CHANG CHIN TSAI v. SHUM KIN AND ANOTHER

[English Translation – 英譯本]

HCPI 1048/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1048 OF 2006

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BETWEEN

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JUDGMENT

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1. The Plaintiff claims against the two Defendants the sum of $29,251,000 being damages for personal injuries. As the Plaintiff has conceded contributory negligence to the extent of 10%, the net amount of the claim is $26,325,900.

2. On 25 April 2007, Master Kwan ordered that the case be transferred to the District Court, for the reason that, if judgment were given in favour of the Plaintiff, he would not be awarded damages exceeding $1,000,000. The Plaintiff now appeals against the order.

3. Furthermore, on 23 March 2007, the Plaintiff applied for interim payment by the Defendants of a sum of $600,000. Although the Plaintiff asserts that his application was dismissed by Master Kwan, in fact the Master did not make any order in respect of the application and, instead, merely explained to the Plaintiff the grounds for applying for interim payment and then asked him to consider whether he had sufficient reasons for making the application.

Claim and grounds of defence

4. The Plaintiff was not legally represented in proceeding with the aforesaid applications. Nor is he legally represented in pursuing the present appeal. In his Statement of Claim, the Plaintiff pleads that on 1 January 2004 he was hit by a public light bus driven by the 1^st Defendant and owned by the 2^nd Defendant, and at that time the 1^st Defendant was employed by the 2^nd Defendant to drive that vehicle. The Plaintiff pleads that the accident was caused by negligence of the 1^st Defendant and that the 2^nd Defendant, as the 1^st Defendant’s employer, was vicariously liable for his act. The Plaintiff pleads that, as a result of the accident, he suffered severe personal injuries and related loss and damage, for which the Defendants are liable to pay damages to the Plaintiff.

5. Following the accident, the 1^st Defendant was prosecuted for the offence of careless driving. He pleaded guilty at the Tsuen Wan Magistracy on 27 July 2004.

6. The Defendants have filed a Defence through their solicitors. In the Defence, they deny the Plaintiff’s allegations and plead that the accident was caused by negligence of the Plaintiff. They also deny any employment or agency relationship between them, although they do not state whether the public light bus was owned by the 2^nd Defendant at the material time and do not explain why the 1^st Defendant was driving that vehicle at that time. They also plead that the 1^st Defendant pleaded guilty to the charge of careless driving merely because he was forced to do so by reason of the need to save time and money, and that the 1^st Defendant’s conviction does not mean that the Plaintiff is not liable for negligence.

Medical reports

7. The Plaintiff has adduced 6 medical reports prepared by doctors at the Neurosurgical, Surgical and Orthopaedic Departments of Princess Margaret Hospital as well as an assessment report prepared by Dr Danny Tsoi. The first report was prepared by Dr Chan Ngo Lun, Alen of the Neurosurgical Department on 19 April 2004. The report states that the Plaintiff was conscious upon arrival at the hospital after the accident although he said he momentarily fainted after the accident. A few injuries were found on the Plaintiff’s body, including a 4-cm long laceration on the left forehead; abrasions on the right forehead, cheeks, right hand and both knees; and tenderness on the left chest. X-ray check also revealed a fracture of the left 5th rib although there was no sign of pneumothroax. Computed tomography x-ray scan revealed a small area of high density on the left parietal lobe, an indication of a contusive injury. The hospital administered conservative treatment on the Plaintiff, suturing the laceration wound on his left forehead and providing him with active rehabilitative treatment, but no surgery was done to him. He was discharged on 12 January 2004.

8. The second report was prepared by Dr Virgil Yung of the Surgical Department on 27 August 2004. The contents of this report are by and large the same as those of the abovementioned first report, although Dr Yung added that subsequent x-ray examination showed that benignant callus had developed at the site of the fracture of the rib.

