LUK SHU KEUNG v. KWOK CHI SHING

HCPI 848/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 848 OF 2005

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J U D G M E N T

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Background

1.  On 8 September 2002, Plaintiff was driving a private car bearing registration no. GB5129 along Argyle Street and when he was near the junction with Nathan Road, his car was hit from behind by the Defendant then driving his taxi registration no. JX4363.  Plaintiff said his car was driven forward 1 to 2 metres during the collision (“the Accident”).

2.  As a result, Plaintiff suffered personal injuries, loss and damages.  He now claims damages for the same.

3.  Both the driver of the taxi JA6820 and the Defendant were convicted of careless driving.

4.  By a Consent Order dated 6 March 2006, interlocutory judgment on liability was entered in favour of the Plaintiff against the Defendant, leaving damages to be assessed.

5.  This is the assessment of damages hearing.

Injuries and Treatment

6.  After the Accident, Plaintiff was admitted to the A & E Department of Kwong Wah Hospital (“KWH”) on the same day.  Physical examination showed there was tenderness over the base of the posterior aspect of Plaintiff’s neck and his two shoulders and contusion of head.  No focal neurological deficit was detected.  X-rays of his cervoical spine were also unremarkable.  Spondylotic changes were seen at C5/6 level.  There is no foraminal stenosis.  He was treated conservatively with analgesics and was given a neck collar.  He was discharged on the same day.

7.  According to the medical report of KWH, follow up was arranged for him but the Plaintiff defaulted.

8.  It is Plaintiff’s case that he felt severe pain in his head, neck, chest, waist, back, ankle and toes and he attended St. Paul’s Hospital (“SPH”) the next morning.

9.  At SPH, Plaintiff complained of, inter alia, pain and stiffness of neck, numbness along the left upper limb, tenderness and pain on movement over his lumbar spine and pain around the right sacro-iliac joint over his right pelvis.  There was swelling and tenderness at the lateral aspect of his right ankle and pain on walking.

10.  According to Dr. Chang Shao who attended the Plaintiff at SPH, there was no loss of consciousness and the Plaintiff could not recall the exact mechanism of contusion of head.  There was no external wound.  The cervical nerves were intact.  The Plaintiff was described by Dr. Chang as conscious and coherent in speech at time of examination.  Plaintiff was observed to walk slowly with a limp.

11.  The Plaintiff stayed in SPH until 18 September 2002.  During the hospitalization period, Plaintiff was given continuous neck traction, physiotherapy and analgesic medication.  Steady but slow progress was observed.  He felt less pain in the injured areas and the limp in walking was also improved but there was still considerable stiffness in the neck and back. On discharge, he requested and was referred to a private registered physiotherapist.  He received treatment from 20 September 2002 to 26 November 2002.

12.  Plaintiff requested and was given a referral letter to consult a private psychiatrist on 11 September 2002 by Dr. Chang S. when he was still in SPH.

13.  Dr. Chang S. recorded on 28 September 2002 i.e. the 1^st clinic follow-up that Plaintiff told him he was waiting for an appointment to see a psychiatrist.  At that time, Plaintiff did complain of frequent headache and loss of concentration.

14.  Dr. Chang S. said on 11 November 2002, when Plaintiff was having his 3^rd clinic follow-up, he again told Dr. Chang S. that he would attend a psychiatrist 15 November 2002.

15.  Plaintiff repeated his complaint of loss of concentration and memory on 15 April 2003, i.e. 4^th time follow-up.

16.  On 28 September 2002, i.e. the 1^st clinic follow-up after discharge from SPH, Plaintiff still complained of considerable pain at his neck and right sacro-illiac joint.  He also complained of frequent headaches and loss of concentration.  Dr. Chang S. found that the tenderness at lumbar region and right ankle improved.  Walking also improved and the Plaintiff was observed to be able to walk without limp.

17.  There was said to be slow progress and Plaintiff still complained of neck, back pain, pain at right sacro-iliac joint and ankle during the 4 clinic follow-ups by Dr. Chang S.  Sick leave was granted up to 23 November 2002 by Dr. Chang S.

18.  During the last re-assessment follow-up on 1 September 2005, Plaintiff complained of pain on prolonged standing (over 1 hour) walking (30 minutes) and sitting (2 hours).  He said he could not concentrate on desk work because of head injury and because of neck pain with prolonged fixed posture.

19.  Physical examination did not show abnormal finding but there was still some vague tenderness over his right trapezium muscle causing slight restriction of lateral rotation of cervical spine.  There was no tenderness and no restriction of movement at his lumbar spine, right ankle, right sacro-iliac joint.

20.  Dr. Chang S. said that Plaintiff probably suffered from head injury, whiplash injury of cervical spine, contusion of lumbar spine, right sacro-iliac joint and contusions of right ankle.

21.  He said the Plaintiff did not return to him after the sick leave expired, otherwise he would be ready to extend his sick leave.  He said for the Plaintiff to reach maximum medical improvement (MMI) in this sort of case, the usual period is 9 to 12 months.

22.  At request of the Plaintiff, Dr. Chang also referred him to Cosmo Physiotherapy a private physiotherapy centre.  The Plaintiff had received a total of 8 sessions of physiotherapy treatments there until November 2002.

23.  After the physiotherapy treatments, Plaintiff attended and received “rehabilitation” treatment in Guangzhou.  He had 55 sessions of Tui Na (推拿) and massage.  He also received between 26 November 2002 to 29 May 2006, 80 sessions of manual physiotherapy at 廣東省中醫院 (“MGPH”) and 21 treatment sessions from 廣東醫學院第一附屬醫院 (“FAHGMS”).

24.  Further, Plaintiff received psychiatric treatment from Dr. Chang Lik Chee (“Dr. L.C. Chang”) of Department of Psychiatry of Pamela Youde Hospital. He was first seen on 13 June 2003.  He was diagnosed to have post traumatic stress disorder (“PTSD”) and a secondary diagnosis of depression.  He was given antidepressant drug and benzodiazepine.  According to report of Dr. L.C. Chang dated 11 December 2003, Plaintiff was expected to have psychiatric follow up every 2 to 4 weeks.

25.  Plaintiff only attended one more consultation on 14 May 2004 after the said medical report and did not further attend/or receive any psychiatric treatment.

26.  Although Plaintiff said he received 12 psychiatric treatment sessions, record showed that he only attended 8 sessions.

Joint orthopaedic report

27.  For the purpose of assessing the injuries of the Plaintiff, parties had engaged two orthopaedic surgeons, Eric Chien for the Plaintiff and Dr. Lam Kwong Chin for the Defendant.  They compiled a joint report dated 16 October 2006 pursuant to assessment of the Plaintiff on 18 September 2006.

Head

28.  Plaintiff complained of headache, pain in both eyes, visual disturbance and dizziness.

29.  Both doctors agree that as Dr. Chang S. recorded that there was no loss of consciousness and no external wound on the head of the Plaintiff, any significant head injury or central neurological complication is unlikely.  The visual complaints are unlikely to be results of head injury.

