DARCY GRANT DMETRICHUK v. TUNG WAH GROUP OF HOSPITALS WONG FUT NAM COLLEGE

HCPI 416/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 416 OF 2005

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J U D G M E N T

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1.  As at 30 April 2002 the plaintiff, a now 50 year old male, was employed by the defendant as a teacher of English at its school.  At around 12h45 he fell down a flight of stairs.  He was admitted to hospital where he remained for three days.  17 days after the accident he returned to work.

2.  Liability and quantum are both in issue.

Liability

3.  This was a short trial:  I see no necessity for traversing in detail the evidence given by the three witnesses.  There is no challenge to the fact that the plaintiff did fall down the stairs.  It was his pleaded case that the fall was “…caused by his falling over some cleaning materials i.e. bucket/broom/mop etc…”.

4.  In his witness statement, which he adopted as part of his evidence in chief, he stated “... I managed to fall down a flight of stairs at the school, essentially caused by my falling over some cleaning materials, i.e. bucket/broom/mop etc which were simply left on the stairs... At the material time the cleaning materials were not... neatly stored but even so stored they still present a hazard.  I had never noticed them before.”.

5.  His oral evidence in court diverged from this version as he testified that when he started to fall he became aware of a rope about his leg or legs.

6.  In essence, his oral evidence was that he entered the stairwell on a landing with a view to descending the flight of stairs.  He noticed, to the left-hand side of the stairwell and thus beside his intended path of travel across the landing, a substantial yellow bucket which is depicted in one of the photographs in evidence.  Although his evidence in chief and in cross-examination was a little unclear as to whether he had seen the yellow bucket, in re-examination he confirmed that he had done so adding that he had not paid particular attention to it.  He continued to walk only to find himself flying through the air then landing on and tumbling down the last few steps of the flight of stairs.

7.  Another teacher, Mr Kai, who gave evidence as the defendant's second witness, was summoned.  He found the plaintiff lying partially on the lower landing and partially on the last few stairs.  The plaintiff indicated that he had pain in his back.  An ambulance was summoned and he was removed to hospital.  That night, he was visited in hospital by the school's headmaster, Mr Yim, who gave evidence as the first witness for the defendant.

8.  The plaintiff has given other apparently conflicting versions as to just what caused the fall.  The notes at Queen Elizabeth Hospital record that he has variously said that the fall was a result of jokes played by a student, of play by a student and of being caught by a rope.  According to Mr Yim, and there is no reason to disbelieve his evidence, when he visited the plaintiff in hospital on the night of fall he had asked the plaintiff how the fall occurred:  the plaintiff had responded that he was not very clear but “... perhaps it was probably out of his own carelessness.” Subsequently, while still on sick leave the plaintiff returned to the school and went to the staircase with Mr Yim: on that occasion Mr Yim says that the plaintiff said that he could not recall how the fall had happened.

9.  The defendant, understandably, points to these various conflicts and contends that the plaintiff has not made out any case.  I do not agree.  Whilst I recognise the variations, it is essential to bear in mind that the plaintiff was walking along unconcernedly only, without warning, to find himself falling down a flight of stairs.  Simple common sense dictates that this must have been an unnerving experience for the plaintiff: it hardly seems surprising that he cannot be any more precise as to what it was which tripped him up and caused him to fall.  It is to be noted that the plaintiff mentioned the presence of the rope not long after his admission to Queen Elizabeth Hospital.

10.  It was the evidence of that Mr Yim and Mr Kai that the defendant appreciated that leaving other buckets depicted in the photographs, the red buckets, near the top of the stairs may constitute a hazard to users of the stairs.  I am satisfied that that is so.  For this reason specific instructions had been given to the cleaning staff to ensure that those buckets were placed in a corner out of the way of users of the stairs.   It is clear from the photographs that had that instruction been followed no danger would have arisen.  It is to be noted that after this incident further instructions were given to the cleaners to remove the red buckets entirely from near the stairs and store them in a more appropriate place.  Notwithstanding the evidence, I am satisfied that this new system of storage was brought about at least in part by the plaintiffs fall.

11.  That said, it is not the plaintiff's case that he fell over the red buckets.  It is his case that what caused him to fall was the yellow bucket and associated items.  If there was a danger created by the smaller red buckets then, plainly, the larger, more obstructive, yellow bucket and its appurtenances also constituted a danger - albeit that inevitably those items also would have been more apparent to the plaintiff or another passer-by. 

