HCPI 834/2015
[2018] HKCFI 1463
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 834 OF 2015
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BETWEEN
CHAN LOK HANG(陳樂恒)
Plaintiff
and
SWIRE RESOURCES LIMITED
Defendant
(太古資源有限公司)
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Before: Master M Lam in Court
Dates of Hearing : 23-25, 30 April 2018
Date of Judgment: 28 June 2018
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ASSESSMENT OF DAMAGES
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Introduction
1. This is an assessment of damages for personal injuries suffered in an accident at work on 27 November 2012 (“Accident”). Interlocutory judgment was entered against the defendant on 27 November 2015.
2. The plaintiff was born on 13 December 1978. Since May 2010, he has been employed by the defendant as a warehouse attendant. At the time of the Accident, he was aged 33, living in a flat on the 5th floor of a building without lift service. He lived there until the end of 2017.
3. The Accident occurred when the Plaintiff was lifting up a box of goods and placing it into a lorry. He sprained his back. Since then, he has received medical treatments for his back pain and subsequently, psychiatric problem as well. He took sick leave for a total of 743 days, from 28 November 2012 to 18 December 2014. He then took casual leave up to 27 January 2015. On 28 January 2015, he returned to work for the defendant and was assigned to perform clerical duties.
4. It is the plaintiff’s claim that as a result of the Accident, he has been suffering from persistent serious back pain with lower limb numbness and weakness as well as psychiatric problem. On this basis and on the basis that the injuries have disabled him from resuming his pre-accident work duties, i.e. lifting and carrying heavy goods, he claims damages against the defendant.
5. The defendant accepts that the plaintiff suffered from soft tissue injury to the back in the Accident and developed psychiatric problem as a result. It nevertheless disputes the injuries were minor. Sick leave period should be no more than a few months after which he should be able to resume his pre-accident duties in full.
6. Both parties agree that the plaintiff has pre-existing degenerative condition of his back. The plaintiff suggests that 20% reduction of the damages for PSLA and post-trial loss of earnings is appropriate whereas the defendant asks for a global deduction of 45% of the damages.
Plaintiff’s case
7. In the closing submissions, Mr Shum, Counsel for the plaintiff, summarizes the plaintiff’s clam as follows : -
(a) PSLA
HK$400,000
(b) Pre-trial loss of earnings
HK$209,786.13
(c) Pre-trial loss of MPF
HK$10,489.31
(d) Post-trial loss of earnings
HK$597,116.14
(e) Post-trial loss of MPF
HK$29,855.81
(f) Medical & travelling expenses
HK$7,000.00(agreed)
Sub-total
HK$1,254,247.39 plus interest
Less Employees’ Compensation
HK$560,000
Total
HK$694,247.39 plus interest
8. The plaintiff’s case is that he experienced a drilling sensation in his central low back with muscle tight feeling at the time of the Accident. He continued to work for another 45 minutes until he got off work. He did not seek medical treatment on the date of the Accident. In the next morning, his back pain worsened and he could not walk unaided. He sought medical treatment from the General Out-Patient Clinic at Lam Tin (“Lam Tin Clinic”). Thereafter, he received various medical treatments from various government hospitals and private clinics.
9. He started to develop low mood and sleeping problem about 6 months after the Accident and receive psychiatric treatment from government hospitals from 28 November 2013.
Medical treatments and records
10. According to the medical record of the Lam Tin Clinic, the plaintiff walked unaided with normal gait when he was first seen on 28 November 2012. There was diffused tenderness over L4/5 level but without lower limb neurology. X-ray of his spine showed no facture. He was diagnosed to sustain back pain.
11. Thereafter, he attended the Accident and Emergency Department (“AED”) of Alice Ho Miu Ling Nethersole Hospital (“AH”) for treatment on 4 December 2012. He was found to have tenderness at lower back but without neurological deficit over the lower limbs. There was no limb numbness or weakness. Similar findings were made in his next visit on 7 December 2012. He walked unaided and was diagnosed as having sprain of back.
12. He attended 2 courses of outpatient physiotherapy for low back pain, from 6 to 19 December 2012 and 6 March to 6 June 2013. He also received 19 sessions of occupation therapy between 25 April and 16 August 2013.
13. He was first seen in the orthopaedic clinic of AH (“Orthopaedic Clinic”) on 4 March 2013. He was found to have tenderness at L4/5 of the lower lumbar spine with mild weakness of lower limbs. He had no muscle spasm. The jerks and straight leg raising test were normal. X-ray showed no obvious fracture or mal-aligament in the lumbar spine.
