YING, KA CHUN v. J.V. FITNESS LTD (in liquidation) AND ANOTHER

HCPI 58/2018

[2021] HKCFI 3349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 58 OF 2018

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JUDGMENT

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1.  This is the Plaintiff’s claim for damages arising from the back injury he sustained in a slip-and-fall accident (the “Accident”), which occurred at about 9:45 p.m. on 31 January 2015 (Saturday) inside the changing room (the “Changing Room”) of the 1^st Defendant’s fitness centre at Parkvale, 1060 King’s Road, Quarry Bay, Hong Kong (the “Fitness Centre”).

2.  The 1^st Defendant (in liquidation) was the Plaintiff’s employer and the operator of the Fitness Centre. The 2^nd Defendant was a cleaning contractor of the 1^st Defendant. The Defendants disputed both liability and quantum in this action.

3.  Miss Susanna Leong appeared for the Plaintiff and the 1^st and 2^nd Defendants were represented by Mr Gary Lam and Mr Tam Nok Ting respectively.

The Plaintiff

4.  The Plaintiff was born in Hong Kong on 17 June 1989 and he was educated up to Form 5.  He had previously worked as a chef in various restaurants and also operated his own business. At his leisure, he would like to exercise in a gymnasium or fitness centre. In September 2012, he joined the 1^st Defendant as a personal trainer.  He was deployed to the Fitness Centre.

5.  Gradually, he acquired internal accreditation by the 1^st Defendant for boxing and also obtained certificates issued by the International Personal Trainer & Fitness Academy (IPTFA), which offered local courses.  He was qualified as a trainer for a wide range of physical activities including weight-lifting, boxing, kicking, stretching TRX (a type of elastic bands for workout) and other exercises such as shuttle run, squat jump and static jump, chin up, etc.

6.  He was divorced and had a 7-year-old son as of the date of his witness statement (dated 7 November 2019).  Prior to the Accident, he worked 26 days a month and his official working hours were from 11:00 am to 12:00 midnight. Between 10:00 am and 12 noon, he would generally attend to paperwork and undergo physical training himself.  He would normally have 6 to 7 trainees in one day.

7.  The Plaintiff was promoted to Personal Trainer 6 on 1 November 2014 but his basic salary of HK$8,000 remained unchanged.  The main benefit of the promotion was that his share of Service Commission of the fees paid by the trainees (about HK$800 per trainee per session) was adjusted upward to Level 1 (30%) or Level 2 (40%) depending on the level of total income generated by him.

8.  However, in order to qualify for the Service Commission, he also had to meet sales targets of HK$200,000 per month by selling training packages. Apart from the Service Commission, he was qualified for sales commission ranging from 4% to 12% depending on the level of sales achieved.

9.  The Plaintiff explained that 70% of his monthly income was from personal training sessions and about 30% from sales.  In the Form 2 dated 12 February 2015, the 1^st Defendant admitted that the Plaintiff’s income for December 2014 was HK$8,000 + $78,981.84 = HK$86,981.84 and his average income over the 12 months preceding the Accident was HK$73,984.50.

10.  The Plaintiff’s income for December 2014 shown in the Form 2 tallied with that stated in the List of Earnings (dated 8 March 2016) filed by the 1^st Defendant in DCEC 145/2016. With reference to a computer printout entitled “Payroll Item History Report” produced by the 1^st Defendant, Miss Leong explained, which I accept, that HK$86,981.84 was inclusive of the employee’s maximum MPF contribution (ie HK$1,500 per month) but exclusive of the employer’s MPF contribution in the like amount.

The Fitness Centre and the Changing Room

11.  The Fitness Centre occupied 2 floors of the building and each floor was about the size of 2 standard court rooms. The Accident happened in the Changing Room, which was located on the upper floor, consisting of a shower area, a sauna and a changing area with a few banks of lockers. There was a vanity unit comprising of a work bench with mirror where a few hair-dryers were installed for use by customers. Notably, the vanity unit was at a slanting position inside the changing area (see the architectural plan at Exhibit P2 marked orange by Mr Marco Chan, the Plaintiff’s witness).

12.  The Accident happened at a location adjacent to a metal bench located in the changing area, marked by the Plaintiff with a cross in black on the photograph (Exhibit P1A) and the rough sketch (Exhibit P1B).  It was also shown on Exhibit P2.

13.  On the Plaintiff’s evidence, the locker area was about the size of two-thirds of a court room and the spot where the Accident occurred was about 30 feet from the entrance to the shower area.

14.  It is not disputed that the entrance to (or exit from) the shower area was equipped with a water absorbent mat located right at the edge of the last of a few steps (leading down from the shower area to the changing area) extending to about 1 to 2 metres (about 3 paces) into the changing area. Similarly, there were water absorbent mats installed at the aisles (both vertical and horizontal) inside the shower area to minimize the amount of water, possibly dripping from the naked bodies of customers, being carried into the changing area.

15.  On the evidence of the Plaintiff and Mr Chan, it was a common occurrence for the part of the changing area close to the showers to be wet to some extent.  However, the changing area near the lockers and vanity unit, where the Accident occurred, was normally quite dry save on a few rare occasions. That said, there was also a dispenser for drinking water located inside the Changing Room, which might be a source of water spillage.

16.  In general, the Plaintiff and Mr Chan were aware of the need to watch out for wetness in the Changing Room to avoid slip-and-fall accidents. The Plaintiff also said, if he were to see a patch of water on the floor giving rise to a risk, he would either alert the receptionist or place a warning sign next to it and page the cleaner on duty to mop it up.

The Cleaning System at the Changing Room

17.  The 2^nd Defendant was an independent contractor engaged by the 1^st Defendant to carry out cleaning work at various fitness centres located around Hong Kong. The undisputed evidence of Mr Tang Pui Sing, Executive Director of the 2^nd Defendant, was that:

(a) Prior to commencement of work, a work schedule would be drawn up for the consideration of the relevant fitness centre operated by the 1^st Defendant;

(b) Upon a work schedule being agreed, the 2^nd Defendant would deploy manpower to each fitness centre to carry out the work accordingly. 

(c) The items of work enumerated in the work schedule dictated the priority of work. However, the cleaning workers had been instructed that whenever they came across a patch of water on the floor creating a risk of people falling, they should take steps to mop up the water, when the circumstances allowed them to do so. 

(d) In contradistinction to cleaning work to be carried out in a vacant premises, the cleaning service provided by the 2^nd Defendant had a “hospitality” element in that the service was to be performed when there were customers around. Hence, due consideration would need to be given to the comfort and convenience of the customers of the 1^st Defendant inside the Fitness Centre.

18.  Under the contract between the 1^st Defendant and the 2^nd Defendant, the manpower deployment at the Fitness Centre was as follows:

(1) AM Shift – 1 male cleaner and 1 female cleaner from 8 am to 12 noon.

(2) PM Shift – 1 male cleaner and 1 female cleaner from around 3 pm to 12 midnight

(3) Mid Shift – 1 cleaner around 1 pm to 5 pm

19.  The work schedule applicable to the male cleaner on PM Shift at the Fitness Centre was as follows:

3:15 – 4:15	Cleaning in the Changing Room	Sweep and mop the floor in the male changing room. Clear rubbish in the toilet (and put in towel room). Clean the toilet. Check and add water in the sauna bucket and add mint to the steam room (check the temperature). Replenish all items, including the refill of shower gel, shampoo, conditioner, paper towel, and tissue paper. Clean the dressing tables and mirror [ie the vanity unit]
4:15 – 5:30		Mop the floor in the dance studio. Clean the mirrors
5:30 – 6:30		Meal break
6:30 – 9:00	Cleaning in the Changing Room	Keep the urinals and toilet areas clean. Clean the inside, outside and top of locker cabinets in the changing room. Replenish all items, including shower gel, shampoo, conditioner, paper towel, and tissue paper. Clean the dressing tables and mirrors.
9:00 – 10:30	External Areas	Clear rubbish in the office and throw it in the refuse collection point together with the rubbish stored in the towel room.
10:30 – 11:00	External Areas	Wipe the racks and mirrors in the dumbbell area. Mop the floor in the cycling room.
11:00 – 12:15	Cleaning in the Changing Room	Replenish all items, including the refill of shower gel, shampoo, conditioner, paper towel and tissue paper. Thoroughly clean the sauna room and steam room. Roll up the plastic floor mats for rinsing. Add hanger.

