Raut Puspa v. S. P. Engineering (Hong Kong) Ltd and Another

HCPI 302/2019

[2024] HKCFI 1878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 302 OF 2019

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J U D G M E N T

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1.For injury during manual unloading work at a construction site in August 2016, the plaintiff (“Raut”) claims against his employer, the 1^st defendant (“SPE”), and the main contractor, the 2^nd defendant (“LG”). Where appropriate, SPE and LG are collectively referred to below as the defendants.

BACKGROUND

2.The accident happened on 23 August 2016. At the time, LG was the principal contractor of the construction site at Austin Road West, Tsimshatsui (“the Site”) while SPE was one of its subcontractors. Then 29-year-old Raut was a general labourer employed by SPE. He started working for SPE in April 2016.

3.In that morning, Raut was assigned by his supervisor, Limbu Bisuwa (“Limbu”), to work with co-worker Pun Magar Anup (“Pun”). It was raining, and their job was to load bundles of plastic sheets onto the back compartment of a crane truck, which would transport the same to Basement 2 level (“B2”) of the station core of the Site for unloading. There the plastic sheets were needed for shielding off rainwater seeping from the screen wall.

4.As it turned out, it was Limbu and Raut who carried out the loading of about 25 bundles of plastic sheets. The driver then drove the crane truck loaded with the plastic sheets, and then dropped Limbu and picked up Pun on its way to the unloading point. The trip to the unloading point also proceeded in the rain.

5.The crane truck with Raut and Pun on board arrived at the unloading point at B2 and parked by the side of the road. Raut got into the back compartment of the truck while Pun got to the ground by the side of the back compartment of the truck. Manually Raut picked the plastic sheets bundle by bundle and passed them to Pun, who then dumped them onto the side of the footpath. In the course of handling a bundle, Raut stepped on some plastic sheets and slipped. Upon that he sprained his back.

6.According to Raut, Pun helped him to rest while the rest of the job was taken over by another worker. Pun reported the accident to Limbu. Raut took some rest, and was eventually accompanied by the site safety officer to a private clinic in the afternoon.

7.On 5 August 2019, Raut commenced the present action.

THE PARTIES’ RESPECTIVE CASES ON LIABILITY

8.The pleaded case of Raut is that he had no prior notice or received prior warning in relation to the condition of the plastic sheets. Nor had he been provided with adequate tool or equipment to perform his work safely. He contends that as such, the accident was caused by the breach of duty of reasonable care on the part of SPE and/or LG under the Occupational Safety and Health Ordinance, Cap 509 and Regulations, Cap 509A, Occupiers Liability Ordinance, Cap 314, the implied terms of employment as well as generally.

9.By pleading, the defendants deny the alleged breach of duties on their part. They also contend that the accident was caused or contributed to by Raut’s own negligence which caused him to slip in a manner unknown to them. The alleged negligence arose out of his:

(1)  stepping on the plastic sheets knowing full well they were wet;

(2)  failing to heed the wetness of the plastic sheets;

(3)  failing to keep a proper balance of himself;

(4)  failing in the circumstances to have any or any sufficient regard for his own safety.

WITNESSES

10.Besides himself, Raut called Limbu and Pun to give evidence. His wife also testified.

11.The defendants did not call their sole witness as to fact, who was at the material time the principal project director of LG. His witness statement is therefore disregarded.

12.As to how credibility of witnesses is to be assessed, the principles are often cited: see for instance, Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) at §§77-83. Essentially, the court will assess the witness’ evidence against the undisputed or indisputable documentary evidence, inherent plausibility as well as internal consistency or inconsistency.

LIABILITY AND CONTRIBUTORY NEGLIGENCE

13.At the commencement of the trial, counsel for the defendants confirmed that they would admit liability, but would argue that Raut was contributorily negligent in causing the accident.

14.Liability may not be admitted in vacuum, and could only be based on the contentions of the plaintiff.

15.By the allegation that he had no prior warning or notice in respect of the condition of the bundles of the plastic sheets, Raut could only be referring to their shape and weight. The evidence is that each bundle was about 2 feet by 2 feet and half a foot thick. It was raining at the time when the bundles of plastic sheets were loaded onto the crane truck. Both the back compartment of the truck and the bundles were wet. Raut admittedly witnessed that. In other words, he could not seriously deny knowledge about the wet condition.

16.The photographs depict the type of crane truck and the environment of the unloading point where it was parked. The crane of the truck could not be used in such environment. Nor was a forklift available for use. Raut and Pun had to unload the bundles manually.

17.As mentioned, the case of Raut is that he was standing in the back compartment of the truck, picking up the bundles there and passing them to Pun who was standing on the ground. In the course of that, Raut slipped when he stepped on the wet plastic sheets while holding a bundle in hands.

18.Whilst the precise weight of each bundle of plastic sheets at the material time is disputed, including whether they materially gained weight because of the rainwater, the evidence, including the photographs depicting similar bundles, tends to suggest it was of some weight, even if not 35-40 kg as alleged, and would require both hands to handle.

19.In the abovementioned circumstances, the basis for attributing liability to the defendants, which they now admit, could only be their failure to provide a reasonably safe system of work, and thus causing or allowing Raut to have to manually handle the plastic sheets of such weight in a wet condition without adequate tools, equipment and manpower.

20.As pleaded, contributory negligence is said to arise from the alleged failure of Raut to heed to his own safety whilst knowing full well the plastic sheets and the working environment were wet. When he opened his case, counsel for the defendants also repeated that Raut stepped on the plastic sheets knowing full well that they were wet, and failed to find stronger foothold for himself by standing on the level surface of the skip of the crane truck.

