Tam Fu Yip Fip v. Sincere Engineering & Trading Co Ltd
Read the full judgment text of HCPI 473/2006 on BabelCite. This High Court CFI judgment was delivered on 6 June 2007.
1. Tam Fu Yip Fip (“the plaintiff”) was born on 29 September 1962. At all material times, he was employed by the Sincere Engineering & Trading Company Limited (“the defendant”) as a machinery maintenance technician. His main duties were to maintain and repair heavy earth moving equipment in which the defendant company traded.
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HCPI 473/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 473 OF 2006 ------------------------- BETWEEN
------------------------- Before : Hon Saw J in Court Dates of Hearing : 14 and 15 May 2007 Date of Judgment : 6 June 2007 ------------------------ JUDGMENT ------------------------ 1.Tam Fu Yip Fip (“the plaintiff”) was born on 29 September 1962. At all material times, he was employed by the Sincere Engineering & Trading Company Limited (“the defendant”) as a machinery maintenance technician. His main duties were to maintain and repair heavy earth moving equipment in which the defendant company traded. 2.On 12 September 2002 the plaintiff was injured in the course of his employment (“the accident”). On the day of the accident, a large dredger was parked in an open-top container at the premises where the plaintiff was employed. Given the size of the dredger, it was not possible for the plaintiff to enter the cabin other than by climbing up the side of the open-top container using a ladder and from there climb into the driver’s seat. The plaintiff placed the ladder alongside the container and climbed to the top. He then slipped and fell to the ground. He fell approximately six or seven feet landing on his leg and hip. 3.After the accident he said he could not stand up immediately so he took a break and, a little later, with the assistance of one of his colleagues, he was taken to a nearby bonesetter for medical treatment. Subsequently he attended the Kei Kin Consolidated Medical Centre Yuen Long. He was X-rayed and provided with medication and recommended to attend for physiotherapy. 4.Since the date of the accident the plaintiff has not returned to his former employment. In the Revised Statement of Damages dated 14 March 2007 the plaintiff claims a total of $2,346,340 under the following heads of damages :
5.Liability is not in issue and the defendant accepts that the plaintiff was injured in the course of his employment and that there was a breach of a duty of care owed by the defendant to the plaintiff. 6.It is the defendant’s case that the plaintiff suffered a minor back sprain as he fell from the ladder and that his subsequent failure to return to his previous employment, or for that matter, any employment, has nothing to do with any injury suffered on the occasion of the accident. 7.At the time of the accident the plaintiff’s monthly income was $14,300. The plaintiff was granted sick leave as follows :
a totally of 913 days. 8.Pursuant to the Employees’ Compensation Ordinance, Cap.282, the plaintiff has received an advance payment of $262,191. It is agreed that the plaintiff must give credit for that payment in these proceedings. 9.The plaintiff first consulted an Orthopaedic Surgeon Dr Poon Kai Min in October 2002. His complaints then were that he had pain over the lumbar portion of his back and a radiating pain down his legs. He also complained of a “weakness sensation” in his lower limbs. He was, at the time, diagnosed as suffering from “back injury”. He was treated conservatively with medication and in November 2002, he started regular physiotherapy treatment. In January 2003, a magnetic resonance imaging scan (“MRI”) revealed that the plaintiff had prolapsed intervertebral discs at lumbar 4/5 and lumbar 5/S1 levels. It was Dr Poon’s opinion at that time that the severity of that prolapse did not require surgery. 10.In June 2004, the plaintiff was referred to the Department of Orthopaedics & Traumatology at the Tuen Mun Hospital Dr Chak Hing Chung, Eric reported that on presentation he complained of bilateral lower limb numbness and weakness, back pain and tenderness at the lower lumbar region and what he described as “non-specific weakness and numbness”. An X-ray of his lumbar spine revealed nothing remarkable and an MRI of the lumbar spine showed a small posterior herniation with mild encroachment on the left S1 nerve root. Additional tests performed on 31 August 2004 showed no evidence of radiculopathy which is to be expected if the encroachment of the nerve root was of significance. The diagnosis again was a prolapsed lumbar intervertebral disc. 11.The above reports were made available to Dr Au Ka Kau and Dr Chun Siu Yeung, who were instructed by the plaintiff’s and defendant’s solicitors to conduct a joint examination and prepare a joint report for the purpose of these proceedings. That examination took place on 13 March 2006. In addition to the medical reports hereinbefore referred to, they had provided to them X-ray films and MRI films. 12.In the course of their examination, Mr Tam told them that he had :
He told them that he had not returned to work after the fall in September 2002 because he needed a stick to walk and he could not stand or walk for prolonged periods. 13.At the time of the joint examination, Mr Tam complained of and I quote, the report :
