Wong Kwok Wai v. Jardine Air Terminal Services Ltd

HCPI 335/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 335 OF 2014

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ASSESSMENT OF DAMAGES

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1.This is an assessment of damages to be awarded to the plaintiff for personal injury sustained while being employed by the defendant at the airport on 21 June 2011 (“Accident”).  Interlocutory judgment was entered against the defendant on 23 September 2014. 

2.The plaintiff was born on 18 July 1966 and was 44 years old at the time of the Accident.  He was born in China and had completed Form 3 education.  He is married with two daughters and he lives with his retired parents, his wife and his daughters.  His wife is a housewife.  The plaintiff had worked as a handyman, a delivery worker, a van driver and a taxi driver before working as a cargo equipment operator for the defendant.  At the time of the Accident, the plaintiff had worked for the defendant for about 11 years.

3.A witness statement was made by the plaintiff on 16 March 2015. This was adopted by him at the hearing before he gave his oral testimony.  Two joint medical reports by Dr Tio Man Kwun Peter and Dr Lee Po Chin have been made, one prepared by them after examination of the plaintiff on 24 March 2015 and the other after review by them of the MRI report and the surveillance report.  The two joint medical reports are dated 30 September 2015 and 23 May 2016 respectively.

4.After the Accident, the plaintiff had consulted a number of doctors and attended various physiotherapy sessions for treatment.  Many of the reports by the treating doctors and physiotherapists have been submitted.  A surveillance report with DVD of footage taken on three separate days, 9, 11 and 13 November 2015 can also be found in the bundles.

THE ACCIDENT

5.On 21 June 2011, the plaintiff was moving cargoes from the apron of the airport to the warehouses using small tractor units.  The cargoes were put inside wheeled dollies or iron cages.  The plaintiff and his colleagues had to chain up these wheeled dollies to the back of small tractor units.  The plaintiff would pull the front of the dollies manually while a colleague pushed the dollies from behind.  The witness statement of the plaintiff only referred to a colleague pushing the dollies from behind, but according to the oral testimony of the plaintiff, the colleague would be driving a vehicle to push the dollies from behind and not pushing them manually.

6.At around 5pm on the date of the Accident, while pulling a dolly as usual with his colleague driving a vehicle at the back, the plaintiff hurt his waist.  He took a rest on a small tractor unit and then drove the small tractor back to the office where he rested.  An ambulance was called and the plaintiff was taken to Princess Margaret Hospital (“PMH”).

MEDICAL TREATMENTS

7.The plaintiff was admitted to the Department of Accident and Emergency (“A&E”) of PMH on the day of the Accident.  X‑ray examination showed no fracture or dislocation.  The plaintiff was given analgesics and was discharged on the same day.   The plaintiff testified to the intention of the treating doctor to arrange for hospitalization, but he went home since no bed was available.  He was referred to physiotherapy but he only attended one session at Tuen Mun Hospital (“TMH”) on 11 July 2011.  The physiotherapy report of TMH recorded his complaint on that day of 24‑hour numbness over the posterior aspect of the right thigh.

8.From 27 June 2011 to 15 January 2012, the plaintiff received treatment from doctors in private practice, including Dr Tang Wing Hong, Dr Chan Chi Wai Nixon, Dr Henry CK Lau, Dr Au Kin Ming and Dr Fu Wai Kee, with Dr Au and Dr Fu being orthopaedic specialists.  According to the consultation notes of Dr Tang, the plaintiff consulted him on 27 June 2011 for back pain and on 17 October 2011 for both back pain and right leg pain.  As for Dr Chan, a doctor the plaintiff used to see before the Accident, he consulted this doctor for his pain issue on 14 October 2011 and 27 April 2012. In the case of Dr Lau, the plaintiff went to his clinic on 12 June 2012.

9.The plaintiff complained to Dr Au about his right leg pain on the first consultation on 15 July 2011. Upon the recommendation of Dr Au, a MRI of the lumbar spine was conducted on 30 September 2011 which shows that there was prolapse of intervertebral discs of L4/5, just impinging on the L5 nerve.  Dr Au also arranged for 30-40 sessions of physiotherapy for the plaintiff in the private sector.

10.The plaintiff stopped seeing Dr Au by end of October 2011 and he went to Dr Fu from then on until January 2012.  On 14 January 2012, Dr Fu recorded the request of the plaintiff for surgery and his explanation of the risk of surgery to him.  According to the plaintiff, it was Dr Fu who first suggested surgery to him although he did not know what type of surgery he meant.  The plaintiff gave evidence that after being notified about the costs of the surgery, he sought further treatment from the public sector.

11.During this period of consulting Dr Au and Dr Fu, the company doctors, the plaintiff visited A&E of TMH as well on several occasions, including 30 June 2011 and 8 September 2011.

12.From January 2012 onwards, the plaintiff relied mainly on public health service for western medical treatments, including seeking help from the Department of Orthopaedics & Traumatology (“O&T”) of TMH, Tuen Mun General Out Patient Clinic (“GOPC”) and Tin Shui Wai Heath Centre General Out Patient. He visited the A&E of TMH on 20 January 2012 and his first attendance at the O&T of TMH was on 31 August 2012.  A right L5 Spinal Nerve Regional Block (SNRB) was administered to the plaintiff at Pok Oi Hospital on 7 December 2012.

13.After the SNRB, the plaintiff said he stopped feeling pain for about one to two months but thereafter it resumed.  The plaintiff told the doctors he wanted surgery but none was eventually carried out.  Records of such a request being made can be found in the notes of consultation of O&T of TMH on 19 March 2013, 30 April 2013, 11 June 2013 and 3 September 2013.  

14.There is no information on the physiotherapy the plaintiff received for those sessions arranged by Dr Au.  As for physiotherapy at the public hospitals, the plaintiff had attended two additional sets of sessions at TMH, 8 sessions from 2 March 2012 to 4 May 2012 and 4 sessions from 14 May 2014 to 18 September 2014. 

