Man Ying Chu v. Leung Kwok Wing and Others

HCPI 1062/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1062 OF 2004

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BETWEEN

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Before: Hon Saunders J in Court

Dates of Hearing: 9 & 10 November 2006

Date of Judgment: 19 December 2006

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J U D G M E N T

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Background and parties

1.This action for personal injuries arises out of a motor vehicle accident, in the course of Ms Man’s employment, which occurred on 27 November 2001.  Ms Man was employed by Citywise as a casual worker.  Citywise was a subcontractor of Hung Mau, the principal contractor.

2.There is no dispute about the circumstances of the accident, although Mr Li for the defendants, says that the injury suffered by Ms Man could not have occurred in the course of the accident.

3.The injuries suffered by Ms Man were to her knees, and in particular her left knee.  The very unusual feature about this case is that subsequent medical examination has demonstrated that Ms Man’s left knee has no anterior cruciate ligament, (ACL), neither is there any lateral meniscus in the left knee.

4.At trial Mr Li expressly abandoned any contention of contributory negligence.

5.Mr Li said that there was a issue as to whether or not Citywise and Hung Mau are vicariously liable for the acts of Mr Leung, the driver of the vehicle through which Ms Man suffered her injuries.  Mr Li accepted, however, that the issue was technical only.  Whether or not the defendants are vicariously liable, Mr Li accepts that there will be direct liability upon them as the employer and head contractor of Ms Man respectively, as against vicarious liability for the acts of Mr Leung as a driver.

6.Nothing at all turns upon the resolution of the issue.  It is purely academic.  Mr Li acknowledged that any liability of the contractor defendants would be met by insurance held by them in relation to workplace matters.  In those circumstances it is simply not necessary for me to consider the technical route to liability.

7.At issue are the consequences of Ms Man’s pre-existing condition in relation to damages, and the extent of the damages to be awarded.

The accident:

8.At about 8:40 a.m. on 27 November 2001, Ms Man, together with six fellow workers, were at a construction site at Hung Hom.  The site was a depot for Citywise.  Ms Man and the six workers were instructed by Citywise’s foreman to board a van driven by Mr Leung, to be transported to another construction site where they were to work that day.

9.Initially Ms Man and another female worker were assigned to sit in the front passenger seat, and four male workers were to sit at the back.  Because of limited space in the rear passenger cabin of the van, Ms Man and the other female worker were asked to swap seats with two of the male workers.

10.Ms Man was the last to board the van, entering through the sliding door on the left side, (passenger’s side), which gave access to the rear compartment.  While Ms Man was in the course of boarding the vehicle, and before she was seated and the sliding door closed, Mr Leung commenced driving away.  Ms Man lost her balance falling from the van, but managing to hold onto it as it drove along.  Her evidence, unchallenged, was that she cried out for help, but because of noise on the construction site, and chatter between the passengers in the van, no one noticed her.

11.She hung on to the van.  She said in her witness statement that the van carried on for some 200 m before someone noticed, and the van stopped.  She reviewed that estimate at trial to 100 m.  While I have no doubt at all that the accident occurred as she described it, I place little weight on her estimate of the distance she was dragged.  The incident was plainly a traumatic experience for her, during which she would have been concentrating on avoiding injury, and consequently have had little opportunity to make any reliable estimate of the distance she was dragged.

12.Upon Ms Man attracting the attention of those in the van, the driver, Mr Leung, brought the van to an emergency stop, causing Ms Man to be thrown to the ground.

Did the accident cause knee injury:

13.Mr Li’s contention was that in those circumstances Ms Man could not have suffered a rotational injury to her left knee.  Mr Li relied upon a medical report from the Accident and Emergency, (Western Medicine), Department at Kwong Wah Hospital which recorded injury only to Ms Man’s right knee.  Mr Li was obliged to acknowledge however that upon release from that department Ms Man went immediately to the Chinese Medicine Department at Kwong Wah Hospital.  That department duly recorded injuries to both knees.

