CHAN KAM HOI v. DRAGAGES ET TRAVAUX PUBLICS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. These proceedings arise out of two accidents that the Plaintiff says occurred on 25th June 1988 and 6th September 1988, in the course of his employment with the Defendants, at a building site in Queensway, Central, during the construction of what is now the Conrad Hotel. The Plaintiff was a carpenter at the time, having been employed at this site since May 1988, and his principal function was the construction and dismantling of formwork.

LIABILITY

2. The Plaintiff's account of the first accident is that, in the course of dismantling formwork, he was walking across a scaffolding platform about 20 feet high carrying a piece of wood on his shoulder, when the platform suddenly swayed, causing him to lose his balance, and while remaining on his feet, fall sideways striking his waist against one of the metal supports at the side. He was given first aid which appears to have consisted of a painkiller being sprayed on to his back. He did not immediately seek treatment at a hospital, he says at the request of the site safety officer, but saw a doctor on 27th June, when he was given four days sick leave. He then returned to work and apparently worked normally until the second accident on 6th September the same year.

3. His account of the second accident is very similar to that of the first, save that on this occasion he was constructing formwork. He says that he was again carrying a piece of wood on his shoulder when the metal scaffolding swung and shook, and he sat down heavily still holding the piece of wood, injuring his back. On this occasion he was taken direct to Tang Shiu Kin Hospital by taxi, where he was treated and then sent home. He has not worked since.

4. If the accidents happened as the Plaintiff says, then clearly the Defendant is liable for breach of implied term of his contract of employment to provide a safe place and system of work, in negligence, and as occupier of the site under the Occupiers Liability Ordinance.

5. The Defendant, however, while calling no evidence as to the accidents themselves, maintains that the evidence as a whole shows that the Plaintiff is not to be believed, and it is more likely that the accidents were caused by his own carelessness. In support of this, Mr. Ramanathan on behalf of the Defendant points to the Plaintiff's exaggeration in respect of his injuries and disability, his differing explanations for the swinging of the scaffolding, and the fact that he told two of the doctors different accounts as to the weight of the wood he was carrying, and that he slipped rather than fell.

6. I accept that the Plaintiff has, to the doctors when being examined, and in evidence, exaggerated to a marked degree the extent of his injuries and disabilities. But exaggerating the effect of an accident is very far from inventing the fact of the accident or the reason for it. I also accept that he has since the accident given explanations for the swinging of the scaffolding that were not given in the original statement of claim. The Plaintiff is a very emotional man who clearly has a strong sense of injustice done to him, and an overactive imagination which has sought answers as to why the accidents happened. I do not for a moment believe that the Plaintiff knows the cause of the accidents, apart from the fact that the scaffolding moved. He has since tried to find an explanation, no doubt to bolster his own case, and he produced in Court parts of the scaffolding he said he had collected at the site. I do not think that these parts assist very much in finding a cause for what happened, but at the same time his efforts do not, in my view, make his evidence as to what did happen to him any less plausible.

7. Neither do I attach much weight to what the doctors recorded in their reports as to the cause of the accidents and the weight he was carrying. Doctors examining patients for the purpose of legal proceedings are not investigating into the accident itself or the causes of it, except for the purpose of looking at what the Plaintiff said happened to him to determine the sort of injuries he has suffered. What is at the forefront of their minds and the Plaintiff's is his medical condition, not taking an accurate statement about the accident itself. The weight of the wood he was carrying is similarly of little importance. I do not believe that the Plaintiff knows what weight it was, and he has constantly been asked to guess. His guesses have fluctuated. Again it is not something which causes me to doubt his credibility as to the accidents themselves.

8. It is not seriously disputed by the Defendant that something did happen to the Plaintiff, and his complaints at the time, and the records of the doctors he saw, support that. As I have said, the Plaintiff's evidence is plausible and the events he describes possible, and in the absence of any evidence from the Defendant to the contrary, I am bound to find, as I do, that the accidents happened as he described, with no contributory negligence on his part, and the Defendant must therefore be liable.

QUANTUM

9. The Defendant has three principal contentions in respect of quantum. The first is that the Plaintiff was already suffering from a degenerative condition of the spine prior to the accident, which would in any event have caused disabilities such as those from which he now suffers had no accident occurred, and that the Plaintiff has not proved that these flow from the accident. The second is that, if the accidents did cause or contribute to his disability, there should be a discount to take account of the preexisting condition. The third is that those disabilities are far less serious than he would have the Court believe.

