Shabar Rehman v. Sunny Success Holdings Ltd

DCEC 367/2020 & DCPI 2437/2020
(Heard together)

[2022] HKDC 1403

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 367 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2437 OF 2020

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JUDGMENT

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INTRODUCTION

1.Before me are an assessment of compensation and an assessment of assessment of damages both arising from the same accident in the course of employment.  Howsoever usual they seem, as will be seen towards the end of this judgment, I will make a costs order nisi in the assessment of damages that the plaintiff should pay costs to the Fund Board on an indemnity basis, departing from the usual position taken by the Employees Compensation Assistance Fund Board (the “Fund Board”) that there be no order as to costs between the plaintiff and the Fund Board.  As will be explained, I think that to ensure that its public resources would be properly used, the Fund Board should not refrain from seeking costs against plaintiffs who seek quantum with no justification and/or with dishonest allegations.

2.To wit, the assessments before me are respectively:-

(1)  Assessment of compensation in DCEC 367/2020 (the “EC Action”) commenced by Sharbar Behman (the “plaintiff”) against his employer Sunny Success Holdings Limited (“Sunny Success”).  In the EC Action, the plaintiff also lodged a notice of appeal against Form 7 dated 15 November 2021 concluding that the plaintiff has 0% loss of earning capacity (the “Form 7”).

(2)  Assessment of damages in DCPI 2438/2020 (the “PI Action”), commenced by the plaintiff against Sunny Success as the 1^st defendant and Employees Compensation Assistance Fund Board (the “Fund Board”) joined as the 2^nd defendant.

3.Sunny Success has all along been absent in both Actions. 

THE ACCIDENT

4.The accident (the “Accident”) happened at around 10 pm on 19 May 2019. The plaintiff was in the course of employment of Sunny Success.  He was instructed to hold a bag at the dispensing end of a cutting machine and collect cut plastics.  The machine suddenly malfunctioned due to excessive plastics being jammed inside the machine.  The plaintiff was then instructed to fix the machine by removing the plastics that jammed onto the blades in the machine. The plaintiff then proceeded to do so accordingly.  In removing the plastics, the blade suddenly started moving and one of the blades cut the plaintiff’s right hand lower palm.  As a result, the plaintiff’s right hand lower palm was lacerated.

5.In the PI Action, interlocutory judgment on liability was entered on 1 December 2020.  In the EC Action, interlocutory judgment on liability was entered on 8 January 2021.

ISSUES

6.The issues before me are:-

(1)  The extent of the injury suffered by the plaintiff;

(2)  The plaintiff’s ability to resume work;

(3)  The monthly income of the plaintiff prior to the Accident;

(4)  The amount of pre-trial loss of earnings;

(5)  The amount of loss of future earnings, if any;

(6)  The extent of the loss of earning capacity, if any;

(7)  The amount of PSLA;

(8)  The amount of special damages; and

(9)  The amount of compensation in the EC Action.

EVIDENCE

7.There is only one factual witness, namely, the plaintiff himself.  He gave oral evidence at trial.

8.Further, pursuant to the Order made on 3 September 2021 in the PI Action, on 29 November 2021 (that is, about two and a half years after the Accident), he was jointly examined by Dr Ko Put Shui Peter (“Dr Ko”), specialist in Orthopaedics and Traumatology for the 2^nd defendant and Dr Wong Chin Hong (“Dr Wong”), specialist in Orthopaedics and Traumatology for the plaintiff.  They prepared a joint medical report dated 14 December 2021 (the “Joint Medical Report”).

