Bokhim Dil Kumar v. Dragages Hong Kong Ltd and Another

HCPI 995/2018

[2020] HKCFI 3136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 995 OF 2018

______________

______________

____________________

J U D G M E N T

____________________

A. INTRODUCTION

1.The Plaintiff claims damages for personal injuries that he suffered in the course of his employment at an accident at the tunnel project along Urmston Road in front of Pillar Point, Tuen Mun – New Reclamation Area, Northern Landfall, New Territories on 5 July 2016. At that time, he was employed by the 1^st Defendant as a Senior General Foreman; the 1^st Defendant was a sub-contractor of the 2^nd Defendant; and the 2^nd Defendant was the principal contractor of the site.

2.At the beginning of the trial, the parties agreed that judgment should be entered against the Defendants on the basis that they shall bear 95% of the damages to be awarded. Hence, what remains is quantum.

B.  INJURIES, TREATMENTS AND DISABILITIES

3.The Plaintiff was born on 22 April 1974. He was 42 years old at the time of the accident and is now 46 years old.

4.The Plaintiff claims that he suffered both eye and back injuries as a result of the accident. There is no serious dispute concerning his eye injury.  What is in serious dispute is his alleged back injury. In short, the Plaintiff claims that he suffered serious back injury which made him unable to return to his pre-accident job. In contrast, the Defendants contend that, at most, the Plaintiff suffered mild back injury and he should be able to return to his pre-accident job.

5.I shall begin by describing how the accident happened as claimed by the Plaintiff, which has not been challenged by the Defendants. At about 10am on 5 July 2016, he was engaged in the installation of slurry pipes in the tunnel with his team members. The slurry pipes were installed for the supply of bentonite liquid to the cutter head of the Tunnel Boring Machine. For the bentonite to be supplied to the cutter head of the machine, an electric switch for a guillotine valve needed to be operated to release the bentonite. The guillotine valve to release the bentonite was installed about 227 metres behind the air release valve where he was standing. The electrician responsible for installing a sensor at the guillotine valve told him that the sensor was not working. The sensor regulated the flow of bentonite in the slurry pipe. He sent a colleague to switch on the guillotine valve to release the bentonite. As the bentonite started to flow, the thick fluid pushed the air in the slurry pipe forward. He stood near the air release valve on a metal platform to ensure that the air was fully released before he shut the valve. Upon seeing the bentonite beginning to flow out of the valve, he knew that all the air in the slurry pipe had been expelled. He held the handle of the air release value and was about to shut it when the clamp that connected the slurry pipe which was close to the air release valve suddenly exploded. The bentonite flowing in the slurry pipe with great force suddenly spurted out and struck his face. He was struck on his head by the broken clamp. The force of the bentonite spurting out of the slurry pipe caused him to fall off the metal platform where he was standing onto the lower level platform which was about half a metre in height; and he landed on his back.

6.In his witness statement dated 19 July 2019 and in court, he said that he was rushed to the Tuen Mun Hospital (“TMH”) in an ambulance in a semi-conscious state. When he was examined by the orthopedic experts on 15 June 2018, he told them that he had no loss of consciousness. However, when he was examined by the ophthalmologic experts 5 days later on 20 June 2018, he told them that he was choked, stunned by the accident and passed out, and he found himself being taken on a trolley into a hospital when he regained his consciousness. According to the medical notes of TMH, upon admission, he was alert and afebrile.  The record of the Accident & Emergency Department shows that his GCS score was 14/15. The inconsistent accounts given by the Plaintiff as to whether he had lost consciousness cast a doubt on his overall credibility.

7.Upon examination after admission to hospital, the visual acuity of his right eye was 0.6 pin-hole 0.7 and that of his left eye 0.7. PH of both eyes were 8-9. There was a left upper lid laceration and periorbital bruises. Slit lamp examination showed left pupil sphincter tear, bilateral conjunctival lacerations with adherent chemicals and microscopic hyphaema. CT scan of orbit showed no intraocular foreign body or orbital wall fracture. Both eyes were irrigated with normal saline solution. Emergency operation was performed on the same day with bilateral debridement of necrotic conjunctival tissue, and repair of bilateral conjunctival lacerations and left upper lid lacerations. Intraopertive fundal exam showed bilateral Berlin’s edema, with no retinal break or scleral rupture seen. After the operation, he was given a course of oral antibiotics topical antibiotics and steroids. He was discharged 3 days later on 8 July 2016. At the time of discharge, he suffered blurred vision in both eyes.

