LAU KOON LOI v. WONG WAI SING AND ANOTHER

HCPI 445/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 445 OF 2007

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BETWEEN

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  The plaintiff’s claim is for damages for personal injuries suffered by him in a traffic accident which happened on 15 July 2004 in the course of his employment with the 2^nd defendant as an aircraft tractor driver when the offside front of the vehicle which the plaintiff was driving within the restricted area of the airport was collided into by another vehicle driven by the 1^st defendant, another driver also employed by the 2^nd defendant, which was rounding a mild curve and partially crossed onto the opposite lane in which the 1^st plaintiff’s vehicle was travelling.

2.  Interlocutory judgment on the issue of liability was entered on 22 May 2008 against both defendants with damages to be assessed.

3.  This is the assessment of damages.

PLAINTIFF’S WORKING BACKGROUND

4.  The plaintiff was born on 5 March 1959 and was aged 44 at the time of the accident. He is now 52 at the time of this assessment.

5.  After his schooling which was to secondary level, the plaintiff had joined the British Army in 1980 as a driver of heavy army trucks.  In 1997 when the British Army left Hong Kong, the plaintiff worked part time as a PLB driver.  In May 1998 he joined the 2^nd defendant working as a tractor driver mainly towing aircrafts.

6.  It can therefore be seen that the plaintiff’s training and working experience has been substantially in driving, in particular the driving of heavy vehicles.

INJURIES AND TREATMENT

7.  After the accident to the plaintiff, ambulance was called to take the plaintiff to hospital.  From the records of the ambulance paramedics, the only complaint of the plaintiff was that he felt pain in his right lower leg in the lower ¾ shaft area.

8.  The plaintiff was then taken to the Accident and Emergency Department (“A&E Dept.”) Princess Margaret Hospital (“PMH”) where he was diagnosed to have suffered head injuries and some mild swelling on over his right leg.  X-ray of the skull, right knee and right leg revealed no fracture.  The plaintiff was then discharged from the A&E Dept. of PMH without follow up but was given four days of sick leave.

9.  After discharge from PMH, the plaintiff’s neck and shoulder pain persisted for which he consulted private doctors.

10.  On 18July 2004, the plaintiff first consulted Dr Yan Kam Sun (“Dr Yan”), a panel doctor of the plaintiff’s employer, the 2^nd defendant. The plaintiff complained to Dr Yan of neck stiffness, neck and shoulder movement restricted due to pain, chest pain, right knee pain, pain when breathing and post-concussional headache and dizziness.  Sick leave was given to the plaintiff for two periods of three days each cumulatively from 18 July to 23 July 2004.

11.  The plaintiff was then referred by Dr Yan to an orthopaedic specialist, Dr Leung Yum Kwong (“Dr Leung”)on 23 July 2004.  To Dr Leung, the plaintiff complained of neck stiffness with tenderness of the left trapezius and sternomastoid muscle upon tilting to the left, tenderness along the lower cervical spine, pain and numbness and reduced grip power in the left hand.

12.  Dr Leung called for an MRI study on the cervical spine of the plaintiff on 29 December 2004.  From that MRI study, it was seen that there was disc protrusion at C5/6 level causing slight narrowing of the spinal canal and slight indentation on the anterior surface of the cervical cord.  Degenerative changes were also identified at C5/6 junction endplates.

13.  Dr Leung diagnosed the plaintiff as suffering from neck sprain resulting in brachial plexus injury.  Dr Leung assessed the plaintiff to be incapable of driving for “several months” on account of his inability to turn the neck and weakness in his left hand.

14.  The plaintiff continued to consult Dr Leung on an almost weekly basis until 24 May 2006 and sick leave certificates (usually for seven days at a time) were issued by Dr Leung on each visit of the plaintiff with the sick leave running cumulatively from 23 July 2004 to 31 May 2006.

15.  During this period of his sick leave, the plaintiff became worried and depressed fearing he would be unable to return to his pre-accident work.

16.  In March 2005, the plaintiff started to experience problems of erectile dysfunction which had caused him further stress in his relationship with his wife.  The plaintiff then consulted a urologist Dr Ho Yiu Cheung (“Dr Ho”) for that problem.

17.  On 26 May 2006 the plaintiff attended for the first time the out-patient clinic of the Department of Orthopaedics & Traumatology of the Tuen Mun Hospital (“TMOPC”).  There he complained of neck and left shoulder pain.  He was given follow-up treatment and also referred to physiotherapy and occupational therapy. He last attended TMOPC on 9 October 2006.

18.  The plaintiff started physiotherapy at the Pok Oi Hospital on 29 June 2006 and received in all 12 sessions of treatment there, the last of which concluded on 18 October 2006.

19.  For occupational therapy, the plaintiff underwent a work capacity training programme from 18 July 2006 until 9 October 2006 comprising 11 sessions. In work assessment, the plaintiff could manipulate simulated steering wheel for about 40 minutes with complaint of neck fatigue and discomfort and neck stretching pain in neck movement.