ANALYSIS OF MEDICAL EVIDENCE

(A) Treatment received in hospital after the Accident

9.In the Joint Medical Report, both Dr Ko and Dr Wong recount what treatment the plaintiff received in hospital after the Accident: the plaintiff went by taxi to attend the AED of Tin Shui Wai Hospital and was admitted to the Orthopaedic ward, Tuen Mun Hospital.  It was recorded in the medical notes that he suffered a 3-cm laceration wound over right medial volar aspect of wrist, with depth of the wound to the subcutaneous tissue.  He received exploration and suturing under local anaesthesia and was discharged the same day.  His wound healed and stitches were removed on 4 June 2019.  He was last seen on 2 July 2019, when he was able to make full fist.  He did not attend any physiotherapy, occupational therapy and any other treatment.  No X-ray was taken.  Nor was any other kind of scan.

(B) Joint examination

10.Both Dr Ko and Dr Wong agree that during the joint examination on 29 November 2021, the plaintiff walked into the clinic with normal gait, at normal speed and pace.  His lower limb, bilateral shoulders and elbows were all normal.  The scar at his writ was almost inconspicuous.  He could make full fists of both hands, and his upper limbs sensation was normal to both sides. Both Dr Ko and Dr Wong agree that the injury was superficial skin wound.  Both agree that the plaintiff is able to manage his activities of daily living and self-care activities with no significant problem.  Neither of the experts mentions that the plaintiff has suffered any structural deficit and structural damage.  Nor did they think it necessary to take X-ray of the plaintiff’s right hand. 

(C) The plaintiff’s complaints and symptoms

11.Dr Ko is of the view that the plaintiff showed features of obvious exaggeration and magnification of his alleged symptoms.  His reasons are as follows:-

(1)  Jumar hand grip test was administered.  Per the test, while the left side shows the bell shape curve, the right side shows plateau.  This means plaintiff’s manipulation and exaggeration or magnification of his weakness.

(2)  If the plaintiff had such degree of weakness in the past two and a half years, it would not be possible for him to have preserved muscle bulk in the arm and forearm girth measurement.

(3)  On movement of his right wrist in all directions, the plaintiff complained of pain which does not have any anatomic, pathological or organic explanation with such superficial skin wound.

12.Despite opportunity to do so, Dr Wong did not give any comment in Joint Medical Report in respect of Dr Ko’s view of the plaintiff’s exaggeration and magnification and the underlying reasons.

(D) Ability to work

13.As regards the plaintiff’s ability to resume his pre-accident job, Dr Ko opines that he should have been able to by around early July 2019 with no impairment of his work efficiency and effectiveness.  Dr Wong’s opinion relies more on the subjective symptoms alleged by the plaintiff.  He states:-

“[The plaintiff] has recovered satisfactorily from his right wrist injury. The reduced grip power in his right hand was much weaker than expected and was likely to be due to under-performance. Nevertheless, the pain and numbness on exertion and movement of his wrist, as well as tenderness on and around the scar were consistent with sequelae of laceration wound. The scarring with the associated symptoms and signs would not resolve completely. He would need to modify his work routine should he desire to return to work as a recycling plant general worker…” (emphasis added)

14.Two points are noteworthy here. 

15.First, even Dr Wong opines that the reduced grip power “was likely to be due to under-performance”.  This is in fact consistent with Dr Ko’s opinion about the plaintiff’s manipulation and exaggeration or magnification of his weakness.  When asked if he has any comment on Dr Wong’s such opinion, the plaintiff’s answer was that he disagreed with his own expert, but could not provide any reason why Dr Wong would have such opinion.  I see no reason why Dr Wong’s opinion would be biased or not honestly held.  On balance, based on Dr Wong’s such opinion and its consistency with Dr Ko’s, I find that the reduced grip power was indeed because of the plaintiff’s under-performance. 

