Ansar Mohammad v. Global Legend Transportation Ltd
Read the full judgment text of CACV 162/2010 on BabelCite. This Court of Appeal judgment was delivered on 24 March 2011 before Tang Ag. CJHC, Le Pichon JA, Cheung JA.
Civil appeal – assessment of damages – personal injury – back injury – slip and fall at work – L5/S1 disc prolapse – pre-existing spondylolysis and spondylolisthesis – pre-existing asymptomatic degeneration – apportionment of damages between accident and pre-existing condition – whether prolapse caused by accident or by pre-existing degeneration – whether Master erred in partly accepting and partly rejecting expert evidence – whether plaintiff likely to become symptomatic in any event after fourth decade – Ting Kwok Keung v Tam Dick Yuen high threshold for upsetting findings of fact – challenges to expert evidence treated as findings of fact – Au Yeung Miu Sim v Tsang Kwong Wai – balance of probability test for causation in ascertaining cause of injury – Lee Kin Kai v Ocean Tramping – Li Sau Keung v Maxcredit Engineering – loss of future earnings – notional post-trial earnings – uncontradicted evidence of post-accident salary increase – defendant in best position to provide evidence but failed to do so – defence struck out for non-compliance with unless order on discovery – loss of earning capacity – real and substantial handicap on the open labour market – vulnerability of back limiting choice of employment – lump sum approach versus annual earnings multiplier – costs of appeal – Legal Aid Regulations – appeal allowed in part – loss of future earnings increased to $756,000 – $30,000 awarded for loss of earning capacity.
Legal issues: Master's finding on cause of injury at L5/S1 · Master's finding on future manifestation of symptoms absent the accident · Notional post-trial earnings for loss of future earnings · Award for loss of earning capacity
Outcome: Appeal allowed in part. The loss of future earnings award was increased to $756,000 and an additional $30,000 was awarded for loss of earning capacity.
Cited by 16 cases · Cites 3 cases
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CACV 162/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 162 OF 2010 (ON APPEAL FROM HCPI 1057 OF 2007) ________________________ BETWEEN
________________________ Before : Hon Tang Ag. CJHC, Le Pichon and Cheung JJA in Court Date of Hearing : 11 March 2011 Date of Judgment : 24 March 2011 ________________________
________________________ Hon Tang Ag. CJHC : 1.I agree with the judgment of Cheung JA and the order he proposes. Hon Le Pichon JA : 2.I agree with the judgment of Cheung JA and the order he proposes. Hon Cheung JA : Appeal against assessment of damage 3.The plaintiff was a general worker employed by the defendant. On 2 June 2005 while the plaintiff was engaged in his work, he slipped and fell on his upper buttock and lower back. He claimed damages against the defendant for injuries arising from the accident. Judgment on liability was entered against the defendant when it failed to comply with an unless order on discovery resulting in its defence being struck out. Master Levy after a nine day hearing, assessed the amount of damages to be awarded to the plaintiff as follows :
4.$223,890.95 by way of employees’ compensation is to be deducted from the award because the plaintiff had already received this amount from the defendant. 5.The plaintiff now appeals against the award. The plaintiff 6.The plaintiff was 29 years of age at the time of accident and 34 at the time of the hearing before the Master. He was a Pakistani born in his home country but came to Hong Kong at about the age of 17 or 18. He was employed as a general worker in construction sites for about 10 years before the accident. 7.After the injury the plaintiff was sent to the emergency ward of the hospital but was discharged on the same day. Examination showed that there was tenderness over his lower back. X-ray to the pelvis and lumbro-sacral region did not show any fracture. After the accident he complained of back pain. He claimed that he suffered pain when walking, sitting, unable to lift heavy objects and pain in both knees radiating down to his ankles when he walked. He woke up from his sleep with pain in his back and he had difficulties in climbing stairs and lying on his back when sleeping. He was unable to squat. He could not return to work as a labourer. He only worked as a security guard after the accident. He was unemployed at the time of the hearing. 8.The Master found that the plaintiff’s evidence of his residual symptoms had been grossly exaggerated and his complaint about his symptoms was not genuine. The issue 9.The issue before the Master was whether the plaintiff’s fall caused injuries to his back in the form of a prolapsed disc or whether because of his pre-existing conditions at his back, specifically at the L5/S1 area, the fall caused the pre-existing conditions at L5/S1 to manifest themselves into symptoms. The experts 10.Dr. Wong See Hoi, an expert for the defendant found that there were spondylolysis (i.e. a term which covers disc degeneration) and spondylolisthesis (i.e. the spine is shifted forward) at the L5/S1 area. Dr. Wong was of the view that the accident may ‘trigger out’ the plaintiff’s back symptoms. 11.Professor S M Kumta, expert for the plaintiff, initially agreed with Dr. Wong that there was pre-existing spondylolisthesis but later retracted this and said the plaintiff only had spondylolysis. Professor Kumta was of the view that the plaintiff injured his back by the accident. Lumbar spine 12.Without going into details, I will describe briefly the structure and injuries of the lumbar disc. This description is mainly based, with modification on the material contained in the written submission of Mr. Hingorani’s, counsel for the plaintiff :
X-ray examination 13.The Master summarised the result of the X-ray examination of the plaintiff as follows :
MRI examination L5/S1 14.Two MRI scans were conducted on the plaintiff’s lumbar spine. The Master summarised the positive finding of each examination as follows :
Other areas 15.The MRI films also revealed problems in other parts of the plaintiff’s spine and back. However, they were relatively minor problems. The finding by the Master
