LI SAU KEUNG v. MAXCREDIT ENGINEERING LTD & ANOTHER

CACV 16/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 16 OF 2003

(ON APPEAL FROM HCPI NO. 530 OF 2001)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an appeal from the judgment of Deputy High Court Judge Carlson dated 21 October 2002 whereby the defendants were ordered to pay the plaintiff the net sum of $718,000 together with interest in respect of a claim for personal injuries.

Background

2. The plaintiff was a concrete worker on building sites, responsible for conveying mixed concrete up the building under construction to be poured into formwork out of which the building takes its shape. He was employed by the 1st defendant to do this work at Gateway II, Harbour City Redevelopment in Canton Road. The 2nd defendant was the main contractor at the site.

3. Mixed concrete was conveyed up a building by means of a series of steel pipes connected together by clips and rubber washers and fixed to the wall of the building by a series of brackets. The pipes were 6 inches in diameter and 3 metres long, each weighing 180 pounds. At the end of each day, the piping had to be cleared of remnants of concrete that from time to time adhered to the internal sides of the pipe. This was done by using a high pressure blower. If the concrete had set and could not be removed by using a blower, the particular section of pipe or pipes that had become blocked would have to be replaced with new sections.

4. On 26 June 1998, the plaintiff reported for work at 8 am and was instructed by a 2nd defendant's supervisor that the concrete casting work on the top floor of the building had to be completed that day. On the previous day, the plaintiff and his colleagues had to work until midnight to complete the casting process but when they started to clear the pipes by using the blower, it was discovered that much of the concrete had set and could not be blown out.

5. The plaintiff's evidence was that on the day in question, he and his colleagues had spent the entire day trying to clear the pipes of blockages. After working continuously (apart from meal breaks) for 19 hours, some blockages still remained. The affected pipes were between the 6/F and the 8/F and consisted of three sections. The uppermost section had to be removed first and the plaintiff set about doing that. He climbed out to the external wall from the edge of the 7/F. His evidence as to how the accident happened was summarised by the judge as follows:

"8. ... According to him, it had been raining heavily for the whole of the day and into the night. At the time that he ventured out onto the pipe work, the rain continued to fall heavily. He had to work alone. None of his colleagues was available at that time nor were there any supervisors. It was also dark. He had no scaffolding from which he could operate and attach his safety harness to. Nor was there a working platform. What he did, therefore, was to climb out onto the pipe work and cling-on using his arms and legs. He had with him a torch and a wooden baton. He wore his safety helmet and some rubber safety shoes which gave better grip. He was able to climb up and remove the pipe clip that connected two sections of pipe which were above him using his hands. He had expected that once he removed the clip, the pipe above him would remain in place since concrete had set and that would have caused the two sections of the pipe to "glue" together. He had expected to loosen the junction by hitting at it with the wooden baton. However, unexpectedly, once he loosened the pipe clip, that section of the pipe above him came off and struck him in the small of his back. It caused him to lose his grip on the section of pipe that he was holding and he fell down to the safety platform on the 6/F. He estimates that he fell about 15 feet. The impact of the fall made him dizzy. He was unable to move and he felt pain all over his body. After a while, he was found by fellow workmen who summoned an ambulance and he was removed from there to Queen Elizabeth Hospital. ..."

6. The plaintiff was seen at the Accident and Emergency Department of Queen Elizabeth Hospital in the earlier hours of 27 June. On admission, examination showed tenderness over the upper thoracic and lower lumbar spine. There was some bruising and swelling over the corresponding area of his back. He did not have neck pain and the range of movement of the neck was full. X-rays taken did not reveal any fracture but an irregularity was found at L4 described by Dr Man who had compiled a report on 9 October 2000 from medical notes prepared by doctors who had attended the plaintiff on various occasions starting with the date of the accident as "a suspicious fracture" of the spinous process of L4. The plaintiff was hospitalised for about 5 days receiving conservative treatment.