16.Second, Dr Wong’s opinion of the plaintiff’s reduced working capacity is based on the plaintiff’s complaint of “the pain and numbness on exertion and movement of his wrist, as well as tenderness on and around the scar”.  Such complaint is subjective.  There is no explanation from Dr Wong as to why, absent any structural deficit or damage, there would still be such complaint. Nor is there any basis for Dr Wong to say that the pain and numbness on exertion and movement of his wrist, as well as tenderness on and around the scar must be sequelae of such injury.  I express the same concern in the present case, as has been expressed by the other courts in the past concerning Dr Wong (Gurung Kamala v Hong Wei Ltd, DCPI 1660/2010, 26 March 2012 at paragraphs 76-77; Bokhim Dil Kumar v Dragages Hong Kong Ltd & Anor [2020] HKCFI 3136 at paragraphs 29-31), that his approach towards the genuineness of a plaintiff’s complaints is unsatisfactory, and has failed his duty as an independent expert to this Court.

17.The plaintiff also alleged that after his sick leave ended on 2 July 2019, he still had on an off pain and weakness so much so that it affected his work – he alleged that he could not lift heavy objects and thus he could not be fully employed as a fork-lift truck operator.  I reject his allegation because if he were right, then he would have seen a doctor a long time ago, but he did not after 2 July 2019.  He said that because he was not fluent in Cantonese, he found it difficult to talk to a doctor.  However, it is his evidence that his daughter, aged 16, was born in Hong Kong, received education in Hong Kong, fluent in English, and types Chinese for him on the phone.  His evidence is that when he was admitted to hospital after the Accident, his daughter was with him to type the Chinese messages reporting his conditions to a representative of Sunny Success.  I see no reason why he could not rely upon his daughter again if he really suffered such pain and weakness.

18.In fact, in June 2019, the plaintiff already sent Chinese messages (allegedly typed by his daughter) to the representative of Sunny Success asking when he should work.  If he really suffered the pain and weakness as alleged, he would not have sent such messages.  If his conditions were such that he felt he could work in June 2019, I see no reason why his conditions would become worse as time went on. 

19.In the circumstances, the plaintiff’s complaints of the alleged symptoms are incredible, and I find that he did not suffer the symptoms as he complains.  Dr Wong’s opinion that such symptoms were sequelae of laceration wound then falls away.  The plaintiff has been able fully to resume his previous work after 2 July 2019.

(E) Sick leave

20.Despite their disagreement on the plaintiff’s ability to resume previous work, both of them agree that the sick leave prescribed from 20 May 2019 to 2 July 2019 (44 days) is appropriate.  Both of them also agree that the plaintiff does not require assessment by other specialists.

(F) Permanent impairment and disability

21.In respect of the plaintiff’s permanent impairment and disability, Dr Ko, having referred to the authoritative Guides to the authoritative Evaluation of Permanent Impairment (6^th ed) published by the American Medical Association in 2008, table 15-3 at p 395, table 15-32 at p 473 and table 15-33 p 474, opines that the plaintiff has not suffered any permanent impairment and disability at all.

22.Dr Wong does not refer to any textbook or the like.  He considers the scarring, tenderness, numbness, exertional pain associated with weakness, and concludes that the plaintiff suffers 2% loss.

23.Dr Wong’s opinion assumes the truthfulness of the plaintiff’s complaints, which I have rejected above.  Further and in any event, even assuming the plaintiff’s complaints to be true, the basis (if any) for Dr Wong to come to the 2% loss is unclear.  Thus, I prefer Dr Ko’s opinion that the plaintiff has not suffered any permanent impairment and disability at all.

(G) Conclusion

24.In assessing their expert opinions, I place more weight on opinions based on objective evidence (namely, absence of structural deficit and damage, and the outcome of the Jumar hand grip test showing exaggeration and under-performance) over opinions based on subjective evidence (namely, pain and numbness).  Therefore, I prefer Dr Ko’s opinion.

25.In terms of the credibility of the plaintiff’s evidence, given my finding that he showed features of obvious exaggeration and magnification of his alleged symptoms in the joint medical examination, I would prefer more objective and/or independent evidence rather than his evidence where there is conflicting evidence.

