YAN KWOK SING v. TSANG YUEN FAI

HCPI 276/2022

[2025] HKCFI 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 276 OF 2022

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ASSESSMENT OF DAMAGES

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Introduction

1.  The Plaintiff claimed against the Defendant for personal injuries suffered in a traffic accident on 27 July 2021.  By consent of the parties, interlocutory judgment on liability was entered on 1 December 2022 against the Defendant leaving damages to be assessed. 

2.  This is the assessment of damages.  Having heard the Plaintiff’s testimony (with him being the only witness) and the parties’ submissions during the trial, I reserved judgment, which I now hand down.

Background

3.  The Plaintiff was born on 21 November 1967.  He received primary education in Hong Kong and is married with two adult children. 

4.  At around 8:25pm on 27 July 2021, he was riding a motorcycle along Hong Ning Road, Sau Mau Ping in an uphill direction towards Kwun Tong.  The Defendant was at that time driving a taxi along the second lane of Hong Ning Road but in the opposite direction towards Sau Mau Ping. 

5.  When the parties were near the junction of the road with Wo Hong Path, the Defendant pulled into the junction across the path of the Plaintiff’s motorcycle causing a collision of the two vehicles.  The Plaintiff was trapped under the Defendant’s vehicle and suffered serious injuries. 

6.  The Plaintiff was admitted to the Accident and Emergency Department of Queen Elizabeth Hospital at 9:17pm.  He was diagnosed as having sustained multiple injuries from a traffic accident, and on medical examination he was found to have right upper eyelid bruise, open wounds over both knees, and abrasion over lower abdomen.  X-ray examination showed bilateral femur fracture.  CT scan revealed thin rim of acute subdural haemorrhage over right cerebral convexity at right temporal region with haemorrhagic focus at left basal ganglia. 

7.  The Plaintiff was then admitted under the care of the Surgery Department of Queen Elizabeth Hospital at around 9:37pm on the same night.  On 28 July 2021, open reduction internal fixation to the right patella was performed.  On 30 July 2021, open reduction internal fixation with intramedullary nailing to the left femur, removal of external fixator and debridement and partial thickness skin graft was performed; open reduction internal fixation with intramedullary nailing to the right humerus and rotator cuff repair were also performed. 

8.  On 3 August 2021, the Plaintiff was extubated and transferred from trauma bed to orthopaedic ward.  On 11 September 2021, he was transferred to Kowloon Hospital for rehabilitation, and he was eventually discharged on 4 November 2021. 

9.  Due to his left femur non-union, he was re-admitted to the Orthopaedics and Traumatology Department of Queen Elizabeth Hospital on 18 May 2022 and received further surgery the next day.  He was again transferred to Kowloon Hospital for rehabilitation and was discharged there on 21 June 2022. 

10.  Subsequent x-ray examination revealed delayed union of left femur with very slow progress of union.  He was admitted to Queen Elizabeth Hospital on 28 November 2022 for further operations.  He was then transferred to Kowloon Hospital for rehabilitation on 16 December 2022 and was discharged on 30 December 2022.

11.  Apart from the aforesaid occasions where he was hospitalised, the Plaintiff attended physiotherapy treatments, occupation therapy treatments and various other kinds of treatments on numerous occasions in both public and private healthcare institutions.  It can be seen from the medical records that he was still attending medical consultation as late as on 4 September 2024. 

Joint Medical Examination

12.  On 15 June 2023, the Plaintiff attended a joint examination by the parties’ respective orthopaedic experts, namely Dr Lau Hoi Kuen and Dr Ho Ching Lun Henry.  The experts have produced a joint medical report dated 8 August 2023. 

13.  As recorded in the report, the Plaintiff told the experts that he had recovered well from the head injury and his eyesight was preserved.  He complained that there was intermittent pain in both his right and left lower limbs, and the pain would be worse after he stood for 10 minutes or after he walked for some short distance.  He felt crepitation and stiffness in both knees.  His left lower limb was shortened.  His right shoulder suffered stiffness and intermittent pain at the end range of motion.  His right upper limb felt weak and he sustained low back pain on the right side. 

14.  From their physical examination, the experts observed that there was a global decrease in the active range of motion of the Plaintiff’s right shoulder with some muscle wasting.  There was mild stiffness in his right elbow, both of his hips and both of his knees.  There was no evidence of active arthritis of his knees and the movement of his lumbar spine was satisfactory with pain arising mainly from the paraspinal muscles.  The left lower limb was shortened by 1cm, and there were also differences in his limb girths, with his right thigh girth and calf girth being 47cm and 37.5cm and the left side corresponding girths being 46.5cm and 36.4cm. 

