Lam Kam Fai v. Yau Shing Scaffolding Co Ltd and Another

HCPI 894/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 894 OF 2011

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is an action for damages for personal injuries suffered by the Plaintiff as a result of an accident which took place on 23 December 2008. At the time the Plaintiff was employed as a scaffolder by the 1^st Defendant, the 2^nd Defendant being the principal contractor responsible for the site where the accident occurred. The Plaintiff was in the process of erecting and securing certain bamboo ‘inner-scaffolding’ when he slipped. He fell a distance of about 1.5 metres before arresting his fall by grabbing some ‘outer-scaffolding’. His left foot, however, struck some wooden boards as a result of which he sustained a fracture of his left ankle (the distal fibula) requiring surgery on the day after the accident.

2.It is not disputed that the Plaintiff sustained his injury in the course of his employment. Liability has been admitted. Accordingly, the issues before me have turned solely on the assessment of damages.

3.At the date of the accident the Plaintiff was 24 years old. He had entered the construction industry when he was 20 years of age, working initially (for about one month) as a general labourer before taking up work as a scaffolder. He had been employed by the 1^st Defendant in that capacity for some 18 months. He received a daily wage of $900, working about 26 days a month. His average monthly salary at the time of his accident was $23,400.

4.On behalf of the Plaintiff, it was submitted that the ankle injury sustained by him on 23 December 2008 has resulted in persistent, if intermittent, pain to the area of the ankle which radiates up the leg. This discomfort is made worse by intermittent swelling and tightness to the area of the ankle. There is, in the result, weakness in the area of the ankle which, accompanied by chronic insomnia and continuing psychological stress, prevents him from returning to his pre-accident job or any job in the construction industry.

5.On behalf of the Plaintiff it was further submitted that he must now be content with a more sedentary occupation, his chosen occupation in that respect being one of a security guard.

6.On behalf of the Defendants, while it was admitted that the Plaintiff sustained ‘quite a serious injury’, it was submitted that by about the end of December 2011, three years after the accident, he was found by the orthopaedic expert appointed by the parties, Dr Chun Siu Yeung, to be capable of returning to his work as a scaffolder with just a mild reduction of his working efficiency. That being the case, even if the Plaintiff was to choose some other job in the construction industry other than that of a scaffolder, he would be capable – and is capable – of earning more than in his chosen field of security.

7.In September 2012 and March 2013, upon the joint application of the parties, this court ordered that the medical reports of the various government hospitals and clinics together with Dr Chun's medical reports should be adduced without the need to call the makers of the reports to give supporting evidence. Accordingly, even though Dr Chun’s main report was written some 20 months prior to trial, no such evidence was called.

8.That being said, during the course of the hearing before me it became apparent that the central conflict went to a true assessment of the Plaintiff's present physical condition. Is his condition as bleak as painted by the Plaintiff himself, preventing him from taking up any form of work other than that of an essentially sedentary nature or does the opinion of the orthopaedic expert appointed jointly by the parties reflect the true state of the Plaintiff's physical condition?

A BRIEF HISTORY OF THE PLAINTIFF’S MEDICAL TREATMENT UNTIL THE END OF 2011

9.The day after the accident, the surgical fixation of the fracture of the Plaintiff's left ankle was conducted at the Queen Mary Hospital. He was discharged after eight days, walking with the aid of bilateral crutches which he was able to discard some nine months later.

10.After his discharge, between March and July 2009, the Plaintiff underwent physiotherapy treatment, reporting a 60-70% improvement.

11.Thereafter, from July until November 2009, the Plaintiff underwent work rehabilitation training. In a test conducted in November 2009, he was found to be physically capable of standing and walking for up to 60 minutes. However, he had great difficulty climbing ladders and scaffolds due to pain in his left ankle. It was suspected that the complaints of persistent pain may arise out of a screw that had been implanted during his operation to help secure the fracture. In the result, on 13 April 2010, with his fracture now considered healed, the Plaintiff was admitted to Queen Mary Hospital again for the surgical removal of his implant. On this occasion he was hospitalised for six days.

12.After his discharge, the Plaintiff underwent further physiotherapy treatment which was concluded in June 2010. On 17 June 2010, with his second round of physiotherapy treatment concluded, the Plaintiff was seen by a doctor of the Orthopaedics and Traumatology Department. The doctor reported that the Plaintiff walked unaided and that he had recovered full and active range of motion in the ankle joint. On that date, that is on 17 June 2010, the Plaintiff was held to be orthopaedically fit.

13.It is to be observed that on 17 June 2010 the Plaintiff asked the examining doctor for further sick leave. The doctor recorded that the request was made so that the Plaintiff could take driving lessons. Understandably, that being the basis for the request, it was refused.

