WONG MAN LUNG JOEY v. LIU TSZ MING

HCPI 135/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 135 OF 2012

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages hearing pursuant to the interlocutory judgment on liability which was entered, by consent, on 5 April 2012 against the defendant in favour of the plaintiff for the accident happened on 5 April 2009 with damages to be assessed.

2.  The plaintiff was born in Hong Kong on 20 February 1976, now aged 39.  He was educated up to Form 4 level and was working for Union Tourist Rental Car Limited as tourist bus driver from 9 January 2009 up to the time of the accident.

3.  As a tourist coach driver, he was mainly responsible for receiving and carrying tourists.  The driving job required working with prolonged sitting posture and steering wheel control with upper limbs.  He was required to drive for 8 to 10 hours per day to take tourists from Hong Kong to China and vice versa and to drive continuously for 3 hours crossing the border between Hong Kong and China.  He was also required to wash the tourist coach and to move the tourists’ luggage onto the tourist coach.  On average, each luggage would weigh 10 to 20 kilogram and the weightiest luggage would be 25 to 27 kilogram.

4.  On 5 April 2009, the plaintiff met with a motor accident whilst he was driving a 49-seat tourist coach along the fast lane of Jockey Club Road, Sheung Shui towards the direction of Man Kam To.  The accident was caused by the defendant suddenly swerving his private car into the fast lane of Jockey Club Road along which the plaintiff’s tourist coach was travelling.  As a result, the plaintiff sustained injuries and was ambulanced to North District Hospital (“NDH”) for treatment.

INJURIES AND TREATMENT

5.  The plaintiff attended the A&E Department of NDH at 17:08 hours on 5 April 2009.  He was suffering from the symptoms of chest and back injuries.  Upon examination, his general condition was satisfactory, but there was tenderness over the chest and back.  X-rays taken of him were normal.  The provisional diagnosis was chest injury and analgesic drugs were prescribed.  He was discharged at 17:50 hours on the same day.

6.  On 10 April 2009, he attended the A&E Department of Alice Ho Miu Ling Nethersole Hospital (“NH”) complaining of right shoulder and low back pain.  On physical examination, he was diagnosed as suffering from joint pain in right shoulder and was treated and discharged on the same day.  On diver dates from 14 April to 16 May 2009, he had attended the A&E Department of NH and apart from right and left shoulder pain etc, he started to complain of the neck pain.

7.  The plaintiff has received 2 courses of physiotherapy at NH.  The 1^st course of physiotherapy started on 17 April 2009 and lasted until 28 October 2009.  He complained of neck pain, right shoulder pain and right arm numbness and had attended 33 sessions of physiotherapy during the 1^st course of physiotherapy treatments.  He was discharged from the 1^st course of physiotherapy with home exercise and care on 3 December 2009.

8.  On 22 May 2009, he first attended the out-patient clinic of the Department of Orthopaedics & Traumatology of NH.  He presented with persistent neck stiffness and pain on rotation associated with right upper limb pain and weakness.  Examinations showed decreased neck rotation to the left, right upper limb weakness with muscle power grade 4+/5 in all myotomes, and right C5 dermatome decrease light touch sensation.

9.  The plaintiff was referred to the Occupational Therapy Department of NH for work capacity evaluation and work hardening program.  Initial assessment was conducted on 12 October 2009 and showed that his work capacity did not match up with his pre-accident job demands.  He therefore underwent work hardening program from 16 October 2009 to 4 December 2009.  During the work hardening program, he still complained of right shoulder and neck pain.  On 4 December 2009, he was assessed by the work capacity re-evaluation to be unable to perform demand in his previous work. 

10.  On 5 December 2009, MRI of the cervical spine was performed showing desiccation of C5/6, C6/7 discs with right posterolateral protrusion probably causing impingement on the right C6 nerve root, no significant cervical cord compression.

11.  The plaintiff started his 2^nd course of physiotherapy on 22 January 2010 and finished on 26 May 2010.  During the 2^nd course of physiotherapy, he had attended 18 sessions of physiotherapy treatment. 

12.  On 12 March 2010, he first attended the pain clinic of the Department of Anaesthesiology & Operating Services of NH on referral of the O&T Department of NH.  During his assessment in the pain clinic, he complained of neck and shoulder pain associated with numbness.  His sleep, temper and mood were affected.  He was referred to Clinical Psychologist for mood support.

13.  On 22 April 2010, he was followed up in the pain clinic.  Physical examination showed tender spots over bilateral Trapezius area.  On 29 April 2010, trigger point injection was performed.

