Lam Chun Oi v. Asat Ltd

HCPI 115/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 115 OF 2008

----------------------

----------------------

Coram : Master de Souza in Court

Dates of Hearing: 19 and 20 March 2009

Date of Handing Down Judgment: 29 October 2009

----------------------

J U D G M E N T

----------------------

I.  INTRODUCTION

1.This is an assessment of damages following the entry of judgment with damages to be assessed under a consent order dated 11 March 2008.  The Plaintiff’s claim arose out of a work-related accident at her employer’s, the Defendant’s factory on 26 November 2005 when she apparently tripped and fell on her buttocks, hitting her head in the process.  She has not return to work since the date of the accident.

2.The Plaintiff, aged 48 when injured and 51 years old at the time of the hearing, hails from Fuzhou, China where she was educated up to junior high level one.  For 9 years prior to the accident, she was employed by the Defendant as a full-time factory worker.  Her duties over regular 8 hour shifts included making metal compartments of 15 cm x 25 cm and then placing them into ovens for treatment.  The metal compartments, each weighing about 10 lbs, were being moved by trolley within the factory when she met with the accident.

II.  The Plaintiff’s Injuries And Treatment

3.The Plaintiff was not entirely clear about the circumstances of her fall.  She said she must have kicked something causing her to fall backwards and hitting her buttocks and occipital in consequence.  Colleagues took her by taxi to the A&E Department of Yan Chai Hospital from where she was transferred on the same day to Princess Margaret Hospital (“PMH”).

4.She claimed she lost consciousness, an assertion completely at odds with the Discharge Slip dated 28 November 2005 from PMH.  The document in question in part reads: Acute care of head injury; occupational injury, fell on same level; minor head injury, no loss of consciousness, Glasgow Coma score 15; outcome on discharge: good recovery.  I find that though possibly stunned by the fall, the Plaintiff did not experience any loss of consciousness.

5.On admission to the neurosurgery department of PMH, the Plaintiff was nauseous without being sick.  No post-traumatic convulsion was seen.  She had spontaneous vision although diplopia was noted and was verbally responsive, being fully conscious and alert in space and time throughout.  There was no neurological deficit or any discernible brain injury.  Her vital signs were stable with the CT brain scan indicating no obvious fracture or intracranial haemorrhage.  She retained full and normal mobility of her limbs.  Radiological examinations of her cervical spine, lumbosacral spine, both shoulders and left hip revealed no obvious fracture or dislocation although the Plaintiff had complained of generalized bone pain during her brief stay at PMH.  The orthopaedic surgeon’s assessment was that there was no obvious abnormality.  There was no external wound.  Physiotherapy was advised and the Plaintiff was considered orthopaedically fit for discharge on 28 November 2005 with a prescription of analgesics.  It would therefore seem that the Plaintiff had sustained but a simple fall with no serious medical implications at the time.

6.During subsequent consultations at PMH, the Plaintiff complained of non-specific headaches but the doctors again detected no neurological impairment or deficit.  She was followed up in the orthopaedic out-patient clinic following discharge.

7.From the report of Dr. Wong Lok Yan of the Department of Orthopaedics & Traumatology, PMH dated 23 May 2007, the Plaintiff had been reassessed at the out-patient clinic.  She had complained of left gluteal and proximal thigh pain, with subjective weakness.  X-ray revealed lumbar spondylosis.  A similar examination of the pelvis showed no fracture.  MRI of the lumbar spine was done in May 2006, revealing mild lumbar spondylosis with mild spinal stenosis at L3/4 and L4/5.  As at 20 April 2007, she still complained of back pain radiating to the left leg. Pain relief was offered with analgesics.

8.For further management of her condition, the Plaintiff was referred by PMH for physiotherapy for 6 months, occupational therapy for 4 months and clinical psychology service, the last being detailed in the report of Miss Valda Cho, Clinical Psychologist at the Caritas Medical Centre.  Her assessment is dated 29 June 2007. 

