SO KIM LUNG v. LEE PAK WAI

HCPI 494/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 494 OF 2010

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an assessment of damages suffered by the Plaintiff for his “whiplash injury”.

Background

2. On 24 June 2008, the Plaintiff met an accident when he drove a public light bus along Kiu Hing Road.  The right offside front bodyworks of the public light bus was collided by the offside bodyworks of the private car driven and owned by the Defendant.  Later, the Defendant was convicted of the offence of careless driving and fined $800.

3. After the accident, the Plaintiff was taken to the Pok Oi Hospital and discharged on the same date.  Two days’ sick leave (24 and 25 June 2008) was granted to him. 

“The diagnosis was: neck pain and low back pain after involved in traffic accident.

Physical examination showed no external wound on whole body.

Range of neck movement was normal.

Mild local tenderness on the lower spines region.

XR of neck and low back revealed no bony lesion.”

  (A& E Report of Pok Oi Hosiptal dated 19.1.2010)

4. On 25 June 2008, the Plaintiff went further to the A & E Department of Tuen Mun Hospital. 

“Medical examination revealed the following conditions: pain around neck and low back region.

He was treated and discharged.

He was granted two days sick leave from 26/6/08 to 27/6/08.”

 (Report dated 9.1.2010)

5. Two further days later, on 27 June 2008, the Plaintiff went to Madam Yung Fung Shee Health Centre GOPC. 

“… Physical examination showed tenderness over the cervical and lumbar spine and neck movements in all directions were restricted by pain. Flexion of back carried fingers to knees. There was no neurological deficit. He could walk without aid. There were bruises over left gluteal region and lateral side of left knee. He was prescribed Indocid, Famotidine and Analgesic balm. A sick leave of 4 days from 27 June 2008 to 30 June 2008 was granted. He had no further visits to our clinic afterward.”

(Report dated 15.1.2010)

6. After the lapse of the further sick leave of 4 days, the Plaintiff went back to the Tuen Mun Hospital.  He attended the clinic at the Family Medicine Department.

“On physical examination, there was tenderness at cervical and lumbar region of spine, range of neck and back movement was reduced, a bruise was noted at left buttock and lateral side of left knee, otherwise no neurological deficit was noted. He was able to walk unaided during consultation.

Mr So was given indocid 50 mg bd, pepcidine 40 mg bd and analgesic balm for pain relieve, sick leaves were issued.

Mr So returned to us for the similar condition for several visits. He was then referred to physiotherapist for further treatment since 23/Jul/2008.

Mr So attended us for similar condition since then. He was last seen on 17/Mar/2009, complained of persistent back and left thigh pain with minimal neck pain, there was no tenderness nor neurologic deficit noted.

Mr So was then follow up in Orthropaedic Department of Tuen Mun Hospital afterward.

Sick leaves were issued from period 1/Jul/08 to 8/Jul/08, 12/Jul/08 to 22/Sept/08, 24/Sept/08 to 27/Sept/08 and 29/Sept/08 to 20/Mar/09.”

(Report dated 18 January 2010)

7. At the Orthopaedic Department,

“This patient was first seen at our Orthopaedic Specialty Out-patient clinic, Tuen Mun Hospital on 20 March, 2009.

……

He complained of neck pain, back pain and left leg pain.

Physical examination and X-rays revealed no fracture. There was no neurological deficit over upper limbs and lower limbs.

He was managed conservatively with physiotherapy, occupational therapy and analgesics.

Follow-up on 29 April, 2009, 20 May, 2009, 10 June, 2009, 8 July, 2009, 5 August, 2009, 2 September, 2009 and 30 September, 2009 revealed improving clinical condition.

Sick leaves were issued from 20 March, 2009 to 30 September, 2009.

Patient was last followed up on 2 June, 2010, with residual neck pain, back pain and left shoulder pain.”

(Report dated 12 August 2011)

8. Further, according to the report dated 6 July 2012 of the Occupational Therapy Department of the same hospital, the Plaintiff attended 11 treatments therein from 18 May 2009.

