Yip Chi Keung v. Ming Tai Construction Engineering Co Ltd and Another

HCPI 272/2019

[2022] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 272 OF 2019

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

A.  Introduction

1.This is the trial of the personal injuries claim brought by the plaintiff (“P”)  against his employer (“D1”)  and the main contractor (“D2”, together with D1, “Ds”)  of the construction site of 810B located at High Speed Rail Station at 38 Austin Road West, Kowloon, Hong Kong (the “Construction Site”).  D1 was a sub-contractor of D2 at the Construction Site.

2.Mr Kenny Lin appeared for P.  Mr Simon Wong appeared for Ds.

B.  P and the Accident

3.P was a scaffolder.  He was born in October 1970. 

4.On 3 August 2016, P was under the employ of D1.  While working at the Construction Site and in the course of employment, P had an accident (the “Accident”). He was installing the iron framework by holding a long iron tube of about 3 meters long to hook up the upper framework.  He slipped.  He lost balance and fell.  He sustained injuries to his left shoulder and left elbow (the “Injuries”).

5.On the day after the Accident, P attended a registered Chinese medicine practitioner.  The diagnosis was left shoulder tendon and left elbow tendon injuries[1].  On 5 August 2016, P attended the Department of Accident and Emergency (“A&E”)  of Alice Ho Mui Ling Nethersole Hospital(“AHNH”).  Diagnosis was left shoulder sprain.  Physical examination of P’s left shoulder was unremarkable with near-normal active range of motion and no effusion, and X-ray examination showed no fracture[2]. I will set out below some further history of P’s Injuries below. 

C.  Agreed matters between the parties

6.Ds have admitted liability to the extent of 85%.  Judgment on liability to that extent has been entered by consent.

7.The remaining issues concern quantum. 

8.In the course of his opening, Mr Lin informed this court that parties have reached consensus on P’s pre-accident monthly income.  The agreed amount is HK$28,600, calculated on the basis of HK$1,300 per day and 22 days of work per month.

D.  The differences between the parties

9.According to his Re-revised Statement of Damages (“RRSoD”), P’s claim is for HK$6,166,007.40.  That total sum is made up of the following items:

(a)  Pain, suffering and loss of amenities (“PSLA”)  in the sum of HK$350,000;

(b)  Pre-trial loss of earnings and MPF of HK$1,810,972.60, calculated as follows:

(i)  25.1 months of full loss of earnings (from date of the Accident to 6 September 2018 when he started to work as a security guard), on the basis of pre-accident monthly earning of HK$33,800; and

(ii)  partial loss of earnings since 6 September 2018 till trial (September 2021 being taken as the notional date of the trial);

(c)  Post-trial loss of earnings and MPF of HK$3,661,534.80, calculated:

(i)  on the basis that P will only be able to earn HK$10,000 in the future post-trial; and

(ii)  upon the adoption of 12.21 as the multiplier;

(d)  Future medical expenses in the total sum of HK$120,000;

(e)  Loss of earning capacity in the sum of HK$180,000; and

(f)  Other special damages in the total sum of HK$43,500.

10.Ds challenge the seriousness of P’s injuries and the state of his recovery.  They say P only suffered from a simple sprained left shoulder and left elbow, and the injury had acquired satisfactory recovery by the end of 2016 or early 2017.  P’s frozen shoulder discovered in the 3^rd MRI performed on 16 December 2019 is unrelated to and not caused by the Accident.  The sick leave period should only be up to March or April 2017.  P’s injury arising from the Accident would not prevent him from returning to his job as a scaffolder.  After taking into account the agreed contributory negligence of 15%, P’s damages would not exceed the Employees’ Compensation already received by him, so that P’s case should be dismissed.

E.  The witnesses

11.P is the only factual witness called.

12.Parties have adduced before this court the joint medial report (the “Joint Medical Report”)[3] and joint supplemental medical report (the “Joint Supp Medical Report”)[4] of Dr Fu Wai Kee (“Dr Fu”)  and Dr Chiang Si Chung Arthur (“Dr Chiang”).  Dr Fu was engaged by P.  Dr Chiang was engaged by Ds.  Though the experts do not fully agree, the reports are adduced without either of them being called.

F.  History of the Injuries, and the hospital records

13.The medical reports and medical records have been placed before this court respectively at Section C and Section H of the trial bundle. I have considered them. 

14.The history of the Injuries and the hospital records have been summarized and reviewed in the Joint Medical Report[5].  I have considered them. The medical treatments that P had received have also been set out at §§6 to 20 of Mr Lin’s written opening, which I have also considered.  In summary, P has been examined and received treatments on multiple occasions at and by inter alia a registered Chinese Medicine Practitioner Dr Chan Chun Ying (see §5 above), A&E of AHNH (see §5 above in so far as the diagnosis on 5 August 2016 is concerned), Dr Wu Kai James who was a private practitioner (diagnosis being left shoulder injury and pain)[6], Tai Po Jockey Club Clinic (physical examination on 20 August 2016 revealing mild tenderness over left shoulder with good range of movement)[7], Dr Lee Kwok Sun of Town Health Medical Group (examination on 1 October 2016 revealing left shoulder range of motion being full, and the diagnosis being left shoulder tendinitis)[8], Wong Siu Ching Family Medicine Centre (examination on 27 September 2016 revealing mild local tenderness around left trapezius and left deltoid, with no redness, swelling or bruising, and active range of movement of left shoulder being full)[9], the Orthopaedics Specialist Out-patient Clinic of AHNH, Physiotherapy Department of AHNH (examination on 9 December 2016 revealing mild local tenderness over the left anterior and posterior shoulder region, the forward flexion range being up to 170 degree and abduction up to 140 degree, grade 4 weakness in left shoulder abduction with mild deltoid atrophy, with no neurovascular deficit)[10], Yan Chai Hospital[11], the Occupational Therapy Department of AHNH, and the Prosthetic and Orthotic Department of AHNH. P also received 3 MRI scans, details of which I will consider below.   

G.  P’s evidence

15.P has been called.  He adopted his two witness statements “P/WS1” and “P/WS2”)  as his evidence in chief. 

