Chan Kan Fat v. Dickson Construction Co Ltd
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA EMPLOYEES’ COMPENSATION CASE NO. 80 OF 1984 _______________ IN THE MATTER OF AN APPLICATION BETWEEN :
_______________ Coram: H.H. Judge Scriven in Court. _______________ JUDGMENT _______________ 1. I hope the brevity of the judgment I am about to write will be not taken by either of the advocates appearing before me as any reflection upon the care patience and skill they devoted to presenting a relatively complex picture before me. I have found the problem involved here worrying and complicated, but, after reconsidering the notes I took of the medical and other evidence at the trial. I feel able to present my judgment in a relatively short wordspan. 2. CHAN KAN FAT “the Applicant”, as I shall call him, came to Hong Kong from China about 7 years ago, in 1979, or thereabouts; he then worked as a construction site worker, as a "mason" and as a delivery man - that is to say delivering formwork to construction sites. On the 17th June 1982 he was working for the first day at the Respondents Shatin Jubilee Sports Centre, building site, and at about 3.00 p.m. in the same afternoon he fell, whilst carrying bricks on the site, from a height of about 8 metres; he was knocked unconscious and taken to Queen Elizabeth Hospital. According to the records provided by that Hospital he was admitted in fair condition, not in shock, and was found to have a fracture of the right acetabulum in his pelvic area. He was able to give an account of his fall. He was treated, including for post-concussional headache. 3. On the 5th August 1982 he was transferred to Kowloon Hospital for convalescence, and discharged therefrom on the 15th October 1982, for follow up treatment, as an out-patient, back at the Queen Elizabeth Hospital orthopaedic out-patients unit. 4. A year after the accident - in June 1983 - X-rays showed that he had good union of the fracture. 5. When referred to the medical assessment board on 26th August 1983 he complained of low back ache. He eventually, on 22nd February 1984 consented to a myelogram being performed and this showed no abnormality; whilst he was away from work, and. for 2 years, he was paid a figure calculated by the Respondents to represent 2/3 of his wages. I put that in rather neutral terms, because the matter of his proper wages for the purposes of the Employees' Compensation Ordinance is very much in dispute. At all events, after this accident on the very first day of his employment, with a sub-contractor of the Respondent, on 17th June 1982, the Applicant has never resumed work to this day. His claim is, in short, that as a result of the accident and the injuries he sustained in that accident he developed a neurosis which has prevented him not only from not resuming his work on a construction site but, hitherto, from working at all. 6. As I have said the injuries were in the main confined to the hip - the fractured acetabulum. The analysis of any possible injuries to the head seems to be that there was no direct head injury, but possible loss of consciousness for a few hours immediately following the accident; there is thus no instantly obvious causal connection between the injury and the symptoms which are the subject of the present claim, which largely boils down to vomiting under stress particularly under the stress of medical examination, together with dizziness headaches and nausea. The background to the claim 7. I do not think it is an overstatement to say that the information directly obtained from this Applicant as to his background or the events between 17th June 1982 and the 13th June 1984 when this application was launched, is minimal. He declined to testify before me, and on the occasion of his examinations by the plethora of surgeons and psychologists involved since launching the claim, he has always been accompanied by one of two brothers, CHOW YUET MING or CHOW PAK SHING, who acted as his spokesman. The former testified before me, and I shall call him Mr. CHOW, but these two brothers have known the Applicant since childhood; at all material times and at various places, the Applicant (except when an impatient at KWAI CHUNG Hospital) resided with Mr. CHOW. Mr. CHOW is himself a construction site sub-contractor, and although he has never worked with the Applicant he has obviously been a good friend ever since the accident to the Applicant and I suspect his friendship was stretched to the limit by having to attend court to testify. He had rushed to the hospital after the accident, spoken to the doctors and, he said, arranged for a pain-killing injection to be given to the Applicant; he painted a picture of a semi-comatose man in great pain at the time, a picture of greater immediate distress then the hospital reports suggested. He described the Applicants subsequent habits of public defecation, public urination, moodiness, outbursts of temper, as all being subsequent to the accident but it was clear from Mr. CHOW’s testimony that the Applicant could socialize, travel to China and travel in Hong Kong by himself, especially from Kowloon to Hong Kong to collect his bi-monthly payments from the Respondents. Mr. CHOW surprisingly knew little of the Applicants marital position, although he has a wife and children in China, nor did he know much about the Applicant's trips to China. I did not find his testimony particularly helpful and I have to remember that all the specialists who examined the Applicant had to rely on this type of evidence from one or other of the brothers CHOW to try and get at the background. After proceedings were started the Applicant was seen at YAU MA TEI psychiatric unit on 12th July 1934, for treatment and in the opinion of those who saw him he was suffering from
The remainder of the medical evidence is so strongly weighted against dementia that the Applicant through his solicitor conceded that there is no allegation of dementia now. I think that is significant because when the Applicant had been assessed for his Intelligence Quotient by Mr. Sung of the Selective Placement Unit operated by the Labour Department in April 1985, his performance then was that of a lower grade mental defective; he performed certain tests of mental and manual co-ordination and dexterity at a slower speed than any other candidate - 1 hour and 48 minutes against the next slowest of 39 minutes. I shall be turning to the expert psychiatric medical evidence later, but I have to say that with the paucity of information as to the Applicant's background and the undisputed evidence that there was no injury to the brain it would not be surprising if any present impairment he may suffer from was existent long before the accident. 