Siu Ming Man v. Sunrise Construction Ltd and Others
Read the full judgment text of DCEC 820/2002 on BabelCite. This District Court judgment was delivered on 5 December 2003.
1. The applicant used to be employed by the 1st respondent as a general worker in the West Rail Construction Site at Pat Heung, Yuen Long. The 1st respondent was a sub-contractor of the 2nd respondent and the 2nd respondent was the principal contractor of the site. On 3rd October, 2000, the applicant suffered an accident at work. He went to Yan Chai Hospital ("Yan Chai") and was transferred to Princess Margaret Hospital ("PMH"). He was diagnosed to have suffered a fracture to his left fibula. A
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DCEC000820/2002 DCEC820/2002 IN THE DISTRICT COURT OF HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 820 OF 2002 ____________________________________ IN THE MATTER OF AN APPLICATION BETWEEN
___________________________________ Coram: His Honour Judge L. Chan Date of hearing: 18 to 21 November 2003 Date of handing down judgment: 5 December 2003 __________________________ J U D G M E N T __________________________ Background 1.The applicant used to be employed by the 1st respondent as a general worker in the West Rail Construction Site at Pat Heung, Yuen Long. The 1st respondent was a sub-contractor of the 2nd respondent and the 2nd respondent was the principal contractor of the site. On 3rd October, 2000, the applicant suffered an accident at work. He went to Yan Chai Hospital ("Yan Chai") and was transferred to Princess Margaret Hospital ("PMH"). He was diagnosed to have suffered a fracture to his left fibula. A plaster cast was done on his left leg. He was then hospitalized for 4 days, discharged and then treated as an outpatient. The fracture healed uneventfully. 2.On 25th January, 2001, he went back to Yan Chai and was diagnosed to have suffered a fracture at the neck of the left femur. He had an operation on 30th January, 2001 and was hospitalized until 20th February, 2001. 3.There is no dispute that the applicant encountered an accident at work on 3rd October, 2000 and suffered a fracture to his left fibula. The disputes are on how the accident actually happened and whether the fracture of the neck of the left femur was the result of that accident at work. Evidence of the applicant and his wife AW1 the applicant Siu Ming Man 4.The applicant gave evidence orally and did not adopt his witness statement as evidence in chief. He said he was born on 29th July, 1944 and came from the Mainland to Hong Kong in 1977. He had since then been making a living as a construction general worker. In September, 2000, he was earning $600.00 per day as a general worker of the 1st respondent and he worked 28 days per month. His monthly earnings were thus at HK$16,800. 5.On the happening of the accident, he said that in the morning of 3rd October, 2000 sometime before 11:00 a.m., the foreman one Chu Chai told him to move two bundles of steel bars from one location to another at about 60 feet away. The bars were about 1 inch in diameter and 40 feet long. There were 10 odd bars in a bundle and each bundle weighted about 2 tons. He was assisted by a crane operator in the removal. Before hoisting the bars with the crane, he had to tie up the two ends of the bundle with steel chains. He finished that shortly after 11:00 a.m. In the normal case, he would give a hand signal to the operator and the operator would hoist the bundle slightly and position it correctly. He would then leave the spot and the operator would hoist the bundle away. However, on this occasion, the operator lifted the bundle all of a sudden before he had given any hand signal. The bundle struck the front of his left leg at about 6 inches above the ankle. As a result, he fell backwards with his buttocks falling on some other cut steel bars and his hands pushing on the ground as supporting struts. He then felt a pain and numbness in the whole of his left leg extending upwards to the upper hip level. There were some abrasions to the skin on his leg. There was however no bleeding. He