7. About a week after the accident, on 3 July, the plaintiff was interviewed by a Mr So, an employee of the 2nd defendant who prepared an industrial accident report. The material part of the report read:

"At the time when I was dismantling the pipe on 6th Floor, when loosening the screw between the pipes, the pipe suddenly fell down and pressed on my waist and my back. I shouted to notify the colleagues and the colleagues further notified the foreman of Chevalier, Mr. Wong Lap Chi. After Mr. Wong reported to the police, an ambulance arrived at the scene and sent me to the Queen Elizabeth Hospital."

8. After discharge, the plaintiff received out-patient physiotherapy. When subsequently reassessed, he was not able to resume work because of back pain. He subsequently complained of neck pain and muscle spasms of the lower back, which symptoms were absent when he was originally taken to hospital. Further X-rays were taken 9 months later which showed "old avulsion fracture of antero-superior aspect of the body of L4". Three further months of occupational therapy had no positive results. The plaintiff's ability to work has been limited by his back pain and discomfort of the lower limbs.

9. The plaintiff was the only witness who gave direct evidence of what he was doing when the accident happened. The defendants did not call any witnesses of their own other than medical experts. They challenged the plaintiff's account. They took issue with the plaintiff's evidence that it had been raining that particular day. The defendants also relied on the accident report prepared by Mr So soon after the event which had made no mention of any fall.

10. There was also a serious disagreement by the medical experts as to the presence of what the plaintiff's experts have described as an avulsion fracture of the antero-superior aspect of the body of L4. According to the plaintiff's experts, this was caused by the blow by the pipe and the effects of the fall, bringing about the painful symptoms which are likely to be more or less permanent and which certainly prevent the plaintiff from resuming his pre-accident employment. The defendants' experts took a different view: this condition was totally unrelated to the accident and was therefore to be left out of account in any assessment of the effects of the accident. It followed that the judge's view of the medical evidence would directly affect the amount of damages recoverable.

The judge's findings

11. The judge expressed his findings thus:

"23. The plaintiff has persuaded me that he climbed out onto the piping in order to reach up, unclip and detach the top section of pipe between the 7/F and 8/F in the way that he has described when the top pipe behaved unpredictably, detached itself, fell and struck him in the small of the back. I reject the other part of his evidence that he then lost his grip and fell some 15 feet."

12. He gave three reasons for his findings. First, that there was no persuasive medical evidence to suggest that he had sustained such a fall. Second, in coming to that view, account had been taken of the fact that the accident report which the plaintiff gave to Mr So had made no mention of a fall. Thirdly, a matter which went to credit was the fact he disbelieved the plaintiff who had said that he had carried out the work in driving rain. The judge then made a factual finding that the plaintiff was able to hold on and lower himself to the ground where he was found, no doubt in pain, from where he was taken to hospital. He concluded on the medical evidence that the plaintiff had sustained an unpleasant blow to the centre of his back which resulted in contusions and bruising of the soft tissue, requiring him to take some time off work. He held that the other more significant painful symptoms were not attributable to the accident.

13. Based on those findings, had negligence been made out? The judge had this to say:

"24. The answer must, resoundingly, be in the affirmative. This is a very bad case of negligence. Any employer who in effect obliges a workman to work for 19 1/2 hours non-stop (save for meal breaks) and then oblige him to clamber up an exposed pipe in darkness without any safety equipment must be guilty of negligence of the worst possible kind. ..."

The judge dismissed the defendants' plea of contributory negligence, considering it little short of offensive in the circumstances of the case.

The award

14. Given the judge's conclusion on the medical evidence, when it came to the assessment of damages, pain attributable to the condition at L4 had to be left out of account because causation had not been established. A total sum of $718,000 was awarded after giving credit for employee's compensation award of $568,000. The elements of the award are set out below.

Pain, suffering and loss of amenities ("PSLA")

15. So far as damages for PSLA were concerned, the judge made an award of $300,000 on the footing that the direct results of the accident should have comfortably resolved after a period of two years, and that the plaintiff's condition at trial which was dominated by the injury at L4 must be ignored.

