LEE CHUNG TAI v. KOWLOON MOTOR BUS CO. (1933) LTD.

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J U D G M E N T

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Clough, J. A :

1. This is the judgment of the court.

2. The appellant who was formerly the employee of the respondent bus company appeals against an award of $6,696 compensation with interest made in his favour on the 1st June 1988 by His Honour Judge Funs under section 10 of the Employees' Compensation Ordinance (Cap. 282), being the aggregate of periodical payments due to him in respect of a period of his temporary incapacity subsequent to his injury at work. The appellant is dissatisfied with the award because his primacy application had been under section 17B(1) of the Ordinance for the cancellation of an agreement made under section 17 between the appellant and the respondent as to the compensation payable to him by the respondent under sections 9 and 10 of the Ordinance.

3. The effective issue below and on appeal was whether the agreement ought to be set aside (and compensation thereafter assessed) under section 17B on the ground that for the purposes of section 17B(1)(b) it had been "entered into in ignorance of, or under a mistake as to, the true nature of the injury". It is common ground that the amendment to section 17B(1)(b) inserting the words "or the extent" immediately after the words "the true nature" is not applicable because the amendment was made by the Emplovees' Compensation (Amendment) Ordinance 1986 (No. 60 of 1986) to have effect subsequent to the date of the appellant's injury.

4. The appellant sustained his injury on the 17th May 1983 when washing down one of the respondent's buses. According to his evidence he slipped and felt into a square shaped drain in the bus, his waist hitting the metal frame of the drain in which he became trapped.

5. A medical report made on the 30th November 1984 by Dr. Leung of the Orthopaedic A Unit at the Princess Margaret Hospital shows that the appellant was admitted to his Unit on the 18th May 1983, complaining of back pain and right knee pain. The latter pain is not relevant to this appeal. The following matters mentioned in the report are material. There was diffuse pain and tenderness over the appellant's back with decrease in movement of the spine. The strainght leg raising test was limited to 30º in the case of both legs. An X-ray showed that there were degenerative changes over the appellant's "lumbarsacral spine".

6. The appellant received physiotherapy and by the 2nd June 1983, when he was discharged, his back pain had decrease. On the 7th June 1983 he was again admitted to Dr. Leung's unit for physiotherapy for his back pain. He was discharged on the 10th June. Thereafter he was an out-patient and received analgesics and physiotherapy treatment. His back pain gradually decreased and he was last seen by Dr. Leung's unit on the 10th October 1984 when he complained of back pain after working.

7. On the 21st January 1985 an ordinary assessment board issued certificate of-assessment pursuant to sections 16D(5) and 16F of the Ordinance assessing the percentage of the loss of earning capacity permanently caused to the appellant by his injury at 3 per cent. The appellant was certified to he suffering from "Contusion of Back" and right knee injury. The percentage permanent loss of earning capacity was certified to be:

No review of this assessment was sought by either party under section 16G of the Ordinance and it was not the subject of any appeal to the District Court under section

8. On the 30th January 1985 the appellant signed a report form supplied by the respondent stating inter alia that he had no objection to the certificate of assessment. On or about the 5th February 1985 the parties executed a section 17 agreement under which the respondent was obliged to pay the appellant $38,662.67 compensation comprising periodical payments amounting in aggregate to $32,953.14 and a further $5,709.53 for 3 per cent incapacity. The agreement recorded that the appellant's back and right knee were contused in the accident (clause 2). It appears to have followed the certificate of assessment in providing that the parties agreed that the nature and extent of the injuries was "contusion of back (&) right knee" (clause l) and that the appellant had a 3 per cent permanent incapacity (clause 5). The aggreement was approved Commissioner under section 17(5) of the Ordinance on the 9th February 1985.

9. On the 19th June 1985 the appellant applied to set aside thesection 17 agreement. It appears from the submissions of counsel for the respondent at the conclusion of the hearing in the District Court that the hearing of the application had been deferred pending the decision of another division of this court in Tung Shui Run v. Gammon Building Construction Ltd. (Civil Appeal Nos. 107 & 110 of 1985). That was a case in which the employee sought to set aside an agreement under the unamended section 17(5)(b) of the Ordinance which was in the same terms as such of the terms of the present section 17B(1)(b) as are applicable to the present case.

10. In Tung Shui Bun's Case the court refused to accept the argument that the expression "true nature of the injury" in section 17(5)(b) included the extent of the injury. Delivering the judgment of the court Silke J. A. (as be then was) observed:

"The employee's injury has always been a sprained back. It would seem, from the medical reports subsequent to the date of the agreement, which reports were before the second District Judge, that the effect of the injury lingered on, but that the nature of the injury remained. In our view, the word 'true', if it is not to be mere surplusage, is there to emphasize the word 'nature'."

