ALI SHOUKAT v. HANG SENG BANK LTD

HCPI 3/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.3 OF 2003

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J U D G M E N T

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1. This is a claim by the plaintiff for damages based on negligence of the defendant being his employers, in respect of a sprained back injury sustained by the plaintiff in the course of his employment with the defendant on 10 April 2000.

2. Liability was conceded on behalf of the defendant by its counsel at the start of the hearing on the first day of the trial. Accordingly, judgment on liability was duly ordered in favour of the plaintiff and I proceeded to deal with the assessment of damages.

3. It is the plaintiff's case that he was employed by the defendant as a security guard. About two years before the accident happened, he and other security guards like him were given the additional duty of unloading cash boxes from the bank's security van onto trolleys for delivery to the bank's premises. On the day of the accident (10 April 2000), the plaintiff was asked to unload cash boxes from a van onto one such trolley. As he was off-loading one such cash box, which it was later found to be some 85 kg in weight, he sprained his back.

Injuries and Treatment

4. Immediately after the accident, the plaintiff experienced severe pain to his lower back. He consulted the company doctor of the defendant, Dr Wong Kwok Kin, on the same day and was diagnosed to be suffering from a back sprain. He was treated with medication. An X-ray taken on 12 April revealed loss of lordosis. Although the pain continued, the plaintiff returned to his work as a security guard with the defendant on 21 April 2000.

5. On 10 July 2000, the plaintiff could not endure the pain any more and again consulted the company doctor. He was again given medication and physiotherapy and advised to wear a corset. He had severe pain occasionally. By mid-September, his low back pain worsened again. After receiving treatment the pain improved somewhat but he still could not tolerate standing for more than an hour.

6. An MRI scan was performed on 17 October but it showed no evidence of any prolepses disc or other significant lesion.

7. The plaintiff was referred to the Orthopaedics and Traumatology Department of Queen Elizabeth Hospital for management on 13 November 2000 and attended the Orthopaedic clinic regularly for his back pain.

8. He attended the specialist clinic of QEH on 1 February 2001 for his back pain. Examination there showed tenderness over the low back but there was no focal neurological sign.

9. He consulted the company doctor of the defendant again on 4 May 2001 for severe back pain which came on the day before. Again the pain improved with medication and physiotherapy but he could not tolerate prolonged standing.

10. All this time no surgical intervention was offered because no positive objective finding was made in relation to his low back pain. However the pain prevented the plaintiff from returning to his work.

11. He was seen by Dr Patrick Wong, the plaintiff's orthopaedic expert, in February 2002. At the time of that examination, the plaintiff's complaint was low back pain almost daily at the lumbrosacral area. There is no distal radiation and no lower limb neurological disturbance.

12. Functionally, he can sit for 30 minutes and stand for 15 minutes, climb up to the second floor and walk on level ground for 20 minutes. He needs a walking stick to aid walking especially when climbing stairs. At times the back pain wakes him up from his sleep and he needs to apply local ointment or use a hot pad to relief the pain.

13. After examining the plaintiff, Dr Patrick Wong came to the opinion that the plaintiff had sustained a sprained back injury without any identifiable bony lesion or disc/nerve lesion visible on the MRI scan.

14. The prognosis was that despite the subjective complaint of low back pain, the doctors were unable to identify much significant abnormal objective physical findings. X-rays and MRI showed very little apart from the loss of lordosis of the lumbar spine, indicating muscle spasm in action.

15. Dr Patrick Wong assessed the sprained back injury to be 5% impairment of the whole person.

16. The plaintiff was re-examined by Dr Patrick Wong in May 2003. At the time of that examination, the complaint was that the low back pain was more on the left side with leg pain sometimes radiating along the lateral aspect of the left thigh to the knee level, but he did not have right leg pain anymore. The low back pain was not present all the time and was relieved by medication and ointment. The other complaints present on the earlier occasion when examined by Dr Patrick Wong in February 2002 were still there.

17. On this occasion, Dr Patrick Wong opined that the ranges of movement of the lumbar spine had significantly improved compared with his last examination 15 months ago. However he also came to the view that there was no further orthopaedic treatment that would assist the further recovery of the plaintiff and that the plaintiff did not require any on-going treatment except for oral analgesic and ointment. His assessment of the impairment of the plaintiff remained at 5%.

18. He was further of the view that there was no objective evidence that the plaintiff cannot return to his previous employment as a security guard generally but that he was not fit to lift objects of 55 kg.