9. The third report was prepared by Dr Cheung Kim Wai of the Orthopaedic Department on 15 October 2004. The report states that the Plaintiff was diagnosed jointly by doctors of the Neurosurgical, Surgical and Orthopaedic Departments. The preliminary orthopaedic diagnosis was that the Plaintiff was conscious with no tenderness on the neck, chest and lumbar spine. There were abrasions on the right hand and right knee, and x-ray examination revealed a fracture of the left 5th rib. The Plaintiff received treatment at the Intensive Care Unit and was discharged on 12 January 2004. On 6 July 2004, he was referred by a medical department clinic to the Orthopaedic Department to receive treatment on his low back pain. He was diagnosed on 26 July 2004. He had a history of low back pain, but his legs felt normal and he was able to stretch and lift his legs during examination. Nor was there any neurological defect in his legs. X-ray examination showed a wedge fracture of the lumbar spine at L-1, but this had healed up.

10. The fourth report was prepared by Dr Wong Wai Kei of the Neurosurgical Department on 7 December 2004. The contents of this report are similar to those of the report by Dr Chan of the same Department on 19 April. Dr Wong further pointed out that, during the Plaintiff’s stay at the hospital, the hospital provided him with a collar as part of the standard post-traumatic treatment. There was no weakness or numbness in the Plaintiff’s limbs, and he did not complain of back pain. He was discharged on 12 January 2004 and, starting from 3 February 2004, received follow-up diagnosis once every 2 to 3 months. As he complained of headache and dizziness, the hospital conducted another computed tomography x-ray scan on him on 4 April 2004, but it failed to locate the source of the problems. On 5 May 2004, the hospital conducted an x-ray examination of the Plaintiff’s lumbar spine and found a wedge fracture at the L-1 region. Dr Wong’s report concludes by stating that the Plaintiff is not expected to suffer permanent damage to his neurological system and by giving a favourable prognosis on his head injuries.

11. The fifth report is a supplemental report prepared by Dr Wong Kam Yiu of the Orthopaedic Department on 21 December 2004. The report states that the Plaintiff complained of neck pain, tenderness on the lower cervical spine, and a reduced range of movement of the neck. At the diagnostic session on 2 January 2004, no tenderness on the chest and waist was detected upon being touched. The hospital provided the Plaintiff with a collar in respect of his neck pain. The contents of this report are more or less the same as those of the previous report.

12. The last report was prepared by Dr Virgil Yung of the Surgical Department on 29 January 2005. The report states that the Plaintiff complained of neck pain and low back pain as a result of the injuries, and the orthopaedist suggested that he use a Philadelphia neck collar to deal with that problem.

13. Dr Tsoi is a specialist in orthopaedics. In his report dated 21 December 2004, Dr Tsoi recorded the Plaintiff’s complaints: inability to speak clearly, unsatisfactory coordination of the hands in performing minute movements, inability to write, impairment of vision, impairment of intelligence and memory, intermittent neck pain with varying degrees of painfulness, low back pain which exacerbated with movements, inability to work for more than 10 minutes, need for a walking stick to assist in walking, difficulty in climbing staircases, pain in the left chest when sleeping on the left side.

14. However, when the Plaintiff made submissions in his mother language at the appeal hearing, he had no difficulty at all in speaking and did not have any problem of unclear speech. In response to the Defendants’ submissions, he made submissions for the whole of one hour. Nor did he have difficulty in writing.

15. After examining the Plaintiff, Dr Tsoi was of the view that the Plaintiff was in good health. He was able to give proper responses to the doctor’s questions. His neck moved naturally and smoothly. When he walked, his right hand was holding a stick as assistance, but he was able to walk with a stable gait without using a stick. He was unable to squat. As for his neck, the cervical bones aligned normally. There were tender points along the median at C5, C6 and C7, and there was tenderness in the muscles on both sides of the vertebrae. There was no muscle cramp. There was no defect in the neurological system in the upper limbs. As for his low back, the bones aligned normally. Although there was tenderness in parts of the L1 and L5 regions of the lumbar spine, the muscles on both sides of the lumbar spine showed no tenderness. There was no muscle cramp. There was no defect in the neurological system in the lower limbs. Examination of the chest showed that there was no atrophy of the muscles by the shoulders. Percussion of the side of the left chest elicited pain. The chest expanded normally. Both shoulders showed a complete range of movements. Physical stamina was maintained. X-ray examination revealed that the 5^th rib, which was previously fractured, had returned to normal, albeit slightly deformed. The ribs still aligned normally. The cervical bones also aligned properly, although the wedge fracture at L-1 of the lumbar spine had caused a loss between 25% and 50% of the vertical height of L-1. There were degenerative changes between thoracic vertebra T12 and lumbar spine L-1 in December 2004, while no such changes were noticed in the x-ray examination in July 2004.

