Lau Tim Shun v. City Engineering Ltd and Another
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HCPI 198/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 198 OF 2008 ------------------- BETWEEN
------------------- Before: Hon Sakhrani J in Court Date of Hearing: 4, 5 and 29 June 2009 Date of Judgment: 28 July 2009 __________________________ J U D G M E N T __________________________ 1.This is a claim for damages for personal injuries sustained by the plaintiff. 2.At all material times the plaintiff was employed by the 1st defendant as a steel formworker at a construction site at Phases 3 & 6, Pak Tin Estate, Sham Shui Po, Kowloon (“the site”). 3.The 1st defendant was a sub-contractor of the 2nd defendant, the principal contractor at the site. 4.The plaintiff’s case is that he was injured in two separate accidents at the site on 17 April 2003. This is denied by the defendants. 5.At the trial it was accepted by the defendants that if the court were satisfied that the plaintiff was injured on 17 April 2003 in the two accidents at the site as claimed by the plaintiff then the defendants would concede that the accidents were due to the negligence of the defendants. 6.The only question to consider on the issue of liability is whether the accidents on 17 April 2003 did occur in the manner as described by the plaintiff. 7.The issue of quantum is also disputed. Two matters have been agreed on the issue of quantum. The first is that the plaintiff earned $1,000 per day working for the 1st defendant at the site at the material time. The second is that special damages have been agreed at $23,281. The witnesses 8.I heard evidence from the plaintiff. I also heard evidence from Lee Siu Nang (“Lee”) the safety and environmental protection officer of the 2nd defendant. 9.I find that the plaintiff was a dishonest, untruthful and unreliable witness. I am satisfied that he has not told me the truth about having sustained injuries in the first and the second accidents on 17 April 2003. 10.I find that Lee was an honest, truthful and reliable witness. I have no hesitation in accepting him as a witness of truth. I accept his evidence. 11.Where Lee’s evidence is at variance with the evidence of the plaintiff, I have no hesitation in preferring the evidence of Lee, whose evidence I accept to that of the plaintiff, whose evidence I reject. Liability 12.The plaintiff’s case is that he was injured in two separate accidents at the site on 17 April 2003. 13.The first accident, according to the plaintiff, took place at about 10.30 am. He was instructed to assist in hooking up metal moulds which were to be lifted from the ground level to the roof top where workers would assemble the moulds. The moulds were very heavy and had to be lifted up by a crane. The moulds were about 2.4 or 2.5 metres high. The plaintiff was alone at the ground level at the time. 14.The plaintiff said that each mould was to be lifted up from the ground level to the roof top by crane. The moulds would be paired together at the roof top by workmen. 15.The ground level was uneven. The plaintiff had to place the hook from the sling of the crane onto the metal mould (“mould B”) which was to be lifted up to the rooftop. He climbed onto the top of mould B to hook it to the sling of the crane. After that he climbed back down to the ground level to steady the other mould (“mould A”). 16.The plaintiff explained in evidence how he held mould A when he climbed back down after hooking mould B onto the sling of the crane. He marked in exh P1 the place where he was standing when holding mould A. He was trying to steady mould A while mould B was being lifted up by the crane. He had to do this because the ground was not even and he had to prevent mould A from being struck when mould B was being lifted. 17.The plaintiff said that when he attempted to steady mould A the movable part of the mould swung towards him and hit him on the back causing him low back pain (“the first accident”). He said that he was struck quite hard in the middle of his back, in the centre of his back and that it was quite painful. He said that he did not sprain his back on this occasion but it was an injury caused by being hit by a hard object namely, the movable flap of mould A. He also said that on this occasion he was not struck anywhere else. 18.The plaintiff said that he sustained a second accident at about 1 pm on the same day 17 April 2003. He said that he had just climbed onto the top of another metal mould to hook up the mould to the sling of the crane. Whilst he was on top of the metal mould he saw the sling of the crane coming towards him so he dodged it and jumped down to the ground. He marked in exh P3 the place where he was on top of the metal mould when he saw the sling coming towards him. He jumped down to the ground on the left side but lost his balance and fell onto the ground. He said that the ground was uneven and he bounced and fell to the ground. He said that when he jumped down he landed on both feet but lost his balance and fell backwards. There were heaps of concrete on the ground and his back was injured by a piece of concrete about 5 inches in diameter. He also said in evidence that his hip had landed on the ground and then his backbone hit a stone, presumably, the piece of concrete 5 inches in diameter (“the second accident”). 