21.However, in the course of the evidence and eventually submissions, issue arose as to whether the defendants are entitled to run their case also on the basis that Raut caused the state of the bundles of plastic sheets in the back compartment of the crane truck in the first place by loading them in the manner such as throwing them onto the truck. This is not a pleaded basis of the contention of contributory negligence.

22.Counsel for Raut argues that the defendants should not be allowed to advance their case on contributory negligence on the un-pleaded basis. He refers to authorities emphasizing the significance of pleadings for the fair resolution of the dispute between the parties: see Kwok Chin Wing v 21 Holdings Limited (2013) 16 HKCFAR 663; Hong Kong Civil Procedure 2023 (Vol 1) at §18/0/3. In respect of this trite principle, nothing much needs to be said.

23.That Raut loaded the bundles of the plastic sheets into the back compartment of the crane truck in the manner as mentioned was Raut’s own case and evidence. Reference to that as the fact would not cause surprise. However, where one seeks to attribute blame to Raut on such basis for the occurrence of the accident, one does need to be cautious.

24.One may argue that with hindsight, had the bundles of plastic sheets been loaded differently, such as by their being stacked properly along one side of the back compartment of the truck, they might have been fetched by the workers standing on the ground by that side of the truck. That way, Raut might not have had to stand in the back compartment and thus avoiding the risk of stepping on the wet bundles scattered there. One may follow by arguing that Raut was therefore the author of the state of the bundles of plastic sheets in the back compartment of the truck in the first place. In view of any argument along that line, one may even start querying whether that would have the effect of rendering the defendants’ admission of liability equivocal. Of course, the defendants never suggest to withdraw their admission of liability.

25.In my judgment, it would not be fair to proceed on the above basis and conclude that it was Raut’s design or initiative to load the bundles of plastic sheets in the manner as described without regard to the circumstances at the time. According to him, which I accept, it was the first time he was assigned to load and unload the plastic sheets at the Site. Raut was supposed to work quickly as it was already raining, and the plastic sheets were needed at B2 to prevent rainwater from seeping from the screen wall there. Raut worked pursuant to the instruction of Limbu who was his superior at the time. Limbu loaded the bundles in the same manner, and Raut followed suit. There was no additional manpower, tools or equipment provided to enable or to facilitate the loading in a different manner and expediently.

26.Albeit explored in the course of the oral evidence, whether or not a different manner of loading the bundles of the plastic sheets in the first place would have caused a material difference to their state at the time of the unloading is hardly certain as a matter of fact. The proposition on behalf of the defendants is that the bundles of the plastic sheets could have been stacked orderly near to one side of the back compartment of the crane truck so that the same could have been retrieved without the risk of Raut stepping on them. Apart from what was discussed above, there was lack of evidence in respect of the condition of the truck’s trip from the loading point to the unloading point at B2 level as well as its impact on the state of the bundles on board, whether or not placed or stacked differently from what happened. These concerns could not be fairly explored without actual pleading, which would have triggered the relevant discovery and evidence.

27.In other words, judgment by more hindsight than fact runs the risk of assumption.

28.The risk of injury in the present case arose out of stepping on wet and slippery surface inside the back compartment in the course of unloading. As the loading took place in the rain, the relevant risk would have existed in the back compartment and not necessarily on the bundles of plastic sheets at the time of unloading. The defendants’ admission of liability must be founded and accepted on the basis of their failure to prescribe a system of work which would have prevented such risk in the circumstances. The only proper basis on which contributory negligence should be assessed is indeed the fact that Raut stepped on the plastic sheets which were wet. That contributed to the accident.

29.Various authorities are cited by the defendants to assist this court in assessing the issue: Lau Kam Tai v United Soundfair Engineering Co Ltd, CACV 181/1999 (21 January 2000); Chan Chi Kee v Secretary for Justice, DCPI 720/2004 (15 August 2005); Fong Yee Yan v Secretary for Justice [2023] HKCFI 844 (24 March 2023).

30.The only criticism that may be laid against Raut is what was expected of him in taking care of himself when he was clearly aware of the fact that he had to handle the weight which was wet as well as that he had to step on wet and slippery surface. Be it the back compartment of the truck or the plastic sheets, he was expected to take extra care in his steps in any event. There is no dispute that he was wearing his working boots, and it does not matter whether they were supplied by his employer, when there is no contention that his boots were inappropriate and ineffective in offering reasonable protection. Other than that, Raut did not conduct extraordinarily in the course of his unloading work. For all that could be reasonably expected and criticized of Raut at the time, any failure of his to take care in moving around in the course of his unloading work should attract degree of contributory negligence not exceeding 10% in the circumstances. I so find.

QUANTUM

Personal background

31.Raut came from Nepal to Hong Kong in 2016. He is married with an infant daughter. At the time of the accident, he was 29 years old.

Injuries and treatment

32.On the day of the accident, Raut was taken to see Dr Eric Chak, a private medical practitioner. Complaint about sprain of back due to slipping while lifting heavy object, but no fall or contusion injury, was recorded. Physical examination suggested tenderness at L4/5 with para-spinal muscle tenderness. Analgesics was prescribed. X-ray of his lumbosacral spine on the following day suggested loss of lumbar lordosis probably related to muscle spasm. He resumed work after 2 days of sick leave.

33.On 25 August 2016, Raut attended the Accident & Emergency Department (“A&E”) of Queen Elizabeth Hospital (“QEH”), complaining about back pain. Tenderness of his back was detected, and X-ray of his lumbar spine showed evidence of muscle spasm. He was discharged on the same day with 7 days of sick leave.

