Lam Hon Keung v. Hong Kong Aero Engine Services Ltd

DCPI 2929/2019

[2021] HKDC 212

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2929 OF 2019

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JUDGMENT

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1.This is a personal injury action commenced in the Court of First Instance in 2016 as HCPI 585/2016 and subsequently transferred to the District Court.

2.Both liability and quantum were contested by the defendant.  On the first day of trial, the defendant through its counsel Mr Ho conceded liability.  What remains outstanding to be resolved is the question of quantum.

3.Save that the amount of the average monthly income of the plaintiff at the time of the accident was HK$24,325.87 was admitted, all other matters pertaining to the assessment of quantum are disputed.

A.      BACKGROUND, THE ACCIDENT, INJURIES AND TREATMENT

4.The defendant is a renowned aero engine repairs and servicing provider operating its plant in Tseung Kwan O Industrial Estate.

5.The plaintiff was born in November 1971.  He was educated up to Form 5. Since 1990, he has been employed by the defendant.  He became an aero engine mechanic occupying the position of Senior Tradesman in 1993.  At the time of the accident, he was aged 41 and married with a son aged about 10 and a baby daughter.

6.At the time of the accident, the plaintiff was assigned to operate the 80” Waterjet Facility (“the Waterjet Machine”) which was used to remove coatings from jet engine components.  The Waterjet Machine included an outer acoustical enclosure, measuring about 2.5 x 3 x 2.5 meters.  The acoustical enclosure would contain the waterjet process and attenuated the noise generated.

7.At about 5:45 pm on 6 June 2013, while the plaintiff was closing the doors of the Waterjet Machine, a rectangular shape solid metal piece became detached and fell from a height of about 2.5 meters and struck the plaintiff’s head.  The metal piece was an interlocking device forming part of the sensor mechanism affixed by screws to the top of the right metal door of the Waterjet Machine.  It measured 7 x 4 x 0.75 inches and weighed 1.245 kg.  The plaintiff thereby sustained injuries.

8.The plaintiff was then taken by ambulance to the Accident and Emergency Department (“A&E”) of Tseung Kwan O Hospital (“TKOH”) for treatment.  He complained of nausea, wound pain and wound bleeding.  CT scan of the brain showed no signs of intracranial bleeding or bone fracture.  A 4 cm linear laceration wound was noted on his forehead, for which he received 6 stitches. Anti-inflammatory and pain medication was prescribed to him.  He was discharged late that night.  Sick leave was given to him until 15 June 2013.

9.His wound was then washed and dressed in a medical clinic in Tuen Mun, near where he lived, every two days on 4 occasions.

10.The plaintiff however continued to have headache and dizziness.  Early morning on 13 June 2013, he went to A&E of Tuen Mun Hospital (“TMH”) and was attended to at 7:46 am.  He was conservatively treated and sick leave up to and including 17 June 2013 was given to him.

11.After the sick leave has expired and on 18 June 2013, the plaintiff resumed work.  However, he continued to have headache and dizziness while working, at times he needed to take rests for about half an hour up to 6 to 7 times a day.

12.The plaintiff then applied to, and was arranged by, the defendant to attend Dr Siu Hon Pong of the Haeco Medical Clinic on 5 July 2013.  Dr Siu gave him sick leave for 5 and 6 July 2013, which was respectively Friday and Saturday, and the plaintiff was then arranged to see Dr Edmund Ho also of Haeco Medical Clinic on Monday 8 July 2013.  Dr Ho then referred the plaintiff to consult Dr Chung Chun Pong, a specialist in neurology, the next day.

13.From 9 July 2013 to 21 November 2013, the plaintiff was attended by Dr Chung Chun Pong 12 times.  The plaintiff by then complained not only of persistent headache and dizziness, but also anxiety and insomnia.  Upon Dr Chung’s referral and on 16 July 2013, the plaintiff had MRI of his cervical spine and brain and MRA of carotid bifurcation and cerebral arteries in Hong Kong Baptist Hospital.  These scans did not show any abnormality save they revealed multiple non-specific T2 hyperintensities over bilateral frontal subcortical white matter and several FLAIR hyperintense signals over left superior frontal gyrus.  Dr Chung diagnosed post-concussion syndrome, prescribed Desvenlafaxine 50 mg daily, Xanax 0.25 mg bd and Clonazepam 0.25 mg nocte prn and referred the plaintiff to the neurosurgeons and psychiatrists.

14.Upon referral by Dr Chung and since 26 November 2013, the plaintiff has been attending Tuen Mun Mental Health Clinic (“TMMHC”), a psychiatric specialist out-patient clinic of Castle Peak Hospital (“CPH”).  He attended TMMHC 44 times until 23 May 2017.

15.Also upon Dr Chung’s referral, the plaintiff attended the Department of Neurology of TMH on 17 December 2013.  Examination did not show any focal neurological deficits, but the plaintiff claimed to have diplopia upon leftward gaze, and the diplopia was present during monocular vision.  He was then referred to ophthalmologist for further assessment.