14.After this date, the Plaintiff sought no further treatment from Government doctors. Instead, between June and October 2010, he attended the clinic of a private medical practitioner, Dr Wong Pit See, for treatment of his complaint made to that doctor that he suffered from emotional problems and had persistent pain in his ankle. The Plaintiff was diagnosed as suffering from post-traumatic depression and chronic pain syndrome. Concerning these psychological problems, no detail was placed before me as to the nature of the treatment recommended and/or received. It follows, of course, that no detail was placed before me as to how successful any treatments were.

15.However, after October 2010, for a period of some two years, the Plaintiff does not appear to have sought further medical treatment in respect of either his physical or psychological impairment.

16.The writ of summons which commenced this present action was issued on 14 December 2011. Some six days later, on the morning of 20 December 2011, Dr Chun Siu Yueng, the orthopaedic expert appointed jointly by the parties, conducted an examination of the Plaintiff.

DR CHUN’S FIRST EXPERT REPORT

17.Dr Chun recorded the Plaintiff’s ‘present complaints’. In this regard, he recorded the following. First, that the Plaintiff complained of intermittent ‘numbing’ or ‘pricking’ pain in the area of his left ankle when forced to stand for 20 or 30 minutes or when forced to sit for about the same period of time. Similar discomfort was felt when carrying heavy objects (‘of 20-30 catties’), and when squatting or when walking for an extended period of time, about one hour. The Plaintiff estimated his level of pain on the Visual Analog Scale (0 being no pain at all, 10 being extreme pain) at grade 5, well above mild discomfort. The Plaintiff further complained of a similar level of pain when going up and down stairs, going down being worse, or when forced to jog for a few minutes. He also spoke of discomfort when there was a change in the weather. The Plaintiff also spoke of stiffness in the left ankle accompanied by a sensation of a lack of balance. He said that he experienced pain in the lower back when carrying heavy objects, when bending, squatting or during exercise (when, for example, he had sex with his girlfriend). The pain he said lasted just 2 to 3 seconds but had an intensity of grade 4 to 5.

18.The Plaintiff further complained of having nightmares of the accident on a regular basis: one or two times a week. Dr Chun, however, does not speak of the Plaintiff receiving any particular treatment (by way of medication or otherwise) to cope with the nightmares, post-dramatic depression or chronic pain syndrome.

19.In order to prepare his report, Dr Chun examined a series of X-rays of the Plaintiff's left ankle taken between 23 December 2008 and 17 June 2010. In a number of those X-rays Dr Chun noticed an old fracture with “non-union at tip of distal fibula”. No evidence has been put before me to suggest that the doctor was mistaken in this regard. The doctor was of the opinion that this fracture should have occurred before the December 2008 accident; a few years earlier. However, according to the doctor, when the Plaintiff was questioned on the subject, he denied any prior injury to his left ankle.

20.As I have said, no medical evidence was called at trial. There was therefore no evidence of the exact meaning of a non-union fracture or its symptoms. That being said, I am of the view that the court can take notice of a well-known and uncontentious medical condition; namely, that if bone tissue fails to grow after a fracture in order to bind that fracture, that is, to join the broken pieces of bone, the fracture is described as a non-union fracture. One of the recognised symptoms of a non-union fracture is that the patient may feel pain at the site of the fracture months or even years after the fracture itself occurs.

21.During the course of his examination, Dr Chun took an X-ray of the Plaintiff's ankle. He noted that the ankle joint was normal with no diastasis. Bone density was normal. The ‘new’ fracture, he reported, was healed in an anatomical position. However, the earlier fracture, the one that he assessed as being a few years old, had still not been bound by the growth of bone tissue; in short, it remained non-union.

22.Dr Chun also took an X-ray of the Plaintiff's spine which revealed “very gentle left scoliosis” with some mild facet joint degeneration/hypertrophy. However disc heights were maintained and vertebral bodies were unremarkable.

23.In respect of the Plaintiff's complaint of low back pain, Dr Chun reported that it was: “without any documentation from his attending doctor”. He continued: “Low back pain is a very common condition. This low back pain was most unlikely to be related to the alleged injury”.

24.As to the Plaintiff’s ankle injury, Dr Chun’s conclusions were to the following effect: “Physical examination showed basically normal gait and station. There is mild residual stiffness in left ankle dorsiflexion and plantar flexion. There is no significant wasting of the left lower limb muscles”. The doctor continued: “His present finding and symptoms at the left ankle are largely compatible with the injury of 23 December 2008. Small portion of the residual pain and stiffness could have been contributed by the pre-existing fracture non-union”.

25.It was Dr Chun’s opinion that the Plaintiff's condition had reached maximum medical improvement and that no further active treatment was required.