14. During consultation at the Orthopaedic Clinic on 30 September 2013(“September Consultation”), he was regarded to have reached maximum medical improvement and was referred to Employees’ Compensation Assessment Board (“MAB”) for assessment.
15. Magnetic resonance imaging scan of his lumbar spine was performed on 12 September 2013 (“First MRI”) and on 8 December 2013 (“Second MRI”), (collectively as “Two MRI”).
16. According to the consultation notes prepared by several treating doctors of the Orthopaedics Clinic including the notes regarding the September Consultation, the First MRI was recorded as : -
(a) “annular tear in L3/4 and L4/5;
(b)mild board-base protrusion in L3/4, L4/5 and L5/S1 (Disc desiccation).
(c) No obvious neural compression.”
(“First MRI Record”)
17. According to the radiologist’s report, the Second MRI showed : -
(a) decreased signal and height at L3/4, L4/5, L5/S1 compatible with desiccated disc.
(b)at L3/4, focal linear T2 hyperintense signal at the posterior edge of the disc compatible with annulus tear.
(c) mild bulging disc associating with no significant mass effect, lateral recesses and existing neural foramen intact.
(d)Prominent anterior osteophyte at T11/12
The conclusion was desiccated disc L3/4 to L5/S1 and mild bulging disc L3/4 associating with focal annulus tear.
(“Second MRI Record”)
(collectively as “Two MRI Records”)
18. The plaintiff was assessed by the MAB in December 2014. His permanent loss of earning capacity caused by the back injury resulting in back pain and psychiatric impairment was assessed to be 31% with sick leave given from 28 November 2012 to 18 December 2014.
19. During the work rehabilitation assessment on 17 June 2015, the plaintiff’s lifting capacity was assessed to be up to 31 kg.
Expert evidence
psychiatric expert evidence
20. The joint psychiatric expert report prepared by Dr Peter Ho Pang Nin for the plaintiff and Dr Chung See Yuen for the defendant dated 23 June 2015 is adduced at this hearing without oral evidence. Both experts agreed that : -
(a) the plaintiff has suffered from mild adjustment disorder with mixed anxiety and depressed mood which was wholly caused by the Accident;
(b)his psychiatric condition was of a mild nature and he has reported improvement after treatments in the public sector.
(c) he was mentally fit to return to pre-accident job. The impairment of his working efficiency should be mild.
21. Even though the two psychiatric experts differed on the period of further treatment for the plaintiff (2 years from the psychiatric assessment on 21 May 2015, i.e. up to 21 May 2017, as opined by Dr Ho whereas 6 months, i.e. up to 21 November 2015, as opined by Dr Chung), the suggested psychiatric treatment by either expert should have finished by now. Absent justification for further psychiatric treatment, Mr Shum sensibly makes no claim for future medical expenses.
22. The dispute on the plaintiff’s psychiatric problem is therefore confined to the appropriate sick leave period : 6 to 7 months when his mental symptoms were most intense (as opined by Dr Ho) or 3 months from the beginning of the psychiatric treatment, i.e. 28 November 2013, (as opined by Dr Chung).
orthopaedic expert evidence
23. The plaintiff was examined by the orthopaedic experts, Dr Lam Chi Keung, Johnson for the plaintiff and Dr Chun Siu Yeung for the defendant, on 12 May 2016 (“Joint Orthopaedics Examination”). A joint report dated 21 November 2016 (“Joint Orthopaedics Report”) was compiled. Both experts give evidence in Court.
24. Dr Lam opines the plaintiff to have suffered from soft tissue injury to the back in the Accident, probably causing or aggravating disc protrusion and annular tear at L4/5 and/ or L3/4 in the low back causing persistent low back pain and impairment. The plaintiff still has some mild-to-moderate pain in the low back. The injury carries 8% impairment of the whole person and 8% of loss of earning capacity. He endorses all the sick leave granted by the treating doctors.
25. To that, Dr Chun disagrees. He takes the view that the Accident did not occur and the plaintiff’s low back pain was recurrent mechanical low back pain which was unrelated to the Accident. The plaintiff has no permanent impairment nor loss of earning capacity as a result of the Accident. The sick leave for the recurrent low back pain should not be more than 4 weeks.
26. To start with, I should consider Dr Chun’s evidence in light of the defendant’s admission that the plaintiff sprained his back in the Accident. The admission was crystallized in the interlocutory judgment. As sensibly conceded by Mr Chan, Counsel for the defendant, Dr Chun’s opinion that the Accident did not happen and his diagnosis and causation flowing therefrom can carry no weight.