16.The Accident is described at §§9 to 12 of P/WS1, and in particular:

“ 10. I carried the aluminum pillar upright to the working location for connection and installation with my right hand holding its upper end and my left hand its lower end. However, since the floor was too slippery with so much cement mortar, my left leg slipped and I lost my balance. I grabbed the aluminum pillar subconsciously as the tall aluminum pillar might hurt myself or others if it fell. Unexpectedly, the downward force of the aluminum pillar pulled my left hand down, and tugged my left hand and shoulder. My whole body leaned forward and I kneeled down on the ground (yet not being flat on my back). The aluminum pillar was thrown out onto another rack in the end.

11. After the accident two workmates nearby came at once and supported me to stand up. My left shoulder and left arm were very painful, and I sat down nearby.

12.  The pain was not eased after resting for 10 to 15 minutes …”

17.Those aspects of his evidence have not been challenged.  I accept them.

18.P’s evidence in respect of the seriousness of the Injuries is challenged.

19.Relying in Kowloon Motor Bus Co (1993)  Ltd v K K Cargo Systems (HK)  Ltd CACV 372/2002 (unrep., 4 April 2003), Mr Lin submits that as the cross-examination of Mr Wong concerns only certain paragraphs of P’s witness statements, P’s evidence in the balance of his witness statements (for example and in particular §3 of P/WS2 claiming that he is no longer able to carry heavy objects and will not be employed for his pre-accident job)  should therefore be accepted by the Court as being unchallenged evidence.  I do not accept that submission.  In Kowloon Motor Bus, Woo JA at §21 observed only that the trial judge was fully entitled to accept certain part of the witness statement as being unchallenged.  It does not support Mr Lin’s submissions that those parts of P’s witness statements which have not been specifically cross-examined on should be accepted.  This is particularly given the facts that (1)  Ds at §2 of their Answers to the RRSoD put P to strict proof of his “Present conditions and disabilities” as pleaded at §§3.2(a)  to (h)  of the RRSoD, (2) Mr Wong has made clear in his written opening that the seriousness of the Injuries is challenged; and (3)  it has been put to P as part of the cross-examination that he only slightly sprained his left shoulder and elbow, that his injuries had mostly recovered by end of 2016 and early 2017, that since that time, the effects of the Injuries on him have been minor, and that he could have resumed his previous work by March or April 2017.

20.In the present case, whilst it is not in dispute that P had the Accident and sprained his left shoulder and left elbow, X-rays of his left shoulder[12] and left elbow[13] have showed no fracture.  There has been no intrusive treatment.  As I will go into further details below, MRI examinations are at best (from P’s perspective)  subject to interpretations.  Radiological examination conducted on 19 March 2020 by the experts showed that the joint alignment of both of P’s shoulders and elbows were normal, and there was no bony lesion.  As explained by Dr Chiang, which I accept, impingement tests have a subjective component to them, as they rely partly on the patient’s description of pain while performing the tests and might sometimes be difficult to interpret.  All these factors mean that P’s credibility as a witness is important in this case, which I need to assess. 

21.In assessing his credibility, I remind myself the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, with contemporaneous conduct and documents, and the internal consistency of the witness’ evidence.  I need to consider the totality of the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is relevant when considering credibility.  I record that I have considered those authorities cited to me on the correct approach in assessing the credibility of witnesses.

22.For the following reasons, I do not find P to be a reliable witness:

(a)  Inconsistent evidence in relation to the number of days P worked per month before the Accident:

(i)  Both in the RRSoD and in P/WS1, P stated and maintained that before the Accident, he worked for 26 days a month;

(ii)  As I have recorded above, it has now been agreed that the number of days P worked each month before the Accident was 22;

(iii)  Under cross-examination, P indeed accepted that whilst he had worked a 26-day month before, on average, the correct figure is 22;

(iv)  His explanation given under cross-examination (about over-time pay, his employer’s alleged failure to pay MPF, not being able to work as a result of weather, sometimes not being paid in full, etc)  in my view do not start to explain the discrepancy;

(v)  I accept Mr Wong’s suggestion that P inflated the figure so as to increase the amount of damages he hoped to obtain from Ds.  Such conduct adversely affects his credibility as a witness;

(b)  Contradictory evidence in relation to the range of movement of P’s left shoulder:

(i)  Under cross-examination, P said that since the Accident, both in respect of forward flexion and abduction, he could not and has not been able raise his left hand to 170^o or 180^o.  Demonstration in court by him showed significantly restricted movement (of about 150^o);

(ii)  His evidence is contradicted by a number of the contemporaneous medical records between 5 August 2016 and 20 January 2017 which state variably that:

“ Physical exam of left shoulder was unremarkable with near-normal active range of motion and no effusion.”[14]

“ There was mild tenderness over his left shoulder. Range of movement of his left shoulder was satisfactory.”[15]

“ FF 0-180” and “ABD 0-170”[16]

“ AROM of L shoulder full”[17]

“ L shoulder ROM flex/abd/ER/IR full”[18]

(iii)  P tried to explained that whilst he could raise his left arm to the extent recorded, he was in great pain;

(iv)  But as recorded in the report of 20 January 2017, in respect of Neer/Hawkin’s test, the signs were negative, indicating that there was no pain when his arm was raised;

(v)  Then P explained that he forgot that he was able to do that, and that whilst he might have been able to do that, it does not mean that his shoulder was not injured;

(vi)  In my view, P must indeed have forgotten what he was able to do, so that he was caught out exaggerating his injuries in court;

(vii)  In re-examination, Mr Lin also took P to some other reports which show that the range of movement of his left shoulder was more restricted.  Whilst that may be so, it remains the case that on quite a number of occasions when being examined, P had been recorded to have full active range of movement of his left shoulder, which records contradict his evidence in court;

(c)  Exaggerating the Injuries:

(i)  I find the following specific matters noteworthy;

(ii)  The Joint Medical Report records that when P was examined on 19 March 2020, the flexion and abduction of his left shoulder were 120^o and 100^o respectively[19];

(iii)  However, the orthopedic consultation he last attended on 17 January 2020 recorded that the flexion and abduction of his left shoulder were both 160^{o [20]}, with both Hawkin’s test and empty can test being negative,

