Chan Wa Kun v. Secretary for Justice for and on behalf of Correctional Services Department

HCPI 877/2012

[2019] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 877 OF 2012

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BETWEEN

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Before: The Honourable Mr Justice Bharwaney in Court

Dates of Hearing: 9-11, 14 August 2017

Date of Further Directions: 16 November 2017

Date of Judgment: 4 July 2019

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J U D G M E N T

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1.This is an action for damages for personal injuries arising out of an accident suffered by the plaintiff, Mr Chan Wa Kun, on 12 December 2009 whilst he was working for the Correctional Services Department (“CSD”) at Tung Tau Correctional Institution, 70 Tung Tau Wan Road, Stanley, Hong Kong (“the Institution”).

2.On 12 December 2009, at or about 11:35 a.m., the plaintiff, acting in the course of his employment with CSD at the Institution, walked down staircase number 4 (the “Staircase”), from the first floor to the ground floor of the Annex Block of the Institution, and fell down the steps, sustaining serious personal injuries.

3.The plaintiff contended that his injuries were caused by the negligence and/or breach of the implied terms of the contract of employment of the plaintiff and/or breach of statutory duty under the Occupational Safety and Health Ordinance, Cap 509, and/or breach of the common duty of care under the Occupiers Liability Ordinance, Cap 314, on the part of CSD, its servants or agents.

4.CSD denied liability and alleged that the accident was solely caused by the plaintiff’s own negligence; alternatively, that the accident was contributed to by the plaintiff’s own negligence.

5.The quantum of the plaintiff’s claims was also in dispute.

The oral and documentary evidence

6.In the course of a trial lasting 4 days, I heard oral evidence from the plaintiff, and his 2 witnesses, Mr Law Kam Fong (“Law”), an ex-colleague of the plaintiff who had retired from CSD in 2010, and Ms Lam Mei Yee (Madam Lam) who gave evidence that was only relevant to the claims on quantum.  The defendant called 6 witnesses: Mr Lau Kai Chi (“Lau”), Mr Mak Kin Sing (“Mak”), Mr Wong Kwong Tat (“Wong”), Mr Yeung Yiu Fai (“Yeung”), Ms Ho Pui Ki (Ms Ho) and Ms Chiu Suk Yee (“Ms Chiu”).  Ms Chiu gave evidence in relation to the plaintiff’s claims on quantum. Although Ms Ho also gave evidence about the plaintiff’s duties, most of her evidence related to the plaintiff’s claims on quantum. On the 4^th day of trial, I heard evidence from the medical experts, Dr Jack Wong Wai Kwong, the plaintiff’s orthopaedic expert, and Dr Poon Kai Ming, the defendant’s orthopaedic expert.

7.The trial bundles were over voluminous and consisted of 10 bundles marked A, B1, B2, C, D, E1-A, E1-B, E2-A, E2-B, and F.  Pursuant to a direction I gave in the course of the trial, the bundles were reduced to 3 core bundles marked CB1, CB2 and CB3[1]. 2 polaroid photographs were produced and marked as Exhibit D1 and Exhibit D2.

8.Mr Victor Gidwani appeared for the plaintiff and Ms Abigail Wong appeared for CSD.

LIABILITY

9.It was not in dispute that:

(a)  the plaintiff was employed by CSD as an Assistant Officer II (“AOII”);

(b)  the plaintiff was a very experienced staff of CSD, having worked for the CSD since 27 May 1991, and having been posted to the Institution since 31 May 2004, more than 5 years before the accident. He served CSD for 22 years before retiring on 10 January 2014;

(c)  the plaintiff fell at the Staircase at around 11:35 a.m. on 12 December 2009 when he was on duty at the Institution from 6:45 a.m. to 1:45 p.m.  At the material time, he was deployed as the officer-in charge to supervise a group of prisoners to perform cleaning work at the common areas of the Annex Block;

(d)  the cleaning work included the Staircase;

(e)  the plaintiff had been provided with a pair of shoes as part of his uniform by the defendant; and

(f)  some time after he fell, the plaintiff was found by his colleague, Wong, to be sitting down on the landing of the Staircase between the first and ground floors, with his back leaning against the wall.

10.It was the plaintiff’s case that he slipped and fell because the Staircase was slippery as it had been cleaned earlier[2]. Specifically, CSD was negligent in that:

(1)  the Staircase was wet after cleaning, and CSD had failed to keep them dry/clear up the wetness[3];

(2)  the Staircase was covered by old tiles which were not anti-slippery and the anti-slip edging was worn and not replaced[4];

(3)  there was no fan provided to dry up the Staircase[5];

(4)  no caution or warning was given about the risks of slipping and of falling, nor were signs about the slippery condition of the Staircase displayed[6]; and

(5)  proper shoes to avoid slipping were not provided to the plaintiff[7].

11.It was CSD’s case that, at the material time, the Staircase was clean, dry, unobstructed and in good and safe condition, as were the floor tiles of the Staircase, and that there was sufficient illumination and good ventilation[8].

12.The plaintiff made a written statement on 15 December 2009[9], 3 days after that accident,  that:

“since the weather on that day was humid and there was water stain on the staircase, I carelessly slipped on the upper staircase between the 1/F and G/F. This caused my waist belt [to] loosen. My head, neck and waist bumped into the staircase.”

13.In his second written statement to CSD[10], made on 19 May 2010, the plaintiff said:

“… when I went down from 1/F to G/F, I lost my balance at the staircase and slipped on the staircase.

