CHOW KA KAT v. YIU HSING DEVELOPMENT LTD

bjbj HCPI 495/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES Action no. 495 of 2010 ____________ BETWEEN Chow Ka Kat Plaintiff Yiu Hsing Development Limited Defendant ____________ Coram: Master de Souza in Court Date of Hearing: 7, 8 & 9 May 2012 Date of Judgment: 19 June 2012 _______________ J U D G M E N T _______________ I. INTRODUCTION This is an assessment of damages following the entry of interlocutory judgment by consent on 5 September 2011 for damages to be assessed in favour of the Plaintiff. II. The Facts The Plaintiff, Mr. Chow Ka Kat, brought suit against the Defendant, Yiu Hsing Development Limited, his employer for damages arising from injuries and loss he sustained in an accident at work. At all material times, the Defendant was operating a Chinese restaurant on the ground floor of the East Commercial Block at South Horizon in Ap Lei Chau, Hong Kong. It was a modest eatery with no more than about 20 tables for diners. The Plaintiff, aged 57 at the time of the assessment hearing and 53 when the accident befell him, was employed as the restaurant manager. There was a captain as well as a small number of waiting staff working under his supervision. On 26 June 2008 at about 10:15 p.m., the Plaintiff had to access the attic or the mezzanine floor above the restaurant that had been purpose built for storage of sundry goods and utensils of the trade to collect extra spoons required by customers. Access was via a steep and narrow staircase that was wet, greasy and slippery from frequent use by the staff including the kitchen hands. As the Plaintiff descended the staircase with a box of spoons, he lost balance, slipped and fell to the floor below and was knocked unconscious. He had landed on his head and right shoulder. iii. The Plaintiff s Injuries and Treatment The reports of the public sector hospitals as to diagnosis, treatment and care of the Plaintiff have been adduced as agreed evidence. They disclosed the following. The Plaintiff was admitted to the accident and emergency department of Queen Mary Hospital ( ) on the same day. The medical notes of the accident and emergency department dated 26 June 2008 and the report of Dr. Cheung Wai Yee dated 6 July 2009 revealed that the Plaintiff had lost consciousness for about 5 minutes but was conscious when examined and assessed. There was head injury, neck, back and right shoulder injuries with multiple bruises in his occipital and right shoulder regions. Redness over his chest, right elbow, back and right knee was discerned. X-rays of the chest, pelvis, cervical and lumbar spine and right shoulder showed no fracture. There was no wound and no operation was indicated. He was admitted to the neurosurgical unit initially and diagnosed to have sustained concussion. The medical report of Dr. L F Li of that department dated 5 June 2009 established that his vitals were stable and he was fully alert. There was no focal neurological deficit on admission but there were bruises over the anterior aspect of the right shoulder which had full range of movement. There was tenderness over the humerus and lateral aspect of the right elbow without associated bruises or wounds. There was some tenderness over the anterior chest wall with the right side more severe than the left. There was also tenderness over the left shoulder but no bruising. There was tenderness over both the lateral and medial aspects of the right knee with no reduction in the range of movement. There was some tenderness and bruising over his lumbar spine. The Plaintiff received X-ray examination of the chest, shoulder, lumbosacral spine, pelvis and knees as well as computer tomography (CT) of the brain. These radiological examinations were unremarkable. The Plaintiff being stable was transferred to Tung Wah Hospital on 28 June 2008 for symptomatic treatment. He however fell from his bed and was transferred back to QMH where another CT brain scan was conducted. The result was once again unremarkable. The Plaintiff was discharged from QMH on 3 July 2008 for convalescence at home. Regular follow-up at the outpatient clinic followed. The Plaintiff continued to complain of persistent episodic dizziness varying from mild to severe. Symptomatic oral medications were prescribed with no re-admission indicated. The diagnosis was minor head injury complicated by post-concussion syndrome. On 31 July 2008, the Plaintiff attended the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital ( AED PYNEH ) complaining of severe headache and dizziness associated with vomiting. The relevant report from Dr. Chu Po Ngai dated 8 June 2009 stated that the Plaintiff was admitted into the NS ward for treatment. 