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HCPI 779/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 779 OF 2006
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| BETWEEN |
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LIU CHEN (劉琛) |
Plaintiff |
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And |
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CHAN POON WING |
1st Defendant(Discontinued) |
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KEUNG WAI MING (姜偉明) |
2nd Defendant |
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Coram : Before Master Marlene Ng in Court
Dates of Hearing : 2 October 2009, 1 December 2009 and 8 January 2010
Date of Handing Down Judgment : 13 April 2010
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ASSESSMENT OF DAMAGES
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I. INTRODUCTION
1. On 18 September 2003, the Plaintiff was knocked down by a motor vehicle owned by the 1st Defendant and driven by the 2nd Defendant whilst crossing the street (“Accident”). On 11 September 2006, the Plaintiff commenced the present proceedings against the 1st and 2ndDefendants claiming for damages for personal injuries. On 2 November 2006, judgment on liability was entered against the 2nd Defendant for damages to be assessed. On 13 December 2007, the Plaintiff discontinued his claim against the 1st Defendant. This case came before me for assessment on damages.
2. The Revised Statement of Damages filed on 6 November 2008 originally put the Plaintiff’s claim for damages in the sums of HK$20,167,193.00 and RMB¥3,382,416.60. At the assessment hearing, the Plaintiff sought leave to further revise the Revised Statement of Damages twice. By the time of closing submissions, the Further Re-Revised Statement of Damages reduced the Plaintiff’s claim for damages to HK$888,098.00 and RMB¥3,572,078.90.
3. The Plaintiff was the sole witness at the assessment hearing. He only filed and served his witness statement dated 30 September 2009 (with redaction of certain paragraphs and annexures) on the first day of the assessment hearing on 2 October 2009 (see my Reasons for Directions dated 7 October 2009).
4. Mr Cheuk, counsel for the Plaintiff, was at pains to point out that the 2nd Defendant failed to plead any positive case against the Plaintiff’s claim for damages or call any witness or adduce any document as to quantum. But I cannot agree with his suggestion that the Plaintiff’s “unchallenged evidence and documents” necessarily prevail over the 2nd Defendant’s “bare denials”. In my view, the Plaintiff carried the burden to establish his claim for damages on the balance of probabilities by credible and reliable evidence.
5. In assessing the Plaintiff’s credibility, I bear in mind the intrinsic value of his evidence in light of the discovered documents, expert medical evidence and inferences based on inherent probabilities and/or undisputed facts. Whilst I accept the Plaintiff suffered serious initial injuries as a result of the Accident, he did not impress me as a credible or reliable witness on the core matters in dispute. I am not persuaded that his residual disabilities and impairments were as substantial and/or debilitating as he would have the court believe, or that he had been telling the whole truth about his post-Accident work impairment and/or the nursing care, tonic food and/or medical attention he required and/or will require.
6. The single joint orthopaedic, neurological and gastroenterology expert reports of Dr Lam Kwong Chin (“Dr Lam”), Dr Edmund Woo (“Dr Woo”) and Dr Chan Wai Man (“Dr Chan”) dated 16 August, 10 July and 24 July 2007 respectively (“Lam, Woo and Chan Reports”) pursuant to their medical examinations of the Plaintiff in early July 2007 were adduced as expert medical evidence at the assessment hearing without oral evidence.
7. As regards documentary evidence, both parties agreed that the documents at pages 94-110, 120-126, 223, 235, 240, 244, 259-281 and 291-308 of the assessment bundle be expunged.
II. PLAINTIFF’S BACKGROUND
8. At the time of the Accident, the Plaintiff was 46 years old. He received education up to university level and was a civil servant in Mainland China. He was a Deputy Chief (副局長) of the Foreign Investment Trade and Economic Co-operation Bureau of Huangshi City, Hubei Province (湖北省黃石市對外貿易經濟合作局, “Bureau”), and was in Hong Kong on 18 September 2003 as a member of the Hubei trade delegation. The Plaintiff’s wife (“Wife”) was also a civil servant in Mainland China.
9. The Plaintiff denied any significant past medical problems apart from a history of chronic peptic ulcer for over 10 years. According to the Chan, Woo and Lam Reports, he played badminton and basketball, and regularly cycled, swam and jogged in his leisure time prior to the Accident.
III. INJURIES AND TREATMENT
(a) Injuries and treatment in Hong Kong
10. The Plaintiff lost consciousness upon impact of the collision and was sent to Ruttonjee and Tang Shiu Kin Hospital (“RTSKH”) for resuscitation. He received endotracheal intubation and insertion of intercostal chest drain, and was transferred to Pamela Youde Nethersole Eastern Hospital (“PYNEH”). He was comatose upon arrival at PYNEH.
11. Physical examination showed swelling over the right side of the Plaintiff’s forehead, 3 cm laceration found on the left side of his face, haematoma at the back of his head, and abrasion on the left side of his chest with underlying surgical emphysema. Bedside ultrasonic examination showed the presence of free fluid in the peritoneal cavity. The Plaintiff was given fluid resuscitation and admitted to the intensive care unit (“ICU”) for further management.
12. On 19 September 2003, the principal diagnoses and emergency operation/treatment were as follows: (a) liver laceration and splenic laceration extending to parenchyma requiring laparotomy of which splenectomy and plication of bleeding liver laceration were performed, (b) multiple rib fractures (right 4th to 6th ribs and left 4th to 7th ribs) with right pneumothorax requiring insertion of chest drain, (c) severe head injury with Glascow coma score 5 and subarachnoid haemorrhage treated conservatively, (d) right knee injury, ie posterior cruciate ligament (“PCL”) injury, and (e) open wound of the face and scalp laceration with suturing performed.
13. Post-operation the Plaintiff was nursed in the ICU for 4 days during which he required mechanically-assisted ventilation. His family alleged his conscious level improved by about a week after the Accident. He regained consciousness on day 5 of the Accident, opened his eyes at day 6, talked at day 9, and resumed diet on day 11. The Plaintiff was returned to the surgical ward when he became stable. All clinical aspects were improving, and repeated CT scans of thorax, abdomen and brain showed his subsequent recovery was satisfactory. The abdominal clips and facial stitches were off on 28 September 2003. Occurrence of overwhelming infection after splenectomy was not recorded. There was good union with the wounds.
14. The Plaintiff was discharged on 3 October 2003. The Wife told Dr Woo that at that time the Plaintiff was barely aware of his family, and was still incontinent and wheelchair-bound. PYNEH did not make any follow up arrangement as the Plaintiff was to return to Mainland China. He was granted sick leave from 18 September to 16 December 2003.
(b) 1st PRC Hospital Stay
15. The Plaintiff returned to Huangshi City and was admitted to Hubei Huangshi City Central Hospital (“PRC Hospital”) from 4 October to 15 December 2003 (ie 73 days) for further rehabilitation of his head, chest, abdominal and right knee injuries (“1st PRC Hospital Stay”). He was treated conservatively. Repeat x-rays, ultrasound and another CT brain scan did not show any abnormality. His scalp wound was infected and had to be drained. His pleural effusion was tapped. He had another MRI scan of the right knee which showed swelling of the anterior cruciate ligament (“ACL”).
(c) Outpatient treatment in Hong Kong
16. The Plaintiff made quite a remarkable recovery. When he was discharged from the PRC Hospital on 15 December 2003, he was ambulatory with the aid of the Wife. On the very next day, he was already in Hong Kong seeking treatment from PYNEH’s accident and emergency department (“AED”), and was granted sick leave for “post-traffic accident visual and hearing impairment” from 16 to 19 December 2003. PYNEH’s AED arranged for the Plaintiff to attend the neurosurgery clinic on 19 December 2003, and on that day the neurosurgery clinic granted him sick leave until 12 January 2004 for “Head Injury. Road Traffic Accident”.
17. No medical reports or records in respect of the Plaintiff’s attendances at PYNEH on 16 and 19 December 2003 were made available to the court. Although the Plaintiff complained of post-traumatic visual and hearing impairment to PYNEH’s AED on 16 December 2003, there was no evidence to suggest that the doctor(s) at PYNEH regarded such complaints to be significant. Indeed, such doctors did not recommend any inpatient treatment, but only scheduled outpatient follow up for such complaints. However, the Plaintiff did not attend the scheduled follow up at PYNEH on 12 January 2004 or seek further treatment from PYNEH after 19 December 2003.
(d) Return to work
18. The Plaintiff returned to work as Deputy Chief of the Bureau in late March 2004 or April 2004. But more of this later.
(e) 2nd PRC Hospital Stay
19. Notwithstanding the Plaintiff’s return to work in late March or April 2004, he was hospitalised at the surgery ward of the PRC Hospital on 20 March 2004 for dizziness and abdominal pain for 29 days until discharge on 17 April 2004 (“2nd PRC Hospital Stay”). On balance, I accept that such hospitalisation was a result of the Accident. Indeed, Dr Chan acknowledged that the laparotomy and release of intestinal obstruction due to adhesion done on 22 March 2004 during the 2nd PRC Hospital Stay could have been a complication of previous haemopertoneum after the Accident.
(f) 3rd PRC Hospital Stay
20. The Plaintiff was admitted to the PRC Hospital on 2 August 2004. He claimed he was admitted to the eye ward for visual disturbance caused by his head injury and discharged after 34 days on 4 September 2004 (“3rd PRC Hospital Stay”).
21. The Plaintiff disclosed the “病歷續頁” dated 24 April 2008 by “郭堂勝” (which document was certified as a true copy of the original record of the PRC Hospital with authentic signature by a notarial certificate dated 25 April 2008 (“Certificate”)) as follows:
“ [illegible]
患者：劉琛，男，50歲
於5年前因車禍致頭部外傷後雙眼視物不清，雙眼聂頁側視物不清。
PE: 視力 右 4.2 ±不壓
左 4.3 ±不壓
雙眼瞳孔光反射遲鈍
眼底: 雙側視乳頭界清，聂頁側色淡，視網膜未見異常，黃班反光影可見。
電生理檢查：PVEP 左AP100波13uv, LP100 103ms
右 AP100波7.9uv, LP100 95ms
電視野檢查：視野聂頁側偏盲
診斷： 1、雙眼軸性視神經萎縮
2、雙眼聂頁側偏盲
3、球後視N病變”
Even though the above “病歷續頁” dated 25 April 2008 stated that the Plaintiff’s “雙眼瞳孔光反射遲鈍”, the physical examination finding in another “病歷續頁” by “胡琦” 3 days earlier, ie on 22 April 2008, was “雙瞳孔等大等圓，光感好” (see paragraph 57 below). There is no explanation for such discrepancy in physical examination findings within 3 days, which undermined the reliability of the above “病歷續頁”.
22. Nevertheless, I accept on balance the Plaintiff did suffer some visual disturbance as a result of the Accident. First, there was no evidence that the Plaintiff suffered any visual disturbance prior to the Accident, but I agree this factor alone would not be sufficient. Secondly, the Plaintiff raised complaint of visual disturbance with PYNEH’s AED as early as on 16 December 2003. He also complained of blurring of vision to Drs Woo and Chan in July 2007. Thirdly, although the Woo Report noted that segmental examination showed normal fundoscopy, visual fields and extraocular eye movements, Dr Chan’s examination revealed reduced visual acuity of 20/40 on the Snellen chart for both eyes and constricted peripheral vision for the left eye.
23. But as I have found in paragraph 17 above, the Plaintiff’s visual disturbance must have been mild. I bear in mind that Dr Chan’s physical examination findings (see above paragraph) were dependent on subjective performance/report by the Plaintiff, but as explained below I have reservations over the Plaintiff’s complaints of his impairments and disabilities to Drs Woo, Chan and Lam. In any event, no or no sufficient evidence (eg medical report/record from the PRC Hospital) was placed before me to justify why such visual disturbance would have required extended inpatient medical treatment by 34 days of hospitalisation.
24. It is significant to note that (a) the《關於患者劉琛在我院住院治療期間醫藥費結算情況的說明》by the PRC Hospital dated 26 December 2005 (“Charges Certificate”) failed to describe the purpose and/or duration of the 3rd PRC Hospital Stay, (b) there was no receipt or itemised breakdown of the charges for the 3rd PRC Hospital Stay similar to the receipt and/or breakdown for the 1st PRC Hospital Stay that clearly elucidated the purpose and nature of the inpatient treatment received by the Plaintiff, (c) the “病歷續頁” dated 24 April 2008 by “郭堂勝” did not mention any inpatient treatment received by the Plaintiff or any future need for further medical treatment for the visual disturbance, and (d) the Plaintiff’s own evidence failed to clarify even the broad nature of the ophthalmic treatment he received during the 3rdPRC Hospital Stay.
25. There was also paucity of evidence as to whether the Plaintiff’s mild visual disturbance had reached maximum medical improvement and/or whether any medical treatment beyond a conservative approach was required for such condition. In this respect, I also refer to the discussion in paragraphs 141-143 below which highlight the unreliability of the Plaintiff’s assertions in relation to the 3rd PRC Hospital Stay in light of the alleged outpatient treatment attendances at the PRC Hospital on 16-17 August 2004.
26. I find on balance that the Plaintiff failed to show the 3rd PRC Hospital Stay was therapeutically reasonable and/or necessary for medical treatment of his mild visual disturbance.
(g) Change of jobs
27. The Plaintiff gave evidence that in October 2004 he started to work as Deputy Manager（副主任）of Huangshi City Economic Office (中共黃石市經濟委員會, “Economic Office”) on a half-day basis. According to the Woo Report, the Plaintiff told Dr Woo there was no change since the hierarchical rankings of Deputy Chief and Deputy Manager were the same. The Plaintiff denied this when he gave evidence and claimed he was in fact demoted from Deputy Chief (said to be equivalent in ranking to a vice mayor (副市長)) of the Bureau to Deputy Manager (said to be equivalent in ranking to a deputy head of department) of the Economic Office being one of many branches of the Bureau. The Plaintiff further claimed that his work in external communications and foreign investment as Deputy Chief of the Bureau was more important than his work in internal collaboration and public promotion as Deputy Manager of the Economic Office.
28. But on the basis of the findings below, I am not persuaded that (a) the Economic Office was merely one of many branches of the Bureau and/or (b) the position of Deputy Manager was necessarily less important than that of Deputy Chief such that the Plaintiff’s post-Accident change of job was a demotion. Indeed, other than the Plaintiff’s assertion, there were no direct documentary evidence in support of such contention.
29. According to the《關於成立中國共產黨黃石市對外貿易經濟合作局黨組及領導班子調整配備的通知》dated 25 October 2001 (“2001 Notice”), the Bureau was set up in the following context:
“根據中共湖北省委、湖北省人民政府《關於印發〈黃石市機構改革方案〉的通知》(鄂文[2001]51號) 精神，市對外經濟貿易委員會更名為市對外貿易經濟合作局，市口岸辦并入市對外貿易經濟合作局，作為內設機構。市委同意，成立 “中國共產黨黃石市對外貿易經濟合作局黨組”，同時撤銷 “中國共產黨黃石市對外經濟貿易委員會黨組” 和 “中國共產黨黃石市口岸管理委員會辦公室黨組”。…… ”
and the Plaintiff and another person were appointed as Deputy Chiefs of the Bureau.
