Rai Dipak Kumar v. Dragages Hong Kong Ltd

HCPI 739/2017

[2019] HKCFI 728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 739 OF 2017

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BETWEEN

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D E C I S I O N

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1.The Plaintiff was a construction site mechanic. An accident happened to him on 16 October 2015 (“the accident”).

2.At about 3.30 am on that day, the Plaintiff was standing inside a metal cage called the cherry picker for the purpose of installing a big cylindrical fan at the ceiling, together with other workers.

3.The Plaintiff was injured when the cylindrical fan fell onto his cherry picker.

4.His employer (the Defendant) admitted liability of his common law claim for damages, and judgment was entered on 23 October 2018.

5.This is the decision on assessment of the Plaintiff’s damages.

History of injuries and treatment

6.Immediately after the accident, the Plaintiff was sent to the A&E Department of the North District Hospital.  He complained of left chest wall and left knee pain.

7.Examination showed tenderness over the left chest wall and the left knee.  The cervical spine was non-tender with full range of motion.  X-ray of chest, ribs and left knee showed no fracture.  CT scan of the brain showed no fracture or haemorrhage.  He was then admitted to the surgical ward.

8.The report of Dr Siu of the Department of Surgery of the North District Hospital shows that the Plaintiff presented with left chest wall contusion.  He also complained of left knee and right lower back pain.  Examination revealed mild tenderness at left paraspinal muscles of the low back.  Local tenderness was noted at the medial side of the left knee with no significant effusion.  X-ray of the lumbosacral spine showed spondylotic changes with slight decrease in L5/S1 disc space.  X-ray and CT scan of the left knee showed no fracture.  He was managed conservatively with analgesics, hinged knee brace and physiotherapy.

9.MRI reports on the left knee and the spine were done.  The report on the left knee showed small area of marrow edema at the posteromedial corner of the left distal medial femoral epicondyle with overlying bursal fluid.  It was queried if it was related to the trauma.  There was also a small amount of probable reactive bursal fluid between left distal lateral femoral epicondyle and the Iliotibial tract.  MRI report on the lumbar spine showed desiccation of the L5/S1 disc with small right posterior paramedian marginal annular tear and a small associated focal prolapsed intervertebral disc.

10.The Plaintiff was subsequently referred to the Department of Orthopaedics and Traumatology of the Pamela Youde Nethersole Eastern Hospital on 13 January 2016.  At that time, his chief complaint was low back pain and left medial knee pain.  Back examination revealed diffuse tenderness over the lower lumbar spine.  Knee examination revealed medial joint line tenderness.  There was no effusion nor ligamentous laxity.  X-ray showed normal alignment of the lumbar spine.  There was no spinal fracture or any fracture around the knee.

11.MRI of the lumbar spine showed a small prolapsed intervertebral disc at L5/S1.  MRI of the knee showed a small area of marrow edema at the medial epicondyle possibly related to trauma. 

12.The diagnosis was back and knee contusion. 

13.He was then referred to physiotherapy and occupational therapy for conservative treatment. 

14.The physiotherapy report showed that the Plaintiff attended treatment from 3 November 2015 to 15 July 2016. During the final assessment upon discharge on 15 July 2016, the Plaintiff still complained of low back pain and left knee pain.  Examination of the left knee showed tenderness at the medial joint line.  There was positive valgus stress with pain elicited.  As for the lower back, range of movement allowed flexion to knee level with no pain elicited.  Extension was 3/4 normal range with no pain elicited.  The percentage improvement was 60 – 80% overall improvement.

15.Occupational therapy report showed that the Plaintiff received treatment until 8 July 2016.  At the final assessment, the Plaintiff tolerated training activities for almost two hours.  He could lift 25 lbs from floor to knuckle level and also form knuckle to waist level.  He could carry 18 lbs with either his right or left hand.

16.The Plaintiff also attended private treatment with Dr David Ip on 26 January 2017.  Examination by Dr Ip revealed active inflammation of the lumbar spine and left knee joint.  MRI of the spine showed annular tear of L5/S1.  He was treated with low-level laser, ultrasound and therapy.

The joint medical report — Dr Ko and Dr Lee

17.At para 4 of the joint medical report:

“ 4.  We agree on the examination findings. Examination of the lumbar spine revealed tenderness at the L5 at the lumbosacral junction. There was no muscle spasm. Flexion allowed his fingers to reach the mid shin. There was no root tension sign. Muscle power was normal and there was no neurological deficit. The simulation tests were all negative. As for the left knee, there was no effusion. There was mild tenderness over the medial joint line with positive patellofemoral grinding. Range of movements was full and equal on both sides. There was no significant unilateral muscle atrophy of the left thigh and calf. There was no ligamentous laxity in both knees and the McMurray’s test was negative.

