Gurung Dhar Bahadur v. Po on Construction Engineering Ltd and Another

HCPI 303/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 303 OF 2010

BETWEEN

Coram : Before Master Marlene Ng in Chambers (open to the public)

Date of Hearing : 22 November 2011

Date of Handing Down Decision : 4 January 2012

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DECISION

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I.  BACKGROUND

1.On 26 November 2007, the Plaintiff was injured in an accident (“Accident”) at a construction site in North Point, Hong Kong (“Site”).  On 31 December 2009, the Plaintiff by his former solicitors commenced legal proceedings in the District Court (DCPI 2747/2009) to claim against the 1^st and 2^nd Defendants for damages for personal injuries and for other loss and damages as a result of the Accident.

2.The parties obtained a joint orthopaedic expert report dated 7 January 2010 (“Jt Ortho Report”) from Dr Chan Sai Keung (“Dr Chan”), the Plaintiff’s expert, and Dr Lee Po Chin (“Dr Lee”), the 1^st and 2^nd Defendants’ expert.

3.On 17 February 2010, the Plaintiff’s present solicitors filed Notice of Change of Solicitors in DCPI2747/2009.

4.On 15 April 2010, the Plaintiff filed his Statement of Claim, his Statement of Damages (“SOD”) and his Medical Reports.

5.By an ex parte summons supported by his own affirmation both filed on 15 April 2010, the Plaintiff applied to transfer DCPI 2747/2009 to the Court of First Instance.  The Plaintiff claimed that “[in] order to protect his interest against the imminent time bar date of 25 November 2010 for [his] common law claim, [his] former solicitors issued a generally indorsed Writ, Notice to Insurer and Notice of Checklist Review in the District Court”, but he was advised by his present solicitors that the available evidence suggested his claim would exceed HK$1,000,000.00 as per the SOD.

6.It is not easy to understand why the Plaintiff claimed the time bar would expire imminently when the Writ of Summons was issued almost 11 months before such expiry date.  So quite understandably, when on 20 April 2010 Master Lui directed that DCPI 2747/2009 be transferred to the Court of First Instance, he made no order as to costs of the application.

7.After the transfer, the Plaintiff served the Writ of Summons and the relevant pleadings.  On 1 September 2010, the 1^st and 2^nd Defendants filed their Defence denying liability.

8.In each of the SOD and the Revised Statement of Damages filed on 29 November 2010 (“RSOD”), the quantum of damages (with  4 alternatives for calculating the claim for loss of earnings) claimed by the Plaintiff was within the High Court jurisdiction, but the 1^st and 2^nd Defendants in their Answer filed on 23 December 2010 argued that any damages that might be awarded should be much reduced:

9.In support of his claim, the Plaintiff served his own witness statement as to fact dated 29 October 2010. The 1^st and 2^nd Defendants served the witness statement of Kwan Man Kwong (“Mr Kwan”) dated 12 October 2010 and disclosed a surveillance report dated 11 March 2010 (“Surveillance Report”) with recording of the Plaintiff (“Surveillance Recording”).

10.On 29 September 2010, Master J Wong ordered that the Jt Ortho Report be adduced at trial without oral evidence.  On 25 March 2011, Master A Chow granted leave to the Plaintiff to set the case down for trial in the running list by 31 May 2011 not to be warned before 4 July 2011.

11.On 7 April 2011, the Plaintiff applied by summons (“Statement Summons”) for leave to serve his 1^st supplemental witness statement in reply to Surveillance Report (“1^st Relief”) and his 2^nd supplemental witness statement to identify certain forged signatures on documents discovered by the 1^st and 2^nd Defendants (“2^nd Relief”).  On 31 May 2011, the Plaintiff withdrew his application for the 2^nd Relief in the Statement Summons. The application for the 1^st Relief in the Statement Summons was adjourned for argument to be heard on 21 July 2011.

12.In the meantime, the Plaintiff’s claim was settled pursuant to mediation held on 6 July 2011.  On 20 July 2011, the present proceedings were formally settled and concluded on a without admission of liability basis with the 1^st and 2^nd Defendants agreeing to pay the Plaintiff a sum of HK$621,906.39 inclusive of interest (ie HK$500,000.00 over and above the employees’ compensation received by the Plaintiff, “Settlement Sum”) in full and final settlement of the claim.  The Plaintiff gave credit for employees’ compensation he received in the sum of HK$121,906.39 and for sanctioned payments in the total sum of HK$370,000.00 to be paid out to the Director of Legal Aid, and the 1^st and 2^nd Defendants agreed to pay the remaining balance of the Settlement Sum in the sum of HK$130,000.00 within 28 days.

13.Pursuant to the settlement, the 1^st and 2^nd Defendants also agreed to pay the Plaintiff’s costs of the present proceedings to be taxed if not agreed.  However, the parties were unable to agree on the scale of costs; the Plaintiff insisted on High Court scale whilst the 1^st and 2^nd Defendants contended for District Court scale.

14.On 7 September 2011, the Plaintiff issued the present summons for an order that the 1^st and 2^nd Defendants do pay his costs of the present proceedings on High Court scale (“Summons”), and such Summons came before me for substantive hearing on 22 November 2011 (“Hearing”).

II.  PRELIMINARY MATTERS

15.I now turn to 12 preliminary matters which are essentially non-contentious for the purpose of the Summons.  First, both Mr Lau, solicitor for the Plaintiff, and Ms Chan, solicitor for the 1^st and 2^nd Defendants, confirmed that I could ignore the defences raised in the Defence and assume the 1^st and 2^nd Defendants were fully liable to the Plaintiff.

16.Secondly, the special loss and damages for incurred medical expenses, nourishing and tonic food, and travelling expenses were agreed at a total sum of HK$6,500.00.

17.Thirdly, Mr Lau and Ms Chan agreed that at the time of the Accident the Plaintiff was employed as a construction site general labourer notwithstanding the Plaintiff’s description of his pre-Accident work history in his witness statement (see paragraphs 43-47 below).

18.Fourthly, notwithstanding the parties’ respective case as described in paragraphs 47-48 below, the Plaintiff’s pre-Accident daily wage and monthly earnings were agreed at HK$500.00 and HK$11,000.00 respectively (ie on average the Plaintiff worked for about 22 days per month at the time of the Accident).

19.Fifthly, assuming that the notional date of trial was 26 November 2011 (according to the SOD) or 25 November 2011 (according to the RSOD), the Plaintiff contended that the appropriate multiplier for lost years in calculating post-trial loss of earnings was 9.8 (according to the SOD and Mr Lau’s written submissions) or 10 (according to the RSOD).  Ms Chan in her written submissions submitted it should be 10. In light of Ms Chan’s concession, I adopt 10 as the relevant multiplier.

20.Sixthly, there was no dispute that the relevant sick leave period was from 27 November 2007 to 22 September 2008 even though (a) the Plaintiff in his witness statement claimed that a private doctor Dr Chin Kim-fai David (“Dr Chin”) granted him further sick leave of 11 days from 15-25 November 2008 (see paragraph 62 below), and (b) the Jt Ortho Report stated that the Plaintiff’s sick leave assessed by the Medical Assessment Board (“MAB”) in the Form 9 dated 9 March 2009 (“Form 9”) covered the periods from 27 November 2007 to 22 September 2008 and 15 to 18 November 2008 (see paragraph 78 below).  Mr Lau in his written submissions suggested that the sick leave period was 9.83 months, but Ms Chan in her written submissions was prepared to round up the period to 10 months.  In light of Ms Chan’s concession, I shall adopt 10 months for the relevant sick leave period.

21.Seventhly, Mr Lau confirmed that Plaintiff would only rely on the 1^st and 3^rd alternatives (and not the 2^nd and 4^th alternatives) pleaded in the SOD and the RSOD for calculating loss of earnings (see paragraph 8 above).

22.Eighthly, Mr Lau confirmed that the Plaintiff would not rely on any claim for loss of chance of promotion in the sum of HK$282,240.00 as pleaded in the RSOD.

23.Ninthly, notwithstanding the fact that the SOD and the RSOD made no reference to any employees’ compensation received by the Plaintiff, Mr Lau confirmed that the Plaintiff did receive employees’ compensation in the sum of HK$121,906.00, and that such compensation should be taken into account in assessing what amounted to reasonable damages.

24.Tenthly, Mr Lau and Ms Chan agreed that I need not be concerned with the draft 1^st supplemental witness statement of the Plaintiff served for the purpose of seeking the 1^st Relief in the Statement Summons, and it was not placed before me for the purpose of the Summons at the Hearing.

25.Eleventhly, the Surveillance Recording was also not placed before me for the purpose of the Summons at the Hearing, and I am therefore not concerned with such recording.  However, the Surveillance Report was part of the materials before me for the purpose of the Summons.

26.Twelfthly, Mr Lau abandoned reliance on the alleged authorities in items 3-4 of his List of Authorities since he merely produced copy court orders without any written court decisions or rulings that explained the basis for those orders.