20.  The work schedule for the AM Shift was not put before the Court but Mr Tang confirmed that there was also one round of cleaning of the floor inside the Changing Room in the morning. Significantly, although it was not spelt out in the work schedule, it was the Plaintiff’s evidence that the cleaner would also mop the floor of the Changing Room towards the close of business of the Fitness Centre. 

21.  No explanation was proffered by the 2^nd Defendant as to the absence, as witnesses, of the cleaner(s) on duty at the Changing Room and the Fitness Centre on the day of the Accident. The Court is therefore deprived of the benefit of their evidence. However, for reasons which will become apparent, the Accident occurred due to the transient presence of a patch of water in the Changing Room when the cleaner was not around. I therefore would not draw any adverse inference against the 2^nd Defendant.

22.  Having said that, there is a dispute between the 1^st Defendant and 2^nd Defendant as to when the 2^nd Defendant was notified of the Accident.  The 1^st Defendant’s case was that the 2^nd Defendant was verbally notified about 1 week after Accident. This is denied by the 2^nd Defendant. Further, there was a letter dated 7 July 2015 presumably sent by Cunningham & Lindsey, the Loss Adjuster, but Mr Tang denied having received the letter.

23.  By and large, this dispute between the Defendants in this regard has fallen by the wayside since no time-bar issue was taken by the 2^nd Defendant as against the Plaintiff, although the 2^nd Defendant was joined as a party outside the limitation period. Further, there are no contribution proceedings as between the 1^st and 2^nd Defendants.

24.  Mr Tang, who was a member of and had access to all fitness centres operated by the 1^st Defendant, portrayed that the peak hours for use of the changing rooms by customers in the various fitness centres were from about 6:00 pm onwards and the flow of customers would gradually ease off towards 10:30 pm.

25.  However, the Plaintiff explained that the Fitness Centre was usually quieter after 8:00 pm on the weekends. He also said there would only be a few people around the time of the Accident. This tallies with the evidence of Mr Chan. I accept their evidence in this regard.

The Accident

26.  The Plaintiff said he was walking towards a locker in the aisle of the metal bench when the Accident happened. From the description given by Mr Chan, in order to access his locker, the Plaintiff would have entered the Changing Room from the door on the right (as depicted in the rough sketch at Exhibit P1B and the architectural plan at Exhibit P2) and then made a left turn to reach the Accident location, which was at very close proximity to the right corner of the slanting vanity unit.

27.  From the 2 photographs taken a couple of minutes after the Accident, the patch of water causing the Accident was located right at the mouth of the aisle, where the metal bench (with a bank of lockers sitting on top) was located. Again, this was at very close proximity to the right corner of the vanity unit. In this regard, I prefer the evidence afforded by the architectural plan over the rough sketch. 

28.  This is a matter of some significance because Mr Chan said, when he arrived at the vanity unit for grooming, he did not notice any water on the floor.  The Accident occurred a few minutes later. During this time only a few people were in this area of the Changing Room. Thereafter, he saw the Plaintiff in the mirror and was turning around to greet him and by chance witnessed the Plaintiff slipping and falling. Mr Chan gave vivid evidence that the back of the Plaintiff’s right flank hit the corner of the metal bench (about 1 foot high from the floor).

29.  Given the close proximity between the vanity unit and the Accident location, a person walking from the door to the vanity unit would have walked past the fringe of the patch of water (measuring about 1 feet by 1 feet), if it had been there. The fact that Mr Chan did not see the patch of water tends to suggest that it was not there when he entered and approached the vanity unit a few minutes prior to the Accident. Unlike what was depicted in the photographs taken days after the Accident by the Loss Adjuster at a location closer to the shower, the patch of water was not accompanied by any wet footprints.

30.  According to the 2 photographs taken shortly after the Accident by the reception staff [Bundle G/404-5], the water streak leading from the patch of water runs perpendicular to the aisle, which is indicative that the Plaintiff fell before he turned left into the aisle. Since the Plaintiff said during cross-examination by Mr Tam that he did not struggle or try to regain his balance as he just slipped and dropped to the ground, I fail to see how the back of his right flank could have hit the corner of the metal bench as the Plaintiff claimed, which was seemingly corroborated by Mr Chan.

31.  The fact that the Accident occurred before the Plaintiff turned into the aisle also does not sit comfortably with his landing position as shown in the said 2 photographs. One of the photographs [Bundle G/405] shows the Plaintiff sitting on his buttock in a position (well into the aisle) facing outward and towards the mouth of the aisle.  His left thigh was rotated outward with the knee bent and lying laterally on the floor. His right leg was straight and the back of his right knee was partially pressing on his left shoe.

32.  In any case, given my conclusion that the Accident happened before the Plaintiff turned left into the aisle, he could not have hit hard on the corner of the bench. If anything, it is more likely to be a glancing blow and he must have moved his position a little after landing. One possibility is that he might have tried to arrest the fall by pressing on the bench as he fell. That explains why he landed facing outward.

33.  To some extent, the foregoing analysis tallies with the evidence of Dr Johnson Lam (Specialist in Orthopaedic) called by the Plaintiff. In examination-in-chief, Dr Lam’s attention was drawn to the fact that the metal bench was fixed in position which caused him to postulate that the energy from the impact with the corner added to the Plaintiff’s back injury. 

34.  However, in cross-examination by Mr Lam, for the 1^st Defendant, and upon being shown the said photograph depicting the Plaintiff’s landing position, Dr Lam somewhat changed his evidence in that there were many possibilities as to how the Plaintiff’s body might come into contact with the corner of the bench depending on the angle of impact and whether the Plaintiff’s body managed to slip through. Overall, he said the impact with the corner of the bench was not particularly relevant.

35.  Notably, the assertion that the Plaintiff had hit the corner of the bench during the Accident was mentioned for the first time when the Plaintiff consulted Dr Wong Chin Hong on 4 February 2015. Thereafter, it was also mentioned in a short statement of Mr Chan taken by the Loss Adjustor on 7 February 2015. The Plaintiff claimed that he had mentioned this fact to the doctor who examined him at the Accident & Emergency Department of Pamela Youde Nethersole Hospital (A&E PYNEH) at about 23:12 hours. However, there was no such entry in the A&E record.  This reinforces my analysis that, if anything, the impact with the metal bench was likely to be a glancing blow without much consequence.

Analysis on Liability

36.  The Plaintiff has pleaded a wide array of causes of action founded upon the 1^st Defendant’s implied duty of care under the contract of employment and the provisions under the Occupational Safety and Health Ordinance (Cap. 509).  However, this case falls squarely within the remit of occupier’s liability of the 1^st and 2^nd Defendant respectively. The other duties of the 1^st Defendant relied upon by the Plaintiff does not add anything.

37.  In so far as the 2^nd Defendant seeks to argue that it was only given reasonable access to the Fitness Centre to carry out cleaning work and should be not regarded as an occupier, I reject the argument. I am of the view that the 2^nd Defendant had a sufficient degree of control over the Changing Room so that it was a joint occupier with the 1^st Defendant.  