19.The plaintiff also said that he did not sprain his back in the second accident. 20.It is clear from the evidence of the plaintiff that he did not suffer any sprain injury as a result of the two accidents on 17 April 2003 but that his injuries were as a result of being hit by hard objects. 21.By the order of Master C. P. Pang dated 17 October 2006 it was ordered, inter alia, that the reports of the Government hospitals as to the treatment and care of the plaintiff were to be adduced as agreed evidence without calling the makers thereof. 22.According to the medical report of Dr Ho Wong King (“Dr Ho”) dated 10 February 2006, it is clear that on 17 April 2003 the plaintiff went to see Dr Ho. According to the report he walked into the clinic with normal gait and complained of lumbago (low back pain) for one day. According to Dr Ho, the plaintiff did not mention any industrial accident at all to Dr Ho. 23.What is of importance is that Dr Ho carried out a physical examination on the plaintiff and he found no external injury mark on his body including his back. 24.Dr Ho carried out a spinal examination done on prone position and apart from muscular tightness and tenderness at the lumbar region, there was no other positive finding. The plaintiff received an injection and some medication. 25.The plaintiff, however, gave evidence that he did tell Dr Ho when he visited him on 17 April 2003 that he had hurt his backbone when he was working and that he had pain in his back. He said that he did tell Dr Ho that he had been hit by a metal plate and injured in the back and backbone. He also said that he did tell Dr Ho that he had jumped off the top of a metal mould onto the ground to avoid being hit by a sling. He also said that Dr Ho saw that his back was red and swollen. 26.The plaintiff’s evidence is contradicted by the medical report of Dr Ho. I have no hesitation in rejecting the plaintiff’s evidence that he had told Dr Ho that he had been injured in the accidents at work on 17 April 2003. I do not believe the plaintiff. 27.On the evidence the plaintiff went to the Accident and Emergency Department (“A & E”)of Queen Mary Hospital (“QMH”) a few days later on 22 April 2003 because of intolerable pain. 28.According to the medical report of Dr Wu Wing Yee (“Dr Wu”) dated 13 May 2004, the plaintiff was examined by him on 22 April 2003. The plaintiff complained of sprain back after lifting weight at work on 14 to 15 April 2003. On examination there was tenderness over his lumbar-sacral area. There was no neurological sign. X-ray of his lumbar-sacral spine revealed no fracture. He was admitted for further management. 29.According to Dr Wu’s report the plaintiff attended again on 1 May 2003 for persistent low back pain after discharge from hospital. 30.By 1 May 2003 the plaintiff said that the date of injury was 17 April 2003. However, as is clear from the report of Dr Wu, when he gave his history on 22 April 2003 the plaintiff mentioned the dates 14 and 15 April 2003 as the probable date of his injury. 31.The plaintiff gave evidence that when he went to QMH on 22 April 2003 he said that he only told the doctor that he had injured his back when he was working. He said that the doctor did not ask him how he had been injured and he did not know how to tell him, so he did not tell him. He said that he did not tell him whether he had sprained himself or had been hit by a hard object. He denied that he had complained to the doctor of spraining his back after lifting weight. 32.I do not believe the plaintiff. I find that he has not been telling the truth. 