CHAN KAM HOI v. DRAGAGES ET TRAVAUX PUBLICS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 58
(Civil)

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J U D G M E N T

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Mortimer, V.-P.: This is the judgment of the Court.

1. The plaintiff had two accidents, the first on 25 June 1988 and the second on 6 September 1988. He was working as a carpenter for the defendant during the construction of the Conrad Hotel. His work was the construction and dismantling of formwork. It was heavy work. He sustained injury to his back. He had a pre-existing degenerative condition of the spine which until the accidents had been symptomless.

2. Deputy Judge Woolley (the judge) found the defendant liable for those accidents and exonerated the plaintiff from any contributory negligence. The other issues below concerned:

(a) What injuries to the plaintiff's back were caused by the accidents;

(b) Whether his ensuing disability was a consequence of those injuries;

(c) Whether there was any risk that the pre-existing condition of his back would have led to disability in any event and if so, what risk;

(d) Finally, to what damages was he entitled?

3. The judge found:

(a) That the plaintiff had a "quite severe" degenerative condition of the spine before the accidents which produced no symptoms;

(b) The immediate cause of the plaintiff's injuries was the second accident on 6 September 1988;

(c) The accident caused injury which resulted in him being disabled for any work for one year;

(d) Thereafter he was fit for light work only; but

(e) That in the absence of a further accident, the plaintiff would have suffered a deterioration in the condition of his back such as was likely to have forced him to give up his pre-accident occupation by the age of 55.

4. Giving effect to this finding, the judge discounted the damages for pain, suffering and loss of amenity, and special damages for loss of earnings up to the date of trial by 45%. He discounted his award for future loss of earnings by 75% because of the increased risk of supervening disability by that time. He adopted the approach of Fisher J in Jason v Batten (1930) Ltd [1969]1 Lloyd's Rep 283 and Findlay J in Cheung Fat Tim v Wong Siu Ming and anor HCA 5079 of 1991 (unreported) having accepted the submissions of Mr Ramanathan for the defendants.

5. On this basis, the judge awarded $975,133.06 from which was deducted an employee's compensation award of $439,749.68 leaving $535,383.38.

6. The plaintiff, who appears in person, appeals against the assessment by repeating the contentions he advanced below. These are dealt with in detail in the judgment which we set out as a convenient summary:

"Pain, suffering and loss of amenities

The Plaintiff has throughout these proceedings maintained that he is severely disabled by his injuries. He says that he cannot walk without a stick, climb or descend stairs, that he suffers pain, and numbness in his left leg and restriction of movement. As a result he says that he is totally unemployable in any capacity. In addition to these complaints he also claims that he suffers from impotence and incontinence, as a result of pressure by the protruding discs on to the spinal nerve, and psychiatric problems, caused in part by the effect of these on his marital relations with his wife.

The limitation of movement was initially confirmed by Dr. Lee in his reports of 1990 and 1991, where he found in particular severe restriction in straight leg raising, being 30% on the right and 20% on the left, with low back pain. However, the notes from Tang Shiu Kin Hospital on the day of the second accident show that straight leg raising was 'full', and in November the same year, give it as 85% in both legs. In 1994, Dr. Lam recorded 40% in both legs, but was also of the opinion that the Plaintiff was exaggerating, in that if the limitation was as severe as the Plaintiff maintained, he would not be able to even sit in an upright position. Dr. Lee in evidence agreed that it was possible that the Plaintiff was exaggerating the extent of his disability.

This assessment of the Plaintiff' s veracity was confirmed by Mr. Sze Ming Cheong, a private investigator of Take Result Ltd., who produced a video recording in which he followed the Plaintiff on 21st May 1996 as he left a clinic in Capitol Centre, Jardine's Bazaar, Causeway Bay and returned home to Lam Tin Estate. This shows the Plaintiff walking normally and going down stairs into the MTR station, without the assistance of either the handrails or the walking stick he carried throughout but did not use, travelling on the train to Lam Tin and then walking at a normal pace and unassisted to the block where he lives.

The fact that he does not appear to be restricted in movement was further confirmed by my own observation in Court. The Plaintiff frequently carried a stick, but rarely used it except when holding it up in the air to demonstrate the movement of the scaffolding poles in the accident. Indeed, he moved without restriction, and was constantly moving about, standing and sitting without difficulty, and on several occasions had to be warned as to his behaviour when leaping to his feet in an agitated manner because of his disagreement with evidence for, or submissions made on behalf of, the Defendant.