38.  Miss Leong for the Plaintiff relied quite heavily on the observation of Megaw LJ in Ward v. Tesco Stores Ltd [1976] 1 WLR 810 which was cited at length by Mayo VP in Cheung Wai Mei v. The Excelsior Hotel (Hong Kong) Limited, CACV 38/2000, unrep, 22 November 2000 (at p.7) as to the importance of the evidence from the Defendants pertinent to the system of cleaning.

39.  Upon enquiry, Miss Leong rightly confirmed that she was not seeking to argue a presumption of negligence on the basis of the occurrence of the Accident, which was an unusual event. In So Wang Chun v Rainforce Limited, HVPI 64/2006, unrep, 9 January 2008, Sakhrani J said :

“15. Both counsel relied on the principle set out in the judgment of Megaw LJ in Ward v. Tesco Stores Ltd [1976] 1 WLR 810 at 815 :

‘It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault.’

16. It was also not disputed that what I said at paragraph 17 of my judgment in Wat Kwing Lok v. The Kowloon Motor Bus Company (1933) Ltd (HCPI 936/2005, 20 November 2007) was applicable :

‘The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.’” (emphasis added)

40.  Along the same vein, Staughton LJ in Holmes v. Vange Scaffolding & Engineering Co. Ltd (1989) WL 1720547, 19 July 1989 said:

“So far as negligence at common law is concerned, we were referred to the case of Ward v. Tesco Stores Limited (1976) 1 Weekly Law Reports 810. I do not read that case as deciding that in an ordinary common law action for personal injuries the plaintiff does not have the burden of proving, first, that he suffered an accident, secondly that there was a breach of duty by the defendant, and thirdly that the breach of duty caused the accident. It would be novel doctrine if Ward's case decided that, and would deserve greater prominence in legal history than the first volume of the Weekly Law Reports. As I read it, the judgment of Lord Justice Lawton refers first to a rebuttable presumption of fact derived from a quotation from Chief Justice Erle in Scott v. London and St. Catherine Docks Co. (1865) 3 H & C 596, 601.

‘where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care.’

Lord Justice Lawton held that that presumption was applicable where a quantity of spilt yoghurt was shown to exist on the floor of a supermarket. After mentioning that presumption, he continued:

‘The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff.’

So it was not a case of the plaintiff there being absolved from any burden of proof; it was held that she had discharged it.” (emphasis added)

41.  Relying on the work schedule, Miss Leong spared no effort in her submissions on the lack of a system for cleaning the Changing Room altogether especially after 9:00 pm. However, this is to ignore the evidence that there would be a round of cleaning in the morning according to Mr Tang and another round towards the close of business according to the Plaintiff.

42.  The focus of Miss Leong’s submission was on the lacking of regular inspection for the detection of risks created by patches of water in the Changing Room. However, when being asked what would be an acceptable frequency of inspection, Miss Leong could not give a definitive answer but emphasized on what she characterised as a total absence of any system of inspection and cleaning.

43.  However, the uncontroverted evidence of Mr Tang is that according to the work schedule, a cleaner would be stationed inside the Changing Room between 6:30 pm to 9 pm. Further, cleaners had been instructed to mop up patches of water in the Changing Room as the circumstances permitted.  Remarkably, the cleaner’s duty during this period include:

“Clean the inside, outside and top of lockers cabinets in the changing room. Replenish all items, including shower gel, shampoo, conditioner, paper towel, and tissue paper. Clean the dressing tables and mirrors [the vanity unit]” (emphasis added)

44.  The Changing Room is about 2/3 of the size of the court room. In the course of carrying out the work as dictated by the work schedule, the cleaner on duty would have been in the area near the vanity unit and the aisle of the lockers in the Changing Room including the very location of the Accident. In my view, this coupled with the instructions to watch out for patches of water and to mop up whenever practicable, would constitute a reasonable system of inspection and cleaning.

45.  Further, according to the work schedule, the cleaner would have to leave the Changing Room to clear rubbish in the office at or around 9:00 pm. He would also be walking past the location of the Accident and would also have been able to detect any patch of water if it were there. 

46.  That said, common sense dictates that the priority of mopping up of the floor required a judgment on the part of the cleaner in light of the exigencies of other services and manpower.  From the 2 photographs, it is clear that the patch of water causing the Accident was not extensive at all. It was a very light patch of dampness (measuring about 1 foot by 1 foot).

47.  On the facts of this case, it would be too exacting to hold the occupiers liable even if the cleaner on duty had not detected the small and light patch of wetness, which on the Plainitff’s evidence was a rare occurrence, between 9 pm and 10 pm due to other exigencies of work around the Fitness Centre or the presence of customers in the changing area, particularly in light of the fact that there would be a last round of cleaning prior to the close of business. I find no breach of duty on the part of the 1^st and 2^nd Defendants.

48.  More importantly, I am of the view that the patch of water was likely to have come into existence during the few minutes after Mr Chan entered the Changing Room and prior to the Accident. Even if a system of regular inspection (say every 30 minutes or an hour) had been put in place, it would not have resulted in the detection and removal of the patch of water. Bearing in mind the burden of proof as to causation, I am of the view that the Plaintiff’s case also fails on this count.

49.  For the sake of completeness, Miss Leong also criticised the lack of water absorbent material, at least along the passageway in the locker area of the Changing Room.  I reject the argument in light of the following consideration:

(a) Wetness in the locker area was admittedly rare;

(b) The Changing Room floor was made of non-polished tiles which were normally slip-resistant;

(c) The collection of moisture by the water absorbent material might be spread by customers walking around creating further unnecessary risk;

(d) It might be more efficient to mop up the floor and the extensive use of water absorbent material would give rise to concerns about hygiene of the Changing Room since the mats would be more difficult and more time consuming to clean.

50.  As to the manning scale, Mr Tang explained that given the small profit margin, it would not be feasible to increase the manpower to the Fitness Centre. Notably, the coverage during the PM Shift was maximized by having 2 cleaners attending the male and female changing rooms respectively, with their meal breaks staggered.

51.  In the context of a reasonable system and the standard of care, I share the sentiment expressed by HH Judge Simon Leong in Law Wat Tai Peter v. Secretary for Justice acting for the Hong Kong Police Force, DCPI 1469/2006, unrep, 9 October 2007 that :

“35.  In a different context, the Court of Appeal spoke of the standard of care to be expected from an employer towards the safety of his employee: see Cheung Kin Kwok Alen v Lau Kam Chee & Anor [2004] 3 HKC 227 at 230D-G, per Rogers VP (agreeing with the trial judge’s reference to Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783):

From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know;……he must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.  If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.” (emphasis added)

52.  I am therefore of the view that in all circumstances, the manning scale deployed by the 1^st and 2nd Defendants to the Changing Room was reasonable in averting any undue risk of injury by slipping and falling.  There is no breach of duty on this count either.

Contributory Negligence

53.  The foregoing should be sufficient to dispose of the case. For the sake of completeness, if liability had been established, I would have found the Plaintiff to be liable to the extent of 50% on account of contributory negligence.

54.  On the Plaintiff’s own evidence, he was generally aware of the wetness in the area close to the shower room and that the locker area was liable to be wet and slippery though it had only occurred on rare occasions. The Plaintiff worked at the Fitness Centre almost every day and he should be taken to be very familiar with the layout and condition of the Changing Room.

55.   In so deciding, I have taken into consideration the approach of court in the various similar cases cited by counsel including HH Judge Leong in Lai Wai Tan Peter (supra) at Para. 40 finding 25% contributory negligence; Yau Tsz Hin v. Broadway Theatre Company Limited, HCPI 674/2010 (unrep), 3 April 2013 at para. 68, finding 50% and Au-Yeung J in Pak Sai Ming v. J.V. Fitness Centre, HCPI 1387/2014, unrep, 10 September 2019 , at Para. 43 holding 60% contributory negligence.