9.Between 26 April 2006 and 2 August 2006, the Plaintiff paid 5 visits to the psychologist whose diagnosis was ‘Major Depressive Disorder’.  The report was brief offering no explanation for the assessment.  However, the psychologist did list the Plaintiff’s various complaints of back pain, headache, distress, sleeping difficulty, lack of motivation, loss of interest in previously enjoyable activities, marital disharmony and a sex life adversely affected by the pain.  The Plaintiff was enrolled for a 2 session relaxation skill training group course to better manage her stress and pain.  When she failed to satisfactorily complete the course, her file was closed.

10.The report dated 7 April 2008 from Dr. Lee wing-king, the senior medical officer and specialist in psychiatry at Kwai Chung Hospital (“KCH”) confirms the diagnosis of depression.  The Plaintiff had been a patient at KCH since 20 December 2007.  In January 2008 Dr. Lee observed that the Plaintiff appeared calm and settled with relevant and coherent speech.  No psychotic feature, suicidal idea, physical complaint or side effect were noted.  Cognitive function was intact.  The Plaintiff had informed the doctor that her appetite was normal and her sleep had improved.  Dr. Lee concluded his finding by noting that the Plaintiff was now mentally stable and her prognosis was stable.  Although he opined that psychiatric care was likely to be on a long term basis, permanent psychiatric injury was unlikely.

III.  Joint Medical Assessment

11.The Plaintiff was jointly assessed by two specialists in orthopaedics and traumatology, Dr. David Cheng (“Dr. Cheng”) and Dr. Johnson Lam (“Dr. Lam”).  Their report is dated 25 February 2008.

12.The Plaintiff’s then complaints were of constant back pain and left thigh pain.  The pain was said to be bearable with episodes of increased intensity.  The Plaintiff said her walking tolerance was about 15 minutes.  She also had headaches especially when exposed to wind.  Her memory was said to be poor particularly of recent events.

13.Both surgeons noted that the Plaintiff appeared to be in good health. She appeared inattentive and unable to concentrate, walked and sat normally, albeit a little slow.  She was unsteady standing on one leg, squatting and rising slowly and said to be in pain.  There was tenderness over the low back and left paraspinal area but no spasm was found.  Regarding the lumbar spine, marginal osteophytes was seen, suggestive of degenerative changes.  Both doctors opined that the degenerative changes were attributable to aging and normal wear and tear being totally unrelated to the accident.  As there is no evidence to suggest that the condition was exacerbated by the accident in any way, I shall ignore this condition when assessing quantum.

14.Dr. Cheng and Dr. Lam are in agreement that the Plaintiff suffered head injury in the accident.  They commented that there was a possibility she might have sustained contusion of the back at the same time.  As for the L3/4 disc extrusion latterly discovered with MRI, Dr. Lam opined that given the history of the injury and the subsequent clinical picture, it was likely to also have been caused by the accident in question.  He was also of the view that ‘considering the presence of residual pain with persistent tenderness in the back coupled with the disc extrusion, some residual pain would be expected’.

15.Both doctors agreed that the Plaintiff’s condition had stabilized and that she should be able to resume her pre-accident occupation as a factory worker.  Dr. Cheng added that he did not expect the Plaintiff’s daily activities to be significantly affected.  Dr. Lam however qualified his agreement with the observation that there would be some reduction in work efficiency and endurance due to back pain.  He also said that activities exerting heavy physical demand on her back such as prolonged standing, sitting or walking could increase pain and discomfort in the back.

16.Dr. Cheng opined that the Plaintiff’s orthopaedic state was only marginally compromised.  At the highest, it was a case of simple contusion to the back.  Dr. Cheng considered that sick leave of up to 3 or 4 months was reasonable whereas Dr. Lam endorsed the sick leave period given by the various treating doctors given the severity of the injury, the need for rehabilitation, and the pre-accident job demand.  Taking into account the agreed psychological overlay in her behaviour and the added dimension of depression that I have noted, I prefer Dr. Lam’s opinion in this regard.  Sick leave of some 20.2 months in duration was granted from accident to 1 August 2007.  I find this to have been appropriate and justified in the circumstances.

