Yip Chi v. Wai Luen Machine Works Engineering Ltd
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DCPI 683/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION DCPI NO. 683 OF 2006 ------------------------
------------------------ Coram : Deputy District Judge Abu B. bin Wahab Date of Hearing : 12, 13, 14 and 15 February 2007 Date of Decision : 27 March 2007 ------------------------ JUDGMENT ------------------------ 1.This is a claim for damages for personal injuries suffered during work at about 11.30 a.m. on 26 March 2004. The claim is for $900,318.33. It was finally agreed that the Defendant should in any event be given credit for the sum of $100,021 paid pursuant to the Employees’ Compensation Ordinance, Cap. 282. 2.The Plaintiff was his own key witness. The Defendant called as witnesses 2 foremen or supervisors who were on duty that morning. They are Mr. Lam (“DW1”) and Mr. Cheung (“DW2”). DW2 was the more senior in rank. 3.I disbelieve the Plaintiff. I prefer the evidence of DW1 and DW2. I dismiss the present claim. I make an order nisi that the Plaintiff is to bear costs of the whole proceedings, such costs to be taxed if not agreed. There will be certificate for Counsel.
4.Plaintiff’s case – the incident
5.The Plaintiff attended work at the Defendant’s Workshop at about 8.30 a.m. At around 11.30 a.m. he received instructions from a colleague, Ah Ming, to transport angle iron bars from the entrance to inside the Workshop to weld. This covered a distance of 8 to 10 metres. 6.There was a hoist for moving the bars to where welding was to be done. The mechanical part of the hoist (“the machinery”. See Trial Bundle page B023) was attached to rails on the ceiling. Lines descended from the machinery to hold whatever needed transporting. The bars were trussed up and suspended from these lines about 1 metre above ground. The control-panel for the hoist was linked to the machinery by a cable. The control-panel would reach to about knee level of the operator. By pressing buttons on the control-panel, the hoist would move forward, backward, left or right along the rails. The hoist would stop moving if no button was pressed. Due to the length of the cable for the control-panel, anyone operating the hoist had to walk with the hoist/ its load during transport. 7.As the Plaintiff transported the bars using the hoist, he walked along passageways in the Workshop. The passageways were narrow, about 1 metre in width. The floor of the Workshop, including the passageways, was littered with metal rods or metal pieces. A cleaner used to work to clear the floor. This cleaner left the Defendant about a month earlier with no replacement. The Plaintiff had voiced in vain his concerns to Ah Ming about the littering of the Workshop and the need to employ a cleaner. 8.The Plaintiff had to keep his eyes on the machinery during the transportation process. At one point, the Plaintiff had to walk on metal sheets that raised him to about 1.5 feet from floor level. When he came to near his destination, the Plaintiff had to step down from the metal sheets. He looked at the floor before doing so and got to floor level without mishap. He continued the transporting. When the Plaintiff took his second step, he stepped on (what he discovered later to be) a metal rod about 1 inch in diameter and 1 foot long. The Plaintiff slipped backwards. His right scapula hit the corner of a moulding-machine that had been put there temporarily. His right elbow hit a metal plate that was placed against this machine. 9.The Plaintiff felt pain. He found that he could no longer lift his right arm. He used his left hand to contact through his mobile telephone the Defendant’s accountant, a Miss Lui. He told her that he would go see a doctor because he felt uncomfortable after bumping into a machine. At about this time, Michael (a colleague and a relative of the proprietor of the Defendant) emerged from a toilet nearby. The Plaintiff told him his plight in similar terms. 10.The Plaintiff left the Workshop. He took a taxi and went to the Accident and Emergency Department of Tuen Mun Hospital where he queued for medical treatment. 11.Defendant’s case
12.Matters considered
13.In no uncertain terms, the Plaintiff explained that he was about 1 foot from the moulding-machine (or even closer) when he fell backwards and hit that machine. The Plaintiff said the machine was about 1 metre in height. I note the Plaintiff to be about 5 feet 5 inches tall. Given such measurements in height and the Plaintiff’s proximity to the machine, I fail to see how the Plaintiff’s (right) scapula could have come into contact with the machine. 14.DW2’s evidence was that the hoist moved forward at a very slow speed. It was slower than a person’s normal pace. In order to operate the control-panel of the hoist, the Plaintiff was bound to proceed at about the same slow speed. Given such circumstances, I find it improbable that the Plaintiff would slip and fall backwards even if he had stepped on a metal rod. 15.The Plaintiff was in pain. He was hurt to the extent that he could no longer move his right arm. One would have thought it natural to immediately call out for help from colleagues nearby. Instead, the Plaintiff used his left hand to make a call over his mobile telephone (see also paragraph 9 above). He then left by himself, took a taxi to hospital and queued for hours waiting for medical attention. I consider such evidence ridiculous. I further consider that if Miss Lui or Michael had really been informed by the Plaintiff as he claimed, DW1 or DW2 would immediately have been told of the matter and they would have attended to the Plaintiff at once. The Plaintiff would not be left to his own designs. 16.DW1 seemed to agree that there was such a post as “cleaner” at the Defendant’s. DW1 was not able to recall whether a cleaner had left the Defendant about one month prior to the material day or if a replacement had been employed. DW2 said there was no such particular post. Workers employed as factotums would do whatever cleaning or clearing work that was required. DW2 also denied there had been any shortage in the number of workers or factotums. I consider the discrepancy here between DW1 and DW2 as more apparent than real. I consider “cleaner” or “factotum” as no more than mere labels. It is just a case of a rose by any name. I accept there was no decrease in the number of workers to clean or clear up the Workshop. 17.DW2 was a bit brusque with Counsel for the Plaintiff. I did not like this his behaviour. I regret to say that I was dilatory in telling him to conduct himself properly. I find, however, that both he and DW1 were trying their best to truthfully tell what they knew about the case. As already indicated, I accept their evidence. 18.The burden is on the Plaintiff to prove his case. I simply do not believe his evidence as to what happened to him that morning. His claim must fail. 19.Despite the above conclusion, I wish to deal further with two other matters – the medical evidence available in this case and the issue of contributory negligence. I start by looking at the medical evidence. 20.It is beyond dispute that the Plaintiff did not suffer any bone fracture. There was no muscle wasting save for mild wasting of the right deltoid (see, for example, Trial Bundle page C004). There is, however, nothing to show that this mild wasting has any significance or bearing on the present case. At one time, there was some uncertainty as to whether the Plaintiff suffered injury to the rotator cuff of the right shoulder. Magnetic Resonance Imaging (“MRI”) examination was done on 13 January 2005. The only finding of note is “Degenerative changes were noted at acromioclavicular joint. Mild inferior indentation on anterior supraspinatus tendon is suggested.” The opinion was “Mild impingement of supraspinatus tendon by acromioclavicular joint hypertrophic changes of undetermined relevance.” One is entitled to say that this is all Greek. Fortunately, both Dr. Au Ka Kau (“Dr. Au”) and Dr. Tsoi Chi Wah (“Dr. Tsoi”) explained that the MRI examination revealed nothing of relevance to the present case (see respectively Trial Bundle C034-035 and C048-49). There is nothing to show injury to the right rotator cuff.