Back

30.  Both agree that the Plaintiff probably had a whiplash injury to his neck.  This cervical diagnosis is compatible with his description of the mechanism of the injury.  The spondylotic change seen at C5/6 level should be pre-existing degenerative changes.

31.  Dr. Lam said the Plaintiff’s complaints regarding numbness of the upper limb could not be explained on anatomical grounds.  Dr. Chien did not dispute this observation.

32.  Both agree that the Plaintiff probably had a contusion of lumbar spine and right sacro-iliac joint with soft tissue involvement but no bony damage or neurological deficit of the lower limbs.  The minor degenerative changes noted in the L3/4 level were also pre-existing.

33.  Dr. Lam opines that the back injury was just a simple back contusion, which should have improved with time.  The back complaints made by the Plaintiff at time of assessment 4 years after the accident are out of proportion to such a contusion.

34.  Dr. Lam also pointed out that the degenerative changes of the cervical and lumbar spine, referred to by Dr. He, treating doctor of the Plaintiff at FAHGMS was pre-existing while the lumbar-sacral angle and spina bifidia of S1 are inborn.  Both are not caused or aggravated by the accident.

35.  Further, Dr. Lam also noted from Dr. He’s report that the cervical lordosis has changed from reduced to normal between 27 December 2004 to 10 April 2006.

36.  This view of Dr. Lam is not disputed by Dr. Chien.

Lower limbs

37.  Both agree that the Plaintiff probably had a contusion of right ankle with soft tissue involvement.  They also agree that the same had recovered as Mr. Luk no longer had ankle complaints at the interview.

38.  Both also agree that the unequal leg length complaints and the left heel pain on standing complaint are both not related to the accident.

Treatment

39.  Dr. Chien accepts that the treatment received by Plaintiff in Guangzhou and Hong Kong are necessary and appropriate in the circumstances.

40.  Dr. Lam noted that apart from the consultations by Dr. Chang S., the Plaintiff had received only 2 consultations from orthopaedic surgeons and 8 sessions of physiotherapy treatments before he resorted to these “rehabilitative treatment”.  He said these treatments was not adequate.  He is also of the view that the Plaintiff would have faster and better recovery had he received more active treatments.

41.  Although Dr. Lam is criticized for not being specific as to what further treatment the Plaintiff should further receive and how much earlier would the Plaintiff recover had he received such further treatment, it is abundantly clear to the Court, that if the Plaintiff, on his own accord, stopped all further treatment in standard western medicine from November 2002 i.e. just 2 months after the accident and instead choose to, resort solely to “rehabilitative treatment” (as Dr. Chien put it) from medical establishments in Guangzhou, often with alternative medicine methods, he could not be said to have given himself all the treatments necessary for recovery, at least orthopaedically.

42.  This Court is aware that Dr. Chang S. was of the view that as there was only slow progress when Plaintiff received physiotherapy, further treatment in standard treatment is unlikely to bring significant improvement.  In fact, this Court is surprised that Dr. Chang thought so because according to the 1^st clinic follow-up record on 28 September 2002, the Plaintiff could walk without limp though the pain on neck and pain remained but they were noted to be of milder intensity.  There is clearly, objectively speaking, marked improvement over short period of time.  In any event, he himself said that for cases like this, it is usual for MMI be reached in 6 to 9 months’ time.

43.  The Court noted that Dr. Chang S., an orthopaedic specialist has only charged the Plaintiff $100 for each of his consultation.  Plaintiff explained in Court that the reason was Dr. Chang S. knew the Plaintiff was not well off.

44.  In fact, according to Dr. Chang S., on 1 September 2005, i.e. nearly 3 years after the Plaintiff had received more than numerous sessions of treatment from Guangzhou, Plaintiff still made subjective complaints similar to those back in November 2002.

45.  It should be noted that whilst Dr. Chien said treatments received by the Plaintiff in Guangzhou was necessary, having regard to the medical records by Dr. He, it is doubted whether the same was offered to the Plaintiff, solely or partially due to the accident or the pre-existing conditions of the Plaintiff, such as the pre-existing degenerative changes of the cervical and lumbar spine, the inborn lumbar-sacral angle and spina bifidia of S1 and/or other unrelated complaints of the Plaintiff.

46.  One also noted from the medical notes of Dr. He that some of the complaints of the Plaintiff was new, not previously been complained of by the Plaintiff such as visual disturbance and unequal leg length and some were directed to the pre-existing condition of the Plaintiff, such as the spina bifidia S1. These complaints were said by the two orthopaedic experts Dr. Chien and Dr. Lam as not relating to the accident.

47.  Accordingly, that this Court is not satisfied that the treatments received by the Plaintiff in Guangzhou was necessary for the treatment of the injury of the Plaintiff due to the accident.

Further treatment and prognosis

48.  Both Dr. Chien and Dr. Lam do not agree on the necessity of the further treatment proposed by Dr. He for the Plaintiff, i.e. “he had better take the therapy once or twice a week until the disease disappears completely”.

49.  Dr. Chien is of the view that the Plaintiff had reached MMI and that it is unlikely that he would be free of all residual symptoms.

Impairment and employment

50.  Dr. Chien says that the Plaintiff has limited performance in his essential actions of life particularly in driving, carrying out repetitive actions for prolonged period and recreational and sports activities.  It is said that the Plaintiff had made subjective complaints of pain and tiredness which cannot be measured by physical examination.  Dr. Chien said the Plaintiff had shown features of stiffness and muscle spasm which would jeopardize the physical performance of the daily living of the Plaintiff.

51.  Dr. Lam on the other hand doubted the severity of the complaints as they are largely subjective.  Dr. Lam said there was no neurological damage of the Plaintiff in this case and for soft tissue injury of the Plaintiff’s nature, the neck condition should not last for so long and in such severe extent as alleged by the Plaintiff.

52.  Dr. Chien said because of the limited physical performance of the Plaintiff, the Plaintiff has limited ability to return to his pre-accident job as a project manager as he had to drive to project site.  He opined that the Plaintiff could only take up light job with shorter working hours and more rest between tasks of physical activities.  He would also have to avoid jobs requiring prolonged standing, walking and sitting.

53.  Dr. Lam on the other hand says that as the pre-accident job of the Plaintiff is basically sedentary, a neck injury of this nature would only result in minimal limitation in his working capacity.

54.  Dr. Chien says that the Plaintiff would receive further treatment by psychiatrist and his performance would improve with further arrangement by psychiatrist.

55.  Dr. Lam doubted the necessity of further psychiatric treatment.  He said the Plaintiff had stopped seeking such treatment for over 2 years (up to the date of the joint assessment) and he doubted whether the Plaintiff was/still is affected by the accident, or whether he had other personal causes for such psychiatric complaints.

Sick leave

56.  Both agree that the sick leave from 8 September 2002 till 23 November 2002 is reasonable for the Plaintiff’s orthopeadic conditions.