“ 3. In the initial evaluation, patient presented with nearly full active range of motion over neck and back. The muscle power over his upper limbs and lower limbs was graded 5/5. The power grip over her right hand was 38kgf while left hand was 21kgf.

4. Mr. SO worked as minibus driver before injury. The job demand was constant sitting and foot action; frequent handling for controlling steering wheel. In the initial assessment, he has demonstrated pedaling with resistance 8lb for 15 mins. He tolerated forward reaching with neck rotation of 20 mins. In controlling steering wheel, he tolerated 30 mins. His reported sitting and walking tolerance was both 30 mins. He was ranked as marginally match his job requirement for inadequate sitting tolerance.

  5.  Mr. SO was then admitted to the work reconditioning and hardening program to optimize his physical and functional capacity.  In the last assessment, his power grip over right hand was 46kgf while left hand was 30kgf.  He demonstrated pedaling for 10 mins for each leg.  His tolerance in controlling steering wheel with neck rotation was 10 mins.  His walking tolerance was 60 mins and sitting tolerance was 60 mins.  He was still ranked as marginally match his job demand.  The progress was static and he was discharged from work rehabilitation program.”

9. Apart from the above treatment within the government hospitals, the Plaintiff also attended a private doctor twice in October and December 2009 as well as another Chinese medical practitioner 14 times from February to August 2012.

10. In the meantime, on 20 September 2010, the Plaintiff commenced the present proceedings against the Defendant.  The Defendant conceded liability in March 2011 and parties thereafter proceeded to assess damages to be payable to the Plaintiff.

11. They appeared before me for 3 days in October 2012.  Mr Ronald Tang of Counsel acted for the Plaintiff and the Defendant was represented by Mr Patrick Lim of Counsel.

Preliminary/Procedural matters

12. There are 4 preliminary/procedural matters.  They may be summarized in the followings.

(a)  At the outset of the hearing, the Defendant applied by summons to seek discovery upon the Plaintiff for his statement of affairs/documents declaring his income under HCB 7331/2005 wherein he petitioned for his own bankruptcy. Upon consideration, I refused it as the discovery would necessarily cause adjournment of the Assessment and no “exceptional circumstances” was proved by the Defendant.

(b)  On the other hand, both the Petition and the Statement of Affairs affirmed by the Plaintiff in HCB 7331/2005 were made available to parties for the purpose of the Assessment.

(c)  After the Plaintiff had finished his evidence, Mr Tang appeared to apply to adduce further written record made recently by the Plaintiff himself to show his daily work and income.  After discussing the matter briefly and a short break, Mr Tang did not pursue the matter further.

(d)  Finally, in the course of the Assessment, Mr Lim also indicated that he might ask to inspect the original of two public light bus rental agreement produced by the Plaintiff.  The matter was ultimately abandoned.

Issues

13. Both Counsel kindly assisted the Court by trying to identify the issues to be decided.  Mr Tang said in his opening:

“ (a) Having regard to the Plaintiff’s injury, what should have been the proper length of his sick leave?

(b) Has the Plaintiff suffered loss of earning capacity as a result of his injury?

(c)  What was the Plaintiff’s monthly income before the accident?”

14. On the other hand, Mr Lim told me at his final submissions:

“ (a) In view of the agreed diagnosis of the experts that the injury was soft tissue injury to the neck and back, what is the true extent of the residual symptoms?

(b) What is the reasonable period of sick leave for the injury sustained?

(c) After reasonable period of sick leave would the Plaintiff be able to return to his pre-accident work as a PLB driver in pre-accident capacity?

(d)  What was the Plaintiff’s monthly income at the time of the accident?”

15. One can see that the issues as identified by both Counsel are more or less the same.  For easy reference, I will simply adopt those suggested by Mr Lim, save that (a) be amended to “What is the injury suffered by the Plaintiff at the accident and his extent of residual symptoms?”

Credibility of the witnesses

16. In the course of the Assessment, Counsel kindly agreed to dispense with the attendance of the 3 investigators for the Defendant.  As a result, there were only 2 witnesses disposing their oral testimony before me, (a) the Plaintiff himself and (b) his friend, Mr Yu.

