Lau Kwok Chiu v. Senfield Ltd t/a Tsui Wah Restaurant

HCPI 245/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 245 OF 2006

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BETWEEN

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Before: Hon Barnes J in Court

Dates of Hearing: 22, 23 and 24 January 2007

Date of Handing Down Judgment: 8 March 2007

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JUDGMENT

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1.Mr Lau Kwok Chiu, the plaintiff in this case, was and still is a watch assembler.  In early March 2002 he took up a part-time job with the Central branch of Tsui Wah Restaurant (“the restaurant”), working between noon and 3:00 p.m.  In the evening of 18 March 2002, the plaintiff went to the Accident and Emergency Department of the United Christian Hospital (“UCH”) and he was found to have suffered from a dislocated right shoulder and fractured right shoulder joint.  He was admitted to the Orthopaedic Department and was discharged on 22 March 2002.

2.It is the plaintiff’s case that he slipped and fell while carrying two bowls of hot wonton noodle from the noodle section of the Restaurant on the ground floor to customers sitting at table 28.  He claimed the floor, which was tiled and not covered by any anti-slip mat, was wet when he lost balance and fell, hitting his right elbow against the ground.  Although the pain was tremendous, he felt all right after receiving a massage from the dish-washing lady and did not realize how seriously he was injured.  It was only in the evening when he again felt excruciating pain that he sought medical attention at the UCH.  The plaintiff complained of residual pain and disability since sustaining the injury.

3.The plaintiff claimed against the defendant for damages as a result of the accident, basing his claim on breach of an implied term of the contract of employment, occupiers’ liability, and negligence.  Basically the plaintiff alleged that the defendant failed to provide a safe system and place of work.

4.The defence, on the other hand, absolutely denied that there was ever an accident in which the plaintiff fell as alleged.

Liability

5.On the issue of liability, it is for the plaintiff to prove, on a balance of probabilities, that :

(a)      he did slip and fall while working in the Restaurant, and

(b)     the circumstances of his fall were such that the defendant was shown to be liable for the injuries sustained and damages suffered.

6.The plaintiff was the only witness on the issue of liability.  He adopted the contents of his statement dated 6 September 2006 (which is in English and, on the face of it, has been read and interpreted to him by a law clerk of the Legal Aid Department) as evidence.  He also gave oral evidence in court.

7.Apart from his testimony, the plaintiff also relied on the fact that the defendant admitted the occurrence of the accident and the plaintiff’s injury in its report to the Labour Department, i.e. the Form 2.

8.The defence called three witnesses.

9.Two witnesses were called to testify that no such accident as alleged by the plaintiff occurred in the Restaurant.  They were Mr Cheung Yu To, a shareholder of the defendant responsible for the Restaurant in question (who was also the “boss” identified by the plaintiff in court), and Mr Choy Chi Wai, a supervisor working at the Restaurant.

10.The other defence witness was Ms Leung Lai Ching, an accounts supervisor of the defendant.  Her evidence mainly concerned the circumstances under which the defendant came to file the said Form 2 with its contents.

11.In his statement, the plaintiff said just before he ended his shift at 3:00 p.m. he noticed three bowls of noodles waiting to be brought to table 26.  As an inexperienced waiter who only worked for two weeks, he was not confident enough to carry all three bowls at the same time and only carried two.  When he walked towards the table he stepped on the wet floor, slipped and fell.  He said his right shoulder landed on the floor and he felt great pain.  A colleague known as “Brother Tung” helped him to his feet.  The “boss” also came over to see if he was all right.  The supervisor [Choy] Chi Wai was around but did not come to his assistance.  He sat down to rest and a dish-washing lady massaged his shoulder for a while and he felt better.  He continued to work until the end of his shift.  Though painful, he thought the injury was a simple contusion and did not immediately seek medical treatment.  As the pain intensified over the course of the evening he sought medical treatment at the UCH.

12.The plaintiff also said in the statement that he telephoned [Choy] Chi Wai one to two days after the accident and informed him of his (the plaintiff’s) hospitalisation as a result of the injuries sustained during the accident.  Mr Choy told the plaintiff he would inform the boss of the seriousness of the injury.  When the plaintiff returned to work on 8 April 2002, he was informed by “Brother Wan” (who had replaced [Choy] Chi Wai) that his service was no longer required.

