TSE TSZ KEUNG POCO v. CHAN YICK CHUN AND ANOTHER

HCPI 214/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 214 OF 2009

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BETWEEN

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J U D G M E N T

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Background

1.  On 12 April 2006, the Plaintiff’s taxi then driven by the Plaintiff, registration number KF 7096 parked outside Golden Gateway Multiplex at no. 25, Canton Road, Tsimshatsui was hit in the front by private car registration number LD 5209 then driven by the 2^nd Defendant.  At the time, 1^st Defendant was the registered owner of LD 5209.

2.  Plaintiff said as a result of the collision, his taxi was pushed backwards for around 1 foot because of the strong impact.

3.  Plaintiff said he suffered injuries, loss and damages as a result of the accident and now sued the Defendants, being the driver of the private car at the time for damages.

4.  As both Defendants failed to serve any defence, interlocutory judgment on liability was entered against them with damages to be assessed and costs to be taxed.

Injuries and Treatment

5.  Plaintiff said he felt pain in the neck and was sent to Queen Elizabeth Hospital where he complained stiff neck and tenderness at back of neck.  He was discharged after treatment and medication given.  He was also given sick leave up to 18 April 2006.

6.  X-ray taken at Queen Elizabeth Hospital showed no fracture.

7.  Plaintiff said he was later referred to Department of Orthopaedics and Traumatology of Caritas Medical Centre for follow up.  He had received regular follow ups since then.

8.  Plaintiff said he had also received physiotherapy treatment sessions for the first 6 months.

9.  He had not received any other treatments for his injury.

10.  According to medical records, Plaintiff had received around 19 physiotherapy treatment sessions from 27 April 2006 to 5 September 2006 but as there was no marked improvement, the same was discontinued.

11.  Plaintiff was assessed by the orthopaedic expert Dr. Kong Kam Fu, James on 19 August 2009 and a report was prepared.

12.  According to Dr. Kong, Plaintiff sat for 30 minutes during the interview.  He sat, stood and walked normally.  He also squatted normally.

13.  Physical examination showed no obvious deformity or muscle spasm.  There was normal cervical lordosis.  Numbness was present over midline of CT and right upper border of trapezium muscle region.  Motor powers of both upper limbs was normal.  Reflexes were normal.  There was full range of motions for both shoulders.

14.  According to Dr. Kong, the MRI report of cervical spine prepared by Dr. Lee Yat Wing of Department of Radiology of Caritas Medical Centre dated 29 August 2007 showed degenerative changes mainly at C5/6 level where mild thecal sac compression is noted.

15.  Again X-ray of cervical spine dated 18 August 2009 showed decrease in cervical lordosis and mild degree of pre-existing degenerative changes.  The disc space C5/6 is narrowed with anterior and posterior bony spurs.  There is no abnormal soft tissue swelling.

16.  Range of motion of the neck is slightly reduced, especially in lateral flexion and rotation.

17.  According to Dr. Kong, the Plaintiff suffered neck sprain as a result of this accident.

18.  The Plaintiff had a prior traffic accident where he also suffered neck sprain injury and he also had pre-existing cervical spondylosis.

19.  Dr. Kong said if the accident happened the way the Plaintiff described, then the diagnosis is consistent with the mechanism of the injury.

20.  The Defendant did not challenge how the accident occurred.  In fact, they failed to defend.

21.  In the circumstances, I am satisfied that the accident did occur in manner stated by the Plaintiff and that the Plaintiff did suffer “neck sprain” as a result.

PSLA

22.  In the Revised Statement of Damages, the Plaintiff claimed $200,000 under this head.  He said that the Plaintiff’s injuries fall within the lower end of “serious injury” category.

23.  In the closing submission, counsel for the Plaintiff, submitted that the appropriate figure under the heading is $63,000.

