CHEUNG OI YAN RUBY v. WONG HOI SUM

CACV 259/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 259 OF 2011

(ON APPEAL FROM HCPI NO. 981 OF 2007)

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J U D G M E N T

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Hon Yuen JA:

1. This is the plaintiff’s appeal from an award of damages given by Master De Souza on 1 November 2011 in which he assessed the award for Pain, Suffering and Loss of Amenities (“PSLA”) at $100,000, and $25,000 for special damages arising from injuries suffered in a traffic accident. A writ had been issued in November 2007. In December 2007 a consent order was made entering judgment for liability and for damages to be assessed.

Accident

2. On 22 November 2004 the plaintiff (then aged 27), a car sales executive, was a passenger in a car which collided with the defendant’s car.  Her head hit the window, and her right shoulder and neck were injured by the seat belt she was wearing.  Her lower back was also injured.

3. She was treated at the United Christian Hospital (“UCH”) immediately after the accident.  She had a number of complaints, which included pain over her lower back.  Contusion (bruising) over her lower back was found. An X-ray was taken of her back, which was normal.  However no MRI examination was done at the time.

Complaints

4. In the 3 years from the time of the accident to the issue of the writ, the plaintiff made a number of visits to various hospitals as well as a private doctor.  Her complaints were diverse.

Claim

5. In the Revised Statement of Damages, the plaintiff’s complaints (in brief) were listed as follows:

(a)  low back pain (increase of pain on sitting, standing or walking for 10 minutes);

(b)  lower limb numbness (more serious on the right);

(c)  neck pain;

(d)  upper limb numbness (more serious on the right);

(e)  frequent urination;

(f)  headache when concentrating and nervous;

(g)  dizziness (having fainted a few times);

(h)  insomnia;

(i)  being nervous;

(j)  being unable to concentrate;

(k)  being irritable;

(l)  poor motivation;

(m)  low mood; and

(n)  pain over the body.

6. Notwithstanding all these complaints, the only ground of appeal before this court concerns her complaint of low back pain.

Expert reports

7. Two separate “joint medical assessment and reports” were adduced: one from two orthopaedic experts (Dr Johnson Lam and Dr Lee Po Chin) and one from two neurological experts (Dr Robert Ho and Dr Edmund Woo). None of the doctors gave oral evidence.

Hearing

8. The hearing before the master took place over a period of 4 days between March and August 2011.  The plaintiff gave oral evidence, and video recordings of her taken by surveillance cameras were shown. 

Assessment by the master

9. In his judgment, the master set out methodically the plaintiff’s injuries and treatment (in part II of his judgment), her evidence (part III), the orthopaedic experts’ opinions (part IV), the neurological experts’ opinions (part V), the surveillance evidence (part VI), the evidence relating to the plaintiff’s business venture called “the Mitalian Collection” (part VII) and the evidence relating to the proceeds of the sale of a car (part VIII), before concluding that “the plaintiff did not suffer the extensive injuries and serious and persistent disability that she attempted to present” (para 49).

10. As far as the medical assessments were concerned, in relation to the neurological aspect, the master preferred Dr Woo’s opinion for reasons he set out cogently in para 37 of his judgment.  There is no challenge to this finding on appeal.

11. The only issue raised in this appeal concerns the master’s judgment regarding the claims for injuries to the plaintiff’s low back, and damages consequential thereto.  The master held that even though an MRI scan done on 29 March 2007 disclosed a large annular tear (a tear in the ring surrounding a spinal disc) and moderate degeneration of the disc at L4/L5, the plaintiff had “failed to establish that the MRI findings were related to the accident”. 

12. I shall first summarize the evidence relating to the injury to the plaintiff’s back, before setting out the experts’ opinions on them, and then discussing the master’s conclusions.

Evidence relating to the orthopaedic injuries

13. There was no challenge to the plaintiff’s evidence that prior to the accident which she suffered at the age of 27, she had suffered no previous injury to, and had not complained of any pain in, her back.  There is no evidence at all of any pre-existing degeneration. 

14. Further it is not disputed that as a result of the accident (on 22 November 2004), she did suffer soft tissue injury to the “low back”.  She had complained of pain in her lower back when she went to hospital immediately after the accident, and examination by the doctor at the A&E department confirmed that contusion was found at that location.

15. Four days later (26 November 2004), she returned to the same hospital complaining of back pain.  She was given sick leave of 7 days.