21.Dr. Au’s first medical report dated 26 February 2005 can be found at Trial Bundle page C008. The Plaintiff’s complaints to Dr. Au were:
The Plaintiff said that his right shoulder pain was more severe than right elbow pain. 22.After examining the Plaintiff, Dr. Au found:
23.Dr. Au concluded that:
24.Dr. Au went on to assess permanent impairment of the Plaintiff. 25.After reading the MRI examination report and the 2 medical reports of Dr. Tsoi, Dr. Au wrote his second report of 18 January 2007 (Trial Bundle page C034) in which he stated that –
I understand “the additional document” to mean the MRI examination report and the 2 medical reports of Dr. Tsoi. 26.Dr. Tsoi’s first medical report can be found at Trial Bundle page C036. The problems complained of by the Plaintiff were:
27.Examination of the right shoulder showed, inter alia:
28.Examination of the right elbow showed, inter alia:
29.Dr. Tsoi found the right elbow to have recovered completely and considered that it incurred no permanent impairment. Dr. Tsoi was of the view that the Plaintiff “raised several inappropriate complaints such a (sic) headache, dizziness, chest discomfort on inspiration. These cannot be explained by the physical injuries he sustained and probably are unrelated to the accident” (see Trial Bundle page C044-C045). On the assumption that the Plaintiff had suffered some injury to the rotator cuff, Dr. Tsoi went on to assess impairment. I think Dr. Tsoi had difficulty finding a reason for the Plaintiff’s complaints of discomfort. Injury to the right rotator cuff seemed the only plausible explanation. 30.The MRI examination report was subsequently made available to Dr. Tsoi. The report showed nothing significant or relevant. Injury to rotator cuff was ruled out. In his second report of 12 September 2006 (Trial Bundle page C048-049), Dr. Tsoi wrote:
31.As indicated earlier, the Plaintiff suffered no bone fracture. There was no muscle-wasting (save for mild wasting of the right deltoid. See paragraph 20 above). There was nothing to indicate injury to tendons or nerves. One can be forgiven for asking just what was causing the Plaintiff the pain and discomfort he complained of. It is clear that Dr. Au came to his view or conclusion based on the complaints or responses of the Plaintiff during examination. I consider this a rather weak basis for concluding that the Plaintiff was injured. Just because the Plaintiff says there is pain or that he cannot move his arm in a certain way does not necessarily mean such to be a fact. This is particularly so in this case where there is no indication of anything wrong with his bones, muscles, tendons or nerves. I consider it was the absence of any such indication that ultimately led Dr. Tsoi to draw the conclusion he did i.e. the Plaintiff was exaggerating his pain and disability. I prefer and accept the evidence and conclusion of Dr. Tsoi. This is added reason for my disbelieving the Plaintiff and ordering dismissal of his claim. 32.Counsel for the Plaintiff criticised Dr. Tsoi’s second medical report by submitting that there was contradiction between paragraphs 4 and 6 of the report (see paragraph 30 above). I understood Counsel to mean that paragraph 4 mentioned there had been no “permanent structural damage” whereas paragraph 6 suggested there was permanent impairment but that it should be not more than 1%.
33.The exercise of assessing quantum of damages depends to a very large extent on the evidence of the Plaintiff and the relevant medical evidence. I have found the Plaintiff disingenuous and not worthy of belief. I have also come to a conclusion on the medical evidence adverse to the Plaintiff’s claim. I see no point proceeding to assess damages and will not do so. 34.The Plaintiff is an adult with a number of years of working experience. He has worked at the Defendant’s Workshop for some 3 months. He knew, according to his case, that the Workshop floor was littered with metal rods or other debris. I consider the Plaintiff himself negligent in walking whilst looking up at the machinery as opposed to looking carefully at the floor. If the Defendant were liable, I would have held the Plaintiff 50 % contributory negligent.
Representation: Miss Catherine K.K.Wong instructed by Messrs. K. Y. Woo & Co. for the Plaintiff Mr. Carl Yuen instructed by Messrs. Day & Chan for the Defendant |