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