then rested at the scene for several 5 minutes. The foreman Chu Chai then arrived and helped him stand up. He also needed a steel bar as a walking stick to get up. Chu Chai then drove him to the site office. He stayed in the office for an hour and then took a taxi to Yan Chai. 6.At Yan Chai, he told the doctor where he was struck and an x-ray was taken of that part. The x-ray confirmed that he had a fracture of the left fibula. He also said that he felt pain at his hip, but the doctor said that there was no need to have x-ray on his hip or other parts of his body. He was given some analgesic. Since Yan Chai was very crowded, he was transferred to PMH for treatment. PMH put a plaster cast on the whole of his left leg and the foot and just exposed his toes. There was no other operation. He was hospitalized there from 3rd to 7th October, 2000 and was discharged with a pair of crutches. He returned to PMH for outpatient treatment on 5 occasions. The first four occasions were on 20th October, 10th and 24th November and 29th December, 2000, the fifth occasion was on 16th May, 2001. The plaster cast was removed on 24th November, 2000. 7.When he had the plaster cast, he could only walk with two crutches. When he wanted to put on underpants, trousers and socks, he needed help form his wife. He also needed his wife's help when walking at home. There was also pain and swelling from his left knee extending upwards to his waist. 8.After the cast was removed on 24th November, 2000, he still could not stand up, bend or walk without the crutches. There was also pain on the left side of the body from the upper hip level down to his left leg. He still needed his wife's help in putting on shorts, pants or shoes or when he had to sit on the toilet bowl. He could only walk without the crutches after recovery from the operation on his hip on 30th January, 2001 in Yan Chai. 9.He went to Yan Chai on 25th January, 2001 which was the 2nd day of the Lunar New Year. He said he had to go there for several reasons. They were the pain in his left leg, the Lunar New Year, the shortage of analgesic as he had consumed them all and his inability to walk. He already had an appointment with PMH for consultation but that was a long time in the future. He therefore went to the Accident and Emergency Department ("A & E Dept") of Yan Chai and told the doctor there that he had a plaster cast on his left leg and that his left hip was also painful. He also told the doctor that after the plaster cast had been removed, he could not walk without crutches, he felt the pain all over his left leg extending up to his left buttock. An x-ray showed that he had a fracture at the neck of the left femur. An operation was done on him in this hospital on 30th January, 2001. What he had said to the doctor who operated on him was similar to what he had said to the doctor at the A & E Dept. He was hospitalized there until 20th February, 2001. There were then 4 sessions of physiotherapy. 10.He said after the operation on 30th January, 2001, he felt much better and the injury gradually recovered. On the latest conditions of his left leg, he said that he would feel the pain when it rained or when the weather changed. The painful spots were the left hip, the mid left thigh and the middle of the front of the left leg where it was struck. He still could not walk without a walking stick. He could usually walk with a stick for 5 minutes, but 10 minutes would be the maximum. Anything more than that would result in pain. He could not work in his previous job as he could not carry weight. 11.He repeatedly emphasized that he had throughout the period from the accident on 3rd October, 2000 to the operation on 30th January, 2001 told all the doctors he had seen that he had pain for the whole of his left leg extending from the upper hip level downwards. There are however a number of medical notes and reports which supposedly recorded what he had said to the doctors who interviewed or treated him. These records contradicted what he said in evidence. The following medical notes and reports are relied on by the respondents.