6 further visits for the same reasons to AED PYNEH between December 2008 and July 2009 followed. The Plaintiff required brief hospitalization in PYNEH on 3 occasions between December 2008 and February 2009. Owing to persistent shoulder pain, the Department of Orthopaedics & Traumatology of PYNEH referred the Plaintiff for physiotherapy that lasted for 40 sessions. The physiotherapy report indicated that there was fair progress with satisfactory improvement in the range of movement and fair progress of muscle power. The Plaintiff also received occupational therapy at that same hospital. On 12 January 2009, the Plaintiff attended the AED of Caritas Medical Centre ( ) by ambulance for headache, dizziness and vomiting and was hospitalized until 15 January 2009. The diagnosis was tension headache. The Plaintiff was first seen by the Department of Orthopaedics and Traumatology of QMH ( DOT QMH ) on 12 January 2009, his principal complaint then being right shoulder pain for 6 months and right upper limb numbness. The ensuing report of Dr. Yau Wai Pan dated 27 May 2009 disclosed a decrease in the range of motion of the right shoulder. The provisional diagnosis was right frozen shoulder. X-ray and MRI of the shoulder were arranged and the Plaintiff was referred for physiotherapy. The Plaintiff was reassessed on 9 March 2009 when it was noted that he had defaulted the MRI and physiotherapy appointments. The X-ray report showed that the right shoulder alignment and bone density were normal. No fracture was seen and the range of motion of the shoulder was similar to the earlier assessment. From the medical report of Dr. Yan Chun Hoi of DOT QMH dated 2 October 2009, an MRI of the right shoulder was performed on 15 June 2009 and it showed no evidence of rotator cuff tear or labrial tear. The clinical diagnosis was compatible with frozen shoulder. The Plaintiff was treated conservatively with analgesic and physiotherapy and his condition was said to be static during the last follow-up on 13 July 2009. He was last seen by this department on 7 February 2011. On 14 April 2009, the Plaintiff was referred to the Department of Clinical Psychology by the Department of Neurosurgery of QMH. Between 19 June 2009 and 21 September 2009, he attended for treatment on 6 occasions. The Plaintiff also received treatment from the outpatient clinic of Precious Blood Hospital ( ) in October 2008 and March 2009. Between November 2008 and July 2009, he was twice admitted to that hospital for symptoms of dizziness, headache and right shoulder pain. In May 2009, there was a further admission to this hospital for a condition entirely unrelated to the accident in question. IV. The Joint Orthopaedic Report The Plaintiff was jointly examined by Dr. Lung Ting Kwan, Peter ( Dr. Lung ) the orthopaedic expert for the Plaintiff and by Dr. Tsoi Chi Wah, Danny ( Dr. Tsoi ), the defence expert on 17 February 2011. Their diagnosis was severe right shoulder soft tissue contusion injury, complicated by frozen shoulder with partial recovery. The condition was said to be stable. The multiple soft tissue contusions had all recovered and were asymptomatic. Both experts opined that the treatment previously administered was standard and appropriate for the injury sustained. Dr. Tsoi remarked that the slow recovery could not be explained even when the complication of post-traumatic frozen shoulder was considered. He said that the actual degree of pain and disability was very likely to have been less serious than claimed by the Plaintiff. In his view, there was a high probability of exaggeration on the part of the Plaintiff. As regards the Plaintiff s complaint of continuing severe pain and stiffness significantly affecting his upper limb function, Dr. Lung observed that the tenderness extended well beyond the original injured area. He noted that there was also a 30 degrees discrepancy between the passive and active range of abduction with the MRI scan showing that the shoulder abductor tendons were intact. Dr. Lung was unable to offer any anatomical or pathological basis to account for these discrepancies and disproportional signs or symptoms. The Plaintiff s own expert then remarked: Exaggeration for secondary gains can be another explanation . Dr. Tsoi agreed that the Plaintiff had played up his condition for personal gain. Dr. Tsoi was firmly of the view that the Plaintiff was exaggerating his disability during the assessment. When his attention was distracted and with some assistance, the range of motion of the right shoulder improved. The absence of muscle wasting indicated no serious or major problem. Regarding further treatment and prognosis, both experts said the Plaintiff s right shoulder symptoms were stable and not deteriorating. There was minimal possibility of further deterioration with further treatment unlikely to produce any additional improvement. The prognosis was said to be good. According to Dr. Lung, the Plaintiff s shoulder injury would not be an impediment to his returning to work as restaurant manager provided it did not entail heavy lifting or heavy manual chores. Dr. Tsoi however opined that the Plaintiff could resume his pre-injury work as he possessed a very good capacity to do so. The Plaintiff was granted sick leave from 27 June 2008 to 1 April 2011. Both orthopaedic experts considered that sick leave of 9 months up to 1 April 2009 to be appropriate for the Plaintiff s shoulder injury complicated by frozen shoulder. Their opinion was confined to the Plaintiff s orthopaedic injury. V. THE Joint Neurological Examination This was jointly conducted by Dr. Lo Man Wai, the Plaintiff s specialist ( Dr. Lo ) and Dr. Kan Yiu Ting appointed by the Defendant ( Dr. Kan ) on 23 February 2011. The complaints presented varying in severity with no significant improvement despite regular treatment were giddiness and blurred vision, repeated bouts of vomiting, throbbing headaches requiring daily intake of painkillers, depression with attendant personality and behavioral changes, sexual dysfunction and cognitive impairment manifested as poor memory and absentmindedness. The Plaintiff claimed to the neurologists that he enjoyed perfect health prior to the accident, a fact belied by the medical history disclosing that he had suffered chronic right knee pain, right elbow problem, low back pain, hypertension, hyperlipidemia and a minor stroke in the past. This revelation plainly did not affect the independent neurological evaluation of the Plaintiff s condition. It is also a red herring in my view given that the Plaintiff was able to fully discharge his duty as manager and play basketball and jog regularly before he fell off the staircase at the restaurant. If it has any relevance, it is necessarily limited to the veracity of his evidence. The examination revealed that the Plaintiff had sustained a minor head injury complicated by post-concussion syndrome. As he scored poorly in the tests conducted, the experts were driven to the conclusion that his asserted neurological symptoms were not genuine. His performance in the tests was inconsistent and he gave many approximate answers to simple queries, features of gross exaggeration and even of malingering in their view. Dr. Lo, the Plaintiff s nominated expert, concluded that the Plaintiff had exaggerated his cognitive and memory impairment for the purpose of the litigation. Whilst he accepted that there was minor head injury with resulting headaches, Dr. Lo went on to observe it is difficult to ascertain the severity of his headache as it is a pure subjective complaint. Besides, the severity of his headache in terms of intensity and duration as reported by Mr. Chow, is rather disproportionate to the degree of his head injury. Hence, it raises suspicion that the severity of his headache may also be exaggerated . He concluded that the permanent impairment owing to migraine attacks was mild. Dr. Kan s interpretation of the test results was along similar lines. The concussion injury was very mild by any standard . In his opinion, the Plaintiff s meticulous memory of events immediately prior to the accident, his extremely poor performance in the MMSE test as also his description of defective cognitive capacity in his daily life were considered highly atypical of a patient with genuine brain injury. The Plaintiff s abysmal score of 10/30 when a score below 23/30 was generally seen in patients with dementia was inconsistent with his ability to converse freely and his behavior during the examination. As for the TOMM test to differentiate bona fide memory-impaired patients from malingerers, the Plaintiff clearly fell within the latter category. Dr. Kan remarked It can only be interpreted in one way: the candidate had so good a memory that he managed to choose the wrong answer most of the time . As for the Plaintiff s other complaints of headaches, giddiness, mood and sexual deterioration collectively termed Post Concussion Syndrome, Dr. Kan fairly admitted that they were common manifestations of mild concussion injuries. In his opinion, there was little reason to believe that these symptoms have not entirely subsided in the Plaintiff. He referred to these residual symptoms as largely fictitious . Both experts opined that the Plaintiff should have been able to return to his pre-accident employment after sick leave of 6 (Dr. Kan) to 9 months (Dr. Lo) from the date of the accident. VI. THE Surveillance Recordings The Plaintiff was secretly filmed on a number of occasions in 2009 and 2010. The recordings, albeit edited, captured him going about his daily affairs in an unremarkable and normal fashion. He was able to walk, negotiate staircases both up and down, sit and stand all normally as any able-bodied person might be expected to. He was seen shopping and carrying laden shopping bags in both hands with no apparent difficulty. One particular excerpt showed him holding for a period of time the overhead handrail with his right hand above his head that was supported by the raised arm and his left hand behind his back which was resting against the vertical handrail on the MTR. Another footage depicted him pulling himself up somewhat briskly with his right hand on the vertical bar from the seat to a standing position on the train with apparent ease. He was also seen reading and writing in a booklet while seated on the train and talking on his mobile phone in his right hand as he walked about. His observed behavior was nothing out of the ordinary and normal. Whilst it is true that the video captures did not show him lifting anything heavy to shoulder or even to a higher level, they are nonetheless evidential of the Plaintiff s physical state which I find on the evidence to be considerably better than the Plaintiff would have one accept. The Plaintiff was not a credible witness insofar as his account of the effect of the injury upon his daily and working life