ANSAR MOHAMMAD v. GLOBAL LEGEND TRANSPORTATION LTD

HCPI 1057/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1057 OF 2007

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J U D G M E N T

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(I)  INTRODUCTION

1.  On 2 June 2005, the Plaintiff – a general worker employed by the Defendant (a transportation company) – was required to cover a stack of cartoons of goods with a tarpaulin.  He held one end of the tarpaulin whilst his co-worker held the other end, and ran. He slipped on the tarpaulin and fell.

2.  The Plaintiff fell on his upper buttock and lower back, and was taken to the Accident & Emergency section of the Princess Margaret Hospital (“PMH”) by ambulance.

3.  He was discharged on the same day.  The Plaintiff claimed that he has been suffering from severe back pain as a result of the accident.  Hence, a writ was issued on 12 December 2007 to claim damages.  Interlocutory Judgment was entered on 29 December 2008.

4.  This is a trial on assessment of damages.

(II)  ISSUES

5.  The hearing for assessment of damages was set down for 2 days, but it has grossly overrun by 7 additional days.  Hence, the assessment hearing has taken a total of 9 days.  The hearing was commenced on 6 May 2009, and only concluded on 24 April 2010.  During the first adjournment, and before the resumption of the hearing on 7 October 2009, the hearing was at the risk of a postponement as a result of the Plaintiff’s application to adduce further medical evidence.  After I had refused the application, the Plaintiff appealed to Suffiad J, who dismissed the appeal by a judgment handed down on 28 September 2009.

6.  Suffiad J. in his appeal judgment (in para. 26) identified two issues:

(1)  Whether the accident triggered or precipitated the Plaintiff’s pre-existing condition in his spine? and

(2)  Had it not been for the accident, would the Plaintiff’s spine have remained symptom free or would there have been painful progression as time passed by reason of the degenerative condition alone?

7.  Counsel for both parties are in agreement with the two issues.  Counsel for the Plaintiff, Mr. Hingorani, in paragraph 13 of his Final Submission has further added 16 sub-issues.

8.  The medical evidence (to be discussed below) that has been adduced, and the divergence of the medical opinions do show that there are more sub-issues that require to be resolved under the two broad issues Suffied J identified in the judgment.  I am however disinclined to adopt Mr. Hingorani’s sub-issues because some of them relate to evidential disputes rather than the issues pertinent to this assessment. 

9.  Prior to the hearing, it is common ground that the Plaintiff suffered some lumbar-spinal pre-existing conditions.  However, the Plaintiff’s case seems to have been shifted in the course of the hearing when the Plaintiff’s expert had to resile from some of the original concessions he had previously made.  Although Mr. Hingorani in his Final Submission was prepared to concede to the pre-existing conditions of spondylolysis, spondylolisthesis and disc desiccation, the extent and the location of the pre-existing conditions were in dispute. Hence, under the first issue, I think there should be the following sub-issues:

(i) Apart from the pre-existing conditions of spondylolysis, spondylolisthesis and disc desiccation, whether there were other pre-existing conditions, and if yes, the nature, location and extent of these conditions?

(ii)   Whether the Plaintiff was asymptomatic?

(iii) What injuries were caused by the accident?

(III)  evidence

A.  The Plaintiff’s evidence

10.  The Plaintiff, a Pakistan national, was born in August 1975.  Hence he was 29 at the time of the accident, and was almost 34 at the time of the hearing.  He only received education up to Primary 5 in his home country, and came to Hong Kong at the age of around 17 or 18.  Before the accident, he had worked in construction sites as a general labourer for about 10 years.

11.  The Plaintiff asserts that prior to the accident he had no problem with his back, and that his back pain persisted after the accident.  He had attended the A & E Department of PMH for at least 21 times, and received physiotherapy 7 times and about 24 sessions of occupational therapy at the Orthopaedics & Traumatology Department of PMH.

12.  He was granted sick leave by the government doctor from 2 June 2005 to 12 May 2006, and from 19 June 2006 to 24 July 2006, a total of 12.13 months.

13.  After the expiry of the sick leave, the Plaintiff traveled to Pakistan on 3 occasions.  The first one was between January and July 2007, during which he had allegedly twice consulted a private orthopaedic consultant there.

14.  The second trip was between February and August 2008 when he went home to visit his sick wife (who was about to give birth).  However, he stayed longer in Pakistan due to the pain that had allegedly prevented him from traveling.  He had produced a copy of the letter (bundle C6) from a Nero Surgery of a hospital in Pakistan, stating that the Plaintiff was not able to travel since March 2008 for about 6 months because of his pain at the spine.

15.  The third occasion was on 27 March 2009.  He was away for 1 month to allegedly attend to his sick mother there.

16.  In his witness statement dated February 2008, the Plaintiff said that his pain in his back did not improve despite physiotherapy and occupational therapies.  The residual symptoms included pain when walking and sitting, inability to lift heavy objects, pain in both knees radiating down to his ankles when he walked.  He would allegedly wake up with pain in his back, and had difficulties in climbing stairs and lying on his back when sleeping. He was unable to squat.  The pain had allegedly affected his sleep as well.

17.  In his evidence given at the hearing in May 2009, the Plaintiff said that the symptomsdescribed above were largely the same with little improvement.  It was said that the pain was bad after walking or standing for a long time, or when picking up weights or squatting.  Under cross-examination, the Plaintiff admitted that the pain could be relieved by injection but it would allegedly return.

18.  The Plaintiff said that he could not return to his pre-accident job as a labourer.  He only worked as a security guard for a number of employers after the accident.  After his return from his last visit from Pakistan in April 2009, the Plaintiff has lost his job as a security guard, and was still unemployed on the date of the hearing.

19.  The Plaintiff further averred that he used to play some sports such as hockey and football before the accident, but has since stopped.

B.  SURVEILLANCE TAPE

20.  Surveillance arranged by the Defendant was conducted on the Plaintiff, and there were 4 days of successful surveillance at the end of September 2007.  The surveillance tape played in court showed that the Plaintiff was walking down the stairs of a MTR station, shopping and carrying groceries and standing about without showing any disabilities or discomfort.

C.  EXPERT EVIDENCE

21.  The Plaintiff was examined by his expert, Professor Kumta (“Kumta”) on 11 May 2007, and by the Defendant’s expert, Dr. Wong Sze Hoi (“Wong”) on 11 January 2008 for the purpose of litigation.

22.   After the examinations, Kumta and Wong respectively prepared a report (“Kumta 1”and “Wong’s Report” respectively).  Kumta further prepared a short report (“Kumta 2”) in response to Wong’s Report.  In both Kumta 1 and Kumta 2 disclosed before the hearing, Kumta’s opinion was that: the Plaintiff has suffered injury at the L5/S1 disc space, which led to back pain[1].  There was pre-existing spondylolisthesis but it was asymptomatic before the accident.  The Plaintiff had some element of symptom magnification but the injury had likely caused a pre-accident stable, asymptomatic spondylolisthesis to become symptomatic.

23.  Wong’s opinion was contained in the only report he had written.  His opinion is this: the Plaintiff suffered spondylolisthesis at L5/S1 and spondylolysis at L5 level, both of which were pre-existed.  There was also multi-level disc degeneration, which was unrelated to the accident but might have been triggered by the accident (paras. 27-29 & 35).

24.  In spite of the experts’ agreement on some of the Plaintiff’s pre-existing conditions, and of the unsuitability of the Plaintiff in resuming his pre-accident job, the experts’ opinions were still largely divergent over a lot of pertinent issues. Both experts therefore had been called to give evidence and were cross-examined vigorously

25.  As the cross-examination was underway, Kumta sought to retract a concession he had stated in Kumta 2 regarding the pre-existing spondylolisthesis by adducing a two-page hand-written statement (“Kumta 3”), in which he says:

(i) the concession he made in paragraph 1 of Kumta 2 was inappropriate because he was only aware that spondylolisthesis was not reported in the report of the 1^st x-ray done on the Plaintiff’s spine in PMH on 2 June 2005.

(ii)   multi-level disc desiccation is an age- related process.

(iii) There was no multi -level disc desiccation, degeneration or protrusion.

(iv)    There is a prolapse of L5/S1.

D.  X-RAy Evidence

26.  X-ray scan is usually used for scanning bony structure of a spine, and is more suitable for showing spinal defects such as spondylolysis and spondylolisthesis.  The x-ray evidence is found in the two x-ray reports by PMH and Wong’s x-ray films[2].

27.  The 1^st X-ray of the Plaintiff’s spine was taken on the date of the accident on 2 June 2005 (“1^st X-ray”).  The 1^st X-ray report[3] reveals a loss of normal lordosis (likely due to muscle spasm), and right L5 spondylolysis.

28.  About 9 months after the accident, a 2^nd x-ray (“2^nd X-ray”) was taken of the Plaintiff’s spine on 3 March 2006.  The findings as recorded in the 2^nd X-ray report[4] are “mild anterior stepping of L5 over S1.  Pars defect is noted in bilateral L5.  Features are suggestive of spondylolisthesis.  Mild degenerative changes is noted.