15.The plaintiff had occupational therapy at TMH from 24 May 2012 to 5 July 2012, attending 10 sessions of work hardening program at its out-patient service.  The plaintiff also attended the Occupational Therapy Out-patient Service of TMH on 16 April 2014 for work capacity evaluation.

16.Apart from western medicine, the plaintiff also resorted to Chinese medicine, chiropractic and acupuncture.  The records in the bundle relating to sick leave granted show that the last of his visits to such practitioners was around June 2014.  Records of his consultation with these practitioners have not been produced.

SURVEILLANCE REPORT

17.The footage of the surveillance report was played out at the hearing and the plaintiff was asked about what he was shown to be doing.  In the footages taken on the three dates mentioned above, the plaintiff was seen leaving home to pick up his daughters, each separately from a different school, taking one of the girls to a playground and watching the girl play on the merry go round, visiting a Hong Kong Jockey Club Betting Centre at a shopping arcade near home to place bets, patronizing a supermarket together with his daughters, waiting for seats outside a restaurant and playing computer games with his daughter outside a shop selling electronic products.

18.Throughout the periods of surveillance, the plaintiff was seen behaving like a normal person.  He walked up stairs without holding on to the rails, and was able to bend sideway to scratch his right lower limb while doing so.  He walked generally at a normal speed but he walked faster without hesitation in crossing the road when so required by the traffic condition.  He carried the knapsacks of his daughters for them after picking them up from school and also after stuffing the knapsacks with the groceries they bought at the supermarket.  He squatted down to the height of his younger daughter to chat with her.  He stood all the while at the betting station when placing his bets and also on the occasion when he firstly watched his daughter play the computer games and later playing himself.

19.The footage taken on 11 November 2015 shows the plaintiff walking and standing for over 30 minutes, without any sign of suffering from pain.  As regards the video taken on 13 November 2015, the plaintiff was seen standing for over 30 minutes and he was smiling most of the time, seemingly enjoying the computer games.

FIRST JOINT MEDICAL REPORT

20.In the Joint Medical Report dated 30 September 2015 (“1^st JMR”), the then current complaints of the plaintiff noted by the doctors included intermittent right low back pain radiating to the right sole and occasionally also to the scrotum, pain upon standing (especially when getting up in the morning), walking only thirty minutes under cover of medicine and instant pain when walking without taking medicine, sitting for more than one hour would lead to need to change posture, walking down stairs for fifteen to twenty minutes, putting on clothes, lifting weight heavier than 8 kg and after walking for a few minutes.  The plaintiff reported requiring analgesics daily.

21.The two doctors agreed on the examination findings that the lumbar spine showed tenderness in the right paraspinal muscles, while the midline lumbar spine and the left paraspinal muscles were not tender.  There was no muscle spasm.  Trunk flexion was slightly limited.  Straight leg raising was 80º on right side and 90º on the left side while supine, but 90º for both sides on sitting.  There was no motor and reflex deficit but the plaintiff complained of impaired sensation of the whole right lower limb.  The simulation tests were positive in axial compression and negative in passive pelvic rotation and arm elevation.  X‑ray showed loss of lumbar lordosis and there were mild degenerative changes at the L3/4. 

22.After referring to the medical notes and reports of previous treatments, the two experts agreed that the mechanism of injury described by the plaintiff when pulling a cargo dolly could be consistent with that producing lower back pain and the injury was likely limited to the soft tissue.  They also agreed that the treatment with medicine, physiotherapy and occupational therapy received by the plaintiff was adequate and appropriate, and that the condition of the plaintiff has reached the stage of maximal medical recovery and no further treatment is necessary.

23.Pointing to the then available medical reports of the plaintiff, Dr Lee opined that the injury should not have caused radiculopathy.  His opinion is based on the fact that the available documents show that the main complaint after the injury was low back pain and the right leg numbness was first reported after a delay of three weeks when there was no verifiable radiculopathy. 

24.On the complaint of the plaintiff of pain in the right lower limb, Dr Tio only referred to the statements in the medical notes of Dr Au, Dr Tang, GOPC and O&T of TMH, and the results of the MRI noted in the reports of other doctors.  He made an observation that the symptoms and signs were severe enough so much so that the plaintiff was referred to O&T of TMH by the private doctors and that the option of a selective nerve block for his right sciatica was suggested to the plaintiff.

25.Dr Lee took the view that the objective findings at the examination are not consistent with significant residual pain in the lower back.  There was no muscle spasm and no radiculopathy.  The non-dermatomal impaired sensation and increased pain on axial compression are non‑organic signs.

26.Dr Tio opined that there was still residual pain over the back with tenderness at the right paraspinal muscle.  Clinical examination did not reveal genuine sign of neurological deficit over the lower limbs, but the presence of reduced lordosis in the x‑rays suggested that the plaintiff was still in pain.

27.On the ability of the plaintiff in returning to his pre-accident work, Dr Lee opined that the plaintiff should have no difficulty in doing so, with the caveat that he has to exercise care when lifting heavy weight.  Dr Lee specifically mentioned that the impairment should be mild and only occur when the plaintiff needs to lift heavy weight.

28.Although Dr Tio also opined that the plaintiff would be able to resume his pre‑injury duty as a driver and delivery worker at the airport, he qualified that with reduced efficiency such as pain over the back or right leg symptoms being aggravated by heavy manual work, physical exertion, prolonged standing and walking etc.  Dr Tio also said that the plaintiff may need intermittent breaks of 15 minutes after every 2 hours for rest or self‑stretching, and the overall endurance of the plaintiff could have been reduced.

29.The experts differed in the length of sick leave that should be considered adequate.  Dr Lee considered sick leave of about three to four months to be adequate for recovery from the soft tissue injury sustained by the plaintiff.  Dr Lee pointed to the medical report from Dr Chan Chi Wai of the consultation on 14 October 2011 which showed that the pain was localized without neurological deficit or pain radiation, when the symptoms should be mild.  Dr Tio gave his opinion that the sick leaves granted should be endorsed but he did not give any reasons for such opinion.

