CHU KWONG FU AND ANOTHER v. WONDER GOLD INVESTMENT LTD

HCPI 295/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 295 OF 2014

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ASSESSMENT OF DAMAGES

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1. The claim of the 2^nd plaintiff has been settled on the second day of the damages assessment hearing so I will only deal with the personal injury claim of the 1^st defendant below.

I.  BACKGROUND

2. The 1^st plaintiff was the driver of a vehicle owned by the 2^nd plaintiff.

3. At around 10am on 5 June 2012, a piece of building material fell off from the balcony of the defendant’s 2^nd floor flat at Evergreen Villa and landed on the roof of the vehicle, breaking its front glass sunroof.  The sun-shade sliding cover below the sunroof appeared intact and the falling material did not penetrate into inside the cabin. Only shattered glass fragments were found inside.

4. The 1^st plaintiff was not physically injured in the accident.

The 1^st plaintiff’s case

5. The 1^st plaintiff (“Mr Chu”) alleged that he was a driver employed by the 2^nd plaintiff and that he was driving the vehicle at the time.

6. After the accident, the vehicle was sent for repair.  As the 1^st plaintiff has his own van-hiring business, he continued to be the driver for the 2^nd plaintiff but was driving his own van (and occasionally another car belonging to the 2^nd plaintiff) until the vehicle was repaired and collected around 22 June 2012.

7. The 1^st plaintiff said he developed various psychiatric symptoms like anxiety and found it difficult to concentrate when driving.  He left the employment on 20 July 2012 and went to consult a private psychiatrist, Dr Kwan Ka Lik, Felix on 27 July 2012.

8. Dr Kwan diagnosed Post-Traumatic Stress Disorder (“PTSD”) and prescribed anxiolytics, later changed to antidepressants and hypnotics.

9. He consulted Dr Kwan on 4 further occasions with no improvement.

10. Dr Kwan encouraged him to resume part-time driving duties but he met with a road traffic accident in early September, purported to be “because of his intense anxiety during work”.

11. Dr Kwan last seen him on 8 October 2012 when the plaintiff’s “mood was anxious, but not overtly depressed…no active psychotic symptoms and no suicidal thoughts…cognitive function intact…expressed intense fear with a sense of reliving the experience when driving in busy traffic or approaching the place where the accident happened…tried to maintain part-time work but had episodic anxiety and restlessness affecting his work performance…”.

12. Dr Kwan referred him to government psychiatric outpatient clinic.

13. The 1^st plaintiff attended Tuen Mun Mental Health Clinic on 21 December 2012.  He was diagnosed to be suffering from PTSD with a differential diagnosis of depression. He has received drug treatment as well as counseling from occupational therapist and clinical psychologist.  He obtained a total of 98 days of sick leave from TMMH.

14. He informed the government psychiatrist that he “had no plan to resume work as he felt he was unable to drive and could not think of what other jobs he could do”.

15. The 1^st plaintiff found work as a trainee car salesman since 25 September 2014.

16. The 1^st plaintiff is claiming PSLA for his psychiatric condition, as well of loss of income, loss of earning capacity, as well as various past expenses (including repair costs of his own car in the road traffic accident) and future medical expenses.

The defendant’s case

17. The defendant disputes that the 1^st plaintiff was in the vehicle at the time of the accident, and he disputes that the 1^st plaintiff has any psychiatric illness, loss of income etc.

Assessing the evidence

18. I have already stated in Gurung Kamala v Hong Wei Limited DCPI 1660/2010 that :-

“…when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (e.g. pain and tenderness) are truthful or not. A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness.

…one would expect a doctor to document such if there were glaringly obvious inconsistencies of complaints which could not be explained by any known scientific medical knowledge.  However, most of the time, in the absence of such inconsistencies, a doctor would most likely record what he or she was told by the patient as the “medical history”.

….Thus, the “medical history” of a patient is essentially subjective and may be treated, under the proper circumstances, as no more than hearsay evidence as what the patient has informed the doctor at the time of consultation.

…The court may often be in a better position to assess the truthfulness of any subjective medical history in that it can, amongst others, review all available evidence and hear the opposing Counsels “testing” the evidence.

…The same argument applies for Sick Leave certificates. In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210…”

19. In the current case, the 1^st plaintiff is alleging that he has suffered from a psychiatric illness.  His complaints made to the doctors were, much like “pain and tenderness”, subjective complaints (eg depressed mood, suicidal thoughts, severe loss of energy, impairment of sleep, various anxieties and fears, “flashbacks” etc).

20. The DSM-IV diagnostic criteria used by both psychiatric experts, as discussed in great details in their expert report, are based upon such subjective complaints.

21. In claims where the diagnosis is based essentially upon subjective complaints (unlike, say, a claim for a wrist fracture which can be shown by objective evidence of a deformed wrist on examination and a fracture in an x-ray), the court must be aware that the credibility of the plaintiff is of utmost importance given the obvious self-interest of the plaintiff to make the claim.