29.  On 11 January 2008, when Wong examined the Plaintiff, x-ray of six positions of the Plaintiff’s lumbar spine was taken.  The findings as reported in Wong’s Report are:

 “Slightly reduced lordosis.  Spondylolysis at L5/S1. Spondylolisthesis at L5/S1 with less than 10% of forward slipping.  Mild degeneration at L5/S1 level.  Osteophytes from L3 to L5 levels.” [5]

30.  Based on the X-ray films, Wong opined in his report that the Plaintiff had spondylolysis and spondylolisthesis at the L5/S1. X-rays of the Plaintiff’s lumbar spine taken at the examination of the Plaintiff also produced the same result[6].

31.  When shown Wong’s X-ray films[7], Kumta said in the evidence in chief that he noted an area of intensively white appearance on both sides of L5, which according to Kumta, is suggestive of increased bone formation, and is evidence of bilateral spondylolysis (pars defect).  Kumta stated that there is some change in the lordosis and that there is less than 10% spondylolisthesis.

32.  So far as degeneration at L5/S1 is concerned, Kumta opines that it is not mild but advanced degeneration because the disc at L5/S1 shows a dip that is (according to him) probably due to loss of the discheight when it was compared to the vertebral end-plates at the other areas at L3/L4 and L4/L5. He had also identified an erosion of the end-plate at L5/S1, in which location the disc space was seen to have collapsed with the vertebral end-plates touching each other[8].  Hence, Kumta opines that the advanced change is not just at the disc, but also in the adjoining bone.  The Plaintiff was found to have suffered advanced degeneration at L5/S1.

33.  Regarding the osteophytes from L3 to L5 levels, Kumta said that although he noted blunting at the edge of L4, he would not describe such change as an indication of the presence of osteophytes (bone spur).

E.  Magnetic Resonance Imaging (“MRI”)

34.  While x-rays are useful for examining the bony structure of a spine, MRI scan is more suited than x-ray in showing a person’s disc, its spinal canal content (including the soft tissue inside), the vertebra and its surrounding ligaments.  Hence, it is generally used to find out a person’s disc problem of his spine.

35.  There were two MRI scans done on the Plaintiff’s lumbar spine.  The first MRI scan was done privately on 24 March 2006 (“1^st MRI”) and the second one was done by MPH on 18 May 2006 (“2^nd MRI”).

36.  The only positive finding (as shown in the report of the 1^st MRI[9]) is a 3 mm disc protrusion at L5/S1.  For the 2^nd MRI, the positive finding was L5/S1 desiccation, decrease in disc height and posterior protrusion[10].

E.1.  Kumta’s opinion on the MRI

37.  After having reviewed the MRI films of the two MRI scans consisting of a total number of 11 MRI films [11], Kumta took the view that the Plaintiff had injury at the disc space at L5/S1[12].  At his evidence-in-chief, he had retracted his earlier position, and concluded that there were no multi-level disc desiccation, degeneration and protrusion[13].

38.  Under cross-examination, however, Kumta agreed that the MRI films had revealed the following conditions of the Plaintiff’s spine:

(i)	Disc Desiccation
	Levels L1 to L4.
(ii)	Blunting
	L4 vertebra
(iii)	Lipping (bone spurs)
	at the anterior border at levels L2 to L4
(iv)	Reduction of disc height
	L3/L4
(v)	Bulging
	L2/L3 (minor bulge)
	L3/L4
	L4/L5
	He agreed that there was multi-level bulging.
(vi)	Total desiccated and prolapsed Disc
	L5/S1

E.2.  Wong’s evidence on the MRIs

39.  After having reviewed the MRI films, Wong found that the Plaintiff had “disc desiccation at L5/S1.  Multi-level disc protrusion from L2 to S1 levels.  Spondylolysis at L5/S1.  Spondylolisthesis at L5/S1.  No nerve root compression.[14]”

40.  Wong further said that since the term “bulge” and “protrusion” is used to describe a defect, which does not require a breach of the outer ring of the annulus, they could be used interchangeably.  Likewise, “herniation” and “prolapse” are terms for describing a situation where nucleus materials extrude, but do not necessarily involve the breaching of the annulus.  His findings on the MRI films are further elaborated as follows:

(i)	Disc desiccation
	Light to moderate desiccation at L3/L4, and more severe at L5/S1.
(ii)	Osteophytes (lipping, blunting)
	The lower sides of L1, L2, L3 and L5, especially marked in L3.
(iii)	Reduction of disc space
	L3/L4 and L5/S1, especially at L5/S1.
(iv)	Protrusion/bulging
	L3/4, posterior bulging of the disc at L3/4, L4/5, and most prominent at L5/S1, and all the bulging is symmetrical and circumferential.

41.  Given his views on the MRIs, Wong disagreed with the findings in the 1^st MRI report for the reason that it has not stated any findings of disc herniation in levels L1 to L5, reduction of disc height at L3/4, desiccation of disc at the peripheral at L3/4 and desiccation at L5/S1(which features Wong had positively found from his review of the 1^st MRI film).

F.  MEDICAL LITERATURE

42.  Parties have both prayed in aid of the medical literature to buttress their cases.  The experts are in substantial agreement with the literature.  The main articles discussed during the trial are as follows:

(i)  Biomechanics of Back Pain[15]

43.  Adam is a recognized researcher in this field and his work is generally regarded as authoritative.  In his work, it is stated that the activities that could cause disc prolapse include many manual handling activities such as compression and bending especially when both of these activities are combined such as “falling on the buttocks with the legs stretched out in front or stumbling while carrying a heavy weight.”

(ii)  Natural History of spondylolysis and spondylolisthesis[16]

44.  This article is about a 45-year follow-up evaluation of a prospective study of spondylolysis and spondylolisthesis of 500 first-grade children initiated in 1955, and 30 subjects (“Study population”) who were older than 50 years were located for follow-up assessment.

45.  Of the 500 children, it was found that 22 had unilateral or bilateral pars defects of the lumbar spine at the age of 6 years.  Eight subjects were found to have developed defects between the ages of 12 and 25 years.  Of the 30 subjects, 22 had bilateral L5 pars defects, spondylolisthesis never developed in 4 of these 22 subjects.  Eight subjects had unilateral defects (5 of whom were at L5, and the remaining 3 at various levels at L1, L2 and L4 respectively[17]).

46.  A follow-up was done 40 years later by conducting MRI on these 30 subjects who were then about 50.  It was found that only 2 subjects (who were found to have unilateral pars defect) had no degenerative changes at any level.  Only 2 subjects with bilateral L5 defects had no degeneration of the lumborsacral disc, with no spondylolisthesis.  A slip exceeding 15% was associated with moderate or severe degeneration of the lumborsacral disc.  Only 2 disc-herniations were noted in the follow-up studies of those 18 subjects with spondylolisthesis, and none were at L5/S1.

47.  It is reported in the article that pain was not prominent in the Study population. 18 of the Study population was later found to have a 9% to 30% slip progression after the third decade of life.  The study of the x-rays of the study population of disc generation at the slipped level could explain how an asymptomatic condition would become symptomatic, and led to increased slip in adulthood [18].

(iii)  Relationship Between Radiological and Clinical Variables in Spondylolysis[19]

48.  This study sets out the study and findings on the relationship between clinical and radiological features and is to look for radiological or other variables of prognostic value.  A clear positive correlation of symptoms and functional impairment to radiological abnormalities in lumbar spine pathology (such as disc degeneration and vertebral slipping) is found.  The conclusion of the studies establishes that a lot of patients with spondylolysis may develop symptoms with or without spondylolisthesis.

(IV)  DISCUSSION OF EVIDENCE

A.  THE PLAINTIFF

49.  At the hearing, the Plaintiff – despite having finished all the treatment programmes – still complained of pain of such severity that gives one an impression that his daily activities (including his quality of sleep) had been badly affected.  The said complaints, as will be discussed below, however have not been borne out by other evidence.

50.  According to the medical notes of PMH, the Plaintiff’s main complaint when he attended PMH was lower back pain, which pain had also occasionally radiated to his limbs.  By July 2006, about one year after completing the course of physiotherapy, his pain was recorded to have reduced, and the straight leg raising (“SLR”) readings for both legs were 45°[20].

51.  When the Plaintiff was examined by Kumta in May 2007, the Plaintiff’s condition should have in normal circumstances been improved about 2 years after the accident (and completion of the treatment programme).  The SLR reading should have been higher than 45°. However, the SLR reading (at supine position) recorded in Kumta 1 was 40°[21].  Kumta agreed under cross-examination that the reading of 40° was low because the usual reading for a normal person would at least be 70°, and the difference of 20° and 30° in the readings of sitting and supine SLR (as recorded in Kumta 1) is quite unusual as the readings of the two tests should usually be consistent.

52.  Furthermore, for a further six months after he was examined by Kumta, the Plaintiff was examined by Wong in January 2008. The Plaintiff’s condition, in the normal case, should have been further improved. The Plaintiff’s SLR reading asrecorded by Kumta however was a surprisinglylower degree of only 30°.  Further, the Plaintiff was found to have difficulty in extending his back.  Since Wong did not find the Plaintiff have any muscle wasting of his lower limbs, he was of the view that the reading he had obtained from the test was not consistent.  Wong said that he was unable to account for the severity of the symptoms exhibited by the Plaintiff during the examination.  He further found the presence of many inorganic elements, and one of which was found to be symptom exaggeration.

53.  Wong further found that – in view of the Plaintiff’s complaint of “on and off” back rather than “continuous pain”- the Plaintiff could have only suffered mild injury because a person suffering from a serious injury would usually be suffering from continuous pain.