12.The handwritten admission notes of the A & E Dept of Yan Chai dated 3rd October, 2000 with a time marker at 16:29 hours recorded the applicant's account that he had suffered a "fall from 2 metres this morning, left calf contusion, swollen and bruise, ... able to walk" and also that he "fell from 2 metre height, landed on left lower leg and right foot, still can work". The applicant denied of having said such thing to the doctor on his admission to Yan Chai. He insisted that he had told the doctor that his left leg was struck by a bundle of steel bars which was being hoisted and he fell backwards with his buttocks landing on some cut steel. As to the absence of any record of complaint of pain at his waist or upper leg in the report, he insisted that he had told the doctor about it and did not know why the doctor did not write it down. 13.The handwritten admission notes of the Orthopaedic Department of PMH dated 3rd October, 2000 with a time marker at 19:29 hours recorded the applicant's account of the history of the injury as "Fell from 2 metre height in construction site, stand on floor, IOD (injured on duty), developed left calf swelling and pain, able to walk, no head injury, no LOC (loss of consciousness), no back pain." There was no mention of any pain at the hip. 14.The progress sheet of PMH on the treatment to his injury on 3rd October, 2000 recorded that on 24th November, 2000, the day when the plaster cast was removed, the applicant had told the doctor attending him that he had "not much pain". The applicant denied of having said this and insisted that after the plaster cast was removed, he had told the doctor that he felt the pain from the left mid calf to the left hip and the doctor told him that he would not recover very quickly. 15.The handwritten admission notes of the A & E Dept of Yan Chai dated 25th January, 2001 with a time marker at 9:24 hours recorded the applicant's account that he had "sprained left leg 3 days ago and swelling of left ankle and can't walk" and "sprained injury on left leg after walking downstairs and twisting of left leg". The applicant denied of having said such things and had no idea why the doctor would have made such notes. 16.Counsel for the respondents referred him to some notes of Dr. Lui Wai Hee of PMH recording a conversation in a consultation on 16th May, 2001. The notes recorded that he had told Dr. Lui "he actually had left buttock pain after the injury; but he regarded that the left buttock pain was due to the left leg injury and thus, he did not mention left buttock pain". It was after the use of considerable efforts by counsel for the respondents and by the Court that he responded to the question directly and said that he had never said such thing to Dr. Lui. 17.The diagrammatic representations of his injury in these notes only showed injuries to the leg and nothing about the hip. 18.The report of a Physiotherapist and a Senior Physiotherapist of Yan Chai dated 2nd January, 2002 or 2003 said that the applicant could walk unaided after strengthening exercise commencing 12th April, 2001, but he disagreed that opinion and insisted that he still walked with a limp. 19.His expert Dr. Chan observed in the Medical Assessment dated 1st April, 2003 that in the interview on 21st March, 2003, he could walk without a gait but he held a stick. This also contradicted his evidence at the trial that he needed a stick in walking and still walked with a limp. 20.He tried to explain away these inconsistencies by saying that his punti was not fluent or proper and he had used a mixture of punti and Hakka in communicating with the doctors. In cross-examination, he said he communicated with his solicitors in punti but with a Hakka accent. He agreed that he did not have much difficulty in communicating with and understanding his solicitor. He managed to get across to his solicitor what he meant and vice versa. He could also communicate with others when he was working in the construction site. He also communicated in punti with his orthopaedic expert Dr. Chan Chi Kin and the respondents' orthopaedic expert Dr. Lee Po Chin. In re-examination, he clarified that his was assisted by his wife as an interpreter in his conversation with the solicitors and the doctors. He also conceded by saying that he could walk unaided for 10 odd steps, but if he should go any further, he feared that he might fall. AW3 the applicant's wife Yau Siu Pik 21.Madam Yau adopted her witness statements in which she said that since the applicant's injury to his left leg on 3rd October, 2000, he all along could not walk in the normal fashion. He could only walk slowly with the help of two crutches. She also said that the applicant had told the doctor at the Outpatient Department at PMH every time he went there that his left leg had swollen with redness and it was so painful that he could not walk normally. But every time, the doctor said that it was normal for him to feel the pain in his lower left limb as his left leg could not walk normally and it had to bear the weight of the upper body. She also said that there was no improvement to the applicant's pain in his leg and on 25th January, 2001, which was the 2nd day of the Chinese New Year, he felt so painful that he could not even stand and an ambulance was summoned to send him to Yan Chai. 22.She further said that she accompanied the applicant to Yan Chai and helped him explain the history of the injury to his left leg because his punti dialect was not fluent. The x-ray diagnosis then showed that he had a fracture at the left hip and a surgery was arranged on 30th January, 2001. She also denied that her husband had at his admission to Yan Chai on 25th January, 2001 told any doctor or medical personnel that he had twisted and hurt his left leg when walking down the stairs on 23rd January, 2001. Furthermore, she said that the applicant had not twisted and hurt his left leg on 23rd January, 2001. 