the reason he gave for doing so was that his physiotherapist and other medical officers had told him to stand so as to relieve pain. He also used a short stick to scratch his back, also to relieve pain. 71.During cross-examination, the court was shown a video of surveillance taken on three occasions: 8 June 2015, 6 July 2015 and 9 July 2015. All three occasions were during the day. The plaintiff was walking with an even pace, at reasonable speed and with no limp. Although he held a walking stick in his right hand, he did not appear to be relying upon it for support. He boarded a mini-bus twice with apparent ease. He opened metal security doors with ease, using only one hand, his left hand. He reached behind with his left arm to scratch his back and with his right arm into his right side back trouser pocket. In short, the video did not show any disability and, when it was put to him in cross-examination that he was walking quite normally, his answer was that he was holding a walking stick and the video was taken whilst he was walking on a smooth surface, not when he had difficulty using stairs or boarding a bus. Pain, suffering and loss of amenity 72.In his Revised Statement of Damages, the plaintiff claimed $800,000 for pain, suffering and loss of amenity. By the time of trial, this claim had been reduced to $500,000. In his opening submissions, Mr Gidwani for the defendants submitted that $450,000 would be appropriate and, at trial, he told the Court that he had "no qualms" with $500,000. 73.I take into account that the plaintiff suffered a partial tear of his medial collateral ligament and a possible tear of his anterior cruciate ligament of his right knee. He suffered a contusion injury to his back and has had psychiatric symptoms. After considering the authorities cited by both counsel, I formed the view that the parties' respective positions were within the appropriate range of damages. Accordingly, I allow $500,000 for pain, suffering and loss of amenity. Pre-trial loss of earnings 74.There was a dispute as to the level of the plaintiff's monthly earnings to be applied to the calculation of pre-trial and post-trial loss. There was also a dispute as to whether the plaintiff could have returned to work before trial. The plaintiff's case 75.Ms Lau submitted that the plaintiff was not fit to resume any gainful employment during the pre-trial period. Hence, the plaintiff based his pre-trial loss of earnings on a period of 58 months (the period from the accident in June 2011 to trial in April 2016) and a median income calculated on the basis of the average of the sum of his last monthly wage in May 2011 and a monthly wage calculated on the basis of the daily rate for labourers in 2015. 76.Turning first to the plaintiff's calculation of a median notional wage. The 1st defendant employed the plaintiff as a general labourer. He commenced working for the 1st defendant in August 2010 finishing when the accident occurred in June 2011. His daily wage was $550. If he had to work overtime, he would be paid $92 per hour. 77.The plaintiff's earnings in May 2011, namely, the month immediately prior to the accident, were $16,228 (being $550 x 28 days + $92 x 9 hours). 78.The plaintiff claimed that, apart from working for the 1st defendant, he also worked for other contractors on other construction sites from August 2010 to June 2011. He worked for other contractors at times because the daily wage was higher, $800 per day. 79.The plaintiff did not kept a record of his daily work with other contractors but the list of earnings submitted by the defendants revealed that the plaintiff worked, on average, between 22 and 23 days for the 1st defendant. The plaintiff claimed that, taking into account the work he did for other contractors at other construction sites with a higher daily wage, it was reasonable to accept that the plaintiff worked, on average, at least 26 days per month at an average daily wage of $550. Hence, the plaintiff claimed average monthly earnings at the time of the accident of $14,300 ($550 x 26 days). 80.Ms Lau submitted that this is a very modest estimate in light of the earnings of two comparable workers disclosed by the defendants. Their average monthly earnings for the period from April 2011 to March 2014 were:
81.The plaintiff conceded that he would have remained as a general labourer but for the accident. 82.In his witness statement for the 1st defendant, Mr Chan stated that the daily wage of a general labourer increased to $850 in 2014 and in 2015 it increased further to between $870 and $900 ($885 as the average). 83.Adopting the figure of $885, the notional monthly earnings of the plaintiff at the time of trial would have been $23,010 ($885 x 26 days). Therefore, the median notional earning of the plaintiff during the pre-trial period was $18,655 (being the average of $14,300 and $23,010). 84.Turning to the question whether the plaintiff could have returned to work during the pre-trial period. The plaintiff was given sick leave for his back injuries from 14 June 2011 to 2 December 2012. However, the plaintiff was referred to attend a second course of physiotherapy, which began on 6 December 2012, and he continued to attend follow-up. Medical attendance records produced by the plaintiff show that he was receiving physiotherapy and occupational therapy until August 2013. 