Having said that, it is clear that he does have some injury to his back. Both doctors agree that he cannot return to his pre-accident occupation as he has some degree of limitation of movement, pain and weakness. Both also agree that there is no reason that he cannot return to some lighter occupation, possibly as a caretaker or watchman.

As to his other complaints, the impotence, incontinence, numbness in the legs, tiredness and blurring of vision, there is little evidence that these have any connection with the back injury. The MRI scan shows that the disc protrusions are not large, and they do not exert significant pressure on to the nerves which would be the only possible cause from that area. On the other hand, there is evidence that the Plaintiff has been treated in the past, and still suffers now, from diabetes mellitus. The hospital notes refer to a history of diabetes, and tests in 1993 and 1994 show levels of blood sugar two or three times the average normal level. Dr. Lam says that this shows that he still suffers from diabetes which is not under control, and that this quite commonly causes impotence, dizziness, numbness in the hands and legs, and blurred vision. Dr. Lee agreed that diabetes is a more common cause of impotence, and more likely than the spinal problem. For the purpose of these proceedings, therefore, I will ignore these as being unconnected with the accidents or his present disability.

The last area of disability to be considered is the Plaintiff's psychiatric condition. It is again agreed by the two doctors who gave evidence, Dr. Singer and Dr. Bernard Lau, that the Plaintiff does suffer to some degree from depression. Dr. Singer attributes this to the accident and its consequences, including his marital problems as a result of his impotence. However, as I have found above, the latter has no connection to the accident, and the physical consequences are not as severe as he would have the Court, or Dr. Singer believe.

Dr. Lau puts the degree of depression at a lower level, and says that it is an agitated depression contributed to by his own attitude to his employers, his marital problems, and possibly these proceedings. He is, however, well motivated, alert and attentive, easily frustrated, impatient and worked up, unlike the usual depressive who has reduced energy, drive and motivation.

I am consequently of the view that any psychiatric disability is not of high degree, and little, if any, of that can be attributed to the accidents."

7. The plaintiff resolutely believes that all his disabilities and the problems caused by them are the consequences of the two accidents. He is unable to accept that he had substantial deterioration of his spine before those accidents because at that time he was symptom free. Nevertheless, the judge had the advantage of seeing and hearing all the witnesses and assessing the evidence which was to the contrary. In this Court the plaintiff has not been able to advance any point which cast doubt upon the judge's findings. Further, our observation of the plaintiff's behaviour before this Court tends to support them.

8. On these findings, on what basis was the plaintiff entitled to be compensated?

9. The only difficulty was the effect of the pre-existing condition on the assessment of damages. This is summarised in the judgment:

"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."

The judge accepted that to reflect the presence of the pre-existing condition for which the defendant was not responsible, there should be a discount in the damages. He made his assessment as follows:

"The evidence is that it is certain that the Plaintiff would have suffered a deterioration in his condition in any event, and that it is likely that this would have caused him to give up his pre-accident occupation by the time he was 55. I consider in these circumstances an appropriate discount to be 45%."

The judge proposed a reduction of 45% of the damages which he would otherwise have awarded in the absence of the pre-existing condition for pain, suffering, loss of amenities and for past and future loss of earnings. In detail his awards were:

(1) General damages for pain, suffering and loss of amenities $250,000 reduced by 45% to $137,500.

(2) Special damages for loss of earnings accrued at trial:

(a) Total loss for one year (6 September 1988 to 5 September 1989) $99,996 less 45% leaving $55,997.80.

(b) Partial loss of earnings (5 September 1989 until trial) 90 months at $9,025 per month, total $812,250 less 45% leaving $446,737.50. This reflected the judge's finding that after 5 September 1989 the plaintiff was fit for light work even though he failed to seek any.

(3) For future loss of earnings, from the date of trial (March 1997) the judge made his award in the following terms:

"In view of the evidence of the Plaintiff's pre-existing condition, for which I have allowed a deduction of 45% above, and the likely progress of it, I accept that there is a strong probability that he would by now, or in the near future, have been forced to change his employment. However, I do not think it would be right to reflect this in a cut-off date, as I am dealing with probabilities not certainties, which are best represented by a percentage, as I have done for the general damages and pre-trial loss of earnings.

The Plaintiff was aged 45 at the date of the accidents. An appropriate multiplier would therefore be 12, which, by deducting the 8 l/2 years since then, leaves 3 1/2 years. By applying that to the continuing loss of earnings of $12270.00 a month ($19920 - $7650) one arrives at a figure of $515340.00.

