VIPIN KAURA v. WAH KWONG SHIPPING AGENCY CO LTD

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 530 OF 1999

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JUDGMENT

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1. The applicant in this matter, Mr Vipin Kaura, is a 53 year old Indian national. After school he pursued a marine apprenticeship in India for four years and from 1968 he started what was to be a long and successful career in the engineering branch of the Merchant Navy. He rose through the ranks rapidly and in 1979 was promoted to Chief Engineer. Since 1985, save for a two year period when he returned to India to work in a managerial position in a factory, he has been employed by the respondents as Chief Engineer on large bulk carriers of the type shown in the photograph (Exhibit P2).

2. The events which have given rise to this application relate to his period of service from May to November 1997 on a Liberian-registered bulk carrier, the Brazilian Venture.

3. I have not found this matter, which turns entirely on questions of medical causation, an easy one to decide, with each side's medical expert, both of whom are highly experienced and respected specialists in neurology, taking diametrically opposed views which they have steadfastly adhered to. Before I come to their evidence which will determine the outcome of the application, I will set out the factual background to the matter which I can do fairly shortly. I propose to set out the facts as I find them. Where there is a dispute on the evidence, I will attempt to provide reasons for the version that I accept. The applicant's pre-existing medical condition

4. Under the terms of his engagement with the respondents, the applicant was required to have a medical examination every two years. The last of those was on 6 April 1996 by Dr James Hunt of New Orleans. This was a simple physical examination and an eye test, as a result of which the applicant was pronounced fit for service.

5. In February 1997 when the applicant was in India, he noticed a stiffness in the back of his neck and shoulders and he consulted an orthopaedic specialist. He was put on traction and physiotherapy which provided no relief, but the pain resolved spontaneously after some time.

6. In March 1997, he was required to attend a strenuous five day fire-fighting course in India, during which he was required to move briskly and climb ladders and stairs whilst carrying heavy weights. He got through the course successfully without any adverse symptoms.

7. Then in April 1997 while still ashore in India, the symptoms of neck stiffness and pain returned. The doctors then took x-rays of the cervical spine and the report provided showed degenerative changes at C4/5 (fourth and fifth cervical) and C6/7 (sixth and seventh cervical) levels. The C4/5 and C6/7 disc spaces showed narrowing with a loss of normal cervical lordotic curvature (see page B2 of Bundle A). Fortunately on this occasion he became symptom-free within a few days, having been prescribed analgesics. It was in this pain-free condition that the applicant went to sea aboard the Brazilian Venture in early May 1997.

The sea voyage

8. As Chief Engineer, the applicant was responsible for the proper functioning of all the machinery on the ship. He joined it at Kobe, Japan. The tour of service would require the vessel to go round the world with no fixed schedule, going to ports as and where cargo was solicited by the respondents, The ship came to Hong Kong from Japan and then on to Newcastle, New South Wales, on to Chile and then through the Magellan Straits at the tip of South America, round to San Lorenzo in Argentina, north to a port in Brazil, on to Singapore, China, back to Indonesia and then to Japan, where the applicant, by now disabled and in pain, left the ship and returned home to India for treatment.

9. Crucial to the applicant's case is the state of the weather and the seas on the passage from Chile to Argentina. July is mid-winter in the southern oceans and, as everybody knows, the storms, big waves and swells in the vicinity of Cape Horn and the Magellan Strait are amongst the worst that seafarers will encounter anywhere in the world.

10. I have before me the relevant parts of the Deck Log which records the state of the sea, wind speed and the weather conditions (see Bundle B, page 81, which has relevant passages from the Deck Log). There can be no doubt that for a number of days during the passage from Chile to Argentina, there were gale force winds up to Force 9 on the Beaufort Scale and heavy seas, causing this large ship to pitch and roll heavily at times. I was also shown a video taken on board another similar ship, showing the type of weather encountered during this passage. I am left in no doubt that it was uncomfortable for the crew on board.

11. The applicant has described it in his witness statement as follows (page 9, Bundle A):

"The passage from Chile to Argentina had been very rough with the ship pitching, rolling and Pounding. The propeller would come out of the sea frequently and the engine would then go into over-speed, as suddenly there was no load on the propeller. Because of the sea conditions we had to reduce speed. This was one of the roughest passages I have ever experienced with the ship pitching and rolling and we were all being thrown about. When moving along a corridor, we would bump from side to said and there would be problems when going up and downstairs."

12. As to what he says is the most probable cause of his present physical state, he has this to say:

"After passing through the Magellan Strait, I that I had fallen when descending a ladder inside the engine room. It was the ladder just before the control room and was between one deck. The length of the ladder was about 10 steps and the height about 10 feet. There was an intermediate platform and I fell whilst descending below the lower part. I had gone down about two steps facing forwards when my hand slipped as the ship was pitching and rolling and I fell back against the steps and I bumped down about two steps before managing to re-grab the rails and stop myself falling further. In this, my body was thrown and jerked backwards and though I did not bang my head or neck against (sic), my bottom hit the steps twice."