Pre-trial loss of earnings

16. This was assessed on the basis that the plaintiff would have been in a position to return to work after a period of two years. The judge made a finding that his earnings prior to the accident averaged $40,000 per month. Accordingly he awarded the plaintiff $960,000.

Future loss of earnings

17. No award was made under this head since, in the judge's view, the plaintiff's difficulties at the date of the trial all stemmed from degenerative changes and other problems related to his condition at L4 which the judge found had not been aggravated by the effects of the accident. The claim for loss of earning capacity was rejected for the same reasons.

Other special damages

18. A sum of $26,000 was awarded under this head.

This appeal

19. The plaintiff's appeal is not only as to quantum but is also against the judge's finding that the plaintiff did not sustain a fall at the time of the accident.

The fall

20. Mr Chan SC who appeared for the plaintiff sought to challenge the judge's rejection of the plaintiff's evidence that he had fallen some 12 to 15 feet after being struck by the pipe he was dismantling. Mr Chan SC submitted that it had to be borne in mind that the plaintiff had given direct factual evidence of the fall which was not inherently improbable and that evidence had not been contradicted by any factual evidence. The plaintiff's claim therefore fell to be decided on a balance of probabilities only and, it was submitted, he had discharged that burden.

21. As noted in paragraph 12 above, the judge had given three reasons for the rejection of the plaintiff's evidence that he had sustained a fall. It was Mr Chan's submission that, when analysed, they had little substance.

(i) medical evidence

22. The judge considered that there was no persuasive medical evidence to suggest that the plaintiff had sustained such a fall. He noted the absence of injuries to the plaintiff's heels and buttocks "which one would have expected to see" had the plaintiff sustained such a fall. However, that was not the effect of the medical evidence. In the context of medical evidence of injuries to the heels and buttocks, the premise of the questions giving rise to the answers is critical. Having reviewed the relevant parts of the transcript, it would appear that the questions put to the medical witnesses, eliciting answers which referred to injuries to heels and buttocks were premised either (1) on the plaintiff landing on his heels first and then the buttocks or (2) on the heels or buttocks (as the case may be) taking the brunt of the impact. See, for example, transcript 23.9.2002 p. 39 L-S, 24.9.2002 p. 16 D-F; p. 16 T- 17 N; p. 44 A-E. It was in that context that injuries to those parts of the anatomy were common.

23. This exchange in the cross-examination of the plaintiff's expert, Dr Au Ting Wah highlights the key factor:

"	Q.	In those circumstances of landing on a hard surface, a fracture of the heels is quite common?
	COURT:	'A fracture of the ...'?
	MR LIM:	'... of the heels ...'
	COURT:	The heel, yes. Is that an experience?
	A.	Yes. It depends on how you land.
	Q.	Yes, of course it all depends, we accept that." (emphasis added)

(Tr. 23.9.2002 p. 39 L-P)

This did not appear to have been a matter considered by the judge. In fact, Dr Au did ask the plaintiff how he had landed on the ground when he had the fall. Dr Au's account of the plaintiff's answer was this:

"... but I tell you, unfortunately, most patients, you know, after falling from a height, they can't really tell you exactly how or which part of their body land on the floor, on the ground. This is something which I think is very true. Okay? After falling from that height you don't know where to go and then most of those patients, after falling from that height, they would be a bit semi-conscience (sic) at that juncture. I asked the patient and he couldn't exactly tell which part of the body land (sic) on the floor. ..." (emphasis added)

(Tr. 23.9.2002 p. 38 N-Q)

When there was simply no evidence as to how the plaintiff landed or which part of his body came into contact with the safety scaffolding first, the absence of injuries to the plaintiff's heels and buttocks has little, if any, significance.

24. Dr Au also had this to say:

"One would have to understand, falling from a height is one thing. But the way the patient landed on the floor, there are so many variables, so many factors. Okay? And then, also, it all depends on the reaction of the body, whether the patient can be good enough to try to even out some of the stress by bending the body, whatever. I mean, there are a lot of factors. Therefore, I say Mr Li is lucky. I've seen cases happen like this, minor fracture or compression or avulsion fracture, as you mentioned. So there are many variables for that to happen. I won't say that having fallen from a height of that 12, 15 feet, and for this injury to happen I would say it's compatible. Okay? If I've seen patients falling from a height for a columbar fracture with neurological deficit, it's also compatible, because there are many variables for the patient at the time of the injury or the time of the impact to change."