8.After discharge on 8 July 2016, he attended the Department of Ophthalmology of TMH for follow up consultations, and was given sick leave by the ophthalmologists up to 8 October 2016 (for about 3 months), and on 29 December 2016. At the follow ups, it was found that his conjunctival lacerations had healed; there was a right small central scar and left inferior conjunctival scar and symblepharon. The best corrected visual acuity (on 29 September 2016) with trial lens was right eye 6/7.5 and left eye 6/9.

9.I turn to his alleged back injury. He stated in his witness statement that he suffered constant back pain immediately after the accident. However, he admitted in court that, as confirmed by the medical records of TMH, while he was in hospital, he did not complain to the doctors about his back pain at all. He explained that, at that time, he was preoccupied by his eye injury. I take the view that the back pain that he suffered at that time, if any, was likely to be very mild and intermittent.

10.In fact, the Plaintiff did not seek any medical treatment in relation to his back until 26 September 2016, which about 2.5 months after the accident.  He consulted Dr David Ip (“Dr Ip”) of Wellness Pain Centre on 27 September 2016 with decreased SLR on the left and severe back pain. Physical examination revealed active inflammation of the back soft tissues as well as left sciatic tension signs. MRI on 30 September 2016 found a small L4/5 disc herniation on the left side with narrowing of the left foramen. There was a small herniation of L5/S1 on the left side, which was in contact with the left S1 nerve root, but the L5/S1 foramina were not narrowed. The normal lordosis of the lumbar spine was straightened probably due to muscle spasm. No fracture or subluxation was seen. He consulted Dr Ip 4-5 times in total. He was treated with low-level laser therapy, TENS, and ultrasound treatment with some decrease in pain level.

11.He was then admitted to TMH on 4 October 2016 due to complaint of persistent back pain which radiated down to his left lateral thigh after the accident. Physical examination showed mild paraspinal muscle spasm and pain at L4 upon forward flexion; and there was tenderness over L4 and decreased sensation over left S1. The clinical impression was left sciatica. He was discharged the next day on 5 October 2016.

12.He was referred to the Physiotherapy Department of TMH. He attended 21 sessions of out-patient physiotherapy from 14 October 2016 to 15 February 2017. At the initial assessment, he complained of dull ache pain radiating to his left buttock to his sole; his walking tolerance was 25 minutes with pain; his standing and sitting tolerance were 20 minutes and 30 minutes respectively with pain. At the final assessment on 15 February 2017, he reported 60% improvement. He was discharged due to static progress.

13.In the physiotherapy progress notes, from the attendance on 6 December 2016, the physiotherapists noted repeatedly that Waddell signs were positive (on 9 December 2016, 13 December 2016, 21 December 2016, 3 January 2017, 10 January 2017, 17 January 2017, 24 January 2017, 1 February 2017, 8 February 2017, 15 February 2017). In the progress notes since 10 January 2017, the physiotherapists remarked that, on 2 December 2016, initial assessment of Waddell signs was positive, indicating that there might exist non-organic cause of back pain.

14.He was also referred to the Occupational Therapy Department of TMH for work rehabilitation program. He received occupational therapy from 7 February 2017 to 29 May 2017, a total of 15 sessions. In the initial assessment, he presented with moderate limitation in active range of motion over trunk; the overall manual muscle testing over his left lower limb was graded 4/5 while right lower limb was 5/5; he reported walking tolerance of 25 minutes with stick support and standing tolerance of 25 minutes. As to his pre-accident job, the critical physical demands included constant walking and standing; occasional lifting, carrying and climbing. In the initial work assessment, he was ranked not match with job demand for inadequate work capacity. In the last assessment, he presented with mild limitation in active range of motion over trunk; his overall manual muscle testing over his left lower limb was graded 4+/5 and right lower limb was 5/5; he reported walking tolerance of 30 minutes with stick support and standing tolerance of 25 minutes. He demonstrated maximum carrying capacity of 27.5lbs and tolerated constant carrying of 20lbs for 10 minutes. The maximum lifting capacity was 10lbs from knuckle to shoulder. He tolerated repetitive lifting of 5 lbs for 10 minutes with complaint of back pain. He was still ranked as not match with job demand. Progress was static and he was therefore discharged from the work rehabilitation program. He was told that it was likely that he would have to change job; and he said he would consider later.

