TONG SIU WAI v. POON WING FU

HCPI 44/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 44 OF 2010

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BETWEEN

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J U D G M E N T

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1.  On 1 October 2008, the Plaintiff was injured in a traffic accident. He brought this action to recover his loss and damages. Judgment on liability has been entered against the Defendant and the action is set down before me for assessment of damages.

The Accident

2.  According to the witness statement of the Plaintiff, he was then standing at the rear of his car when the Defendant reversed his car to hit against the Plaintiff.  As a result, the Plaintiff was trapped between the two cars.  He hit his head against the boot of his car, fell down on the ground and felt dizzy.  His lower back, left knee and head were injured.

The Injuries and Treatment

3.  The Plaintiff was taken to the A & E Department of Alice Ho Miu Ling Nethersole Hospital (“Nethersole Hospital”) for initial treatment.  He was subsequently transferred to the A & E Department of Prince of Wales Hospital (“PWH”) and was admitted into the neurosurgical Department for further treatment and attention.  He stayed in PWH for 8 days from 1 October 2008 to 8 October 2008.  During his stay in the hospital, he was also treated by the Physiotherapy Department and Department of Orthopaedic.

4.  After discharge from PWH, the Plaintiff received follow-up physiotherapy treatments at the physiotherapy department of Nethersole Hospital for a total of 24 sessions over a period of 6 months.  He was granted sick leave from 1 October 2008 to 8 April 2009.

The Earning of the Plaintiff before the Accident

5.  The pre-accident earning of the Plaintiff is in dispute.  According to the record of the Inland Revenue Department disclosed by the Plaintiff, for the period from 1 April 2003 to 20 February 2007, the Plaintiff was working for one Long Way Transportation Limited as a driver. Since leaving Long Way Transportation Limited on about 20 February 2007, there is no documentary record of his earning.  And according to the tax return filed by the Plaintiff with the Inland Revenue Department for the years 2007/08 and 2008/2009, he has not declared any income.

6.  According to the Plaintiff, before the accident, he was employed by Ever Best Decoration and Engineering Company as a decoration worker.  His duty included painting, plastering, and moving of building wastes.  He had a regular income and he used to work 26 to 28 days a month earning HK$650 per day; and in the Revised Statement of Damages, the Plaintiff used the figure HK$16,900 as his monthly earning to assess his loss.

7.  On his income before the accident, the Plaintiff has not produced any documentary proof except a copy Form 9 presented to the Social Welfare Department and the tax returns.  The Form 9 was chopped with the chop of Ever Best Decoration and Engineering Company.  It confirmed that his daily wages is HK$650 with no information on his monthly earning.

8.  Mr. Leung, Counsel for the Defendant had cross-examined the Plaintiff at length on his income before the accident.  It is not disputed that he signed on all the tax returns.  Initially, the Plaintiff agreed with Mr. Leung that the information in the tax returns was correct.

9.  It was pointed out to him that for financial years 2007/2008 and 2008/2009, he had declared no income.  The Plaintiff agreed initially that he had no income and later changed his evidence by saying that he did have income for 2007/2008.  He also disagreed that he had no income for 2008/2009.  He explained that he was paid cash.  He was advised by some friends that he did not have to report for tax as he would not be liable for salary tax.

10.  In closing, Mr. Leung submitted that the Plaintiff’s flipping of evidence in the witness box on this issue and his explanation for omitting to declare his true income to the Inland Revenue Department cast a great doubt on his credibility.

11.  Mr. Leung also cross-examined the Plaintiff on his relationship with Ever Best Decoration and Engineering Company.  According to the Plaintiff, his relationship with the sole proprietor Mr. Siu was good.  Mr. Leung questioned the Plaintiff why he did not ask Mr. Siu to give evidence or to provide some form of certification.  The Plaintiff said his relationship with Mr. Siu turned sour when he discovered that the Plaintiff had not fully recovered from the accident.

12.  I would first deal with the issue of the pre-accident earning of the Plaintiff.  Miss Lee, Counsel for the Plaintiff submitted that there the said Form 9 is documentary evidence supporting his daily earning of HK$650.  She submitted there is no real challenge that before the accident of the Plaintiff that he has changed his job from a driver to decoration worker.  There is no evidence to suggest that the Plaintiff is a lazy person.  His evidence that he worked 26 to 28 days is genuine.

