LI YIK WING v SECRETARY FOR JUSTICEacting for and on behalf of THE DIRECTOR OF MARINE

HCPI 565/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 565 OF 2006

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Before : Hon Suffiad J in Court

Dates of Hearing : 27 to 30 May 2008

Date of Judgment : 5 August 2008

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J U D G M E N T

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1. The plaintiff was employed by the Marine Department as an artisan to work at the government dockyard at Stonecutters Island, Ngong Shung Road, New Territories, Hong Kong.

2. The plaintiff claims damages for personal injuries suffered by him on 24 July 2003 when, in the course of his employment, he slipped, fell and was trapped between the platform of a marine synchrolift and the concrete kerb of the dockyard.

BACKGROUND

3. On 23 July 2003, tropical cyclone “Imbudo” was approaching Hong Kong and signal No. 3 was hoisted at 1:40 p.m. that day.  At 10:40 p.m. that night, signal No. 3 was replaced by signal No. 8 and that signal No. 8 continued (albeit with different wind directions) throughout the night until it was replaced the next morning at 8:15 a.m. by signal No. 3.  All signals were lowered at 12:40 p.m. on 24 July 2003.

4. At the government dockyard in Stonecutter’s Island, there is a synchrolift which has a platform that can be submerged into the sea water by a lift system.  When the platform is submerged into the sea water, a vessel can then be manoeuvered over the submerged platform which can then be raised with the vessel on it.  The purpose of the synchrolift is for lifting boats and ships out of the water for maintenance work or for repair.  When the platform is in the raised position, there exist a gap between the edge of the platform and the concrete kerb of the dockyard (“the gap”).

5. One of the precautions normally taken at the government dockyard when storm or strong winds threaten the territory is to secure the synchrolift platform when it is above the sea level since strong winds would sway the platform causing it to hit against the concrete kerb.  In order to secure the platform from being swayed by the wind, protective wood chocks are inserted into the gap.

THE ACCIDENT

6. The plaintiff came on duty at the government dockyard in the early hours of 24 July 2003.  After signal No. 8 had been lowered on 24 July 2003, at about 2 p.m. that same day, the plaintiff was instructed by Ng Kwok Lam (“Ng”) to remove and collect the wood chocks which had been inserted into the gap during the typhoon.  Each of the wood chock weighed between about 17 kg which is equivalent to about 37 lbs.

7. It is the plaintiff’s evidence that normally, his job was only to drive the forklift taking the wooden chocks to and from storage.  It was no part of his job to handle the wooden chocks.  He would only drive the forklift to each point of the platform where a wooden chock had been inserted into the gap and another worker would remove the chock from the gap and place it on the forklift whereupon the plaintiff would drive the forklift to the next point.

8. However, on 24 July 2003, when he was instructed to collect the wooden chocks by his superior, the plaintiff was told to do both tasks of driving the forklift as well as manually collecting the wooden chocks from the gap.  According to the plaintiff, he had requested for another artisan to assist in the work but that request was denied by Ng due to insufficient manpower.  The plaintiff then carried out that work by himself as instructed.

9. After he had completed removing and collecting the chocks from the gap on the left side of the platform (looking seawards), the plaintiff then proceeded to remove and collect the chocks in the gap on the right side of the platform.  The accident occurred when he was removing the wooden chock on the right side furthest from the sea.  At that time there were still about seven or eight wooden chocks that had not been collected from the gap on the right side of the platform.

10. In removing this wooden chock immediately before the accident, the plaintiff had his left foot on the platform and the right foot on the concrete kerb, taking hold of the iron ring on top of the chock with both hands.  After retrieving the chock from the gap, the plaintiff was about to place the chock on the pallet of the forklift which had been parked on the platform.  At that moment, his left foot, which was on the platform, slipped due to some oil stain being on the platform.  As he slipped, he fell and hit against the pallet of the forklift, thereby tilting the pallet and causing the other chocks already on the pallet to fall towards him.  One of the chocks on the pallet hit his chest causing him to lose balance.  As a result both his legs fell into the gap.  He did not fall into the sea but both his legs up to his hips was stuck in this gap and he could not move.  As he fell, he felt his coccyx hit against the dockside.  The plaintiff says his head also hit against one of the machine that controlled the synchrolift platform and which was by the side of the concrete kerb.

11. It is the plaintiff’s evidence that his superior Ng was at the vicinity when this accident happened and when Ng saw what happened to the plaintiff, he came over and pulled the plaintiff out of the gap.

12. After he had been pulled out from the gap into which the lower half of his body fell, he felt pain in his head, neck, chest, waist, back and genitals and felt very dizzy at the same time.  Somebody called for a taxi and the plaintiff was taken to the Accident and Emergency Unit (“A&E Unit”) of Princess Margaret Hospital (“PMH”) in the taxi.

13. The plaintiff himself was the only witness called for the plaintiff.

14. Insofar as liability goes, the defendant dispute the occurrence of the accident in the way alleged to by the plaintiff to have happened.