16.He then attended the Tuen Mun Eye Centre on 7 January 2014.  Examination did not show any abnormality of the eyes and he was followed up there until June 2015.

17.In its report dated 16 December 2015, CPH reported that the plaintiff was diagnosed to suffer from post-concussion syndrome, that he was prescribed with antidepressant and anxiolytic medications, but his symptoms of headache, dizziness, vertigo, insomnia and difficulty in performing tasks remained persistent, and that he developed secondary depression since January 2014 precipitated by lack of progress and loss of income.  It was further reported there that the prognosis of his post-concussion syndrome is poor.

18.On 6 November 2014 and after an unhappy incident with his wife, the plaintiff attempted to commit suicide by an overdose of sedative plus beer at the seaside of Tuen Mun.  He was found by the police and was sent to TMH where he was hospitalized for one night[1].

19.The plaintiff was referred by CPH to the department of clinical psychology in TMMHC for psychological treatment.  Since March 2015, he received treatment and was followed up there at 2 to 3 months’ interval.

20.The plaintiff was given sick leave by the treating doctors until 6 July 2015.  By letter dated 30 June 2015[2], CPH certified the plaintiff to be mentally fit to resume work but light duty was recommended.  By letters dated 4 August 2015[3] and 8 December 2015[4], CPH certified that the plaintiff was mentally fit for resumption of administrative work but his work ability was not likely to handle non-clerical tasks.

21.Since August 2015, the plaintiff resumed working with the defendant but for administrative work only.  In February to June 2018 and with his agreement, the plaintiff was arranged to resume non-clerical work by working in the paint room.  However, there were several occasions when he felt dizzy and vomited, and on one occasion he had to attend A&E of TKOH for treatment.

22.By letter dated15 May 2018^[5], CPH again certified that the plaintiff was mentally fit for resumption of administrative work only.  Since June 2018 to date, the plaintiff has been assigned clerical work only.

B.      THE PLAINTIFF’S CURRENT SYMPTOMS AND DISABILITIES AND THE OPINION OF THE EXPERT

23.The plaintiff was assessed by the joint single expert Dr Yu Yuk Ling, a specialist in neurology, on 14 January 2016 in the presence of his wife.  Dr Yu compiled a report dated 29 February 2016.

24.In view of the parties’ hot dispute over whether the plaintiff could resume his pre-accident work as an aero engine mechanic, a matter opined to by Dr Yu given in paragraph 19 of her report, I would set out below in detail the relevant parts of her report.  I will begin by quoting paragraph 19 of her report:-

“19. As far as his post-concussional syndrome is concerned, he should be able to resume his pre-accident employment as an aeroplane engine maintenance worker, with mildly compromised work capacity.”

25.In the report, after setting out the accident and related events and treatment, Dr Yu noted that the plaintiff was then still receiving psychological treatment at 2-monthly intervals, and that the plaintiff was currently on regular medications of antidepressant (sertraline 50 mg, bupropion ER 300 mg om) and sedative (Alprazolam 0.5 mg tds) and consumed zopiclone 7.5 mg nocte, Panadol 500 mg and Stemetil 5 mg on a need basis.

26.Dr Yu then reported the present neurological symptoms and disabilities of the plaintiff, according to him, as follows:-

“8.1 Constant diffuse headache of a dragging character and varying intensity. The headache, when severe, may be associated with dizziness, but not nausea, vomiting or visual disturbance. The severe headache occurs in bouts every day, and the duration of each attack is about 15 minutes. The headache may wake him up from sleep. The headache is relieved by Panadol which he consumes about 3 tablets a day. He also takes a rest from work when the headache comes on.

8.2 Intermittent dizziness of varying intensity. This symptom, when severe, may be associated with disequilibrium and vertigo but not nausea or vomiting. It may occur with or without headache. The severe variety of dizziness occurs in bouts every day, and the duration of each attack is about 30 seconds. It is relieved by Stemetil which he consumes about 14 tablets a week. He also takes a rest from work when the dizziness comes on.

8.3 He has become forgetful and absent-minded. He may forget instructions from others at work, what he has said or done a moment ago, or where he has placed his belongings. However, he has not lost item of value. He has forgotten to turn off the water tap or flush the toilet after use. He has to be reminded of his appointments, otherwise he may forget about them.

8.4 His personality has changed. He used to be mild tempered but his temper control is now poor. He has become easily irritable, and he scolds his wife and children over trivial matters. He does not throw things around when he becomes frustrated, and he has not been physically violent. He was sociable but is no longer so. He feels frustrated about the consequences of the accident, and he no longer has suicidal ideas. He has reduced libido.

8.5 He has insomnia every night.  He sleeps at around 12 midnight and wakes up at 4am. He sleeps about 1½ hours more after taking hypnotics.”

27.Dr Yu then reported that the plaintiff was independent in all activities of daily living, including managing public transport and carrying out banking transactions.