16. She resumed work on 6 December 2004 but after 3 days (9 December 2004) went to Tseung Kwan O Hospital complaining again of lower back pain.  She was given sick leave of 5 days.

17. About a month later (23 January 2005), she went to Prince of Wales Hospital (“PWH”), complaining again of lower back pain. She was given sick leave of 4 days.

18. A few months later (in June and July 2005), she went to Queen Elizabeth Hospital on 2 occasions complaining of other problems.

19. However in October 2005, she consulted a private doctor, again complaining of lower back pain.  She was given sick leave for 7 days.

20. In August 2006, she stopped working as a car sales executive but took up some other work.  She said in her witness statements that due to the “sequela” of her injury (which she did not specify), she later decided not to work.  She said in her oral evidence that after she stopped working, she began to “hide herself”, and even though she did not have proof or receipts for treatments, it did “not necessarily mean that [she] had no pain or that [she] was well”.  However there is no evidence that she consulted any medical practitioners in Hong Kong for back pain during that year.

21. In February 2007, she went to PWH, again complaining of back pain.  She was given sick leave for 7 days. 

22. On 26 March 2007, she had a syncope attack (loss of consciousness due to low blood pressure).  She went to PWH where she gave a history of low back pain for 2 years since the accident.  She was admitted to the orthopaedic department and an MRI scan was done 3 days later.

23. The MRI scan (performed on 29 March 2007, when the plaintiff was 30) showed that even though other discs were normal, “at L4/5, moderate disc degeneration is present associated with a large central posterior annular tear.  There is a small central to left para-central disc protrusion”.

Experts opinions of low back pain

24. After the orthopaedic experts’ joint assessment, Dr Lam’s opinion was that even though there was a probable element of symptom magnification, nevertheless, objectively the MRI scan showed a large annular tear and moderate degeneration at L4/5 which were not typical of natural degeneration (other discs being normal).  In his opinion, it was likely that the accident had caused injury to the L4/5 disc, resulting in the large annular tear and hastened disc degeneration. 

25. Dr Lee agreed that the accident could have caused soft tissue injury to the back, as the plaintiff had low back pain immediately afterwards. He also accepted that it was “impossible to tell when the annular tear occurred”.  However as there was no evidence of persistent back pain throughout the years after the accident, he thought it was likely that when she fell during the syncope attack a few days before the MRI, she suffered an additional injury to the back, causing the annular tear.  In his opinion, “both the subject injury [the accident] and the subsequent fall as a result of the syncope on 27th March 2007 contributed to [the plaintiff’s] back condition at the joint examination”.

26. Neither doctor was called to be cross-examined.  In this respect, I would add that I agree with Kwan JA’s observations set out later in this Judgment.

The Master’s conclusions

27. After setting out Dr Lam and Dr Lee’s opinions, the master said in his judgment that “on a fair and objective assessment of the findings of the orthopaedic experts, in light of the plaintiff’s noted propensity to exaggerate her symptoms at the joint examination, I am not satisfied on a balance of probabilities that the lower back condition revealed by the MRI was causally connected with the accident” (para 29).  This view was repeated in para 49 where the master held that the plaintiff had failed to establish that the MRI findings were related to the accident and that the chain of causation had not been proved on a balance of probabilities. 

Discussion

28. The master was obviously unimpressed with the plaintiff’s propensity to exaggerate her symptoms.  However with respect, in coming to the conclusion that she had failed to prove that her lower back condition was caused by the accident, he failed to take into account one important feature - that the large annular tear and the disc degeneration occurred at exactly the same location, L4/5.  It is accepted by Mr Sakhrani for the defendant (in my view, correctly) that it could not have been sheer coincidence that those two defects in the plaintiff’s back occurred in exactly the same location (as the rest of her back was normal).  Therefore, one must consider these two defects together to see if they were caused by the accident. 

29. Dr Lam’s expert opinion was that as there was no natural degeneration in other parts of the plaintiff’s back, it was the lower back injury sustained in the accident which caused the annular tear, and hastened degeneration of L4/5 over the period of 3 years between the accident (2004) and the MRI (2007).

30. Although Dr Lee had an alternative “possible” explanation for the tear (the fall 3 days before the MRI), he gave no explanation at all for the hastened disc degeneration at that exact same location only.  It could not possibly be suggested (and Mr Sakhrani correctly does not seek to suggest) that the fall caused degeneration within the space of only 3 days.

