YUEN MACIE v. YEUNG YING KIT

HCPI 528/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 528 OF 2015

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ASSESSMENT OF DAMAGES

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1.  This is a road traffic accident case. Interlocutory judgment has been entered on 28 July 2014 with cost of this action on the issue on liability be to the plaintiff save that the scale be reserved.

PSLA

2.  The plaintiff was involved in a car collision on 10 October 2012 and she suffered from neck sprain, right wrist sprain, right shoulder and back injury and she also complained of right hand numbness.  Physical examination revealed various areas of tenderness but x-rays did not show any fracture.  She was discharged on 12 October 2012.

3.  She underwent various physiotherapy sessions.  Further investigations were done.  MRI of cervical spine showed minor posterior disc bulge and no significant disc prolapse or spinal stenosis. MRI of right wrist showed intact TFCC and scapholunate ligaments.  Ultrasound of right shoulder showed intact rotator cuff tendons and normal bursa.

4.  There was gradual improvement but during the joint examination on 14 January 2014, she still complained of various residual neck and back pain, right upper limb numbness and right shoulder discomfort, all of which affected her daily life and occupation.

5.  According to the expert orthopaedic surgeons (Dr. TIO Man Kwun Peter instructed by the plaintiff and Dr. KWOK Hau Yan instructed by the defendant) :

i) The MRI findings of the cervical spine are “background changes” and should be “asymptomatic”.

ii) She still complained of various symptoms. Clinical examination showed residual tenderness with some stiffness and pain but no genuine neurological deficit.

iii) Dr. Tio opined that the “on and off pain…are expected for the first few years though the severity should gradually reduced.”

iv) Dr. Kwok opined that “there is residual pain over the wrist and neck but that would not affect Ms. Yuen’s working capacity or activities of daily living to a significant degree.”

6.  The plaintiff claims HK$300,000 under this head.

7.  In Leung Kwun Chuen v Li Shing Kong HCPI 749/2011, the range of award for “serious injury” was revised to HK$462,000 to 601,000.  Given that this case concerns soft tissue injuries with some residual symptoms but no evidence from objective medical investigations like MRI and Ultrasound scans, it is obviously below the “serious injury” category.

8.  After perusing various precedents submitted by the parties including Chui Wai Kan Michelle v Gillsepie John Thomas DCPI 1696/2014, Tang Chiu Yip v Ho Kwok Leung HCPI 305/2013 and Mohammad Amjad v John Pickavant & Co. HCPI 100/2009, I am of the view that a reasonable award under this head of claim is HK$230,000.

PRE-TRIAL LOSS OF EARNINGS

9.  The plaintiff claimed that she was working as a night-shift quality-check operator earning an average of HK$7,549 per month and a hairdresser during the day earning an average of HK$22,085 per month.

10.  For the quality-check operator job, the plaintiff has produced an employment contract which showed that she commenced this job in July 2012, about 3 months prior to the accident.  She worked normally from 11pm to 7am, 6 days a week and earned a basic salary of about HK$264 per night.

11.  The plaintiff has also produced various monthly salary records which showed that she earned on average HK$7,549 per month before the accident.  There was no tax return.

12.  However, the salary records showed that, although the plaintiff earned HK$7,504.01 in July 2012 and HK$9,039 in August 2012, she only earned HK$6103 in September 2012.  In October 2012, the month of the accident, she actually earned more than she did in the month before, HK$6,931.60.  This dropped to HK$5,623.20 in November.

13.  The earning in December was only HK$320.90 but the plaintiff said she was taking time off for a month (until early January 2013) for her wedding and honeymoon.  Her January earning was thus slightly reduced at HK$5,072.90.  Thereafter, her earnings were hovering around HK$7,600 to 9,000 (except for April 2013) until September 2013 (HK$5,838.80) and October, her last month of employment (HK$3,621.52).

