Li Sau Keung v. Maxcredit Engineering Ltd & Another
Read the full judgment text of CACV 16/2003 on BabelCite. This Court of Appeal judgment was delivered on 25 November 2003 before Le Pichon JA, Cheung JA, Suffiad J.
Personal injuries – workplace accident – concrete worker dismantling blocked pipe – struck on back by falling pipe section – whether plaintiff fell 12-15 feet onto safety scaffolding – whether L4 condition caused by accident – causation – assessment of damages – pre-existing degenerative condition – multiplier and reductions – adverse inference for failure to call witness – Court of Appeal allowing appeal and increasing award – Concrete worker employed by 1st defendant worked 19 hours clearing blocked concrete pipes at construction site where 2nd defendant was main contractor – plaintiff climbed onto external wall from 7/F in darkness and rain to dismantle top section of pipe between 7/F and 8/F – pipe struck him unexpectedly in the back – plaintiff claimed he fell 12-15 feet onto slanting metal safety scaffolding at 6/F – first issue whether trial judge erred in rejecting plaintiff's evidence of a fall – held yes – medical evidence did not establish injuries inconsistent with fall from 12-15 feet – absence of injuries to heels and buttocks inconclusive as no evidence how plaintiff landed – accident report's omission of fall not decisive – employee Mr So who prepared report not called to give evidence, adverse inference drawn against defendants – Dr Man's medical report mentioned fall – plaintiff was sole direct factual witness and was found on safety scaffolding some distance away – no alternative explanation – fall established – second issue whether L4 condition caused by accident – held yes – per Lee Kin-kai v Ocean Tramping Co Ltd causation is for judge applying common sense, assisted but not bound by medical evidence – substantially contributing cause suffices – hospital admission note recorded tenderness over lower lumbar spine, bruising and swelling – progressive healing changes on later imaging consistent with trauma – tortfeasor takes victim as he finds him – L4 condition either caused by trauma or pre-existing asymptomatic degeneration triggered by accident – causation proved – third issue quantum – multiplier of 12 for man aged 44 working to about 60-65 reduced to 6 to reflect inherent risks of heavy construction work and risks from pre-existing degenerative condition per Chan Kam Hoi v Dragages et Travaux Publics – PSLA increased from $300,000 to $400,000 in light of causation reversal – pre-trial loss of earnings 51 months at net monthly income $38,835 less earnings as watchman from July 2000 less 2 days' earnings – future loss of earnings on multiplier of 6 – loss of earning capacity awarded – appeal allowed, cross-appeal dismissed, ECC award of $568,000 to be deducted from the agreed computation.
Legal issues: Whether the plaintiff fell 12-15 feet after being struck by a pipe during the accident · Whether the accident caused the plaintiff's L4 condition and resulting back disability · Appropriate multiplier and reductions for future loss of earnings · Appropriate award for pain, suffering and loss of amenities
Outcome: Appeal allowed; cross-appeal on liability dismissed (not pursued). The trial judge's rejection of the plaintiff's evidence of a fall was set aside; causation in respect of the L4 condition was established; damages reassessed substantially upwards.