14.  On 7 June 2010, he was referred from the pain clinic to the psychiatric outpatient clinic in NH due to depressed mood precipitated by an injury in the accident.  He complained of insomnia, reduced concentration and motivation, negative ruminations and social withdrawal.  He was diagnosed to suffer from depressive disorder and antidepressant medication was prescribed.  He attended psychiatric follow-up regularly.

15.  On 21 June 2010, he was last seen in the psychiatric outpatient clinic at NH.  Despite clinical improvement, he still experienced residual depressive symptoms including low mood and insomnia.  Continuous psychiatric treatment was required to optimize control of his mood disorder.

16.  By Form 1 dated 16 July 2010, the plaintiff was certified by Dr Sieh as permanently unfit for his pre-accident driving job because of neck pain and stiffness with right upper limb weakness.

17.  On 23 May 2011, he was seen by Dr Grace Leung of the Department of Psychiatry of NH.  He had reported lowish mood, poor sleep and occasional vague and unclear non-existing voices and shadows.  He also complained of distress about the accident and the lingering on of compensation issues.  When he was seen by Dr Grace Leung on 30 April 2012, he was not overtly depressed. He still reported poor sleep, occasionally hearing non-existing noise of soft and vague chatting and mechanical sound “to do” and seeing shadows.  Mirtazapine 45 mg, Quetiapiine 100 mg and Diazepam 5 mg were prescribed.  He was diagnosed as suffering from dysthymia, with persistent symptoms like lowish mood and insomnia, possibly in relation to the accident and compensation issues.

18.  On 28 April 2014, he was last seen by Dr Grace Leung.  He reported good treatment compliance, a fair sleep and normal appetite.  He could cope as a security guard and remained interpersonally distant from wife and colleagues.  He reported vague auditory hallucinations as noisy background.  He denied visual hallucinations, paranoid idea and suicide idea.  He was given Mirtazapine 45mg bedtime, Quetiapine 300mg nocte, Clonazepam 1mg nocte and 0.5mg bedtime if necessary, Alprazolam 0.25mg BD if necessary.  Dr Grace Leung opined that the plaintiff was suffering from mild to moderate depressive episode in relation to the accident and the subsequent on-going stress of managing the compensation. 

19.  The plaintiff was granted sick leave from 5 April 2009 to 6 April 2009, from 10 April 2009 to 13 April 2009 and from 15 April 2009 to 16 November 2011.

JOINT ORTHOPAEDIC REPORTS

20.  Dr Lee Po Chin (“Dr Lee”) for the defendant and Dr Peter Tio (“Dr Tio”) for the plaintiff have compiled a Joint Medical Report dated 8 December 2011 and a Joint Supplementary Medical Report dated 15 September 2012.  Dr Lee and Dr Tio examined the plaintiff on 18 October 2011. 

21.  According to the Joint Medical Report dated 8 December 2011, x-ray taken of the plaintiff’s cervical spine on the day of examination showed slight decrease in the normal lordosis and x-ray of his lumbar spine showed slight scoliosis.

22.  Dr Tio and Dr Lee agreed that:

(a) the plaintiff was diagnosed as suffering from (i) chest injury, (ii) neck sprain, and (iii) back pain;

(b) the mechanism of injury the plaintiff described could produce a soft tissue sprain to the neck, back and chest;

(c) the chest injury should have been subsided;

(d) there was no medical explanation of his right upper limb numbness and weakness as there was no nerve compression shown in the MRI report, lack of muscle wasting and lack of abnormality in the reflexes of his right upper limb;

(e) the desiccation was feature of degeneration and it was likely to have existed before the accident and might not be related to the accident as protruded disc might not be symptomatic;

(f) the treatment the plaintiff received was appropriate;

(g) on the agreed examination findings, i.e. midline tenderness in the whole cervical spine, tenderness at paraspinal muscles and trapezius, limited neck movements, generalized weakness of the right upper limb, measurement of arm girth and forearm girth showed that the right side was greater than the left, 30-40% decreased sensation of the C5 dermatome;

(h) the plaintiff’s condition had reached the stage of maximum medical improvement and further treatment was not useful.

23.  Dr Lee was of the following views: -

(a) If neck symptoms occurred 9 days after the accident, it was unlikely to be due to the accident.  As to his low back, it was likely that the back pain after the accident was a transient exacerbation.

(b) The objective findings at the joint examination were not consistent with severe residual pain in the neck, weakness in the right upper limb, decreased sensation, muscle weakness and residual low back pain.

(c) As to employability, the plaintiff should have no problem in returning to work as a tourist coach driver and there would be slight impairment in work efficiency if he had to lift weight in the course of employment.

