Naseem-abbas and Another v. Rising Aerial Platform Company Ltd and Others

HCPI 400/2019 and HCPI 406/2019

[2024] HKCFI 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 400 OF 2019 and PERSONAL INJURIES ACTION NO 406 OF 2019

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(CONSOLIDATED BY THE ORDER OF MASTER ROY YU DATED 6^th JANUARY 2021)

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J U D G M E N T

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Background

1.The 1^st and 2^nd Plaintiffs (“P1” and “P2) were employed by the 1^st Defendant (“D1”) as scaffolders.  The 2^nd Defendant (“D2”) was the principle contractor who subcontracted scaffolding works to D1 at the construction site where the accident occurred^[1](“the Site”).  The 3^rd Defendant (“D3”) is the insurer of D1. 

2.On 11 June 2019, P1 and P2 were instructed by D1 and/or D2 to dismantle the aluminium scaffoldings at the Site.  While they were working at height, the scaffoldings collapsed.  As a result, P1 and P2 fell from a height of approximately 16 feet onto the ground.  (the “Accident”). 

3.Judgment on liability was entered against D1 and D2 respectively on 26 October 2022 and 8^th February 2023^[2]. 

4.D1 and D2 were absent at trial.  D3 disputed on quantum. 

The injuries

P1

5.P1 was born on 8 August 1977.  He was 41 years old at the time of the Accident and is now 45 years old. 

6.He was admitted to the Accident & Emergency Department (“A&E”) of Tseung Kwan O Hospital (“TKOH”).  The report of the A&E of TKOH dated 23 August 2019 recorded as follows:

“This was a case of injury on duty. The above-named patient fell from height of 9 feet at 5pm on 11/6/2019. He sustained right forearm injury and chin laceration. He had no pain over chest, abdomen, pelvis or legs.

Medical examination revealed the following:

His vital signs were stable.  He was fully conscious.  There was a 1 cm laceration over the chin.  There was mild bleeding from both nostrils.  His right forearm was tender.  The radial pulse was strong with no neurovascular deficit.  The chest was clear on auscultation.  Heart sounds were normal.  The abdomen was nontender.  No deformity or tenderness was noted on the spine.”

7.P1 was admitted to the Department of Orthopaedic & Traumatology (“O&T”) of TKOH on the same day.  X-ray of right elbow showed fracture of ulnar proximal shaft with mild displacement.  Computed tomography of right elbow on 19 June 2019 showed right Monteggia fracture dislocation.  Chin laceration was repaired under local anaesthesia on 11 June 2019.  Open reduction and fixation with plating to right ulna was done on 20 June 2019. 

8.P1 was examined by the Department of Ear, Nose & Throat (“ENT”) of TKOH on 18 June 2019.  Nasal profile was straight and no obvious deformity was noted.  There was mild skin abrasion over right altar.  On palpation there was no bony tenderness.  Anterior rhinoscopy showed deviated nasal septum to the right but there was no septal hematoma.  Flexible nasoendoscopy was unremarkable and there was no infraorbital numbness.  There was fracture nasal bone and septum but not external deformity. 

9.P1 was discharged from TKOH on 21 June 2019. 

10.P1 attended the Occupational Therapy Department of TKOH on 3 July 2019.  He was applying a long arm cast and arm sling over right upper limb.  He complained of pain over his right proximal forearm, pain over ulnar side of right wrist and numbness over dorsal side of his right index finger to little finger.  Swelling was noted over right all fingers.  He was able to make a loose fist with right hand.  Poor active fingers extension was noted over right index finger to little finger with 85^o extension lag at metacarpal phalangeal joints level which might be limited by the cast.  He also showed no active right thumb extension and abduction.  He was able to perform thumb opposition to right finger and little finger pulps clumsily.  Passive range of motion over right hand fingers were full.  Right shoulder active range of motion (“AROM”) was normal. 

11.P1 attended the Department of Physiotherapy of TKOH on 16 July 2019.  He complained of right wrist pain with pain level at 6 out of 10 on Numeric Pain Rating Scale.  He was on right long arm slab with sling.  AROM of right shoulder flexion / abduction were 90^o/90^o. Right fingers flexion was up to ½ range.  On 30 July 2019, AROM of right shoulder flexion / abduction were 100^o/100^o. 

12.P1 was seen by Dr Chester Lie on 31 July 2019.  Dr Lie recorded that there was mild tenderness over scar over right forearm, right elbow range of motion 45^o – 100^o, tenderness over ulnar writ with some stiffness.  There was still fracture over proximal radius bone with satisfactory reduction and fixed with metal plate and screws.  There was also fracture over ulnar styloid with small fragment. 

