FARMAN KHAN v. LAU KAI HONG AND LAU SIU YUK t/a SHUN SUM ENGINEERING CO (a firm)

HCPI 850/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 850 OF 2008

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  On 24 November 2008, the Plaintiff commenced the present proceedings for common law damages suffered by him at an accident while he was working. The Defendant applied for legal aid but was refused. He then did not appear further, despite due service of all papers upon him.

2.  The Plaintiff obtained interlocutory judgment on 19 February 2009. He thereafter proceeded with his case for assessment of damages. As to his claim under employees’ compensation, the same was adjourned pending the determination of the present proceedings.

Background

3.  The Plaintiff was born in Pakistan on 21 March 1972 and educated there up to primary level. He came to Hong Kong in 1991 and started to work in one company called Columbia International Removal Co. for about 8 years. His duties included packing, loading and unloading goods, earning about $8,000 to $9,000 per month.

4.  Then, from 1999, he started to work as a construction worker with an average monthly salary of about $12,000.

5.  On 10 October 2006, the Defendant sent the Plaintiff to a site at Sai Kung. While picking up the garbage, he fell from a height of 5 feet above the ground to a slope underneath when a bamboo scaffold snipped and broke. He suffered injuries.

(a)  General

“…… He sustained multiple body abrasions plus contusions and visited A&E TKOH and was discharged after primary treatment.  He returned for persistent back and left hip pain and was admitted on 6 November 2006.

Physical examination on admission showed diffused tenderness over back with muscle spasm.  The range of back movement was limited by pain but there was no upper or lower limb neurology deficit.  There was also pain over both hips and knees and limited their range of motion.  Xrays showed no bone lesion in cervical or lumbar spine, pelvis, hips or knees.  The diagnosis was soft tissue contusion injury over the back and pelvis.

He was treated conservatively with medication and physiotherapy.  The pain improved but he could not tolerate the hospital meals and requested to be discharged on 8 November 2006 with a walking stick.

He was subsequently followed up in our outpatient clinic.  He was on wheelchair during his first outpatient clinic follow up on 5 December 2006.  He complained of diffused severe pain over multiple parts of body without any anatomical location.  There was also testicular pain and sex difficulty.  Physical examination could not be properly carried out as any active or passive body movement was markedly limited by pain.  He was referred to both Urology Clinic and Clinical Psychologist.  Follow up continued from December 2006 to February 2008.

Diffused severe pain over back and body trunk and limbs persisted but repeated Xray examination showed no bone lesion.  The pain was not controlled by oral analgesic.  His trunk and limb movements were markedly limited and he needed a stick and friend’s support in walking.  He could manage only less than 5 minutes.  He was referred to Pain Clinic QEH during his follow up.  MRI spine on 18 January 2008 showed prolapsed intervertebral disc L5/S1 on left side with compression on nerve root.

Mr FARMAN Khan agreed for disc excision to help relieving his left buttock and leg pain.  The operation was scheduled on 26 March 2008 but then he defaulted.

……”

(Medial Report from Department of O&T, TKOH, dated 10.4.2008)

(b)  Orthopaedics

(i)  The Plaintiff’s expert Dr. Tsoi prepared his report on 24 March 2010.  It was said that:

“I.  Diagnosis:

1.  Based on the information from the medical documents, the X Ray and MRI findings, it is very likely that Mr. Khan suffers from musculotendinous strain of neck muscle and traumatic protruded L5-S1 disc of lumbar spine.  The protruded L5-S1 disc caused compression of left side of nerve root.  They are responsible for the low back pain, left leg pain, weakness and numbness.

2.  X Ray and MRI also revealed degenerative cervical and lumbar spine.  They were pre-existing as a result of natural degeneration.

……

IV.  Plan of Treatment and Prognosis:

1.  I strongly recommend Mr. Khan to receive psychiatric treatment for the possible PTSD.  His physical disability will improve when the psychiatric disorder is under control.

