Li King Wing v. Hong Kong Air Cargo Terminals Ltd.

HCPI001038/1999

HCPI 1038/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1038 OF 1999

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Coram: Hon Beeson J in Court

Dates of Hearing: 14 to 16 November 2000

Date of Judgment: 16 March 2001

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J U D G M E N T

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1. This is a claim for damages arising out of injuries allegedly suffered by Mr Li King Wing, the Plaintiff, in the course of his employment as a warehouseman with the Defendant, Hong Kong Air Cargo Terminals Ltd.

Plaintiff's Case

2. Both liability and quantum were contested.

3. The Plaintiff claimed that he had received injuries in 2 separate accidents, the first on 16-9-96 and the second on 30-1-97. The facts of the first accident were not really in dispute. The Plaintiff was unloading cargo from a container placed on a stationary Transfer Vehicle, when the Transfer Vehicle moved unexpectedly and the Plaintiff was hit by the container and cargo which were on it. The Plaintiff was injured on his right ankle, waist and back and, at United Christian Hospital, was diagnosed to have right leg and lower back soft tissue contusion. Movement of the knee and ankle was normal, as were all X-rays. He was treated with analgesics and discharged.

4. At a follow-up visit on 18-9-96 the Plaintiff complained of persisting numbness over the dorsum of the right foot, but no motor deficit was observed. His back pain was said to be improving, although at 4 subsequent visits in September and October 1996, he was given sick leave for persistent back pain.

5. The Plaintiff returned to work in November 1996 when he was diagnosed to be fit for light work ,but this trial was not successful. The Plaintiff attended physiotherapy six times a week until about 23-1-97; he was re-called to work on 27 January 1997. It was the Plaintiff's evidence that he protested that he was not fit, but he did return to work and was assigned light duties.

6. On 30 January 1997 he said he sprained his back when he was lifting cargo. He claimed that this accident occurred because he was asked to lift an object weighing about 10kgs. He did not report this incident to anyone in authority at work, but late that night he attended the A & E Department of the Prince of Wales Hospital and was given analgesics and sick leave. The Plaintiff has never worked since that date and he contended that his initial injury was exacerbated by the sprain he suffered in the alleged second accident and that this was the fault of the Defendant for requiring him to undertake duties for which he was unfit.

7. For reasons which were not satisfactorily explained by the Plaintiff, the date of the alleged second accident in the Statement of Claim was originally given as 20-11-96. Leave to amend the date in the Statement of Claim was sought at trial and granted. The second date appeared when the Plaintiff gave his witness statement pursuant to O.38/2A. On neither date was there a record of an accident being reported to anyone in authority. No Form 2 was ever filed by the Defendant to report the injury to the Labour Department, as was done for the first accident. If, as Plaintiff claimed, he had gone to the trouble of reporting the accident I can see no reason why the Defendant would not have followed the usual procedures. There was a record produced from the A & E department of Prince of Wales Hospital, in respect of a medical attendance on the 31-1-97.

Liability

8. From the evidence it is clear that the Defendant was liable for the first accident. The Transport Vehicle was known to be out of order at the time and was being checked by an engineer. The Plaintiff's evidence and that of Mr Wong Tak-kuen, the team leader of the Export Division of the Defendant, who was working with the Plaintiff at the time, was that the Transport Vehicle began to move of its own volition while the Plaintiff and other workers were unloading cargo from it.

9. It is likely that a stopper which prevented the load becoming disengaged from the Transport Vehicle was suddenly activated, causing the load to shift forward, hit the Plaintiff in the back and trap his leg. The Defendant conceded that given the evidence it was unable to submit it was not liable for the accident that occurred on the 16-9-96 and the ensuing injuries. I find there was no contributory negligence on the part of the Plaintiff in respect of that accident.

Alleged Second Accident

10. The Defendant disputed whether the alleged second accident had ever occurred at all, either on the date originally given in the Statement of Claim, or on the amended date, and, if it had occurred, submitted that there had been contributory negligence on the part of the Plaintiff because of the manner in which he had lifted, or tried to lift, the item of cargo. If there was a second accident, it was necessary to consider to what extent, if any, there had been any exacerbation of the original injuries had occurred, as claimed by the Plaintiff.

11. When applying to amend the date of the second accident, Plaintiff's counsel submitted that the Plaintiff had given the wrong date of the accident to his solicitors and that it was only when he gave his witness statement that he realised it was wrong.