56.  Miss Leong relied on the decision of Anthony Chan J in Or Bik Yuk v. Maxway Corporation Limited trading as Cheung Hing Foods Mart, HCPI 621/2017, unrep, 12 November 2019. However, the facts of that case were that the pavement outside the defendant’s store was rendered damp and littered with pieces of rubbish and vegetables. The defendant resorted to putting warning signs but nothing much was done to abate to hazardous condition despite their awareness. In the premises, the learned judge found that the Plaintiff could not be blamed for walking on the pavement despite her awareness of the condition. Further, it would appear that contributory negligence was not explored in the evidence. I am of the view that this case is distinguishable.

57.  In this case, if the Plaintiff had exercised reasonable care in ensuring his safety by maintaining a proper lookout, he would have detected the patch of water and there would have been no difficulty at all for him simply to walk around it in a safe manner.

Injury and treatment

58.  Shortly after the Accident, the Plaintiff was conveyed to A&E PYNEH for medical treatment. He was seen at about 22:34 hrs by the triage nurse on the complaint of “S/F (slip and fall), LBP (low back pain) Rt LL numbness (right lower limb numbness)”. Upon examination by the doctor, it was documented:

“S/F at bathroom after work – LBP after fall – bilateral lower limb movement limited by LBP – No numbness/weakness”.

59.  There is no fracture shown upon X-Ray examination and alignment of the Lumbar-Sacral Spine was normal. He was given an injection of Toradol 30 mg (a painkiller) at about 23:12 hrs. Upon observation at 23:41 hrs, it was recorded “pain relieved – able to walk – no sensory or power deficit”. He was given 4 days sick leave and was discharged.

60.  Thereafter, the Plaintiff was seen by Dr Wong Chin Hong (“Dr Wong”) on 4 occasions from 4 February 2015 to 26 February 2015. Dr Wong documented as follows:

04 February 2015

Diagnosis : low back accidental injury

Complaint : Injury 31 Jan 2015 – slipped and fell backward, low back knocked against corner of a metal bench, ambulance to PYNEH – XR apparently no fracture

Findings : tender midline lumbar spine - spasm paraspinal muscle+

No discolouration, no deformity

Stiff back – flexion 20 degrees complains of back pain

Action : referred for physiotherapy

10 February 2015

. . .

Complaint : increased low back pain – radiating down the lateral thigh to right lateral calf

No sphincter disturbance

Findings : stiff lower back – guarding +

Flexion 20 degrees – c/o right lateral thigh pain

Action : referred for MRI

16 February 2015

. . .

Complaint : persistent low back pain – numbness in thighs reduced

Findings : local low back tenderness

MRI : L/4/5 PID [Prolapsed Intervertebral Disc] with annular tear, no nerve compression

Action referred to physiotherapy

26 February 2015

. . .

Diagnosis : low back accidental injury

Complaint : persistent pain

Findings : tender over L5/S1 midline and left lower paralumbar region

Action : continue physiotherapy

61.  Upon referral by Dr Wong, the Plaintiff underwent a Magnetic Resonance Imaging (MRI) on 11 February 2015.

62.  The Plaintiff said that he found Dr Wong not very professional in that he was unsympathetic to his complaints. Upon referral by a friend, who had a previous orthopaedic accident, he started to consult Dr Richard Wong (Specialist in Orthopaedic) from 4 March 2015 onward.

63.  Between 4 March 2015 and 23 March 2016, the Plaintiff consulted Dr Richard Wong 40 times (i.e. about twice per month).  At the first consultation, it was documented as follows:

“Consult for IOD [Injury on Duty] on 31/1/2015, S/F with back contusion by pointed corner of bench.

Immediate onset of pain, could not move.

Symptoms

Bilateral LL numbness, now R LL more

Back pain now mechanical in nature, more with erect posture. Relieved by lying down. No sphincter disturbance. Disturbed sleep. No physio performed. Admitted to PYNEH 31/1/2015 with X-Ray normal, analgesics given. MRI performed and showed L4/5 disc bulge with annular tear, no obvious neural compression (report only).

Assessment

Tenderness over whole lumbar spine

Paraspinal muscle spasm

Flexion of back touching mid-thigh only

LL power 4/5 both sides.

R L2 sensation decreased.

Reflexes normal

SLR 30 + ve, L 40 -ve.

64.  Throughout the consultations with Dr Richard Wong, similar symptoms were record. Analgesics and physiotherapy were prescribed. Sleeping pill (Zopiclone) was prescribed on and off from 11 March 2015 to 11 June 2015. Thereafter, the Plaintiff ceased to obtain medication from Dr Richard Wong since he was at the same time consulting the Orthopaedic PYNEH (since 27 April 2015) and Psychiatrist PYNEH (since 4 August 2015 upon referral by the orthopaedic doctor on 10 June 2015).

65.  Contrary to the stance taken by the 1^st Defendant, it would appear that the Plaintiff continued to have “prn (pro re nata or as needed) analgesics” which were continually prescribed by orthopaedic doctors at PYNEH. 

66.  Between 10 April 2015 and 30 April 2015, the Plaintiff attended 7 sessions of private physiotherapy at CellZ Health & Sport Clinic. Sitting tolerance was recorded as 20 minutes and SLR (Straight Leg Raising Test) was recorded at R 20 degrees with LBP and numbness over right anterior and lateral thigh and L 45 degrees with numbness radiated to anterior foot.

67.  In the interim, on 27 April 2015, the Plaintiff was admitted through A&E PYNEH on 27 April 2015 for increased low back pain in the evening. He was admitted to the Orthopaedic Ward for physiotherapy for 1 day and he requested to be discharged. Apparently, this is the episode recorded by Dr Richard Wong on 30 April 2015 that he heard a “pop” sound in his back during his sleep.

68.  Thereafter, the Plaintiff received in-patient physiotherapy at PYNEH for 10 sessions between 29 April 2015 and 8 July 2015. He was then followed-up by weekly out-patient physiotherapy starting from 13 July 2015.  Eventually, he was discharged on 16 November 2015 as the progress had plateaued and he was scheduled for medical assessment on 28 January 2016. Prior to his discharge, it was documented on 13 November 2015:

“Small PID L4/5, no compression.

SLR 70/70

Sphincter normal.

SL till MAB [Medical Assessment Board]”

69.  In parallel, Dr Richard Wong also documented that the Plaintiff’s back condition gradually improved. On 2 November 2015, it was recorded “SLR was R 60 +ve and L 70 -ve”. 

70.  On 28 January 2016, the Plaintiff attended the Employees’ Compensation (Ordinary Assessment) Board and was assessed to have suffered 9% permanent Loss of Earning Capacity on account of his back sprain resulting in prolapsed interverbal disc at L/4-5 with weakness, numbness and pain. Sick leave was initially certified for a period from 31 January 2015 to 28 January 2016 (see Form 7 dated 11 February 2016). This was extended to 31 March 2016 upon review (see Form 9 dated 16 June 2016).

71.  At the last consultation on 23 March 2016, Dr Richard Wong recorded:

“Pain similar, residual 50% this time.

R LL numbness same, on and off.

. . .

On regular analgesics, stock from HA [Hospital Authority]

Standing and walking tolerance 45 mins.

Sitting tolerance 45 min.

Assessment

Tenderness over mid to lower spine and R SIJ [Sacro-iliac Joint) pain.

Paraspinal muscle spasm still

Flexion of back touching upper shin.

R LL power 4/4, L side full

Sensation of whole R LL decreased.

Reflexes normal.

SLR R 60 +ve, L 70 -ve.

. . . .

Muscle Spasm

72.  Notably, paraspinal muscle spasm was recorded by Dr Richard Wong throughout the 40 consultations without specifying the method of examination or any variation in the degree of muscle spasm.

73.  In contrast, Dr Wong diagnosed muscle spasm only on 4 February 2015. Threafter, he documented guarding on 10 February 2015 and tenderness of the low back on 16 and 26 February 2015.