28.On examination, Dr Yu found

“12. He was cooperative and forthcoming, and gave a detailed account of the events, his symptoms and disabilities. During the interview and examination, he was attentive and maintained good eye contact. His mood was neutral with no obvious features suggesting anxiety or depression.”

29.The plaintiff scored within normal limits when his higher mental functions – orientation, registration, attention and calculation, recall and language – were tested with the Mini-Mental State Examination.  His test results for Current Knowledge and Abstract Thinking were normal and the response was of average speed and to the point.  The cranial nerves were normal.  Motor and sensory functions of the upper and lower limbs, tendon reflexes and gait were also normal.

30.Dr Yu then opined the following :-

“14. Head trauma (of mild to severe degree) may be complicated (sic) the post-concussional syndrome, and such head trauma may or may not be associated with impairment of consciousness. This syndrome includes symptoms such as headache, dizziness (usually lacking the features of true vertigo), fatigue, irritability, difficulty in concentrating and performing mental tasks, impairment of memory, insomnia, and reduced tolerance to stress or emotional excitement. These symptoms may be accompanied by feelings of depression or anxiety. The condition is thought to be partly physical due to disturbance of brain functions and partly psychological in reaction to consequences of the accident.

15. Mr. Lam has the post-concussional syndrome as evidenced by his current symptoms of headache, dizziness, subjective impairment of memory, irritability and insomnia. This same diagnosis was made by attending neurosurgeons at TMH and doctors of the Employees’ Compensation Board.

16. Most patients with the post-concussional syndrome due to a mild head injury achieve maximum recovery within 6 months, though further minor improvement may take place in another 6 months. As it is 31 months from the time of injury, Mr. Lam’s post-concussional syndrome is permanent by now.

17. Mr. Lam has received an adequate course of treatment from the neurologist and neurosurgeons, and further neurological or neurosurgical consultations would not be necessary. Symptomatic relief of his headache and dizziness can be provided at the psychiatric Clinic which he attends regularly.

18.  The percentage of permanent impairment of the whole person … is assessed to be 3%.”

31.Then Dr Yu gave her opinion in paragraph 19, which I have quoted above.

32.Regarding the period of sick leave, Dr Yu opined very briefly in paragraph 20 in one short sentence that “the appropriate duration of sick leave in this case should be 9 months”.

C.    COULD THE PLAINTIFF HAVE RESUMED THE WORK OF AN AERO ENGINE MECHANIC?

C1.  Has the plaintiff been malingering?

33.Mr Ho submitted that the plaintiff has been malingering all along by exaggerating his symptoms and thereby not seeking to resume his pre-accident work.

34.Mr Ho contended that such was shown, during the initial period after the accident, by (a) the report of A&E of TMH concerning the plaintiff’s attendance there on 13 June 2013[6] (“the TMH A&E Report”) did not mention any complaints of dizziness and insomnia, (b) the plaintiff was able to resume work between 18 June to 5 July 2013, and the record showed that in that period he clocked more than average overtime working hours during that period, and (c) the fact that he did not seek free medical treatments from doctors appointed/authorized by the defendant (his emphasis)[7].

35.I do not find the contention valid.

36.Firstly, regarding the TMH A&E Report.  It was brief in every aspect.  It stated that “the chief complaint was headache after injury” (my emphasis).  By describing that complaint as the chief one, it suggested that there were other subsidiary or minor complaints that the doctor had not recorded.  The plaintiff attended the A&E on 13 June 2013, which was just one week after the accident.  The stitched head wound no doubt was very visible and aching.  It is also not disputed that in subsequent consultations, the plaintiff did complain about dizziness and insomnia.  In such circumstances and with respect, there is little substance in relying on the lack of specific mentioning of dizziness and insomnia in the report on just this instance.

37.Moreover, if there were no genuine need, I find it hard to believe that the plaintiff, if he were only minded to malinger, would, as he did, attend A&E of TMH at as early as 7:46 am and at a time when the sick leave previously given (up to 15 June 2013) had not yet expired.  I further note that after the expiry of the extra 2 days’ sick leave given by A&E of TMH and on 18 June 2013, the plaintiff resumed work, instead of attending other government clinic or private doctor for treatment and further sick leave.  This, in my view, tend to show that the plaintiff was not malingering.

38.Secondly regarding the overtime work undertaken in this period, it is clear from the evidence[8], and was not disputed, that consistently working overtime was a norm for the Senior Tradesmen.  As can be seen from the table produced by the defendant[9], substantial overtime work indeed were forecasted and budgeted and no doubt maintenance and work schedule were planned accordingly.  When the plaintiff resumed work after the expiry of sick leave, it was therefore not surprising that he was expected to resume back to the norm.  I particularly note that while Mr Ho compared the plaintiff’s own overtime hours in this period with those of his own in the earlier months, there was no evidence proffered about, and therefore comparison with, the overtime working hours of his colleagues in the same period.  I accept the plaintiff evidence that he was asked to work such overtime hours as the workload during that period was heavy.

39.Thirdly and in any case, it is the plaintiff’s evidence that he had headache and dizziness while working during the said period when he resumed work, and he found it hard to concentrate and had to take periodic rests, such that he applied for and was seen by Dr Siu Hon Pong and then Dr Edmund Ho both of Haeco Medical Clinic respectively on 5 and 8 July 2013[10]. In this regard, I agree with Mr Lin, counsel for the plaintiff, that the defendant was in a very good position to proffer rebutting evidence from colleagues who worked along side the plaintiff and the plaintiff’s supervisor(s), who, according to Ms Joey Chan the Human Resources Officer, should be reporting such matters to the Human Resources Department.  However, none was proffered.  Moreover, the pace Dr Siu and Dr Ho handled the plaintiff’s situation is also noteworthy - Dr Siu saw the plaintiff on a Friday and the plaintiff was arranged to see a second doctor, Dr Ho, on Monday next, who then referred the plaintiff to see Dr Chung Chun Pong, a specialist in neurology, the next day.  It seems to me that the pace suggested a sense of immediate need to attend to the plaintiff on the part of Dr Siu and Dr Ho; of course, it would also show that the defendant was taking care of its employees.

40.Fourthly, the fact that the plaintiff saw Dr Siu and Dr Ho of Haeco Medical Clinic was not challenged in cross examination.  Therefore, and with respect, I think Mr Ho was mistaken when he said that the plaintiff had not sought the free medical treatments offered by the defendant.

41.In the premises, I find that the plaintiff did suffer headache and dizziness during the time he so resumed work.  I so find also because I find the plaintiff an honest, credible and reliable witness, a matter I will say more later.

42.Mr Ho then submitted that “there was no objective evidence of significant residual problems”[11] (his emphasis).  Nevertheless, Dr Yu has clearly opined that the plaintiff suffered and will suffer from residuals, which I will go into detail in the next sub-section when I discuss Dr Yu’s opinion.

43.Mr Ho then contended thus : “The fact that the Plaintiff did not even try to operate the Water Jet Machine once after August 2015 (when he in fact operated the Water Jet Machine from 18 June 2013 – 4 July 2013), is highly suggestive that the plaintiff has deliberately underperformed since August 2015.”

44.I do not find such criticism against the plaintiff or the contention valid at all.  Firstly, it was clearly a different set of circumstances when the plaintiff operated the Waterjet Machine during the time he resumed work between 18 June to 4 July 2013.  At that time, he just had the head injury from which he appeared to be recovering.  He resumed work after the expiry of sick leave but found that he could not handle the work, and treatment was immediately sought from doctors appointed/authorized by the defendant.  In contrast, in August 2015 when he resumed work, he was repeated certified by treating doctors as fit for administrative work only (see paragraph 20 above). Secondly, as explained by the plaintiff in cross-examination, which was not disputed by the defendant and seems to me make abundantly sense, the maintenance of aero engines and their parts were highly sophisticated work and the engine parts were expensive and the safety of aeroplanes was concerned as well as the safety of the plaintiff’s colleagues as it involved, among others, the operation of mechanical cranes to hoist and transport engine parts into and out of the Waterjet Machines.  It was therefore not up to the plaintiff, and as he explained - irresponsible, for him “to try” to operate the Waterjet Machine.  Thirdly and importantly, it was the defendant’s case that it followed the doctors’ certificates and assigned to the plaintiff administrative duties only.  There is no evidence or even suggestion that the defendant had after August 2015 ever assigned or offered the plaintiff to resume operating the Waterjet Machine.  In light of the above, I do not see how this criticism could be made against the plaintiff.

45.Not only do I find the defendant’s above contentions not established, I have also considered the following circumstances and matters which lead me to conclude that the plaintiff was not malingering.

46.At the time of the accident, the plaintiff has developed a career as an aero engine mechanic, having worked for the defendant for 23 years.  The job was stable and secured and he has been receiving very decent pay.  He was in his early 40s.  He had a good but young family, his children were still young with his daughter only a baby.  His wife worked a clerical job earning HK$14,000 a month.  In these circumstances, it seems to me highly improbable that he would be mindful of forgoing and risking his secured career and having his family suffered a long period of no or little income from him since December 2013, by malingering or continue to malinger with a view of getting a higher amount of damages, which at the time, he would not be able to be certain as to how much he would get, if he would get any at all.

47.The report of CPH dated 16 December 2015 reported that “[the plaintiff] developed secondary depression since January 2014, precipitated by a lack of progress and loss of income”.  That aligned with the fact that since 5 December 2013, the plaintiff was no longer paid any periodic payment under Employees’ Compensation Ordinance, which is a matter of common ground (the defendant’s insurer refused to so pay as the plaintiff requested his own expert be also present during the examination by the insurer’s expert and there were then difficulty or dispute over the arrangements).

48.Moreover and as said, when the plaintiff suffered the headache and dizziness when he first resumed work, he sought treatment from doctors provided by the defendant, and not elsewhere.  Also, in my above narration of his treatment, I mention, as was the fact, that all the subsequent and successive treatments he received were received not upon his request or initiative, but upon referral by the treating doctors.