X-rays of both knees taken on the day of examination showed no narrowing of the articular space.  There is no bony abnormality. X-rays of the lumbar spine showed normal antero-posterior alignment.  The lordosis was slightly reduced.  There were mild degenerative changes at the L3/4 and L4/5 discs.”

18.It was Dr Ko’s view that the examination findings were consistent with the previous findings which showed that there was no significant objective abnormality in both regions except for the Plaintiff’s subjective complaint of pain on palpation of the low back at lumbosacral junction on the medial joint line.  The clinical findings and MRI findings on the low back and left knee showed no significant structural derangement and showed no significant anatomic or organic pathology.

19.As regards disability, Dr Lee took the view that the findings at the joint examination were consistent with some residual low back pain and knee pain after an injury.  He believed the Plaintiff “could have impaired ability to perform various strenuous activities due to the aftermath of the left knee and back injury.”

20.On the other hand, Dr Ko relied on the clinical examination and MRI findings.  They showed no significant anatomic, pathological or organic abnormality in the spine and left knee.  “Considering the nature of the injury as well as his performance as reported by occupational therapy upon discharge in early July 2016”, Dr Ko opined that the Plaintiff “should have reached maximal medical improvement and static condition by around 6 – 8 months after the accident.”  Considering his pre-accident job nature and requirements, Dr Ko believed that “he should have been able to resume his pre-accident job at his full capacity in 6 – 8 months after the … accident without any impairment of his work efficient [sic] and effectiveness.”

21.The prognosis appears to be good for both doctors. 

22.As regards employability:

“ 7.  Dr. Lee opines that Mr. Rai may encounter difficulty when he returns to work as a mechanic in construction site. Because of the potential impaired ability to lift weight after the back injury and residual pain in the left knee upon strenuous exertion, he may need adjustment in his work to such a degree that he might have difficulty maintaining the work efficiency required of in his pre-accident job. Change to work as a mechanic in a lighter type of setting or his current job as a security guard may be more appropriate.

Dr. Ko opines that Mr. Rai should have been able to resume his pre-accident job at his full capacity without any impairment of his work efficiency and effectiveness by around 6–8 months after the occurrence of the alleged accident.”

Parties’ disputes

23.The areas of differences between the parties can be gleaned in the different heads of claims, which will be further elaborated below.

24.In short and in gist, Mr Leung insists the Plaintiff is unable to resume his pre-accident work as a construction site worker; whereas Mr Cao for the Defendant takes the strong view that the Plaintiff can, and could have re-commenced his pre-injury occupation nine months after the accident (about July 2016). 

25.The Defendant takes the view that the Plaintiff was exaggerating his pain and his inability to resume work at the construction site.  The Defendant also takes issue with the Plaintiff’s sick leave period.   

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

26.Mr Leung claims $360,000 and Mr Cao said $80,000 in his Reply to Plaintiff’s Statement of Damages but $280,000 in his closing submission.

27.Considering all the evidence, I am of the view that the Plaintiff’s injuries were far below the serious injuries category, the award of which the parties agreed to be starting at $548,000.  The evidence is quite clear that the Plaintiff was only left with mild tenderness on the left knee and lower back.  There was no anatomic, pathological or organic abnormality in the spine and left knee and the prognosis was good.

28.Both parties have cited a number of comparables to me.  Amongst them, I find Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407 (CACV 264/2011, 25 October 2012) to be the closest comparable.  In that case, the plaintiff suffered injuries in his lower back, left knee and head, with no fracture.  The plaintiff received six months’ physiotherapy treatment.  The joint medical experts found paraspinal muscle spasm, plus soft tissue contusion injury to the low back, contusion injury to the left knee and head injury.  The experts agreed there was genuine residual back pain and stiffness; they also found mild left knee weakness.  The Master awarded $300,000 for PSLA which was described by the Court of Appeal as within range although on the generous side.

29.Tong Siu Wai was a 2012 decision.  Taking into account:

(a)  the starting point for award of serious injuries category is now $548,000; 

(b)  the injuries suffered by the Plaintiff in the present case are less serious than the plaintiff in Tong Siu Wai; and

(c)  the Court of Appeal’s comment that the award in Tong Siu Wai was a generous one,

I consider an award of $220,000 for PSLA is appropriate.