74.  When the Plaintiff was examined on 8 April 2015 by Dr  Peter Tio (engaged by the insurer of the 1^st Defendant), it was documented:

“2. Examination of Lower Back

2.1 Normal alignment

2.2 Lordosis preserved.

2.3 Diffused tenderness

2.4 No muscle spasm

2.5 Range of motion

(degrees)	Mr Ying	Normal
Flexion	40	>60
Extension	10	>15
Right lateral flexion	20	>30
Left lateral flexion	30	>30

3. Simulation Test [Waddell signs]

3.1 Vertex compression    :                     +ve

3.2 Simultaneous pelvis trunk rotation:    - ve

3.3 Shoulder elevation     :                      - ve

4. Neurological Examination of Both lower limbs

4.2 Grade 5/-5 lower limb power on both sides

4.3 Sensation reduced by 30 – 40% over anterior and medial right thigh

4.4 Knee and ankle reflexes preserved.

4.5 Girths of lower limb (cm)

	Right	Left
Thigh	44	43
Maximum	36.5	36.5

75.  For the purpose of the examination by Dr Tio, an X-Ray was taken on 8 April 2015 and it was reported “There is loss of lordosis, that could be due to muscle spasm” (see Report of Dr Tsang Tze Kan of Impact Medical Image Centre).

76.  However, around the same time, the Plaintiff consulted Dr Richard Wong on 9 April 2015 and “Paraspinal muscle spasm” was recorded.

77.  Since Dr Richard Wong has not been called to give evidence, the court does not have the benefit of his method of diagnosis.  However, upon the findings of Dr Wong and Dr Tio, I am of the view, and I so find, that the Plaintiff only had muscle spasms on occasion. It is likely that Dr  Richard Wong documented the complaints of “cramp” or tightness as reported by the Plaintiff. This would be more consistent with guarding, which is subjective.

78.  Dr Chun Siu Yeung (Orthopaedic Expert for the Defendant) accepted that the assessment of impairment would not be affected by the differentiation between “muscle spasm” and “guarding” in so far as the “guarding” was genuine. However, both Dr Chun and Dr Johnson Lam (Orthopaedic Expert from the Plaintiff) founded a degree of exaggeration on the part of the Plaintiff. This has to be factored into the assessment.

79.  Upon referral by the orthopaedic doctor on 10 June 2015, the Plaintiff was first seen by Dr Liu Kwong Sun (Psychiatrist, PYNEH) on 4 August 2015 with complaints of audio-hallucination, suicidal ideation (jumping from height) and loss of libido.  Altogether, there were 6 consultations up to 2 February 2016. By and large, the psychiatric symptoms have resolved with medications.

Extrusion or Protrusion of the L4/5 Disc

80.  The Plaintiff was jointly examined by Dr Johnson Lam and Dr Chun on 7 July 2016 which culminated in a Joint Orthopaedic Report (“JOR”) dated 21 October 2016. The main purpose of calling oral evidence from Dr Chun and Dr Lam was to resolve their opposing views as to the extent of the PID (prolapsed intervertebral disc) or bulge at L4/5 level and its impact on the diagnosis and prognosis of the Plaintiff’s back condition.

81.  My immediate reaction is that this issue ought to have been resolved by radiographical expert evidence. Unfortunately, leave has not been sought to adduce evidence from an expert radiologist.  In the circumstances, the court is left to work with the radiological opinions of Dr Lam and Dr Chun, which all parties agreed are admissible subject to the  issue of weight.

82.  Miss Leong relied heavily on the MRI report of Dr Chu Yiu Ching Tiffany (Radiologist) dated 11 February 2015, which reads as follows :

“FINDINGS

Lumbar spine has normal alignment. Sacralisation of L5 is noted. No focal bony destruction or abnormal signal change within the vertebral body is noted. The upper intervertebral discs maintain[s] their normal signal, no suggestion of desiccation changes is noted.

Mild diffuse disc bulging with element of posterior right paracentral disc extrusion (3mm) is noted at L4/5 level. Posterior annual tear is noted. No cauda equina or descending nerve compression is noted. The bilateral neutral foramens are narrowed more than on right but they are not unduly compressing onto the exiting nerve. The extraforminal exiting nerves are stretched by the disc bulge but not unduly compressed as well. Posteriorly, no hypertrophic changes of ligamentous flavum or facet joint is noted.

The rest intervertebral discs appear unremarkable. No posterior bulge or herniation is noted.

There is no paraspinal mass or fluid collection noted.

COMMENTS

“There is no focal bony destruction.

Sacralization [congenital fusion with S1] of L5 present.

Posterior disc bulge with element of extrusion is noted at L4/5 level. Posterior annual tear is noted. No cauda equina, existing or descending nerve compression is seen. Exiting nerves are stretched by the disc bulge in their extraforaminal portion but not unduly compressed. The rest of the intervertebral discs appear unremarkable.

There is no paraspinal mass or fluid collection.”

83.  It was common ground between Dr Lam and Dr Chun that there was a 3 mm bulge (or PID) and an annular tear as shown on the MRI films. The divergence of opinion revolves around the following issues:

(a) With respect to the “annular tear” reported by Dr Chu, whether it was a “annular tear” (ie with leakage of nuclear material to the space outside the annulus fibrosus, the ring of ligament fibres) or simply “annular fissure” without such leakage?

(b) Taking into account the answer to (a), whether the PID is properly termed “extrusion” or “protrusion”?

(c) Whether the answers to questions (a) and (b) above would support Dr Lam’s proposition that as a result fo the Accident the Plaintiff suffered more than what Dr Chun characterised as a “soft tissue injury”?

Medical Literature

84.  In essence, two pieces of medical literature were put before the court, namely (1) Phoebe A Kaplan, MD et al, Musculoskeletal MRI, WS Saunders, pp 282 to 288 (“M-MRI”) (2) Pathologist of the Spine, Core Curriculum for Basic Spinal Training (2^nd Ed) 2003 Medtronic Sofamor Danek (“POS”).

85.  It is immediately apparent from reading the literature that “The terminology for disk abnormalities is very confusing and inconsistent in the literature” (see M-MRI at p.282). Lamentably, no clarification has been sought from Dr Chu as to her definitional references in compiling the MRI Report.  To some extent, both Dr Lam and Dr Chun are second-guessing what Dr Chu meant by her various expressions used in the report such as “annular tear” and “extrusion”.

86.  In a general sense, there is no dispute that disc bulging may also be referred to as PID. According to POS, the pathological process is known as Herniated Nuclear Pulpous (HNP). This term indicates that the nucleus pulposus (or material) is attempting to squeeze out through a crack in the annual fibres, like jelly squeezing out of a donut. There are four degrees of disc herniation (Figure 9-3, at p.118)

87.  Similarly, M-MRI also identifies four stages of morphology (see Disk Contour Abnormalities at Box 13-4, p.284).  In order to make sense of the classifications, some form of harmonisation of the definitions is necessary. The following is discernible from the 2 pieces of literature.