30. According to the《關於成立中共黃石市經濟委員會(市中小企業發展局)黨組及領導班子配備的通知》dated 20 October 2004 (“2004 Notice”), it was said inter alia as follows:
“根據《中共湖北省委、湖北省人民政府關於印發〈黃石市政府機構改革方案〉的通知》(鄂文[2004]46號) 精神，組建市經濟委員會，挂市中小企業發展局牌子，撤銷市經濟貿易委員會、黃金工業管理辦公室、鄉鎮企業局。市委同意，成立 “中共黃石市經濟委員會(市中小企業發展局)黨組”。撤銷 “中共黃石市經濟貿易委員會黨組”。…… ”
and the Plaintiff was appointed as “市經濟委員會(市中小企業發展局)副主任(副局長)、黨組成員” as from 6 October 2004.
31. The 2001 and 2004 Notices clearly showed that (a) the Economic Office originated from the “市經濟委員會” established in 2004 and not from the “市對外經濟貿易委員會” which changed its name to the “市對外貿易經濟合作局” (ie the Bureau) in 2001, (b) the “市經濟委員會” established in 2004 targeted local small and medium enterprises (ie “挂市中小企業發展局牌子”) and replaced a number of local institutions (eg “市經濟貿易委員會”, “黃金工業管理辦公室” and “鄉鎮企業局”), but the Bureau established before 2001 under a different name was focused on foreign-related matters and hence “市口岸辦” (ie customs) was re-organised to become part of Bureau. These matters contradicted the Plaintiff’s assertion that the Economic Office was merely one of many branches of the Bureau. Rather they appeared to be different institutions that performed different external-oriented and internal-oriented functions.
32. Likewise, the 2004 Notice expressly provided that the Plaintiff’s position as Deputy Manager (副主任) of the Economic Office was equivalent to “副局長” (Deputy Chief). On balance, I find that the Plaintiff actually told Dr Woo the truth when he said the hierarchical rankings of his pre- and post-Accident positions as Deputy Chief of the Bureau and Deputy Manager of the Economic Office were the same.
33. I am also mindful that the Plaintiff exaggerated his case on the core matters, so taking all matters into consideration, on balance I am unable to accept the Plaintiff’s contention that it was a demotion for him to take up the position of Deputy Manager of the Economic Office.
34. Mr Cheuk referred to the《關於劉琛因交通意外所引致經濟損失情況證明》dated 28 October 2004 issued by the Bureau (“Loss Ceritificate”), which stated inter alia as follows : “…… 意外發生後，…… 未能考慮其職務升遷，同時，免去其外經貿局副局長，改任黃石市經委副主任 ……”. Whilst a plain reading of such certificate might indicate that the Plaintiff would not be considered for promotion (“未能考慮其職務升遷”), the contents of such certificate did not raise any suggestion that his transfer to become Deputy Manager of the Economic Office was therefore a demotion. I shall return to the Loss Certificate below.
(h) 4th PRC Hospital Stay
35. The Plaintiff was admitted to the PRC Hospital on 16 July 2005. He claimed he was admitted to the urosurgery ward for sexual dysfunction caused by loss of spleen and depression as result of scars on his chest, and further claimed he was hospitalised for 36 days until his discharge on 20 August 2005 (“4thPRC Hospital Stay”).
36. According to the undated “病歷續頁” by “泌尿科: 葉石龍” (as notarised by the Certificate), it was stated inter alia as follows:
“劉琛，男，50歲
因外傷（車禍）脾切除，肝修復術的4年4（個）月
訴頭昏、全身乏力，蔭莖勃起不堅，性交時間短、約1-2分鐘。
檢查：一般情況尚可 ……[illegible] ……亦無壓痛，蔭毛分布均勻，蔭莖大小適中，雙側睪丸正常大小，無結節。
處理： 1) 三腎丸 6.0 x 2盒
2) 强腎片 2盒
3) 化學[illegible]體試驗
診斷： 脾切除術後
肝修補術後
性功能下降”
37. The Plaintiff first complained of sexual dysfunction in the Statement of Damages filed on 14 November 2006. No earlier medical report or record was placed before the court. In July 2007 the Plaintiff complained to Drs Woo, Chan and Lam of loss of libido that affected his sexual life, and further told Drs Woo and Chan there was no sexual activity with the Wife after the Accident. It was only in the Revised Statement of Damages filed on 5 October 2009 that the Plaintiff mentioned the 4thPRC Hospital Stay was for sexual dysfunction. In my view, the above chronology showed there was no close temporal relationship between the Accident on one hand and the complaint of sexual dysfunction and/or the 4th PRC Hospital Stay in July/August 2005 on the other.
38. As regards the scars, I have seen a photograph of the healed 25cm (the Chan Report) or 22cm (the Lam Report) mid-line laparotomy scar on the Plaintiff’s torso, which was obvious but not ugly or repulsive. As regards the healed 2cm chest scars caused by insertion of the incoastal chest drains, Dr Lam opined (and I accept) they did not pose any external deformity. According to the Chan Report, there were healed 1.5cm scars at the left subchondral region and a 1.6cm scar on the right abdomen. Again, I am not persuaded they would be so disfiguring as to be repulsive.
39. I regard the healed 1.2cm laceration scar over the medial malleolus of the left ankle insignificant. The Chan Report noted the Plaintiff had a 2.5cm scar on the scalp at right vertex region, a 0.5cm scar over medial side of right eyelid, and a 3.2cm scar over right maxillary region of the face (but see the Woo Report that referred to 3cm scar over malar area of the left face, and the Lam Report that referred to 2cm scar at right occiput and 3cm scar with mild tenderness at the left cheek). Apart from such minor left-right discrepancy, there was no dispute the Plaintiff had a 3cm scar on the cheek. I have seen the Plaintiff in court. Even bearing in mind Dr Woo’s view that the facial scar accounted for 1% whole person impairment, I do not find the abovementioned facial scars particularly noticeable or that they adversely affect the Plaintiff’s general cosmetic appearance. I further note there was no report by the Wife (who was present during the expert medical interviews) to Drs Woo, Chan and Lam and no witness evidence forthcoming from her to the effect that she found the Plaintiff’s scars repulsive.
40. On balance, I am also not satisfied that the Plaintiff suffered from depression because he was worried about marriage breakdown as a result of diminished sexual relationship with the Wife. Support for this view could be found in the covert surveillance recording of the Plaintiff on 3 July 2007 (ie over 3½ years after the Accident) commissioned by the 2nd Defendant (“Recording”).
41. The Recording and the corresponding report by the investigator showed that shortly after 10:00am on 3 July 2007 the Plaintiff and 2 women entered the building where Dr Lam’s clinic was situated. The Lam Report noted that the Plaintiff, the Wife and their daughter-in-law turned up for the interview. The Recording revealed that the Plaintiff chatted and strolled with the Wife on his arm in a relaxed and congenial manner without any sign of estrangement or strain. On balance, I find the Plaintiff’s allegations of depression over his scars, sexual dysfunction and worry about marriage breakdown to be unreliable exaggerations. This is also borne out by the Woo and Chan Reports which noted that the Plaintiff “kept his head bowed most of the time …… [and] wore a sad complexion” (the Woo Report) and that he wore a “depressive [face]” (the Chan Report) during the interviews on 3 and 4 July 2007. Yet the Recording made immediately before and after Dr Woo’s interview of the Plaintiff showed that he was alert and relaxed, and he chatted easily with the Wife and their daughter-in-law.
42. More importantly, Dr Chan opined (and I accept) that the splenectomy would not have caused loss of sexual desire or impotence. After all, the function of the spleen was to cleanse the blood of bacteria and other foreign matters. In my view, Dr Chan’s opinion clearly refuted the Plaintiff’s claim that his alleged sexual dysfunction was caused by loss of his spleen. It is also significant that the undated “病歷續頁” by “泌尿科: 葉石龍” merely recorded complaint of sexual dysfunction occurring after the splenectomy and plication of the liver laceration, but did not identify any anatomical deformity or medical causal connection between the alleged sexual dysfunction and loss of spleen. On balance, I am not satisfied the Plaintiff’s sexual dysfunction was caused by the Accident.
43. Even if the Plaintiff’s sexual dysfunction were caused by the Accident (which I disagree), he had not been able to demonstrate on balance why such condition required 36 days of hospitalisation under the 4th PRC Hospital Stay. No medical report from the PRC Hospital explaining the need for extended inpatient treatment of such condition was placed before me. It is significant to note that (a) the Charges Certificate failed to describe the purpose and/or duration of the 4th PRC Hospital Stay, (b) there was no receipt or itemised breakdown of the charges for the 4th PRC Hospital Stay similar to the receipt and/or breakdown for the 1st PRC Hospital Stay that clearly elucidated the purpose and nature of the inpatient treatment received by the Plaintiff, (c) the undated “病歷續頁” by “泌尿科: 葉石龍” did not mention any inpatient treatment received by the Plaintiff for sexual dysfunction or explain why “化學[illegible]體試驗” could not be carried out on outpatient basis or why it would have required inpatient treatment of over a month, and (d) the Plaintiff’s own evidence failed to clarify even the broad nature of the inpatient treatment he received during the 4th PRC Hospital Stay. I find on balance that the Plaintiff failed to show that the 4th PRC Hospital Stay was therapeutically reasonable and/or necessary for treating his claimed sexual dysfunction.
(i) 5th PRC Hospital Stay
44. The Plaintiff was next admitted to the PRC Hospital on 25 October 2005. He claimed he was admitted to the ear, nose and throat (“ENT”) ward for hearing disturbance or bilateral sensori-neural deafness, and further claimed that he was hospitalised for 34 days until his discharge on 29 November 2005 (“5thPRC Hospital Stay”).
45. According to the “病歷續頁” dated 24 April 2008 by “耳鼻喉科: 劉維榮[及]萬浪” (as notarised by the Certificate), it was stated inter alia as follows:
“ 劉琛，男，50歲
患者因車禍致頭部外傷，後感雙耳鳴，聽力下降5年，聽力下降以右側為甚，有時伴頭昏。
PE: 雙側外耳道見少許耳液出，鼓膜混濁，標記不清。
電測[illegible] + 聲阻抗擊：
雙側感音神經性耳聾（右側重度，左側輕度）。
診斷： 1. 右側感音神經性耳聾（重度）
2. 左側感音神經性耳聾（輕度）
處理：建議擴管營養神經治療。”
46. On balance, I accept the Plaintiff suffered from some mild hearing disturbance as a result of the Accident. He raised this complaint with PYNEH’s AED as early as on 16 December 2003, and also reported decreased hearing in the right ear to Drs Woo and Chan in July 2007. Such complaints were not inconsistent with the findings in the “病歷續頁” dated 24 April 2008 by “耳鼻喉科: 劉維榮[及]萬浪” which stated inter alia that the hearing loss on the right side was more severe than that on the left. However, I do not accept that the Plaintiff’s right ear hearing disturbance sometimes required use of hearing aid (as he informed Dr Lam). The Plaintiff did not give evidence on or produce invoice/receipt for any purchase or use of hearing aid, and he did not need to use any hearing aid at the interviews by Drs Woo, Chan and Lam or at the assessment hearing.
47. I note the above “病歷續頁” referred to comparative hearing loss between the right ear and left ear in general layman terms of “重度” and “輕度”, but there was no medical scientific criteria as to the extent of hearing disturbance as compared with normal hearing capability. I find on balance that overall the Plaintiff only suffered mild hearing disturbance. I further note that the Plaintiff had no difficulty in picking up voice sounds and in hearing questions put to him during the assessment hearing, and none of Drs Woo, Chan and Lam reported any significant hearing difficulty as part of their medical examination findings.
48. More importantly, the Plaintiff failed to show on balance that his mild hearing disturbance required hospitalisation of 34 days under the 5th PRC Hospital Stay. No medical report from the PRC Hospital explaining the need for extended inpatient treatment of such condition was placed before me. It is significant to note that (a) the Charges Certificate failed to describe the purpose and/or duration of the 5th PRC Hospital Stay, (b) there was no receipt or itemised breakdown of the charges for the 5th PRC Hospital Stay similar to the receipt and/or breakdown for the 1st PRC Hospital Stay that clearly elucidated the purpose and nature of the inpatient treatment received by the Plaintiff, (c) the “病歷續頁” dated 24 April 2008 by “耳鼻喉科: 劉維榮[及]萬浪” did not mention any inpatient treatment received by the Plaintiff for hearing disturbance, and the treatment recommended therein did not suggest that hospitalisation was required, and (d) the Plaintiff’s own evidence failed to clarify even the broad nature of the inpatient treatment he received during the 5th PRC Hospital Stay. I find on balance that the Plaintiff failed to show that the 5th PRC Hospital Stay was therapeutically reasonable and/or necessary for treating his mild hearing disturbance.
(j) Outpatient treatment
49. The Plaintiff told Dr Woo he attended follow up visits at the neurosurgery, medicine, urology, ENT and gastroenterology clinics of the PRC Hospital for follow up on his injuries and related problems. As at the date of the Lam Report (ie 16 August 2007), the Plaintiff’s last outpatient visit to the PRC Hospital was in February 2007, “and the next appointment would be arranged when necessary”. I will discuss more about outpatient treatment below.
IV. EXPERT MEDICAL EVIDENCE
50. Drs Woo, Chan and Lam were single joint medical experts jointly appointed by the parties. As evident from the Woo, Chan and Lam Reports, their expert medical opinion was formulated upon consideration and analysis of the medical history and then current symptoms and complaints given by the Plaintiff and the Wife, review of the available medical records/reports, analysis of the physical/neurological examinations of the Plaintiff, and review of the radiological and MRI findings. On balance, I accept and rely on their opinion.
(a) Head and neurology
51. The Plaintiff complained of headache to Drs Woo, Chan and Lam. He described the headache to Dr Woo as gripping pain over the right side of his head that occurred almost daily lasting between 10 minutes and an hour on each occasion and that might disturb his sleep, and to Dr Chan as headache (grade 7/10) lasting for 30 minutes every day in the morning and evening. He told Drs Woo and Chan that such headache was aggravated at times of weather change. He further informed Dr Woo it was worse when he concentrated mentally, and it might be associated with sweating and nausea at times but without vomiting. According to the Woo Report, the Plaintiff took analgesic medications once or twice a week for relief when the headache was severe.
52. The Plaintiff told Dr Woo he had dizziness (ie a constant sense of imbalance). The Wife also told Drs Woo and Chan that the Plaintiff had 7-8 bouts of syncopal attacks during which he had brief loss of consciousness. The Woo Report noted that the Wife said such episodes were associated with pallor and sweating when standing. The Chan Report noted the Wife said (a) there was up-rolling of eyeballs, cyanosis, tonic posture and fecal incontinence during such event and the Plaintiff would became drowsy afterwards, (b) these features appeared to be suggestive of epilepsy, and (c) such episodes happened once every 2-3 months with the last episode occurring in December 2006.
53. According to the Woo and Lam Reports, the Plaintiff claimed his memory was impaired, eg he would forget what was just said or discussed so he had to write things down to remind himself, or he would forget to bring his belongings such as his wallet or keys but he had not lost any personal item of value.