…

Q.  Was the floor slippery on that day?

A.  The weather was humid on that day, but the floor was not too slippery.

Q.  Why did you slip on that day?

A.  I do not know why I lost balance and slipped.”

14.In his third written statement to CSD[11], made on 19 August 2010, the plaintiff said:

“I vaguely recall that on the day of the accident, the weather was humid, and the workshop led by me just finished cleaning the staircase … I walked down the stairs at normal walking speed until I reached the place of the accident. Since it happened all of a sudden, I am unsure which step I slipped from or my body position when I fell down or how I reported to the doctor of the hospital and only remember that my head, neck and my whole body were all very painful.”

15.In §6 of his first witness statement[12] he said:

(a)  he was on duty from 6:45 a.m. to 1:45 p.m.;

(b)  at about 9 a.m., he followed the usual work procedures to lead the prisoners in the cleaning workshop to clean from 1/F to 3/F of the New Annex of the Institution, including the Staircase;

(c)  at around 11:35 a.m., the cleaning work was completed and he brought the prisoners to the canteen at the New Annex to hand them over to other colleagues for supervision;

(d)  he then returned to the New Annex on his own to perform a final check, including turning off the switches in the New Annex and locking all the gates there;

(e)  when he was walking down the Staircase from 1/F to G/F, he suddenly slipped backwards;

(f)  his head, neck and waist hit against the Staircase and he suffered injuries;

(g)  he felt very dizzy and lay on the floor (i.e. the landing of the Staircase) because he was unable to get up;

(h)  his accessories, including the walkie-talkie, fell on the floor when the accident happened. As he was unable to pick up the walkie-talkie to ask for help, he could only lie on the floor moaning and calling out for help;

(i)  about 10 minutes after the accident, Wong, the supervisor of the New Annex, patrolled the location and found the plaintiff. Wong then asked for help by using the walkie-talkie.

16.Under cross examination, the plaintiff gave the following evidence:[13]

“Q.  …you were walking -- you were the only one alone on the staircase at the time.

A.  Yes.

Q.  Now, correct me if I’m wrong, but you were walking down in the middle of the staircase.

A.  I don’t quite remember.

Q.  Now, I suggest to you [that] you were not using the railing when you were walking down the stairs.

A.  I don’t remember.

Q.  And at the time, you were wearing the standard issue anti‑slip uniform shoes provided to you by the department.

A.  Right.

Q.  So at the time, I put it to you that if you used the railings, you wouldn’t have fallen on the stairs.

COURT:  If you had held onto the railing...

MS WONG:  Held onto the railing as he walked down the stairs...

COURT:  ...as you walked down, you would not have fallen.

Q.  You would not have fallen down.

A.  I don’t agree.

Q.  And if you had paid attention to where you were going, you would not have fallen down.

A.  I don’t agree, because the floor was slippery. There was water stain.

…

Q.  Now, Mr Chan, before you slipped, you took the 17 prisoners under your care to canteen number 2.

A.  Yes.

Q.  So when you did so, you took them from the 1st Floor to the Ground Floor, and they had to pass that very staircase where you slipped.

A.  Yes.

Q.  And I think you would agree that when they passed by, none of them slipped on those stairs.

A.  Right.

Q.  What footwear were these prisoners wearing?

A.  Slippers provided by the CSD.

Q.  Now...

COURT:  What material were the slippers made from?

A.  Plastic.

Q.  Now, after you slipped, there were officers who came to your aid afterwards.

A.  Yes.

Q.  In all of their statements, it is their position that the stairs were clean and dry and not obstructed.

…

A.  I do not agree. It was wet and slippery, but it was not obstructed.

…

Q.  Now, Mr Chan, you gave three statements to the department in relation to this 2009 accident.

A.  Yes.

Q.  Now, let’s look at the first statement. It is at bundle B1, tab 12, page 193.

COURT:  Is that the 15 December statement?

MS WONG:  Yes, it’s dated 15 December 2009.

Q.  This was the first statement you gave to the department.

A.  Yes.

Q.  Now, you said that after -- I think it was on the eighth line, starting with the word “After” -- “After locking the door of the storeroom, I went downstairs and was on the way back to dining hall 2. Since the weather on that day was humid and there was water stain on the staircase, I carelessly slipped on the upper staircase between the 1st and the Ground Floor.”

A.  I see that.

Q.  In this account of yours you say that the day was humid and there were water stains on the staircase.

A.  Yes.

Q.  The fact is that you retracted from this in your next statement dated 19 May 2010. Please turn to page 196 of this bundle. In fact -- yes, 196, you can see the date of this statement.

…

Q.  Just to look at the date of the statement and the very first few words on that page. And then my focus is on the next page, 197 on the English version, and there the question from Mr Yeung is: “Was the floor slippery on that day?” Your answer was: “The weather was humid on that day, but the floor was not too slippery.”

A.  I see that.

Q.  And then the next question was: “Why did you slip on that day?” And your answer was: “I do not know why. I lost balance and slipped.”

A.  I see that.

Q.  And let’s look at the third statement. This is at bundle E1‑8 at tab 5.

…

Q.  … Mr Chan, in this statement, your version was, fifth line down from the top: “I vaguely recall,” and in the Chinese version, you say, on again the fifth line: “依稀記得”. From there I read: “I vaguely recall that on the day of the accident, the weather was humid. … On the way back to the canteen I walked down the stairs at normal walking speed until I reached the place of the accident. Since it happened out of a sudden, I am unsure which step I slipped from or my body position when I fell down or how I reported to the doctor of the hospital and only remember that my head, neck and my whole body were very painful.” So, Mr Chan, I suggest to you that you weren’t sure why you fell down on the staircase.