(d) The plaintiff was assessed to have suffered 2% whole person permanent impairment and 2% loss of earning capacity due to his current neck symptoms.

(e) Sick leave for recovery of a sprain neck injury should be less than 6 months.

(f) Psychiatric evaluation, though helpful in the overall management of the plaintiff, might not be relevant to the injury.

24.  Dr Tio however was of the following views: -

(a) It was not uncommon for patients to notice all the injuries within the first 1-2 weeks after an accident.  With a compatible mechanism, the neck pain of the plaintiff could have been caused by the accident.  The plaintiff was still having on-and-off back pain in the recent half a year signifying that the back pain had not yet recovered.

(b) Since soft tissue injuries mainly presented with on-and-off pain, so it was not impossible for him to have fluctuating signs from time to time.  The absence of significant physical signs during the examination could not rule out that he was still having significant pain over his neck and back as the plaintiff described.  It was not uncommon for patients to have subjective feelings (ie right upper limb numbness and weakness) in the presence of neck pain especially if it was accompanied by psychiatric components.

(c) As to employability, it was quite unlikely that the plaintiff would be able to resume the duty as a tourist bus driver who was responsible for many lives.  He was however considered to be fit for other less demanding duty such as security guard, convenience store keeper or petrol station attendant, etc.

(d) The plaintiff was assessed to have suffered 5% whole person permanent impairment and 5% loss of earning capacity due to his neck and back.

(e) The sick leave provided was justifiable and further sick leave might arise from his psychiatric illness so it would be better for the plaintiff to be assessed by a qualified psychiatrist.

(f) An assessment by a psychiatrist would be useful.

JOINT PSYCHIATRIC REPORTS

25.  Dr Benjamin Lai (“Dr Lai”) for the plaintiff and Dr Peter Ho (“Dr Ho”) for the defendant first examined the plaintiff on 26 March 2012 for the Joint Psychiatric Report and then on 20 May 2014 for the Supplemental Joint Psychiatric Report.

26.  Both Dr Lai and Dr Ho agreed the following: -

(a) The plaintiff had suffered from an adjustment disorder with depressed mood according to the DSM-IV diagnostic criteria.  It was compatible that the adjustment disorder was caused by the accident.

(b) On the whole, he was functioning in the normal range of cognitive functioning and there was no limitation of his daily activities.

(c) He was suffering and would suffer from mild/minor residual psychiatric symptoms and his adjustment disorder had a favourable prognosis.

(d) He could continue his psychiatric treatment in the public psychiatric clinic and seemingly for a period of 1 to 2 years from the time of assessment at an average interval of once in four weeks.  While the cost of a session of psychiatric treatment in the public clinic was within $200, the average cost of a session of psychiatric treatment in the private sector with 4-week supply of medicine was about $2,000.

27.  Dr Ho took the following views: -

(a) The plaintiff had been suffering from some genuine mental symptom although any possibility of him trying to exaggerate his mental sufferings to some degree could not entirely be excluded.

(b) The plaintiff might still have some very mild mental symptoms.  His condition would likely have recovered if not for the stresses related to the present litigation.  If not for the stresses related to the litigation, he might not need psychiatric medications or at most a very low dosage of psychiatric medications would be sufficient.

(c) The authenticity of the plaintiff’s hallucinatory experiences was doubtful.  It was unlikely that his hallucinatory experiences were related to depressed mood.

(d) The plaintiff’s rating of the intensity of his depression and irritability was on the high side and seemingly not consistent with his mental condition as reported by his treating psychiatric doctors.

(e) There could be some doubts whether he has actually been taking the medications on a regular basis.

(f) During the interview, the plaintiff’s attention and concentration was not notably impaired.

(g) From a psychiatric viewpoint, the permanent impairment of whole person was estimated to be in the mild range and so was the loss of earning capacity.  Therefore, the impairment to the plaintiff as a whole person was assessed to be about 3-4% and the loss of earning capacity also at 3-4%. At the 2^nd examination, the plaintiff reported some improvement of his mental symptoms and the impairment to him as a whole person was assessed to be about 2% and the loss of earning capacity also at 2%.

(h) From the psychiatric perspective, the plaintiff was considered capable of returning to his previous work.  The degree of impairment of his efficiency and tolerance was mild.  His safety and the safety of others were a cause for concern when he drove on the road.  He could not be considered mentally unfit to drive simply because he had been taking psychiatric medications but without particular indications that he had been constantly suffering from significant impairment of concentration or cognitive functioning or other side effects.

(i) From a psychiatric perspective, a sick leave of around 3 to 4 months would be appropriate during the more intense phase of his psychiatric condition.