23.In cross-examination, she said that before October, 2000, the applicant had never had any accident at work. She also maintained that since the injury on 3rd October, 2000, the applicant had all along complained of pain over the whole of his left leg from the upper hip level downwards. She had visited him when he was hospitalized in PMH for 4 days from 3rd October, 2000. She had accompanied him to PMH for outpatient treatment on 20th October, 2000, 10th November, 2000, 24th November, 2000 (when the plaster cast was removed) and 29th December, 2000 and also accompanied him to Yan Chai on 25th January, 2001 when he was admitted there. She also kept him company on 21st March, 2003 when he was interviewed by Dr. Chan Chi King. 24.Regarding the visit on 10th November, 2000, she said that the applicant had told the doctor that the whole of his left leg had swollen with redness and was painful. He had also shown the doctor the swollen part which was slightly above the knee and the redness near the foot. On 24th November, 2000 after the cast was removed, she said the applicant still complained of pain and could not walk and the doctor said that portion of the leg had broken and it would take a year to 6 months for it to recover. She also denied that her husband had told the doctor on that occasion that he had "not much pain". On the consultation on 29th December, 2000, she said her husband arrived at PMH on two crutches and could not walk unaided. He complained about the pain in the whole of his leg and the doctor did not tell him to try walking unaided. Regarding the period between 29th December, 2000 and 25th January, 2001, the applicant had a terrible pain in his left leg and had to rely on analgesic given by PMH. He went out of analgesic on about 25th January, 2001 and had to go to Yan Chai because of the terrible pain. Contrary to the report of Dr. Chan Chi King, she said that the applicant walked with a stick and with a slight limp when he was interviewed by Dr. Chan on 21st March, 2003. 25.She also noticed that the applicant had some difficulty in communication. When she heard it, she corrected the misunderstanding. She also confirmed that the doctors had no problem in communicating with the applicant. 26.Though she insisted that on all occasions when the applicant was seen by the doctors, he had complained to them that there was pain all over his left leg from the hip downwards, the medical notes and reports do not contain any such allegation. Findings on the evidence of the applicant and his wife 27.The evidence of the applicant given in Court is contrary to the notes and records of no less than 6 doctors and 2 physiotherapists. The inconsistency started with the doctor at the A & E Dept of Yan Chai who allegedly ignored his complaint of hip pain on his admission on 3rd October, 2000. This doctor also refused to have an x-ray on any part of his body save his broken left leg. The doctors at PMH were no wiser. They paid no attention to his plight over his hip. These notes and records together showed a course of treatment and recovery of his left leg, but the applicant was adamant that his pain and suffering did not improve at all until he had the surgery on 30th January, 2001. He was also adamant that he had on each and every occasion complained to the doctors about his pain at the hip, but all doctors ignored him. I cannot find any reason why these doctors and physiotherapists should have conducted themselves in the way as alleged by the applicant. The only reasonable finding I can make out of the contradictions is that the applicant has not been truthful in his evidence in Court. In order to link up the fracture at the neck of left femur with his accident at work on 3rd October, 2000, he tried to disown all that he had told the doctors and to cast doubt on the observations of the physiotherapists. I therefore reject the applicant's evidence as given in court in so far as it is at variance with the medical notes and records. 28.The evidence of the wife is more or less in line with that of the applicant. It is therefore just as unsatisfactory. She was obviously trying to assist the applicant to gainsay the notes and records of the doctors. For the same reason, I also reject her evidence as contained in her witness statements and given in court in so far as it is at variance with the medical notes and records. 