30.The assessment of Dr Lee on the impairment of the whole person and loss of earning capacity of the plaintiff is 2% while Dr Tio’s assessment is 4.5%.

SECOND JOINT MEDICAL REPORT

31.Since the date of the 1^st JMR, the experts were asked to give a supplementary medical report after their review of further documents which include a MRI report prepared by Dr Ivan Tsui on 30 September 2011, a surveillance report prepared by Great Force Investigation Consultants Ltd. dated 21 November 2015 and some other medical reports by treating doctors.  This they did by a second medical report dated 23 May 2016 (“2^nd JMR”).

32.Dr Lee noted that with the edited footage in the surveillance DVD which covered the plaintiff’s daily activities, he was not seen performing strenuous activity.  Dr Lee went on to comment that the way the plaintiff was seen moving around, bending his back and carrying the knapsacks for the girls did not seem to be consistent with a person suffering from disabling back pain.

33.Dr Tio made a similar remark about the DVD footage not showing the plaintiff to be involving in heavy manual work or any big movements of his back.  Thus, he opined that the activity level shown in the video did not have any discrepancy with the complaints of the plaintiff and the physical findings documented in the 1^st JMR.

34.With the multiple levels of degeneration that were revealed by the MRI, in particular the prolapsed intervertebral disc at L4/5 and suspicious impingement on the right L5 nerve root, the experts agreed that the degenerative changes were likely to be pre-existing since such changes take a long time to develop and could not be explained by the injury occurring three months before, but the presence of degeneration rendered the plaintiff more prone to develop back pain, even if he was asymptomatic before the injury.  They agreed that the prolapsed disc at L4/5 could be due to degeneration although injury could aggravate the condition, but the onset of symptoms of pain in the back or leg could be spontaneous or caused by an injury, which could be trivial, whether from an occupational or domestic activity.

35.Dr Lee was more inclined to believe that the prolapsed L4/5 is due to degeneration because of the absence of description of radicular symptoms in the first three weeks after the Accident.  Dr Lee then went on to say that there is a strong possibility that some other events or natural progression of the pre­-existing condition would have brought about back pain similar to what he complained of after the subject accident, even if the accident had not taken place. According to Dr Lee, in view of the age of the plaintiff and the nature of his pre‑accident work, it is expected that the plaintiff will develop pain similar to what he had in about 7 to 8 years’ time even if the subject accident had not taken place.

36.However, in the opinion of Dr Tio, without the Accident, it would be very likely that the plaintiff should remain asymptomatic for a very long time, say for another 15 years, and even if there could be symptoms due to the natural degeneration, the intensity should be much less if the Accident had not occurred.  He so opined because, in his view, the pre‑existing degeneration in the lumbar spine was mild and fully compatible with the age of the plaintiff, there was no history or evidence of back pain prior to the Accident and the plaintiff was able to work as a manual worker.

37.It is noted in this 2^nd JMR[1] that at the time the plaintiff consulted the clinics that issued the available medical reports, examination revealed only back pain without any neurological deficits.  There was no description that the pain was a disabling one.  The surveillance report showed the plaintiff was able to move around without difficulty and tilting and side bending his back without hesitation.  The aforesaid suggests that the residual back pain should not be disabling and the plaintiff should have recovered well from the injury.

38.Whilst agreeing that there was no sign to suggest any major neurological deficit as a result of the back injury, Dr Tio referred to the surveillance report as not showing any discrepancy with that documented in the 1^st JMR and this he said reflected that the plaintiff was a reliable and honest person.  He also said that the additional medical reports were good documentation that the plaintiff was still having residual back pain due to the captioned accident.

39.Dr Lee concluded by saying that the additional reports suggest that the condition of the plaintiff has improved by October 2011 as stated by Dr Au in his report and that his back pain should be mild by the time he consulted the GOPC in January 2012.

40.Otherwise both experts confirmed their opinions in the 1^st JMR.

WORK SINCE THE ACCIDENT

41.There is no dispute between the parties that the plaintiff was earning an average monthly income of $17,883.04 plus MPF benefit at the time of the Accident. His basic salary was about $8,000 odd with the rest being shift allowance and overtime allowance.

42.At the recommendation of Dr Au, the plaintiff tried resuming work with the defendant for a short spell in early September 2011.  From the notes of Dr Au relating to the consultation on 10 September 2011, it can be seen that the plaintiff resumed work on 5 September 2011 and he told Dr Au that he was assigned driving work without manual labour.  The plaintiff said that he was not given sick leave for that period and it is recorded in the table of sick leave issued that is included in the bundle that the plaintiff was given sick leave by A&E of TMH on 8 September 2011.  It can therefore be deduced that the plaintiff tried resuming work from 5‑7 September 2011.  The plaintiff said he could not cope with the driving duties he was assigned because there was increase in pain and numbness.  There is no evidence of the amount the plaintiff was paid for these few days of work, if any.

43.The plaintiff next returned to work for the defendant on 3 December 2013, being assigned light duties of receipt of mail which required him to stand a lot.  According to the plaintiff, he could not cope because he would feel the pain developing and becoming intense if he could not sit down after standing for 30 minutes.  At that time, he said he could only stand or walk for about 30 minutes and sit for about 1.5 to 2 hours.  His employment with the defendant was terminated on 3 July 2014.  He earned a total of $59,192.05 during this period.

44.After leaving employment with the defendant, the plaintiff started working the night shift at a gas station in September 2014.  He earned about $7,800 a month plus $200 night shift allowance.  The plaintiff said he could manage working at the gas station because he could sit if no cars came into the station.  He stopped working there in about May 2015 because, according to his testimony, he was hit at the back by someone.  The total earnings the plaintiff received for working at the gas station are $64,000.

45.The plaintiff then started work as a part time taxi driver from mid November 2015, earning around $2,800 a month.  He became a full time taxi driver from June 2016 onwards, earning about $10,000 a month.  He testified to quitting as a taxi driver in February 2017 for the reason that he would fall asleep while driving because of the painkillers he was taking.  The plaintiff earned about $16,800 and $90,000 from being a part-time and full‑time taxi driver respectively.

