CHAN CHUNG KEUNG v. GREENROLL LTD t/a CONRAD HONG KONG

Dates of Hearing: 28 and 29 November 2005

Date of Judgment (Handed down): 20 December 2005 

_______________

J U D G M E N T

_______________

INTRODUCTION

1.  On 8 April 2003 the Plaintiff, then aged 37, was employed as a Bar Captain at the Conrad Hotel.  At about 1:30 p.m. he was carrying a serving platter, from the kitchens along a corridor, to the Grand Ballroom where a luncheon was taking place, when he slipped and fell on the wet floor and landed on his bottom.  As a result, he sustained injuries to his lower back which I will need to describe in more detail presently.  He has brought this action in negligence and for various breaches of statutory duty against the hotel claiming damages for personal injury.  The Defendant has admitted liability to the extent of 80% of the Plaintiff’s claim, and I am now required to assess the damages which the Plaintiff is entitled to.  I will assess quantum on the basis of 100% and then reduce it to the agreed percentage.

THE PLAINTIFF’S EMPLOYMENT HISTORY UP TO THE DATE OF THE ACCIDENT

2.  The Plaintiff is now aged 40.  He is a married man.  Prior to the accident he enjoyed good health.  He left school in 1983 having completed Form 3.  He became employed as a waiter in a café/restaurant until 1989.  Since 1989, when he was 29, he has worked as a waiter in hotels and good quality restaurants.  In 1994 he became employed at the Conrad Hotel where he remained, save for a two year gap between 1997 and 1999 when he took up an employment elsewhere, until he was injured in April 2003.

THE ISSUES

3.  As so often happens with a back injury, the Plaintiff says that he is now unable to return to his former employment with the result that he can now only do less physically demanding and less well paid work, which has given rise to a very substantial claim for future loss of earnings.  The Defendant supported by its orthopaedic expert alleges that he is now perfectly capable of returning to his previous employment, and that he is not entitled to an award for future loss.  Part and parcel of the defendant’s case in this regard is the contention that the Plaintiff has exaggerated his symptoms.  The other substantial issue relates to the length of sick leave to which the Plaintiff should be entitled.  The Defendant alleges that this should have stopped on January 2004 when the doctors at the Murray McLehose Rehabilitation Centre (“MMRC”) said it should have and not, as the Plaintiff contends, when his certificated sick leave expired on 4 April 2004.  On these issues, I will need to assess the Plaintiff’s credibility which has been sharply called into question.

THE INJURIES AND TREATMENT

4.  These can be conveniently taken from a joint medical report prepared by the parties experts, Dr Chun and Dr Wong who examined him on 21 March 2005 which was very nearly two years after the accident [starting at page 198].  He attended Queen Mary Hospital (“QMH”) on the day of his fall complaining of low back pain and left thigh and hip numbness.  The fall was on his left buttock.  The X-ray of his spine and pelvis showed no fracture.  A pain killing injection was administered and he was discharged home with a sick note until 13 April.

5.  He returned on 14 April complaining of persisting back pain, left wrist pain and a numb left leg and thigh which got worse at night.  The X-rays were reviewed and no significant findings were made.  He was discharged and sent to physiotherapy which he started at the Southorn-Centre on 22 April 2004.  By 6 October 2004 he had undergone 28  sections of physiotherapy.  On his discharge from there the doctors’ reported that the severity and frequency of the central low back pain had slightly decreased, but that pain was aggravated by fast walking and prolonged sitting for over 20 minutes.  Straight leg raising was 70º on the left and 90º on the right.  A MRI had been done in September 2003 which showed degeneration of L4-5 disc with no significant nerve root compression. 

6.  It was in this state that he was referred to the Duchess of Kent Children’s Hospital (“DKCH”) on 3 October 2003.  The admitting doctor has recorded that his symptoms were appearing in every position after a long period of time, and that he had diffuse tenderness over the whole lumbar spine .  Straight leg raising was now reduced to 50º on both sides.  Muscle strength and reflexes were normal.

7.  There is a record on 13 October 2003 from the occupational therapists that the Plaintiff had persistent resting pain in the lower back after the prolonged sitting, standing or walking and a similar record appears from the physiotherapist on the same day.  Pain would be aggravated by sustained posture or lifting something heavy.  There was a walking tolerance of 60 minutes and sitting of 30 minutes.