Pre-trial loss of earnings

30.I have to decide whether the Plaintiff could resume his pre-accident employment. 

31.I find that he could.  The clinical findings, the findings in the joint medical report, the findings in the physiotherapy and occupational therapy reports do not support the Plaintiff’s current complaints (set out below), which cripple his ability to return to work as a construction site mechanic:

(a)   Lower back

-  On and off low back pain

(i)  when there was too much movement on the back;

(ii)  after sitting for about 10 – 15 minutes, and stiffness when getting up;

(iii)  during change of weather;

(iv)  after alcohol consumption;

(v)  maintaining the same posture during sleep, needing to change position frequently with the pain disturbing his sleep;

(vi)  upon bending of the hips and knees.

-  Burning pain and/or needle pain.

-  Feeling of frozen back upon waking up in the morning.

-  Feeling of frozen back after sitting for a long time.

-  Can squat fully but with pain increasing.

-  Aggravated pain with exertion on the back.

(b)  Left knee

-  On and off pain, increasing when

(i)  Too much movement such as walking for 5 – 10 minutes, but can continue to walk until after 30 minutes when the pain forced him to stop;

(ii)  Change of weather;

(iii)  Alcohol consumption;

(iv)  Bending and straightening of the knee;

(v)  During sleep;

(vi)  For too long at the same posture.

-  Feeling of needle pain or burning pain.

-  Feeling of frozen knee after sitting with knee bent for a long time (20 – 30 minutes) or during sleep.

-  Increased pain when walking with a load, say 10 kg.

-  Increased pain after walking with a load, say 10 kg for about 5 minutes even after putting down the load.

-  Tenderness on medial side of knee and needs to put pillow between the knees to avoid pain.

-  Increasing pain when left knee is twisted.

32.I agree with Mr Cao that the Plaintiff tends to exaggerate his pain and complaints.  Without alluding to every detail during cross-‌examination and without repeating all the findings in the reports which have been detailed above, it suffices to add / stress that:

(a)  the clinical findings of the A&E of North District Hospital upon his admission were only mild tenderness on the left chest and left knee;

(b)  there was no record of burning pain on the left knee or lower back;

(c)  there was no record of the need to take pain killers regularly to relieve whether the lower back pain or the left knee pain;

(d)  there was no record or no consistent record of complaints of such a serious nature as he now asserts in any of the medical reports or physiotherapy or occupational therapy reports;

(e)  in the physiotherapy report dated 3 November 2015, he actually answered negative to night pain, morning stiffness etc. to his back; and negative to night pain and resting pain in relation to his left knee;

(f)  he was able to endure a two-hour therapy training session, lifting 25 lbs from floor to knuckle level and also from knuckle to waist level, carrying 18 lbs with either his right or left hand; and

(g)  he was able to give evidence continuously for over one hour with no sign of pain, no request for break, no request for standing up to relax, etc. 

(h)  I am aware of Mr Leung’s submission that all the aforesaid was consistent with the Plaintiff’s complaint of “on and off” pain.  But having heard his evidence, the Plaintiff struck as articulate and able to express his complaints.  It is difficult to believe he would have omitted to mention his pain, be it “on and off” or continuous or pain of whatsoever nature to the doctors and experts during the course of his treatment.  I was particularly unimpressed by his evidence that he did mention great pain on the back but the doctor did not write it down.  Mr Leung said the Plaintiff was credible.  He explained that doctors in public hospital are known to be busy and it was possible they might have omitted the Plaintiff’s complaint.  I reject this explanation.  There is no evidence to suggest that the doctors were too busy to heed the Plaintiff’s complaints in this case.

33.The Defendant also takes issue with the period of sick leave. 

34.The Plaintiff produced medical sick leave certificates covering the period from 16 October 2015 to 31 May 2017, i.e. 19.5 months.  Mr Leung said the Plaintiff should be entitled to the full period of 19.5 months, relying on the proposition that there is nothing to support the sick leave certificates were improperly granted, enunciated in the following cases.

35.Zheng Biao v Kwok Wai Lung HCPI 155/2001, 25 June 2004, at §33, DHCJ Saunders said:

“ … While it may well be that a person suffering from the same injuries might have gone back to work earlier, in the absence of any evidence to challenge the validity of the sick leave certificates for the period of two years and five months, upon which Mr Zheng was entitled to rely, I am satisfied that the period of sick leave cannot be challenged. It is right that both orthopaedic surgeons have said that a shorter period would be appropriate, but neither directly questions the validity of sick leave certificates issued.”

