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DCPI 1887/2016
[2018] HKDC 1181
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO 1887 OF 2016
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BETWEEN
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CHEUNG SHING CHI |
Plaintiff |
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and
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LEE KAI YUNG |
1st Defendant |
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HOI TAT TRANSPORT LIMITED |
2nd Defendant |
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Before: His Honour Judge Ko in Court
Date of Hearing: 20 September 2018
Date of Judgment: 21 September 2018
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JUDGMENT
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1. This is a personal injury action.
Background
2. On 3 March 2015 at about 4:45 pm, the plaintiff was traveling on board a light goods vehicle bearing registration no LU7288 (“the LGV”) driven by the 1st defendant. The LGV collided with the vehicles ahead near the milestone CH18.3W on Cheung Tsing Highway, causing personal injuries to the plaintiff.
3. The 1st defendant pleaded guilty to and was convicted of the offence of careless driving in relation to the accident. It is apparent from the brief facts admitted by him in court that he had failed to pay due care and attention to the traffic condition ahead and failed to stop in time to avoid the collision.
4. The 2nd defendant was the registered owner of the LGV, as well as the employer of both the plaintiff and the 1st defendant.
5. The plaintiff claimed against the 2nd defendant for employees’ compensation in DCEC1012/2015. On 10 November 2017, the court rendered a judgment against the 2nd defendant and assessed the compensation payable to the plaintiff to be $153,876 (“the EC Judgment”).
6. By this action, the plaintiff claims against both defendants for the loss and damage suffered as a result of the accident.
7. The 1st defendant did not enter an appearance and interlocutory judgement was entered against him on 3 February 2017 for damages to be assessed.
8. The 2nd defendant was formerly represented by solicitors. It filed a Defence, an Answer to the Revised Statement of Damages and a witness statement (of 陳峰) in these proceedings. On 3 January 2018, the 2nd defendant gave notice to act in person and did not participate further in these proceedings.
The issues
9. On liability, the primary case of the plaintiff is that the 1st defendant was negligent (in driving the LGV at the time of the accident) for which the 2nd defendant should be vicariously liable.
10. The 2nd defendant denies vicarious liability. It alleges in the Defence that: “the Plaintiff was off duty” and “the Plaintiff boarded the LGV driven by the 1st Defendant without any permission or consent from the 2nd Defendant and the ride was unauthorized by the 2nd Defendant.” The 2nd defendant also alleges that the plaintiff was contributory negligent, for failing to wear a seatbelt and failing to take care of his own safety.
11. Thus, the main issues on liability are:
(1) Whether the 2nd defendant was vicariously liable for the negligence of the 1st defendant?
(2) Was the plaintiff contributory negligent?
12. The parties also dispute the quantum of the plaintiff’s claim.
13. Only the plaintiff testified at trial.
14. Both defendants are absent and the 2nd defendant’s witness (陳峰) did not turn up. Pursuant to Order 38, rule 2A(6) of the Rules of the District Court, the 2nd defendant’s witness’s statement may not be adduced as evidence.
Was the 2nd defendant vicariously liable for the negligence of the 1st defendant?
15. According to the plaintiff, the 2nd defendant is in the business of transportation and logistics of mainly sport shoes and accessories. He was employed by the 2nd defendant and had been assigned to drive the LGV.
16. On the day before the accident, his supervisor (陳峰) instructed him to show the 1st defendant (a new driver) around and to familiarize him with the usual delivery routes on the following day.
17. On the day in question, he picked up the 1st defendant from the 2nd defendant’s warehouse in Sheung Shui before making deliveries for the 2nd defendant. During the day, the plaintiff received instruction that he should return some goods to the 2nd defendant’s warehouse in Fanling. After finishing their last order in Olympian City, the plaintiff allowed the 1st defendant to drive the LGV to return the goods to the Fanling warehouse.
18. The plaintiff gave a consistent account to the authorities after the accident: see his Declaration dated 20 April 2015, his police statement dated 28 April 2015 and his statement to the Labour Department dated 1 June 2015. There is nothing in the evidence to contradict the plaintiff’s version, as陳峰’s statement has been excluded.
19. I find that the plaintiff was on duty at the time of the accident and that the 1st defendant was driving the LGV for the 2nd defendant’s business. Similar conclusion was reached in the employees’ compensation proceeding: see paragraphs 13-17 of the EC Judgment.
20. The 1st defendant’s negligence (as evidenced by his conviction) is beyond dispute. I find the 2nd defendant vicariously liable for the negligence of the 1st defendant.
