Sin Kin Man v. Hsin Cheong Construction Co Ltd
Read the full judgment text of HCPI 740/2004 on BabelCite. This High Court CFI judgment was delivered on 30 November 2005.
1. At about 5 pm on 19 July 2002 at a construction site at the Cyberport Sewage Treatment Plant (“the construction site”) a scaffold, against which an iron pipe was propped, toppled over. Unfortunately, the Plaintiff, Mr Sin Kin Man, was standing in front of the scaffold when it toppled over. He was struck on the back of his head from behind by the iron pipe and the falling scaffold. As a result he suffered personal injuries for which he sues the Defendant, Hsin Chong Construction Company Lim
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HCPI 740/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 740 OF 2004 ____________ BETWEEN
_____________ Before: Mr Recorder J Fok, SC in Court Dates of Hearing: 8-11 November 2005 Date of Judgment: 30 November 2005 _______________ J U D G M E N T _______________ Introduction 1.At about 5 pm on 19 July 2002 at a construction site at the Cyberport Sewage Treatment Plant (“the construction site”) a scaffold, against which an iron pipe was propped, toppled over. Unfortunately, the Plaintiff, Mr Sin Kin Man, was standing in front of the scaffold when it toppled over. He was struck on the back of his head from behind by the iron pipe and the falling scaffold. As a result he suffered personal injuries for which he sues the Defendant, Hsin Chong Construction Company Limited. 2.The Defendant was the main contractor at the construction site. The Plaintiff, who was born on 14 April 1973 and was aged 29 at the date of the accident, was employed by the Defendant as an assistant site supervisor and had worked for the Defendant in that capacity since September 2000. 3.The Plaintiff alleges that the accident and his resulting injuries were caused by the negligence and/or breach of contract and/or breach of statutory duty of the Defendant. The Plaintiff also alleges breach of the common duty of care on the part of the Defendant as the occupier of the construction site. 4.The Defendant denies liability. On the assumption that liability is found against the Defendant, the Defendant challenges various aspects of the quantum of the Plaintiff’s claim. The accident 5.When the accident occurred, the Plaintiff was working at the construction site supervising concrete injection work. He was discussing the work to be done the following day with his supervisor, Mr Chan Wai Keung. A wooden frame-working platform had been erected behind where he was standing with Mr Chan near the external wall of the intermediate pumping station. According to a brief two-page accident report compiled by a safety officer of the Defendant, the wooden platform had been left unused after the framework for the external wall was constructed. There was an iron pipe (described in the report as an iron tube) about 3.5 metres in length propped up on the guardrails of the working platform. Suddenly, the wooden platform collapsed and the Plaintiff was struck on the head by the iron pipe and the debris from the collapsing wooden platform. 6.No evidence was adduced to explain the cause of the collapse of the wooden platform. In the accident report in question, the platform is described as having been about 3 metres in height and having been left unused for a few days. At the conclusion of the accident report, the Defendant’s safety officer made the following four recommendations:-
7.Fortunately for the Plaintiff, he was wearing a safety helmet at the time of the accident. This was broken in the accident but clearly protected the Plaintiff from suffering what might have been a considerably more serious injury. Nevertheless, the force of the blow was severe enough that the Plaintiff was knocked to the ground and lost consciousness for a short time. He was removed from the wreckage by his colleagues and taken to the Accident and Emergency Department of Queen Mary Hospital where he regained consciousness. Liability 8.The gist of the pleaded particulars of the Plaintiff’s case against the Defendant on the issue of liability are unsurprising given the circumstances of the accident: failing to take any adequate precautions for the Plaintiff’s safety; exposing the Plaintiff to a risk of injury; failing to maintain a safe system of work and to provide a safe place of work; failing to examine, inspect or test the wooden platform to ascertain that it was in a fit and safe state. 9.Mr Kwok, counsel for the Defendant, submitted that, save for the allegation of failing to examine, inspect or test the wooden platform to ascertain that it was in a fit and safe state, none of the particulars of negligence alleged by the Plaintiff were suggestive of any specific negligent act or omission on the part of the Defendant. He submitted that the fact that the working platform was used for constructing the framework of the external wall and had been left unused for a few days after completion of the work suggested that there was nothing wrong with the working platform, at least on a visual inspection. There was no evidence, he submitted, to suggest that the Defendant should have been on inquiry. He further maintained that there was no evidence that the Defendant used unsuitable materials for the platform or that it failed to fix it securely in position. 