14.Ms Man’s description of the accident had her hanging from the vehicle, and it is plain that her feet and legs were, at least from time to time during the course of the incident, in contact with the ground.  Upon the van making an emergency stop Ms Man was thrown to the ground. 

15.The evidence is not such as to enable me to determine the precise ergonomics of the whole incident.  Having regard to her description of the accident I am satisfied that it is more likely than not that the first part of Ms Man’s person to contact the ground would have been her feet and legs.  But it is plain from the description given by Ms Man, a description which, in the absence of evidence from the defendants, was unchallenged, and which by itself, with the limitation upon the distance, was perfectly believable, that it was entirely probable that in the course of the incident Ms Man suffered rotational injuries to her knees.  I am satisfied on the balance of probabilities that the injuries suffered by Ms Man occurred in the course of the accident.

Liability:

16.It is unarguable that Mr Leung was negligent in his driving of the van.  He paid no attention at all to whether or not his passengers were safely on the vehicle, and upon being warned that Ms Man was not yet in the vehicle he continued to drive, before stopping in a dangerous manner.

17.It is clear that liability for the injuries consequent upon the accident must fall upon the defendants.  The precise route by which the contractor defendants may be found to be liable is irrelevant.  Mr Li acknowledges that the contractor defendants must be liable for the consequences of the accident.

The pre-existing condition:

18.On 3 December 2001, six days after the accident a CT scan showed that the ACL in Ms Man’s left knee was chronically torn.  An MRI scan undertaken in November 2003, demonstrated a complete ACL tear, and that all of the residual ACL fibres had been reabsorbed into the body.  The MRI also demonstrated a complete loss of the lateral meniscus.

19.The opinion of Dr Chun Siu Yeung, an orthopaedic surgeon instructed by the defendants, was that the time required to achieve the total reabsorption of the ACL fibres, and a complete loss of the lateral meniscus must be more than two years.  Dr Johnson C K Lam, an orthopaedic surgeon instructed by Ms Man, did not challenge that conclusion.  The inevitable conclusion from that evidence is that the ACL tear disclosed by the CT scan on 3 December 2001, could not have been a consequence of the accident.  That is confirmed by the fact that the report of the CT scan demonstrated that there was chronic.

20.I have considered the medical reports carefully, (neither doctor was called), and accept the evidence of Dr Lam.  I find that on the balance of probabilities, Ms Man’s pre-existing condition was essentially asymptomatic prior to 27 November 2001.  I do so for the following reasons.

21.A tear of the ACL will usually only occur as a result of a significant traumatic event.  Ms Man had no recollection of any such event.  With one exception only, an incident in 1999-2000, there was no evidence of Ms Man having experienced any prior left knee pain.  Ms Man disclosed that incident to Dr Lam, but told Dr Chun that she had been in good health and suffered no prior injury “so far as she could recall”.  Mr Li submitted that she was, in this respect, evasive and tried to hide her preaccident injuries.  I do not accept that submission.  Ms Man was perfectly open about the prior experience of knee pain, from which she had recovered.  The incident that she did not disclose to Dr Chun was a minor event, and in my view not such as to lead a person to say they had “not been in good health”.  The statement made to Dr Chun was not a direct statement in relation to the previous condition of the knee, but a general statement of her health.

22.The complete disappearance of the ACL fibres following a tear, and the absence of the meniscus, is highly unusual.  Dr Lam was of the view that had a patient suffered sufficient injury in childhood, resulting in a substantial tear of the ACL, the patient may no longer have any recollection of the incident, and may have learned to compensate for the lack of the ACL.

