Fong Kit Man v. Ng Tsz Keung W P Co Ltd and Another
Read the full judgment text of HCPI 539/2005 on BabelCite. This High Court CFI judgment was delivered on 3 April 2008.
1. The plaintiff claimed against both defendants herein for damages for personal injuries sustained by him at work in respect of two separate accidents which occurred on 8 July 2002 (“the 1 st Accident”) and 12 May 2003 (“the 2 nd Accident”).
Cited by 1 case · Cites 1 case
|
HCPI 539/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 539 OF 2005 --------------------- BETWEEN
---------------------- Before : Hon Suffiad J in Court Dates of Hearing : 11, 13 and 14 February 2008 Date of Judgment : 3 April 2008 -------------------------- J U D G M E M T ------------------------- 1.The plaintiff claimed against both defendants herein for damages for personal injuries sustained by him at work in respect of two separate accidents which occurred on 8 July 2002 (“the 1st Accident”) and 12 May 2003 (“the 2nd Accident”). 2.In respect of the 1st Accident, the claim was against the 1st defendant only. 3.In respect of the 2nd Accident, the claim was against both defendants. 4.The plaintiff was at the time of the 1st Accident employed by the 1st defendant, however in early 2003, at the request of the 1st defendant and with the plaintiff’s consent, the plaintiff became employed by the 2nd defendant. Therefore when the 2nd Accident occurred, the plaintiff was employed by the 2nd defendant. This came about because the 1st and 2nd defendants are related companies with a common director being Ng Yu Yan. 5.At all times, the plaintiff was employed, whether by the 1st or 2nd defendant, as a waterproof technician. 6.Before this trial started, the plaintiff had already fully settled his claim against the 1st defendant with the 1st defendant. 7.The contribution notices pertaining between both defendants had also been withdrawn. 8.Accordingly at the trial, and also in this judgment, the court was only concerned with the 2nd Accident and the liability of the 2nd defendant thereto in so far as the issue of liability went as well as quantum arising from the 2nd Accident. 9.As for the issue of quantum, since the injury suffered by the plaintiff from the 2nd Accident was an aggravation of the injury sustained by the plaintiff from the 1st Accident, it was not possible to ignore entirely what happened in the 1st Accident. However, those matters will be gone into in greater detail when I deal with the issue of quantum. PLAINTIFF’S CASE ON LIABILITY FOR THE 2ND ACCIDENT 10.Some time around 10:30 a.m. on 12 May, the plaintiff was working at a construction site at the basement of No. 1 Peking Road, Tsim Sha Tsui in Kowloon (“the Site”), having been so assigned by the 2nd defendant. 11.While the plaintiff was using an electric drill drilling the ground to a depth of some 400 mm at the Site, the electric drill suddenly came into contact with an underground reinforcement bar. Upon hitting the underground reinforcement bar, the electric drill rebounded with such force that it caused the plaintiff to fall to the ground and thereby spraining and injuring his back, a similar injury which he had previously sustained in the 1st Accident. 12.As a result of the 2nd Accident, the plaintiff felt cold and nauseated from the injury. He was sent to the Queen Elizabeth Hospital for treatment. 13.It is the plaintiff’s case that the 2nd defendant failed to provide a safe place or safe system of work; failed to provide sufficient safeguard measures when assigning workers to drill holes underground using electric drills; failed to exercise adequate supervision or give proper training; failed to warn the plaintiff of the presence of the underground iron reinforcement bar and therefore exposed the plaintiff to an obvious hazard without taking any reasonable precaution. DEFENCE OF 2nd DEFENDANT 14.There is no dispute by the 2nd defendant that at the time of the 2nd Accident, the 2nd defendant was the employer of the plaintiff who was working as a waterproof technician. 15.However, the 2nd defendant denies that the 2nd Accident occurred in the manner alleged by the plaintiff and puts the plaintiff to strict proof of same. 16.The 2nd defendant also denies any breaches of duty or of employment contract and/or any negligence by it. 17.The 2nd defendant further pleads contributory negligence of the plaintiff in that the plaintiff failed to take care of his own safety but exposed himself to risks which the plaintiff knew or ought to have known of. LIABILITY IN RESPECT OF THE 2nd ACCIDENT 18.At the start of the trial, I was informed by counsel for the 2nd defendant that the 2nd defendant does not dispute liability for the 2nd Accident to the plaintiff. 19.It was accepted by the 2nd defendant that no plans had been supplied to the plaintiff for the carrying out of his drilling work at the basement of the Site which plans would have indicated to the plaintiff the whereabouts of the underground reinforcement bars, both as to their position as well as their depth. 20.On that basis I was informed by counsel for the 2nd defendant that it did not dispute its liability in so far as the 2nd Accident was concerned, and therefore the stance it had adopted. 21.However it was also indicated to the court that the 2nd defendant, although not disputing liability for the 2nd Accident, still wished to pursue its case on contributory negligence of the plaintiff for the 2nd Accident. 22.In light of that stance taken by the 2nd defendant, this judgment therefore will focus on the determination of the issue of contributory negligence. THE ISSUES AND EVIDENCE IN RELATION TO CONTRIBUTORY NEGLIGENCE 23.From the pleadings relating to contributory negligence and from the evidence adduced, two aspects need to be considered arising from the plea of contributory negligence. 24.Firstly, it was alleged that the plaintiff was contributorily negligent in that he had chosen to return to working as a waterproofing technician after the 1st Accident which happened in an almost identical fashion as the 2nd Accident, namely that the plaintiff while using an electric drill also came into contact with an underground reinforcement bar and the rebound from that electric drill caused the injury to the plaintiff’s back in the 1st Accident which happened in July 2002. 