10.Given the nature and circumstances of the accident, it is not surprising that the Plaintiff has not been in a position to adduce much by way of positive evidence concerning the cause of the collapse of the wooden platform. However, the Defendant did not report the accident to the police or Labour Department and, as a result, independent investigations that might have shed more light on the reasons for the accident were never undertaken. Having said that, I consider that it is open to me to draw the following inferences of fact from the accident report: (i) that part or parts of the wooden platform were not safely constructed of strong and sound materials and were not securely fixed in position; (ii) that the iron pipe was placed on the working platform and that this should not have been done; (iii) that the working platform was not checked or erected by a competent person; and (iv) that the working platform was not being used and should have been dismantled immediately after it was used. 11.The working platform was situated on the construction site for which the Defendant was responsible as main contractor. There was no direct evidence given as to who actually constructed the working platform, but the Plaintiff’s evidence was that it was not under his charge and I accept that evidence. There is nothing in the accident report to suggest that the recommendations made by the Defendant’s safety officer were not directed at the Defendant itself rather than, for example, to any independent sub-contractor. The only witness for the Defendant, Mr Lawrence Wong Ho Yin, was a deputy safety manager who had been in charge of a different section of the construction site. Consequently, he was unable to give any firsthand evidence regarding the construction of the wooden platform. There was no evidence from the relevant safety officer or site supervisor for the area of the construction site where the accident occurred. There was no evidence of the Defendant having directed any complaint to an independent sub-contractor regarding the collapse of the wooden platform. 12.In light of the facts referred to in the previous paragraph and the inferences I have drawn from the recommendations in the accident report, I am satisfied that the Defendant was negligent and in breach of duty in failing to provide a safe place of work for the Plaintiff and in failing to inspect the wooden platform to ensure it was safe. There was no evidence of any outside agency, such as passing workmen or equipment, having been responsible for causing the wooden platform to collapse. The working platform was clearly inadequately constructed or secured, otherwise it would not have collapsed. The propping of the iron pipe against the platform may or may not have been the cause of the collapse: if it was, then the iron pipe should not have been left there; if it was not, the platform was of insufficient strength to bear its weight. In either event, the working platform should not have been in the state it was at the time of the accident. In the circumstances, I also consider that the Defendant was in breach of its common duty of care towards the Plaintiff as the occupier of the site. 13.Mr Kwok submitted that, if the Defendant was found to be liable, the Plaintiff himself was guilty of contributory negligence. He relied on the fact that the Plaintiff had knowledge of construction site safety from various courses he had taken and that he had a duty to monitor or to help monitor site safety and to report any dangerous situations. Reliance was placed on various portions of an internal Site Supervisor Handbook given to the Plaintiff on 11 September 2000 by the Assistant Manager of the Defendant’s Human Resources Department. 14.I do not consider that the Plaintiff was guilty of contributory negligence as contended by the Defendant. Firstly, I do not consider that the Plaintiff was under a duty as extensive as that contended for by the Defendant. The Plaintiff was an assistant site supervisor, not a safety supervisor. He was working in the presence of Mr Chan Wai Keung, a site supervisor and his senior in the corporate hierarchy. A chart depicting the Defendant’s construction site personnel indicates clearly that the Defendant has a separate safety officer independent of the site supervisor and his assistant to oversee safety matters on the site. This is borne out by the fact that the accident report was compiled by the safety officer responsible for the part of the site where the accident occurred, not by the site supervisor. In contrast, the chart shows the Plaintiff’s job was to supervise levellers and apprentices. The Plaintiff described his responsibilities at the site as being to allocate duties among different workers, to allocate building materials and to supervise works. I accept this description. If and insofar as he might have been expected to monitor aspects of safety on the site and to report dangerous situations, this was an ancillary aspect of his principal job responsibilities and depended on his being aware of the dangerous situation. 15.More importantly, and in any event, there is simply no evidence that the accident was caused or contributed to by the Plaintiff failing to notice and report any danger posed by the working platform. There is no evidence as to the observable state or condition of the working platform immediately before the accident occurred and hence no evidence to suggest that it would have been apparent that the working platform posed a danger. If it was in an obviously dangerous state, it is quite clear that neither the Plaintiff’s own superior, Mr Chan Wai Keung, the site supervisor, nor the safety officer responsible for that part of the site noticed or reported this state of affairs. The Plaintiff agreed with the suggestion put to him by Mr Kwok in cross-examination that the iron pipe propped against the platform presented a readily observable danger and that if he had seen it he ought to have reported this state of affairs. However, there was no evidence as to when the iron pipe was placed against the platform: all that is known is that the pipe was there immediately before the platform collapsed and that it struck the Plaintiff on his head. For all the above reasons, I am satisfied that the Defendant has not established contributory negligence on the part of the Plaintiff. Quantum 16.The Plaintiff was born on 14 April 1973 and was 29 years of age at the time of the accident. He is now 32 years of age and lives at Room 3205, Wing Fu House, Tin Fu Court, Tin Shui Wai, Yeun Long, New Territories, which was also his address at the time of the accident. This