VALLANCE SIMON NEIL v. LAI SZE FUNG

HCPI 707/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 707 OF 2003

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ASSESSMENT OF DAMAGES

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Introduction

1. By the Statement of Claim filed on 7 July 2003, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a taxi HV6314 (“the Taxi”) by the Defendant.

2. Interlocutory judgment on liability was obtained on 24 November 2003 with damages to be assessed.

The Plaintiff’s Case

3. On 16 December 2001 at about 0717 hours, the Plaintiff was driving his motorcycle HP9576 along Tai Po Road, Tai Wo Section (“the Road”) northbound heading in the direction of Fanling.  The Defendant was driving the Taxi along the southbound of the Road heading Tai Po.  On reaching near the T-junction of the Road with Mui Shu Hang Road, the Defendant right turned into Mui Shu Hang Road and cut across the path of the Plaintiff thereby causing a collision between the two vehicles and the Plaintiff sustained severe personal injuries.

4. The Plaintiff was born on 25 November 1966 and was just over 35 years old at the time of accident.  He was 38 years old at the date of trial.

5. After the accident, the Plaintiff was admitted into the Accident and Emergency Department of the Alice Ho Miu Ling Nethersole Hospital and was then transferred to the Department of Orthopaedics and Traumatology.  Their medical findings were as follows:

(a)	fracture of medial plateau of left proximal tibia;
(b)	rupture of ulnar collateral ligament of right 1st metacarpophalangeal joint;
(c)	avulsion fracture of lateral condyle of right 1st metatarsal;
(d)	fracture of proximal phalanx of left 4th toe;
(e)	left hip pain with normal CT finding;
(f)	abdominal pain with normal ultrasound finding.

6. The left tibial fracture was treated surgically with arthroscopically assisted close reduction and screw fixation.  Post-operatively the left knee and the right thumb were braced.  Ankle walker was given to his right foot.  The Plaintiff received physiotherapy as an outpatient up to about 2002 after his discharge on 24 December 2001.  The Plaintiff was granted sick leave up to 3 September 2002.

7. When the Plaintiff was examined by Dr. Lau Hoi Kuen on 9 April 2003, he complained

“	(a)	Pain in left knee, not persistent in nature.  The pain is associated with:
		-	getting out of bed in the morning
		-	after walking for more than 30 minutes
		-	getting up from the seat after sitting for more than 45 minutes
		-	climbing stairs
		-	kneeling on the left knee
		-	poor weather.
	(b)	Difficulty with squatting and he cannot run.
	(c)	Stiffness of the left knee.
	(d)	Swelling of the MCP joint of his right thumb.
	(e)	Discomfort in the MCP joint of his right thumb with poor weather and using tools such as spanner, screw driver and hammer.
	(f)	Weakness of his right handgrip.
	(g)	Bony swelling over the knuckle of his right big toe.
	(h)	Pain in his right big toe with full squatting, wearing tighter shoes and starting the vintage motorcycle.
	(i)	Frequent ache in his back and neck after the accident, usually occurring at the end of the working hours.”