25.Secondly, it was also alleged by the 2nd defendant that the plaintiff failed to utilize his experience in being injured in the 1st Accident to prevent a re-occurrence of the same type of accident and injury to himself when it came to the 2nd Accident and thereby was contributorily negligent in that he ought to have foreseen the risk of such an accident happening when doing drilling work. 26.The evidence relevant to the issue of contributory negligence came from the plaintiff himself and for the 2nd defendant from one factual witness being Ng Yu Yan, a director of the 2nd defendant. 27.The plaintiff’s evidence was simple and straightforward. He gave evidence that on the day of the accident, he was instructed to drill the ground at the basement of the Site. The Site itself was a structure or building in the process of being built but not yet completed and therefore not occupied. He did not know whether the 2nd defendant was a main contractor or one of the sub contractor down the line, but that his boss did not provide him with any kind of plans which would have indicated the whereabouts or the depth of the reinforcement bars which was underground therefore he had no inkling as to where the reinforcement bars were when drilling. 28.He was able to say that at the Site there were contractors and architects present who were in charge of the structure being built and if supplied with the relevant building plans showing the reinforcement bars underground, he would have been able to take better precaution when drilling. 29.In cross-examination the plaintiff admitted that when he started work for the 2nd defendant in March 2003, he still had some slight residual back pain from the 1st Accident. When asked why he went back to the same type of work after the 1st Accident when he still had back pain, the plaintiff replied that waterproofing work was what he had been doing for some 20 years, and all that time for the same boss Ng Tsz Keung. His sick leave from the 1st Accident had expired and he needed to work to earn his living for his family. Besides, since he had been loyal to Ng Tsz Keung all this time, Ng Tsz Keung was only too happy for the plaintiff to resume working for him. 30.When the plaintiff was asked by the court at the end of his evidence to clarify some points as to the non-supply of plans to him by his boss, the plaintiff said that in all of the 20 years that he had worked for Ng Tsz Keung doing waterproofing work including the occasion of the 2nd Accident, he had never asked his boss or anyone for such plans. The reason he gave for not having asked for such plans was that his boss also knew of the existence of those plans but had never supplied same to him. He therefore continued doing the drilling work without the benefit of such plans. 31.Ng Yu Yan, a director of the 2nd defendant gave evidence for the 2nd defendant. 32.He is a director of both the 1st and 2nd defendant and is the son of Ng Tsz Keung who was instrumental in starting the waterproofing business in respect of both companies. 33.He had no first hand knowledge as to the 1st or 2nd Accident to the plaintiff but only learnt of those two accidents from what he was told either by his father or by other workers. He was not at the Site when the 2nd Accident occurred and has never been to the Site. 34.As for building plans, all he could say was that the foreman on the Site would have all the necessary building plans but that the plaintiff had never asked him (Ng Yu Yan) for those plans. However he had never seen any plans which would show the position of reinforcement steel bars. FINDINGS ON THE EVIDENCE 35.I have no difficulty accepting the evidence given by the plaintiff. The straightforward way in which he was able to give the answer that in his twenty years of work he had never asked his boss for plans showing the position of reinforcement bars which is a matter central to this litigation and the answer given by the plaintiff, which is quite apparently against his interest in the matter, has a ring of truth to it. 36.Moreover, the plaintiff made no attempt to hide that fact but gave his answer in a straightforward manner, even though he had the same experience when he suffered the 1st Accident which was also caused by his hitting a reinforcement bar underground when the plaintiff was drilling. 37.On the other hand, the evidence given by Ng Yu Yan left much to be desired and which greatly affected its reliability. 38.For one thing, as admitted by him, he did not even have first hand knowledge of the plaintiff’s accidents and injuries in both the 1st and 2nd Accidents but had to rely on what was told to him by others. 39.Secondly, he had never been to the Site himself. 40.Thirdly, when he was asked about the plans showing the reinforcement bars in relation to the plaintiff’s 2nd Accident, he gave the answer that he had not seen any plans showing the location of the reinforcement bars but that the plans only showed the location of the walls. It would appear from that answer of his that he was not even aware that the reinforcement bar which the plaintiff hit with his electric drill was one which was underground and not inside a wall. 41.Fourthly, he did not go as far as to say that there are no plans which show the location of reinforcement bars underground. His evidence only go as far as to say that he has not seen any such plans. 42.That coupled with his admission that he has never been to the Site cannot amount to any evidence that such plans do not exist. 43.Indeed there are other circumstances of the case and other evidence which would be inconsistent with that position. 44.When counsel for the 2nd defendant conceded liability of the 2nd defendant in this matter, that concession was made on the basis that the 2nd defendant failed to provide the plaintiff with plans showing the location or position of the underground reinforcement bars. 45.Implicit in that concession therefore must be the fact that such plans existed. 46.I cannot visualize that such a significant concession, going to the very root of the issue of liability in the litigation, be made by counsel without proper instructions from the party which he represented. 47.Moreover, there was evidence that the Site was a building in the course of construction, but as yet not completed at the time of the 2nd Accident. As such there will need to be building plans which had been approved by the Building Authorities. For such approval to be forthcoming from the Building Authorities, it will need to be satisfied that the structure was sufficiently strong. In that respect, plans submitted for approval will need to show the type of reinforcements used, usually in very great detail such as the diameter of the reinforcement bars as well as how far they are spaced apart. All this can only be done with building plans providing such details for approval from the Building Authorities. 