Yuen Cheuk Ping v. Dragages Hong Kong Ltd

HCPI 239/2020

[2021] HKCFI 3869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 239 OF 2020

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Before:  Hon Anthony Chan J in Court

Date of Hearing:  13 and 14 December 2021

Date of Judgment:  30 December 2021

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JUDGMENT

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1.This is a personal injuries action. The Plaintiff was an electrician employed by the Defendant to work at a construction site situated at the Liantang Boundary Control Point, Wo Hang, Sha Tau Kok Road, New Territories (“Site”). On 6 July 2017 at around 8:30 am, according to the Plaintiff he slipped and fell on a fenced platform (“Platform”) inside a tunnel at the Site, and sustained injuries (“Accident”).

Issues

2.The issues in this action are confined.  The Defendant does not dispute liability for the Accident, subject to the issue of contributory negligence, ie, it says that the Plaintiff was partly to blame for the Accident.

3.On quantum of damages, the Defendant’s position is that the Plaintiff’s claims for (a) pre-trial loss of earnings and (b) future loss of earnings are grossly inflated and plainly inconsistent with the agreed expert orthopaedic opinion that he should be able to return to his pre-accident job as a construction site electrician, albeit with some decrease in endurance.

4.General damage for pain suffering and loss of amenities is agreed at HKD500,000.  The applicable multiplier for future loss of earnings is agreed at 14.17 (based on the retirement age of 65), subject to the Defendant’s contention that more likely than not the Plaintiff will only be able to work to 60 given the pre-existing degenerative changes in his lumbar spine, pelvis and knees.  The only item of special damage not agreed is the claim for tonic food of HKD5,000.  The Defendant is agreeable to a smaller sum of HKD2,000.  

The Accident

5.At the time of the Accident, the Plaintiff and a colleague were assigned to connect the power cord on a concrete mixer located on the elevated Platform, which was about 5-6 m from the bottom of the tunnel. The Platform was surrounded by a metal fence about 1 m in height.  The access to the Platform was by means of a ladder (“Ladder”).  The Ladder was integrated in (and formed part of) a cylindrical metal frame erected immediately next to the Platform.  The Plaintiff was able to climb up to the Platform from the bottom of the tunnel inside the metal frame.  Apparently, the design of the metal frame was to protect the users from falling off the Ladder.  

6.According to the Plaintiff’s witness statement, which he adopted as his evidence in-chief, after he had climbed to the top of the Ladder (the top rung of which was a little higher than the top of the fence[1]) he stepped onto the top of the fence with his right foot whilst holding onto the side rails of the Ladder.  In the course of moving his left foot onto the top of the fence, the Plaintiff lost the foothold on the right side, lost his balance and fell onto the Platform landing first with his right foot. 

7.The Plaintiff gave evidence (he was the only witness at the trial) and was cross-examined.  I do not find him to be a reliable witness.  He was 47 years old and appeared to be a fit man.  Despite his relatively modest education (up to Form 5), he had a clever mind and was well prepared for the cross-examination.  With three exceptions, he invariably offered an explanation for the inconsistencies between his witness statement and his viva voce evidence, and for any omission in his witness statement.  However, more often than not such explanations served to demonstrate that the Plaintiff was shifting or trying to improve his evidence.

8.One notable example was that the Plaintiff said in his viva voce evidence that a bag which he was carrying with him at the time of the Accident was weighing 10-20 kg and it would have hindered him from jumping onto the Platform.  However, in his detailed witness statement, the bag as described as containing “some light tools”.  There was no suggestion that it was a hindrance in any way.  Further, in re-examination, the Plaintiff was invited to recount what was in the bag and he came up with a plethora of tools.  I have the clear impression that the Plaintiff was trying to justify the weight of 20 kg whilst knowing that there was no witness to contradict what he was saying.  Neither the described tools nor the alleged weight of 10-20 kg fit the description of “some light tools”.  In a report of the Occupational Therapy Department of Nethersole Hospital dated 19 September 2018, the Plaintiff was recorded to have reported that one of his job tasks was “carrying material or hand tools (5-10kg) to worksite”. 