(iv)  When asked about that during cross-examination, P claimed that before being examined by the two experts, he was asked to take off his upper garments, and that in doing so, he “tugged” (or “chok” in Punti)  his left shoulder, which pain affected his performance;

(v)  P however said that he did not tell the experts about that, but just proceeded to be examined;

(vi)  His explanations for not telling the experts about that were that he did not think about that, and that he was displeased for having been asked to take off his upper garments;

(vii)  I do not find the explanations credible at all;

(viii)  I find his evidence in that regard inherently improbable.  If he had in fact “tugged” his left shoulder as he claimed, he would have told the experts, as he would have known that that would affect his performance during the examination.  I reject his evidence in this regard;

(ix)  In my view, P was seeking to exaggerate the extent of the Injuries before the experts, and was untruthful when he gave the explanation about he having tugged his left shoulder;

(x)  Another occasion of exaggeration which P was cross-examined on relates to the Physiotherapy Progress Note on P’s attendance on 1 August 2017[21]. According to that Note, P was recorded to have “left elb pain 4-5/10” since the date of the Accident.  That is inconsistent with other evidence showing that the pain to the left elbow injury had much subsided within 5 to 6 months of the Accident[22]. In that same Note, there are further the following records suggesting P had pretended that his left handgrip was much weaker than it actually was:

“Handgrip: left 9-->22-->10kg pain+ (submaximal effort)”

(d)  The surveillance evidence:

(i)  Surveillance on P has been was conducted;

(ii)  The surveillance recordings of 17 and 23 January and 19 March 2020 were played in court.  They show that P had not avoided the use of his left shoulder and arm in daily activities.  He smoked with his left hand, carried sling bag over his left shoulder, held bags of groceries with his left hand, gesticulated with his left hand while talking etc;

(iii)  I have considered Mr Lin’s submission which highlight the experts’ comments[23], and in particular that “His movement did not exceed that shown in the examination”.  However, in my view, what those recordings show are inconsistent with the extent of his injuries which P describes he has in his P/WS1 (and in particular §§31 to 33 and 35 thereof);

(e)  Mr Lin submitted that P was an unsophisticated person, that he was diagnosed to have bipolar disorder in 2010, and that that may explain why he appeared at times to be easily irritated and anxious in giving evidence.  I do not accept that.  My finding that P is not a reliable witness is not based on his demeanour, but the analysis of the evidence as set out above.  I do not accept Mr Lin’s submission that P is a truthful witness.

G.  The law on causation raised by Mr Lin

23.On the law relevant to causation, I record that I have considered the number of authorities which Mr Lin has cited.  I note the approach summarized in Yu Wai Kan v Law Cho Tai HCPI 62/2010 (11 May 2011)  at §71 by Master Marlene Ng (as she then was)  which Mr Lin has cited.  I have reminded myself of Lee Kin Kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232, that causation is a matter to be determined by the judge using a common sense approach, and applying the standard of the balance of probabilities to the medical expert evidence.  The court is not dictated by it.  I have also considered Mr Lin’s submissions, relying on Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, that in considering the cause of P’s injuries and impairment, the court is not confined to the medical evidence but is entitled to look at all the surrounding circumstances.

24.I note those authorities. I note the need to consider all circumstances of the case.  Whilst I do, the matters I set out at §20 above should also be noted.  I emphasis the subjective nature of impingement tests.  Give those matters, the question as to whether the subjective complaints of pain and restriction in movement are supported by the medical findings and reports read as a whole is an important one.  The experts cannot dictate this court.  But on the other hand, their opinions cannot be ignored or slighted.  I need to consider the experts’ respective reasoning and analysis to decide whether they are sound.  I need to test them against all the other available evidence which I am prepared to accept.  I in this regard note §26 of Mr Lin’s written closing.  The approach he invites this court to take, stripped to its core, is that (1)  P had been in good health and been working in the construction industry for 16 years, (2)  he is now unable to, (3)  the Accident was the only event leading to his current disabilities, and therefore (4)  common sense dictates that it must be the Accident which resulted in his current disabilities and impairment.  In my view, such an approach assumes the existence of current disabilities and impairment on P’s part, assumes that he is now unable to resume his pre-injury work, ignores the experts’ (and in particular Dr Chiang’s)  analysis of the medical evidence and records, and is an over-simplified approach which is not an appropriate one on the facts of the present case. 

25.I now proceed to consider the experts’ evidence.

H.  P’s injuries

26.That P suffered soft tissue injury of the left shoulder[24] as a result of the Accident is not in dispute.  What is in dispute is the extent of those injuries.

27.Dr Fu and Dr Chiang are not in total agreement as to the extent of P’s injuries.  Their main differences relate to:

(a)  whether the Accident caused any tear of the supraspinatus tendon at P’s left shoulder;

(b)  whether P was diagnosed with frozen shoulder; and if so, whether his frozen shoulder was caused by the Accident;

(c)  whether the Accident caused any pain to P’s left elbow; and

(d)  whether P had any pre-existing condition or degeneration to his left shoulder.

H.1.  Whether any tear of the supraspinatus tendon

28.I deal with the first main difference between the two experts.

29.The two experts agree that P’s injuries to his left shoulder is consistent or compatible with the diagnosis of soft tissue injury. Their difference is whether there was also any partial tear of the supraspinatus.  Dr Fu says yes.  Dr Chiang on the other hand opines that the diagnosis of soft tissue sprain was localized to the rotator cuff/supraspinatus of the left shoulder and was without a clinically significant partial thickness or full thickness supraspinatus tear.

30.In the Joint Medical Report, beyond stating that the mechanism of injury is compatible with Injuries, Dr Fu does not offer any reasons in support of his view.  Nor does he offer any analysis of the primary medical records.

31.On the other hand, Dr Chiang in the Joint Medical Report gives detailed reasons in support of his opinion:

(a)  He considered the medical treatments which P had received and the related examination findings[25]. He set out some of the records which showed that the range of movement of P’s left shoulder movement had been full or normal.  He then fairly considered also that[26]:

“ In some of the [A&E] visits and orthopaedic visits in the earlier stage after the injury, there were various findings and description which suggested symptoms arising from the supraspinatus. On and off at different stages, there was positive painful arc, and various impingement signs such as but not limited to empty beer can test, Neer test, Hawkin’s test, which sometimes were found to be positive and other times negative.”

