Gurung Bhim Bahadur v. Cheung Ying Construction Engineering Ltd and Another

HCPI 746/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 746 OF 2005

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BETWEEN

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Coram : Master de Souza in Court

Dates of Hearing : 12 and 13 January 2010

Date of Handing Down Judgment : 18 January 2010

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JUDGMENT

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I.  INTRODUCTION

1.This is an assessment of damages, interlocutory judgment having been entered by consent on 19 August 2009 with damages to be assessed.

2.The Plaintiff, an experienced formwork installer, was injured when he slipped and fell as he went about his work shortly before noon on 16 August 2002.  He was at the time employed by the 1^st Defendant and had been working on the same construction site at Sham Mong Road, Kowloon since about May 2002.

3.On the day in question, formwork on the 19^th floor having been completed, the aluminium panels used in its construction had to be disassembled and moved up one floor for the process to be repeated.  The Plaintiff was on the 20^th floor receiving and lifting up the formwork panels that were then manually passed up to him from the floor below when he suddenly experienced severe back pain.  He then fell backwards onto the ground injuring himself.

4.The Plaintiff has since received Employees Compensation in the sum of $258,285 for which credit will be given in this exercise.

II. Agreed Matters

5.At the commencement of the hearing, counsel for the parties indicated that a number of matters were agreed.  These were:

(i) $300,000 for Pain, Suffering and Loss of Amenities;

(ii) Special Damages agreed at $16,918;

(iii) $100,000 for Loss of Earning Capacity;

(iv) A multiplier of 8 post-trial for Loss of Future Earnings, if established; and

(v) Full loss of earnings for 12 months from date of accident, the claim in respect of the shoulder injury having been abandoned.

6.The sole issue remaining to be determined was therefore whether the Plaintiff was fit to return to construction work after the expiry of sick leave, and if not, whether he was able to undertake some other paid work.

7.Two other matters also need to be stated at the outset.  Mr. Wright, counsel for the Plaintiff indicated that no reliance would be placed on the witness statement of Gurung Bhim Bahadur.  It dealt principally with liability and thus deemed irrelevant for present purpose.  As the medical evidence did not provide any causal link between the Plaintiff’s shoulder injury and the accident, the Plaintiff was content to abandon as much of the claim.

III. The Medical Evidence

8.Following his fall, the Plaintiff was sent to the Accident and Emergency Department of Tuen Mun Hospital (“TMH”) by taxi accompanied by a colleague.  On admission, his principal complaint was of low back pain.  Tenderness over the back was observed but there was no radiation of pain down the legs, no leg numbness, weakness or urinary incontinence.  Paraspinal muscle spasms over the lumbar region with tenderness over the lumbar spine were noted.  Straight leg raising test of both legs showed limitation.  X-rays of the lumbar spine revealed no abnormality.  The clinical diagnosis was work-related sprained back injury.

9.He was conservatively treated with medication and physiotherapy in the orthopaedic ward where he remained for 9 days until discharged on 24 August 2002.  He was followed up at the outpatient orthopaedic clinic of the same hospital.  As at 6 September 2002, he still had severe low back pain and stiffness, gross muscle spasms and tenderness.  Despite continued physiotherapy, there was little improvement until the end of October 2002 when some improvement in tenderness and range of spinal motion was attained.

10.The Plaintiff underwent MRI examination on 6 January 2003.  It revealed, inter alia, decreased hydration at L4/L5 disc, disc height appeared preserved, posterior protrusion of L4/L5 lumbar disc with annular tear and mild thecal sac compression, narrowing of the foramina (opening) at L3/L4 and L4/L5 levels owing to mild bulging of intervertebral discs.

11.In February and March 2003, the Plaintiff continued with occupational therapy.  He was still complaining of increased back pain on 19 March 2003.  Conservative treatment continued.  On 30 April 2003 there remained persistent back pain.  The occupational therapist considered that maximal medical improvement had almost been reached.  The Plaintiff was then referred to the Medical Assessment Board as referred to below.

12.Sick leave was granted from the date of the accident for some 23 months until 9 July 2004.  However, as respects only the back injury, the period was to 16 July 2003.

13.In July 2003, the Plaintiff was assessed by the Employees Compensation (Ordinary Assessment) Board.  Following a review at his behest in September 2004, a Form 9 Certificate of Review of Assessment was issued.  His injuries were stated as “back and right shoulder injuries resulting in (i) pain and stiffness of back; (ii) right shoulder scarring, pain and stiffness”.

IV. Joint Orthopaedic Expert

14.Dr. Lam Kwong-Chin (“Dr. Lam”) jointly appointed to examine the Plaintiff produced 2 reports.  The 1^st is dated 21 December 2005 over 3 years after the accident.  The assessment had occurred earlier that month.  Significant abnormal findings on physical examination Dr. Lam helpfully marked up in bold.