Joint psychiatric report

57.  Parties have engaged psychiatrists Dr. Peter Ho and Dr. Chung See Yuen respectively for the Plaintiff and the Defendant in assessing the Plaintiff on the 29 August 2006 and had compiled a joint report dated 13 September 2006.

58.  At the time of preparation of the joint report, both psychiatrists were not informed that the Plaintiff was involved in criminal prosecution on a charge of conspiracy to defraud in relation to his employment from year 2003 and was acquitted in July 2004 and civil litigation involving a claim against him by his former employer for $9.27 million as from year 2001 and continuing.

59.  It is noted that the Plaintiff had exaggerated in his telling to the psychiatrists as he told them that “he remembered that the headrest of his car was deformed after the impact of the accident”.  This was not true.  In Court, when examined, he explained that he was just joking when he told this to the psychiatrists.

60.  This Court cannot see how the Plaintiff could fairly say he was so mentally disturbed by the accident, how he would avoid going to the accident site if he could joke about the accident.

61.  In fact, the undisputed evidence before the Court is that the passenger sitting beside the Plaintiff at time of collision was not injured in the accident.

62.  I do not accept the ‘joking’ explanation by the Plaintiff.  In my view, this is a blatant attempt by the Plaintiff to exaggerate the impact of the collision.

63.  Plaintiff also said after the accident, “he was very frightened and felt helpless.  A policeman pulled him out from his car.”  In Court, the Plaintiff when cross-examined, admitted that in fact, he did, on instructions from the police who arrived at the scene, drive the car to another spot.  He was not pulled out from the car.

64.  The witness statement to the Plaintiff dated 6 July 2006 was also one of the instruction documents given to the psychiatrists.  In paragraph 5 of the same, the Plaintiff said after the collision, he had, for a brief moment, loss of consciousness.  Again, this contradicted the medical notes by Dr. Chang S. who recorded there was no loss of consciousness.  When cross-examined, Plaintiff said at time Dr. Chang S. saw him, he did not quite understand what was meant by loss of consciousness, so he replied in the negative.  Later, he said Dr. Chang had in fact misunderstood him.

65.  In the medical report of the A & E Department of Kwong Wah Hospital, again there was no mention of loss of consciousness.

66.  It is hard to accept that for a person with such education background and working experience as the Plaintiff, that he could have not understood what is meant by loss of consciousness.

67.  Further, in paragraph 17 of the said witness statement of the Plaintiff, the Plaintiff said because Dr. Chang S. knew that at time of accident, he received the trauma without advance notice and that he had loss of consciousness, that he might be suffering from PTSD and therefore Dr. Chang S. suggested that he seek the advice from psychiatrist in private practice.  This could not be possible because records showed Dr. Chang S. was told by the Plaintiff that he did not lose consciousness.

68.  Further, medical record for Dr. Chang S. showed that it was in fact the Plaintiff who requested for a referral letter to see a psychiatrist for assessment on 11 September 2002.  Moreover, it was expressly mentioned in the referral letter written by Dr. Chang S. that the Plaintiff did not have loss of consciousness after the accident.  This letter was tendered to the Plaintiff for further action and he could easily read and understand the contents of this very short referral letter.  He never objected to the accuracy of this statement.

69.  Plaintiff also told the psychiatrists that he needed someone to help him whilst he was using the stairs in his home after the accident, that his wife needed to help him with bathing and toileting.  He said because his wife had to take care of him, they had to hire a maid to do the household chores in the first year after the accident.

70.  Strangely, he omitted to tell the psychiatrists that the “maid” was in fact the sister-in-law of the Plaintiff who was also described, though differently, as a “nurse” in the receipts allegedly signed to acknowledge receipt of wages and further, he was supposed to have hired “the maid” for 18 months and not 12 months as he told the psychiatrists.

71.  He also told the psychiatrists of the nightmares he had after the accident, which would wake him from his sleep and he would have sweating in his palms and soles when he was in fear.  He also told of his depressed mood and that he had no sex with his wife for few years due to fear of aggravating pain and impaired sex desire.  He also complained of poor memory.  He said he felt fear when encountering cues concerning car crashes.  As said earlier, if these subjective complaints were true, how could he have joked about the accident.

72.  Plaintiff also omitted to tell the psychiatrists that despite all these complaints, including in particular those of memory loss and visual impairments, that he did between year 2002 and year 2004 attended and completed the EMBA course in Guangzhou run by Sun Yat Sen University.  The alleged existence and extent of these subjective complaints by the Plaintiff must be considered in the light of this fact.

73.  In Court, the Plaintiff testified and said that the course was very easy to him as he needed just to complete 4 subjects, the rest of the subjects being exempted because of his previous education.  Yet still, as he said, he had to travel to Guangzhou, changing modes of transport on the way, to attend the course.

74.  Dr. L.C. Chang, the psychiatrist at Pamela Youde Hospital said the Plaintiff told him that there was onset of emotional disturbance one month after the accident.  If this was so, why would the Plaintiff request Dr. Chang Shao for a referral letter to see a psychiatrist on the 11 September 2002, just 2 days after the accident?

75.  Plaintiff did not produce to this Court any medical report from psychiatrist other than Dr. L.C. Chang although in his 1^st clinic follow-up record by Dr. Chang S., Dr. Chang S. recorded that Plaintiff was waiting to see psychiatrist and in his 3^rd clinic follow-up record, Dr. Chang S. was told by Plaintiff that he was going for a consultation by psychiatrist on 15 November 2002.  When cross-examined in Court, Plaintiff said Dr. Chang S. had misunderstood him, he did not go and see any psychiatrist then.

76.  It is also noted that the first time Plaintiff said he had lost consciousness was on 12 June 2003 when he consulted Dr. L.C. Chang.

77.  Dr. L.C. Chang in his report dated 13 December 2003 mentioned that when the Plaintiff was seen on 3 December 2003, Plaintiff admitted that there was improvement in his depressive and anxiety symptoms.  Plaintiff still complained of problems in concentration and memory.  He still had nightmares and is still irritable.

78.  Had these complaints been true, it is difficult to undestand why after receipt of the psychiatric report by Dr. L.C. Chang, the Plaintiff had defaulted in attending further follow-up psychiatric treatment (except one), whether from Dr. L.C. Chang or indeed from any psychiatrist.

79.  The Plaintiff had previously also been referred by his treating psychiatrist in Pamela Youde Hospital to Ms. Mary Wong, a clinical psychologist for neurocognitive assessment.

80.  Intake and assessment of the Plaintiff took place on 8 September 2003. Follow-up and explanation of assessment result took place on 10 October 2003. Plaintiff was said to have defaulted in appointments on 26 August 2003, 17 September 2003, 15 December 2003, 16 February 2004 and 18 June 2004.  He explained that he had memory problem following the accident and therefore he missed appointment with the clinical psychologist.