Cited by 14 cases · Cites 3 cases
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CACV000016/2003 CACV 16/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 16 OF 2003 (ON APPEAL FROM HCPI NO. 530 OF 2001) ____________________
____________________ Coram: Hon Le Pichon, Cheung JJA and Suffiad J in Court Date of Hearing: 13 November 2003 Date of Handing Down Judgment: 25 November 2003 ____________________ J U D G M E N T ____________________ Hon Le Pichon JA: 1.This is an appeal from the judgment of Deputy High Court Judge Carlson dated 21 October 2002 whereby the defendants were ordered to pay the plaintiff the net sum of $718,000 together with interest in respect of a claim for personal injuries. Background 2.The plaintiff was a concrete worker on building sites, responsible for conveying mixed concrete up the building under construction to be poured into formwork out of which the building takes its shape. He was employed by the 1st defendant to do this work at Gateway II, Harbour City Redevelopment in Canton Road. The 2nd defendant was the main contractor at the site. 3.Mixed concrete was conveyed up a building by means of a series of steel pipes connected together by clips and rubber washers and fixed to the wall of the building by a series of brackets. The pipes were 6 inches in diameter and 3 metres long, each weighing 180 pounds. At the end of each day, the piping had to be cleared of remnants of concrete that from time to time adhered to the internal sides of the pipe. This was done by using a high pressure blower. If the concrete had set and could not be removed by using a blower, the particular section of pipe or pipes that had become blocked would have to be replaced with new sections. 4.On 26 June 1998, the plaintiff reported for work at 8 am and was instructed by a 2nd defendant's supervisor that the concrete casting work on the top floor of the building had to be completed that day. On the previous day, the plaintiff and his colleagues had to work until midnight to complete the casting process but when they started to clear the pipes by using the blower, it was discovered that much of the concrete had set and could not be blown out. 5.The plaintiff's evidence was that on the day in question, he and his colleagues had spent the entire day trying to clear the pipes of blockages. After working continuously (apart from meal breaks) for 19 hours, some blockages still remained. The affected pipes were between the 6/F and the 8/F and consisted of three sections. The uppermost section had to be removed first and the plaintiff set about doing that. He climbed out to the external wall from the edge of the 7/F. His evidence as to how the accident happened was summarised by the judge as follows:
6.The plaintiff was seen at the Accident and Emergency Department of Queen Elizabeth Hospital in the earlier hours of 27 June. On admission, examination showed tenderness over the upper thoracic and lower lumbar spine. There was some bruising and swelling over the corresponding area of his back. He did not have neck pain and the range of movement of the neck was full. X-rays taken did not reveal any fracture but an irregularity was found at L4 described by Dr Man who had compiled a report on 9 October 2000 from medical notes prepared by doctors who had attended the plaintiff on various occasions starting with the date of the accident as "a suspicious fracture" of the spinous process of L4. The plaintiff was hospitalised for about 5 days receiving conservative treatment. 7.About a week after the accident, on 3 July, the plaintiff was interviewed by a Mr So, an employee of the 2nd defendant who prepared an industrial accident report. The material part of the report read:
8.After discharge, the plaintiff received out-patient physiotherapy. When subsequently reassessed, he was not able to resume work because of back pain. He subsequently complained of neck pain and muscle spasms of the lower back, which symptoms were absent when he was originally taken to hospital. Further X-rays were taken 9 months later which showed "old avulsion fracture of antero-superior aspect of the body of L4". Three further months of occupational therapy had no positive results. The plaintiff's ability to work has been limited by his back pain and discomfort of the lower limbs. 9.The plaintiff was the only witness who gave direct evidence of what he was doing when the accident happened. The defendants did not call any witnesses of their own other than medical experts. They challenged the plaintiff's account. They took issue with the plaintiff's evidence that it had been raining that particular day. The defendants also relied on the accident report prepared by Mr So soon after the event which had made no mention of any fall. 10.There was also a serious disagreement by the medical experts as to the presence of what the plaintiff's experts have described as an avulsion fracture of the antero-superior aspect of the body of L4. According to the plaintiff's experts, this was caused by the blow by the pipe and the effects of the fall, bringing about the painful symptoms which are likely to be more or less permanent and which certainly prevent the plaintiff from resuming his pre-accident employment. The defendants' experts took a different view: this condition was totally unrelated to the accident and was therefore to be left out of account in any assessment of the effects of the accident. It followed that the judge's view of the medical evidence would directly affect the amount of damages recoverable. The judge's findings 11.The judge expressed his findings thus:
12.He gave three reasons for his findings. First, that there was no persuasive medical evidence to suggest that he had sustained such a fall. Second, in coming to that view, account had been taken of the fact that the accident report which the plaintiff gave to Mr So had made no mention of a fall. Thirdly, a matter which went to credit was the fact he disbelieved the plaintiff who had said that he had carried out the work in driving rain. The judge then made a factual finding that the plaintiff was able to hold on and lower himself to the ground where he was found, no doubt in pain, from where he was taken to hospital. He concluded on the medical evidence that the plaintiff had sustained an unpleasant blow to the centre of his back which resulted in contusions and bruising of the soft tissue, requiring him to take some time off work. He held that the other more significant painful symptoms were not attributable to the accident. 13.Based on those findings, had negligence been made out? The judge had this to say:
The judge dismissed the defendants' plea of contributory negligence, considering it little short of offensive in the circumstances of the case. The award 14.Given the judge's conclusion on the medical evidence, when it came to the assessment of damages, pain attributable to the condition at L4 had to be left out of account because causation had not been established. A total sum of $718,000 was awarded after giving credit for employee's compensation award of $568,000. The elements of the award are set out below.