8. When this application was launched the Applicant was seen by a surgeon Dr. Edmund CHEUNG. He was not able to reach any conclusion regarding the true disability or the cause of the Applicant's present misery, but said
9. He gave that as the probable reason for the conclusion, to which I have referred, reached at YAU MAT TEI of dementia etc. Mr. CHEUNG recommended observation in case behaviourial symptoms were being imitated by the Applicant, and later on after considering the YAU MAT TEI report, again Dr. CHEUNG said
But Dr. CHEUNG went on to repeat his warning that behaviour disorders may be imitated and close observation by the psychiatric clinic may be necessary to determine the true state of his disability. 10. And that is where the parties have since diverged: the Respondent says the Applicant is a malinger. The Respondent instructed Dr. Bernard LAU who saw the Applicant on the 6th and 13th February, 1985 and came to the conclusion that there had been no head injury, no intellectual deterioration, or dementia. That there was a masquerade of disability and exaggeration of symptoms of distress indicating the possibility of malingering. 11. The Applicant was then referred by his solicitor to Dr. K. Singer, who saw the Applicant on the 5th October 1986. Dr. Singer had the benefit of Dr. Lau’s report and looked specifically for evidence of malingering; his conclusion was that the Applicant has suffering from a true neurosis as a result of the accident and was not malingering. 12. And so the medical evidence would appear, on the pre-trial reports of these two eminent psychiatrists, to be a head-on conflict between their opinions. I have to say however that I did not ultimately detect such an irreconcilable clash; I found quite a lot of common ground, or "grey area" perhaps, but in the background was the opinion of a relatively young and less-experienced doctor at the Kwai Chung Hospital, Dr. Wat; he was the only one who had the chance to survey the Applicant over a period. The Applicant, largely as a result of Dr. Lau's recommendation, was accepted at Kwai Chung as a voluntary patient from April 1985 to October 1985. Whereas Dr. Wat and the staff had the Applicant under observation for that period, both Dr. Singer and Dr. Lau had largely to rely on what the CHOW brothers told them about the Applicant's symptoms. The Law 13. Whilst a considerable number of cases have been cited to me I think for the purposes of this judgment that I really need go no further then to say I accept the principle laid down nearly 80 years ago in the Court of Appeal in England in Eaves v. Blaenclydach Colliery Co Ltd (1909) 2 KB p.73 that nervous and mental illness, as well as physical injuries have to be taken into account for the purposes of the Ordinance; in that case, applying the English Workmen's Compensation Act of 1906, Cozen-Hardy. MR at page 75.
Whilst Workmen's Compensation law has passed into history in England, a modern form is in force in New Zealand and I have gained great help from MacDonald's Workmen's Compensation (14th Edition) at paragraphs 443 et. seq., where the old English authorities are reviewed. Amongst the New Zealand Authorities cited by MacDonald (at para. 444) are Nicholas v. Wimstone Ltd (1913) 12 NZWCC and Wright v. AG (1955) NZLR, from which it is clear that neurosis not traumatic in origin is not sufficient to lead to compensation and that there must be no suspicion of malingering, that of course must mean a reasonably based medical adviser's suspicion. 14. I have to make it clear that, if I find that there is a neurosis shown to result from the undoubted accident on the 17th June 1982 and which extended beyond the period of two years after that date, then I should regard that as notionally "permanent", even if I accepted a prognosis that, with financial settlement or termination of the litigation, the symptoms and the neurosis would come to an end within a measurable time. The Burden of Proof 15. This of course rests with the Applicant, and if the possibility of malingering, which Dr. Singer described as:
is raised on the evidence, as it was here, then the Applicant's evidence must be on balance of probabilities rebut it, to the extent that it is alleged either to be partial or total, but overriding this is always S 5(1) of Cap. 282 which predicates the right to compensation to the situation only;
16. The Applicant has therefore to show that his present condition is due to injury by accident. There is no doubt that he suffered his hip injury by accident but there L' also no doubt' that he had recovered from that hip injury at the latest by the time when he had received the last of the 2 year payments for temporary incapacity. There is no permenent disability in that respect. 17. The Applicant then has to show total or partial incapacity from 18th June 1984 and this is now alleged solely to be due to his mental state. Has the Applicant proved this, on balance? The Expert Medical Evidence 18. I have referred to Dr. Wat. He had signed an opinion of the 6th October 1985 after consulting his Senior Medical Officers at Kwai Chung and obtaining their agreement as to his conclusions. He testified before me, to the effect of this opinion, that:-