33.At paragraph 1 under section E of his witness statement, the plaintiff said that he recalled that when the doctor at A & E of QMH asked him what his complaint was, he found himself speechless due to intolerable back pain. He simply said to the doctor that “last week I had sprained my back”. In evidence he denied that he had told the doctor that he had sprained his back. The plaintiff was unable to satisfactorily explain why it is recorded in his witness statement that he had told the doctor that he had sprained his back. His witness statement contradicts his evidence that he did not tell the doctor that he had sprained his back. 34.The plaintiff’s evidence is also contradicted by Dr Wu’s report. In my view, Dr Wu has accurately recorded what the plaintiff had told him and the plaintiff was trying to explain away what is contained in Dr Wu’s report by saying that he did not tell Dr Wu anything other than that he had been injured at work the week before. According to the report of Dr Wu it was the plaintiff who had mentioned 14 and 15 April 2003 as the probable date of injury. The plaintiff denied this but I do not believe him. 35.On 22 April 2003 the plaintiff was also seen by a doctor of the Department of Orthopaedic Surgery of QMH. According to the medical report of Dr Yeung Yeung dated 17 May 2004 he was first seen for chronic low back pain on 22 April 2003. There was no acute episode of severe back injury but the plaintiff claimed that the chronic low back pain was attributed to repetitive weight lifting motion in his job as a construction site worker. He was diagnosed to have sprained back provisionally. 36.Thus it is clear that apart from complaining to Dr Wu at A & E of QMH that he had sprained his back after lifting weight at work, on the same day 22 April 2003 when seen by the Department of Orthopaedic Surgery the plaintiff also claimed to have low back pain attributed to repetitive weight lifting at work. 37.According to the plaintiff, he had been struck on his back by the movable flap of the metal mould in the first accident. In the second accident he had jumped down from the top of the metal mould, lost his balance, fell backwards hitting his hip and back against the uneven ground with heaps of concrete there and hitting his back against a piece of concrete about 5 inches in diameter. If the plaintiff had been injured in the manner as described by him in the first and second accidents, it is, in my view, inconceivable that there was no external injury mark on his body when he was examined by Dr Ho on the very same day 17 April 2003. 38.I am satisfied that the plaintiff has not been telling the truth and I have no hesitation in rejecting his evidence. 39.Lee gave evidence that the 2nd defendant had not received any report that the plaintiff had been injured at the site on 17 April 2003 until 24 April 2003 when the plaintiff submitted sick leave certificates and reported the accident. 40.Lee said that he took a statement from the plaintiff on 24 April 2003 (“the first statement”). According to what is recorded in the first statement, which was signed by the plaintiff after it had been read back to him, the plaintiff said that on 17 April 2003 he worked until 2.30 pm when he finished work and returned home. He said that he was not feeling well on 17 April 2003. He was suffering from waist pain and could not bend down so he requested to finish work early to take a rest. After he went home at about 4.30 pm he visited Dr Ho and returned home. Thereafter on 18 April 2003 he went to Shenzhen to visit relatives. He visited a bonesetter on 20 April 2003 and returned to Hong Kong on the same day. On 22 April 2003 he felt sharp waist pain and could not get up from bed and was taken by ambulance to QMH for treatment. He also said that on 15 April 2003 he had visited a Mr Chiu, a bonesetter, for waist pain. On 15 and 16 April 2003 he attended work as usual. 41.Lee said that having taken the first statement from the plaintiff he reported the matter to his superior. He was asked by his superior to take a more detailed statement from the plaintiff as the first statement was not detailed enough. He therefore met the plaintiff again on the following day 25 April 2003 and took a further statement from him (“the second statement”). 42.In the second statement the plaintiff described the work he had carried out on 15, 16 and 17 April 2003. According to the second statement, the plaintiff did not feel any discomfort after he finished work on 15 April 2003. On 16 April 2003 the plaintiff said that he felt pain after spraying paint on the metal moulds in the morning so he went to see Mr Chiu the bonesetter for waist and back pain. In the second statement he also described the work that he carried out on 17 April 2003. He felt pain in his waist and back and could not bend down. Then he requested for a break and went home. He visited Dr Ho that afternoon. 43.It is abundantly plain that nowhere in the first and second statements did the plaintiff ever complain about being injured in the first accident and the second accident on 17 April 2003. 