8. Dr. Lau, the Plaintiff’s doctor, gave the following diagnosis and prognosis:

(a)	the injuries were consistent with the mechanism of injury in the accident;
(b)	the prominent screw heads over the proximal aspect of the left tibia caused significant tenderness at the point.  (They were removed in March 2004);
(c)	the Plaintiff was still left with residual irregularity of the joint surface (malunion).  This was the cause of the persistent pain in his left knee.  The significant muscle wasting of his left thigh was good evidence that his complaint of persistent pain in his left knee was a genuine one;
(d)	the Plaintiff was still left with residual discomfort and swelling of the 1st matacarpophalangeal joint.  Physical examination revealed soft tissue swelling of the capsule and the ligament of the joint.  The pain is associated with radially directed force to the joint.  There is also mild limitation of the movement of the joint;
(e)	the Plaintiff has residual pain and swelling at the basal joint of his right big toe.  There was bony swelling of the joint with limitation and pain with dorsiflexion of his right big toe.  X-ray shown permanent abnormality of the joint with malunion of the fracture and there were signs of degenerative arthritics of the 1st metatarsal-phalangeal joint of his right foot.  The pain in his right big toe was the cause of the limitation for full squatting;
(f)	the Plaintiff had recovered well from the fracture of the proximal phalanx of his left 4th toe, and from the injury of his left hip and abdomen;
(g)	the Plaintiff had to avoid excessive stress to his left knee (such as excessive body weight, stress in activities of daily living and at work such as squatting, climbing stairs and carrying heavy objects).  The Plaintiff cannot return to his pre-injury job as a manager of a bar restaurant as this involves a lot of walking including climbing of stairs within the restaurant;
(h)	for  the MTP joint of the Plaintiff’s big right toe, the treatment option for advanced degenerative arthritis can be replacement or fusion of the joint.  For his left knee, total joint replacement needs to be considered if the pain should become significant at some stage in future.  The chance of requiring surgery to his left knee was about 30% and that to his right big toe at about 50% in about 10 to 15 years of time;
(i)	the Plaintiff suffered a combined total of 9% permanent impairment of the whole person.

9. Dr. Arthur Chiang for the Defence examined the Plaintiff on 20 August, 2003.  He was of the view that fracture of the medical tibial plateau is an intra-articular fracture.  Generally, if there was inadequate fracture reduction at the articular surface, joint incongruity would be present.  That would give vise to post-traumatic degenerative arthritics.  Dr. Chiang formed the view that the depression in the articular surface of the lateral tibial plateau was mild and was still compatible with a reasonable alignment.  X-ray shown no obvious evidence of early charges of post-traumatic arthritics.  Dr. Chiang estimated the chance of developing this at about 10% to 20%.  He did not agree that there was malunion as opined by Dr. Lau.

10. Since the overall alignment of the medical tibial plateau fracture could still be considered as reasonably satisfactory, Dr. Chiang estimated the chance of total knee replacement at 10%.  He was of the view that physiotherapy could be useful to strengthen the quadriceps and the hamstrings and thereby improving the muscle bulk of the left thigh.

11. Dr. Chiang observed that, in respect of the right big toe, there was a mild decrease in the end range of dorsiflexion.  There was also mild narrowing of the joint space of the right 1st metatarso-phalangeal joint.  However, it was difficult to predict the future progress in this joint.  Nevertheless, Dr. Chiang accepted that fusion operation as suggested by Dr. Lau could be useful if more pain developed.  Nevertheless, he did not accepted joint replacement as the preferred treatment.

12. Dr. Chiang found that the Plaintiff suffered from total impairment of the whole person at 8%.  He was also of the view that the Plaintiff should be able to return to the pre-injury job after the removal of the implants and after the suggested course of physiotherapy treatment.

13. Prior to the accident, the Plaintiff worked as manager at a bar known as Murphy’s Irish Pub.  He had to be on his feet almost all the time and his duties included closing and opening the bar; dealing with suppliers; lifting kegs of beer in excess of 30 litres; climbing up and down stairs from his office to the bar; climbing up and downstairs from the cellar to the bar; stocking up on drinks at the bar and serving customers and being continually on his feet.

14. The Plaintiff was the only witness.  He confirmed the contents of his witness statement.  He told the Court that in order to mitigate his loss, he started to work as a manager at the bar known as Whisky Priest.  He only worked there for a short period of time from 22 February 2002 to 31 March 2002 because he could not cope with the job.  As can see from the payroll advices produced, the monthly salary of the Plaintiff was $20,000 while he was working for Murphy’s Irish Pub.  The Plaintiff told the Court that he also received tips from $1,000 to $4,000 each month depending on the business of the bar.  The Defence objected to take tips into account as it was not mentioned in the Revised Statement of Damages.  Mr. Wong, Counsel for the Plaintiff, informed the Court that they would stick to the figures as stated in the Revised Statement of Damages, i.e. $20,938.86 as the Plaintiff’s monthly salary.  It is the average of the Plaintiff’s earnings for the period from 1 April 2000 to 25 November 2001.  It should be noted that the Plaintiff worked for a bar called Delaney’s up till June 2001 and thereafter at Murphy’s Irish Pub.  In deed, from the payroll advices produced, we can see that the earnings of the Plaintiff included tips and management bonus.  For example, Delaney’s payroll dated 3 August 2000, 1 November 2000, 8 February 2001 (bonus paid); Murphy’s pay roll dated 10 November 2001 (credit card tips paid).