8.  The following day, 14 October, the doctor recorded that the Plaintiff walked with a stiff back, there was no listing, or forward bending, he could touch his knee and the straight leg raising of both legs was not limited.  There was mild tenderness over the lumbo-sacral region.  The Plaintiff complained of “much pain on axial loading and also trunk rotation”.

9.  The nursing record showed that he went home every day and returned to DKCH the next morning to resume his treatment.  This has given rise to an issue, because Dr Chun has said that if he could go home to Wong Tai Sin every day, then this would indicate that his physical condition could not be as bad as he says it was, otherwise he would not be capable of making the daily journey.  The Plaintiff says that the record has been misunderstood because the truth of the matter was that he was temporarily lodging at his sister’s home in Western District, which was not at all far, and which he did by arrangement with the hospital because his sister’s home was much more congenial than having to remain as an in-patient.  This is not accepted by the Defendant.  It remains a live factual issue, and one that is said to support the case against the Plaintiff that he is exaggerating his symptoms and disabilities.

10.  On 3 November 2004, over 18 months had elapsed since the date of the accident, the Plaintiff was asked to go to the MMRC for treatment to his back.  An MRI was done, and the doctor interpreted this as showing a mild degenerative change, and that the Plaintiff’s back was not tender.  When bending, he could now touch the mid point of his shin.  Straight leg raising was 70º bilaterally.

11.  Two months on, in January 2004, Dr Kwok observed that his training was limited by his symptoms which he considered to be genuine, nevertheless the neurological deficit could not be explained by the previous MRI.  As to this type of “conservative” treatment, Dr Kwok considered that this was as far as it could be taken, and that this type of treatment had offered him all the assistance that it could offer in terms of rehabilitation.

12.  An alternative surgical option was offered, and discussed with the Plaintiff, which by no means guaranteed success and which he declined.  On 13 February 2004, the Plaintiff did not attend for his final assessment.  He has said that the doctors at MMRC has told him that if he did not undergo the surgical procedure to his lumbar spine they would not be prepared to give him further sick leave, and that is why he left.  Not having returned sick leave was in fact terminated from that date and the Plaintiff was recommended for final assessment.  He also told me that one of the doctors at MMRC had told him that if he wished to obtain further treatment and sick leave that he could present himself at the A&E department of another hospital. 

13.  I should observe that a mid-term assessment of the Plaintiff’s condition had been performed on 18 September 2003.  The report indicated that the Plaintiff was not trying hard enough (described as sub-maximal effort).

14.  On 18 January 2004, he presented himself to the Our Lady of Maryknoll Hospital (“OLMH”) where he was treated as a new case, and given a sick leave certificate from 26 January to 30 March 2004.  He had 18 physiotherapy sections at OLMH from 11 February to 18 May 2004.  On 4 May 2004, the orthopaedic surgeon there noted that he was not keen to have an operation and that his condition was static with very little improvement with physiotherapy.

15.  From May to July 2004, he also attended A&E at QMH and the Violet Peel Clinic where back pain was complained of and he was given further sick leave.  Further physiotherapy was given at OLMH from 5 August to 15 October 2004 after which sick leave was stopped.

THE MEDICAL EXPERTS’ ASSESSMENT OF HIM

16.  Following his appearance before the Medical Assessment Board, his employment with the Defendant determined.  He had returned there in October 2004, but after 2 or 3 hours work it became clear to him that he could not deal with the demands of his job.

17.  His present complaints (as they were in March 2005) as reported to the two medical experts, by the Plaintiff, are recorded as follows:

“Low back pain, inside grabbing character, up to lower thoracic region, worse at low back area, sometimes referred to left groin.  Pain occurred intermittently, when carrying heavy objects (10 lbs) or sitting for long (30 minutes), or walking fast or big movement of body or standing for long (30 minutes to an hour).  Pain woke him up at night at 3-4 am, average 3-4 nights a week.  Pain intensity graded as 5-6 (0=no pain, 10=extreme unbearable pain).

Ant-bite pain on both lower limbs, left side more severe than right, of continuous nonstop nature.  Left side intensity was grade 8, right side grade 4-5.  Pain better in sunny days and worse in cold days.