property is owned by the Plaintiff and his wife, subject to a mortgage. Prior to the accident he had enjoyed good health and had not previously sustained any serious injury. He described his hobbies as playing snooker and football, and swimming. He is right-handed. The Plaintiff and his wife have a five-year old daughter and are expecting a second child in March or April 2006. The Plaintiff’s treatment following the accident 17.As a result of the accident, the Plaintiff lost consciousness for about 15 minutes and was taken to the Accident and Emergency Department of Queen Mary Hospital. He was conscious by the time he arrived at QMH and was examined by Dr Ip Fong Cheng. He complained of pain in the neck, the back and left femur. He had an abrasion on the scalp along the midline extending from the frontal region to the upper occipital region. An X-ray of the skull, chest, spine and left femur did not show any bony fracture and he was treated with an intramuscular injection for pain control. He then left QMH of his own volition in order to transfer to the Baptist Hospital where he was admitted on the same day. 18.At the Baptist Hospital, a physical examination demonstrated a superficial abrasion to the scalp, a contusion injury to the neck and face, with broken teeth. X-rays of the cervical spine and chest, and a CT scan of the brain were normal. An MRI of the cervical spine was performed on 23 July 2002 which showed central posterior disc protrusion at C3/4 level obliterating the anterior thecal space in the thecal sac and touching the spinal cord but with no abnormal signal intensity or change of configuration in the cord. The MRI also showed mild right parasagittal posterior disc protrusion at C6/7 level with indentation of the anterior thecal sac. He was treated with physiotherapy and medications and was discharged about 10 days later. 19.About 2 days after discharge from the Baptist Hospital, he felt dizzy and his headache and neck pain became worse, with associated numbness in both upper limbs. He went to the Accident and Emergency Department of Tuen Mun Hospital on 7 August 2002 and was admitted. According to a report of Dr Leung Kwok Hung of the Department of Orthopaedics and Traumatology, physical examination of the Plaintiff showed diffuse tenderness in the neck. There was slight decrease in power in both upper limbs (grade 4/5) and light touch sensation over C7, C8 and T1 dermatomes on both sides. An X-ray of the spine showed a loss of lordosis. He was treated conservatively as a case of whiplash injury with analgesics and physiotherapy and discharged on 12 August 2002. 20.He then began occupational therapy at Tuen Mun Hospital on 5 September 2002. At a follow-up visit, the Plaintiff complained of persistent dizziness, headache, neck pain and upper limb weakness and numbness. He was referred for neurosurgical consultation. 21.He attended for a consultation at the Department of Neurosurgery at Tuen Mun Hospital on 8 October 2002 and was then admitted from 9 October 2002 to 11 October 2002 for assessment. According to a report by Dr Hung Wai Man, a physical examination showed paraspinal muscle spasm in the cervical spine with limited active range of movement, bilateral upper limb power of grade 3-4/5 and diminished sensation over C8/T1 dermatome. No signs of cervical myelopathy were found at an orthopaedic consulation on 22 October 2002. 22.The Plaintiff was re-admitted to Tuen Mun Hospital from 30 October 2002 to 1 November 2002 for a further MRI of the cervical spine. This showed cervical spondylosis with protruded C3/4 and C6/7 discs causing indentation on the dural sac but with no evidence of cord compression. 23.Conservative treatment continued. He had a total of 24 sessions of physiotherapy from 14 August 2002 to 23 January 2003. Occupational therapy had stopped on 25 September 2002 but resumed on 4 March 2003. The Plaintiff attended a total of 7 sessions of treatment but neither form of treatment resulted in much improvement. 24.Due to sleep disturbance, depressed mood and health and job worries, the Plaintiff was referred for clinical psychological assessment and was first seen on 14 January 2003. He was treated by Ms Ide Chan, a clinical psychologist, who reported on 26 June 2003 that the Plaintiff was impaired in cognitive and memory functioning, consistent across several different tests and that he was functioning within the range of borderline intelligence. He was assessed to be suffering from post-concussion syndrome and treatment was given on his unstable emotions, trauma reactions, pain management and cognitive rehabilitation. A progress report by Ms Chan on 19 September 2003 revealed that his emotions were fluctuating and his marital relationship had deteriorated. A further progress report by Ms Chan on 25 October 2003 revealed that the Plaintiff had showed improvement and managed to care for his daily life activities. 25.On the advice of the clinical psychologist, he was referred for psychiatric consultation on 18 March 2003. He continues to attend for psychiatric follow-up treatment at the Tuen Mun Mental Health Rehabilitation Centre. 26.A more recent report of Ms Ide Chan of 7 May 2005 noted that the Plaintiff presented in mid-2004 with increasing stress. Forgetfulness was causing frustration. He experienced auditory hallucinations and he had frequent suicidal thoughts. The crisis passed after a few months. In a repetition of tests in April 2005 the Plaintiff scored within the borderline intelligence range, similar to his previous results. He was reported still to be suffering from depression and impaired congnitive functioning. The expert medical evidence: differences of opinions 27.Both parties adduced medical evidence in the form of written reports from orthopaedic specialists and from psychiatrists, who had each examined the Plaintiff. For the Plaintiff, a report dated 27 July 2004 of Dr Richard K.M. Poon, a specialist in orthopaedics and traumatology, was adduced, as well as reports dated 24 January 2005, 25 May 2005 and 26 October 2005 from Dr Chan Chee Hung, a specialist in psychiatry. For the Defendant, a report dated 20 January 2005 of Dr Chun Siu Yeung, a specialist in orthopaedics and traumatology was adduced, as well as reports dated 22 March 2005 and 7 November 2005 from Dr Chung See-yuen, a specialist in psychiatry. None of the medical experts gave oral evidence at the trial. 