was concerned. He was prepared to embellish the severity of his injuries and their effect, a fact evident from his cross-examination. The Plaintiff testified that his shoulder problem was so disabling that raising his hand high to change a ceiling light bulb had become an impossible task. Yet the neurologists recorded the Plaintiff as telling them that he could and did such work at home. It was his evidence that in mid-2009, he could only lift about 3 catties, approximately 4 lbs in weight, a fact clearly contradicted by the physiotherapist s observation recorded in the Hospital Authority s Patient notes. In the period between May and September 2009, the Plaintiff was recorded as capable of lifting between 13 and 15 lbs in weight. The surveillance demonstrated that he had no difficulty shopping, lifting the shopping bags and carrying them away in both hands. I find the Plaintiff s veracity wanting. VII. Pain, Suffering and Loss of Amenities The Plaintiff s injuries were not particularly serious on the medical evidence even though he had briefly lost consciousness in the fall and his treatment had involved short periods of hospitalization with follow-up management and physiotherapy and occupational therapy sessions. He had sustained a severe right shoulder contusion injury complicated by frozen shoulder. Doubtless, there must have been a degree of pain and discomfort in the immediate aftermath of the accident. It is equally clear that he had exaggerated the severity of his pain and disability when he came to be examined by Dr. Lung and Dr. Tsoi who were in agreement that the contusion injury had fully recovered and should be asymptomatic. Both experts concluded that the residual symptoms and complaints inconsistent with and not readily explicable on their objective assessment have been exaggerated, possibly to bolster his claim. I agree. The orthopaedic experts concurred that the Plaintiff was fit to return to his pre-accident work as a restaurant manager after 9 months sick leave. Dr. Lung however qualified this finding by suggesting that the Plaintiff was unfit for any arduous work but he did fairly acknowledge that management would not normally entail heavy manual duties. This proviso aside, the experts were in broad agreement on their assessment. I prefer the evidence of Dr. Tsoi and find that the Plaintiff ought to be able to return to managing a restaurant without limitation. The expert neurological evidence previously summarized was even less controversial. Both experts were alive to the Plaintiff s tendency to exaggerate. They concluded that his relatively minor head injury with post-concussion syndrome presented no impediment to his returning to work in his former capacity. I agree with their findings that the neurological symptoms presented during the assessment were not genuine. A number of decisions under this head of claim were cited. They are fact sensitive and offer but general guidance in the assessment exercise. Those cases included: Ho Man Fong v Sime Darby Motor Services Ltd, unreported, HCPI 1096/2003 per Suffiad J dated 19 July 2005; Tong Chun Chung v Pud Chi Keung, unreported, HCPI 183/2003 per Suffiad J dated 6 May 2005; Limbu Ramesh v Chu Fung Man, unreported, HCPI 192/2005 per Master Roy Yu dated 28 April 2006; Chong Ngan Seng v China Harbour Engineering Co Ltd, unreported, DCPI 2078/2009 per Deputy Judge Rebecca Lee dated 19 December 2011; Yu Shun Wah Jimmy v Cheung Hing Cheung Billy, DCPI 1209/2006; Cheng Lai Kwan v Nan Fung Textiles Ltd [1998] 2 HKLRD 729. In my considered view an award of $250,000.00 would be just and appropriate. I so order. VIII. Pre-Trial Loss of Earnings The Plaintiff has earned a living in the catering industry since 1979 when he began as a waiter. Over time he rose through the rank of captain before becoming a restaurant manager. His employment as manger with the Defendant began in September 2007. In sum, he has had considerable experience managing restaurants and supervising the staff working under him. He was the more senior of the two managers at the restaurant in question, the other manager being in reality a captain. He oversaw a waiting staff of 5, 6 kitchen workers, 2 cashiers and 2 dishwashers. He agreed that as manager, his role should principally be supervisory in nature with a fair measure of customer relation thrown into the mix. His evidence was that waiting staff were notoriously temperamental and difficult to manage, often threatening to leave if tasked with work they considered either too onerous or falling without their duty. This was just such a case at the Horizon eatery on his testimony. Accordingly, the Plaintiff said he had to take on many extra burdensome duties such as putting away deliveries in the mezzanine floor, waiting at tables and setting up, clearing and moving tables. The nature of his work therefore frequently entailed much heavy lifting typically of 60-70 lbs in weight. His evidence as we heard was this was now well beyond him. There is no dispute that the Plaintiff was drawing a basic monthly salary of HK$15,000.00. At the time of the accident, he said he was additionally entitled to monthly tips averaging HK$1,100.00, giving him an aggregate