27.On a separate note, Ms Chan in her written submissions suggested that the bill of costs by the Plaintiff’s former solicitors annexed to the letter from the Plaintiff’s present solicitors to the 1^st and 2^nd Defendants’ solicitors dated 9 September 2011 and prepared on the basis of the District Court scale of costs lent weight to her contention that the applicable scale of costs under the Summons should be the District Court one.

28.Neither such bill of costs nor such letter was placed before me for the purpose of the Summons.  Further, when the Plaintiff’s former solicitors ceased to act in the present proceedings, the proceedings were still in the District Court, so they could hardly have claimed costs on the High Court scale.  In my view, such bill of costs would not lend weight to any reasoned determination of the Summons as to the applicable scale of costs.

III.  LEGAL PRINCIPLES

29.I rely on the relevant legal principles which I have set out in paragraphs 9-10 of my decision in Lee Yau Wai v Yeung Kam Wing HCPI 281/2009 (unreported, 29 March 2011).

30.In Lai Ki v B+B Construction Company Limited & others [2003] 3 HKLRD 192, 200, Seagroatt J confirmed and adopted the test as stated by Glyn-Jones J in Hopkins v Rees & Kirby Ltd [1959] 1 WLR 740, 742 as follows:

“Putting myself as far as I can, in the position of the plaintiff at the time when he issued that writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdiction limit] excluding any reduction for contributory negligence?”

Seagroatt J further observed at p.197 that “[the] acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the [District] Court jurisdiction?” (see also Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited HCPI 77/2007, Suffiad J (unreported, 9 September 2008) at para.14).

31.In Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002 (unreported, 7 May 2004), DHCJ Jat SC held that the test was an objective one, ie whether it would be obvious to a reasonable plaintiff or his legal adviser that the case was a District Court rather than High Court case.  The subjective intent of the plaintiff and his legal adviser would not normally be relevant.  The learned judge recognised that one must not just look at what was claimed in the statement of damages, and one should not look at the eventual settlement amount.  After all, the relevant time for consideration was the time when the writ was issued, and there might be all kinds of reasons why a plaintiff might wish to accept a sum lower than what his claim might be considered worth in order to settle the claim

32.Ms Chan drew my attention to a decision of Suffiad J in O Lai Kam v Law Tin Wan trading as (天金工程公司) & ors HCPI 777/2005 (unreported, 21 December 2006).  In that case, in considering the appropriate scale of costs, the only difference between the parties concerned loss of earnings.  The plaintiff contended he was only able to secure contract work after expiry of his sick leave, so he claimed for full loss of earnings during his sick leave and thereafter for partial loss of earnings based on the difference between his pre-accident earnings and what he was able to earn as a contract worker.  The defendants contended that the plaintiff’s own expert suggested he could resume his pre-accident work as a plumber with limitation in carrying heavy pipes/objects in excess of 20kg. There being no evidence that the plaintiff attempted to secure employment as a plumber or as a maintenance technician for building estates after the accident or that the work of a plumber necessarily involved carrying weights over 20kg, the learned judge declined to accede to the plaintiff’s method of calculating his loss of earnings.

33.Suffiad J said at paras.28-30 as follows:

“ 28. Furthermore, looking at this case as a whole, the fact that the plaintiff has seen fit to accept in settlement the net amount of $250,000 (after deducting the amount of employee’s compensation) would lend much weight to the submission by the defendant as to the likely outcome of this case if it went to a full trial on quantum.

29. In this respect, all that I have been told by the plaintiff’s counsel as to why the plaintiff had seen fit to accept only such a small amount by way of settlement (if his contention that the plaintiff had a good prospect of recovering an amount in excess of $1 million even after credit for the employee’s compensation had been given) was that it was a decision of the plaintiff against the legal advice given to him. No satisfactory reason had therefore been advanced as to the acceptance of the settlement by the plaintiff.

30.     Litigants and their solicitors should be well aware that although the acid test for deciding the scale of costs to apply (already stated above in this Ruling) makes no mention of the settlement amount, in the absence of any satisfactory explanation, the amount settled is still one of the factors which the court can take into account in determining whether there was a reasonable prospect of the plaintiff to recover an amount in excess of the District Court jurisdiction in any given case. Needless to say the circumstances in each case may vary depending on its facts.”

34.Relying on O Lai Kam, Ms Chan argued that the Plaintiff owed this court a satisfactory explanation as to why he settled the claim in the present proceedings for the Settlement Sum which was substantially less than the highest alternative in the SOD (ie HK$1,780,045.82 with interest) or in the RSOD (ie HK$2,721,010.47 with interest).

35.However, it is useful at this stage to refer to another decision of Suffiad J handed down a few months before O Lai Kam.  In Wong Choi Fung v Fung Kai Public School operating as Fung Kai Care and Attention Home for the Elderly HCPI 534/2004 (unreported, 14 February 2006), Suffiad J said as follows:

“40. Having said that, it would appear that the dispute from the defendant as to High Court scale of costs arose because of the amount at which the plaintiff settled this case.

41. Whilst I agree that is one factor to be taken into consideration, however, at the best of times when a case is settled it is almost impossible for the court to go behind and seek out the reasons or the factors underlying the settlement without speculation,

42. In this context, the words of Deputy Judge Jat in the case of Wong Chi Ho Jacky v. Poon Yuk Shan, HCPI 910/2002 ought to be kept in mind in dealing with these situations when he said:

“Mr. Clement, while accepting that the Court must not stop at the claim as framed in the Schedule of Damages, submitted that one cannot look at the eventual settlement amount. In my view that must be right since the relevant time for consideration was the time when the writ was issued. Furthermore, there might be all kind of reasons why a plaintiff might wish to accept a sum lower, even much lower, than what his claim might be considered to be worth in order to settle the claim.””

36.Mr Lau in his written submissions stated that the Plaintiff’s willingness to settle the present proceedings for the Settlement Sum “is one of business decision in the circumstances which does not reflect the reasonable prospect whether [the Plaintiff] would be awarded a sum above the jurisdiction of the District Court ……” I am unable to accept such assertion by way of written submissions without any supporting affidavit evidence before me. However, nothing material turns on this in light of my views in paragraph 37-38 below.

37.Looking at the above authorities as a whole, I am not persuaded that the Plaintiff in contending for the High Court scale of costs had any duty to explain why he accepted the Settlement Sum in full and final settlement of his claim.  Plainly, the Plaintiff’s reasons for doing so were matters covered by legal professional privilege, so the 1^st and 2^nd Defendants’ criticism of his failure to expose such reasons was impermissible and flied against the principles in Wong Chi Ho Jacky.  As explained by Suffiad J in Wong Choi Fung, it was almost impossible to go behind and seek out the reasons or factors underlying the settlement without speculation.

38.But there is no denying the fact that the present proceedings were settled and resolved by the 1^st and 2^nd Defendants’ agreement to pay the Settlement Sum, ie an amount within the District Court jurisdiction. Whilst it is a factor to be taken into consideration, it cannot be determinative.  After all, (a) the relevant time for consideration was when the Writ of Summons was issued, (b) there might have been all kinds of reasons why the Plaintiff wished to accept the Settlement Sum, and (c) the acid test for determining the appropriate scale of costs adopted an objective approach and was not based on the Plaintiff’s subjective reasons for settling the claim.

39.This brings me nicely to Mr Lau’s written submissions suggesting that the appropriate time to consider whether the Plaintiff had a reasonable prospect in establishing a claim for damages in excess of the District Court jurisdiction was when the case was transferred from the District Court to the Court of First Instance.  This does not sit well with the above authorities, and at the Hearing Mr Lau abandoned such stance and conceded that the relevant time for consideration was when the Writ of Summons was issued.  In any event, in light of my conclusions below, it matters not in the present case whether the relevant time for consideration was at the time of issuance of the Writ of Summons or transfer of the present proceedings from the District Court to the Court of First Instance.

40.I now turn to the Plaintiff’s personal/medical history, which is a constant feature that underlies Ms Chan’s submissions that the relevant scale of costs was the District Court one.

IV.  PLAINTIFF’S PERSONAL BACKGROUND

41.The Plaintiff was born in Hong Kong, but grew up and received education up to secondary school level (according to the Plaintiff’s witness statement) or primary 5 level (according to the Jt Ortho Report) in Nepal.  He could speak Nepalese but very little English and Cantonese.  He returned to Hong Kong in October 1996 and applied for an identity card to look for a job. Since 1998 until the Accident in 2007, he worked at construction sites.

42.The Plaintiff claimed that prior to the Accident he enjoyed good health and never had any lower back injuries.  He smoked and drank only occasionally.  He used to play football twice a week and enjoyed Nepalese dancing during festivals. He was well-built and could cope with his job duties.

V.  PLAINTIFF’S PRE-ACCIDENT WORK HISTORY

43.The Plaintiff’s first job in Hong Kong was with BCJ Joint Venture at a construction site at Chek Lap Kok.  As a general labourer he carried out manual work, such as shovelling, concreting and lifting/carrying construction materials.  He was paid a daily wage of HK$500.00 and worked for 26 days per month.  He resigned after about 8 months.