46.Since April 2017, the plaintiff has been working as a security guard with a salary of about $8,500 a month.  He earned about $25,500 in the three months before the hearing.

EXTENT OF THE INJURY

47.I am not impressed by the testimony of the plaintiff.  When asked to account for the weaknesses in his case and the inconsistencies between the records of the treating doctors and physiotherapists and his version on the extent of injury, he offered no sound reasons and often became evasive.  He also answered in a very guarded manner even to the simplest of questions.  I do not find him to be a reliable witness.

48.To the extent that the two experts differ in their opinion, I prefer the opinion of Dr Lee.  He gave clear reasons for each occasion when he came to a different conclusion from that of Dr Tio.  In contrast, Dr Tio did not always explain his different views.  For example, with respect to the sick leave given by the treating doctors, there is detailed explanation from Dr Lee in support of his opinion while Dr Tio just stated his opinion but not his reasoning.  I agree with Mr Chan that Dr Tio had relied heavily on the subjective complaints of the plaintiff instead of objective medical bases.

49.I also have concerns over whether Dr Tio was as alive to his duty as an expert to the court to be nonpartisan and objective as Dr Lee.  The two experts were tasked to give their professional opinion based on the scientific findings of the conditions of the plaintiff.  Their opinion on whether the plaintiff was a reliable and honest person is not called for, but as noted in paragraph 38 above, Dr Tio ventured to do so in the 2^nd JMR.

50.The plaintiff testified to his present conditions as being the same as when he resumed work with the defendant in December 2013.  He still has back pain and pain radiating to the sole of his right leg and he has to take analgesic two to three times everyday.  Both his walking and standing tolerance is 30 minutes with analgesic and the situation is worse if he is not on medication. He specifically mentioned that he would start to feel the pain whenever he is not sitting or lying down, whether he is walking or standing.  In his witness statement, the plaintiff stated that he needs analgesic in order to sleep but sometimes he cannot sleep even after taking medicine. 

51.Both experts agreed that the back pain was caused by the injury sustained by the plaintiff in the Accident.  As for the pain in his right leg, the opinion of Dr Lee is that it could not have been caused by the Accident because there was a three weeks’ delay in the onset of such radicular symptoms and there was no verifiable radiculopathy.  In coming to this conclusion, Dr Lee has carefully considered the subjective complaints made by the plaintiff to the treating doctors and also their objective findings, that there were no tension signs, no neurological deficit and full straight leg raising.

52.Although Dr Tio’s opinion is that the plaintiff still has pain in his right leg, he himself has indicated that the clinical examination did not reveal genuine sign of neurological deficit over the lower limbs of the plaintiff, a feature that has been repeatedly reported by the various treating doctors and physiotherapists too.  Further, Dr Tio has only referred to the subjective complaints of the plaintiff recorded by the various doctors but not their objective medical findings, and he then gave his opinion merely on the basis of such complaints.

53.I take note that Dr Ivan Tsui who prepared the MRI report did indicate that the impingement on the right L5 nerve owing to the posterior prolapsed L4/5 disc is probably the lesion accounting for the right leg symptoms of the plaintiff.  Such comments of the Dr Tsui are set out under the heading “Impression” in his report and he cannot be regarded as giving any professional opinion.  There is no mention that he had conducted any examination of the plaintiff at all.  I will not go by the impression of this doctor.

54.Despite having been asked a few times by Mr Chan, the plaintiff avoided pinpointing the time when he began to have symptoms of pain in his right leg. The first occasion on which there was mention of any problem with his right leg is the physiotherapy report of his attendance at TMH on 11 July 2011. There was also record of same at his consultation with Dr Au on 15 July 2011, when the plaintiff told Dr Au that the pain from his back sprain had improved a bit but there was right leg numbness.

55.However, the plaintiff’s complaints about the pain in his right leg have not followed through in the subsequent consultations with various doctors.  For example, the records of the visit of the plaintiff to the A&E of TMH on 20 January 2012 made no reference to pain in the leg or any complaints of unbearable pain as described in the Revised Statement of Damages (“RSOD”). There was only mention of right leg numbness but not radiation of pain to the sole of his right leg.

56.The pain in his right leg is also recorded as his subjective complaints in the physiotherapy report of TMH dated 5 May 2015.  The first set of physiotherapy sessions attended by the plaintiff at TMH ran from 2 March 2012 to 4 May 2012 and on 2 March 2012, the plaintiff complained to the physiotherapist of stretching pain over the right side of his lower back and numbness radiating to the sole of right foot, with walking and sitting tolerance being 5‑10 minutes and 15 minutes respectively.  Whilst confirming to having made such complaints to the physiotherapist in March 2012, the plaintiff also expressed his agreement to the suggestion of Mr Chan that he would have told other doctors as well if he was experiencing such great pain.  This however was not what the plaintiff had done.

57.As noted in paragraph 8 above, the plaintiff consulted a Dr Chan Chi Wai, Nixon for his back pain on 14 October 2011 and 27 April 2012.  This Dr Chan had treated the plaintiff in the past before the Accident. According to the notes of Dr Chan for the consultation on 14 October 2011, the plaintiff had back pain and the pain was localized without neurological deficit nor pain radiation.  For the visit on 27 April 2012, the doctor’s records are “symptoms essentially the same” and “no worsening”. Two other consultations are referred to in the notes of Dr Chan, but the complaints of the plaintiff on those occasions were flu.  The doctor specifically noted that the patient did not mention the back pain any more on the last occasion on 11 July 2012 when the plaintiff consulted him for flu. 

58.With the consultation of Dr Lau on 12 June 2012, the doctor noted that he carried out a neurological (physical) examination of the plaintiff on that day.  The report referred to symptomatic treatment being given based on the fact that the patient had presented with pain and tenderness over the back only without significant neurological deficit.  There is no mention of the pain or numbness in the right leg of the plaintiff.

