Singh Jagdeep v. Vsc Engineering Products Co Ltd

cacv 297/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 297 of 2005

(on appeal from DCPI NO. 391 of 2005)

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BETWEEN

Before : Hon Le Pichon JA, Chu and Kwan JJ in Court

Date of Hearing : 6 January 2006

Date of Judgment : 6 January 2006

Date of Handing Down Reasons for Judgment : 17 January 2006

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was an appeal from the judgment of His Honour Judge Wesley Wong dated 17 June 2005 whereby the judge held that the plaintiff was not entitled to any damages against the defendant although the latter was responsible for the accident on 21 May 2001 which gave rise to the personal injuries claim.  This was because the amount of damages arising out of the accident did not exceed the employee’s compensation already received by the plaintiff.  The only point arising in the appeal was whether the judge was right in concluding that the plaintiff had completely recovered from the injury sustained on 21 May 2001 caused by the defendant’s negligence before sustaining a second, unrelated, injury on 14 July 2001.  At the conclusion of the hearing, the appeal was dismissed with written reasons to be handed down later which we now do. 

Background

2.At about 11:30 a.m. on the 21 May 2001, the plaintiff was injured when the disc of the electric disc cutter machine he was using to cut iron rods broke.  The medical report dated 27 May 2003 of Dr Y K Li of the A & E Department of Princess Margaret Hospital who attended the plaintiff that evening stated as follows:

“On physical examination, abrasion wound was found over left dorsal part of hand.  Fingers movement and sensation were normal.  X-ray of left hand showed no fracture.  Dressing was done on the wound.  He was discharged with analgesic with sick leave from 21 May 2001 to 24 May 2001.”

A supplemental report made by Dr Li confirmed the earlier report and added nothing new.

3.The medical reports made no mention of any swelling on the left hand.  That was entirely consistent with the clinical notes made at the time the plaintiff was seen by Dr Li and at subsequent follow-up visits made on 24 May and 1 June.  At the trial, the plaintiff’s evidence that there was an area of swelling about 3” x 3” on the outer side of his left hand over the knuckle area was rejected by the judge.

4.The plaintiff was seen again four days later at the hospital.  Against the line “Condition on Arrival” in the triage, the entry read: “no discharge, no swelling”.  Painkillers were prescribed.  A week later, on 1 June, the plaintiff returned to the same hospital.  According to the clinical notes, he complained of residual pain and requested sick leave.  Again, there was no mention of any swelling.  It would seem that he was not granted further sick leave but was seen again on the same day around 5 p.m. by a different doctor.  The clinical notes referred to there being “maximum pain fourth and fifth fingers” of the left hand, that there was a “good range of movement but pain on flexion”.  Painkillers were prescribed and sick leave was extended to 6 June.

5.The plaintiff did not return to the hospital after his sick leave expired.  Rather, he consulted private doctors on 26 June concerning pain in his left small and ring fingers, and on 6 and 10 July concerning an upper respiratory tract infection as well as an injury to his left hand.  No clinical notes concerning those visits were in evidence.

6.The plaintiff returned to the A & E Department on 15 July.  According to the triage, his chief complaint was that he had “fever since night”, a left hand injury since 31 May (plainly an error for 21 May) “still in pain”, that it was an “injury by metal yesterday” followed by the word “swelling”.  The clinical notes referred to the injury to the left hand two months earlier and that an X-ray had been taken which showed no fracture.  The notes then had this entry:

“developed left-hand pain yesterday because chopped on left hand accidentally by a heavy object yesterday.”

Another staff member of the A & E Department also recorded that the plaintiff “was hit by metal bar yesterday”.  The medical report dated 2 October 2003 by the attending doctor noted “tenderness and swelling over the dorsal aspect of the left ring and little fingers with a decrease of range of movement.  X-ray of left hand showed a fracture line over the proximal phalanx of left ring finger.”

7.The plaintiff’s medical expert, Dr Wong Kwok Shing, Patrick filed a report dated 24 July 2004 in which he had this to say about the radiological examination:

“	1.	X-rays left hand taken in A & E Department, PMH on 21 May 2001 and 15 July 2001 were reviewed.  There is no definite fracture on both films.  It is most likely that the lucent line penetrating the cortex of the proximal phalange of which is a transcortical blood vessel entering the medullar of the bone was mistaken as a fracture on 15 July 2001.  Actually, the same lucent line is present on the 21 May 2001 film.
	2.	X-ray both hands taken on day of examination shows no sign of old fracture of the left hand ring finger or at other bone.  The same lucent line representing transcortical blood vessel is present at the left ring finger proximal phalanges with the same appearance as the x-rays taken in A & E Department, PMH.  Such a vessel is present symmetrically on the right ring finger as well.”