29.Since I have rejected the applicant's evidence given in court and his wife's evidence given in her statements and in court, I am therefore left with the evidence contained in the notes and records of the doctors and other objective evidence like the x-ray negative. Regarding the things said by the applicant to the doctors as recorded in the medical notes and records, I do not think I should reject them as being untruthful. When the applicant was giving evidence in court, he wanted to link up his hip fracture with the 3rd October injury. But I cannot detect any similar problem in what he had told the doctors as recorded in the medical notes and records at least not until his conversation with Dr. Lui on 16th May, 2001. I find that the notes and records were accurate and showed that he was honest with the doctors. The things that he said to the doctors contain no hint that he wanted to construct a link between his fractured hip and his 3rd October injury. Expert evidence AW2 Dr. Chan Chi King 30.Dr. Chan made two reports on the applicant. He opined that the left hip injury was very likely inflicted at the accident on 3rd October, 2000. He came to this conclusion by considering the history as recounted by the applicant, the clinical examination and the x-ray negatives of the injured left hip. He gave several reasons for his view. The first reason was the history of the injury as recounted by the applicant. The applicant said that he was struck and fell on some cut steel. Dr. Chan thought that the fall had sufficient force to produce a fracture at the neck of the left femur. Regarding the suggestion of a sprain injury, he thought that it was normally insufficient to produce a fracture of the femur neck. 31.The second reason was that the symptoms of the left leg might be more severe and they overshadowed the symptoms of the hip injury initially. If the fracture of the femur was impacted, there would be little pain and it could be overshadowed by the pain of the fractured fibula. Particularly when the applicant was on non-weight bearing walking (with crutches) for about 6 weeks, the symptoms would not be obvious. Those symptoms could become obvious after the removal of the plaster cast form the leg and the resumption of weight bearing walking. 32.The next reason again was based on the applicant's evidence that he in retrospect remembered that he did feel the pain at the left hip after the accident. 33.The fourth reason stated in his report was that the neck femur fracture was an incomplete one and became complete and more symptomatic when he was on weight bearing. Dr. Chan however changed this reasoning when he gave evidence in court. He said that it was an impacted fracture rather than an incomplete fracture. If the fracture was impacted, the symptoms were minimal as there was no movement between the two pieces of broken bones. If the fracture was displaced, there would be pain on walking. The impacted fracture could have been displaced if it had not healed up and force was applied on it. If the applicant had resumed weight-bearing walking before the impacted fracture had healed up, there could be displacement. An impacted fracture, if not healed up, would become a non-union. If there is healing, there would be callus formation. This is the formation of new bone to amend the fracture. 34.In answer to a question from the Court, Dr. Chan said that if the impacted fracture should hold on for 3 months but ended up as a non-union, there would still be no callus formation. Furthermore, if there was no recovery, there was more than 50% chance of a non-union happening. He also referred to a report dated 6th November, 2003 by the Chief Operating Surgeon Dr. Wai of the Department of Orthopaedics of Yan Chai which was obtained by the applicant himself from Yan Chai. The relevant part of the report said "[t]he operative findings suggest an acute injury which may superimpose on some pre-existing conditions." Dr. Chan said that the pre-existing condition could be of pathological nature or it could be something else. 35.Dr. Chan in particular referred to an x-ray negative of the applicant showing the pelvis region including the ball and socket joints on both sides and a radiological report dated 13th October, 2003 by Dr. Mak Kin On. The report contained Dr. Mak's interpretation of this x-ray negative. The relevant parts read:
36.Dr. Chan said that he could tell from the x-ray negative that the fracture was an old one. For a new fracture, there should be significant swelling in the adjacent tissue. The presence of soft tissue calcification near the left femoral head, which was not matched with similar feature on the right, suggested an old injury to the soft tissue on the left. The most important feature however is the "sharp and smooth fracture line ... at neck of left femur." He said that for a new fracture, there would never be a sharp and smooth line of fracture but instead the fractured edges would be rugged. This sharp and smooth line was the result of a grinding process which had lasted for months so that all rugged edges of the fracture had been smoothed out. He opined that the radiological report was enough to show that the fracture was an old one. 37.There was also some discussions on a pathological report dated 31st January, 2001 on the tests carried out on a piece of broken bone taken from the fracture, but the tests were to identify pre-existing pathological malignancy like tumour or porosity in the bone and were not for the purpose of determining the age of the fracture. Both experts eventually agreed that this report did not assist them in determining the age of the fracture. 