17.Both doctors agreed that the Plaintiff would require occasional symptomatic treatment but only on a need-to basis.

18.Counsel for the Plaintiff urged the court to accept the opinion of Dr. Lam and to prefer his where there was a divergence with Dr. Cheng’s.  I am so persuaded.  Dr. Lam dealt with every facet of the Plaintiff’s complaints.  He provided a reasonable and readily comprehensible explanation for the Plaintiff’s professed pain on movement of her spine and tenderness over the low back and paraspinal area.  I find his assessment to be more complete having taken on board the overall clinical presentation of the Plaintiff.

19.The Plaintiff still complains of back and thigh pain but it is said to be much reduced over time especially after acupuncture treatment.  She is less stressed and marital relationship has improved.  The occasional headache is of reduced intensity.  She is able to move around normally unaided.  The surveillance video captured at the end of May 2008 and early June 2008 showed her going about her daily activities, walking and sitting normally, going up and down steps and getting on a minibus.  These are not actions said to be beyond her present capability.  She has simply said that walking or sitting for more than an hour tired her out.  I do not consider that the surveillance evidence detracts from her case in any way.  I find the Plaintiff had been essentially truthful about her injuries, pain and suffering.  I also find that in the years post accident, her condition has also significantly improved.

IV.  Pain, Suffering and Loss of Amenities

20.A number of decisions were cited in submissions all of which I have read.  They necessarily turn on their own facts and therefore offer only a degree of assistance in determining the appropriate level of damages to be awarded under this head.  The cases cited by the Plaintiff included: Choi Ying Chi v Loyal Engineering Ltd, HCPI 53/2006; Li Tak v Everbest Logistics Co Ltd & anor, HCPI 425/2003; Lai Ching v Wong Chiu Kwai, HCPI 1192/1996; San-to Po Yuk v Wing Kwong Painting Co Ltd, HCPI 387/2002.  From these comparables, the Plaintiff urged an award of $400,000.

21.The Defendant countered with a figure of $60,000.  Counsel drew support for this low sum by reference to Lam Ha Fuk v Luen Hop Development Engineering Ltd & ors, HCPI 889/2006; Mohammed Ashaq v Royal Honour Industrial Ltd, DCPI 586/2007; Gurung Durga Bahadur v Kam Tai Construction Co Ltd & anor, HCPI 304/2004.

22.I am of the considered view that the quantum sought by the Plaintiff for her injuries is fair and just given the medical findings that I have accepted.  Her fall and initial diagnosis in November 2005, seemingly of no great moment at the time, turned out to have had a greater impact on her life as we have seen on the medical evidence.  Accordingly, I shall award the Plaintiff a sum of $400,000 under this head of claim.

V.  Pre-trial Loss of Earnings and MPF

23.In the months from November 2004 to October 2005, the Plaintiff was earning an agreed monthly salary of $8,336.28 working full-time.  Her health was reasonably good although she was diabetic and the degenerative changes affecting her spine were yet to manifest themselves.  But for the accident, her evidence was to the effect that she would like to have carried on working until the age of 65.  Whether that is probable or indeed possible would very much depend on her future health and financial situation, and the availability of continued employment at the Defendant’s manufacturing plant or elsewhere.  These are considerations incapable of precise ascertainment.

24.The Plaintiff has not returned to any form of employment after the accident.  Her employment with the Defendant was terminated on 1 August 2007.  It was her evidence that residual pain and her state of health brought about by the accident have made it impossible for her to resume working.  However, she did concede that there has been sufficient improvement in her situation for part-time work to be contemplated.  She ruled out returning to work full-time.  This I do not accept on the medical findings.

25.Dr. Cheng and Dr. Lam were both of the considered view that the Plaintiff was capable of working full-time at the time of their joint opinion.  The Plaintiff was on continuous sick leave from 26 November 2005 to 1 August 2007, a period of some 20.2 months.  I have previously indicated my preference for the evidence of Dr. Lam on matters where he diverged from Dr. Cheng’s findings.  Dr. Lam considered the sick leave period wholly justified, an opinion that finds favour with me.  Thereafter, the Plaintiff in my judgment should have made determined efforts to seek full-time work to mitigate her loss.  This she has not done.

