Rai Tej Kumar v. Fulcrum Engineering & Construction Ltd and Another

HCPI 1151/2018

[2020] HKCFI 2097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1151 OF 2018

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Before:  Deputy High Court Judge To in Court

Dates of Trial:  15-17, 23 June 2020

Date of Judgment: 21 August 2020

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J U D G M E N T

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Introduction

1.This is a personal injury action in which the Plaintiff sues the Defendants for damages for personal injuries suffered in an accident arising out of and in the course of his employment on 8 August 2017.  The Plaintiff was a general labourer employed by the 1^st Defendant who is a subcontractor of the 2^nd Defendant.  There is no dispute that the Plaintiff suffered personal injuries arising out of and in the course of his employment with the 1^st Defendant in an accident which occurred on board a shipping vessel docked at the Tsing Yi Ship Repair Yard in Hong Kong. The dispute is how and where the accident occurred and the extent of the injury.

The parties’ case

2.The Plaintiff’s case is that at the material time he and two Nepalese co‑workers were instructed by a Korean foreman through a Nepalese welder, Thapa Phanendra (“Thapa”), as interpreter to manually move a steel sheet from the welding area to a distance of about two metres. The steel sheet was about 1 metre by 1.5 metres and 2.5 centimetres thick, weighing more than 100 kilogrammes.  The Plaintiff suggested to Thapa to move the sheet with a crane or to engage more workers if it must be moved manually, but was refused.

3.At the time of the accident, the Plaintiff was holding the edge of the steel sheet on the far left side while the other two co‑workers were holding the edge of the sheet on his right hand side.  Suddenly and without warning, his two co‑workers let go the sheet from their hands and the sheet immediately fell onto the ground injuring his left middle and ring fingers.

4.The Defendants’ case is that the accident occurred at a different location nearby under wholly different circumstances. The Plaintiff and his co‑workers, including Thapa, were moving a metal cylinder with a hydraulic crane.  The cylinder was made up of three separate and detached parts, a lid, the cylinder body and the base.  The cylinder body was resting on the base before the operation.  The lid had been removed and was placed on the floor by the base.  The cylinder body was secured to the crane with hoisting cables.  According to Thapa, he welded hooks to the cylinder body for securing hoisting cables.  Then after the cylinder body was secured, but before he had the opportunity to check if the area was cleared and before the rigger on duty had a chance to inspect if the cylinder body was properly secured, the Plaintiff who had asked the workers to stand clear of the cylinder body signalled to the crane operator with his right hand to lift the cylinder body while his left hand was still in contact with the cylinder body.  At the same time, the other workers also signalled to the crane operator to lift the cylinder body.  As the cylinder body was being lifted up, it swung.  The Plaintiff’s fingers were caught between the outside of the cylinder body and the inside of the cylinder base and injured.  The Defendants’ defence is that the Plaintiff was fully contributorily negligent.

5.I must say, not without any disrespect to the Defendants’ legal team, that the preparation of the Defendants’ case could not have been worse.  The defence was not properly pleaded.  Witness statements were not properly taken.  The proper witness was not called to testify.  According to the Defendants’ case as pleaded, the accident was caused by the Plaintiff leaving his hand in contact with the cylinder.  Mr. Li, counsel for the Defendants, was asked to properly put his case of the cause of the accident to the Plaintiff, ie how the Plaintiff’s hand could have been crushed or injured by being in contact with the cylinder.  He simply did not respond.  Probably, he could not respond and took no instructions as to how to respond.  Obviously, he took no hint from this court that he should clarify this matter with Thapa before Thapa was called after close of the Plaintiff’s case.  The cause of the accident as summarised in the preceding paragraphs is what this court understands from the evidence and not what was actually pleaded.  I did not require an amendment to the defence because in the course of the trial it became obvious that the Plaintiff knew what the Defendants’ case was.

6.The burden of proof of how the accident which caused the injuries occurred is on the plaintiff.  If contributory negligence is raised by the defendant, the defendant bears the burden of proof.  The disputes in this case are wholly factual.  The parties’ case stands or falls on the credibility and reliability of their witnesses.

Credibility of the parties’ witnesses

7.Credibility of the witnesses and reliability of their evidence are at the heart of this case.  The test of credibility is inherent probability.  Apart from considering the demeanour of the witnesses, the court makes its own assessment by testing the witnesses’ evidence against contemporaneous documents and incontrovertible or evidence not in dispute.  If using the above tests a witness has been discredited over one or more matters to which he has given evidence, that should be taken into account in assessing his overall credibility.

8.The Plaintiff testified but called no witness.  Thapa and the Defendants’ safety officer testified on behalf of the Defendants.

