SINGH BAL WINDER v. IWS WASTE MANAGEMENT CO LTD FORMERLY KNOWN AS FOOK WOO WASTE PAPER CO LTD

HCPI 1126/2014

[2018] HKCFI 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1126 OF 2014

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim concerning a slip and fall accident on 16 November 2011. The plaintiff was working as a lorry driver employed by the defendant. Liability has been admitted.

PSLA

2.  The plaintiff claimed that he was pushing a heavy trolley onto his lorry but slipped on some greasy substance, and he fell onto his left lateral gluteal region.

3.  He continued to work (but doing light duties) but the pain persisted despite having taken pain killers, so he attended A&E at United Christian Hospital (“UCH”) on 4 December 2011.

4.  He had been admitted for 10 days, given injection and physiotherapy exercise in bed.  He claimed that his condition did not improve despite this.  He was nevertheless discharged.  The plaintiff attended follow-ups and claimed no improvement despite further physiotherapy.

5.  A MRI was performed on 10 April 2012 which showed “multiple disc desiccation” and “bulging (generalized posterior prolapse) discs at L3‑4, L4‑5”.

6.  An operation was performed on 24 August 2012. Intra-operative finding was “bulging disc L3/4 and L4/5” and the surgical procedure of “left side L3/4 laminotomy and annulotomy and discectomy L3/4; left side L4/5 laminotomy, annulotomy and discectomy L4/5” was performed.

7.  Post-operatively, the plaintiff had another course of physiotherapy between 12 October 2012 and 2 April 2013.

8.  He continued to attend follow-ups in the UCH orthopaedics out-patient clinic until 20 November 2013.  He has not seen any doctor since then.

9.  There are several disputes in this matter.

10.  Firstly, there is the issue of causation: there is no dispute between the orthopaedics experts (Dr. Lam Chi Keung, Johnson, for the plaintiff and Dr. Chun Siu Yeung for the defendant) that the plaintiff has pre-existing back degeneration and that he attended A&E at UCH about 6 weeks before this accident with a history of “spontaneous onset of lower back pain without trauma for 5 days”.

11.  Concerning the current accident, there were indeed inconsistencies in the medical records as to the medical history told by the plaintiff on whether he had trauma.  The plaintiff explained that this could be due to language barriers as he could not speak English.

12.  I would prefer Dr. Lam’s opinion that given all the clinical presentation and the temporal proximity of the accident: “it is likely that Mr. Singh suffered from significant and at least moderate degree of soft tissue injury to his back, probably causing / significantly aggravating disc protrusions in the lower back, causing persistent pain and impairment in the back…rather than developing such back pain coincidentally after the subject accident as a result of natural degeneration.”

13.  Secondly, there is a dispute on the indication of the operation.

14.  Even at the first expert examination undertaken only by Dr. Chun (before the operation), there were inappropriate signs e.g. positive Waddells’ simulation tests, no objective neurological signs to suggest nerve root impingement etc.

15.  I also agree with Dr. Chun’s opinion that, despite the MRI findings, “there was very poor correlation between the MRI findings and the clinical presentation”, meaning that the findings of bulging discs in the MRI did not necessarily mean that the plaintiff was likely be symptomatic.

16.  In the subsequent Joint Medical Report, Dr. Chun also pointed to the “rather bizarre and fluctuating clinical presentation” by the plaintiff both recorded in the medical records and found during the examination by experts and suggested that this might have triggered the “inappropriate proposal for surgery”.

17.  As I understand it, a positive Waddell’s simulation test may only suggest that the patient’s complaint of pain is “unreliable”: it does not indicate that the patient must therefore have no pain, or give information as to how much pain he actually suffers from.  There may be many reasons why a patient subconsciously or consciously exaggerates his pain.

18.  However, I have also considered Dr. Lam’s opinion which has taken into account of the operative findings and he did not raise that the operation was not indicated.

19.  I agree. After all, the treating doctors at UCH, who are orthopaedic specialists themselves, have assessed the plaintiff on many occasions before advising the surgery.  It must be assumed that they were fully aware of the clinical presentations and made that decision nevertheless, and they did proceed with the operation which involved removing parts of the lamina and intervertebral disc at two levels.  I would trust that the specialists at UCH would not have performed these procedures if at any stage they were in doubt of whether these were necessary.

20.  Further, I think it would take a particular skeptical mind to entertain the possibility that the plaintiff might be willing to undergo a rather major operation if he was not seriously concerned about any symptoms.  I think this is unlikely.

21.  Therefore, whilst I would agree with both experts that the plaintiff have exaggerated his symptoms and have displayed inappropriate and bizarre clinical presentations, I would not go as far as finding that the operation was not required.

22.  However, I would find that the plaintiff must have recovered satisfactorily after the operation.  The plaintiff admitted under cross-examination that this was what the hospital doctors had told him.

23.  In court, the plaintiff gave details of his continuous pain (of moderate to severe degree) which disturbed his sleep and not controlled by medications since the accident (i.e. for more than 6 years).

