LO KWOK LEUNG v. STEPWISE BUILDING MATERIALS LTD

HCPI 444/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 444 OF 2007

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D E C I S I O N

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1.  The case was referred to me by the PI Master on Pre-Trial Review for the consideration on the expert evidence both on liability as well as quantum.

2.  The plaintiff was born in 1948.  He was employed by the defendant as a driver and deliveryman.  He claimed to have sprained his back during delivery of materials on 4 June 2004.  He complained of low back pain and was given 150 odd days sick leave.  

3.  The Master has ordered that there be no expert on liability.  However, the plaintiff has disclosed a report on the system of work by the Occupational Safety Officer of the Labour Department.  Ms. Tong, for the defendant, has no objection for it to be adduced as expert report for the plaintiff.

4.  The respective Orthopaedic experts are Dr Brain Chan for the plaintiff, and Dr David Cheng for the defendant.

5.  Dr Cheng’s report dated 16 February 2005 noted that radiological examination showed lumbar lordosis (protrusion) with marginal osteophytes (bone spur) over all lumbar spines suggestive of degenerative changes.  There was no bony injury or neurological deficit.  Dr Cheng considered the plaintiff’s aches and pains are symptoms of degeneration rather than result of injuries to the back.  Since there was no correlation with the accident, he did not give an opinion on the length of the sick leave.  He said the plaintiff could resume his job as driver and deliveryman as little would be affected by the conditions of degeneration.

6.  Dr Chan’s report dated 28 April 2006 noted that the plaintiff had neck pain since 1999.  Dr Chan looked at the X-rays taken in March 2006 and noted lumbar spondylosis (degeneration) at T12-S1 with marginal osteophytosis, and cervical spondylosis at C4-6 suggestive of degenerations or herination.  Condition was static and no further treatment was needed.  The plaintiff could resume his pre-accident work as transportation worker with slight reduction in efficiency.  Sick leave should be 3 months.

7.  On 6 March 2007, the plaintiff underwent a MRI. 

8.  Dr Chan’s further report dated 25 April 2007 referred to the MRI showing larger paracenetral disc protrusion (PID) over L5-S1 and probable compression of L5-S1 nerve roots which might be accountable of the back pain.  Given the plaintiff had no history of back injury or back pain, the PID would be related to the injury sustained.  The plaintiff could not lift heavy objects and might need to change job as caretaker.  Should his condition deteriorate, operation should be considered.

9.  Dr Cheng’s further report dated 10 September 2008 referred also to the MRI report (but without sight of the MRI).  The report stated a  larger PID at L5-S1 and probable compression of S1 nerve root and risk of compression of L5 nerve root.  Dr Chan noted the plaintiff in telling him of experiencing sense of weakness with cold sweating while taking boxes of about 20 lb, then rested for a while and continued work.  Hence, Dr Chan said there was no injury, sprain or fall.  Dr Cheng said the disc protrusion was degenerative changes of daily wear and tear, as if the nerve compression were caused by the accident, the symptoms would be more severe and immediate.  Since the spine condition was not related to the accident, surgery was not recommended.

10.  The reports spoke of a pre-existing spinal degeneration.  But Dr Chan’s comment on surgery seems to be brief and not fully considered both as to the probability of need as well as risk and benefit.  Dr Cheng had not seen the MRI and had not commented on the  surgery from a clinical point of view. 

11.  The forensic consideration of  pre-existing spinal degeneration usually encompasses whether, regardless of the accident, a change of job and/or surgery would have been necessary within a period from a notional date (such as the date of the accident or the MRI).   

12.  As the plaintiff is unrepresented, Ms Tong has agreed to a joint examination and report for the opinions on, inter alia, the following:

(1)  Whether there was pre-existing spinal degeneration;

(2)  Regardless of the accident, whether nerve root(s) compression would have occurred;

(3)  If so, when as from the notional date (such as the date of the accident or the MRI);

(4)  If not, whether the compression was caused or contributed by the accident;

(5)  Whether the nerve root compression needs surgical operation;

(6)  Assessment of risk and benefit of such operation;

(7)  Prognosis on employability upon receiving the surgery, if any;

(8)  Sick leave period both for the original incident, as well as the surgery, if any.

13.  I shall direct that the joint report be obtained within 2 months and there be a 2^nd Pre-trail Review on 6 April 2009 at 10:30 a.m.

14.  The OSO report shall be adduced as expert report on liability for the plaintiff.

15.  Costs shall be costs in the cause.