44.Immediately after his resignation, the Plaintiff joined Tin Hau Steel Fixing Company as a bar bending helper to assist the senior steel bender at a construction site at Chek Lap Kok.  He was paid a daily wage of HK$550.00, and worked for the company for about 10 months until his employment was terminated upon completion of the project.

45.After being unemployed for a couple of months, the Plaintiff joined Gurkha Construction Limited as a formwork worker responsible for building and dismantling metal formworks for building construction.  He was paid a daily wage of HK$500.00, and worked for the company for about 3 years until his employment was terminated upon completion of the project.

46.Thereafter, the Plaintiff worked for Hyundai Construction Company at a construction site at Tung Chung.  As a general labourer, he carried out manual work such as shovelling, concreting, clearing concrete debris and lifting/carrying construction materials.  He was paid a daily wage of HK$450.00, and worked for the company for about 3 years until his employment was terminated upon completion of the project.

47.The Plaintiff then joined the 1^st Defendant as a formwork worker at a construction site in Kwun Tong responsible for building and dismantling metal formworks.  He was paid a daily wage of HK$500.00 and worked at the site for about 6 months. In his witness statement, the Plaintiff claimed he was transferred to work at the Site for the 1^st Defendant (being a sub-contractor to the 2^nd Defendant as main contractor), and his main duties were heavy manual work of erecting and/or dismantling metal formworks at the Site.  His work required frequent ladder-climbing, back-bending and squatting, and he was also required to lift/carry heavy metal formwork up to 60kg in weight by himself alone.  His usual working hours were from 8am to 6pm.  He worked for 26 days per month at a daily wage of HK$500.00, so his monthly income was about HK$13,000.00.

48.Although Mr Kwan in his witness statement alleged that the Plaintiff was not employed by the 1^st Defendant but by Gurung Om Prasad as the 1^st Defendant’s sub-contractor (which allegation I am not concerned with for the purpose of the Summons), he did not dispute that the Plaintiff’s daily wage was HK$500.00.  He claimed that according to the Plaintiff’s wage receipts dated 20 November and 10 December 2007, in October and November 2007 the Plaintiff worked for 13 and 22 days respectively and his monthly income was HK$6,500.00 and HK$11,000.00 respectively.

VI.  ACCIDENT

49.The Plaintiff claimed he was 48 years old at the time of the Accident.  On the date of the Accident, he was instructed to dismantle metal formworks with other co-workers.  Whilst he was bending down to lift a formwork from the ground, a heavy metal stand weighing around 20-25kg and erected vertically to support the false ceiling formwork suddenly fell and hit his back, and he thereby sustained back injury.

VII.  INJURIES AND TREATMENT

50.Immediately after the Accident, the Plaintiff claimed his lower back was very painful.  His colleague helped him to his feet, and he managed to walk after 20 minutes.  He could not continue to work, and his colleague helped him to the site safety office to report the Accident and his injuries. But the office was closed, and he went by taxi to the accident and emergency department (“AED”) of Ruttonjee and Tang Siu Kin Hospitals (“RTSKH”) for treatment.

51.Physical examination of the Plaintiff at RTSKH’s AED showed tenderness over right/middle region of his back.  There was no open wound. X-ray of chest/back showed no fracture.  He was discharged with analgesics. But his back pain persisted and he re-attended RTSKH several times. Repeat x-ray of the back performed on 15 December 2007 revealed fracture of right transverse processes of the lumbar spine (L1, L2 and L3), and the Plaintiff was referred for physiotherapy treatment.

52.On 19 January 2008, he was admitted to RTSKH’s orthopaedic ward for persistent pain.  A soft lumbar corset was given to him for pain control, and physiotherapy was arranged.  He was discharged after 7 days on 24 January 2008 when it was noted that he would walk and there was no neurological deficit of his lower limbs.  The Plaintiff attended orthopaedic follow up at RTSKH on 26 February, 8 April, 27 May and 10 July 2008.  At his last follow up on 10 July 2008 he could walk independently, and he was advised to attend the MAB for assessment of degree of permanent disability.

53.The Plaintiff’s last attendance at RTSKH’s AED was on 17 August 2008 when he was advised to attend Violet Peel General Out-patient Clinic (“GOPC”) for follow up.  He first attended GOPC on 19 August 2008 complaining of persistent pain over mid- and lower back with radiation to his thighs.  Physical examination showed stiff thoracic and lumbosacral musculature with limited movement ranges.  Reflexes and motor power of the lower limbs were normal.  The Plaintiff requested extension of sick leave pending assessment by the MAB on 22 September 2008.  He was given conservative treatment and discharged with sick leave until the date of the MAB assessment.

54.Upon referral by RTSKH’s orthopaedic department in January 2008, the Plaintiff received physiotherapy and occupational therapy for 7-8 months at RTSKH.  His physiotherapy treatment started on 6 February 2008.

55.At the initial assessment on 6 February 2008, the Plaintiff complained of pain at the low back referring down to right knee region and being aggravated by walking for more than 15 minutes and prolonged supine lying for ½ hour.  Cough impulse was painful. He complained that his pain also disturbed his sleep at night when he changed his sleeping posture. His pain rating scale was 6/10.  As for functional limitation, he was unable to lift heavy weight or reach forward to put on socks/shoes.  Palpation revealed tenderness at right paravertebral region at L1-L5 level of the spine.  Straight leg raising (“SLR”) test was 70° on the left and 60° on the right with low back pain elicited, but neurological tests were negative.  Active range of movement of the trunk was as follows:

Flexion	Finger touching 2 inches below knee with pain elicited
Extension	¾ of range with pain elicited
Bilateral side flexion	Full range with pain elicited
Bilateral rotation	Nearly full range with pain elicited

56.Physiotherapy treatment with ultra-sound and hot pack to low back, back care and home back exercise regime was given on 6 February 2008.  Inferential therapy for pain relief was added on 20 February 2008, and exercise training with bike was added on 27 February 2008.  Upper limb strengthening exercise was incorporated into the re-conditioning programme on 11 March 2008.  The Plaintiff’s condition improved slowly.

57.According to the physiotherapy progress/report form dated 1 April 2008, the Plaintiff completed 10 sessions of physiotherapy and reported 40-45% overall subjective improvement.  He complained of pain at the lumbar region sometimes radiating to the right thigh.  Tenderness at right paravertebral region of the lumbar spine was decreased on palpation.  For functional limitation, his pain was aggravated by lifting heavy weight and putting on socks/shoes.  Active range of movement of the trunk improved as follows:

Flexion	Finger touching to mid-shin with pain elicited
Extension	¾ of range with pain elicited
Bilateral side flexion	Full range with pain elicited (left) and full range with mild low back pain elicited (right)
Bilateral rotation	Full range with mild low back pain elicited (left) and full range and pain free (right)

58.Further physiotherapy treatment continued.  The Plaintiff’s condition improved slowly, and he claimed there was about 50% overall improvement on 27 May 2008.  Another assessment was done.  The tenderness at right paravertebral region of the lumbar spine was further decreased on palpation.  For the functional aspect, the Plaintiff claimed there was less difficulty in putting on socks/shoes and lifting weight of less than 15kg.  The examination revealed active range of movement as follows:

Flexion	Finger touching to mid-shin with mild pain elicited
Extension	¾ of range with mild pain elicited
Bilateral side flexion	Full range and pain free
Bilateral rotation	Full range with mild low back pain elicited (left) and full range and pain free (right)

59.On 27 May 2008, the doctor approved the physiotherapist’s recommendation of a further course of back rehabilitation training.  A course of functional re-conditioning training was arranged from 16 June to 18 August 2008.

60.On 16 June 2008, the Plaintiff’s maxim static lift was 9.8kg from floor to waist level and repetitive weight lifting from floor to waist was 3kg maintained for less than 1 minute.  On 18 August 2008, the Plaintiff was discharged from physiotherapy after a total of 27 sessions.  Home exercise programme was arranged, and he could manage them well.  Re-assessment done on 18 August 2008 showed (a) subjective improvement of 50% with numeric pain rating scale of 5/10, (b) walking tolerance was ½ hour, (c) sitting tolerance was about 1½ hours, (d) mild tenderness over right paraspinal region of the lumbar spine, (d) SLR test was negative on the left and 70° on the right with mild right leg pain, (e) maximum static lift was 19.4kg from floor to waist level, (e) repetitive weight lifting was 9.7kg maintained for less than 1 minute, and (f) active range of trunk movement was as follows:

Flexion	Finger touching 3 inches above ankle with mild pain elicited
Extension	¾ of range with mild pain elicited
Bilateral side flexion	Full range and pain free
Bilateral rotation	Full range and pain free

61.According to the Certificate of Compensation Assessment dated 13 October 2008, the MAB assessed the Plaintiff’s sick leave at 291 days from 27 November 2007 to 22 September 2008 and his loss of earning capacity at 1%.

