Khalid, Ali v. Megastrength Security Services Company Ltd
Read the full judgment text of DCPI 2268/2020 on BabelCite. This District Court judgment was delivered on 30 October 2023.
1. This is a personal injury claim arising from an accident allegedly happened to the plaintiff (“P”) when he was unloading a heavy suitcase of a taxi passenger from the boot during work at about 10 am on 14 November 2019 (“the Alleged Accident”).
Cited by 1 case · Cites 16 cases
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DCPI 2268/2020 [2023] HKDC 1549 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2268 OF 2020 -------------------------- BETWEEN
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-------------------------- JUDGMENT -------------------------- BACKGROUND 1.This is a personal injury claim arising from an accident allegedly happened to the plaintiff (“P”) when he was unloading a heavy suitcase of a taxi passenger from the boot during work at about 10 am on 14 November 2019 (“the Alleged Accident”). 2.About one month before the Alleged Accident on 4 October 2019, P was employed by Defendant (“D”) as a security guard, and since then he was posted at the pedestrian entrance of Three Garden Road, Central, Hong Kong. P’s duties included traffic control, helping passengers alighting from vehicles and unloading their personal belongings from the boot. 3.According to P, the Alleged Accident happened after P had lifted a heavy suitcase of a taxi passenger from the boot and placed it on the ground, he then felt severe pain in his right lower limb. 4.P attended the Accident & Emergency Department (“A&E”) of Queen Mary Hospital (“QMH”) in the afternoon of the Alleged Accident and transferred to the Department of Orthopaedic & Traumatology (“O&T”) of QMH the same day. 5.On 20 November 2019, P attended the A&E and O&T departments of Tuen Mun Hospital (“TMH”). 6.Besides, P attended 7 physiotherapy sessions at the Physiotherapy Department (“PD”) of TMH from 27 November 2019 to 27 March 2020. 7.A total of 432 days of sick leave were granted to P by various treating doctors from 14 November 2019 to 6 September 2019. 8.P’s claim against his employer the defendant (“D”) is based on the following causes of action:-
9.At the time of the Alleged Accident, P was aged 46. The total claim amount according to the Revised Statement of Damages filed on 25 November 2021 was HK$1,281,399.50 with the following breakdown:-
10.Since the commencement of action, P was all along represented by John M Pickavant & Co until after the leave to set the case down for trial was granted and P’s then solicitors ceased to act for P on 5 October 2022. Thus P attended the trial in person. 11.Parties dispute both issues of liability and quantum. P himself gave evidence in court without calling any other witnesses, while three employees of D testified in court. The joint medical expert report compiled by parties’ respective orthopaedic experts was adduced as evidence without calling the makers. ISSUES 12.D puts P to strict proof of both liability and quantum issues of the claim. In particular, D fiercely contested the happening of the Alleged Accident and averred that it did not happen to P at all. The issues framed by Mr Wong, counsel for D are as follows:-
LIABILITY The Alleged Accident 13.According to P’s viva voce evidence, immediately after the Alleged Accident P first told his colleague Mr Ali that he was in severe pain, but P did not mention to Mr Ali about the Alleged Accident. 14.P clarified in court that his statement was incorrect with regard to his report to Mr Ali of the happening of the Alleged Accident. Mr Ali only told P to go to the office to find his superior, Ms Wu[2], ie the first witness of D. 15.P then went to the office to look for Ms Wu but in vain. P met another colleague Mr Lok instead and told Mr Lok that he was in pain. Again P did not tell Mr Lok about the Alleged Accident but just that he was in pain. 16.About 15 to 20 minutes later, Ms Wu came to the office and P told her about his pain only without mentioning the Alleged Accident and requested for hospital treatment. 17.P retracted the allegation as stated in the last sentence of paragraph 18 of his own statement:-