M-MRI	POS
Disk Bulge – Diffuse extension of disk by >2mm beyond vertebral margin	A. NUCLEAR HERNIATION – This occurs when the nucleus ruptures through the innermost fibers of the annular fibrosus but does not cause any disruption or distortion of the outer annular fibers.
Disk Protrusion  - - Focal, small extension of disk beyond verbal margin - Antereoposterior<mediolateral diameter - No cranial or caudal extension - Usually asymptomatic - Low signal T1 and T2	B. DISC PROTRUSION: Also known as a “bulging disc”, this occurs when the ruptured nucleus distorts the outermost fibers of the annulus, causing them to bulge outward. The term PROLAPSED DISC is synonymous with protrusion or bulging.
Disk Extrusion - - Greater extension of focal disk material than a protrusion - Frequently symptomatic - Antereoposterior ≥ mediolateral diameter - May migrate craniocaudally, but maintains attachment to parent disk - ↓ Signal on T1, ↓ (or ↑) on T2	C. NUCLEAR EXTRUSION – This describes a complete split in the annulus that allows nuclear material to leak out into the surrounding spaces. In this type of herniation, the protruded material remains attached to the nucleus remaining inside the disc.
Sequestered Disk –   -Loss of continuity between the extruded disk material and parent disk - Usually symptomatic - Fragment migrates -Cranial and caudal (equally) - Anterior or posterior to PLL (posterior longitudinal ligament) - Epidural, intrathecal, paraspinous - Contraindications to limited disk procedure - Common cause of failed back surgery, if unrecognised. - ↓ Signal on T1, ↓ or ↑ on T2 or contrast T1	D. SEQUESTERED NUCLEUS – The extruded nuclear substance is no longer attached to the material remaining inside of the disc. The sequestrated fragment(s) may float around the spinal canal and become totally remote from the site from which it originally extruded.

88.  As for Disk Extrusion, another narrative description was given in M-MRI (at p.283) which reads as follows: 

“Disc Extrusion. An extruded disk is a more pronounced version of a protrusion an often is responsible for symptoms. . .There is disruption of outer fibers of the annulus, and the disk abnormality usually is greater in its anteroposterior dimension than it is at its base (mediolateral dimension). The extruded disc may migrate up or down behind the adjacent vertebral bodies, but maintains continuity with the parent disk.. . MRI shows the described contour abnormalities and, because of a significant inflammatory reaction that may occur in response to the extruded disk material, there may be high intensity on T2W and contrast-enhanced T1W images in or surrounding the disk. The typical appearance however, is the same signal intensity as the parent disk on all pulse sequences.

Lumbar disk extrusion that cause radiculopathy but are managed non-operatively have been shown to do well about 90% of the time. . . .Again much of the pain from extruded disk is probably from inflammatory response to them, rather than from compression of neural elements from the mass effect.”

Annular Tear or Annular Fissure

89.  Radiographically, the classification of the disc bulge is normally done by reference to the saggital images (sideway) and correlated with the axial images (horizontal plane). In this case, an axial image was marked Exhibit P4 and a saggital image was marked Exhibit P6.

90.  Dr Chun accepted that a 3mm bulge could be seen in the saggital image and there was a tear in the fibres, which he contended ought to be called “annual fissure” or a crack in the fibre.

91.  Dr Chun referred to a paper published in about 2014 which draws the distinction between “annular fissure” associated with degeneration and an “annular tear” of a traumatic origin, which connotes a complete split in the annulus that allows nuclear material to leak out into the surrounding spaces. 

92.  Disk Bulge is the first of the four morphologies of increasing severity. In the narrative of Disc Bulge (see M-MRI, at p.283), it is said that:

“There are tears in the annulus when there is a disk bulging, although they may not be evidence on MRI”.

93.  This is equivalent to what Dr Chun described as “annular fissure”. Dr Chu did not specify in the MRI Report whether she observed any leakage of nuclear material in the films. Therefore, when Dr Chu used the term “annular tear”, it may (or may not) mean that there such a complete tear allowing escape of nuclear material to the space beyond the annular fibrosus. 

94.  In the circumstances, resort has to be made to the MRI firms themselves. Dr Lam gave evidence that he could see in the saggital image (Exhibit P6), a tear represented by a white patch extending from the disc at L4/5 beyond the rim of the annular fibrosus. I take it as that Dr Lam was seeking to show an annular tear similar to that illustrated in Figure 13-3 A (in M-MRI, at p.283). 

95.  In contrast, Dr Chun opined that the “tear” as seen on Exhibit P6 was only a partial tear of the fibres within the confine of the annular fibrosus, which ought to be described as an “annular fissure”. Unfortunately, Exhibit P6 is not as clear as one might have wished. Although there is a very vague white patch at L4/5 (similar to that depicted in Figure 13-3A in M-MRI), it is not conclusive evidence of the annular tear (ie a complete split of the outer fibres).

96.  There is no dispute that the “annular tear” as reported by Dr Chu could not be found in any axial image in the entire series. In this connection, during his examination-in-chief, I invited Dr Lam to compare the relevant axial MRI image (Exhibit P4) against the 4 diagrams in POS and identify the stage of the Plaintiff’s PID. Dr Lam said it was between B. DISC PROTRUSION and C. NUCLEAR EXTRUSION.

97.  For one reason or another Dr Lam did not explain at that stage that the “annular tear” was not detected in any of the axial images. This only came up in cross-examination by Mr Lam for the 1^st Defendant.  Despite the absence of corroboration from any axial image, towards the end of his evidence, Dr Lam asserted that the Plaintiff’s case fell within “C. NUCLEAR EXTRUSION”. 

98.  Dr Lam sought to justify his latter answer by postulating that there would have been progressive worsening of the PID since the Accident up to the time of the MRI (i.e. about 11 days). However, this postulation does not sit comfortably with his earlier evidence that the Plaintiff’s condition was between B. DISC PROTRUSION and C. NUCLEAR EXTRUSION, which was predicated upon the Plaintiff’s condition as of the time of the MRI examination (ie a snapshot). Logically, there could not have been any time lapse factored into the earlier question and answer.

99.  Further, Dr Chun explained that the disc is just under 1 cm in height (say 9 mm) and the axial cut was done at interval of 2 to 3mm, it is therefore highly unlikely to have been missed the annular tear, if it had been there. Dr Lam accepted that the tear could not be found in any of the axial image but he relied on the saggital image (Exhibit P6) to show an extrusion (with annular tear). He explained that depending on the orientation of the annular tear, it might (or might not) appear on the axial cut. If anything, it demonstrates that the tear could not have been very significant so as it was not captured on the axial images.

100.  In the totality of the evidence, I find the explanation of Dr Chun more convincing. That said, triangulation has still to be made with reference to other terminology used by Dr Chu such as “extrusion” in the MRI Report.

101.  For the reasons set out hereinbelow. I prefer the interpretation of the MRI films rendered by Dr Chun over that of Dr Lam. Hence, I found that the Plaintiff’s “annular tear” was incomplete and it was conforming more to the description of “annular fissure” adopted by Dr Chun.

Extrusion or Protrusion

102.  In the absence of any evidence from Dr Chu herself and in light of the confusion in the use of terminology as readily recognised by the learned authors in M-MRI, not much reliance can be placed on the use of the term by Dr Chu.

103.  The following tell-tale features of Disk Extrusion are discernible from the narrative above recited from M-MRI (see para. 88 above):

(a) There is disruption of outer fibers of the annulus;

(b) greater in its anteroposterior dimension than it is at its base (mediolateral dimension);

(c) high intensity on T2W and contrast-enhanced T1W images in or surrounding the disk because of a significant inflammatory reaction that may occur in response to the extruded disk material.

104.  There is no dispute that there was disruption to the outer fibres. It is a matter of degree and it is not conclusive as to whether the disk bulge is a “protrusion” or an “extrusion”.

105.  Radiographically, it is clear from the axial image (Exhibit P4) that the Plaintiff’s right-sided disk bulge does not show greater anteroposterior dimension than mediolateral dimension. Hence, it looks more like a Focal Disk Protrusion as illustrated in Figure 13-4C (M-MRI, at p.284) as opposed to an extrusion illustrated in Figure 13-4D.

106.  There is no dispute that T2 signals are a reliable diagnostic feature for inflammatory response, which is expected in the case of an extrusion (with annular tear) of a traumatic origin. Admittedly, no T2 inflammatory signal was discernible from the MRI films in this case.

