BARBARA CAPPELLI v. HUANG, RENQIN

DCPI 1077/2023

[2025] HKDC 800

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1077 OF 2023

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ASSESSMENT OF DAMAGES

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1.  The Plaintiff (“P”) claims against the Defendants for damages for personal injuries suffered as a result of a traffic accident on 8^th May 2021.

2.  By consent, the action against the 2^nd Defendant was discontinued with no order as to costs in November 2023. In respect of the 1^st Defendant, no notice of intention to defend was filed. On 11 November 2024, an interlocutory judgment was entered against the 1^st Defendant with damages to be assessed.

3.  This is a hearing for the assessment of damages of P’s claim.

The accident

4.  According to P who adopted the contents of her witness statement as her evidence in chief, the accident occurred on 8^th May 2021 at about 11:23 a.m. near lamppost AB1721, Ngau Tau Kok Road, Kowloon. At the time of the accident, P’s husband, Mr Paolo Merlini was riding a motorcycle bearing registration no UP8705 (the “Motorcycle”) on the 1^st left lane of Ngau Tau Kok Road (the “Road”) towards east. P was a passenger on the Motorcycle. They intended to go to Amoy Plaza. The 2^nd Defendant was driving a private vehicle bearing registration no PM5670 (the “Vehicle”) on the 2^nd left lane of the Road. The 1^st Defendant was a passenger onboard the Vehicle on the front passenger’s seat.

5.  Upon reaching the Road towards east near lamppost AB 1721, the 2^nd Defendant stopped the Vehicle on the 2^nd left lane of the Road. The 1^st Defendant then suddenly opened the passenger’s door of the Vehicle and attempted to get off in the middle of the road without checking the vehicle behind coming on the 1^st left lane. The nearside front door of the Vehicle then hit P’s right leg, causing P to fall from the Motorcycle to the ground (“the Accident”). As a result of the Accident, P sustained right leg injury.

6.  The 1^st Defendant was charged with and convicted of opening vehicle door causing danger/injury to others contrary to regulation 44(2) of the Road Traffic (Traffic Control) Regulations and was fined a sum of $450.

Injuries and treatment

7.  On admission, X-ray showed fracture of right tibia and fibula shaft. Splint to right lower leg was given. On P’s request, P was transferred to Matilda International Hospital (“MIH”) for medical treatment on the same day.

8.  On examination, there was a 3.5 cm oblique and contaminated wound at anteromedial aspect of distal tibia, with bone exposed. Distal pulses were strong and equal. Sensation to light touch was normal. X-rays of right leg revealed a comminuted fracture of right tibia and fibula. The diagnosis of open fracture right tibia and fibula was made. Systemic antibiotics were given. Wound debridement and bone alignment with casting was done on 8^th May 2021 under general anesthesia.

9.  On 10^th May 2021, open reduction and internal fixation of right tibia with intramedullary nailing was performed under general anesthesia. 4 screws were implanted in P’s right lower leg. After the operation, P had to sit on a wheelchair. Post-operatively, P was allowed full knee mobilization and non-weight bearing walking exercises. P was discharged on 13^th May 2021. On discharge, P walked with a pair of elbow crutches.

10.  P was followed-up by Dr Terence Chan between May 2021 and January 2022. According to Dr Chan, there was persistent gradual improvement every few weeks. P could achieve full active knee motion in July 2021, full-weight bearing walking in September 2021 and P could walk normally in mid-November 2021. At the latest follow-up on 7^th January 2022, which was 8 months after the surgery, P still had mild limited ankle motion. X-ray of right leg showed good alignment of tibia with further bony healing. The fracture should be fully healed in the next few months, according to Dr Chan.

11.  P attended 2 sessions of physiotherapy at Joint Dynamics on 4^th October 2021 and 3^rd November 2021. Treatment including strengthening and mobilizing exercises were given.