15. The defendant called three witnesses.  However, the evidence of only two of them related to the issue of liability.

16. Firstly, Mak Chi Kin (“Mak”), a ship inspector of the Marine Department gave evidence.

17. The relevant parts of his evidence was to the effect that the plaintiff was on duty on 24 July 2003, and in that afternoon was detailed to remove the protective wood chocks from the gap of the synchrolift.

18. However, the plaintiff did not report any accident to his employer on the day the accident was alleged to have happened, and it was only on the following day that a colleague of the plaintiff informed him (Mak) that the plaintiff had seen a doctor after work on 24 July due to a work injury and sick leave had been granted to the plaintiff.

19. He further stated that in an accident report signed by the plaintiff it was alleged that the plaintiff had slipped on the ground and hit against a wood chock but there was no mention about falling into the gap as now alleged.

20. Mak also gave evidence that at 15 random measurements, taken on 11 May 2007, of the width of the gap between the synchrolift platform and the concrete kerb ranged from 90 to 159 mm with the average being 133 mm (i.e. between 3.5 inches and 6.25 inches with the average being about 5.25 inches) and that there was no gap with a width of 10 inches as alleged by the plaintiff in his Reply.

21. It was also Mak’s evidence that the Marine Department had not received any complaint of oil leakage at the scene of the accident prior to the Reply herein.

22. Mak also gave evidence that the weight of a wood chock with the handle is about 17 kg.

23. Lastly, Mak gave evidence that a warning message “MIND THE PLATFORM GAP” was painted in yellow on the ground at the accident scene to notify people of the gap in the synchrolift platform.  In cross-examination, however, he agreed that that warning sign only came about after the date of the alleged accident to the plaintiff.

24. The other witness called on liability by the defendant was Ng Kwok Lam.

25. In his witness statement which he adopted as his evidence-in-chief, Ng stated in paragraph 1 thereof that he was the immediate supervisor of the plaintiff.

26. Ng went on to say that he was on duty on 24 July 2003 at the government dockyard, and after all typhoon signals had been lowered, the weather was fine with sunlight, no rain and the ground was dry.

27. At 1:20 p.m. he was on patrol duty and came to the synchrolift platform where he saw the plaintiff dismantling the protective wood chocks from the synchrolift platform.  They exchanged a few joking remarks and he told the plaintiff he would come back later, then left.

28. Some 10 minutes later he returned to where the plaintiff was continuing with the dismantling work and was told by the plaintiff that the plaintiff had made a false step at the platform gap after Ng had left him earlier and as a result the plaintiff felt some pain at his leg.  Ng then asked the plaintiff if he needed to take a rest or call an ambulance, the plaintiff smiled and said : “no need, it did not matter”.  It was then that the plaintiff said it would be good to have one more colleague to help him complete the work faster.  Ng then said perhaps later as others were still busy.

29. Ng then conveyed the plaintiff’s request to the Launch Crew Supervisor, Mr Tong, who told him to continue his work.

30. Ng gave evidence that he did not see how the plaintiff injured himself and the allegation by the plaintiff that he had helped the plaintiff out of the gap into which the plaintiff had fallen was totally untrue.

31. Ng further said that the gap at the platform was only about 5 inches wide and not possible for an adult person to fall into it.

32. In his witness statement, Ng further stated that the plaintiff did not give any notice to him about having to leave early or to see a doctor on 24 July.  He added that there were four senior artisans and one artisan (being the plaintiff) who were under his supervision and all of them except the plaintiff left the government dockyard only at 5:00 p.m. that day after work.  There was no record as to when the plaintiff left work that day, and it was only on the following day that Ng came to know of the plaintiff having left early but without prior notice to him.  The plaintiff ought to have obtained approval from him if he had left early that day, but no such request was made by the plaintiff.

33. In cross-examination, Ng agreed that two important changes had come about after the date of the accident to the plaintiff.  The first change was that forklift trucks were no longer allowed to be driven on the platform of the synchrolift and secondly, there has been painted in yellow, a warning about the platform gap worded “MIND THE PLATFORM GAP”.

FINDINGS OF FACT

34. What is disputed by the defendant is not that there was no accident to the plaintiff at the time the accident was alleged, but only that the accident did not happen the way it was alleged by the plaintiff, in particular the plaintiff falling into the gap and/or getting stuck in that gap.

35. Firstly, it was disputed by the defendant that the gap at the synchrolift platform could be of such dimension that an adult could fall into it.

36. The evidence relied on by the defendant in this respect is the random measurement taken on 11 May 2007 by Mak Chi Kin which showed the gap to be between 3.5 inches and 6.25 inches wide, averaging about 5.25 inches.  It was said that there was no change in the environment between the accident date and when the random measurements were taken.

37. However, one important matter had been overlooked by the defendant which makes that evidence unsatisfactory.  It was the plaintiff’s evidence that when the accident happened, there were still some seven or eight chocks which had not yet been retrieved by him on the right side of the synchrolift platform. 

38. There is no evidence before me that when the random measurements were taken on 11 May 2007 that any wooden chocks had been inserted into the gap.