13.When the plaintiff gave oral evidence in court, he basically repeated what he had said in his statement as far as the accident was concerned, with certain elaboration.  He described how he carried one bowl of noodle in each hand when negotiated his way behind a pillar along a passageway (as shown in photographs at pages 97 and 99 of the bundle).  He said while he was walking slowly towards table 26 or 28, somehow he lost balance and fell.  The plaintiff said that at the time the floor — which was not covered by any anti-slip mat — was wet, though he could not tell whether it was from water or oil.  The plaintiff said his right elbow hit the floor first and he felt great pain in his right shoulder.  A dish-washing lady came to his assistance and he sat outside the dish-washing room.  He said no other staff members had come to see how he was doing.  As the accident occurred around 2:45 p.m., it was close to his knock-off time, he therefore left after resting for some 20 to 25 minutes without resuming work.

14.As to why the passageway and the floor near table 28 were wet, the plaintiff gave this explanation : metal trays containing glasses with tea were stacked, tier upon tier, on the top shelf of a sideboard or side table standing next to the wall; water from the worn and battered trays was spilt onto the floor of the passageway.  The plaintiff also said that staff of the Restaurant, including him, would mop up the wet floor from time to time.

15.One can readily see that there were discrepancies between the plaintiff’s witness statement and his oral testimony.  Apart from the table number being 26 or 28 (which is not of great significance), other differences include : Which part of his body landed first — his shoulder or his elbow?  Did a Brother Tung help him up, with the Boss coming over to see if he was all right?  Or was it the case that no one apart from the dish-washing lady came to him?  Did he continue to work after the fall?  Or was it the case that he rested for sometime and left the Restaurant?

16.When the discrepancies were drawn to his attention during cross-examination, the plaintiff said he had no recollection of what was said in his witness statement about Brother Tung and the boss.  He further queried how it could have been that it was his shoulder that landed on the floor first.  He claimed he could not have said such about his shoulder and that the law clerk had not explained the contents of his statement to him properly.  When the discrepancy in relation to whether he continued to work or not, he claimed that he had never said anything about continuing to work until the end of his shift and that the law clerk has misled him.

17.When it was put to the plaintiff that the floor was not wet at the time, he answered by way of a question : “How could I have lost balance if the floor was not wet?”  When it was put to him that people do fall for various reasons, not necessarily wetness of the floor, the plaintiff replied : “To be fair, I cannot say whether the floor was wet or not.”

18.I will deal later with the discrepancies in the plaintiff’s versions and will deal with the defence evidence first.

19.Both Mr Cheung and Mr Choy were adamant that no accident as alleged by the plaintiff took place at all.  Mr Cheung particularly denied the plaintiff’s allegation (made in the plaintiff’s witness statement) that he (i.e. the boss) witnessed the accident and came to see if the plaintiff was all right.  Mr Cheung testified that as he was present at the Restaurant daily from 11:30 a.m. to 4:00 p.m., had there been such an accident in which an employee fell while holding two bowls of noodles, the commotion would have alerted him and other staff members, it was therefore not possible for him not to have known.  He also said he had checked the entries in an “Occurrence Book” — which has since been destroyed — and he did not find any record of such an accident.

20.Mr Choy testified that he was present in the Restaurant on the day in question and did not notice any accident, nor did any member of staff notify him of any such accident.  Mr Choy further said that the plaintiff came to him sometime after 3:00 p.m. to acknowledge receipt of the wages covering 1 March to 15 March 2002.  A copy of the acknowledgement was adduced (together with the supplementary statement of Mr Choy dated 23 January 2007).  Mr Choy said the plaintiff did not mention anything about being injured during work nor did he appear to be unwell.  Mr Choy denied ever speaking to the plaintiff one to two days after 18 March 2002 as alleged by the plaintiff.

