HO HOI YUEN v. TSANG HO LUN

DCPI 1208/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1208 OF 2011

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ASSESSMENT OF DAMAGES

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Introduction

1. The plaintiff’s claim is for damages for personal injury, loss and damage arising out of the negligent driving of a car driven by the defendant on 14^th February 2009.

2. By consent, interlocutory judgment on liability was entered on 9 October 2012.  The only matter for trial is the assessment of damages.

The accident

3. In short, what happened was that the plaintiff was driving a van along Princess Margaret Road.  When he had stopped his van for the traffic light, the defendant, who was driving a car, failed to stop in time. The front of the car hit the rear of the van.  The plaintiff, sitting on the driver seat, was thereby injured.

Plaintiff’s case

4. The plaintiff was the only witness giving evidence in court. He said that because of the accident, he sustained injury.  He was taken by ambulance to the hospital and was discharged on the same day.  Since then, due to persistent pain and numbness, he was required to see doctors from time to time and had received physiotherapy treatment and occupational therapy.  He also required psychiatric treatment.

5. He was given sick leave for 828 days intermittently from 14 February 2009 to 15 July 2011. 

6. He said that since he was 16 years old, he started working for his family business by the name Man Kee (“Man Kee”).  In about 1999, he became the sole proprietor of Man Kee. Prior to the accident, Man Kee made a profit of $200,000 to $300,000 per year.  He said that Man Kee had other earnings derived from its business in China.  He would withdraw $10,000 per month as income.  Man Kee’s business included trading and maintenance of sewing machine. 

7. He described that due to the accident, he suffered from persistent pain and numbness, limited range of movement of neck, shoulder and the lower back, unable to carry heavy things and had frequent insomnia which exacerbated his other problems including particularly psychiatric problem.  He tried to have sex with her girlfriend but unable to do so since the accident. 

8. As he could not carry out heavy work, he was unable to repair the machine sold and that affected his business.  At last, Man Kee closed down.  Since about February 2013, he started working as a security guard and is now able to earn more than $10,000 per month.

9. In support of his claims, the plaintiff also relied upon all the documentary evidence and particularly the medical records, sick leave certificates and the opinion of Dr Tio Man Kwun Peter (“Dr Tio”) in the joint medical report.

Defence case

10. The defendant did not call any witness to testify in court but depended heavily upon the opinion of Dr Chun Siu Yeung (“Dr Chun”) in the joint medical report.

The issue

11. The most controversial issues in this case are the income of the plaintiff and the extent of the injury substantiated by him.  Credibility and reliability of the plaintiff became particularly important in this case.

Applicable Legal Principle

12. In assessing the plaintiff’s evidence, I bear in mind the observation of DHCJ Thomas Au (as he then was) in Lee Fu Wing v Yan Po Ting Paul[2009] 5 HKLRD 513 at paragraph 53 :-

“(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witness.”

13. Thislegal principle is well settled (see also Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439).

Plaintiff’s credibility

14. The plaintiff’s evidence, in at least 4 areas, was incredulous.

Injuries after the accident

15. In the witness box, the plaintiff testified that after the accident, he was painful over his chest, hand, leg, neck and shoulder and was dizzy at that time.  Then he told the same to the ambulance man and the doctor attending him on that day.  His head was also bandaged by the ambulance man. He also claimed that when the ambulance man took his blood pressure thrice, the reading exceeded 200 on all occasions.

16. His version in the witness box, however, was not consistent with the contemporaneous medical records.  According to the note of the A&E department of Queen Elizabeth Hospital (“QEH”), the plaintiff was simply complaining for neck and shoulder pain.  BP, namely the blood pressure, was 136/98 at the triage station.  The bandage, if any, must be obvious to the doctor attending the plaintiff. However, there was no record showing that the plaintiff was bandaged. According to the medical certificate, the plaintiff was suffering from sprain neck only.  I find the plaintiff exaggerated his injury in the witness box.

