YIP PIU v. CHUNG KAM FEI CATHERINE AND ANOTHER

HCPI 1168/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1168 OF 1999

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J U D G M E N T

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THE CLAIM

1. On 4 December 1997, the plaintiff was a passenger in a taxi which had just been stopped for him to alight, when a car, driven by the 1st defendant and owned by the 2nd defendant, collided with the taxi from behind. The collision caused injuries to the plaintiff. Liability was only conceded by the defendants on the first day of a trial.

PAIN, SUFFERING AND LOSS OF AMENITIES

The injuries

2. According to the statement he made to the police on 6 January 1998, the plaintiff fainted after the collision and he felt neck pain, and his nose was bleeding. There was injury to the back and chest. He was admitted to hospital and was discharged on 8 December 1997.

Hospital medical records

3. The medical report of the Department of Surgery of the Prince of Wales Hospital dated 19 October 1998, stated that the plaintiff suffered :

"(i) minor head injuries (transient loss of consciousness without skull fracture; normal CT scan of the brain); and

(ii) dorsal back pain (probable thoracic T9 fracture, followed up in the orthopaedics clinic)."

The medical report of the Department of Orthopaedics and Traumatology of the Prince of Wale's Hospital dated 13 November 1998 stated that :

"1. ..... Regarding his back problem, X-ray performed and suspected fracture T8, T9 vertebrae but CT spine did not show any fracture. MRI spine showed normal finding.

2. On recent follow up on 13/10/98 back pain improved but still unable to work. Physiotherapy has been stopped and he is on oral analgesic.

3. In my opinion patient did not have objective finding to show permanent disability. However, long period of chronic back pain may prevent him to go back to his present work."

4. The MRI referred to in the report of 13 November 1998 was performed on 16 September 1998. The MRI result showed that there was no disc bulge and no spondylolisthesis.

5. The plaintiff was admitted to the Queen Elizabeth Hospital on 26 March 1998. According to the report from the Queen Elizabeth Hospital dated 3 November 1998, he complained of weight loss in the recent two and three months, it is stated that : "No abnormality was found on examination of the precordium, chest, abdomen and central nervous system. ....".

Recent medical examinations

6. The plaintiff was examined by two doctors for the purpose of this trial, namely Dr Au Ka Kau ("Dr Au") and Dr Brian Chan Kwok Pui ("Dr Chan"). The plaintiff's complaints to the two doctors were back pain and weakness of the right leg with pins and needles sensation of his right foot.

Dr Au

7. According to Dr Au's report of 20 February 1999, the plaintiff informed him that he could stand for an hour, walk for 20 minutes and sit for half an hour. Prolonged sitting, walking and standing would cause back and right leg pain and weakness of the right leg. He could not run, but could jump and squat. He could lift weight of about 7 pounds. He claimed that he had to limp if he had to walk quickly. From time to time, the back pain woke him up at night. Dr Au's finding was that :

"1) There was tenderness and muscle spasm of the lumbar spine.

2) There was limitation of the lumbar spine movement.

3) There was impairment of the straight leg raising test.

4) There was impairment of the sensation of the right foot.

Radiographic examination during my interview shows no abnormality."

8. In respect of the lumbar spinal movement, the only restriction was on the flexion position (i.e. by the plaintiff bending forward), the normal range of movement was 60 degree while he could only perform 40 degree. However, Dr Au accepted that this was only a minor restriction. In respect of the impairment of the straight leg raising test, the restriction only appeared on the left leg, there was also very mild wasting of the left leg muscle. The plaintiff's complaint, however, was pain on the right leg. Dr Au stated that there was symptoms and signs suggestive of nerve root impingement at the lumbar spine region. This may be caused by disc herniation in the lumbar that compresses on the nerve root. Dr Au suggested an MRI investigation of the lumbar spine. As a matter of fact, on 10 February 1999, MRI had been performed with the following findings :

"1) Normal lumbar lordosis is preserved.

2) No bony lesion or fracture seen.

3) The disc space and pedicles are normal.

4) Slightly impaired flexion movement of the lumbar spine is noted in the flexion position.

5) The bony alignment of the lumbar spine is satisfactory in extension position."

9. Dr Au in his report of 21 June 1999 accepted that the MRI of the lumbar spine was normal and they was no nerve issue compression. In his report of 23 April 2000, Dr Au was of the view that concerning the cause of Mr Yip's symptom, his back pain could be due to muscle injury, facet joint injury or ligament injury etc. Concerning his right leg symptom, there was probably some disc herniation that caused residual scarring and damage to the nerve root. When the MRI was performed, the disc lesion probably had already healed. In such incidence, the MRI may not pick up minor pathology in the region studied.

10. The plaintiff was examined again by Dr Au recently on 4 November 2000. Dr Au's report of 5 November 2000 stated that the plaintiff complained that prolonged sitting for half an hour would cause discomfort at the lower back. His standing tolerance was half an hour. He needed resting after walking for 15 minutes. The examination of the lumbar spine by Dr Au revealed that :

"1. There was no deformity of the lumbar spine.