15.In short, by the end of May 2017, both physiotherapy and occupational therapy had stopped. In the meantime, since 2 November 2016, he also attended follow up consultations at the Department of Orthopaedics & Traumatology of TMH. He was given continuous sick leave from 2 November 2016 to 14 July 2017. When he attended the follow up on 14 July 2017, the doctor recorded that, in view of his static progress in physiotherapy and occupational therapy and no active treatments being given, no further sick leave would be given and the Plaintiff understood. Medication was prescribed and a follow up on 13 November 2017 was scheduled.

16.However, on the very next day i.e. 15 July 2017, he consulted Dr Ip, and Dr Ip gave him further sick leave from 15 July 2017 to 13 August 2017. He consulted Dr Ip again upon expiry of the sick leave and was given further sick leave for another month. The same pattern went on until the last sick leave granted on 13 November 2017 for the period up to 13 December 2017.  He consulted Dr Ip for the last time on 13 November 2017 with residual pain, and back stiffness, forward bending could not even reach his knees, poor standing & sitting tolerance, and he could only at most carry 15 pounds of weight.

17.When he was asked why he switched to consult Dr Ip again and whether it was because the doctor at TMH declined to give him more sick leave, he explained that he found the treatments given by TMH unhelpful. However, he has not given any evidence as to what more helpful treatments had been given by Dr Ip. If fact, he continued to attend the follow up consultations arranged by TMH.  I believe he went to consult Dr Ip on 15 July 2017 on a monthly basis till 13 November 2017 for the main, if not the only, purpose of obtaining further sick leave.

18.He said in court that he still needs to attend follow up consultations in respect of his eye and back injury at TMH once every few months. He also said that the orthopaedists at TMH prescribed painkillers to him continuously. I am somewhat surprised when he asserted that he has been taking the painkiller daily.

19.The Joint Orthopaedic Report by Dr Wong Chin Hong (“Dr Wong”) and Dr Ko Put Shui Peter (“Dr Ko”) dated 31 July 2018 (with Dr Wong’s Supplemental comments dated 15 April 2020); and the Joint Ophthalmology Report by Dr Tsui Chung Wan (“Dr Tsui”) and Dr Cheung Sek Hong (“Dr Cheung”) dated 13 July 2018 are admitted as evidence without calling them to give oral evidence.

20.Dr Tsui and Dr Cheung examined him on 20 June 2018. He complained of blurred vision in both eyes with haziness, pain in eyes shooting to his head, photophobia with worsening of eye pain and tearing especially under sunlight.  Examination of his best corrected visual acuity showed a 9% impairment of whole visual system. However, he should have normal or near-normal ability to perform activities of daily living. The photophobia was mainly caused by both corneal scars and dryness due to tear deficiency as a result of the chemical injury. Use of artificial tear supplement, together with lubricating ointment would be helpful to alleviate the symptoms. Wearing of sunglasses would also be helpful under bright sunlight. Ophthalmologically, there was no evidence of exaggeration or malingering. He would be able to resume his previous job.

21.Dr Wong and Dr Ko examined him on 15 June 2018. He told them that, before the accident, he worked from 8am to 8pm 6 days a week; 75% of his time was spent on supervising his co-workers whereas the remaining 25% time was spent on manual work including lifting heavy weight up to 40kg; he also had to climb and work on scaffolds, platforms and ladders at height up to 14 metres. He complained of intermittent low back pain more on the left side, which would be aggravated by walking half an hour, taking shower, toileting, bending down to put on shoes, walking up and down stairs, twisting, turning in bed, and getting up from bed. He said he took painkillers 4-5 times per week on a need-to basis. He stated that he has no significant problem in his activities of daily life or using public transport, but he needs a stick when going out since September 2017 because of his eye problem and low back pain. Upon physical examination, he walked with a slow gait without walking aid; his sitting tolerance was 50 minutes; he got up from chair normally without support; heel standing, heel walking, tip-toe standing, tip-toe walking were all normal; single leg standing was normal; he claimed squatting and half squatting limited by low back pain; he complained of low back pain at end range of motion of the back and during the straight leg raising test; tension sign was negative on both lower limbs; motor power of both lower limbs was 5/5; left lower limb generalized decreased in touch sensation 50% anterior from the groin downward, posterior from the buttock downward; on palpation of the back, there was no muscle spasm, tenderness in left paralumbar area and left upper buttock region; mild tenderness in the lower midline at the lumbosacral junction; and the lower limb reflexes were normal. X-ray taken on 15 June 2018 showed slight decrease in lumbar lordosis; slight decreased L1/2 and L2/3 disc spaces and mild degenerative changes.