39. There is therefore no evidence before me as to what would be the width of the gap in question had there been chocks inserted into that side of the gap from which the measurement was taken.  For all I know, had there been chocks inserted into the gap, it may be wider than the 6.25 inches recorded as being the widest on 11 May 2007.  This is particularly so since the evidence of the plaintiff was to the effect that all the chocks had been retrieved by him on the left side of the synchrolift platform, so that there were only chocks left on that side of the platform gap where the accident happened to him, and none on the opposite side.  This would mean that the platform was free to sway towards the left side but because of the seven or eight chocks still inserted on the right side, the platform would be prevented by those chocks from closing the gap on the side where the plaintiff said he fell into the gap.  The defendant had never disputed the plaintiff’s evidence that there were still some seven or eight wooden chocks inserted into the gap when the accident happened.

40. This is also relevant to one submission by counsel for the defendant who submitted that if the plaintiff had indeed fallen into the gap as he claimed, chances are he would have been crushed by the swaying platform. 

41. Once again that submission did not take account of the seven to eight remaining chocks still inserted into the gap on the left side at the time the accident occurred as they would have prevented the gap from closing on the left side and thereby prevented the plaintiff from being crushed as suggested by counsel.

42. A further piece of evidence relevant to this consideration is the admission made by both Mak and Ng in cross-examination when they admitted that it was only after the date of the accident to the plaintiff (24 July 2003) that the warning notice “MIND THE PLATFORM GAP” was put up.  In cross-examination, Ng further agreed that such warning notice was put up because of the danger of slipping into the gap.

43. That admission by Ng would suggest that it was possible for a person to slip into the gap ordinarily, let alone when wooden chocks had been inserted.

44. Secondly, it was disputed by Ng that he had witnessed the accident to the plaintiff and that he had not seen the plaintiff having fallen into or stuck in the platform gap, let alone pulled him out from it.  Ng’s evidence was to the effect that the plaintiff only told him the plaintiff had made a false step when dismantling the chocks.

45. However, Ng agreed to having made a statement in Chinese dated 18 July 2007, which Ng said was made at the request of his superior.  That Chinese statement made by Ng was produced in evidence by the plaintiff.  In that statement, Ng stated that he was told by the plaintiff (when he came across the plaintiff at the synchrolift platform dismantling the chocks) that the plaintiff had “made a false step into the middle between the platform and the dockside”.

46. Although Ng said in his evidence that the contents of that statement is also true and accurate, explaining that nowhere is it stated in that statement that the plaintiff fell into the gap, it seems clear enough that was what he was told by the plaintiff, and I have some reservation as to the reliability of Ng as a witness in respect of the occurrence of this accident.

47. More importantly, the factor which leads me to conclude that Ng is not a credible witness is that in his oral testimony in court, he attempted to give evidence which directly contradicted what was stated in his witness statement.

48. In his witness statement, Ng stated both in the opening paragraph and also towards the end of that statement that he was the immediate supervisor of the plaintiff (as well as four other senior artisans).

49. In his oral evidence in court he tried to detract from that saying that the plaintiff, on the day of the accident, was in fact under the supervision of somebody else, not himself.  Furthermore, this evidence was not elicited from him but was volunteered by Ng himself.

50. The way this evidence from Ng unfurled is not only extraordinary especially when it directly contradicted what was stated in no uncertain terms in his witness statement in two separate parts of that statement where Ng stated that he was the immediate supervisor of the plaintiff.  Also, his oral evidence which sought to contradict what was stated in his witness statement only came at the very end of his evidence, almost as an afterthought, long after he had adopted his witness statement as his evidence-in-chief.  Ng had every opportunity to reflect on the matter since his evidence was interposed by that of Dr Singer, the medical expert of the plaintiff.

51. Not only did this seriously affect the reliability of Ng as a witness, but furthermore, I can only conclude that this evidence volunteered by Ng was given by him for a specific purpose.  The only possible motive for Ng to have come out with such evidence was that Ng realised that as the immediate supervisor of the plaintiff, and with knowledge of the accident to the plaintiff, he ought to have made a report of it on 24 July, but did not.

52. In the circumstances, I am not disposed to believing anything said by Ng which is contrary to what was said by the plaintiff in his evidence relating to the occurrence of this accident.  Where they differ on the facts, I am disposed to believing what was stated by the plaintiff as to how the accident happened, including the fact that the plaintiff did slip and fall into the gap and was pulled out from it by Ng, save with one exception, namely the injury to the plaintiff’s head which I will deal with in more detail when I come to deal with the issue of quantum.

LIABILITY FOR THE ACCIDENT

53. A number of matters were relied on by the plaintiff in alleging responsibility of the defendant for this accident.

54. Firstly, it was said that because his request for assistance was denied, that was a cause of the accident.

55. I do not accept that suggestion for the simple reason that if there had been another worker, they would have been doing different things at different time.  One collecting the chocks and the plaintiff driving the forklift. 