A.  I agree.” [My emphasis]

17.Law did not witness the accident. He gave evidence about the conditions of the Staircase and the cleaning procedures[14].

18.CSD called Wong, Lau and Mak to give evidence:

(1)  Wong was the first person to discover the plaintiff after the accident. As the officer-in-charge of the Annex Block, he testified about the conditions in the vicinity of the accident scene at the material time, and also about the cleaning procedures and use of equipment;

(2)  Lau was an AOII of CSD who was summoned to the scene of the accident after the plaintiff had been injured; and

(3)  Mak was an AOII of CSD who worked as Gate Staff of the Annex Block. He was also summoned to the scene of the accident, and later took over the plaintiff’s belt and equipment.

19.Lau and Mak noted that the part of the Staircase from G/F to the landing where the plaintiff was found was clean and dry and that there was sufficient illumination[15].  Wong gave evidence that, on the day of the accident, he had walked past the part of the Staircase, where the plaintiff subsequently fell, once at 10:36 a.m.; and that, approaching 11:00 a.m., he had walked past that location a second time with other senior officers.  Finally, he walked down the Staircase a third time, after the accident, from the 1/F to where the plaintiff was.  On all occasions, he saw that the floor of the Staircase was dry[16].

The plaintiff’s previous falls and injuries

20.This is a very unusual case.  The plaintiff appears to be a person who is extremely accident prone.  As detailed in Table 1 of  Ms Wong’s written closing submissions for CSD, the plaintiff had 12 documented slip-and-fall (“S/F”) accidents between 2001 to 2009[17], the last of these accidents having occurred less than 2 months before the accident in question on 12 December 2009.  Out of these, 4 were slipping accidents[18] in, or right outside, the same bathroom at home[19]. 2 other S/F accidents[20] also happened at home when he slipped or tripped.  2 occurred[21] on the stairs (at the housing estate where he lived, and 3/F of the Staircase at the Annex Block) and 2 occurred[22] whilst he was jogging. He received medical treatment and was granted sick leave on each occasion[23].

21.Separately, as detailed in Table 2, the plaintiff suffered from back sprain on another 6 occasions between 2001 and 2007[24].  Out of these, 3 were in consequence of lifting heavy objects, and in respect of which he was granted 6 to 10 days of sick leave each time.

22.Tables 3 and 4 detail that:

(i)  he also suffered from a right wrist contusion and left thumb contusion[25]; and

(ii)  he also suffered from eye problems[26].

23.Mr Gidwani has submitted that the previous S/F accidents were irrelevant to the issue of liability or, at most, were of limited relevance and probative value[27]. I am unable to accept these submissions. I am firmly of the view that the previous S/F accidents are relevant to my determination of the issue of liability in this case. However, I do not find the matters that are set out in Tables 2, 3 and 4 to be relevant to my determination of this issue.

24.I now address in more detail the plaintiff’s 12 S/F accidents between 2001 to 2009.

25.On the evening of 2 September 2001, the plaintiff slipped in his bathroom at home and landed on his left buttock. He suffered from pain in his neck and left shoulder and left hip. He was given 3 days’ sick leave.

26.On 12 May 2002, he slipped and fell down, landing on his buttock, in the sitting room at home after the floor had been cleaned. He complained of low back pain and was given 67 days of consecutive sick leave.

27.On 13 December 2003, he slipped and fell outside the bathroom at home and complained of low back pain. He was given 4 days’ sick leave.

28.On 8 July 2004, he tripped over a cable at home and hurt his left knee. He was given 3 days’ sick leave.

29.On 24 October 2004, he slipped and fell at home and landed on his buttock. He complained of low back pain and left wrist pain, and was given 5 days’ sick leave.

30.On 20 April 2005, he slipped and fell in the bathroom at home and hurt his left knee. He was given 4 days’ sick leave.

31.On 8 August 2005, he hit his head against the top of the wooden cabinet in the bathroom, slipped and fell, and landed on both buttocks[28].

32.On 26 December 2005, he stumbled and fell, while jogging. He complained of left knee pain and right wrist pain. He was given 5 days’ sick leave.

33.On 1 February 2006, he was treated and discharged for left knee contusion and given one days’ sick leave. The elevator of his home was out of order and could only reach the 28^th floor. As he lived on the 32^nd floor[29], he had to walk up the staircase to get home. Whilst going up the staircase his knee hit against the steps. It was recorded in the notes of the Accident and Emergency Department that he “slipped and fell and that there was a direct contusion of left patella from the stairs”[30]. I find that, on this occasion, the plaintiff missed a step as he climbed up the stairs and that his left knee hit against the steps of the stairs. He was given one days’ sick leave.

34.On 3 July 2007, he slipped on the floor when exiting his bathroom and landed on his buttocks. He was treated and discharged and not given any sick leave as he was already on sick leave at the time, from 3 to 4 July 2007, for asthma[31].

35.On 23 July 2007, he fell down 7 to 8 steps, while at work, and suffered pain at his lower right leg. He received 10 days of consecutive sick leave for sprained back and ankle, and for ankle sprain injury.

36.On 13 October 2009, he fell on the left side of his body while jogging and injured his left elbow and left knee. He was given 14 days of non-consecutive sick leave from 13 October 2009 to 1 November 2009.