62.According to the Jt Ortho Report dated 7 January 2010, the Plaintiff’s last follow up was in February/March 2009 and his next follow up would be on 18 December 2009.  Afterwards, the Plaintiff visited RTSKH’s AED and GOPC a few times and a private doctor Dr Chin twice.  Dr Chim granted the Plaintiff sick leave for 11 days from 15-25 November 2008.

VIII.  PLAINTIFF’S COMPLAINTS

63.When he was examined by Drs Chan and Lee (“Experts”) on 7 December 2009, the Plaintiff complained of the following:

(a)  difficulty in walking in that he felt he could not control his legs properly, his gait was unsteady and he could not walk straight;

(b)  intermittent back pain caused by low temperature or activities such as walking for 15 minutes, walking quickly, raising his right leg and/or standing for 10-15 minutes, and sharp pain radiating to his right leg;

(c)   right leg numbness sometimes.

The Plaintiff claimed he needed to take 3-4 painkillers a week for his back pain.  He could perform all self-care and hygiene activities, but had difficulty in bending down due to back pain, eg putting on trousers or tightening shoelaces.

64.In his witness statement dated 29 October 2010, the Plaintiff claimed that due to injury to his back as a result of the Accident he still had persistent pain and stiffness in his lower back which radiated bilaterally down his thighs and was aggravated by prolonged walking, sitting or standing.  He experienced limitation in movement and in walking tolerance with difficulty in climbing up and down stairs for which hand support was required.  The Plaintiff claimed his lifting capacity was about 19lbs, and he still needed to take painkillers twice a week to ease his pain.  As a result of his back injury with residual pain and impairment, he could not pursue his sports and dancing activity.

IX.  POST-ACCIDENT WORK

65.According to the Plaintiff’s witness statement, “[owing] to the [Accident] and disability, [he] was unable to return to [his] pre-injury job”.  He secured work as a full-time cleaner at a public market for World Environmental Services Limited since October 2009 and for Li Hing Cleaning Services Co Ltd since July 2010 earning about HK$5,800.00 per month.

66.The Plaintiff disclosed statistics on average monthly salaries of “cleaner (general) (in pest control and cleaning services)” for inter alia March 2009 at HK$5,269.00.

X.  JT ORTHO REPORT

67.When the Plaintiff was examined by the Experts on 7 December 2009, he was found to be obese with body weight of 88kgs and body mass index of 33.  He was wearing a soft lumbar corset which was not serving its purpose because of his central obesity.  The Plaintiff sat and walked normally.  He could stand on tiptoes by weight bearing on the left, but could not walk on toes and could not perform toe walk with his right leg.  He could walk on heels and perform single-legged stand on either leg, but single leg stand on his right leg was unsteady.  He could perform almost full squat, but complained of right knee and back pain.

68.The Experts examined the Plaintiff’s back and lower limbs. For his back, there was tenderness over (a) midline of thoracolumbar and lumbosacral junctions, (b) paraspinal muscles on either side at these levels, and (c) right sacral-iliac joint, but no muscle spasm over the paraspinal muscles. SLR in supine position was 20° and 60° on the right and left respectively, and the Plaintiff complained during the test.  But sitting SLR test was 80° on either side. There was limitation of lumbar spinal movement, ie flexion 50° (normal 60+°), extension 20° (normal 25°), lateral flexion to the right 30° (normal 25°), and lateral flexion to the left 25° (normal 25°).  Downward pressure over the Plaintiff’s skull or shoulder, passive rotation of shoulder and pelvis on the same plane, and swinging of right upper limb all caused back pain.

69.For the lower limbs, physical examination revealed that the girth of the right thigh and calf was each 1.5cm thicker than those on the left, ie there was no muscle wasting of the lower limbs.  Right and left hip flexion was 90° and 120° respectively, but the Plaintiff complained of hip pain upon hip flexion on the correspondent sides.  No neurological deficit could be elicited. The dorsiflexion of the right ankle was weakened (grade 4 out of 5), but there was cogwheel weakness of plantar flexion and extension of his right big toe (grade 4 out of 5) indicating that the Plaintiff was not using full effort, but otherwise the motor power of his lower limbs was normal.  There was subjective 15% and 10% decrease in sensation over his right sole and the rest of his right lower limb respectively, but such sensory deficit did not correspond to any specific distribution of the nerve root.  The ankle and knee jerks were normal.  Although the Plaintiff showed reduced weight-bearing on his right lower limb during the examination, his right thigh and calf girths were bigger than those of the contralateral side indicating he should have used his right lower limb normally.

70.Radiographic examination showed no evidence of compression deformity or sublaxation of lumbar vertebrae.  Small anterior marginal lipping was present over multiple lumbar vertebrae.  Decrease of normal lordosis of lumbar spine was noted, but the pedicles and disc spaces appeared intact and there was no evidence of bony erosion or sublaxation.  In short, x-ray showed minimal degenerative change of the lumbar spine and healed fracture of the right transverse processes of L1, L2 and L3.

71.The Experts’ diagnosis was “[back] pain status post fracture transverse process of [the Plaintiff’s] lumbar spine (L1, L2 and L3)”.  Dr Chan opined that the Plaintiff’s back impairment was compatible with the injury he sustained during the Accident.  Dr Lee also agreed that the mechanism of the injury described by the Plaintiff was consistent with direct contusion of his back.

72.The Experts opined that the likely reason as to why the initial x-ray did not reveal the facture was because the facture was minimally displaced and its view was obscured by bowel gas and trunkal obesity.  When there was bone resorption at the fracture site, which was a normal process of bone fracture healing, the fracture gap widened and became more obvious in the repeat x-ray.  The Experts agreed that unless there had been a further injury, the transverse process fracture of the Plaintiff’s lumbar spine was compatible with the mechanism of the Accident.

73.Inorganic signs were noted during the examination, eg (a) sitting SLR test results were better, (b) downward pressure over skull and shoulder and passive rotation of shoulder and pelvis in the same plane caused increase in back pain, (c) swinging of right shoulder caused back pain, and (d) sensory deficit of right lower limb did not correspond to any specific distribution of the nerve root.  Such inorganic signs could not be explained by the Plaintiff’s injury sustained as a result of the Accident or by normal anatomy and pathologies of his injury.

74.Dr Chan opined that these inorganic signs represented the Plaintiff’s body language conveying to the Experts that his back was still significantly painful, but Dr Chan accepted that some evaluator might interpret these signs as symptom magnification.  Indeed, Dr Lee opined that these inorganic signs reflected symptom magnification, and further opined that they raised doubt as to the validity of the Plaintiff’s complaints.

75.Dr Chan opined that the Plaintiff’s residual back pain could result from residual scarring after healing of the fracture of the transverse processes.  Dr Lee opined that for healed and possibly non-displaced fracture of the transverse processes the residual pain should be mild to minimal and should not affect function.  The absence of muscle spasm at the examination suggested that the residual pain was likely to be mild or minimal.

76.Both Experts agreed that the Plaintiff had received appropriate treatment and that he had reached maximum medical treatment. Dr Chan opined that the impairment would be permanent with on and off exacerbation of symptoms upon exertion, and during such exacerbation rest and painkillers would help ease his symptoms.  Dr Lee opined that the residual pain should be mild to minimal, and should only occur during prolonged heavy exertion using the back.  Further treatment apart from back and abdominal exercises would not be necessary.  Drs Chan and Lee assessed the Plaintiff’s total body impairment to be 3% and 2% respectively.

77.As regards the Plaintiff’s employability, Dr Chan opined that “in the present degree of impairment, [the Plaintiff] should be able to return to his previous job as general labourer in construction sites but with reduction in efficiency because of the residual back pain”.  Dr Lee also opined that the Plaintiff should be able to return to work as a general labourer in construction sites but with only very mild reduction in work efficiency.

78.Dr Chan endorsed sick leave for the period from 27 November 2007 to 22 September 2008 and from 15 to 18 November 2008 assessed by the MAB in the Form 9.  Dr Lee opined that sick leave from 27 November 2007 to 22 September 2008 was sufficient since the Plaintiff finished his physiotherapy treatment in mid-August 2008.

XI.  SURVEILLANCE REPORT

79.According to the Surveillance Report, the Plaintiff was under observation on 7 and 28 December 2009 and 25 February 2010.

80.The Surveillance Report stated that on 7 December 2009, the Plaintiff was observed to enter and later leave the building where Dr Chan’s clinic was located.  He was said to walk naturally without holding onto the handrail when descending and ascending the staircase at MTR stations.  He walked from his home to Southorn Playground where he sat for a short while before returning home to bring a box to Southorn Playground.  He again sat for a while, stood up to do some stretching exercise, and then walked to the tram station at Johnston Road.  “He leaned against a column”, and boarded a tram to meet up with a female. Later they alighted from the tram, made some purchase at a convenience store, and entered a building.  After 2 hours, the Plaintiff and the female went to Wan Chai Market to buy some food.  They boarded a tram and the Plaintiff alighted at Johnston Road with the food.  He went to Southorn Playground, chatted with a friend there and then returned home.  According to the Surveillance Report, the Plaintiff was observed to walk and sit naturally.