49.As the police was involved and the circumstances and other details were well documented in the Progress Note of TMH dated 7 November 2014[12], I find that the suicide attempt on 6 November 2014 did take place and for which the plaintiff felt sorry.  I find it very hard to believe that such suicide attempt was staged as part of his malingering.

50.In the consultation note by CPH of the consultation on 30 June 2015[13], it was recorded that there were still, among others, “persistent dizziness, headache and vertigo” and that “the medical board assessment will be held in 8/2015”, but the plaintiff “wants to try to resume job but preferred light duty first”.  He was then given a letter saying he was fit for resumption of light duty and then sick leave for just one week, as opposed to 4 to 5 weeks being given during previous 14 or so consultations.  I find that such initiation on the part of the plaintiff militates against the playing of “the sick role” or malingering on the part of the plaintiff.

51.I have quoted in paragraph 26 above Dr Yu’s report of the plaintiff’s complaints of symptoms and disabilities.  It can be seen that the complaints were described in detail and with specifics, which is a trait uncustomary for a malingerer.  Such detail and specificity would enable Dr Yu to better assess whether the complaints were genuine or otherwise supported by medical learning.  Dr Yu in her report did not even suggest or hint that the plaintiff might be exaggerating or malingering.  Likewise and materially, Mr Ho was unable to point to any such hint or suggestion in any of the treating doctors’ reports or consultation notes.

52.There was clearly no attempt on the part of the plaintiff to underperform before Dr Yu.  He said he no longer had suicidal ideas and was independent in all his daily activities.  He scored normal in all the tests with regard to higher mental functions.  He was observed by Dr Yu to be cooperative, forthcoming and attentive with neutral mood with no obvious features suggesting anxiety or depression.  He also gave detailed account of events and his symptoms.

53.Before this court and when giving evidence, the plaintiff was likewise attentive and forthcoming and was unshaken during cross-examination.  I was positively impressed by him as a witness.  I am satisfied that he was not exaggerating his symptoms and disabilities and that he was genuine in his complaints.  I find his testimony credible and reliable.

C2.  Dr Yu’s opinion, paragraph 19 of her report

54.Dr Yu in paragraph 14 of her report explained that head trauma may be complicated by the post-concussional syndrome and listed out the symptoms there.  She further opined that such symptoms may be accompanied by feelings of depression or anxiety.  She also opined and explained that the condition is thought to be partly physical due to the disturbance of brain function and partly psychological in reaction to consequences of the accident.

55.Dr Yu then went on to opine in paragraphs 15 and 16, in no uncertain terms, that the plaintiff “has the post-concussional syndrome” and “[the plaintiff’s] post-concussional syndrome is permanent by now” (my emphasis).  Dr Yu also referred to the fact that attending neurosurgeons in TMH and doctors of the Employees’ Compensation Board made the same diagnosis.

56.Based on Dr Yu’s opinion, I find that the plaintiff’s post-concussional syndrome is permanent.

57.As can be seen, it is not Dr Yu’s opinion that post-concussional syndrome should or would be proven or manifested by any “objective evidence”, the lack of which, as I mention above, Mr Ho now placed heavy reliance on.  Dr Yu therefore did not discuss or refer to whether there was or was not any “objective evidence”.  I think Mr Ho’s such reliance on “lack of objective evidence” was misplaced.

58.Now, in arriving at the above opinion Dr Yu had in her full view the plaintiff’s detailed complaints of symptoms on one hand and on the other all the results of her examination and her assessment of the plaintiff.  However, no where in her report did she cast any doubt or express any reservation over whether the plaintiff was suffering from those symptoms and disabilities.  In paragraph 17, she further opined that “Symptomatic relief of his headache and dizziness can be provided at the Psychiatric Clinic which he attends regularly” (my emphasis).

59.Given the above, I take the view that Dr Yu has clearly accepted that the plaintiff was suffering from the symptoms he then complained of, and she further opined that he will continue to suffer from them as she opined that the post-concussional syndrome was permanent.  I so find, based on her said opinion and my view that the plaintiff’s complaints are genuine.

60.It can be recalled that the plaintiff’s main complaints, as reported in paragraph 8 of Dr Yu’s report were “the severe headache occurs in bouts every day, and the duration of each attack is about 15 minutes” and “Intermittent dizziness of vary intensity … the severe variety of dizziness occurs in bouts each day and the duration of each attack is about 30 seconds”.  While accepting the plaintiff would be suffering from such headache and dizziness, Dr Yu in paragraph 19 of her report opined that he should be able to resume his pre-accident employment as an aeroplane engine maintenance worker with mildly compromised work capacity.  She did not elaborate on why she so opined or explain what the mildly compromised work capacity meant and would entail.