(b)  Mr Lin relies on that paragraph and submits that P’s conditions have been fluctuating;

(c)  However, what is important is that Dr Chiang then proceeds to consider the medical records, and in particular the MRI scans before giving his opinion as to whether there was any tear of the supraspinatus tendon.  He explains[27] that:

“ … The impingement tests, and/or presence of painful arc in the mid-range of abduction suggest the possible presence of pain arising from tear or inflammation of the supraspinatus. These tests have a subjective component, as it relies partly on one’s description of pain while performing the test and might sometimes be difficult to interpret. MRI examination when combined with the clinical tests could make a diagnosis of supraspinatus tear.”

(d)  P has undergone 3 MRI scans.  They took place on 12 August 2016, 30 March 2017 and 16 December 2019.  Three reports have been produced (the “1^st MRI Report”[28], “2^nd MRI Report”[29] and “3^rd MRI Report”[30]);

(e)  The 1^st MRI was conducted in the Mainland.  No tear of supraspinatus was detected.  The report states inter alia that[31]:

“ Long patchy T1 and T2 signals are detected at the left clavicle acromion. A high-frequency signal for T2SPAIR sequencing is also detected, while no abnormal changes are found according to the signal and the shape of the left humerus. Although the signal for the left supraspinatus is getting stronger, the continuity is yet complete …”;

(f)  The 2^nd MRI Report records inter alia that[32]:

“ Increase T2 signal in the supraspinatus tendon is noted. Mild irregularity on the bursal surface of the tendon is suggestive of partial tear.”

(g)  The 3^rd MRI Report records inter alia that[33]:

“ ROTATOR CUFF

The supraspinatus, infraspinatus and subscapularis are unremarkable. No tear seen. No retraction or muscle atrophy can be identified

…

-  No rotator cuff tear is detected”

(h)  Dr Chiang has considered and analyzed the 3 MRI Reports;

(i)  Dr Chiang observes that:

(i)  the 1^st and 3^rd MRI Reports do not show any clinically significant partial or full thickness supraspinatus tear;

(ii)  the 2^nd MRI Report itself does not appear to be a definitive finding, but only describes mild irregularity suggestive of partial tear;

(iii)  the 2^nd MRI Report, read together with the 1^st and 3^rd Reports, further support the view that clinically significant supraspinatus tear was less likely to have arisen from the Accident;

(j)  Dr Chiang further notes that:

(i)  in the follow-up orthopaedic visit on 20 January 2017[34], P’s left shoulder range of movement (which included flexion, abduction, external rotation and internal rotation)  was of full range;

(ii)  in the next orthopaedic follow-up on 17 March 2017[35], forward flexion reached 170^o;

(iii)  those orthopaedic follow-ups took place about the time when the 2^nd MRI was conducted.  The Neer’s and Hawkin’s signs, which are impingement tests mainly performed in the follow-ups in that period, were negative, i.e. being normal; 

(iv)  the results of those orthopaedic follow-ups reinforce Dr Chiang’s views gathered from the MRI Reports;

(k)  During the further orthopaedic follow-ups on 26 May[36] and 14 June 2017[37], the range of movement of P’s left shoulder remained full;

(l)  Dr Chiang has explained and stated all the above in the Joint Medical Report.  Dr Fu has not offered any analysis in reply, whether in the Joint Medical Report or in the Joint Supp Medical Report.

32.In my view, Dr Chiang’s approach and analysis are fair and sound.  He notes findings suggesting that the range of movement of P’s left shoulder was full or normal (or just mildly decreased).  He notes some other findings and descriptions which suggested symptoms arising from the supraspinatus.  He notes on the other hand the subjective nature of the impingement tests yielding those findings.  He proceeds to consider and interpret the MRI scans and clinical tests.  Only then when he reaches his opinions, which are consistent with and supported by those MRI scans and clinical tests. 

33.On the evidence before me, I accept Dr Chiang’s opinion and analysis that soft tissue sprain suffered by P was localized to the rotator cuff/supraspinatus of the left shoulder[38], and was without a clinically significant partial thickness or full thickness supraspinatus tear. I so find.

H.2.  Whether frozen shoulder

34.In the 3^rd MRI Report, it is stated that:

“ There is mild oedema and soft tissue thickening in the rotator interval. Mild thickening of joint capsule in the axillary recess (3.5mm). Features raise possibility of adhesive capsulitis.”

35.Frozen shoulder is the common term for “adhesive capsulitis”.

36.It does not appear that Mr Lin is seeking to base P’s main case on any condition of frozen shoulder.  At §22 of his written closing, he submits that:

“ … there is no sufficient evidence to establish that P’s condition was caused by unrelated frozen shoulder or some other events which were not explored on cross-examination. In any event, Dr Fu has said in the [Joint Supp Medical Report] that:

‘Adhesive capsulitis is not an uncommon complication following soft tissue injury of shoulder.  For [P], the adhesive capsulitis should be the result of the alleged accident.  Apportionment should not be required.’[39]”

37.Dr Fu has given no reason in support of his opinion.

38.In the Joint Medical Report, Dr Chiang explains in some details that frozen shoulder may arise spontaneously or after trauma.  In relation to the latter type, he describes its natural course of a cycle of 1 to 1.5 years.  He opines that since the 3^rd MRI was performed at a time more than 3 years after the Accident, if the frozen shoulder was clinically confirmed, the much later onset should have arisen spontaneously or in association with other events, and should not be related to the Accident[40].

39.On the evidence, I accept the reasoned opinion of Dr Chiang.

40.I accept Mr Wong’s submission that the evidence showing the nexus between P’s frozen shoulder and the Accident is lacking.

H.3.  Left elbow

41.Dr Fu opines that P’s clinical picture is compatible with the diagnosis of soft tissue injury of left elbow and that it should also be the result of the Accident[41].