13. In his oral evidence, he has placed some further emphasis on the backward movement of his head and neck as he bumped down the two steps. To all these matters, I shall have to give more detailed attention presently when I consider the medical evidence.

14. Once he recovered himself and his composure, he felt no adverse effects and continued with his duties. At the time he thought nothing of it, just one of the hazards that mariners have to watch out for and put up with in heavy seas. There were no adverse symptoms and he did not consider it necessary to report it to the captain or seek onboard medical attention. There were no witnesses to this incident and for the reasons that I have just given, no record of it.

15. The respondents, perfectly properly, make no admissions as to the occurrence that I have just described and they of course deny that if it did occur, it is causative of the applicant's present physical state.

16. For my part, I accept the applicant's evidence as to the sort of fall that he sustained in the course of the ship's passage through heavy seas. He impressed me as a decent man and an honest witness who did not seek to exaggerate his case, nor his present symptoms.

The onset of the symptoms

17. The applicant first started to get problems about the time when the ship berthed at San Lorenzo on 4 August. At page 15 of Bundle A, he says that when they anchored at the Argentine port on 23 July, there was nothing wrong with him. The ship berthed on 4 August and he then felt that there was something, to use his words, "not quite right." His walking was affected. He noticed this going down into the engine room and later that evening when he went ashore.

18. These symptoms then passed, but on 31 August he remembers when listening to radio reports of the death of the Princess of Wales, he started to have shock-like sensations along the outer parts of both his arms when he coughed. This was in the course of the long crossing from Brazil to Singapore. He says that by the time that the ship arrived at Singapore, the left leg was quite bad. At Singapore the ship refuelled at anchorage and as the Chief Engineer, the applicant was required to oversee the bunkering operation which required him to go over the side of the vessel on the rope ladder down onto the fuel lighter. He says, and I accept, that he did this with difficulty and in pain.

19. A new master took command at Singapore and the applicant obtained his agreement to see a doctor at the next port which was Xiamen, China. There the doctor applied accupressure and massage, which gave some help and he was able to walk more easily. After Xiamen when at sea, the symptoms returned and he started to have numbness in his hands. The ship called into another port in China and at a remote port in Indonesia, but the applicant was not confident about the quality of medical attention that was likely to be on offer, and so he waited until the ship called into Hirohata, Japan, when he was seen by a doctor there on 29 October 1997.

20. The doctor diagnosed Buerger's Disease, which as will become apparent in a moment was a misdiagnosis. He saw another doctor in Japan at the next port of call on 4 November 1997. A series of X-rays were taken and as a result he was advised that he needed an MRI scan and as his condition was serious, would probably require hospitalisation.

21. The applicant left the ship on 7 November 1997 and returned home to India.

The medical treatment in India

22. He saw a neurologist on 10 November. An MRI scan was carried out and he was advised to undergo surgery of the neck to relieve the problem. The applicant then sought a second opinion from another neurologist who confirmed the need for surgery. An operation was then performed by a Dr Madan, a Neurosurgeon, An 21 November. It only gave temporary relief.

23. The applicant continued to drag his left leg with additional problems to his left arm. As his condition was getting worse, the applicant went to the United States for further advice and treatment.

The operation in the United States

24. Through a family connection, he attended the Beth Israel Hospital at Boston, part of Harvard University Medical School, where he was treated by Dr Weller who performed a highly complex and risky operation called a Corpectomy on 2 March 1998. This entails the removal of the vertebra and an arthrodesis from levels C3 to C7, that is to say a fusion of the joints with anterior screw-plate fixation and a fibular bone graft. That briefest of descriptions of the procedure is sufficient to explain the degree of difficulty and skill required to perform such an operation.

25. The applicant says that as a result, he had a good improvement in his condition. Physiotherapy followed and the present situation is that the applicant is having no further treatment or medication. He now performs certain exercises which he has been advised to do.

His present disabilities

26. I take these from his witness statement at page A12:

"(a)	Limp in left leg with clonus (tremors) while going down the stairs or driving. I cannot walk for long, say 1 kilometre or half an hour as the lower back left side starts to pain very badly. When under stress the leg more or less freezes and has to be dragged from the hip;
(b)	The left hand clenching and unclenching is somewhat retarded and cramps when strained even a little. There are occasional twitching of the forefinger and thumb;
(c)	Both my shoulders, especially the left, are quite stiff and the range of movement is restricted;
(d)	My neck is till at all times and it is difficult to read or write for too long. I have always tried to help my sons doing their studies and in preparing for examinations. Before my accident, I had delayed resuming work to help my eldest son complete his exams for class 10. My eldest son completed class 12 in March 1999 and I find I could not help him as before as I could not sit for long and after a while my eyes would start to burn and close and I could not read. My youngest son is now preparing to complete his class 10 but I expect I cannot help him as much as I would like to have done:
(e)	The right side of my body, especially the trunk and leg, is very sensitive and even a blunt object will feel like a pin prick; and
(f)	There is difficulty in swallowing since the operations. This has improved a little but it is still difficult to swallow pills. I have to get the pills powdered in order to take them."