Discussion

37.The onus is on the plaintiff to prove that his fall was caused, or contributed to, by a breach of a duty of care owed to him by his employer, CSD.

38.In the course of his cross examination, the plaintiff agreed that he did not know the reason why he fell down the Staircase on the day in question. In his statement to the CSD, he had suggested that the weather was humid on the day in question and that there were water stains on the Staircase after the cleaning exercise. In his 2^nd statement to the CSD he said that it was a humid day but that floor was not too slippery, and that he did not know why he lost his balance and slipped.

39.People do not usually fall down when they walk up and down stairs. They may do so if they walk or run down the steps quickly, or without paying attention, and they miss a step; or if they walk or run up the steps quickly and the front of their shoe knocks against the top of a step. In both cases, they may lose their balance and fall. However, there is anecdotal evidence to suggest that 90% of slip cases happen because the floor is wet[32]. Even if a plaintiff in a slip and fall case is unable to give direct evidence why his foot slipped and caused him to fall, the court may infer from the evidence of the state of the floor, or the steps, at the accident location; the extent to which the accident location was sheltered from the elements; the weather condition at the time of the accident; the activities taking place at or near the accident location; and all other relevant facts and surrounding circumstances, that, more likely than not, the surface of the ground, or the step, from where the plaintiff fell, was slippery, by reason of the presence of water, or grease, or other slippery substance, and that the plaintiff slipped and fell because of the slippery surface. Of course, it does not automatically follow from a finding that a plaintiff slipped on a slippery surface that the defendant must be adjudged liable – the duty of care is not an absolute duty but a duty to take reasonable care[33].

40.In the present case, I could infer, from the fact that the plaintiff fell and from the evidence of the cleaning exercise that had taken place at the Staircase that morning, that the plaintiff slipped and fell because the surface of the step from which he fell was wet and slippery.

41.However, the plaintiff’s past history of falls, which I have set out above, raises the possibility that he fell because he missed a step and lost his balance. He could have missed a step by descending the stairs too quickly, or by reason of his own inattention. Having reviewed in detail the evidence of the plaintiff’s past falls, I assess this possibility, that he fell because he missed a step and lost his balance, to be high.

42.In addition to this high possibility that he fell because he missed a step and lost his balance, I have before me the evidence of CSD’s witnesses. I found all of them to be truthful and I accept their evidence in their entirety. In particular, the evidence of Wong was very supportive of CSD’s case. On the morning in question he had thrice walked passed the part of the Staircase where the plaintiff subsequently fell: once at 10:36 a.m., a second time approaching 11:00 a.m., and then after the accident, and, on all occasions, he saw that the floor of the Staircase was dry.

43.I am quite satisfied from the evidence and, in particular, the 2 polaroid photographs, Exhibits D1 and D2, that the floor tiles of the Staircase were in good condition and that the edge of the steps had suitable anti-slip grooves. I have had regard to the evidence of the degree of illumination and ventilation that was available at the accident location and the weather condition at the relevant time. I find that there was sufficient illumination and ventilation at the Staircase. The recorded level of relative humidity (81% to 88%) was insufficient to make the steps of the Staircase wet with moisture.

44.I also have before me the agreed evidence that the plaintiff was provided with a pair of shoes as part of his uniform. A photograph of the soles of these shoes appears in the Core Bundles at CG/77/561. I find that the shoes that the plaintiff was provided with were suitable for the plaintiff to wear in the course of his employment at the Institution. The shoes were in good repair and their soles were slip-resistant[34].

45.I am unable to find, on a balance of probabilities, that the plaintiff fell because he slipped on a wet step. I am unable to find, on a balance of probabilities, that the plaintiff’s fall was caused, or contributed to, by any breach of duty on the part of CSD. I find, specifically, that the plaintiff’s fall was not caused, or contributed to, by any defect or inadequacy of the shoes that he had been provided with and was wearing at the time of the accident in question. Further, on the evidence before me and, in particular, the evidence of the plaintiff’s 12 S/F accidents between 2001 to 2009, I am able to, and I do find, on a balance of probabilities, that he fell on 12 December 2009 because he missed a step as he went down the Staircase from the 1^st to the ground floor.

46.In the light of my findings, I need not address whether or not CSD’s system of work was safe or unsafe. Even if there were deficiencies in the system of work, I am unable to find, on a balance of probabilities, that the plaintiff’s fall was caused, or contributed to, by any breach of duty on the part of CSD.

47.For these reasons, I dismiss the plaintiff’s claims.

48.To cover the eventuality that I am overturned on appeal, I shall address the quantum of the plaintiff’s claims briefly.

QUANTUM

49.Ms Wong has provided a helpful summary of the parties’ respective quantum figures (which I have rounded off):

Head of claim	Plaintiff’s figures (HK$)	CSD’s figures (HK$)
PSLA	550,000	120,000
Pre-Trial Loss of Earnings	874,822	735,790
Loss of Earning Capacity	Nil	Nil
Post-Trial Loss of Pension	1,371,279	1,371,279
Post-Trial Loss of Earnings	561,272	Nil
Pre-Trial Expenses	4,294	2,144
Post-Trial Expenses	Nil	Nil
Loss of Housing Benefits	759,453	759,453
Sub-total:	4,121,120	2,988,666
Less: ECO Compensation received	804,199	804,199
Total:	3,316,921	2,184,467

50.The parties are agreed on the quantum of the claims for post-trial loss of pension in the sum of $1,371,279; and pre-trial and post-trial loss of housing benefits in the sums of $133,919 and $625,534 respectively, which make a total sum of $759,453 under this head.