42.Dr Fu has not analyzed the medical records, which show a different picture.  As has been pointed out by Dr Chiang, left elbow was “on and off mentioned” in reports at earlier stages.  The range of movement of the left elbow was full all along.  The symptoms were more on the mild side.  During the period between 9 December 2016 and 26 May 2017, no left elbow symptoms were mentioned in orthopaedic follow-up records.  In the Physiotherapy Discharge Summary of 23 February 2017[42], it was expressly recorded that “Lt elb now no pain mostly but tightness”.  Whilst left elbow lateral side pain was mentioned again in the orthopaedic visit on 14 June 2017, the left elbow pain was not expected to relapse spontaneously when P was still at rest from given sick leave at that stage.  On the above bases, Dr Chiang opines that the left elbow injury was likely to have been of mild soft tissue sprain which had likely resolved before the end of the 2016, and that the left elbow symptoms mentioned again on 14 June 2017 would more likely to have arisen from other causes and was causally unrelated to the Accident.

43.I note further that on the date of the examination by the experts, as recorded by Dr Fu “For the left elbow, [P] did not complain of it during examination but he had pain when stressed.  In view of his current condition the left elbow does not need further treatment”[43]. The Joint Medical Report further records that findings of the examination carried on that day that “Elbow, wrist and hands full power and range of movement.”[44]

44.Dr Chiang’s opinion is consistent with P’s evidence given during cross-examination, that the pain to his left elbow had become mild 5 to 6 months after the Accident.

45.On the evidence before me, I accept Dr Chiang’s evidence and opinion that any left elbow injury caused by the Accident was likely of mild soft tissue sprain which had likely resolved before the end of the 2016, and that the left elbow symptoms mentioned again on 14 June 2017 would more likely to have arisen from other causes and was causally unrelated to the Accident.

H.4.  Pre-existing conditions

46.In the Joint Medical Report, Dr Fu notes and opines as follows[45]:

“ 4)  Dr. Fu notes that there are degenerative changes in the radiological studies of [P’s] left shoulder. These should be pre-existing.

5)  Dr. Fu opines these kinds of mild degenerative changes are very common in normal population in [P’s] age. Most are asymptomatic or mildly symptomatic. There is no evidence to suggest they are symptomatic in him before the alleged accident. The fact that he could manage heavy manual duties before the alleged accident indicates his left shoulder condition should be very good at that time. Only after the accident he had the left shoulder impairment. The accident is not the cause of such degeneration, but took place on top of such a condition. The accident should have turned the asymptomatic degeneration into symptomatic one. If the alleged accident did not have happened the left shoulder should have remained asymptomatic as his right should now. For the left elbow, there is no evidence of pre-existing pathology.

6)  Dr. Fu: in consideration of the 3 possible scenarios of pre-existing condition: [P’s] condition belongs to scenario (i)  …”

47.Dr Chiang has considered the possibility of pre-existing conditions in some details.  He analyzes the findings of “degenerative MRI signal” and “muscle atrophy” separately[46], as follows:

48.In relation to MRI signal:

(a)  Dr Fu’s opinion is, as submitted by Mr Wong[47] which I accept, premised upon an erroneous factual premise that “there are degenerative changes in the radiological studies of [P’s] left shoulder” (emphasis added).  As Dr Chiang has commented[48] (with emphasis added):

“ The 1^st MRI was performed on 12.8.2016. According to the [1^st MRI Report], it showed increased signal over the left supraspinatus muscle …”

“ In the MRIs and x-rays that were performed at different stages, no clinically significant radiological degenerative changes or old injuries that might suggest pre-existing elements were found. The description of degenerative MRI signal in the rotator cuff/supraspinatus which was sometimes present also in situations such as inflammation or after strain/sprain did not represent definite degenerative changes, as the 2^nd and 3^rd [MRI Reports] did not reveal such changes, which was likely due to the resolution of the signals that represent sprain over the rotator cuff/supraspinatus.”

(b)  I accept also Mr Wong’s submissions that Dr Fu’s discussion is imprecise and lacks analysis[49];

(c)  On the evidence, and having considered Dr Chiang’s analysis of the medical records which in my view is sound, I accept his opinion stated and reiterated at §3 of the Joint Supp Medical Report[50], that:

“ The degenerative signals could be present in both degeneration and non-degenerative conditions, such as inflammation or strain. These signals were not noted in the 3^rd MRI [Report] (the last MRI). The resolution of these signals suggested that the signals were not related to degeneration and did not form a pre-existing element.”

49.In relation to atrophy in the left deltoid muscle:

(a)  Dr Chiang deals with muscle atrophy at Comments 7)ii. to iii. of the Joint Medical Report and §§4 to 7 the Joint Supp Medical Report;

(b)  He notes that the left deltoid muscle atrophy was first mentioned in the orthopaedic visit on 9 December 2016, which was about 4 months after the Accident;

(c)  He considers the timing of that finding in the context of the timing for the development of muscle atrophy, and explains at Comments 7)iii. of the Joint Medical Report[51] that:

“ Dr Chiang opines that, based on the generally noted progress in similar conditions, the extent of the left shoulder injury sustained by [P] appeared unlikely to be significant enough to cause deltoid muscle atrophy in a relatively short period of 4 months. The deltoid atrophy was not entirely clinically explainable, and the possibility that it arose from some long duration pre-existing left shoulder condition could not be fully excluded. Due to the absence of recorded treatment history for left shoulder symptoms before ‘the injury’, further conclusion could not be reached.”

(d)  At §§5 to 7 of the Joint Supp Medical Report[52], Dr Chiang explains further as follows:

“ 5. Muscle atrophy that develops early after an injury could result from severe acute injury, which was not [P’s] case. It could also develop gradually from moderate degree of permanent disability. This was also not [P’s] case since the left deltoid atrophy was already present in the early stage after ‘the injury’, and that [P’s] residues were mild, i.e. much better than moderate degree of permanent disability. This formed the basis for suggesting the possibility that the left deltoid atrophy arose from some long duration pre-existing left shoulder condition could not be fully excluded.

6. However, the records and reports did not reveal any obvious pre-existing local or systemic diagnoses to account for the left deltoid muscle atrophy. There was also no documented treatment for pre-existing left shoulder condition.