Was the plaintiff contributory negligent?
21. It is the plaintiff’s evidence that he was wearing a seat belt at the time of the accident.
22. The 1st defendant gave a different account to the police (see his police statements at pp 206 & 209 of the Bundle) and in the Magistrates’ Court (see the transcript at p 214 of the Bundle). The 1st defendant has elected not to appear in these proceedings to defend his version and the plaintiff has been deprived of an opportunity to cross-examine him on his alternative account. In all fairness to the plaintiff, I shall disregard the 1st defendant’s account.
23. I reject the 2nd defendant’s case on contributory negligence for want of evidence.
Quantum
24. The solicitor representing the plaintiff (Mr Li) submits that the plaintiff should be entitled to:
(a) Damages for PSLA, between $250,000 and $280,000
(b) Pre-trial loss of earnings, totaling $516,862.50
(c) Loss of earning capacity, in the sum of $150,000
(d) Special damages, totaling $8,556
(a) PSLA
25. The plaintiff was 23 years old at the time of the accident and is now 27.
26. After the accident, he was taken to Princess Margaret Hospital for treatment. He complained of neck pain, right elbow pain, abdomen pain and right leg pain. X-ray confirmed avulsion fracture of the coronoid process of the right ulna. Plaster cast was applied and he was discharged from hospital.
27. The plaintiff received follow-up treatment from the Department of Orthopaedics and Traumatology of Princess Margaret Hospital. The splint over his right elbow was removed on 31 March 2015 and his injuries were managed conservatively with analgesic. He was referred to attend outpatient physiotherapy. At subsequent follow-ups, the plaintiff complained of depressive mood and was referred to the Department of Psychiatry for assessment and management. At the last consultation on 4 August 2015, the plaintiff reported improvement in his right elbow and neck but still complained of residual back pain.
28. Sick leave was granted up to 10 September 2015 when the plaintiff defaulted follow-up.
29. The Form 7 issued by the Employees’ Compensation (Ordinary Assessment) Board on 11 August 2016 certified that:
(a) the plaintiff suffered multiple injuries resulting in residual neck pain, residual back pain, right elbow pain and lower limb numbness;
(b) the period of absence from duty necessary as a result of the injury was from 3 March 2015 to 10 September 2015; and
(c) the loss of earning capacity permanently caused by the injury was 4%.
30. The parties have elected not to adduce expert medical evidence in these proceedings: see paragraph 1 of the order dated 30 June 2017. Hence, there is no up-to-date medical evidence on the plaintiff, other than the medical reports of Princess Margaret Hospital dated 2015/2016.
31. The plaintiff’s present condition is set out in paragraphs 14-22 of his witness statement, which is summarized by Mr Li as follows:
(a) Right elbow pain, especially upon writing and sometimes during sleep.
(b) Residual neck pain and numbness.
(c) Residual back pain, especially upon prolonged walking or sitting.
(d) Lower limb numbness, especially upon walking up or down stairs.
(e) Dreaming of the accident at night, and fear of travelling in vehicles driven by other people especially light goods vehicles.
32. In court, the plaintiff claims that he is still unable to lift heavy objects or drive for a prolonged period of time because of the accident.
33. On quantum, Mr Li has referred me to Lam Hung Yui v Muck Yun Chung formerly known as Chung Kee Electrical Works (unreported), HCPI 924/2004, 7 August 2007, Chung Ping Wai v Pedder Logistics Godown Ltd (unreported) DCPI 1770/20017, 11 June 2009, and Li Moon Chai v Leung Shu Man (unreported) HCPI 48/2007, 10 September 2008. He submitted that the plaintiff’s injuries are more in line with (albeit slightly less serious) Tsui Kwan Fai v Goldfield N&W Construction Company Ltd (unreported) DCPI 97/2006, 24 August 2007.
34. I agree with Mr Li that the plaintiff’s injury is less serious than that in Tsui Kwan Fai. Although both plaintiffs suffered elbow injury, the plaintiff there was kept out of work for 9.52 months whereas our plaintiff was only granted sick leave for about 2/3 of that duration. In Tsui Kwan Fai, there is medical evidence to confirm that the plaintiff had suffered total body impairment and risked developing post-traumatic arthritis of the right elbow in future. In the present case, the plaintiff claims in court that the doctors at the Department of Orthopaedics and Traumatology and the Physiotherapy Department had told him that he would not be able to lift heavy objects and could not drive for prolong period of time and that his condition would not improve. Mr Li confirms that there is no such reference in the medical reports. In fact, none of the treating doctors has opined that the plaintiff would suffer any permanently disability.
