CHAN CHUN PONG v. WONG TSZ LUNG

HCPI 391/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 391 OF 2008

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ASSESSMENT OF DAMAGES

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1.  This is the assessment of the loss and damage suffered by the Plaintiff as a result of a traffic accident.

Background

2.  On 30 October 2006, the Plaintiff was driving a private car along the first lane of Clear Water Bay Road while the Defendant was driving his private car in the second lane in the same direction.  On approaching the junction with New Clear Water Bay Road, the Defendant suddenly steered his vehicle into the Plaintiff’s path causing the two vehicles to collide.  The Plaintiff’s vehicle further rammed into some railings to its left.   

3.  As a result of the accident, the Defendant was convicted of the offence of careless driving on 14 February 2007.

4.  On 2 June 2008, the Plaintiff commenced this personal injuries action against the Defendant for damages. 

5.  By a consent order dated 19 June 2008, judgment on liability was entered against the Defendant with damages to be assessed.

Overview

6.  According to the Revised Statement of Damages, the Plaintiff is claiming the following damages plus interest:

Pain, suffering and loss of amenities		$150,000
Loss of earnings -     Pre-trial -     Future	$257,096 $634,295	$891,391
Loss of earning capacity		$100,000
Special damages -     Medical expenses -     Traveling expenses -     Tonic food -     Towing fee	$6,520 $2,580 $10,000 $800	$19,900
		$1,161,291

7.  The Defence counsel submits in his closing submission that:

(a)   The Plaintiff made unreasonable demand for compensationimmediately after the accident.

(b)  Even if the Plaintiff’s injury was genuine, it was not serious and he has malingered.

(c)  The Plaintiff’s claim is suspicious and he has magnified his loss.

Relying on Wong Chiu Wa v Ng Yuk Chun[1] and Siu Leung Shang Peter v Chung Wai Ming[2], he invites me to award nominal damages to the Plaintiff.

8.  I think these cases are distinguishable.

(a)   In Wong Chiu Wa, the plaintiff was pushed forward for 2 to 3 paces from behind by a reversing van.  She claimed to have suffered post-traumatic stress disorder as a consequence of her subjective perception of the accident.  The defendant’s expert was of the view that she had malingered.  The court concluded after trial that the plaintiff had presented complaints without any basis.  The court found that she had received no more than a mild bump on the back which had been properly and adequately treated with analgesics and awarded her $30,000.  The court dismissed her other claims on medical expenses and loss of earnings, commenting that they were the fruits of her own ill-fated scheme.

(b)  In Siu Leung Shang Peter, the plaintiff sustained neck injury as a result of a traffic accident.  He claimed that his injury had persisted as a permanent disability with continued pain and loss of enjoyment of life and had prevented him from returning to his pre-accident profession.  After trial, the court accepted the opinion of the defendant’s expert that the plaintiff’s disability was degenerative in origin.  The court found that the accident had only caused soft tissue injury to the Plaintiff’s neck the effect of which was mild and of short duration and awarded the Plaintiff $30,000.

9.  Unlike the cases cited, the Defendant’s own orthopaedic expert Dr Patrick Wong has accepted that the Plaintiff did sustain neck injury as a result of the accident.  The Plaintiff’s orthopaedic expert Dr Chan Sai Keung takes the view that the Plaintiff had also injured his back.  There is also some evidence supporting the Plaintiff’s claim for loss of earnings.  Whether the Plaintiff’s injury is as severe as what he would want us to believe and whether he has suffered as much loss as he has claimed will have to be examined in more detail.  The Defence counsel’s specific criticisms on the Plaintiff’s case will be discussed below.  In my view, this is not a clear case of malingering and magnification of claim so much so that I can safely send the Plaintiff away with a nominal award. 

10.  As an alternative to a broad-brush approach, the Defendant answers the Plaintiff’s claimas follows:

PSLA		$50,000
Loss of earnings -     Pre-trial -     Future	$44,100 Nil	$44,100
Loss of earning capacity		Nil
Special damages -     Medical expenses -     Traveling expenses -     Tonic food -     Towing fee	$3,520 $2,580 $3,000 $800	$9,900
		$104,000

Injuries and treatment

11.  The collision occurred at about 7:45 pm.  The Plaintiff did not seek immediate medical attention after the collision.  Instead, he demanded the Defendant to pay him $60,000 as compensation.  When the negotiation was going nowhere, he got into the Defendant’s private car and drove the Defendant and his friend back to his garage for further negotiation.  The Defendant finally made a report to the police at about 11:30 pm when the parties could not reach a settlement.  The parties then assisted the police with the investigation, which was not concluded until about 1:40 am. 