34.On 26 August and 5 September 2016, Raut went to see Dr David Ip, an orthopaedic specialist. MRI of the lumbosacral spine suggested lumbar scoliosis concave to the right side, neural foraminal narrowing at right L3/4, L4/5, L5/S1 and left L5/S1. L4/5 showed posterior disc bulge causing mild spinal stenosis, but no compression of nerve root. L5/S1 showed posterior central and left paracentral broad-based disc protrusion causing mild spinal stenosis and left lateral recess stenosis touching or compressing the left S1 nerve root. Alignment of lumbar spine however was normal. No abnormal bone marrow signal or lesion was detected. Radiation of pain to the left L5 dermatome remained.

35.Raut re-attended the A&E of QEH on 17 September 2016, complaining about persistent back pain which radiated to his left leg. He was referred to the Orthopaedic Department for management. On examination, tenderness over lumbar spine was suggested, and Raut complained of numbness and decrease in light touch sensation throughout his entire left leg. The X-ray was reviewed. Medication and physiotherapy were given. He was discharged after 4 days. A pair of elbow crutches were prescribed for him.

36.At the initial assessment by the physiotherapy department of QEH on 28 October 2016, Raut complained of severe low back pain and left lower limb pain. Active range of motion of the lumbar flexion was limited. At the assessments in November 2016 and early March 2017, Raut still complained of his low back pain, and he was still relying on elbow crutches. Physiotherapy sessions continued for a total of 29 sessions up to 18 July 2017. Hydrotherapy was also given. Raut reported only some improvement. Lumbar extension and bilateral side flexion were originally limited to ¼ range, and there was little movement with lumbar flexion and bilateral rotation. Straight leg test was positive with the left side worse than the right. No significant neurological deficit was noted. Progress became static. He defaulted attendance since July 2017.

37.Raut was again admitted to the orthopaedic ward of QEH on 23 July 2017, complaining about low back pain radiating to the left lower limb as well as back pain. He was discharged on 28 July 2017. A second course of physiotherapy was prescribed, which lasted for 13 sessions. At the assessment on 6 December 2017, Raut maintained his complaint about pain and restricted movement. Straight leg test was positive at 30° bilaterally. No significant neurological deficit was detected.

38.Raut was referred to a third course of physiotherapy from 1 March 2018, which lasted for 8 sessions up to 17 May 2018. His complaints were similar as before. Straight leg test was worse on the left than the right side.

39.He reported related medical consultation in Nepal in early 2019 when he went and stayed there for a month.

40.Raut reported low mood since the end of 2016. On 26 January 2018, he was first seen by the psychiatrist at Kowloon Hospital. He reported hearing voices, fleeting self-harm and suicidal ideas. He became more irritable. Sleep and appetite were said to be affected. He was diagnosed as having a major depressive episode with psychotic symptoms. He had regular follow-up every 2-3 months. With medication, he was noted to be mentally stable after December 2018. Psychiatric follow-up continued.

41.For the purpose of his employees’ compensation claim, Raut was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) in August 2018. For his back sprain resulting in L3/4/5 mild prolapsed intervertebral disc as well as L5/S1 prolapsed intervertebral disc and nerve root compression, Raut was assessed to be suffering 13% loss of earning capacity. The assessment was reviewed and adjusted to 15% loss in November 2018. Sick leave from 25 August 2016 to 7 August 2018 was endorsed.

42.Raut returned to work in September 2019 but as a restaurant receptionist, which he allegedly did not manage after slightly less than 2 weeks. He had also worked as a salesman at a store briefly in mid-2022.

Present complaints

43.Raut was examined jointly by the orthopaedic experts, Dr Chan Tun Kut (“Dr Chan”), instructed on behalf of Raut, and Dr Ko Put Shui Peter (“Dr Ko”), instructed on behalf of the defendants, on 18 February 2020.

44.At the joint medical examination, Raut complained about continuous low back pain. The pain would be worse especially in the morning. After sitting for 30 minutes, he would need to change posture. Standing tolerance was 20 to 30 minutes before he would need to walk or sit down. He could walk for 45 minutes before needing to rest. He would use the elbow crutches outdoors but not indoors unless under very painful condition. He could cope with climbing stairs in a slow pace and with pain.

45.Raut also complained of continuous pain at left leg, which would radiate from the left heel to the thigh/calf, then from left gluteal to the left foot. There was also pain at the back of the heel. Sometimes, the pain would come with burning sensation, which affects his sleep. He would take analgesics twice a day. He also complained of on and off pain at right heel while standing, which started in about 2019. The pain would subside after enough rest, but would increase after standing and walking.

46.Overall improvement, according to Raut, remains at 25-30%. Now he would avoid carrying weight. He manages to lift about 1-2 kg. He manages taking public transport.

47.Raut complained of psychiatric problems, including insomnia (daily sleep of less than 4 hours), negative thought and worry about physical health.

Orthopaedic expert evidence

48.Dr Chan and Dr Ko produced their joint expert report dated 21 April 2020.

49.The experts observed that Raut relied on elbow crutches or other surrounding support in moving around, and that he managed minimal squatting. Range of motion of the back was limited due to back pain. Straight leg raising and lower limb sensation when lying supine suggested his left side was about half capable compared to his right side. Range of movement, muscle power and reflex of his left big toe and ankle were slightly compromised compared with his right side. Knee and hip power, calf girth and lower limb jerks of both sides were all normal. However, flip test while sitting suggested that his left side is about half capable compared to his right side. In the areas of vertex and shoulder compression as well as shoulder elevation and truncal rotation, Waddell signs were all negative. On palpation, there was tenderness in the midline from L4/5 down to S1. There was tenderness in the left posterior buttock, thigh and calf. Muscle spasm was no longer detected.