7.  On re-consideration, since muscle atrophy is a physical sign and not a diagnosis, and in the absence of a pre-existing diagnosis, the 3 scenarios and apportionment might not be applicable.”

(e)  At Comments 11)n. of the Joint Medical Report[53], Dr Chiang further explains his view that the muscle wasting that localized to the deltoid of the left shoulder as noted in the examination the experts conducted was likely to be a part of the frozen shoulder and not a result from the Injuries.

50.On the evidence before me, I find that P has failed to establish any pre-existing condition likely to lead to disability and loss, so that the 3 scenarios approved by the Court of Appeal in Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 has no application.  I accept Dr Chiang’s opinion in this regard.  For the same reason, the case of Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd and Others[2002] 4 HKC 76 at §22 per DHCJ Benjamin Yu SC cited by Mr Lin, which discussion being premised upon the existence of certain pre-existing conditions, does not assist P.

I.  P’s state of recovery

51.The Accident took place in August 2016.

52.During a number of follow-up orthopaedic visits discussed above (which took place on 20 January, 17 March, 26 May and 14 June 2017), the range of movement of P’s left shoulder was full.  The Neer’s and Hawkin’s impingement tests showed negative signs. 

53.P attended 3 courses of physiotherapy.  He had been discharged from all:

(a)  The first course took place between 15 August 2016 and 23 February 2017 at AHNH[54]. The initial complaint was pain over posterior shoulder.  41 sessions ensued.  The final clinical findings on 23 February 2017 were, inter alia, that the active and passive range of motion of P’s left shoulder flexion, abduction, external rotation and internal rotation were all full, and hand behind back was T7[55].  The active range of motion of left elbow and wrist were full[56]. Hawkin’s and Neer’s tests were both negative, and that “Progress static already”.  He was discharged on that same day;

(b)  The second course took place between 20 June and 15 August 2017[57] also at AHNH.  The initial complaint was pain over his left elbow.  Whilst there is some confusion as to the exact number, it appears that 9 sessions ensued.  The final clinical findings on 15 August 2017 were, inter alia, that the “AROM of left elbow was full.  The grading of left elbow manual muscle testing was more than grade 3.  The strength of elbow was either limited by shoulder pain or submaximal effort by the patient.”  Condition was commented to be static[58].  He was discharged on that same day;

(c)  On 30 August 2019, P was referred by AHNH to Yan Chai Hospital for out-patient physiotherapy.  P first attended on 29 April 2020.  On 19 August 2020, P still reported mild left shoulder pain and stiffness, and decreased range of motion. Amongst others, the active range of motion of P’s left shoulder flexion and abduction were both 150^o.  He was discharged on that day “in view of static progress”[59].

54.I find that P had by the time of those reports shown satisfactory recovery from the Injuries.  I accept Dr Chiang’s opinions expressed at §11)o. to q. of the Joint Medical Report[60], which in my view are consistent with and supported by the totality of the evidence, that:

“ o. As noted from the progress since ‘the injury’, the MRI findings at different stages, the presence of submaximal effort as noted in the physiotherapy report, and the natural course of similar extent of soft tissue injury of the left shoulder and left elbow, [P’s] left shoulder injury had likely acquired satisfactory recovery by the end of 2016 or early 2017.

As discussed above, the absence of left elbow complaints for about 6 months since the end of 2016 suggested that the left elbow injury had likely also acquired satisfactory recovery by the end of 2016.

p. The subsequent events and complaints after early 2017 were unlikely related to ‘the injury’.

q.  By estimation from the condition of the left shoulder and left elbow in late 2016 and early half of 2017, which was satisfactory, residues from ‘the injury’, if present would be confined to a slight decrease in the end range endurance of the pre-injury capacity in performing prolonged and continuous heavy manual activities.”

55.I note Dr Fu’s opinion at §12)  of the Joint Medical Report[61], that:

“ [P’s] current left shoulder and elbow pain, weakness and stiffness will persist. [P] will have on and off attack of left shoulder pain that will be aggravated by exertion.”

I accept Mr Wong’s submissions[62] that Dr Fu’s opinion is not supported by any detailed reasoning.  I prefer and accept Dr Chiang’s views as set out above.

56.In relation to working capacity:

(a)  At §§14)  and 15)  of the Joint Medical Report[63]:

“ 14)  Dr. Fu notes that [P] has been assessed in detail by occupational therapists and concluded that his working capacity did not meet his job demand. In view of his present shoulder condition, Dr. Fu agrees [P] cannot return to his original work that required heavy lifting and climbing. His current job as security guard should be appropriate. Other lighter duties such as car park attendant or cashier are also appropriate.

15)  Dr Chiang opines that, based on the condition of the left shoulder and left elbow in 2016 and early 2017, physically [P] should be able to return to the pre-injury job in the pre-injury capacity.  Reduction in efficiency, if present, would likely be very mild.”

(b)  In relation to Dr Fu’s opinion, beyond noting that “P has been assessed in detail by occupational therapists”, Dr Fu has given no reason in support of his opinion.  Dr Fu has not even specified what those assessments “by occupational therapists” are, not to mention analyzing them.  In this regard, and in any event, I accept Mr Wong’s submissions[64] that the occupational therapists assessment were based on P’s reported subjective difficulties and, given my views on P’s credibility and the totality of the evidence as analyzed above, are not reliable;

(c)  Dr Fu has not expressly referred to or relied upon the medical report prepared by Poon Mei Yee Carey of the Department of Occupational Therapy of AHNH[65]. Mr Wong has, with reference to the contemporaneous medical notes[66], submitted that the assessments were subjective, and that they could not be taken at their face value.  I accept those submissions;

(d)  On the other hand, Dr Chiang’s opinions are based upon his analysis of the contemporaneous medical notes and records, which he has stated and set out in detail;

(e)  On the totality of the evidence, I prefer the evidence and opinion of Dr Chiang.

57.With the above evidence and findings in mind, I proceed to assess the quantum of the damages.

J.  PSLA

58.P asks for HK$350,000.  Ds say about HK$150,000.