44.The plaintiff gave evidence that he did inform Lee of the first and second accidents on 17 April 2003 when he submitted his sick leave certificates on 24 April 2003. He also said that about 10 odd days after he had submitted the sick leave certificates Lee showed him the first and second statements and asked him to sign the same. He denied that he had signed the statements on the dates as recorded. The plaintiff also said that he did not understand thoroughly the contents of the statements. He also alleged that Lee had told him that if he did not sign the statement the defendants would not report his work injury. As a result of this he said that he signed the statements. 45.I do not believe the plaintiff. I reject his evidence. I much prefer the evidence of Lee to the plaintiff’s evidence. 46.Although the plaintiff claimed to have only primary 3 education, I am satisfied that he understood the contents of the first and second statements and that the same were read back to him before he signed them as confirmation of the truth of the statements. 47.I also find that Lee did not force or induce the plaintiff to sign the statements. I would also observe that it was never put to Lee in cross-examination that he had induced the plaintiff to sign the statements. 48.I am satisfied that when Lee interviewed the plaintiff on 24 and 25 April 2003 what is recorded in the first and second statements is a narrative of the question and answer sessions that Lee had with the plaintiff. I am satisfied that everything recorded by Lee in the first and second statements is what the plaintiff had told him on 24 and 25 April 2003. 49.I also reject the plaintiff’s evidence that he was not interviewed by Lee on two occasions and that he only signed the statements about 10 days after 24 April 2003. I disbelieve him. 50.I am satisfied and find that the plaintiff did not mention the first and second accidents when interviewed by Lee on 24 and 25 April 2003. 51.I disbelieve the plaintiff’s evidence as to the occurrence of the first and second accidents on 17 April 2003. I am not satisfied that the first and the second accidents occurred as claimed by the plaintiff. 52.In the circumstances the plaintiff has failed to establish liability on the part of the defendants and his claim should be dismissed. Quantum 53.In the event that the matter goes elsewhere and it is found, contrary to my findings, that the first and second accidents did occur and that the plaintiff did sustain injuries as claimed, I go on to consider the quantum of damages. 54.The medical evidence is well documented and it is not necessary to repeat all of the evidence here. 55.Dr Ho’s physical examination of the plaintiff on 17 April 2003 showed no external injury to his body. Apart from muscular tightness and tenderness at lumbar region, there was no other positive finding. He was given one injection and four days’ medication. 56.Since 17 April 2003 the plaintiff has not returned to work. On his evidence he attempted to find work since late 2004 in various occupations including security guard and waiter in a restaurant but he was unsuccessful. 57.On 22 April 2003 he was admitted to QMH. According to the medical report of Dr Wu, on examination there was tenderness over his lumbar-sacral area. There was no neurological sign. X-ray revealed no fracture of his lumbar-sacral spine. 58.He was discharged the following day. He attended QMH again on 1 May 2003 for persistent low back pain. 59.According to the medical report of Dr Yeung Yeung of the Department of Orthopaedic Surgery dated 17 May 2004 the plaintiff was seen on 22 April 2003 for chronic low back pain. Physical and radiological examinations revealed unremarkable findings and he was diagnosed to have sprained back provisionally. It was also reported that he underwent 6 weeks of physiotherapy and occupational training. 60.It was also reported that sick leave was granted to the plaintiff up to 19 September 2003. 61.A joint orthopaedic examination was conducted on the plaintiff on 4 September 2006 by Dr Au Ka Kau (“Dr Au”), the plaintiff’s expert, and Dr Lee Po Chin (“Dr Lee”), the defendant’s expert. Pursuant to the order dated 17 October 2006 the joint medical report of Dr Au and Dr Lee dated 17 October 2006 was adduced as agreed evidence. 62.As is summarized in the joint medical report, the plaintiff was admitted to QMH because his back pain became severe. He was discharged from hospital one day after admission on 22 April 2003. The medical records as mentioned in the joint medical report were reviewed by the joint experts. 63.An MRI investigation of the plaintiff’s lumbar spine was carried out on 9 September 2005. As set out in the joint medical report the investigation showed:
64.At the time of the joint examination the plaintiff complained of constant pain over the thoraco-lumbar junction except when he was asleep. The pain increased with movement and prolonged sitting for half an hour to an hour. He also complained of bilateral trapezius pain, neck pain and dizziness. 65.After conducting the examination on the plaintiff, the joint experts’ diagnosis was back pain, bilateral trapezius pain and neck pain. 66.The joint experts opined that the plaintiff sustained soft tissue injury to his back during work. The plaintiff had a history of back pain before 17 April 2003. He also had pre-existing degenerative changes in the lumbar spine before 17 April 2003. They formed the view that the plaintiff was prone to developing back pain. Events such as lifting and bending of the back could also contribute or trigger the plaintiff’s back pain. 67.They were of the view that the conservative treatment including physiotherapy and occupational therapy was adequate and appropriate and that he had reached maximum medical improvement. 68.They also opined that the MRI investigation showed bulging disc at multiple levels and early degenerative changes in facet joints of the lumbar spine. They agreed that these were developmental in origin and not caused by the accidents. 69.At paragraph 8.5 of the joint medical report the joint experts said:
70.At paragraph 8.8 of the joint report the joint experts opined that orthopaedically there was no absolute contradiction for the plaintiff to return to his pre-accident job. However, as the occupational therapy report revealed that the plaintiff’s functional capacity was significantly below his job demand, Dr Au was of the view that the plaintiff should change to light duty job e.g. security guard, watchman, cashier etc. Dr Lee, however, was of the view that the plaintiff should be able to return to work in his pre-accident job. He was of the view that the plaintiff’s performance at the joint examination suggested that the tests which were dependent on subjective effort were unreliable. 71.Although Dr Lee was of the view that the plaintiff should be able to return to his pre-accident work, in my judgment, Dr Au’s view that he should change to light duty job should be adopted. 72.In Chan Kam Hoi v. Dragages et Travaus Publics [1998] 4 HKC 523 it was held that where a pre-existing condition was likely to lead to disability and loss in the absence of the injury for which a plaintiff was entitled to recover, the usual method of assessing the recoverable loss was to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings might also be reduced if the risks during the years concerned were sufficiently high. It was also held that when calculating the damages for future loss of earnings, a reduced multiplier was usually the most accurate way of giving effect to the findings on the medical evidence. Pain, suffering and loss of amenities 73.The plaintiff was 38 years old at the time of the accident. He is now 44 years old. 74.The plaintiff said that he used to enjoy activities such as walking, playing table tennis and going to the movies. He said that he is unable to do any of those activities after the accidents as he is suffering from persistent and disturbing pain. He said that his daily activities and his sexual activities are totally disrupted. According to him, he is unable to resume work since April 2003 and he has not been working since then. 75.According to the medical report dated 1 August 2007 from Dr Wat Chi Sum (“Dr Wat”) of the West Kowloon Psychiatric Centre, the plaintiff was referred to the Psychiatric Centre from the clinical psychologist of QMH. Dr Wat said that on examination of the plaintiff he found an anxious man. He had lived with his low back pain since 2003, according to the plaintiff. No definite psychotic or depressive features could be elicited. 76.Dr Wat made a diagnosis of mixed anxiety and depressive disorder. The mental problem was related to his physical problem, life difficulties and his expectation. 77.Dr Wat also said that he could not see any direct relationship between the mental problem and the injury. However, if, contrary to my findings, it be found that he did suffer the physical injuries as a result of the two accidents on 17 April 2003, it seems to me that his mental problem was caused by the accident. 78.The plaintiff was treated with antidepressants and anxiolytics for his sleep disturbance and mood disturbance. 79.The plaintiff claims the sum of $250,000 for pain, suffering and loss of amenities (“PSLA”). The defendants relied on Chan Chung Keung v Greenroll Limited t/a Conrad Hong Kong (HCPI 275/2005; Deputy High Court Judge Carlson, 20 December 2005 and submitted that the award for PSLA should not be more than $180,000. 