9.The Plaintiff is a Nepalese.  He was educated up to middle school level.  He said he could only speak and understand simple English.  He has spent most of his life living and working in Hong Kong.  He attended “tool box” briefing sessions in English.  From the numerous medical notes relating to his consultations, it is obvious that he could communicate well with the doctors in English.  Having seen him in the witness box and having regard to the evidence, I find he is more communicable in English than he represented he was.  He testified in Nepalese and was assisted by a Nepalese/English interpreter.  Basically, he adhered to his account as stated in his witness statement and he denied what was put to him by the counsel for the Defendants.  Apparently, there was no problem with interpretation, particularly given the straight forward nature of his evidence and his denial. His evidence of how the accident occurred is consistent with the account stated by the 1^st Defendant in the notice of accident (Form 2) submitted to the Labour Department as required by the Employees’ Compensation Ordinance and with the Defendants’ defence before it was last amended.  However, for reasons as explained in my analysis of his evidence, I find his evidence about how the accident occurred inherently improbable and his evidence about the extent and seriousness of the injury grossly exaggerated.  I do not find him a credible witness.

10.Thapa is also a Nepalese.  He was also educated up to middle school level.  He could speak and understand simple English.  He is reasonably communicable in English.  He testified in Nepalese and was assisted by a different Nepalese/English interpreter.  His witness statement was taken in English without the assistance of a Nepalese interpreter.  It is concise and imprecise.  It was not taken with the seriousness which a witness statement should be taken.  On the totality of the evidence and the witness testimony in court, it is well beyond doubt that much has been misunderstood, misinterpreted and wrongly assumed by the taker of the witness statement.  The court noted that there were communication problems between him and the court interpreter.  It was also apparent that something was lost in the course of interpretation in court.  This court was handicapped from finding out what was missing.  It was hoped that the ambiguities could be resolved by the safety officer when he testified.  I am satisfied that the problem in interpretation was not caused by incredibility of the witness or incompetence of the interpreter but by the irresponsible way Thapa’s witness statement was taken and the confusion in cross-examination caused by referring to the different parts of the cylinder as the cylinder.  Thapa’s demeanour and hand gestures show that he was trying his best to tell the truth.  When that confusion was later resolved by this court with the safety officer, Thapa’s evidence became credible, intelligible and more inherently probable than the Plaintiff’s.  I find Thapa a responsible and credible witness.

11.Surprisingly, the safety officer who testified was not responsible for investigating the accident.  He arrived at the scene of the accident at about the same time as the marine supervisor, Song, who was responsible for investigating the cause of the accident.  The safety officer kept no records and could not recall who took the photographs of the scene of the accident.  His evidence was just his recollection of what he was told by the Plaintiff at the scene of the accident, when escorting the Plaintiff to the clinic for treatment and at the clinic.  His other evidence was mainly about safety training, how the cylinder should be properly removed.  He was imprecise in his evidence.  He referred to the lid, the cylinder body and the cylinder base as the cylinder.  As a result, it was impossible to understand the Defendants’ case of how the accident had occurred.  It was not until the court assisted by suggesting to him that the cylinder may be made of the three constituent parts to which he agreed that his evidence and, more importantly, Thapa’s evidence could be understood.  The essence in his evidence was what he was told by the Plaintiff as to the cause of the accident.  Though he was not a satisfactory witness, that aspect of his evidence was based on an unusual event in respect of which his collection would unlikely to have faulted.  I find him an honest witness and accept his evidence.

The location of the accident

12.In the statement of claim, the Plaintiff pleaded that the accident took place in the shipyard and not on board a vessel.  In the course of the evidence, he accepted that the accident took place on the vessel, though not at the scene as shown in the photograph at page 246 of the hearing bundle (“Photo-246”).  He said it was at a location some 20 metres to the right of the location shown in Photo-246.

13.According to the safety officer, he went to the scene upon being informed of the accident.  He arrived at the location as shown in Photo-246.  Song arrived more or less at the same time.  Both he and Song took some photographs of the location, but he could not remember whether Photo-246 was taken by him.  The photograph shows the Plaintiff, Thapa and the other two co-workers sitting by the cylinder base.  The safety officer said that upon arrival he took the Plaintiff down the deck to the canteen where he attended to the Plaintiff’s injury.  Then he took the Plaintiff to the clinic.  Photo-246 must have been taken after the accident occurred.  It was probably taken by Song as the sequence of events as described by the safety officer would not have given him the opportunity to take such a photograph.  It was probably taken before the safety officer arrived as the Plaintiff was still seen wearing a glove on his left hand.

14.The Plaintiff said that Photo-246 was taken before the accident.  Mr Sadhwani, counsel for the Plaintiff, suggested it was recovered from some the closed circuit television (“CCTV”).  The safety officer disagreed saying that there was no CCTV at that location as the CCTV was installed for monitoring drilling works and there were no drilling works.  The Plaintiff raised no objection to this photograph during the course of discovery and never sought discovery of the CCTV recording.  It is not open to the Plaintiff to raise such issue at this late stage.  The safety officer’s denial must be treated as conclusive.  Besides, to my experience, and it is probably common knowledge, CCTV could not generate still images of the quality as shown in the photograph. 