2. There was tenderness in the lower lumbar region.

3. There was muscle spasm on the paraspinal region.

4. There was limitation of the lumbar spinal movement.

5. The Straight Leg Raising Test was 70 degrees on both sides."

The impairment of the lumbar spinal movement was only slight. In his evidence, Dr Au concluded that the plaintiff had a disc herniation which had since been resolved. However, the injury caused the scarring of the nerve tissues resulting in the pain now suffered by the plaintiff in his back and in his right leg. Dr Au stated that the plaintiff could not return to his pre-accident job because of the risk in causing a relapse of the injury. Using the American Medical Association Guard for Evaluation of Permanent Impairment (4th ed.), the plaintiff's body impairment was assessed at 5% and his loss of earning capacity at 8%.

11. On 15 May 2000, x-rays were taken of the dorsal spine of the plaintiff which revealed dorsal spondylosis involving T9 and T11 vertebra with anterior marginal osteophytosis. X-ray was taken also of the lumbosacral spine on the same day which revealed decreased lumbar lordosis with scoliosis convex to right. The disc spaces and pedicles were normal. The test revealed that there was degeneration on the back.

12. Regarding the degeneration of the plaintiff's back, Dr Au was of the view that a degeneration could occur by reason of age and by trauma, neither of which are applicable in the present case.

Dr Chan

13. According to Dr Chan who examined the plaintiff on 15 May 2000, the plaintiff walked into his surgery with normal gait. He could stand, sit and squat without pain. There was local tenderness over the right lower back near the base of the sacrum. Neurological examinations of the lower limbs revealed subjective numbness over the whole right leg, back and front, with extension into the dorsum of the right foot, which did not conform to any particular anatomical level of dermatome. The left lower limbs' sensation was normal. Motor power and reflexes were normal on both lower limbs. The plaintiff had full range of back motion. Dr Chan observed that : "In view of the normal MRI findings of the lower dorsal and lumbar spine done on 16/9/98 in Prince of Wales hospital with no evidence of fracture, disc bulge and spondylolisthesis, the subjective numbness was unlikely to have any significant pathology."

14. Dr Chan was further of the view that the plaintiff could return to his pre-accident job as a brick-layer, preferably within six months after the accident. He considered that six months of sick leave would be appropriate.

15. Dr Chan's view on the degeneration of the plaintiff's spine was that the degeneration was extremely slight. The probable cause was due to heavy manual work.

My finding

16. Considering all the medical evidence, my view is that the plaintiff had a disc herniation as a result of the accident. This is the most probable cause of the symptoms and the way in which the accident occurred supports the finding of an injury in this manner. The herniation had been healed but had caused scarring of the nerve. The current complaint of the plaintiff of pain at the back and the leg is caused by the scarring of the nerve which had been impinged because of the disc herniation. The muscle spasm at the back indicates that there is pain in that region. However, I do not accept that the plaintiff's present claim of pain and discomfort is as serious as he made out. In my view, he probably had exaggerated some of his impairment. While, no doubt, different people have different levels of tolerance of pain, the objective medical evidence revealed that he had only suffered a mild back injury. The recent objective medical evidence such as only slight restriction in the lumbar spine movement and no restriction in the leg movement clearly point towards a picture of a 26 year old young man who had exaggerated his complaint. This may be due to ignorance or a wish to lodge an inflated claim, but either way, there is exaggeration. One example is that in his evidence, he pointed to a bony protrusion at the back which turned out to be a sebaceous cyst which had been calcified. The cyst was formed because of the blockage of the sebaceous gland. It has nothing to do with the back injury. Another example is in respect of his recent injury to his right leg. He said he was injured in the course of work in June 2000 and he had not worked after that. This could not be a serious injury because a recent examination by Dr Au in November 2000 revealed no abnormality of the leg. Some of the exclamation of discomfort when he was giving evidence was clearly exaggerated.

17. His initial claim for damages for pain, suffering and loss of amenities was $150,000. At trial, it was amended to $380,000. In my view, the appropriate range of damages under this head is $100,000.

LOSS OF EARNING

Pre-trial total loss

When could the plaintiff resume work?

18. After the accident on 4 December 1997, the plaintiff was granted sick leave until 22 June 1999. He did not work during this period. Notwithstanding the granting of the sick leave, in my view, the latest he could resume work is nine months after the accident, i.e. September 1998. On 16 September 1998, the MRI revealed that there was no compression or wedge fracture of the lower dorsal vertebrae, there was no disc bulge or spondylolisthesis. He may suffer some residual pain, but that would not be sufficient to preclude him from resuming work. The plaintiff had also stopped physiotherapy treatment in June 1998.

19. The plaintiff was born on 12 August 1975. After he left school at the Form 3 level, he took up different employments. First, he worked as a delivery worker in a van, then he worked in the restaurant of a club house, first as an apprentice in the kitchen and later becoming a chef. He left the job because of disagreement with his employer. During the time when he worked in the club house, he also learned masonry and brick-laying. After he left the job as a chef, he was introduced by a family friend, Mr Lui Kwong Chuen ("Mr Lui") to work in a construction site in the New Territories. He started work in April/May 1997, first as a helper to the brick-layers and after three months, he became a master brick-layer himself. At the time of the accident, he was working at the construction site in the New Territories.