24.  He referred this Court to the case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 where the Court of Appeal agreed with the approach of Deputy Judge Woolley that

“When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state. The third is where this would certainly have occurred at some stage in any event. In the first, the defendant would be liable for all damage caused. In the second, it would be necessary to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of the vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”

25.  The Court of Appeal in Chan Kam Hoi, supra further held that:-

“Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.” (p.965E to G)

“When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff’s working life is likely to be limited by a pre-existing condition as in this case.”

26.  He conceded the present accident was not the first time the Plaintiff had injured his neck.  He said according to Dr. Kong and the Plaintiff himself, the Plaintiff had sustained neck sprain injury in a traffic accident 6 to 7 years ago.  He was treated in Kwong Wah Hospital for 3 to 6 months although the Plaintiff did say he had fully recovered from the earlier accident and no longer required medical treatments or follow-up.

27.  He submitted that as there was previous similar neck sprain injury (although symptom free at time of accident) and pre-existing degenerative changes of C5-C6 before the accident, that there be a 30% discount for award under this head.  I accept this submission.

28.  Counsel for the Plaintiff invited the Court to accept that the PSLA in the present case should be analogous to that of the 2^nd Plaintiff in the case of Chan Kam Hoi.

29.  The 2^nd Plaintiff in that case suffered dizziness after the accident.  Her range of movement of neck and back was full.  Later, she attended the hospital and complained of tenderness over her right neck and low back pain on prolonged walking and sitting for 2 to 3 hours.  The pain was relieved by changing of her posture and movement of her body.  She also felt dizzy a few times a week, which lasted for half a day.  The defendant’s expert opined that the 2^nd plaintiff sustained soft tissue sprain and contusion injury to her neck and low back as a result of the accident.  The 2^nd Plaintiff was awarded HK$90,000.00 as damages for PSLA.

30.  In my view, the case of the 2^nd Plaintiff is more serious than the case here.  Here, the Plaintiff had neck pain and there was neither dizziness nor back pain.  Rather, his case is more similar to that of the 1^st Plaintiff in the Chan Kam Hoi case.

31.  The 1^st Plaintiff in the case suffered sprained neck.  After the accident he did not go to hospital.  Later neck pain became more serious and he sought medical treatment.  He was diagnosed with soft tissue injury on back and neck.  He was referred to physiotherapy treatment and was on sick leave for 182 days.  He had on and off neck pain, which would occasionally wake him up at night.  He suffered restricted neck movements, neck stiffness and intermittent numbness on his upper limb.  His left hand could not raise or carry heavy objects.  Prior to the accident, he was very sportive but had to give up basketball, badminton, table tennis and soccer after the accident.

32.  However the Plaintiff here did not have numbness of upper limb as the 1^st Plaintiff in that case.

33.  I will adopt the figure of $80,000 as the award for PSLA in this case.

34.  It follows that the appropriate award under this heading is:-

$80,000 x 70% = $56,000 and I so award.

Pre-trial Loss of Earnings

35.  According to Dr. Kong, the Plaintiff can resume his job as a taxi driver although he would probably experience mild discomfort and difficulty in driving when he parks his car or when he needs to check his shoulders or rotate his head.  There would be mild degree of reasonable reduction of working efficiency.

36.  Dr. Kong also opines that the sick leave up to 21 March 2008 are within reasonable limits but he says further sick leave is probably unnecessary.

37.  In court, I had observed the Plaintiff.  He had been sitting in court as any other normal person.  When being questioned by the court and his counsel, he had turned his head and answered questions directed to him without any noticeable abnormality.

38.  The Plaintiff in court adopted contents of his witness statements dated 1 September 2009 (“1^st Statement”) and 13 January 2010 (“2^nd Statement”) as his evidence-in-chief.

39.  In the 1^st Statement, Plaintiff said he had been renting a taxi till date of the witness statement again he said since year 2001 up till date of witness statement, he was a taxi driver.