15.  The Plaintiff only produced 3 payroll advice issued by Murphy’s Irish Pub.  Only one of them (10 November 2001) shown the payment of credit card tips at $169.  Apart from the oral evidence of the Plaintiff, there is no other documentary evidence to support the Plaintiff’s version.  However, I accepted the Plaintiff’s oral evidence and I found that the Plaintiff did receive tips at the range of $1,000 to $4,000 per month.  Since the Plaintiff relied upon the figure as pleaded, I found that the monthly salary of the Plaintiff was $20,938.86 before the accident.

16.  After leaving Whisky Priest, the Plaintiff joined a motorbike shop and earned a salary of $15,000 per month. In around February 2004, the Plaintiff started his own business. While the Plaintiff did not make much out of this new business, he accepted that for the purpose of this hearing, his current income should be calculated at $15,000 per month.

Pain, Suffering and Loss of Amenities

17. This head was agreed at $360,000.00.

Loss of Pre-trial earnings

18. The Defendant disputed the Plaintiff’s entitlement under this head.  The Defendant’s submission was that the Plaintiff would have returned to his previous job as a bar manager but it was the Defendant’s own choice in working in the motorbike business after the accident.  The Defendant relied on the medical opinion of Dr. Chiang to support his contention.  Apart from that, the Defendant also relied on certain surveillance video tapes taken on divers occasions between (a) 20 August 2003 to 26 August 2003; (b) 15 May 2004 to 20 May 2004 and (c) 23 November 2004 to 26 November 2004.  Mr. Lim, Counsel for the Defendant submitted that these tapes showed the Plaintiff walking with a normal gait and relatively long distances.

19. It should be noted that Dr. Lau’s report was based on an examination on 9 April 2003 while Dr. Chiang’s examination took place on 20 August 2003.  No updated report was prepared though there was a lapse of more than 1 year before the assessment took place.

20. When the Plaintiff gave evidence, he maintained his complaints as set out at page 4 of Dr. Chiang’s report.  Nevertheless, there were some improvements in relation to his left knee:

(a)	He can walk for 45 minutes to 1 hour without pain (item 3 under “Left Knee” of the report; previously there was pain after walking for about 30 minutes).
(b)	His left knee may became tired and painful when he stands up after prolonged sitting for 60 to 75 minutes (item 4 under “Left Knee” of the report; previously, it was 45 minutes).
(c)	He can push his own motor cycle without or with less pain at his knee (item 7 under “Left Knee” of the report; previously the Plaintiff felt painful).

21. There was nothing, part from the surveillance tapes, from the Defence to contradict the Plaintiff’s evidence as set out hereinabove.

22. The Defendant argued that the Court should accept the evidence of Dr. Chiang instead of Dr. Lau.  Four main reasons were advanced.

(a)	Dr. Chiang used X-ray to demonstrate that there was only a mild depression in the articular surface of the lateral tibial plateau and there was satisfactory alignment;
(b)	muscle wasting was consistent with residual symptoms from the screw heads of the implants and thus it did not support Dr. Lau’s conclusion that there was malunion;
(c)	full range of movement of the left knee was inconsistent with there being malunion; and
(d)	the Plaintiff can walk with a normal gait.

23. Both Dr. Lau and Dr. Chiang had used X-ray to examine the Plaintiff’s left knee.  Dr. Lau regarded the residual irregularity as “malunion” while Dr. Chiang was of the view that there was “a mild depression”. It is obvious that both doctors noted the same problem of the Plaintiff’s left knee. In my judgment, the only difference was using different terms to describe the situation.  In any event, Dr. Chiang did not say that the “mild depression” was not the cause of the knee pain suffered by the Plaintiff.  Further, while muscle wasting was consistent with residual symptoms from the screw heads of the implants, Dr. Chiang did not exclude the possibility that such wasting was contributed by the pain caused by “malunion” or “mild depression”.