81.According to the Surveillance Report, the Plaintiff was observed to return home wearing sports shoes and carrying a black plastic bag on 28 December 2009.  On 25 February 2010, the Plaintiff was observed arriving at RTSKH’s orthopaedic clinic. He did not hold onto the handrail when ascending or descending staircase.

XII.  PARTIES’ RESPECTIVE CASE ON PRE-TRIAL LOSS OF EARNINGS

82.For the purpose of the Summons, there was no dispute that at the time of the Accident the Plaintiff was employed as a general labourer with average monthly earnings of HK$11,000.00, and that the relevant sick leave period was from 27 November to 22 September 2008 (see paragraphs 18 and 20 above).

83.The Plaintiff claimed that but for the Accident he would have continued to work on the same basis at construction sites as he did prior to the Accident.  After expiry of his sick leave, he was unable to resume his pre-Accident work due to his injuries and disabilities.  Mr Lau’s written submissions went further to state that “notwithstanding efforts to seek employment” the Plaintiff was unable to resume any gainful employment due to his injuries until 1 October 2009 when he secured work as a cleaning worker at a public market.  Mr Lau further submitted that the Plaintiff was likely to suffer from recurrent back pain and “[would] need to reduce the amount of heavy lifting and physical exertion should he [desired] to return to work at the construction site.  If not, he would be better fit to lighter jobs such as watchman, carpark attendant, cleaner or petty office work”, hence the Plaintiff should have a reasonable period of 6 months after expiry of his sick leave to look for work, especially in light of the economic climate at that time.

84.Mr Lau cited Khan Amar v Cheung Ying Construction Engineering Limited & anor HCPI 231/2005, Reyes J (unreported, 14 March 2006) in support of such proposition. In that case, the plaintiff was a steel frame worker.  His unchallenged evidence was that he tried hard to find new employment after the accident.  He contacted several friends and went to many sites to try to secure light construction-related work but was unsuccessful.  According to him, nobody wanted to employ him when they knew he had an accident and could only do lighter work.  The learned judge did not consider it unreasonable to compensate the plaintiff for 5 months’ search for alternative employment.

85.Mr Lau submitted that assuming the Plaintiff would be able to find work as a cleaner 6 months after expiry of his sick leave, he would have earned a notional monthly income of HK$5,269.00 based on statistics compiled by the Census and Statistics Department for “cleaner (general) (in pest control and cleaning services)” for March 2009.

86.However, Mr Lau conceded at the Hearing that there was no evidence before me that the Plaintiff had ever attempted to find work as a construction site general labourer and/or what efforts the Plaintiff had made to look for any work after expiry of his sick leave and prior to his securing work as a cleaner.  He merely asserted in his witness statement that “[owing] to the [Accident] and disability, [he] was unable to return to [his] pre-injury job” and that “[he] obtained a job of cleaner to a public market …… since October 2009”.

87.The Plaintiff claimed that his monthly earnings as a cleaning worker at a public market were about HK$5,265.00 (according to the SOD), HK$5,682.36 (according to the RSOD), HK$5,800.00 (according to his witness statement) or HK$5,803.06 (according to Mr Lau’s written submissions).

88.The Plaintiff’s average monthly earnings as a cleaner as specified in the RSOD and in Mr Lau’s written submissions were based on the same monthly breakdown of the Plaintiff’s earnings for the period from October 2009 to August 2010 save and except that the amount adopted for October 2009 was HK$3,937.30 in the RSOD and HK$5,265.00 in Mr Lau’s written submissions.  No explanation was forthcoming in respect of such difference.  Nevertheless, since the Plaintiff was willing to adopt HK$5,803.06 as his average post-Accident earnings since 1 October 2009, which amount was higher than that specified in the SOD, the RSOD and/or his witness statement, I am prepared to accept the same for the purpose of the Summons.

89.Using the 1^st alternative in the SOD (ie adopting the Plaintiff’s pre-Accident monthly earnings less his monthly earnings as cleaner for the multiplicand), the 3^rd alternative in the SOD (ie adopting the Plaintiff’s pre-Accident monthly earnings with 30% reduction due to decreased efficiency after expiry of his sick leave for the multiplicand), the 1^st alternative in the RSOD (ie adopting the Plaintiff’s pre-Accident monthly earnings for the multiplicand) and the 3^rd alternative in the RSOD (ie adopting the Plaintiff’s pre-Accident monthly earnings less his monthly earnings as cleaner for the multiplicand), and adopting 26 November 2011 (according to the SOD) or 25 November 2011 (according to the RSOD) as the notional date of trial, the pre-trial loss of earnings were calculated as follows:

(a)  1^st alternative in the SOD:

Period	Calculation (HK$)	Amount (HK$)
26/11/07 – 30/9/09	10,500.00 x 22.1 months	232,050.00
1/10/09 – 26/11/11	(10,500.00 – 5,265.00) x 25.9 months	135,586.50
	Total pre-trial loss of earnings	367,636.50

(b)  3^rd alternative in the SOD:

Period	Calculation (HK$)	Amount (HK$)
26/11/07 – 22/9/09	10,500.00 x 9.9 months	103,950.00
23/9/08 – 26/11/11	10,500.00 x 30% x 38.1 months	120,015.00
	Total pre-trial loss of earnings	223,965.00

(c)   1^st alternative in the RSOD:

Period	Calculation (HK$)	Amount (HK$)
26/11/07 – 25/11/11	11,000.00 x 48 months	528,000.00

(d)  3^rd alternative in the RSOD:

Period	Calculation (HK$)	Amount (HK$)
26/11/07 – 30/9/09	11,000.00 x 22.13 months	243,430.00
1/10/09 – 26/11/11	(11,000.00 – 5,682.36) x 25.87 months	137,567.35
	Total pre-trial loss of earnings	380,997.35

90.According to Mr Lau’s written submissions, the Plaintiff would reasonably be entitled to the sum of HK$343,899.16 for pre-trial loss of earnings:

(a)  total loss of earnings for (i) his sick leave from 27 November 2007 to 22 September 2008 (ie 9.83 months) in the sum of HK$11,000.00 x 9.83 months = HK$108,130.00 and (ii) a reasonable period to find work from 23 September 2008 to 22 March 2009 (ie 6 months) in the sum of HK$11,000.00 x 6 months = HK$66,000.00;

(b)  partial loss of earnings for the period from 23 March to 30 September 2009 in the sum of (HK$11,000.00 – HK$5,269.00) x 6.2 months = HK$35,532.20;

(c)   partial loss of earnings for the period from 1 October 2009 to 25 November 2011 (ie 25.83 months) in the sum of (HK$11,000.00 – HK$5,803.06) x 25.83 months = HK$134,236.96.

91.In their Answer, the 1^st and 2^nd Defendants averred that the Plaintiff should only be entitled to pre-trial loss of earnings during the sick leave period from 27 November 2007 to 22 September 2008 rounded up to 10 months, ie HK$11,000.00 x 10 months = HK$110,000.00.  Thereafter, according to the Jt Ortho Report, the Plaintiff should be able to return to his pre-Accident job as a construction site general labourer, so he should not be entitled to any further damages for loss of earnings.

92.Ms Chan in her written submissions maintained the allowance for loss of earnings in the sum of HK$110,000.00 for the relevant sick leave period, and further agreed that HK$1,000.00 be allowed as the Plaintiff’s monthly loss for mild reduction in work efficiency for the period from 27 September 2008 to 25 November 2011 (ie rounded up to 38 months), ie HK$1,000.00 x 38 months = HK$38,000.00.  Thus, for pre-trial loss of earnings, Ms Chan submitted that the Plaintiff would reasonably be entitled to the sum of HK$110,000.00 + HK$38,000.00 = HK$148,000.00.

XIII.  PARTIES’ RESPECTIVE CASE ON POST-TRIAL LOSS OF EARNINGS

93.The applicable multiplier for lost years in calculating the loss of future earnings was 10 (see paragraph 19 above).

94.The Plaintiff claimed that in view of his persistent back pain he could not resume his pre-Accident work.  Mr Lau submitted Dr Chan opined that the Plaintiff had received appropriate treatment, his impairment would be permanent, and he would have on and off exacerbation of his symptoms with exertion. Dr Chan further opined that the Plaintiff should be able to return to his pre-Accident work as a construction site general labourer with reduction in efficiency due to residual back pain.

95.Mr Lau further submitted that even if the Plaintiff could resume his pre-Accident work with modifications, he would not be a wholly fit worker, so he should be entitled to damages for loss of future earnings on the basis that he would be earning less than a worker who was wholly fit.  He suggested that the Plaintiff would notionally suffer 30% reduction of his pre-Accident earnings.

96.As an alternative, Mr Lau argued that in the construction market, employers preferred to hire more able-bodied workers instead of persons with reduced efficiency, so in reality the Plaintiff would have difficulty in finding work in the competitive construction market even though the Experts opined that he could resume his pre-Accident work with only mild reduction in working efficiency.

