RAI SHIVA KRISHNA v. WOO LOONG SCAFFOLDING WORKS CO LTD

HCPI 556/2015

[2018] HKCFI 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 556 OF 2015

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim arising out of an accident at work. The plaintiff was a warehouse labourer employed by the defendant. Liability has been admitted and this is an assessment of damages.

PSLA

2.  The plaintiff, aged 52 at the time, fell from a height of about 2 metres on 24 May 2013.  He attended Accident and Emergency Department (“A&E”) at Pok Oi Hospital (“POH”) for mainly right shoulder, upper and lower limb pain.  He was then admitted to Tuen Mun Hospital (“TMH”) Orthopaedics and Traumatology Department (“O&T”) for 1 week.

3.  He was re-admitted to TMH O&T on 25 June 2013 for exacerbation of right shoulder pain and MRI showed a full thickness tear of the supraspinatus tendon of the right shoulder.

4.  A repair operation (right shoulder arthroscopy and cuff repair with acromioplasty) was performed on 19 September 2013.  There was apparently good post-operative recovery and a full course of physiotherapy and occupational therapy was completed by 8 April 2014.

THE PLAINTIFF’S EVIDENCE

5.  However, the plaintiff complained that he continued to suffer “severe right shoulder pain up to 9/10 over anterior aspect”, “intermittent attacks about 2-3 times a day especially at nighttime” which disturbed his sleep, with each pain episode lasting for 30 minutes or so. He also complained of various right arm pain, numbness and weaknesses etc..

6.  In court, the plaintiff demonstrated a very restricted range of movement and weakness of his shoulder: he could only raise his right arm straight ahead up to about 90 degrees, and he would need his left hand to help his right arm to raise further with pain.

7.  This condition clearly contrasted with his physiotherapy report which stated that on 4 April 2014 (the final findings), the active range of motion of right shoulder flexion and abduction were 160 degrees and 140 degrees respectively.  The muscle power was “4 out of 5 in Oxford scale”.

8.  It was also noted during the joint examination by the orthopaedics experts on 18 June 2014, just 2 months later, that the right shoulder flexion was 95 degrees (complained of pain) and abduction was 80 degrees (complained of pain).

9.  When questioned about this “sudden deterioration” by the defendant’s counsel, Ms. Vanessa Kwok, the plaintiff said that he had initial improvement after the operation and was “very happy”, but then, it had “gone worst”, “like before” with “pain all over the arm” and “no strength”, and that all this deterioration happened in the two months between the end of the physiotherapy course and the joint expert examination.

10.  After the completion of physiotherapy, the medical records showed that the plaintiff continued to complain of shoulder pain and attended both the TMH O&T clinic and the Yuen Long GOPC.  Much the same few types of pain-killers were prescribed (paracetamol, tramadol, gabapentin, diclofenac etc.) during this time.

11.  However, the plaintiff claimed that he had told the TMH doctor about this “sudden deterioration” but they said, “there was nothing they could do” and asked him to attend Yuen Long GOPC instead.

12.  There was no record of such in the TMH O&T records.  Instead, there were records like “frequent attending GOPD for SL (sick leave)”.

13.  Further, if the plaintiff’s case was that the TMH could not help him so he attended Yuen Long GOPD, the Yuen Long GOPD records dated 21 May and 28 May 2014 both showed that the plaintiff had “stock of painkiller” and no prescription was given on either of these consultations.  In particular, it was recorded on 21 May 2014 that the plaintiff had “come for extension of SL (sick leave)”.

14.  When asked, the plaintiff simply said that he “felt” that he was prescribed medications on these occasions.

15.  Ms. Kwok then referred to the TMH records dated 8 April 2014 which showed that the plaintiff was already prescribed with 13 weeks of painkillers.  As such, on 21 May 2014, the plaintiff should still have the remaining stock of painkillers.

16.  The plaintiff then suggested that he had overdosed himself.  When asked further, he said he only overdosed himself on one type of painkillers (but could not tell which one).

17.  When asked whether he had told the doctor that he had overdosed himself, the plaintiff said he “felt” that he had returned to TMH to tell the doctor of the overdose.

18.  Of course, there was no TMH medical records of the plaintiff attending during this period, let alone complaining of having an overdose of painkillers.  It would also be highly unlikely that any doctor would continue to prescribe stocks of painkillers knowing that a patient had been overdosing himself.

19.  When asked about this, the plaintiff then said he had forgotten.  He also claimed he could not remember whether he still had a stock of the remaining painkillers when attending Yuen Long GOPD.  In any case, all these were new information which did not appear in his witness statement.

20.  The plaintiff claimed that he had continued to take these painkillers and perform home exercises as advised by the physiotherapists since then.