21.Both Mr Cheung and Mr Choy gave evidence that the passageway in question was covered by anti-slip mat as shown in the photographs from the very first day the Restaurant commenced business.  According to the defence, the mat was replaced once every two months.  A team of cleaners were employed by the defendant to carry out cleaning duties, which was done five times a day (at 6:30 a.m., 10:30 a.m., 2:30 p.m., 5:00 p.m. and 9:30 p.m.).  The anti-slip mat was dry-mopped should there be spillage.  The defence denied the plaintiff’s allegation of tiers of worn trays containing glasses of water causing spillage constantly.  Rather, the glasses stack on the sideboard or side table were cleaned and empty (as shown in photograph at page 97 of the bundle).  The defence also claimed that everyday at around 3:30 p.m. the mat was taken out to the back alley for wet cleaning with bleach and detergent.

22.Ms Leung’s evidence was that when the defendant received a letter dated 18 April 2002 from the Labour Department about an employee of the defendant having sustained injury, she then learnt for the first time that the plaintiff was an employee and that there was an alleged accident involving the plaintiff.  She made enquiries with the Restaurant and found that no one knew of the accident.  Ms Leung then telephoned the plaintiff.  After learning from the plaintiff of the alleged accident, she asked the plaintiff to bring along the sick-leave certificate and the doctor’s report, etc.  Before the plaintiff brought along the sick-leave certificate, the defendant received another letter from the Labour Department, urging the defendant to file the Form 2.  Ms Leung said she ascertained from the Labour Department that there was a need to file the Form 2 even in a “suspected case”, she therefore instructed her colleague (Mr William Kwok) to fill in the details for the Form 2 and she signed it.  She said she obtained the relevant information for the Form 2 from the plaintiff which she passed on to William Kwok.

23.On 8 May 2002 the plaintiff went to Ms Leung’s office and produced the sick-leave certificate.  The plaintiff also told Ms Leung how the accident occurred.  Ms Leung asked the plaintiff to put down in writing the course of the accident.  She later received a written statement from the plaintiff dated 21 May 2002, giving details of the accident.

24.It is of interest to note that in this statement (which is hand-written), the plaintiff claimed that he was carrying one bowl of wonton noodle when he fell.  Brother Tung helped him up.  Chi Wai saw what had happened and the boss had come over.  There was no mention of the floor being wet.  Nor was there any mention of a massage given by the dish-washing lady.  The plaintiff also mentioned having called and spoke to Chi Wai on the next day.

25.After reading the plaintiff’s said statement, Ms Leung wanted to ask Choy Chi Wai in relation to the plaintiff’s assertion.  She was not able to do so as Choy was on long leave.  In the meantime, the plaintiff was making claims that he has been wrongfully dismissed.  Ms Leung therefore wrote to the Labour Department on 10 June 2002, setting out the situation as she understood.  In that letter, Ms Leung raised this query with the Labour Department : why was it that the work-related injury occurred on 18 March 2002 and yet it was not until after 8 May 2002, almost two months later, that the defendant received the sick-leave certificate and was informed of the accident?  Ms Leung said raising such a query at that time would demonstrate that the defendant was truly not aware of the alleged accident.  When asked why the defendant did not amend the particulars of Form 2 after learning that no such accident had occurred, Ms Leung said she was not aware the defendant could do that.

26.The information regarding the letters from the Labour Department and the plaintiff’s statement dated 21 May 2002 were only adduced while Ms Leung was giving evidence.  Although I have given indication that I would allow the plaintiff to re-open his case to deal with these new matters, no such application was made and there is nothing from the plaintiff to contradict Ms Leung’s version of the event.

27.After carefully considering and evaluating the evidence, I come to the conclusion that the accident did not occur in the Restaurant on 18 March 2002 as claimed by the plaintiff.  No doubt the plaintiff did sustain from a dislocated shoulder and the fracture sometime on 18 March 2002 before he was admitted into UCH, but I am not satisfied, on a balance of probabilities, that the plaintiff did slip and fall while working in the Restaurant as claimed.

28.I have already pointed out the discrepancies between his version as stated in the witness statement dated 6 September 2006 and his evidence in court.  His statement dated 21 May 2002 gave yet another version of the event : the plaintiff was then not balancing two bowls of noodles, but carrying one bowl when he fell.  There was nothing about the floor being wet or slippery either.

29.While I take into account the fact that a witness might not remember all the particulars when giving evidence, particularly when the incident has taken place some years ago, I do not think it is due to memory fault that the plaintiff has given me different versions.  I do not see how it could be that he was misled by the law clerk into saying that he continued to work until the end of the shift after sustaining the injury, for instance.  Or how the law clerk had misled him into saying it was his shoulder that hit the ground first when it should have been his elbow!

