Bishwakarma Bhakta Bahadur v. Pacific Crown Security Services Ltd and Another

HCPI 232/2015

[2018] HKCFI 1912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 232 OF 2015

________________

________________

Before:  Deputy High Court Judge Leung in Court

Dates of Hearing:  16 and 17 July 2018

Date of Judgment:  30 August 2018

________________

J U D G M E N T

________________

1.The plaintiff (“Bishwakarma”) claims against the 1^stdefendant (“PCSS”), as his employer, and the 2^nd defendant (“Dragages”), as the principal contractor, of the construction site where he sustained personal injury in the course of work on 2 December 2013.

2.Bishwakarma started to work for PCSS as a general labourer on 11 November 2013.  He worked at one of the construction sites of the Hong Kong Kong–Zhuhai–Macao Bridge project.  After working there for 16 days, he had an accident at work whereby he slipped and fell, and his face hit an iron pillar.  He was sent to the Princess Margaret Hospital (“PMH”), where he was diagnosed to have suffered from left tripod fracture injury.

3.The defendants used to deny liability, and raised the issue that the accident, if it happened, was the result of Bishwakarma’s pre-existing physical condition.  Liability was conceded on the first day of the trial.  The trial was therefore on the quantum of damages.

Injuries, treatment and complaints

4.Bishwakarma had no wound or loss of consciousness as a result of the fall, but felt pain on his face and around his left eye.  At the hospital, facial swelling and tenderness were found.  He was treated and discharged.  For suspected fracture of his orbital rim, he was referred to eye surgeon for further management.  Left facial tripod fracture was eventually confirmed.

5.Due to alleged persistent pain on his left face, Bishwakarma continued his follow-up attendance at the PMH and Tuen Mun Eye Clinic.  In late April 2015, he started to attend Yuen Long Jockey Club General Outpatient Clinic (“YLJCGO”).  The sick leave issued by these bodies lasted until almost the end of July 2015, some 20 months in total.

6.Bishwakarma still complained about:

(1)  persistent pain, tenderness and numbness of the left facial tripod;

(2)  headache, and need to take painkillers;

(3)  difficulty in chewing and biting; and

(4)  sleep disturbance.

7.Bishwakarma also claimed loss of confidence and low self-esteem.

Orthopaedic expert opinion

8.Bishwakarma was examined on 17 July 2015 by Dr Wally Law and Dr David Cheng, as orthopaedic experts instructed on behalf of him and the defendants respectively.  They produced their joint report dated 22 September 2015.  On 15 January 2016, Dr Law produced his supplemental report.

9.The orthopaedic experts observed that Bishwakarma demonstrated good general health.  No wound or scar or facial nerve palsy was found.  Mild tenderness over the inferior orbit left side was detected.  So was reduced sensation to light touch on the left face below the left eye.  His eye movement was normal.  There was no hearing deficit or any other limb or spinal problem. X-ray revealed that the fracture had healed up without a trace.  The experts shared their diagnosis that there was no internal haemorrhage or visual involvement or hearing complications.  They also agreed that the treatment received by Bishwakarma was standard and appropriate, and he has reached maximum medical improvement.

10.As to the complaint about persistent numbness and pain on the left face, Dr Law opined that this was compatible with the involvement of the infra-orbital nerve.  In his supplemental report, Dr Law added that it was well documented that concomitant injury to the infra-orbital nerve was very common in cases of tripod fracture.

11.Dr Law opined that Bishwakarma would have persistent symptoms affecting his chewing and jaw movement, and the infra-orbital involvement would permanently cause him symptoms.  In his supplemental report, Dr Law added that the trauma to the face, the fracture and the associated bleeding, together formed scar tissue on the subcutaneous plane of the left face.  During movement of the jaw, the movement of the soft tissue of the face causes traction to such scar and the injured infra-orbital nerve, thereby causing symptoms described by Bishwakarma.

12.Dr Cheng disagreed.  Whilst he agreed that infra-orbital nerve injury was one of the possible complications of tripod fracture, the possibility in the present case was based on the subjective complaints of Bishwakarma.  Even if there were an infra-orbital nerve contusion, the nerve was a pre-sensory nerve, and movement of jaw and chewing was controlled by an entirely different set of cranial nerve.

13.Dr Law recommended further treatment for his left face pain and numbness on a required basis.  Oral painkillers would be necessary once every 3 months. Dr Cheng opined that the prognosis was good, and recommended no further treatment.

