KONG KAM YUEN v. YIM TO KEUNG AND ANOTHER

DCPI 1971/2013

[2018] HKDC 407

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1971 OF 2013

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JUDGMENT

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Introduction

1.  On 25 June 2011, the plaintiff driving a light goods vehicle had a head-on collision with another light goods vehicle, driven by the 1^st defendant and owned by the 2^nd defendant, and sustained personal injuries.  The plaintiff claimed that the accident was caused by the negligence of the 1^st defendant, for which the 2^nd defendant was vicariously liable.

2.  On the first day of trial, I was informed by the parties that the defendants admitted liability (on a joint and several basis) on 4 March 2016 and the trial will be an assessment of damages.  I therefore entered interlocutory judgment against the 1^st and 2^nd defendants on liability on a joint and several basis with damages to be assessed.

Summary of plaintiff’s medical treatment

3.  I adopt the summary of the plaintiff’s medical treatment set out in the joint medical report of Dr Fu Wai Kee (for the plaintiff) and Dr Ko Put Shui Peter (for the defendants) dated 17 April 2014, and the joint psychiatric report of Dr Wong Kai Choi (for the plaintiff) and Dr Chung See Yuen (for the defendants) dated 7 November 2014.

4.  On 25 June 2011, after the accident, the plaintiff attended the Accident and Emergency Department of the Prince of Wales Hospital.  He complained of neck pain.  The medical notes recorded some pain at the neck region.  X-ray of the cervical spine showed no fracture.  He was treated with medication and discharged with sick leave on the same day.

5.  On 29 June 2011, the plaintiff attended the Accident and Emergency Department of Caritas Medical Centre.  He complained of increased neck pain and lower back pain.  Physical examination revealed tenderness over the plaintiff’s cervical and lumbar spine region.  The range of movement was reduced.  He was referred to physiotherapy and sick leave was granted.

6.  The plaintiff started to receive outpatient physiotherapy at the Alice Ho Miu Ling Nethersole Hospital on 11 July 2011 and received a total of 20 sessions of treatment.  Upon final assessment on 1 February 2012, he complained of neck pain 4 to 5 out of 10 on NPRS (Numeric Pain Rating Scale).  The range of movement of his neck flexion was 50 degree, extension was 40 degree and rotation was 3/4 of the normal range in both sides.  Right shoulder flexion was 150 degree with pain.  He defaulted physiotherapy after treatment on 1 February 2012.

7.  On 16 August 2011, the plaintiff attended the orthopaedic clinic of the Alice Ho Miu Ling Nethersole Hospital for consultation.  He complained of persistent neck pain. No radicular symptoms of both limbs was noted.  Physical examination revealed tenderness over both trapezius muscles.  The range of movement of cervical spine was reduced.  There was no tenderness over lower lumbar region and no signs of neurological deficit.  X-ray of cervical spine and lumbar spine was normal.  He was treated with medication and physiotherapy.  He also complained of mood and sleep disturbance.  Depressed mood with pain and fear avoidance was noted during the first consultation.  Physiotherapist assessment noted high Orebro score which was suggestive of high psychosocial contributors for his chronic pain.  He was referred to pain clinic and clinical psychologist for chronic pain management.  He was last seen at the orthopaedic clinic on 11 September 2012 with pain improvement after trigger point injection by pain specialist.  He defaulted follow-up appointment on 6 November 2012.  His neck pain was recorded as having reached a state of maximum medical improvement.  He was referred to the occupational therapy department for work capacity evaluation but he defaulted the appointment twice on 24 May 2012 and 21 November 2012.

8.  On 29 August 2011, the plaintiff was first seen at the pain management clinic of the Alice Ho Miu Ling Nethersole Hospital.  Clinical examination showed pain and tenderness over lower cervical spine and bilateral trapezius muscles, aggravated by movement.  There was no upper and lower limb neurological impairment.  He reported that he was suffering from insomnia.  He scored 12 in anxiety sub-scales and 8 in depressive sub-scales.  The result implied his anxiety and depression needed further attention and treatment.  He was treated with medication, and he was referred to clinical psychologist for coping strategies and mood management.  Over the next few visits, he was also referred to psychiatrist for treatment of low mood.  On 9 August 2012, he received trigger point injections to the back of his trapezius spasm.  He defaulted follow-up on 15 October 2012.