15.As for the Plaintiff’s suggestion that Photo-246 was taken before the accident and at a location other than the place where the accident occurred, I think it is not really credible and such evidence made no sense.  The safety officer was informed of the accident and went to the scene. So did Song.  It is beyond imagination that either of them would have taken the photograph some time ago, whether earlier on the same day or some days before and then presented it as having been taken at the time of the accident and coincidentally with the Plaintiff, Thapa and the other two co‑workers in the photograph as well.  Be it the safety officer or Song who took the photograph, they must do so for some purpose.  Why would either of them take a photograph of some place other than the place where the accident occurred?  It would serve no purpose.   If the accident occurred at another location, why would Song or the safety officer not take a photograph of that location.  What could have been their motive in asserting Photo-246 to be a photograph of the scene of accident?  The Plaintiff’s dispute made no sense.

16.The Plaintiff’s evidence was equivocal.  At one stage, he said he did not know when the photograph was taken.  At another stage, he said it must be taken before the accident and later changed his version again under cross-examination saying that it was possibly taken after the accident.  The Plaintiff’s evidence is incredible.  He might have wrongly believed it would improve his case by asserting a different account of how the accident occurred and hence raised the dispute about the photograph.

17.One very telling piece of evidence is that the safety officer also took a photograph of the cylinder base.  This is a contemporaneous conduct.  If he had not been told that was what caused the injury, he would not have taken that photograph.  This strongly corroborates his evidence that he was told by the Plaintiff that the accident occurred while removing the cylinder.  That operation took place in the location as shown in Photo-246. When the Plaintiff’s and the safety officer’s evidence is tested against the photographs taken by Song and the safety officer, it is plainly obvious that the Plaintiff’s evidence is inherently improbable.  Having regard to the totality of the evidence, I find that Photo-246 shows the scene of the accident. This finding also destroyed the Plaintiff’s case that the accident occurred some 20 metres away where he and his two co‑workers were lifting up a steel sheet.

The account of the accident as disclosed by the Plaintiff to the safety officer

18.According to the safety officer, when he arrived at the scene, he saw the Plaintiff, Thapa and the other two co‑workers.  He asked the Plaintiff what had happened.  The Plaintiff told him that “when the crane was pulling the metal cylinder, his hands were still in contact with the metal cylinder.  When the metal cylinder was pulled, it was swinging or moving, probably caused by waves or tide on the vessel.  As a result, his finger was pressed or pinched.  Then he took the Plaintiff downstairs to the canteen and dressed up his wound.  After that he took the Plaintiff to the clinic to see the company’s doctor.  At the clinic, the Plaintiff repeated the same account to Dr Or.  While admitting that the safety officer attended the scene very shortly after the accident occurred and escorted him to the clinic, the Plaintiff disputed the account of the accident allegedly given by him to the safety officer.

19.The Plaintiff returned to the Defendants’ office after expiry of his sick leave on 11 August 2017.  According to the safety officer, he conducted a training session solely for the Plaintiff for evaluating the accident and the Plaintiff repeated the same account of the accident to him.  According to the Plaintiff, the purpose of his return to the office was to hand in his sick leave certificate and he did not understand what was said by the safety officer in English at the meeting.  The Plaintiff’s evidence is disingenuous.  If the purpose of his visit was to hand in his sick leave certificate, there could be no reason why he should find himself in the training session and sign his attendance.  His assertion that he could not understand what the safety officer told him in English could not be true.  On his own evidence, he was able to communicate in simple English.  On the evidence of the safety officer, he had attended job interview which had satisfied the 1^st Defendant that he was communicable in simple English adequate to enable him to understand his instructions given in English and to perform his duty on the work site.  During his employment with the Defendants, the Plaintiff had attended training sessions which were all conducted in simple English.  There was no evidence or suggestion that he could not understand the instructions.  His denial was probably due to the not uncommon subjective belief among the simple minded that admitting the truth may be prejudicial and asserting otherwise would improve his case.  His evidence about this training session revealed he has a propensity of withholding the truth to improve his case.

20.I am mindful of the account of accident stated on the notice of accident (Form 2) submitted by the 1^st Defendant to the Labour Department.  In that form, the 1^st Defendant stated that the accident occurred when the Plaintiff was lifting a heavy metal sheet on the instruction of his supervisor.  That information is consistent with the Plaintiff’s case and corroborates his evidence.  The information was probably given by the Plaintiff’s foreman or supervisor to the Defendants’ administrative staff based on what they were told by the Plaintiff.  That form was submitted by the 1^st Defendant on 5 February 2018, six months after the accident.  It is not contemporaneous.  Having regard to the totality of the evidence, I find that the information in the form which was based on what the Plaintiff told his supervisor was the Plaintiff’s afterthought which was untrue.

21.Despite my criticism that the safety officer did not keep written records of what he observed at the scene, he was not tasked with the duty of investigating how the accident occurred.  He was a witness who was wrongly chosen.  He was not a good witness.  He made assumptions as many lay witnesses do, but he did not conceal those assumptions.  His evidence was imprecise as I have already noted.  However, he impressed me as an honest witness.  Despite his defect as a witness and particularly his lack of precision, I find he could be trusted on broad matters and common sense.  He would not have taken a photograph of the cylinder base if he had not been told by someone that it was related to the accident.  He could not have been so imprecise as to distort the Plaintiff’s conversation in the way he related.  He was not a dishonest witness who could have invented the conversation he had with the Plaintiff if that conversation had never taken place.  I accept his evidence that the Plaintiff had told him that his hand was in contact with the cylinder and was injured as the cylinder swung when it was being lifted by the crane.  This finding also destroyed the Plaintiff’s case that the accident occurred while lifting the steel sheet.