38.On the loss of earning capacity, Dr. Chan opined that the applicant could not resume his work as a construction site worker and could only take up lighter jobs like watchman, salesman, cinema usher and car park attendant. He referred to the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, 5th Edition and used the Diagnosis-based Estimates Model. He assessed the applicant's left hip hemiarthroplasty surgery as of fair results and thus considered him to have suffered 50% impairment of the lower extremity. That is equivalent to 20% impairment of the whole person. The First Schedule of the Employees' Compensation Ordinance stipulates an 80% loss of earning capacity for loss of a leg at hip. Dr. Chan therefore concluded that the applicant's 50% impairment of the left leg would translate to 40% loss of earning capacity. 39.In cross-examination, Dr. Chan said that it was very rare to have a sharp and smooth fracture line and he had not come across any such case in his 20 years of practice. He also agreed that for a patient with a fracture like that it was unusual, though not rare, but not rare for him to present himself for treatment only four months after the injury. But in most cases the fracture would have healed. It was also his clinical judgment that the applicant had a high threshold or tolerance for pain and thus could stand the pain from the movement of the impacted fracture. For calcification, he agreed that it was a phenomenon of injury to the tissue rather than to the bone. On the formation of sclerosis, which is thickening of the bone surface upon grinding and milling, he said it would take 6 months to a year for it to be significant. He observed a little sclerosis around the head side of the fracture. He agreed that if there should be non-union, even lying and moving in bed would cause some pain and there would be some pain most of the time. He explained that in imperfect impaction, there would not be growth of new bone as the blood supply would be affected. New bone formation only happened in perfect impaction. His conclusion on reading the x-ray negative was that initially there was impaction, but later on, it became non-union. He accepted that the operating surgeon was in the best position to judge whether the fracture was a recent one (acute fracture) or an old one (chronic fracture). 40.In re-examination, Dr. Chan confirmed his conclusion that it was an impacted fracture with non-union and the fracture had happened 3 to 6 months before the x-ray was taken and he could come to this conclusion simply by studying the x-ray negative. He further opined that the dislodgement should have taken place one to two weeks before 25th January, 2001 and the twist on 23rd January just focused attention to it. DW1 Dr. Lee Po Chin 41.Dr. Lee commented in his report that there was residual limitation on the movement of the left hip and limited walking tolerance. The circumstances surrounding the fracture of the left femur were however unclear. He said that it was unusual that the applicant could have tolerated the fractured femur since 3rd October, 2000. The pain in the left hip would have been unbearable even if the applicant was lying in bed, let alone walking with crutches. 42.In his supplementary report, Dr. Lee referred to the x-ray negative and observed that the bone adjacent to the fracture did not appear to be sclerotic. He was not sure as to the age of the fracture though the appearance was more compatible with a recent fracture and not a fracture of three-and-a-half-months old. He also commented that a fall from 2 metres could have produced a fracture at the neck of femur. Although the age of the fracture could not be accurately determined with the x-ray negative, the features were more compatible with a recent fracture than a three-month-old fracture. The appearance of the head and neck of the femur also did not show features typical of a dislodged impacted fracture. He concluded that the possibility for the applicant to have suffered a fracture to the neck of the left femur on 3rd October, 2000 was highly unlikely. Even if it was an impacted fracture, the pain would still have been significant. It was difficult to bear or be disregarded even if the applicant was walking with non-weight bearing on the left leg. 43.Dr. Lee was of the view that the applicant had suffered about 15% loss of earning capacity and could return to work as a light general worker that would not require a lot of walking or carrying of weights. He recommended jobs like warehouse attendant at a construction site and machine operator. 