28.  Dr Lai however was of the following views: -

(a) There was no gross evidence of exaggeration for his psychiatric condition.  A person with depressed mood, anxiety and/or anger could have increased sensitivity to the sensation of pain caused by an underlying physical pathology.  It was compatible that the plaintiff’s psychiatric condition had accentuated his sensation of pain and contributed to some degree of his pain symptoms when he was worse in his psychiatric condition.

(b) The plaintiff was not fit to return to work until the dosage of his medicine was reduced and there were minimal side effects affecting him.  He was mentally fit to return to other employment appropriate to his physical abilities and without the need to operate fast moving machines.  His work efficiency and tolerance were likely adversely affected by his psychiatric symptoms to a mild degree.

(c) Based on his psychiatric condition, the plaintiff’s permanent disability was in the mild range.  It was estimated that the permanent impairment of the whole person was about 3 to 5% and the loss of earning capacity also about 3 to 5%.

(d) It was appropriate that the plaintiff required sick leave since his first psychiatric consultation up to the joint examination on 26 March 2012 and another 3 months of sick leave to cover the initial period when his psychiatric medicine was reduced.  At the present stage, further sick leave was not required since the plaintiff has returned to regular work.

DISCUSSION

Assessing the plaintiff’s credibility

29.  Mr Chan, Counsel for the defendant, submitted this was a clear case of exaggeration and malingering and that the plaintiff has been demonstrated to be a liar when he was cross-examined in court.  To start with, I think that it is necessary for me to assess his credibility first. After hearing his oral evidence in court, I have no doubt to find that at least he was not telling the truth in giving the following evidence:

(a) His evidence relating to his marriage on 25 May 2012 and the booking of the wedding banquet a year before clearly shows that he lied to Dr Lai and Dr Ho during the joint psychiatric examination on 26 March 2012 when he told them that his relationship with his girlfriend had deteriorated and he had no actual plan of marriage.

(b) Under cross-examination, he said his previous back injury was not a work-related injury.  This is directly contradictory to what he was recorded to have told the orthopaedic experts.  In the joint orthopaedic report, the plaintiff was recorded to have told the experts that his previous back injury was work-related.

(c) Under cross-examination, he said that he suffered neck pain during the accident as the neck was hurt by the seat-belt that he was wearing.  He further said that he had told the doctors when he attended the accident and emergency department for treatment.  In page 3 of the Joint Medical Report, it was recorded that he noticed pain in the neck and the chest after the accident.  Yet the hospital medical reports only show that there was complaint of chest and back pain on the day of accident.  There was no complaint of neck pain on that day or his subsequent attendances at the hospital until 9 days later ie 14 April 2009.

30.  It is also noteworthy that Dr Ho said in para 37 of the Joint Psychiatric Report as follows:

“During the present interview he (the plaintiff) was rather impatient and tended to be evasive when answering some questions……

He was not co-operative when asked to perform the cognitive tests although he could still come up with some correct answers.” (emphasis added)

31.  Even Dr Lai also commented in the same report that:

“Current mental state examination shows that he is often impatient, evasive and reluctant to elaborate on many of his answers, and is irritable…….” (emphasis added)

32.  I totally agree with the comments by both experts that even during the cross-examination by the defendant’s Counsel, the plaintiff was very evasive and reluctant to answer the questions put to him.  Based on the aforesaid and further upon observing his demeanour in giving oral evidence, I find that the plaintiff is not a reliable and credible witness as a whole.

Findings on the plaintiff’s orthopaedic condition

33.  Immediately after the accident, the plaintiff complained of chest and back injuries.  Subsequently, he also complained of neck and shoulder problems and developed psychiatric and psychological problems.  He has not received any operation.  Nor has there been any lengthy period of hospitalisation.  Both orthopaedic experts agree that the mechanism of injury described by the plaintiff could produce a soft tissue sprain to the neck, back and chest.

34.  The plaintiff’s major complaint relates to his neck pain and numbness and weakness of his right upper limb.  He only started to complain of neck problems about 9 days after the accident.  Dr Lee was of the opinion that if the neck symptoms only occurred about 9 days after the accident, it was unlikely to be caused by the accident. On the other hand, Dr Tio opined that it was not uncommon for patients to notice all the injuries within the first 1 to 2 weeks after an accident.  In this regard, I think that I also need to consider the plaintiff’s own evidence as to how his neck injury was caused.  As discussed in para 29(c) above, I do not believe that when the plaintiff attended the accident and emergency department for treatment, he had informed the doctors of his neck injury which was alleged by him to be hurt by the seat-belt; otherwise, his neck injury must be recorded in the hospital notes.  His evidence concerning causation of his neck injury must be rejected.  I have no doubt to prefer Dr Lee’s opinion and do not accept that his neck injury was caused by the accident.