28.So far as his physical injuries are concerned, Dr Richard K.M. Poon diagnosed, following a physical examination, that the Plaintiff sustained the following injuries in the accident: a head injury causing scalp laceration and concussion with transient loss of consciousness; a hyperflexion injury to the cervical spine causing lower motor neurone lesion in both upper limbs and mild upper motor neurone lesion in the right upper and lower limbs, and a soft tissue injury to the cervical spine. Dr Poon described the Plaintiff as having mild weakness in all upper limb muscles of grade 4+ to 5-/5 but significant sensory deficit at C8 dermatomes and lower motor neurone lesion at C8 myotomes on both sides. There are also some upper motor neurone signs in the right upper and lower limbs. Dr Poon opined that these neurological deficits are probably a result of mild cervical cord damage that was sustained at the time of the hyperflexion cervical injury. He noted that the disc prolapses at C3/4 and C6/7 levels as noted in the MRI findings are not causing any cord compression and are not at present responsible for the neurological deficits. 29.As regards the Plaintiff’s residual problems, further treatment and prognosis, Dr Poon reported that the mild cervical cord damage has left the Plaintiff with decreased sensation in the C8 dermatomes on both sides, mild weakness in both upper limbs, and grade 3+ weakness and poor dexterity in the ulnar 2 fingers of both hands, more on the right side. He expected to see little further improvement to these neurological deficits with any treatment as he opined that the cord damage was likely to be permanent. He considered the Plaintiff was likely to have a weak grip in both hands for the rest of his life. In Dr Poon’s opinion, scarring in the posterior facet joints and the surrounding soft tissue, and paracervical muscle spasm are responsible for the pain and severe persistent stiffness in the cervical spine. Dr Poon considered that the range of neck movement and pain should improve with a course of intensive daily physiotherapy in the form of manual mobilization for a period of 6 to 8 weeks. 30.Dr Poon opined that the Plaintiff might be able to cope with a return to work if he was allowed to return to light duties and do only supervisory and clerical work at the construction site without the need to climb scaffoldings or heavy manual work. Other suitable job options, in Dr Poon’s opinion, are cashier, caretaker, storekeeper, car park attendant or messenger. He recommended two years sick leave for the Plaintiff. 31.For his part, Dr Chun Siu Yeung took issue with a number of aspects of Dr Poon’s report. He took issue with the diagnosis of a scalp laceration, relying on the fact that the report of the A&E Department of QMH found the Plaintiff to have sustained an abrasion on the midline of the head from the frontal to upper occipital region. He points out that an abrasion is not the same as a laceration and this observation would appear to be a fair one. 32.Dr Chun thought it unlikely that the impact of the iron pipe and wooden platform on the Plaintiff’s safety helmet was unlikely to have caused a hyper-flexion, rather than a hyper-extension, injury to the cervical spine. He referred to the fact that the MRI on 23 July 2002 only showed disc protrusions of C3-4 and C6-7 levels and stated that he could only agree with Dr Poon that there might be some degree of soft tissue injury to the cervical spine. He could not agree with Dr Poon’s conclusion that there was spinal cord damage to cause upper motor neurone lesion in the upper and lower limbs. Dr Chun’s diagnosis for the Plaintiff’s orthopaedic condition was soft issue injury to the cervical spine. 33.Dr Chun noted that, at his examination, the Plaintiff complained of continuous neck pain of moderate to severe intensity (grade 4-5 to grade 7-8) whilst he had complained to Dr Poon of constant neck pain of mild intensity. Dr Chun noted various differences in the Plaintiff’s complaints concerning diminished sensation in his upper limbs. On his examination of the Plaintiff’s neck, Dr Chun noted no muscle spasm and slight decreased cervical lordosis. The Plaintiff demonstrated no significant movement of all ranges of active neck motions. Dr Chun found the sensation on the medial aspect of the Plaintiff’s forearms to be normal, which Dr Chun stated conformed to the Plaintiff’s complaint that this paraesthesia was intermittent in nature rather than continuous. Dr Chun considered that the Plaintiff’s upper limb weakness was not compatible with the absence of cord and nerve root compression shown on the MRI scans that had been conducted on the Plaintiff. 34.Accordingly, Dr Chun opined that with such clinical findings the Plaintiff’s condition was static and his clinical picture could not be explained satisfactorily from structural and physiological bases. He considered that further treatment was not needed and that he had completed an adequate rehabilitation programme. He did not think that the further physiotherapy suggested by Dr Poon would be effective to help the Plaintiff improve his signs and symptoms, which could not be satisfactorily explained on orthopaedic grounds. Dr Chun opined that from a structural orthopaedic point of view, the Plaintiff’s prognosis was good. Dr Chun considered that the Plaintiff was able to return to work as an assistant foreman with mild inconvenience and discomfort from time to time and that the reasonable sick leave for the orthopaedic condition was one year. 35.So far as his psychiatric condition is concerned, Dr