(Tr. 23.9.2002 p. 41 G-M)

Even the defendants' expert Dr. Tsoi Chi Wah considered that the injuries sustained by the plaintiff were consistent with a fall from a height of some 12 to 15 feet as appears from the following passage:

"	Q.	If the plaintiff did fall from a height of some 12-15 feet onto a hard surface, are the injuries you see on him, assuming that the L4 was fractured - for the moment, assuming that the fracture is not a limbus vertebra, would you say the injuries were consistent with such a fall or inconsistent?
	A.	It is possible if the fall is from 12-15 feet high and then fall down. It could give rise to a compression fracture of L4.
	Q.	It could?
	A.	It could. It is unusual. The most common site I have just said is L1/L2 but I cannot rule out this possibility."

(Tr. 24.9.2002 p. 16 J-N)

Significantly, it would not appear that there was any medical evidence to the effect that the plaintiff's injuries were incompatible with a fall from a height of 12 to 15 feet.

25. In these circumstances one is driven to conclude that the judge had misapprehended the medical evidence.

26. In addition, there are other relevant considerations which the judge appeared to have overlooked. Quite apart from the absence of evidence as to which part of the plaintiff's body first came into contact with the ground, it would not appear that the judge took into consideration the type of surface on which the plaintiff had landed. It was not a concrete platform as had been put to him in cross-examination. Rather, the plaintiff's evidence was that it was "a metal slanting platform which was a safety scaffolding sticking out to the roadway." This was at a small angle of about 30 degrees slanting inwards, the surface consisting of metal plates and resting on scaffolding. There is all the difference in the world between landing on a concrete surface and safety scaffolding lined with smooth metal plates.

(ii) The accident report

27. This report, prepared by a Mr So about a week after the accident and signed by the plaintiff, had made no mention of a fall. The judge made the following observations:

"23. ... This fall would have been by far and away the most significant feature of this accident and I simply do not believe that had a report been made by the plaintiff that he had fallen that the safety officer would have deliberately omitted to mention it. In my judgment, no reference was made by the plaintiff at the time simply because he had not had a fall."

28. But the plaintiff's evidence was unequivocal: he maintained that he had told So about the fall. Not only was it not put to the plaintiff that he never told So about it, So, who was an employee of the 2nd defendant, was not called to give evidence. Mr Chan SC rightly submitted that this was a matter that may properly be taken into account. In Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149, Aldous LJ cited the following passage from the judgment of Newton and Norris JJ in O'Donnell v Reichard [1975] VR 916 at 929:

"It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference then they may properly take it into account against the party in question for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; ..."

29. It is further to be noted that So was not a "safety officer" as the judge had thought; rather, he was an employee of the 2nd defendant. Whilst a safety officer would have been trained in the task of recording industrial accidents, the same cannot be said of an employee of the main contractor. Had So given evidence, this aspect could have been further explored. As he did not, the plaintiff was deprived of the opportunity. In the circumstances, an adverse inference should have been drawn against the defendants.

30. Further, there was nothing inherently improbable about the plaintiff's explanation concerning the omission of a fall from the report. He explained that he could not read or understand some of the characters in the report due to his limited education (which was only up to primary level in the PRC during the cultural revolution). He had not noticed that there had been no mention of the fall in the report when he came to sign the declaration.