15.So far as damages for PSLA were concerned, the judge made an award of $300,000 on the footing that the direct results of the accident should have comfortably resolved after a period of two years, and that the plaintiff's condition at trial which was dominated by the injury at L4 must be ignored.
16.This was assessed on the basis that the plaintiff would have been in a position to return to work after a period of two years. The judge made a finding that his earnings prior to the accident averaged $40,000 per month. Accordingly he awarded the plaintiff $960,000.
17.No award was made under this head since, in the judge's view, the plaintiff's difficulties at the date of the trial all stemmed from degenerative changes and other problems related to his condition at L4 which the judge found had not been aggravated by the effects of the accident. The claim for loss of earning capacity was rejected for the same reasons.
18.A sum of $26,000 was awarded under this head. This appeal 19.The plaintiff's appeal is not only as to quantum but is also against the judge's finding that the plaintiff did not sustain a fall at the time of the accident. The fall 20.Mr Chan SC who appeared for the plaintiff sought to challenge the judge's rejection of the plaintiff's evidence that he had fallen some 12 to 15 feet after being struck by the pipe he was dismantling. Mr Chan SC submitted that it had to be borne in mind that the plaintiff had given direct factual evidence of the fall which was not inherently improbable and that evidence had not been contradicted by any factual evidence. The plaintiff's claim therefore fell to be decided on a balance of probabilities only and, it was submitted, he had discharged that burden. 21.As noted in paragraph 12 above, the judge had given three reasons for the rejection of the plaintiff's evidence that he had sustained a fall. It was Mr Chan's submission that, when analysed, they had little substance.
22.The judge considered that there was no persuasive medical evidence to suggest that the plaintiff had sustained such a fall. He noted the absence of injuries to the plaintiff's heels and buttocks "which one would have expected to see" had the plaintiff sustained such a fall. However, that was not the effect of the medical evidence. In the context of medical evidence of injuries to the heels and buttocks, the premise of the questions giving rise to the answers is critical. Having reviewed the relevant parts of the transcript, it would appear that the questions put to the medical witnesses, eliciting answers which referred to injuries to heels and buttocks were premised either (1) on the plaintiff landing on his heels first and then the buttocks or (2) on the heels or buttocks (as the case may be) taking the brunt of the impact. See, for example, transcript 23.9.2002 p. 39 L-S, 24.9.2002 p. 16 D-F; p. 16 T- 17 N; p. 44 A-E. It was in that context that injuries to those parts of the anatomy were common. 23.This exchange in the cross-examination of the plaintiff's expert, Dr Au Ting Wah highlights the key factor:
This did not appear to have been a matter considered by the judge. In fact, Dr Au did ask the plaintiff how he had landed on the ground when he had the fall. Dr Au's account of the plaintiff's answer was this:
When there was simply no evidence as to how the plaintiff landed or which part of his body came into contact with the safety scaffolding first, the absence of injuries to the plaintiff's heels and buttocks has little, if any, significance. 24.Dr Au also had this to say:
Even the defendants' expert Dr. Tsoi Chi Wah considered that the injuries sustained by the plaintiff were consistent with a fall from a height of some 12 to 15 feet as appears from the following passage:
Significantly, it would not appear that there was any medical evidence to the effect that the plaintiff's injuries were incompatible with a fall from a height of 12 to 15 feet. 25.In these circumstances one is driven to conclude that the judge had misapprehended the medical evidence. 26.In addition, there are other relevant considerations which the judge appeared to have overlooked. Quite apart from the absence of evidence as to which part of the plaintiff's body first came into contact with the ground, it would not appear that the judge took into consideration the type of surface on which the plaintiff had landed. It was not a concrete platform as had been put to him in cross-examination. Rather, the plaintiff's evidence was that it was "a metal slanting platform which was a safety scaffolding sticking out to the roadway." This was at a small angle of about 30 degrees slanting inwards, the surface consisting of metal plates and resting on scaffolding. There is all the difference in the world between landing on a concrete surface and safety scaffolding lined with smooth metal plates.