9.  On 21 October 2011, the plaintiff was first seen at the East Kowloon Psychiatric Centre for depressive mood.  He complained of insomnia with difficulty in falling asleep as affected by neck pain.  He was diagnosed with severe depression without psychotic symptoms.  He was treated with medication and follow-up in the centre.  The available psychiatric record up to 30 May 2014 showed that the plaintiff attended a total of 24 sessions, out of which 11 were overdue attendances (ranged from 3 to 35 days), and 1 was before due attendance (6 days).  During the initial phase of treatment, drug compliance was reported to be irregular most of the time.  Later on, his drug compliance was improved and reported to be good mostly.  In early 2014, there was report of poor drug compliance and long default period, and his mental condition was worsening at the time.  He presented with sense of hopelessness and suicidal idea.  He was treated with antidepressant since October 2011.

10.  Sick leave was granted to the plaintiff continuously from 25 June 2011 to 6 November 2012.

Plaintiff’s complaints

11.  The joint medical report recorded the following:-

(1)   Neck and bilateral trapezius muscle pain (intermittent) – the plaintiff complained of on and off neck with bilateral trapezius muscle pain, aggravated by turning of neck and cold weather.  The pain was sometimes sporadic that occurred daily. He could not tell the duration.  He said the neck pain had improved after treatment but it was static for about a year.  He also complained of crepitation of neck on movement.  He said he could only lift oranges for short distance due to neck pain.

(2)   Headache (including whole head) – the plaintiff said he had mild on and off headache before the accident.  The frequency and intensity of headache increased after the accident.  The pain affected his sleep.

(3)   Back pain – the plaintiff complained of on and off low back pain after the injury.  The pain was sporadic and occurred 1 to 2 times a week.  Each attack lasted for 30 to 60 minutes.  The back pain was static in the past year.

(4)   Lower limb weakness – the plaintiff complained of easy fatigue on walking after the injury.

(5)   Activities of daily living were independent.  The plaintiff could manage transportation by himself.  He said he tried driving private car or van after the injury but he could not drive more than one hour.

12.  The joint psychiatric report recorded the following:-

(1)   The plaintiff reported that his mood was depressed after the accident.  Depressive mood was increasing in severity over the past three years because of increasing financial strain, relationship problem with his wife and family, and low self-esteem secondary to his unemployment due to injury after the accident.  He described his predominant mood was depressed in the past three years.  He could not experience happiness when his son was born in 2013.

(2)   There was lack of interest.  The plaintiff said that he enjoyed gathering with his friends before the accident.  After the accident, he did not gather with his friends anymore. Recently his friends did not contact him.  Even if he was invited for a gathering, he would not attend.  He did not read newspaper recently.  He read newspaper daily before the accident.

(3)   The plaintiff found that there was subjective decrease in body weight, and there was decrease in appetite.  He could not sleep well without hypnotics.

(4)   The plaintiff would stay home in daytime.  He rarely went out, unless he needed to go to market, or he went out after quarreling with his wife.  He had poor relationship with his wife.  His wife criticized him because he was unemployed and stayed at home most of the time.  He had low self-esteem and guilty feeling towards his family.  He blamed himself for his failure in earning for his family and causing suffering of his family.

(5)   The plaintiff presented with suicidal thought and death wishes.  In 2012, he attempted to jump from height and was stopped by his friend.  He said that suicidal thought was persistent.  Although he did not commit suicide, he said that he hoped he would suffer from terminal illness or encounter a lethal accident.

(6)   The plaintiff admitted that he would display temper towards his family and stranger.  His relationship with his wife was poor, and they had frequent conflict.  He might throw or kick object at home, and it had hurt his wife accidentally.  He admitted that, on two occasions, he attempted to strangulate his daughter.  His acts were stopped by his wife.  He also attempted to fight a stranger in the MTR.

(7)   The plaintiff lacked motivation and confidence to seek a new job.  Due to his experience and educational level, he believed he could not seek a new job, other than driver and delivery worker, which he could not resume due to his neck and back pain. He had poor stress tolerance and could not wait for more than 15 to 20 minutes in the Labour Department. 

Plaintiff’s diagnosis and prognosis

13.  The joint medical report concluded that the clinical picture of the plaintiff is compatible with the diagnosis of soft tissue injury of neck and back.  Dr Ko and Dr Fu agreed that the injury should be due to the accident which happened on 25 June 2011.

14.  The joint medical report also concluded that the plaintiff had reached maximum medical improvement.  Dr Fu opined that the plaintiff is expected to have some residual impairment such as pain and stiffness and will need symptomatic treatment on a need to basis.  Dr Ko took the view that the plaintiff’s back injury should have recovered well when he attended the orthopaedic clinic of the Alice Ho Miu Ling Nethersole Hospital for consultation as he was recorded to have no tenderness over lower lumbar region and no signs of neurological deficit.  As for his neck injury, Dr Ko opined that it should be relatively uncomplicated soft tissue neck sprain injury.  For both neck and back injuries, treatment of up to a period of about 6 to 8 months after the occurrence of the injury should be considered appropriate, reasonable and adequate.