26.For the 20.2 months of treatment and convalescence, her loss of wages may be calculated thus: $8,336.28 x 20.2 months =$168,392.86.  This sum I shall award together with an extra 5% to represent the loss of MPF for the period.  Loss of MPF stands at $168,392.86 x 5% or $8,419.64.

27.I am prepared to allow the Plaintiff no more than an extra 3 months after 1 August 2007 to secure alternative full-time employment.  That is not an unreasonable period to adopt in light of the medical evidence, particularly from Dr. Cheng and Dr. Lam.  Thereafter, there should be no further notional loss of earnings to trial.

28.Adopting the multiplicand of $8,336.28, an extra award is made for the 3-month grace period.  It comes to $25,008.84.  The loss of MPF on this figure is assessed at $1,250.44.

29.Thereafter, the Plaintiff should have suffered no further loss under this head of claim.  It was her evidence that she has made some effort to retrain as a security guard and to look for alternative part-time work.  I am not persuaded she has sought employment as diligently as she said or could have.

VI.  Post-trial Loss of Earnings and MPF

30.Given my determination above, the Plaintiff’s claim in this regard necessarily fails.  Were I to be wrong in so holding, I would adopt a multiplier of 7 as submitted by the Plaintiff.  As to the multiplicand, counsel suggested that her client working part-time might command a salary of $3,000 per month.  That is an assumption as no evidence or any statistics have been adduced.  However, that is not an entirely unrealistic wage to suggest given the background of the Plaintiff.  The multiplicand may therefore be assessed at $8,336.28 less $3,000 or $5,336.28.  Future loss of earnings and MPF can then be readily computed.

VII.  Loss of Earning Capacity

31.A modest sum of $18,000 is sought for impaired earning capacity on the authority of Chan Wai-tong v Li Ping-sum [1985] HKLR 176 and Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.

32.The Plaintiff’s injuries and residual pain though not inconsequential by any means are not especially serious.  On the medical evidence, they should have little impact on the Plaintiff’s ability to return to employment of the nature she undertook with no real difficulty prior to the accident.  An award is appropriate and justified if it is demonstrated that the Plaintiff has been seriously disadvantaged in the employment market by dint of her injuries and residual impairment.  There has to be some evidence she would indeed be substantially and unduly prejudiced when competing for work in the future, given her injuries.  I am not persuaded that such evidence exists.  The claim is accordingly rejected.

VIII.  Special Damages

33.I am prepared to allow the claim for medical expenses of $6,283.20 and travel costs principally by taxi of $4,070 in full.  These are reasonable in nature and in amount.  I am however not acceding to the request for the cost of a walking stick.  There does not appear to be a genuine need for one particularly on the surveillance evidence.  A very modest amount is sought for future medical expenses for headache and pain relief.  Dr. Cheng and Dr. Lam both considered that occasional symptomatic treatment on a need-to basis might be required.  Accordingly, the sum claimed of $2,550 is allowed.

IX.  Summary of Awards

(A)	Pain, Suffering and Loss of Amenities	$400,000.00
(B)	Pre-trial Loss of Earnings	$193,401.70
(C)	Pre-trial Loss of MPF	$9,670.08
(D)	Specials	$12,903.20
	Total	$615,974.98
	Less: ECC payment	($200,371.96)
	Net Award	$415,603.02

34.There will be judgment for the sum of $415,603.02.  There shall also be interest at 2% on the award for PSLA from the service of the writ to the date hereof and thereafter at judgment rate until full payment.  Special Damages shall attract interest at half judgment rate from the date of the accident to the date hereof and thereafter at judgment rate until payment.

35.The Plaintiff shall have her costs of the assessment against the Defendant on the High Court scale, taxed if not agreed with certificate for counsel.  The order is nisi with 14 days to apply.

Ms. J. Chao instructed by Messrs. Yip, Tse & Tang for Plaintiff.

Mr. V. Gidwani instructed by Messrs. Winnie Leung & Co. for Defendant.