19. The orthopaedic expert instructed by the defendant, Dr David Cheng, examined the plaintiff in March 2002. Dr Cheng also diagnosed the plaintiff to have suffered a sprained back resulting from the accident on 10 April 2000. He also found the plaintiff to have persistent subjective back pain and occasional leg pain. Examination showed some muscle spasm but no neurological deficit. He was of the view that there might be some residual pain but not to the level complained of by the plaintiff.

20. Because of the muscle spasm and some stiffness, Dr Cheng also made an assessment of 5% impairment of the whole person.

21. On the basis that the plaintiff's job as a security guard requires the plaintiff to stand for a while and then patrol the bank hall with a break of 10 to 15 minutes every hour, Dr Cheng says that the plaintiff can return to his job as a security guard without any need to change jobs on medical grounds.

22. Both experts, Dr Patrick Wong and Dr Cheng were of the view that a period of sick leave of about 12 months would be reasonable in the light of the plaintiff's complaints.

23. At the hearing of this matter before me, I gave leave to the plaintiff to call as a witness, Dr Ho Chin Hung from the Department of Orthopaedic and Traumatology of Queen Elizabeth Hospital. Dr Ho was one of the treating doctors of the plaintiff.

24. His evidence was that he was the first doctor to start treating and managing the plaintiff for his low back pain when the plaintiff was referred to his department.

25. After three months when the pain still persisted, it was classified as a case of chronic back pain. He then involved a physiotherapist to assist in managing the plaintiff. Still later an occupational therapist was also involved in the team. A work hardening programme for nine months was laid down to manage the plaintiff. The aim of the team was to manage the plaintiff to a level of work tolerance as to meet the requirements of the plaintiff's job demands as a security guard.

26. In a report prepared by the Occupational Therapy Department of this team dated 30 June 2003, which was 38.5 months post-injury, it was stated that the plaintiff did not meet the job demand of bilateral lifting of 50 lbs occasionally and the single-handed carrying of 30 lbs occasionally. The plaintiff could only manage bilateral lifting of 20 lbs from knee to shoulder level with pain on exertion and the single-handed carrying of 19 lbs.

27. Secondly, the plaintiff only marginally met the requirement to stand for one and a half hours continuously. He could only tolerate to stand for 15 minutes.

28. Thirdly, the report states that the plaintiff could not meet the job demand for walking one and a half hours to patrol the bank area. His walking tolerance was only for five minutes before he needed to rest to recover or to lean on furniture or fixing.

29. The conclusion arrived at in this report was that the plaintiff could not match the job demands with a high degree of limitation. The recommendation contained in the report states that the plaintiff's post will be kept for him to return to and the plaintiff is keen to resume work. However in view of the progress, further training will aim at weaning off the walking stick and to improve the plaintiff's tolerance for walking and standing in six weeks. If static in process, then consider discharge.

30. By 18 November 2003, Dr Ho Chin Hung stated in a letter of the same date that the back injury of the plaintiff sustained when he was on duty on 10 April 2000 has resulted in chronic back pain and poor endurance despite prolong training. In the same letter, Dr Ho further suggests the early retirement of the plaintiff and offered a further eight weeks of sick leave to facilitate arrangement of retirement.

31. In evidence Dr Ho said this suggestion of early retirement was in relation to the plaintiff's inability to meet up to the requirement of his job demand as a security guard as demonstrated by the work hardening programme referred to above.

Pain Suffering and Loss of Amenities

32. I accept that the one common feature which is present in all the medical experts opinion is that there is some residual pain still felt by the plaintiff from his back injury. Both experts have upon their examination found loss of lordosis in the lumbrosacral area where the pain exist and also some muscle spasm.

33. Both experts also assess the impairment of the plaintiff to be 5% of the whole person.

34. When he was last examined by Dr Patrick Wong in May 2003, it was clear that the residual pain was still there.

35. Sick leave was granted to the plaintiff up to September 2003 as it appears on the documentary evidence.

36. My difficulty arises not from any difference in opinion between the experts instructed by the parties but from the seemingly difference of opinion given by both experts on the one hand and the opinion given on the other hand by Dr Ho Chin Hung and his team consisting of a physiotherapist as well as an occupational therapist.

37. The two experts instructed by the plaintiff and the defendant respectively seem to be agreed that the plaintiff can return to his work of a security guard with the qualification by Dr Wong that he cannot lift heavy weight of 55 kg.