Later in his judgment Stlke J. A. observed:

"In our judgment, the word 'true', in this, context, must be taken to connote the 'true and unique' nature of the injury in a similar fashion to the expressions 'true identity' or 'true likeness'. Thus, giving to the phrase its ordinary and natural meaning, we do not consider it covers the extent of the effect of the injury."

11. It was evidently this decision which prompted the amendment to section 17B(1)(b), already referred to above, to the words "or the extent" immediately "true nature".

12. In March 1987 the appellant was examined by Dr. Hodgson whose report dated the 2nd March 1987 (prepared in conjunction with Dr. David Lee) made it clear that a psychiatric report on the appellant was also recommended. The report stated that the appellant did not give a history of previous low back pain although the X-ray of his low back referred to in Dr. Leung's report had shown degenerative changes of his lumbar sacral spine. Dr. Hodgson records in his report that the appellant did not admit to having had any back pain before the accident. The report mentions that the appellant complained of low back pain even when lying down. The results of the straight leg lifting test were 50°for the right leg with severe low back pain and 60°for the left leg with low back pain.

13. Dr. Hodgson found the appellant to be suffering form slight tenderness in the spinous processes between L1 and 2 and L2 and 3, and a little more tenderness between L3 and 4 and L4 and 5. The most acute pain was between the spinous processes of L5 and S1. The report refers to the results of X-ray examination available to Dr. Hodgson showing:

"The Low Back - marked narrowing of the intervertebral disc space between L5 and S1 with traction spurs at the anterior lower border of L5 and the upper border of S1 anteriorally. L4-5 disc space, there is some undue movement between L4 and L5 vertebral bodies on flexion/extension views."

14. Dr. Hodgson's diagnosis was the appellant was suffering from an old prolapsed intervertebral disc at L5-S1 and probably a more recent damage to the intervertebral disc at L4-5. He was in no doubt that the appellant was suffering from severe low back pain which made it impossible for him to work at that time. He did not consider that the prognosis was good. He and Dr. Lee estimated the appellant's permanent disability in the region of 20 per cent and his loss of earning capacity in the region of 40 per cent. By his letter dated the 19th March 1987 addressed to the Legal Aid Department Dr. Hodgson expressed the opinion that the appellant's accident had aggravate his prolapsed intervertebral disc which it seemed had given him "very little in the way of symptoms and these followed the accident."

15. At the hearing below the appellant relied on the evidence of Dr. Leung, Dr. Hodgson and himself to support his case that the agreement had been entered into in ignorance of or under a mistake as to the true nature of his injury. His case seems to have been presented on the footing that the assessment board had failed to recognise that the appellant's injury was not merely a contusion of the back but a bad disc problem which was not the same thing. The disc problem was said to be a prolapsed disc caused by the trauma of the accident aggrayating the appellant's lumbar sacral spine which had been affected by degenerative changes before the appellant's accident but had not produced symptoms of pain until the trauma of the accident

16. Dr. Leung's evidence related to the matters mentioned in his report which he produced. When he gave evidence in chief he referred to the X-ray of the appellant's lumbar sacral spine showing degenerative changes and said that the straight leg raising test of 30 per cent limitation could be expected for degenerative changes or pain. Under cross-examination he indicated that when had prepared report in 1984 he had regarded it as obvious to any medical man that the trauma of the appellant's accident would have aggravated the degenerative condition of his spine. The following passages in Dr. Leung's cross-examination make this clear:

"Q. What would you say as being the likelihood if any, of a traumatic accident such as the accident aggravating the condition of the patient who had degeneration

A. Definitely aggravating the condition.

Q. In what sense?

A. Made it worse.

Q. When you completed the report in 1984, you fully appreciated that the traumatic experience of the patient as a result of the accident would aggravate the condition of his spine in degneration?

A. Yes.

Q. It would be obvious to any medical men to look at your report?

A. I think so."

17. Subsequently he said under cross-examination that it was the usual practice for the doctor on the assessment board to go through all the record before making the assessment and he went so far as to say that he thought that whoever had signed the certificate of assessment (referred to as a report by counsel) would be aware that the degeneration would be aggravated by the accident. He was unable to give any reliable evidence as to whether the appellant had, on admission after the accident given any history of previous back pain.