24. Both doctors noted the full range of movement of the Plaintiff’s left knee but none of them had made any comment supporting the submission of the Defendant as stated hereinabove.

25. It was not the Plaintiff’s case that he could not walk with a normal gait that prevented him from returning to his previous job.  Indeed, Dr. Lau observed that the Plaintiff walked normally in his report.  Walking with a normal gait itself, did not negative the genuiness of the Plaintiff’s complaints.

26. Dr. Chiang commented that physiotherapy could help to strengthen the muscle bulk of the left thigh.  It however could not help to remove the pain at the left knee.

27. For the reasons aforesaid, I accepted the view of Dr. Lau and found that the Plaintiff was not capable of returning to his previous job as a bar manager. The Plaintiff’s loss of earnings from 1 January 2002 to 30 November 2004 is $20,938.86 x 35 months = $732,860.10.  From this figure, we must deduct what the Plaintiff had actually earned:

(a)	22 February 2002 to 31 March 2002 (Whisky Priest)	$25,232.00
(b)	April 2002 to March 2003	$182,836.00
(c)	April 2003 to November 2004 at $15,000/month for 20 months	$300,000.00
		$508,068.00

28. The total award under this head is $224,792 (732,860.10 - $508,068.00).

Future loss of earnings

29. The Plaintiff suffered from a partial loss of monthly earnings at the rate of $5,938.86.  The Plaintiff submitted that a multiplier of 15 is appropriate.  The Defendant submitted that a multiplier of 11 or 12 is reasonable.

30. Mr. Lim had referred the Court to the following authorities:

(a)	Tse Yin Cheong [1986] HKLY 423.  The Plaintiff was 35 years old at the time of accident and 38 at trial.  Multiplier was 13.
(b)	Chun Sung Yong [1991] HKLY 425.  The Plaintiff was 35 years old at the time of accident and 39 at trial.  Multiplier was 12.
(c)	Cheung Sau Chun [1987] HKLY 417.  The Plaintiff was 35 at the time of accident.  Multiplier of 13 was adopted.

31. When considering the multiplier, I have also considered the more recent authorities:

(a)	Limbu Muni Parsad v Hyundai Engineering and Construction Ltd, HCPI No. 1167 of 2003, 19 August 2004.  The Plaintiff was 37 at the time of the accident and 40 at the date of trial.  He was a hacker and a multiplier of 12 was adopted.
(b)	Lam Cheuk Leung v Evawan Co Ltd [2004] 1 HKLRD 778.  The Plaintiff was 38 at the time of accident and 43 at the time of trial.  The Plaintiff was a cement worker and a multiplier of 11 was adopted.
(c)	Fung Kwok Ki v Wing Sang Construction Co Ltd [2003] 3 HKLRD 201.  The Plaintiff was 38 at the time of accident and was 41 at the date of trial.  The Plaintiff was a lift technician and a multiplier of 12 was adopted.
(d)	Cheung Koon Wah v Leung Ka Hang, HCPI No. 76 of 2002, 30 November 2002.  The Plaintiff was a sailor.  He was 35 at the date of accident and 38 at the date of trial.  A multiplier of 13 was adopted.

32. I am of the view that a multiplier of 13 is a reasonable one in this case.  The loss of earnings under this head is $5,938.86 x 12 x 13 = $926,462.  MPF is $5,000 x 12 x 13 x 5% = $39,000 (tips is not covered by MPF).  The total is therefore $965,462.16.