56. The way the accident happened was not due to insufficient manpower doing the same thing at the same time.

57. Even if there had been two persons doing what the plaintiff was doing alone, such an accident could still have happened to one of them.  Therefore the fact that the plaintiff was doing the work alone was not a cause of this accident.

58. On the facts as found, the accident was caused by firstly, there being oil slick on the platform which caused the plaintiff to slip initially.  Secondly, it was also caused by the fact that the forklift was allowed at that time to be on the platform itself, a matter now rectified by the Marine Department in that forklifts are no longer allowed to be driven on the platform.  This was a cause of the accident because if the forklift was not on the platform, the plaintiff, after slipping, would not have fallen on the pallet of the forklift causing the chock on the pallet to hit against his chest.

59. Thirdly, the accident was also caused by the failure to warn against the gap between the platform and the concrete kerb.  Again the evidence shows that this failure has now been rectified after the accident to the plaintiff.

60. These three causes of the accident arose out of the failure of the defendant both as the employer of the plaintiff as well as in their capacity as the occupier of the dockyard.

61. In all these respects, the defendant was in breach of its duty of care to the plaintiff either for failure to implement a safe system of work (by allowing the forklift to be on the platform) or in breach of their common duty of care by failure to prevent oil slick from being on the platform and failing to sufficiently warn against the danger of the gap.

62. In the circumstances, the defendant is liable to the plaintiff for negligence.

CONTRIBUTORY NEGLIGENCE

63. On the facts found, there is nothing to indicate in the least that the plaintiff was at fault.

64. He was doing his job as instructed and was neither doing anything against instructions or taking any short cut for his own convenience.

65. There is no basis for me to conclude that the plaintiff was himself to blame in any way for the accident.

66. I therefore do not find any contributory negligence on the part of the plaintiff.

QUANTUM

Injuries and treatment

67. Immediately after the accident, the plaintiff attended the A&E Dept of PMH.  Examination at the A&E Dept of PMH found tenderness at bilateral lower chest wall and that the plaintiff had sustained multiple injuries to his head, chest, back and buttock.  X-ray of chest and ribs showed no fracture.  ECG was normal.  He was treated and discharged with four days of sick leave given.

68. On 27 July 2003, the plaintiff attended the A&E Dept of Tuen Mun Hospital (“TMH”) because of pain over chest wall and buttock.  Medical examination revealed tenderness and bruising over bilateral chest wall and buttock.  He was treated and discharged with three days of sick leave given.  X-ray of chest and buttock showed no fracture.

69. On 7 August 2003 the plaintiff again attended the A&E Dept of TMH because of low back pain and abdominal pain.  Once again medical examination revealed tenderness and bruises over bilateral chest wall and buttock.  He was admitted to the surgical ward of TMH and discharged on 11 August with follow-up appointment at the surgical specialist outpatient department.  X-rays taken showed no fracture.  Ultrasound examination did not show any abnormality.

70. Thereafter the plaintiff attended medical consultations and follow-up treatments in TMH variously at the A&E Dept, Department of Surgery, Department of Orthopaedic and Traumatology, Department of Family Medicine, Department of Urology, Department of Psychiatry, Department of Physiotherapy, Deapartment of Occupational Therapy and Deapartment of Medicine and Geriatric (Neurology).

71. Follow-up chest X-ray taken at TMH in November 2003 showed no fracture of the ribs.

72. The plaintiff attended A&E Dept. of TMH in November 2003 complaining of urine frequency and urge incontinence and also lower urinary tract symptoms including hesitancy and intermittent stream.  He was then referred to the Urology Clinic in April 2004.  Clinical examination revealed a mildly enlarged prostate.  Renal function test and prostate specific antigen were normal.  Mid stream urine culture showed no growth.  Ultrasound kidney showed no hydronephrosis.

73. Urodynamic studies were performed twice by TMH on 3 December 2004 and also on 15 September 2005 but no abnormality was found.

74. The plaintiff also attended medical consultations and follow-up treatments at Pok Oi Hospital’s 24-hour Ambulatory Clinic, Family Medicine Clinic and Department of Physiotherapy, and also at the Castle Peak Hospital.

75. The plaintiff started psychiatric consultation around 30 December 2003 and is still required to attend medical appointments with various public hospitals.

EXPERT’S OPINION

Orthopaedic

76. The plaintiff was examined by his own orthopaedic expert, Dr Ko Wing Man on 1 and 6 September 2006.  Dr Ko gave a medical report dated 24 October 2006.  Dr Ko was not called to give oral evidence, but his medical report was adduced into evidence at trial.

77. Dr Ko expressed his opinion that the plaintiff had suffered a significant direct contusion to his anterior chest wall with possible microfracture of the lateral right 6^th rib and significant residue pain from the accident.

78. It was also Dr Ko’s opinion that the plaintiff also suffered a significant direct injury his lumbar spine with possible injury to his L3 upper endplate from the accident which also resulted in significant residue pain.

79. Dr Ko further stated that the degeneration seen on X-ray of the lumbar spine was more likely changes which were asymptomatic and that the narrowing of L2/3 disc seen on plain X-ray is possibly a result of  pre-existing degeneration aggravated by the injury due to the accident.