Unable to lift up a bucket of water to mop floor.”

18.  He was subjected to a comprehensive examination including Waddell’s simulation tests designed to find out whether a patient is exaggerating his symptoms and the doctors also had before them an X-Ray, taken on 15 October 2003, of the lumbar spine which showed that;

(i)	lumbar lordosis was normal;
(ii)	Spurs at L4 level and lower end plate;
(iii)	and that disc height was normal.

They also had an MRI of the lumbar spine taken on 28 October 2004.  This showed the following:

(i)	Mild decrease of lumbar lordosis;
(ii)	Signal change of dehydration at L3-4 and L4-5 discs;
(iii)	Mild bulging L4-5 disc;
(iv)	No nerve root compression;
(v)	Cervical spine normal;
(vi)	Thoracic spine normal;
(vii)	Facet joint hypertrophy.

An October 2004 X-ray of the lumbar spine showed very mild lordosis, but otherwise no change.

19.  Dr Chun, for the Defendant, draws an attention to the fact that his initial attendance at QMH resulted in a conclusion that he had normal lower limb neurology and that the first two X-rays showed no fracture.  The diagnosis was soft tissue contusion of the lower back.  There was no wedge fracture of any vertebrae.  The MRI of the lumbar spine in October 2003 (6 months after the accident) only showed developmental changes.  There was no discrete disc protrusion or nerve root compression.  As to the Plaintiff’s bulging at L4-5, Dr Chun has drawn attention to a well-known text-book on this subject which states that;

“Bulging of a disk is due to desiccation and degeneration.  It develops over many years, essentially because of the normal wear and tear of ageing.  Acute traumatic injuries such as a fall or motor vehicle accident do not cause bulging.”

He has also observed that from the early medical records, the Plaintiff had already presented with non-organic signs, and that his condition had fluctuated.  Dr Chun says that the natural course of an injury is that it should recover gradually with the passage of time, and not deteriorate with increased symptoms and unexplained disability.  In saying this, Dr Chun has referred to (see page 214) and relied on the fact that whilst the Plaintiff had been admitted to the DKCH, he was able to go home to Wong Tai Sin each night indicating a far less serious disability, and that his response to rehabilitation was negative in that he had refused to correct his habitual improper stoop lift posture despite being reminded to do so by the therapist.  Dr Chun went as far as to say that this “lack of sincerity for recovery and rehabilitation suggested compensation neurosis”.

20.  As to these two matters, Dr Chun is not correct because I accept from the Plaintiff that he in fact lodged with his sister which was not very far from DKCH, and that at page 190, Miss Karlen Law, the therapist, has in fact said he did correct his improper stoop lift, when instructed to do so.  Nevertheless, Dr Chun has also relied on Miss Law’s other observations at page 190 that the Plaintiff’s work capacity assessment did not show significant physiological signs of exertion on his part, which indicated “sub-maximal effort”.

21.  As to the examination by Dr Chun and Dr Wong, the Plaintiff complained of back pain and bilateral lower limb pain.  The examination, on the other hand, showed no objective neurological deficit and normal tendon reflexes.  Dr Chun then makes the following observation:

“The decreased sensation on both lower limbs are that of glove and stocking type, not conforming to normal neuro-anatomy and cannot be explained from the MRI absence of neural compromise.  The generalized weakness of the left lower limb from hip to toe, if genuine would have involved nerve root from L1 to S1, a total of 6 nerve roots compression at least, which is obviously absent from the MRI findings.  The positive Waddell’s simulation tests and normal flip test again suggested strong non-organic component of his illness.  He was adopting an excessive sick role.  His symptoms and signs are of ‘functional’ nature.  By functional it means that non-structural, non-physiological causes are involved.  These included personal, emotional, occupational, psychological/psychiatric, social, economical, behavioural, cultural and motivational factors, in which one or multiple factors may contribute to his symptoms and signs.  Ignoring such signs as noted at this examination and ignoring such similar reports from Mr Chan’s attending doctors and called such signs genuine is beyond my comprehension.  It was not only the positive Waddell’s simulation tests alone but also other signs as well which he exhibited, were not compatible with such degree of injury of the fall.  The symptoms and signs are out of proportion to the initial injury.

