Pangma Dambar Dhoj v. Dragages Hong Kong Ltd and Another

CACV 112/2017

[2018] HKCA 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2017

(ON APPEAL FROM HCPI NO 76 OF 2014)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Judgment of the Court) :

1.This is an appeal by the plaintiff against the judgment of Deputy High Court Judge Saunders (“the Judge”) dated 15 May 2015, dismissing his claim for damages for personal injuries.  At the hearing on 2 May 2018, the plaintiff, acting in person, did not appear.  Having heard the defendants’ counsel, Mr Simon Wong, we dismissed the appeal with costs.  We indicated that we would hand down the reasons for judgment later, which we now do.

JUDGMENT BELOW

2.The plaintiff was an employee of the 1^st defendant.  The 1^st defendant was a subcontractor of the 2^nd defendant, who was the principal contractor for the works at a construction site in Cheung Sha Wan.

3.On 12 December 2011, the plaintiff, in the course of his duties, was instructed to assist in manually opening and closing a heavy metal gate at the main entrance of the site to allow lorries to enter and leave the site.  While he was pushing the metal gate to close it, the plaintiff’s right ankle sustained injury.

4.On liability, the Judge found the defendants liable for negligence in respect of the injury caused to the plaintiff.  However, he also found that the plaintiff was 25% liable in contributory negligence.

5.On quantum, the Judge, after considering the conflicting medical evidence adduced by the parties, accepted and preferred the evidence of Dr Henry Ho Ching Lun, the defendants’ orthopaedic expert and rejected that of Dr Wong Chin Hong, the plaintiff’s orthopaedic expert.  He then concluded that the accident that the plaintiff suffered on 12 December 2011 was not the cause of the conditions of right heel pain that he experienced at the time of the trial.  On the contrary, the Judge found that the evidence established on a balance of probabilities that his then conditions and pain were unrelated to any injury he suffered in the accident.  On that basis, the Judge dismissed the plaintiff’s claims in their entirety.

THE JUDGE ERRED

6.In the notice of appeal, the plaintiff basically sought to challenge the various findings made by the Judge on liability, but the plaintiff was unable to show that the Judge’s findings were plainly wrong for the Court of Appeal to interfere.

7.However, with respect, the Judge erred in the way he disposed of the case on quantum.  As was fairly conceded by Mr Wong for the defendants, although the plaintiff’s subsequent right heel pain and his conditions at trial were unrelated to the accident, the plaintiff did suffer from the accident an injury to his right ankle, entitling him to damages accordingly.  The Judge should have assessed the damages attributable to that injury but failed to do so.

ASSESSMENT OF DAMAGES

8.In this regard, Mr Wong had very helpfully pointed out that based on the undisputed medical evidence :

(1)   The accident did not result in any fracture, wound or even bruise on the plaintiff’s right ankle.

(2)   By the end of December 2011 (about 2 weeks after the accident), the plaintiff’s condition had become satisfactory (mild tenderness only with normal gait and normal range of movement).

(3)   By the end of March 2012 (about 3.5 months after accident), the plaintiff’s condition must have improved (almost no tenderness, satisfactory ankle movement, pain free).  Even the plaintiff’s treating doctor, Dr Patrick Wong, kept advising the plaintiff to return to work because he only had “mild symptoms”.

(4)   In May 2012, significantly, there was no more tenderness over the original site of medial and lateral malleolus.  But he started to complain about slight tenderness over medial side of right heel, which was a different location.

(5)   In September 2012, the plaintiff complained of burning sensation over medial aspect of right foot, (which was a different location from the ankle where he suffered injury from the accident) for 2-3 months.  MRI in March 2013 showed retro-calcaneal bursitis.

9.Further, according to Dr Ho’s evidence, which was accepted by the Judge :

(1)   The plaintiff had a minor contusion of the soft tissues of the right ankle.  It was a minor injury.

(2)   The plaintiff had a good clinical recovery.  At the joint assessment, there was no swelling, bruising or deformity.  There was no loss of ankle motion or muscle wasting in his right lower limb.  The prognosis was excellent, and he should not be suffering from disabling symptoms.

(3)   The plaintiff should be fit to return to his pre-injury job without much difficulty.

10.In the circumstances, the evidence showed clearly that :

(1)   As a result of the accident, the plaintiff only suffered from a minor contusion of the soft tissues of his right ankle.

(2)   Such contusion had recovered fairly well by end March 2012 (when Dr Patrick Wong observed “minimal swelling and almost no tenderness; ankle movement was satisfactory and pain-free”), and in any event was well recovered by 16 May 2012 (when Lady Trench GOPC report recorded no more tenderness over the medial and lateral malleolus).

(3)   The plaintiff had not been suffering from disabling symptoms.  He was fit to return to his pre-injury job without difficulty.

11.Against the above medical conditions of the plaintiff at the material times, he was granted sick leave certificates intermittently between 13 December 2011 and 23 January 2013.  Mr Wong took issue with the length of the sick leave.  He drew our attention to the following matters :

(1)   The opinion of Dr Ho was that given the minor injury, sick leave should not be more than 6 weeks (or 1.5 months) i.e. up to end January 2012.

(2)   The plaintiff’s treating doctor Dr Patrick Wong suggested the plaintiff return to work at end March 2012.  At that time, the plaintiff had “almost no tenderness”, “satisfactory ankle movement and pain free”.

(3)   On 16 May 2012, there was no more tenderness over the medial and lateral malleolus.

12.Mr Wong submitted that even taking the most generous view in favour of the plaintiff, the appropriate sick leave period should have ended in mid-May 2012.  In light of the plaintiff’s condition, there should be no award of loss of earnings thereafter.  There should be no award of loss of earning capacity either.  Mr Wong then computed the highest award that the plaintiff might be able to obtain as follows :

Appropriate Sick Leave Period	5 months
PSLA	$80,000
Pre-trial loss of earnings & MPF	$97,629
Medical and traveling expenses	$5,000
Sub-total	$182,629
(Less contributory negligence 25%)	($45,657)
Total	$136,972

13.We agreed with Mr Wong.

14.It is not disputed that the plaintiff had already received employee’s compensation in the sum of HK$257,051.59. In other words, even had the Judge properly assessed quantum, the highest award that the plaintiff might be able to obtain would not have exceeded the employee’s compensation he had already received.  The plaintiff’s claims for damages would have to be dismissed on that basis.

CONCLUSION

15.It was for the above reasons that we dismissed the plaintiff’s appeal.

The plaintiff, unrepresented, did not appear

Mr Simon Wong, instructed by Deacons, for the 1^st and 2^nd defendants