THE EXTENT OF THE INJURY SUFFERED BY PLAINTIFF

26.In the premises, the extent of the injury suffered by the plaintiff is that he (1) suffered a 3-cm laceration wound over right medial volar aspect of wrist, with depth of the wound to the subcutaneous tissue; and (2) had his wound healed and stitches removed on 4 June 2019. 

27.Based on the above, I further find that the plaintiff has fully recovered without any sequelae since the end of his sick leave on 2 July 2019.

THE PLAINTIFF’S ABILITY TO RESUME WORK

28.As the plaintiff has fully recovered since 2 July 2019, he should, accordingly, have been able to resume his previous work since 9 July 2019, as opined by Dr Ko, whose evidence I prefer.

MONTHLY INCOME OF THE PLAINTIFF PRIOR TO THE ACCIDENT

29.In his Application Form in the EC Action and the Revised Statement of Damages in the PI Action, the plaintiff alleges that he had been earning from Sunny Success HK$21,450 per month prior to the Accident.  In his evidence, the plaintiff alleges that he had been earning from Sunny Success HK$21,840 per month.  There is no documentary evidence showing how much he had been earning from Sunny Success.  He chose not to answer to the question why his income from Sunny Success was not reported to the Inland Revenue Department.

30.When asked how he came to the figure of HK$21,000 odd, first the plaintiff said that his wage was HK$700–800 per day, and it was based on this that he worked out this figure.  But then, when he was asked whether he worked every day for the whole month, the plaintiff said that there would be public holidays.  If that were the case, then even assuming that he only had Sundays as public holidays, then his monthly income should be HK$800 x 26 = HK$20,800 only.

31.Thus, I find this evidence incredible. 

32.In the circumstances, I can only rely on the statistics collected by the Government.  According to the Census and Statistics Department, the average monthly salary of a general worker was HK$12,632 for 2019.  I will adopt this figure as the monthly income of the plaintiff prior to the Accident.

33.Related to that is the plaintiff’s claim for loss of MPF.  There is no evidence that Sunny Success had been contributing to P’s MPF.  Nor is there any evidence of the plaintiff opening MPF’s account.  On the contrary, according to the record of the Mandatory Provident Fund Schemes Authority, the plaintiff has no MPF account at all.  On the evidence, I find that the plaintiff’s employment by Sunny Success did not have full legal compliance, and no MPF was ever paid in the employment.

AMOUNT OF PRE-TRIAL LOSS OF EARNINGS

34.As mentioned above, both experts agree that sick leave prescribed from 20 May 2019 to 2 July 2019 is appropriate.  There are in total 44 days in total.

35.Thus, the pre-trial loss of earnings is HK$12,632 / 30 x 44 = HK$18,526.93.

AMOUNT OF LOSS OF FUTURE EARNINGS

36.I have found that the plaintiff has been able to resume his previous work since the end of his sick leave on 2 July 2019.  Therefore, he has not suffered any loss of future earnings.

EXTENT OF LOSS OF EARNING CAPACITY

37.Similarly, on my finding that he has been able to resume his previous work since the end of his sick leave on 2 July 2019, the plaintiff has not suffered any loss of earning capacity.

AMOUNT OF PSLA

38.The injury was a 3-cm laceration wound over right medial volar aspect of wrist, with depth of the wound to the subcutaneous tissue.  He had his wound healed and stitches removed on 4 June 2019.  No structural deficit and damage was caused.  The injury was minor.  The injuries in the cases referred by the plaintiff’s counsel (Mr Charles Chan) (Khan Sujad v Ho Ho Kwong, DCPI 339/2004, 23 February 2005; Gurung Krishna Jang v Precious Swine Limited, HCPI 486/2009, 16 November 2010; 施仲霖對許耀棠, DCPI 1541/2020, 31 January 2021; Hussain Kamran v Khan Amar & Anor, HCPI 953/2012, 13 November 2014) were far more serious than the present one.  I think the cases referred to by Fund Board’s counsel (Ms Flora Lam) (Chan Sai Chiu v Ching Yan Cheuk, DCPI 2336/2011, 5 June 2013; Wu Duo v Hui Sin Yi [2021] HKDC 1048 and Ng Yuk Shing v Liu Chun Kei & Anor [2020] HKCFI 340) are more appropriate.  Having considered these case, I award HK$50,000 as PSLA.