31. Then there was the medical report prepared by Dr Man on 9 October 2000 which had mentioned a fall. The report read:

"Mr. Li was admitted to our hospital on 27th June 1998 because of back injury. He sustained the injury while at work at that time, his back was hit by a metal bar. He fell from 7th floor to 6th floor of a building. No other injury was detected. Examination on admission revealed ..." (emphasis added)

The judge was not prepared to find that just because the fall had been mentioned in the second sentence that it was indicative of the fact that that had come from the initial admission notes in the absence of the medical notes upon which this report was based. He considered it "equally consistent with the plaintiff having indicated that he had fallen some time later in his treatment in order to increase the worth of his claim." (emphasis added) I do not agree. There was simply no evidence to warrant the inference that the fall had been mentioned only in a later visit. It was also inherently improbable from the way the report was written. What immediately followed the mention of the fall in the third (and not, as the judge thought, the second) sentence in the report is of significance. On a fair reading, it comes to this: the examination that took place had been made on admission to hospital and that related to injury at the time of admission, the injury so detected being that which preceded the sentence "No other injury was detected." For my part, I have considerable difficulty with the judge's analysis or interpretation of Dr Man's report.

32. For the reasons stated, the importance which the judge attached to the absence of the mention of a fall in the accident report was unwarranted.

(iii) Rain

33. This was an aspect relating to the plaintiff's credibility. The plaintiff had given evidence that it had been raining hard before and at the time of the accident. The defendants had produced a letter from the Hong Kong Observatory which set out meteorological data on 27 June 1998. They were criticised for not calling any evidence to interpret the table set out in the letter. Mr Chan submitted that it appeared to be data about Hong Kong generally. The point sought to be made was that the judge was wrong to rely on the data set out in the letter because it may not have related to conditions prevailing at Gateway II where the accident happened. But the table on its face is stated to be at "an extract of ... rainfall and weather condition observed at the Hong Kong Observatory" at the time and date stated. The Hong Kong Observatory is of course in Tsimshatsui which is where Gateway II is situated. The table showed that in the first three hours no rainfall had been recorded whilst in the fourth hour, there had been a trace of rainfall. That being so, in my view, the judge was entitled to conclude that, contrary to the plaintiff's evidence it had not been raining.

Conclusion

34. Two of the three reasons given for rejecting the fall had no substance. This must seriously undermine the judge's conclusion. More importantly, it would appear to be common ground that the plaintiff was found on the safety scaffolding. Surprisingly, no statement had been taken from the person who came to the plaintiff's assistance at the scene of the accident as one would have expected. Such a person who would have been an employee of either of the defendants would have been in a position to give a description of the plaintiff's position and condition when he was found. Be that as it may, given the judge's finding that the plaintiff was seeking to unclip the top section of pipe between the 7/F and the 8/F and his rejection of the plaintiff's evidence of a fall of some 12 to 15 feet, there still had to be an explanation of how the plaintiff ended up on the safety scaffolding which was some distance away. The judge made the finding that the plaintiff was able to hold on and lower himself to the ground, i.e. the safety scaffolding on the 6/F.

35. But that finding was not based on any evidence that was adduced at trial. Rather, it would appear to have been pure speculation. Moreover, on the assumption that the plaintiff was able to hold on, one asks rhetorically, why would he have lowered himself to the ground at 6/F level when he could have retraced his steps to the opening at the 7/F from whence he had climbed out to the external wall? The most natural explanation was that the plaintiff lost his grip and fell. Such a fall would be consistent with having been unexpectedly hit in the back when clinging on to the pipe.

36. The only factual evidence before the judge was the plaintiff's own evidence. There was no other factual evidence to contradict the plaintiff's account. In the circumstances of the case, not only had there to be cogent reasons for rejecting the plaintiff's evidence, there had to be other evidence which would have explained how the plaintiff ended up where he was found. Absent the existence of such evidence, coupled with his misapprehension of the medical evidence discussed above and the mistaken importance attached to the accident report, it was not open to the judge to have rejected the evidence about the fall particularly as there was the corroboration of the fall in Dr Man's report. In my view, the judge's rejection of the plaintiff's evidence of the fall is unsustainable. There was ample evidence to find and, in the circumstances, the judge ought to have found that the plaintiff fell some 12 to 15 feet after being struck by the pipe.

The cross appeal

37. It would be convenient at this stage to record that the cross appeal on liability was not pursued in the course of the hearing.