23.In his report Dr Lam reviewed the literature, noting a classic paper reporting the results of rehabilitation and activity in 84 symptomatic patients with chronic ACL injuries.  I emphasise symptomatic, because it must be remembered that Ms Man contends that she was essentially asymptomatic prior to the incident.  The paper reported that one third of patients compensated well, with minimal symptoms, one third of patients required significant restriction, and one third required surgical reconstruction of the knee.  The opinion of Dr Lam was that it was most likely that, a long time ago, Ms Man had suffered an isolated injury to the ACL, following which she had learned to compensate, enjoying functionally a normal knee, notwithstanding the absence of the ACL and the meniscus.

24.Dr Chun on the other hand was of the view that as two thirds of the group suffered symptoms it was more likely than not that Ms Man’s condition prior to the incident was not asymptomatic.

25.The fact that two thirds of the study group suffered symptoms, while making it more likely than not that symptoms will be suffered in a person with chronic ACL injury, does not make it more likely than not that Ms Man must have been symptomatic.  The proportion of the group suffering symptoms is merely one matter which goes into the consideration prior to the drawing of the appropriate inference after a review of the whole of the evidence.

26.In weighing Ms Man’s evidence as to her pre-existing condition I have particular regard to the fact that following the accident Ms Man diligently undertook a work hardening program at the occupational therapy department of Prince of Wales Hospital.  It is common in cases such as this for patients to prefer to rely upon the extent of the injury as a means of not working, and to avoid matters that might take them back to work.  Ms Man impressed me, from her personal domestic background as a single mother diligently bringing up two children alone, and a person who was determined to work rather than to be dependent upon Comprehensive Social Security Assistance, as a person who was honest, straightforward and hard-working.

27.It is entirely consistent for a person who would take steps to restore her working ability from an accident as Ms Man has done, to have been able to compensate for an injury many years ago, and not to allow the injury to dominate her life.  I accept Ms Man’s evidence as to her preaccident asymptomatic condition.  In reaching this conclusion I have full regard to the findings made below in respect of the videotaped surveillance evidence.

28.In all of these circumstances I find that it is more likely than not that many years ago, in all probability in childhood, Ms Man suffered an injury that resulted in a substantial tear of the ACL in her left knee.  I am satisfied that prior to the accident Ms Man was asymptomatic, and over a long period of time had learned to compensate for the absence of the ACL and meniscus.  I am satisfied on the balance of probabilities that in the accident Ms Man suffered a rotational injury to her left knee.  Having regard to her preaccident condition, the injury was to an essentially normal knee, notwithstanding the absence of ACL and meniscus.  That injury has resulted in the symptoms from which Ms Man now suffers.

Videotaped surveillance evidence, and the issue of exaggeration:

29.I have carefully reviewed the videotape evidence.  In reviewing that videotaped evidence I have had regard to the demeanour demonstrated by Ms Man in court.  She had a great deal of difficulty manoeuvering herself from the public seating area to the witness box.  I am satisfied that in so doing she was exaggerating her position.  Her manner of movement was quite inconsistent with that displayed in the surveillance evidence.

30.Mr Li would have me place great weight on this exaggeration, as evidence of an overwhelming intention on the part of Ms Man to exaggerate the case.  Ms Man is not an educated person.  She is not familiar with courts or doctors.  It is quite common for people in those circumstances to exaggerate their disability when faced with a trial in a court, a circumstance upon which so much hangs for them, and a circumstance of which they are so unfamiliar.  It does not follow that exaggeration of physical appearance means that in all other respects the person has exaggerated their circumstances.  The fact of the exaggeration is merely one element to be taken into account. 

31.In assessing the videotape evidence I have had due regard to the assessment made by Dr Chun as to that evidence.  With the greatest respect to Dr Chun, I have formed the view that he has taken an extreme position in assessing that evidence.  On my observation of the surveillance videotape, Ms Man regularly suffered from a limp, although Mr Yau went too far in asserting that “she dragged her left leg along”.  I am satisfied however that Ms Man favoured her left leg, and tended to place more weight on her right leg, thereby producing a limp.