59.In the course of re-examination, the plaintiff testified that the orthopaedic specialists and the physiotherapists were more thorough in their consultation than the general practitioners, which I take it to mean Dr Chan, Dr Lau and Dr Tang, and they spent more time in asking him questions about his pain.  Ms Chhoa therefore submitted that it is not the case that the plaintiff told different stories to different people, but the plaintiff was simply not asked about his leg pain by the general practitioners.

60.I do not find Ms Chhoa’s submission convincing at all.  It defies common sense for the plaintiff to have missed telling the general practitioners about the pain in both his back and his leg.  If the pain that he was experiencing was of such degree that he said it was, he would not have told the doctors about the pain he had in one area and not the other.  After all, as noted in paragraph 56 above, the plaintiff himself agreed that he should have told the doctors about the pain when he answered Mr Chan’s questions. 

61.Furthermore, the specific remarks of Dr Chan that there was no pain radiation could not have been put down by him without his addressing his mind to this particular possible scenario.  Similarly, in describing the plaintiff as presenting with “pain and tenderness over the back only”, Dr Lau would only do so after having asked the plaintiff whether he had pain in other parts of his body.  The plaintiff could not explain why there was no mention of his telling these two doctors of the pain in his right leg in such records or why their notes are contradictory to his complaints of having pain in the leg since July 2011.

62.The failure in informing the doctor about his unbearable pain at A&E of TMH on 20 January 2012 is baffling as well.  A referral by this doctor to the O&T for specialist consultation would depend on the complaints made by the plaintiff to him or her.  Details of the pain suffered by the plaintiff would be required before the doctor could decide.  I see no good reason for the plaintiff to have missed telling the doctor the exact extent of his pain on such an occasion.

63.Sick leave was granted by the various treating doctors and practitioners intermittently from 21 June 2011 up to 1 July 2014, a total of 936 days.  It is clear from the cases of Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 and Pak Siu Hin Simon v J.V. Fitness Ltd, HCPI 574 of 2014, 15 May 2017 that the court is not bound by the sick leave certificates issued by the treating doctors since they were issued on the basis of subjective symptoms reported to the doctors by the claimant. These certificates have to be evaluated in the light of all the available evidence including the medical evidence before the court.

64.The plaintiff was specifically asked about the cessation of his sick leave period which coincided time wise with the termination of his employment with the defendant.  Mr Chan suggested to the plaintiff that he only sought sick leave while being employed by the defendant because the plaintiff was lying about the extent of his injury and there was no longer any need to exaggerate after leaving his employment with the defendant.

65.The plaintiff denied exaggeration and remarked that he had continued to consult other doctors to get medication, only that he had not asked for invoices.  He also explained that since he was working at night at the gas station, he did not need sick leave certificates for consulting doctors which he did in day time.  He had no further answer when Mr Chan pointed out that the sick leave that he had been granted were not for days on which he was consulting doctors only.

66.The incongruity in the plaintiff’s evidence does not rest there.  The plaintiff testified to his leaving the employment of the defendant because he could not cope with the work, being required to stand for long periods of time and without sitting down, whereas with the work he did at the gas station, he could manage because he could sit if no cars were coming into the station for service.  However, according to the subjective complaints recorded in the physiotherapy report of TMH, the plaintiff stated, on 17 July 2014 and 18 September 2014, that his walking tolerance and sitting tolerance were 15 minutes.  This directly conflicts with his oral testimony about being able to sit for 1.5 to 2 hours. 

67.These are not the only matters the plaintiff could not explain.  It is true that, as noted by the experts, the plaintiff was not seen to be performing strenuous activities or making big movements of his back in the surveillance videos.  However, these videos show him as stress free and walking at ease, something commented by Dr Lee as not consistent with someone suffering from disabling back pain.  When asked about it, the plaintiff said he could pick up the girls without problem, and that on the occasion of 11 November 2015, he was out for 1 hour 15 minutes, he felt painful but he endured it. There is no sign at all which shows that the plaintiff was in pain or enduring it.  In particular, the manner in which he walked, not holding on to rails and bending sideway to scratch himself while walking up the stairs, is not consistent with the way someone in pain would conduct himself.

68.Further, on that day, the plaintiff went to the betting station to place bets before picking up his girls from school, and he went with the girls to the supermarket after picking them up.  For someone who has been living with such pain tolerance level like him and for such a considerable period (more than four years since the Accident), the natural thing to do is to split up the trips.  I do not find the explanation of the plaintiff that he was enduring the pain credible.

69.There is then the clip showing the plaintiff going out with his daughter for over 3 hours on 13 November 2015.  The plaintiff can be seen standing all the way for over 30 minutes first watching his daughter play and then himself playing electronic games outside a shop.  The plaintiff agreed that he did not feel painful then, but he could only come up with a lame excuse that it did not feel like that long a period to him.

70.The consultation notes of the plaintiff’s last visit to the O&T of TMH on 25 November 2014 are also telling.  In contrast with the plaintiff’s claim that there has been no improvement in the pain he has been experiencing since he stopped seeking treatment from chiropractors and acupuncturists, the doctor recorded the plaintiff as reporting that there was only minimal lower limb numbness and he did not need analgesic.  The plaintiff stressed that the doctor did continue to prescribe analgesic.  This however is contrary to the clear record shown on the consultation notes that no medication was prescribed on this last visit.

71.The plaintiff did try to salvage his case by claiming that he had since then been getting analgesics from government clinics, paying $45 for each such visit.  However, there is not one single documentary record of such visits. The plaintiff has included in his claim for medical expenses two items for the amount of $15 only.  There is no reason why he would not have claimed for the $45 he paid for each such visit for the two and half years from November 2014 up till now.

72.Apart from physical disabilities, the plaintiff claims in the RSOD that he has been suffering from insomnia, reduced energy, declined outdoor activities and declined social activities.  When questioned about these claims, the plaintiff said he had been consulting doctors at Castle Peak Hospital since July 2016.  He said he had not included relevant records in the court documents because he thought they might not be relevant.  This is in direct contrast with his stand under the RSOD.