97.Mr Lau cited Khan Amarin support of such proposition. In that case, the plaintiff was a steel frame worker. After the accident, he could not secure lighter construction-related work (see paragraph 84 above).  Subsequently he found work as a security guard, so he claimed the difference between his pre-Accident monthly earnings and his monthly salary as security guard.  The orthopaedic expert opined that the plaintiff could return to his pre-accident occupation with likely reduction in efficiency, but the learned judge in paragraph 103 of his judgment stated that “[accordingly], especially in times of a weak or competitive construction market, the reality is that [the plaintiff] will experience difficulty in finding work.  Companies will prefer to hire the more able-bodied before considering someone with reduced efficiency”.  On such basis, he was awarded future partial loss of earnings based on the difference between his pre-accident monthly earnings and his monthly salary as a security guard.

98.Using the 1^st and 3^rd alternatives in the SOD and the 1^st and 3^rd alternatives in the RSOD (see paragraph 89 above), the Plaintiff claimed that the post-trial loss of earnings would be:

(a)  1^st alternative in the SOD: (HK$10,500.00 – HK$5,265.00) x 12 months x 10 = HK$628,200.00;

(b)  3^rd alternative in the SOD: HK$10,500.00 x 30% x 12 months x 10 = HK$378,000.00;

(c)   1^st alternative in the RSOD: HK$11,000.00 x 12 months x 9.8 = HK$1,293,600.00; or

(d)  3^rd alternative in the RSOD: (HK$11,000.00 – HK$5,682.36) x 12 months x 9.8 = HK$625,354.46.

99.Mr Lau’s written submissions suggested that the Plaintiff’s post-trial loss of earnings would be either:

(a)  had the Plaintiff returned to his pre-Accident work with 30% reduction of earnings due to decreased efficiency: HK$11,000.00 x 30% x 12 months x 9.8 = HK$388,080.00; or

(b)  had the Plaintiff maintained his post-Accident work as a cleaner earning HK$5,803.06 per month: (HK$11,000.00 – HK$5,803.06) x 12 months x 9.8 = HK$611,160.14.

100.In their Answer, the 1^st and 2^nd Defendants averred that the Plaintiff was not entitled to any loss of future earnings because the Experts opined that he should be able to return to his previous job as a construction site general labourer.

101.At the Hearing, Ms Chan submitted that for the mild reduction in work efficiency, the 1^st and 2^nd Defendants were prepared to allow HK$1,000.00 as the Plaintiff’s monthly loss, hence damages for post-trial loss of earnings should be HK$1,000.00 x 12 months x 10 = HK$120,000.00.

XIV.  DISCUSSION ON LOSS OF EARNINGS AND MPF CONTRIBUTION

102.There is no dispute between the parties that the Plaintiff should be entitled to damages for total loss of earnings during the relevant sick leave period from 27 November 2007 to 22 September 2008 in the sum of HK$11,000.00 (ie the Plaintiff’s pre-Accident monthly income – see paragraph 18 above) x 10 months (see paragraph 20 above) = HK$110,000.00 (see paragraphs 90(a)(i) and 92 above).

103.The real contention is whether the Plaintiff can demonstrate that he had a reasonable prospect of recovering substantial damages for full and/or partial loss of earnings after expiry of his sick leave on 22 September 2008.  This raised the following questions:

(a)  whether the Plaintiff would have been able to return to his pre-Accident job as a construction site general labourer after expiry of his sick leave;

(b)  if so, whether the Plaintiff would have suffered reduced efficiency upon resuming such pre-Accident work and how such reduced efficiency (if any) would have been reflected in his notional earnings;

(c)   if not, whether and when the Plaintiff should have secured alternative employment after expiry of sick leave, what kind of alternative employment would have been appropriate, and what he would have earned in such alternative employment;

(d)  whether (and if so for how long) the Plaintiff would have been entitled to a reasonable period for securing gainful employment after expiry of sick leave.

104.I am persuaded that at the time of commencement of the present proceedings (and indeed throughout the proceedings until settlement thereof) there was reasonable prospect for establishing that the Plaintiff would have been able to resume his pre-Accident job as construction site general labourer with reduced efficiency, and that he should have been entitled to 4 months after expiry of his sick leave to look for gainful employment in his pre-Accident work.

105.The Plaintiff claimed that due to residual back pain radiating to his legs and his disabilities/impairments as a result of his back injury, he was unable to resume his pre-Accident job.  Presumably, his contention must rest on his alleged physical inability to cope with the job demand.  But in my view, the factual matrix and expert opinion revealed by the materials in the hearing bundle placed before me clearly demonstrate that his back condition was better than he would have let the court believe.

106.Whilst there was little dispute that the Plaintiff suffered back pain post-fracture transverse processes of his lumbar spine at L1, L2 and L3 (see paragraph 71 above) and tenderness was elicited over paravertebral region of the lumbar spine (see paragraphs 55, 57-58 and 60 above), x-ray confirmed that the fracture had healed and according to Dr Lee such healed fracture was possibly non-displaced (see paragraphs 70 and 75 above).  Although the Plaintiff was given a soft lumbar corset by RTSKH in January 2008 and he was wearing it when examined by the Experts on December 2009 (see paragraphs 52 and 67 above), the Experts opined that the soft lumbar corset was not serving its purpose due to his central obesity (see paragraph 67 above).  Thus, the lumbar orthosis was not for pain control.

107.When the Plaintiff was examined by the Experts on 7 December 2009, he complained of difficulty in walking in that he could not control his legs properly, his gait was unsteady and he could not walk straight (see paragraph 63 above).  However, when he was discharged from RTSKH on 24 January 2008 it was noted that he could walk, and at his last orthopaedic follow up on 10 July 2008 he could walk independently (see paragraph 52 above).  Further, physical examination by the Experts on 7 December 2009 (ie the same day that the Plaintiff made the above complaints to the Experts) showed that he sat and walked normally.  He could stand on tiptoes, walk on heels, perform single-legged stand on either leg and perform almost full squat notwithstanding some complaints (see paragraph 67 above).  The Surveillance Report also echoed the Experts’ observation that on 7 December 2009 the Plaintiff walked and sat normally (see paragraph 80 above).  The Plaintiff’s allegations as regards his difficulties in walking were plainly exaggerated.

108.From an early stage of the Plaintiff’s treatment, it was evident that there was no neurological deficit of his lower limbs (see paragraph 52 above) and that the reflexes and motor power of his lower limbs were normal (see paragraph 53 above).  This was confirmed by the Experts’ physical examination (see paragraph 69 above), ie there was no neurological deficit, there was normal motor power of the lower limbs, and there were normal ankle and knee jerks.  Significantly, the Experts discovered there was cogwheel weakness indicating sub-maximal effort, sensory deficit of right lower limb that did not correspond to any specific distribution of the nerve root and that could not be anatomically or pathologically explained, and bigger right thigh and calf girths which were objective indications that the Plaintiff was using his right lower limb normally (see paragraphs 69 and 73 above), and the Surveillance Report noted that the Plaintiff walked normally and was able to ascend/descend staircases on various occasions (see paragraphs 80-81 above).  Such cluster of facts point seriously towards symptom magnification on the part of the Plaintiff. In my view, his complaint of persistent back pain radiating to his bilateral thighs or right thigh/leg (see paragraphs 53, 57 and 63-64 above), back pain referring down to his right knee region (see paragraph 55 above), and sharp pain radiating to his right leg and right leg numbness sometimes (see paragraph 63 above) cannot be supported.

109.It is also difficult to understand why, with significant improvement as a result of physiotherapy treatment (ie report of 40%-50% subjective improvement), the Plaintiff’s SLR test deteriorated and/or fluctuated from 70° on the left and 60° on the right on 6 February 2008 (see paragraph 55 above) to (a) negative on the left and 70° on the right with mild leg pain by 18 August 2008 (see paragraph 60 above) and (b) 60° on the left and 20° on the right by 7 December 2009 with complaint during the test (see paragraph 68 above).  The apparent deterioration/fluctuation is belied by the fact that sitting as opposed to supine SLR test on 7 December 2009 was 80° on either side (see paragraph 68 above).  The Experts agreed such inorganic sign was not caused by the back injury as a result of the Accident or did not have any anatomical or pathological explanation (see paragraph 73 above).

110.The Plaintiff’s major physical complaints were back pain with limitation in active range of movement of the trunk, difficulty and limited tolerance in walking, standing and sitting as well as pain affecting supine lying and sleeping posture, and his complaints as to functional limitation was inability to lift heavy weight or reach forward to put on socks/shoes.

111.However, the various assessments made by RTSKH’s physiotherapists on 6 February, 1 April, 27 May, 16 June and 18 August 2008 showed gradual but significant improvement, particularly in relation to active range of movement of the trunk (see paragraphs 55, 57-58 and 60 above). Indeed, the Plaintiff himself reported 40-45% (1 April 2008) and 50% (27 May and 18 August 2008) overall subjective improvement, and the tenderness elicited over paravertebral region of the lumbar spine decreased upon each assessment regularly done throughout the course of physiotherapy treatment until there was only mild tenderness over right paraspinal region of the lumbar spine on 18 August 2008 (see paragraphs 57-58 and 60 above).