36.Suffiad J in Li Wan Kei v Hyundai Engineering & Construction Co Ltd HCPI 577/2004, 6 March 2006, said:

“ 54.  The plaintiff has been granted sick leave by government doctor until May 2006. However, no steps had been taken by the defendant to challenge or even question the sick leave granted by government doctors. In those circumstances, the fact that the defendant’s expert may have suggested a shorter period of sick leave to be reasonable in this case is neither here nor there.

55.  In this respect, the words of Deputy Judge Saunders in the case of Zheng Biao v Kwok Wai Lung (HCPI 115/2001) are directly applicable where he said:

…

56.  In the circumstances, there is no reason why the plaintiff should not be entitled to claim full loss of earnings for the sick leave period granted to him save and except for the short period of time when he actually did return to work for the defendant….”

37.Master Woolley in Singh Satnam v Wong Chun Fung HCPI 786/2009, 27 April 2011, held that:

“ 14. … In the absence of any evidence that the sick leave certificates were not properly granted, I cannot rely on a statement by one doctor that a shorter period should be given. I am supported in this view by the judgment of Deputy Judge Saunders, as he then was, in Zheng Biao v Kwok Wai Lung HCPI 115 of 2001, where two orthopaedic surgeons said a shorter period was appropriate, and that of Suffiad J in Li Wan Kei v Hyundai Engineering & Construction Company Ltd HCPI 577 of 2004, in similar circumstances to this.”

38.On the other hand, Mr Cao referred to the Court of Appeal decision which did not seem to endorse this approach.  In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 (CACV 208/2007, 8 April 2008), Le Pichon JA said:

“ 18.  Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

39.I will not and cannot depart from the sound reasoning of the Court of Appeal. 

40.The entirety of the evidence clearly suggests that the Plaintiff could return to work from the time when he was discharged from all treatments, i.e., July 2016.  In particular, it is noted that Dr Lee remarked that “the sick leave given to Mr. Rai is appropriate for his injury” with no elaboration. On the other hand, Dr Ko’s opinion on sick leave was supported by clinical findings and findings of the physiotherapy and occupational therapy reports.

41.I agree with the Defendant the Plaintiff needed two months to find and return to work, which took him to start work in about the middle of September 2016.   

42.The parties agreed that the Plaintiff was earning $37,797/month[1] before the accident in October 2015. 

43.According to the figures published by the Census and Statistics Department, the daily wage of a construction site mechanic in October 2015 was $1,137.7 and $1,251.3 in September 2016, representing a 0.0998, or 10% increase in daily wage.  Thus, the Plaintiff would have earned about $41,577/month in September 2016.

44.Taking the median figure, the Plaintiff’s monthly income during this sick leave period should be ($41,577 + $37,797) ÷ 2 = $39,687.

45.Thus, the pre-trial loss of earnings:

$39,687 × 11 months = $436,557

Pre-trial loss of MPF

46.The pre-trial loss of MPF:

$1,500 × 11 months = $16,500

Future loss of earnings

47.It follows from the reasoning above that the Plaintiff will not suffer any future loss of earnings.

48.It is obvious that upon discharge in July 2016, the Plaintiff had reached the optimal level of recovery, with no significant abnormality on the back and on the left knee, no significant structural derangement, no significant anatomic, pathological or organic abnormality in the spine and left knee, and with good prognosis, except for his subjective complaints of pain on the lower back and left knee. 

49.As said above, I discount his subjective complaint of pain, articulated above and which I find to be exaggerating. 

50.I note Dr Lee’s remark that there was slight decrease in girths which might be due to some disuse. But I also note the slight decrease was still within the normal variation found between limbs.  Exercise to train or strengthen the back and knee regions will help the resumption of his ability to work as a mechanic at the construction site.

51.I accept Dr Ko’s evidence which was based on solid clinical findings and medical evidence.  I agree with Mr Cao that Dr Lee’s evidence that the Plaintiff “could be” suffering from residual pain, “could have” impaired ability to undertake strenuous activities, “might” encounter difficulty to work as a mechanic, verges on speculation.