27.This report, prepared by a Mr So about a week after the accident and signed by the plaintiff, had made no mention of a fall. The judge made the following observations:
28.But the plaintiff's evidence was unequivocal: he maintained that he had told So about the fall. Not only was it not put to the plaintiff that he never told So about it, So, who was an employee of the 2nd defendant, was not called to give evidence. Mr Chan SC rightly submitted that this was a matter that may properly be taken into account. In Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149, Aldous LJ cited the following passage from the judgment of Newton and Norris JJ in O'Donnell v Reichard [1975] VR 916 at 929:
29.It is further to be noted that So was not a "safety officer" as the judge had thought; rather, he was an employee of the 2nd defendant. Whilst a safety officer would have been trained in the task of recording industrial accidents, the same cannot be said of an employee of the main contractor. Had So given evidence, this aspect could have been further explored. As he did not, the plaintiff was deprived of the opportunity. In the circumstances, an adverse inference should have been drawn against the defendants. 30.Further, there was nothing inherently improbable about the plaintiff's explanation concerning the omission of a fall from the report. He explained that he could not read or understand some of the characters in the report due to his limited education (which was only up to primary level in the PRC during the cultural revolution). He had not noticed that there had been no mention of the fall in the report when he came to sign the declaration. 31.Then there was the medical report prepared by Dr Man on 9 October 2000 which had mentioned a fall. The report read:
The judge was not prepared to find that just because the fall had been mentioned in the second sentence that it was indicative of the fact that that had come from the initial admission notes in the absence of the medical notes upon which this report was based. He considered it "equally consistent with the plaintiff having indicated that he had fallen some time later in his treatment in order to increase the worth of his claim." (emphasis added) I do not agree. There was simply no evidence to warrant the inference that the fall had been mentioned only in a later visit. It was also inherently improbable from the way the report was written. What immediately followed the mention of the fall in the third (and not, as the judge thought, the second) sentence in the report is of significance. On a fair reading, it comes to this: the examination that took place had been made on admission to hospital and that related to injury at the time of admission, the injury so detected being that which preceded the sentence "No other injury was detected." For my part, I have considerable difficulty with the judge's analysis or interpretation of Dr Man's report. 32.For the reasons stated, the importance which the judge attached to the absence of the mention of a fall in the accident report was unwarranted.
33.This was an aspect relating to the plaintiff's credibility. The plaintiff had given evidence that it had been raining hard before and at the time of the accident. The defendants had produced a letter from the Hong Kong Observatory which set out meteorological data on 27 June 1998. They were criticised for not calling any evidence to interpret the table set out in the letter. Mr Chan submitted that it appeared to be data about Hong Kong generally. The point sought to be made was that the judge was wrong to rely on the data set out in the letter because it may not have related to conditions prevailing at Gateway II where the accident happened. But the table on its face is stated to be at "an extract of ... rainfall and weather condition observed at the Hong Kong Observatory" at the time and date stated. The Hong Kong Observatory is of course in Tsimshatsui which is where Gateway II is situated. The table showed that in the first three hours no rainfall had been recorded whilst in the fourth hour, there had been a trace of rainfall. That being so, in my view, the judge was entitled to conclude that, contrary to the plaintiff's evidence it had not been raining.