16.Because of the finding that the plaintiff’s problems were partly caused by the accident of which the defendant was responsible and partly caused by the plaintiff’s pre-existing conditions of which the plaintiff himself was responsible, the Master did not give the plaintiff the full award when she assessed the damages. The focus of the appeal 17.The appeal is focused on three matters. The first is in respect of the Master’s finding on the cause of the injury. The second is in respect of the finding on the time the symptoms will manifest themselves even without the injury. The third is in respect of damages. Finding of fact 18.I will consider the first two challenges together. 19.In respect of the first, the plaintiff’s case is that the Master ought to have held that the plaintiff had not suffered from any significant degeneration or prolapse before the accident, but that the fall resulted in the prolapse at L5/S1 which subsequently underwent degeneration. 20.The plaintiff challenged the Master’s acceptance of Dr. Wong’s evidence and rejection of Professor Kumta’s evidence. It was said that the Master had wrongly considered that Dr. Wong’s opinion was consistent and firm. Dr. Wong’s view in his report that the mode of injury was only compatible with a simple back contusion was contradicted when he admitted in evidence that the plaintiff might have suffered from more than a simple contusion. Dr. Wong’s view on the desiccation on L5/S1 and other parts was contradictory. His opinion that the accident may at most have triggered out his back complaints was unsupportable. Dr. Wong’s contribution of the plaintiff’s complaints to multi-level degeneration was unsupportable and Dr. Wong was wholly inconsistent with his reported findings as to protrusion. Mr. Hingorani set out details of the inconsistency of Dr. Wong’s evidence in his written submission. 21.It was further submitted that the Master had misunderstood the evidence of Professor Kumta. The Master erred in holding that Professor Kumta had confirmed that the plaintiff had disc degeneration at various levels of the spine. The professor in fact stated that there was no degeneration at any level other than L5/S1 but did not opine that the degeneration at L5/S1 existed before the accident. Further Professor Kumta was of the opinion that given that the plaintiff had an injury and that he had no prior history and no prior symptoms, it was likely that the protrusion was the result of the accident. Again Mr. Hingorani set out the details of his case in his written submission. 22.In respect of the second challenge i.e. the symptoms manifesting themselves, Mr. Hingorani submitted that since it was the evidence of both experts that structural changes are at work to stabilize a spondylolistheis, which was only mild at 10%, such that its progression slows down or ceases after the 3rd decade, and structural changes also occur to stabilize the spine where there is degeneration, which, according to Professor Kumta, the Plaintiff did not have, and which, according to Dr. Wong was essentially so insignificant as not to bother to mention, the Master ought to have found on the evidence that, but for the accident, the plaintiff was unlikely to have become symptomatic and thereby awarded damages in full. My view
Loss of future earnings 23.The issue is on the amount of the multiplicand. The Master used $13,000 as the plaintiff’s notional post-trial earnings less the figure accepted by the plaintiff of $8,000 and arrived at $5,000. The $13,000 was the plaintiff’s monthly salary at the three months period before the accident. This was made up of the basic salary of $10,000 and overtime of $3,000. The plaintiff’s evidence was that subsequent to the accident he was informed by a colleague working for the defendant that the basic salary had been increased to $12,000 plus overtime. The Master disagreed with Mr. Hingorani’s adoption of 10% increase of pre-accident earnings for the purpose of calculating the future loss. She held that there was no evidence to support the increase. 24.The fact is that the defendant was clearly in the best position to know whether there had been an increase in the salary of its employees and by how much. Yet it had chosen not to produce any evidence on that. Its defence was struck out and judgment on liability was entered against it because it had failed to comply with an unless order which was based on a consent order to give discovery on earnings. In the circumstances the plaintiff’s evidence on the increase of salary ought to have been accepted by the Master as the best evidence on the increase. Accordingly the notional post-trial monthly earnings should be in the figure of $13,000 X 10% or $14,300. The monthly loss should be $6,300 ($14,300 - $8,000). The total loss is $756,000 ($6,300 X 12 X 10). Damages Loss of earning capacity 25.The Master disallowed the claim for loss of earning capacity. She stated that the plaintiff was already compensated for his reduced earnings as a result of the need to change to a more sedentary nature of work. As to his change of employment after the accident, the Master said that the evidence seemed to suggest that the change of employers was more due to his personal commitments that required him to go back to his home country rather than the need to take sick leave or time off. 26.I take a different view of the matter. Looking at the matter objectively, the vulnerability of the plaintiff’s back by reason of the disc prolapse is likely to cause him to suffer a handicap in the labour market. His choice of employment will be limited. The risk is a substantial and real one as distinct from a fanciful and speculative one. 27.An award should be given under this head. As to the amount of the award, the cases show that there are two approaches. The first is a lump sum approach with awards ranging from $5,000 to $250,000. The second is based in terms of the plaintiff’s monthly or annual earnings : usually up to a year’s salary. In this case an award of $30,000 is appropriate bearing in mind the presence of the pre-existing conditions at the time of the accident. Conclusion 28.The appeal is accordingly allowed to the extent that the loss of future earnings is increased to $756,000 and $30,000 is awarded for loss of earning capacity. Costs 29.As the plaintiff succeeds in his appeal, I will make a provisional order that he is to have the costs of appeal. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.
Mr. Jeevan Hingorani, instructed by Messrs Burke & Company, assigned by Director of Legal Aid, for the Plaintiff Mr. Ashok K. Sakhrani, instructed by Messrs Winnie Leung & Co., for the Defendant |
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