MOHAMMAD, RAHEES KHAN v. MOK, SIU FAI KENNEDY

DCPI 1207/2023

[2026] HKDC 602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1207 OF 2023

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages for the Plaintiff’s claim arising out of a traffic accident occurred on 1 January 2022 (“the Accident”). At the material time, the Plaintiff was driving his vehicle when it was struck from the rear by a taxi driven by the Defendant.

2.  The Writ of Summons was issued on 21 April 2023. The Defendant failed to give a notice of intention to defend, and interlocutory judgment was therefore entered against him on 22 August 2023.

3.  The Plaintiff was born on 13 November 1969. He was 52 years old at the time of the Accident, and is now 56. At the time of the Accident, he was working as a driver for Uber (Asia) Limited (“Uber”).

4.  The Plaintiff is the sole factual witness on his side. The Defendant called no factual witnesses.

5.  A report prepared by the Single Joint Expert, Dr Lam Kwong Chin, (“the SJE”) has been adduced as evidence without calling the expert to testify.

THE PLAINTIFF’S CASE

6.  The Plaintiff’s case is that he sustained a back injury as a result of the Accident. He testified that upon impact, his body jerked forward and his chest and head hit his hands on the steering wheel. He said that he immediately experienced back pain.

7.  He did not seek medical attention immediately. Instead, he drove his vehicle back to his usual parking lot, parked it, and returned home to attend a party celebrating his son’s graduation from his Holy Quran studies. He explained that he hoped rest would alleviate the pain. But his back pain persisted.

8.  After the Accident, the Plaintiff continued to work as an Uber driver, but in a reduced capacity. By early April 2022, he said his back pain had become unbearable.

9.  On 10 April 2022, more than 3 months after the Accident, he went to the Accident & Emergency Department of United Christian Hospital for his back pain. He explained that due to the serious COVID-19 pandemic at the time, he was afraid of going to hospitals and worried about the risk of infection. He therefore managed his symptoms with pain relief medicine and cream.

10.  On 11 April 2022, he consulted Dr David Ip, a private orthopaedic specialist, at Wellness Clinic and Pain Center.

11.  Thereafter, the Plaintiff attended follow-up consultations and received treatment from both the hospital and Dr Ip. He was granted continuous sick leave from 10 April 2022 to 7 October 2024.

12.  The Plaintiff claims that his work as a driver required prolonged sitting in a forward-bending posture. Owing to the physical limitations he attributes to the Accident, he says he can no longer work in his pre-Accident capacity.

13.  The Plaintiff claims the following damages:

Head of claim	Amount (HK$)
Pain, suffering and loss of Amenities	100,000.00
Pre-trial loss of earnings	169,245.87
Pre-trial loss of MPF	8,462.29
Future loss of earnings	202,440.00
Future loss of MPF	10,122.00
Loss of earning capacity	25,000.00
Medical, traveling and tonic food expenses, and repair costs of the Plaintiff’s vehicle	25,500.00
TOTAL:	540,770.16

THE DEFENDANT’S CASE

14.  The Defendant’s principal contentions are as follows.

15.  The Plaintiff had various pre-existing medical conditions prior to the Accident. In particular, he had been receiving treatment at Queen Elizabeth Hospital (“QEH”) for neck pain and left frozen shoulder.

16.  The Plaintiff did not seek medical treatment for the alleged back pain until 10 April 2022. This delay of more than 3 months casts serious doubt on the genuineness of the alleged injury. Alternatively, the Plaintiff has failed to establish any causal relationship between the Accident and his alleged back pain.

17.  As regards loss of earnings, the Defendant contends that the Plaintiff was capable of resuming work as an Uber driver, as indeed he continued working after the Accident until April 2022.