THE MRI EVIDENCE

20.  The plaintiff underwent Magnetic Resonance Imaging (“MRI”) investigation of his cervical spine on 29 December 2004 upon the referral of Dr Leung.

21.  That MRI findings showed :

(i)   A disc protrusion at only the C5/6 level.  It was a postero-central protrusion measuring about 3 mm which caused a slight narrowing of the spinal canal and a slight compression of the anterior aspect of the cervical cord at C5/6 level;

(ii)   some degenerative marrow signal changes at the C5/6 end-plates; and

(iii)   no other abnormality.

22.  On 17 October 2007, the plaintiff’s neurosurgical expert, Dr Clarence Leung, referred the plaintiff for a second MRI investigation of his cervical spine.  This second MRI findings showed multiple intervertebral disc protrusion at four levels of the cervical spine and one level of the thoracic spine as follows :

(i)   C3/4 level : posterior and right postero-lateral disc protrusion;

(ii)   C4/5 level : posterior disc protrusion;

(iii)   C5/6 level : (1) posterior and postero-lateral disc protrusion associated with small adjacent osteophytes and minimally indenting on the anterior surface of the spinal cord;  (2) slight anterior disc heniation; (3) slight degenerative marrow changes and endplates irregularity;

(iv)   C6/7 level : bulging disc; and

(v)   T1/2 level : bulging disc.

23.  The MRI findings also showed loss of normal cervical lordosis.

THE EXPERT EVIDENCE

(A)   Orthopaedic Experts

24.  The plaintiff was examined by his own orthopaedic expert, Dr Danny Tsoi (“Dr Tsoi”), on 5 March 2007 and Dr Tsoi’s report is dated 7 March 2007.

25.  In that report, Dr Tsoi stated the plaintiff’s complaint to be continuous neck pain radiating to the right shoulder and to the right forearm causing numbness to the forearm when he lifted heavy objects.  The neck pain was aggravated by coughing and stress which can cause the pain to radiate up the back of the head.  Sleeping on a flat pillow can also trigger the pain.

26.  During the interview, Dr Tsoi noted that the plaintiff had natural head and neck movements and sat comfortably throughout without difficulty in changing posture.

27.  Examination of the plaintiff’s neck revealed normal alignment, preserved lordosis and no spasm of the right paraspinal muscles.

28.  The plaintiff did complain of tenderness over the C5 and C6 level as well as tenderness over the right paraspinal muscles.  There was a limitation in the range of motion of the neck in all directions.

29.  Examination of the upper limbs on both sides revealed normal muscle tone and normal muscle power, full range of motion of both shoulders with strength preserved, all reflexes preserved and no sensory deficit.

30.  X-rays taken of the cervical spine showed mild degenerative changes at C5-6 level.

31.  Dr Tsoi diagnosed the plaintiff to have suffered a sprained neck in the accident.  Dr Tsoi further opined that the protruded C5/6 disc could be related to the accident given that the plaintiff had no pre-existing neck problem and that could explain the plaintiff’s symptoms of persistent neck pain since the accident.

32.  Dr Tsoi further opined that the plaintiff has reached a state of maximal medical improvement and will not benefit by further treatment.

33.  As for work capacity, Dr Tsoi says that the plaintiff is less fit to resume his pre-accident job which required him to drive tractors continuously for up to eight hours, but that jobs with less head and neck activities are more suitable for him including driving PLB but with shorter routes enabling him to take rests of five to 10 minutes after driving for an hour.

34.  The plaintiff was also examined by the defendant’s orthopaedic expert, Dr William Yuen (“Dr Yuen”), on two occasions, 29 July 2005 and again on 9 January 2008.  Dr Yuen gave two reports dated 30 July 2005 and 16 February 2008.

35.  In his first report, Dr Yuen recorded that the plaintiff told him that after the accident, after the plaintiff returned home, he began to feel neck pain which persisted for the next few days with stiffness and pain in both shoulders.

36.  Dr Yuen recorded the plaintiff’s complaints to be residual neck pain, weakness and numbness in his left upper extremity.

37.  Examination carried out by Dr Yuen showed the plaintiff to have a stiff neck and difficulty looking over his left shoulder.  All movements of the cervical spine were reduced and produced pain.  There was muscle spasm in both trapezius but shoulder movement was not affected.  There was subjective numbness in his entire left upper extremity but no motor deficit was noted.  All peripheral tendon jerks were present and normal.

38.  Dr Yuen opined that the plaintiff had suffered a whiplash injury and noted that the plaintiff expressed thinking that he could not go back to his pre-accident job.

39.  In his second report, Dr Yuen recorded the plaintiff’s complaint to be residual on and off neck pain when the neck was kept still or in extreme extension or flexion.  There was also residual on and off pain in the right trapezius but not in the shoulder joint. There was also occasional numbness in the right arm and forearm especially at night and occasional headache.