12.  The Plaintiff sought treatment from the Accident and Emergency Department (“A&E”) of Tseung Kwan O Hospital (“TKOH”) on 1 November 2006.  According to the relevant medical report and record, the Plaintiff then complained only of neck pain.  The attending doctor noted mild tenderness over the Plaintiff’s neck.  X-ray did not reveal any fracture in the neck.  The clinical diagnosis was sprain neck.  The Plaintiff was given some oral analgesics and analgesic balm and was granted sick leave until 5 November 2006.

13.  The Plaintiff returned to A&E of TKOH on 6 November 2006.  This time, he complained of back pain in addition to residual neck pain.  The attending doctor did not find any bony tenderness over the neck and the lumbro-scaral spines.  X-rays of the neck and back also showed no bony lesion.  The clinical diagnosis was sprained neck and back.  The Plaintiff was again given oral analgesics and analgesic balm and was granted sick leave until 7 November 2006.

14.  The Plaintiff returned to A&E of TKOH one more time on 8 November 2006.  According to the relevant medical report and record, he still complained of residual neck pain.  He was given some oral analgesics and was granted sick leave until 12 November 2006.

15.  The Plaintiff then began consulting Dr Wong Shu Kai (“Dr SK Wong”), a specialist in general surgery.  During the first visit on 13 November 2006, the doctor noted that the Plaintiff’s neck was tender and rigid and his right shoulder was tender on internal and external rotation of the right shoulder joint.  The doctor also noted tenderness in the Plaintiff’s lower back and that the Plaintiff could flex his trunk for twenty degrees only.  The clinical diagnosis was neck and lower back sprain.  Three days of analgesics were prescribed and sick leave was granted until 26 November 2006.

16.  Thereafter, the Plaintiff returned to Dr SK Wong on 28 November 2006, 11 December 2006, 28 December 2006, 8 January 2007, 22 January 2007, 5 February 2007 and 22 February 2007.  The doctor invariably prescribed three days of analgesics and granted a 2-weeksick leave to the Plaintiff after each consultation, and the Plaintiff would return on or immediately after the expiry of the sick leave granted.

17.  The Plaintiff also sought treatment from the Department of Orthopaedics and Traumatology (“O&T”) of TKOH on 28 February 2007.  According to the relevant medical report and record, the Plaintiff complained of neck and back pain without numbness or weakness.  Physical examination showed tenderness over both his cervical and lumbar para-spinal muscle with limitation in the back movement due to pain.  There was also tenderness over the right upper trapezius muscle.  The doctor, however, could find no neurological deficit.  Analgesics were prescribed and the Plaintiff was referred to physiotherapy.

18.  The Plaintiff consulted O&T of TKOH again on 29 March 2007, 3 May 2007, 31 May 2007, 12 July 2007, 18 October 2007, 13 December 2007 and 5 February 2008.  At the last consultation on 5 February 2008, the doctor refused to grant any more sick leave to the Plaintiff despite his complaint of pain limiting his neck movement.

19.  The Plaintiff undertook a work capacity evaluation at United Christian Hospital (“UCH”) on 31 July 2007.  According to the relevant report, the Plaintiff’s lifting capacity and the range of motion of his neck were restricted by neck pain.  The intensity of neck pain would increase significantly when the Plaintiff was performing tasks that required sustained neck extension or flexion.  It was concluded that the Plaintiff’s working capacity did not match his job demand of a car mechanic.

20.  On 13 May 2008, the Plaintiff was examined by the orthopaedic experts engaged by the parties for this action (Dr Chan for the Plaintiff and Dr Patrick Wong for the Defendant).  According to their joint medical report, the Plaintiff then complained of:

(a)  Neck and back pain during exertion at work (e.g. when lifting objects of over 20 pounds).

(b)  Mild to moderate neck and back pain after sitting for 20 to 30 minutes.

(c)  Pain when laying down in the “wrong” posture.

(d)  He had been awakened from sleep by neck and back pain for about 10 times in the past 6 months.

(e)  He had been less agile in putting on clothes, shoes, socks or picking up objects on the floor or cutting toe nails or getting on and off public transport.

(f)   He needed to take a rest after walking for 15 to 20 minutes.