12.  It is immediately apparent from the photographs that the yellow bucket and associated items could not have been stored out of harm’s way in the same manner as the red buckets.  To have allowed those items to be placed on the landing close to the top of the stairs would have constituted, in my judgment, a danger to users of the stairs, including the plaintiff.   Whether the plaintiff tripped over the bucket or any of its associated items, including a length of rope, is immaterial.  I am satisfied that the defendant failed in its duty of care to the plaintiff and consequently is liable to compensate him. 

13.  However, the plaintiff had been employed by the defendant for some years prior to this event.  He was entirely familiar with the area where the fall occurred.  He was there on a daily basis during school terms. It was his evidence that this route was a shortcut which he took to get from one room to another. 

14.  The presence of the objects was apparent to him - as they must have been - but, as he conceded, having noticed their presence he paid no particular attention to them.  The reasonable and prudent person, seeing the presence of objects of that nature close to the top of a flight of stairs which he or she was about to use would have ensured that it was safe to proceed.  The plaintiff failed to do so.  In failing to do so he was negligent.  That negligence contributed to the fall.

15.  I judge the parties equally at fault.  The amount payable to the plaintiff falls to be reduced by one half.

Quantum

16.  The medical evidence before me, now some two and a half and three years old, adduced by way of written reports from two orthopaedic surgeons, establishes that the plaintiff suffered from marked degeneration of the thoracic, lumbar and lumbo-sacral spine with decreased disk spaces and significant osteophyte formation prior to the fall.  That is not in issue.

17.  The orthopaedic surgeon engaged by the plaintiff, Dr Hooley, made the following comments in March 2003 after examining the plaintiff, the hospital records, x-rays and MRI scans:

“	[The plaintiff] has significant cervical and lumbar spondylosis, which was present prior to his injury.
	An injury as described could certainly have led to significant spinal pathology.  This could have caused significant aggravation to his pre-existing degenerative disease, and might well have been responsible for the more obvious right sided disc bulge at the L3/4 level.
	The normal history for such injuries is for improvement to occur in most cases, particularly with prolonged treatment over an extended period of time.  Symptoms can however persist for some time.
	It is a little unusual to have marked symptoms such as described by [the plaintiff] some 12 months following his injury, particularly with continuous treatment and medication, however this is not beyond the realms of possibility.  His objective signs are not dramatic, but this can be the case when symptoms are not present.
	At this time it is important that he continues with a regular exercise and rehabilitation program for his neck and back,....  Physiotherapy and medication can be continued as required for more acute symptoms.
	I do not feel that surgery would be of great benefit for his cervical symptoms, however consideration could be given to surgery to his lower back.  He has multiple level degenerative disease of his lumbar spine and a multiple level spinal fusion might be indicated
	Prognosis is fair.  He will almost certainly continue to have symptoms associated with degenerative disease, and these will continue indefinitely.  It is difficult to equate the contribution from his injury.  Symptoms however can, to a large extent I am sure, be improved with an ongoing exercise programme, and if surgery were to be considered for his lumbar spine then I feel that this could well improve his symptoms dramatically.  It may be worthwhile obtaining an opinion from a specialist spine surgeon.”

18.  The orthopaedic surgeon, Dr David Cheng, who examined the plaintiff in November 2003 on behalf of the defendant came to broadly similar conclusions.  He commented:

“	The present condition of [the plaintiff] is that there are still residual aches and pains of the back and neck, headaches and migraines.  Present examination is quite unremarkable.  There is no neurological deficit.  X-rays showed gross degenerative changes over the neck and back.  The symptoms, as far as I can gather, are more of a nuisance in nature rather than debilitating.  There are no positive objective signs to support any significant physical impairment.  It is probably that these symptoms are symptoms of the degeneration, the so-called "aches and pains of daily life", aggravated by the accident in question.  The prognosis is good.  Regular exercise, sensible approach to work will certainly help.  Occasional symptomatic treatment may be needed.  There is certainly no indication for any surgical intervention.
	...
	The plaintiff should be capable to resume his pre-accident work of a schoolteacher.  It is probably that he may need a day or two to rest every now and then.  There is no medical ground of any work restriction or need of change of job.  His social and sporting activities are unlikely to be affected in any significant way.”

19.  The only physical injuries resulting from the fall appears to be contusions.  The two orthopaedic surgeons appear to be ad idem that the fall aggravated the plaintiff's pre-existing degenerative condition:  I accept that as the basis upon which the plaintiff is entitled to compensation. 

20.  For a period of approximately a year commencing soon after the fall, the plaintiff maintained a detailed journal documenting the nature of the symptoms.  He no longer does so.  The plaintiff testified that he suffered, and continues to suffer, painful symptoms.  To alleviate or at least moderate the symptoms he receives ongoing chiropractic care and consumes analgesics.  He characterises his current complaints, in summary, as being frequent headaches, stiffness and discomfort in his neck and neck/shoulder muscles, right low back pain and, particularly, sciatic pain on the right side radiating down the right leg.  He says that he is unable to pursue his previous pastimes of watersports as well as winter sports, has difficulty in travelling long distances by air and has had an overall general reduction in the quality of his life.

21.  The symptoms are, obviously, subjective and thus notoriously difficult to quantify.  Whilst I accept that he does suffer from a level of discomfort arising from the symptoms which he describes and that these affect to some extent his ability to enjoy the same sort of sports and travelling as previously, I am satisfied that there is an element of exaggeration in his evidence, albeit perhaps inadvertent.  Examples are to be found in his claim in evidence that he had not been able to walk whilst in hospital but had been "flat on his back" when the hospital records show that he was walking, with an aid, the day after admission; his assertion in his witness statement that the back pain is so intense that he requires time off work varying from "... a number of days to one week." which is contradicted by the defendant's records showing that he had only taken a total of six days sick leave after his return to work following upon the fall until June of 2003.  There are other instances.

22.  The helpful summary of the claim contained in the plaintiff's opening lists the heads of damage in a comprehensible format which I propose to follow.

23.  Operation to lower back:  this is a claim based upon the remark by the plaintiff's orthopaedic surgeon that it may assist with the plaintiff's symptoms.  However, other than that passing comment in the report there is, surprisingly, no evidence before me to show that indeed it would be of any benefit to the plaintiff.  The plaintiff has not followed up on this observation by obtaining a proper opinion.  The figure of $75,000 which is claimed seems to have been arrived at by the plaintiff simply by "asking around".  The plaintiff did not indicate in his evidence that it was his intention to have this operation:  if anything, his evidence was to the contrary.  He described the operation as being the last ditch option with no guarantee that it will help: he recognised that there were attendant risks.  In the light of these factors I see no justification for allowing this item.

24.  Special damages:  the plaintiff has claimed $106,266.60.  The defendant has accepted, if it be found liable, an amount of $94,769.60 the two items which it disputes being the amount claimed for two beds, one on a boat and one other.  I regard the claim for the second bed as justifiable: the plaintiff was advised by his chiropractor that this may alleviate symptoms and he has found it to do so.  I do not regard the claim for the bed on the boat as justifiable for reasons which will be apparent when I deal with the head relating to the boat.  Consequently, under this heading I allow $98,269.60.

25.  Claim for BUPA insurance premiums:  Mr Parry, who appeared for the plaintiff, had some difficulty in articulating the basis of this claim.  That is hardly surprising.  It appears to be formulated on some speculative basis that were the plaintiff, who is a Canadian national, to return to Canada at some stage in the future he would be "locked into" maintaining his relationship with BUPA as any other medical insurer would insist on there being an exclusion for a pre-existing condition, namely the complaints from which the plaintiff now suffers as a result of the fall.

26.  Even assuming that to be so - and there is neither any suggestion from the plaintiff that it is his intention to return to Canada nor is there any evidence as to whether the plaintiff would be at a disadvantage in the marketplace when it came to purchasing medical insurance - it ignores the basic fact that the plaintiff was subscribing to private medical insurance with BUPA even prior to the accident.  It simply cannot be that there is any nexus between the fall and the payment of subscriptions so as to found liability on the part of the defendant.  Whether the fall had occurred or not, the plaintiff would need continue to effect payment of the subscriptions, assuming he wished to receive benefits, whether he is resident in Hong Kong, Canada or anywhere else.  I reject this claim.