54. The Plaintiff told Drs Woo and Lam he had insomnia (ie sleeping for only 2-3 hours each night (the Woo Report) or having difficulty in falling asleep but waking up early (the Lam Report)) and became irritable and short-tempered. He told Dr Woo he often banged on the table or the wall, but there was no physical violence towards the family, and he often had nightmares and unpleasant dreams about murder and death. According to the Woo Report, the Plaintiff claimed he was often afraid of crossing the road especially when traffic was heavy (and such fear might be associated with palpitation), and he would feel more confident when accompanied.
55. According to the Chan Report, the Plaintiff claimed he suffered about 5-8 episodes of poorly localised right subchondral pain (grade 4/10) each month lasting 5-10 minutes each time, and such pain would be made worse by low mood and long working hours.
56. During Dr Woo’s neurological examination, the Plaintiff demonstrated mild impairment in tests of orientation and recall, but other tests of cognitive functions (including calculation, concentration, registration, language, general knowledge and abstract thinking) were normal. His speech was relevant and coherent, and his responses were appropriate and of average speed. There was no nystagmus even on rapid changes in bodily positions. The Woo and Lam Reports noted that the Plaintiff told the medical experts he suffered from occasional or intermittent twitches of the left facial muscles around the scar. According to Dr Lam’s examination, tenderness was claimed at forehead and right side, but there was no apparent central neurological deficit or cranial nerve palsy.
57. In giving his opinion, Dr Woo noted the Plaintiff was comatose after the Accident and the duration of unconsciousness was unduly prolonged by his systemic injuries and their treatment. There was radiological evidence of subarachnoid haemorrhage but no parenchymal brain damage. Dr Woo opined that as a result of the head injury, the Plaintiff had residual headache, non-specific dizziness, irritability and subjectively-impaired memory consistent with a diagnosis of post-concussional syndrome, but there was no cognitive, vestibular or physical deficit. Such view is not inconsistent with the physical examination findings in the “病歷續頁” dated 22 April 2008 by “胡琦” (as notarised by the Certificate), it was stated as follows:
“劉琛，男，50歲
因車禍致頭部、腹部及身體多處外傷5年，現仍訴頭昏、記憶力下降、聽力下降、睡眠差。
查體：神清、精神欠佳，頭顱外形正常、雙瞳孔等大等圓、光感好、頸軟、四肢肌力正常、生理反射存在、病理証(一)。
診斷: 腦外傷後遺症
多處肋骨骨折 脾切除術後
處理：繼續口服神經營養藥物治療。”
58. Dr Woo opined (and I accept) that by the time of the Woo Report, further significant improvement of the Plaintiff’s neurological functions was not expected, and the post-concussional syndrome accounted for 3% whole person impairment. He further opined (and I also accept) that no further pharmacological or surgical treatment and no regular neurological/neurosurgical evaluation were required. In the circumstances, I am not satisfied that the recommended treatment of “繼續口服神經營養藥物治療” in the “病歷續頁” dated 22 April 2008 by “胡琦” was therapeutically necessary. However, I am persuaded that some medication for symptomatic relief of the mild symptoms of the post-concussional syndrome might be required.
59. According to Dr Woo, PYNEH’s medical records made no reference to any injury to the left upper or lower extremities during the acute phase of the trauma. The pattern of the Plaintiff’s weakness in his left upper and lower extremities (see sections (b) and (c) below) was non-physiological, and the absence of any change in muscle bulk, muscle tone or deep tendon reflex militated against any organic neurological lesion. There was no radiological evidence of any parenchymal brain damage that could account for his motor weakness. The Plaintiff also demonstrated the non-organic motor sign of give-way weakness, which showed that his efforts were sub-maximal. Indeed, the physical examination findings in “病歷續頁” dated 22 April 2008 by “胡琦” confirmed that the Plaintiff’s “四肢肌力正常、生理反射存在”. In my view, the Plaintiff’s under-performance in physical examination and his exaggeration of disabilities undermined the reliability of his evidence on the extent of his residual impairments and disabilities.
(b) Upper limbs
60. According to the Woo and Lam Reports, the Plaintiff complained of weakness in his left upper limb or left hand (ie unable to lift weights in excess of 2-3 catties). According to the Lam Report, he also complained of left shoulder pain made worse with humid weather.
61. According to Dr Woo’s medical examination, all deep tendon reflexes were present and symmetrical. There were no primitive reflexes or paratonia frontal lobe dysfunction. The muscle tone of the upper extremities was normal and there was no muscle wasting. On testing volition power, even though the Plaintiff alleged he was exerting fully, he demonstrated a moderate degree of diffuse give-way weakness in all the muscles of the upper left extremity from the periscapular muscles proximally to the intrinsic hand muscles distally, and with an equal involvement of the agonist and antagonist muscles at each joint. Power was normal and sustained on the right. Dr Woo observed that the Plaintiff could use his left hand to handle his mobile phone in a dexterous fashion during the interview, which was inconsistent with the weakness in the left hand demonstrated on examination. Dr Woo opined (and I agree) that such discrepancy and inconsistency defied neurophysiological principles and lend support to his suspicion (which I accept has been shown on balance) that the deficits were exaggerated for the purpose of the examination and they cast doubt on the genuineness and integrity of the Plaintiff’s complaints.
62. Likewise, Dr Lam reported that during his examination of the Plaintiff’s upper limbs, there was no external deformity or muscle wasting/spasm. Wrist and finger movements on both hands were normal. As Dr Woo observed, Dr Lam also noted there was no mention of upper limbs problem in the PYNEH and PRC Hospital records. The Plaintiff complained to Dr Lam he had left shoulder pain and left upper limb weakness such that he could not lift over 2-3 catties in weight, and he demonstrated limitation in shoulder motion bilaterally without impingement (but it turned out that he was “[not] exerting power on left upper limb, with sudden let go upon exertion”). Dr Lam opined (and I accept) that the shoulder problem was constrictive capsulitis (frozen shoulder) due to chronic inflammation around the shoulder joint, which was rather common in people around 50 years old. Dr Lam could not find any orthopaedic cause for the limited degree of left upper limb weakness. On balance, I accept that such condition was not caused by the Accident.
63. It was evident from the Recording that on the very same day that the Plaintiff was examined by Dr Lam he was able to move his arms freely and naturally. He could lift his arms above shoulder level to tidy his hair. He could use one arm to hold up his shoulder bag and the other hand to search its contents. He could light cigarettes, smoke and flick ash over rubbish bins in a smooth manner. Further, as pointed out above, the physical examination findings in the “病歷續頁” dated 22 April 2008 by “胡琦” confirmed that the Plaintiff’s “四肢肌力正常、生理反射存在”. In my view, these matters went to support the conclusion that the Plaintiff’s upper limbs condition was exaggerated and in any event not caused by the Accident.
(c) Hip and lower limbs
64. The Plaintiff complained of pain around the left hip (the Woo Report) or heavy and distending pelvic pain (grade 7/10) lasting for 5-20 minutes every day after meals and at night (the Chan Report) or left hip and thigh pain (the Lam Report). The Plaintiff also complained of difficulty in squatting over toilet and getting up again (the Woo Report) and worsening of pain with squatting (the Lam Report).
65. Dr Woo in his examination found that muscle tone was normal for the lower extremities, and there was no muscle wasting. Straight leg raising test was 20˚ in the supine position but 90˚ in the sitting position bilaterally. On testing volitional power, the Plaintiff demonstrated a severe degree of diffuse give-way weakness in all the muscles of both lower extremities (worse on the left) from the hip muscles proximally to the ankle muscles distally, and with an equal involvement of the agonist and antagonist muscles at each joint. Dr Woo opined that the severe weakness in the legs the Plaintiff demonstrated on the examination couch was incompatible with his ability to stand and walk unaided. Hoover’s sign was positive on hip flexion bilaterally which indicated under-performance. The Plaintiff gave the impression he had to strain on exertion, but his effort was markedly sub-maximal. He claimed that the pain in the left hip region limited his exertion and he had weakness in both legs, but in fact all deep tendon reflexes were normally present and symmetrical and plantar responses were flexor bilaterally. During physical examination, the Plaintiff appeared he could walk unaided though unsteadily, but in fact he could stand stably with eyes closed. Dr Woo opined that whilst pain in the hip might limit exertion in the proximal muscles of the lower extremity, it could not account for weakness in the distal muscles around the ankle.
66. Dr Woo was of the view (and I accept) that the above discrepancies and inconsistencies defied neurophysiological principles and raised the suspicion (which I accept has been shown) that the deficits were exaggerated for the purpose of the examination. I also agree that they undermine the genuineness and integrity of the Plaintiff’s complaints.
67. The Plaintiff complained to Dr Lam about left hip and thigh pain that affected ambulation. There was limited hip flexion bilaterally, but x-ray of the pelvis showed no bony lesion. Dr Lam could not find a good explanation for the hip complaints. For the lower limbs, the Plaintiff demonstrated to Dr Lam that he walked with a limping gait and could not squat fully. During physical examination the Plaintiff could stand single-legged on the right side and was less steady on the left. But Dr Lam noted there was no length discrepancy and no obvious muscle wasting or spasticity, which suggested that the Plaintiff could use both lower limbs effectively. Dr Lam further opined (and I accept) that the claimed degree of affected ambulation was out of proportion to a sprained left knee with meniscus tear (see paragraph 69 below).
68. In my view, the Plaintiff’s hips and lower limbs condition was not caused by the Accident, but was exaggerated for compensation purpose and hence unreliable.
(d) Knee
69. The medical experts noted there was limited knee flexion on both sides (more on left). For the left knee, the Plaintiff complained to Dr Lam of diffuse tenderness (maximal at lateral side), but the coloration, temperature and moisture were normal and there was no external deformity or swelling, no collateral ligament or anterior-posterior laxity, and no clinical sign of meniscal tear. X-ray of the left knee showed no bony lesion, but MRI scan revealed that whilst major ligaments were intact there was suspicion of small radial tear at body of lateral meniscus. Dr Lam believed (and I accept) the Plaintiff had a sprained left knee with tear at body of lateral meniscus (which could explain the residual knee pain at the lateral side of left knee).
70. Both Drs Woo and Lam noted that the Plaintiff had a right knee PCL injury. The MRI scan of right knee by the PRC Hospital on 6 November 2003 showed swelling of the ACL. Dr Lam believed (and I accept) that the Plaintiff had a sprained right knee with no residual structural damage as he did not have any right knee complaint when examined by Dr Lam.
(e) Chest
71. The Plaintiff told Drs Woo, Chan and Lam he had anterior and both sides chest pain, which was described in the Chan Report as pain on both sides of sternum and on the lateral chest wall (grade 4/10) every day lasting 5-10 minutes and such chest pain would be worse by lying on the sides, and in the Lam Report as diffuse tenderness at anterior and both sides chest (more on left) and such chest pain would be worse with humid weather.
72. According to the “病情介紹” dated 23 April 2008 by “胸外:孫戰文” (as notarised by the Certificate), it was stated inter alia as follows:
“ 劉琛，男，50歲
患者因車禍致頭、胸、腹、全身多處外傷5年現訴胸悶、胸痛、變天時症狀明顯。
體查：胸部無擠壓痛、無明顯壓痛、兩肺呼吸音尚清晰，無干濕性濁音。
覆查胸片：示右8、9肋、左7、8、9肋畸形癒合，餘未見異常。
診斷： 右8、9肋、左7、8、9肋畸形癒合
‚胸膜粘連
處理： 對症治療。”
73. According to the Lam Report, there was no external deformity, and chest x-ray showed old fractures of right 7th-10th and left 7th-9th ribs. Dr Lam found clear airway with expiration 86cm and inspiration 90cm. Dr Chan also confirmed that chest expansion was equal on both sides and that breath sounds were normal with no abnormal added respiratory sound. There was no finding by Drs Woo, Chan and Lam (whether from physical or radiological examination) of any pleural adhesion or displaced union of the fractures as suggested in the “病情介紹” dated 23 April 2008 by “胸外:孫戰文”. On balance I do not accept such diagnoses especially in light of the physical examination findings of “胸部無擠壓痛、無明顯壓痛、兩肺呼吸音尚清晰，無干濕性濁音”, which were consistent with those by Drs Chan and Lam.
74. Dr Lam opined (and I accept) that the findings were consistent with a chest contusion in a traffic accident. For fracture of ribs, the treatment was basically conservative, ie by resting and analgesics, and for penumothorax or haemothorax chest drain might be required. Dr Lam was of the view that the treatment at PYNEH by endotracheal intubation and chest drain on both sides was appropriate.
75. Dr Lam opined (and I accept) that rib fractures usually could heal in a few months’ time with good functional recovery for most patients, and residual pain after rib fracture was usually of a minor nature. Dr Lam further opined (and I also accept) that the exact number of ribs involved was not very important insofar as treatment or prognosis was concerned since they all healed simultaneously. He believed the Plaintiff had some residual pain due to the multiple rib fractures, but the intensity of pain should be mild and not disabling. Dr Lam further opined that the Plaintiff might have on and off residual aching upon exertion, but the pain should be mild and deterioration after the rib fractures had healed was not expected. I am not satisfied that further treatment was required for the Plaintiff’s chest condition, and indeed, the Plaintiff was unable to say what specific treatment that would be required. The “病情介紹” dated 23 April 2008 by “胸外:孫戰文” merely stated “對症治療”, which did not add anything further to the Plaintiff’s case.
(f) Abdomen and bowel habit
76. During Dr Chan’s physical examination, the Plaintiff’s abdomen was soft and no local tenderness was elicited. There was no palpable organomegaly, and there was active bowel sound. According to the Lam Report, the Plaintiff claimed there was tenderness all over the abdomen (maximal at left upper quadrant).
77. In the Chan Report, the Plaintiff complained of frequent bowel opening of 5-6 times per day after the Accident whilst he only opened his bowel once daily before the Accident. In the Lam Report, the Plaintiff also complained of diarrhea, but there was still bowel control.
78. According to the “病歷續頁” dated 10 April 2008 by “外科: 夏國兵” (as notarised by the Certificate), it is stated inter alia as follows:
“ 劉琛，男，50歲。
因車禍致頭部、腹部外傷，術後5年，腹脹、腹瀉、乏力、不適5年。
患者2003年9月份，因車禍致顱腦外傷，腹部閉合性損傷，肝挫傷、脾挫裂傷，及腹腔廣泛挫傷，(進)行脾切徐術，術後患者反覆腹脹、長期腹瀉不適、乏力，經對症處理，病情方稍有緩解，5年來，反覆發作，並進行性加重。”
79. Dr Chan noted that the Plaintiff did not have any history of overwhelming infection after the Accident. His blood test for complete blood picture was normal. The normal liver function test confirmed that the liver laceration did not pose a permanent liver impairment. A normal spleen cleansed the blood of bacteria and other foreign matter, and there might be slight increase in systemic inflection by certain encapsulated bacteria such as pneumococcus following splenectomy that removed a quarter of the total lymphoid tissue and the major mass of macrophages. But such infection occurred in fewer than 2% of patients and was confined to the first 2 years after splenectomy. Here the Plaintiff received pneumococcus vaccination after the splenectomy more than 3 years prior to the Chan Report with no record of occurrence of overwhelming infection, so Dr Chan opined (and I accept) that the Plaintiff did not require further medical treatment for the post-splenectomy state. Dr Chan further opined (and I also accept) that the splenectomy of itself would not have caused change in bowel habit. In his view, there was no permanent impairment of the whole person due to splenectomy.