107.  Dr Chun emphasized that there was no T2 signal in the MRI films, which militates against the recency and extent of the “annular tear” seen on the saggital image (Exhibit P6). Dr Lam sought to explain that the Plaintiff’s L4/5 disc was desiccated and hence the T2 signal would understandably be weak.

108.  For the reasons set out hereinbelow, I prefer the evidence of Dr Chun over that of Dr Lam.

(a) In the JOR, Dr Chun relied heavily on the absence of T2 signal to show recent inflammatory reaction, which, if present, would be more consistent with a more serious injury.

(b) While this explanation was not proffered by the Plaintiff in Dr Lam’s oral evidence, it was canvassed by way of cross-examination of Dr Chun that the lack of or weak T2 signal might be attributable to suppression of the inflammatory reaction by use of very potent non-steroid anti-inflammatory drugs (NSAID), namely Acroxia 120 mg and Mefenamic 250 mg, prescribed by Dr Wong from 4 February 2015 up to the time of the MRI taken on 11 February 2015.

(c) Dr Chun disagreed with this explanation. Drawing from his own experience, he said some T2 signal would still be detectable even if the inflammation reaction has subsided. I am inclined to agree with Dr Chun on the strength of the inflammatory response discernible from T2 signals as explained in the narrative from M-MRI (at p.284) which has been cited in Para. 88 hereinabove.

(d) I would postulate that patients “managed non-operatively” would normally be prescribed analgesics. Therefore, if the drug was likely to have the effect of masking the T2 signals on MRI, I would expect the same to be discussed in authoritative text such as M-MRI. However, there was no such discussion in the literature.

109.  While Dr Chun accepted in cross-examination that the disc bulge as shown in the saggital image (Exhibit P6) looks like the illustration at Figure 13-4E, he disputed the description “Disk Extrusion” in the caption, explaining that it should still be described as a “protrusion” in the absence of (1) a confirmatory axial image; (2) T2 signal showing substantial annular tear and leakage of nuclear material.

110.  Dr Lam emphasized that according to the MRI Report, the discs at the other levels of the Plaintiff’s spine were in pristine condition which tallied with the MRI images. Dr Chun disagreed and contended that there was already some degeneration. He also postulated that the sacralisation of L5/S1 would predispose the degenerative changes in L4/5 which would be left to bear the load slacked off by the L5/S1 joint.  As both Dr Lam and Dr Chun are not qualified in radiology and there is no discussion in the literature put before the Court, I would regard such evidence as neutral.

111.  On balance, I prefer the opinion of Dr Chun to that of Dr Lam in that the disc bulge should properly be described as “protrusion” rather than “extrusion”.

Insignificance of the classification

112.  Having said all that, I am of the view that extent of the “annular tear” and the classification of “extrusion” or “protrusion” are not particularly helpful. The diagnosis and prognosis of the Plaintiff disc pathology is to be decided upon its effect on the Plaintiff, which is a matter of factual evidence.

113.  These semantical arguments were precipitated and/or accentuated by the Plaintiff’s attempt to rely on the MRI findings and their expression in the MRI Report of Dr Chu to sustain an argument that the Plaintiff sustained more serious than “soft tissue injury” resulting in “structural change” in the L4/5 disc.

114.  At the end of the day, the presentation of the Plaintiff’s injury and the clinical course run by him would be more informative and useful. These have been summarised in Paragraphs 58 to 82 hereinabove.

Impairment and Sick Leave

115.  As said, the Plaintiff was assessed to have sustained 9% permanent loss of earning capacity (Form 9). It is trite that this is not to be equated with the assessment of Permanent Impairment of the Whole Person under the “Guide to Evaluation of Permanent Impairment” published by the American Medical Association (5^th Ed), the “AMA Guide”.

116.  In the JOR, both Dr Lam and Dr Chun referred to the AMA Guide. When being referred to the Table at 15.3 of the AMA Guide, Dr Lam agreed that the Plaintiff was not in Diagnosis-Related Estimates-III (DRE-III) which depicts impairment of 10 to 13%. However, he would put the Plaintiff in DRE-II (5 to 8%) impairment having allowed for his pre-existing back degeneration.

117.  Dr Lam explained he assessed the Plaintiff’s total impairment as 9.5 to 10% and after taking into account his pre-existing condition, he would adjust it downward to 9% (see Para. 119 of JOR).  However, when his attention was drawn to the fact that DRE-II was only up to 8%, Dr Lam was not able to explain the gap between DRE-II (5 to 8%) and DRE-III (10 to 13%). That said, Dr Lam clarified that he had made some uplift in assessing the Plaintiff on account of his complaint of pain and the structural change to L4/5.

118.  In contrast, Dr Chun assessed a total of 2% PIWP on account of the Plaintiff’s pre-exiting degeneration and attributed only 0.5% to the injury sustained in the Accident (see para. 116 of JOR).

119.  There is no need to decide on the precise percentage of impairment. However, reading the examples given in the AMA Guide, I tend to agree with Dr Lam that the Plaintiff’s impairment is closer to DRE-II (up to 8%).  That said, I have slight reservation as to the approach of Dr Lam in making an uplift on account of the Plaintiff’s complaint of pain in light of the exaggeration observed during the joint examination on 7 July 2016 (see paragraphs 102 to 116 of the JOR).

120.  At the time of joint examination, powers of the lower limbs were normal there was no muscle wasting. Straight leg raising (SLR) was right 70 degrees with complaint of LBP being increased and left 70 degrees with complaint of LL increased pain (c.f. flip test 80/80 degrees, no complaint). X-Ray showed normal lordosis.

121.  It is not disputed that that there were positive Waddell signs which were indicative of exaggeration on the of the Plaintiff. Dr Chun also commented that “The sensory reduction on the right lower limb is non-anatomical and cannot find any support from the MRI study” (i.e. not corresponding to the dermatomal distribution). 

122.  Dr Lam readily recognised (at para. 112 of JOR) that :

“Mr Ying had some improvement with various improvement with various treatments. It is likely that he still has some genuine pain and impairment in the low back despite various treatments. However, degrees should not be as severe as what he alleged (e.g. continuous low pain [back?] pain; pain reaching grade 8 when sitting for just 30 to 45 minutes). The degree of residue pain and impairment is estimated to be moderate.”

123.  Importantly, Dr Lam opined (at para. 188 of JOR) that

“Mr Ying may be able to gradually return to his pre-accident job (modified duties – eg. Exemption/avoidance of heavy lifting, say over 50 lbs or kick boxing with twisting of back with force) with reduction in work capacity”.

124.  In his oral evidence, Dr Lam opined that if the Accident had not happened, the progress of the Plaintiff back degeneration would be such that he would start to have symptoms in 20 years’ time (ie at the age of about 45).

125.  Dr Lam would respect the sick leave granted by the treating doctors which was certified up to 31 March 2016 (i.e 14 months from Accident). Dr Chun however opined that the Plaintiff should return to work after 2 weeks.  The Plaintiff was followed-up at Orthopaedics PYNEH since his admission on 27 April 2015.  He was put on intensive in-patient and out-patient physiotherapy between April and November 2015.

126.  In addition to in-patient consultations, the Plaintiff was seen by orthopaedic doctors at Specialist Out-Patient Clinic on 7 August 2015 and 13 November 2015 whereupon sick leave was extended to the medical assessment scheduled for 28 January 2016.

127.  In light of the intensive and adequate medical treatment already obtained at PYNEH, it does appear that the bi-monthly consultations with Dr Richard Wong was mainly for the purpose of the legal proceedings. It is self-evident that after the medical assessment on 28 January 2016, all sick leave up to 31 March 2016 were granted by Dr Richard Wong. Further, no medication was prescribed by Dr Richard Wong during these consultations.

128.  In the circumstances, I am of the view that sick leave up to 28 January 2016 (i.e. one year after the Accident) is reasonable.