How the accident occurred

22.I am faced with two accounts of how the accident occurred.  According to the Plaintiff, he was injured while lifting a steel sheet and when suddenly his two co-workers let go their hold.  On the face, his account is inherently improbable.  Why would his two co‑workers suddenly and together let go their hold?  Even if they did, the weight of the sheet would also cause the Plaintiff to lose the grip rather than dragging his left hand down to the ground and crushing his fingers.

23.Thapa gave a full account of what happened leading to the accident.  He welded hooks to the cylinder body for the purpose of lifting the cylinder with the crane.  The hoisting cables were secured to the hooks welded to the cylinder body.  Before he had the opportunity to check if the area was cleared and before the rigger on duty had a chance to inspect if the cylinder body was properly secured, the Plaintiff who had asked the workers to stand clear of the cylinder body signalled to the crane operator with his right hand to lift the cylinder body while leaving his left hand in contact with the cylinder body.  At the same time, the other workers also signalled to the crane operator to lift the cylinder body.  As the cylinder body was being lifted up, it swung.  The Plaintiff’s fingers were caught between the outside of the cylinder body and the inside of the cylinder base and were injured.  According to what the Plaintiff told the safety officer, the cylinder body swung because of the waves and tide.  In my view, it was unlikely. The vessel was many times bigger than a cross harbour ferry.  It was berthed to the shipyard.  It was unlikely that the waves and tide would cause such a big vessel to sway.  The movement was most probably caused by the lifting of the cylinder body by the crane.  But whatever the cause does not matter.  The cylinder body swung pinching the Plaintiff’s fingers between the outer surface of the cylinder body and inner surface of the cylinder base.  Thapa’s account was inherently probable.  It is supported by the account as given by the Plaintiff to the safety officer on the day of the accident.  When Thapa’s account is tested against the Plaintiff’s account, the surrounding circumstances and what the Plaintiff told the safety officer, Thapa’s account is the only probable and credible account of how the accident occurred.

Breach of duty of care

24.As is usual in personal injuries actions, there is excessive pleading.  The Plaintiff pleaded negligence, occupier’s liability and breach of statutory duty.  Having identified the cause of the accident, I do not think it necessary to deal with all pleaded breaches of duty.  The disputes in this case are factual.  It is sufficient to deal with the employer’s common law duty to take reasonable care for the safety of his employees, particularly in providing a safe system of work.  This duty is not disputed by the Defendants.  The Defendants’ only defence is contributory negligence.

25.As submitted by Mr Sadhwani, the duties of an employer are trite.  In Cathay Pacific Airways Limited v Wong Sau Lai[1], Bokhary PJ said:

“24.  Of course the duty of care owed by employers to employees at common law is a single duty to take reasonable care for his employees’ safety. This is so even though it is convenient to think of the duty as involving the provision of safe co‑workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and (where called for) adequate training.  As Lord Keith put it in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 at p. 165, ‘[t]he ruling principle is that an employer is bound to take reasonable care for the safety of his [employees], and all other rules or formulas must be taken subject to this principle’.”

26.A safe system of work was explained in Speed v Thomas Swift & Co[2]as:

“I do not venture to suggest a definition of what is meant by system, but it includes, in my opinion, or may include according to circumstances, such matters as the physical lay‑out of the job – the setting of the stage, so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system.”

27.Mr Li argues, quoting Ng Kong v Golden Caterers Ltd[3], that reasonableness and practicality would have to be considered in the connection with each allegation of breach of duty.  It is important to bear in mind that the law does not require perfection.  The measures to be taken to ensure the safety of employees have to be viewed against reasonableness and practicality.

28.Here, the operation was to remove a heavy metal cylinder using a crane by lifting it up from where it was and transporting it to another location.  As Thapa said, the cylinder body was secured to the crane and he had to check if the vicinity was cleared of people and the rigger had to check if the hoisting cables were securely attached to the cylinder body.  When it was safe to lift up the cylinder body, a signalman would give the signal to the crane operator.  Furthermore, according to the safety officer, no one should touch the object while it was being lifted up.  If the object would swing or move, then the workers were required to secure a rope to the cylinder body and to pull the rope so as to guide its movement or to use a wooden stick to do so.  Nobody was required or allowed to come into contact with the object being lifted.  Accepting these to be steps which would be reasonably sufficient to ensure the safety of employees in the performance of that operation, the Defendants were under a duty to maintain such a system of work.