22.Dr Ko opined that it was probable that he suffered low back contusion or sprain injury. Dr Wong agreed that he sustained soft tissues contusion/sprain injury to his lower back. On causation, Dr Ko pointed out that there were obvious features of pre-existing L5/S1 degenerative disc disease with features of desiccation on L5/S1; but there was no obvious or significant compression on the left S1 nerve root and it was only in contact with the left S1 nerve. Dr Wong commented that it was plausible that the mechanism of falling onto his back after he was impacted by the bentonite on his eyes and face could have caused contusion/sprain injury to his lower back. And he mainly complained of intermittent low back pain after prolonged walking and on exertion, which was consistent with the MRI findings of discs herniation. The accident could have precipitated or aggravated the L4/5 and L5/S1 disc herniation; and his persistent back symptoms had been triggered.

23.The Defendants challenge whether his back problem was indeed caused by the accident. As mentioned, he did not complain any back pain to the doctors while he was in hospital, and he only consulted Dr Ip for back pain for the first time about 2.5 months after the accident. However, according to the records of TMH, once he started to complain about back problem on 4 October 2016, he said consistently that he suffered a back injury as a result of the accident. There is no suggestion or evidence that, between the date of the accident and the date when he first consulted Dr Ip for low back pain, he had encountered any incident which could have caused his back injury. I accept that, immediately after the accident, he was preoccupied by his eye injury; his eyes were very painful and he could not see. As Dr Ko observed, it was likely that his low back pain was not severe which could account for the absence of any record or documentation about any low back injury or pain. When his eye injury recovered gradually, the back symptoms became more apparent and prominent. In the circumstances, on a balance of probabilities, I am satisfied that his back injury was caused by the accident.

24.Dr Ko opined that his condition would have reached stable and static condition, and maximal medical improvement, by about 6-8 months after the accident i.e. around March 2017. Dr Wong opined that he should be considered to have achieved maximal medical improvement at the joint examination.

25.Both Dr Ko and Dr Wong opined that the Plaintiff should be able to manage his activities of daily living and self-care activities without significant problem; and he would be able to participate in sport activities on recreational basis.

26.What is in serious dispute is the extent or severity of his back problems. In this respect, it is telling that, during the physical examination by the orthopaedic experts, on testing the Waddell’s simulation signs, shoulder compression, vertex compression, truncal rotation and shoulder elevation were all positive. I shall quote Dr Ko’s relevant opinions in verbatim:

“At the time of this joint assessment, which is about 2 years after this occurrence of the alleged accident, Mr. Bokhim complains of intermittent left low back pain. Although he had been recorded and reported to have left sciatic type of symptoms, but at this joint assessment, he has no more complaint about his left lower limb. Physical examination shows certain degree of inorganic elements. His straight leg raising on the right 40 degrees and left 20 degrees with complaint of low back pain but no symptoms or signs suggestive of sciatica with negative tension sign. He has normal power in both lower limbs. The only positive findings is his reported tenderness on palpation in the low back region. For his claimed generalized decreased 50% in touch sensation in his whole left lower limb circumferentially anterior from the groin downward and posterior from the buttock downward, this had not been previously reported by the previous treating healthcare professionals including physiotherapist, occupational therapist and orthopaedic specialist. This also falls into no anatomic or dermatomal distribution and has no corresponding findings from the MRI features. In fact, from the inpatient notes 4 October 2016, he had intact sensation in both lower limbs. In the outpatient follow-up, it was reported: 8 December 2016, no lower limb weakness/numbness, light touch sensation preserved. 9 February 2017, straight leg raising 80 and 80 degrees, tension sign negative. 5 Jan 2017, intact sensation. No lower limb weakness/numbness. 23 March 2017, no lower limb weakness. 1 June 2017, sensation normal, lower limb power full. Non-specific numbness over bilateral lower limb. 20 December 2017, lower limb power full, sensation intact. 12 July 2017, lower limb power full, sensation intact.