Sex with girl friend

17. In the witness box, the plaintiff testified that due to the pain resulted from the accident, despite he wanted and tried to have sex with his girlfriend, he was unable to do so.  He also confirmed that he did not have sex for 6 years.  When he was asked if he had ever complained to any doctor he attended over the years, the plaintiff replied that he complained to Dr. Tso.  In this case, there was only one doctor with surname “Tso”, namely Dr Tso Kwok Chu of Western Psychiatric Center.

18. Having read all the medical reports and particularly the records complied by Dr. Tso, I was unable to find any reference that the plaintiff had ever complained that he suffered any problem in having sex with his girlfriend after the accident.  It is contrary to any logic that Dr Tso (or any doctor at all) would miss it out in the medical records had the plaintiff really made such complaint. Further, in the plaintiff’s witness statement, he did not forget to mention that he had sex with his girl friend some 7 to 8 times a month prior to the accident but dropped to once a month after the accident.  If he really had problem having sex with his girl friend after the accident as alleged in the witness box, I cannot understand why he made a different version in his witness statement.  I heard no or no reasonable explanation from the plaintiff at all.  I find the plaintiff had a strong propensity in exaggerating his injury.

Earnings of Man Kee

19. According to the plaintiff’s witness statement, Man Kee had an annual turnover of $500,000 to $1,400,000 and after deducting loans, rent, labour and miscellaneous expenditure, made an annual profit of about $200,000 to $300,000.  However, his version as stated in the witness statement was totally different from the documentary evidence.

20. Man Kee’s balance sheet for the financial year of 2005 to 2006 showed a turnover of about $600,000 and a loss of $102,795.  For the financial year of 2006 to 2007, according to its balance sheet, the turnover was about $600,000 and a loss of $97,303.51.  For the financial year of 2007 to 2008, Man Kee’s turnover dropped to about $355,000 and suffered a loss of $167,500.  In the witness box, the plaintiff tried to explain that Man Kee earned lots of money from mainland China.  However, that allegation was not only first raised during trial but also lack of supporting documents.  I do not believe that Man Kee was running at a profit.

21. There was no record for payment of Mandatory Provident Fund to substantiate the plaintiff’s contention of his income.  The available records from the Inland Revenue Department show that the plaintiff was paid $120,000 in both financial years from 2005 to 2006 and from 2006 to 2007 and was paid $108,000 for the financial year from 2007 to 2008.  In other words, these records only substantiate the plaintiff received $9,000 or $10,000 per month from Man Kee up to the financial year ended 31^st March 2008.

22. However, the plaintiff, or Man Kee, simply did not file any tax return to the Inland Revenue Department during the financial year of 2008 to 2009.  Even assuming that the plaintiff was unable to carry out the business since the accident, Man Kee should have operated for over 10 months in that financial year.  Why wasn’t any tax return filed for that financial year?  The plaintiff, during cross-examination, tried to explain that he received a letter from the Inland Revenue Department that he was not required to do so if Man Kee’s turnover was below $500,000. 

23. At the end, there was no documentary evidence to support the plaintiff’s contention that he received any income at the time of the accident from Man Kee.  I find that the plaintiff was inflating the profits of Man Kee in his witness statement in order to justify that he could receive $10,000 per month as income from Man Kee at the time of the accident. 

Plaintiff’s latest income

24. The revised statement of damages dated 4^th August 2014 clearly stated that the plaintiff was working for a property management company with a monthly earning of $7,440 at that time.  His pre-trial loss of earnings was calculated based on that figure.  The plaintiff, on the basis of monthly earning at $7,440 per month, further assumed that his salary would only increase to $8,500 per month for the calculation of his future loss of earnings.  The whole picture presented by the plaintiff at that time, namely, on 4^th August 2014, was that he earned less than $10,000 per month and could not have earned more than that sum in future.

25. However, upon cross-examination by reference to a document known as “Details of Employment in Security Work”, the plaintiff admitted that he had already started working for Protech Property Management Limited (“Protech”) on 1^st August 2014. At that time, his basic monthly salary was $12,300 plus a monthly diligence allowance of $300.  When he was asked why he failed to disclose his actual earnings in the revised statement of damages, he tried to exonerate himself through his ignorance in law and insisted that he had duly instructed his solicitor, who should be held responsible to calculate the claims amount for him.  I do not accept his explanation.  He knows English, though not very good.  He signed the statement of truth.  I find him intentionally not to disclose his earnings and purposively stated a lower income in the revised statement of damages.