81.  It should be noted that between January 2003 and February 2004, the Plaintiff had managed to complete his EMBA course at Guangzhou, and “with ease”, as he put it.  It is difficult to understand why he would encounter difficulty in attending the appointments with the clinical psychologist on these numerous occasions in year 2003 to year 2004.

82.  Ms. Mary Wong prepared the report on 31 August 2005  She mentioned that she was told by the Plaintiff that at time of accident, he was employed by a famous local corporation on full time basis and further that he was in charge of several large scale environmental conservation and construction projects. He also told Ms. Wong that he resigned in early 2003 because he felt his work performance had deteriorated after the accident.

83.  Firstly, according to his evidence both in the witness statement and in Court, he was not employed by a famous local corporation at time of accident.

84.  Secondly, his employment, as alleged, was terminated.  He did not resign.

85.  He said to Ms. Wong that he had difficulty in retrieving core knowledge of his professional domain.  He indicated that he had increased conflicts with colleagues due to his forgetfulness.  These were never mentioned in his witness statement or even his evidence in Court.

86.  Ms. Wong, the clinical psychologist said the Plaintiff was skeptical about the validity and reliability of the assessments taken in various departments of PYNEH.  He speech was fluent and well articulated and there was no instances of word finding difficulty occurred in spontaneous speech.  The Plaintiff had no difficulty understanding test directions or the examiner’s language.  These appears to be contrary to his described symptoms to Ms. Wong.

87.  Ms. Wong in her report said Plaintiff told him that he obtained a master degree in project management in UK and a master degree in education in Canada. Again, these are not what he told the Court either in his witness statement or in Court.  His evidence now was that he never had a master degree from either UK or Canada.  He only obtained EMBA from a Mainland University in year 2004 although he previously did obtain a diploma in US.

88.  When examined in Court, Plaintiff said Ms. Wong had misunderstood him and that she was wrong.

89.  Despite the complaints by the Plaintiff to Dr. Ho and Dr. Chung, both doctors said the Plaintiff was settled and composed during the interview.  He could walk freely and his mood was neutral.  He also displayed appropriate range of emotional response.

90.  Plaintiff said he was depressed because of the pain and the disabilities.  He said he could not participate in the many hobbies he had before the accident such as playing tennis and squash.  He also felt depressed because he could not work and needed someone to supervise him with his daily functions.  He was upset also because of memory impairment.  Plaintiff denied have serious financial problems or that he was too upset about his financial situations.

91.  Both psychiatric experts Dr. Ho and Dr. Chung opined Plaintiff was suffering from depressive episode of a mild degree in relation to the accident. They said although the accident did cause some “symptoms” of PTSD.  The intensity of the symptoms is mild.

92.  Dr. Chung said further that despite the subjective complaints of the Plaintiff, there is absence of objective signs of anxiety or depression during the joint assessment.  He said the Plaintiff’s concentration and memory are not impaired and he was of the view that the impairment level caused by the mental problem is mild and the Plaintiff is capable of performing all activities of daily living.  He is also able to drive, despite the anxiety.

93.  At the time the psychiatric experts had such conclusion, they were not yet told of the criminal prosecution and the civil litigation faced by the Plaintiff.  Later, they were so informed and supplemental psychiatric report was prepared then.

94.  Having perused the judgments of Deputy Judge Carlson in HCA 2895/2001 dated 3 November 2006 and the verdict of Plaintiff’s criminal proceedings dated 28 January 2004, without another interview with the Plaintiff, Dr. Chung said he believed Plaintiff’s involvement in litigation should have contributed to his depressive episode to a certain extent although he was unable to comment on the extent of the contribution to Plaintiff’s depressive episode based on the new documents alone.

95.  Dr. Ho however did not think Plaintiff’s criminal proceedings had any significant effect on him during the joint assessment in 2006.  He formed the view that chronic pain and frequent encounters with threats from cures reminding him of the accident were likely to be more significant stress factors than being the defendant in a criminal case.  Dr. Ho says from the information available, it appears the Plaintiff only developed psychiatric conditions after the accident.  Dr. Ho says in June 2004 after the Plaintiff got a job, his mood became better.  Dr. Ho says the Plaintiff was then still defendant in a criminal case, so he says the effect of criminal proceedings on the Plaintiff was not contributing to his mental conditions.

96.  He says it is difficult to determine accurately from the documents alone whether Plaintiff’s involvement in legal cases was contributing factor to his depressive episode.  He said any contribution from Plaintiff’s criminal case at time of joint interviews was likely to be small.

97.  Actually, Plaintiff was already acquitted in January 2004, i.e. 5 months before Dr. Ho saw the Plaintiff.

98.  It is submitted by the Plaintiff that criminal investigation of the Plaintiff started in mid year 2000, and the civil cases started in year 2001 but Plaintiff’s psychiatric condition only appeared after the accident.

99.  Firstly, I find the Plaintiff not being full and frank to the psychiatrists, either Dr. L.C. Chang of Pamela Youde Hospital or Dr. Ho in year 2004 or Dr. Ho and Dr. Chung when they prepared the joint report.  On all these occasions, he failed to volunteer the information of the criminal proceedings and the civil proceedings.

100.  This Court takes the view that any reasonable man of clear record is generally placed in extremely stressful situation when faced with a conspiracy charge as the conviction of which entail lengthy sentence of imprisonment or when faced with a civil claim of $9 million.

101.  As submitted by Counsel for the Plaintiff (as defence counsel) in the civil proceedings, the stigma of the prosecution for these matters has resulted in the Plaintiff not being able to secure any employment.

102.  It was said in the ruling of Deputy High Court Judge Carlson on 20 April 2010, that the Plaintiff stated in the affirmation that he had no meaningful employment since the start of the action (writ issued on 27 June 2001).

103.  Plaintiff in Court retorted and said the submissions by his counsel in the civil proceedings was incorrect.  He said he was employed at time of accident in September 2002.  Somehow, the Plaintiff in this case always accused others of misunderstanding him when he was asked why his evidence appears to be self contradictory.

104.  When Plaintiff said, in June 2004, that his mental conditions improved, that in fact was shortly after the acquittal of the Plaintiff.

105.  By reasons of the matters aforesaid, I prefer the expert view of Dr. Chung as compared to that of Dr. Ho and concluded that the legal proceedings must have contributed to the mild depressive mood of the Plaintiff and further that the actual impairment level by his mental conditions must be very mild and Plaintiff is able to perform all activities of life.

106.  Plaintiff gave evidence in this assessment hearing.  He adopted his witness statements dated 6 July 2006 (“1^st Statement”) and 4 November 2009 (“2^nd Statement”) as part of his evidence.

107.  He was commented by Counsel for the Defendant as an unreliable and/or dishonest witness.  I agree.

108.  As said, he exaggerated the impact of the collision and lied to Dr. Peter Ho.

109.  He told Dr. L.C. Chang 9 months after the accident that he had loss of consciousness when he told Dr. Chang S. his treating orthopaedic surgeon 1 day after the accident that he had not lost consciousness.