In summary, findings at this joint assessment and also those from previous documents and reports by previous healthcare professionals, apart from the subjective complaints of radiating pain to the left lower limb, there was no feature of definite or genuine neurological deficits. The left lower limb numbness were sporadic, intermittently present and quite non-specific, which was obviously not constantly present in the previous assessment findings and findings from the previous healthcare professionals. …this inconsistent features as reported at the regular follow-up by the previous treating healthcare professionals was consistent with soft tissue contusion injury to the low back region with some type of referred pain (referred muscle pain) to the left lower limb, but no definite sensory or motor deficit. The small herniation of the disc in the L5/S1 as shown in the MRI, which was only in contact with the left S1 nerve root, could not give rise to his non-specific numbness and decreased touch sensation in his left whole lower limb. As elaborated in the above section, he had intact sensation and normal motor power in both lower limbs in multiple assessments at different follow-up sessions with O & T.”

27.Although Dr Ko did not say expressly that the Plaintiff was malingering or had exaggerated his symptoms, his message is clear. Most, if not all of the Plaintiff’s subjective complaints, could not be explained or supported by objective medical evidence. He displayed non-organic signs. Moreover, he raised new complaints which were never mentioned before, and could not be explained medically.

28.As mentioned above, the physiotherapists of TMH also recorded that the Plaintiff tested positive on the Waddell signs and there might be non-organic cause of back pain. There is no suggestion, let alone evidence, that his subjective complaints could be contributed by any psychological or psychiatric reason. In Wong Yun Chiu v Union Printing Co Ltd, HCPI 282/2009 (29 July 2011, unreported), Bharwaney J held at §20:

“…A test performed to detect Waddell’s signs, used to detect malingering in patients with back pain, elicited 3 out of 5 positive signs. 3 out of 5 positive signs are considered to be clinically significant and, absent a psychological component, are suggestive of symptom magnification.”

29.It is most surprising and disappointing that Dr Wong did not comment on the problematic features highlighted by Dr Ko, which should be apparent from the medical records available to him and the joint examination itself. The only reasonable inference is that he felt unable to disagree expressly with the said opinions of Dr Ko. Moreover, it is noteworthy that he admitted that the new symptom complained by the Plaintiff was inexplicable:

“As there was no significant nerve root compression, the cause of his left lower limb numbness is more subjective and unclear.”

30.I wish to repeat what Bharwaney J remarked in Zahid  Anwar  v  Graceful Sound Ltd and others, HCPI410/2008 & HCPI370/2009 (31 August 2012, unreported), §25:

“…Experts are instructed to assist the court by offering their expert opinion on areas which are within their specialist experience and which are not matters of common knowledge. That expert opinion has to be based on the objective evidence available to and ascertainable by them. The paramount duty of the expert is to the court, not to his client who has engaged him and by whom he is to be paid. There is no doctor-patient relationship between him and his client. He is not a mouthpiece for his client but must conduct a forensic examination and critically weigh the objective facts before offering his opinion to the court. In the case of orthopaedic experts, this means that recognized non-invasive tests must be carried out to rule out exaggerated assertions and malingering.”

Whether a Plaintiff is malingering and has exaggerated his symptoms will be a question of fact for the court. It may not be appropriate for a medical practitioner to express any conclusion on this factual question. However, medical experts instructed to examine a Plaintiff in a personal injury litigation should examine the subjective complaints made by the Plaintiff critically, explain whether and to what extent such subjective complaints can be supported by objective medical evidence and reasons, and insofar that they cannot be so supported, what could be the possible, or are likely to be the probable, reasons.

31.It is troubling that Dr Wong was found to have adopted an over-simplistic approach regarding the genuineness of a Plaintiff’s complaints in a number of cases (see Rai Gehendra Raj v Yick Hing Construction Co Ltd, HCPI48/2012 (31 August 2017, unreported), §77). Apparently, he adopted the same unsatisfactory approach in this case. Nonetheless, I decide whether to accept or reject his opinions based on all the evidence in this case rather than criticisms made by judges against him in other cases.

32.Apart from Dr Ko’s said opinions and the comments made by the physiotherapists, there are other features suggesting that the Plaintiff is not a credible and reliable witness: he gave inconsistent accounts as to whether he had lost consciousness after the accident; and he switched to consult Dr Ip for the main purpose of obtaining further sick leave after the orthopaedist at TMH declined to give him further sick leave. Having considered all relevant evidence, I find that his subjective complaints about his back are unreliable. I do not accept that he has been suffering back problems which were and are as serious as he alleged. It is difficult, if not impossible, to ascertain the exact degree of his back problems in view of such finding. Nevertheless, having regard to the objective evidence, I am prepared to hold that he suffered mild back problems due to a contusion/sprain injury (which may have aggravated his pre-existing asymptomatic degenerative changes in the back); however, he had recovered largely so that, at most, he might be suffering from some mild and intermittent back pain.