26.Concerning the Plaintiff's prognosis, the doctor reported: “From the objective physical findings noted at this examination, with no muscle wasting, mild ankle stiffness and normal joint and bone density with no post-traumatic osteoarthritic change, the prognosis is estimated to be good”.

27.As to the Plaintiff's general impairment and his ability to return to work, the doctor was of the opinion that the Plaintiff “is independent with his activities of daily living. He is able to return to work as a scaffolding worker with mild reduction of work efficiency. His present work as a goldfish salesman and serving his clients is suitable. He is encouraged to resume jogging which should be beneficial. As to his present left ankle condition, with mild residual stiffness and pain, normal ankle join on X-ray without osteoarthritic change, there is 8% impairment of the lower extremity, [this being] equal to 3% impairment of the whole person.”

28.Dr Chun qualified these findings by saying that he would apportion 30% of this impairment to the Plaintiff's previous non-union fracture. Accordingly, in respect of the injury sustained on 23 December 2008, the doctor was of the opinion that the whole person impairment should be set at 2%.

29.Dr Chun said that the Plaintiff's loss of earning capacity arising out of the injury of 23 December 2008 should be set at 3%.

30.In summary, in his report made three years after the accident and after the Plaintiff had undergone extensive physiotherapy, Dr Chun was of the view that the Plaintiff's prognosis was good. Although he detected mild residual stiffness in the left ankle, he found no significant wasting of the lower limb muscles. On his assessment, bone density was normal and, importantly, there was no indication of post-traumatic arthritis. The doctor encouraged the Plaintiff to resume jogging, clearly in order to rebuild his fitness levels and strengthen the ankle area.

31.In the opinion of the doctor, the Plaintiff was now fit enough to return to work as a scaffolder with just a mild reduction of his work efficiency.

32.In the course of his evidence, however, the Plaintiff made plain that he did not consider that he was now capable of returning to work as a scaffolder. Nor would he ever be capable of doing so. More than that, it was the Plaintiff's assertion that he would not be capable of undertaking any form of work on a construction site, even as a general labourer. He said that he had attempted to do so with disastrous results, first, by attempting to return to his old work as a scaffolder and several months later by attempting to work as a general labourer on a construction site.

THE COVERT VIDEO FILM

33.At this juncture, something should be said of a video film taken (covertly) of the Plaintiff going about his ordinary business. The film was taken at or about the time when the expert report was compiled, that is, at or about the end of 2011 or the beginning of 2012.

34.The video film shown in court ran for a little over 20 minutes. The film shows the Plaintiff walking along a street in Hong Kong, entering an MTR station and walking down steps, sitting on a train reading a newspaper, alighting and walking to a bus stop where he is seen waiting. He is then seen later driving a lambretta, parking it and working in a shop where pet fish are sold.

35.The film is, of course, of limited value. It does not show the Plaintiff walking great distances or undergoing difficult or strenuous exercises. That being said, to the ordinary observer nothing in the film indicates that the Plaintiff, in the ordinary run of his life, is suffering from any form of weakness or discomfort. To the ordinary observer, there is no evidence whatsoever that he favours one leg over the other or, for example, that he displays any form of caution before walking down steps or during that process. There is no suggestion of any form of limp. Throughout the length of the film he appears entirely relaxed. By way of illustration, when parking his lambretta, it is necessary for the Plaintiff to use his right foot to bring a parking stabiliser into play. When he does so, there is no evidence of caution on his part. His movements are fluid and balanced. There is no evidence, for example, that he seeks to ‘set himself’ so as to avoid any strain on his left ankle when carrying out the action – an action, it is to be remembered, that has to be executed with a reasonably cumbersome piece of equipment.

36.As I have said, the weight to be given to the covert video film must be approached with caution. That being said, I could find nothing in the film that did not essentially harmonise with the expert report of Dr Chun. The film portrays a man who, from appearances at least, appears to be physically relaxed and, in so far as surface appearances are relevant, emotionally untroubled.

DRCHUN’S SUPPLEMENTARY REPORT

37.In early July 2013, Dr Chun was sent two further medical reports. The first was by Dr Wong Pit See, the second was by Dr Tio Man Kwun, this second report being dated June 2013.

38.The second report, that of Dr Tio, made mention of the fact that the Plaintiff had attempted to return to work as a scaffolder in November 2012 but found that he was unable to cope. The apparent cause had been pain in the left ankle and difficulty maintaining balance.

39.What has caused some confusion however is that, according to Dr Chun, Dr Tio reported being told by the Plaintiff that he had suffered another fall from scaffolding in his failed endeavour to return to work. However, if that is what happened, no details were given. Instead, the Plaintiff himself spoke only of slipping and spraining his left ankle and of being told at the hospital that same day that he may have sprained his ligament.