15.  The experts recorded the range of movement of the Plaintiff’s limbs in degrees as follows:-

		Right	Left
Hip joint	Flexion	110	110
	Abduction	40	45
	Adduction	20	30
	External rotation	50	60
	Internal rotation	0	0
Knee	Flexion	110	100
	Extension	full	Full
Ankle	Dorsiflexion	15	15
	Plantarflexion	50	50
	Subtalar	symmetrical	symmetrical
Shoulder joint	Flexion	90	170
	Extension	60	70
	Abduction	95	180
	Adduction	20	30
	Internal rotation	70	90
	External rotation	80	90
Elbow joint	Extension	full	Full
	Flexion	115	130

16.  X-rays were taken on the day of the examination, and they showed that the previous facture shaft of the left femur was not yet united although it was in satisfactory alignment after the intramedullary nail fixation, whereas the previous facture shaft of the right femur healed in satisfactory alignment. The skyline view of the knees showed degenerative change of the patella-femoral compartments, which was more severe on the right side. 

17.  Both experts agreed that based on the documentation, the Plaintiff suffered from head injury with subdural hematoma fracture of the right inferior orbital wall, comminuted fracture of the right proximal humerus and tear of the rotator cuff tendon in the right shoulder, fracture of the right proximal femur and right patella, and fracture of the left femur shaft.  They also agreed that the mechanism of the injury as described by the Plaintiff, ie vehicle collision, was consistent with his injuries.  That said, Dr Lau noted no evidence of pre-existing factor, while Dr Ho said there was degeneration over the patellofemoral compartment of both knees and there was a low probability that their natural progression would have brought about his present state.  He would accordingly apportion 30% of his right knee condition to pre-existing degeneration.

18.  Regarding the Plaintiff’s disability:-

(1)  Dr Lau opined that the Plaintiff’s fractures (apart from the left femoral fracture) had healed radiologically but there would always been significant degrees of soft tissue and pain due to residual scarring around the fractures.  The fracture of his right knee patella ended up in malunion, so pain from the patella-femoral joint could not be avoided, which would affect his ability to squat and to climb stairs and slopes.  He opined that the Plaintiff could not practise boxing again and he would advise the Plaintiff not to ride a motorcycle in future.  He evaluated the Plaintiff to have suffered a total of 16% whole person impairment with a loss of earning capacity of 16%.

(2)  Dr Ho considered that the Plaintiff had made a remarkable recovery and there was only mild motion loss at the hips, knees and right elbow.  Despite the apparent global loss of motion of the right shoulder, the muscle bulk in the right arm and forearm were still greater than those in the left, indicating that the Plaintiff achieved a very good functional recovery.  There was no severe muscle wasting in the thighs and in the legs. With both femurs stabilized with intramedullary nails and the right patella healed, the Plaintiff should be able to walk very well without aid.  He opined that the Plaintiff could take up leisure boxing after losing some weight first, and that he should have no difficulty riding a motorcycle again.  He evaluated the Plaintiff to have suffered a total of 7% whole person impairment with a loss of earning capacity of 4%. 

19.  Dr Lau was of the view that it would take 6 to 12 months for the Plaintiff’s left femoral fracture to be fully united and Dr Ho opined that his left femur should solidly heal by December 2023 (ie 6 months from the joint examination).  Both experts agreed that the Plaintiff had reached the stage of maximal medical recovery for his other injuries and further treatment would not be necessary. Dr Lau considered that accelerated degeneration of the Plaintiff’s right patellofemoral joint would be expected in 5 to 10 years necessitating operative treatment, whilst Dr Ho considered the prognosis of his right knee to be good, though he would have anterior knees pain due to pre-existing degeneration.  

20.  With the aforesaid observations, Dr Lau concluded that the Plaintiff should be able to resume working as a taxi driver but there would be limitation in his working capacity because of increased pain in the lower limbs after prolonged driving; he would benefit from taking a break every 30 to 45 minutes.  Dr Ho also said the Plaintiff could drive a taxi.  Further, he said the Plaintiff could ride a motorcycle.  His lower limb symptoms should be minor and easily relieved by simple stretching exercise. 

21.  Both experts agreed that the sick leave granted up to the date of the joint medical examination was appropriate.  Dr Lau considered that the Plaintiff should have at least six more months of sick leave for his left femoral fracture to heal (ie at least up to December 2023), whereas Dr Ho thought his left femur facture should solidly heal by December 2023 and by then his sick leave should end.  