80. Since it had been more than three years after the accident, Dr Ko considered both conditions of the plaintiff’s anterior chest and lumbar spine to be static with little prospect of significant improvement.

81. Dr Ko assessed the chest injury to be 3% impairment and the lumbar spine injury to be 5% impairment.  Totally they add up to an assessment of 8% impairment of the whole person.

82. Dr Ko further took the view that it was not feasible for the plaintiff to return to his original work or any jobs which involved heavy manual labouring, but that work of a lighter nature may be considered.

83. Dr Ko opined that 2½ years of sick leave was reasonable for the plaintiff.

84. The plaintiff was also examined by the defendant’s orthopaedic expert, Dr Yeung Sai Hung on 4 May 2007 and who compiled a medical report dated 7 May 2007.  Again Dr Yeung was not called to give oral evidence but that his medical report was adduced into evidence at trial.

85. Dr Yeung opined that the contusion to the chest wall and sprain injuries to the lumbar and cervical spine were consistent with the subject accident.  However, Dr Yeung was of the view that the contusion to the chest wall should have healed with no impairment to the person, that the sprain injury to the lumbar spine should be a 1% impairment and that the sprain to the cervical spine should account for 0.5% impairment.

86. He agreed that the spondylotic changes at the lumbar and cervical spine were pre-existing but were asymptomatic and that the plaintiff did not need to seek treatment for them before the accident.

87. Dr Yeung stated that the very severe symptoms alleged by the plaintiff but with few objectively verifiable findings and the plaintiff’s firm belief that he could not take up any gainful employment showed the case to be complicated by definite psychological abnormality which would have affected the sick leave granted.  He was of the view that the physical orthopaedic problems should have required sick leave for about one year only.

88. The main difference between the orthopaedic experts is that Dr Yeung noted a number of features of symptom exaggeration as listed out by him in paragraph 11.3 of his medical report.  These can be summarized as follows :

(a)  whether the plaintiff did fall from a height of 15 feet as recorded by some doctors as being told to them by the plaintiff;

(b) whether the plaintiff did lose consciousness (and the time of lost consciousness) as recorded by some doctors as having been told them by the plaintiff;

(c) the degree of pain experienced by the plaintiff;

(d) the plaintiff’s sitting tolerance;

(e)  the plaintiff’s antalgic gait in walking and whether he was using the correct hand in holding his walking stick;

(f)  the absence of muscle spasm although the plaintiff complained of tenderness upon palpation of the cervical and lumbar spine;

(g) his complaint of abdominal pain but the lack of any pathology upon palpation;

(h) his complaint of hip pain upon movement compared with the absence of abnormality of his hip joint;

(i)  the difference in result of the straight leg raising test when in the lying position when compared with same done when the plaintiff was distracted and in the sitting position;

(j)  the complaint of pain during femoral stretching test which should not have resulted in pain as it was testing the upper lumbar spine;

(k) the plaintiff’s subjective claim of severe pain in both knees when no abnormality was detected;

(l)  complaint of pain in lower back when light compression applied to his head; and

(m)    complaint of pain in low back region on turning of pelvis which involved no movement of the spine.

89. Dr Yeung opined that an individual with a similar degree of contusion of the chest and sprain injury of the cervical and lumbar spine without complication by other problem should be able to return to his pre-injury work.

90. Dr Yeung also opined that the plaintiff’s other multiple problems with the knee, urology, eye, ear, nose and hypertension were not caused by the accident.

Neurology

91. A medical report prepared by Dr Brian Choa, the plaintiff’s expert in neurology, was adduced into evidence without calling Dr Choa since the defendant did not see fit to instruct an expert in neurology in this case.  That medical report was dated 19 August 2006.

92. After examining the plaintiff (18 August 2006) Dr Choa came to the following opinion :

(a)  the plaintiff may have suffered a minor head injury which resulted in a mild concussion since the plaintiff remembered hitting his head against a hard object during the accident;

(b) that mild post concussional syndrome might account for his headache and mild cognitive impairment;

(c) the plaintiff may have underperformed on the Mini Mental State Examination as his ability to give a clear and detailed history did not fit in with the apparent difficulty in attention and concentration which he exhibited during formal testing;

(d) other than the degenerative change in his spine, all radiological examination done on the plaintiff showed him to be normal;

(f)  Dr Choa agreed with Dr Singer that the plaintiff’s symptoms were mostly the result of a somatoform disorder; and

(g) purely from a neurological point of view, Dr Choa assessed the permanent impairment to be 2%, and from that same viewpoint, the plaintiff should have been able to resume his pre-accident work six months after the accident.

Psychiatric

93. The plaintiff was examined by Dr K. Singer, an expert in psychiatry instructed by the plaintiff on 8 November 2005.

94. Dr Singer was called to give live evidence.  He adopted the contents of the medical report and supplemental report prepared by him as the basis of his evidence.