2.  Not all his symptom are psychosomatic.  At least the low back pain and left leg discomfort are due to the protruded L5-S1 disc and nerve compression.  Judging from the degree of protrusion illustrated in the MRI, I shall recommend him to undergo surgical removal of the protruded disc, which is the only hope of all alleviating the pain.  Under experienced hand of spinal surgeon, the success rate, in term of achieving pain relief should be 80 to 90%.  The chance of developing major complication like damage to nerve roots should be in range of a few percent.  For your information, the cost for surgical discectomy (removal of protruded disc) is about $60,000 if performed in private hospital.  Rehabilitation up to three months after operation is required.

3.  If Mr. Khan declines surgical treatment, he will have to hear with residual low back pain and left leg discomfort (pain, numbness and mild toe weakness) for the rest of his life.

……

VI.  Working Capacity:

1.  Mr. Khan is unfit to resume his pre-injury job, regardless of whether or not he is willing to accept surgical treatment.

2.  If he prefers conservative treatment, he is only fit to perform light duty jobs.  Examples are cashier, car park attendant, petrol station attendant, and security guard etc.

3.  His working capacity will be better if he chooses surgical intervention and with promising result achieved.  Under such circumstances, he may be able to take up jobs with moderate manual demand like cleaning worker, warehouse attendant and indoor decoration worker etc.

4.  His current physical disability accounts for 15% permanent impairment of whole person, which may drop to 5-8% after successful back surgery.

……”

(ii)  The Plaintiff has changed his mind and agreed to take the advice of performing the surgical treatment in coming future.

(c)  Psychiatry

Though having been refused by the Court, the Plaintiff was subsequently allowed by the PI Master to adduce a psychiatric report.  Dr. Lo commented that:

“……

42.  Whether the injuries allegedly suffered by the Applicant were all caused by the alleged accident?

There are no concomitant factors that might have influenced the Applicant during the course of treatment, hence the alleged injuries, psychological and psychiatric, are the result of the alleged accident.

……

44.  Whether able to resume his pre-injury occupation?

Not in a construction site.  There are two reasons, the first is that he might not be able to meet the physical demand of the nature of work, the second is the psychological fear of construction site environment, which is difficult to remove or eradicate.

45.  Alternative employment.

After treatment and remission of active symptoms, he may be able to take up jobs such as a security guard (which does not demand long hours of standing or patrolling), car park attendant.

……

50.  Percentage of Permanent Impairment of the whole person?

The impairment as assessed during the present interview using the tests and guidelines given by the “Guides to the Evaluation of Permanent Impairment” 6^th Edition, 2008 published by the American Medical Association is 15% (paragraph 38 above).  However, as psychiatric treatment has only been started three months ago, further improvement is expected, especially after the compensation issue is over.  The permanent impairment would be less than 15%, and in the opinion of the undersigned, it would be in the range of 5% to 10%.

……

Opinion:

52.  The psychiatric diagnoses are Adjustment Disorder, unspecified subtype and Major Depressive Episode, moderate.

53.  The psychiatric disorders are the direct result of the injury on 10^th October 2006.

54.  Certain degree of permanent psychiatric impairment is expected and is in the region of 5 to 10%.”

(d)  Eye

“…… Previous CT brain before visit to our eye clinic was normal.

At the first visit, visual acuity of his right and left eyes were 0.4 and 0.4 respectively.  He failed the Ishihara charts of both eye by failure to read the first plate.  Ocular examination of the anterior and posterior segments of both eyes were normal.  On follow-up visit, no relative afferent papillary defect was noted.  He subsequently developed monocular diplopia which resolved spontaneously.  Refraction done on 20 Mar 2007 revealed a visual acuity of both eyes to be 0.8.  Visual test done on 23 Jan 2007 was unreliable.  Repeated visual test done on 13 Nov 2007 was unreliable on right eye but was reliable on left eye, which showed constricted visual field up to about 15 degrees from central vision.  He subsequently defaulted follow-up visits on 22 Jan 2008 and refraction appointment on 29 Jan 2008 ……”

(Report of TKOH eye clinic dated 31.3.2008)

(e)  Urology

“…… Physical examination showed symmetrical and normal tests with enlarged right epididymis.  Scrotal Ultrasonography done on 17 April 2008: Both tests are normal in size and echogenicity.  Small bilateral hydroceles noted.  Normal epididymis.  No other abnormality seen ……”