40.  Examination of the plaintiff’s neck showed no muscle spasm and he found no muscle wasting in the upper limbs.

41.  Dr Yuen compared the Opus films (taken on 29 December 2004) and report with the Axon films (taken on 17 October 2007) and report and found that there had been no deterioration between the time the two were taken.

42.  Dr Yuen agreed with the findings of the Opus radiologist that the only significant disc herniation was confined to the C5/6 disc and that the other disc herniation at other levels noted by the Axon radiologist, if existed, were very minimal and insignificant.

43.  As to causation of the disc protrusions in the plaintiff’s cervical spine, Dr Yuen opined that they were caused by degenerative changes and not by the accident.  The reason given by Dr Yuen was that the disc protrusions in the plaintiff’s cervical spine shown in the Opus films take many years to develop and could not have been caused by the accident which happened only five months before the Opus MRI was done.

44.  As to whether the symptoms complained of by the plaintiff could be explained, Dr Yuen opined that :

(i)   the initial complaint of neck pain and related trapezius pain was attributable to the soft tissue muscle sprain injury and its aggravating interaction with the pre-existing degenerative changes in the plaintiff’s cervical spine;

(ii)   the soft tissue muscle sprain injury should have recovered within one year and could not be the cause of the plaintiff’s alleged persistent pain in his neck and trapezius;

(iii)   the mild disc protrusions seen in the plaintiff’s cervical spine could not be the cause of the plaintiff’s alleged persistent pain in his neck and trapezius; and

(iv)   there are no clinical or radiological explanation for the plaintiff’s alleged persistent pain in his neck and trapezius.

(B)   Neurosurgical experts

45.  Dr Clarence Leung (“Dr Leung”), the neurosurgical expert for the plaintiff, and Dr Kan Yiu Ting (“Dr Kan”), the neurosurgical expert for the defendant, both examined the plaintiff on 3 September 2008 and prepared a joint expert report dated 24 February 2009.  There was also a joint supplementary report from both of them dated 9 November 2009.  Both reports were adduced into evidence without the necessity of calling Dr Leung and Dr Kan.

46.  In their joint report, the plaintiff’s complaints were stated to be episodic attacks of pain of a dull heavy nature with mild to moderate intensity at the back of the neck occurring every morning on rising and on retiring to bed at night which radiates to the right shoulder; feeling weak in the entire body; feeling depressed because he was out of work; feeling unable to return to work as a driver as the neck pain would prevent him from turning his head.

47.  On examination, both experts found the plaintiff to have a full and pain-free movement of the neck, no detectable muscle spasm in the neck, no muscle wasting and full motor power in all four limbs, symmetrical and normally brisk tendon reflexes, no impairment of any of the various modalities of sensation: touch, pain and joint proprioception.

48.  Upon observation, both experts found the plaintiff to be able to raise both lower limbs to a normal 90 degrees on the Straight Leg Raising test, walked with a normal gait, stood a normal stance and sat a normal posture.

49.  Both experts are agreed on the following :

(i)   the mild C5/6 disc protrusion is not significant enough to cause myelopathy or radiculopathy;

(ii)   the C5/6 protrusion was more likely to be the result of a pre-existing degenerative process.  However, if the plaintiff’s complaint of neck pain were true and his assertion that he had never had any neck pain prior to the accident were also true, then the impact from the trauma of the accident had most likely aggravated the degeneration and thereby triggered the neck pain;

(iii)   during the examination, witnessed by Dr Leung, Dr Kan preformed the basic clinical test of range of movement of the neck on the plaintiff throughout the full physiological extent and which showed a full and pain-free range of movement of the neck contrary to the plaintiff’s suggestion that he did experience pain and discomfort when his head was being moved by Dr Kan who continued to move it to the end of the full range despite the plaintiff’s protests;

(iv)   the neck pain, although it occurs daily, is of mild intensity, and most importantly, is not brought about or aggravated by head or neck motion;

(v)   the neck pain constitutes a 5% permanent impairment of the whole man;

(vi)   the plaintiff’s complaint of mood impairment has no direct anatomical basis;

(vii)   the mild neck pain should not prevent the plaintiff from working in most situations that are commensurate with his education, vocational background, including that of a professional driver with short breaks after driving for an hour or two;

(viii)   a fair period of sick leave was one year; and

(ix)   the plaintiff has no significant neurological findings and his condition of “Chronic Whiplash Syndrome” (i.e. symptoms lasting longer than six months post injury) is a very controversial subject: some regard it as a wholly fabricated condition whereas others regard it as a genuine affliction but the two experts were not prepared to enter into this debate.

50.  The only one issue on which the two experts are apart on is the deterioration.  Both of them do not recommend the plaintiff to undergo further treatment.  However, Dr Kan opined that it is highly unlikely the plaintiff will further deteriorate in the future whereas Dr Leung opined that the possibility of further deterioration could not be excluded.