16. In Dr Tsoi’s opinion, the fracture of the Plaintiff’s 5^th rib had healed up satisfactorily and no further treatment was necessary, and the discomfort over the chest amounted to 1% permanent impairment of the Plaintiff’s whole person.

17. As regards the neck, the Plaintiff said that there had been slight pain in the neck prior to the accident, possibly because of degenerative changes to the cervical spine that naturally occurred with aging. The Plaintiff complained that the accident exacerbated the problem. There were a few tender points along the median and the bending of the neck was slightly restricted. The muscle and tendon might be suffering a pull injury. Dr Tsoi opined that the pain experienced by the Plaintiff during examination might be a combination of the residual pain arising from the pull injury to the soft tissue during the accident and the pain arising from degeneration of the cervical spine. The pull injury to the soft tissue was given a favourable prognosis with no further treatment required. The back pain and slight limitation on the bending of the back was assessed to constitute 3% permanent impairment of the Plaintiff’s whole person.

18. As regards the back, although the fracture at L-1 was discovered only subsequent to the accident, it should also be attributable to the accident. The Plaintiff also had a history of back pain, which was caused by natural degeneration of the lumbar spine, but the pain and tenderness in the middle of the back were mainly related to the compression fracture at L-1 and degeneration of the bone plate following external injury. The Plaintiff’s low back was stable, and no neurological defects were detected in his upper and lower limbs. The Plaintiff had made the maximal recovery from the injury and no further treatment was needed. However, the fracture at L-1 would still cause him intermittent back pain in future and he might have to take painkillers if necessary. The compression fracture at L-1 constituted 10% impairment of the Plaintiff’s whole person. The injuries to muscles and bones constituted a total of 14% permanent impairment of the Plaintiff’s whole person.

19. In respect of daily activities, Dr Tsoi opined that the discomfort in the neck and back would cause the Plaintiff additional inconvenience in his daily activities. The residual pain in the back would render him unable to walk for long distances. He would meet with difficulties in performing household chores (such as sweeping the floor, moving furniture and tidying up rooms) and making purchases at the market because he might be unable to carry heavy loads for an extended period of time. Dr Tsoi therefore recommended the Plaintiff to employ a part-time domestic helper to assist him in performing strenuous chores.

20. Apart from Dr Tsoi, the Plaintiff had also instructed an expert in neurosurgery to make an assessment of the Plaintiff. However, the Plaintiff did not accept the expert’s opinion and has not adduced his report as evidence.

21. At the appeal hearing, the Plaintiff was wheelchair-bound when he made submissions. In response to my inquiry, he said he was not on a wheelchair when he was discharged from hospital and made his way to the taxi with the help of a social worker, who did not apply for a wheelchair for him. He is currently on public assistance, although he has not applied to the Social Welfare Department for assistance in purchasing a wheelchair. The wheelchair he is using was given to him by a neighbour as a gift. It has to be pointed out at this juncture that none of the medical reports and assessment reports has stated that the Plaintiff suffers difficulty in walking or has to be put on a wheelchair as a result of the accident.

Items of claim

22. In his Statement of Damages, the Plaintiff sets out the particulars of his injuries, the treatment give to him, the degree of permanent disability and prognosis as follows:

(i)    The Plaintiff was hit by the front of the public light bus. The injuries included a 4-cm long laceration on his left forehead; multiple abrasions on his right forehead, cheeks, right hand and knees; swelling and tenderness at parts of his left chest and lower neck.

(ii)   The Plaintiff lost consciousness at once and gradually resuscitated with emergency treatment by the doctors.

(iii)  The x-ray films showed a fracture of the left 5^th rib. Computed scan revealed a small area of high density on the left parietal lobe, which was indicative of a contusive injury to the brain.

(iv)  The Plaintiff received treatment for 12 days at the Intensive Care Unit and the ordinary ward. Thereafter, his case was followed up by the Out-patient Department.

(v)   Subsequent x-ray films revealed a wedge fracture at the front of the L-1 section of the lumbar spine.