22. Of course, finding of one or two small “symptom magnifications” or inaccuracies may be understandable and may not mean that the whole claim is bogus, but the court must tread carefully, the burden of proof being on the plaintiff to show that he has suffered such injuries.

23. The test I would look at, as in the Kamala case, is what a reasonable person under the circumstances would be expected to behave and if the plaintiff’s behavior conformed to that, and if not, whether there was any good reason to explain the plaintiff’s behavior.

24. The cross-examination of the 1^st plaintiff has one very remarkable feature.

25. The 1^st plaintiff admitted that he has only one bank account and his income would go into this account.

26. Mr Tang, counsel for the defendant, took the 1^st plaintiff through the bank records and asked him to account for the deposits of HK$15,000 and above since 2011 up to 14 April 2015 (which was about 2 weeks before the hearing).

27. I was not counting but there must have been over 25 or 30 of such deposits so Mr Tang must have asked the same question that many times.  The 1^st plaintiff replied “I cannot remember” every single time (except on three deposits which he identified as bank loans), blaming bad memory due to his psychiatric illness, or that it happened too long ago etc.

28. In other words, he claimed that he could not remember a deposit into his bank account just two weeks ago.  This, if true, would be a rather severe case of memory loss.

29. If a reasonable plaintiff has suffered any financial loss, I expect that he would expand every effort to investigate and would be at great pains to show the evidence to the court from his bank records and any other documents.  If he has a bad memory, he has plenty of time before the trial to conduct investigations and collect evidence to bolster his memory.  The last thing I expect him to do is to point to all the bank records and says, “I cannot remember”.

30. I note that the psychiatric experts did perform “cognitive” tests on the 1^st plaintiff  and found :-

“Orientation is intact except cannot tell day of month. Give birth date, address and phone numbers correctly….recalls all three objects a few minutes later…in subtracting 7 serially from 100 makes no mistake in five answers. Does not give absurd answers.”

31. Thus there was no finding of any severe loss of memory.

32. I also note that no doctor ever reported any findings of such severe loss of memory other than making reference to a “subjective complaint of memory decline”.

33. Of course, when Mr. Tang asked him why the vehicle was not collected after repair was completed on 21 June 2012, the 1^st plaintiff was quite capable of remembering that on that day, he has to drive his employer to the studio for filming so he could only collect the vehicle the next day.

34. The only reason I can think of why the plaintiff should lie that he has “poor memory” and refused to answer the questions about his bank account was because he realised that the bank records would show that he has not suffered any, or any significant loss of income.

35. All these raise a big question on his credibility.

II.  PSLA

36. On analysis of the evidence, especially with the “contemporaneous” police statement of the 1^st plaintiff and the security guard, I find that the 1^st plaintiff was likely to be inside the vehicle at the time of the accident.

37. But this does not help the court to decide whether the plaintiff has actually suffered from any psychiatric injury caused by the accident.

38. I have to be careful: the fact that the 1^st plaintiff was not credible regarding his financial loss under cross-examination might not necessarily mean that any diagnosis based on subjective complaints like psychiatric injury was bogus.

39. One may consider that if a plaintiff is a “rising star” earning a good salary, it is less likely for him to give up his work to fake an injury since he would be taking a big financial and career risk.  However, this is not such a case and, as discussed above, I do not find that there is any, or at least any significant, financial loss suffered by the 1^st plaintiff.

40. One may also consider that it may be less likely for a plaintiff to undergo lengthy medical treatment (consultations, expensive referrals to eminent experts in the field, painful surgical procedures or prolonged medications etc) if the injury is completely bogus.  This, of course, is not a “real or fake” test and certainly, there is no reason why any determined “scamster” should not be tempted to do just that. The 1^st Plaintiff’s case is that he has undergone lengthy consultations and medications (assuming that he really has been taking them and not just lying about his “drug compliance”).

41. Nevertheless, in a case where the diagnosis of the claimed injury by the doctors and experts is based upon subjective complaints, once it is established that the plaintiff has significant questions on his credibility, it will be an extremely difficult, if not impossible and meaningless task for the court to discuss the diagnosis because of the degree of speculation involved.  I recall the words used by research scientists which may aptly apply in such situations, “Rubbish in, rubbish out.” In other words, if the accuracy of the “input data” is questionable, the “conclusion” drawn from such data must also be equally questionable.

42. The court is assisted by the case of Joan Carol Boivin v Wong Kin Yiu & Anor (unrep) HCPI 195/2000 where Suffiad J. stated that what was important was the condition of the plaintiff accepted by the court and not how his condition was termed medically: -

“This being the condition which I accept that the plaintiff is now in, it really does not matter whether it is called a depressive disorder ot an adjustment disorder with depressive mood. Nor does it matter whether her mental condition is termed mild (by Dr. Chung) or moderate (by Dr. Singer).”