12. It was not in dispute that the Plaintiff was on sick leave on 31-1-97, the date after that given for the second accident, although in cross-examination the Plaintiff denied that was the case. There was no eye-witness to the accident which allegedly took place in working hours. The Plaintiff gave a number of slightly differing accounts of how the accident occurred and what he was doing immediately prior to the accident. He had returned to work on 27-1-97, although he said that he told the company doctor that he was not fit to do so. He was assigned light work which did not involve lifting cargo. On 30-1-97 he was told to assist in moving cargo because of a staff shortage. In his witness statement he said he injured himself lifting an item that was 2 foot x 2 foot, weighing about 10 kilos. No further details were given.

13. In examination in chief he said simply repeated what he said in his witness statement, namely that he had injured his back, without any further elaboration.

14. In cross-examination he said that while working in the small parcels department, he was squatting to lift a 10 kilo package, when the accident happened and that his back hurt. This differed from the Statement of Claim where it was stated that he 'bent down' to lift an object of 10 to 20 kilos. Later in cross-examination he said the accident occurred when he held on to a bannister rail on a conveyor belt while he 'dragged and pulled' the cargo item to clear a blockage.

15. A further modification of the incident appears in a note attached to a physiotherapy report (Agreed Bundle Page 7) which records that the Plaintiff sprained his back 'lifting a weight of 50-60 kilograms'; information presumably given by the Plaintiff.

16. He said he informed the Personnel Department, which suggested that he had informed the department immediately the incident occurred. Later he said he reported to the shift supervisor, Mr Kan as well as Mr Ko Yuk Lun of the Personnel Department "on the day of the incident", again suggesting that the Defendant had been informed immediately.

17. However it appears that the Defendant, if told at all, was not told on the day of the incident. The Plaintiff said that his shift on 30-1-97 was from 1 p.m. to 9 p.m. and he did not go to hospital until the early hours of the 31-1-97. He said it was from there that he reported the accident to Defendant. If any such report was made from the hospital, it is most unlikely that the Personnel Department would have been open in the small hours of the 31-1-97.

18. Further if the Plaintiff had been working on a shift from 1 p.m. to 9 p.m. it is improbable that the same shift supervisor was still on duty.

19. The Reply to the Request for Further and Better Particulars stated that the Plaintiff also requested the Sub-station Deputy Manager of the Defendant, Mr Tse Mei Wing to report the 2nd Accident and the Plaintiffs injuries. However that Reply stated that the report was made on or about 21 November 1996, the original date given for the 2nd Accident.

20. If, as the Plaintiff claims, he had reported an injury at work to the 3 people he claimed he had reported to, it is strange that no Form 2 was ever prepared by the Defendant in respect of this incident.

21. From relevant hospital records it appears that three doctors at the Prince of Wales Hospital who treated the Plaintiff were told that the second accident happened on the 31-1-97. That information must have come from the Plaintiff, who must be taken to have known that the date was the 30-1-97. I accept that it is just possible although unlikely, that the first doctor who examined the Plaintiff might have used the phrase 'sprained back while carry heavy object today' to refer to the day that had just gone i.e. 30-1-97, and that the other doctors followed suit without checking the matter independently.

22. On balance however I was unable to accept that a second accident occurred as the Plaintiff claimed it had. Given the Plaintiff's previous history of an accident at work and his assiduous attendance at doctors and physiotherapy thereafter, his failure to report any further accident at work immediately it occurred is inexplicable, particularly in light of his evidence that he had protested to the Defendant that he was unfit to return to work, whether for the trial period in November 1996, or in January 1997.

23. I am of the view that if there was an episode where the Plaintiff sprained his back that it did not take place at work. I did not find that the Plaintiff was a witness who inspired belief in his account of events generally and I was unable to accept any one of his accounts of what happened on 30-1-97. Accordingly I find that no second accident occurred at the Defendant's premises on 30-1-97 as claimed by Plaintiff.

24. However I accept that it is possible that the Plaintiff may have been pre-disposed to a further episode of back sprain because he had not fully recovered from the physical trauma of the first accident. In this regard I note that Dr Chu, the Plaintiff's expert, reported that the trauma of the 2nd accident had aggravated 'the still unresolved back and right lower limb symptoms significantly'. Although it appears from the medical evidence that the Plaintiff had largely recovered from the effects of the first accident it is possible that he may have been susceptible to further episodes of back pain or strain as a result of general instability resulting from the original injuries to his back and leg. There should thus be some minor adjustment to the quantum of damages awarded for the first incident to take account of that likely overlap.