48.In the circumstances, I am not prepared to accept the evidence of Ng Yu Yan to mean that there were no such plans in existence which would show the position or location of the reinforcement bars underground, if that be the purport of his evidence. 49.I can only deduce from his evidence that the 2nd defendant did not have such plans or did not ask for them either from the main contractor or from the architects involved with the construction of the building at the Site, therefore the failure of the 2nd defendant to provide the plaintiff with same. That would be very different and would not be inconsistent with the 2nd defendant’s concession or admission on liability. DECISION ON CONTRIBUTORY NEGLIGENCE 50.On the first point taken by the 2nd defendant, namely that the plaintiff had returned to working as a waterproofing technician with the 2nd defendant after his 1st Accident, I do not find that to be any contributory negligence on the part of the plaintiff. 51.This basis for contributory negligence must involve the question of causation for the 2nd Accident. 52.The main cause of the 2nd Accident I find to be the failure to warn the plaintiff of the underground reinforcement bars and/or their position under the ground. 53.The fact that the plaintiff returned to working as a waterproofing technician after the 1st Accident cannot be a cause of the 2nd Accident. That can be seen simply by the realization that the 2nd Accident could have happened to any drilling worker without the proper warning, not just to the plaintiff who had a similar previous accident. 54.Nor can the plaintiff be blamed for returning to the same kind of work after his 1st Accident since at the time he returned to work in March 2003, his sick leave for the 1st Accident had already expired, albeit he still had some slight residual back pain. 55.Indeed if the plaintiff had not returned to working as a waterproofing technician in March 2003, or had taken on some other work with lesser wages, he would have been criticized for failing to mitigate his damages. 56.I find no substance of merit in the first point. 57.As for the second point relied on by the 2nd defendant, namely that the plaintiff failed to take proper precaution himself for his own safety especially after experiencing the 1st Accident (which happened in much the similar way as the 2nd Accident), the evidence from the plaintiff that in his twenty years working with the same boss as a waterproofing technician, he had never asked for plans showing underground reinforcement bars plays a significant role in the issue of contributory negligence. 58.The starting point must be that in this case, it is the plaintiff’s complaint that his employer, the 2nd defendant, failed to supply him with the relevant plans showing the location of the underground reinforcement bars when he was asked to perform drilling works in the basement of the Site. 59.In the light of his earlier injury from the 1st Accident which happened in much the same way, and assuming that there was negligence on the part of the 2nd defendant in the way complained of by the plaintiff, the question that must be asked must be what steps if any had been taken by the plaintiff to lessen the risk of injury to himself. 60.Quite obviously, the plaintiff could not be expected to approach the main contractor or architect to secure a copy of such plans himself. That would really be a matter in the province of the 2nd defendant either through its foreman or some other responsible officer. 61.What could reasonably be expected of the plaintiff was for him to ask the foreman of the 2nd defendant for such plans. 62.If that had been done by the plaintiff, but turned down by the 2nd defendant, then the 2nd defendant cannot be heard to complain of contributory negligence on the part of the plaintiff. 63.However, the plaintiff’s own evidence showed that such request was never made by the plaintiff, not even after the 1st Accident. 64.That is a telling piece of evidence as it showed the plaintiff, at the time of the 2nd Accident, was content to carry on such drilling works when he was not supplied with the relevant plans. In that sense the plaintiff either failed to take reasonable care of himself or else it never even occurred to him to ask for such plans, despite his present complaints now of not being supplied with such plans by his employer. 65.It was submitted by counsel for the plaintiff that even if he had asked for such plans, the 2nd defendant would not have supplied it. However, there is no evidential basis to make that submission. In the absence of any evidence, it is not possible for me to draw the inference that the 2nd defendant would not have supplied such plans even if asked for by the plaintiff, especially when the plaintiff had admitted that he had never asked for such plans. 66.Given the evidence in this case, I find that there was contributory negligence on the part of the plaintiff in failing to request for such plans from the 2nd defendant or its foreman. He had failed to take reasonable care of his own safety in failing to ask for such plans from his employer. 67.As for the amount of contributory negligence which such failure on the part of the plaintiff comes to, I am in agreement with counsel for the plaintiff that it cannot be great given all the circumstances of this case. The blameworthiness of the plaintiff will have to be gauged against the breach of duty on the part of the 2nd defendant in failing to provide such plans. 68.Given the 2nd defendant also knew that the plaintiff had previously been injured in the 1st Accident when he hit a reinforcement bar while drilling the ground, the initial and greater onus must be on the employer to take reasonable measures to guard against a similar occurrence of the 1st Accident, despite which, the 2nd defendant still failed to take the necessary precautions by providing or obtaining the plans to show the location and position of underground reinforcement bars at the Site. 69.Given all the circumstances prevailing in this case, I find the plaintiff to be 10% to blame for his failure in taking reasonable care of his own safety. QUANTUM Plaintiff’s history of back injury 70.Prior to the 2nd Accident in May 2003, the plaintiff has had work accidents in 1996, January 2000 and the 1st Accident in July 2002, all of which resulted in some degree of back injury to the plaintiff. 