13.P1 was seen at O&T of TKOH on 2 September 2019 with right elbow range on improving trend, 30^o – 120^o.  He was also seen by ENT of TKOH on 2 September 2019.  Deviation of nasal septum to the right side was noted with congested inferior turbinate and the right inferior turbinate was touching the septum.  Clear nasal discharge was noted. 

14.P1 consulted Dr Chester Lie on 9 October 2019.  The right elbow range was 40^o – 130^o.  There was mild tenderness over right ulnar styloid.  There was good healing over ulnar fracture, ulnar styloid fracture was stable. 

15.On 12 December 2019, Dr Chester Lie recorded that there was good improvement.  There was no pain at right elbow and wrist but mainly weakness.  Right elbow range of movement was 15^o to 130^o.  Right wrist movement was nearly full range.  There was mild left upper arm pain.  Fracture over right proximal radius and ulnar styloid healed well. 

16.Septoplasty with submucous resection of septum and bilateral turbinate reduction was performed on P1 at United Christian Hospital on 2 January 2020.  P1 reported improvement of nasal obstruction on 21 January 2020.  Physical examination revealed crusting of inferior turbinate remnants.  The septum was straight. 

17.P1 consulted Dr Chester Lie on 23 January 2020.  There was further improvement.  He had very mild pain only.  Elbow range improved to 5^o – 140^o.  The impression was that maximal medical improvement is approaching.  Dr Lie recorded that P1 was “fit for resume work and MAB after sick leave end on 17/2/20”. 

18.P1 was granted a total of 310 days of sick leave from 11 June 2019 to 15 April 2020. 

19.P1 was examined by Dr Wong Chin Hong, the single orthopaedics expert jointly nominated by P1, P2 and D3 on 14 July 2020.  The single joint expert report dated 26 August 2020 was compiled with respect to P1 in which Dr Wong expressed the following opinions:

(1)  Diagnosis: The Accident caused chin laceration, Monteggia fracture dislocation of P1’s right ulnar with ulna styloid fracture, nasal bone fracture, left forearm abrasion and soft tissues contusion / sprain injuries to his left low eye, left shoulder and low back;

(2)  Present Condition: P1 has reached the stage of maximal medical improvement and does not require further medical or surgical intervention;

(3)  Return to work: Dr Wong opined that:

“The assessment was done 13 months after the injury. Mr Naseem still complains of intermittent pain in his right elbow which is worse with movement and exertion, associated with reduced range of movement and weakness. The fracture of his right ulna had united radiologically in good alignment with implant in situ. The radial head remains reduced. The surgical wound had healed well. There is residual mild local tenderness with reduced range of movement in his right elbow. The tenderness and pain would improve further with time but would not resolve completely. He would need to allow frequent rest (e.g. at 30 minutes interval) from heavy manual work (e.g. repeated lifting of > 10 kg) involving his right forearm should he desire to return to work at the construction site. He would also be suitable for alternative jobs which do not demand repeated exertion with his right forearm such as process worker, petty office assistant or courier.”

(4)  Whole person impairment: 5%;

(5)  Sick leave: Sick leave from 11 June 2019 to 15 April 2020 is justifiable and adequate. 

P2

20.P2 was born on 7 July 1986.  He was 32 years old at the time of the Accident and is now 36 years old. 

21.P2 was admitted to A&E of TKOH.  According to the report of A&E of TKOH dated 23 August 2019:

“Alleged injury on duty. Patient fell from 6 meters height. He reported that his right leg was trapped by metal object for 1 – 2 minutes after the fall. He also complained of mild left trapezius pain. He denied any other injuries.

Medical examination revealed the following:

There was no wound or haematoma noted over scalp. Chest wall was non tender. Abdomen was soft and non tender. Pelvis was stable and non tender. Cervical, thoracic and lumbar spine was non tender. Per rectal examination revealed normal anal tone, grip and sensation. 2 cm deep laceration was noted over right distal leg. Compartment was soft. Dorsalis pedis pulse was strong. Distal neurovascular examinations were normal. Capillary refill was less than 2 seconds.

Investigation results included:

Cervical spine x-ray revealed no fracture.  Chest x ray was clear, no pneumothorax was noted.  Pelvis XR revealed no fracture.  Right leg X ray revealed tibial shaft fracture.  Bedside ultrasonography revealed no intra-abdominal free fluid.”

22.P2 was admitted to O&T of TKOH on 11 June 2019.  Physical examination revealed 3 x 5 cm laceration over medial calf.  X-ray showed right tibial shaft fracture.  Wound exploration with casting was done on 13 June 2019.  He was discharged on 17 June 2019. 

23.P2 had physiotherapy at Tuen Mun Hospital (“TMH”) on 21 June 2019.  He stated that there was pain over his right mid shin with intensity 5 out of 10 in Numeric Pain Rating Scale.  Walking tolerance was 10 steps.  He was put on long leg cast over his right lower leg.  He could walk with frame with non-weight bearing over his right leg with satisfactory stability. 