17. Creditability of the Plaintiff is of vital importance because it affects the findings of all the 4 issues to be decided.  As to Mr Yu, I will see if he can corroborate the case of the Plaintiff in satisfying this Court the final issue at (d), i.e. the monthly income of the Plaintiff at the time of the accident.

18. To start with, I regret to say that the Plaintiff is hardly a reliable witness.

(a)  Irrespective of the underlying reasons, both orthopaedic experts, including the one acting for the Plaintiff, took the view that, upon objective tests, there was exaggeration of symptoms during examination.

“44. Inconsistency was detected over Straight Leg Raising (SLR) test. SLR is expected to have the same outcome when performed in either supine or sitting posture, as basically it is a nerve tension test. Hence a number of Waddell’s simulation tests were performed and he complained of left side neck pain on Vertex Compression Test & Shoulder Compression Test. On Pelvic Rotation Test, he complained of left back dullness. Dr Wong opines Mr So likely magnified his symptoms during the examination. Dr. Chun agrees.”

(Joint report dated 25 August 2010)

(b)  The surveillance videos also show that the Plaintiff has been exaggerating his residual symptoms.  As pointed out by Mr Lim in his closing submissions:

“ 15. The surveillance taken on 9 August 2010 the day of the joint examination clearly showed he had good mobility and can turn his neck apparently without difficulty. He was also able to walk long distances and for long periods without any apparent difficulties. This should be contrasted with his complaints made during the joint examination and the surveillance clearly supports the joint opinion of the experts that there was symptom magnification.

  16.  Further surveillance on 6 November 2010 showed that he could turn his neck without any apparent difficulty …”

(c)  The Plaintiff has just proved himself to be one who will say anything when it is convenient for him.

(i)  The monthly income earned by the Plaintiff at the time of the accident was a hot issue between the parties and a number of interrogatories had been made to pursue the same.

(ii)  The Plaintiff has produced no or virtually no written contemporaneous documents of proof for his income.

(iii)  Nonetheless, it happens that the Plaintiff made himself a bankrupt in 2005, and as such, he was obliged to file annual statements to the Official Receiver for 4 years to report his income and expenditure.

(iv)  No annual statement has been adduced. The Defendant’s application for specific discovery was taken out too late and was refused as aforesaid.

(v)  However, the Plaintiff himself did step into witness box.  He should be able to tell us the position.

(vi)  Unfortunately, he could recall nothing useful for this Court, including how he had informed the Official Receiver about his income and expenditure at all material times.  In my view, he is simply refusing to answer questions from Mr Lim and those of this Court.

(vii)  As being cross-examined by Mr Lim, the Plaintiff would have been required to make contribution to his estate, had he reported his income to be $26,500 at the material time, bearing in mind his monthly expenses of about $7,000 in 2005 and the fact that he was not ordered to pay maintenance by the family Court to his ex-wife and daughter.

19. Mr Tang tried his very best to save the credibility of the Plaintiff by referring me to the evidence of Mr Yu as well as other written evidence produced before me, like the 2 public light bus rental agreements and the medical reports.  However, on balance, the fact that the Plaintiff is not an honest and credible witness is fatal to his case.  As a whole, his friend and other evidence cannot help him too much.

(a)  I have no quarrel that Mr Yu is a relatively better witness than the Plaintiff.  The evidence of Mr Yu is however limited to the extent that he could only show his monthly income, but not necessarily that of the Plaintiff.  Mr. Yu thought that both he and the Plaintiff did perform the “special shift” because he simply knew it and that he had met the Plaintiff a couple of times during the working journeys.

(b)  However, Mr Yu had a good reason to work so hard because he needed to earn more. What about the Plaintiff?  He was then a bankrupt.  While the law imposes a duty on every bankrupt to use his best endeavors to earn, it remains a fact that one needs to contribute more to the estate if he will earn more.  Why would the Plaintiff suddenly become working as hard as he claimed sometime from the year of 2007 and 2008?  I heard no or no reasonable explanation from the Plaintiff at all.

(c)  On the other hand, while agreeing with Mr Tang that the government hospital reports do contain some objective medical evidence to support the extent of injury and residual symptoms suffered by the Plaintiff, they has to be weighed against his unreliability and exaggeration.