23. The Plaintiff describes the pain, suffering and loss of amenities suffered by him as follows:

At present the Plaintiff is still constantly disturbed by various sequelae, including: numbness and paralysis of the body and limbs, fatigue, back and neck pain, headache and dizziness, anxiety, distress and inability to concentrate, lapse of memory, loss of vision, loss of hearing, suicidal tendency, depression, getting tired easily, sleep disturbances, bradykinesia, lack of vitality, inability to lead a normal life, dementia, dysphasia, impotence, incontinence, myoclonia (convulsions) that happens in the early morning, and dysphagia, etc.

24. With respect to special damages, the Plaintiff, who was aged 64 at the time of the accident, pleads that, on the basis of various statistics including government statistics, his life expectancy should be 98. He states that he needs 24-hour care and attention of a nurse over the next 30 years, and on a monthly salary of $10,000 with year-end double pay, the amount required under this head is $3,900,000. He also claims $1,413,000 being the cost of employing a foreign domestic helper over the next 30 years. He further claims $3,218,000 being expenses (including food, accommodation and sundry expenses) for the Plaintiff, the nurse and the domestic helper over the next 30 years, calculated by reference to public assistance standards. The Plaintiff claims that the room in which he currently resides, with an area of 240 square feet, cannot accommodate the nurse and the domestic helper, and therefore he needs an apartment with a net area of 800 square feet in order to accommodate the Plaintiff, the nurse and the domestic helper. The apartment, the Plaintiff pleads, should also be equipped with a fitness room and a bathroom large enough for ingress and egress by a four-wheeled cart. The Plaintiff pleads that, on the figures provided by developers, the value of a second-hand apartment which meets the above requirements is $8,000,000.

25. Furthermore, the Plaintiff claims $11,000,000 being damages for sequelae such as loss of memory, impotence, incontinence and scars on the face and hands. The Plaintiff also claims $1,000,000 being provision for expenses of possible surgery in respect of the injury to the cervical spine, the 25% to 50% loss of vertical height of the lumbar spine, and the fracture and dislocation of the 5^th rib. Another sum of $70,000 is claimed in respect of surgery and equipment in respect of the sensory system. The Plaintiff also claims $500,000 being expenses of health products such as massage chair, massage bed, medicinal ointment and diapers, as well as $150,000 being travel expenses. The total amount claimed is therefore $29,251,000. He has conceded liability for contributory negligence to the extent of 10%, but as he is not legally represented, I have no idea whether this concession is appropriate.

26. In his Grounds of Appeal, the Plaintiff alleges that the Defendants, who have not taken issue with the amounts being claimed, are to be taken to have accepted those amounts. He further alleges that it was unfair for Master Kwan to transfer the case to the District Court, which meant a reduction in the size of the claim from over $20 million to less than $1,000,000. He also refers to newspaper reports of 6 traffic accident cases involving damages of over $10 million and submits that those cases are similar to the present case. However, the plaintiffs in those cases obtained substantial damages as they were paralyzed or sustained serious brain damage as a result of the accidents.

Transfer of case to District Court

27. The Defendants oppose the Plaintiff’s appeal. Ms Chan for the Defendants submits that Master Kwan was entitled to transfer the present case to the District Court. The cases of Hang Seng Credit Card Ltd v Tsang Nga Lee, HCA 13228/1999 and Wong Miu Kwan v FPD Savills Property Management Ltd, HCPI 1061/2003 are cited as references.

28. On the principles governing the transfer of cases from this Court to the District Court, Ms Chan refers to the observations of Suffiad J in paragraph 21 of his judgment in Wong Miu Kwan. There, Suffiad J said that, in determining whether a case is to be transferred from this Court to the District Court, apart from considering any employees’ compensation admittedly received by the plaintiff and any contributory negligence admitted by the plaintiff, the court or a Master should also take into account the following matters:

(a)     In the absence of abuse, a plaintiff should be entitled to frame his case in the manner that he wishes.

(b)     At an interlocutory stage, it would not be proper for the court or a master to view the plaintiff’s claim in the same way as it would be viewed at trial by weighing the different evidence or by believing or disbelieving some or all of the evidence. That exercise can only be carried out when all the evidence, cross-examination and submission has been heard, particularly where there are factual and/or other disputes between the parties, as for instance disputed expert opinion.