35.  As regard the plaintiff’s right shoulder problems, Dr Lee did not specifically say that it was unlikely to be caused by the accident.  Thus, I accept that it was caused by the accident.

36.  As to the seriousness of his right shoulder problems,  Dr Tio and Dr Lee agreed that there is no evidence of significant compression of the neurological structures as reported in the MRI findings and that there was no medical explanation of the plaintiff’s right upper limb numbness and weakness as there was no nerve compression shown in the MRI report, lack of muscle wasting and lack of abnormality in the reflexes of his right upper limb.

37.  Further, both experts were of the opinion that the plaintiff’s condition has reached the stage of maximum medical improvement.  I therefore find that his right upper limb symptoms were not as serious as he claims.

38.  As to the plaintiff’s low back condition, the hospital medical reports showed that he did complain of back pain after the accident on 5 April 2009.  However, after 14 April 2009, there was no longer any complaint of back pain.  Instead, he mainly complained of neck and shoulder problems on and after 14 April 2009.

39.  It was recorded in the joint orthopaedic report dated 8 December 2011 that the plaintiff told the experts at the joint examination that he had low back pain about 10 years ago which was a work-related injury.  Dr Lee’s assessment of permanent impairment in respect of his low back condition was 0% whereas Dr Tio’s assessment of whole person impairment for the back was only 2%.

40.  Dr Lee opined that the plaintiff did not have any significant residual back pain on the basis that there was no objective findings that supported significant residual back pain.  I think that Dr Tio’s opinion in this connection was based mainly on the plaintiff’s own subjective complaint of back pain.  In the circumstances, I prefer Dr Lee’s opinion to that of Dr Tio and conclude that the plaintiff’s low back injury was only a transient exacerbation leaving him no significant residual pain.

41.  For the plaintiff’s chest injury, the joint view of the experts was that it had subsided without leaving residual symptoms. Hence, it was a very minor injury.

42.  As to the issue of employability, Dr Tio opined that since the plaintiff was still having right upper limb weakness and numbness, neck and back pain together with the presence of psychiatric illness which requires the consumption of psychiatric medications, it is quite unlikely that he will be able to resume the duty as a tour bus driver who is responsible for many lives.  Dr Lee was of the view that the plaintiff should have no problem in returning to work as a tourist coach driver and there would be slight impairment in work efficiency if he had to lift weight in the course of employment. 

43.  Mr Ng for the plaintiff submitted that Dr Lee’s view is tantamount to an opinion that it would be difficult for the plaintiff to return to work as a tourist coach driver and that he should not be able to return to the full duties of his pre-accident driving job.  Mr Ng relied on Khan Amar v Cheung Ying Construction Engineering & Another[1], in which the agreed medical report suggested that the plaintiff should be able to return to his pre-accident job as a construction site worker but with reduced efficiency at work or alternatively, the plaintiff could elect to work on other light to moderate manual work such as security guard.  The trial judge held that it would be difficult for the plaintiff to return to work on a construction site and this holding was upheld on appeal.

44.  I think that I have to deal with the experts’ opinion relating to the issue of employability very carefully because it appears to me that both experts had taken into account of the plaintiff’s neck injury which I have already found not caused by the accident.  Hence, I have to assess this issue afresh based on my findings of the plaintiff’s right upper limb numbness and weakness, low back injury and chest injury but not his neck injury.  Therefore, the Khan Amar case cited by Mr Ng is distinguished. 

45.  Furthermore, I am of the view that the expert opinion in the Khan Amar case was a qualified one[2]. In the present case, Dr Lee took the view that there would be slight impairment in work efficiency if the plaintiff had to lift weight in the course of employment.  That is quite different from the expert’s opinion in the Khan Amar case that the plaintiff’s work efficiency would be reduced.

46.  Since I find that all the injuries and symptoms suffered by the plaintiff are very minor, I consider that orthopaedically, the plaintiff should be able to return to work as a tour bus driver.

Findings on the plaintiff’s psychiatric condition

47.  Regarding the plaintiff’s psychiatric problem, both psychiatric experts were of the opinion that his psychiatric symptoms are compatible with the diagnosis of adjustment disorder with depressed mood and that his permanent disability from a psychiatric perspective was in the mild range. Dr Lai assessed the plaintiff’s permanent impairment to be about 3 to 5%.  Dr Ho estimated the permanent impairment to be in the region of 3 to 4%.