35. Taking everything into consideration, I award the plaintiff $200,000 as damages for PSLA.
(b) Pre-trial loss of earnings
36. The plaintiff studied up to Form 3 level and began working at the age of 16. After obtaining his driving license and permission to drive light goods vehicles, he mainly worked as a driver. Through the introduction of a website, he began working for the 2nd defendant on 28 January 2015 as a driver and delivery worker at the monthly salary of $17,000.
37. In its Answer to the Revised Statement of Damages, the 2nd defendant challenged that the plaintiff should not be entitled to rely on his earnings for the single month that he had worked for the 2nd defendant. The same issue was raised in the employees’ compensation proceeding. For the reasons set out in paragraph 26 of the EC Judgment, I accept that the plaintiff’s pre-accident income was $17,000 per month.
38. The period of sick leave of 192 days, whilst not admitted by the 2nd defendant, was confirmed by the Employees’ Compensation (Ordinary Assessment) Board.
39. I accept that the plaintiff has suffered loss of earnings during his sick leave in the sum of $114,240, ie $17,000 x 192/30 x 1.05.
40. According to the plaintiff, he has been unable to return to his pre-accident employment after the expiry of his sick leave.
(a) He took another 4 months (ie up to mid-January 2016) to rest and look for a new job.
(b) From mid-January to April 2016, he helped some friends to make cakes, earning $1,500-$2,000 a month.
(c) He was then out of work until the end of May 2016 when he began looking after baby for a relative, making $5,000 a month.
(d) Between June and December 2016, he accepted casual delivery orders through mobile-Apps and earned $2,000-$2,500 a month.
(e) Thereafter, he was engaged in casual jobs (such as making cakes, preparing food for delivery, accepting delivery orders, and washing cars) earning $8,000-$9,000 a month.
(f) Since 2 May 2018, he has been working as a swimming pool maintenance worker earning $10,400 a month.
41. Mr Li submits that the plaintiff should be awarded loss of earnings as follows:
(a) $71,400 for the period of mid-September 2015 to mid-January 2016, ie $17,000 x 4 months x 1.05;
(b) $48,037.50 for the period from mid-January to mid-April 2016, ie ($17,000 - $1,750) x 3 months x 1.05;
(c) $26,775.00 for the period from mid-April to end of May, ie $17,000 x 1.5 months x 1.05;
(d) $71,662.50 for the period from early June to late December 2016, ie ($17,000 - $5,000 - $2,250) x 7 months x 1.05; and
(e) $184,747.50 for the period from early January 2017 up to the date of trial, ie ($17,000 - $8,500) x 20.7 months x 1.05.
42. At the heart of Mr Li’s contention is his submission that it was reasonable for the plaintiff not to return to his pre-accident occupation. He gave two reasons for his submission: (i) the work capacity evaluation done on 17 July 2015; and (ii) the plaintiff’s evidence that he is afraid to travel in vehicles (especially light goods vehicles) driven by others. I do not accept his submission.
43. In the Occupational Therapist’s report dated 1 February 2016 (at page 106 of the Bundle), it was indeed reported that:
“WCE was done on 17th July 2015. He reported of pain over low back. There was numbness over his right lower limb. His lifting ability was slightly inadequate. There was decrease in his pushing and pulling…”
44. However, it was stated in the corresponding Work Rehabilitation Assessment worksheet (at pp 147-149 of the Bundle) that:
“…
Wassell’s inappropriate symptoms questionnaire: total 5 inappropriate scores (indicative of inappropriate illness behaviour)
Oswestry low back disability questionnaire: 57% (severe disability)
…”
45. And the occupational therapist concluded that:
“WCE was done with result explained. Unable to comment on the degree of match due to inconsistent effort was shown during assessment…”
46. Thus, the evaluation on 17 July 2015 was inconclusive and the occupational therapist suspected that the plaintiff had feigned his performance. That has led the doctor following-up on the plaintiff at the Department of Orthopaedics & Traumatology to report (at p 108 of the Bundle) that:
“At the last consultation on 04.08.2015, he reported improvement of right elbow pain and neck pain. He had residual back pain. According to the Occupational Therapy work rehabilitation assessment, it was reported that his work capacity could not be commented because he showed inconsistent effort during the assessment. He was referred to driving assessment by Rehabaid. Outpatient physiotherapy rehabilitation was continued. However, he defaulted follow up since 10.09.2015.”