15.He noted the following.  The Plaintiff, of muscular build, was alert and able to walk with a normal gait unaided and without any back support.  He was able to stand stably on either leg, to walk on tiptoes or on heels but complained of back pain.  Full squat was attainable but again with complaint of back pain.  Sitting was entirely uneventful.  There was local tenderness at midline and left side of lower lumbar region with back movement fair.  No neurological deficit was found at the lower limbs and the X-rays were unremarkable.

16.As for the lumbar spine, Dr. Lam remarked “there is early and minor osteophytic lipping of the vertebral margins without associated narrowing of disc spaces.  No infiltrating bone lesion is seen”.  There was no loss of lumbar lordosis and no paraspinal muscle spasm.

17.Dr. Lam agreed with the clinical diagnosis of work-related sprain back injury.  He found no evidence of bony damage or other indications of radiculopaty or irritation to the spinal nerve roosts by prolapsed intervertebral disc.  The standard treatment for such back pain without limb radiation (sciatica) would be conservative with medication, physiotherapy and rest, all of which the Plaintiff had received.  Most such patients would respond satisfactorily to treatment.

18.Dr. Lam added that the MRI results were rather non-specific.  He considered that the decreased dehydration at L4/L5 was degenerative and unrelated to the accident.  As regards the central protrusion and mild foraminal stenosis (narrowing of an opening), either trauma or degeneration could have been the cause.

19.The prognosis was good in that the back condition was considered stable with no further treatment indicated.  The shoulder complaint aptly conceded as not accident-related aside, Dr. Lam opined that the Plaintiff was able to return to work in construction sites with some diminishment in working efficiency and endurance owing to the residual pain.

20.Dr. Lam furnished an updated assessment dated 10 September 2008.  He observed “it is common to have ups and downs in the level of pain.  However, significant change in the overall back condition of Mr. Gurung is unlikely, in particular that he has not performed any heavy manual work”.  He further stated “the history, clinical findings and investigations in Mr. Gurung’s case showed that the only site of complaint was at the low back, with mechanical low back pain… There were no evidence of bony damage, or features suggestive of radiculopathy or irritation to the spinal nerve roots by prolapsed intervertebral disc (PID)”.

21.He added that the back condition should not affect the Plaintiff’s ability to climb or to perform trunk motion in a manner usually required from a general labourer although he might experience some backache after repeatedly doing so.  In his opinion, “the main caution is in weight lifting.  He should be able to have frequent lifting up to 50 lb, and occasionally up to 100 lb.  He is recommended to have a 10-minute break every hour.  If Mr. Gurung did return to have manual work in construction sites after the examination in 12/05, it is expected that he would have more frequent relapse of back pain due to the strain.  However, the intensity should be similar to that in 12/05, unless there is further structural damage”.

V. Dr. Clarence Leung and Senior Physiotherapist Gorman Ngai

22.In 2007, the Plaintiff turned to private treatment as his back pain persisted.

23.He was examined by Dr. Clarence Leung, a spine and neurosurgery specialist of “Sportsphysicians” (“Dr Leung”) on 17 April 2007.  His then complaints were persistent back pain, localized over the lower back on the left side radiating down to the left thigh with associated pins and needles sensation, standing tolerance of about 25 minutes and sitting tolerance of about 30 minutes and the pain being relieved by lying flat.

24.Dr. Leung diagnosed a very stiff lower back with limited movement especially on lumbar flexion, normal gait otherwise.  Lower limb neurology including tone, power, sensation, temperature and reflexes were normal.  Flexion and extension of the lumbar spine X-ray revealed no instability with slight narrowing of L5-S1 disc space.  The impression was of discogenic pain.  In referring the Plaintiff to the physiotherapist, Dr. Leung gave the diagnosis of L4/L5 annular tear.

25.On 14 April 2008, Dr. Leung opined that the Plaintiff was suffering from persistent lower back pain secondary to a L4/L5 annual tear and that his condition rendered him unsuitable to resume his job as form worker, the nature of the employment requiring heavy stress on his lumbar spine.

26.The Senior Physiotherapist, Mr. Gorman Ngai (“Mr. Ngai”) on referral assessed that the Plaintiff presented a sway back in standing and poor posture in sitting.  He noted there was moderate decrease in active range of motion over the lumbar spine in all directions owing to pain.  There was diffused tenderness over the lumbar erector spinae with the left side worse than the right.  Hypomobile and tenderness on palpation over L4/L5 and L5/S1 levels were noted.  He treated the Plaintiff with manual therapy, mobilization exercises, ultrasound therapy and thermotherapy.