80. The “病歷續頁” dated 10 April 2008 by “外科: 夏國兵” failed to state the medical causal connection between the condition “反覆腹脹、長期腹瀉不適、乏力” as reported by the Plaintiff and the splenectomy and the laceration injury to the liver. In my view, the Plaintiff failed to sufficiently show on balance that medical treatment was/is therapeutically necessary on the basis of the broad assertion of “對症處理” in the “病歷續頁” dated 10 April 2008 by “外科: 夏國兵” in face of Dr Chan’s opinion which was premised on the function of the spleen, the nature of the laparotomy procedures, the normal complete blood picture, and the normal liver function test results.
(g) Neck and back
81. In the Lam Report, for the neck and back there was no external deformity or loss of cervical lordosis or paraspinal muscle spasm. Neck movement was fair. The Plaintiff complained of tenderness at lower midline and left side of lower cervical spine. X-ray of cervical spine showed cervical spondylosis with degenerative changes, and marginal osteophytosis along lower cervical spine and narrowing of C5/6 disc space. Dr Woo also noted that the Plaintiff’s neck was supple with no paravertebral muscle spasm though he complained of pain on anterior flexion. Further, the “病歷續頁” dated 22 April 2008 by “胡琦” noted “頸軟”.
82. According to the Lam Report, back movement was fair, but the Plaintiff complained of tenderness at midline from thoracic to sacrum that was maximal at L5/S1. He also complained of back pain on vertex pressure, shoulder elevation, pelvis rotation and skin pinching. X-ray of the thoracic lumbar spine demonstrated mild lumbar lordosis with marginal lipping seen along the lumbar spine.
83. In short, the Plaintiff complained of tenderness at lower midline and left side of lower cervical spine and at midline from thoracic to sacrum (maximal at L5/S1) and of limited neck and back movements in all planes. Yet the Plaintiff was not documented to have neck or back problems in the PYNEH and PRC Hospital records. Given the absence of loss of cervical and lumbar lordosis and of paraspinal muscle spasm which did not support any allegation of significant spinal problem, and further given the presence of cervical spondylosis with narrowing of C5/6 disc space as well as mild lumbar spondylosis (ie degenerative changes due to aging), Dr Lam believed (and I accept) the Plaintiff’s neck and back pain was simply due to degeneration of the spine, which was rather common in people of the Plaintiff’s age even without history of trauma.
84. The Plaintiff complained of back pain on simulation tests such as vertex pressure, shoulder elevation, pelvis rotation and skin pinching, which in orthopaedic practice was indicative of some exaggeration or functional overlay. He showed very limited straight leg raising when the test was done in the lying posture, but no limitation when done in a sitting posture. This showed there was no genuine spinal nerve root irritation. On balance, I am satisfied that the Plaintiff exaggerated his disabilities for compensation purpose.
(h) Tolerance
85. In the Chan Report, the Plaintiff claimed he had unlimited exercise tolerance prior to the Accident, but afterwards he suffered shortness of breath at rest, decreased exercise tolerance, fatigue after climbing 10 steps upstairs or walking on level ground for 10 minutes. In the Lam Report, the Plaintiff claimed his ambulation was affected with limited sitting tolerance (10-20 minutes) and standing tolerance (10 minutes). He further claimed he did not have to use walking aid, but required nearby assistance for walking. The Plaintiff gave evidence that his walking capacity was ½ hour without rest and it was difficult for him to walk long distances, and in bad weather (eg when it was rainy, snowy or windy) he would need assistance or aid for walking.
86. As a result of the chest examination by Drs Chan and Lam which showed clear airway and equal expansion on both sides on inspiration and expiration, and of the cardiovascular system examination by Dr Chan which showed (a) no clinical evidence suggestive of heart failure with no murmur ascultated, (b) pulse rate of 76 beats per minute with regular rhythm, and (c) blood pressure of 150/78 mmHg, the Plaintiff was unable to identify any medical basis for the alleged shortness of breath at rest and alleged limitation in respect of sitting, standing and walking tolerance. Indeed, Drs Woo and Lam could not identify any neurophysiological or orthopaedic cause for the Plaintiff’s severe ambulation impairment.
87. The Plaintiff made the above complaints to Drs Chan and Lam on 3and 4 July 2007. However, the Recording on 3 July 2007 showed he walked in an easy and normal gait. At about 1:00pm, the Plaintiff, the Wife and their daughter-in-law walked along Sai Yeung Choi Street south into Fife Street and Fa Yuen Street before going into an imagining centre in Fa Yuen Street. They then had some food in an adjacent restaurant before turning back to Sai Yeung Choi Street South and Fife Street. At about 3:00pm, they boarded a taxi to go to a building in Central. 2 hours later, the Plaintiff came out of the building and walked with the Wife along Queen’s Road Central before boarding a taxi to go to a hotel in Jordan.
88. Although the Wife was sometimes on his arm, the Recording clearly showed that the Plaintiff could walk unaided on his own. He had no problem in walking up and down the kerb, crossing the road, negotiating heavy pedestrian traffic, walking on the carriageway outside a line of the parked cars, and manoeuvring around a handcart pushed by a pedestrian. He bent over a rubbish bin and got in and out of taxi smoothly. His facial expression was relaxed, and he chatted easily with no signs of discomfort or shortness of breath. I find on balance that the Plaintiff could walk independently with normal gait in a relaxed manner and could get on and off taxi quite naturally, which finding did not sit well with and in fact contradicted his complaints to Drs Chan and Lam.
(i) Sports
89. The Plaintiff claimed that the ugliness of the scars on his chest prevented him from exposing his chest in sports that he used to enjoy prior to the Accident such as swimming. Dr Lam opined (and I agree) that for a man of the Plaintiff’s years, the scars should not be regarded as so disfiguring to prevent him from swimming. Indeed, Dr Lam opined that the Plaintiff should be encouraged to participate in sports with less weight-bearing requirement, such as swimming and cycling.
V. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)
90. Mr Cheuk reminded that after the Accident the Plaintiff was classified by the Hubei Government as “permanently handicapped” pursuant to the 《同意評定(提高)傷殘等級決定書》dated 17 December 2004 from the Hubei Province Department of Civil Affairs to the Huangshi City Civil Affairs Bureau (“Handicap Certificate”) as follows:
“…… 經審查， 該同志2003年9月赴香港參加 “鄂港經濟合作洽談會”期間，於9月18日在返回賓館途中被一輛出租車撞傷。現傷殘情形為: 肝臟撕裂傷修補術用脾臟摘除術。根據《革命傷殘軍人評定傷殘等級的條件》第四條第9款之規定，經研究同意評定二等乙級傷殘，按國家機關工作人員因公致殘撫恤。請予三十日內將本決定書連同傷殘撫恤証一并送達本人，並按規定予以撫恤。……”
91. It is true that the Plaintiff suffered loss of spleen and laceration injury to the liver. However, Dr Chan opined (and I accept) that upon recovery from the splenectomy and plication of the liver laceration there was no permanent liver impairment and no impairment due to splenectomy save that the Plaintiff was at risk of developing intestinal obstruction in future. The Woo Report recorded that the Plaintiff was independent in his activities of daily living save for his claim that he needed the Wife’s assistance for washing his hair. However, he did not repeat such complaint to Drs Chan and Lam. In any event, the Recording showed he could easily use his hands to tidy his hair and he could bend over a rubbish bin easily, so there should be no difficulty in upper limb motion for shampoo and bending over for rinsing his hair. In any event, I am not persuaded that any limitation in respect of his upper/lower limbs, back and neck was caused by the Accident.
92. According to the Handicap Certificate, the spleen and liver injuries that required splenectomy and plication of the laceration attracted governmental compensation under the relevant regulations. But eligibility to governmental compensation would not diminish the above analysis as to the Plaintiff’s injuries, treatment and disabilities for the purpose of his common law claim for damages. On balance, whilst I accept the Plaintiff had mild visual and hearing disturbance, mild post-concussional syndrome, left knee sprain with tear at body of lateral meniscus causing left knee pain, mild residual pain due to rib fractures and upon exertion, and risk of developing intestinal obstruction as a result of the Accident, I am not convinced he could not play or enjoy most sports or could not engage in social activities as a result of such complaints. The aforesaid analysis showed exaggeration on the part of the Plaintiff, and I reject his contention that “[he] has lost society and human connections”.
93. The Plaintiff claimed that as a result of the Accident he was demoted to the less important rank of Deputy Manager of the Economic Office, and further complained that his career and promotion prospects had come to a halt and that his past efforts and service as a civil servant had been in vain. It was said that “[his] opportunity and prospect to become the Chief of the said Bureau or even higher rank such as the Mayor of the City or head of the Province of Hubei vanished.” He claimed that he became depressed and bad-tempered as a result, and was “extremely unsociable with his colleagues, friends and relatives”.
94. But as explained above, I do not accept the Plaintiff had been demoted. I am also not satisfied he became depressed, bad-tempered and unsociable as a result of the alleged demotion, and I find such allegation to be an unreliable exaggeration.
95. The first question here is whether the Plaintiff has shown a real and substantive chance for promotion to Chief of the Bureau or Mayor of Huangshai City or even head of Hubei Province. It is only when he has shown such real and substantive chance that one needs to go further to consider whether such chance had been adversely affected by the Accident.
96. Mr Cheuk reminded me that in the Loss Certificate it was said that: “…… 意外發生後，黃石市政府根據其身體狀況，未能考慮其職務升遷，同時，免去其外經貿局副局長，改任黃石市經委副主任 ……” On its face, the Loss Certificate suggested that the Plaintiff would not be considered for promotion, and went on to list some items of enhanced remuneration under “意外前(如職務升遷)” on the basis that “if” the Plaintiff were promoted but without specifying the relevant promoted ranking or position. More importantly, the Loss Certificate did not say whether the Plaintiff had any real and substantive chance for promotion, and if so to what possible promoted position and when such promotion would likely take place.
97. There is no evidence before me as to how civil servants in Huangshi City or Hubei Province were/are promoted through the ranks, and no evidence as to the pool of candidates to be selected for higher posts (ie the Plaintiff’s potential contestants), how such selection would be made, and why he would have been better than his potential contestants but for the Accident. There was also no evidence before me that candidates for promotion to higher ranking or position (eg Chief of the Bureau or Mayor of Huangshi City or head of Hubei Province) must be streamed from the Bureau and not from the Economic Office or any other government department or even elsewhere. Further, there was no evidence as to how many Deputy Chiefs or civil servants of like rank in Huangshi City or Hubei Province.
98. In the absence of evidence on these matters (and it was not even suggested that job exposure in his previous position as Deputy Chief of the Bureau was an essential criterion for promotion to higher positions), the Plaintiff’s bare assertion that he had lost a real and substantive chance of promotion to higher positions was speculative. Even if he had such a real and substantive chance for promotion, there was no evidence when it was likely he would have been promoted and to what ranking or position.
99. In the circumstances, although I bear in mind the Loss Certificate suggested that the Bureau would not consider the Plaintiff for promotion after the Accident, on balance he failed to establish that any chance or prospect of promotion that he had lost was a real and substantive one.
100. The Plaintiff claimed HK$700,000.00 for damages for PSLA and loss of society. The 2nd Defendant was willing to concede a sum of HK$500,000.00 for this head of claim. I have carefully considered the authorities cited by Mr Cheuk [1] and Ms Lau [2], counsel for the 2nd Defendant, but each case is different and must be determined on its own facts. In assessing PSLA, I bear in mind the above discussions as well as the discussions below on the Plaintiff’s sick leave and return to work. Whilst the Plaintiff’s initial injuries were serious, he made good recovery. I find on balance he has materially exaggerated his residual impairments and disabilities. In my view, an appropriate award for PSLA in the present case is HK$600,000.00.
VI. LOSS OF EARNINGS
(a) Pre-Accident earnings
101. According to the Bureau’s 2003 “職工工資檔案表” for the Plaintiff, he earned RMB¥1,461.00 as “財政工資” and RMB¥5,153.00 as “單位自籌工資” making a total monthly sum of RMB¥6,614.00. Whilst “財政工資” was adjusted on an annual basis (see eg RMB¥1,457.00 for year 2001 and RMB¥1,459.00 for year 2002), “單位自籌工資” was fixed from 2001 up to the time of the Accident.
(b) September 2003
102. The Accident occurred on 18 September 2003, but the Bureau still issued full pay to the Plaintiff for that month.
(c) October 2003 to March 2004
103. For 6 months from October 2003 to March 2004, the Bureau only paid RMB¥1,314.00 per month to the Plaintiff (ie “財政工資” in the monthly sum of RMB¥1,461.00 less “扣住房公積金” in the monthly sum of RMB¥147.00 under “單位自籌工資”). So the Plaintiff suffered partial loss of income in the sum of RMB¥5,300.00 (ie RMB¥6,614.00 – RMB¥1,314.00) x 6 months = RMB¥31,800.00.
(d) April 2004 to September 2004
104. Under cross-examination, the Plaintiff claimed he tried to return to work in late March or April 2004, but denied he had sufficiently recovered by that time for resumption of duty. He claimed to spend some time in the office but stayed at home most of the time because the Bureau took into account his health condition and allowed him to work leisurely for half day and to take rest for half day. He claimed to have maintained this mode of work up to the time of the assessment hearing.
105. However, the Bureau’s 2004 “職工工資檔案表” for the Plaintiff showed that he received full pay of RMB¥6,616.00 per month (ie an increase of RMB¥2.00 over the monthly pay for year 2003 since “財政工資” per month was increased from RMB¥1,461.00 to RMB¥1,463.00) from April to September 2004, hence there was no loss of income for such period. Under cross-examination, the Plaintiff disagreed with Ms Lau’s suggestion that the full pay he received for such period meant he could not have been working on half-day basis when he returned to work in late March or April 2004.
106. But in re-examination, the Plaintiff claimed he returned to full-time work with the Bureau in late March or April 2004. He claimed he had no choice because his salary would be reduced under civil service regulations if he did not work for a prescribed period each year. The Plaintiff claimed that since he already suffered loss of income for the period from October 2003 to March 2004 and thus could not afford to have his salary reduced, he went back to full-day and not half-day work in late March or April 2004 in order to earn full pay, but the Bureau took into account his health condition and did not give him much work. Even so, he claimed he remained in the office for the whole day and continued to do so for 6 months up to September 2004.
107. The Plaintiff’s explanation in the above paragraph, which was not found in his witness statement prepared only a few days before the assessment hearing and was first elicited under re-examination, did not sit well with his initial assertion under cross-examination that he returned to work in late March or April 2004 on half-day basis (see paragraphs 104 and 105 above). Further, the Plaintiff’s explanation in the above paragraph was inherently suspect even on his own case. If the Plaintiff’s return to full-day work was (as he claimed) for preventing reduction of income due to his being off work during his hospitalisation and sick leave beyond the prescribed period, I find it strange that he would “return to work” in late March or April 2004 and start to receive full pay as from 1 April 2004 when (a) he claimed to be hospitalised for 29 days under the 2nd PRC Hospital Stay from 20 March to 17 April 2004 and (b) he continued to receive full pay up to 30 September 2004 even though he claimed he was again hospitalised for 34 days under the 3rdPRC Hospital Stay from 2 August to 4 September 2004. No satisfactory explanation was forthcoming from the Plaintiff, and his explanation in the above paragraph gave the unmistakable flavour of being made up in the course of giving evidence to answer a difficult point.