40.It was the Plaintiff's evidence that, on the day when he attempted to return to work, the pain in the area of his left ankle was such that he could not continue and he sought medical treatment from the Accident and Emergency Department of the United Christian Hospital. After a night's rest, he attempted to return to work the next day but the pain and numbness to his left leg still persisted. Again, he was forced to stop working and returned to the United Christian Hospital for further treatment. According to the Plaintiff, about a week later, on 29 November 2012 he went to the Tuen Mun Hospital for further treatment and was told that he had sprained his ligament and might not be suitable to work as a scaffolder in the future.

41.There is however no documentary evidence to support any fall and sprain. There is no hospital report showing that the Plaintiff attended the United Christian Hospital on 20 November 2012. There is just a letter of referral of the following date stating that the Plaintiff has complained of residual left ankle pain. There is no medical report at all from the Tuen Mun Hospital concerning any sprain of the ligament.

42.If the Plaintiff did attend the hospital on 20 November 2012, a report would have been made out detailing his complaint and giving some background. I accept, of course, that documents may go missing or may have been overlooked in the general exercise of gathering evidence for this case. But, if a report had been made out on 20 November 2012, it is puzzling that the report of the following day should make no mention of the fact that the Plaintiff had been there the previous day and that his complaints of physical distress had arisen out of his attempt on two days to return to his work.

43.It was the Plaintiff’s further evidence that in March 2013 he attempted to work as a general worker on a construction site. However, after a period of four days, when he was on and off work, the pain was such that he could not continue. The Plaintiff said that he attempted to work again in April 2013 but after a day and a half the pain in his left ankle and leg made it impossible.

44.Dr Tio’s report indicates that the Plaintiff consulted him on 22 May 2013, showing him an MRI done on his left ankle a couple of weeks earlier, apparently on 8 May 2013. This MRI, said the doctor, showed a “partial tear of the anterior talofibular ligament” and of the “calcaneofibular ligament”.

45.The weight of the evidence ‘appears’ to suggest – and I can put it no higher than that because the evidence is at best vague and questionable – that when the Plaintiff attempted to take up his job as a scaffold worker in November 2012, he somehow sprained or tore his ligament. But what does that prove? Does it prove that his existing vulnerability led to further injury or simply that at some unspecified time he tripped and fell?

46.In his supplementary report, Dr Chun said that it was difficult to determine the cause of the partial tear shown on the MRI without far more detail of the Plaintiff's fall, if one had occurred at all. Dr Chun concluded that there was “about a 70% chance” that the partial tear was in some way associated with the old non-union fracture. He said that there was far less chance, one that he estimated to be at about 30%, that the partial tear was due to the injury sustained on 23 December 2008.

47.Dr Chun was of the firm view that these additional reports, more especially the report of Dr Tio, did not cause him to amend the views stated in his first report.

48.Dr Chun was of the view that the additional sick leave granted by the private doctor, Dr Wong Pit See, was not justified.

THE PLAINTIFF’S CASE AS TO HIS PRESENT CONDITION

49.As I have indicated earlier, the Plaintiff has painted a bleak picture of his physical condition. In the Re-revised Statement of Damages, it is said on behalf of the Plaintiff that he is still suffering from, and will continue to suffer from, the following disabilities. First, pain and weakness at the left ankle which radiates up to the left thigh and down to the left sole and is aggravated by cold and humid weather. Second, intermittent numbness and tiredness of the left leg, in particular the left ankle, this being aggravated by prolonged walking or sitting. Third, swelling and tightness at the left ankle. In the result, on behalf of the Plaintiff, it is said that he is unable to carry heavy objects and that he suffers from chronic insomnia, this being coupled with psychological stress.

50.The Plaintiff’s two unsuccessful attempts to return to work in the construction industry (first, in November 2012 as a scaffold worker and, second, in March/April 2013 as a general construction worker) have been used by the Plaintiff to support his assertion that he is no longer able to undertake such work and is reduced to employment of a far more sedentary nature.

51.The difficulty that confronts me, however, in respect of these two attempts to return to work, is that they are not supported by the medical evidence. In respect of the November 2012 attempt, there is only a referral letter speaking of a complaint of residual left ankle pain. Nothing is said of pronounced pain and discomfort being occasioned by a return to work nor of any fall at work causing a tear or sprain of a ligament. While an MRI was taken in May 2013 (it is uncertain by whom), this would have been well after the two alleged attempts to return to work. Nor is there any persuasive evidential nexus between the injury shown on the MRI and any fall (or other form of injury) occasioned in November 2012 or March/April 2013.