34.Two of the three reasons given for rejecting the fall had no substance. This must seriously undermine the judge's conclusion. More importantly, it would appear to be common ground that the plaintiff was found on the safety scaffolding. Surprisingly, no statement had been taken from the person who came to the plaintiff's assistance at the scene of the accident as one would have expected. Such a person who would have been an employee of either of the defendants would have been in a position to give a description of the plaintiff's position and condition when he was found. Be that as it may, given the judge's finding that the plaintiff was seeking to unclip the top section of pipe between the 7/F and the 8/F and his rejection of the plaintiff's evidence of a fall of some 12 to 15 feet, there still had to be an explanation of how the plaintiff ended up on the safety scaffolding which was some distance away. The judge made the finding that the plaintiff was able to hold on and lower himself to the ground, i.e. the safety scaffolding on the 6/F. 35.But that finding was not based on any evidence that was adduced at trial. Rather, it would appear to have been pure speculation. Moreover, on the assumption that the plaintiff was able to hold on, one asks rhetorically, why would he have lowered himself to the ground at 6/F level when he could have retraced his steps to the opening at the 7/F from whence he had climbed out to the external wall? The most natural explanation was that the plaintiff lost his grip and fell. Such a fall would be consistent with having been unexpectedly hit in the back when clinging on to the pipe. 36.The only factual evidence before the judge was the plaintiff's own evidence. There was no other factual evidence to contradict the plaintiff's account. In the circumstances of the case, not only had there to be cogent reasons for rejecting the plaintiff's evidence, there had to be other evidence which would have explained how the plaintiff ended up where he was found. Absent the existence of such evidence, coupled with his misapprehension of the medical evidence discussed above and the mistaken importance attached to the accident report, it was not open to the judge to have rejected the evidence about the fall particularly as there was the corroboration of the fall in Dr Man's report. In my view, the judge's rejection of the plaintiff's evidence of the fall is unsustainable. There was ample evidence to find and, in the circumstances, the judge ought to have found that the plaintiff fell some 12 to 15 feet after being struck by the pipe. The cross appeal 37.It would be convenient at this stage to record that the cross appeal on liability was not pursued in the course of the hearing. Quantum 38.If the plaintiff did sustain a fall when the accident happened, that would affect the assessment of damages. His present disabilities are attributable to the fall either because it caused the fracture at L4 or triggered a pre-existing condition being the degeneration of his spine which until the accident had been asymptomatic. In this regard, I fully agree with the judgment of Cheung JA, a draft of which I have had the advantage of reading.
39.In his supplementary medical report dated 6 April 2002, Dr Tsoi opined that the plaintiff's persistent back pain over the back was a combined effect of "pre-existing degenerative spine" and soft tissue contusion injury of the lower back. Mr Chan SC does not dispute this. 40.In a further supplementary medical report dated 12 April 2002, Dr Tsoi opined that:
41.Medical evidence on this issue was controversial. Dr Au did not share Dr Tsoi's view which he considered to be an exercise in crystal ball gazing. He considered the prognosis too uncertain for any firm view to be formed as to the likely number of working years the plaintiff could reasonably expect to have. He was not able to reach the conclusion that Dr Tsoi had reached in the absence of scientific data or study in support. Dr Tsoi was unable to produce such supporting data, relying only on his clinical judgment. The judge made no finding on the conflicting medical evidence on this point, no doubt because that was an unnecessary exercise given his rejection of the claim to future loss of earnings. 42.Initially Mr Chan SC had invited this court to follow the approach of Deputy Judge B Yu SC in Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors [2002] 4 HKC 76 at 82I that the tortfeasor must take the victim as he finds him. After considering Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 to which his attention had been drawn, Mr Chan SC agreed that the approach set out in Chan Kam Hoi should be adopted. As explained in that case, the conventional approach is to make a deduction from the multiplier to take into account the risks associated with the plaintiff's pre-existing condition. Mr Ozorio SC who appeared for the defendants submitted that an additional reduction is appropriate, relying on Mortimer VP's observations in Chan Kam Hoi (at 966E), that for a man doing heavy work on construction sites, a reduction of the multiplier is appropriate to account for inherent risks apart from those associated with any pre-existing condition. 43.On the facts of this case, I agree that the reduction must not only account for the inherent risks involved in doing heavy construction work on construction sites but also reflect the risks associated with the plaintiff's pre-existing condition of degeneration of the spine.