14.As to Bishwakarma’s working capacity, Dr Law opined that the persistent symptoms caused by the fracture and the neurological complications would cause him distress and affect his work efficiency as a construction worker.  Dr Cheng considered the effect of the injury on Bishwakarma to be mild, and he was perfectly capable of resuming his pre‑accident job or taking up any job he would wish.  Even if there were some irritation of the infra-orbital nerve of the face, this should be temporary, and should not affect his work in any way.

15.Dr Law considered the sick leave granted to Bishwakarma was reasonable and appropriate.  Dr Cheng opined that the contusion should take no more than 1 to 2 months to settle, and the factures should heal in 3 months.  In the absence of limb or body injury, sick leave of up to 4 months would be reasonable.  Dr Cheng specifically commented that the 20 months of sick leave was not justified in this case.

Neurological expert opinion

16.Bishwakarma was examined on 17 June 2016 by Dr Kan Yiu Ting and Dr Brian Choa, as neurological experts instructed on behalf of him and the defendants respectively. They produced their joint report dated 22 July 2016.

17.Whether the joint neurological expert report is and should be admissible in its entirety formed the subject matter of the summons taken out by Bishwakarma on 28 February 2018 and before me on the first day of the trial.

18.There is no dispute that the neurological experts were instructed to give their opinion on the issue of causation between the pre-existing condition[1] of Bishwakarma and the alleged slip-and-fall accident.  As mentioned, the issue was raised in the defence.  However, in their joint report dated 22 July 2016, the experts collectively went beyond the ambit of their engagement, and gave their opinion on both the causation issue and the neurological impact of the tripod fracture injury on Bishwakarma—essentially what would have been expected of a full medical expert report.

19.Bishwakarma then revised his statement of damages in September 2016.  In the same month, PCCS and Dragages filed their answers.  In answering the pleading as to alleged injury to the infra-orbital nerve and its alleged consequential persistent symptoms as well as permanent impact on Bishwakarma, PCSS and Dragages referred to the opinion of the neurological experts in these respects in their joint report.

20.Notwithstanding the above, the master subsequently directed that the joint neurological report should be adduced without oral evidence without qualification save that this would be subject to the trial judge’s direction.

21.By his summons, Bishwakarma now sought to limit the joint neurological expert report to the causation issue or alternatively to have the other parts of the joint report expunged.  PCSS and Dragages opposed.  At the hearing, Ms Leung for Bishwakarma eventually decided not to press on with the application. I accordingly dismissed the summons with costs to the defendants in any event to be taxed, if not agreed.

22.I would have dismissed the summons in any event.  I should explain why, as this would be relevant to the evaluation of the medical expert opinion.

23.There is no dispute that the court has the power to give direction in respect of expert evidence, albeit already adduced with previous leave of the court.  In the present case, the joint neurological expert report was adduced expressly subject to direction of the trial judge.

24.It is not a rule that medical expert evidence beyond the scope of its instruction to the experts must face mandatory exclusion.  All depends on the circumstances of each case, including the relevance of the evidence, the assistance that such evidence will render to the court in respect of the issues in dispute and any prejudice to any party if such evidence is admitted.  The discretion of the court will be exercised accordingly.

25.In the present case, Bishwakarma alleges injury to the infra-orbital nerve as a complication of his tripod fracture.  This allegedly caused him persistent pain and numbness on his left face.  Those were the persistent symptoms that would allegedly compromise his work efficiency as a construction worker.  He based such allegation on the opinion of Dr Law.  At one stage, PCSS and Dragages indeed queried whether Dr Law, as an orthopaedic expert, was in a position to give an opinion on the neurological impact of the fracture injury.  This was one of the reasons why Dr Law produced his supplemental report dated 15 January 2016.

26.Dr Law claimed expertise on the relevant neurology both on the basis that his specialty in orthopaedic and traumatology involves management of trauma, which would require knowledge of injury in all body parts including the face and nerves.  He considered that concomitant injury to the infra-orbital nerve is very common in tripod fracture, with reference to the published works he cited.  Dr Law saw no difference in how Dr Cheng approached the issue.

27.However, as mentioned, Dr Cheng only stated in the joint report that the involvement of the infra-orbital nerve was a possible complication of tripod fracture, and in the present case this would at the very highest be based on the subject complaints of Bishwakarma.  Whilst Dr Cheng also continued to express his opinion on the neurological impact on the working capacity of Bishwakarma, he made clear that he did so, merely assuming that the infra-orbital nerve was in fact involved.

28.It is obvious that Dr Law and Dr Cheng differed materially in respect of whether the infra-orbital nerve was injured and, if yes, its precise impact on Bishwakarma.  I would be skeptical about being asked to rely exclusively on the orthopaedic experts in respect of these issues, especially when they differed the way they did.