24.P2 was seen by Dr Fong Chi Ming for 12 times from 17 August 2019 to 24 June 2020.  On 17 August 2019, P2 walked with frame.  He was on long leg right lower limb cast.  Previous wound healed with some scab and was not infected. 

25.On 2 April 2020, P2 still complained of pain over right leg on weight-bearing.  He presented with AROM of 0 - 110° in right knee flexion.  The muscle power over right knee was graded 4/5.  He failed to perform squatting.  His standing tolerance was 15 minutes.  His walking tolerance was 15 minutes with an elbow crutch. 

26.On 24 June 2020, P2 was examined by Dr Fong Chi Ming.  He claimed that his right shoulder pain intensity was the same as that of right leg pain, and he needed to take regular analgesic for pain at both regions.  He had 30 minutes of leisure walk in the morning and 30 minutes of leisure walk in the evening, otherwise he was home bounded.  He walked with single elbow crutch.  Right knee AROM was 0 - 100°.  Right shoulder abduction was 150°, forward flexion 150°. 

27.P2 was granted a total of 486 days of sick leave from 11 June 2019 to 8 October 2020. 

28.P2 was examined by Dr Wong Chin Hong, the single orthopaedics expert jointly nominated by the P1, P2 and D3, on 14 July 2020. 

29.The single joint expert report dated 20 August 2020 was compiled with respect to P2 in which Dr Wong expressed the following opinion:

(1)  Diagnosis and causation: The Accident caused compound fracture to his right tibia and soft tissue contusion / sprain injury to his left shoulder.  The extent of the injuries was consistent with the history and mechanism of the Accident.  The causation of his right shoulder pain is unclear due to lack of record on the status of his right shoulder in the initial medical records.  It is nevertheless plausible that he had sustained soft tissues contusion / sprain injury to his right shoulder during the fall, with the pain aggravated by the use of walking aid as he recovered from his right tibia compound fracture;

(2)  Present Condition: P2 has reached the stage of maximal medical improvement and does not require further medical or surgical intervention;

(3)  Return to work: Dr Wong opined that P2’s ability in prolonged walking / standing and walking on stairs while carrying heavy weight would be impaired.  He would need to modify his work to avoid repeated climbing of stairs and prolonged walking / standing (e.g. for more than 30 minutes) should he desire to return to work at the construction site.  He would be suitable for alternative work such as process worker, petty office assistant or security watchman;

(4)  Whole person impairment: 5% [D/537/52];

(5)  Sick leave: Sick leave from 11 June 2019 to 8 October 2020 is acceptable and adequate. 

Issues

30.In the opening submission of Mr Leon Ho, counsel for D3, he indicated that D3’s position on quantum is as follows:

P1

	Head of Damages	P1	D3 (Primary)	D3 (Fall Back)
(1)	Pain, Suffering, Loss of Amenities (“PSLA”)	$275,000
(2)	Pre-trial loss of earnings	$783,846	$342,067.32	$534,410.06
(3)	Future loss of earnings	$2,044,334	$0	$707,618.67
(4)	Loss of earning capacity	$100,000		0
(5)	Special damages	$10,000
(6)	Less compensation received	($322,158.64)
(7)	Total before interest	$2,891,021	$404,908.68	$1,204,870.09

D3 agreed that:

(1)  the appropriate award of PSLA is $275,000;

(2)  P1 is entitled to 12 months of full loss of earnings calculated at $27,148.20 x 12 = $342,067.32; and

(3)  The amount for special damages is $10,000. 

P2

	Head of Damages	P2	D3 (Primary)	D3 (Fall Back)
a.	PSLA	$350,000
b.	Pre-trial loss of earnings	$1,207,499	$647,940.24	$1,049,627.31
c.	Future loss of earnings	$4,612,488	$0	$2,605,944.67
d.	Loss of earning capacity	$150,000
e.	Special damages	$10,000
f.	Less compensation received	($638,376)
g.	Total before interest	$5,691,611	$519,564.24	$3,527,195.98

D3 agreed that:

(1)  the appropriate award of PSLA is $350,000;

(2)  the 2^nd Plaintiff is entitled to 18 months of full loss of earnings calculated at $(34,496.68 + 1,500) x 18 = $647,940.24;

(3)  the 2^nd Plaintiff is entitled to loss of earning capacity of $150,000;

(4)  the amount for special damages is $10,000. 

31.The disputed items are therefore pre-trial loss of earnings and future loss of earnings. 

32.Regarding P1, it is also D3’s position that should the court find that he cannot resume to work as a scaffolder but can only work as a security guard, P1 should not be allowed any damages on loss of earning capacity as a security guard is not required to perform frequent heavy lifting. 