59.Mr Lin has cited to me a number of cases in support of P’s claim, which include:

(a)  Iau Kau Ih (where the plaintiff was hit by a collapsing crane, with “left chest wall, right shoulder, right elbow and right thumb contusion”, hospitalized for 5 days, followed by physiotherapy treatment for six months, with complaints initially of persistent right wrist and hand pain, and later low back pain and residual stiffness and weakness of the shoulder, wrist and thumb, difficulty in having sexual intercourse, and troubles with nightmares), where HK$400,000 was awarded for PSLA;

(b)  Chung Chi Wing v Secretary For Justice HCPI 436/1997 (unrep., 28 July 1998)  (fireman hit by a heavy metal nozzle causing a very painful sprain to right shoulder later discovered to be an impinged tendon, necessitating subsequent decompression surgery and manipulation of the shoulder joint under general anaesthesia, followed by a prolonged period of physiotherapy treatment of some 85 sessions), where HK$350,000 was awarded for PSLA;

(c)  Chong Leung Sung v Chau Kai Keung HCPI 709/1998 (unrep., 13 December 1999)  (large amount of falling soil and other materials (estimated to weigh between 1-2 tons)  striking the plaintiff’s head and on the near upper part of torso around shoulders and neck during excavation works, breaking the helmet and causing some form of compression and twisting forwards of the neck)  where HK$350,000 was awarded for PSLA;

(d)  Ng Shing Kwai v Chan Yu Chuen HCPI 923/2001 (unrep., 7 September 2002)  (a fully loaded skip suspended from a crane falling on the plaintiff and causing him to fall into a water tank, with multiple contusions of the right shoulder, elbow and back with bruising), where HK$320,000 was awarded for PSLA;

(e)  Rai Shiva Krishna v Woo Loong Scaffolding Works Co Ltd [2018] HKCFI 488 (the plaintiff falling from height sustaining injuries to mainly right shoulder, upper and lower limb, having been hospitalized for 1 week, with a full thickness tear of the supraspinatus tendon of the right shoulder which required a repair operation (right shoulder arthroscopy and cuff repair with acromioplasty)), where HK$360,000 was awarded for PSLA.

60.I have set out P’s history of injuries above.  I have accepted Dr Chiang’s opinion on P’s Injuries and the state of their recovery.  I highlight Dr Chiang’s opinion which I accept that P suffered from soft tissue sprain that was localized to the rotator cuff/supraspinatus of the left shoulder, and there was no clinically significant partial thickness or full thickness supraspinatus tear.  In comparison, those cases relied upon by Mr Lin are all much more serious.

61.In my view, P’s claim for HK$350,000 is unjustifiably high.

62.I have considered the authorities which Mr Wong has cited, which include:

(a)  Chau Chi Wah v Wong Kwok Ming DCPI 1059/2007 (unrep, 18 April 2008)  (traffic accident leading to soft tissue injury to the right shoulder causing a mild tendinitis of the rotator cuff, giving rise to painful arc syndrome and restricted motion in the right shoulder, minimal discomfort and feeling of a click at the subacromial space when the arm raised to horizontal level, likelihood of mild residual tenderness at the supraspinatus insertion on the great tuberosity persisting, and residual loss of flexion in functionally not being significant), where PSLA was awarded at HK$100,000;

(b)  Yiu Yuen Yee v Johnson Cleaning Services Co Ltd [2019] HKDC 1110 (injuries of tenderness over left shoulder with reduced range of motion suffered when lifting rubble over the top of a skip, diagnosed as a sprain with no fracture, and subsequent MRIs showing “small full thickness tear involving the mid and posterior fibres of the supraspinatus tendon” and “tendinosis of the anterior part of the tendon”, and later amongst others “full thickness tear of the supraspinatus tendon with moderate muscle atrophy and suspected superior labral tear”, requiring a left shoulder arthroscopic cuff repair, superior labral repair and arthroscopic acromioplasty), where HK$150,000 was awarded for PSLA;

(c)  Rai Jun Prasad v Pacific Crown Security Services Ltd and Another [2018] HKCFI 1086 (injuries sustained by stress and tension to right shoulder while the plaintiff gripped something to stop his fall, being soft tissue injuries to right shoulder, left knee, left buttock and lower back as a result of the fall, with MRIs revealing initially a sub acromial and sub deltoid bursitis over the right shoulder, a disc bulge at L3/4 level of the lumbar spine and an encysted ganglion abutting the ACL and PCL, and later supraspinatus tendinosis and a subacromial spur, requiring surgery in respect of the right shoulder injury), where PSLA was awarded at HK$150,000;

(d)  Li Wing Kwai v Chan Hau Yu DCPI 1883/2012 (unrep., 5 September 2014)  (injuries from being pulled by someone, being soft tissue contusion injury to the plaintiff’s left elbow/wrist, dorsal aspect of the left hand and right shoulder, with persistent pain of right shoulder caused by impingement syndrome and tendinosis or partial tear of the supraspinatus tendon), where HK$200,000 (before discount for pre-existing condition)  was awarded for PSLA.

63.I accept that the cases cited by Mr Wong are much more apposite to P’s present claim.  Having considered them, I award HK$150,000 to P under the head of PSLA.

K.  Sick Leave Period

64.Parties have agreed that P’s pre-accident monthly income was HK$28,600, calculated on the basis of HK$1,300 per day and 22 days of work per month.

65.As summarized by Mr Lin[67], P was given a total of 784 days of sick leave including (i)  continuous sick leave between 3 August 2016 and 15 August 2018, and (ii)  intermittent sick leave from 26 March 2019 to 24 May 2019.

66.Dr Fu is of the opinion that the sick leave P received is appropriate for his conditions[68]. Beyond that, he had not elaborated upon his opinion.

67.As set out in §17)  of the Joint Medical Report[69]:

“ 17)  Dr. Chiang refers to the following:

i. the progress as noted at the end of December 2016 and early half of 2017,

ii. the not fully explainable long duration of persistent left shoulder complaints and the late reappearing of left elbow complaints, with possible submaximal effort in performing the tests for left elbow on discharge from physiotherapy in August 2017,

iii. that the course of physiotherapy ended on 23.2.2017, and

iv. the generally required sick [sic.] for similar extent of soft tissue injury of the shoulder and elbow.