Quantum

38. If the plaintiff did sustain a fall when the accident happened, that would affect the assessment of damages. His present disabilities are attributable to the fall either because it caused the fracture at L4 or triggered a pre-existing condition being the degeneration of his spine which until the accident had been asymptomatic. In this regard, I fully agree with the judgment of Cheung JA, a draft of which I have had the advantage of reading.

Pre-existing condition and the appropriate reduction

39. In his supplementary medical report dated 6 April 2002, Dr Tsoi opined that the plaintiff's persistent back pain over the back was a combined effect of "pre-existing degenerative spine" and soft tissue contusion injury of the lower back. Mr Chan SC does not dispute this.

40. In a further supplementary medical report dated 12 April 2002, Dr Tsoi opined that:

"	1.	[But] for the accident, it is possible that the pre-existing degenerative spine might have remained in asymptomatic stage and Mr. Li would have been able to continue to work for a few more years.
	2.	However, judging from the degree of degeneration and his pre-injury job nature, it is more likely than not that had he not met both the accidents, back pain would have developed around the age of forty-five. Once pain develops, Mr. Li would not be able to continue heavy manual work."

41. Medical evidence on this issue was controversial. Dr Au did not share Dr Tsoi's view which he considered to be an exercise in crystal ball gazing. He considered the prognosis too uncertain for any firm view to be formed as to the likely number of working years the plaintiff could reasonably expect to have. He was not able to reach the conclusion that Dr Tsoi had reached in the absence of scientific data or study in support. Dr Tsoi was unable to produce such supporting data, relying only on his clinical judgment. The judge made no finding on the conflicting medical evidence on this point, no doubt because that was an unnecessary exercise given his rejection of the claim to future loss of earnings.

42. Initially Mr Chan SC had invited this court to follow the approach of Deputy Judge B Yu SC in Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors [2002] 4 HKC 76 at 82I that the tortfeasor must take the victim as he finds him. After considering Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 to which his attention had been drawn, Mr Chan SC agreed that the approach set out in Chan Kam Hoi should be adopted. As explained in that case, the conventional approach is to make a deduction from the multiplier to take into account the risks associated with the plaintiff's pre-existing condition. Mr Ozorio SC who appeared for the defendants submitted that an additional reduction is appropriate, relying on Mortimer VP's observations in Chan Kam Hoi (at 966E), that for a man doing heavy work on construction sites, a reduction of the multiplier is appropriate to account for inherent risks apart from those associated with any pre-existing condition.

43. On the facts of this case, I agree that the reduction must not only account for the inherent risks involved in doing heavy construction work on construction sites but also reflect the risks associated with the plaintiff's pre-existing condition of degeneration of the spine.

Multiplier

44. As to the appropriate multiplier, Mr Chan SC submitted that as the plaintiff was 44 at the date of trial, the starting point should be a multiplier of 12. There was evidence from the plaintiff that generally concrete workers can work to the age of over 60. In Chan Kam Hoi, the appropriate multiplier was held to be 12 years for a man aged 45 for future loss of earnings to the age of 65. I agree that 12 years would be about right before reduction. Taking a global view of the reductions required as stated in paragraph 43 above, I consider a multiplier of 6 to be appropriate.

Agreed matters

45. It is agreed that the amounts payable in respect of pre-trial loss of earnings as well as loss of future earnings should be net of tax. The parties have been able to agree the tax computations both for the pre-trial loss of earnings as well as for loss of future earnings. Further, the plaintiff accepts that he is able to take up jobs like a watchman which would attract earnings of $6,500 a month. On the judge's findings, he would have been able to take up such employment 2 years after the accident. The loss of earnings falls to be calculated accordingly. It should be noted that the plaintiff was granted sick leave until 17 December 1999. Hence the judge's assessment of 2 years is appropriate.