Special damages

12.  In summary, P claims the following medical expenses

(a)	Hospital fees
	(i)  8/5/2021, Accident & Emergency	HK$180
	(ii)  8/5/2021 – 13/5/2021, Matilda Hospital	HK$259,289
(b)	Follow-up
	(i)  To attend STH on 22/5/2021	HK$605
	(ii)  From 21/5/2021 to 17/11/2021,	HK$12,700
	to attend Asia Medical Specialists
	6 times to see Dr Chan Wai Kit, Terence
	(iii)  To attend The Joint Clinic to see	HK$2,050
	Dr Chan Wai Kit, Terence on 7/1/2022
	(iv)  To attend Joint Dynamics	HK$3,000
	Physiotherapy on 4/10/2021
	and 3/11/2021
	Total:	HK$277,824

13.  P purchased painkillers at Mannings on 16^th June 2021 and paid a sum of HK$339.

14.  The medical expenses incurred were either supported by the relevant receipts or the medical records. The amount being claimed is reasonable and I shall allow them in full.

15.  P was granted sick leave from 8^th May 2021 to 29^th September 2021 for the injury. P worked from home during the sick leave period. There was no income loss. P resumed pre-accident work on 1^st October 2021.

16.  As a result of the Accident, P incurred the following travelling expenses:

(a)	Taking taxi home from MIH on	HK$300
	13/5/2021 on discharge
(b)	To attend STH on 22/5/2021 by taxi	HK$200
(c)	To attend Asia Medical Specialists	HK$1,800
	6 times by taxi at $300 per return trip
(d)	To attend the Joint Clinic on	HK$200
	7/1/2022 by taxi
(e)	To attend the Joint Dynamic 2 times	HK$600
	by taxi at $300 per return trip
	Total:	HK$3,100

17.  The amount P claims for travelling expenses to and from medical treatments is reasonable and I shall allow them in full.

PSLA

18.  At present, P has pain over the right ankle on palpitation. The right ankle is painful when changing weather. P has right ankle weakness when hiking and jogging. P was cross-examined by the 1^st Defendant as to her ability to go hiking and do water sports in August 2021. P confirmed that she did go hiking in August 2021 but only as exercise as advised by the doctor and that she only chose the easy one. She also did some exercise in the water as a kind of physiotherapy. I accept P’s evidence in this regard.

19.  For the award for pain, suffering and loss of amenity (“PSLA”), P claims for a sum of HK$250,000.00. In view of the extent of P’s injuries, I am of the view that the sum is reasonable and I shall award the sum of HK$250,000 for PSLA. In coming to this conclusion, I have considered some previous cases with similar injuries and, in particular, the following cases.

20.  In the case of Imtiaz Perviz v Senibo Development Limited and another HCPI 437/2005, it is a judgment of Deputy Judge Gill on 21 August 2007. The 18 year-old stevedoring slinger suffered a fracture to his right tibia and compartment syndrome. He received an emergency operation to stabilize his fractured tibia and a second operation which lasted 24 hours to remove the external fixator, debridement and skin grafting at the fracture site. He was hospitalised for 10 days and attended 30 sessions of physiotherapy. He returned to the surgical ward for removal of the implants. He used crutches for 1 year after which he made a good recovery. He was awarded HK$250,000 for PSLA.

21.  In Tsang Kam Fook v Shek Hau Tong t/a Luen Lam Engineering Company (a bankrupt) and Others, HCPI 711/2017, the plaintiff suffered fracture of tibia and fibula, and the fracture in the tibia was a comminuted one. It was caused by high energy trauma. Residual impairment like pain, weakness and stiffness of knee/ankle was expected. The plaintiff would have some difficulty in heavy manual lifting or long period of walking. A sum of HK$400,000 was awarded for PSLA.

Summary on quantum

PSLA	HK$250,000.00
Special Damages	HK$281,263.00
Total:	HK$531,263.00

22.  P is entitled to interest at 2% per annum for PSLA from the date of writ to date of assessment and half the judgment rate for special damages from the date of Accident to date of assessment.

23.  I shall make a costs order nisi that the 1^st Defendant do pay costs of the action, including any costs reserved, to the Plaintiff, to be taxed if not agreed. The costs order nisi shall become absolute unless the parties apply by summons to vary the said order nisi within 14 days from the date hereof.