52.Nor has any persuasive evidence being put before me as to the Plaintiff's psychological condition; namely, his chronic insomnia and his apparent psychological stress. There is no evidence, as I have said earlier, of specific treatment by way of medication received or otherwise. If the Plaintiff, as he has asserted, has been subject to psychological difficulties then the burden has been on him to take reasonable steps to seek treatment and to follow that treatment. Details should be before the court.

MY ASSESSMENT

53.On an assessment of all the evidence, having heard the Plaintiff testify, I reject the essentially bleak portrait of his condition. While I accept that the ankle injury may cause the Plaintiff discomfort on an intermittent basis, I am satisfied that the probabilities point firmly to the Plaintiff's true condition being the condition detailed by Dr Chun.

54.Other than the Plaintiff's essentially unsupported allegations to the contrary, nothing has been put before me to suggest that  Dr Chun’s expert report – a report made three years after the December 2008 injury – was not at the time a true and accurate report.

55.More than that, as Mr Daniel Chan, counsel for the Defendants, submitted, the report is supported by other evidence.

56.There is evidence that in mid-2010, more than a year before the expert report, the Plaintiff's fracture was found to have healed completely, giving the Plaintiff a full and active range of motion of the ankle joint.

57.What should also be taken into account is that seemingly, for a period of about two years from October 2010 until November 2012, the Plaintiff does not appear to have received any active treatment for his ankle and allied discomfort.

58.If the Plaintiff's attempts to return to work in November 2012 aggravated his existing disability, as appears to be suggested, clear evidence of this would have been expected. By clear evidence, I mean a report by a doctor which speaks of the circumstances in which the existing disability has been aggravated and speaks also of the nature of that aggravation. But there is none. In this regard, it may be said that the MRI is proof itself of a tear or sprain. That may be so. But, as Dr Chun points out – and he is the orthopaedic expert – it is difficult to identify the cause of that injury without far greater detail of what happened to the Plaintiff in November 2012 and/or March/April 2013. Indeed, the doctor is of the opinion that the injury was most likely to date back to the non-union fracture injury existing at the time when the Plaintiff was injured in December 2008.

59.I pause at this juncture to observe that – the medical evidence proving that the Plaintiff had sustained a non-union fracture some time before December 2008 – it is curious that he should deny any knowledge of it. A non-union fracture suggests an injury to the area of the ankle of some seriousness. Perhaps the Plaintiff had been unaware of any fracture as such but it is puzzling that seemingly he would not have been aware of any form of injury that may have given rise to it.

60.Finally, there is the existence of the covert video film. As I have said, while that video film must be viewed with some caution, to the ordinary observer nothing in it indicates that the Plaintiff, in the ordinary run of his life, is suffering from any form of weakness or discomfort or that, for example, he instinctively favours one leg over the other when walking downstairs. The film portrays a man who, from appearances at least, appears to be physically relaxed, untroubled by any residual orthopaedic disability. In addition, as I have said earlier, in so far as surface appearances are of any weight, he comes across as being relaxed and psychologically at ease.

THE PLAINTIFF’S WORK ABILITY

61.In finding that, on the probabilities, Dr Chun's expert report gives a true statement of the Plaintiff's physical condition at the end of 2011, I have rejected the Plaintiff's assertions that his physical disability is more profound.

62.As to the Plaintiff's two attempts to return to work, while obviously, after a long layoff, such attempts would have involved a degree of exertion and discomfort, I do not accept that they resulted in the level of pain and discomfort that the Plaintiff has spoken of in his statements and his evidence. I have been left with the very real impression that the level at which the Plaintiff pitched his evidence in this regard was tactical; in short, purposefully exaggerated.

63.Equally, while I accept that the Plaintiff may have suffered psychological distress in the wake of his accident in December 2008, in the absence of any real evidence as to his current psychological condition, I cannot accept that today, well over four years after the accident itself, his psychological condition is of such a profound nature that it prevents him from returning to employment in the construction field.

64.In the course of his submissions, Mr Clough, counsel for the Plaintiff, said that workers in the construction industry need to be fit and strong and capable of remaining active throughout the day. The Plaintiff, he submitted, was no longer able to summon up the levels of fitness and strength to remain active on that basis.  I do not accept that.

65.I do accept that, subjectively, the Plaintiff may harbour greater sensitivity to his residual disability than objectively should be the case. However, I reject his evidence that he is today incapable of holding down any kind of job other than that of a sedentary nature such as a security guard. I am satisfied that the probabilities point to the fact that the applicants decision to take up work as a security guard is not a decision forced upon him by his physical condition but is more accurately a career choice on his part.