Pain, Suffering and Loss of Amenity (“PSLA”)

22.  The Plaintiff claimed $750,000 for PSLA.  In his Revised Statement of Damages, he sought to justify his claim by pleading that prior to the accident, he had an outgoing personality and led a very active life.  As a result of his disabilities, he could no longer enjoy his usual activities and his general enjoyment of life was marred.  In his witness statement, he elaborated by saying that before the accident one of his hobbies was riding his motorcycle and he enjoyed frequent traveling.  These had been marred as he had mobility issues caused by the traffic accident. 

23.  Mr Wong Chi Kwong, counsel for the Plaintiff, submitted that with reference to the views of DHCJ Gill stated at §34 of Ngan Pik Ha v Wong Sau Lai [2005] 4 HKLRD 1, I should have regard to the Plaintiff’s injuries, the trauma of the accident, the treatments received by him, the number of operations he underwent, the length of time he was hospitalized and the length of sick leave.

24.  Mr Wong submitted that the Plaintiff’s injuries should be categorized as “serious” (see Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 for a discussion of the disablement categorization by the Court of Appeal, with the “serious” category covering cases where the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim) and they should be placed on the top end of that category.  The awards for PSLA for different categories of injuries were recently updated by His Honour Judge Andrew Li in Cheung Ka Man v Wong Yu Huen [2023] HKDC 370 at §117 as follows:-

(1)  Serious: $585,000 - $789,000

(2)  Substantial: $789,000 - $966,000

(3)  Gross disability: $966,000 - $1,463,000

(4)  Disaster: $1,463,000 and up

25.  Further, Mr Wong drew my attention to among others the following cases, which he submitted to bear similarities to the present case (though inflation would have to be taken into account in considering the PSLA awarded in those cases):-

(1)  Ho Ah Look v Nam Kin Scaffolding Ltd HCPI 156/1996 (unreported, 28 May 1999): The plaintiff fell from scaffolding and sustained head injuries, fractures of right femur and superior pubic ramus of pelvis.  He underwent two operations and was advised not to return to pre-accident employment.  He was awarded damages of $564,000 for PSLA. 

(2)  Poon Chi Kwong v Poon Wing Kee (Metal Work) HCPI 1340/2003 (unreported, 23 December 2005): The plaintiff fell from the top of a retaining wall and suffered multiple fractures to his left tibia and fibula, right femur and first and third vertebrae.  He underwent three operations and was hospitalized for 100 days.  He was awarded damages of $550,000 for PSLA. 

(3)  Phoon Ka Wai v Wong Ka Chung HCPI 768/2003 (unreported, 15 September 2005): The plaintiff sustained injuries from a traffic accident.  He suffered minor traumatic head injury, fractured right first rib, right clavicle, right distal radius and patella.  He underwent multiple operations and his capacity to function in pre-accident role was seriously compromised.  Damages for PSLA were assessed at $500,000. 

26.  The Defendant, on the other hand, pleaded that despite the injuries, the Plaintiff presented a normal daily life when surveillance of him was conducted from June to August 2023, and damages for PSLA should not exceed $300,000.  Mr Alex YH Lai, counsel for the Defendant, submitted that despite the multiple injuries suffered by the Plaintiff, the case did not fall within even the “serious” category, as the Plaintiff had good functional recovery and was independent in carrying out his daily activities. 

27.  Mr Lai submitted that a comparison with the following two cases would be apposite:-

(1)  Mak Rachel Wing Nam v Ching Kai Chung [2022] HKDC 1481: The plaintiff suffered fractured left wrist, fractured right wrist complicated by ruptured right thumb extensor tendon, open-book type facture pelvis, laceration of urinary bladder, small serosal tear, fractured left tibial plateau and fractured sacrococcyx.  She underwent multiple operations on five days and she had good recovery and was independent for all daily activities.  Her injuries did not fall within the “serious” category and at best came close to the bottom end of that category.  PSLA of $500,000 was awarded. 

(2)  Kot Yik Kam v Kwok Kam Hung HCPI 292/2004 (unreported, 1 February 2005): The plaintiff was hit by a lorry and suffered multiple fractures including closed fracture shaft of right ulna bone, closed fracture left distal radius, open fracture at the shaft of right tibia and fibula, closed fracture right medial malleolus and skull fracture at the right temporal region.  She received four courses of surgical treatments and was found to have delayed union of right tibial fracture which necessitated further operation.  A Cheung J (as Cheung CJ then was) held that the case fell short of the “serious” category and awarded the plaintiff PSLA of $400,000. 