108. However, since the Plaintiff conceded so in his re-examination, I find on balance that he returned to full-day work in his pre-Accident job as Deputy Chief of the Bureau from April 2004 until September 2004. This is consistent with the Plaintiff having received full pay during this period. But on balance I am not satisfied he told the truth as to why he returned to such full-day work. I find his explanations inconsistent and inherently unreliable.
109. Ms Lau submitted it was only the Plaintiff’s bare assertion that he was still unable to discharge his work duty as before by the time of late March or April 2004, and there was no corroborative evidence in support, especially as the Plaintiff failed to adduce evidence of any adverse comments by the Bureau on his work performance during the relevant period.
110. In my view, even though I have found that the Plaintiff returned to full-day work from April to September 2004, I accept on balance that the Bureau must have accommodated him by not giving him too much work. I bear in mind even though Dr Chan opined that the splenectomy itself would not have adverse effect on his job position, Dr Woo was of the view that the Plaintiff should have recovered sufficiently from the head injury by September 2004 (ie 1 year after the Accident) to be able to resume gainful employment. The fact that the Plaintiff returned to work much earlier (ie in about late March or April 2004) suggested it was probable that the Bureau would not have given him much work. In the circumstances, I find on balance that when he returned to full-day work in late March or April 2004 the Plaintiff was not discharging full duty even though he remained at the office for the whole day.
(e) October 2004 to March 2010
111. The Plaintiff claimed he suffered partial loss of earnings of RMB¥4,544.00 per month for the whole pre-trial period starting from 1 October 2004. In the Further Re-Revised Statement of Damages, the claim was put at RMB¥272,640.00 for the period of 1 October 2004 to 31 May 2009 and continuing. The 2nd Defendant disputed such claim.
112. The Plaintiff gave evidence that as from October 2004 he started working as Deputy Manager of the Economic Office on half-day basis. He told Dr Woo he had flexible working hours, usually stayed at the office for 2-3 hours in the morning, and seldom attended dinner parties or social functions. He told Dr Chan he was only able to do clerical work in the morning from 9:00am to 11:30am. He further told Drs Woo and Lam that he went to work by chauffeur-driven car.
113. Under cross-examination, the Plaintiff agreed it was his own personal decision and at his request that he worked on a half-day basis in and after October 2004. The Plaintiff tried to rely on the explanation in paragraph 106 above to justify his return to full-day work for 6 months before choosing to work on a half-day basis, but I have rejected such explanation (see paragraph 108 above). In the end, the Plaintiff claimed under re-examination that he requested to work on a half-day basis because his health condition after the Accident did not permit him to work for the whole day.
114. In my view, the question whether the Plaintiff’s request to work on a half-day basis was due to inability to manage full-day work after the Accident or whether it was a personal choice unrelated to the Accident must be considered in the context that such change to half-day work took place at the same time as his job change from Deputy Chief of the Bureau to Deputy Manager of the Economic Office.
115. In such context, quite apart from the Plaintiff’s choice to work on a half-day basis, the phrase “黃石市政府 ……免去其外經貿局副局長” (my emphasis) in the Loss Certificate (see paragraph 96 above) suggested it was the Huangshi government that transferred the Plaintiff from Deputy Chief of the Bureau to Deputy Manager of the Economic Office pursuant to his health condition after the Accident. In the circumstances, I cannot say that such transfer was unrelated to the Accident.
116. I do not agree with Ms Lau’s submission that the 2004 Notice (see paragraph 30 above) suggested that the Plaintiff was appointed Deputy Manager of the Economic Office due to re-organisation. The Economic Office was re-organised in 2004, but the 2004 Notice merely announced the Plaintiff’s appointment as Deputy Manager of such re-organised Economic Office without specifying that his transfer from the Bureau was due to such re-organisation. In my view, a fair reading of the Loss Certificate and the 2004 Notice together suggested that the Hubei government appointed the Plaintiff as Deputy Manager of the re-organised Economic Office due to his health condition after the Accident.
117. I do not find this surprising. First, although the Handicap Certificate essentially dealt with governmental compensation under the relevant regulations without any recommendation for reducing the Plaintiff’s earnings and working hours, there was no doubt that his employer was well aware of his “2B” handicap classification. Secondly, I have found that the Bureau put the Plaintiff on light work when he returned to full-day work in late March or April 2004. Thirdly, Dr Lam opined that the Plaintiff’s working ability would be partly affected by his capacity in travelling. Dr Lam believed this “should not be a limiting factor for a high ranking official”, but such belief ignored the fact that the Plaintiff’s pre-Accident job as Deputy Chief of the Bureau focused on foreign-related matters and required travel. Indeed, the Plaintiff was injured whilst he was in Hong Kong as a member of the Hubei trade delegation.
118. But even if the Hubei government decided to transfer the Plaintiff to become Deputy Manager of the Economic Office, was it reasonably justified for him to choose to work on half-day basis? There was no suggestion that the Plaintiff could not have worked on full-day basis had he wished. Mr Cheuk submitted there was no logical reason for the Plaintiff to choose to work on half-day basis at reduced pay unless his health condition after the Accident required so. But I cannot ignore the conclusion from the above analysis that the Plaintiff exaggerated his complaints, impairments and disabilities, and that some of his deficits and complaints were in fact unrelated to the Accident. Whilst I accept that the Plaintiff had mild residual symptoms, I am of the view he could have resumed full-time work after a reasonable period of adjustment, say, 3 months, to his new position as Deputy Manager of the Economic Office.
119. After all, the Plaintiff confirmed that as Deputy Manager of the Economic Office he did light work, ie distributing messages and carrying out public promotion. He was driven to work by a chauffeur and few dinner parties or social functions required his attendance. Further, Dr Woo opined that from a neurological perspective the Plaintiff should be able to resume work as a civil servant. Dr Lam was of the view he should be able to continue to work as a government official until normal retirement. Dr Chan opined there was no permanent impairment of the whole body due to splenectomy which procedure alone would not have adverse effect on his job position. Further, there was no medical report/record from the PRC Hospital to the effect that the Plaintiff’s medical condition rendered him only capable of working on a half-day basis.
120. Bearing in mind that Dr Woo opined (and I accept) that the Plaintiff would have recovered sufficiently for gainful employment by September 2004, and that the Plaintiff should have a reasonable adjustment period for his new position as Deputy Manager of the Economic Office, I am of the view that the Plaintiff should have been able to return to full-time work after end of December 2004, and he would not be entitled to damages for his personal choice to continue working on a half-day basis thereafter. The Plaintiff’s subjective motive behind his decision, whether for compensation purpose or his unrelated complaints or otherwise, is irrelevant.
121. According to the Bureau’s 2004 “職工工資檔案表” for the Plaintiff as Deputy Chief of the Bureau, he made RMB¥6,616.00 in September 2004 (ie RMB¥1,463.00 for “財務工資” and RMB¥5,153.00 for “單位自籌工資”). Thereafter, as Deputy Manager of the Economic Office, his monthly income was RMB¥3,512.00 (ie RMB¥2,905.00 for “財務工資” and RMB¥607.00 for “單位自籌工資”). Although the sub-items of remuneration for “單位自籌工資” were the same for the 2 jobs, the sub-items of remuneration that comprised “財務工資” for the 2 positions were different (ie “職務工資”, “級別工資”, “基礎工資”, “工齡工資”, “生活補貼” and “地差補貼” for Deputy Chief of the Bureau, and “職務工資”, “級別工資” and “生活補貼” for Deputy Manager of the Economic Office).
122. The Plaintiff claimed that the monthly partial loss of earnings was not RMB¥3,104.00 (ie RMB¥6,616.00 – RMB¥3,512.00), but RMB¥4,544.00 (ie RMB¥5,153.00 – RMB¥607.00 (being “單位自籌工資”) – RMB¥2.00 (being adjustment of “扣住房公積金” under “單位自籌工資”)), which was said to be the loss due to reduction of “單位自籌工資” without taking into account the increase in “財務工資” of RMB¥1,442.00 (ie RMB¥2,905.00 – RMB¥1,463.00).
123. In support of such contention, Mr Cheuk referred to the Loss Certificate (see paragraphs 34 and 96 above), which provided inter alia as follows:
“一、崗位變動致經濟損失：…… 其年收入減少情況如下：
| 意外前(如職務升遷) |
意外後(黃石市經委副主任) |
年收入減少 |
| 崗位津貼每年24000元 |
3800元 |
20200元 |
| 政府獎金每年40000元 |
4000元 |
3600元 |
| 交通、電話補貼9600元 |
1200元 |
8400元 |
| 共計 |
|
64600元 |
| 意外前(如職務升遷) |
意外後(黃石市經委副主任) |
年收入減少 |
| 崗位津貼每年24000元 |
3800元 |
20200元 |
| 政府獎金每年40000元 |
4000元 |
3600元 |
| 交通、電話補貼9600元 |
1200元 |
8400元 |
| 共計 |
|
64600元 |
至60歲退休，須工作13年，共計將減少收入839800元。”
There was no dispute that the amounts in the first column above were premised on remuneration after promotion to a ranking or position higher than Deputy Chief of the Bureau (but the precise ranking or position was unknown). Mr Cheuk submitted that since the above comparative table in the Loss Certificate only identified 3 sub-items of remuneration under “單位自籌工資” without any reference to “財務工資”, the increase of “財務工資” upon the Plaintiff’s transfer from Deputy Chief of the Bureau to Deputy Manager of the Economic Office should be ignored.
124. I disagree. The Plaintiff’s actual loss of income in real terms for October 2004 was RMB¥3,104.00. Indeed, the《關於劉琛收入狀況的證明》issued by the Bureau dated 20 May 2008 confirmed that his “2001年各項工資、津貼、獎金相加，稅後月入為6610元; 2008年稅後收入為3512元，個人所得稅已由市財政局代扣”. The burden was on the Plaintiff to satisfy the court on the balance of probabilities and on credible and reliable evidence that another mode for calculating the loss was appropriate.
125. The Loss Certificate did not explain why the increase in “財務工資” received by the Plaintiff as Deputy Manager of the Economic Office should not be taken into account. After all, the sub-items of remuneration under “財務工資” for Deputy Chief of the Bureau and for Deputy Manager of the Economic Office were different, which logically suggested that the different sub-items of remuneration under “財務工資” corresponded to the 2 different positions. In any event, the comparison in the Loss Certificate between an unknown promoted position and a Deputy Manager of the Economic Office was not particularly helpful in assessing loss of earnings between the Plaintiff’s former position as Deputy Chief of the Bureau and his subsequent position as Deputy Manager of the Economic Office.
126. Bearing in mind that common law damages for pre-trial loss of earnings are intended to be compensatory of loss actually suffered, I do not accept Mr Cheuk’s suggested calculation of the monthly multiplicand. In my view, the total loss of earnings for the period from October to December 2004 should be RMB¥3,104.00 x 3 months = RMB¥9,312.00. As for the remaining pre-trial period, ie 63 months from January 2005 to March 2010, there was no direct evidence as to what the Plaintiff could have earned by working full-time as Deputy Manager of the Economic Office. Doing the best I can on the available evidence, by adopting “財務工資” of RMB¥2,905.00 and doubling the half-day “單位自籌工資” rate of RMB¥607.00 (ie RMB¥1,214.00) to a total sum of RMB¥4,119.00, the partial loss of earnings from January 2005 to March 2010 would be (RMB¥6,616.00 – RMB¥4,119.00) x 63 months = RMB¥157,311.00. In the circumstances, total pre-trial loss of earnings were RMB¥31,800.00 + RMB¥9,312.00 + RMB¥157,311.00 = RMB¥198,423.00.
(f) Future loss of earnings
127. For the above reasons, the Plaintiff also suffers future partial loss of earnings, and the relevant monthly multiplicand is RMB¥6,616.00 – RMB¥4,119.00 = RMB¥2,497.00.
128. Mr Cheuk suggested that the normal multiplier should be 8 [3], but the authorities he cited concerned decoration “sifu” or roast meat worker or supervisor with no fixed retirement age. Here, the Plaintiff was required to retire at 60 years. By March 2010, he was just 2 months short of 53 years with remaining working years of 7 years and 2 months. A multiplier of 8 years that went beyond actual working life span must be inappropriate.
129. But the Plaintiff went even further. He claimed that but for the Accident he “would have continued working as the same position and be promoted to the highest positions until after the age of 60”, so the appropriate multiplier should be 14. I find it conceptually incorrect to reflect any possible loss of income upon promotion (which necessarily goes to the multiplicand) by increasing the multiplier (which reflects purchase of future years by accelerated payment) beyond actual remaining working life. In any event, the Plaintiff has failed to establish any real and substantive chance of promotion (see paragraph 99 above).
130. Taking into account the future years up to the time of the Plaintiff’s retirement at 60 years and the limited yield from accelerated payment of future loss of earnings over the relatively short period of future years, in my view the appropriate multiplier should be 6 and not 8 as suggested by Mr Cheuk. Thus, the award for future loss of earnings is RMB¥2,497.00 x 12 months x 6 = RMB¥179,784.00.
VII. PAST MEDICAL EXPENSES
131. There is no dispute that the Plaintiff incurred (a) HK$115,070.00 being hospital fees at PYNEH, and (b) RMB¥51,824.70 being hospital fees for the 1st PRC Hospital Stay.
132. The Plaintiff claimed further hospital fees of the PRC Hospital for the 2nd to 5th Hospital Stays in the total sum of RMB¥522,726.00 and miscellaneous medical fees in the sum of RMB¥83,856.80 due to his alleged continued need to see doctors and take medications after the Accident. The 2nd Defendant put the Plaintiff to strict proof of such medical expenses.
133. In respect of the 2nd to 5th Hospital Stays, the Charges Certificate stated inter alia that : “患者劉琛於2004年3月20日、2004年8月2日、2005年7月16日、2005年10月25日四次在我院住院治療。到目前為止，其住院、治療費均未經算。欠我院住院診療費共計522726元整 …… 特此說明”, but did not specify the condition of the Plaintiff on admission, the purpose and duration of the hospitalisations, the diagnoses and nature of treatment received by the Plaintiff and/or the corresponding fees for each of the 2nd to 5th PRC Hospital Stays.
134. The Plaintiff insisted that the medical treatment received during the 2nd to 5th Hospital Stays were all related to the many injuries to his body, spleen, chest, head, leg and ear and to all other residual symptoms as a result of the Accident on the basis that he was in good health prior to the Accident. He claimed that during the 2nd to 5th PRC Hospital Stays he discussed with his treating doctors who confirmed that the symptoms were related to Accident, but no medical report/record verifying such hearsay assertion was placed before me. The Plaintiff claimed that the sum specified in the Charges Certificate of 26 December 2005 was still unpaid, but he did not produce any written confirmation from the PRC Hospital after 4 years.