40.  In paragraph 7 of 1^st Statement, Plaintiff said after the accident, he had actually worked 3 months as a delivery worker.  He said when he had follow up consultations, doctor told him to stop working as such or else the neck pain will worsen.  He said therefore he stopped the job and resumed working as a taxi driver.

41.  His earnings from this delivery job however, had not been disclosed in the Revised Statement of Damages.

42.  In court, Plaintiff said in fact at the time of hearing, he was unemployed.  He was just looking after his daughter at home.  He said after the accident, he resumed driving a taxi since February 2008 until year 2009 when he ceased working as a taxi driver.

43.  This is inconsistent with his 1^st Statement and 2^nd Statement.  If he had in fact ceased being a taxi driver, why did he not say so in the Statements, bearing in mind the 2^nd Statement is dated 13 January 2010.

44.  In his 1^st Statement, he said because of the neck pain, he was only able to earn $3,000 a month as a taxi driver.

45.  I do not accept such evidence, at least not during the period after 21 March 2008, i.e. the sick leave approved by Dr. Kong.

46.  According to the expert report of Dr. Kong, he is able to return to his job as taxi driver with mild reduction in work efficiency.  His demeanour in court also do not support allegations of serious neck discomfort or pain.

47.  It is noted that his own expert Dr. Kong had used the words “mild”, “minimal” inconvenience, difficulty and discomfort.

48.  Apart from follow up consultations at Orthopaedics and Traumatology Department of Caritas Medical Centre, the Plaintiff had only received some medication and some 20 sessions of physiotherapy treatments within 5 months since the accident.  He did not seek alternative treatments.  His neck pain could not have been very serious.

49.  I do not accept his evidence on the severity of his neck problem.  I find that he can return to his previous job as a taxi driver but with slight reduction in income because of the slight restriction due to neck pain.

50.  According to the Plaintiff, before the accident, he used to work 7 am to 5 pm i.e. 10 hours a day.  I accept he might have to take more breaks now and work less.  I will discount his working time by 1½ hour and therefore his income by 15%.

51.  Counsel for the Plaintiff has suggested that in view of the pre-existing condition of the Plaintiff, the Court may find that the accident had caused the neck injury and aggravated the Plaintiff’s degenerative neck.  He conceded that the pre-existing degeneration had contributed to the Plaintiff’s residual neck pain and that some discount should be made to the damages which would otherwise be awarded.

52.  He asked the court to consider the case of Chan Kam Hoi and make the discount at 30%.  I accept this as reasonable.

53.  Plaintiff said before the accident, he used to work 26 days a month and earns $15,340 a month.  There is no documentary evidence in support of the contention.  He did not disclose any tax return nor does he produce any bank book for verification.

54.  This Court notes that the average monthly earnings of the Plaintiff is close to the figure disclosed by the Statistic Department of the Hong Kong Government in relation to earnings of taxi drivers in Hong Kong in year 2007.  I therefore accept evidence of Plaintiff that he was earning $15,340 per month before the accident.

55.  Plaintiff was given continuous sick leave up to 19 December 2008.  However, Dr. Kong was of the view that only sick leave up to 21 March 2008 was reasonable.

56.  It is noted that initially the Plaintiff was only given few days’ sick leave on each occasion.  Later, the doctors gave him much longer period of sick leave extending up to 2-3 months on each occasion.  There are altogether 24 sick leave certificates.

57.  According to the witness statements of the Plaintiff, he resumed working in February 2008.  He encountered difficulty whilst driving and as a result, he had to rest more and drove easier routes.  He only earned $3,000 per month.

58.  This Court can accept that during period till 21 March 2008, due to his physical conditions then, he earned only $3,000 per month as a taxi driver.  Following that, I find he could return to his taxi driver job with only mild reduction in income as aforesaid.

59.  I do not accept Plaintiff’s evidence that he needed to cease work as a taxi driver since year 2009 because of the accident.