48.  It is noteworthy that the plaintiff requested at the last hearing on 22 January 2014 for an adjournment of the hearing on the ground that he claimed his psychiatric condition had deteriorated and that instead of having his medications reduced, the hospital doctors had increased his psychiatric medications.   Therefore, the joint supplemental psychiatric report dated 28 July 2014 was obtained.  In this report, Dr Ho gave his opinion in detail relating to the plaintiff’s exaggeration of symptoms and disabilities.  In pages 16 and 17 of the Supplemental Joint Psychiatric Report, Dr Ho stated that:

“During the present interview he mentioned hearing vague voices and that he seemed to see some shadows flashing in front of his eyes but he failed to elaborate and became impatient and uncooperative when asked to do so. It is known that uncooperative could be a sign of malingering. The somewhat persistent hallucinatory experiences especially involving both auditory and visual modalities are not a common presentation for Adjustment disorder or Depressive disorder ……

…… I have significant doubt over the authenticity of his alleged hallucinatory experiences ……

…… any issue of exaggeration would definitely need to be considered.”

49.  Dr Ho also considered the question of possible side-effect of the psychiatric medications and concluded that there was no sign to suggest the impairment of the plaintiff’s concentration ability and that he could still be considered as capable of returning to his previous work or other suitable jobs. Dr Ho further doubted whether the plaintiff has actually been taking the medications on a regular basis.

50.  In my view, Dr Lai did not appear to have advanced any opinion to counter those of Dr Ho relating to the plaintiff’s exaggeration of his psychiatric symptoms and disabilities. Instead of giving his opinion on the actual effects of the psychiatric medications on the plaintiff, Dr Lai merely stated in general terms the usual side-effects of those medications.  It is not Dr Lai’s opinion that the plaintiff’s alertness, attention or concentration was in any way adversely affected by the drugs.  I also note from the joint supplemental psychiatric report that there was no record made by the experts of the plaintiff’s reduced attention, concentration or alertness during the interview lasted for 1 hour and 40 minutes.  The plaintiff did not specifically tell the experts that he could not drive due to the side-effect of the psychiatric medications. Indeed, in page 5 of the joint supplemental psychiatric report, it stated as follows:

“He said he has not been driving in the past few years. When asked of the reason for this he said if his pain or tremor in his limb could be relieved then he could drive again and return to his previous job”

51.  From the DVD surveillance evidence, I did not observe that the plaintiff was suffering from any reduced attention, concentration or alertness, while working as a night time security guard and playing TV games in the game centre.  I thus prefer Dr Ho’s opinion to that of Dr Lai.  I consider that the plaintiff has been exaggerating his symptoms and disabilities.  I find that his psychiatric impairment is in the mild range and that he shall be able to return to his pre-accident job as a tourist bus driver based on his psychiatric condition.

Discount for pre-existing degeneration

52.  It is not disputed by the plaintiff that the MRI findings of his desiccation of C5/6 and C6/7 discs is a feature of degeneration which is likely to have existed before the accident. Mr Chan for the defendant submitted that there should be a discount of no less than 30% on all awards of damages in the present case when the plaintiff’s pre-existing degeneration in his cervical spine is taken into consideration. He relied on Chan Kam Hoi v Dragages et Travaux Publics[3], in which a carpenter sustained injures to his back as a result of 2 accidents.  In fact, the carpenter had a pre-existing degenerative condition of the spine which had been symptomless before the accident.  The trial judge found that if the accident had not occurred, due to the pre-existing condition, the carpenter would have suffered deterioration in his back which was likely to have forced him to give up his pre-accident occupation by the age of 55.  On appeal, the Court of Appeal held that where a pre-existing condition was likely to lead to disability and loss and that in the absence of the injury, those risks were to be taken into account in reducing the amount of damages.  The Court of Appeal did not disturb the trial judge’s finding that the plaintiff’s damages for pain, suffering and loss of amenities and for pre-trial loss of earnings should be reduced by 45% on account of his pre-existing condition.

53.  Mr Chan for the defendant further relied on Wong Kin Kee v Ng Chi Lam[4], in which HH Judge Mimmie Chan (as she then was) considered the plaintiff’s claim of neck pain, the related medical evidence and held that there should be a one-third discount of the plaintiff’s overall condition when taking into account of his pre-existing degeneration.

54.  As said by HH Judge Mimmie Chan (as she then was) in the Wong Kin Kee case, each case must be decided on its own facts and evidence, bearing in mind the relevant legal principles on causation of damages and the court must adopt a common sense approach, assisted but not dictated by the medical opinion.