50.X-ray taken on 18 February 2020 suggested no radiolucent fracture lines or vertebral collapse over the lumbosacral spine. Band shaped sclerosis overlying the right and left transverse processes of L3 vertebra suggested possible old fractures or stress fracture. Narrowed L3/4 and L4/5 disc spaces suggested disc degeneration and disc herniations. Minimal degenerative changes were seen over the lower lumbar spine. Mild scoliosis was noted.

51.Dr Chan opined that Raut sustained low back injury with multiple disc prolapse resulting in multiple level spinal stenosis (L3/4, L4/5, L5/S1) as well as left S1 nerve root compression affecting his left ankle and big toe as well as left straight leg raising. The expert opined that Raut at his age was unlikely to have suffered from significant degenerative spine by the time of the accident, and the MRI in August 2016 showed the disc prolapse without significant osteophyte formation. The expert therefore took the view that there was no obvious evidence of pre-existing significant lumbar spine degenerative changes, and Raut’s current condition was likely to have been solely caused by the accident.

52.Dr Ko opined that Raut suffered soft tissue lower back sprain with left lower limb radicular symptoms. The expert observed from the MRI in August 2016 obvious features of pre-existing degenerative changes in the lumbar spine including multiple level disc desiccation, disc space decrease and facet joint hypertrophy, though no compression of nerve root at L3/4, L4/5 and no significant central spine stenosis at L5/S1. Apart from facet joint degenerative disc desiccation, a left para-central broad disc protrusion also caused mild spinal stenosis and left lateral recess stenosis, touching or compressing the S1 nerve root. Dr Ko opined that Raut’s degeneration was pre-existing, but the accident could have caused an exacerbation of the pre-existing para-central disc protrusion or disc desiccation resulting in the protrusion and the mild spinal stenosis at the left touching the left S1 nerve root.

53.Dr Ko opined that the touching of the left S1 nerve root could have caused sciatic symptoms with radiation to the left posterior leg, and could have at times caused mild numbness in the S1 dermatome. That however should not have accounted for the complaint about general weakness and numbness of the whole leg or even the right side. Hence suspected exaggeration or magnification, which the expert detected from his reading of the clinical records to have been present some time in 2017. The expert considered that the period of treatment of Raut was longer than what would have been expected for the type of injury and conditions. The expert also had reservation about Raut’s continuous reliance on crutches for ambulation.

54.Dr Ko believed that the mild pre-existing degeneration of Raut had been asymptomatic, but was exacerbated by the soft tissue sprain injury and resulting in the accelerated surfacing of his present condition by 7-8 years. His case belongs to the second scenario as explained in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, namely that there is strong possibility that he might have developed into the present condition even in the absence of the accident. Dr Chan expressed a different view, and effectively considered that Raut’s case falls into the first scenario, namely he would have gone through life unaffected by his any pre-existing degeneration but for the accident.

55.Dr Chan recommended laminectomy of L3-L5 and discectomy of L5/S1 if the response to conservative treatment was not good. The fact was that surgery had once been considered but ruled out on account of the incidental risk. Dr Ko opined that Raut’s condition has become static and has reached maximal medical improvement by December 2017 or January 2018. The overall prognosis should be fair. Raut may have on and off low back pain and left leg pain after standing and walking for variable distance and after prolonged sitting. Dr Ko opined that Raut’s injury as a result of the accident should carry good to excellent progression while the present or residual symptoms are attributable to his degenerative changes. Dr Chan and Dr Ko assessed Raut’s whole person impairment at 23% and 9% respectively. Of the impairment, Dr Ko attributed 2/3 to the accident.

56.Dr Chan opined that the Plaintiff could not return to his pre-injury job, in view of the limitation caused by the residual low back pain, which would be aggravated with prolonged sitting, standing and walking. The expert recommended change to lighter job such as cashier which would not require prolonged standing or walking. Dr Ko opined that Raut should be able to resume to his pre-accident job as a construction site general labour subject minimal to mild impairment to his work efficiency and effectiveness. Assistance at work and short interval break of about 15-20 minutes after continuous heavy labour for 1-2 hours were recommended.

57.As to the necessary sick leave period, Dr Chan endorsed that granted by the treating doctors whereas Dr Ko opined that sick leave up to December 2017 to January 2018 should have been adequate and appropriate.

58.The experts produced their first supplemental expert report dated 12 November 2021.

59.In this report, Dr Ko explained his own observation from the MRI images that multiple level disc desiccation, disc space decrease and facet joint hypertrophy existed in Raut, notwithstanding the lack of specific record of similar findings in the MRI report. These features found to exist from the MRI images merely 3 days after the accident must be pre-existing, he added. Of them, the disc protrusion and desiccation at L5/S1 might have been exacerbated by the accident, resulting in the mild stenosis at the left lateral canal recess and touching or abutting of the left S1 nerve root.

60.Dr Chan disagreed that the MRI features evidenced obvious pre-existing significant lumbar spine degenerative changes. He reiterated that Raut was 29 years old at the time, which made it unlikely that he would have suffered from significant degenerative changes in his spine in the absence of any prior significant low back injury before the accident. The disc prolapse at L3/4, L4/5 and L5/S1 shown in the MRI also did not show significant osteophyte formation, he observed.

61.The experts produced their second supplemental joint expert report dated 19 May 2022.

