Gurung Devchandra v. Pacific Construction (HK) Co Ltd and Others
Read the full judgment text of HCPI 138/2011 on BabelCite. This High Court CFI judgment was delivered on 14 July 2014.
1. On 27 February 2009 the plaintiff sustained personal injuries in the course of his employment with the 1 st defendant as a steel rigger at the construction site at Stonecutter Bridge North, Tsing Yi, New Territories.
Cites 15 cases
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HCPI 138/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 138 OF 2011 _________________
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________________________ J U D G M E N T ________________________ 1.On 27 February 2009 the plaintiff sustained personal injuries in the course of his employment with the 1st defendant as a steel rigger at the construction site at Stonecutter Bridge North, Tsing Yi, New Territories. 2.The plaintiff was a young man of 39 years old at the time of the accident. He is presently 44 years old. He was working in the construction industry for about 7 to 8 years before the accident. He was employed by the 1st defendant in October 2008 and had worked for the 1st defendant for about 4 months before the accident. 3.There is no dispute that the plaintiff has claimed employees’ compensation and has received $275,000 awarded to him as employees’ compensation. 4.On 25 February 2011 the plaintiff commenced these proceedings against the defendants for damages for personal injuries. 5.By an order made by consent on 6 April 2011 it was ordered that interlocutory judgment on liability be entered for the plaintiff against the defendants with damages to be assessed and costs. 6.This is the trial of the assessment of damages. 7.I heard evidence from the plaintiff. 8.I also heard evidence from the plaintiff’s orthopaedic specialist Dr Chan Tun Kut (“Dr Chan”) and from the defendants’ orthopaedic specialist Dr Lam Kwong Chin (“Dr Lam”) who jointly examined the plaintiff on 27 January 2011 (“the joint examination”). Their findings are detailed in their joint report dated 10 February 2011 (“the joint report”) and their supplemental report dated 1 September 2011 (“the joint supplemental report”). 9.Prior to the joint examination of the plaintiff Dr Lam had already examined the plaintiff on 25 September 2009 with his findings and opinion as set out in his report dated 30 March 2010. 10.There is a large area of agreement between Dr Chan and Dr Lam but there are some areas of disagreement. These relate to the extent of the plaintiff’s injuries and whether the plaintiff had any pre‑existing degeneration in the spine. There was also disagreement as to the reasonableness of the sick leave granted to the plaintiff and whether there was wasting in the left leg of the plaintiff. 11.There is no dispute that on 27 February 2009 the plaintiff was lifting an “I” steel beam weighing about 40 kg to 50 kg at work when he sustained an injury to his back. According to his statement made on 25 March 2009 in respect of his employees’ compensation claim, the plaintiff sprained his back at the time. 12.According to what the plaintiff told Dr Chan and Dr Lam at the time of the joint examination on 27 January 2011 he was lifting a 1.5 meter long metal beam estimated to be around 50 kg in weight from the ground when he felt the sudden onset of back pain when the beam was at chest level and he then sat on the ground. The plaintiff told Dr Chan and Dr Lam that he did not have particular twisting of back, direct hit by objects nor did he fall. 13.As a result of the accident the plaintiff sought treatment as has been well documented in the contemporaneous medical notes and the reports in evidence. 14.The plaintiff first sought treatment after the accident on 27 February 2009 at Quality HealthCare Medical Centre which was provided by his employer. An X‑ray taken on that day showed that there was no fracture or dislocation. The alignment of the lumbar spine was satisfactory. There was no bony destruction. A degenerative change with bony spur at L3/4 and L4/5 was noted. 15.On 3 March 2009 an X‑ray of the lumbar spine was also taken which showed normal bone density and normal alignment. The disc space and pedicles were intact and there was no fracture shown. 16.It is also clear on the evidence that from about March 2009 to October 2011 the plaintiff attended the Accident and Emergency Dept of Tuen Mun Hospital (“TMH”) and Pok Oi Hospital as well as the Department of Orthopaedics and Traumatology (“DOT”) at TMH. The plaintiff also received outpatient physiotherapy and occupational therapy at TMH. The attendances and the treatment of the plaintiff are well documented in the medical notes and reports in evidence. 17.On 15 August 2009 an MRI scan of the lumbar spine was performed on the plaintiff (“the MRI”). The findings are contained in the report from the Hong Kong Health Check and Medical Diagnostic Centre dated 15 August 2009. The comment of the radiologist as set out in the report is that the MRI showed:
18.The medical history since the accident has been fully set out in the joint report and has been agreed between Dr Chan and Dr Lam. 19.I have no hesitation in preferring the opinion evidence of Dr Lam to that of Dr Chan where there is disagreement between them. 20.I would observe that in the revised statement of damages dated 2 November 2011, which was accompanied by the plaintiff’s statement of truth of the facts stated therein, the plaintiff pleaded at sub‑paragraph (20) under (B) Particulars of injuries, treatments received, permanent disabilities sustained and prognosis that:
Thus it was the plaintiff’s case as confirmed by his statement of truth that at the date of the revised statement of damages he still suffered from the problems as pleaded. 21.There was no evidence of what his complaints were at the time of trial as neither counsel asked him about this. I would observe that the plaintiff did walk in and out of the witness box without difficulty and without any walking aid. 22.In my view the plaintiff was neither a credible nor a reliable witness. He disputed some of the contemporaneous records of the physicians attending him when he went for treatment in hospital. However, there is no valid reason to doubt the accuracy or reliability of the contemporaneous notes of the attending physicians. 23.At the end of his evidence the plaintiff for the very first time said that the occasion on 27 February 2009 when he lifted the beam and sustained his back injury was the only occasion that he had been asked to carry beams as heavy as 40 kg to 50 kg. He had never mentioned this before either in his pleading or in his witness statement. I do not believe him. 24.What he said at the end of his evidence was contradicted by what he had told Dr Chan and Dr Lam at the joint examination namely, that other than working as a bodyguard and personal driver for two years, “he had worked as a construction site rigger all along. He said he had to lift loads up to 30 to 50 kg during work.” 25.It was also contrary to his witness statement, which stood as his evidence‑in‑chief, where he described his job before his accident. At paragraph 6 he said that he was employed as a construction site rigger. He described his job duties as follows:
26.What the plaintiff said at paragraph 6 of his witness statement clearly contradicted his evidence that the first time that he carried weights of 40 kg to 50 kg during work was the occasion when he had the accident on 27 February 2009. 27.I would also observe that according to the OT Rehabilitation Outcome Report when the plaintiff underwent a work capacity evaluation by the occupational therapist at TMH on 15 December 2009 it is recorded that his work history and demands of his occupation included:
28.It is abundantly clear that the plaintiff had been saying all along that his job duties included carrying weights of 40 kg to 50 kg and it was only at the end of his evidence that for the very first time he said that he had never carried heavy weights of 40 kg to 50 kg at work until the occasion when the accident occurred. As I have said, I do not believe the plaintiff. He is neither a credible nor a reliable witness. 29.As mentioned in the joint report, Dr Lam was of the view that the multiple disc bulging found in the MRI was due to degeneration as well as the findings of bony spur in the X‑ray at L3/4 and L4/5. He was of the view that the plaintiff had suffered a left side back pain of soft tissue origin. He went on to say “Though he has left lower limb complaints, the MRI has already excluded nerve root compression or other pathology causing radiculopathy”. 30.Dr Chan, however, was of the view that the presence of L4/5 and L5/S1 posterior annulus tear showed that the plaintiff had acute injury to the corresponding discs. In the joint supplemental report Dr Chan opined that annulus tear and disk herniation could be due to traumatic injury or degeneration. He was of the view that it was more likely that the annulus tear and disk herniation in the plaintiff’s case was caused by trauma rather than degeneration. 31.I much prefer the evidence of Dr Lam to that of Dr Chan. It was pointed out in the joint report that the doctor at DOT of TMH reported that the MRI showed “multiple bulging disc but no definite dural sac nor nerve root compression ….” Dr Lam said that he concurred with his orthopaedic colleague at TMH who commented that the plaintiff had multiple bulging disc but no definite dural sac nor nerve root compression. There was no neurological deficit. 