21.  The following points may be noted from the joint reports of the experts:

(a)  They accepted that the Plaintiff had no pre-existing lesion to his neck and back. 

(b)  They both noted listing to the right side and reversed lordosis of the cervical spine and slight narrowing of C4/5 disc space in the x-ray of the cervical spine taken on 1 November 2006.  They agreed that the mal-alignment of listing to the right and reversed lordosis were likely caused by the accident, but the narrowing of C4/5 was probably not related to the accident.  X-ray of the cervical spine taken on 6 November 2006 showed that the reversed lordosis had resolved.  X-ray of the lumbar spine taken on the same date showed no abnormality.

(c)  Both experts agreed that the Plaintiff had sustained soft tissue sprain injury to his neck as a result of the accident.  Dr Chan opined that the Plaintiff had also sprained his back, whilst Dr Patrick Wong doubted whether the Plaintiff had genuinely sustained any significant injury to his back.

(d)  The Plaintiff had received conservative treatment with medication, physiotherapy and sick leave.  Both experts agreed that conservative treatment for soft tissue sprain injury was standard, adequate and appropriate.

(e)  They agreed that the Plaintiff had attained maximal medical improvement and required no further treatment.

(f)   Dr Patrick Wong found the Plaintiff’s complaints at the joint examination suspicious.  He noted signs of over reaction and considered the findings highly suggestive of symptoms being non-organic in origin.  Dr Chan thought that the Plaintiff’s reaction might just be body language conveying a painful back.

(g)  Both experts agreed that the Plaintiff was capable of returning to work as a car mechanic.  Dr Chan was of the view that the Plaintiff’s work efficiency would reduce, but Dr Patrick Wong considered any reduction to be minimal.

(h)  Dr Chan endorsed a 10-month sick leave period and assessed the Plaintiff as having suffered a 3% impairment of the whole person.  Dr. Patrick Wong considered a 3-month sick leave appropriate and opined that the Plaintiff had suffered 1% impairment of the whole person.

22.  In his witness statement dated 23 September 2008, the Plaintiff described his condition in more or less the same way as he had complained to the experts at the joint medical examination. 

23.  The Plaintiff has adopted his witness statement at the assessment and so his condition has somewhat stabilized 3 years after the accident.  He explains that car mechanics often have to craw underneath vehicles to effect repairs, move heavy parts around and work inside confined spaces, all of which require agile movement of the neck and back.  He claims that his neck and back injury has meant that he could no longer work as a car mechanic.

PSLA

24.  The Plaintiff was 29 years old at the time of the accident and is now aged 32. 

25.  As in any personal injuries action, the opinions of the medical experts are pertinent in the assessment of the plaintiff’s injury.  What divides the experts in this case is:

(a)  Whether the Plaintiff has also sprained his back in the accident?

(b)  Whether the Plaintiff has malingered?

(c)  What is the appropriate period of sick leave?

(d)  What is the effect of the Plaintiff’s injury (if any) on his pre-accident employment as a car mechanic?

(a) Whether the Plaintiff has also sprained his back in the accident?

26.  Dr Patrick Wong has doubted whether the Plaintiff genuinely sustained any significant back injury because he only complained of back pain for the first time on 6 November 2006, i.e. almost a week after the accident.

27.  Dr Chan has attempted to explain the lateness of the complaint by suggesting that the neck pain was then the dominant symptom.  I am afraid I cannot accept his explanation, as it is not supported by the Plaintiff’s evidence.

28.  The Plaintiff claimed in his witness statement that he had felt pain in both his neck and back after the collision.  He also alleges at the assessment that he had complained to the doctor on 1 November 2006 of back pain.  So, it is not the Plaintiff’s evidence that he had initially neglected to mention his back pain because neck pain was then the dominant symptom.

29.  On the other hand, I do not find the Plaintiff’s allegations believable either.

(a)  The Plaintiff has admitted under cross-examination that he did not complain to the Defendant or to the police officers subsequently attending the scene for investigation of any neck or back pain.  The fact that the Plaintiff was able to get into the Defendant’s private car and drive it to his garage and thereafter to carry on hours of negotiation and investigation without any complaint is telltale of the triviality of any injury sustained by him.

(b)  I also find it unlikely that the Plaintiff had made a complaint of back pain on 1 November 2006.  If he had done so, the attending doctor would have noted that in the record and conducted some examination on his back such as taking x-ray.