30.In both his written statements (i.e. his witness statement and the statement he gave to the defendant upon Ms Leung’s request), the plaintiff mentioned “the boss” coming over to have a look.  Mr Cheung in his written statement dated 28 September 2006 made specific reference to the plaintiff’s allegation in the September 2006 statement, saying that as far as he recalled, he did not see the plaintiff’s fall.  Before coming to court, the plaintiff must have realised what the defence witnesses were going to say.  After all, their statements (apart from the supplementary ones) were provided to the plaintiff before the case was set down for trial in the Running List.  I strongly suspect the plaintiff retracted from this allegation (i.e. the boss came over to have a look) when he realised Mr Cheung will be giving evidence to contradict his version.

31.I do not find the plaintiff an impressive witness.  I do not find him honest or truthful.  In my view, he is prone to exaggerate and is prepared to make wild allegations against someone when he found himself cornered.

32.The plaintiff’s failure to give details of how and why he fell also throws doubt on his version of the event.  I have already pointed out that in his May 2002 statement there was nothing about the floor being wet.  In his witness statement he said the floor was wet.  He repeated the same when giving evidence-in-chief.  The question and answer he gave under cross-examination also cause me concern.  By asking this question : “How could I have lost balance if the floor was not wet?” and then admitting he could not say if the floor was wet when it was put to him that people do fall for various reasons, the plaintiff’s response demonstrated to me that he was not even sure if he had fallen because of a slippery floor!

33.A fall resulting in the dislocation of one’s shoulder is not a minor incident.  Even though the incident happened a few years ago, such a traumatic event should have left some deep impression in the plaintiff’s mind.  I find the lack of particulars wanting.

34.On the other hand, I find Mr Cheung an honest and truthful witness.  I accept his evidence that he did not witness and was unaware of any such accident.  I accept his evidence that he has checked the “Occurrence Book” and did not find any record of such falling, despite the fact that such an assertion was never pleaded and the said Occurrence Book was never produced in court.  I accept that the anti-slip mat has been placed along the particular passageway when the Restaurant was first open for business.  I accept that had the plaintiff indeed met with such an accident as claimed, Mr Cheung would have done something positive to assist.  I do not accept the plaintiff’s version of Mr Cheung’s involvement stated in both of his written statements.

35.As far as Mr Choy is concerned, I find, on a whole, that he is an honest and truthful witness.  I accept his evidence as to the presence of the anti-slip mat being present from day one.  I accept his evidence as to the daily cleaning schedule adopted by the defendant.  I accept his evidence that only cleaned and empty glasses were stacked on the sideboard or side table at the time, not glasses with water.  I accept his evidence as to what had happened on 18 March 2002.  I accept his evidence that not only did he not witness the plaintiff fall, he was unaware of any such incident.  I accept his evidence that the plaintiff made no complaint to him when he signed for his pay-cheque before leaving the Restaurant on that day.

36.I have some reservations, however, regarding Mr Choy’s evidence about the plaintiff’s call to the Restaurant one or two days after 18 March 2002.  Mr Choy was adamant that the plaintiff never called to speak to him.  The plaintiff was equally adamant that he did.  It is not in dispute that the plaintiff was hospitalized after he went to the UCH in the evening of 18 March 2002.  As a part-time worker, it does not make good sense for an employee not to inform the employer of his inability to attend work due to the hospitalization.  I am satisfied that the plaintiff did call and did speak to Mr Choy, informing him that he (the plaintiff) could not come to work due to the hospitalization.  I am also satisfied that there was no mention by the plaintiff of having sustained the injury during work in the Restaurant.  

37.Though I do not accept this part of Mr Choy’s evidence, I do not find that Mr Choy has lied to me deliberately.  The plaintiff claimed that the telephone call was about the injuries he sustained during the accident as well as his hospitalization.  As Mr Choy did not witness any accident as alleged, he has simply denied ever having received such a call from the plaintiff, forgetting that he has indeed received the plaintiff’s call about the hospitalization only.

38.I find Ms Leung an honest and truthful witness.  I accept her evidence as to how the Form 2 came to be fill-in and filed, and why no attempt was made to amend the contents once the defendant was aware no such accident had taken place.