31. The only reason Dr Lee gave for challenging Dr Lam’s opinion that the plaintiff’s back condition (the tear and hastened disc degeneration at L4/5) had been caused by the accident was that there was no evidence that the plaintiff had suffered “persistent” back pain throughout the period of 3 years.  However as can be seen from the section entitled “Evidence relating to the orthopaedic injuries” earlier in this judgment, the plaintiff had in fact complained of back pain for 2 years prior to the MRI, and had sought medical treatment from time to time after the accident, although she was not able to produce evidence of medical treatment throughout that period. 

32. In any event, the objective fact remains that the MRI revealed a large annular tear and hastened disc degeneration at exactly the same location, consistent with the complaint of low back pain at A&E immediately after the accident.  Since the degeneration occurred over a period of time, those defects could not have been caused by the fall only 3 days before the MRI.  The only expert medical opinion that gave a cogent explanation for both defects in the same location was that of Dr Lam, and with respect to the master, that was the only conclusion that could have been reached on the state of the evidence, as Dr Lee was not called to supplement his opinion, nor was Dr Lam cross-examined on his opinion. 

33. I find therefore that the plaintiff’s lower back condition as revealed by the MRI was caused by the accident.

Damages

34. As for damages, I am aware of the master’s view of the surveillance evidence which showed the plaintiff moving freely and seemingly untroubled by her condition.  However it is important to note that the plaintiff is only 34 years old now, she has reached maximal medical improvement (see Joint Medical Assessment and Report, para 10) and so her condition will only deteriorate with age. 

35. According to Dr Lam, the back injury had an overall mild to moderate effect on the plaintiff, as prolonged sitting, standing or lifting heavy objects would cause pain or discomfort on the back.  He was of the view that although she should be able to return to her pre-accident work as a car sales executive (or work of a similar nature), some reduction in endurance and work capacity was expected.  Although it was unlikely that there would be much restrictions on the plaintiff’s activities, nevertheless with increasing age, she would have to be careful with exertions of her back.  He was of the opinion that the back injury carried a 5% whole person impairment and caused a 6% loss of earning capacity.

36. So far as damages for PSLA are concerned, I have taken into account the cases cited by counsel[1].  In my view an appropriate award in the present case would be $300,000. 

37. So far as damages for Loss of Earning Capacity (“LOEC”) are concerned, it is correct that this was not pleaded but presumably it was a live issue at the assessment as it was considered by the master (para 55). Given Dr Lam’s views that prolonged sitting or standing would cause pain or discomfort on the back, especially with increasing age, I would award $100,000.

38. The plaintiff no longer challenged the master’s award of $25,000 as Special Damages.  The claims for loss of earnings and future treatment were not pursued at the hearing of the appeal. 

39. Accordingly I would set aside the master’s award and give judgment in the sum of $425,000 with interest at 2% per annum on the award for PSLA and LOEC from the date of service of the writ, and interest at half the judgment rate from the date of the accident until the date of judgment on Special Damages.

40. The master’s order on costs is undisturbed.  As for the costs of this appeal, the parties have agreed that costs should follow the event, and so the plaintiff will have the costs of the appeal, the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Hon Kwan JA:

41. I agree with Yuen JA this appeal should be allowed for the reasons in her judgment. I only wish to make one observation on the procedure adopted for the assessment of damages.

42. An order was made by the PI Judge on 13 October 2009 that the joint medical assessment and reports of the neurological experts and of the orthopaedic experts be adduced without oral evidence. Whilst the master had no difficulty in resolving the differences between the neurological experts in their joint report and articulated his reasons in so doing, apparently he did not find it easy to resolve the disagreement between the orthopaedic experts on the likely cause of the findings in the MRI examination on the basis of the joint report alone. Hence, his conclusion that the lower back condition revealed by the MRI examination was not causally connected with the accident rested merely “on a fair and objective assessment of the findings of the orthopaedic experts, in light of the Plaintiff’s noted propensity to exaggerate her symptoms at the joint examination”.

43. In the arguments advanced in this appeal, counsel for the defendant had urged us to take note of matters or suppositions not canvassed by the defendant’s doctor in the joint report and criticism was made that the plaintiff’s doctor did not give reasons or adequate reasons for his opinion that the disability in the lower back was caused by the injury in the accident. To attempt to resolve the differences of the orthopaedic experts in this manner is hardly satisfactory.

44. Parties should give serious thought whether the experts of a joint report should be called to testify on any particular issue so that the dispute on such issue may be fairly and properly determined. Any difficulty they may encounter in conducting their case without calling the experts should be brought to the attention of the court.

Hon Bharwaney J:

45. I agree.