110.  In fact, PC 49640 who arrived the scene in his witness statement confirmed that the Plaintiff was able to drive the car to a less busy spot upon his request after the collision and not as he said, he was frightened and needed to be pulled out from the car.

111.  It was said by Dr. Chung that the Plaintiff exaggerated and/or manipulated his alleged psychiatric symptoms.

112.  He said Dr. Chang S. suggested referring him to see a psychiatrist, actually it was not so.

113.  In fact, it was him who requested Dr. Chang S. on the 3^rd day after his admission for the same.

114.  The Plaintiff was not happy with the result of the assessment of Ms. Mary Wong, the clinical psychologist and had defaulted numerous further follow-ups, saying he had problems remembering the appointments.  This is clearly his excuse for not turning up.

115.  The Plaintiff told Dr. L.C. Chang that the onset of emotion disturbance was a month after the accident when he asked the referral letter to see psychiatrist 3 days after the accident.  In my view, mental disturbance (if any) that has occurred must have existed much earlier than date of accident.

116.  The Plaintiff only attended one more follow-up at PYNEH after the assessment by Dr. Peter Ho.  If his conditions were really as serious as he informed Dr. Ho and Dr. L.C. Chang, why did he stop all psychiatric treatment in 2004?  The Plaintiff’s evidence is self-contradictory and cannot be reconciled.  When the medical records and his evidence differed, he blamed the others for misunderstanding him or making a wrong record of his complaints, e.g. Dr. Chang Shao’s records on 2 clinic follow-ups referring to the Plaintiff seeing psychiatrist in late November 2002, Ms. Mary Wong’s record on his employment, Dr. L.C. Chang’s record of the reported time of onset of symptoms.

117.  The Plaintiff had not informed the Court in the civil case HCA 2895 of 2001 of his alleged employment with Lee Hang (Hong Kong) Trading Ltd. (“Lee Hang”), if they did exist.  Instead, he told the Court he was unemployed. Alternatively, if Plaintiff was really unemployed, he lied to this Court about his employment at time of accident.

118.  Likewise, the Plaintiff stated in his Tax Return ended 31 March 2003 that he was jobless from July 2001 till then i.e. time of completing the tax return on 30 June 2003.  Plaintiff also signed his name immediately under the printed declaration that contents of the tax return were all true and correct. In Court when cross-examined, the Plaintiff explained that as the job with Lee Hang was mainly performed in the Mainland and Lee Hang shall be responsible for the tax on his income, he did not disclose the employment in the tax return. Stating expressly jobless and not subject to tax are 2 different things.

119.  Plaintiff also gave different versions of his education background and employment at time of accident to different doctors.

120.  He told Dr. L.C. Chang in June 2003 that he was educated up to Master Degree in Business Administration in United States and that he worked in an environment protection company for 10 years.

121.  He told the clinical psychologist Mary Wong that he had a Master Degree in Project Management and/or Engineering in United Kingdom and he also obtained a Master Degree in Canada.  He said at time of accident, he was employed by a famous local corporation on full time basis.  He said he was in charge of several large scale environmental conservation and construction projects.  He resigned in year 2003 because he felt his work performance had deteriorated after the accident.

122.  On his own admission, the above was untrue.  His employment with Cathay Pacific was terminated in June 2001.  He did not have a master degree from either United Kingdom or United States.  He only acquired EMBA in year 2004.

123.  Even if his evidence was to be accepted and that he was working with Lee Hang at time of accident, it was not a famous local corporation.

124.  Though it was provided in the employment contract between the Plaintiff and Lee Hang (Hong Kong) Trading Ltd that the gratuity paid to Plaintiff would be tax free, nothing was mentioned about tax liability for the salary income.

125.  Strangely, though the Plaintiff says he insisted on signing contract with a Hong Kong company as his employer for protection of his legal rights, there is no provision for Mandatory Provident Fund in this contract.

126.  Plaintiff says he was employed by Lee Hang as a project manager at time of accident at monthly salary of $75,000 plus gratuity and year-end bonus.

127.  He said the project was still in its design stage at time of accident but he says he expected his contract to be renewed after the 2 year employment contract expired as the development will only be completed in year 2005 to 2006.  Plaintiff said he joined Lee Hang just 2 months prior to the accident in July 2002.  It is not in dispute that though he had previously been working as a clerk of works, he had no experience in building development in Mainland.

128.  He said due to the injuries and the further treatment expected to follow, the employment was terminated on 17 October 2002.

129.  Apart from evidence from the Plaintiff and Madam Chung, there was no other objective or documentary evidence substantiating existence of the employment with Lee Hang.  Plaintiff said he received salary in cash and he tendered receipts though there was no receipt for payment of wages from 1 October 2002 to 17 October 2002.  Madam Chung agreed to this.

130.  There was a receipt allegedly for payment of one month’s salary in lieu of notice to the Plaintiff.  However a letter from Lee Hang dated 18 September 2002 showed that Lee Hang had given the Plaintiff one month’s notice to terminate his employment, effective from 17 October 2002.  There is therefore, no need for Lee Hang to pay the extra month’s pay to the Plaintiff and in any event, if Lee Hang liked to pay the Plaintiff extra, the same was not made in lieu of notice.

131.  No explanation was offered by the Plaintiff on this.  His witness Madam Chung said she just followed the instructions of Mr. Chan, the mainland director who made the decision to employ the Plaintiff.  Mr. Chan did not give evidence.

132.  It is interesting also that when the Plaintiff worked for Cathay Pacific, his last monthly salary was around $52,000 and his monthly salary jumped to $81,250 when working for Lee Hang (taking into account of the extra month pay at year end and gratuity on completion of contract), an increase of 56%.

133.  Further, this Court cannot think of any good reason why Lee Hang would have prepared an employment contract in English when all business documents of the company on group of companies, as disclosed, are in Chinese and Mr. Chan, who employed the Plaintiff is a mainlander in Dougguan.  Even Madam Chung herself admitted that her English standard is not good enough to draft the employment contract in question.  She gave evidence in Court and said the employment contract was drafted by young girl called “阿品”.  Initially Chung described her as the secretary of her company i.e. Lee Hang, later she corrected that she was in fact referring the secretary of Mr. Chan in the mother company in Dougguan as there is no staff in Lee Hang office in Hong Kong, apart from herself.  She explained that she treated Lee Hang and the mother company in Dougguan as the same company.  Madam Chung took time to give answer these questions in cross-examination.

134.  It is admitted by Madam Chung that the employer also did not take out any social security insurance for the Plaintiff in Mainland.  Explanation given by Madam Chung was that the probation period had yet to expire.  Again, it is noted that whilst it was provided in the employment contract that there would be no MPF, there is nothing in it which tells of the duty of Lee Hang to take out social security insurance (社保) for the Plaintiff.