AMOUNT OF SPECIAL DAMAGES

39.The plaintiff claims medical expenses of HK$8,000 and travelling expenses of HK$6,000. 

40.The plaintiff has disclosed only two medical receipts, one issued by Tin Shui Wai (Tin Yip Road) Community Health Centre on 30 May 2019 for HK$19 and the other issued by TMH Ambulatory Care Centre for HK$80.  It is not surprising given that the plaintiff was receiving Comprehensive Social Security Assistance, under which he did not have to pay medical fees to the hospital. 

41.In the circumstances, I find that the medical expenses he paid was HK$99.

42.The plaintiff has provided no documentary evidence as to his travelling expenses.  He said that the hospital was near his home.  According to him, he either sometimes walked to the hospital or more often take Light Dock Rail. The amount of such travelling expenses would not be as much as HK$6,000.  I think HK$150 is appropriate

SUMMARY OF PI QUANTUM

43.In summary, the quantum are:-

(1)  PSLA: HK$50,000;

(2)  Pre-trial loss of earning: HK$18,526.93;

(3)  Medical expenses: HK$99;

(4)  Travelling expenses: HK$150;

(5)  Total: HK$68,775.93.

AMOUNT OF COMPENSATION IN EC ACTION

44.In respect of section 9 compensation, given my finding above that he (1) suffered a 3-cm laceration wound over right medial volar aspect of wrist, with depth of the wound to the subcutaneous tissue; (2) had his wound healed and stitches removed on 4 June 2019; and (3) was able fully to resume his previous work on 2 July 2019 (44 days after the Accident), I am not satisfied that the plaintiff has suffered any loss of earning capacity.  Therefore, there is no award of section 9 compensation to the plaintiff. 

45.Also, in this regard, given my such finding, I dismiss the plaintiff’s notice of appeal against the Form 7.

46.In respect of section 10 compensation, as explained above, I do not accept the plaintiff’s evidence in relation to his monthly income.  In the circumstances, by virtue of section 11 compensation, I should also adopt the figure from the Census and Statistics Department, that is, HK$12,632.  Thus, the amount should be HK$12,632 x 44/30 x 4/5 = HK$14,821.55.

47.As regards section 10A compensation, it should be HK$99 as found above.

48.In the circumstances, the total award in the EC Action should be HK$14,821.55 + HK$99 = HK$14,920.55.

COSTS AND INDEMNITY BASIS IN THE PI ACTION

49.As indicated at the end of the oral closing submissions, I will make a costs order nisi.  However, I think it necessary to explain the basis of the costs order nisi I am going to make as between the plaintiff and the Fund Board.  The usual position of the Fund Board is that there be no order as to costs between a plaintiff and it, an order Ms Lam asks me to make also in the PI Action.

50.I am afraid I have to disagree with Ms Lam’s generous position on costs.  I think the plaintiff should pay the costs because:-

(1)  The plaintiff’s claim is grossly excessive.  In his Revised Statement of Damages in the PI Action, he seeks HK$2,210,496.20, while now he is awarded HK$68,775.93 only, which is approximately only 1/32 of his claim. 

(2)  Thus, in this assessment of damages, the real contention being as between the plaintiff and the Fund Board joined to ensure its fund would be used to pay compensation no more than necessary and justified, the plaintiff is for all practical purposes a loser given my conclusions above.

(3)  I see no reason to depart from the general rule that costs should follow the event.