Medical Evidence of Plaintiff

Dr Chu Yat Cho

25. Dr Chu examined the Plaintiff on 24-7-00. He had examined him on 15-3-99 and 20-3-00 for purposes of post-injury assessment of an insurance claim. He outlined the history of the accidents and treatment given to the Plaintiff. He appears to have been told that the second accident occurred on 31-1-97.

26. In a lengthy, but not entirely apposite, report Dr Chu assessed the Plaintiff's response to treatment after the first injury as fair and concluded that he had tried to return to work too early and sprained his back. He considered the response to treatment after the second accident was dismal and believed that the added trauma of the second accident aggravated the Plaintiff's unresolved back and right lower leg symptoms. The Plaintiff told him that his symptoms remained more or less static for 6 to 12 months after the second injury, but that they worsened progressively from early 1998 and rapidly from early 2000. Dr Chu considered that this pattern was observable from the various examinations he had done.

27. He found that the Plaintiff had a very stiff back with back function and overall physical capability being significantly impaired. X-ray examination showed the lumbo-sacral spine was normal and there was no evidence of degeneration or other abnormality.

28. In his view, whatever the cause of back pain, the ability to work decays rapidly after 6 months and if there is no return to work within 2 years of any injury, the injured worker will most likely never work again. He based this view on a 1972 study by one R. K. Beals, published in America.

29. He assessed permanent loss of earning capacity as 30% and that the impairment of the whole person as 28%. He noted that the Plaintiff had constant back and right lower limb symptom with strictly limited physical capacity and work tolerance. He believed that the Plaintiff was totally unemployable on the open job market and that the chance of his ever returning to gainful employment was very slim.

30. I refer to this report as not being entirely apposite because Dr Chu was not an orthopaedic surgeon, but a specialist in occupational medicine and it was in that light that he assessed the Plaintiff's condition. His view was that the Plaintiff would need periodic follow up at P.O.W. Hospital for years, as well as ancillary consultations e.g. Pain Clinic and psychiatric assessment. He felt that bone-setting, manipulation therapy, herbalist consultation and tonic food supplements might be sought too and estimated the cost of these to be in the region of $2,500.00 per month.

Medical Evidence of Defendant

Dr David H. F. Cheng

31. Dr Cheng examined the Plaintiff on 23-12-99. The Plaintiff complained of back pain and parasthesia of the R leg. He said he could only walk for about 15 minutes, sit for 30 minutes and stand for 20 minutes. He was seen to walk with a limp and use a walking stick in his R hand. He could squat normally but could not stand on the right leg alone.

32. The Plaintiff complained of pain all over his back on light touching. His back was stiff with minimal spine movement. Sensation was normal, muscle power was good and X-rays of the lumbro-sacral spine were normal.

33. Dr Cheng commented on the two injuries. Initially he had been led to believe that a second injury occurred on 13-10-99 and referred to an A & E report which mentioned a sprain or contusion of the back. He noted that the Plaintiff had had a protracted course of treatment after the second incident with fair results. An MRI scan on 19-6-98 showed degenerated discs at L4/5 and L5/S1, but no nerve compression.

34. He concluded that it was likely that Plaintiff had pre-existing degenerative disc disease which was triggered into pain and stiffness by the incident and that he suffered a sprained back on top of that pre-existing condition. He found there was persistent pain and stiffness of the back ,although after his examination he concluded that there was some exaggeration of symptoms, which he considered understandable. He thought that for this injury and its treatment, a sick leave period of 9 to 12 months was reasonable. Whole person impairment was assessed at 5%.

35. He considered that with back exercise and reasonable care the Plaintiff could manage a reasonable level of heavy manual work, although he might suffer back pain every so often which would require one or two days rest and his efficiency might be impaired. He found a 10% loss of earning capacity. His assessment was based on the occurrence of 2 accidents, as was his estimation of the necessary sick leave period.

36. Dr Cheng made a second report on 18-2-00 to clarify the date of the second accident, which he did from a Prince of Wales Hospital A & E record entry for 31-1-97. That stated that Plaintiff "Sprained back while carry heavy object today". It did not mention where the incident occurred, but a record of a follow-up visit on 3-2-97, when Plaintiff complained of back pain, noted "Injured on duty on 31-1-97".

37. As the Plaintiff had told Dr Cheng when examined that he had never worked since the alleged second accident (which Dr Cheng believed was on 20-11-96 and which was later said to have occurred on 31-1-97) Dr Cheng surmised that the second accident had probably occurred while the Plaintiff was still on sick leave.