VI. The Plaintiff’s evidence

27.The Plaintiff born in Hong Kong returned to live and work here in 1995 aged 33.  He is now 45 years old.  He has completed his education to intermediate level in Nepal and is able to speak and understand a little English and Cantonese, his native tongue being Nepalese.  He has worked as a driver on a Nepalese driving licence within the restricted area of the airport but was mainly employed on construction sites as a labourer and gaining experience along the way since his return.

28.In 2002, he was employed by the 1^st Defendant as foreman and was engaged upon formwork when the accident occurred.  His monthly remuneration as agreed was $14,300.

29.He has not been able to return to his former job or undertake construction work of any kind since his fall on account of his residual chronic back pain for which he still required medical attention several times a year.  Whenever his back acted up and the pain became unbearable, he said he would visit the A&E Department of the Pok Oi Hospital in the New Territories where he resides with his family.  These were not frequent occurrences he fairly admitted.  He said his back would “jam up” every few months or so in the last two years.  Heavy domestic work, lifting heavy objects or swift movements would trigger such episodes.  He regularly continues with back exercises recommended by the physiotherapists to improve his condition.

30.It is plain on the evidence that the Plaintiff was unable to return to his former employment, a job suitable only for able-bodied workers capable of lifting heavy aluminium panels.  Dr. Lam’s suggestion of a 10-minute break on the hour is plainly unrealistic even on the evidence of Mr Cheung Tai Fai, the sole defence witness.  The construction business is run on tight schedules and there is no room for engaging workers incapable of giving their physical best at all times.  Even general cleaners he employs are expected to undertake lifting and other heavy manual duties as the nature of the work demands.  As he pointedly stated, “in construction site there is no sitting work”.  I am satisfied to hold that the Plaintiff cannot realistically be expected to resume his former employment or to continue his working career in the construction field where heavy manual work is the order, given his residual difficulty and impairment.

31.Mr. Hemmings for the defence suggested that many other types of work such as tiler, driver were open to the Plaintiff.  As for driving for a living, the Plaintiff’s Nepalese licence avails him nought in Hong Kong.  He would have to pass the local driving tests, both practical and written.  With his limited grasp of English and Cantonese, the written test requirement would pose considerable difficulty for him.  Tiling would involve a fair degree of climbing and lifting which he said would also be problematic.  In any event, there was no evidence of the likely remuneration of such work.

32.The Plaintiff has since the mishap worked as a security guard for three different employers.  From 23 April 2005 to 12 June 2005, he worked for Kong Shum Union Property Management Co. Ltd at a salary of $5,800 per month.  He said he had to resign as the frequent patrolling up and down stairs of the building exacerbated the back pain.  For much of September 2005, he worked as a part-time security guard for Pacific Crown Security Services Co with a daily wage of $250.  The company did not offer him a full-time position.  He resigned as he was required to travel long distances to different work places such as Sheung Shui and Tuen Mun.  Between 27 April 2006 and 30 March 2008, he was employed in a similar capacity by Ubique Gurkha Security Guard Force Service in Ping Shan at a gross monthly wage of $7,000.  The job was terminated when the employer did not renew his contract.  He has remained unemployed since.  His continual effort to seek alternative employment through friends and on his own has not been fruitful to date.

33.About 7 ½ years have elapsed since the accident and the Plaintiff continues to suffer a chronic back condition that has severely impacted his ability to maximize on his ability to earn.  The residual back pain is genuine and entirely consistent with the medical evidence as is his own evidence.  I find the Plaintiff to have been a reliable and honest witness not given to exaggeration.

VII. Past and Future Loss of Earnings and associated MPF

34.Mr. Wright on his behalf has claimed loss of earnings to trial as also prospective loss of earnings to come.  I wholly support his submissions and calculations in this regard.  I am therefore prepared to and do make the following awards under this head of claim:

VIII. Summary of Awards

35.There shall be judgment in the sum of $1,664,858 with interest at 2% on the PSLA award from the service of the writ to the date of judgment and thereafter at judgment rate until full payment.  Special Damages shall carry interest at half judgment rate from the date of the accident to the date hereof and thereafter at judgment rate until payment.

36.There shall additionally be a costs order nisi including any costs that may have been reserved in respect of the Assessment to the Plaintiff on a party and party basis with legal aid taxation of his own costs.  Certified fit for counsel with liberty to apply within 14 days hereof.

Mr. John WRIGHT instructed by Messrs. Louis K.Y. Pau & Co. for Plaintiff.

Mr. John HEMMINGS instructed by Messrs. Hoosenally & Neo for 1^st and 2^nd Defendants.