Loss of earnings

20. I am satisfied with the evidence of the plaintiff that he was earning $900 per day in the construction site. He was able to work 27 days a month. His monthly income at the time of the accident was $25,000 per month. Apart from the regular daily wages, he was able to earn $700 per month, this included overtime payment and also extra allowance paid to him by his employer. Although in his Statement of Claim, he stated that he was working with the Sun Hung Kai Company at the time of the accident, in truth, he was not employed by that company but probably by a contractor who asked Mr Lui to pay the plaintiff for his work. Mr Lui was also working in the construction site in the New Territories at that time as well.

21. There is evidence that as a result of the financial crisis in July 1997, the construction industry in Hong Kong was affected. Mr Lui who gave evidence for the plaintiff stated that the jobs in construction sites decreased and he did work on decoration projects. While the wages of construction site workers was at the $900-$1,100 level, the real issue is whether such jobs were available. As it turned out, Mr Lui was now only able to earn at a lower wage of $850 per day as a casual worker in the Mass Transit Railway Corporation ("MTR"). His job at the MTR was involved with the maintenance of the train stations such as fixing the tiles. Mr Lui said that on average he could work 24 to 25 days per month.

22. In my view, had the plaintiff not suffered the accident in December 1997, he probably would be affected by the downturn in the construction industry. He probably would have earned an average of about $20,000 per month which is based roughly on a daily wage of $850 x 24 days. His pre-trial total loss of wages is $20,000 x 9 months at $180,000.

Pre-trial partial loss

23. In July 1999, the plaintiff started work as a painter for a company which paint the lines in tennis courts. This would not require too much effort. He was only required to push a cartwheel which was fixed with an instrument to allow the paint to be discharged onto the ground. His initial salary was $450 from July 1999 to February 2000, this was increased to $470 since February 2000. The plaintiff worked about 15 days a month from July 1999 to September 1999 earning $6,570 per month, but thereafter he was able to work 28 days per month.

24. I am satisfied that the plaintiff could resume work by September 1998. I accept that he could not resume his former job as a brick-layer which involve lifting of heavy weight and climbing in scaffoldings. There was a real risk that such activities would cause a relapse of the disc herniation. Although the plaintiff could not resume his pre-accident job as a brick-layer, I am not satisfied that he could only find a job as the tennis court repair worker at the initial salary of $6,750 ($450 per day for 15 days a month). For a long period of time after he left school, he was a chef earning $12,000 per month. He had only done the job as a brick-layer for about nine months, i.e. March 1997 to December 1997, when the accident occurred. Although in his witness statement, the plaintiff stated that after the accident, he could only find a job with less income, there is very scarce evidence on the efforts he had made in looking for an alternative job. Mr Lui, in his evidence, stated that the plaintiff had asked him if there were construction site jobs available and he replied "no". Other than that, there was no evidence on this issue. In my view, one could use his earning as a chef in calculating the loss. In my view, he could well earn $12,000 per month. In September 1999 his earning reached $12,600 per month, i.e. $450 x 28 days. The $12,000 will be used as the basis of calculation for the partial loss of earning until January 2000. His partial loss of earning for a month is $8,000, (i.e. $20,000 - $12,000).

25. The pre-trial partial loss from September 1998 to January 2000 will be -

$8,000 x 16 months = $128,000

26. From February 2000, the plaintiff's income was $13,160 per month ($470 x 28 days). In June 2000, the plaintiff hurt his ankle at work and he did not resume work with his present employer since June 2000. His failure to earn any wages from June to now cannot be attributed to the defendants. His partial loss of earning per month is $6,840, i.e. $20,000 - $13,160. The loss from February 2000 to November 2000 will be :

$6,840 x 10 months = $68,400

Post-trial loss of earnings

27. The parties agreed that a multiplier of 15 is appropriate. The plaintiff's loss of earnings was directly attributable by his injury and the defendants are liable for the loss. The loss of earnings would be :

$6,840 x 12 months x 15 years = $1,231,200

Loss of earning capacity

28. The plaintiff also seeks loss of earning capacity. I am not satisfied that the requirements set out in Moeliker v. Reyrolle & Co. Ltd [1977] 1 WLR 132 has been satisfied. The plaintiff is an versatile person. Prior to him becoming a brick-layer, he had worked as a chef. During the time when he was working as a chef, he also learned the trades of a brick-layer. I am not satisfied that there is a substantial or real risk that he might lose his present employment. His current employment does not require him to lift heavy weight. His injuries are not of such magnitude that they would pose a real risk to his continuous employment.

Medical expenses and travelling expenses

29. The sum of $4,128 is agreed between the parties.

Tonic food

30. The plaintiff is claiming $2,000 for tonic food. This is accepted.

Summary

CONCLUSION

31. There shall be judgment to the plaintiff for the sum of $1,713,728. There shall be interest at 2% from the date of the service of the writ to judgment on the general damages of $100,000. The pre-trial loss of earnings of $376,400 will attract interest at 6.25% from date of the accident to date of the judgment. Interest at 6% from date of the accident to judgment on the special damages.