9.Another example of inconsistency is the Plaintiff’s attempt to correct his witness statement on when he started to look for work after the Accident.  It is clear from paras 47, 49 and 50 of his witness statement that he only started to look for work after expiration of all the sick leave, namely, in February 2020.  Indeed, he stated clear that he was unable to work during the entirety of the sick leave period.  However, in his evidence in-chief, the Plaintiff said that he started to look for work in September or October 2019.  I am inclined to agree with Ms Seto, who appeared for the Defendant, that the Plaintiff tried to change his evidence in light of the Joint Orthopaedic Report (“Report”) that he was fit to return to work in July 2019.  The Plaintiff was unable to offer any explanation for the inconsistency. 

10.On how the Accident occurred, the Defendant’s case is limited by the lack of any witness to the Accident.  However, based on the Plaintiff’s evidence, I agree with Ms Seto that the preponderance of probabilities is that at the time of the Accident the Plaintiff was actually standing on top of the fence with both feet and was facing the Platform.  From there, he jumped onto the Platform but landed poorly on his right foot and fell.  Unless that was the case, I fail to see why the sketch, Annex 3 to the Plaintiff’s witness statement, would show that he was standing with both feet on top of the fence and holding onto the rails with his hands. 

11.I am unable to accept the Plaintiff’s explanation that he in fact intended to turn round at the top of the fence and climb down (with his back to the Platform) onto the Platform using the Ladder. As he demonstrated in court, it would have been a cumbersome exercise to turn round at the top of the fence.  He said that he had made an assessment of the situation in his head, and based on that assessment as well as his experience, he had chosen to turn round and climb down.  Aside from the absence of any mention of that assessment exercise, the suggestion is too good to be believable, bearing in mind especially that (a) the fence was only 1 m high and the Plaintiff accepted that it was not much of a height to jump and (b) such jumping by workers was commonplace in a construction site.  At the time of the Accident, the Plaintiff was 43 years old and undoubtedly a fit man. 

Contributory Negligence

12.However, I do not believe that a finding that the Plaintiff had jumped off from the top of the fence would be sufficient to ground a finding of contributory negligence on his part. 

13.I bear in mind the principles adumbrated in Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd, unrep, CACV 145/2010, 22 July 2011, §§10, 11 and 52.  The gravamen of the Plaintiff’s complaint on liability is the lack of an opening to the Platform from the Ladder.  Liability is not disputed.  The fact that a worker might jump from the top of the fence was a hazard reasonably foreseeable by the Defendant.  The law does not permit the reduction of its liability in failing to provide a safe access for the employees in such circumstances.  Nor, bearing in mind the realities of working in a construction site, can it be said that choosing to jump onto the Platform was sufficiently blameworthy to merit the reduction of compensation to the Plaintiff.

The Injuries and treatments

14.After the Accident, the Plaintiff attended the A&E of North District Hospital.  X-ray revealed fracture of right calcaneum (heel bone).  He was admitted to the Orthopaedics & Traumatolgy Department (“OTD”).

15.On 12 July 2017, the Plaintiff underwent closed reduction and fixation of the fracture (screw fixation to right tarsal).  He was discharged the next day with analgesics and a short leg cast, which was removed on 27 July 2017.  He was given training for non-weight bearing mobilization exercise and attended regular follow up.

16.According to an OTD report dated 18 October 2018, wound healing was noted about 2 weeks after operation.  The Plaintiff reported low back pain since discharge.  Clinically, there was no lower limb neurological deficits.  X-ray of lumbar spine showed spondylotic changes with no fracture.  At 2 months after the operation, the Plaintiff noticed some impingement and pain over the lateral heel cord insertion, as well as decrease in sensation over the 4th and 5th toes.  These symptoms persisted despite further ankle mobilization and strengthening exercises.  At 7 months after the operation, x-ray showed fracture union.  After discussion, the Plaintiff accepted the proposal of ankle and subtalar joint arthroscopy for further assessment and evaluation of the cause of his symptoms.

17.On 18 April 2018, the Plaintiff was assessed by Dr Tio, a private orthopaedic specialist.  He was found to be walking with a limping gait, and had slight wasting of the right calf muscle.  The range of motion of the right ankle was decreased.  X-ray examination of the lumbar spine and pelvis revealed diffuse mild degree of degenerative changes.  Early osteoarthritis was found in both knees (not found by Dr Tio) by Dr Ching, a specialist in radiology.