8.He went on to opine that there was

“…inconsistency between PMH A & E’s reports and Mr. Singh’s description on whether he sustained one accident on 21 May 2001 or having another accident shortly before 15 July 2001.  Reviewing information available, I am of the opinion that it is more likely that he did not have another accident.  It is because that he was having pain over almost the exact site and had the same reduction of ring and little finger movements during his visit on 15 July 2001 as his previous visits.  Just before 15 July 2001, he had consulted private medical practitioners on 26 June, 6 & 10 July for the same symptoms.  The chance is very remote that a heavy metal object having fallen onto the same spot on his left hand in the very short time interval in between.  Language barrier is a lot more likely. However, I am of the opinion that Mr. Singh did not sustain any ring finger proximal phalange fracture.  As described in the ‘Radiological findings’ section, the transcortical blood vessel had been mistaken as a fracture-line while it appears the same on all x-ray films taken at different time as well as on Mr. Singh’s right hand.”

9.The defendant’s medical expert Dr Au Ka Kau disagreed.  Judging from the evidence noted in the medical report by Dr Li, he was of the view that the plaintiff sustained a soft tissue injury of mild severity which would have healed in about two weeks satisfactorily and that such an injury involving the dorsum of the left hand was “unlikely to be the cause of his present left ring finger and little finger impairment”.  Based on a reasonable degree of medical certainty, Dr Au opined that “the impairment [was] likely to be a result of the injury that happened on the 14^th of July 2001” which was more severe causing a fracture of the left ring finger.

10.Based on the evidence before him, the judge came to the conclusion that there had been two accidents and that the defendant was not responsible for the injuries sustained in the second accident in July 2001.

This appeal

11.The basis of the plaintiff’s appeal was that he had sustained one injury only and that the judge’s finding that there had been two separate injuries was wrong.  It was said that the plaintiff had been misunderstood when he went to the hospital on 15 July and the misunderstanding had come about because of his limited English, his native tongue being Punjabi. 

12.Mr Wright who appeared for the plaintiff criticised Dr Au for failing to address Dr Wong’s opinion concerning the radiological examination in his report dated 27 October 2004.  For my part, I cannot see that the correctness of the radiological diagnosis has any bearing on the correctness of the judge’s conclusion.  Even if the plaintiff did not sustain a fracture of his little finger in July, that fact does not of itself invalidate the judge’s finding that there had been two separate accidents.  It is incontrovertible that there was ample documented medical evidence to sustain the finding made by the judge.  Pausing there, I would make the observation that Dr Wong’s opinion that it was more likely that this plaintiff did not have a second accident was pure speculation.  Moreover, his statement that the plaintiff “had the same reduction of ring and little finger movements during his visit on 15 July 2001 as his previous visits” is not supported by the evidence.  See the medical report of Dr Li referred to in paragraph 2 above which stated that “fingers movement and sensation were normal”.  As will become apparent, there is also the fact that no medical aetiology was forthcoming for the plaintiff’s condition in July.

13.The judge did not find the plaintiff to be a credible witness and in this connection, it should be noted that even his own expert considered that his

“subjective complaints are not consistent with the injury documented.  As there was no serious pathology documented and the present examination does not reveal structural lesion, his left hand pain and disability should not have remained as he complaint of after three years since the accident.  His effort during grip strength testing is inconsistent.  There is no muscle wasting to substantiate chronic pain and weakness left hand for three years.”

Further, had there been but one single injury, no medical explanation was proffered to explain how the abrasion wound could have developed into the condition that presented itself in July.  It should be borne in mind that there was no notation of any swelling in the medical records until 15 July.  Indeed, on 24 May, it was specifically noted, in the triage that there was no swelling.  One might ask rhetorically, what could account for the tenderness and swelling to the dorsal part of the hand 7 weeks after the accident and the decrease in range of movement if not a second accident?

14.The only other point relied on by Mr Wright was the alleged language barrier which somehow gave rise to entries in the clinical notes referred to in paragraph 6 above which, prima facie, supported a conclusion that the plaintiff sustained a separate injury on 14 July 2001.  There would appear to be little substance in the point.  Of his five visits to the A & E Department, four had been unaccompanied visits.  Yet, the only complaint of any misunderstanding or inaccuracy in the clinical notes concerned one single aspect of the notes made on 15 July, all of which referred to something that had happened the day before.  Three different medical staff attending the plaintiff that day had recorded, separately, that the plaintiff had been “injured by metal on yesterday”, “developed left hand pain yesterday because chopped on left hand accidentally by a heavy object” and “hit by metal bar yesterday”.  The chances for all three medical staff to have misunderstood the plaintiff in the same way would be more than fortuitous given the absence of any inkling of what the plaintiff might have said that would have been translated into his left hand having come into contact with metal or heavy object.

Hon Chu J:

15.I agree and have nothing to add.

Hon Kwan J:

16.I agree.

Mr John Wright, instructed by Messrs Massie & Clement, for the Plaintiff/Appellant

Ms Winnie Chan, instructed by Messrs Christine M. Koo & Ip, for the Defendant/Respondent