18. In chief Dr. Leung said that contusion an impact caused by physical force after there would be tissue trauma resulting bleed and bruises. In general contusion could, he said, be minor or severe, sometimes it gave no symptom and some times it gave residual pain. Under re-examination he was again asked what "contusion" meant and he replied that it simply meant "injury" and agreed that "contusion to back" was the same, as "injury [to] back" Asked if injury to back meant only one type of injury he replied in the negative and added that it could mean a lot of things.

19. Regarding Dr. Leung's experience as a member of an assessment board, he said under re-examination that he had been on the roster two or three times and that his boards had dealt with 40-50 cases each time between 2 and 5 p.m. However the appellant's evidence was that at the time of the assessment in his case the board had his medical record, there were several doctors and nurses present and the assessment took up 30-45 minutes.

20. Dr. Hodgson was emphatic in his evidence, enlarging on his report and his letter dated the 19th March 1987, that the applicant had a prolapsed intervertebral disc before the accident due to degenerative changes of the lumbar sacral spine but with little if any symptoms of pain and that this condition had been aggravated by the trauma of the accident so as to produce symptoms of pain. The prolapse of the intervertebral disc was not the same thing, he said, as contusion of the back. His evidence was that a contusion of the back was traumatic damage to the skin and underlying tissue producing bruises. He added that a contusion of the back would not cause any restriction of straight leg lifting but perhaps a little loss of movement. It followed, according to Dr. Hodgson, that the description of the appellant's injury in the certificate of assessment was incomplete the assessment board had called the injury contusion of the back without noting a bad disc problem which they had not diagnosed.

21. Under cross-examination Dr. Hodgson accepted that it would be normal practice for the assessment board to review all the records before making their assessment. He was reminded of the passage in Dr Leung's report referring to the X-ray report showing degenerative changes over the appellant's "lumbarsacral spine". He observed that it was only the lumbar that degenerated and not the sacral but, apart from what he clearly regarded as the elementary error of including sacral generation, he accepted that Dr. Leung's description of degeneration of the appellant's degenerative spine was correct if confined to the lumbar spine. He acknowledged that, not having examined the appellant at the material time he could not (apart from criticising Dr. Leung's reference to the lumbar sacral spine rather than the lumbar spine) cast doubt on any other aspect of Dr. Leung's report.

22. The appellant does not seem to have been asked any questions in chief about his understanding concerning, the nature of his injury or any mistake he had made in relation to it. As regards his acceptance of the certificate of assessment, he said:

"At that time, I thought that I was alright and since assessment had been made and after I recovered, I would be employed as a driver, that was why I had no objection to assessment and I agreed not to pursue on sick leave pay."

23. Under cross-examination he agreed that all alone his own description of his "suffering" when he was on sick leave had been low back pain, as recorded on his sick leave certificates. He accepted that however serious it was his complaint had been of low back pain. Asked if he had been happy when the assessment board certified that he had 3 per cent disability he replied that it was correct from the findings of the doctor. He was not re-examine on these aspects of his evidence.

24. The respondent employer adduced no evidence.

25. The judge found that the appellant had not discharged the onus which was upon him to prove that he had entered into section 17 agreement in ignorance of or under a mistake as to the true nature of his injury. In arriving at this conclusion he relied on a number of findings and propositions which been assailed by Mr. Sarony on behalf of the appellant.

26. In relation to the central issue of the true nature of the appellant's injury the judge referred to the fact that section 16H of the Ordinance provided that the certificate of assessment was admissible in evidence on production without further proof and became evidence of the matters stated therein. He then concluded that there was therefore nothing wrong in the agreement describing the appellant's injury in the same way as the certificate.

27. As to the evidence concerning the nature of the appellant's injury, the judge referred to the fact that the appellant relied upon the evidence of Dr. Leung and Dr. Hodgson to establish that the true nature of the appellant's injury was otherwise than as stated in the agreement. He indicated that it was clear to him that the pain, the contusion of his back and the knee injury of the appellant were originated by the trauma which the appellant received in the accident. However, he concluded that on the evidence adduced it was impossible to estimate at what time the "aggravation or triggering up [of] his disease" which had already been there on his spine occurred, or if such aggravation and triggering up occurred at all after the accident.

28. The judge went on to comment that no medical member of the assessment board had given evidence and that Dr. Hodgson had not been in a position to say that the findings in Dr. Leung's report and the certificate of assessment (by the medical member(s) of the board) were wrong as he and not examined the appellant or been present at the material times. He said that each professional man was entitled to his own expert opinion opinion and "way of examination in coming to his finding". He continued by saying it was almost an impossible task to decide which expert opinion was right in the absence of "cogent evidence in support" and that he did not consider it right to come to a conclusion by relying on one expert's evidence in the absence of the other expert's evidence when a dispute had arisen on the opinion of one expert.