(C)   Psychiatric expert

51.  Dr Chung See Yuen (“Dr Chung”) was appointed to be the single joint psychiatric expert for both parties by the court.  Dr Chung interviewed the plaintiff on 27 August 2009 and prepared an expert report dated 7 September 2009.

52.  Dr Chung opined that the plaintiff had suffered an adjustment disorder with symptoms of depressed mood, worries about physical symptoms, problems at work, financial difficulty, relationship problems with family members, pessimistic ideas, sexual problems, suicidal idea and sleep problem.

53.  Dr Chung explained that the adjustment disorder and its symptoms were understandable adverse psychological reaction to the stressors arising from the accident, its resultant physical symptoms and related work and financial problems encountered by the plaintiff.  However, by the time of his interview with the plaintiff in August 2009, the disorder was largely in remission and had stabilized.  The impairment levels caused by the mental problems were mild and compatible with most useful functioning.

54.  As for the plaintiff’s work capacity, Dr Chung stated that notwithstanding the adjustment disorder, after the plaintiff’s sick leave period, the plaintiff was able to resume work which his physical condition allowed him to and that he was mentally fit to return to his pre-accident job.

55.  Dr Chung recommended a course of 10 one hourly sessions of psychological treatment by a clinical psychologist to be of benefit to the plaintiff, with the first six sessions spaced two weeks apart and the last four sessions spaced at monthly intervals.

(D)   Urological expert

56.  The plaintiff had commissioned a medical report from Dr George Koo (“Dr Koo”), a urologist, who opined that the erectile dysfunction of the plaintiff was the result of the accident.  During the interlocutory stages of case management of this matter by the P.I. Judge, the defendant by counsel admitted that the erectile dysfunction was the result of psychological effects of the accident.  In the light of that admission by the defendant, the P.I. Judge refused leave to admit Dr Koo’s report.

57.  That admission by the defendant will need to be taken into consideration in the assessment notwithstanding that the medical report of Dr Koo was not admitted into evidence.

PAIN SUFFERING AND LOSS OF AMENITIES

58.  The plaintiff submits that the award for PSLA should, given the circumstances of the injuries and the time taken, be at $400,000.  In support of that amount being reasonable in the present case, the plaintiff seek to rely on the following cases in which similar amounts had been awarded for PSLA involving injuries similar to the present case :

(a)   Boivin v Wong King Yin & Another (HCPI 195/2000) where $475,000 was awarded for PSLA in 2001 in respect of the plaintiff sustaining a severe whiplash injury followed by neck and back pain, limitation of neck movement and headaches, numbness in two fingers of her left hand and pain radiating down her left leg from the buttock region with a possible need for future surgery to fuse two cervical vertebrae.  Moreover, the plaintiff suffered post traumatic stress disorder and depression which arose from the pain and affected her work and personal social life; and

(b)   Luk Yee Lam v Orasa Livasiri (HCPI 394/2002) in which the plaintiff suffered an extension-flexion injury of the neck with a disc herniation at C5/6 level which resulted in neck and back pain with numbness and weakness in the upper limbs and hands and his right leg.  The plaintiff also suffered reduced sexual desire.  An award of $400,000 was awarded in 2003 for PSLA;

59.  The plaintiff further submits that amount of the above awards made in 2001 and 2003 were outdated and that in the case of Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture (CACV3/2002) Rogers VP in his judgment in September 2002 had implicitly accepted that the bottom of the Serious Injury category to be $460,000 since in both the cases of Boivin and Luk Yee Lam, the courts expressly stated that both those cases fell within the bottom of the Serious Injury category and those awards were made on that basis.

60.  On the other hand, the defendant submitted that the award for PSLA should range from $200,000 to $250,000 only.

61.  The basis for that submission by the defendant is the reliance upon the opinion given by Dr Yuen, the defendant’s orthopaedic expert, that the degenerative changes in the plaintiff’s cervical spine including the protrusion of the C5/6 intervertebral disc were pre-existing and not caused by the accident (para.43 of defendant’s final submission refers).

62.  The defendant also relies on previous awards for PSLA made in the following cases :

(a)   Chan So Kwan v Mak Siu Kwan (HCPI 1487/2000) where $300,000 was awarded for PSLA in respect of a whiplash injury which resulted in some persistent neck pain, limitation in neck movement and occasional spasm of the neck muscle and with anxiety disorder, all of which prevented the plaintiff from returning to her pre-accident work;

(b)   Tang Wai Tak v Chiu Hing Contstruction & Transportation Co. Ltd (HCPI 188/2006) where $150,000 was assessed for PSLA in respect of a whiplash injury which left the plaintiff’s with persistent on and off neck pain. There the same master who had made the award in Chan So Kwan’s case commented that the award in Chan So Kwan was due to her serious psychiatric condition; and

(c)   Tsoi Wing Tak v Lau Sze Ni (HCPI 926/2005) where the plaintiff sustained a whiplash injury and had to wear a neck brace for six months.  Initially her neck was stiff and range of motion restricted, but subsequently the neck pain improved leaving only some residual pain.  There $180,000 was awarded for PSLA.