Chan Chee Hung recorded that the Plaintiff reported feeling depressed all the time after the accident. His mood was initially severely down and he had even had suicidal thoughts. He felt frustrated with life and was worried about his future. His memory was poor. He experienced hearing voices saying negative things to him. He felt inferior to his wife who was working, whilst he was out of work, and felt as if he were useless and worthless. He suffered from insomnia and had to take medication to help him sleep. His frustration tolerance was lower and his marital relationship with his wife was troubled as a result of his tantrums and limitation of intimacy with his wife: sexual activity had reduced to near zero as each time he tried this, his neck and head pain made him unable to continue. He had lost most of his social and recreational activities, as he could not turn his head. He had lost the interest and drive to go out with his friends. His lifestyle had become quiet and sedentary. 36.Dr Chan considered that the Plaintiff’ loss of consciousness as a result of the accident and the subsequent development, with symptoms of headache and dizziness, of memory impairment, irritability and poor temper control, cognitive impairment and impairment of intellectual functioning, were manifestations of post-conscussional syndrome (PCS). He opined that initially the Plaintiff had suffered moderately severe PCS but that there had likely been some improvement over time. However, he considered that the Plaintiff was still suffering from significant symptoms of PCS. 37.Dr Chan also opined that the Plaintiff was depressed due to the limitation in his work prospects, daily activities and marital relations brought about as a result of the injury to his neck. Dr Chan considered that the depression resulting from the injury was best understood as an adjustment disorder. He considered that the Plaintiff was genuine in his reported sufferings: his behaviour had been persistent over the past years; he was considered to be genuine during Dr Chan’s examination; and he had been compliant in his treatment. 38.Dr Chan opined that the Plaintiff had reached a static state of progress in his cognitive functions and that what recovery could be made had been made: his congnitive deficit was likely to persist. He considered there was room for improvement in his depression upon the conclusion of the litigation. Dr Chan considered that more intensive psychological help was necessary to help the Plaintiff adjust to his disabilities and recommended private sector treatment for 2 more years of psychiatric treatment with medication and 2 sessions of psychological treatment a month. Dr Chan opined that the Plaintiff’s impairment level should fall in the moderate level, meaning “impairment levels compatible with some, but not all, useful functioning”. It was Dr Chan’s opinion that the Plaintiff could at best do more repetitive types of jobs like data entry, selling tickets in a box office or being a messenger, when his physical condition allows. 39.For his part, Dr Chung See-yuen considered that the Plaintiff’s complaints of bad memory, headache, dizziness, bad temper, depressed mood and sleep problems were compatible with a diagnosis of post-concussional disorder. He also considered that the Plaintiff’s complaints of depressed mood, his worries about another accident, his bad temper, feelings of difficulty in coping, pessimism, lack of interest in activities and sleep problems were suggestive of adjustment disorder with depressed mood. 40.However, Dr Chung disagreed that the accident had any effect on his intellectual or memory functions, as this was not consistent with a mild head trauma. He did not detect objective signs of depression, intellectual or memory impairment during his assessment of the Plaintiff. Dr Chung considered that the Plaintiff portrayed a worse picture of his mental condition during Dr Chung’s interview of him. He concluded that the Plaintiff was suffering from adjustment disorder with depressed mood and some symptoms of post-concussional disorder. He considered the impairment levels to be mild and compatible with most useful functions; he was mentally capable of performing all activities of daily living; the mental disorders were consistent with the circumstances of the accident. 41.Dr Chung believed that the Plaintiff was mentally fit to return to his pre-accident job one year after the accident and that his working efficiency would be mildly affected by the mental complaints. He considered that the Plaintiff had undergone appropriate treatment in the public sector and he believed the psychiatric treatment could be tailed off one year after the conclusion of the litigation. He considered the prognosis for the depression to be favourable and that the Plaintiff’s condition would show improvement if there were to be a favourable change in his circumstances, such as returning to work. He considered the Plaintiff was mentally fit to work during the period of psychiatric treatment. 42.In his report dated 26 October 2005 in response, Dr Chan further opined that he disagreed with Dr Chung’s opinions as regards the Plaintiff’s condition. Dr Chan considered that a mild degree of cognitive impairment as presented in the Plaintiff’s examination was not incompatible with his degree of head injury, which had caused him a period of loss of consciousness. Dr Chan reiterated that he considered that the Plaintiff was truthful in reflecting his impairments and did not exaggerate during Dr Chan’s examination. He believed that the differences of opinion between him and Dr Chung derived from the extent to which they each respectively considered the Plaintiff’s presentation and his cognitive deficit to be genuine. 