Lin Chiu Lung v. Ile Co Ltd

HCPI 1056/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1056 OF 2002

____________________

BETWEEN

____________________

Coram: Master B Kwan in Chambers

Date of Hearing: 29 November 2005

Date of Handing Down: 8 December 2005

____________________

DECISION

____________________

1.This is an application for Interim Payment pursuant to O29 r11, which was resisted by the defendant.

2.On 25.11.99 the plaintiff was an 18 year old apprentice electrician on his first day at work on this construction site. At the material time, the plaintiff was working with one Yan Kwok Piu, (a potential witness for the defendant).

3.In order to consider the arguments in perspective, a summary of the cases for the parties is given, before the discussion in detail of the application for Interim Payment.

4.It is the plaintiff’s case that there was an unsafe system of work. At the material time Yan Kwok Piu (“Yan”) was his supervisor, but no or insufficient training had been given to him.

5.In his witness statement the plaintiff explained that he helped in an operation to hoist up some building materials. He assisted in trussing up a load of assorted building materials such as plastic pipes, nylon bags and electrical switch boxes, to be carried by crane to a location on the higher floors of the construction site. The plaintiff was accidentally lifted up together with the load. When he was about 8-9 feet in the air he “could only hold on to the rope tightly, but I could not withstand it at last”, he fell and landed on his right elbow. He is right hand-dominant.

6.The plaintiff’s right ulnar nerve was trapped by a bony fragment and had to be surgically removed, but took 2 operations to correct the situation.

7.The plaintiff relies on, inter alia, the evidence of an orthopaedic and a psychiatric expert, that is, Dr Richard Poon, an orthopaedic consultant, and Professor Felice Mak, the single joint psychiatrist. Professor Mak found that the plaintiff suffered from adjustment disorder with prolonged depressive reaction, using the ICD-10 diagnostic criteria. It was submitted that the plaintiff has been unable to work since the accident, and will be awarded substantial damages.

8.The defendant’s argument is two pronged : (a) that on the evidence the plaintiff will not be able to succeed in his claim against the defendant; and (b) even if he does, it will be unlikely the plaintiff will obtain substantial damages.

The evidence in relation to the circumstances of the accident 

9.Counsel for the plaintiff submitted that he would succeed on liability. Yan Kwok Piu (“Yan”) was his supervisor at the material time. Yan was in communication with the crane operator, and should have been in control of the situation. The crane operator will not be giving evidence. It mattered not that the plaintiff was unable to explain how the accident happened, because he could rely on the maxim “res ipsa loquitor”. If there had been a safe system of work, the plaintiff would not have been carried up together with the load. The plaintiff would be relying on Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207.

10.Counsel for the defendant disputed that “res ipsa loquitor” applied. It was argued that there was evidence to explain the circumstances of the accident, and that the credibility of the plaintiff in this regard should be questioned.

11.At paragraph 3 of the judgment in Sanfield, the Bokhary PJ said “This mode of inferential reasoning applies only to accidents of unknown cause” and it “comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff”. 

12.The issue between the parties stem from the key words “accident of unknown cause”. 

13.In order to rely upon “res ipsa loquitor”, the plaintiff must show that the accident was of “unknown cause”. A study of the contents of his witness statements will show that he has provided little information as to the actual circumstances of the accident.

14.One would have expected that the details of such a traumatic accident would be fixed in the mind of the plaintiff, so it is difficult to understand why the plaintiff not provided any details at all. Nothing was said about how he was lifted up together with the load, whether it was his hand that was caught; or his clothes that were caught; or the reason why he was unable to extricate himself, and ended up being pulled up into the air. The plaintiff’s silence might trigger the other side to suggest at trial that he was the author of his own misfortune. In his statement he said that he had fallen because he was unable to hang on any longer, (see para 35 of statement dated 4.9.03). That passage would tend to suggest that the only reason that the plaintiff was pulled up into the air was because he had clung to the rope when he ought to have let go.

15.I found it odd that there has been no attempt to respond to the allegations in Yan’s witness statement that the plaintiff’s gloves had become entangled with the nylon rope, and that was why he was dragged upwards. 

16.If it is possible for the trial judge to find that the paucity of evidence relating to the accident was due to reluctance or recalcitrance on his part, it will be difficult for the plaintiff to argue that the accident was of “unknown cause”.

17.In the circumstances I doubt that at trial the plaintiff will be allowed to rely on the maxim “res ipsa loquitor”. If that is the case, then he will have difficulty in establishing liability against the defendant.

18.Even if I am wrong, and the plaintiff is able to establish liability, a finding of contributory negligence will inevitably reduce the amount of damages awarded. This is because I expect the credibility of the plaintiff will be impeached, based on reasons given, and the passages cited from the witness statements by counsel for the defendant.

Substantial Damages

19.In considering whether to grant an Interim Payment, the court must also consider whether the plaintiff obtain judgment for substantial damages at trial. In essence this entails a consideration of the medical evidence.