63.  Dealing first with the question of causation, Dr Yuen was quite adamant that the disc protrusion was caused by the degenerative changes to the cervical spine and not caused by the accident.  The reason given by Dr Yuen for so saying was that the degenerative changes causing the disc protrusion would have taken a long time to develop, but that the MRI which showed such degenerative changes was only taken 5 months after the accident.

64.  However, Dr Yuen went on to state in his report that the initial complaint of the plaintiff of neck and shoulder pain was attributable to the soft tissue muscle sprain injury and its aggravating interaction with the pre-existing degenerative changes in the plaintiff’s cervical spine (emphasis added).

65.  This brings to mind the warning aptly given by Hunter JA in the case of Ocean Tamping Co. Ltd v Lee Kin Kai [1991] 2 HKLR 232 where the learned judge said at page 235 :

“First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. Secondly, it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. The doctors’ practice, what is known as the science of aetiology. In the words of one in particular, they look for ‘clinical cause’, proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v National Coal Board [1973] 1 WLR 1 at p. 10 ‘an irrefragable chain of causation’.”

66.  Having accepted that the initial neck and shoulder pain complained of by the plaintiff was due to the soft tissue muscle sprain injury (caused by the accident) and its aggravating interaction with the pre-existing degenerative changes in the plaintiff’s cervical spine, Dr Yuen then appears to draw a line between the soft tissue muscle sprain injury which, in his opinion, should have recovered within one year and the disc protrusion which is caused by the degenerative changes, not the accident, to say that therefore there are no clinical or radiological explanation for the plaintiff’s alleged persistent pain in his neck and shoulders.

67.  On the other hand, Dr Tsoi’s opinion was that the protruded disc at C5/6 could be related to the accident since the plaintiff had no pre-existing neck pain before the accident and that could explain the plaintiff’s complaint of persistent neck and shoulder pain.

68.  I have no difficulty accepting the opinion of Dr Tsoi and rejecting that part of Dr Yuen’s evidence that the protruded disc was not caused by the accident but by the degenerative changes.

69.  That opinion of Dr Tsoi is supported by the opinion expressed by the neurologist experts who stated that if the plaintiff’s complaint of neck pain were true and his assertion that he had never had any neck pain prior to the accident were also true, then the impact from the trauma of the accident had most likely aggravated the degeneration and thereby triggered the neck pain.

70.  I find on the opinion of Dr Tsoi and for the reason given by Dr Tsoi that the protruded disc at C5/6 level was caused by a combination of the degenerative changes to the cervical spine but which was aggravated by the soft tissue muscle sprain when the accident happened.  I further accept the opinion of Dr Tsoi that the protruded disc at C5/6 level was the reason for the persistent neck and shoulder pain of the plaintiff.

71.  On the evidence of the plaintiff and also from the witness called by the 2^nd defendant, Ms Wong Kwan Ying (“Ms Wong”), it is common ground that the plaintiff was still having some residual neck pain after his sick leave period and when he returned to work for the defendant for the period from November 2006 until April 2007. It was the evidence of Ms Wong that during that period whenever she asked the plaintiff his condition, the plaintiff told her that he felt stiff in the neck and was not able to turn it.

72.  It was also the plaintiff’s own evidence, which I accept, that even to date, he would occasionally, usually at night, have to still rely on painkillers to ease the pain in his neck, although such occasions were not as often as previously.

73.  The fact that the plaintiff was still suffering residual pain though only occasionally, after the sick leave period, and even today, almost seven years after the accident, and the fact that the plaintiff had suffered adjustment disorder as well as the erectile dysfunction admitted by the defendants would put the plaintiff’s case just below the lower end of the serious injury category.

74.  Accordingly, I assess the award for PSLA to be $400,000 as claimed.

PRE-TRIAL LOSS OF EARNINGS

75.  Sick leave was granted to the plaintiff up to 31 October 2006 (i.e. 27½ months of sick leave).  The plaintiff returned to work with the 2^nd defendant from 2 November 2006 but was given only desk duties on a part-time basis and paid accordingly.  The defendant terminated the plaintiff’s employment in April 2007.

76.  There is a factual dispute as to the reason for the termination of the plaintiff’s employment by the 2^nd defendant.

77.  It is the plaintiff’s case that he enjoyed his driving work, in particular with heavy vehicles, and which was the only work that he really knew how to do well.  It is the plaintiff’s evidence that he did ask to resume his pre-accident duties when he returned to work for the defendant in November 2006.  However, according to the plaintiff, he was not given that chance by the 2^nd defendant but was only given desk duties.  Suddenly, in April 2007 he was terminated by the 2^nd defendant from all employment with them.