60.  Counsel for the Plaintiff accepts that because of the pre-existing condition of the Plaintiff, there should be a 30% discount on award under his pre-trial loss of earnings.

61.  Accordingly, loss of earnings for the period from 12 April 2006 to 6 February 2008 is:-

$15,340 x 23 26/30 months x 70% = $256,280.26

62.  Therefore, for loss of earnings from 7 February 2008 till 21 March 2008 is:

($15,340 – $3,000) x 1 15/31 months x 70% = $12,817.68

63.  Loss of earnings from 22 March 2008 till date of hearing (i.e. 31 May 2010):

$15,340 x 15% x 70% x 26 11/30 months = $42,468.79

64.  Therefore, total pre-trial loss of earnings suffered by the Plaintiff is:

$256,280.26 + $12,817.68 + $42,468.79 = $311,566.73

Loss of Future Earnings

65.  According to Dr. Kong, the Plaintiff could return to work as a taxi driver though with slight reduction in work efficiency because of slight discomfort and inconvenience due to neck pain.

66.  As said, this Court accepted that he would only suffer a 15% loss on his earnings.

67.  His pre-accident earnings per month is $15,340 and therefore the multiplicand is $15,340 x 15%.

68.  Plaintiff is now aged 41.  It is said that had it not been for the accident he would work till age 60.

69.  Counsel for the Plaintiff invited the Court to consider the case of Chan Yiu Ping v Mok Yuk Kwong and others (HCPI 92 of 1998, unreported) and Wong Yiu Wa v Chan Shing (HCPI 1125 of 2000, unreported) where both plaintiffs were aged 41 at trial and the Court had adopted a multiplier of 12 in calculating future loss of earnings.

70.  I accept 12 is an appropriate multiplier for the Plaintiff at age of 41.

71.  Counsel for the Plaintiff submitted that according to Chan Kam Hoi, supra and Limbu Netra Kumar v Yau Lee Construction Co. Ltd (HCPI 234 of 2002, unreported), the proper approach in calculating loss of future earnings where the Plaintiff suffered a pre-existing condition is to make a deduction from the multiplier and that in the light of that evidence, it is submitted that the appropriate reduced multiplier to be adopted would be 6.

72.  I find this proposition reasonable and accept the same.  Accordingly, the loss of future earnings is assessed as: $15,340 x 15% x 12 x 6 = $165,672.

Special Damages and Medical Expenses

73.  Plaintiff claimed medical expenses.  The receipts for these treatments in the hearing bundle added up to $3,260 but as the Plaintiff only claimed $2,330 under this head in the Revised Statement of Damages, I am only willing to award $2,330.

Tonic Food

74.  As for the claim of $6,000 for tonic food, it is conceded by counsel for the Plaintiff that the Plaintiff had not in any of witness statements or in court deposed that he had in fact incurred expenses under this head.

75.  Counsel for the Plaintiff however submitted that relying on the case of Yu Ki v Chin Kit Lam [1981] HKLR 419 that the Court should grant $3,000 as a nominal sum under this head.

76.  I reject this argument.  As there is no evidence whatsoever from the Plaintiff or his witness that such expenses had been incurred, the case of Yu Ki is distinguished because in that case, Plaintiff’s son did give evidence and testified that fish soup and “tin chat” were consumed by the Plaintiff.

77.  I make no award for tonic food.

Summary

	$
PSLA	56,000
Pre-trial Loss of Earnings	311,566.73
Loss of Future Earnings	165,672
Medical expenses	2,330
Tonic Food	0
Total	$535,568.73

Interest

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

Cost

79.  I make a cost order nisi that the cost of and incidental to this assessment of damages hearing on District Court scale be to the Plaintiff, summary assessment of which adjourned to a date to be fixed with 1 hour reserved.  Notice of hearing to the Defendants.  The Plaintiff’s solicitors also to serve the Statement of Cost on the Defendants within 7 days of the date hereof.