38. Dr Cheng made a further report dated 16-10-00. He sought to answer the question why a simple soft tissue injury of the type described by the Plaintiff should produce the magnitude of symptoms complained of, despite all the treatment that was available to him and when no organic cause could be found.

39. He found that all the Plaintiff's complaints were subjective and pointed out that tests for range of motion and muscle strength, being entirely dependent on the patient's cooperation, could easily be manufactured. He concluded that Plaintiff's reaction to various tests was inappropriate and exaggerated. He felt that consciously or subconsciously the Plaintiff may 'develop or heighten awareness to the normal minor aches and pains of daily life to prove the existence of a lingering injury'. The tendency to 'sell the disability' when grossly exaggerated could merge into malingering.

40. Dr Cheng conceded it was difficult to prove malingering unless the patient confessed, or unless there was observation of a patient performing activities far in excess of what was found on examination, or what the patient claimed he could not do. He referred to a surveillance report, obtained by the Defendant, which was produced at trial, but had not seen the video on which it was based when he prepared this report. He did view the video at trial.

41. He expressed surprise at the sort of treatments proposed by Dr Chu, the Plaintiff's expert, in his report, which included spinal injections. His view was that rest and analgesics as needed for occasional backache would be sufficient treatment, particularly as there was no organic basis for the back complaint.

42. His final view, as an orthopaedic surgeon, was that the Plaintiff suffered a sprained back with minor impairment estimated at 5% of the whole person and that the Plaintiff could return to his preaccident occupation of warehouseman. He did not consider a change of job was needed on medical grounds.

43. He thought that in future the Plaintiff might have occasional episodes of backache which might necessitate one or two days rest and that he might not be able to work overtime frequently. He estimated a probable 10% reduction in efficiency.

SURVEILLANCE REPORT

44. The Plaintiff's evidence was that he had suffered low back pain since the 1st Accident and had had right sciatica since the second. He was in constant pain and had to use a stick, unless he had just taken pain killers. He used the stick sometimes on the left and sometimes on the right side. His wife had had to stop work to care for him.

45. His evidence was rather at odds with a surveillance tape made on 16-12-99 which showed the Plaintiff walking without apparent difficulty, even jauntily, as he returned home from Central after his visit to Dr Cheng for assessment. At that stage he held a walking stick but appeared to be carrying rather than using it. He appeared to have no difficulty in standing for about 10 minutes while waiting for a bus. He was seen to be standing with his weight on the right leg which was said to be causing him pain. After a bus journey of 45 minutes the plaintiff alighted from the bus, folded up his walking stick and walked off unaided to spend 20 minutes doing his marketing, after which he walked home.

46. This was the same man who, hunched over a stick, crept into court helped by his wife and who moved extremely slowly and carefully when going in and out of the witness box.

47. Plaintiff's counsel suggested that the difference between his movements in court and those on the videotape might be attributable to the use of painkillers on the day the tape was made, although Dr Cheng was sceptical as to the existence of such a powerful and fast acting pain killer as would be needed to achieve such results.

48. It was also suggested that, since the making of the video, the Plaintiff's condition had worsened significantly, but Dr Cheng pointed out that while a serious recurrence of symptoms was possible, it was more usual for the condition complained of to plateau for 2 to 3 years, rather than deteriorate swiftly to such a severe degree.

49. The effect of the videotape was such as to suggest that the Plaintiff, if not consciously malingering, was certainly exaggerating his symptoms and the supposed after-effects of the second accident.

CONCLUSION

50. Taking the Plaintiff's case at its highest I consider that it was probable that there was a minor episode of back sprain which caused the Plaintiff to seek treatment on 31-1-97 but that it did not happen at work. Such an episode could have occurred in part because of unresolved symptoms that still existed from the first accident. To a limited extent I should take account of such exacerbation in this assessment accepting that it may not be possible to separate strictly the respective periods of recovery.

51. I am not satisfied however that the symptoms claimed now by the Plaintiff are as serious as he states them to be, nor do I find that the medical evidence supports his claim that he is incapacitated to the extent he says he is, nor that he is wholly unfitted to take up employment.

52. It may well be the case that by this stage the Plaintiff has convinced himself that he will never work again because of the number and nature of the physical complaints he claims or believes he suffers from. I am of the view that if he does not work again it will be because he has chosen to continue to regard himself as a chronic invalid, rather than because he is genuinely unable to work.