24.  I agree with the experts that these were exaggerated. In particular, Dr. Chun opined that “continuous nonstop pain is inappropriate in the absence of cancer, infection and post-operation status without evidence to suggest significant complication of surgery such as post-surgical infection.”

25.  I would also think that any reasonable patient who has been suffering from years of continuous pain which prevented restful sleep and return to work would be very desperate.  I would expect that he or she would have seen many doctors and exhausted all the numerous means of medical treatment for pain control, and perhaps even have explored unconventional treatments.

26.  In fact, the plaintiff admitted that he had not seen a doctor since November 2013.  When asked as to why, he firstly said that he was afraid to be “cut open” again, and then he said that he could not afford to pay for a translator for all these years.

27.  Such explanations are clearly absurd. The plaintiff’s behaviour instead showed that if he suffered any residual symptoms at all after the operation, these were of such degree that the plaintiff had very little or no concern about.

28.  In court, the plaintiff also mentioned that he had suffered from some urinary symptoms (and had received medical treatments).  However, no such matter was ever advanced in his witness statement, or in the medical recorded disclosed.  And the experts never mentioned such complaints. I find that if such symptoms really exist, they are not related to accident.

29.  The plaintiff also has a history of left ankle fracture with resulting osteoarthritis.  This is also not related to the current accident.

30.  I have referred to Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 and David John Slater v Commissioner of Police [2017] HKEC 1422.

31.  In this case, as in the Chan case, there was pre-existing back degeneration but, in addition, an operation was performed.  Nevertheless, unlike the Chan and Slater cases where the plaintiffs were left with significant permanent impairment, I find that the plaintiff here have very much fully recovered.  Thus the award must fall below the “serious injury” category.

32.  Taking all into account including inflation, I would award HK$320,000 under this head of claim.

PRE‑TRIAL LOSS OF EARNINGS & MPF

33.  In terms of experts’ opinion, Dr. Chun was of the view that “For the alleged injury of 16 November 2011, there is no permanent impairment or loss of earnings capacity resulted”.  He also disputed the causation of the symptoms on 4 December 2011 and subsequent surgery. I have already addressed this above and concluded that I agree with Dr. Lam’s opinion on causation. 

34.  Dr. Lam opined that the plaintiff “should be able to cope with the driving duties as a lorry driver” and be “sensible” in “transportation worker” duties with regards to heavy weights.

35.  In general, the medical experts come to their opinion on working capacity based upon three sources of information: the subjective complaints (medical history) given by the plaintiff, the objective findings by physical examinations and investigations, and the subjective information given by the plaintiff as to the nature of his or her job.

36.  Of course, the experts’ opinion on the objective findings has much weight in court, as the court is not usually in a position to dispute an expert’s physical examination findings or interpretation of an investigation like an X-ray etc.

37.  However, the court should be aware that the subjective information provided by the plaintiff to the experts was not given under oath or tested under cross-examination.  Whilst I would trust an expert to raise any obvious inconsistencies in such information, I think that the court, and not the experts, would be in a better position to determine the truthfulness of such subjective information.  Thus the court might not need to rely on the experts’ opinion on working capacity if much of these was based upon subjective information.

38.  In this case, both experts agree that the plaintiff has exaggerated his symptoms and there was no serious objective neurological deficit on examination (with presence of “inappropriate signs”).  This would of course raise the question that the subjective evidence might be unreliable.  However, the subjective complaints and the relation of such with the nature of the plaintiff’s job can still be tested in court.

39.  In applying a similar “reasonable patient behaviour test” as above, I would expect that a reasonable person should be very desperate under the (claimed) circumstances.  He would have used all reasonable efforts to obtain medical treatment in order that he would be cured, return to a normal life to earn a good living as before.  He would not likely be contented to work (on and off) in a lower paid job.

40.  During the hearing, the plaintiff explained why he could not return to his previous job: e.g. his lower back pain coming on after sitting for a certain amount of time and with a certain posture in the lorry, his burning pain in the back of thigh and calf when depressing the clutch of the lorry etc.  He was able to give rather precise times it took for various pain to start (e.g. 1 to 1.5 hours of sitting for his lower back pain).

41.  When asked how he knew such details, he claimed that he had asked a friend to let him drive a lorry.  However, the plaintiff never mentioned any such in his witness statements.

42.  To obtain such details of how time spent driving, body positioning, driving actions etc. correlated with various pains and symptoms, one assumes the plaintiff must have taken his friend’s lorry for a rather lengthy test drive.  This would have been a determined attempt by the plaintiff to ascertain his work capacity.  As such, he would not likely have failed to mention that in either of his 2 witness statements.  Further, I would question the logic of such a “test drive” at all: if the plaintiff was really that determined to return to work, he could have simply returned to work to “test-drive” his own lorry. I am therefore not convinced that this alleged “test drive” has any truth in it.