18.On 6 June 2018, the arthroscopy was performed.  Osteophytes and scar tissue were removed.  Analgesics were prescribed and the Plaintiff was instructed on non-weight bearing walking for 2 weeks.  He was discharged on the next day and was regularly reviewed in the specialist outpatient clinic.  He was also referred for physiotherapy for further rehabilitation.  His symptoms had improved by August 2018.

19.Between 25 July 2017 and 4 June 2018, the Plaintiff attended 43 sessions of physiotherapy.  From 10 July 2018, he had another course of 42 sessions of physiotherapy up to 27 May 2019 (the available physiotherapy report only covered the period up to 19 September 2018 during which 16 sessions were attended by the Plaintiff).

20.From 24 April 2018, the Plaintiff also had occupational therapy.  At the work capacity evaluation was on 12 September 2018, the Plaintiff demonstrated insufficient work strength, insufficient tolerance for climbing and inability to perform crouching or crawling position in performing essential job tasks in job simulation.  Work capacity and job demands did not match and there was significant degree of limitation.  He was recommended to undertake a course of work hardening training.  The Plaintiff claimed that he attended a total of 95 sessions of occupational therapy up to 26 April 2019 (the available OT report only recorded 20 sessions up to 28 August 2018).

21.In February 2019, the Plaintiff was referred by OTD to the Department of Psychiatry of Prince of Wales Hospital for depressive symptoms.  He reported that his mood became low since late 2017 due to the slow recovery progress.  He had become more irritable and developed a sense of uselessness.  He experienced problems with sleeping, mainly insomnia and sleep fragmentation.  He had vague ideations of passive death wish in early 2018.  He was diagnosed to have suffered from a moderate depressive episode.  Medication and counselling were prescribed. 

22.According to the Plaintiff’s witness statement dated 18 March 2021 (no relevant update was offered in his evidence), his next follow up at the OTD was on 10 May 2021 and at the Department of Psychiatry on 12 April 2021.

23.The Report was prepared jointly by Dr Chiang and Dr Tsoi, who were instructed by the Plaintiff and Defendant respectively.  It was dated 3 October 2019 and was compiled after a joint examination of the Plaintiff on 9 July 2019.

24.Physical examination by the orthopaedic experts showed normal alignment of the right ankle and low back.  X-ray examination of the right ankle showed that the subtalar joint was preserved except for sclerotic changes over the superior articular surface of the calcaneum.  No obvious narrowing of the subtalar joint space was noted.  There was mild degenerative changes over the medial side of the tibiotalar joint.  X-ray examination of the lumbar spine showed mild degenerative changes with marginal osteophytosis at multiple levels of the lumbar spine.

25.The results of the Waddell’s simulation tests in shoulder compression, pelvic rotation and arm swing were mildly positive, suggesting the possibility of mild overemphasis of symptoms could not be excluded. 

26.Both experts were in agreement on the following material findings :

(1)  The Plaintiff suffered a comminuted (in several fragments) intra-articular (with extension into the adjacent subtalar joint) fracture of the right calcaneum and soft tissue injury of the low back.  The injuries were compatible with the mode of injury described by the Plaintiff.

(2)  The Plaintiff had multiple levels of mild degenerative changes in the lumbar spine, which should be present well before the Accident.  It was noted that the presence of a mild decrease in the Plaintiff’s endurance in performing prolonged and continuous heavy manual work activities or heavy lifting or prolonged staying in stressful back postures could not be excluded.  Such pre-existing degenerative changes in the lumbar spine fell between the 1^st and 2^nd categories (see Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 at 963E-F).  Onset of symptoms from the degenerative spine might occur in about 5-10 years.

(3)  For the right calcaneal fracture, the Plaintiff had made a reasonably satisfactory overall recovery, with reasonably preserved range of movement in the right ankle and subtalar joint and reasonably satisfactory preveration of the muscle bulk of the right thigh and calf.  He was likely able to perform on and off heavy lifting and other heavy manual activities, although there would likely be a decrease in the end range endurance when performing such activities.  His capacity in performing more than a short duration of continuous walking on uneven ground or climbing up and down ladders would likely be moderately reduced. 