33. MPF for the pre-trial period is as follows:

(a)	January 2002 and February 2002 ($20,000 x 5% x 2)	$2,000
(b)	For the period while the Plaintiff worked for the Whisky Priest, he earned $25,232 and thus the average monthly income was not less than $20,000. Therefore, there was no loss of MPF.
(c)	April 2002 to November 2004 ($20,000 - $15,000) x 5% x 31	$7,750
		$9,750

Tax Liability

34. For the year 2002 to 2003, the Plaintiff earned a total of $182,836.  The tax payable was $3,730.  If he had been a bar manager, he could have earned $20,938.86 x 12 = $251,266.32.  The taxable income is $251,266.32 - $108,000.00 (basic allowance) = $143,270.00 (rounded up).  The tax liability is $35,000 x 2% + $35,000 x 7% + $35,000 x 12% + $38,270 x 17% = $700 + $2,450 + $4,200 + $6,500 = $13,850.  Thus a sum of $10,120 ($13,850 - $3,730) should be deducted for the year 2002 to 2003 to reflect tax liability.

35. For the year 2003 to 2004, the income of the Plaintiff should be $15,000 x 12 = $180,000.  The chargable income is $180,000 - $104,000 = $76,000.  Tax payable is $32,500 x 2% + $32,500 x 7.5% + $11,000 x 13% = $650 + $2,437.50 + $1,430 = $4,517.50.  He would have earned $251,266.32 if he worked as a bar manager.  The tax liability is $32,500 x 2% + $32,500 x 7.5% + $32,500 x 13% + $45,770 x 18.5% = $650 + $2,437.50 + $4,225 + $8,467.45 = $15,780.  Thus a sum of $11,262 ($15,780 - $4,517.50) should be deducted to reflect the tax liability.

36. For the year 2004 to 2005 (and for those years thereafter), the income of the Plaintiff should be $15,000 x 12 = $180,000.  The chargable income is $180,000 - $100,000 = $80,000.  The tax liability is $30,000 x 2% + $30,000 x 8% + $20,000 x 14% = $600 + $2,400 + $2,800 = $5,800.  As a bar manager, the Plaintiff would have to pay more: $30,000 x 2% + $30,000 x 8% + $30,000 x 14% + $53,270 x 20% = $600 + $2,400 + $4,200 + $10,654 = $17,854.  A sum of around $12,000 ($17,854 - $5,800) should be deducted to reflect this.

Loss of Earning Capacity

37. The Plaintiff claimed for $100,000 while the Defendant accepted $50,000 was reasonable.  I accepted the Defendant’s view and award $50,000 under this head.

Future Medical Expenses

38. The Plaintiff asked for $100,000 for replacement of knee.  Dr. Lau opined that there was a 30% chance that the Plaintiff required this operation.  Dr. Chiang opined that the risk was 10%.  Neither of them had clearly explained to the Court how they come to their figures.  In the absence of clear evidence, I made no award for that.

39. The Plaintiff also claimed for expenses for fusion of the MTP joint of big toe and replacement of the MTP joint of big toe at $18,000 and $30,000 respectively.  During the hearing, Mr. Wong accepted that there was duplication and the Plaintiff can only claim either one of them.  The Defendant accepted fusion was reasonable.  I made an award of $18,000 for fusion of the MTP joint.

Special Damages

40. The Plaintiff claimed $40,626 under this head.  The Defendant did not dispute that and I made an award of $40,626 accordingly.

The Award

41. In summary, the award is as follows:

(a)	PSLA		$360,000
(b)	Loss of pre-trial earnings		$224,792
(c)	Loss of future earnings		$926,462
(d)	Loss of MPF entitlement		$48,750
(e)	Loss of earning capacity		$50,000
(f)	Future medical expenses		$18,000
(g)	Other special damages		$40,626
Less Tax Liability
	(h)	2002 – 2003	($10,120)
	(i)	2003 – 2004	($11,262)
	(j)	2004 – 2005 and onwards for 14 tears	($168,000)
			$1,479,248

Interest

42.. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

43. I further make an order nisi that the costs of this assessment be paid by the Defendant to the Plaintiff to be taxed if not agreed.  Certificate to Counsel. The Plaintiff’s own costs be taxed in accordance to the Legal Aid Regulations should the Plaintiff be on legal aid. This order will become absolute 14 days after the handing down of this judgment unless there is application to the otherwise within such period.