(Report of Department of Surgery, TKOH, dated 25.4.2008)

6.  Since the Defendant has not appeared and defended for the proceedings, the evidence adduced by the Plaintiff is not challenged. On balance, I agree to accept his case save that his complaints upon visual impairment and testicular pain are caused by the accident. As commented by the PI Judge herein on 29 April 2009 when he refused the Plaintiff’s application for leave to adduce expert evidence,

“  11. The Plaintiff has consulted the neurologist at Tseung Kwan O Hospital.  The brief medical note stated he had penile pain and sexual and erectile dysfunction.  Elsewhere in the papers mentioned the problem of small hydroceles.  However, there is no mention of any possible relationship of the testicle pain with the accident.

12.  The ophthalmology consultant also gave a one liner of a blurring eye, but it has to be borne in mind that the neurologist noted that previous ocular examination was normal.

13.  The neurologist noted CT scan of brain was normal and his impression was post concussion syndrome.

……

17.  It is not difficult to see that the neurologist has washed his hand and say there was nothing wrong with the brain scan and suggested the impression of post concussion syndrome.  Yet, there has been no consultation of the psychiatrist where one would have expected to be the first step if there were any such complain in a PI case.

18.  As to ophthalmology, first the complaint is contrary to earlier observation on ocular examination, and also there is no explanation of the possible link to the accident.  The same can be said about urology as to what was the possible cause of the hydroceles.

19.  In the circumstances, the Plaintiff should further consult his treatment doctors, not to the extent of getting a full expert opinion, but at least some explanation of possible link with the accident.”

7.  There has been no follow up in the above matters after the comment from the Judge, and on balance, I do not find that they were caused by the subject accident.

8.  With the above in mind, I move to the Assessment.

PSLA

9.  Counsel drew to my attention 6 cases under the claim for Pain, Suffering and Loss of Amenities. I find Gurung Durga Bahablur v Kam Tai Construction Company Limited (HCPI 304/2004) unreported, 27 November 2008, Master Levy and Li Yik Wing v Secretary for Justice for the Director of Marine (HCPI 565/2006) unreported, 5 August 2008 Suffiad J. better comparables to the present case and would award the Plaintiff a sum of $350,000 under the head.

Pre-trial Loss of Earnings

10.  Having accepted the Plaintiff’s case, including his two experts’ evidence that he cannot resume his pre-injury job, even after the surgical treatment, apart from cleaning worker, warehouse attendant and indoor decoration worker, I will allow him the sum of $341,586 on the basis that he should be able to resume work within his capability as from 17 January 2009:

$9,880 x 39 months x 1.05 – $5,000 x 12 months x 1.05

Post-trial Loss of Earnings

11.  As to post-trial earning, a sum of $737,856 is reasonable in the circumstances by adopting the following calculation:

$(9,880 – 5,000) x 12 x 12 x 1.05

Loss of Earning Capacity

12.  6 months’ earning together with MPF in the sum of $31,500 was claimed. It is a fair assessment and I will allow it accordingly.

Future Medical Expenses and Special Damages

13.  For future medical expenses and special damages, the respective sums of $107,250 and $18,750 were claimed. They were not unreasonable and are allowed in full.

Summary

14.  To conclude, the following sums are awarded to the Plaintiff.

	$
PSLA	350,000
Loss of Pre-trial Earnings	341,586
Loss of Post-trial Earnings	737,856
Loss of Earning Capacity	31,500
Future Medical Expenses	107,250
Special Damages	18,750
	1,586,942 ==========

Interest and Costs

15.  The Plaintiff is also awarded interest on PSLA at 2% per annum from the date of writ herein until the date hereof. As to loss of pre-trial earnings and special damages, interests are calculated at half of the judgment rate from the date of the accident until today.

16.  There will be an order nisi that the Defendant shall bear costs of the Assessment, including Certificate of Counsel for hearing on 15 January 2010, to be summarily assessed by me, if not agreed. The solicitors of the Plaintiff shall within 21 days fix a date of half an hour before me for the matter, if applicable.