43. What the court accept in the current case is that whatever mental condition that the plaintiff may have, if any, it has no significant effect on his earnings.

44. It follows that it does not matter what the experts termed this mental condition medically, I find that the effect of this on the plaintiff must be mild, if any.

45. In Hung Chor Chuen v Pang Koon Wai and others HCPI 294/2003, the award for PSLA for “pure” psychiatric damages in a case of PTSD was HK$250,000.

46. On the assumption that the 1^st plaintiff has actually suffered some mild mental condition, I would deduct the award in the Hung’s case by 80% and award HK$50,000 under this head of claim.

III.  PRE-TRIAL LOSS OF EARNINGS

47. I have stated at length above regarding how I find the 1^st plaintiff’s claimed “poor memory” not credible and how this shows that his has not suffered any demonstrable loss of earnings.

48. There are other supports for this finding.

49. Firstly, the 1^st plaintiff claimed that he was employed by the 2^nd plaintiff as a driver.

50. However, there was no evidence of any written contract, MPF contribution, employee’s insurance or employee’s compensation claim.

51. The 1st plaintiff claimed that there was an “oral” contract but he was rather vague about the terms regarding working hours and holidays etc.  His claimed monthly salary varied from HK$13,000 to HK$15,000 in various documents produced.

52. The only document produced by the 2^nd plaintiff purported to show this employment was a hand-written note which the 1^st plaintiff agreed was not contemporaneous and, of course, the 2^nd plaintiff did not attend court to verify it.

53. Secondly, for the 1^st plaintiff’s claim about his “logistic” business, he was exceptionally vague about the nature of this business.  He has owned a “Hyundai H1” which he at times called a “goods van” and at others, a “luxury 7-seater”.

54. However, from his evidence, it was obvious that the H1 was “spec-out” to be a luxury 7 seater and he admitted that he did not take out any car seats to convert it into a proper “goods van”.

55. He also said when he hired out the H1, he was the only one to drive it.

56. Besides this, the 1^st plaintiff did not elaborate in any great details about any other alleged “logistics” business (when he claimed that he needed not drive but just to “arrange”) and how he got paid except that client wired the cash directly into his bank account, which he claimed that he did not check and (because “the payments were highly variable” and “he had poor memory” etc.) could not account for them in the bank records.

57. This alleged “side business” also contradicted with the government psychiatrist’s report that the 1^st plaintiff “had no plan to resume work as he felt he was unable to drive and could not think of what other jobs he could do.”

58. I do not accept that the 1^st plaintiff has any other job or business other than being a hired driver at the relevant time.

59. I find it entirely possible that the 1^st plaintiff has worked as a hired driver for the 2^nd plaintiff on a “on hire” hourly basis (but was asked to drive the 2^nd plaintiff’s car instead of the H1 before the accident) and he continued to be hired as a driver driving his own “goods van” / “luxury 7 seater” for passengers after the current accident.  As such, I can only speculate that the 1^st plaintiff has wished to claim that his H1 was a “goods van” in a “logistics business” just to bypass any problems with regulations and insurance cover etc. regarding hiring out driven cars for passengers.

60. In any case, such “possibilities” does not concern the current case, and whatever business and whichever way the 1^st plaintiff has been running it, I find that he has suffered no significant loss of income caused by the alleged psychiatric injury.

IV.  LOSS OF EARNING CAPACITY

61. Accordingly, I would not award any loss of earning capacity.

V.  FUTURE LOSS OF EARNINGS

62. There is also no award for future loss of earnings.

VI.  FUTURE MEDICAL EXPENSES

63. As the court find that the 1^st plaintiff has not actually suffered any serious condition, there is no award under this.

VII.  SPECIAL DAMAGES

64. The plaintiff is claiming medical expenses of HK$11,080, travelling expenses of HK$1,000 and car repair costs for his own car for the second road traffic accident of HK$6,600.

65. Despite the findings above, I will give the 1^st plaintiff the benefit of the doubt that he has some mild mental condition and so I will award HK$11,080 as his medical expenses and HK$1,000 as travelling expenses.

66. However, I will not award the costs of repair for his car. I am not convinced that this accident was caused by any mental condition that he has.

VIII.  SUMMARY

67. I summarise the above awards as follows:

HK$
PSLA	50,000
Pre-trial loss of earnings and MPF	0
Post-trial loss of earnings	0
Loss of earning capacity	0
Future medical expenses	0
Special damages	12,080
Subtotal (excluding interest)	62,080
Total:	62,080
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IX.  INTEREST

68. I would award interest on general damages at 2% per annum from date of writ to date of Judgment, and on special damages from date of accident to date of Judgment at half Judgment rate.

X.  COSTS

69. I would also give an order nisi for the costs of the action to be paid by the defendant to the 1^st plaintiff to be taxed if not agreed in the District Court scale and the 1^st plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.