ASSESSMENT

PSLA

53. The Plaintiff suggested on the basis of the first and second accidents that the Plaintiff's injuries should be $300,000.00 which brings the injury into the serious injury category in Lee Ting Lam. Having considered the nature of the initial injuries which occurred in the first accident and the initial consequences of the second accident I do not consider that the Plaintiff's injuries come into this category. I award $200,000.00 under this head. That sum takes into account a minor element of overlap with the second accident. It appears however that the Plaintiff's present symptoms, if they exist at all, are attributable to the alleged second accident which I found did not occur at the Plaintiff's place of work.

Pre-trial Loss of Earnings

54. The Plaintiff earned on average $9,388.00 p.m. before the first accident. Although Plaintiff contended that the wage level of his colleagues had increased post-accident, I do not find that such an increase occurred. The evidence of Mr Wong Tak Kuen tended to show that the wages of warehousemen had been reduced since 1996, by dint of allowances being cut, even if basic pay was unaltered. For assessing quantum I rely on pre-accident monthly income as being the appropriate rate. After the accident he received 2/3 of his pre-accident income for the period from September to December 1996.

55. For the period January 1997 to June 1998, while he continued on sick leave, he received 4/5 of his pre-accident income. Those payments totalled $144,651.35 and it was agreed that credit must be given to the Defendant for those payments.

56. The Plaintiff contended that he should be awarded earnings for the whole of the pre- trial period, but in the light of my finding that the Defendant is not liable for the second accident, an award of that nature cannot be made as claimed. Because it is difficult to apportion sick leave exactly between the 1st and 2nd accidents, I assess a more generous period of sick leave to cover that needed for the first accident as well as some overlap for the second episode and award pre-trial loss of earnings at $9,388.00 x 15 months.

Future Loss of Earnings

57. Under this head the Plaintiff claimed the sum of $1.8 million on the basis that he was 44 and that he should have been able to work to 65,.I make no award under this head as there appears to be no physical cause preventing the Plaintiff from returning to his previous employment. I do not accept on the medical evidence that he is wholly unable to work. It may well be the case that the Plaintiff believes at this stage that he is unable to work, but that is a different matter and not one which I can deal with.

Loss of Earning Capacity

58. There was no cogent evidence to support an award under this head and I decline to make one.

Special Damages

59. Medical charges for the physiotherapist were agreed at $2,464.00 as were travelling expenses to the physiotherapist of $1,680.00.

60. Travelling expenses to Dr Hsu, the Defendant's company doctor were not agreed, but I consider that the amount of $3,400.00 claimed is not unreasonable when the Plaintiff had to travel to Hong Kong Island from his home in Tai Po, and I award the sum claimed.

61. The very large sum of $73,000.00 claimed for tonic food was not agreed by the Defendant and the need for it, or the purpose of it, was not made out by the Plaintiff, or supported by any documentary evidence. No special diet was recommended by any of the doctors and although Dr Chu referred to tonic food as one ancillary therapy that might be sought by a patient in the Plaintiff's position, he had not recommended it himself.

62. In evidence the Plaintiff said the claim was to recoup the cost of Chinese herbs bought from a herbalist. There was no prescription for, or description of, the herbs given; no receipts were produced and the herbalist was not called to give evidence.

63. I accept that the use of such herbal remedies may be psychologically helpful or comforting to the Plaintiff, even if they have no strict medical benefit. However in the absence of any evidence about the need for, or the purpose of the tonic food, I am not prepared to make an award larger than $5,000.00. I award that sum.

AWARD

PSLA	200,000.00
Pre-trial Loss of Earnings 9,388.00 x 15 months	140,820.00
Future Loss of Earnings	No Award
Loss of Earning Capacity	No Award
	340,820.00
Less Credit to Defendant	($144,651.35)
Plus	196,168.65
Special Damages
Physiotherapist Charges	2,464.00
Travelling Expenses	1,680.00	(physio.)
Travelling Expenses	3,400.00	(doctor)
Tonic Food	5,000.00
	12,544.00
Total :	208,712.65

Interest

64. The Plaintiff is awarded interest on damages for pain, suffering and loss of amenities at 2% from the date of service of the writ until date of judgment and thereafter at judgment rate until payment and interest on special damages at 6.25% from the 16.9.96 until judgment and thereafter at judgment rate until payment.

Costs

65. There will be an order nisi for costs in favour of the Plaintiff, such costs to be taxed if not agreed.

66. The Plaintiff's own costs to be taxed in accordance with Legal Aid regulations.

Representation:

Ms Rachel Cheung, instructed by Messrs Lo, Wong & Tsui, for Plaintiff

Mr Samuel Chan, instructed by Messrs Deacons, for Defendant