Lam Wah v. A.S. Watson & Co Ltd

HCPI 676/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 676 OF 2007

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BETWEEN

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Coram :Before Master J. Wong in Court

Date of Hearings: 26, 27 and 30 March 2009

Date of Decision: 25 May 2009

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ASSESSMENT OF DAMAGES

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Introduction

1.The Plaintiff was a senior cook of the Park’n Shop at Olympian City, West Kowloon.  On 21 December 2005, he slipped and fell onto the ground in the kitchen while working.

2.Consent Judgment on liability was entered on 18 August 2007 herein when the Defendant agreed to pay 90% of the damages suffered by the Plaintiff, to be assessed.  In the meantime, his ECC was settled on 5 December 2007.

3.Parties appeared before me for 3 days in March 2009.  Mr. Andrew S.Y. Li of Counsel acted for the Plaintiff and Mr. Samuel K.Y. Chan of Counsel represented the Defendant.  There was only one witness at the Assessment, namely, the Plaintiff.  His credibility is one of the two major issues to be decided.  The other is which side’s expert is to be preferred by this Court.  Both of them will determine the following questions to be decided by the Court.

(a)  How serious the Plaintiff was injured?

(b)  Could and can he return to his pre-injury job?

(c)  Depending on the answer to (b), did he mitigate his loss in the circumstances?

(d)  What should be the proper damages to be awarded to the Plaintiff under the circumstances?

Background

4.The Plaintiff was born in China on 13 September 1961.  He completed his Form 2 studies there and migrated to Hong Kong in 1980.  He started to work in kitchen at different restaurants thereafter.  From 2 August 2001, the Plaintiff began his job as a senior cook with the Defendant until he met the subject accident.

5.He first went to the Accident and Emergency Department of Queen Elizabeth Hospital.

“……

He sustained injury whilst on duty on 21 December 2005.  He slipped and fell accidentally with heavy object.

2. On examination, the findings were: -

·   General condition was good.

·   Physical examination revealed tenderness over the lumber spine, otherwise unremarkable.

·   The clinical diagnosis was sprained back.

3. He was treated and discharged with pain killer.  Sick leave was recommended from 21 December 2005 to 24 December 2005 inclusive.  Permanent disability, if any, is to be assessed by the Medical Assessment Board ……”

(Report dated 26 October 2006)

6.A few days later, the Plaintiff went to Princess Margaret Hospital for further treatment.

“……

Mr. Lam was referred to Department of Orthopaedics & Traumatology of Princess Margaret Hospital by Department of Accident & Emergency for injury on duty.

He was first seen in the orthopaedic clinic on 9.1.06.  He alleged that he had back sprain with bilateral lower limb numbness, right ankle pain, left elbow & left knee contusions while lifting a load on 21.12.05.

Physical examination of the spine did not reveal any tenderness or stiffness.  No objective neurological deficit was found over both lower limbs.  The sphincter control for defaecation was intact.  The left elbow & left knee were remarkable.

X-ray of the lumbosacral spine & right ankle did not reveal any fracture.  MRI of the lumbosacral spine on 11.2.06 showed a mild disc bulging at L4/5, with degenerative change of the L4/5 & L1/2 discs.  No significant spinal or foraminal stenosis was found.  MRI of the right ankle in the private sector on 12.6.06 showed mild tenosynovitis of the posterior tibialis tendon only.  No fracture or osteochondral lesion was found.

No operation was indicated and the treatment was all along conservative with analgesics & physiotherapy.  Work capacity rehabilitation was carried out by occupational therapists.  The progress was static, and change of job was suggested.  When his condition was last reviewed on 5.10.06, back pain & right ankle pain were found to persist.  Further routine follow up is pending.

……”

(Report dated 7 December 2006)

7.From January 2006 to September 2006, the Plaintiff received a total of 27 physiotherapy treatments.  The occupational therapist said on 7 November 2006 that:

“ 3. Initial appointment was given on 7^th August 2006.  However, Mr. Lam failed to turn up.  Initial work capacity evaluation, with functional capacity evaluation, job analysis and work simulated evaluation, was done on 15^th August 2006.  He got complaints of right ankle and left knee pain, low back pain radiating down to bilateral lower limbs, and bilateral lower limbs numbness.  His self-reported standing and walking tolerance was decreased.  There was also decrease in lifting, pulling and pushing capacity.  Mr. Lam worked as cook with heavy physical demand.  His work capacity was assessed to be un-matched with the previous job demand with significant degree of limitation.  Work hardening program, scheduled three sessions per week, was started on 18^th August 2006.  Regular reassessment was done and program was adjusted according the progress.  He had also attended the educational group of low back pain.

4. Mr. Lam had attended training sessions during the period of 18^th August 2006 to 25^th October 2006.  Some progress was shown.  The latest assessment was done on 25^th October 2006.  Mr. Lam still got persistent complaints of low back pain and bilateral lower limbs pain.  He walked unaided with normal gait and was able to perform squatting posture with upper limb support.  His self-reported standing and walking tolerance were similar.  There was also similar in lifting, pulling and pushing ability.  The condition was static.  His work capacity was assessed to be un-matched with the previous job demand.”

