LIMBU MAN BAHADUR v. TSANG CHAN FAI AND ANOTHER

HCPI 486/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 486 OF 2003

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J U D G M E N T

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Liability admitted

1. The plaintiff was born in Hong Kong and is married with 3 children. He spoke and understood little English and no Cantonese. He came back to Hong Kong in January 1997 and had been working as a labourer.

2. On 19 April 2001, the plaintiff, then aged 40 1/2, was working as a labourer at a pavement mixing sand and cement using a spade. He was knocked down from behind by a light goods vehicle owned by the 1st defendant and driven by the 2nd defendant. At the trial, both defendants admitted liability.

3. On admission to hospital on the day of his injury, there was a large patch of bruise over his left gluteal region. There was no neurology of his lower limbs. X-ray lumbar spine showed abnormality of his lower back, which probably resulted from the trauma. He could walk but with difficulty using one stick on his discharge on 6 May 2001. He was re-admitted on 24 May 2001 because of persistent back pain. A CT scan of his back showed both recent and old evidence of trauma in the facet joint between 5th lumbar and 1st sacral spine level. He was given a rigid thoraco-lumbar orthosis which was to be temporary and to be worn for 6 weeks or more to protect his back. He was discharged from hospital on 6 June 2001.

4. The appellant was granted sick leave from the date of accident to 21 August 2002.

Joint medical report

5. According to the joint medical report dated 15 January 2004 of Dr Wong Kwok Shing, Patrick, instructed by the plaintiff's solicitors and Dr David H. F. Cheng, instructed by the defendants' solicitors, the plaintiff's general condition was satisfactory. He could sit, stand and walk normally; could walk on tiptoes and heels but complained of increased back pain; and was unable to fully squat down because of back pain. Inspection of the back by the 2 doctors showed normal alignment, no swelling or deformity. Palpation showed mild muscle spasm, tenderness over lower lumbar spine and sacrum, para-spinal muscles as well as left upper buttock.

6. X-ray lumbar spine and pelvis taken on 19 April 2001 (i.e. 5 days after the accident) showed a chronic bony lesion with bone hypertrophy, sclerosis and separation at the left side L5/S1 facet joint/pars inter-articularis region L5 vertebrae. There was a small bone fragment and sclerosis at the right L5/S1 facet joint. The inter-vertbral disc spaces were normal. Both doctors agreed that there was no spondylolisthesis and the majority of the above abnormalities were pre-existing rather than as a result of the accident. X-ray lumbar spine (oblique view) taken on 21 April 2001 showed chronic bony lesion over the left side L5/S1 facet joint. There was no significant abnormality over the right side facet joint. CT scan lumbar spine taken on 28 May 2001 showed chronic intra-articular comminuted fracture left side L5/S1 facet joint. There was oblique fracture right side L5/S1 facet joint with degeneration. There was moderate narrowing of the left L5/S1 inter-vertebral foramen. X-ray lumbar spine/pelvis taken on 15 January 2003 by Dr Wong showed no significant change when compared with the previous x-ray film taken on 19 April 2001. X-ray lumbar spine taken on 15 August 2003 by Dr Cheng showed no significant change when compared with the previous x-ray film taken on 19 April 2001. CT scan pelvis taken on 15 January 2003 by Dr Wong Showed no significant difference when compared with the previous CT scan taken in May 2001 except that the callas mass over the left L5/S1 facet joint appeared slightly more bulky than before. The left side L5/S1 inter-vertebral foramen was not further narrowed.

7. The joint opinion was that the plaintiff had pre-existing bilateral L5/S1 facet joint lesions at the time of the captioned accident. He did not actually sustain any major facet joint fracture during the captioned accident. However, as the left side facet joint fracture appeared quite comminuted in nature on the CT scan and the callus mass was slightly bigger in the CT scan taken in January 2003, some minor left-side facet joint fractures (acute on chronic) could not be excluded.

8. The agreed diagnosis was that the plaintiff sustained low back contusion injury during the accident, resulting in essentially soft tissue injuries with or without minor left L5/S1 facet joint fracture (on top of the pre-existing lesion). There was no neurological deficit as a result. The injury sustained by the plaintiff was consistent with the mechanism of injury sustained by being hit by a lorry from behind.