21.  When asked why he would continue to do so despite the apparent lack of success in such treatment in curing him, the plaintiff then claimed that he had requested the TMH doctor to do an x-ray and this was refused.  He also claimed that he had asked the doctor to do a second operation in November 2016 but this was also refused.  Of course, all these information was new: the plaintiff never stated such in his witness statement.  There were also no medical records of such.

22.  The plaintiff’s evidence was not credible.  He was clearly inventing and changing his story at will, and when “cornered”, he would simply say that he had forgotten.

23.  To put it another way, the plaintiff was claiming to be suffering from very severe shoulder pain (9 out of a scale of 10: with 0 being no pain and 10 being the most severe pain possible, like “childbirth”) for 2-3 episodes of 30 minutes each episode every day since around June 2014.  In other words, if the plaintiff was to be believed, he had been having an on-going “childbirth” pain lasting 1 to 1.5 hours each day for years, with no end in sight.

24.  A patient with such symptoms would have been extremely desperate, and would not likely attend the same clinics regularly taking stocks (some prescriptions were for over 100 days) of essentially the same medications when none of such helped to cure this devastating pain after all these years.

25.  Indeed, I expect that a patient who genuinely suffered from such persisting agony would not wait for months (or wait until the end of each sick leave periods prescribed by the doctors) before returning to see the doctor.  If the medications did not stop such agony promptly, I would think that the patient might return the very next day (even without any appointment), perhaps even screaming and shouting at the doctor, telling the doctor that his drugs were no good and demanding stronger medications, further investigations, referral to see another doctor, or the patient might go straight to see another doctor for help.

26.  There were, indeed, many stronger pain-relief regimes available to doctors, including referral to “pain clinics” (as Dr. Wong agreed).  And, if the treating doctor attempted to repeat similar medications, I would think that a reasonable patient would simply refuse.  

27.  Further, if the plaintiff was recovering and was “very happy” after the operation, and then suddenly, within 2 months, this devastating pain returned, he would have been extremely concerned as this would clearly show that the operation had failed.  He would have told the treating doctors immediately and would not be continually accepting only pain-killers.  Of course, there was no records of the plaintiff telling the doctor of any “sudden deterioration” all through. Instead, the medical records showed a persistent “subjective” complaint of pain despite various objective evidence of recovery.

THE EXPERTS’ EVIDENCE

28.  Essentially, the orthopaedics experts disagree on 2 aspects: the issue of causation and whether there was a “significant re-tear of the tendon” after the operation.

29.  I will deal with the “re-tear” issue first. This was raised in an MRI report dated 22 September 2015.  The MRI was done on 21 September 2015 which was 2 years after the tendon repair operation.  If there was indeed a re-tear, this would in some ways, support the plaintiff’s claim of “deterioration” and “persistent pain”.

30.  Dr. Wong Lok Yan Ian, expert for the plaintiff (“Dr. Wong”) agreed with the radiologist report that “the latest MRI also showed re-tear of the repaired supraspinatus tendon, which in turned led to further disuse atrophy of the supraspinatus muscle, could be accountable for the plaintiff’s persistent symptoms”.

31.  However, during the hearing, I noted that an earlier MRI scan (done pre-operatively on 29 June 2013) had not been made available for the experts.  As the experts might gleam useful information by comparing the two MRI scans, I have ordered the production of the scan and for the case to be adjourned.

32.  Dr. Wong was recalled when the hearing recommenced.  By comparing the 2013 and 2015 MRI, he demonstrated to the court that there were similar amounts of “fat infiltration” in the supraspinatus muscle.  On both occasions, this was a Grade 1 (“streak of fat”) in the Goutallier classification (which ranks from Grade 0: normal, to Grade 4: more fat than muscle).

33.  However, when I asked Dr. Wong how this grading might correlate with actual function of the shoulder, Dr. Wong admitted that this was a radiological grading only and it would be difficult to correlate with “subjective” complaint of pain and muscle power.

34.  Dr. Tio, on the other hand, was able to demonstrate to the court the Warner classification of rotator cuff atrophy by comparing the two MRI scans.

35.  He informed the court how the radiologist reporting on the 2015 scan had used the wrong view (looking downwards) to assess rotator cuff atrophy. When using the Warner classification, one needs to be able to visualize the “Y” shape cut of the scapula (looking sideways) and observes whether the muscle bulk of the supraspinatus projected above a straight line along the limbs of the “Y” (see bundle 2, p.314-120, Image of Warner classification of rotator cuff atrophy).   