18.P testified that Ms Wu did not give him the Incident Report on the day of the Alleged Accident but on the day after, when she was visiting him at QMH. 19.P confirmed that Ms Wu did not make P completing the Incident Report before any medical treatment to be arranged for him. 20.P further stated that such allegation was made up by Muhammad Nawaz, the Urdu interpreter of his then solicitors. 21.In short, P spoke to 3 colleagues shortly after the Alleged Accident: namely Mr Ali, Mr Lok and Ms Wu. P said repeatedly to them that he was in pain but he did not mention the happening of the Alleged Accident to any of them. When cross-examined on the reason why he did not mention the Alleged Accident, P gave the same answer — because he was not asked so he did not tell. D’s Stance On the Alleged Accident 22.D submitted that the Alleged Accident is just P’s bare assertion. P’s case is not only lacking contemporaneous evidence in support of the Alleged Accident, but also contradicted by unchallenged evidence. It is D’s case that the Alleged Accident has never happened to P at all. D contested this issue as follows:-
Whether the Alleged Accident Did Happen to P 23.It is undeniable that the happening of P’s Alleged Accident is no more than bare assertion by P which is contradicted by the evidence summarised as follows:-
24.I agree with Mr Wong that P’s explanations of his multiple failures to give an account of the Alleged Accident in various occasions are all unbelievable. 25.In particular, I do not accept his claim of misunderstanding of the word “injury”. It is totally inconceivable that he has never mentioned to any colleagues or doctors as to how the accident happened, if it did happen to him. 26.Besides, P is unable to explain his own denial of injury during work and the contradictory evidence like the Incident Report and the Notification of Accident to the Labour Department. 27.I also disbelieve P’s blame on Muhammad filling the Notification of Accident to the Labour Department for him, as P has confirmed he filled the form by himself in the first place. 28.In view of the overwhelming contradictory evidence against the P’s case, I find that the Alleged Accident did not happen to P at all. It was only a fabricated allegation. 29.Notwithstanding that P’s claim could be dismissed at this juncture with costs to D, I am going to consider the following issues if I were wrong in the above findings and for the sake of completeness Any Breach of Duty 30.If the above findings were wrong and if the accident did happen to P as alleged, the next question is whether D was in breach of employer’s duty to take reasonable care of its employee, P. 31.There is no quarrel that unloading luggage from a taxi is a simple manual task. It is always a question of fact as to whether it is necessary to prescribe a system of work in any given circumstances[7]. In view of such simple task in the present case, it is doubtful whether D is required to prescribe a system of work for unloading luggage from taxis. 32.In any event, D has provided P a copy of Employee’s Guide to Manual Handling Operation published by the Labour Department and memoranda about manual handling operation when P joined D. P does not dispute receiving the abovementioned documents either. 33.Therefore, I agree that D has discharged its employer’s duties of care to P and there is no breach of duty on D’s part. Contributory Negligence 34.If I were wrong in the above finding and if D should be liable for breach of duty, P should be contributorily negligent, as P has failed to have reasonable regard to his own safety when he undertook to lift an extraordinarily heavy luggage without seeking assistance from his colleagues. I would follow the case cited by D: Bin Yamin v Chuen Ho Construction & Engineering Co & Anor[8] to find P’s contributory negligence at 40%. QUANTUM Injuries and Disabilities 35.P pleaded in his Revised Statement of Damages filed on 25 November 2021 that P was still suffering from the following:-
36.D’s main challenges of P’s injuries in respect of quantum issue are summarised by Mr Wong as follows[9]:-
Orthopaedic Expert Evidence 37.On 25 June 2021, P attended a joint medical examination by orthopaedic experts of both parties, namely Dr Johnson Lam appointed by P and Dr Lam Kwong Chin appointed by D and the experts compiled a joint orthopaedic expert report dated 11 October 2021. 38.The experts have different opinion regarding the onset of P’s pain on the day of the Alleged Accident. P’s expert is of the view that P possibly suffered from some low back injury, aggravated by his pre-existing back degeneration causing back pain with radiation down to the right buttock and lower limb. 39.Whereas D’s expert thinks that the onset of P’s pain was caused by muscle strain or spontaneous pain due to natural progress of a pre-existing pathology. 