Pre-accident condition
27. I shall first deal with the argument on what was the pre-accident condition of the plaintiff’s back. It is not disputed that the plaintiff had :
(a) a sprain back injury on 10 July 2012 (“July Injury”). He was granted sick leave from 10 to 21 July 2012 for 12 days. He was assessed by the MAB to have sustained a sprain of back resulting in pain and stiffness over the low back with a permanent loss of earning capacity of 2%.
(b)pre-existing degenerative changes of the spine before the Accident;
28. The plaintiff says that before the Accident, he had never suffered from any back pain other than from the July Injury. The defendant argues that there were other occasions of back injuries or pain as evidenced in the physiotherapist’s handwritten notes (“Notes”) as well as the plaintiff’s handwritten answers (“Plaintiff’s Answers”) to a self-assessment questionnaire (“Questionnaires), both written in the same physiotherapy assessment at AH on 6 December 2012.
29. In the Notes, the physiotherapist recorded the Accident was the “3rd episode this year; 1st and 2nd episodes happened this year; similar PB but this time more severe affect walking ”. Dr Chun has once suggested that such notes were a proof of the plaintiff having two back injuries or pain, i.e. the 1st and 2nd episodes, in 2011.
30. At this hearing, Dr Chun clarifies that the Notes actually recorded the 1st and 2nd episodes happened in 2012 not 2011. In any event, as the meaning of “episode” is unknown, I am slow to regard the Notes as solid proof of the plaintiff having any back injuries or pain other than the July Injury before the Accident.
31. As to the Plaintiff’s Answers, it is true that in that the plaintiff gave answers that he took 61-90 days off from work due to pain in the past 12 months, that his back pain lasted for 12 to 23 weeks, that he suffered from continuous severe pain in the past three months. I however accept Mr Shum’s argument that such answers do not give a true description of the plaintiff’s conditions. They run counter to the plaintiff’s work-related records and are unlikely to be true.
32. The plaintiff’s work-related records show that before the Accident, he had not taken any sick leave nor reported any back injury other than that for the July Injury. His performance was all along apprised as good. Overtime allowances and performance allowances were consistently granted to him.
33. Coupled with his resumption of normal duty, performing heavy work on a daily basis without reported recurrent pain or medical treatment after the short sick leave for the July Injury, it is unlikely that he had suffered from significant and continuous pain due to the July Injury, degeneration and/ or other injuries before the Accident.
34. Such evidence supports Dr Lam’s opinion that the plaintiff had enjoyed relatively painless and satisfactory function in his low back other than the short and relatively mild pain resulting from the July Injury before the Accident. It is more likely that his pre-existing degenerative condition of the spine which until the Accident had been symptomless.
35. On the other hand, given the questions in the Questionnaire were straight forward and in simple Chinese, the plaintiff’s explanation that he might have misunderstood the questions and accordingly gave imprecise answers is far from convincing. The Plaintiff’s Answers indicate his tendency to exaggerate his pain.
The injury
36. To justify the Accident has caused or significantly aggravated disc protrusion(s) and annular tear(s) at L3/4 and/ or L4/5 in the plaintiff’s low back, Dr Lam relies heavily on the Two MRI Records and the findings of paraspinal spasm by the AED on 12 January 2013.
37. To that, Dr Chun disagrees. He says that as the Two MRI images were not available for inspection at the joint examination, he could only refer to the records of the treating doctors for the information about the First MRI. He takes the view that those treating doctors must have confusingly used the word “protrusion” in place of “bulging” in the First MRI Record which was a common confusion in the medical profession. On this basis, he opines that as bulging of a disc was due to desiccation and degeneration but not traumatic injuries, no protrusion or annular tear was caused by the Accident.
38. On this issue, the following matters are not in dispute : -
(a) Protrusion of intervertebral disc could be caused by accident as well as degeneration but bulging is the result of degeneration and could not be caused by traumatic events;
(b)One of the major differences between “bulging” and “protrusion” is that for bulging, it covers the whole circumference of the disc or most of it while protrusions are localized displacement of disc material involving 25% of the disc circumference.
(c) The Second MRI recorded as “L3/4 focal linear T2 hyperintense signal at posterior edge of disc ”, means localized dense tissue at lumbar spine gap between L3 and L4 segments showing fluid there indicating inflammation which may or may not cause pain. Annular tear means sign of soft tissue surrounding the jelly of the disc having been torn.