66.During the trial, I expressed some concern that a scaffold worker, by the nature of his employment, may not be able to tolerate even a modest lack of flexibility or weakness in the area of one or more of his ankles. That concern, however, was not based on any knowledge of the occupation. Nor was anything put before me to suggest that my concern was one of such substance that it should lead me to reject the opinion of Dr Chun, the orthopaedic expert, that the Plaintiff was capable of returning to work as a scaffolder with just a mild reduction of his working efficiency. I am satisfied that the doctor would not have come to this stated view if, in his mind, there was any risk to the Plaintiff or if he was not of the opinion that the Plaintiff was capable of meeting the requirements of the job.

67.As I have said earlier, no doubt after a protracted layoff any work of a physical nature is going to exact an initial toll. But that itself cannot act as a bar.

THE OLD INJURY

68.As I have said, I am satisfied that, when Dr Chun carried out his examination, he identified an old injury to the Plaintiff's left ankle, that is, the non-union fracture, an injury that would have been in existence at the time when the Plaintiff sustained his injury in December 2008.

69.Dr Chun was of the opinion that, in coming to his finding that there was an 8% impairment of the Plaintiff's lower extremity, the pre-existing injury could not be ignored. It was his opinion that 70% of the impairment was attributable to the injury sustained in December 2008, 30% of the impairment being attributable to the old injury.

70.Plaintiff’s counsel, Mr Clough, submitted that this was entirely wrong. The old injury should not be an issue in this case, he argued. This was because the doctor had not directed his attention to ‘the three-stage test’. Mr Clough did not condescend to give details of this three-stage test nor did he indicate in his written submissions where the test may be set out in medical literature. Counsel for the Defendants said nothing of this test.

71.The test, I take it, must be one aimed at showing that an old injury is, in part at least, causative of any discomfort brought about in the main by a later injury.

72.I accept of course that the mere existence of a pre-existing injury does not advance matters. What must be demonstrated is that the pre-existing injury has in some way combined with the impairment brought about by the later injury to add to the sum total of that impairment. This, as I see it, is a matter of causation.

73.In the present case, Dr Chun had before him two injuries. He was satisfied that the injury occasioned in December 2008 had reached maximum medical improvement, objective examination revealing no more than mild residual stiffness in left ankle dorsiflexion and plantar flexion. There was no evidence of loss of bone density or post-accident arthritis. In respect of this injury, the prognosis was good. The fact remained however that there was a recognised residual degree of stiffness and discomfort to the area of the left ankle. Dr Chun was of the view that the earlier fracture which had still not knitted together could to a minor degree be contributing to this stiffness and discomfort. On its own, I agree that the terminology of the doctor’s statement sounds speculative. But it was not for the doctor to speak in legal language, it was the him to speak in medical language and this he did by proceeding to state that he would “apportion 30% of this impairment” – that is, the overall impairment to the left ankle – to the old injury. This was an unequivocal statement to the effect that, in his opinion, part of the cause of the impairment to the area of the Plaintiff's left ankle was occasioned by the old injury.

74.The doctor, of course, was speaking of the position almost exactly 3 years after the December 2008 accident. He was speaking of bodily impairment as at that time. On a consideration of all the evidence, it would seem to me that the trauma of the injury sustained in December 2008 would have been entirely dominant until that injury had had time to heal. Dr Chun's assessment was made at a time when he was satisfied that the December 2008 injury had healed. He was then looking at overall impairment and, in doing so, determined that the old injury did have a causative nexus to that overall impairment.

75.In such circumstances, I am satisfied that, in assessing appropriate damages, the injury to the left ankle pre-existing at the date of the December 2008 accident must be taken into account.

PAIN, SUFFERING AND LOSS OF AMENITIES

76.The Plaintiff has claimed $450,000 under this heading. In answer, it is contended on behalf of the Defendants that, after a 30% discount to take into account the Plaintiff's pre-existing condition, no more than $105,000 should be awarded.

77.To enable me to compare the injury in this case with injuries in similar cases, a number of authorities were put before me.

78.One authority put before me by Mr Clough for the Plaintiff was that of Chan Sik Pan v Wylam’s Service Limited and others HCPI 648/1995 in which the Plaintiff suffered a fracture to the left heel. Expert evidence found that it had healed well without any deformity. However, with prolonged walking, especially over uneven ground, or standing for a prolonged period, there was a degree of stiffness and pain in the area of the left ankle. There was also some limitation of movement in the sideways movement of the ankle. The prognosis according to the judge, Suffiad J, was that the disability to the ankle was likely to worsen with time. What must be said is that the Plaintiff suffered other injuries in addition to the fracture: concussion and a blow to the left elbow which caused pain for a prolonged period after the accident. Having himself looked at a number of relevant authorities, the judge observed that the range of awards for ankle fractures, depending on the degree of resulting disability, varied between $150,000 and $400,000. The judge was of the view that the injury sustained fell short of the ‘serious category’ of injury. He awarded $350,000.