47. The plaintiff has defaulted follow-up and has not undertaken any medical assessment for the purposes of this action. There is nothing (apart from his allegation) to document his fear of travelling in vehicles driven by others or any other psychological problem and there is no expert evidence to confirm that he is unable to return to his pre-accident employment.
48. The certification of the Employees’ Compensation (Ordinary Assessment) Board that the plaintiff has suffered 4% loss of earning capacity permanently caused by the injury does not assist the plaintiff. In Tang Shau Tsan v Wealthy Construction Company Limited, unreported, CACV58/2000, 5 April 2000, the Court of Appeal explained that:
“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”
49. In the present case, there is no proper medical expert evidence to confirm that the plaintiff is unable to return to his pre-accident employment. What’s more, the plaintiff is curiously silent on his effort and attempts to return to his pre-accident employment. Whilst I can understand why he may not want to work for the 2nd defendant again, there is no reason why he cannot look for similar employment through the internet. The fact that he has accepted casual delivery orders (through mobile-Apps and for friends) after the expiry of his sick leave is evidence that he can return to his pre-accident employment. There is no documentary proof of his post-sick leave income and the meagre income alleged by him bears the hallmark of artificiality.
50. In the end, the plaintiff has failed to prove that he is unable to return to his pre-accident employment to work as a driver and delivery worker after the expiry of his sick leave. No award for loss of earnings is therefore made after his sick leave.
(c) Loss of earning capacity
51. Mr Li also asks for $150,000 under this head (representing about 18 months of the plaintiff’s present monthly average earnings of $8,500) on the basis that: “Given the Plaintiff’s present disabilities arising from the accident which prevented him from engaging in prolonged driving or any delivery work, and the casual nature of his present various works, it is likely that the Plaintiff would be faced with a real risk of not being able to secure or maintain employment, and would be handicapped and disadvantaged in the labour market.” I have difficulty accepting such contention.
52. To start with, I have already rejected the argument that the plaintiff is prevented by his injuries to return to his pre-accident employment.
53. Damages for loss of earning capacity is not a conventional award made in the abstract but a specific mode of compensation that has to be based on evidence: Yuen Macie v Yeung Ying kit [2018] HKCA 125 at para 22. It bears repeating what was said in Chan Wai-tong v Li Ping-sum [1985] HKLR 176 at 183B-E:
“A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market… Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment… Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability…”
54. There is no evidential basis for such a claim and I refuse to make an award.
(d) Special damages
55. Under this head, Mr Li asks for:
(a) medical expenses in the sum of $1,556;
(b) travelling expenses in the sum of $2,000; and
(c) cost of tonic food in the sum of $5,000.
56. The claim for medical expenses has been accepted in the employees’ compensation proceeding: see paras 35 & 36 of the EC Judgment.
57. The travelling expenses look reasonable, as the plaintiff had to travel to and fro his home in Tsing Yi and Princes Margaret Hospital for follow-ups, physiotherapy and work capacity evaluation.
58. There is nothing in support of the clam for tonic food. However, the courts have always been ready to award a reasonable amount in this regard, even where no documentary proof is adduced: see Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) [2000] 1 HKLRD 796 at para 17; Yu Ki v Chiu Kit-lam [1981] HKLR 419 at p 421. I would allow the claim.
59. Thus, the plaintiff is awarded $8,556 special damages.
Employees’ compensation
60. The total award must be reduced by the employees’ compensation awarded to the plaintiff.
Summary of damages awarded
61. The plaintiff is awarded damages in the sum of HK$168,920 as follows:-
| PSLA |
HK$200,000 |
| Pre-trial loss of earnings |
HK$114,240 |
| Special damages |
HK$8,556 |
| Less: employees’ compensation |
(HK$153,876) |
| Total |
HK$168,920 |
Interest
62. I award interest on general damages for PSLA at 2% per annum from the date of service of the writ up to the date of judgment and interest on pre-trial loss of earnings and other special damages at 4% per annum from the date of accident up to the date of judgment.
Costs
63. I order the defendants to pay the plaintiff’s costs of the action, summarily assessed at HK$150,000.
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(Justin Ko) |
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Acting Chief District Judge
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Mr Li Cheuk Yiu of B Mak & Co for the plaintiff
The 1st and 2nd defendants in person did not attend the hearing
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