73.The evidence before me is all telltale signs of the plaintiff having exaggerated the extent of his injuries.  There is no objective medical reason for the leg pain that the plaintiff claims he is suffering.  There is also no evidence of the plaintiff having been diagnosed to be suffering from any psychiatric or psychological disorder.  He also has no acceptable reasons for the inconsistent versions of the complaints he made with different doctors.  I do not accept his case.  That notwithstanding, I still have to consider the extent of injury that the plaintiff has been able to prove as having been caused by the Accident.  For this, I have to place greater reliance on the medical evidence presented, in particular the evidence of the two experts.

74.Complaints about pain in the right leg only emerged after three weeks from the date of the Accident.  Despite the impression noted by Dr Tsui in the MRI report, Dr Lee’s opinion is that the complaints were not supported by the medical findings.  Dr Tio also noted that clinical examination did not reveal genuine sign of neurological deficit over the lower limbs. The comments of the treating doctors and physiotherapists in this regard are also in line with their opinion.  The surveillance videos also do not support the claim of there being leg pain.  I therefore find the complaints about residual pain in the right leg to be mere fabrication on the part of the plaintiff.

75.Even with the back pain that both experts agree as having been caused by the Accident, I do not accept the plaintiff’s case that he is still suffering from it.  When the plaintiff was pulling the dollies at the time of the Accident, a colleague was driving a vehicle to push from behind.  I agree with what Mr Chan said in his closing submissions that it only accords with common sense for the plaintiff to rely on the co‑worker who was pushing mechanically from behind instead of his exerting great strength to pull the dollies manually in the front.  The plaintiff’s role was more in the nature of guiding the movement of the dollies and the sprain injury should therefore be of a minor nature.

76.Despite the claim of the plaintiff that his back pain persists and he has been suffering from serious symptoms and disabilities, the plaintiff has all along been receiving conservative treatment by way of medication, physiotherapy and occupational therapy.  He was not diagnosed to be suffering from any fracture or tear of ligament or tendon, or dislocation of the lumbar joints as a result of the Accident.  He was not hospitalized for any lengthy period for treatment.  He received an injection into the spine in December 2012, but he did not have any surgical operation for his injury.  The case presented by the medical treatment reports is not one of serious injuries or disabilities.  It is noteworthy that Dr Au encouraged the plaintiff to try going back to work in early September 2011.  This tends to suggest that he considered the plaintiff medically fit to do so.

77.The claim of the plaintiff that he is still suffering from back pain is also not supported by the expert opinion of Dr Lee.  The record of the plaintiff’s last visit to the O&T of TMH on 25 November 2014 also presents a picture of adequate recovery, to the extent that analgesic was no longer required.  The plaintiff shown in the surveillance video is also inconsistent with that of a person who is enduring pain of the level described by him.  Further, noting in particular the opinion of Dr Lee that the symptoms of the plaintiff should be mild after 3-4 months, allowing him to return to work, I find the plaintiff to have satisfactorily recovered from his back pain by end of October 2011.

78.As for the adverse effect that the plaintiff claims the Accident has on his psychiatric or psychological condition, there being no medical evidence in support of such claims, I also find the plaintiff to have failed to establish such claims.

ABILITY TO RESUME PRE‑ACCIDENT WORK

79.The opinion of the two experts on the ability of the plaintiff to return to his pre-accident work has already been set out in paragraphs 27‑28 above.  I take note that according to the Work Rehabilitation Assessment record prepared by the occupational therapist of TMH, the plaintiff’s capacity of work cannot match his pre-accident demands.  I accept the submissions of Mr Chan that such a report would be based primarily on the subjective symptoms reported by the patient, and that the forensic expert evidence from the two doctors should carry more weight. 

80.Dr Lee cautioned against lifting of heavy weight while Dr Tio warned about aggravation of pain by, amongst others, heavy manual work and physical exertion.  However, it is the plaintiff’s testimony that there was no need to lift heavy weight.  His duties were to deliver the cargo-carrying dollies from one place to another.  All he had to do was to hook up the dollies and to drive them to wherever he was required to take them to.  As demonstrated by his own testimony, the physical exertion required for him to fulfill his tasks should not be significant when the dollies were pushed mechanically at the back by another colleague driving a vehicle.

81.It is my finding that the plaintiff has not suffered any right leg pain and that his back pain was caused by minor tissue injury which has recovered after four months of the Accident.  Given that the plaintiff was not required to lift heavy weight or perform heavy manual work at all, there would not even be the mild impairment that Dr Lee has referred to or the aggravation that Dr Tio has referred to.  I therefore find the plaintiff to be fully capable of returning to his previous employment and that he will not be affected by his injury in fulfilling the duties under that job.

PRE‑EXISTING DEGENERATION

82.Details of the discussions and opinions of the two experts on the pre-existing degenerative condition of the plaintiff have been set forth in paragraphs 34-36 above. Both experts agreed that the degenerative changes seen in the MRI are likely to be pre-existing changes because they take a long time to develop, although injury could aggravate the condition.  There is also agreement that the presence of degeneration rendered the plaintiff more prone to develop back pain, even if he was asymptomatic before the injury, and that the onset of symptoms in the back or leg could be spontaneous or it could occur after an injury which could be trivial, whether from an occupational or domestic activity. 

83.Ms Chhoa pointed to the opinion of Dr Lee on the ability of the plaintiff to return to the pre-accident employment where he advocated the exercise of care when lifting heavy weight and opined that the impairment should only occur when the plaintiff has to lift heavy weight.  This, Ms Chhoa submitted, indicated that Dr Lee was affected by this wrong impression of lifting heavy objects being part of the work duties of the plaintiff when in fact it was not, because of the aid offered by the vehicle pushing behind. Hence, it is the submission of Ms Chhoa that the opinion of Dr Tio in this regard is to be preferred. 