Miscellaneous

46. There are two further matters that must be mentioned.

47. A video surveillance tape recording made between 12 and 22 November 2001 showed that on two of the days, the plaintiff was seen entering a building site and not to emerge again until after the end of the working day. The plaintiff volunteered the fact he had attended the site for the whole of the previous week to assist a friend who was involved with concrete casting work. The judge did not accept that explanation and reached the conclusion that the plaintiff had been working on the occasions that he was seen i.e. on the two days as recorded in the tape. He made no finding as to when he started work since it had no effect on the amount of damages to which, in his view, were recoverable by the plaintiff. Mr Chan SC indicated that the income so earned should be deducted. In the absence of any finding as to his earnings on those occasions, adopting a rough and ready approach, they should be assessed on the basis of the plaintiff's average monthly earnings of $40,000 or say $1,500 per day.

48. The disability of the plaintiff clearly creates a handicap for him in the labour market. Accordingly damages for loss of earning capacity should be awarded.

PSLA

49. The judge made the award of $300,000 on the footing that the injury at L4 which accounted for the plaintiff's persistent back pain had to be left out of account. In view of the reversal of the judge's finding as to the fall and the consequential resolution of the causation issue, the amount must be revised upwards. In all the circumstances, I consider that a sum of $400,000 in respect of PSLA is appropriate.

Computation of damages

(1)	Pre-trial loss of earnings
	Annual income :	$40,000 x 12 = $480,000
	Annual tax thereon:	$13,980
	Net monthly income:	($480,000 - $13,980) ÷ 12 = $38,835
	Period of pre-trial loss of earnings: 51 months
	Total: 51 x $38,835 = $1,980,585
	Less earnings of $6,500 per month as from July 2000:
	$6,500 x 27 = $175,500
	Net loss: $1,980,585 - $175,500 = $1,805,085
	Less 2 days' earnings at $1,500 per day:
	$1,805,085 - $3,000 = $1,802,085

(2)	Future loss of earnings
	Annual income:	$480,000
	Annual tax payable:	$63,600
	Multiplicand:	($40,000 - $6,500) x 12 - $63,600 = $338,400
	Multiplier:	6
	Loss:	6 x $338,400 = $2,030,400

(3)	Loss of earning capacity
	9 x $6,500 = $58,500

(4)	Future MPF loss
	$1,000 x 12 x 6 = $72,000

(5)	Other special damages
	(as found by the judge)	$26,000

(6)	PSLA
	$400,000

(7)	Interest on PSLA
	at 2% on $400,000 from 26.7.2001

(8)	Interest on special damages after deduction of ECC award of $568,000 at half the judgment rate from the date of the accident.

Order

50. I would allow the appeal and dismiss the cross appeal. I have set out above the basis for computing the amount of damages including interest to which the plaintiff is entitled. From this the ECC award must be deducted. The parties are to agree the computation and submit an agreed draft order for approval.

51. I would also make an order nisi that the costs of the appeal be to the plaintiff and the plaintiff's own costs to be taxed in accordance with legal aid regulations.

Hon Cheung JA:

The medical evidence

52. I agree with the judgment of Le Pichon J.A.

53. I will only deal briefly with the question of causation and the medical evidence. There is no doubt that according to the X-ray photographs and the CT scan of the lumbar spine of the plaintiff taken on the date of the accident, there was abnormality of the bone structure at the L4 region. The plaintiff's medical experts described it as a depression at the corner of L4 body with small bone fragment at the depressed area. They stated that this was the result of a fracture. The defendant's medical experts described it as a limbus vertebra. They stated that this was caused by the degeneration of the back of the plaintiff. The judge accepted the evidence of the defendant's experts.

The proper approach

54. The approach of the court in considering the question of causation in the light of the medical evidence is stated by this Court (per the late Hunter J.A.) in Lee Kin-kai v. Ocean Tramping Co. Ltd. t/a Ocean Tramping Workshop [1991] 2 HKLR 232 :

1.	a)	Causation is essentially a matter for the judge and not for the doctors.
	b)	The judge will be assisted by the medical evidence but is not bound by it.
2.	a)	The law and medicine apply different standards.
	b)	In law there is a causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient, it does not need to be the sole cause.
	c)	The doctors on the other hand practise the science of aetiology. They look for "clinical cause" or "irrefragable chain of causation" which is to be proved beyond reasonable doubt or beyond any doubt.
3.	The judge when considering causation is not only entitled, but is bound to use his common sense.