55.  In the present case, since I have found that the plaintiff’s neck injury was not caused by the accident, I therefore consider that it would be unfair for me to take into consideration of his pre-existing degeneration in his cervical spine.  Hence, I disagree that there should be any discount on the awards of damages.

PSLA

56.  In the Re-Revised Statement of Damages, the plaintiff claims a sum of $400,000 under this head and relies on the following cases: -

(a) Kwok Sui Shum Dorathy v Hui Lam Ho and Ors[5]:  The plaintiff, an accounts clerk, aged 37 at the time of the accident, the front seat passenger in a private car, suffered a whiplash injury as a result of a taxi driven by the 1^st defendant running into the back of the plaintiff’s vehicle. The plaintiff developed a mild psychiatric condition, ie anxiety and depressive problems after the accident.  PSLA was awarded at $240,000 after the court found that the plaintiff’s psychiatric condition was not wholly caused by the accident.  Were it otherwise, the court would have made an award of $400,000.

(b) Chan So Kwan v Mak Siu Kwan Victor & Ors[6]: The plaintiff, a bus captain, suffered a whiplash injury in a road traffic accident and complained of chest pain, headache, dizziness, neck pain with occasional spasm of neck muscle, limitation of neck movement and generalized anxiety disorder (the complaints were found not to be caused psychosomatically).  He was only capable of doing some light to sedentary jobs and could not resume her pre-accident job as a bus captain.  PSLA was awarded at $300,000.

57.  On the other hand, Mr Chan for the defendant relies on the following cases and submitted that the appropriate award shall be $200,000:

(a) Singh Inderjeet v Ho Chun Bong[7]: The plaintiff, a daytime construction worker and evening meal delivery worker, was injured in a traffic accident and hospitalised overnight.  He sustained injuries to his back, including a mild posterior L4/5 disc bulge, and soft tissue neck damage.  He was diagnosed post traumatic stress disorder (PTSD) and major depressive disorder (MDD), both due to the accident.  Minor aspects of his orthopaedic injuries persisted. $300,000 for pain, suffering and loss of amenities was awarded by the court.

(b) Wong Yan Lam v Lam Wing Kei[8]: The plaintiff suffered injuries in two separate traffic accidents. In the first accident, she sustained multiple contusions to her neck, right shoulder and low back, but she was probably making good progress by the time of the second accident, when she suffered a sprained neck and experienced right shoulder pain.  The orthopaedic experts agreed that her complaints of neck and shoulder pain were justified to some extent but could not explain her complaint of difficulty breathing as the chest appeared normal.  They considered that her injuries were simple soft tissue contusions of the neck and right shoulder. The psychiatrists agreed that she had post-traumatic stress disorder.  The court awarded $200,000 for pain, suffering and loss of amenities.

(c) Ho Shun Hang v Lau Hoi Wing and Another[9], the plaintiff, a tram driver, was driving a tram collided with a public light bus and suffered neck injury.  Subsequently, he also developed psychiatric illness.  At the trial, the plaintiff claimed that he was still on psychiatric sick leave.  The orthopaedic experts agreed that as a result of residual neck pain, the plaintiff suffered from occasional exacerbation and needed to take a rest.  Nevertheless, he should be able to return to work as a tram driver.  Psychiatrically, the plaintiff suffered symptoms of adjustment disorder.  The condition was said to be mild by the psychiatric experts.  The court made an award of damages for pain, suffering and loss of amenities in the sum of $200,000.

58.  In my view, the severity of the physical injuries and psychiatric impairment suffered by the plaintiff in this case is higher than those plaintiffs inthe cases of Wong Yan Lam and Ho Shun Hang but lower than those inKwok Sui Shum Dorathy, Chan So Kwan and Singh Inderjeet. Having been guided by the above authorities cited to me and further considered the inflation for the last 10 years[10], I award damages for PSLA in the present case in the sum of $280,000.

Sick Leave

59.  The plaintiff was granted sick leave by the hospital treating doctors from the date of accident up to 16 November 2011 ie about 31.4 months.  Thereafter, he was not granted any further sick leave.

60.  In the Joint Medical Report, Dr Lee said that the normal sick leave should be less than 6 months whilst Dr Tio opined that sick leave provided by the treating doctors was justifiable and further sick leave may arise from his psychiatric illness.

61.  In  the Joint Psychiatric Report, Dr Lai took the view that sick leave was required since the plaintiff’s first psychiatric consultation up to the joint examination ie 26 March 2012 and another 3 months of sick leave to cover the initial period when his psychiatric medicines are reduced. Dr Ho suggested in the same report that a sick leave of 3 to 4 months to be appropriate during the more intense phase of his psychiatric condition.