13.  The Defendant is prepared to accept that the Plaintiff was working before the accident.  He only disputes his earning.  On his earning from Ever Best Decoration and Engineering Company, in particular the number of working days, I only have oral evidence of the Plaintiff.  But his oral evidence conflicted with his tax return provided to the Inland Revenue Department for the years 2007 to 2009.

14.  The issue on his pre-accident earning must turn on the credibility of the Plaintiff.  In response to cross-examination by Mr. Leung, I agree that the Plaintiff is flipping in his evidence when asked why he had not reported his increased income.  Further, the Plaintiff seeks to explain why he has not reported his income by saying that he has been told by friend that he did not need to pay tax.  But in previous years, when the Plaintiff is earning about HK$100,000 to HK$120,000 a year, he has to pay a small amount of tax and the Assessment Notice has been produced in the agreed bundle.  If he has monthly earning around HK$17,000, which means his annual earning is more than his previous years’, he must know that he has to pay tax, and have to pay more tax.  What he said that he was “advised” by others that he did not have to pay tax is unbelievable.

15.  Further, when Mr. Leung cross-examined the Plaintiff on how he kept his income, as the income is not apparent from his bank accounts, the Plaintiff said he kept his money at home.  This is quite unusual in a city like Hong Kong.  It is more convenient to have the money kept at bank.  This is an attempt by the Plaintiff to explain why he has no record of his earning before the accident.

16.  It is the submission of Mr. Leung that Mr. Siu is a key witness in this case on the earning of the Plaintiff.  If the Plaintiff fails to call a material witness, this is a matter I should take into consideration in assessing the credibility of the Plaintiff.

17.  I believe the legal principle cannot be disputed.  (I only need to refer to the judgment of Mr. Justice Cheung JA in Ngai Chu v. Lau Pong Chun trading as Yau Pong Construction CACV402 of 2004).  I agree with Mr. Leung that Mr. Siu or his account staff is a material witness.  I do not accept the explanation of the Plaintiff that he does not call Mr. Siu because their relationship turned sour.  This is an appropriate case to draw adverse inference against the credibility of the Plaintiff.

18.  Taking all the above matters into consideration, I do not believe the evidence of the Plaintiff that he earned about HK$17,000 per month before the accident.  Given the concession of the Defendant that the Plaintiff worked as a decoration worker, and he would be earning about the same income as a driver, I would assess his income with reference to the proved income from the tax returns.  According to the tax returns, the Plaintiff had been earning slightly more than HK$10,000 per month.  Miss Lee asked me take into consideration inflation and increase in salary.  I assess his pre-accident earning at HK$11,000 per month, which represent about 17 days’ work at $650 a day.

19.  Equally, for his post-accident earning, the Plaintiff has not produced any documentary proof.  But I would deal with this issue after considering the medical evidence.

20.  I shall now move on to consider the loss and damages of the Plaintiff as a result of his injury.  These include his pre-trial loss of earning, post-trial loss of earning, and loss of working capacity.

Plaintiff’s evidence and Medical evidence on his Injuries

21.  According to the evidence of the Plaintiff, after the accident, he often had headache.  The injured area was painful causing him to suffer from insomnia.  He could walk slowly but could not run. If he walked for long period of time, his left knee would be painful.  And he could only walk a few steps of staircase.  After the accident, he had to stop all vigorous sports, such as football or swimming.  He had to use painkiller to reduce the pain.

22.  The Plaintiff said after the accident, he continued to work as a decoration worker for Ever Best Decoration and Engineering Company.  However, due to his injuries, he could only work a few days per month, and he could not carry out any heavy works.  In particular, the injury caused him headache and dizziness.  He could not work on top of ladder, such as to paint the ceiling.  His daily wages was reduced to HK$300 to HK$350.  After the accident, his monthly earning was about HK$3,000 to HK$4,000.

23.  The Plaintiff was 24 at the time of the accident and he is 27 on the date of assessment.  He said he would work until 65 if not for the accident.

24.  According to medical notes of PWH prepared on 29 June 2009, it is recorded that the lumbar spine pelvis and left knee did not reveal any fracture.  He was able to walk with a stick on discharge, 7 days after the accident.  Out-patient physiotherapy was offered.  When seen on 7 January 2009, the Plaintiff complained of persistent low back pain and left knee pain and required a stick to walk.  There was also persistent headache.  On examination, the range of movement of his back was remarkably limited by pain. There was diffuse tenderness over his lower back, particularly the paraspinal region.  There is generalizing weakness over his left lower limb mainly due to back and knee pain.

25.  The Plaintiff received physiotherapy treatment for 6 months.  The Plaintiff was given sick leave up to 8 April 2009.