9. The agreed prognosis was that as the L5/S1 facet joint fractures were pre-existing at the time of the accident and there was only minor change in the time interval covered by the follow-up x-ray/CT scan, rapid deterioration of the condition in the near future was unlikely. However, as the contusion injury sustained in the captioned accident aggravated the pre-existing lesions (with or without creating further minor fractures), some residual low back pain from time to time would be expected to be permanent. The 2 doctors agreed that there was no treatment available to assist further recovery.

10. On the period of sick leave granted, Dr Wong thought that it was adequate and Dr Cheng thought that it was reasonable.

Differences in medical opinion

11. Dr Wong's estimate was that the plaintiff had 6% whole person impairment, reducing by half his earlier estimate of 12% in his report dated 20 January 2003! Dr Cheng maintained his 5% estimate.

12. On the question of return to work, Dr Wong opined that the plaintiff was not fit to resume his pre-accident job as a construction site general labourer and was only fit to perform light to moderate manual work such as machine operator, security guard or car park attendant. Both the pre-existing lesion and the back contusion injury sustained in the accident were said to contribute to his disability to perform heavy manual work. Dr Wong would "estimate 50% contribution from the captioned accident".

13. Dr Cheng advised the plaintiff not to engage in work that required stress and strain on the back, such as frequent and constant bending, on lifting of any heavy objects as a practical consideration in order to minimise deterioration of the condition of spondylolysis. He thought that, although as a result of the back contusion, the plaintiff's back was slightly impaired, it was not to the extent that he could not resume his pre-accident work if he so chose to. Dr Cheng's alternative view was that the plaintiff was suitable for light to moderate work, such as a security guard.

PSLA

14. Mr Clough accepted that the plaintiff's injury were below the serious injury category and submitted that $320,000 was a reasonable assessment.

15. Mr Li contended that the plaintiff's injury would not fall within even the lower end of the "serious injury" category as defined in Lee Ting Lam v Leung Tam Ming [1980] HKLR 657 and contended that the award should be in the range of $150,000 to $200,000.

16. My own observation of the plaintiff in court was that he tried to convey the impression that pain prevented him from sitting normally or even sitting still. This is contradicted by both doctors in their individual and joint reports that the plaintiff could (or did) stand, sit and walk normally. This is further contradicted by the paragraph 11 of the plaintiff's own witness statement where he stated that (emphasis added):-

"... I still suffer from pain on my back. It starts hurting if I walk for about 45 minutes after that I have to stop. Prolonged sitting also hurts my back."

17. In my judgment, the plaintiff was malingering.

18. I have carefully considered counsel's submissions and the cases cited by them to assist me in assessing damages. In my judgment, the appropriate award in this case for PSLA is $200,000.

Pre-trial loss of earnings

19. The parties agreed that the monthly pre-accident earnings and the monthly earnings at trial were $13,526 and $8,913 respectively.

20. Given what is now known about the plaintiff's medical conditions, it is unrealistic to expect the plaintiff to resume his work as a labourer.

21. In answer to a question from Mr Clough in questions arising from my questions, the plaintiff asserted that he started looking for a job about a month after the end of his sick leave period. I reject his assertion. The plaintiff was neither forthcoming nor candid in his testimony. The assertion was devoid of any particulars and is contradicted by paragraph 8 of his witness statement which suggests that he did not start looking for a job until his return from his trip to Nepal from 2 November to 14 December 2002. The version in paragraphs 7 and 8 reads as follows:-

"7. I was in Hospital until 6th May 2001 for the first time. I was again hospitalized on 24th May 2001 until 6th June 2001. I was on sick leave until 21st August 2002.

8. After the completion of sick leave I went to Nepal to see my parents in November 2002. I came back from Nepal in December 2002. I had an episode of severe back pain when the plane landed. I started looking for light jobs but was very difficult to get a job suitable for me. From 20th January 2003 I started working as a security guard with ..."

22. I will assess pre-trial loss of earnings on the footing that he should be able to find a job with a monthly pay of $8,913 by 19 December 2002. This gives him slightly less than 4 months to find a new job after the expiry of the sick leave period. For ease of calculation, I will take 19 July 2004 to be the date of trial.

23. The loss from 19 April 2001 - 18 December 2002 (including MPF) is $13,526 x 1.05 x 20 = $280,046.

24. The loss from 19 December 2002 to 18 July 2004 (including MPF) is ($13,526 - $8,913) x 1.05 x 19 = $92,029.

25. For reasons to be given in the section on post-trial loss of earnings, there is no discount under this item by reason of the plaintiff's existing conditions.