135. The Plaintiff also claimed he incurred the following miscellaneous medical expenses (including outpatient expenses) which were all related to the Accident even though the names of the western/Chinese medications and/or the nature of the medical investigations/treatments were not given:
| Date |
Description (RMB￥) |
Amount
(RMB￥) |
Assessment
bundle |
| 16/1/04 |
西藥費 |
968 |
p.214 |
| 18/1/04 |
中草藥(4,000)，治療費(3000)，注射資(1) |
7001 |
p.215 |
| 1/2/04 |
西藥費(21盒) |
39185.80 |
p.216 |
| 2/3/04 |
西藥費(853)，中藥費(621)，檢查費(977) |
2,451 |
p.218 |
| 8/3/04 |
西藥(1)，中成藥(800)，中草藥(6000)，診察費(1000) |
7801 |
p.220 |
| 16/8/04 |
中成藥(2700)，檢查費(3,000)，治療費(2000)，化驗費(1000) |
8700 |
p.232 |
| 17/8/04 |
西藥(1000)，中草藥 (5200)，檢查費(2000) |
8200 |
p.233 |
| 17/8/04 |
治療費(9850) |
9850 |
p.233 |
|
|
RMB￥84,156.80 |
|
136. A number of observations were apparent from the above. First, I have found that the 2nd PRC Hospital Stay was caused by the Accident and that the 4th PRC Hospital Stay was unrelated to the Accident. As regards the 3rd and 5th PRC Hospital Stays, whilst I accept the Plaintiff’s mild visual and hearing disturbance was caused by the Accident, I have found that he was unable to establish that extended inpatient treatment for 34 days of hospitalisation under each of the 3rd and 5th PRC Hospital Stays was therapeutically and/or reasonably necessary. Secondly, the Plaintiff failed to produce any hospital bill or breakdown of the claimed amount of RMB¥522,726.00 that identified the hospital charges for the 2nd PRC Hospital Stay and/or the treatment cost for the mild visual and hearing disturbance (as distinct from the charges for the 3rd and 5th PRC Hospital Stays).
137. As Ms Lau pointed out, there was paucity of evidence to assist the court on the appropriate measure of the charges for the 2nd Hospital Stay and for reasonable treatment of the visual and hearing disturbance. This raised the question as to (a) whether the Plaintiff’s claim for incurred hospital charges for the 2nd PRC Hospital Stay and for reasonable medical expenses for treatment of his mild visual and hearing disturbance should be dismissed as suggested by Ms Lau or (b) whether the court should ascertain and award damages for such medical expenses as best as it could on the available evidence.
138. Since I found that the 2nd PRC Hospital Stay was the result of the Accident, and was satisfied that the Plaintiff required some treatment (but the extent and duration of which he failed to prove) for his mild visual and hearing disturbance, I am convinced the court should not simply dismiss this head of claim as suggested by Ms Lau. The question of quantification may be difficult, but the court must do the best it can on consideration of all the evidence and using its common sense (see McGregor on Damages 18th ed paras.8-012 – 8-013 at pp.331-333).
139. However, I am not persuaded the court can safely rely on the claimed amount of RMB¥522,726.00 to work out the charges for the 2nd PRC Hospital Stay and for reasonable treatment of the Plaintiff’s mild visual and hearing disturbance. I bear in mind that even in the more intense phase of the Plaintiff’s treatment and rehabilitation for 73 days of hospitalisation under the 1st PRC Hospital Stay, only RMB¥51,824.70 (with full breakdown and receipt) was incurred. But on rough average calculation on the basis of the Charges Certificate, each of the 2nd to 5th PRC Hospital Stays lasting a month or so would cost RMB¥522,726.00 x ¼ = RMB¥130,681.15, ie almost 2½ times more expensive than the cost of the 1st PRC Hospital Stay. No explanation was forthcoming from the Plaintiff.
140. Further, the Plaintiff did not offer any plausible or reasonable explanation as to why he was prepared to pay (and according to him actually paid) tonic food expenses of RMB¥256,706.00 over a similar period in 2004 to 2005 (see paragraph 163 below), and yet he chose not to pay his hospitalisation charges. On balance, I am unable to accept his explanation that he was unable to pay for his hospitalisations given his apparent ability to pay for expensive tonic food over the same period.
141. Perhaps some insight could be obtained from the Plaintiff’s evidence under cross-examination. He said under corss-examination that part of his hospitalisation fees were settled by way of receipts issued to him as outpatient charges. He insisted that he sought outpatient treatment because the hospitalisation charges “could not be counted but they can give you a receipt as outpatient”. Indeed, even on his own case, he claimed he sought outpatient treatment from the PRC Hospital’s outpatient department(s) on 16-17 August 2004 (see receipts specified in paragraph 135 above), but also asserted that he was hospitalised as inpatient of the PRC Hospital on those 2 days under the 3rd PRC Hospital Stay.
142. The Plaintiff tried to explain this away by saying that some medical treatment procedures in Mainland China were different, and that the PRC Hospital would only give a receipt after settlement of the hospitalisation fees but he had no money left to pay for the hospitalisation charges for the 2nd to 5th PRC Hospital Stays after he settled the outpatient charges. In re-examination, the Plaintiff also said he could not remain as inpatient and had to seek outpatient treatment at the PRC Hospital because he did not settle the hospitalisation charges. When pressed further on the situation for 16-17 August 2004, he said he could not remember clearly because he attended the PRC Hospital’s outpatient department(s) on many occasions after the Accident but all of them were related to the Accident.
143. In my view, the Plaintiffs’ evidence is a masterly attempt at side-stepping the issue, and it undermines the reliability of his claims for both hospitalisation and outpatient charges, especially when there were no documents from the PRC Hospital to verify his assertions. In any event, it would not be right to allow the claimed amount of RMB¥522,726.00 if, as the Plaintiff said, outpatient receipts were issued to cover his hospitalisation charges for part of the 2nd to 5th PRC Hospital Stays, and this might explain why hospital bills were not available for the so-called “unpaid” hospitalisation charges even after 4-5 years. The potential duplication of charges for outpatient expenses on 16-17 August 2004 (when the Plaintiff claimed to be an inpatient) and for inpatient hospital fees for the same period could not be brushed aside by the bare assertion that medical procedures in Mainland China were different. Given the inherent unreliability of the Plaintiff’s evidence in this respect, I am unable to place weight on the claimed amount in the Charges Certificate or on the claimed outpatient expenses.
144. I also find it unsafe to place weight on the receipts for the miscellaneous medical expenses. For “西藥費” in the sum of RMB¥39,185.80 in the receipt dated 1 February 2004 (see paragraph 135 above), which was the single most expensive miscellaneous medical expenditure, it was stated that the unit rate per box was RMB¥185.80, so the total amount for 21 boxes should be RMB¥185.80 x 21 boxes = RMB¥3,901.80, ie substantially less than the total sum of RMB¥39,185.80 written on the receipt. The Plaintiff did not offer any explanation for the grossly inflated sum in the receipt. In the circumstances, and taken into account the Plaintiff’s willingness to exaggerate, I find myself unable to safely rely on the receipts for miscellaneous medical expenses. Further, there is no evidence on how such medications were therapeutically necessary and relevant for the injuries and disabilities the Plaintiff suffered as a result of the Accident.
145. In the circumstances, I am unable to rely on the Charges Certificate or on the receipts produced by the Plaintiff for miscellaneous medical expenses to determine the Plaintiff’s incurred medical expenses for injuries and disabilities as a result of the Accident. Nevertheless, I am prepared to allow reasonable expenses for the 2nd PRC Hospital Stay and for outpatient treatment of his mild post-concussional syndrome, mild residual chest pain, some left knee pain, and mild visual and hearing disturbance (but not for other unrelated symptoms and conditions). Using the charges for the 1st PRC Hospital Stay as a reference, I allow RMB¥60,000.00 as hospital charges for the 2nd PRC Hospital Stay. Although the duration of hospitalisation was much shorter as compared with the 1st PRC Hospital Stay, laparotomy procedure was performed. As regards miscellaneous medical expenses, I adopt a broad figure of RMB¥50,000.00 which largely reflected disallowance of the sum of RMB¥39,185.80 in the receipt dated 1 February 2004, disallowance for outpatient treatments/medications which were therapeutically unnecessary or for unrelated conditions (eg follow up visits to the urology clinic of the PRC Hospital as reported by the Plaintiff to Dr Woo – see paragraph 49 above), but allowance for outpatient treatments/medications for mild visual and hearing disturbance and other related conditions which were therapeutically necessary or reasonable.
146. The award for past medical expenses is HK$115,070.00 and RMB¥51,824.70 + RMB¥60,000.00 + RMB¥50,000.00 = RMB¥161,824.70.
VIII. FUTURE MEDICAL EXPENSES
147. The Plaintiff claimed the sums of HK$30,000.00 and RMB1,500,000.00 for future medical expenses.
148. According to Dr Lam, MRI scan of the left knee showed a small radial tear at body of lateral meniscus, and he recommended an anthroscopic meniscectomy which would cost around HK$30,000.00 including surgeon’s fees and rehabilitation at a private hospital in Hong Kong. Dr Lam opined that most patients would have satisfactory recovery after such procedure, and indeed many sufferers of torn meniscus were active sportsmen who could return to competitive games soon after the procedure.
149. The Plaintiff gave evidence that after the Accident it was a bit tense behind the knee. He had not made any plan for the operation recommended by Dr Lam of which he only had a vague idea because he had no money for the same notwithstanding his continued employment as a civil servant in Mainland China. But he planned to have such operation when he saved enough money from his salary.
150. Ms Lau submitted that since the Plaintiff had no present plan for the operation and he was seen to be walking well in the Recording, the court should dismiss such claim. In my view, given the presence of the small meniscus tear of the left knee and Dr Lam’s opinion that arthroscopy would likely offer recovery or relief to the Plaintiff, I see no reason why his claim for costs of such future medical expenses should be disallowed. There was no evidence that the Plaintiff was unwilling to undergo the procedure if put in funds.
151. As regards the Plaintiff’s claim for future medical expenses to be incurred in Mainland China, the Plaintiff relied on the《湖北省黃石市中心醫院關於患者劉琛目前診斷及後期治療的情況說明》dated 18 February 2006 (“Treatment Certificate”), which stated as follows:
“患者劉琛，男，49歲，湖北省黃石市人。於2003年9月18日在香港公差時因車禍致全身多處受損傷，經香港及我院救治。經治療和住院檢查後，現留下如下并發症：
| 1、腦外傷綜合症 |
2、外傷性癲癎 |
| 3、暈厥原因待查 |
4、雙眼軸性視神經萎縮 |
| 5、雙眼聂頁側偏盲 |
6、神經性耳聾 |
| 7、雙側多發性陳舊性肋骨骨折 |
8、血氣胸術後 |
| 9、胸膜肥厚粘連 |
10、脾切除術後 |
| 11、肝臟修補術後 |
12、術後腸粘連 |
| 13、性功能下降 |
|
上述十三項並發症需後期治療費及綜合費用約人民幣壹佰伍拾萬元左右。
醫生簽名：張[illegible]”
152. For reasons explained below, I am unable to place any weight on the Treatment Certificate, and I reject the Plaintiff’s claim for loss of future medical expenses in the sum of RMB¥1,500,000.00.
153. The Plaintiff gave evidence that in 2006 (ie when he had resumed work for more than a year) he approached the senior doctor-in-charge looking after him at the PRC Hospital surnamed Cheung to provide the Treatment Certificate. He said he was still attending outpatient treatment at the PRC Hospital at that time. However, the last outpatient treatment receipt adduced by the Plaintiff was dated 17 August 2004 (see paragraph 135 above), and according to the Lam Report dated 16 August 2007, the Plaintiff’s last outpatient visit to the PRC Hospital was in February 2007, “and the next appointment would be arranged when necessary” (see paragraph 49 above). Indeed, the Plaintiff also gave evidence that he had ceased to receive inpatient and/or outpatient treatment by mid-2007. So in my view, by the time of the Treatment Certificate in February 2006, the Plaintiff was gradually tailing off his outpatient treatments rather than looking forward to having more medical treatment as suggested in such certificate.
154. Ms Lau doubted whether the Treatment Certificate was issued on behalf of the PRC Hospital. Interestingly, such certificate was not on the letterhead of the PRC Hospital and the hospital chop was not affixed thereon, which letterhead and hospital chop could be found in other documents from the PRC Hospital in the assessment bundle. Further, although the Plaintiff claimed that Dr Cheung had access to his medical records and gathered information from other treating doctors from various departments of the PRC Hospital in order to prepare the Treatment Certificate, it was a bare assertion unsupported by any documentary evidence. Dr Cheung’s position and his department within the PRC Hospital, the steps he took to ascertain the Plaintiff’s medical background and history to evaluate the need for future treatment, and which other treating doctors he consulted were not given in the Treatment Certificate at all. Still further, such certificate said to be issued in February 2006 was not shown to Drs Woo, Chan and Lam in July 2007 for their opinion.
155. More importantly, the Treatment Certificate did not set out the nature and expected duration of the suggested medical treatment that was estimated to cost RMB¥1,500,000.00. Even more importantly, some of the specified items in the Treatment Certificate could not be supported. For example, the Treatment Certificate did not identify any future medical treatment that was required for “1、腦外傷綜合症” and “2、外傷性癲癎”. For “3、暈厥原因待查”, it was clear that Dr Cheung did not even know the cause of the dizziness. Further, Dr Woo opined that for the Plaintiff’s head injury no further pharmacological or surgical treatment and no regular neurological/neurosurgical evaluation were required.
156. For “7、雙側多發性陳舊性肋骨骨折”, Dr Lam opined that treatment for rib fracture was conservative, and union of the fractures had been achieved. I cannot see what future treatment would be required and none was identified. For “8、血氣胸術後”, it was unhelpful for identifying future medical treatment by merely stating “post-haemothorax”. According to Dr Lam, the Plaintiff’s chest condition was stable. He further opined that although the Plaintiff might have residual on and off aching upon exertion, the pain should be mild and deterioration after the rib fractures had healed was not expected. In particular, he did not identify further specific treatment for the chest condition. As regards “9、胸膜肥厚粘連”, I am not satisfied there was any pleural adhesion requiring future medical treatment (see paragraph 73 above).
157. The references to “10、脾切除術後” and “11、肝臟修補術後” were unhelpful in identifying what future medical treatment would be required after the splenectomy and plication of liver laceration done more than 6 years ago. In any event, Dr Chan found there was no impairment arising from these procedures (see paragraphs 79-80 above) and I find on balance that no further medical treatment was required. For “12、術後腸粘連”, I accept that Dr Chan opined there would be a risk of future intestinal adhesions, but there had been none to date since early 2004. There was also no evidence as to what regular future medical treatment would be required for prevention of and/or pending occurrence of such intestinal adhesion. The risk of future intestinal adhesions has been taken into account in the award for PSLA.
158. I have rejected any causal connection between sexual dysfunction and the Accident. Even though I accept there was some mild visual and hearing disturbance, I am not satisfied there was any cogent evidence as to what future medical treatment would be required for such condition (see paragraphs 25 and 46-48 above).
159. I am however prepared to accept that some medication would be required for symptomatic relief for post-concussional syndrome (see paragraph 58 above) and for hearing disturbance (see “處理: 建議擴管營養神經治療” in the “病歷續頁” dated 24 April 2008 in by “耳鼻喉科: 劉維榮[及]萬浪” in paragraph 45 above). No further treatment for the right knee is necessary (see paragraph 70 above).