29. The judge then observed in what we regard as the crucial part of his judgment:

"The doctor and other members of the Board must have the medical history including Ex. P1 compiled by PW1 [Dr Leung] for consideration. Otherwise, I don't believe that the certificate could be made out. Without the doctor who signed the certificate to testify, it is impossible for me to say and it is wrong to guess what he had found on the applicant's true nature of injury was wrong. I can't infer that he had not taken into account of the applicant's physical condition or his spine at the time of examination."

30. The judge went on to express the view that the "approach" of the appellant was to have the agreement canceled in favour of Dr. Hodgson's reassessment of the appellant's percentage incapacity and that this approach was not properly related to the true nature the applicant's injury. In the judge's view reassessment of the percentage of disability expressed in an assessment certificate was a matter for appeal under section 18 of the Ordinance seems to have been of the view that in seeking to have the agreement cancelled under section 17B the appellant was attempting to bypass section 18 of the Ordinance and avoid an appeal under that section to set aside the certificate of assessment which formed the vital part and was the foundation of the agreement. However the judge made it clear that, apart from his view that this was an attempt to bypass section 18, he was not satisfied on the evidence that there was any ignorance or mistake as to the true nature of the appellant's injury "in the absence of the doctor's evidence on issuing the certificate for the purpose of assessment."

31. The appeal was ably argued by Mr. Sarony for the appellant and Mr. Y. C. Mok for the respondent. There are two matters on which Mr. Mok did not seek to argue that Mr. Sarony was not on firm ground in criticising the judgment below. Thus the judge's reliance on section 16H regarding the evidential value of the certificate of assessment was not sustainable because it was clearly open to the appellant adduce evidence to establish that the description of the appellant's injury in the certificate of assessment was mistaken and that therefore the agreement itself was based on the mutual mistake of the parties.

32. Again, the judge's finding that on the evidence it was impossible to estimate at what time, if at all, the "triggering up" of the appellant's prolapsed intervertebral disc had occurred seems to have been contrary to the evidence of both Dr. Leung and Dr. Hodgson that the pain suffered by the appellant must have been the symptom of the aggravation of the prolapsed disc caused by the trauma of the accident.

33. As to the question of bypassing section 18 of the Ordinance, Mr. Sarony argued that the judge was clearly wrong in holding that the appellant was attempting to bypass the appeal procedure laid down by section 18 when he applied to cancel the agreement on the footing that the certificate of assessment had wrongly described the appellant's injury. Mr. Mok contended that the judge's views were obiter and that in any event he was intending to say no more than that this was an extent of injury case in respect of which, under the law applicable at the time of the agreement, an appeal against the certificate of assessment was the only remedy. We are inclined to accent Mr. Sarony's argument on this matter but the issue is not a decisive one because the judge made it clear that apart from this question he was deciding the application on the basis that the was not satisfied on the evidence that the appellant had proved his case.

34. Mr. Sarony contended that the judge erred in holding against the appellant on the evidence in reliance on the absence of any evidence from the doctor or doctors who had been members of the assessment board which issued the certificate of assessment. The passage in the judgment which Mr. Sarony criticised was in the following terms:

"I don't consider that it is right to come to a conclusion by just relying upon one expert's evidence in the absence of the other experts evidence when a dispute on the opinion arises."

35. Mr. Mok rightly conceded that as a general proposition it could not be right that, where a technical issue arose as to whether one doctor's opinion was right or wrong, that issue could not be determined by the court on the evidence of another doctor simply because no evidence was given by the doctor whose original opinion was in issue. However he reminded the court that English was not the first language of the judge. He contended that, considered fairly in context, particularly in conjunction with what is cited above as the crucial passage in his judgment (which followed immediately after the passage criticised by Mr. Sarony), what the judge meant was that he was not prepared to hold on the strength of Dr. Hodgson's evidence alone, and in the absence of the medical members of the assessment board, who must have had Dr. Leungs report before them when assessing the appellant's injury, that the assessment board had been mistaken about the true nature of the appellant's injury. We agree.

36. The real substance of the appeal lies in Mr. Sarony's contention that the certificate of assessment failed to identify and wholly misrepresented the true nature of the appellant's injury which was not a contusion but an aggravated prolapsed lumbar sacral disc. The argument then runs that the agreement was founded on or adopted the erroneous description of the appellant's injury in the certificate, so that it follows that it is vitiated by the error in the certificate and it is thus demonstrable that the applicant entered into the agreement in ignorance of or under a mistake as to the true nature of his injury. The evidential basis for this argument is primarily the evidence of Dr. Hodgson outlined above.