26.  Two fields of medical evidence are adduced.  The joint orthopaedic experts’ report prepared by Dr. Bong Shu Chun and Dr. Lam Yan Kit dated 3 November 2009, and the report by Dr. Edmund Woo, a neurologic expert jointly appointed by the parties dated 25 September 2010 are adduced without calling the makers.

27.  I refer to the joint orthopedic experts’ report.  Paragraph 4 set out the summary of the Plaintiff’s injury as recorded in the medical notes of the treating government hospitals.  After the injury, the Plaintiff showed no lower limb weakness or numbness.  There was no skull fracture and no hemorrhage.  There was no fracture or dislocation of left knee.  There was no fracture of lumbar spine.  And range of movement of left hip and knee were full.

28.  According to Dr. Lam, the Plaintiff has suffered from: -

(a)     soft tissue contusion injury to low back;

(b)     contusion injury to left knee; and

(c)     head injury.

29.  Dr. Bong agrees that the injuries sustained are compatible of being crushed in between two cars at low speed in a parking lodge.

30.  During the joint examination by the orthopaedic experts, the Plaintiff complained of low back pain radiation to buttock area and back stiffness.  He told the experts that the pain could be partially relieved by drugs and analgesics tapes.  He could climb 1 or 2 flights of stairs without problem but could not walk fast or run due to back pain.

31.  Having recorded the complaint of the Plaintiff of low back pain and back stiffness, Dr. Bong recorded that physical examination of back show tenderness over whole lumbar spine and sacrum with paraspinal muscle spasm.  The range of movement was very limited.  Examination of lower limb showed no focal neurological deficit.  X-ray of lumbar spine showed loss of lumbar lordosis suggestive of muscle spasm.  Left knee pain increased with exertion and squatting.  Physical examination of left knee showed mild tenderness over medial side of left knee.  The range of motion was full.  No sign of ligament laxity was noted.

32.  It is the opinion of Dr. Lam that the Plaintiff demonstrated marked limitation in low back movement during physical examination.  He commented that such back stiffness was very uncommon under mild back contusion injury and it was not consistent with the examination finding in the physiotherapy report.  Under such circumstances, symptom magnification should be considered.  On the other hand, the examination conducted during this assessment detected muscle spasm over lumbar paraspinal muscles and the x-ray loss of lumbar lordosis which is consistent with paraspinal spinal muscle spasm.  Hence a certain degree of genuine back pain and stiffness was present during this assessment.

33.  Dr. Lam opined that the examination showed mild left knee weakness and left mild muscle wasting, the range of motion was full and no ligament laxity was detected.  The left knee symptom is consistent with the diagnosis of the accident.

34.  Dr. Lam opined that the Plaintiff’s back and left knee condition as a result of the accident is found to be stable during the assessment.  Further conservation treatment is unlikely to give significant improvement and therefore not recommended.  Dr. Bong agreed.

35.  As far as the Plaintiff’s complaint of headache, both experts commented it is beyond the scope of orthopedic surgery.  I shall consider the opinion from Dr. Woo later.

36.  Both Dr. Lam and Dr. Bong agreed that there is some residual pain on the back and on the left knee of the Plaintiff.  Dr. Lam assessed that the pain is accountable for 4% of personal impairment.  And Dr. Bong assessed the permanent impairment due to pain at 5%.  However, both doctors considered that the Plaintiff should be able to return to his previous job as an internal decoration worker.

37.  As far as sick leave is concerned, Dr. Lam opined that the sick leave from 1 October 2008 to 8 April 2009 is within reasonable limit.  Dr. Bong also agreed that the sick leave is reasonable.

38.  The Plaintiff was examined by Dr. Edmund Woo on 21 September 2010.  According to Dr. Woo, on examination, the mood of the Plaintiff was neutral with no evidence of any anxiety or depression.  Mental state examination showed normal cognitive functions.  Segmental examination showed normal fundoscopy, visual fields and extraocular eye movements.  There was no nystagmus, not even on rapid changes in body positions.  His neck was supple with a full range of movement; there was no paracervical muscle spasm.  In the limbs, there were no focal motor or sensory deficits.  All deep tendon reflexes were normally present and symmetrical.  His co-ordination, gait and station were normal.

39.  According to Dr. Woo, the Plaintiff had at most a mild head injury in October 2008.  He had only a momentary loss of consciousness.  The duration of post-traumatic amnesia was negligible.  There was no radiological evidence of any skull fracture or parenchymal brain damage.