135.  This Court considers the Lee Hang employment contract, as drafted, is written in good business English and it would appear to be unusual for a young secretary in Dougguan to be able to draft such a document.

136.  When asked how the wages paid to the Plaintiff was reflected in the annual accounting statement of Lee Hang, Madam Chung, a director of Lee Hang in her witness statement and in Court, replied they were treated as consultancy fee expenses.  When asked if she had read the accounts statement of Lee Hang before she replied or made the witness statement, she replied in the negative. She was asked if she would be willing to produce the accounts statement of Lee Hang, after a short break, Madam Chung refused.

137.  Madam Chung in Court says the discussion regarding the job duties expected of the Plaintiff took place between Mr. Chan in Dougguan and the Plaintiff and that she did not quite know.  However, when asked if that were the case, why did the Lee Hang employment contract stipulated that the Plaintiff was to follow instructions given by Madam Chung, Madam Chung faltered.

138.  In fact, apart from being director of Lee Hang, Madam Chung is also involved in the Kowloon Fish Meal Factory Ltd (“KFM”).  Her name together with that of the Plaintiff appeared in the Innovation and Technology Fund/Innovation and Technology Commission HKSAR webpage as the contact persons for KFM in year 2002.

139.  In the course of the conspiracy trial, it was the Plaintiff’s case that he had paid the money originally destined for the genuine conservation organization to KFM for other environmentally friendly projects.

140.  Plaintiff was said to be employed by KFM since sometime in June 2004 to December 2004 and also from December 2005 onwards at monthly salary of $15,000. He said he was paid in cash by Kowloon Fish Meal (“KFM”) which saves him the trouble of queue at the banks.  Actually, it transpired later in cross-examination that he needs payment of wages in cash because his personal bank accounts were frozen in the civil proceedings.

141.  Counsel for the Defendant submitted that the Lee Hang employment contract was a sham contract designed to inflate Plaintiff’s claim in the present proceedings.

142.  Having regard to the quality of evidence from Plaintiff and his witness and the conflicting documentary evidence before the Court, I accept this proposition.  I am not satisfied, on a balance of probabilities that the Plaintiff was indeed to be employed by Lee Hang at time of accident.

143.  Plaintiff said he did seek for jobs with the help of Labour Department. He was also advised by Dr. Chang Lik Chee the psychiatrist from Pamela Youde not to work as he was diagnosed to be suffering from PTSD.  He said until June 2004, he was introduced to work at Kowloon Fish Meal earning $15,000 per month.

144.  Plaintiff was involved in the criminal proceedings which had widely been publicized and as submitted by his counsel, the stigma had result in difficulty for the Plaintiff to secure employment.  It is understandably so if one read the verdict of Judge Wright.  The conduct of the Plaintiff in the matter, as admitted, is not attractive to any prospective employer.

145.  Both orthopaedic experts in their joint report said the whiplash injury to the neck, the contusion of lumbar spine and right sacro-iliac joint with soft tissue involvement should have recovered over time and the right ankle injury had already recovered.

146.  They also opined that the other complaints are not related to the accident, such as headache, pain over eye, visual disturbance, dizziness, unequal leg lengths and complaints of upper limb could not be explained on anatomical grounds.  There are also pre-existing degenerative changes to the C5/6 level and L3/4 level.

147.  Dr. Lam said back complaints of the Plaintiff are out of proportion to the simple back contusion.  As the injury of the Plaintiff relates just to soft tissue, Dr. Lam said they should not persist so long.  Therefore though, Plaintiff has a lot of subjective complaints, in view of the orthopaedic experts, they do not relate to the accident.

148.  Dr. Chien says Plaintiff has limited ability to return to his stated pre-injury job.  His physical performance would limit him to take up only light jobs with short working hours and rest periods in between tasks of physical activities.  He has to avoid jobs which required prolonged walking, standing and sitting.

149.  Dr. Lam on the other hand states that as the stated pre-accident job of the Plaintiff is mainly sedentary there should only be minimal limitation in his working capacity.

150.  Although Dr. Chien is of the view that the Plaintiff should receive psychiatric treatment.  It is a fact that Plaintiff did not go for such treatment since the last consultation in year 2004.  It is doubted whether the Plaintiff did in act suffer the severe mental symptoms as he alleged.

151.  Having considered the evidence before the Court, I now turn to individual heads of claim of the Plaintiff.

PSLA

152.  Plaintiff now claims $450,000 under this head.  Relying on the joint orthopaedic reports before the Court, the Plaintiff was diagnosed to have whiplash injury to neck and a back sprain.  This is soft tissue injury involving no fracture.  The residual effect of the accident on the Plaintiff is, according to Dr. Lam, the expert opinion of whom I prefer, is not as serious as posed by the Plaintiff.  In fact, they should be minimal.

153.  Further, the two psychiatrists both considered that the Plaintiff as merely suffering from a mild depressive episode.  They disagree to the diagnosis of Dr. Chang and said there are only some mild symptoms of PTSD which do not qualify for PTSD.

154.  Plaintiff cited the case of Chan So Kwan v Mak Siu Kean Victor & Anor, HCPI No. 1487 of 2000 decided by Master K.Y. Chan on 15 March 2002. In that case, the Plaintiffs suffered whiplash injury, there was also tenderness over C4 vertebra and anterior chess wall.  X-ray showed no fracture.  Plaintiff there attended 26 sessions of physiotherapy treatment and other follow-up treatment.  She was also found to have Generalized Anxiety Disorder and prolonged dizziness, headache, neck pain and limitation of neck movement as a result of the whiplash.  She was awarded $300,000 for PSLA.

155.  It appears she has more serious psychiatric conditions than the Plaintiff in our present case.

156.  The case of Li Fat Tsang v Shun Tat Engineering Co. & anor., HCPI No. 588 of 2000 (V. Bokhary J., 15 July 2002) was also relied on by the Plaintiff. In that case, the Plaintiff, a concrete cement worker, sustained an injury at work when he lost balance and fell.  As a result, he suffered persistent back pain and weakness and numbness of the right leg, which became worse at night. He could not sit for more than 20 minutes without his leg becoming numb or to stand for more than 40 minutes without suffering back pain.  He could not walk for more than 10 minutes without pain and his sleep was frequently disturbed.  His sex life was adversely affected.  He also suffered emotional stress. Examination revealed that he had suffered tenderness at the lumbo-sacral region, muscle spasm at the right paraspinal region, impairment of spinal movement, muscle wasting and weak motor power of the right leg and osteoarthritis in the lower throracic spine and L1-5 region.

157.  An award of HK$300,000 was made for PSLA, placing the plaintiff’s injuries at about 3/4 of the bottom line of the “serious injury” category.

158.  Although the Plaintiff in this case did make similar complaints regarding prolonged walking, standing and sitting, this Court finds the Plaintiff having exaggerated the symptoms and there is doubt as to whether they are caused by the accident.  In any event, during the assessment hearing, he was not observed to show signs of pain or discomfort when he sit in Court throughout the assessment hearing.