27. As a result of this, the applicant has not worked since November 1997 and he does not believe that he will ever be able to return to work at sea. A Chief Engineer on board a large merchant ship is required to be fit, to move about freely and to get among the machinery that he is responsible for. He only feels able to return to sedentary work.

28. From that review, I now turn to the medical issues in the case which will determine the outcome of the application.

The medical experts

29. Dr Woo for the applicant and Mr Shroff, FRCS for the respondents are agreed that prior to the start of the applicant's tour of duty on the Brazilian Venture in May 1997, he had a pre-existing degenerative spondylotic disease. It is perfectly clear that the plain X-rays taken in April 1997 showed the presence of degenerative changes at C4/5 and C6/7.

30. Dr Woo at page 8 of his report says that it is conceivable that he might even have begun to have a disc prolapse at that stage.

31. Mr Shroff considers this quite unremarkable. He says that cervical spondylosis, a degenerative arthritic process, is a normal phenomenon of ageing. The condition is universal and radiological findings of cervical spondylosis are present in 75 per cent of people aged over 50 (see page 6 of his main report).

32. From that common ground, the two experts go their separate ways as to the causes of the very rapid deterioration of the applicant's condition from 4 August 1998 when he went ashore at San Lorenzo until he returned to India in November when he was advised that there was no alternative to surgery.

33. The way Dr Woo characterises this is by saying that when he started his tour of duty, the applicant was already predisposed to this occurring and that the fall on the stairs and/or the general battering that the ship took during the heavy weather, which caused the crew to have to hold on to the side of the companionways as they made their way through the ship, would have been sufficient to trigger his deterioration. Dr Woo has helpfully discussed this in his report, starting at page 8 to page 12, with references to leading medical texts. He has described a cervical myelopathy, a disorder of the spinal cord, from August 1997 leading to an asymmetric spastic paraparesis in his lower extremities. The MR scan showed multi-level degenerative spondylotic disease in the cervical spine with a severe central disc prolapse at C5/6 level, causing a severe degree of spinal cord compression. His central conclusions are conveniently reproduced in paragraphs 3 to 7 of his report which bear repetition here:

I should observe here that the applicant has said that as his condition progressed in the course of the journey to Japan, he had to focus his mind to try and find a cause for this and the way he put it was that the only thing that he could think of was the fall on the steps and the general movement of the ship during the rough weather.

34. Dr Woo was closely cross-examined by Mr Ashok Sakhrani for the respondents, seeking to advance Mr Shroff's proposition that this was an ongoing degenerative process and that the events during the journey had no bearing on the final result. Dr Woo remained unmoved by this question.

35. Based on Dr Woo's evidence, Mr Hingorani for the applicant, advances the case on the basis that but for the events of the journey, there would have been no precipitation of this condition and that consequently the applicant has a good claim.

36. Mr Shroff is completely resistant to any notion that the fall on the steps or the general movement of the ship in bad weather could possibly have had any affect on the applicant's cervical spine.

37. Having carefully considered the medical picture presented to him, which he has reviewed in the first six pages of his report of 28 December 1999, Mr Shroff has presented his conclusions at pages 6 and 7 of his report as follows:

38. Mr Shroff develops this further in a report dated 23 August 2000 at pages 109 and 110 of Bundle A, the principle features being the following:

"Natural History of Cervical Spondylosis:

39. He has been strongly cross-examined by Mr Hingorani who challenged his conclusions. Consideration was given to the nature of the fall on the steps and how that fall could have affected his deterioration.

40. Mr Shroff seriously questions the nature and severity of the fall on the steps as being a catalyst for the events that have followed. He draws attention to the fact that the buttocks would have absorbed most of the shock and this would in turn have gone to the lumbar spine rather than higher up the spinal cord, and certainly not to the neck. He also refuses to accept the proposition that a fall of this nature would have produced sufficient, or any hyper-extension of the neck, to precipitate the damage that subsequently appeared.

41. Mr Hingorani has also pointed out the backward movement of the fall. Mr Shroff does not accept that this would have been sufficient, even making every allowance for pre-existing degeneration and the fact that the force required to cause this damage would not need to be particularly great. Mr Shroff is even less impressed by the view that the motion of the ship as it fought its way through rough seas. Would also have been enough.