The current literature suggests that the explanation of low back pain and sciatica by morphological finds shown on MRI remains questionable even with disc herniations, where a close patho-anatomic relation of the visable alteration and pain is generally assumed.  Morphological factors appear not to be significant predictors of low back pain requiring medical consultation or work absence.  In contrast, the working context considered both from a physical and psychological perspective seems to be a decisive factor when common back pain becomes disabling.  It is the study of Carragee et all (Carragee: visiting professor to University of Hong Kong in November 2004) points out that “structural variables on both MRI and discography testing at baseline had only weak association with back pain episode and no association with disability or future medical care”; and that “psychosocial variables strongly predicted both long- and short-term disability events, duration, and health care visits for low back pain problems”.  “The study found that heavy work might lead to some more back pain, but not disability.”  The structural factors that had the closest association with serious back pain were moderate and severe Modic changes—representative of degeneration of the endplate of the vertebral body.  Overall, however, these changes had only weak association with adverse outcomes.  [Spine, 2005; 5(1):24-35].

His condition had long been static.  No further treatment including surgery is indicated or will be effective in getting rid of symptoms and signs that are exaggerated and expanded.

From structural point of view he should be able to return to work as before.  He is independent with his activities of daily living.

Sick leave should be terminated after he completed the CRD program at MMRC when his condition had reached a static state.  Further sick leave from medical point of view is harmful.”

He then goes on to say why further sick leave would be harmful by reference to the Orthopaedic Forum published in the American Volume of Bone and Joint Surgery (page 216 of the trial bundle).

22.  Dr Wong for the Plaintiff is more sympathetic.  He says that he believes the Plaintiff’s back injury to be a genuine one.  He describes it as a back sprain for which he was treated conservatively and appropriately with rest, medication, regular physiotherapy and occupational therapy.  As to the dehydration at L3-4 and L4-5, as well as the mild bulging at L4-5, his view is that this is compatible with lumbar spine degeneration, which is part of the process of natural wear and tear and not related to the accident, this degeneration being common in manual worker such as the Plaintiff.  Prior to the accident, the Plaintiff was symptom free.  Dr Wong considers that the fall at work aggravated the spinal degeneration and has triggered his symptoms.

23.  Dr Wong’s conclusions are these:

“After examined Mr Chan, I am of the opinion that his persistent back are in keeping with persistent localized soft tissue inflammation that related to positive clinical findings like localized tenderness over L2 to L5 with decreased range of movement.  However, the decrease in sensation and the decrease in power of lower limb are not compatible to the myotome or dermatome distribution.  Also, the essential objective signs to detect nerve root compression, like muscle atrophy, loss of jerks, were negative.  Therefore, I believe that there was no neurological involvement.

Several Waddell’s test, like vertex compression and pelvic rotation tests were performed in order to detect any symptom magnification.  The results were positive.  I believe Mr Chan should have certain degree of symptoms magnification.  However, it was unfair to judge Mr Chan’s complaints as totally ‘non-functional’ and ‘non-organic’ by just performing that few simple Waddell’s test.  Considering also with the objective examination performed, there was still some guarding and tenderness along the lumbar spine with decreased lumbar movement.  Therefore, I believe Mr Chan’s back pain was genuine and in keeping with localized soft tissue inflammation.

Orthopaedically, Mr Chan has reached the stage of maximal medical improvement and he is suitable for assessment.  The prognosis is fair.  He is expected to have on and off attack of residual low back pain, particularly on exertion like prolonged walking, standing and heavy carrying and lifting.  He may require treatment on a need-to basis in future.  Surgery is not indicated. 

As a general opinion, it is not advisable for patients with a symptomatic degenerative back to take up jobs that require frequent lifting and bending of back, or heavy manual work.  I note that Mr Chan’s worked as a bar-captain before the accident that involved chiefly manual work and prolonged standing, like collection of good (drinks etc) from storage, transportation of 40-50 paper boxes of drinks of about 50-60 lbs per day, serving customers and setting tables, etc. (Section 39).  I believe he should have difficulty in resuming his pre-injury work again after the accident unless exemption of all the heavy manual work was possible.  Moderate work like watchman, security guard, gas-station attendant may be more suitable for him ………;

I think that for such injury, the period of sick leave granted to him from 8 April 2003 to 4 August 2004 is reasonable.”