44.In his oral evidence, Dr. Lee referred to the straight fracture line as shown in the x-ray negative and said that such was indeed rare but could still be encountered. He said that an impacted fracture would dislodge in one or two weeks and would produce a lot of pain. If it should be a three-month-old fracture, there would be formation of sclerotic lines on both sides of the fracture. This would take 3 to 4 months to develop. He also said that the operating surgeon was in the best position to tell if it was an acute or chronic fracture. For an old fracture, the operating surgeon could see the bone mud produced by the grinding of the fracture ends. For an acute fracture, he would see the raw edges and honey comb appearances. On pain, he said if the bone was milling and grinding against each other, there would be severe pain. If it was a very well impacted fracture, the patient could stand or walk, but he would still feel the pain. However, if the fracture was very well impacted, there would not be any milling and grinding. In re-examination, he also accepted that if the fracture was well impacted, the pain would not be so symptomatic. 45.In answer to the questions by the court, Dr. Lee said that for a patient who suffered a fibula fracture and recovered uneventfully, he could walk without using crutches. In this case, that was about 24th November, 2000, the date of removal of the plaster cast. 46.Dr. Lee also said that if the impacted fracture was not dislodged in about six weeks, there would be a high chance that it would heal in about twelve weeks. At the end of his evidence in chief and in answer to further questions by the court, Dr. Lee said that it was quite possible that there was a pre-existing impacted fracture of the neck of femur which got dislodged when the applicant twisted his leg while walking on the stairs on 23rd January, 2001. He also opined that the age of the fracture as shown in the x-ray negative was at three to four weeks or beyond. But then it was unlikely for the fracture to have been caused by the injury on 3rd October, 2000 because the dislodgement of an impacted facture, if it should happen, would normally take place in one or two week's time and there would also be pain. He therefore thought that the most likely possibility was that it was an acute or recent fracture which dislodged shortly before 25th January, 2001. Though he came to the conclusion of an acute fracture, he was uncomfortable with the sharp and smooth fracture line shown in the x-ray negative. 47.In cross-examination, Dr. Lee agreed that there were many factors affecting the formation of sclerosis. If there was more action, the development would be earlier. It was a reaction of the bone. Furthermore, the process of grinding may produce a smooth and sharp edge in a few weeks. Finding of date of injury 48.Having reviewed the evidence of the two orthopaedic experts, I find on a balance of probability that the fracture to the neck of the applicant's left femur was caused by the accident on 3rd October, 2000. It was an impacted fracture that became dislodged sometime after 29th December, 2000. From then on, there was grinding and milling of the fractured edges which eventually produced the sharp and smooth edges. The applicant walked on the stairs and suffered a twist on 23rd January, 2001 which then focused the pain at the hip. On 25th January, 2001, he could stand the pain no more and was taken to Yan Chai in an ambulance. 49.There are several reasons for my findings above. Firstly, Dr. Lee confirmed that a fall from a height of 2 metres would produce enough force for a fracture of the neck of the femur to occur. The admission notes of Yan Chai and PMH recorded that the applicant had suffered such a fall on 3rd October, 2000. Though the Form 2 stated that he was struck by materials that were being hoisted, it was dated 3rd April, 2001 and prepared by the 2nd respondent rather than the direct employer the 1st respondent. I do not think the information contained in the Form 2 is reliable. I find the admission notes of the hospitals more reliable. 50.The next and perhaps the most important feature are the sharp and smooth fracture edges. They could have been produced by grinding that had lasted for months or for only a few weeks. Dr. Chan relied heavily on them in his conclusion of an old fracture. He had never seen such edges in an acute fracture in his twenty years of practice. The edges also made Dr. Lee feel uncomfortable in his conclusion of an acute fracture. 51.The third reason is that the applicant had to walk on crutches long after the removal of the plaster cast from his leg on about 24th November, 2000. I accept that the applicant was behaving honestly on 29th December, 2000 when he walked with crutches and showed that he needed the crutches in walking. He had not malingered at that time. The first sign of his being untruthful with the doctors was at the interview on 16th May, 2001 with Dr. Lui Wai Hee. 52.The fact that he was still on crutches on 29th December, 2000 was unusual as Dr. Lee said that he could have walked without crutches six weeks after the fracture at the fibula. He did not seem to have an unusually low tolerance for pain as he was able to go to Yan Chai by taxi all by himself after he was injured on 3rd October, 2000. The admission notes of Yan Chai and PMH showed that he was still able to walk after admission. If he had any confidence problem in walking, he could have used a walking stick for support instead of resting both shoulders on crutches which was very inconvenient. Thus, he was obviously suffering from some sort of pain or discomfort that prevented him from