(c)  There is no physiological finding confirming any significant back injury.

30.  For the above reasons, I am inclined to accept Dr Patrick Wong’s opinion on the balance of probabilities that the Plaintiff did not sustain any significant injury to his back as a result of the accident.

(b) Whether the Plaintiff has malingered?

31.  In my view, there is ample evidence at every stage that the Plaintiff’s injury was anything but serious and that he has exaggerated his symptoms and disabilities.

(a)  I have dealt with the immediate aftermath of the accident.  To recapitulate, the Plaintiff was able to drive and carry on lengthy negotiation and investigation after the accident without any complaint of neck or back pain.

(b)  I have found as a fact that the Plaintiff only complained of back pain almost a week after the accident.  However, the treating doctor could find no abnormality. 

(c)  Between November 2006 and February 2007, the Plaintiff persistently complained to Dr SK Wong of neck and back pain with restricted movement of his head and trunk.  Each time, the doctor prescribed 3 days of analgesics and granted him 2-week sick leave.  The Plaintiff invariably returned for more treatment at or after the expiry of the sick leave granted.

The Plaintiff was cross-examined as to how he had managed the pain and discomfort in-between consultations after he had finished taking the prescribed analgesics.  He claimed that Dr SK Wong had issued him with written prescription so that he might purchase his own medicine and save some money.  However, there is no record of any written prescription issued to the Plaintiff in Dr SK Wong’s record. 

When the Plaintiff was asked why he did not claim for the analgesics purchased and why he had not produced the relevant receipts, he initially replied that he had not retained the receipts.  When pressed further, he said the receipts were not computer-printed and so he thought they were useless.  I find these explanations incredible.

(d)  The Plaintiff was still complaining of neck and back pain at the consultation at O&T of TKOH on 12 July 2007.  However, the doctor could discern no abnormality and told the Plaintiff to put aside any legal issue and to report any pain genuinely.  He was also advised to gradually re-engineer himself back to his previous working capacity.  The doctor nonetheless granted him 50 days of sick leave.

(e)  In my view, the conclusion of the work capacity evaluation conducted on 31 July 2007 is unreliable.  The occupational therapist conducting the work capacity evaluation has noted in the report that:

(i)  the Plaintiff only passed 9 out of 23 consistency measures, indicating that he had applied conditionally reliable effort during the evaluation; and

(ii)  the Plaintiff had applied a sub-maximal effort in the rapid exchange test for both hands.

In the circumstances, I have decided to attach minimal weight on the conclusion.

(f)   According to the relevant medical record, the doctor at O&T of TKOH had doubted the genuineness of the Plaintiff’s complaint of neck and back pain on 18 October 2007.  Be that as it may, he still granted a further 57 days of sick leave to him.

(g)  Finally, the doctor treating the Plaintiff at O&T of TKOH on 5 February 2008 refused to grant him further sick leave.

(h)  Dr Patrick Wong noted signs of over reaction at the joint examination on 13 May 2008.  He considered that the Plaintiff’s reaction was obviously out of proportion to his age and to the average patient sustaining similar injury.  The Plaintiff could even anticipate pain before the test was conducted.  Simulation tests were positive and straight leg raising test in the supine and sitting positions were inconsistent.  All these, according to the doctor, are indicative of symptoms being non-organic in origin.

Dr Chan agreed there were positive non-organic signs which could not be explained by the injury sustained by the Plaintiff as a result of the accident and that some evaluators might interpret that as symptom magnification.  He, however, did not find that to be uncommon in patients with chronic back pain and thought that the Plaintiff’s reaction might just be his body language suggesting a painful back.  I do not accept Dr Chan’s explanation in view of the surveillance evidence. 

(i)    The Defendant has put the Plaintiff under surveillance.  There is a marked difference between the Plaintiff’s condition both before and after the joint examination on 13 May 2008 as revealed from the surveillance evidence and the complaints he made to the experts.  Before the examination, the Plaintiff was seen walking normally on the street, turning his head and moving around without any difficulty.  After the examination, he was also seen talking on his mobile phone (requiring neck movement) and getting into the passenger seat of a private car (requiring bending of his back) with apparent ease. 

The Plaintiff was also seen driving a private car normally on 23 July 2008.  Footages of the above were shown to the Plaintiff at the assessment, which was not denied. 