71.After the January 2000 accident, the injury to his back resulted in a prolapsed intervertebral disc at L5/S1 with limited spine flexion and extension and residual weakness and numbness of the left S1 nerve. 72.The injury to the plaintiff from the 1st Accident in July 2002 aggravated the already existing prolapsed intervertebral disc at L5/S1 and resulted in left groin pain. After the 1st Accident, the plaintiff had severe low back pain which at times radiated into his left leg and associated with numbness. He was hospitalized at the Tuen Mun Hospital for some 10 days due to the persistent and severe back pain. After being treated there with physiotherapy and medication, the sciatica improved leaving him only with some residual back pain. Injuries and treatment after the 2nd Accident 73.Immediately after the 2nd Accident the plaintiff felt nausea and severe low back pain followed by left lower limb numbness. He could not move his back and was taken by ambulance to the Accident and Emergency Department of Queen Elizabeth Hospital. There he was observed and treated conservatively but was not admitted since it was during the SARS outbreak. The X-ray taken was unremarkable. The plaintiff was then referred to Tuen Mun Hospital for follow up. 74.The plaintiff attended the orthopaedic clinic of Tuen Mun Hospital on 27 May 2003. At the time his back was found to be stiff and tender and his left leg weak and sensation impaired. Ankle jerks were absent. Analgesics and physiotherapy was given. 75.The plaintiff was later admitted to Tuen Mun Hospital and selective nerve back injection was done on 3 September 2003. His condition did not improve. 76.Electromyography and nerve conduction study was carried out on 24 October 2003 in Tuen Mun Hospital which confirmed chronic left L5 and S1 radiculopathy. 77.Later the plaintiff was seen by the spine clinic of Prince of Wales Hospital on 3 and 17 November 2003. 78.In January 2004 the plaintiff complained of erectile dysfunction and was referred to urology for assessment and follow up. 79.Magnetic Resonance Imaging (“MRI”) carried out in July 2004 showed that the plaintiff’s L5/S1 disc herniation increased in size slightly when compared with the MRI done in July 2003. 80.The plaintiff was admitted to Tuen Mun Hospital again between 9 September and 12 November 2004 for pain management and physiotherapy. An operation of posterior diskectomy of L5/S1 was performed on 2 November 2004. Post operatively the plaintiff showed mild improvement. 81.After the 2nd Accident, the plaintiff had also suffered from depressed mood, poor temper control and insomnia. Since early 2004, the plaintiff has been receiving psychological treatment (both as outpatient as well as inpatient) and medication from the Castle Peak Hospital in relation to his psychiatric problems and was diagnosed by doctors of Castle Peak Hospital to be suffering from Major Depressive Disorder. Orthopaedic assessment by experts 82.The plaintiff was examined by his orthopaedic expert, Dr Yong Kong Fan on 16 February 2006. Dr Yong gave his opinion on the plaintiff’s orthopaedic condition in his medical report dated 13 May 2006. 83.As a result of the 2nd Accident, Dr Yong diagnosed the plaintiff to be suffering acute exacerbation of left lower limb radiculopathy resulting from a prolapsed intervertebral disc. 84.Dr Yong recognized the fact that the plaintiff had had three previous injuries to his back before the 2nd Accident, and in the first two of those previous injuries (i.e. in 1996 and 2000) he had complained of back pain but without any leg symptoms. After returning to the same work when his third injury happened in July 2002 (i.e. the 1st Accident), the plaintiff suffered from back pain and left sciatica. His sciatica improved with treatment and he was left mainly with some residual back pain when he returned to work in early 2003 before the 2nd Accident. 85.The diagnosis was consistent with the mechanism of the injury from the 2nd Accident which caused the axial load on his low back causing further compression of an already prolapsed intervertebral disc onto the nerve root. 86.According to Dr Yong, the injury from the 2nd Accident resulted in an increased severity of the sciatica compared to the plaintiff’s condition prior to being injured in the 2nd Accident. 87.Dr Yong further recognized that the plaintiff still had some residual back pain but no leg symptoms immediately prior to the time the 2nd Accident occurred. 88.The acuteness of the left sciatica after the 2nd Accident is reflected from the severity of pain suffered and was confirmed by the MRI which showed both increased compression of the nerve root and thickening of nerve root compatible with edema. This led to the operative intervention in November 2004 of fenestration and diskectomy. 89.Despite subjective improvement after the operation, the plaintiff still suffered quite a lot of the neuralgia which limited his mobility and also affected his wellbeing. 90.Dr Yong summarized the situation to be that after the 1st Accident in 2002, the plaintiff had significant radiculopathy clinically and imaging study showed a herniated disc but which was no longer symptomatic after treatment given apart from some residual back pain. However, the findings, symptoms and imaging after the 2nd Accident showed a symptomatic herniated disc. Surgery for the radiculopathy gave some improvement but significant neuralgia still remained which limited his activities of daily living. 91.The condition of the plaintiff is now likely to be static and that he had received the maximum medical improvement. No further treatment could benefit the plaintiff in his current orthopaedic condition. 92.Dr Yong opined that in the current condition he was in, the plaintiff was unlikely to be able to return to his pre-injury job since he is mainly wheelchair bound although he can walk a few steps with a quadripod. He was unlikely also to be able to engage in any gainful employment from the orthopaedic point of view. 93.Dr Yong was of the view that the sick leave given to the plaintiff from May 2003 to August 2005, which was about nine months after his spinal surgery done in Tuen Mun Hospital was reasonable for his current back injury. 