42. By way of underlining his evidence, Mr Shroff relies on the fact that by the end of August the applicant, although in pain. Was able to go over the side of the ship and go up and down the rope ladder to oversee the bunkering operation. He says that nobody with a disc prolapse could subject the spine to that sort of activity.

43. By way of completing my review of the medical evidence I should draw attention to the report of Dr Weller from Boston. dated 17 March 1998, (volume B. page 166,167) who says:

"It is my opinion that Mr Kaura sustained the aforementioned cervical disc herniation while he was employed at sea."

44. That opinion, whilst it may be correct, and perhaps at fir blush helpful to the applicant's case, does not in my view, and cannot, provide any proximate cause for the herniation, or point to any incident or series of events which resulted in the herniation.

45. What Dr Weller's reports do provide are a very clear exposition of the problems that have beset the applicant and understanding of how the comples operation was performed. They go no further in assisting me in resolving the issue of medical causation, which I have previously identified.

My conclusions

46. Mr Sakhrani starts his submissions by relying on section 5(2) (c) of the Employees' Compensation Ordinance, which is in these terms:

"No compensation shall by payable under this ordinance for any incapacity or death resulting from personal injury if the employee has at any time represented to the employer that he was not suffering, or had not previously suffered, from that or a similar injury, knowing that the representation was false."

47. Mr Sakhrani relies on the degenerative changes revealed by the plain X-rays taken in India in April 1997. Whilst I understand why Mr Sakhrani should take this point, I am persuaded that Mr Hingorani is correct in his reply, that the applicant simply made no representation to this effect. H had passed his medical in 1996 in New Orleans, he considered himself fit, and by virtue of turning up for work I do not consider that the applicant was making a representation of the sort contemplated in the sub-section. Something more overt or explicit would be required to invoke the exclusion created by the sub-section.

48. The next element of the respondent's answer is that the applicant has failed to demonstrate, as is required of him under section 5(1) of the Ordinance, that he has sustained personal injury by accident, arising out of and in the course of his employment, which would give rise to the right to be compensated by the respondent.

49. This, in terms of the facts of this case, is to describe the central issue, which is whether it has been proved on the balance of probabilities that either the fall on the steps and/or the movement of the vessel in the rough seas, precipitated or accelerated the onset of the symptoms described by the applicant, and in the medical reports. In this regard the but for test proposed by Mr Hingorani is apposite.

50. One cannot help but have enormous sympathy for the applicant, who has been struck down while still at the height of his powers by this debilitating condition, but I am firmly of the view that he has failed to carry the required burden. I am left in no doubt that Mr Fali Shroff's analysis of the cause and progress of the applicant's symptoms is the correct one, for the reasons that he has given.

51. To go the other way would be to embark on a course of benign speculation favourable to the applicant, which, on the evidence, is simply not open to me. I am left unpersuaded that the fall by him, and the movement of the ship. Could have been causative of the applicant's admittedly rapid decline from 4 August.

52. I am conscious of the fact that his pre-existing condition would have made him more readily susceptible to damage than a person with a healthy cervical spine, but it seems to me that Dr Woo's analysis cannot survive the reasoning put forward by Mr Shroff. I regret therefore that I conclude that Mr Kaura would have found himself in this situation irrespective of the sea passage, which has had no bearing on the medical outcome.

53. Accordingly, and with regret, this application must stand dismissed. Nevertheless, in the event that his matter should go to appeal. I propose to indicate the amount of compensation that I would have awarded the applicant, had the application succeeded. This aspect was in fact not canvassed at great length in the oral evidence, nor indeed in counsels' speeches.

54. Dr Woo has assessed the loss of earning capacity at 35 per cent. I take that percentage as correct, it also being the most favourable to the applicant. The other features of compensation do not appear to be in dispute and so my assessment would have been in the amount of $732,035.19, particularised as follows.

55. The details that I have adopted are, firstly, the date of the accident, July 1997; the applicant's date of birth, 27 June 1947; his age at the date of the accident, 50; his earnings at the time US$5,52 0.41, that translating to HK$42,727.97; period of sick leave, 8 November 1997 to 7 May 1998, a period of six months; the percentage loss for the purpose of section 9 of the ordinance, 35 per cent. Section 9 claim, and let me explain that under this heading the base figure applicable would be 72 months' earnings or the applicable statutory maximum, $1,296,000, which ever is less, therefore the statutory maximum is used and that's multiplied by 35 per cent producing $453,600. Section 10, sick leave pay, $42,727.97 multiplied by six months multiplied by four fifths, $205,094.26, giving a total of $658,694.26 less sick leave payments made for the period of 8 November 97 to 7 May 198, $58,050; net compensation $600,644.26. to that I apply interest at 6.25 per cent per annum for 3.5 years, producing a figure of $131,390.93, and that in turn produces a total of $732,035.19.

56. Costs to the Respondent.

57. Legal Aid tax of the Applicant's costs.