Quantum

129.  But for my finding on liability, I would have assessed damages as follows.

PSLA

130.  By any standard, the back injury sustained by the Plaintiff is mild to moderate. The injury sustained in the Accident has triggered symptoms in a degenerative L4/5 joint but they have mainly been resolved. I am of the view that a reasonable sum of damages on account of PSLA taking into account the Plaintiff’s previous asymptomatic condition would be about HK$200,000.

131.  In so deciding, I have taken into consideration precedents including Chau Chin To Chadow v. Wing Fung Financial Group Ltd. HCPI 163 of 2015, unrep, 1 August 2017, Master J Wong; Ng Ning Fu v. Leader Engineering & Construction Limited, HCPI 173 of 2015, unrep, 12 December 2017, Master H. Au-Yeung; Rai Surya Prakash v. Pacific Crown Security Services Limited, HCPI 1395/2025, 26 May 2020, DHCJ Anson Wong SC ; and Pak Sai Ming v. J.V Fitness, HCPI No. 1387/2014, 10 September 2019, Au-Yeung J).  

Pre-Trial Loss of Earning

132.  The average income for the 12 months preceding the Accident from January to December 2014 was only HK$75,012.18 in the List of Earnings. This tallies with the Payroll Item History Report showing an average of [HK$883,396.15 + (HK$1,250 x 5) + (HK$1,500 x 7)] ÷12 = HK$900146/12 = HK$75,012, which Miss Leong again argued, and I accept, was inclusive of employee’s MPF contribution but exclusive of the employer’s MPF contribution.

133.  However, I reject Miss Leong’s argument that the Plaintiff’s Loss of Earning should be assessed on the basis of his earning after 1 November 2015 (ie after his promotion to PT6). The time lapse between his promotion and the Accident was so short that there was no track record to speak of.

134.  On any view, the Plaintiff had achieved substantial income and was doing well for some one of his academic background.  However, it is admitted that the success of a personal trainer depends on a whole list of factors such as qualification, social skills, rapport with customers and attributes of clientele. Since there is an infinite number of ways people may choose to exercise and stay fit, the demand of personal trainers is highly elastic which is affected by the prevailing trend and general economic sentiment.

135.  Competition in the industry is keen and the lifeblood of fitness centres is the inflow of cash by way of pre-payments generated from sales of training packages. It is fortuitous, but not surprising, that joint provisional liquidators were appointed on 13 July 2016 and 1^st Defendant was subsequently wound-up by a court order dated 23 November 2016.

136.  Giving evidence for the 1^st Defendant, Mr Kan Lap Kee, a joint liquidator, explained that despite the cashflow from sales, the 1^st Defendant was losing money due to the substantial rent and overheads.  This speaks volume of the vulnerability and sustainability of the business of fitness centres in general. It is not helped by the fact that fitness centres were ordered to be closed for 162 days due to COVID-19 between 28 March 2020 and 17 February 2021. Common sense dictates that the patronage took time to recover even when the ban was lifted from time to time.

137.  On the evidence, I am of the view the Plaintiff ought to have returned to work at the Fitness Centre in February 2016 (ie upon expiry of his sick leave granted by PYNEH on 28 January 2016).  Whilst he might not be able to return to work in full swing, it has to be borne in mind that part of his job was that of a salesperson.

138.  Presumably, he would still be able to contact his previous trainees to re-establish contacts and to develop new clientele. I would allow a period of 3 months for this period of adjustment (ie up to 30 April 2016) during which the loss of earning would be assessed at 50%. Thereafter, there would be no further loss of earnings. In any event, since the Fitness Centre was closed upon the appointment of joint provisional liquidator on 13 July 2016, even if the Accident had not happened, the Plaintiff would find himself in the job market vying for a position in fitness training or another occupation. Hence, this is not a suitable case to apply the multiplier/multiplicand approach for the assessment of Future Loss of Earnings.

139.  Accordingly, the Plaintiff Pre-Trial Loss of Earnings (inclusive of MPF Contribution) is assessed as follows:

(1)     1.2.2015 to 31.1.2016
HK$75,012 x 12 months x 1.05	HK$ 945,151.20
(2)     1.2.2016 to 30.4.2016
HK$75,012 x 3 months x 1.05 x 50%	HK$ 118,143.90
	HK$ 1,063,295.10

Loss of Earning Capacity

140.  I accept Miss Leong’s submission that even if the Plaintiff could return to his pre-Accident job, he was likely to suffer a disadvantage in the labour market with his residual impairment. An award for Loss of Earning Capacity would have covered possible scenarios of the Plaintiff having to take some time off to rest in-between jobs.

141.  A sum of HK$1,000,000 is claimed under this head. On the strength of the authorities such as She Sze Nga v. Yeung Ying Kit, CACV No. 106/2018, 26 June 2020 and Rai Surya Prakash v. Pacific Crown Security Services Limited, HCPI No. 1395, 26 May 2020, DHCJ Anson Wong SC , I accept Miss Leong’s submission that a sum of HK$1,000,000 is appropriate under this head.

142.  As a quick cross-check, the sum of HK$1,000,000 is about 13 months of the Plaintiff monthly income.  In Leung Lai Yin v. Yeung Kei Chi t/a Shun Hing Furniture Decorating Construction, HCPI 317/1999, unrep, 7 April 2000, DHCJ To (as he then was) awarded loss of earning capacity on the basis of 1 month’s income per year of work multiplier.

143.  Adopting Dr Lam’s evidence that but for the Accident, the Plaintiff would be symptom free until about age 45, his working life as a personal trainer would have another 19 years to run (at age 26 on 1 May 2016 to 45). At a discount rate of 2.5%, the fixed multiplier should be about 15.17. Taking into account the extraneous factors pertinent to vulnerability of the industry, a reduction of the multiplier to about 13 would be justifiable.

144.  In this scenario, adopting the approach of DHCJ to in Leung Lai Yin (supra), it would have yield a similar result (i.e. $75,012 x 13 = HK$975,156).  Accordingly, I would allow the claim of HK$1,000,000 under this head.

SPECIAL DAMAGES

Medical Expenses

145.  A sum of HK$10,000 is claimed for medical expenses. I am of the view that it is a reasonable sum and should be allowed in full. 

146.  To put things in perspective, even if half of the consultations with Dr Richard Wong is allowed, it would already come to $600 x 40 x ½ = HK$12,000.

147.  A sum of HK$5,000 is claimed for transportation. I am of the view that a sum of HK$3,000 would be reasonable allowing for a mixed use of taxi and public transport.

148.  A sum of HK$10,000 is claimed for tonic food. No receipt is produced. I would only allow reasonable sum of HK$6,000 (say $500 per month during the sick leave period).

Summary on Quantum

149.  In summary, but for my finding on liability, I would have awarded the following sums by way of damages subject to deduction of 1/2 on account of contributory negligence:

(1)     PSLA	HK$  200,000
(2)     Pre-Trial Loss of Earnings	HK$ 1,063,295.10
(3)     Medical Expenses	HK$  10,000
(4)     Travelling Expenses	HK$  3,000
(5)     Tonic Food	HK$  6,000
(6)     Loss of Earning Capacity	HK$  1,000,000
	_____________
	HK$  2,282,295

150.  I would also have awarded (1) interest on PSLA at 2% per annum from the date of writ to the date of judgment; and (2) interest on special damage (after deduction of EC Award HK$1,000,000) at half judgment rate (4% per annum) from the date of Accident to the date of judgment.

151.  The Plaintiff should also give credit for the sum of HK$1,000,000 already received by way of Employees’ Compensation. I shall leave it to the parties to work out the final sums, if necessary.

Disposal

152.  The Plaintiff’s claim herein is dismissed.

153.  Costs of the action be paid by the Plaintiff to the 1^st and 2^nd Defendants to be taxed if not agreed. The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.