TAMANG RABICHANDRA v. VSL SWC (a firm) AND ANOTHER

HCPI 659/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 659 OF 2007

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Dates of Hearing : 4 and 5 September 2008

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JUDGMENT

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Introduction

1. The plaintiff is Nepalese.  He was born in Hong Kong on 9 November 1977.  His family moved back to Nepal a year or two after his birth.  The plaintiff returned to Hong Kong when he was 18.  He worked in the construction industry doing various manual jobs : rigger, ceiling panel fitter and scaffolder.

2. On 16 August 2004, the plaintiff commenced work for the 1^st defendant at a construction site at Tai Lam Kok in the New Territories as a rigger.  The 2^nd defendant was the main contractor.

3. On 17 August 2004 at about 11:00 a.m. the plaintiff was assisting in the lifting of an “A” frame iron beam by crane.  During this process he was hit on the lower back by a beam.  This caused damage to his lower back and the surrounding area.  The defendants have admitted liability for the damage caused by this injury.  There is a dispute about the extent of the damage caused and the compensation to which the plaintiff is entitled.

4. The plaintiff complains that since the accident he has experienced pain when walking, particularly upstairs, and that he cannot sit or stand for long periods without pain.  The discomfort is sufficiently great, says the plaintiff, that sometimes he wakes at night.  As a consequence he is unable to work in the construction industry carrying out the kind of heavy manual jobs he did in the past.  In practice he says he can no longer work, because the type of jobs available to him are limited to things such as manual work or acting as a security guard and these he cannot do.

5. The defendants argue that the plaintiff is exaggerating his condition.  They also argue that such pain and restrictions on movement as the plaintiff does experience is a consequence at least in part of a degenerative condition to his lower back, namely, L5 spondylolysis.  These factors, the defendants say, should be taken into account when assessing damages.  I shall consider both in turn.

The evidence

6. The only witness who gave evidence at the trial was the plaintiff.  Mr C.K. Wong who appeared for the defendants was only able to advance the defendants’ case that the plaintiff was exaggerating his condition by cross-examination.  During cross-examination Mr C.K. Wong explored with the plaintiff the following matters :

(1)     After his initial treatment in mid-August 2004 the plaintiff returned to work in September and continued to attend the site until February 2005.

(2)     It was not until February 2005 that the plaintiff returned to hospital complaining of problems with his back.

(3)     The consultation summaries of the plaintiff’s visits to hospital in 2005 record the plaintiff as having a normal range of movement when doing straight leg raises, no radiation and no neurological symptoms.  They do record pain precipitated by back movement, aggravated by bending forward, but that notwithstanding this the plaintiff could almost touch his toes in June 2005 although the range of movement declined as the year progressed.

(4)     On 28 June 2006, a joint medical examination took place conducted by Dr Lam Kwong Chin (instructed on behalf of the plaintiff) and Dr Lam Yan Kit (instructed on behalf of the defendants).  The examination revealed no wasting of either leg.

7. Mr C.K. Wong suggested to the plaintiff as he questioned him about these matters that he began in 2005 to exaggerate his symptoms to increase the compensation he would receive.  Mr C.K. Wong suggested to the plaintiff that if he had been in as much discomfort as he now suggests he would have returned to seek medical treatment before February 2005.

8. The plaintiff’s response to this was that when he returned to work initially he was allowed to return home when he wanted to and that as the months passed he was only given very light work to do.  He says he had massages and applied Chinese medicine and hoped his condition got better.  He explained that his salary payment record him as receiving overtime and other allowances because, as he understood the matter, this was normal practice not because he had been working overtime or doing demanding work.

9. The difficulty for the defendants is that they had not called any evidence to gainsay what the plaintiff says.  I cannot see anything inherently implausible in what the plaintiff says, which amounts to this :

“I was a fit 28-year-old.  I assumed my condition would get better.  I put up with the discomfort for 6 months.  During this period I was paid about what I would have earned if I had not been injured.  By February 2005 my condition was not improving so I went back to hospital.”