29.On the facts, Thapa was looked upon by the Plaintiff as the supervisor.  Thapa said he was not.  He was only a welder who was responsible for welding hooks to the cylinder body to enable the hoisting cables to be secured to it.  There was a foreman and a rigger on the site.  But it appeared that there was no one in overall charge or supervision.  No guide rope had been secured to the cylinder body to guide its movement if it swung.  In the alternative, nobody was standing by with a wooden stick to do so.  There was no designated signalman to give signal to the crane operator.  According to the safety officer, the crane operator should be able to identify his signalman and would only act on his signal.  There was no such evidence.  Everybody, including the Plaintiff and his co‑workers, signalled, presumably in happy team spirit, to the crane operator to lift up the cylinder body, without checking if the vicinity had been cleared, if the cylinder body had been properly secured, if arrangements had been made for guiding the movement of the cylinder body, and if all hands were off the cylinder body.  In particular, no one checked and ensured that the Plaintiff had been cleared from the area.   There was no supervision and overseeing.  It would not have been unreasonable or impractical to designate a team leader or signalman among these four or five workers on site and delegate to him the duty of signalling to the crane operator when all the safety measures mentioned above had been met.  The absence of proper supervision was a clear breach of duty on the part of the Defendants to provide and maintain a safe system of work so as to ensure their employees are reasonably safe in performing their work.

30.Quoting Wat Kwing Lok v The Kowloon Motor Bus Co (1933) Ltd[4],Mr Li argues that the mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant.  With respect, Mr Li’s reliance on that case is misconceived.  The Plaintiff is not invoking any presumption.  There is positive evidence from the Defendants’ own case of negligence in failure to provide and maintain a safe system of work through want of proper supervision.

Contributory negligence

31.Mr Li referred me to the case of Winter v Cardiff Rural District Council[5]in which Lord Oaksey suggested that while the employer is under the common law duty to act reasonably in all the circumstances, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.  In my view, this principle applies to really simple operations and in which the worker has to make frequent decisions and exercise discretions such that it is inappropriate to rely on the directions of the employer or supervisor.  This is particularly so for workers who are employed by reason of their special skills.  It has no application to a case as the present one where the employees have to work as a team and the employer has given specific safety instructions or provided a safe system of work.

32.On the other hand, just as the employer is under a common law duty of care to ensure his employees are reasonably safe in working for him, the employee is also under a similar duty to take care of his own safety when undertaking activities in the course of his employment with his employer.  The employer may also rely on the skills and abilities of his employee in looking after his own safety.   If an employee is in breach of the duty of care owed to himself, the award he is entitled will be reduced to the extent to which his breach contributed to the injuries he suffered.  The usual matters which will be taken into account in assessing his contributory negligence include:-

(1)  the level of skill and experience the employee has attained; the higher the level, the more he is liable for failing to look after his own safety;

(2)  the extent and adequacy of the training provided by the employer towards avoiding the risk;

(3)  the degree of pressure imposed upon an employee by his employer to maintain or increase output at the expense of caution; the greater the pressure, the less the employee is to blame; and

(4)  the degree of familiarity the employee has with the activity which puts his own safety at risk.

33.The Defendants provided toolbox sessions of about 10 to 15 minutes each on a regular basis on work safety.  The Plaintiff had attended 13 such sessions within the month before the accident.  Those sessions included training on moving heavy objects with crane or other lifting appliances.  He has 20 years’ experience working on construction sites in which such task was frequently practised.  He ought to know it was dangerous to leave his hand on heavy objects which was being lifted. He ought not have signalled to the crane operator to lift the cylinder body when he was still in the vicinity and particularly with his hand still in touch with the cylinder body.  He is contributorily negligent.  Mr Li suggests that the Plaintiff was between one-third to one‑half to blame.  I would attribute negligence to the extent of 30%.

The injuries and treatment

34.The Plaintiff was examined and treated by an orthopaedic specialist, Dr Or shortly after the accident.  Physical examination showed 10% subungual haematoma on his left ring finger at the base of the finger nail and a 5 mm transverse superficial wound at the ulnar dorsum base of nail region.  There was a 5 mm by 5 mm partially ruptured blister at the ulnar aspect mid pulp region of the left middle finger and a 15 mm transverse superficial laceration at the base of the nail level.  X‑ray of the fingers shows a small un‑displaced tuft fracture in the left ring finger, but no fracture in the middle finger.

35.On the following day, the Plaintiff attended Yau Ma Tei Jockey Club General Out Patient Clinic (“YMT Clinic”) and was referred to the Accident and Emergency Department of Queen Elizabeth Hospital (“A&E”) on 10 August 2017.  He was diagnosed as suffering from crush injury of the left middle and ring finger.  He was treated conservatively and discharged with sick leave for 14 days.  Thereafter, he attended the A&E and YMT Clinic occasionally and intermittently asking for sick leave.  Physical examination was unremarkable.

36.He attended Queen Elizabeth Hospital for occupational therapy sessions since 25 August 2017.  At the last session on 27 November 2017, the occupational therapist observed “improved finger joint range, strength and decreased hypersensitive”.  She concluded that “his current physical capacity met the perceived job requirement” and that “he was suggested to return to work for trial”.  But the Plaintiff did not.  He also declined physiotherapy treatment saying that he had to look after his daughter. He attended YMT Clinic repeatedly asking for sick leave.