85.His mental condition deteriorated in May 2012, when he developed auditory hallucinations upon the deterioration of his relationship with his family. His diagnosis was revised to psychotic depression and anti-psychotics were offered. The plaintiff was admitted to the psychiatric day hospital of United Christian Hospital on 8 August 2013 for rehabilitation. 86.He was selected to attend an 8-day intensive Multidisciplinary Approach to Chronic Pain Rehabilitation Program held at Haven of Hope Hospital between 20 August 2012 and 28 September 2012 and according to the clinical psychologist who treated the plaintiff, he required external resources and psychological support in order to sustain a healthier and promising rehabilitation. 87.The plaintiff's mental condition deteriorated further after his divorce in September 2013 and he was admitted to the A & E Department of United Christian Hospital with the help of police following a domestic conflict on 4 October 2013. Upon discharge against medical advice on 10 October 2013, he was seen again at the psychiatric day hospital on 6 November 2013. Since then, he has been attending psychiatric day hospital at United Christian Hospital from Mondays to Fridays. 88.As noted in para 65 above, Ms Lau, relying on Dr Wong's report, submitted that the plaintiff was showing only slow progress psychologically. 89.Ms Lau submitted that, against this medical background, the plaintiff was not able to resume work at all during the pre-trial period. 90.The plaintiff's claim for loss of earnings during the pre-trial period was:
91.His claimed pre-trial loss of MPF contribution was:
The defendants' case 92.The defendants' position was that four months sick leave should be allowed, relying on Dr Ho's opinion that the sick leave for the type of injuries suffered by the plaintiff is up to four months, plus a further "grace period" of three months. The "grace period" was an allowance for job hunting. 93.As for the median notional earnings of the plaintiff during the pre-trial period, Mr Gidwani relied on Yu Lam v Ma Chak Yin t/as Wai Kei Engineering unrep, HCPI 342 of 2004, 22 March 2005, per DHCJ Muttrie, at para 24 for the proposition that 23 working days a month is the most suitable parameter in the present case. As the plaintiff's daily wage at the time of the accident was $550, this would provide a wage of $12,650 a month ($550 x 23 days) at the time of the accident. 94.Mr Gidwani adopted a figure of $800 a day as the daily wage as at the date of trial, relying on the oral evidence of Mr Chan that the daily wage for labourers had fallen to $800 in 2016. Thus, Mr Gidwani submitted, the plaintiff's monthly earnings as at the date of trial should be taken as $18,400 ($800 x 23 days). (Mr Gidwani did not explain why he applied the monthly earnings as at the date of trial rather than those for the time seven months after the accident.) 95.Mr Gidwani calculated the median notional earnings as $15,525 (being the average between $12,650 and $18,400) and accepted the plaintiff's pre-trial loss of earnings as $108,675 ($15,525 x 7 months). Mr Gidwani accepted a pre-trial loss of MPF contribution of $5,433.75 ($108,675 x 5%). The total pre-trial loss of earnings was accepted by the defendants as $114,108.75. Discussion 96.I shall begin by considering whether the plaintiff could have resumed work during the pre-trial period. 97.The plaintiff was granted sick leave in respect of his physical injuries for about 17.5 months (14 June 2011 to 2 December 2012). Dr Tio considered the sick leave provided from June 2011 to December 2012 was reasonable and appropriate. Although Dr Ho's opinion was that sick leave for the type of injuries suffered by the plaintiff is up to four months, he did not challenge the sick leave granted, saying only that it was "unusually long". In Dr Law's opinion, sick leave for three to six months after the first consultation with the psychiatrist was reasonable; which would be until November 2012 on the basis that he first saw a psychiatrist in May 2012. (Dr Law advised that the sick leave is for the establishment of treatment and for medication to take effect.) I am not bound by the sick leave certificates but, in light of the experts' respective views, I shall allow the plaintiff the sick leave granted, ie 17.5 months. I shall also allow a further "grace period" of three months, bringing the total to 20.5 months. 98.As to the period after the sick leave, I consider that the plaintiff was fit to resume work for the reasons which follow. 99.There are two aspects to consider. First, his physical condition. 100.As noted above, the video surveillance showed that the plaintiff's walking and movement generally were quite normal; there were no signs of handicap. In comparison, the plaintiff's movement in court was hesitant and slow. He behaved as though he was in pain or discomfort. This difference indicates a tendency to exaggerate symptoms. 101.It was not expected that the plaintiff's injuries would have been so serious to require the aid of walking stick. In fact, Dr Tio fairly pointed out that "In terms of mobility, most of the patients with similar injury should be able to ambulate independently with a reduced exercise tolerance after rehabilitate (sic) for over a year." (emphasis added) 102.The plaintiff also complained of chest pain, urination issues and a cardiac problem and, although Ms Lau advised that these issues were not relied upon, his attribution of such a wide spectrum of symptoms also indicates a tendency to exaggerate. 103.Indeed, it was a general theme within the plaintiff's evidence that he disagreed with the medical evidence regarding his physical and psychiatric state. When told that the treating orthopaedic doctors made no mention of any neurological deficit when examining him, the plaintiff could only say that he did not know what the doctors had written. 104.Similarly, when confronted with the point that both orthopaedic experts had made findings that were adverse to his case, he criticized the manner in which the orthopaedic experts had conducted the joint examination. The plaintiff criticized his own expert Dr Tio. 105.Several simulation tests conducted by the defendants' orthopaedic expert showed that the plaintiff was magnifying the extent of his injuries. 106.The plaintiff's physical complaints are also inconsistent with the MRI and X-ray results. 107.Dr Tio stated that clinical examination showed that there was no gross laxity over his right knee with reference to the medial collateral ligament and the anterior cruciate ligament and that no muscle wasting was found. He noted some stiffness over the right knee and diffuse tenderness. Mobility was markedly reduced. Dr Tio noted that for partial collateral ligament injury, most patients have the ligament healed with varying degrees of laxity. For anterior cruciate ligament partial tear, the knee will gradually stabilize with varying degrees of laxity over the knee. Dr Tio thought the prognosis for the plaintiff's knee should be fair with intermittent pain. 108.Dr Ho noted that the plaintiff's right knee had recovered well and was clinically stable with no evidence of instability. The prognosis for the right knee injury was good and his functional recovery should be good. He should not suffer significant right knee disability. 109.As for the plaintiff's back pain, Dr Tio thought that the plaintiff's grimacing during the examination and the positive simulation tests suggested that the cause of the back pain was non-organic. Dr Tio thought the pain should gradually diminish and become static after one to two years with some permanent intermittent back pain. 110.Dr Ho noted that the plaintiff had diffuse tenderness in his back but no muscle spasm. The plaintiff had non-organic pain, strongly suggesting symptom magnification. The pain was grossly exaggerated. Dr Ho thought that the plaintiff should have recovered well. 111.Overall, Dr Tio thought that the plaintiff's prognosis should be fair, with intermittent pain over his right knee and back. However, the prognosis could be adversely affected by the plaintiff's psychiatric condition. (Dr Law does not support this opinion. Dr Law's opinion is that the psychiatric problems are a result of stressors, including pain, which, if resolved, will resolve the psychiatric problems in turn.) 112.Dr Ho said that the prognosis for the right knee was excellent and, regarding the plaintiff's back, the prognosis was good. Dr Ho thought that the back symptoms should not be as disabling as the plaintiff claims and, if he is careful with his back posture, his residual back disability should be mild. 113.Tellingly, both experts considered that the plaintiff could resume work, although they differed as to the nature of the work. Dr Tio considered that the plaintiff was fit for light duty including working as a security guard or a petrol station attendant. Dr Ho considered that the plaintiff should be able to return to his previous job as a construction site labourer. 114.As for the plaintiff's psychiatric situation, Dr Law stated that the severity of residual problems was mild and that the plaintiff should not be significantly impaired by his psychiatric problems. Mentally he should be capable of resuming his previous job. Indeed, the plaintiff said in cross-examination that he was not prevented from working because of his psychiatric problems. 115.In my view, the plaintiff was an unreliable witness who exaggerated his condition. 116.Mr Gidwani submitted that, if the plaintiff could work as a security guard or a petrol station attendant, then he should be able to work as a general labourer with general construction site duties. 117.Mr Chan's evidence was that the daily duties of a general labourer included manual handling work and clearing rubbish. The Occupational Therapy Report, dated 11 December 2012, records that the plaintiff reported that, when working for the 1st defendant, he carried weights up to 100 pounds. There was no evidence as to the exact nature of the duties of a security guard or petrol station attendant but Dr Tio described them generally as "light duties". 118.I have noted that Dr Tio and Dr Ho have different views as to the plaintiff's working capacity. Both experts consider that the plaintiff will have residual or permanent back problems. Dr Ho's view is qualified; he recognises that there will be residual back disability but that it should be mild if the plaintiff is careful with his back posture. He also advised that the plaintiff should be able to return to his pre-accident job as a construction site labourer with little residual disability if he observes his back posture and adopts the correct lifting technique. Dr Tio's opinion is that the plaintiff will have some permanent degree of intermittent back pain and he observed that most patients with similar back injury can present with intermittent back pain, which can be aggravated by lifting or carrying heavy weights of over 10 to 20 pounds for up to 15 minutes. 119.In light of the plaintiff reporting that he carried weights up to 100 pounds as a construction site labourer and given Dr Tio's opinion that most patients with similar back injury can have pain aggravated by lifting heavy weights and given Dr Ho's qualification, I consider there is a real risk of aggravation of permanent intermittent back pain if the plaintiff returned to his former work. For this reason, I prefer Dr Tio's opinion as to the nature of work, ie, light duties, which the plaintiff could take up. 120.Given my view that the plaintiff was an unreliable witness and that all the experts consider that the plaintiff was fit to return to work, and given my preference for Dr Tio's view as to the nature of work, I find that the plaintiff should have returned to work in the nature of or similar to a security guard or petrol station attendant within three months of the end of his sick leave, ie 20.5 months from the accident (2 March 2013). 121.I turn now to consider the quantum of the loss of pre-trial earnings. 122.There is no objective evidence to support the plaintiff's assertion that he worked for other contractors and I shall not take this into account in my assessment. 123.As for the plaintiff's monthly earnings with the 1st defendant, in my view, it is more appropriate to take the monthly average rather than applying only the wage for the last month before the accident, as did the plaintiff; ten months was sufficiently long to give an accurate picture of the plaintiff's earning capacity with the 1st defendant. (Indeed, the comparables referred to by Ms Lau were averages.) 124.Mr Chan set out wages paid to the plaintiff for each of the months from August 2010 to May 2011. Added to those sums should be the plaintiff's MPF contributions, at 5%, for the months of January 2011 to May 2011. The average monthly wage achieved is $13,225.09, which I shall apply to the time of the accident. This average monthly wage works out at an average of 24.05 days (rounded) worked each month ($13,225.09/$550). 125.I do not find Yu Lam, supra, to be helpful because in that case the court was obliged to determine a monthly wage based on evidence of the likely number of days the plaintiff could work, taking into account holidays and days lost to inclement weather. As I have before me the records of 10 months' wages, I prefer to proceed on the basis of the average derived from that evidence to establish the plaintiff's earnings with the 1st defendant. 126.In his oral evidence Mr Chan said that, in 2016, a general labourer's wage was $800. Ms Lau submitted that I should disregard this evidence because it was not supported by any document or record; the only comparables provided were for 2014 and 2015. As we were only in April 2016 at the time of trial, such that any figure for the year is for a short period, and in the absence of records, I shall not refer to the $800. Applying $885 to an average of 24.05 days worked each month achieves a monthly wage of $21,284.25 at the time of trial. Thus, the median notional monthly wage during the pre-trial period is $17,254.67 (being the average of $13,225.09 and $21,284.25). 127.For the period of sick leave and the "grace period", I assess the pre-trial loss of earnings and MPF contributions at $371,406.77 ($17,254.67 x 20.5 x 1.05). 128.Turning to the balance of the pre-trial period after the expiration of sick leave. Counsel provided me with an agreed table of wages and labour earnings prepared by the Government's Census and Statistics Department which shows average monthly salaries for security guards from March 2013 to December 2015. As December 2015 is the last figure provided, I shall apply that figure to the period from January 2016 to April 2016. The sum of the average monthly salaries for the 38 months from March 2013 to April 2016 is $402,150 to which I add 5% for MPF contributions: $422,257.50. 129.For the balance of the pre-trial period (2 March 2013 to 26 April 2016, say, 38 months), I assess the pre-trial loss of earnings and MPF contributions at $266,203.83 [($17,254.67 x 38 x 1.05) - $422,257.50]. 130.The total of pre-trial loss of earnings and MPF contributions I assess at $637,610.60 ($371,406.77 + $266,203.83). Future loss of earnings 131.The plaintiff was 48 years old at the time of the accident. He was 53 years old at the time of trial. But for the accident, the plaintiff probably would have continued to work, at least as a general worker until the age of 65 years old. The applicable multiplier is 10.11. 132.Ms Lau submits, with the major psychosocial stressors removed, namely, the completion of the present litigation, and with continued counselling and support received, the plaintiff probably would have been able to resume some form of work in the post-trial period on a part-time basis, say, as a cleaner in a local restaurant or as a car park attendant, earning about $6,000 per month. 133.The plaintiff's claimed future loss of earnings was:
134.And his claimed future loss of MPF contributions was:
135.For the reasons given above, I consider that the plaintiff could work full-time as a security guard. Accordingly, I assess the plaintiff's future loss of earnings as $849,891.37 {[$17,254.67 - ($402,150/38)] x 12 x 10.11 x 1.05}. Loss of earning capacity 136.Ms Lau also submits that the plaintiff probably would suffer substantial disadvantage in the labour market, at least during the initial period as he tries to reintegrate into the labour force. He is, obviously, less competitive as compared with other able workers, she submits. He would be under a real risk of being dismissed in view of his physical and mental condition. 137.In this regard, the plaintiff claims $30,000. 138.As I have allowed a "grace period", I shall not allow this claim, for to do so would be double compensation. Special damages 139.The plaintiff claims:
140.The plaintiff claims a sum of $61,630 under this head. 141.In his Revised Statement of Damages, dated 26 March 2016, the plaintiff claimed "about $8,600" for medical expenses. In his written Opening, Mr Gidwani agreed to that sum. In her written Opening, Ms Lau revised the claim for medical expenses to $16,280, by adding claimed expenses incurred from 26 March 2016 to the date of trial. In his written Closing, Mr Gidwani maintained the sum of $8,600. 142.In light of the defendants' agreement I allow the sum claimed for medical expenses as set out in the Revised Statement of Damages, ie $8,600. 143.With regard to the claimed medical expenses after 26 March 2016 ($16,280 - $8,600 = $7,680), a schedule of medical expenses produced by Ms Lau, when read together with receipts, showed that apart from $680 for physiotherapy, orthopaedics and traumatics, and drugs, the balance ($7,000) was payment for the psychiatric day hospital. 144.As noted in para 97 above, Dr Law's view was that sick leave for three to six months after the first consultation with a psychiatrist was reasonable to establish treatment and for medication to take effect. Thereafter, in Dr Law's view the plaintiff has been receiving day hospital treatment for "social reasons". Dr Law does not relate the day hospital treatment to the accident. As such, I shall not allow the claim of $7,000 for the psychiatric day hospital. 145.As for the $680, in light of Dr Tio's prognosis of intermittent pain, I shall allow that sum. 146.Accordingly, I allow $9,280 for medical expenses. 147.The defendants agreed to the MRI fees. I shall allow the MRI fees in the sum of $5,400. 148.The plaintiff produced taxi receipts amounting to $233.50. The amount shown in the taxi receipts is clearly too low and the defendants were prepared to agree a sum of $5,000. I shall allow $5,000. 149.With regard to tonic food, no satisfactory explanation has been given as to the need for this food (the plaintiff said only that he had heard from "others" that this food is good for his injuries) and the receipts produced amount only to $14,277. Mr Gidwani suggested a sum of $2,000 and I shall allow that amount. 150.As for the rehabilitation tools, receipts were produced and all sums were incurred during the period of sick leave. I allow $1,450. Future medical expenses 151.In his Revised Statement of Damages, the plaintiff claimed $25,500 for 10 sessions of future private psychiatric treatment including travelling expenses. In her opening submissions, Ms Lau noted that Dr Law recommended that the plaintiff have another 10 sessions of psychiatric treatment in the public sector and she stated that the plaintiff would claim a total sum of $2,000 under this head. Mr Gidwani, in his opening submissions, stated that the defendants would agree to make provision for the plaintiff to be treated in the private sector and agreed a sum of $25,500. In her closing submissions, Ms Lau stated that the plaintiff would accept $25,500 but, in his closing submissions, Mr Gidwani stated that the defendants agreed to $2,000. 152.The basis of the defendants' initial offer was that the private sector might be able to address the plaintiff's needs better than the public sector and that sessions in the private sector might act as an intensive course to assist the plaintiff to gradually decrease his need for treatment. Without necessarily agreeing with Mr Gidwani's implication that the private sector is better than the public sector, I shall hold Mr Gidwani to his original reasoning and allow $25,500. Contributory negligence and employees' compensation 153.The damages awarded must be adjusted for the 10% contributory negligence attributed to the plaintiff. 154.The employees' compensation already received by the plaintiff ($1,084,397.80) must be deducted from the damages awarded. Summary of damages 155.The amount of damages payable to the plaintiff is as follows:
156.I award interest at 2% per annum on general damages for pain, suffering and loss of amenity, from the date of the writ to the date of judgment and on the award of pre-trial loss of earnings and special damages at half judgment rate, from the date of the accident to the date of judgment. 157.I make a costs order nisi that the defendants pay the plaintiff his costs of the action to be taxed if not agreed. I direct that the plaintiff's own costs be taxed pursuant to the Legal Aid Regulations (Cap 91, Sub Leg)
Ms Julia Lau, instructed by Wan and Leung, assigned by Director of Legal Aid for the plaintiff Mr Victor Gidwani, instructed by Deacons, for the defendants | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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