To allow for the vastly increased probability of the increasing effects of the damage to the Plaintiff's spine from his pre-existing condition, I propose to discount that sum by 75%. I accordingly award a sum of $128835.00 under this head. I make no award for loss of earning capacity, which I consider sufficiently allowed for in the percentages I have chosen."

(4) Finally, to these figures were added special damages for other items not seriously challenged of $18,522 and interest for limited periods on the general damages and the special damages only. The reduced award of interest was to reflect the delay in bringing the matter to trial for which the plaintiff was responsible.

The judge's findings and method of assessment

10. The judgment demonstrates the care with which the judge assessed the medical evidence and the plaintiff's evidence. He isolated the disabilities complained of which were not a consequence of the accident. He weighed the plaintiff's exaggeration against the evidence of the doctors and decided what portion of the plaintiff's disability was attributable to the accident and how he should give effect to the difficulties of assessment caused by the pre-existing condition.

11. He was invited by counsel for the defendant to reduce the damages which he would have awarded in the absence of the pre-existing condition, by an appropriate percentage. He urged the judge to reduce the figure by 60%. The judge accepted the method of assessment urged upon him but not the percentage.

The conventional method

12. 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.

13. 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.

14. This is not to say that we regard the judge's approach as wrong. He has the support of some authority and indeed in this appeal there are strong reasons for not disturbing his method. He saw and heard the witnesses, and made an obviously careful assessment before rejecting Mr Ramanathan's submission that 60% was the appropriate deduction and selecting 45%. If the judge's method is not followed, there is a risk that the important advantage the judge had over this Court will be lost.

The judge's assessment of the appropriate deduction

15. However, in making this assessment the Judge intended 45% as the deduction from the total damages which he would have awarded absent the pre-existing condition. This follows from his 45% deduction from the general damages which takes account of the whole period of relevant disability. The point is further demonstrated by the 45% deduction from the total loss of earnings during the first year after the second accident when the risks relating to the pre-existing condition must have been relatively small.

16. In spite of this, when he came to assess future loss of earnings, by which time the plaintiff was 53 years of age, the judge chose to reflect the increased risk by a deduction of 75%. If such a deduction had been made in isolation, it could not be faulted, but as we have pointed out, this is not consistent with the deduction of 45% for the other awards. In our judgment, therefore, the plaintiff is entitled to have an award which is consistent with and gives effect to the judge's original and careful assessment.

Future loss and the appropriate multiplier

17. As conceded by Mr Ramanathan the judge also erred in principle when he took 3 1/2 years as the appropriate multiplier for future loss when the plaintiff was 53 years of age at trial. The judge took 12 years as the appropriate multiplier at the time of the accident when the plaintiff was aged 45. Three and half years of the 12 years was unexpired at trial and this was the erroneous basis for the judge's multiplier.

18. 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.

19. 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 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

20. We note in passing a relevant passage in the judgment where the judge says:

"I accept that there is a strong probability that he would by now, or in the near future, have been forced to change his employment. However, I do not think it would be right to reflect this in a cut-off date, as I am dealing with probabilities not certainties, which are best represented by a percentage, as I have done for the general damages and pre-trial loss of earnings."

21. The figure for future loss cannot be considered in isolation as it is only part of the overall award from which the deduction is made. Taken in isolation the award under this head would be too high just as other awards could be said to be too low.

Conclusion

22. We allow the appeal accordingly and for future loss of earnings, we award $404,910. Also, Mr Ramanathan invites to our attention to an error in the amount of the employee's compensation received by the plaintiff. This was not $439,749.68 but $425,449.68.

23. In summary, therefore, the damages are as follows:

Pain, suffering and loss of amenities	$ 137,500.00
Interest thereon @ 2% from 20.5.91-6.9.94	9,052.00
Pre-trial loss of earnings	501,735.30
Other special damages	18,522.00
Interest @ 5.75% from 6.9.88 for 6 years	179,488.76
Loss of future earnings	404,910.00
Total	$1,251,208.06 =============

24. From this figure, the employee's compensation proceedings figure of $425,449.68 must be deducted, leaving a sum of $825,758.38.

The result

25. For these reasons, we allow the appeal by substituting for the award of $535,383.38 judgment for $825,758.38. Further, we order nisi that the costs of the appeal should be to the plaintiff to be taxed if not agreed.