ANSAR MOHAMMAD v. GLOBAL LEGEND TRANSPORTATION LTD

CACV 162/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 162 OF 2010

(ON APPEAL FROM HCPI 1057 OF 2007)

________________________

________________________

________________________

________________________

Hon Tang Ag. CJHC :

1.  I agree with the judgment of Cheung JA and the order he proposes.

Hon Le Pichon JA :

2.  I agree with the judgment of Cheung JA and the order he proposes.

Hon Cheung JA :

Appeal against assessment of damage

3.  The plaintiff was a general worker employed by the defendant.  On 2 June 2005 while the plaintiff was engaged in his work, he slipped and fell on his upper buttock and lower back. He claimed damages against the defendant for injuries arising from the accident.  Judgment on liability was entered against the defendant when it failed to comply with an unless order on discovery resulting in its defence being struck out.  Master Levy after a nine day hearing, assessed the amount of damages to be awarded to the plaintiff as follows :

A.	Pain, suffering and loss of amenities	$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

4.  $223,890.95 by way of employees’ compensation is to be deducted from the award because the plaintiff had already received this amount from the defendant. 

5.  The plaintiff now appeals against the award.

The plaintiff

6.  The plaintiff was 29 years of age at the time of accident and 34 at the time of the hearing before the Master.  He was a Pakistani born in his home country but came to Hong Kong at about the age of 17 or 18.  He was employed as a general worker in construction sites for about 10 years before the accident.

7.  After the injury the plaintiff was sent to the emergency ward of the hospital but was discharged on the same day.  Examination showed that there was tenderness over his lower back.  X-ray to the pelvis and lumbro-sacral region did not show any fracture. After the accident he complained of back pain.  He claimed that he suffered pain when walking, sitting, unable to lift heavy objects and pain in both knees radiating down to his ankles when he walked.  He woke up from his sleep with pain in his back and he had difficulties in climbing stairs and lying on his back when sleeping.  He was unable to squat.  He could not return to work as a labourer.  He only worked as a security guard after the accident.  He was unemployed at the time of the hearing.

8.  The Master found that the plaintiff’s evidence of his residual symptoms had been grossly exaggerated and his complaint about his symptoms was not genuine.

The issue

9.  The issue before the Master was whether the plaintiff’s fall caused injuries to his back in the form of a prolapsed disc or whether because of his pre-existing conditions at his back, specifically at the L5/S1 area, the fall caused the pre-existing conditions at L5/S1 to manifest themselves into symptoms. 

The experts

10.  Dr. Wong See Hoi, an expert for the defendant found that there were spondylolysis (i.e. a term which covers disc degeneration) and spondylolisthesis (i.e. the spine is shifted forward) at the L5/S1 area.  Dr. Wong was of the view that the accident may ‘trigger out’ the plaintiff’s back symptoms. 

11.  Professor S M Kumta, expert for the plaintiff, initially agreed with Dr. Wong that there was pre-existing spondylolisthesis but later retracted this and said the plaintiff only had spondylolysis.  Professor Kumta was of the view that the plaintiff injured his back by the accident.

Lumbar spine

12.  Without going into details, I will describe briefly the structure and injuries of the lumbar disc. This description is mainly based, with modification on the material contained in the written submission of Mr. Hingorani’s, counsel for the plaintiff :

(1) A lumbar disc comprises of an inner nucleus pulposus made of a hydrated gel-like substance, and an outer annulus fibrosus composed of tough fibres.

(2) In a normal disc, the nucleus is hydrated, giving the disc a distended appearance and appearing white on the MRI.

(3) Over time the nucleus becomes dehydrated (desiccation) and loses height.  The disc may also bulge.

(4) Under certain conditions, one of which is trauma, the annular ring may tear, allowing nuclear material to escape into the surrounding tissues.

(5) When this happens, fragments of the outer annulus fibroses together with the inner gelatinous material may press on the ligaments and nerves which are running close to the lumbar disc causing pain to the patient.

(6) The chemicals within the nuclear material may also cause irritation of such tissues, including pain, without any impingement of the spinal nerves exiting at the level of that disc.

(7) The sensation of that pain is carried through nerves that innervate the annulus and areas surrounding it.

(8) The pain so produced can be diffuse and radiate.

(9) Various terms are used to describe the extent to which a disc departs from its normal appearance. These are bulge, protrusion, prolapse, herniation, extrusion and sequestration.

X-ray examination

13.  The Master summarised the result of the X-ray examination of the plaintiff as follows :

‘ 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 reveals a loss of normal lordosis (likely due to muscle spasm), and right L5 spondylolysis. [lordosis means inward curvature]

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 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 (Dr) 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.” ’

MRI examination

L5/S1

14.  Two MRI scans were conducted on the plaintiff’s lumbar spine.  The Master summarised the positive finding of each examination as follows :

24 March 2006 : a 3mm disc protrusion at L5/S1

18 May 2006 : L5/S1 desiccation, decrease in disc height and posterior protrusion

Other areas

15.  The MRI films also revealed problems in other parts of the plaintiff’s spine and back.  However, they were relatively minor problems.