159.  Again, in the Lai Kam Wah v Wing & Kwong Co. Ltd., HCPI No. 1131 of 2002 (Sakhrani J., 28 November 2003), the plaintiff, a steel bunder, suddenly heard a click sound on his back and felt severe pain in his back when he lifted a steel bar.  X-ray showed no fracture.  There was tenderness and muscle spasm over the lower lumbar spine.  The clinical diagnosis was low back pain.  He was treated and discharged on the same day.  Subsequent MRI showed a small annular tear in the L5/S1 disc and there was also an old injury at T11/T12 level which was unrelated to the accident.  Thereafter, the plaintiff sustained persistent back pain.  He was also referred to the Clinical Psychology Service of Tuen Mun Hospital for pain management.  Medical evidence showed that there was no objective sign for his pain but psychiatrist opined that the plaintiff’s mood was mildly depressed and that he had a low self-esteem.  He was suffering from adjustment disorder with some symptoms of anxiety and depression.

160.  The Court found that the plaintiff’s condition was aggravated by psychological and emotional difficulties.  General damage for PSLA was awarded at HK$350,000.

161.  As for the other cases of Cheung Man Fai v To Yu Bun & another [2005] 4 HKLRD 16 (Suffiad J., 29 April 2005) the psychiatric condition and orthopaedic condition of the Plaintiff as well as the impact of the accident on him was much more serious than the present case.  PSLA was assessed at $550,000 in that case.

162.  Further the case of Liu Shui Bik v Countfortune Limited & anor., HCPI No. 60 of 2008 (Saunders J., 17 March 2010), which involved also whiplash injury, it was the joint opinion of psychiatrists that the Plaintiff suffered mild impairment of activities of daily living and functioning consequent upon psychiatric conditions.  Further psychological therapy in private sector was recommended.  PSLA was assessed at $450,000.

163.  In our case here, the Plaintiff had stopped psychiatric treatment offered to him for a long time.  I agree with the Defendant and Dr. Chung that the psychiatric condition of the Plaintiff, if present at all, is not as serious as what Plaintiff alleged and he can perform all activities of life.

164.  In my view, the injury of the Plaintiff as found by the Court, does not fall within the “serious injury” category, the same was defined as: -

“… a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

165.  Although Dr. L.C. Chang diagnosed Plaintiff as having PTSD, Dr. L.C. Chang was then not informed of the legal proceedings.

166.  Another thing which interests me in this case is the unusual promptness of the Plaintiff requesting for referral letter to see a psychiatrist.

167.  Defendant referred this Court to the case of Chan Chun Keung v Greenvoll Limited trading as Conrad Hong Kong, HCPI No. 275 of 2005, Deputy High Court Judge Carslon, a bar captain fell on a wet floor on his buttocks. He suffered from persistent back pain with left wrist pain and a numb left leg and thigh.  The diagnosis was soft tissue contusion of the lower back.  The learned judge held that he was suffering no more than a soft tissue injury which exacerbated a pre-existing weakness caused by the natural ageing process.  The condition however did cause the plaintiff certain degree of psychological problems leading to depression.  The Court awarded HK$180,000 for PSLA.

168.  It was held that the case was not a severely disabling condition and the plaintiff could perform all the activities of daily living.  The Court also factored into the award a very real element of exaggeration of symptoms.

169.  It is submitted by the Defendant that Chan Chun Keung case was more serious than those of the Plaintiff here.  Dr. Lam here doubted the severity of the Plaintiff’s complaints here as they are largely subjective.  He said a soft tissue injury of the Plaintiff’s nature, the neck condition should not persist in such a severe manner as alleged.

170.  The Plaintiff admitted in the witness box that his orthopaedic condition and psychiatric condition had both improved since the joint assessments.

171.  There is also no dispute that the Plaintiff had pre-existing degenerative back and neck.  His depressive episode is mild in nature.  I agree that the Plaintiff here exaggerated his symptoms and disabilities.

172.  In the present case, I found a reasonable award for PSLA is $300,000.

Pre-trial loss of earnings including MPF

173.  As said, this Court does not accept that at time of accident, Plaintiff was employed by Lee Hang or at all.

174.  Further, as his counsel said in the civil proceedings brought against him, the stigma of prosecution adversely affects him getting employment.

175.  In fact, evidence from the Plaintiff showed Plaintiff’s employment, whether with Kowloon Fish Meal Factory Ltd or the 廣州巿越秀區淘氣寵物用品店 are totally unaffected by the accident.

176.  There is no causal link between the unemployment of the Plaintiff and the accident.  I make no award under this head.

Post-trial loss of earnings and MPF

177.  By reasons of matters aforesaid, similarly there is no award under this head.

Loss of earning capacity

178.  Plaintiff claimed a lump sum of $180,000 under this head.  He says because of the residual effect of the accident, he will face difficulties in the labour market.

179.  The case of Chan Wai Tong v Li Ping Sum (1985) 1 AC 446 at 460 states that this head of damages is intended to reflect:

“the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk: see Moeliker v A. Reyrolle & Co. Ltd. [1977] 1 W.L.R. 132, 140 where Browne L.J. dealt fully with this matter.”

180.  Although the previous jobs of the Plaintiff in the present case are mainly sedentary, this Court appreciates that there may be minimal limitation in his working capacity due to residual pain or tolerance in repeated actions for very prolonged period.  Accordingly, I find it appropriate to award the sum of $100,000 under this head.

Special damages

181.  Parties have previously agreed to the following items totalling $59,815.

Agreed items

182.  The following items were agreed between the parties.

	Medical Expenses	HK$
(1)(a)	Hospitalization
	- at SPH from 9/9/2002 to 18/9/2002 (10 days)	19115
	- meal charges for 10 days	1200
	- various articles of daily use	200
(1)(b)	Follow Up
	(i) at the A & E Department of KWH	100
	(ii) at Cosmo Physiotherapy Centre	1,640
	(iii) at Dr. Chang Shao’s clinic	400
	(iv) at Department of Psychiatry (PYNEH)	690
	(v) at Department of Clinical Psychology (PYNEH)	160
	(vi) at Orthopaedic Department (PYNEH)	100
	(vii) at Occupational Therapy Department (PYNEH)	100
(1)(c)	Tui Na and Massage	3,000
(2)	Travelling Expenses (Pre-trial)
(a)	For Plaintiff in attending medical consultations in Hong Kong &
(c)	For Plaintiff’s family to visit Plaintiff during his Hospitalization	15,000
(3)	Tonic food	3,000
(4)	Neck collar	150
(5)	Pillow for protection of spine	150
(6)	Fee to Homantin Vehicle Detention Pound	440
(7)	Car repairing fee	13,700
(8)	Survey report fee	670
	Subtotal:	$59,815

183.  It follows therefore that in respect of Special Damages, only the following items are in dispute.

184.  Plaintiff says that the treatments that he received in the P.R.C. have been necessary and reasonable and therefore the expenses on the same are recoverable.