112.Significantly, although the Plaintiff complained to the Experts that there was tenderness over his paraspinal muscles, there was no muscle spasm (see paragraph 68 above).  Whilst both Experts accepted there might be some residual back pain, Dr Lee opined that the absence of muscle spasm was plainly an objective indication of the mildness of any such residual back pain, and Dr Chan did not challenge such observation (see paragraph 74 above).  Even more significantly, during the examination by the Experts on 7 December 2009 the Plaintiff claimed back pain or increased back pain during pain behaviour testing that was not the result of trauma caused by the Accident and could not be anatomically or pathologically explained (see paragraphs 68 and 73 above).  It will be noted that x-ray also did not reveal any organic damage to the lumbar spine other than the healed fracture, and degenerative change was minimal (see paragraph 70 above).

113.In the course of the physiotherapy treatment, flexion improved from finger touching 2 inches below knee with pain elicited to finger touching 3 inches above ankle with mild pain, and extension improved from ¾ range with pain elicited to ¾ range with mild pain elicited.  By 18 August 2008, bilateral side flexion and rotation were full range and pain free. Further, by the time of the Experts’ examination on 7 December 2009, the limitation of lumbar spinal movement was quite mild, ie flexion 50° (normal 60+°), extension 20° (normal 25°), lateral flexion to the right 30° (normal 25°), and lateral flexion to the left 25° (normal 25°) (see paragraph 55, 57-58 , 60 and 68 above).

114.Although the Plaintiff claimed that his pain was aggravated by lifting heavy weights (see paragraphs 55 and 57 above), there was objective improvement.  At the assessment on 27 May 2008, there was less difficulty in lifting weight of less than 15kg (see paragraph 58 above).  Within 2 months from 16 June to 18 August 2008, the Plaintiff’s maxim static lift from floor to waist level improved from 9.8kg to 19.4kg, and his repetitive weight lifting from floor to waist improved from 3kg to 9.7kg maintained for less than 1 minute (see paragraph 60 above).  Yet by the time the Plaintiff made his witness statement in October 2010, he claimed that his lifting capacity deteriorated to from 19.4kg to 19lbs (or 8.6kg) (see paragraph 64 above).  No explanation for such deterioration was forthcoming in light of the improving trend shown in the medical and physiotherapy treatment reports.

115.Although the Plaintiff claimed that his back pain was aggravated by walking for more than 15 minutes and sitting for more than 1½ hours (see paragraphs 55 and 63-64 above), I am not persuaded that in light of the above analysis  this reflected the objective reality.  Significantly, the Plaintiff in his witness statement in October 2010 claimed that his limitation in movement and in walking tolerance was evidenced by his difficulty in climbing up and down staircase for which hand support was required.  But the Surveillance Report showed that on 7 December 2009 and 25 February 2010 (ie almost a year before his witness statement) he was already able to ascend and descend staircase without using any handrail support (see paragraphs 80-81 above).

116.In my view, the above combination of factors and the overall objective factual matrix suggest that the Plaintiff’s inorganic signs were likely to be exaggeration of the severity of his condition and complaints as suggested by Dr Lee rather than body language reflecting significant pain as suggested by Dr Chan (see paragraph 74 above).

117.I have no hesitation in agreeing with the view of both Experts that the Plaintiff should be able to return to his previous job as a construction site general labourer with some reduction in efficiency (see paragraph 77 above). Dr Lee suggested there would be only very mild reduction in work efficiency.  Even though Dr Chan opined that the impairment would be permanent, it was nothing more significant than 3% total body impairment reflecting on and off exacerbation of symptoms upon exertion which rest and painkillers would ease (see paragraph 76 above).

118.Mr Lau suggested that on the basis of the Plaintiff’s pre-Accident monthly earnings of HK$11,000.00 there should be 30% reduction due to his decreased efficiency (see paragraphs 89, 95 and 98-99 above), but he did not offer any reason why a 30% reduction and not any other rate would be appropriate.

119.It was suggested that in the competitive construction market employers preferred to hire more able-bodied workers instead of persons with reduced efficiency, so the Plaintiff would have difficulty in finding work as a construction site general labourer after the Accident.  This is plainly a fact-sensitive matter.  Yet there is no evidence before me that in 2008-2009 the construction market for general labourers was either weak or competitive, that the Plaintiff had ever attempted to look for work as a construction site general labourer (see paragraph 86 above), or that he was unsuccessful in looking for such work because he was less able-bodied.  The present case is wholly different from Khan Amar in which there was unchallenged evidence that the plaintiff in that case had tried hard to secure light construction-related work and failed, so there was undisputed factual premise to support his contention that no one wanted to employ him upon knowing he had an accident and could only do lighter work (see paragraph 84 above).  In the present case, there is simply no factual basis at the time of commencement (or indeed at any other time) of the present proceedings that the Plaintiff was unable to secure work as a construction site general labourer after his sick leave.

120.Prior to the Accident, the Plaintiff on average worked 22 days per month, ie HK$11,000.00 ÷ HK$500.00 (daily rate), which meant that on average he had 8 rest days per month.  Given the Plaintiff’s mild reduction in efficiency as suggested by the Experts, and bearing in mind that his allegations and complaints were exaggerated, I consider it reasonably appropriate that he would have a further 4 rest days each month (ie a further rest day each week) for him to recover from any exacerbation of symptoms.  In the circumstances, I am of the view that there is a reasonable prospect of the Plaintiff establishing at the commencement of the present proceedings that he would have been able to return to work as a construction site general labourer with mild reduction in efficiency for 18 days per month, thus his notional monthly earnings would have been HK$9,000.00.

121.The next question is when the Plaintiff could have returned to work as a construction site general labourer.  Mr Lau suggested that the Plaintiff should be allowed a period of 6 months after 22 September 2008 (ie expiry of sick leave) to look for any form of gainful employment (see paragraph 83 above).  This is again a fact-sensitive matter; but Mr Lau did not offer any explanation for and the Plaintiff did not adduce any affidavit evidence to justify why 6 months would be reasonable and appropriate in light of the available factual matrix.

122.I bear in mind that a construction site general labourer is a non-skilled worker and that the Plaintiff did not adduce any evidence of having ever attempted to look for such work after expiry of his sick leave.  In Khan Amar, even with unchallenged evidence as to the plaintiff’s difficulty in securing lighter construction work despite diligent attempts (see paragraph 84 above), the court only allowed him 5 months to look for work.  In my view, even on a reasonably generous basis, the Plaintiff should only be allowed 4 months after his sick leave to look for work in the absence of evidence of any attempts to do so prior to 1 October 2009.

123.Assuming that 25 November 2011 were the notional trial date, I am of the view that there was a reasonable prospect for the Plaintiff in establishing at the time of commencement of the present proceedings (and indeed throughout the proceedings) that he would be entitled to full loss of earnings during his sick leave, full loss of earnings for 4 months after expiry of sick leave (ie until 21 January 2009) to enable him to look for work, and partial loss of earnings thereafter until 25 November 2011 (ie rounded up to 34 months) as his pre-trial loss of earnings.  For post-trial loss of earnings, the Plaintiff would have reasonable prospect of establishing partial loss of earnings as from 26 November 2011 calculated on the basis of a rounded up multiplier of 10.

124.Thus, the Plaintiff’s pre-trial loss of earnings reasonably calculated at the issuance of the Writ of Summons was HK$222,000.00 as follows:

(a)  HK$11,000.00 x 10 months (sick leave) = HK$110,000.00;

(b)  HK$11,000.00 x 4 months (to look for work) = HK$44,000.00;

(c)   (HK$11,000.00 – HK$9,000.00 (notional monthly income – see paragraph 120 above)) x 34 months = HK$68,000.00,

and his post-trial loss of earnings would be (HK$11,000.00 – HK$9,000.00) x 12 months x 10 = HK$240,000.00.

125.The Plaintiff’s loss of MPF contribution would have been (HK$222,000.00 + HK$240,000.00) x 5% = HK$23,100.00.

XV.  LOSS OF EARNING CAPACITY

126.The Plaintiff claimed that as a result of his disabilities and injuries he would be disadvantaged in the labour market.  He claimed loss of earning capacity in the sum of HK$5,265.00 x 12 months = HK$63,180.00 (according to the SOD) or HK$5,682.36 x 12 months = HK$68,188.32 (according to the RSOD) being a year’s income at his current earnings as a cleaner.

127.In his written submissions, Mr Lau argued that a reasonable award under this head of claim should be HK$52,522.11 being equivalent to 9 months’ earnings as a cleaner. However, that translates to earnings of HK$5,835.79 per month, which does not sit well with the amount of the Plaintiff’s monthly earnings as a cleaner (see paragraph 87 above).

128.In the Answer, the 1^st and 2^nd Defendants averred that the Plaintiff was not entitled to damages for loss of earning capacity because the Experts opined that he could return to his previous job as a construction site general labourer.  But Ms Chan in her written submissions agreed to allow a sum of HK$50,000.00 for loss of earning capacity.