32.  Lastly, the Plaintiff claimed in his Revised Statement of Damages that he had used to enjoy sports but his social life had since been greatly affected by the injury.  However, he has apparently told the experts during the joint examination that he had not played sports at leisure prior to the accident.  Most importantly, the experts agreed that the Plaintiff’s social life would not be affected by his injury.

33.  In reaching the conclusions that the Plaintiff has sustained no significant back injury and has malingered, I have not neglected the fact that the Plaintiff has persistent complained of neck and back pain for almost 3 years and that some doctors (including orthopaedic specialists) have noted tenderness and restricted movement of his neck and back.  But pain is subjective in nature and not capable of scientific measurement while tenderness is merely pain or discomfort when the affected area is being touched.  As such, they are susceptible to feigning or exaggeration.  In my view, the evidence in this case as summarized above clearly points to the fact that the Plaintiff has exaggerated his injury.

(c) What is the appropriate period of sick leave?

34.  Dr Chan has endorsed a 10-month sick leave (i.e. up to the end of August 2007) for the Plaintiff’s injury to both his neck and back.  Given my above findings, there is no basis for me to accept his opinion.

35.  On the other hand, Dr Patrick Wong opined that the Plaintiff’s neck muscle spasm had resolved within a week after the accident and a 3-month sick leave (i.e. up to the end of January 2007) should be adequate for the Plaintiff to attain maximal medical improvement for his neck injury.

36.  Both experts agree that the Plaintiff only sustained mild soft tissue sprained injury to his neck.  The x-ray taken on 1 November 2006 showed reverse lordosis, which according to the experts indicated some muscle spasm due to the injury.  Such problem had resolved by 6 November 2006 as confirmed by the x-ray.  Dr Patrick Wong is of the view that most patients with minor sprain injury would recover in 6 weeks and a 3-month recovery time for the Plaintiff is more than adequate.  I accept his opinion.

(d) What is the effect of the Plaintiff’s injury (if any) on his pre-accident employment as a car mechanic?

37.  At the time of the accident, he was working for Cybermax Motors Company (“Cybermax”) as a self-employed car mechanic and a second-hand car salesman.

38.  Both experts agree that the Plaintiff can return to work as a car mechanic.

39.  Dr Chan is of the opinion that the Plaintiff’s work efficiency would decline and has recommended the Plaintiff to avoid over-exertion and to take intermittent rests and seek assistance when lifting heavy objects. 

40.  Dr Chan has not elaborated on why he considered there would be reduced work efficiency.  I have decided to place minimal weight on the result of the work capacity evaluation.  With respect to the doctor, his recommendations to the Plaintiff are too general and can be applied to all car mechanics.  As the experts could identify no significant cause for any reduction of work efficiency, I accept Dr Patrick Wong’s opinion that any reduction in work efficiency should be minimal. 

(e) The proper award

41.  For the above reasons, I find that the Plaintiff only sustained mild soft tissue sprain injury to his neck as a result of the accident.  I find that his neck injury has substantially resolved by the medical treatment and physiotherapy he received.  I do not accept that he has sustained any significant injury to his back and I reject his evidence on the persistency and severity of his injury.  Both experts agree that the Plaintiff should be capable of managing his daily activities and the injury will not affect his social life.  Any reduction of his work capacity is minimal.

42.  The Plaintiff’s counsel has asked me to consider these comparables: Tai Yuk Wong v Ching Kwok Fung[3], Poon Yat Chiu v AES Scaffold Engineering Limited[4], Limbu Man Bahadur v Tsang Chan Fai[5], Chu Chung Wah v Ng Tung Pak[6], Chan Mei Hing v Lam Kok Heng[7], and Ashok v Kam Kee Construction Works Limited[8].  I do not find these cases helpful, as they involve injuries of a different nature or severity.

43.  The cases cited by the Defence counsel are more relevant.  I have already noted the case of Siu Leung Shang Peter (which was also relied on by the Plaintiff’s counsel) and the case of Chan Chun Wa above.

(a)  In Yip Tung Fung v Pun Chi Leung[9], the 1^st plaintiff was awarded $40,000 for PSLA for the soft tissue injury and some discomfort or irritation in the neck area, which problem had substantially resolved upon physiotherapy and medical treatments taken.

(b)  In Mohammed Ashaq v Royal Honour Industrial Limited[10], the plaintiff was awarded $50,000 for the soft tissue injury on his left shoulder and back which had recovered well and with little or minor permanent disability.