The finding by the Master

1) The Master found that as the plaintiff fell on his buttock, the impact would have likely been at the L5/S1 area and less likely to be in the areas above L5.

2) There was degeneration at L5/S1 by reason of spondylolysis and spondylolisthesis in that area.  The Master held that

‘ 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 materials contained inside the disc. In the circumstances, I accept Wong’s opinion that there are spondylolysis and spondylolisthesis at L5/Sl. 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.’

3) Since disc desiccation needs a long time to develop rather than as a result of an acute process, the desiccation as shown on the radiograph would have likely occurred for quite sometime and it would least be likely due to a single one-off trauma.

4) In relation to the injury suffered by the plaintiff at L5/S1, the Master considered that there were two likely 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 prolapse to the already desiccated L5/S1 disc.

5) The Master held that given the nature of the plaintiff’s pre-accident occupation (having been a manual labourer for 10 years), he could be said to have engaged in activities that carried a higher risk of disc prolapse.  The Master also referred to factors such as age (age-related degeneration), environmental factor such as heavy manual work or high intensity activities (non age-related degeneration) that could lead to disc prolapse. 

6) She concluded 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. 

7) The Master also found that the pre-existing conditions of the plaintiff were asymptomatic.  She arrived at this conclusion by considering the following :

‘ 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.’

8) The Master went on to find that even without the accident, the plaintiff’s spine would have been in painful progression as time passed by reason of the degenerative condition.  She stated that :

‘ 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.’

16.  Because of the finding that the plaintiff’s problems were partly caused by the accident of which the defendant was responsible and partly caused by the plaintiff’s pre-existing conditions of which the plaintiff himself was responsible, the Master did not give the plaintiff the full award when she assessed the damages.

The focus of the appeal

17.  The appeal is focused on three matters.  The first is in respect of the Master’s finding on the cause of the injury.  The second is in respect of the finding on the time the symptoms will manifest themselves even without the injury.  The third is in respect of damages. 

Finding of fact

18.  I will consider the first two challenges together.

19.  In respect of the first, the plaintiff’s case is that the Master ought to have held that the plaintiff had not suffered from any significant degeneration or prolapse before the accident, but that the fall resulted in the prolapse at L5/S1 which subsequently underwent degeneration.

20.  The plaintiff challenged the Master’s acceptance of Dr. Wong’s evidence and rejection of Professor Kumta’s evidence.  It was said that the Master had wrongly considered that Dr. Wong’s opinion was consistent and firm.  Dr. Wong’s view in his report that the mode of injury was only compatible with a simple back contusion was contradicted when he admitted in evidence that the plaintiff might have suffered from more than a simple contusion.  Dr. Wong’s view on the desiccation on L5/S1 and other parts was contradictory.  His opinion that the accident may at most have triggered out his back complaints was unsupportable.  Dr. Wong’s contribution of the plaintiff’s complaints to multi-level degeneration was unsupportable and Dr. Wong was wholly inconsistent with his reported findings as to protrusion.  Mr. Hingorani set out details of the inconsistency of Dr. Wong’s evidence in his written submission. 

21.  It was further submitted that the Master had misunderstood the evidence of Professor Kumta.  The Master erred in holding that Professor Kumta had confirmed that the plaintiff had disc degeneration at various levels of the spine.  The professor in fact stated that there was no degeneration at any level other than L5/S1 but did not opine that the degeneration at L5/S1 existed before the accident.  Further Professor Kumta was of the opinion that given that the plaintiff had an injury and that he had no prior history and no prior symptoms, it was likely that the protrusion was the result of the accident.  Again Mr. Hingorani set out the details of his case in his written submission.

22.  In respect of the second challenge i.e. the symptoms manifesting themselves, Mr. Hingorani submitted that since it was the evidence of both experts that structural changes are at work to stabilize a spondylolistheis, which was only mild at 10%, such that its progression slows down or ceases after the 3^rd decade, and structural changes also occur to stabilize the spine where there is degeneration, which, according to Professor Kumta, the Plaintiff did not have, and which, according to Dr. Wong was essentially so insignificant as not to bother to mention, the Master ought to have found on the evidence that, but for the accident, the plaintiff was unlikely to have become symptomatic and thereby awarded damages in full.