38. On the other hand, the opinion from Dr Ho Chin Hung and from the progress report dated 30 June 2003 paint the picture that the plaintiff cannot even stand for more than 15 minutes nor walk for more than five minutes. On that basis Dr Ho Chin Hung went as far as to suggest in his letter in November 2003 that early retirement should be considered for the plaintiff.

39. However, when I look at the second report of Dr Patrick Wong dated 24 May 2003, under the heading "D. Present Complaint", it is stated that the plaintiff can walk for 20 minutes after which he has low back pain and has to rest by sitting down. The plaintiff is unable to stand more than 25 minutes even with some support helping him. He can walk slowly and he carries a stick while walking just in case he loses his balance. He cannot carry weight more than 10 kg.

40. Considering this is what is recorded by Dr Patrick Wong, the plaintiff's own expert, as being the plaintiff's complaints in May 2003, such complaints show the plaintiff in a much better light than what is contained in the progress report dated 30 June 2003 by the Occupational Therapy Department.

41. Looking at all the circumstances in this case, I accept that there is some residual pain in the low back of the plaintiff which may still bother him from time to time. However it is not so debilitating as to affect his activities of daily living. I also accept that he cannot carry or lift heavy weight over 10 kg which is about 20 lbs or so and probably so for a while yet. I do not, however, accept that he cannot walk on his own or needs a walking stick to do so.

42. I accept the opinion given by the two medical experts, Dr Wong and Dr Cheng, that the plaintiff will be able to return to work, even as a security guard, but with the qualification that he may not, for some time to come, be able to lift weights beyond 20 lbs which would aggravate his back pain.

43. On this basis, and in view of the fact that the plaintiff had been experiencing the residual pain at his low back region for almost four years now, the award for pain suffering and loss of amenities would be assessed at $250,000.00。

Loss of Earnings (pre-trial)

44. There is no dispute that the average monthly earnings of the plaintiff calculated from the 12 months prior to his accident comes to $10,016.80 per month which is inclusive of his annual bonus.

45. The main issue for determination is when the plaintiff could and should have returned to some form of employment be it the pre-accident employment or some alternative employment involving lighter duties.

46. The plaintiff's own evidence is that at the moment, he is still unfit for any type of employment because of the back pain. To this extent, he is supported by the evidence of Dr Ho Chi Chun of QEH.

47. On the other hand, both experts are of the view that the plaintiff is fit to return to work as a security guard, perhaps with the qualification that he may not be able to carry heavy weight as before the accident.

48. Where the opinions given by both experts for the respective parties differ with the view expressed by Dr Ho Chin Hung, I prefer the opinions of the experts.

49. It is not entirely clear as to the period of sick leave granted to the plaintiff. Counsel's opening suggests that the plaintiff was granted sick leave up to 10 April 2003. On the other hand, the Revised Statement of Damages pleads that sick leave granted to the plaintiff would expire on 3 July 2003. However, the documentary evidence before me shows that sick leave was in fact granted to the plaintiff up to 22 September 2003.

50. I am however disposed to accept the opinion expressed by both experts engaged by the respective parties in this case namely, Dr Patrick Wong for the plaintiff and Dr David Cheng for the defendant. Both of them take the view that sick leave of about 12 months would be appropriate in the light of the injuries suffered by the plaintiff. I accept that view expressed by them.

51. The evidence from the witness called by the defendant, Mr Yeung Wai Man, is that the plaintiff is still in the employ of the defendant bank and that he is still on MPF. That seemingly is the position at least on paper. In actual fact, the evidence from the plaintiff is that he could not return to work because of his disability.

52. There is no evidence before me that if the plaintiff had returned to his work as a security guard with the defendant and with the qualification as stated by Dr Wong that he cannot carry more than 20 lbs weight, whether the defendant would continue to employ him as a security guard by assigning him to lighter duties, and if so, whether they would reduce his pre-accident salary in those circumstances or whether they would terminate his services with them altogether.

53. At present, it does not appear that the defendant has terminated the plaintiff's employment with them and it also does not appear that the plaintiff has resigned from that employment. Moreover, it does not appear that the plaintiff has returned to active duty with the defendant even though the documentary evidence suggests that his sick leave has run out on 22 September 2003. On paper therefore, at the very least, he is still employed by the defendant. This deadlock seem to have arisen, judging from the plaintiff's evidence, because the defendant wanted the plaintiff to resign of his own accord from his employment with them but that the plaintiff decided against resigning.

54. Given this scenario, there is no evidence that the plaintiff has been paid his salary since the accident. Indeed, the claim by the plaintiff for full loss of earnings pre-trial as contained in the Revised Statement of Damages would suggest that the plaintiff has not been paid any salary for the pre-trial period. In the same vein, the defendant's Answer to the Revised Statement of Damages does not indicate that the plaintiff has been paid his salary during the period that he stayed away from work (save for the agreed sum of $147,444.95 received by the plaintiff in Employees Compensation proceedings for which credit will have to be given).

55. In the light of the difficulties stated above, and in particular the deadlock which has arisen between the plaintiff and the defendant as to whether the plaintiff should resign from his post with the defendant, I have come to the conclusion that it would be unreal to expect the plaintiff to continue in any form in his employment with the defendant. That is a situation which I think the plaintiff is only too well aware of himself when he says in his evidence that he intends to seek some other employment involving lighter duties when he feels up to it.

56. Given the circumstances as stated above, I shall approach this matter on the basis that the plaintiff will have to seek some other form of employment with lighter duties rather than continue his employment with the defendant.

57. However, in view of the economic climate prevailing at the time, it would not be unreasonable to allow for a further six months after the appropriate period of his sick leave for the plaintiff to seek and obtain alternative employment. It follows therefore that the plaintiff will have suffered full loss of earnings for the 18 months after the accident.

58. Thereafter the plaintiff would only suffer partial loss of earnings which would be the difference between his pre-accident earnings and that which he could obtain from such alternative employment.

59. Once again there is an absence of any evidence as to the plaintiff's possible earning from alternative employment. The only indication as to such amount appears in the Revised Statement of Damages which state that the plaintiff can only expect to earn $6,730.00 in his present condition. There is no indication as to how that figure is arrived at.

60. Doing the best I can in all the circumstances of this case, and bearing in mind that the plaintiff is of low education and has been working as a security guard at all times in Hong Kong as well as his pre-accident earnings, it would not be unreasonable to expect the plaintiff to suffer partial loss of earnings in the region of some $3,000.00 given the kind of disability as stated by both experts in their report.

61. I therefore assess the plaintiff's pre-trial loss of earnings as follows:

62. Full loss of earnings for 18 months at $10,016.80 per month comes to $180,302.40. Partial loss of earnings for the following 32 months at $3,000.00 per month comes to $96,000.00. The total loss of pre-trial earnings therefore comes to $276,302.40.

63. Loss of MPF for the pre-trial period (calculated from December 2000) is 5% of ($100,168 + $96,000) = $9,808.40.

Future Loss of Earnings

64. I will use the same multiplicand of $3,000.00.

65. For the multiplier, I will take into account the evidence from Mr Yeung that the plaintiff, being an expatriate recruit, his retirement age is 50. At present the plaintiff is 40 years old.

66. I further take into account the medical evidence from the experts that the plaintiff's condition is more or less static and that it will not improve greatly with further treatment.

67. Given the circumstances, and also taking into account accelerated receipt of the damages for future loss of earnings, I shall use a multiplier of six.

68. This gives an assessment of $216,000.00 as the future loss of earnings.

69. Future loss of MPF comes to 5% of that sum which is $10,800.00

Special Damages

70. The special damages claimed for travelling and medical expenses has been agreed at $3,968.00 and that will be allowed.

Interests

71. Interests for general damages for pain suffering and loss of amenities will be awarded at 2% p.a. from the date of the Writ.

72. Interests for special damages and pre-trial loss of earnings will be awarded at 4% p.a. (being half judgment rate) from the date of the accident.

Credit for ECC payment received

73. Credit will be given for the sum of $147,444.95 being the amount of ECC payment already received by the plaintiff.

Summary

Conclusion

75. There will be judgment to the plaintiff in the amount of $675,514.05.

Costs

76. In view of the amount recovered by the plaintiff, which is below the jurisdiction of the District Court after its increase in jurisdiction to $1 million effective 1 December 2003, this matter could and should have been transferred to the District Court after that date. Accordingly, there will be a costs order nisi that the defendant do pay the plaintiff its costs of this action, to be taxed on the High Court scale if not agreed in respect of all costs incurred up to 1 December 2003; but for those costs incurred after 1 December 2003, to be taxed on the District Court scale if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.