29.In the circumstances, neurological expert evidence for the purpose of resolving the uncertainty of and difference between the orthopaedic experts would have been relevant, even in the absence of the causation issue mentioned above that originally triggered the need for such expert evidence.  Such neurological expert opinion is in fact available to assist the court now.

30.Is any party prejudiced by admitting the neurological expert evidence in respect of the neurological impact of his injury?  In the circumstances of this case, I do not think so.  Let alone whether or not the point taken on behalf of Bishwakarma now was before the master when he ordered that the joint neurological report, in its entirety subject to the direction of the trial judge, should be adduced into evidence back in December 2016, the fact was that both sides’ neurological experts had the same opportunity of considering the issue after joint medical examination of Biswakarma as well as the study of the medical records and the orthopaedic expert reports.  Indeed, the neurological experts came up with an agreed opinion after that.  It would be artificial for Bishwakarma now to ask the court to accept the joint neurological expert opinion on the causation issue but to exclude the rest of the report, when it can hardly be suggested that the rest of the report is somehow less reliable[2] or that he would be unfairly prejudiced.

31.The neurological experts shared the following opinion:

(1)  The symptoms of Bishwakarma were consistent with an incomplete injury to the infra-orbital nerve due to fracture orbital floor.  This would amount to 2% impairment of the whole person and, given the lapse of time, should be regarded as permanent.

(2)  The paresthesia, dysesthesia and diminished sensations in the upper lid and eyebrow were anatomically inconsistent with an injury to the infra-orbital nerve or any other nerve possibly afflicted in the type of fracture as revealed by the CT scan.  This phenomenon was probably due to a subconscious exaggeration of the impaired sensation over the adjacent areas.  No additional impairment rating on this account would be justified.  The frontal headache did not appear to be significant or disabling to any extent and would not attract a separate impairment assessment either.

(3)  The impairment from an incomplete injury to the pure sensory infra-orbital nerve would not cause any risk, inconvenience or restraint in any occupation.  Hence no reduction in working or earning capacity.  Bishwakarma was not medically incapacitated from resuming his pre-accident job.

(4)  The fracture would have healed well and the sensory disturbances settled in months.  6 months of sick leave was recommended.

(5)  No further treatment was recommended.  The partial injury to a pure sensory nerve in the face was a minor problem, and no further assessment by other specialists was recommended.

Pain, suffering and loss of amenities (“PSLA”)

32.This is agreed at HK$230,000.

Pre-trial loss of earnings

33.Immediately prior to the accident, Bishwakarma earned a daily wage of HK$750.  Overtime and overnight allowance of HK$82 per hour and HK$150 per hour respectively were payable.  For assignment to work offshore, Bishwakarma was entitled to an extra HK$150 per shift of work.  For the 16 days of work immediately prior to the accident, Bishwakarma earned a total sum of HK$16,982 from PCSS.  In court, he confirmed that he had indeed been sent to work offshore and overnight during the 16 days.  The wage record shows he had overtime pay for 1 hour and HK$4,500 allowance for overnight and offshore work during the 16 days.  It is also common ground that Bishwakarma was and would have been required to work for 26 days a month.

34.Mr Cao for the defendants argued that there was no guarantee in respect of the work assignment and thus Bishwakarma’s entitlement to the allowances, had he not met the accident.  Put this way, his argument cannot be wrong in principle.  However, the court has to do the best it could and, in doing so, take a realistic view of the matter.  In the circumstances of this case, the best and fair way to factor in such uncertainty would be to assess Bishwakarma’s pre-accident income by reference to his average daily income over the 16 days before the accident.  On this basis, but for the accident, Bishwakarma could expect his monthly income, on a similar pattern as the 16 days, to have been HK$(16,982 ÷ 16 × 26) = say HK$27,600.  Indeed he projected this figure in his witness statement.

35.However, the above figure exceeds what was pleaded in the revised statement of damages, whereby he claimed to have been able to earn HK$27,300 per month but for the accident.  In the absence of amendment, he must abide by his pleaded case.  Mr Chan did not say otherwise in his closing.

36.As mentioned, Bishwakarma has been given sick leave for a total of 607 days (20 months) since the accident until late July 2015.  Amongst the sick leave certificates, the one dated 17 July 2014 for a period of 204 days was subject to scrutiny during the trial, because of the duration of sick leave given and the record of his condition as “surgical problem”, when Bishwakarma has received not surgical operation as such as a result of the accident.  In my view, this is probably red herring.