14.The joint examination of Mr Tam revealed tenderness over the back, restricted movement in all directions combined with lower back pain, back pain when he rotated his shoulders, back pain when swinging his arms. 15.Given that the MRI investigation revealed some compression on the nerve roots, tests were conducted which could verify or discount that as a source of the pain complained of. These tests did not support the plaintiff’s claims. In addition, there was as Dr Au noted “no evidence of radiculopathy”. 16.Dr Au, in the course of the report, said this :
This is the plaintiff’s case at its highest and is dependent upon the assumption that there is in fact pain. I note that Dr Au does not attribute the assertion that he has back pain to the accident. 17.Both Drs Au and Chun observed that there were a number of non-organic signs in the plaintiff’s presentation. That is to say that his complaints were inconsistent one with the other and with objective criteria. There were, in fact, a series of tests performed to establish whether or not the complaints made were genuine. Dr Au for the plaintiff said this :
18.In the instant case, there were seven such positive signs. Dr Au does not commit himself beyond the above observation, notwithstanding that all of the tests performed indicated that the disc herniation revealed in the MRI scan was (a) not caused by the accident and (b) was not the source of the alleged pain. Whilst accepting that “some evaluators” (and by this I assume him to mean orthopaedic surgeons) would interpret these as “symptom magnification” which in laymen’s terms must mean “symptom exaggeration”. He is content to leave the matter in the air. He does not give an opinion. He does not say whether he thinks that the plaintiff is exaggerating or indeed fabricating the pain. 19.Dr Chun for his part was clear and unambiguous. He was of the opinion that the plaintiff was grossly exaggerating his symptoms. He said that a number of the symptoms described by the plaintiff could not be verified or reconciled. He was of the opinion that the fact that the plaintiff walked with a stick was entirely inappropriate in the circumstances and suggested an exaggeration of his disability. He gave the following examples in addition to those referred to in paragraph 16 above :
20.The joint medical report of Drs Au and Chun effectively rules out the possibility that the plaintiff’s pre-existing asymptomatic disc herniation has been in anyway aggravated or rendered symptomatic by reason of the accident. 21.Dr Chun said in short the plaintiff had a fall, which did not result in any major trauma, fracture or dislocation. In his opinion, he suffered a relatively minor soft tissue injury. 22.Dr Au for his part did not disagree with these conclusions. It is somewhat remarkable that in a joint report of this type, Dr Au stated as did Dr Chun the basis upon which “others might conclude that the plaintiff was grossly exaggerating his symptoms” but yet did not thereafter venture an opinion. 23.Neither Dr Au nor Dr Chun was called to give evidence in the proceedings before me. I am left therefore to evaluate the state of the plaintiff’s health entirely on the reports. Given Dr Au’s omission (which I must assume is intentional) not to venture an opinion as to the possibility of exaggeration, I am left only with Dr Chun’s conclusion which I accept. 24.Apart from the medical evidence I must assess the plaintiff’s own evidence as it is he who describes the nature and severity of the pain. In this regard I was greatly assisted by surveillance films taken of the plaintiff. These films were taken on two separate days. Both days being when the plaintiff was attending medical practitioners. The most notable of these was taken on 13 March 2006 when the plaintiff attended the joint medical examination conducted by Drs Au and Chun. The plaintiff is seen throughout with a walking stick in his hand, but he does not use it as an aid. At one stage, he is seen to be walking up and then down a lengthy flight of stairs at the Lok Ma Chau border checkpoint. He does not use the handrail and he certainly does not use the walking stick. 25.Wong Kai Tim (“Mr Wong”) was an employee of Take Result Limited, a private investigator engaged on behalf of the defendant to take the surveillance films of the plaintiff. It was his evidence that he overheard a young woman at the exit to the immigration area ask the plaintiff “why he was carrying the walking stick” to which he replied that he “had a medical appointment that day”. The plaintiff denied that this was the text of this conversation. It was his evidence that the women, a stranger to him, had confronted him and said “Are you going to see the doctor today?”, to which he replied “Yes.” She then said “How come you have to carry the stick?”, to which he replied words to the effect that it was because he had had a fall and he needed to use the stick for support. Mr Wong was asked if this interpretation of the conversation was possible and he replied that it was not. He was adamant that the conversation he had overheard was as described in his evidence-in-chief. I accepted his evidence and rejected the evidence of the plaintiff. It is clear beyond peradventure that the young woman concerned was waiting for the plaintiff at the immigration exit and was known to him. It was Mr Wong’s evidence that the plaintiff and this woman shared a taxi as they left the checkpoint. The clumsy explanation given by the plaintiff in his evidence-in-chief underscores the relevance of the evidence. The plaintiff was an untruthful witness in this regard. 