44.As to the appropriate multiplier, Mr Chan SC submitted that as the plaintiff was 44 at the date of trial, the starting point should be a multiplier of 12. There was evidence from the plaintiff that generally concrete workers can work to the age of over 60. In Chan Kam Hoi, the appropriate multiplier was held to be 12 years for a man aged 45 for future loss of earnings to the age of 65. I agree that 12 years would be about right before reduction. Taking a global view of the reductions required as stated in paragraph 43 above, I consider a multiplier of 6 to be appropriate.
45.It is agreed that the amounts payable in respect of pre-trial loss of earnings as well as loss of future earnings should be net of tax. The parties have been able to agree the tax computations both for the pre-trial loss of earnings as well as for loss of future earnings. Further, the plaintiff accepts that he is able to take up jobs like a watchman which would attract earnings of $6,500 a month. On the judge's findings, he would have been able to take up such employment 2 years after the accident. The loss of earnings falls to be calculated accordingly. It should be noted that the plaintiff was granted sick leave until 17 December 1999. Hence the judge's assessment of 2 years is appropriate.
46.There are two further matters that must be mentioned. 47.A video surveillance tape recording made between 12 and 22 November 2001 showed that on two of the days, the plaintiff was seen entering a building site and not to emerge again until after the end of the working day. The plaintiff volunteered the fact he had attended the site for the whole of the previous week to assist a friend who was involved with concrete casting work. The judge did not accept that explanation and reached the conclusion that the plaintiff had been working on the occasions that he was seen i.e. on the two days as recorded in the tape. He made no finding as to when he started work since it had no effect on the amount of damages to which, in his view, were recoverable by the plaintiff. Mr Chan SC indicated that the income so earned should be deducted. In the absence of any finding as to his earnings on those occasions, adopting a rough and ready approach, they should be assessed on the basis of the plaintiff's average monthly earnings of $40,000 or say $1,500 per day. 48.The disability of the plaintiff clearly creates a handicap for him in the labour market. Accordingly damages for loss of earning capacity should be awarded.
49.The judge made the award of $300,000 on the footing that the injury at L4 which accounted for the plaintiff's persistent back pain had to be left out of account. In view of the reversal of the judge's finding as to the fall and the consequential resolution of the causation issue, the amount must be revised upwards. In all the circumstances, I consider that a sum of $400,000 in respect of PSLA is appropriate. Computation of damages
Order 50.I would allow the appeal and dismiss the cross appeal. I have set out above the basis for computing the amount of damages including interest to which the plaintiff is entitled. From this the ECC award must be deducted. The parties are to agree the computation and submit an agreed draft order for approval. 51.I would also make an order nisi that the costs of the appeal be to the plaintiff and the plaintiff's own costs to be taxed in accordance with legal aid regulations. Hon Cheung JA: The medical evidence 52.I agree with the judgment of Le Pichon J.A. 53.I will only deal briefly with the question of causation and the medical evidence. There is no doubt that according to the X-ray photographs and the CT scan of the lumbar spine of the plaintiff taken on the date of the accident, there was abnormality of the bone structure at the L4 region. The plaintiff's medical experts described it as a depression at the corner of L4 body with small bone fragment at the depressed area. They stated that this was the result of a fracture. The defendant's medical experts described it as a limbus vertebra. They stated that this was caused by the degeneration of the back of the plaintiff. The judge accepted the evidence of the defendant's experts. The proper approach 54.The approach of the court in considering the question of causation in the light of the medical evidence is stated by this Court (per the late Hunter J.A.) in Lee Kin-kai v. Ocean Tramping Co. Ltd. t/a Ocean Tramping Workshop [1991] 2 HKLR 232 :