Evidence

33.P1 and P2 testified at trial.  Mr Ho cross-examined both of them extensively and in particular, by referring them to their respective medical notes and records prepared by treating doctors at different stages after the accident.  It is D3’s case that both of the plaintiffs are exaggerating their injuries. 

34.For P1, Mr Ho suggested that there are inconsistencies in his evidence in that, firstly, the condition of his right arm injuries was much better as recorded by treating doctors than that before Dr Wong; and secondly, P1 had never mentioned certain conditions (numbness, severe pain and pain affecting sleep) he allegedly suffered to the treating doctors or Dr Wong. 

35.Mr Ho suggested that P1 had exaggerated his injuries and he is capable of resuming his job as a scaffolder. 

36.For P2, Mr Ho queried about the genuineness of P2’s alleged injury on his right shoulder as the alleged injury has not been recorded on any medical records.  Mr Ho emphasized that P2 said he reported his injury on his right shoulder to the doctors either by himself or through his friend on different occasions and even pointed his right shoulder to the doctor but curious enough there was no record of any injury on P2’s right shoulder by any doctor. 

37.Similarly, Mr Ho also suggested that P2 can resume to work as a scaffolder. 

Discussion

38.Since August 2020, P1 has been employed as a security guard at a construction site in Stanley.  He is earning $500 per day for 26 to 28 days per month.  However, according to him, the project will end in June 2023 and he was told that he will then be laid off.  P1 said in his evidence that he cannot return to work in a construction site as either scaffolder or general labourer as no one would hire a worker who has to rest for 20 to 30 minutes after performing strenuous manual work, which is required for both kinds of work, for 15 to 30 minutes. 

39.As mentioned above, it is the opinion of Dr Wong that P1’s tenderness and pain on his right elbow would improve further with time but would not resolve completely. Because of this, P1 needs to have intermittent rests in performing heavy manual work. 

40.As submitted by Mr Wright, counsel for the plaintiffs, Dr Wong had taken into account all records of the treating doctors in arriving at his opinions.  Dr Wong opined that P1 did suffer tenderness and pain.  Although there is no record of P1 complaining he suffered “numbness” and “severe pain”, P1 had all along complained that he suffered pain or mild pain and the pain increased upon his lifting heavy objects. 

41.Furthermore, the exaggerations as suggested by Mr Ho on P1’s injuries are not very serious in nature, which would not add much to the quantum of damages.  P1 worked continuously after his sick leaves and I see no reason why he would not choose to work as a scaffolder should he be able to do so.  I have observed P1 giving evidence.  I am satisfied that he has no intention to exaggerate his injuries and I find that his complaints to Dr Wong are genuine. 

42.In my view, the fact that P1 needs to have intermittent rests rendered it unrealistic for P1 to work in a construction site involving heavy manual duty, which include the posts of scaffolder and general labourer. 

43.P2 has been employed as an office boy in a wholesaler of mobile phone in Tsimshatsui since October 2022.  He received a monthly salary of $12,000. 

44.The main complaint of Mr Ho against P2 is that he did not mention to the doctors about the injury of his right shoulder.  However, as submitted by Mr Wright, mild left trapezius pain was documented on P2’s admission to the A & E department of the hospital on the date of the accident.  It was also recorded that there was a language issue and the communication between P2 and the doctor was assisted by P2’s colleague.  It is likely that there was a misunderstanding as Dr Wong accepted that an injury to P2’s right shoulder was plausible. 

45.I have observed P2 giving evidence and I accept that he did not intend to exaggerate his injuries.  In any event, I am of the view that P2’s leg injury alone can make him unsuitable to resume his job as a scaffolder or general labourer in construction sites. 

Damages

46.In the premises, I find in favour of P1 and P2 regarding pre-trial and future loss of earnings and I allow their respectively claims in full. 

47.Concerning loss of earning capacity for P1, I am of the view that his injuries caused an impairment of his ability to perform in the general labour market and this court should not take into account only his competence in performing as a security guard.  Damages for loss of earning capacity is therefore also awarded. 

Order

48.Judgment be entered against D1, D2 and D3 in favour of P1 and P2 for the sum of $2,891,021 and $5,691,611 respectively with break downs set out in the tables at paragraph 30 above. 

49.I award interest on general damages at 2% per annum from the date of service of writ until date of judgment and on the special damages at 4% per annum from the date of accident until judgment.  This interest award is an order nisi which will become absolute unless any party applies to vary within 14 days. 

50.D3 chose to dispute on quantum and I see no reason why they should not bear the costs.  I make a costs order nisi that costs of P1 and P2 be borne jointly and severally by D1, D2 and D3.  This interest award is an order nisi which will become absolute unless any party applies to vary within 14 days. 

Mr Wright, John instructed by Jogn M. Pickavant & Co. for the 1^st Plaintiff and 2^nd Plaintiff

Mr Ho, Leon L.O. instructed by Au & Associates for the 3^rd Defendants