44.  Having regard to the Plaintiff’s injury, the duration of sick leave and the above comparables, I consider that an award of $50,000for PSLA should be appropriate.

Loss of earnings

45.  The crucial issue here is on the pre-accident income of the Plaintiff.

46.  It is the Plaintiff’s case that at the time of the accident he was working for Cybermax as a self-employed car mechanic and a second-hand car salesman.  He was paid a salary of $600 per day for repairing cars.  On top of that, he was paid commission for successfully buying and selling second-hand cars.  The amount of commission payable to him was subject to agreement with the proprietor of Cybermax (“Ms Lai”) and varied from transaction to transaction.  The Plaintiff claims that his pre-accident income (including both salary and commission) was about $21,480 per month.

47.  The Defence counsel has observed that the Plaintiff’s alleged pre-accident income is not supported by any bank document, tax document or MPF document.

48.  In response, the Plaintiff says he has used the bank account of his girlfriend (“Ms Ho”) to receive his income.  He has adduced in evidence the bank statements of Ms Lai and Ms Ho to confirm that there were indeed transfers between these accounts.  The Plaintiff and Ms Ho have tried to set out the Plaintiff’s pre-accident income in tabular form in their witness statements.  Unfortunately, these tables contain obvious errors.

49.  Quite understandably, the Defence counsel has criticized the Plaintiff’s evidence as both confusing and suspicious.  For example:

(a)  The Plaintiff initially claimed in his witness statement that he had received no income for about one and a half year after the accident.  This is contradicted by his later admission in his supplemental witness statement that he continued to receive commission from Cybermax for his dealings in second-hand cars after the accident.

(b)  He claimed in his statements to have requested Cybermax to pay him in cash, but the evidence at the assessment shows that there were both cash payments and bank transfers from Cybermax. 

(c)  The dates and amounts stated in the “salary receipts” do not match the entries in Cybermax’s records. 

(d)  The amounts said to have been paid to the Plaintiff according to Cybermax’s records and Ms Lai’s bank statements do not tally with the entries in Ms Ho’s bank statements. 

50.  Whilst it is unusual for the Plaintiff to use his girlfriend’s account to receive his income, I do not find that incredible.  The Plaintiff has explained that he is not good in managing his own financial affairs and so he has relinquished control to his girlfriend.  The Plaintiff’s employment contracts with Cybermax have also recorded the Plaintiff’s request to receive payment through Ms Ho’s bank account.

51.  The Plaintiff and Ms Lai have explained in evidence why the dates and amounts stated in the “salary receipts” and Cybermax’s records are different.  Put it simply, Cybermax would confirm with the Plaintiff in each month the number of days the Plaintiff had worked in the previous month so that his salary as a car mechanic might be calculated.  The date when they reckoned with each other was printed on the “salary receipts”, whereas the dates of payment were noted in Cybermax’s records.  Moreover, only the salary portion of the Plaintiff’s income was noted in the “salary receipts” but Cybermax’s records contained both the salary and the commission paid to the Plaintiff in each month. 

52.  It is Ms Lai’s evidence that she sometimes paid the Plaintiff in cash and sometimes by bank transfers.  That explains why the payments recorded in Cybermax’s records and Ms Lai’s bank statements do not tally with the entries in Ms Ho’s bank statements. 

53.  The Defence counsel is right in observing that there is no objective evidence such as tax returns or MPF statements to confirm the Plaintiff’s pre-accident income.  He goes so far as to suggest that the Plaintiff and his witnesses have tailored their evidence to suit the documentary evidence.  I do not accept his submission. 

54.  I have decided to accept this aspect of the Plaintiff’s case on balance of probabilities in view of the documentary evidence and the testimony of Ms Ho (the Plaintiff’s girlfriend) and Ms Lai (Cybermax’s proprietor).  No alternative explanation has been advanced to explain those matching entries in Ms Lai’s account and Ms Ho’s account.  Ms Ho and Ms Lai were both subjected to detailed cross-examination by the Defence counsel and they remained unshaken.  In my view, it is unlikely that they could have tailored their evidence in support of the Plaintiff’s claim. 

55.  Based on the employment contracts of the Plaintiff, the payment records kept by Cybermax and the bank statements, I have reconstructed the income received by the Plaintiff at Appendix A to this judgment.

56.  In calculating the salary portion of the Plaintiff’s income, I have decided to consider only the period between January and October 2006 as his daily salary was raised to $600 in January 2006.  Hence, the Plaintiff’s pre-accident salary is about $16,260 a month [i.e. ($147,600 + $600 x 30 x 10/12)/10].