The overall credibility of the plaintiff

26. Taking all the above into account, I find that the plaintiff was not a reliable witness.  He was prepared to twist and boost his evidence and even make up story to suit his purposes.  He is a person who will say anything when it is convenient for him. I shall treat his evidence with extreme sceptic.

Plaintiff’s income at the time of accident

27. I now assess the income of the plaintiff prior to the accident. At that time, his income, if any, must be derived from Man Kee.  By reference to the documentary evidence, Man Kee was a business suffered from a loss for at least 3 consecutive years. As I find the plaintiff was not a reliable witness, I reject the plaintiff’s allegation that Man Kee would be able to earn a lot from its China business. 

28. On balance, I find Man Kee was operating through borrowing loans from bank because the plaintiff only elected to disclose 2 balance sheets of Man Kee and both showed that it was required to pay interests to bank due to overdraft.  That further reinforces my finding that Man Kee could not have made any profit at all.

29. Taking all evidence into account, I find that Man Kee was operating at a loss for a long time before the accident. The plaintiff alleged that his late father had endowed him $500,000 so that he can withdraw $10,000 per month in case the business of Man Kee was not good enough.  I reject that allegation which was first raised during trial and was not supported by any document. Also, even if the plaintiff inherited a sum of money from his father, it should be a gift and had nothing to do with the plaintiff’s income.

30. Save and except those with documentary support, I do not accept the plaintiff’s evidence about his income. I find that the plaintiff was only able to receive $9,000 to $10,000 per month from Man Kee up to the end of the financial year from 2007 to 2008.  Since April 2008, Man Kee’s business could not have supported the monthly income of the plaintiff.  Man Kee’s business would only generate loss to the plaintiff.  I find the plaintiff had no income at the time of the accident.

The injury

31. I now turn to assess the extent of the injury.  The plaintiff was born in Hong Kong in 1958 and was 50 years old at the time of the accident.  He was taken to QEH after the accident and was diagnosed as suffering from sprain neck.  He was discharged and given 2 days sick leave.  2 days afterwards, he went back to the QEH and complained for persistent pain round his shoulders, neck and waist and felt numbness in his head.  He was followed up at QEH and was subsequently referred to Tang Shiu Kin Hospital for physiotherapy.  He received a total of 37 sessions of physiotherapy treatment.

32. By reason of feeling pain, he repeatedly attended the Hong Kong Jockey Club General Outpatient Clinic and the Ap Lei Chau General Outpatient Clinic and was given pain killers and sick leave certificates in each and every occasion after attending the said clinics.

33. He was referred to the Queen Mary Hospital for orthopaedic treatment and undergone x-ray examination of his waist and neck.  No fracture was found.

34. In 2010, he received MRI at Queen Mary Hospital.  The MRI showed protrusion of his lumbar discs, narrowing of the sciatica and resultant lower back pain.

35. In July 2010, he started attending the Western Psychiatric Centre for treatment.  During trial, he still had residual pain.

36. The plaintiff was examined jointly by Dr Chun and Dr Tio on 19 December 2011.  Both of them are specialists in orthopaedics and traumatology and their expertise were not in dispute.  They had different opinion about the plaintiff’s injury resulted from the accident.  As both of them did not attend court, I have to resolve their differences by evaluating the basis upon which their opinions were made.

37. Dr Chun opined that the injury suffered by the plaintiff should be very minor.  He said that the low back pain of the plaintiff was unrelated to the accident. Judging from the degree of degenerative changes, Dr Chun did not find it strange that the plaintiff had prior neck pain and/or low back pain.  Dr Chun further said,

“[The plaintiff’s] x-ray and MRI examination of the cervical … … and lumbar spine showed significant degenerative changes which were NOT caused by the alleged traffic accident but must be pre-existing. He had pre-existing symptomatic lumbar spine degeneration.” (§99)

38. He therefore concluded that the plaintiff had exaggerated his pain out of proportion to his initial reported clinical presentation. The loss of earning capacity was 0.5% and the reasonable sick leave should not be more than 4 weeks.