79.The same quantum was awarded in a second case submitted by Mr Clough, that of Yip Chung Man v Secretary for Justice HCPI 485/2001 in which a 35-year-old police Constable sustained a fracture of the right ankle. The judge, Sakhrani J, accepted that the Plaintiff was left with residual pain and stiffness in his ankle. He further accepted that there was a mild degree of degenerative osteoarthritis (which does not apply to the present case) and that, because of his injuries, the Plaintiff could no longer enjoy basketball, soccer or jogging.

80.On behalf of the Defendants, Mr Daniel Chan made reference to one authority in particular, saying that, although it was more serious than the present case, it was a good guideline. The case was that of Kwong Wan Kau v Yuen Wing Hong HCPI 142/2002, in which the Plaintiff sustained a compound fracture of the right ankle (distal fibula), the fracture being fixed with metal implants. He was discharged after 11 days with crutches. Several months later he underwent a further operation for the removal of the implants. A persistent infection delayed the healing of his wound. At the time of trial, the Plaintiff complained that he could not stand for prolonged periods of time nor walk particularly long distances. He suffered marked stiffness over the right ankle due to extensive scarring. He was awarded $350,000.

81.Having considered all the authorities put before me, I am of the view that the Plaintiff's case is not quite as serious as the cases to which I have just referred. In my opinion, an appropriate amount for pain, suffering and loss of amenities would be the figure finally proposed by Mr Clough, that is, $325,000.

82.I do not accept the submission made on behalf of the Defendants that this figure should be discounted by 30% in order to take into account the Plaintiffs pre-existing injury. As I have said, the evidence indicates that the trauma of the injury sustained in December 2008, together with its loss of amenities such as the ability to play sport, would have been entirely dominant until that injury had had time to heal.

83.However, in assessing damages for pain, suffering and loss of amenities, the courts must look to the future as well as the past. On the basis, first, that I am satisfied that the Plaintiffs injury sustained in December 2008 had healed by June 2010 and that from that time onwards the old injury must be taken into account, and, second, on the basis that in the future the Plaintiff can expect some residual discomfort due in part to the old injury, I am of the view that an equitable discount would be one of 10%.

84.In the result, I am satisfied that an appropriate figure for pain, suffering and loss of amenities is a sum of $292,500. 

LOSS OF PRE-TRIAL EARNINGS AND MPF CONTRIBUTIONS

85.Counsel were unable to agree the correct amount being earned by the Plaintiff at the time of his accident. On behalf of the Plaintiff, it was submitted that the true figure should be $23,400 per month (plus an undisputed contribution to the Mandatory Provident Fund). On behalf of the Defendants, it was submitted that the true figure should be less, that is, $22,133.33 per month. No purpose is served in the context of this judgment in explaining the various vouchers and the like at length. Suffice to say that, on the available evidence, I am satisfied that the figure proposed on behalf of the Plaintiff – which is an average figure – is correct. I will proceed therefore on the basis that at the time of his accident the Plaintiff was earning $900 per day as a scaffolder in the employ of the 1^st Defendant and that he was working on average 26 days per month: this making a total of $23,400 per month.

86.This leads to a further disputed matter, namely, the period of sick leave to which the Plaintiff is entitled.

87.The Plaintiff, it appears, was granted sick by Government doctors from the date of his accident to 17 June 2010. Thereafter he was granted a limited period of sick leave in October and November 2012 and a couple of days in May 2013, the leave being granted by private doctors.

88.On behalf of the Defendants, however, emphasis was placed on the opinion of Dr Chun that a reasonable period of sick leave should have expired on 17 June 2010. It was on 17 June 2010 that the Plaintiff was seen by a doctor of the Orthopaedics and Traumatology Department at Queen Mary Hospital who found him to be orthopaedically fit and not in need of any further sick leave.

89.It needs to be repeated that it was on 17 June 2010 that the Plaintiff apparently asked for further sick leave so that he could take driving lessons. His request was refused. Thereafter the Plaintiff consulted a private doctor who granted him sick leave. Dr Chun was of the view that the additional sick leave granted thereafter by the private doctor was not justified.

90.In its judgment in Tam Fu Yip Fip v Sincere Engineering & Trading Co. Ltd [2008] 5 HKLRD 210, the Court of Appeal held that a judge is not bound by the mere issue of sick leave certificates. Such certificates constituted evidence that had to be evaluated in the light of all the available evidence including the medical evidence placed before the court. In this regard, Le Pichon JA said (page 215):

“Since the plaintiff's pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period.” [My emphasis]

91.In the course of his submissions, counsel for the Defendants, Mr Daniel Chan, accepted that, upon the expiration of a reasonable period of sick leave (that sick leave, in the present case, reasonably expiring on 17 June 2010), a further reasonable period should be allowed to enable the Plaintiff to find employment again. Mr Chan submitted that the overall sick leave period should therefore be extended to 1 September 2010 but no further.