28.  I have taken note of the trauma suffered by the Plaintiff as a result of the accident, the multiple surgeries he has undergone, the numerous occasions where he attended therapies and medical consultations, and the rather long period of hospitalization.  Nevertheless, I am of the view that his case does not fall within the “serious” category:-

(1)  Even according to his own expert Dr Lau, the Plaintiff could resume working as a taxi driver, not to mention that Dr Ho opined that he could also ride on his motorcycle and resume his habit of boxing practice.  In other words, despite the multiple injuries suffered by him, the Plaintiff is not left with mere reasonable mobility.  Rather, he has good mobility and it cannot be said that the his disability is so serious as to mar his general activities or enjoyment of life.

(2)  More importantly, despite the opinion of Dr Lau, the undeniable fact is that the Plaintiff could actually resume riding his motorcycle.  On 5 April 2022, he was issued a traffic ticket for driving on closed road without permit on that day.  During cross examination, he admitted that he was indeed trying to ride his motorcycle there with his friend that day.  Notably, although he was careful in saying that he “tried”, he did not say he failed to drive it.  Also, according to the indisputable surveillance findings, he rode on his motorcycle on 28 July 2023 and 8 August 2023. 

(3)  Further, as can be seen in the surveillance video footage, the Plaintiff attended the joint medical examination on 15 June 2023 himself and could afterwards walk to a nearby sauna parlour all by himself.  On the various occasions between 15 June and 8 August 2023 when he was put under surveillance, the Plaintiff was conducting his daily activities himself.  While he had a walking stick with him, he did not always walk with the aid of that stick and I cannot observe any serious limping when he walked with or without the stick. 

(4)  In support of his claim for special damages, the Plaintiff produced numerous receipts for massage services he received in Shenzhen, Mainland China in 2023 and 2024.  Some receipts showed that he went with one or more companions, but some showed he went alone.  This shows that he was at least able to travel from his home in Kowloon City to Shenzhen, and he could do so not infrequently. 

29.  Considering his ability to ride on his motorcycle, conduct his daily activities and travel to Mainland China, I do not think his injuries placed his case in the “serious” category, let alone the top end of that category.  On the other hand, the fact remains that the injuries subjected him to various surgeries and a long period of hospitalization, and that there is delayed union of his left femoral fracture.  I consider his case to be close to the bottom end of the “serious” category and to resemble the cases referred to by the Defendant. 

30.  I would assess damages for PSLA at $550,000.  Mr Lai has sensibly not invited me to discount the award of PSLA by reason of any pre-existing condition; after all Dr Ho’s suggestion of the Plaintiff’s pre-existing condition is not corroborated by any medical history of the Plaintiff and is in any event confined to the Plaintiff’s right knee. 

Pre-Trial Loss of Earnings

31.  In his Revised Statement of Damages, the Plaintiff made the following contentions:-

(1)  On the basis of Dr Lau’s opinion that it could take up to 12 months for his left femoral fracture to heal (it appears that the Plaintiff counted the 12 months from the date of the joint medical report instead of the date of the joint examination), he should be entitled to sick leave from 27 July 2021 to 31 August 2024, ie 1130 days.

(2)  At the material time before the accident, he was working two jobs as a taxi driver as well as a Deliveroo driver.

(3)  His median monthly earning as a Deliveroo driver was $19,470.21.  He drove a red taxi for 14 days a month and he could pocket $1,000 a day.  Thus his monthly income from driving taxi was $14,000. 

(4)  His pre-trial loss of earnings was $1,260,711.24 (ie ($19,470.21 + $14,000) / 30 days x 1,130 days). 

32.  The Defendant took issue with the appropriate length of sick leave, the Plaintiff’s earnings as a Deliveroo driver and the Plaintiff’s allegation that he worked as a part-time taxi driver. 

Sick Leave Period

33.  On the issue of sick leave, as noted above, Dr Ho opined that the Plaintiff’s sick leave should end by December 2023, whereas Dr Lau said the sick leave period should last at least until December 2023.  Mr Wong for the Plaintiff acknowledged the opinion of the experts but he made the following submissions:-

(1)  On 29 November 2023, a doctor of Queen Elizabeth Hospital granted sick leave to the Plaintiff till 14 February 2024. 

(2)  On 14 February 2024, another doctor of Queen Elizabeth Hospital allowed sick leave up to 8 May 2024. 

(3)  On 8 May 2024, yet another doctor of Queen Elizabeth Hospital allowed sick leave up to 1 September 2024. 

(4)  Finally, on 4 September 2024, a doctor of Queen Elizabeth Hospital granted sick leave to the Plaintiff till 1 December 2024. 