Post-trial loss of earnings

26. The parties are agreed that the guiding principle on the effect of the pre-existing condition on the assessment of damages is set out by Mortimer VP in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 4 HKC 523 at p. 527 as follows:-

"When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff's present state. The third is where this would certainly have occurred at some stage in any event. In the first, the Defendant would be liable for all damage caused. In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

The existing condition of the Plaintiff's spine here, and the nature of his employment, takes this case certainly into the second category and possibly into the third. This type of spinal problem is not unusual, and orthopaedic surgeons are extremely familiar with it and the course that it will take, except in the most unlikely situations. It was almost inevitable, that, assuming he continued his pre-accident employment, the Plaintiff would reach a stage similar to that he is in now, where he suffers a degree of pain and the only work available to him is light work or that of a sedentary nature. The only truly unknown factor is when this would have occurred. The only estimate we have of this is that it would have affected his working ability probable from the mid-50's."

27. In this action, the majority of the abnormalities were pre-existing. The fact that it was asymptomatic by the time of the accident does not mean it would not get worse in future. On the contrary, I consider that the inherent probabilities are such that there is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff' present state. Dr Cheng advised the plaintiff to avoid work which might aggravate the plaintiff's pre-existing conditions. Since it was asymptomatic, it was probable that but for the accident, the plaintiff would have continued working as a labourer and in the course of time aggravate his pre-existing conditions. Dr Wong seemed to recognise this natural progression when he opined in the joint report that:-

"in the long run, the pre-existing L5/S1 facet joint fractures (which were reported to be asymptomatic before) might deteriorate resulting in more low back pain with or without further narrowing of the left side inter-vertebral foramen/lateral canal."

28. It would thus be necessary to assess the degree of the possibility in deciding what reduction is appropriate. The conventional method, according to Mortimer VP is (at p. 529):-

"Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.

When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff's working life is likely to be limited by a pre-existing condition as in this case."

29. I have not reduced pre-trial loss of earnings because I am not satisfied that the risks during the pre-trial years are sufficiently high.

30. Quite apart from the plaintiff's pre-existing conditions, the inherent probabilities are that the plaintiff could not continue working as a labourer for the rest of his working life. In Chan Kam Hoi, Mortimer VP reduced the multiplier from 7 to 5 to account for inherent risks apart from those associated with Chan Kam Hoi's back. After reducing the multiplier, there was a further discount of 45% by reason of the pre-existing conditions. Mortimer VP said that (at p. 530):-

"Twelve years is the appropriate multiplier for a man aged 45 for future loss of earnings to the age of 65. For a man aged between 53 and 54 the appropriate multiplier on the same basis would be about seven. However, for a man in the plaintiff's position, doing heavy work on construction sites, a reduction of the multiplier is appropriate to account for inherent risks apart from those associated with his back. In our judgment, the appropriate multiplier in the circumstances of this case is not less than five.

To rectify the judge's error in principle in his choice of multiplier and to make the assessment of damages for future loss of earnings consistent with his primary finding that the total damages ought to be reduced by 45% to allow for the pre-existing condition, we allow the appeal against the judge's award for future of (sic) loss of earnings and assess them as follows:

Continuing loss of earnings:

$12,270.00 per month ($19,920 - 7,650) x 60 months
= $736,200 less 45% = $404,910"

31. In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, Le Pichon JA adopted the same approach and reduced the multiplier from 12 to 6:-

"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."

32. Taking a global view of the reductions requited on account of the inherent risks involved in working as a labourer and on account of the existing conditions, I consider a multiplier of 5 to be appropriate, a slightly higher than 50% reduction from the agreed multiplier of 11.

33. The post-trial loss of earnings (including MPF) is ($13,526 - $8,913) x 1.05 x 60 = $290,619.

Special damages

34. Special damages of $23,551 are agreed.

Summary

Judgment

37. I order that judgment in the sum of $582,512 be entered for the plaintiff against the defendants, with interest at 2% per annum on $200,000 from 12 May 2003 to the date of judgment and interest at 4% per annum on $280,046, $92,029 and $23,551 from 19 April 2001 to the date of judgment.

38. I make an order nisi under Order 42 rule 5B(6) of the Rules of the High Court, Cap. 4, that the defendants pay the plaintiff costs of the action to be taxed on the scale and in the amount as if the proceedings had been brought in the District Court, with certificate for counsel.