57.  I will take into account as many months before the accident as possible in calculating the commission portion of the Plaintiff’s income, as there is no fixed pattern in the commission earned.  However, the Plaintiff has not provided the necessary evidence to calculate the commission earned by him prior to May 2005.  Hence, the Plaintiff was earning commission at about $7,023 per month before the accident [i.e. $126,413/18].

58.  The Plaintiff’s pre-accident income is therefore $23,283 a month [i.e. $16,260 + $7,023].

59.  I have accepted Dr Patrick Wong’s opinion that 3-months’ sick leave is appropriate (i.e. up to the end of January 2006).  During that period of time, the Plaintiff earned $17,571 commission for buying and selling second-hand cars for Cybermax.  Hence, the Plaintiff’s pre-trial loss of earnings comes to $52,278 [i.e. $23,283 x 3 – $17,571].

60.  There is no basis to award any future loss of earnings as I have accepted that the Plaintiff can return to his pre-accident job as a car mechanic and that any residual effect of the Plaintiff’s injury on his work would be minimal.

Loss of earning capacity

61.  This head of damages is meant to cover 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 disadvantages in the labour market.  Given my above findings, I do not accept that the Plaintiff will suffer any disadvantage in the labour market in future.  There is no basis for making such an award.

Special damages

62.  On medical expenses, I shall award $3,580 which is the medical expenses incurred by the Plaintiff up to the end of January 2007 as stated in Exhibit 1.

63.  I agree with the Defence counsel that $1,000 is more than sufficient to cover the Plaintiff’s traveling expenses up to the end of January 2007.

64.  There is no receipt in support of the claim for tonic food.  The Plaintiff has frankly admitted under cross-examination that he was not advised by any doctor to consume tonic food.  In those circumstances, I agree with the Defence counsel that an award of $3,000 is appropriate.

65.  Towing fee of $800 is not challenged and is awarded.

66.  Hence, the total amount of special damages allowed is $8,380.

Conclusion

67.  For the above reasons, the loss and damages suffered by the Plaintiff as a result of the accident is assessed as follows:

PSLA		$50,000
Loss of earnings -     Pre-trial -     Future	$52,278 Nil	$52,278
Loss of earning capacity		Nil
Special damages -     Medical expenses -     Traveling expenses -     Tonic food -     Towing fee	$3,580 $1,000 $3,000 $800	$8,380
		$110,658

68.  Interest is payable on the award for PSLA at 2% per annum from the date of the writ to the date of judgment and on pre-trial loss of earnings and other special damages from the date of the accident to the date of judgment at half judgment rate, and thereafter at judgment rate until payment.

69.  There is no reason why costs should not follow the event. I therefore make a costs order nisi that the Defendant shall pay the Plaintiff costs of this assessment of damages (with all the reserved costs, if any) to be taxed if not agreed.

Appendix A

Schedule of the Plaintiff’s income

Pre-accident

Period	Salary	Commission	Total
February 2004	?	?	$25,000 [260]
March 2004	?	?	$18,200 [260]
April 2004	?	?	$21,000 [260]
May 2004	?	?	$20,000 [260]
June 2004	?	?	$16,400 [91]
July 2004	?	?	$11,000 [260]
August 2004	?	?	$14,616 [260]
September 2004	?	?	$16,000 [260]
October 2004	?	?	$29,600 [260]
November 2004	?	?	$22,000 [260]
December 2004	?	?	$10,500 [260]
January 2005	?	?	$32,000 [262]
February 2005	?	?	$47,800 [262]
March 2005	?	?	$14,500 [262]
April 2005	?	?	$30,000 [262]
May 2005	$13,750 [264.12]	$6,250	$20,000 [262]
June 2005	$13,750 [264.12]	$6,250	$20,000 [262]
July 2005	$13,750 [264.12]	$6,250	$20,000 [262]
August 2005	$14,300 [264.13]	$5,319	$19,619 [262]
September 2005	$14,300 [264.13]	$15,056	$29,356 [262]
October 2005	$13,750 [264.13]	$10,250	$24,000 [262]
November 2005	$14,300 [264.14]	$3,700	$18,000 [262]
December 2005	$14,850 [264.14]	$6,138	$20,988 [262]
Bonus for 2005	$16,500 [264.14]	–	$16,500 [264.14]
January 2006	$13,800 [264.15]	$9,700	$23,500 [264]
February 2006	$12,000 [264.15]	$8,000	$20,000 [264]
March 2006	$15,600 [264.15]	$4,400	$20,000 [264]
April 2006	$14,400 [264.16]	$1,100	$15,500 [264]
May 2006	$15,600 [264.16]	$4,400	$20,000 [264]
June 2006	$15,600 [264.16]	$4,400	$20,000 [264]
July 2006	$15,000 [264.17]	$5,000	$20,000 [264]
August 2006	$15,600 [264.17]	$12,700	$28,300 [264]
September 2006	$15,600 [264.17]	$6,900	$22,500 [264]
October 2006	$14,400 [264.18]	$10,600	$25,000 [264]