I accept the plaintiff’s evidence in this regard. 

10. I do, however, think that it is relevant that the plaintiff was only given two weeks’ sick leave and was asked to return to work at the end of this period.  It suggests that the injury did not appear to be particularly serious immediately after it occurred, which was a time when one would have expected the symptoms to have been at their most acute.

11. On 23 February 2005, the plaintiff returned to the Accident and Emergency Department of Tuen Mun Hospital and did so on another 12 occasions until 29 April 2005.  On a number of occasions the plaintiff attended the Orthopeadic Department.  There are consultation summaries in respect of consultations on 10 May, 15 June, 13 July, 11 August, 9 September, 22 September, 17 November, 22 December 2005 and 2 February 2006.  These record the plaintiff complaining of increasing discomfort and gradual, but not marked, restricted movement during physical examinations.  They also record x-rays showing the plaintiff having L5 spondylolysis and mild decrease in L4/5 disc space.  The x-rays did not reveal any abnormality in the left leg, pelvis or left knee (in which the plaintiff was experiencing discomfort).  According to the medical records the plaintiff was told that the L5 spondylolysis was a developmental condition on 10 May 2005; his first visit to the Orthopaedic Department.  The various doctors from the Orthopaedic Team who saw the plaintiff were uncertain about the association between the injury on 17 August 2004 and the plaintiff’s complaints about discomfort to his back, left hip and left knee, although they were clear that the L5 spondylolysis was unrelated to the injury.  The plaintiff was told this on 22 September 2005 by Dr Ng Fu Yuen.  The plaintiff was granted sick leave for various periods from 23 February 2005 to 19 June 2006.

12. As I have already noted there was a joint examination of the plaintiff on 28 June 2006.  As a result of this examination Dr Lam Kwong Chin (instructed on behalf of the plaintiff) compiled a report dated 4 October 2006.  In paragraph 8 of the report Dr K.C. Lam says this :

“I agree with Dr. Pun’s view [Orthopaedic Department’s report dated 30 December 2005] that his L5 spondylolysis was a developmental condition.  The subject contusion had probably precipitated the condition and caused pain.”

This paragraph read in conjunction with paragraph 13 of the letter clearly indicate that Dr K.C. Lam thought the pain experienced by the plaintiff (and the parties agree that the problem with the plaintiff’s left knee is not relevant) was due to L5 spondylolysis.

13. Dr K.C. Lam suggested that an MRI scan be carried out and one was carried out on 6 March 2007.  Having been given a copy of the radiologist’s report, Dr K.C. Lam prepared a further report dated 13 March 2007.  In paragraphs 3 to 6 he says this :

“3.  In the MRI scan, Mr. Tamang and a straight spine with loss of normal lordosis (normal curvature of back), while the lordosis was maintained in his previous x-ray dated 15/9/06 (see photos).  This shows that Mr. Tamang’s back condition is fluctuating, and he is now having more back pain with muscle spasm.

4.      The loss of signal intensity at L3/4, L4/5 and L5/S1 are features of dehydration/degeneration.  Such changes should be of long standing.  However, as the MRI scan was taken almost 3 years after the accident, one could not tell whether they were pre-existing or not.

5.      The L5/S1 disc has circumferential disc bulge but no definite protrusion.  Such bulge has no clinical significance.

6.      To sum up, the MRI scan does not show any clinically significant pathology, and could not explain Mr. Tamang’s [symptoms].”

14. I read this report as recording two conclusions.  First, that there has been degeneration of a number of joints, although it is not clear whether the degeneration had commenced before the accident.  However, read in conjunction with paragraph 8 of his report dated 4 October 2006, I take Dr K.C. Lam to be of the view that the state of the joint at the time of the scan was a consequence of a developmental condition although one probably precipitated by the accident.  Secondly, the degeneration seen on the scan does not explain the discomfort and lack of mobility of which the plaintiff complains.

15. Dr Lam Yan Kit on the instructions of the defendants also attended the examination of the plaintiff on 28 June 2006 and received a copy of the radiologist’s report prepared after the MRI scan.  Dr Y.K. Lam prepared a report dated 28 October 2006.  His conclusions are that the L5 spondylolysis is unrelated to the accident on 17 August 2004.  He also says that the pain and lack of mobility of which the plaintiff complains is inconsistent with the diagnosis of the injury.  Dr Y.K. Lam notes that the plaintiff did not have to be admitted to hospital and that, as I have already noted, he resumed work two weeks after the accident.  Dr Y.K. Lam’s view is that the plaintiff is exaggerating his symptoms.  He also expresses the view in paragraph 4 of his report that the developmental lessions at L5 level would not be expected to affect significantly the outcome of treatment of the back injury.

16. Having reviewed the radiologist’s report Dr Y.K. Lam prepared a further short report dated 19 April 2007.  In paragraphs 1 and 3 he says this :

“1.  MRI of the lumbar spine taken on 6 March 2007 only showed mild degenerative changes at multiple disc levels.  No other significant pathology was found.  The finding is consistent with the diagnosis of mild contusion injury.  No indication for surgical intervention is noted.

…

3.   After reading Dr. K.C. Lam’s report, I notice Dr. K.C. Lam had made his comment on impairment rating, duration of sick leave and future employment all based on the severity of pain complained by Mr. Tamang.  I hold a very different point of view concerning the severity of the back symptom.  I have explained in my previous report that symptom magnification is likely and my viewpoint remain unchanged after reviewing the additional information (i.e. the MRI and Dr. K.C. Lam’s report).”

17. Having considered the plaintiff’s evidence and the reports of the doctors I have concluded that the plaintiff has exaggerated his discomfort and incapacity and that such discomfort and incapacity as he does currently experience is largely due to a developing degenerative condition, the onset of which was accelerated by the accident.  I do not, however, think that the medical evidence demonstrates that it is likely that if there had been no accident the degeneration and consequential pain and incapacity would have been experienced by the plaintiff by the date of this trial.

Quantum

18. Mr C.K. Wong submitted that in view of the plaintiff’s degenerative condition pain and loss of income would almost certainly have occurred at some stage of his life.  He submitted that the damages should be reduced accordingly.  He referred me to a number of judgments : Chan Kam Hoi v. Drag-ages et Travaux Publics [1998] 2 HKLRD 958; Ng Kong v. Golden Caterers Ltd, HCPI 206/2004 and So Wang Chun v. Rainforce Ltd, HCPI 64/2006.  These reveal differing approaches to reducing damages.  One is assess PSLA and then reduce it by a percentage to take into account the degenerative condition.  The alternative is take it into account in the initial assessment.  It seems to me that at least on the facts of this case the latter is the preferable course.  Before turning to consider what is an appropriate level of PSLA further I should address Mr H.Y. Wong’s argument.

19. Mr H.Y. Wong submitted that on the evidence before me the degenerative condition was asymtomatic.  This I accept.  He says that this being so this is a “thin skull” situation as explained by Edmund Davis J in Love v. Port of London Authority [1959] 2 Lloyd’s Rep. at 545.  The operation of this principle was explained as follows : Recorder E. Chan SC at paragraph 87 of his judgment in Ng Kong.  Both counsel agree with it as a statement of principle :

“87.        I would agree that if the Plaintiff’s own pre-existing condition was such that it would not have prevented the Plaintiff’s from working unless the Plaintiff’s condition was aggravated by the accident, then the thin skull rule would apply and the Defendant must take the Plaintiff as he finds him and the Defendant is liable to compensate the Plaintiff in full.  However if the Plaintiff’s pre-existing condition is such that the interruption of work would have occurred in any event even without the accident, then no damages would be recoverable.  Of course, very often the position would be that the interruption would probably occur some day but the accident had accelerated the interruption, then it would appear to me that the court will have to take into account the effect of the pre-existing condition as in the case of Chan Kam Hoi v Drag-ages et Travaux Publics.”

20. The plaintiff contends that he is in the first of these three categories.  The defendants argue that he is in the 3^rd category.  I agree with the defendants.  The medical reports clearly suggest that to the extent that the plaintiff’s pain and incapacity are due to the degenerative condition they would have been experienced sooner or later.

21. Mr H.Y. Wong agreed that the plaintiff’s injuries and disabilities fall at the lower end of the serious injuries category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.  There was no fracture.  The plaintiff was not admitted to hospital.  He was given two weeks’ sick leave by doctors, who must have known that his work involved heavy manual labour.  The plaintiff accepted in cross-examination that his condition had deteriorated over the last four years.  The medical reports explain this deterioration (which I have found the plaintiff has exaggerated in any event) as the result of the degenerative condition of the lumbar spine.  In my view the appropriate way to assess PSLA in the present case is as follows.  In the first place one considers what would have been the likely level of PSLA if the plaintiff had not had a degenerative condition.  In my view it would have been in the lower range of the serious injury category and I would have awarded HK$280,000.  I do not accept that the plaintiff’s injuries are comparable to that in Lawati Bhawani Bikram v. Ting Kau Contractors, CACV3/2002.  One then asks to what extent the plaintiff’s discomfort and incapacity has been exacerbated by the precipitation of the degenerative condition.  I accept that it has been exacerbated.

22. I assess the damages for PSLA at HK$150,000.

23. I accept the length of sick leave is as stated in Form 9 : from 17 August 2004 to 31 August 2004 and 23 February 2005 to June 2006.  This totals 16.5 months.

24. The plaintiff’s actual earnings after the accident until he ceased work was approximately HK$11,500.  I accept that but for the injury he would have earned more overtime.  Mr H.Y. Wong invited me to accept that he would have earned about HK$15,000.  I think this is high.  I assess the plaintiff’s pre-trial loss of earnings (including MPF) as follows :

          HK$13,500 x 16.5 x 1.05 = HK$334,125.

25. I will reduce this figure by 45% to take into account the degenerative condition.  The figure for pre-trial loss of earnings is $183,769.

26. The plaintiff has not worked since the accident.  He says that he cannot expect to be employed in the kind of jobs which he would normally seek : construction work or security guard.

27. Mr C.K. Wong argued that there was no reason why the plaintiff could not at least return to light duties and that his failure to do so and thereby mitigate his loss should be taken into account.  As I have found that the plaintiff has exaggerated his symptoms I have some sympathy with this argument.  I am not persuaded that the right way to deal with the matter is (as Mr C.K. Wong argued) to refuse to grant loss of earnings beyond the expiration of sick leave and award a lump sum of HK$100,000.

28. The parties agree that but for the degenerative condition a multiplier of 14 would be appropriate.  In my opinion, in the light of the degenerative condition a multiplier of 8 should be used.  Mr H.Y. Wong (on behalf of the plaintiff) accepted in his closing submissions that the plaintiff might be able to earn HK$6,000.  The award for future loss of earnings would, therefore, be the following sum which includes MPF and assumes a monthly wage of HK$13,500 :

          (13,500 – 6,000) x 8 x 12 x 1.05 = HK$756,000.

29. Miscellaneous expenses of HK$14,000 have been agreed.

30. I, therefore, award the following :

31. There will be interest at 2% on the PSLA from the date of the writ to judgment, and interest on the special damages at half the prevailing judgment rate from 17 August 2004 to the date of judgment.

32. In respect of costs, I make an order nisi that the defendants pay the plaintiff’s costs of the action to be taxed if not agreed.  The order will become absolute if written notice that a party wishes to vary it is not received within seven days of the date of judgment.