43.Dr Chung further opined in a reply report dated 7 November 2005. He agreed with Dr Chan that the Plaintiff’s mental complaints were consistent with the diagnosis of post-concussional syndrome and adjustment disorder. Dr Chung did not agree, however that borderline intelligence was consistent with the Plaintiff’s injury of a mild head trauma without brain damage. He thought the Plaintiff’s unsatisfactory test results indicated functional impairment rather than permanent impairment and were the result of inadequate effort. Finally, he did not agree with Dr Chan’s assessment of the severity of the Plaintiff’s depression. Findings as to the Plaintiff’s injuries sustained as a result of the accident 44.I have set out in the preceding section the gist of the respective medical experts’ opinions at some length because, as will be readily apparent, there are differences of opinion between the medical experts as to the extent of the injuries sustained by the Plaintiff as a result of the accident. As I have noted above, the medical experts were not called to give oral evidence at the trial and so they were not cross-examined on their respective opinions. Instead, both parties’ counsel invited me to resolve the differences of opinions in favour of their respective client. 45.On behalf of the Defendant, Mr Kwok submitted that I should prefer the evidence of Dr Chun over that of Dr Poon because there was no evidence of any cervical cord compression or damage. He submitted that there was therefore no evidence of neurological damage as a result of cervical cord damage; at best there was a soft tissue injury but this could not account for the numbness or tingling in the Plaintiff’s upper limbs. Mr Kwok submitted there was no medical evidence to explain why the Plaintiff’s headaches and neck pain lasted as long as the Plaintiff claimed or why they were of the severity described. There had been no fracture of the skull or intra-cranial damage. He submitted there must be an element of exaggeration in the Plaintiff’s evidence or a large element of subjectiveness. 46.As regards the psychiatric evidence, Mr Kwok submitted that there was no evidence of organic brain damage that might explain a diagnosis of borderline intelligence or memory function impairment. He submitted that the symptoms displayed by the Plaintiff were not genuine. He referred to the fact that the Plaintiff had exhibited no difficulty in answering questions when giving evidence: he gave appropriate answers; he was able to recall past events and his duties at work; the recalled what he had been told about the accident. Mr Kwok submitted that the Plaintiff was exaggerating his symptoms, in particular concerning his headaches and neck pain. Mr Kwok submitted that this was inconsistent with what the Plaintiff had told Dr Chan when examined by him and also his evidence about trying to look for work through friends. He referred to the fact that the Plaintiff was unable to recall the name of the painkiller and anti-depressant drug which he had claimed to take on a daily basis. Mr Kwok submitted that the Plaintiff’s claim that his marital relations had been badly affected must be exaggerated in light of the resumption of intimacy between the Plaintiff and his wife about a year ago, as clearly evidenced by the fact that the Plaintiff’s wife is expecting the couple’s second child in March or April 2006. 47.I have carefully considered the submissions of Mr Kwok regarding the content of the Plaintiff’s evidence and the manner in which he gave it. The Plaintiff struck me as basically credible. He consistently moved in a way that indicated he suffered from stiffness and discomfort in his neck and shoulders. He demeanour was depressed and he had a melancholy air about him when giving his evidence, which was at times slow and rather laboured. Having said that, the Plaintiff clearly made an effort to be responsive to the questions that were put to him by both counsel. I did not form the impression that the Plaintiff was seeking materially to exaggerate his condition or how he has been affected by the accident. I think there is some force in the submission made by Mr Gidwani, counsel for the Plaintiff, that the regular attendance by the Plaintiff at Tuen Mun Hospital during the early part of 2003 when Hong Kong was experiencing the SARS epidemic is not consistent with a malingerer who was trying to exaggerate the severity of his injuries. Equally, I think the Plaintiff was candid in describing the unsuccessful efforts he had made since the beginning of this year to look for a new job. He also candidly described having told the Defendant that he wanted to resume working after his sick leave expired in July 2004 and said that he was willing to attempt to go back to work in his pre-accident job. It seems to me that if the Plaintiff were trying to exaggerate his condition he would not have made these candid admissions. 48.I accept the evidence of the Plaintiff in describing his current injuries, namely that he suffers from headaches, neck pain and numbness in his arms and that these symptoms occur on a daily basis. It is true that at some stages in the course of his treatment since the accident the Plaintiff’s symptoms have been described as being less severe than at others. However, overall I am satisfied that those variances in the descriptions of his symptoms reflect the fact that his symptoms have fluctuated from time to time and I accept that the Plaintiff’s symptoms as he described them in his evidence are genuine. His physical injuries have interfered with his pre-accident hobbies, including playing football and taking his daughter out. The Plaintiff appeared to me to be in a depressed mood when giving evidence. I accept his evidence that he feels a deep sense of frustration due to his chronic pain and inability to return to work and consequently to the vulnerability of his position as a provider to his wife and family. The extent of his frustration and his feelings of worthlessness were amply illustrated, in my view, by his evidence that he was not happy about the impending arrival of his second child. I accept that the injuries have affected the harmony of his married life, that he has become irritable and