52.I respectfully refer to the words of Bharwaney J in Gurung Bhakta Bahadur vs. Green Valley Landfill Ltd HCPI 333/2009, 28 January 2011:

“ 48. … I must assess damages in this case based on the actual injury suffered by the plaintiff and its current impact on the plaintiff’s earning capacity, ….” [emphasis added]

53.I find that the actual injury did not prevent the Plaintiff from resuming work as a construction site mechanic.  Accordingly, he suffers no future loss of earnings.

Loss of earning capacity

54.In the Gurung’s case, Bharwaney J explained the basis for making an award for loss of earning capacity:

“ 48.  I see no basis to award the plaintiff any partial loss of earnings thereafter, either for the pre-trial or post-trial periods. I accept the evidence of Dr Cheng that his injury was a simple sprain without any complications. The joint examination showed that there was little physical impairment. Dr Cheng was of the opinion that the plaintiff should have been able to resume his pre-accident job of a construction site worker, and that there was no need for job change or job restriction. I am wholly unable to accept the evidence of Dr Wong which is not supported by the findings made at the joint examination. Dr Wong expressed the opinion that the Plaintiff’s ability to carry and lift heavy loads was compromised and that he would need to modify his work to reduce heavy exertion and lifting, and that in the absence of such modification, he would need to search jobs of lighter nature, such as car park attendant and office worker. Certainly, the occurrence of this sprained injury has made the plaintiff more vulnerable. A future occurrence of back injury may render him more seriously impaired and unfit to continue heavy manual work. However, I must assess damages in this case based on the actual injury suffered by the plaintiff and its current impact on the plaintiff’s earning capacity, and I find that, apart from the period covered by his sick leave certificates, he is able to return to his pre-accident employment but with this added vulnerability, which might impact on his future earning capacity. In my judgment, this is a classic case for an award of damages for loss of earning capacity. The plaintiff is under a continuing duty to mitigate his loss and he has to be more conscious of his back problem. He must perform exercises to strengthen his back and to reduce the risk of re-injury. Having said that, however, it is reasonably foreseeable that he is at risk of spraining or injuring his back some time in the future at which point in time the cumulative effect of the present and the future injury may to impact adversely on his future earning capacity. Mindful of these considerations and the difference in the level of his pre-accident earnings and the earnings that he could procure in suitable less arduous employment, such as working as a security guard for example, I assess damages for loss of earning capacity on a global basis in the sum of $100,000.”      [emphasis added]

55.Mr Cao urged me to adopt seven months using the Plaintiff’s pre-accident income of $37,797 as the basis for the award.  Mr Leung submits 15 to 18 months’ loss of salaries. 

56.It seems the Plaintiff’s “vulnerability” as a result of his injuries and the risk of the Plaintiff being exposed to re-injury which might impact on his earning capacity can “never satisfactorily be measured on a mathematical basis.  It has to be, again, on an arbitrary basis.” per Seagroatt J at §47, Lung Kwong Ying v So Sai Lo & Ors [2002] 3 HKLRD 185.

57.Given that the Plaintiff is not a general labourer at the construction site and is supposed to be earning over $40,000/month now, he might encounter some difficulty finding substitute employment in case of re-injury or as a result of his vulnerability to risk of injury, I am inclined to award $42,545 × 8 months = $340,360.

58.I use his notional current earnings, $42,545/month, instead of $37,797/month as suggested by Mr Cao.  It is obvious that the compensation under this head is forward-looking and a projection of what might happen in the future, I see no basis of using his pre-accident earnings as the basis for the award. 

59.Following the statistics produced by the parties, it is noted that a mechanic at the construction site earned $1,251.3 per day in September 2016. The statistics also show that the daily wage of a mechanic was $1,280.5 in September 2018.  There was a 2.33% increase.  He was earning $41,577/month in September 2016.  Thus, the Plaintiff would have been making $42,545/month in September 2018.

Special damages

60.Special damages were agreed at $10,705.

Summary

61.In sum:

PSLA		$	220,000
Pre-trial loss of earnings		$	436,557
Pre-trial loss of MPF		$	16,500
Loss of earning capacity		$	340,360
Special damages		$	10,705
		$	1,024,122
Less   EC	(	$	634,728.08	)
		$	389,393.92

62.There will be interest at 2% per annum on general damages from the date of the writ, i.e., 12 July 2017 to the date of judgment; and interest on pre-trial losses and special damages at half judgment rate from the date of the accident, i.e., 16 October 2015 to the date of judgment.

63.And I so order.

64.I thank counsel for their assistance.

Mr Kevin Leung, instructed by How & Co, for the plaintiff

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