78.  On the other hand, it is the case of the 2^nd defendant that had the plaintiff not exaggerated his disabilities and symptoms, but at the end of the reasonable 12 months sick leave period returned to the 2^nd defendant and told them that he was well and fine but still had only some occasional mild neck pain, the plaintiff would have been given his old job back and his loss of earnings would not have exceeded the 12 months reasonable period of sick leave.

79.  In this respect it was also the evidence of Ms Wong that during the time the plaintiff returned to work in November 2006 until April 2007, the plaintiff did complain of neck pain and stiffness to Ms Wong and which was such that the plaintiff could not turn his head.  Ms Wong also said that she had discussed that condition of the plaintiff with the head of the General Services Department who was of the opinion that the plaintiff was therefore not fit to resume his pre-accident work because it would be dangerous for the plaintiff to operate a tractor in the airport if he could not turn his head.

80.  As a result the plaintiff was kept in the office doing clerical work, but after six months such arrangement was considered ineffective by the 2^nd defendant and the plaintiff’s employment was terminated after April 2007.

81.  In cross-examination Ms Wong was asked whether the plaintiff, when he returned to work for the 2^nd defendant, was given the chance to drive a tractor to evaluate his performance.  Ms Wong answered that the plaintiff was not so evaluated giving the initial excuse for not doing so being that tractors in the airport cannot be driven outside the apron area.  But when further cross examined as to whether such a performance evaluation could be arranged, Ms Wong had to concede that it was not impossible to make such arrangement but added that that was not done because the plaintiff did not request to resume his job as a tractor driver.

82.  When further questioned as to why Ms Wong had only discussed with the head of General Services Department the condition of the plaintiff without including the plaintiff in that discussion, Ms Wong said that the head of the General Services Department was an expert in that area and she treated his judgment in that regard.  She also added that since the plaintiff had left his job of driving a tractor for some three years, he was no longer skilled anymore and that his duties had been taken over by others.

83.  In this respect, I also take note of the fact that when the plaintiff was being cross-examined, it was suggested to him by counsel for the defendants that after a driver has had an accident or illness, the 2^nd defendant would put that driver in training under supervision for a period of time before they would let him resume his normal driving work.

84.  However, in the plaintiff’s case this was not done.

85.  From the evidence given in this case, I have no hesitation in rejecting the evidence of Ms Wong that the plaintiff did not request to return to his pre-accident driving job.  After his sick leave expired, when the plaintiff returned to work, he was assigned desk work and clerical duties in the office.  That could not have been the plaintiff’s own doing, but rather the decision of the 2^nd defendant. Moreover, the plaintiff was not paid his pre-accident salary but a lower salary in accordance with clerical duties.

86.  No real attempt was made by the 2^nd defendant to evaluate if the plaintiff was fit to return to his pre-accident work as a driver.

87.  The only reasonable conclusion which I can come to is that when the plaintiff returned to work with the 2^nd defendant, his position as a driver has already been filled by others and that the assigning of clerical duties and desk work to the plaintiff was mere cosmetics by the 2^nd defendant for the period of six months before the plaintiff was terminated. 

88.  I find that the 2^nd defendant had no intention of reinstating the plaintiff back to his pre-accident work as a driver, irrespective of whether the plaintiff was fit for that work or not.

89.  On the basis of that finding above, and on the basis that there is no indication that but for the accident, the plaintiff would likely have continued working with the 2^nd defendant as a tractor driver until normal retirement, I shall assess pre-trial loss of earnings on such basis.

90.  Furthermore, I have no difficulty accepting the opinion expressed by Dr Tsoi that due to the injury and resultant disability to the plaintiff, he is less fit to resume his pre-accident job.  In this respect, it must follow that I reject the opinion expressed by Dr Yuen to the effect that the plaintiff could have resumed his pre-accident job after one year of sick leave.

91.  As for the opinion expressed by the neurology experts and the psychiatric joint expert as to the plaintiff’s work capacity, those opinion were given relative to the field of expertise of those experts.

92.  The real injury to plaintiff is a whiplash injury to his neck and which has resulted in some disability in the form of pain to his neck and shoulders.  Both the injury and its resultant disability is therefore orthopaedic in nature and it is therefore the opinion of Dr Tsoi which matters in this case.

93.  Factually speaking, after the plaintiff’s employment with the 2^nd defendant was terminated at the end of April 2007, the plaintiff registered with the Labour Department to apply for a number of driving jobs, with Customs Department, ICAC, KCRC as a shuttle bus driver, and also as a government chauffeur.  Unfortunately he was unsuccessful in all those attempts.  The plaintiff also failed to obtain work as a PLB driver.

94.  Eventually, the plaintiff found work as a Building Superintendent in a block of buildings in Kingswood Villa in Tin Shui Wai but only worked there from October 2007 until February 2008 due to the fact that his neck and shoulder pain did not allow him to cope with the demands of walking for long hours required by that work.

95.  Following that, the plaintiff found work at the Convention Plaza as a security guard with Hill and Associates between 29 February and 10 March 2008.  Thereafter, the plaintiff followed his supervisor in Hill and Associates to move over to his present employer SA Security when Hill and Associates were taken over by SA Security.