8.In the meantime, on 19 December 2006, the Employees’ Compensation Board certified that the Plaintiff suffered back injury resulting in residual back pain and right ankle pain.  A 2% permanent loss of earning capacity was determined and sick leave from 9 January 2006 to 1 November 2006 was granted.

9.At about the same time, on 28 December 2006, Dr. Hsu of Princess Margaret Hospital certified that the Plaintiff was permanently unfit for his then job as a cook due to the persistent back pain, right sciatica and right ankle pain.

10.Afterwards, the Plaintiff went to private doctors for consultation and treatment.  Sick leave was further granted to him until 25 March 2008.  His main treating doctor took the view that the Plaintiff was suffered from persistent low back pain, right ankle pain and right sciatica complicated with depression.  He was therefore permanently unfit for his job as a cook.

11.On 1 August 2007, the Plaintiff commenced the present proceedings leading to the assessment before me as aforesaid.

DISCUSSION

Is the Plaintiff a credible witness?

12.Mr. Li told me to find the Plaintiff a credible witness and accept his case.  On the other hand, Mr. Chan persuaded me not to do so.  Upon careful thought, I have decided to agree with Mr. Li.

(a)  To start with, I ask myself to bear in mind the personal background of the Plaintiff, including that he only studied up to Form 2 in the Mainland and worked for over 20 years as a cook in different restaurants in Hong Kong.  Further, at the material times, he was the main breadwinner of the family, working diligently, having a family of a wife and 3 young children studying locally.

(b)  Mr. Chan submitted that the Plaintiff was proved to be not reliable under cross-examination.  I respectfully disagree. I do not need perfect performance of the Plaintiff to answer each and every questions put to him. It is understandable for somebody like him to make minor mistakes. They were caused by skillful cross-examination of Counsel, defensive attitude of himself, lost of certain details because of passage of time and so forth.  Hence, when Mr. Chan complained about the exaggeration of pain by the Plaintiff, inaccurate description of his job nature, incredible and illogical excuses of the reasons for defaulting therapy appointments, and so forth, I do accept the explanations offered by the Plaintiff and his Counsel.

(c)  Surveillance tapes were produced attempting to prove that the Plaintiff lied on his extent of injury.  On face of it, I am afraid they did not assist this Court.  It is true that the Plaintiff was proved to be able to walk continuously in daily life for some time without much difficulty.  However, it is not his case that he cannot even walk, but unable to perform the task of a cook which requires quite some physical strength.  Further, against the tapes, the Plaintiff immediately produced a third supplemental statement explaining his position, and pinpointing that the recordings were selective, including possibly the non-recording of certain parts showing that he had to rest, take pain-killers and perform exercise with limitation in the park.  To these responses, I have heard nothing from the surveillance to argue otherwise.

How serious the Plaintiff was injured?

13.Having found that the Plaintiff’s evidence is to be accepted on balance, I move to determine the extent of his injuries caused by the accident.  In so doing, I agree to adopt the approach suggested by Mr. Li, i.e. to apply common sense and to look at the medical evidence as a whole (Lee Kin Kai v Ocean Tramping Co. Ltd. [1991] 2 HKLR 233).

(a)  My overall impression towards the Plaintiff is that he is generally honest.  Nonetheless, there might be occasions whereby he overstated his pain, including in particular when he met the occupational therapist Miss Fion Chan on 15 August 2006.  Having said that, when these overstatements are insufficient to turn him into an incredible witness generally, I will keep such factor in mind throughout the assessment, especially under the item of PSLA.

(b)  All expert before me, apart from the one acting for the Defendant, Dr. Yip, generally agreed the sufferings as claimed by the Plaintiff.  I prefer to accept the “majority” view on balance.  Without any disrespect to the Defendant’s expert Dr. Yip, it appears to me that he from time to time commented adversely upon the attitude and behaviour of the Plaintiff at the examinations.  They included that the Plaintiff could not recall quite some events and particulars. He did not want to discuss certain matters with Dr. Yip, and so forth.  In my view, it is more probable than not that Dr. Yip might lose certain objectivity in coming to his opinion on the extent of injury of the Plaintiff.

(c)  On balance, I prefer to accept the evidence of the Plaintiff’s expert Dr. Lam.  Hence, as a matter of findings at the accident, the Plaintiff suffered from soft tissue injury to his back, sprained right ankle and soft tissue to the knee.  After treatment, the left knee recovered, but there was still significant back pain as well as residual pain at the right ankle.

Could and can the Plaintiff resume his pre-injury job?

14.Parties disputed vigorously the employability of the Plaintiff.  Having preferred Dr. Lam’s opinion rather than that of Dr. Yip, it follows that the Plaintiff will not be able to resume the job of a cook. Both the government occupational therapist and government doctor indeed supported such a view.