39. Although Dr Tio agreed the plaintiff had pre-existing cervical and lumbar spine degeneration prior to the accident and the radiological findings were considered to be pre-existing rather than due to the accident, he still opined that the neck pain of the plaintiff was a triggering factor in producing the back pain symptoms of the plaintiff because :

“there was no evidence to suggest that [the plaintiff] was having neck pain prior to the alleged accident.” (§101)

40. He also regarded that the sick leave given was reasonable and assessed the plaintiff’s loss of earning capacity should be 5%.

41. Having considered all the evidence, I consider that the opinion by Dr Chun matches the medical evidence both in terms of the history and symptoms.  When the plaintiff was first examined by the doctor at the A&E department of QEH, he suffered only minor injury to his neck and shoulder.  There was no neurological deficit and no fracture was sustained.  Taking all the medical records into account, there was no objective evidence of any neurological deficit on physical examination.

42. Pain is always subjective. As I find the plaintiff is not a reliable witness, his subjective complaints are also unreliable.  Dr Tio, despite agreed with Dr Chun that there was no objective sign of any neurological deficit, stated in the report that “during this examination, [the plaintiff] was still complaining of neck and back pain”. Dr Tio’s opinion in this regard was that : “though it is true that most musculo-skeletal pain should be intermittent in nature, it is not uncommon for patients to be bothered by psychiatric or psychological disorders”. Obviously, Dr Tio simply based his finding upon acceptance of the plaintiff’s allegation without any objective and critical analysis.

43. According to the joint medical report, the plaintiff, in giving his past medical history, denied any prior injury to his neck and back (§15).  However, based upon the available medical documentation, it was discovered that the plaintiff had prior low back pain, probably related to a traffic accident in 2003.  Taking into account the overall credibility of the plaintiff, I do not accept that he was free from neck pain prior to the accident.  Therefore, Dr Tio’s assessment is unhelpful because it appears that he accepted that the plaintiff did not have any neck pain before the accident.

44. Furthermore, Dr Tio was simply stating that the sick leave “is considered to be reasonable and appropriate” without any explanation.  I agreed with Dr Chun’s opinion that the plaintiff was “sick leave shopping”. I do not oversight the fact that the plaintiff was granted sick leave over 800 days intermittently.  However, it is indisputable that the plaintiff was not an employee at the time of the accident and sick leave certificate served no particular purpose to him, except to substantiate the present claim.  According to the record, 5 weeks after the accident, he started “obtaining” sick leave certificates by seeing doctors in different clinics upon expiry of the sick leave period (basically on a weekly basis) from March to June 2009 due to pain.  In Choy Wai Chung v Chun Wo Construciton & Engineering Co Ltd., CACV 172/2004,Rogers VP said,

“the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.” (§9)

45. In Tam Fu Yip v Sincere Engineering & Trading Co. Ltd. [2008] 5 HKLRD 210, Le Pichon JA said,

“Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.” (§18)

46. Mr Lim, counsel for the defendant, submitted that the plaintiff was merely suffering from minor neck injury due to the accident and would be able to resume works (if any) after 4 weeks.  Mr Clough, counsel for the plaintiff, submitted that the plaintiff did not exaggerate his injury and all the sick leave are reasonably given by the doctors.

47. Taking all the evidence into account, in particular the opinion by Dr Chun, I take the view that the plaintiff was injured to his neck and shoulder due to the accident and was only required to take 4 weeks sick leave.  His present complaint in court for his pain, if exist, are not attributable to the accident.

PSLA

48. I reject the plaintiff’s allegation that he could not have sex with his girl friend for over 6 years.  That allegation was not only in direct contradiction with his own witness statement but also not recorded in Dr Tso’s medical report.  I find that he exaggerated his pain and suffering.  Although the plaintiff attended psychiatric treatment, the first consultation note by Dr Tso clearly stated that the plaintiff was “worrying about his business, financial” and “mood pervasively low as well since father died (90+) in Jan 2010”.  I do not accept that the plaintiff’s psychiatric condition related to the accident.