96.  His work as a security guard both in Hill and Associates and also SA Security was irregular casual work on a daily basis and paid on that daily basis usually at a rate of $100 per hour.  There are times when the plaintiff may be working a full seven days in a week, and at other times he may be only working as little as two or three days in a week.  For those days that the plaintiff was not required to work, he will not be paid.

97.  Before the accident, the plaintiff was earning a basic salary of $13,390 per month with the 2^nd defendant. However, he was also entitled to bonus overtime and other allowances.  There is a dispute between the parties as to the pre-accident earnings of the plaintiff.

98.  The plaintiff’s case has its basis upon the Employer’s Return submitted by the 2^nd defendant to the Inland Revenue Department for the year from 1 April 2003 to 31 March 2004 which showed that the total amount of remuneration, in the form of Salary/wages, Bonus and Other Allowances, paid by the 2^nd defendant to the plaintiff came to $241,563.00 for that year.  On that basis, the plaintiff submits that the average actual monthly remuneration which the plaintiff received from the 2^nd defendant immediately preceding the accident should be $20,130.25 (one twelfth of $241,563).

99.  On the other hand, it was submitted by the defendants that the plaintiff’s earnings in the 12 full months immediately preceding the accident (i.e. from July 2003 to June 2004) inclusive of the annual discretionary bonus was $238,396.81 after deduction of MPF.  This is supported by documentary evidence from the 2^nd defendant titled “Monthly Bank Autopay History” in respect of the plaintiff covering the period from July 2002 to June 2004.  On this basis, the defendants submit that the monthly average of the immediate preceding 12 months to the accident would show that the monthly average of the plaintiff’s net earnings to be $19,866.40.

100.  There appears to be a proper basis for the submission put forward by the parties as to the monthly average of the plaintiff’s net earnings before the accident and since the two figures put forward by the parties are not far apart, I shall take the median of the two figures suggested by both parties rounded off to give $20,000 as being the plaintiff’s net monthly earnings before the accident.

101.  Three comparables provided by the 2^nd defendant (in the form of Tang Yee Kwong, Fan Yiu Chung and Au Ka Hung all of whom had basic salaries lower than that of the plaintiff) showed that between July 2004 and April 2008, their total income from the 2^nd defendant had increased by 18.6%, 24.77% and 22.97% respectively.

102.  The average percentage increase in income for that period in respect of these three comparables comes to 22.11%.

103.  Applying that average percentage increase, the plaintiff’s total income from the 2^nd defendant had the accident not happened would have been $24,422 ($20,000 x 122.11%) in April 2008.

104.  For pre-trial loss of earnings, I shall adopt a pre-trial multiplicand of $22,211 (i.e. ½ of [$20,000 + $24,422]).

105.  For the pre-trial period, from the date of accident to judgment herein (83½ months) the plaintiff would have earned totally from the 2^nd defendant including MPF contribution of 5%, but for the accident, $22,211 x 105% x 83½ months = $1,947,349.

106.  However, the plaintiff did have some earnings during the pre-trial period and which will have to be taken into account and deducted from the figure of $1,947,349.

107.  The total actual earnings of the plaintiff during the pre-trial period are as follows :

(a)	on return to work for 2nd defendant post accident		$54,104
(b)	earnings from Citybase Property Management Ltd		$37,383
(c)	southeby’s exhibition at Convention Plaza @ $100 per hour for 11 days at 8 hours per day		$8,800
(d)	notional earnings between April 2008 to March 2009 With Hill & Associates and also with SA Security($9,100 x 12)		$109,200
(e)	notional earnings between April 2009 to March 2010 as security guard with SA Security ($9,100 x 12)		$109,200
(f)	actual earnings from Hill & Associates from 1/4/2009 to 31/3/2010 (Exh. P2)		$14,250
(g)	actual earnings between April to July 2010 (Exh. P1)		$24,415
(h)	actual earnings between August to November 2010 (Exh. P9)		$19,005
(i)	actual earnings in December 2010 (Exh. P10(1) corrected by Exh. P11)		$6,370
(j)	earnings in Southeby’s exhibition in October, November 2010 (Exh. P10 (2) (3))		$13,650
	Total	$396,377

108.  The evidence relating to the plaintiff’s earnings during the pre-trial period only covered the period up to December 2010.  However, since the pre-trial period spans up to the date of judgment herein, I would also need to take into account the plaintiff’s earnings from on January 2011 until judgment herein since there is evidence that the plaintiff is now engaged as a security guard by SA Security, albeit on a part-time or casual basis and being paid by the day on which there is work for him.

109.  From the actual earnings made by the plaintiff for the period from April to December 2010 (items (f) to (j) above, they total $63,440 for the nine months period.  This averages out to be $7,049 per month.

110.  I shall therefore use this average figure as being his notional earnings for the period from January to June 2011 and which will give $42,294 ($7,049 x 6).