withdrawn, and that sexual relations with his wife were curtailed until last year due to the pain in his neck. 49.Not having heard any oral evidence from the medical experts, I am left to resolve the differences in their opinions by reference to the documents and the Plaintiff’s own evidence. In light of my assessment that the Plaintiff was genuine in describing his injuries, I conclude that the Plaintiff’s medical expert evidence is to be preferred. I am not persuaded that there is no evidence of a neurological deficit simply because there is no evidence of cervical cord compression. It appears to be common ground that the Plaintiff suffered disc protrusions of C3-4 and C6-7 levels and a soft tissue injury to the cervical spine. In addition, he was rendered unconscious as a result of the accident and his symptoms are consistent with the diagnosis of post-concussional syndrome. The results of the tests of the Plaintiff’s mental function are documented and can only be discounted if it is accepted that the Plaintiff deliberately underperformed. 50.I therefore find that, as a result of the accident, the Plaintiff suffered the following physical injuries, namely: (a) a head injury causing a scalp abrasion, broken teeth and concussion with transient loss of conciousness; (b) a hyperflexion injury to the cervical spine causing lower motor neurone lesion in both upper limbs; (c) a soft tissue injury to the cervical spine. I am satisfied that the Plaintiff suffers from decreased sensation in the C8 dermatomes on both sides, mild weakness in both upper limbs, grade 3+ weakness and poor dexterity in the ulnar fingers of both hands and that these neurological deficits are likely to be permanent. I am also satisfied that the Plaintiff suffers from pain and severe stiffness in the cervical spine resulting in a limited range of neck movement. 51.I also find that, as a result of the accident, the Plaintiff has post-concussional syndrome manifested by symptoms of varying degrees of seriousness of headache and dizziness, memory impairment, irritability and poor temper control, with cognitive impairment and impairment of intellectual functioning. The Plaintiff also suffers from an adjustment disorder with depressed mood. I am also satisfied that the Plaintiff’s mental condition has settled into a stable state, with residual symptoms that are likely to persist, although I am also satisfied that the medical evidence demonstrates that the Plaintiff’s depression should improve with the conclusion of this litigation. Pain, suffering and loss of amenities (“PSLA”) 52.Both counsel helpfully referred to numerous cases to fix the appropriate level of damages for PSLA for the Plaintiff’s injuries. Mr Gidwani initially submitted that an award of $600,000 would be appropriate but in closing submissions indicated that a range of between $450,000 and $600,000 would be fair. For his part, Mr Kwok submitted that $200,000 would be the appropriate award in this case, although that submission was based in part on the premise that the Plaintiff would be found to be exaggerating his injuries. 53.I do not propose to address the individual cases which counsel cited in respect of damages for PSLA as each case must turn on its own individual facts. Some of the cases cited were clearly of more serious injuries than those suffered by the Plaintiff and some less so. In light of my findings as to the injuries caused by the accident, I am satisfied that the injuries can properly be described as falling in the “serious injury” category defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. 54.Although he invited me to make an award at the upper end of the range he indicated, Mr Gidwani acknowledged that it would be proper to reflect in the award any prospect of the Plaintiff’s condition improving in future, either as a result of future medical treatment (as to which, see below) or the resolution of the litigation or the self-esteem that might come from the Plaintiff finding employment. Taking these matters into account but balancing against them the fact that the Plaintiff was aged 29 at the time of the accident and that he was engaged in the early stage of a developing career and enjoyed an active life, I consider that an award of $500,000 by way of damages for PSLA is appropriate in the present case. Loss of earnings (pre-trial) 55.The Defendant’s case was there should be no loss of earnings, whether past or future, because the Plaintiff could and should have returned to his pre-accident employment one year after the date of the accident. Alternatively, Mr Kwok submitted that the Plaintiff should have obtained employment as an assistant site supervisor as from the time when he was laid off by the Defendant in September 2004. 56.Again, this submission was in part based on the premise that the Plaintiff was exaggerating his injuries and in part on the Defendant’s expert medical evidence that suggested his injuries were not as serious as described by the Plaintiff’s medical experts. I have concluded that the Plaintiff was not exaggerating. The Plaintiff’s medical expert evidence suggested sick leave for 2 years. I think it was reasonable for the Plaintiff not to work during that 2-year period. 57.The Plaintiff did give evidence that he had tried to find work since about July 2004. These efforts as described by the Plaintiff seem to have been rather half-hearted. However, it was noteworthy in this regard that the Plaintiff’s evidence was that he asked unsuccessfully to return to work with the Defendant as an assistant site supervisor. If the Defendant did really consider that the Plaintiff was fit to resume his pre-accident employment, it is somewhat surprising that he was laid off. 58.In light of my findings as to the Plaintiff’s injuries, I am satisfied that an award for past loss of earnings is appropriate in the claimed amount of $497,569. 59.To this sum, the element of employer’s MPF contribution must be added in the claimed amount of $14,348.45. 