10. The Plaintiff denies that he had any problem with his back prior to the first accident. He says that he had worked continuously, with no symptoms of pain or weakness in his back, at a strenuous job, and that it is only since the accidents that he has had difficulties.

11. However, the medical evidence here is overwhelming. Immediately after the second accident on 6th September an X-ray was taken of his back. The report dated the same day notes "degenerative changes" to the lumbar spine. Dr. David Lee, the Plaintiff's own witness, said in evidence that there were degenerative changes which were "quite severe" and which must have been pre-existing. In his report of 18th December 1991, he said: "A heavy manual labouring worker tends to have degenerative changes of the lumbar spine due to wear and tear but not necessarily to give rise (to) any symptom". An MRI scan, performed in December 1991, showed small posterior protrusions of L4-5 and L5-S1discs, and anterior herniations of L2-3, L3-4 and L4-5, although with no significant pressure effect on to the spinal thecal sac which encloses the nerves of the spinal cord. Dr. Lam Kwong-chin said that the fact that there was prolapse on four levels indicated that the more likely cause was degeneration rather than trauma. Trauma, he said, would be unlikely to cause more than one.

12. I am satisfied that the Plaintiff did have a degenerative condition of the spine, which prior to the first accident, and probably up to the second, as he worked regularly until then, produced either no symptoms, or not sufficient to worry the Plaintiff or cause him to cease heavy manual labour. Because of this, the Plaintiff is adamant that it was only the accidents which have caused his back trouble. However, I regret that the medical evidence here is to the contrary.

13. The matter does not end there as the next question is whether the accidents here caused or contributed to the Plaintiff's present condition, or whether, on the evidence, it was a natural result of the existing condition, unconnected with the accidents.

14. I accept the Plaintiff's evidence that, prior to the accidents, his back did not cause him any problem. I also accept that, from the date of the second accident, he has suffered pain and limitation of movement to some degree which was not there before. While I concede that post hoc is not necessarily propter hoc, it does seem to me too much of a coincidence that his symptoms only arose after the September accident, which was clearly the more serious of the two in the effect it had on him. The medical evidence after the first accident suggests only very mild effect on his spine, and, indeed, he was able to return to work normally for another three months.

15. I am supported in this to some extent by Dr. Lam, who, although firm in his contention that the state of the Plaintiff's spine made it more likely that he suffered from a severe degenerative condition, said that it was possible that the accident had made it worse. Indeed, it seems to me a matter of common sense that, given the weakened state of the fibres holding the discs between L2 to L5, a sudden trauma of quite mild degree can make it dramatically worse. Dr. Lee's evidence agreed with this, when he said that even sitting in an aircraft seat for a long time could exacerbate prolapse of discs where degeneration was already present. Here the Plaintiff's evidence of the second accident, namely losing his balance and landing heavily on his buttocks while carrying a piece of wood, even if the latter were of moderate weight, is of a situation guaranteed to cause the sort of strain on an already weakened back to precipitate it from a symptomless condition to that he suffers from now. I am therefore satisfied that the immediate cause of the Plaintiff's injuries to his back was the second accident on 6th September 1988.

16. The next matter is the contention of the Defendant that the severe nature of the degenerative condition of the Plaintiff's back would in time have affected his working and earning ability irrespective of whether the accident had occurred, and any damages should be discounted to reflect this.

17. The medical evidence certainly supports this contention. I accept the evidence of Dr. Lam that the fact that there was disc protrusion over more than one level suggests that degeneration played a large part in the damage. Both doctors agreed that such degeneration was not unusual in heavy manual workers, and one with a condition such as the Plaintiff's would increasingly have to take time off work from the late 40's onwards because of the pain, and by the mid-50's would probably have to change their work to something lighter, with an inevitable fall in income. There is no real dispute here in the evidence of the doctors that the Plaintiff would, at some stage, and most likely by his mid-50's, have developed symptoms from his back similar to those he now suffers, and would be unable to continue his employment as a carpenter in so far as it required lifting or heavy work as on a building site.

18. When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff's present state. The third is where this would certainly have occurred at some stage in any event. In the first, the Defendant would be liable for all damage caused. In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

19. The existing condition of the Plaintiff's spine here, and the nature of his employment, takes this case certainly into the second category and possibly into the third. This type of spinal problem is not unusual, and orthopaedic surgeons are extremely familiar with it and the course that it will take, except in the most unlikely situations. It was almost inevitable, that, assuming he continued his pre-accident employment, the Plaintiff would reach a stage similar to that he is in now, where he suffers a degree of pain and the only work available to him is light work or that of a sedentary nature. The only truly unknown factor is when this would have occurred. The only estimate we have of this is that it would have affected his working ability probably from the mid-50's.

20. I accept that the Defendant is not responsible for what the Plaintiff would have suffered from his pre-existing condition had the accident not happened as it did, and that there should be some discount in the damages to reflect this. Mr. Ramanathan suggests this should be at least 60%. We are, however, in relatively uncharted waters. The only guides I have by way of previous authorities are, firstly, the judgment of Fisher J. in Jason v. Batten (1930) Ltd. [1969] 1 Lloyd's Rep. 283, where he allowed a reduction of 60% having found that the Plaintiff would have had a coronary thrombosis within 3 to 5 years which had been accelerated by the accident. The second is that of Findlay J. In Cheung Fat Tim v. Wong Siu Ming and anor. HCA 5079 of 1991 (unreported), where, in the light of uncertain evidence as to when, or if, the Plaintiff would have required an operation on an arthritic elbow, he allowed a reduction of 25%.

21. Here we fall somewhere between these two figures. The evidence is that it is certain that the Plaintiff would have suffered a deterioration in his condition in any event, and that it is likely that this would have caused him to give up his pre-accident occupation by the time he was 55. I consider in these circumstances an appropriate discount to be 45%.

Pain suffering and loss of amenities

22. The Plaintiff has throughout these proceedings maintained that he is severely disabled by his injuries. He says that he cannot walk without a stick, climb or descend stairs, that he suffers pain, and numbness in his left leg and restriction of movement. As a result he says that he is totally unemployable in any capacity. In addition to these complaints he also claims that he suffers from impotence and incontinence, as a result of pressure by the protruding discs on to the spinal nerve, and psychiatric problems, caused in part by the effect of these on his marital relations with his wife.

23. The limitation of movement was initially confirmed by Dr. Lee in his reports of 1990 and 1991, where he found in particular severe restriction in straight leg raising, being 30% on the right and 20% on the left, with low back pain. However, the notes from Tang Shiu Kin Hospital on the day of the second accident show that straight leg raising was "full", and in November the same year, give it as 85% in both legs. In 1994, Dr. Lam recorded 40% in both legs, but was also of the opinion that the Plaintiff was exaggerating, in that if the limitation was as severe as the Plaintiff maintained, he would not be able to even sit in an upright position. Dr. Lee in evidence agreed that it was possible that the Plaintiff was exaggerating the extent of his disability.

24. This assessment of the Plaintiff's veracity was confirmed by Mr. Sze Ming Cheong, a private investigator of Take Result Ltd., who produced a video recording in which he followed the Plaintiff on 21st May 1996 as he left a clinic in Capitol Centre, Jardine's Bazaar, Causeway Bay and returned home to Lam Tin Estate. This shows the Plaintiff walking normally and going down stairs into the MTR station, without the assistance of either the handrails or the walking stick he carried throughout but did not use, travelling on the train to Lam Tin and then walking at a normal pace and unassisted to the block where he lives.

25. The fact that he does not appear to be restricted in movement was further confirmed by my own observation in Court. The Plaintiff frequently carried a stick, but rarely used it except when holding it up in the air to demonstrate the movement of the scaffolding poles in the accident. Indeed, he moved without restriction, and was constantly moving about, standing and sitting without difficulty, and on several occasions had to be warned as to his behaviour when leaping to his feet in an agitated manner because of his disagreement with evidence for, or submissions made on behalf of, the Defendant.

26. Having said that, it is clear that he does have some injury to his back. Both doctors agree that he cannot return to his pre-accident occupation as he has some degree of limitation of movement, pain and weakness. Both also agree that there is no reason that he cannot return to some lighter occupation, possibly as a caretaker or watchman.

27. As to his other complaints, the impotence, incontinence, numbness in the legs, tiredness and blurring of vision, there is little evidence that these have any connection with the back injury. The MRI scan shows that the disc protrusions are not large, and they do not exert significant pressure on to the nerves which would be the only possible cause from that area. On the other hand, there is evidence that the Plaintiff has been treated in the past, and still suffers now, from diabetes mellitus. The hospital notes refer to a history of diabetes, and tests in 1993 and 1994 show levels of blood sugar two or three times the average normal level. Dr. Lam says that this shows that he still suffers from diabetes which is not under control, and that this quite commonly causes impotence, dizziness, numbness in the hands and legs, and blurred vision. Dr. Lee agreed that diabetes is a more common cause of impotence, and more likely than the spinal problem. For the purpose of these proceedings, therefore, I will ignore these as being unconnected with the accidents or his present disability.

28. The last area of disability to be considered is the Plaintiff's psychiatric condition. It is again agreed by the two doctors who gave evidence, Dr. Singer and Dr. Bernard Lau, that the Plaintiff does suffer to some degree from depression. Dr. Singer attributes this to the accident and its consequences, including his marital problems as a result of his impotence. However, as I have found above, the latter has no connection to the accident, and the physical consequences are not as severe as he would have the Court, or Dr. Singer believe.

29. Dr. Lau puts the degree of depression at a lower level, and says that it is an agitated depression contributed to by his own attitude to his employers, his marital problems, and possibly these proceedings. He is, however, well motivated, alert and attentive, easily frustrated, impatient and worked up, unlike the usual depressive who has reduced energy, drive and motivation.

30. I am consequently of the view that any psychiatric disability is not of high degree, and little, if any, of that can be attributed to the accidents.

31. Mr. Ramanathan has submitted that the figure for pain, suffering and loss of amenities should be in the region of $250000. I consider that to be a fair figure in the circumstances, which I will adopt for the purpose of this head of damage. This will be reduced by 45% in view of my findings above, giving a sum under this head of $137500.

Pre-trial loss of earnings

32. At the time of the accidents, the Plaintiff was earning $200 a day and $37.50 per hour overtime. He had worked for the Defendant since 12th May 1988, and the Defendant's records show that he worked 17 days that month, 20 days in June, 24 in July, 25 in August, and 6 1/2 in September. His total earnings for those months with overtime were $6700 for May, $6475 for June, $8737.50 for July, $8000 for August, and $2031.25 for September. He therefore earned a total of $31945.75 during his time with the Defendant, and worked a total of 92 days. His average daily income was accordingly $347.21. His time with the Defendant only comprised three complete months, namely June, July and August. In June, although he is recorded as only having worked 20 days, he was on sick leave for four days as a result of the first accident. If this had not occurred, then he would probably have worked for those four days as well, making 24 for June. He worked 24 days in July, and 25 in August, the only other whole months, and of the 20 days available in May, he worked 17. I am accordingly of the view that a reasonable average number of days worked each month would be 24, giving an average monthly income at the time of the second accident of $8333.00, which is slightly more than the Plaintiff's own calculation of $8315.82.

33. As I have already noted, the Plaintiff has not worked since the accident in September 1988. He has been attending government clinics regularly for treatment for the pain in his back, and has been given sick leave certificates on most if not all visits.

34. This does not mean however that he has been incapable of work since 1988. The view of Dr. Lam, with which Dr. Lee also concurs, is that he could have returned to light work of some kind a year after the second accident. From my findings above as to his injuries, I have no hesitation in accepting this. He could and should have tried to return to work, but he admitted that he has not applied for any jobs at all, apart from making some enquiries with the caretakers of buildings that he happened to pass. I accept the evidence of the doctors, and consider that he is entitled to a total loss of earnings from 6th September 1988 to 5th September 1989, being 12 months at $8333.00, a total of $99996.00, and a partial loss thereafter calculated as the difference between his pre-accident earnings and what he might have earned in another occupation.

35. In respect of what the Plaintiff's income would have been in 1989, Mr. Ramanathan has presented evidence in the form of a table of wages in the construction industry which gives a figure of $380 a day. It does not say whether this is the basic wage, or an average including overtime. However, amounting as it does to an increase on the year of 9.44%, it seems a reasonable figure to take bearing in mind the rate of inflation. I accordingly accept that the Plaintiff's monthly income in September 1989 would have been $9120.00 ($380 x 24).

36. According to Government statistics, the average daily wage of carpenters in the building industry in September 1996, the latest figures available, was $809.80 per day. I will round this up to $830.00 to take account of inflation since then. This gives a monthly average today for 24 days a month of $19920.00. The median for the period September 1989 to today is therefore $14520.00 ($9120 + $19920 ÷ 2)..

37. I now come to what the Plaintiff might have earned had he, as I have found he should, returned to work a year after the accident. I believe that he could have found work at the very least as a watchman or caretaker, and I will take the average earnings of workers in that capacity to be what he could have earned.

38. The statistics nearest September 1989 that have been produced are those for March 1989, which give an average wage for a watchman/guard in various industries from a low of $2499 to a high of $3935 a month. For the purpose of these proceedings I will take the median of $3217. Again I will round this up to $3340 to allow for inflation.

39. The latest statistics available, for September 1996 again give varying figures for a watchman from a low of $5702 a month up to $9158 to produce an average of $7430, which I will round up to $7650 to allow for the 5 or 6 months since then. This gives a median figure for the period September 1989 to the present day of $5495 ($3340 + $7659 ÷ 2).

40. The partial loss of earnings for this period is accordingly $9025.00 a month, giving a total of $812250.00 for the period ($14520 - $5495 x 90 months).

41. The total loss of earnings to date is accordingly $912246.00, i.e. $99996.00 for the one year total loss, and $812250.00 for the partial loss to date. This must then be discounted by 45% as before to give a figure of $501735.30, which is the sum I award under this head.

Future loss of earnings

42. Mr. Ramanathan's primary contention is that there should be no award at all under this head as the Plaintiff would have by now had to change to the sort of work of which he is presently capable in any event, and he has accordingly suffered no loss of income as a result of the accidents. Alternatively he says that the period of loss should be no more than a year.

43. I do not consider either of these to be the correct approach. In view of the evidence of the Plaintiff's pre-existing condition, for which I have allowed a deduction of 45% above, and the likely progress of it, I accept that there is a strong probability that he would by now, or in the near future, have been forced to change his employment. However, I do not think it would be right to reflect this in a cut-off date, as I am dealing with probabilities not certainties, which are best represented by a percentage, as I have done for the general damages and pre-trial loss of earnings.

44. The Plaintiff was aged 45 at the date of the accidents. An appropriate multiplier would therefore be 12, which, by deducting the 8 1/2 years since then, leaves 3 1/2 years. By applying that to the continuing loss of earnings of $12270.00 a month ($19920 - $7650) one arrives at a figure of $515340.00.

45. To allow for the vastly increased probability of the increasing effects of the damage to the Plaintiff's spine from his pre-existing condition, I propose to discount that sum by 75%. I accordingly award a sum of $128835.00 under this head. I make no award for loss of earning capacity, which I consider sufficiently allowed for in the percentages I have chosen.

Special damages

46. A number of other items of special damage were claimed in the statement of claim as follows:-

47. These are not unreasonable figures and were not seriously opposed by the Defendant. They will be awarded in full.

48. The only other item of special damage claimed is for continuing psychiatric treatment at $35000 a year for three years as recommended by Dr. Singer. I am not prepared to make any award for this. As I have said above, I consider any psychiatric disability as a result of the accidents to be minimal, for which, in any event, any treatment is readily available in Government clinics. As Dr. Lau said in his evidence, the most the Plaintiff needs is counselling, and the effect of that depends on his willingness to listen, and his ability to see his problems in the right way. His attitude, and behaviour in Court during these proceedings, does not persuade me that either of these are a realistic possibility.

Interest

49. The final matter is that of interest. The usual order is that there be interest on general damages for pain, suffering and loss of amenities at 2% from the date of the writ, and on special damages at half the judgment rate, namely 5.75%, from the date of accident, which here I will take to be the second, on 6th September 1988. However, Mr. Ramanathan seeks a reduced award of interest on the basis that this action has taken nearly 6 years to come to trial, and it is now nearly 8 1/2 years since the accident. He maintains that the delay is due in large part to the Plaintiff, firstly, in refusing to be medically examined, necessitating an application to the Court for a stay until he consented to the examination, and, secondly, by his attitude to the proceedings which caused the Director of Legal Aid to discharge his legal aid certificate. There is certainly evidence as to this, both in the affidavit filed in support of the application for the stay, which was granted, and in the Director of Legal Aid's notice of discharge, which gives the reason therefor as requiring the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the Legal Aid fund, requiring unreasonably that the proceedings be continued, and failing to render sufficient assistance to the counsel and solicitor assigned to enable them to discharge their duties:

50. I agree that there is no reason why a comparatively straightforward action such as this could not, in the normal course of events, come on for trial within 6 years of the date of accident, and the Defendant should not be penalized by payment of interest which is greater than necessary. I accordingly award interest only up September 1994, the sixth anniversary of the second accident. There will be no interest on the award for post-trial loss of earnings.

Summary

51. From this figure must be deducted the award already made in the Employees' Compensation proceedings of $439749.68, leaving a sum of $535383.38. There will be judgment for the Plaintiff in this amount.