THE COURT’S DIFFICULTY

24.  As a result of closer case management, that is now the norm, it had been decided by the Master that there should be a joint examination of the Plaintiff, and that the experts’ report as prepared by them following their joint examination, should go into evidence without them being required to appear and to be cross-examined on what were materially divergent views on the length of sick leave, and the Plaintiff’s future loss of earning capacity having regard to the fact that Dr Chun says that the Plaintiff can now return to his former employment.  Dr Wong on the other hand says that it would be difficult for the Plaintiff to return to being a Bar Captain, having regard to the fact that he would be required to lift cartons of drinks.  Dr Wong suggests lighter, and of course far less well remunerated work as a watchman or security guard.

25.  In such circumstances, I will have to navigate my way through what is conflicting medical opinion, and test it against the background of all the other evidence in the case, which I am prepared to accept, in order to decide whose expert evidence is to be preferred.  Both experts agree that the Plaintiff has exaggerated his symptoms, although less so by Dr  Wong.

THE AWARD

(i)  Pain & Suffering and Loss of Amenity

26.  Even though the Plaintiff contends that this is a severely disabling injury, which should sound heavily as to future loss of earnings, the fact remains that this is no more than a soft tissue injury which exacerbated a pre-existing weakness caused by the natural ageing process.  Both counsel are in fact in agreement as to the broad range of award under this head of between $150,000 and $200,000.  It should be remembered that the injury did cause the Plaintiff a degree of psychological problems leading to depression, part of which were caused by difficulties that he was having at home, and these problems should in my view sound in the award under this head.  I have been showed a number of decided ‘back’ cases within the range of damages which the parties are asking me to award.  These are helpful, subject to the limitation that no two cases can ever be the same.  In all the circumstances, I propose to award $180,000.00 under this head.  This is not, by any means, a severely disabling condition, and the Plaintiff can perform all the activities of daily living.  I have also factored into this a very real element of exaggeration of symptoms, which I will have more to say about when I come to the award for future loss of earnings.

(ii)  Pre-trial loss of earnings

$15,598.38 x 15 months + $15,598.38 x 27/30

= $247,969.24

To this one must add 5% for loss of

MPF being $247,969.24 x 5% = $12,398.46

The total of these two figures comes to  $260,367.70

(iii)  Future loss of earnings

(iv)  Loss of Earning Capacity

28.  This is claimed on the basis that there is a risk of the Plaintiff losing his employment some time in the future, by virtue of his injury and thereby being at a disadvantage in the labour market, and having difficulty in getting further employment.  Back injuries are notorious for giving trouble with the passage of time.  The accident has aggravated the Plaintiff’s pre-existing weakness caused by natural wear and tear, and although I am satisfied that the treatment that he has received and the healing process which the passage of time has afforded him since the date of the accident means that he can return to his pre-accident employment, the risk must remain of a breakdown some time in the future.  I propose to compensate him for this risk by awarding him what he should now be earning namely $15,598.38 multiplied by 6 months, which comes to $93,590.28 for loss of earning capacity.

(iv)  Other Special Damages

29.  These relate to medical expenses and travelling expenses, relating to his medical treatment and are agreed by the Defendant at $15,833.80.  There is a dispute in relation to a claim of $10,000.00 for tonic food, which is unsupported by receipts.  I judge the sum of $4,000.00 to be a proper amount, which gives a total of $19,833.80 under this head.

Summary
(i)	Pain & Suffering	$180,000.00
(ii)	Pre-trial loss of earnings	$358,646.49
(iii)	Future loss of earnings	$    NIL
(iv)	Loss of earning capacity	$ 93,590.28
(v)	Loss of MPF	[already factored
		under (ii)]
(vi)	Other special damages	$ 19,833.80
	Total	$652,070.57
	Total at agreed 80%	$521,656.46
	Less ECC payment already received	$301,568.68
	Total awarded	$220,087.78

INTEREST

30.  2% on general damages [PSLA], from the date of the writ until judgment.  Interest on special damages being pre-trial loss of earnings and other special damages at half the judgment rate, from the date of the accident until judgment.  These amounts, as calculated, must be added to the total award.

COSTS

31.  Having regard to the amount recovered, the Plaintiff must have his costs on the District Court scale only.  The order for costs will be an order nisi in the usual way.