94.Lastly, Dr Yong apportioned the injury and damage to the plaintiff to be 40% due to the 1st Accident and 60% due to the 2nd Accident. 95.The plaintiff was also examined by the orthopaedic expert of the 2nd defendant, Dr Brian Chan Kowk Piu on 16 September 2005 and whose comments and opinion are contained in his medical report dated 26 September 2005. 96.On the basis that the plaintiff had three previous injuries to his back in 1996, 2000 and 2002 resulting in a prolapsed intervertebral disc before the 2nd Accident, Dr Chan diagnosed that the plaintiff suffered a simple back sprain from the 2nd Accident which had aggravated an already existing L5/S1 disc problem. 97.Like Dr Yong, Dr Chan took the view that no further orthopaedic treatment will be of any benefit to the plaintiff. 98.However, in so far as his prognosis of the plaintiff’s condition was concerned, Dr Chan was of the view that because the plaintiff’s back problem had been complicated by his depression and psychological problem, his condition depended very much on his psychological state which was the main factor determining the plaintiff’s pain threshold. 99.Dr Chan also stated in his report that physically, the plaintiff should have adjusted his daily activities to his back injury as his disc problem was pre-existing to the present injury. The issues which affected the plaintiff’s daily activities now would be how he can control his mood and temper. 100.Dr Chan opined that the plaintiff cannot return to his pre-accident work, not because of his physical problem but because of his current psychological state. 101.As for sick leave, Dr Chan took the view that for a simple back sprain, two to three months continuous physiotherapy treatment should normally be sufficient. 102.Dr Chan assessed the plaintiff’s permanent incapacity to be 1% of the whole person. Urological assessment by experts 103.The plaintiff was examined by Dr Ho Kwok Kam, a specialist in urology instructed by the plaintiff, on 18 February 2006 and from his findings compiled a medical report dated 30 March 2006. 104.After examining the plaintiff, Dr Ho came to the conclusion that the complaint by the plaintiff of erectile dysfunction was genuine which was of acute onset right after the 2nd Accident. 105.Dr Ho opined that the cause of the erectile dysfunction was likely multi-factorial in the case of the plaintiff, with the main cause being the pain experienced by the plaintiff at his back which resulted from the 2nd Accident. There was a strong neurogenic element of his erectile dysfunction with symptoms and signs of left L5/S1 radiculopathy still prevailing after the diskectomy. Prolapsed intervertebral disc at this level was a well-known cause of erectile dysfunction. 106.The plaintiff’s major depressive disorder and the sedatives and antidepressant for it may also have contributed to the erectile dysfunction. 107.Dr Ho ruled out smoking as a cause since there is no evidence of coronary heart disease or peripheral vascular disease to suggest that smoking was the cause of the problem. 108.Moreover the plaintiff did not have systemic disease to account for his erectile dysfunction. 109.In conclusion Dr Ho stated that whichever of the aforesaid factors were the main cause of the erectile dysfunction, it was sparked off by the back injury brought about by the 2nd Accident. 110.Dr Ho further stated that if the pain experienced by the plaintiff could be controlled, then his erectile dysfunction would go away. 111.The treatment recommended by Dr Ho was for the continuation of Viagra or Viagra type drugs. Consultation with urologist once every three months costing $12,000 per year which is to go on for some 20 years in view of the plaintiff’s age. 112.An alternative treatment would be by Vacuum Constriction Device if Viagra does not work satisfactorily. This was considered an effective and safe treatment although the erection is unnatural. The estimated cost of using this device with three to six monthly supervision by an urologist is $6,000 per year again lasting for about 20 years. 113.If all else failed, the last resort would be Penile Prosthesis involving a major operation with implant of prosthesis and would be estimated to cost $150,000. This treatment however would not be recommended by Dr Ho if the plaintiff’s painful condition could not be resolved. 114.However, in the final analysis, Dr Ho stated that the prognosis of the plaintiff’s erectile dysfunction was poor as his pain was so bad and so difficult to treat that he would not consider treating his erectile dysfunction if there was no improvement of his painful condition since sexual intercourse would increase his pain and make him more miserable. 115.Dr George Koo, an expert in urology instructed by the 2nd defendant, examined the plaintiff on 12 July 2006 and gave a medical report dated 1 August 2006. 116.By and large, there was very little difference between Dr Koo and Dr Ho in so far as the fact that the plaintiff suffers from erectile dysfunction and its underlying causes. 117.It was Dr Koo’s opinion that there were three underlying causes for the dysfunction. They were a neurogenic factor, a psychogenic factor and the plaintiff’s back pain which prevented him from movement during intercourse. 118.The main difference between Dr Ho and Dr Koo related to the suggested treatment to deal with the erectile dysfunction. 119.Dr Koo took the view that the erectile dysfunction of the plaintiff can be remedied by medication of Viagra which has been shown to be effective and convenient. Dr Koo further stated that there was probably no need for invasive treatment for the erectile dysfunction such as intracavernous injection or the operation of penile prosthesis. As for the vacuum device, although non-invasive, Dr Koo did not recommend it as in his experience it was not liked by patients because it ended up with a “cold erection”. 120.Therefore Dr Koo recommended the plaintiff to be provided for the Viagra treatment for two years and then be reviewed by the urologist. He estimated the cost of such treatment to be around $360 per month. 121.Lastly, Dr Koo also agreed that if the back pain and depression can be improved medically or by other means, the plaintiff’s present sexual complaint may also improve significantly. 