61.Mr Lin submitted that the plaintiff clearly could not return to his pre-accident career of an aero engine mechanic.  He cited to me the case of Wong Leung Chi v Luen Fat Civil Engineering Limited & Another (HCPI 975/2002, unrep, 25 August 2004) in which Deputy High Court Judge Saunders (as he then was) found “unrealistic” the opinion of the expert that the plaintiff could return to work as a formworker with periodic rests as the learned judge viewed that realistically no employer would engage such a worker on the current high pay.  Mr Ho submitted that there was no basis to depart from such opinion of Dr Yu, and stressed that while the evidence of a single joint expert should be assessed in light of all other evidence before the court, it should be unusual to disregard the expert’s evidence.

62.The evidence now before me and my findings are:-

a.     after the unsuccessful return to work in the initial period, the plaintiff was diagnosed with post-concussional syndrome;

b.     he was continuously treated;

c.     the treatments were opined by Dr Yu to be appropriate;

d.     since the expiry of sick leave in July 2015 he was repeatedly certified to be fit for administrative work only;

e.     in February 2016 Dr Yu opined that his post-concussional syndrome was permanent with the symptoms and disabilities as above said, and which I also find as genuine;

f.     in early 2018 the plaintiff tried to resume work in the workshop by working in the paint room, but again he found himself unable to cope;

g.     he was again certified by CPH by letter dated 15 May 2018^[14] that he was fit for administrative work only; and

h.     there is no evidence from the defendant that the plaintiff was assigned at any other occasion to perform maintenance and repair work in the workshop but that the plaintiff refused.  Indeed, the effect of the evidence of Joey Chan was that the defendant was careful in appraising and assessing what work could be appropriate assigned to the plaintiff and the defendant decided to assign him to his present administrative duties.

63.Based on such evidence and findings, I am satisfied that the plaintiff was and would be unable to return to his pre-accident job of an aero engine mechanic.

D.   PAIN, SUFFERING AND LOSS OF AMENITIES

64.The physical injuries the plaintiff suffered were relatively minor.  The consequences in the form of post-concussional syndrome with severe headache and dizziness that occur in bouts each day however are very real, prolonged and would stay with him for the coming years.  His circumstances had been aggravated by the emotional burden of not being able to take care of his then young family as he would have intended.  He used to enjoy good health and was a sporty person.

65.I have considered the authorities cited to me.  Mr Lin cited Tsang Siu Hong v Kong Hoi For HCPI 173/2001 (HCJ Wright, 10 March 2003), Limbu Ramesh v Chu Fung Man HCPI 192/2005 (Master Roy Yu, 28 April 2006), Abbas Tahir v Lam Kwok Wo HCPI 287/2012 (Master Leong, 2 September 2016) and Wong Leung Chi v Luen Fat Civil Engineering Limited & Another supra.  Mr Ho cited Tong Lin Keung v Wong Chi Leung HCPI 789/1996 (Master Lung, as he then was, 20 October 1999), Chang Tsun Tein v Wai Lee Scaffolding Co Ltd DCPI 818/2008 (DJ Mimmie Chan, as she then was, 26 May 2010), Lam Yim Fong v Advara Investment Ltd DCPI 2084/2011 (DJ Alex Lee, as he then was, 8 March 2013), Chow Shek Ping v Lai Shing Construction Engineering Ltd & Others DCPI 1724/2016 (DJ MK Liu, 1 June 2017).

66.Considering all the circumstances and in my view, a sum of HK$400,000 for PSLA is reasonable and appropriate.

Pre-trial loss of earnings

67.The defendant contended that the plaintiff’s pre-trial loss of earnings should be confined to his loss sustained during a sick leave period of 9 months, as opined by Dr Yu, minus the income he received for resuming work from 18 June to 5 Jul 2013.

68.I do not accept that contention.  As said, I find that the plaintiff has not been malingering and that his complaints and symptoms genuine, and for which the treating doctors had been issuing to him sick leave from the date of the accident until 6 July 2015 (save from 18 June to 5 Jul 2013).  I note that Dr Yu in her report opined that the treatment received by the plaintiff was appropriate and she did not in any way challenge or doubt the sick leave certificates issued by the treating doctors.  It is common ground that the defendant had been acting according to the sick leave certificates and therefore it had not arranged for the plaintiff to return to work during the sick leave period.  There is no suggestion that the plaintiff could have been engaged by another aero engine repairs and service provider for the same make(s) of aero engines (as there was no other in Hong Kong) the repairs and maintenance of which the plaintiff was trained and qualified for.  I am therefore satisfied, despite Dr Yu’s opinion, that the plaintiff’s loss of income during the sick leave period given by the treating doctors was consequential upon his injuries and was reasonable, and would him the same.

69.Since I find for the plaintiff’s case regarding the period of sick leave and the fact that he has suffered partial loss of earnings from 7 July 2015 to trial and on the evidence available, I would calculate the plaintiff’s pre-trial loss by ascertaining the total income the plaintiff would have earned but for the accident from the date of the accident up to trial and minus therefrom all the earnings he actually received within the same period.

70.Mr Lin asked that the average monthly income the plaintiff would have earned be ascertained by reference to the salary records of 2 comparable Senior Tradesmen for the period from April 2018 to March 2019.  I do not accept that as accurate for the calculation of average monthly income of the plaintiff for 2013 to 2018 the said records only reflect the level of income for 2018/2019.