Post-accident

November 2006	Nil	$10,071 [264.1]	$10,071
December 2006	Nil	$4,500 [264.1]	$4,500
January 2007	Nil	$3,000 [264.2]	$3,000
February 2007	Nil	$1,000 [264.2]	$1,000
March 2007	Nil	$4,000 [264.2]	$4,000
April 2007	Nil	$1,000 [264.2]	$1,000
May 2007	Nil	$2,500 [264.2]	$2,500
June 2007	Nil	$1,300 [264.2]	$1,300
July 2007	$1,000 [276]	$1,000 [264.2]	$2,000
August 2007	$2,000 [276]	$2,000 [264.2]	$4,000
September 2007	$2,500 [276]	$2,000 [264.2]	$4,500
October 2007	$2,750 [276]	Nil [264.2]	$2,750
November 2007	$2,500 [276]	$2,000 [264.2]	$4,500
December 2007	$3,000 [276]	$4,000 [264.2]	$7,000
January 2008	Nil [78]	$1,000 [78]	$1,000
February 2008	$5,500 [78 & 277]	$2,000 [264.3]	$7,500
March 2008	$5,500 [78 & 277]	Nil [264.3]	$5,500
April 2008	$5,500 [78 & 277]	$2,100 [264.3]	$7,600
May 2008	$5,500 [78 & 277]	$2,800 [264.3]	$8,300
June 2008	$5,500 [78 & 277]	$5,000 [264.3]	$10,500
July 2008	$5,500 [78 & 277]	$4,500 [264.3]	$10,000
August 2008	$5,500 [78 & 277]	$1,000 [264.3]	$6,500
September 2008	$5,500 [78 & 277]	Nil [264.3]	$5,500
October 2008	$6,000 [264.4]	$2,000 [264.4]	$8,000
November 2008	$6,000 [264.4]	$1,000 [264.4]	$7,000
December 2008	$6,000 [264.4]	$9,000 [264.4]	$15,000
January 2009	$6,000 + $1,500 [264.5]	$5,000 [264.5]	$12,500
February 2009	$6,000 + $1,500 [264.5]	$8,000 [264.5]	$15,500
March 2009	$6,000 + $1,500 [264.5]	$7,000 [264.5]	$14,500
April 2009	$7,500 [264.5]	$12,000 [264.5]	$19,500
May 2009	$7,500 [264.5]	$10,000 [264.5]	$17,500
June 2009	$7,500 [264.5]	$6,000 [264.5]	$13,500

Notes:

(1)    [no.] denotes page reference in the trial bundle.

(2)    The total salary earned between January and October 2006 was $147,600.

(3)    The total commission earned between May 2005 and October 2006 was $126,413.

(4)    The total commission earned between November 2006 and January 2007 was $17,571.

[1] unreported, HCPI 258/1999, Master de Souza, 16 November 2001

[2]unreported, HCPI 43/2006, Deputy High Court Judge Gill, 16 March 2007

[3] unreported, DCPI 1405/2005, HH Judge Yuen, 8/3/2006

[4]  unreported, DCPI 223/2005, HH Judge Chow, 21/3/2007

[5] unreported, HCPI 486/2003, Mr Recorder Kwok SC, 29/7/2004

[6] unreported, HCPI 547/2003, Master Jeffries, 15/12/2004

[7]  unreported, HCPI 786/2004, Master Kwang, 11/12/2006

[8]  unreported, HCPI 691/2004, Master Hui, 29/3/2006

[9]  unreported, DCPI 2149/2006, HH Judge Ng, 23/11/2007

[10] unreported, DCPI 586/2007, HH Judge HC Wong, 27/11/2007