40.Although the experts have different views in the cause, all the medical evidence before the court suggest that the pathology only confined to the left side of P, and no medical evidence could explain P’s alleged right lower limb symptoms. 41.P’s expert is unable to explain why “referred back pain” as suggested by him only caused P’s alleged right buttock pain but not causing any back pain. 42.Besides, D’s expert queried “referred back pain” being not supported by any MRI findings or any known pathology. 43.Another issue which the experts have different opinions is about P’s pre-existing conditions. P’s expert is of the view that the degenerative changes in P’s low back/spine are asymptomatic in nature and the Alleged Accident caused significant soft tissue injury to P’s low back. But for the Alleged Accident, even if P eventually develops symptoms in the right lower limb, such symptoms are likely to be milder and more occasional. P’s pre-existing degenerative conditions are thus considered to fall between category (1) and (2). Thus, P’s expert apportioned 20% of P’s present disabilities to his pre-existing conditions[10]. 44.D’s expert is of the opinion that P’s complaints of his lower limb are largely caused by the pre-existing degenerative spine problem. Even if P had not encountered any accident or trauma, his spine would continue to deteriorate. 45.Therefore, D’s expert concluded that P’s pre-existing spinal condition falls under category (2), ie there is a strong possibility that some other event or natural progression of the condition would have brought about the present condition. In conclusion, 50% of P’s present disability is apportioned to his pre-existing condition by D’s expert. 46.P has not made any submissions regarding the above differences in opinion of the experts. Mr Wong submitted that D’s expert evidence should be preferred for the following 3 reasons:-
47.Having considered the above submissions on pre-existing conditions of P and in the absence of any counter submissions from P, I find D’s submissions reasonable. Therefore, I prefer D’s expert’s apportionment of 50% and agree with D’s counsel proposed discount of 50% on the award of PSLA pursuant to Yu Wai Kan v Law Cho Tai[11]. 48.Despite the above differences in opinion, both experts do agree that P has exaggerated his conditions. D’s expert stated in the joint medical report that:-
49.Besides, after viewing the surveillance recordings of P, D’s expert found that P was “far better than what he presented to the attending doctors during consultations or at this assessment” and he thus concluded that P was obviously exaggerating[13]. 50.P’s expert also agreed that the physical findings of P were inconsistent with the genuine neurological deficit in the right lower limb lacking any objective neurological problem or objective sign. 51.P’s expert further admitted that P has exhibited some positive some positive “inappropriate signs/Waddell’s Tests”, which suggests exaggeration on the part of P. Having viewed the surveillance footages of P and considered all the evidence as a whole, P’s expert said as follows:-
Pain, Suffering & Loss of Amenity (“PSLA”) 52.Mr Wong for D cited the following 6 cases on PSLA for comparison:-
53.Having considered the above cases, I found Yip Kwok Shing v Fung Chau Tim is the most comparable case. The plaintiff Yip Kwok Shing was suffering from redness and tenderness over his lower back region caused by the defendant’s assault without bone fracture. Yip was discharged and prescribed with analgesics. $60,000 was awarded for PSLA by HH Judge Andrew Li. 54.I am satisfied that had D been found liable, the award of PSLA should be around $60,000. In view of my adoption of D’s expert opinion on pre-existing condition, there should be a 50% discount, resulting in an award of $30,000 under this head. Loss of Pre-trial Earnings 55.There is no dispute as to P’s monthly income being $18,250 at the time of the Alleged Accident. Medical experts, however, have divergent views as to the appropriate sick leave period. 56.P’s expert endorsed all sick leave certificates issued by treating doctors and considered the entire sick leave period as appropriate, ie from 14 November 2019 to 6 September 2021 intermittently for a total of 432 days. 57.Whereas, D’s expert was of the view that the sick leave period had been unduly prolonged. He considered that 3-month sick leave should be adequate for P to resume to work for a back/lower limb sprain with soft tissue involvement. 58.Suffice to say that I agree with defendant’s Opening Submissions at paragraphs 76(1)-(5) that the opinion of D’s expert should be preferred in light of P’s minor injury and therefore the appropriate sick leave period should not be more than 3 months. 59.Loss of pre-trial earnings should be calculated on the basis of the 3-month sick leave period from 14 November 2019 to 13 February 2020 as follows:
60.As both medical experts agreed that P should be able to return to his pre-accident work, P should not be suffering from any further loss of pre-trial or post-trial earnings. Loss of Earning Capacity 61.As P’s injury was minor and any residual problems would also be very mild, it is unlikely to constitute any significant impairment to his work capacity. Therefore, there is no real or substantial risk of loss of P’s employment or suffering from financial loss because of his disadvantage in the labour market at some future date during his working life[21]. 62.As such, I agree with D’s submission that no damages should be awarded under this head. Special Damages 63.P is claiming special damages consisting of $4,000 medical expenses and $1,000 travelling expenses totalling $5,000. According to the Answer to Revised Statement of Damages, D is prepared to allow $2,500 medical expenses and $500 travelling expenses “subject to documentary proof”. 64.However, P could only produce a medical receipt of $370. D has drawn to my attention that P, who has been a CSSA recipient since the Alleged Accident, was waived from medical fees in public hospitals and clinics. Therefore, only $370 medical expenses should be allowed. 65.As D has failed to produce any documentary proof for travelling expenses, only $500 agreed by D should be allowed. After adding the $370 medical expenses supported by receipt, the total sum under this head is $870. Calculation on Quantum of Damages (if any) 66.To conclude, the amount of damages (if any) should be calculated as follows:-
67.Since the advance payment of HK$108,526.66 is greater than the above total damages of HK$53,014.50, P has been over-compensated even if the liability of D could be established. Thus, P would not be entitled to any award of damages in any event. P’s claim would be dismissed either because of no further loss upon receiving the advance payment. CONCLUSION 68.In view of the aforesaid reasons and findings in paragraphs 22 to 28 and 67 above, I dismiss P’s claim in this action. COSTS 69.As costs shall follow the event, D shall pay P’s costs of the action. Besides, D is seeking indemnity costs against P for abusing the court process by making a dishonest false claim. Mr Wong has cited the following authorities in support of his submission on indemnity costs order:-
70.Having considered the above authorities and all the circumstances, I agree with Mr Wong that it is an appropriate case to impose indemnity costs order against P. 71.I therefore make an order nisi that P shall pay D’s costs of this action, to be taxed on indemnity basis if not agreed, with certificate for counsel and such order nisi shall become absolute after 14 days from the date hereof, unless parties make any applications to vary it within such time. 72.Lastly, I thank Mr Wong for his helpful assistance rendered to this court.
The plaintiff appeared in person Mr Simon Wong, instructed by Anthony Siu & Co, for the defendant [1] Contrary to ss 6(2)(a)–(d)(i)(ii) and 7(1)(b) of the Occupational Safety and Health Ordinance (Cap 509). [2] Ms Wu was referred as “Ms King” in P’s witness statement. [3] Ms Chan was referred as Mr Chan in P’s witness statement. [4] The first witness statement of Wu King King at paragraph 6 [B164] [5] Filed with the Labour Department on 16 January 2020 [B249] [6] Supplemental witness statement of Wu King King at paragraph 11 [B172]. [7] Fong Yuet Ha v Success Employment Services Limited (unreported, CACV 100/2012, 28/12/2012 at para 17). [9] Defendant’s Opening Submissions §47(1)-(3). [10] Joint Medical Report at paragraph 114. [11] [2011] HKCFI 295 (unreported, HCPI 62/2010, 11/05/2011). [12] Joint Medical Report at paragraph 93. [13] Joint Medical Report at paragraph 94. [14] Joint Medical Report at paragraph 96. [16] unreported, HCPI 632/2014, 6/7/2017. [17] unreported, DCPI 1424/2009, 15/3/2011. [18] unreported, DCPI 2627/2015, 26/6/2017. [19] unreported, DCPI 453/2008, 7/1/2009. [20] unreported, HCPI 983/2001, 1/8/2003. [21] Loss of earning capacity as defined by Browne L J in Moeliker v A Reyrolle & Co Limited [1977] 1 WLR 132. [22] [2011] EWHC 1749 (Admin). [23] [2012] 1 WLR 2004. [24] unreported, HCPI 860/2009, 19 November 2014. [28] [2021] 2 HKLRD 319. |
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