36.  When this proper view was obtained (see bundle 2, p.314-119, Image of MRI scan of the shoulder taken on 21 September 2015), Dr. Tio demonstrated that there was no muscle atrophy in the scan of 2015.  As the Warner classification measures the muscle bulk of the rotator cuff, it would clearly correlate with whether the plaintiff was using this muscle: if there was a “significant re-tear” of the tendon and that there was severe pain, this muscle would lose its muscle bulk due to disuse.

37.  Similarly, Dr. Tio was able to demonstrate to the court that there was muscle atrophy in the 2013 scan, with the proper view, the muscle bulk was clearly below the straight line across the limbs of the “Y”. 

38.  Dr. Tio also showed that in the 2015 scan, the tendon was still in continuality which contrasted with the 2013 scan which showed a gap, and explained that the “abnormal signal” reported by the radiologist could be “post-operative change” and not “re-tear”.

39.  Of course, both experts agreed that there was “no deltoid or girdle wasting”, and “no muscle wasting and no signs of CRPS of right upper limb” during the joint examination.  These should be further “objective” signs to support that there could not have been any significant problem with the right shoulder.  These signs were entirely inconsistent with the degree of weakness that the plaintiff complained about and demonstrated to the court during the hearing.

40.  As such, the court accepts the opinion of Dr. Tio that the plaintiff could not have “any significant re-tear of the supraspinatus tendon”. 

41.  Further, the plaintiff claimed in court that he was informed of the result of the 2015 MRI report by his interpreter friend. Yet, the medical records showed that he only notified his treating doctor on 14 November 2016 that he has taken some MRI “recently” (see medical record in Bundle 3, p.541,consultation summary of TMH O&T dated 14 November 2016) and was advised by the doctor to “bring in recent films”.

42.  One has to bear in mind that the plaintiff claimed to be suffering from 1 hour or more of “childbirth-like” pain every day since June 2014.  After suffering for 15 months, he finally got an investigation into this pain (and other problems like weaknesses etc.) in September 2015.  Having been informed that the radiologist thought that there was a re-tear, he did not inform any doctor for another 14 months until November 2016.  And even then, it would appear that he just mentioned that he had MRI scan taken “recently” and did not bother to tell the doctor what the finding was.

43.  There is simply no logic to such behaviour.  The only inference one can draw is that the plaintiff has no pain or other symptoms, or that what little pain or symptoms he may actually suffer from are of little concern to him.  The plaintiff must have known all along that he has recovered well and, as such, he was not concerned at all about the findings of the 2015 MRI scan.

44.  Such inference is, of course, entirely consistent with Dr. Tio’s opinion that the plaintiff has in fact recovered well after the operation and there could not have been any significant re-tear of the tendon.

45.  As for the issue of causation, Dr. Wong was of the view that the plaintiff’s “right shoulder supraspinatus tendon full thickness tear was solely attributable to the subject accident” whilst Dr. Tio opined that “it could well be that the rotator cuff had some pre-existing right shoulder degeneration or minor tear before the injury but subsequently subject to a complete tear after the alleged accident…it is estimated that the accident could have advanced his right shoulder symptoms and signs by a period of 5 years.”

46.  Both experts gave rather technical explanations to support their opinion. There were discussions on whether this injury might cause rupture of an entirely healthy tendon, whether the plaintiff’s bony spur on the acromion might “cause” the tendon tear, whether various signs on the x-rays and MRI scans showed pre-existing and continual deterioration etc.

47.  There is no need to repeat the detailed technical aspects of these discussions.  Suffice to say that after considering all the evidence, I agree with the view of Dr. Wong that although a certain type of bony spur is statistically more associated with tendon rupture, there is still controversy on the issue of causation amongst the experts in the field, that is, whether a bony spur would cause the rupture or the other way round.

48.  I also agree with Dr. Wong that there is no evidence to suggest that the plaintiff has any symptoms in his shoulder prior to the accident, so even if he has some degree of degeneration, it should not be significant.

OTHER INJURIES

49.  The plaintiff also claimed that he had suffered head injury and loss of consciousness.  On reviewing the medical records and the plaintiff’s evidence, I am of the view that any head injury would have been not significant and it was not likely that he has suffered a loss of consciousness.

50.  The plaintiff also complained of various symptoms like radiating pain, diffuse pain, numbness, hypersensitivity, “trembling over all nerves” etc.  The experts did not find any medical explanation for such complaints and I find that these were either unrelated to the injury or part of the “symptoms and signs exaggeration” suggested by Dr. Tio.

51.  In conclusion, I find that the plaintiff suffered from a full thickness tear of the supraspinatus tendon of the right shoulder caused by the accident on 24 May 2013.  He underwent various investigations and underwent a repair operation on 19 September 2013.  Post-operatively, the plaintiff recovered well and, by 4 April 2014 after he had finished the course of physiotherapy, his “right shoulder function should be largely preserved” and any “residual pain, weakness and stiffness should be considered to be mild only”.