(5)  Relying on Sunwar Navin Kumar v Gurkhas Construction Limited HCPI 59/2020 (unreported, 12 March 2024) at §94, it was submitted that sick leave granted by doctors in public hospitals should be taken into account. 

(6)  Further, relying on Chan Siu Lung v Yip Kam Shui t/a Ying Tung Engineering Co [2023] HKCA 1144, it was submitted that pre-trial loss of earnings would not necessarily end with the expiry of reasonable sick leave.  After 1 December 2024, the Plaintiff should be allowed around two months to seek employment. 

(7)  It was therefore submitted that the Plaintiff was entitled to claim full loss of earnings for 42 months from 27 July 2021 (ie the date of the accident) to 26 January 2025 (ie the date when the Plaintiff should obtain employment after the end of his sick leave).  

34.  The Defendant prayed reliance on the views of both Dr Lau (ie his view that it may take at least six months for the Plaintiff’s left femoral fracture to heal) and Dr Ho to contend that the Plaintiff should be allowed loss of earnings only for the period from 27 July 2021 to 31 December 2023.  In this regard, Mr Lai for the Defendant submitted that the ultimate question was not whether a treating doctor would grant sick leave certificates, but rather when the Plaintiff could have resumed his pre-accident employment.  As Le Pichon JA said at §18 in the oft-quoted case Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210:-

“18. Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence before the court…”

35.  With respect, I am unable to accept Mr Wong’s proposed calculation of the appropriate sick leave period.  His methodology, while grounded on some documentary evidence, deviated significantly from what the Plaintiff pleaded in his Revised Statement of Damages.  As noted above, the Plaintiff’s case was that he should be entitled to sick leave up to 31 August 2024 because of Dr Lau’s view, as set out in the joint medical report dated 8 August 2023, that it may take up to 12 months for his left femoral fracture to be fully united.  In his Revised Statement of Damages, he did not seek to rely on the subsequent sick leave certificates granted by the doctors of Queen Elizabeth Hospital, and did not contend that he should be allowed two months to seek employment after the end of his sick leave. 

36.  The importance of precisely formulating one’s claim for damages in a statement of damages cannot be overlooked.  In this connection, §62 of Practice Direction 18.1 stipulates as follows:-

“62. ... The Statement of Damages, any Revised Statement of Damages and / or Answer thereto will stand as part of the pleadings and should be pleaded with full particulars to facilitate early resolution of the case.”

37.  It would be unfair to the Defendant to allow the Plaintiff to adopt a methodology proposed by Mr Wong which is fundamentally different from the one pleaded in the Revised Statement of Damages, as the Defendant would be deprived of the opportunity to adduce evidence to challenge the necessity of the additional sick leave certificates and the reasonable period for the Plaintiff to seek employment.

38.  Further, the various sick leave certificates were granted to the Plaintiff in somewhat unusual circumstances.  While the doctor appeared to grant sick leave to the Plaintiff on 29 November 2023 out of his own volition, the doctor who granted sick leave on 14 February 2024 specifically noted that it was the Plaintiff who requested sick leave and who claimed he could not resume duty.  The doctor who granted sick leave on 8 May 2024 also left a specific remark saying “legal proceedings in progress”.  As the Plaintiff sought to rely on these sick leave certificates only at the trial, the Defendant was not afforded any fair chance to investigate into the actual circumstances under which the doctors decided to grant sick leave to the Plaintiff. 

39.  In any event, I agree with Mr Lai that at the end of the day what I have to determine is when the Plaintiff could have gone back to work.  Dr Ho said the Plaintiff’s left femur would solidly heal by December 2023; Dr Lau did not really differ from that, but he said it might take another six months beyond December 2023.  Their assessment was proved to be accurate by subsequent medical inspections.  On 14 February 2024, the Plaintiff attended Queen Elizabeth Hospital and the doctor noted in the consultation notes that the x-ray taken in October 2023 showed his left femur to have healed with callus.  Similarly, on 8 May 2024, the Plaintiff attended another consultation session, and the doctor noted that the x-ray taken in February 2024 revealed that his left femur healed with callus.  There is no evidence from the Plaintiff to suggest that “healed with callus” somehow means that his left femur had not healed yet.  

40.  Taking into account the views of the two experts and the actual medical records, I consider it as a matter of fact that the Plaintiff has solidly healed by December 2023 and would be able to resume his pre-accident employment starting from 1 January 2024. 