The medical evidence

20. There is a single joint report orthopaedic report before me, Dr Wong for the Plaintiff and Dr Chun for the Defendant.

(a)  No doubt, on balance, I agree to accept their agreement as to the magnification of symptoms by the Plaintiff during examination.

(b)  As to their differences, in light of my aforesaid rulings over the Plaintiff himself and the investigators’ evidence, I prefer to accept those of Mr Chun, save that the sick leave granted by the government hospitals would be more than the suggestion of 4 weeks only.

Answers to the Issues

21. As a result, the answers to the 4 issues before me are:

(a)  The Plaintiff suffered minor injury to soft issue on his lower back and neck at the accident.  There was no external wound or bone fracture.  There was also no neurological deficit.  His complaints made to both the Family Medicine Department and the Orthopaedic Department of the Tuen Mun Hospital was exaggerated, and as a result certain sick leaves were granted to him unnecessarily.  Thereafter, however, there is still a 0.5% residual mild pain and ache at his neck and lower back.

(b)  A period of sick leave for 6 months is appropriate in the circumstances, including taking up suitable treatments.

(c)  The Plaintiff is able to return to his pre-accident work as a public light bus driver, day shift, night shift or special shift (if he is really willing to work harder) after the said sick leave for 6 months.

(d)  At the time of the accident, the Plaintiff was only earning about the sum of $10,000 per month, as suggested by the Defendant. At one point in time, I thought that such finding could not be reconciled with the 2 public light bus rental agreements produced by the Plaintiff.  Fortunately, Mr Lim provided an answer to it.  Assuming that the documents were true (bearing in mind that authenticity of the documents was challenged by the Defendant), they only showed that the Plaintiff contracted with the public light bus owner to rent the same for the special shift.  It did not however necessarily mean that he did work accordingly.  The Plaintiff could simply have his own arrangement with other drivers.  In my view, it is more likely than not to be the case. Further or in the alternative, it is entirely up to the Plaintiff to satisfy the Court on balance of his case.  If he decides not to tell the truth or the whole truth, this Court can do nothing but refuse to accept his case on balance.

22. I now move to the quantum.

PSLA

23. The Plaintiff asked for the sum of $300,000 to compensate this pain suffering and loss of amenity.  The Defendant said $80,000 only.  In light of my assessment of the injury suffered by the Plaintiff including his 0.5% residual pain at neck and lower back, as well as the authority of Chiu Wing Sze v Chan Ying Wai & Another [2001] 2 HKLRD 92, referred to by Mr Tang (whiplash injuries suffered by the plaintiff therein are more serious than those of the Plaintiff herein).  I take the view that a sum of $120,000 is reasonable in the circumstances.

Pre-trial loss of earnings

24. As a result of my finding of facts on the income and appropriate sick leave, the Plaintiff will be entitled to a total sum of $60,000 ($10,000 x 6) for loss of pre-trial loss of earnings.

Loss of earning capacity

25. The earning capacity is only mildly affected.  A sum of $30,000 ($10,000 x 3) is reasonable to compensate the Plaintiff under this head of claim for slight handicap in open labour market.

Special damages

26. As I have taken the view that the sick leave and treatment over the Plaintiff should come to an end 6 months after the injury.  Some of the medical expenses should not be held by the Defendant.  I will award the Plaintiff:

		$
(a)	Medical expenses	10,000
(b)	Travelling expenses	2,500
(c)	Tonic food	3,000
		15,500
		=====

Summary

27. To sum up, the Plaintiff is entitled to recover from the Defendant:

		$
(a)	PSLA	120,000
(b)	Pre-trial loss of earnings	60,000
(c)	Loss of earning capacity	30,000
(d)	Special damages	15,500
		225,500
		======

Interest

28. The Plaintiff is also entitled to interest on general damages at 2% per annum from the date of writ until today.  As to special damages, interest is to be calculated at half judgment rate from the date of accident to today.

Costs

29. Finally, there will be a costs order nisi that the Plaintiff is entitled to costs of the assessment, on District Court scale, on party-and-party basis, to be taxed, if not agreed. The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.