71.For the calculation of income for 2013 up to the end of March 2018, I prefer the calculation put forth by Mr Ho that the average monthly income of the plaintiff should be ascertained by applying the yearly increase of 3% per annum to his average monthly income at the time of the accident, which was the annual increase given by the defendant to its employees.  Thus, the total income the plaintiff would have earned up to March 2018 but for the accident would have been :-

7 June 2013 to 31 March 2014	HK$24,326 x 9 months and 23 days = HK$237,584
April 2014 to March 2015	HK$24,326 x 1.03 x 12 = HK$300,669
April 2015 to March 2016	HK$24,326 x 1.03 x 1.03 x 12 = HK$309,689
April 2016 to March 2017	HK$24,326 x 1.03 x 1.03 x 1.03 x 12 = HK$318,980
April 2017 to March 2018	HK$24,326 x 1.03 x 1.03 x 1.03 x 1.03 x 12 = HK$328,550
Total :	HK$1,495,472

72.I accept that the plaintiff’s average income from April 2018 onwards should be calculated by reference to the salary records of the said 2 comparable Senior Tradesmen[15]. Their salary records would reflect the increase in the rate of overtime work and other specific increase(s) in the remuneration package of a Senior Tradesman other than the said 3% annual increase.

73.I was informed by Mr Lin, and not disputed by Mr Ho, that the plaintiff has requested the defendant to provide the salary records of other comparable Senior Tradesmen but was only given the records of these 2 by the defendant. These 2 Senior Tradesmen were promoted as Senior Tradesman only in October 2014 and July 2016 respectively.  They were therefore much more junior than the plaintiff.  That notwithstanding, the plaintiff was prepared to accept them as comparable.  Their records recorded 13 “wage type” – “Basic Hours (Worked)”, “Pay OT Hours”, “Paid Absence @ BP Rate”, “CNY Bonus”, “Incentive Bonus” and such - for the first Senior Tradesman and 11 for the second for the twelve-month period from April 2018 to March 2019.  The total remuneration received by the 2 Senior Tradesmen for that period was respectively HK$408,844.21 and HK$398,303.57.  The average monthly earnings of these 2 Senior Tradesmen were HK$33,631 for that period.

74.Mr Ho submitted that certain sums in the said records of these 2 Senior Tradesmen were not “earnings” as their respective monthly MPF were HK$1,107.19 and HK$1,054.93 only.  Mr Ho effectively asked me to calculate their earnings based on the MPF contribution figures only and to disregard other items of “wage types” which might or might not form the base figure for the calculation of the MPF contributions, while there was no evidence to show that these other “wage types” were not part the remunerations they had received.  Thus, there is simply no basis to say that the plaintiff would not also have earned these other items of remuneration which these 2 Senior Tradesmen had.  With respect, I find no substance in the submission and reject it.

75.The income the plaintiff would have earned from April 2018 to August 2020 would have been:-

April 2018 to March 2019	HK$33,631 x 12 = HK$403,572
April 2019 to March 2020	HK$33,631 x 1.03 x 12 = HK$415,679
April 2020 to August 2020	HK$33,631 x 1.03 x 1.03 x 5 months = HK$178,396
Total :	HK$997,647

76.According to the list of the plaintiff’s earnings from June 2013 to August 2020 attached to the plaintiff’s written Closing Submissions, which is not disputed, the plaintiff altogether received from the defendant in that period a total sum of HK$1,774,965.

77.The plaintiff’s pre-trial loss[16] is therefore: HK$1,495,472 + HK$997,647 – HK$1,774,965 = HK$718,154.

Future loss of earnings

78.It is the plaintiff’s case, and not disputed by the defendant, that from August 2015 to August 2020, his average monthly earnings were HK$24,656.  Using the average monthly earnings of HK$33,631 for the period from April 2018 to March 2019 and updating it to the time of trial (HK$33,631 x 1.03 x 1.03), the plaintiff would have been earning HK$35,679 in September 2020.  He therefore will suffer a partial loss of earnings at HK$11,023 a month.

79.In assessing future loss, both Mr Lin and Mr Ho agreed that the court could take into account circumstances that have arisen at the time of trial. In this case, it cannot be ignored that the Covid-19 pandemic has impacted the aviation industry in a significantly adverse way.  Both Mr Lin and Mr Ho submitted that a reduction of the multiplier was an appropriate manner to reflect the negative impact of the pandemic as it was likely that at some point in time the aviation industry would recover.

80.The plaintiff was 48 years old at trial.  Mr Lin submitted that on the basis that but for the accident the plaintiff would have retired at the age of 65, and the discount rate being 2.5% per annum, the multiplier was 13.55[17]. Mr Lin then advocated a reduction of the multiplier by 1 should sufficiently reflect the impact of the pandemic.