41.  Relatedly, when I said the Plaintiff should be able to resume his pre-accident employment, I meant he should be able to do it fully both as a taxi driver and food delivery driver.  While Dr Lau did comment that the Plaintiff should not be able to ride on his motorcycle again, the undeniable fact is that the Plaintiff could resume riding on his motorcycle as early as in April 2022.  Other than commenting on the Plaintiff’s (in)ability to ride on a motorcycle, the experts did not suggest that the Plaintiff could not resume working as a food delivery driver.  When commenting on his working capacity, even Dr Lau only suggested that the Plaintiff would need to take breaks intermittently.  Common sense dictates that a taxi / food delivery driver can take breaks between rides.  I do not think the Plaintiff would have earned a lower income if he had chosen to resume working on 1 January 2024. 

42.  I also take into account the fact that the Plaintiff has always been living with his family on the fourth floor of an old building in Kowloon City with no lift, and he has not suggested that he has had any difficulties in accessing his residence.  This indicates he should be able to perform his duties as a food delivery driver even if the destination happens to be in old buildings with no lifts.  

43.  In sum, I find that the Plaintiff is entitled to claim pre-trial loss of earnings for the period from 27 July 2021 to 31 December 2023.  

Earnings as a Taxi Driver

44.  The Defendant contended that there was no pre-accident document in support of the Plaintiff’s allegation that he worked as a taxi driver at the time of the accident.  What I understand the Defendant to mean is that while there was some corroborating documentation for the earlier years, there was no documentation when it came to the time the accident happened.  The Plaintiff has not produced any contemporaneous ledgers that recorded his income as a taxi driver, but he has produced the following tax returns documentation:-

(1)  In the tax returns dated 6 June 2016, he declared that he worked as a part-time taxi driver between April 2015 and March 2016 earning a total income of $53,100. 

(2)  In the two subsequent tax returns dated 1 June 2017 and 15 June 2018, he no longer stated himself to be a taxi driver. Rather he declared to be a worker for a fish stall.  He did not seem to have reported his occupation in the tax returns dated 5 May 2019. 

(3)  In the tax returns dated 5 July 2020, he again declared himself to be a taxi driver for the period between April 2019 and March 2020, earning a total income of $68,500. 

(4)  Lastly, in the tax returns dated 28 October 2021 (ie post-accident), he declared that he worked for a couple of months as a worker in a fish stall earning $21,650.  In addition, he worked as a taxi driver from April 2020 to January 2021 earning $90,700 and as a food delivery driver from July 2020 to January 2021 earning $185,030. 

(5)  He disclosed only part of his tax returns dated 5 October 2022 for the 2021/2022 financial year, and it cannot be seen what occupation he declared to have taken up between April 2021 and July 2021, ie the few months prior to the accident. 

45.  The Plaintiff also produced a rental agreement dated 2 January 2021 titled “的士司機租車自行營業租約”, pursuant to which he purportedly rented a taxi for his own operation for 14 days a month.  After the accident, the Plaintiff submitted an application form dated 16 December 2021 to the Social Welfare Department for financial assistance under the Traffic Accident Victims Assistance Scheme where he declared himself to be a taxi driver and food delivery driver. 

46.  Despite the aforementioned documentation, I am not satisfied that the Plaintiff was working as a taxi driver in the few months prior to the accident:-

(1)  As noted above, while he declared the complete tax returns for the previous financial years, he somehow chose to withhold the most important page of his tax returns for the 2021/2022 financial year which would have shown his declared occupation from April 2021 until the accident in July 2021.  During cross examination, the Plaintiff could offer no explanation for this other than saying he should have already passed everything to his solicitors.  I would draw an adverse inference against him that the complete tax returns for the 2021/2022 financial year would not have supported his claim that he worked as a taxi driver at the material time: see Telings International Hong Kong Limited v John Ho CACV 10/2010 (unreported, 22 October 2010) at §§79-80. 

(2)  Relatedly, in her order dated 3 April 2023, Master Kot specifically ordered the Plaintiff to produce among others the records and receipts for the expenses for running his taxi service.  In his affirmation dated 9 May 2023, he merely said he had thrown away the receipts issued by gas stations, but he somehow omitted to say if the taxi owner would issue any receipts to him for the car rental. 

(3)  While the Plaintiff did produce a taxi rental agreement, the probative value of this document is limited even though its authenticity was not challenged.  The contractual period of the rental agreement is not stated.  In other words, while the Plaintiff may have rented the taxi in January 2021, the agreement sheds no light on whether he rented it for other months, crucially the months from April to July 2021.  