95. After identifying the plaintiff’s complaints and symptoms, Dr Singer stated in his report that those symptoms, particularly the pain and urinary symptoms cannot be fully explained by a general medical condition.  The predominant feature relating to the plaintiff was that there was a striking discrepancy between the severity of the complaints and the paucity of physical lesions to account for them.

96. Dr Singer then stated that this suggest either a diagnosis of somatoform disorder or malingering/exaggeration.  He explained the difference between the two to be that in somatoform disorder there are adequate psychological factors to account for the symptoms and their severity, but in malingering or exaggeration such psychological causative factors are absent.

97. Dr Singer went on to give five possible psychological causation which are summarised as follows :

(a)  the accident itself which may be expected to be a stressor causing psychological symptoms such as depression and anxiety, more severe in the beginning and less subsequently;

(b) the physical injuries, though minor would causes some symptoms in the initial stages and less later on;

(c) other aftermath of the accident and injury including the fear of continuing disability and symptoms, inability to earn, to play role in family and society.  These may be expected to contribute to the plaintiff’s stresses causing somatoform disorder though their exact weight is difficult to determine;

(d) resentment against his supervisor for instructing him to cope alone with the task at the time of the accident, thus being responsible for the accident.  Dr Singer recognised that though this may be a psychological factor contributing to the somatoform disorder, it may not be strictly accident related; and

(e)  the disability of the plaintiff’s child.  The plaintiff admits this has been a source of stress since the child was born but says he was mentally normal though concerned pre the accident.  Again it is recognized by Dr Singer that this factor, even if causative, is not accident-related.

98. On that basis, Dr Singer concluded that the plaintiff had somatoform disorder of a moderate degree and which was associated with features, but not amounting to diagnoses of, depression and Post Traumatic Stress Disorder (PTSD).  Furthermore, Dr Singer stated that he had not been able to elicit any significant evidence of malingering since all the inconsistencies can be accounted for by somatoform disorder.

99. Dr Singer took the view that with proper treatment, the prognosis for the somatoform disorder could be better but that the chronicity and severity of the complaints were unfavourable factors which would require intensive psychiatric treatment.

100. Dr Singer recommended treatment for 26 weeks consisting of 13 sessions at two-weekly interval costing $2,500 per session in the private sector and the cost of medication estimated at $200 per week.

101. Dr Singer assessed the plaintiff’s impairment to be 20% of the whole person before treatment and 5% after treatment.

102. Dr Chung See Yuen, the expert in psychiatry instructed by the defendant, examined the plaintiff on 16 July 2007 and prepared a medical report dated 27 July 2007 giving his opinion in the matter.  At the trial, Dr Chung was called to give oral evidence.

103. Dr Chung concluded that the plaintiff’s complaints were compatible with an adjustment disorder with mixed anxiety and depressed mood and that the plaintiff suffered only from mild depressive symptoms which are adverse psychological reaction in response to the stressors caused by the accident and resultant physical problems.

104. He disagreed with Dr Singer that the plaintiff suffered from somatoform disorder, but rather, has exaggerated his complaints.  In paragraph 28 of his medical report, Dr Chung listed out inconsistent findings and exaggeration.  Those findings together with the reasons given by him in paragraph 36 of his medical report forms the basis for Dr Chung’s disagreeing that the plaintiff suffered from somatoform disorder.

105. Dr Chung further believed that the adjustment disorder with mixed anxiety and depressed mood was largely in remission and that the plaintiff was mentally fit to return to his pre-accident job as an artisan.

106. From a psychiatric point of view, Dr Chung stated that the plaintiff will not suffer disability in the labour market.

107. The plaintiff had received appropriate psychiatric treatment from the public sector and had shown improvement.  However, it was appropriate for the plaintiff to continue psychiatric treatment in the public sector which could be tailed off after six months.

108. Dr Chung assessed the plaintiff’s impairment due to his mental problems to be 3% of the whole person.

Pain suffering and loss of amenities

109. From the medical reports of the hospitals and the treating doctors, it is clear that the orthopaedic injuries suffered by the plaintiff are very minor.

110. Perhaps the most severe of these would be the microfracture to the 6^th rib, but even so, I accept the opinion of Dr Yeung that there was no displacement of the bone and that fracture would have healed without consequence within six months.  This was verified by the subsequent CT scan taken on 9 November 2005 which showed no abnormality.

111. The major dispute between the parties here concern the psychiatric or psychological condition of the plaintiff.  Dr Singer was of the view that the plaintiff suffered from somatoform disorder (which explains the very severe symptoms complained of by the plaintiff but not backed up by the pathology) while Dr Chung took the view that the plaintiff had an adjustment disorder.

112. According to Dr Singer, such inconsistencies in respect of the symptoms complained of by the plaintiff which were not supported by any pathology or physical lesions support the diagnosis of somatoform disorder.  However, in this case, I find that there are other inconsistencies coming from the plaintiff which show that there has been much exaggeration on his part as to his condition.