84.Ms Chhoa further submitted that the plaintiff’s case belongs to the first scenario described in the case of Cham Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLR 958.  The effect of pre-existing condition on the assessment of damages was categorized into three scenarios in that case.  The first is where the claimant was almost certain to have gone through life unaffected by the condition.  The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the present state of the claimant.  The third is where the claimant’s present condition would certainly have occurred at some stage in any event. 

85.Dr Tio has not said the plaintiff would have gone through life unaffected by the degenerative condition.  Rather, it is his estimate that the plaintiff would remain asymptomatic for may be another 15 years.  So both doctors are saying that it is not a scenario one situation, but a scenario two or three situation.

86.Whilst Dr Tio estimated that the plaintiff would not develop any symptoms in another 15 years, Dr Lee considered the plaintiff would only remain asymptomatic for 7 to 8 years.  As to the cause for such possible change, Dr Lee pointed to some other events or natural progression as having a strong possibility.  Dr Tio said that the intensity of pain should be much less if it is caused by natural progression of the degeneration had it not been for the Accident. 

87.I do not accept that Dr Lee was the only one harbouring the wrong impression that Ms Chhoa referred to.  Dr Tio also referred to reduced efficiency of the plaintiff in resuming his pre-injury employment, with pain over his back or right leg symptoms being aggravated by heavy manual work, physical exertion and other factors.  He also had in mind the need for the plaintiff to pull the dollies with considerable labour, since according to the history of the matter set out in the 1^st JMR, the two experts were informed by the plaintiff of his noticing acute back pain when he twisted his back while pulling a cargo dolly.  They did not have the benefit of the oral testimony about the plaintiff being aided by a vehicle driven by a colleague behind him.  There was actually no or not much pulling required of the plaintiff in the 11 years that he was working with the defendant.

88.For the reasons I have set forth in the above discussions, I prefer the opinion of Dr Lee to that of Dr Tio in this matter of the pre-existing degenerative condition of the plaintiff as well.  I accept his opinion that the plaintiff would likely develop similar back pain in about 7 to 8 years’ time even if the Accident had not occurred. 

89.Next to consider is the discount to be applied to the damages to be awarded owing to such pre-existing degeneration.  In the opinion of Dr Lee, had there been no Accident, the plaintiff is expected to develop the back pain around 2023 or 2024, that is after 7-8 years from the time of the 2^nd JMR, when he will be about 57 to 58 years of age.  There will be another 7-8 years before the plaintiff reaches his intended retirement age, and over one-third of the period between the Accident and such retirement.  I therefore find the discount rate of 30% suggested by the defendant to be reasonable.  I accept 30% as the discount rate to account for the effect of the pre-existing degenerative condition of the plaintiff.

PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

90.Ms Chhoa referred me to four cases for the plaintiff’s claim for PSLA, Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited [2015] 5 HKC 570, Yuen Macie v Yeung Ying Kit HCPI 528 of 2015, 24 November 2016, San To Pok Yuk v Wing Kwong Painting Company Limited [2004] 2 HKLRD 169 and Li Fat Tsang v 信達工程公司HCPI 558 of 2000, 15 July 2002.  The awards for PSLA in those cases range from $230,000 to $500,000.  The plaintiff claims PSLA in the amount of $250,000. 

91.Mr Chan submitted that the award for PSLA should not be more than $80,000 after taking into account the pre-existing degeneration of the lumbar spine.  He relied on the cases of Sherma Phadindra v Tin Wo Engineering Co Ltd HCPI 32 of 2011, 8 November 2012 and Tam Fu Yip Fip v Sincere Engineering Trading Co Ltd [2008] 2 HKLRD 958.

92.In the Wong Man Kin case, the claimant was found to have suffered large disc protrusion and extrusion causing severe narrowing of the lateral recess and compression of the left exiting nerve roots.  He also had psychiatric condition.  Both orthopaedic experts in that case assessed his impairment of the whole person to be 10% while the two psychiatric experts assessed the impairment of the whole person from the psychiatric condition to be 10% and 5% respectively.  The award for PSLA in that case was $500,000.

93.The claimant in Yuen Macie v Yeung Ying Kit was awarded $230,000 for PSLA.  She suffered from residual neck and back pain, right upper limb numbness and right shoulder discomfort resulting from neck sprain, right wrist sprain, right shoulder and back injury as a result of a car collision that she was involved in. 

94.The claimant in San To Pok Yuk v Wing Kwong Painting Company Limited was a painter who fell from a ladder.  He had significant prolapsed intervertebral disc and associated degenerative changes caused by the accident, leading to severe spinal canal narrowing and moderate spinal canal stenosis.  Both experts recommended surgical treatment.  They found him to have 10% - 13% impairment of the whole person.  The award for PSLA was $350,000.

95.The court in the Li Fat Tsang v 信達工程公司 case accepted that the claimant genuinely suffered persistent back pain and weakness and numbness of the right leg, that the symptoms got worse at night, that he was not able to sit for more than 20 minutes without his leg becoming numb, stand for more than 40 minutes without suffering back pain or walk for more than 10 minutes without pain, that his sleep was frequently disturbed, his sex life had been adversely affected and he had considerable emotional stress.  The findings of the expert of tenderness at the lumbo-sacral region, muscle spasm at the right paraspinal region, impairment of spinal movement, muscle wasting of the right leg, weaker motor power of the right leg and osteoarthritis in lower thoracic spine and L1-5, as well as the expert’s opinion that the accident damaged the intervertebral disc and caused the back pain and the compression of nerve tissue by the prolapsed disc caused the pain in the right leg were all accepted by the court.  On such basis, an award of $300,000 for PSLA was made.

96.The findings I have made on the extent of injury are in stark contrast with those made in the Li Fat Tsang v 信達工程公司case.  The claimant in Yuen Macie suffered not only back pain, but also neck pain and upper limb numbness as a result of a car collision.  Her soft tissue injuries left her with some residual pain over the wrist and neck. The injuries of the plaintiff are less severe.