122.He assessed the plaintiff’s permanent impairment for his sexual dysfunction to be 3% of the whole person. Psychiatric assessment by experts 123.In this respect, the plaintiff had instructed Dr Peter Ho Pang Nin, an expert in psychiatry. The defendant had instructed Dr Law Wun Tong, also an expert in psychiarty. 124.Both Dr Ho and Dr Law had jointly examined the plaintiff on 29 March 2006 at Dr Law’s clinic and had come out with separate reports each after that examination. 125.A further joint report was prepared by both Dr Ho and Dr Law dated 9 January 2008 in which they were asked to specifically state their agreements and disagreements. 126.In Dr Ho’s report, it was stated that the plaintiff presented with many symptoms including depressive mood, disturbance in the functions of sleep and sex, reduced interest, anxiety, negative cognitions with lowered self-esteem, confidence, feelings of worthlessness and guilt, fleeting suicidal ideas, impaired concentration and memory, and irritability. It was also stated that these symptoms had reduced to some extent after treatment. 127.The symptoms of the plaintiff as stated by Dr Ho in his report are not disputed at all by Dr Law. 128.The major difference between them would appear firstly, to be one of diagnostic labeling or classification. 129.Dr Ho was of the opinion that the symptoms of the plaintiff indicated that the plaintiff suffered from major depressive disorder which is now in partial remission and that the plaintiff also suffered from pain disorder. 130.On the other hand, Dr Law took the view that the plaintiff suffered from an adjustment disorder with depressed mood the severity of which was of moderate intensity. Dr Law further disagreed that there was another psychiatric disorder of pain disorder, but rather that the pain suffered by the plaintiff cannot be explained organically and that his pain was mainly psychogenic and was not caused by psychiatric disorder. 131.The reason given by Dr Law for diagnosing an adjustment disorder with depressed mood was because of the reactive nature of the plaintiff’s problem. 132.There is no difference between both of them that the main cause of the pain and associated physical symptoms were related to the orthopaedic lesions although there was an emotional overlay and psychological element that could aggravate the pain perception. 133.Dr Ho was of the view that the psychological element was partly related to the depression, but agreed with Dr Law that the psychiatric condition was reactive to the physical disabilities and psychosocial stressors. 134.The second area where they disagreed on related to the recommendation for future treatment. 135.In this respect, Dr Ho recommended more intensive psychotherapy in the private setting if there was no further improvement after one year, then two sessions per month for at least two years. 136.On the other hand, Dr Law recommended continuity of treatment in the public service for the more comprehensive treatment monthly for another year. 137.Finally, they also differed as to the amount of impairment. Dr Ho estimated 12% impairment to the whole person while Dr Law assessed the impairment to the whole person to be only 7%. Findings on the medical evidence 138.In respect of the orthopaedic assessment made by the two orthopaedic experts, I have no hesitation in accepting the assessment made by Dr Yong and rejecting in its entirety that of Dr Brian Chan. 139.It is quite clear that Dr Chan has made his assessment on the basis that the plaintiff has suffered a back sprain in the 2nd Accident which has aggravated a pre-existing condition or injury sustained by him in the 1st Accident. In this respect, Dr Chan’s assessment of 1% impairment as well as his opinion that two to three months sick leave would have been sufficient were all given on the basis that the plaintiff had suffered only a back sprain in the 2nd Accident, without taking into account what Dr Chan considered to be the aggravation of the pre-existing condition. 140.Assessment given by an expert on such a basis is wholly unhelpful to a court since, in making an assessment on such a basis, the expert has already pre-empted the court in its finding on the disputed medical evidence. Such findings by the court would include the apportionment that the court considers proper in each case as to what proportion of the injury should be attributed to the pre-existing condition and what part came about because of the injury from the accident itself. 141.An expert ought to have assessed the plaintiff on the total condition that the plaintiff was in (as was done by Dr Yong) and then to state what portion of such injury was due to the pre-existing condition and what portion was caused by the accident, as was done by Dr Yong. 142.Given the above, I would also have no hesitation in accepting Dr Yong’s opinion relating to the plaintiff’s inability to return to his pre-accident work given the condition that he is in. 143.There can be no doubt that the plaintiff, in the present condition he is in, is wheelchair bound and can only take a few steps with the assistance of a quadripod. Given that condition of his, the opinion expressed by Dr Chan that it is only due to his psychiatric condition that the plaintiff cannot return to his pre-accident work underlines the worthlessness of that assessment. 144.As for the urological assessment, there is very little which separates Dr Ho and Dr Koo in their assessment of the plaintiff’s urological condition and the cause of it. 145.The main difference between them relates to the future treatment to be given to the plaintiff which I shall deal with when I come to deal with that head of damage. 146.In so far as the plaintiff’s urological condition and assessment goes, that has already been stated above, and there is no need for me to make any specific findings in relation to the experts evidence in that respect. 147.Likewise, the plaintiff’s psychiatric condition, the same can be said of it as was said of his urological condition. 148.Therefore I do not propose to make any specific findings on the expert evidence as regards the plaintiff’s psychiatric condition, save that I will deal with the future psychiatric treatment suggested by the experts when I deal with that head of future medical expenses. PAIN SUFFERING AND LOSS OF AMENITIES 149.Under this head of damage, the plaintiff claimed $650,000 while the defendant submitted that not more than $120,000 should be awarded. 