113. Firstly, the plaintiff told a number of doctors that he fell some 15 feet as recorded by them in their medical reports, when nothing of the sort happened.  The doctors included Dr Singer and Dr Choa, both experts instructed by the plaintiff.  The same was also recorded in the medical report of Dr Ho Chun Por from PMH dated 5 October 2005.

114. In cross-examination, the plaintiff agreed that he had mentioned “15 feet” to the doctors, but explained that he was trying to tell them the distance from the platform to the sea, and not that he had fallen that height.  He further explained that he did not express himself clearly or that the doctors may have misunderstood what he was telling them.

115. I do not accept that explanation of the plaintiff.  Since the plaintiff did not fall into the sea, no explanation had been given by the plaintiff as to why he had to tell the doctors the distance from the platform to the sea.  Moreover, it may well be that one doctor may have misunderstood the plaintiff, but I find it unlikely that all three of them would have misunderstood the plaintiff to have said that he fell 15 feet.

116. Secondly, in all the medical reports of the government hospitals and treating doctors who treated the plaintiff, there was no mention of any head injury suffered or even complained of by the plaintiff until the Psychological Report of Dr Eugenie Leung, Clinical Psychologist of Castle Peak Hospital, paragraph 5 of which states :

“5.   In the most recent interview on 20 October [2005], [the plaintiff] complained of forgetfulness and blurred vision.  He said that he had a head injury in 2003, of which he had not previously reported.  He also felt very disappointed at the recommendations of the Medical Board, and said that his supervisors and colleagues kept telling him to ask for another Medical Board to review his condition.”

117. When cross-examined on his head injury, the plaintiff said that it was almost one week after the accident that he remembered having a head injury.  He maintained that during follow ups, he did tell his treating doctors about his head injury, which he alleged to be before October 2005.

118. Once again I do not accept that evidence of the plaintiff.  That evidence is clearly not borne out by any of the medical reports from the government doctors and hospitals, and indeed directly contradicted by that passage cited from the report of Dr Eugenie Leung.

119. Thirdly, there is also inconsistency in the plaintiff telling different doctors and/or experts as to whether he lost consciousness or not at the time the accident happened.  In some reports it was recorded that he alleged to have lost consciousness for about a minute, in other reports it was for about six minutes, while in yet other reports the plaintiff claimed that he did not lose consciousness.

120. All of these inconsistencies do not go to supporting Dr Singer’s diagnosis of somatoform disorder, but show the plaintiff to have greatly exaggerated the consequences of the accident and the injuries suffered by him.

121. In this respect I also take into account the fact that Dr Brian Choa stated in his report that the plaintiff had underperformed during the Mini Mental State Examination conducted by Dr Choa.

122. In the circumstances, I am not disposed to accept the opinion evidence of Dr Singer (and for that matter also Dr Choa) that the plaintiff has suffered from somatoform disorder.

123. Instead I prefer the opinions expressed by the defendant’s expert, Dr Chung, in particular his conclusion that there has been exaggeration on the part of the plaintiff and also his diagnosis of the adjustment disorder of the plaintiff. 

124. The diagnosis of adjustment disorder is further supported by a similar diagnosis made by Dr Jimmy Y.S. Dong and also Dr Eugenie Leung, both of Castle Peak Hospital.

125. I further take the view that the adjustment disorder of the plaintiff was caused due to a number of stressors, some of them related to the accident but not all.  The other stressors were related to his family condition, in particular his intellectually disabled son.

126. However, since one of the cause of the adjustment disorder is the accident, for the purpose of assessing the award for under this head, I will take on board the whole of the adjustment disorder as diagnosed by Dr Chung without in any way apportioning the different causes.  In any event such apportionment would be an impossible exercise to carry out in the absence of expert evidence relating thereto.

127. Furthermore, I do not accept that the plaintiff had suffered from any head injury from the accident.  In that respect I find that his complaint of head injury was not something which occurred at the time of the accident but an exaggeration by him possibly with a view to enhance his disability or impairment after the decisions of the Medical Board in August and early October 2005.

128. In the light of such finding, I do not give any weight to the opinion expressed by Dr Brian Choa relating to the plaintiff’s mild post concussional syndrome.

129. For the award under this head, I have been referred to the case of Chan Chung Keung v. Greenroll Limited t/a Conrad Hong Kong (HCPI 275/2005) and also the case of Boivin v. Wong King Yin & anr (HCPI 195/2000).  However, the injuries sustained by those two plaintiffs in the two cases referred to are markedly different from the present case.

130. In Boivin’s case the main injury was a severe whiplash injury to her cervical spine.   In Chan’s case it was a soft tissue contusion of the lower back, although in both those cases, both plaintiffs did encounter some psychological symptoms.

131. I do not find those cases useful as a guide to assessing pain suffering and loss of amenities in the present case.

132. Given all the circumstances of this case and also the findings made above, I assess that a reasonable award for pain suffering and loss of amenities to be $350,000.

Pre-trial loss of earnings

133. The plaintiff’s claim for pre-trial loss of earnings is for the entire pre-trial period on the basis that he is still not fit to return to work of any kind.