40.  As a result of the head injury, Dr. Woo agreed that the Plaintiff has residual headache and non-specific dizziness, consistent with the diagnosis of a mild post-concessional symptom.  There is no cognitive, vestibular or physical deficit.  The post-concessional symptom accounts for at most 1% impairment of the whole person.  Dr. Woo opined that from neurological perspective, the Plaintiff should be able to resume his pre‑injury occupation as an internal decoration worker with no loss of earning capacity.

41.  Surveillance video (which I would refer to later) had been taken of the Plaintiff on various dates and those taken on 7 October 2009 and 8 October 2009 had been presented to Dr. Woo for his comment. For some reason, the Defendant has only disclosed the surveillance reports to the Plaintiff, but these videos had not been disclosed to the Plaintiff. Before I hear the assessment, the Plaintiff objects to the playing of the video in court.  Having adjourned the matter, Ms. Lee indicates that if the video have to be produced, she would have to take further instruction.  Adjournment is inevitable.  In the end, the Defendant elects not to adduce the video in court and would only rely on two reports prepared by the surveillance agent which has been agreed to be produced.

42.  Accordingly, I do not consider the comment of Dr. Woo on the surveillance video.  And when I am reading the rest of the report of Dr. Woo, I caution myself if any of his opinion could be based on his viewing of the video, which I see none.

The Surveillance Reports

43.  Surveillance reports have been obtained against the Plaintiff for two periods of time, one in October 2009 and the second in September 2010.  As explained, I do not have the benefit of seeing the video. The most helpful information in these reports are the photographs taken of the Plaintiff.

44.  The photographs in the Reports showed on various occasion, the Plaintiff had returned to his daily activities, including working as a worker.  And he had to carry out works including carrying building materials.  There were series of photographs showing that the Plaintiff could walk up or down staircases unassisted on different days, and without the need to hold onto any rails.

45.  On cross-examination, the Plaintiff admitted that he was the person appearing in all these photographs.  And he described in his re-examination his ability to climb staircase to be normal, in conflict of evidence he could only climb a few stairs.  Mr. Leung submitted that the Plaintiff had exaggerated his injury.

Discussion and Findings

46.  For the initial period of sick leave, the Defendant concedes liability.  This tally with the opinion of the orthopedic experts that a sick leave of about 6 months is reasonable.  It is not clear from the evidence when the Plaintiff be return to work.  Sick leave certificates for a total of 190 days have been produced.

47.  It is not clear from the evidence from the Plaintiff when he has returned to work.  According to the Revised Statement of Damages, he has no further sick leave after 8 April 2009.  He has defaulted medical appointment with PWH and his sick leave was terminated.  He only sought medical treatment himself, including oral analgesics, analgesics tapes and physiotherapy treatment on a need-to basis.  He told the orthopaedic experts that he had returned to have part-time work in mid-September 2009.

48.  It is the case of the Plaintiff that he could not resume his pre-accident job.  He could only work 3 to 4 days a month earning about $1,800 to $2,400.  The burden rest on the Plaintiff to prove that he could not return to his pre-accident work.

49.  Looking at the opinion of the two orthopedic experts, it is quite clear that medically speaking, the Plaintiff could return to work as an internal decoration worker.  I see no reason to doubt their conclusion.  And Dr. Woo also commented that the Plaintiff could return to his pre-accident work.  There is no suggestion that he is wrong.

50.  It is the evidence of the Plaintiff that he could not return to work due to his pain and he suffered a significant loss of working capacity.  He relies on his own evidence and his credibility is in issue.

51.  The credibility of the Plaintiff is very much in doubt.  As I analysis above, he has not been honest to the Inland Revenue Department in declaring his income.  And his evidence in Court on his income is flipping.

52.  When he makes his witness statement he said he could not walk for long.  He also said he could only climb one or 2 steps of stairs.  If what he said is true, he could not even have been able to walk up and down the stairs at shown on the photographs in the report.

53.  I conclude that the Plaintiff is not a reliable witness.  I do not believe his evidence that he could not return to pre-accident job because of his pain.  I adopt the opinion of the experts and conclude that the Plaintiff could resume his pre-accident work.  I also adopt the conclusion of the experts that there would be residual pain on his back and left knee, and some headache.  It may affect his working capacity to a limited extent but I have no evidence to suggest that the Plaintiff could only work a few days a month.