97.I also do not consider the injuries sustained by the plaintiff to be in the same league as those suffered by the claimants in the Wong Man Kin and San To Pok Yuk cases.  The plaintiff has not met with any neurological deficit.  There is no evidence of compression of the nerve or psychiatric condition in the present case whereas the two experts in San To Pok Yuk recommended surgical intervention.  I note that surgery was an option for treating the plaintiff that had been considered though none was carried out eventually.  Instead of it being suggested by Dr Fu, the notes of this doctor show that it was the plaintiff who requested surgery.  The plaintiff was vague about why no surgery was done, but the records of the doctors of O&T of TMH seeing him show that the plaintiff had repeatedly requested for surgery but the doctors explained that they did not consider surgery justified because there was no nerve compression.     

98.In the Tam Fu Yip Fip case, the claimant fell about six or seven feet from the top of a container.  His complaints included lower back pain, pain over both legs from knees downward, lower limb weakness with walking, urinary and bowel incontinence and need to ambulate with a stick for outdoors. After concluding that many of the complaints were exaggeration on the part of the claimant, the judge noted that the claimant suffered a soft tissue injury to the back but there was no evidence to support his other many, varied and conflicting complaints and that it was not possible to ascribe the complaints he had to the pre-existing degenerative back disorder.  The award for PSLA was $75,000.

99.The award for PSLA in the Sherma Phadindra case was $100,000. The court found the claimant to have exaggerated his conditions although he honestly believed them to be more serious than in fact they were.  Noting that both experts agreed that the claimant suffered from soft tissue injuries to his lower back, the injuries were considered as not entirely dissimilar to the injuries in the Tam Fu Yip Fip case.

100.All the cases referred to can only offer guidance.  It is my finding that the plaintiff has only shown that he suffered back pain as a result of the Accident and that he had recovered from it by October 2011.  The adverse effect that the injuries were alleged to have on his social life, his sex life and his psychological condition is not supported by medical evidence.  Having considered all these matters as well as inflation, I award $120,000 as damages for PSLA.  After taking into account the discount on ground of the pre-existing degeneration of the spine, the award is $84,000.  

PRE‑TRIAL LOSS OF EARNINGS AND MPF

101.Having found the plaintiff to have recovered and able to return to his employment with the defendant after four months from the Accident, the appropriate sick leave period should be four months.  No damages should be awarded for pre-trial loss of earnings beyond that point.  Damages under this head should therefore be $75,108.77 ($17,883.04 x 4 months x 1.05).  Since the plaintiff is only expected to become symptomatic way beyond this 4 months’ period, there is no reason to apply the discount factor here.

POST‑TRIAL LOSS OF EARNINGS AND MPF

102.In light of the findings above, there would be no loss of earnings post trial.  No award is made under this head.

LOSS OF EARNING CAPACITY

103.As noted in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, an award for loss of earning capacity is to cover the risk that, at some future point of time during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.

104.Dr Tio opined that the plaintiff suffers from 4.5% impairment of the whole person and the same percentage in loss of earning capacity.  The opinion of Dr Lee is 2% for both impairment of the whole person and loss of earning capacity.  Dr Lee’s assessment of plaintiff’s loss of earning capacity is the same as that of the Employees’ Compensation (Ordinary Assessment) Board.  The plaintiff claims $150,000 for loss of earning capacity on the basis that he has suffered and will continue to suffer from loss of competitiveness in the labour market.  In the plaintiff’s closing submissions, Ms Chhoa indicated that this represents about 9 month’s wages at $17,883, which was the pre-accident monthly earnings of the plaintiff.  This, she submitted as appropriate, taking into account the education standard of the plaintiff and the fact that he would be limited to jobs which involve only light duties that do not require him to bend down. 

105.Mr Chan expressed agreement to an award of $150,000 for loss of earning capacity in the event the court makes no award for future loss of earning.  He pointed out though that the fact that the plaintiff adopts the pre-accident salary as basis for this claim indicates that the plaintiff considers himself capable of returning to his pre-accident employment, as otherwise he should be making this claim by reference to the salary of his current job.

106.In line with my finding that the opinion of Dr Lee is to be preferred, I do not accept the loss of earning capacity is as significant as suggested by Dr Tio.  I award $75,000, half of the amount claimed, as damages for loss of earning capacity.  The 30% discount should also be applied and hence the award is $52,500 under this head. 

SPECIAL DAMAGES

107.The plaintiff claims $14,200 for medical expenses, $4,000 for travelling expenses and $5,000 for tonic food.  The defendant agrees to pay for the $14,200 as claimed, but regards the travelling expenses and tonic food expenses as excessive, noting that they are not supported by receipts.  The defendant offers a total sum of $18,000 on a broadbrush approach for all three items under this head.  In light of the above findings, the offer of the defendant is generous.  I will go by it and award the sum of $18,000 under this head.

DEDUCTIONS

108.The plaintiff has received a sum of $428,701.46 by way of employees’ compensation.  This sum should be deducted from the damages awarded in this action.

SUMMARY

109.The following table sums up the computation of the damages assessed to be payable by the defendant to the plaintiff:

	HK$
PSLA	$84,000.00
Pre-trial loss of earnings and MPF	$75,108.77
Loss of earning capacity	$52,500.00
Special damages	$18,000.00
Employees’ compensation	($428,701.46)
Total	($199,092.69)

110.The amount of damages awarded to the plaintiff is less than the employees’ compensation already received by him.  Even if interest at 2% on the award for PSLA from the date of service of writ and at half the judgment rate on the award for pre-trial loss of earnings from the date of Accident is to be taken into account, the plaintiff’s claim for damages should still be dismissed.

COSTS

111.On a nisi basis, I award costs of the assessment, including all costs reserved, to be paid by the plaintiff, with certificate for counsel, to be taxed if not agreed. 

Ms Mona Chhoa, instructed by B. Mak & Co, for the plaintiff

Mr Daniel KK Chan, instructed by Winnie Mak, Chan & Yeung, for the defendant