(4)  The contents of the agreement are inconsistent with the Plaintiff’s testimony.  As noted, the agreement recorded that he rented the taxi for 14 days a month.  In his witness statement, he also said he worked 14 days a month for one shift as a taxi driver.  However, during cross examination, Mr Lai pointed out that as a Deliveroo driver he would mostly work between 12noon and 2pm, ie the lunch hours.  The Plaintiff then modified his evidence by saying that he actually only worked half of one shift as a taxi driver.  A usual morning shift taxi driver would work from 5am to 5pm, whereas he worked from 5am to around 11am or 12 noon. 

(5)  In view of his answer, I specifically asked him whether he would still pay the full rental for one shift, and he answered in the affirmative.  However, towards the end of his cross examination, he changed his evidence by saying that as he promised the owner he would return the taxi at 12 noon, he only had to pay $300 odd as daily rental. 

(6)  The Plaintiff’s account as to why he worked only half of one shift as a taxi driver instead of one shift is inherently unbelievable.  He claimed he could pocket around $1,000 a day for working half of one shift.  Why he did not simply work a full shift to double his income begs explanation, especially when he could only earn $200 - $300 for working the lunch shift as a Deliveroo driver.  One must also have regard to his answer in re-examination that he wanted to earn more money to support his daughter’s study for a master’s degree in the United Kingdom. 

(7)  He accepted that his alleged daily earning of $1,000 as a taxi driver was exceptionally high, but he managed to earn that much because he was in a Tung Chung group (“東涌群組”) where he and his friends could serve passengers taking long rides to and from Tung Chung.  It is inexplicable then as to why the Plaintiff did not produce any written communications in the Tung Chung group to corroborate his claim. 

(8)  A few days after the accident, the Plaintiff consulted a clinical psychologist in Queen Elizabeth Hospital on 5 August 2021.  In the consultation note, it was stated that the Plaintiff was a food delivery driver.  There was no mention of him working as a taxi driver.  In cross examination, the Plaintiff explained that it sufficed for him to inform the psychologist of one of his employment.  This is odd, especially when in an earlier part of the cross examination he said he would tell people both of his jobs when asked. 

(9)  Last but not least, with regret I find it necessary to take the Plaintiff’s evidence with a grain of salt.  As will be seen below in my analysis of his claim for special damages, I find the Plaintiff to be untruthful, which would adversely impact on his general credibility. 

47.  For the aforesaid reasons, I find on a balance of probabilities that at the material time prior to the accident, the Plaintiff was not working as a part-time taxi driver. 

EARNINGS AS A FOOD DELIVERY DRIVER

48.  In his witness statement, the Plaintiff contended that his average monthly earnings as a Deliveroo driver was $19,288.21.  He said he actually earned $20,845.05 and $20,531.37 in June and July 2021 respectively, and on that basis he said his average monthly earning was $20,688.21.  Taking $1,400 as the overheads brings his net monthly earning to $19,288.21. 

49.  Actually, the Plaintiff has produced his earlier income records as a Deliveroo driver, and he has offered no principled reason as to why in calculating his average income he should be permitted to cherry pick June and July 2021, which happened to be the two months where he earned most as a Deliveroo driver. 

50.  Mr Lai has helpfully pointed out that the Plaintiff had disclosed 179 days of payment records from Deliveroo, and the total income was $103,353.79.  That gives a monthly income of $17,321.86.  On the Plaintiff’s own case, the monthly overhead was $1,400.  I would therefore adopt $15,921.86 ($17,321.86 - $1,400) as his pre-accident monthly income.  

QUANTUM

51.  There are 29 full months between 27 July 2021 and 31 December 2023.  As to the five days between 27 and 31 July 2021, I would calculate the loss of earnings at $2,653.64 ($15,921.86 / 30 x 5).  The total pre-trial loss of earnings would be $464,387.58 ($15,921.86 x 29 + $2,653.64). 

FUTURE LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY

52.  The Plaintiff alleged that even if he was to resume working as a taxi driver, he could earn at most $10,000 a month.  Given my findings above that (1) he was not working as a taxi driver at the material time and (2) he was able to resume fully working as both a taxi driver and food delivery driver, I would not award him any future loss of earnings. 

53.  As to loss of earning capacity, the Plaintiff claimed $500,000 as he said he would be at a disadvantage in the open labor market if he was  to lose his employment and had to compete with other able bodied workers.

54.  Mr Lai submitted that as a matter of principle, where a plaintiff works as a self-employed taxi driver, he should not be entitled to claim damages for loss of earning capacity.  He referred to Lo Kwok Fai v Ngan Cheung Wah [2003] 1 HKLRD 82 where DHCJ Barma SC (as Barma JA then was) said the following at §35:-

“ … However, in view of my finding that the plaintiff could and should have returned to work as a self-employed taxi driver, in which case he would be his own employer, I do not think that it would be appropriate to make any award under this head.”