(c)     Accordingly, the plaintiff’s case on quantum as framed by him ought to be viewed at its highest when determining the proper jurisdiction where the case should be brought.

29. I respectfully agree with these general principles that Suffiad J enunciated. In my view, in personal injuries cases, the medical reports and expert assessment reports will normally describe the disability and pain suffered by the plaintiff, the medical treatment that he has been given, his progress of recovery, prognosis, any treatment to be given in future, the inconvenience to his daily life, and any sequelae or permanent disability. On the basis of the descriptions which are favourable to the plaintiff’s case on quantum and relevant decided cases, the court will be able to estimate the upper limit of damages for pain, suffering and loss of amenities that may be awarded to the plaintiff. From the descriptions in these reports, the court will also be able to assess the possible short-term and long-term effects of the injuries on the plaintiff’s working capacity and estimate the upper limit of damages for loss of earnings that may be awarded to the plaintiff. From these upper limits and the total amount of the claim for special damages, the court will be able to estimate the maximum amount of damages that may be awarded to the plaintiff. If this estimated amount does not exceed $1,000,000, the case should be brought in the District Court, and if the case has been brought in this Court, the Master should transfer it to the District Court.

Damages that may be awarded to the Plaintiff

30. Referring to the cases of Phoon Kai Wai v Wong Ka Chung, HCPI 1768/2003 and Teng Wei Yan v Kwok Kai Wing & Ors, DCPI 54/2005, Ms Chan submits that the maximum amount of damages that may be awarded to the Plaintiff herein will not exceed $1,000,000.

31. In Phoon Kai Wai, the plaintiff Mr Phoon met with a traffic accident on 9 June 2001 and sustained injuries including minor head injury, fracture of the right first rib, right clavicle, right distal radius and patella, deep laceration on the right thigh and lip laceration. He fainted after the impact but regained consciousness upon admission to the hospital. He underwent a series of operations and was transferred to Kowloon Hospital on 26 June 2001 for convalescence. He was discharged on 11 August 2001 and thereafter received follow-up treatment at the Orthopaedic Clinic of United Christian Hospital. Arthroscopy was performed on his right knee on 9 November 2001 and 15 September 2003. He also received intermittent physiotherapy and occupational therapy. He had also received treatment at the Psychology Clinic of Kowloon Hospital since 26 June 2001, whereas follow-up treatment at the Neurosurgical Department ended in August 2002. He was granted sick leave from 9 June 2001 to 10 June 2002. In its report of 10 September 2003, United Christian Hospital stated that all wounds were healed and fractures united and that the plaintiff could walk with a stick but could not squat with residual knee pain. In his assessment report, Dr Chung See-yuen, a psychiatrist, pointed out that the plaintiff was suffering from post-concussional disorder and depression. An orthopaedic specialist reported that there was muscle wasting on the plaintiff’s right arm; a 9-cm surgical scar on the volar site; mild muscle wasting on the right side of the lower limbs; a 18-cm laceration scar at the medial thigh, with local tenderness at middle; a 18-cm scar over the right patella, which would degenerate in future. The court held that the plaintiff’s injuries brought him within the “serious injury” category in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 and awarded him $500,000 as damages for pain, suffering and loss of amenities.

32. In Teng Wei Yan, the plaintiff Ms Teng met with a traffic accident on 17 June 2002. Upon arrival at the hospital, there was pain and tenderness on her right shoulder and left chest, and bruise and swelling on her left leg. She was also suffered fracture of the 5^th to 8^th ribs on the left posterior side with hemo-pneumothorax, and a fracture of the right clavicle. An emergency laparotomy was performed, which revealed hemoperitoneum due to a ruptured spleen. A splenectomy was then performed. After the operation, the plaintiff’s condition was complicated with pneumonia, and a bronchoscopy was done on 18 June 2002. The plaintiff was discharged after 11 days and then received follow-up treatment until 11 July 2002, when she still complained of pain over the right clavicle and left ribs. When she was examined by a specialist in January 2003, she complained that she was still suffering from left shoulder and chest pain, residual pain in the right shoulder, left abdominal pain around the scar, irregular and infrequent menstruation, and frequent influenza. When she was examined by another specialist in July 2005, she complained that there was still residual pain around the scar over the abdomen and also over the left chest, right shoulder pain triggered by carrying heavy objects with the right hand, and irregular menstrual pain. The court awarded her $330,000 as damages for pain, suffering and loss of amenities.