80.The plaintiff has a history of back pain even before 17 April 2003. He had pre-existing degenerative changes in the lumbar spine before 17 April 2003. The joint orthopaedic experts formed the view that the plaintiff was prone to developing back pain because of his pre-existing conditions. 81.In my judgment a proper award for PSLA bearing in mind the plaintiff’s pre-existing conditions is the sum of $200,000. Pre-trial loss of earnings 82.It is common ground that the plaintiff earned $1,000 for each day that he worked at the time of the accident. The plaintiff’s case is that he worked on average 26 days per month. However, it is clear on the evidence of the wages record from 27 February 2003 to 17 April 2003 that the plaintiff earned no more than $20,000 per month. It was submitted on behalf of the defendants that he worked on average 20 days a month rather than 26 days. 83.The plaintiff gave evidence that at the site he was working at least 22 days a month whereas in other construction sites he was working 25 or 26 days a month. 84.It seems to me that it is clear from the wage records shortly prior to April 2003 that the plaintiff was earning about $20,000 per month. Although it was submitted on behalf of the plaintiff that the plaintiff’s general earning capacity prior to the accident on other sites was that he worked for about 25 to 26 days a month, it seems to me that as the wages record show, it is clear that at the time of the accident he was earning about $20,000 per month which meant that he was working an average of 20 days per month at $1,000 per day. That is the proper figure to adopt, in my view, as that was his pre-accident income. 85.The plaintiff’s pleaded case is on the assumption that he should have found work as a watchman by March 2005 earning $5,000 per month. In evidence the plaintiff said that he was unable to find alternative work despite attempts to do so. I am not satisfied that he has made reasonable and real efforts to find alternative work. I am of the view that as his sick leave expired on 27 March 2004 he ought to have found suitable alternative work about 3 months thereafter. 86.The plaintiff should be entitled to full loss from 17 April 2003 to 30 June 2004 (14.5 months) and partial loss from 1 July 2004 to trial in June 2009 (59 months). 87.There was no evidence as to how much a watchman would have earned. In my view, a watchman would have earned more than $5,000 per month as pleaded, probably a sum in the region of $7,000 per month which sum I shall adopt. 88.On the assumption that the plaintiff would have earned $7,000 per month as a watchman his partial loss from 1 July 2004 to trial in June 2009 would be $13,000 ($20,000 - $7,000) x 59 amounting to $767,000. 89.The pre-trial loss of earnings is :
The total pre-trial loss of $1,057,000 should be discounted by 33%, in my view, making an award of $708,190 for pre-trial loss of earnings. Pre-trial loss of MPF 90.The pre-trial loss of MPF would amount to $35,409.50 ($708,190 x 5%). Special damages 91.These have been agreed at $23,281. Future loss of earnings 92.A multiplier of 8 is claimed for the plaintiff in view of his pre-existing conditions. I am of the view that an appropriate multiplier should be 7. The loss of future earnings would be $13,000 x 12 x 7 amounting to $1,092,000. Future loss of MPF 93.The future loss of MPF would be $54,600 ($1,092,000 x 5%). Loss of earning capacity 94.As the plaintiff would suffer some handicap in the labour market I would make an award for loss of earning capacity. In my view, the appropriate award should be the sum of $84,000 being one year’s earnings at $7,000 per month, which should be discounted by 33% thereby making an award for loss of earning capacity in the sum of $56,280. Future medical expenses and travelling expenses 95.The sum of $5,000 is claimed for future medical expenses and $1,000 for future travelling expenses. There is no evidence in support of these items and I disallow these items. 96.Summary of quantum :
97.From the total sum of $2,169,760.50 must be deducted the ECC payment to the plaintiff of $231,567 leaving an award of $1,938,193.50 which are the damages that would have been awarded to the plaintiff had he succeeded in establishing liability against the defendants. 98.The plaintiff would also have been entitled to interest at 2% per annum for general damages from date of writ until judgment and interest at 4% per annum on the special damages from date of accident until judgment. Conclusion 99.As I have found against the plaintiff on the issue of liability, I dismiss the plaintiff’s claims against the defendants. 100.I also make an order nisi that :
Mr Ashok K. Sakhrani, instructed by Messrs T. Y. Lam & Co., for the Plaintiff Mr Daniel K K Chan, instructed by Messrs Winnie Mak, Chan & Yeung, for the 1st and 2nd Defendants |