39. In my view, given the words “protrusions” and “bulging” carry different definitions and implications and having gone through the medical records, I am not convinced that several orthopaedic doctors, including Dr Ho, Dr Koo and Dr Leung of the Orthopaedic Clinic, would have misused the word “protrusion” in their respective consultation summaries. In particular, they also kept record of having reviewed the First MRI with the plaintiff. Absent solid evidence to challenge the accuracy of those consultation notes, I have no reason to doubt their accuracy.
40. Having considered the mechanism of injury, the clinical picture, the examination findings, the Two MRI Records and the expert evidence, I accept Dr Lam’s opinion that the plaintiff suffered from soft tissue injury to his back causing or, more likely, aggravating disc protrusion resulting in pain for his opinion is well-reasoned as follows : -
(a) as mild soft tissue injury would likely achieve good recovery not more than 3 months of treatment (Dr Chun suggests not more than a few weeks), the Two MRI and the findings of the Orthopaedic Clinic on 4 March 2013 tend to show the plaintiff has not just suffered from a mild soft tissue injury to his back;
(b)the finding of paraspinal spasm on 12 January 2013 is also an objective evidence of the plaintiff’s low back pain which could not be feigned. Such finding was consistent with the findings of the plaintiff’s tenderness over his lower back at various clinics in that period of time.
(c) the plaintiff’s allegation that he first experienced a little discomfort in the back when lifting and the symptom increased in the next 24 hours necessitated medical treatments supports a case of a disc protrusion first stretches the ligaments of the back of a disc, giving back pain.
(d)the presence of localized protrusion and inflammation on disc sits comfortably well with the suggestion that the pain was caused by annular tear and/ or protrusion as a result of the Accident. While I accept that the accident as described by the plaintiff would unlikely cause multiple disc protrusions and multiple annular tear and the plaintiff had degenerative condition including desiccated and bulging disc, I find Dr Lam’s explanation that the Accident could still cause or aggravate protrusions and/ or annular tear at one or two disc, i.e. at L3/4 and/ or L4/5, logical;
(e) given the natural progression of back degeneration is usually a slow and gradual process and the plaintiff had enjoyed relatively painless and satisfactory function of his low back before the Accident, it is highly unlikely that he would suddenly experience persistent low back pain as a result of coincidental and natural progression of degeneration or of his previous injuries.
(f) With regard to the fact that the record of board-base protrusion in L3/4, L4/5 and L5/S1 in the First MRI Record was not repeated in the Second MRI Record, it is likely the mild protrusions were improved in the self-repair process leaving the localized inflammation at L3/4 as demonstrated in the Second MRI Record.
41. Dr Lam’s opinion is well-justified. I attach much weight on his opinion save that his opinion has to be considered in light of my fact-findings on the plaintiff’s exaggeration of his pain and disabilities as elaborated below. Such exercise is indeed endorsed by Dr Lam who expresses that the degree of the plaintiff’s injury, pain and disability should not be as severe as the plaintiff claims. He also agrees that the inappropriate signs and responses given by the plaintiff made it more difficult to assess the plaintiff’s conditions. This is particularly the case as pain is subjective which can be exaggerated or made up.
Plaintiff’s allegations
42. The plaintiff says that his persistent serious low back pain with lower limb numbness and weakness has prevented him from resuming his full pre-accident work duties. The pain would be worsened by prolonged sitting, standing, walking or bad weather. I however am not convinced that the injuries were as serious as alleged.
43. Prima of all, the mode of the injury does not support a serious injury causing acute pain. The plaintiff says that at the time of the Accident, he was cautious about safety. He employed a safe method of lifting the box up and put it into the lorry without bending his back, with kneeling position up. It was neither a swift nor forceful act or twist.
44. Further, it is his evidence in Court that handling objects weighing from 1 to no more than 20kg was a daily routine act for him and the box involved was not particularly heavy, just 10 odd kg. Not only that he sought no medical treatment that day, he managed to finish his work that day, travel home and climb up flights of stairs to reach his home on the fifth floor of a building. As he admitted to the Pain Clinic on 16 January 2014, he did not feel acute pain immediately on the day of the Accident. In the circumstances, it is highly unlikely that such act would have caused more than mild-to-moderate soft tissue injury to a burly man in his early 30s’ even at the end of a day’s work.
45. Despite Dr Lam’s suggestion that it is a classical picture for a patient having symptoms of disc protrusion first to experience a little discomfort in the back then within the next 24 hours the symptoms increase, with more backache, if the protrusion presses on a nerve root, the pain then spreads into the lower limbs, the evidence shows the plaintiff did not suffer from serious pain at the time of the Accident nor on the following days.
46. The plaintiff gave evidence in the Joint Orthopaedic Examination and in Court that on the day following the Accident, his back pain was so serious that he could not get up from bed. He was only able to reach the Lam Tin Clinic and got into the consultation room with the support of his friend and in a limping gait.