160. Given the Plaintiff’s exaggeration of his symptoms, disabilities and impairments, the opinion by Drs Woo, Chan and Lam that no further medical treatment would be required, and the aforesaid analysis, I am unable to place any weight on the Treatment Certificate and the assertions therein that future medical expenses would require RMB¥1,500,000.00. It is most telling that the Plaintiff did not adduce any invoices/receipts for medical expenses or even tonic food incurred after 2005 to date. Consequently, I am prepared to award only a reasonable sum of RMB¥20,000.00 to take into account the possible future medical expenses in paragraphs 157 and 159 above.
161. In the circumstances, the award for future medical expenses was HK$30,000.00 and RMB¥20,000.00.
IX. TONIC FOOD
162. The Plaintiff claimed the sum of RMB¥257,006.00 for incurred expenses for tonic and heath care food “so as to make sure that [he] could have good recovery after the [Accident]”. The 2nd Defendant put the Plaintiff to strict proof as to the requirement and reasonableness of such claim, and was only willing to concede a sum of RMB¥77,406.00 (ie the 1st 2 items in the paragraph below).
163. The Plaintiff premised his claim on the following:
| Date |
Description |
Amount (RMB￥) |
Assessment bundle |
| 20/10/03 |
冬蟲夏草(包) |
38.000.00 |
p.208 |
| 9/12/03 |
蟲草(包) |
39,406.00 |
p.209 |
| 6/2/04 |
燕窩 |
39,850.00 |
p.217 |
| 6/3/04 |
天然雪燕 |
24,000.00 |
p.219 |
| 8/5/04 |
人參口服液 |
900.00 |
p.224 |
| 7/6/04 |
壯骨粉 |
870.00 |
p.225 |
| 7/6/04 |
野山參 |
50,400.00 |
p.226 |
| 7/7/04 |
補品 |
23,560.00 |
p.227 |
| 2/8/04 |
保健品 |
7,320.00 |
p.228 |
| 3/9/04 |
補品 |
26,800.00 |
p.234 |
| 7/2/05 |
營養保健 |
5,600.00 |
p.239 |
|
|
RMB￥256,706.00 |
|
164. According to the Plaintiff, the purchase of tonic food on 6 February 2004 was made after his discharge from the 1st PRC Hospital Stay for consumption whilst recuperating at home. During the 1st PRC Hospital Stay, the medical doctors recommended him to consume tonic food such as “冬蟲夏草”. He claimed to have asked the doctors why such tonic food was necessary, and they orally replied it would be good for his health and recovery. The Plaintiff was still resting at home when he made the next purchase of expensive tonic food a month later on 6 March 2004 for consumption to assist recovery. He could not remember how many times tonic food was purchased from May to June 2004 since such purchases were made by the Wife. On 7 June 2004 (ie when he was receiving neither inpatient nor outpatient treatment), the Plaintiff spent considerable sum to purchase expensive tonic food (ie “野山參”). The Wife purchased “保健品” on 2 August 2004 when the Plaintiff was hospitalised under the 3rd PRC Hospital Stay. The Plaintiff could not remember the purchases on 3 September 2004 and 7 February 2005. The Plaintiff claimed that his doctors reiterated the advice to consume tonic food during the 2nd to 5th PRC Hospital Stays, but he did not ask them to write any memo to certify the need for tonic food for his recovery. He also insisted that since the tonic food was good for him, it could be purchased at any time whether he was hospitalised or not.
165. I accept that the Plaintiff suffered severe initial injuries. His spleen was removed and his liver was lacerated. He also broke a number of ribs and suffered from post-concussional syndrome. There was mild visual and hearing disturbance and some left knee pain. I further accept the Plaintiff felt that nutritious tonic food would help his rehabilitation and recovery.
166. But were the tonic food expenses in 2004 and 2005 as claimed by the Plaintiff justified? The Plaintiff strongly relied on the doctors’ recommendations given to him during the 2nd to 5th Hospital Stays, yet such recommendations was not referred to in his witness statement prepared only a few days before the assessment hearing or in any documentary evidence forthcoming from the PRC Hospital. Further, the Plaintiff could not give any satisfactory explanation as to why there were no invoices/receipts for tonic food after February 2005 when according to him he was hospitalised twice under the 4th and 5th PRC Hospital Stays and his doctors continued to recommend his consumption of tonic food. When pressed, the Plaintiff could only say some tonic food might have been purchased after the 4th and 5th PRC Hospital Stays but he had forgotten. Still further, even though the Treatment Certificate of February 2006 was allegedly issued by Dr Cheung of the PRC Hospital at the Plaintiff’s request, there was no mention therein of any doctors’ recommendation for tonic food.
167. Interestingly, although the Plaintiff claimed the doctors at the PRC Hospital recommended him to consume tonic food during the 2nd to 5th Hospital Stays, the Plaintiff’s purchases of tonic food other than on 2 August and 3 September 2004 were not made during his hospitalisations. He tried to explain this away by saying he received similar recommendations for consuming tonic food during outpatient attendances. But his purchases of tonic food in 2004 also did not complement the timing of his outpatient attendances. For example, there were no outpatient treatments between March and July 2004, but substantial purchases of expensive tonic food were made on 6 March, 8 May, 7 June and 7 July 2004. When pressed, the Plaintiff claimed he attended outpatient treatments from time to time but he could not clearly remember the number of times.
168. Mr Cheuk suggested that before the Accident, the Plaintiff did not have the habit of taking tonic food, so the tonic food purchased in 2004-2005 was necessarily due to his weak health after the Accident. But given the above analysis, the absence of any documentary evidence from the PRC Hospital as to the advisability or suitability or efficacy of different types of tonic food purchased on different occasions to the Plaintiff’s rehabilitation in respect of particular disabilities and injuries from any doctor or herbalist or person with medical knowledge, the Plaintiff’s tendency to exaggerate, and the unreliability of the receipts he adduced for miscellaneous medical expenses (see paragraph 144 above), on balance I find the Plaintiff’s evidence that the purchases of tonic food were made on doctors’ recommendations inherently unreliable. In the circumstances, only a reasonable sum would be awarded [4].
169. In assessing what would be a reasonable sum, I bear in mind that (a) the Plaintiff’s residual disabilities were mild, (b) the tonic food he purchased was very expensive and indeed even more expensive than the PRC medical treatment expenses allowed, (c) the receipts he adduced for miscellaneous medical expenses were unreliable and grossly inflated (note that the same institution issued the receipts at pp.216, 224, 225 and 228 of the assessment bundle), (d) some of the tonic food purchases were made whilst he was actually hospitalised and/or receiving treatment, (e) some of his conditions (eg sexual dysfunction, frozen shoulder, spinal spondylosis etc) and hence corresponding hospitalisation and/or treatment (eg 4th PRC Hospital Stay) were unrelated to the Accident, (f) he returned to light work in late March or April 2004, and (g) he could have returned to full-time work by January 2005. I find the expenditure on tonic food excessive and unreasonable. Taking all the above matters into account but bearing in mind that the Plaintiff was a Chinese national who believed in the efficacy of tonic food, I allow a global sum of RMB¥120,000.00 for the Plaintiff’s claim for tonic food expenses.
X. CARE EXPENSES
170. There is no dispute that the Plaintiff was entitled to claim for loss of earnings of the Wife in the sum of RMB¥8,193.40 for having to take care of him between 19 September and 31 December 2003.
171. However, the 2nd Defendant disputed the Plaintiff’s claim for the sums of HK$27,400.00 and RMB¥16,833.40 being fees and/or loss of income for care services allegedly rendered by his elder brother “劉璋” (“Brother”), a Hong Kong resident, by his colleague Mr Liu Hui Fa (“Mr Liu”) in Hong Kong, and by his colleagues Mr Liu and Mr Pi Qing Yuen (“Mr Pi”) in Mainland China. The 2nd Defendant also denied the Plaintiff’s further claim for the sum of RMB¥72,000.00 being “caretaker-nurse expenses for the period from 5/10/2003 to 4/10/2006 – a total of 36 months (and continuing) @ RMB2,000.00”.
(a) Brother
172. The Plaintiff claimed that between 18 September and 4 October 2003 the Brother took care of him whilst he was hospitalised at PYNEH, and thereby suffered loss of income of HK$13,000.00. The Plaintiff relied on an unsigned “護理證明” dated 5 January 2006 allegedly by “劉璋” (“Brother Certificate”) which provided as follows:
“ 劉璋香港居民，傷者劉琛的哥哥，在深圳港豪貿易有限公司擔任總經理，月薪¥貳萬元。於2003年9日18日至2003年10日4日日夜看護被車撞傷住在東區醫院的弟弟劉琛，期間停發薪金17日，計¥11,333.-,每日三餐到醫院送食交通費用每天$100.- x 17天，計$1,700.-，共計約港幣13,000.-
特此證明”
173. But under cross-examination, the Plaintiff confirmed he did not prepare the Brother Certificate and could not remember who prepared such certificate or whether it had been shown to the Brother. He did not ask the Brother who still lived in Hong Kong, or the Brother’s Hong Kong employer who still employed the Brother, to confirm the Brother’s loss of salary for 17 days. He offered no explanation why he did not ask the Brother to give evidence on his behalf. He claimed to have reimbursed the Brother’s loss of income but there was no documentary evidence of any payment or receipt.
174. Quite simply, I am unable to place any weight on the Brother Certificate which on its face purported to emanate from the Brother when in fact the maker thereof was unknown and it was unclear whether the Brother was even aware of such document. There was no satisfactory reason why the Brother who was available in Hong Kong could not have been called or subpoenaed to give evidence. In this respect, I refer to and rely on the maxim omnia praesumuntur contra spoliatorem [5], which “…… is a simple rule of thumb that a court is likely to draw adverse inferences against a party who fails to produce an item in circumstances where the item should have been produced and an adequate explanation for its non-production is not forthcoming” [6]. Other than the Plaintiff’s bare assertion, there was also no satisfactory evidence as to how and when the Plaintiff reimbursed the Brother.
175. More importantly, it is unreasonable for the 2nd Defendant to bear the costs associated with the Wife, Mr Liu and the Brother to look after him whilst he was hospitalised in Hong Kong. Taking all of the above into account, I reject the Plaintiff’s claim for loss of earnings by the Brother.
(b) Messrs Liu and Pi
176. Next, the Plaintiff claimed that Mr Liu suffered loss in the sum of HK$14,400.00 for taking care of him whilst he was hospitalised in Hong Kong. For this the Plaintiff relied on a “証明材料” dated 16 December 2003 signed by “護理人” Mr Liu and Mr Pi (“Colleagues Certificate”) as follows:
“ 2003年9月19日 – 10月4日劉琛先生因交通意外受重傷，在港搶救期間，我在香港東區醫院護理劉琛先生，共計16天。住宿費、伙食費、交通費按大陸赴港包干使用原則，每人每天900港幣，合計14400元港幣。
2003年10月4日 – 12月15日，劉琛先生回大陸後，我與皮青雲先生在黃石市中心醫院護理劉琛先生，共計72天，每人每天60元人民幣，計4320元人民幣，共計二人護理，合計護理費8640元人民幣。”
177. The Plaintiff claimed that Mr Liu and Mr Pi started to look after him on 19 September 2003 (ie the day after the Accident) upon arrangement by the work unit (“單位”), ie the Bureau. He agreed that emotionally the Wife as his close relative was a better person in looking after him. But he insisted it was still necessary for his colleagues to look after him because (a) he was unconscious and his injuries were severe, (b) they were assigned by the Bureau to look after him, and (c) his family were worried about his critical condition. But under cross-examination, the Plaintiff clarified only Mr Liu, who came to Hong Kong in his official capacity as a member of the Hubei trade delegation, stayed on in Hong Kong after the Accident to look after him. But for the Accident Mr Liu would have returned to Hubei on 21 September 2003 and his expenses from 19 to 21 September 2003 would be borne by his work unit.
178. I accept that but for the Accident the Bureau would not have assigned Mr Liu to remain in Hong Kong to look after the Plaintiff. I further accept it was not unreasonable for Mr Liu to look after the Plaintiff since the Plaintiff was unconscious and severely injured. Both the Plaintiff and the Wife were non-residents of Hong Kong, and it was sensible and reasonable for Mr Liu to be on hand to make appropriate arrangements for his care and eventual return to Hubei upon discharge from PYNEH.
179. But the more important question is whether the Plaintiff suffered any loss as a result of having Mr Liu look after him during his hospitalisation in Hong Kong.
180. According to the Colleagues Certificate, Mr Liu’s living expenses (ie accommodation, meal and transport expenses) per day was HK$900.00. The Plaintiff explained this was the government fixed rate for standard financial allowance for a PRC civil servant working in Hong Kong in official capacity. The Plaintiff adopted this daily rate as the basis for calculation of Mr Liu’s loss of earnings. But since such daily rate was the government allowance for civil servants who were overseas in official capacity, and Mr Liu was assigned by the Bureau to remain in Hong Kong to look after the Plaintiff (ie he did not remain in Hong Kong as a personal friend of the Plaintiff), I am unable to appreciate any loss suffered by Mr Liu unless there is clear and cogent evidence that the Bureau failed to pay such allowance to Mr Liu and that Mr Liu was out of pocket for his expenses in Hong Kong for which the Plaintiff was liable to reimburse.
181. When pressed on who paid Mr Liu’s expenses when he was in Hong Kong from 19 September to 4 October 2003, the Plaintiff said under cross-examination that Mr Liu had to personally pay for his expenses and then his work unit would pay him some allowance which was different from the government fixed rate of HK$900.00 per day. But the Colleagues Certificate only referred to the government fixed rate of HK$900.00/day and made no mention of “some allowance” by the work unit at all. In any event, the Plaintiff was unable to give the amount of expenses allegedly incurred by Mr Liu (and strangely Mr Liu did not specify so in the Colleagues Certificate) and/or the amount of “some allowance” paid to Mr Liu by the work unit. The Plaintiff’s explanation under cross-examination could not be found in his witness statement, which instead endorsed the Colleagues Certificate that offered a different basis for the alleged loss, and I find the same unreliable. Further, the Plaintiff claimed in his witness statement that he “did pay the nursing fees incurred as stated [in inter alia the Colleagues Certificate]”, and it is surprising that he did not know the relevant amount.
182. I note with interest the Plaintiff had no difficulty in producing a certificate issued by “黃石市民政局” dated 17 January 2006 that clearly set out the Wife’s leave of absence from the office for 3 months from 19 September to 31 December 2003 and that “其工資予以停發”, but there was no reliable evidence (other than the Plaintiff’s assertions which I reject) that Mr Liu did not receive any allowance for his overseas stay in Hong Kong or any income from 19 September to 4 October 2003. The Colleagues Certificate fell shy of stating so, and it appeared logically unreasonable to assume the Bureau would have expected Mr Liu to pay for his own expenses when he was assigned by the Bureau (and not out of his own volition) to remain in Hong Kong to look after the Plaintiff.
