SIU LEUNG SHANG PETER v. CHUNG WAI MING

HCPI 43/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 43 OF 2006

____________

____________

_______________

J U D G M E N T

_______________

1.  On 3 November 1999 the plaintiff, Mr Siu, then aged 47 years, was the victim in a traffic accident; the car he was driving was struck by another with some force.  It seems that the driver, the defendant, had run a red light.  Mr Siu remained conscious, but complained of severe neck pain and also pain in his right thigh.  As a result he was taken by ambulance to Tuen Mun Hospital.  The leg injury was transitory and he has fully recovered from that.  This action in damages concerns the neck injury.

2.  Prior to trial the defendant admitted liability without contribution.  That which remains is an assessment of damages.

3.  First, a brief history.

Background

4.  Mr Siu was born on the Mainland but has lived in Hong Kong since 1962.

5.  In 1974 he joined the staff of Castle Peak Hospital as a psychiatric student nurse.  He completed a 3-year course to achieve a Psychiatric Nursing Certificate in 1978 and in due course was promoted to the rank of Nursing Officer.  After that he achieved a post-registration diploma in nursing administration, and a Certificate of Mental Handicap Nursing.  In 1994 he qualified with a degree in Nursing that came jointly from the Chinese University in Hong Kong and La Trobe University of Australia.  Throughout, Mr Siu continued to work at CPH. 

6.  Then it was that he decided to take voluntary early retirement in November 1998, when he was aged 46, after 24 years of service.  He said that he chose to do so with the intention of rejoining the workforce after a two-year break, whilst still young enough to be employable but with the added benefit of a pension.  The break, he said, was necessary to preserve his pension; by regulation a civil servant cannot work at what he has retired from for two years after retirement.

7.  Up to this point he had been earning $47,500 per month; thereafter, his pension has been $17,139 per month.

The Issues

8.  At the time of the accident Mr Siu was one year into his post-retirement break and thus not yet re-employed.  It is his case that the neck injury that he suffered in the accident has persisted as a permanent disability with continued pain and loss of enjoyment of life and, in particular, has prevented his return to the nursing profession.  Had he been able to do so he would have been earning around $35,000 per month.  All that is available to him is menial work for which the pay is no more than $10,000 per month.

9.  The defence is that the injury was nothing more than a mild sprain; certainly that it was not so severe as to make it not possible for him to go back to work.  Further, it is said that such disability that he now suffers from is as a result of degenerative changes that have developed naturally as a result of enhancing years.

10.  So, the issue is as follows:

to what extend did the accident disable Mr Siu?  Given that he does suffer from degenerative changes, were these brought on by the trauma of the accident?

Post-Accident

11.  A short report from Tuen Mun Accident and Emergency reveals that on the afternoon of the accident Mr Siu was examined, which included an x-ray of his cervical spine.  He was found to be suffering from “Mild neck stiffness” with otherwise unremarkable conditions.  The x-ray showed a slight loss of lordosis of the spine.  And the prognosis was “permanent disability is not expected as a result of the injury …”.  He was given two days sick leave. 

12.  The report also states, curiously, “The patient disappeared before reassessment”.  Asked about this, Mr Siu explained that the police had required him to return to the scene to remove his car.  With the assistance of analgesics he had been given he felt fit enough to do so, with no need to go back to the hospital. 

13.  In fact, Mr Siu did not return to Tuen Mun Hospital thereafter or indeed be treated by any practitioner of Western medicine for a total of four years nine months.

14.  It is his case and evidence that this was not to say he had recovered from his injury.  The neck pain persisted, dull-aching in character and activity related.  It interrupted his sleep, caused a curtailing of activity he had hitherto enjoyed, affected relationships in his family, damaged his self-image and caused a loss of confidence.

15.  When permitted by the passage of time to do so, he applied for posts in the nursing profession on a number of occasions without success.  He puts that down to his performing below par during the interviews.  Now he says that realistically the demands of the job would make it impossible for him to achieve his goal; he has to settle for menial activity and a much reduced income.

16.  Notwithstanding the persistence of the injury to his neck Mr Siu chose, according to his account, to bypass his own calling and traditional forms of consultation and treatment; instead he engaged the services of a local bonesetter whom he only knew as Master Tam.  I say according to his account, because during the more than four years that he says he chose this course there is not one receipt nor document nor any other evidence at all that he did so.  Moreover, he was unable even to estimate the number of occasions he visited Master Tam or the regularity of his visits.  Furthermore, the treatment on his account did not benefit him apart from temporary relief following his being administered with analgesics.

17.  Mr Siu said he forsook Western style treatment because the cost of that would have been prohibitive.  But as a retired civil servant he would have had access to free medical treatment and he would have known that.

18.  I have to say that his account of how badly affected he was at this time and how he dealt with it is bereft of support and clouded with doubt.