14.  The plaintiff claimed in her witness statement that, after the accident, she endured pain to continue to work because she needed to earn a living, but that her working days were greatly reduced.  Further, in view that her work efficiency has reduced greatly, her employer persuaded her to resign voluntarily in November 2013 (Under cross-examination, she said this was in October 2013).

15.  I am not convinced that there was any significant reduction in her income after the accident according to the salary records.

16.  I also note that she took a month’s leave for her wedding and honeymoon.  This raise the question: if she could afford to take a whole month off work for a honeymoon, why was there such a desperate need to work in pain? This rather showed that she might not have much pain in the first place.

17.  Nevertheless, the salary records appeared to show that the plaintiff has taken a total of 77 days of sick leave since October 2012 (including what was termed “sick leave” and “unpaid sick leave” stated in Chinese on the records).  I will allow HK$264 x 77 = HK$20,328 as loss of income for this period.

18.  I am of the view that this is generous given that most, if not all, of the 25 days of “sick leave” taken by the plaintiff in December 2012 would likely to be for her wedding and honeymoon and therefore not related to any sick leave caused by this accident.

19.  The plaintiff was also rather evasive about the alleged circumstances of her resignation.

20.  She said there were new machines installed for inspection of the circuit boards and she needed to do more lifting for the new machines, and she could not cope with this work load.  Mr. Vincent Chen, counsel for the defendant, suggested that she was made redundant because of these new machines and asked her how many workers were “fired”.  The plaintiff said she did not know.

21.  It was hard to imagine that if the plaintiff was “persuaded to resign” from a job which she had been employed for more than 1 year, she would not at least know whether she was the only one asked to resign.  Is the court being asked to accept that the plaintiff simply accepted that, resigned to her fate and left quietly?  This was a minor point, but this was one example of many illogical, evasive or vague answers from the plaintiff.

22.  Further, the plaintiff started working for Nu-Skin in September 2013.  Her bank statement showed a deposit of HK$890.97 from Nu-Skin on 18 October 2013.  In February 2014, there was a deposit of HK$40,268.56 from Nu-Skin which the plaintiff said was for 3 months of income.

23.  The plaintiff pointed out that there were outgoing costs for her purchasing the Nu-Skin products but the bank statements only showed commissions she received for sale.  Despite this, the plaintiff failed to provide any calculations as to what her net profit should be.

24.  In fact, in both the Statement of Claim and the Revised Statement of Claim, the plaintiff failed to mention this income.  It was only in the plaintiff’s written opening that her counsel, Ms. Diana Cheung, mentioned this.  Even then, Ms. Cheung has still failed to account for the outgoing costs.

25.  As such, the court is left with no idea on how to calculate the net profit of this Nu-skin business.

26.  Nevertheless, the plaintiff did agree with Mr. Chen that, at least for the year 2014, Nu-skin has paid her about HK$130,000 as commission and, notwithstanding whatever outgoings she had to pay, this job paid better than her previous job as a quality-check operator.

27.  On top of this, there were payroll deposits from Synergy M (A) Limited which appeared in her bank statement.  The plaintiff only revealed under cross-examination that she has also worked for this company.  She claimed that this involved putting up advertisement signs in shops but she has stopped doing that now.

28.  Under cross examination, she claimed that she could not remember when she stopped this job at “Synergy”.  None of this was ever stated in her witness statement, the Statement of Damages or Revised Statement of Damages.

29.  The evidence the plaintiff produced to support her income as a hairdresser is equally problematic.

30.  There was no tax return or account statement.  The plaintiff has produced various handwritten notes from June 2012 which she claimed to be the income of her hairdressing job.  Further, she produced stacks of invoices for hair products and her bank account statements.

31.  Under cross-examination by Mr. Chen, the plaintiff admitted that the handwritten notes were entries for cash she received. There was no account for out-going costs e.g. costs of travel to some clients “all over Hong Kong” in her own car (other clients came to her home), costs of shampoos, conditioners and other hair products.  She also claimed that sometimes she got paid by direct debit or by cheque.