39.It is not in dispute that in the Form 2, the defendant reported that the accident occurred “when [the employee] delivered noodles to customer(s), he fell to the ground due to carelessness”, and that the injury sustained was “dislocation of right shoulder”.

40.Mr Carl Yuen, counsel for the plaintiff, submitted that the plaintiff is entitled to rely on the Form 2 to prove the occurrence of the accident and the burden of disproving the accident is shifted to the defence. Mr Yuen relied on the Court of Appeal judgment of United Ford Development Limited t/a King Ford Mahjong Club v. Fung Yin Yee & Others, [1993] 2 HKLR 290.

41.Mr Victor Gidwani, counsel for the defendant, submitted that Form 2 does not constitute an admission of any fact and the court is not bound by it.  He relied on the judgment of Lam Geotechnics Ltd v. Wong Kai Hung, DCEC322/2005.

42.Having considered both judgments and the cases cited therein, it is my judgment that contents in the Form 2 are not to be regarded as “admissions” in the legal sense so that the defendant is bound by it or estopped from denying it.  In other words, the court cannot simply rely on the contents of the Form 2 to find against the defendant.  If there has been no evidence to explain why the defendant has described, as it did, that the accident occurred while the plaintiff was working as its employee, the court would then be fully entitled to draw reasonable inferences from such contents to see if the reasonable inferences drawn would lend support to any other evidence so as to assist the court in its findings.

43.In the present case, it is my judgment that the defence has fully explained how and why the Form 2 was filed in those terms so no inference adverse to the defendant would be drawn.

44.It is not in dispute that on 30 August 2004 the plaintiff accepted the payment of $166,700 from the defendant to settle his claim against the defendant for damages arising out of a work-related accident.  Such payment by the defendant does not amount to any admission or estoppel precluding the defendant from asserting that the plaintiff did not suffer any fall while working at the Restaurant.  On the other hand, since the plaintiff did receive the payment, credit must be given for such sum should liability be proved.

45.I have already indicated that the plaintiff has failed to satisfy me, on a balance of probabilities, that he slipped and fell while working in the Restaurant.  I wish to add that although there was a reference by Dr Ho Hon Shuen of UCH, in a report dated 15 November 2004, that the plaintiff “slipped and fell with right shoulder injury while at work”, not only that such a statement is hearsay, it does not mean that the plaintiff sustained injury while working for the defendant either, as the plaintiff was then also working as a watch assembler for another employer.

46.I would also add here that in his submission, Mr Carl Yuen referred to a “History Sheet” compiled by Dr Fong, which was not part of the trial bundle.  Although there is a reference to this document being disclosed to the defence, the fact is that it was never a document before me.  How I could be asked to rely on its contents, which is also clearly hearsay, is quite beyond me.

47.In my view, even if I were to find that the plaintiff did slip and fall while carrying a bowl or two of wonton noodle to customers, I would still have found, on the evidence before me, that the plaintiff has failed to prove his fall was as a result of any breach of contract or duty on the part of the defendant.

48.The plaintiff’s claim against the defendant must therefore fail.

Quantum

49.For the sake of completeness, I will go on to assess damages on the basis of full liability.

Injuries and treatment

50.On admission to the UCH, X-ray taken revealed a dislocated right shoulder with fractured glenoid.  The plaintiff was transferred to the Orthopaedic and Traumatology Department of UCH where he was treated with closed reduction.  Surgery was suggested but the plaintiff declined due to the uncertainty of the success rate.  He was hospitalized until 22 March 2002.  Although an immobilizer was provided, due to discomfort the plaintiff only wore it for a short period of time.

51.The plaintiff was given sick leave intermittently since 2002.  Sometimes he was given just a few days, sometimes a month or two.  He was given analgesics for pain control.  He was advised to undergo physiotherapy but his compliance was poor.

52.On 28 June 2004 the plaintiff undergone another CT scan and a Hill Sach lesion over the humeral head was found.  Such lesion was not shown in the CT scan taken a few days after the accident.