92.I agree with Mr Chan’s submission.

93.As for the sick leave granted in November 2012, I am not satisfied that it can be demonstrated on the probabilities to be related to the December 2008 accident. I do not therefore take it into account.

94.In the result, I am satisfied that the Plaintiff should be entitled to claim for sick leave for a period of 20.3 months to which MPF at the rate of $1,000 per month must be added. This totals $495,320.

95.As to the amount of MPF, it was stated on behalf of the Defendants that, while it is calculated at 5% of salary, it is subject to a maximum (in the Plaintiff's case) of $1000 per month. This was not disputed by counsel for the Plaintiff.

96.On behalf of the Defendants, it was submitted that this sum should be discounted to take into account the old injury. I do not agree. As I have said earlier, a realistic approach makes it plain, I think, that the trauma of the December 2008 injury would have been entirely dominant until the injury had healed.

97.On the evidence, I am satisfied that the Plaintiff, if he had wished, would have been in a position to take up his old job as a scaffolder from September 2010, this being more than 20 months after his accident of December 2008.

POST-TRIAL LOSS OF EARNINGS OR EARNING CAPACITY

98.For the reasons already set out, I dismiss the Plaintiff's claim for post-trial loss of earnings. However, that leaves the issue of the Plaintiff's loss of earning capacity brought about by his injury in December 2008. In my opinion, there is a real risk that the Plaintiff may lose his employment in the future and, as a result of his injury, be at a disadvantage in obtaining comparable employment.

99.In this regard, I take into account a number of factors. First, Dr Chun himself accepted that, although the Plaintiff was able to return to his work as a scaffolder, it would be with a mild reduction of his working efficiency. Despite his experience, therefore, this will leave the Plaintiff more vulnerable to the loss of employment in an industry (that is, the construction industry) that is recognised as being volatile. Second, although I am satisfied that the Plaintiff greatly exaggerated the frailty of his condition, I do accept that from time to time, especially if extra stress is placed on his left ankle, he may suffer intermittent pain which may make him more vulnerable to taking time off work and the like and therefore more vulnerable to losing his employment. Third, the factors that make him more vulnerable to losing his employment must also work against him in regaining employment, especially as he grows older. Fourth, the scaffolding trade is clearly a specialised trade. As such, openings in the trade are not as plentiful as they may be in other trades, especially for somebody like the Plaintiff who is not able to work at maximum efficiency.

100.In the circumstances, I am of the view that a reasonably substantial sum should be awarded by way of compensation for loss of earning capacity. I further accept that, as it relates to future loss of earnings, it must include the 30% discount attributable to the Plaintiff's old injury. In my judgment, after the 30% discount, a sum of $245,000 should be awarded.

SPECIAL DAMAGES

101.The Plaintiff has claimed special damages in the sum of $20,937. This is made up of medical expenses in the sum of $8,937, travelling expenses in the sum of $4,000 and nourishing food in the sum of $8,000. On behalf of all the Defendants, while the claim for medical expenses is agreed, it is said that the two remaining items are excessive and unreasonable. Adopting a broad-brush approach, it is said that a sum of $15,000 would adequately compensate the Plaintiff for his special damages including medical expenses. I would put the amount a little higher than that, at $16,000.

THE SUMMARY TABLE

102.By way of summary, therefore, the amount due to the Plaintiff is the sum of $427,763 made up as follows:

Pain, suffering and loss of amenities	$292,500
Pre-trial loss of earnings	$495,320
Loss of earning capacity	$245,000
Special damages	$16,000
Sub-total	$1,048,820
Less Employees’ Compensation	$621,057
Balance	$427,763

INTEREST

103.Interest is awarded on the award of general damages, that is, for the pain, suffering and loss of amenities and for loss of earning capacity, at 2% per annum from the date of service of the writ to the date of judgment together with interest on the award of the balance at half the judgment rate from the date of the accident to the date of judgment.

COSTS

104.There will be an order nisi that the Defendant do pay the Plaintiff’s costs of the action to be taxed if not agreed. It is further directed that, if applicable in this case, the Plaintiff's own costs be taxed pursuant to the Legal Aid Regulations.

Mr Neal Clough, instructed by B Mak & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Daniel K K Chan, instructed by Winnie Mak, Chan & Yeung, for the 1^st & 2^nd defendants