15.  Dr Fu opined that the plaintiff could return to his original work as van driver but not delivery worker, since he will have difficulty in heavy manual lifting and long period of driving.  His efficiency will be reduced due to the neck and back impairments.  His concentration will be affected by the pain.  He suggested that the plaintiff should have some rest after two hours of driving.

16.  Dr Ko opined that the plaintiff’s physical condition should allow him to resume his pre-accident job as a self-employed van driver cum deliverer without any significant impairment of his work efficiency and effectiveness.

17.  The joint psychiatric report concluded that the plaintiff’s mental complaints are compatible with major depressive disorder without psychotic features.  Dr Wong took the view that the depressive episode was related to the plaintiff’s injury resulting from the accident.  Dr Chung also opined that the plaintiff’s major depressive disorder was wholly caused by the accident and was consistent with the circumstances of the accident, and the plaintiff had not suffered from pre-existing mental problems.  The stressors causing such major depressive disorder are the accident, worries about his neck and back symptoms, unemployment, and financial difficulty, all relating to the accident.

18.  Dr Wong opined that the level of psychiatric impairment to the plaintiff should be mild to moderate, whereas Dr Chung opined that it should be mild and compatible with all useful functioning.

19.  Dr Wong opined that pharmacological treatment is necessary for a period of time for the plaintiff’s depressive episode.  However, he did not respond well with pharmacological treatment, and intervention of family therapy and cognitive therapy may take a period of time to be effective.  It is difficult to estimate the time needed for his recovery, and it is unlikely for the plaintiff to be fully recovered from depressive episode within 12 months.  If his depressive episode can be recovered, he could resume his previous job.  However, hypnotics may impair driving ability so resumption of his previous job as a driver is not recommended during the treatment period.

20.  Dr Chung opined that the plaintiff’s mental condition had reached maximum medical improvement, and the treatment could be tailed off in six months.  Both psychological and drug treatment are needed.  The plaintiff is mentally fit to work during the period of his psychiatric treatment, and the use of psychiatric medication should not prevent him from driving.  He is mentally fit to return to his pre-accident job and persist at the job, and any adverse effects of the mental problems on his work efficiency would be slight.

Surveillance video

21.  Surveillance video footages of the plaintiff were played in court and I summarize my observations as follows:-

(1)   22 July 2014 – the plaintiff was carrying bags over his left shoulder and right hand; he appeared in a normal gait and was walking up and down stairs.

(2)   3 August 2014 – the plaintiff was carrying a bag over his left shoulder; he appeared in a normal gait, he was seen squatting down; another footage on the same day showed the plaintiff bending down to lift his daughter from her fall; carrying bags over his right shoulder and left shoulder; and squatting; a further footage on the same day showed that the plaintiff was standing, squatting, bending his upper body and appearing in a normal gait, and was apparently in a good mood.

(3)   9 August 2014 – the plaintiff was shown to be buying groceries on his own and appeared in a normal gait.

(4)   17 February 2015 – the plaintiff was seen to be taking pictures with his mobile phone for a long time without any apparent problem.

(5)   15 March 2015 – the plaintiff was shown squatting, lifting his son over his left shoulder, and carrying a back pack, with smooth movements throughout.

22.  Upon reviewing the video surveillance footage and report, Dr Ko opined that apportionment should be made to reflect the plaintiff’s pre-existing impairment due to previous accidents (in 2006 and 2008), and if no previous medical records are available, a 50% apportionment should be adopted.  He also observed that the possible residual neck pain and stiffness caused by the accident should be less than 0.5%.

Plaintiff’s witnesses

23.  The plaintiff and his wife both gave evidence, which was by and large consistent with their account set out in the joint medical and psychiatric report.  They testified as to their strained relationship after the accident and the plaintiff’s mood swing and temper.  In this regard, I find both of them to be credible witnesses and I accept their evidence.

24.  The plaintiff alleged that he was still suffering from neck and back pain which prohibited him from seeking employment.  There were good and bad times, and on the worst occasion he could not move a part of his neck, and sometimes he was in pain when walking, or could not even walk.  I do not accept this part of the plaintiff’s evidence, which I find inconsistent with the surveillance footage and the medical records in particular the fact he had defaulted physiotherapy after treatment on 1 February 2012.  I find that the plaintiff’s back injury had recovered by August 2011, and that by February 2012 his pain caused by his neck injury had subsided as reflected in his ceasing physiotherapy.

Pain, suffering and loss of amenities

25.  The plaintiff claims $350,000.   The defendants are prepared only to accept no more than $50,000 (limited only to his neck and back injuries), or $100,000 (taking into account also his psychiatric illness).  The defendants also ask for a 50% apportionment to reflect the fact that the plaintiff had previous accidents in 2006 and 2008, and would have suffered injury prior to the accident in the present case.