33.With such findings, I turn to the Plaintiff’s ability to return to his previous job. Dr Ko opined that his physical and orthopaedic condition should allow him to resume his pre-accident job with only minimal impairment of his work efficiency and effectiveness. Dr Wong’s opinion is equivocal:

“In view of the discs lesions noted in his lumbar MRI, Mr Mokhim’s low back symptoms and signs would not resolve completely. He is at risk of further worsening of his low back condition should he returns to his previous construction work which involves climbing of scaffolds and manual lifting of up to 40kg by himself. He would be more suited for alternative jobs of lighter nature such as car-park attendant or office assistant. It is noted that he has appropriately switched to working as a security watchman.”

In effect, Dr Wong merely opined that it was preferable for the Plaintiff to change to another job in view of the risk of worsening of his low back conditions. Dr Wong did not state affirmatively that he was physically incapable of returning to his previous job. I accept that, if there is a real and substantial risk that his back problems may deteriorate, it may not be reasonable to require him to take such risk by returning to his per-accident job. However, Dr Wong had not assessed the degree of such risk. Further, it appears that his opinion in this respect was based on his acceptance of the Plaintiff’s subjective complaints, which he had not examined critically and which I have found to be unreliable. I have not overlooked the opinion of the occupational therapists of TMH. However, such opinion cannot be conclusive as, apparently, it was based on the performance of the Plaintiff during the assessment and an assumption that he had tried his best (cf Rai Surya Prakash v Pacific Crown Security [2020] HKCFI 917 at §53). All in all, I prefer the opinion of Dr Ko, and find that the Plaintiff should be able to return to his previous job.

C. GENERAL DAMAGES FOR PSLA

34.In their closing submissions, the parties agreed that general damages for PSLA should be $550,000. In David John Slater v Commissioner of Police, HCPI 646/2012 (7 July 2017, unreported), Bharwaney J held at §22 that damages for PSLA in personal injury cases falling within the Serious Injury category would start at $530,000. I accept that the sum agreed is fair and reasonable.

D. LOSS OF EARNINGS AND MPF BENEFITS

35.At the time of the accident, the Plaintiff claims that he made on average a total sum of $46,371.16 a month.

36.As stated above, he was on continuous sick leave from 5 July 2016 to 13 December 2017. He started to work as a security guard for China Overseas Property at the Western Food Market from 1 December 2017 at the monthly salary of $8,800, which was increased to $9,400 from 1 May 2019. He said in court that his monthly salary had been increased further to $13,000 in June 2020. He worked from 3:30pm to 11:30pm. He sat at the security post near the gate of the market registering the particulars of people and vehicles coming in and going out. With effect from 25 July 2018, the 1^st Defendant terminated his employment contract by one month’s salary in lieu of notice.

37.Dr Ko opined that sick leave up to 6-8 months should have been adequate and acceptable. On the other hand, Dr Wong opined that sick leave granted by the treating doctors up to 13 December 2017 was acceptable and reasonable.  In Tam Fu Yip Fip v Sincere Engineering & Trading Ltd [2008] 5 HKLRD 210 at 215, §18, Le Pichon JA held that 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; the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the Plaintiff. That said, generally speaking, the court should respect the professional judgment of the treating doctors who, presumably, must have examined the Plaintiff and considered all relevant circumstances (and not just the Plaintiff’s subjective complaints) before deciding whether to grant sick leave, and if so, for how long. In this case, the orthopaedists at TMH had clearly exercised their independent judgments in this respect, which explained why they declined to give the Plaintiff further sick leave on 14 July 2017. Further, he only completed occupational therapy not too long before that on 29 May 2017.  I find the sick leave granted up to 14 July 2017 to be reasonable and acceptable. I cannot say the same in respect of the sick leave granted by Dr Ip between 15 July 2017 and 13 December 2017. Nevertheless, the court would usually give a plaintiff a reasonable time to seek a new job or return to his old job after the expiry of the sick leave. The Plaintiff returned to work on 1 December 2017, which was only about 4.5 months after the sick leave granted by the orthopaedists at TMH had expired. In the circumstances, I am prepared to award him complete loss of earnings from the date of the accident to 30 November 2017, say 16.83 months:

$46,371.16 X 16.83 = $780,426.62.