150.Having seen the plaintiff in court and the fact that he is effectively now wheelchair bound (noting at the same time that it was government doctors and physiotherapists who suggested the plaintiff to use a wheelchair), and giving effect to the medical evidence as stated above, I am of the view that $650,000 would have been an appropriate amount for the entire condition that the plaintiff is now in. 151.However, I have also to take into condition the opinion of Dr Yong Kong Fan that 40% of his orthopaedic condition ought to be attributed to his pre-existing condition come about as a result of the 1st Accident. 152.Also bearing in mind that the pre-existing condition of the plaintiff only involved his orthopaedic condition, but that his urological and psychiatric conditions were not pre-existing before the 2nd Accident, I assess the amount of damages for pain suffering and loss of amenities to be $450,000. SPECIAL DAMAGES 153.Under this head of damage, the plaintiff claimed a total amount of $126,633. This amount was itemized and broken down from items (a) to (p) in the Revised Statement of Damages. 154.Except for item (g) which is for an amount of $94,636 which is stated to be for “cost of rehousing with bathroom modification (and all incidental rehousing expenses) arranged by occupational therapist and rehab team of Tuen Mun Hospital (with receipt proof)”, I have no difficulty with the rest of items (a) to (p) claimed. The rest of the items (other than item (g)) amounted to $31,997. 155.In so far as item (g) was concerned, in relation to the amount claimed of $94,636, there is one receipt dated 2 June 2004 from Kin Cheung Decoration Engineering Comapany which evidenced the receipt of $53,000 and an outstanding balance of $15,000 for the renovation and decoration works to Room 2018 Shui Moon House, Tin Shui Estate in Tin Shui Wai. No other evidence (documentary or otherwise) showed that balance of $15,000 to have been paid or settled by the plaintiff. 156.Twenty-two other receipts (which are in Chinese) contained in the trial bundle, which in the Index to the trial bundle state that they are for “cost of rehousing” have neither been translated nor have they been explained in evidence. When it was pointed out to counsel for the plaintiff that there were no translations for those other documents, counsel for the plaintiff seemingly did not further pursue that matter. 157.In the circumstances, and by reason of the fact that there is evidence before me to indicate that the plaintiff was indeed advised by the therapists and doctors in the rehabilitation team in Tuen Mun Hospital to move to alternative accommodations which could facilitate his using the wheelchair at home, I am only prepared to allow the amount of $53,000 under item (g). 158.Accordingly, the total amount of special damages claimed is assessed at $84,997.00. PRE-TRIAL LOSS OF EARNINGS 159.The pre-trial period was 58 months. 160.There is no dispute that the plaintiff’s pre-accident earnings was $10,918 per month. 161.I take note that market conditions affecting wages in the construction industry generally improved somewhat only in 2007 during the pre-trial period. Accepting that to be the case, I shall adopt a medium of $11,000 for calculating loss of pre-trial earnings. 162.From the medical evidence it is quite clear that the plaintiff, in the condition that he was in after the accident, could not have taken up any form of work during that entire period. 163.Therefore the pre-trial loss of earnings comes to $11,000 x 58 = $638,000. Adding on a further 5% to that figure for loss of MPF comes to $669,900 which is the amount of the pre-trial loss of earnings including MPF. 164.I make no discount under this head for the fact that the injury from the 2nd Accident was an aggravation of that sustained in the 1st Accident because it is quite clear from the medical evidence that after his sick leave had expired in relation to the 1st Accident, the plaintiff was in a position and in fact did return to his pre-accident work as a waterproofing technician. Moreover, there is no evidence that had the 2nd Accident not occurred, during the pre-trial period, the plaintiff would have been so affected by his injuries suffered from the 1st Accident that he would not have been able to continue his work as a waterproofing technician. FUTURE LOSS OF EARNINGS 165.Under this head of damage claimed, the usual approach to be adopted in cases involving a pre-existing condition was laid down in Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523 where a court will need to take into consideration the medical evidence as to how much longer a plaintiff will be able to continue his pre-accident work, before his pre-existing condition will have prevented him from continuing with same had it not been for the accident in question and accordingly to adjust the multiplier in a given case. 166.However, in the present case, although the plaintiff did have a pre-existing condition in relation to his lower back pain which came about as a result of his earlier injuries including the 1st Accident, there is no evidence from the experts before me to the effect that the plaintiff’s pre-existing condition would have prevented him from carrying on with his pre-accident work as a waterproofing technician had it not been for the 2nd Accident. 167.Moreover, the evidence before me was that after his sick leave granted for the 1st Accident expired some time in February 2003, the plaintiff was able to return to his pre-accident work by around March 2003 except that he still had some slight residual pain at his back. 168.The only inference open to me to draw in those circumstances must be that the plaintiff would not have been prevented from continuing with his pre-accident work in the normal way if the 2nd Accident had not occurred. 169.As the medical evidence now stands, I find that the plaintiff will not be suitable for any form of work hereafter. 170.Given the plaintiff is now 52 years old and the nature of his pre-accident work, I will adopt a multiplier of six. For the reasons given above, I do not propose to reduce the multiplier because of the pre-existing condition of the plaintiff. 171.I shall adopt the same multiplicand as used for calculating pre-trial loss of earnings, i.e. $11,000. 172.The loss of future earnings comes to $11,000 x 12 x 6 giving $792,000. Adding on a further 5% to this figure to take account of the loss of MPF gives $831,600. LOSS OF EARNINGS CAPACITY 173.There is a claim for loss of earnings capacity, however, counsel for the plaintiff very properly conceded during submission that the plaintiff will not be entitled to any award under this head if full loss of future earnings was awarded. 