Back pain, wrist pain and shoulder pain are some common injuries suffered by workers. Prior to the injuries, many people may have latent physical or psychological predisposition or have suffered from injuries to same body part more than once, and in some cases, the symptoms remain asymptomatic until the subject accident happened. This article seeks to identify how these pre-existing conditions affect injured person’s claim under (i) Common Law Negligence and (ii) Employees’ Compensation.

Common Law Negligence Claim
The case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 (the “Chan Kam Hoi Case”) illustrates how damages would be assessed when pre-existing conditions are involved. In this case, the Plaintiff had a degenerative condition of the spine which had presented no symptoms up to the time of the accident. The Court of Appeal derived the principle in dealing with pre-existing conditions and came up with 3 scenarios:

1.          Where the Plaintiff was almost certain to have gone through life unaffected by the condition, the Defendant would be liable for all damage caused;

2.          Where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff’s present state, it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life; and

3.          Where the present condition would be certainly have occurred at some stage in any event, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred. 

It is for the Defendant to prove that the Plaintiff’s pre-existing condition falls into Scenario 2 or 3 and an appropriate reduction in damages ought to be made. In assessing whether reduction in damages ought to be made, the Court will look at:

1.          The cause of Plaintiff’s injury;

2.          Whether the pre-existing condition has been asymptomatic before the accident;

3.          Whether the pre-existing condition will remain asymptomatic but for the accident; and

4.          The extent of the pre-existing condition.

In the Chan Kam Hoi Case, the Trial Judge at the Court of First Instance found that the Plaintiff’s pre-existing condition would, in the absence of a further accident, have deteriorated to such an extent as was likely to force him to give up his pre-accident occupation. The Court of Appeal allowed a global discount of 45% on damages for Pain, Suffering and Loss of Amenities, Pre-Trial Loss of Earnings and Post-Trial Loss of Earnings, reflecting the extent that the Plaintiff’s working life is likely to be limited by a pre-existing condition.

In the case of Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd. & other [2002] 4 HKC 76, the Court accepted that the Plaintiff had degenerative changes over his lumbar spine prior to the accident, however, the Plaintiff had no back pain prior to the accident and only developed such pain after the accident. Since there is no evidence saying that the Plaintiff’s pre-existing condition would have caused the same disability now suffered by the Plaintiff in due course, the Court did not make any discount in damages for the Plaintiff’s pre-existing condition.

Employees’ Compensation Claim
For injury sustained at work, compensation will be claimed under Section 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance”). When pre-existing conditions are in issue, a different approach is adopted for claims under this Ordinance. 

In LKK Trans Ltd v Wong Hoi Chung [2006] HKCU 330, the Court of Final Appeal held that the Employees’ Compensation Ordinance is a no-fault scheme aimed at giving quick financial relief to employees incapacitated by work-related injury. The Scheme permits employees to look to their employers for compensation having regard to the extent of the incapacity suffered, regardless of any fault on the part of the employer and regardless of the circumstances in which the work accident arose. Thus, no apportionment shall be permitted by reason of the pre-existing conditions of the injured person as it will cause delay and uncertainty in alleviating the incapacitate employee’s hardship.

The Court goes on to state that it suffices for full employees’ compensation that the injury was a cause (even if not the sole cause) of the death, permanent total incapacity, permanent partial incapacity or temporary incapacity. As such, the Court awarded full compensation without apportionment to reflect the existence of a pre-existing disease as a concurrent cause of the employee’s incapacity.

Conclusion

Even if a victim has suffered from a pre-existing condition, it does not necessarily mean his/her compensation will be reduced.   In Common Law negligence claim, the Court will look at supporting evidence to determine if the pre-existing condition will cause the victim to suffer similar injury in future and if yes, apply a discount accordingly. In Employees’ Compensation Claim, on the other hand, no discount will be made even though the victim has pre-existing condition as long as the victim can prove that the injury he received in the accident was one of the causes of his incapacity.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.