walking without the crutches. There was no other known cause of pain that could have affected his walking save the fractured hip. I find that the fracture was probably a fairly well but not perfectly impacted one and the pain produced from the slight movements kept him on the crutches. The fracture was dislodged sometime after his consultation at PMH on 29th December, 2000 and the pain became focused and unbearable after he had the twist and hence more displacement on 23rd January, 2001. Dr. Lee also said that it was quite possible for there to have been a pre-existing fracture that was dislodged in the twist on the stairs on23rd January, 2001. That is quite close to what I find here. 53.I also note that there was no significant sclerosis and I find that it was because the fracture was impacted, though not in a perfect manner, and there were some slight movements that prevented recovery and formation of callus or new bone. These slight movements also produced the pain that kept the applicant on crutches. 54.Regarding the report of the operating surgeon Dr. Lee Qunn-jid dated 6th August, 2003 saying that the fracture was an acute one, I note the absence of any contemporaneous report by him save some brief medical notes. He had not observed or noted the sharp and smooth fracture ends (instead of raw edges and honey comb). He did not mention if there was any bone mud resulting from prolonged grinding and milling of the fractured ends. It was most probable that the age of the fracture was not an issue that he had to determine and he did not see it necessary to consider this at the time of the operation. His report of 6th August, 2003 only referred to the presence of fracture haematoma as a support for the conclusion of an acute fracture, but both Dr. Chan and Dr. Lee agreed that the presence of haematoma is not a necessary consequence of fracture. As pointed out by Dr. Lee, any injury to the tissue and blood vessels would produce haematoma and fracture haematoma simply means that haematoma was seen inside the fracture. I therefore do not think there is sufficient material in this medical report to convince me that it was an acute fracture. I also note the change of tone in a subsequent report dated 6th November, 2003 by the Chief Operating Surgeon Dr. Wai of the same department which has been referred to above. Conclusion 55.Having found that the injury to the hip was caused by the accident at work on 3rd October, 2000, I now proceed to assess the compensation. A certificate of review of assessment by the Employees' Compensation (Ordinary Assessment) Board conducted on 23rd January, 2003 stated that the applicant should be given sick leave from 3rd October, 2000 to 15th October, 2001 and 17th October, 2001 to 24th October, 2002 (750 days) with permanent loss of earning capacity at 7%. 56.The applicant has appealed against the assessment by review at 7% permanent loss of earning capacity. Both experts took the view that the applicant can only assume light duties in construction or other industries. That would have a significant effect on the amount of wages the applicant can earn in future. I am of the view that 7% is indeed too low an assessment. I would also consider Dr. Lee's assessment of 15% being too low as that is based on assessment of limitation of movement rather than ability to produce income. On the other hand, I also think that Dr. Chan's assessment of 40% loss being too high. I do not think it appropriate to directly translate the percentage of physical impairment into loss of earning capacity. For this reason, Dr. Chan's assessment cannot be relied upon. Doing the best I can, I am of the view that the permanent loss of earning capacity suffered by the applicant should be at 20%. 57.There is also a dispute on how much the applicant was earning before the accident. The applicant said that he was earning $600 per day. The respondent relied on an attendance card of another general worker also employed by the 1st respondent and argued that the wages should be $500 per day. Employees of the same rank may be remunerated differently. I do not think the wage information of another general worker can offer any help in determining the wages of the applicant. There is no other evidence apart from the words of the applicant and $600 per day for a general worker in a construction site is not unreasonable, I therefore accept that he was earning 600 per day before the accident. 58.I therefore order that the amount of compensation payable is :
59.I further order that interest on the sums of $270,800.00 and $3,052.00 should be at half of the judgment rate from the date of accident to the date of judgment and interest on the sum of $161,280.00 should be at the judgment rate from 25th October, 2002, the day after the expiry of the sick leave, to the date of judgment. I also make an order nisi that the respondent do pay the applicant's costs of this application with certificate for counsel and that the applicant's own costs be taxed in accordance with the Legal Aid Regulations.
Representation: Present : Mr. Timon K.L. Shum, Counsel instructed by Messrs Chow, Griffiths & Chan for Applicant. Mr. John Wright, Counsel instructed by Messrs Hastings & Co. for 1st and 2nd Respondent. |