32.  On further cross-examination regarding her hairdressing income, she said, amongst others :-

i) she charged about HK$300 – 400 for a haircut which would take her about 10 minutes;

ii) she also received income from “doing out-jobs like magazine, events and beauty pageant jobs etc.” but she would only received “travel allowance”;

iii) she also bought and sold hair-products to her clients at a profit (which she admitted that she could continue to do even at the time when she could not cut hair).

33.  However, the plaintiff admitted that her handwritten notes did not record the client’s name or what the payment was for.

34.  As for the bank statements, the plaintiff confirmed that this was her only bank account.

35.  Mr. Chen asked the plaintiff whether, besides income from hairdressing, she received any income via cheques into the bank account.  Rather surprisingly, the plaintiff answered that she could not remember.

36.  When Mr. Chen asked her about a cheque deposit of HK$13,500 in July 2012, she said it could be from an “out-job”. But then when Mr. Chen challenged that this sum could not have been “travel allowance”, the plaintiff said she could not remember.

37.  Mr. Chen then went through various larger deposits in her bank statements (amounting to several thousands to several tens of thousand dollars).  The plaintiff was either very vague in her answers or claimed she could not remember.  The only deposits she remembered were cheques she deposited on 10 December 2012 which were her wedding gift money, and some ATM transfers from friends reimbursing her for airline tickets or trip expenses.

38.  I found it incredible that the plaintiff, who should usually be receiving a few hundreds dollars up to perhaps two thousand odd dollars from her hairdressing clients (as stated in her handwritten notes), would be unable to recall what these much larger bank deposits were for.  Such large deposits would be highly unusual given the nature of her claimed hairdressing job for private clients.

39.  All this rather gave an impression that the plaintiff has other rather substantial source or sources of income which she was very evasive about.

40.  Further, I am not convinced that the plaintiff did not find this 8-hour night shift work tiring and that, day in day out, she needed only sleep for a few hours and started her day job as a hairdresser at around 2pm.

41.  Mr. Chen also rightly questioned why the plaintiff would work a 8-hour night-shift for HK$264 each night when one haircut (taking only 10 minutes) would earn her HK$300-400.

42.  The plaintiff’s answer was that she only worked for known clients and they knew that she worked afternoons only.

43.  That clearly failed to answer the question.  Any reasonable person earning good profit would strive to expand their successful business, rather than to take up a poorly paid job which occupies more of the time.  This is even more surprising given that the plaintiff claimed to be a hairdresser with 23 years of experience, and yet she gave no evidence as to what drove her to take up a new job of a nature seemingly totally unrelated to her own expertise and experience.

44.  Even on the plaintiff’s own case, she admitted that the handwritten notes did not reflect her net profit in hairdressing, and that her bank account contained deposits which she could not remember and in any case were not accountable in her handwritten notes.

45.  When I asked Ms. Cheung how I could calculate the net profit, Ms. Cheung suggested that I should deduct the hair product invoice from the plaintiff’s claimed income.

46.  I think this is problematic.  The plaintiff has not identified in the invoice which were the hair-products she used for hairdressing and which were for re-sale to the clients.  She also failed to identify from her handwritten notes which were cash receipts from hairdressing and which were cash receipts from re-sale of hair products.  There was also the matter of travel and car running costs of which no evidence was produced.

47.  Indeed, no assistance was provided by the plaintiff whatsoever to the court as to how this should actually be calculated and what the figures should be: there was no such calculation in the Statement of Claim, Revised Statement of Claim or even Ms. Cheung’s submissions.

48.  It appeared that the plaintiff and her legal advisers has completely failed to notice the “outgoing costs” for both the claimed hairdressing business (and the Nu-skin business) until the closing submission, at which time Ms. Cheung simply asked the court to “deduct the invoice”. 

49.  Considering all the above, the plaintiff’s evidence regarding her hairdressing business simply does not make sense.  I did not find the plaintiff a credible witness.  As such, the court could not rely on those handwritten notes at all, given that these were entirely produced by the plaintiff herself.  The invoices might indicate that the plaintiff might have been conducting some business connected with hair products, but that was all.

