Cheung Hon Yu v. Chun Lee Engineering Co Ltd and Another
Read the full judgment text of HCPI 87/2019 on BabelCite. This High Court CFI judgment was delivered on 11 June 2021.
1. At the material time, the 2nd defendant is the principal contractor of the construction site at the West Kowloon Terminus Station North of the Express Railway Link (“the Site”), and have sub-contracted part of the work to the 1st defendant. The plaintiff was employed by the 1st defendant as a plumbing and drainage technician. He was assigned to work at the Site when he was injured at work.
Cited by 5 cases · Cites 5 cases
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HCPI 87/2019 [2021] HKCFI 1687 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 87 OF 2019 ________________________
________________________ Before: Master Roy Yu in Court Date of Hearing: 24 March 2021 to 26 March 2021 Date of Judgment: 11 June 2021 _________________________________ JUDGMENT _________________________________ The Application 1.At the material time, the 2nd defendant is the principal contractor of the construction site at the West Kowloon Terminus Station North of the Express Railway Link (“the Site”), and have sub-contracted part of the work to the 1st defendant. The plaintiff was employed by the 1st defendant as a plumbing and drainage technician. He was assigned to work at the Site when he was injured at work. 2.I refer to paragraph 7 of the Statement of Claim on the plaintiff’s case on how the accident happened -
3.Partial liability has been admitted by the defendants and by a consent order, interlocutory judgment on liability to the extent of 80% has been granted in favour of the plaintiff on 26 July 2019. The case come before me today for assessment of damages. 4.According to the Revised Statement of Damages, the plaintiff claims a sum of HK$4,955,644.81 with the following items of claim –
5.In the opening submission of Ms Leung, counsel for the plaintiff, she revised the claim for pre-trial loss of earnings to $1,825,426.36 to take into account the actual trial date. She also seeks to revise the plaintiff’s claim for loss of earning capacity to $200,000. Mr Wong, counsel for the defendant takes issue with the increased claim on loss of earning capacity as no amendment has been applied for. Ms Leung submits that no amendment is necessary and it is within the discretion of this Court to grant a sum higher than the amount pleaded in the Revised Statement of Damages. I shall come back to the issue later. 6.Mr Wong summarised the defendants’ case in his opening -
7.The key dispute is the seriousness of the plaintiff’s injury and whether he could return to pre-accident work and if not what kind of work that he could handle. The Plaintiff’s Evidence 8.The plaintiff is the only factual witness for this assessment. He adopted his witness statement dated 11 October 2019 and his supplemental witness statement dated 10 July 2020 as his evidence-in-chief. 9.The plaintiff was born on 28 November 1968 and was 48 years old at the time of the accident. He is now 52. 10.The plaintiff said in his witness statement that at the time of the accident, he was to lift 7-8 pieces of screw rods from the ground, weighing about 30-40 kg in total. He squatted down to lift the rods and hold them close to his chest. And when he was standing up, he felt severe back pain. He lost power, fell forward and collapsed on the ground. (當時我踎低，左、右手將一堆約7-8條絲杆(共約重30-40公斤)取起抱至身前，正在站起期間，突然感到後腰劇痛，随即全身因劇痛而乏力，身體向前傾，整個人趴跌在地上。) 11.He was unable to get up. As there was no other people around, after 10 minutes, he used a screw rod as support to get up and knee on the ground. Then a co-worker passed by who help him up to sit down. Later, he went by taxi to Kwong Wah Hospital for treatment. At Kwong Wah Hospital, the plaintiff said he had X-ray. He was told by the doctor that there was no fracture or shift disc. He was given painkiller and 7 days’ sick leave. He was discharged on the same day. 12.I also refer to the medical report from Dr Wu Chun Wah of Kwong Wah Hospital dated 6 February 2018. It is recorded that on his first visit, the plaintiff was sitting on a wheelchair (provided by the Hospital) and was fully alert. He could manage to stand up and walk a few steps on his own slowly. There was mild tenderness, and muscle guarding over his lower back. Bilateral straight leg raising tests were full and reflexes were normally present. Painkillers were given and X-rays of his lumbar spine revealed no obvious bony fractures. 13.The plaintiff continues in his witness statement that on returning home from hospital, he found himself limping when walking. He had pain and could only sleep after taking painkiller. Starting from the following day, he went to a number of bone setters for treatment before his next follow up at Kwong Wah Hospital. (He also had on and off treatment later from bone setters which he claimed reimbursement of their charges.) 14.During sick leave, being the first 7 days of sick leave after his injury, the plaintiff said the pain at his waist radiated to his left lower limb. His felt numbness and pain (麻痺疼痛) at his left thigh to his ankle. On 27 September 2017, he went to the outpatient clinic of Kwong Wah Hospital for treatment. No x-ray has been taken. Painkiller had been prescribed with sick leave. 15.As the pain persisted, the plaintiff returned to Mainland in October 2017 to receive a MRI examination (“the 1st MRI”). It is the plaintiff’s case that it showed that he had prolapsed intervertebral disc and I shall come to this examination again later. 16.As the pain persisted, the plaintiff received treatment once from Dr Wong Wai On at Kowloon Bay Integrated Medical Centre on 16 October 2017. He was given painkiller and sick leave. 17.He showed the 1st MRI report to the doctor at Kwong Wah Hospital during follow up appointment on 18 October 2017. The report of the 1st MRI had not been produced in Court, or to the experts. According to the record of Kwong Wah Hospital for consultation on 18 October 2017, it was recorded that 1st MRI in Mainland reported “L3/L4, L4/L5 PID”. He was arranged to have treatment from orthopaedic department of Kwong Wah Hospital on 27 October 2017. 