62.  In the Supplemental Joint Psychiatric Report, Dr Ho maintained the similar view on sick leave but Dr Lai said no further sick leave was required.

63.  It is well established that the court is not bound by the sick leave certificates issued by the hospital doctors as sick leave certificates would likely be issued on the basis of the patient’s subjective complaints to the doctors[11]. In the light of my findings on the plaintiff’s orthopaedic and psychiatric conditions, I think that the reasonable period of sick leave should only be 15 months.

64.  Apart from the sick leave, I consider that the plaintiff is entitled to have a buffer period for him to find alternative appropriate employment after sick leave since the plaintiff’s unchallenged evidence is that he had tried hard to find new jobs after sick leave[12].  I think additional 3 months are fair in the circumstances.

Pre-trial loss of earnings and MPF

65.  It is undisputed that the plaintiff’s pre-accident monthly salary was $13,220 in 2009.  As the inflation rate of 4% per annum is not challenged, I accept the plaintiff’s pre-accident monthly salary in 2010 to be $13,748.8.  Hence, his pre-trial loss of earnings inclusive of MPF is $253,189.44 (ie $13,220 X 12 months X 1.05 + $13,748.8 X 6 months X 1.05).

Future loss of earnings and MPF

66.  On the basis of the above findings, there should be no award for future loss of earnings in this case.

Loss of earning capacity

67.  Mr Ng for the plaintiff submitted that there is a real risk that by reason of his injuries caused by the accident, the plaintiff would suffer a handicap in the labour market or loss of income should he lose his present job and any appropriate job which he may manage to find in the future.  He initially claims a global sum of $72,000 (ie $6,000 x 12) but now claims $75,000.00 (ie $12,500.00 x 6) under this head.

68.  Mr Chan for the defendant submitted that the plaintiff may be awarded a sum of no more than $30,000.00 after discount for his pre-existing degeneration in the neck as damages for loss of earning capacity and referred me to Zahid Anwar v Graceful Sound Ltd & Others[13], in which Hon Bharwaney J dismissed the plaintiff claim for future loss of earnings saying that the plaintiff’s not returning to work in his pre-accident job was only a choice of his.  Nevertheless, the learned judge made an award in the sum of $200,000 as damages for loss of earning capacity to compensate the plaintiff’s inability to perform very heavy manual work. 

69.  I think Mr Chan’s submission of $30,000 cannot be accepted since I had already rejected any discount for the plaintiff’s pre-existing degeneration in the neck.  However, I consider that the present case is different from Zahid Anwar as there is no medical opinion to suggest that the plaintiff would have significant impairment in work efficiency. I think that the appropriate award for loss of earning capacity in this case should be $60,000.

Other special damages

70.  The plaintiff’s claim for $11,560 as medical expenses is agreed by the defendant.

71.  The plaintiff’s claim for travelling expenses is $2,569 which covered the taxi or minibus fare between the hospitals and home for about 4 years period.  The defendant only agreed to the extent of $1,000.  I consider that 4 years period is excessive and award $2,000 for these expenses.

72.  The plaintiff’s claim for tonic food is $5,000 but the defendant only agrees a sum of $2,000.  I award $3,000 for these expenses.  The total amount of these miscellaneous special damages awarded is $16,560.

Future medical expenses

73.  The parties agreed the plaintiff’s revised claim for $1,200 as future medical expenses.

SUMMARY

74.  It is common ground that the plaintiff will have to give credit for the amount of employees’ compensation already received by him in the sum of $652,385.

75.  In light of the above, I come to the conclusion as follows: -

Item	Description	Amount(HK$)
(i)	PSLA	280,000
(ii)	Pre-trial loss of earnings (including MPF)	253,189.44
(iii)	Future loss of earnings (including MPF)	nil
(iv)	Loss of earning capacity	60,000
(v)	Future medical expenses	1,200
(vi)	Other special damages	16,560
	Total	610,949.44

76.  I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgment.  I also award interest on pre-trial loss of earnings and MPF benefits and other special damages at the rate of 4% per annum from the date of the accident (ie 5 April 2009) to the date of payment of employees’ compensation and, thereafter, if any, at the same rate up to date of judgment on any remaining balance of such damages after the deduction of the amount of employees’ compensation from those damages[14]. 

77.  As I note that the total sum awarded by me (excluding the interest awarded) is smaller than the amount of employees’ compensation already received by the plaintiff, I make an order nisi that costs of this assessment of damages be to the defendant, to be taxed if not agreed and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations, which shall become absolute unless any of the parties apply to vary by way of summons within 14 days.

78.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.