32.The surveillance videotape confirms the view that I have formed that Ms Man would have difficulty returning to work on a construction site, with all of the uneven surfaces, bending and squatting, that such work requirements.  She would be capable of undertaking some less strenuous work, where she was not exposed to such restrictions.

PSLA:

33.Mr Yau cited the usual comparables in relation to PSLA, and submitted that the award should be in the region of $400,000.  Mr Li cited other comparables then said that PSLA should be in the region of $100,000-$150,000.

34.The degree of pain suffered by Ms Man is not, compared to other injuries that come before the court, severe.  Ms Man is unable to squat freely, an exercise that plays an important function in the life of Hong Kong people, both at home and at work.  I am satisfied that she will suffer regular pain and discomfort in the knee, pain and discomfort which will vary from time to time, from virtually nonexistent, to a level of discomfort that will require occasional analgesic relief.  Ms Man did not take part in any particular sporting activities which will be affected by the consequences of the injury.  Although she is able to perform most household tasks satisfactorily she will require some assistance for heavy tasks, and in the absence of assistance will have difficulty in performing those tasks.

35.Weighing all matters, I am satisfied that an appropriate sum for PSLA will be the sum of $250,000.

Loss of earnings:

36.It is agreed that Ms Man’s monthly salary at the time of the accident was $6,862 per month.  Ms Man was given sick leave until 15 September 2006, with the exception of a three-month period when she endeavoured to resume work in 2003.  She has regularly attended physiotherapy and other treatment programs as advised by her physicians.  Having regard to the whole of the evidence I do not accept Dr Chun’s suggestion that she was fit to return to work six months after the accident and that pre-trial loss of earnings should be so restricted.

37.I accept Mr Yau’s assessment of pre-trial loss of earnings, inclusive of MPF, at $413,347.

38.Both parties were in agreement with a multiplier of eight for post-trial loss of earnings.  Mr Li suggested that Ms Man could undertake my duties such as a cashier.  In the usual way the role of security guard was also suggested.  Ms Man is capable of returning to some light duties, but it will be inevitable from the fact that her ability will be restricted by the injury, that there will be some future loss of earnings.  Taking a broad view of the matter I assess that at $2,000 per month, a sum of $192,000, together with loss of MPF on that sum of $9,600, a total award of $201,600.

Loss of earning capacity:

39.The evidence does not suggest that she has suffered such a disadvantage in the labour market consequent upon the injury that would justify an award of loss of earning capacity, in addition to future loss of earnings.  I make no award under this head.

Special damages:

40.Four items of special damages were claimed.  In the usual way some of these were supported by documentation and others not.  Mr Li took no exception to the medical expenses claimed.  There was no exception to the Bonesetter’s fee. 

41.The use of tonic food by Hong Kong people in circumstances such as these is usual and is often not fully documented.  The claim made with the $10,000.  In the absence of documentation I allow $5,000. 

42.Travelling expenses were undocumented, but I accept there will have been regular travelling expenses for medical treatment and physiotherapy.  In the absence of documentation however claim for $12,000 cannot be justified.  I allow sum of $6,000.  Special damages accordingly total $15,090.

Judgement:

43.There will accordingly be judgement for the plaintiff in the following sums:

PSLA:	250,000
pre-trial loss of earnings and MPF	413,317
post-trial loss of earnings and MPF	201,600
Special damages	15,090
Total	$880,007

Costs and interest:

44.Interest must be paid on the sums awarded, on PSLA at the rate of 2% from the date of the writ to the date of judgement, interest on other damages at half judgement rate from the date of the accident to the date of judgement.  Thereafter the full sum shall carry interest at judgement rate until payment.

45.The defendants must pay the plaintiff's costs of and incidental to the action.  If required, the plaintiff's costs will be taxed on Legal Aide Regulations.

Ms Albert Yau instructed by Messrs Ambrose Ng & Co assigned by DLA, for the Plaintiff

Mr Andrew S Y Li, instructed by Messrs W K To & Co., for the 1^st, 2^nd and 3^rd Defendants