62.In this further report, Dr Ko added that the decrease in the disc height was obvious, especially at L3/4 and L4/5, and not just from the MRI images but also the X-rays taken in February 2020. This, he observed, was corroborated by the sign of desiccation at L3/4 and L4/5 when comparing with the bright signal over the normal disc at other levels.

63.On the other hand, Dr Chan borrowed support from the lack of mention of pre-existing degenerative changes by the treating physicians in their records and reports. Further, his reading of the MRI in August 2016 was that there was no obvious marginal osteophyte formation in the lumbar spine. He did not see significant decrease in disc height as Dr Ko observed. There was no obvious vacuum phenomenon of the discs. Nor was there end plate irregularity or bone marrow edema or obvious thickening of ligamentum flavum of the lumbar spines. He observed no obvious facet hypertrophy of the lumbar spine. There was, he viewed, only minimal decease in T2 signal intensity over L3/4, L4/5 and L5/S1 indicating minimal desiccation of disc at these levels.

Psychiatric expert evidence

64.Raut was jointly examined by Dr Benjamin Lai (“Dr Lai”), instructed on his behalf, and Dr Hung Bing Kei Gabriel (“Dr Hung”), instructed on behalf of the defendants, in September 2020. They produced their joint expert report dated 30 November 2020.

65.The experts agreed that Raut suffered from major depressive disorder with psychotic features. However, by the time of the joint examination, there was absence of objective signs supporting a severe degree of depression. Raut was mentally capable of resuming his pre-accident job as construction site general labourer, and his choice of work should not be affected by his mental condition. Further treatment was recommended once every quarter. Dr Lai recommended another 1-1.5 years of treatment whereas Dr Hung recommended a duration of 1 year. As to sick leave necessitated by the mental condition, Dr Hung opined that 9 months from January 2018 should be appropriate whereas Dr Lai opined that 1 year from the time when Raut was worse in his psychiatric condition would be reasonable. Dr Lai assessed the psychiatric condition accounts for 6-9% whole person impairment of Raut whereas Dr Hung assessed such impairment to be nil.

Discussion and findings

66.The joint psychiatric expert report was adduced without oral evidence, and the disagreement between the experts was not the parties’ focus at the trial. Importantly, both Raut himself and the experts did not suggest that the former is seriously disturbed by psychiatric symptoms as of today, and the experts also opined that Raut should not be prevented from resuming his pre-accident job from the psychiatric perspective.

67.The major differences between the orthopaedic experts of the two sides lie in their observations about the pre-existing degeneration of the lumbar spine of Raut, the genuine symptoms and their impact on his work capacity. The orthopaedic experts testified at the trial.

68.Dr Chan emphasized the relevance of the circumstantial evidence, such as the age and past physical health history of Raut before the accident. In court, Raut also led evidence in this respect with a view to showing that his life pattern and work experience back in Nepal before coming to Hong Kong involved no regular or tedious manual labour, let alone past physical injury to the relevant site of his body.

69.Dr Ko did not disagree in that people at more advanced age than Raut are generally more expected to demonstrate degeneration. However, possibility of hereditary origin of what could be premature degeneration was raised. This court would act cautiously upon such evidence when the probability, instead of mere possibility, of such origin being the reason must be substantiated by actual clinical tracing evidence concerning Raut.

70.That said, I am not impressed that the experts’ difference lies in the existence or not of pre-existing degenerative changes to Raut’s lumbar spine prior to the accident but the degree. Even what Dr Chan suggested was that there was no evidence of significant pre-existing degeneration in the case of Raut prior to the accident. Dr Ko differed in that he observed obvious evidence of pre-existing degeneration, which he nevertheless opined should give rise to mild resultant symptoms. When it came to the X-ray in February 2020, the finding was only minimal degenerative changes over the lower lumbar spine. Dr Ko in his evidence also accepted that there was no obvious sign of spondylolisthesis, marginal osteophyte formation, vacuum phenomenon of the discs, end plate irregularity or bone marrow edema or obvious thickening of ligamentum flavum of lumbar spines. Counsel for the defendants accept that the pre-existing degeneration in Raut as found by Dr Ko could be at its early stage.

71.Dr Chan accepted that there was some disc desiccation, though not of the most serious type. Dr Ko in his evidence did not suggest serious disc desiccation either. Dr Chan accepted that there was some decrease in lumbar disc space, but not of a serious degree. He borrowed support from the X-ray report in August 2016 and October 2017 mentioned above, which recorded that vertebral heights and disc spaces were preserved. Dr Ko differed in terms of the degree on the basis of what he described as subtle differences.

72.In my view, with all the objective medical evidence, both agreed and disagreed, taken into consideration, the overall impression is that degenerative changes to the lower lumbar spine of Raut before the accident, albeit early in terms of stage or mild in terms of severity, were clinically proved to exist as a matter of fact. A major cause of Raut’s symptoms was the touching or compression of S1 nerve root affecting his posterior left leg. Dr Chan opined that the present symptoms of Raut was solely the result of the accident, whereas Dr Ko opined that the accident exacerbated the originally asymptomatic pre-existing degenerative condition and accelerated the arrival of his symptoms by 7-8 years.

73.All the circumstances considered, including what the continuation of the type and burden of his working life, but for the accident, is expected to entail, I have reservation about categorising Raut’s case strictly into the first scenario of the Chan Kam Hoi classification as Dr Chan suggested. I find myself more convinced by the probability that Raut’s case straddles over to the second scenario, namely the natural progression or some other development or event in his life would have given rise to similar cause entailing his current symptoms.