32.I would also observe that in the consultation note for the consultation on 16 December 2009 by DOT at TMH, it was also recorded that there was no neurological deficit. 33.Dr Lam was adamant when giving evidence that the bony spur shown in the X‑ray was a degenerative change which was present before the accident on 27 February 2009. He also emphasized in evidence that the multiple bulging discs shown in the MRI could not have been caused by a single accident on 27 February 2009 when the plaintiff was lifting a weight of about 50 kg. He also opined that the presence of desiccation (loss of water content) showed that the plaintiff had long standing disc degeneration particularly in multiple discs. His view was that the multiple bulging discs were due to degeneration. The MRI did not show nerve root compression. I accept the evidence of Dr Lam and prefer his evidence to that of Dr Chan which I reject. 34.Dr Lam was of the view that the plaintiff has exaggerated his symptoms at the time of his examination on 25 September 2009 and also at the time of the joint examination on 27 January 2011 as set out in the joint report. 35.No doubt whether a patient feels pain and to what extent he feels pain is a subjective matter. What Dr Lam said was that there were obvious objective findings which did not support the plaintiff’s symptoms. These are set out in the joint report. 36.It is significant that on examination the plaintiff complained of increase in back pain on vertex pressure, left shoulder elevation, shoulder pressure, pelvis rotation and skin pinching. These were simulation tests which apparently related to the back, but in fact were not. Dr Lam was of the view that if obvious back pain was described by the patient in these tests, there was some exaggeration or functional overlay. He explained that these tests were to trick the patient and that these tests actually had no relation to the back. The plaintiff did complain of increase of back pain in these tests and as Dr Lam said, if a patient really has pain, he would say that there was no change when undergoing these tests. There should not have been an increase of back pain when these tests were done. 37.I accept Dr Lam’s evidence. I am satisfied and find that the plaintiff has exaggerated his symptoms and his back pain. 38.I would observe that even as late as 2 November 2011, the date of his revised statement of damages, the plaintiff still complained of the matters set out in his pleading as set out above. 39.I would also refer to the consultation note from OT at TMH in respect of the consultation on 17 November 2009. In respect of the straight leg test (SLR) conducted on the plaintiff on that day the SLR showed when the plaintiff was in a supine position the SLR on the left was 60° and on the right it was 70°. It was noted that the plaintiff sat up on the bed promptly with hips flexed at 90°. The SLR in the sitting position was 80° bilaterally. 40.Also, in the joint examination by Dr Chan and Dr Lam on 27 January 2011, the SLR was 40° for the left and 70° for the right. However, when the same test was performed in the sitting position, it was 80° bilaterally. There is no dispute that 80° bilaterally was normal as is clear from the evidence of both Dr Chan and Dr Lam. 41.Dr Lam explained in evidence that when doing the sitting SLR test, the patient does not know that the test is the same test as the SLR test done in the supine position. He said that they pretend that they are doing some other test during which the leg is raised so that the patient does not know that the same test as the SLR test done in the supine position was being performed whilst in the sitting position. 42.At the joint examination when the plaintiff’s back was examined it was also found that there was:
43.Dr Lam also observed that the findings in late 2009 on a review of the clinic records included a finding that there was:
44.Dr Lam explained in evidence that tenderness was in response to pain and was subjective whereas whether there was muscle spasm was something that could be tested objectively. As there was no muscle spasm Dr Lam was of the view that there was an objective finding that there was nothing abnormal in that area. I accept the evidence of Dr Lam. 45.In the surveillance videos in respect of which the plaintiff was cross‑examined, for the surveillance on 13 May 2009, the plaintiff was observed to have been walking with the aid of an umbrella held in his left hand. He was using the umbrella as an aid leaning on his left side to walk. He was also observed to descend stairs holding the railing. 46.However, for the video surveillance about a year later on 5 July 2010, the plaintiff was observed walking more prominently and actively. Although he disagreed with the suggestion that he was walking at a pace similar to the pace of his niece shown in the video, in my view, there was a marked improvement in his mobility. In my view, he was walking more prominently than in the previous video clip taken a year earlier. Although he was holding an umbrella in his left hand, it did not appear that he had difficulty in walking. He was not walking with a limp. Also, he was able to climb stairs without difficulty and without holding the handrail. 47.Dr Lam was also of the view that the walking aid held by the plaintiff in his left hand was not consistent with someone having genuine walking difficulty. He emphasized that the correct and natural way was to hold the walking aid on the less painful side, namely his right side, so as to shift the weight away from the painful side. 48.Dr Chan agreed that the correct and natural way was to hold the walking aid on the right side but he was of the view that an uneducated patient may use the walking aid on the wrong side. 49.It was submitted by Mr Cheung, for the plaintiff, that the plaintiff’s treating physicians knew that the plaintiff was using the stick or umbrella on the wrong side but that there is no record in the notes to show that the plaintiff was advised of this. There is no merit in this submission. The plaintiff was cross‑examined about the OT consultation note of the consultation on 16 December 2009 where it was recorded that the plaintiff “walks with an umbrella but not much leaning to L side”. It was put to him in cross‑examination that he was not leaning much on the umbrella as he didn’t need it and the plaintiff said that the doctor also suggested to him not to lean on the left side much because it would be painful on the left side. 50.Dr Lam emphasized that it was unnatural for the plaintiff to use a walking aid on the side that he felt pain. It was natural to use the walking aid on the other side to shift the weight away from the left side. Even if he were an uneducated patient not knowing which hand to use the walking aid, he would find out soon enough as he would feel more pain using the walking aid in the left hand, as Dr Lam said. It seems to me that this is obvious and the fact that the plaintiff was using the umbrella in his left hand as a walking aid as recorded in some of the notes of the attending physicians and as shown in the video surveillance supports the view that the plaintiff has been exaggerating his symptoms. 51.Dr Lam and Dr Chan disagreed on whether there was wasting in the left lower limb of the plaintiff. The measurements taken at the joint examination showed that the girth of the right thigh was 46 cm when compared with the left thigh at 45 cm. The girth of the right calf was 37 cm when compared with the left calf at 36 cm. Thus, there was a discrepancy of 1 cm between the left thigh and calf and the right thigh and calf. 52.Dr Chan was of the view that the measurements showed that there was wasting of the left lower limb. Dr Lam, however, was of the view that a discrepancy of 1 cm was a rather minor one for the plaintiff who is of muscular build. It should not be regarded as clinically significant. Dr Lam relied on the guidelines in the American Medical Association’s Guides, 5th Edn which supported his view that the discrepancy of 1 cm was clinically insignificant. 53.I prefer the opinion of Dr Lam to that of Dr Chan. I find that there was no wasting of the calf and thigh and that the small difference of 1 cm between the right and left limb was clinically insignificant. Dr Lam opined that if a patient has recovered well there will be no muscle wasting. I accept Dr Lam’s evidence. 54.I would also observe that in the consultation on 13 May 2009 at OT TMH, it is recorded in the consultation note that there was:
At the medical examination at OT TMH on 13 May 2009 the doctor found that there was no wasting of the calf and thigh and that there was full power on thigh abduction (opening) and adduction (pressing). 55.On the evidence the plaintiff was granted a total sick leave period of 421 days from 27 February 2009 to 5 June 2010. 56.Dr Lam was of the view that the period of sick leave granted to the plaintiff was excessive and unnecessary. He was of the view that it would have been appropriate to have allowed the plaintiff sick leave until August 2009 when the MRI has excluded definite pathology. In his view 6 months sick leave was appropriate. 57.Dr Chan was of the view that the sick leave granted to the plaintiff was appropriate. 58.I much prefer the evidence of Dr Lam to that of Dr Chan. 59.The plaintiff suffered a back injury of soft tissue origin and Dr Lam’s evidence was that 6 months sick leave was appropriate for the plaintiff. Mr Gidwani, for the defendants, in his closing submissions submitted that the plaintiff should have been able to start working from 27 November 2009, ie 9 months after the accident. I agree. This would have been a reasonable period after the accident for the plaintiff to have been able to start working. 60.As Le Pichon JA said in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at paragraph 18:
61.As regards the quantum of damages, in the course of the trial it was agreed that the pre‑accident income of the plaintiff when employed by the 1st defendant was $13,500 per month. 62.The multiplier for loss of future earnings was agreed at 9.54. 63.Loss of earning capacity was agreed at $70,000. 64.Special damages were also agreed in the sum of $7,500. 65.It was also agreed in the course of closing submissions that the plaintiff had lost the sum of $683 per month as a Taekwondo tutor for students doing upgrade tests and that the plaintiff was entitled to this monthly sum as part of his pre‑trial loss of earning as well as for loss of future earnings using the agreed multiplier of 9.54. On the undisputed evidence prior to the accident the plaintiff had achieved a Grade 2 Dan certification from the Hong Kong Taekwondo Association. It was accepted that as a result of the accident the plaintiff could no longer fully enjoy Taekwondo activities to the high level as he enjoyed prior to the accident. 66.Mr Gidwani also submitted that the plaintiff’s pre‑existing degeneration of the spine prior to the accident was not relevant and did not affect the quantum of damages in this case. The defendants did not seek a reduction in damages to be awarded to the plaintiff because of the plaintiff’s pre‑existing condition. The degeneration was mild unlike the degenerative condition in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 which was quite severe. 67.It seems to me that no reduction should be made to the damages to be awarded on account of the plaintiff’s pre‑existing condition. Pain, suffering and loss of amenities (“PSLA”) 68.The plaintiff seeks an award of $250,000 to $350,000 under this head. Mr Cheung referred to a number of authorities in particular, Lee Yu Hey v Yuen His Carl (DCPI 546/2011, 31 October 2010), Mohammad Waheed Khan v Rising Sun Transportation Company Ltd (HCPI 241/2010, 10 December 2012), Fong Yuet Ha v Success Employment Services Ltd (HCPI 345/2009, 18 April 2012), Ho Wing Sai v Wong Muk Hung trading as Lake Fat Transport Company (HCPI 787/2000, 31 May 2005) and Ken John Geissler and another v Chan Kim‑Chung and another (HCPI 1/2000, 28 March 2002). 69.Mr Gidwani submitted that the award for PSLA should be about $150,000 taking into account the plaintiff’s inability to enjoy his Taekwondo activities to the high level that he was enjoying prior to the accident. As I have said, he was certified by the Hong Kong Taekwondo Association to Grade 2 Dan. 70.Mr Gidwani referred to Chan Kam Hoi v Draggages et Travaux Publics [1998] 2 HKLRD 958, So Wang Chun v Rainforce Ltd and others [2008] 3 HKC 196, Tamang Rabichandra v VSL SWC (a firm) and another (HCPI 659/2007, 17 September 2008), Tamang Udas v Global Sunny Engineering Ltd and another (HCPI 732/2011, 7 January 2013), Mohammad Waheed Khan (supra), Sherma Phadindra v Tin Wo Engineering Co Ltd and another (HCPI 32/2011, 8 November 2012), Gurung Lachhaman v Gurung Chandra Prakash trading as Metro‑Construction Company and others (HCPI 672/2008, 29 October 2010), and Mandeep Singh v Southwell Construction Co. Ltd and another (HCPI 575/2005, 22 September 2006). 71.I have considered the submissions and the authorities cited to me. Each case, of course, depends on its own facts. 72.I have also considered the plaintiff’s loss of amenities in not being able to participate in Taekwondo activities to the high level that he was used to before the accident. As I have said, there was agreement as to his loss of income as a Taekwondo tutor for students doing the upgrade tests. 73.In my judgment, the appropriate award to the plaintiff for PSLA is $160,000 and this is the award I make. Pre-trial loss of earnings 74.The plaintiff gave evidence that after the expiry of his sick leave he found employment as an accounting clerk earning $5,500 per month. He started working for the Shangri‑La Curry House in Yuen Long from 2 April 2011 as an accounting clerk earning $5,500 per month. He worked there for 6 months until October 2011. 75.He then found a job as a security guard with ISS Adams Secuforce Limited (“ISS”) from 29 November 2012 at $45.80 per hour. He resigned after a few days. He said that it was difficult for him to stand for 12 hours duty and that was the reason why he resigned. 76.The plaintiff also said that in April 2013 he was employed as an auxiliary guard for Double Security Ltd between April 2013 and September 2013. He resigned in September 2013 as he had to take his mother back to Nepal. He accompanied his mother to Nepal and that was the reason he left his job with Double Security Ltd. I would observe that he did not leave his employment with Double Security Ltd because the job was too demanding or because of language difficulties. 77.The plaintiff said that when he returned from Nepal in about January 2014 he was unable to find a job there which suited his time. 78.Although Dr Lam said that the plaintiff could return to his pre‑accident work at a construction site with some reduction in work efficiency and endurance due to residual pain, I am satisfied that it would not be suitable for him to return to work as a steel rigger at construction sites where he would have to constantly lift beams weighing 40 kg to 50 kg. Both Dr Chan and Dr Lam said that the plaintiff should be able to work as a security guard although they disagreed as to when the plaintiff was fit to work. 79.I have already found that the plaintiff has exaggerated his symptoms and that he should have been able to return to work 9 months after the accident. I find that the plaintiff should be able to work as a security guard. 80.Mr Cheung submitted that the plaintiff could have earned an average of $7,425 monthly from his earnings as a security guard at Double Security Ltd. It was accepted that there was no evidence that the work was too physically demanding and that the plaintiff could have continued to work there. He invited the court to find that the plaintiff could have earned $7,425 per month from 26 April 2013 to trial. 81.The plaintiff was cross‑examined about his pre-accident employment when he worked as a security guard shortly before he commenced working for the 1st defendant in October 2008. The plaintiff agreed that prior to the accident he would have been able to earn between $11,000 and $13,000 as a security guard. 82.It is agreed that the plaintiff was earning $13,500 per month working for the 1st defendant at the time of the accident. It seems to me that, as admitted by him in cross‑examination, prior to the accident he would have been able to earn between $11,000 and $13,000 per month as a security guard which averages to $12,000 per month. 83.In my view, in calculating loss of earnings it is not appropriate to take the earnings of $7,424 per month as invited by Mr Cheung. I would observe that for the month of May 2013 the plaintiff earned $9,000. I have already found that the plaintiff has exaggerated his symptoms. In my view, it would be reasonable to assess his pre‑trial loss and future loss having regard to what he would have been able to earn as a security guard namely, $12,000 per month, being the average of $11,000 and $13,000 per month. 84.I would assess the pre‑trial loss of earnings including loss of MPF benefits as follows:
85.The plaintiff is also entitled to his pre‑trial loss of income as a Taekwondo tutor which has been agreed at $683 per month. The pre‑trial loss of this income is assessed at $43,712 ($683 x 64 months). 86.The total pre‑trial loss of earnings is assessed at $257,912 ($127,575 + $86,625 + $43,712). Loss of future earnings 87.The plaintiff is also entitled to loss of future earnings including loss of MPF benefits in the monthly sum of $1,500 for the agreed multiplier of 9.54. The award for loss of future earnings is $180,306 ($1,500 x 12 months x 1.05 x 9.54). 88.He is also entitled to loss of future income as a Taekwondo tutor for the agreed multiplier of 9.54 amounting to $78,190 ($683 x 12 months x 9.54). 89.The total loss of future earnings is assessed at $258,496 ($180,306 + $78,190). Summary 90.I summarise the above awards as follows:
91.The plaintiff is also entitled to interest on the award for PSLA at 2% per annum from date of writ 25 February 2011 to judgment and on the award for special damages at half judgment rate per annum from date of accident 27 February 2009 to judgment. 92.I also make an order nisi that the defendants should pay the plaintiff his costs to be taxed, if not agreed, on the District Court scale.
Mr Albert Cheung, instructed by Lim & Lok, for the plaintiff Mr Victor Tulsi Gidwani, instructed by Cheng, Yeung & Co, for the 1st and 2nd defendants | |||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 138/2011