134. It is common ground that the plaintiff has been paid totally $375,563.93 from the date of accident up to 26 April 2006.  This sum is made up of $353,936.35 being fully paid sick leave for the sick leave period of 825 days from the date of accident to 4 March 2006.  From 4 March to 26 April 2006, the plaintiff took normal sick leave (i.e. was on full pay).  He was paid $11,052.58 for 4 to 31 March and was also paid $10,575 for 1 to 26 April 2006.

135. Thereafter, the plaintiff was on no pay leave on his own application and has not returned to work despite the fact that a number of Medical Boards convened in 2005 right up to November of that year had found the plaintiff to be fully fit to resume the duty of his office.

136. A further Medical Board convened on 20 December 2006 again confirmed the plaintiff to be fit to resume work, but despite that the plaintiff has still refused to resume his duties.

137. Although I have accepted the opinion given by both the experts of the defendant, however, in light of the fact that the plaintiff has been given sick leave up to April 2006 and has been fully paid his sick leave pay for that period of sick leave, nor has any serious challenge been made by the defendant in this case as to the sick leave granted to the plaintiff by his treating doctors, I will need to give recognition to that sick leave period.

138. In the circumstances of this case, I find that the plaintiff is entitled to full pre-trial loss of earnings up to the end of April 2006 but not thereafter as he was fit and suitable to have returned to his pre-accident work after that date.

139. The parties have agreed that the average monthly earnings of the plaintiff before the accident was $14,722.74.  This figure is inclusive of all his other allowances.

140. There is unchallenged evidence from the defendant that the pre-accident salary of the plaintiff was reduced by $420 per month from 1 January 2004, and was reduced by $840 per month from 1 January 2005.

141. From the date of accident to the end of April 2006, the plaintiff would have earned ($14,722.74 x 5.25 months) + ($14,302.74 x 12 months) + ($13,882.74 x 16 months) = $471,051.00.

142. This figure, reduced by the $375,564 which the plaintiff has received gives $95,487 which is the amount assessed to be pre-trial loss of earnings.

Special damages

143. Special damages have been agreed between the parties at $26,000 and the same will be awarded.

Future loss of earnings

144. In light of the findings above, that the plaintiff was fit to resume his pre-accident work, there will be no future loss of earnings awarded.

Loss of earnings capacity

145. This has been claimed by the plaintiff.

146. However, in light of the findings above, that the plaintiff could have resumed his pre-accident work, plus the fact that the plaintiff’s position with the Marine Department is still awaiting his return to office, there should not be any disadvantage to the plaintiff in the labour market in future.

147. For this reason, there will be no award made under this head since loss of earnings capacity is only awarded where there is a real risk of a disadvantage in the labour market. 

Loss of pension and loss of promotional prospect

148. Although these two heads of damages had been pleaded by the plaintiff in his Revised Statement of Damages, it had not been pursued by counsel for the plaintiff in final submission.

149. I can only surmise that from the failure of counsel to make any submission in respect of these heads of damage that the plaintiff no longer pursue same.

150. In any event, in the light of the above findings, in all likelihood, even if these heads of damage had been pursued, no award would have been made since if the plaintiff can return to his pre-accident work there should be no loss under either of these heads of damage.

Future expenses

151. Neither has counsel for the plaintiff made any submission in respect of future expenses, although, once again pleaded in the Revised Statement of Damages.

152. The only possible future expenses given the circumstances of this case and the findings made, may be in respect of future medical costs for psychological or psychiatric treatment.

153. However, since the plaintiff has at all times been treated for his psychological condition in the Castle Peak Hospital (which is free for a government servant) and in the absence of any suggestion that such treatment is not up to standard when compared with the private sector, or any other reason advanced as to why it would be reasonable for the plaintiff to seek such treatment from the private sector, I am of the view that it would be reasonable for the plaintiff to continue seeking such treatment from public hospitals.

154. Accordingly there should not be any assessment for future treatment cost.

INTEREST

155. Interest would be awarded at 2% p.a. for general damages for PSLA from date of Writ.

156. For pre-trial loss of earnings and special damages, interest would be awarded at half judgment rate from date of accident.

SUMMARY

157. 

PSLA	$350,000
Loss of pre-trial earnings	95,487
Special damages (agreed)	26,000
Interest on PSLA	14,583
Interest on all specials	25,472
Sub-total:	$511,542

DEDUCTION

158. There will also need to be deducted from this sub-total, an amount of $90,000 already received by the plaintiff in respect of ECC compensation.

159. The final figure therefore comes to $421,542.00.

CONCLUSION

160. There will be judgment to the plaintiff in the sum of $421,542.00.

COSTS

161. In view of the amount recovered by the plaintiff, which is well below the District Court jurisdiction, there will be a cost order nisi that the defendant pays to the plaintiff the plaintiff’s costs of this action, to be taxed on the District Court scale if not agreed.

162. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Neal Clough, instructed by Messrs Henry H.C. Wong & Co.,  for the Plaintiff

Mr Daniel Chan, instructed by Secretary for Justice, for the Defendant