174.Accordingly, no amount is assessed under this head of damage. COST OF FUTURE TREATMENT 175.For cost of future treatment, the plaintiff claimed an amount of $288,000 which is broken down as follows: 176.$48,000 being future costs of psychiatric treatment as recommended by Dr Peter Ho Pang Nin; $240,000 being future costs of urological treatment as recommended by Dr Ho Kwok Kam. 177.As for future psychiatric treatment, Dr Peter Ho Pang Nin recommended the plaintiff to undergo at least two more years of psychiatric treatment in the private sector at a frequency of two sessions per month each lasting half to one hour. The estimate costs of such being $2,000 per month. 178.It was on such basis the plaintiff claimed $48,000 for future psychiatric treatment. 179.As for the future urological treatment, Dr Ho Kwok Kam’s recommendation to the plaintiff was for consultation with the urologist once every three months at the cost of about $12,000 per year and that such future treatment should go on for the next 20 years. This formed the basis of the plaintiff’s claim for future urological treatment. 180.On the other hand, the defendant’s expert in psychiatry, Dr Law Wun Tong recommended by way of future treatment for the plaintiff, who had received proper psychiatric treatment from the Tuen Mun Mental Health Centre and which had been providing a comprehensive treatment, was for the plaintiff to continue such treatment in the public sector. The main reason for that recommendation was that the multi-disciplinary team was able to take care of the pharmacotherapy, psychotherapy and also the social needs of the plaintiff and his family. Such treatment, being multi-disciplinary will not be available in the private sector. 181.Dr Law recommended that the plaintiff continue such treatment at monthly interval for another year since the plaintiff had shown improvement in his mood but his mental state will continue to be influenced by the physical symptoms. 182.The cost of such treatment in the public sector was estimated to be $1,200 for the 12 treatment sessions recommended, but about $24,000 in the private sector. 183.In respect of the future urological treatment, Dr George Koo, the defendant’s expert recommended that the plaintiff’s erectile dysfunction be remedied by providing him with Viagra medication costing about $360 per month on the assumption that he needed the medication once a week. Dr Koo further recommended such future treatment to be for two years and then reviewed by the urologist. 184.Looking at the difference between the recommendations of the various experts, I have no hesitation in accepting the recommendation of Dr Law over that of Dr Peter Ho. The very convincing reason given by Dr Law as to why the plaintiff should continue his psychiatric treatment in the public sector, namely because they provide a multi-disciplinary and comprehensive treatment to the plaintiff and his family and which is not available in the public sector, is unanswerable and indeed has not been answered at all by the plaintiff or his expert. 185.However, in view of the fact that Dr Law has acknowledged that even with a further 12 months of treatment in the public sector, the plaintiff’s mental state will continue to be influenced by the physical symptoms, I am prepared to extend the period of such future treatment to two years and not simply the 12 months recommended by Dr Law. 186.Accordingly, I will assess the future cost of psychiatric treatment to be $2,400. In view of the fact that this sum is not a great amount, I do not propose to make any deduction therefrom for accelerated receipt. 187.As for future urological treatment, there is every indication in this case that the plaintiff’s erectile dysfunction is linked to his pain disorder. 188.The recommendation by both experts in this field was for the plaintiff to continue with Viagra medication. As for the other alternative treatment put forward, they can be dismissed for the reasons already given. 189.Therefore the only difference seemingly between the Viagra treatment suggested by Dr Ho and that suggested by Dr Koo is that Dr Ho estimated the cost to be $12,000 per year for 20 years while Dr Koo stated the cost to be $360 per month (which comes to $4,320 per year) and that Dr Koo suggested treatment for two years and thereafter to be reviewed by the urologist. 190.I have no hesitation in rejecting the suggestion of Dr Ho both as to the yearly cost and the fact that such treatment should at this point in time be fixed for 20 years. 191.On the other hand, I find the suggestion of Dr Koo to be both attractive and, more importantly, reasonable. 192.However, in so far as he suggested that the treatment be reviewed in two years time itself indicates that he is not altogether certain that such treatment will not go beyond that two year period, but that it is not something which can be determined as yet. 193.For the purpose of assessing future urological treatment, the best I can do is to use a multiplier of 4 and thereby come up with the assessment of $4,320 x 4 to be the amount to award for future urological treatment giving $17,280. 194.Accordingly, the total assessment for future medical treatment comes to $19,680. INTEREST 195.Interest will be awarded for PSLA at 2% p.a. from the date of the Writ and for Special Damages and Pre-trial loss of earnings at half judgment rate from the date of the 2nd Accident. SUMMARY OF DAMAGES ASSESSED
DEDUCTIONS 196.From the above sub-total amount, effect will have to be given to the findings on contributory negligence of the plaintiff by reducing it by 10%. That gives a figure of $2,029,145.40. 197.From this figure will also have to be deducted the amount of $367,516 being the ECC payment already received by the plaintiff. 198.This gives a final sum of $1,661,629.40. CONCLUSION 199.Accordingly, there will be judgment to the plaintiff in the sum of $1,661,629.40. COST 200.There will be the usual costs order nisi that the 2nd defendant pays the plaintiff his cost of this action, to be taxed if not agreed.
Mr Louis Mui, instructed by Messrs Lam, Lee & Lai, for the Plaintiff Mr Carl Yuen, instructed by Messrs Day & Chan, for the 2nd Defendant |
Cases cited in this judgment
Other judgments that cite this case