Has the Plaintiff properly mitigated his loss in the circumstances?

15.The Plaintiff explained in his witness statements and oral testimony at the Assessment as to what and why he did in the circumstances.  Briefly, he enjoyed a good relationship with his ex-employer.  He also treasured the job.  After the accident however, he knew that he could no longer perform the heavy duties required.  The instructions of the government doctor, physiotherapist and occupational therapist were followed but the Plaintiff did not improve much.  When the government doctor certified that he could not resume the job, he told his ex-employer accordingly and was arranged to resign.  Thereafter, he continued to receive further treatments within his capability.  He sought assistance from the Labour Department.  He received training.  He tried several different jobs, but not successful.  In the end, commencing from 28 November 2008, he managed to secure a job of security guard that he could handle with his present ability.

16.On balance, I accept the Plaintiff’s case that he has taken reasonable steps to mitigate his loss in the manner in which he did.

Assessment of Damages

17.Here came the assessment.

PSLA

18.Mr. Li asked for $400,000 damages under PSLA when Mr. Chan proposed only $100,000. Both Counsel also submitted a number of   cases supporting their suggestions.  With the above findings in mind, including that there are some overstatement of pain on the part of the Plaintiff, I find the case of Li Wan Kei v Hyundai Engineering & Construction Co. Ltd. [2001] HKCU 402, HCPI No. 577 of 2004 (Suffiad J, 6 March 2006) a better comparable when the Plaintiff therein suffered a bit more serious than the one in the present case.  I find a sum of $300,000 reasonable in the circumstances.

Pre-trial loss of earnings

19.Although parties agreed that the average monthly income of the Plaintiff was $14,940, they disputed heavily as to the pre-trial loss of earnings.  Mr. Li said about $554,724 when Mr. Chan proposed $167,323 only.

20.The difference was caused by the dispute on the duty of mitigation as well as the reasonableness of the sick leave certificates issued by both the government and private doctors.  Of course, I accepted that the Plaintiff did discharge his duty to mitigate in the circumstances.  Regarding the sick leave, while I agree with Mr. Chan as a matter of principle that this Court is not bound to accept them as signed by the doctors, I do not find evidence or sufficient evidence before me allowing me to rule that they should not be accepted on balance.

21.Hence, Mr. Li’s calculations are to be accepted.

$

(a)  $14,940 x 35 months (21.12.05 – 24.11.08) - $2,500 520,400

(b)  $(14,940 – 6,359) x 4 months (24.11.08 – March 09) 34,324

_______

554,724

Future loss of earnings

22.The Plaintiff was 44 when he met the subject accident.  He is now 47.  Mr. Li suggested a multiplier of 10 because the Plaintiff would normally retire at 65.  I agree to accept his submissions as well as calculations.  Hence, there will be future loss of earnings at $1,029,720 [($14,940 – $6,359) x 12 x 10].

Loss of MPF

23.Mr. Li also claimed loss of MPF for the Plaintiff.  I see no reason why they should not be allowed.  Hence, $79,222 [($554,724 + $1,029,720) x 5%] is awarded accordingly.

Loss of earning capacity

24.In my view, the Plaintiff will face some disadvantage in the larbour market in future in light of his physical condition under the accident.  Salary of about 5 months is appropriate in the circumstances and I therefore will grant $30,000 under this heading.

Expenses

25.Medical and traveling expenses in the respective sums of $7,745 and $6,710 were not disputed.  I order them as claimed.  As to tonic food, ointment and plaster, Mr. Chan complained that they were not supported by documentary evidence and as such only reasonable sums were to be allowed.  I agree with him as a matter of principle and find the respective sums of $10,000 and $2,000 accordingly.

Summary

26.I sum up the above damages in the followings.

		$
(a)	PSLA	300,000
(b)	Pre-trial loss of earnings	554,724
(c)	Los of future earnings	1,029,720
(d)	Loss of MPF	79,222
(e)	Loss of earning capacity	30,000
(f)	Expenses $(7,745 + 6,710 + 10,000 + 2,000)	26,455
		2,020,121

27.The Plaintiff is also entitled to interest on PSLA at 2% per annum from the date of writ to the date hereof.  As to (b) and (d), interests are to be calculated at half of the judgment rate from the date of the accident to today.

28.Certainly, to arrive at the actual damages to be paid to the Plaintiff, the sum of $424,066 under ECC as well as the 10% contributory negligence conceded by the Plaintiff has to be taken into account.

Costs

29.There is also an order nisi that the Defendant shall pay costs of the Plaintiff in the Assessment, including all costs reserved and Certificate of  Counsel for hearings on  26, 27 and 30 March 2009, on High Court scale and party-and party basis to be taxed , if not agreed. 

Mr. Andrew S.Y. Li instructed by Messrs. W.K. To & Co. for the Plaintiff.

Mr. Samuel K.Y. Chan instructed by Messrs. Deacons for the Defendant.