81.Mr Ho pointed out that the plaintiff was almost 49 years old at the time of trial and contended that the plaintiff would need to lift objects up to 30 pounds and would unlikely continue to work overtime on a regular basis beyond the age of 60.  The defendant also produced a table[18] comparing the budgeted with the actual workload for the year 2020 updated up to 17 September to show, among others, that by August 2020 the overtime work hours have been reduced from the budgeted 28.74% to 1.5% of the work.  Mr Ho submitted that in the circumstances and looking at the matter in the round, the applicable multiplier should not exceed 5.

82.Despite the defendant’s contention that it was unlikely that a Senior Tradesman would continue to work overtime on a regular basis beyond the age of 60, no information or evidence was proffered to that effect concerning the other Senior Tradesmen now employed by the defendant.  Moreover, it is common ground that the plaintiff was otherwise healthy before the accident, and cranes and other appropriate equipment are being provided in the defendant’s facilities to do the heavy lifting.  Considering those, I think more likely than not that had it not been the accident the plaintiff would have worked and continued to work overtime on a regular basis as a Senior Tradesman up to the age of 65.

83.Having considered all the above and in the round, I come to the view that a reduction of the multiplier of 13.55 by 2 is fair and appropriate.

84.The plaintiff’s future loss of earnings would therefore be HK$11,023 x 12 x 11.55 = HK$1,527,787

Loss of earning capacity

85.With the residuals as I found above, the plaintiff would no doubt in the future suffer a disadvantage in the labour market.

86.Mr Ho submitted in opening that “The risk that he will lose his current job as a result of any alleged residual disability is 0”[19]. In closing, it was submitted that there was no factual basis to consider the possibility of the plaintiff being laid off at some point after the conclusion of this trial.  However, according to Ms Joey Chan the arrangement made by the defendant for the plaintiff to handle administrative work has been a temporary one, and such work was not supposedly to be taken up by a Senior Tradesman. The so-called administrative work undertaken by the plaintiff was actually photocopying and scanning of documents, for which he as Senior Tradesman had been receiving on average HK$24,656 a month.  Evidently, such tasks could have been performed by an office assistant costing the defendant much less a month. There is no escaping that there is a strong economic incentive on the part of the defendant to replace the plaintiff with such an office assistant.  I thus agree with Mr Lin that the plaintiff’s prospect of continuing with his employment with the defendant must be very vulnerable and dim.  The disadvantage in the labour market the plaintiff will suffer therefore is very real.

87.If he retires at 65, the plaintiff will still have a working life of slightly over 16 years.  The sum of HK$200,000 now claims by the plaintiff would represent about 8.1 months’ salary (using HK$24,656 as the monthly salary, being the amount he is taken to be earning in the calculation of loss of future earnings above).  In the circumstance, I think the sum of HK$200,000 is reasonable and appropriate, and I so award.

Special damages

88.The plaintiff claims medical expenses of HK$61,716.00[20], tonic food HK$23,056, Chinese bonesetter treatment HK$5,506 and travelling expenses HK$8,500.  They total to HK$98,778.

89.The defendant’s position was that a global sum for all special damages in the amount of HK$60,000 should be awarded and that the plaintiff has already been reimbursed medical expenses in the sum of HK$48,840.30. This reimbursement was not disputed by the plaintiff.

90.I award medical expenses in the round-up sum of HK$12,875 (HK$61,716.00 - HK$48,840.30), tonic food in the sum of HK$8,000 and travelling expenses in the sum of HK$8,500 as being reasonable.  I will not allow the bonesetter treatment costs as there is no evidence to show how they related to the head injury and was necessary.  I thus award special damages in the total sum of HK$29,375.

MPF

91.As I understand that all the income figures mentioned above already included in them the MPF, I therefore make no separate award under this head.

Summary of awards

92.I award:-

PSLA	HK$400,000
Pre-trial loss of earnings	HK$718,154
Post-trial loss of earnings	HK$1,527,787
Loss of earning capacity	HK$200,000
Special damages	HK$29,375
Total :	HK$2,875,316

93.Credit will be given to the employees’ compensation received by the plaintiff in the sum of HK$250,000.

Disposal

94.I will enter judgment in favour of the plaintiff in the above sum together with interest as below but netting the said sum of HK$250,000.

95.I award to the plaintiff interest on general damages at 2% per annum from the date of writ to the date of this judgment, on pre-trial loss of income and special damages at half judgment rate of 4% from the date of the accident to the date of this judgment, then on all sums at judgment rate from the date of this judgment until full payment.

96.I order, on a nisi basis, that the defendant do pay to the plaintiff the costs of this action, including all costs reserved and the costs of HCPI 585/2016 before it was transferred to this court to be taxed on the High Court scale, to be taxed if not agreed; and the plaintiff’s own costs to be taxed according to the Legal Aid Regulations.  This order nisi will become absolute unless any party applies to vary by summons within the next 14 days.

97.It remains for me to thank Mr Lin and Mr Ho for their assistance.

Mr Kenny Lin, instructed by B Mak & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Leon Ho, instructed by Au & Associates, for the defendant