Plaintiff’s general complaints

53.The plaintiff still complains of pain and discomfort in his right shoulder which is affecting his daily life and his work.  He said that he could only carry light items when taking the MTR.  As he is required to position his arm in a particular way to minimize pain, he chooses not to sit when travelling on the MTR or the bus so as not to disturb other passengers.  He claims the pain is so bad that he has to sleep with a pillow under his arm.

54.The plaintiff said his job as a watch assembler requires him to insert the watch hands and then locked the back of the watches.  He has to hold a twister to put in the hands.  As to the locking of the back, there are basically two movements, both involving the use of his dominant right hand.  He either has to turn the back in a clockwise direction or to exert pressure in pressing down a mould.  He then has to fasten the screws at the back.  Not only that he experiences great pain while doing these two movements, the tightening of the screws is also painful for him.  The pain lingers on even after he had finished work.  The sensation he felt is a sharp searing hot pain around his shoulders, he claims.

55.The plaintiff said that for over two years he could no longer manage the pain by taking painkillers and applying ointment.  He has been repeatedly advised to undergo surgery, however, as no doctor could give him 100% assurance that the surgery would be a success, he decided not to have the operation in case something went wrong and he could no longer use his fingers and hand to assemble watches, which is the only skill he has.  The plaintiff stated that no matter how much pain he has to endure, he would not agree to have an operation.

56.The plaintiff said he used to assemble on average 250 watches a day before the accident.  However, business has since declined and he assembled about 100 per day.  The plaintiff stated that those were only average figures.  He could still do 200 to 300 watches a day, the only difference is that it would take him longer to finish his “quota”.  The pain is there but it is bearable for the work.  The plaintiff is worried that he would not be able to keep up should the business becomes good again so there is a chance he would be laid-off.  He is also worried about his chance of finding any other suitable employment.

57.Regarding the other part-time jobs undertaken by the plaintiff after the accident, in his September 2006 statement, the plaintiff said he was employed by a company called Hop Lick to deliver packages between the HSBC and Hang Seng Bank.  In March 2005, he lost some documents and was required to bring a receipt to HSBC to try tracing the documents.  He has a big order waiting for him at the watch company so he did not have time to go to the HSBC.  He said he was fired.

58.In court, the plaintiff repeated this story of losing some documents and the instruction to go to the HSBC.  However, the plaintiff made it clear that he was not fired, but that he resigned as Hop Lick was asking him to go to HSBC beyond his working hours with that company.

59.In court, the plaintiff also mentioned another part-time job he has undertaken with “Louis Vitton”.  The plaintiff said he thought he would be required to carry light-weighted bags but he was instead required to carry very heavy objects, such as 8 kg weight catalogues.  He therefore gave notice and left after a week.

Medical experts

60.The plaintiff was examined by Dr Fu Wai Kee on 22 September 2005 and Dr Danny Tsoi on 20 February 2006.

61.Physical examination of the plaintiff’s right shoulder by Dr Fu disclosed that there was tenderness but no wasting of shoulder girdle muscles or deltoid.  Impingement and Howkin’s signs were positive on the right side.  There was a decrease in range of movement and power in the right shoulder.  Dr Fu also found full power and range of movement in the plaintiff’s elbows, wrists and hands.  The girth of both arms and forearms are symmetrical.  The plaintiff also has full range of movement of his neck.

62.Treatment for dislocation of right shoulder with fracture glenoid is usually a period of immobilization and physiotherapy after close reduction, Dr Fu commented.  After learning that the plaintiff removed the shoulder immobilizer himself shortly after wearing it, Dr Fu commented that shoulder immobilization is not always required for a patient aged over 40 if that is the first shoulder dislocation.  He also pointed out that literature had well documented that for older patients, shoulder immobilization would cause stiffness of shoulder, elbow, wrist and finger.  The immobilization would, however, prevent further dislocation.  Dr Fu found the plaintiff did not suffer from stiffness of elbow and finger.  He is of the view that the plaintiff’s non-compliance with the wearing of the immobilizer should not be blamed for the recurrent shoulder instability.

63.Regarding the Hill Sach lesion found in the CT scan in 2004, Dr Fu was of the view that since the plaintiff denied having suffered from another injury, and that a dislocation of shoulder usually requires close reduction under sedation and there is no medical record showing the plaintiff had such a history, the lesion more likely signifies the suffering of recurrent right shoulder instability, which is the sequel of the first dislocation.