52.  I have been provided with various cases involving shoulder injuries.  I agree with the plaintiff that the injuries in Yu Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company & Others HCPI 293/2002 were more serious.  The case of Kong Koon Man Harriman v PBIL Advertising Ltd & Anor HCPI 517/2012 involved an additional injury of a (conservatively treated) vertebrae fracture and 2 shoulder operations.  The PSLA award was HK$350,000.  In Li Kwok Lo v Café de Coral Holdings Limited HCPI 804/2001, there was tendonitis (not tear) of the supraspinatus muscle (and reflex sympathetic dystrophy) which required arthroscopic surgery.  The PSLA award was HK$360,000.  The defendant provided an impinged shoulder tendon case which also required arthroscopic surgery (Chung Chi Wing v Secretary for Justice HCPI 436/1997).  The PSLA award was HK$350,000.

53.  It can be argued that the Kong case involved more serious injuries compared to the Li case (and the current case) but was paradoxically awarded slightly less.  The same award was given in the older Chung case which was clearly a less serious injury compared to the current case.  

54.  Nevertheless, I am in no doubt that the awards in these 3 precedents were within the “ballpark” of what the courts would award for various degrees of shoulder tendon injuries which required arthroscopic treatment.  I would therefore give an award of HK$360,000 under this head of claim.

PRE‑TRIAL LOSS OF EARNINGS

55.  It is trite that the court is not bound by sick leave certificates issued by treating doctors in determining when the plaintiff can return to work at a certain time (Choy Wai Chung v Chun Wo Construction & Engineering Company Limited CACV 172/2004).

56.  Given that I accept Dr. Tio’s opinion that there could not be “any significant re-tear” and given my observations regarding the plaintiff’s “pain behavior” as stated above, I accept Dr. Tio’s opinion that “the duration of sick leave should be limited to April 2014” and that “it is very likely that he should be able to resume his original duty as a general laborer with mild reduction in efficiency such as pain and weakness”.

57.  Indeed, I find Dr. Tio’s opinion of “mild reduction in efficiency” generous given that I find no convincing evidence to support that the plaintiff has any pain and weakness, or any such to extent that he has any concern about.

58.  In passing, I do not accept the plaintiff’s evidence about how he was so weak that he could not perform certain aspects of work as a security guard such as reaching up to insert a security key or manually opening a gate (on wheels).  Even if he has right shoulder weakness caused by a significant re-tear of the supraspinatus tendon (which I did not find), there are many ways that one can insert a security key (using the left hand, for example) or open a gate (which would involve a pushing or pulling motion using triceps and biceps and would not involve the supraspinatus tendon in any case according to Dr. Tio).

59.  There was a dispute regarding the plaintiff’s ability in English language: there were medical records showing that he attended alone when he appeared to be able to communicate without problems, and there were also medical records which showed that the doctor has called for an interpreter.  Given that I find that the plaintiff was capable of returning to his previous employment by 15 April 2014, the plaintiff’s language skill is not relevant.

60.  I would accept the evidence from the defendant’s witness Ms. Luk Man Na that the plaintiff’s average salary over the 12 months before the accident was HK$15,861.95.

61.  The length of sick leave should be from 23 May 2013 to 15 April 2014 or 10 months and 23 days.  Thus the pre-trial loss of earnings (including loss of MPF) should be HK$15,861.95 x 10.76 x 1.05 = HK$179,208.31

LOSS OF EARNING CAPACITY

62.  As above, I find no convincing evidence that the plaintiff had any pain or weakness that he was concerned about.  But taking Dr. Tio generous assumption that there was “mild reduction in efficiency” in working capacity, I would allow HK$15,861.95 x 6 = HK$95,171.70 as compensation for any disadvantage in the labour market that the plaintiff might possibly have.

FUTURE LOSS OF EARNINGS

63.  Given that I find that the plaintiff could return to work on 15 April 2014, I will not allow any claim under this head.

SPECIAL DAMAGES

64.  The special damages are agreed by both parties at HK$13,345.00.

SUMMARY

65.  In summary, I would award the following :-

		HK$
	PSLA	360,000.00
	Pre‑Trial Loss of Earnings	179,208.31
	Loss of Earnings Capacity	95,171.70
	Future Loss of Earnings	0
	Special Damages	13,345.00
	Sub-total	647,725.01
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	Credit to Employees’ Compensation	(700,000)
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	Total	0
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66.  As there is no award after deduction of the Employee’s Compensation, no interest is awarded.

67.  There would be an order nisi for the costs of the action, including the costs of the assessment be to the defendant to be taxed if not agreed, with certificate to counsel.  The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.