55.  Regardless of whether the Plaintiff chooses to resume work as a taxi driver or a food delivery driver, he will be self-employed.  Even though Mr Wong in his closing submissions only asked for a nominal sum for loss of earning capacity, I do not think any award under this head is justified.  

OTHER SPECIAL DAMAGES

56.  In his Revised Statement of Damages, the Plaintiff claimed a total of $85,108.55 comprising medical expenses, tonic food expenses, massage service fees, and most glaringly, taxi fares in the sum of $25,468.50. 

57.  In his closing submissions, Mr Wong sensibly did not press for the taxi fares and instead sought travelling expenses of $8,000.  Notwithstanding that, it is necessary for me to analyze the Plaintiff’s claim under this head as it has an impact on his credibility:-

(1)  To support his claim, the Plaintiff has produced a large number of taxi fare receipts.  Those receipts are revealing.

(2)  The receipts show that certain taxis were called multiple times.  For instance, the taxi bearing the registration number TH7339 was called for over 100 times. 

(3)  The taxi bearing the registration number DT7881 was also called for numerous times.  This taxi was the one which the Plaintiff purportedly rented under the aforementioned rental agreement. 

(4)  Another peculiarity was the time the taxis were called.  For example, on 8 July 2022, the service of taxi DT7881 was used for the period between 1:03pm and 1:21pm.  On the same day, there was a receipt issued by taxi TH7338 for service rendered between 1:03pm and 1:20pm. 

(5)  There were occasions where taxi service was called even though the Plaintiff was hospitalized or in Mainland China; for instance on 17 June 2023 there were two receipts from taxi KC2385 when the Plaintiff was in Shenzhen. 

(6)  When pressed in cross examination, the Plaintiff had to accept that most of the taxi rides were not taken by him. Rather, he said his friends would drive their taxis to deliver food or other things to him and would charge him the taxi fares, sometimes even including such surcharges as tunnel fees. 

(7)  The Plaintiff did not offer such an explanation in his witness statement.  He just produced the receipts as if all the rides were taken by him.  The explanation was obviously made up by him on the spot and is so unbelievable that I have no hesitation in rejecting it.  I find it more likely than not that the Plaintiff collected taxi receipts from his friends to boost his claim for travelling expenses. 

58.  In light of the highly unsatisfactory evidence adduced by the Plaintiff, I am only prepared to grant him $5,000 as traveling expenses. 

59.  To support his claim for massage service fees, the Plaintiff produced some receipts issued by some massage parlours in Shenzhen.  During cross examination, it was exposed that on many occasions the receipts actually showed that more than one customer was patronizing the massage parlour.  On at least one occasion there were even six customers.  The Plaintiff explained only for the first time in the witness box that sometimes he would go with his family and friends.  It appears that the visits to the massage parlours were more for entertainment than medical purpose.  In any event, there is no expert evidence showing that those massage services would assist the Plaintiff’s recovery.  

60.  The Defendant did not dispute the Plaintiff’s claim for medical expenses (including the purchase of an electric wheelchair) insofar as they were incurred in hospitals and clinics, be they public or private, and insofar as they were incurred before the Plaintiff fully healed.  On my calculation, those medical expenses amount to $39,743.  Further, in the absence of medical evidence proving the necessity of tonic food, I accede to the Defendant’s suggestion that a nominal sum of $5,000 be granted under this head. 

61.  I would in total award other special damages in the sum of $49,743 to the Plaintiff, comprising $39,743 for medical expenses, $5,000 for traveling expenses and $5,000 for tonic food expenses. 

CONCLUSION

62.  To conclude, I have assessed the damages payable to the Plaintiff as follows: (1) PSLA of $550,000; (2) pre-trial loss of earnings of $464,387.58; and (3) other special damages of $49,743. 

63.  I make the following orders:-

(1)  The Defendant do pay $550,000 to the Plaintiff and interest on the sum at 2% per annum from the date of the writ (28 October 2022) to the date of this judgment and thereafter at judgment rate until payment; and

(2)  The Defendant do pay $514,130.58 to the Plaintiff and interest on the sum at half the judgment rate from the date of the accident (27 July 2021) to the date of this judgment and thereafter at judgment rate until payment. 

64.  I make an order nisi that the Defendant do pay the Plaintiff’s costs of the action, to be taxed if not agreed, with certificate for counsel.