20.It is common ground that as a result of the accident the plaintiff suffered (1) fracture of the right medial epicondyle (elbow); (2) entrapment of the right ulnar nerve which necessitated 2 operations to remedy the condition; and (3) adjustment disorder with prolonged depressive reaction.

21.It is the plaintiff’s case that he still suffers from parasthesia and decreased sensation of the right upper limb, and combined with the psychiatric residues, he will be unable to return to the pre-accident job. In the circumstances he must be awarded substantial damages.

22.The plaintiff’s orthopaedic expert Dr Richard Poon stated at page 8 of his report dated 24.8.02 that :

“I agree with Dr David Cheng that as far as the right ulnar nerve is concerned, the residual parasthesia and mild weakness do not affect the normal functioning of the right hand.

Dr Cheng did not comment on the nerve subluxation, the second operation, the loss of sensation in the proximal forearm as a result of the surgery, the pain in the right elbow and his recent chest pains. It must be emphasized that it is the latter two that determine his ability to return to work and not the ulnar nerve entrapment.”

23.By “the latter two” Dr Poon must be referring to the elbow pain and the chest pain. Since the chest pains only appeared in 2002, they cannot be said to be related to the accident in 1999, and can be disregarded in the present exercise.

24.As for the right elbow pain, at page 7 of the same report Dr Poon conceded that the right hand was “near normal in function”, but went on to comment :

“At present he is attending work hardening once a week and is able to lift 20 to 25 lbs without causing right elbow pain. But according to him, this falls far short of the heavy manual demand required in his pre-accident job.”

25.Whether the plaintiff can meet the demands of the pre-accident job will be a matter for the trial judge. But even if the trial judge makes a finding that the capacity of the plaintiff’s right elbow was less than that required by the pre-accident job, it is clear from Dr Poon’s report that with “work hardening” physiotherapy the problem will be overcome. In other words, Dr Poon did not regard this to be a permanent problem, therefore I do not anticipate the trial judge to regard it as a permanent condition.

26.I turn now to the psychiatric evidence. Professor Mak is the single joint psychiatric expert, as such, there can be no dispute as to the admissibility or reliability of her evidence. It is common ground that Professor Mak diagnosed adjustment disorder with prolonged depressive reaction.

27.The report of Professor Mak deserves careful consideration, since Counsel for the plaintiff indicated that he was primarily relying on as the basis for the plaintiff’s application for Interim Payment  

28.Professor Mak used the ICD-10 diagnostic criteria. Under ICD-10 the code for adjustment disorder with prolonged depressive reaction is F43.21. We can decipher from reading ICD-10 literature, and the excerpts attached to Professor Mak’s report that Adjustment Disorder is a residual category used to describe situations where there is an identifiable stressor, but where the patient’s condition does not meet the criteria for another specific psychiatric disorder. So, although Adjustment Disorder with depression shares the same symptoms with depression, it normally has a duration of not more than 6 months. The symptoms must develop within 3 months after the onset of the stressor and resolve within 6 months of the termination of the stressor. However if the symptoms persist for a period over 6 months, the psychiatrist will categorize it as an adjustment disorder with prolonged depressive reaction, that is category F43, with suffix 21, simply to show that the duration of the symptoms exceeded 6 months. It still remains that the ICD-10 diagnostic criteria regards this as “a mild depressive state”.

29.Professor Mak concluded her report stating :(1) Mr Lin suffers from adjustment disorder with prolonged depressive reaction; (2) No permanent damage from this disorder is envisaged; (3) He will need further psychiatric intervention for up to one year after the litigation is resolved; (4) From a psychiatric point of view he should be able to return to his previous employment or jobs of similar nature; (5) His father can benefit from counseling by a clinical psychologist.

30.It is difficult to see how Professor Mak’s report can be the basis of an argument for substantial damages. It concluded that the plaintiff was able to return to the pre-accident job, so the damages for future loss of earnings must be limited. Furthermore, Professor Mak inadvertently put paid to the plaintiff’s argument that he could not return to the pre-accident job because of elbow pain. At paragraph 19.1g the Professor stated that :

“He moved his right arm freely and without any expression of pain to scratch his ears, to illustrate how he was grasping the bundle when the crane went up, to mark the pain chart, to push open a door, to support his head when he was sitting in the waiting room and to raise a tightly clenched fist.”

31.In all the circumstances I am not persuaded that if the action proceeded to trial the plaintiff would obtain judgment for substantial damages against the defendant. As the application for Interim Payment has failed, I am making an Order Nisi that costs of the application be to the defendant in any event, together with certificate for Counsel, to be taxed if not agreed. Unless a written application to vary the proposed costs order nisi is received within 14 days of the handing down of these Reasons, the order nisi shall become absolute.

Mr V Gidwani inst’d by Messrs Simon Si & Co for the plaintiff;

Ms J Malloy inst’d by Messrs Deacons for the defendant.