37. As far as the mental processes of the appellant himself are concerned, Mr. Sarony conceded that his understanding of the true nature of his injury was not the subject of any evidence led from him and was not fully explored below. However it was elicited from the appellant under cross-examination that he had told the assessment board how he felt at the time and that all along his description of his suffering had been low back pain as appeared from his sick leave certificates. There was no suggest from his evidence that his understanding of the nature of his injury, which he naturally expressed in lay rather than medical terms, had ever changed or been induced by ignorance or mistake.

38. Furthermore, as Mr. Mok rightly submitted, both the employee and his employer who are parties to a section 17 agreement understand the nature of the employee's injury in general terms and not in the technical terms of the medical expert, hence the use of general terms in the certificate of assessment which should not be held to mistaken simply because it does not describe the nature of the employee's injury in precise medical terminology. Otherwise most certificates of assessment would be vulnerable to attack on appeal or application to cancel the agreement.

39. Mr. Sarong was driven, as already indicated above, to rely on error in the certificate of assessment as the source of ignorance or mistake as to the true nature of the appellant's injury which vitiated the agreement made by the parties in reliance upon the certificate.

40. We accept that the evidence of both Dr. Leung and Dr. Hodgson established that if the certificate of assessment had only referred to "Contusion of Back" without more, then it would not have been a true description of the appellant's injury because it would have been incomplete. But the certificate had more to say. It assessed the appellant's loss of earning capacity by reference to an "Orthopaedic" factor of 2 per cent and a "Psychiatric" factor of 1 per cent. Although the certificate (which is printed in the form specified by the Commissioner under section 16F of the Ordinance) does not in terms refer to "permanent" incapacity, there can be no doubt that the assessment in question was of permanent partial incapacity for the purposes of section 9 of the Ordinance.

41. If therefore the assessment board had misapprehended the true nature of the appellant's injury and concluded that it was confined to a mere contusion in the sense of bruising it seems to us to be inconceivable that the medical members of the board would have assessed such an injury as giving rise to a 2 per cent incapacity attributable an orthopaedic factor. The assessment board must on the evidence of Dr. Leung and the appellant be taken to have had the appellant's medical records including Dr. Leung's report before it at the time it made its assessment. Dr. Leung's report referred not only to the appellant's diffuse pain and tenderness over the back with decrease in movement of the spine but also to the X-ray showing degenerative changes over his lumbar sacral spine and the straight leg raising test result limited to 30° for both legs.

42. Both Dr. Leung and Dr. Hodason regarded these factors as indicating that the trauma of the appellant's accident had aggravated the degenerative condition of his spine. Dr. Hodgson had eventually accepted that the reference in Dr. Leung's report to the degeneration of the appellant's lumbar sacral spine was correct except for the reference to sacral degeneration. Dr. Leung had gone as far as saying that he thought the aggravation of the degenerative condition by the accident would be obvious to any medical men looking at his report and that whoever had signed the certificate would have been aware of this.

43. It seems to us that the evidence did not therefore provide any basis for inferring that the medical members of the assessment board failed to identify the true nature of the appellant's injury. Whilst they described the injury in general terms as a contusion of the back they attributed to that contusion a 2 per cent orthopaedic permanent disability, so that they were in fact identifying an injury to the back which could not have been a mere bruise. The reasonable inference is that the assessment board recognised the true nature of the appellant's injury with the assistance of Dr. Leung's report but described it in general terms in the certificate of assessment. Otherwise there could be no basis for the assessment of 2 per cent permanent disability about 18 months after the accident.

44. There seems to us to be persuasive force in Mr. Mok's contention that the descriptions given to the appellant's injury by the assessment board and by Dr. Leung and Dr. Hodgson are not mutually exclusive and that they are all descriptions of the same injury and condition albeit in varying degrees of medical particularity. It may be that the assessment board were mistaken regarding the extent of the appellant's injury. That is a question on which we express no opinion, particularly as Dr. Hodgson's report indicated that the appellant had sustained damage to the intervertebral disc at L4-5 subsequent to the accident. However we are not persuaded that the judge erred in concluding that the appellant had failed to establish that the board or the appellant had made a mistake in the assessment of his injury or that there were any grounds for the cancellation of the agreement.

45. The appeal is accordingly dismissed and we make an order nisi in favour of the respondent as to the costs of the appeal, with the usual direction for legal aid taxation of the appellant's costs.