38.The orthopaedic experts examined the Plaintiff on 15 June 2018. For reasons explained above, I find that, by the latest, by the time of the joint examination, he should be able to return to his previous job. Strictly speaking, Dr Ko simply opined that he should be able to resume his previous job in view of his condition as at the joint examination, but he did not say that he could have resumed his previous job earlier (and if so, when). I also take the view that, after suffering injuries and a rather long sick leave, it would be reasonable for a Plaintiff to resume working by taking up a lighter job first to regain confidence gradually (cf Tamang Tikaram v Tong Kee Co Ltd and others, HCPI19/2013 (1 April 2015, unreported), §78). Hence, for the period between 1 December 2017 and 15 June 2018, say 6.5 months, I am prepared to award him a partial loss of earnings:

$(46,371.16 – 8,800) X 6.5 = $244,212.54

39.For reasons that I need not repeat, I will not award him any further loss of earnings. Accordingly, his total loss of earnings including loss of MPF benefits calculated at 10% of his loss of earnings should be:

$(780,426.62 + 244,212.54) X 1.1 = $1,127,103.08

E.    FUTURE LOSS OF EARNINGS AND LOSS OF MPF BENEFITS

40.For the above reasons, the Plaintiff is not entitled to any future loss of earnings and loss of MPF benefits.

F.    LOSS OF EARNING CAPACITY

41.The Plaintiff claims $100,000 as loss of earning capacity.

42.The purpose of an award under this head is to compensate a Plaintiff for the disadvantage that he may suffer as a result of the injuries caused by the accident (Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D). I find the following observations made by Bharwaney J in Gurung Bhakta Bahadur v Green Valley Landfill Ltd, HCPI333/2009 (28 January 2011, unreported), §48, equally applicable to this case:

“…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 had 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 reasonable foreseeable that he is at risk of spraining or injuring his back some time in the future at which point in time he cumulative effect of the present and the future injury may to impact adversely on his future earning capacity…”

In fact, as mentioned, Dr Wong had alluded to such risk. Though I do not agree that his opinion in this respect supports that the Plaintiff cannot return to his previous job as already explained, I accept that such opinion supports an award for loss of earning capacity.

43.The Defendants accepted that, if I see fit to make an award, $100,000 would be a reasonable sum. This is what I shall award.

G.   OTHER SPECIAL DAMAGES

44.The parties agreed that $25,630 should be awarded as special damages.

H.   SUMMARY

45.Therefore, the total amount of damages shall, in principle, be as follows:

Head of damages	Amount
General damages for PSLA	$550,000
Loss of earnings and MPF benefits	$1,127,103.08
Loss of earning capacity	$100,000
Other special damages	$25,630
TOTAL	$1,802,733.08

46.As it has been agreed that the Defendants shall be liable for 95% of the damages to be awarded, the said sum should be reduced by 5%:

$1,802,733.08 X 95% = $1,712,596.43

47.The Plaintiff must give credit to $799,275.12 being compensation paid under the Employees Compensation Ordinance. Hence, the net sum will become:

$(1,712,596.43 – 799,275.13) = $913,321.30

48.Interest on general damages should be awarded at 2% per annum from the date of writ whereas interest on special damages should be awarded at half the judgment rate from the date of accident up to the date of the employees’ compensation payment, and after that at the same rate on the same items but less the amount of the employees’ compensation paid.

I.   CONCLUSION

49.For the above reasons, I order that the Defendants shall pay to the Plaintiff the sum of $913,321.30 with pre-judgment interests as set out in paragraph 48 above; interest shall run at the judgment rate from now on until payment.

50.I also make a costs order nisi that the Defendants shall pay to the Plaintiff the costs of this action (including all costs reserved) to be taxed on the High Court scale if not agreed, and that the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. Any party who intends to apply to vary the costs order nisi shall file a written submission not exceeding 5 pages within 14 days; and the other party opposing such application shall file a written submission not exceeding 5 pages within 14 days thereafter. I shall then determine the application on paper.

Mr Neal Clough instructed by Massie & Clement Solicitors, for the Plaintiff

Mr Yuan Shan Cao, instructed by Norton Rose Fulbright Hong Kong, for the 1^st and 2^nd Defendant