26.  I decline to make any apportionment.  There is no evidence to suggest that the plaintiff was suffering from pre-existing neck and back pain prior to the accident.  In my view, Dr Ko’s proposed empirical 50% apportionment was completely arbitrary and unfounded.

27.  I accept the plaintiff has suffered major depressive disorder directly caused by the accident on 25 June 2011.

28.  Upon considering the authorities submitted by Ms Lui for the defendants including Li Kam Wah v Ng Ying Tuen & Anor, DCPI 386/2001 (9 August 2002), Lai Ka Yin v Chan Yiu Kei, DCPI 453/2008 (7 January 2009), and Chu Kwong Fu v Wonder Gold Investment Limited, HCPI 295/2014 (21 May 2015), and the circumstances of the plaintiff, and also taking into account inflation over the years, I award a sum of $120,000 for both physical and psychiatric suffering of the plaintiff.

Pre-trial loss of earnings

29.  I find that the plaintiff has recovered from his neck and back injury latest by February 2012 when he ceased receiving physiotherapy.  The appropriate sick leave period is therefore 7 months.

30.  The defendants criticized the plaintiff for failing to adduce any documentary evidence to show his claimed pre-accident income at $4,770 per month.  That may be so but it is not extraordinary for a light goods vehicle driver and deliver man not to keep full documentary record of his casual earnings which he received by cash.  It was the plaintiff’s oral evidence that he worked for about 18 days per month in the year prior to the accident and would earn about $400 to $600 a day, such that upon deducting his overheads, he would earn no less than $4,770 per month.  I find his explanation credible, and is also in line with the 2011 census wages and payrolls figures adduced by the plaintiff for the job description “transportation craftsmen”.  I accept the figure of $4,770 as the plaintiff’s pre-accident average monthly earnings.

31.  The plaintiff’s pre-trial loss of earnings is therefore $4,770 x 7 months = $33,390.

Future loss of earnings / loss of earning capacity

32.  I decline to make any award under these two heads:-

(1)   In light of my findings above, there is no reason why the plaintiff did not (or could not) return to his pre-accident employment after February 2012.  His failure to do so was only the result of his subjective thought that he would not be able to do so due to pain after driving for long periods of time.

(2)   There was also no reason why the plaintiff did not secure (or could not have secured) alternative employment at all even up till today.  The “slips” which he produced at trial obtained from the Labour Department were only dated June and July 2015, and even so these were all directed at physically demanding jobs. 

33.  Whilst I accept that the accident caused psychiatric illness to the plaintiff, there is no evidence to suggest that such illness could not be controlled by proper medication and treatment.  The plaintiff’s on and off psychiatric conditions must be viewed in light of the fact that there were occasions when he had defaulted in his drug compliance.  In addition, the joint psychiatric report also did not suggest that the plaintiff was not in a position to return to any gainful employment despite his illness.

34.  In the premises, there is no basis for me to make any award for future loss of earnings, or future loss of earning capacity.

Special damages

35.  I allow a total sum of $5,435 for medical visits (which are supported by documents) and $200 for taxi expenses, totaling $5,635.

Future medical expenses

36.  In the Re-Re-Revised Statement of Damages, the plaintiff claims expenses for future medical and other treatments as follows:-

(1)   costs of psychiatric treatment in the public sector for 25 years at $1,000 each half year: $50,000; and

(2)   costs of psychiatric treatment in the private sector in every 3 years until the age of 70 at $15,000 each half year: $111,500.

37.  The plaintiff reduced the number of years of treatment in the public sector to 22 years in his closing submissions.

38.  I agree with Ms Lui that there is no medical evidence that the plaintiff requires psychiatric treatment for another 22 (or 25) years.  There is also no explanation why the plaintiff claims for future treatment in both private and public sectors.  I decline to make any award.

Interest

39.  For general damages, the applicable interest rate should be 2% per annum from the date of the Writ until the date of trial. 

40.  For special damages, the applicable interest rate should be half the judgment rate from the date of accident up to the date of trial.

Disposition

41.  In conclusion, I award a sum of $120,000 for pain, suffering and loss of amenities, $33,390 as pre-trial loss of earnings, and $5,635 as special damages.  The total award is $159,025.

42.  There is no reason why costs should not follow the event.  I make a costs order nisi that the plaintiff shall have the costs of this action, to be taxed if not agreed, with certificate for counsel.  The costs order nisi will be made absolute within 14 days from the date of this judgment, in the absence of any application by summons for variation.

43.  I thank counsel for their assistance.