My view

1) This is in essence a challenge on the finding of fact by the Master who had heard the case for nine days. The plaintiff must show that the Master had indeed erred under the high threshold that applies to challenges to finding of fact as stated by the Court of Final Appeal in Ting Kwok Keung v. Tam Dick Yuen [2002] 1 HKC 601. This Court (Ma CJHC (as he then was), Rogers VP and Le Pichon JA) in Au Yeung Miu Sim v. Tsang Kwong Wai & Another [2004] 2 HKLRD 187 specifically held that challenges to expert evidence is to be treated on the same basis as an appeal on findings of fact.

2) As stated by this Court in cases such as Lee Kin Kai v. Ocean Tramping Co. Ltd (t/a Ocean Tramping Workshop [1991] 2 HKLR 232 and Li Sau Keung v Maxcredit Engineering Ltd & Anor [2004] 1 HKC 434 that in ascertaining the cause of an injury the Court is to make the finding on a balance of probability which is to be contrasted with the medical etiology of finding the clinical cause beyond reasonable or any doubt.

3) Taking an overview of the condition of the plaintiff in the light of the X-ray and MRI examinations and the evidence of the experts, the Master was clearly entitled to find that the plaintiff had pre-existing conditions on his back, some more serious than others.  The more serious one was in respect of the spondylolysis and spondylolisthesis at L5/S1.

4) The crucial factor in this case is the vulnerability of the plaintiff’s back because of the pre-existing conditions.  It is really of no significance whether the pre-existing conditions should be described as degeneration or not, although as a matter of commonsense and one finds this in judgments that spondylolysis and the wear and tear of one’s back are frequently described as degeneration.

5) The Master was entitled, on a balance of probability, to find that, because of the vulnerability of the plaintiff’s back, the plaintiff’s fall on his buttock caused the prolapse or worsened the prolapse.

6) The Master clearly was not impressed by Professor Kumta’s evidence and she had explained why.  At the same time she did not wholly reject his view or wholly accept Dr. Wong’s evidence which she had explained in her judgment.  In respect of her finding on the cause of the injury, the Master stated that

‘ 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.’

7) After a nine day hearing in which the experts were extensively examined and cross-examined, the Master must be entitled to give the appropriate weight to their respective evidence.  I see no mistakes which may vitiate this finding.

8) Likewise the Master’s finding on the symptoms of the pre-existing conditions manifesting themselves is clearly something that she is entitled to find on the evidence.

9) In my view the plaintiff has not been able to cross the high threshold in upsetting the finding of facts by the Master specifically in respect of the expert evidence.

Loss of future earnings

23.  The issue is on the amount of the multiplicand.  The Master used $13,000 as the plaintiff’s notional post-trial earnings less the figure accepted by the plaintiff of $8,000 and arrived at $5,000.  The $13,000 was the plaintiff’s monthly salary at the three months period before the accident.  This was made up of the basic salary of $10,000 and overtime of $3,000.  The plaintiff’s evidence was that subsequent to the accident he was informed by a colleague working for the defendant that the basic salary had been increased to $12,000 plus overtime.  The Master disagreed with Mr. Hingorani’s adoption of 10% increase of pre-accident earnings for the purpose of calculating the future loss.  She held that there was no evidence to support the increase.

24.  The fact is that the defendant was clearly in the best position to know whether there had been an increase in the salary of its employees and by how much.  Yet it had chosen not to produce any evidence on that.  Its defence was struck out and judgment on liability was entered against it because it had failed to comply with an unless order which was based on a consent order to give discovery on earnings.  In the circumstances the plaintiff’s evidence on the increase of salary ought to have been accepted by the Master as the best evidence on the increase.  Accordingly the notional post-trial monthly earnings should be in the figure of $13,000 X 10% or $14,300.  The monthly loss should be $6,300 ($14,300 - $8,000).  The total loss is $756,000 ($6,300 X 12 X 10).

Damages

Loss of earning capacity

25.  The Master disallowed the claim for loss of earning capacity.  She stated that the plaintiff was already compensated for his reduced earnings as a result of the need to change to a more sedentary nature of work.  As to his change of employment after the accident, the Master said that the evidence seemed 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.

26.  I take a different view of the matter.  Looking at the matter objectively, the vulnerability of the plaintiff’s back by reason of the disc prolapse is likely to cause him to suffer a handicap in the labour market.  His choice of employment will be limited.  The risk is a substantial and real one as distinct from a fanciful and speculative one.

27.  An award should be given under this head.  As to the amount of the award, the cases show that there are two approaches.  The first is a lump sum approach with awards ranging from $5,000 to $250,000.  The second is based in terms of the plaintiff’s monthly or annual earnings : usually up to a year’s salary.  In this case an award of $30,000 is appropriate bearing in mind the presence of the pre-existing conditions at the time of the accident.

Conclusion

28.  The appeal is accordingly allowed to the extent that the loss of future earnings is increased to $756,000 and $30,000 is awarded for loss of earning capacity.

Costs

29.  As the plaintiff succeeds in his appeal, I will make a provisional order that he is to have the costs of appeal.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.