26.I conclude that his use of the walking stick on that day was intended to exaggerate his complaints. 27.In the final analysis, on the basis of all of the material before me, I am satisfied that the plaintiff suffered, as Dr Chun describes, a minor soft tissue injury in the fall on the day of the accident. I find as a fact that his pre-existing degenerative back condition was neither caused or exacerbated by the accident and that whatever the source of his present complaints of pain (if there be pain which I doubt very much). It is not attributable to the fall. 28.I am satisfied, as both doctors advise, that the plaintiff is fully capable of returning to his former employment and has been for some time. Dr Au applies one caveat, namely that the plaintiff may consider it appropriate to wear a corset and pay attention to proper lifting procedures etc. All of which are directly referable to his pre-existing condition and not the injury suffered in the fall. As to the appropriate length of sick leave Dr Au endorses the period up to January 2005, Dr Chun would accept 90 days from the date of the accident to be reasonable. DAMAGES Pre-trial loss of earnings 29.The plaintiff has been given sick leave which totals 913 days from 13 September 2002 to 14 November 2003 and from 20 January 2004 to 15 January 2005 (i.e. 913 days or approximately 30 months). 30.The plaintiff therefore claims :
31.In addition, it is said on his behalf that he was and is from the last date of sick leave to the date of this trial, entitled to a further pre-trial award, on the basis that he was then capable of being employed as a building attendant earning approximately $7,000 per month. 32.The plaintiff therefore claims in addition :
33.In both cases the multiplier of 1.05 to account for loss of mandatory provident fund payments. 34.I have found as a fact that the plaintiff is, as Dr Chun observes, grossly exaggerating the injures suffered in September 2002. I am satisfied that he was fit and able to return to his former employment no later than January 2003. I would, were it necessary, prefer the opinion of Dr Chun as to the length of sick leave to be allowed. 35.However, I am in the final analysis unable to go behind the periods of sick leave given. No evidence was adduced to suggest or imply that those who granted to the plaintiff the sick leave did so improperly. The defendant suggests that I can, on the basis of the material before me, adjust the pre-trial loss of earnings figure to account for the plaintiff’s gross exaggeration of his symptoms. I disagree. The findings of gross exaggeration post date the grant of sick leave. The examination for the joint report was 13 March 2006. The last date of sick leave was 18 January 2005. 36.There is insufficient evidence for me to revisit the integrity of the granting of sick leave. 37.In Lee Wan Kei v. Hyundai Engineering & Construction Company Limited, HCPI 577/2004, Suffiad J said :
38.I agree with those observations. 39.However, given my conclusions the plaintiff’s claim for pre-trial loss of earnings from 18 January 2005 to date must fail. The plaintiff was at that time and most probably for a period in advance of that able to resume his former employment. Loss of earning capacity 40.Given the opinions of both Drs Au and Chun that the plaintiff can return to his former employment and my acceptance of the evidence that he has been able to do so for some time, there will be no award for loss of earning capacity. I am satisfied that the observations in Moeliker v. Reyrolk & Co. [1977] 1 WLR132 are not appropriate to this plaintiff’s case. There is to my mind “no substantial or real risk that the plaintiff would lose any future employment by reason of the injury suffered in this accident”. 41.I am satisfied that he has fully recovered from the injury he suffered. He does not return to work as a matter of choice. DAMAGES Pain suffering and loss of amenities (PSLA) 42.This is not an easy task given the degree of exaggeration manifested by the plaintiff. He suffered a soft tissue injury to the back when he fell from the container. There is no evidence to support the many, varied and conflicting complaints that he now makes. He suffers from a pre-existing degenerative back disorder but it is not possible to ascribe to that condition the complaints he now makes. 43.Dr Chun describes the injury suffered in the fall as a “relatively minor one”. He observed that there was no major trauma. Dr Au for his part does not quantify the severity of the injury. 44.In all of the circumstances an award of $75,000 is appropriate.
45.There will be judgment for the plaintiff in the sum of $286,129 together with interest to be calculated. In the event that this cannot be agreed there will be liberty to apply. 46.There will be an order nisi that the defendant pay the plaintiff’s costs on the District Court Scale. If required the plaintiff’s costs to be taxed on Legal Aid Regulations.
Mr Simon H.W. Lam, instructed by Messrs Andrew Chan & Co., for the Plaintiff Mr Patrick D. Lim, instructed by Messrs Lau, Chan & Ko, for the Defendant Appeal allowed: see CACV208/2007 dated 8 April 2008 |
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