129.I accept that at the commencement of the present proceedings, the Plaintiff would be able to establish that there was reasonable risk that he would be disadvantaged if he were thrown onto the labour market.  However, given the mildness of his reduction in efficiency, his exaggeration of his complaints, the absence of evidence of any attempt to look for work as a construction site general labourer after the Accident, and the unskilled nature of such work, I am persuaded that the Plaintiff would only be entitled to an award equivalent to 6 months’ earnings at his notional reduced rate of HK$9,000.00 per month, ie HK$54,000.00.

XVI. PSLA

130.In the SOD and the RSOD, the Plaintiff claimed damages in the sum of HK$250,000.00 for PSLA. In the Answer, the 1^st and 2^nd Defendants averred that the award for PSLA should be HK$100,000.00.  Ms Chan in her written submissions suggested that the Plaintiff had a reasonable prospect of recovering HK$200,000.00 under this head of claim.

131.Mr Lau relied on the following authorities:

(a)  In Tam Wing Tuen v Seiko Screw Manufactory Limited HCPI383/2008, Mr Recorder B Yu SC (unreported, 18 December 2009), the plaintiff injured his back whilst loading aluminum coils onto a machine.  He received physiotherapy and occupational therapy and was granted a long period of sick leave.  He claimed to have severe walking and sitting limitations, and could not lift/carry heavy weight.  His sleep was affected and he could not participate in sports; his social and sex life suffered.  The plaintiff claimed that on several occasions after the accident he could not hold down his job as security guard because of pain and inability to cope with the job demands.  After such failed attempts, he was unable to find gainful employment.  The learned recorder found that the plaintiff had a degenerative spine which predisposed him to back pain, and there was an even chance he would suffer recurrence of back pain which could be treated with rest, physiotherapy and other forms of conservative treatment but would not debilitate him permanently from work.  Taking into account the likelihood that the plaintiff’s complaints were not entirely organic and that when the anxiety/stress associated with litigation was over he might find his pain/disability to be less severe, and further finding that awards made in cases where the plaintiff was disabled from prolonged walking/sitting to be of assistance, he awarded HK$250,000.00 for PSLA.

(b)  In Lung Kwong Ying v So Lai Lo & ors HCPI 206/2001, Seagroatt J (unreported, 9 August 2002), the plaintiff was a steel fixer who suffered contusion to his lumbar spine.  The learned judge found the plaintiff to be refreshingly candid and in no way exaggerated his condition.  There was decreased range of movement and muscle spasm.  The plaintiff received physiotherapy and attended follow up.  He tried to return to work but stopped after 3 days because the pain was intolerable.  There was a significant degree of disability with residual back pain as a result of back sprain on top of degenerative changes. The plaintiff had to avoid heavy lifting, and it was unwise for him to return to his pre-accident work which was heavy in nature and involved lifting.  After the accident, the plaintiff only worked on a periodic basis as a construction site mapping worker.  He was awarded HK$250,000.00 for PSLA.

(c)   In Ali Shoukat v Hang Seng Bank Limited HCPI 3/2003, Suffiad J (unreported, 23 June 2004), the plaintiff suffered sprained back injury with severe pain to his low back. X-ray revealed loss of lordosis.  Although the pain continued, he returned to work as security guard but eventually stopped because he could not endure the pain.  He was given medication and physiotherapy, and was advised to wear a corset.  Later his pain worsened, and he could not tolerate prolonged standing, sitting or walking.  With medication and physiotherapy, there was gradual improvement, but there was still residual pain.  Both parties’ experts found loss of lordosis in the lumbrosacral area where the pain existed and also some muscle spasm.  They also assessed the plaintiff’s whole person impairment to be 5%, and agreed that he could return to work as security guard with the qualification that he could not lift heavy weight of 55kg.  The learned judge concluded there was some residual pain at the low back which might still bother the plaintiff from time to time, but it was not so debilitating as to affect his activities of daily living.  He did not accept the plaintiff could not walk on his own or he needed a walking stick to do so.  He found that the plaintiff would be able to return to work as a security guard with the qualification that he might not for some time to come be able to lift weights beyond 10kg which would aggravate his back pain.  On such basis and bearing in mind that the plaintiff had been experiencing residual low back pain for almost 4 years, the award for PSLA was HK$250,000.00.

132.Ms Chan cited Tang Wing Pui v Ho Pui Ling trading as Wing Hing Meat Company (Pork Dept.) HCPI 364/2001, DHCJ Gill (unreported, 9 November 2005).  In that case, the plaintiff suffered a slip and fall accident landing on his back and hitting the back of his head.  He lost consciousness and was taken to the hospital.  He was diagnosed to have fractured the transverse processes of the lumbar spine (L1 and L2) and was hospitalised for 38 days.  From then on, he was treated for persistent back pain and he returned to the hospital periodically.  MRI scans revealed mild lumbar spondylosis.  There was non-union of the L1 fracture, but the L2 fracture healed.  The plaintiff’s expert opined that with persistent back pain the plaintiff would have difficulty in resuming his pre-accident job as a sailor, but the defendant’s expert considered the back pain was unlikely to be significant in the absence of clinical muscle spasms so the plaintiff should be able to return to work as a sailor as long as he did not have to undertake heavy lifting.  The learned judge accepted the undisputed medical finding that the plaintiff had a back injury that was permanent and the plaintiff’s account that he would not be able to properly fulfill the responsibilities of a deck officer.  The court held that the plaintiff’s injury was below the “serious” category, and the PSLA award was fixed at HK$200,000.00.

133.In the present proceedings, the Plaintiff claimed that his mobility was restricted and he was no longer able to enjoy his pre-Accident leisure activities of playing football twice a week and traditional Nepalese dancing during festivals.  He was suffering from persistent low back pain and was unable to return to his previous work.

134.However, I have found that the Plaintiff was likely to have exaggerated his disabilities, and his condition was not as debilitating as he portrayed.  In light of the analysis in Part XIV above, I am persuaded that the Plaintiff’s impairments and disabilities were less serious that those suffered by the plaintiffs in the authorities cited by Mr Lau and slightly more than those suffered by the plaintiff in the authority cited by Ms Chan.  I am persuaded that the Plaintiff in the present case would reasonably have been able to establish at the time of the commencement of the present proceedings (and indeed throughout the proceedings) an award for PSLA in the sum of HK$230,000.00.

XVII.  CONCLUSION

135.Taking into account the Plaintiff’s reasonable prospect of establishing damages for PSLA, pre-trial loss of earnings, post-trial loss of earnings, loss of MPF and loss of earning capacity in the respective sums of HK$230,000.00, HK$222,000.00, HK$240,000.00, HK$23,100.00 and HK$54,000.00, and the undisputed sum of HK$6,500.00 for other heads of damages (but less employees’ compensation in the sum of HK$121,906.39), the Plaintiff is likely to be able to establish a total award of damages of HK$653,693.61. There was no dispute that interest on general damages would be calculated at the rate of 2% pa from the date of the Writ of Summons to the date of judgment, and interest on special damages would be at judgment rate from the date of the Accident to the date of judgment.

136.This means that the Plaintiff was only able to show that his claim had reasonable prospect of coming within the District Court jurisdiction.  I agree with Ms Chan that the present proceedings should have remained in the District Court.  In such circumstances, I have no hesitation in concluding that costs of the action should be on the District Court scale of costs.

137.There is no reason why costs should not follow event.  I hereby grant a costs order nisi that the Plaintiff do pay the costs of the Summons (including all costs reserved) to be summarily assessed on High Court scale, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.  As regards the summary assessment of costs, I grant the following directions:

(a)  if no application is made to vary the costs order nisi within 14 days from today, the 1^st and 2^nd Defendants do within 21 days from today lodge and serve statement of costs pursuant to Practice Direction 14.3, and the Plaintiff do within 7 days thereafter lodge and serve succinct summary of objections in bullet point format of not more than half page in respect of the 1^st and 2^nd Defendants’ statement of costs (“Objection Summary”);

(b)  if application is made to vary the costs order nisi within 14 days from today, both parties do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3, and within 7 days thereafter respectively lodge and serve his/their Objection Summary to the other party’s statement of costs;

(c)   the 1^st and 2^nd Defendants do within 14 days from today fix a date with the Listing Clerk for the hearing of the summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved;

(d)  any application for variation of the costs order nisi shall be heard at the same time as the hearing for summary assessment of costs.

138.On a final note, I should a few words about the hearing bundle.  The hearing bundle that was placed before me was unsatisfactory.  It was marked up in manuscript writing and coloured with purple and green highlighter in a number of places.  More importantly, there was no pagination at all, which made reference to the relevant pages at the Hearing problematic.  Had the Plaintiff succeeded in obtaining any costs order nisi in his favour, I would have disallowed the costs of the preparation of the hearing bundle.  As it were, there is no need for me to make any provision for such costs save to express the court’s displeasure over such poor preparation of the hearing bundle.

Representation:

Mr A Lau of Messrs M C A Lai & Co for the Plaintiff.

Ms S Chan of Messrs Chu & Lau for the 1^st and 2^nd Defendants.