27.  Future loss of earnings:  no case has been made out for an award under this head.  The plaintiff's own evidence is that he returned to work after the fall and continued with his employment on the same basis as before:  there was, he said, no change at all in his workload which was confirmed by Mr Yim.  He was offered a new contract by the defendant in 2003 when his existing contract expired and although he indicated verbally his intention to accept it he decided against doing so.  He went off and obtained employment at another school without any difficulty at, effectively, the same salary and benefits level as he enjoyed with the defendant.  He continues to be employed there at present.  In the light of this, the issue of just to what extent the plaintiff participated in “extra-curricular” activities and the extent to which he is now unable to do so becomes irrelevant, save insofar as it need be taken into account when assessing P.S.L.A.

28.  There is nothing in either of the medical reports that suggests that the symptoms which he experiences as a result of the aggravation of his pre-existing degenerative disease will prevent him from carrying on his occupation as a teacher until the obligatory retirement age of 60:  indeed, both reports tend to the contrary.  There is nothing in any of the evidence which in any way supports a claim that he may be obliged to retire in advance of that date.

29.  P.S.L.A.:  in his revised statement of damages the plaintiff claimed an amount of $375,000 under this heading but in the opening it is indicated that this is reduced to $250,000.  The defendant has suggested that an amount $150,000 would be adequate.  I have had regard to the various decisions to which my attention has been directed and other awards in similar if not directly comparable circumstances. I apply, without repeating, the principles set out in CHAN Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958.  I adjudge the appropriate compensation to be $180,000.

30.  Loss on sale of boat and car:  the plaintiff claims an amount of $150,000 which he contends is a loss, discounted to take into account depreciation, which he suffered as a result of the sale of a boat and a motor car.  He disposed of the boat, according to his oral testimony, because he found the upkeep too physically demanding; the car, because he suffered one sciatica attack when driving and he considered himself a danger to other road users. 

31.  The real difficulty with this claim, in the circumstances of this matter, is that the plaintiff only acquired both the boat and car in October 2003 some 18 months after the fall and when, if the contents of his daily journal are anything by which to judge, he was fully aware of his claimed physical limitations.  That he then, in the face of that knowledge, elected to go out and buy these two items - in the case of the boat, commissioning it to be built to his own specification intending to live on it - which he sold at a loss over a year later cannot sensibly be said to be a loss arising from the accident for which the defendant is liable.

32.  Future medical expenses:  an amount of $540,000 is claimed being $36,000 a year for 15 years, which is made up as to $2,000 per month in respect of five visits to a chiropractor plus a further $1,000 per month in respect of a visit to a general practitioner to obtain medication together with the costs of that medication.

33.  A claim for some visits to the chiropractor is a justifiable:  the plaintiff consulted a chiropractor on the suggestion of his then general practitioner.  His evidence is that the treatment he has received has been of assistance.  During the period for which chiropractor’s vouchers are available, his visits occurred on average three times per month, not five as claimed for the future.  Moreover, the opinions of both the orthopaedic surgeons are that the symptoms should moderate.  In the circumstances I regard two visits a month at an aggregate cost of $800 as appropriate, or $9,600 per annum. 

34.  The evidence does not justify a claim for a monthly visit to a general practitioner or support the figure of $400 per month claimed for medication.  That there will be some ongoing expenses I do not doubt.  On the evidence that is available to me I assess, as best I am able in circumstances, four visits a year as being appropriate at an aggregate cost of $2,400 per annum plus an overall sum of $3,000 per annum for medication.

35.  The result is an aggregate sum of $15,000 per annum.  A multiplier of 10 is appropriate in this matter.  As a result there will be an award of $150,000.

Summary

36.  There will be judgment for the plaintiff as follows:

1.	Special damages	$98,269.20
2.	PSLA	$180,000.00
3.	Future medicals	$150,000.00
		$428,269.20
	Less 50%	$214,134.60
	Total	$214,134.60
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plus interest on special damages at half judgement rate from 30 April 2002 to date of judgment and on general damages at 2% per annum from date of writ to judgment.

37.  There is also an order nisi for the costs of the plaintiff, as taxed or agreed to be paid by the defendant.  Liberty to restore for argument on costs or any consequential matters on notice given within 14 days of this judgment.