54.  Apart from the inconsistent readings of the SLR tests, I also find the condition of the Plaintiff as shown in the surveillance tape does not appear to bear out the Plaintiff’s complaints of his residual symptoms.

55.  According to the surveillance tape shown in court, he was seen to be walking, including climbing stairs normally.  I am unable to observe him showing any signs of pain or discomfort at any part of his body (let alone his back).  After having viewed the tape, my overall impression is that the Plaintiff’s daily activities did not appear to have been affected by his alleged back pain.

56.  His evidence that he had difficulty in walking and climbing stairs was not supported by any objective evidence.  I find his evidence regarding his residual symptoms has been grossly exaggerated, and do not find the Plaintiff’s complaints made to the experts and in the evidence  regarding the severity of the residual symptoms genuine.  Furthermore, I also do not think his evidence regarding his consultation with a surgeon in Pakistan and the pain having prevented him from traveling reliable.  I have found that he had probably done so in order to conceal his true reason for his visits to Pakistan – visiting his family.

B.  EXPERTS

57.  An expert when engaged by a party to render expert opinion owes an overriding duty of impartiality and independence to the court.  He should not take on a role of an advocate by taking a particular biased stance for the purpose of advancing the position of the party who has hired him.

58.  The issues should have been rather straightforward.  The experts’ tasks are to state their opinions succinctly.  In this case, the evidence should only be focusing onmatters regarding (i) whether the Plaintiff has pre-existing condition of lumbar spinal defects; and (ii) how would the Plaintiff’s injuries impact on his spine with or without pre-existing condition.

B.1.  Kumta’s evidence

59.  Instead of assisting the court in explaining the basis for reaching the opinion in his reports, Kumta had – rather unsatisfactorily in my view – backtracked his position in Kumta 2 by adducing Kumta 3, and further introduced additional medical literature and terminologies that only serve fussing rather than assisting the court in understanding the issues in dispute.

60.  After having heard his evidence in the course of several days, I find the expert evidence and opinions he has provided are unsatisfactory in the following respects:

(i)    Overlooking important diagnostic documents

61.  When he was instructed to conduct an examination on the Plaintiff, he had already been provided with (by way of background)materials from PMH in which the Plaintiff received treatment.  However, he had in preparing Kumta 1 and Kumta 2, overlooked the 1^stX-ray report that made no positive finding of spondylolisthesis.  This oversight led to the retraction of his earlier concession in Kumta 2 on the pre-existing spondylolisthesis by adducing the additional Kumta 3.

(ii)  Lack of thorough investigation

(a)  No updated x-rays

62.  Before the examination of the Plaintiff on 11 May 2007, Kumta had been provided with the documents listed in paragraph 4 of Kumta 1, which include, amongst others, two reports and films of the 1^st and 2^nd MRI.  He however was not provided with any x-ray films of the Plaintiff.  X-ray has been accepted by the medical profession to be a very important diagnostic tool, in particular in this case, for understanding bony structure of the spine for spondylolysis and spondylolisthesis.  Kumta, when instructed to conduct the examination of the Plaintiff, must have known the importance of x-rays.  Thus, an up-dated x-ray should be an indispensable procedure for a proper evaluation of the Plaintiff’s spine.  It is indeed quite inexplicable that such simple and most fundamental radiographic examination could have been omitted from his examination that he conducted on the Plaintiff.

(b)  No independent review of the 1^st and 2^nd MRIs

63.  Kumta at the time of writing Kumta 1 had already been provided with the reports and films of the 1^st and 2^nd MRIs.  However, instead of making an independent review of the films, he had simply reproduced in Kumta 1 the findings made by the radiologists (See Kumta 1, para.7(f)).  It seems that he only started to take a more serious study of the films when he was tasked with specific questions from the Defence counsel at the hearing.  Inevitably, Kumta’s evidence appears to be confusing most of the time, and even contradictory at times.  For example, Kumta 3 was supposed to be adduced to clarify his earlier views.  In it, he has categorically denied the existence of multi-level disc degeneration, which evidence however is in stark contrast to his findings that I have set out in paragraph 38 above.

(c)  No test done to verify inconsistencies

64.  The readings Kumta obtained from the SLR tests on the sitting and supine postures have a difference of 20° and 30° between the left and right legs. Kumta agreed that the two readings should be more or less the same.  In Kumta 1, he has not explained why there was such an inconsistency.  His evidence at court also does not offer a satisfactory explanation for the difference.

65.  In Kumta 1, it is recorded that the Plaintiff still complained of a host of residual symptoms about 2 years after the accident.  The reading of SLR test Kumta obtained was also admittedly to be rather low (40°), which Kumta only admitted under cross-examination that it was a sign of amplification. Symptom exaggeration, in a case involving personal injury litigation, would have been a very important piece of information that should have been recorded in the report by any expert.  However, he has chosen to omit it in Kumta 1.  Without conducting any objective verification (such as by administering the Waddell test to look for inappropriate signs), Kumta tried to justify on behalf of the Plaintiff the existence of symptom amplification by stating in Kumta 2 that fear avoidance could be a reasonable explanation[22] – which assumption he clearly had no basis of making.  His attempt to make justification unfortunately tends to give me an impression that Kumta seems to have acted as if he were the Plaintiff’s advocate, and have further overlooked his role as an expert that requires him to be impartial.

(iii)   Semantics excess

66.  Rather than giving long-drawn evidence in trying to provide fine distinction of terms (such as differences between prolapse and protrusion on one hand, and degenerative and aging processes on the other), Kumta, as an expert, should have given assistance to the court by focusing the real issues in controversy by, for example, identifying the defects in precise terms of the Plaintiff’s spine in terms of the bones (vertebrates) and the discs.  His opinion that the Plaintiff’s “injury (was) at the L5/S1 disc space” (Kumta 1, para. 9a) is unhelpful for being vague and imprecise as the evidence shows that an injury to a spine could take many variants and forms.

67.  Kumta unfortunately has the tendency of engaging in the discourse of distinction of terms – which in my view should only be reserved for academic dialectic.

(iv)  Shifting opinions

68.  As already discussed above, Kumta, due to his oversight, had to adduce a 2^nd supplemental statement by adducing Kumta 3.  The consequence of his omissions in conducting some very important investigations have led Kumta to change his stance as the trial progressed. Examples of such instances can be gleaned from the followings:

(a)   In paragraph 6 of Kumta 2, when he was commenting on paragraph 39 of Wong’s Report, he omitted (as shown in Kumta 3) stating his disagreement with Wong’s finding of multi-level disc degeneration;

(b)  Conceding during cross-examination that the Plaintiff was found to have defects in various levels of the lumbar spine of mild lippings at L2 to L4, blunting at L4, reduction of disc height at L3/L4, a bulge at L3/L4, L4/L5 and minor bulge at L2/L3 (which findings as discussed in paragraph 63 above are found to have either been omitted from or inconsistent with the findings stated in all his reports);

(c)  Kumta qualified his opinion (during cross-examination) that the statement he has made in paragraph 5 of Kumta 2 that the fall has resulted in a worsening of the  spondylolisthesis at L5/S1was too strong due to the admittedly vulnerable back the Plaintiff had- which condition carried a real risk of the symptom becoming symptomatic without the accident.

B.2  Wong’s evidence

69.  Neither is Wong’s evidence entirely satisfactory, for it also contains omissions by having failed to:

(i) Write in paragraph 21 of his report of (insignificant) disc desiccation in other levels;

(ii)   Mention that disc protrusion is more prominent at L5/S1.

(iii) Make it clear that he had used the terms “bulging” and “protrusion” interchangeably.

70.  Furthermore, Wong has also accepted under cross-examination that although he has stated in his report (para.5) that the Plaintiff’s injury was compatible with a simple back contusion, the fall could also have resulted in more than a simple contusion.

B.3.  Discussion

71.  In this case, I am satisfied that both experts are experienced orthopaedic surgeons, and accept that they are qualified to give evidence as experts.  After having considered the conflicting views of the two experts against the totality of other objective and uncontroversial evidence, I am inclined to find that Kumta’s role as an independent expert- as a result of his constant shifting of opinions, the number of back-peddling of his position, and the contradictory evidence – has been called into question.

72.  On the other hand, in spite of Wong’s omissions I have set out above as well as those listed in Annex 3 to Mr. Hingorani’s Supplementary Submission, I do not find that they have affected Wong’s reliability as an expert. I have found his evidence and opinions are on the whole consistent, and his assessment of the Plaintiff’s condition and symptoms are more thorough.  By way of illustration, for example, Wong had done much more thorough physical examination of the Plaintiff, had checked inconsistency by conducting a simulation test, and had further done his own independent review of the MRI films of the 1^st and 2^nd MRI scans and arranged for an undated X-ray.

73.  I further find Wong’s evidence to be firm, and that he has not changed his view concerning the various spinal problems the Plaintiff was suffering.  He has stuck to his opinion that the Plaintiff had pre-existing in more than one level of the spine and further that the condition was unrelated to the accident.

74.  For the reasons above, I am inclined to agree with the criticism by the Defendants’ counsel, Mr. Sakhrani, that Kumta has failed to support his opinions with relevant facts (as evidenced by the evidence given under cross-examination)[23].  In the circumstances, if there were any divergence of opinions between the two experts, I would prefer to those of Wong’s.