64.Dr Fu was also of the view that the plaintiff has received a course of conservative treatment but his symptoms persisted.  Arthroscopy of shoulder is suggested.  The risks of surgery include damage of neuro-vascular structures, infection and general risks of general anaesthesia.  Without surgery the plaintiff’s condition is static.

65.In his report Dr Tsoi referred to the history of the plaintiff’s complaint and that in 2004 the orthopaedic surgeon of UCH tried to persuade the plaintiff to undergo surgery.  Dr Tsoi made a reference that the plaintiff has stated his preference to have the litigation settled before deciding whether to receive surgical treatment.

66.It should be noted that when the plaintiff was cross-examined on this issue, he admitted telling Dr Tsoi that he preferred to wait until the litigation has finalized to consider if he should have an operation.  When he was asked why he has to wait until the litigation has finalized, the plaintiff never gave any explanation save reiterating that if the operation fails his fingers would be affected.

67.Result of the physical examination of the plaintiff by Dr Tsoi is basically the same as those noted by Dr Fu : full range of neck movement, no wasting of shoulder girdle muscle, decrease range of motion, etc.

68.Regarding the immobilizer, Dr Tsoi is of the view that chances of further dislocation is higher if the joint is not properly immobilized, particularly when the dislocation is complicated by bony defect over glenoid.  He noted that the plaintiff has declined to wear the immobilizer.

69.In relation to the Hill Sach lesion, Dr Tsoi noted that the plaintiff’s shoulder was in good condition during a follow-up session on 19 August 2002.  The plaintiff again attended UCH on 30 June and in August 2003.  CT scan taken in 2004 revealed the said lesion.  Dr Tsoi was of the view that the plaintiff probably suffered from a second dislocation between 19 August 2002 and 30 June 2003.

70.Regarding the plaintiff’s current condition, Dr Tsoi strongly recommended surgical stabilization.  He also opined that the plaintiff’s right shoulder has attained a stage of maximal medical improvement and will not be benefited from further conservative treatment.

Findings

71.Having considered all the evidence regarding the plaintiff’s injury, I have no doubt that the plaintiff suffers certain pain as a result of the dislocation of his right shoulder with the fracture.  Although the Hill Sach lesion only appeared in the CT scan in 2004, I accept that there is no further injury since March 2002.  The plaintiff’s history of repeatedly presenting himself to the A&E Department of UCH indicates to me that if he had suffered another injury, there would have been medical record of such.  I accept that the nature of the dislocation is such that there is instability of the shoulder, causing the said lesion.

72.The plaintiff did not really comply with the doctor’s advice in relation to the immobilizer or physiotherapy.  It would appear that by discarding the immobilizer early on, he managed to preserve more flexibility on his elbows and fingers, however, the stability of his right shoulder was compromised in the process.

73.While I accept the plaintiff is currently experiencing some pain and discomfort from the right shoulder, I am not at all convinced his situation is as bad as he has portrayed.  I do not think it possible, if the pain is as intense as searing hot, that the plaintiff would have been able to get on with the kind of manual labour he described day after day for almost five years!  The fact that there is no muscle wasting and the girth of both arms are symmetrical also indicate that the plaintiff has not been favouring his right arm or shoulder, which further indicate that the pain could not have been as bad as claimed.

74.Is the plaintiff’s refusal to undergo operation a reasonable one?  The plaintiff, on the one hand, described how the pain was restricting his normal daily life and his work, yet he steadfastly refused to have surgical treatment unless the doctor can guarantee the operation is 100% risk free.  It is simply not reasonable to expect such a guarantee.  On the evidence before me, the reason why the plaintiff was not prepared to undergo operation was two-fold, firstly his situation was not nearly as bad as he claimed to be and the risk of losing dexterity of his fingers are too much to bear in the circumstances, secondly, as he had admitted to Dr Tsoi, he wanted to wait until the litigation is over before deciding whether to have an operation.  The plaintiff did not give any reason when asked what the litigation has to do with the operation.  One possible reason is that the plaintiff is hoping to get more by way of damages.  Be that as it may, the fact is that the fear of losing the use of his fingers is not the only reason why he refused operation.  That being the case, it is hard to see how it can be said that the plaintiff has acted reasonably.