(4)  The low back injury had also acquired a satisfactory recovery, with mild residual disabilities confined to a slight decrease in the end range endurance when performing prolonged and continuous heavy manual activities.

(5)  By “gross estimate”, there was about 20% chance of late future post-traumatic arthritic changes in the subtalar joint.

(6)  Based on the Plaintiff’s description of his pre-accident work activities, he should be able to return to his pre-accident job as a construction site electrician, but there would likely be some decrease in endurance in employment which required prolonged and continuous walking and standing as well as frequent ladder climbing.  He would require some on and off rest time, ie, a less busy work environment.

(7)  The Plaintiff’s sick leave could end on 11 July 2019 (end date of his then existing sick leave) given that he had reached maximal medical improvement for his injuries.  Dr Tsoi took the view that further sick leave would have no “orthopaedic therapeutic value”.

27.There is also a Joint Psychiatric Report prepared by Dr Chiu (instructed by the Plaintiff) and Dr Chung (instructed by the Defendant) dated 20 March 2020.  A  joint examination of the Plaintiff was conducted on 28 February 2020.

28.The psychiatrists agreed that the Plaintiff suffered from a single episode of Major Depressive Disorder, which was caused by the Accident.  The prognosis was favourable.  The degree of permanent disability of the whole person and impairment to earning capacity was mild. 

29.The experts differed mainly on :

(1)  The Plaintiff’s fitness to return to his pre-accident job.  Dr Chiu opined that “it is difficult to tell” if he could do so on the ground that the main hindrance lied with the “physical perspective”, whereas Dr Chung took the view that he was mentally fit to return to his pre-accident job and persist at it.

(2)  Sick leave entitlement.  Dr Chiu opined that from the psychiatric perspective sick leave should be granted for about 2 years from December 2017 (ie, up to December 2019), whereas Dr Chung was of the view that sick leave for 3 months after the commencement of psychiatric treatment (ie, up to May 2019) was reasonable.

30.I note that the experts also differed on the issue of future treatment.  However, there is no claim for future medical expenses and it is not necessary to resolve the difference in this regard.

Pre-accident and post-accident earnings

31.At the time of the Accident, the Plaintiff had a basic monthly salary of HKD23,680, based on 216 hours of work per month (an average of 9 hours each day from Monday to Friday and on alternate Saturday). He was also entitled to various allowances, including rest day allowance; statutory holiday allowance; overtime allowance; shift/tunnel allowance; safety bonus; KPI bonus and Chinese New Year bonus equivalent to the basic salary for one month.  The Plaintiff’s average gross income was HKD44,281.  The same figure has been agreed as the current monthly income of the Plaintiff’s pre-accident occupation.

32.According to the Plaintiff, between February and August 2020, he had made various attempts to seek alternative employment but without success.  On 24 August 2020, he found a job with San Miguel Brewery HK Ltd as an electrical technician with a monthly income of HKD16,500 plus overtime allowance.  However, due to long working hours and his residual disability, the Plaintiff could not continue with the employment.  He resigned on 28 August 2020. He earned a total sum of HKD3,128.79 from that employment.

33.Since 21 October 2020, the Plaintiff had been employed by Shun Hing Electric Service Centre Ltd as a technician, with a monthly salary of HKD16,510.  His average monthly income was HKD17,613.  From October 2021, the average income was increased to HKD17,953.

Ability to resume pre-accident occupation

34.The Plaintiff’s own psychiatrist was of the view that the main inhibition (if any) to his ability to return to the work of a construction site electrician was his physical condition. 

35.The most important medical evidence on this issue is the Report.  It was no doubt prepared to assist the court for the present purpose.  The matters covered in the Report were explored with the benefit of expertise from both sides and a joint examination of the Plaintiff. Quite clearly, the experts’ judgment was that the Plaintiff was able to resume his pre-accident occupation, albeit with the likelihood of some decrease in endurance.  Guided by the Report, I do not believe that the Plaintiff would be able to perform the same amount of overtime work he did at the time of the Accident. 

36.In his evidence, the Plaintiff said that the pain and movement restriction in his right ankle would not allow him to return to work at a construction site.  He also said that there was no less demanding job available for a construction site electrician, which would allow on and off rest time.  However, he had never tried to look for any work in a construction site after the Accident.  He said that he knew that there was no suitable job based on his experience in the trade for over 10 years.  In fact, he joined the trade in 2012, and therefore had only 5 years of experience in the same.