(1) Pre-trial medical expenses

(a) Manual Physiotherapy in MGPH for 80 times from 22/11/2002  to 24/12/2004	$17,484.67
(b) Manual Physiotherapy in FAHGMS for 48 times from 27/12/2004 to 15/8/2007	$5,409.20

(2) Pre-trial travelling expenses

(a) For the Plaintiff in attending medical consultations in China (to 15/8/2007)

$58,595.00

185.  Although Dr. Chien opines that the treatment received in Guangzhou was necessary and appropriate to circumstances of the Plaintiff.  Dr. Lam noted that besides the consultations by Dr. Chang S., the Plaintiff had only received 2 consultations by the orthopaedic experts and 8 sessions of physiotherapy treatment in Hong Kong.

186.  According to the “graduation certificate” issued by the Sun Yat Sun University, Guangzhou dated 22 February 2004, the Plaintiff attended and completed the EMBA course from January 2003 till February 2004.

187.  During this time, Plaintiff said he was seeking medical treatment.  It is Plaintiff’s evidence that he attended the course only on weekends and that he only needed to take 4 subjects to complete the EMBA course.  Nothing was produced to substantiate his evidence.  In fact, in his witness statements to the Court, he never mentioned that he took the EMBA course during that time in Guangzhou.  It was the Plaintiff’s evidence that Dr. He never worked on Sunday, but in the summary of PRC medical receipts and travelling expenses, he did produce receipt for medical treatment allegedly by Dr. He on a Sunday.

188.  As discussed earlier, the Plaintiff also had a lot of other complaints which did not result from the accident, e.g. the unequal leg length.

189.  There is no report from MGPH on what treatments the Plaintiff received and what complaints these treatments were directed.  The Court is therefore not able to assess the necessity of the treatment received.

190.  When we read the medical record prepared by Dr. He, one could see that Dr. He did treat the Plaintiff in respect of his problems not relating to the accident, e.g. leg length unequal.  In the absence of clarification from the Plaintiff, I do not find it proved that these treatments and expenses claimed are wholly or partially, directed to the residual effect of the accident or that they are necessary.  I would disallow these items in full.

Future medical and travelling expenses

191.  Plaintiff claims $150,000 under this head.  He said he intends to be further treated by Dr. He in Guangzhou.

192.  Both orthopaedic experts do not agree to the recommendation of Dr. He that the Plaintiff be further treated.  Dr. Chien said Plaintiff had already reached maximum medical improvement and Dr. Lam also said further treatment is not necessary.

193.  I do not find any further treatment reasonable and necessary and I disallow the claim in full.

Household help expenses

194.  Plaintiff claimed $72,000 under this head.

195.  Witness for the Plaintiff, Madam Chan Sau Fong was the sister in law of the Plaintiff.  In fact, both sisters were the co-defendants together with the Plaintiff in the conspiracy case.

196.  It was admitted that she registered business bearing identical names to famous environment conservancy organizations in Hong Kong, as instructed by the Plaintiff, to receive funds from the employer of the Plaintiff then, Cathay Pacific Airways intended for these genuine environment conservancy organization.  As the sole signatory, she then gave the money to the Plaintiff’s wife and others.

197.  Madam Chan was commented by District Judge Alan Wright, as he then was in the conspiracy case DCCC 350/2003 as a compliant person who would be likely, as she said she did, to carry out the comparatively straightforward request or instructions of her brother in law, i.e. the Plaintiff here, also a person who may be regarded as her employer, without enquiry, particularly given the overbearing character he displayed.

198.  In this case, Madam Chan said in her witness statement she was asked by the Plaintiff’s wife to work for the Plaintiff since November 2002 for 18 months during which time she assisted both in the household chores and also assisted in looking after the Plaintiff.

199.  She was said to have exaggerated the injury of the Plaintiff when she said in her witness statement dated 28 June 2008 that she had to help Plaintiff going up and down the staircase in the Fairview Park home and that he walked with a limp as this contradicted the findings of Dr. Chang S. who says that the Plaintiff was walking unaided and without limp already in the first clinic follow-up as early as 28 September 2002, i.e. before she allegedly worked for the Plaintiff.

200.  In Court, she testified and said one of the reasons why her sister needed her was because she always had argument with the Plaintiff as Plaintiff became very irritable when talking to his wife.

201.  In the witness statement, Madam Chan says she worked at Plaintiff’s home from 8 am to 9 pm everyday and she was paid only $4,000 a month.  This, if true, was clearly exploitation.

202.  In the witness statement, she said as Plaintiff and his wife were relatives to her, after she received her wages in cash, she did not sign receipts.  Contradicting what she said, the Plaintiff produced 18 receipts allegedly signed by Madam Chan acknowledging payment of wages and instead of starting to work from 1 November 2002 as Madam Chan alleged, the receipts showed she actually starting working since 1 October 2002.  In Court, she corrected and said she started working 1 October 2002.  She could not explain why she said there was no receipts signed in her witness statement.  She said she was actually referring to MPF.  This explanation is not accepted by the Court.

203.  She was described as a “nurse” in these receipts whilst she said in Court her work was half for household chores and half for looking after the Plaintiff.

204.  It is noted that the wife of the Plaintiff does not work and there is no medical evidence before this Court that the medical condition of the Plaintiff at the time warrant the help of extra domestic help.  In fact, the Plaintiff in his witness statement stated he needed less help for using the staircases and toileting in late September 2002, i.e. before Madam Chan allegedly worked for him.

205.  Against this background, it must be remembered that the Plaintiff had during this period (i.e. from January 2003 to February 2004) chose to and was able to attend and complete the EMBA course in Guangzhou.

206.  I do not find it reasonable, in the circumstances, for Plaintiff to incur expenses for extra domestic help.

207.  This Court doubted also the authenticity of the alleged employment of Madam Chan, in view of the exaggerating and conflicting evidence by Madam Chan. I do not find her a reliable witness.  In view of the comments made by District Judge Wright, this Court would not be surprised if she had come to this Court to testify as instructed by the Plaintiff.

208.  As this Court does not accept as reasonable or necessary that there be extra domestic help given to the Plaintiff due to the accident and further that Madam Chan had worked as she said for the Plaintiff, no award is made under this head.

Summary

PSLA	$300,000
Pre-trial loss of earnings (including pre-trial Loss of MPF)	$0
Special damages	$59,815
Household help expenses	$0
Loss of future earnings	$0
Loss of earning capacity	$100,000
Future medical expenses and travelling expenses	$0
Total:	$459,815

Interest

209.  Interests on general damages at 2% per annum from the date of writ to date of judgment and therefore at full judgment rate and interests on special damages at half judgment rate from date of accident to date of judgment and thereafter at full judgment rate.

Cost

210.  I make a cost order nisi that the cost of and incidental to this assessment of damages hearing on District Court scale be to the Plaintiff, the same to be taxed if not agreed.