19.  In August 2004, by now four years nine months after the accident, Mr Siu became a patient of Dr Kuan Ying Fatt.  Dr Kuan is not a registered orthopaedic specialist in Hong Kong, though it is apparent from his CV that he has experience in this field.  His practice is entitled Associated Trauma and Orthopaedic Practice.  His notes reveal that Mr Siu has been to him for treatment several times a month since August 2004.  Mr Siu said he switched because the bonesetter could only provide temporary relief.  Why it took him more than four years to come to this decision is not clear.

Pre-trial Management

20.  An unusual development at pre-trial hearings before a Master requires me to make a ruling which I now come to deal with.

21.  As a prelude to the bringing of this action Mr Siu’s solicitors engaged the services of Dr Au Ka Kau, a recognized specialist in Hong Kong orthopaedics, to examine and report on his condition and proffer his expert opinion for use by the court.  Dr Au examined him on 22 October 2002 and his report which is on file is dated 29 October 2002.

22.  The defence for its part appointed Dr Tsoi Chi Wah as its expert in the field.  By order of 31 March 2003 a Master directed that the medical evidence be limited to that of one orthopaedic expert for each party, naming Drs Au and Tsoi.  The parties were required to arrange a joint examination and report.

23.  To this end, Mr Siu was examined by both doctors on 9 May 2003 and their joint report came to light on 19 May 2003.  That report is also on file.

24.  But what happened next emerges from a subsequent directions ruling by a Master of 1 September 2005.

25.  By this time, it will be recalled, Mr Siu had for the first time engaged the services of a practitioner of Western medicine, Dr Kuan, choosing to wait four years nine months before doing so.  On his behalf Mr Siu’s solicitors applied to have Dr Kuan substituted as his orthopaedic expert.  The Master acceded to this request.  At the same time he gave leave that Dr Au’s report of 29 October 2002, the joint report of Drs Au and Tsoi of 19 May 2003 and supplementary reports of Drs Au and Tsoi of 2 April, 15 April and 27 June 2005 should all be adduced at trial.  Dr Kuan meanwhile had prepared his own report, prospectively as Mr Siu’s expert, of 17 September 2004.  And leave was given for that to be adduced also.

26.  This development troubled Mr Hemmings, who appeared before me on behalf of the defendant, in two ways.

27.  The first concerned the status of Dr Kuan.  He is not a registered orthopaedic with recognized expertise in the field.  On his own account, he has not before given expert testimony in court.  More seriously, since August 2004 Mr Siu has been his patient, so that opinion from him whether expert or not might not have the necessary objectivity that would be forthcoming from an independent practitioner.  This is particularly important in personal injury cases, where as far as possible the plaintiff’s subjective account should be tested to avoid or at least reduce the risk of his exaggerating his symptoms.

28.  The second matter that concerned Mr Hemmings was the direction by which he was appointed.  This was in effect a substitution of one expert for another.  Yet the reports of the replaced expert were permitted to be adduced at trial.  And because he is no longer an appointed expert there was no direction requiring Dr Au to be called to give evidence and be available for cross-examination.

29.  Mr Hemmings submitted that because of Dr Kuan’s want of expertise and subjectivity I should not rely on his evidence or at least treat it with caution.  And in considering the reports of Dr Au I should pay heed to his account of clinical tests and so on but not his opinion; to do otherwise would be to ignore the issue of substitution.

30.  Mr Cheung for Mr Siu responded that the matters raised by Mr Hemmings could and should have been dealt with at the pre-trial review; that leave has been given and the parties should be free to proceed in reliance on the directions made by the Master.

31.  Maybe so; but as the trial judge, I have a duty to ensure that there is fair play between the parties in the conduct of the trial.  The direction for substitution was just that, to result in there being two experts and their evidence before me, not three.  To include Dr Au’s opinions would result in the plaintiff having an additional expert without his opinions being tested in cross-examination.  He cannot call for Dr Au to be replaced and yet still look to his viewpoint for support. 

32.  I propose to deal with this in the manner suggested by Mr Hemmings; that is, to heed Dr Au’s clinical findings but not his opinions.

33.  As for the suitability of Dr Kuan as an expert; I shall not go behind the direction that appointed him as Mr Siu’s expert.  However, I have to say, I find it somewhat irregular that the doctor in a doctor-patient relationship should be called upon to give expert evidence to establish the extent of injuries his patient claims to have suffered.  What about objectivity?  The point is graphically illustrated in an exchange between Mr Hemmings and Dr Kuan during cross-examination:

“Q.    Your opinion to the effect that the traffic accident that Mr Siu was involved in triggered the symptoms of Mr Siu; that is, based on the fact that he told you that prior to the accident he did not suffer from neck pain?

A.      Yes, he did tell me that.

Q.      Your entire opinion is based on the assumption that what he told you is true?

A.      I believed my patient, yes.”

34.  In the circumstances it is, I think, necessary for me to deal with Dr Kuan’s opinion evidence with circumspection.  As Mr Hemmings pointed out, the only independent expert report and testimony is that of Dr Tsoi.

35.  With those rulings made I turn now to the medical findings.

The Medical Reports

36.  Dr Au’s first report following his examination in October 2002 was made nearly three years after the accident, with no intervening clinical observation. 

37.  Mr Siu told him of his neck pain, dull-aching in character.  He graded the severity of it at 2-3 in a scale 0 (no pain) to 10 (excruciating pain).  He noted no deformity of the neck, but tenderness over the neck with muscle spasms over the paraspinal muscle of the neck, and limitation of neck movement.  He took x-rays which revealed calcification in the anterior spinal ligaments between C4 and C7.  Normal cervical lordosis was preserved.

38.  There followed the joint examination and report made by Drs Au and Tsoi in May 2003.

39.  Both doctors reported tightness of the neck muscle and limitation in neck motions.  But Dr Tsoi observed voluntary muscle guarding; with attention distracted, the muscle was relaxed.  He also observed a better range of neck motion with attention distracted.

40.  The calcification of C4-C6 was noted.  Dr Tsoi opined of this:

“4.     X Ray of the cervical spine revealed calcification of anterior longitudinal ligament.  This is a radiological feature suggesting cervical spondylosis (degeneration), which may also cause neck pain.  Dr Tsoi would like to elaborate that if the neck is sprained, the patient will experience severe pain immediately after the accident and the intensity will gradually improve with time.  If pain is due to degenerative changes, he may experience on and off dull ache pain and soreness.  The pattern and the duration (more than a few years) of pain that Mr Siu described suggested that the neck symptoms (if any) were more related to the natural degeneration.”

41.  He said further that the prognosis depends on the natural degenerative course, which should bear no relation to the accident.

42.  He concluded that Mr Siu will have no physical problem in resuming nursing work in full capacity if he is willing to do so.

43.  The next development was that for the first time Mr Siu had an MRI scan in August 2004 which was initiated by Dr Kuan.  This was followed by Dr Kuan’s report of September 2004, written in anticipation of his appointment as Mr Siu’s expert, which was to come by direction in September 2005.

44.  Dr Kuan noted the stiff neck resulting in a reduced range of movement and muscle spasm of the neck muscles.  He referred to the MRI report noting that there was postero-lateral and posterior herniation at various levels of the C6/7, C5/6, C4/5 and C3/4 discs.  The disc at C6/7 was found to be causing a masked narrowing of the intervertebral foramen, likely thus to be compressing the C7 nerve root.

45.  He went on to opine that the injury was consistent with having been caused by the accident.  He said that it would be difficult for Mr Siu to resume his previous employment due to a combination of physical and psychological factors.  An inability to sustain concentration would limit his performance in a management capacity.  He recommended a psychological assessment, given Mr Siu was depressive with post-traumatic symptoms.

46.  He also recommended conservative treatment including anti-inflammatories and physical therapy.  (Dr Kuan’s notes reveal that this is how he has been treating Mr Siu since August 2004.)

47.  Drs Au and Tsoi were asked to provide supplemental reports.

48.  Dr Au’s, of April 2005, was largely to comment on Dr Kuan’s report of September 2004 which I disregard for reasons given.  But I note his clinical finding that it was unlikely that the disc herniations at multiple levels at C3/4, C4/5, C5/6 and C6/7 and the herniation at C6/7 as revealed by the MRI scan were the result of a single accident; that what was likely was that the herniation was degenerative in origin.

49.  Dr Tsoi’s report, also of April 2005, said that the multiple levels of posterior disc protrusion were very likely the result of natural degeneration.  Any sprained injury would not have been the cause of such widespread involvement.  The widespread degenerative disc disease could explain the long lasting and unrelieved neck pain.  And he went on to state:

“In our daily orthopaedic practice, we see many patients with degenerative disc disease with MRI feature similar to Mr Siu’s neck.  They present with spontaneous onset of neck pain with or without upper limb symptoms.  Most of the symptoms and discomfort are not precipitated by any injury.  Based on the MRI findings, it is more likely than not that Mr Siu will suffer from on and off neck and right upper limb symptoms even he did not meet with any accident.”

50.  He further opined that were the accident to have triggered or precipitated the onset of symptoms Mr Siu would have had severe neck and upper limb symptoms immediately.  But the Tuen Mun A and E report disclosed no such symptoms, and there was no apparent onset within the days thereafter.