111.  The plaintiff’s loss of pre-trial earnings is therefore calculated as being $1,947,349 – $396,377 – $42,294 = $1,508,678.

112.  I therefore assess the pre-trial loss of earnings of the plaintiff to be $1,508,678.

FUTURE LOSS OF EARNINGS

113.  I will use the figure referred to above of $24,422 as the present net earnings of the plaintiff with the 2^nd defendant had the accident not happened.  To this figure would have to be deducted the amount of $7,049 as being present actual earnings of the plaintiff.  This will give a multiplicand of $17,373.00.

114.  As for the multiplier, I take note of the fact that the plaintiff, born in March 1959, would have reached age 52 by the time of this judgment.

115.  Had it not been for the accident, he would likely have continued in his work as a tractor driver with the 2^nd defendant until normal retirement.

116.  I also take note of the fact that driving a tractor, being a heavy vehicle, may well be viewed as a form of heavy manual work.

117.  Given also that the plaintiff’s son and daughter would have long finished their studies and would have been already engaged in some form of remunerative employment by the time the plaintiff reached 60 years of age, it would likely be that the plaintiff would retire at age 60.

118.  In the circumstances, I will adopt a multiplier of 6 for calculating loss of future earnings which will be calculated as follows :

$17,373 x 105% x 6 x 12 = $1,313,398.

119.  The loss of future earnings is therefore assessed at $1,313,398.

SPECIAL DAMAGES

120.  Special damages are claimed by the plaintiff totalling $55,247.  This is made up of :

(a)   medical expenses of $39,247.50;

(b)   tonic food at $10,000; and

(c)   travelling at $6,000.

121.  Of the medical expenses claimed, the defendants only dispute the amount of $28,360 which was paid to Dr Leung over a 22 months period as being unreasonable.  The complaint by the defendant was that the plaintiff consulted Dr Leung on a weekly basis at a cost of $500 per visit (of which only $200 was reimbursed to him by the 2^nd defendant) and for which there was no improvement to the plaintiff.  It was also suggested by the defendant that the plaintiff had an ulterior motive in going back to Dr Leung week after week in order for Dr Leung to give him a sick leave certificate for the week since Dr Leung was either on the panel or otherwise approved by Mass Mutual who could certify his inability to return to work for the purpose of his claim under the Mass Mutual Policy.

122.  As for the claim in respect of tonic food, the defendant disputes $10,000 as being reasonable.  On the basis that no receipts had been produced to support such claim, the defendants submit that only $2,500 should be awarded in view of the relatively mild nature of the plaintiff’s injuries.

123.  I am unable to accept either of the submissions put forward by the defendants.

124.  In respect of the medical fees paid to Dr Leung, firstly, Dr Leung was referred to the plaintiff by Dr Yan, a panel doctor of the 2^nd defendant.  Secondly, $500 per visit is a reasonable enough fees in the Hong Kong context. It is also the evidence of the plaintiff that he did improve with the medication given to him by Dr Leung, however, the pain to his neck and shoulders, although it did improve in those 22 months, did not completely dissipate.  Because the pain continued, although diminished, the plaintiff cannot be faulted for continuing his weekly visits to Dr Leung in the hope of further improvements. 

125.  As for the tonic food, the plaintiff’s resultant disability and the residual pain in his neck and shoulders persisted for a very long time and when he was seen by Dr Tsoi in 2007, Dr Tsoi was of the opinion that the plaintiff had reached maximal medical improvement but that some pain to his neck and shoulders still troubled the plaintiff from time to time.

126.  Given the time for which the neck and shoulder pain persisted and will still continue to trouble the plaintiff, a claim of $10,000 for tonic food, even if unsupported by receipts, is not unreasonable.

127.  The amount of travelling expenses claimed in view of the length of time which the plaintiff had to consult medical treatment as well as physiotherapy and occupational therapy is also a reasonable amount claimed.

128.  Accordingly, the special damages will be allowed as claimed in the sum of $55,247.

FUTURE MEDICAL EXPENSES

129.  Under this head of claim, Dr Chung the joint psychiatric expert had recommended 10 sessions of psychological counseling for the plaintiff costing $1,850 per session.

130.  Accordingly, $18,500 will be assessed under this head of damage.

INTEREST

131.  Interest at 2% p.a. will be awarded on the PSLA award from the date of the Writ until judgment.

132.  Interests on pre-trial loss of earnings and on special damages will be awarded at half judgment rate (4%) from the date of the accident until judgment.

DEDUCTION

133.  There will be the usual deduction of the ECC payment of $519,000 already paid to the plaintiff.

SUMMARY

CONCLUSION

135.  There will be judgment for the plaintiff in the sum of $3,252,648 as assessed.

COSTS

136.  There will be a costs order nisi that the defendants do pay the plaintiff’s costs of the assessment and the assessment hearing to be taxed if not agreed.

137.  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations