Ng Ning Fu v. Leader Engineering & Construction Ltd and Aanother

HCPI 173/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 173 OF 2015

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Before: Master Herbert Au-Yeung in Court

Date of Hearing: 25 and 29 September 2017

Date of Judgment: 12 October 2017

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.This is an assessment of damages in an action for damages for personal injuries suffered in an accident which took place on 29 March 2012.  Parties[1] have already agreed on some items of damages[2], and the remaining issues which this court has to resolve are:

(1) What should be the appropriate amount of damages for pain, suffering and loss of amenities (“PSLA”); and

(2) Whether the plaintiff has suffered any loss of earnings since 15 September 2013; and, if so, how much.

PSLA

The plaintiff’s injuries and treatment

2.At the time of the accident, the plaintiff was responsible for disposing of debris in a construction site by the use of a single-wheeled wheelbarrow.  He was required to push the wheelbarrow along an inclined runway so as to reach the designated disposal point.  The runway was composed of about 3 to 4 pieces of wooden planks.

3.On 29 March 2012 at around 2pm, when the plaintiff was pushing the wheelbarrow which was loaded with debris along the said runway, the wooden plank beneath the wheelbarrow suddenly collapsed.  As a result, the wheel of the wheelbarrow rolled into the collapsed position and the plaintiff lost hold of the handles of the wheelbarrow.  The plaintiff then fell down and was injured.

4.Initially, the plaintiff could not stand up again because of pain in his waist area.  After resting for around 10 minutes, when the pain was slightly relieved, the plaintiff was able to stand up and report the incident to the construction site office with the assistance of a co-worker. 

5.The plaintiff was then taken to the Accident and Emergency Department (“A&E”) of the Prince of Wales Hospital (“PWH”) for examination and treatment.  He was diagnosed to have low back pain and back sprain.  He was treated by medication, given sick leave up to 4 April 2012, and was discharged on the same day.

6.The plaintiff returned to the A&E of PWH for follow-up treatment on 5 April 2012.  He could walk unaided at the time. He was found to have low back spasm and pain which was compatible with a sprain.  The A&E of PWH referred the plaintiff to the Physiotherapy Department of PWH for treatment.

7.In the initial assessment by the Physiotherapy Department on 9 May 2012, the plaintiff complained of pain over low back, left thigh and calf.  Physiotherapy was given.  The last physiotherapy session took place on 30 July 2012.  At the end of the treatment, the plaintiff felt that his leg pain was reduced but low back pain remained.  The range of motion of his low back was reduced because of pain.

8.Because of persistent pain, the plaintiff was also referred to the Orthopaedics & Traumatology Department of PWH.  He was first seen at the clinic thereof on 31 May 2012.  He complained of back pain and left lower limb pain and numbness.  He was treated conservatively with back physiotherapy.  By the time he last visited that clinic on 22 November 2012, his back pain had mildly improved, but his left leg numbness still persisted.

9.According to the MRI taken on 19 August 2013, the plaintiff’s L4/5 and L5/S1 discs showed mild degeneration with mild desiccation and slight decrease in disc heights.  At L4/5, there was moderate right posterior paracentric disc protrusion, associated with effacement of right lateral recess and displacement of descending nerve root of right L5.  At L5/S1, there was small posterior annular tear over left posterior aspect of disc.  There was also loss of normal lumbar lordosis which might indicate underlying paraspinal muscle spasm.

10.The plaintiff was granted sick leave from 29 March 2012 to 14 March 2013.

The medical expert’s opinion

11.The plaintiff has engaged Dr Lam Yan Kit as his expert.  The 1^st defendant has not adduced any expert evidence.  As a result, only Dr Lam’s expert report was placed before this court for the purpose of this action. 

12.Dr Lam examined the plaintiff on 25 January 2016 (the same day when the plaintiff signed his witness statement in this action).  Dr Lam recorded the plaintiff’s complaints and his medical findings upon physical examination as follows:

(a)   On and off back pain;

(b)   Severe back pain associated with stiffness at times (a few times per month);

(c)   The pain would not be intensified even if he bended his back, coughed or sneezed;

(d)   Pain would be caused by lifting heavy objects;

(e)   The pain would get worse on rainy days;

(f)   Constant left lower limb pain with varying intensity;

(g)   Heel walking was unstable and would cause left lower limb pain;

(h)   Left lower limb pain would get worse with back pain at the same time;

(i)   Occasional left lower limb weakness when walking downstairs;

(j)   The back and left lower limb pain awoke him every night; and

(k)   He had to get up after sitting for 45 minutes, but he could do so without support.

13.Dr Lam commented that:

(a)   the plaintiff suffered from severe back sprain injury by reason of the accident on 29 March 2012;

(b)   the plaintiff’s pain symptom is more severe than one would normally expect on a patient 3 years after a soft tissue sprain injury;

(c)   the cause of the plaintiff’s persistent left lower limb symptom is not clear as the disc protrusion was on the right side and no nerve root compression was seen on the left;

(d)   the degeneration and disc protrusion are pre-existing and probably asymptomatic before the accident;

(e)   while the plaintiff is not suitable to return to his pre-accident job as a heavy duty general construction site worker, he should be able to cope with lighter duty jobs such as installation worker of aluminium frames and boards which was what the plaintiff doing at the time of the examination.

14.Pausing here, I must highlight the view of Dr Lam that the cause of the plaintiff’s persistent left lower limb symptom is not clear.  The plaintiff did not call Dr Lam to give evidence in court.  There is no other evidence which casts doubt on Dr Lam’s opinion in this respect.  I therefore find that the plaintiff has failed to prove on the balance of probabilities that the accident on 29 March 2012 has caused injury to his left leg. 

The plaintiff’s evidence

15.As aforesaid, the plaintiff signed his witness statement on the same day when he was examined by Dr Lam (i.e. 25 January 2016).  He told this court that the witness statement was drafted on the basis of instructions which he gave his solicitors around 2 weeks before 25 January 2016 and his condition remained the same in those 2 weeks.  That being the case, one would expect the plaintiff’s descriptions of his then current condition in his witness statement would be more or less the same as those in the expert report.

16.However, that is not the case here.

17.As pointed out by Mr Cheng for the 1^st defendant (and accepted by Mr Ho for the plaintiff) there were various discrepancies between the descriptions contained in the said documents. 

18.The following problems which were mentioned in paragraph 18 of the plaintiff’s witness statement did not appear in Dr Lam’s report (those in relation to the plaintiff’s left leg are omitted here because of my finding in paragraph 14 above):

(a)   weakness of his back;

(b)   intensified pain when he bended.

19.The plaintiff gave the following explanations in court as to why the picture painted in his witness statement was more serious than that in the expert’s report:

(a)   He did not tell Dr Lam everything because Dr Lam was not his treating doctor;

(b)   He did not tell Dr Lam about the aforesaid problems because Dr Lam did not ask him about these specifically; and

(c)   The instructions which he gave his solicitors for the drafting of the witness statement were about his work whereas Dr Lam’s examination was not about his work.

20.I do not accept these explanations:

(a)   I do not accept the plaintiff’s explanation that he was not specifically asked by Dr Lam about the condition of his back, given the fact that he had told Dr Lam about some of his back problems;

(b)   As a matter of fact, in the course of his evidence, the plaintiff had confirmed to the court that he had told Dr Lam everything about his condition;

(c)   I do not accept the plaintiff’s explanation that he did not tell Dr Lam everything because Dr Lam was not his treating doctor.  The plaintiff confirmed in court that he knew that Dr Lam was the expert engaged by him.  There is no reason for the plaintiff to withhold information about his then current condition;

(d)   The plaintiff had given contradictory evidence in his attempt to explain the discrepancies.  Initially, he stated that the instructions which he gave his solicitors for the preparation of his witness statement were about his work whereas Dr Lam’s focus was not about his work. However, when he was further cross-examined, he said Dr Lam did not ask him anything about how his daily life was affected by the injuries, but his solicitors did;

(e)   I do not accept the plaintiff’s evidence that neither his solicitors nor Dr Lam had focused on both his work and his daily life.  I am of the view that such an explanation was only given as a desperate attempt on the part of the plaintiff to salvage his case.  It is apparent that both his daily life and his work have been covered by both his witness statement and the expert report.

21.In any event, Mr Ho accepted that whenever there is any difference in the description of the plaintiff’s condition as at January 2016 between paragraph 18 of the plaintiff’s witness statement and the expert report, the expert report should prevail.  I shall therefore assess the appropriate amount of PSLA in due course on this basis.

22.Despite his aforesaid concession, Mr Ho still tried to explain the differences by suggesting that the plaintiff had probably given his instructions to his solicitors for the purpose of his witness statement much earlier than 2 weeks before 25 January 2016.  Mr Ho suggested that the plaintiff might well have given his solicitors instructions 6 months or even 1 year before he eventually signed his witness statement on 25 January 2016.  I am unable to accept this submission because it is totally unsupported by evidence.

23.Apart from the condition outlined in paragraph 18 of the witness statement, the plaintiff has also set out his condition “after the accident” in paragraph 22 thereof.  The following problems do not appear in the expert’s report (those in relation to the plaintiff’s left leg are omitted here because of my finding in paragraph 14 above):

(a)   weakness of his back;

(b)   intensified back pain when he bended; and

(c)   it was inconvenient for him to move around because of his back pain.

24.When he was cross-examined on these discrepancies, the plaintiff explained that those problems contained in paragraph 22 of his witness statement were only present within the first two years after the accident.  As a result, he did not mention about these when he was examined by Dr Lam.

25.Mr Cheng argued that the plaintiff had exaggerated his pain and inconvenience suffered in the first two years after the accident.  It was submitted that the plaintiff was incredible and the explanation was only made up when he gave his evidence in court. 

26.However, as admitted by Mr Cheng, there is no medical evidence or other document which contradicts the plaintiff’s evidence in this regard. 

27.To the contrary, the plaintiff’s case is in some way supported by the contemporary medical reports.  For example, in the physiotherapy report dated 10 January 2013, it was recorded that at the time of the initial assessment which took place on 9 May 2012, the plaintiff’s range of motion was reduced with pain.  The condition remained the same after two months of treatment.

28.I therefore accept that the plaintiff’s condition within the first two years after the accident was as described in paragraph 22 of his witness statement.  However, as Mr Ho put it, the plaintiff has recovered quite substantially afterwards.  I will take all these matters into account when I assess the amount of PSLA.

The amount of damages

29.Parties have referred this court to the following authorities:

(a)   Thapa Surendra v E W Cox Hong Kong Limited (HCPI 451/2009, unreported, 11 July 2011);

(b)   Ng Koon Ki v Hilti (Hong Kong) Ltd & Another [2004] 2 HKLRD 634;

(c)   Tamang Rabichandra v VSL SWC (a firm) & Another (HCPI 659/2007, unreported, 17 September 2008);

(d)   Wong Yun Chiu v Union Printing Company Limited (HCPI 282/2009, unreported, 29 July 2011);

(e)   Altaf Ahmed v Innovative Network Engineering Company Limited & Another (HCPI 237/2008, unreported, 21 December 2010);

(f)   Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599;

(g)   Chau Chin To Chadow v Wing Fung Financial Group Limited (HCPI 163/2015, unreported, 1 August 2017);

(h)   Shek Kam Ching v Po Kee Construction Engineering Ltd & Others [2002] 3 HKLRD 795;

(i)   Rai Gehendra Raj v Yick Hing Construction Company Limited (HCPI 48/2012, unreported, 31 August 2017);

(j)   Gurung Devchandra v Pacific Construction (HK) Co., Limited & Another (HCPI 138/2011, unreported, 14 July 2014); and

(k)   Wong Kwok Wai v Jardine Air Terminal Services Limited (HCPI 335/2014, unreported, 17 August 2017).

30.Having considered the above authorities, and bearing in mind the case of David John Slater v Commissioner of Police (HCPI 646/2012, unreported, 7 July 2017) in which Bharwaney J held that the damages for serious injury category shall start at $530,000 from 7 July 2017, it is my view that the appropriate award for PSLA should be in the sum of $220,000.