49. Still, I do accept that the plaintiff was injured due to the accident and PSLA should be awarded accordingly. 

50. For PSLA, Mr Lim suggested the sum of $80,000 whereas Mr Clough submitted that $200,000 should be reasonable.

51. As I find the plaintiff exaggerated his injuries, the comparables suggested by Mr Clough were not unhelpful.

52. Among the comparables suggested by Mr Lim, PSLA of $60,000 was awarded in Fan Jian Hui v Chan Hak Man, DCPI 2095/2008, In that case, the victim was suffered from tenderness over neck and both lower legs, as well as head injury and has residual neck pain and the range of movement of his neck was reduced and was given sick leave for about 5½  months.

53. In the case Li Ting Fai v Woo Chi Keung, DCPI 807/2007, the victim sustained neck injury in the form of paraspinal muscular tenderness with reasonable sick leave for 3 to 6 weeks.  He was assessed as a mild case of whiplash neck injury affecting soft tissue only. PSLA was assessed at $90,000.

54. Each case must depend on its own facts.  I take the view that a fair and reasonable award in this case should be $90,000 for PSLA.

Loss of past earnings

55. Based upon the documentary proof, I accept that in March 2009, Man Kee employed a Mr Ma who worked for only 1½ months. In other words, Man Kee was still in operation in March and April 2009. Without any supporting document to substantiate if Man Kee was operating at a profit or a loss at that time, I can only make reference to the past record of Man Kee, which was operated at a loss for 3 consecutive years.  Accordingly, I find that Man Kee was still operating at a loss and generated no income to the plaintiff at the time of the accident.  However, having accepted the plaintiff was required to take a sick leave for 4 weeks, I consider it appropriate to award a reasonable sum for the plaintiff’s pre-trial loss of earning.  Probably, Mr Ma was employed to substitute the work of the plaintiff at that time.  Mr Ma was paid a total of $7,600 for his employment with Man Kee in March 2009.  Mr Lim conceded that he should be bound by the pleadings and submitted that $9,000 would be appropriate.

56. I award $9,000 for the plaintiff’s pre-trial loss of earnings.

Future loss of earnings

57. Mr Clough, sensibly, conceded that the plaintiff was earning more in his current job than the alleged income in Man Kee and therefore would not pursue any claim for future loss of earnings. 

Loss of earning capacity

58. The plaintiff claimed for loss of earning capacity for $80,000.  I find no reason to suppose the plaintiff would be disadvantaged in obtaining employment as a security guard in the future, or that that employment is any more precarious than that of operating his own business.  I decline to make any award under this head.

Special Damages

59. The plaintiff claimed for towing fee of $485 and repairing fee of $13,880 for his van.  Mr Lim agreed.

60. I would only award medical expenses and traveling expenses reasonably incurred for 4 weeks since the accident.  Mr Lim, after adding up all the receipts, submitted that $1,000 plus $1,112.20 would be correct. I agree.

61. In the absence of receipt and justification for the expenses of tonic food, I would not allow any award under this heading.

62. The total sum for special damages would then be $16,477.20.  I would round it up and award special damages for $16,500.

Conclusion

63. In summary, the plaintiff is entitled to the following compensation:-

		HK$
(A)	PSLA	$90,000
(B)	Pre-trial loss of earnings	$9,000
(C)	Loss of earning capacity	nil
(D)	Future loss of earnings	nil
(E)	Special damages	$16,500
	Total:	$115,500
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Interest

64. There will be interest on general damages at 2%p.a. from date of writ to the date of this assessment and on special damages at half judgment rate from date of accident to the date of this assessment.

Costs

65. Costs follows event.  I therefore decide that there will be an order nisi for costs of this action to the plaintiff to be taxed if not agreed with certificate for counsel.  This order nisi becomes absolute 14 days after today unless a party has applied to the court for varying the order.