(V)  FINDINGS

A.  THE ACCIDENT, INJURIES AND RESIDUAL SYMPTOMS

75.  The Plaintiff fell on the buttocks and lower back.  The x-rays discussed above show that the Plaintiff did not have any fracture of the bone. The Plaintiff was discharged on the same day after having been given injection for pain reduction.  Although lordosis is shown in both the 1^st x-rays and those x-rays arranged by Wong, I am unable to say – without a comparison having made with any previous x-ray films – whether the reduced lordosis was due to the accident or simply a normal curvature of the back.  I am therefore unable to conclude that it was a serious accident, but find that the impact of the fall should not likely be severe.

76.  I find that before the Plaintiff started his physiotherapy treatments on 27 June 2005, the accident has likely caused him some considerable pain but it was not debilitating since he was able to walk unaided in all the attendances at PMH.  In the first 9 months of the accident, I find that his chief complaints (according to the medical notes from PMH) were mainly lower back pain, which pain had radiated to the right leg, and wasoccasionally more severe at night.

77.  Apart from the complaint of back pain, the Plaintiff was found to have complained to Wong about a bilateral knee pain one month after the accident.  Mr. Sakhrani submitted that the said symptom was unrelated to the accident (as Wong opined).

78.  Mr. Hingorani, counsel for the Plaintiff, referred to the medical records of PMH, which he said showed the Plaintiff’s complaint of knee pain in fact happened much earlier.

79.  After having perused the medical records from PMH, I think what Mr. Hingorani has said is only partially true.  The only mention of pain of the knee is the PMH Spinal Assessment Form dated 20 June 2005[24], which recorded on and off pain on the left knee.  The subsequent medical notes contain no complaints of any knee pain.  Given (as I have found) the tendency of the Plaintiff to magnify his symptoms, I find that it is unlikely that he was still suffering from any residual knee pain on the date of the examination by Wong.  His knee pain was probably be present shortly after the accident, and was probably due to the back pain having radiated to his limbs (according to the medical notes from PMH).  More importantly, given my finding of the Plaintiff having exaggerated his symptoms when he was examined by the experts and giving evidence in court, I find that the Plaintiff’s complaint of knee pain made to Wong was unlikely to be genuine.

80.  The radiographic evidence discussed above only shows that the Plaintiff had grade 1 spondylolisthesis (which has a slippage of less than 25%) at L5/S1 and pars defect at L5.  These findings, as to be shown below, are far from complete.

81.  As already discussed above, the experts have found from the MRI films various defects from L2 to S1.  I therefore find that the radiologists in the 1^st and 2^nd X-ray and MRI reports have only reported the most prominent defects – which are disc protrusion, desiccation and disc height reduction at L5/S1, but failed to record other defects from L2 to S1.  The omission is probably due to mis-interpretation or oversight owing to the possibly relatively insignificant defects (as noted by both experts).  Hence, I do not find the radiographic reports have accurately and comprehensively set out all the defects of the Plaintiff’s spine.  I accept Wong’s evidence (in paragraph 41 above) that the findings in these reports are incomplete.

82.  In a MRI firm, a normal disc can be seen to be well contained within its central area and has a white appearance (examples of a normal disc can be seen as shown in the L4/5 of 1^st MRI[25] and at L4 of the 2^nd MRI[26]).

83.  On the other hand, when a disc is desiccated (i.e. devoid of water content), it would appear black in a MRI film.  According to Wong, disc desiccation needs a long time to develop rather than as a result of an acute process.  Based on this evidence, I find that when disc desiccation is shown on a radiograph, the desiccation would have likely occurred for quite sometime and it would least be likely due to a single one-off trauma.

84.  After having looked at the MRI films (Exh. P2) produced at the hearing, I could see that the disc space at the area at L5/S1 had a black appearance – which, according to both experts, is an indication of severe disc desiccation. Further, I was told that a severely desiccated disc would likely lead to a reduction of disc space, and the breaching of the annulus ring by the extruding of the materialscontained inside the disc.  In the circumstances, I accept Wong’s opinion that there are spondylolysis and spondylolisthesis at L5/S1.  Further, I find that both experts are in substantial agreement that at the area of L5/S1, there is severe desiccation or prolapse and reduction of disc space.

85.  Notwithstanding the slight differences in the locations and the nature of the defects as Kumta and Wong have found[27], both experts nonetheless confirmed that the Plaintiff also had disc desiccation at locations from the L1 to L5 levels, and degeneration at various levels of the spine, including L5/S1.  As already discussed in paragraph 83 above, when desiccation is seen in a radiograph, it would have likely occurred for a long time. Thus, given the prominence of the defect as shown at the area of L5/S1 in both of the MRI films, I agree with Wong that the Plaintiff’s pre-existing degeneration at the different levels of the spine was relatively minor while the degeneration at  L5/S1 should likely be more severe.

86.  According to the experts, when desiccation occurred at these areas, the associated adaptive changes would take place in the form of bulging (change in shape), blunting of the vertebrates, disc lipping, reduction of disc height as a result of displacement of materials beyond the normal ring of a disc (prolapse or protrusion) and formation of new bones (ostephytes).  Therefore, the various conditions as found by the experts in paragraphs 38 and 40 above should likely be the result of the adaptive changes brought about by the pre-existed degeneration changes.

87.  In this case, the Plaintiff’s fall was on his buttock, the impact would have likely been at the area at L5/S1, and less likely to be in the areas above L5.  Thus, I tend to think that the injury he would have suffered from the fall would likely to be at the area around L5/S1.

88.  What precisely however is the injury suffered by the Plaintiff at L5/S1?

89.  Kumta has not identified what injury it was in his reports, and only said it was an injury (see Kumta 1, para. 9a), and Wong said it was a back contusion (see Wong’s Report, para. 25).  The MRIs (which films I have also seen) show that there was an annular tear at the ring at the L5/S1 disc.  The experts had used different terms of “bulging”, “protrusion” and “prolapse” to describe the injury.

90.  As a consequence, a large amount of time in the proceedings have been taken up by the parties in trying to establish whether the accident has caused the prolapse at L5/S1 or the prolapse as now appear in the radiographic evidence was pre-existed.  Despite the lengthy cross-examination, both experts however have not been able to say definitely whether the accident has caused the prolapse at L5/S1.  In the absence of any evidence on the Plaintiff’s condition before the accident, and given the pre-existing condition as I have found, I think there are probably two scenarios:

(i) The Plaintiff might already have developed prolapse before the accident with or without symptoms.  The impact of the accident has worsened or triggered out the Plaintiff’s symptoms.

(ii)   The Plaintiff did not have prolapse before the accident but had a severely degenerated disc at L5/S1, which had a much higher likelihood of collapse, and resulted in the shortening of the disc height with the resultant nucleus extruding out from the annular ring.  The impact of the fall might have likely brought about prolpase to the already pre-existed desiccated L5/S1 disc.

91.  When discussing the question of whether the accident had or had not caused the prolapse, Mr. Hingorani in his Supplemental Submission (para.21) suggests that a fall would have caused a physical injury (causing the annular tear) not a chemical reaction (pre-existing extruded material to suddenly causing pain) – although a chemical may set in later.  Based on this supposition, he submits that the annular tear could have only been caused by the fall.

92.  There has been no evidence adduced to support Mr. Hingorani’s said conclusion.  Neither does the medical literature discussed by the experts confirms support the said statement.  On the other hand, from the medical literature that has been discussed by the experts, it appears that prolapse is a very complex symptom as it could arise in a number of ways. (See para 43 above)  Factors such as age (age-related degeneration), environmental factor such as heavy manual work or high intensity activities (non age-related degeneration) (see section F (ii) above) could lead to prolapsed disc.  Given the nature of his pre-accident occupation (having been a manual labourer for 10 years), the Plaintiff could be said to have engaged in activities that carried a higher risk of disc prolapse.

93.  In the absence of evidence regarding the Plaintiff’s spinal condition before the accident, I think it almost verges upon the impossibility for any one (including experienced orthopaedic surgeons such as Kumta and Wong) to make a definite assessment one way or another. I am therefore unable to accept Mr. Hingorani’s said supposition.

94.  On the totality of the evidence, I find that the accident had caused an injury to the disc at L5/S1 by either causing the breaching of the annulus ring to the already vulnerable pre-existing degenerated disc at L5/S1 (if prolapse had not occurred before the accident) or worsening the already prolapsed L5/S1 disc.  Hence, Kumta is not entirely wrong by stating that the Plaintiff suffered an injury at L5/S1 (which Kumta had apparently refrained from making a definite finding that the injury was a prolapsed disc).  On the other hand, neither am I able to say Wong is wrong when he opines that the accident has triggered out the Plaintiff’s back symptoms.

B.  Whether the Plaintiff was asymptomatic?

95.  It is the Plaintiff’s case that the accident has caused the Plaintiff’s asymptomatic spine to become symptomatic.

96.  Apart from the evidence of the Plaintiff, there is no evidence that whether the Plaintiff, (with those pre-existing conditions that I have found him to have suffered) was asymptomatic or not before the accident.

97.  In this respect, I think it is necessary to review some of the medical literature with reference to the Plaintiff’s pre-existing conditions.

98.  I have found the Plaintiff before the accident had various pre-existing conditions, particularly more prominent the area of L5/S1. The severe desiccation at L5/S1 disc thus would mean that he either had a prolapse at L5/S1 (though not might not be so severe before the accident) or a vulnerable back with a tendency to collapse.

99.  According to Kumta’ evidence, he said it was possible to have a disc protrusion but remain asymptomatic.  Wong was not able to come to any firm view as to whether the L5/S1 disc was prolapsed or not before the accident.

100.  Wong however in his examination of the Plaintiff found diffuse tenderness rather than localized pain at L5/S1, and therefore took the view that the pain did not come from the abnormality seen at L5/S1[28] (suggesting that the Plaintiff’s pain might have originated from other areas of the spine).

101.  Given my finding of the Plaintiff’s tendency to exaggerate his symptoms, I do not think that I can rely on his complaints to Wong, including his complaints of diffused tenderness.  His complaints would have likely been tainted by his motivation to embellish the symptoms with a view to obtain a favourable assessment.  He might have thought (erroneously perhaps) that the more locations the pains were found, the more severe would his condition be.  Hence, I am not inclined to rely on the complaint of diffused tenderness as being an accurate indication of the Plaintiff’s symptoms.

102.  It is known that disc prolapse may be totally asymptomatic, and if disc prolapse does become symptomatic, it does so by compromising a spinal nerve or its roots[29].

103.  In his review of the MRI films, Wong did not find any nerve root compression.  I am therefore unable to say whether the pain the Plaintiff complained of was due to the most severe defect he had at L5/S1[30].

104.  The Plaintiff was found to have mild (10%) spondylolisthesis at L5/S1.  According to the literature, a small percentage of slippage is usually not associated with high risk of symptoms (see para. 47 above).  Whilst spondylolysis itself may develop symptoms without spondylolisthesis (see para. 48 above), and given the relatively mild pre-existing degeneration (as shown by the radiographic evidence), the lack of nerve root compression (which would generally elicit symptoms) and lack of any evidence of symptoms prior to the accident, I find – in spite of my finding of the Plaintiff having exaggerated his symptoms– that the Plaintiff is likely to be asymptomatic.  Were he symptomatic, I think the symptoms would unlikely be significant but rather mild. I find the accident has likely precipitated the symptoms that I have found the Plaintiff to have been suffering.

C.  CONCLUSION ON ISSUE I

105.  In light of the findings above, my answers to the sub-issues set out in paragraph 9 above are as follows:

(i) Yes. There are other conditions as found by Wong set out in paragraph 40 above.

(ii)   Yes. The Plaintiff was asymptomatic

(iii) The accident had either caused a degenerated L5/S1 disc to develop to a prolapsed disc, triggering residual symptoms or caused a asymptomatic prolapsed disc to become symptomatic with the associated residual symptoms

106.  In conclusion, the answer to the first issue in paragraph 6(1) above should be answered in the positive.

D. Had it not been for the accident, would the Plaintiff’s spine have remained symptom free or would there have been painful progression as time passed by reason of the degenerative condition alone?

107.  It is the Plaintiff’s case that but for the accident, the Plaintiff was unlikely to become symptomatic notwithstanding the three pre-existing condition of spondylolysis, spondylolisthesis and degeneration.  In this regard, the Plaintiff is relying on Kumta’s opinion stated in Kumta 2(at para. 5) that the fall “has resulted in a worsening of the spondylolisthesis at L5/S1.  If not for the injury it would have been very unlikely for a stable spondylolisthesis to have progressed and become symptomatic.”

108.  The Defendant however contends that given the Plaintiff’s pre-existing condition and the nature of his job (heavy manual labourer), it is probable that even without the accident, the Plaintiff would have become symptomatic even without the accident, and he would be rendered unsuited to carry on with his manual labour job[31].

109.  This question important as it may be is almost impossible to answer because we do not have any evidence on the Plaintiff’s spinal condition before the accident.  Neither could the experts provide definite answers to the question.

110.  No matter what conclusion that I come to, the finding I am going to make is rocket science with arithmetic precision. Despite the assistance of the medical experts, I would still have to take into account all the available evidence that has been adduced in this case, and finally weigh up all the inherent probabilities and improbabilities before reaching a conclusion within a reasonable range of possibilities.

111.  Vigorous cross-examinations of the experts were conducted on this issue.  Although Kumta had stated in Kumta 2 (para. 5) about a worsening of the spondylolisthesis, he has in his evidence under cross-examination as discussed in paragraph 68(c) above qualified that statement, and conceded that given the Plaintiff’s vulnerable back, there was a real risk of the condition becoming symptomatic without the accident.  Kumta also agreed that mechanical strain would be sufficient, though not inevitable, for the condition to become symptomatic.

112.  Wong opined that the fall was a minor trauma (which I accept), even though it might have caused prolapse.  He stated that a person with a pre-existing spondylolysis, spondylolisthesis and disc degeneration (even if he were asymptomatic), a fall on the buttocks could aggravate all of those conditions and make them symptomatic.  He agreed that many people with degeneration were symptom free, and that a person with spondylolysis and spondylolisthesis, when he is in the third decade (i.e, around 30s and 40s), the slippage slows or even ceases.

113.  Wong had also said that since the Plaintiff performed physically demanding job, and given his pre-existing condition, it was highly likely that he would be more prone to develop symptom in the future.

114.  Mr. Hingorani in his Final Submission said that both experts were unable to give an opinion that the Plaintiff would have or was likely to become symptomatic even without the accident.  I do not think it is entirely true.

115.  Kumta said in his testimony under cross-examination that given the vulnerability of the Plaintiff, and his pre-existing conditions of spondylolysis, spondylolisthesis and disc-degeneration at the time of the accident, there was a “real possibility” that the Plaintiff would have become symptomatic if he had carried on with that heavy work.

116.  The pre-existing condition (apart from the area at L5/S1) as I have found is mild and in fact so insignificant that they had either been disregarded or overlooked by the radiologists.  Wong also agreed that they were not serious.  I have found that the accident might have caused a degenerated L5/S1 disc to develop into a prolapsed L5/S1 disc (if the disc was not prolapsed before the accident) or triggered off symptoms from an asymptomatic prolapsed L5/S1 disc.

117.  The experts’ opinions given under cross-examination both seem to be in agreement that given the Plaintiff’s job nature and his pre-existing condition, there is real possibility that the Plaintiff would have likely to become symptomatic within five or six years.  There is no clarification as to whether it was five or six years from the date of the accident or from the date of trial.

118.  According to the literature, spondylolisthesis is not a determining factor in causing pain but the more serious spondylolisthesis (such as a slip of about 9% to 30%) would lead to symptoms.  In the present case, the Plaintiff was found to have a slip of 10%, which is not severe.  The Plaintiff is now in the third decade of his life.  At this stage, progression of the slip, in a normal circumstance, may likely slow down or cease.  However according to the literature (see para. 47 above), when a person reaches the age of 50, (and due to degeneration) an otherwise asymptomatic condition may become symptomatic.  Whilst the Plaintiff is now at an age when progression would likely have slowed down or ceased, I am inclined to think that – owing to the heavy manual labour job and the already vulnerable back- there is likelihood that without the accident, the Plaintiff would become symptomatic (which would probably be after his fourth decade) even without the accident.

E.  CONCLUSION ON ISSUE II

119.  In conclusion therefore, the answer to the second issue framed by Suffiad J. would be that had it not been for the accident, the Plaintiff’s spine would have been in painful progression as time passed by reason of the degenerative condition.

(VI)  QUANTUM

A.  PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

120.  The Plaintiff claims under this head a total amount of $250,000 for the disabilities and loss of amenities as a result of the injury to his lumbar spine.

121.  Mr. Hingorani cited four authorities in support, which are Ashok G.C v Kam Kee Construction Works Limited and Costain – China Harbour Joint Venture (unrep.) HCPI 691/2004 (Master Hui, 29 March 2006), Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, Limbu Netra Kumar v Yau Lee Construction Co. Ltd and Anr. (unrep.), HCPI 234/2002 (Suffiad J, 25 April 2007), Tam Wai Tuen v Seiko Screw Manufacturing Limited (unrep.) HCPI 383/2008 (Recorder B. Yu, 18 December 2009).

122.  The Defendant however contends, given the Plaintiff’s pre-existing condition that the appropriate sum under this head should only be $100,000, relying on Lau Chiu Wah v Kwong Key Construction and Engineering Ltd. And Ors. (unrep.) HCPI 581/1998 (Suffiad J, 28 April 2000), Tam Yuen Hoi v Chan Muk Sing & Ors. [2003]HKLRD K16, Tam Kwok Man v The Kowloon Motor Bus Co.(1993) Ltd. (unrep.), HCPI 755/2001 (Beeson J, 11 July 2003), Poon Kwok Wing Ernest v Airport Authority Hong Kong (unrep.) HCPI 305 of 2004 (Fung J, 18 November 2008).

123.  In considering the appropriate award to be made, I should recap my findings in Section (V) above I have found the Plaintiff has suffered a pre-existing condition of his lumbar spine.  Although I have found that the accident was not serious, and that the Plaintiff has indeed exaggerated his residual symptoms and disabilities when he was examined by Wong, there is however objective medical evidence that indicates the extent of the pain resulting from the accident.

124.  Immediately after the accident, I find that the Plaintiff’s pain must have beenconsiderable as evidenced by the medical note dated 2 June 2005 that he required volteren injection for pain relief.  He commenced physiotherapy treatments by conservative treatments by the use of hot pad, back and limbs mobilization exercises on 20 June 2005 for a period of 3 months between June and August 2005 for a total of 7 sessions with the last session ending on 17 August 2005.  From the PMH’s medical notes, I find that the Plaintiff’s symptoms during this period was mainly back pain, which was occasionally more severe at night, and radiated to the right leg.  Physiotherapy has improved his condition.  The residual condition he suffered was, according to my finding, likely to have been attributed by his pre-existing condition of having a vulnerable spine.  I further find that the complaints of pain to the occupational therapist and the experts as well as at court were likely to have been exaggerated, which was motivated by a desire to obtain a more favourable award in this claim.

125.  With these observations, I will now consider the authorities cited.

A.1.  Plaintiff’s authorities

126.  In Ashok (supra), the court awarded a sum of $180,000 to a 43-year old (38 at time of accident) plaintiff for his back pain.  The plaintiff was hospitalized for a very short period on two occasions, received physiotherapy for about 6 months and was granted sick leave for about 1 year.  There was pre-existing condition of spondylolysis and degenerated disc at L4/L5 but no root compression.  The court found that the plaintiff suffered from residual back pain caused by a combination of the degenerated L4/5 disc and the previous asymptomatic L5 and the pain was not as serious as alleged by the plaintiff.

127.  Chan Kam Hoi (supra.), the plaintiff (45 at the time of the accident) was found to have a “quite severe” pre-existing condition, and that if the accident had not occurred, due to the pre-existing condition the plaintiff would have suffered a deterioration in his back which was likely to have forced him to give up his pre-accident occupation by the age of 55.  The Court of Appeal held that an appropriate global discount for damages can be applied to reflect the likely risks of a pre-existing condition leading to disability and loss (at 959C).

128.  Limbu Netra Kumar(supra),  the plaintiff suffered a fractured skull after having fallen some 2 meters, and was hospitalized for 3 days, and suffered back pain.  He suffered from spondylolisthesis of L4, which was pre-existing and asymptomatic.  The accident triggered off the onset of symptoms.  But for the accident, grade I spondylolisthesis may have remained asymptomatic for years (para.69).  The judge took the view that $400,000 would be appropriate for the fracture, the hearing loss and spondylolisthesis.  However, he discounted the award by 30% and granted $280,000 on the ground that the plaintiff (according to the medical evidence he accepted) would likely have developed back pain from the pre-existing condition before 40 years of age had he continued in his pre-accident work as a formwork carpenter and he was 23 years old at the time of the accident.

129.  Tam Wai Tuen (supra.), the court awarded $250,000 to a plaintiff of 53 years of age (at the time of the accident) for a sprained back with a pre-existing degenerative spine which predisposed him to back pain.  He also had a previous back pain but the court accepted that he was free of back pain before the accident.

A.2.  Defendant’s authorities

130.  In Lau Chiu Wah (supra.) (45 at accident and 49 at trial), the court awarded $100,000 to a plaintiff who suffered back pain after a fall on his buttocks.  He was never hospitalized nor underwent any operation.  The plaintiff had suffered a back injury before the accident, and had pain in his back for a long time.  The court in assessing the quantum had taken into account the plaintiff’s pre-existing condition in the form of the degenerative changes to his lumbar spine and also the back injury before the accident, for which he had been compensated.

131.  In Tam Yuen Hoi (supra.), an award of $50,000 was awarded to the plaintiff who suffered injury to his back with a pre-existing degeneration of the spine and mild protrusion of the L4/L5 disc, which was symptomatic prior to the accident.  He was also found to have exaggerated the symptoms.

132.  In Tam Kwok Man (ibid.), the 50-year-old plaintiff on the date of trial (47 at accident) was awarded $150,000 after the Judge had found that the plaintiff’s injury was a minor contusion of the back leading to residual pain for some months.  There was no permanent or structural damage, bone or disc damage.

133.  In Poon Kwok Wing Ernest (ibid.), the 55-year old plaintiff (at the time of the trial, and 47 at the time of the accident) who suffered concussion, contusion to the neck and back, sprain injuries to knee and ankle was awarded $55,000 after the Judge discounted the original award of $100,000 by 45% for the pre-existing condition after having accepted the expert’s opinion that the plaintiff’s back would deteriorate after 5 to 8 years even without the accident.

A.3.  Discussion

134.  I have found the Plaintiff had pre-existing condition of degenerative changes of spondylolysis and spondylolisthesis, and disc degeneration, he (as agreed by Kumta) had a vulnerable back before the accident.  Further, according to Kumta, there is a “real possibility” that the Plaintiff’s spinal conditions would have become symptomatic within five or six years even without the accident.

135.  The Plaintiff in this case, was younger than the plaintiffs referred to in the authorities.  Like many of those plaintiffs, his work was also manual labourer.  The pre-existing conditions (apart from the desiccation at L5/S1) however are not serious, and I have found that the Plaintiff was likely to be asymptomatic.  Hence, I find that the accident has triggered all the pain and residual symptoms he complained of (though whose symptoms I have found to have been exaggerated).  I find that the injury he had suffered at the accident was relatively minor as reflected by the immediate discharge from the hospital, and absence of bone fracture.  After having considered the comparable cases cited by counsel discussed above, I think the Plaintiff’s condition is quite similar to but less serious than the plaintiff in Ashok (supra.), and more serious than the plaintiffs in Lau Chiu Wah (supra.), Tam Yuen Hoi (supra.) and Poon Kwok Wing Ernest (supra.), which plaintiffs were found to be symptomatic.  The Plaintiff’s condition could also be compared to that of Tam Kwok Man(supra.).  Hence, I am inclined to think that the appropriate award should be $150,000.

B.  PRE-TRIAL LOSS OF EARNINGS

B.1.  Pre-accident Income

136.  The Plaintiff worked for the Defendant as a general worker for 10 months before the accident.  Mr. Hingorani submitted that the Plaintiff’s salary before the accident was $13,335 per month.  However, this amount is neither supported by the Plaintiff’s witness statement (in which he said $13,000 per month[32]) nor the salary slips produced by him.  Thus I accept Mr. Sakhrani's contention that the pre-accident salary should be $13,000 per month.

B.2.  Period of total loss of earnings

137.  The Plaintiff was granted two periods of sick leave with the first period from 2 June 2005 to 12 May 2006, and the second one from 19 June 2006 to 24 July 2006.

138.  In Wong’ Report (para.37), he described the Plaintiff’s injury as a simple back contusion and was of the view that the appropriate sick leave should be about 3 to 4 months.

139.  The use of the term “contusion” to describe the Plaintiff’s injury had been subject to vigorous cross-examination.  On this particular point, Mr. Hingorani used 16 paragraphs in all in his Final Submission, suggesting Wong’s unreliability as an expert, and how he had underplayed the seriousness of the Plaintiff’s injury, which is a disc-injury at L5/S1.

140.  After having made the findings above regarding the Plaintiff’s injury, and the evidence regarding the two experts, I do not think it matters which term should have been used to describe the Plaintiff’s injury.  I accept that the impact of the fall would have caused him residual pain at his back.  I note that after his last session of physiotherapy at the PMH ended on 17 August 2005, the Plaintiff received no more sessions at the government hospital after that day.  Although I have found in the medical note from PMH dated 6 January 2006[33] an entry of “private physiotherapist”, the Plaintiff however has given no evidence that he had received further physiotherapy.Nor was there any claim for the costs of private physiotherapy.  I have not however overlooked the Plaintiff’s evidence that he had received some form of treatment while he was in Pakistan.  Given my rejection of the Plaintiff being a reliable witness for the reasons stated in paragraph 56 above, I am not inclined to attach much weight to the evidence regarding treatment in Pakistan.

141.  As a matter of fact, in Kumta 2 in reply to the Wong’s Report, Kumta has not disputed the reasonableness of the said period of sick leave Dr. Wong opined.  Hence, I believe that after a period of about 4 months, the Plaintiff had almost reached the maximum stage of recovery.  Is it then reasonable for the Plaintiff not to seek any work that fitted his condition and be compensated for a full-loss?

142.  According to the Occupational Therapist Report[34], the Plaintiff, upon conclusion of the physiotherapy, commenced a course of work hardening program, at the frequency of 3 sessions per week from 4 January 2006[35].  After a period of 2 months of occupational therapy, the Plaintiff was assessed (according to the OT Rehabilitation Outcome Report dated 3 March 2006[36]) to be unfit to return to his pre-accident job, and was advised to change his occupation.  He was discharged from training.

143.  Although the Plaintiff was referred to undergo a course of working hardening programme after completion of the physiotherapy treatments, I do not think by it would be a sufficient justification to allow the Plaintiff to stay idle by virtue of the sick leave certificates.  It is not reasonable for the Plaintiff to do nothing if his physical condition shows that he could in fact reasonably do some lighter duty work.

144.  According to the medical records from PMH, which have been helpfully summarized and annexed to the Plaintiff’s Final Submission (Annex III), the Plaintiff’s condition is observed to have improved substantially after the course of physiotherapy, as evidenced by the summary of the notes of the following dates:

(i)    12 September 2005

Ø   General condition good

Ø   Walk unaided

Ø   Power – 5/5

Ø   Mild paraspinal weakness increase

Ø   Mild back tenderness

Ø   SLR – 40 on both sides – limited by pain

Ø   Sensation intact

(ii)   1 October 2005

Ø   Walk unaided

Ø   Range of movement good

Ø   Decrease in extension

Ø   Tender – low middle back

(iii)   4 October 2005

Ø   General condition – good

Ø   Back: mild tenderness over right lumbar region, mild paraspinal muscle spasms over right side, forward bending to knee only, extension stiff.

Ø   SLR – left 20, right 30 – limited by back pain

Ø   Power full – on both sides

Ø   Sensation normal

Ø    Reflexes normal

(iv)    25 November 2005

Ø   Back pain decrease

Ø   Walk unaided

Ø   MP weakness

Ø   No numbness

Ø   SLR- 70/80

Ø   Need analgesic

145.  The above medical records show that by the end of November 2005 before the commencement of the occupational therapy, the Plaintiff’s condition was such that he should be able to at least perform some light duty job such as watchman, supervisor, petrol station attendant, which occupations have been opined by both experts to be suitable for the Plaintiff.  I do not accept it is reasonable for the Plaintiff to only start looking for alternative employment upon the expiry of sick leave period granted by the government doctor.  Despite the occupational training of 3 times at week, I cannot find any justification as to why the Plaintiff could not have started doing some light duty job on a part-time basis.  There is simply no evidence before me that he had ever made any attempt to do so.  Hence, I find that as from December 2005 until the conclusion of his occupational therapy in March 2006, he should have reasonably earned half of the salary of a light duty work.

146.  The Plaintiff, upon completion of the occupational training, was found to be unfit to return to his pre-accident job. I am of the view that the Plaintiff would have a duty to mitigate his loss by finding alternative employment on a full time basis as from April 2006.  In the circumstances, I take the view that the reasonable sick leave period would be around end of November 2005, a total of 6 months.

147.  Hence, notwithstanding Wong’s opinion that the reasonable period of sick leave of being about 3 to 4 months, I think in the present circumstances of the case, it is reasonable to allow the Plaintiff sick leave until the end of November 2005.  By April 2006, the Plaintiff should have been able to work in a light duty job full time.

148.  Mr. Sakhrani contented that the Plaintiff should only be awarded for loss of earnings for 1 month on the ground that the Plaintiff had complained to Wong of a bilateral knee pain allegedly to have occurred 1 month after the accident, – which pain, according to Wong, was unrelated to the accident.  Mr. Sahkrani therefore contended that the unrelated knee pain would have in any event prevented him from doing the pre-accident work even without the accident.

149.  As I have found in paragraph 79 above that the knee pain was caused by the back pain, and hence was related to the injury.  In any event, given my finding of the Plaintiff having exaggerated his symptoms, and my rejection of his evidence about the severity of the residual symptoms, I do not think that the knee pain would have in any event be a relevant issue in the consideration of this head of damage.

150.  In the circumstances, I find the Plaintiff suffered from total loss of earnings for 6 months, which total amount is calculated as follows:

   $13,000 x 6 months = $78,000.

B.3.  Partial Loss of Earnings

151.  The Plaintiff had following jobs after the accident:

a.   Security guard with KMF Security from November 2007 to February 2008, with a monthly salary of $4,800.  He had earned $14,400 altogether.

b.  Security guard with Hip Hing Construction from September 2008 allegedly for 2 months when he was fired with an average salary of allegedly to be at $8,000.  However, the Plaintiff only had salary receipts from Hip Hing for the month of September in the sum of $4,190.  However, in his bank account, there is an entry on 31 October 2008 a deposit described as “salary” in the sum of $8,525[37].

c.  As security guard for China Overseas since December 2008 until March 2009 when he quit to go back to visit his sick mother. He was paid $5,900 plus allowances.  According the Plaintiff’s bank account statements[38], the Plaintiff’s wages for these 4 months were respectively $4,600, $5,993.30, $5,104.70 and $3,168.30.

152.  The Plaintiff’s total income for an aggregate period of 10 months is found to be in the total sum of $45,981.30 ($14,400 +$4,190+ $8,525 + $4,600 + $5,993.30 + $5,104.70 + $3,168.30).  The average should only be $4,600 per month.

153.  Mr. Hingorani however in his Final Submission has conceded that the reduced monthly earnings to be at $7,353.  As it has appeared that the Plaintiff might not have worked the entire month during those 10 months’ period, I think the figure of $7,353 adopted by Mr. Hingorani should be a reasonable income for the alternative employment.

154.  Between December 2005 and March 2006, I have found that the Plaintiff should have reasonably be able do part-time alternative employment, earning probably half of the amount of the alternative employment.  Thus, the reasonable earnings he could have made would be around $3,676.50. Hence, the monthly loss for this period would be $9,323.50.  His partial loss of earnings for the four-month period from December 2005 to March 2006 would be $37,294 ($9,323.50x 4).

155.  I find that the Plaintiff as from April 2006 was capable of returning to full time work in the alternative employment, with a reduced income of about $7,353 as accepted by Mr. Hingorani.  Hence, he has suffered partial loss of income of $5,647 ($13,000 - $7,353) per month.

156.  Before the hearing, the Plaintiff after the expiry of the government sick leave period as discussed in paragraphs 13 to 15 above, gone back to Pakistan 3 times for a total 15 months.  The Plaintiff should not be entitled to be compensated for any loss of income during this period.

157.  From April 2006 (the month when I find that the Plaintiff was fit to return to full time alternative employment) to the last day of hearing on 24 April 2010 is a total of 48 months and 24 days.  After deducting 15 months for the Plaintiff’s absence from Hong Kong, the total pre-trial period for partial loss should be 33 and 24/30 months.

158.  Hence, the total pre-trial partial loss from April 2006 until the last day of trial should be $190,868.60 ($5,647 x 33 and 24/30 months).

B.4.  Total pre-trial loss of earnings

159.  The Plaintiff’s total pre-trial loss of earnings is therefore in the sum of $ 306,162.60 ($78,000+ $37,294 +$190,868.60).  As the Plaintiff has earned a total of $45,981.30 before the hearing, this sum should be deducted from the amount of $306,162.60.  The total pre-trial loss of earnings is therefore $260,181.30.

C.  POST-TRIAL LOSS OF EARNINGS

160.  In the Revised Statement of Damages, the Plaintiff claims an award of $1,732,115 under this head.  Mr. Hingorani in his Final Submission asks for an amount of $1,284,480 on the basis that the Plaintiff could have been but for the accident able to earn an income of about $14,690 per month, which is arrived at by adopting a reduced income of $8,000 and a multiplier of 16.

161.  Mr. Sakhrani contends that an appropriate discount should be applied to the multiplier, relying on the case of Lai Sau Keung v Maxcredit Engineering Limited & Anor. [2004] 1 HKC 434, and quoting a passage of Le Pichon JA at 447G:

 “the reduction must not only account for the inherent risks involved in doing heavy construction work on construction sites but also reflect the risk associated with the plaintiff’s pre-existing condition of degeneration of the spine.”

162.  On the point of discount for pre-existing condition, Mr. Sakhrani further refers to the cases of Ashok G.C (supra.) and Limbu Netra Kumar (supra.), and contends that a full multiplier of 13 is to be further discounted to 6 for a 34 year-old manual labourer.

163.  In the case of Lai Sau Keung (supra.), the plaintiff was not 34 (as Mr. Sakhrani has mistakenly stated) but 44 on the date of trial, and it was accepted in that case 12 was the correct starting point before a global deduction of the multiplier to six (see  Lai Sau Keung(ibid.) at 447H-448A). Further, the court also found that the plaintiff’s back pain would have developed around the age of forty-five. In Chan Kam Hoi (supra.), the plaintiff there was 45 at the time of the accident, and 12 was also regarded as the appropriate multiplier before the deduction (at 958J-959A). 

164.  In this case, the Plaintiff was almost 34 on the date of trial, and with a working life up to the age of 60, I do not accept Mr. Sakhrani’s contention that the appropriate multiplier (without discount) should be 13. I think 15 should be the appropriate full multiplier.

165.  Mr. Hingorani submits that no discount should be applied because although Kumta has stated that there is a possibility that the Plaintiff would have become symptomatic without the accident, neither expert has given a period of time within which the Plaintiff would have become or was likely to have become symptomatic[39].

166.  On the other hand, Mr. Sakhrani contends that there is evidence from both Kumta and Wong that the Plaintiff would be ill-advised to work in pre-accident work because of his pre-existing condition, and Kumta further stated that there was a real possibility that spondylolisthesis would have progressed and become symptomatic even without the accident.

167.  It is now settled that a reduced multiplier is regarded as a more accurate way of giving effect to the risk of disability due to a pre-existing injury, particularly when a plaintiff’s working life was likely to be limited by that pre-existing condition (see Chan Kam Hoi, (supra.) at 959E).

168.  To consider whether a reduced multiplier is appropriate, this court needs to consider (to paraphrase the question posed by Deputy Judge Woolley in Chan Kam Ho((ibid.) at 960I) whether there is evidence that there is a risk that the pre-existing condition of his back would have led to disability in any event, and if so, what risk.

169.  The evidence (that I have accepted) shows that there is a possibility that even without the accident, the Plaintiff would become symptomatic in five or six years’ time.  However, we have no firm evidence from the experts as to at what stage of the Plaintiff’s life the symptoms would have developed to the extent of making him unable to carry on with his pre-accident job as a heavy manual labourer.

170.  Given the uncertain state of evidence, I would have to take into consideration of all available evidence in assessing whether there is any inherent risk due to the Plaintiff’s pre-existing condition as well as his work in the occupation as a heavy manual worker, and if there is such a risk, at what stage the disability would have forced the Plaintiff to change to his manual labour job to a less physically demanding job.

171.  According to the evidence of the experts as well as the literature discussed above, the progression of a person’s spondylolisthesis would slow down or cease at around the third or fourth decades of one’s life.  In the present case, the Plaintiff is around 35, and he has been found to have rather mild spondylolisthesis (which is pre-existed) of about 10%.  Accordingly, without the accident, and assuming that he would have carried on with the same type of job as a manual worker (and I think there is a high likelihood), the Plaintiff’s pre-existing condition would likely – given the nature of his job as well as his pre-existing degeneration- deteriorate progressively, and the percentage of slippage at L5/S1 would also gradually increase.  When he reaches his early fifties, I think there is an inherent risk that the back pain would develop to a stage similar to his current symptoms (that are either caused or triggered by the accident due to the pre-existing condition)   – which make him unfit to carry on with his manual labour job but only suitable for the sedentary type of work.

172.  In the circumstances, I am inclined to think that when the Plaintiff reaches the age of probably around hisearly 50s, the symptoms from the pre-existing condition of his back would, without the accident, likely develop to a stage that would lead to a disability with the effect of making him unsuitable to continue with his pre-accident work (as similar to what he has been found since the accident).  Doing the best I can, I think a global reduction of the multiplier from the full multiplier of 15 to 10 would be appropriate.

173.  I agree with Mr. Sakhrani’s contention against Mr. Hingorani’s adoption of 10% increase of pre-accident earnings for the purpose of calculating future earnings for lacking evidence in support of the submitted notional post-trial earnings.  I am therefore only inclined to adopt the same figure of $13,000 as the Plaintiff’s notional post-trial earnings, and the reduced earnings of $8,000 as Mr. Hingorani has conceded.  Hence, the monthly future loss would be $5,000.

174.  The Plaintiff’s future loss of earnings is therefore $600,000 ($5,000 x 12 x 10).

D.  LOSS OF EARNING CAPACITY

175.  In his Revised Statement of Damages, the Plaintiff claims a total sum of $152,000 under this head, which is calculated by adopting a monthly-reduced income of $8,000,and a multiplier of 19.01 years.

176.  The grounds as pleaded are that the Plaintiff would suffer a handicap in the labour market as a result of the limited range of jobs available to him, the need to take sick leave and time off to seek medical treatment.  It is further averred that as the Plaintiff is unable to speak fluent Cantonese or English, and with his limited education and work experience, it would make it more difficult to get and keep a job.

177.  An award under this head is to compensate a plaintiff for losing his competitiveness in the labour market.  The Plaintiff’s lack of competitiveness due to his language, skill or experiences should not entitle him to any compensation.

178.  The Plaintiff is already compensated for his reduced earnings as a result of the need to change (as per the medical evidence) to a more sedentary nature of work.  After the accident, he has changed employers several times.  The evidence seems to suggest that the change of employers was more due to his personal commitments that required him to go back to his home country rather than the need to take sick leave or time off.

179.  I therefore agree with Mr. Sakhrani that there is no evidence to support this head of loss, and make no award.

E.  SPECIAL DAMAGES

180.  The Plaintiff claims in the Revised Statement of Damages a total amount of $7,174 comprising $4,970 allegedly for medical expenses, and $2,204 for traveling.

181.  Mr. Sakhrani argues that the amount of $1,500 claimed for making trips to the Labour Department, Legal Aid Department, attending the medical experts, lawyers and the employers’ office should becounted as the costs of litigation (which should not be included) and that the remaining amount in connection with hospital visits should be reduced to reflect the Plaintiff’s exaggeration.  Hence, the Defendant would only agree to the sum of $2,500.

182.  The amount of medical expense of $4,970 is fully receipted.  As for the contention by Mr. Sakhrani that these expenses should be deducted on account of the Plaintiff’s exaggeration, I think it should be mentioned that I have only found the Plaintiff to have exaggerated his symptoms on occasions when he was examined by both experts, and also when giving evidence, but not on the occasions when he attended the government doctors.  Therefore, as the dates shown on the receipts are found to have been incurred prior to those two occasions, I do not agree that it is reasonable to make any deduction for exaggeration.  I allow a full recovery for this sum.

183.  Apart from a claim for $36 to CMC (which I understand it to be Case Management Conference, which should be the costs of litigation as well), I find that the traveling expenses claimed appear to be substantially tallying with the number of visits the Plaintiff had made for the medical treatments.  I find the expense for $180 for taxi on 3 occasions to have incurred reasonably given the more severe pain he would have suffered shortly after the accident.  I further find the remaining expenditure having been incurred for public transport to be reasonable.  I thus allow the sum of $668 ($180 + $183 + $305).

184.  The total amount to be awarded under this head is therefore $5,638.00.

(VII)  SUMMARY OF DAMAGES AWARDED

A.	PSLA	$150,000.00
B.	Loss of Pre-trial earnings	$260,181.30
C.	Loss of Future earnings	$600,000.00
D.	Loss of Earnings Capacity	Nil
E.	Special Damages	$5,638.00
	Total	$1,015,819.30

185.  In addition, there should be interest at 2% per annum on general damages from the date of writ to the date of judgment, thereafter at judgment rate until full payment, and half of the judgment rate on loss of pre-accident earnings and special damages from the date of accident until the date of judgment, thereafter at judgment rate until full payment.

(VII)  ORDER

186.  Upon the Plaintiff giving credit for the amount of $223,890.95 he had already received for his employment compensation, I direct judgment to be entered for the balance.

187.  As for costs, I have been pondering whether I shoulddeprive some parts of the costs of the Plaintiff’s solicitors on the ground that this assessment hearing has been grossly overrun.  In the Pre-Trial Review Notice dated 4 February 2009 filed by the Plaintiff’s solicitors, I note that the solicitors have estimated 3 days for the hearing, and further confirmed that there were no complex features or issues that would have added to the length of the hearing.

188.  The Pre-trial Review was attended by the Plaintiff’s solicitor, Mr. Burke, and the Judge set the case down for assessment for 2 days.

189.  The solicitors’ estimate has turned out to be entirely inaccurate. I believe when the solicitors in this case filed the said PTR Notice, they must have been aware the fact that experts were required to give oral testimony and be cross-examined.  It therefore puzzles me as to how an experienced solicitor like Mr. Burke could have given such a grossly inadequate trial estimate in the PTR Notice.

190.  I wish to emphasize that a solicitor, when giving time estimate for any hearing, has to take care in ensuring that the estimate he gives is realistic and workable.  Should a solicitor be found to have deliberately underestimated the length of a hearing for the purpose of getting an early hearing date or obtaining a tactical advantage, the court- when exercising its discretion on costs- may deny his costs for an amount proportionate to the period of time he has underestimated.

191.  After having reflected on this matter, I am not inclined to take such measure on this occasion.  Mr. Burke however should take note that this court would have no hesitation in exercising its discretion in order to reflect the court’s disapproval for the gross underestimation of the hearing.  I grant the usual costs order nisi that the Plaintiff do have the costs of the assessment to be taxed if not agreed, and the Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

[1]    Kumta 1, para. 9a) and c)

[2] Exhibit D1(a)

[3] Blue Bundle, p.23

[4] Blue Bundle, p.34

[5] Wong’s Report , para.23

[6] Wong’s Report para.27

[7] Exhibit D1(a)

[8] Exhibit D1(d)

[9] Exhibit P4

[10]    Blue bundle, p.33.

[11]    Exh. P.2.

[12]    Kumta 1, para. 9(a).

[13]    Kumta 3, para.9

[14]    Wong’s Report, paras 21 & 22.

[15]    Adams, Bogduk, Burton and Dolan, “The Biomechanics of Back Pain”. (2^nd ed.)(Grey Bundle pp.13-24)

[16]    William J Beutler & 5 others “The Natural History of Spondylolysis and Spondylolisthesis”, Spine Volume 28, No.10 pp.1027-1035 (Grey bundle, pp1-9).

[17]   Grey Bundle p.4.

[18]    Grey Bundle, p.7

[19]    Saraste & 3 others “ Relationship Between Radiological and Clinical Variables in Spondylolysis”, International Orthopaedics (SICOT) (1984) 8:163-174 ( Exh. D2)

[20]    Blue Bundle p.22.

[21]    Kumta 1, para. 8

[22]    Kumta 2, para. 4

[23]    See Defendants’ closing submissions, para. 138 in which the case of Lam Tam Luen v Asia Television Ltd, unrep. HCPI 1394 and 1395 of 2003, Suffiad J.

[24]   Blue Bundle p.50.

[25]    Exh. P2, picture 4.

[26]    Exh, P2, picture 11.

[27]   See Section (III) E.1 and E.2

[28]   Wong’s report, para.38.

[29]    Grey Bundle  p.16.

[30]    Wong’s Report, Para. 21 & 22

[31]    See Final Submissions of the Defendant, para. 49.

[32]    Hearing Bundle, B6.

[33]   Blue bundle p.25.

[34]   Hearing Bundle, B4.

[35]   Blue Bundle p.42.

[36]   Blue Bundle p.43.

[37] Hearing Bundle, F158

[38]    Orange Bundle, p.202

[39]    Plaintiff’s Final Submissions, para. 138