50.  The court was left with no reliable evidence to assess what the plaintiff’s net profit from the claimed hairdressing business was, if any.

51.  I would take the common sense approach: the only reason why someone would take up a relatively poorly paid job was that he or she has no alternative.  I could only speculate that whatever the plaintiff’s income in hairdressing was, it would not be significant because she has decided that an 8-hour night-shift work for HK$264 a night was worth the time and effort.

52.  I am of the view that she could not have been earning anywhere close to HK$22,085 as claimed.  With no reliable evidence from the plaintiff, I would allow HK$5,000 per month as her net profit as a hairdresser.  This is generous, given that it is not unreasonable to argue that the plaintiff has completely failed to prove her income as a hairdresser, or indeed, question whether the plaintiff was working as a hairdresser at all at the relevant time!

53.  For the assessment of pre-trial loss of earnings for the quality-check operator job, I have already allowed HK$20,328 as stated above.

54.  I would also give the plaintiff the full benefit of doubt that she was unable to cope with job with the introduction of the new machine so she was persuaded to quit in October 2013.  And since she herself admitted that her income from Nu-Skin in 2014 paid better than that of the quality-check operator job, I would allow 3 months (from October to December 2013) of loss of income from quality-check operator job: HK$7,549 x 3 = HK$22,647.

55.  This is generous, given that the plaintiff admitted that the sum she received from Nu-Skin in February 2014 was for the past 3 months, so it should have covered December 2013 if not even earlier.

56.  For the assessment of pre-trial loss of earnings of her hairdresser job, for reasons stated above, the assumption was that she earned HK$5,000 as net profit each month.

57.  In the joint orthopaedics expert report, both Dr. Tio and Dr. Kwok were in agreement that “the usual recovery of neck sprain and wrist sprain could be up to 6 to 8 months”.

58.  Giving the plaintiff all benefit of doubt that she was unable to cut hair for the full 8 months, I would allow HK$5,000 x 8 = HK$40,000.

59.  I am of the view that this is generous given that the plaintiff admitted that she could still sell hair-products during this time even though her hair-cutting ability was compromised.

60.  The Pre-trial loss of earnings is therefore HK$20,328 + HK$22,647 + HK$40,000 = HK$82,975.

FUTURE LOSS OF EARNINGS

61.  From the joint orthopaedics expert report, the plaintiff’s expert, Dr. Tio, opined that “she is considered to be fit for resuming her pre-injury duty provided that she does not have to lift or carry heavy objects, stationary position of her right upper limb for prolonged period of time, prolonged walking and standing for over 1-2 hours and prolonged bending of her neck etc.  She is advised to have intermittent breaks of 15 minutes after each 2 hours’ work.”

62.  The defendant’s expert, Dr. Kwok, opined that “considering most of Ms. Yuen’s symptoms are subjective, it will not affect Ms. Yuen’s occupation as a hairdresser / stylist.  It will also not affect her occupation as quality checking worker…”

63.  The plaintiff’s complaints as listed in under “Accident Disabilities” are various pains, numbness, discomfort and their alleged effects on her daily activities and occupation.  Such complaints, as opined by Dr. Kwok, are subjective.

64.  On physical examination, the plaintiff complained of “neck pain on extreme range of movement in all directions” and various tenderness in the neck and back.

65.  A complaint of pain or tenderness (which means the patient complains of pain when the area is palpated) is essentially subjective: it is entirely up to the patient to inform the doctor whether there is or isn’t pain.

66.  With regard to objective signs at the physical examination and investigations, I note that essentially nothing abnormal was found: neck: alignment was normal, no muscle spasm, no muscle wasting; back: alignment was normal, lordosis preserved, no muscle spasm; upper and lower limbs: no muscle wasting etc.; radiological examination of spine, pelvis and shoulder: no abnormalities seen.

