CHAIR SAI SUI v. INTERNATIONAL COUNTRY CLUB LTD. AND ANOTEHR

1998 PI No.522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION 522 of 1998

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ASSESSMENT OF DAMAGES

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1. On 20th May 1995, the plaintiff then aged 42, was injured in a riding accident. He fell off his horse and landed on his buttocks, fracturing his 2nd lumbar vertebra, the "L2".

2. Judgment in default of defence was entered against the 1st and the 2nd defendants on 26th November 1998. On 28th May 1999 the Registrar gave leave to set this case down for an assessment of damages.

3. After the accident the plaintiff was first taken to the Pok Oi Hospital. Initial X-rays indicated a fractured L2, and he was transferred to the Prince of Wales Hospital where he was treated conservatively with physiotherapy, medication and a lumbar brace. The plaintiff stayed at the Prince of Wales Hospital for the next 5 days undergoing treatment. He was advised about bed rest.

4. On 25.5.95. he was transferred to the Cheshire Home for convalescence and rehabilitation. He was able to move about with a pair of crutches at this time. The plaintiff was apparently unhappy with conditions at the Cheshire Home. He discharged himself. Upon his discharge on 27.5.95. he was referred to the Li Ka Shing Specialist Clinic for out-patient follow-up treatment. According to the report by Dr YL Lee of the Prince of Wales Hospital the plaintiff only turned up for treatment once for treatment at the Li Ka Shing Specialist Clinic. After that he defaulted on follow up. Since 27.6.95. the Specialist Clinic has no further evaluation on the status of the plaintiff's fracture and whether he is suffering from any residual symptoms.

5. The plaintiff is a director of 2 companies, Full Best Investment Ltd and Sunny Smile Investment Ltd. These companies operated a pub cum karaoke lounge and a Japanese restaurant respectively. The plaintiff was the manager of these establishments. He was paid a basic salary of $10,000 and an 'on-duty' director's allowance of about $40,000 a month by Full Best for his work in the pub, and an 'on-duty' director's allowance of $10,000 by Sunny Smile for his work in the Japanese restaurant. At the time of the accident his income averaged $60,000 a month. At present his average income remains at about $60,000.

6. The plaintiff was given sick leave from 21.5.95 to 10.10.95. The plaintiff told Dr Julian Chang that he used the crutches for one month after the accident and after 5 or 6 months, he "could be quite independent with ambulation".

7. PW2 Mr Pun Wai Ho who is the General Manager of the pub and Manager of the restaurant gave evidence. He said that the plaintiff was not paid any salary at all by either establishment for the 5 months from June to October 1995 when he was on sick leave.

8. The plaintiff returned to work on 11.10.95. He found that he was unable to work as before. Prior to the accident he worked from 3pm to 3 am, dividing his time between the two establishments. After the accident, he found that he would feel tired after only an hour at work. He felt unable to fulfill the demands of his job by entertaining the karaoke customers of the pub and drinking with them. He experienced back pain even wearing a back brace all the time and working reduced hours. Because of his inability to work to full capacity, the plaintiff was paid only $20,000 per month by the pub and $5000 by the restaurant for the months of November, December 1995 and January 1996.

9. On 9.1.96 he went on sick leave again. The sick leave certificate covers the period from 9.1.96 to 2.4.96. Despite the fact that the sick leave period ended at the beginning of April, PW2 says the plaintiff was not paid any salary at all by the pub or the restaurant for the months of February, March and April 1996. The plaintiff returned to work after April 1996 and from the figures referred to by PW2, he was paid by both establishments in the same manner as before the accident.

10. The plaintiff relies on the medical report of Dr Chang in support of his claim for damages. The relevant parts of Dr Julian Chang's report states that : "on examination, he walks into the clinic without any difficulty. On standing, there is a well balanced shoulder and pelvis level. The spine shows no tilting. There is no palpable muscle spasm on the day when I examined him. There is a mild prominence of the L2/3 spinous processes which is tender. Range of movement of the spine shows full flexion and extension but there is pain on extension of the lumbar spine and also left lateral flexion. In the supine position, the leg lengths are equal at 90 cms. The thigh girths measured 10 cms. above the superior pole of the patellae are equal at 47 cms. the maximum calf girths again are equal at 37 cms. There is diminished sensation to pinprich (sic) from T4 to L3 level on the right hand side which could not be explained on the basis of the current injury. The lower extremity reflexes are all normal. There are no motor deficits in both lower extremities. Reflexes are all normal with no evidence of ankle clonus. Babinski sign is plantar. Hip, knee, foot and ankle examinations are all normal.

X-ray of the lumbar spine shows a well healed superior plate fracture of L2 vertebra with bridging callus. There is no evidence of impairment of the posterior facet joint nor the adjacent intervertebral disc at T12/L1 or L2 and 3. The kyphotic angle as a result of this injury is 10°. X-ray of the thoracic spine shows no abnormality."

11. Dr Chang was not called to give evidence therefore his report has to be considered with extra care. It can be noted that the majority of the findings were normal: the plaintiff had full range of movement of the spine; the lower extremity reflexes were all normal; there were no motor deficits in either of the lower extremities; no evidence of impairment of the posterior facet joint; no evidence of impairment of the adjacent vertebral discs at T12/L1, nor at L1/L2, nor at L2/L3; X-ray of the thoracic spine showed no abnormality; there was no evidence of neurological deficit as a result of the spinal injury; and all the leg measurements were equal for both sides.

12. Dr Chang noted that the plaintiff complained of pain when bending to the left and complained of pain on extension of his lumbar spine. There was a finding that the L2 vertebra had lost 40% of its height due to the com-pression fracture. In addition, Dr Chang found an abnormality in the kyphotic angle, a 10° outward curvature of the spine. Despite that finding the doctor stated that the X-ray of the plaintiff's spine showed no ab-normality.

13. Even on a careful reading of Dr Chang's report, I could not find the doctor giving any reason for the low back pain constantly suffered by the plaintiff. It appears that the fracture had healed well, and there was nothing pressing on the nerves. The plaintiff says that he suffers episodic pain due to muscle spasm near the injury site, but on the day that the plaintiff was examined, Dr Chang could find no evidence of muscle spasm. It is curious that Dr Chang found no palpable muscle spasm on the day of examination. Now "palpable" merely means capable of being touched, felt or handled. The plaintiff is claiming a sum of over $52,000 for 88 visits to the bonesetter. He says that the bonesetter's manipulations had helped ease the muscle spasm that often caused him so much pain. I found it odd that on a careful physical examination Dr Chang could find no evidence at all of the condition that the plaintiff says that he was frequently and severely plagued with.

14. Dr Chang also noted that the plaintiff reported a diminished sensation from being pricked by a pin on the right side of the spine at T4 to L3 level, a reaction which (in his words) "could not be explained on the basis of the current injury". Dr Chang reported that "there is no evidence of neurological deficit as a result of this injury but there is a concomitant diminished sensation to pinprick from T4 to L3 on the right hand side which could not be accounted for by the mechanism of the injury of the spine." Why would a well healed fracture at the L2 level cause a reaction at T4 to L3 level? Since the plaintiff elected not to call Dr Chang despite an indication from the court, the court is therefore left to deal with this evidence as best as it can in the circumstances.

15. The plaintiff did not go into detail about his stay at the Cheshire Home but in his report, Dr Chang says that the plaintiff discharged himself from the Cheshire Home because he was "unhappy with the local condition".

16. The plaintiff told the court that after 3 visits he did not go back to the Li Ka Shing Specialist Clinic for further treatment because on each of the previous occasions he had been there, he was merely told that his injury would need time to heal. The plaintiff said that he was in pain, but all he received by way of treatment at the Li Ka Shing Clinic was the prescription of ointment and painkillers, and given the advice of undergoing more physiotherapy. He felt unable to wait for hours on each visit just to receive more of the same. On the subject of treatment at the Li Ka Shing Specialist Clinic, according to Dr Lee's report at page 112 of the Bundle, he alleges that the plaintiff defaulted after only one treatment. The plaintiff says he went there 3 times.

17. The plaintiff told the court that he found Western medicine "slow to show improvement". He followed his friend's advice and consulted a bonesetter Mr Man See. He found that after spinal manipulation by the bonesetter, the tension in his back was eased and he could sleep at night. After treatment by the bonesetter, the effect would last for more than one day.

18. I noted that the complaints and severe bouts of pain described by the plaintiff do not seem to be consistent with what he told Dr Chang both in severity and or in frequency. The doctor reported that the plaintiff had said "he is having stiffness and pain of his back whenever he stands for more than 45 minutes or sits for more than 2 hours, also after exercises he complains of the same stiffness in the mid back region. As a result he has given up on a lot of recreational hobbies such as horseback riding and running. The only form of physical activity he feels comfortable with is swimming. As a result of this back discomfort, his sexual function has also diminished." From this passage in the report it appears that if the plaintiff had said that if he is not required to stand or to sit still for long periods, he would not suffer back pain. In addition Dr Chang reports that the plaintiff had complained that "stiffness in the mid back region" would result after any form of physical activity, including sexual relations.

19. Dr Chang's report does not give any specific reasons why the plaintiff's sex life would be effected by the injury. Dr Chang did not say that engaging in sexual activity would cause the plaintiff to suffer back pain, only discomfort. The word "pain" is conspicuous by its absence in the context of exercise. According to the medical report the fracture has healed well, so there should be no reason why the plaintiff cannot return to physical exercise. Dr Chang merely reported that the plaintiff said that physical exercise caused him to experience "stiffness in the mid back region". Stiffness cannot be equated to pain. A medical practitioner with the qualifications of Dr Chang would not write down "stiffness" if the plaintiff had said he suffered "pain". I am satisfied that the report accurately reflected what the plaintiff had said to Dr Chang.

20. From my reading of Dr Chang's report, there seems to be no good reason why the plaintiff cannot play mahjong. This is normally a social game, played with friends. No friend would mind if the plaintiff got up between hands and engaged in a bit of stretching. If he was playing social mahjong, the plaintiff could even share a seat with his cohabitee, and take a rest when he needed to. Sharing a seat with one's spouse is accepted practice in a social game of mahjong.

21. I cannot see any good reason why the plaintiff is unable to continue fishing. Fishermen are not forced to remain immobile like statutes. If necessary the plaintiff could rest his fishing rod on a stand or the side of a boat or even in the crevice of a rock. If he had been called, Dr Chang might have been able to tell the court whether it would be advisable for the plaintiff to go jogging or riding again. I am not in a position to make any findings on these matters.

22. As Dr Chang was not called to give evidence, the court cannot be sure of the basis on which he assessed the plaintiff's degree of permanent physical disability at 5%, and the degree of loss of earning capacity at 3%. However, on a strict interpretation of the penultimate paragraph of the report, which says "As result of this injury to the L2 vertebra, I would assess Mr Chair's degree of permanent physical disability to be 5% and loss of earning to be 3%", it would appear that those assessments are based purely on the fact that the L2 had been fractured.

PSLA

23. Whilst conceding that the injury suffered by the plaintiff fell outside the "serious injury" category as discussed in the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657, Counsel submitted that an award in the region of $250,000 to $300,000 would be appropriate. In support of that contention, Counsel referred me to the cases of Ma Chi Fu v Law Tit Wing (unreported) HCA No 3551 of 1981; Fu Chee Kong v Shun Fai Construction Co Ltd (unreported) HCA No 1247 of 1988; Bou Kwok Leung Timothy v Yuen Ming Sun (unreported) HCA No A2706 of 1987; Chan Kwai Ngor v Leung Fat Hang t/a Fu Dor Restaurant [1992]1HKC 408; Yu Kwok Shing v Colour Cell Far East Ltd (unreported) HCA No 3482 of 1993; and Law King Sang v Law Yin Sang (unreported) PI No 923 of 1995.

24. In deciding the appropriate award, the Court of Appeal in Lee Ting Lam stated that how much should be awarded is directly related to whether the injury suffered falls into or outside the categories described, in rising order of severity. The decision whether a case falls within or outside of any category is to be established by comparison with other decided cases. The quantum is then determined by what has been laid down by the Court of Appeal, with due allowance to cost of living and other inflationary factors. Serious Injury is the lowest category of the four categories considered in the Lee Ting Lam case. In describing that category the court said

" It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain."

25. In my view there are many factors which would take the plaintiff's injuries out of the lowest category. The majority of the findings by Dr Chang were normal. He reported that the plaintiff had full range of movement of the spine. The plaintiff's reflexes were all normal. There was no evidence of impairment of neurological deficit as a result of the spinal injury. . The fractured L2 vertebra had healed well. There was nothing protruding into or onto the spinal nerve to cause pain. Since all the leg measurements were equal for both sides, there is no indication of muscle wastage. Although the plaintiff said that he suffered recurrent pain, on the medical evidence before me there is no basis for this complaint.

26. Bearing in mind the circumstances of the accident and the treatment the plaintiff had endured as a result; the satisfactory healing of the L2 vertebra; the after effects of the fractured vertebra on the plaintiff's lifestyle; the contents of the medical reports discussed above; and by comparison with all the cases cited, I find that an award of $150,000 for PSLA would be appropriate.

Loss of Earnings

27. I accept the evidence of Mr Pun that the plaintiff suffered a loss of earnings during the time he was on sick leave. I accept that the plaintiff did not receive any on-duty director's allowance from either the pub or the restaurant for about 8 months, and was on a reduced salary for about 3 months. I accept Counsel's calculations on this head of damage.

Those calculations were :

1. The pub

(Median income of $42,257.80 x 8 months) +(3 months @ $22,257.80); i.e. $338,062.80 + $66,773.40 = $404,836.20.

The award for loss of earnings from the pub is $404,836.20.

2. The restaurant

($10,000 x 8 months) + (3 months @ $5000) = $95,000.

The award for loss of earnings from the restaurant is $95,000.

The total loss of earnings from the pub and the restaurant is $499,836.20.

Future Loss of Earnings

28. The documentary evidence from the pub and the restaurant shows that the plaintiff's earnings had returned to their pre-accident level from about May 1996 onwards, and has remained at that level consistently up to the present. There is nothing in Dr Chang's report to show why the plaintiff cannot cope with his work in the way he did prior to the accident. The plaintiff does not have to sit still for 2 hours or more at either the pub or the restaurant performing his duty as manager. Both establishments are situated within walking distance in Kowloon. The short walk between the pub and the restaurant would probably even be beneficial to him. The evidence adduced does not support a finding of loss, in the circumstances no award is made for future loss of earnings.

Out of pocket expenses

a. The claims for hospital fees and conventional medical treatment at the hospital and clinic are supported by documents and are allowed. Those expenses are the $300 incurred at the Prince of Wales Hospital; the $120 incurred at the Cheshire Home; 3 outpatient receipts @ $120; $50 spent on crutches; $155 spent on the back brace. These come to a total of $745.

b. The medical reports of Dr YL Lee and Dr Chang at $555 and $8000 respectively will be allowed.

c. Taxi fares

The taxi fares to and from the Cheshire Home of $120 is allowed.

As the medical reports state that the plaintiff only made one visit to the Li Ka Shing Specialist Clinic, $240 is allowed.

The taxi fares claimed for visits to the bonesetters are disallowed for the reasons given below.

d. Bonesetter treatments

29. A sum of $52,800 is claimed for bonesetter treatments. These treatments by the bonesetter were not recommended by a doctor or some other qualified expert, but by a friend of the plaintiff. There was no evidence that this friend who gave this advice was medically qualified. The bonesetter himself was not called to give evidence despite an indication from the court. Fees for bonesetters are sometimes allowed in personal injury claims but in every case there must be cogent evidence that the treatments were beneficial. In Tang Kwong Chiu v Lee Fuk Yee [1980] HKLR 588 a herbalist cum bonesetter's fees were argued on appeal. The appellate court decided for the plaintiff on the basis that the trial judge had the benefit hearing the evidence of the herbalist cum bonesetter himself, and was therefore in a position to evaluate the efficacy of the treatment (at page 591). Here the court has not heard from the bonesetter, despite an indication to call him to give evidence of the efficacy of the treatment.

30. On any view the sum of $52,800 is a large sum. These visits to the bonesetter are evidenced by a bundle of receipts. Many of these receipts cover multiple visits. The exact dates of the treatments are not recorded. If the receipts had been based on the bonesetter's contemporaneous records, there is no reason why the actual dates on which the treatments were given are not stated. For instance the receipt dated 25.3.96. merely says that there had been 3 treatments in the month of March. I noted other matters which made me doubt the reliability of the receipts. For instance, there is one receipt for a single treatment dated 26.12.96. which is Boxing Day. That day is a public holiday. This must be a very exceptional private medical establishment in Hong Kong to be open for business on a public holiday the day after Christmas. Even if I accepted that the plaintiff had visited the bonesetter for the number of visits stated in the receipts, it still cannot be shown that the manipulations of the bonesetter had been efficacious to the plaintiff's recovery. At most the manipulations brought the plaintiff transient relief for a few hours. I noted that the plaintiff had claimed that he can now work for several hours at a stretch due to the bonesetter's manipulations. I also noted that the plaintiff had said that the Western doctors at the Li Ka Shing Clinic had told that his injuries would recover in time. On balance, there is simply insufficient evidence to show that the bonesetter's manipulations were efficacious to the plaintiff's recovery. For all the reasons given above, including my doubts as to the veracity of the receipts, this item for bonesetter's fees is disallowed.

Medicinal Food

31. The plaintiff claims a total of $20,000 for the purchase of 2 deer's tails. He explained that his mother and the bonesetter Mr Man See had recommended that he take this special food to aid in his recovery. At $10,000 per tail, this is a very expensive item of special food. No evidence at all has been adduced on the advisability of that form of treatment. The Full Court laid down criteria on the subject of claims for Special Foods in Mui Ling Kwan v Wong Yin Wah [1973] HKLR 465. Briggs CJ said "At least since Shearman v Folland it has been customary to claim as special damages a sum for extra nourishment. And the courts have almost invariably allowed a reasonable sum for such a claim.

Whether such a sum is reasonable must depend on the circumstances of each case. If the figure is challenged it must be proved that there was expenditure on nourishment suitable to assist the recovery of the injured person. And it must be a reasonable sum. Obviously if a special diet is ordered by the physician or herbalist in charge of the case it should be allowed as an item of special damages, provided the amount is not unreasonable. What is not allowed is to saddle the defendant with the expenses of articles of luxury food and drink which cannot be said to be appropriate and necessary (in the widest sense) in assisting the cure of the injured person." (at page 472, emphasis mine) I am not prepared to saddle the defendants with the expenses of articles of luxury food which cannot be said to be appropriate and necessary in assisting the cure of the injured person. In the absence of evidence that the deer's tails would assist in the cure and/or recovery of the plaintiff this claim of $20,000 is not allowed.

32. There is another item of special food claimed. This is a sum of $5000 for materials to make nourishing soups. This is a reasonable sum. On the basis that a reasonable amount is allowed for nourishing foods, and on the criteria of the Mui Ling Kwan case, this sum of $5000 is allowed.

Total for out of pocket expenses $14,660 i.e. ($745 + $555 + $8000 + $120 + $240 +$5000).

Conclusion

PSLA	$150,000
Loss of Earnings	$499,836	.20
Out of Pocket Expenses	$14,660
Total	$664,496	.20

Total Gross award is therefore $664,496.20.

Interest is awarded at 2% p.a. on the PSLA award of $150,000 from the date of the writ 19.5.98. Interest is awarded at half judgment rate on the other awards from the date of the accident 20.5.95 to 19.10.99. and thereafter at full judgment until payment. I leave it to the plaintiff's solicitors to work out the amounts for interest.

The plaintiff is awarded the costs of the assessment, together with certificate for counsel. Such costs are to be taxed if not agreed.