37.Mr Sadhwani argues that the assessment of the occupational therapist was not put in context of the work of a general labourer and should not be given much weight.  The Plaintiff said that assessment was based on pulling a rope for about 25 seconds and that he was given constant breaks in between pulls.  The pushing was for less than five minutes with breaks between each push and the push was over short distances.  The Plaintiff has not required the occupational therapist to be called for cross‑examination.  He has not adduced expert evidence to attack the credibility of the findings and the appropriateness of the methodology engaged. The Plaintiff is not qualified or in a position to criticise or challenge the methodology.  There is no evidence of the appropriateness or otherwise of the methodology adopted in the assessment and the reliability of the assessment.  The methodology must have made allowance for actual on site working conditions.  The writer of the report is a qualified occupational therapist employed by the Hospital Authority.  In the absence of a proper challenge of her qualification and methodology, I have to assume that the assessment was carried out professionally in accordance with accepted standards.  I accept the occupational therapist’s report on its face value.

38.On 11 March 2018, in response to his request for sick leave, Dr Choy Pui Sang of YMT Clinic advised the Plaintiff to resume duty as a construction site worker.  On 13 March 2018, Dr Alvina Lo of YMT Clinic explained to the Plaintiff that he had no disability.  The latest X ray taken on that day shows the fracture distal phalanx of the left ring finger was healed.  He was last granted sick leave until 12 May 2018.

39.The Plaintiff criticised the reliability of the assessment by the doctors of YMT Clinic in that the consultation lasted only a few minutes.  I think it is common experience that government outpatient clinics are very busy and that waiting time is long but consultation time is short.  Usually the consultation lasts for not more than five minutes.  That does not include the time spent by the doctor studying the patient’s medical history before calling in the patient.  Reading the medical records, it appears that the consulting doctors spent some time taking notes of the Patient’s complaints, including complaints such as coughs and upper respiratory infection (“URI”) symptoms, checking for fever, observing his physical movements.  The Plaintiff was only given analgesic and coughing syrup.  On many occasions, he was not given any drugs at all for he only asked for extensions of sick leave. There is no substance in his complaint about the quality of the services he received from YMT Clinic.

The joint medical report

40.The Plaintiff was jointly examined by his medical expert, Dr David Ip, and the Defendant’s expert, Dr Fu Wai Kee on 26 April 2019.  Physical examination revealed among other things, that the Plaintiff’s fingers shows:

(1)  no scar or swelling in the middle and ring fingers;

(2)  tenderness over the distal interphalangeal area (“DIP”) of the middle and ring fingers;

(3)  decreased sensation of 30% over DIP volar side of middle and ring fingers;

(4)  decreased sensation of 40% over DIP dorsum of middle and ring fingers;

(5)  no muscle wasting;

(6)  full power and range of movement of fingers;

(7)  mild decrease in left hand grip power;

(8)  surgical scar over thigh; no gross deformity over left thigh save for mild swelling over upper thigh; and

(9)  X‑ray of left hand showed no bony lesion or any sign of previous fracture.

Both experts confirmed the diagnosis of contusion injury of left middle and ring finger with un‑displaced fracture at the tuft of the left ring finger.  The fracture was well‑healed.  A year and half lapsed since the accident.  The Plaintiff has reached maximum recovery. 

41.However, there are differences between the two experts.  Dr Ip opined that the Plaintiff’s left hand strength never recovered fully and objective testing showed its hand power was only 60% to 70% that of the right hand.  Dr Fu said that the Plaintiff’s complaint contradicted medical sense.  He suggested that the grip strength depends on the voluntary effort of the Plaintiff.  His handgrip strength 17 months ago on 27 November 2017 before the occupational therapist was already very good.  There was no reason why it decreased during the joint examination.  As there was no muscle wasting, Dr Fu opined that the loss in strength was unlikely to be genuine. As there was no significant nerve injury, the decrease in sensation of the fingers was also exaggerated.  He suggested that the Plaintiff was obviously exaggerating his pain and disability.

42.Dr Ip was guarded on the Plaintiff’s prognosis to return to heavy manual work.  He recommended lighter duty.  But Dr Fu considered the Plaintiff had full recovery and his residual impairment is minimal.  He should be able to resume his original work.

43.The thrust of the Plaintiff’s case about the effect of his injuries is that he could not return to his normal work as a general labourer which requires him to push, pull and carry heavy objects of about 40 kilogrammes.  It is difficult to see how the relatively minor injuries he suffered with his two fingers on his left hand could have such a devastating effect.  According to the occupational therapist report dated 27 November 2017, four months after the accident, the pushing power of his left hand was more than 10% stronger than that of his dominant right hand, while the pulling power of both hands were about the same.  The carrying power of his left hand was about 13% less than that of his right hand.  That could be easily explained by the fact that he is right hand dominant.  There is no reason why the Plaintiff’s conditions could have been worse one and a half years after the assessment by the occupational therapist. The assessment by the occupational therapist was made at a time when the Plaintiff’s focus was on his physical well-being and recovery.  In the absence of objective medical evidence of deterioration, it is probably a closer reflection of the Plaintiff’s condition.  The experts’ assessment one and half years later was made for the purpose of litigation.  There was every motive for the Plaintiff to exaggerate his condition to enhance his claim.  This is particularly so as I have found him to be an exaggerating and incredible witness.  The occupational therapist’s assessment could not have faulted. 