74.Next, the experts’ disagreement in respect of the genuine degree of symptoms and disabilities of Raut caused by the accident. As mentioned, Dr Ko suggested the existence of exaggeration on the part of Raut in respect of his complaint, particularly that about lower limb weakness and especially the right side. Dr Chan did not share such scepticism.

75.This court notes that to address Raut’s complaint about persistent pain, the treating doctors recorded the repeated prescription of analgesics. The dosage was subsequently increased, which Raut did take despite the doctors’ advice against long term dosage in view of the potential side effects such as gastric and renal risk. There is no suggestion of his collecting medication without genuine need, even subjectively, or actual consumption. As mentioned, even surgical operation was at one stage recommended, but ruled out for the incidental risk. I do not find that to be implausible.

76.According to Raut, he managed to climb stairs, and where he lived was actually 7-storey above ground. He explained that he had to rely on his elbow crutches and sometimes with assistance of his wife or relative in doing so. He managed that slowly. Likewise, he managed to do so when he had to leave home for attending medical treatment. His wife largely corroborated his such evidence. During the joint examination, he also told the experts that he managed to climb stairs, though slowly and not without pain.

77.The issue of muscle wasting is raised, which is generally expected in case of long term uneven exertion of the limbs. The medical evidence tends to suggest the absence of that, for instance with reference to calf girth comparison. Counsel for Raut apparently noticed that, and proposed explanation with reference to the repeated rounds of physiotherapy between September 2016 and May 2018. The evidence also suggested that Raut in reality did not abandon the use of his left leg. As mentioned, he has been using it, though with stick (at the beginning), elbow crutches (since their prescription) and third party assistance, and reported such use during the joint examination. As such, lack of evidence of obvious muscle wasting is but one of the circumstances to be taken into account, which is not determinative, in the assessment.

78.As mentioned, physical examination soon after the accident revealed that Raut experienced muscle spasm and lordosis loss. Dr Ko agreed these could not be faked by Raut. As to the symptoms recorded by the treating doctors between 2016 and 2019 including pain and numbness of his posterior left leg as well as limitation in movement, Dr Ko agreed that they were consistent with radiculopathy of S1 nerve root, and the accident was material in triggering those symptoms. No positive Waddell’s sign was found by the experts during the joint examination in February 2020. Dr Ko also agreed that Raut’s complaint of burning sensation and the left positive straight leg raising test results could not be faked, and one possible explanation was that the S1 nerve radiculopathy was yet to be resolved.

79.Indeed Raut complained about persistent pain to his posterior, and not anterior, left leg. At one point, he did complain about bilateral weakness which Dr Ko, as mentioned, considered was inexplicable by reference to the clinical findings. As mentioned, the MRI report recorded nerve root compression at left L5/S1 but not right L5/S1, L3/4 and L4/5. However, in court, Dr Chan explained his proposition that such MRI result did not necessarily rule out the existence of the right side symptoms. The major reason was that the MRI scan was carried out when the patient was in a static supine position while the impact of his upright position in real life could involve a dynamic compression element accounting for occasional right side symptoms. This dynamic compression theory was not referred to in the joint expert reports, including the 2 supplemental ones.

80.To remove any understanding that the theory was but a recent invention, counsel for Raut cited the actual consideration and acceptance by the court of such a theory explained by another medical expert in Tamang Shushma v Pizzaexpress (Hong Kong) Ltd [2023] HKDC 1328. In my judgment, consideration and acceptance of the dynamic compression theory in Tamang Sushma was very much a matter of fact and circumstances of that case, which per se does not stand as authority for a similar finding to be made in the present case.

81.When asked, Dr Chan explained he did not refer to the dynamic compression theory before the trial as he had no intention of becoming argumentative in the joint reports. That probably did not sound helpful when the experts were specifically instructed to follow up in the relevant respects by way of the supplementary joint reports pursuant to leave of the court. Addressing the proposed theory in court, Dr Ko did not rule out that S1 nerve root compression could possibly cause extensive irritation, but he refrained from speculating if that extended to Raut’s right side but was undetected due to the operation of the theory. Whilst criticized, Dr Ko should be understood as he was required to consider the proposition for the first time in court.

82.As the matter now stands, what is before the court are medical evidence relating to Raut’s complaint which was mainly about his left lower limb, and at least some of those (such as muscle spasm and ankle reflex) probably could not be faked, and could be consistent with radiculopathy of S1 nerve root. Exaggeration aside, the right side symptoms, if any, must in no way compare to Raut’s major complaint about his left side disabilities in any event. The marker placed by counsel for Raut on this issue goes no further than that.

Pain suffering and loss of amenities (“PSLA”)

83.Raut claims damages for PSLA in the sum of HK$450,000. These are cited as comparables: Razaq-Akhtar v Wang Hoi Transportation Ltd [2008] HKCU 1648, HCPI 303/2007 (24 October 2008); Singh Inderjeet v Ho Chun Bong [2009] HKCU 671, HCPI 874/2007 (11 May 2009); Liu Shui Bik v Countfortune Ltd [2010] HKCU 617, HCPI 60/2008 (17 March 2010); David John Slater v Commissioner of Police [2018] 4 HKC 1.