(4)  The policy reason is to encourage plaintiffs, even in cases where the Fund Board has joined, should properly assess their claims for damages, rather than being led to think that they would not have to pay the costs of the Fund Board, while the Fund Board has to spend essentially public money on arguing against unmeritorious claims for excessive sums.

51.As regards the basis for taxation, I do not see any reason to depart from the usual rule that where the plaintiff dishonestly exaggerates a claim: see Lai Sin Yan Elsie v Tata Communications (Hong Kong) Ltd [2020] 4 HKLRD 363 per Bharwaney J at paragraphs 5-10.  This rule does not depend on who is the receiving party.  The rule, rather, arises from the Courts’ extreme displeasure (put mildly) caused by such dishonest exaggeration, as explained by Moses LJ in South Wales Fires and Rescue Service v Smith [2011] EWHC 1749 (Admin) (cited in Lai Sin Yan Elsie v Tata Communications (Hong Kong) Ltd, at paragraph 7):-

“[2] For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation.

[3] They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims, when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not.

[4] Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability or in relation to claims for compensation as a result of liability.

[5] Those who make such false claims if caught should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice.

[6] The public and advisors must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment, which will have the knock-on effect that the lives of those tempted to behave in that way, of both themselves and their families, are likely to be ruined.

[7] But the prevalence of such temptation and those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice.”

52.These reasons, more concerning the administration of justice, are not less applicable simply because the employer is absent and the Fund Board joins. 

53.In the present case, based on my finding above, I accept Dr Ko’s opinion that “This means plaintiff’s manipulation and exaggeration or magnification of his weakness.”  The only reasonable explanation is that the plaintiff intentionally did so in order to support his exaggerated claim for the unreasonably excessive quantum.  Thus, indemnity basis should be the basis for the costs order nisi as between the plaintiff and the Fund Board.

ORDER

54.In the circumstances, in the EC Action, I order that Sunny Success do pay the plaintiff HK$14,920.55, and that the plaintiff’s notice of appeal against the Form 7 be dismissed.

55.In the PI Action, I order that:-

(1)  The Fund Board do pay (1) general damages of HK$50,000 and (2) special damages of HK$18,775.93 to the plaintiff, with the amount of the award of HK$14,920.55 in the EC Action deducted.

(2)  There be pre-judgment interest at 2% per annum on the general damages from the date of the Writ to the date of judgment.

(3)  There be pre-judgment interest at half judgment rate on the general damages from the date of the Accident on 19 May 2019 to the date of judgment.

(4)  There be post-judgment interest at judgment rate.

56.In respect of costs:-

(1)  In the EC Action, I order that Sunny Success do pay the plaintiff costs of the EC Action (including any costs reserved) to be taxed if not agreed, with certificate for counsel.

(2)  In the PI Action, I make a costs order nisi that:-

(a)  Sunny Success do pay the plaintiff costs of the assessment of damages (including any costs reserved), to be taxed if not agreed, with certificate for counsel;

(b)  Sunny Success do pay the Fund Board costs of the assessment of damages (including any costs reserved), to be taxed if not agreed, with certificate for counsel;

(c)  The plaintiff do pay the Fund Board costs of the assessment of damages (including all costs reserved), to be taxed if not agreed, on an indemnity basis, with certificate for counsel; and

(d)  For the avoidance of doubt, the Fund Board be at liberty to choose either (b) or (c) or both of them, subject to the rule against double compensation.

57.It remains for me to thank Ms Lam for her assistance to me in relation to the quantum in the EC Action upon my invitation, although her client the Fund Board is not a party to the EC Action.

Mr Charles Chan, instructed by M.C.A. Lai Solicitors LLP, for the plaintiff of DCPI2437/2020 and for the applicant of DCEC367/2020

The 1^st defendant of DCPI2437/2020 and the respondent of DCEC367/2020 was not represented and did not appear

Ms Flora Lam instructed by Cheng, Yeung & Co., for the 2^nd defendant of DCPI2437/2020