67.  Of course, most medical consultations can be divided into 4 stages: 1) the patient gave a history of her subjective complaints, 2) the doctor conducting a physical examination, 3) the doctors ordering and assessing any investigations like x-rays and MRI scans, and 4) treatment (if needed).

68.  Stage 1 of the consultation is essentially subjective: the doctor would rely on the truthfulness of the patient in relating and not exaggerating the complaints and in answering the doctor’s questions.

69.  Stage 2 is when the doctor examines the patient and conducts bed-side tests.  These are mainly for objective evidence, but as stated above, some examinations (e.g. for pains and tenderness, range of joint movement, muscle power etc.) also required the truthfulness and co-operation of the patient.  However, there are some tests which test the co-operation, consistency, or “truthfulness” of the patient.

70.  Stage 3 is investigations which should essentially yield objective evidence, but different investigations have different limitations so there are “false positives” and “false negatives”.  In other words, a certain percentage of patients with no illness may still have “positive” investigation results, and a certain percentage of patients with the illness may have “negative” investigation results.  Such percentages are variable but inherent in different investigations.  There is usually no “magic diagnostic machine” that is 100% failsafe available to the doctors. 

71.  As such, one may argue that significant objective signs or positive objective tests may not be present in all kinds of injuries and disabilities.  The fact that there is no objective evidence does not automatically means that the plaintiff is lying about her subjective symptoms.

72.  However, in cases where there is a lack of supportive objective evidence at the experts’ physical examination and investigations, the court should interpret the plaintiff’s subjective symptoms carefully taking into account the overall credibility of the plaintiff. When the plaintiff’s credibility has been called into question, any subjective symptoms unsupported by objective evidence must also be called into question.

73.  Some medical experts base their opinion entirely in the assumption that all the subjective symptoms told to them by the plaintiff were truthful.  I do not think that this is appropriate.  A truly independent expert should always qualify his opinion by stating what assumptions the opinion is based upon, and, if applicable, offers alternative opinion when other assumptions are made.

74.  Whether the plaintiff was truthful or not is a matter of fact-finding for the court, not for the medical experts.  Thus, whilst the court must rely on the experts on the objective evidence on physical examination and interpretations of various x-rays and MRIs etc., for these are areas of their expertise, the court is still able to determine whether any of the subjective symptoms told by the plaintiff to the experts should be accepted as truthful or not.

75.  In this case, I have already stated why I did not find the plaintiff a credible witness and I would also question her subjective symptoms.  I agree with Dr. Kwok’s opinion.  There is essentially no objective evidence to supportive that the plaintiff could not resume her previous occupations.

76.  Even on Dr. Tio’s opinion, I have not heard any evidence from the plaintiff that her hairdressing job required her to “to lift or carry heavy objects, stationary position of her right upper limb for prolonged period of time, prolonged walking and standing for over 1-2 hours and prolonged bending of her neck”.

77.  As such, I accept the experts’ opinion and find that she is fit to resume her occupation.  There should be no award for future loss of earnings.

LOSS OF EARNINGS CAPACITY

78.  Given the experts’ opinion as stated above, I find that the plaintiff does not suffer any disadvantage in the open labour market so no award is given under this head of claim.

SPECIAL DAMAGES

79.  The plaintiff claims HK$24,050 as medical expenses from both the public and private sector.  There are supportive receipts so I will allow this claim.

80.  I will also allow the claim for travelling expenses of HK$4,000 and the claim for tonic food of HK$3,000.

81.  The total claim under this head is HK$31,050.

ORDER

82.  The award is summarised as follows :-

HK$
PSLA	230,000
Pre trial loss of earnings	82,975
Future loss of earnings	0
Loss of earning capacity	0
Special damages	31,050
Total (before interest)	HK$344,025

83.  There be interest on general damages at 2% from date of writ to the date of judgment and interest on special damages at half judgment rate from the date of accident to date of judgment.

84.  I would also give an order nisi for the costs of the action to be paid by the defendant to the plaintiff to be taxed if not agreed in the District Court scale and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate to Counsel.