47. His allegation is however disproved by the treatment record of that day. He was recorded to be walking unaided with normal gait without lower limb weakness or numbness. Similar findings were noted in his two following visits at the AED on 4 and 7 December 2012 as elaborated above. Undoubtedly, the degree of pain was substantially less serious than he presented to Dr Lam.
48. In fact, the plaintiff’s complaints of serious numbness and weakness over the lower limbs are unjustified. Although Dr Lam opines that the plaintiff’s complaints may be explained by phenomenon such as “referred pain” from the annular tear or disc protrusion, the plaintiff did not make such complaints until after mid-December 2012. He had neither lower limb neurological deficit nor nerve root compression. There were repeated findings of full power of the lower limbs and normal results of the straight leg raising tests. Both orthopaedic experts indeed agree his claims of numbness and weakness cannot be supported by objective medical evidence.
49. All along, he has only received conservative treatments with analgesics, sick leave, physiotherapy and occupational therapies. He defaulted several physiotherapy sessions and declined any optional treatments including epidural steroid notwithstanding his complaints of continuous severe pain for years. No muscle spasm other than findings of paraspinal spasm on 12 January 2013. There was no hospitalization nor operation.
50. Moreover, there was a substantial period during which he did not rely on analgesics. The Pain Clinic did not prescribe analgesic from his first appointment on 16 January to 24 October 2014apart from the period between 5 and 26 June 2014 when he was recorded to have taken only 4 times of Panadol and one tablet of Ibuprofen. On 16 January 2014, the straight leg raising test did not show typical pain and the Patrick test was negative. He had normal lower limbs power and sensation. He walked unaided. No sick leave was granted.
51. On 10 June 2014, his complaints of pain and disabilities were found out of proportion to his injury and the MRI findings. On 19 August 2014 and 24 October 2014, he was recorded to have not taken any analgesics.
52. The plaintiff confirms in Court that he took only analgesics prescribed by the doctors. He did not himself purchase any analgesic. Under cross-examination, he tries to explain that when he was not prescribed any analgesic by the Pain Clinic, he was in fact taking the analgesic prescribed by the Orthopaedic Clinic during the same period. However, when his attention is drawn to the fact that he was not prescribed any analgesic by the Orthopaedic Clinic during the consultations from 26 November 2013 to 2 February 2015, he then changes to say that he took the analgesics previously prescribed to him which he had not taken.
53. Absent any solid evidence to show that the analgesics previously prescribed to him was sufficient to meet his needs (said to be about 4-5 times per week and sometimes several times each day) for so many months, his allegation is unbelievable.
54. Dr Koo[1] , having referred to the consultation notes on 4 March 2013 and the First MRI, concluded that the clinical diagnosis was low back pain due to back sprain. He stated that a course of physiotherapy and occupational therapy was arranged for the plaintiff and the purpose of the subsequent orthopaedic clinic appointments were solely to monitor the progress of his rehabilitation.On 25 July 2013, his back pain was noted to be static.
55. The plaintiff finished the course of physiotherapy rehabilitation on 6 June 2013 and occupational rehabilitation on 16 August 2013. The Occupational Therapy Report showed that by 16 August 2013, he was able to perform bilateral lifting of 30 pounds from floor to shoulder and 40 pounds from floor to knuckle, i.e. about 13.63kg and 18.18kg respectively. Given his confirmation in court that his pre-accident work was to handle goods weighing 1kg and up to but no more than 20kg, his lifting capacity by then was very close to his pre-accident work demand.
56. During September Consultation on 30 September 2013, the plaintiff was assessed to have reached maximum achievable improvement and was referred to MAB for assessment. He has received no active treatment from then on. At his next appointment on 26 November 2013 and the subsequent regular check-ups, there was no medication. Sick leave has been granted to him for 43 days, 57 days, 64 or 73 days in each visit, being recorded as sick leave pending appointment of the MAB. His case was closed on 2 February 2015 after the assessment of the MAB and no sick leave was granted to him.
57. Likewise, there has been no record of active treatment for the back pain from the AED after 30 July 2013. In his next visit on 25 January 2014, there was no medication.
58. In his first visit at the Pain Clinic on 16 January 2014, he walked unaided. He could walk on toes and heels. Despite his complaints of tenderness, the straight leg raising tests were full which showed no typical pain. Power and sensation of lower limbs was normal. No medication was prescribed.