PSLA

75.Bearing in mind my findings that the pain and suffering are not nearly as bad as the plaintiff portrayed, and that he has acted unreasonably to refuse operation, I am of the view that a sum of $200,000 is appropriate under this heading.

Loss of earnings

76.The plaintiff was granted sick leave from 18 March 2002 to 21 April 2002.  He resumed his watch assembling job on 10 April 2002, before the sick leave expired.  The plaintiff was able to carry on with his watch-assembling job.  He was earning less, not because of his condition, but because of the economic climate.  He said quite clearly that even if he had an order of assembling 200 to 300 watches, he would still be able to finish his “quota”, the only difference is that it would take him longer.

77.Although it was pleaded that the plaintiff might lose his job due to the injury and there was a reference of downsizing from eight to three, the prediction of him losing his job by 2006 (stated in the Revised damages) has not materialized.  He was still doing the same job when he appeared before me, almost five years after the injury!  His skill and competence was clearly to that extent that he was able to stay on despite the downsizing.  His ability to finish his quota at all times also indicates that the injury does not jeopardize his main job.  As far as the main job is concerned, he was unable to work for 22 days (from 19 March to 9 April), there is no other loss of earnings.  The loss is therefore $6,453 ($8,800/30 x 22 days), with the loss of MPF being $323 ($6,453 x 5%).

78.In relation to his part-time job, the plaintiff only worked as a part-time waiter for about two weeks before the accident.  No one knows if he would and could have been so employed for any extensive period of time.  Since the injury did not even hinder the plaintiff’s ability to assemble the watches when he was required to exert strength and twist his right arm, it is hard to see how the injury would have affected his ability to work as a waiter either.

79.The plaintiff was able to secure different part-time jobs.  It is clear that he quit the first part-time job because he did not want to jeopardize his main job, which is sensible.  On the other hand, it is not because of the injuries he sustained in the accident that he quit that job.  With the second part-time job, again, it was he who resigned from the job.  He said the weight was too much for him.  In my view, 8 kg is not really that heavy.  It is hard to see how the plaintiff is not able to carry that weight but is nevertheless able to assemble watches — on the average of 100 per day — with the kind of strength and effort he claimed he has to exert.

80.Bearing in mind that the plaintiff was indeed granted sick leave and he resumed his main job before the sick-leave period ended, I am prepared to assess loss of earnings for the part-time job on the basis that he would need six months to receive proper rehabilitative treatment and to find another part-time job.

81.The plaintiff’s monthly salary as a part-time waiter is $3,120.  The loss is therefore $18,720 ($3,120 x 6), with the loss of MPF being $936 ($18,720 x 5%).

Loss of earning capacity

82.Plaintiff is clearly a skilled worker and fortunately for him the injuries did not hinder his dexterity.  He earns $8,800 per month from this job.  Should he lose his job as a watch assembler, I accept that his injuries would restrict his chance of getting alternative full time employment.  On the other hand, I have also found that he has unreasonable refused to undergo an operation.  Having considered his monthly income, I am of the view that a modest sum of $53,000 is reasonable (round up from six months of $8,800).

Special damages

83.I will allow all the sums claimed in relation to attendance at UCH ($780 + $819 + $68) and Dr James Kong ($600).

84.No receipt is produced for bonesetter or tonic food.  I am prepared to allow a nominal sum of $2,000 for each.

85.The claim for analgesics is again not supported.  No doubt the plaintiff would have been getting painkillers on his numerous attendance at UCH.  No evidence was adduced as to why he was required to pay for such himself.  Nevertheless, I am prepared to allow $1,000 under this heading.

Summary of Quantum of Damages

Interests

87.Interest to be awarded on general damages at 2% per annum from date of writ, and on special damages at half judgment rate from date of accident, both to the date of judgment.

Costs

88.As the plaintiff has failed to prove his claim, costs will follow the event.  I will make a nisi costs order that the plaintiff to bear the costs of this action and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations, with liberty to apply within 21 days for variation of this nisi order, failing which the nisi order will become absolute.

Mr Carl Yuen, instructed by the Director of Legal Aid, for the Plaintiff

Mr Victor Gidwani, instructed by Messrs Day & Chan, for the Defendant