44.Furthermore, I accept Dr Fu’s opinion.  The complaint of the Plaintiff is inconsistent with objective medical evidence.  There is no “pain metre” which can measure the magnitude of pain suffered by a person. The court has to test one’s complaint of pain against objective medical evidence.  Similarly, I agree with Dr Fu that the strength one exhibits depends very much on one’s voluntary effort.  Dr Fu considered the Plaintiff exaggerating.  I agree with that opinion.  In fact, I have found the Plaintiff exaggerating as well in the general issues and that he has a propensity to exaggerate to improve his case.

45.The Plaintiff complained about loss of gripping power.  He said he could not lift weights of more than 4 kilogrammes.  He could not climb ladder while carrying weights and cannot operate hand drill or heavy duty ground drill.  Based on that complaint, Dr Ip opined that his working capacity was reduced.  The finding of the occupational therapist on 27 November 2017 was that the Plaintiff’s left hand grip was 22 kilogrammes, while his right hand grip was 32 kilogrammes.  There is no evidence of the Plaintiff’s grip before the accident.  But one can assume that it was lower than the right hand grip as he is right hand dominant.  Again, when the Plaintiff’s complaint is tested against objective medical evidence, one can place little weight on his complaint.  As pointed out by Dr Fu, there was no muscle wasting and there was no nerve injury.  Dr Fu further opined that the Plaintiff was exaggerating the weakness of his handgrip.  Given his propensity in withholding the truth, I think his complaint of weak handgrip is not genuine.  If the weakness is genuine, it is more likely to be a pre-existing condition. 

46.The Plaintiff complained about pain contending that he could not exert force for more than a few minutes because of the pain and therefore he could no longer work as a general labourer.  He made no complaint to the occupational therapist about pain in November 2017.  His complaint of pain is not only contrary to Dr Fu’s opinion, it is also inconsistent with Dr Ip’s.  Dr Ip never said that the decrease working capacity was due to decreased left hand power or due to pain.  His complaint is not supported by medical evidence.  The fracture healed well.  There was no nerve injury or muscle wasting.  His complaint is consistent with his exaggeration. 

47.Another reason advanced by the Plaintiff as to why he could not resume his original work is that employers would require him to carry loads weighing 25 to 40 kilogrammes.  That weight exceeds the standard stipulated by the Occupational Safety and Health Council.  It is unlikely that many employers would not observe that guideline.  In any event, the 1^st Defendant observed that guideline.  The Plaintiff’s assertion is just another excuse to support his case that he could not return to his original employment.

48.In conclusion, I prefer the opinion of Dr Fu. The Plaintiff was an exaggerating witness.  I do not accept his complaint of weakness and pain are genuine.  I find that he has fully recovered and is fit to resume his original occupation as a general labourer.

Sick leave

49.The Plaintiff was granted 231 days’ sick leave between 10 August 2017 and 12 May 2018.  The leave was not granted continuously but intermittently with breaks in between for as long as two weeks.  Most sick leave was given for just a few days and then renewed by another few days.  For a patient requiring such a long period of sick leave, one would expect the injuries to be really serious and the sick leave to be given for spells of much longer durations and continuously with less and shorter breaks.  The Plaintiff suffered very minor injuries.  He fully recovered by 27 November 2017 and was advised by the occupational therapist to resume work on trial.  He did not.  Instead, he persistently and continuously sought sick leave from YMT Clinic.  Each time, he was only given three days’ sick leave.  On 11 and 13 March 2018, he was repeatedly told by two different doctors that he was fit to resume work and no leave was necessary.  Yet, he continued seeing different doctors asking for sick leave.  For reasons as I have explained, I found the Plaintiff a dishonest and exaggerating witness.  I do not accept his evidence about his condition.  It should be recalled that the Plaintiff refused to attend physiotherapy sessions in November 2017 because he had to look after his daughter.  It should therefore be noted that his inability to resume work was more due to his personal commitment than his disability as a result of the accident.  I am satisfied that he had fully recovered by 27 November 2017.  Thereafter, he kept nagging for leave.  I only allow his sick leave up to and including 27 November 2017. 

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

50.The Plaintiff suffered minor injuries.  He only suffered one un‑displaced tuft fracture in his left ring finger.  There was no fracture in his middle finger.  The other injuries are just minor superficial injuries.  The fracture healed fully.  There were no significant nerve injuries.  His evidence was full of exaggeration.  I do not believe him.

51.In Cheung Kit Ching v Mountains International Company Limited[6], the plaintiff suffered injury to her left middle finger.  She suffered comminuted fracture involving tuft of distal phalanges with mild bony displacement and soft tissue swelling.  She was awarded $100,000.  Her injuries were more serious as her finger involved bony displacement.