LOSS OF EARNINGS SINCE 15 SEPTEMBER 2013

31.The plaintiff worked as a general worker in a construction site before the accident on 29 March 2012.  There is no dispute that on average he worked for 24 days a month.

32.It is also undisputed that the plaintiff is unsuitable to return to his pre-accident job as a heavy-duty general construction site worker after the accident.  However, in Dr Lam’s opinion, the plaintiff should be able to cope with lighter duty jobs such as aluminium outfit installation worker which was what the plaintiff was doing in January 2016.

33.The plaintiff’s case is that after the expiry of the sick leave period in March 2013, he has been able to work as an aluminium boards installation worker and earn the same daily wage as in his pre-accident job.  However, it is argued that because of the plaintiff’s physical condition, he has been unable to work for 24 days a month anymore, and as a result, he has suffered loss of earnings.

34.The 1^st defendant did not take issue with the plaintiff’s claim of loss of earnings for the period between the date of the accident and 14 September 2013 (a total sum of $222,714). However, it was submitted on behalf of the 1^st defendant that the plaintiff has been able to work for 24 days since 15 September 2013 and therefore has suffered no loss of earnings since then.

35.I accept the submissions made on behalf of the 1^st defendant for the following reasons:

(a)   According to expert report, the plaintiff told Dr Lam that he had resumed work in August 2013 as an aluminium outfit installation worker for buildings and had worked for 8 hours per day and 6 days per week;

(b)   The plaintiff’s evidence that he did not tell Dr Lam that he could not work for 6 days a week because Dr Lam had not asked him about his ability to do so is rejected.  I also do not accept the plaintiff’s assertion that, by reference to “8 hours a day and 6 days per week”, he was only talking about the work available. I do not believe that the plaintiff would have omitted to tell Dr Lam about his inability to work for 24 days a month if that was the truth;

(c)   The plaintiff has in his oral evidence agreed more than once that if work was available, he would be willing to work for 6 days per week;

(d)   It was the plaintiff’s evidence that generally speaking, he could endure the pain, even though the pain would be intensified at times (which happened once every 2 or 3 days since around 2014).  However, he also said that if he was in such a great pain, all he needed to do was to rest for 15 minutes or so, and after that he could resume what he was doing again.  Further, he stated that he would not lose his job even if he had to rest for 15 minutes in the course of his work; and

(e)   Having considered all the evidence, I am of the view that the plaintiff has failed to prove on the balance of probabilities that he has been unable to work for 24 days a month since 15 September 2013 by reason of his physical condition.

36.I also do not agree with Mr Ho that the tax information sheet which was provided to the Inland Revenue Department by a company known as Pyrotech Fire Proof Engineering Limited (the plaintiff’s employer in the period between 9 February 2015 and 31 March 2015) assists the plaintiff.  Although this document shows that the plaintiff has only worked for 30 days out of a total of 41 working days, in my view, the plaintiff has failed to prove that this was due to his physical condition as opposed to inadequate work provided by the said company.

37.I therefore make no award for loss of earnings for the pre-trial period starting from 15 September 2013.  The plaintiff’s claim for future loss of earnings is also rejected on the same basis.

SUMMARY OF AWARDS

38.A summary of the amount of damages agreed and my awards is as follows:

PSLA	$220,000
Pre-trial loss of earnings	$222,714
Special damages	$2,600
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Sub-total:	$445,314
Less: employees’ compensation:	$154,265
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Net Award:	$291,049

INTEREST

39.I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ up to the date of judgment.  I also award interest on the total sum of $225,314 for pre-trial loss of earnings and special damages at the rate of 4% per annum from the date of the accident to the date of judgment.

COSTS

40.I make an order nisi that the defendants shall pay the plaintiff his costs to be taxed, if not agreed, on the District Court scale.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

41.In the absence of application within 14 days to vary, this costs order shall become absolute.

Mr B. K. Ho, instructed by Messrs. Lau & Chan, for the plaintiff

Mr. Bosco Cheng, instructed by Messrs. Lui & Law, for the 1^st defendant

王聯權 was not represented and did not appear