18.Starting from 25 October 2017, the plaintiff was also arranged to have physiotherapy treatment at Kwong Wah Hospital. He received 16 sessions of treatment, up to 7 June 2018. 19.For the orthopaedic consultation on 27 October 2017 at Kwong Wah Hospital, the plaintiff said it was mainly to follow up the physiotherapy treatment. Painkiller and ornament had been prescribed. Sick leave was given. He was also arranged to have occupational therapy treatment (in addition to the physiotherapy treatment) starting from 29 December 2017. 20.The plaintiff said the pain from waist radiated down to left foot with numbness and pain, and he could not sleep. He said he was weak and painful when walking or sitting down. 21.Sometime by end of 2017, the plaintiff said he was also invited by loss adjustor from defendants’ side to receive treatment from Dr Cheung Man Kuen, an orthopaedic expert, of Ted Care Medical Centre. X-ray examination was done showing no fracture. After 2 visits, Dr Cheung said the plaintiff could return to work. The plaintiff felt he had not recovered and a MRI examination was arranged at iRad Medical Diagnostic Centre on 8 November 2017 (“2nd MRI”). The doctor advised him that he had degeneration, and advised him to return to work. 22.According to the 2nd MRI report, it was commented that there was mild L3/4, L4/5 central posterior disc herniation and posterior annular tears. No spinal canal, foraminal stenosis corda equine or exit nerve compression seen. There was mild lumber spondylosis. 23.The plaintiff sought a second opinion on the 2nd MRI from Dr Cheung Shao. The plaintiff was told that he had tears at the disc and was prescribed painkiller. The plaintiff brought the 2nd MRI to Kwong Wah Hospital and sought further comments from the treating doctor. The plaintiff said he was advised that he had disc herniation. He was recommended to have injection of steroid but the plaintiff refused in fear of unfavourable side effect. 24.I refer to the report from Dr Ng of Kwong Wah Hospital dated 18 May 2018 which also recorded that the 2nd MRI showed mild L3/4 and L4/5 discs herniation and posterior annular tear. 25.The plaintiff said after treatments from Kwong Wah Hospital (including physiotherapy and occupational therapy), and treatment from bone setters from private sector, his conditions did not improve. In August 2018, he was arranged to have another MRI examination (“the 3rd MRI”) in Kwong Wah Hospital. After the 3rd MRI, the doctor considered his condition to be stable or static and arranged medical assessment by the Assessment Board. His sick leave was granted up to 20 November 2018 by Kwong Wah Hospital. 26.The 3rd MRI report has the following findings –
27.Pausing here, it appears that he has problem with L3/4 and L4/5. There is evidence to suggest that the problems are partly due to degeneration. 28.And according to the report from physiotherapy department of Kwong Wah Hospital dated 14 March 2018, it is recorded that the plaintiff complained of moderate dull ache over his left back and radiated down to his left posterior lower limb. there was a 40% subjective improvement. But the plaintiff said he still have waist pain thereafter. 29.On 18 December 2018, Mr Cheung resumed his physiotherapy sessions with Kwong Wah Hospital till 4 March 2019. 30.Starting from 21 November 2018, the plaintiff consulted an orthopaedic specialist Dr Yen Chi Hung of Ted Care Medical Centre. He said he was advised by Dr Yen that the disc was desiccated, causing compression of nerve. He was given sick leave to have rest, and painkiller. Later, he was only given sick leave and no medication. No active treatment was recorded. He visited Dr Yen every 3 weeks until 18 June 2019. 31.Starting from 28 June 2019, the plaintiff was receiving treatment from another orthopaedic specialist Dr Poon Tak Lun. Dr Poon continue his sick leave to allow him time to rest. He received consultation twice until 23 August 2019. Thereafter, the plaintiff continued to receive treatment from boner setters and Chinese medical practitioners. 32.The plaintiff also said he had to have psychiatric treatment. After December 2017, his employer stopped the sick leave payment. Without income, and given the pain which disturbed his sleep at night, his mental conditions were affected. He had argument with his wife. He also said in cross examination that he had beaten his children. His wife made appointment for him to receive treatment at Ngau Tau Kok Jockey Club Clinic and was later referred to Yuen Fung Shui Psychiatric Clinic of United Christian Hospital for treatment. 33.Starting from 2 January 2019, the plaintiff received treatment from the psychiatric department of United Christian Hospital. No sick leave was given, but medication was prescribed. He is still receiving treatment. 34.It has been put to the plaintiff that the purpose of receiving psychiatric treatment is for the purpose of obtaining sick leave. This is denied by the plaintiff who explained that his character had changed as he had not beaten his children before. He felt uselessness but he had no suicidal idea. No psychiatric expert evidence has been adduced. 35.On his conditions, the plaintiff further said in his first witness statement, that after the injury, he could not walk too long. Otherwise he would feel numbness and pain at waist and left foot, and had to sit down for rest. And when sitting down, he must keep changing his sitting position, making him uncomfortable to sit or to stand. He also had to use chair with the correct height and hardness, or otherwise, it would make him feel very painful. 36.He also said that the pain concentrate at lower back, causing him sour and numbness. The pain radiating to left thigh, lower leg and ankle. He could not bend down to touch the ground with his hand. When brushing his teeth, he had to bent forward and after a period of time, the waist would feel painful. 37.As he felt numbness on his left foot, when he was walking, he would put his balance more on his right foot causing his right foot to have numbness and uncomfortableness. He could not carry heavy object after the injury. 