37.First, Bishwakarma was at one stage referred to the eye surgeon of PMH for further management upon his complaint about persistent pain.  Against this background, I see not much should arise out of how a single treating doctor might choose to categorise the patient’s condition in the sick leave certificate during follow-up.  Second, Bishwakarma accepted in court that the duration of sick leave was explained by the waiting time before the following follow-up appointment.

38.However, this is not to say that the reasonableness of the sick leave obtained by Bishwakarma is free from scrutiny[3]. In this respect, Dr Law’s opinion stands in substantial contrast with that of Dr Cheng and the neurological experts.  In court, Bishwakarma agreed that it was when the PMH stopped giving him further sick leave after late April 2015 that he changed to attend YLGOPC for addressing his alleged persistent symptoms.

39.Mr Cao also drew my attention to the fact that Bishwakarma travelled to Nepal for cataract extraction with intra-ocular–lens implant in late January 2014, which was two months after the accident.  He questioned how seriously Bishwakarma was suffering at the time when he managed to undertake such a trip.  Miss Leung for Bishwakarma submitted that not much weight should be attached to that observation, in the absence of cross examination in that particular respect during the trial.  In my view, the evidence, even without reference to such episode, suffices for my conclusion in respect of the reasonableness of the sick leave.

40.Seeing Bishwakarma give evidence, and considering his evidence as well as the medical evidence, I find that the sick leave obtained by Bishwakarma went far beyond what would have been reasonable in his circumstances.  I do not accept as a matter of fact that the condition of Bishwakarma was such that sick leave in excess of 6 months would be necessary.  Giving Bishwakarma some benefit of doubt, I find for the present purpose that sick leave for a period of 8 months would be generous yet reasonable.

41.In line with the above, I also do not accept as a matter of fact that Bishwakarma has become medically incapacitated, be it due to his tripod fracture or its neurological impact, to resume his pre-accident job after the expiry of his sick leave.  It follows that his pre-trial loss of earnings (MPF benefits included) was as follows:

HK$27,300 × 1.05 × 8 months = HK$229,320.

Loss of earning capacity

42.Since August 2015, Bishwakarma has been working as a security guard until now.  There is no claim for loss of future earnings.  This must mean that Bishwakarma accepts that he could have been able to resume his pre-accident job after the expiry of the sick leave even for the duration as he claims. However, he claims for loss of earning capacity.

43.Bishwakarma asserts disadvantage due to his alleged disabilities in the labour market, and claims a lump sum award equivalent to 12 months of earnings from the pre-accident job.  Evidence to prove the risk of not being able to retain his job or to seek another job offering him a similar income level in the future due to his condition would be mandatory[4].

44.I prefer the opinion of Dr Cheng and the neurological experts to that of Dr Law in this respect.  Accordingly, I doubt the basis for this head of claim.  This is the kind of case where the evidence really leaves no room to consider allowing any extent of this head of claim.

Other special damages

45.Medical and travelling expenses in the total sum of HK$4,495 was agreed.

46.Bishwakarma claims future medical expenses on the basis that he would require medical treatment for his alleged persistent pain in the face.  In court, Bishwakarma’s stance was he still had pain and there might still be some injury or disease and therefore the possible need for treatment in the future.  He claims for future medical expenses for the next 10 years in the sum of HK$20,000.  This is based on the opinion of Dr Law, which I do not prefer.  The opinion of Dr Cheng and the neurological experts in common points to no such necessity.

47.On the evidence, I am not convinced that Bishwakarma will have any long lasting symptoms perhaps except for headache or pain on the left side of his face occasionally.  Whilst I doubt whether Bishwakarma’s occasional need for oral painkillers for the alleged headache in the future would differ materially from that of any ordinary people, I am prepared to allow a nominal sum of HK$1,000.

Summary

48.The award will be as follows:

49.As Bishwakarma has to give credit to the employees’ compensation already received in the sum of HK$483,875.50, no award will be made.

Disposition

50.In view of the above outcome, the claim should be dismissed with costs to the defendants, subject to the following qualifications:

(1)  To reflect the responsibility of the defendants for their stance and the resultant costs incurred in respect of liability, which was conceded only on the first day of the trial, the defendants’ costs recoverable from the Bishwakarma shall be deducted by 20%.

(2)  Costs shall be taxed, if not agreed; Bishwakarma’s own costs up to the discharge of the legal aid certificate shall be taxed in accordance with legal aid regulations.

(3)  The costs order is nisi, and shall become absolute in the absence of application within 14 days to vary.

51.I thank counsel for their assistance.

Mr Vod K S Chan and Miss Shannon Leung, instructed by MCA Lai Solicitors LLP, for the plaintiff

Mr Yuan Shan Cao, instructed by Norton Rose Fulbright Hong Kong, for the defendant