60.There will be an award under this head of $511,917.45. Future loss of earnings 61.For the reasons stated above, I prefer the Plaintiff’s medical expert evidence which supports the Plaintiff’s contention that he will be unable to resume work as an assistant site supervisor and that his inability to do so is permanent. The Plaintiff’s pleaded case is that he can only perform light duty jobs of a repetitive nature, such as data entry or a messenger job. I consider that an award for loss of future earnings is appropriate in light of the Plaintiff’s injuries and condition. 62.A claim is advanced based on the premise that the Plaintiff will only be able to earn a monthly salary of $7,578 in the future. Mr Gidwani suggested that this figure of $7,578 was the result of averaging various statistical data for types of employment for which it was believed the Plaintiff was capable. I was not satisfied that this exercise was properly documented or sufficiently clear to justify an award based on this figure. 63.For his part, Mr Kwok helpfully analysed the statistical information and proposed a calculation based on an overall average of the data relating to supervisory, technical, clerical and miscellaneous non-production workers employed in architectural, surveying and engineering firms on the one hand and the data relating to supervisory, technical, clerical and miscellaneous non-production workers employed in security and detective services on the other. This averaging exercise produced a figure of $10,790. By way of benchmark, Mr Kwok pointed out that this figure was close to the average monthly salary figure for clerical and secretarial workers of $10,537. 64.I consider that the appropriate multiplicand for this head of loss is therefore the difference between the Plaintiff’s agreed pre-accident monthly salary of $13,745 and a monthly salary of $10,790 arrived at by the averaging exercise referred to in the preceding paragraph, namely $2,955. 65.As for the multiplier, the Plaintiff’s case was originally pleaded on the basis of a multiplier of 18. In his closing submissions, Mr Gidwani suggested that a multiplier of 15 would be appropriate. For his part, Mr Kwok contended that a multiplier of 14 was appropriate. The difference between the parties on this issue is obviously not great. In light of the Plaintiff’s current age of 32, I propose to apply a multiplier of 15 in this case. 66.Accordingly, the loss under this head will be $2,955 x 12 x 15, giving a total of $531,900. To this must be added the employers’ contribution to MPF in the sum of $26,595 (being 5% of $531,900), giving a total award under this head of $558,495. Loss of earning capacity 67.A claim under his head was advanced on behalf of the Plaintiff. There is no evidence in the present case that the Plaintiff stands a risk of losing an alternative employment before retirement due to his injuries. The evidence of the Plaintiff’s efforts to find alternative employment is rather thin. The medical evidence, which I have accepted as regards the nature of the injuries sustained by the Plaintiff, indicates that the Plaintiff should be able to find alternative employment albeit not in his pre-accident job. 68.In all the circumstances, I decline to make an award under this head of claim. Future medical expenses 69.As indicated above, I have taken this claim into account in assessing the amount of damages for PSLA. 70.I accept the Plaintiff’s medical experts’ opinions that the Plaintiff will benefit from future medical treatment in the form of (a) intensive daily physiotherapy for a period of 6 to 8 weeks (per Dr Poon) and (b) 2 sessions of psychological counselling per month over a period of 2 years, as well as psychiatric treatment with medication for a further 2 years (per Dr Chan). 71.According to the Plaintiff’s medical expert evidence, the cost of the physiotherapy sessions will be $15,000 in a private rehabilitation centre. The cost of the psychological counselling and psychiatric treatment is estimated by Dr Chan to be $3,000 per month for each, so that the costs of such counselling and treatment for 2 years would be a total of $144,000. Mr Kwok submitted that there was no reason why the Plaintiff could not receive the same treatment at a public hospital in which case the costs would be considerably lower. On the other hand, the Plaintiff’s evidence was that he did not find the physiotherapy sessions at the Tuen Mun Hospital effective. As for the psychological treatment, the Plaintiff’s evidence was that he found the follow up appointments did not help because of the very short duration of the sessions. 72.I consider that the future medical expenses claimed are justified and I make an award under this head in the sum of $159,000. Special damages 73.The parties agreed on the amount of special damages relating to hospital fees, medical expenses, travelling expenses and tonic food in the global sum of $7,000 and these are allowed. Summary of awards 74.To summarise, I make the following awards of damages in favour of the Plaintiff:-
75.Against these sums, credit for the sum of employees’ compensation in the sum of $244,884.15 must be given. 76.The total award of damages will therefore be $1,491,528.30. Interest 77.There will be an award of interest on damages for PSLA at 2% from the date of the writ (being 11 August 2004) until the date of judgment. 78.As for the damages for pre-trial loss of earnings (excluding the MPF element) and other special damages, interest will be awarded on those damages at half the judgment rate from the date of the accident until the date of judgment. Costs 79.I make a costs order nisi that the Defendant bear the Plaintiff’s costs of this action to be taxed, if not agreed. The Plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations.
Mr Victor Gidwani, instructed by Messrs Simon Si & Co., assigned by Director of Legal Aid, for the Plaintiff Mr Tim Kwok, instructed by Messrs Lau, Chan & Ko, for the Defendant |
Cases cited in this judgment