Surveillance
59. The assessment of the plaintiff's veracity was confirmed by a surveillance film (“Film”) taken of the plaintiff. The Film shows the period between 19 September and 8 October 2014 as well as 22 and 29 March 2016. The plaintiff is seen walking over flyovers, up and down flights of stairs (while talking on phone or holding an umbrella in rainy days) in a normal gait unaided for more than 20 or 30 minutes.
60. He has once touched the handrails but obviously not with force for support. Although he tapped on his low back twice when he was walking to the clinic for medical follow-up appointment on 7 October 2014 which might suggest some back discomfort after prolonged walking, the discomfort could not be serious and apparently did not affect his mood or walking at that time. My observation is consistent with the consultation notes of that day. Those notes recorded that he had been able to climb flights of stairs to reach his home on the 5th floor of the building within 10 minutes. The Film is a solid proof that his physical and psychiatric disability should be mild indeed.
61. The fact that he had been living in a flat on the 5th floor of a building without lift throughout the Accident until the end of 2017 renders his complaint of persistent serious back pain and numbness and weakness of his lower limbs difficult to believe.
62. In further review of his giving way in a number of medical assessments, of the findings of his complaints of pain and disabilities not proportional to the objective medical findings, of some Waddell’s tests were positive, of the two MRI Records indicating mild protrusion which improved within a few months, I take the view that the plaintiff has been exaggerating his symptoms and disabilities.
63. Weighing all the evidence in the round, the plaintiff’s allegation of serious back pain and lower limbs numbness or weakness is unjustified. I form the view that he only suffered from mild-to-moderate soft tissue injury to his back causing, or more likely, aggravating disc protrusion resulting in mild-to-moderate degree of pain to his lower back which have been substantially improved after treatments.
Sick leave
64. The plaintiff was granted sick leave until 18 December 2014. He resumed working for the defendant with light duty on 28 January 2015. He claims that he has suffered from a partial loss of earnings by reason of his inability to resume his pre-accident work duties in full.
65. In determining the reasonable period of sick leave for calculation of the plaintiff’s loss of earnings, this Court is not bound by the sick leave certificates issued by the treating doctors and is to evaluate the period in light of all the available evidence[2] [3]
66. Taking into account the fact that, on 30 September 2013, the plaintiff finished the course of rehabilitation, that he reached maximum medical achievement improvement, that he has not received active treatment since then, that the subsequent sick leave was expressed to be leave pending assessment of MAB, that his lifting ability on 16 August 2013 was close to his pre-accident work requirement, I am of the view that his residual pain was limited to occasional mild pain at the end of September 2013 only.
67. That said, I should further consider his development of adjustment disorder since mid-2013 necessitating medical treatment from 28 November 2013. In view of his exaggerated injuries which formed the basis of the assessment of the two psychiatric experts and were regarded as an important stressor causing his psychiatric problem, I would allow further sick leave from the referral to psychiatric clinic on 30 September 2013 up to 28 February 2014,i.e. 5 months when his mental symptoms were most intense.
68. In the premises, I find that he was able to return to work for light duties on 1 March 2014. He in fact did not receive any active serious treatments for his back pain resulting from the Accident or psychiatric problem[4]
69. On the issue of whether he could return to his pre-accident work duties in full, both psychiatric experts gave positive answer.
70. Dr Chun opines that the plaintiff is able to return to his full pre-accident duties and to do frequent carrying/ lifting of 25-30 pounds and occasional carrying/ lifting of 50 pounds.
71. In the Joint Orthopaedic Report, Dr Lam said that heavy lifting over 15 to 20 kg could cause discomfort or even pain in the plaintiff’s low back. He nevertheless expressed that with more self-exercises to strengthen the back, and a gradual resumption of lifting duties (avoiding heavy-lifting over 15kg initially; allowing more breaks for rest or stretch after prolonged work; gradually stepping up), the plaintiff should be able to gradually return to his pre-accident job with reduction in work capacity (need breaks for rest or stretch after prolonged manual work; object heavier than 18-20 kg to be lifted with assistance; reducing portion of manual tasks).
72. The experts' opinion should be reviewed in light of my findings of the plaintiff’s exaggerated injuries and disabilities as well as his untrue description of his weight-lifting demand in his pre-Accident work, namely, from 1 kg up to more than 20kg[5]
73. Under cross-examination, the plaintiff confirms that his pre-accident daily routine involved not only carrying of goods but also indoor clerical work. The weight that he needed to handle was from 1 kg up to but, contrary to what he told the two orthopaedic experts, no more than 20 kg. There were usually two transportation workers on board a lorry, working with trolley.