Injuries and treatment

51.After the accident on 12 December 2009, the plaintiff was sent to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) by ambulance. He was fully conscious. Physical examination showed tenderness over the back of his head, neck and lower back, with no external wound, and mildly decreased muscle power.  X-rays showed no evidence of any fracture.  He was given intramuscular injection for pain relief and admitted to the Orthopaedic Ward that day for further management[35]. Examination at the ward showed mild tenderness over cervical spine and paraspinal region, with no upper or lower limb neurological deficit.  X-ray of the cervical spine revealed C6 osteophyte fracture at anterocaudal pole[36]. He was discharged on 14 December 2009 with improvement of his neck and back pain after conservative treatment[37].

52.He was followed up at the Orthopaedic specialist out-patient clinic of PYNEH for residual neck pain and decreased range of movement, and was referred for physiotherapy and occupational therapy[38].

53.He resumed work about 9 months after the accident but his condition deteriorated and he noticed numbness over both limbs.

54.On 28 May 2011, MRI of the cervical spine showed, amongst others[39]:

(a)  degenerative changes in the cervical vertebrae; desiccation seen in the cervical discs and mild narrowing of disc space is noted at multiple cervical levels;

(b)  cervical spondylosis, more severe at C4/5 with spinal stenosis and impression on the anterior aspect of the cervical cord; and

(c)  left C5/6 and right C6/7 intervertebral foramina significantly narrowed with possible encroachment of the existing nerve roots.

55.On 8 June 2011, he complained of persistent neck pain, right upper limb radicular pain, right numbness and weakness. Physical examination showed myelopathic hand sign and hyper-reflexia[40] of both upper limbs.  With MRI findings showing spinal stenosis at C4/5 level, he was advised to undergo cervical C4/5 anterior spinal fusion[41]. 

56.On 8 November 2011, he was admitted for surgical decompression and spinal fusion for C4/5 as advised, followed by physiotherapy[42]. The surgery was uneventful and he was discharged 3 days later.

57.He was followed up and he received physiotherapy and occupational therapy. Subsequent follow-ups showed:

(a)  25/1/2013: subsiding of neurological symptoms including numbness and weakness; walking tolerance of 45 minutes[43];

(b)  25/11/2013: no numbness, weakness or clumsiness of both upper limbs[44].

58.Post-operation MRI on 30 December 2013 performed at the Yan Chai Hospital Board Ng Shi Chow MRI Centre showed, amongst others[45]:

(a)  loss of cervical lordosis;

(b)  satisfactory alignment;

(c)  bony artefact at C4/5 was consistent with the operation;

(d)  posterior disc budges at C5/6 and C6/7, with no suggestion of spinal cord compression or myelomalacia;

(e)  narrowing of bilateral neuro-foramina noted at C5/6 and C6/7 levels consistent with cervical spondylosis; and

(f)  rest of the intervertebral discs appeared to be unremarkable.

Joint Orthopaedic Experts

59.The plaintiff was jointly examined by Dr Jack Wong appointed by the plaintiff, and Dr Poon Kai Ming appointed by CSD, on 9 May 2013. The experts prepared a joint medical report[46] and  a joint supplemental report[47].

60.The plaintiff reported the following symptoms to the experts at their joint examination:

(a)  left upper limb numbness, more severe on the left side;

(b)  constant numbness over face, neck, bone graft donor site and right thigh with similar intensity;

(c)  weakness of both hands;

(d)  constant pain over back of neck, minimum intensity of grade 4 to 5 after taking medicine or applying hot pad, maximum intensity over 8 upon riding on jerky public transport, walking for more than 30 minutes, during sudden change of weather, or on rainy or humid days, managed by resting, deep breathing and medications; and

(e)  neck pain when keeping the neck still for 15 minutes, such as when reading;

(f)  headache;

(g)  pain over bone graft donor site after running for 2 to 3 steps;

(h)  no more back symptom; and

(i)  unable to jog or resume sports for fear of re-injury.

61.Physical examination showed:

General:

(a)  normal walking, unsteady heel walking;

(b)  5 cm tender hypertrophic scar for bone graft donor site over right side of pelvis;

Neck:

(c)  no deformity or abnormal swelling;

(d)  5 cm well healed scar over front on right side;

(e)  pain over back of neck and both trapezius region;

(f)  reduced range of movement;

Upper limbs:

(g)  weakened hand grip strength on both sides;

(h)  reduced sensation from chest downwards by 10% to 40%, more severe on left upper limb, not over back of both lower limbs;

(i)  normal upper limb jerks.

62.X-Rays of the cervical spine taken at the joint examination (antero-posterior and lateral views) showed:

(a)  C4/5 vertebrae were fused solidly with metal cage;

(b)  marginal bone spur over lower end of C5;

(c)  degenerative disc disease over C6/7 with bone spurs formation over both front and back with narrowing of disc space; and

(d)  cervical lordosis was reduced.