84.The defendants disagree, and counter-suggest a sum of HK$200,000, which is after discount for Raut’s pre-existing condition. They refer to: Tamang Udas v Global Sunny Engineering Ltd HCPI 732/2011 (7 January 2013); Ansar Mohammad v Global Legend Transportation Ltd HCPI 1057/2007 (9 July 2010); Chan Chung Keung v Greenroll Ltd HCPI 275/2005 (20 December 2005); Ying Ka Chun v JV Fitness Ltd & Anor. [2021] HKCFI 3349 (23 November 2021); Chan Lok Hang v Swire Resources Ltd [2018] HKCFI 1463 (28 June 2018); Tam Wai Tuen v Seiko Screw Manufactory Ltd HCPI 383/2008 (18 December 2009); Thapa Goma v Tina Global (HK) Ltd [2019] HKCFI 471 (21 February 2019).

85.Considering the circumstances of the accident, the physical and psychiatric sufferings as well as their seriousness in the above cases relative to those in the present case, I find that a sum in the region of HK$240,000 after taking into account of Raut’s pre-existing physical degeneration should be fair.

Pre-trial loss of earnings

86.Raut started his employment with SPE in late April 2016 as a general labourer at a daily wage of HK$700. There is no dispute that his average monthly income up to the date of the accident was HK$24,940. The parties also agree to assume that Raut should have been able to resume working 3 months after the expiry of the reasonable sick leave in October 2018, ie January 2019. They differ on whether Raut should be able to resume his pre-accident job and what his income from his pre-accident job would have been.

87.Raut claims inability to resume his pre-accident job. He has not done so as a matter of fact. Instead, he has sought various other jobs such as restaurant receptionist and salesperson, earning hourly wages. From the former, he according to the documents has earned a total income of HK$5,334 (from September to October 2019). From the latter, he has earned a total income of HK$17,265 (from May 2022 to July 2023). He has looked for other jobs, though counsel for the defendants criticised them to be unrealistic attempts in view of the job requirements regardless of his physical capacity.

88.In terms of medical expert assessment, the psychiatric episode as mentioned should not disable Raut from resuming his pre-accident job. The difference between the parties lies in the orthopaedic aspect. Dr Chan considered that Raut would suffer from limitation caused by the residual low back pain, which would be aggravated with prolonged sitting, standing and walking. The expert recommended change to alternative job which would not require prolonged standing or walking. In expressing his contrary opinion, Dr Ko qualified by reference to the probability of minimal to mild impairment to the work efficiency and effectiveness of Raut. He suggested interval break of 15-20 minutes each after 1-2 hours of heavy labour during work to address the concern.

89.Capacity to resume the pre-accident job is a matter of assessment of the realistic likelihood in the circumstances surrounding the injured person. Medical expert opinion is but one aspect of the relevant evidence in the assessment. Raut’s evidence is that he started working at construction site soon after his arrival at Hong Kong mainly because of the relatively higher income from such kind of job. In view of his background and language barrier, his employment options would probably be limited in any event. By the time of the accident, he had passed the intermediate test for concrete worker, and had signed up for tests for other work types in the trade. He has a very young family to support. He did not endure in seeking sick leave, but tried to work after the expiry of sick leave. On balance, I am not convinced that he chose not to resume working in construction site but resorting to those sporadic and insecure alternative job opportunities entirely willingly or motivated by compensation.

90.Dr Ko’s opinion in respect of Raut’s capacity to resume working as a general labourer in construction site was not unqualified. A realistic view is called for in assessing such qualification. The kind of labour reasonably expected of Raut in his job and the reasonable likelihood of the recommended adjustment to address such qualification are relevant. According to Raut, which I accept, his work as a general labourer in a construction site would involve handling weight such as building scaffolds and tools as well as climbing up and down vehicles. There was no evidence, and I am sceptical, about how realistic Raut would be so accommodated in his position and daily work in construction sites as Dr Ko recommended.

91.In my judgment, the realistic view should be such that Raut could not reasonably be expected to be able to resume working effectively as a general labourer in construction sites as before after the expiry of his sick leave.

92.Raut claims that he could have earned up to the date hereof an average monthly income of HK$32,000 but for the accident. He referred to Pun who earned about such monthly average sum by mid-2021. He also cited as example his another friend who earned similar monthly sum by the same time. The defendants disclosed the earnings of 3 comparable workers up to late 2020 and early 2021, but there was no record prior to mid-2018 and subsequent to mid-2021. From the available records, those workers had increase in their daily wage rate to HK$750 by October 2018 and further to HK$800 or HK$850 sometime in 2020. Further increase, Raut argues, would be expected by the time of this trial. This gives rise to the calculation of the median of HK$28,470 (ie (HK$24,940 + 32,000)/2) per month.

93.On the basis of the development in the daily wage rate of the comparable workers disclosed by them, the defendants accept that Raut’s daily wage would have been increased to HK$750 by October 2018, hence an increased average monthly income of HK$26,720.72. This gives the median monthly income between the date of the accident and late October 2018 in the sum of HK$25,830.36 (ie (HK$24,940 + 26,720.72)/2). Not accepting that Raut would suffer any further loss of earnings since the end of sick leave (plus another 3 months), the defendants do not propose calculation of further development of Raut’s monthly earnings since then.

94.The defendants argue that the average monthly income projected by Raut by 2021 lacks evidential support. Whether Pun is a good comparable is questioned on the basis that he possessed many more years of experience than Raut, and was already a scaffolder supervisor in 2021. Hence his explicable position to earn more than Raut. Raut’s another friend managed to earn similar income as Pun but, according to the documents, as a driller instead of a general labourer like Raut. It may be said that whether Raut would have managed to likewise increase his income by acquiring qualification for more specialised position(s) is speculation, though his intention to do so, I find, is not incredible.

95.Referring to the records of the comparable general labourers disclosed by the defendants, one should note that whilst their daily wage rates were further increased (to HK$800 or HK$850) sometime in 2020 as mentioned, their monthly income, which varied with factors such as the number of working days and overtime, since the increase did not actually exceed the average median monthly amount calculated by the defendants (up to October 2018) in nearly all of the subsequent months. There is no evidence in respect of the circumstances of the comparable workers or the circumstances of the industry during the period. That said, it was amidst the coronavirus pandemic that the daily wage rate was so increased to HK$800 or even HK$850. It is not unreasonable to expect the gradual resumption of social and economic activities to have had some positive impact on the demand and job opportunities for construction site workers. Referring to the average daily wages of general workers and labourers engaged in public sector construction project as reported by main contractors published by the Census and Statistics Department for 2016-2021, one finds that the average daily rates were also invariably higher than HK$850.

96.All circumstances considered, it appears to me that the increase in monthly earnings of Raut by now, but for the accident, projected on his behalf is not without reasonable basis. On balance, I am satisfied that adopting the suggested median of HK$28,470 for the calculation of the loss of earnings up to the present is not unreasonable.

97.Raut suffered total loss of income during the sick leave period plus 3 months up to late January 2019. His loss, inclusive of MPF entitlements, was therefore HK$28,470 x 1.05 x 29 months = say HK$866,912.

98.Since resumption of work, his partial loss of monthly earnings arose out of the difference between the income from the pre-accident job and that the notional alternative job, say HK$12,000. His loss, inclusive of MPF entitlements, until now would be HK$(28,470 – 12,000) x 1.05 x 66 months = HK$1,141,371. Credit will have to be given to the income obtained from his post-accident alternative jobs mentioned above, hence the sum of HK$(1,141,371 – 5,334 – 17,265) = HK$1,118,772.

99.The total pre-trial loss of earnings was HK$(866,912 + 1,118,772) = HK$1,985,684.

Future loss of earnings

100.Raut is 37 years old. I accept the projected retirement age of 65, which has previously been accepted by the court: see for instance Sin Kin v Dragages et Travaux Publics and Penta-Ocean Construction Co. Ltd HCPI 599/1999 (20 September 2000) at p 24; Liu Weiguang v Li Keng Ko & Another [2019] HKDC 1745 at §74. I also accept that the appropriate multiplier in the present case should be 19.81: see Personal Injury Tables of Hong Kong 2019 Table 9. Account for pre-existing degeneration should be taken by way of a discounted multiplier. However, in view of the respective stances of the parties mentioned above, counsel provided no assistance in this respect. The court in Chan Kam Hoi did not rule against the application of a percentage discount in the assessment. Doing the best I can in the circumstances, I would resort to such approach.

101.The projected present monthly income but for the accident, as mentioned above, would have been HK$32,000 together with Raut’s statutory maximum MPF entitlement of HK$1,500 per month. The future loss of earnings will be HK$(32,000 + 1,500 – 12,000 x 1.05) x 12 x 19.81 = HK$4,968,348. Discounted by say 30% for the pre-existing condition, the amount will be say HK$3,477,844.

Loss of earning capacity

102.Both sides submit that there should be an award for loss of earning capacity but their reasons are different. Raut seeks such an award on top of loss of earnings whereas the defendants argue that this is the alternative to award for future loss of earnings. Following the above finding, the defendants’ contention lacks basis. That said, any alleged risk of unemployment or underemployment as a result of the disabilities of Raut would have to be considered on the basis of his notional alternative job. Where future loss of earnings is awarded on the basis that he should have been able to secure such alternative lower income job, it requires actual evidence in support of any alleged risk that he may not be able to secure or retain such job, and hence an additional award to compensate such risk. I am not satisfied that there is sufficient evidence in support of that in the present case. Hence no award under this head.

Miscellaneous special damages

103.Medical expenses claimed are agreed at HK$15,000. The defendants concedes on the claim for travelling expenses but only up to January 2019. I would assess this item up to late January 2019. As for tonic food, the amount of HK$10,000 claimed is not evidenced by documents. Nor is that supported by evidence of medical recommendation. In line with normal practice, the defendants are prepared to concede half of the amount claimed. I find that to be reasonable. The total amount of special damages would be HK$(15,000 + say 14,700 + 5,000) = HK$34,700.

Future expenses

104.Future medical expenses claimed are agreed at HK$3,320. So are future travelling expenses at HK$1,500.

Summary

105.In summary, the quantum is:

PSLA	HK$240,000
Pre-trial loss of earnings	HK$1,985,684
Future loss of earnings	HK$3,477,844
Miscellaneous special damages	HK$34,700
Future expenses	HK$4,820
Total:	HK$5,743,048

106.Less 10% to account for contributory negligence, the quantum becomes say HK$5,168,743.

107.Giving credit to the employees’ compensation in the sum of HK$800,000, the quantum becomes HK$4,368,743.

108.There is no dispute that the general damages carry interest at 2% per annum from the date of writ to today, and the pre-trial loss of earnings and special damages carry interest at half judgment rate from the date of accident until today. Interest on the judgment sum thereafter shall run at the judgment rate.

ORDER

109.Judgment is entered in favour of Raut against the defendants, jointly and severally, in the sum of HK$4,368,743 with interest as aforesaid.

110.There be a nisi order whereby the defendants, jointly or severally, shall pay the costs of the action, including any costs reserved, to Raut to be taxed, if not agreed. His own costs shall be taxed in accordance with legal aid regulations. In the absence of application in 14 days to vary, this costs order shall become absolute without further order.

Mr Leon Ho, instructed by LWC & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Alfred C P Cheng, instructed by Deacons, for the 1^st and 2^nd defendants