In evidence to me, Dr. Wat said:
In evidence in chief Dr. Wat said “I do not think he is malingering not even a little bit.” Under cross examination he maintained that the Applicant has an accident neurosis, but running through the evidence was the fact that the Applicant's behaviour was markedly different, when observed, from when not being observed. When not being observed he could play chess and table tennis, and enjoy them, both pursuits requiring concentration and agility of course, and otherwise socialize. Yet lack of concentration was one of the symptoms, the Applicant complained of. Dr. Wat detected hostility when he suggested that the Applicant was pretending to be ill and when he tried to discuss this very claim. Dr. Wat expected recovery within 2 years from the date of the hearing. I regard the strength of Dr. Wat's evidence as showing the difference in behaviour when observed from when unobserved, and, with respect to Dr. Wat, and his conclusion I have to observe that he was the most junior doctor at Kwai Chung and had only started his first psychiatric appointment there in 1985. He had been a paediatric intern at Queen Elizabeth Hospital immediately before that, with only general student training in psychological medicine. He admitted that he was not experienced in diagnosing compensation neurosis before this case. I therefore rely upon Dr. Wat's observation as to the Applicant's behaviour for the reliability and general picture thereof, rather than the observations given by the brothers Chow to the other examining doctors or 'co me. 19. Dr. Wat's opinion was available to Dr. Singer and to Dr. Lau when he gave his second opinion. 20. Dr. Singer contended for a positively diagnosed neurosis, but Dr. Lau says he could find no symptoms to create such and by way of elimination reached his conclusion, on a negative basis, that there was no formal mental illness. Dr. Singer has been in practice for 30 years and Dr. Lau for 13 years and Dr. Lau readily acknowledged Dr. Singer's great experience. Both had recourse to Diazepam, a tranquillizing drug to get the Applicant to relax and tell them something about his history. Dr. Singer said an examination-in-chief
He went on to describe how the "bizarreness" of any behavioural "pattern could be either evidence of malingering or hysteric and how consistency of symptoms suggests malingering. 21. Whilst therefore Dr. Singer contended for a neurosis whether hysterical or compensation based either of which would be beyond the Applicant's reasonable control and amount to a mental illness and contended that this is the direct result of the accident, I do not consider, without disrespect to Dr. Singer that this is an opinion reached without difficulty or, more important, an opinion approaching certainty; of course no opinion can amount to certainty but when I balance his evidence with that of Dr. Lau who reached his conclusion that malingering is the only possibility of any positive diagnosis, in the sense that there is no evidence of formal illness to be found by a process of elimination, so malingering in my judgment must be a possible diagnosis. Dr. Lau had seen a lot of malingering in the last five years, but this has the only case where he had to reach his opinion as a negative conclusion. He preferred to say that the Applicant had no psychiatric illness rather than that he was malingering. But the possibility of malingering is the common ground to which I referred earlier. Dr. Singer does not exclude it. 22. So Dr. Singer said "on the whole" the Applicant was not malingering, and Dr. Lau said there was no evidence of any formal illness and that he preferred to say such, rather than diagnose actual malingering. 23. When I take into account all the background features here; the different behavourial patterns of the Applicant when observed as distinct from when unobserved, the absence of any satisfactory background evidence, his personal history so far as it could be gathered, and the Applicant's refusal to testify or to cooperate with doctors, whereas otherwise he 8an relate to other people satisfactorily, and taking into account the video film I saw, and the agents reports obtained for the Respondent, I am bound to say that at the end of the day I prefer the opinion expressed by Dr. Lau that his conclusion is that there is shown to be no formal illness. I accept that opinion and there can be no compensation therefore for permanent disability, on the score of mental illness. The Applicant has not discharged his burden of proof on balance of probabilities. Conclusion 24. There is in my judgment no permanent disability whether total or partial resulting from the injury of 17th June 1982 and the Respondents have paid the entire sum which they are liable to pay under the provisions of S.10 of Cap. 282. I am not required to make a finding therefore of the amount of the monthly earnings to be attributed to a case such as this where the injuried man was only employed, under a sub-contract, for 1 day. Had I been required to do so I should have held the Respondents to be fixed with their own Notice of Opposition, so that the notional earnings would have been for a 26 day month at $140 per day. 25. In all these circumstances there will be judgment for the Respondents with costs to be taxed on the District Court upper scale if not agreed and with a certificate of fitness for Counsel. And an order if needed for the taxation of the Applicant's own costs pursuant to the Legal Aid Regulations, with Liberty to Apply for any further or consequential order as to costs. Date this 3 day of February 1987
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