51.  He went on to conclude:

“I maintain my previous view that Mr Siu only suffered from a minor sprain during the accident and the symptoms subsided soon and did not bother him anymore.  The onset of symptoms in later period was spontaneous, as a result of the natural degenerative cervical disc disease.  It should bear no relation to the subject traffic accident.”

of Dr Kuan’s report he commented:

“I agree with Dr Kuan that that symptoms of whiplash injury may be delayed.  However, it should be at most a few days and certainly not as late as years.

I agree with Dr Kuan that the long time prognosis is pessimistic.  However such unfavourable prognosis is wholly attributable to the widespread and advanced degenerative cervical discs disease.  The treatment suggested by Dr Kuan is also acceptable but again is for the sole purpose of treating the degenerative disease.”

52.  Next is a short report of Dr Tsoi of June 2005, following his having viewed the MRI film.  He said of that:

“Having reviewed the MRI films, I am of the opinion that Mr Siu suffered from cervical spondylosis (i.e. degenerative cervical spine) as a result of natural degeneration.  There was no sign suggesting that he had previous trauma to his neck.

I decide not to make any amendment to my report dated 15^th April 2005 as well as my opinion in the joint report dated 11^th May 2003.”

Could Mr Siu Return to Nursing?

53.  Whether Mr Siu’s injury was the result of the accident (as opined by Dr Kuan) or was degenerative in origin (Dr Tsoi) there is the further issue of whether Mr Siu is as a result of the injury (or disease) physically unable to return to work in his chosen profession.

54.  He stated from the witness box that he applied on many occasions for available posts, but was rejected every time.  He put this down to being slow to respond because of slow reactions.

55.  His view was that as a result of his disability it would be impossible for him to go back to being a nurse.

56.  But there is evidence on the point which would suggest otherwise.

57.  In the bundle are letters of application dated between July 2000 and October 2002 in which Mr Siu set out in detail his extensive qualifications and experience including managing skills and extra-curricular activity, and his suitability for the advertised position.  And there were two letters in reply.  One indicated his name was placed on a waiting list.  The other stated likewise, and also that he was found to be “very suitable for the post”.  There is no suggestion that he was unsuitable, or that the interview had been unfavourable.

Discussion

58.  To what extent was Mr Siu disabled by the accident?

59.  I begin by accepting that Mr Siu is disabled; the doctors agree that the MRI scan is clear evidence of this.  But to what extent did his involvement in the accident of November 1999 play a part?

60.  A significant feature is that the assessment after examination shortly after the accident was of mild injury only, with permanent disability not expected.  This is supported by Mr Siu’s disappearance before the examination was completed; and his non-appearance until more than four years later.  His account of attending at a bonesetter is fraught with vagueness and memory loss and has no corroboration.  And to give that up but not before four years and nine months have passed because it was not benefiting him casts doubt on the truth of that.  The burden being on Mr Siu to establish the extent of his injury I cannot believe he would be ignorant of the need to establish a regime of regular treatment (whether Western or Chinese) and have that fully documented.

61.  The first hard evidence of a significant injury was not forthcoming until the examination by Dr Au, and the report by Drs Au and Tsoi that the x-ray then conducted showed a degenerative condition.  The MRI scan confirmed this.

62.  Dr Kuan supported his patient’s claim that it all began with the trauma of the accident.  But I have to say I prefer Dr Tsoi’s opinion that there is nothing to justify a connection, for two reasons.

63.  First is that the scan shows a degenerative disease at different levels, supporting his contention that a single trauma is unlikely to have triggered it.  Second is the reference in the first report to the mild nature of the injury and the lack of any history in the years thereafter.

64.  I conclude therefore, that Mr Siu has failed to establish that as a result of the accident he has suffered to the extent he claims the pain, suffering, loss of amenities and the financial loss associated with his being unable to return to the nursing profession.

65.  I accept the proposition put forward by the defence; namely, Mr Siu suffered a soft tissue injury to his neck, the effects of which were mild and of short duration.

66.  Had I found that the accident was a trigger for the degenerative disease (which I have not) I would not have found it proven on the evidence that that has been the cause of Mr Siu’s failure to become a nurse again. 

67.  Dr Kuan’s opinion seems to have been coloured by what he observed to be psychological factors.  But there was no psychological examination, and that observation is, with respect, outside Dr Kuan’s field of expertise.  As Mr Hemmings ventured, perhaps as a man of about 50 he was a bit optimistic about re-employment.

The Award

68.  The only viable head for compensation is PSLA.  Mr Cheung for Mr Siu submitted that it should be around $200,000.  Of course that was on the basis that I found it proven that that the degenerative disease was caused or accelerated by the accident.  Mr Hemmings submitted given the mildness of the injury, and the short duration (two days sick leave) the amount should be no more than $30,000.

69.  I accept that to be the appropriate award, with interest at 2% from the date of the writ to judgment and thereafter at judgment rate.

70.  No further compensation is warranted.

71.  Costs are nisi.  I make a calculated guess that the award is less than payment in; thus, these are to the defendant.