74. Given the plaintiff’s lifting capacity was assessed to be up to 31 kg on 17 June 2015 which was far more than his pre-accident lifting capacity requirement and that he should have sufficient time for self-exercises to strengthen his back and gradual resumption of lifting duties from 1 March 2014 to 17 June 2015, I am of the view that he was able to resume his pre-accident work in full no later than 18 June 2015.
75. I should add that the fact that he has been assigned to perform light duty work by the defendant was an arrangement of an employer for its employee who alleged to have been suffering from persistent back pain as a result of a work related accident which cannot amount to a valid proof of the plaintiff’s capability carrying an effect of overriding the medical evidence and other factors.
Discount for pre-existing degeneration
76. As to the pre-existing degenerative changes of the plaintiff’s lumbar spine, Dr Lam says that it should account for 20% of the plaintiff’s disabilities. Mr Shum has no strong argument on the plaintiff is in the second scenarios as described in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 that there is a possibility that some other event, or natural progression of his pre-existing condition would have brought about the plaintiff’s present state. He however submits that the pre-condition should only discount the damages for pain, suffering and loss of amenities and post-trial loss of income for it is unlikely that it would have any adverse effect on the plaintiff and his work prior to the assessment of damages.
77. I agree that the degenerative condition had no symptoms which worried the plaintiff before the Accident. That said, degeneration is an on-going deteriorating process which would not stop at a point in life. The prevalence of degenerative changes increases with advancing age. The fact that the plaintiff had multiple desiccated and bulging discs in his early 30s’ and the nature of his profession takes his case into the second category and possibly into the third as defined in the case of Chan Kam Hoi.
78. In my view, there is a strong possibility that the natural progression of the pre-accident condition would lead to disability and loss in the absence of the Accident before 1 March 2014. To reflect the presence of the pre-existing condition for which the defendant was not responsible, I would adopt a reduction of 25% of the damages which the plaintiff would otherwise have awarded in the absence of the pre-existing condition for pain, suffering, loss of amenities and for all the loss of earnings, at a rate higher than Dr Lam’s suggestion to allow adjustment for the plaintiff’s untrue allegations of his injuries, pain and disabilities.
Pain suffering loss of amenities
79. For assessing the damages for PSLA, Mr Chan suggests that the appropriate award should be in the region of HK$150,000 in reliance on the cases referred in paragraph 71 of Pak Siu Hin Simon v J.V. Fitness Limited unreported HCPI 574/2014 Hon. Au-Yeung J 15 May 2017, including : -
(a) In Lau Wa Ying v Caritas- Hong Kong DCPI2885/2014, unreported 6 March 2017, the plaintiff suffered from a soft tissue injury of back and major depressive disorder. There were pre-existing degenerative changes in the spine and strong elements of exaggerations of injuries and disabilities. The Court would have awarded HK$120,000 for PSLA if liability was established.
(b) In Tse Sin Yee v Wing Wah Cake Shop Limited DCPI 1618/2010, unreported 19 July 2011, the plaintiff sprained her back and thigh while lifting trays of cakes from the floor, she suffered from adjustment disorder with anxiety and depressive mood. The Court awarded sick leave of 609 days and PSLA at HK$175,000.
80. I have also considered the cases referred by Mr Shum including :
(a) In Chau Chin To Chadow v Wing Fung Financial Group Limited HCPI 163/ 2015 unreported 1 August 2017, the plaintiff suffered from soft tissue injury of the back after heavy-lifting. He had on and off low back pain and would have difficulty in manual lifting. He was allowed 405 days sick leave. PSLA at HK$250,000 was allowed.
(b)In Wong Yun Chiu v Union Printing Company Limited HCPI 282/2009 unreported 29 July 2011, the plaintiff suffering from an asymptomatic degenerative spine had back contusion or sprain with soft tissue involvement causing persisted and occasional moderate/ severe pain. The accident has triggered system of the low back pain. He was awarded PSLA at HK$200,000.
(c) In Altaf Ahmed v Innovative Network Engineering Company Limited & Anor HCPI237/2008 unreported 21 December 2010, the experts regarded the several levels of lumbar disc protrusion were degenerative disc prolapses and one of the degenerative disc was aggravated by the injury. PSLA was allowed at HK$280,000.
81. I seek no assistance from the cases of Chan Yuet Keung v Harmony (International) Knitting Factory Limited [2010] 5 HKLRD 599 (an extruded disc compressed on the left descending nerve root); Ng Koon Ki and Hilti (Hong Kong) Ltd & Another [2004] 2 HKLRD 634 (acute prolapsed disc with nerve root impression) and Tsang Chiu Yip v Ho Kwok Leung HCPI 305/2013 unreported 29 February 2016 (multiple injuries.) for the injuries involved are more serious than the present case.