43.  Similarly, much has been said about his subsequent jobs as a security guard, and how he could not cope (e.g. could not patrol or climb even a few flights of stairs).  I need not repeat the details here but, again, I am not convinced that the plaintiff had made any serious or reasonable effort at all.

44.  In short, the plaintiff’s case is that the doctors at UCH have utterly failed him: in spite of all the medications, the physiotherapies, occupational therapies and even a rather major operation, he remained in constant and non-stop pain (of moderate to severe degree) since the date of the accident and could not return to work. Yet:

a. he kept returning to UCH (at least 2 attendances at AED, 13 attendances at Orthopaedics Outpatient clinic, not to mention the 2 hospital admissions one after accident and the other for the operation, and numerous attendances for physiotherapies and occupational therapies);

b. he never sought a second opinion from other hospitals or any other doctors in the private or public sector during the two years he was under the care of UCH;

c. when the UCH doctors finally discharged him on 20 November 2013 telling him that he had recovered (despite that, in his case, he clearly had not), he did not seek further medical treatment from any other doctors or hospitals in the private or public sector; and

d. he could not give any convincing explanation as to why he did not seek further medical treatment for this span of more than 5 years since discharge.

45.  The plaintiff clearly did not behave like what one would expect of a reasonable person under such (claimed) circumstances.  All these would only lead to the conclusion that the plaintiff was not suffering from such claimed residual symptoms and disabilities which prevented him from returning to his previous job after his operation: he was simply not interested in returning to his job and made no reasonable effort at all to do so.  Questions must also be raised as to whether his subsequent half-hearted attempt at being a security guard was no more than an act to support an ulterior motive.

46.  I note that the UCH doctors has granted the plaintiff a sick leave period until 18 July 2013 (making a total of 593 days of sick leave).  I will take this as the date that the plaintiff should be able to return to work.  This might be on the generous side given that one would expect the plaintiff to seek second opinion or take more active actions earlier if he did not recover despite treatment for so long after the accident.

47.  As for the plaintiff’s pre-accident earnings, there was no dispute that he was paid HK$121,922.78 as total monthly income in the 12 months before the accident (November 2010 to October 2011).  There was also no dispute that he went back to India for the months of January and February 2011 so he received no income in those two months.

48.  There is a dispute as to the plaintiff’s year end “discretionary bonus” in the sum of HK$21,348.52.  The defendant argued that this was discretionary: the written employment contract stated clearly that there was no year‑end bonus.

49.  However, I find that this must constitute part of the plaintiff’s income in the 12 months preceding the accident, discretionary or otherwise, and therefore should be taken into account.

50.  Taking into account of all the matters, I would adopt the plaintiff’s figure of HK$14,416.67 as his average monthly income.

51.  The plaintiff has raised the issue of wage inflation. Whilst the Census & Statistics Department document produced showed 58.8% of wage inflation of a “driver” from September 2011 to September 2015, no evidence was produced to document any figures showing inflation between 2011 and 2013.  I will take the middle figure and make the assumption that the wage of a driver in September 2013 would be 29.4% higher than in September 2011.

52.  By this calculation, the plaintiff should be earning around HK$18,655.17 per month in 2013.  To simplify the matter, I would assume that on average, he would earn HK$14,416.67 + $18,655.17 / 2 = HK$16,535.92 over the period of sick leave.

53.  Thus the plaintiff’s pre-trial loss of earnings should be HK$16,535.92/30 x 593 x 1.05 = HK$343,203.02

LOSS OF EARNING CAPACITY

54.  As above, I am not convinced that the plaintiff has any symptoms or any residual disabilities that he was concerned about. I see no evidence of any disadvantage of him in the labour market so I would not make any awards under this head of claim.

POST‑TRIAL LOSS OF EARNINGS & MPF

55.  As I find that the plaintiff has recovered after the operation by 18 July 2013 and should be able to return to his previous work, there should be no award under this head of claim.

PRE‑TRIAL EXPENSES

56.  I would allow the plaintiff’s claim of HK$34,642 (being HK$5,642 as UCH medical expenses, HK$2,000 as travel expenses, HK$2,000 as tonic food and HK$25,000 as interpretation fees).

POST-TRIAL EXPENSES

57.  As before, I am not convinced that the plaintiff has any residual symptoms (or at least any to the extent that he was concerned about) so there should no award under this head of claim.

SUMMARY

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

		HK$
	PSLA	320,000
	Pre‑Trial Loss of Earnings	343,203.02
	Loss of Earnings Capacity	0
	Post‑Trial Loss of Earnings	0
	Pre-Trial Expenses	34,642
	Post-Trial Expenses	0
	Sub-total
	Credit to Employees’ Compensation	( 250,000)
	Total	447,845.02 (plus interest)

59.  As for interest, there be 2% per annum on general damages from the date of the Writ to the date of judgment and interest at half judgment rate on special damages from the date of accident to the date of judgment.

60.  There be an order nisi for costs of the action be to the plaintiff to be taxed at District Court scale if not agreed, with plaintiff’s own costs be taxed in accordance with Legal Aid regulations.