54.  In the circumstances, I found that the Plaintiff should be able to return to his work after sick leave period.  Given the residual pain, I believe a further period of 3 months for the Plaintiff to rest before returning to work is reasonable. Accordingly, I granted a total sick leave (with resting period) of 9 months to the Plaintiff.  There should be no future loss of earning after this period.

55.  In the opening submission, in calculating the post-trial loss of earning, Miss Lee adopted a formula suggesting that the Plaintiff could work only work as a part-time decoration worker.  She takes the daily wages at HK$800 and 11 days per month.  In any event, I found against the Plaintiff that he could only work 3-4 days a month, or 11 days as suggested by Ms. Lee.  I have found that the Plaintiff could return to his pre-accident job after the said period of 9 months from accident and he would suffer no loss of future earnings and there is no evidence to suggest that his daily wages would be reduced.  I found there is no loss of post-trial loss of earning.  I would take into account his residual pain in assessing PSLA and his loss of earning capacity.

56.  For the pre-trial loss of earning, it would be his salary for 9 months and MPF.  I allow his loss at ($11,000 x 105%) x 9 = HK$103,950.

57.  Accordingly, there would not be any loss of future earnings.

58.  On the loss of earning capacity, given there is residual pain, I accept that the Plaintiff may suffer some disadvantage in the labour market.  Having considered the submission, I assess the loss at HK$50,000.

59.  The major claim of the Plaintiff is for PSLA. Miss Lee relied on the case of Li Tak v Everbest Logistics Company Limited and other HCPI 42/2003, a judgment of Mr. Justice Suffiad and PSLA was awarded at HK$450,000.  The plaintiff also suffered from back contusion and mild head injury but the plaintiff also developed symptoms of headache dizziness irritability, depressive mood and weight suicidal ideas.  His bad temper caused his second wife to leave him after the accident.  He is diagnosed to have post-concession symptoms and his injury is more serious than the Plaintiff in our case.

60.  Miss Lee also relied on the case of Lam Chun Oi v Asat Limited HCPI 115/2008 when Master de Souza awarded HK$400,000 for PSLA.  It is noted that in this particular case, the sick leave for the Plaintiff is 20.2 months.  Miss Lee also referred me to the case Li Yik Win v Secretary for Justice acting on and on behalf of the Director of Marine HCPI 563/2006, when Mr. Justice Suffiad awarded $350,000 for PSLA; the case of Gurung Durga Bahadur v. Construction Limited and others HCPI 306/2004 when Master Levy awarded $340,000 for PSLA.

61.  Mr. Leung submits that the Plaintiff’s injuries were minor.  He could carry loads and climb stairs.  And the Plaintiff had returned to normal life in October 2009.  He submits that the reasonable award for PSLA is $150,000.  I believe that is on the low side.

62.  Having full considered all submission, I assessed that a reasonable award for pain, suffering and loss of amenities to be HK$300,000.

63.  On the other special damages, the Plaintiff claims medical and travelling expenses in the total sum of $10,000.  The travelling expenses include taxi fares and taxi receipts for $300 have been produced.  And the receipts for medical treatment add up to about $3,000.  Given that the Plaintiff has to attend out-patient treatment and physiotherapy treatment, while not all receipt could be adduce, I am prepared to allow $8,000 for medical and travelling expenses.

64.  On the claim of tonic food, receipt to HK$5,849 was produced.  The Plaintiff said in his evidence that he bought these items on some elder’s suggestion and not on medical advice.  I would allow a notional sum of HK$3,000.

65.  Finally, there is a claim for repair to his car.  It is not disputed that the Defendant is liable for this item and the question is on quantum.  I understand the costs of survey fees is disputed.  The Plaintiff said it is incurred to check whether his car had other damages.  I will allow the money as claimed.

66.  In summing up, the following is my award: -

a)	PSLA	$300,000
b)	Pre-trial loss of income	$103,950
c)	Post-trial loss of income	nil
d)	Loss of earning capacity	$50,000
e)	Tonic food	$3,000
f)	Car repair	$5,849
g)	Medical and travelling expenses	$8,000
		$470,799

67.  There will be a judgment in favour of the Plaintiff for the said sum of $470,799.  For general damages, there will be interest at the rate of 2% p.a. from date of writ to the date hereof.  As to special damages, interest shall be calculated at half of the judgment rate from date of accident to the date hereof.

68.  I also give an order nisi that the Plaintiff do have costs of the assessment with certificate for counsel to be assessed if not agreed.  Since the award is within the jurisdiction of the District Court, the cost is to be taxed on District Court Scale.  The order nisi shall become absolute in 14 days.