82. Discounting for the degenerative pre-condition, and taking into account inflation of damages, the injuries of the plaintiff, orthopedically and psychiatrically, and all evidence in the round, I allow HK$210,000.
Pre-trial loss of earnings
83. Since the plaintiff received salaries during his sick leave period, his pre-trial loss of earnings is agreed to be the differences between the actual earnings received by the plaintiff and the earnings he would have received but for the Accident. Mr Shum asks for pre-trial loss of earnings be calculated from 1 January 2013.
84. For assessment of loss of earnings, the parties have no disagreement on the following matters [6]
(a) the actual annual earnings of the plaintiff are as follows
(i) HK$108,401 for year of 2013
(ii) HK$131,620 for year of 2014
(iii) HK$132,939 for year of 2015
(b)the earnings he would have received but for the Accident should be the earnings of Staff A in the employ of the defendant
(i) HK$158,345 for year of 2013
(ii) HK$163,685 for year of 2014
(iii) HK$170,688 for year of 2015
(c) the monthly earnings : annual earnings dividing by 12 months
(d)taking average working days per month as 26 days
85. the plaintiff’s pre-trial loss of earnings are as follows :
(a) for year of 2013 :
(158,345 – 108,401) = 49,944
(b) for year of 2014 :
(163,685 – 131,620) = 32,065
(c) up to 17 June 2015 :
(working days from 1st to 17th June is 15 days)
(170,688 – 132,939)/ 12 x (5+ 15/ 26) = 17,553
The Pre-trial loss of earnings is HK$99,562
The Pre-trial loss of MPF is HK$99,562 x 5% = HK$4,978
86. Applying a discount of 25% for his pre-existing degeneration, the plaintiff’s pre-trial loss of earnings is : -
HK$99,562 x (1-25%) = HK$74,672
the Pre-trial loss of MPF is : -
HK$4,978 x (1-25%) = HK$3,734
Post-trial loss of earnings
87. It follows from my finding that I make no award for future loss of earnings. I find that the residual pain and discomfort of his low back, if any, would not have prevented him from returning to his pre-accident employment with full capacity.
Medical and other expenses
88. Medical and travelling expenses are agreed at HK$7,000.
Employees’ compensation
89. On 4 May 2015, the Plaintiff accepted employees’ compensation of HK$560,000 under action DCEC no. 2241 of 2014.
Summary of quantum
90. I summarize the awards as follows : -
(a) PSLA
HK$210,000
(b) Pre-trial loss of earnings
HK$74,672
(c) Pre-trial loss of MPF
HK$3,734
(d) Post-trial loss of earning
HK$0
(e) Post-trial loss of MPF
HK$0
(f) Medical & travelling expenses
HK$7,000(agreed)
Sub-total
HK$295,406
Less Employees’ Compensation
HK$560,000
damages to be awarded
HK$0
Interest
91. As the award is below the employee compensation the plaintiff has already received before the service of the writ (issued on 5 August 2015), no interest will be awarded.
Conclusion
92. Having considered all the evidence and the submissions of both parties, I assess the total amount of damages in this case is less than the amount of employees’ compensation already received by the plaintiff and therefore, no amount is awarded.
Costs
93. I make a costs order nisi that the plaintiff do pay the costs of this assessment including all costs reserved, to the defendant to be taxed on High Court scale, with certificate of counsel, to be taxed if not agreed. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.
94. I am grateful to both counsel for their assistance to the court.
(M. Lam)
Master of the High Court
Representation :
Mr Erik Shum, instructed by Yip, Tse & Tang, assigned by Director of Legal Aid, for the plaintiff
Mr Daniel K K Chan, instructed by Winnie Mak, Chan & Yeung, for the defendant
[1] According to the medical report of Dr Koo of the Orthopaedic Clinic dated 9 August 2016
[2] Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 §§17-18
[3] Chu Kam Hung v Shing Lee (Meat Supplies) Hong Ltd unreported HCPI 802/2013 Hon. Bharwaney J 26 June 2015 §47; Chu Kwong Fu & Anor v Wonder Gold Investment Ltd unreported HCPI 295/2014 Master Leong 21 May 2015 §18-23
[4] i.e. his treatment at the AED on 21 October 2014 was for neck pain and on 16 March 2015 for sprained back after pushing a chair on 16 March 2015.
[5] see §135 of the Joint Orthopedic Expert Report.
[6] §43 -44, 51 of the plaintiff’s opening submissions