The circumstances

55. In considering the cause of the plaintiff's disability in the back region, the court is not confined to the medical evidence but is entitled to look at all the surrounding circumstances. There is evidence that the plaintiff on admission to the hospital had informed the hospital that he had a fall after being hit by the water pipe. The hospital record revealed that on admission there was "tenderness over the upper thoracic and lower lumbar spine" of the plaintiff. There were also "some bruises and swelling" at the same region. These are objective evidence which supports the plaintiff's claim of a fall and is consistent with an injury to the L4 which is at the lower lumbar spine.

Overview

56. In regard to the medical evidence, it is important to bear in mind the overview emphasized by the plaintiff's medical experts which was not fully articulated in their medical reports but was only apparent from a reading of the transcript of the evidence. The gist is that one must look at the whole picture of the plaintiff's medical history and not merely confining it to the conditions shown on the X-ray photographs and CT scan taken on the date of the accident.

57. The overview showed that the plaintiff had suffered a back injury 15 years before the present accident in 1998. Apparently the injury had healed and nothing untoward had happened until the present accident. The plaintiff then complained of the accident and abnormality of the plaintiff's back was revealed. During the interval between the accident and shortly before the trial in September 2002, X-rays, CT and MRI scans taken by the plaintiff further revealed that there was progressive calcification and ossification of the affected area in L4. This was described by the plaintiff's experts as a healing process.

58. This overview lends credence to the plaintiff's case that there was a trauma as a result of the fall which caused an injury to the L4 region. The healing process was consistent with an injury to the affected area. The defendant's own expert Dr. Danny Tsoi recognized that this evidence as being consistent with the plaintiff having met with an accident in 1998. The judge had not dealt with the overview in his judgment.

Causation is proved

59. There are, of course, other matters relied upon by the defendant's experts, such as the absence of signs of bleeding and swelling at the X-ray photographs and CT scans taken eight hours after the accident, the presence of the sclerotic margin at the affected area and that the limbus vertebra could be formed either by reason of development or degeneration. These are of course relevant matters but they are not matters that will conclusively show that there was no trauma.

60. While the evidence clearly showed that there were signs of degeneration on the plaintiff's back, the surrounding evidence and the overview of the medical evidence in fact support the plaintiff's case that, on a balance of probability, his back pain and disability was caused by the accident as described by him in 1998.

61. The accident was not merely an unpleasant blow to the centre of the plaintiff's back by a falling pipe as described by the judge but also included the fall that followed afterwards. While the blow by itself may not necessarily cause the injury, it must be the impact of the blow together with the fall which caused the injury at the L4 region.

62. This is consistent with the diagnosis of a fracture caused by a trauma. It is equally consistent with a trauma causing the degeneration which had remained asymptomatic to manifest its symptom of pain and discomfort to the plaintiff. The medical evidence, properly analyzed, in fact lends support to the plaintiff's case.

The result is the same

63. In either situation, causation has been proved : the plaintiff's disability is caused by an accident due to the fault of the defendant.

64. Mr. Warren Chan, S.C., counsel for the plaintiff, is content to rest his case on the latter situation. He is clearly entitled to rely on this in the appeal even if the judge had not addressed this issue. The principle that a tortfeasor must take the victim as he finds him was relied upon by counsel for the plaintiff at the trial. Had the judge found that there was a fall, I have no doubt that he would continue to address the two situations I have just stated. There is sufficient evidence adduced in this case for a finding to be made on either of these two situations.

Hon Suffiad J:

65. I have had the benefit of reading in draft both the judgments of Le Pichon JA and Cheung JA. I am in total agreement with both their judgments and have nothing to add.

Hon Le Pichon JA:

66. Accordingly, the appeal and cross-appeal will be disposed of as proposed in paragraphs 50 and 51 above.