monthly income of HK$16,100.00. The amount of tips was a matter of controversy. The monthly tips were distributed by DW1 Sin Wing Yiu, the Plaintiff s boss and the sole director of the Defendant ( Mr. Sin ). According to the Plaintiff, Mr. Sin would only occasionally require the staff to sign receipts for their share of the tips. On the Plaintiff s evidence such gratuity was distributed according to a fixed formula with 3 shares to him, 2 shares to the captain, 1 share each for the 5 waiters and 2 shares for the rest of the 4 remaining staff of cashiers and cleaners divided equally. Tips were accordingly divided 12 ways and distributed. Kitchen staff was excluded possibly because their remuneration was differently determined. Mr. Sin said the average monthly tipping from customers was about HK$4,000.00 as against HK$5,000.00 on the Plaintiff s evidence. The amount of tips would necessarily fluctuate, reflecting the level of patronage and customer satisfaction from time to time in my view. There was no documentary evidence on the amount collected in tips. As Mr. Sin was responsible for distribution, I am inclined to accept his evidence on the matter of tipping. Taking average monthly tips of HK$4,000.00, the plaintiff s share would have been HK$1,000.00 (HK$4,000.00/12 x 3 shares). His monthly average earnings at the time of the accident would therefore have been HK$16,000.00. The medical assessments in my view pointed to the Plaintiff s ability to return to managing restaurants about 9 months after the accident. That would be about the beginning of April 2009. He failed to do so even though his ability to resume working without any diminution in capacity was in no doubt on the medical evidence. He should have been making some determined effort to look for a suitable alternative opening in the catering field. Had he mitigated his loss as he was duty bound to do so, he would likely have returned to full employment in a managerial post with no reduction in earning or working capacity much sooner than 26 May 2009 when he took up a lower paid job of security guard for HK$7,800.00 per month. Under this head of claim, loss of income will be limited to 9 months the appropriate period of sick leave entitlement and assessed in the sum of HK$144,000.00 (HK$16,000.00 x 9 months). To this quantum must be added the legitimate loss of MPF benefits for the period. The loss of earnings inclusive of MPF therefore comes to $151,200.00. IX. Post Trial Loss of Earnings and MPF In light of my findings, an award under this head is not justified. Were it to be appropriate, I agree that a multiplier of 6 would be apt given the Plaintiff s age of 57 at the time of the assessment. X. Loss of Earning Capacity In the absence of any credible evidence that the Plaintiff has been exposed to a real risk of being disadvantaged in the labour market, this head of claim fails. The evidence as a whole demonstrated that the Plaintiff could and should have return to work as a manager with no residual problem. XI. Medical expenses These were agreed at HK$44,937.00. XII. Tonic Food The sum claimed of HK$5,000.00 was non-controversial and would be allowed in full. XIII. Travelling Expenses The Plaintiff claimed a sum of HK$7,412.00 for travel expenses incurred when attending medical treatment. The amount though unsupported by documentary evidence seems reasonable and would be allowed in full. XIV. Future Medical and Associated Travel Expenses I am not disposed to make any award under this head of claim. According to the orthopaedic experts, the Plaintiff s prognosis is good and further treatment would not likely improve his condition any further. According to Dr. Kan, the Plaintiff s post concussion syndrome was mild and considered unlikely to respond to further treatment. xv. Summary of Awards (A) Pain, Suffering and Loss of Amenities $250,000.00 (B) Pre-trial Loss of Earnings and MPF $151,200.00 (C) Future Loss of Earnings and MPF NIL (D) Loss of Earning Capacity NIL (E) Medical Expenses $44,937.00 (F) Tonic Food $5,000.00 (G) Travelling Expenses $7,412.00 (H) Future Medical and Travelling Expenses NIL Total Damages $458,549.00 Less: Employees Compensation received $409,790.00 Net Damages $48,759.00 XVi. CONCLUSIONS There shall be judgment in the sum of $48,759.00 with interest at 2% p.a. on the award for PSLA from the date of the service of the writ until the date of judgment and interest at half the judgment rate from the date of the accident until the date of judgment on special damages. The Plaintiff will also have his costs of the assessment including any costs reserved in respect thereof with certificate for counsel, taxed if not agreed. There will be Legal Aid Taxation of his own costs. I further order that the costs given shall be on the District Court Scale, there being no reasonable prospect of achieving an award on the evidence beyond the District Court jurisdiction. The cost order shall be nisi in the first instance with liberty to apply within 14 days from the date hereof. (B.L. de Souza) Master of the High Court Mr Erik Sze Man SHUM, instructed by Messrs Leung, Tam & Wong, for the Plaintiff Mr. Paul H.M. 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