37.I do not believe that it is right to prefer the Plaintiff’s own assessment of his work ability over that of his orthopaedic expert.  Although the facture suffered by the Plaintiff involved the subtalar joint, it was predominantly a heel bone fracture which had healed reasonably well.  The range of movement in the right ankle was satisfactory.  The functionality of the right lower limbs had been reasonably preserved.  The Plaintiff’s reluctance to even try to return to his pre-accident job and his failure to look for work until no earlier than February 2020 are consistent with the suggestion of mild overemphasis of symptoms noted in the Report.

38.The Plaintiff accepted in evidence that he was fit to return to work in July 2019 (whilst maintaining that he could not do the job of a construction site electrician).  On the evidence before the court, I believe that Dr Chiu’s view on sick leave was over generous. 

39.In the premises, I find that the Plaintiff was fit to return to his pre-accident occupation since the 12 July 2019.     

40.I bear in mind the likelihood of reduced endurance in the Plaintiff’s physical ability.  However, I do not believe that his unsupported suggestion that there was no suitable opening for him as a construction site electrician is reliable.  Regrettably, there is no other evidence before the court in this regard.  I am unable to accept the submission of Ms Leong, who appeared for the Plaintiff, that the blame was on the Defendant because it is a major contractor in the construction industry and the relevant evidence could easily be produced by it.  The Plaintiff has a burden to prove his case, and he must be alive to the evidence contained in the Report and be prepared to deal with it. 

41.Ms Leong had advanced an alternative case based on a finding that the Plaintiff was able to return to his pre-accident occupation.  It was submitted that the Plaintiff would only be able to earn a little over half of his average pre-accident income of HKD44,281 per month, namely, HKD23,680.  The sum of HKD23,680 represented the basic monthly salary earned by the Plaintiff at the time of the Accident.  There is force in Ms Seto’s submission that Ms Leong’s approach in ignoring all the allowances which made up the pre-accident income is flawed, eg, there is no reason not to count the Chinese New Year bonus. 

42.Hong Kong has generally been quite fortunate in terms of its employment situation.  There is no sufficient reason to believe that the Plaintiff would not be able to find a less demanding job as a constructive site electrician, eg, by not working the same amount of overtime as he used to. 

43.Despite the unsatisfactory state of the evidence, the court must do what it can in the interest of justice.  For purposes of assessing the loss of earnings of the Plaintiff, I hold that the Plaintiff, with likelihood of reduced endurance, would have been able to earn HKD31,000 (about 70% of HKD44,281) as a construction site electrician. However, I agree with Ms Leong that a reasonable period of time should be allowed for the Plaintiff to look for a suitable position.  I believe that 2 months would be reasonable. 

44.In the premises, I find that the Plaintiff would have been able to earn HKD31,000 from 12 September 2019.

Retirement age and loss of earning

45.The Defendant contended that the Plaintiff would not be able to work until 65 given the degenerative changes in his spine[2]. I do not find the evidence in the Report sufficiently firm to justify a reduction in the retirement age for the assessment of loss of earnings.  The onset of symptoms noted by the experts may well be gradual and not necessarily affect the Plaintiff to the extent of early retirement. 

46.I allow the claim for loss of earning capacity of HKD200,000 in light of the issue with the subtalar joint and the chances of development of post-traumatic arthritic changes stated in the Report. 

Tonic food

47.In light of the lack of documentary support, I allow HKD3,000 for this claim.

Disposition

48.The parties had agreed that their solicitors would work out the calculations of damages based on the findings of this court. Judgment in favour of the Plaintiff shall be given on the damages.  I also make the usual interest award.  An agreed draft judgment should be provided to the court for approval within 14 days from the date of this Judgment.  I make an order nisi that the costs of this action be paid by the Defendant, to be taxed if not agreed.  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

49.Last but not least, I am grateful to counsel for their assistance.

Ms Susanna Leong, instructed by Cheung, Chan & Chung, for the Plaintiff

Ms Kay Seto, instructed by Norton Rose Fulbright Hong Kong, for the Defendant