183. When the Plaintiff returned to Mainland China after the Accident, he was hospitalised for 73 days and the Wife looked after him on full-time basis. When asked as to why it was also necessary for Mr Liu and Mr Pi to look after him in such circumstances, the Plaintiff claimed under cross-examination that his recovery was drawn-out and they visited him in their personal capacity as his friends. But he also gave evidence that the Bureau assigned them to look after him from 4 October to 15 December 2003 so that part of their expenses was borne by them and part was covered by very small allowances paid by the work unit (but he did not know the amount of such allowances). The Plaintiff had been asked to reimburse the work unit for such allowances paid to Mr Liu and Mr Pi, but he did not have money to pay the same.
184. Again I find such explanations by the Plaintiff unreliable. As the Plaintiff agreed, there was no documentary evidence to show that Mr Liu and Mr Pi were not paid any salary between 4 October and 15 December 2003, especially when it was suggested the Bureau assigned them to look after him. He claimed they signed some document but it was not disclosed. In my view, if Mr Liu and Mr Pi were assigned by the Bureau to look after him, it is illogical to assume they would be deprived of their usual income and remuneration. More importantly, there was no suggestion to such effect in the Colleagues Certificate. That being the case, I am unable to appreciate any loss of income suffered by Mr Liu or Mr Pi.
185. If, according to the Plaintiff’s oral evidence, his case were that Mr Liu and Mr Pi took on additional care beyond their usual work for which they incurred additional expenses part of which they had to bear themselves and part of which was covered by small allowances by the work unit, there was no evidence before me on the nature and amount of the out of pocket expenses they incurred when the Plaintiff was hospitalised, especially when they had free meals provided by the Plaintiff (see paragraph 190 below). As for the allowances given by the work unit, the Plaintiff clarified that the daily sum of RMB¥60.00 in the Colleagues Certificate was a standard financial allowance calculated on the salary of Mr Liu and Mr Pi for coming to look after them, but such standard financial allowance was not paid by the work unit. Instead, the work unit paid a small allowance to each of them, but there was no evidence of the amount thereof. So ultimately there was no or no reliable evidence before me of the nature and amount of out of pocket expenses of Mr Liu and Mr Pi after taking into account the allowance paid by the work unit. Further, I find it hard to understand that the Plaintiff had no idea of the amount of the allowance given by the work unit when he claimed had been asked to reimburse but did not have money to pay the same. I also do not see the logic of the Bureau requiring and assigning Mr Liu and Mr Pi to look after the Plaintiff and setting a standard financial allowance but not paying the same for over 6 years.
186. In any event, such explanation by the Plaintiff did not sit well with the Colleagues Certificate (which did not refer to incurred expenses by Mr Liu and Mr Pi in looking after the Plaintiff or to any allowance by their work unit) or the Plaintiff’s witness statement which claimed that he had paid the incurred fees as stated in the Colleagues Certificate.
187. I find the Plaintiff’s evidence in respect of the care allegedly rendered by Mr Liu and Mr Pi contradictory, unreliable and inherently implausible. More importantly, I am not satisfied on balance that during the 1st PRC Hospital Stay when the Plaintiff was under the medical treatment and care of the PRC Hospital, the Plaintiff would require not only the care and attention of the Wife but also care by Mr Liu, Mr Pi and a personal care worker. I find such alleged arrangement to be excessive and unreasonable and I reject the Plaintiff’s claim for expenses for care by Mr Liu and Mr Pi.
(c) Personal care worker
188. Next, the Plaintiff claimed for expenses for care services pursuant to a written nursing care service agreement (“護理工用工協議書”) dated 5 October 2005 (“Nursing Agreement”) with “田盛清” (“Madam Tin”) for 24-hour nursing care by care worker(s) selected by Madam Tin at RMB¥2,000.00 per month (“全日(24小時)護理費貳仟元/月”) from 5 October 2003 to 5 October 2006. Clause 2 of the Nursing Agreement provided inter alia as follows:
“二、 服務項目
服務項目為起居照顧、保健及用藥指導; 膳食營養調配; 幫助病人翻身、褥瘡預防，皮膚保健，洗頭，洗澡; 讀書、讀報等，病人生活護理、病床護理、接送陪護病人就診和檢查、觀察病情及用藥反應、病人家居及器皿消毒等。”
189. The Plaintiff claimed that upon introduction by the Public Message Department, he reached agreement with Madam Tin who started to provide care services to him since 5 October 2003. At that time, there was no Nursing Agreement. About 1-2 years later (the exact date of which the Plaintiff could not remember), Madam Tin heard from the Public Message Department that it was better to have a written agreement, so the Nursing Agreement was prepared and signed in October 2005. The Plaintiff insisted he had paid the monthly sum of RMB¥2,000.00 to Madam Tin even though no documentary evidence of such payment or receipt was adduced by him at all.
190. The Plaintiff further claimed that during the 1st PRC Hospital Stay, the care worker cooked meals for him, the Wife, Mr Liu and Mr Pi as the food provided for the PRC Hospital was unsatisfactory. He said he still required the services of Madam Tin even though he had the Wife, Mr Liu, Mr Pi, and the PRC Hospital’s doctors and medial staff to look after him during the 1st PRC Hospital Stay. He said the PRC Hospital only attended to his medical condition.
191. I am persuaded that during 1st PRC Hospital Stay the Plaintiff would require the assistance of a care worker. When he was discharged after such hospitalisation, he was ambulatory with aid of the Wife, so I accept that for his hospitalisation during the 1st PRC Hospital Stay the Plaintiff would require assistance on general care (eg bathing and washing hair), ambulation training and preparing nutritious meals. However, immediately upon discharge from the PRC Hospital, the Plaintiff was able to come to Hong Kong with the Wife. The care worker did not accompany them (see also clause 10 of the Nursing Agreement). I am unable to accept that the Plaintiff still required 24-hour care services upon discharge from the PRC Hospital after the 1st PRC Hospital Stay. Further, when the Plaintiff returned to full-day work in late March 2004 or April 2004, he remained in the office for the full day even though he did not do a lot of work, and he confirmed that the care worker did not accompany him to work. In such circumstances, 24-hour nursing service was plainly no longer required.
192. Further, the scope of services covered by clause 2 of the Nursing Agreement also showed the irrelevance of 24-hours nursing care in the case of the Plaintiff. The services as specified included turning the patient, prevention of bedsores, skincare protection, reading books and newspapers etc. These services were those that were required for bed-ridden patients, but by the time of discharge from the 1st PRC Hospital Stay the Plaintiff was ambulatory albeit with assistance. There was no suggestion that he could not read books or newspapers. After all, the Plaintiff was back to work since late March or April 2004. As regards preparation of nutritious meals and activities of daily living after the 1st PRC Hospital Stay, I do not accept that a 24-hour care worker was required. Indeed, the medical experts were of the view that the Plaintiff was independent in activities of daily living. I am also not persuaded there was any medical basis for requiring a care worker (who was not specified to be a registered nurse) to monitor his medical condition and medication or to sterilise utensils. The Plaintiff’s condition was nowhere near the degree of the seriousness that required such services. In my view, the very fact that the Nursing Agreement made 2 years after the fact provided for such extensive but unnecessary services for a period of 3 years (and which the Plaintiff by his pleadings and his witness statement claimed was still continuing) were enough to underline the exaggeration on the part of the Plaintiff for compensation purpose.
193. There is no documentary evidence of payment made to Madam Tin, but I accept that RMB¥2,000.00 per month for care services rendered during the 1st PRC Hospital Stay was not unreasonable. In the circumstances, I award care service expenses in the sum of RMB¥2,000.00÷ 30 x 73 days = RMB¥4,866.70.
(d) Summary
194. Thus, the total care expenses incurred by the Plaintiff would be RMB¥8,193.40 + RMB¥4,866.70 = RMB¥13,060.10.
XI. TRANSPORTATION EXPENSES
195. The Plaintiff claimed HK$15,628.00 for expenses for travelling to Hong Kong (including hotel costs) to receive treatment.
196. There was no dispute that the Plaintiff came to Hong Kong between 16 and 19 December 2003 for seeking medical treatment at PYNEH. On discharge from PRC Hospital on 15 December 2003, he was ambulatory with aid of the Wife, so I accept it was reasonable for the Wife to accompany him to Hong Kong. For travelling expenses inclusive of airfare for 2 persons, 4 days’ accommodation and taxi fares etc, I find on balance that a reasonable award would be HK$10,000.00 bearing in mind that Plaintiff did not adduce any documentary evidence in support of claim or give any evidence as to the breakdown amounts of the various sub-items of expenditure.
197. I am not persuaded that the Plaintiff was entitled to costs of his visit to Hong Kong on 3-4 July 2007 which was for attending forensic interviews by Drs Woo, Chan and Lam for the purpose of litigation and not for medical treatment.
XII. SUMMARY
198. I summarise the Plaintiff’s loss and damages as follows:
|
HK$ |
RMB￥ |
| PSLA |
600,000.00 |
|
| Pre-trial loss of earnings |
|
198,423.00 |
| Future loss of earnings |
|
179,784.00 |
| Past medical expenses |
115,070.00 |
161,824.70 |
| Future medical expenses |
30,000.00 |
20,000.00 |
| Tonic food expenses |
|
120,000.00 |
| Care expenses |
|
13,060.10 |
| Transportation expenses |
10,000.00 |
|
|
755,070.00 |
693,091.80 |
199. I therefore order the 2nd Defendant to pay the Plaintiff damages in the sums of HK$755,070.00 and RMB¥693,091.80. Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of income and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.
200. There will be a costs order nisi that costs of the assessment of damages (including all costs reserved, if any) be paid by the 2nd Defendant to the Plaintiff to be taxed if not agreed with certificate for counsel.
XIII. SUMMARY ASSESSMENT OF COSTS
201. On 1 December 2009, I directed that the costs orders under paragraphs 10 and 14 of my order dated 2 October 2009 be determined by summary assessment.
202. On 2 October 2009, I directed that the Plaintiff do pay the 2nd Defendant costs of and occasioned by the Plaintiff’s summons dated 21 October 2009 with certificate for counsel. Such summons sought leave to file and serve the Plaintiff’s witness statement, to make discovery of further documents, to further revise the Revised Statement of Damages and to abridge time for making such application.
203. The Plaintiff’s summons was made on the 1st day of the assessment hearing by which time Ms Lau had been briefed. Given Ms Lau’s seniority, I accept her hourly rate of HK$4,000.00. However, given the impact of the late application on the conduct of the assessment hearing that necessarily required heavy involvement of trial counsel in formulating the response, the hourly rate of the more senior handling solicitor Ms Chu should be adjusted to HK$3,800.00 to reflect this.
204. As regards fees for communications in the revised statement of costs, I am not persuaded that the application required the 2nd Defendant’s solicitors to spend an hour post-hearing in communications with counsel and the Plaintiff’s solicitors. Further, given the nature of the application in which substantive instructions from the client on the items of the Plaintiff’s loss and damages would be unlikely, I also find 1.5 hours of communications with the client excessive. Ms Lau proposed HK$3,400.00 (ie 1.7 hours of Mr Tsoi’s time), but I consider 1 hour of Mr Tsoi’s time (ie HK$2,000.00) would be appropriate. Mr Tsoi is the more junior handling solicitor acting on behalf of the 2nd Defendant.
205. As regards professional work, I do not see why engrossment preparation of the Revised Answer drafted by Ms Lau could not be delegated to Mr Tsoi. Since the hearing was attended by Mr Tsoi, I find that he and not Ms Chu should peruse the relevant documents. Given the heavy involvement of counsel at the assessment hearing itself, I am not prepared to allow time for general care and conduct, and the time required for perusal of documents and preparation for hearing should be reduced on party and party summary assessment. The 2nd Defendant claimed for HK$10,340.00, but upon consideration I allow 3.8 hours of Mr Tsoi’s time (ie HK$7,600.00) for professional work.
206. As regards counsel’s fees, I accept counsel’s fees of HK$10,000.00 for drafting the Revised Answer. It is too simplistic for the Plaintiff to suggest that the Revised Answer “consisted only of amendments of figures which the 2nd Defendant is willing to concede” and that it “also overlaps with Item D1”. First, preparation to resist the Plaintiff’s application was a different exercise to revising a pleading after the proposed amendments were ruled upon by the court. The fact that after due consideration the amendments were not substantial should not belittle the exercise, especially when the ruling by the court did not fully accept either party’s contentions. Secondly, there was no overlap of work between counsel drafting the revised pleading and the 2nd Defendant’s solicitors engrossing the revised pleading upon receipt of the draft from counsel.
207. As regards counsel’s fees for attending the hearing of the Plaintiff’s summons, it is unreasonable for ask for a full refresher fee since Mr Cheuk proceeded with opening submissions for the assessment of damages and the Plaintiff started to give evidence in the afternoon. I consider an appropriate amount under this head should be HK$27,000.00.
208. Thus, I order the Plaintiff to pay the 2nd Defendant’s costs under paragraph 10 of my order dated 2 October 2009 in the sum of HK$241.00 (manual work) + HK$2,000.00 (communications) + HK$7,600.00 (professional work) + HK$27,000.00 (counsel’s fees) = HK$36,841.00.
209. On 2 October 2009, I also directed that the Plaintiff do pay the 2nd Defendant costs of the preparation of items 95-105 and 109 of the assessment bundle index and costs of and occasioned by inter partes communications and correspondence in relation to the inclusion/exclusion of such items/pages in the index and/or the assessment bundle.
210. I maintain that Ms Chu’s hourly rate should be HK$3,800.00. It was said that there were 2 letters from the 2nd Defendant’s solicitors to the Plaintiff’s solicitors about the index, and that the handling solicitor spent time to review the index and relevant documents in the proposed assessment bundle. The Plaintiff denied there was any relevant correspondence. However, there can be no doubt that the 2nd Defendant’s solicitors were put to the trouble of reviewing unnecessary documents in (and unnecessary portion of the index of) the assessment bundle. In all, I find such exercise would have taken about half an hour. Thus, I order that the Plaintiff to pay the 2nd Defendant costs under paragraph 14 of my order dated 2 October 2009 in the sum of HK$179.00 (manual work) + HK$1,900.00 (communications and professional work) = HK$2,079.00.
| |
(Marlene Ng) |
| |
Master of the High Court |
Mr Calvin Cheuk instructed by Messrs. Edwin Yun & Co for the Plaintiff.
Ms Julia Lau instructed by Messrs. Deacons for the 2nd Defendant.
________________
[1] Chan Pui Ki (an infant) v Leung On & anor [1995] 3 HKC 732, 783 and Lee Hoi Yin v Ho Ka Yin HCPI 81/2003, Suffiad J (unreported, 22 November 2004)
[2] Lee Hoi Yin v Ho Ka Yin HCPI 81/2003, Suffiad J (unreported, 22 November 2004) and Lee Yuen Ngan, Amy Lawrence v Lau Wing Hop HCPI 223/1999, Suffiad J (unreported, 4 June 1991)
[3] Ching Kam v Au Wing Keung HCPI 765/1995, Master Kwan (unreported, 16 December 1998) and Chan Kwun Tak v Kwok Chun Fong HCPI 676/1998 (unreported, 18 September 2000)
[4] Yu Ki v Chin Kit Lam [1981] HKLR 419, King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575
[5] Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKC 713
[6] PC International Marketing Limited v Best Power Enterprises Limited CACV 208/2004 (unreported, 10th May 2005) per Rogers VP
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