Dr. Chiang estimates that the required sick leave for recovery from ‘the injury’ could probably end by about March to April 2017.”

68.I have considered the sick leave certificates.  But As submitted by Mr Wong, supported by Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18, sick leave certificates are not conclusive evidence of when a patient is able to go back to work.  They are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.

69.On the totality of the evidence before this court, I accept Dr Chiang’s evidence and opinion on the issue.  I conclude that 8 months of sick leave would have been appropriate.

70.Mr Lin submits[70] that even if this Court is to cut short P’s sick leave, there should be a further period of say 3 months after the sick leave period to cater for adjustment and finding a new job.  He relies on Chan Mok Yau v 黃吉利 [2018] HKCFI 1084 at §29, Wong Kai Fun v Sun On Logistics Ltd HCPI 196/2015 (unrep., 26 May 2017)  at §39, and Talat Zahid v Cheung Fat Metal Trading Co Ltd HCPI 399/2012 (unrep., 26 June 2017)  at §80.

71.I accept Mr Lin’s submissions in this regard.  I add to the 8 months 3 additional months to cater for adjustment and P finding a new job.

72.In conclusion, I allow sick leave of 11 months, at the monthly salary of HK$28,600, in the total amount under this head (inclusive of MPF)  of HK$28,600 x 1.05 x 11 = HK$330,330.

L.  Further pre-trial loss of earnings, future loss of earnings and loss of earning capacity

73.Given my acceptance of Dr Chiang’s opinions and my findings above, I accept Mr Wong’s submissions that there should be no further award under the heads of further pre-trial loss of earnings, future loss of earnings and loss of earning capacity.  I make no award in those regards.

M.  Future medical expenses

74.Dr Fu opines at §10)  of the Joint Medical Report[71] that:

“ [P] complained of persistent pain. Physical examination revealed stiffness of left shoulder. MRI confirmed partial tendon tear. In view of his condition surgery, namely shoulder arthroscopy with tendon repair and release of adhesive capsulitis, can be considered. The result of surgery is usually good. There are risks … / like injury to neuro-vascular bundle, infection and other risks of general anaesthesia. He must accept all the risks before he has surgery. The cost of surgery in public sector is nominal. The cost of it in private sector will be around $120,000. He will need around six months of sick leave and rehabilitation after the surgery. If he does not want the surgery, then he does not need further treatment …”

75.P therefore claims further medical expenses in the sum of HK$120,000.

76.As can be seen from §10)  of the Joint Medical Report, Dr Fu’s opinion on P’s future treatment is based upon his interpretation of the MRI Reports that there had been partial tendon tear.  I repeat my acceptance of Dr Chiang’s evidence and my finding that soft tissue sprain suffered by P was localized to the rotator cuff/supraspinatus of the left shoulder, and was without a clinically significant partial thickness or full thickness supraspinatus tear.

77.In respect of Dr Fu’s view that surgery can be considered for release of adhesive capsulitis, I repeat my acceptance of Dr Chiang’s view and my view that the evidence showing any nexus between P’s frozen shoulder and the Accident is lacking.

78.I accept also Mr Wong’s submissions[72] that in any event there is no reason why P had to undergo any of the suggested procedures in the private sector, or that P would be proceeding to undergo them.  It is also important to note that Dr Fu’s opinion, even assuming the existence of tendon tear and frozen shoulder, is only that surgery “can be considered”.

79.For the above reasons, I refuse any award under this head.

N.  Other special damages

80.P claims HK$35,000 for medical expenses, HK$5,000 for tonic food, and HK$3,500 for travelling expenses (in the total sum of HK$43,500).

81.I have considered Attachment II annexed to P/WS1. A substantial number of the items listed out therein were incurred after April 2017.

82.Given my findings on P’s state of recovery, I accept Mr Wong’s submissions that many medical consultations, especially those after April 2017, were of no therapeutic value.  I repeat also my finding that there is insufficient evidence showing that any frozen shoulder was caused by the Accident.

83.Without being able to achieve arithmetical accuracy, I allow respectively HK$25,000, HK$3,000 and HK$2,000 under the 3 heads, in the total sum of HK$30,000.

O.  The results

84.In conclusion, I award, before taking into account the Employees’ Compensation in the sum of HK$906,200:

(a)	PSLA	HK$150,000
	Pretrial loss of earnings and MPF	HK$330,330
	Further loss of earning	Nil
	Loss of earning capacity	Nil
	Future medical expenses	Nil
	Other special damages	HK$30,000
		HK$510,330
	Net of 15% contributory negligence (HK$510,330 x 15% = HK$76,550)	HK$433,780

(b)  Interest on general damages incurred at 2% from the date of the writ to the date of the judgment, and interest on special damages at half judgment rate from the date of the Accident to the date of the judgment.

85.The quantum as assessed above, even with interest taken into account, is less than the amount of the Employees’ Compensation which P has received. 

P.  Disposition

86.At §4(5)  of his written opening, Mr Wong submits that P’s damages would not exceed the Employees’ Compensation already received, so that P’s case should be dismissed.

87.I note however that P has been successful on the issue of liability, in that Ds only admitted liability to the extent of 85% shortly before the commencement of the trial.  P has also been successful in proving quantum to the extent which I have found.  I am not at this stage, in the absence of further submissions, prepared to accede to Mr Wong’s submission to dismiss P’s claim.  I will only, as oppose to dismissing the claim, make an order nisi (the “Order Nisi”)  at this stage that having taken into account the Employees’ Compensation that P has received, there be no further award herein.

88.On the issue of costs, given P has been successful in proving quantum to the extent which I have found, I will before making any costs order invite parties to make submissions to me on the question of costs.

89.I therefore direct that P shall file and serve submissions within 14 days from the date hereof on the Order Nisi above, and on the question of costs, Ds to file their response within 14 days of receipt, and P to file and serve reply within 7 days thereafter.  Those matters will, subject to any further direction I may give, be disposed of on the papers.  

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

Mr Simon Wong, instructed by Deacons, for the 1^st and 2^nd Defendants