33. The pain and suffering of the plaintiffs in the above two cases was more serious than that of the Plaintiff herein. It follows that the damages that may be awarded to the Plaintiff for pain, suffering and loss of amenities should be lower than those awarded in the above two cases. Ms Chan’s estimate that the Plaintiff would not be awarded more than $300,000 under this head is in my view reasonable.

34. Ms Chan further submits that, assuming Dr Tsoi’s opinion that a part-time worker be employed for the Plaintiff is followed, the wages of such a worker is $50 per hour and, on the basis that the worker works 3 hours per day and 3 days per week, the annual expenses in this regard is merely ($150 x 3 x 52) = $23,400. As the Plaintiff was aged 64 at the time of the accident, Ms Chan suggests a multiplier of 8, which means that the damages under this head are $187,200. Assuming the Plaintiff should be awarded $20,000 as damages for miscellaneous items, the total amount of damages will only be $507,200. As the Plaintiff is on public assistance, he cannot be awarded damages for loss of earnings. The upper limit of the total damages payable to the Plaintiff is therefore way below $1,000,000. Even if Ms Chan’s estimate of the damages for hiring a part-time worker is on the low side, I cannot possibly increase the estimated damages under this head to more than $680,000 so that the case can be heard before this Court.

35. In his Statement of Damages, the Plaintiff pleads that, leaving aside deduction by reason of contributory negligence, the damages payable to him is $29,251,000. In my judgment, most of the Plaintiff’s claims are not substantiated. None of the medical and assessment reports that he has adduced states that he suffers from neurological problems. There is no reason for saying that he has difficulty in walking or has to use a wheelchair as a result of the accident. None of the medical and assessment reports states that he requires 24-hour care and attention or that he is unable to perform household chores so that he needs a live-in foreign domestic helper to help him out. There is accordingly no basis for his claim for damages in respect of the need for an 800 square feet apartment. Furthermore, none of the medical and assessment reports states that he suffers from sequelae such as memory loss, impotence and incontinence as a result of the accident. His claim for $11,000,000 in this respect is therefore also groundless. Even Dr Tsoi, the orthopaedic specialist instructed by the Plaintiff, commented that no further treatment would be necessary for the Plaintiff’s injuries arising from the accident. Hence there is also no basis for claiming $1,000,000 for future operation expenses. Finally, in respect of the sensory system and equipment, health products such as massage chair, massage bed and medicinal ointment, diapers and travel expenses, these are items that the Plaintiff claims that he needs, and there is simply nothing in the medical and assessment reports to support such a need.

Outcome of the appeal

36. The abuse of process that Suffiad J referred to in Wong Miu Kwan must, in my view, include a plaintiff’s act of making a claim which is grossly exaggerated and unsubstantiated. The Plaintiff’s claim for $29,251,000 in the present case is precisely such an act. Master Kwan was correct in disregarding the claim and transferring the case to the District Court.

37. Finally, I have to deal with the Plaintiff’s allegation that, as the Defendants have not raised any defence to the various heads of his claim, they must be taken to have accepted the sums that he is claiming. In paragraph 6 of the Defence, the Defendants have denied that the Plaintiff has suffered any of the personal injuries and related loss and damage as pleaded in paragraph 6 of the Statement of Claim and the Statement of Damages and have put the Plaintiff to strict proof of those injuries and loss and damage. The Plaintiff therefore cannot say that the Defendants have accepted the quantum of his claim.

38. On the above analysis and for the above reasons, there is no basis for the Plaintiff’s appeal. I dismiss the appeal and make an order nisi that the Plaintiff has to pay to the Defendants costs of the appeal. Unless any party hereto applies within 14 days for variation of the order nisi, the order nisi will become absolute upon expiry of 14 days.

39. Finally, I urge the parties to apply to a Master of the District Court to fix a date for the hearing of the Plaintiff’s application for interim payment.