The circumstances 55.In considering the cause of the plaintiff's disability in the back region, the court is not confined to the medical evidence but is entitled to look at all the surrounding circumstances. There is evidence that the plaintiff on admission to the hospital had informed the hospital that he had a fall after being hit by the water pipe. The hospital record revealed that on admission there was "tenderness over the upper thoracic and lower lumbar spine" of the plaintiff. There were also "some bruises and swelling" at the same region. These are objective evidence which supports the plaintiff's claim of a fall and is consistent with an injury to the L4 which is at the lower lumbar spine. Overview 56.In regard to the medical evidence, it is important to bear in mind the overview emphasized by the plaintiff's medical experts which was not fully articulated in their medical reports but was only apparent from a reading of the transcript of the evidence. The gist is that one must look at the whole picture of the plaintiff's medical history and not merely confining it to the conditions shown on the X-ray photographs and CT scan taken on the date of the accident. 57.The overview showed that the plaintiff had suffered a back injury 15 years before the present accident in 1998. Apparently the injury had healed and nothing untoward had happened until the present accident. The plaintiff then complained of the accident and abnormality of the plaintiff's back was revealed. During the interval between the accident and shortly before the trial in September 2002, X-rays, CT and MRI scans taken by the plaintiff further revealed that there was progressive calcification and ossification of the affected area in L4. This was described by the plaintiff's experts as a healing process. 58.This overview lends credence to the plaintiff's case that there was a trauma as a result of the fall which caused an injury to the L4 region. The healing process was consistent with an injury to the affected area. The defendant's own expert Dr. Danny Tsoi recognized that this evidence as being consistent with the plaintiff having met with an accident in 1998. The judge had not dealt with the overview in his judgment. Causation is proved 59.There are, of course, other matters relied upon by the defendant's experts, such as the absence of signs of bleeding and swelling at the X-ray photographs and CT scans taken eight hours after the accident, the presence of the sclerotic margin at the affected area and that the limbus vertebra could be formed either by reason of development or degeneration. These are of course relevant matters but they are not matters that will conclusively show that there was no trauma. 60.While the evidence clearly showed that there were signs of degeneration on the plaintiff's back, the surrounding evidence and the overview of the medical evidence in fact support the plaintiff's case that, on a balance of probability, his back pain and disability was caused by the accident as described by him in 1998. 61.The accident was not merely an unpleasant blow to the centre of the plaintiff's back by a falling pipe as described by the judge but also included the fall that followed afterwards. While the blow by itself may not necessarily cause the injury, it must be the impact of the blow together with the fall which caused the injury at the L4 region. 62.This is consistent with the diagnosis of a fracture caused by a trauma. It is equally consistent with a trauma causing the degeneration which had remained asymptomatic to manifest its symptom of pain and discomfort to the plaintiff. The medical evidence, properly analyzed, in fact lends support to the plaintiff's case. The result is the same 63.In either situation, causation has been proved : the plaintiff's disability is caused by an accident due to the fault of the defendant. 64.Mr. Warren Chan, S.C., counsel for the plaintiff, is content to rest his case on the latter situation. He is clearly entitled to rely on this in the appeal even if the judge had not addressed this issue. The principle that a tortfeasor must take the victim as he finds him was relied upon by counsel for the plaintiff at the trial. Had the judge found that there was a fall, I have no doubt that he would continue to address the two situations I have just stated. There is sufficient evidence adduced in this case for a finding to be made on either of these two situations. Hon Suffiad J: 65.I have had the benefit of reading in draft both the judgments of Le Pichon JA and Cheung JA. I am in total agreement with both their judgments and have nothing to add. Hon Le Pichon JA: 66.Accordingly, the appeal and cross-appeal will be disposed of as proposed in paragraphs 50 and 51 above.
Representation: Mr Warren Chan SC and Mr Simon H W Lam, instructed by Messrs William Sin & So, for the Plaintiff/Appellant Mr Michael Ozorio SC and Mr Patrick Lim, instructed by Messrs Tsang, Chan & Wong, for the 1st and 2nd Defendants/Respondents | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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