52.In Khan Irram v Wai Hing Engineering Company Limited[7], the plaintiff sustained fracture at the distal phalange.  He was awarded $85,000 for PSLA.  His injuries were similar to the Plaintiff’s.

53.In Chan Hung Hang v Fat Kee Marine Repairing & Engineering Co Limited and Another[8], the plaintiff suffered fracture of the tuft of distal phalanx of the right middle finger.  He did not fully recover.  There was mild deviation of the distal interphalangeal joint.  His finger was still painful upon change of weather, exertion and when pressed lightly.  The court awarded him $100,000 for PSLA.  His injuries were more serious than the Plaintiff’s in that he still suffered mild deviation of interphalangeal joint.

54.In Shah Junaid Ali v Yau Lee Galvanizer (Hot-Dip) Company Limited[9], the plaintiff suffered crack fracture of the distal phalanx and was given 9 months’ sick leave.  He was awarded $120,000 for PSLA.  The long sick leave indicates that his injuries were more serious than the Plaintiff’s.

55.In Yam Lai Chau v Yam Hing Kuen[10], the plaintiff suffered crack fracture of the distal phalanx and was given 15 months’ sick leave. He was awarded $120,000 for PSLA.  The long sick leave indicates that his injuries were more serious than the Plaintiff’s.

56.In Yeung Tsz Man v Everbest Port Services Ltd[11], the plaintiff suffered a fracture in his middle phalanx of left ring finger and an open wound over his left ring finger.  He was hospitalised for two days and followed up by the orthopaedic clinic.  He was awarded $150,000 for PSLA.  As he suffered reduced and limited mobility in his finger, this award is not a proper comparable.

57.In Chan Ming Yat v Youh Eng Lai Michael T/A Prime Industrial Co (Hong Kong)[12], the plaintiff suffered (i) an open fracture of the proximal phalanx of the left index finger; (ii) dislocation of proximal interphalangeal joint of the same finger; (iii) rupture ulnar collateral ligament of the interphalangeal joint; and (iv) contused ulnar digital nerve and artery.  He was assessed to have suffered 8-9% impairment of the whole person.  He was awarded $180,000 for PSLA.  This case is obviously not a suitable comparable.

58.Having regard to the injuries suffered by the Plaintiff, I consider Khan Irram an appropriate comparable.   However, I consider the award to be on the high side.  But for the fact that it was a decision nearly 10 years ago, I would have reduced the award.  I award the Plaintiff $85,000 for PSLA.

Pre-trial loss of earnings

59.On my finding, the Plaintiff is only entitled to sick leave from 10 August to 27 November 2017, both dates inclusive, making a total of 111 days.  His average monthly earnings as a general labourer was $30,908.33.  Accordingly, he is entitled to pre‑trial loss of earnings in the sum of $114,360.82[13]. The corresponding loss of mandatory provident fund is $5,550[14].

Post-trial loss of earnings

60.Since on my finding, the Plaintiff can return to his pre‑accident employment, he suffers no loss under this head.

Medical and travel expenses

61.The Defendants accept the pleaded figure of $7,568 under this head, without prejudice to their case on loss of earnings and sick leave.

Loss of earning capacity

62.The Plaintiff claims $100,000 under this head.  The Defendants argue that as the Plaintiff is capable of returning to his pre‑accident employment, no award should be granted.

63.Dr Ip recommended that the Plaintiff should be given lighter duties in view of his injury.  This recommendation is premised on my accepting his opinion of the Plaintiff’s condition, which I do not.  Even if I do, I do not think his injuries have put him in any real disadvantage in the employment market as to justify a claim for loss of earning capacity.  The essence of the Plaintiff’s evidence is that no employer will employ him if he requests for lighter duty.  On his own evidence, lighter duty includes carrying weights of around 25 kilogrammes which he is capable of.  That is also the maximum limit under the guideline set by the Occupational Safety and Health Council and accepted by reasonable employers.  He is not put in any disadvantaged position as result of his injuries.  The evidence shows that he was in fact capable of returning to work soon after the accident if put on lighter duty initially.  He was certainly capable of returning to regular work after 27 November 2017.  He chose not to return to work at all but kept nagging for sick leave.  He suffered no loss of earning capacity.

Summary of quantum

64.In total, the Plaintiff is entitled to the following claims:

(1)	PSLA :	$ 85,000.00
(2)	Pre-trial loss of earnings:	$114,360.82
(3)	Loss of MPF:	$ 5,550.00
(4)	Medical expenses	$ 7,568.00
		___________
		$212,478.82

Discounting 30% for contributory negligence on the part of the Plaintiff, the award should be reduced to $148,735.17.  The Plaintiff has to give credit to the employee’s compensation award of $241,894.19 which he received in DCEC 1559/2018 and which is in excess of the present award.  Accordingly, his claim has to be dismissed.

Conclusion

65.Accordingly, the Plaintiff’s claim is dismissed with costs.  The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

Mr. Kamlesh Sadhwani, instructed by Messrs. John M. Pickavant & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr. Ricky K. Y. Li, instructed by Messrs. Kim & Company, for the 1^st and 2^nd Defendants