38.This pain would increase when the weather become humid, or cold or rainy. When he slept, he had to change his position or the waist and left leg would get painful waking him up. Every night, he only had 3 to 4 hours of sleep. 39.He said he also had urinary and faecal incontinence. He was told by doctor that it was a sequelae of the waist pain. 40.After the injury, he did not go out as often and stayed at home. It also affected his sexual life, which affected the relationship with his wife. 41.And in his supplemental witness statement, he repeated that he had often had waist and back pain, left foot numbness and soar. He could not carry heavy objects, or to climb or to do strenuous job. He could not return to his pre-accident job. 42.There is no dispute on the pre-accident earning of the plaintiff. He joined the 1st defendant on 1 March 2017 as plumbing and drainage technician with a daily wage of $1,450. He is entitled to overtime payment and on the average, he had one hour of overtime pay every working day. On the average, he worked 26-28 days a month and his average earning would be $46,883 per month. This is not disputed by the defendant. 43.The plaintiff had received Employee Compensation in the sum of $627,735. 44.The plaintiff said, because of the injury, he cannot return to pre-accident work as a plumbing and drainage technician in construction sites. As part of his work, he had to carry heavy pipes and working material. When working outdoor, he may have to go onto scaffolding. In the future, he assessed he could be a plumbing and drainage technician to carry out maintenance work inside multi-storey buildings (which I call domestic plumber hereinafter). But he cannot squat for long, or to carry heavy pipe and materials. He estimates his earning would be around $13,000 to $16,000 as a domestic plumber. But he has not tried to work as a domestic plumber. 45.In his supplemental witness statement, the plaintiff said he had tried to look for work. Starting from 17 October 2019, he worked as a security guard at E-Max with a monthly salary of $12,600. His duties included standing for 4-5 hours a day, and to patrol for 2 hours. The work caused him back and waist pain, and numbness to his left foot. He quitted on 31 October 2019. He started another job on 1 November 2019 as security guard at Billion Centre Kowloon Bay with a basis salary of $11,800, together with overtime payment and hardworking bonus. While he was not required to walk or stand for so many hours as the previous job, he still had back pain and left foot numbness. He needed sick leave or unpaid leave from time to time to rest. His average earning is $11,800 per month. He is still doing this job. 46.The plaintiff has been cross examined on his pain issue and progress of recovery. 47.Mr Wong first refer to a medical note from orthopaedic department of Kwong Wah Hospital on the first consultation on 27 October 2017. It is recorded in the notes that: -
48.When being asked if he had told the doctor that his back pain was mild, the plaintiff said that he could not recall. He said he should be painful. 49.When he was asked that he could raise his left leg to 90 degrees and right leg to 80 degrees, the plaintiff first disagree. Later, he said the doctor would not lie against him. He said if he had to raise to 90 degrees, it was very difficult. 50.Mr Wong also refer to the notes of the orthopaedic department on the consultation on 8 December 2017. It is noted, inter alia, that the plaintiff has left sole and big toe numbness. There is no mention of pain or numbness of other part of his leg. The plaintiff said he should have mentioned to the doctor that his leg was painful. 51.On further examination, the plaintiff said about 1 month after the accident, the waist was not as painful as the time of the accident but still some pain. And the leg felt numbness and pain like needle pain. 52.Mr Wong referred to the note of the orthopaedic department on the consultation on 2 February 2019. The note recorded that his bilateral lower limb power was full. The plaintiff said his left side was always weaker since the accident. Mr Wong also refer to the record on S1 numbness, referring to his sole and ankle area. He agreed. 53.Mr Wong refer to the notes from orthopaedic department of Kwong Wah Hospital for consultation on 27 April 2018. It is recorded that the left sciatica symptoms were improving. Left L5/S1 power 4/5 with numbness. And straight leg test is 80/80. The plaintiff agreed that he could raise both legs to 80 degrees. He agreed that there was similar test every time. 54.Later, Mr Wong referred to the consultation notes for consultation on 20 July 2018, it was record that the doctor observed left L5/S1 power 4/5 with numbness over main L5 dermatome. Left L2-L4 power full, no numbness, straight leg test 80/80. The plaintiff disagreed and said the numbness extended to lower limb. And he agreed that he could perform the test as requested by the doctor, but with pain. 55.From the above cross examination, the plaintiff is swaying in his evidence when being confronted with the medical records. He tried to explain by saying that he just followed the instruction and did his best, even better than his best. I could not understand the reason why he would not inform the doctor if he was painful, as the purpose of the test on these examination was to assess his capability and to consider the treatment required. 56.Mr Wong referred to the consultation notes for consultation on 12 October 2018. The numbness was related to the left toe area. Other test show power full. The plaintiff said he was not painful every day. It all depended on his work and act. If he had not move anything heavy, he would not be painful. He later explained that it was not continuously painful to the same degree. It could be higher or lesser. But he had pain. 57.Pausing here, his answer could not sit well with his evidence that he had such pain as mentioned in his witness statement which I record above. To say the least, he had not given the full picture that he had goods days and was painful in some other days when he had done the wrong exercise or work. 58.On 12 October 2018, the plaintiff was given sick leave up to 20 November 2018, about a week after the scheduled assessment. 59.On 21 November 2018, the plaintiff consulted Dr Yen. At cross examination, the plaintiff said he wanted to consult a doctor as he had no further treatment from Kwong Wah Hospital. When questioned on treatment, plaintiff confirmed he was given painkilling and ornament by Dr Yen. No medicine was given. Plaintiff said he wished to recover and start working again. On further examination, he said he had medicine from Kwong Wah Hospital and therefore he had not asked for medicine. 60.It is put to the plaintiff that the purpose of these visit was to continue his sick leave. The plaintiff disagreed. When questioning on the treatment provided, the plaintiff said he was advised to swim to improve his strength. And the doctor also advised him on things or action that he should avoid. It was put to him that these are information and advice given by Kwong Wah Hospital which he did not disagree. 61.He was also cross examined on his physical conditions and his reported complaint at the examination by the experts. At the examination, the plaintiff could only squat half way. He said he could not squat because of waist pain and leg numbness. He said in Court that now he could squat. He was referred to the medical notes of Kwong Wah Hospital for assessment on 1 February 2018, which shew that he could do full squat without hand support on that day. The plaintiff again explained that sometimes after doing household work, he had pain. 62.He was also cross examined on some surveillance video. It is not disputing that the person appearing in the video was the plaintiff. The video shew that the plaintiff had been walking with normal gait, unaided. One scene shew that the plaintiff ran a short distance to catch a lift. 63.When being cross examined on his walking performance, Mr Wong put to him that he could walk normally and no sign of pain was discovered. The plaintiff answered that he was advised by a Chinese medical petitioner to try to endure the pain and walked in a normal manner so as to avoid further deterioration. (To be fair to the plaintiff, he had said in his supplemental witness statement that the bone setter advised him to work as normal.) 64.The plaintiff repeated that his condition of the day depended on what work he had done at home. Sometime he had attended to some house chores and he felt painful. 65.Before I further consider the credibility of the plaintiff, I shall also deal with the expert evidence. I have 2 joint reports from 2 orthopaedic experts who have make their respective comments on the condition of the plaintiff including the pain issues. They have given oral evidence in Court. Experts’ Evidence 66.The 2 orthopaedic experts are Dr Lam Kwong Chin and Dr Fu Wai Kee. The plaintiff was first seen by both Dr Lam and Dr Fu on 29 August 2018. Dr Lam and Dr Fu completed their joint medical report on 18th September 2018 (“1st Report”). The plaintiff was examined again by the 2 experts on 15th May 2020, and their supplemental joint medical report completed on 3rd June 2020 (“2nd Report”). 67.According to the 1st Report, Mr Cheung’s then complaints was that he was suffering from a persistent aching on his back, worse with prolonged walking for 30 minutes, stair walking and exercise. He suffered unprovoked pain at night, occurring 1-2 nights a week. He also complained of persistent numbness and pain at his left lower limb, also on his right lower limb but milder. Such aching and numbness had improved by 50% since the day of the accident. The plaintiff also complained of poor mood with frequent quarrel with family. But he admitted that he was able to handle activities of daily living and travel independently. 68.Physical examination recorded that he appeared to the experts to be standing in a stooping forward gait. He could walk in a slow but normal gait unaided. He could half squat and rise with hand support. He could sit without apparent distress for 20 minutes and rise with hand support. 69.X-ray of lumbar spine were taken. There were minimal degenerative changes in the lumbar spine. And the experts had referred to the 3 MRI Reports. 70.It was recorded that the MRIs showed that the plaintiff had mild lumbar spondylosis with marginal osteophytes formation. Both experts agreed that these bony changes were degenerative in origin. 71.The MRIs also showed that L3/4 and L4/5 discs were desiccated with loss of high T2 signals. The experts agreed that these disc changes were due to long-standing degeneration. 72.The MRI also showed that the L3/4 and L4/5 discs had mild focal central posterior disc herniation and posterior annular tear. Dr Lam opined that the disc changes were typically due to wear and tear phenomenon that occurred over the years and not the result of a single lifting event. However, it is still possible that the herniation /annular tear was aggravated by the alleged lifting action. 73.Dr Lam opined that the plaintiff probably had a back pain of soft tissue/paraspinal muscle origin. There was no suggestion of bony damage or neurological deficit. The back pain was probably due to back muscle strain or natural progression of a pre-existing condition. 74.Dr Fu also agreed that the degenerative changes such as desiccation of disc should be mostly pre-existing. But he added that the annular tear and disc prolapse most likely were partly caused by the alleged accident and partly caused by degeneration. He considered that there is no scientific way to apportion the injury between degeneration and the accident. 75.Dr Fu further added that the degenerative changes shown from the X-ray and MRI is very mild degenerative changes. They were common in normal population in the plaintiff’s age. There was no evidence to suggest they were symptomatic in in the plaintiff before the alleged accident. That he could manage heavy manual duties indicates his back condition should be very good before the alleged accident. The accident should have turned the asymptomatic degeneration into symptomatic one. 76.Further, the experts agreed that from the MRI, while the anterior thecal space is mildly narrowed at L3/4 and L4/5 levels, there was no spinal canal, foraminal stenosis cauda equine or exit nerve compression. They agreed that clinically significant radiculopathy is rather unlikely. 77.Dr Lam commented that foraminal stenosis was not report by radiologist and if present, it was a mild one. It was more likely to be caused by degenerative marginal osteophytes, rather than mild focal central posterior disc herniation. Even if it did have impingement on exiting nerve, only the left side L5 and S1 nerve roots would be affected, with symptoms in corresponding dermatome. It would not cause diffuse and bilateral lower limb symptoms. 78.Dr Fu agree that there should not be significant radiculopathy based on the MRI findings. However, as a result of the foraminal stenosis some irritation of the nerve roots that caused some lower limb symptoms was expected. 79.Having referred to the physical findings, Dr Lam opined that the absence of objective signs showed that the pain should be a minor one. And Dr Fu agreed. However, Dr Fu said the plaintiff’s back pain mainly appeared after prolonged walking and exertion. His back condition might change after these kinds of activities. 80.As a remark, the experts’ opinion is not in support of the plaintiff’s claim of severe pain. While Dr Fu do not exclude the possibility, it would depend on the credibility of the evidence of the plaintiff. 81.On working capacity, Dr Lam opined that the plaintiff should be able to continue with his pre-accident work as a construction site plumbing and drainage worker, in a manner comparable with others of his age and general health. He might have residual back symptoms which affect his working efficiency and endurance, but the overall adverse effect upon discharging of duty should be mild. 82.Dr Fu opined that the plaintiff should be marginally able to resume his original work. However, his working efficiency will be significantly reduced. He would have difficulty to lift heavy object, and to have long period of walking and climbing. If this kind of duties could not be waived, he should shift to lighter duties such as security guard or gas station attendant. 83.Even on Dr Fu’s evidence, it was a strong indication that the plaintiff could return to work as a plumber. The difficulty would be on lifting heavy object, as suggested by Dr Fu. Dr Lam agreed that he had residual back symptom and this would be taken into account in assess whether the plaintiff could return to work as a plumber in the construction sites. 84.And on sick leave, Dr Lam considered a sick leave up to 6 months should be the maximum. He said, in principle, sick leaves should be stopped if the condition is static or stable enough. There is no need for the sick leave to be continued to full recovery. He added that, it was common for middle aged workers to continue working with some degree of back pain, in particular when the pain does not have a compensable cause. 85.Dr Fu opines that the sick leave received by the plaintiff is appropriate. He is relying on the assessment of the treating doctor. 86.In the 2nd Report, the expert commented on the surveillance recordings. They have also examined the plaintiff again. 87.On the video, the experts agreed that the plaintiff could walk with a normal gait unaided. He could walk upstairs and downstairs swiftly. There was no apparent restriction in his walking tolerance within the time of recordings. He did not show distress in his back or limb during his ambulatory movement. It was also agreed that he was not shown to involve in strenuous activity or employment activities. 88.Dr Lam opined that after re-examination and the viewing the newly available document and surveillance recording, the plaintiff had a back pain of soft tissue/paraspinal muscle origin. There was no evidence of substantial structural damage or genuine neurological deficit. In full predict practice, such back pain could usually diminish upon conservative treatment. The chronicity and intensity of the present back complaint are out of proportion to an uncomplicated back injury sustained 3 years ago. 89.Dr Fu agreed that some of the plaintiff’s symptoms such as diffuse decreased sensation in both lower limbs could not be explained on clinical ground. He tried to explain that this may be due to his psychiatric condition. As he had not been admitted as an expert to give psychiatric evidence, I can only accept he tried to explain there may be other explanation for the unexplained clinical symptoms. 90.Dr Lam further commented that degeneration is an ongoing process. Even without the alleged incidents or any trauma, the plaintiff’s spine would continue to deteriorate. As an estimate, if he did not have the accident, he would still develop similar back pain before he is aged 50. For apportionment purpose, the accident would contribute to 50% of the plaintiff’s present disability. 91.Dr Fu opines that there is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state. There is no scientific method to calculate when would his current symptom appear if the accident did not happen. Dr Fu estimated that the alleged accident should be considered as having advanced his back pain by an estimated duration of 5 to 8 years. Dr Fu opines that the pre-existing degeneration should contribute 1% of loss of earning capacity and impairment of whole person, which he assessed at paragraph 61 that the plaintiff suffer 10% loss of earning capacity and impairment of the whole person should be 5%. At cross-examination, he has clarified that it means the pre-existing degeneration would account for 10% of the disability after injury. Discussion and Ruling on evidence 92.To begin with, the key issue is the plaintiff’s remaining pain issue. 93.It is the plaintiff case that he has persistent pain. Quite rightly, Mr Wong at the end of his cross examination of the plaintiff, pointed out to him that contrary to his evidence in his first witness statement that he could not sit for long and have to shift around to release his pain, he had been sitting quite naturally and comfortably in court for the whole morning, with no complaint. The only resting time would be the morning break. And the plaintiff responded by saying that he wants to respect the court proceedings. I have great doubt on the genuineness of his answer. 94.By viewing the surveillance video, the plaintiff could walk with normal gait and has not shown any discomfort. This is also the opinion of the two experts in the 2nd Report. This again contradict the plaintiff’s assertion that after walking for a while, he would feel pain at his waist and left foot and have to sit down for a rest. When being cross-examined on this, the plaintiff tried to explain that he had good days and bad days. And when he had to help doing cleaning at home, he would feel painful and that would be for the whole day. While Dr Fu also agree that patient could have good days and bad days, this has not been so stated in the witness statement of the plaintiff. The plaintiff is painting a picture that he had pain and therefore he did not go out for activity and stayed at home. The explanation of the plaintiff in his evidence shows exaggeration. Further to my comments above on his evidence, I found that his evidence on the seriousness of his pain is not credible. 95.Further, there is no objective sign in this case to show the element of pain. It is sufficient for me to say that there is no medical finding objectively to support the plaintiff’s claim of the persistent pain. And it is sufficient to add that the records by treating doctors as hereinbefore mentioned show that the plaintiff manage better mobility and flexibility then what he said before the first examination by the experts in August 2018. This further discredit his evidence on his pain and disability. 96.The treatment that the plaintiff sought from two private doctors are highly suspicious. It is admitted that the first doctor, Dr Yen had only prescribed medicine for 7 days. On subsequent consultation, only sick leave had been prescribed. If the plaintiff was looking for treatment, and that he was eager to return to work, it was just reasonable that when he had no improvement after the second visit, he would start to consult some other doctors. The suggestion that he needs the advice on how to do some physiotherapy exercise is not believable, as he have a series of treatment at the physiotherapy department of Kwong Wah Hospital. I believe there is great force in the submission of Mr Wong that the plaintiff visited these 2 private doctors purely for the purpose of obtaining sickness certificates. And for the second doctor, he had been giving sick leave after the first visit but for a period of time before the second consultation. I found that the sickness certificates from these 2 doctors have no evidential value to support the claim that the plaintiff could not work with those periods. 97.Ms Lau has helpfully prepared a table showing the issues and the different view of the experts as follow, and I added my analysis –
98.On the psychiatric condition of the plaintiff, no medical expert report has been adduced. Parties rely on the treating doctor’s report. I refer to the medical report from Yung Fung Shee Psychiatric Centre dated 9 October 2019. It is recorded that the plaintiff was all along mentally well until 20 September 2017 when he sustained this accident. He started to seek psychiatric treatment at Yung Fung Shee Psychiatric Centre on 2 January 2019. His psychiatric diagnosis was adjustment disorder. He was treated with 2 kinds of medicine and clinical improvement was noted after treatment. No sick leave certificate had been given. 99.It was also recorded that the prognosis was good. I accept the view of the treating doctor that adjustment disorder rarely inflicted permanent impairment on vocational capacity. There is no suggestion that his psychiatric condition affected his working capacity. The adjustment disorder would be taken into account in assess his loss including PSLA. PSLA 100.Mr Wong submits the award should be $120,000. I do not repeat the cases set out in paragraph 41 to 47 of his opening submission, which I have considered. The main argument of Mr Wong is that the pre-existing condition of the plaintiff should account for 50% of his condition, and he would have reached the present state anyway when he reached the age of 50, (as opined by Dr Lam), 14 months from the accident. 101.Ms Lau submits that the award should be $350,000. I do not repeat the cases referred to in her written submission, which I have considered. But clearly, some of the plaintiff’s condition is due to his degenerative pre-conditions. Ms Lau also relies on the opinion of Dr Fu that the degeneration is mild. There is no evidence to suggest they are symptomatic in him before the accident. The accident should have turned the asymptomatic degeneration into symptomatic one. 102.As commented above, the plaintiff has exaggerated his pain. I have to discount some findings of the experts as they are relying on the reaction of the plaintiff at the assessment and his information. 103.Having considered all the factors, I found that a reasonable award should be $250,000 before considering the pre-existing degeneration issue, but having taking into account his psychiatric condition and treatment aforesaid. 104.The effect of a relevant pre-existing condition has been considered by DHCJ Marlene Ng (as she then was) in Chan Shek Ho v Shiu Ho-Chi and others HCPI 613/2014. I quote –
105.There is no disagreement between the experts that the plaintiff has pre-existing degeneration. The issue is how worse is his back condition before the accident and the apportionment of his condition to the accident. 106.Dr Lam record in the 1st joint report at paragraph 45 that “based on [the plaintiff’s] description, he had back pain during ordinary work, with no particular element of injury. The pain was probably due to back muscle strain or natural progression of a pre-existing condition.” He added in the 2nd joint report that it would imply that his back was in a rather vulnerable status prior to the alleged accident. He also opines that there is a strong possibility that some other event or natural progress of the condition would have brought about the present condition. Dr Lam said the plaintiff would develop similar back pain before he is aged 50 even if he did not have the accident. He apportioned 50% of the disability to pre-existing condition. 107.Dr Fu also agree in the 2nd report that some other event or natural progress of the condition would have brought about the present condition. He is of the view that the accident has advanced the plaintiff’s back pain by 5-8 years. He said there is no scientific method to calculate when will his symptoms appears if the alleged accident did not have happened. The pre-existing degeneration should contribute 1% of the earning capacity which represent 10% of the overall disability of the plaintiff. 108.I believe there is no dispute that the plaintiff did not suffered from any external element of injury. He felt the pain when he was to take up the screw rods. As degeneration would not worsen suddenly, the suggestion that he was asymptomatic before the accident is not believable. Having considered the reasoning of Dr Lam, I agree with his analysis that the back pain at work with no injury is a strong indicator of his back was in a vulnerable status just before the accident. While the defendant would still be liable for the loss, the disability caused by degeneration should not be accounted for. 109.The interpretation of the plaintiff’s back condition by Dr Lam is a better explanation of his condition. Yet I consider his apportionment of 50% is on the high side. Taking all into account, an apportionment of 30% to the pre-existing injury is reasonable. 110.Accordingly, the award for PSLA should be reduced by 30% and I therefore award $175,000. Pre-trial Loss of Earnings 111.The pre-accident earning of the plaintiff is agreed at HK$46,883 per month plus MPF. 112.The plaintiff has sick leave from 20 September 2017 to 20 November 2018 from Kwong Wah Hospital, and from 21 November 2018 to 24 June 2019 from Dr Yen, and from 28 June 2019 to 21 October 2019 from Dr Poon and intermittently up to 8 March 2021. 113.The plaintiff resumed work on 17 October 2019 as a security guard. Two issues for determination. Firstly, when the plaintiff should be physically capable to resume some form of work. Secondly, what work he could undertake then, and now. 114.The sick leave certificates are not binding on this Court to found that the plaintiff cannot work during the period. As I analysed above, I pay no weight to the sick leave certificate given by Dr Yen and Dr Poon. 115.Dr Fu endorsed all the sick leave certificate. I do not accept his reason to endorse the decision of the treating doctor. While the treating doctor may have their reason in giving sick leave, the experts are expected to consider the physical condition of the plaintiff again to see if the plaintiff cannot work during those period, and not only whether sick leave certificate should be given. I do not accept the evidence of Dr Fu. 116.Dr Lam opines that 6 months of sick leave would be sufficient. And the sick leave should be stopped when the condition is static or stable enough. There is no need for the sick leave to continue until full recovery. I agree with the opinion of Dr Lam. 117.Yet taking into account that the plaintiff was still receiving treatment after 6 months, and according to the record of Kwong Wah Hospital, the condition of the plaintiff was static after the 3rd MRI in August 2018. I found that the sick leave should end in early August 2018. And a period of 2-3 months would be allowed for the plaintiff to look for new job. According, I found the period of total loss of earning shall end on 31 October 2018. 118.The first period of pre-trial loss is from date of accident, 20 September 2017 to 31 October 2018, and I would allow full loss, i.e. $(46,883+$1,500) x 13 months 10 days = $645,106.67. 119.The more difficult part is whether the plaintiff could return to his pre-accident work. The burden is on the plaintiff to demonstrate that he would be unable to resume his pre-accident employment (per DHCJ Anson Wong SC in his judgment given on 26 May 2020 in Rai Surya Prakash v Pacific Crown Security Services Limited and Anr [2020]HKCFI). And as commented by Au-Yeung J in Pak Siu Hin Simon v J V Fitness Limited (unreported, HCPI 574/2014, 15.5.2017), “the fact that the plaintiff suffered pain did not mean that he would be entitled to sick leave. People may suffer pain for all sorts of reason and that would not prevent them from discharging their duties in full. Employees do not go to work only when they are 100% fit and efficient.” I agree entirely. 120.The plaintiff said he could not carry heavy objects and could not return to work as a plumber in the construction site. Dr Fu partly supports his claim saying that he may not be able to carry heavy objects. And Dr Lam said he could return to work with some adjustment. 121.But Dr Fu’s opinion is based on the complaint of the plaintiff of his pain, which I have found that I do not believe he suffered the severe pain as he claimed. There is no elaboration by Dr Fu that, orthopaedically, what other reason why the plaintiff could not return to work. 122.Having considered all the evidence from the plaintiff, I do not believe his evidence that his pain and disability is so serious that he could not return to work in his pre-accident job. Having considered all evidence and the opinion of the experts, I rule that the plaintiff should be able to return to work in the construction site with mild reduction of working capacity as opined by Dr Lam. Accordingly, he pre-trial loss would end with 31 October 2018. And his reduction in working capacity could be covered by the award of loss of earning capacity which I shall come to later. I agree with the judgment of Bharwaney J given in Gurung Bhakta Bahadur v Green Valley Landfill Limited (unreported, HCPI 333/2009, 28 January 2011) when His Lordship found that the plaintiff could return to work with reduced capacity as his ability to carry and lift heavy loads was compromised, this might impact on his future earning capacity. This is a classic case for an award of damages for loss of earning capacity. 123.I have to consider the issue of apportionment again. I accept that there is no scientific method to accurately assess when the plaintiff would be in his current condition without the accident. When both experts agree that some incidence would trigger the current condition, the older the plaintiff, the higher the chance that he would get injured. Dr Lam suggested 2 years from accident, or when he was 50. Dr Fu suggest that the accident has advance the condition by 5-8 years. The plaintiff was 48 at the time of the accident, that means he could work until 53 or 55 according to Dr Fu before the current condition must occur to the plaintiff. Doing the best, it is reasonable to assess a period of 5 years from date of accident, when he would be aged 53, when he would reach the current state in any event, even without this accident. 124.As only 13 months’ loss is allowed, and it is still in the early stage of his degenerative changes. No apportionment should be allowed as the chance of injury would still be low during this period. Post-Trial Loss and Loss of Earning Capacity 125.There would be no post trial loss as the plaintiff should be able to return to work after 31 October 2018. The major argument for his future loss would be for his loss of earning capacity. 126.On loss of earning capacity, the plaintiff claims a sum of $120,000 in the Revised Statement of Damages and now claim $200,000. Mr Wong objects on the basis that the plaintiff is bound by his pleadings. 127.Ms Lau said this Court is not bound by the figure pleaded by the plaintiff and it is able to exercise its discretion to come to a fair and reasonable award. She refers to the judgment of DHCJ Anson Wong SC given in Rai Surya Prakash’s case which I have referred to early. I have to read further on this novel point. 128.I believe parties are bound by their own pleadings. Is Statement of Damages part of the pleadings? I believe so. First, it is usually referred to in the Statement of Claim as to set out the loss and damages. I accept that part of the Statement of Damages would be repetition of evidence, including medical evidence. But the whole purpose of the Statement of Damages is to give the other parties a clear picture of the claim that he is facing. I see no reason why the plaintiff is not bound by the pleadings. 129.Having say that, I am prepared to consider an award over $120,000. The claim by the plaintiff at that stage is based on loss of future earnings being allowed. But similar to the case of Rai Surya, the plaintiff’s future loss of earnings has been disallowed. Yet there is an element in the future loss that I have to assess, namely, his residual pain and modification to work as suggested by Dr Lam. As I have said earlier on, this is to be consider in the claim of loss of future earnings. Hence, when I am considering what is fair and reasonable for the loss of earning capacity, I am looking at 2 heads of claim. 130.I only need to refer to paragraph 77 of the judgment of DHCJ Anson Wong when he allowed a larger sum for loss of earning capacity after rejecting the plaintiff’s claim for future loss of earnings. I agree with the able judgment. And the defendant would not be taken by surprise and no amendment is indeed necessary in such circumstances. And if necessary, I would entertain the late application by the plaintiff for amendment. 131.Having consider the submission, I agree that a sum of $200,000, about 4 months’ salary is a reasonable sum for loss of earning capacity. And I found that the sum should be apportioned to take into account the pre-existing degeneration. Hence the award is reduced to $140,000. Special Damage 132.Mr Cheung claims for medical expenses amounting to $31,814 and a table has been set out in the Hearing Bundle. The first part includes the expenses at Hospital Authority, the charges of Dr Yen and Dr Poon. The second part includes other medical expenses, mainly for Chinese bone setters. 133.The plaintiff also claims travelling allowance at $3,000 and tonic food at $5,000. 134.Mr Wong submits that a lot of medical expenses were spent on unnecessary medical consultation which did not result in improvement and as a result of the plaintiff’s exaggeration of his condition. Some expenses were incurred for his degeneration condition. Further, in the first joint report, the plaintiff reach maximum medical improvement. The defendant argues that all expense incurred after the first report shall be disallowed. 135.I agree with Mr Wong that there is no evidence to support the need to have Chinese bone setters’ treatment. Accordingly, those charges are not allowed. 136.As I have doubt on the treatment by Dr Yen and Dr Poon, I am not satisfied that they are related to the injuries and their charges are not allowed. 137.Knowing that the plaintiff reached maximum medical improvement in August 2018, it is not correct to assume that he does not require any form of follow up treatment. I would allow all the charges by Hospital Authority, including his psychiatric treatment. 138.I allow the claim of $3,000 as travelling expenses and $5,000 for tonic food. In conclusion, I allowed $4,324 + $3,000 + $5,000 = $12,324. 139.Summaries –
Interest 140.I award interest on general damages for PSLA at 2% per annum from the date of service of the writ up to the date of judgment, and interest on pre-trial loss of earnings and other special damages at 4% per annum from the date of the Accident to the date of payment of employee’s compensation, and thereafter on the remaining balance, after the deduction of employee’s compensation, up to the date of judgment. 141.And on costs, the plaintiff should be entitled to costs. As the award is within the District Court jurisdiction, the costs should be taxed according to District Court scale. I therefore grant an order nisi that the plaintiff do have costs of the assessment to be taxed if not agreed. There be certificate for counsel. As Legal Aid certificate has been discharged before the assessment, I do not have to give direction on Legal Aid taxation.
B Mak & Co, for Plaintiff Deacons, for 1st and 2nd Defendant [1] ie the tortfeasor is only responsible for the extent to which he has worsened the victim’s condition | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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