63.Both experts agreed on the following:

(a)  the plaintiff suffered from the following after the accident:

(i)  neck injury with fracture of C6 osteophyte (small bone overgrowth from degenerative changes) and right upper limb nerve compression;

(ii)  head injury; and

(iii)  back injury;

(b)  and that:

(i)  such injuries were compatible with the alleged circumstances of the accident;

(ii)  owing to deterioration of symptoms[48], surgical decompression and spinal fusion for C4/5 were performed - such surgery was standard and appropriate in view of his deteriorated condition;

(iii)  he had residual neck pain and stiffness, upper limb weakness and numbness;

(iv)  the clinical and radiological features of the plaintiff were consistent with post-surgical status of cervical spinal stenosis with nerve de-compression surgery and residual features of nerve compression.

(c)  They also agreed that:

(i)  he had recovered well from his back injury with no residual disability, for which he had no current complaint;

(ii)  he had attained maximal medical improvement;

(iii)  he should be independent in his activities of daily living. There should not be any significant negative impact on his social activities orthopedically;

(iv)  he is unable to resume his pre-accident work in full capacity or “in an unmodified manner”;

(v)  he is likely to have neck pain after prolonged reading, using the computer or writing;

(vi)  the intermittent period of sick leave as granted from the date of accident to 10 May 2013 (i.e. the day after the joint examination), totalling 1,102 days, was reasonable;

(vii)  Dr Wong assessed the plaintiff’s impairment of the whole person from the neck injury at 8% whilst Dr Poon  assessed it at 3-4 %.

Pre-existing disability

64.The experts mainly differed on the extent to which the plaintiff’s pre-existing degeneration in the cervical spine contributed to his present condition.

65.Mr Gidwani and Ms Wong have made detailed submissions in their final submissions on this hotly contested issue[49].  Dr Wong was of the view that it was almost certain that the plaintiff would have gone through life without any neurological damage, because it was rare that his pre-existing condition would have been symptomatic. In the plaintiff’s case, the degeneration was accelerated by the accident. Dr Poon’s view was that, by reason of the generalized degenerative changes that had already manifested, it was likely that, at some point, the plaintiff’s condition would become symptomatic, but he could not be precise about the timing as to when that would happen[50]. According to Dr Poon, there was a definite possibility that the plaintiff’s would develop to his present orthopaedic state by the time he was beyond 60-65, even if the accident had not occurred.  He also stated that it was quite likely, although not 100% certain, that, even without the accident, the plaintiff would have required cervical spine surgery, given the whole picture of the degenerative changes to his spine, the cumulative pre-accident S/F accidents the plaintiff had suffered, and the likelihood that he would have continued to fall repeatedly[51]. As Dr Poon was unable to say that, without the accident, the plaintiff would have become symptomatic before the end of his retirement, the defendant accepted that there should be no deduction, on account of his pre-disability, to his claims for pre- or post-trial loss of earnings.

66.Having carefully considered the experts’ differing opinions in their joint reports and in the course of the testimony, I have come to the conclusion that I prefer the opinion of Dr Poon. I am impressed by his reasoning that the cervical spinal fusion surgery of C4/5 in 8 November 2011, was performed almost 2 years after the accident on 12 December 2009, whereas he had good initial recovery (60-70% improvement) within 6 to 7 month after the accident[52].  I accept his opinion that the cervical spinal fusion surgery was primarily the result of degeneration at multiple levels of the cervical spine, more on the posterior aspect, as shown by the MRI taken on 28 May 2011, rather than at C5/6, where the force of the impact at the time of the accident was concentrated and caused the fracture of the C6 anterior osteophyte[53].  I accept Dr Poon’s opinion that a single injury cannot cause desiccation of the intervertebral discs at multiple levels that was shown on the MRI of 28 May 2011[54]. I also accept Dr Poon’s opinion that the mild narrowing of disc space at multiple cervical levels that was noted in the said MRI was the result of natural degenerative changes[55]; and that the left C5/6 and right C6/7 intervertebral foramina that was significantly narrowed, with possible encroachment of the existing nerve roots, as noted in the said MRI, was also the result of natural degenerative changes as injury could not cause narrowing of these foramina, which were small holes on the side of the vertebral column from where the spinal nerve roots extend outwards, and that such narrowing was mostly caused by overgrowth of osteophytes[56]. Finally, I prefer the opinion of Dr Poon that, if the accident accelerated the degenerative changes, then the effect of those accelerated degenerative changes would have been more pronounced on the discs, rather than on the osteophytes and the intervertebral foramina that was shown up on the MRI of 28 May 2011: the intervertebral foramina were surrounded by bone and if the bone grows more on it, it narrows; the holes are also coated by ligaments and if they harden or thicken, the nerve roots have less room which causes irritation compression and numbness [57].

67.I am able to conclude, based on Dr Poon’s evidence which I have accepted, that, by reason of the generalized degenerative changes that had already manifested, it was likely that the plaintiff’s condition would have become symptomatic at some point of time in the future, even if he had not suffered this accident.  The more difficult question in this case is when those symptoms would have materialised, if the accident had not occurred, and whether those symptoms would have required the plaintiff to undergo cervical fusion surgery.  Dr Poon’s answers to my questions on these points appear in the following extract of the transcript[58]:

“COURT:  Now, if the accident had not occurred, what do you think would have been the -- his prognosis in terms of development of symptoms and when they would develop and...

A.  Well, I put it into two aspects: one is the likelihood and then the other thing is the timing...

COURT:  Right.

A.  ...of when it -- it is going to occur.

COURT:  Yes, I’d like to hear on both -- both aspects.

A.  The first thing, the likelihood, I would put more emphasis that the likelihood is more definite, right, because of the pictures shown such -- so generalised changes in -- already. So at certain time of his -- his ongoing life, he will encounter some symptoms, right. But, on the other hand, the timing of when it occur[s] is difficult to be accurately predicted.

COURT:  It could be later in life.

A.  Yes, it could be later in life.

COURT: It could be...

A.  Although in my report I -- I -- I give some figures, but I understand that, well, we...

COURT:  There’s a -- there’s a large margin of error in these sort of guesses, really.

A.  Yes, yes, yes, because we honour the court to make the final decision about figures and how much is the figure, but then we just quote some or for -- in our own opinion.”

68.I find on a balance of probabilities that the plaintiff’s cervical spine would have become symptomatic at the latest by age 65, if the accident had not occurred.  However, I am unable to find, on a balance of probabilities, that, without the accident, he would have developed symptoms that required cervical spinal fusion surgery.  However, I do find that there was a likelihood that he would have required cervical spinal fusion surgery, if not at age 65 then a few years later.

69.The plaintiff was about 43 years old at the time of the accident, about 45 years old at the time of cervical spinal fusion surgery, and is almost 53 years old today.  Given the long period of time that the plaintiff would have been asymptomatic, if this accident had not occurred, and given the future uncertainties highlighted above, I am only prepared to discount my award for damages for PSLA by 15% on account of the plaintiff’s pre-existing disabilities[59].

Psychiatric evidence

70.I need not delve into the psychiatric evidence given Mr Gidwani’s concession that “in the light of the psychiatric evidence, the plaintiff is not emphasising on his psychiatric impairment in the assessment of damages save and except that the court is invited to bear in mind that the plaintiff was a Correctional Services Officer and hence his mental health was pivotal in order for him to carry out his duties fully, especially when dealing with prisoners”[60].  No doubt this concession has been made because the plaintiff admitted under cross examination that he had lied to his treating psychiatrists, as well as to the joint psychiatric experts when he was interviewed by them on 22 August 2014[61].

Pain, suffering and loss of amenities (“PSLA”)

71.I have reviewed the authorities cited by counsel on comparable PSLA awards[62]. I agree with Ms Wong’s submissions that Lau Koon Loi v Wong Wai Sing & Anor HCPI 445/2007, 28 June 2011, Suffiad J, was a good comparable on the award for damages for PSLA.  In that case, the plaintiff, a 44 year old aircraft tractor driver, was injured when a vehicle driven by the defendant collided with the offside front of the vehicle he was driving.  He was initially diagnosed to have suffered head injuries and some mild swelling over his right leg.  X-rays showed no fracture.  Subsequently, he complained of neck stiffness, tenderness, pain and numbness over the left trapezious and lower cervical spine.  From an MRI that was taken, it was seen that he had disc protrusion at C5/6 level causing slight narrowing of the spinal canal and slight indentation of the anterior surface of the cervical cord.  Degenerative changes were also identified at the C5/6 junction.  He developed erectile dysfunction problems as well.  The experts opined that the mild disc protrusion was not significant enough to cause myelopathy or radiculopathy, and was more likely to be the result of a pre-existing degenerative process. Psychiatric experts determined that the claimant suffered from an adjustment disorder with symptoms of depressed mood. Having considered that the protruded disc was caused by a combination of degenerative changes to the cervical spine, and  aggravation by the soft tissue muscle sprain when the accident happened[63], Suffiad J found the plaintiff’s injuries to be just below the lower end of the serious injury category, and awarded $400,000 as damages for PSLA.  In the light of the authorities she had cited, Ms Wong submitted that an award of $550,000 for damages for PSLA would be fair as a starting point[64].

72.I have also perused the recent decision of Master J Wong in Xu Xinhong v Cheung Chu Lau HCPI 554/2015, 13 February 2018.  He awarded $550,000 as damages for PSLA to the plaintiff who suffered neck, chest and right leg injury in a traffic accident.  The neck injury triggered her pre‑existed degeneration.  Without it, she could probably have remained symptom free for life.  MRI of the cervical spine showed central disc herniation with cord compression.  An operation of anterior discectomy and fusion of the cervical spine was performed, leaving a scar affecting her appearance and self‑esteem.  She would have on and off attack of neck pain and stiffness when lifting heavy objects and from prolonged walking, sitting and standing.  The plaintiff also developed psychological and psychiatric symptoms of the accident.

73.Until such time as it may be revised upwards on account of inflation, the current starting point for general damages for PSLA for injuries falling within the serious injury category of disablement is $530,000[65]. I accept Dr Wong’s opinion that the plaintiff’s injury amounts to Class 1 cervical spine impairment for which an assessment of 8% impairment of the whole person is appropriate[66]. Given Mr Gidwani’s concession on the plaintiff’s psychiatric impairment, I assess the plaintiff’s orthopaedic condition as falling slightly below the serious injury category. But for his pre-existing disability, I would have awarded damages for PSLA in the sum of $475,000 for the orthopaedic injury. I discount this amount by 15%, on account of his pre-existing condition, and award $400,000 (rounded off) as damages for PSLA.

Pre-trial loss of earnings and other special damages

74.The plaintiff claims pre-trial loss of earnings in the sum of $874,822 whereas the defendant offers the sum of $735,790 (rounded off) under this head of claim.

75.I am satisfied on the evidence that;

(1)  the plaintiff received his salary in full from 12 December 2009 to 29 March 2013.  Therefore, there was no loss of earnings from 12 December 2009 to 29 March 2013;

(2)  from 30 March 2013 to 10 May 2013, he suffered loss of earnings of $35,011 (being $1,570 from 30 to 31 March 2013, $25,285 from 1 to 30 April 2013 and $8,156 from 1 to 10 May 2013);

(3)  from 11 May 2013 to 19 September 2013, he received his salary in full.  There was no loss of earnings during this period;

(4)  from 20 September 2013 to 11 December 2013, he received half-pay salary.  During this period, his loss of earnings was $34,407 (being $4,637 from 20 to 30 September 2013, $12,642 from 1 to 31 October 2013, $12,642 from 1 to 30 November 2013 and $4,486 from 1 to 11 December 2013;

(5)  from 12 December 2013 to 10 January 2014, he was granted 30 days ex-gratia leave and he received his salary in full.  There was no loss of earnings during this period; and

(6)  on 11 January 2014, he retired.

Accordingly, I find that the plaintiff suffered loss of earnings from 12 December 2009 to 10 January 2014 in the sum of $69,418.

76.I am also satisfied on the evidence and, in particular, the expert orthopaedic evidence, that he retired early on medical grounds on 11 January 2014 when he was aged 47, as he could not return to his pre-accident work. The plaintiff obtained alternative gainful employment on 1 June 2015, almost 17 months after his premature retirement, at a NGO from 1 June 2015 to 30 August 2016 as a development of social enterprises assistant earning $10,000 per month. He had worked there previously without any salary.  Thereafter, from 1 September 2016 up to the present, he worked as a paralegal at a law firm earning $12,000 per month.  I find that he failed to take reasonable steps to mitigate his loss and that he ought to have found suitable gainful employment, earning at least $10,000 a month, no later than 1 April 2014. At the time of the accident, his average monthly salary was $23,215, including overtime payments.  His salary, had he continued to be employed by CSD, would have increased to at least $29,185 as at 1 April 2016.  Taking a median notional loss of earnings of $26,200 ($23,215 + $29,185 / 2), I assess his pre-trial full and partial loss of earnings from January 2014 to June 2019,  a total months of 66, as follows:

($26,200 x 3 months) + ($26,200 - $10,000 x 29 months) + ($26,200 - $12,000 x 34 months) = $1,031,200.

77.For the reasons set out in §167 of my decision in Yeung Lai Ping v. Secretary for Justice HCPI 833/2002, 1 April 2019, I have not deducted the amount of pension that the plaintiff has received since his retirement on 11 January 2014.  Where loss of pre-retirement income is in issue, pension payments received from the employer before what would otherwise have been the date of retirement are not to be taken into account in assessing the plaintiff’s loss: the pension payments that the plaintiff has received were funded by contributions from his salary towards the pension fund when he was employed and the payment of pension to him represents the fruit of his contributions – these pension payments are in the same position as insurance money[67] and are not to be set off against the claim for loss of earnings[68].

78.I award the total sum of $1,100,618 ($69,418 + $1,031,200) to the plaintiff as special damages for pre-trial loss of earnings.

79.I am satisfied that the plaintiff has incurred expenses, by reason of the accident, in the sum of $4,294, as claimed, and I award this amount to him as special damages.

Post-trial loss of earnings

80.The plaintiff is aged 52 years and 9 months today.  I find on the evidence that it was most unlikely that his retirement age would have been extended beyond the age of 55. I also find that, if this accident had not occurred, he would have obtained alternative employment, after his retirement from CSD at age 55, and that he would have finally retired at age 65.

81.I find that he will suffer from partial post-trial loss of earnings for a period of 2 years and 3 months until he attains age 55.  I conclude that, thereafter, he would not suffer from any further partial loss of earnings as I am not satisfied that his notional earnings (on the basis that he did not suffer this accident) from age 55 to age 65, when he would have finally retired if this accident not occurred, would have exceeded his present income.

82.I assess the plaintiff’s partial post-trial loss of earnings as follows:

($29,185 - $12,000) x 12 months x a multiplier of 2[69] = $412,440

I award this amount the plaintiff as damages for post-trial loss of earnings.

Summary of my assessment and interest

83.A summary of my assessment appears below:

Head of claim	My award figures (HK$)
PSLA[70]	400,000
Pre-Trial Loss of Earnings[71]	1,100,618
Pre-Trial Expenses[72]	4,294
Pre-Trial Loss of Housing Benefits[73]	133,919
Post-Trial Loss of Housing Benefits[74]	625,534
Post-Trial Loss of Pension[75]	1,371,279
Post-Trial Loss of Earnings[76]	412,440
Loss of Earning Capacity	Nil
Post-Trial Expenses	Nil
Sub-total:	4,048,084
Less: ECO Compensation received	804,199
Total:	3,243,885

84.In addition, the above award would attract interest on general damages for PSLA at 2% per annum from the date of service of the writ to the date of judgment and interest at half the judgment rate, currently at 4.0625%, on pre-trial special damages, including pre-trial loss of earnings and pre-trial loss of housing benefits, from the date of the accident up to the date of payment of employees’ compensation and, thereafter, on the remaining balance, after deducting the amount of employees’ compensation therefrom, from the date of payment of employees’ compensation to the date of judgment.

Conclusion

85.For the reasons stated above, I dismiss the plaintiff’s claims and make a costs order nisi that the plaintiff pays the defendant’s costs of the action to be taxed, if not agreed; and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Mr Victor Gidwani, instructed by Chiu, Szeto & Cheng, assigned by Director of Legal Aid, for the plaintiff

Ms Abigail Wong, instructed by Department of Justice, for the defendant