18.  The Defendant pleads that no damages should be awarded if the Plaintiff fails to establish that his injuries and disabilities were caused by the Accident. However, if the Court is against him on causation, the Defendant’s alternative assessment is as follows:

Head of claim	Amount (HK$)
Pain, suffering and loss of Amenities	50,000.00
Pre-trial loss of earnings	18,891.19
Pre-trial loss of MPF	Nil
Future loss of earnings	Nil
Future loss of MPF	Nil
Loss of earning capacity	Nil
Medical, traveling and tonic food expenses, and repair costs of the Plaintiff’s vehicle	5,000.00
TOTAL:	78,891.19

ISSUES

19.  The principal issues for determination are:

(1)  What injuries or disabilities, if any, were caused to the Plaintiff by the Accident;

(2)  Whether and to what extent those injuries or disabilities affected the Plaintiff’s earnings and earning capacity; and

(3)  The appropriate quantum of damages.

OVERALL CREDIBILITY OF THE PLAINTIFF

20.  I respectfully adopt the principles governing the assessment of credibility set out by DHCJ Eugene Fung (as he then was) in Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009, 8 April 2014).

21.  The Plaintiff was cross-examined by Mr Alex Lai, counsel for the Defendant. Having observed the Plaintiff’s evidence under cross-examination, I find that he is, overall, neither a credible nor a reliable witness.

22.  First, the Plaintiff’s answers were frequently non‑responsive. He often failed to address the questions put to him, with many questions having to be repeated by counsel and by the Court. His reluctance to give direct answers was accompanied by a guarded and defensive manner. Taken together, he was not a forthcoming witness.

23.  Second, the Plaintiff’s explanations were inherently improbable and, at times, illogical. Parts of his evidence did not accord with undisputed or objective evidence, or even his own evidence given elsewhere.

24.  In particular, his professed fear of attending hospitals during the pandemic is inconsistent with the fact that he attended Tseung Kwan O Hospital (“TKOH”) on 3 January 2022 and QEH on 21 March 2022. His explanation for not seeking earlier medical attention to his alleged back pain is unconvincing.

25.  His explanation under cross-examination that he informed doctors at both TKOH and QEH of his back pain, but was advised by both to attend the Accident & Emergency Department, is inconsistent with the contemporaneous medical records, which make no reference to any complaint of back pain.

26.  The Plaintiff stated in Court that immediately after the Accident, he experienced severe pain, stood still and did not move. He further claimed that when he woke up the following day, he could not even walk. However, he also testified that after the Accident he drove his vehicle back to the parking lot and parked it. On 3 January 2022, when he attended TKOH, he went alone and was able to walk unaided, as recorded by the treating doctor and accepted by the Plaintiff under cross-examination.

27.  Moreover, the Plaintiff’s allegation of disabling back pain is contradicted by surveillance footage obtained by the Defendant on 29 January 2024. In that footage, the Plaintiff was observed walking at a normal pace with a normal gait. He could ascend and descend stairs, walked down an escalator, bent down to retrieve items in a supermarket, and carried grocery bags — including a 5‑kilogram bag of rice and a 2‑litre bottle of soft drink — while walking home. Just under one month later, prior to the SJE examination on 23 February 2024, the Plaintiff reported to the SJE that his pain intensity had been 10/10 immediately after the Accident and remained at 6/10 to 8/10 at that time. Even if I were to accept that the Plaintiff experienced some degree of pain while performing the activities shown in the footage, the level of functioning demonstrated is plainly inconsistent with the severity of pain he described to the SJE, and the pain could not have been as serious or disabling as alleged.

28.  Third, as will be elaborated below, the symptoms reported by the Plaintiff to the SJE were unsupported by objective findings. The SJE also recorded multiple positive Waddell’s signs, indicative of symptom exaggeration.

29.  Taking all matters into account, I do not regard the Plaintiff as a credible or reliable witness. My findings on the issues in this case are guided by that assessment.

THE SINGLE JOINT EXPERT EVIDENCE

30.  The Plaintiff was examined by the SJE on 23 February 2024.

31.  The Plaintiff reported persistent low back pain which worsened with various modes of physical strain and had improved by only 10-15%. On examination, he ambulated with a normal gait and required no assistance. X-ray imaging demonstrated features compatible with mild lumbar spondylosis, a degenerative condition, particularly at the L4/5 level.

32.  The SJE noted that the chronicity and intensity of the Plaintiff’s complaints were greater than would be expected for an uncomplicated back sprain sustained some two years earlier. There was no loss of lumbar lordosis and no paraspinal muscle spasm, indicating the pain was not of significant intensity. The symptoms and physical signs were largely dependent on voluntary effort, with multiple positive Waddell’s signs, which are indicative of symptom exaggeration.

33.  The Plaintiff also complained of lower limb pain and numbness. The SJE concluded that there was no genuine neurological deficit attributable to the Accident. Any genuine neurological deficit should have manifested soon after injury and persisted. However, the Plaintiff repeatedly demonstrated full motor power and intact sensation. The onset of left‑sided symptoms nearly two years post‑Accident could not be explained by lower lumbar pathology. MRI findings revealed no significant neurological entrapment.

34.  The SJE concluded that he was unable to establish a causal relationship between the Plaintiff’s alleged back pain in April 2022 and the Accident. He further observed that individuals of the Plaintiff’s age and body habitus commonly experience back pain even without trauma.

DISCUSSION AND ANALYSIS

35.  I turn first to the question of whether the Plaintiff sustained any injury or disability as a result of the Accident.

36.  For the following reasons, I find on a balance of probabilities that the Plaintiff did not suffer any injury or disability caused by the Accident.

37.  First, for the reasons already explained, I do not regard the Plaintiff as a credible or reliable witness.

38.  Second, there is a complete absence of contemporaneous or corroborative evidence supporting the Plaintiff’s assertion that he sustained a back injury as a result of the Accident. Although he alleges persistent back pain from the date of the Accident, there is no evidence that he sought any medical attention for such symptoms for a period of more than three months. There are no contemporaneous medical records, no complaints recorded in any clinical notes, and no documentary material suggesting that he reported or exhibited any back‑related symptoms during that period. Nor is there any supporting evidence from witnesses, such as family members or friends, who might reasonably have been expected to observe functional limitation, pain behaviour, or changes in his daily activities. Further, no objective evidence has been produced, such as written or electronic communications complaining of back pain, or receipts evidencing the purchase of medication, treatment, or supportive aids. In the absence of any such evidence, the Plaintiff’s assertion of injury rests entirely on his own account, which I do not accept.

39.  Third, I find that when the Plaintiff attended the doctors in the period shortly after the Accident, he made no complaint of back pain:

(1)  On 3 January 2022, two days after the Accident, he attended the Department of Medicine at TKOH for pre‑existing conditions. It is of note that he requested a urology referral, but made no mention of the Accident, any back pain, or any request for referral for back-related symptoms. He also did not seek any pain relief medication.

(2)  On 21 March 2022, he attended the Orthopaedics and Traumatology Department at QEH for pre‑existing shoulder complaints, yet again made no complaint relating to his lumbar spine.

40.  The Plaintiff asserted under cross-examination that on both occasions — at TKOH on 3 January 2022 and at QEH on 21 March 2022 — he did inform the attending doctors of his back pain. I reject his evidence in this regard. The contemporaneous medical records on both occasions make no reference whatsoever to any complaint of back pain.

41.  When questioned under cross-examination about visits to private clinics, the Plaintiff initially stated that he attended a clinic only for flu in about February 2022. Upon further questioning, he stated for the first time that he also mentioned back pain to the private doctor on that occasion. I do not accept this evidence. The Plaintiff made no mention in his witness statement of consulting a doctor for back pain in about February 2022. He did not tell the SJE about this visit. He produced no medical records or sick leave certificate relating to such an alleged visit. He was not even able to tell me the name of the doctor concerned.

42.  The Plaintiff must have been aware that the Defendant’s case was that he only sought medical treatment some three months after the Accident, and that causation had all along been a live and central issue. Had there in fact been a medical consultation in about February 2022 relating to back pain, the Plaintiff would reasonably have been expected — indeed, would have been eager — to produce such a record to demonstrate that his symptoms arose at an earlier stage. I find that, on a balance of probabilities, the non-production of any such record indicates that no such consultation took place and that no such record exists.

43.  Fourth, the Plaintiff’s conduct immediately after the Accident is inconsistent with the serious pain he later described. He was able to drive his vehicle back to the parking lot and subsequently attended a celebration for his son’s completion of Quran studies. According to his own account, he also drove his vehicle to Yuen Long for repair sometimes in January 2022. The evidence further shows that he resumed work as an Uber driver soon after the Accident. These activities are inconsistent with the presence of severe or disabling back pain.

44.  Fifth, although the Plaintiff attended UCH on 10 April 2022 complaining of unbearable back pain, I accept the SJE’s opinion that if an accident were to cause chronic disabling pain, the pain in the acute phase would be expected to be more severe. The Plaintiff offered no convincing explanation as to why the pain would only become unbearable some three months after the Accident.

45.  Sixth, although Dr Ip recorded findings of extensive lumbar soft tissue inflammation and muscle spasm on 11 April 2022, I accept the SJE’s evidence that such findings would not be expected in the case of a simple back sprain and would instead indicate unrelated inflammatory or infective causes.

46.  I do not lose sight of the evidence that, after the Accident, there were some months during which the Plaintiff earned less than he did prior to the Accident. However, there are numerous factors that may affect the income of an Uber driver. Customer demand, market conditions, and the impact of the COVID-19 pandemic all contribute to variability and fluctuation in earnings. In these circumstances, I do not consider it safe to place much weight on this evidence in assessing causation.

47.  For these reasons, I find that the Plaintiff suffered no injury as a result of the Accident. It follows that the Accident had no impact on his earnings or earning capacity.

QUANTUM OF DAMAGES

48.  In light of the above findings, I assess the Plaintiff’s claim as follows.

49.  As the Plaintiff suffered no injury attributable to the Accident, no award is made for pain, suffering and loss of amenities.

50.  For the same reason, the claims for pre‑trial and future loss of earnings, loss of MPF, and loss of earning capacity all fail.

51.  Likewise, no award is made for medical, travelling, or tonic food expenses.

52.  The final head of claim concerns vehicle repair costs of $5,000. I have reservations as to the genuineness of this claim.

53.  The Plaintiff said he repaired his vehicle at a cost of $5,000. The only documentary evidence he produced is a photograph of a purported receipt issued by New Egal Motors Development in January 2022 (with the precise date illegible), bearing receipt number 2727.

54.  However, the evidence before the Court also includes receipts from the same company bearing numbers “2659” dated 6 April 2022, “2668” dated 16 May 2022, and “2675” and “2676” both dated 15 June 2022. On the face of these documents, the receipt number “2727” is numerically later than all of the receipts issued between April and June 2022. I cannot understand why a receipt allegedly issued in January 2022 would bear a later receipt number than those issued several months afterwards. This gives rise to a legitimate concern as to the timing and reliability of the purported January 2022 receipt.

55.  Nevertheless, the Defendant has not challenged the authenticity of the receipt, and the Plaintiff was also not cross-examined on this subject matter. In his opening submissions, Mr Lai also conceded this item. I therefore allow this claim.

56.  Accordingly, I enter judgment for the Plaintiff in the sum of $5,000. I further award interest on this sum at the rate of 1% above the HSBC Best Lending Rate. As the purported repair receipt bears no legible date, although it is apparent that it was issued in January 2022, there is an absence of reliable evidence establishing the exact date on which the expense was incurred. In these circumstances, I consider it fair and appropriate to adopt the latest possible date within that month. I therefore order that interest on the awarded sum of $5,000 shall run from 31 January 2022 until the date of judgment. This approach avoids speculation as to the precise date while ensuring that interest does not accrue earlier than can be justified on the available evidence.

COSTS

57.  Although the Plaintiff has obtained an award of $5,000, he has failed on all the principal issues in this assessment. His claims in respect of injury, causation, and loss of earnings have been wholly rejected. The issue of vehicle repair costs occupied only a very small proportion of the trial time and the parties’ preparation, amounting to no more than 1% of the overall assessment. In substance, the Defendant is the winner in this assessment.

58.  In exercising my discretion, I make a costs order nisi that the Plaintiff do pay the Defendant’s costs on the issue of quantum, including all costs reserved, with certificate for counsel, to be taxed if not agreed. Any application to vary this costs order nisi shall be made by way of summons within the next 14 days.

59.  The Plaintiff’s own costs prior to the discharge of the legal aid certificate be taxed in accordance with the Legal Aid Regulations.

60.  I thank Mr Lai for his assistance rendered to the Court.